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The increasingly complex nature of transboundary environmental problems, and the risks associated with such problems, present policy makers worldwide with the challenge of designing an effective environmental governance system with a global reach.
Environmental governance today consists of a mix of international and domestic law and regulations and private standards, with traditional forms of direct regulation operating in parallel with market-based and suasive instruments. The synergies between states and private actors on the international and domestic plane, and their resulting impact on global environmental governance, have resulted in a great deal of academic literature, but less attention has been paid to the interaction of different regulatory and private instruments at international and domestic levels. This book addresses the crucial question of whether “smart” combinations of instruments at different levels of governance can be found that can more effectively fight against transboundary environmental harm.
This book analyzes the concept of smart mixes by discussing the various types and mixes of policy instruments and by addressing how and why particular mixes emerge. In addition, the book identifies what makes a particular mix of instruments “smart” and uses specific case studies relating to the sectors of climate change, forestry, fisheries and oil pollution.
This work offers a multidisciplinary approach to legal and policy instruments used to prevent and remedy global environmental challenges. It provides a theoretical overview of a variety of instruments, making distinctions between levels of governance (treaties, domestic law), types of instruments (market-based instruments, regulation, and liability rules), and between government regulation and private or self-regulation. The book's central focus is an examination of the use of mixes between different types of regulatory and policy instruments and different levels of governance, notably in climate change, marine oil pollution, forestry, and fisheries. The authors examine how, in practice, mixes of instruments have often been developed. This book should be read by anyone interested in understanding how interactions between different instruments affect the protection of environmental resources.
These concluding remarks will provide a summary of recommendations that have been made concerning the formulation of an optimal liability and compensation scheme for offshore-related risks at the end of the preceding chapters. Hence, in order to avoid repetition, we will now summarize the earlier recommendations and refer in footnotes to the specific places where the motivation for those recommendations has been provided. The advantage is that all recommendations are brought together, while the reader can consult the text referred to in the footnotes to obtain the detailed motivation for the specific recommendations. The recommendations we will formulate to an important extent follow the order of the chapters in this book.
• Data on incidents related to damage resulting from offshore oil and gas activities are either difficult to obtain or not publically disclosed. It is recommendable that an institution at the European Union level should centrally collect those data, also in order to increase the insurability of offshore-related damage.
• It is recommendable to urge Member States to invite the offshore oil and gas producers within their jurisdictions to collaborate in the provision of those data to the central European institution.
• It is recommendable that the European Union take the initiative (eventually via a specialized UN agency or other institutions) to come to an international agreement especially focusing on offshore-related incidents with a trans-boundary character.
• In order to promote (international) risk pooling by industry, mandatory safety standards should be implemented guaranteeing a minimum level of offshore safety in the European Union. Safety regulation should play a more important role than liability rules in the prevention of offshore-related risks.
• Given the higher technical knowledge of industry on optimal safety standards, the European Union could promote (inter alia, via guidance notes) industry agreements (eventually with national regulators) on targets and safety standards but striving for highly harmonized EU-wide safety standards.
The background for this research on civil liability and financial security for offshore oil and gas activities is the explosion of the mobile deepwater offshore rig Deepwater Horizon on 20 April 2010, in the Gulf of Mexico that spilled 3.19 million barrels of oil in the sea as a result. Luckily, at the place where the Deepwater Horizon incident occurred, US law applies, in this particular case the US Oil Pollution Act of 1990 (OPA 90). OPA 90 does have a liability regime for offshore facilities. However, at the time, the international community realized that the international regime for oil spills focused largely on vessel-source pollution. Famous incidents with e.g. the Torrey Canyon (1976), Amoco Cadiz (1978), Exxon Valdez (1989) and Erika (1999) led to the development of an impressive international liability regime. Indeed, at the international level, a compensation regime for vessel-source oil pollution was already established in 1969–1971 by the adoption of two international conventions, the International Convention on Civil Liability for Oil Pollution Damage of 1969 (also called the CLC of 1969) and the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage of 1971 (the Fund Convention of 1971). These conventions went through many evolutions (in particular, the 1992 Protocols and the 2000 Resolutions) as a result of which, most important, the amounts were increased after every incident that had again challenged the financial limits on the liability of the tanker owner. In principle, the European Union relied on its Member States to ratify various international maritime conventions, but given its dissatisfaction with the measures taken at the international level through the International Maritime Organization (IMO), the European Commission also started to take its own initiatives for legislation at the European level. The European Commission subsequently adopted the so-called Erika I and Erika II packages in which it, inter alia, proposed to set up a European fund (referred to as the Cope Fund) with an updated ceiling of €1 billion (instead of the €200 million that was then applicable under international conventions).