Pure ecological harm – how much should it cost to burn a forest?

10 September 2025

How much damages should companies pay for a fish, a seal, or an entire coral reef that perishes at the hands of industry? And why does our legal system have to put a price on the ecosystem that supports our very livelihood? How an apocalyptic beach holiday inspired Cenay Akin to go from the rainforest to the arctic in a quest to improve the assessment of pure ecological harm.

It is difficult to financially indemnify an Orang-Utan for the loss of an ecosystemrelevant bug, especially when they insist on representing themselves in court. That is the problem Cenay Akin, UM’s Legal Affairs policy director, has spent several years’ worth of evenings and weekends researching. “I’ve lived like a monk; I pretty much went to my limits researching and writing next to my full-time position.”

Who owns ecosystems?

The Orang-Utan’s problem is neither whimsical nor inconsequential. In a legal system based on restitution, there needs to be a claimant and a claim for damages. “A judge will ask you what financial damages you have incurred and how much reparation you seek. In the case of damage to an ecosystem, this poses a problem we don’t yet have the framework or expertise to address.”

The technical term is ‘pure ecological harm’, which Akin defines as “harm to environmental assets that are not subject to property rights (including but not limited to air, atmosphere, water, soil, land, landscapes, natural sites, biodiversity and the interaction between these elements), which has no impact on a particular human interest but on a legitimate collective interest”.

Our legal system is based around property rights so the problem of ownership is crucial
here. Nature often falls through the cracks because there’s no clearly defined owner of,
for example, a not overly photogenic but ecosystem-relevant bug.

What’s the financial worth of ecological disasters?

The problem is that we view nature as a buffet of separate resources each worth their respective market value. “We don’t really understand how these incredibly complex ecosystems work yet, let alone how to put a financial valuation on it. The only thing we know is that we need nature more than it needs us and there will always be dreadful consequences for humans down the line.” Often those hit hardest are the less powerful or, indeed, us in the (not too distant, but distant enough to comfortably compartmentalise) future. How could we put a monetary value on those damages? And who would sue for them?

Akin suggests that, for starters, we should view the value of nature in a more holistic way. A tree is not just worth the price of timber; it has value for its ability to absorb CO2, provide oxygen, and protect from storms. It also has an intrinsic value.

Cenay Akin during her PhD defense.

One of the case studies in her thesis, literally washed up on Akin’s doorstep. Her parents owned a small beach-side apartment in Brittany. “We would visit several times a year. It was a really important part of my life.” In 1999, the oil tanker MV Erika foundered off the coast. “We were there just before Christmas. Everything was covered in pitch-black toxic sludge. You couldn’t see sand, only dead animals. It was an apocalyptic scene and must have been traumatising for the inhabitants.”

Fishermen sue; fish won’t

The region is very touristic, so many restaurant and hotel owners as well as fishermen lost business. “These concrete monetary damages were easy enough to calculate. The ecosystem, however, so all the animals, plants and microorganism communities, who live in the sea and on the beach, isn’t owned by anyone. The French government, local authorities, and environmental protection agencies stepped up and made claims.”

Liability is equally problematic here. “There’s the oil company, which might have a complex ownership structure, but there’s also the shipping company and whichever party vetted the ship, and so on. Also, you dilute legal liability whenever you create subsidiaries, a company owned and controlled by the parent company. This also diffuses reputational damages, so it’s like a smokescreen.”

“We don’t really understand how these incredibly complex ecosystems work yet, let alone how to put a financial valuation on it. The only thing we know is that we need nature more than it needs us and there will always be dreadful consequences for humans down the line.”

Cenay Akin

Why the Exxon Valdez is so important

Possibly the most famous case of ecological damage is the Exxon Valdez oil spill, a case that took over 30 years to be litigated. “It breaks down into myriad cases, the most important of which were class-action law suits. So, for example, many indigenous people were harmed in their interests, because it happened in a pristine environment, where people still live off the land and the sea. Effectively, they are hunter-gatherers who trade with each other and don’t necessarily have jobs in the conventional sense.”

While commercial fishermen, who could rely on their records and going market rates, had their claims adjudicated relatively quickly, the indigenous peoples faced an uphill battle. “If you eat most of your catch and trade the surplus for other goods with your neighbour, the loss becomes much harder to quantify.” Somewhat uneasily, they had to try to put a monetary value on their way of life and cultural heritage.

Why we have to put a price on everything

“I realise how problematic that sounds but it’s a grim necessity – again, because our legal system is based on financial restitution. Your average judge is used to adjudicating monetary claims based on material harm. If you don’t put a monetary value on the damage, you’re essentially saying that it’s worth nothing.” In the case of the Native Alaskans, this meant having to come up with a monetary value for the seals they hunt and eat, but which no one else in Alaska eats, and which, thus, don’t have a clear market value.

In addition to damage restitution, laws should also deter the responsible party from causing repeat damage. “Exxon clearly didn’t feel the pain. To put their investors at ease, the Exxon CEO declared right after an initially proposed settlement of 1 billion in damages, that this would not be a problem for them. It shows that they don’t have an incentive to invest more in safety. Companies like that do budget for environmental claims in their annual projection, so it’s clearly par for the course.”

Cenay Akin writes her name on the wall after her PhD defense.

Cenay Akin writing her name on the wall after her PhD defence

The values assigned to ecological harm are not arbitrary, but the result of sophisticated economic analysis. “Both parties bring an economic expert to bat for them in the courtroom.” In the Exxon Valdez case, this resulted in two experts debating over whether Alaska salmon is the equivalent of filet mignon, or spam in Japan, to determine the restitution value. “Of course, you can’t expect a judge to know how Japanese people feel about all types of fish…” Judges using court-appointed independent experts, is also one of Akin’s recommendations.

Beyond a sense of powerlessness

Her PhD goes well beyond legal case studies; Akin looks at the economics in detail. “I talked to some expert witnesses from the Exxon Valdez case who went through decadeold boxes in their garage for me.” She also underpins her argument philosophically. “Christine Korsgaard, an expert on Kant’s Doctrine of Right, was incredibly helpful. Kant best describes our legal system as we adhere to it. Based on his work, and Korsgaard’s interpretations of it, I make the case that ecosystems have moral status and therefore legal rights. They strive for their own good – like us but not in an explicitly rational way.”

While none of the cases Akin looked at were completely successful, it’s not all doom and gloom. “There are very good environmental courts in India, Australia and New Zealand. And there’s the BIOVAL project, a forum for environmental judges from all over the EU who are creating a standard for valuing damage to nature. Also, the International Court of Justice has recently ruled that countries are legally obliged to protect and prevent harm to the environment.”

Motivated by both a love of nature and a sense of powerlessness at how we treat it, she
hopes to have made a meaningful contribution. “I didn’t just want to sit on the sidelines. I wanted to contribute to a solution with facts and normative philosophy. I worked into the thesis all the ways we could do better as lawyers and judges. I hope this can be a foundation for tweaking our legal system and changing how we think about nature.”

Text: Florian Raith

“I hope my thesis can be a foundation for tweaking our legal system and changing how we think about nature.”