Public and private in the law of environmental liability

Growing concerns for the protection of the environment have recently determined the emergence of new perspectives on the question of liability and reparation for environmental damage. The main pillar around which such evolution has taken place is the concept of ecological damage and the progressive legal recognition of damage to the environment and to natural resources as a self-standing value. Alongside its classic function of providing compensation to private victims of environmental pollution, the law of liability has been increasingly regarded as a mechanism to ensure the restoration of the impaired natural resources as well as a powerful tool for the protection of the environment. Consequently, classic private law approaches to environmental damage as featured in civil liability rules or in the common law of tort have been paralleled by new types of liability regimes aimed at the restoration of natural resources and the environment. It has become necessary to adjust certain features typical of private law liability schemes to cope with the specificities of harm to natural resources. Overall, a public-oriented approach to liability, based on a central role of the state in the enforcement process, was considered as more appropriate to reflect a broader understanding of the environment as a public, collective good and as a ‘shared responsibility’. Looking at recent developments taking place on the international level, this paper will argue that not necessarily are public and private aspects of liability mutually exclusive and that the legal systems at national and on the international level are increasingly moving towards the coexistence of classic civil liability regimes with public law approaches to the reparation of environmental harm.