Self-insuring environmental liabilities: a residual risk-bearer's perspective

Mackie, Colin and Fogleman, Valerie ORCID: https://orcid.org/0000-0001-7716-9494 2016. Self-insuring environmental liabilities: a residual risk-bearer's perspective. Journal of Corporate Law Studies 16 (2) , pp. 293-332. 10.1080/14735970.2016.1181399

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Abstract

Self-insurance is often permitted as a means of satisfying regulatory requirements imposed on operators to evidence capability to bear their environmental liabilities. Its hallmark is that operators or their parent companies prove their financial strength rather than dedicate specific assets/funds to cover these costs. This article examines whether self-insurance can ensure that adequate funds are available when required. It is argued that if a self-insuring operator and/or its parent enter into liquidation then the protection afforded to their creditors under insolvency law may result in an environmental regulator recovering little or, indeed, nothing in respect of the costs associated with any requisite preventive, remedial or restorative works. This protection includes a liquidator’s ability to disclaim ‘onerous property’ and challenge certain payments made to the regulator as a voidable ‘preference’. Whilst commentators have highlighted a general insolvency risk with the measure, neither its extent nor precise source has been appreciated fully.

Item Type:	Article
Date Type:	Publication
Status:	Published
Schools:	Cardiff Law & Politics Law
Subjects:	K Law > K Law (General)
Publisher:	Taylor & Francis (Routledge)
ISSN:	1473-5970
Date of First Compliant Deposit:	30 June 2016
Date of Acceptance:	5 April 2016
Last Modified:	07 Nov 2023 00:03
URI:	https://orca.cardiff.ac.uk/id/eprint/92248

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