Environmental Regulation and Civil Liability Under Causal Uncertainty: An Empirical Study of the French Legal System
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Pierre Bentata
Abstract
The key question in this article is to determine whether regulation and regulator information can help to solve causal uncertainty problems in liability. A widely held view among Law and Economics scholars is that civil liability alone is not well-suited to cope with environmental accidents, especially where causation is uncertain or costly to establish. Instead of a simple civil liability rule, it is therefore advocated that a regulatory system be implemented combined with a public insurance scheme, or, alternatively, to institute a mix of regulation and civil liability. Such a mix of regulation and civil liability prevails in French law, and this article presents an original analysis of French court decisions concerning cases of environmental accidents for which causation was uncertain and in which regulators were not able to control for levels of organizational and human care. The dataset covers more than 50 years of trial outcomes from the highest civil and criminal court in France – Cour de Cassation. Our results seem to provide evidence that regulation provides a new way to address causal uncertainty at the liability stage. This may be due to a transfer of information from regulators to judges and to the adoption by judges of a probabilistic approach to causation.
Appendix
Cases by year
References
Angelova, V., G.Attarassi, and Y.Hiriart. 2011. “Relative Performance of Liability Rules: Experimental Evidence,” International Workshop on Economic and Financial Risks, Niort.Suche in Google Scholar
Bhole, B., and J.Wagner. 2008. “The Joint Use of Regulation and Strict Liability with Multidimensional Care and Uncertain Conviction,” 28International Review of Law and Economics123–132.10.1016/j.irle.2008.02.008Suche in Google Scholar
Boyer, M., and D.Porrini. 2001. “Law Versus Regulation: A Political Economy Model of Instruments Choice in Environmental Policy,” in D.A. Heyes, ed. Law and Economics of the Environment. Chelthenham: Edward Elgar Publishing.Suche in Google Scholar
Clermont, K.E., and T.Eisenberg. 1998. “Do Case Outcomes Really Reveal Anything About the Legal System? Win Rates and Removal Jurisdiction,” 83Cornell Law Review581.Suche in Google Scholar
De Geest, G., and G.Dari-Mattiacci. 2003. “On the Intrinsic Superiority of Regulation and Insurance Over Tort Law,” Working Paper, Utrecht University.Suche in Google Scholar
De Geest, G., and G.Dari-Mattiacci. 2007. “Soft Regulators, Tough Judges,” 15Supreme Court Economic Review119–140.10.1086/656029Suche in Google Scholar
Dewees, D., D.Duff, and M.Trebilcock. 1996. Exploring the Domain of Accident Law: Taking the Facts Seriously. New York: Oxford University Press.Suche in Google Scholar
Eisenberg, T., T.Fisher, and I.Rosen-Zvi. 2011. “Case Selection and Dissent in Courts of Last Resort: An Empirical Study of the Israel Supreme Court,” Cornell Legal Studies Research Paper No.11_23.10.2139/ssrn.1857987Suche in Google Scholar
Faure, M. 2007. L’Analyse Économique Du Droit De l’Environnement. Bruxelles: Bruylant.Suche in Google Scholar
Gujarati, D., and D.Porter. 2009. Basic Econometrics, 4th ed. New York: McGraw-Hill International Edition.Suche in Google Scholar
Hawkins, K. 1983. “Bargain and Bluff: Compliance Strategy in the Enforcement of Regulation,” 5Law and Policy35–73.10.1111/j.1467-9930.1983.tb00289.xSuche in Google Scholar
Hinteregger, M. 2008. Environmental Liability and Ecological Damage in European Law (M. Hinteregger, ed.). Cambridge, UK: Cambridge University Press.10.1017/CBO9780511494970Suche in Google Scholar
Hiriart, Y., D.Martimort, and J.Pouyet. 2004. “On the Optimal Use of Ex Ante Regulation and Ex Post Liability,” 84Economic Letters231–235.Suche in Google Scholar
Hiriart, Y., D.Martimort, and J.Pouyet. 2010. “The Public Management of Risk: Separating Ex Ante and Ex Post Monitors,” 94Journal of Public Economics1008–1019.Suche in Google Scholar
Hutchinson, E., and K.van’t Veld. 2005. “Extended Liability for Environmental Accidents: What You See Is What You Get,” 49Journal of Environmental Economics and Management157–173.10.1016/j.jeem.2004.03.003Suche in Google Scholar
Hylton, K. 2002. “When Should We Prefer Tort Law to Environmental Regulation?” 41Washburn Law Journal515–534.10.2139/ssrn.285264Suche in Google Scholar
Innes, R. 2004. “Enforcement Costs, Optimal Sanctions, and the Choice Between Ex-Post Liability and Ex-Ante Regulation,” 24International Review of Law and Economics29–48.10.1016/j.irle.2004.03.003Suche in Google Scholar
Kagan, R. 1978. Regulatory Justice: Implementing a Wage-Price Freeze. New York: Russel Sage Foundation.Suche in Google Scholar
Kolstad, C.D., T.S.Ulen, and G.V.Johnson. 1990. “Ex Post Liability for Harm vs. Ex Ante Regulation for Safety: Substitutes or Complements?” 80American Economic Review888–901.Suche in Google Scholar
Laffont, J.-J. 1990. “Analysis of Hiden-Gaming in a Three-Tier Hierarchy,” 6Journal of Law, Economics and Organization301–324.Suche in Google Scholar
Ministère de l’Ecologie du Développement Durable du Transport et du Logement. 2010. “Répartition Des Sites ICPE Et Seveso,” http://www.statistiques.developpement-durable.gouv.fr/lessentiel/article/333/1200/repartition-spatiale-installations-classees-soumises.html.Suche in Google Scholar
Neumann, G., and J.Nelson. 1969. “Safety Regulation and Firm Size: Effects of the Coal Mine Health and Safety Act of 1969,” 25Journal of Law and Economics183–199.Suche in Google Scholar
Ogus, A. 2004. Regulation: Legal Form and Economic Theory. Oxford: Hart Publishing.Suche in Google Scholar
Pashigian, B. 1984. “The Effect of Environmental Regulation on Optimal Plant Size and Factor Shares,” 27Journal of Law and Economics1–28.10.1086/467056Suche in Google Scholar
Peng, C.-Y., K.L.Lee, and G.M.Ingersoll. 2002. “An Introduction to Logistic Regression Analysis and Reporting,” 96The Journal of Educational Research1–13.10.1080/00220670209598786Suche in Google Scholar
Porat, A., and A.Stein. 1997. “Liability for Uncertainty: Making Evidential Damage Actionable,” 18Cardozo Law Review1891–1960.Suche in Google Scholar
Posner, R. 1972. Economic Analysis of Law. Boston, MA: Little Brown.Suche in Google Scholar
Priest, G., and B. Klein. 1984. “The Selection of Disputes for Litigation,” 13Journal of Legal Studies1–55.10.1086/467732Suche in Google Scholar
Richardson, G., P.Burrows, and A.I.Ogus. 1982. Policing Pollution: A Study of Regulation and Enforcement. Oxford: Oxford Clarendon Press.Suche in Google Scholar
Rose-Ackerman, S. 1991. “Regulation and the Law of Torts,” 81American Economic Review54–58.Suche in Google Scholar
Rose-Ackerman, S. 1995. Controlling Environmental Policy. London: Yale University Press.10.12987/9780300160840Suche in Google Scholar
Schmitz, P. 2000. “On the Joint Use of Liability and Safety Regulation,” 20International Review of Law and Economics371–382.10.1016/S0144-8188(00)00037-5Suche in Google Scholar
Shavell, S. 1980. “An Analysis of Causation and the Scope of Liability in the Law of Torts,” 9Journal of Legal Studies463–516.10.1086/467650Suche in Google Scholar
Shavell, S. 1984. “A Model of the Optimal Use of Liability and Safety Regulation,” 15Rand Journal of Economics271–280.10.2307/2555680Suche in Google Scholar
Shavell, S. 1985. “Uncertainty Over Causation and the Determination of Civil Liability,” 28Journal of Law and Economics587–609.10.1086/467102Suche in Google Scholar
Shavell, S. 1987. Economic Analysis of Accident Law. Cambridge, MA: Harvard University Press.10.4159/9780674043510Suche in Google Scholar
Sintez, C. 2011. La Sanction Préventive En Droit De La Responsabilité Civile. Nouvelle Bibliothèque de Thèses.Paris:Dalloz.Suche in Google Scholar
Untermaier, J. 2009. “Les Dimensions Scientifiques De La Responsabilité Environnementale,” in C.Cans, dir. La Responsabilité Environnementale, 5–15. Thèmes & Commentaires. Paris: Dalloz.Suche in Google Scholar
Van Lang, A. 2007. “Droit De l’Environnement,” Presses Universitaires de France, Collection “Thémis”.Suche in Google Scholar
Viscusi, W.K. 1988. “Product Liability and Regulation: Establishing the Appropriate Institutional Division of Labor,” 78American Economic Review300–304.Suche in Google Scholar
Viscusi, W.K., J.E.Harrington, and J.M.Vernon. 1995. Economics of Regulation and Antitrust. Cambridge, MA: MIT Press.Suche in Google Scholar
- 1
According to Sintez (2011), under certain circumstances, risk exposure is considered to be a moral prejudice and can be compensated. He explains that the owner of an oil tank situated in a residential area has been sentenced to award damages to local residents because his installation increased the scope of the damage in case of a potential fire. Cass. Civ. 2nd, 07/16/1982.
- 2
Loi relative aux Installations Classées pour la Protection de l’Environnement (ICPE).
- 3
Among ICPE facilities subject to authorization, we find the riskiest facilities – quarries, nuclear plants – also classified as Seveso (high-risk) facilities and IPPC (most polluting) facilities. See The Inspectorate of Classified Installations. http://www.installationsclassees.developpement-durable.gouv.fr/
- 4
Indeed, optimal regulation has to take into account the abatement costs heterogeneity of the regulated facilities and therefore the regulator needs to cooperate with facility owners to acquire private information from the regulated industry. See Ogus (2004), Viscusi et al. (1995) and Richardson et al. (1982).
- 5
Bureau de Recherche Géologique et Minière (Bureau of Geological and Mining Research).
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Institut National de l’Environnement Industriel et des Risques (National Institute for Industrial Environment and Risks).
- 7
Regional Departments of the Environment, Planning and Housing.
- 8
Lamyline and Dalloz, www.lamyline.fr; www.dalloz.fr.
- 9
Before the 1970s, very few cases were found. They have been selected with the keyword trouble de voisinage. It seems obvious because of the relatively recent use of the word environment.
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Most of the 3,206 cases were not directly related to environmental accidents, although they contained one or more keywords. For instance, more than 300 cases were concerned with environmental taxation and more than 1000 cases were concerned with trouble de voisinage where pollution was not an issue.
- 11
Cases concerning causal uncertainty are also more accepted by courts today than in 1956. See Appendix.
- 12
For instance, during year 1992, the victims won 50% of their trials, they invoked careless organization in 17% of the cases and in 25% of the cases scientific environmental reports were available. 17% of the cases concerned suspected injurers who did not comply with regulation and an ICPE facility was suspected in 14% of the cases.
- 13
We use a Prais–Winsten regression. Tests are computed on Stata 10 and SPSS. Results are the same with both software.
- 14
07/19/1976: entry into force of the ICPE Act.
- 15
From an econometric point of view, the year 1986 appears to introduce a structural change so we created a dummy variable (noted “1” after 1986 and “0” before) that we combine with the variables ORGA and EXPERT. See Gujarati & Porter (2009:285-288).
- 16
Ministère de l’Ecologie du Développement Durable du Transport et du Logement. Répartition des sites ICPE et Seveso. http://www.statistiques.developpement-durable.gouv.fr/lessentiel/article/333/1200/repartition-spatiale-installations-classees-soumises.html
- 17
See Section 4.2.3.
- 18
This result is in line with the concept of “cheapest evidence avoider” put forward by Porat and Stein (1997).
©2013 by Walter de Gruyter Berlin / Boston
Artikel in diesem Heft
- Frontmatter
- The Problem with the Holdout Problem
- Do Warrants Matter?
- Shop Crime and Deterrence: Evidence on Shoplifting among Young People in the Youth Lifestyle Survey (YLS)
- Environmental Regulation and Civil Liability Under Causal Uncertainty: An Empirical Study of the French Legal System
- Equilibrium and Welfare in a Model of Torts with Industry Reputation Effects
Artikel in diesem Heft
- Frontmatter
- The Problem with the Holdout Problem
- Do Warrants Matter?
- Shop Crime and Deterrence: Evidence on Shoplifting among Young People in the Youth Lifestyle Survey (YLS)
- Environmental Regulation and Civil Liability Under Causal Uncertainty: An Empirical Study of the French Legal System
- Equilibrium and Welfare in a Model of Torts with Industry Reputation Effects
