Entitling the Pollutee: Liability versus Standard under Private Information

This paper considers and compares two different legal means -- full liability and standard – to reduce and to regulate pollution at a local level accounting for private information about benefits and costs. The familiar polluter pays principle makes the polluter liable for any damage. Since the courts lack information about the true damage the pollutee can and presumably will overstate this damage. Nevertheless, voluntary arrangements bypassing the courts exist (e.g., for Coasean reasons). However, such out-of court arrangements fail to improve in many cases the inefficient allocation of pollution due to agency costs. Given these unsatisfactory consequences of the polluter pays principle even after allowing for contracts around the law, we propose a modification of standards: the pollutee is entitled that a certain standard is satisfied, yet can trade this right for financial compensations. Contracts induced by this legal rule are countervailing (the optimal mechanism switches between subsidies and payments and first best efficiency holds at both ends) and this characteristic allows such a “privatized” standard to track the first best quite well and (often) better than the polluter pays principle. This relative ranking under private information is the opposite of the one that holds under uncertainty (here liability dominates the standard). Copyright Springer 2005