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45 Envtl. L. Rep. News & Analysis 11032 (2015)
Tropical Conservation and Liability for Environmental Harm

handle is hein.journals/elrna45 and id is 1084 raw text is: 









               Tropical

Conservation and

          Liability for


     Environmental

                   Harm



            by Carol Adaire Jones,
    John Pendergrass, John Broderick,
                and Jacob Phelps
    Carol Jones is a Visiting Scholar and John Pendergrass
    is Acting Vice President for Research & Policy at the
    Environmental Law Institute (ELI). John Broderick was
    a Law Fellow at ELI from 2014-2015 and is currently
    a Trial Attorney with the U.S. Department of Justice
  Environment and Natural Resource Division. Jacob Phelps
  is an environmental scientist at the Lancaster Environment
       Center, Lancaster University, United Kingdom.



                      Summary
Tropical countries face a host of challenges to their
natural environment and resources. Environmental
law liability provisions offer one set of potential protec-
tions. This Article surveys such provisions in a variety
of tropical country contexts. Of the seven countries
studied, spanning a range of legal systems and eco-
nomic development and environmental governance
performance, all but one have the authority to bring
liability claims for harms to the environment. How-
ever, a variety of impediments to effective implemen-
tation have resulted in a limited number of cases being
resolved, and frequently with low damage awards rela-
tive to the injuries. The authors offer a range of rec-
ommendations for improving the effectiveness of the
drafting and implementation of liability provisions to
promote environmental protection.


I.    Introduction


Many tropical developing countries face widespread unsus-
tainable resource extraction, landclearing, and industrial
development, placing them at the center of global efforts to
conserve tropical biodiversity and ecosystem services and
reduce greenhouse gas emissions.1 These losses not only
have profound ecological effects, but also impact human
well-being2 and deprive national economies of billions of
dollars in revenues, impeding sustainable development.
Beyond revenue losses, the indirect, long-term losses total
trillions of dollars annually3
   Despite the high costs to society from environmental
degradation, individual incentives to participate in many
environmentally deleterious activities often remain strong.
Policymakers are challenged to realign incentive structures
to promote environmental sustainability. One approach is
to enact effective laws and promote compliance, incentiviz-
ing individuals who weigh the costs of compliance against
the benefits (and risks) of noncompliance.'
   The international community has long promoted
the environmental rule of law. In 1982, the Govern-
ing Council of the United Nations Environment Pro-
gramme (UNEP) adopted the Montevideo Programme
to guide the development of environmental law.' Among
its objectives was the development of international law

Authors' Note: 7he research for this Article was conducted by ELI
and the Center for International Forestry Research (CIFOR)
as part of the CGIAR Research Program on Forest, Trees and
Agroforestry (CRP-FTA). 7he authors gratefully acknowledge funds
received from DFID KnowFor and ELI. Many individuals have
contributed research and insights into the country studies, including
Nicholas Bryner (Brazil), Annelise Steigleder (Brazil), Augustin
Mpoyi Mbunga (Democratic Republic of the Congo), Else Reynaers
(India), Sairam Bhat (India), Geetanjoy Sahu (India), Laode
Muhamad Syarif (Indonesia), Alejandra Rabasa (Mexico), Ali
Ahmad (Nigeria), Grizelda Mayo-Anda (Philippines), Antonio
Tony Oposa Jr. (Philippines), Jellie Molino (Philippines), and
Sandra Nichols 7hiam. We also thank Talia Fox, Elana Harrison,
Michael Lerner, Spencer Gall, Norka Michelen, Aletta Brady, and
Schuyler Lystad for their assistance with research.
1. See, e.g., Navjot S. Sodhi et al., Southeast Asian Biodiversity: An Impending
    Disaster, 19 TRENDS ECOLOGICAL EVOLUTION 654-60 (2004).
2. Sandra Diaz et al., Biodiversity Loss Threatens Human Well-Being, PLoS Bio.
    4(8), e277 (2006).
3.  WORLD HEALTH ORGANIZATION, MILLENNIUM ECOSYSTEM ASSESSMENT:
    ECOSYSTEMS AND HUMAN WELL-BEING, HEALTH SYNTHESIS (2005), avail-
    able at http://www.who.int/globalchange/ecosystems/ecosys.pdf; 7he Eco-
    nomics of Ecosystems and Biodiversity, http://www.teebweb.org/ (last visited
    June 29, 2015).
4. Gary Becker, Crime and Punishment: An Economic Approach, 76 J. POL.
    ECON., 169-217 (1968).
5. United Nations Environmental Programme (UNEP), Montevideo Pro-
    gramme for Development and Periodic Review of Environmental Law, De-
    cision 10/21 of the Governing Council (May 31, 1982), available athttp://


ENVIRONMENTAL LAW REPORTER


45 ELR 1 1032


1 1-2015

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