Home > Uncategorized > Accountability versus Liability (part 1)

Accountability versus Liability (part 1)

Internet access is so empowering. I have been thinking recently about the difference between the concepts of accountability and liability. I am thinking about it with reference to the Chesapeake Bay TMDL and its promise of “increased accountability” in efforts to restore the Chesapeake Bay to ecological health. Uncertain as to the legal ramifications of these two words, I searched the internet for the phrase in the title. Below, is the lead paragraph of the first and best reference that came up under my search:

[Helen?] Nissenbaum writes that a key difference between accountability and liability is the ground on which each is appraised: liability is appraised on the victim’s plight while accountability is on the relationship of an agent to an outcome. Another difference is that accountability is closely linked to the notion of moral blameworthiness which has as one of its necessary conditions that a harm done is brought about by a faulty action by the agent. On the other hand, “to be strictly liable for harm is to be liable to compensate for it even though one did not bring it about through faulty action” (Nissenbaum, p. 15).

This is interesting. I had wondered whether one of these words had a more general and binding legal implication than the other. Nissenbaum’s analyst seems to be saying that “liability” binds more broadly than “accountability”. Perhaps that is the general case among the legal theorists. So, maybe the designers of the Chesapeake Bay TMDL use the term “accountability” and not “liability” in all of their public statements for good reason. Perhaps states are accountable but not liable for their contributions of nutrient and sediment pollution to the Chesapeake.

When you do a search on accountability on the Chesapeake Bay Program’s website, you get a lot of references for monitoring and tracking Bay restoration activities and outcomes. Most of it focuses on the verification of actions taken to achieve the outcome “restored Chesapeake Bay”. In keeping with the distinction made in the cribbed internet paragraph, accountability seems to be all about “the relationship of an agent [the states, counties and municipalities] to an outcome.”

When one does a search on liability on the Chesapeake Bay Program’s website, most of the results are from contracts among the partners. Contracts, of course, generally have liability clauses. But also in the mix is a 1995 piece by Kurt Stephenson, Waldon Kerns and Len Shabman discussing market-based mechanisms for achieving Chesapeake Bay restoration goals. There is actually a very nice paragraph in that paper that goes to the heart of my original question about liability versus accountability in Bay restoration activities. They say this about liability with respect to conditions that have to be met in order for market-based environmental policies to work:

A system of liability rules assigns financial responsibility to parties whose actions could impose harm or damage on third parties. Although compensatory damages are not paid until harm has occurred, the potential for environmental harms creates incentives for those held potentially liable to undertake preventative measures rather than paying for the damages they cause. Thus, liability imposes a cost on those engaging in environmentally risky activities by forcing these parties to account for the risk imposed on others.

The other place where the word liability crops up in Chesapeake Bay Program documents is in more contemporary work relating to pollution trading and offsets. That literature holds that, when we are talking about market-based restoration, our operating assumption is that someone has liability for the “bad” that is causing environmental harm and that liable party can be made to pay for it. Our existing framework for managing restoration of the Bay by way of public sector agencies and academic institutions only implies the less binding condition, accountability. If it rains too much and chlorophyll-a, or DO goals are not met, public sector agents are not liable. But an agent who operates in some future market will be. I suppose this is progress. What I wonder is what were the public sector agents before they were accountable?

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