Keywords: Valuation of pure ecological harm, ecosystem services, damage assignment in court
 

"Improving the assessment of pure ecological harm"

This research examines three large court cases spanning the last 30 years, that figure the valuation of pure ecological harm, meaning the assignment of damages for parts of nature that were damaged or destroyed but that are no one's property. For example, an oil spill at sea affects not only parties with economic interests (such as owners of restaurants and beachfront property) but also destroys the local flora and fauna. This research looks at how to calculate the value of the flora and fauna in order for these damages to be recovered in court. Meaning, what is a tree worth? Is it only worth the price of timber or do other values come into play? The case law shows that pure ecological harm still poses a big challenge for courts. Furthermore, the possibility of working with a broader harm concept that captures these non-economic types of damages is examined. The analysis is based on Immanuel Kant’s legal philosophy and finds that, if we were to follow Kant, this type of non-economic harm should absolutely be eligible for damage assignment. This should make courts feel more comfortable in assigning damages for pure ecological harm. Lastly, the policy concepts of ecosystem services and payments for ecosystem services are examined. These concepts work with the idea that parts of nature can be assigned a dollar value based on the service they provide to humans. The research suggests that the concept of ecosystem services and the calculation of their value can be transposed to the courtroom in order for parties to formulate a concrete monetary claim for ecosystem services lost. This is in line with an approach chosen in a 2018 International Court of Justice case (which I examine in Chapter 2) called Costa Rica v. Nicaragua.

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