Environmental law

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Environmental law is a body of law—a system of complex and interlocking statutes, common law, treaties, conventions, regulations, and policies—that seeks to moderate or eliminate the actual or projected harm to the natural environment resulting from human activities. Environmental law as a distinct system arose in the 1960s in the major industrial economies as it was becoming clear that the cumulative negative environmental effects of human activities were becoming unsustainable in the long term. This new field of law has often been hampered by a lack both of institutions and of a common public will supporting enforcement of the laws.

Environmental law rests on the recognition of a new relation of humans with the environment, a relation in which humans explicitly value the biosphere, no longer assuming that the environment's natural capital can be either freely consumed or freely used for the dumping of wastes. The emergence of environmental law in the twentieth century marks a fundamental shift in human consciousness toward the recognition ultimately that humanity is one family bound together on one planet and jointly responsible to use the environment without destroying it. With many people still committed to their right to freely exploit the environment to their own needs without regard for larger, cumulative effects, environmental law and the institutions supporting its enforcement are still under development.

Environmental laws may aim to regulate policy locally, statewide (or in the province), nationally, or internationally. International environmental law, is a subset of environmental law and refers to the body of international law that concerns the protection of the global environment.

Environmental law is one of several methods of protecting the environment. Other avenues include environmental education, the use of economic incentives (ecotourism, debt exchange for conservation), and a paradigm shift in the way businesses value and optimize the use of the full spectrum of environmental resources, including air, water, and land. Utilizing humanity's religious traditions and spiritual dimension offers another avenue for advancing environmental protection, as people can be encouraged to be stewards of creation even when there is no law or no one is watching.

As with each method of protecting the environment, the use of environmental law has its shortcomings. For one, laws and regulations can lack effectiveness due to the difficulty of law enforcement. For example, the Pantanal—an immense wetland located in South America—is protected by many environmental regulations; however, there often is poor enforcement of those regulations given the region's remoteness and vast size. In addition, environmental laws and regulations are often enacted subsequent to undesirable consequences that have already occurred. Many environmental regulations have been enacted worldwide to protect wetlands; however, this comes after about 50 percent of the world's wetlands have already been destroyed.

Environmental law has been criticized for restricting the rights of private property and even contravening national sovereignty; implicit in such laws is the view that protecting the environment is a public responsibility to which lesser private and national interests must bend. The interdependence of all creatures (including humans) in the web of life requires an ethic of "shared ownership," linking private rights with public responsibility to the environment; and by the same token, linking the sovereignty of nations with the greater responsibility to protect the planet Earth.

Contents

Overview

Environmental law involves regulating human behavior toward the environment by passing various laws and regulations or via international agreements. For example, hunting with nets is prohibited in some environments, such as the Pantanal wetland, because it could devastate the fish stocks and also result in the indiscriminate taking of the wrong species. Cutting forests down to the riverbank is often proscribed because it would result in erosion. Internationally, there are laws regulating whaling and prohibiting trade in endangered species.

When attempting to understand the boundaries of environmental law one finds no clear limit. Environmental law tends to be interdisciplinary and includes fields such as economics, political science, ecology, human rights, and so forth. Among the issues that it deals with are sustainable development, biodiversity, pollution, and endangered species.

International environmental law changed greatly with the Stockholm Declaration of the United Nations Conference on the Environment in 1972. (See Report of the United Nations Conference on the Human Environment.) This conference led to new thinking on how to reduce damages and better preserve the environment through law.

International environmental lawyers often receive specialized training in the form of an LL.M. degree after having a first law degree—often in another country from where they got their first law degree. Notable programs include the LL.M. in Environmental Law Program at the University of Oregon and the Stetson University College of Law Environmental Moot Court.

Major topics

Some of the major topics cited by the American Society for Environmental Law that have been addressed by international conventions in recent decades include:

• Sustainable development (The Rio Declaration on Environment and Development)

• Biodiversity (Convention on Biological Diversity)

• Transfrontier pollution (Convention on Long-Range Transboundary Pollution)

• Marine pollution (Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter)

• Endangered species (Convention on International Trade in Endangered Species(CITES))

• Hazardous materials and activities (Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal)

• Cultural preservation (Convention Concerning the Protection of the World Cultural & Natural Heritage)

• Desertification (United Nations Convention to Combat Desertification)

• Uses of the seas (United Nations Convention on Law of the Sea (UNCLOS))

• Climate change (United Nations Framework Convention on Climate Change and the Kyoto Protocol on Global Warming)

Key principles

Environmental law is shaped by a number of key principles. Some of the major ones (most referring exclusively to international environmental law) are described below.

Three key principles of general applicability are:

  1. The Precautionary Principle. The precautionary principle is the idea that if the consequences of an action are unknown, but are judged to have some potential for major or irreversible negative consequences, then it is better to avoid that action. The principle can be applied in an active sense, through the concept of "preventative anticipation," or a willingness to take action in advance of scientific proof of the need for the proposed action on the grounds that further delay will prove ultimately most costly to society and nature, and, in the longer term, selfish and unfair to future generations. In practice, the principle is most often applied in the context of the impact of human civilization or new technology on the environment, as the environment is a complex system where the consequences of some kinds of actions are often unpredictable.
  2. Sustainable development. Sustainable development is a process of developing land, cities, businesses, communities, and so forth that "meets the needs of the present without compromising the ability of future generations to meet their own needs" (according to the Brundtland Report, a 1987 report from the United Nations). One of the factors that it must overcome is environmental degradation, but it must do so while not forgoing the needs of economic development as well as social equity and justice.
  3. Polluter pays principle. The polluter pays principle is the idea that the entity that pollutes the natural environment pays for its cleanup and consequences. It is regarded as a regional custom because of the strong support it has received in most countries of the Organisation for Economic Co-operation and Development (OECD) and the European Community (EC). International environmental law itself mentions little about the principle, but an example of it can be found in the preamble of the Convention on the Transboundary Effects of Industrial Accidents (See: Convention on the Transboundary Effects of Industrial Accidents, Helsinki, March 17, 1992)

More specific principles, rights, and duties of international environmental law include:

  1. The Principle to Not Cause Harm. This principle developed from the Corfu Channel Case where it established that nations have an obligation to not take actions or create circumstances that will harm other nations.
  2. The Principle of State Responsibility. This principle is based on the concept that states have liability for damage to other states that they may cause.
  3. The Principle of Intergenerational Equity. This principle is referred to in a number of treaties such as the Convention on Biological Diversity and further proposed in refinement by environmental scholars. It basically holds that the natural resources are the common property of all the people of a nation, including future generations, and all (including future generations) have a right to the benefits of those resources. The state is responsible to see that they are properly conserved for that purpose.
  4. Principle of Differentiated Responsibilities. This concept is found in the Climate Change Convention Article 3. The concept provides for those with more resources to take more responsibility than those with less capability.
  5. Exclusive Economic Zone. This principle provides for all States to have an exclusive economic zone that they will govern up to 200 miles in the ocean from their land border. This zone is to be managed with environmental sensitivity to other States. Provisions for this law are found in the U.N. Law of the Sea Convention. (Exclusive Economic Zone)
  6. Right to Development. This principle calls for each State to have the right to development as an inalienable right and a right of self determination as stated in the Declaration on the Right to Development.
  7. Common Heritage of Humankind. The Moon Treaty provides that exploration and the use of the moon shall be available for all humankind as a common heritage.
  8. Duty to Assess Environmental Impacts. This principle has applied to World Heritage sites and has been developed within individual countries such at the United States National Environmental Policy Act (NEPA) and the Australian Environment Protection and Biodiversity Act. The basic concept is to assess potential impacts before actions are taken that may adversely affect the environment.
  9. Principle of the Duty to Cooperate. This principle requires nations to cooperate in addressing environmental issues. This is both part of the U.N. Charter Article 1.3 and is also found in the Moon Treaty as well. (See: Purposes and Principles of the United Nations)
  10. The Principe for Equal Right To Access Justice. This principle provides anyone injured from another’s damage to the environment the right to bring an action for justice to an appropriate court. This principle is found in the Nordic Environmental Protection Convention.

There have been many important cases in the area of international environmental law, including the various nuclear testing cases, such as between New Zealand and France before the International Court of Justice.

Sustainable Development

Sustainable development is one of the key issues addressed by international environmental law.

Sustainable development refers to development that meets present needs without degrading future generations' ability to meet their own needs.

Several United Nations texts, including the 2005 World Summit Outcome Document, refer to the "interdependent and mutually reinforcing pillars" of sustainable development as economic development, social development, and environmental protection.

For some, the issue is considered to be closely tied to economic growth and the need to find ways to expand the economy in the long term without using up natural capital for current growth at the cost of long-term growth. For others, the concept of growth itself is problematic, as the resources of the Earth are finite. The 2005 UK Sustainable Development Strategy has the objective of enabling all people throughout the world to satisfy their basic needs and enjoy a better quality of life, without compromising the quality of life of future generations.

Many people reject the term sustainable development as an overall term in favor of sustainability, and reserve sustainable development only for specific development activities such as energy development.

One of the key difficulties with the concept of sustainable development is that as population increases it becomes by definition more difficult to sustain the same quality of life with the same amount of resources that may have been sustaining with a smaller population.

Environmental degradation

Environmental degradation is also a key concept for environmental law. One of the factors that sustainable development seeks to overcome is environmental degradation while not forgoing the needs of economic development as well as social equity and justice.

Environmental degradation refers to the diminishment of a local ecosystem or the biosphere as a whole due to human activity. Environmental degradation occurs when nature's resources (such as trees, habitat, earth, water, air) are being consumed faster than nature can replenish them. An unsustainable situation occurs when natural capital (the sum total of nature's resources) is used up faster than it can be replenished. Sustainability requires that human activity, at a minimum, only uses nature's resources to the point where they can be replenished naturally:

Consumption of renewable resources State of environment Sustainability
More than nature's ability to replenish Environmental degradation Not sustainable
Equal to nature's ability to replenish Environmental equilibrium Sustainable growth
Less than nature's ability to replenish Environmental renewal Sustainable growth

The long-term final result of environmental degradation will be local environments that are no longer able to sustain human populations.

The United Nations Environment Programme (UNEP) is the United Nations organization most focused on the issues of sustainable development and environmental degradation. UNEP’s mission is "To provide leadership and encourage partnership in caring for the environment by inspiring, informing, and enabling nations and peoples to improve their quality of life without compromising that of future generations.” UNEP was responsible for both the Earth Summit in Brazil in 1992 and the World Summit on Sustainable Development in South Africa in 2002.

The UNEP position on sustainable development is: The intensified and unsustainable demand for land, water marine and coastal resources resulting from the expansion of agriculture and uncontrolled urbanization lead to increased degradation of natural ecosystems and erode the life supporting systems that uphold human civilization. Caring for natural resources and promoting their sustainable use is an essential response of the world community to ensure its own survival and well-being. (Source: Sustainable Management and Use of Natural Resources)

UNEP is one of the few United Nations programs with its headquarters in Africa, symbolic of its understanding of the relationship of poverty to the issues of sustainable development and environmental degradation.

Precautionary principle

The precautionary principle, a phrase first used in English around 1988, is the idea that if the consequences of an action are unknown—but are judged to have some potential for major or irreversible negative consequences—then it is better to avoid that action.

The substance of the precautionary principle is not new, as the essence of the principle is captured in cautionary aphorisms such as, "An ounce of prevention is worth a pound of cure," "Better safe than sorry," and "Look before you leap." The precautionary principle may be interpreted as a generalization of the ancient medical principle associated with Hippocrates, of "First, do no harm."

The application of the precautionary principle is hampered by the wide range of interpretations placed on it. One study identified 14 different formulations of the principle in treaties and in non-treaty declarations. [1] The range of interpretation may be characterized as running from the need to show that an action is "probably" safe, to showing that it is "definitely" safe. An analogy can be drawn with standards of proof used in law, which range from the "balance of probabilities" standard often used in civil law to the "beyond a reasonable doubt" standard of proof often used in criminal law.

This variation in the burden of proof on whether to proceed with an action, however, interacts with varying perspectives on the validity and manner of trading off the action's costs and benefits, particularly when they fall on different groups. This introduces an ethical dimension—for example on the impact on future generations—which falls outside the domain of cost-benefit analysis and risk assessment and in the domain of politics.

The World Charter for Nature, which was adopted by the UN General Assembly in 1982, was the first international endorsement of the precautionary principle. The principle was implemented in an international treaty as early as the 1987 Montreal Protocol, and among other international treaties and declarations [2] is reflected in the 1992 Rio Declaration on Environment and Development (signed at the United Nations Conference on Environment and Development).

On February 2, 2000, the European Commission adopted a communication on the precautionary principle [3] in which it defined this concept and explained how it intended to apply it. It is also defined in Article III-233 of the draft Treaty establishing a constitution for Europe:

Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source, and that the polluter should pay.
In this context, harmonization measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional steps, for non economic environmental reasons, subject to a procedure of inspection by the Union.

Saunders (2000) argues that in some instances, notably World Trade Organization policy, there is in effect an "anti-precautionary principle" under which the burden of proof is on society to quickly show that a new product is dangerous, rather than on the innovator to show that it is safe.

Environment/health

An oft-cited early modern application of the principle was physician John Snow's 1854 removal of the handle of a water pump in Broad Street, London, in order to prevent a cholera outbreak from the infected well (at the time, the science on the spread of cholera through contaminated water was not yet conclusive). However an alternative view is that Dr. Snow was absolutely sure about the infected water and an empirical experiment proved him right. Some might argue that the precautionary principle would advocate not having any water pumps at all until society could be absolutely sure that no contaminants could be transmitted in that way.

The German Duke of Württemberg-Teck had as early as 1778 banned the use of lead pipes for drinking water, two hundred years before the publication of scientifically grounded World Health Organization guidelines on the toxicity of lead. The application of the principle can be seen in the public policy of requiring pharmaceutical companies to carry out clinical trials to show that new medications are safe, as well as effective.

Criticisms

Critics of the precautionary principle argue that it is impractical, since every implementation of a technology carries some risk of negative consequences. Proponents counter that the principle is not an absolute rule; it is a conceptual tool to clarify arguments, and especially an issue of where the burden of proof lies.

Another standard criticism of the precautionary principle is that it is only applied to new technologies, not the existing technologies that the new technology might supersede. Proponents of the principle argue that this is a misapplication of the principle, and that it should be applied to existing as well as new technologies. But it is arguably an argument for the status quo in the absence of sufficient information to guarantee that change will be for the better ("better the devil you know").

The precautionary principle, as stated, does not take into account the potential positive benefits of a technology, which may be substantial. Its use is often interpreted as protectionism (such as the case of beef fed with hormones, as dealt with by the World Trade Organization), or as Neo-Luddism in the case of opposition to genetic engineering, nanotechnology, stem cell research, or even development of wilderness areas.

Author Michael Crichton, in his book State of Fear, says that the precautionary principle is "self-contradictory," in that the principle itself might have irreversible and unpredictable consequences—and as such might on its own terms be the wrong course of action.

Environmental agreements

There are numerous international environmental agreements made to protect the environment in different ways. Many of these are legally binding.

International environmental agreements include:

  • Alpine Convention, together with its nine protocols
  • ASEAN Agreement on Transboundary Haze Pollution
  • Antarctic Treaty
    • Agreed Measures for the Conservation of Antarctic Fauna and Flora
    • Convention for the Conservation of Antarctic Seals
    • Convention for the Conservation of Antarctic Marine Living Resources
    • Protocol on Environmental Protection to the Antarctic Treaty
  • Basel Convention
  • Carpathian Convention Framework Convention on the Protection and Sustainable Development of the Carpathians
  • Convention on Biological Diversity
  • Convention on Fishing and Conservation of Living Resources of the High Seas
  • Convention on Long-Range Transboundary Air Pollution
    • EMEP Protocol
    • Sulphur Protocol 1985
    • Nitrogen Oxide Protocol
    • Volatile Organic Compounds Protocol
    • Sulphur Emissions Reduction Protocol 1994
    • Heavy Metals Protocol
    • POP Air Pollution Protocol
    • Multi-effect Protocol (Gothenburg protocol)
  • Convention on the conservation of European wildlife and natural habitats
  • Convention on the Conservation of Migratory Species of Wild Animals
  • Convention on the International Trade in Endangered Species of Wild Flora and Fauna
  • Convention on the Prevention of Marine Pollution by Dumping Wastes and Other Matter
  • Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques
  • Convention on Wetlands of International Importance Especially As Waterfowl Habitat
  • MARPOL 73/78 - International Convention for the Prevention of Pollution from Ships
  • International Convention for the Regulation of Whaling
  • International Treaty on Plant Genetic Resources for Food and Agriculture
  • International Tropical Timber Agreement, 1983 (expired)
  • International Tropical Timber Agreement, 1994
  • Kyoto Protocol—greenhouse gas emission reductions
  • Montreal Protocol on Substances That Deplete the Ozone Layer
  • North American Agreement on Environmental Cooperation
  • Stockholm Convention on persistent organic pollutants
  • Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water
  • United Nations Convention on the Law of the Sea
  • United Nations Convention to Combat Desertification
  • United Nations Framework Convention on Climate Change

References

  • Arrow, K. J. and A. C. Fischer. 1974. Environmental preservation, uncertainty and irreversibility. Quarterly Journal of Economics 88 (2): 312-319.
  • Epstein, L. S. 1980. Decision-making and the temporal resolution of uncertainty. International Economic Review 21 (2): 269-283.
  • Gollier, C., B. Jullien, and N. Treich. 2000. Scientific Progress and Irreversibility: An Economic Interpretation of the ‘Precautionary Principle’ Journal of Public Economics 75 (2): 229-253.
  • Harremoës, P., D. Gee, M. MacGarvin, A. Stirling, J. Keys, B. Wynne, and S. Guedes Vaz. The Precautionary Principle in the 20th Century: Late Lessons from Early Warnings. Earthscan, 2002. Review, Nature 419, October 2002, 433.
  • O’Riordan, T. and J. Cameron. 1995. Interpreting the Precautionary Principle, Earthscan Publications, London.
  • Saunders, P. T. 2000. "Use and Abuse of the Precautionary Principle". Institute of Science in Society Submission to US Advisory Committee on International Economic Policy (ACIEP) Biotech. Working Group, 13 July.


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