Polluters Pay and the Double Disembedding: Overcoming the Unholy Relation Between Private Law and Environmental Law ‘Beyond the State’

While private law and environmental law are often seen as opposing bodies of law and principle, we want to argue that it was the relationship between these two bodies of law ‘beyond the state’ that has proven particularly ‘toxic’, fostering rather than containing relevant environmental harms. We analyse this relationship through a private law vantage point on the polluter pays principle (PPP). We show how the private-law link between wrongdoer and harm has been loosened at the same time as the public-law link between the political community and the distribution of harm and benefits has been diluted due to economic globalisation. The simultaneous success and normative hollowing of PPP in transnational discourses, we argue, has accelerated the disembedding of environmental harms from both public and private ordering, leaving both private law and environmental law disempowered. Re-embedding, at this stage, requires placing further environmental law principles at the core of the regulation of economic activities.