Legal Remedies for Transboundary Pollution
New Horizons in Environmental and Energy Law series
Edited by Michael Faure and Song Ying
Chapter 2: Cluster-Litigation in Cases of Transboundary Environmental Harm
André Nollkaemper 1 INTRODUCTION In this chapter I will discuss the phenomenon of cluster-litigation in cases of transboundary environmental harm. With the term ‘cluster-litigation’, I refer to a parallel or serial litigation of overlapping or closely related claims before multiple courts.1 The phenomenon of cluster-litigation in cases of transboundary environmental harm is a consequence of the fact that, in many such cases, private claimants who are injured by environmental harm originating from across the border may use multiple options to present a claim for reparation.2 They may bring a claim against private parties that caused such harm, for instance an industrial facility emitting waste water. They may also bring claims against foreign states under whose jurisdiction such harm originated and that have failed to take appropriate measures to prevent the harm. In other cases, private injured parties may rely on the state of their nationality to bring a claim against the wrongdoing state and to seek reparation on behalf of their nationals. They may also consider claims against international organizations that support (for instance by providing loans) activities resulting in transboundary environmental harm. A good illustration of cluster-litigation in response to transboundary environmental harm is the range of cases brought in connection with the planned construction of pulp mills in Uruguay that may lead to pollution 1 Romano (2007b, p. 796) uses the term in reference to procedures at international level. This article uses the concept in a broader meaning, also encompassing domestic claims. 2 The term reparation is understood...
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