Environmental liability and the interplay between EU law and international law. By EmanuelaOrlando, London: Routledge. 2024. pp. 304. GBP 39.99 (pbk). ISBN: 9781032538747

Establishing appropriate and effective obligations of responsibility for preventing and repairing environmental damage constitutes one of the most long-standing and complex challenges of environmental law. Environmental liability implicates different fields of private and public law at multiple levels of governance. It also raises various challenges relating to access to justice, attribution of responsibility, measuring ecological damage, the role of transnational actors and extraterritorial impacts. The inherent complexity of environmental liability is reflected in the lack of a harmonised international regime. Instead, what has emerged is a complex regulatory landscape characterised by dynamic and eminent interactions between legal orders and regimes. Emanuela Orlando's book identifies and assesses this multi-layered regulatory landscape and demonstrates the impact of the interplay between international and European Union (EU) law. It makes a novel and significant contribution, not only by providing a comprehensive analysis of the current state of environmental liability regimes but also by exploring the interaction between EU and international law more broadly. Overall, the book provides a clear and concise analysis of multiple legal regimes. The doctrinal explanation of key legal concepts in both the EU and international legal orders renders the book also accessible to a non-expert audience. The aims of the book relate to three distinct issues: first, the elaboration and application of effective liability regimes for environmental damage through a comparative analysis of international and EU legal responses; second, the impact of the interaction between international and EU responses on the effectiveness of liability regimes; and finally, the interplay between EU law and international law more broadly. Reflecting its stated objectives, the book is structured in three main parts. Part 1 provides a comprehensive and in-depth analysis of international law frameworks on environmental liability, covering customary law of state responsibilities (Chapter 1), international principles on liability and allocation of loss for damage caused by lawful activities (Chapter 2) and sector-specific conventions establishing the liability of private actors on the basis of domestic civil liability and administrative law rules (Chapter 3). Part 1 discerns the development of core and uniform principles across various international law frameworks. It also highlights the remaining shortcomings of international frameworks from the perspective of victims of environmental damage. Part 2 analyses the harmonisation of liability regimes in the EU context. Chapter 4 discerns significant innovations, policy considerations and shortcomings of the Environmental Liability Directive.1 The Directive implements the polluter pays principle by creating an administrative law system requiring national authorities to ensure that polluters pay for the damage they cause. Among others, the analysis highlights the widened notion of environmental damage and the emphasis on ex-post prevention measures required, following the harmful event, to mitigate and contain further damage or avoid irreversible damage. Orlando also highlights the untapped potential of the Directive due to the variation and shortcomings in the implementation of this regime in different Member States. Chapter 5 explores how EU harmonisation of private international law contributes to addressing transnational environmental harm. Specifically, it examines the application of the Brussels I Regulation,2 and the Rome II Regulation,3 to transboundary environmental damage. Orlando demonstrates that the possibility for victims of environmental damage to choose the most appropriate forum and the applicable law enables private law accountability in relation to environmental damage. Notably, EU harmonisation of private international law rules has enabled foreign victims to bring an action before the courts of Member States against parent companies domiciled in the EU for damage caused by their subsidiary in a third country. Beyond demonstrating the benefits of these regulations in providing redress for environmental harm, Orlando also highlights the limits of EU harmonisation, which is confined to procedural aspects and does not extend to governing the liability of defendants located outside the EU. Looking to environmental damage beyond the EU's borders, Chapter 5 touches upon the Corporate Sustainability Due Diligence Directive (CSDDD),4 which was at a proposal stage at the time of writing the book but has since entered into force. Orlando anticipates that the coexistence between this new instrument and the Environmental Liability Directive will give rise to interesting research questions in a transnational context. The civil liability introduced by the CSDDD is expected to be complementary to the Environmental Liability Directive as it establishes a series of due diligence obligations and extends the liability of large EU-based companies beyond their own operations to cover their global value chain. Each of these parts of the book can be read on its own, providing an overview of the distinct levels of governance on environmental liability. The book highlights the inter-relationship between the distinct regimes within the international and EU realms separately and brings out important aspects of their application and contribution to establishing effective remedies, including insightful analysis on access to justice issues, which themselves are determined by the interaction between EU law and international law (particularly the effects of the Aarhus Convention on access to information, public participation and access to justice in environmental matters).5 Providing an in-depth and comprehensive analysis of both international and EU regimes relevant to environmental liability in one piece of work is, in itself, a valuable contribution to the scholarship on environmental liability. This is partly missing from existing scholarship, which often analyses distinct examples of sector-specific international liability instruments and the Environmental Liability Directive on its own. Analysing both the international and EU legal regimes enables Orlando to demonstrate significant trends of convergence between the different levels of governance, indicatively relating to the integration of prevention, and not only reparation, of environmental damage and a widened understanding of ‘environmental damage’, relating to the protection of the environment, independently from its utility to humans. Despite its holistic approach, the structure followed by the book, devoting five out of seven chapters to analysing the international legal framework separately from the EU law framework before focusing on the interaction between the two, renders the first two parts of the book partly descriptive, unnecessarily confining the most compelling analysis of the interaction between legal orders and regimes to the final part of the book. Part 3 provides an overview of the impact of EU participation in international liability regimes (both directly as a party to the agreement and indirectly through the participation of the Member States), identifying both positive and negative impacts on the international regime, in terms of influencing the choices made within these regimes and their likelihood of being ratified (Chapter 6). It also assesses the incorporation of international law in the EU legal order (Chapter 7). Orlando analyses key case law relevant to environmental liability. Among others, she extensively discusses Commune de Mesquer,6 which concerned a preliminary ruling determining which companies could potentially be held liable for the clean-up costs following the sinking of the Erika tanker off the coast of Brittany and the damage cost by the spill. The interplay between international law and EU secondary law, as interpreted by the Court of Justice of the EU (CJEU), enabled a ‘more meaningful redress’ (at 89), by expanding the range of potentially liable polluters to include Total as the seller-charterer of the ship carrying the hydrocarbons. Analysing such case law from the perspective of the EU's external relations principles, and particularly the scope and limits of consistent interpretation, offers significant insights into the CJEU's role in determining the effects of international law in the EU legal order. It also reveals the complex balancing involved in determining liability and allocating costs among multiple possible ‘polluters’ in line with the polluter pays principle, while upholding the EU's compliance with international law. Orlando skilfully engages in a systematic doctrinal analysis of EU external relations principles and their role in the EU's participation and influence of international regimes. Beyond the doctrinal contribution, Part 3 also offers explanatory perspectives, demonstrating legal and governance considerations of the interaction with international law that can also explain the policy choices made by the EU in relation to liability regimes and in identifying the most appropriate level of regulatory intervention. Notably, a substantial part of Chapter 6 on ‘The EU's contribution to international law-making in the field of environmental liability’ and Chapter 7 on ‘Substantive aspects of the interplay between EU law and international environmental agreements’ is devoted to presenting the treaty provisions, key case law, and some aspects of practice of EU external relations law governing the participation of the EU in international agreements, the relationship between the EU and the Member States, and the integration and effects of international law in the EU legal order. The introductory parts of these chapters offer a valuable source of insightful, comprehensive and up-to-date overview of EU external relations law principles and their application in the abstract and in relation to environmental law in general, rendering the book relevant for a broader audience. At the same time, we would expect to find such a doctrinal analysis of EU principles in a textbook or research handbook on EU external relations law and not in a research monograph. The general analysis somewhat detracts from the contribution of the book on analysing the interaction between EU law and international law in the specific field of environmental liability. Rather, focusing the analysis on how EU external relations law principles have been applied and operationalised in relation to regimes on environmental liability, and briefly explaining these principles along the way, would have further enabled the identification of special intricacies of environmental liability regimes and the specific influence exerted by EU law in this field. Additionally, since the author chose to present the relevant EU external relations law rules, for a truly integrated approach on the interaction with international law, the book should also have presented the other side of the coin. The interaction between the EU and international legal orders is not only determined by EU norms but also by rules of international law on jurisdiction, the coexistence of multiple treaty regimes and the operation of international organisations. Primarily presenting the EU law mechanisms for coordinating and managing potential conflicts between applicable legal regimes, with a distinct focus on the allocation of competences within the EU, presents an internationally myopic perspective of the interplay between the legal orders. An analogous overview of the relevant international rules that determine the limits of the EU's global role from an external perspective would have provided a more complete picture of the limitations and choices made as a result of the interaction. In terms of assessing the adequacy of the regulatory frameworks at different levels of governance, Orlando could have adopted a more explicit position on whether the existence of multiple regimes at different levels and their interaction between them is necessarily a bad or worse approach than a comprehensive international treaty regime. While it is indicated that a harmonised international regime is a legitimate and desirable objective, the analysis does not clearly and consistently clarify the relationship between the existence of multiple regimes and the degree of harmonisation with the achievement of more effective outcomes on environmental liability. In assessing the effectiveness of environmental liability regimes, there is a notable lack of definitions of key terms, particularly in relation to ‘effectiveness’, an under-defined and under-examined concept in legal scholarship, whilst forming a central aspect of the book's analytical approach in assessing the impact of the interaction on the operation of the liability regimes and ensuing remedies. The lack of a normative discussion on effectiveness creates a series of open questions. What are the criteria or spectrum used to assess the effectiveness of available remedies? Does more harmonisation and integration equal more effectiveness in terms of preventing and repairing environmental damage? Does the existence and interaction between multiple regimes render measuring effectiveness more challenging given that objectives may not be clearly and consistently defined, and compliance is dispersed at different levels from different actors? Not committing to specific definitions on liability and effectiveness is partly justified to enable inclusiveness, given that part of the book's objective is to map and discern current developments on liability regimes, covering both the responsibility of states and private actors and different kinds of environmental damage. At the same time, some definitions would have provided more clarity and strengthened the normative contribution of the book. In explaining and assessing the relationship between international and EU law, Orlando uses ‘mutual supportiveness’ as a conceptual frame to determine the extent to which this relationship is one of coexistence, potential conflict or of complementarity and reciprocal supportiveness. She interestingly draws out two elements of this concept: an interpretative function and an ex-ante decision-making function, which seek to reconcile and coordinate different regimes. One of the key contributions of the book is that Orlando adapts and transposes ‘mutual supportiveness’ as a concept from the international realm in which it has been more widely applied to explore the interaction between regimes at the international level horizontally, to the vertical dimension in exploring the interactions between EU law and international law. While partly rooted in principles of international law (good faith) and EU law (the consistent interpretation of EU law in light of international law), mutual supportiveness is used by Orlando as an ‘ideal or aspirational standard’ (at 262) to assess the performance of the interaction and to demonstrate its potential to lead to more effective responses to liability in environmental matters. Its use as such a standard, however, was not fully harnessed in the more specific assessment of the different regimes and legal orders. It sometimes appears as an afterthought and is not systematically applied as a benchmark of assessment. From an international law perspective, it would have been helpful to link mutual supportiveness to rules of international law on the coexistence of multiple regimes. From an EU law perspective, mutual supportiveness largely depends on the operationalisation of fundamental principles of EU external relations law, relating to the integration of international law in the EU and the preservation of the autonomy of EU law. Autonomy underlines both the participation of the EU in international regimes but also its global leadership in inspiring and incentivising international developments through its internal regulation. While select principles of EU external relations law were doctrinally explored, the principle of autonomy was strikingly not utilised to analyse and assess their operationalisation in relation to environmental liability. Even if not explicitly referred to in the case law, legislation or policy instruments discussed, autonomy is an overarching ‘umbrella’ principle that drives and potentially explains the CJEU's approach to determining the effects of international law in the EU legal order. Exploring its function in the context of mutual supportiveness as a ‘vertical’ standard of assessment on the interplay between EU and international law would have further strengthened the analytical framework developed by Orlando. Overall, Orlando offers a multi-layered exploration of the dynamic interactions between different legal orders and regimes on environmental liability, demonstrating a comprehensive picture of the current regulatory reality on environmental liability, dynamically and incrementally adapting and reflecting the growing effects of globalisation and heightened interdependencies between different levels of governance. The open questions and the invitations for further elaboration on the intersection between EU law and international law identified in this review demonstrate the richness and lasting relevance of Orlando's analytical approach for understanding and assessing both the adequacy of multiple regimes at different levels of governance and the role of the EU in exerting influence on international regulatory developments.