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4700 results in Environmental law

Page 118 of 235

  • 4 - Techniques of Regulating the Environment

  • Suzanne Kingston, University College Dublin, Veerle Heyvaert, London School of Economics and Political Science, Aleksandra Čavoški, University of Birmingham
  • Book:
    European Environmental Law
    Published online:
    28 May 2018
    Print publication:
    20 July 2017, pp 120-149

  • Summary

    Introduction: The EU's Changing Regulatory Toolbox

    The techniques that the EU uses to regulate for environmental issues have changed dramatically over the past 40 years. For around the first 20 years of its existence, Community environmental policy relied almost exclusively on what we might call ‘traditional’ regulatory techniques, relying primarily on hierarchical proscriptions by lawmakers (e.g. the imposition of environmental standards, or the banning of environmental hazardous substances) to be enforced by public authorities (e.g. agencies or courts).

    These techniques, often called ‘hierarchical’, ‘direct’ or ‘command-and-control’ regulation, were supplemented in the 1990s by an increasing reliance upon market mechanisms to achieve environmental aims. Such ‘market-based’ instruments, such as emissions trading and environmental taxes and charges, now play a vital role in the EU's regulatory mix. At its heart, this change reflects the ideological shift that had taken place under Reagan in the USA, and Thatcher in the UK, towards neo-liberalism and belief that free-market values should apply throughout not only economic, but also social, political and environmental life. While traditional direct regulation remains important within the EU, the use of market-based instruments is being considered in increasingly wide areas of EU environmental policy, including areas such as habitat conservation where it was formerly thought inappropriate.

    A third important part of the regulatory mix in contemporary EU environmental policy is the increasing use of instruments aimed at encouraging individuals and organisations (voluntarily) to get involved in achieving the EU's environmental policy goals. These instruments may be viewed as forming part of the development of ‘network-based’ governance, i.e. reliance on non-hierarchical, societal-driven methods of achieving policy aims. In the case of corporations, one example is the emphasis on ‘corporate social responsibility’, a trend generally embraced by the EU and Member State governments, but regarded with deep suspicion by some environmentalists. More broadly, the emphasis on improving environmental governance in Europe, in particular by means of the principles of access to information, participation and access to justice in environmental matters, provided for in the Aarhus Convention of 1998, can also be viewed as part of the effort to get non-governmental individuals and organisations involved in environmental protection.

  • 10 - EU Water Law

  • Suzanne Kingston, University College Dublin, Veerle Heyvaert, London School of Economics and Political Science, Aleksandra Čavoški, University of Birmingham
  • Book:
    European Environmental Law
    Published online:
    28 May 2018
    Print publication:
    20 July 2017, pp 338-378

  • Summary

    Introduction

    Europe's Waters Interconnected

    On the morning of 1 November 1986, residents in the Schweizerhalle industrial area near Basle in Switzerland were woken by sirens sounded by local authorities. They were told to stay indoors while firemen tackled a blaze at the Sandoz factory that had broken out in a storage building used for pesticides, mercury and other highly poisonous agricultural chemicals. By the end of the day, fourteen people, including one of the firemen fighting the blaze, were being treated in hospital after inhaling the fumes.

    While the immediate toxicological effects were severe, the greatest impacts of the disaster were felt in the receiving aquatic environment. The water that flowed from the scene after the Swiss firemen had put out the blaze was contaminated with an estimated 10–30 tons of herbicides, insecticides and mercury compounds. Within ten days the pollution had travelled over a thousand kilometres along the length of the Rhine into the North Sea. The acute impact of the pesticides was estimated to have killed half a million fish, with some species wiped out completely. The chronic and bio-accumulative properties of mercury caused Dutch officials in the port of Rotterdam even greater concern where dredging brought up the heavy metal from the silt. Dutch residents, meanwhile, feared for the quality of their drinking water.

    The accident came ten years after the 1976 Dangerous Substances in Water Directive had been introduced to regulate intentional discharges into water and eleven years since the 1975 Drinking Water Directive had come into effect. Years of work had been undone in a single night both in Switzerland and the countries downstream. The incident vividly demonstrated the spatial connections between both Member States and countries outside the EU. While the immediate legislative response, the 1982 ‘Seveso Directive’ focused on the provision of information and notification in the case of an emergency, the concern felt by EU water regulators was even more significant in the long term. The incident emphasised the importance of an all-embracing EU system of water law, with a framework that regulates both deliberate and accidental emissions, from industrial point sources and diffuse agricultural run-off.

  • 3 - Principles in EU Environmental Law

  • Suzanne Kingston, University College Dublin, Veerle Heyvaert, London School of Economics and Political Science, Aleksandra Čavoški, University of Birmingham
  • Book:
    European Environmental Law
    Published online:
    28 May 2018
    Print publication:
    20 July 2017, pp 90-119

  • Summary

    Introduction

    One of the characteristic features of environmental law is the importance it attaches to principles. As de Sadeleer argues, environmental law is ‘a goal oriented discipline, marked by the presence of an array of principles’. This begs, of course, the question as to what precisely is meant by a legal ‘principle’. In distinguishing between rules and principles in his classic work, Taking Rights Seriously, Dworkin notes that, while both principles and rules point to particular decisions about legal obligations, they differ in the character of the directions that they give. While rules stipulate answers, due to their specificity and their concrete nature, principles state reasons giving arguments in one direction, but do not necessitate a particular result.

    Within EU law, a distinction should be made between what are termed ‘general’ principles of EU law, on the one hand, and principles specific to EU environmental law, on the other. The precise meaning of a ‘principle’, or indeed a ‘general principle’, of EU law is a matter of some controversy. Summing up the academic commentary on the issue, Tridimas suggests a distinction between two types of ‘general principle’ of EU law:

  • (a) Principles which ‘derive from the rule of law’, such as the public law principles of the protection of fundamental rights, equality, proportionality, legal certainty, the protection of legitimate expectations and the rights of defence; and

  • (b) ‘Systemic principles’ which underlie the constitutional structure of the Union, such as the principles of supremacy of EU law, direct effect, attribution of competences, subsidiarity and the Article 4(3) TEU duty of loyal or sincere cooperation.

    • In many, but not all, cases, the existence of these principles as fundamental constitutional principles of the EU legal order was ‘discovered’ first by the CJEU, on the basis that they were inherent, albeit not explicit, in the Community legal order. In some (but not all) cases, they have subsequently been written in to the Treaty expressly.

    Distinct from these fundamental constitutional principles applicable across EU law generally stand the discrete principles of particular substantive areas of EU law, including those of EU environmental law.

  • 5 - Environmental Rights in Europe

  • Suzanne Kingston, University College Dublin, Veerle Heyvaert, London School of Economics and Political Science, Aleksandra Čavoški, University of Birmingham
  • Book:
    European Environmental Law
    Published online:
    28 May 2018
    Print publication:
    20 July 2017, pp 150-183

  • Summary

    Introduction: Why Environmental (Human) Rights?

    Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.

    Principle 1, Report of the UN Conference on the Human Environment, Declaration of the UN Conference on the Human Environment, UN Doc. A/CONF.48.14/Rev.1, p. 3 (5–16 June 1972) (the ‘Stockholm Declaration’)

    In addition to the regulatory techniques discussed in the previous Chapter – hierarchical, market-based and network-based – a further important means of achieving environmental protection in Europe is by recognising environmental rights. While environmental rights discourse has become more prevalent in Europe in recent years, there are many different understandings of what precisely is meant by an environmental right, and what the consequences of breach of such a right might be. This chapter discusses these understandings, their development before the European courts and other institutions, and the implications of such development.

    As the above extract from the Stockholm Declaration illustrates, conceptualising environmental protection in terms of a human right to an environment of a decent quality is nothing new.

    Yet, over 30 years after this Declaration, the application of human rights principles to environmental issues remains contested. Central questions of controversy include the following:

  • • Who should have standing to enforce environmental human rights? Should standing be limited to the victims of breaches of rights, as is traditional in many human rights regimes, or should those acting in the public interest have standing to bring environmental rights claims?

  • • How can we ensure that the interests of future generations, who may be severely affected by environmental degradation occurring now, are represented?

  • • Does a human rights-based approach to environmental protection risk prioritising anthropocentric, human-focused concerns over other environmental concerns?

  • • Does a human rights-based approach to environmental protection mean applying existing general human rights law to environment-related issues (i.e. ‘greening’ existing human rights)? Or should we recognise a self-standing right to a decent environment?

  • • Alternatively, should we focus on embedding procedural rights such as those ensuring that the public is informed of, and can participate in and challenge, environmental decisions, rather than trying to define a substantive right to a decent environment?

  • 11 - Impact Assessment

  • Suzanne Kingston, University College Dublin, Veerle Heyvaert, London School of Economics and Political Science, Aleksandra Čavoški, University of Birmingham
  • Book:
    European Environmental Law
    Published online:
    28 May 2018
    Print publication:
    20 July 2017, pp 379-409

  • Summary

    Environmental impact assessment (EIA) has formed one of the principal horizontally applicable environmental regulatory techniques within the EU since 1985. Within EU law, it is employed in two important Directives. First, the procedural requirement to carry out an EIA applies, by virtue of the EIA Directive, to projects likely to have significant effects on the environment. Secondly, the Strategic Environmental Assessment (SEA) Directive requires an environmental impact assessment to be carried out at the higher level of policy formation, namely in the case of plans and programmes prepared by public authorities and likely to have significant environmental effects. The requirements of each of these Directives, and their interpretation by the CJEU, are discussed further below.

    Crucially, each of these Directives imposes purely procedural obligations, and does not require decision-makers to take whatever decision is best for the environment. Thus, the CJEU has expressly confirmed that the EIA Directive does not lay down substantive rules on the balancing of the environmental effects of a project with other factors, or prohibit the completion of projects which are liable to have negative effects on the environment. In that respect, the technique of impact assessment at the level of individual projects, plans and programmes is similar in nature to the technique of regulatory impact assessment imposed, in particular, as a result of the Article 11 TFEU integration obligation, and discussed in Chapter 3. Ultimately, neither technique ensures the achievement of any particular environmental quality level, or prohibits regulators from choosing a course which will seriously damage the environment.

    History and International Context

    Environmental Impact Assessment can be described as a process for identifying the likely consequences for the biogeophysical environment, and for man's health and welfare, of implementing particular activities, and for conveying this information at a stage when it can materially affect their decision to those responsible for sanctioning the proposals.

    The technique of EIA was first formally incorporated in legislation in the USA, in the form of the National Environmental Policy Act (NEPA). In the wake of the rise in scientific and broader social concern about the effects of human activity on the environment of the 1960s and 1970s, NEPA required federal US agencies to produce a statement of environmental impacts and to make it available to the public, to show that these had been identified and addressed.

Innovations in Urban Climate Governance
  • Voluntary Programs for Low-Carbon Buildings and Cities
  • Jeroen van der Heijden
  • Published online:
    13 July 2017
    Print publication:
    20 July 2017
  • Building on unique data, this book analyses the efficacy of a prominent climate change mitigation strategy: voluntary programs for sustainable buildings and cities. It evaluates the performance of thirty-five voluntary programs from the global north and south, including certification programs, knowledge networks, and novel forms of financing. The author examines them through the lens of club theory, urban transformation theory, and diffusion of innovations theory. Using qualitative comparative analysis (QCA) the book points out the opportunities and constraints of voluntary programs for decarbonising the built environment, and argues for a transformation of their use in climate change mitigation. The book will appeal to readers interested in sustainable city planning, climate change mitigation, and voluntarism as an alternative governance mechanism for achieving socially and environmentally desirable outcomes. The wide diversity of cases from the global north and south generate new insights, and offers practical guidelines for designing effective programs.

Why Environmental Policies Fail
  • Jan Laitos
  • Published online:
    10 July 2017
    Print publication:
    25 July 2017
  • This book is for those who are not just interested in the ways humans have harmfully altered their environment, but instead wish to learn why the many governmental policies in place to curb such behavior have been unsuccessful. Since humans began to exploit natural resources for their own economic ends, we have ignored a central principle: nature and humans are not separate, but are a unified, interconnected system in which neither is superior to the other. Policy must reflect this reality. We failed to follow this principle in exploiting natural capital without expecting to pay any price, and in hurriedly adopting environmental laws and policies that reflected how we wanted nature to work instead of how it does work. This study relies on more accurate models for how nature works and humans behave. These models suggest that environmental laws should be consistent with the laws of nature.

  • Construing International Climate Change Law as a Compliance Regime

  • Benoit Mayer
  • Journal:
    Transnational Environmental Law / Volume 7 / Issue 1 / March 2018
    Published online by Cambridge University Press:
    03 July 2017, pp. 115-137

  • Under the no-harm principle, states must prevent activities within their jurisdiction from causing extraterritorial environmental harm. It has been argued elsewhere that excessive greenhouse gas emissions (GHG) from industrial states constitute a breach of this principle and instigate state responsibility. Yet, the relevance of general international law for climate change does not obviate a need for more specific international climate change agreements. This article argues that the climate regime is broadly compatible with general norms. It can, furthermore, address a gap in compliance with general international law – namely, the systematic failure of industrial states to cease excessive GHG emissions and to provide adequate reparations. As a compliance regime, the international climate change law regime defines global ambition and national commitments and initiates multiple processes to raise awareness, set political agendas, and progressively build momentum for states to comply with their obligations under general international law.

  • TEL volume 6 issue 2 Cover and Front matter

  • Journal:
    Transnational Environmental Law / Volume 6 / Issue 2 / July 2017
    Published online by Cambridge University Press:
    27 June 2017, pp. f1-f4
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