This study analyzes the responsibility framework for environmental risks from legal, economic, and philosophical perspectives, focusing on both individual and state-level accountability. Recognizing the need for proactive (ex-ante) risk management, we challenge the current frameworks that only respond after damage occurs. Tort liability, which operates on the damage-compensation axis, has disadvantages in terms of environmental protection. Besides, pre-determined norms can lead to standards that are either excessively strict or too lenient than necessary before damage occurs. Moreover, the stochastic nature of environmental risks renders them unsuitable for purely normative consideration. We argue that pure normative approaches fail to consider the case-specific and dynamic nature of environmental risks. Instead, our study proposes probabilistic liability. The legal foundation of probabilistic liability lies in the recognition that the customary no-harm obligation encompasses the risk of harm as well. The research question of our study is: What is the legal consequence of causing a risk of harm? Drawing on insights from the theoretical arguments of the reality of risk, probabilistic causation, and risk attribution, we propose an innovative solution: courts mandating “judicial insurance” for those posing environmental risks. Courts may identify the coverage gap resulting from activities altering risk values and impacting sustainability in the incident under consideration. To address this gap, courts may enforce insurance obligations on operators under market conditions. This introduces a probabilistic liability model applicable to both states and individuals. This novel approach offers a more effective and adaptable mechanism for managing environmental risks while ensuring accountability and sustainability.
A critical challenge in environmental law is the environmental protection gap. This gap exists because environmental changes that we perceive as "risky" or "polluting" may not translate into immediate, legally actionable damage. For instance, gradual increases in pollution levels might not cause immediate damage but pose a significant long-term risk to ecosystems and human health. To close this gap, banning certain categorical behaviors represents a punitive methodology. Criminal law is concerned with whether a violation has occurred under the criminal norm, rather than the damage. The threshold for criminal liability is indeed the norm itself, while the sanction is categorical. However, the criminal law terminology proposed by Roberto Ago was not adopted in the 2001 ARSIWA. It is particularly challenging to address environmental risks solely through normative responsibility. Norms lack the f lexibility to evolve in response to environmental data. Once norms are established, they inherently serve as a basis for responsibility. It is not feasible to argue that these norms are either too flexible or too strict on a case-by-case basis. Furthermore, the ability of the individual who committed a normative violation in the case to present contrary evidence is diminished. Therefore, environmental risks should be addressed through a contentious approach. This implies that instead of the regulation-centric "police" approach in precautionary policy, the dispute resolution-focused "nuisance" approach should be favored.
In the nuisance approach, courts have been criticized for only assessing compensation after damage has occurred or addressing violations of casuistic norms. The limited application of the principle of prevention solely within procedural obligations underscores the need to develop new legal avenues that courts can implement. How should courts establish disputes on environmental risks? How consistent is it to consider all elements of the environment based on property rights, starting from the tragedy of the commons? In our study, we explore the implications of addressing environmental issues, often expressed as negative externalities, through the lens of sovereignty and property concepts. Some argue that optimal environmental protection can be achieved through disputes based on property rights. However, this viewpoint has faced criticism due to the expansive powers granted by property rights. We advocate for sustainability as the guiding principle for environmental protection, rather than solely relying on property rights. Our framework, anchored in sustainability, seeks to elucidate the liability regime stemming from environmental risks.
The advancements in modern physics, exemplified by the 2022 Nobel Prize in physics, have unveiled a probabilistic understanding of physical reality. These developments, highlighting probabilistic causality and attribution, are particularly significant in judicial proceedings where data from natural sciences are utilized. Our study delves into the reality of risk, drawing a distinction between probability and possibility to better understand and address environmental challenges. IPCC characterizes real possible risks by assigning various values such as "virtually certain" or "very likely" to specific probability ranges. The judicial significance of this qualification lies in the judge's ability to impose legal sanctions on individuals and states who cause possible risks. This is because causing risk warrants legal examination, akin to causing harm, due to the probabilistic structure of physical reality, which allows for the attribution of responsibility based on probability assignments.
The final impetus to broaden the locus standi of environmental risks lies in their attributable nature. The ability to ascertain diseases and other damages caused by environmental risks enables the assignment of probabilities to the actions responsible for the risk in question. The institution that establishes liability to this extent of probability is ultimately presented as judicial insurance. Conditions of judicial insurance as follows: i- There is a possible risk against environmental sustainability; ii- This risk should be attributed to the defendants and directed to the plaintiffs, and iii- The risk should not create irreversible environmental pollution and should not violate minimum safety standards. Courts can identify the coverage gap resulting from the risk caused by business owners and establish an insurance policy to mitigate this gap. To achieve this, the court may conduct an open tender for insurance companies to insure the determined amount, ensuring premiums align with market conditions. Consequently, individuals and states exposed to risk obtain environmental assurance. Our study advocates for a probabilistic liability model that can be applied at international, human rights, and national levels.
Specific details regarding the jurisdiction, nature, and conditions of judicial insurance are also provided. When causing risk is recognized as a liability, the insurance institution no longer serves as a "license to pollute." In categorical compulsory insurance, insurers' role as environmental commissars is balanced. The moral hazard problem arising after insurance, stemming from the free insurance market, is addressed. Optimal public intervention in environmental risk management is proposed as a dynamic and contested system with risk liability before international and national courts. Thus, the aim is to diversify legal instruments for achieving environmental sustainability goals.