Environmental Regulation and Civil Liability Under Causal Uncertainty: An Empirical Study of the French Legal System

The key question in this article is to determine whether regulation and regulator information can help to solve causal uncertainty problems in liability. A widely held view among Law and Economics scholars is that civil liability alone is not well-suited to cope with environmental accidents, especially where causation is uncertain or costly to establish. Instead of a simple civil liability rule, it is therefore advocated that a regulatory system be implemented combined with a public insurance scheme, or, alternatively, to institute a mix of regulation and civil liability. Such a mix of regulation and civil liability prevails in French law, and this article presents an original analysis of French court decisions concerning cases of environmental accidents for which causation was uncertain and in which regulators were not able to control for levels of organizational and human care. The dataset covers more than 50 years of trial outcomes from the highest civil and criminal court in France - Cour de Cassation. Our results seem to provide evidence that regulation provides a new way to address causal uncertainty at the liability stage. This may be due to a transfer of information from regulators to judges and to the adoption by judges of a probabilistic approach to causation.