On The Wrongfulness Of Environmental Tort Liability

There have been a lot of debates about whether illegality is one of the elements of environmental tort liability. People who advocate negative principle claim that illegality is not the element of environmental liability. They believe that environmental tort liability will be established as long as polluting behavior, damage results and causality exist. On the contrary, people who advocate positive principle claim elements of environmental tort liability includes illegality, polluting behavior, damage results and causality.Actually, both negative principle and positive principle can't interpret the importance and position of the element of illegality. As the society develops constantly, people's behaviors change a lot at the same time. Illegality can help the law to adjust people's behaviors and decide the range of freedom. Meanwhile, it provides the judge with the foundation to settle the lawsuit when there is conflict. Therefore, the element of illegality should not be abandoned. Whether from the perspective of the illegality's function or the judgment of tort liability, illegality has the necessity to exist independently. Illegality is an openness element of tort liability which is irreplaceable.