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The Oxford Handbook Of Comparative Environmental Law [1st Edition]
0198790953, 9780198790952, 0191833355, 9780191833359

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Emma Lees
Jorge E. Viñuales

Table of contents :
Cover......Page 1
The oxford handbook of COMPARATIVE ENVIRONMENTAL LAW......Page 4
Copyright......Page 5
Acknowledgements......Page 6
Contents......Page 8
Table of Cases......Page 14
Table of Legislation......Page 36
List of Contributors......Page 76
Abbreviations......Page 80
FRAMING COMPARATIVE ENVIRONMENTAL LAW......Page 82
Chapter 1: Comparative Environmental Law: Structuring a Field......Page 84
1.1 Overview......Page 85
1.2.1 Preliminary Observations......Page 89
1.2.2 The Historical Setting: Descriptive and Evolutionary Approaches......Page 91
1.2.3 The Conceptual Approach......Page 92
1.2.4 The Functionalist Approach......Page 93
1.2.5 The Factual Approach......Page 94
1.2.6 Legal Formants......Page 95
1.2.8 Legal Transplants......Page 96
1.2.9 From Comparative Method to Comparative Environmental Law......Page 97
1.3.1 Preliminary Observations......Page 98
1.3.2 Bottom-up Functionalism......Page 99
1.3.3 Top-down Functionalism......Page 100
1.3.4 The Functionalist Approach and the Specificities of Environmental Law......Page 102
1.4.1 Preliminary Observations......Page 104
1.4.2.2 Diversity across Jurisdictions......Page 105
1.4.2.3 Diversity in the Types of Responses to Common Problems......Page 106
1.4.2.4 Diversity of Building Blocks......Page 107
1.4.2.6 Overview of the Methodology......Page 109
1.4.3 The Architecture of Environmental Law as a Single Overall Technology......Page 110
1.5 Concluding Remarks: Structuring a Field......Page 111
On comparative law and method......Page 112
On environmental law and policy......Page 113
On comparative environmental law......Page 114
Chapter 2: Value in Comparative Environmental Law—3D Cartography and Analytical Description......Page 116
2.1 Introduction......Page 117
2.2 Instrumentality......Page 120
2.2.1 Culture Within Law—Rule of Law......Page 121
2.2.2.1 Transplantation in Toto......Page 123
2.2.2.2 Failure in Design and Instrumental Outcomes......Page 124
2.2.3.1 Selective Detail to Allow for Analytical Comparison......Page 126
2.2.3.2 Design as Distinct from Causation......Page 127
2.2.4 Conclusions on Instrumentality......Page 128
2.3.1.1 Context in Individual Chapters......Page 129
2.3.1.2 Culture as Part of Structure......Page 130
2.3.2 The Attitude towards Compliance and Wider Cultural Approaches to ‘the Environment’......Page 131
2.3.3 Rights-based Thinking......Page 132
2.3.4 Constitutionality......Page 134
2.3.5 Conclusions on Legal Culture......Page 135
2.4 Value in Model-thinking......Page 136
Part I: COUNTRY STUDIES......Page 138
Chapter 3: Australia......Page 140
3.2.1 The Constitutional Structure of Australian Environmental Law......Page 141
3.2.1.1 The Division of Legislative Capacity Between the States and the Commonwealth......Page 142
3.2.1.2 The Relationship Between Commonwealth and State Legislation in Practice......Page 144
3.3 The Structure and Substance of Environmental Law......Page 146
3.3.1.1 Pollution......Page 147
3.3.1.2 Harm......Page 148
3.3.2.1 Protected Areas and Species......Page 149
3.3.2.2 Heritage Conservation......Page 150
3.3.3.1 Controlling Land Use......Page 151
3.3.3.2 Ecologically Sustainable Development and Climate Change......Page 152
3.3.3.3 Judicial Responses to Climate Change......Page 153
3.3.3.4 Statutory Responses to Climate Change......Page 154
3.3.3.5 The Relevance of Polycentric Decision-making......Page 156
3.4.2 The Need for Information and Analysis......Page 157
3.4.3.2 Enforcing Liability Rules......Page 158
3.4.3.4 The Nature of Environmental Litigation......Page 160
3.6 Selected Bibliography......Page 161
Chapter 4: Brazil......Page 163
4.1 Introduction......Page 164
4.2.1.1 Federal and State Government Ownership and Power to Manage Resources......Page 165
4.2.1.2 Power to Legislate on Environmental Matters......Page 166
4.2.2.2 Ecological Function of Property......Page 168
4.3.1 Development of Environmental Law in Brazil......Page 170
4.3.2.1 National Environmental Policy Act of 1981 (Lei 6938/81)......Page 171
4.3.2.2 Environmental Impact Assessment (CONAMA Regulation No. 1 of 1986 and No. 237 of 1997)......Page 173
4.3.2.3 The 2012 Forest Code......Page 174
4.3.2.5 Environmental Crimes (1998)......Page 177
4.3.2.6 Additional Environmental Statutes—Water Law, Climate Change, and Solid Waste......Page 178
4.4 Implementation: The Critical Challenge......Page 179
4.4.1 Executive Branch and Administrative Agencies......Page 180
4.4.2 Prosecutors (Ministério Público)......Page 181
4.4.3.1 Basic Judicial Structure of Brazil......Page 182
4.4.3.2 Environmental Jurisprudence and the STJ......Page 183
4.5 Law in Action: Deforestation and Land Use Change in the Amazon......Page 185
4.6 Conclusion......Page 187
4.7 Selected Bibliography in English......Page 188
Chapter 5: Canada......Page 189
5.2.1 Decolonizing Environmental Law: Indigenous Environmental Jurisdiction......Page 190
5.2.2 Compromise Before Confrontation: Canadian Environmental Federalism......Page 192
5.2.4 Citizens and the State: Environmental Rights and Electoral Politics......Page 194
5.3.1 Command Regulation......Page 195
5.3.2 Information-based Regulation......Page 196
5.3.3 Economic Instruments......Page 198
5.3.4 Civil Litigation......Page 199
5.3.5.2 The Precautionary Principle......Page 201
5.3.5.3 Sustainable Development......Page 202
5.3.5.4 Environmental Justice......Page 203
5.4.1 Institutions......Page 204
5.4.2 Public Enforcement......Page 205
5.4.3 Private Enforcement......Page 206
5.5 Conclusion......Page 207
5.7 Selected Bibliography......Page 208
Chapter 6: People’s Republic of China......Page 209
6.1 Overview......Page 210
6.2.3.1 General Organization......Page 211
6.2.3.2 Environmental Legislation......Page 212
6.2.3.4 Oversight of Government Work......Page 213
6.3.1 Introduction......Page 214
6.3.2.1 The Environmental Protection Law (2014)......Page 215
6.3.3 Environment-related Laws......Page 216
6.4.1 Introduction......Page 217
6.4.2.1 Organizational Structure......Page 218
6.4.2.3 Cadre Evaluation......Page 219
6.4.3.1 Overview of the System......Page 220
6.4.3.2 The Rise of Environmental Public Interest Litigation......Page 221
6.5 IPPEP Model and Environmental Governance in China......Page 222
6.5.1 Major Parties and Players......Page 224
6.5.2 Rules of Conduct......Page 226
6.5.3 The Relationship between the Major Players and the Rules of Conduct......Page 227
6.7 Selected Bibliography......Page 228
Chapter 7: The European Union......Page 230
7.1 Introduction......Page 231
7.2 Constitutional Basis for Environmental Regulation in the European Union......Page 232
7.3 Structure and Substance......Page 234
7.3.1.1 Environmental Principles......Page 235
7.3.1.2 Access to Information and Justice......Page 236
7.3.1.4 Liability for Environmental Damage......Page 237
7.3.2.1 Waste......Page 238
7.3.2.3 Water......Page 240
7.3.2.4 Conservation......Page 241
7.3.2.5 Climate Change......Page 242
7.3.2.6 Air Quality......Page 243
7.4.1 Overview......Page 244
7.4.3.1 Foundational Authority......Page 245
7.4.3.2 Influence in Practice......Page 246
7.4.3.3 Comparative Environmental Law in the CJEU: Modes of Engagement......Page 247
7.6 Selected Bibliography......Page 250
Chapter 8: France......Page 252
8.1 Introduction......Page 253
8.2.2 The Constitutionalization of French Environmental Law......Page 254
8.2.3 Integration of International and European Law into French Environmental Law......Page 255
8.2.4 The Evolution of Environmental Governance in France......Page 257
8.3.1 Environmental Public Law......Page 258
8.3.2 Environmental Private Law......Page 260
8.4.2 Local Governments......Page 261
8.4.4 The Role of French Courts in the Protection of the Environment......Page 262
8.5.1 The Application of the Precautionary Principle......Page 263
8.5.2 Remediation of Ecological Damage......Page 264
8.5.3 The Protection of the Environment through Criminal Law......Page 266
8.5.4 Business: A Major Actor for the Protection of the Environment......Page 268
8.6 Conclusion......Page 269
8.7 Selected Bibliography......Page 270
Chapter 9: Germany......Page 271
9.1 Introduction: The Characteristics of German Environmental Law......Page 272
9.2.1 Environmental Constitutionalism: National Objectives and Obligations to Protect......Page 273
9.2.2.2 Legislative Competences......Page 275
9.2.2.3 Executive Competences......Page 276
9.3 Structure and Substance of Environmental Law......Page 277
9.3.1.1 Air Pollution Control......Page 278
9.3.1.2 The Regulation of Point Sources: Industrial Installations Legislation......Page 279
9.3.1.3 Climate Protection......Page 280
9.3.2 Water Legislation......Page 281
9.3.2.2 Water Protection......Page 282
9.3.2.3 Water Protection and Agriculture......Page 283
9.3.3 Waste Legislation......Page 284
9.3.4 Nature and Species Protection Legislation......Page 285
9.4 Implementation Framework......Page 287
9.5 Conclusion......Page 290
9.7 Selected Bibliography......Page 291
Chapter 10: India......Page 293
10.2 Allocation of Powers......Page 294
10.3.1 The Importance of Policy......Page 296
10.3.2.1 The Water (Prevention and Control of Pollution) Act, 1974......Page 298
10.3.2.4 The Wildlife (Protection) Act, 1972......Page 299
10.3.2.6 The Environment (Protection) Act, 1986......Page 300
10.4.1 The Ministry of Environment, Forests, and Climate Change......Page 301
10.4.2 Central Pollution Control Board......Page 302
10.4.4 Key Challenges......Page 303
10.4.5.1 Doctrine of Absolute Liability......Page 304
10.4.5.3 Precautionary Approach......Page 305
10.4.5.5 Sustainable Development......Page 306
10.4.5.6 The National Green Tribunal Act, 2010......Page 307
10.4.5.6.1 Sand Mining......Page 308
10.4.5.6.3 Air Pollution in the National Capital Territory......Page 309
10.4.5.6.5 Ganga Pollution Cases......Page 310
10.6 Selected Bibliography......Page 311
11.1 Overview......Page 313
11.2.1 The Constitution......Page 315
11.2.2 Devolution of Powers......Page 316
11.3 The Structure and Substance of Environmental Law......Page 317
11.3.1 Pollution Control and Hazardous Waste......Page 318
11.3.2 Air Pollution and Climate Change......Page 321
11.3.3 Marine and Fisheries......Page 324
11.4.1 The Merger of the Environment and Forestry Ministries......Page 325
11.4.2 Judicial Enforcement......Page 326
11.4.2.1 Certified Judges for the General and Administrative Courts......Page 327
11.4.2.2 Judicial Decisions and Enforcement......Page 329
11.4.2.3 Judicial Review in the Constitutional Court......Page 330
11.4.2.5 Enforcement of Constitutional Court Decisions......Page 331
11.5 Conclusion......Page 332
11.6 Selected Bibliography......Page 333
Chapter 12: Japan......Page 334
12.1 Overview......Page 335
12.2.1 Constitutional Law......Page 337
12.2.2 The Environmental Basic Law......Page 338
12.2.4 Prefectural and Municipal Planning......Page 339
12.3 Structure and Substance of Environmental Law......Page 340
12.3.1 Nature Conservation......Page 341
12.3.2 Air Quality......Page 343
12.3.3 Noise Protection......Page 344
12.3.4 Waste Management......Page 345
12.3.6 Hazardous Substances......Page 347
12.3.7 Impact Assessment......Page 349
12.3.8 Climate Change......Page 350
12.4 Implementation Framework......Page 351
12.4.1 Civil Liability in Tort......Page 352
12.4.2 Civil Injunctive Remedies......Page 353
12.4.4 State Liability......Page 354
12.4.5 Environmental ADR......Page 355
12.5 Selected Problem: Nuclear Energy Law as Environmental Law......Page 356
12.7 Selected Bibliography......Page 357
Chapter 13: Mexico......Page 358
13.2 Allocation of Powers......Page 359
13.2.2 Human Rights and the ‘Constitutionality Block’......Page 360
13.2.3 Human Right to a Healthy Environment......Page 361
13.2.5 Collective Rights and Access to Natural Resources......Page 362
13.3 Structure and Substance of Environmental Law......Page 363
13.3.1.2 Climate Change......Page 364
13.3.2 Water......Page 365
13.3.3.1 Protected Areas......Page 366
13.3.3.2 Species......Page 367
13.3.4 Waste......Page 368
13.4.1 Access to Environmental Information......Page 369
13.4.2 Access to Environmental Participation......Page 370
13.4.3.1 Environmental Liability......Page 372
13.4.3.3 Collective Amparo......Page 373
13.4.3.4 Environmental Criminal Justice......Page 374
13.6 Select Bibliography......Page 375
Chapter 14: Singapore......Page 377
14.1 Introduction......Page 378
14.2.2 Legal System and Sources of Law......Page 379
14.3.1.2 Pollution from Stationary Sources/Industries......Page 381
14.3.1.3.1 discouraging car ownership......Page 382
14.3.1.4 Air Pollution—Emissions from Other Sources......Page 383
14.3.2.2 Water Management and Reuse......Page 385
14.3.2.3 Water Pollution Laws......Page 386
14.3.3 Waste Management Laws......Page 387
14.3.4 Contaminated Sites......Page 388
14.3.6 Nature Conservation Laws......Page 389
14.3.7 Climate Change and Future Challenges......Page 390
14.4.1 Government Agencies......Page 391
14.4.2.1 In General......Page 392
14.4.2.2 Judicious Siting of Industries......Page 393
14.6 Selected Bibliography......Page 395
15.1.1 Introduction......Page 396
15.1.2 International Law and South African Domestic Law......Page 397
15.1.3 The Bill of Rights, the Environmental Right, and Sustainable Development......Page 398
15.1.4 Other Relevant Rights in the Bill of Rights......Page 400
15.1.5 Distribution of Competences Among National, Provincial, and Local Government......Page 402
15.2.1 The National Environmental Management Act (NEMA)......Page 403
15.2.2 NEMA Principles and Sectorial Laws......Page 404
15.3.1 Co-operative Government in Practice......Page 406
15.3.2 Relevant Governmental Departments—From Integration to Sectorialization......Page 409
15.4 Selected Problem: The ‘One Environmental System (OES)’......Page 411
15.5 Conclusion......Page 413
15.6 Selected Bibliography......Page 414
16.1 Overview......Page 415
16.2.1 Overview of Devolution of Power......Page 416
16.2.2 Constitutional Right and Its Implementation......Page 417
16.3.1 Overall Structure and Principles of Environmental Law......Page 419
16.3.2.1 Air Preservation and Climate Change Regime......Page 421
16.3.2.2 Water and Ocean Preservation......Page 423
16.3.2.3 Soil Environment Preservation......Page 424
16.3.2.4 Chemicals Management......Page 425
16.3.2.5 Recycling and Waste Management......Page 426
16.3.2.6 Wildlife and National Resources Preservation......Page 427
16.4.1 Administrative and Criminal Enforcement......Page 428
16.4.2 Private Enforcement of Environmental Law......Page 429
16.5 Conclusion......Page 430
16.6 Selected Bibliography......Page 431
Chapter 17: United Kingdom......Page 432
17.2.1 The Forces of History......Page 433
17.2.2 External Forces—The Impact of the European Union......Page 435
17.2.3 Internal Forces—The (Weak) Constitutional Basis for UK Environmental Law......Page 436
17.2.4 Internal Forces—Constitutional Complexity in a Devolved UK......Page 437
17.3 Structure and Substance of Environmental Law......Page 439
17.3.2 Air Quality and Climate Change......Page 440
17.3.3 Water Quality......Page 442
17.3.4 Waste Management......Page 443
17.3.5 Nature Conservation and Landscape Protection......Page 444
17.4 Implementation Framework......Page 445
17.4.1 Central Government......Page 446
17.4.3 Specialist Agencies......Page 447
17.4.4 The Role of Courts and Tribunals......Page 448
17.4.4.1 Access to Justice......Page 449
17.4.4.3 Time Limits......Page 450
17.4.4.4 Costs and Funding......Page 451
17.4.5 Enforcement......Page 452
17.5 Conclusion: Fragmentation and Integration? UK Environmental Law in Flux......Page 453
17.6 Selected Bibliography......Page 454
Chapter 18: United States of America......Page 455
18.2.1 Introduction......Page 456
18.2.3 Delegation to Regulatory Agencies......Page 457
18.2.4 Regulation and Private Property......Page 458
18.3.1.2 Implementation Through State Implementation Plans (SIPs)......Page 459
18.3.2 Clean Water Act......Page 461
18.3.2.1 Point Source Regulation......Page 462
18.3.3.1 Solid Waste and Solid Hazardous Waste......Page 463
18.3.3.2 Generators, Transporters, and TSDs......Page 464
18.3.4.1 The Operation of CERCLA......Page 465
18.3.4.2 Liability for the Costs of Response Actions......Page 466
18.3.5.1 A Procedural Statute......Page 467
18.4.1 Agency Authorities......Page 468
18.4.1.2 Challenges to Agency Rule-making and Standards of Review......Page 469
18.4.2.1 Administrative Enforcement......Page 470
18.4.2.2 Civil Remedies: Penalties and Injunctions......Page 471
18.4.3 Citizen Suits......Page 472
18.4.3.2 Alternative to Government Action......Page 473
18.5 Conclusion......Page 474
18.6 Selected Bibliography......Page 475
Part II: PROBLEMS......Page 476
Chapter 19: Atmospheric Pollution......Page 478
19.1 Atmospheric Pollution: Definition and Legal Boundaries......Page 479
19.2 Air Pollution Control in a Transboundary Context......Page 480
19.3.1.1 Regulatory Competence......Page 482
19.3.1.2 Areas of Activity......Page 483
19.3.2.2 Areas of Activity......Page 488
19.3.3.1 Regulatory Competence......Page 491
19.3.3.2 Areas of Activity......Page 492
19.4.1 The Regulatory System of Air Pollution Control......Page 494
19.4.3 Instrument Choice......Page 495
19.4.4 The Role of Courts......Page 496
19.5 Conclusion......Page 497
19.7 Select Bibliography......Page 498
Chapter 20: Environmental Regulation of Freshwater......Page 499
20.1.1 From Working Rivers to Rivers that Work......Page 500
20.1.2 The Emergence of the Normative River......Page 501
20.2.2.1 Introduction......Page 503
20.2.2.2 What is Pollution?......Page 504
20.2.3 National Versus International Regulation of Waste Stream Discharges: Minimal International Law Constraints on National Prerogative......Page 505
20.2.4.2 Water Quality Standards......Page 506
20.2.4.4 The Use of Economic Instruments......Page 507
20.2.4.5 Judicial Actions......Page 508
20.3.1 Recognition Options......Page 509
20.3.2.2 Water Reserves......Page 510
20.3.3 Reservoir Operation or Reoperation......Page 512
20.4.1 Introduction......Page 513
20.4.2 The Ramsar Convention System in Publicly Owned Land......Page 514
20.4.3 The Protection of Wetlands Located on Privately-owned Land......Page 516
20.5 Trends in the Environmental Regulation of Freshwater......Page 517
20.6 Select Bibliography......Page 518
Chapter 21: Land Degradation......Page 519
21.1 Overview......Page 520
21.2 Causes and Effects of Land Degradation......Page 521
21.3.1.1 Introduction......Page 525
21.3.1.2 The UNCCD......Page 526
21.3.1.4 The UN Framework Convention on Climate Change......Page 527
21.3.1.5 Land Degradation as a Common Concern of Humankind......Page 529
21.3.2 Regional Initiatives......Page 530
21.3.3.2 The UN Sustainable Development Goals 2015 and Land Degradation Neutrality......Page 532
21.3.4.1 Introduction......Page 534
21.3.4.2 Land Tenure......Page 535
21.3.4.4 Farming Systems and Land Use......Page 536
21.3.4.5 The Role of Protected Areas......Page 537
21.3.4.6 Physical Planning to Avoid Land Degradation......Page 538
21.4 Concluding Remarks......Page 539
21.5 Select Bibliography......Page 540
Chapter 22: Nature Conservation......Page 541
22.1 Overview......Page 542
22.2.2.1 Notion......Page 545
22.2.2.2 Dimensions of Biodiversity’s Intrinsic Value......Page 546
22.3.1 The Transition from Nature Wonders to Wildlife Conservation......Page 547
22.3.2 Legal Definition and Criteria for Designation......Page 548
22.3.3 Size of Protected Areas and Wildlife Protection......Page 550
22.3.4 Wildlife and Connectivity......Page 553
22.4 Specific Measures for the Protection of Wild Species......Page 554
22.4.1 Legal Status......Page 555
22.4.2 Criteria for Classification......Page 556
22.4.3 The Role of Lists......Page 557
22.4.4 Mechanisms for Protection: General Prohibitions and Limited Exemptions......Page 559
22.4.5 Wandering and Alien Species......Page 561
22.4.6 Trade in Species: The Role of CITES......Page 563
22.5 Wildlife, Property Rights, and Market Mechanisms......Page 565
22.7 Select Bibliography......Page 568
Chapter 23: Regulation of Marine Capture Fisheries......Page 570
23.2 Overfishing and Goals Pursued by Regulatory Systems......Page 571
23.3 Analytical Framework......Page 574
23.4.1 Introduction......Page 576
23.4.2.2 Japan......Page 577
23.4.3.1 The EU......Page 578
23.4.3.2 Japan......Page 580
23.4.3.3 New Zealand......Page 582
23.4.4.1 The EU......Page 583
23.4.4.3 New Zealand......Page 584
23.4.5 Laws and Policies Affecting the Functioning and Effectiveness of Fishing Regulation......Page 585
23.4.6.2 System Specificity......Page 586
23.4.6.3 Specific Shortcomings......Page 587
23.5 Concluding Remarks......Page 588
23.7 Select Bibliography......Page 589
Chapter 24: Genetically Modified Organisms......Page 590
24.1 Overview......Page 591
24.2 Risk Assessment and Regulation......Page 592
24.2.1 Risk Assessment in the EU and the US: Precautionary Versus Permissive Approaches......Page 593
24.2.2 Risk Regulation in the EU and the US: Process Versus Product Regulation......Page 596
24.2.3 From Differences to Disputes......Page 597
24.2.4.1 Brazil......Page 598
24.2.4.2 China......Page 599
24.2.5 Comparative Approaches to Risk Assessment and Regulation of Genetically Modified Foods......Page 601
24.3 Labelling of Genetically Modified Organisms......Page 602
24.4 Intellectual Property Rights and Genetically Modified Organisms......Page 605
24.4.1 Legal Framework......Page 606
24.4.2 Comparative Approaches to Patenting Genetically Modified Organisms......Page 608
24.5 Concluding Remarks......Page 610
24.6 Select Bibliography......Page 611
Chapter 25: Climate Change and Energy Transition Policies......Page 612
25.1 Overview......Page 613
25.2.1.1 Comprehensive Regulation......Page 614
25.2.1.2 Patchworks of Old and New Laws......Page 617
25.2.1.3 Policy But No Laws......Page 619
25.2.1.4 Gestures Towards Policy Only......Page 620
25.2.2.1 Levels: National, Sub-national, and Local......Page 621
25.2.2.3 Branches: Courts and Litigation......Page 624
25.2.3.1 Quantitative Targets......Page 625
25.2.3.2 Pricing Emissions: Taxes and Cap-and-Trade Schemes......Page 628
25.2.3.4 Subsidies and Tax Incentives......Page 629
25.2.3.5 Information......Page 630
25.2.3.6.1 Land Use, Land Use Change, and Forestry (LULUCF)......Page 631
25.2.3.6.2 Methane from Solid Waste and Wastewater......Page 633
25.2.3.6.3 High-GWP Substances......Page 634
25.3.1 Scope and Structure of the Governing Law......Page 635
25.3.2 Substantive Provisions......Page 636
25.3.2.1.1 Buildings......Page 637
25.3.2.1.2 Equipment and Appliances......Page 639
25.3.2.1.3 Vehicles......Page 640
25.3.2.2.1 Mandates and Incentives to Ensure Price-competitiveness......Page 642
25.3.2.2.2 Siting of Transmission Lines......Page 643
25.3.2.2.3 Integrating Renewables into Grid Operations and Accounting......Page 645
25.3.2.3 Fossil Fuels......Page 646
25.3.2.3.2 Nuclear Phase-out First......Page 647
25.3.2.3.4 Fuel-switching......Page 648
25.3.2.3.6 Fossil Fuel Subsidies......Page 649
25.3.2.4 Nuclear......Page 650
25.4.1 Supporting Low-Emissions Development......Page 652
25.4.2 Dealing with F-gases......Page 653
25.4.3 Controlling Aircraft and Marine Shipping Emissions......Page 654
25.5.1.1 Performance of Energy Efficiency Measures......Page 655
25.5.1.2 The Role of Circumstance......Page 656
25.5.2 Transferability of Techniques......Page 657
25.7 Select Bibliography......Page 658
Chapter 26: Regulation of Chemicals......Page 659
26.1 Overview......Page 660
26.2.1 What is Chemicals Regulation?......Page 661
26.2.2 Hazard and Risk......Page 662
26.2.3 Data......Page 663
26.3.2 Identification......Page 665
26.3.3 Prioritization......Page 667
26.3.4 Risk Assessment......Page 668
26.3.5.2 Information Tools......Page 670
26.3.5.3 Prescriptive Tools......Page 672
26.3.5.4 Liability Entitlements......Page 674
26.4.1.2 Registration......Page 675
26.4.1.4 Authorization......Page 677
26.4.2.1 Introduction......Page 679
26.4.2.3 Prioritization, Evaluation, and Management of Active Chemicals: TSCA § 6......Page 681
26.4.2.4 New Chemicals and Significant New Uses: TSCA § 5......Page 684
26.5 Concluding Remarks......Page 685
26.7 Select Bibliography......Page 687
27.1 Overview......Page 688
27.2.2 Centralized Versus Delegated......Page 690
27.2.3 Unified Versus Fragmented......Page 691
27.2.4 Integrated Versus Specific......Page 692
27.3.1 Introduction......Page 693
27.3.2.1 Definition of Waste......Page 694
27.3.2.2 Waste Hierarchy......Page 695
27.3.2.3 Waste Streams and Waste Classifications......Page 697
27.3.3.1 Reduction of Waste Generation......Page 698
27.3.3.3 Standards of Waste Treatment......Page 699
27.3.3.4 Prohibitions and Restrictions of Movement......Page 700
27.3.3.5 Extended Producer Responsibility......Page 701
27.3.4 The Move to Circular Economy Approaches......Page 704
27.4 Concluding Remarks......Page 705
27.5 Select Bibliography......Page 706
28.1 Overview......Page 707
28.2 Unity of Aim?......Page 710
28.3 The Definition of Contamination......Page 711
28.4 Liability......Page 715
28.5 Models for Remediation......Page 718
28.6 Concluding Remarks......Page 720
annex—tables for comparison......Page 721
Part III: SYSTEMS......Page 728
SECTION A: INFRASTRUCTURE......Page 730
29.1 Overview......Page 732
29.2.1 Introduction......Page 734
29.2.2 Connection through Soft Law Instruments......Page 736
29.2.3 Connection through Judicial Dialogue......Page 742
29.2.4 Connection through Legal Scholarship......Page 746
29.3.1 Introduction......Page 750
29.3.2 The European Union......Page 751
29.3.3 India......Page 753
29.3.4 Brazil......Page 755
29.3.5 New South Wales (Australia)......Page 756
29.4 Concluding Remarks......Page 757
29.5 Select Bibliography......Page 758
Chapter 30: Distribution of Powers......Page 759
30.1 Overview......Page 760
30.2.1 The Distinction Between Federal and Unitary Systems......Page 761
30.2.3 The Role of Executive Competences......Page 765
30.2.4 Fiscal, Taxing, and Spending Competences......Page 768
30.2.5 The Role of Local Community Governmentsand Self-governing Bodies......Page 769
30.3 General Principles and Concepts of Distribution of Powers......Page 770
30.3.1 Reasons for Decentralization to Local Government......Page 771
30.3.2.1 Transboundary Environmental Effects and Goods......Page 773
30.3.2.2.1 equal market access......Page 775
30.3.2.2.2 level playing field......Page 776
30.3.2.3 Equal Living Conditions and Ubiquitous Safety Levels......Page 777
30.3.3.1 Cooperative and Goal-oriented Steering as a Means of Functional Power Distribution......Page 778
30.3.3.2 The Effectiveness Dilemma of the Cooperative Approach and the Need for Effective Flanking......Page 779
30.3.3.4 The Relation Between Legislative Steering and Local Permitting: Integrated Pollution Control......Page 780
30.3.3.5 The Role of Coordination......Page 781
30.4 Concluding Remarks......Page 782
30.5 Select Bibliography......Page 783
31.1 Overview......Page 784
31.2 Property Paradigms and Environmental Law......Page 785
31.3 ‘Public’ and ‘Private’ Conceptions of Property......Page 787
31.4 Interactions Between ‘Public’ and ‘Private’ Rights......Page 790
31.5 Indigenous Property Systems: Custom and Resource Use......Page 793
31.6 Property Structures and Environmental Stewardship......Page 796
31.7 Concluding Remarks......Page 798
31.9 Select Bibliography......Page 799
Chapter 32: Regulatory Organization......Page 800
32.1 Overview: Regulatory Organization in the Modern World......Page 801
32.2 The Legislative Branch of Government as Regulator......Page 803
32.3.1 Introduction......Page 805
32.3.2 Single Versus Multiple Agencies......Page 806
32.3.3 Integrated Versus Functional Agencies......Page 808
32.3.4 Concentrated Versus Devolved Systems......Page 809
32.4 The Judicial Branch of Government as Regulator......Page 810
32.5 The Fourth (Integrity) Branch of Government as Regulator......Page 814
32.6.1.1 Promoting Environmental Regulation......Page 816
32.6.1.2 Formulating Environmental Regulation......Page 817
32.6.1.4 Enforcing and Shaping Environmental Regulation......Page 818
32.6.2 Specialist ‘Third Party Surrogate Regulators’......Page 819
32.6.2.1 Insurance Companies......Page 820
32.6.2.3 Accredited Environmental Assessors and Development Certifiers......Page 821
32.6.2.4 Standards Organizations......Page 823
32.7.2 Individuals as Regulators......Page 824
32.7.3 Enterprises as Regulators......Page 825
32.8 Concluding Remarks......Page 827
32.9 Select Bibliography......Page 828
33.1 Overview......Page 830
33.2 Sciences and Their Roles in Environmental Laws......Page 831
33.3 The Challenges of the Sciences......Page 834
33.4 ‘Kettling’ Science......Page 836
33.5 The Failure to Take Collective Epistemic Responsibility Seriously......Page 842
33.6 The Failure to Take Legal Culture Seriously......Page 844
33.8 Select Bibliography......Page 848
34.1 Overview......Page 850
34.2 Transnational Environmental Networks......Page 853
34.3.1 Introduction......Page 857
34.3.2 Public/Public Networks......Page 858
34.3.3 Public/Private Networks......Page 861
34.3.4 Private/Private Networks......Page 862
34.3.5 Private/Public Networks......Page 865
34.3.6 Hybrid Networks......Page 866
34.4 Transnational Networks in Comparative Environmental Law: Facing the Challenges......Page 867
34.6 Select Bibliography......Page 870
35.1 Overview......Page 871
35.2 The Role of the Judiciary and its Place Within the Context of Value-driven Decision-making......Page 873
35.3 Responses to the Challenges of Environmental Litigation......Page 874
35.4.1 Introduction......Page 877
35.4.2 Jurisdictional Specialization......Page 879
35.4.3 Judicial Specialization......Page 880
35.4.4 Scope and Hierarchy of the Court’s Review......Page 881
35.4.5 Specialist Costs and Standing Rules......Page 883
35.4.6 Access to Legal and Scientific Advice......Page 886
35.4.7 Bespoke Solutions to Environmental Adjudication......Page 887
35.5 Concluding Remarks......Page 888
annex—visual representation of different adjudicative models......Page 889
35.7 Select Bibliography......Page 891
SECTION B: POLICY INSTRUMENTS......Page 892
COMMAND AND CONTROLREGULATION......Page 894
36.1.1 Concept of Environmental Plan......Page 896
36.1.2.1 Emergence of Environmental Plans......Page 897
36.1.2.2 Consolidation of Environmental Plans......Page 900
36.1.3 Theory of Environmental Plans......Page 901
36.2.1 Formulation of National Environmental Plans......Page 903
36.2.2 Areas Covered by National Environmental Plans......Page 905
36.3.1 Implementation Techniques......Page 909
36.3.2 Legal Effects of National Environmental Plans......Page 912
36.4 Concluding Remarks......Page 913
36.5 Select Bibliography......Page 914
37.1 Overview......Page 915
37.2 Definition and Classification......Page 917
37.3 Layers of Law and Governance......Page 919
37.4 Designation......Page 920
37.5.1 Plans......Page 923
37.5.2 Land Ownership and Local Populations......Page 924
37.5.3 Controls on Activity......Page 925
37.5.4 Positive Conservation......Page 927
37.6 Enforcement......Page 928
37.7 Marine Protected Areas......Page 929
37.8 Challenges for the Future......Page 931
37.9 Select Bibliography......Page 932
Chapter 38: Command and Control Standards and Cross-jurisdictional Harmonization......Page 933
38.1 Overview......Page 934
38.2.1 A Working Definition of ‘Command and Control’ Standards......Page 935
38.2.2 The Enduring Significance of ‘Command and Control’ Standards......Page 936
38.2.3 ‘Command and Control’ Standards as Linked to Self-Regulation and Economic Incentives......Page 938
38.2.4 The Implementation Deficit of ‘Command and Control’ Standards......Page 941
38.2.5 The Conceptualization Gap of ‘Command and Control’ Standards......Page 943
38.3.1 Science as Trans-jurisdictional?......Page 945
38.3.2.1 Introduction......Page 947
38.3.2.2 Key Features of DPSIR......Page 948
38.3.3 DPSIR as a Standard Harmonizer?......Page 949
38.3.4 Limitations of DPSIR in Providing an Integrated View of Environmental Risks......Page 952
38.4 Concluding Remarks......Page 955
38.6 Select Bibliography......Page 956
39.1 Overview......Page 957
39.2.1 Domestic Origins and the Global Spread of Environmental Assessment......Page 959
39.2.2 Theory and the Role of Environmental Assessment......Page 962
39.3.1 Application......Page 964
39.3.2 Screening......Page 966
39.3.3 Scoping......Page 968
39.3.4 Participation......Page 971
39.3.5 Decisions......Page 973
39.3.6 Follow-up and Monitoring......Page 975
39.4 Discussion: Convergence and Divergence......Page 976
39.6 Select Bibliography......Page 980
MARKET MECHANISMS......Page 982
Chapter 40: Environmental Taxation......Page 984
40.2 The Theoretical Foundation for Merging Environmental Protection into Taxation......Page 985
40.3 Environmental Taxation Instruments......Page 987
40.4.1 Allocation of Power Among Levels of Government......Page 988
40.4.2 Procedural Aspects......Page 990
40.4.3 International Trade Limitations......Page 991
40.5 Design Features of Environmental Taxation......Page 992
40.5.1 The Choice of Tax System......Page 993
40.5.2 The Choice of Tax Base and Taxable Event......Page 994
40.5.3 The Choice of Tax Rate......Page 995
40.5.4 Examples of the Diversity of Environmentally Related Taxes......Page 996
40.5.5 Use of the Revenue......Page 998
40.5.6 Designing Around Equity and Economic Concerns......Page 999
40.6.1 British Columbia’s Carbon Tax......Page 1000
40.6.2 Ireland’s Carbon Tax......Page 1001
40.6.5 Canada’s National Carbon Pricing Initiative......Page 1002
40.6.6 The European Commission’s Carbon Tax Efforts......Page 1003
40.7 Concluding Remarks: The Role of Environmental Taxation......Page 1004
40.9 Select Bibliography......Page 1005
41.1 Overview......Page 1007
41.2 The Concept of Market Mechanisms in Environmental Law......Page 1010
41.3 Comparative Law Methodologies and Environmental Law Scholarship......Page 1012
41.4 Promotion of Market Mechanisms in Environmental Law Scholarship......Page 1014
41.5.1 Introduction......Page 1017
41.5.2 The EU Emissions Trading Scheme......Page 1020
41.5.3 Chinese Pilot Emission Trading Schemes......Page 1023
41.6 Emissions Trading Schemes, Typologies, and Comparative Environmental Law......Page 1026
41.9 Select Bibliography......Page 1028
INFORMATIONAL TECHNIQUES......Page 1030
Chapter 42: A Cartography of Environmental Education......Page 1032
42.1 Overview: Politicizing Environmental Education......Page 1033
42.2 Environmental Education and Sustainable Development: A Neoliberal Relationship......Page 1037
42.3.1 Approaches Across Countries......Page 1039
42.3.2.1 Background......Page 1041
42.3.2.2 A Cartography of Environmental Education in Australia......Page 1044
42.3.2.3 Climate Change + Me......Page 1045
42.3.3.2 Environmental Policy......Page 1046
42.3.3.3 Bangladesh Education Systems and Environmental Education......Page 1048
42.3.3.4 Rose’s Story......Page 1050
42.6 Select Bibliography......Page 1051
Chapter 43: Informational Requirements and Environmental Protection......Page 1053
43.1 Overview: The Nature of Informational Requirements in Environmental Law......Page 1054
43.2 The State and Informational Requirements......Page 1058
43.3.1 Introduction......Page 1059
43.3.2 Principle 10 in Regional Hard Law......Page 1062
43.3.3 Key Features of the Aarhus and draft ECLAC Conventions (DEC)......Page 1066
43.4.1 State-mandated Information Disclosure......Page 1069
43.4.2 Voluntary Information Disclosure by Companies......Page 1072
43.5 Concluding Remarks: Emerging Informational Concerns in the Age of Information Technology......Page 1074
43.6 Select Bibliography......Page 1076
44.1 Overview......Page 1077
44.2.1 Eco-label Content......Page 1080
44.2.2.1 First-party and Third-party Labels......Page 1085
44.2.2.2 Public Label Governance......Page 1086
44.3.1.1 Labelling Methodology......Page 1089
44.3.1.2 Label Legitimacy......Page 1092
44.3.1.3 Understanding Consumer Behaviour......Page 1095
44.3.2.1 Equity......Page 1097
44.3.2.2 Consumerism and ‘Strong’ Versus ‘Weak’ Sustainability......Page 1100
44.5 Select Bibliography......Page 1102
EX POST INJURY-BASED MECHANISMS......Page 1104
Chapter 45: Environmental Liability......Page 1106
45.1 Overview......Page 1107
45.2.1 International Regimes......Page 1108
45.2.2.1 Fault-based Liability......Page 1110
45.2.2.2.1 civil law......Page 1111
45.2.2.2.2 common law......Page 1112
45.2.2.4 Neighbourhood Law and Nuisance......Page 1113
45.3.1 General Observations......Page 1114
45.3.2 Causation......Page 1115
45.3.3.1 Damage to Persons, Property Damage, and Pure Economic Loss......Page 1117
45.3.3.3 Ecological Harm and Collective Redress......Page 1119
45.3.4 Natural Resource Damage and Administrative Law......Page 1121
45.4 Concluding Remarks......Page 1122
45.5 Select Bibliography......Page 1124
46.1 Overview......Page 1125
46.2 Linking Human Rights and the Environment......Page 1127
46.3 Historical Milestones in the Development of Environmental Human Rights......Page 1131
46.4.1 Substantive Right to a Healthy Environment......Page 1137
46.4.2 Rights of Nature......Page 1140
46.4.3 Procedural Environmental Rights......Page 1143
46.4.4 Substantive Political Environmental Rights......Page 1145
46.4.5 Socio-economic Environmental Rights......Page 1146
46.5 Critiquing Environmental Human Rights......Page 1148
46.6 Concluding Remarks......Page 1150
46.7 Select Bibliography......Page 1151
Part IV: LEGAL CONTEXT......Page 1152
47.1 Introduction......Page 1154
47.2 Policy and Law-Making in the Administrative State......Page 1156
47.3 Constitutional Environmental Norms......Page 1158
47.4 The Inevitable Locality of Environmental Constitutional Rules......Page 1161
47.5 ‘Non-Constitutional’ Points of Interaction......Page 1162
47.6 Structures of Government......Page 1165
47.7 The Impact of Environmental Law on Public and Constitutional Law......Page 1168
47.9 Selected Bibliography......Page 1170
Chapter 48: Environmental Law and Private Law......Page 1172
48.1 Introduction......Page 1173
48.2 What Is Private Law?......Page 1174
48.3 Two Aspects of the Relationship Between Environmental Law and Private Law......Page 1176
48.3.1.1 Agreements Protective of the Environment......Page 1177
48.3.1.2 Private Legal Actions in Respect of Environmental Harm......Page 1179
48.3.1.2.1 Who Can Sue......Page 1180
48.3.1.2.2.1 Suing the State......Page 1181
48.3.1.2.3 Actionable Damage......Page 1182
48.3.1.2.4.1 Other Possible Variants on Fault......Page 1183
48.3.1.2.4.2 Strict Liability......Page 1184
48.3.1.2.4.3 Special Rules in Nuisance/Troubles Anormaux......Page 1185
48.3.1.2.5 Causation......Page 1186
48.3.1.2.5.1 Factual Causation......Page 1187
48.3.1.2.5.2 Legal Causation......Page 1188
48.3.1.2.6 Remedies......Page 1189
48.3.1.2.7 Particular Problems of Climate Change Litigation......Page 1190
48.3.1.3 Refusal to Enforce Environmentally Damaging Agreements......Page 1191
48.3.1.4 Summary......Page 1192
48.3.2 Environmental Law in Private Law......Page 1193
48.3.2.1 Environmental Crimes as the Basis of Private Law Actions......Page 1194
48.3.2.2 Environmental Regulatory Compliance as a Defence in Private Law Actions......Page 1197
48.5 Selected Bibliography......Page 1198
49.1 Introduction......Page 1200
49.2 Mutual Reinforcement......Page 1201
49.2.1 The Purpose of Criminalization......Page 1202
49.2.2 Modes of Interaction......Page 1203
49.2.2.1 One-Step Criminal Offences......Page 1204
49.2.2.2 Two-Step Criminal Offences......Page 1205
49.2.2.4 Sanction of Last Resort and Enforcement Policy......Page 1206
49.2.2.5 Criminal Law as a Substitute for Environmental Standards......Page 1208
49.3 Conflicts......Page 1209
49.3.1 Strict Liability......Page 1210
49.3.2 Risk-Based Regulation......Page 1213
49.3.3 Interpretation......Page 1215
49.3.4 The Harm Principle and Moral Certainty......Page 1216
49.4 Conclusion......Page 1217
49.5 Selected Bibliography......Page 1218
Chapter 50: Environmental Law and Private International Law......Page 1220
50.1.1 General Context......Page 1221
50.1.2 Corporate Social Responsibility as the General Backdrop of the Analysis......Page 1222
50.2.1 ATS Discovered by the CSR Community......Page 1223
50.2.2 Corporate Liability Under ATS and the Setback Under Kiobel......Page 1225
50.2.3 The ‘Touch and Concern’ Test of the USSC in Kiobel......Page 1226
50.2.4 Post-Kiobel Case-law......Page 1227
50.3.1.1 General Jurisdictional Rule: Article 4 of the Jurisdiction Regulation......Page 1229
50.3.1.2 Special Jurisdictional Rule: Article 7(5) Jurisdiction Regulation: Operations Arising Out of a Branch......Page 1233
50.3.1.6 Applicable Law......Page 1234
50.3.2 Applicable Law for Attributability/Duty of Care, and Compliance Strategies......Page 1236
50.3.2.2 Outside of Competition Law......Page 1237
50.3.2.2.2 applicable law for tortious misrepresentation......Page 1238
50.4 Conclusion......Page 1239
50.5 Selected Bibliography......Page 1240
Chapter 51: Environmental Law and Public International Law......Page 1241
51.1 Introduction......Page 1242
51.2 The Domestic-International Divide......Page 1243
51.3.1.1 Dualism Versus Monism......Page 1246
51.3.1.2 Hierarchy of Norms......Page 1247
51.3.1.3 Self-executing and Non-self-executing Law......Page 1248
51.3.2 Techniques of Transposition......Page 1249
51.4 Effects of International Law Within Domestic Law......Page 1250
51.4.1.1 International Treaties......Page 1251
51.4.1.2 Custom......Page 1252
51.4.1.4 Soft Law......Page 1253
51.4.2.1 Direct Effect......Page 1254
51.4.2.2 Interpretation......Page 1255
51.4.2.3 Non-technical Normative Effects......Page 1256
51.4.3.1 State Authorities......Page 1258
51.4.3.2.1 individual rights......Page 1259
51.4.3.2.2 enforcement......Page 1260
51.5 Drivers......Page 1261
51.7 Selected Bibliography......Page 1264
Index......Page 1266

Citation preview

OUP CORRECTED PROOF – FINAL, 05/04/19, SPi

T h e Ox f o r d H a n d b o o k o f

C OM PA R AT I V E E N V I RON M E N TA L L AW

OUP CORRECTED PROOF – FINAL, 05/04/19, SPi

OUP CORRECTED PROOF – FINAL, 05/04/19, SPi

the oxford handbook of

COMPARATIVE ENVIRONMENTAL LAW Edited by

EMMA LEES and

JORGE E. VIÑUALES

1

OUP CORRECTED PROOF – FINAL, 05/04/19, SPi

1 Great Clarendon Street, Oxford, ox2 6dp, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The Several Contributors 2019 The moral rights of the authors have been asserted First Edition published in 2019 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2018962434 ISBN 978–0–19–879095–2 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

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Acknowledgements

The editors of this volume gratefully acknowledge support from the Cambridge Centre for Environment, Energy and Natural Resource Governance (C-EENRG), the Newton Fund (BRIDGE, ESRC grant no ES/N013174/1), the Cambridge Land Economy Advisory Board (CLEAB), and the Department of Land Economy’s C-EENRG Establishment Grant.

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Contents

Table of Casesxiii Table of Legislationxxxv List of Contributorslxxv Abbreviationslxxix

F R A M I NG C OM PA R AT I V E E N V I RON M E N TA L L AW 1. Comparative Environmental Law: Structuring a Field

3

Jorge E. Viñuales

2. Value in Comparative Environmental Law—3D Cartography and Analytical Description

35

Emma Lees

PA RT I C OU N T RY S T U DI E S 3. Australia

59

Douglas Fisher

4. Brazil

82

Antonio Herman Benjamin and Nicholas Bryner

5. Canada

108

Stepan Wood

6. People’s Republic of China

128

Xi Wang

7. The European Union

149

Markus Gehring, Freedom-Kai Phillips, and Emma Lees

8. France Laurent Neyret

171

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viii contents

9. Germany

190

Olaf Dilling and Wolfgang Köck

10. India

212

Bharat H. Desai and Balraj K. Sidhu

11. Indonesia

232

Simon Butt and Prayekti Murharjanti

12. Japan

253

Julius Weitzdörfer and Lucy Lu Reimers

13. Mexico

277

Marisol Anglés Hernández and Montserrat Rovalo Otero

14. Singapore

296

Lye Lin-Heng

15. South Africa

315

Jan Glazewski

16. South Korea

334

Hong Sik Cho and Gina J. Choi

17. United Kingdom

351

Stuart Bell

18. United States of America

374

James Salzman

PA RT I I PROBL E M S 19. Atmospheric Pollution

397

Massimiliano Montini

20. Environmental Regulation of Freshwater

418

Dan Tarlock

21. Land Degradation

438

Ben Boer and Ian Hannam

22. Nature Conservation Agustín García-Ureta

460

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contents ix

23. Regulation of Marine Capture Fisheries

489

Till Markus

24. Genetically Modified Organisms

509

Anne Saab

25. Climate Change and Energy Transition Policies

531

Justin Gundlach and Michael B. Gerrard

26. Regulation of Chemicals

578

Lucas Bergkamp and Adam Abelkop

27. Waste Regulation

607

Natalie Jones and Geert van Calster

28. Contaminated Sites

626

Emma Lees

PA RT I I I S YS T E M S A. Infrastructure 29. Environmental Principles Across Jurisdictions: Legal Connectors and Catalysts

651

Eloise Scotford

30. Distribution of Powers

678

Moritz Reese

31. Property Systems and Environmental Regulation

703

Christopher P. Rodgers

32. Regulatory Organization

719

Brian Preston

33. Sciences, Environmental Laws, and Legal Cultures: Fostering Collective Epistemic Responsibility

749

Elizabeth Fisher

34. Transnational Networks

769

Veerle Heyvaert

35. Adjudication Systems Emma Lees

790

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x contents

B. Policy Instruments Command and Control Regulation 36. Environmental Planning

815

Jin Wang

37. Protection of Sites

834

Colin T. Reid

38. Command and Control Standards and Cross-jurisdictional Harmonization852 Bettina Lange

39. The Assessment of Environmental Impact

876

Neil Craik

Market Mechanisms 40. Environmental Taxation

903

Janet Milne

41. Trading Schemes

926

Sanja Bogojević

Informational Techniques 42. A Cartography of Environmental Education

951

Amy Cutter-Mackenzie-Knowles, Marianne Logan, Ferdousi Khatun, and Karen Malone

43. Informational Requirements and Environmental Protection

972

Karen Morrow

44. Eco-labelling

996

Jason Czarnezki, Margot Pollans, and Sarah M. Main

Ex Post Injury-based Mechanisms 45. Environmental Liability

1025

Monika Hinteregger

46. A Cartography of Environmental Human Rights Louis J. Kotzé and Erin Daly

1044

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contents xi

PA RT I V L E G A L C ON T E X T 47. Environmental Law and Constitutional and Public Law

1073

Ole W. Pedersen

48. Environmental Law and Private Law

1091

David Howarth

49. Environmental Law and Criminal Law

1119

Emma Lees

50. Environmental Law and Private International Law

1139

Geert van Calster

51. Environmental Law and Public International Law

1160

Leslie-Anne Duvic-Paoli

Index

1185

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Table of Cases International Cases European Court of Human Rights Guerra v Italy (1998) 26 EHRR 357 ��355, 980 Hatton v United Kingdom (2002) 34 EHRR 1; (2003) 37 EHRR 28�� 355 Lopez Ostra v Spain (1994) 20 EHRR 277�� 355 Powell and Rayner v United Kingdom (1990) 12 EHRR 355�� 355 Sporrong and Lönnroth v Sweden, 23 September 1982, Judgment of the ECtHR, app. no.7151/757152/75�� 436

Inter-American Commission on Human Rights PM 382/10—Indigenous Communities of the Xingu River Basin, Pará, Brazil�� 93

Inter-American Court of Human Rights Advisory Opinion OC-23/17 Requested by the Republic of Columbia, Inter-Am. Ct. H.R., 15 November 2017�� 892 Claude Reyes et al. v Chile, Inter-Am. Ct. H.R. Iser. C, No 151 (19 September 2006)��980 Maya Indigenous Community of the Toledo District v Belize, Case 12.053, Report no. 40/04, OEA/SerL/V/II.122 Doc 5 rev 1 at 727 (2004)�� 1080 Saramaka People v Suriname, Series. C No. 172 Inter-Am. Ct. H.R. (2007) �� 892 Saramaka People v Suriname, Judgment of 12 August 2008. Series C no. 185�� 1080

International Court of Justice Pulp Mills (Argentina v Uruguay) [2010] ICJ Rep 14�� 653, 880 Whaling in the Antarctic (Australia v Japan: New Zealand intervening) 2014�� 507

Inter-State Arbitration In the matter of the Indus Waters Kishenganga Arbitration before the Court of Arbitration constituted in accordance with the Indus Waters Treaty 1960 between the Government of India and the Government of Pakistan signed on 19 September 1960 (Islamic Republic of Pakistan v Republic of India), PCA, Partial Award (18 February 2013), Final Award (20 December 2014)��432 Iron Rhine Arbitration, Belgium/Netherlands, Award, ICGJ 373 (PCA 2005)��655 Jurisdiction of the Courts of Danzig, Advisory Opinion, (1928) P.C.I.J., Ser. B, No. 15�� 1179 Lake Lanoux Arbitration (Spain/France), Award (16 November 1957), RIAA vol. XII��432

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xiv table of cases Trail Smelter Arbitration (United States v Canada), Ad Hoc International Arbitral Tribunal, 1941 3 U.N. Rep. Int. Arb. Awards 1911. 1938, reprinted in (1941) 35 American Journal of International Law 684��399, 400–1

World Trade Organisation Dispute Settlement Body EC- Biotech, Dispute Settlement: Dispute DS291 European Communities—Measures Affecting the Approval and Marketing of Biotech Products�� 516–17 EC-Hormones, Dispute Settlement: Dispute DS26 European Communities—Measures Concerning Meat and Meat Products (Hormones)��516–17, 865 US—Taxes on Automobiles, DS31/R (11 October 1994) �� 911 US—Taxes on Petroleum and Certain Imported Substances, L/6175–34S/136 (17 June 1987) �� 911

Domestic Cases Australia Allen v United Carpet Mills Pty Ltd [1989] Victorian Reports 323��66 Attorney-General (NSW) v Quin (1990) 170 CLR 1 �� 730 Australian Conservation Foundation Inc v Commonwealth (1980) 146 Commonwealth Law Reports 493�� 79 Australian Conservation Council v Latrobe City Council (2004) 140 Local Government and Environmental Reports of Australia 100�� 72 Axer Pty Ltd v Environment Protection Authority (1993) 113 Local Government and Environmental Reports of Australia 357�� 78 Bentley v BGB Properties Pty Ltd (2006) 145 Local Government and Environmental Reports of Australia 234�� 76, 78 BGP Properties v Lake Macquarie CC [2004] NSWLEC 399; (2004) 138 LGERA 237 [108]��664 Booth v Bosworth and Bosworth, Primary decision, (2001) 114 FCR 39, (2001) 117 LGERA 168, [2001] FCA 1453, ILDC 531 (AU 2001)��1173, 1175 Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure [2013] New South Land and Environment Court 48; 194 LGERA 347�� 75, 731 Carstens v Pittwater Council (1999) 111 Local Government and Environmental Reports of Australia, 25�� 68 Commonwealth v Tasmania (1983) 158 Commonwealth Law Reports 1��61, 62, 75, 143, 428, 435, 1177 Director of Animal and Plant Quarantine v Australian Pork Limited [2005] FCAFC 206�� 762 Drake v Minister for Immigration and Ethnic Affairs (No 1) (1979) 24 ALR 577�� 730 Environment Protection Authority v Ross (2009) 165 Local Government and Environmental Reports of Australia 42 �� 78 Gippsland Coastal Board v South Gippsland Shire Council (No 2) [2008] Victorian Civil and Administrative Tribunal 1545 �� 73, 731 Greenpeace Australia v Redbank Power Company and Singleton Council, Decision on development application, [1994] NSWLEC 178, ILDC 985 (AU 1994), 10 November 1994, Oxford Reports on International Law �� 1180 Hub Action Group Inc v Minister for Planning (2008) 161 LGERA 136��731, 733

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table of cases xv Leatch v Director General of National Parks and Wildlife Service (1993) 81 LGERA 270 ��657, 1176 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24�� 730 Minister for Immigration and Ethnic Affairs v Teoh, (1995) 182 CLR 273�� 1178 Murphyores Inc Pty Ltd v Commonwealth (1976) 136 Commonwealth Law Reports 1�� 61–2 Myers v South Gippsland Shire Council (No 1) [2009] VCAT 1022 and (No 2) [2009] VCAT 2414�� 731 Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council (2010) 210 LGERA 126 �� 731 Newton v Great Lakes Shire Council [2013] NSWLEC 1248 �� 731 North Coast Environment Council Inc v Minister for Resources (1994) 55 Federal Court Reports 492�� 79 Northcape Properties Pty Ltd v District Council of Yorke Peninsula [2007] SAERDC 50 (upheld on appeal: [2008] SASC 57�� 731 Onus v Alcoa of Australia Ltd (1982) 149 Commonwealth Law Reports 27�� 79 Rainbow Shores Pty Ltd v Gympie Regional Council [2013] QPEC 26 �� 731 Taralga Landscape Guardians Inc v Minister for Planning (2007) 161 Local Government and Environmental Reports of Australia 1�� 72–3 Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256�� 664–5, 676, 731 Warringah Shire Council v Sedevcic (1987) 10 New South Wales Law Reports 335�� 79

Austria Township of Freilassing and Max Aicher v Austrian Federal Ministry of Transport and State-Owned Enterprises, 10 October 1969, (1969) 24 Erkenntnisse und Beschlüsse des Verwaltungsgerichtshofs 681�� 1178

Bangladesh Farooque v Government of Bangladesh, 17 B.L.D. (A.D.) 1 (1997) �� 1164 Farooque v Government of Bangladesh (2002) 22 BLD 345 Supreme Court of Bangladesh.

Belgium Petition, VZW Klimaatzaak v Kingdom of Belgium, Tribunal of First Instance, Brussels, filed 4 December 2014 �� 544

Botswana Mosetlhanyane and Others v Attorney General of Botswana, Civil Appeal No. CACLB-074–10 (Court of Appeal in Lobatse, 27 Janury 2011)��1065

Brazil AgRg no REsp 1434797/PR, Relator. Ministro Humberto Martins, Segunda Turma, DJe 07 June 2016 �� 94 Lei Complementar No. 140, Art. 9; Estatuto da Cidade, Lei No. 10.257, de 10 de julho de 2001 ��85 S.T.F., MS 22,164/SP, Relator: Min. Celso de Mello, en banc, DJ 17 November 1995�� 87

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xvi table of cases S.T.J., REsp No. 222.349/PR, 1st Panel, Relator: Min. José Delgado, 23 March 2000, DJ 02 May 2000��103 S.T.J., REsp No. 343.741/PR, 2d Panel, Relator: Min. Franciulli Netto, 07 October 2002 (7 October 2002) S.T.J., REsp 578.797/RS, 1st Panel, Relator: Min. Luiz Fux DJ 20 September 2004, 196 ��103 S.T.J., RMS 18.301/MG, 2d Panel, Relator: Min. João Otávio de Noronha, DJ 03 October 2005�� 94, 95 S.T.J., REsp 605,323/MG, 1st Panel, Relator: Min. Teori Zavascki, DJ 17 October 2005��90 S.T.J., REsp 647.493/SC, 2d Panel, Relator: Min. João Otávio de Noronha DJ 22 October 2007�� 104 STJ, 1863/PR, decision of 18 February 2009 ��675 S.T.J., REsp 1,049,822/RS, 1st Panel, Relator: Min. Francisco Falcão, DJe 18 May 2009��91 STJ, Resp no 972.902–RS(2007/0175882–0), decision of 25 August 2009��675 S.T.J., REsp No. 948.921/SP, 2d Panel, Relator: Min. Herman Benjamin, 23 October 2007, DJe 11 November 2009 ��103 S.T.J., REsp No. 508.377/MS, 2d Panel, Relator: Min. João Otávio de Noronha, 23 October 2007, DJe. 11.11.2009 ��85 S.T.J., REsp No. 2007. 948.921/SP, 2d Panel, Relator: Min. Antonio Herman Benjamin, 23 November 2007 (11 November 2009)�� 94 S.T.J., REsp No. 650.728, 2d Panel, Relator: Min. Herman Benjamin, 23 October 2007, DJe 02 December 2009��103 S.T.J., REsp 1,060,753/SP, 2d Panel, Relatora: Min. Eliana Calmon, DJe 14 December 2009��91 S.T.F., MS 25284/DF, Relator: Min. Marco Aurélio, en banc, DJe 12 August 2010�� 88 S.T.J., REsp 1.222.723/SC, 2d Panel, Relator: Min. Mauro Campbell Marques, DJe 17 November 2011�� 104 STJ, Resp n 1330027/SP, 3a turma, decision of 11 June 2012�� 674 Supremo Tribunal Federal, Medida Cautelar na Reclamação 14.404/DF, Min. Ayres Britto, 27 de agosto de 2012 �� 93 S.T.J., REsp No. 1.145.083/MG, 2d Panel, Relator: Min. Herman Benjamin, 27 September 2011, DJe 04 September 2012�� 104 S.T.J., REsp No. 1.240.122/PR, at 7–9, 2d Panel, Rel. Min. Antonio Herman Benjamin, 28.06.2009, D.Je. 11 September 2012�� 88 S.T.F., RE 417.408 AgR/RJ, 1st Panel, Relator: Min. Dias Toffoli, DJe 26 April 2012 ��102 S.T.J., REsp No. 1.367.923/RJ, 2d Panel, Relator: Min. Humberto Martins, 27 August 2013, DJe 06 September 2013�� 104 S.T.J., REsp 1.394.025/MS, 2d Panel, Relatora: Min. Eliana Calmon, DJe 18 October 2013�� 104 S.T.J., AgRg no REsp 1,313,443/MG, 2d Panel, Relator: Min. Og Fernandes, Segunda Turma, DJe 12 March 2014�� 94 STJ, Resp 1172553/PR, 1a Turma, decision of 27 May 2014 ��675 STF, Recurso Extraordinário n 737.977/SP, decision of 4 September 2014��675 S.T.J., AgRg no AREsp 739.253/SC, 2d Panel, Relator: Min. Humberto Martins, DJe 14.09.2015 �� 100 S.T.J., REsp 1.276.114/MG, 2d Panel, Relator: Min. Og Fernandes, DJe 11 October 2016 �� 95 S.T.F., RE No. 633, 548 AgR/GO, 2d Panel, Relator: Min. Edson Fachin, DJe 11 April 2017��85 S.T.J., AgInt no AREsp 1,090,084/MG, 2d Panel, Relatora: Min. Assusete Magalhães, DJe 28 November 2017 ��91 S.T.F., ADIn No. 4901, Opinion of Min. Celso de Mello, 28 February 2018�� 95 TRF 1a região, Apelação cível n 2001.34.00.010329–1/DF, decision of 12 February 2004 ��675 TRF 2, Agravo de instrumento 0004075–70.2012.4.02.0000, 5a turma, decision of 31 juil 2012)��675

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table of cases xvii Canada 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town), 2001 SCC 40�� 113, 120, 1173 611428 Ontario Ltd v Metropolitan Toronto and Region Conservation Authority (1996) OJ No. 1392�� 1176 Bank of Montreal v Hall [1990] 1 SCR 121�� 112 Bolton v Forest Pest Management Institute, 1985 CanLII 579 (BCCA)�� 121 British Columbia v Canadian Forest Products Ltd, 2004 SCC 38�� 119 Burns Bog Conservation Society v Canada (Attorney General), 2012 FC 1024, aff ’d 2014 FCA 170�� 119 Calder v British Columbia (Attorney General) [1973] SCR 313�� 110 Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45�� 125 Canada (Attorney General) v MacQueen, 2013 NSCA 143�� 119, 122 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town), [2001] 2 S.C.R. 241, 2001 S, �� 1164 Canadian Council of Ministers of the Environment, Inspections and Enforcement Sub-Agreement (2001) �� 125 Canadian Parks and Wilderness Society v Canada (Minister of Canadian Heritage), 2003 FCA 197�� 121 Castonguay Blasting Ltd v Ontario (Environment), 2013 SCC 52�� 121 Centre Québécois du droit de l’environnement v Canada (Environment), 2015 FC 773 �� 121 Ciment du St-Laurent inc. c. Barrette, 2006 QCCA 1437�� 118 Clements v Clements, 2012 SCC 32�� 121 Croplife Canada v City of Toronto (2005) 75 OR (3d) 357 (CA)�� 113 Daishowa Inc v Friends of the Lubicon (1998) 158 DLR (4th) 699 (Ont Gen Div)�� 119 Delgamuukw v British Columbia [1997] 3 SCR 1010�� 110 Eng v Toronto (City), 2012 ONSC 6818�� 113 Environnement Jeunesse v Canada (Attorney General), Que. Super. Ct. (motion for authorization to commence class action and for appointment as class representative filed 26 November 2018)�� 113 Finlay v Canada (Minister of Finance) [1986] 2 SCR 607�� 125 Fletcher v Kingston (City) (2004) 70 O.R. (3d) 577 (CA)�� 126 Fowler v The Queen [1980] 2 SCR 213�� 112 Fraser v Saanich (District) (1999) 32 CELR (NS) 143 (BCSC)�� 119 Friends of the Oldman River Society v Canada (Minister of Transport) [1992] 1 SCR 3�� 111, 112 Friends of the West Country Assn. v Canada (Minister of Fisheries and Oceans), [2000] 2 F.C. 263 (C.A.)�� 888 Georgia Strait Alliance v Canada (Fisheries and Oceans), 2012 FCA 40�� 125 Grant v Torstar Corp, 2009 SCC 61�� 119 Hollick v Toronto (City), 2001 SCC 68�� 119 Hydro-Québec [1997] 3 SCR 213�� 112, 113, 541 Imperial Oil Ltd v Quebec (Minister of the Environment), 2003 SCC 38�� 120, 426 Incredible Electronics Inc. v Canada (Attorney General) (2006) 80 OR (3d) 723 (SCJ)�� 125 Lafarge Canada Inc. v Ontario (Environmental Review Tribunal), 2008 CanLII 30290 (Ont. Div. Ct.) �� 122 MacMillan Bloedel v Joan Russow and Betty Kleimanet al, 6 December 1994, VI 01984 MiningWatch Canada v Canada (Minister of Fisheries and Oceans), 2010 SCC 2 888��1171 Morton v Canada (Fisheries and Oceans), 2015 FC 575 �� 121 Multiple Access Ltd v McCutcheon [1982] 2 SCR 161�� 112 Northwest Falling Contractors Ltd v The Queen [1980] 2 SCR 292 �� 112

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xviii table of cases Ontario Power Generation Inc. v. Greenpeace Canada, 2015 FCA 186�� 896 Palmer v Nova Scotia Forest Industries [1983] N.S.J. No. 534, 60 N.S.R.(2d) 271 (TD) �� 121 Pembina Institute for Appropriate Development v Canada [2008] F.C. 302 (F.C.T.D)�� 889, 895 Podolsky v Cadillac Fairview Corp., 2013 ONCJ 65 �� 126 Prairie Acid Rain Coalition v Canada (Minister of Fisheries and Oceans), 2006 FCA 31. �� 888 Québec (Ville de) c. Équipements Emu ltée, 2015 QCCA 1344�� 118 R. v Bata Industries Ltd, (1992) 9 OR (3d) 329�� 125 R v City of Sault Ste Marie (1978) 40 CCC (2d) 353 (SCC)�� 1130 R. v Crown Zellerbach Canada Ltd [1988] 1 SCR 401�� 112, 1178 R. v Hydro-Québec [1997] 3 SCR 213�� 112 R. v Marshall [1999] 3 SCR 456�� 110 R. v Sault Ste. Marie [1978] 2 SCR 1299�� 125 R v Sharma [1993] 1 SCR 650 ��113 R. v Syncrude Canada Ltd, 2010 ABPC 229��126 R v United Keno Hill Mines Ltd (1980) 1 Yukon Rep. 299, para. 10 (Territorial Court)��124 Resurfice Corp. v Hanke, 2007 SCC 7�� 119, 121 Rothmans, Benson & Hedges Inc. v Saskatchewan, 2005 SCC 13�� 112 St Lawrence Cement Inc. v Barrette, 2008 SCC 64�� 119, 120 Shell Canada Products Ltd v Vancouver (City) [1994] 1 SCR 231 �� 113 Smith v Inco Ltd, 2011 ONCA 628�� 119 Smith v Inco Ltd, 2013 ONCA 724�� 118 Spraytech v Hudson, 2001 SCC 40��113 Susan Heyes Inc v Vancouver (City), 2011 BCCA 77�� 118 Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74�� 892 Tsilhqot’in Nation v British Columbia, 2014 SCC 44 ��110, 111 Wier v Canada (Health), 2011 FC 1322�� 121 Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108 �� 119

China CBCGDF v Volkswagen, https://www.chinadialogue.net/article/show/single/en/ 7790–China-court-to-hear-3–m-yuanair-pollution-lawsuit�� 416 Friends of Nature v Hyundai, https://www.chinadialogue.net/article/show/single/ en/7790–China-court-to-hear-3–m-yuanair-pollution-lawsuit�� 416 Guiyang Two Lakes and One Reservoir Management Bureau v Guizhou Tianfeng Chemical Ltd, (Qingzhen Envtl Ct., 27 December 2007) (PRC) �� 141

Colombia Colombia, Constitutional Court, Law 1021 of 2006 (General Foresting Law), Re, García Guzmán and ors, Application for Constitutional Review, Decision No C-030–08, ILDC 1010 (CO 2008), 23 January 2008�� 1167 T-622 de 2016 Referencia: Expendiente T-5.016.242��1061

Cyprus Community of Pyrga through the President of the Community and the local authority of Pyrga and ors v Republic of Cyprus through the Council of Ministers and ors, Interim decision, Case no 671/1991, ILDC1790 (CY 1991)��1175

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table of cases xix Dominican Republic Supreme Court of Justice, Pleno, Sentencia del 9 de febrero de 2005, No 4, Juventud Nacional Comprometida, Inc and ors v Dominican Republic, Cordero Gómez (intervening) and ors (intervening), Direct constitutional complaint procedure, BJ 1131.34, ILDC 1095 (DO 2005), 9 February 2005, Oxford Reports on International Law�� 1167, 1173

European Union Administration des douanes v Société anonyme Gondrand Frères and Société anonyme Garancini, C-169/80 [1981] ECR 1931 ��801 Agrarproduktion Staebelow v Landrat des Landkreises Bad Doberan, Case C-504/04 [2006] ECR I-679��671 Air Transport Association of America, American Airlines Inc., Continental Airlines Inc., United Airlines Inc. v Secretary of State for Energy and Climate Change CJEU, Case C-366/10, 21 December 2011, ECR I-13755��162, 934 Algera v Common Assembly, CJEU (Joined cases 7/56 and 3 to 7/57), 12 July 1957��164–5 Arcelor Atlantique et Lorraine and Others, C-127/07 [2008] ECR I-09895�� 940, 945–6 ArcelorMittal Rodanga et Schifflange SA, Case C-321/15, ECLI:EU:C:2017:179�� 931 ARCO Chemie Nederland Ltd v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer and Vereniging Dorpsbelang Hees, Stichting Werkgroep Weurt and Vereniging Stedelijk Leefmilieu Nijmegen v Directeur van de dienst Milieu en Water van de provincie Gelderland, Joined cases C-418/97 and C-419/97 [2000] ECR I-04475��155, 1123 Austin and others v The United Kingdom—39692/09 [2012] ECHR 459 (15 March 2012) �� 755, 760 AvestaPolarit Chrome Oy, C-114/01 [2003] ECR I-8725�� 155 Bilbaína de Alquitranes SA and Others v ECHA, C-287/13P ECLI:EU:C:2014:599 �� 780 Brasserie du Pêcheur SA v Federal Republic of German and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and Others, CJEU, (Joined cases C-46/93 and C-48/93), 5 March 1996 ��165 BUND v Arnsberg, C-115/09, ECJ, Judgment of 12 May 2011, EU:C:2011:289��192, 207 Bund Naturschutz in Bayern eV and Others v Freistaat Bayern, Case C-244/05 [2006] ECR I-8445��841 Cassis de Dijon, C-120/78, ECJ, Judgment of 20 February 1979, EU:C:1879:42. 39 �� 196, 694 ClientEarth v The Secretary of State for the Environment, Food and Rural Affairs, Case C-404/13, Judgment of 19 November 2014��360, 415 Commission of the European Communities v Council of the European Union, CJEU, 13 September 2005, Case C-176/03��167, 168 Commission v Austria, case C-507/04 (ECLI:EU:C:2007:42)�� 475 Commission v Belgium (Walloon Waste), Case C-2/90 [1992] ECR I-4431��671 Commission v Denmark, ECJ, Judgment of 20 September 1988, C-302/86, EU:C:1988:421��196 Commission v Estonia, Case C-505/09 [2012]��941 Commission of the European Communities v European Parliament and Council of the European Union, CJEU, 8 September 2009, Case C-411/06��167 Commission v Finland, case C-240/00, (ECLI:EU:C:2003:126)�� 475 Commission v France, Case 252/85, (ECLI:EU:C:1988:202)�� 475 Commission v France, Case C-383/09, (ECLI:EU:C:2011:23) �� 473 Commission v Germany, C-463/01, EU:C:2004:797�� 204

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xx table of cases Commission v Germany, Case C-142/16, (ECLI:EU:C:2017:301) �� 473 Commission v Greece, Case C-103/00 �� 479 Commission v Ireland, Case C-418/04, (ECLI:EU:C:2007:780)��471 Commission of the European Communities v Kingdom of Spain, CJEU, 2 August 1993, Case C-355/90��167 Commission v Luxembourg, C-458/0 (EU:C:2003:94) Judgment of 27 February 2002, ASA, C-6/00, EU:C:2002:121�� 203 Commission v Malta, Case C-76/08, (ECLI:EU:C:2009:535) �� 479 Commission v Poland, CJEU, 17 April 2018, Case C-441/17�� 168–9 Commission v Spain, Case C-355/90, (ECLI:EU:C:1993:229) ��471 Commission v Spain, Case C-79/03, (ECLI:EU:C:2004:507)�� 479 Commission v Spain, Case C-135/04, (ECLI:EU:C:2005:374)�� 479 Commission v Spain, Case C-235/04 (ECLI:EU:C:2007:386)�� 471, 840 Commission v Spain, Case C-186/06 [2007] ECR I-12,093��840 Commission v Spain, Case C-308/08, (ECLI:EU:C:2010:281)�� 473 Commission v Spain, Case C-404/09, (ECLI:EU:C:2011:768)�� 472 Commission of the European Communities v United Kingdom, CJEU, 20 October 2005, Case C-6/04�� 168, 364, 849 Consorzio del Prosciutto di Parma and Salumificio S. Rita SpA v Asda Stores Ltd and Hygrade Foods Ltd, C-108/01 [2003] ECR I-05121��801 Council v Stichting Natuur en Milieu and Pesticide Action Network Europe, Joined Cases C-404/12 P and C-405/12 P, EU:C:2015:5�� 166 Council v Vereniging Milieudefensie and others, Joined Cases C-401/12 P to C-403/12 P EU:C:2015:4 �� 166 Council of the European Union and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, C-401/12P to C-403/12P�� 803 Criminal proceedings against Bluhme, Case C-67/97 (ECLI:EU:C:1998:584)��480 Criminal proceedings against G. Vessoso and G. Zanetti, C-207/88 [1990] ECR I-01461��1123 Dassonville, Case C-8/74, ECR 1974, 837��694 Dieter Janecek v Freistaat Bayern (Jacenek case), Case C-237/07, Judgment of 25 July 2008 ENI, Case T-39/07, and C-508/11 P, ECLI:EU:C:2013:289�� 1156 Estonia v Commission, Case T-263/07, [2009] ECR II-03395��940 Euro Tombesi, Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95, [1997] 415, ECR I-3561 ��613 European Commission v UK, Case C-530/11, [2014] Environmental Law Reports D2 �� 370 France v Commission, Case T-257/07 [2011] ECR II-05827��671, 672 Godefridus van der Feesten, Case C-202/94, (ECLI:EU:C:1996:39)�� 476 Inter-Environnement Wallonie v Regione Wallone, Case C-126/96 [1997] ECR I-7411��155, 613 Keck, Joined Cases C-267/91 and C-268/91, ECR 1993, I-06097��694 Kledingverkoopbedrijf de Geus en Uitdenbogerd v Robert Bosch GmbH and Maatschappij tot voortzetting van de zaken der Firma Willem van Rijn, 13/61, [1962] ECR 00045, 52 ��801 KVZ Retec GmbH v Republik Osterreich, C-176/05 [2007] ECR I-1721�� 155 Land Oberösterreich v ČEZ, ECJ, Judgment of 27 October 2009, C-115/08, EU:C:2009:660��206 Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris Van Landbouw, Natuurbeheer en Visserij (Waddenzee) [C-127/02] ECLI:EU:C:2004:482; [2004] ECR I-7405��161, 671 Mines de Potasse d’Alsace, Case 21/76, [1976] ECR 1735��1153 Nomarchiaki Aftodioikisi Aitoloakarnanias v Ypourgos Perivallontos, Case C-43/10, (ECLI:EU:C:2011:651) �� 473

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table of cases xxi Opinion of the Court, CJEU, 6 December 2001, Avis 2/00, 2001 I-09713��167 Owusu, Case -281/02 �� 1149 Palin Granit Oy v Vemassalon kansanterveystoyn kuntaaghtyman halitus, C-90/00 [2002] ECR I-3533�� 155 Peralta, Re, Case C-379/92 [1994] ECR I-3453 �� 670 Peter Sweetman and Others v An Bord Pleanála, C-258/11, ECLI:EU:C:2013:220; [2015] Env LR 18�� 161 Pfizer Animal Health v Council of the European Union, Case T-13/99, [2002] ECR 11–330��155, 671, 762 Plaumann v Commission, Case 25/62, [1963] ECR 95 ��165, 803 Poland v Commission, Case T- 183/07 [2009] ECR-03395��941 Polyelectrolyte Producers Group and Others v European Commission, C-199/13P ECLI:EU:C:2014:205�� 780 Procureur de la République v Association de Défense des Brûleurs d’Huiles Usagées, Case 240/83, CJEU, 7 February 1985,�� 166–7 ECLI:EU:C:2014:2174�� 780 Queen v Ministry of Agriculture, Fisheries and Food: ex parte: Hedley Lomas (Ireland) Ltd, Case C5/94, CJEU, 22 May 1996,��168 Queen on the application of International Association of Independent Tanker Owners (Intertanko), International Association of Dry Cargo Shipowners (Intercargo), Greek Shipping Co-operation Committee, Lloyd’s Register, International Salvage Union v Secretary of State for Transport, ECJ (Grand Chamber), , Preliminary Ruling, 3 June 2008�� 1179 R v Secretary of State for the Environment, Transport and the Regions, ex parte First Corporate Shipping Ltd, Case C-371/98 [2000] ECR I-9253��840 Radlberger, ECJ, C-309/02, EU:C:2004:799; Judgment of 14 December 2004�� 204 Raffinerie Mediterranee (ERG) SpA v Ministero dello Sviluppo Economico, C-378/08, [2010] ECR I-01919�� 154 Republic of Poland v European Parliament and Council of the European Union, Case C-5/16 ECLI:EU:C:2018:483 ��853, 942 Romkes v Officier van Justitie, Case 46/86 [1987] ECR ��503 Rütgers Germany GmbH and Others v European Chemicals Agency, Case C-190/13P (ECHA) Skoma-Lux sro v Celní ředitelství Olomouc, C-161/06 [2007] ECR I-10841 ��801 Società Italiana Dragaggi SpA and Others v Ministero delle Infrastrutture e dei Trasporti and Regione Autonoma Friuli Venezia Giulia, Case C-117/03 [2005] ECR I-167 �� 840, 841 Somafer, Case 33/78, [1979] ECR 2183��1152 Stichting Greenpeace Council and others v Commission, C- 321/95P [1998] ECR I- 1651 and C- 50/00P Uniǒn de Pequeños Agricultores v Council [2002] ECR I- 6677 �� 803 Stichting ROM-projecten v Staatssecretaris van Economische Zaken, C-158/06 [2007] ECR I-05103��801 Sweden v Commission, Case T-229/04 [2007] ECR II-2437) �� 672 Taskin and Others v Turkey [2004] ECHR 621�� 892 TC Briels and Others v Minister van Infrastructuur en Milieu, C-521/12, ECLI:EU:C:2014:330; [2014]�� 161 Uniplex (UK) Ltd v NHS Business Services Authority, Case C-406/08�� 370 Van de Walle & Ors, C-1/03 [2005] Env. L.R. 24�� 155 Wallonie, ECJ, C-228/00, EU:C:2003:91; Judgment of 13 February 2003 �� 203

Finland Geological Survey of Finland, 31 March 1999, 31.9.1999/692 KHO:1999:14, ILDC 930 (FI 1999) ��1174

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xxii table of cases France Association citoyenne intercommunale des populations concernées par le projet d’aérodrome de Notre-Dame-des-Landes, Conseil d’Etat, no. 267287, Rec. Lebon, 28 December 2005�� 1179 Compagnie Nouvelle du Gaz de Deville-Lès-Rouen, Conseil d’Etat 10 January 1902�� 1111 Société Chimique, Conseil d’Etat 8 November 1957�� 1111 Conseil d’Etat, Decision No. 108243 (Nicolo), 20 October 1989, on the interpretation of Art. 55 Constitution �� 1166 Société Smurfit Kappa Papier Conseil d’Etat, 17 February 2016��1097 Cons. Const. 19 juin 2008, n° 2008–54. 4�� 174 Cons. Const., 8 avril 2011, n° 2011–116�� 174, 181 Cons. Const., 10 novembre 2017, n° 2017–672 �� 174 CA Paris, 30 March 2010, no. 08–02278��1038 Cour de cassation, Administration des Douanes v Société Jacques Vabre, Judgment of 24 May 1975 �� 1166 Cour de Versailles, 4 février 2009 �� 182, 188 CE 24 juillet 2009, n° 316013, Société BASF Agro��182 CE, 10 juin 2015, n° 369428��178 CE, 12 juillet 2017, Association Les amis de la Terre France, n° 394254��178 CE, 8 décembre 2017, n° 404391�� 175 HR 9 October 1992, NJ 1994, 535 ��1034 Litzinger Cass. Civ. 2e, 5 June 1957�� 1107 Société la clinique Bouchard Cass. Civ. 1re, 21 May 1996�� 1103 Société Calcialiment Cass. Civ. 2e 14 June 2007��1116 Cass.civ. 1, 24 September 2009, no 08–16305��1034 Cass.civ.1, 28 January 2010, no 08–18837��1034 Cass. crim., 3 mai 2011, n° 10–81.529 ��182 Cass. 3e civ., 18 mai 2011, n° 10–17.645��182 Cass. 3e civ., 13 décembre 2011, n° 10–27.305��179 Cass. crim. 25 septembre 2012, n° 10–82.938��175, 181, 183, 188, 1038 Cass. Crim. 22 mars 2016, n° 13–87.650�� 183, 185, 1038

Tribunal des conflits 4 mai 2012, n° 12–03.844, n° 12–03.846, n° 12–03.848, n° 12–03.850, n° 12–03.852, n° 12–03.852 �� 183

Germany Federal Court Decision, 1 BvR 242/91 and 315/99 (16 February 2000)�� 639 BVerwGE 55, 250��191, 192 BVerwGE 58, 300�� 207 BVerwGE 72, 300��191, 199 BVerwGE 75, 285, ILDC 2434 (DE 1986)�� 1162, 1178, 1182 BVerwGE 109, 29 �� 191 BVerfGE 111, 37��194 BVerwGE 111, 241�� 203 BVerwGE 119, 329��199 BVerwGE 123, 247�� 203 BVerfGE 128, 1��192 BVerfGE 134, 366–438 ��209

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table of cases xxiii BVerwGE 147, 31��192 BVerfG (1996) Neue Juristische Wochenschrift 651�� 193 BVerfG (2002) Deutsches Verwaltungsblatt 614 �� 193 BVerwG Case 4 C 4/02 (13 March 2003) (2003) 22 Neue Zeitschrift für Verwaltungsrecht 738 �� 1180 BVerG, Case 2 BvR 2365/09 (4 May 2011) (2011) 218 Entscheidungen des Bundesverfassungsgerichts 326�� 1182 BVerwG Case 7 C 7.10 (14 July 2011) (2011) 22 Zeitschrift für Umweltrecht 538 ��1174 BGHZ 118, 312��1037 OVG Hamburg Case 1 Bf 162/04 (30 September 2004) (2004) 16 Zeitschrift für Umweltrecht 208��1174 OVG Koblenz Case 1 A 10200/09 (28 October 2009) (2009) 23 Neue Zeitschrift für Verwaltungsrecht Rechtsprechungs-Report 310��1173 OVG Sachsen, Beschluss vom 09.03.2007—4 BS 216/06, Dresden v Saxony, Complaint, 4 BS 216/06, (2007) Die Öffentliche Verwaltung 2007, 564, ILDC 2764 (DE 2007), 9 March 2007��1173

Greece Greek Supreme Court (Full Bench) 17/1999, N.o.B. 2000, 461–4 ��1037

India AP Pollution Control Board v Nayudu AIR 1999 SC 8�� 665 A.P. Pollution Control Bd. (II) v Nayudu, [2000] INSC 679. 25 �� 1164 Birma v State of Rajasthan AIR 1951 Raj.127�� 215 Board of Trustees of the Port of Bombay v Dilipkumar Raghavendranath Nadkarni (1983) 1 SCC 124��223 Chhetriya Pardushan Mukti Sangarsh Samiti v State of U.P. (1990) 4 SCC 449 ��223 Church of God (Full Gospel) in India v KKR Majestic Colony Welfare Association AIR 2000 SC 2773��223 Deepak Kumar v State of Haryana (2012) 4 SCC 629��227 Indian Council for Enviro-legal Action and others (Petitioners) v Union of India and others (Respondents), Writ Petitions No. 967 of 1989 with Nos. 94 of 1990, 824 of 1993, and 76 of 1994�� 1176–7 Indian Council for Enviro-legal Action & Ors v Union of India, (1996) 3 SCC 212�� 224, 672 Lafarge Umiam Mining Pvt. Ltd v Union of India (UOI) and Ors. (decided on 6.07.2011) MANU/SC/0735/2011)�� 220 L. K. Koolwal v State of Rajasthan AIR 1988 Rajasthan 2. ��223 MC Mehta v Union of India (Oleam Gas Leak ) WP 12739/1985 (1986.12.20)�� 1130 M. C. Mehta (Shriram Fertilizer) AIR 1987 SC 1086�� 223–4 M.C. Mehta v Kamal Nath, (1997) 1 SCC 388, (1999) 1 SCC 702, (2000) 6 SCC 213, and (2002) 3 SCC 653 �� 225, 431 M.C. Mehta v Union of India—Supreme Court of India (Writ Petition No. 13029 of 1985)��732, 738 M.C. Mehta v Union of India (Calcutta tanneries) (1997) 2 SCC 388��732 M.C. Mehta v Union of India (UOI) and Ors. AIR [1986] 1987 SCR (1) 819�� 1031 M.C. Mehta v Union of India & Ors (Taj Trapezium) (1997) 2 SCC 353, (1998) 8 SCC 711, (1999) 6 SCC 611, (2000) 10 SCC 551, (2001) 9 SCC 235, (2002) 10 SCC 664, and (2003) 10 SCC 719 �� 224, 226 MI Builders Pvt. Ltd v RadheyShyamSahu AIR 1996 SC 2468 ��225

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xxiv table of cases Miglani v State of Uttarakhand & Others, MCC 139/2017, CLMA 2359/2017, CLMA 2424/2017, CLMA 2924/2017, CLMA 3003/2017 In Writ Petition (PIL) No. 140 of 2015 (High Court of Uttarakhand at Nainital, 30 March 2017)�� 2061–2 N.D Jayal v Union of India (2003) 6 SCC 572�� 226 Narmada Bachao Andolan v Union of India (2000) 10 SCC 664�� 225, 428 Orissa Mining Corpn. Ltd v Ministry of Environment & Forests (2013) 6 SCC 476 �� 220 People United for Better Living in Calcutta v State of West Bengal, 24 September 1992, AIR 1993 Cal 215�� 1176 Rural Litigation and Entitlement Kendra v Dehradun v State of UP (1987) Supp SCC 487��225 S Jagannath v Union of India and ors 1997 (2) SCC 87�� 672 Salim v State of Uttarakhand & Others, Writ Petition (PIL) No. 126 of 2014 (High Court of Uttarakhand at Nainital, 20March 2017)��1061 Smoke Affected Residents Forum v Municipal Corporation of Greater Mumbai (2002) Bombay High Court (WP No 1762 of 1999)��732 State of Himachal Pradesh v Ganesh Wood Products AIR 1996 SC 149�� 226, 672 Subhash Kumar v State of Bihar AIR 1991 SC 420�� 223, 1065, 1079 T.N Godavaraman Thimmalapad v Union of India (2002) 10 SCC 606 �� 226 TN Godavarman Thirumulpad (98) v Union of India (2006) 5 SCC 28 ��800 Union Carbide Corporation v Union of India AIR 1990 SC 273�� 224 Vellore Citizens Welfare Forum (1996) 5 SCC 64 ��224–6, 664, 665, 672, 733, 1172, 1173

National Green Tribunal Animal Rescue Squad & Ors v Goa Pollution Control Board (NGT Western Bench, Pune; Original Application No. 30/2015/WZ�� 229 Gurpreet Singh Bagga v Ministry of Environment and Forests (2016), 016 SCC Online NGT 92 ��227 Indian Council for Enviro-legal Action (ICELA) v Minister of Environment, Forest and Climate Change, Application No. 70/2014, National Green Tribunal, Principal Bench, New Dehli, 10 December 2015��554 Jan Chetna v Ministry of Environment and Forests Judgment (NGT, 9 February 2012)�� 673 Jayal and anor v India and anor, Civil Writ Petition, 1 September 2003, [2004] 9 SCC 362, ILDC 456 (IN 2003) �� 1176 M/S Riverside Resorts Ltd v Pimpri Chinchwad Municipal Corporation (NGT, 29 January 2014)�� 673 National Green Tribunal Bar Association v Ministry of Environment & Forests & Ors (2013) Original Application No. 171 of 2013, before the NGT Principal Bench, New Delhi��227 Nutfar Sardar & Ors v Government of West Bengal & Ors (NGT Eastern Bench, Kolkata; Original Application No. 43/2015/EZ �� 229 Research Foundation for Science Technology and Natural Resources Policy v Union of India and Another, Appeal of monitoring committee recommendation, Writ Petition (civil) 657 of 1995, ILDC 385 (IN 2005), 1 May 2005, Oxford Reports on International Law �� 1170 Samir Mehta v Union of India (2016) 2016 SCC Online NGT 927.�� 228 Sanjay Kulshrestha v Union of India & Ors (Principal Bench, Original Application No. 95/2014)��228–9 Supreme Court Women Lawyers Association v Union of India & Ors (Principal Bench, Original Application No. 303/2015 �� 229 Vardhaman Kaushik v Union of India & Ors (Principal Bench, Original Application No. 21/2014) ��228, 732 Vardhaman Kaushik v Union of India & Ors and anor (NGT Applications 21 and 95 of 2014, Order of 7 April 2015)�� 673

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table of cases xxv Indonesia Constitutional Court Decision No 1–2/PUU/XI/2014 ��238 Constitutional Court Decision No. 32/PUU-VIII/2010 �� 250, 251 Constitutional Court Decision No. 35/PUU-II/2012�� 251 Constitutional Court Decision No. 21/PUU-XII/2014 �� 250 Dedi, et al. v Perhutani, et al., 49/Pdt.G/2003/PN.BDG (2003)�� 1172 Dedi et.al. v PT. Perhutani, Decision of the Supreme Court No. 1794 K/PDT/2004 (22 January 2007)�� 248 Ministry of Environment v PT. Kalista Alam, Decision of the Supreme Court No. 651 K/PDT/2015 (28 August 2015) �� 249 Walhi v P.T. Inti Indorayon Utama, Decision of the Central Jakarta District Court No. 820/ Pdt./G/1988/PN �� 248

Italy Cass. 19 January 2007, no. 1183, GI 2007, 12, 2724��1037 Cass. Sez.Un. 5 July 2017, no. 16601 ��1037

Japan JSC (16 December 1981)��274 JSC (15 October 2004)��274 SC (15 October 2004)��274 JSC (9 October 2014)��274 JSC (30 March 2017)��271 JSC (13 July 2017) ��271 Nîgata District Court (29 September 1971)��272 Kumamoto District Court (20 March 1973��273 Fukui District Court (21 May 2014)��271 Fukui District Court (14 April 2015) ��271 Kagoshima District Court (22 April 2015) ��271 Saga District Court (20 March 2015)��271 Fukui District Court (18 March 2015)��271 Ôtsuka District Court (09 March 2016)��271 Maebashi District Court (17 March 2017)��274 Ôsaka High Court (28 March 2017)��271

Kenya Nabori and ors v Attorney General and ors, High Court decision, Petition no. 466 of 2006, ILDC 1337 (KE 2007), 11 December 2007�� 1172 Waweru, Mwangi (joining) and ors (joining) v Kenya, Miscellaneous civil application, Case No 118 of 2004, 2 March 2006, ILDC 880 (KE 2006)�� 431, 1175

Mexico Amparo under Review 828/2010, SCJN, 1st Chamber, 19 January 2011 ��293 Amparo under Review 815/2010, SCJN, 1st Chamber, 2 February 2011 ��293 Direct Amparo under review 2938/2010, SCJN, 1st Chamber, 16 February 2011��293 Amparo under Review 582/2010, SCJN, 1st Chamber, 9 March 2011 ��293 Amparo under Review 455/2011, SCJN, 1st Chamber, 29 June 2011��293 Amparo in Review 781/2011, SCJN, 2nd. Chamber, 14 March 2012��290 Amparo in Review 631/2012, SCJN, 1st Chamber, 8 May 2013��290 Amparo under Review 548/2016, SCJN, 1st Chamber, 19 October 2016��293

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xxvi table of cases Indirect amparo, file 1726/2013, Fourth District Court in Tabasco, 10 March 2017��293 Indirect amparo, file 1241/2016, Fifth District Court in Veracruz, 29 March 2017 ��293 Case P. LXXVII/99, SJFG, 9th Period, November 1999�� 280 Case P.IX/2007, SJFG, 9th Period, April 2007 �� 280 Case I.4o.C.136 C., SJFG, 9th Period, Vol. XXVII, April 2008, 2381�� 292 Case 2a. LXXII/2010, SJFG, 9th Period, 2nd Chamber, Vol. XXXII, August 2010, 460�� 289 Case Law P./J. 38/2011, SJFG, 9th Period, Book I, Vol. 1, October 2011, 288�� 279 Case Law 1ª./J. 21/2012, SJFG, 10th Period, 1 Chamber, Book XIV, Vol. 1, November 2012, 610 ��293 Case Law P./J. 20/2014, SJFG, 10th Period, 25 April 2014�� 280 Case Law P./J. 21/2014, SJFG, 10th Period, 25 April 2014�� 280 Case I.9o.P.69 P., SJFG, 10th Period, Book 12, November 2014, 2928��281 Case XXVII.3o9 CS., SJFG, 10th Period, Book 37, December 2016, 1840�� 282 Civil Appeal 25/2015, Unit Court of the 26th Circuit, La Paz, Baja California Sur, 28 February 2017 �� 292

Nepal On behalf of Pro Public and on his own behalf, Advocate Prakash Mani Sharma, a resident of Ward No. 14, Kuleshwar, Kathmandu Metropolis, Kathmandu District and Others v Godavari Marble Industries Pvt. Ltd and Others, 068–WO-0082�� 1177 Prakash Mani Sharma v HMG Cabinet Secretariat (2007) Supreme Court of Nepal (WN 3027 of ‘2059’)��732 Surya Prasad Sharma Dhungel on behalf of Leaders Inc. Pvt Ltd v Godavari Marble Industries Pvt Ltd and Others (Writ Petition No. 35 of the year 2049 (1991)), 14 Kartik 2052 (1994), IELR 326��1174

Netherlands G.J.P. Ziers v Provincial Executive Gelderland, Administrative Justice Division AB 1995�� 1180 Handelskwekerij G-J Bier B.V. Stichting Reinwater v Mines de Potasse d’Alsace S.A., 16 December 1983, (1984) 15 NYIL 471–84�� 1178 Mines de Potasse d’Alsace SA v Onroad Goed Maatschappij Bier BV and Others, 10 September 1986, IELR 343�� 1178 President Afd G RvS, 30 May 1984�� 1177 Shell, ECLI:NL:GHDHA:2015:3586 ��1155 Urgenda Foundation v The State of the Netherlands, C/09/456689/HA ZA 13–1396 (24 June 2015)��1174 Urgenda Foundation v The Netherlands C/09/456689/HA ZA 13–1396 The Hague District Court Chamber for Commercial Affairs 24 June 2015; affirmed on appeal C/09/456689/ HA ZA 13–1396 The Hague Court of Appeal 9 October 2018��544, 1109, 1110, 1174, 1180 Vereniging Milieudefensie et al v Royal Dutch Shell plc and Shell Petroleum Development Company of Nigeria Ltd, BK8616, Rechtbank’s-Gravenhage, HA ZA 330891 09–579�� 1149

New Zealand Electricity Corporation of New Zealand Ltd v Manawatu-Wanganui Regional Council (Planning Tribunal W70/90, 29 October 1990), 95�� 805 Environmental Defence Society Incorporated v The New Zealand King Salmon Company Limited [2014] NZSC 38, [2014] 1 NZLR 593�� 802

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table of cases xxvii Fraser v Beckett and Sterling Ltd [1963] NZLR 480 �� 1130 Statement of Claim, Thomson v Minister for Climate Change Issues, HCNZ, CIV-2015–10 November 2015�� 544 Sustain Our Sounds Incorporated v. The New Zealand King Salmon Company Ltd. [2014] NZSC 40�� 895

Pakistan Asghar Leghari v Federation of Pakistan, Lahore High Court (WP No. 25501 of 2015)�� 732, 1056, 1174 Leghari v Federation of Pakistan (2015) W.P. No. 25501/2015, Lahore High Court�� 544 Mansoor Ali Shah v Government of Punjab (2007) CLD 533 Lahore High Court�� 732, 733 Zia, Shelhla v WAPAD PLD 1994 SC 693��653, 1065, 1076

Philippines Metro. Manila Dev. Auth. v Concerned Residents of Manila Bay, G.R. No. 171947–48, 574 S.C.R.A. 661 (S.C., 18 December 2008) (Phil.) �� 431, 728, 733

Singapore Public Prosecutor v Lim Niah Liang [1996] 3 SLR(R) 702; [1996] SGHC 265�� 307

South Africa Aquarius Platinum (SA) (Pty) Ltd against the Minister of Mineral Resources and the Minister of Environmental Affairs and five others Unreported, case no. 25622/2014, Gauteng High Court�� 331 BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation and Land Affairs 2004 (5) SA 124 (W) �� 318 City of Cape Town v Maccsand (Pty) Ltd and Others 2010 (3) SA 63 (WCC)�� 327–8 City of Cape Town v Maccsand (Pty) Ltd and Others 2011 (6) SA 633 (SCA)�� 327–8 City of Johannesburg and Others v Mazibuko and Others 2009 (3) SA 592 (SCA)�� 320 Communities for a Better Environment v City of Richmond 184 Cal.App.4th 70 (2010)��332 Director: Mineral Development, Gauteng Region v Save the Vaal Environment, 1992 2 SA 709 (SCA)��1057 Earthlife Africa (Cape Town) v DG: DEA&T and Eskom 2005 (3) SA 156 (C)�� 320 Earthlife Africa Johannesburg v The Minister of Environmental Affairs & Others [2017] 2 All SA 519 (GP)��319, 332 Earthlife Africa Johannesburg and South African Faith Communities’ Environment Institute v Minister of Energy and Others [2017] 3 All SA 187 (WCC)�� 319, 332–3 Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1998 (12) BCLR 1458 (CC) �� 321 Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province, and Others 2007 (6) SA 4 (CC); 2007 (10) BCLR 1059 (CC) ��318–19, 325 Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC); 2011 (7) BCLR 651 (CC) �� 317 Government of the Republic of South Africa and Others v Grootboom and others (CCT11/00) [2000] ZACC 19��1066–7 Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others 2010 (6) SA 182 (CC) 2010 (9) BCLR 859 �� 326–7

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xxviii table of cases Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others 2010 (2) SA 554 (SCA); 2010 (1) BCLR 157 (SCA) �� 326–7 Louw NO and Others v Swartland Municipality (650/2010) [2011] ZASCA 142 (23 September 2011)��328 Maccsand (Pty) Ltd and Another v City of Cape Town and Others [2012] JOL 28669 (CC)�� 327–8 Mazibuko and Others v City of Johannesburg and Others [2008] 4 All SA 471 (W) ��320, 1173, 1175 Mazibuko and Others v City of Johannesburg and Others CCT 39/09 [2009] ZACC 28��1067 Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC)�� 320 MEC for Agriculture, Conservation, Environment and Land Affairs, Gauteng v Sasol Oil [2006] 2 All SA 17 (SCA)��319 Mining and Environmental Justice Community Network of South Africa and others, and Minister of Environmental Affairs and Minister of Mineral Resources and others High Court, Gauteng Division (Case no. 50779/2017)��325 Minister for Environmental Affairs and Another v Aquarius Platinum (SA) (Pty) Ltd and Others (CCT102/15) [2016] ZACC 4; 2016 (5) BCLR 673 (CC) (23 February 2016)�� 331 Minister of Water Affairs and Forestry v Stilfontein Gold Mining Company and Others (7655/55,7655/55) [2006] ZAGPHC 47 (15 May 2006) �� 427 Premier of the Province of the Western Cape, The v The President of the RSA 1999 (4) BCLR 382 (CC) �� 321 Swartland Municipality v Louw NO and Others Case 2010 (5) SA 314 (WCC) ��328 Vaal Environmental Justice Alliance v Appeal Company Secretary, ArcelorMittal SA 2015 (1) SA 515 (SCA)�� 320

South Korea South Korean Constitutional Court, 2006 Hun-Ma711 (31 July 2008)��337 Constitutional Court 2010Hun-Ba167 (23 August 2012)��343 South Korean Supreme Court, 72Da1774 (10 December 1974)�� 348 South Korean Supreme Court, 81Da558 (12 June 1984)�� 348 South Korean Supreme Court, 95Da2692 (27 June 1997)�� 348 South Korean Supreme Court, 2000Da65666 (22 October 2002) �� 348 South Korean Supreme Court, 2003 Da2123 (26 November 2004)�� 348 South Korean Supreme Court, 2004Ma1148, 1149 (combined, 2 June 2006), upholding Busan Appellate Court, 2004Ra41, 42 (combined, 29 November 2004)��338 South Korean Supreme Court, 2006Du330 (16 March 2006) ��337 South Korean Supreme Court, 2012Du6322 (10 December 2015)��337

Spain Supreme Court Judgment (Administrative Law Chamber) of 29 November 2006, appeal 933/2003�� 486

Sri Lanka Bulankulama v Sec’y, Ministry of Indus. Dev. [2000] LKSC 18�� 1176

Switzerland Kraftwerk Reckingen AG v Canton of Zurich and ors, Appeal judgment, BGE 129 II 114, ILDC 346 (CH 2002), 10 October 2002, Oxford Reports on International Law��1171

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table of cases xxix

United Kingdom A v National Blood Authority [2001] 3 All ER 289�� 1103 AAA et al v Unilever and Unilever Tea Kenya Ltd [2017] EWHC 371 (QB) �� 1151 Alphacell v Woodward [1972] A.C. 824 (HOL)��1128–9 Assets Co Ltd v Mere Roihi [1905] AC 176�� 713 AXA General Insurance v Lord Advocate [2011] UKSC 46�� 369 Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312; [2013] Q.B. 455 ��1116 Blades v Higgs (1865) 11 HL Cas 621�� 708 Bolton v Stone [1951] AC 850 �� 1102 Burnie Port v General Jones Pty. Ltd. [1994] HCA 13��1032 Californian Chamber of Commerce et al. v State Air Resources Board et al., C075954 (Super. Ct. Nos. 34–2013–80001464–CU-WM-GDS) �� 934 Cambridge Water Co Ltd v Eastern Counties Leather [1994] 1 All ER 53 HL�� 299, 1031 Caparo v Dickman [1990] 2 AC 605 ��1151–2 Case of Swans, The, (1592) 7 Co Rep 15b at 7b; Blades v Higgs (1865) 11 HL Cas 621 �� 708 Chandler v Cape [2012] EWCA Civ 525 ��1155 Chief Constable of North Wales Police v Evans [1982] 3 All ER 141�� 729 Coventry (t/a RDC Promotions) v Lawrence [2014] UKSC 14��716 Cresswell v DPP [2006] EWHC 3379 Admin�� 708 Deutsche Bank AG v Total Global Steel Ltd [2012] EWHC 1201�� 1088 Downs v Secretary of State for Environment, Food and Rural Affairs [2009] Environmental Law Reports 19�� 355, 1084 Edwards v Environment Agency [2006] EWCA Civ 877�� 1076 Ellenborough Park, Re, [1956] Ch 131 �� 709 Empress Car Company (Abertillery) Ltd v NRA [1998] Environmental Law Reports LR 39��361 Express Ltd (t/a Express Dairies Distribution) v Environment Agency [2003] Environmental Law Reports 29��361 Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22��1035, 1107 Fisher v English Nature [2005] Environmental Law Reports 10�� 368 Fishermen and Friends of the Sea v The Minister of Planning, Housing and the Environment (Trinidad and Tobago) [2017] UKPC 37�� 665 Fletcher v Rylands (1865–66) L.R. 1 Ex. 265��1103, 1155 Gorris v Scott (1874) L. R. 9 Ex. 125��1114 Kearry v Pattinson [1939] 1 KB 471 �� 708 Hunter v Canary Wharf Ltd [1997] AC 655 �� 1032, 1100, 1102 Ineos Manufacturing Scotland Ltd v Grangemouth CHP Ltd [2011] EWHC 163�� 1088 Lawrence v Fen Tigers Ltd (No. 1) [2014] UKSC 13; [2014] AC 822 �� 1108, 1116 Levy v Environment Agency [2002] EWHC 1663 (Admin)�� 1084 Liverpool CC v Irwin [1977] AC 256�� 710 London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278, [1994] 1 WLR 31�� 709 Lungowe v Vedanta and Konkola [2017] EWCA Civ 1528 �� 1151 Mott v Environment Agency [2018] UKSC 1��41 NRA v Biffa Waste Services [1996] Env LR 227��361 Okpabi v Shelll [2017] EWHC 89 (TCC) ��1149–51, 1152 Petrodel v Prest [2013] UKSC 34 �� 1156–7 Pride of Derby Angling and Derbyshire Angling Association Ltd v British Celanese Ltd [1952] Ch 149��708, 1107

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xxx table of cases Queen (on the application of Peter Wright) v Forest of Dean District Council [2016] EWHC 1349 (Admin); [2016] JPL 1235�� 746 R v Dovermoss [1995] Environmental Law Reports 258��361 R v (Edwards) v The Environment Agency [2004] EWHC 736 (Admin) �� 1088 R v Hammersmith London Borough Council, ex parte Burkett [2003] Environmental Law Reports 6�� 369 R v HM Inspectorate of Pollution ex parte Greenpeace Ltd (No 2), [1994] 4 All ER 329 ��1088, 1174 R v Secretary of State for Trade and Industry, ex parte Greenpeace Ltd. [2000] 2 CMLR 94�� 849 R v Secretary of State for the Environment, ex parte Rose Theatre Trust [1990] 1 QB 504 �� 369 R. v Secretary of State for Foreign and Commonwealth Affairs, Ex parte World Development Movement Ltd 1 W.L.R. 386 (1994)�� 428 R v Secretary of State for Trade and Industry, ex parte Duddridge [1995] Environmental Law Reports 151�� 355, 1172 R v Secretary of State for Trade and Industry, ex parte Duddridge, The Times 26 October 1995 (CA); [2007] 1 WLR 1780 �� 670 R v Somerset County Council, ex parte Fewings [1995] 1 WLR 1037 �� 843 R v Thames Water Utilities [2015] Environmental Law Reports 36�� 361, 372 R v W [2013] Environmental Law Reports 15��362 R (Berky) v Newport City Council [2012] Environmental Law Reports 35�� 370 R (Buglife) v Medway Council [2011] Environmental Law Reports 27�� 370 R (Burridge) v Breckland District Council and Greenshoots Energy Ltd [2013] EWCA Civ�� 888 R(ClientEarth) v Secretary of State for Environment, Food and Rural Affairs [2015] UKSC 28 ��162, 360 R(ClientEarth (No 2) v Food and Rural Affairs Secretary of State for the Environment [2016] EWHC 2740 (Admin)�� 766, 874 R (ClientEarth No. 3) v Secretary of State for the Environment, Food and Rural Affairs [2018] EWHC 315 (Admin)��162 R (Crest Nicholson) v Secretary of State for the Environment [2010] EWHC 1561 (Admin), [2011] Env LR 1�� 639 R (on the application of Greenpeace) v Secretary of State for Trade and Industry [2007] EWHC 311 ��1076, 1171 R (Jackson) v Attorney General [2005] UKHL 56, [2006] 1 AC 262��795 R. (Jones) v Mansfield DC [2004] Env. L.R. 21�� 1084 R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583��795 R (Mott) v Environment Agency [2016] EWCA Civ 564�� 762, 1084 R (Nicklinson) v Ministry of Justice [2014] UKSC 38, [2015] AC 657��795 R (Western Power Distribution Investments Ltd) v Countryside Council for Wales [2007] Environmental Law Reports 25�� 368 RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council 1985 SC (HL) 17��1032 ROSS Group Ltd v Environment Agency [2007] Environmental Law Reports 8��363 Rylands v Fletcher (1868) LR 3 HL 330 ��299, 1031–2, 1099, 1103 Salomon v A Salomon & Co Ltd [1896] UKHL 1, [1897] AC 22��1158 Secretary of State for Communities and Local Government v Venn [2015] Environmental Law Reports 14�� 370 Sedleigh-Denfield v O’Callaghan [1940] AC 880��1104 Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174��1083 St Helens Smelting Co. v Tipping (1865) 11 HLC 642 ��716

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table of cases xxxi Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432��795 Sturges v Bridgman [1879] 11 Ch D 852�� 716, 1104 Tatar v Romania (2009) 21(3) Journal of Environmental Law�� 355 Tombesi Litigation [1998] Env. L. R. 59�� 155 Topp v London Country Bus (South West) Ltd [1993] 1 WLR 976; [1993] 3 All ER 448 �� 1108 Venn v Secretary of State for Communities and Local Government [2013] EWHC 3546 (Admin)��1077 VTB Capital plc v Nutritek International Corpn [2013] UKSC 5; [2013] 2 A.C. 337��1100, 1157–8 Walton v Scottish Ministers [2012 UKSC 44 ��1077 Webb v Bird (1863) 13 CRNS 841, 143 ER 332 �� 1102 Wilkes v Depuy International Limited [2016] EWHC 3096 (QB)�� 1103

United States Agent Orange, In re, 745 F.2d 161 (2d Cir 1984) ��1039 Airport Neighbors Alliance, Inc. v United States, 90 F.3d 426 (10th Cir. 1996)�� 889 Alaska Oil and Gas Ass’n v Jewell, No. 13–35919 (9th Cir. 29 February 2016) �� 479 American Pelagic Fishing Company LP v United States, 34 ELR 20075, ILDC 310 (US 2004), 16 August 2004, Oxford Report on International Law��1171 Amlon Metals, Inc. v FMC Corp., 775 F Supp 668 (1991)�� 1176 Animal Lovers Volunteer Ass’n v Weinberger, 765 F.2d 937 (C.A.9 (Cal.), 1985)��481 Apartheid [Lungisile Ntsebeza et al v Ford General motors and IBM], http://opiniojuris. org/wp-content/uploads/17–Apr-SDNY-Opinion.pdf.��1147, 1154 Barker v Lull Eng’g Co 20 Cal. 3d 413 (1978)�� 1103 Baxter v Ford Motor Co., 168 Wash. 456, 12 P.2d 409 (Wash. 1932)��1032 Beanal v Freeport-McMoran Incorporated and Freeport McMoran Copper and Gold Incorporated, Appeal judgment, 197 F.3d 161 (1999), ILDC 1449 (US 1999), 29 November 1999, Oxford Reports on International Law��1173 Beshada v. Johns-Manville Prods. Corp. 90 N.J. 191 (1982) �� 1103 BMW v Gore, 517 U.S. 559, 116 S. Ct. 1589 (1996)��1032 Boomer v Atlantic Cement Company, Inc 26 N.Y.2d 219 (1970)�� 1108 Bristol-Myers, USSC No.16–466. Decided 19 June 2017�� 1147 Calcaño Pallano and ors v AES Corporation and ors, Consolidated trial judgment, CA No N10C-04–054, ILDC 1830 (US 2011), 15 July 2011, Oxford Reports on International Law �� 1171, 1173 California Wilderness Coal. v U.S. Dep’t of Energy, 631 F.3d 1072 (9th Cir. 201)��563 Calvert Cliffs’ Coordinating Committee Inc. v United States Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971)�� 879, 888 Cardona v Chiquita and Doe v. Chiquita, U.S. Supreme Court, Nos. 14–777 and 14–1011�� 1147 Chevron USA v Hammond, 726 F.2d 483 (1984)�� 1170 Chevron U.S.A., Inc. v Natural Resources Defense Council, 467 U.S. 837 (1984)�� 389 Citizens to Preserve Overton Park v Volpe, 401 U.S. 402 (1971) �� 388 Connor v Burford, 848 F.2d 1441 (9th Cir. 1988) �� 477 Conway v O’Brien 111 F.2d 611 (1940)�� 1102 Cook v Lewis [1951] SCR 830; [1952] 1 DLR 1�� 1107 Corrosion Proof Fittings v EPA, 947 F.2d 1201 (5th Cir. 1991)�� 593–4, 599 Daimler v Bauman USSC No. 11–965.�� 1146–7, 1148 De La Cruz and ors v Gulf Coast Marine & Associates Incorporated and ors, Decision on motion to dismiss, 9:09–CV-00167(ED Tex 2011), ILDC 1774 (US 2011), 7 March 2011�� 1178

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xxxii table of cases Defenders of Wildlife v Babbitt, 95 8 F. Supp. 670 (D.D.C. 1997)�� 477 Defenders of Wildlife v Endangered Species Scientific Authorities, 659 F.2d 168 (1981)�� 1179 Diamond, Commissioner of Patents and Trademarks v Chakrabarty, 447 U.S. 303 (1980)��526, 527 Doe I v Unocal Corp., 395 F.3d 932 (9th Cir. 2002), rehearing en banc granted, 395 F.3d 978 (9th Cir. 2003), and vacated and appeal dismissed following settlement, 403 F. 3d 708 (9th Cir. 2005)�� 1144 Earth Island Institute v U.S. Forest Service, 351 F.3d 1291 (9th Cir. 2003)�� 888 Escola v Coca Cola Bottling Co. of Fresno, 24 Cal. 2d 453, 150 P.2d 436 (Cal. 1944) ��1032 Exxon Shipping Co. v. Baker, 554 U.S. 471 S. Ct. 2605 (2008) ��1037 Filartiga v Pena-Irala, 630 F.2d 876 (2d Cir. 1980)�� 1143 Flores and ors v Southern Peru Copper Corporation, 29 August 2003, ILDC 303 (US 2003) ��1173, 1174 Friends for All Children Inc. v Lockheed Aircraft Corp., 746 F.2d 816 (D.C.Cir. 1984)��1037 Georgia v Tennessee Copper (1907)�� 398 Greater Boston Television Corp. v FCC, 44 F2d 841 (DC Cir 1970)�� 893 Greenman v Yuba Power Products, Inc., 59 Cal. 2d 57, 377 P.2d 897 (Cal. 1963)��1032 Greenpeace v Stone, 748 F.Supp. 749�� 1168 Henningsen v Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (N.J. 1960) ��1032 Hibberd, ex parte 227 U.S.PQ. 443 (Bd. Pat. App. & Int. 1985)��526, 527 High Sierra Hikers Association v Weingardt, 521 F. Supp. 2d 1065 (N.D. Ca. 2007)�� 895 HJ Justin and Sons v Brown, 519 F.Supp 1383�� 1168 Hodel v Virginia Surface Mining & Reclamation Association, Decision of 15 June 1981, 452 U.S. 264, (1981) ��695–6 Hughes v Oklahoma, 441 U.S. 322 (1979) �� 474 Ill. Cent. R.R. v Illinois, 146 U.S. 387 (1892) ��431 International Shoe v State of Washington—326 U.S. 310 (1945)�� 1146 Intertanko v Lowry, 947 F.Supp 1484 (1996)�� 1170 Jesner et al. v Arab Bank, USSC No.16–499�� 1147, 1148 Kennecott Copper Corporation v EPA 462 F 2d 846 (DC Cir 1972)�� 762, 1084 Kiobel v Royal Dutch Petroleum Co., 621 F. 3d 111 (2d Cir. 17 September 2010)��1141, 1144, 1145–6, 1148 Khulumani v Barclay Nat’l Bank Ltd, 504 F.3d 254 (2d Cir. 2007)��1144–5 Kleppe v Sierra Club, 427 US 390 (1976)�� 893 Institute of Cetacean Research v Sea Shepherd Conservation Society, No. 11–cv-2043 (W.D. Wash. 20 December 2015)�� 1143 Lead Industries Association v EPA, 647 F.2d 1130 (D.C.Cir.1980), cert. denied, 449 U.S. 1042 (1980)��378 Lucas v South Carolina Coastal Council 505 U.S. 1003 (1992)��377 Lujan v Defenders of Wildlife, 504 U.S. 555 (1992)��393 Lungisile Ntsebeza, et al v Ford Motor Company et al, USSC No 15–2020�� 1147 MacPherson v Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (N.Y. 1916) ��1032 Man Hing Ivory v Denkmejian, 702 F.2d 760 (1983)�� 1170 Markle Interests, L.L.C. v U.S. Fish and Wildlife Service, No. 14–31008 (5th Cir. 30 June 2016)�� 479 Marsh v Oregon Natural Resources Council, 490 US 360 (1988)�� 887 Martin v Waddell, 41 U.S. 367 (1842)��431 Maryland v Louisiana, 451 U.S. 725 (1981)��908 Massachusetts v EPA, 549 U.S. 497 (2007)��409, 415, 538, 542 Metro-North Commuter R.R. Co. v Buckley, 521 U.S. 424 S. Ct. 2113 (1997)��1037

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table of cases xxxiii Morisette v United States 342 US 246 (1952)�� 1130 Morrison v National Austtralia Bank USSC No. 10–1491�� 1145 Narmada Bachao Aandolan v India, ex parte Narmada Control Authority and ex parte Ministry of Water Resources of India, Original writ petition, AIR 2000 SC 3751, ILDC 169 (IN 2000), 18 October 2000 �� 1176 National Audubon Society v Superior Court, 658 P. 2d 709 (1983), US Supreme Court review denied, 463 U.S. 977 (1983)��431 National Federation of Independent Business v Sebelius, 132 S. Ct. 2566 (2012)��908 Natural Resources Defense Council v Environmental Protection Agency and Methyl Bromide Industry Panel of the American Chemistry Council (intervening), Judgment After Rehearing, Docket No 04–1438, 464 F.3d 1 (2006), 373 U.S.App.D.C. 223 (2006)��1173 Natural Resources Defense Council Inc. v Hodel, 865 F 2d 288 (DC Cir. 1988)�� 887 New Energy Co. of Indiana v Limbach, 486 U.S. 269 (1988)��908 Northern Counties Investment Trust v Sears, 41 P. 931 (Or. 1895)�� 910 Palazzolo v Rhode Island, 533 U.S. 606 (2001)��435 Penn Central Transportation Co. v New York City, 38 U.S. 104 (1978)��377 Pennsylvania Environmental Defense Fund v Commonwealth, 2017, No. 10 MAP 2015��1058 Piedmont Envtl. Council v FERC, 558 F.3d 304 (4th Cir. 200)�� 564 Potter v Firestone Tire & Rubber Co., 6 Cal. 4th 965 P.2d 795 (Cal. 1993)��1037 Robinson Township v Commonwealth, 83 A.3d 901 (Pa.2013) ��1058 Sindell v Abbott Laboratories 26 Cal. 3d 588 P. 2d 924 (Cal. 1980)�� 1034, 1107 Sissel v U.S. Department of Health and Human Services, 760 F.3d 1 (D.C. Cir. 2014)�� 910 Sosa v Alvarez-Machain, 124 S. Ct. 2739, 2769 (2004) �� 1143, 1144 Southwest Center for Biological Diversity v Babbitt, 926 F. Supp. 920, 927 (D. Ariz. 1996)�� 477 Spur Industries, Inc v. Del E. Webb Development Co 108 Ariz. 178 (1972)�� 1009 State v Kemp, 44 N.W.2d 214 (S.D. 1950)�� 1170 State, Department of Parks v Idaho Department of Water Administration, 530 Pacific Reporter 2d 924 (Idaho 1974)�� 430 State Ice Co. v Liebermann, 285 U.S. 262, 311 (1932)��690 State of Missouri v Holland, 252 U.S. 416 (1920) �� 1177 Strycker’s Bay Neighborhood Council Inc. v Karlen, 444 U.S. 223 (1980)�� 386 Summers v Tice 33 Cal.2d 80 (1948) �� 1107 TVA v Hill, 437 U.S. 153 (1978)�� 484 TXO Prod. Corp. v Alliance Res. Corp., 509 U.S. 443 S.Ct. 2711 (1993) ��1037 Union Electric Company v EPA, 427 U.S. 246 (1976)��379 United States v Dotterweich 320 US 277 (1943)�� 1130 United States v Lopez, 514 U.S. 549 (1995)��53 United States v One Etched Ivory Tusk of African Elephant, 871 F.Supp.2d 128 (2012)�� 1172 West Virginia et al. v EPA et al (9 February 2016) 577 U.S. ��409, 415, 538, 542

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Table of Legislation International Instruments Convention for the Unification of Certain Rules Relating to International Carriage by Air 1929, 137 UNTS 13 (Warsaw Convention)��1028 Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, 1940, 161 UNTS 193 �� 462 United Nations Charter 1945�� 1047, 1050 International Convention for the Regulation of Whaling 1946, 161 UNTS 72��474 General Agreement on Tariffs and Trade 1948��482, 910, 919 Art II �� 911 Art II(2)(a) �� 911 Art III�� 911 Art III(1) �� 911 Art III Note Ad (2)�� 911 Art XX�� 911 Art XX (chapeau)�� 911 Art XX (b), (g)�� 482 Universal Declaration of Human Rights 1948�� 1047, 1050 International Plant Protection Convention 1951��481 European Convention on Human Rights 1952 �� 152, 355, 436, 980, 1054–5, 1153 Art 1��41 Art 6�� 846 Art 7�� 1129 Art 8��355, 1055 First Protocol �� 355 Art 1�� 485, 846 Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface by the International Civil Aviation Organisation of the ICAO 1952, (Rome Convention)��1028 Interim Convention on Conservation of North Pacific Fur Seals 1957, 4546 UNTS 298 ��474 Art IIa ��474

Antarctic Treaty 1959��839 Convention Supplementary to the Paris Convention 1960 (1963, 1041 UNTS 358) (Brussels Supplementary Convention; Protocols from 1964, 1982 and 2004)��1027 Convention on Civil Liability for Nuclear Damage 1963, 1063 UNTS 265 (Vienna Convention) ��1027 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, 1963, 480 UNTS 43 ��398 Outer Space Treaty (Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 1967 ��839 African Convention for the Conservation of Nature and Natural Resources 1968, 1001 UNTS 4 (revised 2017) ��449, 462, 475 Art 12��838 Convention on Third Party Liability in the Field of Nuclear Energy 1960, 956 UNTS 251 (Paris Convention; Protocols from 1964, 1982 and 2004)��1027 International Convention for the Protection of New Varieties of Plants, International Union for the Protection of New Varieties of Plants 1968 (revised 1972, 1978, and 1991)�� 525 Art 1(v)�� 525 American Convention on Human Rights 1960�� 980, 1054 Art 13�� 980 Convention for the Conservation of Vicuna 1969 �� 476 Vienna Convention on the Law of Treaties 1969�� 175 Art 18��228, 1171 Art 31(3)�� 445 Convention on Civil Liability for Oil Pollution Damage 1969 ��228 Declaration of Principles Governing the Seabed and the Ocean-floor, and the Subsoil

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xxxvi table of legislation thereof, beyond the Limits of National Jurisdiction 1970 �� 448 Convention on Wetlands of International Importance especially as Waterfowl Habitat 1971, 996 UNTS 245 (Ramsar Convention) ��346, 422, 433–5, 436, 458, 464, 469, 836, 838, 894 Art 2��839 Art 2.2 �� 432–4 Art 2.3 ��435 Art 2.4 ��839 Art 2.5 ��841 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971 (superseded by Protocol of 1992, as amended)�� 1027 Convention Concerning the Protection of the World Cultural and Natural Heritage 1972 1037 UNTS 151��62, 457, 470, 839, 1166, 1177 Art 2�� 840 Art 5(d)�� 62–3 Art 11 ��839 Convention for the Conservation of Antarctic Seals 1972, 1080 UNT 165�� 476 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters (London Convention) 1972��777, 1174, 1177, 1178 Declaration of the United Nations Conference on the Human Environment 1972 (Stockholm Declaration) ��152, 168, 655, 1050–1, 1172, 1174, 1175 Principle 1�� 1051 Principle 21�� 401, 1176 Agreement on the Conservation of Polar Bears 1973 �� 476 Convention for the Prevention of Pollution from Ships (MARPOL) 1973 �� 175, 228, 1168 Convention Establishing a Permanent Inter-State Drought Control Committee for the Sahel 1974�� 450 Nordic Convention on the Protection of the Environment 1974�� Art 3�� 1178 Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974, 1463 UNTS 20 (amended by Protocol of 2002)��1029

Convention on International Trade in Endangered Species of Wild Fauna and Flora 1975��218–19, 309, 462, 482–4, 894, 1169 App I ��261 Belgrade Charter 1976�� 954 Tbilisi Declaration 1977��50–1, 954 Convention on Civil Liability for Oil Pollution Damage 1978��243 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies 1979��839 Convention on the Conservation of European Wildlife and Natural Habitats 1979 (Bern Convention) ��836 Convention on Long-Range Transboundary Air Pollution 1979, 1302 UNTS 217�� 399–400 Art 1(b) �� 399 Art 2��400 Protocols�� 399 Gothenburg Protocol 1999�� 405 Convention on the Conservation of Migratory Species of Wild Animals 1979, 1651 UNTS 333 �� 462, 465, 474, 477 Preamble��474, 475 Art III.2 and 3�� 477 Art III.4.c��481 Convention on the Conservation of European Wildlife and Natural habitats 1979� 462, 465, 470, 474–5, 476, 478 Art 2�� 476 Convention on the Conservation of Antarctic Marine Living Resources 1980�� 839, 849 African Charter on Human and Peoples’ Rights 1981�� 1055 Art 24��1054 United Nations Convention on the Law of the Sea 1982, 1833 UNTS 397�� 168, 228, 448, 848–9, 880, 1168, 1170, 1179, 1181 Art 193�� 848 Pt XI and Agreement relating to the implementation of Part XI of the of 10 December 1982 (1994)�� 849 United Nations World Charter for Nature 1982��168, 655, 1051–2 Arts 1–5�� 1051 Protocol Concerning Protected Areas and Wild Fauna and Flora in the Eastern African Region 1995 Art 5�� 479

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table of legislation xxxvii ASEAN Agreement on the Conservation of Nature and Natural Resources 1985 Art 7�� 450 Vienna Convention on the Protection of the Ozone Layer 1985 �� 307, 572 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal 1989, 1673 UNTS 57��167, 307, 619–20, 733, 1028, 1169 Art 4(1) ��619 Arts 4(2)(f), 4(3)�� 620 Art 4(6)��619 Arts 4(7)(b) and 9(1)–(4) �� 620 Convention for the Protection of the Natural Resources and Environment of the South Pacific Region 1986�� 470 Joint Protocol relating to the application of the Vienna Convention and the Paris Convention 1988, 1672 UNTS 293��1027 San Salvador Protocol to the American Convention on Human Rights 1988 ��1054 Art 11 ��1054 Convention on Civil Liability for Damage Caused during Carriage of Dangerous Goods by Rail, Road, and Inland Navigation Vessels 1989 ��1028 Montreal Protocol on Substances that Deplete the Ozone Layer 1989�� 553, 572–3, 1169 International Labour Organization, Convention No. 169, Convention concerning Indigenous and Tribal Peoples in Independent Countries 1989��106, 281, 290, 1167 Montreal Protocol on Substances that Deplete the Ozone Layer 1989 ��307 North American Free Trade Agreement 1989��126 Bamako Convention on the ban on the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa 1991�� 620 Alpine Convention 1991�� 450 Art 2(1)�� 450 Protocol for the Implementation of the Alpine Convention of 1991 in the Field of Soil Protection 1991�� 450 Art 1(2)�� 450 Convention on Environmental Impact Assessment in a Transboundary

Context 1991, 1989 U.N.T.S. 310 (Espoo Convention)��880, 895, 896, 982 App II�� 889 App V��895 Protocol on Environmental Protection to the Antarctic Treaty 1991�� 839, 880, 887 Art 5��895 Annex I, Arts 2, 3, 8(1)��887 App V��895 Protocol of 1992 to amend the International Convention on Civil Liability for Oil Pollution Damage 1992, 1956 UNTS 255 (amended by Protocol of 2000)��1027 United Nations Convention on Biological Diversity 1992, 1760 UNTS 79��168, 308, 316, 346, 434, 444, 446, 448, 456, 463, 464–8, 470, 474, 475, 477, 478–9, 481, 487, 848, 850, 892, 894, 1171 Preamble�� 446, 461, 465 Art 1�� 446 Art 2��446, 456, 464, 467, 850 Art 7�� 477 Art 8��463, 464, 467 Art 8(c) �� 480 Art 8(h)��481 Art 9�� 463, 464 Art 14�� 880 Art 15.1�� 465 Art 25�� 477 Art 28�� 446 Annex I�� 464 Annex 1(2)�� 477 Protocols�� 446 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) to the Convention on Biological Diversity Article 15 and Annex�� 465 Rio Declaration on Environment and Development 1992�� 168, 257, 466, 655–6, 657, 658, 659, 661, 662, 663, 880, 906, 1087, 1172, 1174, 1175 Principle 2��401, 655, 894 Principle 3�� 466, 6556 Principle 4��444, 656 Principles 6 and 7�� 444 Principle 10��656, 733, 978–88, 1063 Principle 11 ��655, 659 Principle 15 �� 512, 656, 660

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xxxviii table of legislation Principle 16�� 224, 426, 656, 906 Principle 18��655, 657 Principle 19��655 Principle 27��655 United Nations Conference on Environment and Development Non-legally Binding Authoritative Statement of Principles for the Management, Conservation and Sustainable Development of All Types of Forests 1992 (Statement of Forest Principles 1992) ��443, 444 Principles 2(b), 8(b )` �� 443 United Nations Framework Convention on Climate Change 1992�� 72, 240, 269, 316, 444, 446–7, 448, 500, 545, 569, 572, 573, 660, 773, 774, 788, 979, 1080, 1163, 1171, 1175, 1180 Preamble�� 447 Art 3�� 447 Art 3(3)��660 Art 6�� 979 UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes 1992, 1936 UNTS 269 Art 16�� 979 Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment 1993 (Lugano Convention)��1038 Art 2(7) ��1038 ILO Convention on the Prevention of Major Industrial Accidents 1993, 1967 UNTS 231 Arts 15 and 16 �� 979 Southern Bluefin Tuna Convention 1993 Art 6��777 Agreement on Trade-Related Aspects of Intellectual Property Rights 1994�� 526–7, 528, 529 Art 27.3(b)��528, 529 United Nations Convention to Combat Desertification in Countries Experiencing Serious Drought and/ or Desertification, Particularly in Africa 1994�� 440, 444, 445, 448, 456, 458 Art 1�� 445 Art 1(f)��440 Arts 8 (c) (f), 19(e)�� 456 Art 10(i)(d)�� 445 Annex I�� 445

Annex II, Art 4(1)(h)�� 445 Annexes III-IV�� 445 Annex V, Art 2(b)�� 445 Agreement on Subsidies and Countervailing Measures (the SCM Agreement) 1995 �� 910, 911 Art 1.1(a)(1)(ii) �� 911 Art 1.1.(b)�� 911 Art 3�� 911 Art 5�� 911 Arts 8.1, 8.2�� 911 Art 31�� 911 Agreement for Cooperation for the Sustainable Development of the Mekong River Basin 1995�� 431 Convention to ban the importation into Forum island countries of hazardous and radioactive wastes and to control the transboundary movement and management of hazardous wastes within the South Pacific Region 1995 (Waigani Convention) 2161 UNTS 91, 620 Agreement on the Application of Sanitary and Phytosanitary Measures 1995 (WTO) ��481 Protocol concerning Specially protected Areas and Biological Diversity in the Mediterranean 1995�� 470 Convention on the Protection of the Alps 1996 �� 470 International Covenant on Civil and Political Rights 1996 ��1050, 1174 International Covenant on Economic, Social and Cultural Rights 1996 ��1050 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea 1996 ��1028 Convention on Supplementary Compensation for Nuclear Damage 1997��1027 Declaration of Thessaloniki (UNESCO) 1997��955 Kyoto Protocol to the Framework Convention on Climate Change 1997�� 75, 269, 316, 447, 456, 536, 537, 541, 545, 571, 1163, 1180, 1181 Preamble, paras 2, 4�� 456 Art 2(a)(iii)�� 5447 Arts 3, 5�� 447 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses 1997��432

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table of legislation xxxix Protocol to amend the Vienna Convention on Civil Liability for Nuclear Damage 1997, 2241 UNTS 270��1027 Art 1(i)(k) ��1028 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters 1998, 2161 UNTS 447 ��155, 192, 208, 209, 210, 355, 368, 369, 370, 734, 803, 896, 982–3, 984, 985–8, 1049, 1063, 1077, 1087, 1089, 1168, 1178, 1170 Preamble paras 3, 6�� 986 para 16�� 987 Recitals�� 733 Art 2(3), paras (a)-(c)�� 987 Art 3�� 733 Art 3(4) �� 982 Art 3(7) ��983 Art 4�� 734, 987 Art 5�� 734, 987 Art 5(3)�� 987 Art 9��370, 733 Art 9(2)�� 1178 Art 10(5) �� 982 Art 15�� 987 Art 19(3)��983 Rotterdam Convention on Prior Informed Consent 1998 ��307 Convention for the Unification of Certain Rules Relating to International Carriage by Air 1999, 2242 UNTS 309 (Montreal Convention)��1028 Protocol to the 1979 Convention on Long-Range Trans-boundary Air Pollution on the Reduction of Acidification, Eutrophication and Ground-Level Ozone 1999�� 405 Cartagena Protocol on Biosafety to the Convention on Biological Diversity 2000, 2226 UNTS 208��167, 512, 514, 519, 520, 1028 Art 1�� 512, 661 Art 18(2)��524 Art 27��1028 Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean 2000, 1102 UNTS 27 (EU Natura 2000)��467, 473 Millennium Declaration 2000��425

International Convention on Civil Liability for Bunker Oil Pollution Damage 2001��1027 Stockholm Convention on Persistent Organic Pollutants 2001�� 307, 592 Annex A ��592 ASEAN Agreement on Transboundary Haze Pollution 2002 ��400 UN World Summit on Sustainable Development, Johannesburg Declaration on Sustainable Development 2002��662, 1175 Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes and to the 1992 Convention on the Transboundary Effects of Industrial Accidents 2003 ��1028 International Convention for the Control and Management of Ships’ Ballast Water and Sediments 2004 ��481 Art II(1)��481 International Treaty on Plant Genetic Resources for Food and Agriculture, Food and Agriculture Organization 2004��529 Art 9��529 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade 2004�� 591 Framework Convention on the Protection and Sustainable Development of the Carpathians 2006��471 United Nations Declaration on the Rights of Indigenous Peoples 2007��111, 457–8, 892 Millennium Assessment 2008 �� 434 ASEAN Agreement on Transboundary Haze Pollution 2009��303 Bonn Declaration 2009��955, 956 Kiev Protocol to Pollutant Release and Transfer Registers 2009, 26 UNTS 119�� 990–1 Art 4��991 Art 7, 7(5) and (6)��991 International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea 2010��1028 Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biosafety 2010��1028 Art 12��1028

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xl table of legislation Tirana Declaration 2011�� 442 ASEAN Human Rights Declaration 2012 ��1054 Art 28��1054 Minamata Convention on Mercury 2013 Art 4(1) ��777 World Soil Charter 2014 �� 451 Paris Agreement 2015�� 178, 186, 240, 269, 316, 411, 447–8, 853, 1110, 1163 Art 2��447–8 Art 9�� 29 United Nations Sustainable Goals 2015�� 425, 443, 446, 451–3, 492, 848, 995, 956, 957 Goal 2�� 443 Goal 4��957 Goal 14.5 �� 848 Goal 15�� 452, 453, 458 IUCN World Declaration on the Environmental Rule of Law 2016 �� 98, 663 Agreement for Cooperation Between the Government of the United States of America and the Government of India Concerning Peaceful Uses of Nuclear Energy (123 Agreement) 2016 �� 570 African Convention on the Conservation of Nature and Natural Resources 2017��450–1 Art V 1�� 450 Art II �� 450 Art III��450–1 Art VI�� 451 Escazu Agreement on Access to Information, Participation and Justice in Environmental Matters in Latin America and the Caribbean 2018��1063 United States-Mexico-Canada Agreement 2018��126

Domestic Instruments Angola Legislation Constitution of the Republic of Angola 1992 Art 24�� 463

Argentina legislation Constitution of Argentina 1853 Art 41��463, 536

Civil Code Art 1757 2015��1030 Arts 1758 2015��1030 Decree-law 18.594/70�� 466 Law on Seeds and Phytogenetic Creations [Ley de Semillas y Creaciones Fitogéneticas [L.S.]], Ley 20247, Boletin Oficial [B.O.], 30 March 1973�� 514 Ley No. 24.295, 11 de enero de 1994, [LIV-A] A.D.L.A. 1994��536 Ley No. 25.438, 20 de junio de 2001 [LXI-D] A.D.L.A. 4022��536 Ley No. 26.190, B.O. 2.1.2007 (Framework for the National Promotion for the Production and Use of Renewable Sources of Electric Energy)��536 Law on the Promotion of the Development and Production of Modern Biotechnology [Ley de Promoción del Desarrollo y Producción de la Biotecnología Moderna [L.B.], Ley 20270, B.O, 25 July 2007�� 514 Ley No. 26.331, 19 de diciembre de 2007 [LXVIII-A] A.L.D.A (Minimum Standards for the Environmental Protection of Native Forests)��536 Ley No. 25.675, B.O. 28.11.2002 (General Environmental Act)��536 s 27��1031 Ley No. 27.191, B.O. 21.10.2015��536 Buenos Aires Law 14,343 Art 3��633 Regulations Decreto No. 822/1998. 34 ��536 Decreto No. 2213/2002 (Designating Secretary of the SAyDS Implementing Authority for Law No. 24.295 (UNFCCC ratification)��536 Decreto No. 1070/2005. 35 ��536 Resolution No. 98/2007 and 1973/2007 issued by the Secretariat of Finance and the Secretariat of Environment and Sustainable Development��641 Consejo Federal del Medio Ambiente, Resolución No. 166 de 1 de april de 2009��536 Resolución No. 195 de 4 de septiembre de 2010 ��536

Australia Legislation Constitution of Australia��435

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table of legislation xli Forestry Act 1920 (Tas) s 7��71 s 8(1)(c) ��71 Soil Conservation Act 1938 (NSW)�� 439, 456 Soil and Land Conservation Act 1945 (WA)�� 456 Environment Protection Act 1970 (Vic) s 1A(3) �� 67 ss 1C and 1D �� 67 ss 1G, 1H and 1L �� 67 s 4(1)�� 66 s 16�� 67 s 39(1)�� 66 s 39(2)�� 66 Environment Protection (Impact of Proposals) Act 1974��61 National Parks and Wildlife Act 1974 (NSW)��68, 69 s 30A(1)�� 69 s 41�� 69 s 45(1)(a) �� 69 s 98(2)(a)�� 69 s 118A(1) and (2)�� 69 s 118C(1)�� 69 s 151�� 69 Pt 9�� 69 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5�� 896 Environmental Planning and Assessment Act 1979 (NSW)�� 79 s 5(a)(vii)��71 s 85A�� 741 s 85A(3)�� 741 s 112(1)(a)�� 76 Pt 4A �� 741 Freedom of Information Act 1982 (Cth)��734 World Heritage Properties Conservation Act 1983 (Cth)��62, 63 Environmental Protection Act 1986 (WA) s 3��633 Planning and Environment Act 1987 (Vic) s 4(1)��72 s 6(1)��72 s 12(2)��72 Wilderness Act 1987 (NSW)��68–9 s 9�� 69 Crown Lands Act 1989 (NSW) s 11�� 70 s 11(a), (b) and (e)��71 Water Act 1989 (Vic) s 1 �� 64 s 32A(1) ��65

Protection of the Environment Administration Act 1991 (NSW) s 6��723 s 6(2) ��659, 664 s 6(2)(a)��661 s 6(2)(d)�� 659 s 6(2)(d)(i)��739 Development Act 1993 (SA) s 3(c)��71 Environment Protection Act 1993 (SA)��611, 614 ss 4(2), 4A��614 ss 36–47�� 611 s 64A �� 611 Pt 8�� 617, 622 Sch 1�� 611 Environment Protection Act 1994 (Qld)��64, 67–8 s 3�� 68 s 5�� 68 s 8�� 67 s 9�� 67 s 14�� 67 ss 15–17�� 67 s 121(1)(f)�� 64 s 493A �� 67 s 505(1)��77 Aircraft Noise Levy Act 1995��916–17 Threatened Species Conservation Act 1995 Pt 7AA�� 486 Contaminated Land Management Act 1997 (NSW) s 5�� 637, 641 s 5(1)��635 s 6��633 Pt 4�� 740 Environment Protection Act 1997 (ACT) �� 745–6 s 74�� 76 Rural Fires Act 1997 (NSW)��744 ss 100Q-100R ��744 Protection of the Environment Operations Act 1997 (NSW)�� 612, 613, 727–8, 974 s 72��739 ss 91, 95, 96, 101, and 104��77 ss 115, 116, 142A, 143–145 ��612 s 175 �� 740 s 250 (1)(d)�� 740 Pt 6.3 �� 740 Ch 3 ��612 Sch 1, paras 9, 12, 16, 34, 36, 39, 40, 41, 42, 47, and 48��612

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xlii table of legislation Environmental Planning and Assessment Act 1999 (NSW) s 79C(1)(e)�� 664 Environment Protection and Biodiversity Conservation Act 1999 (Cth)��61, 64, 894, 897, 1169 s 3A(a), 3A(e) �� 659 ss 12–55��883 s 24D �� 64 s 85�� 886 s 134 ��895 ss 137–140�� 894 s 487(2) �� 897 Renewable Energy (Electricity) Act 2000 (Cth) ss 1(c), (e), (g), (h), and (i) ��74 s 3��74 s 17 (1), (2), (3), and (4)��74 Sch. 1 ��74 Water Act 2000 (Qld) �� 64 Carbon Credits (Carbon Farming Initiative) Act 2001 (Cth) s 3(2)��75 Waste Avoidance and Recovery Act 2001 (NSW)��615, 618, 622, 623 s 3(b) �� 615 s 3(e)��622 s 8(1)��622 ss 15–17��623 Pt 5��622 Contaminated Sites Act 2003 (WA)��635, 637, 641 s 4 �� 633, 635 Legislation Act 2003 (Cth) ��723 Petroleum and Gas (Production and Safety) Act 2004 (Qld) s 3(1)(a) �� 63–4 Offshore Petroleum and Greenhouse Gas Storage Act 2006��74–5 Water Act 2007 (Cth)��65, 435 s 9��65 s 21 ��435 s 35 ��65 s 36��65 Government Information (Public Access) Act 2009 (NSW) ��734 Carbon Credits (Carbon Farming Initiative) Act 2011��74 Clean Energy Regulator Act 2011 (Cth)��722 s 11(1) ��722 s 12 ��722 s 13 ��722

Heritage Act 2011 (NT) s 3(1)(a) �� 70 s 10�� 70 s 11�� 70 s 12(1)�� 70 ss 17 and 18 �� 70 s 139(3)�� 70 Pt 3.1. �� 70 Pt 3.2. �� 70 Forestry Act 2012 (NSW) ��727 Environment Protection and Biodiversity Conservation Amendment Act 2013 (Cth) Sch. 1 �� 64 Biodiversity Conservation Act 2016 s 6.10–6.13�� 741 s 6.17�� 741 s 6.19�� 741 Pt 5, Div 3 and 4��744 Pt 6, Div 2, 3 and 4�� 741 Waste Avoidance and Resource Recovery Amendment (Container Deposit Scheme) Act 2016 (NSW) ��745 Climate Change Act 2017 (Vic) ��75 ss 23 and 24��73 Environment Protection (Waste Reform) Amendment Act 2017 (SA) ��614 Regulations Environmental Planning and Assessment Regulation 2000 (NSW) cl 6(f)��742 cl 85B��734 cl 273��742 Pt 8�� 741 Environment Protection and Biodiversity Conservation Regulations 2000, Statutory Rules No. 181, 2000 Sch. 4, s. 4.01(d)��895 Threatened Species Conservation (Biodiversity Banking) Regulation 2008�� 486 Protection of the Environment (Waste) Regulation 2014��618 Cl 71��618 Administrative Arrangements Order 2015 (Cth) Pt 7 �� 726 Administrative Arrangements (Administrative Changes—Public Service Agencies) Order (No. 2) 2015 (NSW)�� 726 Administrative Arrangements (Administrative of Acts—General) Order 2015 (NSW) �� 726

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table of legislation xliii Administrative Arrangements (Administrative Changes—Public Service Agencies) Order (No. 2) 2015 (NSW)�� 726 Australia New Zealand Food Standards Code 2016��514, 523

Austria Legislation Civil Code § 364a�� 1032 § 1032��1034 § 1295��1029 § 1326��1036 Gene-technology Act § 79a–79m��1030 Wasserrechtsgesetz (Water Law) § 26��1030 § 26(5) �� 1035

Belgium Legislation Civil Code Art 1384(1)��1030 Decree of the Flemish Parliament of 27 October 2006, relating to soil clean-up and soil Protection, as amended�� 643 Walloon Soil Management Decree, 5 December 2008��633, 637, 641

Bolivia Legislation Decree-Law 12301, on wildlife, national parks, hunting and fishing Art 2��474 Law of the Rights of Mother Earth 2010�� 1060 Framework Law of Mother Earth and Integral Development for Living Well 2012�� 1060

Brazil Legislation Constitution of Brazil Title II, Ch I, Art 5, para 73��1078 Tiutle VII, Ch 6, Art 225��1078 Civil Code 2002 ��1030 § 927��1029, 1030 § 936, 937, 938��1020 § 1277�� 1032

Water Code 1934��85 Criminal Code, Código Penal, Decreto-Lei No. 2.848, de 7 de dezembro de 1940��85 Forest Code, Lei No. 4.771, de 15 de setembro de 1965 (superseded by Lei No. 12.651, de 25 de maio de 2012��90, 93, 94, 96 Art 3, IV and 4 �� 96 Hunting Code, Lei No. 5.197, de 3 de janeiro de 1967 �� 90 Mining Code, Decreto-Lei No. 227, de 28 de fevereiro de 1967 �� 90 National Environmental Policy Act, Lei No. 6.938, de 31 de agosto de 1981��90–2, 639 Art. 3, and Art 3, I, 3, III, 3, V, Art. 3, IV��91 Arts 8, II and 9, III�� 92 Art 14�� 91, 92, 1039 Art. 14, § 1��91, 1031 Public Civil Action Act, Lei No. 7.347, de 24 de julho de 1985��90, 101 Art 5��1039 Art 13��1039 Fauna Protection Act, Lei de Proteção à Fauna, 1988 (renaming Hunting Code)�� 90 Lei No. 7.735, de 22 de fevereiro de 1989 �� 99 Art 2�� 99 Consumer Protection Code (Law 8078/1990)��1030 Biosafety Law, No. 8.974 of 5 January 1995�� 517 National Water Resources Policy Act, Lei da Política Nacional de Recursos Hídricos, Lei No. 9.433, de 8 de janeiro de 1997��85, 97, 426 Environmental Crimes Act, Lei dos Crimes contra o Meio Ambiente, Lei No. 9.605, de 12 de fevereiro de 1998�� 85, 97, 1130 Arts 2, 22, 29–69��97 Art 54(3) ��674 Ch V��97 Federal Constitution, Constituição da República Federativa do Brasil de 1998��84–5, 87, 94, 102–3, 106, 675 Art 5, LXXIII�� 89 Art 20�� 84 Art 20, § 1 �� 84 Art 20, III and IX�� 84 Art 23�� 86 Art 24, VI ��85, 93 Art 26�� 84

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xliv table of legislation Art 41��637 Art 103–A ��102 Art 105, III�� 101 Art 127, §§ 2, 3�� 101 Art 129�� 101 Art 129, caput, III�� 89 Art 170, cl. VI�� 89 Art 174, § 3�� 89 Art 176 �� 94 Art 186, II �� 88 Art 200, cl. VIII �� 89 Art 216, cl. V�� 89 Art 220, § 3, cl. II �� 89 Art 225��105, 518, 674 Art 225, caput��85, 87 Art 225, para 1��87 Art 225, para 4��105 Art 231, § 1�� 88, 89 Lei No. 9.985, de 18 de julho de 2000�� 96 Art 21�� 96 Civil Code, Código Civil, Lei No. 10.406, de 10 de janeiro de 2002��85, 104 Art 1228, § 1��104 Biosafety Law, No.11, 105 of 24 March 2005 �� 518 Art 1��674 Lei No. 11.428, de 22 de dezembro de 2006 ��96 Lei No. 11.516, de 28 de agosto de 2007�� 100 Art �� 100 Environmental Code of the State of Santa Catarina, Lei 14.675, 2009��85 Lei Nº 12.187, de 29 de Dezembro de 2009, Diário �� 97, 534 National Solid Waste Act, Lei No. 12.305, de 2 de agosto de 2010 �� 98, 622 Arts 3 and 6��622 Complementary Act 140, Lei Complementar No. 140, de 8 de dezembro de 2011 �� 100 Art 3�� 86 Arts 7, 8, 9 and 13 �� 86 Forest Code, Código Florestal, Lei No. 12.651, de 25 de maio de 2012�� 85, 88, 93–6, 99, 103, 104, 105 Art 4, III and 4, § 2�� 99 Art 12��95 Arts 29–30��95 Art 61–A, § 14�� 99 Art 70, I-III�� 9 Lei No. 12.805, de 29 de Abril de 2013, Diário Oficial da União [D.O.U.], Seção 1, 30.04.2013 �� 551

Forest Code of the State of Minas Gerais, Lei Estadual No. 20.922, de 16 de outubro de 2013 ��85, 93 Civil Procedure Code of 2015��102 Regulations Environmental Impact Assessment (CONAMA Regulation No. 1 of 1986 and No. 237 of 1997) �� 92–3 Art 2, 3, and 8�� 92 Art 2, Annex 1�� 92 Art 9��93 Decreto No. 4.680, de 24 de Abril de 2003 �� 523 Normative Resolution No. 5, of 12 March 2008 �� 158 Art 20, para 2 �� 518 Decreto No. 6.660, de 21 de novembro de 2008�� 96 National Environmental Council Resolution No. 420/2009��633, 641 Decreto Nº 7.390, de 9 de Dezembro de 2010 ��534 Decreto No. 7.819, de 3 de October de 2012�� 560 Decreto No. 8.437, de 22 de abril de 2015 Art. 3, caput, VI �� 86

Canada Legislation Constitution Act, 1867, 30 & 31 Vict., c. 3 �� 693 s 91, 92�� 908 s 91(2A), 91(10), 91(12), (24), 92(8), (10), (13), (16), 92A, and 109 ��112 Charter of Human Rights and Freedoms, CQLR, c. C-12 s 46.1 Constitution Act, 1982 (Sch. B to the Canada Act 1982 (UK) c. 11 s 35 �� 110 Canada Oil and Gas Operations Act, RSC 1985, c. O-7 s 2.1��120 Food and Drugs Act, RSC, 1985, c.F-27�� 523 National Energy Board Act, RSC 1985, c. N-7 s 48.11��120 Environmental Rights Act, RSNWT 1988, c. 83 (Supp), (Northwest Territories) s 5��126 Environmental Protection Act, RSO 1990, c. E.19, s. 14 (Ontario)��115

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table of legislation xlv Civil Code of Quebec, CQLR c. CCQ-1991�� 118 ss 976, 1457, 1465�� 118 Canadian Environmental Assessment Act 1992 c. 37 s 16�� 889 Ontario Environmental Bill of Rights, SO 1993, c. 28 ��113 s 84��126 Migratory Birds Convention Act, 1994, SC 1994, c. 22 s 13.09��120 Environment Act, SNS 1994–95, c. 1, (Nova Scotia) s 2��120 Mackenzie Valley Resource Management Act, SC 1998, c. 25 (Northwest Territories) �� 116 Canadian Environmental Protection Act, 1999, SC 1999, c. 33��537, 560, 591, 610 s 2�� 890 s 2(1)��120 s 22��126 ss 64–103��115 s 71�� 591 s 76.1��120 s 93��592 s 287��120 Pt 7��610 Environment Act, RSY 2002, c. 76, (Yukon Territory) s 8��126 Pest Control Products Act, SC 2002, c. 28 ss 7, 19��120 s 20��120 Species at Risk Act, SC 2002, c. 29 s 38��120 Act to amend the Criminal Code (criminal liability of organizations), S.C. 2003, c. 21 �� 125 Yukon Environmental and Socio-Economic Assessment Act, SC 2003, c. 7 �� 116 Environmental Management Act 2003 s 39��633 ss 45–47��637 s 56��641 Div 3��637 Emission Reduction Incentives Agency Act, S.C. 2005, c. 30 s 87�� 537 Endangered Species Act, SO 2007, c. 6, (Ontario) s 11(3)��120

Environmental Goals and Sustainable Prosperity Act, SNS 2007, c. 7 (Nova Scotia)��121 Carbon Tax Act, 2008 S.B.C, ch. 40 (British Columbia)�� 540–1, 548, 920, 921–2 Federal Sustainable Development Act, SC 2008, c. 33�� 121, 823, 827 ss 9–11��823 Environmental Enforcement Act, SC 2009, c. 14��120 Toxics Reduction Act, 2009, SO 2009, c. 19 (Ontario) ��115 Environmental Enforcement Act, SC 2009, c. 14� 120 Toxics Reduction Act, 2009, SO 2009, c. 19 (Ontario) ��115 Canadian Environmental Assessment Act, 2012, SC 2012, c. 19�� 884, 888 s 2�� 890 s 2(2)�� 898 s 4(2) ��120 s 38(2)��891 s 43(1)��891 s 52��116, 120, 883 s 53(4)(b)��895 s 54, 93��895 s 86(1)(a)��893 Nunavut Planning and Project Assessment Act, SC 2013, c. 14 s 2�� 116 Protection of Public Participation Act, 2015, SO 2015, c. 23 (Ontario) �� 119 Resource Recovery and Circular Economy Act, 2016, SO 2016, c. 12, Sch. 1 (Ontario) ��115 Cutting Unnecessary Red Tape Act, 2017, SO 2017, c. 20 (Ontario) ��115 Regulations Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada (25 May 1993)�� 110 Code of Civil Procedure, CQLR c. C-25.01 (Quebec) ss. 51–56�� 119 Order Adding Toxic Substances to Schedule 1 to the 1999 Canadian Environmental Protection Act, SOR/2005–345 �� 537 Passenger Automobile and Light Truck GHG Emissions Regulations, SOR/2010–201 �� 537, 560

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xlvi table of legislation Prohibition of Certain Toxic Substances Regulations, SOR/2012–285��592 Schs 1, 2��592 Reduction of Carbon Dioxide Emissions from Coal-fired Generation of Electricity Regulations, SOR/2012–167�� 537 Heavy-duty Vehicle and Engine Greenhouse Gas Emission Regulations, SOR/2013–24 560 Regulations Amending the Passenger Automobile and Light Truck Greenhouse Gas Emission Regulations, SOR/2014–207�� 537

Chile Legislation Ley No. 20.283, 11 de julio de 2008, Diario Official [D.O.], sobre Recuperación del Bosque Nativo y Fomento Forestal [Law of Recuperation of Native Forest and Promotion of Forests]�� 551 Ley No. 20–936, de 20 de julio de 2016, Diario Official [D.O.], establece un Nuevo Sistema de Transmisión Eléctrica y crea un Organismo Coordinador Independiente del Sistema Eléctrico Nacional [establishing a New System of Electricity Transmission and Creating an Independent National Electricity Coordinating Authority]��563

China Legislation Basic Law of the Hong Kong Special Administrative Zones 1990 Civil Procedure Law ��132, 136 Criminal Law �� 132, 135 s6, Ch 6�� 132 Criminal Procedure Law��132, 136 General Rules of Civil Law��132, 135–6 Law on Administrative Litigation ��132, 136 Law on Administrative Punishment��132, 136 Law on Public Servants of PRC ��146 Law on Supervision over Administration of the PRC��146 Legislation Law�� 134 Property Law��132, 136 Environmental Protection Law of PRC 1979�� 134 Art 5�� 820 Organic Law of the People’s Courts 1983��140 Arts 2, 7, 12 and 13��140

Air Pollution Prevention and Control Law of PRC 1988�� 411 Environmental Protection Law of PRC 1989��134, 138, 143, 519 Basic Law of the Hong Kong Special Administrative Zones 1990 Art 19�� 139 Basic Law of the Macao Special Administrative Zones 1993 Art 19�� 139 Air Pollution Prevention and Control Law of PRC 2000�� 411, 412, 413 Arts 18, 32–85 �� 411 Environmental Impact Assessment Law of PRC 2003 Art 5��891 Art 10�� 888 Arts 13, 14��893 Art 15��895 Art 16��887 Constitution of People’s Republic of China 2004��139, 411 Art 2��131 Art 6�� 130–1 Art 9��130 Art 26��130 Art 85�� 137 Art 125��140 Art 126�� 139 Art 127��140 Renewable Energy Law of the People’s Republic of China 2006, amended 2010�� 552 Circular Economy Promotion Law 2008 �� 624 Prevention and Control of Water Pollution of Law of PRC 2008 Art 20�� 426 Arts 29–30��423 Tort Law of 26 December 2009 (decree of the President of the People’s Republic of China No. 21)��1029 Art 65��1031 Art 66�� 1031, 1035 Art 67��1034 Ch VIII ��1031 Ch IX��1030 Law of Mongolia on Water 3.1.19 (2012) ��423 Environmental Protection Law of PRC 2014��132, 133–5, 137, 138, 144, 146, 398 Ch 1–6��135 Ch 5 ��144, 416 Arts 2–6 and 10��135

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table of legislation xlvii Art 9, para 3 ��144 Art 13�� 820 Art 13, para 2��823 Art 13, para 4��827 Art 27��144 Art 58�� 135, 141, 144 Air Pollution Prevention and Control Law of PRC 2016�� 398, 411–13, 414, 416 Art 1��412 Art 2��412 Art 4��412 Art 19��412 Art 21��412 Art 32�� 413 Art 44��412 Art 99��412 Art 102��412 Wildlife Protection Law of the People’s Republic of China 2016�� 463 Art 3��474 Regulations Regulations on Administration of Agricultural Genetically Modified Organisms Safety, promulgated by State Council, 23 May 2001, revised 8 January 2011�� 519 GB 27999–2011 (imposing per-vehicle emissions limits and corporate average fuel consumption standard)�� 560 GB XXXXX-2016, Fuel consumption limits for heavy-duty commercial vehicles [Stage 3] (4 April 2016)�� 560

Costa Rica Legislation Constitution of Costa Rica Art 7�� 1166 Law 7317, on the conservation of wildlife Art 3��474 Regulations Measures for the Accountability of the Party and Government Leading Cadres in the Ecological Environment Damage (for Trial Implementation, 2015) �� 145

Czech Republic Legislation Constitution of the Czech Republic Art 35(2)��1078

Denmark Legislation Soil Contamination Act, Consolidated Act no. 1427��633, 641 ss 41 and 48��637

Dominican Republic Pesticides Control Amendment Act �� 1169 Water and Sewerage Act �� 1169

Ecuador Constitution of the Republic of Ecuador 2008�� 1060, 1062

Egypt Legislation Law No. 4 of 1994 (Environmental Law) Article 1(7)�� 633, 637

European Union Treaties European Coal and Steel Community 1952��151 EURATOM Treaty 1957�� 206 Treaty of Rome 1957��151, 1177 Art 100�� 152 Art 164��164 Art 235�� 151, 151 Accession Treaty 1972�� 498 Art 102�� 498 Single European Act 1986��152, 691, 1085 Arts 2–3��153 Art 25�� 152 Art 130 r-t �� 152–3 Treaty of Maastricht 1992 ��153, 691 Treaty of Amsterdam 1997�� 153, 1140 Arts 2–3��153 Art 12��658 EU Charter of Fundamental Rights 2000��1055, 1153 Art 17(1)��485 Art 37�� 658, 672, 1055 Art 52(5)��672 Treaty of Lisbon 2007�� 151, 153, 502, 1055, 1085 Treaty on European Union 2012��153, 658 Recital 9��658 Art 3�� 355 Arts 3(3), (5), 21(2)��658

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xlviii table of legislation Art 5��540, 853 Art 5, paras 3 and 4 ��691 Art 6�� 172 Art 19(1)��164 Treaty on the Functioning of the European Union 2012�� 153, 499, 658, 909 Art 2(1), 3(1)(d), 4(1), (2)(d)��496, 499 Art 3(3)��164 Art 11 �� 154, 658 Art 14��196–7 Art 19(1)��153 Art 34�� 694 Art 35�� 694 Art 38�� 499 Art 43(3) �� 499 Art 101��1156 Art 107, 108�� 908 Art 113 �� 908 Art 114��695, 696 Art 114(5)��865 Art 115 ��152, 908 Art 191 �� 152–3, 192, 406, 513 Art 191(1)��153 Art 191(2)��153, 154, 355, 670, 906 Art 191(3)��153 Art 191(4)��153 Art 192�� 152–3, 696, 699 Art 192(1)��153, 661 Art 192(2)(c)�� 942 Art 193�� 152–3, 196, 699 Art 258��671 Art 263��671 Art 267��671 Art 289��153 Art 352��151, 152 Directives EC Directive 67/548 relating to the Classification, Packaging, and Labelling of Dangerous Substances, OJ 1967 L 196/1�� 151, 1000 EC Directive 70/157 relating to the Permissible Sound Level and the Exhaust System of Motor Vehicles, OJ 1970 L 42/16 ��151, 152 EC Council Directive 70/220/EC [1998] OJ L350/1�� 197, 403 EC Directive 73/404 relating to detergents, OJ 1973 L 347/51�� 152 EC Directive 76/464 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community, OJ 1976 L 129/23 �� 152 EC Directive 77/102, OJ 1977 No. L32 �� 403

EC Directive 78/319 on toxic and dangerous waste, OJ 1978 L 84/43�� 152 EC Directive 78/1015 on the permissible sound level and exhaust system of motorcycles OJ 1978 L 349/21�� 152 Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds [1979] OJ L103/1 (now consolidated as Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds [2010] OJ L20/7) and Council Directive 92/43/ EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora [1992] OJ L206/7��434, 462–3, 840, 849, 1085 Art 1�� 463, 464 EC Directive 82/501 on the major-accident hazards of certain industrial activities, OJ 1982 L 230/1�� 152 Directive 84/360 /EC on the combating of air pollution from industrial plants, OJ 1984 L 188/20�� 152, 402 EC Directive 84/631/EC, 20 December 1984 on Transfrontier Shipment of Hazardous Waste ��619 EC Directive 85/210 concerning the lead content of petrol, OJ 1985 L 96/25�� 152 EU Council Directive 85/337 on the Assessment of the Effects of Certain Public and Private Projects on the Environment, [1985] OJ 1 175/40, subsequently amended by EC, Council Directive 97/11, EC, Council Directive 03/35, and EC, Council Directive 09/31�� 880, 896, 897, 1087 Art 1(2)(e)�� 890 Art 3�� 890 Art 5��887, 889 Annex 1�� 886 Council Directive 85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products [1985] OJ L210/29, as amended by Directive 1999/34/EC of the European Parliament and of the Council of 10 May 1999 [1999] OJ L141/20�� 1032, 1103 Art 6��1103 Art 7(d)�� 1041 Directive 88/609/EC on the control and limitation of air emissions from large combustion plants �� 402

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table of legislation xlix Directive 89/369/EC on the incineration of municipal waste�� 402 Directive 89/429/EC on the incineration of municipal waste�� 402 Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources [1991] OJ L375/1��203 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora�� 154, 160–1, 205, 364, 434, 463, 464, 467, 471, 472, 478, 486, 635, 698, 849 Art 1(c)(ii)��471 Art 4�� 698 Art 4(1) �� 467 Art 6(3) ��845 Art 6(4)�� 486 Art 16�� 486 Art 16(1)�� 480 Annexes II, IV and V�� 476 Directive 94/62/EC of 20 December 1994 on packaging and packaging waste, 31.12.1994, OJ L 365/10�� 154, 158–9, 204, 617, 621, 624 Art 4(2)�� 472 Arts 5 and 7�� 204 Arts 9(e)(i) �� 472 Art 10�� 472 Directive 94/63/EC on the control of volatile organic compound (VOC) emissions resulting from the storage of petrol and its distribution from terminals to service stations, OJ 1994 No. L365 403��617 Directive 96/59 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/ PCT) [1996] OJ L243/31, amended in 2009: [2009] OJ L188/25 ��617 Council Directive 96/61/EC of 24 September 1996 concerning Integrated Pollution Prevention and Control [1996] OJ L257/25 �� 198, 199, 207, 402, 863 Art 9�� 207 Directive 96/62/EC of 27 September 1996 on ambient air quality assessment and management, OJ 1996 No. L296�� 404, 405 Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions��528 Preamble��528 Art 3(2) ��528

Directive 98/69/EC of the European Parliament and of the Council of 13 October 1998 relating to measures to be taken against air pollution by emissions from motor vehicles and amending Council Directive 70/220/ EEC [1998] OJ L350/1 �� 197 Directive 98/70/EC relating to the quality of petrol and diesel fuels, OJ 1998 No. L350, as amended by Directive 2015/1513/EU, OJ 2015 No. L 239�� 403 Directive 1999/30/EC relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead in ambient air, OJ 1999 No. L163 �� 404 Council Directive 1999/31/EC, O.J. (L 182), 16.7.1999, (landfill of waste) ��552, 624 Directive 2000/53 [2000] OJ L269/34, on End-of-Life Vehicles��617, 621 Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for the Community action in the Field of Water Policy, OJL 327��159–60, 201–2, 207, 361, 423–4, 449, 698, 869, 870 Art 1�� 159–60 Art 1(a), (c)��421 Art 3��873 Art 8�� 870 Art 10��201 Art 11 �� 869 Annex V ��873 Annex VII, A 2�� 870 Directive 2000/69/EC of the European Parliament and of the Council of 16 November 2000 relating to limit values for benzene and carbon monoxide in ambient air, OJ 2000 No. L313�� 404 Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220�� 513, 516 Art 12(1), (3) ��865 Art 23��865 Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment, OJ L 197, 21/07/2001��156, 884–5, 896, 974 Art 3(2)(a)��885 Arts 6 and 8��885

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l table of legislation Directive 2001/81/EC on national emission ceilings for certain atmospheric pollutants, OJ 2001 No. L309/22��404, 405 Council Directive 2002/91, O.J. (L 1)��557, 1085 Directive 2003/2/EC relating to restrictions on the marketing and use of arsenic (tenth adaptation to technical progress to Council Directive 76/769/EEC), OJ 2003 No. L004 404 Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC��155, 973, 978, 983 Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC��155, 192, 208 Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, OJ 2003 No. L275 �� 415, 547, 1085 Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, 2003 O.J. L 283/51�� 908, 912 EC Directive 2004/35/CE of the European Parliament and of the Council on 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, 30 April 2004, OJ L 143/56��154, 156–7, 163, 176, 205, 848, 1040–1, 1095 Arts 2(1), 8(2)–(4) �� 157 Art 8(3)(b)�� 1041 Art 12��716 Art 14(2) �� 157 Art 16�� 157, 1041 Annex II �� 1040 Arts 5–6�� 848 Annex III�� 1040 Directive 2004/107/EC relating to arsenic, cadmium, mercury, nickel and polycyclic aromatic hydrocarbons in ambient air, OJ 2005 No. L23�� 404

EU Directive 2006/21 on the Management of Waste from Extractive Industries and amending Directive 2004/35, [2006] OJ L102��617 Council Directive 2006/40/EC, O.J. (L 161/12), 12–18, 17.05.2006 (regulating emissions from air conditioning systems in motor vehicles) �� 553 Directive 2006/66/EC (6 September 2006) on Batteries and Accumulators��617, 621 Council & Parliament Regulation (EC) 2006/1907 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) (precautionary principle)�� 670 Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control, Integrated into Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions��339 Directive 2008/50/EC of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe�� 162, 178, 360, 404, 405, 698, 777 Art 4�� 868 Art 6�� 868 Art 13�� 766 Art 23�� 405 Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy �� 870–1 EC Directive 2008/98/EC on waste and repealing certain Directives, 19 November 2008, (22.11.2008) OJ L 312/3��157–8, 203, 345, 552, 609–10, 611, 612, 613, 615, 624, 697, 1123 Recital 30�� 670 Art 1(5)�� 620 Art 2��614 Art 3�� 157 Art 3(1)��362, 613, 1123 Art 3(12)��617 Arts 3(13), (15), (16), (17), and (19)�� 615 Art 4�� 158 Art 4(1)(a)��617 Art 4(1) �� 615 Art 4(2)��612, 670 Art 5(1), 6�� 613 Art 8��621

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table of legislation li Arts 10–20��616 Art 11 �� 698 Art 14(1)�� 670 Arts 14(3) and 15��619 Art 16��618 Arts 17–20�� 620 Art 23��610 Art 29��610, 617 Art 30��617 Art 33�� 610, 620 Annex IV��618 Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law�� 163, 175, 179 Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community�� 161, 162, 573, 1125, 1130 Directive 2008/105/EC on environmental quality standards for surface waters��201 Council Directive 2009/31 O.J. (on the geological storage of carbon dioxide)��568 Directive 2009/125/EC establishing a framework for the setting of ecodesign requirements for energy-related products, OJ 2009 No. L285�� 404 Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds��154, 160–1, 364, 471, 475, 476, 478, 777 Art 1�� 476 Art 4(1) ��471 Council Directive 2010/31, O.J. (L 153) (regarding the energy performance of buildings) �� 557 Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) [2010] OJ L334/17 ��163, 198, 359, 402–3, 863 Art 3(10)(b)�� 862 Art 5(2) ��863 Art 6�� 207 Art 13(2)(a)�� 862 Art 25��368 Directive 2011/92/EU of the European Parliament and of the Council of

13 December 2011 on the assessment of the effects of certain public and private projects on the environment��154, 156 Annex 4, para 7��975 Directive 2012/19/EU (4 July 2012) on Waste Electrical and Electronic Equipment ��621 Council Directive 2012/27, amending Council Directives 2009/125 and 2010/30 and repealing Directives 2004/8 and 2006/32) ��557, 1085 Council Directive 2014/95, O.J. (L 330), 15.11.2014, 1 (amending Council Directive 2013/34/EU regarding disclosure of non-financial and diversity information by certain large undertakings and groups)��550 Directive 2015/720 of the European Parliament and of the Council of 29 April 2015 Amending Directive 94/62/EC as Regards Reducing the Consumption of Lightweight Plastic Bag Carriers, 2015 O.J. (L 115/11)��916 Directive 2016/2284 on the reduction of national emissions of certain atmospheric pollutants, amending Directive 2003/35/EC and repealing Directive 2001/81/EC, OJ 2016 No. L344��405, 698 Regulations Council Regulation (EEC) No. 729/70 of 21 April 1970 on the financing of the common agricultural policy (OJ 1970 No. L94/13)�� 498 Council Regulation (EEC) 2141/70 of 20 October 1970 laying down a common structural policy for the fishing industry (OJ 1970 No. L236/1)�� 498 Council Regulation (EEC) 2057/82 �� 498 Council Regulation (EEC) 170/83 �� 498 Council Regulation (EEC) 171/83�� 498 Council Regulation 880/92/EEC on a Community eco-label award scheme, OJ 99 11.4.1992 �� 992 Council Regulation (EEC) 3760/92 Arts 5, 7(1) and 8(3)�� 498 Council Regulation (EEC) No. 2078/92 of 30 June 1992 on agricultural production methods compatible with the requirements of the protection of the environment and the maintenance of the countryside��846 Council Regulation (EEC) 2847/93 establishing a control system applicable to the common fisheries policy, OJ 1993 No. L261/1��498

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lii table of legislation Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein�� 482 Regulation (EC) 889/2002 of the European Parliament and of the Council of 13 May 2002 amending Council Regulation (EC) 2027/97 on air carrier liability in the event of accidents [2002] OJ L140/2��129 Council Regulation (EEC) 2371/02 �� Arts 2(1), (2)(g)(iv), 4(1), 5, 5(2), 6, 6(2), 7(1), 8(1)�� 498 Regulation (EC) No. 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed, OJ�� 513, 516, 522 Regulation (EC) No. 1830/2003 of the European Parliament and of the Council of 22 September 2003 concerning the traceability and labelling of genetically modified organisms and the traceability of food and feed products produced from genetically modified organisms and amending Directive 2001/18/ EC ��522 Regulation (EC) No. 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies��155, 166, 891–2, 897, 973, 983 Art 9��166 Art 9(3) �� 208 Regulation (EC) No. 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No. 793/93 and Commission Regulation (EC) No. 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/ EC and 2000/21/EC�� 94–8, 159, 344, 579, 582, 583, 586, 588, 589, 590, 591, 592, 593, 600, 602, 604, 605–6, 780 Preamble 3, 4, 7��594

Arts 3(3), 3(15)��585 Arts 10(1)(a), 10(a)(x), (b), 14(1)(3)��595 Art 57��597 Art 58��586 Art 58(3) ��597 Art 60��597 Art 68(1) ��598 Arts 69–73��598 Art 133(4)��598 Annex XIV, XV��597 Annex XVII ��598 Regulation (EC) 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to noncontractual obligations (Rome II Regulation) OJ L199/40 �� 1154, 1155, 1156 Art 4��1042 Art 4(1) ��1154 Art 4(2)��1154 Art 4(3) ��1154 Art 7��1042, 1150, 1154 Art 17��1154 Commission Regulation (EC) No. 692/2008 of 18 July 2008 implementing and amending Regulation (EC) No. 715/2007 of the European Parliament and of the Council on type-approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information [2008] OJ L199/1 �� 197, 403 Regulation (EC) No. 1272/2008 on Classification, Labelling and Packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No. 1907/2006 [2008] OJ L353/1 �� 784 Regulation 244/2009 on ecodesign requirements for non-directional household lamps ��1085 Regulation (EC) 392/2009 of the European Parliament and of the Council of 23 April 2009 on the liability of carriers of passengers by sea in the event of accidents [2009] OJ L131/24��1029 EC Regulation No. 443/2009, setting emission performance standards for new passenger cars, OJ 2009 No. L140.��361, 403, 560

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table of legislation liii Regulation (EC) No. 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No. 847/96, (EC) No. 2371/2002, (EC) No. 811/2004, (EC) No. 768/2005, (EC) No. 2115/2005, (EC) No. 166/2005, (EC) No. 388/2006, (EC) No. 509/2007, (EC) No. 676/2007, (EC) No. 1098/2007, (EC) No. 1300/2008, (EC) No. 1342/2008 and repealing Regulations (EEC) No. 2847/93, (EC) No. 1627/94 and (EC) No. 1966/2006�� 499 Regulation (EC) No. 66/2010 of the European Parliament and of the Council of 25 November 2009 on the EU Ecolabel OJ L21/31.01.2010�� 992 Commission Regulation (EU) No 459/2012 of 29 May 2012 amending Regulation (EC) No. 715/2007 of the European Parliament and of the Council and Commission Regulation (EC) No. 692/2008 as regards emissions from light passenger and commercial vehicles (Euro 6) �� 197 Commission Delegated Regulation 244/2012, O.J. (supplemental regulation providing a cost-effectiveness analysis methodology for choosing EPBD-compatible options that are optimal for a particular jurisdiction)�� 557 Regulation (EU) No. 528/2012 concerning the making available on the market and use of biocidal products �� 780 Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2012] OJ L351/1) ��1143, 1147, 1148 Art 4�� 1148–52 Art 7(2) �� 1042, 1153 Art 7(5) �� 1152–3, 1153–5 Regulation (EU) 1305/2013 of the European parliament and of the Council of 17 December 2013 on the support for rural development by the European Fund for Rural Development�� 712 Regulation 1306/2013 of the Council and the Parliament on the financing, management and monitoring of the Common Agricultural Policy (the ‘horizontal’ regulation)

Arts 91–101 �� 717 Annex II �� 717 Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No. 1954/2003 and (EC) No. 1224/2009 and repealing Council Regulations (EC) No. 2371/2002 and (EC) No. 639/2004 and Council Decision 2004/585/EC, OJ, 28.12.2013, No. L 354/22 �� 498 Arts 2(2) and (3)��503 Arts 6, 7, 13�� 499 Art 15��502 Art 16(1), (6)��503 Arts 18, 19 and 21 ��503 Regulation 517/2014, O.J. (L 150), 20.5.2014, 195–230 (regulating fluorinated greenhouse gases and repealing Regulation (EC) No. 842/2006); Regulation (EC) No. 842/2006, O.J. (L 161), (regulation of certain fluorinated greenhouse gases)�� 553 Commission Regulation (EU) 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty, 2014 OJ L187/1�� 908 Regulation (EU) No. 1143/2014 of the European Parliament and of the Council of 22 October 2014, on the prevention and management of the introduction and spread of invasive alien species��481 Council Regulation (EU) 2016/72 of 22 January 2016 fixing for 2016 the fishing opportunities for certain fish stocks and groups of fish stocks, applicable in Union waters and, for Union fishing vessels, in certain non-Union waters, and amending Regulation (EU) 2015��502 Commission Regulation 2016/646/EU, OJ 2016 No. L10 �� 403 Regulation (EU) 2016/1628 on requirements relating to gaseous and particulate pollutant emission limits and type-approval for internal combustion engines for non-road mobile machinery, OJ 2016 No. L 252�� 404 Other (Communications, etc.) Council Resolution 85/C 136/01 of 7 May 1985 on a new approach to technical harmonization and standards [1985] OJ C136/1�� 784

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liv table of legislation Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions on the Sixth Environment Action Programme of the European Community, ‘Environment 2010: Our future, Our choice’, COM (2001) 31 final�� 404 Communication of 21 September 2005 from the Commission to the Council and the European Parliament—Thematic Strategy on Air Pollution, COM(2005) 446��404–5 Protocol No. 3 on the Statute of the Court of Justice of the European Union, 30 March 2010, OJ C 83/210, Art. 23 �� 166 Communication from the Commission ‘Europe 2020: a Strategy for Smart, Sustainable and Inclusive Growth’, COM(2010) 2020�� 623 European Commission, Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee, Smarter energy taxation for the EU: proposal for a revision of the Energy Tax Directive, COM(2011) 168/3�� 922 Communication from the Commission on a ‘Roadmap to a Resource Efficient Europe’, COM (2011) 571��623 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘Green Infrastructure (GI)— Enhancing Europe’s Natural Capital’, COM 2013/0249 final �� 485 Communication from The Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions A Clean Air Programme for Europe, COM/2013/0918 final�� 405 EP and Council Decision 1386/2013, OJ [2013] L354/171 ��623 Commission Recommendation 2013/396/EU of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union Law [2013] OJ L201/60��1039 European Commission, Communication from the Commission, Guidelines on State aid for environmental protection 2014–2020, 2014 OJ 2014/C 200/01�� 908

Decision (EU) 2015/1814 of the European Parliament and of the Council of 6 October 2015 concerning the establishment and operation of a market stability reserve for the Union greenhouse gas emissions trading scheme and amending Directive 2003/87/EC [2015] Arts 4, 5��941 European Commission, ‘Closing The Loop: An EU Action Plan for the Circular Economy’, COM(2016) 614��623 Communication from the Commission, ‘Publication of the total number of allowances in circulation for the purpose of the Market Stability Reserve under the EU Emissions Trading System established by Directive 2003/87/EC, COM(2017) 3228 final��941

Finland Legislation Constitution of Finland Ch 2, s 20��1078 Environmental Protection Act��633, 637, 641 Nature Conservation Act 1096/1996 Art 37�� 476 Environmental Damages Act of 1994��1031

France Legislation Order of Charles V 1396 �� 462 Civil Code 1804 Art 1382�� 183 Constitution Art 55�� 1166 Art 72��181, 681, 691 Civil Code��179, 183 Art 524�� 177 Art 1100��179 Art 1162 ��1110 Art 1240 (former 1382)��1029, 1030, 1099 Art 1241 (former 1383)�� 1099 Art 1242 (former 1384)�� 1099, 1103, 1105 Art 1246 and 1247�� 183 Art 1246–1252��1031, 1039 Art 1248��184 Art 1249 alinéa 1��184 Art 1249 alinéa 2��184 Art 1249 alinéa 3�� 180, 185 Art 1252�� 185 Code de commerce créé par L. n° 2001–420, 15 mai 2001

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table of legislation lv Art 116�� 187 Art L. 225–102–1�� 187 Art L. 225–102–4�� 187 Art L. 225–102–5�� 187 Code de la construction et de l’habitation Art L.112.16 ��1116 Code de la consummation Art L. 112–10��188 Code de l’environnement 2000��173, 174–5, 179, 641, 657–8, 659 Art L. 110–1 I et II�� 177, 657, 661, 824 Art L. 132–3��179 Art L. 142–3–1�� 181, 187 Art L. 163–1��176 Art L. 164–2�� 180, 185 Art L. 220–1��178 L.229–15��1097 Art L. 511–1 ��178 Art L. 512–17�� 187 Art 556–3�� 633, 637 Code de la santé publique Art. L. 1142–22 ��1036 Code monétaire et financier Arts L. 533–22–1 and D. 533–16–1�� 187 Code Pénal Art 421–2 and 461–28 ��184 Constitutional Charter on the Environment 2005��1175 Arts 1, 3–7 ��173–4 Art 5�� 182 Loi no. 51–1508 du 31 décembre 1951 ��1036 Loi no. 90–589 du 6 juillet 1990��1036 Loi no. 91–1406 du 31 décembre 1991 Art 47��1036 loi du 23 décembre 2000 de financement de la sécurité sociale pour 2001 Art 53��1036 Loi n° 2001–153 du 19 février 2001 tendant à conférer à la lutte contre l’effet de serre et à la prévention des risques liés au réchauffement climatique la qualité de priorité nationale et portant création d’un Observatoire national sur les effets du réchauffement climatique en France métropolitaine et dans les départements et territoires d’outre-mer 178 Loi n° 2006–1772 du 30 décembre 2006 sur l’eau et les milieux aquatiques ��430, 1036 Environmental Liability law 1 August 2008��176 Loi Grenelle I du 3 août 2009 de programmation relative à la mise en œuvre du Grenelle de l’environnement��176

Loi Grenelle II du 12 juillet 2010 portant engagement national pour l’environnement�� 176, 178 Loi no. 2012–1460 du 27 décembre 2012 relative à la mise en œuvre du principe de participation du public défini à l’article 7 de la Charte de l’environnement��828 Loi No. 2015–992 du 17 août 2015 relative à la transition énergétique pour la croissance verte [law relating to the energy transition for green growth], Journal Officiel de la République Française no.0189 du 18 août 2015��554, 555, 828, 1110 Loi no. du 8 août 2016 pour la reconquête de la biodiversité, de la nature et des paysages��828 Law of 18 November 2016, on the Modernization of the Judiciary�� 187 Regulations Code General des Impots [Internal Revenue Code] Art. 1609 quatervicies A ��916 Décret n° 2015–1850 du 29 décembre 2015 pris en application de l’article L. 533–22–1 du code monétaire et financier [decree adopted pursuant to Article L. 533–22–1 of the Monetary and Financial Code], Journal Officiel de la République Française n°0303 du 31 décembre 2015 ��550 Décret n° 2016–1110 du 11 août 2016 relatif à la modification des règles applicables à l’évaluation environnementale des projets, plans et programmes�� 172 Ordonnance n° 2017–80 et décrets n° 2017–81 et n° 2017–82 du 26 janvier 2017 relatifs à l’autorisation environnementale �� 172

Germany Legislation German Federal Constitution, Basic Law (Grundgesetz—GG)�� 192–3, 194–5, 693, 699, 1181 Art 2(2) ��192 Art 20a��1175 Art 25��194 Art 28�� 687 Art 30�� 683, 687 Art 59�� 1166 Art 59(2) ��194 Art 70(1) ��194 Arts 71��194–5 Art 72�� 194–5, 696 Art 72(1)�� 195

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lvi table of legislation Art 72(3) �� 195 Art 73��194–5 Art 74 ��194–5 Art 83�� 195, 683 Art 84(1) �� 195 Art 84(3) ��196 Art 87(3) ��196 Art 104a�� 688 Civil Code BGB § 134��1110 § 138(1)��1110 § 426(1) ��1034 § 823��1029, 1099 § 830(1)(2)��1034 § 831�� 1033 § 840(1) ��1034 § 906 �� 1099 § 906(2)�� 1032 Waste Disposal Act (Abfallbeseitigungsgesetz) 1972 ��196 Federal Immission Control Act (Bundes-Immisionsschutzgesetz) 1974 ��191, 196, 197, 198 § 1(1)��198 § 3(1), (2)��198 § 3(2) �� 191 §§ 4–21��198 § 5(2) ��199 § 48��196 Federal Nature Conservation Act (Bundesnaturschutzgesetz) 1976��196, 205 §13�� 205 §14(2)�� 205 Federal Water Management Act (Wasserhaushaltsgesetz) 1976 ��196, 201, 207 §§ 4(3), 12(1), 12(2)�� 207 § 7a�� 426 § 8 �� 207 § 12 and § 3 no. 10 and §§ 27, 44, 47�� 207 § 52(5)�� 202 § 57(1)�� 202 § 68�� 202 § 89��1030 Chemicals Act (Chemikaliengesetz) 1980 ��196 Law on Environmental Liability of 10 December 1990�� 1031, 1099, 1104, 1106–7, 1116 §6�� 1035 Packaging Ordinance 1991��204, 621 §7 ��204, 208 Law on Gene-technology of 16 December 1993 ��1030

Federal Soil Protection Act of 17 March 1998��637, 642 Art 2��633 Art 4��639 Law of 25 June 2009, BGBl. I s. 1537��1036 Electricity FeedIn-Tariff Law, 29. März 2000, BGBl. I 2000, S. 305 (superseding 1990 and 1998 versions)�� 555 Federal Pollution Control Act – BimSchG 2002 § 14�� 1032 Act Pertaining to Charges Levied for Discharging Wastewater into Waters (Wastewater Ordinance— AbwV) 18 January 2005. amended on 31 July 2009 �� 427 Environmental Appeals Act (Umweltrechtsbehelfsgesetz)�� 208 Act on Nature Conservation and Landscape Management (Federal Nature Conservation Act – BNatSchG) 2009 Art 16�� 486 Closed Substance Cycle Act (Kreislaufwirtschaftsgesetz—KrWG) 2012 ��203 §23 �� 204 Renewable Energy Sources Law, 21. Juli 2014, BGBL. I, S. 1066��200, 555 Art. 4 German Energy Act, 21. Juli 2014, BGBL. I S. 1066, (amending 2005 version)�� 555 Art. 6 �� 555 Incentive Regulation Ordinance, 21. Juli 2014, BGBL. I, S. 1066, Art. 9 (amending 2007 version)�� 555 Art 9�� 555 Electricity Grid Access Ordinance, 21. Juli 2014, BGBL. I, S. 1066, (amending 2005 version) �� 555 Art. 8 �� 555 Electricity Grid Charges Ordinance, 21. July 2014, BGBL. I S. 1066, (amending 2005 version) �� 555 art. 7 �� 555 Law incentivizing use of electric vehicles (electro-mobility law), 5. Juni 2015, BGBl. I S. �� 555 Renewable Energies Act (Erneuerbare-EnergienGesetz, EEG)��200 Regulations Technical Instructions on Air Quality Control (Technische Anleitung Luft)�� 191, 196, 207

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table of legislation lvii Technical Instructions on Noise Protection (Technische Anleitung Lärm)��196, 207 Regulation of 20 May 1998, BGBl. I s. 1250��1036 Energieeinsparverordnung [Energy Efficiency Regulation], 24 July 2007, BGBl. I S. 1519�� 541 Regulation for the protection against climate change due to the introduction of certain fluorinated greenhouse gases, lately amended in part by Articles 5 and 6 of the law of 20 October 2015 �� 553

Guatemala Legislation Climate Change Framework Law of 2013, Decreto No. 7–2013, D.O. 4.10.2013

India Legislation Constitution �� 213 Art 21��54, 213, 223, 672 Art 37��214 Art 42��214 Art 47��214 Art 48A��214 Art 49��214 Art 51��214 Art 51–A ��214 Art 51–A(g)��223 Art 73��214 Art 95(1)�� 251 Art 246��214 Art 253��214, 215, 228 Madras Wild Elephant Preservation Act of 1873�� 462 Patents Act, 1970 ��528 Art 3(j)��528 Wildlife (Protection) Act 1972 �� 218–19 Ch IV��218 Water (Prevention and Control of Pollution) Act 1974�� 217, 221, 222, 226 Water (Prevention and Control of Pollution) Cess Act 1977 �� 218, 222, 226 s3��218 Forest (Conservation) Act 1980��219, 226 Air (Prevention and Control of Pollution) Act 1981��218, 222, 226, 726 Environment (Protection) Act 1986��219–20, 226, 633 s 2��633 s 3, 6 and 25��219

Public Liability Insurance Act 1991�� 220, 226, 1036 National Environment Tribunal Act 1995��227 National Environmental Appellate Authority Act 1997��227 Energy Conservation Act, 2001�� 560 Protection of Plant Varieties and Farmers’ Rights Act of 2001��529 Biological Diversity Act, 2002 �� 226 Patents (Amendment) Act 2002��528 Electricity Act 2003 ��562 National Green Tribunal Act, 2010 ��226–7, 673 s 14��673 s 20��673 Finance Act 2017 ss 182, 184��673 Regulations Ministry of Power (fuel economy) Regulations, 2015 �� 560

Indonesia Legislation Constitution (Undang-undang Dasar) 1945��234 Art 28D(1)�� 234, 249 Art 28A �� 249 Art 28F��234 Art 28H(1)��234, 250 Art 33��234 Art 33(3)��234 Art 33(4) ��234 Law No 19 of 1961�� 2422 Law on Environmental Management 1990 Art 88 ��1031 Law No. 5 of 1994 on the Ratification of the UN Convention on Biological Diversity��237 Law No. 6 of 1994 on the Ratification of the UNFCCC �� 240 Law No. 41 of 1999 on Forestry��236 Law No. 24 of 2000 on International Agreements ��237 Law No. 25 of 2004 on the National Development Plan System��241 Law No. 31 of 2004 on Fisheries��243 Law No. 4 of 2009 on Mineral and Coal Mining��236 Environmental Protection and Management Act 32 of 2009�� 235–6, 237–41, 633, 638 Art 1(28)��239 Art 2(f) ��243 Art 9(10) �� 249

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lviii table of legislation Art 13(2)��237 Art 14��237 Art 20(2)��239 Art 36��238 Art 40(2)��238 Art 44��236 Arts 48–52��239 Arts 58–59��239 Art 63(2) and (3)�� 235 Art 69�� 242 Art 73��236, 238 Art 77��236 Art 124��241 Law No. 10 of 2013 on the Ratification of the Rotterdam Convention on Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade��237 Law No. 18 of 2013 on Prevention and Eradication of Forest Destruction��241 Law No. 1 of 2014 on the Amendment of Law No. 27 of 2007 on Coastal and Small Island Management��243 Law No. 3 of 2014 on Industry ��236 Law No. 23 of 2014 on Local Government��236 Law No. 32 of 2014 on Marine Affairs��236, 243 Law No. 37 of 2014 on Soil and Water Conservation��241 Law No. 39 of 2014 on Plantations��236 Law No. 16 of 2016 on the Ratification of the Paris Agreement to the UNFCCC Regulations Hinder Ordonantie/Nuisance Ordinance, Staatsblaad 226 of 1926��239 Government Regulation No. 150 of 2000��633 Instruction of President of the Republic of Indonesia No. 10/2011, 20 May 2011 (Delay on New License Issuance and Perfection of Governance of Primary Natural Forest and Peat Lands)�� 551 Regulation of Forestry Minister No. 62 of 2013 on the Amendment of Ministerial Regulation No. 44 of 2012 on Forest Zone Designation �� 251

Presidential Decrees Presidential Decree No. 18 of 1978��243 Regulation No. 109 of 2006 on the Management of Sea Oil Spills �� 243–4 Presidential Regulation No. 61 of 2011 on the National Action Plan to Reduce GHG Emissions��241

Presidential Regulation No. 71 of 2011 on the GHG Inventory��241 Presidential Instruction No. 6 of 2013 on Suspension of New Licenses and Improving Governance of Primary Forest and Peat Lands��241 Presidential Decree No. 65 of 2014 on the Ratification of the International Convention on Civil Liability for Bunker Oil Pollution Damage��237 Presidential Regulation No. 115 of 2015 on the Task Force for Combating Illegal Fishing�� 244

Government Regulations and Ministerial Decrees Governor of East Kalimantan Decree No. 339 of 1988 on Environmental Quality Standards for East Kalimantan �� 242 Ministerial Decree No. 35/MENLH/10/1993 on Emission Standards for Vehicles��241 Ministerial Decree No. 13/MENLH/3/1995 on Emission Standards for Stationary Sources 242 Ministerial Decree No. 13/MENLH/11/1996 on Noise Standards�� 242 Ministerial Decree No. 49/MENLH/11/1996 on Vibration Standards�� 242 Ministerial Decree No. 50/MENLH/11/1996 on Odour Standards�� 242 Ministerial Decree No. 45/MENLH/10/1997 on the Air Pollution Standards Index�� 242 Head of Bapedal Decree No. 107/ Kabapedal/11/1997 on the Technical Guidelines for Measurement and Reporting Standards of Air Pollution�� 242 Government Regulation No. 18 of 1999 on the Management of Hazardous Waste��239 Government Regulation No. 19 of 1999 on Marine Pollution and Damage Control ��243 Government Regulation No. 41 of 1999 on Air Pollution Control�� 242 Government Regulation No. 85 of 1999 on the Amendment of Government Regulation No. 18 of 1999 on the Management of Hazardous Waste��239 Government Regulation No. 4 of 2001 on Environmental Destruction and/or Pollution Control from Forest and/or Land Fires�� 242–3 Ministerial Decree No. 4 of 2001 on Standard Criteria for Coral Reef Damage��243

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table of legislation lix Ministerial Decree No. 51 of 2004 on Seawater Quality Standard and amendment, Ministerial Decree on Standard Criteria for Mangrove Damage ��243 Governor of DKI Jakarta Province Decree No. 551 of 2001 on Ambient Quality and Nuisance Standards�� 242 Ministerial Decree No. 12 of 2006 on Licensing Procedures for Waste Disposal into Marine Areas��243 Governor of East Java Regulation No. 10 of 2009 on Ambient Air Quality from Mobile and Static Resources�� 242 Ministerial Decree No. 2007 0f 2009 on Guidelines for Subnational Nuisance Licenses ��239 Environment Minister Decree No. 13 of 2011 on Compensation for Damages Caused by Pollution and/or Environmental Damage�� 240 Government Regulation No. 27 of 2012 on Environmental Licenses��238 Art 48(2)��238 Local Regulation of Lampung Province No. 20 of 2014 on Air Pollution Control�� 242 Minister of Maritime Affairs and Fisheries Regulation No. 56 of 2014 on Fishing Moratorium in Indonesian Fishing Zones�� 244 Minister of Maritime Affairs and Fisheries Regulation No. 57 of 2014 on Fishing Businesses in Indonesian Fishing Zones�� 244 Government Regulation No. 79 of 2014 on National Energy Policy��241 Ministerial Decree No. 101 of 2014 on the Management of Hazardous Waste��239 Minister of Maritime Affairs and Fisheries Regulation No. 2 of 2015 on the Prohibition of the Utilization of Trawls and Seine Nets in Indonesian Fishing Zones�� 244 Minister of Home Affairs Regulation No. 22 of 2016 on the Amendment of Ministerial Decree No. 27 of 2009 on the Guidelines for Subnational Nuisance Licence��239

Supreme Court Regulations Supreme Court Regulation No. 134/KMA/SK/ IX/2011 Art 5(3)�� 247 Art 6�� 247 Supreme Court Regulation No. 36/KMA/SK/ III/2015 Art 1�� 247

Supreme Court Decrees Supreme Court Decree No. 134/KMA/SK/ IX/2011 on environmental cases �� 247 Supreme Court Decree No. 178/ KMA/SK/ XI/2011 on the Selection Team for the Certified Environmental Judges System �� 247 Supreme Court Decree No. 26/KMA/SK/ II/2013 on the Selection and Appointment of Certified Environmental Judges �� 247 Supreme Court Decree No. 36/KMA/SK/II/2013 on the Guidelines for Handling Environmental Cases �� 247

Ireland Legislation Wild Birds Protection Act 1930 ��474 Civil Liability Act 1961 Pt III��1034 Waste Management (Amendment) Act 2001 (Act No. 36/2001)��916 Finance Act of 2010 Pr 3, Ch 1–3�� 920–1 Finance Act 2011 Pt 2��921 Regulations Waste Management (Environmental Levy) (Plastic Bag) Regulations, 2001��916 Waste Management (Environmental Levy) (Plastic Bag) (Amendment) (No. 2) Regulations 2007��916

Italy Legislation Constitution of Italy Pt II, Title V, Art 117(s) ��1077 Civil Code Art 844�� 1032 Art 2055��1034 Decreto Legislativo 42/2004��435 Legislative Decree No. 152 of 3 April 2006 (Consolidated Environmental Protection Code) �� 426, 633, 642 Art 242��638 Title V, section IV ��632 Annex 1, section IV��632 Regulations Codice dei beni culturali e del Paesaggio��435 Art 134��435 Environmental Protection Code Art 311 ��1039

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lx table of legislation Ivory Coast Legislation Law no. 65–255 of 4 August 1965, concerning the protection of fauna and the practice of hunting Art 1�� 476

Japan Legislation Civil Code Art 709��1029 Laws No. 89/1896 and 9/1898 (Minpô) - Civil Code Arts 197, 198 and 206��272 Art 709�� 271 National Parks Law 1931�� 466 Constitution of Japan 1946 Art 13�� 256–7, 272 Art 17��273 Art 25��257 Arts 92 and 94�� 258–9 Art 98(2)��257 Law No. 67/1947 (Chihô jichi-hô) (Local Autonomy Law)��248–9 Law No. 125/1947 (Kokka baishô-hô) (State liability law)��273 Art 1�� 273–4 Arts 1(1)��273 Art 2�� 273, 274 Art 5��273 Fisheries Cooperation Association Law, Act No. 242 of 1948��499, 500 Fisheries Law 1949, Act No. 267 of 1949��499, 500 Law No. 214/1950 (Bunka-zai hogo-hô) (Law on the Protection of Cultural Properties)�� 260 Law Concerning Standardization and Proper Labeling of Agricultural and Forestry Products, Act No. 175 of 1950, last amended by Act No. 70 of 2013�� 523 Law 313/1951 (Suisan shigen hogo-hô )(Act on the Protection of Fishery Resources) ��261, 499 Nature Conservation Law 1952��503 Law No. 186/1955 (Genshi-ryoku kihon-hô), (Nuclear Energy Basic Law)��275 Law No. 161/1957 (Shizen kôen-hô) (Natural Parks Law) ��260, 466, 503 Arts 1 and 2�� 260 Law No. 139/1962 (Gyôsei jiken soshô-hô), (Administrative Case Litigation Law)��273 Art 3, 3–7, 9(1), 9–2��273

Law No. 72/1963 (Toshi ryokuchi-hô) (Urban Green Space Act)��261 Law No. 110/1967 (Kôkyô-yô hiko-jô shûhen ni okeru kôkû-ki sô’on ni yoru shôgai no bôshi- tô ni kansuru hôritsu) (Law Concerning the Prevention of Damage caused by Aircraft Noise in Areas Around Public Airports)�� 264 Law No. 132/1967 (Kôgai taisaku kihon-hô) (Basic Law for Environmental Pollution Control) �� 254, 255 Art 8��275 Law No. 97/1968 (Taiki osen bôshi-hô), (Atmospheric Pollution Prevention Law) ��262, 1030 Art 2 Art 2(9)��262 Art 3��262 Art 4��262 Art 5–2��262 Arts 6, 9, 10, 14��262 Arts 18–20�� 262–3 Art 19��263 Art 25��262, 1030 Law No. 98/1968 (Sô ’on kisei-hô) (Noise Regulation Law) ��263 Art 1, 4, 6 and 9��263 Arts 15, 16 and 17�� 264 Arts 29 and 30��263 Act on Special Measures Concerning Relief for Health Damage by Pollution, Act No. 90 of 1969��1036 Law No. 108/1970 (Kôgai funsô shori-hô), (Law on Settlement of Environmental Pollution Disputes)��274 Law No. 137/1970 (Haiki-butsu no shori oyobi seisô ni kansuru hôritsu) (Waste Management and Public Cleansing Law)�� 264 Art 3�� 264 Art 12–3�� 264 Law No. 138/1970 (Suishitu odaku bôshi-hô) (Water Pollution Prevention Law)�� 266 Arts 2(1)�� 266, 275 Arts 12–3 and 14–3�� 266 Art 19��1030 Art 23(1)��275 Law No. 139/1970 (Nôyô-chi no dojô no osen bôshi-tô ni kansuru hôritsu) (Agricultural Land Soil Pollution Prevention Law)�� 266

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table of legislation lxi Law No. 142/1970 (Hito no kenkô ni kakaru kôgai hanzai no shobatsu ni kansuru hôritsu) (Law for Punishment of Crimes Relating to Environmental Pollution Pertaining to Human Health) �� 271 Law No. 91/1971 (Akushû bôshi-hô), (Offensive Odour Control Law)��263 Law No. 85/1972 (Shizen kankyô hozen-hô) (Nature Conservation Law)�� 260 Law No. 111/1973 (Kôgai kenkô higai no hoshô-tô ni kansuru hôritsu) (Pollution-Related Health Damage Compensation Law)�� 275, 1036 Law No. 105/1973 (Dôbutsu no aigo oyobi kanri ni kansuru hôritsu) (Law on Welfare and Management of Animals)��256 Law No. 117/1973 (Kagaku busshitsu no shinsa oyobi seizô-tô no kisei ni kansuru hôritsu) (Law on the Evaluation of Chemical Substances and Regulation of the Manufacture)��267 Arts 1, 2, 2–8, 4, 4–4, 4–6, 5–3, 5–5, 8–2, 9 and 39��267 Law No. 101/1974 (Bôei shisetsu shûhen no seikatsu kankyô no seibi-tô ni kansuru hôritsu shikōrei) (Law Concerning the Improvement, etc. of Living Environments around Defence Facilities)�� 264 Law No. 74/1976 (Shindô kisei-hô) (Vibration Regulation Law)�� 264 Law No. 61/1984 (Koshô suishitsu hozen tokubetsu sochi-hô) (Law Concerning Special Measures for the Conservation of Lake Water Quality) �� 266 Law No. 53/1988 (Tokutei busshitsu no kisei-tô ni yoru ozon-sô no hogo ni kansuru hôritsu) (Law Concerning the Protection of the Ozone Layer through the Control of Specified Substances and other Measures)��267 Law No. 48/1991 (Shigen no yûkô na riyô no sokushin ni kansuru hôritsu) (Law for the Promotion of Effective Utilization of Resources)�� 264–5 Law No. 70/1992 (Jidô-sha kara haishutsu sareru chisso sanka-butsu oyobi ryûshi-jô busshitsu no tokutei chi’iki ni okeru sôryô no sakugen-tô ni kansuru tokubetsu sochi- hô), (Law Concerning Special Measures for Total Emission Reduction of Nitrogen Oxides from Automobiles in Specified Areas) ��263

Law No. 75/1992 (Zetsumetsu no osore no aru yasei dô-shokubutsu no shu no hozon ni kansuru hôritsu) (Law for the Conservation of Endangered Species of Wild Fauna and Flora)��261 Law No. 108/1992 (Tokutei yûgai haiki-butsu-tô no yushutsu-nyû-tô no kisei ni kansuru hôritsu), (Law for the Control of Export, Import, etc. of Specified Hazardous Waste, etc.)��265 Law No. 91/1993 (Kankyô kihon-hô) (Environmental Basic Law)��255, 257–8, 819, 831 Art 1�� 257, 822 Art 3��257 Art 4�� 257, 258 Art 5��257 Art 13��275, 276 Art 14��827 Art 15�� 258, 819, 822, 827 Art 16��258, 264 Art 17��258 Art 22(1)��258 Art 22(20)�� 28 Law No. 112/1995 (Yôki hôsô ni kakaru bunbetsu shûshû oyobi sai-shôhin-ka no sokushin-tô ni kansuru hôritsu), (Act on the Promotion of Sorted Collection and Recycling of Containers and Packaging) �� 265, 617, 621 Law No. 77/1996 (Kaiyô seibutsu shigen no hozon oyobi kanri ni kansuru hôritsu) (Act on Preservation and Control of Living Marine Resources)��261 Law No. 81/1997 (Kankyô eikyô hyôka-hô) (Environmental Impact Assessment Law) ��268–9 Arts 2, 5–11 and 17 �� 268 Arts 31 and 38�� 269 Art 52(12)��275 Law on Preservation and Management of Living Marine Resources 1997�� 500 Law No. 97/1998 (Tokutei katei-yô kiki saishôhin-ka-hô). (Specified Home-use Appliance Recycling Law)�� 265, 617, 621 Law No. 117/1998 (Chikyû ondan-ka taisaku no suishin ni kansuru hôritsu) (Law on Promotion of Global Warming Countermeasures)�� 269 Art 1�� 269 Art 3(4) �� 269 Law No. 86/1999 (Tokutei kagaku busshitsu no kankyô e no haishutsu-ryô no ha’aku-tô

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lxii table of legislation oyobi kanri no kaizen no sokushin ni kansuru hôritsu) (Law Concerning Reporting of Releases to the Environment of Specific Chemical Substances and Promoting Improvements in Their Management)��267 Arts 5, 6 and 10��267 Law No. 105/1999 (Daiokishin-rui taisaku tokubetsu sochi-hô) (Law Concerning Special Measures against Dioxin)��267–8 Law No. 100/2000 (Kuni-tô ni yoru kankyô buppin-tô no chôtatsu no suishin-tô ni kansuru hôritsu) (Law Concerning the Promotion, etc. of Procurement, etc. of Eco-Friendly Goods and Services by the State and other Entities)��265 Law No. 104/2000 (Kensetsu kôji ni kakaru shizai no sai-shigenka-tô ni kansuru hôritsu) (Law Concerning the Recycling, etc. of Materials Relating to Building and Construction)�� 265, 617 Law No. 110/2000 (Junkan-gata shakai keisei suishin kihon-hô), (Basic Law for Establishing a Sound Material-Cycle Society)�� 265, 615, 614 Arts 5–7, 11(2), 11(3) and 15 ��265 Law No. 116/2000 (Shokuhin junkan shigen no saisei riyô-tô no sokushin ni kansuru hôritsu) (Law Concerning the Promotion of Recycling, etc. of Cyclical Food Resources) �� 265, 617 Basic Act on Fisheries Policy 2001�� 500 Art 11 �� 500 Law No. 53/2002 (Dojô osen taisaku-hô) (Soil Contamination Countermeasures Law)�� 266–7, 633, 634, 638, 642 Arts 1, 3 6 and 7��267 Art 2(1)��275 Law No. 87/2002 (Shiyô-zumi jidô-sha no sai-shigen-ka-tô ni kansuru hôritsu (Law Concerning the Recycling, etc. of End-ofLife Vehicles) ��265, 617, 621 Law No. 88/2002 (Chôjû no hogo oyobi kanri narabi ni shuryô no tekisei-ka ni kansuru hôritsu) (Law Concerning the Protection and Control of Wild Birds and Mammals, and Hunting Management)�� 261, 503 Law No. 148/2002 (Shizen saisei suishin-hô) (Nature Revitalisation Promotion Act)��261 Law No. 18/2003 (Iden-shi kumikae seibutsu-tô no shiyô-tô no kisei ni yoru seibutsu no tayô- sei no kakuho ni kansuru hôritsu), (Law on the Conservation and Sustainable Use of Biological Diversity through

Regulations on the Use of Living Modified Organisms (LMOs))��261–2 Law No. 78/2004 (Tokutei gairai seibutsu ni yoru seitai-kei-tô ni kakaru higai no bôshi ni kansuru hôritsu) (Invasive Alien Species Law)��261 Law No. 4/2006 (Ishiwata ni yoru kenkô higai no kyûsai ni kansuru hôritsu) (Law on Asbestos Health Damage Relief)�� 268 General Act Related to the Application of Laws 2006 § 22(2) �� 1037 Law No. 56/2007 (Kuni-tô ni okeru onshitsu kôka gasu-tô no haishutsu no sakugen ni hairyo shita keiyaku no suishin ni kansuru hôritsu) (Act on Promotion of Contracts of the State and Other Entities, Which Show Consideration for Reduction of Emissions of Greenhouse Gases, etc) ��270 Basic Act on Ocean Policy 2007�� 500 Law No. 58/2008 (Seibutsu tayô-sei kihon-hô) (Basic Law on Biodiversity)��261 Art 11 ��261 Act on Emergency Measures of 5 August 2011 ��1036 Act on Swift and Secure Compensation of 11 December 2011��1036 Law No. 108/2011 (Denki jigyô-sha ni yoru saisei kanô enerugî denki no chôtatsu ni kansuru tokubetsu sochi-hô) (Act on Special Measures Concerning Procurement of Electricity from Renewable Energy Sources by Electricity Utilities)�� 270 Laws No. 16–9/2012 (Global Warming Countermeasures Tax)�� 270 Law No. 68/2014 (Gyôsei fufuku shinsa-hô), (Administrative Complaint Review Act) ��273 Law No. 50/2018 (Kikô hendô tekiô-hô) (Climate Change Adaptation Act)��269–70 Arts 1, 4 and 5�� 270

Greece Legislation Civil Code Art 926��1034 Art 931��1036 Arts 1003 and 1108�� 1032

Kenya Legislation National Parks Ordinance 1945 �� 466

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table of legislation lxiii Laws of Kenya, Water Act, Chapter 372 § 13�� 430

Malaysia Legislation Protection of Wildlife Act 1972�� 466 Environmental Quality Act 1974 s 2��633 s 21 �� 642 s 31(1)��638 National Parks Act 1980�� 466 Renewable Energy Act 2011��539

Mexico Legislation Constitution 1917 ��278–81 Art 1��279 Art 2��281 Art 4��280, 281, 282 Art 6�� 288 Art 17��278, 292 Art 25��279 Art 27��283, 284 Arts 103 and 107��292 Art 133 �� 280 Federal Act to Prevent and Control Pollution 1971��282 Federal Act for Environmental Protection 1982��282 Federal Law of Environmental Responsibility�� 281 General Act on Ecological Balance and Environmental Protection (LGEEPA) 1988 ��278, 279, 282–7, 288, 289, 291 Art 15��282 Art 180��291 National Waters Act 1992 �� 284–5 General Wildlife Act 2000 �� 286–7 General Act for the Prevention and Comprehensive Management of Waste 2003�� 287–8 Art 5��287 Title V, Chapter VI��633, 638 Genetically Modified Organisms (GMOs) Biosafety Act 2005��287 Art 101�� 523 Amparo Act 2012 �� 292–3 General Climate Change Act 2012 (as amended, 2 de april de 2015) ��283–4, 534 Federal Act on Environmental Liability 2013�� 291–2, 1039

General Act on Transparency and Access to Public Information 2015�� 288 Art 1�� 288 Art 6�� 288 Art 8�� 288 Regulations Federal Code of Civil Procedure ��292 Art 584��292 Federal Criminal Code ��293 RLGEEPAANP, Mexico, DOF, 30 November 2000 �� 285–6 NOM-138–SEMARNAT/SS-2003�� 642 NOM-141–SEMARNAT-SSA1–2004�� 642 NOM-059–SEMARNAT-2010, Mexico, DOF, 30 December 2010 �� 286 RISEMARNAT, Mexico, DOF, 26 November 2012 Art 45��291 Norma Official Mexicana, Diario Oficial, 21 de junio de 2013 �� 560

Netherlands Legislation Constitution of the Netherlands Ch 1, Art 21��1077 Civil Code Art 6:97��1038 Art 6:102 ��1034 Art 6:162 �� 1029, 1109 Art 6:173, 6:174, 6:175, 6:176, 6:177 ��1030 Code of Civil Procedure Art 150�� 1033 Soil Protection Act s 1 and 30��635 s 38�� 642, 643 Art 55 (b)��638

New Zealand Legislation Fisheries Act 1908�� 501 Land transfer Act 1952�� 713 s 62�� 713 Wildlife Act 1953��465, 502 Health Act 1956��610 Marine Reserves Act 1971 ��502 Queen Elizabeth the Second National Trust Act 1977 (New Zealand)��710 Marine Mammal Protection Act 1978��502 Litter Act 1979��610 Antarctic Marine Living Resource Act 1981 �� 501 Fisheries Act 1983�� 501 Environment Act 1986��610

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lxiv table of legislation Conservation Act 1987��502 Driftnet Prohibition Act 1991�� 501 Resource Management Act 1991 (amended 1996)��502, 610, 714, 802 s 2��635 s 5��723 s 6��714 s 49�� 805 Maori Land Act 1993 s2��714 Fisheries Act 1996�� 501, 507 Hazardous Substances and New Organisms Act 1996��610 Climate Change Response Act 2002 ��534 Maori Fisheries Act 2004 �� 501 Aquaculture Reform (Repeals and Transitional Provisions) Act 2004�� 501 Resource Management (Energy and Climate Change) Amendment Act 2004��534 Waste Minimisation Act 2008 ��617 ss 3, 5(1)��617 s 8(10)��622 s 23��623 ss 42, 43��610 Pt 2��623 Pt 3��618 Environment Protection Authority Act 2011 s 12(2)��723 Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012��502 Te Urewera Act 51 of 2014�� 1060 Art 4�� 1060 Whanganui River Deed of Settlement 2014��1060 Te Awa Tupua (Whanganui River Settlement) Act 2017��236–7, 713, 714 s 8�� 713 s 14��714 ss 18, 19 and 20��714 Regulations New Zealand Fisheries (Quota Management Areas, Total Allowable Catches, and Catch Histories) Notice 1986 (SR 1986/267) �� 501 Climate Change (Agriculture Sector) Regulations 2010, SR 2010/335 regs 4–14 551

Peru Legislation Law No. 30.203 declaring the protection and conservation of the Andean condor of national interest and public necessity�� 465

Forest and Wildlife Law No. 29763 Art 6�� 476 Supreme Decree No. 002–2013–MINAM (25 March 2013)�� 634, 638, 642 Supreme Decree No. 002–2014MINAM (24 March 2014)�� 634, 638, 642 Regulations National Forestry and Climate Change Strategy, Decreto No. 007–2016–MINAM (21 July 2016)�� 549

Norway Legislation Constitution of Norway Art 110b��1078

Poland Legislation Constitution of Poland Ch 2, Art 74(2) ��1077 Civil Code Art 415��1029 Art 435��1030 Environmental Law of April 2001 ��633, 638 Law on Genetically Modified Organisms of 22 June 2001��1030 Water Law, 18 July 2001 (Ustawa z dnia 18 lipca 2001 r.—Prawo wodne)�� 426 Ordinance of the Minister of Environment on Standards of Equality of Land of 9 September 2002 �� 634, 642

Portugal Legislation Civil Code Art 490 ��1034 Art 497��1034 Art 492, § 2�� 1033 LBA Law No. 11/87, as amended by Law 13/2002 Art 48��1039 Law No. 83 of 31 August 1994 (Environmental Protection Code) Art 23��1030 DL No. 236/98 (Water Pollution Law) Art 73��1039

Singapore Legislation Second Charter of Justice 1826�� 298 Constitution �� 298

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table of legislation lxv Income Tax Act (Ordinance 39 of 1947)�� 300–1 Planning Ordinance 1959 �� 312 Animals and Birds Act (Ordinance 5 of 1965, Cap 216) ��299, 311 Wild Animals and Birds Act (Ordinance 5 of 1965, Cap 351)��299, 308–9, 311 Application of English Law Act (Act 35 of 1993)�� 298 Environmental Public Health Act (Amendment Act) No. 2 of 1996 ��307 Hazardous Waste (Control of Export, Import and Transit) Act (Act 13 of 1997)��307 Environmental Public Health Act 1987 (Act 14 of 1997)�� 299, 306 s 18 �� 306 ss 24–31 ��307 s 44m�� 308 Pt III��307 Environmental Protection and Management Act (Act 9 of 1999)�� 299, 634, 638 s 6–9�� 300 s 15 ��305, 638 s 17(6)��305 s 18 ��305, 638 s 18(1) (a)–(g) �� 306 s 19��305 s 20��307 s 20(1)(c)�� 306 ss 24–31 ��307 s 26�� 313 ss 28–30�� 308 s 36�� 313 s 71��305 Pt III��307 Pt VIII�� 308 Environmental Public Health (Amendment Act) No. 22 of 1999��307 Road Traffic Act, Cap. 276 s 11AA ��302 Parks and Trees Act (Act 4 of 2005)�� 299, 309, 311 Endangered Species (Import and Export) Act, Act 5 of 2006)�� 299, 309, 311 Workplace Safety and Health Act (Act 7 of 2006)�� 308 Road Traffic (Carbon Emissions) Tax 2012 (S 653/2012)��302 Energy Conservation Act (Act 11 of 2012) �� 309 ss 10–20�� 309 ss 21–32 ��310 ss 39–43�� 309 ss 44–52��310

Transboundary Haze Pollution Act (Act 24 of 2014)�� 303–4 Regulations Income Tax Act and the Income Tax (Efficient Pollution Control Equipment) Rules, 1996 s. 19A (5), (6), (7), (8), and (15)��301 Income Tax (Low-decibel Machine, Equipment or System and Effective Noise Control Device or Engineering Noise Control Measure) Rules (Cap. 134, R. 12)��301 Income Tax (Machine, Equipment or System which Reduces or Eliminates Exposure to Chemical Risk Singapore Standard SS 593:2013 Code of Practice for Pollution Control�� 634, 642 Environmental Public Health (Notice to Attend Court) Regulations 1995 (S 449/95)�� 306 EC (Fuel Economy Labelling) Order, S 307/2012�� 309 Energy Conservation (Motor Vehicles Subject to Fuel Economy Requirements) Order, S309/2012 �� 309 EC (Registrable Goods) Order, S 557/2013�� 309 EC (Energy Management Practices) Regulations, S246/2013��310 Energy Conservation (Registrable Corporations) Order, S 248/2013��310 EC (Transport Facilities Operators) Order, S807/2013 ��310 EPH (Corrective Work Order) (CWO) Regulations (Section 447/92)��307 EPH (Toxic Industrial Waste) Regulations (S 111/88, S 305/88, S 24/89, S 197/89, S 610/99, Cap. 95 ��307 EPM (Ozone Depleting Substances) Order (Ch 94A, S.77) ��307 EPM (Control of Noise from Construction Sites) Regulations 1999 (S. 466/1999, Cap. 94A) �� 308 EPM (Trade Effluent) Regulations (S. 160/1999 (RG 5) 2008)��305 EPM (Prohibition on the Use of Open Fires) Order (S 161/1999, 2008)��302 EPM (Air Impurities) Regulations (RG 8, S 595/2000 (2008)�� 300 EPM (Vehicular Emissions) Regulations (Cap. 94A RG 6) ��301, 308 regs 12–19��301 EPM (Off-Road Diesel Engine Emissions) Regulations, S 299/2012��301 Parks and Trees (Heritage Roads Green Buffers) Order, Cap. 216 OR 2�� 309

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lxvi table of legislation Parks and Trees (Preservation of Trees) Order, Cap. 216, OR�� 309 Road Traffic (Motor Vehicles Registration and Licensing) Rules Rules 9, 9AA and 9C��302 Wild Animals (Licensing) Order�� 309 Wild Animals and Birds (Bird Sanctuaries) Order�� 309

South Africa Legislation Tax Act 58 of 1962��558 Patents Act 1978 (Act No. 57 of 1978, as amended up to Patents Amendment Act 2002) Art 4(b)��529 Western Cape Land Use Planning Ordinance 15 of 1985 ��328 Constitution of the Republic of South Africa 1996�� 316, 1048 Preamble�� 332 s 2�� 316 s 24�� 316 s 24(b)(iii)�� 317 s 27��320, 1067 s 27(1)(b)��320 s 27(2)��320 s 32��320, 1063 s 33�� 319, 1063–4 s 34�� 1064 s 39(1)(b)�� 317 s 40(1)�� 321 s 41(1)��327 s 41(1)(g) �� 321 ss 103–150�� 321 s 151(4)��327 s 152 ��328 s 231–232 �� 316 s 233 �� 317 Ch 2: Bill of Rights��316, 317–20, 1057 Ch 3 ��321, 328 Ch 4–7�� 321 Ch IV�� 316 Sch 4��326 Pt B��328 Sch 5��326 National Environmental Management Act 1998��316, 317–18, 322–5, 331, 1125 s 1 ��324 s 1(1)(xxix)��322 s 2��322 s 2(1)��322 s 2(3)��322

s 2(4)(b)–(r) �� 323 s 2(4)(n)�� 317 s 4(a) �� 323 s 24��1125 National Water Act 36 of 1998�� 323–4, 331, 429–30, 1125 s 3 and 3(1)�� 323 §§ 1xviii(b), ss 12–13�� 428 Promotion of Access to Information Act 2 of 2000 �� 1064 Promotion of Administrative Justice Act 3 of 2000 �� 319, 1064 Local Government: Municipal Systems Act 32 of 2000 ��324 s1��324 Mineral and Petroleum Resources Development Act 28 of 2002�� 323, 331 Patents Amendment Act 2002��529 National Environmental Management: Protected Areas Act, 57 of 2003�� 325, 329 s48 �� 325 National Environmental Management: Biodiversity Act 10 of 2004��324, 329 s1��324 National Environmental Management: Air Quality Act No. 39 of 2004��1125 Electricity Regulation Act 4 of 2006�� 332 National Environmental Management: Integrated Coastal Management Act 24 of 2008��328 National Environmental Management: Waste Act 59 of 2008��324, 329, 331, 634, 1125 s1, 2(4)(d) and (e)��324 s 36(5)��638 Water Pollution Control Law 2014�� 427 s 19(1)�� 427 Western Cape Land Use Planning Act 3 of 2014��328 Regulations Energy Standard for Buildings with mechanically assisted ventilation systems, SANS 0204 (2007)��558 Presidential Proclamation on the Transfer of Administration and Powers and Functions Entrusted by Legislation to Certain Cabinet Members in Terms of Section 97 of the Constitution Government Gazette No. 32367, 1 July 2009 ��329 Government Notice R711/2011 of 9 September 2011, amending National Building Regulations and Building Standards Act 103 of 1977��558

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table of legislation lxvii Environmental Impact Assessment Regulations, 2014, No. R. 982 s 1 �� 889

South Korea Legislation Constitution of Korea 1988�� 334, 335 Art 35(1) �� 336, 337, 338 Art 35(2)�� 336, 337 Arts 40, 66(4) and 101(1)�� 335 Arts 107(1), 111–113��336 Basic Environmental Policy Act 1987 ��334, 338, 346–7 Art 2��339 Art 6�� 337 Art 7��338 Framework Act on Low Carbon, Green Growth, Act No. 9931, 13 January 2010��534 Wetlands Conservation Act (South Korean Law No. 5866, amended as Law No. 13880 as of 27 January 2014) Arts 8–9�� 346 Act on the Conservation and Use of Biological Diversity and Conservation and the Management of Marine Ecosystems Act (South Korean Law No. 11257, amended as Law No. 12459 as of 18 March 2014) Arts 11–13, 19, 21–15 �� 446 Act on the Control and Aggravated Punishment of Environmental Offenses (South Korean Law No. 4390, amended as Law No. 12738 as of 3 June 2014) Arts 12 and 15.2��347 Environmental Damage and Relief Liability Act (South Korean Law No. 12949) �� 348–9 Art 7�� 349 Art 9��348 Arts 17–22�� 349 Electronic Recycling Act, South Korean Law No. 8405, amended as Law No. 13038 as of 20 January 2015) Art 15�� 346 Maritime Environment Preservation Act (South Korean Law No. 8260, amended as Law No. 13383 as of 22 June 2015)��342 Fisheries Act (South Korean Law No. 295, amended as Law No. 13385 as of 22 June 2015.)��342 Water Quality and Ecosystem Conservation Act (South Korean Law No. 4260, amended as Law No. 13530 as of 1 December 2015)��338, 342, 347–8

Arts 33�� 347, 348 Art 44��347 Art 75��348 Chemicals Control Act (28 South Korean Law No. 4261, as amended Law No. 13534 as of 1 December 2015) �� 344–5 Art 28 and 41�� 344 Soil Environment Conservation Act (South Korean Law No. 4906, amended as Law No. 13534 as of 1 December 2015) Art 4.2 ��342 Art 10.3–10.4��343 Art 10–4��338 Art 11(3), 14(1), 16–22��343 Act on the Persons Performing the Duties of Judicial Police Officers and the Scope of Their Duties, South Korean Law No. 380, amended as Law No. 13601 as of 22 December, 2015 Arts 5(xxii), 6(xix)��347 Environmental Dispute Mediation Act (South Korean Law No. 4258, amended as Law No. 13602 as of 22 December 2015)�� 349 Art 6, 33, 42(1) and 45.4�� 349 Act on the Integrated Management of Environment Polluting Facilities, South Korean Law No. 13603��339 Art 24��339 Air Environment Conservation Act (South Korean Law No. 4262, amended as Law No. 13874 as of 27 January 2016) �� 340 Art 2�� 340 Art 35�� 340 Arts 46–76.8�� 340 Art 58��341 Wildlife Protection and Management Act (South Korean Law No. 7167, amended as Law No. 13882 as of 27 January 2016)�� 346 Natural Environment Conservation Act (South Korean Law No. 4492, amended as Law No. 13885 as of 27 January 2016)�� 346 Industrial Safety and Health Act (South Korean Law No. 3532, as amended Law No. 13906 as of 27 January 2016) Art 49.2��345 Resources Recycling Framework Act (South Korean Law No. 14229, enacted on 29 May 2016) �� 345–6 Recycling Act, South Korean Law No. 4538, amended as Law No. 14230 as of 29 May 2016 Art 16(1)�� 346

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lxviii table of legislation Environmental Impact Assessment Act (South Korean Law No. 4567, amended as Law No. 14232 as of 29 May 2016)�� 338–9 Special Act on Remedy for Damage Caused by Humidifier Disinfectants (South Korean Law No. 14566) ��345 Act for Development, Use, and Dissemination of New and Renewable Energy (South Korean Law No. 7284, amended as Law No. 14670 as of 21 March 2017) Art 12–5–12–7��341 Low Carbon, Green Growth Fundamental Act (Legislation No. 15101)��339, 349 Art 2(9)��341 Art 38, para. 2��339 Conservation and Management of Marine Ecosystems Act (South Korean Law No. 15135) ��342 Act on Activities in the Antarctic Area and the Protection of Antarctic Environment (South Korean Law No. 15787)��342–3 Special Act on the Improvement of Air Quality in Seoul Metropolitan Area (South Korean Law No. 15274) Arts 14–22�� 340 Act on the Allocation and Trading of Greenhouse-Gas-Emission Permits�� 341–2 Art 2(1), 12(4)��341 Act on the Safety Management of Household Chemical Products and Biocides (South Korean Law No. 15511)��345 Korean Act on Registration, Evaluation, Authorisation and Restriction of Chemicals (South Korean Law No. 11789, as amended Law No. 15512 as of 20 March 2018) �� 344 Art 10, 29, 25, 27, 32–37 �� 344 Environmental Health Act (South Korean Law No. 15583) Art 19�� 349 Regulations Vehicle Average Fuel Economy and GHG Emission Standards (2012–15), Notification No. 2011–89 of the Ministry of Environment �� 560 Vehicle Average Fuel Economy and GHG Emission Standards (2016–20), Notification No. 2014–235 of the Ministry of Environment �� 560 Ministry of Environment and the Subordinate Agencies, Presidential Decree amended by Presidential Decree No. 27450 of 16 August 2016 ��336

Enforcement Regulation of MOE No. 671 (21 July 2016)�� 340 Art 4�� 340

Spain Legislation Constitution of Spain Art 45(1)��1078 Civil Code Arts 610, 611 ��474 Art 1902��1029 Art 1908��1030 Law on protected areas 1975�� 466 Consolidated Law on Water, Royal Legislative Decree 1/2001�� 426 Law 5/2007��471 Waste and Contaminated Land Act 2011��638 Art 3.x �� 634 Art 54.1�� 642

Sweden Legislation Environmental Code of Sweden (Ds 2000:61)�� 825, 1099, 1100, 1102 Ch 10 �� 634, 638 Ch 11 § 13��435 Ch 32 ��1031 s 1��1101 s 3��1103 ss 6 and 7��1100 s 11 �� 1108 Planning and Building Act (Ds 2010:900)��825

Switzerland Legislation Constitution 1874�� 462, 693 Code Civil, 23 December 2011 641.71�� 915 Federal Decree on Contaminated Sites Art 2�� 634 Arts 15 and 16 �� 642 Art 20��638 CO2 Act 2013��1110

Thailand Legislation Constitution of the Republic of Thailand 2007 Art. 67 �� 463

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table of legislation lxix Enhancement and Conservation of National Environmental Quality Act B.E. 2535 (1992)��638

Turkey Legislation Law on the Environment, No. 2873 and Bylaw 19919 (2008)�� 426

Uganda Legislation Wildlife Act 1996 s 54�� 479

United Kingdom Legislation Game Act 1605 �� 462 The 1605 Act for the Better Preservation of Sea Fish imposed restrictions on the amount of fish that could be caught, and certain types of fishing nets, including certain types of drag nets��855 Works Regulation Act 1881��863 Sea Birds Preservation Act of 1896�� 462 Wild Birds Protection Act 1872�� 462 Commonwealth of Australia Constitution Act 1901 �� 60 s 9�� 60 s 51(i) ��63 s 51(xx)��63 s 51(xxix)��61 Grey Seals Protection Act 1914��474 National Trust Act 1937 s 8��710 Town and Country Planning Act 1947��709, 818 National Parks and Access to the Countryside 1949�� 466 s 17 ��843 s 19�� 840 Countryside Act 1968 s 15 �� 711 Conservation of Seals Act 1970�� 708 European Communities Act 1972�� 355 Pollution Control Act 1974 �� 420 Conservation of Wild Creatures and Wild Plants Act 1975�� 462 Judicature (Northern Ireland) Act 1978 s 18(4)�� 369 Senior Courts Act 1981 s 31(3) and (6)�� 369

Wildlife and Countryside Act 1981��363 s 28�� 834, 840, 845 s 28E�� 364 s 28P(6)–(7)��845 s 28S�� 840 s 35(1)��839 s 37A��836 Pt I��363, 708 Pt II ��363 Court of Session Act 1988 s 27B(2) �� 369 s 27B(2)(a)�� 369 Environment Act 1990 ss 1 and 4��1082 Pt V ��1082 Environmental Protection Act 1990 s 33��1123 s 34��363 s 34(6) ��363 s 73(6)��1030 s 79��368 Pt I��863 Pt II ��368 Pt IIA�� 634, 635, 638, 641, 1082 Planning (Hazardous Substances) Act 1990��367 Town and Country Planning Act 1990�� 367, 709, 818 ss 55, 57�� 709 s 106�� 711 s 288�� 368, 370 s 288(3)�� 369 Ministers (Natural Heritage Scotland) Act 1991 Sch�� 846 Water Resources Act 1991 s 94��362 Protection of Badgers Act 1992 �� 708 Environment Act 1995��722, 1082 s 4(1)�� 367, 722–3 ss 5–9��367 s 40�� 366 s 80�� 360 Pt II ��1082 Pt IV��360, 1082 Ch 1 ��722 Finance Act 1996��916 Human Rights Act 1998�� 355 Scotland Act 1998��356 ss 28–30�� 357 Sch 5��356 Government of Wales Act 1998 �� 356, 357–8 s 22��358 s 79(1)��358

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lxx table of legislation Sch 7��358 Northern Ireland Act 1998 ��356 ss 5–7�� 357 Sch 2 and 3 �� 357 Pollution Prevention and Control Act 1999 ss 2, 7(9), and Sch. 1��359 Countryside and Rights of Way Act 2000 ��363, 845 Finance Act 2000 s 30�� 360 Sch 6��921 Freedom of Information Act 2000��1087 National Parks (Scotland) Act 2000 s 1 �� 840 Sch 1�� 846 Title Conditions (Scotland) Act 2003 s 38(1) and (2)��710 s 38(4)�� 711 s 39�� 711 s 42�� 711 s 90�� 711 Pt 9�� 711 Water Environment and Water Services (Scotland) Act 2003�� 357 Nature Conservation (Scotland) Act 2004��357 s 9��841 s 38�� 836, 840 s 48(2) �� 840 Environmental Assessment (Scotland) Act 2005 s 4(4) �� 357 Companies Act 2006�� Ss 172 and 417��991 Natural Environment and Rural Communities Act 2006��363 s 7�� 711 Northern Ireland (St Andrews Agreement) Act 2006�� 357 Tribunals, Courts and Enforcement Act 2007 �� 371 Climate Change Act 2008�� 356, 360–1, 534–5, 543, 826, 991, 1110 ss 1–10 �� 360 Pt I and 2�� 360 Planning Act 2008�� 818, 823, 831 s 158 ��1116 Regulatory Enforcement and Sanctions Act 2008�� 361, 371, 859, 1121 Climate Change (Scotland) Act 2009 ��357, 534 Electricity Act 2009��568 s 36��568 Water Resources Act 2010 s 161 �� 361

Water and Sewerage Services (Amendment) Act (Northern Ireland) 2010�� 357 Localism Act 2011��818 Wildlife and Natural Environment Act (Northern Ireland) 2011 �� 357 Landfill Tax (Scotland) Act 2014 ��916 Regulatory Reform (Scotland) Act 2014 Pt 3�� 371 Wales Act 2014 ��358 Criminal Justice and Courts Act 2015��370 ss 88–90��370 Planning (Wales) Act 2015��358 Well-Being of Future Generations (Wales) Act 2015 ��358 Environment (Wales) Act 2016��358 Wales Act 2017 ��358 Regulations Title Conditions (Scotland) Act 2003 (Conservation Bodies) Order 2003�� 711 Environmental Information Regulations 2004��973 Environmental Damage (Prevention and Remediation) Regulations 2009 reg 30��716 Air Quality Regulations 2010�� 360 Schs 2–5�� 360 Conservation of Habitats and Species Regulations 2010 reg. 61�� 364 Environmental Civil Sanctions (England) Order 2010 �� 371 Art 14��859 Town and Country Planning (Environmental Impact Assessment) Regulations 2011��354 Greenhouse Gas Emissions Trading Scheme Regulations 2012 ��1098 Pt 7��860 Environmental Damage (Prevention and Remediation) England Regulations 2015��367 Nitrate Pollution Prevention Regulations 2015��362 Environmental Permitting (England and Wales) Regulations 2016�� 354, 359, 363, 367, 974 reg 2(1)��363 reg 12(1)��363 reg 12(1)(b) �� 361 regs 26–7 and 32��359 reg 34(1)��857

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table of legislation lxxi reg 36–37��363 reg 38��359 reg 38(1)��363 Sch 21�� 361 para 3(1)�� 361 Water Supply (Water Quality) Regulations 2016 �� 361 Conservation of Habitat and Species Regulations 2017 reg 20�� 711 Civil Procedure Rules (CPR) rr 41–45��370 r 46.17��370 rr 52.19, and 52.19A��370 r 54.5 and 54.5(5)�� 369

United States Legislation Constitution �� 375, 376, 377, 387, 699 Art 1, § 7, Cl 1 ��910 Art1, § 8, Cl 3�� 682, 694–5, 908 Art 1(8), Cl 18�� 692 Fifth Amendment ��485 Tenth Amendment�� 908 Eleventh Amendment��392 Lacey Act of 1900�� 462 Federal Trade Commission Act 1926�� 1012 s 5�� 1012 Plant Patent Act 1930�� 525 Federal Power Act 1935 �� 555 Soil Conservation Act 1935��440, 456 Soil ConservSoil Conservation and Domestic Allotment Act 1936, Public Law 74–761 Soil Conservation and Domestic Allotment Act 1936��440 Food, Drug, and Cosmetic Act 1938 ��522 Natural Gas Act 1938�� 555 Bald Eagle Protection Act 1940 ��474 Administrative Procedure Act 1946�� 387, 388, 392 s 553 ��388 Lanham Act 1946�� 1012 Federal Insecticide, Fungicide, and Rodenticide Act��1947 ��1000, 1019 Federal Tort Claim Act 1948��1101 Federal Water Pollution Control Act 1948 s 301(b)(2)(A)�� 862 Atomic Energy Act 1954 ��555, 725 Wilderness Act 1964��471 s 2(c)��471

Endangered Species Preservation Act 1966�� 462 Freedom of Information Act 1966�� 734, 978 Fair Packaging and Labelling Act 1967 ��522 Pennsylvania Constitution 1968��1058 Art 1, §27��1058 Wild and Scenic Rivers Act of 1968��419 National Environmental Policy Act 1970/ Regulations�� 386–7, 407, 725, 816, 386, 823, 878–9, 882, 883, 884, 885, 886, 887, 888–90, 891, 892, 893, 896, 897, 1087 § 1500.4 ��887 § 1500–8�� 879 § 1501.4(2)�� 890 § 1501.5��887 § 1501.7�� 890 § 1502.13�� 886 § 1502.14�� 888, 889 § 1503.1(a)(4)�� 890 § 1505.5��895 § 1506.6(b)�� 890 § 1508.4 �� 886 § 1508.7�� 889 § 1508.8 �� 890 § 1508.18�� 884 § 1508.28 �� 884 § 4321–75(c)�� 878 § 4332��885 § 4332(c)�� 878, 884 Clean Air Act 1970 (as amended 1977 and 1990)��375, 377, 378–80, 381, 387, 388, 89, 392, 407, 413, 537–8, 543, 548, 552, 830, 1000 ss 107–110�� 408 s 111��409 s 111(a)(i)��863 s 113�� 408, 410 s 114 �� 410 s 202, 209, 211��409 ss 501–507 ��409 § 7409(b)(1)�� 751–2 Title I�� 407 Title II �� 407, 409 Title IV-A ��414 Title V �� 407, 409 Plant Variety Protection Act 1970 �� 525 Clean Water Act 1972�� 375, 380–2, 383, 390, 420, 423, 426, 725, 1040 §§ 301(a) �� 381 § 305(b)�� 870

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lxxii table of legislation § 404�� 486 § 405(d)��863 § 502(7), 592(12)�� 381 §§ 1311(a), § 1362(7), 1362(12)�� 381 § 1362(19)��423 Indian Wildlife (Protection) Act 1972 s. 12�� 479 Endangered Species Act 1973 ��393, 462, 477 s 4(a) �� 476 s 10��479, 486 Resource Conservation and Recovery Act 1976��382–4, 609–10, 611, 612, 616, 617, 622 § 6903(27)��382 Toxic Substances Control Act 1976 (as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act 2016��580, 582, 585–6, 588, 591, 593, 594, 598–604, 605–6 § 3(2) ��600 § 3(4), 3(12)��601 §4�� 598, 604 §4 (a)(i)–4 (a)(iii)��604 §4 (b)(i), 4 (c), 4(h)��604 § 5��603–4 § 5 (e), (f)�� 603 § 6�� 586, 599, 600–3, 604 § 6(a)�� 602 § 6(b)��601 § 6(b) (1)(B)(i) and (ii) ��601 § 6(b) (1)(C)(iii) ��601 § 6(b) (4)(C) (ii)��601 § 6(b)(4)(D) �� 602 § 6(b)(4)(F)�� 588, 602 § 6(c), 6 (c) (i), 6(c )(2)(E) �� 602 § 6(g)�� 602 § 8��600 Comprehensive Environmental Response, Compensation and Liability Act 1980��384–6, 594, 634, 638, 642, 912, 1038, 1040, 1041 §§ 9601–9675��384 § 9607(1)��384 § 9607(b)(1)��385 Nuclear Waste Policy Act 1982�� 570 Emergency Planning and Community Right-to-Know Act 1986��591, 989 Robert T. Stafford Disaster Relief and Emergency Assistance Act 1988��538 Clean Air Act Amendments 1990 ��379–90, 409, 1000, 1001 Energy Policy Act 1992 �� 555, 562 tits VI, XII, XIII, XX.A �� 555

Government Performance Results Act 1993�� 819, 823 Plant Protection Act 2000�� 514 Energy Policy Act 2005�� 555, 563–4, 567, 725 tits II, III, IV�� 555 Restatement (Second) of Torts § 520�� 1099 Restatement (Third) of Torts: Products Liability 1998�� 1032 Alien Torts Statute (1980)��1142–48 California Global Warming Solutions Act of 2006�� 540 Energy Independence and Security Act of 2007��538 §§ 202(a)(2)(B)(ii)(I)��538 §712(b)(3)(C) ��538 §§922(b)(2), 923(4)��538 § 1101(g)��538 Consolidated Appropriations Act, 2008��538 American Recovery and Reinvestment Act 2009�� 557 Restatement (Third) of Torts 2010 § 20��1031 Disaster Relief Appropriations Act, 2013 ��538 Consolidated Appropriations Act, 2016��562 Frank R. Lautenberg Chemical Safety for the 21st Century Act 2016 see Toxic Substances Control Act 1976 (as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act 2016) Regulations Code of Federal Regulations��388 § § 261.3(a)(2), 261.3(c), 261. 12��383 United States Code Title 35, Section 161 ��527 Uniform Commercial Code s 2�� 1032 Federal Rules of Civil Procedure Art 23��1039 75 Fed. Reg. 25324 (CAFE standards) ��548 75 Fed. Reg. 31514 (PSD programme requirements)��548 80 Fed. Reg. 205 (Clean Power Plan)��548 Cal. Code. Regs. tit. 17 §§ 95460–95476 (2009)�� 546 US EPA, Mandatory Reporting of Greenhouse Gases, 74 Fed. Reg. 56260, 56260 (30 October 2009) § 307(d)��538

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table of legislation lxxiii Securities and Exchange Commission, Commission Guidance Regarding Disclosure Related to Climate Change, 75 Fed. Reg. 6290, 6294 (9 February 2010) ��550 US EPA & National Transportation Highway Safety Administration, Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule, 75 Fed. Reg. 25324 (7 May 2010)��538, 560 US EPA, Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 75 Fed. Reg. 31514 (3 June 2010)��538 2017 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions and Corporate Average Fuel Economy Standards; Final Rule, 77 Fed. Reg. 62623 (15 October 2012)�� 560 Energy and Water Use Labelling for Consumer Products under the Energy Policy and Conservation Act, 16 Code of Federal Regulations Part 305 (2013) �� 1007 US EPA, Standards of Performance for Greenhouse Gas Emissions From New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64509 (23 October 2015)��538 US EPA, Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 205 (23 October 2015)��538 Federal Acquisition Regulation: Public Disclosure of Greenhouse Gas Emissions and Reduction Goals-Representation, 81 Fed. Reg. 33192 (25 May 2016) ��543 US EPA, Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources, 81 Fed. Reg. 35823 (3 June 2016)�� 538, 567 EPA, Standards of Performance for Municipal Solid Waste Landfills, 81 Fed. Reg. 59331 (29 August 2016) �� 552

Emission Guidelines and Compliance Times for Municipal Solid Waste Landfills, 81 Fed. Reg. 59275 (29 August 2016) �� 552 Executive Orders Exec Order 12,191 (1981)��1076 Exec Order 12,866 (1993)��1076 Exec. Order 13514, Federal Leadership in Environmental, Energy, and Economic Performance, 74 Fed. Reg. 52117 (8 October 2009)��543 Exec. Order 13653, Preparing the United States for the Impacts of Climate Change, 78 Fed. Reg. 66817 (6 November 2013) ��543 Exec. Order 13677, Climate-Resilient International Development, 79 Fed. Reg. 58229 (26 September 2014)��543 Exec. Order 13690, Establishing a Federal Flood Risk Management Standard and a Process for Further Soliciting and Considering Stakeholder Input, 80 Fed. Reg. 6425 (30 January 2015)��543 Exec. Order No. 13,693, Federal Leadership on Climate Change and Environmental Sustainability, 80 Fed. Reg. 15871 (19 March 2015) ��543

Venezuela Legislation Law on Risk Management 2009��539

Vietnam Legislation Biodiversity Law No. 20/2008/QH12 (2008)��463

Zimbabwe Legislation Constitution of Zimbabwe 2013�� s 73��1053–4

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List of Contributors Editors Emma Lees is University Lecturer in Environmental and Property Law, Fellow of Fitzwilliam College, and Deputy-Director of the Centre for Environment, Energy, and Natural Resource Governance (C-EENRG), University of Cambridge. Jorge E. Viñuales is Harold Samuel Chair of Law and Environmental Policy, Fellow of Clare College and of the Lauterpacht Centre for International Law, and Founder and former Director of the Centre for Environment, Energy, and Natural Resource Governance (C-EENRG), University of Cambridge.

Contributors Adam Abelkop is Lecturer in Law and Teaching Fellow of the Environmental and Natural Resources Law and Policy Program at Stanford Law School. Marisol Anglés Hernández is a Researcher at the Institute of Legal Research, National Autonomous University of Mexico (Universidad Autónoma de México, UNAM). Stuart Bell is Professor of Environmental Law and Dean of the Faculty for Social Sciences, University of York. Antonio Herman Benjamin is Justice of the National High Court of Brazil (STJ) and Justice of the Superior Electoral Tribunal of Brazil (TSE), and is the founding President of the Brazilian Consumer Law and Policy Institute and Law for a Green Planet Institute. Lucas Bergkamp is a Partner in the Brussels office of Hunton Williams Kurth LLP. Ben Boer is Emeritus Professor in Environmental Law at the University of Sydney. Sanja Bogojević is a Fellow and Associate Professor of Law at Lady Margaret Hall and the Faculty of Law at the University of Oxford. Nicholas Bryner is an Assistant Professor of Law at the Paul M. Hebert Law Center, Louisiana State University. Simon Butt is Professor of Indonesian Law and Associate Director (Indonesia) of the Centre for Asian and Pacific Law, University of Sydney. Hong Sik Cho is the Dean and a Professor of law teaching and learning Environmental Law, Administrative Law, and General Theory of Law and Policy at Seoul National University, School of Law.

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lxxvi list of contributors Gina J. Choi is a Global Fellow at the Frank J. Guarini Center on Environmental, Energy, and Land Use Law at NYU School of Law. Neil Craik is Associate Professor at the University of Waterloo with appointments to the Balsillie School of International Affairs and the School of Environment, Enterprise and Development. Amy Cutter-Mackenzie-Knowles is Professor of Sustainability, Environment and Education at Southern Cross University, School of Education, Australia. Jason Czarnezki is the Gilbert and Sarah Kerlin Distinguished Professor of Environmental Law, and Associate Dean and Executive Director of Environmental Law Program at the Elisabeth Haub School of Law at Pace University, New York. Erin Daly is Professor of Law at Delaware Law School. Bharat H. Desai is Professor of International Law, Jawaharlal Nehru Chair in International Environmental Law and Chairman of Centre for International Legal Studies at School of International Studies of Jawaharlal Nehru University, New Delhi. Olaf Dilling is a Lawyer and Researcher at the UFZ, Department of Environmental and Planning Law, Leipzig. Leslie-Anne Duvic-Paoli is Lecturer at The Dickson Poon School of Law, King’s College London. Douglas Fisher is Emeritus Professor of Law at the Queensland University of Technology in Australia. Elizabeth Fisher is Professor of Environmental Law, Faculty of Law and Corpus Christi College, University of Oxford. Agustín García-Ureta is Professor of Law at the University of the Basque Country (Bilbao, Spain). Markus Gehring is Fellow and Director of Studies in Law at Hughes Hall and Fellow of the Lauterpacht Centre for International Law, University of Cambridge. Michael B. Gerrard is the Andrew Sabin Professor of Professional Practice and Faculty Director of the Sabin Center for Climate Change Law at Columbia Law School. Jan Glazewski is Professor in the Institute of Marine and Environmental Law at the University of Cape Town. Justin Gundlach is a member of the Energy and Environmental Analysis group’s Policy Development team at the New York State Energy Research and Development Authority. Ian Hannam is Associate Professor at the Australian Centre for Agriculture and Law, School of Law, University of New England, Australia. Veerle Heyvaert is Associate Professor (Reader) in Law at the London School of Economics.

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list of contributors lxxvii Monika Hinteregger is Professor of Civil Law at the Institute of Civil Law, Foreign Private and Private International Law of the Karl Franzens University Graz. David Howarth is Professor of Law and Public Policy at the University of Cambridge and a fellow of Clare College, Cambridge. Natalie Jones is a PhD Candidate in International Law at the University of Cambridge. Ferdousi Khatun is a final year PhD Candidate in the School of Education, Sustainability, Environment & Education (SEE) Research Cluster, Southern Cross University. Wolfgang Köck is Professor of Environmental Law, University of Leipzig and Head of the Department of Environmental and Planning Law at Helmholtz Centre for Environmental Research, UFZ, Leipzig. Louis J. Kotzé is Research Professor of Law at the North-West University, South Africa and Visiting Professor of Environmental Law at the University of Lincoln, United Kingdom. Bettina Lange is Associate Professor of Law and Regulation, based at the Centre for SocioLegal Studies, University of Oxford. Marianne Logan is a member of the Sustainability Environment and Education Research cluster at Southern Cross University, Australia. Lye Lin-Heng is an Advocate and Solicitor, Supreme Court of Singapore, and Associate Professor at the Faculty of Law, National University of Singapore (NUS). Sarah M. Main is an Attorney and New York State Excelsior Service Fellow for the New York State Energy Research and Development Authority. Karen Malone is Professor of Sustainability and Leader of the sustainability research group in the Centre for Educational Research and member of the Institute for Culture and Society at the Western Sydney University, Australia. Till Markus is Senior Legal Researcher at the University of Bremen. Janet Milne is Professor of Law at the Vermont Law School. Massimiliano Montini is Professor of Law at the University of Siena (Italy), Life-Member at Clare Hall College and a Fellow of the C-EENRG Research Centre at the University of Cambridge. Karen Morrow is Professor of Environmental Law at Swansea University. Prayekti Murharjanti is a PhD Candidate at the University of Sydney Law School, Australia. Laurent Neyret is Professor of Law at Versailles Paris-Saclay University. Ole W. Pedersen is Reader in Environmental Law and joint Director of Research at Newcastle Law School.

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lxxviii list of contributors Freedom-Kai Phillips is Research Associate with the International Law Research Program (ILRP) at the Centre for International Governance Innovation (CIGI), a member of the IUCN World Commission on Environmental Law, and a Legal Research Fellow with the Centre for International Sustainable Development Law (CISDL). Margot Pollans is Associate Professor at the Elisabeth Haub School of Law at Pace University. Brian Preston is the Chief Judge of the Land and Environment Court of New South Wales, and adjunct Professor at the University of Sydney and at Western Sydney University. Moritz Reese is Senior Researcher at the Department for Environmental and Planning Law at the Helmholtz Centre for Environmental Research – UFZ in Leipzig, Germany. Colin T. Reid is Professor of Environmental Law at the University of Dundee. Lucy Lu Reimers is a PhD Candidate at the Graduate Institute of International and Development Studies in Geneva. Christopher P. Rodgers is Professor of Law at Newcastle University. Montserrat Rovalo Otero is a Legal Consultant and Professor at the Faculty of Law of the National Autonomous University of Mexico (Universidad Autónoma de México, UNAM). Anne Saab is Assistant Professor of International Law at the Graduate Institute of International and Development Studies in Geneva. James Salzman is the Donald Bren Distinguished Professor of Environmental Law with joint appointments at UCLA Law School and the UC, Santa Barbara, School of Environment. Eloise Scotford is Professor of Environmental Law at University College London, UK. Balraj K. Sidhu is Assistant Professor at Rajiv Gandhi School of IP Law, Indian Institute of Technology-Kharagpur and Executive Director of Centre for Advanced Study on Courts & Tribunals, India. Dan Tarlock is University Distinguished Professor Emeritus at the Illinois Tech, ChicagoKent College of Law. Geert van Calster is Professor Ordinarius in the University of Leuven and an independent legal practitioner at the Belgian Bar. Jin Wang is Professor at Peking University Law School (PKULS), Director of Peking University Resources, Energy and Environmental Law Institute, and the Director of Peking University Nuclear Policy and Law Research Center. Xi Wang is Professor and Director of the Environmental and Resources Law Institute of the Law School, Shanghai Jiao Tong University. Julius Weitzdörfer is Director of Studies in Law and Charles & Katharine Darwin Research Fellow at Darwin College, and Affiliated Lecturer at the Faculty of Law, University of Cambridge. Stepan Wood is Canada Research Chair in Law, Society & Sustainability at the Allard School of Law, University of British Columbia, Canada.

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Abbreviations

ADR alternative dispute resolution ASEAN Association of South East Asian Nations CAFE Clean Air For Europe CBD United Nations Convention on Biological Diversity CFCs Chlorofluorocarbons CITES Convention on International Trade in Endangered Species of Wild Flora and Fauna CJEU Court of Justice of the European Union CLCAs comprehensive land claims agreements CPC Communist Party of China CSO civil society organization EEA European Environmental Agency ECHR European Convention on Human Rights ECtHR European Court of Human Rights ECJ European Court of Justice EIA environmental impact assessment EIS Environmental Impact Statement EMS environmental management system EPA Environmental Protection Agency EPBs Environmental Protection Bureaux EPMA Environmental Protection and Management Act ESD ecologically sustainable development ETS Emission Trading Scheme EU European Union EU-ETS EU Emission Trading Scheme FAO Food and Agriculture Organisation FIT feed-in tariff GDP gross domestic product GHG greenhouse gas GMOs genetically modified organisms ICJ International Court of Justice ILO International Labour Organization IMO International Maritime Organisation IPPEP Interactions of Parties in Process of Environmental Protection IPRs intellectual property rights ISO International Organization for Standardization

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lxxx abbreviations

IUCN LMOs MBIs MEA MoU NEPA NPC OECD PIL PP PRC PRTRs PSOL RPPNs TEL TEU TFEU TRC UNCCD

International Union for Conservation of Nature living modified organisms market-based instruments multilateral environmental agreement Memorandum of Understanding National Environmental Policy Act National People’s Congress Organisation for Economic Co-operation and Development public interest litigation Progressive Party People’s Republic of China pollutant release and transfer registries Socialism and Liberty Party private natural heritage reserves transnational environmental law Treaty on the European Union Treaty on the Functioning of the European Union Truth and Reconciliation Commission Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa UNCLOS United Nations Convention on the Law of the Sea UNESCO United Nations Educational, Scientific and Cultural Organisation UNFCCC United Nations Framework Convention on Climate Change WFD Water Framework Directive WHO World Health Organization WTO World Trade Organization

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F R A M I NG C OM PA R AT I V E E N V I RON M E N TA L L AW

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chapter 1

Compa r ati v e En v ironm en ta l L aw Structuring a Field Jorge E. Viñuales

1.1 Overview

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1.2 Comparative Law Methodologies

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1.2.1 Preliminary Observations 1.2.2 The Historical Setting: Descriptive and Evolutionary Approaches 1.2.3 The Conceptual Approach 1.2.4 The Functionalist Approach 1.2.5 The Factual Approach 1.2.6 Legal Formants 1.2.7 The Contextualist Approach 1.2.8 Legal Transplants 1.2.9 From Comparative Method to Comparative Environmental Law

1.3 Methodologies Proposed by Environmental Lawyers 1.3.1 Preliminary Observations 1.3.2 Bottom-up Functionalism 1.3.3 Top-down Functionalism 1.3.4 The Functionalist Approach and the Specificities of Environmental Law

1.4 The Methodological Approach Followed in this Volume

1.4.1 Preliminary Observations 1.4.2 Identifying, Mapping, Organizing, and Analysing the Building Blocks of Environmental Law Systems 1.4.2.1 Forms of Diversity to be Overcome 1.4.2.2 Diversity across Jurisdictions 1.4.2.3 Diversity in the Types of Responses to Common Problems 1.4.2.4 Diversity of Building Blocks 1.4.2.5 Diversity of Interactions 1.4.2.6 Overview of the Methodology

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10 11 12 13 14 15 15 16

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4 jorge e. viñuales 1.4.3 The Architecture of Environmental Law as a Single Overall Technology

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1.5 Concluding Remarks: Structuring a Field

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1.6 Acknowledgements

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1.7 Select Bibliography

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1.1 Overview The expression ‘environmental law’ generally refers to a set of legal arrangements deliberately—and sometimes reactively—used or developed to address specific or general problems arising from the impact of human activity on the natural and built environment. It is, as such, a simple expression referring to a complex set of phenomena. It is not the only expression that has been used in this regard. Leaving aside the terminology employed in languages other than English, several expressions such as ‘nature protection law’, ‘wildlife law’, ‘natural resources law’, among others, can be used to refer to some of the issues covered by the expression ‘environmental law’. Even the latter expression seems too narrow, as some of the legal arrangements that were historically used to address the impact of human activity on the natural and built environment (e.g. the private law tort of nuisance1) as well as some of those that are still used for this purpose today (e.g. the public trust doctrine2) were initially unrelated to environmental protection. If the expression ‘environmental law’ is understood broadly as encompassing the many legal arrangements that can be mobilized to protect the natural and built environment, whether their primary purpose is environmental protection or not, then the meaning of this expression becomes particularly complex because its contours are not fully and specifically delimited. Such complexity is compounded by the fact that, as emerged from the extensive survey conducted to prepare this volume, there are significant variations in the way that environmental law is organized across jurisdictions. The latter two reasons may go some way in explaining why environmental law is conspicuously absent from some of the most significant efforts by comparative law experts to compile and present the state of comparative law as a discipline.3 But they are not sufficient. There are other no less complex subjects that have been successfully tackled by 1 See B. Pontin, ‘Tort Law and Victorian Government Growth: The Historiographical Significance of Tort Law in the Shadow of Chemical Pollution’ (1998) 18 Oxford Journal of Legal Studies 661. 2 See, among others, J. Razzaque, ‘Case Law Analysis: Application of Public Trust Doctrine in Indian Environmental Cases’ (2001) 13 Journal of Environmental Law 221; M. C. Blumm and M. C. Wood (eds.), The Public Trust Doctrine in Environmental and Natural Resources Law (Durham N.C.: Carolina Academic Press, 2nd edn. 2015) (focusing on the United States). 3 See, in particular, R. David et al., International Encyclopaedia of Comparative Law (Paris/Tübingen: Mouton/J.C.B. Mohr, 1971ff), vols. 1–17, followed by instalments 18–42, edited by K. Zweigert and K. Drobnig. Although there are some references to environmental protection, particularly in the instalments, one finds no stand-alone comprehensive coverage of environmental law in this vast work. This is likely due to two reasons. First, the overall architecture of the work was conceived of at a time when environmental law was too new to be taken into account as a stand-alone subject. Secondly, to the extent it has been taken into account, the analysis has been integrated within the overall initial structure of the encyclopaedia.

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comparative environmental law: structuring a field 5 comparative lawyers (e.g. the unification of European private law4). Two other reasons that should be mentioned are the relative novelty of environmental law as a subject5 and the highly technical nature of the phenomena it deals with, which makes it a niche subject. The relevance of these two factors in explaining the gap is further suggested by the fact that most of the existing work on comparative environmental law has been done by environmental lawyers, rather than by comparative law experts. There is indeed a substantial body of work, of varying nature and scope, discussing the environmental law systems of different countries. Such work includes, in addition to some important early contributions,6 a major compilation effort7 that could be characterized, following the terminology of comparative

4 See M. Reimann, ‘The Progress and Failure of Comparative Law in the Second Half of the Twentieth Century’ (2002) 50 American Journal of Comparative Law 671, at 690–5 (praising this achievement but also highlighting its limitations). 5 Yet, novelty cannot explain the limited treatment of environmental law in more recent books. Indeed, neither the Elgar Encyclopaedia of Comparative Law, published in 2006 and then in 2012 (H. Smits (ed.), Elgar Encyclopaedia of Comparative Law (Cheltenham: Edward Elgar, 2nd edn. 2012) nor the Oxford Handbook of Comparative Law (M. Reimann and R. Zimmermann (eds.), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, 2006) contain a chapter on environmental law, despite the fact that their organization would have allowed for such inclusion (indeed, the Elgar Encyclopedia contains a chapter on ‘Human Rights’ and the Oxford Handbook devotes an entire sub-division to ‘Subject Areas’, which include matters such as ‘Comparative Competition Law’). The same observation applies to M. Bussani and U. Mattei (eds.), Cambridge Companion to Comparative Law (Cambridge: Cambridge University Press, 2012), which contains no chapter on environmental law in its section, ‘Comparative Law Fields’. 6 See e.g. M. Parks, ‘Commentary’ [comparative study of reports], in Woodrow Wilson International Centre for Scholars (ed.), The Human Environment, Vol II: Summary of National Reports submitted in preparation of the United Nations Conference on the Human Environment (Washington D.C., 1972), 103–9; P. Sand, Legal Systems for Environmental Protection: Japan, Sweden, United States (Rome: FAO, 1972); N. Geigel Lope-Bello, Cuatro Estudios de Casos sobre Protección Ambiental: Inglaterra, Suecia, Francia, Estados Unidos (Caracas: Fondo Editorial Común, 1973); J. C. Juergensmeyer, Comparative Materials on Land, Natural Resources and Environmental Law (Gainesville: University of Florida, 1973); G. Amendola, La normativa ambientale nei paesi della Comunità Europea (Milano: Giuffré, 1975); R. E. Lutz, ‘An Essay on Harmonizing National Environmental Laws and Policies’ (1975) 1 Environmental Policy and Law 132; R. E. Lutz, ‘Harmonizing National Environmental Laws and Policies (Part II)’ (1976) 1 Environmental Policy and Law 162; J. Nowak (ed.), Environmental law: International and Comparative Aspects. A Symposium. Papers presented at the Conference on International Environmental Law held in London on September 1–3, 1975 (London: BIICL, 1976); J. McLoughlin (ed.), The Law and Practice Relating to Pollution Control in the Member States of the European Communities (London: Graham & Trotman, 1976), vols. 1–9; a symposium which brought comparative environmental law within the radar of the American Journal of Comparative Law, including two contributions on foreign law (by E. Rehbinder and S. Bufford) and a wide-ranging comparative study, R. E. Lutz, ‘The Laws of Environmental Management: A Comparative Study’ (1976) 24 American Journal of Comparative Law 447; S. Ercman (ed.), European Environmental Law: Legal and Economic Appraisal (Bern: Bubenberg-Verlag, 1977); A. C. Gross and N. E. Scott. ‘Comparative Environmental Legislation and Action’ (1980) 29 International and Comparative Law Quarterly 619. 7 See E. Burleson, L. H. Lye, and N. Robinson (eds.), Comparative Environmental Law and Regulation (West Law, 2011–17), vols. I–III. This is a loose-leaf collection covering the environmental law systems of more than sixty countries as well as some other entities (e.g. the EU and other regional economic organizations, but also sub-national entities such as the City of Berlin or Southern Australia). Although the chapters follow an overall common logic, their structure and content vary significantly, which makes comparison difficult. It is, however, a major contribution to the knowledge of the environmental law systems of many countries.

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6 jorge e. viñuales lawyers, as ‘foreign law’,8 as well as a schematic yet informative practitioner guide to comparative environmental law, which is regularly updated.9 Other noteworthy efforts from environmental lawyers include a single-authored book addressing some selected topics in a cross-cutting manner,10 a book-length study on comparative constitutional law as it relates to environmental protection,11 and an edited volume discussing regional—rather than country—approaches.12 More specific studies, with a scope typically delimited both geographically and by subject/topic, are much more frequent and have made an important contribution to the knowledge of foreign systems, their similarities and differences, and their interactions.13 The approach and methodology followed by these and other studies

8 See Reimann, ‘The Progress and Failure of Comparative Law’, at 675. 9 See Global Legal Group, The International Comparative Legal Guide to Environment and Climate Change Law, updated yearly, available at: https://iclg.com/practice-areas/environment-and-climatechange-law/environment-and-climate-change-law-2017 (visited on 29 December 2017). This resource contains, depending on the year, chapters on some twenty to thirty jurisdictions as well as some topical cross-cutting chapters. It is mostly intended as a business development tool. 10 See S. Zellner, Comparative Environmental and Natural Resources Law (Durham N.C.: Carolina Academic Press, 2013), including chapters on the common law as an environmental protection tool, environmental impact assessment, water laws, biological diversity and land preservation laws, and environmental human rights. 11 See J. R. May and E. Daly, Global Environmental Constitutionalism (Cambridge: Cambridge University Press, 2015), which provides a comprehensive analysis of issues that have received more focused attention in a range of more limited studies. For an up-to-date overview see R. O’Gorman, ‘Environmental Constitutionalism: A Comparative Study’ (2017) 6 Transnational Environmental Law 435. 12 See W. Scholtz and J. Verschuuren (eds.), Regional Environmental Law: Transregional Comparative Lessons in Pursuit of Sustainable Development (Cheltenham: Edward Elgar, 2015), which contains sections (each with several chapters) on the African Union, the Organization of American States, the Association of South-East Asian Nations, and EU environmental law. 13 See, among many others, M. Wilde, Civil Liability for Environmental Damage: A Comparative Analysis of Law and Policy in Europe and the United States (Alphen aan den Rijn: Kluwer, 2013); G. Pring and C. Pring, Greening Justice: Creating and Improving Environmental Courts and Tribunals (Washington D.C.: The Access Initiative, 2009); H. T. Anker, O. K. Fauchald, A. Nilsson, and L. Suvantola, ‘The Role of Courts in Environmental Law—A Nordic Comparative Study’ (2009) 23 Nordic Environmental Law Journal 9; M. Hinteregger (ed.), Environmental Liability and Ecological Damage in European Law (Cambridge: Cambridge University Press, 2008); H. Tegner Anker, B. Egelund Olsen, and A. Ronne (eds.), Wind Energy and Legal Systems. A Comparative Perspective (The Hague: Kluwer, 2008); R. Seerden, M. A. Heldweg, and K. R. Deketelaere, Public Environmental Law in the European Union and the United States: A Comparative Analysis (London: Kluwer, 2002); D. H. Cole, Pollution and Property: Comparing Ownership Institutions for Environmental Protection (Cambridge: Cambridge University Press, 2002); C. Backes and G. Betlem (eds), Integrated Pollution Prevention and Control: the EC Directive from a Comparative Legal and Economic Perspective (London: Kluwer Law International, 1999); B. Boer, ‘The Rise of Environmental Law in The Asian Region’ (1999) 32 University of Richmond Law Review 1503; G. Winter (ed.), European Environmental Law: A Comparative Perspective (Aldershot: Dartmouth, 1996); N. A. Robinson, ‘International Trends in Environmental Impact Assessment’ (1992) 19 Boston College Environmental Affairs Law Review 591. See also the wealth of specific studies adopting a foreign law or a comparative law perspective in seven key journals: Environmental Policy and Law (peer-reviewed, 1975–); the Natural Resources Journal (peer-reviewed, 1961–); the Journal of Environmental Law (peer-reviewed, 1989–), the Review of European, Comparative and International Environmental Law (RECIEL) (peer-reviewed, 1992–), Transnational Environmental Law (peer-reviewed, 2012–), Ecology Law Quarterly (student-edited, 1971–), and the Harvard Environmental Law Review (student-edited, 1976–). Some environmental law work (with a focus on foreign law or comparative law) has also appeared in two key comparative law journals, namely the American Journal of Comparative Law and International and Comparative Law Quarterly.

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comparative environmental law: structuring a field 7 varies significantly, a feature that gives the impression of a patchwork of very different contributions lacking overall coherence and consolidation. But this is no different from the wider body of comparative law studies.14 There have been some attempts at providing methodological foundations—or at least analytical approaches—to comparative environmental law, since its early days.15 But these contributions, some of which will be surveyed in this chapter, have been insufficient to firmly establish comparative environmental law as a field of inquiry. This is the broader context within which the research project leading to this volume must be understood. In this context, the purpose of the present volume is two-fold. First, it aims at identifying, mapping, organizing, and analysing the building blocks of environmental law, as it has found expression in and across different jurisdictions. In other words, it aims at providing a cartography of environmental law, with its underlying logic, its main arrangements and their variations, and its embeddedness within the broader legal arrangements developed to tackle other questions. The initial hypotheses underlying this proposition were that, beyond the daunting diversity of environmental law systems, one can discern common foundations and that such foundations can be charted at a middle range scale, which is sufficiently general to be common to many jurisdictions while remaining close enough to the topography to be meaningful from a scientific, policy and practice perspective. Secondly, the volume is an attempt to show that, as a response to the increasingly well understood impact of human activity on the natural and built environment, environmental law can be approached as a single overall technology, the focus, features, and operation of which can be analysed as a whole. The analysis suggests that environmental law systems target mostly the negative ‘externalities’16 of other underlying ‘transactions’ (essentially production, exchange, and consumption processes), rather than the possibility and scope of the transactions themselves.17 As such, environmental law systems operate as an additional layer which is designed to mitigate the negative impacts of certain transactions rather than to shape their inner core and organization. And this modus operandi describes not only the functioning of market-based 14 See Reimann, ‘The Progress and Failure of Comparative Law’, at 686–7. 15 See, among others, Lutz, ‘The Laws of Environmental Management’; P. W. Schroth, ‘Comparative Environmental Law: A Progress Report’ (1976) 1 Harvard Environmental Law Review 603; Gross and Scott, ‘Comparative Environmental Legislation’; D. Tarlock and P. Tarak, ‘Overview of Comparative Environmental Law’ (1983) 13 Denver Journal of International Law and Policy 85; N. Robinson, ‘Comparative Environmental Law: Evaluating How Legal Systems Address “Sustainable Development” ’ (1997) 27 Environmental Policy and Law 338; J. Dernbach, ‘Reflections on Comparative Law, Environmental Law, and Sustainability’ (1998) 3 Widener Law Symposium Journal 279. 16 The concept was coined by A. C. Pigou, The Economics of Welfare (London: Macmillan, 1920) (Pigou used the example of alcohol consumption, where the transaction is that between the seller and the buyer of the alcoholic beverage, which creates negative externalities for society in terms of more demand for health care and security). Pigou suggested a tax intervention to correct the problem. Another approach was proposed by R. Coase, who argued that bargaining would lead to a Pareto efficient outcome (a utility measure) if trade in the externalities is allowed and the transactional costs are low, and this irrespective of the initial allocation of property. See R. Coase, ‘The Problem of Social Cost’ (1960) 3 Journal of Law and Economics 1. In the environmental context, a detailed explanation of this concept was provided by W. Baumol and W. Oates, Theory of Environmental Policy (Cambridge: Cambridge University Press, 2nd edn. 1988) (the entire Part I is devoted to the theory of externalities, see particularly chapters 2 and 3 which provide a non-formal account). 17 See J. E. Viñuales, The Organisation of the Anthropocene: In Our Hands? (The Hague: Brill Research Perspectives, 2018).

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8 jorge e. viñuales instruments (a Pigouvian tax or Coasian trading) but, more generally, that of the bulk of environmental law.18 This conclusion leads back to the ambiguity of the expression ‘environmental law’. Speaking of ‘environmental law’, as most of us do, implies that there are two steps in the legal organization of human activity as it concerns the environment, one that provides form to transactions (e.g. property rights, corporate law, contract law, investment law, trade law, among others) and another that deals with their implications or externalities, where environmental law and other layers come into play. Of course, this macro level analytical distinction does not capture the detail of the interrelations between different sets of legal arrangements, which may be more adequately described as a continuum rather than as a layered pattern. Moreover, in some cases, environmental law may impose an outright prohibition of certain transactions (e.g. mining is not permitted in natural preserves) instead of merely placing some operational limitations on them (e.g. the conduct of an environmental impact assessment, permitting, location, and mitigation requirements). But the distinction remains important to grasp the extent to which environmental law is embedded in the present organization of production, exchange, and consumption in our socio-technical regime. In a different regime, where the very organization of the transactions is shaped by environmental considerations, a separate set of legal arrangements called ‘environmental law’ would be redundant, as every transaction would be organized with environmental considerations in mind. This preliminary chapter focuses on the comparative method as it applies to the overall research project leading to the present volume. The first section discusses a range of methodologies proposed by comparative law experts (section 1.2). As none of these methodologies was developed taking environmental law explicitly into account, and they have seldom been used to study comparative environmental law, the next section discusses some methodologies proposed by environmental lawyers (section 1.3). The following section is devoted to the methodology used for the organization of the underlying research project leading to this volume (section 1.4). Section 1.5 of the chapter concludes by summarizing a tentative structure of comparative environmental law as a field of inquiry. Some select bibliographical material is offered at the end of the chapter (section 1.6).

1.2 Comparative Law Methodologies 1.2.1 Preliminary Observations The method of comparative law was, for many years, more than an important question; it was an existential one. Some prominent comparative law scholars, indeed, saw comparative law essentially as a method rather than a discipline in its own right19 or, as both a method 18 This conclusion is analysed in some detail in the companion monograph to this volume: J. E. Viñuales, The Architecture of Comparative Environmental Law (Oxford: Oxford University Press, forthcoming 2019). 19 See Reimann, ‘The Progress and Failure of Comparative Law’, at 683, referring to the positions of both classical scholars, such as H. C. Gutteridge (Comparative Law: An Introduction to the Comparative Method of Legal Study and Research (Cambridge: Cambridge University Press, 1946), at ix, 1), O. KhanFreund (‘Comparative Law as an Academic Subject’ (1966) 82 Law Quarterly Review 40, at 40–1), and more recent ones (M.-A. Glendon, M. W. Gordon, and C. Osakwe, Comparative Legal Traditions: Text, Materials, and Cases on the Civil and Common Law Traditions, with Special Reference to French, German,

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comparative environmental law: structuring a field 9 and a discipline.20 Method is an important question in many other disciplines beyond law which are interested in comparison.21 It is therefore not surprising that it should be so when the object of study is the law and the context in which it operates. Yet, despite the importance of method in this context, the question remains unsettled, with different competing—albeit perhaps complementary—approaches in use in the field. Their identification is itself a challenge given the many variations within each broad approach.22 The author of an overview of comparative law methodology23 identifies no less than six broad approaches or families of methodologies, with some contemporary extensions. It is useful to recall and characterize them briefly and, to the extent possible, to organize them into a historical narrative that should however not be misinterpreted, as many of these approaches co-exist. I should add that a discussion of method is a necessary first step, not as a matter of dry formalism or theory, but as a prelude to the understanding of what the research project leading to this volume consists of and aims for. Thus, the discussion in the following sections provides the basis to understand how the research was conducted and the results presented, emphasizing when necessary the limitations of the research but also proposing a methodology on the basis of which an unstructured and under-theorized field can be structured and approached. The latter point is important because it conveys the aim of the project, namely to give structure to a field, to map the underpinnings of an overall technology, and to illustrate them by reference to representative examples. As with any first attempt at providing a structure to an unstructured field, the results must aim to serve as a basis for further work and are subject to criticism, which may in time lead to its refinement or replacement. The starting point of this project was indeed the recognition that a return to the foundations was necessary; that a modest mapping and a nalysis of these foundations was a pre-condition for more ambitious and comprehensive subsequent work; that we needed to be modest if we wanted to be genuinely ambitious.

English, and European Law (Saint Paul: West, 2nd edn. 1994), at 8; R. B. Schlesinger, H. W. Baade, P. E. Herzog, and E. M. Wise, Comparative Law: Cases-Text-Materials (New York: Foundation Press, 6th edn. 1998), at 2; J. H. Merryman, The Loneliness of the Comparative Lawyer and Other Essays in Foreign and Comparative Law (The Hague: Kluwer, 1999), at 1–2), possibly including the updated versions of the greatly influential K. Zweigert and H. Kötz, Einführung in die Rechtsvergleichung auf dem Gebiete des Privatrechts, Bd. 1: Grundlagen (Tübingen: J. C. B. Mohr, 1971) (Reimann refers to the English translation by T. Weir, An Introduction to Comparative Law (Oxford: Clarendon Press, 3rd edn. 1998), at 2). 20 See J.-L. Constantinesco, Rechtsvergleichung, Bd 1 Einfürung in die Rechtsvergleichung (Köln: Carl Heymanns Verlag, 1971), at 217–53, quoted by Reimann, ‘The Progress and Failure of Comparative Law’, at 683. 21 For two overviews with a different focus see G. Samuel, ‘Epistemology and Comparative Law: Contributions from the Sciences and Social Sciences’, in M. van Hoecke (ed.), Epistemology and Methodology of Comparative Law (Oxford: Hart, 2004), 35–78; M. Reimann, ‘Comparative Law and Neighbouring Disciplines’, in Bussani and Mattei, Cambridge Companion to Comparative Law, 13–34. 22 See the chapter by R. Michaels relating to what is arguably still the most widely practised approach, namely functionalism: R. Michaels, ‘The Functional Method of Comparative Law’, in Reimann and Zimmermann, The Oxford Handbook of Comparative Law, 340–82. 23 See B. Jaluzot, ‘Méthodologie du droit comparé: bilan et prospective’ (2005) 57 Revue internationale de droit comparé 29, at 38–43. The following presentation, including the work cited, is based on Jaluzot’s account unless otherwise stated.

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10 jorge e. viñuales

1.2.2 The Historical Setting: Descriptive and Evolutionary Approaches By the end of the nineteenth century two main methods co-existed, each with its own intellectual prism and purpose. The first, which a century later was called the ‘descriptive method’, consisted essentially of translations and summaries of foreign legislation relating to certain questions identified on the basis of the comparatist’s domestic law.24 It was a rather limited approach, which did not pay attention to the actual application of law by courts in foreign countries, let alone its broader social operation, but it did lead to the gathering of precious information about foreign law. Around the same time, a very different approach influenced by the work of C. Darwin and H. Spencer, was based on the idea that societies follow certain stages of evolution, with different degrees of legal development in each stage.25 As a result, when comparing the laws of different societies through the prism of this ‘evolutionary approach’, the comparatist had to ensure inter alia that the societies compared had reached the same stage of evolution.26 The two approaches had shortcomings but the second seemed to transpire more clearly in the statement of comparative law methodology canvassed by one of the conveners of the important Congress on Comparative Law held in Paris in 1900, Edouard Lambert, in his report to the Congress.27 Of particular note in this report is the call for a less formalistic and more functional as well as embedded methodology, which anticipates the development of comparative law methodologies starting in the second half of the twentieth century. The paragraph is illuminating and deserves to be quoted in full: If the comparatist limited himself to search the expression of law in the foreign codes and laws, he would often find no more than the revelation of an oldish law already obsolete. What he must study is not only the theoretical structure of each legal system, but also the form that such system has acquired over time and in practice. Knowledge of the substantive solutions reached by the courts of each country cannot be sufficient. To conduct his comparison work, he needs to know the spirit and the raison d’être of each solution. Such solution only reveals its true meaning and form when placed within the entire legislative context to which it belongs. It is possible that a given solution reached for some specific problem in a given country may be the necessary consequence of the legal construction of a general concept that the interpreter distils from the analysis of legal conceptions deeply rooted in the national 24 See L. Aucoc, Les études de législation comparée en France (Paris: Alphonse Picard, 1889), at 4 (contrasting the proposed approach with the much deeper—but much more difficult—approach followed by Montesquieu in his Esprit des lois). 25 See e.g. F. Portal, Politique des lois civiles ou Science des législations comparées (Paris: A. Durand et Pedone Lauriel, 1873 to 1877), 3 vols. 26 This methodological guideline was advanced by J. Kohler, a professor at the University of Berlin and one of the most influential participants in the 1900 Paris Congress, in his presentation on the method of comparative law at the Congrès international de droit comparé held in Paris from 31 July–4 August 1900, cited in Jaluzot, ‘Méthodologie du droit comparé’, at 32 (fn. 14 referring to the source). 27 See E. Lambert, ‘Conception générale, définition, méthode et histoire du droit comparé. Le droit comparé et l’enseignement du droit’, Congrès international de droit comparé, tenu à Paris du 31 juillet au 4 août 1900. Procès verbaux et documents (Paris: LGDJ, 1905), vol. I, at 48.

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comparative environmental law: structuring a field 11 c onscience. More often, however, the solution to a specific problem seems the result of a more or less arbitrary assessment by the legislator of what is practically convenient.28

This paragraph contains, in embryonic form, the key insights that will underpin some of the main approaches to comparative law which were subsequently developed and still d ominate the landscape of comparative law research.

1.2.3 The Conceptual Approach One approach, which has been called ‘conceptual approach’,29 is implicit in the quotation of Lambert’s report reproduced in the previous section, as it is likely in the work of most comparative lawyers, whether they consciously follow it or not. It consists of using concepts or, more specifically, legal notions and instituta as the starting point for comparative analysis. The comparatist will look for a given concept in the different legal systems examined. There is some flexibility in the characterization of the legal concepts to be compared, which will be reflected in this volume by the transversal chapters on concepts as broad as the regulatory30 and judicial organization,31 the distribution of powers32 or property systems,33 to middle range concepts such as environmental principles,34 national plans,35 or liability for environmental damage,36 to more specific concepts such as environmental standards,37 environmental impact assessment processes,38 protection of sites,39 trading schemes,40 and environmental taxation,41 among others. Such definitional flexibility is both a need and a challenge. A need because, in selecting or defining the object to be transversally compared, one cannot expect full correspondence of legal categories across jurisdictions. This creates in turn two main challenges. One is precisely the lack of correspondence not only in the terminology (it is well known that even similar terminology may be misleading) but also in the very instituta or legal concepts. The other concerns the process of selecting or defining the object to be compared. Indeed, in order to define an analytical category that is sufficiently close to the topography of each legal system included in the comparison and that, at the same time, is sufficiently abstract to capture different legal manifestations in different countries, some guidance is required. Otherwise, the research effort runs the risk of selecting or crafting analytical categories that

28 Lambert, ‘Conception générale’, at 50 (my translation). 29 See Jaluzot, ‘Méthodologie du droit comparé’, at 39, referring as the most representative statement of this approach to the work of the British comparatist B. Markesinis, ‘Foreign Law and Comparative Methodology: A Subject and a Thesis’, in B. Markesinis, Foreign Law and Comparative Methodology: A Subject and a Thesis (Oxford: Hart, 1997), at 4–5. However, as discussed later in this chapter, Markesinis is very aware of the limitation of selecting concepts—rather than facts—as the transversal platform for comparative law. 30 See the contribution by B. Preston. 31 See the contribution on environmental adjudication by E. Lees. 32 See the contribution by M. Reese. 33 See the contribution by C. Rodgers. 34 See the contribution by E. Scotford. 35 See the contribution by Wang Jin. 36 See the contribution by M. Hinteregger. 37 See the contribution by B. Lange. 38 See the contribution by N. Craik. 39 See the contribution by C. Reid. 40 See the contribution by S. Bogojevic. 41 See the contribution by J. Milne.

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12 jorge e. viñuales are far too abstract to be meaningful or, in prosaic terms, to bring apples and oranges under the same category.42

1.2.4 The Functionalist Approach The type of guidance mentioned in the previous section has been sought, since the work of Ernst Rabel in the first half of the twentieth century,43 in the notion of function, often understood as the problem addressed by a given arrangement or, as had been anticipated in Lambert’s report, the raison d’être of a given legal solution. There is significant variation within what has been designated as the ‘functionalist approach’ due to the fact that the function of law and legal concepts can be understood in very different ways.44 One commentator identifies four broad elements on which most scholars adhering to functionalism seem to agree.45 First, the functionalist approach uses as its starting point factual configurations rather than legal concepts. Secondly, although social reality and law are thus separated, they are assumed to be related functionally because law is a result of or a response to factual circumstances (e.g. problems that arise in every society). Third, function serves as a tertium comparationis, a comparator. This reflects my previous observation relating to the selection or the definition of the analytical object that makes comparison possible. In the functionalist account, it is the function performed by different legal arrangements in different countries that makes such arrangements comparable. In the context of this volume, the environmental problems selected for analysis are commonly addressed in most jurisdictions: atmospheric pollution,46 water pollution,47 land degradation,48 nature

42 As will be discussed later in this chapter, some authors have suggested a level of analysis that is so reliant on cultural aspects that it may potentially view any legal concept in two or more systems as incommensurable. But the search for such a ‘thick’ description changes entirely the perspective and, perhaps, makes comparison impossible, irrelevant or, at least, unilluminating. The term ‘thick’ used here is derived from the distinction proposed by M. Walzer between ‘thick’ (culturally embedded) and ‘thin’ (highly abstract and therefore more universal) accounts. See M. Walzer, Thick and Thin: Moral Argument at Home and Abroad (Notre Dame: University of Notre Dame Press, 1994). Walzer’s distinction reflects a broader debate over the anthropological conceptions underlying different theories of justice and opposing liberal accounts (particularly John Rawls’ theory of justice, which relies on a ‘thin’ anthropology) and communitarian accounts (which rely on ‘thick’ anthropologies and include the work of a range of moral and political philosophers, including Walzer himself). For Walzer, the distinction is useful to conduct moral philosophy judgements across different cultures. 43 See in this regard E. Rabel, ‘El fomento internacional del derecho privado’ (1931) 18 Revista de derecho privado 321; E. Rabel, ‘Unification du droit de la vente internationale, ses rapports avec les formulaires ou contrats types des divers commerces’, in Introduction à l’étude du droit comparé. Recueil d’études en l’honneur d’E. Lambert, t. 2 (Paris: Sirey/LGDJ, 1938), 688–703; E. Rabel, The Conflict of Laws: A Comparative Study (Ann Arbor: University of Michigan Press, 1945). 44 See Michaels, ‘The Functional Method’, at 340–2 noting that the epicentre of the debate over the merits and limits of functionalism is an introductory chapter in an introductory textbook dating from the 1970s and subsequently updated, namely Zweigert and Kötz, Einführung in die Rechtsvergleichung, at 27–48; M. Graziadei, ‘The Functionalist Heritage’, in P. Legrand and R. Munday (eds.), Comparative Legal Studies: Traditions and Transitions (Cambridge: Cambridge University Press, 2003), 100–27. 45 See Michaels, ‘The Functional Method’, at 342. 46 See the contribution by M. Montini. 47 See the contribution by D. Tarlock. 48 See the contribution by B. Boer and I. Hannam.

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comparative environmental law: structuring a field 13 conservation,49 the management of marine-capture fisheries,50 the regulation of genetically modified organisms,51 climate change and the transition from high- to low-carbon energy systems,52 or the regulation of chemicals,53 waste,54 and polluted sites.55 By way of illustration, despite the differences in the laws that organize the response to atmospheric pollution, such laws are deemed comparable because they all perform the function to tackle the same problem. This example also shows the significant margin of manoeuvre left by functionalism. Indeed, atmospheric pollution is a composite problem which itself federates a variety of more specific problems (e.g. acidification, eutrophication, ground-level ozone, or, seen from a different perspective, stationary and mobile sources, existing and new sources, etc.). Some countries may suffer atmospheric pollution as a result of emissions of certain substances, leading to a specific problem, whereas some other countries may face a different situation. Hence, much like legal constructs, social problems may vary from one country to another. The fourth trait of functionalism, albeit less generally shared by functionalist comparatists, is the evaluative potential of such accounts. If different sets of legal arrangements are considered as responses to the same problem, then it may be possible to assess which one is a ‘better’ response. Broadly characterized by these four common traits, the functionalist approach arguably remains the prevailing methodology in comparative law, both as a method—with great internal variation and some further extensions—to be used, and as a horizon for criticism, in that other competing approaches have arisen as reactions to functionalism.

1.2.5 The Factual Approach One influential extension of functionalism is the so-called ‘factual approach’ developed by Rudolf B. Schlesinger in the context of a major research project on the formation of contracts.56 The project was based on a common questionnaire circulated among comparatists from different jurisdictions and, in order to reduce misunderstandings, the questions were formulated in factual (not legal) terms. The focus of this approach is on facts but not necessarily on functions or social problems. It is based on the definition of case studies, in the form of clearly defined factual circumstances, which are subsequently used to understand how the law in different jurisdictions organizes the solution to them. Other authors have adjusted the factual configurations that provide the common thread for the comparison. One position in this regard has been to focus on cases that have led to litigation and judicial decisions.57 The need to look at the case-law had been emphasized already in Lambert’s report, although he had noted that such a focus cannot 49 See the contribution by A. García Ureta. 51 See the contribution by A. Saab. 50 See the contribution by T. Markus. 52 See the contribution by J. Gundlach and M. Gerrard. 53 See the contribution by L. Bergkamp and A. Abelkop. 54 See the contribution by N. Jones and G. van Calster. 55 See the contribution on contaminated sites by E. Lees. 56 See R. B. Schlesinger (ed.), Formation of Contracts: A Study of the Common Core of Legal Systems (Dobbs Ferry: Oceana, 1968), 2 vols., Introduction. 57 See B. Markesinis, ‘Unité ou divergence: à la recherche des ressemblances dans le droit européen contemporain’ (2001) 53 Revue internationale de droit comparé 810.

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14 jorge e. viñuales be as such sufficient. This application of the factual approach aims to reach a general understanding of a foreign legal system from a patient and careful analysis of specific but highly condensed factual circumstances, as they arise from litigation and judicial decisions. The assumption is that the operation of law in such specific circumstances is a better vantage point or window to reach an understanding of the overall foreign law system. Using a well known metaphor, observing the tree is the most appropriate first step to understand the entire wood. This approach has significant limitations for the subject of this volume. From the perspective of comparative environmental law, one significant challenge would be that a focus on court decisions and litigation may yield a deeply biased picture of the operation of environmental law. A major purpose of environmental law is indeed to avoid reaching the litigation stage, where often damage has already occurred, and courts are seized to decide questions of reparation. Reparation is merely the last stage after three previous stages focusing on cost internalization, prevention, and response to environmental harm.58 A focus on litigation would not exclude the laws focusing on these other stages, as some cases may concern failure to implement such laws, but a major part of how environmental law works in practice would be left out of the picture or, at the very least, downplayed as compared to techniques such as tort litigation.

1.2.6 Legal Formants Another position, elaborated by a prominent Italian comparatist, which can be seen as a variation of functionalism with a focus on the factual operation of law, is the theory of ‘legal formants’.59 This approach concentrates on a variety of materials from which lawyers distil ‘legal rules’, including written legislation, regulations, cases, doctrinal commentary, and other materials. Importantly, the expectation that such materials will converge into a clear and unequivocal rule must be kept under check because different materials may point in (very) different directions. Yet, all the materials or ‘legal formants’,60 whether they are technically binding or not, complete or incomplete, converging or contradictory, must be assessed in order to distil the rule or at least to form an opinion about what the law seems to require in certain situations. This approach can be understood as a phenomenology of law that seeks to more accurately describe the factual process through which law is ascertained, irrespective of the pre- conceptions that ascribe—formally—a binding character only to some of the materials. It thus seeks to come closer to the topography of law, with the many factors influencing its determination and operation. 58 On this distinction among four phases and its application to environmental law see J. E. Viñuales, ‘La distribution de la charge de protéger l’environnement: Expressions juridiques de la solidarité’, in A. Supiot (ed.), Face à l’irresponsabilité: La dynamique de la solidarité (Paris: Conférences du College de France, 2018), 19–36. 59 See R. Sacco, ‘Legal Formants: A Dynamic Approach to Comparative Law (Instalment I of II)’ (1991) 39 American Journal of Comparative Law 1; R. Sacco, Che cos’è il diritto comparato (Milano: Giuffrè, 1992). 60 Sacco, ‘Legal Formants’, at 22.

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comparative environmental law: structuring a field 15

1.2.7 The Contextualist Approach A step further in the contextualization of the law to be compared has been made by a range of stances, which find inspiration in cultural studies, critical legal scholarship, and the study of mentalités (or mindsets), that together can broadly be characterized as a ‘contextualist approach’.61 As with many other critical approaches, in other areas of legal inquiry, the reminder is important and welcome, although in some cases it is unclear whether what is proposed is more than a reminder that law is a complex social process that cannot be artificially separated from its context. It is important for comparatists to keep in mind the complexity of law as a social phenomenon, with the many contradictions, cultural factors, interactions, and processes. But ‘how’ exactly this is to be done and, importantly, ‘why’ it should be done is less clear. Some answers to these questions would refer to historiography and social science methods, as well as to the need to unveil the implicit stances and inaccuracies of dominant discourses about (comparative) law. But as a general matter, the contribution of the con textualist approach is mainly that of a useful complement to add nuance to more comprehensive and constructive approaches.

1.2.8 Legal Transplants One insightful line of research, which pre-dates the return of contextualist approaches and entertains an ambiguous relationship with them, is the study of ‘legal transplants’62 as the object embodying the interactions between legal systems. On the one hand, this focus is the opposite to what a contextualist would hold dear, as the idea of legal transplants implies that laws do not necessarily flow from the local culture but, instead, are borrowed from abroad and transplanted, as an organ would in a surgical intervention. This idea is certainly relevant for environmental law concepts, such as the conduct of a prior environmental impact assessment before a certain activity is allowed to proceed,63 which due to their relative novelty64 have been imported from their place of origin into other legal systems. 61 Among the contributions in this broad line see e.g. M. van Hoecke and M. Warrington, ‘Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law’ (1998) 47 International and Comparative Law Quarterly 495; P. Legrand, Fragments on Law-as-Culture (Deventer: W. E. J. Tjeenk Willink, 1999); H. Muir-Watt, ‘La fonction subversive du droit comparé’ (2000) 52 Revue internationale de droit comparé 503. 62 See A. Watson, Legal Transplants: An Approach to Comparative Law (Charlottesville: University Press of Virginia, 1974). A second edition of this work appeared in 1993. For an overview of the influence of this work see J. W. Cairns, ‘Watson, Walton, and the History of Legal Transplants’ (2013) 41 Georgia Journal of International and Comparative Law 638. 63 See Robinson, ‘International Trends in Environmental Impact Assessment’. 64 Perhaps due to its recent vintage, there is no general historical account of environmental law as such. Some works have focused on one country, e.g. R. Lazarus, The Making of Environmental Law (Chicago:

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16 jorge e. viñuales On the other hand, the study of legal transplants is, in fact, a way of understanding the different operation of similar legal concepts due to the different contexts within which they have laid roots. Hence, the study of legal transplants is in many ways a contextualist approach, which takes into account context for different purposes, including the understanding of where and why a concept originated, how it made its way into other legal systems, and the circumstances of its operation in such other contexts.

1.2.9 From Comparative Method to Comparative Environmental Law The brief survey of comparative law methodologies conducted in the foregoing paragraphs and its relevance for environmental law leads to two basic conclusions. The first is that, as noted in the introduction to this chapter, such methodologies have been very rarely—if at all—used by comparative lawyers to understand matters relating to environmental protection. The second one is that, such gap notwithstanding, some of the methodologies reviewed can indeed be relevant for comparative environmental law. As I will discuss later in this chapter, each of them is used, to varying degrees, in the organization of this volume into four parts focusing, respectively, on countries, problems, systems, and interactions. However, before turning to the discussion of these matters, it is useful to examine first some methodologies that have been proposed by environmental lawyers for the comparative analysis of their subject. University of Chicago Press, 2004), R. N. L. Andrews, Managing the Environment, Managing Ourselves: A History of American Environmental Policy (New Haven: Yale University Press, 2nd edn. 2006), K. Boyd Brooks, Before the Earth Day: The Origins of American Environmental Law 1945–1970 (Lawrence: University of Kansas Press, 2009) (all focusing on the United States). More frequently, the historical development of environmental law in a given jurisdiction is discussed in a chapter of a textbook or an article, e.g. S. Kingston, V. Heyvaert, and A. Čavoški, EU Environmental Law (Cambridge: Cambridge University Press, 2017), 1–7; Wang Xi, Environmental Law in China (The Hague: Kluwer, 2nd edn. 2017); M. Kloepfer, Umweltrecht (Munich: C.H. Beck, 4th edn. 2016), 73–110; P. Leelakrishnan, Environmental Law in India (New Delhi: Butterworths, 4th edn. 2016); M. Prieur, Droit de l’environnement (Paris: Dalloz, 7th edn. 2016); R. Brañes, Manual de Derecho Ambiental Mexicano (Mexico: Fondo de Cultura Económica, 2000); G. Nacarato Nazo and T. Mukai, ‘O Direito Ambiental no Brasil: Evolução Histórica e a Relevância do Direito Internacional do Medio Ambiente’ (2001) 114 Revista de Direito Administrativo 117). Often, reference is made to international developments since 1972, which have received comparatively more attention, e.g. S. J. Macekura, Of Limits and Growth. The Rise of Global Sustainable Development in the Twentieth Century (Cambridge: Cambridge University Press, 2015). The topic seems too recent or too general for historians to address it as such, but there is a wealth of research on specific sectors or topics of environmental law, which seem more suitable objects for historical inquiry, e.g. A. E. Dingle, ‘The Monster Nuisance of All. Landowners, Alkali Manufacturers, and Air Pollution, 1828–1864’ (1982) 35(4) Economic History Review 529; J.-B. Fressoz, ‘Payer pour polluer: l’industrie chimique et la compensation des dommages environnementaux, 1800–1850’ (2013) 28(1) Histoire & mesure 145; R. Hawes, ‘The Control of Alkali Pollution in St. Helens, 1862–1890’ (1995) 1 Environment and History 159; J. McLaren, ‘Nuisance Law and the Industrial Revolution. Some Lessons from Social History’ (1983) 3 Oxford Journal of Legal Studies 155; G. Massard-Guilbaud, Histoire de la pollution industrielle en France, 1789–1914 (Paris: EHESS, 2010).

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comparative environmental law: structuring a field 17

1.3 Methodologies Proposed by Environmental Lawyers 1.3.1 Preliminary Observations The prominent place enjoyed by functionalism in comparative law methodologies is mirrored, to some extent, by the analytical approaches followed by some of the main contributions to comparative environmental law made by environmental lawyers. The rationales underpinning the explicit or implicit choice of functionalism vary somewhat. In some cases, the commonality of the problems and the relatively recent character of the legal responses is highlighted.65 The novelty of environmental law, and the impulsion given by the Stockholm Conference on the Human Environment, held in 1972,66 may also explain why much attention was devoted to comparative work on environmental law during the 1970s.67 Some studies, in addition to the commonality of the problems, make reference to the literature on comparative policy studies and even to some extensions of functionalism in comparative law.68 Other studies emphasize the need to assess the effectiveness or performance of environmental law in tackling certain problems.69 As a general matter, most studies addressing ‘comparative’ environmental law (rather than ‘foreign’ environmental law) focus on legal and institutional responses to problems that virtually all states are believed to face. Yet, beyond this common ground, there are a number of methodological specificities that merit attention. In what follows, I discuss three main methodological variations within this common focus on problems and responses: a first approach proposed by Robert E. Lutz,70 and subsequently followed by A. C. Gross and N. E. Scott,71 focuses on deriving general trends relating to institutional organization, responsibility for environmental protection, and regulatory and preventive strategies; a second approach, proposed by Tarlock and Tarak,72 has a similar focus but with a different analytical cartography providing first a taxonomy of environmental problems, then making a distinction between private and public actions and finally, as 65 See Schroth, ‘Comparative Environmental Law’, at 603 (‘borrowing of foreign ideas is especially easy and attractive in pollution-control law, where many of the technological problems and solutions are new, and the legal system has not yet developed a commitment to a particular approach’); Tarlock and Tarak, ‘Overview of Comparative Environmental Law’, at 85. 66 On the Stockholm Conference see, among many others, L. Emmelin, ‘The Stockholm Conferences’ (1972) 1 Ambio 135; W. Rowland, The Plot to Save the World: The Life and Times of the Stockholm Conference on the Human Environment (Toronto/Vancouver: Clarke, Irwin & Company, 1973); M. Strong, ‘One Year after Stockholm: An Ecological Approach to Management’ (1973) 51 Foreign Affairs 690. 67 See Schroth, ‘Comparative Environmental Law’, for a comprehensive overview of the early literature. 68 Lutz, ‘The Laws of Environmental Management’, at 447 (referring in fn. 2 both to comparative policy studies and to the work of R. Schlesinger and R. David); Gross and Scott, ‘Comparative Environmental Legislation’, at 628 (expressly placing their study as an extension of Lutz’s approach). 69 Robinson, ‘Comparative Environmental Law’, at 339. 70 Lutz, ‘The Laws of Environmental Management’. 71 Gross and Scott, ‘Comparative Environmental Legislation’. 72 Tarlock and Tarak, ‘Overview of Comparative Environmental Law’.

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18 jorge e. viñuales regard the latter, focusing on the public organization of the response (both regulatory and non-regulatory); and a third approach, developed by N. Robinson,73 who makes four specific observations on how to design research projects focusing on comparative environmental law.

1.3.2 Bottom-up Functionalism In a series of pioneering multi-jurisdiction comparative studies published in the 1970s,74 Robert E. Lutz provided a solid basis for the analysis of comparative environmental law. His work had two explicit purposes. One was to ‘uncover the general policies and approaches of national environmental laws’.75 This was an instrumental—research—purpose, which in turn aimed at ‘harmonizing national environmental laws along certain policy lines’.76 With these purposes in mind, he reviewed the institutions and laws of close to thirty countries and focused his comparative study on sixteen of them. The main focus was ‘general laws’, understood as laws that state principles and provide a frame for more specific regulation, as well as some areas where the law was particularly developed, such as water and air pollution laws and, to a lesser extent, planning laws. Yet, the most important point for present purposes is the approach that Lutz follows to understand such instruments. Instead of organizing the material on a country-by-country basis, he proceeds by induction and seeks to derive cross-country patterns. Relying on his extensive survey, he develops a conceptual cartography of issues and then identifies the main options (trends) for each issue. As with most pioneering studies, which rely directly on the ‘raw’ material of legal research, without the benefit of prior analytical frameworks, Lutz’s cartography would require some refinements. But, placed in its context, it is an impressive first cut, both for the range of countries and issues that it covers and for the degree of detail that it provides. The study focuses on three main components on environmental law, namely the organization of the institutions that administer the different laws and regulations, the enlargement of both governmental and private responsibility for environmental protection, and the regulatory and preventive strategies. The first component provides a transversal analysis of administrative organization relating to environmental protection as well as of some issues arising in the context of environmental institution building. After a brief discussion of the main functions pursued by environmental institutions,77 he identifies different options for the horizontal and vertical organization of such institutions. Horizontally, states can allocate responsibility for environmental protection to coordinating councils, new ministries, agencies with independent status, existing ministries, and/or subordinated advisory organizations.78 Vertically, the distribution of competences and tasks among the national, regional, and local levels of government follows different approaches (e.g. national standards, allowance for stricter requirements at the local level, or devolution of primary responsibility to the local

73 Robinson, ‘Comparative Environmental Law’. 74 See Lutz, ‘The Laws of Environmental Management’. See also two prior contributions: Lutz, ‘Essay on Harmonizing National Environmental Laws’; Lutz, ‘Harmonizing National Environmental Laws’. 75 Lutz, ‘The Laws of Environmental Management’, at 448. 76 Ibid., at 518. 77 Ibid., at 451. 78 Ibid., at 451–6.

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comparative environmental law: structuring a field 19 level).79 Sectorially, responsibility for some specific area or problem (e.g. water or air pollution) may be given to a body with a general competence or to a single-purpose agency.80 The second component concerns a diverse range of techniques and legal concepts used to vest in government, companies, and civil society responsibility for environmental protection. These include general policy statements,81 the public trust doctrine,82 the reallocation of the burden of proof,83 resort to the polluter-pays principle84 (a prelude for what was to become market mechanisms in subsequent years), and civil society involvement (through obligations, facilitated standing to bring suits, and public participation in decision-making).85 The third component encompasses a range of regulatory and preventive instruments, including permits,86 prohibitions,87 environmental impact assessments,88 effluent charges,89 subsidies and taxes,90 controls on the use of land,91 and enforcement methods (to determine compliance,92 including special courts and quasi-judicial methods,93 and sanction non-compliance, through civil liability, fines, and criminal sanctions94). Of note is the fact that, according to Lutz, who relies in this regard on a previous study commissioned by the Council of Europe, ‘generally speaking the strategies employed in environmental laws in all the countries studied are regulatory and preventive’.95 He was writing in the 1970s. Resort to market mechanisms has since then grown in importance96 but, as emerged from the survey conducted for this volume, regulatory and preventive approaches remain the backbone of environmental law. If one takes a longer-term historical perspective, the trend seems to move from reparation-based approaches (e.g. tort litigation), to regulatory and preventive approaches, to an increasing share of cost-internalization (market-based) approaches within a broader regulatory and preventive strategy. One remarkable aspect of Lutz’s contribution is that he not only develops a conceptual cartography to understand, through comparison, recurring patterns in the ‘general policies and approaches of national environmental laws’ but, critically, he also applies it to study no less than sixteen different countries. As a single-authored study, this effort remains unmatched to date. In this regard, the two approaches discussed next are less comprehensive, but they offer alternative and useful vantage points from which a transversal and comparative analysis of environmental law can be conducted.

1.3.3 Top-down Functionalism The approach followed by D. Tarlock and P. Tarak presents both similarities and differences with Lutz’s approach. Both studies share a functionalist focus, attempting to recognize patterns 79 Ibid., at 456–7, 458–60. 80 Ibid., at 458. 81 Ibid., at 463–9. 82 Ibid., at 469–70. 83 Ibid., at 470–3. 84 Ibid., at 473–7. 85 Ibid., at 477–86. 87 Ibid., at 491–2. 86 Ibid., at 486–91. 88 Ibid., at 492–7. 91 Ibid., at 504–6. 89 Ibid., at 497–501. 90 Ibid., at 501–4. 92 Ibid., at 507–9. 93 Ibid., at 514–18. 94 Ibid., at 509–14. 95 Ibid., at 486. 96 See e.g. J. Freeman and C. Kolstad (eds.), Moving to Markets in Environmental Regulation. Lessons from Twenty Years of Experience (Oxford: Oxford University Press, 2006). The contributions in this edited volume track the boundary lines between market and non-market based approaches showing that pure market approaches are rare and arguing for a combination of approaches.

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20 jorge e. viñuales in the way different jurisdictions respond to common environmental problems. But they differ in terms of scope and emphasis. Tarlock and Tarak provide a theoretical framework to analyze environmental ‘strategies’ to respond to common environmental ‘insults’ but, unlike Lutz, they are less concerned with the application of this framework to survey the laws and institutions of a range of countries. Their approach is useful, however, for two main reasons. First, it provides an overall picture of environmental law systems which is consistent with Lutz’s (distinguishing private and administrative responses and, among the latter, analyzing the institutional organization and the regulatory techniques used for preventive purposes), thereby consolidating the reliability of this broad picture. Secondly, Tarlock and Tarak add two useful elements, namely a taxonomy of environmental problems (each calling for different types of responses) and an evolutionary dimension (relying on the earlier work of Lynton Caldwell97). The overall structure of Tarlock and Tarak’s cartography has three main layers: a taxonomy of environmental problems (‘insults’); a taxonomy of factors influencing the types of responses to such problems; and a discussion of the organization of legal response. The first layer distinguishes two main forms of environmental insults. Some are ‘episodic’ and the others are ‘persistent’.98 Episodic insults are characterized by their isolated nature or, in other words, by the specificity of their impact (e.g. damage to one identifiable individual). They can be sub-divided into three further categories, past, imminent, and long-term (future) ones. Past insults have been typically addressed by private actions (e.g. torts in the common law and civil liability in continental systems), whereas imminent ones can be addressed by injunctions. Future and long-term insults largely overlap with ‘persistent’ insults. Because of their diffuse and insidious nature, as well as because they often result from activities that are deemed socially desirable at a given point in time, the organization of the response must be of a public nature, through a range of regulatory and non-regulatory techniques, including public actions. The type of responses that a legal system gives to these different categories of problems depends on the specificities of each country or jurisdiction, but a number of common factors shaping these responses can be recognized. As noted by Tarlock and Tarak: [D]etailed knowledge of each country’s culture, history, and political organization is n ecessary to understand fully its environmental laws and policies, but common variables exist which can be used to predict both the level of environmental protection and the means chosen to reach it.99

This is an implicit but clear endorsement of the functionalist approach. The four factors that the authors mention are:100 the degree of industrialization of a country (which is likely to affect the relative importance given to environmental and to non-environmental, e.g. economic, objectives); the political organization of a country (with specific challenges arising from the degree of decentralization of each country); the political ideology (this is a matter that was of more immediate relevance during the Cold War but that remains to some extent relevant today); and the opportunity for public influence (this is particularly 97 See L. Caldwell, ‘Environment: A New Focus for Public Policy?’ (1963) 23 Public Administration Review 132; L. Caldwell, Man and His Environment: Policy and Administration (New York: Harper & Row, 1975). 98 Tarlock and Tarak, ‘Overview of Comparative Environmental Law’, at 487–90. 99 Ibid., at 90. 100 Ibid., at 91–3.

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comparative environmental law: structuring a field 21 important today, with the rise of informational and participatory techniques in relation to environmental matters). The third layer is the most detailed one. Tarlock and Tarak focus on ‘strategies’ to respond to environmental problems. Responses can be of a private nature, rights of action by individuals,101 or of a public—administrative—nature. Public intervention is necessary mostly because of the diffuse and insidious character of some environmental problems. The order of the presentation at this stage is sometimes blurred but, overall, it makes a distinction between goals and strategies. The discussion of goals is embedded in the discussion of strategies, but its emphasis is on two aspects, namely the evolution in the recognition of environmental goals over time, from a natural resource exploitation perspective to environmental protection per se, and the potential trade-offs between environmental protection and socio-economic development.102 The discussion of strategies has two main components, namely the institutional organization of the response and the regulatory and non-regulatory (market mechanisms) that can be used. On the institutional organization dimension, three possibilities are identified and presented as reflecting levels of increasing ambition. They range from the expansion of the jurisdictional scope of existing (sectoral) agencies, to the addition of an overarching coordination institution, to the creation of a new agency specializing in environmental matters.103 On the form of the response, most of the attention is devoted to regulation as a technique for the prevention of environmental harm, with two further extensions as regard the object of the regulation (i.e. whether it focuses on defining the level of protection afforded to a given natural medium or on the pollutants to be controlled as a means to preserve it) and its design (i.e. whether it sets a goal for a regulated entity, which is free to choose the means to achieve it, or it requires the use of certain specific technologies).104 The authors seem to imply that a more advanced response would follow a non-regulatory form or, in today’s terminology, it would take the form of a market mechanism (e.g. pricing mechanisms or subsidies).105 Tarlock and Tarak provide a few applications to illustrate the practical relevance of their cartography, mostly from the United States and some other developed (e.g. France, Japan, Sweden, and the Federal Republic of Germany) and socialist countries (e.g. the USSR). But, as already noted, the emphasis is not on the laws and institutions of these countries but on illustrating a conceptual framework whose aim is to describe environmental law systems across countries. The latter point is the main contribution of Tarlock and Tarak’s study, particularly if one considers that their top-down cartography is largely consistent with— albeit less detailed than—Lutz’s bottom-up one. If the charts are consistent and they seem independent from one another, that is a good indication that we can learn something from them about the topography.

1.3.4 The Functionalist Approach and the Specificities of Environmental Law Despite the significance of their contributions, neither Lutz nor Tarlock and Tarak discuss the methodological aspects of comparative environmental law in depth. Lutz explains how 101 Ibid., at 93–4. 103 Ibid., at 97–9.

102 Ibid., at 95–7. 104 Ibid., at 99–105.

105 Ibid., at 105–8.

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22 jorge e. viñuales he organized and conducted his survey and Tarlock and Tarak offer a grid to read across the laws and institutions of different countries, but they do not address, in detail, some basic methodological questions that comparative law scholars have grappled with for decades. Such questions are addressed in a concise study by Nicholas Robinson.106 The study implicitly adopts a functionalist approach, which is driven by the commonality of the environmental problems faced by all states: When engaging in research to compare the Environment Laws of different nations, one can reasonably expect to be able to identify statutes and legal institutions which bear substantial similarity, depending on the type of natural resource or pollution problem being examined.107

Robinson specifically suggests four reasons why ‘[e]nvironmental [l]aw tends to contain the same sort of substance and procedure across legal traditions’.108 In addition to the commonality of the problems faced by different countries, he refers to the commonality of the technological processes that cause such problems (e.g. motor vehicles that emit lead or refrigeration systems that emit chlorofluorocarbons (CFCs)), the commonality in the administrative structure of modern states, and the similarities in the type of response required by civil society movements, who share information and often are transnationally organized. This is not to say that Robinson neglects the ‘contextual’ specificities of each jurisdiction. He expressly observes, further conveying his functionalist starting point, that ‘every culture responds to these similar situations [commonality of problems] in ways that are shaped by their own traditions and cultures’,109 but such specificities only emerge when analyzing and comparing types of responses to the same problems. Within this functionalist background, Robinson defines the purpose of his study as f ollows: This essay is not a restatement of environmental law from a comparative perspective. Nor is it a compilation of comparative studies, rather this study introduces the elements that should be considered in any serious examination comparing the environmental laws of different states.110

He then mentions four elements to be addressed, namely (i) the jurisdictions that can be compared, (ii) a range of legal questions to be identified in each jurisdiction and compared, (iii) the avenues for the harmonization of environmental law systems (with a strong emphasis on international environmental law instruments and institutions), and (iv) the tools to locate and verify the information. For present purposes, only points (i) and (ii) call for further comment. One interesting feature of Robinson’s discussion of the jurisdictions to be compared is the fact that he singles out the specificities of environmental law that would require some tailoring of the comparative law method.111 He identifies three main specificities. First, he notes that it is not sufficient to select representative legal systems, but it is also necessary to seek comparability with respect to the biomes and natural resources that are addressed by the environmental laws of such countries. Second, the distribution of the competence to address environmental problems across different levels of government, from the local to the national level, is particularly important in this context. He highlights, among others, the 106 Robinson, ‘Comparative Environmental Law’. 107 Ibid., at 341–2. 108 Ibid., at 341. 109 Ibid., at 343. 110 Ibid., at 340 (emphasis added). 111 Ibid., at 340–2.

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comparative environmental law: structuring a field 23 complexities arising in federal systems as well as in other systems where territorial subdivisions (e.g. autonomous regions or indigenous peoples) enjoy significant legislative and regulatory autonomy. Third, he emphasizes the inadequacy of the traditional comparative law focus on legal traditions (i.e. common law, civil law, and socialist law) to grasp the specificities of environmental law. This is because the environmental law systems of countries from these different traditions share many common features, due to the four reasons mentioned earlier. Regarding the transversal elements to be identified in each jurisdiction and compared, Robinson provides a cartography based on a tripartite distinction between: substantive subjects, procedural subjects, and the governmental organization for the administration of these subjects.112 The cartography of environmental law systems that emerges from this tripartite distinction is of a rather descriptive nature, covering some areas typically addressed by environmental law (natural resources, pollution control, process safety, energy, cultural heritage, services and infrastructure, transboundary issues, and shared commons), the main tools (constitutional rights and principles, data gathering and monitoring, informational requirements, environmental standards, techniques to administer such standards, environmental impact assessments, compliance and enforcement systems, and restoration techniques), and the broader institutional organization (international distribution of competences and international cooperative frameworks). It is also somewhat unintuitive (e.g. constitutional principles are deemed procedural rather than substantive) and it lacks the depth of those of Tarlock and Tarak or of Lutz, but it is a useful and largely complete list of issues to look for when investigating the state of environmental law in a given jurisdiction and, as such it is a contribution to comparative environmental law. However, the main limitation of Robinson’s study is not related to the possible shortcomings of his cartography. It is the fact that the cartography is not applied to shed light on environmental law systems. This is likely due to the fact that Robinson has, since the mid-1990s, run a project to describe and analyze the environmental law systems of different countries.113 Taken together, these two works constitute a major contribution to the development of comparative environmental law and, as will be discussed next, some of their insights are integrated into the analytical cartography used in this volume.

1.4 The Methodological Approach Followed in this Volume 1.4.1 Preliminary Observations The organization of this volume is a function of the two main goals pursued by the entire research project, namely (a) the identification, mapping, organization, and analysis of the 112 Ibid., at 342–3. 113 See N. Robinson (ed.), Comparative Environmental Law and Regulation (New York: Oceana Publications, 1996). This project has been pursued by Robinson together with two other colleagues. See Burleson, Lye, and Robinson, Comparative Environmental Law.

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24 jorge e. viñuales building blocks of environmental law systems, with their many facets across jurisdictions, and (b) the unveiling of the overall architecture of environmental law as a single overall technology to govern the effects of human activity on the natural and built environments. The methodology used must thus capture, to use the well-known metaphor, both the ‘trees’ (goal (a)) and the ‘wood’ (goal (b)).

1.4.2 Identifying, Mapping, Organizing, and Analysing the Building Blocks of Environmental Law Systems 1.4.2.1 Forms of Diversity to be Overcome As far as the ‘trees’ are concerned, there are four forms of diversity in the environmental law systems: diversity across jurisdictions, diversity in the types of responses, diversity of the underlying building blocks or components, and diversity in the interaction between such building blocks and the broader legal system in which they are embedded. The methodology used in this volume is intended to address these four forms of diversity. It does so by moving, progressively, from the initial impression of extreme diversity across jurisdictions (Part I) to the recognition of certain patterns in the responses given by environmental law systems to common problems (Part II), then to the identification of a limited set of building blocks underlying the organization of such responses across countries (Part III), and finally to the analysis of common types of interactions between such building blocks (or their expression in the form of organized responses to problems) and the broader legal system in which they are embedded (Part IV). Let me elaborate further on the methodological choices made in each part to move from one vantage point to the other.

1.4.2.2 Diversity across Jurisdictions The initial impression that one gathers when reviewing the environmental laws, regulations, institutions, and practices of different countries is one of extreme diversity across jurisdictions. Part I of the volume is intended to reflect this diversity. It is therefore organized on a country-by-country basis or, to use the terminology of comparative lawyers, it is devoted to the study of ‘foreign’ environmental law. The jurisdictions covered in Part I114 were selected according to several considerations, including the variables identified by Tarlock and Tarak as well as by Robinson in their aforementioned studies: (i) level of environmental 114 The sixteen jurisdictions selected are the following: Australia (see the contribution by D. Fisher), Brazil (see the contribution by A. Benjamin and N. Bryner), Canada (see the contribution by S. Wood), China (see the contribution by Wang Xi), the EU (see the contribution by M. Gehring, F.-K. Phillips, and E. Lees), France (see the contribution by L. Neyret), Germany (see the contribution by O. Dilling and W. Köck), India (see the contribution by B. Desai and B. Sidhu), Indonesia (see the contribution by S. Butt and P. Murharjanti), Japan (see the contribution by J. Weitzdörfer and L. Reimers), Mexico (see the contribution by M. Anglés Hernández and M. Rovalo Otero), Singapore (see the contribution by Lye Lin-Heng), South Africa (see the contribution by J. Glazewski), South Korea (see the contribution by Hong Sik Cho and G. J. Choi), the United Kingdom (see the contribution by S. Bell), and the United States (see the contribution by J. Salzman).

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comparative environmental law: structuring a field 25 footprint (this called for the inclusion of jurisdictions such as China, India, Brazil, the European Union (EU), and the United States, among others); (ii) development profile (this called for the inclusion of both developed and developing countries, including emerging economies); (iii) differences in political organization (including a city-state, e.g. Singapore, a unitary state, e.g. France, more decentralized jurisdictions, e.g. the EU, India, Mexico, and the United States); (iv) the range of problems represented (including countries that are particularly relevant for some questions such as: nuclear energy safety, e.g. Japan; forest management, e.g. Brazil and Indonesia); (v) different cultural and political traditions (this consideration was addressed by selecting jurisdictions from different continents). At the same time, Part I makes an initial attempt at overcoming diversity and highlighting commonalities through the use of a common chapter structure across the board. This common structure is intended to capture the broad areas highlighted in the studies of Lutz, Tarlock and Tarak, and Robinson, namely the allocation of competences relating to environmental protection, the structure and substance of environmental law, and the implementation framework.

1.4.2.3 Diversity in the Types of Responses to Common Problems Part II goes a step further and seeks to extract patterns from a range of jurisdictions regarding the types of responses given to common problems. Seen from this functionalist vantage point, the impression of diversity across jurisdictions is greatly reduced. Although the same problem may receive a different response in different jurisdictions, the range of such responses is limited and can, in virtually all cases, be reduced to a few basic options or approaches. Part II thus analyzes, for a number of problems commonly faced by different countries, the entire of operation of a system (from its allocation of competence to the structure and substance of its laws to the implementation framework) for this specific purpose in order to identify the limited range of possible responses. The problems selected for Part II include local, transboundary, and global problems, and they reflect the main sectors addressed in environmental law systems by sector-specific legislation and regulation: air pollution,115 water management,116 land degradation,117 nature conservation,118 fisheries management,119 genetically modified organisms,120 climate change and energy transitions,121 chemical regulation,122 waste regulation,123 and polluted sites.124 The range of possible responses given to each of these problems is discussed in more detail in the relevant chapters of this volume. In this regard, the methodological choice followed in the research project aimed insofar as possible to develop a taxonomy of

115 See the contribution by M. Montini. 116 See the contribution by D. Tarlock. 117 See the contribution by B. Boer and I. Hannam. 118 See the contribution by A. García Ureta. 119 See the contribution by T. Markus. 120 See the contribution by A. Saab. 121 See the contribution by J. Gundlach and M. Gerrard. 122 See the contribution by L. Bergkamp and A. Abelkop. 123 See the contribution by N. Jones and G. van Calster. 124 See the contribution on polluted sites by E. Lees.

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26 jorge e. viñuales responses to each problem and to identify the most representative illustrations of each type of response.

1.4.2.4 Diversity of Building Blocks It is important to note, however, that such responses typically rely on a combination of instruments and techniques as well as on certain underlying legal infrastructures. Thus, behind the limited range of responses to different problems it is possible to discern a more fundamental layer of building blocks or components that, through different combinations, give shape to a given type of response to a particular problem. The exploration of this more fundamental layer presents both advantages and disadvantages. The main advantage is the fact that it allows for further reduction of the variations across environmental law systems. If the great diversity across jurisdictions and even the more limited diversity of types of responses to common problems can be further pinned down to a range of basic building blocks or components of all environmental law systems, then it becomes possible to see environmental law as a whole and, as I will discuss in the next section, as a single overall technology. This is, in essence, what the studies of both Lutz and Tarlock and Tarak tried to achieve, the unearthing of foundational blocks hidden below different strata of diversity. At this stage, the exploration of this deeper layer faces a major challenge, namely the need to chart a diverse range of building blocks or components of very different natures. This cartographic exercise raises three difficulties relating, r espectively, to completeness, scale, and classification. The first difficulty relates to the completeness of the account of these building blocks. An account that over-emphasizes or, conversely, neglects the role of some important building blocks (e.g. approaching environmental law systems through the sole prism of market mechanisms, thereby neglecting basic regulatory and liability instruments) may be useful but only as a partial account of the system components. One avenue to pursue completeness is to develop a long list of concepts to be included in the overall account. There is, however, a trade-off between such an approach and considerations of scale and classification because the list may include categories that operate at very different scales (e.g. ‘property rights’ and ‘environmental impact assessments’, or ‘regulation’ and ‘effluent charges’) and that, therefore, should be classified using a consistent key. The determination of the appropriate scale is a delicate matter because it depends on the goal pursued by the research project. The more abstract the account, the more encompassing it is likely to be, but at the risk of far too crude a depiction of reality. Indeed, if the cartographic scale provides little detail or resolution, the understanding of this topography remains superficial. A possible illustration would be the distinction between three broad areas (allocation of competences, the structure and substance of environmental law, and the implementation framework) made in the studies of Lutz, Tarlock and Tarak, and Robinson, as well as in Part I of this volume. Such distinction may provide a useful first cut but it is of little use in understanding how an environmental law system responds to a particular problem or the specific instruments used to address some aspect of the problem. As first approximations to reality, these and other distinctions may be analytically unavoidable, but they remain overtly general and, due to this very generality, they may obscure reality by conflating heterogeneous instruments within similar categories. For example, there are very different techniques and instruments that could be deliberately amalgamated and subsumed, in pursuance of a free-market agenda, under the broad category of ‘regulation’, a

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comparative environmental law: structuring a field 27 category that carries the connotation of being business unfriendly in some circles. Setting the appropriate scale is also very important for modelling the impact of different portfolios of policies. That has become a major issue with climate policy modelling, which relies on very crude and unrealistic categories of policies. Of the three studies on comparative environmental law reviewed earlier, only those of Lutz and Tarlock and Tarak provide a full cartography, albeit with varying scales. Whereas Tarlock and Tarak’s cartography is quite encompassing, it remains fairly abstract in its attempt to capture variations among different jurisdictions and types of responses, and it pays limited attention to some major techniques and instruments (e.g. education policies, informational instruments, labelling requirements, natural preserves, etc.). Lutz’s study, which is based on a more explicit pattern induction effort, provides higher resolution, but it introduces a number of classificatory difficulties. For example, it merges a range of very different concepts (from policy statements, to the polluter-pays principle, to civil society involvement or, still, the reallocation of the burden of proof) into a broad category relating to the enlargement of private and public responsibility for environmental protection. Setting an appropriate scale is important for classification purposes. The intelligibility of a cartography lies, to a great extent, in the ability of the taxonomy to both be comprehensive and avoid major overlaps across categories. To continue with the previous example, the category ‘regulation’ is much more general than other categories such as ‘permits’, ‘environmental impact assessments’, or ‘standards’. Regulation may include several of these more specific categories. Moreover, even techniques commonly understood as market mechanisms, such as a cap-and-trade system, a feed-in-tariff scheme or even taxes, may be part of a regulatory intervention. As noted earlier, the classification of a given policy intervention instrument under the category ‘regulation’ may seek or, at least, have political implications. A suitable classification is, in addition, important from the perspective of modelling the effects of certain policy intervention instruments and their interaction. Part III of this volume, devoted to the components underpinning environmental law systems, addresses the diversity of building blocks by introducing a distinction between the legal organization of the infrastructure of such systems and the policy intervention instruments to which systems can resort. The first category includes seven components, namely: principles organizing the entire environmental law system,125 distribution of powers,126 property systems,127 regulatory organization,128 the organization of the science-policy interface,129 transnational networks,130 and adjudication systems.131 These components provide the specific infrastructural context within which the range of policy instruments subsumed under the second category operate: command-and-control instruments (planning instruments,132 protected sites,133 standards and permitting systems,134 and environmental impact assessments135), market mechanisms (environmental taxes and tax expenditures,136 trading schemes137), informational techniques (education policies,138 participatory 125 See the contribution by E. Scotford. 126 See the contribution by M. Reese. 127 See the contribution by C. Rodgers. 128 See the contribution by B. Preston. 129 See the contribution by E. Fisher. 130 See the contribution by V. Heyvaert. 131 See the contribution on environmental adjudication by E. Lees. 132 See the contribution by Wang Jin. 133 See the contribution by C. Reid. 134 See the contribution by B. Lange. 135 See the contribution by N. Craik. 136 See the contribution by J. Milne. 137 See the contribution by S. Bogojevic. 138 See the contribution by A. Cutter-Mackenzi, M. Logan, F. Khatun, and K. Malone.

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28 jorge e. viñuales mechanisms,139 and labelling140), and ex post injury-based instruments (liability instruments,141 and rights-based approaches142). As any analytical cartography, the one structuring Part III of this volume has limitations. But it presents the advantage of accommodating the entire range of building blocks addressed in previous classifications (including those of Lutz and Tarlock and Tarak) and several others, with higher resolution and avoiding major classification overlaps. It is, despite its limitations, a conceptual cartography that explicitly attempts to respond to the completeness, scale, and classification challenges.

1.4.2.5 Diversity of Interactions In addition to the specific infrastructural context, the components forming such context as well as the policy instruments mentioned in the previous section are embedded in what could be seen as a ‘general’ (by contrast to a ‘specific’) infrastructural context formed by the entire legal system of a country as well as the international norms applicable to it. Environmental law systems are both part of such general infrastructural context, as they rely on its organization and instruments, and sufficiently distinct from it, because they have their own specificities. The interactions between the components forming environmental law systems and their broader legal context also present a significant degree of diversity. Part IV of this volume addresses such diversity from five recognizable vantage points, namely the interactions with public,143 private,144 and criminal law145 as well as with private146 and public international law.147 From an analytical standpoint, categories such as ‘private’ or ‘public’ law are rather weak because they obscure the great diversity of institutions, laws, regulations, and practices that are encompassed by them. Yet, we decided to maintain them because they are very widely used in environmental law scholarship and, as a result, there was an expectation that the volume would explicitly address the interactions between, on the one hand, environmental law systems and, on the other hand, public law, private law, criminal law, private international law, and public international law. The authors of the chapters in Part IV were aware of the limitations of this methodological choice, and took them into account in their contributions.

1.4.2.6 Overview of the Methodology The methodologies on which this volume relies to address the four types of diversity described in the previous paragraphs is summarized in Figure 1.1. The main point shown in Figure 1 is that the methodology of the research project leading to his volume consists of four vantage points of the same reality, i.e. environmental law systems. As discussed next, these vantage points are articulated among themselves as increasingly (clockwise) abstract approximations of a single overall technology.

139 See the contribution by K. Morrow. 140 See the contribution by J. Czarnezki, M. Pollans, and S. Main. 141 See the contribution by M. Hinteregger. 142 See the contribution by L. Kotzé and E. Daly. 143 See the contribution by O. Pedersen. 144 See the contribution by D. Howarth. 145 See the contribution on criminal law by E. Lees. 146 See the contribution by G. van Calster. 147 See the contribution by L.-A. Duvic Paoli.

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comparative environmental law: structuring a field 29

Countries (Part I)

Interactions (Part IV)

Environmental Law Systems

Problems (Part II)

Systems (Part III)

Figure 1.1 Overview of the Methodology

1.4.3 The Architecture of Environmental Law as a Single Overall Technology The four methodologies or vantage points discussed so far are organized along a scale that goes from particularity (i.e. the specific institutions, laws, regulations, and practices in a given country at a given time) to generality or abstraction (e.g. the components of the overall technology and their embeddedness in the broader legal system). It is only by going deeper into the analysis that the architecture of environmental law as a single overall technology becomes increasingly recognizable and can be unveiled. As noted earlier, the initial impression of extreme diversity that arises from the study of the environmental law systems of different jurisdictions progressively dissipates as we start to discern broad patterns in the organization of these systems (common areas: allocation of powers, structure and substance of the laws, implementation frameworks), subsequently in the limited range of responses to common problems, then in the common set of building blocks or components underpinning all such responses, and finally in the common types of interactions that these components entertain with their broader legal context. Figure 1.2 summarizes the overall architecture of environmental law systems organized along the scale of abstraction. Each stage with its sub-headings is analyzed in detail in this volume. For present purposes, what must be emphasized is the process that led to the selection of the methodology used in this research project, and the correspondence between this methodology and the two aforementioned goals of the project. They provide the backbone for the analysis of comparative environmental law undertaken in this Handbook.

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30 jorge e. viñuales Scale: from particular to general Stage I: Analysis of different countries Main areas: 1. Allocation of powers among sectors, scales and stakeholders 2. Structure and substance of the relevant laws and regulations 3. Implementation frameworks

Stage II: Responses to common problems Common problems: 1. Air pollution 2. Water management 3. Land degradation 4. Nature conservation 5. Fisheries management 6. Genetically modified organisms 7. Climate change and energy transitions 8. Chemical regulation 9. Waste regulation 10. Contaminated sites

Stage III: System components

Stage IV: Interactions with the broader context

Specific infrastructure: 1. Environmental principles 2. Distribution of powers 3. Property systems 4. Regulatory organisation 5. Science and policy interface 6. Transnational networks 7. Adjudication systems Policy instruments: Command-and-control 8. Planning instruments 9. Protection of sites 10. Standards and permitting 11. Environmental impact assessments Market mechanisms 12. Environmental taxation/subsidies 13. Trading schemes Informational techniques 14. Education policies 15. Participatory mechanisms 16. Labelling Ex post injury-based mechanisms 17. Liability 18. Rights-based approaches

Interactions with: 1. Public law 2. Private law 3. Criminal law 4. Private international law 5. Public international law

Figure 1.2 Architecture of Environmental Law Systems

1.5 Concluding Remarks: Structuring a Field Studying environmental law systems in comparative perspective is, in my view, particularly important today, even more so than in the late 1960s and early 1970s, when the first modern environmental law systems were enacted. The importance comes not only from our peculiar

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comparative environmental law: structuring a field 31 ‘epoch’, which some have called the ‘Anthropocene’ to emphasize the unprecedented influence of humans as a geological force shaping the Earth system,148 but perhaps more prosaically from the fact that despite the widespread recognition of the need to protect the environment, no general account of comparative environmental law has been attempted for decades. Yet, understanding how similar problems (whether environmental problems or instrumental problems, e.g. standing for legal suits, standard-setting, etc.) are addressed in a wide range of now mature systems is useful and important to continuously improve environmental law and thereby to protect the environment. When one looks closely at the wide range of legal arrangements commonly designated with the expression ‘environmental law’, the first impression of daunting diversity slowly dissipates unveiling a remarkable degree of convergence in the organization of environmental law systems in each jurisdiction, the responses to common problems, the underlying building blocks that constitute the system, and their interactions with the broader foundations of legal systems. The focus in this volume on the unity rather than on the diversity of environmental law is by no means an attempt to downplay the wealth of legal arrangements, practices, and cultural features influencing its operation. It is simply a modest yet ambitious first step to structure a field in order to go much further in the construction but also the critical deconstruction of the phenomena we call environmental law. It is an invitation, from the editors and contributors of this volume, to carry out further work, serious and responsible work, to understand and refine one of the most important technologies that humankind has designed to face our environmental epoch.

1.6 Acknowledgements The author acknowledges support from the Newton Fund (BRIDGE, ESRC grant no. ES/N013174/1), the Cambridge Land Economy Advisory Board (CLEAB), and the Department of Land Economy’s C-EENRG Establishment Grant.

1.7 Select Bibliography On comparative law and method Aucoc, L., Les études de législation comparée en France (Paris: Alphonse Picard, 1889). Bussani, M. and U. Mattei (eds.), Cambridge Companion to Comparative Law (Cambridge: Cambridge University Press, 2012). Constantinesco, J.-L., Rechtsvergleichung, Bd 1 Einfürung in die Rechtsvergleichung (Köln: Carl Heymanns Verlag, 1971). David, R. et al, International Encyclopaedia of Comparative Law (Paris/Tübingen: Mouton/J.C.B. Mohr, 1971ff), vols. 1–17, followed by instalments 18–42 (with some instalment gaps), edited by K. Zweigert and K. Drobnig. Glendon, M.-A., M. W. Gordon, and C. Osakwe, Comparative Legal Traditions: Text, Materials, and Cases on the Civil and Common Law Traditions, with Special Reference to French, German, English, and European Law (Saint Paul: West, 2nd edn. 1994). Jaluzot, B., ‘Méthodologie du droit comparé: bilan et prospective’ (2005) 57 Revue internationale de droit comparé 29. 148 See P. J. Crutzen, ‘Geology of Mankind’ (2002) 415 Nature 23.

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32 jorge e. viñuales Lambert, E., ‘Conception générale, définition, méthode et histoire du droit comparé. Le droit comparé et l’enseignement du droit’, Congrès international de droit comparé, tenu à Paris du 31 juillet au 4 août 1900. Procès verbaux et documents, vol. I (Paris: LGDJ, 1905). Legrand, P., Fragments on Law-as-Culture (Deventer: W.E.J. Tjeenk Willink, 1999). Markesinis, B., Foreign Law and Comparative Methodology: A Subject and a Thesis (Oxford: Hart, 1997). Markesinis, B., ‘Unité ou divergence: à la recherche des ressemblances dans le droit européen contemporain’ (2001) 53 Revue internationale de droit comparé 810. Merryman, J. H., The Loneliness of the Comparative Lawyer and Other Essays in Foreign and Comparative Law (The Hague: Kluwer, 1999). Michaels, R., ‘The Functional Method of Comparative Law’, in M. Reimann, R. Zimmermann (eds.), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, 2006), pp. 340–82. Muir-Watt, H., ‘La fonction subversive du droit comparé’ (2000) 52 Revue internationale de droit comparé 503. Portal, F., Politique des lois civiles ou Science des législations comparées (Paris: A. Durand et Pedone Lauriel, 3 vols. 1873–77). Rabel, E., ‘El fomento internacional del derecho privado’ (1931) 18 Revista de derecho privado 321. Rabel, E., ‘Unification du droit de la vente internationale, ses rapports avec les formulaires ou contrats types des divers commerces’, in Introduction à l’étude du droit comparé. Recueil d’études en l’honneur d’E. Lambert, t. 2 (Paris: Sirey/LGDJ, 1938), pp. 688–703. Rabel, E., The Conflict of Laws: A Comparative Study (Ann Arbor: University of Michigan Press, 1945). Reimann, M., ‘The Progress and Failure of Comparative Law in the Second Half of the Twentieth Century’ (2002) 50 American Journal of Comparative Law 671. Reimann, M. and R. Zimmermann (eds.), The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, 2006). Sacco, R., ‘Legal Formants: A Dynamic Approach to Comparative Law (Instalment I of II)’ (1991) 39 American Journal of Comparative Law 1. Sacco, R., Che cos’è il diritto comparato (Milano: Giuffrè, 1992). Schlesinger, R. B. (ed.), Formation of Contracts: A Study of the Common Core of Legal Systems, 2 vols. (Dobbs Ferry: Oceana, 1968). Schlesinger, R. B., H. W. Baade, P. E. Herzog, and E. M. Wise, Comparative Law. Cases-Text-Materials (Foundation Press, 6th edn. 1998). Smits, H. (ed.), Elgar Encyclopaedia of Comparative Law (Cheltenham: Edward Elgar, 2nd edn. 2012). van Hoecke, M. (ed.), Epistemology and Methodology of Comparative Law (Oxford: Hart, 2004). van Hoecke, M. and M. Warrington, ‘Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law’ (1998) 47 International and Comparative Law Quarterly 495. Watson, A., Legal Transplants: An Approach to Comparative Law (Charlottesville: University Press of Virginia, 1974). Zweigert, K. and H. Kötz, Einführung in die Rechtsvergleichung auf dem Gebiete des Privatrechts, Bd. 1: Grundlagen (Tübingen: J. C. B. Mohr, 1971) (English translation by T. Weir, An Introduction to Comparative Law, Oxford: Clarendon Press, 3rd edn. 1998).

On environmental law and policy Andrews, R. N. L., Managing the Environment, Managing Ourselves: A History of American Environmental Policy (New Haven: Yale University Press, 2nd edn. 2006). Blumm, M. C. and M. C. Wood (eds.), The Public Trust Doctrine in Environmental and Natural Resources Law (Durham N.C.: Carolina Academic Press, 2nd edn. 2015). Boyd Brooks, K., Before the Earth Day: The Origins of American Environmental Law 1945–1970 (Lawrence: University of Kansas Press, 2009). Brañes, R., Manual de Derecho Ambiental Mexicano (Mexico: Fondo de Cultura Económica, 2000). Caldwell, L., ‘Environment: A New Focus for Public Policy?’ (1963) 23 Public Administration Review 132. Caldwell, L., Man and His Environment: Policy and Administration (New York: Harper & Row, 1975).

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comparative environmental law: structuring a field 33 Dingle, A. E., ‘The Monster Nuisance of All: Landowners, Alkali Manufacturers, and Air Pollution, 1828–1864’ (1982) 35(4) Economic History Review 529. Freeman, J. and C. Kolstad (eds.), Moving to Markets in Environmental Regulation. Lessons from Twenty Years of Experience (Oxford: Oxford University Press, 2006). Fressoz, J.-B., ‘Payer pour polluer: l’industrie chimique et la compensation des dommages environnementaux, 1800–1850’ (2013) 28/1 Histoire & mesure 145. Kingston, S., V. Heyvaert, and A. Čavoški, EU Environmental Law (Cambridge: Cambridge University Press, 2017). Kloepfer, M., Umweltrecht (Munich: C.H. Beck, 4th edn. 2016). Lazarus, R., The Making of Environmental Law (Chicago: University of Chicago Press, 2004). Leelakrishnan, P., Environmental Law in India (New Delhi: Butterworths, 4th edn. 2016). Macekura, S. J., Of Limits and Growth: The Rise of Global Sustainable Development in the Twentieth Century (Cambridge: Cambridge University Press, 2015). McLaren, J., ‘Nuisance Law and the Industrial Revolution: Some Lessons from Social History’ (1983) 3 Oxford Journal of Legal Studies 155. Nacarato Nazo, G. and T. Mukai, ‘O Direito Ambiental no Brasil: Evolução Histórica e a Relevância do Direito Internacional do Medio Ambiente’ (2001) 114 Revista de Direito Administrativo 117. Pontin, B., ‘Tort Law and Victorian Government Growth: The Historiographical Significance of Tort Law in the Shadow of Chemical Pollution’ (1998) 18 Oxford Journal of Legal Studies 661. Prieur, M., Droit de l’environnement (Paris: Dalloz, 7th edn. 2016). Razzaque, J., ‘Case Law Analysis: Application of Public Trust Doctrine in Indian Environmental Cases’ (2001) 13 Journal of Environmental Law 221. Rowland, W., The Plot to Save the World: The Life and Times of the Stockholm Conference on the Human Environment (Toronto/Vancouver: Clarke, Irwin & Company, 1973). Strong, M., ‘One Year after Stockholm: An Ecological Approach to Management’ (1973) 51 Foreign Affairs 690. Viñuales, J. E., ‘La distribution de la charge de protéger l’environnement: Expressions juridiques de la solidarité’, in A. Supiot (ed.), Face à l’irresponsabilité: La dynamique de la solidarité (Paris: Conférences du College de France, 2018), pp. 19–36. Viñuales, J. E., The Organisation of the Anthropocene: In Our Hands? (The Hague: Brill Research Perspectives, 2018). Wang Xi, Environmental Law in China (The Hague: Kluwer, 2nd edn. 2017).

On comparative environmental law Amendola, G., La normativa ambientale nei Paesi della Comunità europea (Milano: Giuffré, 1975). Anker, H. T., B. Egelund Olsen, and A. Ronne (eds.), Wind Energy and Legal Systems: A Comparative Perspective (The Hague: Kluwer, 2008). Anker, H. T., O. K. Fauchald, A. Nilsson, and L. Suvantola, ‘The Role of Courts in Environmental Law—A Nordic Comparative Study’ (2009) 23 Nordic Environmental Law Journal 9. Backes, C. and G. Betlem (eds), Integrated Pollution Prevention and Control: The EC Directive from a Comparative Legal and Economic Perspective (London, Kluwer Law International, 1999). Boer, B., ‘The Rise of Environmental Law in the Asian Region’ (1999) 32 University of Richmond Law Review 1503. Burleson, E., L. H. Lye, and N. Robinson (eds.), Comparative Environmental Law and Regulation (West Law, 2011–17), vols. I–III. Cole, D. H., Pollution and Property: Comparing Ownership Institutions for Environmental Protection (Cambridge: Cambridge University Press, 2002). Dernbach, J., ‘Reflections on Comparative Law, Environmental Law, and Sustainability’ (1998) 3 Widener Law Symposium Journal 279. Ercman, S. (ed.), European Environmental Law: Legal and Economic Appraisal (Bern: BubenbergVerlag, 1977).

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34 jorge e. viñuales Geigel Lope-Bello, N., Cuatro estudios de casos sobre protección ambiental: Inglaterra, Suecia, Francia, Estados Unidos (Caracas: Fondo Editorial Común, 1973). Global Legal Group, The International Comparative Legal Guide to Environment and Climate Change Law (2017) (updated yearly). O’Gorman, R., ‘Environmental Constitutionalism: A Comparative Study’ (2017) 6 Transnational Environmental Law 435. Gross, A. C. and N. E. Scott. ‘Comparative Environmental Legislation and Action’ (1980) 29 International and Comparative Law Quarterly 619. Hinteregger, M. (ed.), Environmental Liability and Ecological Damage in European Law (Cambridge: Cambridge University Press, 2008). Juergensmeyer, J. C., Comparative Materials on Land, Natural Resources and Environmental Law (Gainesville: University of Florida, 1973). Lutz, R. L., ‘An Essay on Harmonizing National Environmental Laws and Policies’ (1975) 1 Environmental Policy and Law 132. Lutz, R. L., ‘Harmonizing National Environmental Laws and Policies (Part II)’ (1976) 1 Environmental Policy and Law 162. Lutz, R. L., ‘The Laws of Environmental Management: A Comparative Study’ (1976) 24 American Journal of Comparative Law 447. May, J. R. and E. Daly, Global Environmental Constitutionalism (Cambridge: Cambridge University Press, 2015). McLoughlin, J. (ed.), The Law and Practice relating to Pollution Control in the Member States of the European Communities, vols. 1–9 (London: Graham & Trotman, 1976). Nowak, J. (ed.), Environmental Law: International and Comparative Aspects. A Symposium. Papers presented at the Conference on International Environmental Law held in London on September 1–3, 1975 (London: BIICL, 1976). Pring, G. and C. Pring, Greening Justice: Creating and Improving Environmental Courts and Tribunals (Washington D.C.: The Access Initiative, 2009). Robinson, N. A., ‘International Trends in Environmental Impact Assessment’ (1992) 19 Boston College Environmental Affairs Law Review 591. Robinson, N. A., ‘Comparative Environmental Law: Evaluating How Legal Systems Address “Sustainable Development” ’ (1997) 27 Environmental Policy and Law 338. Sand, P., Legal Systems for Environmental Protection: Japan, Sweden, United States (Rome: FAO, 1972). Scholtz, W. and J. Verschuuren (eds.), Regional Environmental Law: Transregional Comparative Lessons in Pursuit of Sustainable Development (Cheltenham: Edward Elgar, 2015). Schroth, P. W., ‘Comparative Environmental Law: A Progress Report’ (1976) 1 Harvard Environmental Law Review 603. Seerden, R., M. A. Heldweg, and K. R. Deketelaere, Public Environmental Law in the European Union and the United States: A Comparative Analysis (London: Kluwer, 2002). Tarlock, D. and P. Tarak, ‘Overview of Comparative Environmental Law’ (1983) 13 Denver Journal of International Law and Policy 85. Wilde, M., Civil Liability for Environmental Damage: A Comparative Analysis of Law and Policy in Europe and the United States (Alphen aan den Rijn: Kluwer, 2013). Winter, G. (ed), European Environmental Law: A Comparative Perspective (Aldershot: Dartmouth, 1996). Woodrow Wilson International Centre for Scholars (ed.), The Human Environment, Vol. II: Summary of National Reports submitted in preparation of the United Nations Conference on the Human Environment (Washington D.C., 1972). Zellner, S., Comparative Environmental and Natural Resources Law (Durham N.C.: Carolina Academic Press, 2013).

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chapter 2

Va lu e i n Compa r ati v e En v ironm en ta l L aw—3D Ca rtogr a ph y a n d A na ly tica l Descr iption Emma Lees

2.1 Introduction

36

2.2 Instrumentality

39

2 .2.1 Culture Within Law—Rule of Law 2.2.2 Model-thinking and Potential Assumptions 2.2.2.1 Transplantation in Toto 2.2.2.2 Failure in Design and Instrumental Outcomes 2.2.3 Avoiding the Pitfalls 2.2.3.1 Selective Detail to Allow for Analytical Comparison 2.2.3.2 Design as Distinct from Causation 2.2.3.3 Going Beyond Analytical Assumptions Regarding ‘Good’ Environmental Law 2.2.4 Conclusions on Instrumentality

2.3 Legal Culture

2.3.1 Mapping Context 2.3.1.1 Context in Individual Chapters 2.3.1.2 Culture as Part of Structure 2.3.2 The Attitude towards Compliance and Wider Cultural Approaches to ‘the Environment’ 2.3.3 Rights-based Thinking 2.3.4 Constitutionality 2.3.5 Conclusions on Legal Culture

2.4 Value in Model-thinking

40 42 42 43 45 45 46 47 47

48 48 48 49 50 51 53 54

55

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36 Emma Lees

2.1 Introduction There are two fundamental questions for legal scholars: first, what should we be doing to assist in solving real world problems, and in ensuring that the legal structures which emerge are conceptually and practically coherent and successful? Second, what should scholars be doing to ensure that as scholarship their analysis is methodologically sound, and reflective of the existing literature and lessons explored therein for what constitutes ‘good’ scholarship?1 Of course, the two are intimately related, and poor scholarship is unlikely to yield sound practical advice. However, there is also a risk that in focusing on the latter question, one loses sight of the first. Thus, whilst this chapter is primarily about the modes of scholarship that we utilize in this book, it is critical to note that this scholarship is pursued for a reason; to assist in finding long-term solutions to environmental problems in ways which do not sacrifice too many of the other values, or which even enhance those other values, that good legal systems hold dear. One of the goals of this book, as the previous chapter explains, has been to use comparative study as ‘model making’; to think of one purpose of comparative analysis as concerning questions of choice in design, implementation, and the wider context of rules, revealing the underlying cartography of environmental law across a diversity of parameters. Building this cartography is more than a descriptive enterprise: it is a critical part of the creation an environmental law corpus which is sensitive to context, robust, creative, and coherent. We compare not merely to compare as a matter of interest, but to compare with a view to allowing mutual dialogue across a commonality of language so that lessons may be learned. Many of the individual chapters present this cartography in a way which is not only sensitive to diversity of context, but in fact which sees that context as central to the operation of the rules in question. But contextuality and contingency can be taken too far, and if placed too firmly at the centre of legal scholarship can lead to analytical paralysis. In this sense, there is a balance to be struck. This chapter explains the balance that we have chosen to strike between recognizing the potential analytical pitfalls of thinking in terms of models, and the need so to do. This methodological aspect of the chapters presented in this book will not be without its critics. As Viñuales has explained in his review of different comparative methodologies in the previous chapter, there is no academic consensus as to ‘the best way’ to do comparative environmental study, but there does seem to be an emerging consensus that there is no ‘best 1 E. Fisher et al., ‘Maturity and Methodology: Starting a Debate about Environmental Law Scholarship’ (2009) 21 Journal of Environmental Law 213 represents the starting point for this conversation. For subsequent discussion see A. Johannsdottir, ‘Value of Proactive Methodological Approaches for Understanding Environmental Law’ (2014) 59 Scandinavian Studies in Law 243; G. Little, ‘Developing Environmental Law Scholarship: Going beyond the Legal Space’ (2016) 36 Legal Studies 48; R. Macrory, ‘Maturity and Methodology: A Personal Reflection’ (2009) 21 Journal of Environmental Law 251; J. McEldowney and S. McEldowney, ‘Science and Environmental Law: Collaboration across the Double Helix’ (2011) 13 Environmental Law Review 169; O. W. Pedersen, ‘Modest Pragmatic Lessons for a Diverse and Incoherent Environmental Law’ (2013) 33 Oxford Journal of Legal Studies 103; and O. W. Pedersen, ‘The Limits of Interdisciplinarity and the Practice of Environmental Law Scholarship’ (2014) 26 Journal of Environmental Law 423.

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Value in Comparative Environmental Law 37 way’ to do environmental law. As our scholarship becomes more mature, we realize that ‘environmental law’ is not a single body of rules, relatable to a single, monolithic goal of environmental protection, but, like all law, is an ever-changing landscape of rules and practices, shaped and determined by context and culture. This chapter seeks to contribute to the discussion of how we study this landscape by presenting the importance of model thinking, whilst exploring two of the challenges raised by our methodology, and by thus answering (some of) the questions that our methodology may raise. Before exploring this in detail, however, it is important here to distinguish between the methodology employed by us as editors of this book, and the various methodologies employed across the different chapters. Here, I am seeking not to explain why particular authors have selected the methodologies which they have in reviewing the questions within their purview, but rather why we, in framing the research project leading to this book, have chosen to take the approach we have in the structure of the comparative analysis considered. What do we hope to gain by mapping environmental law in a comparative analysis? In taking this approach, I am directly addressing what Viñuales has referred to in the previous chapter as the first of two primary goals of this work, that is, to identify, map, and organize the building blocks of environmental law. This goal, as explained above and in the previous chapter, is a cartographical one, but the emergent map is unusual: it does not merely describe the lay of the land. Rather, through its description of the salient features of environmental law it draws parallels across that landscape, and provides a coherent and single language by which we can describe these features. The description is, as a result, inherently analytical, as the process of simplification to describe is itself a consciously analytical act. Furthermore, our approach does not see environmental law as an island, but rather as embedded within, parasitic upon, and in its turn, providing a catalyst for change, for other fields within a legal system. We therefore attempt to map not only the e nvironmental law rules, but also their relationship with others. The results and overall picture derived from this map are explained in the previous chapter. Here, my question is this: why is an attempt to provide a cartography of environmental law, which focuses on models—on problems, systems, and interactions—rather than on precise detail, useful, necessary, and robust in the face of the challenges faced by all those undertaking environmental law scholarship? I refer to this cartographical approach as ‘model-thinking’; being a mode of thinking which seeks to zoom out from detail to see bigger pictures, without suggesting that detail is unimportant, and to use these bigger pictures as a mode for comparison across jurisdictions and as a compass in steering through the detail. Why do we consider ‘model-thinking’ to be such an important mode of legal analysis in the context of national environmental law? Certainly, thinking of the goal of comparative study in this way produces challenges, particularly in respect of the problem of ‘toolbox thinking’.2 As this chapter explains, however, whilst toolbox thinking may produce poor scholarship, it need not do so and our cartographical approach avoids such pitfalls. The toolbox approach to environmental protection regulation—which sees the law as a toolkit, allowing states to design rules with a particular goal in mind, selecting whatever tool seems appropriate—has been heavily 2 See e.g. E. Fisher, ‘Unpacking the Toolbox: Or Why the Public/Private Divide is Important in EC Environmental Law’ (FSU College of Law, Public Law Working Paper No. 35, 2001) available at: http:// ssrn.com/abstract=283295 or http://dx.doi.org/10.2139/ssrn.283295.

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38 Emma Lees criticized. Such criticisms come in many forms: the assumption of a single goal against which the toolbox can be measured for its effectiveness is illusory; the idea that we can just reach our hands into the toolbox and pluck out a ‘better designed’ rule underestimates complexity; and a more general rebuttal of toolbox thinking is formulated by Fisher. [E]nvironmental law should largely be understood, not as a subject about functional design, but rather as one concerned with administrative constitutionalism. That is it is about the constituting and limiting the power of administrative institutions when the legitimacy of those bodies is constantly being contested. The central question that drives the subject is thus not about effectiveness or efficiency but rather about balancing the ability of institutions to address problems with questions of institutional legitimacy.3

Thus, Fisher argues that toolbox thinking fails to recognize that law, as a social institution, is as much about power as it is about goals. However, this is not inevitable, as we shall see. It is not an inherent feature of model-thinking that those models fail to recognize that the social structures which they create produce allocations of power and shifts of entitlements between individuals and the state and different organs within the state. Indeed, modelthinking could be structured around the power-influences which particular types of regulatory systems create. The model would be a model describing power, not goals, but it could still be a toolbox in a broad sense. Bad toolbox-based thinking may indeed focus only on goals, but such is not necessary. The instrumental approach of toolbox thinking may also fail to appreciate values inherent in law, but, again, there is no need for it to do so, and as explained below, our approach seeks to put these values at the centre of our cartographical analysis by exploring the relationships between the environmental legal structures, such inherent legal values, and the forces that shape both. Furthermore, such instrumentalist thinking may contribute to, and very often overlaps with, a failure to appreciate the importance of the legal culture within which the particular provision is designed to operate. Again, as we shall see, this is not inherent to such an approach. However, and more importantly, it is also argued here that sensitivity to legal culture cannot be the be-all and end-all of good environmental law scholarship and so whilst appreciation of legal culture is essential, capitulation in the face of cultural difference is unwarranted. This means that the cartographical approach we explore may encounter two problems. Problem one: focusing on design/descriptive analysis of practice in a state may seem to treat law only as a tool, and falls into the trap of ignoring inherent legal values. The analysis below explains how we avoid this trap, and where we see such inherent values as sitting within the environmental law cartography. Problem two: seeing design/practice as translatable into other legal contexts, or at least comparable with other legal contexts, may fall into the trap of ignoring legal culture. I consider below again how we avoid this trap, and demonstrate that proper analysis of legal design and practice integrates an understanding of legal context so that any attempt to translate into a different legal system is already embedded with an appreciation of how legal culture is shaping the operation of the relevant rules within their context. 3 Ibid.

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Value in Comparative Environmental Law 39 Thus, in summary, this chapter explains how model-thinking sits alongside sensitive consideration of the features unique both to law as an instrument of social control, and of each individual legal system. It does so by exploring, first, the challenge raised to move beyond an instrumental approach to environmental law which ignores the role of law as a social institution which creates and shifts power, and which, as a result, is controlled by its own inherent values; and second, by explaining the importance of legal culture and context. The final section draws together conclusions as to why our methodological approach brings value in the face of such challenges, to provide a cartography which has not before been attempted on such a scale. The scholarly challenges, on such an analysis, then become a cautionary tale about what the cartography we create here actually reveals and what we claim it reveals. They do not prevent model-thinking being useful, and indeed, critical, for policy-makers and others seeking to move environmental law forward.

2.2 Instrumentality Since the early 2000s, a scholarly Zeitgeist has emerged which emphasizes that any attempt to see law as being a more or less sharp knife is a misrepresentation of the reality of how legal systems do and, more importantly, should, operate. Rather, in each legal system, the legal actors themselves will have values, rules, and processes which are inherent to the legal system and which cannot, in that sense, be designed out where they are seem as ‘obstructive’ to solving a particular environmental problem. It is clear from this simple statement of the anti-instrumental criticism that it is strongly related to legal culture. Indeed, it could be said that instrumentalism in legal analysis is merely an approach which ignores legal culture. However, as we shall see, focus on culture brings with it two separate considerations: (a) an acknowledgement that law encompasses culture, constitutionalism, power-allocation, and the like; and (b) that legal culture varies across and within jurisdictions. ‘Pure’ instrumentalism in that sense ignores (a) when carried out in its most simplistic form, but in reality, very little analysis does not acknowledge to some extent the importance of culture and constitutionalism. The real question is how far such an acknowledgement should becoming the driving force behind the scholarly approach, and whether an exploration of design can ever be successful whilst also recognizing that law encounters, develops, and is made up partly from culture. To explore this further, and to provide an answer for how model-thinking responds to the value and culture in law, it is crucial to understand the different claims that make up an anti-instrumental approach. The first claim is that legal systems have and encompass culture, and are intimately concerned with allocation of power and values, and that such is inevitable given that the legal system is made not only of rules, but also of practices, and processes. Law is, in this sense, political and cultural. To reject instrumentalism we do not need to assume that legal culture varies, but merely that law cannot be used as a tool as though it does not contribute its own ‘agency’ to a decision-making process. The second claim is that the existence of legal culture prevents an instrumental use of law both p ractically, and conceptually.

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40 Emma Lees

2.2.1 Culture Within Law—Rule of Law To analyse the first idea—that legal systems inevitably have their own culture—we can think of one cultural contribution of a legal system itself, that is, that of rule of law.4 However well or badly a legal system in any particular jurisdiction functions, and whatever the constitutional and political goals of any particular system, those actors within the system, if acting as proper representatives of the law, will seek, in line with the values native to that system, to uphold the rule of law. This is not to say that all actors within the legal system will in fact seek to uphold rule of law values, but that the demands of rule of law state that they should so seek. Where does an acknowledgement of this take us? It shows that legal actors will, when making decisions and applying rules, add something to the texture of those rules. To this extent, the approaches of legal actors can be seen as ‘seasoning’. The legal system takes the raw ingredients of rules, and then ensures they operate in a satisfactory fashion by integrating with those raw ingredients some ingredients of their own, which do not fundamentally change the rules, but without which the rules would not operate in a way consistent with the internal values of a legal system. Such an image gives little normative weight to the rule of law values, and many, including myself, would suggest that rule of law values add significantly more than this.5 However, even accepting this limited metaphor, we can say that the legal system is not ‘neutral’ in the way that rules are applied and construed. Elsewhere, Shepherd and myself have referred to this inherent value of rule of law as an ‘ideology’ of the legal system, and we explain that legal ideology is, in this sense, a subset of legal culture, albeit that the interaction between ideology and culture is more nuanced than the word ‘subset’ would suggest.6 Rule of law is not, of course, the only value inherent to legal systems. We could also refer in the same breath to constitutional values, which again will sit variously in conflict with, and in support of, environmental protection through law as an instrumental goal; or to human rights; or to a deep commitment to equality, etc. However, acknowledgement of this role for ideology, or of the existence of values pursued by law itself—of which we could fairly uncontroversially list certainty, equality before the law, and due process7—means that any instrumental approach seeking the seemingly uncontroversial goal of environmental protection, will run up against the internal values of the law which seek not to ensure environmental protection at all costs, but to uphold, in its most basic terms, legality. In this sense, we can see legal systems grappling with problems of retroactivity in environmental control—a problem keenly felt across all those legal regimes that have specific rules dealing within historical pollution.8

4 T. Bingham, The Rule of Law (Harmondsworth: Allen Lane, 2010); P. Craig, ‘Formal and Substantive Conceptions of the Rule of Law’ [1997] Public Law 467; J. Raz, ‘The Rule of Law and Its Virtue’ in Raz, The Authority of Law (Oxford: Clarendon Press, 1979); and B. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004). 5 E. Lees, Interpreting Environmental Offences (Oxford: Hart Publishing, 2015). 6 E. Lees and E. Shepherd, ‘Morphological Analysis of Legal Ideology: Locating Interpretive Divergence’ (2018) 10 Journal of Property, Planning and Environmental Law 5. 7 See the discussion in B. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004). 8 See chapter 28.

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Value in Comparative Environmental Law 41 A recent and highly pertinent example of how the legal system as a whole and the values it embodies grapple with the interaction between environmental protection goals, and the problems which such may encounter in terms of the values embodied in rule of law is to be found in the recent UK Supreme Court decision in Mott v Environment Agency.9 In this case, the Court was asked to assess whether the change to a fishing catch limit in relation to an environmental permit constituted an unlawful deprivation of possessions under Article 1 of the first Protocol to the European Convention of Human Rights (ECHR). This potentially narrow question can be generalized, so that the significance of the Court’s comments can be appreciated. Essentially, the court is asking whether a person with an environmental permit has a right for the condition of the operation of that permit not to be changed (disproportionality) without being given compensation. This question is at the heart of the operation of all environmental licensing systems as all, to a greater or lesser extent, are premised on the idea that the licence conditions may change as the environmental situation on the ground morphs. Lord Carnwath, giving judgment for the Court, confirmed that whilst it is ‘right to emphasise the special importance to be attached to the protection of the environment . . . this does not detract from the need to draw a “fair balance” ’.10 Based on this assessment, the Court’s conclusion that Mr Mott was entitled to some compensation11 shows how subtle the Court’s consideration regarding fair balance is, and how critical the wider legal culture will be in shaping the practical operation of the legal rule. This is merely one example of how legal culture is relevant, and indeed, any description of how the environmental licensing system in the United Kingdom operates which did not include some discussion of Mott would be inaccurate, but this case also demonstrates a more subtle point which is that the operation of the environmental law rules here depend upon the court’s assessment of ‘fair balance’, and ‘fair balance’ is not a test which can be defined according to technical rules. Rather, it is a subjective assessment, the court’s response to which is shaped by far more than the goal of environmental protection or indeed of the goals of the human rights legislation. This case is evidence, therefore, for the argument that law encompasses its own values and that these will shape the operation of environmental law rules. Rule of law is of course not the only element of a legal system which may clash with instrumental use of law—it is but one potential ideology, and is, itself, formed of essentially contested concepts making ‘rule of law’ merely an ideal without the context of the legal system within which it operates as interpreted by its actors12 (and for more on this, see section 2.3.1). To this extent stating that legal systems contain values inherent and internal to the system which will come into conflict with law as design is the same thing as saying that all legal systems have a more or less individual legal culture (as opposed to being merely different by the presence of different legal rules). However, some legal values may share common features across such cultures and understanding how values as broadly understood as rule of law interact within environmental law is important, and not made any the less so by the fact that rule of law is not understood to mean exactly the same thing in all contexts. We are charting and exploring those common features, whilst highlighting where that commonality may not produce identical results. 9 Mott v Environment Agency [2018] UKSC 10. 10 Ibid., at [33]. 11 Ibid., at [37]. 12 J. Waldron, ‘Is the Rule of Law an Essentially Contested Concept (in Florida)’ (2002) 21 Law and Philosophy 137.

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42 Emma Lees Furthermore, it should be emphasized that whilst some values may be inherent to the social construct of law (or at least, if taking a Finnisian approach, inherent to what we might call central cases of social constructs of law13), others may depend upon the way in which a particular state understands its own power structures. Thus, a value inherent to the English legal system is the sovereignty of Parliament (notwithstanding controversies as to precisely what this means and how far it extends).14 This is not an inherent value of all legal systems, but it is a value inherent to the English legal system which has a huge practical influence on how the court handles its decision-making.15 On the other hand, we may cite the legal system of the modern German state, which puts respect for its constitution and constitutionalism more generally as its central principle, with the result being the dominant power of the German Constitutional Court. This central reliance on constitutionalism is explicitly regarded as cultural in this sense.16 These are not precisely operational rules, and although they may be actionable in some cases, they also act as interpretive guides, and form a critical part of the legal culture of the system. Finally, these different values may even be organized in hierarchical terms: for example, non-retroactivity may trump moral values underpinning new crimes in some cases but may in turn be superseded by the critical importance of criminal liability.17 The hierarchy will therefore vary not only from legal system to legal system, but also depending upon the particular question being asked. Culture and values are therefore central to the operation of law.

2.2.2 Model-thinking and Potential Assumptions 2.2.2.1 Transplantation in Toto Given these considerations, why is focus on model-thinking potentially problematic? It is problematic because it may make three assumptions. First, a design or ‘model focused’ approach may assume that a model utilized in a particular jurisdiction is transplantable in toto to another system, hence, the idea of ‘models’. Of course, no model can be transplanted within consideration of the context into which it is being placed, however, and indeed in environmental law there are a number of successful ‘global’ legal techniques. Thus, 13 J. Finnis, Natural Law and Natural Rights (Oxford: Oxford University Press, 2011). 14 See amongst much else, T. R. S. Allan, The Sovereignty of Law: Freedom: Constitution and Common Law (Oxford: Oxford University Press, 2013); A.V. Dicey, Introduction to the Study of the Law of the Constitution (Basingstoke: Macmillan, 1959); M. Elliott, The Constitutional Foundations of Judicial Review (Oxford: Hart Publishing, 2001); M. Gordon, ‘The Conceptual Foundations of Parliamentary Sovereignty: Reconsidering Jennings and Wade’ [2009] Public Law 519; M. Gordon, Parliamentary Sovereignty in the UK Constitution: Process, Politics and Democracy (Oxford: Hart Publishing, 2015); J. Jowell, ‘Parliamentary Sovereignty Under the New Constitutional Hypothesis’ [2006] Public Law 562; R. Masterman and S. Wheatle, ‘Unpacking Separation of Powers: Judicial Independence, Sovereignty and Conceptual Flexibility in the UK Constitution’ [2017] Public Law 469; and H. W. R. Wade, ‘The Legal Basis of Sovereignty’ [1955] Cambridge Law Journal 172. 15 For discussion of judicial review in the specific context of environmental regulation, see R. Moules, Environmental Judicial Review (Oxford: Hart Publishing, 2011). 16 H. Heilbronner, Traditions and Transformations: The Rise of German Constitutionalism ( Oxford: Oxford University Press, 2015). See also W. Heun, The Constitution of Germany: A Contextual Analysis (Oxford: Hart Publishing, 2010). 17 See the discussion in chapter 49.

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Value in Comparative Environmental Law 43 e nvironmental impact assessment (EIA) as a technique has been transplanted from the National Environmental Policy Act (NEPA) across the world,18 whilst of course flexing to its particular jurisdictional context. Some cultural features may make reception or resistance more likely. In this sense, legal transplants are like a piece of advice. The person taking the advice does much more than simply following an algorithm. S/he transforms or ‘embeds’ the general dictum to her/his own specific circumstances (personal and situational). Furthermore, even more concrete evidence for the possibility of nuanced legal transplantation in environmental law can be found in the very techniques employed by the EU in implementing its environmental goals in the form of Directives, which by definition require translation into the national legal system of the Member State, whilst establishing the general framework of the relevant rules. The enormous influence which the EU has had in shaping environmental law and in many of its world-leading initiatives in this respect, is testament to the possibility of, as well as the potential challenges encountered in, the process of developing, broad brush legal models which can then be used in different legal contexts as long as allowances are made for such a context. To put this objection to model-thinking at its most simple, the essence of the objection is this: if it is not possible to translate the outcomes of one model into a different legal system, then what is the point in looking at the models present in any system or group of systems, since there is nothing to be learned from such an exercise except as can apply within that system. Indeed, most if not all of the authors contributing to this book clearly accept such a proposition to a certain extent. This expression of this objection to model-thinking, based on antiinstrumentalism, is a straw-dog however. It is so obviously an over-simplification that it is not difficult to defend oneself against it. A more sophisticated expression of the objection is that model-thinking by necessity simplifies the operation of law in a particular state, and in doing so, takes out some of the internal practices and values, expressed or implied, of that state which are (at least) the ‘seasoning’ affecting the operation of the rules. Removing some of these from the picture, as is necessary if we seek to ‘zoom out’ to map environmental law, may make the map inaccurate but no map can ever be a 1:1 replication—and if it were to be, it would be useless. Instead, we have made conscious choices about what is removed, making this process of description itself an analytical one.

2.2.2.2 Failure in Design and Instrumental Outcomes Second, focus on design may be criticized because it could have a tendency to assume that the reason why a measure may fail to achieve its environmental objectives is because it has been poorly designed. Thus, to achieve the objective, a new, reformed measure is needed, and sources for inspiration for this measure can be found in the experience of other models utilized in other jurisdictions. It thus assumes that model design is a predictor of outcome. Such an assumption is potentially dangerous, but it also not entirely false. Design, of course, influences outcome, regardless of context, and if focus on culture and context hides this critical fact, then the progress of environmental law is equally hindered by this as by an approach which trammels over legal culture in an insensitive fashion. Finally, focus on the design of a measure may assume that the ‘good’ or bad of a rule is determined by its instrumental outcome—does the measure actually achieve environmental protection?—but again 18 See the discussion in chapter 39.

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44 Emma Lees such an assumption is not necessary. It is perfectly valid to ask whether a measure is well-designed to promote certainty in application, consistency, or social and environmental justice, quite apart from its effects in terms of environmental protection. Avoiding these pitfalls is not a matter of avoiding discussion of design, it is a matter of thoughtful discussion of design which looks beyond mere instrumental effectiveness. Anti-instrumentalism would challenge model-thinking because there is a suggestion in the zoomed-out approach that the successes and failures of a regulatory regime (however we define failure and success) is a function of design and design only (since, by zooming out, runs the argument, all that can remain is the fundamental elements of the structure of a rule, not the nuance of its application in context—an argument which I refute below). Why else would it be useful to consider broad-brush analysis of systems if that ‘structural’ analysis told us only, ‘this is how country x does it’? There must, the criticism runs, be an assumption that knowing that country x has utilized a particular regulatory approach is useful and analytically valuable because that knowledge helps us to understand the operation of the rules in that country, and therefore, that knowledge helps us to understand why those rules have or have not ‘worked’. This, again, is an oversimplified expression of the criticism. It is better expressed by Fisher who states that: ‘like all paradigms such a description will have a powerful impact, on future legal and policy developments and as such does have a prescriptive element’.19 This is undoubtedly true—but it is of course not possible to explore legal structures without description and so the criticism warrants caution, but it does not justify (nor is it intended to justify) abandonment of description as part of analysis of law. On this view, the model-thinking paradigm as a process of description has an impact on the analytical frame by which the models are addressed, and there is a risk that this a nalytical frame implicitly treats instrumental goals as the foundation of that analysis in a hidden/ unconsidered way. Thus the risk of model-thinking is that as a mode of description, it may fail to make explicit its analytical framework and as such risks blindly accepting an instrumental approach to analysis of design. In this work, we do not avoid such articulations of our analytical framework: rather, we seek to understand how different states have employed models for tackling particular environmental problems, for integrating environmental law into its wider legal context, and for structuring the governance and power structures in place in such a way as to, in part, achieve environmental protection. From this description we build a description which, by the structure of our book, gives a 360° viewpoint on the model thus described. Third, and following from that second point, model-thinking risks analysing the ‘good’ and ‘bad’ of environmental law as being questions only of environmental protection. Seeing the instrumental goal of environmental law as only being environmental protection is actually not an inevitable aspect of an instrumental approach: it would be equally possibly to assess whether the law achieves more than one goal, including, for example, protection of human rights, or even economic competitiveness through the reorientation of the industrial matrix by green industrial policy. Such an approach to analysis is equally instrumental in its focus,

19 E. Fisher, ‘Unpacking the Toolbox: Or Why the Public/Private Divide Is Important in EC Environmental Law’ in J.-B. Auby and M. Freedland (eds.), The Public Law/Private Law Divide: une entente assez cordiale (Paris: L.G.D.J. Diffuseur, 2004), 241.

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Value in Comparative Environmental Law 45 but the goals examined are not narrow.20 This final criticism of model-thinking looks not at the risk of an analytical framework which is goal-focused, but rather where the goals that make up such a framework are themselves inappropriately narrow.

2.2.3 Avoiding the Pitfalls 2.2.3.1 Selective Detail to Allow for Analytical Comparison How have we sought, in our editorial approach, to avoid these pitfalls whilst still ensuring the ‘real world’ effects explained in the introductory paragraph? First, we have very e xplicitly emphasized that our cartography does not contain all the detail which would be necessary to make a comprehensive analysis of environmental law in a particular state, but equally, we seek to describe and analyse those features of a legal system which although general, have significant impacts upon the operation of environmental law rules. In this sense, we have sought a ‘three-dimensional’ but zoomed-out cartography, rather than a 1:1 replication. We have, therefore, requested the country study authors to explain not only how the state regulates water, air, soil pollution, and the like, but also to consider the bigger questions within that country’s legal system: how is power devolved; what is the relationship between administrative decisions-makers and courts; and how do constitutional values shape the techniques of environmental law? These questions are designed to capture some of the internal legal values, the constitutional questions, and the power allocation choices which a simple description of ‘environmental law’ alone might overlook. We have therefore simplified as is necessary for our cartographical task, but we have not simplified in a way which runs roughshod over the context within which the specifically e nvironmental rules operate. We have also, very explicitly, chosen to shape the description of the rules in that country in a way which matches the descriptive approach in the other country chapters. This may not be, and very likely, would not be, the same structure which would be used to describe the law in that state absent the need for comparison and nor, for many authors, would it represent the best analytical approach for each country on its own. However, in looking at the chapters as being for comparison, we have structured the description, and thus framed the analysis, deliberately to capture some detail and information, whilst accepting that this will sacrifice other detail. Thus, the cartographical approach is deliberately one which does not capture all the subtle and hidden complexities present in a legal system. We do not, therefore, make a claim to providing the sort of description which would allow for a full appreciation of the contribution which legal values within a state make to the operation of the rules. In some places such will be present—and the UK chapter, for example, highlights the subtle influence of the dynamics of the United Kingdom/EU relationship—but it was not something which we, as editors, asked of our authors. Rather, we asked them to consider their own country through a pre-set framework for description in an effort to show similarity and difference which may otherwise be hidden as a result of the operation of inherent legal practice and values. Far from ignoring legal context, therefore, we sought, in the country studies, to explore that diverging context in a homogenous way. 20 See the discussion in E. Lees, Interpreting Environmental Offences (Oxford: Hart Publishing, 2015), chapters 6 and 7 for analysis of the results if an inappropriately narrow approach to understanding the goals of environmental regulation.

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46 Emma Lees In doing so, of course, we have made our own choices. Such choices may not be universally accepted, but we are of the view that the structure we have used best allows us to chart not only the substance of environmental law within a state—its structures and specific approaches to particular problems—but also the most important features of the legal context within which those operate. In this way, we hope to avoid falling into the potential trap of simplification producing inaccuracy because it fails to account for legal context.

2.2.3.2 Design as Distinct from Causation Second, there is the potential problem of focus on design leading to an instrumental mode of analysis, deliberately or subconsciously. We have sought to avoid this problem by not focusing on design as causation. We do not argue that the only relevant factor for the success of failure of rules is their design, and nor in our analysis do we focus on design if design is understand as a technocratic description of the precise wording of rules. Rather, as noted above, we explain broad structures as part of the overall picture. Many of the chapters here, as we hoped they would, demonstrate that design in this narrow sense is actually a small aspect of the picture in terms of the operation of rules. For example, in chapter 30 on devolution, Reese explores the effect that power structures have on the operation of environmental law rules, and how states have consciously or through historical accident developed responsibility for environmental protection through the different layers of such power. Whilst not a question of design in the narrow sense, this chapter explores how to intermesh existing power structures with environmental rules in more or less successful ways. In chapter 40 too on environmental taxation, Milne emphasizes that environmental taxation is often designed so as to ensure government revenue, not as an environmental protection measure per se, and so in considering broad structures, this perspective is critical to understanding in what ‘successful’ environmental taxation consists. Thus, states are interested in legal design for a range of reasons that have little to do with environmental performance, for example, how to introduce a regulatory system in the absence of support in some elements of the governing power structures, or how to enshrine a policy into law knowing that it may be inconsistent with international agreements, or how to phase in a cap-and-trade system in a politically acceptable manner. Furthermore, the criticism that models, by looking at design as a mode of description, do not properly analyse the context of surrounding rules, is itself a criticism which cannot really hold up to scrutiny since it depends on how each author understands questions of ‘design’. On one level, design of legal rules is everything, if by design is meant the entire system as it is supposed to operate, including any built-in assumptions about enforcement and implementation. To put this another way, if we assume that an environmental law rule is designed to be enforced by the Environmental Protection Agency (EPA) in any particular state, and that design is made against the background of knowledge that the EPA in that country is under-resourced, and staffed by a combination of scientific experts and government officials, then we could argue that a knowledge of how the EPA operates is part of the deliberate ‘design’ of that set of rules. On the other hand, we could limit our understanding of models of design as being a question of how the rules appear to operate on paper, without reference to the practical constraints on how those rules will actually be operationalized. In deciding to analyse the design of a rule, each author will make their own choice as to how

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Value in Comparative Environmental Law 47 far questions of ‘design’ extend, and in making this choice they will be informed by their own analytical approach to environmental law in general. Therefore, even if model-thinking demanded focus on design only—which it does not—focus on design only is only problematic if the understanding of what design means is drawn inappropriately narrow, or fails to capture the fact that rules as designed are also designed to operate within a particular legal culture and context.

2.2.3.3 Going Beyond Analytical Assumptions Regarding ‘Good’ Environmental Law Finally, there is the potential criticism that model-thinking, by ostensibly providing a neutral cartographical description, will have analytical impacts through that descriptive approach, and there is a risk that this analytical impact will be to examine environmental law from the perspective of the goal of environmental protection. Whilst we acknowledge this is a risk, it is, as Viñuales has highlighted, part of the goal of our book to openly go beyond such an analytical assumption. Thus, we consider in Part IV how environmental law integrates with other fundamental structures within different legal systems, and the a nalytical approach taken in that Part certainly does not assume that the successes and failures of such integration should be judged from an environmental protection standpoint alone. Such a narrow focus is a potential risk for a comparative environmental law book, but our structural approach we have minimized that risk by requiring that authors look beyond the bounds of environmental law.

2.2.4 Conclusions on Instrumentality To conclude in respect of instrumentality, therefore, our methodological approach faced three challenges. First, by zooming out to ‘filter’ some detail out of description and analysis of environmental law in a particular state or in respect of a particular problem, we risked simplifying to the point where a false picture is given both descriptively, and normatively, about how environmental law works and should work. We address this challenge by consciously including the surrounding legal context as part of our zoomed-out description, recognizing that constitutional value, power allocation, ideology within law, and as we shall see, varying legal culture, all form an important part of how environmental law ‘works’. Second, we risked inappropriate focus on design, suggesting that the operation of e nvironmental law is primarily a function of design. We meet this challenge by recognizing that design (defined narrowly) is not the only important element to form part of our model. Finally, modelthinking in terms of creating a cartography of environmental law risks, through the subtle effects which a mode of description may have on an approach to a nalysis, prioritizing the achievement of environmental protection as the only or main benchmark against which environmental law should be judged. We avoid this pitfall by examining the place of environmental law within its wider legal context, considering not only questions such as the interaction between environmental and property law, and environmental law and human rights, but more generally, how environmental law can and should be integrated with public

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48 Emma Lees and private law in broader terms. This allows us to analyse environmental law from a range of perspectives, and prevents an inappropriately narrow analytical stance.

2.3 Legal Culture 2.3.1 Mapping Context Thus, our cartographical approach adds value notwithstanding the criticisms which can be developed from a rejection of an instrumental approach to describing and analysing environmental law. We recognize that law is not only rules as designed, but a web of social practice, normative power allocation, and constitutionalism, that is shaped in part by the legal culture unique to each legal system, and even to subsets of such systems. In this book, therefore, we not only have to account for context, if we wish to truly ‘map’ the e nvironmental law landscape, but also to recognize that such context varies from jurisdiction to jurisdiction. One aspect of that variation is the culture of the legal system. Above, I highlighted that it is possible to see ideology within a legal system as part of and overlapping with legal culture, but legal culture encompasses more than the explicit and implicit values embodied by that system. Indeed, its content ranges from the mundane—the flexibility of court ushers in allocating court time ‘on the day’ for example—to the most fundamental, unspoken norms of the legal system.21 Furthermore, as Pedersen highlights, different aspects of the culture within a system will mutually influence and shape the overall picture, so that ‘the meaning of a constitutional provision is necessarily defined by the domestic constitutional and legal cultures’,22 but it is also possible to see the meaning of that provision as itself part of the relevant legal culture. In this way, it is not possible to disentangle rule, from ideology, from culture. Rather, the social practice of law encompasses within it behaviours and understandings, all of which can be described as culture.

2.3.1.1 Context in Individual Chapters In a number of chapters of this book, the importance of recognizing legal culture is emphasized, especially when considering the operation of transversal regulatory approaches, such as environmental principles. Indeed, as Scotford’s analysis of the operation of these principles in Europe and Australia shows, it is not possible to understand how such rules work without a full appreciation of legal culture.23 As Scotford explains in chapter 29: Whilst environmental principles can act as important catalysts for legal development, there is a need for methodological care in analysing these legal phenomena across jurisdictions. Similarly named principles in different legal contexts are not equivalent legal ideas and a keen

21 D. Nelken, ‘Using the Concept of Legal Culture’ (2004) 29 Australian Journal of Legal Philosophy 26. 22 O. W. Pedersen, chapter 47, p 1080. 23 E. Scotford, Environmental Principles and the Evolution of Environmental Law (Oxford: Hart Publishing, 2017).

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Value in Comparative Environmental Law 49 awareness of legal culture is required in thinking about how environmental principles are penetrating, emerging from and informing legal orders.24

Similarly, she argues later that: ‘[the environmental principles] must operate through contingent and localized legal architectures in order to have legal roles, and even then their wider policy impacts depend on a wide range of socio-political and scientific factors’.25 Fisher too in chapter 33 refers to the collective failure to take legal context and culture seriously, and how this leads to both oversimplification and fundamental misunderstandings as to how science is and should be handled in a particular legal context. It may be thought as unusual, therefore, for this book to so explicitly highlight the importance of models thinking. However, we do not deny that, ‘a rule or regime cannot be examined only as a black-letter text; rather it must be scrutinised through a culture-specific lens, taking legal culture into consideration’.26 Rather, we suggest that understanding the different potentially relevant aspects of legal culture, along with an understanding of models, can contribute to a deeper understanding of the cartography of environmental law.

2.3.1.2 Culture as Part of Structure To explain how this concept interacts with the methodology employed by us as editors of this book, it is important first to explore in more detail what legal culture actually is and how it may be particularly influential in shaping environmental law practice. As explained above, legal culture covers a range of features of any particular legal system, and indeed, will vary according to the precise location of a dispute within that legal system. It can range from the seemingly mundane, although practically very important issues, surrounding the ways in which court time is handled, the dress, attitude and process in those hearings, to the really fundamental questions as to the views that the courts themselves hold as to their own role within the wider question of governance within the state. In this sense, legal culture is a subset of national, regional, and international culture, but it also contains within it overlapping subsets, such as that of legal ideology explained above, as well as attitudes towards constitutionalism and administrative power. Furthermore, the cultural significance of practices within a country may arise from without the legal system per se. Thus as Craik highlights in chapter 39, ‘[t]he degree and effectiveness of participation is influenced by the broader culture of openness with which administrative decisions are made in the country in question’.27 A similar point is emphasized by Morrow in chapter 43 in her discussion of environmental information more generally: [W]hile the environmental informational requirements that form the focus of this chapter can (and do) have novel and distinctive elements, they are also oftentimes grounded in long established broader legal cultures and traditions, which, while they may share certain core characteristics, can exhibit considerable variation in application across states.28

24 E. Scotford, chapter 29, p 653. 25 E. Scotford, chapter 29, p 677. 26 S. Bogojevic, chapter 41, p 939. 27 N. Craik, chapter 39, p 890. This openness may or may not be an aspect of the relevant legal culture. 28 K. Morrow, chapter 43, p 973.

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50 Emma Lees Bogojevic too highlights that the relevance of culture is beyond merely changing the way in which rules actually work, but also how they are perceived. She argues that: Market mechanisms take a myriad of different legal forms depending on the understanding of the environmental problem at issue and the role of markets entrusted to respond to these. Inevitably such perceptions are determined by legal culture.29

From this discussion, it is clear that many of the authors contributing to this edited collection are not only aware of legal culture, but see it is as central to their analysis. We too have shaped our methodological approach in recognition of this. First, some of the most important aspects of legal culture for environmental regulation, are: the attitude to compliance of those subject to the law; the role of rights-based thinking within the system; the attitude of the courts to constitutionality; and the mechanics of the state’s legal apparatus. If we group the legal culture in a state around these ideas, then we can see how significant they would be in terms of implementing any particular ‘model’ or as explained in this book. So, to take an example, in the chapter concerning polluted sites (chapter 28), it was explained that there are essentially three design decisions: the trigger for state involvement in the form of the definition of contaminated; the liability rules in terms of who is required to pay for or carry out remediation; and the standard to which land must be remediated. Even if every state in the world took the identical decisions in respect of these design questions—that is, they employed the same ‘model’—the outcome would not be the same. Why? Because legal culture would be different, and the attitude to compliance, the view of property, and the attitude of the courts in terms of the rights and responsibilities which the constitution confers in respect of that property, as well as the ease and expense of enforcement, will all have an important influence on how the rules work. As highlighted above, it is possible to see acceptance of these cultural influences as being part of design, but it is not necessary to do so, and indeed, if we see design of legal rules as a conscious process, then the influence that legal culture will have on the rules cannot always be captured in an explicit and conscious way. Rather, its influence will be felt, if difficult to pin down. Let us explore these important aspects of legal culture, in order to show how this edited collection has sought to incorporate culture into our cartographical study.

2.3.2 The Attitude towards Compliance and Wider Cultural Approaches to ‘the Environment’ Attitude towards compliance is part of legal culture, just as it is part of the culture of the state. It is also something which operates without the legal system. Nevertheless, the significance for such attitudes in terms of behaviour change is obviously critical, but it can be difficult, if not impossible, to make rules which demand such behaviour change. It is recognition of such factors which has led us to include our chapters on environmental education. In our cartography, therefore, we seek to include not only analysis of how culture shapes law, but also how law can influence wider legal culture. The Tbilisi Declaration regarding environmental 29 S. Bogojevic, chapter 41, p 928.

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Value in Comparative Environmental Law 51 education, cited by Cutter-MacKenzie et al. in chapter 42 gives a good sense of this mutually reinforcing relationship: Environmental education . . . should prepare the individual for life though an understanding of the major problems of the contemporary world, and the provision of skills and attributes needed to play a productive role towards improving life and protecting the environment.30

However, in that chapter, the authors also highlight that making environmental education in this sense political, itself has outcomes for the way in which that education is carried out, and the culture and legal-cultural impact that such education will have. In including environmental education in this book, therefore, we demonstrate how legal culture is influenced by factors beyond law, but that approaching such issues from a legal, and political, perspective can itself be a problematic attitude when trying to change culture in this sense. Furthermore, the influence that politics and culture can have on how environmental law operates is seen clearly in Rodgers’ chapter on property. The fundamental differences between the United Kingdom and New Zealand, for example, considering their common legal heritage (and from a ‘land law’ perspective, very similar rules) are a product as much of their attitude to the environment and property (as part of their cultural heritage) as they are a product of the rules themselves. As Rodgers explains: Common law notions of private property rights and freedom of contract heavily condition land use rights, and are key to an understanding of their potential to either harm, or alternatively to promote the protection of, the natural environmental.31

It is this concept of ‘conditioning’ and of the way in which essentially similar structures in terms of legal rules can have such radically different outcomes in terms of how property rights are understood, which is so central to the environmental attitude, and thus so important in how legal culture shapes environmental protection. Far from ignoring such cultural influences, therefore, this book has sought to embrace them, not only for their explanatory power in terms of helping to explore why and how legal systems differ, but has also examined one aspect of the process of cultural change, education, to explore how legal and such change can and should interact.

2.3.3 Rights-based Thinking Linked to the discussion above is the significance of a ‘rights-based’ approach to the legal process in any country. By rights-based thinking, is meant the degree to which any legal system sees legal disputes as being disputes of rights. Taking such an approach is not necessarily pro-environmental protection, nor is it necessarily a hindrance to such. Rather, the consequence of this thinking will be to alter the way in which disputes are conceptualized and framed. To give an example, a state which conceptualizes environmental protection through the lenses of human rights to health, a right to a clean environment, or indeed 30 A. Cutter-MacKenzie et al, chapter 42, at 954.

31 C. Rodgers, chapter 31, at 717.

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52 Emma Lees through the lens of rights vesting in the environment itself, may operate on the understanding that such rights can only be limited either by reference to other rights, or according to the limits imposed on such rights in a constitutional document for example (see section 2.2.3.4).32 It is also significant in itself to think in terms of rights, rather than thinking in terms of rules. On the other hand, a rights-based approach which sees rights in terms of property, liberty of action, and the like, may struggle to conceptualize the duties commonly associated with protection of the environment.33 We can see this in Howarth’s discussion in chapter 48. This consideration of private law and its interaction with environmental regulation is, in part, an analysis of the ways in which rights can be integral to and obstructive in environmental protection. Thus, he argues: Private law can act as environmental law in three distinct ways. First, it can facilitate agreements that protect the environment. Second, it can grant rights to sue in respect of acts or activities that harm the environment. Thirdly, it can refuse to facilitate agreements that harm the environment.34

These different modalities of interaction between private law and the environment are not all dependent upon such a focus upon rights. As a result, which option of these a state priorities, or which option is practically most successful in any system, will be a function not only of the design of the rules, for example, but also of the centrality of rights within the wider legal context. An approach which focuses on rights, implicitly or explicitly, may also tend to be rather more restrictive in, for example, public interest litigation and litigation costs and seeing rights as central to the operation of the legal system would tend to prioritize those with a ‘special status’ in relation to a particular environmental media or who suffer particularly as a result of any particular environmental harm. The effects of such barriers to legal justice are considered in chapter 35, but it is important to note here that, as Kotzé and Daly also show, conceptualizing in terms of rights in this way does not ‘simplify the picture’. They demonstrate in chapter 46 quite how broad the scope of even human rights may be in relation to the environment: The term ‘environmental human rights’ is seen to include within its remit all those rights that are related to human-environment interests, including political rights (i.e. rights to life, equality and dignity); socio-economic rights (i.e. rights to access to water, sanitation and 32 See S. Bell et al., Environmental Law (Oxford: Oxford University Press, 2017), chapter 3. 33 It need not do so, however, see draft, E. Lees, ‘A Justification for Stewardship in the Theory of Group Obligations: Property in Anthropocene’, paper presented at ALPS, University of Michigan, Ann Arbor, United States, 2017 and forthcoming. For discussion of the relationship between property rights and environmental regulation, see C. Barrett and R. Grizzle, ‘A Holistic Approach to Sustainability Based on Pluralism Stewardship’ (1999) 21 Environmental Ethics 23; E. Barritt, ‘Conceptulising Stewardship in Environmental Law’ (2014) 26 Journal of Environmental Law 1; L. K. Caldwell, ‘Rights of Ownership or Rights of Use?—The Need for a New Conceptual Basis for Land Use Policy’ (1973–1974) 15 William and Mary Law Review 759; W. Lucy and C. Mitchell, ‘Replacing Private Property—The Case for Stewardship’ (1996) 55 Cambridge Law Journal 566; C. Rodgers, ‘Nature’s Place? Property Rights, Property Rules and Environmental Stewardship’ (2009) 68 Cambridge Law Journal 550; and J. Welchman, ‘The Virtues of Stewardship’ (1999) 21 Environmental Ethics 411. 34 D. Howarth, chapter 48, at 1096.

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Value in Comparative Environmental Law 53 housing); procedural rights (i.e. rights to access to information, participation, and access to administrative and judicial justice); most explicitly, the right to a healthy environment which, in most formulations, is protection for both present and future generations; and more recently, right of nature.35

There is therefore no sense in which a rights-based legal culture would necessarily produce a pro-property, pro-contract approach to environmental protection. Rather, the fact that rights play a prominent role in the style of legal discourse will simply alter ‘how law is done’ in a particular state. We have integrated this into our work by considering how rights shape environmental law from a number of perspectives, including those in private law and protected by constitutional and human rights.

2.3.4 Constitutionality It is however possible for the focus within a state not to be rights, per se, but rather the constitution. This can be very explicit. The United States, for example, demonstrates the importance of thinking in terms of constitutionality. There, the differences in interpretive approaches to the constitution lie at the heart of many legal disputes. The legal dispute does not happen on the plain of the wording of the constitution per se, but rather on the more fundamental question as to whether one reads the constitution as a living document which morphs according to modern society’s needs and priorities, or whether one reads it in an originalist way to give effect to the intention of its drafters. Which approach a judge takes to this question will have a profound effect on, for example, their attitude to environmental controls and liability on the basis of land use, and the takings clause in relation to the constitutional right to property.36 This will have a much more fundamental result in respect of how any polluted sites rules operate, than will the question as to whether the trigger as designed in the rules is a fixed baseline standard, or one based upon risk. However, the design decision made will also affect the ways in which constitutional thinking limits or shapes the operation of the rule, making the decision and the constitutional approach inextricably linked. This aspect of the US approach to environmental law is emphasized in this work in Salzman’s chapter,37 where he commences his discussion with analysis of the potentially difficulties caused by the Supreme Court decision in United States v Lopez,38 calling into question the ability of the federal government to regulate to protect the environment under the Commerce Clause. Constitutional approaches will not, however, only play a formal and constraining in the development of environmental law. The role that a constitution can play in shaping how environmental law works in practice can be no better demonstrated by the hugely significant role which the Indian constitutional protections of human health has had in developing and 35 L. Kotzé and E. Daly, chapter 46, at 1045. 36 There is an enormous amount of scholarship considering the relationship between the US constitution, and in particular the takings clause, and environmental regulation. Perhaps most prominent in this discussion is J. L. Sax—see e.g. J. L. Sax, ‘Takings, Private Property and Public Rights’ (1971) 81 Yale Law Journal 149. See also chapter 18. 37 J. Salzman, chapter 18, at 376. 38 United States v Lopez, 514 US 549 (1995).

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54 Emma Lees pushing environmental law forward in that country. In their chapter on Indian environmental law, Desai and Sidhu highlight that: [t]he expansive interpretation of Article 21 of the Constitution paved the way for the judicial development of a body of environmental law, giving a broad definition to the meaning of the ‘environment’, taking within its fold quality of life as distinguished from mere animal existence.39

This broad constitutional interpretation has had enormous implications for Indian environmental law, and shows how the dynamism of a constitution, dynamism formed in part of legal culture, can alter the regulatory landscape. Recognizing how significant this constitutional influence can be, we therefore include in this work a chapter which examines the links between constitutional law, administrative law, and environmental regulation. This chapter is in many ways a response to the subtle criticism of instrumentality made by Fisher above, that focus on environmental protection fails to account for administrative constitutionalism and the power allocation function of environmental regulation. Pedersen’s chapter is therefore a very significant part of our editorial methodology, and his conclusion is telling for how the approach of the book is able to account for divergences in legal culture with respect of the role of constitutions and public law more generally: The relationship between environmental law and public and constitutional law is m ultifaceted. From a very general perspective, much of modern environmental law is ‘public’ and would not be in place had it not been for the ability of the state to draw up regulatory mechanisms based on the authority it enjoys . . . Based on this reading, public and constitutional law is facilitative of environmental law . . . public and constitutional law also has the potential to disable what many see as the central feature of environmental law and thereby prevent it from achieving its full potential . . . there is also evidence to suggest that the relationship between environmental law and public and constitutional law is not necessarily a ‘one-way street’. Often, environmental law has, at times through serendipity and at other times through direct design, potentially shaped the form and content of modern constitutional public law. Altogether this suggests that the relationship between, on the one hand, public and constitutional law and, on the other hand, environmental law is multifaceted, complex and often does not follow a predictable path’.40

As an analysis of how the legal culture surrounding constitutional values in a state can influence environmental law, there is no better expression of the complexity of the interactions.

2.3.5 Conclusions on Legal Culture The structure of this work is designed to accommodate discussion of legal culture, ensuring that our analysis of the points of comparison between the countries we have studied is nuanced and rich. We have allowed space for consideration of (at least) three key aspects of 39 B. Desai and B. Sidhu, chapter 10, at 223.

40 O. W. Pedersen, chapter 47, at 1089.

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Value in Comparative Environmental Law 55 legal culture. First, we ensure that the attitude to compliance and wider environmental law forms part of the country studies in the form of the implementation framework, but then take that further by looking in more detail to questions of environmental education and the role that wider societal and cultural influences have on how environmental law has emerged across our systems-based chapters. Second, we have encouraged authors to explain how constitutional and human rights, as well as private law rights, have shaped the e nvironmental law in place in their country by exploring constitutional impacts in relation to the e nvironmental in the opening section of the country studies. This is then given more breadth, allowing for cross-cutting analysis in, amongst others, the chapters concerning property, human rights, and private law. Finally, we have ensured that constitutionality and public law values are captured in our analysis across the work, through the constitutional questions in country studies, through Parts II and III, to culminate in discussion of how public law and environmental law may interact in chapter 47. Whilst we acknowledge that this does not account for all aspects of legal culture—and nor could any study so do—it does ensure that our analysis is squarely framed within an understanding of environmental law as contingent. Our desire to ensure sensitivity to contingency in this way is supported by our authors, many of whom explicitly highlight how important legal culture is to the operation of the rules they are considering.

2.4 Value in Model-thinking The argument of this book, therefore, is that our exploration faces the challenges posed for environmental scholars in seeking at once to analytically describe and draw parallels across the enormous range of national environmental law rules, whilst at the same time being sensitive to the culture and context of those rules, as well as their diverging and conflicting aims. We have sought to be sensitive to the concerns of those who express an anti-instrumentalist view point that focus on models may too readily morph into an unthinking a nalytical framework with a static monolithic goal of environmental protection supported by an assumption that design is the sole predictor of outcome, so-called ‘toolbox thinking’. We have also avoided problem two: that of a lack of sensitivity to context. Indeed, part of the motivation for the structure we have adopted is in fact to allow such sensitivity, without sacrificing analytical rigor but this has not been our main reason for adopting such a structure. Rather, as highlighted in the opening paragraph, our goals are as much practical as they are scholarly. Furthermore, at no point do these chapters claim that any particular model is the best solution to the complex and in many ways irresolvable problems to which environmental degradation and harm can give rise. Instead, we present the options, analysed from a range of perspectives, giving insight into environmental protection across jurisdictions. Furthermore, we argue that the dilemma of the importance of context does not mean that the only solution is for scholars to see each state, and each region within each state, as best considered one-by-one. An appreciation of the role of legal culture, of context, and of the multiplicity of normative and analytical approaches which can be taken in respect of environmental regulation against this background, only becomes fully apparent when the operation of similar design models are indeed seen in different legal contexts.

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56 Emma Lees To this extent, we acknowledge that comparative analysis will not tell us everything about what is good or bad about environmental law, but it will tell us something, and given that much of the literature explains how challenging environmental law is, surely knowing something, even if that knowledge is not perfect, is better than knowing nothing. So, although we may not know whether a rule developed in South Korea would solve the waste management problems in France, we can know whether or not they currently employ the same rule, and if so, can tell something about the two systems if the rules work in one context and not in others. This is not a particularly earth-shattering insight, but it perhaps tells us that whilst we do need to worry about methodology, if worrying about methodology means that we do nothing else but worry about it, then we are going badly wrong somewhere. Similarly, if we suggest that we cannot say anything useful about a particular environmental interaction, system, or problem, because the problem will manifest itself in different cultures and contexts in different ways, then perhaps we not only underestimate the value of our own work, we also overestimate the value of perfection in analysis, failing to recognize the more modest, but nevertheless significant, contribution that imperfect analysis may make. By no means a plea to lower standards, this is instead a plea not to let the search for perfection produce paralysis. Furthermore, the objection to thinking in terms of models is far more complex than ‘legal transplants do not work’ and as such, the answer must be more sophisticated than, ‘we do not suggest that they do’. Rather, we are suggesting that there is value to be found in comparisons and in model-thinking, but that such value can only be realized where the lessons are tempered with a full and nuanced understanding of the fact that legal culture will shape and mould such rules in unpredictable ways, and that since such interactions are very difficult to predict in advance, a sceptical, or pragmatic view, about the value of lessons from one jurisdiction in respect of another in terms of how ‘good a tool’ a legal rule will be, is both healthy and necessary.

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pa rt I

C OU N T RY ST U DI E S

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chapter 3

Austr a li a Douglas Fisher

3.1 Introduction

60

3.2 The Distribution of Powers in Environmental Governance

60

3.2.1 The Constitutional Structure of Australian Environmental Law 3.2.1.1 The Division of Legislative Capacity Between the States and the Commonwealth 3.2.1.2 The Relationship Between Commonwealth and State Legislation in Practice

3.3 The Structure and Substance of Environmental Law

3.3.1 Protection from Pollution and Harm 3.3.1.1 Pollution 3.3.1.2 Harm 3.3.2 Conservation of Environmental Values 3.3.2.1 Protected Areas and Species 3.3.2.2 Heritage Conservation 3.3.3 The Evolution of Ecologically Sustainable Development 3.3.3.1 Controlling Land Use 3.3.3.2 Ecologically Sustainable Development and Climate Change 3.3.3.3 Judicial Responses to Climate Change 3.3.3.4 Statutory Responses to Climate Change 3.3.3.5 The Relevance of Polycentric Decision-making

60 61 63

65 66 66 67 68 68 69 70 70 71 72 73 75

3.4 The Implementation Framework

76

3.5 Conclusion

80

3.6 Selected Bibliography

80

3.4.1 Introduction 3.4.2 The Need for Information and Analysis 3.4.3 Remedies And Sanctions 3.4.3.1 Introduction 3.4.3.2 Enforcing Liability Rules 3.4.3.3 Enforcing Decision-making Rules 3.4.3.4 The Nature of Environmental Litigation

76 76 77 77 77 79 79

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60 douglas fisher

3.1 Introduction The structure and substance of environmental law in Australia are a reflection of each other. The structure is a complex matrix of a series of rules that perform a range of different but related functions within an increasingly integrated system: the substance a complex matrix of physical, biological, and ecological matters that are interconnected with each other but also with the environment of which they are a part. The structure is the creation of the human mind. The substance exists independently of humans but is used and affected by them. The complexity of the law increasingly reflects the complexity of the environment by creating strategic, regulatory, and operational rules in response to the wide variety of human activities involving the environment. The intrinsic complexity of environmental law in Australia is compounded by the federal nature of the system. The Commonwealth—the federal institution—has no direct legislative power in relation to the environment. Accordingly the states have direct control of the environment and its resources. Since the 1980s the Commonwealth has relied upon the technique of indirect environmental governance. In addition the traditional sectoral approach has been increasingly giving way to a more integrated system driven by the fundamental principle of ecologically sustainable development, its supporting principles and the corollary notion of polycentric decision-making.

3.2 The Distribution of Powers in Environmental Governance 3.2.1 The Constitutional Structure of Australian Environmental Law When the Commonwealth of Australia was established as a federation in 1901,1 the federal legislature was invested with the power to make laws with respect to the specific matters set out in the Constitution of the Commonwealth.2 Consequently the legislative capacity of the states and territories3 extended to all matters not specifically allocated to the federal legislature. In the absence of a federal power in relation to the environment, these matters are within the legislative capacity of the states, unless the states refer their powers to the Commonwealth or the Commonwealth exercises its legislative powers indirectly to achieve its environmental objectives. 1 Commonwealth of Australia Constitution Act 1901 (UK). 2 Which is enacted as s. 9 of the Act of 1901. 3 There are six states—New South Wales, Queensland, South Australia, Tasmania, Victoria, and Western Australia; and two territories—Northern Territory and Australian Capital Territory. Although the territories have devolved legislative powers, the Commonwealth retains ultimate legislative capacity in relation to them.

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australia 61

3.2.1.1 The Division of Legislative Capacity Between the States and the Commonwealth4 Until 1974 the involvement of the Commonwealth in environmental governance was described as ‘cooperative federalism’: With States playing the main part in legal regulation and administration and the Commonwealth serving to co-ordinate inquiry, general policy formulation and standard-setting, and specifying budget priorities by direct conditional grants or by influencing State decisions in the spending fields in other ways.5

An exception to cooperative federalism was the exercise by the Commonwealth of the external affairs power in section 51(xxix) of the Constitution in relation to the regulation of offshore marine activities. The approach changed in 1974 when the Environment Protection (Impact of Proposals) Act was enacted by the Commonwealth.6 The object of the Act was to ensure to the greatest extent practicable that matters significantly affecting the environment were fully examined in relation to a range of activities and decision-making processes involving the Commonwealth. The mechanisms included an environmental assessment and an environmental inquiry. The constitutional validity of this approach is important with the overseas trade and commerce power and the external affairs power being particularly critical. This is demonstrated by two cases, the Murphyores case7 and the Tasmanian Dam case8 in which the High Court acknowledged the technique of indirect governance of environmental issues by the Commonwealth. Consider first the Murphyores case which involved the overseas trade and commerce power. In this case the legality of a decision informed by information acquired under the 1974 Act was determined by the High Court.9 Under state legislation, the company was granted leases to extract minerals on Fraser Island in the state of Queensland. It was the company’s intention to export these minerals. The approval of the Commonwealth was required for their export under the customs legislation of the Commonwealth enacted pursuant to the power to legislate with respect to ‘trade and commerce with other countries’. The Commonwealth decided to hold a public inquiry under the Environment Protection (Impact of Proposals) Act 1974 into the environmental effects of exporting the minerals mined on Fraser Island. The report of this inquiry was intended to inform the decision whether to grant export approval. The legal issue was the relevance of environmental considerations in granting export approval. 4 For detailed analyses see D. E. Fisher, Environmental Law—Text and Materials (Sydney: Law Book Company, 1993), chapter 2, G. Bates, Environmental Law in Australia (Sydney: Lexis Nexis Butterworths, 8th edn. 2013), chapter 5 and D. E. Fisher, Australian Environmental Law—Norms, Principles and Rules (Sydney: Thomson Reuters, 3rd edn. 2014), 101–21. 5 G. Sawer, ‘Conservation and the Law’ in A. B. Coston and H. J. Frith (eds.), Conservation (Harmondsworth: Penguin, 1974), 278. See also Fisher, Australian Environmental Law, at 103, 104. 6 This was replaced by the Environment Protection and Biodiversity Conservation Act 1999 (Cth). 7 Murphyores Inc Pty Ltd v Commonwealth (1976) 136 Commonwealth Law Reports 1. For a detailed review see Fisher, Environmental Law, at 53–8. 8 Commonwealth v Tasmania (1983) Commonwealth Law Reports 1. 9 Murphyores Inc Pty Ltd v Commonwealth (1976) 136 Commonwealth Law Reports 1.

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62 douglas fisher There was no doubt that the control of exports fell within the legislative scope of the overseas trade and commerce power. Less clear was whether it was legally relevant to consider the environmental aspects of making a decision in relation to the exportation of these minerals notwithstanding that the protection of the environment was primarily a matter for Queensland. It was accepted that environmental considerations were ‘extraneous to the power conferred’10—namely the control of exports. But there was nothing in the customs legislation to limit the matters relevant to a decision whether to grant export approval. It was therefore lawful to take into account the environmental aspects of the making of decisions relating to the exportation from Australia of minerals extracted from Fraser Island in Queensland. Justice Mason neatly synthesized the approach of the High Court to this dilemma: ‘[i]t is no objection to the validity of a law otherwise within power that it touches or affects a topic on which the Commonwealth has no power to legislate’.11 This approach constitutes a judicial acknowledgement of the technique of indirect federal environmental governance. Then there is the Tasmanian Dam case which involved the external affairs power. The generation of hydro-electric power has long been a feature of the economy of Tasmania. The proposed construction of a dam in the south-west wilderness area of the state had proved to be very controversial. The Commonwealth decided to protect this area. The area was included in the World Heritage List under the Convention for the Protection of the World Cultural and Natural Heritage 1972. To enable the Commonwealth to implement its policy, it enacted the World Heritage Properties Conservation Act 1983. The area in question—a property for the purposes of the Convention—was proclaimed under the Act. The consequence was that a series of activities was prohibited without the written approval of the Commonwealth and these included activities necessary for the construction of the dam. In this way the Commonwealth attempted to control the use and development of land in a state—a matter otherwise within the legislative capacity of the state. Tasmania challenged the constitutional validity of these arrangements in the High Court on a number of grounds. One raised the scope of the external affairs power. Two of the critical issues were whether the 1972 Convention imposed an obligation on Australia and whether the 1983 Act implemented this obligation. Much depended on the language in the Convention. There was a detailed judicial review of Article 5(d) in particular. It states: To ensure that effective and active measures are taken for the protection, conservation and presentation of the cultural and natural heritage situated on its territory, each State Party to this Convention shall endeavour, in so far as possible, and as appropriate for each country: (d) to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage’. Significantly, for the purposes of linguistic analysis, the prefatory object was linked to the substantive obligation. What it does is to impose obligations on each state with the object set out in the opening words of the article.12 These obligations were not absolute. They contained an element of discretion about how they were to be implemented. Did this destroy 10 Ibid., at 12. 11 Ibid., at 22. 12 Commonwealth v Tasmania (1983) 158 Commonwealth Law Reports 1, 133.

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australia 63 their status as obligations? Not so. There is a distinction between a discretion as to the manner of performance and a discretion as to performance or non-performance. The latter, but not the former, is inconsistent with a binding obligation to perform.13

The Convention thus imposed an obligation on Australia. After a detailed analysis of the 1983 Act, it was concluded that the ‘regime of control’ created by the Act was ‘appropriate and adapted to the protection, conservation and preservation of the property to which the prohibitions relate’.14 The Act was constitutionally valid and the Commonwealth could lawfully regulate land based activities in Tasmania which were otherwise a matter for the state.

3.2.1.2 The Relationship Between Commonwealth and State Legislation in Practice These decisions of the High Court have made it clear that the legislation of the Commonwealth and of a state may apply in distinctive ways to the same or related issues. This is particularly significant because the legislative power of the Commonwealth in relation to trading and commercial activities includes not only overseas trade but also interstate trade and commerce15 and trading corporations.16 For interstate trade: [i]t is possible for the Commonwealth . . . to impose [environmental standards in production, manufacture or mining of goods] as a matter of law through regulating the process of production, manufacture or extraction for the purposes of interstate trade or export.17

For trading corporations: [i]t is probable then that the corporations power gives the Commonwealth the power to control the environmental impact of the mining, manufacturing or other activities of trading or financial corporations, as it certainly does with respect to foreign corporations.18

Accordingly a particular proposal impacting on the environment may require the approval of both the Commonwealth and the state: for example, minerals extraction and regulation of water.ater. First, consider minerals extraction. Authorization to mine for minerals responds to the question whether it is in the public interest to extract them, while authorization to use the surface of the land to facilitate access to them responds to the question whether this is an appropriate use of land in the public interest. Both have potential environmental impacts. Prima facie these are matters for the state but the Commonwealth also has an interest. Consider this in the context of mineral extraction in Queensland. The Petroleum and Gas (Production and Safety) Act 2004 of Queensland states: The main purpose of this Act is to facilitate and regulate the carrying out of responsible petroleum activities and the development of a safe, efficient and viable petroleum and fuel gas 13 Ibid. 14 Ibid., at 143. 15 Constitution of the Commonwealth, s. 51(i). 16 Ibid., s. 51(xx). 17 J. Crawford, ‘The Constitution and the Environment’ (1991) 13 Sydney Law Review 11, 26. 18 Ibid., at 25.

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64 douglas fisher industry, in a way that—manages the State’s petroleum resources—in a way that has regard to the need for ecologically sustainable development.19

Although the Act is concerned principally to facilitate the development of the resource—a sectoral approach—environmental perspectives are clearly relevant. The protection of the environment affected by minerals extraction is specifically the function of the Environment Protection Act 1994 of Queensland. This is achieved by the requirement to obtain an environmental authority.20 In addition it is likely that a licence to extract and use water will be required under the Water Act 2000 of Queensland. How can the Commonwealth ensure that its concerns relating to such activities are recognized and protected? To answer this question, assume that the Commonwealth has decided as a matter of policy to assess the environmental impacts of a proposed mining activity by applying its environmental legislation. Does protection of the environmental values in question fall within the scope of the Environment Protection and Biodiversity Conservation Act 1999 of the Commonwealth? Since 2013 an action that involves a coal seam gas or a large coal mining development and the action has, will have, or is likely to have a significant impact on a water resource is prohibited without the approval of the Commonwealth.21 Clearly, the management of coal seam gas, coal, and water and their environmental impacts fall within the legislative capacity of Queensland. What, then, is the basis for the involvement of the Commonwealth? This is a complex issue of major importance. The requirement for Commonwealth approval in these circumstances is imposed specifically upon inter alia: • any person if the action is taken for the purposes of overseas or interstate trade or commerce—the trade and commerce power • a constitutional corporation—the foreign and trading or financial corporations power. Significantly, approval is required if the gas or coal will be exported; if it will be used or processed in a location outside the state of extraction; or if the activity is undertaken by a relevant corporation. Equally significant is the absence of the external affairs power from the sources stated in this provision. The constitutional validity of the 1999 Act has for the most part relied on the external affairs power in relation to, for example, the protection of world heritage areas and the conservation of internationally listed endangered species. In this case, however, the constitutional sources of legislative power have been extended to include trading and commercial activities. Consider now water. The direction of water resources governance by the states during the last two decades of the twentieth century was towards their sustainable use and development. Consider the Water Act 1989 of Victoria. The focus of the Act is revealed, first, by its purposes which include references to the conservation of water resources for sustainable use and to the protection of their environmental qualities and their in-stream uses.22 It is 19 Petroleum and Gas (Production and Safety) Act 2004 (Qld), s. 3(1)(a). 20 Ibid., s. 121(1)(f). 21 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s. 24D inserted by the Environment Protection and Biodiversity Conservation Amendment Act 2013(Cth), Sch. 1. 22 Water Act 1989 (Vic), s. 1.

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australia 65 revealed, second, by the sustainable water strategy and by the content of management plans. The objects of a management plan include: • to make sure the water resources are managed in an equitable manner • to ensure their long-term sustainability.23 While the three elements of ecologically sustainable development are present, it has not been ‘embraced by the Act as a single unifying concept’.24 Victoria is one of the three states that are part of the very extensive geographical and hydrological area described as the Murray-Darling Basin. Its water resources were seen to have been over-allocated towards the end of the twentieth century. The national response was the enactment by the Commonwealth of the Water Act 2007.25 The ultimate objective is to optimize economic, social, and environmental outcomes. The Murray-Darling Basin Plan formulates the rules for the achievement of the objects of the Act. What has emerged is ‘a complex amalgam of protectable rights and enforceable duties’26 to support the planning, regulatory, and market mechanisms therein. The implementation of this system depends to some extent upon the legal arrangements in the states which provide for the grant of water rights. A particular challenge has been the creation of enforceable rules to support interstate trading in water rights. The effectiveness of this complicated set of legal arrangements depends to some extent upon their stated constitutional foundations.27 At an operational level, an act, including an act of the holder of a water access right, inconsistent with the Murray-Darling Basin Plan is prohibited.28 The constitutional basis for this rule is stated to include the constitutional corporations’ power—that is the power in relation to trading and financial corporations—and both the overseas and interstate trade and commerce powers.29 Consequently, a failure to comply with the basin plan attracts the enforcement provisions in the Act. Again, a Commonwealth regulatory instrument is enforceable in an area of environmental governance normally within the competence of a state.

3.3 The Structure and Substance of Environmental Law The law has traditionally regulated the activities of humans inter se and has thus protected their individual interests, including the quality of the environment. But the quality of the environment and the use of its natural resources have become simultaneously a matter of public interest. The challenge for the law has been to recognize both the individual and the

23 Ibid., s. 32A(1). 24 Fisher, Australian Environmental Law, at 185. 25 For a detailed review, see D. E. Fisher, ‘A Sustainable Murray-Darling Basin: The Legal Challenges’ in D. Connell and R. Quentin Grafton (eds.), Basin Futures—Water Reform in Murray-Darling Basin (Canberra: ANU E Press, 2011). 26 Fisher, ‘A Sustainable Murray-Darling Basin’, at 231. 27 Water Act 2007 (Cth), s. 9. 28 Ibid., s. 35. 29 Ibid., s. 36.

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66 douglas fisher public, to accommodate them in an integrated system and to reduce the tensions between them. How has the law in Australia responded to these challenges? Traditionally, the law has responded to events that have occurred in the past by applying the relevant rules stating the standards of behaviour expected—a reactive approach. The rules about the protection of the environment and the use of its resources in the public interest are different.30 They are about future activities, representing a proactive approach. The grant of an interest in land, of a right to extract minerals or of a right to use water is proactive as it permits future activities. The relevant activities are prohibited without approval. These decisions are made in accordance with strategic, regulatory, and methodological rules: or, in some cases, market rules.31 Strategic rules state objectives and outcomes; regulatory rules prescribe the procedural processes in making decisions; methodological rules prescribe the intellectual processes in making decisions. Market rules, rather differently, give to the individual a degree of discretion in achieving the outcomes of the legal arrangements in question. Some of these rules are enforceable in the sense that they create justiciable issues. Some are not, in the sense that they create the broad policy or normative context within which the enforceable rules have effect. These potentially non-justiciable rules are described as paralegal rules. Enforceable rules are described as legal rules. A complex system has accordingly emerged to facilitate ecologically sustainable development.

3.3.1 Protection from Pollution and Harm32 3.3.1.1 Pollution33 Protection from pollution emerged as the first approach to environment protection, originally directed at specific elements of the environment. Thus, the Environmental Protection Act 1970 of Victoria makes it a criminal offence to pollute any waters34 or to cause or permit any waters to be polluted.35 To constitute this offence, one of a range of environmental and human consequences must be satisfied. As early as 1989 it was judicially commented that: Examining the Act as a whole and the purpose it is designed to serve, I conclude it is directed at penalising all those persons in control of potential pollutants who allow, whether by design, neglect or sheer inadvertence, the escape of those pollutants into the e nvironment which then cause damage.36

Moreover the Act created offences of absolute rather than strict liability.37 The liability rule was construed with the assistance of paralegal rules—that is, non-enforceable strategic rules. 30 See generally Fisher, Australian Environmental Law, at 9–12. 31 For a detailed discussion, see ibid., at chapters 10, 11, and 12. 32 For a detailed discussion, see ibid., at chapter 15. 33 See generally ibid., at 457, 458, 461, and 462; and for New South Wales, B. Bateman, P. Davies, and C. Whiting, Regulation of Pollution in New South Wales (Sydney: Prospect Media Pty Ltd, 1999) and R. Lyster, Z. Lipman, N. Franklin, G. Wiffen, and L. Pearson (eds.), Environmental and Planning Law in New South Wales (Sydney: Federation Press, 3rd edn. 2012), chapter 13. 34 Environment Protection Act (Vic), s. 39(1). 35 Ibid., s. 39(2) in conjunction with s. 4(1)—‘pollute’. 36 Allen v United Carpet Mills Pty Ltd [1989] Victorian Reports 323, at 330. 37 Ibid.

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australia 67 Regulatory as well as liability rules are important. For example, the occupier of a scheduled premises must not discharge, emit or deposit any waste into the environment from the premises unless licensed under the Act. The decision-maker—the Environmental Protection Authority (EPA)—must have regard to policy so that the decision is consistent with all applicable policies.38 This is a methodological rule whose substance is the mandated policy. The substance of methodological rules was extended when the eleven principles of environment protection were included in the Act. Some reflect the principles of ecologically sustainable development: for example, the precautionary principle and the principle of intergenerational equity.39 Others reflect responsibility: for example, the principles of shared responsibility, product stewardship, and accountability.40 It has been suggested that ‘the way in which they have been formally structured seems to place environment at the centre rather than as a qualification upon development’.41 But what function do these principles perform? It is stated that it is the intention of Parliament that in the administration of the Act regard should be given to these principles.42 This is clearly structured as a methodological rule but in the form of a Parliamentary intention rather than as a rule.

3.3.1.2 Harm The concept of pollution has been extended in some jurisdictions to address the wider notion of environmental harm.43 The Environmental Protection Act 1994 of Queensland illustrates this approach. ‘Environment’ is defined to include ecosystems, natural and physical resources, and qualities of places with ecological and cultural values.44 This definition is consistent with the idea of an environmental value which is a quality or physical characteristic of the environment that is conducive to ecological health, public amenity, or safety.45 Environmental harm is any adverse or potential adverse effect on an environmental value.46 Harm, however, is the effect of an activity. An analysis of liability involves an analysis of the activity itself as well as of its effect. It has been suggested that: Environmental harm—that is an adverse or potential adverse effect on an environmental value—is unlawful when an act or omission gives rise to one of three specific consequences: serious environmental harm, material environmental harm, environmental nuisance.47

Each of these three consequences is given an interpretation by the Act.48 If the activity and the consequence are proved, the perpetrator is liable unless the act or omission was authorized or was undertaken with reasonable care in accordance with the general environmental duty prescribed by the Act.49

38 Environment Protection Act 1970 (Vic), s. 16 provides for state environment protection policies. 39 Ibid., ss.1C and 1D. 40 Ibid., ss. 1G, 1H and 1L. 41 Fisher, Australian Environmental Law, at 475. 42 Environment Protection Act 1970 (Vic), s. 1A(3). 43 See generally Fisher, Australian Environmental Law, at 462–5 and for Queensland see L. O’Brien, Enforcement of Planning and Environmental Laws in Queensland (Adelaide: Presidian Legal Publications, 2009), chapter 4. 44 Environmental Protection Act 1994 (Qld), s.8. 45 Ibid., s. 9. 46 Ibid., s. 14. 47 Fisher, Australian Environmental Law, at 465. 48 Environmental Protection Act 1994 (Qld), ss. 15–17. 49 Ibid., s. 493A.

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68 douglas fisher In addition, the procedural rules governing an application for an environmental authority are complex. The methodological rules prescribing the decision-making process are equally complex. Some are formal—such as an applicable environmental protection policy or local government plan. One is circumstantial—the character, the resilience, and the values of the receiving environment. Another contemplates the principles of ecologically sustainable development. Then there is the public interest—essentially a contextual issue with a considerable degree of discretion in its interpretation which may well be assisted by the strategic rules stated in the Act—in particular by the object which is: ‘[t]o protect Queensland’s environment while allowing for development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends’.50 This is supported by the duty imposed on persons performing functions or exercising powers under the Act to do so ‘in the way that best achieves the object of this Act’.51 One of the methodological rules stated in the Act is the duty to consider the public interest. It has been judicially stated that ‘it is in the public interest, in determining a development application, to give effect to the objects of the Act’.52 This brings together—in the context of interpreting and applying environmental legislation—strategic rules, methodological rules, regulatory rules, and, in a relevant set of circumstances, liability rules. Each set of rules functions as a counterpoint to the other sets of rules. In this way there is almost an obligation to achieve the object of the legislation—ecologically sustainable development.

3.3.2 Conservation of Environmental Values53 While protection seeks to ensure that the environment is not harmed by activities likely to cause harm, conservation seeks to ensure that the environment is managed in a sustainable way. Additionally there is preservation. Again it contemplates the maintenance of existing qualities and characteristics but probably not with a view to future use. Protection may, in some circumstances, be an aspect of conservation and preservation. The achievement of all three objectives requires proactive decision-making supported by the application of r eactive liability rules.

3.3.2.1 Protected Areas and Species The environment is a multifaceted term. It includes the natural environment and the anthropogenic cultural environment. Nature exists as a set of associated ecosystems scattered across the totality of the environment. The values of nature are accordingly both location specific and ambulatory. The legal arrangements have responded accordingly. Nature may be protected from harm, conserved for the future, preserved as intact as possible, or managed in all of these ways. The approach in New South Wales is instructive. The National Parks and Wildlife Act 1974 conserves the values of nature not only in specific locations but also as threatened species in their own environment. The Wilderness Act 1987 preserves the values of nature in wilderness 50 Ibid., s. 3. 51 Ibid., s. 5. 52 Carstens v Pittwater Council (1999) 111 Local Government and Environmental Reports of Australia, 25. 53 See generally Bates, Environmental Law in Australia, at chapters 11 and 13 and Fisher, Australian Environmental Law, at chapter 16 and for New South Wales see Lyster et al., Environmental and Planning Law in New South Wales, at chapter 11.

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australia 69 areas established and managed under the Act. The 1974 Act provides for seven reserved areas designed to protect and conserve their distinctive natural values.54 The areas include national parks, state conservation areas, and nature reserves. The 1987 Act states three goals to be achieved by the management of a wilderness area. Two are: • To protect the unmodified state of the area and its plant and animal communities • To preserve the capacity of the area to evolve in the absence of significant human interference.55 In each case the legislation sets the strategic framework for managing the areas in question and the values of nature emerge as the substance of obligations imposed upon humans for the recognition and enforcement of these values. Consider the obligations stated in the 1974 Act. Some are area specific: • A duty not to harm any animal within a national park56 • A duty not to prospect or mine for minerals in a national park without express authorization.57 Some are environmentally ambulatory: • A duty not to harm any protected fauna58 • A duty not to harm any threatened species, population or ecological community either as an animal or a plant59 • A duty not by any act or omission to do anything that causes damage to any critical habitat.60 These are a series of liability rules. But the attribution of protected or threatened status to fauna, animals, or plants is a matter of administrative regulation. There is, in addition, a power to grant licences to engage in prohibited activities61 or to use land in protected areas for certain purposes.62 This comprises a set of regulatory rules whose application reflects the strategic framework created by the legislation. The 1974 Act is a combination of liability and regulatory rules effective within this strategic framework.

3.3.2.2 Heritage Conservation63 The legislative arrangements for the conservation of the natural heritage are often associated with those for the conservation of the cultural heritage.64 An interesting model to consider 54 National Parks and Wildlife Act 1974 (NSW), s. 30A (1). 55 Wilderness Act 1987 (NSW), s. 9. 56 National Parks and Wildlife Act 1974 (NSW), s. 45(1)(a). 57 Ibid., s. 41. 58 Ibid., s. 98(2)(a). 59 Ibid., s. 118A(1) and (2). 60 Ibid., s. 118C(1). 61 Ibid., Pt. 9. 62 Ibid., s. 151. 63 See generally M. Evans, Principles of Environmental and Heritage Law (Sydney: Prospect Media Pty Ltd, 2000) and for New South Wales see D. Farrier P. Stein (eds.), The Environmental Law Handbook— Planning and Land Use in NSW (Sydney: Thomson Reuters, 2011), chapter 17 and Lyster et al., Environmental and Planning Law in New South Wales, at chapter 12. 64 See generally Fisher, Australian Environmental Law, at 575–80.

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70 douglas fisher is the Heritage Act 2011 of the Northern Territory. It is no surprise that it comprises a set of strategic, regulatory, methodological, and liability rules. The object of the Act is to provide for the conservation of the cultural and natural heritage of the territory.65 Conservation means: ‘[t]he maintenance, preservation, restoration, reconstruction, adaptation and interpretation of the place or object for the retention of its h eritage significance’.66 The heritage significance of a place or object includes its aesthetic, historical, scientific and social significance.67 The first step in the conservation process is the assessment of the cultural and natural values of the object or place in question. The assessment criteria include: • The territory’s cultural or natural history • Cultural or natural places or environments • Their aesthetic characteristics • Their strong or special associations with particular groups including Aboriginal people.68 The next steps are the declaration that the place or object is of heritage significance. Significantly, an Aboriginal or Macassan archaeological place or object is declared a heritage place and a heritage object69—thereby attracting the mechanisms for conservation. These include agreements with the owner70 and the approval of the carrying out of works for their conservation.71 Heritage places and objects are included in a register.72

3.3.3 The Evolution of Ecologically Sustainable Development The concept of sustainability emerged in Australia in the form of ecologically sustainable development (ESD).73 The noun ‘development’ connotes the use of natural resources for the benefit of the economy and of society—anthropocentricity. The adverb ‘ecologically’ connotes the protection of the environment—ecocentricity. The adjective ‘sustainable’ connotes conservation. ESD incorporates the three distinctive elements—economic, social, and ecological sustainability. Economic development, social development, and conservation are individually unicentric—each directed at one outcome. But the three together direct one outcome which is achieved by a process of polycentric decision-making. The overall goal is ESD but it is achieved—if at all—by a combination of strategic, regulatory, methodological, and liability rules and, to a limited extent, market rules.

3.3.3.1 Controlling Land Use The use and development of the surface of land illustrates the emergence of ESD. The Crown Lands Act 1989 of New South Wales states the principles of Crown land management.74 Included are:

65 Heritage Act 2011(NT), s. 3(1)(a). 66 Ibid., s. 12(1). 67 Ibid., s. 10. 68 Ibid., s. 11. 69 Ibid., ss. 17 and 18. 70 Ibid., Pt. 3.1. 71 Ibid., Pt. 3.2. 72 Ibid., s. 139(3). 73 See generally L. Godden and J. Peel, Environmental Law—Scientific, Policy and Regulatory Dimensions (Melbourne: Oxford University Press, 2010), chapter 10. 74 Crown Lands Act 1989 (NSW), s. 11.

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australia 71 • to observe environmental protection principles • to conserve the natural resources of Crown land • to use and manage Crown land in such a way that both the land and its resources are sustained in perpetuity.75 In Tasmania the Forestry Corporation has the exclusive management and control of all state forests.76 The Forestry Act 1920 of Tasmania contains a commitment to the multiple use of forest land.77 This is supported by the ‘underlying idea’ that: ‘[t]he corporation is expected to engage in its operations consistently with the achievement of sustainable forest management’.78 In these two instances the use and development of land and its resources are closely linked to sustainability. The use and development of land in Australia has for several decades been controlled by land use planning legislation and the detailed plans made thereunder.79 One of the objects of the Environmental Planning and Assessment Act 1979 of New South Wales is to encourage ESD.80 The Development Act 1993 of South Australia is similarly concerned with sustainability but the detail emerges through the matters to be addressed in the development plans that comprise the substance of methodological rules. These are: • to enhance the proper conservation, use, development, and management of land and buildings • to facilitate sustainable development and the protection of the environment • to encourage the management of the natural and constructed environment in an ecologically sustainable manner • to advance the social and economic interests and goals of the community.81 It has been suggested that ‘the structure of these provisions points to a single unifying concept of ecologically sustainable development’.82

3.3.3.2 Ecologically Sustainable Development and Climate Change Climate change is the subject of multilateral international agreements to which Australia is a party.83 It is accordingly the formal responsibility of the Commonwealth to respond to the challenges of climate change. The states have themselves responded to these challenges. There are in general terms two types of responses to climate change: • to reduce the amount of greenhouse gases released or discharged into the atmosphere • to adapt the uses of land and of natural resources to the impacts of climate change. 75 Ibid., s. 11(a), (b), and (e). 76 Forestry Act 1920 (Tas), s. 8(1)(c). 77 Ibid., s. 7. 78 Fisher, Australian Environmental Law, at 178. 79 For a detailed review of the Queensland legislation see P. England, Sustainable Planning in Queensland (Sydney: Federation Press, 2011). 80 Environmental Planning and Assessment Act 1979 (NSW), s. 5(a)(vii). 81 Development Act 1993 (SA), s. 3(c). 82 Fisher, Australian Environmental Law, at 193. 83 See generally T. Bonyhady and P. Christoff (eds.), Climate Law in Australia (Sydney: Federation Press, 2007); D. Hodgkinson and R. Garner, Global Climate Change—Australian Law and Policy (Sydney: Lexis Nexis Butterworths, 2008); T. Bonyhady, A. Macintosh, and J. McDonald (eds.), Adaptation to Climate Change—Law and Policy (Sydney: Federation Press, 2010); A. Zahar, J. Peel, and L. Godden, Australian Climate Law in Global Context (Melbourne: Cambridge University Press, 2013); and Fisher, Australian Environmental Law, at chapter 18.

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72 douglas fisher There are a number of ways of doing so: • by regulating the amount of greenhouse gases emitted by the activity in question • by regulating the use of greenhouse gas emitting fuels • by limiting through natural resource planning processes the type and quantity of carbon available for use • by controlling access to land available to be used in greenhouse gas emitting activities through land use planning processes • by facilitating the storage of greenhouse gases in geological formations by geosequestration • by facilitating the absorption of greenhouse gases into the natural environment by biosequestration • by controlling the impacts of climate change by natural resource and land use planning processes. The formulation of legal arrangements in support of these techniques is no easy task. For the most part they have been statutory but the courts have responded creatively in some cases to these challenges.

3.3.3.3 Judicial Responses to Climate Change A significant issue arose in 2004 in relation to the Planning and Environment Act 1987 of Victoria.84 It involved an amendment to a planning scheme to facilitate the operation of a coal fired electricity power station. The issue for the tribunal was the relevance of greenhouse gas emissions in determining the proposed amendment. The critical methodological rules were the requirement that a planning scheme must seek to further the objectives of planning85 and that any significant environmental effects must be taken into account.86 One of the objectives of planning was to balance the present and future interests of all Victorians87—a strategic rule. According to the tribunal, greenhouse gas emissions were relevant. The decision was a reflection of the statutory language and an indirect a cknowledgement of the principle of intergenerational equity. Another issue came before the Land and Environment Court of New South Wales in 2007.88 It was an application to approve a large-scale wind farm. The relevant Act was silent about greenhouse gases and climate change. Were they relevant? Much of the judicial discussion was about the need for renewable energy. The court reached its decision by reference to the ‘policy framework’ which emerged from the development of legal responses over preceding years.89 It was concluded that Australia was challenged by the effects of climate change and that the energy industry contributed to greenhouse gas emissions: hence the importance of renewable energy sources. The principles of ecologically sustainable development, including intergenerational equity, were important in making decisions about the 84 Australian Conservation Council v Latrobe City Council (2004) 140 Local Government and Environmental Reports of Australia 100. 85 Planning and Environment Act 1987 (Vic), s. 6(1). 86 Ibid., s. 12(2). 87 Ibid., s. 4(1). 88 Taralga Landscape Guardians Inc v Minister for Planning (2007) 161 Local Government and Environmental Reports of Australia 1. 89 Ibid., at 15–41.

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australia 73 ‘development of new energy resources’.90 Accordingly, the need for renewable sources was relevant in determining this application. Equally important is the reaction of the several planning processes to the impacts of climate change. Do changes to the environment impact upon the uses of land and other natural resources designed for the benefit of the human community? A case came before the relevant tribunal in Victoria in 2008 under the Planning and Environment Act 1987.91 It was an application to build dwellings on land in a farming zone close to the coast. There was preliminary evidence that climate change might have an impact in the area. The State Planning Policy Framework stated that the Act is directed ‘towards the interests of sustainable development for the benefit of present and future generations on the basis of relevant policy and legislation’.92 Against this background the tribunal interpreted the rule that imposed a methodological obligation on decision-makers to consider any significant effects the relevant use and development might have on the environment or any significant effects the environment might have on the use or development. Did the effects of climate change fall within the second part of that obligation? The tribunal responded positively: ‘[i]t is our view that the requirement of s 60(1)(e) is sufficiently broad to include the influence that climate change and coastal processes may have on the proposed developments’.93 The tribunal decided accordingly: ‘[s]ea level rise and risk of coastal inundation are relevant matters to consider in appropriate circumstances’.94 And in the circumstances: In the present case, we have applied the precautionary principle. We consider that increases in the severity of storm events coupled with rising sea levels create a reasonably foreseeable risk of inundation of the subject land and the proposed dwellings, which is unacceptable.95

The basis of this approach was the policy framework—a paralegal rule—together with the prescribed methodological rule, the implied strategic rule about sustainable development and the implied methodological rule about the application of the precautionary principle as one of the principles of ecologically sustainable development.

3.3.3.4 Statutory Responses to Climate Change How have the legislatures responded? The Climate Change Act 2017 of Victoria seeks to mandate a strategic approach to the climate change aspects of environmental governance. Two of the relevant principles are informed and integrated decision-making.96 In terms of methodology, two sets of provisions are critical: • the purposes in section 1 • the obligation to have regard to climate change set in section 17.

90 Ibid., at 12. 91 Gippsland Coastal Board v South Gippsland Shire Council (No 2) [2008] Victorian Civil and Administrative Tribunal 1545. 92 Ibid., at [9]. 93 Ibid., at [37]. 94 Ibid., at [46]–[48]. 95 Ibid. 96 Climate Change Act 2017 (Vic), ss. 23 and 24.

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74 douglas fisher The purposes include to facilitate the consideration of climate change issues; to provide for a strategic response to climate change through climate change adaptation plans; and to do so through carbon sequestration techniques.97 The methodological obligation in section 17 applies to decisions made or action taken in accordance with a set of specified statutes including those about: • catchment and land protection • coastal management • environment protection • flora and fauna guarantee • water.98 The matters that must be considered in relation to the decision or action are the potential impacts of climate change and the potential contribution to Victoria’s greenhouse gas emissions.99 The Act creates a distinctive framework for decision-making in the areas of environmental governance seen to be most at risk in the context of climate change. Although ecologically sustainable development is not mentioned, the references to economic, social and environmental considerations implicitly recognize it. In addition the Act recognizes the importance of carbon sequestration techniques. How has the Commonwealth responded? One of the earliest responses was the Renewable Energy (Electricity) Act 2000. The three objects of the Act are stated in section 3: • to encourage the additional generation of electricity from renewable resources • to reduce emission of greenhouse gases • to ensure that renewable energy sources are ecologically sustainable. The reduction of greenhouse gas emissions is achieved by regulating the wholesale acquisition of electricity. A charge is payable by the person who made the acquisition and where there has been a renewable energy shortfall. A shortfall arises when the amount of electricity generated from renewable sources is less than the certificated amount.100 However, the Act says nothing about its constitutional support. The trading corporations power may support the regulation of how electricity is generated by a corporation. The trade and commerce power may do so generally, if it extends to the production and processing of commodities such as electricity. The constitutional foundations of two other responses of the Commonwealth are beyond doubt. Namely: • the Offshore Petroleum and Greenhouse Gas Storage Act 2006 • the Carbon Credits (Carbon Farming Initiative) Act 2011. According to the Act of 2006, the injection and storage of greenhouse gases in offshore areas within the jurisdiction of Australia require approval under the Act. These matters 97 Ibid., s. 1(c), (e), (g), (h), and (i). 98 Ibid., s. 17 (1) and Sch. 1. 99 Ibid., s. 17(2), (3), and (4). 100 Fisher, Australian Environmental Law, at 110–11.

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australia 75 clearly fall within the external affairs power. One of the objects of the Act of 2011 is to implement certain obligations that Australia has under the Convention on Climate Change 1992 and the Kyoto Protocol 1997.101 It does so by creating incentives for people to carry on certain offsets projects undertaken in Australia. A complex regulatory regime enables these entities to engage in projects for carbon abatement for which these entities receive credit in the form of tradeable carbon credit units.102 These arrangements fall within the external affairs power to the extent that they are ‘appropriate and adapted’103 to implement the international obligations in question.

3.3.3.5 The Relevance of Polycentric Decision-making The natural environment itself comprises a large number of potentially competing elements. Add humans and the potentiality for competition is multiplied many times. The principles of ecologically sustainable development have emerged as a guide to addressing this. The intrinsic nature of the concept is becoming clear from the way the courts have interpreted and applied the interrelated sets of rules discussed in the foregoing paragraphs. The complexity of the law merely reflects the complexity of the concept. The decision-making processes involved in achieving ecologically sustainable development have been described as polycentric. The processes are essentially proactive, integrating the economic, social, and environmental perspectives of decision-making. The exercise of the power to determine an application, ‘requires consideration, weighting and balancing of [its] environmental, social and economic impacts’.104 More particularly: The range of interests affected, the complexity of the issues and the interdependence of the issues, means that decision-making involves a polycentric problem. A polycentric problem involves a complex network of relationships, with interacting points of influence. Each decision made communicates itself to other centres of decision, changing the conditions, so that a new basis must be found for the next decision.105

The proactive nature of achieving ecologically sustainable development through a polycentric decision-making process invites a new approach to problem solving. However, whoever makes the decision, it must comply with relevant statutory instructions. Indeed it was judicially commented: The spontaneous transformation of the nature and scope of the issues in resolving polycentric problems makes classic forms of adjudication out of place and instead r esolution by exercise of managerial authority, a form of executive action, more appropriate.106

Whether the courts are reviewing a decision of the executive or making a decision on the merits, the rules prescribing the process are the same. 101 Carbon Credits (Carbon Farming Initiative) Act 2001 (Cth), s. 3(2). 102 See Fisher, Australian Environmental Law, at 688–90. 103 Commonwealth v Tasmania (1983) 158 Commonwealth Law Reports 143. 104 Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure [2013] New South Land and Environment Court 48, at [31]. 105 Ibid. 106 ibid, at [34].

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3.4 The Implementation Framework 3.4.1 Introduction Environmental governance is fundamentally about managing natural resources and the environment in the public interest.107 The legal arrangements for implementing and enforcing environmental rules are in many ways a reflection of the matrix of paralegal, strategic, regulatory, methodological, liability and market rules already discussed. The public sector has a critical but not necessarily a dominant or exclusive role in these arrangements. The objective of environmental governance—ecologically sustainable development—is achieved as a result of the combined efforts of all of the entities within the community who are required or who choose to exercise their powers to ensure compliance.

3.4.2 The Need for Information and Analysis It is important that decisions about the future use of the environment and about past actions impacting on it are based upon credible information and analysis: for example, respectively the undertaking of studies prior to the formulation of plans and proposals and the acquisition of relevant information prior to the commencement of enforcement proceedings.108 Thus, environmental protection legislation generally confers powers ‘to enter and search premises and generally to find out what is happening either with the consent of the owner or occupier or with a warrant’.109 These powers are complemented by a system of assessments and audits. According to section 74 of the Environment Protection Act 1997 of the Australian Capital Territory an audit is an assessment of an activity to determine ‘the source, cause or extent of environmental harm being caused or likely to be caused by the activity’. A similar form of assessment is required at the planning stages of proposed activities likely to have significant environmental impacts.110 An environmental impact statement is required under section 112(1)(a) of the Environmental Planning and Assessment Act 1979 of New South Wales for an activity likely to significantly affect the environment. Moreover, ‘requiring prior environmental impact assessment and approval is a key means of achieving ecologically sustainable development’.111 107 See generally Fisher, Australian Environmental Law, at chapter 17. 108 In relation to planning in Queensland e.g. see O’Brien, Enforcement of Planning and Environmental Laws in Queensland, at chapter 6. 109 Fisher, Australian Environmental Law, at 606. 110 See generally M. Elliott and I. Thomas, Environmental Impact Assessment in Australia (Sydney: Federation Press, 5th edn. 2009); T. Bonyhady and A. Macintosh (eds.), Mills, Mines and other Controversies—The Environmental Assessment of Major Projects (Sydney: Federation Press, 2010); and Bates, Environmental Law in Australia, at chapters 9 and 10; and in relation to New South Wales see Farrier and Stein, The Environmental Law Handbook, at chapters 6 and 7 and Lyster et al., Environmental and Planning Law in New South Wales, at chapters 5 and 6. 111 Bentley v BGB Properties Pty Ltd (2006) 145 Local Government and Environmental Reports of Australia 234, 245.

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3.4.3 Remedies and Sanctions112 3.4.3.1 Introduction The next question is the nature of sanctions and remedies. There are two approaches to this question. The first relates to compliance with liability rules. The second relates to compliance with strategic, regulatory and methodological rules. Liability rules prohibit the proscribed activity: for example, the duty not to pollute waters. A breach of the duty attracts a range of sanctions. Strategic, regulatory, and methodological rules prescribe what and how decisions are to be made: for example, the achievement of ecologically sustainable development and the duty to undertake an environmental impact statement. Liability rules are reactive. What happened? Was there a breach of the rule? If so, what sanction? Strategic, regulatory, and methodological rules are proactive. What outcome is to be achieved? How will it be achieved? What matters are relevant in making these decisions? Is there a justiciable issue? Who may challenge the process? Has the decision-making process complied with the rules? If not, what is the remedy? A range of institutions perform functions in relation to sanctions and remedies.

3.4.3.2 Enforcing Liability Rules Consider, first, enforcement proceedings for breaches of liability rules. In some jurisdictions there is a statutory entity authorized to investigate, monitor, and enforce liability rules: for example, the Environment Protection Authority of New South Wales. In others it is the responsibility of the relevant department of government. There are essentially three types of proceedings: administrative, civil and criminal. An order made by an administrative agency requires activities to be stopped or to be undertaken or it enables the agency to undertake them and hold the perpetrator liable for the expenses. In New South Wales there are four types of environment protection notices: • clean-up notices • prevention notices • prohibition notices • compliance cost notices.113 A prohibition notice requires the cessation of an activity where the emission or discharge of a pollutant is causing or likely to cause harm to the environment.114 Then there are civil proceedings. Who may make such an application? In Queensland the applicant may be: • the Minister • the administering authority • someone whose interests are affected • any other person with the leave of the court.115 112 See Lyster et al., Environmental and Planning Law in New South Wales, at chapter 2 for a discussion of the techniques for enforcement and compliance in New South Wales. 113 Protection of the Environment Operations Act 1997 (NSW), ss. 91, 95, 96, 101, and 104. 114 Ibid., s. 101. 115 Environmental Protection Act 1994 (Qld), s. 505(1).

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78 douglas fisher The judicial institution to which application is made varies: the Federal Court in the case of the Commonwealth, the Supreme Court of a state without a specialist court, or a specialist court if there is one. There are four: • the Land and Environment Court of New South Wales • the Planning and Environment Court of Queensland • the Environment, Resources and Development Court of South Australia • the Resource Management and Planning Tribunal of Tasmania. These four judicial institutions make decisions on their merits and have contributed significantly to the development of environmental jurisprudence. Finally, in relation to liability rules, there are criminal sanctions. These are available not only to enforce breaches of substantive rules but also to enforce administrative and judicial compliance orders: for example, causing pollution or not implementing a clean-up order. The whole gamut of criminal law and procedure applies. Are there any aspects of criminal sanctions relevant but not necessarily exclusive to environmental law? Perhaps five: • infringement notices for minor offences • executive officer criminal liability • relaxation of some rules of evidence • specific remedies apart from imprisonment and fines • aspects of sentencing.116 The amount of a fine as a penalty has emerged as an important issue. The sentencing criteria include ‘the objective circumstances of the offence and the subjective or personal circumstances of the offender’.117 The essence of liability rules is to give the potential offender the opportunity to avoid liability by taking measures to prevent the environmental harm. It has been indicated that ‘precautions may be costly’.118 The potential offender has to choose between costly precautions or a heavy fine. How should a fine be determined? In this way: Legislation of this kind contemplates that, in general, the costs of preventing pollution will be absorbed into the costing of the relevant industries and in that way will be borne by the community or by that part of it which uses the product which the industry produces. In assessing the quantum of a fine considerations of this kind are to be taken into account. The fine should be such as will make it worthwhile that the cost of precautions will be undertaken.119

This is a difficult task. It has been described as the need for the court to impose a sentence which changes the ‘economic calculus’120 for those contemplating an environmentally harmful activity. 116 For a more detailed review see Fisher, Australian Environmental Law, at 616–25. 117 Environment Protection Authority v Ross (2009) 165 Local Government and Environmental Reports of Australia 42, at 52. 118 Axer Pty Ltd v Environment Protection Authority (1993) 113 Local Government and Environmental Reports of Australia 357, at 359. 119 Ibid., at 359. 120 Bentley v BGB Properties Pty Ltd (2006) 145 Local Government and Environmental Reports of Australia 234, at 257.

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3.4.3.3 Enforcing Decision-making Rules Apart from enforcing liability rules, the traditional function of a court in the context of environmental governance has been the judicial review of decision-making. This is clearly different from a decision on the merits but the distinction is often difficult to draw in practice. Much depends upon the structure, form, and language of the public rights and duties in question. Similarly, much depends upon who has standing. According to the common law, the applicant had to demonstrate a proprietary, economic, or commercial interest rather than an interest in ensuring the performance of a public duty.121 The special interest rule was essentially limited to those who could show a particular association with the issue such as ‘the members of a small community of Aboriginal people very long associated’122 with the area and its endangered relics or to an incorporated entity devoted to conservation and recognized publicly as so committed.123 The issue of standing has increasingly been regulated by legislation. In the context of environmental governance, the matter has been seen as one of public interest litigation and the rules of standing appropriately relaxed.124

3.4.3.4 The Nature of Environmental Litigation The statutory and judicial recognition of environmental litigation as public interest litigation reinforces that the environment is a matter of public interest and public interest law. This has influenced the development of environmental jurisprudence. This was noted as early as 1987 by the Court of Appeal of New South Wales whose President said this in a case involving the enforcement powers in the Environmental Planning and Assessment Act 1979: In exercising the discretion, it must be kept in mind the restraint sought is not, in its nature, the enforcement of a private right . . . It is the enforcement of a public duty imposed by or under an Act of Parliament, by which Parliament has expressed itself on the public interest which exists in the orderly development and use of the environment. Because s 123 of the Act permits any person . . . to bring proceedings in the court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid.125

Environmental governance emerges as a combination of paralegal, strategic, regulatory, methodological, and in some cases market rules together with their associated rules of competence in granting remedies. This leads to the conclusion that environmental law in Australia is fundamentally about promoting the public interest in protecting the e nvironment.

121 Australian Conservation Foundation Inc v Commonwealth (1980) 146 Commonwealth Law Reports 493, at 526. 122 Onus v Alcoa of Australia Ltd (1982) 149 Commonwealth Law Reports 27, at 42. 123 North Coast Environment Council Inc v Minister for Resources (1994) 55 Federal Court Reports 492. 124 Fisher, Australian Environmental Law, at 631–4. 125 Warringah Shire Council v Sedevcic (1987) 10 New South Wales Law Reports 335, at 339–40.

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80 douglas fisher

3.5 Conclusion Until the final decades of the twentieth century Australian environmental law was concerned principally with the management of national parks, the facilitation of resource development, and the control of identifiable sources of pollution. The Commonwealth played a very limited role. The nature of the environmental legal system began to change towards the end of the twentieth century. The principal characteristics of the Australian environmental legal system at the beginning of the twenty-first century are these: • increasing Commonwealth involvement through indirect federal environmental governance • the continuation to a limited extent of a sectoral approach to resource development, environmental protection, environmental conservation, and cultural heritage protection • the evolution to an increasing extent of an integrated approach to environmental governance through the principle of ecologically sustainable development • the development of a polycentric approach to decision-making which brings together in terms of substance the economy, society and the environment in the context of ecologically sustainable development • the formulation of a set of rules structured to facilitate proactively the achievement of ecologically sustainable development—namely strategic, methodological, and procedural rules capable of recognition and enforcement.

3.6 Selected Bibliography Bateman, B., P. Davies, and C. Whiting, Regulation of Pollution in New South Wales (Sydney: Prospect Media Pty Ltd, 1999). Bates, G., Environmental Law in Australia (Sydney: Lexis Nexis Butterworths, 8th edn. 2013). Bonyhady, T. and P. Christoff (eds.), Climate Law in Australia (Sydney: Federation Press, 2007). Bonyhady, T. A. Macintosh, and J. McDonald (eds.), Adaptation to Climate Change—Law and Policy (Sydney: Federation Press, 2010). Bonyhady, T. and A. Macintosh (eds.) Mills, Mines and other Controversies—The Environmental Assessment of Major Projects (Sydney: Federation Press, 2010). Crawford, J., ‘The Constitution and the Environment’ (1991) 13 Sydney Law Review 11. Elliott, M. and I. Thomas, Environmental Impact Assessment in Australia (Sydney: Federation Press, 5th edn. Sydney, 2009). England, P., Sustainable Planning in Queensland (Sydney: Federation Press, 2011). Evans, M., Principles of Environmental and Heritage Law (Sydney: Prospect Media Pty Ltd, 2000). Farrier, D. and Hon. P. Stein (eds.) The Environmental Law Handbook—Planning and Land Use in NSW (Sydney: Thomson Reuters, 5th edn. 2011). Fisher, D. E. Environmental Law—Text and Materials (Sydney: Law Book Company, 1993). Fisher, D. E., ‘A View of Jurisprudential Architecture for Sustainable Environmental Governance’ (2010) 18 Environmental Liability 83. Fisher, D. E., ‘A Sustainable Murray-Darling Basin: The Legal Challenges’ in D. Connell and R. Quentin Grafton (eds.), Basin Futures—Water Reform in Murray-Darling Basin (Canberra: ANU E Press, 2011).

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australia 81 Fisher, D. E., Australian Environmental Law—Norms, Principles and Rules (Sydney: Thomson Reuters, 3rd edn. 2014). Godden, L. and J. Peel Environmental Law—Scientific, Policy and Regulatory Dimensions (Melbourne: Oxford University Press, 2010). Hodgkinson, D. and R. Garner, Global Climate Change—Australian Law and Policy (Sydney: Lexis Nexis Butterworths, 2008). Lyster, R., Z. Lipman, N. Franklin, G. Wiffen, and L. Pearson, Environmental and Planning Law in New South Wales (Sydney: Federation Press, 3rd edn. 2012). O’Brian, L., Enforcement of Planning and Environmental Laws in Queensland (Adelaide: Presidian Legal Publications, 2009). Sawer, G., ‘Conservation and the Law’ in A. B. Costin and H. J. Frith (eds.), Conservation (Harmondsworth: Penguin Books, 1974). Zahar, A., J. Peel, and L. Godden, Australian Climate Law in Global Context (Melbourne: Cambridge University Press, 2013).

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chapter 4

Br a zil Antonio Herman Benjamin and Nicholas Bryner

4.1 Introduction

83

4.2 Constitutional Foundations and Federalism

84

4.2.1 Federalism and Environmental Law in Brazil: Constitutional Structure 4.2.1.1 Federal and State Government Ownership and Power to Manage Resources 4.2.1.2 Power to Legislate on Environmental Matters 4.2.2 Constitutional Environmental Rights and Responsibilities 4.2.2.1 Right to an Ecologically Balanced Environment 4.2.2.2 Ecological Function of Property 4.2.2.3 Additional Constitutional Provisions and Principles

4.3 Structure and Substance of Environmental Law in Brazil

4.3.1 Development of Environmental Law in Brazil 4.3.2 Major Statutes and Bodies of Law 4.3.2.1 National Environmental Policy Act of 1981 (Lei 6938/81) 4.3.2.2 Environmental Impact Assessment (Conama Regulation No. 1 of 1986 and No. 237 of 1997) 4.3.2.3 The 2012 Forest Code 4.3.2.4 Protected Areas (2000) 4.3.2.5 Environmental Crimes (1998) 4.3.2.6 Additional Environmental Statutes—Water Law, Climate Change, and Solid Waste

4.4 Implementation: The Critical Challenge

4.4.1 Executive Branch and Administrative Agencies 4.4.2 Prosecutors (Ministério Público) 4.4.3 Judiciary 4.4.3.1 Basic Judicial Structure of Brazil 4.4.3.2 Environmental Jurisprudence and the STJ

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4.6 Conclusion

106

4.7 Selected Bibliography in English

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4.1 Introduction Brazil’s ecological wealth and diversity are unmatched on Earth. The country has six main biomes or eco-regions—the Amazon Basin, Atlantic Rainforest, Cerrado savannas, Caatinga arid and semi-arid shrublands, Pantanal wetlands, and the southern plains of the Pampas—in addition to thousands of kilometres of coastline and a variety of rich marine ecosystems. Its territory is home to at least 104,546 known animal species and 43,893 known plant species—and likely hundreds of thousands more—representing over 20 per cent of the world’s total.1 The country’s continental size, unparalleled biodiversity, and political structure (as a federal state) present significant challenges for conservation. In just half a century, Brazil’s population has expanded from 70 million to over 200 million,2 placing increased pressure on ecosystems and on human health, through rapid urbanization, industrialization, and agricultural expansion.3 This chapter contains four sections: first, an overview of Brazil’s constitutional and federal structure as it relates to the environment; second, an examination of the country’s major bodies of law in the context of Brazil’s transition towards more holistic regulation of human interaction with its vast natural resources;4 third, a description of its implementation framework, including administrative and judicial bodies, as well as the special and important role of the environmental public prosecutors (Ministério Público) in both civil and criminal spheres; and finally, a more detailed look at the application of law in combating unsustainable deforestation and land use changes. 1 Government of Brazil, Convention on Biological Diversity Fifth National Report (2015), 65 (citing various scientific data sources and estimates). 2 World Bank DataBank, available at: http://data.worldbank.org/indicator/SP.POP.TOTL?locations=BR. 3 For a comprehensive discussion of environmental law in Brazil, see A. H. Benjamin, ‘Introdução ao Direito Ambiental Brasileiro’ (April/June 1999) 14 Revista de Direito Ambiental 48–82. The first extensive analysis of the subject in English is R. W. Findley, ‘Pollution Control in Brazil’ (January 1988) 15 Ecology Law Quarterly 1–68. Brazilian literature on environmental law is both vast and sophisticated. Considering the overall purpose of this book, as well as space constraints, citations in Portuguese are only provided for a few articles written by this chapter’s co-authors. For a deeper and more diverse understanding of Brazilian environmental law, see the Revista de Direito Ambiental [Environmental Law Review], a highly respected journal, and the oldest publication of its kind in Latin America, edited by the Law for a Green Planet Institute (Instituto ‘O Direito por um Planeta Verde’) and published by Thomson Reuters, available at: https://www.thomsonreuters.com.br/pt/juridico/webrevistas/RDA-revista-de-direito-ambiental.html. 4 For a critical study on the development and implementation of environmental law in Latin America, see e.g. A. H. Benjamin, ‘A proteção do Meio Ambiente nos Países Menos Desenvolvidos: o Caso da América Latina’ January/ December 1995) 0 Revista de Direito Ambiental 83–105.

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4.2 Constitutional Foundations and Federalism Brazil is a federal republic. The Federal Constitution of 19885 provides the institutional framework for three different levels of government—federal, state,6 and municipal—and allocates authority among them to manage natural resources, to legislate, and to enforce environmental laws. The Constitution also lays out key environmental rights and responsibilities.7

4.2.1 Federalism and Environmental Law in Brazil: Constitutional Structure Brazil’s Constitution provides a structure for federalism in environmental law in two ways. First, it grants federal (and state) ownership of and power to manage certain natural resources; second, it apportions legislative and enforcement power on environmental issues to the federal government, states, and municipalities.

4.2.1.1 Federal and State Government Ownership and Power to Manage Resources Article 20 of the Constitution lists the ‘property of the Union’, including federal ownership of water: ‘lakes, rivers, any watercourses within [the federal] domain, or that flow in more than one State, that form boundaries with other countries, extend into foreign territory or proceed therefrom, as well as bank lands and river beaches’.8 Federal ownership of water also extends to ‘river and lake islands in border areas with other countries; ocean beaches; [and] marine and coastal islands’ (with some exceptions). Mineral resources, including subsurface minerals, are also exclusively owned by the federal government.9 At the subnational level, states retain ownership of water—surface and subterranean—not controlled by the federal government.10 States and municipalities are also guaranteed some participation in or financial benefit from the use of federally owned minerals and natural resources (such as oil and gas exploration or hydroelectric power projects).11 The present 5 Constituição da República Federativa do Brasil de 1998 (hereafter ‘Constitution’). An unofficial English translation (with amendments through 1996) is available via the Georgetown Political Database of the Americas at http://pdba.georgetown.edu/Constitutions/Brazil/english96.html. 6 Brazil has twenty-six states, as well as a Federal District where the national capital, Brasília, is located. 7 For a comprehensive analysis of the constitutional protection of the environment in Brazil, see A. H. Benjamin, ‘Constitucionalização do Ambiente e Ecologização da Constituição Brasileira’ in J. J. Gomes Canotilho and J. R. Morato Leite (eds.), Direito Constitucional Ambiental Brasileiro (São Paulo: Saraiva, 5th edn. 2012), 83–156. 8 Article 20, III Constitution. 9 Article 20, IX; art. 176 Constitution. 10 Article 26 Constitution. 11 Article 20, § 1 Constitution.

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Brazil 85 constitutional arrangement dramatically changed the prior legal framework under the 1934 Water Code, which recognized federal, state, municipal, and private w atercourses.12 Public ownership of natural resources carries with it the government’s responsibility for sustainable management,13 and the constitutionalization of this responsibility alters the dynamic between public interests and privately held property rights. For example, in 2009, Brazil’s National High Court (Superior Tribunal de Justiça, or STJ) held that public ownership of water under the Constitution defeated a private party’s claim for compensation against a state electricity company, because the property was not in private hands.14

4.2.1.2 Power to Legislate on Environmental Matters The Constitution expressly distributes the authority to legislate on environmental matters to both the federal and state governments.15 Federal law is superior to conflicting state or municipal law. Municipalities are not given explicit authority to regulate environmental issues. However, the Constitutional Court (Supremo Tribunal Federal (STF)) has consistently held that ‘municipalities have concurrent authority to legislate on environmental matters, within the limits of their local interests, and to the extent that such actions are not inconsistent with federal or state law’.16 Federal law predominates in many fields, including environmental law. Brazil has, by express constitutional provision, one national Civil Code17 and one Criminal Code.18 Most of the major environmental and natural resources statutes, such as the Forest Code,19 the National Water Resources Policy Act,20 and the Environmental Crimes Act,21 are federal. There is some variation among states in legislation22 and in enforcement. The most heavily populated and industrialized states, in the south and southeast regions of the country, experience 12 See A. H. Benjamin, ‘Water Justice: The Case of Brazil’ (2018) 48 Environmental Law Report 10211 (Environmental Law Institute 2018); A. H. Benjamin, C. L. Marques, and C. Tinker, ‘The Water Giant Awakes: An Overview of Water Law in Brazil’ (2005) 83 Texas Law Review 2185. 13 This is clear when the provisions of the Constitution delineating ownership of natural resources are read together with Art 225 (discussed below), which places a duty on the government (and the community) ‘to defend and preserve [the environment] for present and future generations’. Article 225 Constitution. 14 S.T.J., REsp No. 508.377/MS, 2d Panel, Relator: Min. João Otávio de Noronha, 23 October 2007, DJe. 11.11.2009. See N. S. Bryner, ‘Public Interests and Private Land: The Ecological Function of Property in Brazil’ (2016) 34 Virginia Environmental Law Journal 122, at 142–4 (discussing the case). 15 Article 24, VI Constitution (the federal government, states, and Federal District have ‘concurrent’ authority over ‘forests, hunting, fishing, fauna, conservation of nature, protection of soil and natural resources, environmental protection, and pollution control’). 16 S.T.F., RE No. 633, 548 AgR/GO, 2d Panel, Relator: Min. Edson Fachin, DJe 11 April 2017. See also Lei Complementar No. 140, Art. 9; Estatuto da Cidade, Lei No. 10.257, de 10 de julho de 2001. 17 Código Civil, Lei No. 10.406, de 10 de janeiro de 2002, available at: http://www.planalto.gov.br/ ccivil_03/leis/2002/L10406.htm. 18 Código Penal, Decreto-Lei No. 2.848, de 7 de dezembro de 1940, available at: http://www.planalto. gov.br/ccivil_03/decreto-lei/Del2848.htm. 19 Código Florestal, Lei No. 12.651, de 25 de maio de 2012 (the Forest Code superseded the older Code, previously enacted as Act 4.771 of 1965). 20 Lei da Política Nacional de Recursos Hídricos, Lei No. 9.433, de 8 de janeiro de 1997. 21 Lei dos Crimes contra o Meio Ambiente, Lei No. 9.605, de 12 de fevereiro de 1998. 22 e.g. the State of Santa Catarina has enacted its own ‘Environmental Code’ (Lei 14.675, 2009).

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86 Antonio Herman Benjamin and Nicholas Bryner urban and industrial environmental impacts on a scale not seen in poorer, rural areas, and have developed more specialized institutions and laws for addressing these problems.23 In 2011, Congress passed Complementary Act 140, which profoundly altered the environmental federalism relationship. Rooted in Article 23 of the Constitution, the Act delineated responsibilities between the federal and subnational governments, with the effect of decentralizing government authority in some key areas, in particular, environmental licensing and permitting, and enforcement in cases of illegal deforestation. The 2011 law was billed as an effort towards improved efficiency and democratization through decentralization.24 It was, however, the result of enormous pressure from industrial and agricultural sectors, which wanted less federal intervention and more power in the hands of the states. It mandates that for any regulated activity, environmental permitting or licensing requirements can only be imposed by one level of government, whether federal, state, or municipal; no overlapping requirements at other levels may be imposed.25 The Act turns over environmental permitting and licensing to state authorities for intrastate matters, such as forest and vegetation management (including forest and vegetation on private rural landholdings, a critical issue with regard to deforestation), transportation of hazardous materials, regulation of fishing, etc.26 Federal licensing and permitting authority is limited to activities that cut across international or interstate boundaries, take place on indigenous lands or on federally designated protected areas, and a limited range of other circumstances (e.g. related to the military or to radioactive material or nuclear energy).27 Regulation of activities with environmental impacts that are local in nature, as defined by state authorities, is reserved for municipal authorities.28 Despite this Act, courts have recognized that all three levels of government maintain police powers in enforcing environmental laws, particularly with respect to the protection of flora. In 2015, a federal regulation clarified some of the division of authority in Complementary Act 140. In particular, it reserves for the federal government licensing authority over all unconventional oil and gas development (such as hydraulic fracturing for recovery of shale gas, and other development of oil sands, coalbed methane, etc.).29

23 Note e.g. that São Paulo, Brazil’s most populous and most industrialized state, was the first (and only one so far) to establish a special chamber of its supreme court to address environmental matters (there are now two chambers); the state also has an environmental division within the Office of the Attorney General. L. McAllister, Making Law Matter: Environmental Protection and Legal Institutions in Brazil (Stanford: Stanford University Press, 2008) illustrates some of the differences between the enforcement institutions in São Paulo and those in the large, sparsely populated areas of the Amazonian state of Pará. Another example of state-level innovation in environmental laws is the Forest Code of the State of Minas Gerais. Lei Estadual No. 20.922, de 16 de outubro de 2013, available at: http://www.siam.mg.gov. br/sla/download.pdf?idNorma=30375. Several states have created ‘river basin environmental prosecutors’, a concept originally proposed in São Paulo by one of this chapter’s co-authors, see A. H. Benjamin, ‘Um Novo Modelo para o Ministério Público na Proteção do Meio Ambiente’ (April/June 1998) 10 Revista de Direito Ambiental 7–13. 24 Lei Complementar No. 140, de 8 de dezembro de 2011, Art. 3, available at: http://www.planalto.gov. br/ccivil_03/leis/LCP/Lcp140.htm. 25 Ibid., Art. 13. 26 Ibid., Art. 8. 27 Ibid., Art. 7. 28 Ibid., Art. 9. 29 Decreto No. 8.437, de 22 de abril de 2015, Art. 3, caput, VI.

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4.2.2 Constitutional Environmental Rights and Responsibilities The Constitution of 1988 transformed environmental law in Brazil by including environmental rights, responsibilities, and related principles in the country’s central legal charter.30 In the 1980s, as Brazil transitioned from military rule to democratic government, environmental interest groups played a significant role in the drafting of the new Constitution. For the first time, the Constitution included a chapter (and other provisions) dedicated to environmental matters; it also incorporated other values important to the political reform at the time, such as transparency, judicial and prosecutorial independence, and an expanded focus on human rights, all of which led to improvements in the legal system’s capacity to address environmental challenges.

4.2.2.1 Right to an Ecologically Balanced Environment Brazil’s Constitution specifically provides for a fundamental human right to environmental protection. The heading (caput) of Article 225 states that ‘[a]ll have the right to an ecologically balanced environment, which is an asset of common use and essential to a healthy quality of life, and both the Government and the community shall have the duty to defend and preserve it for present and future generations’.31 The STF has ruled on the environmental provisions of the Constitution on a number of occasions. It has held that Article 225 represents ‘one of the most expressive rights guaranteed to contemporary social groups’, or in other words, ‘that all have the right to an e cologically balanced environment’.32 In addition to this overarching statement of rights and responsibilities, Article 225 includes specific mandates, such as the requirement of environmental impact assessments for activities that ‘may potentially cause significant degradation of the environment’ and a charge to maintain ‘essential ecological processes’ in the country’s various ecosystems.33

4.2.2.2 Ecological Function of Property The ‘greening’ of Brazil’s Constitution is also apparent elsewhere in the text. Various provisions combine to articulate an ‘ecological function of property’ that places obligations on private landowners with regard to their land.34 The principle of an ecological function of property recognizes that the public holds an interest in the health and functioning of 30 Portions of this section borrow from the discussion of Brazilian constitutional environmental law in N. S. Bryner, ‘Brazil’s Green Court: Environmental Law in the Superior Tribunal de Justiça’ (2012) 29 Pace Environmental Law Review 470, at 480–2. 31 Article 225, caput Constitution. 32 S.T.F., MS 22,164/SP, Relator: Min. Celso de Mello, en banc, DJ 17 November 1995. 33 Article 225, para. 1 Constitution. 34 See A. H. Benjamin, ‘O Meio Ambiente Na Constituição Federal de 1988’ (2008) 19(1) Informativo Jurídico 37 (2008) 37–80; Bryner, ‘Public Interests and Private Land’. This section draws significantly from the conclusions and the case law cited in the above articles.

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88 Antonio Herman Benjamin and Nicholas Bryner natural ecosystem services that occur on private property; individual landholders have a degree of responsibility to maintain the ecosystem services and ecological attributes of the land.35 Article 186 requires ‘appropriate use of available natural resources and preservation of the environment’ as a condition of private property ownership and management, within the Constitution’s definition of the ‘social function of property’.36 Combined with the duty to preserve ‘essential ecological processes’,37 courts have recognized an ecological dimension to the social function of property, which also compels the judiciary to interpret federal environmental law consistent with that constitutional framework. The principle of the ecological function of property serves as a constitutional point of departure and justification for important elements of Brazilian environmental law, particularly those laws that impose conservation requirements on private property owners. It has also been relevant in the context of regulatory takings or indirect expropriation that have been pervasive, notably in respect of the protection of the Atlantic Forest, the most endangered of the Brazilian biomes.38 Of special importance is the Forest Code (described in greater detail in section 4.3.2.3). The STF, in a case on the establishment of a protected area by the federal government, held that ‘in light of Article 225 of the Constitution, conflict between individual and societal interests must be resolved in favor of the latter. . . . The right to property is not absolute. It must be read relative to other provisions in the Constitution . . . .’39 Along the same lines, the STJ, in one of its decisions, interpreted the scope of private property rights under the Constitution, dispelling ‘the hypothetical notion of a total or absolute right of enjoyment of rural or urban real property’, given that both before and in the 1988 Constitution, environmental conditions have been imposed on the use of land, which ‘are based on the ecological function of the property rights’. The court concluded: ‘Today, what prevails is the position that the owner is lord of the land only insofar as is consistent with respect for the aspirations established in favor of society as a whole and of future g enerations, including, with ever-increasing importance, environmental protection. This takes the form of a kind of collective and intergenerational socio-ecological contract as the new framework for property rights.’40 The Constitution’s recognition of the ecological function of property signifies that the public holds an interest in those ecological aspects, portions, or characteristics of private property that are necessary to preserve essential ecosystem services. This not only gives constitutional weight to many areas of environmental regulation in Brazil, but also makes clear that private parties bear responsibility for developing their activities in a manner consistent with environmental sustainability.

35 Bryner, ‘Public Interests and Private Land’, at 125. 36 Article 186, II Constitution. 37 Article 225, para. 1 Constitution. 38 See A. H. Benjamin, ‘Reflexões sobre a Hipertrofia do Direito de Propriedade na Tutela da Reserva Legal e das Áreas de Preservação Permanente’ (October/ December 1996) 4 Revista de Direito Ambiental 41–60. 39 S.T.F., MS 25284/DF, Relator: Min. Marco Aurélio, en banc, DJe 12 August 2010. 40 S.T.J., REsp No. 1.240.122/PR, at 7–9, 2d Panel, Rel. Min. Antonio Herman Benjamin, 28.06.2009, D.Je. 11 September 2012, (emphasis in original) (internal citations omitted). The case is discussed in Bryner, ‘Public Interests and Private Land’, at 132–5.

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4.2.2.3 Additional Constitutional Provisions and Principles Various other articles address environmental matters.41 For example, Article 5, which lists fundamental rights and guarantees, provides for universal legal standing to challenge (among other things) acts that cause harm to the environment or to the country’s historical and cultural heritage (ação popular).42 Article 129 expressly gives the federal and state public prosecutors, or Ministério Público, a mandate to bring public civil actions (ação civil pública) for the protection of the environment (such actions may also be brought by third parties, including environmental non-governmental organizations (NGOs)).43 Article 170 lists ‘defense of the environment’ as one of the principles around which the country’s economic order is to be established.44 Article 174 also requires consideration of environmental protection in cooperative mining operations.45 Article 200 calls on the nation’s unified health system to ‘collaborate’ on environmental protection, given the links with public health.46 Article 216 includes sites of ecological value as part of the country’s cultural heritage.47 Article 220 envisions a role for federal law in regulating the marketing or advertising of ‘products, practices, and services that may be harmful to health and the environment’.48 Article 231, on the rights of indigenous peoples to their traditional lands, recognizes the importance of areas ‘indispensable for the preservation of the environmental resources necessary for their well-being’.49 All of these provisions, considered together, paint a picture of a constitutional framework that emphasizes the importance of environmental concerns in every aspect of human life and society.

4.3 Structure and Substance of Environmental Law in Brazil 4.3.1 Development of Environmental Law in Brazil Environmental law predates the 1988 Constitution in most areas.50 Beginning with the colonization of Brazil by the Portuguese in the 1500s, regulation of human interaction with the environment can be roughly split into three eras. Throughout the colonial period, the economy was based on the extraction of natural resources and the exploitation of slave labor. Until the mid-1900s, laissez-faire natural resource use meant that, in general terms, the development of mining, agriculture, and timber was pursued regardless of the impact on the land. One exception was regulation of brazilwood (pau brasil), which had already been so overexploited by the Portuguese as to make it extremely scarce. Beginning in the

41 See Bryner, ‘Brazil’s Green Court’, at 481 fn. 53. 42 Article 5, LXXIII Constitution. 43 Article 129, caput, III Constitution. 44 Article 170, cl. VI Constitution. 45 Article 174, § 3 Constitution. 46 Article 200, cl. VIII Constitution. 47 Article 216, cl. V Constitution. 48 Article 220, § 3, cl. II Constitution. 49 Article 231, § 1 Constitution. 50 This section borrows significantly from Benjamin, ‘Introdução ao Direito Ambiental Brasileiro’.

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90 Antonio Herman Benjamin and Nicholas Bryner 1930s, Brazil adopted forest and water codes, in addition to health-based environmental regulation, that provided a foundation for subsequent legislation. The next significant stage in the evolution of the environmental legal framework was the 1960s, characterized by separate sectoral regulatory approaches. In particular, a new Forest Code was adopted in 1965 (it was replaced again in 2012, but many of the same key provisions have been retained).51 The Hunting Code52 and Mining Code53 followed in 1967. All of these were promulgated during the early years of Brazil’s military regime, which took power in 1964. In the 1980s, Brazil’s environmental law at the national level began a third phase, developing at a greater pace. In 1981, the National Environmental Policy Act was enacted,54 which, for the first time, sought to address environmental challenges from a holistic perspective. Furthermore, together with a larger societal push towards greater democratization and public participation the country adopted the Public Civil Action Act in 1985,55 which authorizes both civil society organizations and public prosecutors to bring lawsuits against private parties or government agencies—seeking either injunctive relief, restoration, and/or monetary damages—in cases involving ‘collective and diffuse interests’. This has enabled prosecutors to take the lead in public interest litigation in a number of fields, including environmental law.

4.3.2 Major Statutes and Bodies of Law 4.3.2.1 National Environmental Policy Act of 1981 (Lei 6938/81) The National Environmental Policy Act of 1981 (NEPA) serves as the main, foundational piece of legislation in Brazil on the environment (loi-cadre). It provides the definition of key concepts, establishes the framework for environmental administration,56 and lays out a number of additional points, principles, and instruments. Predating the 1988 Constitution and the 1992 Rio Conference (Earth Summit), and enacted during the military regime, the general structure and basic tenets of NEPA, considered very progressive at that time, ended up directly influencing the text of the Constitution itself. Over the years, judicial interpretation of the key provision of NEPA has systematized, clarified, and expanded some of its core concepts. For example, combining the 1988 Constitution and Lei 6938, the STJ has ruled that the Brazilian system of environmental protection ‘is based, among other principles, on the concepts of prevention, polluter-pays, and full restoration’.57 Furthermore, in other precedents, the court not only recognized the precautionary principle (though not

51 Forest Code, Lei No. 4.771, de 15 de setembro de 1965 (superseded by Lei No. 12.651, de 25 de maio de 2012). 52 Hunting Code, Lei No. 5.197, de 3 de janeiro de 1967. The Hunting Code was revised in 1988 and renamed as he Fauna Protection Act (Lei de Proteção à Fauna). Benjamin, ‘Introdução ao Direito Ambiental Brasileiro’, at 51. 53 Mining Code, Decreto-Lei No. 227, de 28 de fevereiro de 1967. 54 National Environmental Policy Act, Lei No. 6.938, de 31 de agosto de 1981. 55 Public Civil Action Act, Lei No. 7.347, de 24 de julho de 1985. 56 The agencies and institutions established by the Act are discussed in section 4. 57 S.T.J., REsp 605,323/MG, 1st Panel, Relator: Min. Teori Zavascki, DJ 17 October 2005, 179.

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Brazil 91 included explicitly in the Act), but also, based on the principle, derived the reversal of the burden of proof in environmental matters.58 Definitions. The Act defines three key terms—environment, pollution, and polluter—that are relevant for all related law in the country; it also gives ancillary definitions of ‘environmental resources’ and ‘degradation of environmental quality’.59 Environment is defined broadly as ‘the set of physical, chemical, and biological conditions, laws, influences and interactions that permits, shelters and regulates life in all its forms’.60 ‘Environmental resources’, in turn, are defined as ‘the atmosphere, surface and ground waters, estuaries, territorial sea, soil, subsoil, elements of the biosphere, fauna and flora’.61 ‘Pollution’ is also given a broad, encompassing definition: the degradation of environmental quality resulting from activities that directly or i ndirectly a) harm the health, security or well-being of the population; b) create conditions adverse to social and economic activity; c) negatively affect the biota; d) affect the aesthetic or sanitary conditions of the environment; e) release material or energy in violation of established environmental standards.62

It thus includes not only the direct emission of pollutants into the air, water, or soil, but also covers activities that negatively impact human, plant, or animal life. A ‘polluter’ is a ‘physical or legal person, in public or private law, responsible, directly or indirectly, for activity that causes environmental degradation’.63 This opens up the potential for holding liable not only individuals, but also corporations, financial institutions, and government agencies that grant permits. Penalties, strict liability, and joint and several liability. Article 14 of the Act sets out generally applicable, default penalties for violations. It also establishes the rule of strict (no-fault) liability for environmental damage.64 Article 14, paragraph 1 reads: Notwithstanding the applicability of penalties described in this article, a polluter is obligated, regardless of the existence of fault, to compensate or provide reparations for damage caused to the environment or to third parties, affected by his or her activity. The Federal and State Public Prosecutors shall have standing to bring an action alleging civil or criminal liability for damage caused to the environment.65 58 The ‘precautionary principle implies shifting of the burden of proof ’. S.T.J., AgInt no AREsp 1,090,084/MG, 2d Panel, Relatora: Min. Assusete Magalhães, DJe 28 November 2017. Likewise, ‘The precautionary principle implies shifting of the burden of proof, requiring that those alleged to have caused environmental damage prove that they did not or that the substance emitted into the environment is not potentially harmful.’ S.T.J., REsp 1,060,753/SP, 2d Panel, Relatora: Min. Eliana Calmon, DJe 14 December 2009. In more general terms, even when the STJ has not applied the precautionary principle, the court has affirmed that those who allegedly create the risk of environmental damage bear ‘the full burden of proving that their conduct was not harmful’, leading to, in such cases, ‘shifting the burden of proof ’. S.T.J., REsp 1,049,822/RS, 1st Panel, Relator: Min. Francisco Falcão, DJe 18 May 2009. 59 Lei No. 6.938, de 31 de agosto de 1981, Art. 3. 60 Ibid., Art. 3, I. 61 Ibid., Art. 3, V. 62 Ibid., Art. 3, III. 63 Ibid., Art. 3, IV. 64 For a comprehensive analysis of the civil liability regime for environmental damage in Brazil, see A. H. Benjamin, ‘Responsabilidade Civil pelo Dano Ambiental’ (January/ March 1998) 9 Revista de Direito Ambiental 5–52. 65 Lei No. 6.938, de 31 de agosto de 1981, Art. 14, § 1.

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92 Antonio Herman Benjamin and Nicholas Bryner The broad definition of ‘pollution’, ‘polluter’ (both ‘direct’ and especially ‘indirect’), and the imposition of strict civil liability form the backbone of environmental law in Brazil. The Act does not provide for specific legal regimes for pollution in different environmental media. Rather, its ‘generic’ prohibition on pollution is the sole basis for a host of norms expressed in regulations and decrees, encompassing both ‘brown’ and ‘green’ areas of environmental law.66 The wide scope of Article 14 has led banks and financial institutions to try, unsuccessfully so far, to change this provision in Congress and in the courts, in order to make it clear that the general joint and several strict liability standard of liability would not apply to them, unless they have acted with negligence or lack of due diligence.

4.3.2.2 Environmental Impact Assessment (CONAMA Regulation No. 1 of 1986 and No. 237 of 1997) The National Environmental Policy Act of 1981 included for the first time in Brazilian law the concept of environmental impact assessment (EIA).67 The Act listed EIA as an ‘instrument’ of national environmental policy, and gave jurisdiction over EIA issues to the newly formed National Council on the Environment (CONAMA in Portuguese).68 In 1986, CONAMA issued Regulation No. 1, which provides the requirements for what must be included in the EIA process and in the accompanying environmental impact statement (relatório de impacto ambiental).69 CONAMA made some revisions and added additional detail in Regulation No. 237 in 1997.70 The Regulations require an EIA to be conducted, and a statement be provided, in order to obtain an environmental permit from a state agency (or from the federal government or municipality, depending on the type and scope of project)71 for activities that ‘effectively or potentially cause significant environmental degradation’.72 The project proponent is required to pay all costs associated with the EIA.73 Environmental impact assessments and statements must include, at a minimum: a study of the baseline physical, biological, and socio-economic conditions of the affected environment; a description of the project and various alternatives—technological and/or geographical, including the possibility of not taking any variation of the proposed action;74 an analysis of the environmental impacts of each alternative, and projections as to the e nvironmental quality of the area affected by the potential project in the future under those scenarios; description and discussion of applicable measures to mitigate unavoidable negative impacts;

66 See Benjamin, ‘Introdução ao Direito Ambiental Brasileiro’, at 73–8. 67 Lei No. 6.938, de 31 de agosto de 1981, Art. 9, III. 68 Ibid., Arts. 8, II; 9, III. 69 National Environmental Council (CONAMA) Regulation No. 1, de 23 de janeiro de 1986. 70 Article 3 National Environmental Council (CONAMA) Regulation No. 237, de 19 de dezembro de 1997. 71 Article 2 National Environmental Council (CONAMA) Regulation No. 1, de 23 de janeiro de 1986. Regulation No. 1 includes an illustrative list of sixteen types of projects that affect the environment and that clearly require an EIA. In 1997, Regulation No. 237 expanded this list into 23 categories with more detailed descriptions of what activities are covered. See Art. 2; Annex I National Environmental Council (CONAMA) Regulation No. 237, de 19 de dezembro de 1997. 72 Article 3 National Environmental Council (CONAMA) Regulation No. 237, de 19 de dezembro de 1997. 73 Article 8 National Environmental Council (CONAMA) Regulation No. 1, de 23 de janeiro de 1986. 74 This concept is referred to under the US National Environmental Policy Act implementing regulations as the ‘no action’ alternative. See 40 CFR 1502.14(d).

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Brazil 93 a programme for monitoring impacts and for future evaluation; and a recommendation as to which alternative is ‘most favorable’.75 Controversial projects can be subject to years of legal challenges throughout the EIA process. One particularly contentious example is the Belo Monte hydroelectric project on the Xingu River in the Amazon (the third largest hydroelectric plant in the world, in terms of installed capacity). Litigation has led to back-and-forth judicial decisions, alternatively halting and allowing construction of the dam. On several occasions, judges at the Federal Appeals Court (Tribunal Federal Regional (TRF)) for the First Circuit in Brasília blocked or invalidated licences for defects in the EIA process;76 however, these injunctions were overturned either by the TRF itself or by the STF.77 The case highlights the overlap between environmental law and related fields, including human rights law and the regulation of governmental interactions with indigenous peoples.78

4.3.2.3 The 2012 Forest Code Brazil’s extensive forests are home to the richest variety of plant, animal, and other species in the world. In 1934, the country enacted its first Forest Code; a second was promulgated in 1965; and a third, the current Code, was passed by Congress in 2012,79 after years of drafting and revision and enormous controversy.80 It should be noted that, under Article 24, clause VI, of the Constitution, flora protection is one of the legislative powers shared by the federal government and states. In fact, some states, as previously noted, have enacted their own Forest Codes, like Minas Gerais.81 The 2012 Brazilian Forest Code, in spite of the strong criticism it received from environmental groups and the scientific community for watering down the 1965 Act’s legal constraints on deforestation, can still be considered one of the most far-reaching statutes in the world in that it applies to activity on and management of nearly all privately and publicly owned land in the country. One of the first legal controversies to be decided by courts was about the broad amnesty for unlawful acts committed, and penalties applied under the prior Code’s regime. This leniency argument, supported by the agribusiness sector, was ultimately 75 Article 9 National Environmental Council (CONAMA) Regulation No. 1, de 23 de janeiro de 1986. 76 See generally M. Sabaj Pérez, ‘Timeline of the Controversial Belo Monte Megadam in Brazil’ (14 October 2015) American Scientist, available at: http://www.americanscientist.org/blog/pub/timelineof-the-controversial-belo-monte-megadam-in-brazil (with a timeline showing the history of the project from 1975–2015). 77 e.g. Supremo Tribunal Federal, Medida Cautelar na Reclamação 14.404/DF, Min. Ayres Britto, 27 de agosto de 2012 (reversing a decision by the TRF for the First Circuit that had halted dam construction). 78 In 2011, the Organization of American States’ Inter-American Commission on Human Rights voted to issue ‘precautionary measures’ against the Brazilian government for failure to comply with International Labour Organization Convention 169, which requires free, prior, and informed consent of indigenous peoples prior to approval of activities that will impact them or their territory. See Inter-American Commission on Human Rights, PM 382/10—Indigenous Communities of the Xingu River Basin, Pará, Brazil, summary available at http://www.oas.org/en/iachr/decisions/precautionary.asp. 79 On the legislative history and the description of the backsliding of environmental protections in the bills that led to the 2012 Code, see A. H. Benjamin, ‘A Proteção das Florestas Brasileiras: Ascensão e Queda do Código Florestal: da Medida Provisória 1.511/96 ao Projeto de Conversão do Deputado Moacir Micheletto’ (April/ June 2000) 18 Revista de Direito Ambiental 20–37. 80 Lei No. 12.651, de 25 de maio de 2012 (New Forest Code). 81 Lei No. 20.922, of 2013.

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94 Antonio Herman Benjamin and Nicholas Bryner rejected by the STJ, which ruled that the new Code ‘did not grant amnesty to those that violate environmental laws. Rather, it maintained the illegality of infringements against nature, placing violators subject to administrative proceedings, with a view toward restoring the environment or seeking compensatory damages’.82 The 2012 Code was also intended to apply, without restriction, retroactively. That is, to cases and controversies already active in the judicial system, especially because it contains provisions that are much more flexible as to the allowance of deforestation of native vegetation. The STJ held that ‘the New Forest Code cannot be applied rectroactively to reach a perfected legal act, vested rights or res judicata, nor to reduce, without necessary environmental compensation, the level of protection for fragile ecosystems and endangered species, so as to transgress the untouchable and unabridged constitutional boundary of the State’s “duty” to ensure the preservation and restoration of essential ecological processes’.83 The 1965 and 2012 Codes contain two major requirements—uncommon or unknown in comparative law84—that limit development and clearing of privately owned forests and native vegetation in general: legal reserve (reserva legal) and permanent preservation areas (áreas de preservação permanente). Brazilian courts have interpreted the legal reserve and permanent preservation areas requirements to be propter rem obligations: the duty to maintain the environmental services associated with forest cover ‘run with the land’.85 In other words, new owners can be held liable for failure to comply with the Forest Code, even if the devegetation was done by previous owners or occupiers. Several decisions of the STJ have ruled that a new owner that ‘perpetuates the damage to the environment, committed by others, is himself engaging in illegal conduct’,86 meaning that a traditional showing of causation is not necessary. Even though these major Forest Code requirements predate the Constitution, courts have also interpreted the Code as an expression of the Constitution’s environmental rights provisions and the protection of the integrity of the essential ecological elements of the land.87 From a 2007 decision: ‘[W]hoever acquires real property that has been deforested illegally, or in discord with environmental legislation, receives it with not only its positive attributes and improvements, but also with the applicable environmental burdens, including the duty to recover native vegetation in the Legal Reserve and in Permanent Preservation Areas’. And concluded: ‘[Permanent Preservation Areas] and Legal Reserves represent the central pillars of in situ flora conservation in Brazil, founded in the Forest Code and the National Environmental Policy Act . . . Consequently, obligations thus derived are of a clear propter rem (because of the thing) nature, that is, they adhere to the title and are passed to new owners ad infinitum, regardless of any express or tacit manifestation of acceptance.’88 82 S.T.J., AgRg no REsp 1,313,443/MG, 2d Panel, Relator: Min. Og Fernandes, Segunda Turma, DJe 12 March 2014. 83 AgRg no REsp 1434797/PR, Relator. Ministro Humberto Martins, Segunda Turma, DJe 07 June 2016. 84 With the exception of Paraguay, which borrowed the ‘Reserva Legal’ instrument from Brazil. 85 See Bryner, ‘Brazil’s Green Court’, at 507–13. 86 S.T.J., REsp No. 343.741/PR, 2d Panel, Relator: Min. Franciulli Netto, 07 October 2002 (7 October 2002), at 9. 87 On the role of courts, particularly the STJ, in the interpretation of the 2012 Forest Code, see A. H. Benjamin, ‘Hermenêutica do Novo Código Florestal’ (January/ March 2014) 73 Revista de Direito Ambiental 15–24. 88 S.T.J., REsp No. 2007. 948.921/SP, 2d Panel, Relator: Min. Antonio Herman Benjamin, 23 November 2007 (11 November 2009), at 10.

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Brazil 95 This understanding of the legal character of environmental obligations was expressly incorporated in the 2012 Forest Code, which presents an interesting example, for a civil law country, of later legislation embracing theories and legal constructs developed by courts.89 The STF examined the constitutionality of several components of the 2012 Forest Code. On 28 February 2018, the Court concluded its judgment, recognizing the validity of some provisions and declaring others unconstitutional.90 The STF held unconstitutional the portion of the statute that removed strict protection (as permanent preservation areas) of ‘intermittent headwaters’ (nascentes intermitentes) in place since the 1965 Code. Of the four challenges to the constitutionality of the 2012 Code, three were brought by the Office of the Federal Attorney General, and one by the Socialism and Liberty Party (PSOL), a left-leaning political organization. On the other side, a related action—seeking a declaratory judgment from the Court to uphold the Forest Code—was pursued by the Progressive Party (PP), seen as a mouthpiece for agribusiness interests; unlike the other challengers, this group sought to defend the Act as constitutional in its entirety. The responsibility for the final vote in the case fell on the dean of the STF, Justice Celso de Mello, who stated: ‘issues that involve or support the environment must not be subordinated to economic or corporate-driven interests, especially given the precautionary principle and the idea that “people and their environment ought to have, in their favor, the benefit of the doubt, when there is uncertainty as to whether a given action will cause them harm.” If there is any doubt as to the harmfulness or danger associated with a substance or activity, there can be no other solution but to decide in favor of environmental preservation, as, in his learned opinion, Justice Ricardo Lewandowski, has done, in referring to the concept of “in dubio pro natura” or “in dubio pro securitate.” ’91 Legal Reserve. First, rural landowners must set aside a ‘legal reserve’ (reserva legal) on their property. The legal reserve is an area on which native vegetation must be maintained; the parcel can be sustainably used and managed, even for economic purposes, but cannot be clear cut. In the Amazon region, the legal reserve must cover 80 per cent of rural property.92 In the cerrado savanna, the proportion is 35 per cent, and in other parts of the country, 20 per cent. The STJ has held that the Legal Reserve is necessary for the protection of the environment ‘for present and future generations and in harmony with the social function of property’,93 given that the concept ‘came from a welcome—and necessary—ecological consciousness that has taken hold in society due to . . . the unchecked degradation of the environment brought about by human activities’.94 Landowners are required to specifically designate and register which portions of their property constitute the legal reserve. Under the authority of the 2012 new Forest Code, the federal government has created an online ‘Rural Environmental Registry’ (Cadastro Ambiental Rural (CAR)) and an updated system for this registry.95 However, the 2012 89 See New Forest Code (2012), Art. 2, § 2, which states that the obligations established by the Code ‘are transferred to the successor, of whatever nature, in case of transfer of title or possessory interests in rural real estate parcels’. 90 S.T.F., ADIn Nos. 4901, 4902, 4903, 4937; S.T.F., ADC No. 42. 91 S.T.F., ADIn No. 4901, Opinion of Min. Celso de Mello, 28 February 2018, at 23, available at: http:// www.stf.jus.br/arquivo/cms/noticiaNoticiaStf/anexo/VotoMinistroCMADI4.901DF.pdf. 92 Article 12 New Forest Code. 93 S.T.J., REsp 1.276.114/MG, 2d Panel, Relator: Min. Og Fernandes, DJe 11 October 2016. 94 S.T.J., RMS 18.301/MG, 2d Panel, Relator: Min. João Otávio de Noronha, DJ 03 October 2005, 157. 95 Ibid., Arts. 29–30.

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96 Antonio Herman Benjamin and Nicholas Bryner amendments also ‘grandfathered’ in areas that had been cleared prior to 2008, weakening the law by shielding many landowners from the 1965 Forest Code’s strict requirements.96 Permanent Preservation Areas. In addition to legal reserve areas, the Forest Code designates certain environmentally sensitive areas as permanent preservation areas (áreas de preservação permanente (APPs)), meaning that native vegetation may not be removed or exploited for direct economic use; however, indirect uses such as tourism or harvesting of non-timber products are permitted.97 These areas include riparian buffer zones extending from the banks of rivers, lakes, springs, and other watercourses, as well as mangroves, steep hills and inclines, and the tops of mountains. Protection of Specific Species and Trees. The Forest Code also gives the federal, state, and municipal governments the power to ‘prohibit or limit the cutting of flora species that are rare, endemic, endangered or threatened with extinction, as well as those necessary for the subsistence of traditional populations’.98 This authority may also be used to protect specific trees or to place controls on the operation of forest extractive industries.99 Complementing the general Forest Code, Brazil has a specific Act100 and accompanying decree101 providing more strict protection of the Atlantic Rainforest (Mata Atlântica), a particularly threatened biome along Brazil’s coast—less than 10 per cent of which remains.102 Additional discussion of deforestation and land use is provided in section 5.

4.3.2.4 Protected Areas (2000) In 2000, Congress created by statute the National System of Conservation Units (Sistema Nacional das Unidades de Conservação (SNUC)),103 which classifies various categories of protected areas and lays out a unified system for management.104 SNUC includes publicly owned parks, forests, and reserves, with a varying degree of permitted activities, as well as private natural heritage reserves (RPPNs), which are established under the law on private land, in perpetuity, and may only be used for scientific research or for recreational and educational activities.105

4.3.2.5 Environmental Crimes (1998) Under the Brazilian Penal Code of 1940, still in effect, criminal enforcement did not play an important role in protecting the environment.106 In fact, it was ‘a negligible factor in the

96 Ibid., Art. 3, IV. 97 Ibid., Art. 4. 98 Lei No. 12.651, de 25 de maio de 2012, Art. 70, I. 99 Ibid., Art. 70, II–III. 100 Lei No. 11.428, de 22 de dezembro de 2006. 101 Decreto No. 6.660, de 21 de novembro de 2008. 102 See e.g. Restam 8,5% da vegetação original da Mata Atlântica, diz levantamento, UOL Notícias, 4 June 2013, available at: https://noticias.uol.com.br/meio-ambiente/ultimas-noticias/redacao/2013/06/04/ restam-85-da-vegetacao-original-da-mata-atlantica-diz-levantamento.htm. 103 For a comprehensive analysis of the Act, see A. H. Benjamin, ‘O Regime Brasileiro de Unidades de Conservação’ (January/ March 2001) 21 Revista de Direito Ambiental 27–56. 104 Lei No. 9.985, de 18 de julho de 2000. See also C. Crawford and G. Pignataro, ‘The Insistent (and Unrelenting) Challenges of Protecting Biodiversity in Brazil: Finding “The Law that Sticks” ’ (2007) 39 University of Miami Inter-American Law Review 1, at 29–60. 105 Lei No. 9.985, de 18 de julho de 2000, Art. 21. 106 A. H. Benjamin and A. F. Pinheiro Pedro, ‘Brazil’ in G. Heine, M. Prabhu, and A. Alvazzi del Frate (eds.), Environmental Protection—Potentials and Limits of Criminal Justice: Evaluation of Legal Structures

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Brazil 97 overall efforts to abate pollution in Brazil’,107 with very few court precedents. Therefore, in 1998, Brazil enacted a comprehensive statute that lays out criminal law on environmental matters, including definitions and punishments.108 The Crimes Against the Environment Act stands as a complement to administrative regulation and strict civil liability. It applies both to individuals and legal entities (pessoas jurídicas). Unlike civil liability, however, the application of the Act is based on a showing of culpability.109 The 1998 Act is unique, since it was the first in the world to deal with all (or almost all) environmental crimes and criminal procedure matters in a single statute, as opposed to legislative models adopted by other countries, like France, that preferred to reform their Penal Code by including a chapter on the environment, or the United States, that took a fragmented approach with criminal provisions in its main sectoral statutes. The Act includes five categories of criminal acts: crimes against fauna; crimes against flora; pollution-related crimes; crimes against cultural heritage; and crimes against environmental administration, such as improper granting of permits by environmental authorities, or falsifying documents like environmental permits or forest concessions.110 The Act authorizes punishment for environmental crimes in the form of fines, imprisonment, and/or community service. For legal entities such as corporations, in addition to fines or community service, punishment may include partial or total suspension of corporate activities; temporary restrictions on an establishment, work, or activity; or suspension from receiving government contracts or government subsidies and benefits.111 Commentators have criticized the Environmental Crimes Act for its low penalties, which are frequently out of proportion with the scale of environmental damage caused and do not provide significant deterrence.

4.3.2.6 Additional Environmental Statutes—Water Law, Climate Change, and Solid Waste Brazil has also developed a legislative framework for a variety of other areas within the scope of environmental and natural resources law. In 1997, a new National Water Resources Policy Act112 was enacted, which governs the use and allocation of water.113 With the National Climate Change Policy Act,114 adopted in 2009, Brazil established a framework for informing national action and engagement with the international community on climate issues. At the time, the country announced a voluntary target of 36–38 per cent greenhouse gas (GHG) reductions in 2020 below projected levels. Under the Paris Agreement, this goal was strengthened to 37 per cent in absolute GHG reductions below

(Freiburg im Breisgau: UNICRI and Ed. Iuscrim—Max-Planck Institut für Ausländishes und Internationales Strafrecht, 1997), 134. 107 Findley, ‘Pollution Control in Brazil’, at 51. 108 Lei No. 9.605, de 12 de fevereiro de 1998. 109 Ibid., Art. 2. 110 Ibid., Ch. V (Arts. 29–69). 111 Ibid., Art. 22. 112 Lei No. 9.433, de 8 de janeiro de 1997. 113 For a detailed analysis of water law in Brazil, see Benjamin, Marques, and Tinker, ‘The Water Giant Awakes’. 114 Lei No. 12.187, de 29 de dezembro de 2009.

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98 Antonio Herman Benjamin and Nicholas Bryner 2005 levels by 2025.115 Brazil’s GHG emissions profile differs significantly from other countries: a substantial proportion come from land use changes, even though deforestation rates have dropped sharply below historical highs in the 1990s and 2000s (with some rebound in the past few years due, at least in part, to the weakening of the Forest Code).116 Additionally, the country has relatively low GHG emissions from the transportation sector due to the widespread use of sugarcane-based ethanol. In 2010, Brazil approved the National Solid Waste Act,117 which calls for national, state, regional, and municipal solid waste management planning. The Act is also designed to place certain responsibilities on waste generators, and designates a specific chapter on hazardous waste regulation. In sum, Brazil’s legal framework has developed in different phases, from the colonial period up to the present. During the 1980s, modern environmental policy and law took shape, now building on the Constitution of 1988 to include additional statutory and regulatory authority, implemented by all branches of government and enforced by state and private actors.

4.4 Implementation: The Critical Challenge Brazil has a sophisticated network of executive and administrative agencies charged with implementing environmental law. Enforcement also relies on the country’s strong and independent Public Prosecutors (Ministério Publico) at federal and state levels, with the support of the judicial branch.118 These institutions also face great obstacles and challenges in promoting compliance and enforcement119—essential elements of environmental rule of law.120 Agencies and prosecutors have limited resources that are not distributed evenly throughout the country, making enforcement difficult in some remote areas where illegal deforestation or other violations may occur. Further, corruption in management and oversight, dilatory tactics in litigation, and institutional inertia can make it difficult for the law to ‘stick’ as intended.121 115 Federative Republic of Brazil, Intended Nationally Determined Contribution (2015), available at: http://www4.unfccc.int/submissions/INDC/Published%20Documents/Brazil/1/BRAZIL%20iNDC%20 english%20FINAL.pdf. 116 See H. Tabuchi, C. Rigby, and J. White, ‘Amazon Deforestation, Once Tamed, Comes Roaring Back’, New York Times, 24 February 2017, available at: https://www.nytimes.com/2017/02/24/business/ energy-environment/deforestation-brazil-bolivia-south-america.html. 117 Lei No. 12.305, de 2 de agosto de 2010. 118 See A. H. de Vasconcelos e Benjamin, ‘A Implementação da Legislação Ambiental: O Papel do Ministério Público’ (1993) 55 Justitia 75, at 76. 119 For a discussion on the challenges for environmental compliance and enforcement in Brazil, see A. H. Benjamin, ‘O Estado Teatral e a Implementação do Direito Ambiental’ (2010) 1 Direito, Água e Vida 335–66. Available at: http://bdjur.stj.jus.br/dspace/handle/2011/30604. 120 See IUCN World Declaration on the Environmental Rule of Law, Apr. 29, 2016, available at http:// web.unep.org/environmentalgovernance/erl/iucn-world-declaration-environmental-rule-law. 121 See generally Crawford and Pignataro, ‘The Insistent (and Unrelenting) Challenges of Protecting Biodiversity in Brazil’.

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Brazil 99

4.4.1 Executive Branch and Administrative Agencies The executive and administrative implementation framework for environmental law in Brazil includes the Ministry of Environment, as well as a variety of related federal, state, and municipal agencies. The precursor to today’s Ministry of Environment was created during Brazil’s military regime, as the Special Secretariat on the Environment (SEMA) within the Ministry of Interior. The Ministry was organized as a stand-alone government department in 1985, pulling together the responsibility of the previous Secretariat and the National Council on the Environment (CONAMA) that had been established in the National Environmental Policy Act four years earlier.122 CONAMA plays a significant role in regulating the EIA process and setting applicable standards and criteria for environmental permits, although its influence has waned in recent years as a consequence of vocal criticism from industrial and agribusiness interests, which complained that the Council was enacting regulations that should be the domain of Congress. These views were reflected in the 2012 Forest Code, which almost completely ignored CONAMA, instead transferring some of its original responsibilities to the Environmental Councils of the States (CONSEMAs123) or to the heads of the Executive branches of governments. Complementary Act 140 also weakened CONAMA by establishing a new decision-making body, a ‘Tripartite National Committee’,124 ‘composed, equally, of representatives from the Executive Branches of the federal government, the states and Federal District, and municipalities’.125 The Minister of the Environment serves as Chair of CONAMA. Members of the Council come from five different sectors, representing federal agencies, state agencies, municipal agencies, the private sector, and civil society organizations.126 Federal administrative enforcement, oversight, and management of the country’s environmental laws are carried out largely by independent agencies. Two are described in greater detail here: the Brazilian Institute of Environment and Renewable Natural Resources (abbreviated as IBAMA), and the Chico Mendes Institute of Biodiversity Conservation (ICMBio). IBAMA is an independent executive agency, created by statute in 1989.127 It has three major responsibilities: I exercise the power of environmental policing; II carry out acts under national environmental policies attributed to the federal government, related to environmental permitting, control of environmental quality, the authorization of natural resource use, and environmental enforcement, monitoring and control, subject to guidelines issued by the Ministry of Environment; and III carry out supplemental actions under federal authority, in conformance with environmental legislation in force.128 122 Ministry of Environment of Brazil, Histórico Institucional, available at: http://www.mma.gov.br/ institucional/hist%C3%B3rico-institucional. 123 See e.g. Art. 61-A, § 14. 124 Art. 4, III. 125 Art. 4, § 2. 126 Ministry of Environment of Brazil, O que é o CONAMA?, available at: http://www.mma.gov.br/ port/conama/. 127 Lei No. 7.735, de 22 de fevereiro de 1989. 128 Ibid., Art. 2 (as amended).

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100 Antonio Herman Benjamin and Nicholas Bryner IBAMA’s environmental enforcement activities are divided by subject matter among v arious departments within the agency.129 Enforcement is an enormous undertaking in a vast country the size of Brazil; policing of illegal deforestation is a particularly critical challenge in remote areas of the Amazon.130 The 2011 Complementary Act 140, as discussed previously (section 4.2.1.2), significantly reduced IBAMA’s environmental policing powers. However, the STJ has mitigated the changes, holding in several precedents that the agency has kept its ‘oversight activity’ even in situations in which ‘the subject is located in an area in which the authority for licensing rests with the municipality or the state’.131 ICMBio was carved out of IBAMA in 2007 as Brazil’s protected areas management agency.132 The Institute has an independent budget and administrative structure, but like IBAMA is linked to the Ministry of Environment. The 2007 statute transferred to ICMBio the authority to implement applicable federal law with regard to protected areas, and to manage them, including co-extensive policing responsibilities with IBAMA to enforce the law.133 As of the end of 2015, ICMBio manages a total of 320 federal conservation ‘units’, covering some 76 million hectares.134

4.4.2 Prosecutors (Ministério Público) In Brazil, the Ministério Público (MP) enjoys special status as an independent institution.135 The original model for the Office of the Attorney General is based on the French system, but has developed its own distinctive characteristics in Brazil. Unlike in other countries, such as the United States, where the Attorney General represents both the government in court and the public interest in prosecuting federal enforcement cases, in Brazil, these two functions are distinct: the public prosecutors, led by the Procurador Geral, represent the public interest, while the Advocacia-Geral da União (Solicitor General) acts as attorney for the federal government. Although the head of the federal Ministério Público is appointed by the President (from among career members of the institution), the office operates independently from the executive, legislative, and judicial branches, with autonomy over its administration and budget 129 IBAMA, O que é fiscalização ambiental, available at: http://www.ibama.gov.br/index.php?option= com_content&view=article&id=825&Itemid=748#oquee. 130 See S. Romero, ‘Special Ops with a Studious Bent Fight Destruction of Brazil’s Amazon’, New York Times, 6 April 2017, available at: https://www.nytimes.com/2017/04/06/world/americas/special-opswith-a-studious-bent-fight-destruction-of-brazils-amazon.html?_r=0. 131 S.T.J., AgRg no AREsp 739.253/SC, 2d Panel, Relator: Min. Humberto Martins, DJe 14.09.2015. 132 Lei No. 11.516, de 28 de agosto de 2007. 133 Ibid., Art. 1. 134 The total of 320 conservation unis includes seventy-one national parks, sixty-five national forests, sixty-two extractive reserves, thirty-two environmental protection areas, thirty-two ecological stations, thirty biological reserves, sixteen areas of ecological interest, seven wildlife refuges, three natural monuments, and two sustainable development reserves. See Instituto Chico Mendes de Conservação da Biodiversidade, Relatório de Gestão Exercício 2015, at 10, available at: http://www.icmbio.gov.br/ acessoainformacao/images/stories/relatorios/Relatorio_de_Gestao_ICMBio_2015-FINAL.pdf. 135 See Benjamin, ‘A Implementação da Legislação Ambiental’; Nicholas S. Bryner, ‘Public Intervenors and Public Funding in Environmental Decision Making’ in L. Paddock, R. Glicksman, and N. Bryner (eds.), Decision Making in Environmental Law (Cheltenham: Edward Elgar Publishing, Elgar Encyclopedia of Environmental Law vol. 2, 2016), 430–40. For a more thorough examination of the role of Brazil’s public prosecutors in environmental law, see McAllister, Making Law Matter.

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Brazil 101 guaranteed in the Constitution of 1988.136 Prosecutors are among the best qualified—and highest paid—members of the legal profession: they are admitted via a public service exam and gain life tenure in a prestigious career, subject only to removal by judicial proceeding. Independence and a robust budget have allowed the public prosecutors to play a significant role in safeguarding the public interest. The environmental law revolution of the 1980s gave the Ministério Público a specific mandate to defend the environment.137 As noted above in section 4.3.1, the Public Civil Action Act in 1985 granted prosecutors (and others) the authority to bring a civil action to redress harms caused to the environment. The Constitution likewise assigned to the Ministério Publico the responsibility to carry out ‘civil investigations and public civil actions, for the protection of the public and social patrimony, the environment, and other diffuse and collective interests’ (inquérito civil).138 As a matter of practice, most environmental public interest litigation is brought by the prosecutors, rather than by civil society organizations as would be typical in many other countries.139

4.4.3 Judiciary The full process of compliance and enforcement in environmental law cannot be complete without the role of the judiciary. Independent judges are necessary for interpreting the law and applying it to the facts of a case.140

4.4.3.1 Basic Judicial Structure of Brazil Brazil has both federal and state courts. In the federal justice system, there are three levels: courts of first instance, five regional courts of appeals, and national-level courts. Of particular importance for environmental law, the National High Court, or Superior Tribunal de Justiça (STJ), has jurisdiction to decide matters involving federal law as the court of last resort on ‘special appeal’ from the federal regional courts of appeals or from the states’ supreme courts.141 The STF has jurisdiction to hear ‘extraordinary appeals’ of judicial decisions

136 Constitution, Art. 127, §§ 2, 3. 137 In his groundbreaking art