New Horizons in Environmental and Energy Law series
Edited by Michael Faure and Marjan Peeters
Chapter 11: Governmental Liability: An Incentive for Appropriate Adaptation?
Ben Schueler 1. INTRODUCTION In this chapter, I will explore the possibilities of using a national system of governmental liability as an incentive for appropriate adaptation to climate change. Liability systems are supposed to stimulate actors to take the right decisions, because these actors are expected to limit their responsibility for compensation. Thus, the existence of liability for unlawful decisions would seem to provide an impulse to take the right decisions. I will focus on the Dutch system of governmental liability. The analysis of the Dutch liability system may serve as a case study in order to demonstrate the problems that may arise in relation to the use of governmental liability as an instrument to stimulate measures to prevent climate change damage. There are several good reasons to focus on Dutch law. The Netherlands is a low-lying country, for a large part below sea-level. The threat of a rising sea-level is taken as a serious and concrete political and technical problem, both by the government and by other parties within Dutch society. Furthermore, the Netherlands is a delta where a number of important river basins come together: those of the Rhine, the Meuse and the Scheldt. There is danger from all sides – even from above, as excessive rainfall is one of the predicted effects of climate change in the future. Another reason to explore the Dutch situation is the well-developed system of governmental liability. This system is based on two different principles: fault and equal treatment. Liability based on fault...