Buitencontractuele aansprakelijkheid voor milieugerelateerde angstschade, een rechtsvergelijkende en psychologisch geïnformeerde analyse

Introduction Problem statement Over recent decades, awareness of environmental dangers has grown, which is positive because understanding risks enables preparation and resistance. Fear for those dangers, too, can be useful as an evolutionary survival instinct, motivating action. However, when threats like earthquakes, toxicity or climate change become pervasive and seemingly unavoidable, fear turns into harmful dread. This harm may arise through unlawful imposition of risks. Illustrative cases include Groningen gas drilling causing earthquakes and constant anxiety, Manfredonia's chemical factory emitting arsenic and prompting ECtHR compensation for fear of accidents, and PFAS contamination in Antwerp creating long-term health risks and widespread worry. In modern society, where such environmental threats accumulate, the question needs to be asked: How should courts address the present harm caused by living under a sword of Damocles? This phenomenon of harm resulting from fear has sparked concerns in legal scholarship. Some of them voice the floodgate argument, the concern that allowing such a claim would lead to mass litigation and insolvency issues. However, in this thesis, I focus on more fundamental legal questions. Indeed, harm resulting from fear challenges the DNA of extracontractual liability law, which traditionally focuses on personal interests, certain harm, and ex-post remedies. Can citizens invoke their fear for political issues as a personal interest and consequently use their fear as a basis for public interest litigation? Can fear for uncertain dangers circumvent the principle that extracontractual liability law traditionally applies to cases of certain harm? Lastly, can extracontractual liability law, which is traditionally conceived of as an ex-post mechanism, offer remedies that target the source of the fear and thus indirectly gain a preventive component? Research question(s) The aim of this thesis is to find a sound way for the Dutch and Belgian legal systems to deal with harm resulting from fear in environmental cases. To that end, the main research question is: How should the Dutch and Belgian legal system assess and incorporate claims for harm resulting from fear in environmental cases? To obtain a clear and thorough answer, the research is divided into a five-stage plan, each stage being accompanied by a separate subquestion. How do the Dutch and the Belgian legal system currently assess and incorporate a claim for harm resulting from fear in environmental cases? I started by examining how harm resulting from fear can be embedded into the broader extracontractual liability law framework in Belgium and the Netherlands. What are the main similarities and differences in the Belgian and the Dutch approach? After having studied the Dutch and the Belgian approach thoroughly, I compared the two. Despite their apparent conceptual differences, a functional comparative analysis revealed that the two legal systems reach highly similar results in practice. In which ways can the Dutch and the Belgian approach to harm resulting from fear draw inspiration from the French and American approaches? While the French and American legal systems have not been subject to a thorough comparison, they have provided inspiration, especially regarding the assessment of the reasonability of a fear. In which ways can psychological research on solastalgia help legal systems in understanding and assessing extrapatrimonial harm in environmental cases? I employed a scoping review to inform the legal approach to harm resulting from fear with a psychological perspective. Solastalgia, i.e. the psychological experience of changes to a familiar environment, was central to this research stage. How should the Dutch and Belgian legal system assess and incorporate harm resulting from fear claims in environmental cases? Finally, I evaluated the results found throughout the text, using a normative framework that considers the psychological perspective, the victim-perspective and a sustainability perspective, without deconstructing the foundations of extracontractual liability law. Structure of the study In the first chapter, fear and liability, I give a general introduction to liability for harm resulting from fear, with some background information that can be useful for the reader to remember throughout the analysis. In the second chapter, fear and solastalgia, I introduce the reader to solastalgia and its surrounding body of literature. I delve into the concept, the main empirical findings it has led to and the reasons why it is well-suited for a legal but psychologically informed analysis. In the third chapter, fear and harm, I delve into the harm aspect of claims for harm resulting from fear. I first study the notion of harm up close. Subsequently, I apply it to harm resulting from fear in an environmental context. I also point out that harm resulting from fear can be presumed. In the fourth chapter, fear and reason, I delve into questions that revolve around unreasonable fear. I search for legal bases to limit unreasonable fear, and I develop a test with which to measure the reasonability of fear. In the last chapter, fear and relief, I provide an overview of remedies that can be ordered in cases of harm resulting from fear, with an emphasis on preventive opportunities. Main results Chapter 1. Fear and liability This first chapter serves as an introduction to extracontractual liability law encountering harm resulting from fear. First, it gives a brief overview of how harm resulting from fear has been received in the various legal systems relevant to the present study. In all legal systems, the context of toxic exposure provided fertile ground for the claim to blossom. However, in many of them, the harm resulting from fear is slowly but surely making its way to other types of cases, such as the earthquakes case in Groningen, the PIP-scandal in France and climate change litigation in Belgium. The question remains: how to accommodate those current and future applications of harm resulting from fear? Second, the chapter introduces the reader to a first vital aspect of extracontractual liability law, namely the criterion of fault. Even though fault is by no means the most relevant criterion for harm resulting from fear, which pertains mostly to aspects of harm and causality, it is important to emphasize that liability necessitates a liability-inducing fact. Additionally, this short analysis introduces the reader to a few basic aspects of fault that can be of some importance in cases of harm resulting from fear. A fault can consist of a violation of a specific norm or a general norm of due care. In most cases in environmental liability law, the plaintiffs need to fall back on the second, more open norm. Furthermore, the nature of the fault is, in most cases, of no consequence to how the judge deals with harm resulting from fear. Lastly, and most importantly, the principle of relativity could potentially impede harm resulting from fear claims. Even though I have not encountered any explicit examples so far, the analysis shows that its potential role should not be underestimated. Chapter 2. Fear and solastalgia In the second chapter, I introduce the reader to solastalgia. That term describes the psychological experience of negatively perceived changes to a familiar environment. Solastalgia describes a personal form of harm suffered due to concrete negative changes to the environment. This renders it an appropriate notion in the context of extracontractual liability law, that mainly applies to questions of personal interests. Additionally, this preliminary assessment of the solastalgia literature shows that the notion can be highly relevant in a legal context. It emphasizes a form of harm that has not yet been denoted as such in legal practice or legal scholarship. Adopting the term in a legal context could support a broader recognition of the non-economic losses associated with environmental change. Additionally, the impact factors identified in the empirical literature could help point the attention of the judge in the right direction when assessing or measuring solastalgia and its severity. Chapter 3. Fear and harm In the third chapter, I first present a deep dive into the concept of harm. I have rejected its dual understanding, in which patrimonial harm consists of the loss of an object (objectivism) and extrapatrimonial harm consists of a deterioration of the subject (subjectivism). Instead, I proposed a unified phenomenological understanding, where harm always consists of the loss of a certain value, i.e. the loss of a certain connection between subject and object. In some cases, that connection can be described as possibilities, opportunities, or need satisfaction capacity, but those terms sell the notion of harm short. Extracontractual liability law does not only intervene for loss of instrumental value but also awards indemnification for the loss of existential value, where the subject has a meaningful bond with a certain object. Applied to harm resulting from fear, harm does not consist of an objective exposure to a risk (objectivist approach) or of pure fear (subjectivist approach). It consists of the loss of value that springs from fear. Consequently, I showed that the phenomenological approach to harm resonates well with the relevant case law. I first studied the broader case law on environmental harm, which can be subdivided into two concepts of harm. First, harm to the environment denotes the somewhat controversial view that nature can experience harm. In this study, I focus on the second, namely human harm that came into being via the environment. Within this anthropocentric type of harm, I distinguish harm to general values from harm to personal values, i.e. personal harm. Both Belgian and Dutch law require the plaintiff to establish that they have been affected personally, i.e. in a way that is more specific than t