Corporate environmental civil liability

Under national law, corporate environmental liability comprises three aspects. Two of these aspects were addressed by the law at a relatively early stage: the criminal and administrative aspects. A third aspect has recently been recognized, first by the courts and then by the legislature (Law No. 2016-1087 of August 8, 2016): the civil aspect. Civil environmental liability must be understood as the obligation to address ecological harm, that is, to remedy damage caused to the environment, considered as such, regardless of its repercussions on persons and/or property. Environmental damage was not, however, entirely disregarded prior to this recognition. In fact, civil liability very early on took into account derivative environmental harms—that is, environmental damage due to its repercussions on persons and/or property—which encompass pecuniary, non-pecuniary, and bodily harm related to pollution. However, environmental damage did not constitute harm in and of itself. Due to its recent legal recognition and future developments, environmental civil liability will be the sole focus of this article. This liability arises in the event of an ecological accident, that is, a sudden and fortuitous event with ecological consequences.

First, we must examine national law by analyzing the rules governing the application of environmental civil liability, the admissibility of claims for compensation, and the effects of such liability (compensation primarily in kind and, alternatively, in cash). Next, it will be necessary to compare national law with European Union law. The latter does not provide for environmental civil liability but has established a system for remedying certain ecological damages, falling under administrative law. A connection must therefore be made between the two complementary systems of remedy (environmental civil liability and administrative law). Attention will also be given to the specific case of breach of the duty of care. Under French law, this duty applies to certain companies. A breach of this duty may cause, among other things, ecological damage (specific rules). Current national law and European developments in this area will be examined. Finally, examples of international conventions addressing the remediation of ecological damage will be presented.

The purpose of this article is to highlight the growing trend of environmental civil liability imposed on businesses, reflecting a desire to recognize their full environmental responsibility (a responsibility now accepted across all legal spheres: civil [which had been neglected until recently], criminal, and administrative). Such a development was not so obvious, since it involves remedying harm caused to nature, which lacks legal personality. Yet civil liability is an institution that was initially...