Environmental Law

Citation

Bell, S., McGillivray, D., & Pedersen, O. W. (2013). Environmental Law (8th ed.). Oxford University Press.

Chapter Summary

Preface to the Eighth Edition

The preface highlights updates and additions to the eighth edition, reflecting recent legislative changes and significant case law developments. It emphasizes the increased importance of climate change and environmental justice, as well as the impact of the Climate Change Act 2008 and the Localism Act 2011 on environmental law. The preface also notes the simplification efforts in environmental legislation, such as the Environmental Permitting (England and Wales) Regulations 2010.

Part One: Introductory Themes

1. What is Environmental Law?

• Defines environmental law and its significance, addressing key themes like policy, rights, and justice. The chapter explores the development and challenges of environmental law, including historical perspectives and modern environmental policies.

1. History and Challenges

• Provides a historical overview of environmental law, examining early controls, modern environmental policies, and future prospects. The chapter reflects on lessons from the past and the evolution of second-generation environmental policies.

1. Values, Principles, Rights, Justice, and Environmental Law

• Discusses the underlying values and principles of environmental law, including environmental justice and human rights. The chapter examines how the law balances various environmental values and addresses issues of risk and environmental principles.

1. Sources of Environmental Law

• Outlines the different sources of environmental law, including international, transnational, and EU law, as well as national law. The chapter highlights the layers of law and the role of case law in environmental regulation.

1. The Administration of Environmental Law and Policy

• Explores the administration and implementation of environmental law in the UK, focusing on the roles of central and local government, regulatory agencies, NGOs, and the courts. The chapter discusses the ‘British’ style of administration and the influence of devolution.

Part Two: Integrated Themes

6. International Law and Environmental Protection

• Examines the significance of international law in environmental protection, including the role of nation-states, international organizations, and dispute settlement mechanisms. The chapter discusses sources of international law, policy development, and future directions.

6. The European Union and the Environment

• Reviews the development of EU environmental law and policy, highlighting key directives and regulations. The chapter addresses the relationship between EU and UK environmental law and the challenges of achieving uniformity and compliance.

6. The Regulation of Environmental Protection

• Analyzes the rationale for environmental regulation, exploring different regulatory approaches and tools, such as administrative regulation, economic instruments, and self-regulation. The chapter discusses the role of criminal and civil law in environmental protection.

6. Environmental Crime and Enforcement

• Defines environmental crime and examines the lack of uniformity, moral dimensions, and enforcement challenges. The chapter covers strict liability, defenses, and sanctions for environmental offenses, as well as the role of enforcement agencies.

6. Public Participation
   • Highlights the importance of public participation in environmental decision-making, covering access to information, participation in decision-making processes, and access to justice. The chapter discusses judicial review, compliance bodies, and the potential for an environmental court.
7. Private Law and Environmental Protection
   • Explores the intersection of private law and environmental protection, including tort law, human rights law, and other private law mechanisms. The chapter discusses remedies and the future role of private law in environmental protection.

Part Three: Sectoral Coverage

12. Town and Country Planning
    • Provides an overview of town and country planning as a tool for environmental policy, addressing planning legislation, development plans, and the role of planning authorities. The chapter discusses planning permission, enforcement, and the integration of environmental considerations.
13. Environmental Assessment
    • Discusses the process and significance of environmental assessment, including Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA). The chapter reviews international and EU practices, exemptions, and the impact of assessment on decision-making.
14. Environmental Permitting and IPPC
    • Examines the development and scope of the environmental permitting regime, focusing on Integrated Pollution Prevention and Control (IPPC). The chapter analyzes the application of permitting requirements, emissions controls, and market-based instruments.
15. Climate Change, Ozone Depletion, and Air Quality
    • Reviews international and EU law on air pollution and climate change, addressing liability, compensation, and domestic policies. The chapter discusses air quality regulations and the impact of climate change legislation.
16. Contaminated Land
    • Explores the regulation of contaminated land, differentiating between historical and current contamination. The chapter covers the identification, remediation, and allocation of liability for contaminated sites.
17. Water Pollution and Water Quality
    • Analyzes the sources and regulation of water pollution, including international, EU, and domestic laws. The chapter discusses water quality objectives, groundwater pollution, and enforcement policies.
18. Waste Management
    • Discusses the regulatory challenges of waste management, including the history of domestic and international waste law. The chapter covers definitions, permitting, offenses, and economic instruments related to waste management.
19. The Conservation of Nature
    • Examines legal protections for biodiversity and habitat conservation under national and EU law. The chapter discusses conservation agencies, general biodiversity duties, and the protection of individual species.

Key Concepts

1. Environmental Principles and Values

• Sustainable Development: The principle that meets the needs of the present without compromising the ability of future generations to meet their own needs. This concept underpins much of environmental law and policy, promoting long-term environmental health and economic viability.
• Precautionary Principle: Advocates for preventive action in the face of uncertainty. When there is a risk of serious or irreversible damage, the lack of full scientific certainty should not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
• Polluter Pays Principle: The idea that those who produce pollution should bear the costs of managing it to prevent damage to human health or the environment. This principle is reflected in various regulations and economic instruments such as taxes and fines.
• Environmental Justice: Ensures fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.

2. Sources of Environmental Law

• International Environmental Law: Comprises treaties, conventions, and agreements between countries. Key sources include the United Nations Framework Convention on Climate Change (UNFCCC) and the Convention on Biological Diversity (CBD).
• European Union Environmental Law: EU directives and regulations significantly shape member states’ environmental policies. The EU has extensive laws covering issues such as waste management, air and water quality, and habitat conservation.
• National Law: National statutes, regulations, and case law provide the primary framework for environmental protection within a country. In the UK, significant statutes include the Environmental Protection Act 1990 and the Climate Change Act 2008.

3. Regulatory Frameworks and Approaches

• Administrative Regulation: Government agencies establish and enforce regulations. Examples include the Environment Agency in the UK and the Environmental Protection Agency (EPA) in the USA. These bodies set standards, issue permits, and ensure compliance through inspections and enforcement actions.
• Economic Instruments: Tools such as taxes, subsidies, and tradable permits designed to encourage environmental protection by providing economic incentives or disincentives. The EU Emissions Trading System (ETS) is a prime example.
• Self-Regulation: Industries or sectors voluntarily adopt environmental standards and practices, often through codes of conduct or industry agreements. While this can lead to innovation and faster implementation, it may lack the enforcement rigor of government regulation.

4. Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA)

• EIA: A process that evaluates the environmental effects of a proposed development project. It includes public consultation and the preparation of an environmental statement outlining potential impacts and mitigation measures.
• SEA: Similar to EIA, but applied to policies, plans, and programs rather than individual projects. SEA aims to integrate environmental considerations at higher decision-making levels, promoting sustainable development.

5. Climate Change Law

• International Frameworks: The UNFCCC and the Kyoto Protocol establish international commitments to reduce greenhouse gas emissions. The Paris Agreement builds on these frameworks, setting targets for limiting global temperature increases.
• EU Climate Policy: Includes directives and regulations aimed at reducing emissions, promoting renewable energy, and enhancing energy efficiency. The EU Climate and Energy Package is a significant legislative effort to achieve these goals.
• National Legislation: Countries implement their international commitments through national laws. The UK’s Climate Change Act 2008 is a landmark law requiring legally binding carbon budgets to reduce greenhouse gas emissions.

6. Enforcement and Compliance

• Environmental Crime: Includes activities such as illegal dumping of hazardous waste, poaching, and violations of pollution control laws. Enforcement agencies use a range of tools, including fines, imprisonment, and remediation orders.
• Public Participation and Access to Justice: Ensures that individuals and communities have the opportunity to participate in environmental decision-making processes and challenge decisions that do not comply with environmental laws. The Aarhus Convention provides a framework for public participation and access to justice in environmental matters.

7. Environmental Liability and Private Law

• Tort Law: Individuals or entities can be held liable for environmental damage through common law torts such as nuisance, negligence, and trespass. This provides a mechanism for individuals to seek compensation or injunctions.
• Statutory Liability: Specific environmental statutes may impose liability for environmental harm, often with stricter standards and more significant penalties than common law. For example, the Environmental Protection Act 1990 in the UK includes provisions for contaminated land remediation.

8. Sector-Specific Regulations

• Water Quality and Pollution: Regulated through directives such as the EU Water Framework Directive, which sets out a comprehensive framework for water management and pollution control.
• Waste Management: Laws and policies aim to reduce waste generation, promote recycling, and ensure safe disposal. The EU Waste Framework Directive sets the basic concepts and definitions related to waste management.
• Nature Conservation: Includes protection of biodiversity and habitats through regulations such as the EU Habitats Directive and Birds Directive. National parks, protected areas, and specific species protections are critical components.

9. Public and Private Sector Roles

• Government Agencies: Responsible for creating, implementing, and enforcing environmental laws. Agencies like the Environment Agency in the UK oversee a wide range of environmental issues.
• Non-Governmental Organizations (NGOs): Play a crucial role in advocating for stronger environmental protections, monitoring compliance, and raising public awareness. Organizations such as Greenpeace and the World Wildlife Fund (WWF) are prominent examples.
• Private Sector: Businesses are increasingly adopting sustainable practices and corporate social responsibility (CSR) initiatives. Environmental management systems (EMS), such as ISO 14001, help companies improve their environmental performance.

Critical Analysis

1. Environmental Principles and Values

• Sustainable Development
• Strengths: Provides a holistic approach that integrates environmental, economic, and social dimensions. It encourages long-term thinking and resource efficiency.
• Challenges: Balancing economic growth with environmental protection can be difficult. Policies often prioritize short-term economic gains over long-term sustainability. The ambiguity of the concept allows for varying interpretations, sometimes diluting its effectiveness.
• Precautionary Principle
• Strengths: Promotes proactive measures to prevent environmental harm, especially when scientific uncertainty exists. It helps in avoiding irreversible damage and can stimulate innovation in safer technologies.
• Challenges: The principle’s application can lead to regulatory overreach and stifle technological advancement. Defining “sufficient” evidence to trigger precautionary measures can be contentious.
• Polluter Pays Principle
• Strengths: Ensures that those responsible for pollution bear the costs of managing it, creating an economic incentive to reduce environmental damage. It aligns with principles of fairness and accountability.
• Challenges: Determining the exact cost of environmental damage and apportioning it accurately can be complex. There is a risk of companies passing on these costs to consumers, potentially leading to higher prices for goods and services.
• Environmental Justice
• Strengths: Ensures that environmental benefits and burdens are distributed fairly, protecting vulnerable communities. It promotes inclusivity and equity in environmental decision-making processes.
• Challenges: Achieving true environmental justice requires systemic changes and significant political will. Marginalized communities often lack the resources and influence to advocate effectively for their rights.

2. Sources of Environmental Law

• International Environmental Law
• Strengths: Facilitates global cooperation on transboundary environmental issues like climate change and biodiversity loss. It sets common standards and goals for countries to achieve collectively.
• Challenges: International agreements often lack strong enforcement mechanisms, relying on voluntary compliance. Disparities between developed and developing countries can lead to conflicts over responsibilities and resources.
• European Union Environmental Law
• Strengths: Provides a comprehensive and harmonized framework that enhances environmental protection across member states. The EU’s regulatory power can drive significant environmental improvements.
• Challenges: Achieving uniform compliance among diverse member states with varying economic conditions and priorities can be difficult. The Brexit process has created uncertainties about the future alignment of UK and EU environmental laws.
• National Law
• Strengths: Allows countries to tailor environmental regulations to their specific contexts and needs. National laws can be more responsive and adaptable to local conditions.
• Challenges: Inconsistencies between national laws can complicate international and regional cooperation. Political changes and economic pressures can undermine the stability and effectiveness of national environmental policies.

3. Regulatory Frameworks and Approaches

• Administrative Regulation
• Strengths: Provides clear standards and enforcement mechanisms to ensure compliance. Regulatory agencies can act swiftly to address environmental issues.
• Challenges: Bureaucratic inefficiencies and lack of resources can hamper effective regulation. There is a risk of regulatory capture, where agencies prioritize industry interests over public and environmental health.
• Economic Instruments
• Strengths: Create financial incentives for reducing environmental impacts, promoting innovation and cost-effective solutions. Instruments like carbon pricing can internalize environmental costs into market transactions.
• Challenges: Setting appropriate levels for taxes and subsidies is complex and can be politically contentious. Market-based approaches may not address all environmental issues effectively, particularly those that require immediate action.
• Self-Regulation
• Strengths: Encourages industry leadership and innovation in environmental protection. It can lead to faster implementation of sustainable practices compared to formal regulation.
• Challenges: Voluntary measures often lack transparency and accountability. There is a risk that companies may prioritize public relations over substantive environmental improvements.

4. Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA)

• Environmental Impact Assessment (EIA)
• Strengths: Ensures that potential environmental impacts are considered before project approval. It promotes public participation and transparency in decision-making processes.
• Challenges: The quality of EIA reports can vary significantly, affecting their reliability. There is a risk of “box-ticking” where assessments are done to fulfill regulatory requirements without genuine consideration of impacts.
• Strategic Environmental Assessment (SEA)
• Strengths: Integrates environmental considerations into higher-level policy and planning processes. It encourages more comprehensive and long-term environmental thinking.
• Challenges: Implementing SEA effectively requires significant coordination and cooperation among different government agencies. The scope and scale of SEA can make it a resource-intensive process.

5. Climate Change Law

• International Frameworks
• Strengths: Agreements like the Paris Agreement provide a global platform for coordinated climate action, setting targets for emissions reductions and climate resilience.
• Challenges: Achieving consensus among diverse countries with different priorities and capacities is challenging. Enforcement mechanisms are often weak, relying on peer pressure and diplomatic negotiations.
• EU Climate Policy
• Strengths: The EU has been a leader in climate policy, setting ambitious targets and implementing comprehensive regulatory frameworks. Policies like the EU Emissions Trading System (ETS) have been influential globally.
• Challenges: Balancing the economic impacts of stringent climate policies with the need for competitiveness can be difficult. The divergence between member states in implementing and complying with EU climate policies remains a challenge.
• National Legislation
• Strengths: National laws like the UK’s Climate Change Act 2008 provide clear legal mandates for reducing emissions, ensuring accountability and long-term planning.
• Challenges: National climate policies can be vulnerable to political changes and economic pressures. Ensuring alignment and coherence with international commitments can be complex.

6. Enforcement and Compliance

• Environmental Crime
• Strengths: Strict enforcement of environmental laws deters illegal activities and promotes compliance. Significant penalties for violations can create a strong disincentive for environmental harm.
• Challenges: Detection and prosecution of environmental crimes can be resource-intensive and complex. In some cases, penalties may not be sufficient to deter wealthy corporations.
• Public Participation and Access to Justice
• Strengths: Ensures that communities have a voice in environmental decision-making and can hold authorities accountable. The Aarhus Convention is a key framework promoting these rights.
• Challenges: Access to justice can be limited by financial and logistical barriers, especially for marginalized communities. Legal processes can be lengthy and complicated, potentially deterring public participation.

7. Environmental Liability and Private Law

• Tort Law
• Strengths: Provides a mechanism for individuals to seek redress for environmental harm. Common law torts like nuisance and negligence have a long history of protecting property and personal rights.
• Challenges: Proving causation and damage in environmental cases can be difficult. Tort law often reacts to harm after it occurs rather than preventing it.
• Statutory Liability
• Strengths: Specific statutes impose clear duties and liabilities for environmental harm, often with stricter standards and higher penalties than common law.
• Challenges: Enforcement of statutory liabilities requires robust regulatory frameworks and resources. Overlapping and fragmented regulations can create confusion and inefficiency.

8. Sector-Specific Regulations

• Water Quality and Pollution
• Strengths: Comprehensive frameworks like the EU Water Framework Directive ensure coordinated efforts to maintain and improve water quality. These regulations set clear standards and objectives.
• Challenges: Achieving and maintaining water quality standards can be resource-intensive. Pollutant sources are diverse and widespread, making regulation and enforcement challenging.
• Waste Management
• Strengths: Laws and policies promote waste reduction, recycling, and safe disposal, reducing environmental impacts. The circular economy concept encourages sustainable resource use.
• Challenges: Managing waste effectively requires significant infrastructure and investment. Illegal dumping and improper disposal practices remain persistent problems.
• Nature Conservation
• Strengths: Protective measures for biodiversity and habitats help preserve ecosystems and species. Legal frameworks like the EU Habitats Directive provide strong protections.
• Challenges: Balancing conservation efforts with economic development can be contentious. Enforcement of conservation laws often faces resource and political constraints.

9. Public and Private Sector Roles

• Government Agencies
• Strengths: Provide authoritative regulation and enforcement to protect the environment. Agencies can mobilize resources and expertise to address complex environmental issues.
• Challenges: Bureaucratic inefficiencies and resource limitations can hinder effectiveness. Political influences may impact the priorities and actions of government agencies.
• Non-Governmental Organizations (NGOs)
• Strengths: Advocate for stronger environmental protections and hold governments and corporations accountable. NGOs often bring specialized knowledge and public awareness to environmental issues.
• Challenges: NGOs may face funding and resource constraints. Their influence can vary depending on political and social contexts.
• Private Sector
• Strengths: Businesses can drive innovation and adopt sustainable practices that reduce environmental impacts. Corporate social responsibility (CSR) initiatives and environmental management systems (EMS) can lead to significant improvements.
• Challenges: Profit motives may conflict with environmental objectives. Voluntary measures lack the enforceability of regulatory requirements, and greenwashing can undermine genuine efforts.

Real-World Applications and Examples

1. Sustainable Development

• Case Example: United Nations Sustainable Development Goals (SDGs)
• The SDGs are a global initiative adopted by all UN Member States in 2015. They provide a blueprint for achieving a better and more sustainable future for all by addressing global challenges, including poverty, inequality, climate change, environmental degradation, peace, and justice. The integration of these goals into national policies reflects the application of sustainable development principles.

2. Precautionary Principle

• Case Example: The EU’s Ban on Neonicotinoids
• The European Union applied the precautionary principle to ban the use of certain neonicotinoid pesticides linked to the decline in bee populations. Despite ongoing scientific debates, the EU chose to act proactively to protect pollinators essential for biodiversity and agriculture.

3. Polluter Pays Principle

• Case Example: BP Deepwater Horizon Oil Spill (2010)
• Following the catastrophic oil spill in the Gulf of Mexico, BP was held accountable under the polluter pays principle. The company paid billions in fines, settlements, and cleanup costs, illustrating the enforcement of this principle to manage and mitigate environmental damage.

4. Environmental Justice

• Case Example: Flint Water Crisis
• The water crisis in Flint, Michigan, where residents were exposed to lead-contaminated water, highlights significant environmental justice issues. Predominantly affecting low-income and minority communities, the crisis brought attention to systemic inequities in environmental health protections and access to safe drinking water.

5. International Environmental Law

• Case Example: Paris Agreement (2015)
• The Paris Agreement is a landmark international treaty within the UNFCCC framework. It aims to limit global warming to well below 2°C above pre-industrial levels, with efforts to limit the increase to 1.5°C. The agreement represents a significant step in international cooperation on climate change, with countries committing to nationally determined contributions (NDCs) to reduce greenhouse gas emissions.

6. European Union Environmental Law

• Case Example: The EU Emissions Trading System (ETS)
• The ETS is the world’s first major carbon market and remains the largest. It caps the total level of greenhouse gas emissions from high-emission sectors and allows industries with low emissions to sell their extra allowances to larger emitters. This market-based approach illustrates the EU’s commitment to reducing emissions and combating climate change.

7. Administrative Regulation

• Case Example: Environmental Protection Agency (EPA) in the United States
• The EPA is a prime example of administrative regulation, tasked with creating and enforcing regulations to protect human health and the environment. Regulations under the Clean Air Act and Clean Water Act demonstrate the agency’s role in reducing pollution and promoting environmental quality.

8. Economic Instruments

• Case Example: Carbon Pricing in British Columbia
• British Columbia implemented a carbon tax in 2008, becoming one of the first jurisdictions in North America to do so. The tax applies to the purchase and use of fossil fuels, creating an economic incentive to reduce greenhouse gas emissions. The revenue-neutral approach, where tax proceeds are returned to residents through tax cuts, illustrates an effective use of economic instruments to address climate change.

9. Self-Regulation

• Case Example: The Forest Stewardship Council (FSC)
• The FSC is an example of industry self-regulation, setting standards for responsible forest management. Certification by the FSC indicates that forest products are sourced sustainably, balancing environmental, social, and economic concerns. This voluntary program demonstrates how self-regulation can promote sustainable practices.

10. Environmental Impact Assessment (EIA)

• Case Example: Heathrow Airport Expansion
• The proposed expansion of Heathrow Airport required a comprehensive EIA to assess the potential environmental impacts. This process involved public consultations, the preparation of an environmental statement, and consideration of alternatives and mitigation measures. The rigorous EIA process ensures that environmental factors are integrated into major development decisions.

11. Strategic Environmental Assessment (SEA)

• Case Example: National Planning Policy Framework (NPPF) in the UK
• The SEA process was applied to the NPPF, ensuring that environmental considerations were integrated into national planning policies. This approach helps align long-term development strategies with sustainable development goals, demonstrating the value of SEA in policy-making.

12. Climate Change Law

• Case Example: The UK’s Climate Change Act 2008
• The Climate Change Act was the world’s first legally binding climate change legislation, setting a target to reduce greenhouse gas emissions by at least 80% by 2050 compared to 1990 levels. The act introduced carbon budgets and established the Committee on Climate Change to advise the government, illustrating robust national climate policy.

13. Enforcement and Compliance

• Case Example: Volkswagen Emissions Scandal (Dieselgate)
• Volkswagen was found to have installed software in diesel vehicles to cheat emissions tests, resulting in significant environmental harm. The company faced extensive legal actions, fines, and settlements. This case underscores the importance of rigorous enforcement and the consequences of non-compliance with environmental regulations.

14. Environmental Crime

• Case Example: Illegal Logging in the Amazon
• Illegal logging in the Amazon rainforest poses significant environmental and social challenges. Enforcement efforts, including international cooperation and the use of technology for monitoring, aim to combat this environmental crime. Successful prosecutions highlight the ongoing struggle to protect critical ecosystems from illegal activities.

15. Public Participation and Access to Justice

• Case Example: Aarhus Convention
• The Aarhus Convention grants the public rights regarding access to information, public participation in decision-making, and access to justice in environmental matters. It empowers citizens and NGOs to play a role in environmental governance, enhancing transparency and accountability.

16. Environmental Liability and Private Law

• Case Example: Rylands v. Fletcher (1868)
• This seminal case established the principle of strict liability for harm caused by the escape of hazardous materials. It set a precedent for holding parties liable for environmental damage under common law, reinforcing the importance of private law in environmental protection.

17. Sector-Specific Regulations

• Case Example: EU Water Framework Directive
• The directive aims to achieve good qualitative and quantitative status of all water bodies. It requires comprehensive water management plans, public participation, and regular monitoring, illustrating effective sector-specific regulation for water protection.

18. Waste Management

• Case Example: Extended Producer Responsibility (EPR) in Germany
• Germany’s EPR policy requires manufacturers to take responsibility for the entire lifecycle of their products, including end-of-life disposal. This policy has led to high recycling rates and innovation in waste management practices, demonstrating the effectiveness of regulatory frameworks in promoting sustainable waste management.

19. Nature Conservation

• Case Example: Natura 2000 Network
• Natura 2000 is a network of protected areas across the EU, established under the Birds and Habitats Directives. It aims to ensure the long-term survival of Europe’s most valuable and threatened species and habitats. The network highlights the importance of coordinated conservation efforts at the regional level.