The Legacy of Disaster
Harmless otters stuck in oil, deformed in their appearance, the tar leaving only their eyes white and unblinking. The eyes of these wild animals are more puzzled than fearful; they look quizzically at the observer. This is one of the most famous images of the disaster caused by shipwreck of the oil tanker Exxon Valdez, which occurred in Prince William Sound (Alaska) on 24 March 1989. This was one of the numerous oil spills around the world, which poured tons of crude oil in the ocean (think about the BP oil spill in the Gulf of Mexico in 2010, after the Deepwater Horizon offshore oil rig caught fire).
Catastrophic events like these are both the explosive concentrate and the amplified image of larger environmental issues, such as global warming. They often cause irreversible damage not only to the natural environment, but to other values and interests as well (in the Exxon Valdez case fishermen communities were most affected; in other accidents many human lives were lost); they hit a plurality of victims, spread across space and time; trigger lengthy legal fights (lawsuits took decades to settle), and also heated public debate involving politicians, scientists, environmental NGOs, legal theorists, economists, and philosophers; they generate complex political responses and legal changes.
A quarter of a century from that day is a good time to take stock of the situation and draft a balance sheet. Have legal institutions followed suit in addressing environmental issues, or, like otters trapped in crude oil, have they just limited themselves to stand idle to look astonished at an unmanageable problem?
The plurality of victims hampers the identification of the applicable law and of the court of jurisdiction; the severity of the event dramatically underscores how legal theory, just like any other discipline, is incapable of dealing with these problems alone; the magnitude and irreversibility of damage, the quantity of the subjects involved and the difficulty in investigating cause and effect, all make traditional damage compensation mechanisms insufficient. Following the Exxon Valdez disaster, the United States, which does not participate in the international regime of responsibility, passed the Oil Pollution Act in 1990. This was done to better define legal redress and compensation, by also including natural resources among affected assets. On the other hand, the US imposed a mandatory double hull for all tankers (and the International Maritime Organization followed suit). Following the sinking of the oil tanker Erika off the French coast in December 1999, the EU laid out three packages of directives in order to strengthen the European monitoring of sea traffic, facilitate control by the state where the port of destination is located, and combat pollution caused by ships. A European Maritime Safety Agency has also been established.
More in general, ecological awareness has certainly grown in the last couple of decades and the law has become increasingly sophisticated about environmental protection of various stakeholders, putting command-and-control and market-based tools alongside traditional legal compensation, by also seeking, sometimes in vain, global environmental agreements.
However, the true challenge lies in protecting the environment every day, constantly and preemptively, not just when disaster strikes. This requires a radical change of attitude, in order to abandon the inherited anthropocentrism of legal theory and embrace an anthropocentrism of duty toward those who have no face and no voice, including future generations.
After all, it is this call for human responsibility that to this day we can still see in the eyes of those otters.