Allocating differential responsibility of pollution from environmental forensic investigation

Abstract

An environmental forensic investigation not just involves identifying who the polluter(s) is/are in an environmental pollution episode, but also estimating the monetary cost of the damage. When pollution occurs, there can be loss to lives, health, property and goods, in addition to degradation of the environment. The damages that occur to the environment were often neglected until a few decades back. Proper procedural and legal frameworks are important for allocating compensation to the victims of pollution and assigning the cost to the polluters, both for compensating victims (damages or the impact liability) and paying for clean-up activities (the remediation liability). Apart from the difficulty in calculating the actual cost associated with environmental pollution, there is another challenge, that of identifying the parties responsible and their share of liability. The goal of the current research is to propose a methodology for liability allocation in cases involving multiple polluters. The legal provisions and practices adopted in fixing the liability of pollution in different parts of the world when multiple parties are found to be responsible for the menacing scenario, were studied. A number of cases involving multiple polluters where the courts have given their decision were analysed to identify the principles adopted for responsibility allocation. Based on the analysis of different court cases as well as existing legal statutes for environmental redress, a list of factors including both technical as well as non technical factors could be arrived at. It was also found that the legal liability of pollution was different from the technical liability in many cases due to the influence of non-technical factors that were very specific to the case. Based on the analysis, it is suggested that the liability allocation be a two-stage process; the first stage being technical liability allocation done by the forensic expert and the second stage the final (legal) allocation by the court.