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

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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 article, and based only on the earliest signs of a phenomenon, which were, at most, only beginning to appear, Roger W. Findley, even before the adoption of the 1988 Constitution, correctly predicted the central role that environmental public prosecutors would later play in the enforcement (and also the design) of Brazilian environmental law: ‘It is clear that the Ministério Público—a relatively well-funded, nonpolitical group of career lawyers with substantial investigative powers and a strong commitment to the public interest—can raise the stakes substantially in the battle against pollution’ (Findley, ‘Pollution Control in Brazil’, at 66–7). 138 Article 129 Constitution. 139 State-level prosecutors have created additional innovations. e.g. the state of São Paulo established an Environmental Prosecution Support Center for training and assistance. See McAllister, Making Law Matter. The State of Minas Gerais, as noted earlier, based on an idea that appeared first in São Paulo, has developed an enforcement system of prosecutors organized by drainage basin or watershed (bacias ou sub-bacias hidrográficas), reflecting the influence of hydrology on how environmental harms in one area may interact with another. See Regulation No. 17 (2009) of the Attorney General of the State of Minas Gerais, available at: http://www-antigo.mpmg.mp.br/portal/public/interno/arquivo/id/13128. 140 A. H. Benjamin, ‘We, the Judges, and the Environment’ (2012) 29 Pace Environmental Law Review 582. 141 Article 105, III Constitution.

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102 Antonio Herman Benjamin and Nicholas Bryner that involve constitutional law, and also has original jurisdiction to hear challenges to the constitutionality of federal and state laws and acts.142 Under the Constitution of 1988, Brazil’s judiciary handles an immense case load. The STJ alone issues hundreds of thousands of decisions per year.143 The Constitution and legal framework place significant weight on allowing access to justice. However, inequalities in society and asymmetry in the availability of financial resources to extend litigation mean that the result frequently falls short of the ideal. Litigants have remarkably strong rights (and multiple available ways) to appeal judicial decisions. This ensures that decisions issued by single judges can be reviewed by panels of higher court judges; however, it also introduces opportunities for multi-year delays in the judicial process.144 Judges traditionally did not follow the principle of stare decisis; judicial decisions are generally not binding on lower courts or for future cases. However, the situation changed dramatically in recent years for the STF and the STJ. A constitutional amendment in 2004 provided the STF with the ability to create, by two-thirds vote, a form of binding precedent called a súmula vinculante.145 The súmula vinculante can take the form of a short, general statement of a legal rule or interpretation, making it stronger than common law precedents because it applies generally (e.g. it cannot be distinguished by a showing of different facts in a subsequent case).146 The STJ may also issue súmulas to govern subsequent decisions by the court. In addition, the STJ has the ability to use the recurso repetitivo (repetitive appeal) process, which joins together a potentially massive number of cases with the same core legal issues at stake, judged simultaneously, with the decision binding on lower courts. These important innovations were strengthened by the new Civil Procedure Code of 2015. It is not uncommon, in environmental suits against the state, for the defendant to argue that judicial intervention would violate the separation of powers. The STF and STJ have repeatedly and consistently rejected such arguments. The Constitutional Court has held in a number of precedents that governments have the duty to protect ‘the ecologically balanced environment’ and, as a result, ‘the Judicial Power, in exceptional circumstances, may require that the executive branch take specific measures to safeguard constitutionally recognized essential rights, without running afoul of the principle of separation of powers’.147

4.4.3.2 Environmental Jurisprudence and the STJ Courts in Brazil have developed a significant body of jurisprudence in applying and expanding the Constitution’s environmental provisions, as well as the environmental statutes and regulations described throughout this chapter.148 The STJ has decided a great number of 142 Article 102 Constitution. 143 The STJ reported 470,722 judgments in 2016. See Superior Tribunal de Justiça, Relatório Estatístico 2016, at 8, available at: http://www.stj.jus.br/webstj/Processo/Boletim/verpagina.asp?vPag=0&vSeq=292. 144 See e.g. A. Zimmermann, ‘How Brazilian Judges Undermine the Rule of Law: A Critical Appraisal’ (2008) 11 International Trade & Business Law Review 179, at 195–96, 209. 145 Constitution, Art. 103-A. 146 See e.g. M. A. Jardim de Santa Cruz Oliveira and N. Garoupa, ‘Stare Decisis and Certiorari Arrive to Brazil: A Comparative Law and Economics Approach’ (2012) 26 Emory International Law Review 555. 147 S.T.F., RE 417.408 AgR/RJ, 1st Panel, Relator: Min. Dias Toffoli, DJe 26 April 2012. 148 See Bryner, ‘Brazil’s Green Court’; Bryner, ‘Public Interests and Private Land’.

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Brazil 103 cases that interpret federal law in light of the Constitution and the right to an ecologically balanced environment. A few important examples of this reinterpretation, ushered by constitutional changes, follow below. First, despite what was originally feared, the STJ refused to weaken the National Environmental Policy Act’s strict liability standard for environmental damage. It stated in that regard that the adoption of strict civil liability ‘signified a real advance in combating environmental devastation, given that, under this system, what is taken into account is only the occurrence of a harmful result to humans or the environment, and not, as a subjective matter, the conduct of the responsible party. Thus, in order to ensure compliance with the obligation to restore damage, it is sufficient to show simply that there is a causal link between the defendant’s act or omission and the environmental harm suffered’.149 Second, the STJ has contributed to a revolution in the standard for showing causation in a claim of strict liability for environmental damage. In a case involving the unlawful draining and filling of a mangrove, the court held that a defendant could be liable for causing harm to the environment, even when the location was not pristine and had already been degraded by others.150 The court reasoned: For purposes of determining causation in the case of environmental damage, the following are grouped together as equivalent: anyone who acts, who does not act when she should, who allows the action, who does not care that others act, who finances an action performed by others, and who benefits when others act.151

In other words, traditional notions of causation will not be applied in a manner that exempts actors that pollute from environmental laws. Similarly, the STJ, as seen previously, has deemed landowners who maintain deforested property, in violation of the legal reserve, permanent preservation areas and other requirements of the Forest Code, to have caused environmental damage, even where it cannot be proved that the deforestation took place while the current owner was in possession of the property.152 From a 2007 STJ opinion: Whoever benefits from, aggravates, or continues environmental degradation caused by others is no less a cause of degradation. For this reason, the law charges the new owner with the responsibility to repair the misdeeds of her predecessor. This holds for deforestation, water pollution and soil erosion.153

The STJ has also held that the fundamental right to an ecologically balanced environment ‘is held among indispensable rights,’ characterized by its ‘inalienable nature, given that it

149 S.T.J., REsp 578.797/RS, 1st Panel, Relator: Min. Luiz Fux DJ 20 September 2004, 196. 150 S.T.J., REsp No. 650.728, 2d Panel, Relator: Min. Herman Benjamin, 23 October 2007, DJe 02 December 2009; see Bryner, ‘Brazil’s Green Court’, at 499–504. 151 S.T.J., REsp No. 650.728, 2d Panel, Relator: Min. Herman Benjamin, 23 October 2007, DJe 02 December 2009, at 14–15. 152 See e.g. S.T.J., REsp No. 222.349/PR, 1st Panel, Relator: Min. José Delgado, 23 March 2000, DJ 02 May 2000. 153 S.T.J., REsp No. 948.921/SP, 2d Panel, Relator: Min. Herman Benjamin, 23 October 2007, DJe 11 November 2009, at 11.

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104 Antonio Herman Benjamin and Nicholas Bryner protects a public use good’.154 It further concluded that there can be ‘no vested right to pollute or degrade the environment’155 and that ‘[the] obligation of restoration or recovery of the environment is imprescriptible’,156 or in other words, that statutes of limitations do not apply (imprescritibilidade) for environmental damage. Third, the STJ’s jurisprudence on the ecological function of property, described above,157 illustrates how the Constitution’s environmental provisions call for a reexamination not only of the boundaries of other recognized rights, but also of earlier federal laws. Judicial application of constitutional environmental norms means that interpretation of the Forest Code, Civil Code158 and other major statutes must be consistent with the right to an ecologically balanced environment. Fourth, the STJ has played a key role as an institution in the development of environmental law through the articulation and application of creative new environmental law principles, such as the ecological function of property, the propter rem nature of environmental obligations, and the principle in dubio pro natura—when in doubt, to decide in favour of the environment. The Court has applied this principle to establish a preference in deciding ambiguous cases in a manner that best provides for environmental conservation.159

4.5 Law in Action: Deforestation and Land Use Change in the Amazon In Brazil, deforestation in the Amazon, but also in the Cerrado savannah, presents tremendous challenges for environmental law. The geographical mismatch between hydrological and political boundaries makes ecosystem management and planning difficult. The remoteness of the territory has long made governance complicated and enforcement uneven. Deforestation, particularly in the Amazon region, illustrates many of the themes in Brazilian environmental law, from the constitutional promise of environmental protection and the structure of the federal/state relationship, to the role of government agencies and institutions, prosecutors, and judges; and the weaknesses and capture of many state and municipal environmental agencies. The story of law, policy, and enforcement in the region includes disputes over land tenure and ownership, the treatment of indigenous peoples and the recognition of their traditional lands, and tension between economic growth

154 S.T.J., REsp 1.394.025/MS, 2d Panel, Relatora: Min. Eliana Calmon, DJe 18 October 2013. 155 S.T.J., REsp 1.222.723/SC, 2d Panel, Relator: Min. Mauro Campbell Marques, DJe 17 November 2011. 156 S.T.J., REsp 647.493/SC, 2d Panel, Relator: Min. João Otávio de Noronha DJ 22 October 2007, 233. 157 See section 4.2.2.2. 158 The 2002 Civil Code, which replaced the previous of 1916, expressly recognizes environmental protection as a limit to property rights: ‘The right to property must be exercised consistent with its economic and social ends and such that—in conformity with applicable law—flora, fauna, and natural beauty; ecological balance, historical and artistic heritage are preserved, and that pollution of the air and water are avoided’ (Art. 1228, § 1). 159 See e.g. S.T.J., REsp No. 1.367.923/RJ, 2d Panel, Relator: Min. Humberto Martins, 27 August 2013, DJe 06 September 2013; S.T.J., REsp No. 1.145.083/MG, 2d Panel, Relator: Min. Herman Benjamin, 27 September 2011, DJe 04 September 2012.

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Brazil 105 (timber exploitation, agriculture, cattle ranching, mining, oil and gas exploration, road and hydroelectric constructions) and conservation. Brazil’s deforestation rate peaked in the 1990s and early 2000s, with a level as high as 29,000 square kilometres in 1995.160 Since 2004, it has declined sharply, down to the range of 4,000–7,000 square kilometres per year from 2009–16.161 This represents the most dramatic reduction of greenhouse gas emissions by any country in the world, relative to its high baseline.162 Experts cite a variety of reasons for this drop, including better monitoring via improved satellite technology; increased enforcement of the Forest Code and other laws; creation and management of protected areas; changes in commodity prices that made deforestation less profitable; spread of better ranching and farming practices that made more efficient use of already-cleared land; and international pressure, including supply chain changes supported by consumers and image-conscious corporations. However, more recent trends are less positive. Other countries in the region, including Peru, Ecuador, and Bolivia, have seen deforestation accelerate since 2001.163 Perhaps more troubling, Brazil’s deforestation has ticked upward since 2012. Massive corruption scandals in the country have caused great political and economic upheaval in every part of the government, and budgetary resources have been cut. Political priorities among those in control of important federal ministries have turned away from environmental protection, at first gradually under the Workers’ Party that controlled the presidency from 2003 to 2016, and then sharply after the former President, Dilma Rousseff, was removed from office and replaced by President Michel Temer. In June 2017, during President Temer’s visit to Norway, by far the largest international donor for combating deforestation in the country, the Norwegian government announced it would cut back its incentive payments to Brazil’s Amazon Fund by nearly two-thirds, from approximately US$100 million to $35 million for 2017, due to the recent deforestation increases.164 Article 225 of Brazil’s Constitution specifically lists the Amazon rainforest as ‘national patrimony’, requiring that its use be done ‘as established by law, under conditions that ensure the preservation of the environment, including with regard to the use of natural resources’.165 This is accomplished, in part, by the application of the Forest Code, which requires private landowners in the Amazon to maintain native vegetation on ecologically sensitive areas (permanent preservation areas) and 80 per cent of their property as a legal reserve.166 Of particular importance in the Amazon region as well is the relationship between the government and indigenous peoples. The Constitution recognizes the ‘social organization, customs, languages, beliefs and traditions, and original rights over lands traditionally occupied’ by indigenous peoples, with the responsibility given to the federal government to demarcate and protect indigenous lands. Brazil is also a party to Convention 169 of the 160 R. Butler, Calculating Deforestation Figures for the Amazon, Mongabay, available at: https://rainforests. mongabay.com/amazon/deforestation_calculations.html (last updated 26 January 2017). 161 Ibid. 162 See e.g. Brian Clark Howard, ‘Brazil Lead World in Reducing Carbon Emissions by Slashing Deforestation’ National Geographic, 5 June 2014, available at: http://news.nationalgeographic.com/ news/2014/06/140605-brazil-deforestation-carbon-emissions-environment/. 163 Butler, Calculating Deforestation Figures for the Amazon. 164 A. Doyle, ‘Norway Cuts Forest Protection Payments to Brazil to $35 million’, Reuters, 23 June 2017, available at: http://www.reuters.com/article/us-norway-brazil-amazon-idUSKBN19E1R2. 165 Article 225, para. 4 Constitution. 166 See section 4.3.2.3.

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106 Antonio Herman Benjamin and Nicholas Bryner International Labour Organization (ILO), which requires state respect for the rights of indigenous peoples in a variety of contexts—including consultation and free, prior, and informed consent for decisions that affect them and their territory.167 However, in July 2017 the federal government reinstated a legal stance that makes indigenous land demarcation much more difficult; the Solicitor General’s opinion, based on a precedent of the STF, interprets the law to provide only for indigenous rights over land that they occupied at the time of the adoption of the Constitution in 1988, precluding claims over territory from which indigenous groups had been driven out prior to that date.168 Enforcement of environmental laws in the Amazon continues to be hampered by the threat of violence as well. According to studies by the NGO, Global Witness, Brazil has been, for five consecutive years from 2012–16, the country with the highest number of killings of environmental and land rights advocates.169 Nearly all of the violence—and the highest rates of deforestation—occur around the receding eastern and southern edges of the forest, in the states of Rondônia, Mato Grosso, and Pará (the so-call ‘arc of deforestation’), where indigenous communities and other people clash with the grileiros who seek to usurp land rights.170

4.6 Conclusion Brazil has developed an extensive environmental law framework, in its Constitution, statutes, and regulations. The Constitution guarantees a fundamental human right to an ecologically balanced environment, and establishes environmental principles in property law and the protection of essential ecological processes in the country’s major biomes. Executive branch agencies, prosecutors, and the judiciary all play a significant role in implementing environmental law. Brazil has had major successes in slowing deforestation from its highest historical levels, and has pioneered advances in biofuels for transportation. However, air pollution, poor sanitation, and other urban environmental problems are a critical threat to public health for millions in the country, and deforestation has apparently begun to rise again as pressures mount for the development of forested lands for cattle ranching, agriculture, mining, hydroelectric projects, and tourism. The assessment by Professor Roger W. Findley, made in his seminal article, before the enactment of the 1988 Constitution and the 1992 Earth Summit in Rio de Janeiro, unfortunately is still the country’s reality, both in terms of pollution control and the protection of biodiversity: 167 International Labour Organization, Convention No. 169, Convention concerning Indigenous and Tribal Peoples in Independent Countries (27 June 1989), available at: http://www.ilo.org/dyn/normlex/en/ f?p=NORMLEXPUB:12100:0::NO:12100:P12100_INSTRUMENT_ID:312314:NO. 168 Advocacia Geral da União, Parecer [Opinion] No. GMF-05, 19 July 2017, available at: http://www. agu.gov.br/page/atos/detalhe/idato/1552758. See e.g. R. Valente and J. Wiziack, Temer assina parecer que poder para demarcação de terras indígenas, Folha de São Paulo, 19 July 2017, available at: http://www1. folha.uol.com.br/poder/2017/07/1902688-temer-assina-parecer-que-pode-parar-demarcacao-de-terrasindigenas.shtml. 169 This includes fifty activists slain in 2015 and forty-nine in 2016. See e.g. A. Rossi, ‘Amazônia desmatada concentra 9 em cada 10 mortes de ativistas por conflito no campo’, BBC Brasil, 26 July 2017, available at: http://www.bbc.com/portuguese/brasil-40615688. 170 Ibid.

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Brazil 107 In general, administrative enforcement of environmental standards appears to have been rather lax. This can be attributed partly to gaps and uncertainties in legal standards, to shortages of enforcement personnel and resources . . . Nevertheless, the primary factor has been a lack of political will to require major abatement expenditures except when the health of large numbers of people is clearly and urgently threatened.171

Looking forward to the future, all of Brazil’s institutions, including the judiciary, need greater capacity, commitment of resources and, especially, integrity and strong political will to ensure the fulfillment of constitutional rights and to promote the environmental rule of law—and also to prevent backsliding or rollbacks of protections in the existing legal system due to pressure from vested interests in Congress and State Assemblies.

4.7 Selected Bibliography in English Benjamin, A. H., ‘We, the Judges, and the Environment’ (2012) 29 Pace Environmental Law Review 582. Benjamin, A. H., C. Lima Marques, and C. Tinker, ‘The Water Giant Awakes: An Overview of Water Law in Brazil’ (2005) 83 Texas Law Review 2185. Bryner, N. S., ‘Brazil’s Green Court: Environmental Law in the Superior Tribunal de Justiça’ (2012) 29 Pace Environmental Law Review 470. Bryner, N. S., ‘Public Interests and Private Land: The Ecological Function of Property in Brazil’ (2016) 34 Virginia Environmental Law Journal 122. Crawford, C. 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 29. Findley, R. W., ‘Pollution Control in Brazil’ (1988) 15 Ecology Law Quarterly 1. McAllister, L., Making Law Matter: Environmental and Legal Institutions in Brazil (Stanford: Stanford University Press, 2008).

171 Findley, ‘Pollution Control in Brazil’, at 30.

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chapter 5

Ca na da Stepan Wood

5.1 Introduction

109

5.2 Devolution of Powers: Coordination and Chaos in a Polycentric System

109

5.2.1 Decolonizing Environmental Law: Indigenous Environmental Jurisdiction 5.2.2 Compromise Before Confrontation: Canadian Environmental Federalism 5.2.3 Flirting with Subsidiarity: Municipal Environmental Powers 5.2.4 Citizens and the State: Environmental Rights and Electoral Politics

109 111 113 113

5.3 Environmental Regulatory Models: A Limited Imagination

114

5.4 Implementation Framework: Encouraging Development(s)

123

5.5 Conclusion

126

5.6 Acknowledgements

127

5.7 Selected Bibliography

127

5.3.1 5.3.2 5.3.3 5.3.4 5.3.5

Command Regulation Information-based Regulation Economic Instruments Civil Litigation Environmental Principles 5.3.5.1 The Polluter-Pays Principle 5.3.5.2 The Precautionary Principle 5.3.5.3 Sustainable Development 5.3.5.4 Environmental Justice

5.4.1 Institutions 5.4.2 Public Enforcement 5.4.3 Private Enforcement

114 115 117 118 120 120 120 121 122

123 124 125

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canada 109

5.1 Introduction Canada is not the beacon of environmental leadership many imagine. It has fallen behind on many fronts and was never a leader in others. That said, Canadian environmental law has some noteworthy features. This chapter surveys key features of the allocation of environmental powers in Canada, the choice of regulatory models, and the role of e nvironmental principles. It puts these features into the context of reconciliation between settler colonial and indigenous societies, which is amongst the most pressing challenges and the most exciting opportunities facing Canadian environmental law today.

5.2 Devolution of Powers: Coordination and Chaos in a Polycentric System Canada is a federal state with ten provinces and three territories. Until recently the main question related to devolution of powers in Canadian environmental law was the division of legislative powers between the federal and provincial governments, but other issues are increasingly important including municipal environmental powers and individual environmental rights. Before delving into these questions I address an issue that arises from the historical and continuing presence of indigenous nations throughout what is now called Canada.

5.2.1 Decolonizing Environmental Law: Indigenous Environmental Jurisdiction Canada is a settler colonial society built upon the territories of indigenous peoples who had their own institutions and laws for millennia before European contact. The settler legal system actively repressed indigenous legal systems and the assertion of indigenous people’s rights, including by systematically breaking treaty promises; depriving indigenous peoples of their lands and resources; imposing a colonial system of reserves and governance that deprived First Nations of the ‘essential powers and capacities to enable them to be functioning governments’;1 criminalizing indigenous institutions; forcibly resettling indigenous communities; prohibiting indigenous people from raising money or hiring lawyers for land claims; removing generations of indigenous children to residential schools; and implementing 1 Indian and Northern Affairs Canada, Ministerial Transition Book: November 2015, available at: https://www.aadnc-aandc.gc.ca/eng/1450197908882/1450197959844, at fn. 4.

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110 stepan wood other policies that are now recognized as genocidal.2 Important elements of this system either continue today or are very recent memories. This situation began to change in 1973, when the Supreme Court of Canada acknowledged that aboriginal title to land might still exist.3 Indigenous peoples’ aboriginal and treaty rights were subsequently entrenched constitutionally in 1982.4 These developments opened a new era of treaty-making in which indigenous nations with outstanding land claims have concluded more than two dozen comprehensive land claims agreements (CLCAs). CLCAs typically give the indigenous nations money, fee simple title to a small portion of their traditional territories, participation in decision-making related to environment and resources, and limited powers of self-government over internal issues. To the extent that these agreements recognize indigenous governmental authority, it is generally highly circumscribed and subordinate to settler law. Indigenous self-government is given somewhat greater expression in Canada’s North via resource co-management regimes and, in Nunavut, via the institutions of public government.5 The main question for the settler legal system in this context has been to what extent aboriginal rights limit settler governments’ power to govern as they see fit. The main answer has been that the Crown has a duty to consult indigenous peoples and, if appropriate, accommodate their interests when it contemplates conduct that might infringe their rights.6 This approach has two important limitations. First, so long as the process of consultation and accommodation is considered adequate, the outcome may still adversely affect indigenous people’s rights without their consent.7 Second, this approach treats indigenous peoples primarily as rights-holders to be consulted rather than as law-makers in their own right. The question of indigenous nations’ jurisdiction to govern—for example, by authorizing, prohibiting, or regulating resource exploitation or legislating to protect endangered species or sacred spaces—hardly figures in settler environmental law,8 although indigenous nations across Canada have always asserted such jurisdiction.9 This blindness to the question of indigenous environmental jurisdiction is increasingly untenable as the settler legal system begins to pursue a nation-to-nation relationship with 2 Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: Truth and Reconciliation Commission of Canada, 2015), 1. 3 Calder v British Columbia (Attorney General) [1973] SCR 313. 4 Constitution Act, 1982, being Sch. B to the Canada Act 1982 (UK), c. 11, s. 35. 5 The Nunavut Land Claims Agreement is unique in pursuing indigenous self-government through public governmental institutions that represent all residents of the territory, not just indigenous people. Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in Right of Canada (25 May 1993), available at: http://nlca.tunngavik.com/. 6 Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73. 7 The stronger and more definitive the right, the greater the burden to justify its infringement; but the Crown may even justify infringing proven aboriginal title or rights without consent. See Tsilhqot’in Nation v British Columbia, 2014 SCC 44. 8 A notable exception was the Berger Inquiry into the proposed MacKenzie Valley pipeline in the 1970s, which remains a gold standard for consultation with First Nations and recognition of their inherent right of self-government. See Thomas R. Berger, Northern Frontier, Northern Homeland: The Report of the Mackenzie Valley Pipeline Inquiry (Ottawa: Supply and Services Canada, 1977). 9 e.g. General Assembly of the Tsilhqot’in First Nation, Declaration of Sovereignty (17 April 1998), available at: http://www.tsilhqotin.ca/PDFs/98DeclarationSovereignty.pdf; Musqueam First Nation, Musqueam Declaration (10 June 1976), available at: http://www.musqueam.bc.ca/sites/default/files/musqueam_ declaration.pdf; Delgamuukw v British Columbia [1997] 3 SCR 1010; R. v Marshall [1999] 3 SCR 456.

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canada 111 indigenous peoples based on mutual respect. This move gained momentum in 2014 with the country’s first ever judicial declaration of proven aboriginal title,10 and in 2015 with the final report of the Truth and Reconciliation Commission (TRC).11 The TRC concluded that Canada’s residential school system for indigenous children, which persisted into the 1990s, amounted to cultural genocide.12 It called upon the government of Canada to repudiate concepts used to justify European sovereignty over indigenous peoples and lands, to adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples, to renew or establish treaty relationships based on principles of mutual recognition and respect, and to reconcile indigenous and settler legal orders so that aboriginal peoples are full partners in Confederation.13 The federal government signed the UN Declaration in 2016, but implementation remains uncertain and contested. Decolonizing Canadian law is amongst the most pressing challenges facing the settler legal system today. It entails recognizing indigenous nations as sovereign law-makers.14 For environmental law, key tasks include delineating settler and indigenous governments’ environmental powers; changing settler environmental laws that are inconsistent with this new relationship; identifying indigenous law-makers and laws; managing conflicts between indigenous and settler laws; enhancing indigenous nations’ capacity to make and implement environmental laws; and determining the knowledge of indigenous environmental laws expected of settler environmental lawyers. Canadian governments and businesses are experienced in navigating and managing multiple, overlapping jurisdictions. Indigenous and other scholars have proposed imaginative approaches to polycentric environmental governance that embrace indigenous jurisdiction.15 Many indigenous nations are revitalizing their own constitutional arrangements, governmental institutions, and environmental laws. The decolonization of environmental law represents not just a challenge but an opportunity for indigenous and settler societies.

5.2.2 Compromise Before Confrontation: Canadian Environmental Federalism Canadian environmental federalism demonstrates that a lack of political will can be a bigger obstacle to environmental leadership than constitutional limits are.16 The environment cuts across federal and provincial jurisdiction.17 Provinces have broad environmental 10 Tsilhqot’in Nation v British Columbia, 2014 SCC 44. 11 Truth and Reconciliation Commission, Summary of Final Report. 12 Ibid., at 1–3, 57. 13 Ibid., at 325–7 (Calls to Action #43-7). 14 e.g. T. McCleneghan, ‘Why Should Aboriginal Peoples Exercise Governance Over Environmental Issues?’ (2002) 51 University of New Brunswick Law Journal 211. 15 e.g. J. Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002); J. MacLean, M. Doelle, and C. Tollefson, ‘Polyjural and Polycentric Sustainability Assessment: A Once-in-a-Generation Law Reform Opportunity’ (2016) 30 Journal of Environmental Law & Practice 36; P. Macklem and D. Sanderson, From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights (Toronto: University of Toronto Press, 2016); M.-A. Phare et al., Collaborative Consent and British Columbia’s Water: Towards Watershed Co-Governance (Victoria, BC: POLIS Project on Ecological Governance and Centre for Indigenous Environmental Resources, 2017). 16 D. R. Boyd, Unnatural Law (Vancouver: UBC Press, 2003), 260–3. 17 Friends of the Oldman River Society v Canada (Minister of Transport) [1992] 1 SCR 3.

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112 stepan wood jurisdiction except in relation to federal lands, federal works and undertakings, and indigenous people and reserves.18 Federal environmental jurisdiction is piecemeal. The federal government’s exclusive jurisdiction over fisheries supports environmental regulation of a variety of water- and land-based activities.19 Its jurisdiction over navigation also supports environmental regulation.20 Its jurisdiction over federal works and undertakings supports regulation of environmental aspects of major infrastructure including canals, harbours, airports, pipelines, telecommunications, and railways. Its exclusive authority over criminal law supports federal regulation of endangered species, pollution, public health, toxic substances and hazardous products, provided it is backed by prohibitions and penalties.21 Residual federal authority over ‘national concerns’ supports regulation of some environmental issues including marine pollution and ozone depletion, but has been interpreted narrowly to avoid eviscerating provincial jurisdiction.22 The federal government also has the power to tax and spend for environmental purposes.23 Finally, the federal government may conduct environmental impact assessments in relation to any matters within its jurisdiction.24 Valid federal and provincial laws often co-exist on the same subjects—endangered species, chemicals, pesticides, pollution, environmental impact assessment, etc.—with each level regulating aspects within its jurisdiction. Federal law prevails in the event of conflict between valid federal and provincial laws, but the test for conflict is narrow: compliance with both laws must be impossible.25 The fact that a provincial law sets tougher standards or restricts conduct permitted by federal law is insufficient.26 The division of environmental powers is messy but capable of supporting strong federal regulation. A strong federal role can set a regulatory floor, spur upward regulatory competition, and provide multiple layers of protection for vulnerable people and ecosystems. The federal government seldom exercises its full constitutional powers, however. The provinces sometimes exhibit environmental leadership but often favour environmentally harmful activities. Canadian environmental federalism is characterized by downward harmonization and federal deference, punctuated by occasional episodes of competition or unilateral action to strengthen environmental laws in the wake of high-profile environmental crises.27 The most likely explanation for federal and provincial reticence is not constitutional limitations but a lack of political will due to the continuing dominance of resource-based industries.28

18 Constitution Act, 1867, 30 & 31 Vict., c. 3, ss. 92(8), (10), (13), (16), 92A, and 109. 19 Ibid., s. 91(12); Fowler v The Queen [1980] 2 SCR 213; Northwest Falling Contractors Ltd v The Queen [1980] 2 SCR 292. 20 Constitution Act, 1867, s. 91(10). 21 Ibid., s. 91(24); R. v Hydro-Québec [1997] 3 SCR 213. 22 R. v Crown Zellerbach Canada Ltd [1988] 1 SCR 401; Hydro-Québec [1997] 3 SCR 213. 23 Constitution Act, 1867, ss. 91(2A, 3). 24 Friends of the Oldman River Society [1992] 1 SCR 3. 25 Bank of Montreal v Hall [1990] 1 SCR 121; Multiple Access Ltd v McCutcheon [1982] 2 SCR 161. 26 Rothmans, Benson & Hedges Inc. v Saskatchewan, 2005 SCC 13. 27 N. Olewiler, ‘Environmental Policy in Canada: Harmonized at the Bottom?’ in K. Harrison (ed.), Racing to the Bottom? Provincial Interdependence in the Canadian Federation (Vancouver: UBC Press, 2006), 113–55. 28 M. Winfield, ‘An Unimaginative People: Instrument Choice in Canadian Environmental Law and Policy’ (2008) 71 Saskatchewan Law Review 79.

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5.2.3 Flirting with Subsidiarity: Municipal Environmental Powers Canadian experience shows that proactive local governments can promote environmental innovation. Municipalities have no constitutional status in Canada. They have only those powers conferred by provincial law or essential for the effectuation of municipal purposes.29 Yet cities have become some of the boldest environmental law innovators in Canada in such areas as pesticide control, climate change adaptation, and green buildings. A combination of specific environmental powers (e.g. to manage waste, noise, and odours), land use planning powers, business licensing powers, and ‘general welfare’ powers gives Canadian municipalities substantial environmental competence. The Supreme Court of Canada has declared that environmental protection ‘requires action by governments at all levels’30 and upheld a municipal ban on cosmetic pesticide use.31 The main caveat is that municipal measures must be aimed at local issues, not at faraway problems without local causes or consequences.32 Moreover, even if a measure is within municipal powers, it is invalid if it conflicts with valid provincial or federal laws.33 These limitations nevertheless enable municipal environmental leadership. Canadian experience shows that in a multilevel system, a vigorous role for the level of government closest to the people can enhance democratic legitimacy, accommodate varying environmental values, encourage policy experimentation, and put pressure on higher-level governments to act.

5.2.4 Citizens and the State: Environmental Rights and Electoral Politics Enforceable environmental rights and electoral systems that enhance green representation can spur environmental leadership at all levels of government.34 Unfortunately, Canada has a poor record on this front. A substantive right to a healthy environment is found only in Quebec.35 Other provinces’ environmental bills of rights are procedural.36 The federal Charter of Rights and Freedoms contains no explicit environmental rights. Canadian courts have so far refused to extend the Charter to environmental matters, but a class action lawsuit launched in 2018 on behalf of Quebec youth alleging that the federal government’s inaction on climate change violates their rights under the federal and Quebec Charters may pose the first real challenge to this refusal.37 29 R v Sharma [1993] 1 SCR 650. 30 Hydro-Québec [1997] 3 SCR 213. 31 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town), 2001 SCC 40. 32 Shell Canada Products Ltd v Vancouver (City) [1994] 1 SCR 231 (apartheid); Eng v Toronto (City), 2012 ONSC 6818 (shark finning). 33 Spraytech v Hudson, 2001 SCC 40; Croplife Canada v City of Toronto (2005) 75 OR (3d) 357 (CA). 34 D. R. Boyd, The Right to a Healthy Environment: Revitalizing Canada’s Constitution (Vancouver: UBC Press, 2012). 35 Charter of Human Rights and Freedoms, CQLR, c. C-12, s. 46.1. 36 e.g. Ontario Environmental Bill of Rights, SO 1993, c. 28. 37 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). The case

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114 stepan wood Turning to electoral politics, the first-past-the-post electoral system continues to dominate Canadian politics after failed referenda on proportional representation in two provinces38 and a broken campaign promise by the federal government. Evidence from Canada and elsewhere shows that proportional representation,39 constitutional e nvironmental rights,40 and public pressure41 improve environmental laws and outcomes. With this brief survey of some of the key issues surrounding the allocation of environmental powers in mind, I now proceed to consider the structure and content of Canadian environmental law.

5.3 Environmental Regulatory Models: A Limited Imagination Canada was an early leader in such areas as watershed conservation, environmental impact assessment, indigenous land claims agreements, public judicial inquiries, and international environmental cooperation. Yet it has fallen behind.42 Although Canada has experimented to a limited extent with carbon taxes, emissions trading, green energy feed-in tariffs, joint indigenous-settler resource management, and traditional ecological knowledge, Canadian environmental regulators have generally clung to a dichotomous choice between conventional command regulation and voluntary self-regulation while pursuing fiscal restraint and episodes of deregulation.43 This section surveys four of the most important regulatory models in Canada: command regulation, information-based regulation, economic instruments, and civil litigation.

5.3.1 Command Regulation Command regulation dominates Canadian environmental law.44 Performance standards are the most common form of command regulation in Canada, specifying limits or bans on the release of substances, the extraction of resources or the taking of species and allowing regulated actors to decide how to comply. Process standards are less common, prescribing bears similarities to both the Urgenda case in the Netherlands and the Juliana case in the United States. See Environnement Jeunesse, available at: https://enjeu.qc.ca/justice-eng/. 38 Ontario and British Columbia. A repeat referendum on proportional representation was underway in British Columbia at the time of writing, closing 30 November 2018. 39 S. Wood, G. Tanner and B. Richardson, ‘What Ever Happened to Canadian Environmental Law?’ (2010) 37 Ecology Law Quarterly 981. 40 D. R. Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (Vancouver: UBC Press, 2012). 41 K. Harrison, ‘Federal-Provincial Relations and the Environment: Unilateralism, Collaboration, and Rationalization’ in D. VanNijnatten and R. Boardman (eds.), Canadian Environmental Policy: Context and Cases (New York and Oxford: Oxford University Press, 2002). 42 Ibid. 43 Boyd, Unnatural Law, at 248. 44 B. Richardson and S. Wood, ‘Environmental Law for Sustainability’ in B. Richardson and S. Wood (eds.), Environmental Law for Sustainability (Oxford: Hart Publishing, 2006), 1, 4.

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canada 115 the methods actors must use (e.g. specific pollution control, resource extraction, or business management techniques) rather than outcomes to be achieved. Product standards are also common, specifying permitted or prohibited product characteristics including energy efficiency requirements for vehicles, appliances, or homes; renewable fuel portfolio standards; vehicle tailpipe emissions limits; and outright bans of harmful products. Some standards are set by reference to the state of the receiving environment, prescribing maximum allowed ambient pollution concentrations or environmental effects to be avoided or achieved. Some of the most important Canadian environmental standards are vague and qualitative, such as bans on discharges that cause an ‘adverse effect’.45 Standards are made legally binding via a combination of generally applicable regulations, sector-wide negotiated agreements, and source-specific approvals and orders. Pre-existing sources are often exempted from new standards. The result is that Canadian environmental standards involve a high degree of administrative discretion, government-industry bargaining, and substantial variation across space, sources, and sectors. Command regulation is applied to a wide range of issues including pollution, waste, chemicals, fisheries, forestry, protected areas, and endangered species. Most Canadian pollution regulation emphasizes control, dispersal, and dilution. A more life-cycle-conscious approach is increasingly common,46 but Canada lags behind leading jurisdictions’ moves towards extended producer responsibility, substitution, cradle-to-cradle management, and the circular economy. Many Canadian environmental standards take the form of non-binding guidelines or adopt levels of protection that are years behind those in the United States or EU.47 Most Canadian command regulation is medium-, substance-, species- or sector-specific, making it ill-suited to address cumulative and synergistic effects. Finally, periodic deregulatory episodes in which governments commit to ‘reduce red tape’ or eliminate at least one existing regulation for every new regulation hinder governments’ ability to respond to novel, emerging, and cumulative environmental problems.48

5.3.2 Information-based Regulation Canada was an early adopter of information-based environmental regulation but has fallen behind. It was an early follower of the United States in adopting environmental impact assessment (EIA) processes. The Berger Inquiry into the proposed Mackenzie Valley Pipeline remains a model for public participation, indigenous consultation, ecological sensitivity, and precaution in such processes.49 Unfortunately, EIA law in Canada has not lived up to this early promise. Common limitations include broad exemptions; pre-approvals of entire classes of projects; narrow scoping of assessments; inadequate consideration of 45 e.g. Environmental Protection Act, RSO 1990, c. E.19, s. 14 (Ontario). 46 e.g. Canadian Environmental Protection Act, 1999, SC 1999, c. 33, ss. 64–103 (toxic substances); Toxics Reduction Act, 2009, SO 2009, c. 19 (Ontario); Resource Recovery and Circular Economy Act, 2016, SO 2016, c. 12, Sch. 1 (Ontario). 47 D. R. Boyd, Cleaner, Greener, Healthier: A Prescription for Stronger Canadian Environmental Laws and Policies (Vancouver: UBC Press, 2015). 48 A recent example is the Cutting Unnecessary Red Tape Act, 2017, SO 2017, c. 20 (Ontario). 49 Berger, Northern Frontier, Northern Homeland.

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116 stepan wood alternatives, cumulative effects, and climate change; inadequate monitoring and follow-up; and decision-makers’ disregard for EIA recommendations. Furthermore, most Canadian EIA is project-specific. Strategic environmental assessment of policies, plans, and programmes is underdeveloped. These problems seriously limit the effectiveness of Canadian EIA regimes.50 In 2012 the federal Conservative government slashed the scope and transparency of federal EIA as part of a wider roll-back of federal environmental laws.51 The subsequent Liberal government introduced legislation reversing many of these changes and adding new features, including assessment of a project’s impact on indigenous rights, gender, and the government’s ability to meet its climate change commitments. Other changes include a mandatory early planning phase, greater public and indigenous participation, public reasons for decision on project proposals, and a new agency to conduct EIAs of pipeline projects instead of the muchmaligned National Energy Board.52 The types of projects subject to EIA and the u ltimate approval or rejection of projects remain discretionary political decisions, however. Two Canadian EIA innovations are notable. First, land claims agreements in Canada’s far north have established co-management regimes that incorporate a wider range of social and environmental considerations and indigenous ecological knowledge into EIA processes.53 Second, Canadian scholars54 and some Canadian EIAs have pioneered sustainability assessment, with impressive early results.55 Contribution to sustainability is a central pillar of new EIA legislation introduced by the federal government in 2018,56 but this change has not yet taken effect. Canada was an early adopter of pollutant release and transfer registries (PRTRs), which track and report industrial pollution. The National Pollutant Release Inventory was established in 1992. PRTRs have also been established by some Canadian provinces and municipalities. Canada, Mexico, and the United States established the first international PRTR in 1996, via the North American Commission for Environmental Cooperation. Typical limitations of Canadian PRTRs include high reporting thresholds, multiple reporting formats,

50 e.g. M. Haddock, ‘Current Issues in Environmental Assessment in British Columbia’ (2010) 21 Journal of Environmental Law & Practice 221; M.-A. Bowden, ‘Environmental Assessment Reform in Saskatchewan: Taking Care of Business’ (2010) 21 Journal of Environmental Law & Practice 261; R. D. Lindgren and B. Dunn, ‘Environmental Assessment in Ontario: Rhetoric vs. Reality’ (2010) 21 Journal of Environmental Law & Practice 279. 51 Canadian Environmental Assessment Act, 2012, SC 2012, c. 19, s. 52. 52 Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, 42nd Parl., 1st Sess. (passed 1st reading in the Senate 20 June 2018). 53 Mackenzie Valley Resource Management Act, SC 1998, c. 25 (Northwest Territories); Nunavut Planning and Project Assessment Act, SC 2013, c. 14, s. 2; Yukon Environmental and Socio-Economic Assessment Act, SC 2003, c. 7. 54 e.g. R. B. Gibson, ‘Favouring the Higher Test: Contribution to Sustainability as the Central Criterion for Reviews and Decisions under the Canadian Environmental Assessment Act’ (2000) 10 Journal of Environmental Law & Practice 39. 55 Examples include Voisey’s Bay Mine and Mill (1997), Red Hill Expressway (1999), Kemess North Gold-Copper Mine (2007), White’s Point Quarry (2007), and MacKenzie Gas Pipeline (2010). 56 Bill C-69, An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to amend the Navigation Protection Act and to make consequential amendments to other Acts, 42nd Parl., 1st Sess. (passed 1st reading in the Senate 20 June 2018).

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canada 117 exclusion of key pollutants or media, limited data integration and analysis, and a focus on release rather than production and use of toxic chemicals. There is limited evidence of their effectiveness in empowering marginalized communities or reducing pollution. A third informational regulatory model of which Canada was an early adopter is the creation of independent advisory bodies and watchdogs. Canada established one of the first national round tables on environment and economy in 1988, and most provinces and territories did likewise. These bodies provided valuable independent advice and analysis and were sometimes critical of government. Most did not survive into the new century. The national round table was finally disbanded in 2013. The first official Canadian environmental watchdog was established in 1993 in Ontario. A federal commissioner followed in 1996. These independent officers review and report on the government’s environmental performance and implementation of environmental laws. They have been frequent critics of government. But their typical responsibilities—reviewing and reporting on government performance and facilitating public notice and comment on proposed environmental rules and approvals—are limited compared to some foreign counterparts that investigate public complaints of violations of environmental laws or p roduce state of the environment reports. Indeed, state of the environment reports, a crucial input for making and evaluating environmental law, have always been limited in Canada and most were either discontinued in the 1990s or converted from comprehensive written reports to piecemeal online databases.57 Finally, Canada is not a regulatory leader in ecolabels, environmental certification, or corporate environmental disclosure, although Canadians have played key roles in relevant fields including ecological footprint analysis58 and environmental technology verification.59

5.3.3 Economic Instruments While leading jurisdictions experimented with environmental taxes, trading, subsidies, and other economic instruments, Canadian regulators generally eschewed innovative economic instruments. This is not to say economic instruments were unknown. Gasoline taxes, effluent charges, waste tipping fees, transferable fishing quotas, volume-based water pricing, green technology subsidies, and environmental levies on consumer products are common in Canada but seldom part of concerted efforts to make polluters pay or to shift production and consumption towards environmentally friendly alternatives. By contrast, environmentally unfriendly subsidies abound in Canada, including massive direct subsidies to dirty industries, low prices for exploiting publicly owned resources, and public funding of basic infrastructure. Quebec introduced North America’s first carbon tax in 2007, followed by British Columbia in 2008. Ontario introduced North America’s first feed-in tariff (FIT) for renewable energy 57 e.g. Environmental Reporting BC, available at: http://www.envgovbc.ca/soe/; Canadian Environmental Sustainability Indicators, available at: http://www.ec.gc.ca/indicateurs-indicators/. Saskatchewan, however, publishes biennial state of the environment reports pursuant to the Environmental Management and Protection Act, 2010, S.S. 2010, c. E-10.22. 58 e.g. M. Wackernagel and W. Rees, Our Ecological Footprint: Reducing Human Impact on the Earth (Gabriola Island, BC: New Society, 1996). 59 e.g. Environmental Technology Verification Canada, available at: http://etvcanada.ca/.

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118 stepan wood in 2009. Other provincial FIT programmes followed. Quebec established Canada’s first greenhouse gas cap-and-trade system in 2013. Ontario followed in 2017 (until a new provincial government repealed it in 2018) and other provinces’ systems are under construction. In 2016 the new federal government announced that all provinces and territories must put a price on carbon or they will be subject to a modest federal carbon tax—a concept that was previously anathema in Ottawa60 and remains so in some provincial capitals.

5.3.4 Civil Litigation Despite the emergence of modern environmental regulation, civil litigation remains important. It is often the only way to recover compensation for environmental harm, it can fill gaps in legislative schemes, it can be used proactively to prevent harm, and it can put issues on the public agenda when government and industry refuse to listen.61 Canada is a bijural state in which Quebec’s civil law co-exists with English Canada’s common law. The cliché that English and French Canada are ‘two solitudes’62 captures English Canadian environmental law’s blindness to its Quebec counterpart. Only a handful of decisions of provincial or territorial courts outside Quebec cite Quebec’s main environmental statute and none cites its quasi-constitutional right to a healthful environment.63 Exceedingly few common law environmental cases mention the Quebec Civil Code, and then to distinguish it as inapplicable.64 By contrast, many environmental cases decided under Quebec civil law discuss the common law.65 This openness to common law is not surprising given the dual British/civilian nature of Quebec’s legal system and its isolated position in a ‘sea’ of common law. Similar openness to comparative legal influences could benefit English Canadian environmental law as it faces the dual challenges of reconciliation with i ndigenous legal systems and management of increasingly global environmental problems. The main private law environmental actions in common law Canada are the torts of nuisance, negligence, trespass, and strict liability. Typical remedies are monetary damages and injunctions. In Quebec civil law, environmental actions are available for both fault-based harms and no-fault ‘troubles de voisinage’.66 Civil and common law environmental liability rules are often functionally similar even though their theoretical bases are different.67 The complexity of many environmental problems strains the capacity of the judicial system. Causation is a key obstacle. Canadian courts take a conservative approach to this issue, 60 Government of Canada et al., Pan-Canadian Framework on Clean Growth and Climate Change (2016). 61 W. Charles and D. VanderZwaag, ‘Common Law and Environmental Protection: Legal Realities and Judicial Challenges’ in E. Hughes et al., Environmental Law and Policy (Toronto: Emond Montgomery, 3rd edn. 2003), 87; L. Collins and H. McLeod-Kilmurray, ‘Toxic Battery: A Tort for Our Time? (2008) 16 Tort Law Review 131, at 149. 62 H. MacLennan, Two Solitudes (Toronto: Macmillan of Canada, 1945). 63 Quebec Charter, s. 46.1. 64 e.g. Smith v Inco Ltd, 2013 ONCA 724, para. 32; Susan Heyes Inc v Vancouver (City), 2011 BCCA 77, para. 168. 65 e.g. Québec (Ville de) c. Équipements Emu ltée, 2015 QCCA 1344, para. 163; Ciment du St-Laurent inc. c. Barrette, 2006 QCCA 1437, para. 133. 66 Civil Code of Quebec, CQLR c. CCQ-1991, ss. 976, 1457, 1465. 67 L. Giroux and P. Halley, ‘Environmental Law in Quebec’ in Hughes, Environmental Law and Policy, at 133.

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canada 119 rarely relaxing the traditional ‘but-for’ test68 and eschewing innovations like market share liability, liability for enhanced risk of future harm, and reversal of the burden of proof.69 Courts have almost shut the door on environmental class actions in common law Canada, emphasizing the predominance of individualized issues of causation and damage over common issues.70 Quebec courts have been readier to certify environmental class actions but not ultimately to hold defendants liable.71 The threat of adverse cost awards is a major deterrent to public interest environmental litigation. While Canadian courts have shown some willingness to relieve public interest plaintiffs from adverse cost awards after the fact, they have been very reluctant to immunize public interest litigants against adverse cost awards in advance.72 Compliance with applicable laws and industry customs in place at the time of the impugned conduct is not necessarily a defence to civil liability, but some courts have held that routine, intentional pollution in compliance with applicable laws and customs does not give rise to liability.73 Quebec civil law has, however, imposed liability where a polluter complies with all applicable laws and takes reasonable care yet nonetheless causes excessive and abnormal disturbances.74 Canadian courts are reluctant to hold public authorities civilly liable for causing or permitting environmental harm. They are slow to find that legislation creates a duty of care and quick to rule that government conduct involves policy decisions that are immune from civil liability. Despite some signs of openness to the public trust doctrine,75 Canadian courts are hostile to the proposition that individuals may sue polluters to vindicate alleged public rights to environmental protection, whether in the form of the public trust doctrine or public nuisance.76 I will close on a positive note. Strategic lawsuits against public participation (SLAPPs) are another deterrent to public interest environmental advocacy.77 Canadian courts have generally been unreceptive to such lawsuits78 and provincial legislatures have begun to enact anti-SLAPP legislation.79 68 e.g. Resurfice Corp. v Hanke, 2007 SCC 7. 69 L. M. Collins, ‘Material Contribution to Risk and Causation in Toxic Torts’ (2001) 11 Journal of Environmental Law & Practice 105; L. M. Collins and H. McLeod-Kilmurray, ‘Material Contribution to Justice? Toxic Causation after Resurfice Corp. v. Hanke’ (2010) 48 Osgoode Hall Law Journal 411. See also section 5.3.5.2. 70 e.g. Hollick v Toronto (City), 2001 SCC 68; Canada (Attorney General) v MacQueen, 2013 NSCA 143. 71 C. Kneteman, ‘Revitalizing Environmental Class Actions: Quebecois Lessons for English Canada’ (2010) 6 Canadian Class Action Review 261. 72 C. Tollefson, ‘Costs in Public Interest Litigation Revisited’ (2011) 39 Advocate’s Quarterly 197; Lockridge v Ontario (Director, Ministry of the Environment), 2012 ONSC 2316 (Div Ct). 73 e.g. Smith v Inco Ltd, 2011 ONCA 628; Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108; Canada (Attorney General) v MacQueen, 2013 NSCA 143. 74 St Lawrence Cement Inc. v Barrette, 2008 SCC 64. 75 British Columbia v Canadian Forest Products Ltd, 2004 SCC 38. 76 e.g. Burns Bog Conservation Society v Canada (Attorney General), 2012 FC 1024, aff ’d 2014 FCA 170. 77 M. Scott and C. Tollefson, ‘Strategic Lawsuits Against Public Participation: The British Columbia Experience’ (2010) 19 Review of European, Comparative & International Environmental Law 45. 78 e.g. Daishowa Inc v Friends of the Lubicon (1998) 158 DLR (4th) 699 (Ont Gen Div); Fraser v Saanich (District) (1999) 32 CELR (NS) 143 (BCSC); Grant v Torstar Corp, 2009 SCC 61. 79 Code of Civil Procedure, CQLR c. C-25.01, ss. 51–56 (Quebec); Protection of Public Participation Act, 2015, SO 2015, c. 23 (Ontario).

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5.3.5 Environmental Principles Canada is quick to endorse general environmental principles such as polluter pays, precaution, sustainable development, and environmental justice rhetorically, but slow to put them into practice.

5.3.5.1 The Polluter-Pays Principle Numerous Canadian environmental statutes embrace the polluter-pays principle.80 In practice this usually means only that the polluter should bear the cost of compliance with pollution control or remediation legislation, and these laws only require polluters to pay a small fraction of the cost of pollution. As noted earlier, Canada has been slow to put a price on pollution via economic instruments. Moreover, Canadian pollution laws are riddled with exemptions for certain industries.81 On the positive side, Canada has taken some steps towards requiring the polluter to pay the cost of environmental harm even if caused by legally permitted activities.82 Another notable manifestation of the polluter-pays principle is that a growing number of federal environmental laws require fines to go towards environmental restoration rather than into general government revenues.83 Canada falls far behind leading jurisdictions, however, in requiring the polluter to pay the environmental cost of resource exploitation and depletion, for example via fees and royalties. Canada is ‘notorious for “giving away” its natural wealth at bargain basement prices’.84

5.3.5.2 The Precautionary Principle Canadian governments and courts have been quick to embrace the precautionary principle but slow to operationalize it.85 Dozens of statutes mention it and several require regulators to apply or consider it in operational decision-making,86 but there is widespread reluctance to take it seriously.87 Legislation and case-law typically fail to specify a low threshold for its application, to presume harm above that threshold, to set mandatory timelines for action or to require generous safety margins.88 Some courts insist that the principle’s ‘potentially 80 e.g. Canadian Environmental Protection Act, 1999, SC 1999, c. 33, s. 287; Canada Oil and Gas Operations Act, RSC 1985, c. O-7, s. 2.1; Migratory Birds Convention Act, 1994, SC 1994, c. 22, s. 13.09; National Energy Board Act, RSC 1985, c. N-7, s. 48.11; Contaminated Sites Remediation Act, CCSM c. C205, s. 1 (Manitoba); Environment Act, SNS 1994–95, c. 1, s. 2 (Nova Scotia); Sustainable Development Act, CQLR c. D-8.1.1, s. 6 (Quebec). 81 e.g. M.-A. Bowden, ‘The Polluter Pays Principle in Canadian Agriculture’ (2006) 59 Oklahoma Law Review 53. 82 e.g. Imperial Oil Ltd v Quebec (Minister of the Environment), 2003 SCC 58 (in the public law context); St Lawrence Cement Inc., 2008 SCC 64 (in the private law context). 83 e.g. Environmental Enforcement Act, SC 2009, c. 14. 84 Boyd, Cleaner, Greener, Healthier, at 193. 85 e.g. 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town), 2001 SCC 40. 86 e.g. Canadian Environmental Assessment Act, 2012, SC 2012, c. 19, ss. 52, 4(2); Canadian Environmental Protection Act, 1999, SC 1999, c. 33, ss. 2(1), 76.1; Pest Control Products Act, SC 2002, c. 28, s. 20; Species at Risk Act, SC 2002, c. 29, s. 38; Endangered Species Act, SO 2007, c. 6, s. 11(3) (Ontario). 87 C. Tollefson and J. Thomback, ‘Litigating the Precautionary Principle in Domestic Courts’ (2008–09) 19 Journal of Environmental Law & Practice 33. 88 A notable exception is the federal Pest Control Products Act, ss. 7, 19.

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canada 121 aralysing effects’ must be balanced against an ‘adaptive management’ approach that allows p otherwise socially and economically useful projects to proceed before their environmental consequences are known.89 On the other hand, courts have invoked the principle to require companies to report escapes of seemingly benign materials so that government can respond without waiting for proof of environmental harm.90 They have found that a government’s persistent failures to protect endangered species91 and its refusal to review a pesticide when government scientists disagreed whether it posed an unacceptable environmental risk92 violated its statutory duty to consider the principle. They have even held that aquaculture licences must not derogate from the principle.93 In private law, most Canadian courts resist precautionary efforts to prevent future exposure to potential harms,94 but this resistance is occasionally overcome.95 The Supreme Court has relaxed causation rules somewhat where a defendant negligently creates a risk and scientific uncertainty prevents the plaintiff from proving causation,96 but commentators still urge a more precautionary approach to toxic torts.97 Settler-indigenous reconciliation has generated notable innovation in this area. By way of example, a land-use planning commission created pursuant to modern treaties with Yukon indigenous nations recommended that ‘when society is divided, the responsible approach to take is the one that best preserves options’ by sustaining ecosystems first, sustaining communities and cultures next, fostering sustainable economic activities third, and recognizing that development is difficult to reverse but can proceed in future with societal agreement.98 A court upheld this approach as embodying reconciliation and precaution, and held that the territorial government’s effort to impose its own development-friendlier plan violated its treaty obligations.99

5.3.5.3 Sustainable Development The principle of sustainable development was embraced enthusiastically by Canadian governments and courts in the 1990s but soon devolved into an ineffectual cliché. It is endorsed in many statutes, policy documents, and court decisions, but is sometimes reframed as a principle of sustained economic growth.100 Efforts to integrate sustainability throughout government have borne little fruit.101 The principle retains little of its original force, but the resurgence of indigenous environmental laws102 and the move towards sustainability 89 Canadian Parks and Wilderness Society v Canada (Minister of Canadian Heritage), 2003 FCA 197. 90 Castonguay Blasting Ltd v Ontario (Environment), 2013 SCC 52. 91 e.g. Centre Québécois du droit de l’environnement v Canada (Environment), 2015 FC 773. 92 Wier v Canada (Health), 2011 FC 1322. 93 Morton v Canada (Fisheries and Oceans), 2015 FC 575, para. 99. 94 e.g. Palmer v Nova Scotia Forest Industries [1983] N.S.J. No. 534, 60 N.S.R.(2d) 271 (TD). 95 e.g. Bolton v Forest Pest Management Institute, 1985 CanLII 579 (BCCA). 96 Resurfice Corp v Hanke, 2007 SCC 7; Clements v Clements, 2012 SCC 32. 97 L. Collins and H. McLeod-Kilmurray, The Canadian Law of Toxic Torts (Toronto: Canada Law Book, 2014). 98 First Nation of Nacho Nyak Dun v Yukon, 2015 YKCA 18, affirmed in part 2017 SCC 58. 99 Ibid. 100 Wood, Tanner, and Richardson, What Ever Happened to Canadian Environmental Law, at 992–3. 101 e.g. Federal Sustainable Development Act, SC 2008, c. 33; Environmental Goals and Sustainable Prosperity Act, SNS 2007, c. 7 (Nova Scotia); Boyd, Unnatural Law, at 297–8. 102 e.g. Borrows, Recovering Canada, at 29–55.

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122 stepan wood assessment, discussed earlier, have the potential to breathe new life into this important yet abused principle.

5.3.5.4 Environmental Justice Many racialized and poor Canadians, along with children and other disadvantaged or vulnerable populations, bear a disproportionate burden of environmental risks, enjoy a disproportionately small share of environmental amenities, and have inadequate access to environmental information, decision-making, and remedies. Yet environmental justice has emerged only recently as a movement in Canada and has yet to be incorporated into law or policy.103 Class action lawsuits to remedy environmental injustices against poor and racialized communities have failed.104 Pollution hotspots are tolerated with few exceptions.105 In Canada, environmental injustice is inseparable from colonialism.106 It is impossible to consider environmental justice in Canada without recognizing the disproportionate environmental burdens borne by indigenous peoples, from displacement for resource development across the country, to long-range air pollution and climate change in the Arctic, to contaminated rivers in the Alberta oil sands, to mercury pollution in northern Ontario, to unsafe drinking water on many reserves. Indigenous peoples are among Canada’s most experienced environmental justice campaigners. It is no surprise that once again they are a source of innovation. Indigenous environmental laws offer alternative visions of environmental justice that emphasize balance, respect, and an asymmetric interdependence in which humans need Creation but Creation does not need us.107 For many indigenous peoples, environmental justice means recognizing the responsibilities and rights that all beings—not just humans—have in relation to all of Creation.108 Through generations of struggle, indigenous peoples have refined a four-pronged environmental justice strategy that integrates research, community education, legal action, and direct action.109 This strategy embodies indigenous practices of consensus and situational leadership, validates local and traditional knowledge, and enlivens indigenous values by reinvigorating relationships to the land.110 Settler law and courts play an ambivalent role in this strategy. Environmental justice requires that those silenced by colonialism, patriarchy, and other injustices speak for themselves111 and that the settler legal system accept indigenous laws as legal standards against which to judge actions, not just as evidence of cultural values.112 In short, indigenous peoples are leaders on the path towards environmental justice. 103 Boyd, Cleaner, Greener, Healthier, at 71–85. 104 e.g. Canada (Attorney General) v MacQueen, 2013 NSCA 143. 105 An exception is Lafarge Canada Inc. v Ontario (Environmental Review Tribunal), 2008 CanLII 30290 (Ont. Div. Ct.), paras. 66–7 (upholding tribunal’s decision that it was unreasonable to allow tire incineration in one place while banning it everywhere else). 106 R. Lovelace, ‘Notes from Prison: Protecting Algonquin Lands from Uranium Mining’ in J. Agyeman et al. (eds.), Speaking for Ourselves: Environmental Justice in Canada (Vancouver: UBC Press, 2009), ix, xvii. 107 e.g. M. Wilson, ‘Wings of the Eagle’ in J. Plant and C. Plant (eds.), Turtle Talk (Philadelphia: New Society, 1990), 76. 108 D. McGregor, ‘Honouring Our Relations: An Anishnaabe Perspective on Environmental Justice’ in Agyeman et al., Speaking for Ourselves, at 27. 109 Lovelace, Notes from Prison. 110 Ibid. 111 Agyeman et al., Speaking for Ourselves. 112 Borrows, Recovering Canada, at 47.

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canada 123 Having surveyed Canadian developments in relation to environmental regulatory m odels and principles, I conclude with a brief survey of Canada’s framework for environmental law implementation.

5.4 Implementation Framework: Encouraging Development(s) Canada’s framework for implementing environmental law generally encourages resource and industrial development but also exhibits some encouraging developments from the perspective of environmental protection.

5.4.1 Institutions Canada was an early adopter of such institutional innovations as standalone environmental ministries, pollution licensing, environmental inspectorates, specialized environmental tribunals, and environmental watchdogs. Responsibility for implementing environmental law in Canada is divided amongst numerous government entities, some of which are devoted to environmental protection while others have conflicting mandates to promote and regulate industry. Canada’s parliamentary system, in which the party that controls the legislature forms the executive, provides a powerful incentive to leave the details of environmental law to executive discretion in the form of administrative regulations, individual licences, and government-industry agreements. As a result, the line between policy-making and implementation is particularly blurry in Canada. Executive discretion, combined with some government departments’ dual mandates, often allow industry to dilute environmental protection at the implementation stage. Governments’ reliance on industry for information about the t echnical feasibility, cost, and implementation of environmental regulation magnifies this risk. Canada has no specialized environmental courts but numerous specialized e nvironmental boards and tribunals that vary in their expertise, independence, and openness. The courts generally defer to these specialized tribunals except on pure questions of law. The quality of the administration of environmental law thus depends largely on the quality, independence, and openness of these boards and tribunals. The courts nevertheless play a key role in environmental law enforcement via judicial review and prosecutions. Finally, starting in the 1990s Canada, like other advanced industrialized countries, experimented with having government ‘steer’ but not ‘row’ the regulatory ship: government would set environmental policy while putatively independent agencies, often with substantial industry representation, would work out and apply the details.113 In Canada, this approach

113 D. Osborne and T. Gaebler, Reinventing Government: How the Entrepreneurial Spirit is Transforming the Public Sector (Reading M.A.: Addison-Wesley, 1992).

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124 stepan wood has been applied to such risky activities as rail safety, fuel storage, and air traffic, and has been implicated in public safety disasters.114

5.4.2 Public Enforcement Canadian public authorities have exhibited some creativity in environmental enforcement but have also faced repeated rounds of budget and staff cuts that compromise their ability to fulfill basic enforcement functions.115 Despite occasional admonitions to treat environmental offences ‘as crimes, not as morally blameless technical breaches of a regulatory standard’,116 prosecution and conviction are rare, fines are small, compliance and enforcement data are incomplete, and public transparency is limited.117 For example, a 2011 report concluded that Environment Canada lacked key compliance data, failed to ensure a fair, predictable, and consistent approach to enforcement, and did not know if its enforcement activities were improving compliance or environmental outcomes.118 Enforcement tools traditionally used by Canadian environmental authorities include education, training, and compliance promotion; mandatory industry self-reporting; inspections; negotiated compliance agreements; various types of administrative orders; and prosecutions. Recent years have seen numerous innovations. Some reflect a ‘get tough on crime’ agenda, including higher maximum and mandatory minimum fines, rapid-response enforcement teams, and offender registries. Others pursue ‘smarter regulation’, including on-the-spot tickets and orders, administrative penalties, restorative justice, negotiated settlements, and creative sentencing. There is some evidence that creative sentencing provides environmental benefits and enhances deterrence by involving offenders in e nvironmental restoration.119 Canada was early to recognize that investigation and enforcement should be separated from other regulatory functions to avoid conflicts of interest. The first independent environmental investigation and enforcement branch began operating in 1986, in Ontario. Criminal (as opposed to regulatory) prosecutions for environmental harm are very rare, but since 2004 corporations and managers can be criminally liable when they negligently endanger workers or public safety, and corporate criminality is no longer contingent upon

114 e.g. M. Winfield, ‘The Lac-Mégantic Disaster and Transport Canada’s Safety Management System (SMS) Model: Implications for Reflexive Regulatory Regimes’ (2016) 28 Journal of Environmental Law & Practice 299. 115 e.g. P. Withers, ‘DFO at risk from budget cuts, change: internal review’ CBC News (8 November 2013), available at: http://www.cbc.ca/news/canada/nova-scotia/dfo-at-risk-from-budget-cuts-changeinternal-review-1.2420646; M. Hume, ‘Environment Canada Officers Failed to Uphold the Law: Report’ Globe and Mail (28 January 2016); Fisheries and Oceans Canada, Evaluation of the Fisheries Protection Program and Its Aquatic Invasive Species Component: Final Report (Ottawa: Fisheries and Oceans Canada, 2016). 116 R v United Keno Hill Mines Ltd (1980) 1 Yukon Rep. 299, para. 10 (Territorial Court). 117 e.g. Ecojustice, Getting Tough on Environmental Crime? Holding the Government of Canada to Account on Environmental Enforcement (Vancouver: Ecojustice, 2011). 118 Report of the Commissioner of the Environment and Sustainable Development, December 2011, available at: http://www.oag-bvg.gc.ca/internet/English/parl_cesd_201112_e_36027.html. 119 E. L. Hughes and L. A. Reynolds, ‘Creative Sentencing and Environmental Protection’ (2008) 19 Journal of Environmental Law & Practice 105.

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canada 125 commission of a crime by a ‘directing mind’ of the corporation.120 Most environmental prosecutions proceed as regulatory offences, however. These prosecutions have an unusual feature in Canada: in most cases, even if the prosecution proves that the defendant committed all the elements of the offence, the defendant can avoid conviction by showing that it exercised ‘due diligence’ (reasonable care) to avoid the contravention.121 If it had appropriate systems and practices in place, it will not be found guilty despite having committed the prohibited act.122 This approach encourages regulated firms to take a systematic approach to environmental management, but it can excuse conduct that is illegal on its face. Finally, a federal-provincial agreement promotes delegation of environmental inspections and enforcement to the ‘best situated’ level of government.123 The federal government delegates enforcement of some key federal environmental laws to provinces. Some federal and provincial enforcement functions are delegated to municipalities or non-governmental actors.

5.4.3 Private Enforcement Individuals and civil society organizations play important roles in environmental law enforcement in Canada by bringing judicial review applications and private prosecutions. Judicial review can enforce environmental laws against statutory decision-makers who fail to carry out their statutory duties or misuse their statutory powers. Canada’s liberal public interest standing rules allow anyone to bring a judicial review application if they have a genuine interest in the matter, there is a serious and justiciable issue, and the application is a reasonable and effective means to bring the case to court.124 Grounds for judicial review are limited, courts are often resistant, the standard of review is often deferential, interim relief to protect the environment is hard to secure, victories are rare, and costs are high. Although unsuccessful public interest litigants often avoid paying the government’s costs they are often stuck paying corporate parties’ costs—a fate one judge likened to ‘avoiding a car only to be hit by a train’.125 Judicial review applications have nevertheless been used to force administrative decision-makers to perform their duties under a range of environmental laws from environmental impact assessment to forestry to endangered species protection.126 Private prosecutions are another key avenue for environmental law enforcement. In Canada, unlike the United States, anyone may lay charges against an alleged offender. Private prosecutions are often launched when governments fail to charge private polluters or violate environmental laws themselves. Advantages for private prosecutors include the lack of cost awards and the chance (under certain statutes) to take home half of any fine awarded. Disadvantages include the lack of discovery, the criminal standard of proof, the due diligence 120 An Act to amend the Criminal Code (criminal liability of organizations), S.C. 2003, c. 21. 121 R. v Sault Ste. Marie [1978] 2 SCR 1299. 122 R. v Bata Industries Ltd, (1992) 9 OR (3d) 329. 123 Canadian Council of Ministers of the Environment, Inspections and Enforcement Sub-Agreement (2001), available at: http://www.ccme.ca/en/resources/harmonization/. Quebec is not a party. 124 Finlay v Canada (Minister of Finance) [1986] 2 SCR 607; Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45. 125 Incredible Electronics Inc. v Canada (Attorney General) (2006) 80 OR (3d) 723 (SCJ). 126 e.g. Georgia Strait Alliance v Canada (Fisheries and Oceans), 2012 FCA 40.

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126 stepan wood defence, and the Attorney General’s power to take over and stay the charges. Some provincial Attorneys General invariably do so, but others allow private prosecutions to proceed, or even prosecute private and public charges cooperatively.127 Private charges have been used to punish municipalities’ lax environmental practices,128 extend pollution laws to cover reflective office windows that cause bird deaths,129 and shame governments into prosecuting oil sands operators for waterfowl deaths in tailing ponds.130 The availability of private prosecutions may be one reason why statutory citizen suits are exceedingly rare in Canada. Unlike in the United States, such suits exist in only a few Canadian jurisdictions.131 Their demanding prerequisites, narrow scope, and broad defences make them so unattractive that few have been commenced and none has yet produced a trial decision on the merits. That said, since 1994 Canadians have had an international analogue to a citizen suit: Submissions on Enforcement Matters (SEMs) under the environmental side agreement to the North American Free Trade Agreement.132 At first, SEMs were popular with environmental groups and produced some high profile exposés of government failures to enforce environmental laws.133 But they have been so severely curtailed by delays and executive decisions by the three countries, and offer such limited remedies (only a ‘factual record’), that Canadian NGOs have all but abandoned them.

5.5 Conclusion Canada has been a relative pioneer in some fields including public inquiries, indigenous land claims agreements, resource co-management, independent investigation and enforcement branches, sustainability assessment, proactive municipalities, carbon taxes, and feedin tariffs. In recent decades it has been a laggard, for example in relation to budget and staff cuts, deregulation, executive discretion, cumulative effects, class actions, access to justice, environmental rights, and the public trust doctrine. Canadian experiences largely mirror those of other advanced industrialized democracies. But Canada has noteworthy peculiarities, including a top court that favours environmental protection, subsidiarity, and robust action by all levels of government; a generally collaborative approach to inter-governmental and government-industry regulatory interactions; a bijural system that has been largely ignored by common law Canada; indigenous peoples 127 e.g. Fletcher v Kingston (City) (2004) 70 O.R. (3d) 577 (CA). 128 e.g. Ecojustice, ‘City of Hamilton responsible for pollution clean-up’ available at: https://www. ecojustice.ca/case/holding-the-city-of-hamilton-responsible-for-pollution-clean-up/. 129 Podolsky v Cadillac Fairview Corp., 2013 ONCJ 65. 130 R. v Syncrude Canada Ltd, 2010 ABPC 229; see generally J. Swaigen et al., ‘Private Prosecutions Revisited: The Continuing Importance of private Prosecutions in Protecting the Environment’ (2013) 26 Journal of Environmental Law & Practice 31. 131 Canadian Environmental Protection Act, 1999, SC 1999, c. 33, s. 22; Environmental Bill of Rights, 1993, SO 1993, c. 28, s. 84 (Ontario); Environmental Rights Act, RSNWT 1988, c. 83 (Supp), s. 5 (Northwest Territories); Environment Act, RSY 2002, c. 76, s. 8 (Yukon Territory). 132 The environmental side agreement will continue alongside the new United States-Mexico-Canada Agreement that was negotiated in 2018 to replace NAFTA. 133 e.g. BC Hydro, SEM-97-001, available at: http://www.cec.org/sem-submissions/bc-hydro.

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canada 127 who are vigorously asserting their sovereignty, revitalizing their e nvironmental laws, and practising innovative strategies to achieve environmental justice; the due diligence defence to most environmental regulatory offences; and the importance of private prosecutions in some provinces. Finally, the challenge of reconciliation between settler and indigenous societies presents an opportunity for Canada to emerge once again as an environmental law pioneer.

5.6 Acknowledgements The author is grateful to David Boyd, the editors, and contributors for feedback on earlier drafts and to Lawrence Wong (UBC JD 2019) for research assistance.

5.7 Selected Bibliography Agyeman, J. et al. (eds.), Speaking for Ourselves: Environmental Justice in Canada (Vancouver: UBC Press, 2009). Benidickson, J. Environmental Law (Toronto: Irwin Law, 3rd edn. 2009). Borrows, J., Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002). Boyd, D. R., Unnatural Law (Vancouver: UBC Press, 2003). Boyd, D. R. Cleaner, Greener, Healthier: A Prescription for Stronger Canadian Environmental Laws and Policies (Vancouver: UBC Press, 2015). Collins, L. and H. McLeod-Kilmurray, The Canadian Law of Toxic Torts (Toronto: Canada Law Book, 2014). Doelle, M. and C. Tollefson, Environmental Law: Cases and Materials (Toronto: Carswell, 2nd edn. 2013). Journal of Environmental Law and Practice (Toronto: Carswell, 1990–). Hughes, E. L., A. R. Lucas, and W.A. Tilleman, Environmental Law and Policy (Toronto: Emond Montgomery, 3rd edn. 2003). Winfield, M., ‘An Unimaginative People: Instrument Choice in Canadian Environmental Law and Policy’ (2008) 71 Saskatchewan Law Review 79. Wood, S., G. Tanner, and B. Richardson, ‘What Ever Happened to Canadian Environmental Law?’ (2010) 37 Ecology Law Quarterly 981.

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chapter 6

Peopl e ’ s R epu blic of Chi na Xi Wang

6.1 Overview

129

6.2 Allocation of Powers

130

6.3 Structure and Substance of the Law

133

6.4 Implementation Framework

136

6.5 IPPEP Model and Environmental Governance in China

141

6.2.1 Introduction 6.2.2 Constitutional Provisions 6.2.3 The Political System 6.2.3.1 General Organization 6.2.3.2 Environmental Legislation 6.2.3.3 Law Enforcement Inspection 6.2.3.4 Oversight of Government Work 6.2.3.5 Power Relating to Budgets 6.2.3.6 Appointing and Dismissing Governmental Officials 6.3.1 Introduction 6.3.2 Environmental Laws 6.3.2.1 The Environmental Protection Law (2014) 6.3.2.2 Other Environmental Laws 6.3.3 Environment-related Laws 6.4.1 Introduction 6.4.2 Administrative Institutions 6.4.2.1 Organizational Structure 6.4.2.2 Enhanced Enforcement Powers 6.4.2.3 Cadre Evaluation 6.4.3 Judicial Organization 6.4.3.1 Overview of the System 6.4.3.2 The Rise of Environmental Public Interest Litigation

6.5.1 Major Parties and Players 6.5.2 Rules of Conduct

130 130 130 130 131 132 132 133 133 133 134 134 135 135

136 137 137 138 138 139 139 140 143 145

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people’s republic of china 129 6.5.3 The Relationship between the Major Players and the Rules of Conduct

146

6.6 Concluding Remarks

147

6.7 Selected Bibliography

147

6.1 Overview Any examination of the environmental law system of the People’s Republic of China must keep as a necessary background the overall characteristics of its vast and diverse territory.1 China has a population of 1.3 billion, with the attendant pressure and demands for its environment. The challenges faced China are hardly surprising in a territory of such size, administrative complexity, ecological diversity, and which has undergone such a rapid and far-reaching economic development. As reported by the Ministry of Environmental Protection in 2014, only sixteen of the 161 cities at or above prefecture level under the monitoring program met the new ambient air quality standards. 29.8 per cent of the 470 cities (districts, counties) under precipitation monitoring were affected by acid rain, and the acid rain frequency averaged 17.4 per cent. The sections meeting the Grades I to V (a pollution scale) national surface water standards accounted for 3.4 per cent, 30.4 per cent, 29.3 per cent, 20.9 per cent, and 6.8 per cent respectively and 9.2 per cent was found worse than Grade V, according to the national surface water quality monitoring of 968 sections (points) of 423 rivers and sixty-two lakes (reservoirs). Comparable levels of pollution are also found in groundwater. Out of the 4,896 sites designated for monitoring groundwater quality, the quality of 10.8 per cent was found to be excellent, 25.9 per cent good, 1.8 per cent relatively good, 45.4 per cent relatively poor, and 16.1 per cent extremely poor. Among the 301 monitoring sites of coastal waters, 18.6 per cent were recorded with poor water quality and 28.6 per cent, 38.2 per cent, 7.0 per cent, and 7.6 per cent attained Grades I to IV respectively. The major pollutants were inorganic nitrogen and active phosphate salt.2 The sheer scale of these degradations, added to the scale of the territory, makes environmental regulation a challenging prospect. In this context, this chapter intends to help readers to know the environmental law of China and provide them with both basic information and an instrument for comparative analysis. The next section briefly describes the allocation of powers within the Chinese system as regards environmental protection (section 6.2). Then, the chapter briefly introduces the structure and substance of the major environmental laws (section 6.3). Subsequently, the chapter presents the administrative and judicial organization relating to environmental protection (section 6.4). Finally, the chapter describes the process of environmental governance in China by a conceptual model which is called IPPEP Model (section 6.5), before offering some concluding remarks.

1 A wealth of information relating to the geographical characteristics of China can be found in the English website of the State Council of the People’s Republic of China, http://english.gov.cn/. 2 Website of the Ministry of Environmental Protection, http://english.mep.gov.cn/Resources/Reports/.

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130 xi wang

6.2 Allocation of Powers 6.2.1 Introduction According to the Constitution of the People’s Republic of China, the administrative units in China are currently based on a three-tier system. It is generally described as provincial level, county level, and township level. First, the country is divided into provinces, autonomous regions, municipalities directly under the central government, and special administrative regions. China has twenty-three provinces, five autonomous regions, four municipalities directly under the central government and two special administrative regions. Beijing is the capital of China and one of municipalities directly under the central government. Secondly, provinces and autonomous regions are divided into autonomous prefectures, counties, autonomous counties, and cities. Thirdly, counties, autonomous counties, and cities are divided into townships, ethnic minority townships, and towns.

6.2.2 Constitutional Provisions The Constitution of People’s Republic of China is the fundamental law of the state and has supreme legal authority. The Constitution provides the highest legal basis for e nvironmental protection in China. Article 9 of the Constitution provides that: All mineral resources, waters, forests, mountains, grasslands, un-reclaimed land, beaches and other natural resources are owned by the State, that is, by the whole people, with the exception of the forests, mountains, grasslands, un-reclaimed land and beaches that are owned by collectives as prescribed by law. The State ensures the rational use of natural resources and protects rare animals and plants. Appropriation or damaging of natural resources by any organization or individual by whatever means is prohibited.

Article 26 provides that: the State protects and improves the environment in which people live and the ecological environment. It prevents and controls pollution and other public hazards. The State organizes and encourages afforestation and the protection of forests.

These two provisions are considered as the direct constitutional basis for environmental governance in China.

6.2.3 The Political System 6.2.3.1 General Organization The People’s Republic of China (hereinafter refer as PRC) is a socialist state. Pursuant to Article 6 of the Constitution, the basis of the socialist economic system of the PRC is ‘socialist

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people’s republic of china 131 public ownership of the means of production, namely, ownership by the whole people and collective ownership by the working people’. Under this socialist public ownership system, right to the use of land is recognized by the Constitution. For example, the Constitution provides that ‘the right to the use of land may be transferred according to law’. It is worth bearing in mind that environmental governance in China operates under this unique social system, and it therefore presents some characteristics that other countries do not have. The ‘ruling party’ is central to this. Here the ‘ruling party’ refers to a political party which masters state power. In China, such a party is the Communist Party of China (CPC). The CPC forms strategies for national development and recommends them to the National People’s Congress for adoption and implementation. The CPC recommends cadres to the key positions of various organs of the government. When successfully passed through the election processes at the national or local People’s Congresses, such cadres control the various state powers in terms provided by law. Those cadres, whether they work in the legislative, executive, or judicial organs of the state, play important roles in the process of environmental governance. There are however voices of other political parties. These ‘participatory parties’ are the eight legitimate political parties other than the CPC. They accept the leadership of CPC to China and cooperate with CPC in the state affairs. They are therefore different from the concepts of ‘party out of power’ or ‘opposition party’ as usually understood in Western politics. The eight parties are usually called ‘democratic parties’ in China. The Constitution recognizes their legitimacy and political rights by providing in the Preamble of the Constitution that ‘[t]he system of the multi-party cooperation and political consultation led by the Communist Party of China will exist and develop for a long time to come’. The eight parties have many legitimate channels to exercise their political rights. One of the standing channels for such cooperation is the national and local political consultative conferences. Another one is the regular dialogues (usually bimonthly) between leaders of CPC and leaders of the eight parties. Nowadays, as participatory parties, they are active in the process of environmental governance. They often represent a loud voice in the process of environmental improvements, including making suggestions and criticizing the state of environmental protection so to attract the attention of the government and CPC at the relevant governance levels. The National People’s Congress (NPC) is the highest organ of the state power. Article 2 of the Constitution provides that all power in the PRC belongs to the people. The NPC and the local people’s congresses at various levels are the organs through which the people exercise this state power.3 Both the NPC and the local People’s Congresses play very important roles in environmental protection. The next sections discuss the main powers of the People’s Congress as regards environmental protection.

6.2.3.2 Environmental Legislation According to the Constitution, the NPC and its Standing Committee have the power of legislation. The NPC and its Standing Committee make laws related to or directly on environment protection. Those laws are basic rules of conduct on environment for government, civil societies, and business sectors. 3 Article 2, Constitution of PRC (2004).

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132 xi wang In addition to the Constitutional provisions on environmental protection as previously mentioned in this chapter, there are two levels of laws related or directly on environmental protection. One levels of those laws are called ‘basic laws’ in China. They are made by the NPC itself, that is, the plenary sessions of the NPC. Laws on this level include Criminal Law, General Rules of Civil Law, Criminal Procedure Law, Civil Procedure Law, Property Law, Law on Administrative Litigation, Law on Administrative Punishment, etc. Although they are not environmental law in nature, they are closely related to environmental law. They provide legal foundations and conditions for the operation or implementation of environmental laws. Without them, environmental laws cannot be effectively implemented. For example, the trials of environmental crimes must follow the Criminal Procedural Law, and the trials of civil environmental infringement must follow the Civil Procedural Law. Some of those laws even have provisions on environmental protection, such as Section 6 of Chapter 6 of the Criminal Law, which deals with the ‘crime of damaging environmental resources’. The second level of environmental laws are the ones made by the Standing Committee of NPC. In terms of quantity, they constitute the main body of environmental law of China. After over the thirty years of development since China adopted the policy on Reform and Opendoor to the World in 1981, this body of law now covers almost all major issues and areas of environmental protection. At the centre of this body of law is the Environmental Protection Law of PRC (2014) (hereinafter referred as ‘EPL (2014)’4). Other major e nvironmental laws can be divided into three categories. The first one includes laws on prevention and control of pollutants in the air, water, solid waste, noise, radioactive waste, etc. The second one includes laws on the protection of natural resources such as forests, grassland, soil, ocean and sea, deserts, etc. The third one includes laws on environmental impacts assessment, clean production, and circular economy.5 All of those laws are the specific legal basis for governmental environmental regulation in China. They set rules of conduct for business sectors for preventing and controlling pollution and the ecological destruction that they may cause.

6.2.3.3 Law Enforcement Inspection In addition to the power of law-making, both the national and local People’s Congresses have the power to inspect the state of law enforcement at the local level. The inspection is one of the routine works of the People’s Congresses. After the inspection, People’s Congresses will send to those governments which have been inspected an official document which points out the problems in the implementation of the relevant law and makes suggestions for solving the problems. In this way, the Congresses effectively supervise the performance of the governments in environmental protection.

6.2.3.4 Oversight of Government Work The People’s Congresses have the power to listen to and comment on governmental reports on the work of environmental protection by their regular sessions or special sessions.

4 For an overview of the main features of the EPL 2014 see Zhang Bo et al., ‘A New Environmental Protection Law, Many Old Problems? Challenges to Environmental Governance in China’ (2016) 28 Journal of Environmental Law 325. 5 For the category of environmental laws in China, see Xi Wang (chief ed.), China Environmental Encyclopedia (Volume on Environmental Law) (Beijing: China Environmental Press, 2017, in Chinese), 55.

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people’s republic of china 133 Nowadays, the People’s Congresses exercises the power actively because of the serious concerns surrounding environmental issues raised by civil society.

6.2.3.5 Power Relating to Budgets The Peoples’ Congresses have the power to review and approve governmental budgets for environmental protection. Such budgets usually cover a five-year term and are accounted annually.

6.2.3.6 Appointing and Dismissing Governmental Officials This power is a power of which governmental officials are well aware. Governmental officials may be dismissed because of their poor performance in environmental protection. Local People’s Congresses have the similar powers to the NPC. However, exercise of the powers cannot be in conflict with or contradict the powers of the NPC and national laws.

6.3 Structure and Substance of the Law 6.3.1 Introduction As mentioned above, environmental legislation is the main source of law for environmental governance in China. All parties or players, no matter whether they are the business sector,

Category 1 Fundamental Framework Law on Environmental Protection Environmental Protection Law of PRC (2014) Category 2 Laws on Pollution Control • Air pollution • Water pollution • Pollution caused by solid wastes and hazards wastes • Noise pollution • Radioactive pollution …

Category 3 Laws on Conservation of Nature and Natural Resources • • • • • • • •

Water Land management Fishery Mineral resources Forests Grassland Wildlife Marine environment • Utilization of marine areas • Water and soil conservation • Desertification …

Category 4 Laws on Specific Environmental Matters • Environmental impacts assessment (EIA) • Clean production promotion • Circular economy promotion …

Figure 6.1 System of Environmental Law of China

Category 5 Treaties • • • • • •

Climate change Ozone Layer Biodiversity Basel Convention CITES Rotterdam Convention on chemicals • POPs …

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134 xi wang government, or civil society, all are bound by environmental laws in the process of environmental governance in China. The NPC has made many laws on environmental protection. As Figure 6.1 shows, those laws can be divided into the following five categories. There is only one law in Category One. It is the EPL (2014). According to the Law Committee of the NPC, EPL (2014) is ‘the fundamental and all-around law on environmental protection’ as called by the Law Committee of the NPC.6 The ‘fundamental and all-around’ nature of the EPL (2104) is reflected by its contents.

6.3.2 Environmental Laws 6.3.2.1 The Environmental Protection Law (2014) As in many other countries, the initial steps towards the development of a modern environmental law system in China were taken following the 1972 Stockholm Conference on the Human Environment.7 In 1979, the first version (as a trial law) of the Environmental Protection Law was adopted, followed by the establishment of a network of Environmental Protection Bureaux (EPBs) at various levels of government. At the time, environmental protection was seen as a growing need not only as a result of pollution incidents in the previous decades but also in view of the reform and open-door policy that the PRC was embarking on. This initial version of the law was revised ten years later and became a formal law in December 1989. Although the 1989 EPL was more comprehensive, including a range of command and control techniques, it came at a time when the main priority was economic development, which took precedence over environmental protection. And it was not until the mid-2000s, with the emphasis on environmental protection introduced by the 11th fiveyear plan (2006–10) that the different objectives of sustainable development (economic, social, and environmental) found a new balance. In this context, in 2011 a process towards the revision of the 1989 EPL was launched. Given the variety of views and challenges that this revision process had to face, no less than four formal deliberations, with the attendant drafts, were necessary before the 2014 EPL could be finally adopted. This is exceptional because China’s Legislation Law contemplates a maximum of three deliberations. The revised EPL was adopted by the NPC Standing Committee and not by the plenary. Therefore, it does not have the status of a ‘basic law’ under the Chinese legal order. However, its importance must not be underestimated as it intervenes in a broader policy context characterized by the aim to build an ‘ecological civilisation’, a concept introduced at the eighteenth National Congress of the Communist Party of China, in November 2012. The new priorities are reflected in the change of formulation of the premise of the EPL instead of the previous aim ‘to coordinate environmental work with economic and social development’ now aims ‘to coordinate economic and social development

6 Report on the Revision of the Text of the Amendment of the Environmental Protection Law (Draft) by the Law Committee, National People’s Congress, in XIN Chunying (ed.), Learning Guidance for Environmental Protection Law of People’s Republic of China (Beijing: Chinese Democracy and Law Publisher, 2014, in Chinese), 291. 7 On the process leading to the adoption of the 2014 EPL see Zhang et al., A New Environmental Protection Law, at 326–9. This section relies partly on Zhang et al.’s study.

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people’s republic of china 135 with environmental protection’, with priority given to protection.8 Some additional observations relating to the structure and content of the 2014 EPL are therefore warranted. First, the law provides a framework relating to the basic building blocks of environmental protection regulations in China. For example, in Chapter 1, the law defines some basic legal concepts, such as ‘environment’,9 and determines the scope of its application.10 The law declares national environmental policy.11 It also confirms principles for environmental protection work;12 declares the basic rights and duties of all parties or players in the process of environmental governance including governments, business sectors, and citizens;13 and establishes an the regulatory approach for the country, distributing the regulatory powers among all the relevant ministries in the Central Government and between the Central and local governments.14 Secondly, the law requires both central and local governments to protect the e nvironment and tells them how to do it. For example, Chapters 2 and 3 are mainly about various governmental regulatory measures for environmental protection. Thirdly, the law provides many general restrictions or prohibitions for business sectors for preventing and control of pollution. Chapter 4 has numerous such requirements for enterprises and other regulated entities and persons. Fifthly, the law, for the first time, seriously drags local governments into the game. This can be understood from the title of Chapter 5, which is entitled ‘Information Disclosure and Public Participation’. Under this Chapter, government from all levels are required to report annually their environmental protection activities to the NPC’s Standing Committee. This is significant when seen from the perspective of the new provision (Article 58) on environmental public interest litigation, which is discussed later in this chapter. Sixthly, the law sets basic liabilities and punishments for the one who violates the law. Chapter 6 has provisions on civil liabilities, administrative punishments, and criminal punishments. In a word, the EPL (2014) has its special function. The function is to set forth the basic legal framework for environmental governance in China. This function cannot be played by any other laws in the system of environmental law of China and, as such, the EPL is truly foundational.

6.3.2.2 Other Environmental Laws Environmental protection in China also relies on a number of other laws targeting specific resources, sectors, or subject matters. These include, as noted earlier in this chapter, a category of laws on pollution control such as a law on air pollution control, a category of laws on natural resources conservation such as a law on forests, and a category of laws on some specific subject matters such as a law on environmental impacts assessment.

6.3.3 Environment-related Laws As mentioned above, the smooth operation and implementation of environmental law depends on many laws in other departments of law. The laws include Criminal Law, General 8 Ibid., at 329. 9 Article 2, EPL (2014). 10 Article 3, EPL (2014). 11 Article 4, EPL (2014). 12 Article 5, EPL (2014). 13 Article 6, EPL (2014). 14 Article 10, EPL (2014).

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136 xi wang Rules of Civil Law, Criminal Procedure Law, Civil Procedure Law, Property Law, Law on Administrative Litigation, Law on Administrative Punishment, etc. In China, all environmental cases involving crime will be heard by courts based on the Criminal Law and the Criminal Procedure Law. Likewise, all environmental cases involving civil liabilities will be heard by courts based on the General Rules of Civil Law and Civil Procedure Law. All cases involving wrongdoings of governments will be heard by courts based on the Administrative Litigation Law and the relevant public laws. This means the administrative approach to environmental regulation is particularly important.

6.4 Implementation Framework 6.4.1 Introduction Implementation of the environmental law framework has been a major challenge widely recognized by many observers.15 Many difficulties arise from the vast and diverse nature of the Chinese territory and organization as well as the focus, over the years, on economic and social development. A number of important initiatives have been taken in the last years to strengthen the implementation of the environmental law framework. China’s 11th five-year plan (2006–10) directed great attention to pollution control and energy efficiency, which resulted in the elevation of environmental protection as a top priority (alongside economic growth and social stability), including in the setting of quantitative targets for the evaluation of environmental performance of cadres at various levels of the government. The effects were far-reaching. One observer gives the example of some Chinese provinces where the number of wastewater treatment plants increased from only two in 2006 to some 100 by 2010. At the national level, the rate of installation of pollution control facilities in coal-fired power plants moved from 10 per cent in 2005 to 86 per cent by the end of 2010.16 The use of e nvironmental targets has been expanded in the subsequent five-year plans.17 The profile of environmental protection was further raised when in November 2012, at the eighteenth National Congress of the Communist Party of China (CPC), the top leadership embraced the concept of ‘Ecological Civilisation’ and enshrined it in the CPC Constitution. This concept reformulates socio-economic development from a sustainable development perspective, emphasizing green development, a circular economy and incentives for low carbon projects. The concept was further endorsed by the CPC leadership, with CPC Secretary-General and PRC President Xi Jinping stating that only through a strict system 15 See e.g. M. Palmer, ‘Environmental Regulation in the People’s Republic of China: The Face of Domestic Law’ (1998) 156 The China Quarterly 788; Canfa Wang, ‘Chinese Environmental Law Enforcement: Current Difficulties and Suggested Reforms’ (2007) 8 Vermont Journal of Environmental Law 159; Wang Jin, ‘China’s Green Laws are Useless’, China Dialogue, 23 September 2010, available at: http://www.chinadialogue.net/ article/show/single/en/383 1; He Guizhen et al., ‘Revising China’s Environmental Law’ (2013) 341 Science 133, doi 10.1126/science.1235000; Zhang et al., A New Environmental Protection Law, at 326. 16 A. Wang, ‘The Search for Sustainable Legitimacy: Environmental Law and Bureaucracy in China’ (2013) 37 Harvard Environmental Law Review 365, at 367. 17 Ibid., at 368.

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people’s republic of china 137 and respect for the rule of law was it possible to offer reliable guarantees for the development of an ecological civilization.18 As discussed earlier, the concept of an ecological civilization has now been incorporated in the revised Environment Protection Law (2014). It is however the framework for the implementation of this concept that requires further discussion. This, in turn, calls for a brief survey of both the administrative and judicial organization on which such framework relies.

6.4.2 Administrative Institutions 6.4.2.1 Organizational Structure The administrative organization of China consists of two levels: a central government and governments at various local levels. The name of the central government is the State Council. According to the Constitution, the State Council is the executive body of the NPC and the highest organ of state administration.19 As to environmental protection, the State Council and its commissions and departments are the major regulators. The main commissions and departments of the State Council relevant to environmental protection are the State Commission on Development and Reform (SCDR), the Ministry of Environmental Protection (MEP), the Ministry of Transport (MT), the Ministry of Agriculture (MA), the Ministry of Land and Resources (MLR), the Ministry of Water Resources (MWR), the State Forestry Administration (SFA, under MLR), the Ministry of Housing and urban-rural development (MHURD), the Ministry of Commerce (MC), the Ministry of Health (MH), and the General Administration of Quality Supervision, Inspection and Quarantine (GAQSIQ). As environmental regulators, the main tasks of the State Council and its commissions and departments are to implement the various national environmental laws by enacting relevant administrative implementing regulations and supervising the environmental performance of local governments. All local governments (provinces, autonomous regions, and municipalities directly under the central government, except Hong Kong, Macau, and Taiwan) basically have an administrative organization similar to that of the State Council, that is, a local People’s Government (e.g. the People’s Government of Hubei Province) and a local counterpart of the commissions and departments under the local People’s Government. The local governments are the main taskforce for carrying out governmental environmental regulation at local levels. They are the ones deal with various environmental problems and polluters daily. The relationship between the central and the local administration as regards environmental governance has been quite challenging due to the fact that, at the local level, there has been in many cases a tendency to prioritize economic development over environmental protection. Following the enactment of the first version of the EPL in 1979, a system of EPBs was established at all levels as a way of facilitating monitoring and implementation. However, over time, these faced significant challenges. Two key issues making implementation at the local level particularly difficult were the low level of the penalties that could be imposed on non-compliant industries for breach of environmental requirements, as compared to the 18 Zhang et al., A New Environmental Protection Law, at 329. 19 Article 85 of the Constitution provides that ‘[t]he State Council, that is, the Central People’s Government, of the People’s Republic of China is the executive body of the highest organ of state power; it is the highest organ of State administration’.

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138 xi wang economic cost of compliance, under the previous version (1989) of the EPL, as well as the lack of any clear system of accountability of local government for failure to effectively implement such requirements. Both issues have been specifically addressed in recent years.

6.4.2.2 Enhanced Enforcement Powers As mentioned earlier, EPBs had limited powers of enforcement against the industry under the previous versions of the EPL. One major aspect of the 2014 revision is precisely to provide local EPBs with renewed enforcement powers, including the power to seize and confiscate the equipment of noncompliant industrial facilities, suspend their operation pending rectification, or even shut down their operation. The latter option is, however, conditioned upon the approval of the local government.20 Moreover, the 2014 EPL introduced the possibility of costly daily penalties for companies that recurrently fail to remediate their non-compliance and even the administrative detention of managers who fail to conduct the required environmental impact assessment, allow hidden discharges of pollutants or falsify monitoring data.21 Furthermore, under the 2014 EPL, EPBs will place corporate environmental performance in the credit record thereby linking such performance to access to benefits such as loans, export licences, or company listing. This is a clear indication of the wider use of informational tools for the enforcement of environmental law. In turn, EPBs are themselves responsible for the disclosure of environmental information in their websites, a feature that is expected to foster greater accountability.22

6.4.2.3 Cadre Evaluation The system of cadre evaluation in the PRC was introduced in the 1970s but it has much deeper historical roots in the organization of the bureaucracy of imperial China.23 Its basic tenets are (i) the identification in the relevant five-year plan of a range of targets, defined quantitatively; (ii) the assignment of relative importance to such targets (targets can be ‘soft’, ‘hard’, or ‘veto’, the latter being an absolute requirement that may have decisive effects on the career of a Chinese official); (iii) the determination of the level of officials who will be subject to targets (a key consideration). Cadres are granted great discretion on how to achieve this quantitative performance targets, and their achievement heavily influences their career prospects. Significantly, until the 11th five-year plan (2006–10), environmental targets were only of a soft nature, with economic growth targets classified as ‘hard’ and social stability targets classified as ‘veto’ targets. In such circumstances, one can more easily understand that at different stages of government, cadres clearly prioritized economic growth over e nvironmental protection. This prioritization changed in the 11th five-year plan, which elevated the rank of certain environmental targets (reduction of energy intensity by 20 per cent and of sulfur dioxide and COD pollution by 10 per cent) to that of ‘binding targets’, at the same level as economic growth and social stability. The reason for such elevation was in the increased recognition that environmental degradation was affecting both economic growth and social 20 Zhang et al., A New Environmental Protection Law, at 330. 21 Ibid. 22 Ibid., at 329–30. 23 This section is based on Wang, The Search for Sustainable Legitimacy, at 378ff.

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people’s republic of china 139 stability. Importantly, the responsibility for meeting environmental targets was placed on ‘leading cadres’, namely governors, mayors, and county heads. The elevation of the importance of environmental targets in cadre evaluation led to a range of very ambitious initiatives, with concrete effects. In fact, the target formulation and, particularly, the central government guidance on target implementation induced a number of green industrial policy initiatives leading to the re-orientation of the Chinese economy. Overall, it resulted in substantial investment in green infrastructure, the reduction of heavy industries, and the elimination of small and inefficient facilities.24

6.4.3 Judicial Organization 6.4.3.1 Overview of the System The modern Chinese legal system has the tradition of a civil law system. In the late years of the Qing Dynasty in the end of the nineteenth century, China began to study the modern laws of Germany and Japan. The long time civil war and the war against Japanese invasion interrupted and delayed the development of the modern legal system in China in the first half of the twentieth century. Only after the so-called Cultural Revolution (1966–76) did China come back to normal legal order, allowing modern law to begin to develop again. Numerous laws and regulations, including various environmental laws and regulations, have been put in place or amended since that time. Although many problems remain, the judicial system and legal services have been improved and developed over the years. Statutory law,25 judicial interpretation,26 and treaties are sources of law in China. The structure of the Chinese judicial system can be illustrated from Figure 6.2. It should be noted that Hong Kong and Macao have independent court systems. The courts of Hong Kong and Macao have jurisdiction on all matters except those of national defence and foreign affairs.27 In Taiwan Province, the court system of the former Republic of China applies. Courts in the People’s Republic of China are called ‘people’s courts’. As Figure 6.2 shows, the court system consists of a Supreme People’s Court (SPC) at the top of the nation’s court system and people’s courts at different local levels as well as some special courts. The SPC is the highest judicial organ. According to the Constitution, all the people’s courts exercise judicial power independently, in accordance with the provisions of the law, and are not subject to interference by any administrative organ, public organization or individual.28 24 Ibid., at 403. 25 This includes: the Constitution; laws enacted by the NPC or its Standing Committee; administrative regulations issued by the State Council; local regulations, autonomous regulations, and specific regulations (enacted by the People’s Congress or the Standing Committees at the provincial level); local government rules (enacted by the government at the provincial level); and department rules issued by the ministries and commissions of the State Council, the People’s Bank of China, the National Audit Office, etc. 26 Judicial interpretations in China are not necessarily under the name of ‘interpretation’. Instead, official documents issued by the Supreme People’s Court and the Supreme People’s Procuratorate in terms of ‘interpretation’, ‘decision’, ‘reply’, ‘rule’, ‘guideline’, ‘opinion’ are all considered to be legally binding. 27 Article 19 Basic Law of the Hong Kong Special Administrative Zones (1990) and Art. 19 Basic Law of the Macao Special Administrative Zones (1993). 28 Article 126 Constitution of the PRC (as amended in 2004).

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140 xi wang Supreme People’s Court Special People’s Courts High People’s Courts

Military Courts

Intermediate People’s Courts

Maritime Courts

Local People’s Courts

Railway Transport Courts Forestry Courts

Figure 6.2 China’s Judicial System

According to the Organic Law of the People’s Courts (1983), the local people’s courts are divided into three levels. They are basic courts, intermediate courts, and high courts.29 In addition, there are military courts and other special courts. The parties to a first-instance trial in a local court may appeal to the court of higher level. The judgments and findings of the second level of trial by the intermediate courts, higher courts, and the SPC are the final judgments and findings.30 The judgments and findings of the first trial of the SPC are the final judgments and findings too.31 All cases in the people’s courts are heard in public, except in special circumstances such as matters of national security, individual privacy and juvenile crimes.32 The SPC supervises the administration of justice by the people’s courts at various local levels and by the special people’s courts. People’s courts at higher levels supervise the administration of justice by those at lower levels.33 The SPC is responsible to the NPC and its Standing Committee. Local people’s courts at various levels are responsible to the local People’s Congresses which created them. Both the Supreme Court and the local courts report to the People’s Congresses about their work at equivalent levels. In recent years, along with the development of environmental law and given the severe environmental situation in China, civil, administrative, and criminal environmental cases are on the rise. Correspondingly, specialized environmental tribunals have been established in the SPC and in some provinces, particularly starting in 2007. As a general matter, environmental courts take the form of either environmental divisions of intermediate courts or of stand-alone tribunals at the basic court level. How those environmental tribunals work is a question which remains to be seen, as briefly discussed next.

6.4.3.2 The Rise of Environmental Public Interest Litigation Another significant development in the enforcement of environmental law in the PRC is the increasing resort to environmental public interest litigation (PIL), namely legal suits brought by authorized public interest organizations against private polluters (civil PIL) or 29 Article 2 Organic Law of the People’s Courts (1983). 30 Article 12 Organic Law of the People’s Courts (1983). 31 Article 13 Organic Law of the People’s Courts (1983). 32 Article 125 Constitution of the PRC (2004) and Art. 7 Organic Law of the People’s Courts (1983). 33 Article 127 Constitution of the PRC (as amended in 2004).

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people’s republic of china 141 against administrative agencies (administrative PIL).34 The State Council specifically referred to the promotion of environmental PIL in its 2005 ‘Decision on the Implementation of Scientific Development and Strengthening of Environmental Protection’ (Article 27) but the potential for such avenue only became a reality sometime later, when the Qingzhen county environmental court rendered a judgment in in the so-called Tianfeng Chemical Factory case35 brought by a government agency against a polluter. Since then, environmental PIL has significantly developed. The question of which organizations would have standing to bring environmental suits was the subject of much discussion during the process of revising of the EPL. In the second draft of the revision, only one government-backed organization was granted the right to bring suits. This approach was subsequently expanded in the third draft to nationally registered organizations and, in the final version of the 2014 EPL (Article 58), to organizations registered with civil affairs departments above the municipal level if they have been specifically involved in environmental protection and have not breached any laws or regulations in the last five years. This solution opens the possibility of citizen suits to a few hundred organizations in good standing. After the initial expansion in 2007, the case-load has again grown since 2015, with the entry into force of this new avenue. A study reviewing a sample of thirty-five cases accepted and heard in 2015 concludes that: the cases brought under Article 58 EPL are more diverse than previous cases brought in the period between 2005–14 (which focused mostly on water pollution); the plaintiffs are also more diverse than before, with some grassroots environmental NGOs now involved; defendants are also different from the prior case-load (which focused on rather weak individual defendants), with many large companies being sued now under Article 58 EPL; and the proceedings were swiftly conducted sometimes leading to the award of significant sums or to settlement.36 Interestingly, only a fraction (less than a third) of the cases brought in 2015 were filed before environmental tribunals (predominantly before the Qingzhen county court). As noted by the authors of the study, although the environmental courts were not specifically created for administrative PIL (their goal was to provide an efficient forum for suits brought by administrative agencies), the resort to non-specialized courts is nevertheless noteworthy. Although several challenges remain, the deliberate introduction of environmental PIL in China is overall a positive development.

6.5 IPPEP Model and Environmental Governance in China One particular challenge for the Chinese system has been ensuring mutual accountability for stakeholders operating within environmental governance, both public and private. One 34 See Gong Gu and An Ran, ‘Problems and Obstacles in Environmental Public-Interest Litigation under China’s New Environmental Law: An Analysis of Cases Accepted and Heard in 2015’ (2017) 7 Climate Law 185; A. L. Wang and Gao Jie, ‘Environmental Courts and the Development of Environmental Public Interest Litigation in China (2010) 3 Journal of Court Innovation 37. 35 Guiyang Two Lakes and One Reservoir Management Bureau v Guizhou Tianfeng Chemical Ltd, (Qingzhen Envtl Ct., 27 December 2007) (PRC), discussed in Wang and Gao, Environmental Courts, at 42ff. 36 Gong and An, Problems and Obstacles, at 198ff.

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142 xi wang Law, Regulations f CCP and Gove ines o rnm l p i c ent Dis Environmental Ethics The Third Party

SUPERVISORS: Committees of CCP, People’s Congresses, Citizens, Social organizations, News media, Courts, etc

Supervisory Interactions

Supervisory Interactions

Governments, CCP REGULATORS, SUPERVISEES

Regulatory Interactions

Enterprises REGULATEES, SUPERVISEES

A Conceptual Model of China Environmental Governance Figure 6.3 A Conceptual Model of Environmental Governance of China

way of conceptualizing how such interactions play out in China is the IPPEP model. This model accurately captures how the Chinese system has, formally and informally, responded to this challenge. The IPPEP Model37 is a model describing the Interactions of Parties in Process of Environmental Protection (IPPEP). It is a model which can be used for studying environmental governance in China and in other countries when properly modified according to the national conditions of other countries. As shown by Figure 6.3, the IPPEP Model consists of an equilateral triangle in the center and three circles surrounding the triangle. 37 The original version of the IPPEP Model was published, for the first time, in Chinese in Xi Wang, ‘Legal Protection for Interactions between Parties in the Course of Environmental Protection’ (2012) 1(20) Journal of Shanghai Jiao Tong University (Philosophy and Social Sciences) 5–22.The English version of the original model was, for the first time, published in Xi Wang, A. K. Butzel, R. L. Ottinger et al., ‘Assessing Environmental Governance of the Hudson River Valley: Application of an IPPEP Model’ (Winter 2014) 31(1) Pace Environmental Law Review 1–104. The model in this article is a modified and improved model in 2015.

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people’s republic of china 143

6.5.1 Major Parties and Players As the figure shows, in the centre of the model is an equilateral triangle. The three corners of the triangle represent three groups of major parties or players. The left corner represents ‘government’, which refers to the central and local governments of China. The right corner represents ‘enterprise’, which refers to all kinds of polluters. The top corner represents the ‘third parties’, which include CPC committees, People’s Congresses at central and local levels, citizens, social organizations, and people’s courts at various levels, as well as the news media. In addition to the three corners, there are three equivalent straight lines connecting the three corners. They are the three sides of the triangle. Each side has its particular meaning. The left side is a line connecting the top corner with left corner, which represents a relation of supervision between the third parties and government. The right side is a line connecting the top corner with the right corner, which represents a relation of supervision between the third parties and enterprises. At the bottom of the triangle, there is a line connecting the left corner with the right corner, which represents a relation of regulation between the government and enterprises. The top corner of the triangle represents the third parties. All the components of the third parties have a common function or role—supervision—although the ways by which they carry out the supervision are vary from each other because of their different legal status. Here the word ‘supervision’ takes its broad meaning. All of the major players are supervisors. They supervise the governments at various levels through various channels provided by the Constitution or various laws. Depending upon the Constitution and various laws, their supervisions have different natures and forms. For example, the supervision of the CPC committees is internal through supervising the members of CPC who hold official positions in the governments. The supervision of the People’s Congresses is called ‘legal supervision’, which is carried out through supervision procedures provided by the Constitution and relevant laws and may have serious legal consequences such as the dismissal of governmental officials. The supervision of citizens and social organizations are called ‘social supervision’ in China. This represents the supervision coming from outsiders of the governmental institution. Because of this independence, the supervision usually plays a role which the other supervisors cannot play. The courts play a role of supervisor mainly through trial of cases in which a governmental body is a defendant, which is called ‘judicial supervision’ in China. The news media can supervise both the governments and enterprises. This is called ‘supervision by news media’ in China. A basic fact is that where there is a lack of supervision by the third parties, government usually tends to be slack or running-wild. A few years ago, when I was doing research for the Amendment of the Environmental Protection Law (1989), one member of my research group wrote an article entitled ‘Hanging up the Damocles Sword to Ensure that the Government Is Assiduous in Performance of Environmental Protection Function!’.38 The article is about the necessity of using legal systems to supervise governments. Government is responsible for environmental regulation. If there is a failure due to slack or runningwild, then the environmental regulation will fail and the ‘market failure’ represented by 38 X. U. Fengguo, ‘Hanging up the Damocles Sword to Ensure that the Government Is Assiduous in Performance of Environmental Protection Function!’ (2011) 1 Green Leafs 48–54 (in Chinese).

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144 xi wang pollution and ecological destruction will grow. It is called ‘government failure’. Where government failure exists, the market failure will persist. Without the supervision of governments by the third parties, government will not diligently carry out environmental regulation. It has been proved by numerous events and cases involving various e nvironmental problems in China. It shows the importance of the left sides of the IPPEP triangle, that is, the supervisory relationship between the third parties and the government. A major innovation of the new EPL (2014) is the establishment of a system to ensure that all members of the third parties can effectively carry out their supervisory powers or rights to supervise both the government and the enterprises. It was the first time in the history of environmental law of China that the third parties were assured of those rights. The EPL (2014) stipulates that the local people’s governments shall report to the People’s Congresses of the same level about their environmental protection work and accept the supervision of the People’s Congress.39 Because of this provision, People’s Congresses in many places have strengthened their supervision on environmental regulation of local governments. In order to help citizens and social organizations to supervise governmental regulation, the EPL (2014) requires governments to disclose environmental information to the public.40 For authorizing social organizations such as non-governmental environmental groups to supervise enterprises and other polluters, the EPL (2014) provides a clause on environmental public interest litigation.41 Because of this provision, environmental groups have filed many environmental civil public interest litigations cases (civil PIL) in the courts in recent years. In addition, the EPL (2014) ensures the right of news media to supervise the environmental performances of enterprises and governments at various levels by news reports.42 Because of this provision, environmental news has become one of the hottest topics in public discourse. Before the adoption of the EPL (2014), under the old EPL, the pattern of environmental governance of China was not a triangle by analogy. It was rather only one side of a triangle, that is, the side at the bottom of the triangle model. It was a straight line connecting government (as regulator) and enterprises (as regulatees). The old EPL only ensured a regulatory relationship, not the supervisory relationships between the third parties and the government and between the third parties and enterprises (polluters) respectively. With the adoption of the EPL (2014), for the first time in China, a sound pattern of environmental governance was established. It was a historical and landmark development. The IPPEP model reflects the new pattern. The left corner of the triangle represents the regulator and one of the supervisees, that is, the government at various levels. The government, especially local government, has a dual roles to play in the process of environmental governance. In China, the dual roles of government, especially local governments, are usually described as ‘referee’ and ‘athlete’. The former refers to the environmental regulator and the latter refers to the environmental problemmaker. As a regulator, the government regulates the polluting activities of enterprises and other entities by enforcing environmental law and regulations. However, as a government of a developing country, developing the economy is always high on the agenda of government. Government, especially local government, plays a key role in developing the economy by engaging in economic planning, industrial planning, land-use planning, and attracting 39 Article 27, EPL (2014). 40 Chapter Five (Information Disclosure and Public Participation), EPL (2014). 41 Article 58, EPL (2014). 42 Paragraph 3, Art. 9, EPL (2014).

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people’s republic of china 145 investments and industrial projects. This role of promoting the economy, if not undertaken correctly, will work against the local environment and ecosystem. In that case, local government will become an environmental problem-maker, just the same as the polluting enterprises in many cases. Unfortunately, a large number of mass events caused by bad planning from an environmental perspective carried out by local governments have demonstrated the truth of this. This phenomenon shows the necessity of supervising and restricting the role of government in promoting economic growth to the detriment of other values. So, the real problem lies in the restriction of the environment-related governmental decisions, rather than in regulating enterprises. This is because, if a local government, on the one hand, has made errors in the planning of local land use and economic development, it will usually cause long-term and significant environmental problems to that locality. On the other hand, if a local government is slack in environmental law enforcement, the negative impact of enterprises, such as pollution, will certainly increase. The right corner of the triangle represents all kinds of polluters, including enterprises and other entities. They are regulatees (regulated by government) and supervisees (supervised by the third parties). One thing which is common for them is that when there is a flaw or loophole in environmental regulation, they will usually try to make use of that flaw or loophole to reduce production costs and make extra profits or benefits at the cost of the environment. To correct this problem, unfortunately it is not enough to rely on their environmental morality or ethics. There must be a public regulator to regulate them by implementing environmental law.

6.5.2 Rules of Conduct The three circles surrounding the triangle represent of rules of conduct. The first circle, that is, the inner circle, represents moral or ethical rules of conduct relating to environmental matters. All of the three major parties or players represented by the three corners of the triangle, no matter what kind of profession or status that they are, must be subject to rules of environmental ethics. The development and implementation of environmental law of a society are directly influenced by the level of environmental ethics of that society. If those ethics are of a very low standard, it would be very hard for environmental law to be implemented and complied with in that society. Unless it becomes a unanimously accepted rule of conduct, a moral restraint will not be reliable and predictable, because it relies on people’s introspection and self-discipline. In addition, the development of environmental ethics often takes a long time. It usually lags behind the need for dealing with the challenge of environmental crisis. Therefore, environmental ethics alone is not enough to protect a society from environmental problems. The second circle, that is, the circle in between the inner circle and outer ring, represents the disciplines of CPC and government. Both the CPC and the government have their internal rules of conducts for members of CPC and officials of the government. As the ruling party of the nation and the administrators of the country, the CPC and the government must play a leading role in respecting environmental ethics and laws. Those disciplines are typically represented by the Measures for the Accountability of the Party and Government Leading Cadres in the Ecological Environment Damage (for Trial Implementation, 2015), which was adopted by the CPC and the State Council. In addition, governmental officials must abide

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146 xi wang by the Law on Public Servants of PRC and the Law on Supervision over Administration of the PRC, as well as other relevant laws and relevant provisions in EPL (2014) as mentioned above. The third circle is the outer ring, which represents law, including all the statutory laws on environmental and regulations. This is the ultimate protector of the normal social relations concerning environmental protection. It safeguards the normal exercise of the legitimate rights of all the three groups of major parties or players represented by the three corners of the triangle. It provides the basic code of conduct for people to deal with the environment. Violation of these rules will result in legal sanctions. When the two inner circles are not enough to restrict people’s conduct towards the environment, it is the outer ring, the law, that provides the last guarantee. Therefore, no effort must be spared to maintain the integrity of this circle, with constant reform and improvement of the laws and regulations on environmental protection. To make this circle perfect and to consolidate it is the main task of environmental legislators and environmental law researchers.

6.5.3 The Relationship between the Major Players and the Rules of Conduct So, the relationship between the triangle and the circles is a relationship between the conducts of major players and rules of conduct. The triangle represents the three groups of the major players in environmental governance of China, while the three circles represent rules of conduct relevant to the environment. Therefore, the relationship between the triangle and the circles is that of restraining and being restrained. The three circles restrain the conduct of the three groups of major parties or players. All the major players represented by the three corners of the triangle exercise their environmental rights (ethical or legal) and discharge their environmental duties (ethical or legal) in the process of environmental governance. For a society, as long as environmental law (the outer ring) is well designed and maintained, environmental governance, that is, the interactions of parties in the process of environmental protection, will be in a healthy state. In our study for the Amendment of EPL, my research team and I were concerned about the lack of a system for restraining government power, especially that of local governments, in promoting economic development. There was almost no such provision in either the former EPL or any other environmental laws. No members of the third parties, no matter whether it is People’s Congress, citizens, NGOs, or the courts, were provided by law with a right to supervise the environmental performance of the government. So they basically had no legal way or procedure to conduct such supervision. We found that due to this defect in the law, many local governments failed in carrying out their responsibility for environmental protection. Therefore, our major suggestion to the national legislature was to remedy this loophole by including a supervisory system for government in the new EPL. Happily, this suggestion was adopted by the National People’s Congress and the EPL (2014) provides a system for supervising government. So the EPL (2014), for the first time, provides a complete framework for the environmental governance in China. It not only tells the government how to conduct environmental regulation, but also ensures the supervisory powers or rights of the various members of the third parties for supervising the environmental p erformances of both the government and enterprises.

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people’s republic of china 147 In short, this conceptual model has some theoretical significance. It can serve as a useful tool to investigate the situation of environmental governance of a particular society or country. It is supported by the theory of public choice, which is a theoretical crystal at the junction of economics and political science.43 From the perspective of political science, it is an exploration and description of the national governance system and governance capacity in the field of environmental protection in China. From the perspective of political economics, it reflects legal and moral reform, and the perfection of the superstructure in the field of environmental protection. The improvements of the three circles will in turn doubtless enhance the economic base for the Green Development Strategy of China.

6.6 Concluding Remarks This chapter provides a bridge for non-Chinese people to study the environmental law and environmental governance of China. It introduces some basic information on the environment and environmental law of China. It goes on to recommend an instrumental model for observing and investigating the process of environmental governance in China. The triangle model (including the circles) is not only, in term of methodology, useful for studying environmental law in China, but also useful for studying environmental law of other countries and even that of the world.

6.7 Selected Bibliography Gu Gong and Ran An, ‘Problems and Obstacles in Environmental Public-Interest Litigation under China’s New Environmental Law: An Analysis of Cases Accepted and Heard in 2015’ (2017) 7 Climate Law 185. Depei Han (Chief Editor); Hanguang Chen, (Deputy Chief Editor), Textbook on Environmental Protection Law (Beijing: China Law Press, 7th edn. 2015). Guizhen He et al., ‘Revising China’s Environmental Law’ (2013) 341 Science 133, doi 10.1126/ science.1235000. M. Palmer, ‘Environmental Regulation in the People’s Republic of China: The Face of Domestic Law’ (1998) 156 The China Quarterly 788. A. Wang, ‘The Search for Sustainable Legitimacy: Environmental Law and Bureaucracy in China’ (2013) 37 Harvard Environmental Law Review 365. A. L. Wang and Gao Jie, ‘Environmental Courts and the Development of Environmental Public Interest Litigation in China (2010) 3 Journal of Court Innovation 37. Canfa Wang, ‘Chinese Environmental Law Enforcement: Current Difficulties and Suggested Reforms’ (2007) 8 Vermont Journal of Environmental Law 159. Xi Wang, ‘Comparative Environmental Law and Environmental Law System of China’ in Environmental Law System of China (in Chinese), edited by Steering Committee for Television Education Program of Chinese Environmental Law (Beijing: Publisher of National Defense Industry, 1994), 350–68. Xi Wang, ‘Legal Protection for Interactions between Parties in the Course of Environmental Protection’ (2012) 1(20) Journal of Shanghai Jiao Tong University (Philosophy and Social Sciences) 5–22. 43 The leading scholar and representative of the Public Choice Theory is Professor James M. Buchanan, 1919–2013, George Mason University, United States. He is the holder of the Nobel Prize in Economics (1986).

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148 xi wang Xi Wang (chief ed.), China Environmental Encyclopedia (Volume on Environmental Law) (Beijing: China Environmental Press, 2017, in Chinese). Xi Wang, ‘On the Necessity of Normalizing and Restricting Governmental Decisions Related to the Environment’ (2013) 2 Law Review, Wuhan University 94–102. Xi Wang, A. K. Butzel, R. L. Ottinger, et al., ‘Assessing Environmental Governance of the Hudson River Valley: Application of an IPPEP Model’ (Winter 2014) 30(1) Pace Environmental Law Review 1–104. Xi Wang and Kun Lu, Environmental Law in China (The Netherlands: Wolters Kluwer, 2nd edn. 2017). Chaofei Yang (chief ed.), The Road to Rule of Law in Environmental Protection: A Study Report on the Thoughts of Revision of the Environmental Protection Law of PRC (Beijing: China Environmental Press, 2013). Fengguo Xu, ‘Hanging up the Damocles Sword to Ensure that the Government Is Assiduous in Performance of Environmental Protection Function!’ (2011) 1 Green Leafs 48–54 (in Chinese). Bo Zhang et al., ‘A New Environmental Protection Law, Many Old Problems? Challenges to Environmental Governance in China’ (2016) 28 Journal of Environmental Law 325. Xiao Zhu, Environmental Law (Beijing: China Environmental Science Press, 2011).

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chapter 7

The Eu rope a n U n ion Markus Gehring, Freedom-Kai Phillips, and Emma Lees

7.1 Introduction

150

7.2 Constitutional Basis for Environmental Regulation in the European Union

151

7.3 Structure and Substance

153

7.3.1 Transversal Regulation 7.3.1.1 Environmental Principles 7.3.1.2 Access to Information and Justice 7.3.1.3 Environmental Impact Assessment and Strategic Impact Assessment 7.3.1.4 Liability for Environmental Damage 7.3.2 Sectoral Controls 7.3.2.1 Waste 7.3.2.2 Chemicals 7.3.2.3 Water 7.3.2.4 Conservation 7.3.2.5 Climate Change 7.3.2.6 Air Quality 7.3.3 Indirect and Other Influences

7.4 Implementation Framework 7.4.1 Overview

7.4.2 Administrative Enforcement and the Role of the Member States 7.4.3 The Role of the Court of Justice of the European Union 7.4.3.1 Foundational Authority 7.4.3.2 Influence in Practice 7.4.3.3 Comparative Environmental Law in the CJEU: Modes of Engagement

154 154 155

156 156 157 157 159 159 160 161 162 163

163 163

164 164 164 165 166

7.5 Conclusion

169

7.6 Selected Bibliography

169

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150 Markus Gehring, Freedom-Kai Phillips, and Emma Lees

7.1 Introduction Environmental protection is a key pillar underpinning the development and evolution of the legal corpus of the European Union (EU). Throughout this evolution, the EU has taken inspiration from its Member States and beyond, as well as providing models for environmental regulation elsewhere. In this sense, the relationship is symbiotic. This chapter explores the environmental law of the EU and its major components. First, the development of EU environmental law and its Treaty-based underpinning is explored. Second, the structure and substance of EU environmental law are considered. We consider both the transversal elements of such regulation (environmental principles; access to information and justice; environmental impact assessment (EIA); and principles of liability) and sectorial regulation (chemicals/waste, water, conservation, and air pollution/climate change). Third, the administration of European environmental law is considered, with particular attention paid to the role of the Court of Justice of the European Union (CJEU) in the development of environmental policy across the EU, giving insight into the EU framework for implementation, such as it is. Environmental governance within the EU has, since its inception, been inspired, influenced, and grounded in a comparative legal approach, and consideration of the EU is therefore both important for this book as an example of an environmental regulatory system in itself, and also of ways in which comparative analysis can be useful. We explore this theme in particular in the concluding section. A product of practicality, if not necessity, the integration of comparative environmental legal development across the EU provides institutional pillars to foster enhanced integration within the common market, through mutually agreed and mutually supportive environmental mechanisms. Before moving on to discuss the substantive rules of the Union, both in terms of the constitutional foundations of its environmental law, and in respect of some of the flagship pieces of EU environmental regulation, it is important to consider the choice made by this book to treat the EU as a ‘country’ in terms of its place within the country studies. In some ways, this is an unsurprising decision. When we consider the chapters concerning the United States, Australia, Canada, and the like, it is normal to consider the role of ‘federal’ actors in respect of environmental controls, even if, as is the case in most of the federal states in this book, environmental protection is not a matter which is under federal control. Furthermore, the EU has had such a huge influence in environmental regulation, not just in Europe, but also extraterritorially, as we will discuss, that we would be remiss in not including it. Every act that the Union takes has to have a Treaty basis. It does not have a reservoir of power which it can utilize absent specific authorization in, what is in effect if not in name, its constitutional documents. This is constitutionally similar to the United States or Australia, where the federal government has often ‘diverted’ existing constitutional powers to use them for environmental purposes. However there is also a difference between the EU and states with a federal structure and that lies in two key features of the EU’s approach to environmental regulation. First, the EU does not itself have the mechanics to enforce and implement environmental law. There is a European Environment Agency, but it is primarily a research body and does not directly implement environmental standards. Thus the EU’s environmental laws are almost

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The European Union 151 entirely dependent upon Member States’ active enforcement. Second, and perhaps more contentious, it is the ‘one degree removed’ nature of the EU (sometimes referred to as its democratic deficit, despite its elected Parliament) which may mean that the Union is able to introduce a series of relatively strict, and therefore potentially politically unpopular rules. It is no coincidence that the state of environmental protection in the Member States increases upon accession to the EU, as those states which joined in the latest round of expansion demonstrate.

7.2 Constitutional Basis for Environmental Regulation in the European Union Environmental law in the EU has grown from humble, if not inauspicious beginnings.1 This section provides an overview of the early development of EU environmental law, its Treaty bases, and a summary of the legislative process as background. Grounded in the goal of market integration, the EU began with six members (France, Germany, Italy, Belgium, Luxembourg, and the Netherlands) under the European Coal and Steel Community in 1952.2 The Treaty of Rome establishing the European Economic Community (EEC), which was signed in 1957, omitted any reference to environmental policy or protection.3 However, flexible language found in former Article 235 (now Article 352) provided for the passage of ‘appropriate measures’ to attain one of the objectives of the Community, even where the Treaty is silent.4 Early examples of operational-focused legislative approaches which fostered increased environmental protection include Directive 67/548 relating to packaging and labelling of dangerous substances,5 and Directive 70/157 relating to the exhaust systems of motorized vehicles.6 Admittedly, early legislative 1 M. Lee, EU Environmental Law, Governance and Decision-Making (London: Hart Publishing, 2nd edn. 2014), 2. 2 M. Gehring, ‘Solidarity, Sustainable Development and the European Constitution’ in M. Morin et al. (eds.), Responsibility, Fraternity and Sustainability in Law—In Memory of the Honourable Charles Doherty Gonthier (Toronto: LexisNexis-Canada, 2012), 4. 3 Lee, EU Environmental Law, Governance and Decision-Making, at 1; J. H. Jans and H. H. B. Vedder, European Environmental Law (Groningen: Europa Law Publishing, 3rd edn. 2008); L. Kramer, EU Environmental Law (London: Sweet & Maxwell, 8th edn. 2015), 1–5. 4 Treaty Establishing the European Economic Community (EEC), Rome, 25 March 1957, Art. 235, available at: http://ec.europa.eu/economy_finance/emu_history/documents/treaties/rometreaty2.pdf; Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, Lisbon, 17 December 2007, OJ C 306/1, Art. 308; Consolidated Version of the Treaty on the Functioning of the European Union, 26 October 2012, OJ C 326/47, Art. 352. 5 EC, Directive 67/548 relating to the classification, packaging, and labelling of dangerous substances, OJ 1967 L 196/1, available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31967L054 8:EN:HTML. 6 EC, Directive 70/157 relating to the permissible sound level and the exhaust system of motor v ehicles, OJ 1970 L 42/16, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31970L0157.

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152 Markus Gehring, Freedom-Kai Phillips, and Emma Lees approaches in the EU offered limited cohesiveness in response to environmental challenges, and were a spillover grounded in the necessity of economic integration.7 Galvanization of public and political opinion around environmental matters found roots first in the summer of 1972 with the Stockholm Declaration on the Human Environment, which established a responsibility on the international community to sustainably manage ecosystems,8 and later in the autumn where the European Council recognized the value of an environmental policy for the Community and requested institutions to develop an environmental action program within the year.9 Grounded in Articles 100 and 235 of the Treaty of Rome (now Articles 115 and 352), early environmental legislation was developed pursuant to the governance of the functioning of the common market.10 Notable examples developed during this phases include: lead content in gasoline,11 detergents,12 exhaust systems,13 aquatic pollution,14 air pollution and hazards relating to industrial facilities,15 and toxic waste.16 The second significant phase was initiated by way of the Single European Act, which was adopted in 1986, and included an explicit legal basis for environmental protection grounding development of environmental legislation at the continental level.17 Article 130 r-t (now Articles 191–192) introduced novel principles, including the importance of preventative action to address environmental damage, with the costs borne by the polluter,18 building

7 J. Scott, ‘Law, Legitimacy and EC Governance: Prospects for Partnership’(1998) 36(2) Journal of Common Market Studies 175–94, at 179, 193. 8 UN, ‘Stockholm Declaration on the Human Environment’ (16 June 1972), available at: http://www. unep.org/Documents.Multilingual/Default.asp?documentid=97&articleid=1503. 9 EC, ‘Bulletin of the European Communities’ (1972) 6(10), paras. 8, 31–2, available at: http://aei.pitt. edu/56272/1/BUL090.pdf; Jans and Vedder, European Environmental Law, at 3. 10 Treaty of Rome, Arts 100, 235; TFEU, Arts 115 and 352; ‘Article 100: ‘The Council shall . . . issue directives for the approximation of such provisions laid down by law . . . in Member States as directly affect the establishment or functioning of the common market’; ‘Article 235: If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community . . . the Council shall . . . take the appropriate measures.’ 11 EC, Directive 85/210 concerning the lead content of petrol, OJ 1985 L 96/25, available at: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31985L0210:EN:HTML. 12 EC, Directive 73/404 relating to detergents, OJ 1973 L 347/51, available at: http://eur-lex.europa.eu/ LexUriServ/LexUriServ.do?uri=CELEX:31973L0404:EN:HTML. 13 Directive 70/157; EC, Directive 78/1015 on the permissible sound level and exhaust system of motorcycles OJ 1978 L 349/21, available at: http://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX:31978L1015. 14 EC, Directive 76/464 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community, OJ 1976 L 129/23, available at: http://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=CELEX%3A31976L0464. 15 EC, Directive 84/360 on the combating of air pollution from industrial plants, OJ 1984 L 188/20, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31984L0360; EC, Directive 82/501 on the major-accident hazards of certain industrial activities, OJ 1982 L 230/1, available at: http:// eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31982L0501. 16 EC, Directive 78/319 on toxic and dangerous waste, OJ 1978 L 84/43, available at: http://eur-lex. europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31978L0319. 17 Lee, EU Environmental Law, Governance and Decision-Making, at 1, 3. 18 The Single European Act, 29 June 1987, OJ L 169/1, Art. 25, available at: http://eur-lex.europa.eu/ legal-content/EN/TXT/?uri=OJ%3AL%3A1987%3A169%3ATOC; Arts. 192–193 TFEU.

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The European Union 153 upon similar references made in the Brundtland Report in March of 1987.19 Ensuing revisions, through the Treaty of Maastricht (1992), the Treaty of Amsterdam (1997), increased the prominence of environmental factors, and encouraging harmonization, requiring c ooperation with the European Parliament, enshrining the precautionary principle as a guide for environmental policy,20 introduced the concept of sustainable development, and prioritized integration in the sphere of environmental protection.21 Environmental legislation at the EU level remained relatively settled leading to the Treaty of Lisbon which was signed in 2007 and entered into force in 2009, and established the Treaty on the European Union (TEU),22 and the Treaty on the Functioning of the European Union (TFEU).23 Under the TFEU environmental objectives and considerations are prioritized through inclusion of Articles 191–193. Environmental policy objectives for the EU are established as: (i) preservation, protection, and restoration of the environment; (ii) protection of human health; (iii) sound use of natural resources; and (iv) promotion of measures at the international level to address global challenges, including climate change.24 All policy instruments are intended to be responsive to the diversity of situations across the region, in accordance with the precautionary and polluter-pays principles, grounded in available scientific and technical data, and in cooperation with third-party states and competent international organizations.25 Measures relating to the environment require joint adoption through the European Parliament and Council, with the exception of water resource management and land use which are subject to unanimity.26 Importantly nothing restricts a Member State to establish Treaty-compliant environmental measures which are more stringent.27 Throughout the development of harmonized EU environmental law, comparative approaches and compromise-driven legislation exemplified the raison d’etre of integration.28

7.3 Structure and Substance The scale and range of EU environmental law makes it impossible to provide a detailed analysis of all that it does. Furthermore, with much of the precise and modulated implementation of 19 World Commission on Environment and Development, Our Common Future (Oxford: Oxford University Press, 1987), para 55, Annex I paras. 10–11, available at: http://www.un-documents.net/ourcommon-future.pdf. 20 Treaty of the European Union, signed at Maastricht on 7 February 1992, 29 July 1992 OJ C 191/01, Arts. 2–3, 130 r-t, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:C:1992:191: FULL&from=EN. 21 Treaty of Amsterdam Amending the Treaty of European Union, the Treaties Establishing the European Communities and Certain Related Acts, 10 November 1997, OJ C 340/1, Arts. 2–3, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.C_.1997.340.01.0001.01.ENG&toc= OJ:C:1997:340:TOC. 22 Consolidated Version of the Treaty on European Union, 26 October 2012, OJ C 326/13, available at: http://eur-lex.europa.eu/resource.html?uri=cellar:2bf140bf-a3f8-4ab2-b506-fd71826e6da6.0023.02/ DOC_1&format=PDF. 23 Treaty of Lisbon; TFEU. 24 Article 191(1) TFEU. 25 Article 191(2)–(4) TFEU. 26 Articles 192(1)–(2), 289 TFEU. 27 Article 193 TFEU. 28 L. J. Pike, Encyclopedia of Disputes Installment 10 (North-Holland: Max Planck Institute, 1987), 47; ‘[t]he essential task of harmonization of the laws of Member States (Article 100 of the Treaty of Rome) can only be fulfilled on a comparative basis.’

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154 Markus Gehring, Freedom-Kai Phillips, and Emma Lees EU environmental law dependent upon further implementation measures taken at Member State level, EU environmental law often exists at a relatively high level of abstraction. It is left to the Member States to put meat onto the bones of EU regulatory interventions. For this reason, there is a prevalence of framework directives as the primary mechanism by which environmental law is enacted in the Union. Nevertheless, we can point to certain areas of particularly strong interventions by the Union, which have had significant impacts within the Member States. Not least amongst these rest the Environmental Impact Assessment and Strategic Environmental Assessment Directives; the Habitats and Wild Birds Directives; the Waste and Water Framework Directives; Air Quality provisions; and the REACH chemicals controls. Indeed, it could be argued that there are few areas of traditional environmental concern which are not now significantly shaped across the Union by the activities of the EU itself. Perhaps only soil as a major receptor of environmental harm has been left off the list of direct interventions by the Union, and even there, the Environmental Liability Directive has a role to play. Thus, in this section, we consider these interventions from both a transversal and a sectorial perspective.29

7.3.1 Transversal Regulation 7.3.1.1 Environmental Principles As highlighted above, the Treaty provisions relating to the environment are centred around the environmental principles. These principles both actively direct and constrain environmental acts within the Union itself, and providing a ‘rallying point’ for action by the organs of the Union, which then become binding upon the Member States. The relevant principles are contained in Article 191(2) TFEU which states: Article 191(2) TFEU Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.

The four principles here must be supplemented with the so-called ‘integration principle’ which requires that protection of the environment be integrated into all of the policies and legislation of the Union (Article 11 TFEU). The legal status of these principles is not clear, however. They are certainly used as tools to assist in the interpretation of the relevant law. In relation to the polluter-pays principle this is seen in the way in which the Environmental Liability Directive has been applied,30 and the precautionary principle has had an enormous influence on the operation of both 29 On this distinction see J. E. Viñuales and E. Lees, ‘Environmental and Energy Law as a Field of Research: A Structural Overview’ in J. E. Viñuales and E. Lees (eds.), Environmental and Energy Law: International, European and Comparative Dimensions, vols. I–III (Cheltenham: Edward Elgar, 2017), chapter 1. 30 C-378/08 Raffinerie Mediterranee (ERG) SpA v Ministero dello Sviluppo Economico [2010] ECR I-01919.

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The European Union 155 the Waste31 and Habitats Directives,32 amongst much else. However, the principles do not themselves seem to be binding, in the absence of the relevant legislative measure and do not thus represent stand-alone grounds for challenge either of acts of the Union itself, or of acts by the Member States.33 To make generalizations around the operation of these rules is, however, as Scotford has demonstrated, somewhat unhelpful.34 Rather, it is better to recognize that in different contexts, the precise ‘work’ being done by the environmental principles will morph according to the types of question being asked by the relevant court. This rather ‘slippery’ nature does not however mean that these principles have not had an enormously significant effect on the way in which the Union does its environmental law. Furthermore, the interpretive enforcement of these principles at Union level has meant that they do, to a certain extent, form part of the interpretive corpus used within the Member States themselves.

7.3.1.2 Access to Information and Justice Similarly influential has been the approach of the EU to mandate compliance with the Aarhus Convention35 by its Member States. The EU is itself a signatory to the Convention, and introduced Regulation 1367/200636 in order to require that its own institutions comply (except in respect in respective of the judicial and legislative functions). This caveat respecting the actions of the judicial branch is very significant, and is considered below. In addition to this, Directive 2003/4/EC37 and Directive 2003/35/EC38 require that the Member States ensure access to information and public participation through the Environmental Impact Assessment (EIA) process (see section 7.3.1.3), and this helps to ensure Aarhus compliance through the EU. It should be noted that the implementation of the Aarhus convention has

31 Tombesi Litigation [1998] Env. L. R. 59; Inter-Environment Wallonie ASBL v Regione Wallonie [1998] Env. L. R. 625; ARCO Chemie Nederland Ltd v Minister van Volkshuivesting and EPON C-418-19/97 [2000] ECR I-4475; AvestaPolarit Chrome Oy C-114/01 [2003] ECR I-8725; Palin Granit Oy v Vemassalon kansanterveystoyn kuntaaghtyman hallitus C-90/00 [2002] ECR I-3533; Van de Walle & Ors C-1/03 [2005] Env. L.R. 24; KVZ Retec GmbH v Republik Osterreich C-176/05 [2007] ECR I-1721. 32 E. Scotford, Environmental Principles and the Evolution of Environmental Law (Oxford: Hart Publishing, 2017). 33 The ‘closest’ case to achieving this is probably Case T-13/99 Pfizer Animal Health v Council of the European Union [2002] ECR 11–330. 34 E. Scotford, ‘Trash or Treasure: Policy Tensions in EC Waste Regulation’ (2007) 19 Journal of Environmental Law 367–88. 35 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, 25 June 1998, 2161 UNTS 447. 36 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, 25 September 2006, OJ L 264/13. 37 EC, 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, 14 February 2003, OJ L 41/26. 38 EC, 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, 25 June 2003, OJ L 156/17.

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156 Markus Gehring, Freedom-Kai Phillips, and Emma Lees not been without criticism. The Aarhus compliance panel noted in its decision that direct access to EU courts is overly restrictive and requested changes.39

7.3.1.3 Environmental Impact Assessment and Strategic Impact Assessment Taking the consideration of environmental information a step further, the EU has also intervened significantly with regards to the EIA process, expanded subsequently to include the strategic assessment process for plans and policies, as well as for individual projects. This regulatory technique aims not at environmental protection per se, but works as a bridge between the environmental principles and the access to information and justice requirements discussed above. It is therefore a means by which such information can be structured and targeted to highlight when and how a plan, project, or policy would challenge those goals expressed in the principles. It does not however demand compliance with such principles, nor indeed does it aim to ensure environmental protection in any meaningful sense. In this way, EIA and strategic environmental assessment (SEA) are purely procedural tools. The procedures which must be followed are found in the Environmental Impact Assessment Directive,40 introduced in 1985 and regularly updated, with the most recent changes in 2014. The Directive requires that plans or projects must be assessed for their impact on the environment if either the project falls within Annex I (so that EIA is mandatory), or, where the project falls within Annex II, if the project is likely to have significant effects on the environment (Articles 2 and 4). Whilst Annex I cases are therefore easy to ‘spot’, Annex II projects must undergo two assessments: first, what is referred to as a screening assessment to ascertain whether the project requires more detailed study; and second, the EIA itself. If an EIA is found to be required in an individual case, the next step is for the preparation of the relevant documents. This will consist of an EIA report which is provided by the proposed developer of the project. This report will then become the subject of public consultation—public participation and access to the decision-making process here reflects the value of a range of voices in the decision-making process, as well as the obligations in the Aarhus Convention. Once the relevant authority is satisfied with the information provided, it is they, not the developer, which actually carry out the assessment, and they must provide a reasoned decision emerging from that process. The SEA process is similar,41 except that this involves the implementation of policies and programmes by public authorities, as opposed to particular plans or projects.

7.3.1.4 Liability for Environmental Damage Finally, in respect of transversal regulation, the establishment of an adequate legislative scheme to support prevention of environmental damage and to harmonize approaches to liability for such, is the aim of the Environmental Liability Directive, passed in 2004.42 39 See Client Earth complaint about Annulment Proceedings 2011, available at: https://www.unece. org/fileadmin/DAM/env/pp/compliance/CC-32/ece.mp.pp.c.1.2011.4.Add.1.e.pdf. 40 EC, 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, 28 January 2012, OJ L 26/1. 41 EC, Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment, 21 July 2001, OJ L 197/30. 42 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.

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The European Union 157 This Directive derives much of its substantive basis from the comparative approaches of Member States—in particular the German approach. The key features of this Directive are as follows. First, the definition of ‘environmental damage’ focuses on significant adverse effects which impact conservation status.43 Second, the evidential burden is addressed through a presumption of liability on the operator but for: (i) cases of prior proper authorization and full compliance with domestic law, or (ii) previous demonstration that the activity was not likely to cause environmental harm.44 Third, operators are required to bear the cost of r emedial action, including cost-recovery by the national authority, but for cases where the operator can demonstrate the fault of a third party, or the incident was a result of a compliance order from a public authority.45 Lastly, Member States are encouraged to foster development of financial security instruments for utilization by operators, and are granted the flexibility to establish more stringent provisions including the introduction of a requirement of mandatory insurance.46 The comparative national approaches complied at the onset of the legislative process can be identified as influential in the substantive provisions eventually adopted.

7.3.2 Sectoral Controls In addition to the development of such cross-cutting regulatory techniques and approaches, the EU has made significant efforts in relation to a number of sectors. Indeed, as mentioned above, almost all areas are now covered with perhaps the exception of the pollution of soil. Some of the most significant are: waste; chemicals; water; conservation; and air pollution and climate change.

7.3.2.1 Waste The Waste Framework Directive (2008/98/EC),47 in conjunction with a broad range of supporting legislation addressing various waste streams,48 governs waste management in the EU. The operation of this Directive and its daughter Directives can be neatly demonstrated by reference to the highly topical regulation of plastic waste. The Waste Framework Directive itself, specifies that waste will be ‘controlled’ under its own provisions or those of the daughter Directives if it is a ‘substance or object which the holder discards or intends or is required to discard’ (Article 3). This definition has produced an enormous amount of litigation, not least because despite its ostensibly ‘subjective’ nature, the CJEU has sought to interpret the provisions in a precautionary way, and in doing so has incorporated elements of an objective test. Once a substance has been concluded to be waste, it then becomes subject to the ‘waste hierarchy’, an approach to waste management which mandates that waste management 43 Ibid., Art. 2(1). 44 Ibid., Art. 8(4). 45 Ibid., Art. 8(2)–(3). 46 Ibid., Arts. 14(2), 16. 47 EC, Directive 2008/98/EC on waste and repealing certain Directives, 19 November 2008, OJ L 312/3. 48 Regional Environmental Center (ed.), Handbook on Implementation of EC Environmental Legislation, (European Communities 2007). A total of twenty-one instruments can be identified covering various waste streams, for further information see EU, ‘European Union legislation on specific waste streams’, available at: http://ec.europa.eu/environment/waste/legislation/c.htm.

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158 Markus Gehring, Freedom-Kai Phillips, and Emma Lees policy should seek to achieve: ‘(a) prevention; (b) preparing for re-use; (c) recycling; (d) other recovery, e.g. energy recovery; and (e) disposal’, in that order (Article 4). This hierarchy has proven somewhat controversial, as it indicates an underlying ambivalence as to what the goals of waste controls should be: the prevention of ‘waste’ by encouraging easy economic use of materials which are apparently waste; or the prevention of harm to the environment by the generation of waste. The hierarchy suggests that the EU’s focus is on the former, whereas the actual operation of the Directive, and the bulk of its provisions, focus on achieving the latter. Turning now to explore the more specific problem of plastic waste, notwithstanding the inclusion of plastic under the waste hierarchy, and a specific Directive on Packaging and Plastic Waste (94/62/EC),49 the 2013 ‘Green Paper on European Strategy on Plastic Waste in the Environment’ notes that divergence remains between legislative measures and management practices.50 Where advances could be observed, Member States with high plastic waste recovery practices (Germany, the Netherlands, Sweden, Denmark, Belgium, and Austria) utilized a division approach.51 Integration of voluntary packaging guidelines, such as the UK ‘Agricultural Waste Plastics Collection and Recovery Programme’ was also noted as having the potential for tangible impact on waste-flows from plastics.52 Similarly, the 2007 ‘Green Paper on Market-Based Instruments for Environment and Related Policy Purposes’ highlighted areas of opportunity based on comparative practices.53 Summarizing the role of market-based instruments (MBIs) in positively incentivizing environmentally conscious practices across a number of sectors, sharing of data on landfill taxes and common criteria for effective minimum rates in accordance with relevant legislation were identified as an area of opportunity. Differential tax rates found in Denmark and Latvia based on packaging composition were put forward as illustrating the potential application of MBIs, and the importance of structural exchange of information.54 In 2015 proposed amendments to the Waste Framework Directive were developed which integrate key comparative legal approaches aimed at promoting sustainable consumption and production.55 First, proposed Article 4(3) requires specific economic instruments which incentivize recovery processes, rather than such being simply promoted, to be reported to the Commission.56 Second, proposed Article 5(1) provides for waste which is the secondary result of a production process, to be deemed not to be waste—a more valuable commodity with less regulatory incumbencies—if in compliance

49 EC, Directive 94/62/EC of 20 December 1994 on packaging and packaging waste, 31 December 1994, OJ L 365/10. 50 European Commission, ‘Green Paper on a European Strategy on Plastic Waste in the Environment’ 7 March 2013, COM(2013) 123 final, at 6, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/ PDF/?uri=CELEX:52013DC0123&from=en. 51 Ibid., at 10. 52 Ibid., at 12. 53 European Commission, ‘Green Paper on Market-Based Instruments for Environment and Related Policy Purposes,’ 28 March 2007, COM(2007) 140 final, available at: http://ec.europa.eu/taxation_customs/ sites/taxation/files/resources/documents/common/whats_new/com%282007%29140_en.pdf. 54 Ibid., at 12–13. 55 EC, ‘Proposal for a Directive amending Directive 2008/98/EC on waste,’ 02 December 2015, COM(2015) 595 final, available at: http://eur-lex.europa.eu/resource.html?uri=cellar:c2b5929d-999e-11e5b3b7-01aa75ed71a1.0018.02/DOC_1&format=PDF. 56 Ibid., at 14; proposed Art. 4(3).

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The European Union 159 with established guidelines.57 Similarly, proposed Article 6(1) incentivizes broader application of recovery o perations through a similar procedure.58 Third, proposed Article 8a(2) empowers Member States to positively incentivize separate collection systems or diversion methods.59 Fourth, proposed Article 8(5) provides for the collection and exchange of information and best practices on practical implementation.60 Lastly, proposed Article 11(1) requires Member States to promote sorting and re-use activities, relating to various waste streams.61 This more economic-focused approach has now been adopted as part of the EU’s circular economy package, and so will form part of the legislative agenda for the coming years.

7.3.2.2 Chemicals The regulation of chemicals is achieved primarily through the Registration, Evaluation, Authorization, and Restriction of Chemicals (REACH) regulation.62 The European Chemicals Agency regulates this in cooperation with the Member States (thus representing a rare example of a case where the EU has itself established an enforcement framework). The Directive is based on the principles of registration, evaluation, authorization, and restriction, and it seeks to determine whether there is a market for certain substances, to assess any dangers and risks associated with those substances, to authorize those substances which appear to pose no risks, and finally to restrict those which do. The general approach is simple and logical. However, the different stages are kept very separate, and this has led to the development of varied standards within each stage, producing confusion and even incoherence in the precise operation of the rules in relation to particular substances.63

7.3.2.3 Water The protection of water quality has been and remains one of the flagships of EU environmental regulation. The effects in Member States has been enormously significant. The initial steps were taken in respect of drinking and bathing quality, but the recent Water Framework Directive64 has attempted to emphasize the interconnected nature of different water sources, and to strive not for negative prohibitions on the introduction of certain substances into the water, but rather on achieving a high standard of ecological quality. The Directive has a broad scope. Article 1 defines its reach and goals: The purpose of this Directive is to establish a framework for the protection of inland surface waters, transitional waters, coastal waters and groundwater which: 57 Ibid., at 14; proposed Art. 5(1). 58 Ibid., at 14; proposed Art. 6(1). 59 Ibid., at 16; proposed Art. 8a(2). 60 Ibid., at 15; proposed Art. 8(5). 61 Ibid., at 18; proposed Art. 11(1). 62 EC, 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, 30 December 2006, OJ L 396/1. 63 See L. Bergkamp (ed.), The European Union REACH Regulation for Chemicals: Law and Practice (Oxford: Oxford University Press, 2013) and E. Stokes and S. Vaughan, ‘Great Expectations: Reviewing 50 years of chemicals regulation in the EU’ (2013) 25 Journal of Environmental Law 411. 64 EC, 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, 22 December 2000, OJ L 327/1.

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160 Markus Gehring, Freedom-Kai Phillips, and Emma Lees (a) prevents further deterioration and protects and enhances the status of aquatic ecosystems and, with regard to their water needs, terrestrial ecosystems and wetlands directly depending on the aquatic ecosystems; (b) promotes sustainable water use based on a long-term protection of available water resources; (c) aims at enhanced protection and improvement of the aquatic environment, inter alia, through specific measures for the progressive reduction of discharges, emissions and losses of priority substances and the cessation or phasing-out of discharges, emissions and losses of the priority hazardous substances; (d) ensures the progressive reduction of pollution of groundwater and prevents its further pollution, and (e) contributes to mitigating the effects of floods and droughts.

This warrants full citation if only to show the scope of the ambition which this Directive represents. Furthermore, the governance arrangements in the Directive are not organized around political or administrative boundaries, but according to river basins. In this respect, the Directive is ecologically driven. As is to be expected, however, the enforcement of these broad goals has been perhaps less ambitious and successful than the approach of the Directive itself.65 Partly, this is a result of the need to rely on the Member States, and partly, and perhaps more fundamentally, it is a result of the very nature of these goals—they are broad and demanding, but more aspirational than specifically applicable to an instant case. Nevertheless, the Directive demonstrates a more ‘joined up’ approach to environmental media than do the conservation instruments, discussed next.

7.3.2.4 Conservation The provisions relating to the protection of endangered species are some of the oldest environmental law measures in the EU. The Wild Birds Directive66 was introduced in 1979, and the Habitats Directive67 in 1992. These controls provide a strong layer of protection to designated sites by requiring that in cases where a plan or project is likely to have a significant effect on the conservation objectives of the site (as defined according to the particular needs of the protected species), then an assessment must be carried out to ensure that the project will not have an adverse effect on the integrity of the site. If such an adverse effect is possible, then the project can only be carried out if there are overriding reasons of the public interest, and if appropriate compensation measures are taken. These Directives are forcefully policed by the CJEU and can act as a significant barrier to development. Nevertheless, the EU has acknowledged that the targets set to halt biodiversity loss by 2020 will not be met. In part, there is a recognition that this is an inherent limitation of a site-based approach to conservation, rather than a more holistic ecosystem 65 See S. Hendry, ‘The EU Water Framework Directive—Challenges, Gaps and Potential for the Future’ (2017) 14 Journal for European Environmental & Planning Law 249. 66 EC, Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds, 26 January 2010, OJ L 20/1. 67 EC, Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, 22 July 1992, OJ L 206/7.

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The European Union 161 approach. In part also it is a reflection of the teething problems that were felt in the early years of the Habitats Directive in particular, with Member States showing some reticence in designation of sites. The operation of these provisions is a good example of how the precautionary principle has worked in practice, with the CJEU consistently relying on this principle to demand a very high level of scientific certainty before it can be concluded that a plan or project will not have a significant effect on the integrity of a site. Per the CJEU in the case of Briels: The assessment carried out under Article 6(3) of the Habitats Directive cannot have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the protected site concerned.68

The effect of this jurisprudence is to render the discretion of public authorities in respect of the scientific assessment essentially illusory, but it does encourage a very high degree, albeit a somewhat static one, of environmental protection. One avenue of valid criticism for the EU in this respect has been that whilst the Directives may prevent further deterioration of habitats, they do not necessarily encourage active and positive management to encourage the improvement of such sites.69 Furthermore, the certainty required in the assessment of projects makes environmental and technological innovation problematic.

7.3.2.5 Climate Change The EU has been an innovator in respect of climate change, and indeed has for a long time labelled itself as a leader in the fight to lower carbon emissions. The Union has pushed Member States to achieve change and introduced the (not wholly successful) carbon trading scheme to attempt to utilize the market as a basis for environmental protection. In 2003 Directive 2003/87/EC was passed,70 creating the EU Emission Trading Scheme (EU-ETS). The difficulties in relying on the market to ensure environmental protection are amply demonstrated by this scheme, not least in the fact that a vast oversupply of permits resulted and continues to result in the permits being underpriced. The effect of this low price is to undermine the incentive to limit carbon emissions. But it does not mean that the introduction of the ETS has been a total failure. The establishment of the regulatory framework within which a market in tradable permits can operate is itself an important step in the direction of harnessing the power of the market to contribute to, rather than hinder, the cause of environmental protection. 68 C-521/12 TC Briels and Others v Minister van Infrastructuur en Milieu ECLI:EU:C:2014:330; [2014] PTSR 1120. See also C-258/11 Peter Sweetman and Others v An Bord Pleanála ECLI:EU:C:2013:220; [2015] EnvLR 18 and C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee, Nederlandse Vereniging tot Bescherming van Vogels v Staatssecretaris Van Landbouw, Natuurbeheer en Visserij (Waddenzee) ECLI:EU:C:2004:482; [2004] ECR I-7405. 69 E. Lees, ‘Allocation of Decision-making Power Under the Habitats Directive’ (2016) 28 Journal of Environmental Law, 191 at 201, and W. Zonneveld and E. Louw, ‘From Transposition to Contextualization: the Co-evolution of EU Nature Conservation Directives and Urban Development in the Amsterdam Region’, paper delivered at AESOP Conference 2014, Utrecht, the Netherlands. 70 EC, Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, 25 October 2003, OJ L 275/32.

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162 Markus Gehring, Freedom-Kai Phillips, and Emma Lees The aviation sector has posed something of a challenge for the regulatory power of the EU, however, notwithstanding the fact that in 2008 the scope of the EU-ETS was broadened by Directive 2008/101/EC to include aviation beginning in 2012.71 Prior to the functional inclusion of the aviation sector into the EU-ETS, a legal challenge was brought before the High Court of Justice of England and Wales which was subsequently referred to the CJEU for consideration.72 The decision of the CJEU first recognized that the scope of the scheme was not the inclusion of all international flights, but restricted to those flights that originate or arrive in the territory of any EU Member State.73 Second, the Court recognized that while a polluting activity may partially originate outside of the EU, this does not negate the inclusion of aviation under the EU-ETS.74 Finally, the Court differentiated the scheme from a fuel ‘duty, tax, fee, or charge’ as it was not aimed at revenue generation nor set a price for emissions, holding in the alternative that as emission allocations were available through auction or the public market the EU-ETS constituted a market based measure.75 Another challenge which the EU has struggled with in regulating its energy market is in trying to strike the balance between the economic aims of the Union, that is to say free movement of goods and services across national boundaries, and facilitating the goals of Member States to subsidize renewable energy providers.76 However, in general, notwithstanding the potentially discriminatory effect of quotas or other similar support systems for renewable energy providers, the CJEU has held that where such measures are designed to contribute to environmental protection and the protection of human health and well-being, they will be permitted despite restraining free trade in this sense.

7.3.2.6 Air Quality It is not just in respect of carbon emissions that the EU’s reach has been felt in respect of air quality. The Air Quality Framework Directive77 is significant, in the same way as the Water Framework Directive, in attempting to control and regulate air quality in a holistic and ecologically focused manner. The Directive operates by requiring that Member States define regions within their territory, allowing for differential treatment according to the prevailing characteristics and industry within that particular region. They must then introduce limits and target values for air quality with respect to certain substances, and any time that these are exceeded, Member States must draft an Air Quality Plan under Article 23 which explains how the situation will be rectified. This requirement was the subject of notable recent litigation in the United Kingdom, and the courts were clear that this plan was not merely a ‘tick box’ exercise, but an essential part of environmental protection with the EU.78 71 EC, Directive 2008/101/EC amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community, 13 January 2009, OJ L 8/3, at Art. 3c. 72 CJEU, Air Transport Association of America, American Airlines Inc., Continental Airlines Inc., United Airlines Inc. v Secretary of State for Energy and Climate Change, 21 December 2011, Case C-366/10. 73 Ibid., at paras 116–18. 74 Ibid., at paras. 128–9. 75 Ibid., at paras. 142–7. 76 See N. de Sadeleer, EU Environmental Law and the Internal Market (Oxford: Oxford University Press, 2014) for analysis of the interaction between environmental protection and free trade. 77 EC, 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, 11 June 2008, OJ L 152/1. 78 See R (ClientEarth No. 3) v Secretary of State for the Environment, Food and Rural Affairs [2018] EWHC 315 (Admin); and R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28.

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The European Union 163 Finally, the Industrial Emissions Directive79 helps to ensure high levels of air quality by requiring that certain activities be carried out only under licence, with the operation of any such facility constrained by the ‘Best Available Technique’ standard, an attempt to encourage innovation and to adopt greener production measures.

7.3.3 Indirect and Other Influences The above discussion considers some of the most significant areas of direct influence of the EU on the environmental law of its Member States. The Union has however also intervened indirectly. That is to say, that there are some Union measures which are premised upon or parallel to either national law or existing transpositions of Union law already in place in a Member State. In this we can count directives relating to mandatory criminalization of certain environmental offences80 and to a certain extent the Environmental Liability Directive, which, in parts, depends upon prior categorizations of land, for example, under conservation regulations. There is, finally, a third level of influence which the Union has on Member State environmental law. The Union exerts an enormous amount of influence through its agricultural and fisheries policies and these have had huge implications for the practical reality of, in particular, biodiversity, within the Union. However, although these policies influence environmental law and policy in the Member States, they are not themselves environmental in the sense that they are not directed at environmental problems per se.

7.4 Implementation Framework 7.4.1 Overview The implementation of EU environmental law is unusual insofar as it is a combination of Commission oversight, and Member State implementation, but with no individual agency responsible for environmental implementation per se. There is no administrative agency with environmental enforcement powers, for example, except as against Member States themselves through the Commission. The European Environment Agency is a scientific body with no enforcement powers, its role being largely to advise the Commission. The lack of formal enforcement and implementation powers has not, however, prevented the EU in taking a lead in ensuring effective operationalization of its rules. The driving force in this respect has been the Commission, but the supporting role which the Courts of the European Union, and the Court of Justice in particular, have played in this, should not be underestimated.81 79 EC, Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control), 17 December 2010, OJ L 334/17. 80 EC, 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, 6 December 2008, OJ L 328/28. 81 For more detail on the administrative landscape in EU environmental law, see L. Krämer, EU Environmental Law (London: Sweet & Maxwell, 8th edn. 2016), chapter 2.

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164 Markus Gehring, Freedom-Kai Phillips, and Emma Lees

7.4.2 Administrative Enforcement and the Role of the Member States The European Commission has responsibility for ensuring compliance with EU law and may start infringement proceedings against a Member State when it suspects breach of EU rules. Thus, the Commission, and not the European Environment Agency, is tasked with the enforcement and oversight of environmental law in the EU. There is also a form of private enforcement of EU environmental law and that is by the attempts of individuals to rely on the doctrine of direct effect, and the obligation of national courts to comply with the decisions of the CJEU, so that individuals can insist that a court of a Member State simply applies EU environmental law, even in cases where the national legislature or executive has entirely failed to implement any of the rules required of them.82 Again, this points to the parallel nature of Union controls. They depend upon Member State action but individuals and civil society organizations are, in effect, delegated enforcers of these standards within their states. It is partly for this reason that the EU puts such great emphasis on compliance with the Aarhus Convention by the Member States, as this facilitates the oversight and accountability processes.

7.4.3 The Role of the Court of Justice of the European Union The CJEU has played a crucial role in the evolution of environmental law in the EU. Grounded in parallel principles of unity and diversity, the CJEU is vested with the delicate task of providing uniform legal interpretation while respecting the diversity of values across the EU, and is granted the authority to engage in comparative analysis of the laws of Member States as well as interpretation of the relevant Union rules.83

7.4.3.1 Foundational Authority Creation of the common market aims to foster peace, prosperity, and sustainable development through the promotion of solidarity, environmental protection, and respect for the rich ‘cultural and linguistic diversity’ found across the Union.84 The CJEU influences environmental law through two significant conduits: (i) interpretation and applications of the general principles of the EU, and (ii) clarifying specific provisions of EU law such as Directives. The core functions of the court are outlined in Article 19 TEU, namely the interpretation and application of the Treaties of the EU,85 a function which it has been vested with since the inception of the common market.86 As indicated in Algera v Common Assembly (1957), for the Court to administer justice, it must have recourse to the ‘rules acknowledged by the 82 This is a direct result of the supremacy of EU law. 83 K. Lenaerts, ‘The Court of Justice and the Comparative Law Method,’ ELI Annual Conference, (9 September 2016), at 1–2, available at: https://www.europeanlawinstitute.eu/fileadmin/user_upload/ p_eli/General_Assembly/2016/Conference_Materials_for_participants/Keynote_speeches/K._ Lenaerts_ELI_AC_2016.pdf. 84 Article 3(3) TFEU. 85 Article 19(1) TFEU. 86 Article 164 Treaty of Rome.

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The European Union 165 legislation, the learned writing and the case-law of the member countries’.87 Similarly, in Brasserie du Pêcheur and Factortame the Court noted that the process of judicial inquiry was to be conducted in accordance with generally accepted methods, with reference to fundamental and general principles of Member State legal systems.88

7.4.3.2 Influence in Practice This explanation as to the official role of the CJEU, that is, as responder to preliminary references and arbiter in cases of actions again Member States by the Commission, does not necessarily reflect the role which the Court has had in practice. Rather, this Court has been, in effect, the leading voice in the practical enforcement and operation of environmental law across Europe. Much of the innovative and far reaching aspects of EU environmental law are supported by the highly purposive approach which the Court takes to interpretation, whatever the route by which a question of law reaches it. For example, the reach of that power has been felt in relation to the definition of waste and in the mandated approach to questions of assessment under the Habitats and Wild Birds Directives as discussed above. This ‘environment-focused’ approach has not, however, necessarily produced a harmonious picture. Rather, the style of the CJEU’s judgments (abstracted, rather than discursive) has on occasion produced jurisprudence which is difficult to interpret and apply. The consequence of this is that the approach of the CJEU in some contexts actually has the potential to stifle innovative environmental approaches due to their very firm insistence on the certainty of scientific proof in cases of potential environmental harm, in line with the precautionary principle. In addition to these criticisms of the outcome of many CJEU cases, there is also a very powerful argument that the CJEU’s own approach to litigation does not meet with many of the requirements which it sets for the Member States. Thus, for example, the standing rules for a direct action in front of the CJEU against organs of the EU itself are very narrow. The so-called Plaumann89 test requires not only that the claimant be a direct victim of any measure, but that they suffer individualized effects of this (‘individual and direct concern’). This means that in cases where the claimant is merely one of a class of victims, that is, in the most serious and egregious breaches of environmental protection, they are highly unlikely to be able to bring an action before the CJEU.90 Similarly, NGOs would probably fail on both grounds, not themselves being directly affected by an act of the Union. Furthermore, in actions of this kind, there are no special costs rules in place (as there are in most Member States to reflect the requirements of the Aarhus Convention). Thus, in actions before the CJEU the ‘loser’ must pay the costs of the ‘winner’, making such litigation potentially prohibitively expensive.

87 CJEU, Algera v Common Assembly, (Joined cases 7/56 and 3 to 7/57), 12 July 1957, at 55, available at: http://curia.europa.eu/juris/liste.jsf?num=7/56&language=en. 88 CJEU, Brasserie du Pêcheur SA v Federal Republic of German and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and Others, (Joined cases C-46/93 and C-48/93), 5 March 1996, at para 27, available at: http://eur-lex.europa.eu/resource.html?uri=cellar:c282fcda-29a2-4ba5-99a6da45b05cb305.0002.03/DOC_1&format=PDF. 89 Case 25/62 Plaumann v Commission [1963] ECR 95. 90 See Client Earth complaint discussed above under the Aarhus Convention.

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166 Markus Gehring, Freedom-Kai Phillips, and Emma Lees This may come as a surprise, given what was said above about the EU’s proactive stance in ensuring Union-wide compliance with Aarhus, but the CJEU has, following the decision in Slovak Bears,91 consistently held that Article 9 of the Convention is not sufficiently precise to allow it to judge the compliance of the Union with its requirements. However, the Aarhus Compliance Committee has recently commented on the EU’s practice, and has concluded that such practice is non-compliant.92 The Commission initially suggested that the EU ought not to be bound by Aarhus in the same way as Member States due to its being a special kind of legal order. However, the Council backtracked from this position, and accepts that the EU must change. This change, it seems, is on ice until the new presidency in 2021.

7.4.3.3 Comparative Environmental Law in the CJEU: Modes of Engagement Finally, in respect of the CJEU, it is also useful to conclude this chapter by looking at the relationship between the Union and its Member States in the other direction—how does the Union respond to innovations at Member State level, and when will the Court take account of this? Comparative environmental law arises in the work of the CJEU in three key ways: (i) direct reference in a judgment, (ii) use of comparative study, and (iii) through reference in the Opinion provided by the Advocate General. Adoption of comparative legal techniques at the CJEU empowers the Court to evolve legal reasoning with societal change based on areas of convergence, and fosters continued alignment with the values and culture underpinning the legal frameworks of Member States.93 In Procureur de la République v Association de Défense des Brûleurs d’Huiles Usagées the Court considered the scope of obligations on collectors of waste oil under the relevant Directive.94 The Court, in considering the case reviewed written submissions provided by the governments of Germany, France, and Italy.95 Pursuant to Article 23 (formerly Article 20) of the Statute of the Court, written submissions may be provided by—in addition to the Parties—Member States, the Commission, the relevant body which passed the law, and where applicable, non-Member States as well.96 The crucial question before the Court concerned the alignment of a prohibition under French law relating to the burning of fuel oil as a means of disposal with the requirements of the Directive which provided that either burning or regeneration could be used.97 In concluding that environmental protection was indeed an important policy objective of EU law, and that the French were allowed to adopt

91 See Joined Cases C-401/12 P to C-403/12 P Council v Vereniging Milieudefensie and others, EU:C:2015:4, and Joined Cases C-404/12 P and C-405/12 P Council v Stichting Natuur en Milieu and Pesticide Action Network Europe, EU:C:2015:5. 92 Aarhus Compliance Committee, ACCC/C/2008/32. 93 Lenaerts 2016, at 15. 94 CJEU, Procureur de la République v Association de Défense des Brûleurs d’Huiles Usagées, 7 February 1985, Case 240/83, at 539–41. 95 Ibid., at 541. 96 Protocol No. 3 on the Statute of the Court of Justice of the European Union, 30 March 2010, OJ C 83/210, Art. 23, available at: http://curia.europa.eu/jcms/upload/docs/application/pdf/2008-09/statut_ 2008-09-25_17-29-58_783.pdf. 97 Procureur de la République v Association de Défense des Brûleurs d’Huiles Usagées, at 545.

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The European Union 167 the least environmentally impactful method provided for in the Directive, the Court referenced the domestic frameworks in the Member States as supporting this finding.98 Additionally, comparative law has been used to interpret the appropriate legal basis for environmental measures. In Commission of the European Communities v European Parliament and Council of the European Union, the Court considered the scope of Member State legislation99 implementing substantive provisions of the Basel Convention on Waste,100 as a basis to determine if the correct legal basis under EU law had been used in developing the Union’s own legislation.101 Similarly, in Opinion of the Court the Court utilized the treaty provisions of the Cartagena Protocol on Biosafety to the Convention on Biological Diversity102 to determine the appropriate legal basis.103 Finally, a comparative study of legislative measures has been utilized to contrast an approach adopted by a Member State. In Commission v Spain,104 Advocate General Van Gerven in his Opinion scrutinizes claims that Spain should be released from conservation obligations under the Wild Birds Directive (70/409EEC) at a site due to a predominance of protected areas in comparison to other Member States. Dismissing this claim, a brief comparative analysis is provided to c ontextualize the scale of conservation efforts in relation to other Member States.105 Opinions provided by the Advocate General play a unique role in integrating comparative environmental law into the work of the CJEU. The Advocate General provides reasoned submissions by way of Opinion to assist the Court, which, while non-binding, remain influential.106 In Commission of the European Communities v Council of the European Union the Court was asked to consider the legal basis for establishment of criminal penalties for environmental damage through Council Framework Decision 2003/80/JHA.107 The Court identified interventions provided by several Member States,108 as well as considering 98 Ibid., at 24–5, 30. 99 Opinion of Advocate General Poiares Maduro, Commission v Parliament, Case C-411/06, para. 33. 100 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 22 March 1989, 1673 UNTS 57. 101 CJEU, Commission of the European Communities v European Parliament and Council of the European Union, 8 September 2009, Case C-411/06, paras. 2–3, 77. 102 Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 29 January 2000, 2226 UNTS 208. 103 CJEU, Opinion of the Court, 6 December 2001, Avis 2/00, 2001 I-09713, para. 43. 104 CJEU, Commission of the European Communities v Kingdom of Spain, 2 August 1993, Case C-355/90. 105 Opinion of Advocate General Van Gerven, Commission v Spain, 9 June 1993, Case C-355/90, para. 15, fn. 15. 106 A. Albors-Llorens, ‘Securing Trust in the Court of Justice of the EU: The Influence of the Advocates General’ (2012) 14 Cambridge Yearbook of European Legal Studies 509; E. Sharpston, ‘The Changing Role of the Advocate General’ in A. Arnull, P. Eeckhout, and T. Tridimas (eds.), Continuity and Change in EU Law: Essays in Honour of Sir Francis Jacobs (Oxford: Oxford University Press, 2008); C. Arrebola, A. J. Mauricio, and H. Jiménez Portilla, ‘An Econometric Analysis of the Influence of the Advocate General on the Court of Justice of the European Union,’ University of Cambridge Legal Studies Research Paper Series, Paper No. 3/2016 (January 2016). 107 CJEU, Commission of the European Communities v Council of the European Union, 13 September 2005, Case C-176/03, paras. 1–11. 108 Ibid., at para. 16; Submission provided by: the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Kingdom of the Netherlands, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, and the United Kingdom of Great Britain and Northern Ireland.

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168 Markus Gehring, Freedom-Kai Phillips, and Emma Lees comparable criminal penalties in the sphere of fisheries and transportation policy.109 Additionally, comparative environmental law played a significant theme in the Opinion of Advocate General Ruiz-Jarabo Colomer.110 Numerous international instruments are identified to illustrate the globalization of environmental protection measures, including: the Stockholm Declaration (1972), the World Charter for Nature (1982), the Rio Declaration (1992), and the ‘Rio Treaties’ and their Protocols.111 Further, concepts of ‘sustainable development’ and ‘quality of life’ are explored through consideration of domestic constitutional or legislative instruments from several Member States: Germany (responsibility for future generations), Spain and Sweden (right to nature), and Finland, Italy, Greece, Portugal, and the Netherlands (duty to protect environment).112 An additional example is provided in The Queen v Ministry of Agriculture, Fisheries and Food where the United Kingdom refused to grant licences to Spanish importers, due to fears of inhuman treatment of exported animals in slaughterhouses.113 In considering the potential scope of state lability for legislative acts, Advocate General Léger in his Opinion, recognizes that a number of Member States are not subject to liability for legislative acts including: Germany, Belgium, Ireland, Luxembourg, and the United Kingdom.114 Others, including Spain, France, Greece, Denmark, Portugal, and the Netherlands are subject to such liability, leading to the conclusion that there is no general principle common to Member States relating to state liability.115 Additionally, in exploring the potential for damages, French judicial reasoning is identified as informative,116 and domestic rules relating to state liability are compared to those of Community law.117 Lastly, in Commission of the European Communities v United Kingdom, which considers the implementation of the Habitats Directive (92/43/EEC) outside territorial waters,118 Advocate General Kokott notes in her Opinion the scope of environmental protections provided in the United Nations Convention on Law of the Sea (UNCLOS)119 and the Convention on Biological Diversity,120 asserting that given the i nternational frameworks, no reasonable explanation exists as to why a Member State should be freed of the obligations of the Habitats Directive where it exercises sovereign power.121 The application of comparative techniques at the CJEU continues to nurture the evolution of EU environmental law, cultivating the unifying shroud which supports continued e nvironmental stewardship and leadership both domestically and internationally. In the recent Bialowieza Forest case, the CJEU ordered Poland to pay the record sum of 100,000 Euros per day that it allowed large-scale logging

109 Ibid., at para. 21. 110 Opinion of Advocate General Ruiz-Jarabo Colomer, 26 May 2005, Commission v Council, Case C-176/03. 111 Ibid., at paras. 61–5. 112 Ibid., at paras 66–9. 113 CJEU, The Queen v Ministry of Agriculture, Fisheries and Food: ex parte: Hedley Lomas (Ireland) Ltd, 22 May 1996, Case C5/94, paras. 2–3. 114 Opinion of Advocate General Léger, 20 June 1995, Queen v Agriculture, Case C-5/94, para. 98. 115 Ibid., at paras. 99–100. 116 Ibid., at paras. 117–27. 117 Ibid., at paras. 179–80. 118 CJEU, Commission of the European Communities v United Kingdom, 20 October 2005, Case C-6/04. 119 United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 397. 120 Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79. 121 CJEU, Opinion of of Advocate General Kokott, 9 June 2005, Commission v United Kingdom, Case C-6/04, paras. 134–6.

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The European Union 169 of Europe’s largest woodland with wild bison because Poland had violated EU law.122 Commentators hailed this judgment as indicating a new assertiveness by the Court of Justice in environmental matters.123

7.5 Conclusion Comparative law plays a robust role in the development and continued evolution of the European legal tradition, and environmental legislation for the Union, but the Union itself has also had an unparalleled influence on the laws within the Member States. A rich diversity of perspectives underscores the EU and its environmental regulation. It places particular importance on maintaining and learning from different Member States, while the Union experience as a whole enduringly revitalizes the ties of shared environmental objectives and imperatives. Integration of the precautionary principle, which find historical parallels to John Snow’s experiences with water-born cholera in 1854,124 and is derived from the German ‘Vorsorgeprinzip’ in the mid-1970s,125 is now a prime aspect of the EU’s domestic and i nternational environmental practices. Grounded in practical considerations aiming to actualize the harmonization of the EU legal regime based on common principles of the Member States, comparative law has grown to become a principal influence in the legislative and judicial process. Application of comparative interpretive techniques at the CJEU provide the Court with a modality allowing legal reasoning to evolve with societal norms. Utilization in the legislative development process provides a mechanism for stakeholder consultation and consensus-building. The export of European environmental values through adoption of complementary legal measures continues to foster EU environmental leadership domestically and internationally.

7.6 Selected Bibliography Heyvaert, V. et al., ‘With Reference to the Environment: The Preliminary Reference Procedure, Environmental Decisions and the Domestic Judiciary’ (2014) 130 Law Quarterly Review 413. Kingston S., V. Heyvaert, and A. Čavoški, European Environmental Law (Cambridge: University Press, 2017). Kramer, L., EU Environmental Law (London: Sweet & Maxwell, 8th edn. 2016).

122 CJEU, Judgement, 17 April 2018, Commission v Poland, Case C‑441/17. 123 IUCN News, Białowieża Forest Case: Judgement by Court of Justice of the EU, 15 May 2018, available at: https://www.iucn.org/news/world-commission-environmental-law/201805/bia%C5%82owie%C5% BCa-forest-case-judgement-court-justice-eu. 124 D. Gee et al., Late Lesson from Early Warnings: The Precautionary Principle 1898–2000, (Copenhagen: European Environment Agency, 2001), 15. 125 M. Stevens, ‘The Precautionary Principle in the International Arena’ (Spring 2002) 2(2) Sustainable Development Law & Policy 13; S. Boehmer Christiansen, ‘The Precautionary Principle in Germany: Enabling Government’ in T. O’Riordan and J. Cameron (eds.), Interpreting the Precautionary Principle (London: Earthscan Publications Ltd, 1994).

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170 Markus Gehring, Freedom-Kai Phillips, and Emma Lees Lee, M., EU Environmental Law, Governance and Decision-Making (Oxford: Hart Publishing, 2nd edn. 2014). De Sadeleer, N., EU Environmental Law and the Internal Market (Oxford: Oxford University Press, 2014). Scotford, E., Environmental Principles and the Evolution of Environmental Law (Oxford: Hart Publishing, 2017). Van Calster, G. and L. Reins, EU Environmental Law (Cheltenham: Edward Elgar, 2018).

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chapter 8

Fr a nce Laurent Neyret

8.1 Introduction

172

8.2 Allocation of Powers

173

8.2.1 The Codification of French Environmental Law 8.2.2 The Constitutionalization of French Environmental Law 8.2.3 Integration of International and European Law into French Environmental Law 8.2.4 The Evolution of Environmental Governance in France

8.3 Structure and Substance of Environmental Law

8.3.1 Environmental Public Law 8.3.2 Environmental Private Law 8.3.3 Need to Reinforce the Coordination of French Public and Private Environmental Law

173 173

174 176

177 177 179

180

8.4 Implementation Framework

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8.5 Selected Problems

182

8.6 Conclusion

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8.7 Selected Bibliography

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8.4.1 Central Government 180 8.4.2 Local Governments 180 8.4.3 Administrative Bodies and Agencies 181 8.4.4 The Role of French Courts in the Protection of the Environment181

8.5.1 The Application of the Precautionary Principle 182 8.5.2 Remediation of Ecological Damage 183 8.5.3 The Protection of the Environment through Criminal Law 185 8.5.4 Business: A Major Actor for the Protection of the Environment187

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172 laurent neyret

8.1 Introduction Environmental law is an autonomous area of law that is a driving force for transformation. First, environmental law has transformed other areas of law, both public and private. This is the result of the integration principle laid down in Article 6 of the Treaty on the European Union (TEU), which introduces a vertical dimension, by which states are the guardians of the environment, as well as a horizontal dimension, by which private actors participate in the protection of the environment. Second, French environmental law itself has been subject to transformation. Its rules have significantly expanded, but without any general consistency, thereby creating further disorder, particularly regarding applicable sanctions in case of non-compliance with environmental rules. In addition, environmental law has become barely accessible and, therefore, less effective and efficient, seemingly a paradox if one considers the large number of rules connected to the environment. It is now time to make French environmental law more consistent, legitimate, and, therefore, more effective. Towards this purpose, the French government has initiated a modernization trend that has taken different forms, including simplification. For instance, the government has reduced the systematic use of environmental assessments when projects do not have a significant impact on the environment.1 In addition, while projects subject to several permits were also subject to several and redundant application files, these projects are now subject to a single permit and a single application file, reviewed by a single authority.2 The present chapter does not aim to describe in a comprehensive manner the state of French environmental law. It aims mostly at describing the important aspects of this area of law, whether similar or distinct from foreign laws, in order to grant a better understanding of the critical issues and modalities of the reorganization of French law. The first section of this chapter considers the allocation of powers with regards to environmental law in France. It describes the major trends in the construction of environmental law: its codification and constitutionalization, the integration of international and European law into French law, and the expansion of environmental governance to private law instruments. The second section provides an outline of the structure and substance of environmental law in France. The objective is to properly describe private and public law instruments that are involved in the protection of the environment. This section also emphasizes the need for strengthening the articulation between public and private law for more consistency. The third section is related to the application of environmental rules through the central government, local governments, specialized agencies, and courts. The final section will provide an analysis of some selected issues which have been recently addressed in French environmental law: the application of the precautionary principle, the remediation of ecological damage, the protection of the environment through criminal law, and the significance of the private sector in the protection of the environment.

1 Décret n° 2016-1110 du 11 août 2016 relatif à la modification des règles applicables à l’évaluation environnementale des projets, plans et programmes. 2 Ordonnance n° 2017-80 et décrets n° 2017–81 et n° 2017–82 du 26 janvier 2017 relatifs à l’autorisation environnementale.

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france 173

8.2 Allocation of Powers The first signs of French environmental law emerged during the Middle Ages with safety measures aimed at ensuring water purification and the removal of waste, noxious odours and possible sources of epidemics, such as butcheries, from city centres. Later, a decree of 1810 related to unhealthy and dangerous factories and ateliers laid down the foundations of the current framework for preventing industrial pollution. These pieces of legislation concern, above all else, the protection of human health. It was only in the 1970s that environmental law really emerged and became autonomous, due to a growing awareness of environmental degradation and resource depletion resulting from human activities. In this respect, the French Ministry of Environment was created in 1971. More specifically, French environmental law has built upon a succession of industrial accidents, such as the Amoco Cadiz and Erika oil spills and the AZF factory explosion. This has led to an abundance of complex rules without any general consistency, thereby hindering the effectiveness of environmental law.

8.2.1 The Codification of French Environmental Law It quickly became obvious that there was a need for an environmental code. First, the aim of codification is to strengthen the effectiveness of environmental law, since when rules are highly dispersed and barely accessible, they are thus less compelling. Second, codification is a means for preventing overlapping and contradictory rules. Lastly, the adoption of an environmental code undeniably contributes to the recognition of environmental issues as a social issue. The French Environmental Code was adopted in 2000. It is the compilation of forty environmental laws. Despite the fact that it constitutes a breakthrough for the status of the environment within our legal system, the scope of the Code is somewhat limited, which is unfortunate. Indeed, the Environmental Code is not all environmental law. For example, the rules related to nuclear energy, mining, and forest protection are not part of the Environmental Code.

8.2.2 The Constitutionalization of French Environmental Law However, French environmental law has become increasing constitutionalized. This constitutionalization of the protection of the environment is the result of President Jacques Chirac’s political will to reiterate France’s commitment towards the environment. The Charter for the environment was added to the Constitution in 2005. This legal document is the only constitutional text in the world entirely dedicated to the protection of the environment. Among the principles enshrined in the Charter are the ‘right to live in a balanced environment respectful of health’ (Article 1), the prevention principle (Article 3), the

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174 laurent neyret principle of remediation for environmental damage (Article 4), the precautionary principle (Article 5), and the right to information and public participation (Article 7). According to the Constitutional Council, ‘[a]ll the rights and duties provided for in the Charter have a constitutional value and are compelling upon public authorities and administrative agencies’.3 As a result, law-makers must comply with the principles embedded in the Charter or else laws passed by the Parliament are likely to be struck down by the Constitutional Council. The adoption of the Charter requires legislators to decide among diverging interests. They will, for instance, have to reconcile the right to a healthy environment with the right to property or the precautionary principle with economic freedoms. In particular, the Constitutional Council will investigate whether the law-maker has reconciled ‘the protection and promotion of the environment, economic development, and social progress’ (Article 6) in order to give shape to sustainable development. The list of persons who must respect the obligations put forth in the Charter for the Environment has been expanded by courts to include more than just public authorities. In this respect, the Constitutional Council relied on the right to a healthy environment and the duty to preserve the environment to state that everyone has ‘a duty of vigilance to prevent environmental harms that could result from his/her activity’.4 Therefore, the Charter for the Environment produces a ‘horizontal effect’ and applies to relationships between private persons.

8.2.3 Integration of International and European Law into French Environmental Law International law has also shaped French environmental law. The influence of international law on French law is evident in both the making and implementation of law at the national level. On the one hand, the integration of international environmental law is real and direct, as France has ratified the main international conventions contributing to the protection of the environment. Beyond this, we can highlight the indirect and diffuse impact of international environmental law through the adoption of the Charter for the Environment of 2005, which is now part of the French Constitution. Indeed, this document draws inspiration directly from principles that have been recognized under international environmental law, regardless of the implementation of any particular convention. In 2016, French law introduced the non-regression principle to the Environmental Code, according to which the legal protection of the environment must improve continuously, based on current scientific and technical knowledge. This emerging principle derives from the Montego Bay Convention on the Law of the Sea, of which Article 311-6 provides that: ‘States Parties agree that there shall be no amendments to the basic principle relating to the common heritage of mankind set forth in article 136 and that they shall not be party to any agreement in derogation thereof ’. In France, the Council of State applied the non-regression principle for the first time on

3 Cons. Const. 19 juin 2008, n° 2008–54. 4 Cons. Const., 8 avril 2011, n° 2011–116; Cons. Const., 10 novembre 2017, n° 2017–672.

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france 175 December 8, 2017.5 In this case, the Administrative Supreme Court struck down two provisions of the Environmental Code that loosened previous regulations by exempting operators of racing and test tracks for motorized vehicles and some sports and leisure equipment from environmental assessment even though such projects could have significant impacts on the environment. On the other hand, the influence of international environmental law is made clear from its implementation at the national level. The applicability of international law is based upon the superiority of treaties over national laws. When an international agreement has been duly ratified, clearly defines to whom rights and obligations provided for in the agreement apply (states and/or individuals), and is specific enough with regards to its content, this agreement is then directly applicable under French law. Otherwise, the agreement is not directly applicable and can only come into effect after being implemented into French law to specify the modalities of its application. In France, self-sufficiency of a Treaty is dealt with article by article, which is an additional source of complexity and legal uncertainty. Furthermore, many major multilateral environmental agreements cannot be invoked in courts by private persons. Such a narrow approach is open to serious criticism. In particular, even though these international agreements lay down obligations on states, they nonetheless confer a right to individuals to see public authorities compelled by their obligations on environmental matters. This is why it has been proposed that multilateral environmental agreements benefit from a presumption of self-execution.6 It is worth noting that to reinforce protection of the environment, French courts have not hesitated to apply French laws more stringently than the convention they were supposed to incorporate. In the Erika case, a French law of 1983 was held to be consistent with the Convention for the Prevention of Pollution from Ships (MARPOL, 1973) even though the French law provided a broader list of persons likely to be held criminally liable for an offence of maritime pollution and provided a more limited list of defences than the MARPOL convention.7 The ruling of the French court is, inter alia, based upon the Vienna Convention on the law of treaties of 1969, according to which an international agreement should be interpreted ‘in light of its object and purpose’. The purpose of the Convention is indeed to prevent pollution, to put an end to intentional pollution, and to reduce accidental discharges as much as possible. Regarding the influence of European law on French environmental law, it is possible to argue that, so far, a large part of national law is the result of the transposition of European directives. Before the adoption of European directives though, France had long had existing legislations that prefigured European norms. We can mention, as an example, the law relating to site contamination, which dates from the nineteenth century, or criminal penalties in case of non-compliance with environmental law, which are similar to the sanctions provided for in Directive 2008/99 of 19 November 2008 on the protection of the environment through criminal law. In any case, French law needed to be rewritten to correctly transpose these newly enacted European norms. The transposition of directives, which have multiplied over the past few years in the area of the environment, requires in most cases that 5 CE, 8 décembre 2017, n° 404391. 6 Rapport, ‘Renforcer l’efficacité du droit international de l’environnement. Devoirs des Etats, droits de individus’, Le Club des juristes, Novembre 2015. 7 Cass. crim. 25 septembre 2012, n° 10–82.938.

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176 laurent neyret states ‘copy’ the text of the directives. France is no exception and follows this practice. This is true, for instance, of the French law of 1 August 2008 related to environmental liability, which precisely replicated Directive 2004/35 on this same matter. The adaptation of French law is limited to some modifications to fit with France’s administrative structure. For instance, French law identified the ‘prefect’ as the ‘competent authority’ under the European directive to oversee the implementation of preventive and remediation obligations by the operator responsible for the environmental damages.

8.2.4 The Evolution of Environmental Governance in France Originally, the protection of the environment was exclusively part of public law, reflecting a top-down approach to regulation. This can be partly explained by the fact that the environment is perceived as a public good placed under the protection of the state. This protection was essentially enforced through administrative regulations related to, inter alia, hazardous activities, water, waste, hunting, and fisheries. Then, at the beginning of the 1990s, the protection of the environment evolved with the growing significance of private law instruments, showing that private law may promote collective interests as well. The law was no longer decreed by public authorities but was coming from the bottom. Accordingly, we can suggest that the top-down approach has recently been complemented by a bottom-up approach to ensure better protection of the environment. Among the multiple private tools to protect the environment we can mention contracts, liability, and other traditional business law instruments. The evolution of environmental governance in France is also marked by the emergence of new tools to serve the protection of the environment, such as the greenhouse gas market and the requirement that major companies include environmental information in accounting documents. The French Parliament has also introduced through a law of 2016 the possibility for an economic operator that causes an injury to biodiversity to fulfil its restoration obligation through the purchase of ‘compensatory units’ from the manager of a natural compensatory site approved by the government,8 drawing inspiration from mitigation banking in the United States. A widening of the range of actors participating in public decision-making also marks French environmental governance. In this respect, in 2007, in an innovative manner, President Nicolas Sarkozy gathered representatives from the State, local authorities, NGOs, employers and employees to work on the following six themes: climate change, biodiversity and natural resources, health and environment, production and consumption, democracy and governance, and competitiveness and employment. This event was called ‘Grenelle de l’environnement’ in memory of the Grenelle Accords, which were concluded at the Ministry of Labour on rue de Grenelle in Paris in the presence of the g overnment, and labour and employers’ unions to put an end to the protests of May 1968. The proposals of the working groups were then submitted for advice to the Parliament, p olitical parties, and the public. They eventually gave rise to two significant laws regarding the environment.9 8 Article L. 163–1 et s. du Code de l’environnement. 9 Loi Grenelle I du 3 août 2009 de programmation relative à la mise en œuvre du Grenelle de l’environnement; Loi Grenelle II du 12 juillet 2010 portant engagement national pour l’environnement.

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8.3 Structure and Substance of Environmental Law French environmental law follows a cross-disciplinary approach at the confluence of public and private law. Historically, the first environmental rules aimed at protecting public health and safety and preventing nuisances caused by industrial operations. Unsurprisingly, the favoured method of recourse for environmental protection was through administrative regulations. As we will explore, French environmental law is widely part of public law. Progressively though, the use of private law instruments has grown, triggered by economic and free trade concerns. The ninetieth Annual Meeting of the French notaries put this evolution in a nutshell, holding its session on the topic: ‘Protection of the environment, from coercion to contract’.10

8.3.1 Environmental Public Law Environmental public law consists, above all else, of administrative regulations by which public authorities regulate private activities in the general interest of the public or to maintain the ecological public order. In this command and control approach, based on a strong regulatory framework, the scale of obligations imposed on private actors ranges from limited restrictions to complete prohibition of their activities. Regarding natural conservation, the law lays down a general principle, according to which: [a]nimal and vegetal species, the diversity and ecological balance to which they contribute are part of the common heritage of the nation. Their recognition, protection, promotion, restoration, remediation, and management, are of general interest.11

This principle serves as a rationale for the application of the regulatory framework. In practice, French law combines the ‘prohibition, prior authorization, regulation, [and] control’12 of activities that have an impact on the environment. Regarding animals in particular, it is worth noting that their legal status has evolved since a law of 2015 was passed. Animals are no longer movable or immovable assets within the meaning of the Civil Code but are now sensitive, living beings.13 This was a symbolic reform that removed animals from the category of ‘assets’ without having them enter the category of ‘persons’ instead. Time will tell if this evolution has in practice actually strengthened animal protection.

10 90ème Congrès des Notaires de France, Protection de l’environnement. De la contrainte au contrat, Nantes, 8–11 mai 1994, éd. Notaires de France. 11 Article L. 110–1 I et II du Code de l’environnement. 12 A. de Laubadère, ‘Chronique générale de législation’ (1976) Actualité Juridique Droit Administratif 521. 13 Article 524 du Code civil.

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178 laurent neyret Pollution and nuisance are also widely addressed through administrative regulations. ‘Classified facilities for the protection of the environment’ is the main administrative regulation concerning environmental protection. Regulated facilities are those which: present hazards or drawbacks for the convenience of the neighbourhood, or for public health and safety, or for agriculture, or for the protection of nature and the environment, or for the conservation of sites and monuments or elements of the archaeological heritage.14

These facilities are classified in a ‘nomenclature’ and must comply with either more or less stringent environmental rules, depending on the seriousness of the risk they present to the public. Regulations governing classified facilities for the protection of the environment are supplemented by additional sectoral regulations regarding water, air, waste or quarries, or more recently, risks associated with nanoparticles. In regards to air protection, the law on air of 1996 enshrined the right of each person to breathe healthy air. Later, the Grenelle II law of 2010 specified that: ‘[t]he protection of the atmosphere includes the prevention of air pollution and the fight against greenhouse gas emissions’.15 Air protection is implemented through atmospheric protection plans, which are compulsory in urban areas with populations of over 250,000. In practice, these plans are only somewhat effective, as demonstrated by the multiplication of pollution peaks in many of the main French cities such as Paris and Lyon. First, in a case where an environmental organization filed a complaint following massive air pollution in Paris, the Court held that the prefects charged with the implementation of the atmospheric prevention plan had a ‘best effort’ obligation, not an obligation of results, to reach the pollution reduction targets.16 In 2017,17 the Court changed its position, ruling that exceeding pollution limit values in major cities such as Paris, Marseille, and Toulouse was inconsistent with the Environmental Code. Therefore, the Court ordered the French government to take all necessary steps to reduce pollution below the limit values and to inform the European Commission within the shortest time possible in order to comply with Directive 2008/50 on ambient air quality and cleaner air for Europe. Following this decision, the French government presented new measures to fight air pollution to the European Commission. The latter considered that those were not sufficient and, in May 2018, brought an action before the Court of Justice of the European Union (CJEU) against France, as well as Germany and the United Kingdom, for failure to fulfil their obligations under Directive 2008/50. Regarding climate change, the issue has been a ‘national priority’ since 2001.18 France’s commitment in this area is further demonstrated by the fact that Paris hosted COP21, which ended with the signing of the Paris Climate Agreement. This resulted in a large number of measures being integrated into law, in particular, the law related to energy transition and green growth of 17 August 2015, which involved the coordinated action of citizens, corporations, subnational entities, and the government. These measures concern in particular 14 Article L. 511–1 du Code de l’environnement. 15 Article L. 220–1 du Code de l’environnement. 16 CE, 10 juin 2015, n° 369428. 17 CE, 12 juillet 2017, Association Les amis de la Terre France, n° 394254. 18 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.

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france 179 the refurbishment of old buildings, the development of energy performance of new buildings, the development of clean transportation, the struggles against wastage, the promotion of the circular economy, and the development of renewable energy. It is worth mentioning that unlike in other countries, no climate action has been filed in France to date, whether against the government or multinational corporations. At most, the City of Paris announced in February 2018 that the ‘feasibility’ of filing a lawsuit against oil companies in connection with their responsibility in affecting climate change would be examined, following in the footsteps of New York City.

8.3.2 Environmental Private Law Besides environmental public law, the use of private law instruments has been increasing over the last few years to strengthen environmental protection. First, private environmental law took the shape of binding law, such as criminal law, which has become increasingly significant in the field of the environment. To gain consistency and to comply with the European Directive 2008/99 related to the protection of the environment through criminal law, a governmental ordinance harmonized the rules on controls and sanctions that apply in case of breach of the Environmental Code, regardless of the concerned area. Tort law has also evolved to expand the scope of the concept of ecological damage, which was first recognized by courts and later consolidated by law-makers through its introduction to the Civil Code in 2016. More broadly, economic law as a whole is being affected by environmental challenges, whether in commercial, competition, or consumer law. Second, negotiated instruments complement environmental private law. Indeed, parties to a contract may complete their legal obligations by imposing upon themselves more stringent environmental obligations than those provided by law. For instance, it is possible for the seller to include in a contract of sale a provision preventing the buyer of a land property close to his/her own to carry out polluting activities in order to preserve his/her agricultural activity, even though a legal framework already exists to prevent industrial nuisance.19 Some contracts, such as insurance contracts, must also integrate the evolution of environmental law, which should now cover the risks associated with the compensation of the ecological damage. Also, the law of 2016 related to Biodiversity introduced to French law a new type of contract to serve environmental protection,20 one rooted in the conservation easements from the United States, Canada, and Australia. Lastly, tools of self-regulation, such as charters, codes of good practices, or certification procedures, to which courts have increasingly attached legal effect, complement e nvironmental private law. This is part of a broader movement in French law in favour of the hardening of voluntary commitments, as demonstrated by the new Article 1100 of the Civil Code, which entered into force in October 2016 and provides that obligations ‘may arise from voluntary performance or promise to perform a moral duty towards others’. This provision could be applied in the field of environmental protection.

19 Cass. 3e civ., 13 décembre 2011, n° 10–27.305. 20 Article L. 132–3 du Code de l’environnement.

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8.3.3 Need to Reinforce the Coordination of French Public and Private Environmental Law On the one hand, the heterogeneity of environmental rules ensures reinforcement of environmental protection. But on the other hand, this dispersion results in a complex and difficult application of the rules. An effort to coordinate these rules is therefore necessary. Law-makers seem to have clearly understood this issue. In 2016, they laid down an obligation to coordinate the different set of rules related to the remediation of environmental damage. Therefore, civil courts that deal with tort claims for ecological damage must take into consideration, on the day of their decision, measures ‘already taken’ in the course of the administrative procedure,21 and, conversely, for administrative authorities in case of pollution.22

8.4 Implementation Framework 8.4.1 Central Government French environmental law is implemented in a very centralized manner. The Ministry of Environment includes the Minister, his cabinet, and seven different departments: infrastructure; transportation and the sea; prevention of risks; energy and climate; planning, housing, and nature; civil aviation; and maritime fisheries and aquaculture. For the sake of completeness, we can also mention the General Council for the Environment and Sustainable Development, which is tasked with advising and assessing the performance of the different departments of the Ministry of Environment. As the environment is a cross-cutting theme, a coordinated response from the various ministries dealing with environmental matters is called for. This explains the multiplication of inter-ministry bodies consisting of representatives of competent services who coordinate their sometimes divergent views. On a local scale, the central government is represented at two different levels. At the regional level, there are five regional departments for the environment, planning, and housing that are responsible for ensuring the correct implementation of national policies regarding the environment and sustainable development: climate change; biodiversity conservation; natural resources and landscapes; social cohesion and solidarity between territories; and environmental health, risk prevention and management. At the level of the department, the prefect is the main authority in regards to environmental matters. Indeed, in addition to their general regulatory powers, prefects have special authority to regulate classified facilities, hunting, fisheries, the protection of nature, water, and noise pollution.

8.4.2 Local Governments There are different possibilities for the devolution of powers, ranging from the exclusive competence of the central government to the compulsory or optional delegation of powers 21 Article 1249 alinéa 3 du Code civil.

22 Article L. 164–2 du Code de l’environnement.

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france 181 to local governments, or shared competences. To decentralize France’s organization, a law of 1983 devolved more powers to local governments regarding planning, environmental protection, climate change, rational use of energy, and improvement of living conditions. Since 2003, Article 72 of the Constitution has also conferred to local governments the right to experiment with environmental regulations that derogate from national ones. This should result in a better adaptation of environmental law to suit local circumstances. At the same time, one may fear regressions on some issues, such as coastal areas, mountains, or hunting. In addition, a law of 2008 conferred legal standing to local governments to claim compensation in cases where there are breaches of natural and environmental protection that cause harm to their territories.

8.4.3 Administrative Bodies and Agencies The willingness to adapt instruments for environmental management either to specific areas or specific objectives has created a proliferation of public agencies placed under the authority of the Ministry of Environment. It is true that these agencies facilitate implementation on the ground, but their profusion is also the reason environmental policies have become fragmented and more complex over time. This is made obvious from the biodiversity management policy. In the interest of simplification, law-makers decided in 2016 to merge several agencies to create a single agency called the French Agency for Biodiversity.

8.4.4 The Role of French Courts in the Protection of the Environment The contributions of French courts to the protection of the environment are many. Obviously, courts contribute by sanctioning violations of environmental laws and regulations. In this regard, the government has been condemned many times for its failure to effectively control and implement national and European rules regarding authorizations to expand pig and poultry farming in Brittany. The government was held liable for its inaction and monetary damages were allocated to municipalities and environmental NGOs due to the presence of green algae on beaches caused by the excessive proliferation of this type of farming. French courts have also contributed to the creation of new environmental obligations, taking over the role of the legislator. We can mention here a decision of 2011 of the Constitutional Council imposing on each person a duty of vigilance towards the environment23 or a decision of the Cour de cassation of 2012 laying down the principle of r emediation of ecological damage.24 The contribution of French courts to the protection of the environment is growing, as illustrated by the introduction into French law in 2016 of an environmental class action.25 This type of lawsuit enables some NGOss to advance claims for cease and desist or damages for material or corporal injuries resulting from harms caused to the environment. To this

23 Cons. Const. 8 avril 2011, n° 2011–116. 24 Cass. crim. 25 septembre 2012, n° 10–82.938. 25 Article L. 142-3-1 du Code de l’environnement.

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182 laurent neyret date, no environmental class action has been filed in France. This can be partly explained by the fact that most French NGOs have limited technical and financial means.

8.5 Selected Problems 8.5.1 The Application of the Precautionary Principle In France, the precautionary principle is embedded in Article 5 of the Charter for the Environment, which is part of the Constitution. This principle has been widely criticized over the last decade, in particular from members of the business community who consider the precautionary principle to be a barrier to competitiveness. In practice, a thorough analysis of case-law shows that these concerns are excessive and ill-founded. For instance, the French Conseil d’Etat struck down a regulation of the Minister of Agriculture withdrawing the marketing authorization for a plant protection product on the ground that the withdrawal was based on insufficient scientific information.26 In criminal law, the French Cour de cassation refused to grant criminal immunity to those who destroyed GMO fields.27 Indeed, the risks arising from GMO cultivation are not a reason for the destruction of another’s property. If some people believe that the public authorities have not taken into consideration the precautionary principle in an appropriate manner, they must go to the courts, not engage in crop destruction campaigns that cause harms to private persons or companies. In tort law, the precautionary principle does not reverse the procedural rule according to which it is up to the claimant to prove the reality of the causal relationship between the injury and the act. In one case, a cattle owner invoked the precautionary principle to claim compensation for the harm suffered by his cattle due to the proximity of a high voltage. The Cour de cassation dismissed the compensation claim, considering that the claimant had not demonstrated a sufficient causal relationship, as there remained some significant uncertainty on the consequence of electromagnetic fields on the health of cattle.28 The evolution of mobile phone relay antennas litigation is also relevant in this respect. It illustrates the narrow application of the precautionary principle by French courts. As a first step, case-law made a real breakthrough towards the recognition of liability for risk of serious and irreversible harm. In this regard, the Court of Appeal of Versailles on 4 February 2009, held that the impossibility for the mobile phone operator to assure residents that there were no health and safety risks associated with exposure to mobile phone relays constitutes a nuisance. Consequently, the Court of Appeal ruled that it was legitimate to cease ‘the moral injury resulting from the anxiety created’ by this trouble and ordered the operator to dismantle the antenna.29 Similarly, the Tribunal of First Instance of Nevers, in a judgment of 22 June 2010, relied on the precautionary principle to require the operator not to dismantle the antenna but to carry out additional research on the potential risk of this activity and, if appropriate, to find a more adequate location for the antenna. Then, case-law took a step back to circumscribe the scope of the precautionary principle as a legal basis 26 CE 24 juillet 2009, n° 316013, Société BASF Agro. 27 Cass. crim., 3 mai 2011, n° 10–81.529. 28 Cass. 3e civ., 18 mai 2011, n° 10–17.645. 29 CA Versailles, 4 février 2009.

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france 183 for a preventive tort claim. In six decisions dated 14 May 2012, the Tribunal des conflits stated that exclusive jurisdiction is conferred to public authorities for ‘determining and controlling . . . the modalities of instalment of relay antennas, as well as protective measures to the public against wave effects’.30 Therefore, courts can no longer order the dismantlement of a relay-antenna duly authorized. Such a limitation to judicial authority may seem excessive since, in the past, administrative bodies implemented several preventive policies that proved to be inadequate, as evidenced by the infected blood scandal and some other resounding pharmaceutical cases.

8.5.2 Remediation of Ecological Damage For a long time in France, there was no liability for ecological damage, which can be defined as the injury caused to natural elements regardless of their consequences on persons. Indeed, Article 1382 of the 1804 Civil Code required an injury caused to ‘others’. As the environment is not a legal subject, the harms that it suffered could not be taken into account. However, in practice, case law had progressively recognized liability for ecological damage implicitly through the moral injury caused to environmental organizations and public entities charged with protecting the environment. Courts recognized explicitly the ecological damage following the oil spill resulting from the sinking of the tanker Erika off the coast of Brittany in December 1999. In a decision dated 25 September 2012, the Cour de cassation recognized the obligation to remedy ‘the direct or indirect damage to the environment’,31 assessed at more than 13 million euros. This landmark case has been strengthened since then with a law of 8 August 2016 that introduced into the Civil Code a new chapter on ‘Remediation for Ecological Damage’. This regime lays down the duty of man not to harm the environment, even though the status of nature as a non-legal subject remains unchanged. From now on, ‘any person responsible for an ecological damage must remedy it’.32 This statutory provision applies to private persons, whether natural or legal. It concerns at the same time poachers, operators of illegal landfills, or manufacturers discharging hazardous waste into the environment. Although the provisions of the Civil Code do not apply to state activities, it is likely that administrative courts would draw inspiration from the recently enacted provisions to recognize harms that the state could possibly cause. This would make sense as pollution ignores the distinction between civil and administrative liability, and liability should arise regardless of the originator of the pollution. The law defines ecological damage as ‘the non-negligible harm to ecosystems elements or functions or to the collective benefits of the environment to humans’.33 This definition is directly inspired from the ‘Eco-nomenclature’ proposed in France by legal scholars,34 economists, and ecologists. The reference to a ‘non-negligible’ harm means that less serious

30 T. conflits, 14 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. 31 Cass. crim. 25 septembre 2012, n° 10–82.938 ; Cass. Crim. 22 mars 2016, n° 13–87.650. 32 Article 1246 du Code civil. 33 Article 1247 du Code civil. 34 L. Neyret and G. J. Martin (eds.), Nomenclature des préjudices environnementaux (Paris: LGDJ, 2012).

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184 laurent neyret harm does not give rise to liability. Courts should then request an expert opinion to determine whether the harm in question meets this threshold. ‘Any person having legal standing’35 can bring a legal action on the basis of ecological damage. The law establishes an indicative list of persons with legal standing, such as the state, the French Biodiversity Agency, local authorities, public entities, and organizations charged with protecting the environment. This extensive approach to legal standing regarding ecological damage gave rise to concerns of potential congestion in courts. In practice, the costs of litigation for claimants, the sanctioning of abusive proceedings, and above all else, the compulsory earmarking of the amount of damages allocated for environmental damage to the restoration of the environment should address these concerns. Regarding the statute of limitations, the law of 2016 established rules appropriate for the specificity of pollution damages, which can occur a long time after the event that caused the damage occurred. Therefore, the time limit period is ten years, consistent with the ten-year time limit applicable to corporal damage. In addition, this time limit starts on the day the claimant knows or should have known the reality of the ecological damage. This time limit contributes to better protection of the environment to the extent that the ecological damage can be hidden while a long amount of time has elapsed since the original damage occurred. One of the main contributions of the new legal regime is related to the remedies. First, ‘[t]he remediation of ecological damage should occur through restoration’.36 This provision derogates from the default rule that allows for courts to determine the remedy for an injury. Because of this default rule, compensation was often chosen as the remedy including when the harm was a collective one, as it is the case with ecological damages. By contrast, the new provisions prioritize the restoration of the damaged environment over compensation. Alternatively, ‘[w]hen it proves to be impossible in law or in fact, or when restoration measures are inappropriate, the court can grant monetary damages’.37 Future litigation will reveal the cases for which this exception applies. We can nonetheless imagine that ‘impossible in law’ refers to disproportionate harms to other’s rights, as a serious violation of property rights related to the implementation of remediation measures. ‘Impossible in fact’, by contrast, refers to those irreversible damages that cannot be restored due to a lack of scientific knowledge or technical capacities. Second, the law provides a limitation to the free utilization of awarded damages through the earmarking of these damages ‘for the restoration of the environment’.38 Prior to this, it was questionable that the harm to common goods could be compensated through the allocation of a certain amount of money to an organization or a public entity, regardless of its later use. This situation is no longer consistent with French law. It is noteworthy though that the earmarking requirement is limited to harms included in the new Article 1248 of the Civil Code and does not apply to personal injury related to a harm to the environment, such as the moral injury to an organization or the harm to the brand reputation of subnational entities. The law gives priority to the claimant to be the recipient of the awarded damages for damage caused to the environment. The aim is to encourage environmental organizations, whose technical capacities and knowledge of the local context are undeniable, to bring lawsuits for environmental damage. Alternatively, where it is impossible for the claimant to take the appropriate measures to restore the environment, the damages awarded will be 35 Article 1248 du Code civil. 36 Article 1249 alinéa 1 du Code civil. 37 Article 1249 alinéa 2 du Code civil. 38 Article 1249 alinéa. 2 du Code civil.

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france 185 allocated to the state. In any case, the recipient of the damages should justify the earmarking of the damages for the restoration of the damaged environment. With regard to the monetary valuation of nature, the Cour de cassation stated that in case of deficiency or inadequacy of the valuation by the claimant—in this case an environmental organization—it is for the Court to assess the ecological damage, if necessary by appointing an expert itself.39 Finally, the law of 2016 introduced the obligation to coordinate the different legal regimes to remedy ecological damage. This obligation lies on courts40 as well as on administrative authorities,41 particularly in the implementation of administrative regulations regarding waste, water, soil, or environmental liability. Therefore, civil courts that handle cases regarding ecological damage should take into consideration, on the day of their ruling, remedial actions ‘already taken’,42 regardless of the fact that these measures were taken spontaneously or upon the request of the administrative authorities. The law-maker has recognized the principle of preventive liability for ecological damage. Thus, even before the damage occurs, a person who has sufficient standing can bring a lawsuit to get an order to take ‘the appropriate measures to prevent or cease the damage’.43 It is noteworthy that the power of the courts is not limited to the prevention of imminent damage and that such a measure can be ordered even though the activity causing the damage is not illegal.

8.5.3 The Protection of the Environment through Criminal Law In France, the number of breaches of environmental law is increasing. Between 2014 and 2015, it grew by almost 9 per cent, up to around 70,000 instances.44 These breaches in particular concern violations of industrial environmental laws and regulations, with a majority of the offences related to waste law. Faced with this evolution, French criminal law to protect the environment has lacked effectiveness.45 There are many reasons for this lack of effectiveness. First, one of the weaknesses of criminal law is related to its lack of accessibility and comprehensibility. Indeed, sanctions for breaches of environmental law are d isseminated among many codes, such as the Code of the Environment, the Rural Code, the Code of Forestry, or the Criminal Code. It is worthy of mention that the French Criminal Code, which is the most symbolic and well-known, does not include a chapter related to e nvironmental crimes, though some exceptional crimes do appear, such as ecological terrorism46 or war crime through intentional strikes against the environment.47 Second, criminal law for the protection of the environment is excessively technical as it primarily relies upon scientific norms rather than legal concepts. Third, a minority of offences are effectively used by courts, which often find themselves in a difficult position, to sanction persons responsible for 39 Cass. crim., 22 mars 2016, n° 13–87.650. 40 Article 1249 alinéa 3 du Code civil. 41 Article L. 164–2 du Code de l’environnement. 42 Article 1249 alinéa 3 du Code civil. 43 Article 1252 du Code civil. 44 INHESJ/ONRDP, Rapport annuel 2016. 45 See further L. Neyret, From Ecocrimes to Ecocide. Protecting the Environment through Criminal Law, C-EENRG Reports, 20172, May 2017. 46 Article 421–2 du Code pénal. 47 Article 461–28 du Code pénal.

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186 laurent neyret breaching environmental laws. For instance, a report showed that in regards to the protection of water, following inspection by state services, only 1 per cent of offences ended with sanctions. In 2012, only 7,595 convictions for environmental crimes were recorded. In addition, the level of sanction is barely a deterrent when compared with the benefits likely to be gained by committing environmental crimes. Fourth, French criminal law of the environment is a victim of its overabundance, while, in the words of Montesquieu, ‘Useless laws weaken necessary laws’.48 For example, the mere violation of administrative regulations to prevent environmental harms is systematically associated with criminal penalties even when the risk or damage to the environment is not yet proven. To overcome the weaknesses of the existing law, it will be necessary to build a common criminal system to protect the environment within a consistent, legitimate, and effective framework, proportionate to the significance of the protected values, to the seriousness of the damage, and to the illegality and seriousness of the criminal behaviour. In this respect, in 2015, a working group submitted to the Ministry of Justice a report providing thirty-five proposals for more effective punishment of crimes against the environment.49 The report suggested simplifying environmental law, which implies reserving criminal penalties for the most serious environmental breaches. Therefore, it would be appropriate to call for the decriminalization of environmental breaches when it is a simple breach of administrative regulations without any real effect or risk to the environment or human health and substitute administrative sanctions instead, like we are witnessing in business law more generally. The simplification of criminal law for the protection of the environment should also give rise to the establishment in the Criminal Code of offences related to threat or damage to the environment, as reflective of wide social disapproval towards the most serious environmental crimes. In April 2015, the Minister of Justice issued a circular concerning criminal policy aimed at improving and reinforcing the fight against damage to the environment. To achieve this, the aforementioned regulation specifies that a real doctrine of response based on criminal law should guide the measures taken by the Public Prosecutor’s Office for damage to the environment. This doctrine includes, in particular, the appointment of judiciary focal points (judges) in the prosecutor-general and prosecutor’s offices to facilitate interaction with the administrative agencies concerned and foster coordination of actions and review of the assessment of criminal policy implemented at the local level. The circular also advocates systematic prosecution in cases of serious or irreversible damage. According to this administrative document, ‘the protection of the environment has become a major issue’50 for the Ministry of Justice. For the most serious environmental crimes, which are intentionally committed in the context of a widespread or systematic action that have an adverse impact on the safety of the planet, such as international waste trafficking or natural resources trafficking, it would be appropriate to establish a new crime: ecocide. In doing so, France would join the increasing momentum for the international recognition of this crime.

48 De l’Esprit des lois, 1748, Livre XXIX, Chapitre XVI. 49 L. Neyret, From Ecocrimes to Ecocide. Protecting the Environment through Criminal Law, C-EENRG Reports, 20172, May 2017. 50 http://www.justice.gouv.fr/la-garde-des-sceaux-10016/mieux-lutter-contre-les-atteintes-a- lenvironnement-28022.html.

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8.5.4 Business: A Major Actor for the Protection of the Environment The strengthening of the legal framework for social corporate responsibility initiated at the international and European level has been echoed in French law. A few examples need to be mentioned here. Since 2001, major companies are required to provide non-financial reports51 on their social and environmental management.52 In this respect, these companies must release information related to the impact of their activities on the environment and their commitments to sustainable development every year. This obligation to provide environmental information has widened following the adoption of the Paris Agreement in 2015. From now on, there is an obligation from a variety of institutional investors to provide climate information to stakeholders on the measures deployed in their investment policy to contribute to the energy and ecological transition.53 The enhancement of environmental protection by corporations is also taking the form of the strengthening of the obligations of parent companies towards their subsidiaries. Indeed, it is sometimes difficult, if not impossible, to obtain remediation of contaminated sites or the restoration of harm caused to the environment because of the lack of financial capacity of the subsidiary that caused the damage. To address this issue, French law has evolved. First, when a subsidiary is facing a bankruptcy procedure, it is possible to make the parent company responsible in whole or in part for the remedial action on the contaminated site operated by the subsidiary.54 To do so, it is necessary to demonstrate that the parent company committed a wrongful act that has contributed to the insufficient assets of the subsidiary. In addition, the law of 27 March 2017 requires the largest parent companies to establish and carry out a vigilance plan to prevent serious breaches of human rights and fundamental liberties, human health and safety, and environmental standards resulting from activities of companies under their control, including their sub-contractors or suppliers.55 More specifically, the duty of care for multinationals became an obligation following the Rana Plaza tragedy to compel these companies to prevent risks likely to occur all along the supply chain. They can no longer hide themselves behind the corporate veil or the state’s monopoly to ensure the respect of fundamental rights. The law provides that anyone with standing can bring a lawsuit for the tribunal to order the company to establish a vigilance plan or to effectively implement one.56 If the company fails to comply with its obligation, it can be held liable.57 We could even imagine a class action58 brought by an environmental organization to be compensated for the injury suffered by foreign victims. 51 Article L. 225-102-1 du Code de commerce créé par L. n° 2001–420, 15 mai 2001. On the new economic regulations: art. 116. See also articles R. 225–104, R. 225-105-1 I 2 du Code de commerce. 52 A.-S. Epstein, Information environnementale et entreprise: contribution à l’analyse juridique d’une régulation (Institut Universitaire Varenne, 2015). 53 Articles L. 533-22-1 et D. 533-16-1 du Code monétaire et financier. 54 Article L. 512–17 du Code de l’environnement. 55 Article L. 225-102-4 du Code de commerce. 56 Article L. 225-102-4 II du Code de commerce. 57 Article L. 225-102-5 du Code de commerce. 58 The law of 18 November 2016, on the Modernization of the Judiciary in the 21st Century introduced into French law environmental class actions: Art. L. 142-3-1 of the Environmental Code.

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188 laurent neyret In addition to law-makers, courts contribute to the consolidation of ethical commitments in the field of the environment. The most emblematic case is the sinking of the Erika. In this case, Total was found guilty of a pollution offence59 because of its negligence in its vetting procedures in breach of its ethical and corporate commitments, even though the company was in compliance with international maritime law. Similarly, a mobile phone provider was held liable for causing an anxiety injury due to the instalment of relay-antennas in a residential area, even though it was in compliance with the emission threshold for electromagnetic waves.60 For the court, the wrong of this operator is the consequence of its unwillingness to decrease its emissions below the standards in force in France, even though it had the technical capacity to do so and committed itself to doing so, as it was a signatory to ethics charters with some cities. Finally, there is a strengthening of the corporate duty of loyalty to the benefit of consumers and competitors. Accordingly, consumer law encourages professionals to establish environmental labels on their products, whether regarding their carbon footprint, consumption of natural resources, or impact on the natural environment.61 In competition law, the Cour de cassation held that the violation of environmental regulations in the practice of a commercial activity constitutes an act of unfair competition, which can give rise to civil liability for the company to the benefit of the competitor in compliance with these obligations.62 This case shows that companies can, with or without state involvement, participate in the advancement of environmental law through self-regulation.

8.6 Conclusion Over the past few years, environmental law has played a significant role in French law. However, it has developed without any general consistency to the extent that it is no longer unified or effective. To resolve such weaknesses, a modernization trend has been initiated by the government to simplify rules protecting the environment in France, in particular through the consolidation of general rules such as the principle of remediation of ecological damage and the corporate duty of vigilance in regard to the environment. But the consolidation of environmental protection is not yet complete. In the future, it should be strengthened through, inter alia, the articulation of public and private law and the recognition of new general rules accessible to the public, which includes the recognition in the French Criminal Code of offences against the environment. In any event, a strong political will in France supports the protection of the environment through law, as the intervention of President Macron following the US withdrawal from the Paris Agreement has illustrated, further emphasized by the slogan ‘Make our Planet Great Again’. This commitment is also clear from the support of President Laurent Fabius to the Global Pact for the Environment, which aims to make the major principles of environmental law universally binding. The project was then endorsed by President Macron at the UN General Assembly in September 2017.63 59 Cass. crim. 25 septembre 2012, n° 10–82.938. 61 Article L. 112–10 du Code de la consommation. 63 http://pactenvironment.org/.

60 Cour d’appel de Versailles, 4 février 2009. 62 Cass. com., 21 janvier 2014, n° 12–25.443.

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8.7 Selected Bibliography Aguila, Y., ‘Vers un Pacte mondial de l’environnement’ Jurisclasseur Périodique Semaine juridique (édition générale) (2017) 1236. Bacache, M., ‘L’action de groupe en matière environnementale’ (2017) 3 Energie, Environnement, Infrastructures 11. Blin-Franchomme, M.-P., ‘Le marché de la consommation durable : regards sur la loyauté des pratiques commerciales’ (2012) 12 Contrats, Concurrence, Consommation 6. Bréchignac, C., G. De Broglie, and M. Delmas-Marty (eds.), L’environnement et ses métamorphoses (Paris: Hermann, 2015). Fonbaustier, L., Manuel de droit de l’environnement, (Paris, Presses Universitaires de France, 2018). Hautereau-Boutonnet, M., ‘Le contrat environnemental’ (2015) 4 Recueil Dalloz 217. Hautereau-Boutonnet, M. and J.-C. Saint-Pau, L’influence du principe de précaution sur le droit de la responsabilité civile et pénale comparé [Rapport de recherche] (Paris: Mission de recherche Droit & Justice, 2016). Martin, G. J., ‘Les prémices de la régulation en matière d’environnement: de la police administrative au Livre vert de la Commission européenne en date du 28 mars 2007’ in G. J. Martin and B. Parance (eds.), La régulation environnementale (Paris : LGDJ, 2012). Martin, G. J., ‘La servitude contractuelle environnementale: l’histoire d’une résistance’ in C. Guibet Lafaye, S. Vanuxem (eds.), Repenser la propriété (Aix-Marseille: PUAM 2016). Neyret, L., Atteintes au vivant et responsabilité civile (Paris, LGDJ, 2006). Neyret, L. and G. Martin (eds.), Nomenclature des préjudices environnementaux (Paris: LGDJ, 2012). Neyret, L., ‘La sanction en droit de l’environnement—Pour une théorie générale’ in C. Chainais and D. Fenouillet (eds.), Les sanctions en droit contemporain (Paris: Dalloz, 2012). Neyret, L., ‘La consécration du préjudice écologique dans le Code civil’ (2017) 17 Recueil Dalloz 924. Neyret, L. (ed.), Des écocrimes à l’écocide: Le droit pénal au secours de l’environnement (Bruxelles: Bruylant, 2015), partial translation in From Ecocrimes to Ecocide. Protecting the Environment through Criminal Law, C-EENRG Reports, 2017, May 2017. Prieur, M., Droit de l’environnement (Paris: Dalloz, 7th edn. 2016). Reboul-Maupin, N. and B. Grimonprez, ‘Les obligations réelles environnementales: chronique d’une naissance annoncée’ (2016) 35 Recueil Dalloz 2074. Van Lang, A., Droit de l’environnement (Paris: Presses Universitaires de France, 4th edn. 2016).

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chapter 9

Ger m a n y Olaf Dilling and Wolfgang Köck

9.1 Introduction: The Characteristics of German Environmental Law

191

9.2 Allocation of Powers

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9.2.1 Environmental Constitutionalism: National Objectives and Obligations to Protect 9.2.2 Devolution of Legislative and Executive Competences 9.2.2.1 Commitment to International and EU Law 9.2.2.2 Legislative Competences 9.2.2.3 Executive Competences

9.3 Structure and Substance of Environmental Law

9.3.1 Combating Air Pollution and Climate Change by Regulating Industrial Plants 9.3.1.1 Air Pollution Control 9.3.1.2 The Regulation of Point Sources: Industrial Installations Legislation 9.3.1.3 Climate Protection 9.3.2 Water Legislation 9.3.2.1 Status of Water Bodies 9.3.2.2 Water Protection 9.3.2.3 Water Protection and Agriculture 9.3.3 Waste Legislation 9.3.4 Nature and Species Protection Legislation 9.3.5 Nuclear Legislation

192 194 194 194 195

196 197 197 198 199 200 201 201 202 203 204 206

9.4 Implementation Framework

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9.5 Conclusion

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9.6 Acknowledgements

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9.7 Selected Bibliography

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9.1 Introduction: The Characteristics of German Environmental Law German environmental law is characterized by legislation under administrative law. Private environmental law and environmental criminal law play a marginal role. Due to this orientation towards public law, German environmental law has been characterized as ʻbureaucratic legalismʼ.1 In other words, state actors are primarily responsible for agendasetting and implementation. They determine facts and they have to ensure that rules, bans, and other obligations are implemented.2 For that purpose, they primarily use instruments under administrative law, such as sectoral environmental planning, approval conditions, etc. The particularities of bureaucratic legalism have also become manifest in the concept of ‘legally bound authorization’. This means both the entitlement to an authorization in case the requirements are met, as well as the possibility of complete judicial control of the decisions. In this context, fact-finding takes place in proceedings before the administrative courts. The competence for a final judicial decision rests with the respective court—given that administrative bodies do not possess discretion.3 In German environmental law, this model of legally binding authorization is very often combined with an approach that outlines the government’s approval requirements comprehensively (concept of ‘normative concretization’). For example, the Federal Immission Control Act (Bundes-Immisionsschutzgesetz) is detailed by forty-three legal ordinances and by some federal administrative prescriptions, which are important in practice, such as the Technical Instructions on Air Quality Control (Technische Anleitung Luft).4 These prescriptions give precise guidance for administrative decision-making. While their legal status had long been disputed, under certain circumstances they are now considered binding.5 Both ‘legally bound authorization’ and ‘normative concretization’ contributed, on the one hand, to the fact that Germany has developed powerful, effective environmental law, but, on the other hand, has posed problems for adaptation to European law. As opposed to ʻbureaucratic legalismʼ, Kagan characterizes ʻadversarial legalismʼ as a system in which legal processes are decisively defined and driven by the parties. For Kagan, 1 R. A. Kagan, Adversarial Legalism: The American Way of Law (Cambridge, MA: Harvard University Press, 2003), 11. 2 W. Köck, ‘Governance in der Umweltpolitik’ in Gunnar Folke Schuppert (ed.), Governance-Forschung: Vergewisserung über Stand und Entwicklungslinien (Baden-Baden: Nomos, 2. edn. 2005), 322–46, at 326–7. 3 Generally, jurisdiction is rather cautious to recognize margins of discretion. Only in the case of authorizations under nuclear law, see BVerwGE (Bundesverwaltungsgerichtsentscheidung) 72, 300, 315–18, and administrative decisions under genetic engineering law did the courts recognize a margin of discretion, see BVerwGE109, 29. 4 ‘Immission’ is a technical term from pollution control used in German environmental law. As opposed to ‘emission’, which refers to the output of noxious substances or other effects from industrial premises, it refers to the cumulated input of such substances and effects on organisms, environmental media, or other protected goods, see § 3(2) Federal Immission Control Act. 5 See BVerwGE 55, 250.

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192 olaf dilling and wolfgang köck the US legal system is significantly shaped by this approach. In Germany, however, ʻadversarial legalismʼ6 is mainly limited to private law. However, elements of it can now also be found in German administrative law, particularly since NGOs and the public have better opportunities to influence administrative decision-making and access to justice has been improved significantly.7 This development was based on the EU implementation of the Aarhus Convention.8 Since the German environmental movement was well-organized with competent environmental lawyers, it was able to make effective use of the new powers and brought relevant environmental cases to court at the domestic and European level, such as the Trianel case9 or the case of Darmstadt’s Clean Air Plan.10

9.2 Allocation of Powers 9.2.1 Environmental Constitutionalism: National Objectives and Obligations to Protect In 1994, environmental protection became a so-called national objective, anchored in the German Federal Constitution, the Basic Law (Grundgesetz—GG). However, the demands for a fundamental right to environmental protection did not prevail, especially for reasons of the Constitution’s basic philosophy being built around human dignity.11 Even before environmental protection was introduced as national objective however, constitutional law had recognized that—at least in some cases—the state is subject to obligations to protect it as part of the fundamental rights.12 These obligations serve to protect the right to life and physical integrity against unlawful interventions by third parties, such as operators of industrial facilities or power stations.13 In this context, Article 2(2) Basic Law gave justified recognition of an obligation to protect the ʻecological subsistence minimumʼ of men.14 This legal development was significantly shaped by the Federal Constitutional Court in its jurisdiction on the constitutional permissibility of nuclear power in the 1970s.15 Unlike European law (Article 191 Treaty on the Functioning of the European Union (TFEU)), German Basic Law does not commit state authorities to a ʻhigh level of protectionʼ 6 Kagan, Adversarial Legalism, at 9. 7 W. Köck, ‘Die Mitwirkung der Zivilgesellschaft am Verwaltungshandeln: eine Bilanz’ (2016) 27 Zeitschrift für Umweltrecht 643. 8 See, especially, Directive 2003/35/EC with which the EU transposed significant parts of the Aarhus Convention (participation, access to courts) into European law. 9 ECJ, Judgment of 12 May 2011, BUND v Arnsberg, C-115/09, EU:C:2011:289. 10 BVerwGE 147, 312. 11 M. Kloepfer, Zum Grundrecht auf Umweltschutz: Vortrag gehalten vor der Berliner Juristischen Gesellschaft am 18. Januar 1978 (Berlin: Walter de Gruyter, 1978); M. Kotulla, ‘Verfassungsrechtliche Aspekte im Zusammenhang mit der Einführung eines Umweltgrundrechts in das GG’ (2000) 33 Kritische Justiz 22. 12 P. Kunig, ‘German Constitutional Law and the Environment’ (1983) 8 Adelaide Law Review 318, at 325. 13 BVerwGE 55, 250, 252–3. 14 Kloepfer, Zum Grundrecht auf Umweltschutz, at 27; C. Calliess, Rechtsstaat und Umweltstaat: Zugleich ein Beitrag zur Grundrechtsdogmatik im Rahmen mehrpoliger Verfassung (Tübingen: Mohr Siebeck, 2001), 300. 15 BVerwGE 55, 250.

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germany 193 in the pursuit of environmental protection as a national objective. As the Federal Constitutional Court (Bundesverfassungsgericht—BVerfG) pointed out, it commits rather to an ʻadequate level of protection that must be effectiveʼ.16 It is doubtful whether the anchoring of environmental protection as a national objective includes the obligation to prevent environmental deterioration,17 as some scholars of constitutional law argue.18 According to the BVerfG, what the state must do, pursuing its mandate to offer effective environmental protection, is largely down to the political process. The BVerfG therefore recognizes political room for manoeuvre and provides a degree of deference.19 The actual benefit of the national objective clause, therefore, is that it is easier to justify state intervention relating to economic freedom. The Court only determines state actions in the field of environmental protection to be unconstitutional, if it is evident that the constitution was violated due to completely inadequate measures being taken.20 The latter has not been established in any case so far. Conversely, however, under constitutional law the legislator is allowed to establish farreaching environmental regulations. This became apparent in the strict German legislation on genetic engineering, to which the BVerfG did not object.21 The Court has not yet determined the ecological minimum standards that are to be derived from the constitutional requirement of environmental protection however. The literature mainly addresses principles of action, formal as well as procedural requirements.22 According to a leading textbook on environmental law, for instance, the environmental policy principles of German environmental law, in particular the precautionary principle, the polluter-pays principle, and the cooperation principle, should now have constitutional validity. In addition, the constitutionally required minimum standards encompass control requirements and powers of intervention in case of environmentally damaging activities; consideration of environmental protection in the case of spatial planning; criminal liability of serious violations of environmental law; and public participation.23 In our view, this does not sufficiently outline the ʻadequate level of protection that must be effectiveʼ required by the Federal Constitutional Court.24 The ecological subsistence level of a human being requires a stock of natural goods that ensures the ecosystem performs and functions well. This constitutional requirement generates the obligation to continuously monitor the environment; to determine ecological stress levels or to establish qualitative goals respectively, if precise stress limits cannot be determined scientifically; to plan environmental protection strategically; and to develop suitable implementation instruments, such as authorization requirements.25 The procedural minimum obligations imposed by Article 20a Basic Law may also include an obligation to weigh the 16 BVerfG (1996) Neue Juristische Wochenschrift 651. 17 e.g. R. Steinberg, Der ökologische Verfassungsstaat (Frankfurt am Main: Suhrkamp, 1998), 143. 18 See e.g. D. Murswiek, ‘Staatsziel Umweltschutz (Article 20a GG): Bedeutung für Rechtsetzung und Rechtsanwendung’ (1996) Neue Zeitschrift für Verwaltungsrecht 222. 19 The standard is review of evidence. 20 BVerfG (2002) Deutsches Verwaltungsblatt 614. 21 BVerfGE (Bundesverfassungsgerichtsentscheidung) 128, 1. 22 Acknowledging the role of German legal scholarship in developing policy principles as a core element of a systematic approach to environmental law, T. Lundmark, ‘Systematizing Environmental Law on a German Model’ (1998) 7 Dickinson Journal of Environmental Law &Policy 1, at 10. 23 M. Kloepfer, Umweltrecht (Munich: C.H. BECK, 4th edn. 2016), sec. 3 no. 50. 24 BVerfG (1996) Neue Juristische Wochenschrift 651. 25 W. Köck, ‘Die Bedarfsplanung im Infrastrukturrecht: Über rechtliche Möglichkeiten der Stärkung des Umweltschutzes bei der Bedarfsfeststellung’ (2016) 27 Zeitschrift für Umweltrecht 579, at 584.

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194 olaf dilling and wolfgang köck need for public projects against the anticipated environmental impacts associated with the realization of such projects.26

9.2.2 Devolution of Legislative and Executive Competences German environmental law is organized as part of a multilevel system. On the one hand, this is reflected in the commitment and openness that the German Basic Law shows vis-à-vis international and EU law. On the other hand, Germany is a federal state that allocates legislative rights to both the federal and the state governments. Federalism also becomes manifest in the way law is executed; as a rule, the latter falls into the responsibility of the states (Länder), even if federal laws are concerned.

9.2.2.1 Commitment to International and EU Law Apart from the high degree of Europeanization, German environmental law is also significantly shaped by international obligations. In 2003, Germany had concluded about 1,000 treaties in environmental law.27 Since then, the influence of international environmental law has even intensified.28 German constitutional law is characterized by the principle of commitment to public international law.29 According to Article 25 Basic Law, general rules of international law are part of federal law and may directly create rights and duties for German inhabitants. However, international treaties must be transposed into domestic law (see Article 59(2) Basic Law). Therefore, the German Constitution does not easily fit into the dichotomy of monism and dualism.30

9.2.2.2 Legislative Competences The German Constitution is based on the presumption that legislative competences rest with the Länder unless the Constitution explicitly confers legislative power on the Federation (Article 70(1) Basic Law). The list of federal legislative powers is, however, very long, so that in practical terms legislation is largely a federal matter.31 The federal legislative competences are divided into exclusive and concurrent powers (Articles 71–74 Basic Law). Those legislative 26 Ibid. 27 R. Sparwasser, R. Engel, and A. Voßkuhle, Umweltrecht—Grundzüge des öffentlichen Umweltschutzes (Heidelberg: C. F. Müller, 2003), 25. 28 See UBA, ‘Umweltvölkerrecht’ (2014), available at: http://www.umweltbundesamt.de/themen/ nachhaltigkeit-strategien-internationales/umweltrecht/umweltvoelkerrecht#textpart-1. 29 BVerfGE 111, 307, paras. 1–72, at 33; see also R. Wolfrum, H. P. Hestemeyer, and S. Vöneky, ‘The Reception of International Law in the German Legal Order: An Introduction’ in E. de Wet, H. P. Hestemeyer, and R. Wolfrum (eds.), The Implementation of International Law in Germany and South Africa (Pretoria: Pretoria University Law Press, 2015), 2–21, at 4–5. 30 Wolfrum, Hestemeyer, and Vöneky, ‘The Reception of International Law in the German Legal Order’ in de Wet, Hestemeyer, and Wolfrum (eds.), The Implementation of International Law in Germany and South Africa, at 5. 31 J. Rozek, ‘Hintergründe, Motive und Ziele der Föderalismusreform von 2006’ in M. Heintzen and A. Uhle (eds.), Neuere Entwicklungen im Kompetenzrecht: Zur Verteilung der Gesetzgebungszuständigkeiten zwischen Bund und Ländern nach der Föderalismusreform (Berlin: Duncker & Humblot, 2014), 11–28, at 18–19.

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germany 195 matters relevant to environmental protection are all to be found in the field of concurrent competences. However, only very specific issues of environmental protection are addressed here, with the result that the federal government—unlike the EU—does not possess comprehensive powers in the field of environmental protection. Nevertheless, e nvironmental law is significantly shaped by federal legislation, while the environmental legislation of the Länder remains marginal. Concurrent legislation is characterized by the fact that the Länder shall have power to legislate as long as and to the extent that the Federation has not exercised its legislative power by enacting a law (Article 72(1) GG). If the Federation has exercised its power, the Länder are prohibited in their legislation.32 To the extent that a federal regulation is to be qualified as exhaustive, the Länder may impose no additional regulations in this area. Within concurrent legislation, however, there are certain subject matters for which the Länder have been granted the right to derogate from federal regulations (Article 72(3) Basic Law).33 This is the case in the field of water management and water protection, in the area of nature conservation and landscape management as well as in the area of regional planning and hunting.

9.2.2.3 Executive Competences The Länder execute Federal laws in their own responsibility (‘als eigene Angelegenheit’, Article 83 Basic Law), that is, organizational power rests with the Länder.34 They determine the relevant authorities to be established and regulate the respective administrative p rocedures. As far as federal law contains regulations on administrative procedure, Länder have the right to deviate (Article 84 (1) Basic Law), unless federal law transposes EU Directives. Each of the Länder may organize their administrative responsibilities differently. In most cases, a three-tier administrative structure is established (lower administrative authority: city or county; middle administrative authority: regional management authority; highest administrative authority: state ministry). A particularly contested environmental question is whether complex matters of authorization, such as the authorization of large industrial facilities, are to be taken by the lower administrative level (cities and counties), or whether special agencies should be established for that purpose.35 Since the execution of federal law is to be understood as a matter of the Länder, they generally have the possibility to exercise discretion to the extent that this is granted by federal law. However, several important environmental laws grant the federal government the power to issue general administrative regulations given the consent of the Bundesrat and thus 32 For the prevailing interpretation, see e.g. C. Degenhart, ‘Art. 72’ in M. Sachs (ed.), Grundgesetz: Kommentar (Munich: C.H. Beck, 7th edn. 2014), 1514–33. 33 This competence to derogate was recently introduced by the constitutional reform of federalism in 2006, to compensate for a loss of substantive legislative powers, which had in certain fields been combined with a federal framework competency. For the political background and details, see A. Gunlicks, ‘German Federalism Reform: Part One’ (2007) 8 German Law Journal 111, at 128–9. See also G. Winter, ‘Environmental Governance in Germany’ in M. Alberton and F. Palermo (eds.), Environmental Protection in Multi-Layered Systems Comparative Lessons from the Water Sector (Leiden: Brill/Nijhoff, 2012), 55–81, at 59 et seq. 34 Winter, ‘Environmental Governance in Germany’, at 55–81, 62 et seq. 35 For more details, see SRU, Umweltverwaltungen unter Reformdruck: Herausforderungen, Strategien, Perspektiven (Sondergutachten: Sachverständigenrat für Umweltfragen, 2007).

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196 olaf dilling and wolfgang köck to control the application of law. An example is given in § 48 Federal Immission Control Act, which is the legal basis for the practically very important Technical Instructions on Air Quality Control (Technische Anleitung Luft) and on Noise Protection (Technische Anleitung Lärm).36 The federal government used these powers extensively. The federal government supervises the Länder to ensure that they execute federal laws in accordance with the law (Article 84(3) Basic Law). It has the right to set up autonomous federal higher authorities for matters on which the Federation is entitled to legislate (Article 87(3) Basic Law). Among others, the Federal Environmental Agency (Umweltbundesamt), the Federal Agency for Nature Conservation (Bundesamt für Naturschutz) and the Federal Institute for Risk Assessment (Bundesinstitut für Risikobewertung) are examples of such federal authorities that deal with environmental issues. They are mainly responsible for generating and distributing information about environmental problems and risks, but increasingly they also carry out executive tasks.

9.3 Structure and Substance of Environmental Law In Germany, environmental law has a comparatively long tradition. Key environmental laws, such as the Federal Immission Control Act (Bundes-Immissionsschutzgesetz) (1974), the Federal Water Management Act (Wasserhaushaltsgesetz) (1976), the Federal Nature Conservation Act (Bundesnaturschutzgesetz) (1976), the Waste Disposal Act (Abfallbeseitigungsgesetz) (1972) and the Chemicals Act (Chemikaliengesetz) (1980), all date back to the 1970s.37 They were not influenced by European and international law, especially since the European basic freedoms, in particular the free movement of goods, could be constrained early on. However, the precondition is regulation in the public interest in order to satisfy ‘mandatory requirements’38 including the protection of the environment,39 provided that these national restrictions were non-discriminatory and proportionate. Nowadays, national environmental law is Europeanized to a very high degree (see section 9.1). However, the EU only establishes minimum requirements in the field of environmental policy so that stricter regulations can be adopted at a national level (Article 193 TFEU), which allows for national ‘trailblazing’ policies. In this context, Germany was and partly still is a ‘forerunner’ in many respects, as highlighted, for instance, by the renewable energy policies or the phasing-out of nuclear power. On the contrary, if e nvironmentally relevant European legislation is not based on the EU’s environmental competence but on its internal market competence (Articles 114 et seq. TFEU), such as environmental regulations

36 German laws and regulations apart from the Grundgesetz are subdivided on the first level of organization not into Articles, but into Sections (German plural: ‘Paragrafen’, §§; singular ‘Paragraf ’, §). The Sections on their part are usually subdivided into paragraphs (German: ‘Absätze’, singular: ‘Absatz’, usually abbreviated ‘Abs.’), however, for the sake of simplification, we use brackets here. 37 Köck, ‘Governance in der Umweltpolitik’, at 322–46, 326–8. 38 ECJ, Judgment of 20 February 1979, Cassis de Dijon, C-120/78, EU:C:1879:42. 39 ECJ, Judgment of 20 September 1988, Commission v Denmark, C-302/86, EU:C:1988:421.

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germany 197 regarding substances or products, then Community law offers only little leeway for trailblazing national policies (Article 114 TFEU). In parallel to early modern German environmental law, basic principles of environmental law, such as the precautionary principle and the polluter-pays principle, began to develop particularly through case-law and legal studies. Since the 1990s, various attempts were made to amalgamate German environmental legislation into a uniform environmental code (Umweltgesetzbuch), which failed for political reasons in 2008.40 Today, German environmental law therefore still consists of numerous individual pieces of legislation.

9.3.1 Combating Air Pollution and Climate Change by Regulating Industrial Plants 9.3.1.1 Air Pollution Control In Germany, air pollution did steadily decline; especially in the case of carbon monoxides (CO) and sulphur oxides (SO2), the national air pollution policy was very successful. However, several pollutants still pose significant issues such as nitrogen oxides (NOx), particulate matter (PM10; PM2.5), and ozone, all mainly produced by vehicle traffic or from agriculture such as ammonia (NH3) and nitrous oxide (N2O). Little progress has been made in these areas since 2000.41 Air pollution law is essentially integrated in the Federal Immission Control Act (BundesImmissionsschutzgesetz) and its sub-statutory regulations; it is also found in product-related regulations, such as, in particular, emission standards for motor vehicles, which, however, are no longer set nationally, but by EU law because of the European internal market.42 It should be pointed out that the German government, which is aware of the great economic importance of the automobile industry, worked to slow down the political process of setting EU car emission standards, notwithstanding the fact that many German cities struggle with

40 M. Kloepfer, E. Rehbinder, and E. Schmidt-Aßmann, Umweltgesetzbuch—Allgemeiner Teil, vol 90 (Berlin: Erich Schmidt, 1991) so-called ‘Professor’s draft’; in detail, Kloepfer, Umweltrecht, sec. 1, no. 158–231; Ministry for the Environment, Nature Conservation and Nuclear Safety of the Federal Republic of Germany (ed.), Environmental code: draft = (Umweltgesetzbuch—UGB). Prepared by the Independent Expert Commission on the Environmental Code at the Ministry for the Environment, Nature Conservation and Nuclear Safety of the Federal Republic of Germany (Berlin: Duncker & Humblot, 1998); Ministery draft Umweltgesetzbuch—UGB I, 2008. 41 UBA, Luftqualität 2015 (Dessau: Umweltbundesamt, 2016), 6–14. 42 For passenger cars and light-duty vehicles, see 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; 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 and 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) [2012] OJ L142/16.

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198 olaf dilling and wolfgang köck the issue of traffic-related emissions, especially particulate matter and sulphur oxides43 and the harm done to the global climate by motor vehicle traffic. Apart from that, air pollution policy in Germany can be seen as a success story. After all, the regulation of large point sources (industrial plants, power stations, etc.) succeeded very early on and in a very effective and efficient way. This policy also had a decisive impact on the design of the 1996 European IPPC Directive, which was later replaced by the Industrial Emission Directive (IED).44 The Federal Immission Control Act dates to 1974 and was amended numerous times (Bundes-Immissionsschutzgesetz – BImSchG).45 Its aim is to protect humans and the environment against harmful environmental impacts and other hazards as well as to prevent damage to the environment (§ 1(1) BImSchG). The Act determines harmful environmental effects as ‘emissions which, according to their nature, extent or duration, are liable to cause hazards, considerable disadvantages or considerable nuisance to the general public or the neighbourhood’ (§ 3(1) BImSchG). According to § 3(2) BImSchG, emissions are air pollutants, but also noise, light, vibrations, beams and similar effects; the BImSchG is therefore not only an air pollution control law but also a noise reduction law and a law for the limitation of electromagnetic fields generated by power lines or mobile phone masts.46 Inspired by European law, air quality law is also enshrined in the BImSchG with the clean air plan as its central instrument of coordination and control.47

9.3.1.2 The Regulation of Point Sources: Industrial Installations Legislation The core element of BImSchG is legislation dealing with installations requiring licensing (§§ 4–21 BImSchG), which can also be referred to as industrial installations law. More than twenty years before the EU with its IPPC Directive placed large industrial facilities under licensing and supervision obligations, Germany had established a standard for the prevention of air pollution with this law and its sub-statutory regulations. In particular, it placed operators under legal obligations, both to protect the environment from harm and to take further preventive measures in accordance with the technological state of the art. Compliance with these obligations is reviewed by the competent authority in the licensing procedure and is subject to continuous monitoring by the authorities. A number of e lements of this

43 W. Köck and K. Lehmann, ‘Die Entwicklung des Luftqualitätsrechts’ (2013) 24 Zeitschrift für Umweltrecht 67, at 72–3. 44 See the Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control [1996] OJ L257/25 and the 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. 45 For an overview, see H.-J. Koch, Umweltrecht (Munich: Vahlen, 4th edn. 2014), sec. 4, no. 39; see also H. D. Jarass and J. DiMento, ‘Through Comparative Lawyers’ Goggles: A Primer on the German Environmental Law’ (1993) 6 Georgetown International Environmental Law Review 47, at 60. 46 For the problem of electromagnetic fields in the case of power lines, see W. Köck, ‘Development of Electricity Transmission Lines in Germany and Protection of Residential Areas Against the Risks of Electric and Magnetic Fields’ in J. Vedder, L. Squintani, M. Reese, and B. Vanheusden (eds.), Sustainable Energy United in Diversity. Challenges and Approaches in Energy Transition in the European Union (Cambridge: Cambridge University Press, 2014), 203–18. 47 Köck and Lehmann, ‘Die Entwicklung des Luftqualitätsrechts’, at 67, 68–72.

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germany 199 German approach were adopted by the 1996 European IPPC Directive,48 such as the concept of basic obligations and the ‘best available techniques—BAT’ obligation, which in Germany— unlike in the EU—is read as a special aspect of precaution.49 There is a fundamental distinction between protection and prevention generally in German environmental law and in particular in air pollution law. This distinction can be exemplified by the difference between hazard prevention versus precaution of risk or—respectively— between protective emissions standards versus precautionary emission standards.50 This distinction is particularly relevant to the legal protection of third parties. According to the case-law of the Federal Administrative Court, affected neighbours of an industrial installation can principally only invoke protective emission standards, but not precautionary measures. The argument is that the latter are in the general interest of the public and not in the specific interests of third parties.51 The so-called ‘Aarhus’ law will also challenge this German approach since it is obvious that the German system of legal protection in environmental matters is conceptualized far too narrowly (see section 9.4).52

9.3.1.3 Climate Protection The federal government has set itself ambitious targets in its climate and energy policy, which particularly applies in combination with the phasing out of nuclear power plants by 2022.53 By 2020, greenhouse gas (GHG) emissions shall be reduced by 40 per cent compared to the base year 1990. By 2015, however, only a reduction of 27.2 per cent had been achieved.54 It is currently not certain, whether the target can still be met. After all, German GHG mitigation policy profited from reunification, because the obsolete and lignite-based industries of the collapsed GDR had to be shut down or modernized. However, reunification’s ‘windfall gains’ alone are far from sufficient to reach the target. However, Germany puts special emphasis on promoting and implementing renewable energies in its climate protection policy. Yet, no independent efforts have been made to oblige large industrial installation (and power plants) to reduce their GHG emissions beyond the ‘state of the art’ (see the express exemption in § 5(2) BImSchG), because in this area the European emission trading scheme exclusively applies.55 48 Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control. 49 For the differences between the European and German concept of precaution, see W. Douma, ‘The Precautionary Principle in the European Union’ (2000) 9 Review of European, Comparative, International Environmental Law 132; W. Köck, ‘Die Entwicklung des Vorsorgeprinzips im Recht - ein Hemmnis für Innovationen zum nachhaltigen Wirtschaften?’ in Bernd Hansjürgens and Ralf Nordbeck (eds.), Chemikalienregulierung und Innovationen zum nachhaltigen Wirtschaften (Heidelberg: Physica-Verlag, 2005), 85–120, at 88. 50 BVerwGE 119, 329; seminal R. Breuer, ‘Gefahrenabwehr und Risikovorsorge im Atomrecht’ (1978) Deutsches Verwaltungsblatt 829, at 829–39. 51 BVerwGE 72, 300. 52 E. Sharpston, Opinion of Advocate General Sharpston on Trianel Kohlekraftwerk Lünen (European Court of Justice, 2010); S. Schlacke, ‘Bedeutung von Verfahrensfehlern im Umwelt- und Planungsrecht’ (2016) Umwelt- und Planungsrecht 478; W. Köck, ‘Die Mitwirkung der Zivilgesellschaft am Verwaltungshandeln—eine Bilanz’ (2016) Zeitschrift für Umweltrecht 643. 53 BMWi (2016), ‘Die Energie der Zukunft’; for nuclear energy law, see section 9.5. 54 BMWi (2016)‚ ‘Die Energie der Zukunft’, at 60. 55 Critical, H.-J. Koch and A. Wieneke, ‘Klimaschutz durch Treibhausgashandel’ (2001) Deutsches Verwaltungsblatt 1085 and G. Winter, ‘Das Klima ist keine Ware: Eine Zwischenbilanz des Emissionhandelssystems’ (2009) 20 Zeitschrift für Umweltrecht 289.

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200 olaf dilling and wolfgang köck The promotion and implementation of renewable energies is a mainstay of the ‘Energiewende’ (energy transition) in Germany. In this respect, the transformation of the electricity sector was particularly successful. It was essentially achieved by expanding onshore wind energy. Between 2004 and 2015, the share of renewable energies in gross final energy consumption rose from 5.8 per cent to 14.7 per cent.56 The share of renewable energies in gross electricity consumption rose from 3.4 per cent to 31.6 per cent between 1990 and 2015.57 To achieve this, an effective system of obligations and incentives for the feed-in of renewable energies into the power grid was anchored in the Renewable Energies Act (Erneuerbare-Energien-Gesetz, EEG) which was already amended several times. Until recently, this system consisted of a clear priority for feeding renewable energies into the power grid, an entitlement for priority connection to the power grid, an entitlement to an extension of the electricity grid to allow the best possible feed and remuneration claims for the feed-in of renewable electricity into the grid. The latter especially has generated economic incentives for investment in renewable energies. This system was financed through a so-called ‘EEG-Umlage’ (EEG levy), which electricity consumers are required to pay. In 2017 however, the fixed remuneration claim was replaced in most instances—particularly in the bigger projects—by a tendering procedure. Successful bidders receive a market premium, which is determined in the tender. This reform primarily serves to reduce prices for electricity while at the same time continues to promote sustainable energy production.58 The high growth in renewable energies is mainly due to wind energy. However, because wind farms are moving closer and closer to residential areas and as requirements of nature and species protection make it more difficult to find suitable sites, it increasingly faces issues of acceptance. In addition, the German energy transition faces problems resulting from primary EU law. In effect, German renewable energy policy can nowadays only be conducted in close consultation with the EU Commission,59 since it entails potential subsidies. Compared to the electricity sector, the transformation of the heating as well as the transport sector has made little progress. In both subsectors, the federal government fell short of its goals. The targets for improving energy efficiency are also unlikely to be achieved.60 In conclusion, until now the German energy transition has been hardly more than an ‘electricity transition’.

9.3.2 Water Legislation Water protection policy in Germany is elaborate.61 This applies in particular to efforts to deal with waste water but also to the concept of protecting groundwater. Despite all the efforts and achievements, however, German water bodies are still far from in the good state 56 BMWi Zeitreihen zur Entwicklung der erneuerbaren Energien in Deutschland, 5. 57 BMWi Zeitreihen zur Entwicklung der erneuerbaren Energien in Deutschland, 5. 58 See the translation of the EEG 2017, available at: http://www.bmwi.de/Redaktion/EN/Artikel/ Energy/res-2017.html. 59 E. Gawel and others, ‘The Future of the Energy Transition in Germany’ (2014) 4 Energy, Sustainability and Society 1. 60 BMWi (2016), ‘Die Energie der Zukunft’. 61 See, in particular, W. Köck, ‘Water Management and Protection in Germany’ in M. Alberton and F. Palermo (eds.), Environmental Protection in Multi-Layered Systems: Comparative Lessons from the Water Sector (Leiden, Boston: Martinus Nijhoff Publishers, 2012), 315–37.

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germany 201 required by the EU Water Framework Directive (WFD). European water quality targets considerably exceed the existing German targets. The WFD-established approach to the management of river basins also posed adaptation problems for reasons of administrative competences of Länder. Water management and water protection as well as flood protection are summarized in the Wasserhaushaltsgesetz (WHG—Federal Water Management Act). Complementary regulations can be found in the Länder water laws.

9.3.2.1 Status of Water Bodies Germany is a country rich in water resources. The potential water volume for management (the so-called ‘water supply’) amounts to 188 billion m3 annually.62 Of this volume, in most regions less than 20 per cent are currently used for economic purposes. Only in some regions, particularly in the river basins of the Elbe, Weser, and Rhine, the utilization rate is above 20 per cent, which is considered by the European Environment Agency as ‘water stress’.63 The most important water user in Germany is the energy sector, which annually uses 19.7 billion m3 of water for cooling purposes in its power plants. Approximately five billion m3 of water are required for public water supply.64 The high volume of available water in Germany leads to the fact that volume management requires special measures only in some German regions.65 This also applies to groundwater. Only 4 per cent of groundwater bodies currently do not reach a good quantitative status.66 The main management challenge is the management of quality, particularly of surface waters. These management challenges are generally well under control with regard to chemical water quality: A survey of the status analysis in the 2009 water management plans showed that 88 per cent of all surface water bodies are already in a good chemical state. However, in this assessment the quality standards of Directive 2008/105/EC on e nvironmental quality standards for surface waters had not yet been taken into account, so that a reassessment would presumably show a worse picture emerging67 due to the new Biota limits for ubiquitous pollutants. Only a few surface waters reach the ecological water quality required by European law. The evaluation of the 2009 management plans showed that only 10 per cent of surface water bodies have or are likely to have the desired good state.68

9.3.2.2 Water Protection Like air pollution control, water pollution protection has been a success story for many years. This primarily concerned point sources for the discharge of industrial and domestic 62 UBA, Water Resource Management in Germany—Part 1: Fundamentals (UBA, 2010), 16. 63 R. Collins, P. Kristensen, and N. Thyssen, Water Resources Across Europe—Confronting Water Scarcity and Drought (EEA Report, European Environment Agency, 2009), 16. 64 UBA, Water Resource Management in Germany—Part 1, 16, 18. 65 Here, climate change could lead to future need for action; see BMU, Die Wasserrahmenrichtlinie— Auf dem Weg zu guten Gewässern (BMU, UBA, 2010), 48. For the anticipated impact of climate change on water legislation, see also M. Reese, ‘Die Anpassung an den Klimawandel im Bewirtschaftungssystem der Wasserrahmenrichtlinie’ (2011) Zeitschrift für Wasserrecht 61. 66 BMU, Die Wasserrahmenrichtlinie, 32. 67 M. Reese, ‘Voraussetzungen für verminderte Gewässerschutzziele nach Art. 4 Abs. 5 WRRL’ (2016) 27 Zeitschrift für Umweltrecht 203, at 204. 68 BMU, Die Wasserrahmenrichtlinie, 22.

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202 olaf dilling and wolfgang köck sewage. In this respect, a powerful system for waste water purification and control was established, composed of a ‘best available techniques’ approach and its effective sub-statutory concretization of industry-specific emission limits. The competent authority may only issue a permit for discharging waste water into water bodies (direct discharge)—above the quality requirements stipulated by the WFD—if the quantity and the harmfulness of the waste water is kept as low as being the case when the respective waste water is discharged using the best available techniques (§ 57(1) no. 1 WHG). The Act authorizes the federal government to determine requirements for the discharge of waste water which are in accordance with the best available techniques. Consequently, the federal government introduced the so-called Waste Water Regulation (Abwasserverordnung), which currently sets emission standards for fifty-seven different economic sectors.69 This means that Germany exceeds the European emission limits significantly. Nevertheless, now the WFD has also established a ‘combined approach’ (quality-oriented river basin management, on the one hand, and emission-oriented point source regulation, on the other hand) (Article 10 WFD) and thus taken account of a German basic idea. The German policy to protect groundwater was also successful, in particular by protecting drinking water supplies through the establishment of water protection areas. More than 13,000 water protection areas occupying a total of 43,000 km² were established by Länder governments.70 In these areas, all activities which may have negative effects on water, in particular intensive farming, are prohibited. Farmers are paid a financial compensation for limiting their agricultural activities (§ 52(5) WHG), which ensures wide acceptance of this system.71 Traditional regulatory water protection is supplemented by economic instruments in the form of environmental water taxes. A sewage tax is levied for discharging sewage into water bodies in order to charge for the residual pollution, which persists despite sewage treatment. Similarly, a so-called ‘water extraction fee’ is levied for the removal of water from the natural water cycle. Both charges are to be distinguished from conventional usage fees.72

9.3.2.3 Water Protection and Agriculture German water protection policy has largely failed, when it comes to regulating agriculture, which is in various ways responsible for the fact that water bodies are not in good condition.73 Agriculture pollutes water significantly by putting nutrients and pesticides into ground- and surface water. Draining additionally contributes to degradation of water bodies, which falls within the responsibility of water and soil associations in which agricultural interests

69 UBA, Water Resource Management in Germany—Part 1, 84. 70 Ibid., at 76. 71 W. Köck, ‘Zur Entwicklung des Rechts der Wasserversorgung und der Abwasserbeseitigung’ (2015) 26 Zeitschrift für Umweltrecht 3, at 13. 72 E. Gawel and others, Weiterentwicklung von Abwasserabgabe und Wasserentnahmeentgelten zu einer umfassenden Wassernutzungsabgabe (Leipzig: Helmholtz-Zentrum für Umweltforschung – Institut für Infrastruktur und Ressourcenmanagement, 2011). 73 According to a 2010 Umweltbundesamt report on the state of water management planning in Germany, 370 out of 1,000 groundwater bodies are not in a good state. In almost all cases, this deficiency is down to agricultural nutrient input. 7,400 out of 9,900 surface water bodies are significantly strained by agricultural nutrient inputs. In addition, agricultural drainage is one of the main reasons for the designation of water bodies as ʻsignificantly altered water bodiesʼ. See BMU, Die Wasserrahmenrichtlinie, 53.

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germany 203 dominate. Since nutrient inputs from agriculture originate from diffuse sources,74 regulatory legal control reaches its limits. It is true that the European Nitrate Directive75 established guidelines for fertilizer application per unit of economic activity, but it is difficult to monitor these guidelines. These problems could be tackled by better harmonizing water and agricultural policies at the European level. Attempts to do so exist, but there is still no comprehensive success.76 The EU Commission recently launched infringement proceedings against Germany because of insufficient measures taken to reduce nitrate pollution.

9.3.3 Waste Legislation Since its emergence in the 1970s, German waste legislation has developed from a waste disposal law into a comprehensive recycling law. As such, it sets obligations to primarily avoid waste or to recycle it. It establishes requirements for safe recycling and allows disposal only if recycling is technically not possible or is disproportionately expensive. The development of recycling legislation was significantly influenced by European waste legislation. At the same time, however, German law also exerted a strong influence, as is particularly apparent in the field of product responsibility. A dynamic interplay of waste management and technology development led to top recycling rates in Germany. While recycling of substances is essentially promoted by private companies, public waste management has instead pursued the path of energy recovery. German law prescribes very strict emission limits for waste incinerators (19th BImSchV), so that they regularly emit fewer air pollutants than ‘regular’ large combustion plants. However, in the long term, thermal utilization does not comply with European waste legislation, which obliges Member States to prioritize recycling.77 In German waste law, the demarcation between waste recycling primarily by the free market and predominantly public waste disposal plays a central role. It is significantly shaped by European waste legislation and includes a grey area as many disposal procedures combine elements of recovery and disposal. This becomes apparent with regard to waste mixtures only partially recyclable, energetic use of waste by incineration, and the use of waste for filling in mining and landscaping. The differences between commercial and industrial waste have now largely been clarified by numerous court decisions up to the European Court of Justice (ECJ)78 and certain legislative concretizations by the amendment to the EC-Waste Framework Directive 2008. This was implemented by the German Closed Substance Cycle Act (Kreislaufwirtschaftsgesetz—KrWG 2012). Today’s debate is mainly concerned with the 74 In Germany, there are about 349,000 farms with more than 2 hectares’ usable area; see ibid. 75 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. 76 For more details, see also Köck, ‘Water Management and Protection in Germany’, at 315–37, 330–1; see also S. Möckel and others, Rechtliche und andere Instrumente für vermehrten Umweltschutz in der Landwirtschaft (Dessau: Umweltbundesamt, 2014). 77 See M. Reese, ‘§ 7’ in H. D. Jarass and F. Petersen (eds.), Kreislaufwirtschaftsgesetz: KrWG—Kommentar (Munich: C.H. Beck, 2014), 179–95, sec. 7 no. 24 with further references. 78 ECJ, Judgment of 13 February 2003, Wallonie, C-228/00, EU:C:2003:91; Judgment of 13 February 2003, Commission v Luxembourg, C-458/00, EU:C:2003:94; Judgment of 27 February 2002, ASA, C-6/00, EU:C:2002:121; BVerwGE 123, 247; BVerwGE 111, 241.

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204 olaf dilling and wolfgang köck recoverable share of municipal household waste, such as waste paper, second-hand clothes, and metals. In an endeavour to find a compromise that would also comply with European legislation, the German legislature included very complicated provisions into German waste law, which ever since have occupied the courts. The so-called ‘product responsibility’ (Produktverantwortung) is an innovation that is largely due to German legislation. This principle (often translated as ‘extended producer responsibility’) is now used to regulate waste and material flows in Europe and beyond.79 First, it was introduced with the Packaging Ordinance in 1991 and later codified in §§ 22 et seq. of the old German Closed Substance Cycle and Waste Management Act (Kreislaufwirtschaftsund Abfallgesetz—KrW-/AbfG, today §§ 23 et seq. KrWG).80 The producer’s responsibility for a product does not come to an end when their products have become waste. The aim of this provision is to anticipate the requirements of waste disposal (in the form of basic obligations) already in the phase of product development and production.81 Extended producer responsibility involves regulatory, economic, and self-regulatory instruments in order to influence complex economic and technical processes in value-chains. An example are mandatory deposit systems for certain packaging, which can be found in Germany and certain Scandinavian countries, or rules for the take-back of secondary packaging, which were introduced via § 7 Packaging Ordinance and led to the establishment of the Duales System Deutschland (DSD with the ‘Green Dot’ trade mark). Despite fundamental harmonization due to the internal market competence, such divergences from European waste legislation are made possible by the Packaging and Packaging Waste Directive 94/62/EC, which had mainly been adopted to avoid imminent German unilateral action in the packaging sector.82 However, the leeway for establishing obligations for the reuse, prevention and recycling of waste granted by the Directive in Articles 5 and 7 does not exclude the need for national regulations to comply with primary law.83

9.3.4 Nature and Species Protection Legislation Most parts of Germany are characterized by manmade landscape. Only in the Alps and in the Wadden Sea at the North Sea Coast have larger areas of nature remained in their o riginal form. There is currently a political debate about the promotion of wilderness areas in which natural dynamics and processes are to be largely undisturbed by human influences.84 Although there are no outstanding biodiversity hotspots in Germany, there are still habitat 79 N. Sachs, ‘Planning the Funeral at the Birth: Extended Producer Responsibility in the European Union and the United States’ (2006) 30 Harvard Environmental Law Review 51. 80 K. Meßerschmidt, Europäisches Umweltrecht: Ein Studienbuch (Munich: C.H. Beck, 2011), sec. 18, no. 67. 81 Sachs, ‘Planning the Funeral at the Birth’. 82 European Parliament and Council Directive 94/62/EC of 20 December 1994 on packaging and packaging waste [1994] OJ L365/10. 83 ECJ, Judgment of 14 December 2004, Radlberger, C-309/02, EU:C:2004:799; Judgment of 14 December 2004, Commission v Germany, C-463/01, EU:C:2004:797. 84 SRU, Umweltgutachten 2016: Impulse für eine integrative Umweltpolitik (Berlin: Erich Schmidt Verlag, 2016), 301–45.

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germany 205 types of European importance, especially when it comes to traditional cultural landscapes. In addition, there are species for which Germany has special responsibility because essential populations are only found here.85 The protection of areas and species was strongly influenced by international and European legislation as a result of numerous international agreements and especially the Habitat Directive 92/43/EEC. For Germany, the implementation of the Habitat Directive involved a complete conceptual change since the existing German legislation on nature and species protection included much softer provisions. The decision whether a certain area was to be designated as a protection area was hitherto subject to political discretion. In the past, protection areas were therefore rather small in size in order to take account of socio-economic considerations from the outset. Species protection also included comparatively weak provisions, because harm to protected species occurring as the result of permissible behaviour was not regarded as deliberate (and thus prohibited) action but as unintended collateral damage. This situation changed with the Habitats Directive, ECJ case-law, and also increasingly with the decisions of the Federal Administrative Court. After a few years of reluctance, European nature conservation legislation finally arrived in Germany. The worries of some prominent lawyers that larger infrastructure projects would hardly ever be approved due to the Habitats Directive86 have not materialized, since the Directive’s exemption clauses open up numerous possibilities. German nature conservation legislation and also the implementation of European legislation in this field are summarized in the Bundesnaturschutzgesetz (BNatSchG— Federal Nature Conservation Act). However, nature conservation legislation also exists at the level of the Länder. It may contain supplementary but also diverging regulations (see section 9.2.2.2). The so-called ‘naturschutzrechtliche Eingriffsregelung’ (provision on intervention under nature conservation law) (§§ 13 et seq. BNatSchG) is a special German feature, which has existed since the 1970s. It aims to counteract interventions that lead to a deterioration of nature and landscape, irrespective of a status of protected area.87 It requires that all such interventions are conducted as carefully as possible and that remaining deteriorations should, if possible, be compensated by nature conservation measures. The obligation to compensate for interventions applies to any construction and infrastructure project that is subject to an authorization procedure and to other projects which are subject to approval procedures. Being very important for nature and landscape, agricultural soil cultivation is, however, legally privileged. The BNatSchG assumes that agriculture, as well as forestry and fishery, which follows ‘good practice’, corresponds to the aims of nature conservation and is therefore not to be regarded as an intervention (§ 14(2) BNatSchG). The intervention provision can be categorized as public law environmental liability. In its 2004 Environmental Liability Directive, the EU adopted some basic principles of the intervention provision and transferred them into an amended European approach.

85 BfN, ‘Arten in besonderer Verantwortung Deutschlands’, available at: https://biologischevielfalt. bfn.de/verantwortungsarten.html. 86 W. Vallendar, ‘Großprojekte und Anforderungendes Europäischen Naturschutzrechts’ (2007) 5 Zeitschrift für Europäisches Umwelt- und Planungsrecht 275. 87 W. Köck, ‘Die städtebauliche Eingriffsregelung’ (2004) Natur und Recht 1–6.

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9.3.5 Nuclear Legislation Nuclear law is an example of the extent to which the German legislator can continue to exercise its sovereign powers in environmental law. The unilateral decision to phase out all nuclear power stations raised the question of its compatibility with European legislation, in particular the EURATOM Treaty. However, the EURATOM Treaty’s aim is to enable the peaceful use of nuclear energy and to introduce the respective safety standards. This includes neither an obligation to use nuclear power nor does it authorize EU legislation, so that the Treaty does not get in the way of phasing out nuclear energy.88 Germany’s sovereign rights, however, end at the border according to ECJ case-law. In other words, despite the cross-border effects of eventual incidents, national safety standards cannot be argued to apply extra-territorially to other Member States, given that their safety standards meet EURATOM requirements.89

9.4 Implementation Framework The approach described above as bureaucratic legalism does not only shape the substantive regulations themselves, but also their legal application and implementation, right up to the possibility of legal protection. Since the mid-1970s, that is, the early days of the German environmental and legal policy debate, this approach had been blamed for a much-debated implementation deficit.90 However, this deficit is not a specific feature of German environmental law. On the contrary, considerable implementation deficits can also be found in other Western countries such as the United States or the United Kingdom, where adversarial procedures as well as liability-based and economic instruments are more common. An evaluation of ‘new’ environmental policy instruments shows that they do not necessarily perform better than command and control.91 In addition, there are also ways to improve the performance within the traditional paradigm. Instead of completely switching to market-based instruments, Germany often responded to the implementation issues in case of complex projects with the concept of ‘normative concretization’ discussed earlier. An example of this concept is the regulation of air pollution in the case of point sources or industrial installations law. This regulation set standards with regard to control technology, since it developed a transparent list of criteria regarding the question, which installations shall be subject to licensing. At the same time it authorized the federal government to establish 88 G. Winter, ‘Rise and Fall of Nuclear Energy Use in Germany: Processes, Explanations and the Role of Law’ (2013) JEL 95; D. Scheuing, ‘Der Atomausstieg aus der Sicht des Europarechts’ in W. Bayer and P. M. Huber (eds.), Rechtsfragen zum Atomausstieg (Berlin: Berliner Wissenschafts-Verlag, 2000), 87–122; but see also U. Di Fabio, Der Ausstieg aus der wirtschaftlichen Nutzung der Kernenergie (Köln: Heymann, 1999), 45–6. 89 ECJ, Judgment of 27 October 2009, Land Oberösterreich v ČEZ, C-115/08, EU:C:2009:660. 90 See the classic study by R. Mayntz, H.-U. Derlien, and E. Bohne, Vollzugsprobleme der Umweltpolitik: empirische Untersuchung der Implementation von Gesetzen im Bereich der Luftreinhaltung und des Gewässerschutzes (Stuttgart: Kohlhammer, 1978); E. Rehbinder, ‘Controlling the Environmental Enforcement Deficit: West Germany’ (1976) 24 American Journal of Comparative Law 373. 91 S. E. Mackie, ‘The Environmental Civil Sanctions Regime: Has the Practice Reflected the Intention?’ (2013) 21 Environmental Liability 174.

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germany 207 sub-statutory regulation. These regulations determined the requirements for the protection from and prevention of harmful environmental impacts that operators had to prove in the licensing procedure. These are the already mentioned Technical Instructions on Air Quality Control and on Noise Protection. They include requirements in quantified form (emission limits for protection and emission limits for precaution) so that the competent authority can refer to clearly defined and quantified requirements when applying law. Thus, ‘normative concretization’ contributes effectively and efficiently to the implementation of laws.92 Therefore, it meets the requirements of ‘SMART-regulation’, 93 which was discussed at European level at a much later time.94 The IPPC Directive gave Germany the option to anchor the concept of normative concretization,95 so that Germany could largely maintain its own system despite the considerable impact European law had. Concerning natural resource management the state administration is similarly involved in pursuing the public interest, while—in line with EU law—the focus is more on planning instruments. For example, in water law, the Federal Water Act (WHG) established a publiclaw management system, which in principle places all water use under the condition of state approval (§§ 8, 68 WHG).96 In addition, the Act stipulates that the water owner has no entitlement to its use (§§ 12(1), 4(3) WHG). This legislative decision was confirmed by the Federal Constitutional Court long ago and was even deemed to be a constitutional requirement, since ensuring the availability of water resources was seen as an overriding public interest.97 The authorization of water use is therefore left to the management discretion of the state (§ 12(2) WHG). When exercising this discretion, the competent authority should comply with the management objectives laid down by European water protection legislation, in particular the Water Framework Directive (§ 12 in conjunction with § 3 no. 10 and §§ 27, 44, 47 WHG). The management must therefore be carried out in such a way that good water conditions can be achieved (requirement for improvement) and that in any case no significant deterioration of the existing state occurs.98 Management discretion is usually exercised by means of management plans and programmes of measures prescribed under European law. These plans provide the grounds for individual decisions at the implementation level. It is only when a management problem is not addressed by the management plan now prescribed by European law that discretion is exercised at the level of the individual decision, as has been customary so far.99 However, as indicated above, there are also elements in German environmental law which do not fit into the general picture of bureaucratic legalism. Since the 1980s, a host of new policy instruments have been promoted in German environmental law.100 92 G. Lübbe-Wolff, Modernisierung des Umweltordnungsrechts (Bonn: Economica-Verlag, 1996). 93 S.M.A.R.T stands for specific, measurable, achievable, relevant, timed. 94 ECA, Ist die Cross-Compliance-Regelung wirksam? Sonderbericht 8/2008 (European Court of Auditors, 2008). 95 See Art. 9 (8) Directive 96/61/EC; Art. 6 Directive 2010/75/EU. 96 Köck, ‘Water Management and Protection in Germany’, at 315–37, 321. 97 BVerfGE 58, 300. 98 See ECJ, Judgment of 1 July 2015, BUND v Germany, C-461/13, EU:C:2015:433. 99 F. Hasche, Das neue Bewirtschaftungsermessen im Wasserrecht: Die Auswirkungen der Wasser rahmenrichtlinie und der IVU-Richtlinie (Berlin: Erich Schmidt, 2005); Köck, ‘Water Management and Protection in Germany’, at 315–37, 321. 100 R. Wurzel and others, ‘From High Regulatory State to Social and Ecological Market Economy? New Environmental Policy Instruments in Germany’ (2003) 12 EnvironPolit 115.

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208 olaf dilling and wolfgang köck The traditional German model of the regulatory state is also challenged by informal modes of regulation, for example, when the administration negotiates with the addressees of legislation. Administrative science indicates that informal administrative action can be effective, if it enables the administration to react to situations of legal uncertainty.101 However, public stakeholders may become involved in multiple ways, not only in administrative decision-making, but also in informal self-regulatory rule-making and in legal procedure at court. In the context of extended producer responsibility, the rules introduced by § 7 Packaging Ordinance, which led to the establishment of the DSD-System (‘Green Dot’), are a relatively prominent example of regulated self-regulation. In this scheme, regulatory obligations for individual retailers to take back secondary packaging could be averted by establishing a collective self-regulatory system for the take-back of such packaging. While these forms of self-regulation have been propagated as ‘new’ instruments or modes of governance, the German regulatory approach always contained some forms of corporate rule-making. This especially applies for industrial standards, which were crucial to determine levels of protection in the context of technological change. At the same time, the political process was heavily influenced by industrial associations such as Association of the German Car Industry (Verband der deutschen Automobilindustrie—VDA). Those a ssociations have traditionally been strong in Germany, and they have exerted considerable influence on the legislative process.102 The VDA has also directly influenced European decision-making since the 1990s via subsidiaries of their main members in other EU countries.103 Concerning the involvement of civil society, the Aarhus Convention and its adoption by European legislation via Directive 2003/35/EC led to significant change. It contributed to the fact that not only government authorities and project managers, but also the public is involved in environmental decision-making procedures. This has a major impact on the control of the administration in the decision-making process, so that better legal implementation can be expected due to the improved inclusion and control possibilities of the public.104 The system of legal protection in environmental matters was also improved d ecisively. Here, too, the Aarhus Convention, the European Directive 2003/35/EC, the case-law of the ECJ, and the Federal Administrative Court ensured jointly that access to courts was significantly improved in environmental matters. This helped to remove a ʻstructural imbalanceʼ, which had always existed in favour of project managers since they had been entitled to bring proceedings.105 There are still deficits, such as Environmental Appeals Act (Umweltrechtsbehelfsgesetz) which does not yet fully meet Aarhus Convention requirements, especially as Article 9(3) of the Aarhus Convention was only partially taken into account. Still, progress in legal protection is considerable and substantially improves the control opportunities of environmental associations and third parties. This is also urgently necessary because the environmental 101 E. Bohne, Der informale Rechtsstaat: Eine empirische und rechtliche Untersuchung zum Gesetzesvollzug unter besonderer Berücksichtigung des Immissionsschutzes, vol. 49 (Berlin: Duncker und Humblot, 1981). 102 R. Speth, Lobbying in Germany (Berlin: Transparency International Deutschland e.V., 2014); see also the country reports at: http://eurlobby.transparency.org/. 103 D. Coen, ‘The European Business Interest and the Nation State: Large-firm Lobbying in the European Union and Member States’ (1998) 18 Journal of Public Policy 75, at 92–4. 104 Köck, ‘Die Mitwirkung der Zivilgesellschaft am Verwaltungshandeln’, at 643. 105 Ibid.

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germany 209 administration has suffered serious cuts in these times of scarce public funds. The ‘lean state’ needs control by a legally authorized public. The Aarhus Convention and European legislation made this possible and Germany learned its lesson—in spite of tough resistance. The Aarhus Convention also helped to strengthen the role of the German judiciary in the implementation of environmental law. More than ever, environmental law is therefore driven by legal proceedings. Still, according to its public law character, the focus lies primarily on administrative law, which is relevant for the competent jurisdiction. The German court system consists of different branches, including constitutional jurisdiction, ordinary jurisdiction (e.g. private and criminal law) and specialized jurisdiction (administrative courts, etc.). Environmental disputes are brought before administrative courts, when decisions are questioned that oblige the administration to act, or when certain sub-statutory norms, such as legislative decrees, are legally reviewed. For this branch of the judiciary, the court of first instance is usually the local administrative court (Verwaltungsgericht) and in most cases, judgments may be appealed to the higher administrative court (Oberverwaltungsgericht/ Verwaltungsgerichtshof ). In certain cases revision is possible, which is restricted to questions of legal assessment, at the Federal Administrative Court (Bundesverwaltungsgericht) in Leipzig. In principle, the fundamental questions of administrative law are settled by the Federal Administrative Court. Therefore its case-law used to determine, to a great extent, the interpretation of German environmental law. However, if questions of fundamental rights or other constitutional guaranties of the Basic Law are at stake, the Federal Constitutional Court in Karlsruhe is in charge. With the progressive Europeanization of German environmental law, the ECJ has emerged as a third main judicial player in the shaping of German environmental law. The integration of German environmental law into the EU legal system was particularly supported by the procedure for preliminary rulings according to Article 267 TFEU, which is often made use of by lower courts and has recently even been used for the first time by the Federal Constitutional Court.106

9.5 Conclusion Almost fifty years after the start of systematic environmental legislation in Germany, the emerging picture is a mixed one. The country has lost its status as a leader in environmental policy in many areas which it has had or claimed to have had for a long time. Indeed, Germany has even developed into a ‘laggard’ in some areas, as in the case of European policy on car emissions or the ‘Aarhus’ policy. However, in the field of climate policy, especially in the promotion of renewable energies, the handling of nuclear energy, and the development of a recycling economy, Germany continues to be exemplary, with a distinct environmental profile—although sometimes, efficiency has been lacking. The technical orientation of German environmental law has reached its limits. In other words, it is no longer sufficient to make a certain state of environmental technology compulsory by fleshing out administrative rules. This becomes most obvious in areas where a 106 BVerfGE 134, 366–438.

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210 olaf dilling and wolfgang köck problem can no longer be addressed solely by regulating large point sources. Instead, as in the case of water pollution caused by agriculture many small and diverse sources of emissions, which lead to a significant cumulative effect, call for more flexible and incentive-driven instruments, such as a tax on fertilizers and imported feed. But the administrative orientation of German environmental legislation has also reached its limits for other reasons. While German environmental administration is still powerful, it has had to accept cuts in public spending. These cuts can only be adequately compensated if procedural rights that empower civil society are taken as an opportunity and not merely as some annoying duty under European and international law. The renewable energy policy, as well as the evolving environmental agricultural law (cross-compliance), both indicate that Germany increasingly tries to facilitate necessary environmental innovations by providing incentives for environmentally friendly behaviour. However, to initiate major transformations which require the coordination of large infrastructure development, a clear regulatory framework remains a necessity. To this extent, Germany, as well as the EU as a whole, will continue to depend on the distinct public law approach of ‘bureaucratic legalism’ with its planning and regulatory instruments. It will still be necessary to complement this approach sensibly with societal self-regulation, marketoriented solutions, and incentive systems. To sum it up, while it proves beneficial to keep some of its advantages, German environmental legislation has also benefitted greatly from European environmental legislation. This applies, in particular, to the field of so-called interdisciplinary environmental law (besides the rights of the Aarhus Convention this concerns particularly environmental impact assessment (EIA) and strategic environmental assessment (SEA)). This approach found its way into German legislation via European legislation. It is now bearing fruit, although resistance is still strong, with some attempting to avoid a system change as far as possible.

9.6 Acknowledgements The authors would like to thank Moritz Reese and Harry Bauer for helpful comments and assistance. The usual disclaimer applies.

9.7 Selected Bibliography Gawel, E. et al., ‘The Future of the Energy Transition in Germany’ (2014) 4 Energy, Sustainability and Society 1–9. Gunlicks, A., ‘German Federalism Reform: Part One’ (2007) 8 German Law Journal 111–31. Jarass, H. D. and J. DiMento, ‘Through Comparative Lawyers’ Goggles: A Primer on the German Environmental Law’ (1993) 6 Georgetown Environmental Law Review 47. Kloepfer, M., Umweltrecht (Munich: C.H. Beck, 4th edn. 2016). Koch, H.-J., Umweltrecht (Munich: Vahlen, 4th edn. 2014). Köck, W., ‘Water Management and Protection in Germany’ in M. Alberton and F. Palermo (eds.), Environmental Protection in Multi-Layered Systems: Comparative Lessons from the Water Sector (Leiden: Martinus Nijhoff Publishers, 2012), 315–37. Kunig, P., ‘German Constitutional Law and the Environment’ (1983) 8 Adelaide Law Review 318. Lundmark, T., ‘Systematizing Environmental Law on a German Model’ (1998) 7 Dickinson Journal of Environmental Law & Policy 1.

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germany 211 Ministry for the Environment, Nature Conservation and Nuclear Safety of the Federal Republic of Germany (ed.), Environmental code: draft = (Umweltgesetzbuch—UGB). Prepared by the Independent Expert Commission on the Environmental Code at the Ministry for the Environment, Nature Conservation and Nuclear Safety of the Federal Republic of Germany (Berlin: Duncker & Humblot, 1998). Rehbinder, E., ‘Controlling the Environmental Enforcement Deficit: West Germany’ (1976) 24 American Journal of Comparative Law 373. Sparwasser, R., Engel, R., and Voßkuhle, A., Umweltrecht—Grundzüge des öffentlichen Umweltschutzes (Heidelberg: C. F. Müller, 2003). Winter, G., ‘Environmental Governance in Germany’ in M. Alberton and F. Palermo (eds.), Environmental Protection in Multi-Layered Systems Comparative Lessons from the Water Sector (Leiden: Brill/Nijhoff, 2012), 55–81. Winter, G., ‘Rise and Fall of Nuclear Energy Use in Germany: Processes, Explanations and the Role of Law’ (2013) 25(1) Journal of Environmental Law 95–124.

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chapter 10

I n di a Bharat H. Desai and Balraj K. Sidhu

10.1 Overview

213

10.2 Allocation of Powers

213

10.3 Structure and Substance of Environmental Law

215

10.3.1 The Importance of Policy 10.3.2 Legislative Framework 10.3.2.1 The Water (Prevention and Control of Pollution) Act, 1974 10.3.2.2 The Water (Prevention and Control of Pollution) Cess Act, 1977 10.3.2.3 The Air (Prevention and Control of Pollution) Act, 1981 10.3.2.4 The Wildlife (Protection) Act, 1972 10.3.2.5 The Forest (Conservation) Act, 1980 10.3.2.6 The Environment (Protection) Act, 1986 10.3.2.7 The Public Liability Insurance Act, 1991

10.4 Implementation Framework

10.4.1 The Ministry Of Environment, Forests, and Climate Change 10.4.2 Central Pollution Control Board 10.4.3 State Pollution Control Boards (SPCBs) 10.4.4 Key Challenges 10.4.5 Role of the Judiciary 10.4.5.1 Doctrine of Absolute Liability 10.4.5.2 Polluter-Pays Principle 10.4.5.3 Precautionary Approach 10.4.5.4 Doctrine of Public Trust 10.4.5.5 Sustainable Development 10.4.5.6 The National Green Tribunal Act, 2010 10.4.5.6.1 Sand Mining 10.4.5.6.2 Marine Oil-spill Pollution 10.4.5.6.3 Air Pollution in the National Capital Territory

215 217 217

218 218 218 219 219 220

220 220 221 222 222 223 223 224 224 225 225 226 227 228 228

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india 213 10.4.5.6.4 Illegal Slaughter Houses 10.4.5.6.5 Ganga Pollution Cases

229 229

10.5 Conclusion

230

10.6 Selected Bibliography

230

10.1 Overview During the last half a century, protection of the environment has evolved as a matter of common concern of humankind. India has undergone significant attitudinal changes as regards the need to protect the environment. Environmental protection was earlier seen by many developing nations, including India, as a goal conflicting with developmental p riorities. Industrialized nations recommendations that the developing nations adopt e nvironmental protection policies was even regarded by some of them as trap. Giving expression to this feeling, in her address at the Stockholm Conference, the late Indian Prime Minister Mrs. Indira Gandhi asked: How can we speak to those who live in the villages and in slums about keeping the oceans, rivers and the air clean when their own lives are contaminated at the source? The rich countries may look upon development as the cause of environment destruction, but to us it is one of the primary means of improving the environment of living, of providing food, water, sanitation and shelter, of making deserts green and mountains habitable.1

The fact remains that India is mired in extreme poverty with a burgeoning population.2 Hence, there is a justifiable emphasis on socio-economic development. Notwithstanding this, however, the country generally does not seem to be lagging behind in domestic measures for the protection of environment.

10.2 Allocation of Powers The Constitution of India provides a framework for environment protection in that it requires the state and the citizens to protect the environment. Other constitutional provisions have also had a significant effect on environmental protection. Thus, although provisions specifically relating to the environment were absent from the original version of the Constitution, there were other significant provisions that provided an initial trigger for liberalization of standing rules, especially in cases involving the protection of human 1 Speech of the late Prime Minister of India, Indira Gandhi, on ‘Man and Environment’ at Plenary Session of the United Nations Conference on Human Environment, Stockholm, 14 June 1972; available at http://lasulawsenvironmental.blogspot.in/2012/07/indira-gandhis-speech-at-stockholm.html. 2 See Atlas of Sustainable Development Goals 2017: From World Development Indicators (World Bank: Washington DC, 2017), 2–3.

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214 Bharat H. Desai and Balraj K. Sidhu rights.3 Subsequently, the 42nd Constitutional Amendment (1976)4 included a Directive Principle in Article 48A (protection and improvement of the environment and safeguarding of forests and wildlife) and a Fundamental Duty in Article 51-A (g) (to protect and improve the natural environment, including forests, lakes, rivers and wildlife, and to have compassion for living creatures). Furthermore, Article 51 of the Constitution provides for an overarching framework for promoting international peace and security and particularly, clause (c) urges the state to endeavour to ‘foster respect for international law and treaty obligations’.5 Article 51 forms part of the Directive Principles of State Policy (DPSP) that are not intended to be enforceable by any court, but which are fundamental in the governance of the country and it is the duty of the state to apply these principles in making laws.6 In this context, the Indian Supreme Court has observed that: [I]n view of Article 51 of the directive principles, this Court must interpret language of the Constitution, if not intractable, which is after all a municipal law, in the light of the United Nations Charter and the solemn declaration subscribed to [by] India.7

Thus, whilst international legal norms are not directly enforceable in India in the absence of appropriate domestic legislation giving effect to these norms, they may have indirect impacts in this way. Treaty-making under the Indian Constitution is an executive act (Article 73). However, the power conferred is not absolute.8 Parliament has power inter alia to legislate with respect to entering into and implementing treaties and agreements (Article 246). In addition, Article 253 recognizes the power of Parliament to make laws for the whole or any part of India for ‘implementing any treaty, agreement or convention with any other country or countries, or any decision made at any international conference, association, or other body’. It implies that the treaty-making power of the executive extends even to matters within the competence of state legislatures. However, Parliament has so far not made any law regulating the procedure concerning the entering into treaties and agreements, nor with respect to 3 See the Constitution of India; available at: http://lawmin.nic.in/olwing/coi/coi-english/coi4March2016.pdf—Art. 21 (Protection of life and personal liberty), Art. 42 (Provision of just and humane conditions of work and maternity relief), Art. 47 (Duty of the State to raise the level of nutrition and the standard of living and to improve public health), and Art. 49 (Protection of monuments and places and objects of national importance). 4 This historic amendment led to an almost complete revision of the Constitution. It received assent of the President of India on 18 December 1976. It took place during an unprecedented internal emergency period (1975–77). When the new government came to power in 1977, it repealed most of the amendments; see D. Das Basu, Introduction to the Constitution of India (Nagpur: LexisNexis Butterworths, 20th edn. 2010), 458, 459. 5 For literature on the Indian Constitution, see S. Choudhry, M. Khosla, and P. Mehta (eds.), The Oxford Handbook of The Indian Constitution (Oxford: Oxford University Press, 2016). 6 Article 37 Constitution of India; available at: http://lawmin.nic.in/olwing/coi/coi-english/coi4March2016.pdf. 7 Chief Justice Sikri in KesavanandaBharthi v State of Kerala (1973) 4 SCC 225, 333. 8 Article 73 provides that in respect of any of the matters enumerated in the Concurrent List in VII Schedule to the Constitution, the Union will not have executive power unless the Constitution itself or law made by Parliament expressly provides to that effect; see State of MP v Bharat Singh AIR 1967 SC 1170.

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india 215 their implementation. As such the President’s power to enter into treaties remains unfettered by Constitutional limitations. In this respect, the official Indian position is understood to reflect the following observation of the National Commission to Review the Working of the Constitution: (I)t is left totally to the Executive to not only enter into treaties and agreements but also to decide the manner in which they should be implemented, except where such implementation requires making of a law by Parliament. And the fact of the matter is that once the Executive Government enters into a treaty, it would be, ordinarily speaking, quite embarrassing for the Parliament to reject the treaty . . . Theoretically speaking, however, it is always open to the Parliament to disapprove a treaty entered into by the Executive whereupon the treaty will have to (take) effect whatever. Moreover, if any treaty or agreement violates any of the provisions of the Constitution, it would be totally incompetent and ineffective and even the Vienna Convention would not stand in the way.9

As a result of this conferral of power to make treaties onto the executive, both formal and practical, international treaties do not automatically become effective in national law. Article 253 does not prescribe a legislative basis for giving effect to all the treaties concluded by India. In a way, it underscores that ‘treaties which are a part of international law do not form part of law of land unless expressly made so by legislature’.10 This affects the way in which environmental treaties are integrated into Indian national law.

10.3 Structure and Substance of Environmental Law 10.3.1 The Importance of Policy There is a symbiotic relationship between development of policy, law, and institutions. In India, there are sectoral policy frameworks, developed to complement the legislative provisions, which have significant practical effects. The ‘Policy Statement for Abatement of Pollution’,11 as well as the ‘National Conservation Strategy and Policy Statement on Environment and Development’ were published by the Ministry of Environment and Forests (MoEF) in 1992 to develop and promote initiatives for the protection and improvement of the environment.12 The Environmental Action Program (NAP) was also formulated in 1993 9 National Commission to Review the Working of the Constitution, ‘A Consultation Paper on TreatyMaking under our Constitution’, 8 January 2001; http://lawmin.nic.in/ncrwc/finalreport/v2b2-3.htm. See also Law and Practice concerning the Conclusion of Treaties, UN Legal Series ST./Leg./Ser./B/3, 1953 at 63 and UpendraBaxi, ‘Law of Treaties in the Contemporary Practice of India’ (1965) Indian Yearbook of International Affairs vol. XIV, at 137. 10 See Birma v State of Rajasthan AIR 1951 Raj.127. For further discussion, see C. H. Alexander, ‘International Law in India’ (1952) 1 The International and Comparative Law Quarterly 289. 11 For the Policy Statement see: http://envfor.nic.in/divisions/cpoll/psap.pdf. 12 For the Conservation Strategy see: http://envfor.nic.in/divisions/csurv/csps.pdf.

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216 Bharat H. Desai and Balraj K. Sidhu with the objective of improving environmental services and integrating e nvironmental considerations in to development programs.13 The forestry sector has also seen a flurry of policy initiatives as well as law-making and institution-building processes.14 The National Forest Policy (NFP) 1952, as a revised version of National Forest Policy of 1894, emphasized sustainable timber production. The 1952 policy was later replaced by the NFP of 1988.15 It laid prime emphasis on conservation of forests and meeting the needs of the local people, as well as allowing for their participation in protection and management of forests. This policy set a national objective of 60 per cent of the land in the hills, 20 per cent in the plains and in all 33 per cent of the total geographical area under the forest and tree cover. It also encouraged joint management of forests (JMF) involving villages and the rural population together with farm forestry and agroforestry schemes on private lands. It aimed at holistic resource protection and conservation of biodiversity. However, the lack of adequate resources to manage and develop the forests and shortage of staff have been major impediments in the effective implementation of such forest policy. Moreover, it has not been easy to follow the precepts of the NFP due to extreme poverty in rural areas. Hence, even if the government of India emphasizes the need for environmental conservation in its policies, the state governments are faced with their own revenue needs as well as local pressures to meet the demands of the forest dependent communities. Nevertheless, the 1999 National Forestry Action Programme (NFAP) sought to address issues of financial resources required, indigenous technology available, capacity building, and transfer of technology.16 Most significant, however, is the National Environment Policy (NEP) of 2006.17 It provides the basis for the integration of environmental concerns in all relevant development 13 The Environment Action Program was drawn up by the Union Ministry of Environment & Forests, some eighteen months after the 1992 Rio Earth Summit, to ‘integrate our concerns for conservation, sustainable development and human welfare with our quest for a dynamic economy exemplified in the on-going process of economic reforms’; see http://documents.worldbank.org/curated/en/655591468771651442/pdf/ multi-page.pdf. 14 For more details, see B. H. Desai and B. K. Sidhu, ‘Mapping Forest Governance: Reflection on Policy, Law and Institutional Framework’ (2017) 47(1) Environmental Policy and Law 34–43. 15 The National Forest Policy (1988) came in the wake of the candid admission that forests had suffered serious depletion. It was attributed to relentless pressures arising from the ever-increasing demand for fuel wood, fodder, and timber; inadequacy of protection measures; diversion of forest lands to non-forest uses without ensuring compensatory afforestation and essential environmental safeguards as well as the tendency to regard forests as a revenue-earning resource. In view of this the principal aim of Forest Policy was ‘to ensure environmental stability and maintenance of ecological balance including atmospheric equilibrium which are vital for sustenance of all life forms, human, animal and plant’. As such any derivation of direct economic benefit was to be subordinated to this principal aim; see http://moef.nic.in/downloads/ about-the-ministry/introduction-nfp.pdf and http://envfor.nic.in/legis/forest/forest1.html. 16 The National Forestry Action Program (NFAP) was launched on 9 August 1999 for ‘sustainable management of the forests and forest lands to meet the environmental, socio-economic and cultural needs of the present and the future generations’. It was designed as a comprehensive work plan for sustainable development of forests in the next twenty years as well as to achieve the national goal of 33 per cent geographic area of the country under forest and tree cover as laid down in the National Forest Policy, 1988; see http://envisjnu.tripod.com/envnews/nov99/action.html. 17 The National Environment Policy (NEP) was approved by the Union Cabinet on 18 May 2006. It was the outcome of ‘extensive consultations with experts in different disciplines, Central Ministries, Members of Parliament, State Governments, Industry Associations, Academic and Research Institutions, Civil Society, NGOs and the Public’. NEP became the first such comprehensive exercise that sought to

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india 217 processes. The NEP also emphasizes the need to institutionalize mechanisms to operationalize environmental concerns at all levels of government as well as the need to strengthen relevant linkages among various agencies at the central, state, and district levels. The NEP contains the following core principles: that human beings are at the centre of concerns for sustainable development and are entitled to a healthy and productive life in harmony with nature; that the right to development must be fulfilled to equitably meet the needs of present and future generations; that environmental protection shall constitute an integral part of the development process; that the precautionary approach is essential so that lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent credible threats of environmental degradation; and that economic efficiency is an important goal in various public actions for environmental conservation.18 The NEP’s key environmental objectives include conservation of critical environmental resources, intra-generational equity and security for those living in poverty, integration of the environment in economic and social development, efficiency in environment resource use, environmental governance, and enhancement of resources for environmental conservation. The NEP identifies a new framework for legal action that includes application of a mix of civil and criminal sanctions, adoption of innovative economic instruments, and publicprivate partnerships in strengthening environmental compliance and enforcement.

10.3.2 Legislative Framework No law can ever fulfil all the needs and meet all the challenges in a society. It must change with changing circumstances. In this context, law serves as a societal tool to combat problems at a given time or those which may arise in the future. The growing threats to our environment through developmental activities have created an urgent need to have strong laws in place.

10.3.2.1 The Water (Prevention and Control of Pollution) Act, 1974 This Act19 represented India’s first attempt to deal comprehensively with environmental issues. The Act prohibits the discharge of pollutants into water bodies beyond a given standard, and lays down penalties for non-compliance.20 The Act was amended in 1988 to conform more closely with the provisions of the Environment Protection Act, 1986. It sets up the Central Pollution Control Board (CPCB) which lays down standards for the prevention and control of water pollution. At the state level, the State Pollution Control Board (SPCB) performs the same function under the direction of the CPCB and the state government.21 extend the coverage, and fill in gaps that still exist, in light of present knowledge and accumulated experience. It did not displace, but rather built on the earlier policies; see http://www.moef.gov.in/sites/ default/files/introduction-nep2006e.pdf. 18 Ibid. at 10–14. 19 The Water (Prevention and Control of Pollution) Act, 1974, Act No. 6 of 1974 (23 March 1974); available at: http://lawmin.nic.in/ld/P-ACT/1974/The%20Water%20(Prevention%20and%20Control% 20of%20Pollution)%20Act,%201974.pdf. 20 For a comprehensive analysis and exposition on legal regulation of water pollution in India, see B. H. Desai, Water Pollution in India: Law & Enforcement (New Delhi: Lancers Books, 1990). 21 See the Water (Prevention and Control of Pollution) Act, 1974, ss. 16, 17, and 18.

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218 Bharat H. Desai and Balraj K. Sidhu

10.3.2.2 The Water (Prevention and Control of Pollution) Cess Act, 1977 This Act22 provides for a levy and collection of tax on water consumed by specified industries and local authorities.23 It aims at augmenting the resources of the central and state boards for prevention and control of water pollution.

10.3.2.3 The Air (Prevention and Control of Pollution) Act, 1981 This Act24 provides means for the control and abatement of air pollution. The Act seeks to combat air pollution by prohibiting the use of polluting fuels and substances, as well as by regulating appliances that give rise to air pollution. Under the Act, establishing or operating of any industrial plant in a pollution control area requires consent from the state boards.25 The boards are also expected to test the air in air pollution control areas, and inspect pollution control equipment and manufacturing processes.26 To empower the central and state pollution boards to meet grave emergencies, the Act was amended in 1987. The boards were authorized to take immediate measures to tackle such emergencies and recover the expenses incurred from the offenders. The power to cancel consent for non-fulfilment of the conditions prescribed has also been emphasized in the Air Act Amendment.

10.3.2.4 The Wildlife (Protection) Act, 1972 This Act27 provides for protection to listed species of flora and fauna and establishes a network of ecologically important protected areas. The Act empowers the central and state governments to declare any area a wildlife sanctuary, national park, or closed area.28 There is a blanket ban on carrying out any industrial activity inside these protected areas. It provides for authorities to administer and implement the Act; regulate the hunting of wild animals; protect specified plants, sanctuaries, national parks, and closed areas; restrict trade or commerce in wild animals or animal articles; and miscellaneous matters. The Act has been amended three times in 1993, 2002, and 2006 respectively. Amendments had been separately proposed for incorporation of provisions of the Convention on International Trade in

22 See the Water (Prevention and Control of Pollution) Cess Act, 1977, Act No. 36 of 1977, Ministry of Law, Justice and Company Affairs, The Gazette of India, Extraordinary, Part II, Section 1, 07 December 1977. This Act was amended in 1992 and 2003; available at: http://www.moef.nic.in/sites/default/files/ Doc3.pdf. 23 See the Water (Prevention and Control of Pollution) Cess Act, 1977, s. 3. 24 The Air (Prevention and Control of Pollution) Act, 1981 Act No. 14 of 1981 (29 March 1981); available at: http://www.moef.nic.in/sites/default/files/No%2014%20%201981.pdf. The Act contains fifty-four sections and has been amended once in 1987. 25 Ibid., s. 21. 26 The Central Pollution Control Board and State Pollution Control Boards constituted under the Water (Prevention and Control of Pollution) Act, 1974 will also exercise power and perform function under the Air (Prevention and Control of Pollution) Act, 1981. 27 The Wildlife (Protection) Act 1972 (No. 53 of 1972) came into force on 9 September 1972; available at: http://www.moef.nic.in/sites/default/files/wildlife1l.pdf. 28 Ibid., and see Chapter IV of the Wildlife (Protection) Act, 1972.

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india 219 Endangered Species of wild fauna and flora (CITES), enhanced penalties for offences, and other minor amendments.29

10.3.2.5 The Forest (Conservation) Act, 1980 This Act was enacted in 1980 to check indiscriminate diversion of forest land for non-forestry purposes.30 By an amendment in 1988, the state governments were prohibited from assigning, by way of lease or otherwise, any forest land or any portion thereof to any private person or authority (that was not owned, managed, or controlled by government) without prior sanction of the central government. The primary focus of this legislation is conservation.31

10.3.2.6 The Environment (Protection) Act, 1986 The Environment Protection Act (EPA)32 is the umbrella legislation for the protection of the environment in India. The EPA articulates a policy for environmental protection covering air, water, and land, as well as providing a framework for central government coordination of central and state authorities established under older laws, including the Water Act and the Air Act. Under this umbrella law, the central government sets national ambient and emissions standards, establishes procedures for managing hazardous substances, regulates industrial siting, investigates and researches pollution issues, and establishes laboratories to collect and disseminate information.33 It thus lays down an overarching framework for environmental protection providing inbuilt law-making powers to the central government to make rules34 as well as issue notifications under it.35 A lackadaisical approach taken by the administrative branch of government36 to 29 The Wild Life (Protection) Amendment Bill, 2013 was introduced in the Rajya Sabha on 5 August 2013. This Act provides for the protection and conservation of wild animals, birds, and plants. It also covers the management of their habitats and regulation and control of trade or commerce linked to wild life; available at: http://www.moef.nic.in/sites/default/files/WildlifeProtectionAmendmentBill2013.pdf. 30 The Forest Conservation Act came into effect on 25 October 1980. It was enacted with a special focus to regulate restrictions on the dereservation of forests or use of forest land for non-forest purposes; available at: http://envfor.nic.in/legis/forest/forest2.html. 31 See Desai and Sidhu, ‘Mapping Forest Governance, at 38. 32 The Environment (Protection) Act 1986 (No. 29 of 1986) came into effect on 23 May 1986. It ushered environmental regulatory process into a new era by providing a comprehensive framework to regulate all aspects of environment pollution, prescribing machinery as well as heavy penalties (of both imprisonment and fines) for violations of the EPA provisions. It also contains comprehensive rule-making powers; available at: http://www.moef.nic.in/sites/default/files/eprotect_act_1986.pdf. 33 Environment (Protection) Act 1986 (No. 29 of 1986), s. 3; available at ibid. 34 Environment (Protection) Act 1986 (No. 29 of 1986), ss. 6 and 25; available at ibid. 35 See further http://envfor.nic.in/division/environment-protection. 36 As per one report, the current NDA-led central government in the eleven months to April 2015, the Union Ministry of Environment and Forests and Climate Change (MoEF&CC), has given environmental clearances (EC), including new and expansion projects, to 187 development projects in major sector mining, thermal power, hydropower, iron and steel, cement, infrastructure, and industrial estates; see Environmental Clearances, Down to Earth (22 May 2015); available at: http://www.downtoearth.org.in/ news/environmental-clearances-49888. For a detailed discussion on this issue, see B. K. Sidhu ‘The Niyamgiri Hills Bauxite Project: Balancing Resource Extraction and Environment Protection’ (2011) 41(3) Environmental Policy & Law 166–71.

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220 Bharat H. Desai and Balraj K. Sidhu these standards has however attracted the ire of the higher judiciary. It has chastized the Ministry for giving environmental clearance without inspection37 and made a strong case for the overhaul of existing governance arrangements under the EPA. A report by the High-Level Committee reviewing various Acts administered by the Ministry of Environment, Forest, and Climate Change (November 2014) strongly recommended that a new Environment Laws (Management) Act, streamlining the cumbersome procedure for environmental clearance, be introduced. It further recommended the creation of a new National Environment Management Authority and State Environment Management Authorities.38

10.3.2.7 The Public Liability Insurance Act, 1991 This Act39 makes it obligatory for the user industries handling 179 types of chemicals and compounds and other classes of flammable substances to take out a special insurance policy to cover the liabilities likely to arise on account of any chemical (industrial) disaster/accident and payable to those affected people who are not employed in those industries on a ‘no fault basis’/‘absolute liability’. The Act establishes an Environment Relief Fund (ERF), which is subscribed to by all such user industries in an amount equal to the annual premium of such insurance policies. Recently, directions have been issued by central government to the Central Pollution Control Board, who in turn pass to the State Pollution Control Boards, to ensure that Consent to Establish (CTE) or The Consent to Operate (CTO) is not granted or renewed to any such industry which does not comply with the obligations under this Act.40

10.4 Implementation Framework 10.4.1 The Ministry of Environment, Forests, and Climate Change The Ministry of Environment, Forests and Climate Change (MoEF&CC) was established in 1985 (words climate change were added in 2016). It is the central governmental agency responsible for planning, promotion, and coordination of all environmental activities, including the formulation of national policies, standards, and regulations. Its major objectives are: conservation and survey of flora, fauna, forests, and wildlife; prevention and control of pollution; afforestation and regeneration of degraded areas; protection of the environment; and the welfare of animals. 37 Some high profile cases include Vedanta (Orissa Mining Corpn. Ltd v Ministry of Environment & Forests (2013) 6 SCC 476 and Lafarge Umiam Mining Pvt. Ltd v Union of India (UOI) and Ors. (decided on 6.07.2011) MANU/SC/0735/2011). 38 High Level Committee to review various Acts administered by Ministry of Environment, Forest & Climate Change headed by TSR Subramanian submitted report in November 2014; available at: http:// envfor.nic.in/sites/default/files/press-releases/Final_Report_of_HLC.pdf. 39 The Public Liability Insurance Act 1991 No. 6 of 1991 (22 January 1991). It was amended in 1992; see http://www.moef.nic.in/sites/default/files/6.pdf. 40 See ‘Environment Ministry Directs CPCB to Ensure Better Implementation of Public Liability Insurance Act, 1991’, Press Information Bureau, Government of India, Ministry of Environment and Forests (7 September 2015); available at: http://pib.nic.in/newsite/PrintRelease.aspx?relid=126680.

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india 221 The Ministry is headed by a cabinet minister appointed by central government and is staffed by bureaucrats and scientists. For organizational efficiency it is divided into two divisions: environment as well as forestry and wildlife.41 It has regional offices,42 subordinate offices,43and autonomous organizations.44 Other bodies under the MoEF&CC include Authorities,45 Boards,46 and Public Sector Undertakings.47 It also hosts a variety of centres of excellence. These centres form the backbone of the development of MoEF&CC policy.

10.4.2 Central Pollution Control Board The Central Pollution Control Board (CPCB) is the national board with oversight powers over the state boards. The CPCB has a central office as well as a network of zonal offices. Established in 1977 under the Water Act, the CPCB has wide ranging powers and responsibilities to: advise the central government on any matter related to prevention and control of water and air pollution and improvement of air quality; plan nationwide programmes for the prevention, control, and abatement of water and air pollution; coordinate the activities of SPCBs and resolve disputes among them; provide technical assistance and guidance to the State Boards; carry out and sponsor investigations and research relating to problems of water and air pollution and for their prevention, control, and abatement; prosecute polluting industries pursuant to the Water Act; collect, compile, and publish technical data on air and water pollution and measures recommended for their prevention, control, and abatement; organize training of staff engaged in environmental programmes; prepare manuals, codes, and guidelines relating to industrial emissions and effluents; organize mass media awareness programmes on environmental protection; disseminate information on water and air pollution and their prevention and control; and perform such other functions as prescribed by the central government. The CPCB has been instrumental in carrying out most of the scientific studies for prevention and control of pollution. Notwithstanding apparent statutory autonomy, however, the efficacy of the CPCB has been undermined by structural problems and over-dependence 41 For the organizational structure, see http://envfor.nic.in/about-ministry/chart1-environmentwing; http://envfor.nic.in/about-ministry/chart2-forests-and-wildlife-wing. 42 It comprises Southern Zone (Bangalore), Western Zone (Bhopal), Eastern Zone (Bhubaneshwar), South-Eastern Zone (Chennai), North Zone (Chandigarh), North-Central Zone (Dehradun) Central Zone (Lucknow), West-Central Zone (Nagpur), Eastern-Central Zone (Ranchi), and North-Eastern Zone (Meghalaya). 43 It includes Forest Survey of India, Botanical Survey of India, Zoological Survey of India, Indira Gandhi National Forest Academy, Directorate of Forest Education, National Institute of Animal Welfare, National Zoological Park, and National Museum of Natural History. 44 The list includes Govind Ballabh Pant Institute of Himalayan Environment & Development (Almora), Indian Council of Forestry Research and Education (Dehradun), Indian Institute of Forest Management (Bhopal), Indian Plywood Industries Research and Training Institute (Bangalore), and Wildlife Institute of India (Dehradun). 45 Central Zoo Authority, National Biodiversity Authority, National Ganga River Basin Authority, and National Tiger Conservation Authority. 46 Animal Welfare Board, Central Pollution Control Board, National Afforestation and Ecodevelopment Board and Wildlife Crime Control Bureau. 47 Andaman Nicobar Islands Forest & Plantation Development Corporation Ltd (Port Blair).

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222 Bharat H. Desai and Balraj K. Sidhu on MoEF&CC. On many occasions, the Supreme Court of India has chosen, for example, to rely on the Nagpur-based National Environmental Engineering Research Institute (NEERI) rather than the CPCB.

10.4.3 State Pollution Control Boards (SPCBs) The SPCBs were established following the state legislature’s adoption of the Water and Air Acts. At the state level, the SPCBs are attached either to the Environment Department, or to the Forest and Wildlife Department. In general, SPCBs perform the following functions: advise the state governments on pollution-related issues; plan a comprehensive state-level pollution control/prevention/abatement programme; implement and enforce national standards, making them more stringent if warranted by local conditions; grant consents to establish and to operate under the Air and Water Acts and authorize hazardous waste disposal per rules under the EPA; and collect water levies for the use of water. Though established almost in every state, SPCBs have not been able to play an effective regulatory role. As such it is no wonder that pollution has grown by leaps and bounds in almost every urban cluster and quality of water in most of rivers and lakes has suffered very badly. As such many of the SPCBs came under judicial scrutiny. In some of the judgments of the apex court (and even some High Courts), there is a clear sense of exasperation.

10.4.4 Key Challenges Most of the compliance monitoring and enforcement is done by the pollution control boards. Enforcement powers include emergency measures of disconnecting water or power supply and facility closure, which are widely used in some states. However, the pollution control boards may only impose penalties (which may include fines and/or imprisonment) by filing cases under the Water and the Air Acts as well as the EPA. Pursuing cases through trial and appellate courts, however, has proven to be an i neffective enforcement response. Ironically, the courts are overburdened, procedures are cumbersome, and the resources of the state boards are overstretched. In addition, criminal cases brought by the SPCBs are difficult to prosecute and have a low conviction rate. Many cases are dismissed on the grounds that the samples were not properly collected in strict accordance with mandatory provisions in the Act. Furthermore, monetary fines, even if ordered by the court, are too low to create an effective deterrence. As a result, the PCBs resort to courts less and less and prefer to use emergency administrative orders. The lack of civil administrative authority (particularly, to impose administrative fines) limits the effectiveness of the PCBs enforcement efforts leads to over-reliance on the judiciary for enforcement. There is also insufficient coordination between the CPCB and the SPCBs due to the double subordination of the SPCBs (and the administrative influence of the state governments) as well as to the lack of comprehensive standard compliance and enforcement policies and procedures. To overcome institutional coordination challenges and enable a more effective compliance and enforcement programme, the CPCB needs to set out, in collaboration with the SPCBs, comprehensive national policies, procedures, and guidelines for compliance and enforcement. Such national guidance, disseminated in a timely manner, would allow the SPCBs

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india 223 to increase consistency, transparency, effectiveness, and cost efficiency of their activities. Filing criminal cases against violators in trial courts or reacting to public interest litigation (PIL) is a time-consuming, unpredictable, and costly enforcement mechanism.

10.4.5 Role of the Judiciary Given these issues, the development of environmental jurisprudence in India has been largely due to efforts of the higher judiciary through citizen-led public interest litigation (PIL).48 This initiation of PIL, the timely demise of strict standing rules, and the expansive interpretation of Article 2149 of the Constitution all paved the way for the judicial development of a body of environmental law, giving a broad meaning to the term ‘environment’, taking within its fold quality of life50 as distinguished from a mere animal existence.51 Thus, in Subash Kumar v State of Bihar,52 it was held that: [the r]ight to live is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution-free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has the right to have recourse to Article 32 of the Constitution . . .

In Church of God (Full Gospel) in India v KKR Majestic Colony Welfare Association,53 the Supreme Court observed that noise pollution amounted to violation of Article 21 and in L. K. Koolwal v State of Rajasthan,54 the Rajasthan High Court observed that a citizen’s duty to protect to protect the environment under Article 51-A(g) of the Constitution gives citizens the right to a clean environment, even allowing the Court to demand the establishment of national and state regulatory boards and environmental courts. These judicial developments have also given rise to specific principles which now shape the Indian environmental law.

10.4.5.1 Doctrine of Absolute Liability The M. C. Mehta55 case has assumed tremendous significance. This judgment, popularly known as the Shriram Foods and Fertilizer (also called Oleum Gas Leakage) case, lays down clearly the position on the tortious liability of manufacturers of hazardous substances. Prior to this case, all actions for environmental torts against companies and industries were governed by the principle of strict liability. However, on this occasion, the Indian Supreme Court sought 48 For a detailed exposition on PIL in India, see B. H. Desai, ‘Enforcement of the Right to Environment Protection through Public Interest Litigation in India’ (1993) 33 Indian Journal of International Law 27–40. 49 Article 21 runs as follows: ‘Protection of life and personal liberty—No person shall be deprived of his life or personal liberty except according to procedure established by law.’ 50 Chhetriya Pardushan Mukti Sangarsh Samiti v State of U.P. (1990) 4 SCC 449. 51 Board of Trustees of the Port of Bombay v Dilipkumar Raghavendranath Nadkarni (1983) 1 SCC 124. 53 52 AIR 1991 SC 420. AIR 2000 SC 2773. 55 54 AIR 1988 Rajasthan 2. AIR 1987 SC 1086.

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224 Bharat H. Desai and Balraj K. Sidhu to deviate from this principle of common law. Instead, Bhagwati J. went so far as to enunciate a new principle of absolute liability. The Court stated that ‘an enterprise which is engaged in a hazardous or inherently dangerous activity that poses a potential threat to the health and safety of persons owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone’.56 The principle of absolute liability is operative without any exceptions. It does not admit of the defences of reasonable and due care or strict liability. In the Bhopal Gas case (Union Carbide Corporation v Union of India),57 the Supreme Court once again formulated the doctrine of absolute liability for harm caused by hazardous and inherently dangerous industries by interpreting the scope of the power under Article 32 to issue directions or orders whichever may be appropriate in particular proceedings. According to the Court, this power could be used to come up with new remedies and strategies.

10.4.5.2 Polluter-Pays Principle In Indian Council for Enviro-Legal Action58 the Supreme Court accepted the polluter-pays principle.59 The polluter-pays principle was applied in the Taj Trapezium case60 in which it was noted that there were as many as 510 industries responsible for air pollution in and near the Taj Mahal. To protect the Taj from being damaged, one aspect of the polluter-pays principle was applied, namely, the industries were asked to relocate.

10.4.5.3 Precautionary Approach The Supreme Court also recognized the precautionary approach61 in the Vellore Citizens Welfare Forum case. The introduction of the ‘onus of proof ’ as a factor relevant for environmental protection was developed for the first time in this case. The Supreme Court also endorsed the polluter-pays principle, which was earlier recognized in Indian Council for Enviro-Legal Action. As a result, the Supreme Court recognized the sustainable development, the precautionary principle, and the polluter-pays principle as a part of India’s e nvironmental 57 56 Ibid., at 1106. AIR 1990 SC 273. 58 Indian Council for Enviro-legal Action & Ors v Union of India, (1996) 3 SCC 212. 59 Principle 16 of the Rio declaration states describes the polluter-pays principle as follows:

National authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment. 60 M.C. Mehta v Union of India & Ors (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. 61 This principle has widely been recognized as the most important principle of ‘Sustainable Development’. Principle 15 of the Rio declaration states that: ‘In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.’ In other words, it means: 1) Environmental measures by the state government and the local authority must anticipate, prevent, and attack the causes of environmental degradation. 2) Where there are threats of serious and irreversible damage, lack of scientific certainty should not used as a reason for postponing measures to prevent environmental degradation. 3) The ‘onus of proof ’ is on the actor or the developer to prove that his action is environmentally benign.

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india 225 jurisprudence. The Supreme Court held that ‘we have no hesitation in holding that the precautionary principle and polluter pays principle are part of the e nvironmental law of India’. The Court also held that: ‘[r]emediation of the damaged environment is part of the process of “Sustainable Development” and as such polluter is liable to pay the cost to the individual sufferers as well as the cost of reversing the damaged ecology’. In the recent Narmada case,62 the Court once again explained this approach in the following terms: When there is a state of uncertainty due to lack of data or material about the extent of damage or pollution likely to be caused then, in order to maintain the ecology balance, the burden of proof that the said balance will be maintained must necessarily be on the industry or the unit which is likely to cause pollution.

10.4.5.4 Doctrine of Public Trust Another major principle accepted by the Supreme Court is the public trust doctrine. Under this doctrine the public has a right to expect that certain lands and natural areas will retain their natural characteristics. This doctrine was considered in the Kamal Nath case,63 a case in which an attempt was made to divert the flow of a river in order to augment facilities at a motel. It was held that the state had a duty to protect and preserve natural resources.64

10.4.5.5 Sustainable Development Rural Litigation and Entitlement Kendra v Dehradun v State of UP65 was one of the first cases in which Supreme Court dealt with the question of the tension between the environment and development. In this case the matter related to illegal and unauthorized mining. The Court rightly pointed out that ‘it is always to be remembered that these are permanent assets and not to be exhausted in one generation’ and thus held that environmental protection and ecological balance are equally important as economic development. The Supreme Court after much investigation ordered the stopping of mining work and held that: This would undoubtedly cause hardship to them, but it is a price that has to be paid for protecting and safeguarding the right of the people to live in healthy environment with minimal disturbance of ecological balance and without avoidable hazard to them and to their cattle, homes and agricultural land and undue affection of air, water and environment.

The first case on which the apex court brought in the doctrine of ‘sustainable development’ was Vellore Citizen Welfare Forum vs. Union of India.66 A dispute arose over some tanneries in the state of Tamil Nadu. These tanneries were discharging effluents into the river Palar, which was the main source of drinking water in the state. In this case, considered to be the most important case the Indian Supreme Court has heard in relation to environmental law, the judgment given by Justice Kuldip Singh is of utmost importance. He observed that 62 Narmada BachaoAndolan v Union of India (2000) 10 SCC 664. 63 M.C. Mehta v Kamal Nath, (1997) 1 SCC 388, (1999) 1 SCC 702, (2000) 6 SCC 213, and (2002) 3 SCC 653. 64 See also MI Builders Pvt. Ltd v RadheyShyamSahu AIR 1996 SC 2468. 65 (1987) Supp SCC 487. 66 Vellore Citizens Welfare Forum v Union of India & Ors (1996) 5 SCC 647.

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226 Bharat H. Desai and Balraj K. Sidhu ‘the traditional concept that development and ecology are opposed to each other is no longer acceptable. “Sustainable Development” is the answer.’ He further observed that: ‘we have no hesitation in holding that “Sustainable Development” as a balancing concept between ecology and development has been accepted as a part of the Customary International Law . . . about the development of Sustainable development as well accepted principle [at] the international level’. The Supreme Court also applied the principle of sustainable development in M.C. Mehta v UOI (Taj Trapezium case).67 In State of Himachal Pradesh v Ganesh Wood Products,68 the Supreme Court prevented certain forest-based industry, recognizing the principle of intergenerational equity and sustainable development. In T.N Godavaraman Thimmalapad v Union of India,69 the Supreme Court reiterated what had been said in the Vellore case and declared that the precautionary approach and the sustainable development principles are two salutary principles that govern the law of the environment. In N.D Jayal v Union of India,70 the Supreme Court declared that ‘the adherence to sustainable development is a sine qua non for the maintenance of symbiotic balance between the right to development and development’.

10.4.5.6 The National Green Tribunal Act, 2010 The National Green Tribunal (NGT) came into being on 18 October 2010 under the National Green Tribunal Act, 2010.71 It provides a specialized forum for the settlement of many environmental disputes.72 The NGT was established to provide expeditious justice on matters related to environmental protection, conservation of forests, and other natural resources.73 It further laid down the enforcement of ‘legal rights relating to the environment’ including relief and compensation for damages to persons and property.74 The suggestion made by the Supreme Court in the five-judge Constitution Bench judgment in the Oleum Gas Leakage case that India should have specialized environmental courts is now more than 68 67 AIR 1997 SC 734. AIR 1996 SC 149. 70 69 (2002) 10 SCC 606. (2003) 6 SCC 572. 71 See the press release issued by the Ministry of Environment & Forests, Government of India on launch of the National Green Tribunal (19 October 2010); available at: http://moef.nic.in/downloads/ public-information/ngt-launch-press-note.pdf (stating that the National Green Tribunal marks the first time a tribunal exclusively dedicated to environmental issues has been set up. This Body, established by an Act of Parliament (being the National Green Tribunal Act of 2010) will have circuit benches across the country to try all matters related to and arising out of environmental issues. The Tribunal which shall also consist of members who are experts in the field of environmental and related sciences, has been empowered to issue directions for the compensation and restitution of damage caused from actions of environmental negligence. In doing so, this is the first body of its kind that is required by its parent statute; to apply the polluter pays principle and the principle of sustainable development); see the National Green Tribunal Act 2010 (Act No. 19 of 2010), effective on 2 June 2010; available at: http://www.moef.nic. in/downloads/public-information/NGT-fin.pdf. 72 The NGT Act lays down the ambit of its jurisdiction making it mandatory for the issue to fall within one of the seven pieces of legislation: the Water (Prevention and Control of Pollution) Act, 1971; the Water (Prevention and Control of Pollution) Cess Act, 1971; the Forest (Conservation) Act, 1980; the Air (Prevention and Control of Pollution) Act, 1981; the Environment (Protection) Act, 1986; the Public Liability Insurance Act, 1991 and the Biological Diversity Act, 2002 (as per Sch. I NGT Act). For detailed discussion on the NGT, see B. H. Desai and B. K. Sidhu, ‘On the Quest for Green Courts in India’ (2010) 3(1) Journal of Court Innovation 79–110; available at: https://www.nycourts.gov/court-innovation/ Winter-2010/jciDesai.pdf 74 73 See Preamble to the NGT Act 2010. Ibid.

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india 227 three decades old.75 Giving effect to it has been subject to various twists and turns, as well as half-hearted efforts such as the National Environment Tribunal Act (NETA) (1995)76 and the National Environmental Appellate Authority Act (NEAA) (1997).77 The NGT Act finally repealed both of these Acts. The advent of the NGT of India has provided a specialized forum and emphatic ‘greening’ of the judicial approach in addressing a range of environmental issues. Nevertheless, understanding the heavy responsibility on its shoulders as well as the opportunity to make a dent in mitigating environmental problems, the NGT has made waves in addressing some major environmental issues. 10.4.5.6.1 Sand Mining Unsustainable sand mining from riverbeds has huge social, environmental, and geomorphic impacts on rivers. The NGT has followed an earlier judgment78 of the Supreme Court and reiterated that ‘sand mining on both side of the rivers, upstream and in-stream, is one of the causes for environmental degradation and also a threat to the biodiversity’.79 Hence in the National Green Tribunal Bar Association v Ministry of Environment & Forests & Ors (2013), it issued a restraint order that made it mandatory to get environmental clearances from the Ministry of Environment & Forests/State Environment Impact Assessment Authority for persons carrying out such activity.80 Recently, in Gurpreet Singh Bagga v Ministry of Environment and Forests (2016), the Tribunal imposed a complete prohibition on the continuation of any mining of minor minerals in the flood plain of river Yamuna in the district Yamunanagar (Haryana) and Saharanpur (Uttar Pradesh) and all other villages situated on the bank of river Yamuna for a period of forty-five days from the passing of the judgment. In addition to that, it required payment of ‘environmental compensation’ of Indian Rs. 50 crores (500 million) from thirteen mining firms for carrying out excessive unauthorized mining resulting in damage and degradation of environment.81 75 The Supreme Court had been highlighting the need for specialized environmental courts. It observed that: ‘We would also suggest to the Government of India that since cases involving issues of environmental pollution, ecological destruction and conflicts over natural resources are increasingly coming up for adjudication and these cases involve assessment and evolution of scientific and technical data, it might be desirable to set up environment courts on the regional basis with one professional Judge and two experts drawn from the Ecological Sciences Research Group keeping in view the nature of the case and the expertise required for its adjudication. There would of course be a right to appeal to this Court from the decision of the environment court (emphasis added)’; see the three main orders in this case: M.C. Mehta v Union of India, AIR 1987 SC 965, AIR 1987 SC 982, AIR 1987 SC 1086. 76 See Preamble to the National Environment Tribunal Act; No. 27 of 1995; available at: http://www. envfor.nic.in/legis/others/tribunal.html. 77 The National Environment Appellate Authority Act (No.22 of 1997) (Preamble); available at: http:// www.envfor.nic.in/legis/others/envapp97.html; see the Green Tribunal Act (repealing the National Environment Appellate Authority Act). 78 See Deepak Kumar v State of Haryana (2012) 4 SCC 629. A summary of the judgment is available at: http://www.supremecourtcases.com/index2.php?option=com_content&itemid=99999999&do_ pdf=1&id=24162. 79 Ibid. 80 Original Application No. 171 of 2013, before the NGT Principal Bench, New Delhi; available at: http://cdn.downtoearth.org.in/dte/userfiles/images/02-NGT_judgement.pdf. 81 2016 SCC Online NGT 92.

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228 Bharat H. Desai and Balraj K. Sidhu 10.4.5.6.2 Marine Oil-spill Pollution The NGT has dealt with issues such as release of crude oil from tankers, offshore platforms, drilling rigs and wells, as well as spills of refined petroleum products at sea. In Samir Mehta v Union of India (2016)82 three companies, Republic of Panama’s Delta Shipping Marine Services SA, Qatar-based Delta Navigation WLL, and Delta Group International, were fined Rs. 100 crores for pollution caused to the marine environment due to oil spills. Gujarat-based Adani Enterprises Ltd. was also asked to pay Rs. 5 crores as environmental compensation for dumping 60054 MT Coal in the seabed and causing pollution of the marine environment. The brief facts of the case are that a vessel sent by the Delta Group carrying non-coking coal which was imported by the Adani Group sank in the Arabian Sea due to water ingression in ballast tanks due to technical faults. This caused an oil spill which spread over to the coastal shore of Mumbai at Juhu Beach, Raigad District, Dadar and Alibaug, Uttan in Bhayandar and Gorai beach causing severe damage to mangroves and the marine ecology of the Bombay coast. The NGT considered three important aspects: first, whether its jurisdiction extended beyond the territorial waters of India as the incident had occurred beyond 12 nautical miles but within the limit of 200 nautical miles for the purposes of exclusive economic zone. Second, whether it had the power to order compensation in lieu of any lawful exercise undertaken by the government of India (specifically, the Indian Coast Guard). Finally, it tried to fix and calculate the liability for the damage caused. In order to fix liability, the NGT referred to the Convention on Civil Liability for Bunker Oil Pollution to which India became signatory on 10 June 2015. During the case, the Treaty had not yet been ratified. Nevertheless, the NGT invoked Article 18 of the Vienna Convention on the Law of Treaties (1969) as well as the non-obstante clause under Article 253 of India’s Constitution which calls upon the state to refrain from acts that would defeat the object and purpose of a treaty it has signed but not ratified. Furthermore, it also relied on the Convention on Civil Liability for Oil Pollution Damage (1969), the 1973 Convention for the Prevention of Pollution from Ships (MARPOL), including its subsequent 1978 Protocol, and the UN Convention on the Law of Sea (1982). This gives some indication of the NGT’s willingness to give effect to multilateral environmental agreements (MEAs)83 in understanding and settling domestic environmental disputes. 10.4.5.6.3 Air Pollution in the National Capital Territory The Principal Bench of the NGT being located in Delhi could not turn a blind eye to the city turning into ‘gas chamber’. Hence in a series of orders, it came down heavily to address three prime sources of air pollution in the National Capital Territory of Delhi, namely: (i) the burning of municipal solid waste; (ii) dust generated by construction and allied activities including sweeping of roads; and (iii) vehicular pollution due to unregulated registration of new vehicles and lack of phase-out of old polluting vehicles in the capital.84 The Tribunal 83 82 2016 SCC Online NGT 927. See n. 1. 84 In Vardhaman Kaushik v Union of India & Ors (Principal Bench, Original Application No. 21/2014) the Tribunal categorically held that ‘all vehicles, diesel or petrol, which are more than 15 years old shall not be permitted to ply on the roads’; Sanjay Kulshrestha v Union of India & Ors (Principal Bench, Original Application No. 95/2014) dealt with the builders of huge construction works which emanate lots of dust and other matter into the air as a result of not taking appropriate environmental measures; see

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india 229 sought to prohibit vehicles that were more than fifteen years old. It ruled that such vehicles would be deregistered immediately. Other vehicles in the ten to fifteen years category would also be gradually deregistered. 10.4.5.6.4 Illegal Slaughter Houses With growing annual per capita meat consumption, and high meat export potential, there has been large-scale growth of this trade. Most of the slaughter houses are without adequate basic amenities, that is, proper flooring, ventilation, water supply, etc. In addition to these deficiencies, slaughter houses tend to suffer from very low hygiene standards and pose a major public health and environmental hazard. In a series of orders, the NGT has held that the places where illegal slaughtering is taking place need to be carefully identified and illegal activities curbed by the local authority to ensure that slaughtering only takes place at slaughter houses operating under hygienic conditions. This should ensure that the meat-eating population gets fresh and disease-free meat as well as preventing drains from becoming clogged due to the illegal dumping of animal waste into the drains.85 10.4.5.6.5 Ganga Pollution Cases The Supreme Court of India has transferred the issue of discharge of domestic sewage and other sources of pollution in the river Ganga to the NGT. The tribunal has taken a serious view of this, observing that ‘not a single drop of river Ganga has been cleaned so far’ and reasoning that government agencies are ‘wasting public money’.86 It reprimanded the Uttar Pradesh Jal Nigam (UPJN) officials for pursuing ‘incorrect methods’ in designing and constructing Sewage Treatment Plants (STPs) and doing no fieldwork. The tribunal ordered a CBI inquiry into the alleged irregularities in cleaning up the river Ganga.87 In sum, NGT’s handling of a series of such sensitive cases underscores judicial concern on a range of environmental issues that comes within its jurisdictional mandate. It also illustrates the complexity in the oversight of these regulatory processes. The sheer diversity of the issues, the concern for national interests, uncertainties of science, predatory exploitation of natural resources, environment-development interface, and growing treaty obligations under various MEAs, has set the stage for a flurry of environmental disputes. Notwithstanding the limited resources in terms of manpower and infrastructure facilities, the NGT has readied itself to play a significant a role alongside the Supreme Court in addressing the environmental issues. On the other hand, concerns have been raised as regards enforcement of its orders. It does depend upon the political will of the central/state governments. The recent transfer of Ganga also Supreme Court Women Lawyers Association v Union of India & Ors (Principal Bench, Original Application No. 303/2015). 85 Nutfar Sardar & Ors v Government of West Bengal & Ors (NGT Eastern Bench, Kolkata; Original Application No. 43/2015/EZ); Animal Rescue Squad & Ors v Goa Pollution Control Board (NGT Western Bench, Pune; Original Application No. 30/2015/WZ). 86 ‘Public money wasted, not a drop of Ganga cleaned: NGT’ Hindustan Times (6 February 2017); available at: http://www.hindustantimes.com/india-news/public-money-wasted-not-a-drop-of-gangacleaned-ngt/story-W0sHleMHqdLuNmYXdxnsZI.html. 87 ‘NGT Orders CBI Probe Into UP Jal Nigam Over Ganga Pollution’ The Quint (15 February 2017); available at: https://www.thequint.com/environment/2017/02/14/ngt-orders-cbi-probe-into-up-jal-nigamover-ganga-pollution-sewage-treatment.

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230 Bharat H. Desai and Balraj K. Sidhu pollution case by the Supreme Court after thirty-two years, during which the apex court could not ensure enforcement, speaks volumes about the deeper malaise that has set in. However, in turn, it has strengthened the status and visibility of the NGT as the leading light of ‘green justice’ in India. There are also some procedural problems that affect the efficacy of the NGT. There is a lack of suo motto powers to trigger action on environmental issues, and lack of a power to ensure compliance with its orders. In general, there is a right of appeal from the NGT to the Supreme Court. However, in some of the cases, an appeal has been filed in the High Courts. That creates the problem of parallel jurisdiction undermining authority of the NGT. Meanwhile, lack of parity between the judicial and expert members of the NGT has, on several occasions, marred the credibility, efficacy, and stature of the NGT as a forum for ‘green justice’.

10.5 Conclusion The evolution of the legal framework for environmental protection in India has witnessed many twists and turns, especially over the last forty-five years or so. The policy and legislative growth have come slowly, as has been the case with the gradual evolution of the institutional set-up. The process has largely been influenced by developmental considerations. Notwithstanding this, the higher judiciary has, to some extent, played a crucial role in giving direction, not only in remediating some of the environmental damage but also in buttressing legislative and institutional roles. Though regarded by the outside world as ‘activist’, the higher judiciary (especially the Supreme Court), has consistently sought to underscore that it is working within the four corners of the Constitution of India. The fact remains that the higher judiciary has done its best to employ different tools and techniques to give effect to the legislative provisions, and taken the enforcement machinery to task for not taking environmental harm seriously. The overarching framework for reform has been reading the right to a clean and hygienic environment into the ambit of Article 21 of the Constitution. However, the courts have repeatedly emphasized that PIL is not a panacea. It is a last ditch remedy that was conceded by the higher judiciary for the larger objective of protecting the life of citizens while pursuing the developmental model adopted by successive governments in the post-independence period. In a parliamentary democracy, it is the legislature that needs to remain on guard and take all necessary measures to protect and improve the e nvironment.

10.6 Selected Bibliography Upendra Baxi, ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India’ (1985) 4(6) Third World Legal Studies 107–32; available at: http://scholar.valpo.edu/twls/vol4/iss1. B. H. Desai, Water Pollution in India: Law and Enforcement (New Delhi: Lancers Books, 1990). B. H. Desai, ‘The Bhopal Gas Leakage Litigation: An Overview’ in Asian Yearbook of International Law (The Hague: Kluwer Law, 1994), vol. 3, 163–79. B. H. Desai, ‘Environmental Law: Some Reflections’ (1996) 23(3–4) Indian Bar Review 189–96.

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india 231 B. H. Desai, ‘A Fresh Look at Water Pollution Control Strategy in India’ (1996) 12(1) Energy Environment Monitor 1–14. B. H. Desai, ‘Effectuation of International Environmental Law at the National Level: Some Comparative Trends in South Asia’ (March 2007) 5 Banyan, Special Issue on The Environment: Policy & Practice 55–64. B. H. Desai, ‘India’s National Green Tribunal’ (Winter 2010) 3(1) Journal of Court Innovation 361–74. B. H. Desai and B. K. Sidhu, ‘On the Quest for Green Courts in India’ (Winter 2010) 3(1) Journal of Court Innovation 79–110; available at: https://www.nycourts.gov/court-innovation/Winter-2010/ jciDesai.pdf B. H. Desai and B. K. Sidhu, ‘Mapping Forest Governance in India: Reflections on Policy, Law and Institutional Framework’ (2017) 47(1) Environmental Policy & Law 34–43. P. Leelakrishnan, Environmental Law in India (New Delhi: Butterworths, 1999).

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chapter 11

I n don esi a Simon Butt and Prayekti Murharjanti

11.1 Overview

232

11.2 Allocation of Powers

234

11.3 The Structure and Substance of Environmental Law

236

11.4 Implementation Framework

244

11.5 Conclusion

251

11.6 Selected Bibliography

252

11.2.1 The Constitution 11.2.2 Devolution of Powers 1 1.3.1 Pollution Control and Hazardous Waste 11.3.2 Air Pollution and Climate Change 11.3.3 Marine and Fisheries

234 235

237 240 243

1 1.4.1 The Merger of the Environment and Forestry Ministries 244 11.4.2 Judicial Enforcement 245 11.4.2.1 Certified Judges for the General and Administrative Courts246 11.4.2.2 Judicial Decisions and Enforcement 248 11.4.2.3 Judicial Review in the Constitutional Court 249 11.4.2.4 Judicial Reasoning 250 11.4.2.5 Enforcement of Constitutional Court Decisions 250

11.1 Overview Indonesia is a sprawling archipelago, with more than 17,500 islands spread across more than 5,000 kilometres from East to West. It has a wealth of natural resources which have

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indonesia 233 drawn the attention of foreign colonialists and investors for hundreds of years, and domestic industry in more recent decades. Achieving sustainable use of these resources has been difficult. During Soeharto’s New Order (1965–98), the imperative of economic development (pembangunan), initially fuelled by an oil boom, trumped environmental concerns. Political elites have been involved in excessive, often illegal, exploitation for personal private gain. While this type of misuse of authority has long been prevalent at the national level, decentralization reforms introduced from 1999 have dramatically increased the number of government officials with legal authority over natural resources. Many have used this power to issue licences to raise revenue, both public and private, including to fund elections campaigns, without much regard for environmental protection.1 Indonesia’s environmental problems are both varied and numerous. Its forestry sector perhaps draws the most concern. Estimates vary, but some claim that Indonesia has lost about half of its 170 million hectares of primary forest within the past century. In more recent years, deforestation appears to have been largely the result of clearing for plantations, particularly palm oil. This deforestation has caused significant greenhouse gas (GHG) emissions, and the preferred method of clearing—burning—has resulting in thick smog causing or aggravating respiratory illnesses in Indonesia and its nearby neighbours, including Singapore and Malaysia.2 Unfortunately, Indonesia’s environmental problems do not begin and end with deforestation. Air and water pollution, waste management and overexploitation remain significant problems. However, Indonesia’s substantive environmental law ‘on paper’ is not inherently defective. Constitutional recognition of environmental rights is solid, and incremental statutory reforms have strengthened the legal framework for environmental protection and management. Significant legal and institutional impediments have long prevented, and continue to prevent, effective environmental management and protection. These include the interpretation, application, and enforcement of environment-related laws, the ‘sectoral’ approach to envir onmental administration, and the greed of government officials. One important problem has been broad and generally formulated statutory provisions requiring further regulations for full implementation. In practice, until these regulations are issued the statutory provisions will usually remain dormant. However, more recent problems have emerged out of other structural changes to the Indonesian legal system made in the post-Soeharto era. These include jurisdictional overlaps and genuine uncertainty about the division of power between national and subnational governments. Many of these problems could feasibly be ‘fixed’ by an active judiciary that is prepared to hold the government and businesses to account for their role in environmental damage. However, as we shall see, judicial enforcement of environmental law has, overall, been largely ineffective, despite significant attempts at judicial reform.

1 Wandojo Siswanto and others, ‘Desentralisasi Sektor Kehutanan: Pengalaman Indonesia’ in C. J. P. Colfer and D. Capistrano (eds.), Politik Desentralisasi Hutan, Kekuasaan dan Rakyat: Pengalaman di Berbagai Negara (Bogor: CIFOR 2006). 2 P. J. Burke and B. P. Resosudarmo, ‘Survey of Recent Developments’ (2012) 48 Bulletin of Indonesian Economic Studies 299, at 311.

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234 simon butt and prayekti murharjanti

11.2 Allocation of Powers 11.2.1 The Constitution After the fall of President Soeharto in 1998, Indonesia entered its so-called ‘reformasi’ period, during which significant changes were made to its political and legal systems. One important reform was the amendment of the Constitution, the Undang-undang Dasar 1945. The original Indonesian Constitution contained no mention of environmental protection. There was, however, a provision that required that the state control land, water, and natural resources to be used in the public interest.3 This provision, which resembles the public trust doctrine in common law systems,4 is referred to in all statutes pertaining to environment and natural resource management. The second amendment round in August 2000 included explicit constitutional recognition for environmental protection. This protection can be found in the form of substantive and procedural constitutional rights, as well as in general policy statements. Of most importance is the substantive environmental right, contained in Article 28H(1), which stipulates that: ‘[e]very person shall have the right to live a physically and mentally prosperous life, to have residence, to obtain a good and healthy environment as well as to obtain health services’. The procedural rights, which include the right to access information5 and access to justice (just and equal treatment before the law),6 do not mention environmental protection but appear to be clear prerequisites to the exercise of the substantive right. Finally, Article 33, entitled ‘National Economic and Social Welfare’, formulates a more general policy statement requiring balance between development and environmental protection. Article 33(4) states: ‘[t]he national economy is to be based on economic democracy, with the principle of . . . sustainability, an environmental perspective . . . and by ensuring balance between advancement and national economic unity’. This constitutional recognition is both necessary and beneficial for environmental protection in Indonesia. It provides the means for citizens to challenge the government when it fails to meet its obligation to provide a good and healthy environment, and requires the government to treat the environment and natural resources as public goods.7 And, because the Constitution is the highest legal norm with which all legislation and regulations must be consistent, constitutionalizing environmental protection can, at least in theory, provide a foundation for the subsequent harmonization of Indonesia’s environmental laws, which, as explained below, are disparate in their sources.8

3 Article 33(3) Indonesian Constitution. 4 Joseph L. Sax, ‘The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention’ (1970) 68(3) Michigan Law Review 471. 5 Article 28F Indonesian Constitution. 6 Article 28D(1) Indonesian Constitution. 7 T. Hayward, Constitutional Environmental Rights (Oxford, New York: Oxford University Press, 2005), 5. 8 Ibid., at 74.

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indonesia 235

11.2.2 Devolution of Powers The Environmental Protection and Management Act (EPMA), Indonesia’s ‘framework’ environmental legislation, gives the central Ministry of Environment strong and broad powers to manage the environment. These include power to: 1. establish national policies, norms, standards, procedures, and criteria; 2. develop and implement the National Environmental Protection and Management Plan; strategic environmental assessments (SEA); environmental impact assessments (EIAs); environmental instruments; and policies on public complaint management; 3. develop a national inventory on natural resources and greenhouse gases; 4. develop cooperation and minimum service standards; 5. coordinate and control environmental impact; 6. establish and implement policies on natural resources, biodiversity, and genetic resources; 7. establish and implement policies on controlling the impact of climate change on the ozone layer; hazardous materials and waste; marine conservation and trans-national pollution and environmental destruction; 8. facilitate and supervise implementation of national policies and local regulations; and industrial compliance with environmental licences, laws and regulations; 9. coordinate and facilitate cooperation and dispute settlement between regions; 10. establish policies on the recognition and rights of customary communities, and local wisdom, which are relevant to environmental protection and management; 11. manage environmental information; 12. coordinate, develop, and ‘socialize’ the utilization of environmentally friendly technology; 13. provide education, training, and awards; 14. develop environmental laboratories, infrastructure, and standards; 15. issue environmental licences; 16. determine ecoregions; and 17. engage in environmental law enforcement. The Ministry of Environment has some subnational representation. It has offices called ‘Centres for Eco-Regional Management’ located on Indonesia’s major islands. Furthermore, the EPMA also allocates specific responsibilities to provincial and district governments.9 Both provincial governments and district governments hold power to formulate environmental policies, to develop and implement environmental protection and management plans, to develop and implement SEAs and EIAs, to manage environmental information, to issue environmental licences, to enforce environmental law, and to perform other tasks falling under their respective jurisdictions.

9 Article 63(2) and (3) EPMA.

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236 simon butt and prayekti murharjanti Increasing the power of provincial and district government is unlikely to translate into better environmental management. Law No. 23 of 2014 on Local Government regulates decentralization, including in environmental management matters. According to this regulation, environmental management is a ‘mandatory governmental affair’ (urusan pemerintahan wajib), but not a ‘basic service’. This means that local governments need not establish a specific agency to deal with environmental management but can choose whether to establish their environmental management bodies as agencies or offices. Many local governments chose to establish offices, which are institutionally weak. Nevertheless, hope remains that local governments will begin taking their environmental responsibilities seriously. The EPMA gives higher levels of government power to take over the supervisory and enforcement tasks of lower levels of government that are not performing their tasks adequately.10 Although this takeover power has not been regularly invoked the Ministry of Environment and Forestry has recently exercised it. For example, in 2015 the Minister seized the operational licences of four companies that allegedly caused forest fires in South Sumatera and Riau Provinces, after the relevant local authorities took inadequate action.11 In 2016, the Ministry also used its ‘second-line supervision’ power to stop a controversial reclamation activity in north Jakarta (though this was unsuccessful, as the reclamation continues until today).12

11.3 The Structure and Substance of Environmental Law Indonesian environmental law falls into one of four categories or types, depending on its source: so-called ‘general’ environmental law, sectoral environmental law, ratified international environmental law, and subnational environmental law. General environmental law refers to the EPMA and its enabling regulations issued by the national government. This law is ‘general’ because it purports to cover all aspects of environmental management.13 Sectoral environmental law refers to more specific legislation governing activities that can affect the environment. This includes the Forestry Law,14 Industry Law,15 Plantation Law,16 Mineral and Coal Mining Law,17 Marine Affairs Law,18 and their respective enabling regulations issued at the national level. Ratified international environmental law comprises the international environmental conventions or agreements that Indonesia has ratified, either by the president

10 Articles 73 and 77 EPMA. 11 BBC.com, ‘Sanksi Kebakaran Hutan: Mengapa Perusahaan Besar “Tidak Disentuh” ’ (23 September 2015). 12 Kahfi Dirga Cahya, ‘Kalaeidoskop 2016: Polemik Reklamasi Teluk Jakarta’ Kompas (15 December 2016). 13 Article 44 EPMA. 14 Law No. 41 of 1999 on Forestry. 15 Law No. 3 of 2014 on Industry. 16 Law No. 39 of 2014 on Plantations. 17 Law No. 4 of 2009 on Mineral and Coal Mining. 18 Law No. 32 of 2014 on Marine Affairs.

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indonesia 237 or national legislature.19 Examples of this category include 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 and Law No. 5 of 1994 on the Ratification of the UN Convention on Biological Diversity. Lastly, subnational environmental law comprises all laws and regulations issued by provincial and district governments pertaining to environmental management and sectoral-related matters. Legally, these local laws and regulations must not conflict with most types of national laws. Nevertheless, the Ministry of Environment does have some subnational representation. As noted earlier, it has offices called ‘Centres for Eco-Regional Management’ located on Indonesia’s major islands—Sumatera, Bali, Sulawesi, Java, Kalimantan, and Papua. These offices have a particularly strategic function: to harmonize (memadukan) the policies of the central government and local governments in their jurisdictions. In practice, however, this is an almost-impossible task, because decentralization gives broad powers to manage the environment to local governments. Many of these local governments, therefore, resist efforts directed at bringing their policies into line with central government priorities. In any event, these centres face enormous practical difficulties: there are now hundreds of subnational governments, making it difficult even to obtain these policies, let alone ensure their consistency with each other. We now turn to discuss, as case studies, the overall structure and substance of environmental regulations in: 1) pollution control and hazardous waste, 2) air pollution and climate change, and 3) marine and fisheries.

11.3.1 Pollution Control and Hazardous Waste The EPMA and its enabling regulations constitute the primary sources of Indonesia’s pollution control and hazardous waste law. Many of these enabling instruments take the form of government regulations. Around one third of the EPMA 2009’s 127 articles regulate pollution and environmental damage control (pengendalian). This can be broadly classified into prevention (pencegahan), counteracting (penanggulangan), and restoration (pemulihan) measures.20 While the last two measures are only briefly mentioned, prevention is stipulated in detail, and covers SEAs, spatial planning, environmental quality standards, criteria for environmental damage, EIAs, environmental licences, economic instruments, environmental budgeting, environmental audits, and other instruments deemed necessary to protect the environment.21 To control pollution, the government currently uses environmental licences (which require environmental impact analyses), environmental quality standards, and environmental audits. Other instruments referred to in the EPMA have not yet been employed, because the 19 See Law No. 24 of 2000 on International Agreements. According to this Law, international conventions are to be ratified by statute or presidential decree. Formally, matters concerning human rights and the environment must be ratified by statute. In practice, however, several environment-related international conventions have instead been ratified by Presidential Decree (Keputusan Presiden) or Presidential Regulation (Peraturan Presiden). See e.g. Presidential Decree No. 65 of 2014 on the Ratification of the International Convention on Civil Liability for Bunker Oil Pollution Damage. 20 Article 13(2) EPMA. 21 Article 14 EPMA.

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238 simon butt and prayekti murharjanti government has not promulgated their enabling regulations, even though the EPMA clearly requires the government to do so.22 While very unfortunate, this failure to issue mandated enabling regulations is also commonplace in Indonesia. A significant problem is that the legislature does not specify any penalty for failure to issue these regulations. (However, it bears noting that, in at least one case,23 the Constitutional Court has decided that consequences flow from the government’s failure to issue regulations within deadlines established by statute. The Court held that, if the delegated regulatory authority was not exercised within the mandated time, then that delegated authority would expire.24) The EPMA requires every person who runs a business and/or an activity that could affect the environment to obtain an environmental licence.25 This integrated licence is issued by either the Environment Minister, a provincial governor, or a district head, pursuant to their respective jurisdictions. Prior to the EPMA 2009, there were many licences relevant to environmental management, such as nuisance, business (izin usaha), location, hazardous waste management, and dumping licences. The authority to issue and revoke those licences has varied. Business licences, for example, fall under the authority of Department of Industry, nuisance licences and location licences are issued by local government, and hazardous waste management licences were issued by the Minister of Environment. This system not only created inefficiency for those who wanted to run a business, but also made environmental law enforcement difficult. For example, the revocation of a hazardous waste licence would not prevent a company from continuing operation, if it could point to a valid business licence. By contrast, under Article 40(2) of the EPMA, if an environmental licence is cancelled, any business licence depending on it also becomes invalid. In practice, however, rolling several licences into one has not been successfully achieved, for three interrelated reasons that make relevant government agencies either reluctant or unable to effect integration.26 First, the integrated licence has required pre-existing regulations to be harmonized or amended, which has been resisted because it is time-consuming and expensive. Second, the relative jurisdiction of the various relevant sectors and tiers of government are vague and complex. Who has the power, or the obligation, to make the necessary regulatory changes is often disputed, and the Indonesian legal system provides no reliable mechanisms by which jurisdictional disputes can be decisively resolved.27 Finally, many sectoral departments and local governments have vehemently resisted relinquishing their power to issue these licences, with many of them having come to rely on licence fees to meet institutional costs and to bolster their salaries. The result of these impediments is that only licences that the Environment Ministry previously had power to issue have been integrated into one licence— namely, the environmental protection and management licence.28 In other words, instead of simplifying the licensing process, the EPMA and its enabling regulations have only made the licensing system more complex.

22 Article 73 EPMA. 23 Constitutional Court Decision No 1-2/PUU/XI/2014. 24 Ibid., at 114. 25 Article 36 EPMA. 26 T. Rahmadi, Hukum lingkungan di Indonesia (Jakarta: RajaGrafindo Persada, 2011), 108–9. 27 S. Butt and N. Parsons, ‘Judicial Review and the Supreme Court in Indonesia: A New Space for Law?’ (2014) 97 Indonesia 55–85. 28 Government Regulation No. 27 of 2012 on Environmental Licenses. The Elucidation to Art. 48(2) stipulates that the environmental protection and management licence integrates twelve licences concerning waste and hazardous waste management that the Ministry of Environment had authority to issue.

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indonesia 239 The EPMA also obliges every business and/or activity that could harm the environment to comply with environmental quality standards. These quality standards include water, waste water, sea water, and ambient air, as well as nuisance and other standards relating to science and technology development.29 Additionally, the EPMA encourages people who run businesses and/or activities to carry out environmental audits.30 For most enterprises, this audit is voluntary; but for enterprises posing a high-risk threat to the environment, it is mandatory.31 The EPMA dedicates an entire chapter to hazardous materials and hazardous waste management. The Law requires every person who produces, transports, distributes, utilizes, disposes of, and/or stores hazardous materials to manage them properly. It also requires that person to obtain a licence to manage hazardous waste, which is issued by the Environment Minister, a provincial governor, or a district head, depending on the category of hazardous waste (category 1 or 2), type of activity (e.g. transporting or dumping), the source of waste, scale, and location.32 To give effect to these requirements, Government Regulation No. 101 of 2014 on the Management of Hazardous Waste was issued.33 This regulates, for the first time, hazardous waste dumping, cross-state/transboundary transportation, early warning systems, monitoring and supervision, and administrative sanctions. This new Regulation is stricter that its predecessors in the sense that some materials/waste, formerly categorized as non-hazardous, are now classified as hazardous. It also requires those whose activities produce hazardous waste to take responsibility for that waste—from production until disposal. If these producers delegate this responsibility to a third party, the producers must ensure that the third party it engages complies with existing laws and regulations. The Regulation also provides clear procedures for obtaining licences to manage hazardous waste, and imposes maximum waiting times for licence grant and extension. The difficulties in obtaining these licences had forced some companies that had already applied for a hazardous waste management licence to engage in bioremediation before that licence had been granted. Unfortunately, this opened their employees to criminal charges and, in one particularly notorious case involving Chevron, resulted in conviction. Finally, the Regulation requires producers to engage in ‘restoration’ (pemulihan) to remedy any pollution caused by improper hazardous waste management.

29 Article 20(2) EPMA. Indonesia’s nuisance regulation was first introduced during Dutch colonialisation (Hinder Ordonantie/Nuisance Ordinance, Staatsblaad 226 of 1926). In 2009, the Ministry of Home Affairs promulgated Ministerial Decree No. 2007 0f 2009 on Guidelines for Subnational Nuisance Licenses. This stipulates that any development must not create environmental, social, and economic harm and, therefore, enterprises engaging in development work must beforehand obtain a nuisance licence from the local district head. In 2016, however, the Minister of Home Affairs amended this regulation and deleted the environmental criteria/requirement (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). This was probably motivated by a desire to avoid overlaps with environmental licences and to encourage investment. 30 Article 1(28) EPMA. 31 Articles 48–52 EPMA. 32 Articles 58–59 EPMA; Ministerial Decree No. 101 of 2014 on the Management of Hazardous Waste. 33 The previous regulations concerning hazardous waste were: Government Regulation No. 18 of 1999 on the Management of Hazardous Waste and No. 85 of 1999 on the Amendment of Government Regulation No. 18 of 1999 on the Management of Hazardous Waste.

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240 simon butt and prayekti murharjanti More importantly, the Regulation imposes stronger sanctions upon polluters. These include administrative sanctions, such as orders to cease polluting, as well as licence suspension and revocation. Criminal sanctions can be imposed upon any polluter producing waste exceeding specified levels.34 The Regulation also requires polluters to pay compensation to victims of the pollution they generate, and makes them liable to remedy any environmental damage they cause. Environment Minister Decree No. 13 of 2011 on Compensation for Damages Caused by Pollution and/or Environmental Damage provides guidelines for estimating compensation and reinforces the obligations of polluters and perpetrators of e nvironmental damage to compensate victims. Despite stronger regulations, effective implementation remains a challenge for pollution control in Indonesia. In 2015, for example, Indonesia was ranked as the second biggest marine polluter, after China.35 Pollution reduces the amount of available clean water, which, in Indonesia, has fallen annually by between 15 and 35 per cent per capita.36

11.3.2 Air Pollution and Climate Change Indonesia has strongly supported international climate change action. It signed the United Nations Framework Convention on Climate Change (UNFCCC) in 1992, ratified through Law No. 6 of 1994. Most recently, Indonesia ratified the Paris Agreement to the UNFCCC through Law No. 16 of 2016 and released its first Intended Nationally Determined Contribution (INDC) in 24 September 2015.37 The current administration, under President Joko Widodo, has committed to setting an unconditional reduction target of 29 per cent to be achieved after 2020, with a 41 per cent reduction pledge with international support.38 The reason for such an ambitious goal, perhaps, is the government’s awareness of Indonesia’s vulnerability to the effects of climate change. Also, as one of the largest GHG emitters, Indonesia is acutely aware of the centrality of its role in reducing overall global emissions. Indonesia is the sixth largest GHG emitter after China, the United States, the EU, India, and Russia.39 Around 63 per cent of the emissions are from land use change, deforestation, and peat and forest fire.40 For this reason, Indonesia’s primary 34 Pollution occurs when a polluter exceeds the environmental quality standard, which depends not only on the amount emitted, but also the carrying capacity of the environment. Environmental quality standards are different from emission standards, and exceeding emission standards does not mean exceeding environmental quality standards. The EPMA stipulates that exceeding emission standards is a criminal offence. 35 ‘Indonesia Second Biggest Marine Pollutant, After China’ Jakarta Post (Jakarta, 6 November 2015), available at: http://www.thejakartapost.com/news/2010/10/26/bibitchandra-saga-may-take-anew-turn.html. 36 WEPA, ‘State of Water Environmental Issues—Indonesia’ (Water Environment Partnership in Asia, nd), available at: http://www.wepa-db.net/policies/state/indonesia/indonesia.htm. 37 ‘Climate Action Tracker—Indonesia’ (Climate Action Tracker, 3 November 2016), available at: http://climateactiontracker.org/countries/indonesia.html. 38 Republic of Indonesia, ‘First Nationally Determined Contribution (NDC) of Republic of Indonesia’ (2016), available at: http://newsroom.unfccc.int/. 39 S. Butt, R. Lyster, and T. Stephens, Climate Change and Forest Governance Lessons from Indonesia (London, New York: Taylor and Francis 2015), 46. 40 Republic of Indonesia, ‘First Nationally Determined Contribution (NDC) of Republic of Indonesia’ (2016), available at: http://newsroom.unfccc.int/, at 2. Another report provides an even higher number,

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indonesia 241 focus to mitigate climate change has been through REDD+ schemes and other forestry and land use-related approaches.41 As a general law concerning environmental protection and management, the EPMA is relatively weak on climate change adaptation and mitigation. It only requires that the national government issue a Government Regulation on Standard Criteria for Environmental Destruction, which covers environmental destruction from climate change,42 and that all levels of government: a) develop Environmental Protection and Management Plans (EPMPs) by considering, among other matters, climate change; b) develop strategic environmental assessments which include the level of vulnerability and adaptive capacity against climate change; and c) establish and implement policies to control climate change impact. Such broad and general formulations seem unlikely to result in the creation of a comprehensive legal framework to adequately support the government’s rhetoric. Moreover, these obligations have remained largely inoperative because the necessary government regulations have not yet been issued. The Indonesian government has, however, promulgated some legal and policy instruments specifically directed towards reducing GHG emissions, such as Presidential Regulation No. 61 of 2011 on the National Action Plan to Reduce GHG Emissions, Presidential Regulation No. 71 of 2011 on the GHG Inventory, Presidential Instruction No. 6 of 2013 on Suspension of New Licenses and Improving Governance of Primary Forest and Peat Lands, Law No. 18 of 2013 on Prevention and Eradication of Forest Destruction, and Law No. 37 of 2014 on Soil and Water Conservation, which governs sustainable agriculture and land use. The government has also sought to reduce GHG emissions in the energy sector by issuing Government Regulation No. 79 of 2014 on National Energy Policy. More importantly, the government has pledged to adopt climate change resilient development into Indonesia’s National Medium-Term Development Plan (2015–19).43 Even though these GHG regulations are relatively new, Indonesia has had a regulatory framework for air pollution control since the 1990s, most of which remains in effect.44 The Environment Minister during this period issued several decrees pertaining to air pollution preventions measures, including emission standards for mobile sources45 and stationary stating that the land use change through deforestation, draining and burning peatlands and agriculture contribute to around two third of the Indonesia’s emissions: Burke and Resosudarmo, ‘Survey of Recent Developments’, at 311. 41 Butt, Lyster, and Stephens, Climate Change and Forest Governance Lessons from Indonesia, at 52. 42 The criteria should be based on increases in temperature, sea levels, cyclones, and drought. 43 Republic of Indonesia, First Nationally Determined Contribution (NDC) of Republic of Indonesia’. The National Medium-Term Development Plan is a policy document that translates the President’s ‘vision and mission’ into a five-year programme. It includes development strategies and policies, state institutions and ministry programmes, and macroeconomic priorities. Every development programme/ activity must refer to this document. See Law No. 25 of 2004 on the National Development Plan System. 44 Article 124 EPMA 2009 stipulates that all of the enabling regulations of the previous environmental law shall remain in effect so long as they are consistent with the EPMA 2009. 45 Ministerial Decree No. 35/MENLH/10/1993 on Emission Standards for Vehicles.

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242 simon butt and prayekti murharjanti sources,46 and standards for noise,47 vibration,48 odour,49 and air pollution.50 The Minister also issued guidelines for measuring, reporting, and providing air pollution information.51 After the enactment of EMA 1997, the legal basis for air pollution control was strengthened through issuance of Government Regulation No. 41 of 1999 on Air Pollution Control and Government Regulation No. 4 of 2001 on Environmental Destruction and/or Pollution Control from Forest and/or Land Fires. Both stipulate prevention, supervision, and enforcement mechanisms. Government Regulation No. 41 of 1999 requires air pollution to be controlled through prevention (pencegahan), control (pengendalian), and restoration of air quality (pemulihan mutu udara). As for prevention, in addition to the measures mentioned above, the Regulation establishes ambient air quality and nuisance standards.52 Any business or activity producing emissions must comply with the relevant standards, take prevention and control measures, provide information, and perform supervision to ensure compliance. As for control and restoration, the Regulation requires the Environment Minister to establish guidelines for air pollution control and restoration and to supervise emitter compliance. It also obliges air polluters to pay a control fee (biaya penanggulangan) and compensation for affected parties. For some breaches of standards, administrative or criminal sanctions can be issued. The Regulation also allows provincial governments to establish air quality standards for their respective provinces. Many provincial governments—such as those in East Java,53 Lampung,54 Jakarta,55 and East Kalimantan56—have done just this. The provincial standard, however, must be stricter or at least equal to the national standard, and must be reviewed every five years. If a provincial government does not establish its own standard, it must adopt the national standard. Government Regulation No. 4 of 2001 prohibits every person from burning forest and/or land.57 The EPMA 2009, however, exempts customary communities from this prohibition, allowing them to use fire to clear forest or land for agriculture, up to two hectares per family. However, they must ensure that fires do not spread across a larger area.58 Critics have described this exemption as a loophole that enables companies to purchase these community allocations to burn large tracts of land.59 46 Ministerial Decree No. 13/MENLH/3/1995 on Emission Standards for Stationary Sources. 47 Ministerial Decree No. 13/MENLH/11/1996 on Noise Standards. 48 Ministerial Decree No. 49/MENLH/11/1996 on Vibration Standards. 49 Ministerial Decree No. 50/MENLH/11/1996 on Odour Standards. 50 Ministerial Decree No. 45/MENLH/10/1997 on the Air Pollution Standards Index. 51 Head of Bapedal Decree No. 107/Kabapedal/11/1997 on the Technical Guidelines for Measurement and Reporting Standards of Air Pollution. 52 Annex of Government Regulation No. 41 of 1999 on Air Pollution Control. 53 Governor of East Java Regulation No. 10 of 2009 on Ambient Air Quality from Mobile and Static Resources. 54 Local Regulation of Lampung Province No. 20 of 2014 on Air Pollution Control. 55 Governor of DKI Jakarta Province Decree No. 551 of 2001 on Ambient Quality and Nuisance Standards. 56 Governor of East Kalimantan Decree No. 339 of 1988 on Environmental Quality Standards for East Kalimantan Province. 57 The term ‘forest and land fires’ includes fires from peatland burning which are not necessarily in the forest zone. 58 Article 69 EPMA 2009 and its Elucidation. 59 R. Dessthania Suastha, ‘Perusahaan Mengatasnamakan Masyarakat Untuk Membakar Hutan’ CNN Indonesia (30 August 2016), available at: http://www.thejakartapost.com/news/2010/10/26/bibitchandra- saga-may-take-a-new-turn.html.

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indonesia 243 Government Regulation No. 4 of 2001 also requires every enterprise to prevent forest and/or land fires by having early warning systems and fire prevention devices; developing standard operating procedures; and appointing and training officials or units responsible for fire prevention/control. The enterprise must carry out monitoring and report to the relevant governor or district head at least every six months. Enterprises causing forest and/ or land fires are also liable for environmental restoration. All heads of government60 must perform periodic supervision over the pollution control measures and implementation in their respective jurisdictions. They must also stop fires when they occur, and can require enterprises to cease their activities and employ third parties to help extinguish the fires at the enterprise’s expense. The current legal framework for climate change and air pollution control might be sufficient to reduce emissions, at least on paper. The main challenge is effective implementation and coordination among sectoral agencies and levels of government. Equally important, to achieve long-term policy goals, is comprehensive legal harmonization of all relevant matters related to climate change.61

11.3.3 Marine and Fisheries As an archipelago with almost two-thirds of its territory consisting of seawater, Indonesia has various laws regulating marine protection and fisheries. In addition to the EPMA, several sectoral laws regulate marine issues and fisheries, such as Law No. 32 of 2014 on Maritime Affairs, Law No. 1 of 2014 on the Amendment of Law No. 27 of 2007 on Coastal and Small Island Management, and Law No. 31 of 2004 on Fisheries. Prior to introducing these statutes, the government had demonstrated a concern to protect the marine environment. Three international conventions relating to the law of the sea were ratified by Law No. 19 of 1961,62 and the Convention on Civil Liability for Oil Pollution Damage in 1978 by Presidential Decree No. 18 of 1978. From the late 1990s, the government began introducing technical regulations pertaining to marine conservation and pollution prevention, such as Government Regulation No. 19 of 1999 on Marine Pollution and Damage Control. Government Regulation No. 19 of 1999 stipulates that control of seawater pollution and damage is to be achieved by protection, damage prevention, and rehabilitation (pemulihan). To this end, the Regulation requires the government to develop seawater quality standards, marine damage standard criteria, licences for dumping, and monitoring processes. Accordingly, the Minister of Environment promulgated Ministerial Decree No. 4 of 2001 on Standard Criteria for Coral Reef Damage, Ministerial Decree No. 51 of 2004 on Seawater Quality Standard and its amendment, Ministerial Decree on Standard Criteria for Mangrove Damage, and Ministerial Decree No. 12 of 2006 on Licensing Procedures for Waste Disposal into Marine Areas. The President has also issued Regulation No. 109 of 2006 on the 60 Namely, the district head in districts, the governor in provinces, and the Minister at the national level. 61 Republic of Indonesia, ‘First Nationally Determined Contribution (NDC) of Republic of Indonesia’, at 5. 62 This Law ratifies the Convention on Fishing and Conservation of the Living Resources of the High Seas, Convention on the Continental Shelf, and Convention of the High Seas.

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244 simon butt and prayekti murharjanti Management of Sea Oil Spills. Under these regulations, entities must obtain a licence to dump or dispose of waste and must comply with standard criteria. Administrative and criminal sanctions stipulated in these regulations and the EPMA itself apply for breach of these regulations. With the decline of forest and mining resources, marine and fisheries have quickly become an important sector upon which the government relies to promote economic growth and food security.63 The current President himself has repeatedly reiterated this.64 This economic potential, however, is threatened by overfishing, much of it illegal, unreported, and unregulated (IUU), which is said to threaten around 65 per cent of Indonesia’s coral reefs.65 The Minister for Maritime Affairs and Fisheries has therefore issued several policies to prevent further damage to marine biodiversity, including a fishing moratorium for foreign fishermen,66 a transhipment ban,67 and a prohibition on using destructive fishing devices, such as trawls and seine nets.68 The President has also established a special task force to prevent and to combat IUU fishing.69 This task force conducts compliance audits and law enforcement activities, in coordination with other relevant agencies, such as the Indonesian police, army, and public prosecution service.

11.4 Implementation Framework 11.4.1 The Merger of the Environment and Forestry Ministries In 2014, newly elected President Joko Widodo merged the Ministry of Environment and Ministry of Forestry into the Ministry of Environment and Forestry. The rationale for the merger was three-fold. First, it aligned with the new President’s pledge to make Indonesia economically independent, including through forestry industries, but without damaging the environment.70 Second, Indonesia’s forests are threatened by illegal logging, plantations, and mining. Merging the two ministries, it was hoped, would bring environmental and 63 A. Santosa, Alampun Butuh Hukum dan Keadilan (Jakarta: Prima Pustaka, 2016), 29. 64 ‘Jokowi: Kembalikan Kejayaan Bahari Indonesia’ Pikiran Rakyat (16 October 2016), available at: http://www.pikiran-rakyat.com/cetak/2007/112007/07/0902.htm. 65 S. Mulyani Indrawati, ‘The Case for Inclusive Green Growth’ (Indonesia Green Infrastructure Summit, Jakarta, 9 June 2015), available at: http://www.worldbank.org/en/news/speech/2015/06/09/thecase-for-inclusive-green-growth. 66 Minister of Maritime Affairs and Fisheries Regulation No. 56 of 2014 on Fishing Moratorium in Indonesian Fishing Zones. 67 Minister of Maritime Affairs and Fisheries Regulation No. 57 of 2014 on Fishing Businesses in Indonesian Fishing Zones. 68 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. 69 Presidential Regulation No. 115 of 2015 on the Task Force for Combating Illegal Fishing. 70 J. Widodo and J. Kalla, ‘Jalan Perubahan Untuk Indonesia Yang Berdaulat, Mandiri Dan Berkepribadian: Visi Misi Dan Program Aksi Jokowi Jusuf Kalla [Outline of Policies, Lodged with Electoral Commission]’, 36, available at: http://kpu.go.id/koleksigambar/VISI_MISI_Jokowi-JK.pdf.

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indonesia 245 forestry policies together, to ensure that forest protection was prioritized.71 Third, the merger would eliminate overlapping jurisdiction between the two ministries. Both parliamentarians and non-governmental organizations (NGOs) criticized the merger.72 One problem raised was that environmental management encompasses many sectoral issues, including mining, marine affairs, land use, energy, and so on. Merging these ministries will not, they argued, solve the existing coordination problems between sectoral departments. These two ministries have, for many years, seen each other as ‘competitors’, with the Forestry Ministry’s main concern to increase revenue by awarding licences, sometimes illegally, and the Environment Ministry seeking to prevent this. For critics, simply merging these two Ministries will not, of itself, lead to harmonization of policies, approaches, and motivations. Rather, the interests of the more powerful Forestry Ministry will likely overwhelm those of the Environment Ministry within the new structure. At the very least, these conflicting interests are likely to undermine the general performance of the new Ministry.

11.4.2 Judicial Enforcement In Indonesia, environmental law enforcement proceeds by way of administrative, civil, or criminal judicial processes. Disputes brought by Indonesian citizens against the government over alleged infringements of environmental law or misuse of power by a state organ or official, are adjudicated in the administrative courts. Civil litigation and criminal proceedings are heard in the general courts. Indonesia also has a relatively new Constitutional Court that enforces various constitutional rights relating to the environment. Both the administrative and general courts are widely considered to be largely ineffective in enforcing environmental laws. Only limited data on the number of cases brought before these courts are available. However, reports indicate that victims of environment-related violations who seek civil redress or remedies are rarely successful in court.73 Even successful plaintiffs generally find enforcing favourable decisions very difficult. The reasons for this are various. They include absconding defendants; the government simply ignoring judicial decisions (with almost no consequences); decisions so unclear that enforcement is not possible; or, in cassation cases, a certified copy of the decision not being forwarded to the relevant first instance general court for enforcement. In criminal cases, perpetrators tend to receive very low sanctions for environmentrelated offences, if any, as is demonstrated by Supreme Court verdicts in 2015. According 71 Detiknews, ‘Menebak Alasan Jokowi Menggabung Kementerian Kehutanan Dan Lingkungan Hidup’ Detiknews (23 October 2014), available at: http://news.detik.com/berita/2727422/menebak-alasanjokowi-menggabung-kementerian-kehutanan-dan-lingkungan-hidup. 72 Z. Sikumbang, ‘Khaeron: Penggabungan Lingkungan Dan Kehutanan Tidak Efektif ’ Antaranews. com (25 October 2014); J. Waluyo, ‘Konsekuensi Kementerian Kehutanan Digabung KLH’ Jurnal Parlemen (26 October 2014); National Geographic Indonesia, ‘Kawal Dampak Penggabungan KLH-Kemenhut’ National Geographic Indonesia (27 October 2014). 73 D. Nicholson, Environmental Dispute Resolution in Indonesia (Leiden: KITLV Press, 2009); P. Murharjanti, ‘Efektifitas Penyelesaian Sengketa Lingkungan Hidup Di Indonesia [The Effectiveness of Environmental Dispute Resolution in Indonesia]’ (Jakarta: Van Vollenhoven Institute, Leiden University and Bappenas, 2011).

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246 simon butt and prayekti murharjanti to the Supreme Court annual report, the Court heard twenty-five environment-related criminal cases in 2015. In nineteen of them, the Court issued or confirmed sentences of less than two years’ imprisonment; and in five, defendants were found not guilty or otherwise released. In only one case was a defendant imprisoned for three to five years.74 Several factors contribute to the ineffectiveness of environmental adjudication.75 First, the EPMA provides unclear and general norms. Unfortunately, this leaves great uncertainty about how, or whether, the Law applies to a given fact scenario, and Indonesian judges are generally reluctant to interpret statutes or ‘fill in gaps’ as they are identified. The result is that many generally worded provisions of the Law have not been consistently enforced. A second factor is a general lack of judicial capacity to handle environmental cases using the entirety of the available legal framework. For example, in some cases judges have applied only the EPMA and its enabling regulations, and ignored entirely a large set of complementary sectoral laws. The converse has also occurred, where sectoral laws are applied without considering the EPMA’s applicability. For example, in some forestry or mining cases resulting in environmental damage, judges have not applied the EPMA, preferring instead to apply sectoral laws, which commonly impose lower penalties. A third factor is that many prosecutors cannot formulate clear and strong indictments in any type of case, let alone environmental cases, which can be highly technical. Observers have long criticized prosecutors for losing relatively clear-cut cases and obtaining very low punishments, through failure to adduce key evidence or poorly presenting evidence in court. Finally, corruption remains a major problem in Indonesia. This problem is widely documented, as is its deleterious effects on outcomes in civil and criminal cases.76 It is not surprising, therefore, that defendants in civil and criminal cases are often suspected of bribing corrupt officials to escape investigation, prosecution, civil liability, or criminal conviction. (Corruption is particularly acute in cases involving exploitation of natural resources, where corruption is already extremely rife, particularly in the issuance of concessions and licences.77)

11.4.2.1 Certified Judges for the General and Administrative Courts Amidst massive environmental crisis and weak law enforcement, civil society has, over the past decade or two, attempted to convince the Supreme Court to establish either an environmental judicature (peradilan lingkungan) or a special environment court (pengadilan lingungan).78 These two models are different in important ways. The environmental judicature option involves the establishment of an entirely new branch of courts to sit alongside the general and administrative courts, under the leadership of the Supreme Court. NGOs considered this option the best for environmental protection. However, this option required amending the Constitution, which most Indonesian politicians appear to be very reluctant to do. The 74 Mahkamah Agung, ‘Supreme Court Annual Report 2015’ (Mahkamah Agung, Jakarta 2015) 111. The precise sentence of each case is unknown. For the Annual Report, the Supreme Court classified sentences into nine categories: 10 years, death sentence, acquittal, and rehabilitation. 75 Nicholson, Environmental Dispute Resolution in Indonesia; Murharjanti, ‘Efektifitas Penyelesaian Sengketa Lingkungan Hidup Di Indonesia’. 76 S. Butt, Corruption and Law in Indonesia (London, New York: Routledge, 2012). 77 Butt, Lyster, and Stephens Climate Change and Forest Governance Lessons from Indonesia. 78 Indonesian Center for Environmental Law, ‘Analysis on the Effectiveness of Environmental Monitoring and Compliance’ (Jakarta, 2009).

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indonesia 247 second model is the establishment of a specialized environmental court within the broader jurisdiction of the general courts, located in parts of Indonesia where environmental infringements are common or likely. These changes could have been effected by statute. However, this model was viewed with disfavour by some activists who doubted whether housing these courts within the general courts would improve enforcement. Neither model has been adopted. Instead the Supreme Court introduced certified environmental judges.79 Only general and administrative court judges who have been trained and certified can handle environmental cases in their respective courts. They are required to meet administrative and merit requirements, such as: working as a judge for at least ten years, never having been disciplined for misconduct, possessing adequate knowledge of national and international environmental law, being able to implement e nvironmental legal instruments and procedural law, and being able to perform recthsvinding (discovery of the law) to meet changing environmental needs.80 From the first batch of judges in 2011, until November 2016, 577 judges were certified.81 However, given that Indonesia has over 350 general courts, shortages of certified judges were inevitable. Anticipating this, the Supreme Court introduced the so-called detasering scheme, under which certified environmental judges can be ‘shared’ among courts that do not have them. However, the Supreme Court cancelled the scheme in March 2015, claiming that moving certified judges around Indonesia was too expensive. Instead, the Supreme Court issued a new rule requiring a chairperson of a general or administrative court to handle environmental cases if no certified judge is available at that court. If the chairperson is not available, then the case can be heard by the deputy chairperson or another senior judge.82 The types of environmental cases that are funnelled to certified environmental judges are defined broadly. They include almost any breach in forestry, plantation, mining, coastal and marine, spatial planning, water resource, energy, industry, and conservation matters.83 Problematically, many court registrars who classify cases to determine where they should be heard and by whom have insufficient knowledge about substantive environmental issues to make these decisions. Consequently, cases involving these very issues are sometimes allocated to general court judges with little or no environmental expertise.

79 Supreme Court Decree No. 134/KMA/SK/IX/2011. The Decree notes that environmental cases must be handled by judges who understand the urgency of protecting the environment and natural resources and, in Art. 3, states that ‘Certified environmental judges aims to increase the effectiveness of environmental case handling in court, as part of endeavours to protect the environment and to provide justice’. The Supreme Court has issued several decrees to support the certified judges system. Decree No. 178/ KMA/SK/XI/2011 on the Selection Team for the Certified Environmental Judges System established that the team is led by the Judicial Reform Coordinator of the Supreme Court. Decree No. 26/KMA/SK/ II/2013 on the Selection and Appointment of Certified Environmental Judges stipulates that selection consists of three stages: administrative selection, competence/merit selection, and integrity selection. Only judges who pass all three can handle environmental cases. Decree No. 36/KMA/SK/II/2013 on the Guidelines for Handling Environmental Cases provides guidelines on using international environmental principles, such as precautionary principles, polluter-pays principles, common but differentiated responsibility, and so on. It also gives practical guidelines on how to deal with NGO standing, class actions, in-court mediation, environmental evaluation, and criteria to choose expert witnesses. 80 Article 6 Supreme Court Regulation No. 134/KMA/SK/IX/2011. 81 Personal email communication with a member of the certification team, 25 November 2016. 82 Article 1 Supreme Court Regulation No. 36/KMA/SK/III/2015. 83 Article 5(3) Supreme Court Regulation No. 134/KMA/SK/IX/2011.

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248 simon butt and prayekti murharjanti Conversely, certified judges might be allocated to cases that are not really environment-related, taking them away from the cases in which their expertise is desperately needed.

11.4.2.2 Judicial Decisions and Enforcement The Supreme Court does not provide reliable data indicating the number and type of environmental cases and the decisions they hand down. However, some Indonesian courts have issued landmark decisions. These cases are the exception rather than the norm, but they demonstrate that, despite the capacity and enforcement problems discussed earlier, some judges have already played a significant role in protecting and promoting substantive and procedural environmental rights in Indonesia. In the Walhi v PT Inti Indorayon Utama case,84 the Central Jakarta District Court permitted an environmental organization to file a lawsuit in the public interest for the first time in Indonesian legal history. The court did this even though environmental law at that time did not recognize NGO standing. It paved the way for law-makers to then amend, in 1997, the Law on Basic Environmental Management (1982), to formally grant standing to NGOs to bring such claims. In Dedi et al. v PT. Perhutani,85 the Court applied precautionary principles to establish strict liability in tort law for environmental damage. The plaintiffs were victims of a landslide in Garut, West Java. They filed a class action against a state-owned company (Perhutani) and the government. The plaintiffs argued that Perhutani should be held strictly liable for damage resulting from a landslide that occurred in the area over which Perhutani held a concession, and that the government should be jointly liable for failing to monitor and control Perhutani’s activities. The case was appealed up to the Supreme Court, which affirmed the decision of the first instance court, as follows. First, when the environment is damaged, lack of knowledge cannot be used as a reason to postpone recovery of the damage. Second, the application of precautionary principles shifts the liability rule from negligence to strict liability. Ultimately, the Court ordered the defendants to undertake recovery efforts, provide recovery funds of at least IDR 20 billion (more than US$2 million), and to pay the victims IDR 10 billion (more than US$1 million). Perhutani is important for another reason: in it, the Indonesian Supreme Court acknowledged the use of international principles as a reference for deciding environmental cases.86 In the face of conflicting explanations from both parties and their witnesses concerning the exact cause of the landslides, the Court resorted to the precautionary principle from Principle 15 of Rio Declaration. This was significant, because, prior to this case, the Court had almost never applied principles of international law that had not yet been incorporated in a domestic legal instrument.87 More importantly, however, is that this case prompted the statutory adoption of precautionary principles, in the EPMA 2009.88 84 Walhi v P.T. Inti Indorayon Utama, Decision of the Central Jakarta District Court No. 820/ Pdt./G/1988/PN. 85 Dedi et.al. v PT. Perhutani, Decision of the Supreme Court No. 1794 K/PDT/2004 (22 January 2007). 86 A. G. Wibisana, ‘The Development of the Precautionary Principle in International and Indonesian Environmental Law’ (2011) 14(1/2) Asia Pacific Journal of Environmental Law 169. 87 S. Butt, ‘The Position of International Law within the Indonesian Legal System’ (2014) 28(1) Emory International Law Review 1. 88 Article 2(f) EMPA 2009.

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indonesia 249 The Supreme Court’s most recent landmark decision in an environment-related case is Kalista Alam.89 This was a civil lawsuit, filed by the Environment Minister90 against PT Kalista Alam for allegedly burning forest to clear land. PT Kalista Alam is a palm oil plantation company, and it had commenced operations across 1,605 hectares of peatland in the Leuser Ecosystem Zone (Kawasan Ekosistem Leuser).91 The Environment Minister filed this claim on behalf of citizens and the environment to demand redress and remedies for the environmental damage caused.92 The plaintiff won at first instance, and then again on appeal before the Supreme Court. For the first time, the Court used scientific evidence to measure the damage caused by forest fires and determined compensation based on the standard for evaluating environmental harm provided in Article 90(1) EPMA. The Court ordered PT Kalista Alam to pay Rp. 336 billion (US$25.6 million) in compensation—the highest payout in Indonesian legal history in an environment-related cases. More importantly, the Supreme Court confirmed the first instance court’s use of the in dubio pro natura (in doubt, favour nature) doctrine, which, in this case, meant that uncertainty or ambiguity about the causal relationship between the forest fires and environmental loss should be resolved using an interpretation that protects the environment.

11.4.2.3 Judicial Review in the Constitutional Court The Constitutional Court is one of Indonesia’s newest judicial institutions. It began operating in 2003 and has several functions, including constitutional review.93 Using this power, the Court assesses statutes to ensure that they are consistent with, and do not breach, the Constitution. This power is limited, however: the Court cannot review the constitutionality of other types of laws, such as regulations, or government action. Only the Supreme Court can review these other types of laws, but only for consistency with national statutes.94 From its establishment until time of writing, the Indonesian Constitutional Court has issued thirty-three judicial review decisions relating to the environment. Many applications for review of environment-related legislation have been brought by NGOs, civil society organizations (CSOs), or individual activists concerned about environmental issues. In most cases, they have pointed to one or more of several constitutional rights, such as the right to justice and fairness,95 the right to life96 and, perhaps most importantly, the right to a good and

89 Ministry of Environment v PT. Kalista Alam, Decision of the Supreme Court No. 651 K/PDT/2015 (28 August 2015). See W. Kisworo, ‘Kalista Alam Case Set Precedent for Combating Forest Fires’ Jakarta Post (Jakarta, 23 September 2015), available at: http://www.thejakartapost.com/news/2010/10/26/bibitchandra-saga-may-take-a-new-turn.html. 90 As mentioned, the Ministry of Environment is now merged with Ministry of Forestry. This case was filed in 2012—before the merger. 91 The operational licence was issued by the Governor of Aceh in 2010. 92 Article 90(1) Law on EPM 2009. 93 The Court has other powers, including to resolve disputes about the relative jurisdiction of state institutions, the dissolution of political parties and general election results. 94 For more discussion on the judicial review powers of the Constitutional and Supreme courts, see S. Butt and T. Lindsey, The Indonesian Constitution: A Contextual Analysis (Oxford: Hart Publishing, 2012). 95 Article 28D(1) Constitution, used in sixteen applications. 96 Article 28A Constitution, used in eight applications.

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250 simon butt and prayekti murharjanti healthy environment.97 Procedural constitutional rights, such as the right to information and the right to participation, have only been argued twice and once r espectively in these cases.98 In some cases, applicants have put forward strong arguments centred on environmental protection. In the Limbah B3 (hazardous waste) case,99 for example, the applicants argued that inconsistencies between provisions in the EPMA 2009 which required permits to manage hazardous waste in fact prevented them from effectively managing hazardous waste, which in turn violated the community’s right to a good and healthy environment. Likewise, in the Minerba (coal mining) case,100 the applicant provided a clear argument about how nonparticipatory zoning for mining areas might jeopardize the environment, the right of the people to participate in environmental decision-making (Article 28E of the Constitution), and the right to a good and healthy environment. In the Tambang Hutan Lindung (mining in protected forest) case, the applicants unsuccessfully argued that Law No. 19 of 2004—which permitted the operation of open pit mining in protected forest—jeopardized the environment and the people’s right to a good and healthy environment.

11.4.2.4 Judicial Reasoning In many instances, the Court’s decisions in environment-related cases has promoted better protection of human rights and environmental protection. However, the judges have not always presented their arguments in logical and chronological ways. Often, they raise important issues but provide no further explanation; commonly, they ignore important arguments altogether. Examples of these problematical practices can be found in the Limbah B3 and Tambang Hutan Lindung cases, mentioned above. In Limbah B3, for example, the Court upheld the constitutional right to a good and healthy environment, but its reasoning was so brief and unclear that it led to confusion about how its decision should be enforced, and the implications of its decision for other legislation and future cases. In Tambang Hutan Lindung, the Court acknowledged the constitutional right to a healthy environment and that significant environmental damage was likely to be caused by mining operations in a protected forest. However, for the Court, these factors were outweighed by the need for legal certainty for investors. The Court did not explain in detail how it balanced these competing considerations.

11.4.2.5 Enforcement of Constitutional Court Decisions The Constitution, the Constitutional Court Law, and Constitutional Court Regulations provide no mechanisms by which the Court can enforce its decisions or impose sanctions for 97 Article 28H(1) Constitution, used in ten applications. 98 Constitutionalizing procedural environmental rights are important because, not only it can provide means for achieving substantive rights, including right to life, right to water, right to a healthy environment, and other human rights, but it also promotes democratization and good governance. Procedural rights are means to an end and ends themselves: J. Ray, ‘Constitutional Directions in Procedural Environmental Rights’ (2013) 28 Journal of Environmental Law & Litigation 28, available at: http://works.bepress.com/ james_may/81. The effectiveness of the right to a healthy environment, for example, can be achieved by providing access to environmental information, access to participate in decision-making processes which affect the environment, and access to justice. 99 Constitutional Court Decision No. 21/PUU-XII/2014. 100 Constitutional Court Decision No. 32/PUU-VIII/2010.

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indonesia 251 failure to comply with its decisions. Yet for the most part, its decisions have been respected by Parliament and the government.101 There have been, however, exceptions in some environment-related cases, where the government has either simply ignored a Constitutional Court decision entirely or circumvented the Court’s decision by issuing lower-level regulations to replace statutory provisions, and even entire statutes, that the Court invalidated.102 The most blatant example of the government ignoring a Constitutional Court decision is its response to the EPMA case.103 In this case, the Court decided that environmental law enforcement was to be coordinated by the Environment Ministry.104 However, in the aftermath of the massive forest fires case that occurred in 2016, the Ministry of Environment appears to have ignored this obligation to coordinate. The Environment Minister absolved herself of responsibility when, in highly controversial circumstances, the police stopped investigating thirteen companies for causing forest fires. Similarly, in the mining zonation case,105 the Court ordered the government to invite genuine public participation in mining zonation decision-making. Years after the decision was issued, the Ministry of Energy and Natural Resources has not amended any laws to provide for this public participation. There are several examples of cases where the government has issued lower-level regulations to avoid statutory invalidations made by the Constitutional Court. In the Customary Forest case,106 for example, the Court recognized the entitlement of customary people to manage customary forest. However, a year later, the Ministry of Forestry issued a Regulation that excluded customary forest communities from being consulted during forest zonation processes. The Regulation also specified that, once the customary people received an entitlement to manage a customary forest area, that area must be excluded from the forest zone.107

11.5 Conclusion Indonesia’s large reserves of mineral and other natural resources, including thermal coal, tin, copper, gold, nickel, forests and marine products, have long been a foundation of Indonesia’s economic growth. But they have been exploited with little, if any, concern for environmental protection or sustainability, much less for the communities that exploitation affects. The Indonesian government has responded to international and domestic concern by enacting new laws, imposing onerous standards and penalties for non-compliance, but these have not been consistently applied or enforced. 101 S. Butt, The Constitutional Court and Democracy in Indonesia (The Netherlands: Brill, 2015), 127. 102 Butt and Lindsey, The Indonesian Constitution. 103 Constitutional Court Decision No. 18/PUU-XII/2014. 104 Article 95(1) EPMA stipulates that, ‘In the framework of law enforcement against environmental crimes, integrates law enforcement may be executed by civil servant investigators, police and prosecutors under the coordination of the Minister (of Environment)’ (emphasis added). The Court’s decision erased the word ‘may’, which means that the Ministry of Environment’s role to coordinate other law enforcement is no long a matter for the Ministry’s discretion. 105 Constitutional Court Decision No. 32/PUU-VIII/2010. 106 Constitutional Court Decision No. 35/PUU-II/2012. 107 Regulation of Forestry Minister No. 62 of 2013 on the Amendment of Ministerial Regulation No. 44 of 2012 on Forest Zone Designation.

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252 simon butt and prayekti murharjanti There have, however, been some judicial ‘victories’ and we expect that Indonesia’s Constitutional Court could yet become an effective forum in which to challenge legislation that undermines effective environmental protection and management. However, until the broader problems of corruption, jurisdictional conflict, and administrative and judicial competence can be solved, we fear that environment law enforcement will remain i neffective and that continuing very high levels of environmental degradation are inevitable.

11.6 Selected Bibliography Bedner, A., ‘Amalgamating Environment Law in Indonesia’ in J. Arnscheidt, B. van Rooij, and J. M. Otto (eds.), Lawmaking for Development: Explorations into the Theory and Practice of International Legislative Projects (Leiden: Leiden University Press, 2008). Bedner, A., ‘Consequences of Decentralization: Environmental Impact Assessment and Water Pollution Control in Indonesia’ (2010) 32(1) Law & Policy 38. Butt, S., R. Lyster, and T. Stephens, Climate Change and Forest Governance Lessons from Indonesia (London, New York: Taylor and Francis, 2015). Fisher, E., C. Elizabeth, J. S. Jones, R. von Schomberg (eds.), Implementing the Precautionary Principle: Perspectives and Prospects (Cheltenham: Edward Elgar Publishing 2006). Hayward, T., Constitutional Environmental Rights (Oxford, New York: Oxford University Press 2005). Nicholson, D., Environmental Dispute Resolution in Indonesia (Leiden: KITLV Press, 2009). Niessen, N., Municipal Government in Indonesia: Policy, Law, and Practice of Decentralisation and Urban Spatial Planning (Leiden: CNWS Publishers 1999). Otto, J. M., ‘Implementation of Environmental Law in Indonesia: Some Administrative and Judicial Challenges’ (1996) 2 Indonesian Law and Administration Review 32. Wibisana, A. G., ‘The Development of the Precautionary Principle in International and Indonesian Environmental Law’ (2011) 14(1/2) Asia Pacific Journal of Environmental Law 169.

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chapter 12

Ja pa n Julius Weitzdörfer and Lucy Lu Reimers

12.1 Overview

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12.2 Devolution of Powers

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12.3 Structure and Substance of Environmental Law

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12.4 Implementation Framework

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12.5 Selected Problem: Nuclear Energy Law as Environmental Law

275

12.6 Acknowledgements

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12.7 Selected Bibliography

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12.2.1 12.2.2 12.2.3 12.2.4

12.3.1 12.3.2 12.3.3 12.3.4 12.3.5 12.3.6 12.3.7 12.3.8

12.4.1 12.4.2 12.4.3 12.4.4 12.4.5

Constitutional Law The Environmental Basic Law Environmental Basic Plans Prefectural and Municipal Planning

Nature Conservation Air Quality Noise Protection Waste Management Water Quality Hazardous Substances Impact Assessment Climate Change

Civil Liability in Tort Civil Injunctive Remedies Administrative Trials and Pre-trial Review State Liability Environmental ADR

256 257 258 258

260 262 263 264 266 266 268 269 271 272 273 273 274

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254 julius weitzdörfer and lucy lu reimers

12.1 Overview Since the late nineteenth century, major environmental problems caused by rapid industrial development shaped the emergence of environmental law in Japan, particularly during the years of high economic growth following the Second World War. In this early stage of the development of Japanese environmental law, legislative responses to environmental issues lagged behind the courts, as law-makers enacted ad hoc environmental policies generally after damage to human health and nature had already occurred.1 This was referred to as ‘fire-extinguishing legislation’ (hikeshi rippô). Two incidents of major industrial pollution are illustrative of this period: In 1890, copper slag from the Ashio copper mine polluted nearby rivers and forests, causing environmental destruction and affecting rice cultivation and fishing in the area. This incident was followed by a range of similarly severe cases of pollution (kôgai), prompting innovative jurisprudence and legislative action. In 1956, mercury poisoning (minamata-byô) marked the beginning of another slow-onset environmental disaster. Over decades, waste from a chemical plant had been discharged into Minamata bay, leading to serious impacts on human health, including neurological impairment and birth defects, and the environment.2 Public pressure, litigation, and the scientific recognition of widespread industrial pollution and prevalence of pollution-related diseases prompted the enactment of the Basic Law for Environmental Pollution Control of 1967,3 heralding the beginning of modern environmental law and policy in Japan.4 This law constituted the foundation on which the first 1 Parts of this chapter draw on T. Ichinose, ‘Umweltrecht’ in H. Baum and M. Bälz (eds.), Handbuch Japanisches Handels- und Wirtschaftsrecht (Cologne: Carl Heymanns, 2010), 1491, with additional information on local planning and impact assessment, animal rights, environmental crimes, climate change, natural disasters, renewable energy, noise, vibration, odour, waste, biosafety, torts, administrative review, and radioactive and hazardous substances, with legislation, case-law, and online resources from 2009 up to June 2018, and new literature in Japanese, English, German, French, Spanish, Italian, and Chinese. The authors would like to thank Tatsuya Amano, Hiroki Kawamura and Tamiko Nakamura for helpful comments. 2 On the history of environmental law in Japan, see J. Gresser, K. Fujikura, and A. Morishima, A., Environmental Law in Japan (Cambridge M.A.: MIT Press, 1981); Y. Abe and T. Awaji (eds.), Kankyô-hô [Environmental Law] (Tokyo: Yûhi-kaku, 4th edn., 2011), 2–17; T. Ôtsuka, Kankyô-hô BASIC [Basic Environmental Law] (Tokyo: Yûhi-kaku, 2nd edn. 2016), 5–18. For comprehensive discussions of mercury poisoning, see T. S. George, Minamata: Pollution and the Struggle for Democracy in Postwar Japan (Cambridge M.A.: Harvard East Asian Monographs, 2001); L. Nottage, Product Safety and Liability Law in Japan: From Minamata to Mad Cows (London and New York: Routledge Curzon, 2004); A. Osiander, Der Fall Minamata: Bürgerrechte und Obrigkeit in Japan nach 1945 (Munich: Iudicium, 2007); H. Kawamura, ‘The Relation Between Law and Technology in Japan: Liability for Technology-related Mass Damage in the Cases of Minamata Disease, Asbestos, and the Fukushima Daiichi Nuclear Disaster’ (2018) 30(1) Contemporary Japan 3; for recent judgments on mercury-poisoning, see JSC (8 July 2014); Kumamoto District Court (31 March 2014); Nîgata District Court (30 May 2016); Tôkyô High Court (29 November 2017); Ôsaka High Court (28 March 2018); JSC (8 September 2017); and section 12.4.4. 3 Law No. 132/1967 (Kôgai taisaku kihon-hô). 4 For recent comparisons between Japan and the United States, the United Kingdom, the EU, Germany, France, Italy, Sweden, Thailand, Malaysia, India, Indonesia, and China, respectively, see Abe and Awaji, Kankyô-hô, 73–103; M. Hautereau-Boutonnet and K. Yoshida (eds.), Regards juridiques franco-japonais sur le risque environnemental (Aix-en-Provence: Presses Universitaires d’Aix-Marseille,

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japan 255 series of substantive environmental laws was enacted until 1973.5 Strict liability rules for pollution-related health-injury were integrated into several special laws, complementing fault-based tortious liability.6 From the late 1980s, renewed pressure to address environmental challenges, partly due to the conclusion of new international environmental treaties, gave fresh impetus to law-making. Inter alia, this momentum prompted the replacement of the Basic Law for Environmental Pollution Control by the Environmental Basic Law (EBL),7 important revisions, and new enactments, including on environmental impact assessment (EIA).8 In the process, Japan transformed itself from one of the heaviest industrial polluters into a cleaner, t echnologically advanced economy with improved and well-enforced environmental laws.9 Since the turn of the millennium, legislation has developed around renewable energy and climate change,10 the green economy,11 GMOs,12 and animal rights—through a series 2017); Y. Nakanishi (ed.), Contemporary Issues in Environmental Law: The EU and Japan (Tokyo et al.: Springer, 2016); A. Ortolani, ‘Il danno ambientale ed il suo risarcimento in Italia e Giappone’ in A. Ortolani (ed.), Diritto e giustizia in Italia e in Giappone: Problemi attuali e riforme (Venice: Cafoscarina, 2015), 97; T. Kimiguchi, T. Usuki, Y. Maeda, et al., Rìběn huánjìng f ǎ gàilùn [Outline of Japanese Environmental Law] (Beijing: Zhōngguó fǎzhì chūbǎn shè, 2014); see also M. A. Schreurs, Environmental Policies in Japan, Germany, and the United States (Cambridge: Cambridge University Press, 2003); H. Krüger, ‘Stärken und Schwächen des Umweltrechts—ein Vergleich zwischen Japan und Deutschland’ (2000) 16 Ritsumeikan Law Review 159; D. Leipold (ed.), Umweltschutz und Recht in Deutschland und Japan (Heidelberg: Freiburger Rechts-und Staatswissenschaftliche Abhandlungen, 2000); R. Yoshimura, ‘Die Entwicklung der Umweltproblematik und des Umweltrechtes in Japan—Vergleich der Charakteristika mit Deutschland’ (2000) 16 Ritsumeikan Law Review 113. 5 See sections 12.3.1–6. 6 See e.g. sections 12.3.2, 5, and 12.4.1, 4, 5. 7 See section 12.2. 8 See sections 12.3.1, 4, 6, 7. 9 On Japan as an ‘environmental nation’, see R. Raddatz, ‘Japans Neuerfindung als “Umweltnation”: Nationalismus zwischen Isolation und internationaler Integration im Post-Fukushima-Japan’ in D. Chiavacci and I. Wieczorek (eds.), Japan 2012 (Munich: Iudicum, 2012), 109; on the development and characteristics of Japanese environmental law, see, in chronological order, S. Kawashima, ‘A Survey of Environmental Law and Policy in Japan’ (1994) 20 North Carolina Journal of International Law and Commercial Regulation 231; C. B. Prüfer, ‘Zur Entwicklung des japanischen Umweltrechts’ (1998) 97 Zeitschrift für vergleichende Rechtswissenschaft 496; E. Abery, ‘Environmental Policy-Making Lessons from Japan’ (1999) 4 Asia Pacific Journal of Environmental Law 379; H. Muraki, ‘Environmental Laws of Japan: Selected Environmental Issues of the 1990s and the New Millennium’ (2000) 4(4) Asia Pacific Journal of Environmental Law 317; H. Murakami, ‘Japanische Umweltpolitik: Politik, Verwaltung, Unternehmen und Bürger’ (2000) 16 Ritsumeikan Law Review 129; H. Takagi, ‘Umweltschutz regulierung durch öffentliche oder private Regulierung?’ in Z. Kitagawa et al. (eds.), Regulierung—Deregulierung—Liberalisierung: Tendenzen der Rechtsentwicklung in Deutschland und Japan zur Jahrhundertwende (Tübingen: Mohr Siebeck, 2001), 129; H. Imura and M. A. Schreurs (eds.), Environmental Policy in Japan (Cheltenham: Edward Elgar, 2005); Ichinose, ‘Umweltrecht’, at 1491–4; I. Giraudou, ‘Le droit japonais de l’environnement applicable aux entreprises’ in P. Bloch, N. Kanayama, and I. Giraudou (eds.), Le droit japonais des affaires (Brussels: Larcier, 2019). The most up to date and comprehensive textbook available is Y. Kitamura, Kankyô-hô [Environmental Law] (Tokyo: Kôbun-dô, 4th edn. 2017); overviews of Japan’s environmental laws in English are provided by the Ministry of Environment at http://www.env.go.jp/en/coop/pollution.html. 10 See sections 12.3.4, 8. 11 The 2020 New Growth Strategy promotes green innovation as a new long-term source of sustainable economic growth; see Government of Japan, The New Growth Strategy (Basic Policies): Toward a Radiant Japan, Cabinet decision (30 December 2009), translation available at: http://www.dl.ndl.go.jp/ info:ndljp/pid/3531220. 12 See section 12.3.1.

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256 julius weitzdörfer and lucy lu reimers of amendments to the Law on Welfare and Management of Animals between 2005 and 2014.13 The Environment Agency was transformed into a full-fledged Ministry of the Environment (Kankyô-shô) in 2001. Between 1995 and 2002, innovative regulations on waste management and a high degree of public compliance turned Japan into a world-leader in r ecycling.14 The enactment of four biodiversity-related laws between 1992 and 2008 coincided with environmental treaties concluded at the international level, whereas international pressure over controversial issues around whaling and fishing is still met with domestic resistance.15 Since the March 2011 earthquake, tsunami, and nuclear accident, legislation pertaining to natural disaster management,16 nuclear energy, and ionizing radiation has expanded rapidly, and pending liability suits as well as injunctions against restarting idled plants keep courts busy nationwide.17 In 2017, notable legal developments included the amendment of the chemicals regulation18 and the creation of a ‘nudge’ unit, inter alia, to induce behavioural change towards more environmental sustainability.19

12.2 Devolution of Powers While Japanese environmental law-making remains predominantly centralized, and regulation is still the result of consensus-oriented processes among political and economic elites, decentralized implementation and decision-making are increasingly influenced by bottom-up mobilization and litigation.

12.2.1 Constitutional Law The Japanese Constitution does not contain any provisions explicitly addressing the environment.20 Although legal scholars have interpreted Article 13, the right to life, liberty, 13 Law No. 105/1973 (Dôbutsu no aigo oyobi kanri ni kansuru hôritsu), translation available at: http:// www.japaneselawtranslation.go.jp; see H. Aoki, Nihon no dôbutsu-hô [Japan’s Animal Law] (Tokyo: Tôkyô Daigaku Shuppan-kai, 2009) and comparatively G. Lindemann, N. Lüdtke, and H. Matsuzaki, Die Stellung des Tieres in der Entwicklung der Tierschutzgesetzgebung in Deutschland, Japan und den USA (Oldenburg: Carl von Ossietzky Universität, 2010); K. Doi, ‘Das Tierschutzrecht in Japan. Ein Vergleich mit dem deutschen Recht und dem Modellgesetz des World Animal Net’ (2017) 44 Journal of Japanese Law 213. 14 See section 12.3.4. 15 See section 12.3.1. 16 For overviews, see S. Umeda, ‘Japan: Legal Responses to the Great East Japan Earthquake of 2011’ (2013) The Law Library of Congress, Global Legal Research Center, available at: http://www.loc.gov/law/ help/japan-earthquake/Great-East-Japan-Earthquake.pdf; critically J. Weitzdörfer and S. Beard, Disaster, Law and Social Justice in Japan: The Tsunami of Debt and Lost Homes (Munich: Iudicium, 2019); comparatively E. Hoerhager and J. Weitzdörfer, ‘From Natural Hazards to Man-made Disaster: The Protection of Disaster Victims in China and Japan’ in I. Amelung et al. (eds.), Protecting the Weak: Entangled Processes of Framing, Mobilization and Institutionalization in East Asia (London et al.: Routledge 2018) 139. 17 See sections 12.2.4, 12.4, 12.4.4, 12.4.5, and 12.5. 18 See section 12.3.6. 19 Ministry of Environment, Government of Japan, ‘The Establishment of the Nudge Unit of Japan’, News Headline (14 April 2017), available at: https://www.env.go.jp/en/headline/2314.html. 20 Constitution of Japan (Nihon-koku kenpô) of 3 November 1946, translation available at: https:// japan.kantei.go.jp/constitution_and_government_of_japan/constitution_e.html.

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japan 257 and the pursuit of happiness (kôfuku tsuikyû-ken), and Article 25, the right to maintain minimum standards of wholesome and cultured living (seizon-ken), as securing environmental protection, no such justiciable right has been acknowledged by the Japanese Supreme Court (Saikô saiban-sho, JSC).21 The hierarchy of domestic laws is clarified in Article 98(1), the relationship with international environmental treaties in Article 98(2).22

12.2.2 The Environmental Basic Law Statutory law for environmental protection is to a large extent based on the EBL,23 a framework law setting out basic principles, responsibilities, and policies for environmental protection in Japan. It defines the central aims as the protection of human health and the environment, safeguarding citizens’ enjoyment of a healthy environment (ryôkô na kankyô no kyôju), and achieving sustainable development, an objective stipulated in Article 4 and adopted from the 1992 Rio Declaration on Environment and Development. The law centralizes various environmental regulations within a common framework, which addresses both the management of negative externalities (especially pollution control) and nature conservation.24 Specifically, it articulates fundamental principles (kihon ri’nen) of environmental protection; clarifies the various responsibilities (sekimu) of the state, local public entities (chihô kôkyô dantai), corporations, and citizens; specifies the legal bases for taking environmental protection measures (kankyô hozen ni kansuru shisaku); and promotes comprehensive policies for environmental conservation, in order to ensure ‘healthy and cultured living for both the present and future generations’ (Article 1).25 According to the three fundamental principles of the EBL, environmental protection should be carried out in such a way as to preserve a healthy and productive environment for present and future generations (Article 3), to ensure sustainable development and minimize the environmental load generated by socio-economic and other activities (Article 4), and to actively promote global environmental conservation in cooperation with other countries (Article 5).26 Notably, Article 3 EBL does not guarantee an individual right to a healthy e nvironment (kankyô-ken), which would give rise to a justiciable claim.27

21 See, however, section 12.4.1. On the question of a constitutional right, see Abe and Awaji, Kankyô-hô, at 36–7; Gresser, Fujikura, and Morishima, Environmental Law in Japan, at 135 et seq.; Ichinose, ‘Umweltrecht’, at 1433, 1499; critically S. Matsui, The Constitution of Japan (Oxford and Portland, Hart Publishing, 2011), 221–30. 22 On the applicable international environmental law and Japan’s international cooperation, see Ôtsuka, Kankyô-hô, at 25 et seq., 94, 358 et seq.; Abe and Awaji, Kankyô-hô, at 40 et seq., 71–2, 109 et seq. 23 Law No. 91/1993 (Kankyô kihon-hô), translation available at: http://www.env.go.jp/en/index.html. 24 On this law, see Abe and Awaji, Kankyô-hô, at 26–8; Ôtsuka, Kankyô-hô, at 84–99; Kitamura, Kankyô-hô, at 271–88; Y. Nakanishi, ‘Introduction: The Impact of the International and European Union Environmental Law on Japanese Basic Environmental Law’ in Y. Nakanishi (ed.), Contemporary Issues in Environmental Law: The EU and Japan (Tokyo et al.: Springer, 2016), 1; C. B. Prüfer, ‘Zum Umweltrecht in Japan—gleichzeitig eine Besprechung des neuen Umwelt-Grundlagengesetzes von 1993’ (1997) 3 Journal of Japanese Law 9; Ichinose, ‘Umweltrecht’, 1504–6. 25 Ichinose, ‘Umweltrecht’, 1504–6; Ôtsuka, Kankyô-hô, at 61 et seq. 26 On the principles, see Ôtsuka, Kankyô-hô, at 34–40, 86 et seq.; Abe and Awaji, Kankyô-hô, at 26. 27 See also Ôtsuka, Kankyô-hô, at 41–51.

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258 julius weitzdörfer and lucy lu reimers While Article 4 alludes to anticipative prevention (mizen ni fusega’eru), it is ambiguous whether this can also be construed as espousing the precautionary principle.28 The law also seeks to encourage sustainable business practices through market mechanisms. According to Article 22(1), the state should provide the ‘necessary and appropriate economic assistance,’ for example, subsidies or tax incentives, to relevant economic actors. Pursuant to Article 22(2), the state should complement these incentives with appropriate and equitable economic surcharges, for example, environmental taxes. These surcharges should be based on appropriate assessments considering their effectiveness in achieving conservation aims and their impact on the economy. While Japan has implemented several market incentives, little has been done to effectively impose complementary financial deterrents on harmful economic activities.29

12.2.3 Environmental Basic Plans Each government, more specifically the Ministry of Environment, is required to formulate and implement an Environmental Basic Plan (kankyô kihon keikaku) setting out comprehensive and long-term policies for environmental conservation, Article 15.30 The Plan takes immediate legal effect upon its enactment. Furthermore, each government is obligated to establish environmental quality standards (kankyô kijun) related to air and water pollution, soil contamination, and noise (Article 16 EBL). These standards represent goals to be progressively implemented, and thus cannot be used to hold the government or its administration legally accountable.31 In addition to ordinary regional planning, when instances of serious environmental pollution do occur or are at a foreseeable risk of occurring, the Prefectural Governors responsible for the affected area are required to formulate and implement a Regional Environmental Pollution Control Program (Article 17 EBL).

12.2.4 Prefectural and Municipal Planning Under Articles 92 and 94 of the Japanese Constitution and under the Local Autonomy Law,32 Japan is administratively divided into forty-seven subnational entities (todô fuken), which form the second level of jurisdiction: forty-three prefectures (ken), one metropolis 28 Ichinose, ‘Umweltrecht’, at 1504; Ôtsuka, Kankyô-hô, at 200; Kitamura, Kankyô-hô, at 48, 126, 212, 281, 287. 29 On economic mechanisms and the polluter-pays principle, see Ôtsuka, Kankyô-hô, at 53 et seq., 70 et seq.; Abe and Awaji, Kankyô-hô, at 58–9, 64–8, 70–1, 391–2; Kitamura, Kankyô-hô, at 23, 57, 263, 449, 455, 500; Ichinose, ‘Umweltrecht’, at 1506; section 12.3.8. 30 See also Ôtsuka, Kankyô-hô, at 90; Abe and Awaji, Kankyô-hô, at 167 et seq. 31 Ichinose, ‘Umweltrecht’, at 1505. 32 Law No. 67/1947 (Chihô jichi-hô); It was substantially amended in 2017, including its residents’ litigation system (jûmin soshô seido), introducing a cap on governors’ liability in case severe disasters, see K. Uga, Chihô jiji-hô gaisetsu [Outline of the Local Autonomy Law] (Tokyo: Yûhi-kaku, 7th edn. 2017); Kitamura, Kankyô-hô, 247–249; and I. Sumikura, ‘A Brief History of Japanese Environmental Administration: A Qualified Success Story?’ (1998) 10 Journal of Environmental Law 241; cf. also Matsui, The Constitution of Japan, at 32.

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japan 259 (to, Tôkyô), two urban prefectures (fu, Ôsaka and Kyôto), and one territory (dô, Hokkai-dô). Inter alia, prefecture-level government competences cover regional planning, including prefectural natural parks, prefectural roads and waterways, and air and water quality. Should national standards not be stringent enough, governors can enact, through prefectural ordinances, more rigorous measures (uwanose jôrei) for environmental protection.33 Gradual decentralization (chihô bunken) and increased citizen participation since the 1970s have led to an expansion of the autonomy of municipalities (shiku chôson) to exercise the third level of jurisdiction, which are cities (shi), towns (machi; chô), villages (mura; son), and wards (ku). This includes the transfer of the competences to oversee EIAs and urban planning (toshi-keikaku) in addition to matters such as waste, by means of the enactment and enforcement of ordinances (jôrei).34 However, the basic frameworks set for local governments (informally: chihô jichi-tai), that is, the local public entities (chihô kôkyô dantai) of prefectural and municipal level, do not grant leeway in all areas, and financially they remain dependent on funding from the central government. Nevertheless, the local level continues to be the major forum for (NIMBY-style) protest and debates surrounding controversial zoning and siting decisions on airports, dams, landfills, and recently on renewable energy developments, the resettlement of coastal communities, and on restarting idled nuclear power stations after the 2011 triple disaster.35

12.3 Structure and Substance of Environmental Law Japanese environmental legislation comprises laws, usually specified by a cabinet order and an enforcement order, which both set out general environmental policies and address specific environmental problems. The following chronological overview demonstrates that 33 See Ôtsuka, Kankyô-hô, at 95; Abe and Awaji, Kankyô-hô, at 27, 41–8, 52 et seq.; Kitamura, Kankyô-hô, at 86, 92, 128–9, 288, 349, 384, 418. 34 See N. Okubo, ‘The Development of the Japanese Legal System for Public Participation in Land Use and Environmental Matters’ (2016) 52 Land Use Policy 492; R. Avila Tàpies, ‘Planificación urbana y protagonismo ciudadano: La idea de la planificación participativa del machizukuri japonés’ (2008) XIII(773) Revista Bibliográfica de Geográfia y Ciencas Sociales, available at: http://www.ub.edu/geocrit/b3w-773. htm; N. Kadomatsu, ‘Recent Development of Decentralization, Deregulation and Citizens’ Participation in Japanese City Planning Law’ (2006) 40 Kobe University Law Review 1. 35 T. Koike, ‘Genpatsu sai-kadô to chihô jichi-tai no kadai: Hinan keikaku, anzen kyôtei, zei-zaisei sochi’ [The Problem of Nuclear Restarts and Regional Self-governance Bodies: Evacuation Planning, Safety Agreements, Financial and Fiscal Measures] (2016) 911 Chôsa to Jôhô [NDL Issue Briefs] 1; cf. generally D. P. Aldrich, Site Fights: Divisive Facilities and Civil Society in Japan and the West (Ithaca and London: Cornell University Press, 2008), 70, 95, 119; M. Abe, ‘Mobilizing Law Against Local Governments: A Recent Trend in Public Law Litigation in Japan’ in H. Scheiber, and L. Mayali, (eds.), Emerging Concepts of Rights in Japanese Law (Berkeley: University of California at Berkeley—Robbins Collection, 2007), 119; S. H. Lesbirel, NIMBY Politics in Japan: Energy Siting and the Management of Environmental Conflict (Ithaca and London: Cornell University Press, 1998); J. Broadbent, Environmental Politics in Japan: Networks of Power and Protest (Cambridge et al: Cambridge University Press, 1998), 112, 134; for recent cases, see sections 12.3.3, 8, and section 12.4.

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260 julius weitzdörfer and lucy lu reimers protection by object is more prevalent than by instrument, and overall, protection of public health is often more stringent than protection of the natural environment.

12.3.1 Nature Conservation Protected areas and the regime for biodiversity and wildlife protection have been dispersed across various laws enacted since 1950, especially as awareness of biodiversity loss increased in the 1990s. The Law on the Protection of Cultural Properties,36 under which certain animals and plants of scientific value can be designated as natural monuments (ten’nen kinen butsu) is one of the earliest nature conservation laws. Any activities of potential impact on the designated species or their habitats require authorization from the Commissioner of Cultural Affairs (bunka-chô chôkan).37 The Natural Parks Law38 protects areas of natural scenic beauty, promotes their utilization, and ensures the conservation and sustainable use of biodiversity (Article 1). The law distinguishes between three types of parks, national parks (kokuritsu kôen), quasi-national parks (kokutei kôen), and prefectural natural parks (todô fuken-ritsu shizen kôen); zoning systems regulate the permitted activities within them (Article 2). Land is not set aside for conservation, but merely designated protective status, leaving private land ownership intact and often allowing for the continuation of economic activities (e.g. agricultural cultivation). Consequently, parkland is often intermixed with private land, partly causing inadequate conservation.39 While the former laws were designed for human purposes, for example, recreational and economic use, the important Nature Conservation Law40 embodies a less anthropocentric approach, focusing primarily on ecosystem protection and sustainable natural resource management. It also distinguishes between three types of areas: wilderness areas (gensei shizen kankyô hozen chi’iki), which offer the highest level of protection, nature conservation areas (shizen kankyô hozen chi’iki), and prefectural nature conservation areas (todô fuken shizen kankyô hozen chi’iki). In contrast to national parks, nature conservation areas must comprise of at least 1,000 hectares of land under public ownership.41

36 Law No. 214/1950 (Bunka-zai hogo-hô), translation available at: http://www.japaneselawtranslation. go.jp. 37 On this law, see Abe and Awaji, Kankyô-hô, at 350; Ichinose, ‘Umweltrecht’, at 1521; on the related case law, see T. Awaji, T. Ôtsuka, and Y. Kitamura (eds.), Kankyô-hô hanrei hyakusen dai-2-han [Selected Environmental Law Precedents, 2nd edn.] (2011) 206 Bessatsu Jurisuto [Jurist Special Issue] 180, at 196–201. 38 Law No. 161/1957 (Shizen kôen-hô), translation available at: http://www.japaneselawtranslation. go.jp. 39 See Kitamura, Kankyô-hô, at 542–81; Abe and Awaji, Kankyô-hô, at 325 et seq; Ichinose, ‘Umweltrecht’, at 1520; L. Hiwasaki, ‘Toward Sustainable Management of National Parks in Japan: Securing Local Community and Stakeholder Participation’ (2005) 35 Environmental Management 753; on related caselaw, see Awaji, Ôtsuka, and Kitamura, Kankyô-hô hanrei hyakusen, at 180 et seq. and e.g. Ôsaka High Court (25 April 2014). 40 Law No. 85/1972 (Shizen kankyô hozen-hô). 41 See Ôtsuka, Kankyô-hô, at 313 et seq.; Abe and Awaji, Kankyô-hô, at 317 et seq.; Ichinose, Umweltrecht, at 1520–1; for a more recent case, see e.g. Sendai District Court (26 December 2013).

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japan 261 The Law for the Conservation of Endangered Species of Wild Fauna and Flora42 prohibits the trading, hunting, capture, killing, or injuring of any species listed as endangered (exceptions can be granted by special permit for some cases). Endangered species are divided into species indigenous to Japan, and international endangered species, inter alia listed in Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora.43 Laws on particular environments include the Act on the Protection of Fishery Resources,44 the Urban Green Space Act,45 the Act on Preservation and Control of Living Marine Resources,46 and the Nature Revitalisation Promotion Act.47 The Law Concerning the Protection and Control of Wild Birds and Mammals, and Hunting Management,48 revised and renamed in 2014, regulates hunting by prescribing wildlife protection plans and setting out protected areas (chôjû hogo-ku). It restricts the capture and collection of mammal and avian wildlife and eggs to licensed hunting, scientific research, forestry activities, and conservation. The Invasive Alien Species Law49 aims to prevent their adverse effects on ecosystems, human safety, and agriculture. To this end, it strictly prohibits import, breeding, transport, and release of designated invasive alien species. Importing undesignated alien species (mi-hantei gairai seibutsu) must be notified in advance, whereupon the Minister decides whether to grant permission based on a certain cabinet ordinance. The Basic Law on Biodiversity50 contains fundamental principles for conservation and sustainable use of biodiversity in accordance with the EBL and the Convention on Biodiversity. Inter alia, it requires National Biodiversity Strategies in consultation with civil society, detailing basic principles, targets, and policies (Article 11).51 The Law on the Conservation and Sustainable Use of Biological Diversity through Regulations on the Use of Living Modified Organisms (LMOs) only came into force in 2016 and was amended in 2017.52 It is to ensure that the use of LMOs has no adverse effects posing 42 Law No. 75/1992 (Zetsumetsu no osore no aru yasei dô-shokubutsu no shu no hozon ni kansuru hôritsu), translation available at: http://www.japaneselawtranslation.go.jp. 43 Ichinose, ‘Umweltrecht’, at 1521; on current conservation issues and possible future instruments, asking how habitats can be protected despite lack of environmental legal thinking, see Y. Abe, Kankyô-hô sôron to shizen, kaihin kankyô [General Environmental Law and Natural and Coastal Environments] (Tokyo: Shinzan-sha, 2017). 44 Law No. 313/1951 (Suisan shigen hogo-hô), translation available at: http://www.japaneselawtranslation. go.jp. 45 Law No. 72/1963 (Toshi ryokuchi-hô). 46 Law No. 77/1996 (Kaiyô seibutsu shigen no hozon oyobi kanri ni kansuru hôritsu), translation available at: http://www.japaneselawtranslation.go.jp. 47 Law No. 148/2002 (Shizen saisei suishin-hô). 48 Law No. 88/2002 (Chôjû no hogo oyobi kanri narabi ni shuryô no tekisei-ka ni kansuru hôritsu). 49 Law No. 78/2004 (Tokutei gairai seibutsu ni yoru seitai-kei-tô ni kakaru higai no bôshi ni kansuru hôritsu), translation available at: https://www.env.go.jp/en/index.html; see T. Mito and T. Uesugi, ‘Invasive Alien Species in Japan: The Status Quo and the New Regulation for Prevention of their Adverse Effects’ (2004) 8(2) Global Environmental Research 171. 50 Law No. 58/2008 (Seibutsu tayô-sei kihon-hô), translation available at: http://www. japaneselawtranslation.go.jp. 51 Translation available at: http://www.env.go.jp/en/nature/biodiv/nsj/index.html; on all three aforementioned laws, see Ichinose, ‘Umweltrecht’, at 1520–2. 52 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), translation together with two cabinet orders available at: http://www. japaneselawtranslation.go.jp.

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262 julius weitzdörfer and lucy lu reimers risks to the preservation of wild fauna or flora, involving expert and public consultations. Currently, a first application for a modified silk worm is pending.

12.3.2 Air Quality The Atmospheric Pollution Prevention Law established a centralized system for air q uality.53 It regulates smoke and soot emissions (bai’en), particle pollution (funjin), hazardous atmospheric pollutants (yûgai taiki osen busshitsu), and exhaust emissions from vehicles (jidô-sha hai-gasu) (Article 2), and it is exemplary for the way in which other problems are regulated.54 The law seeks to control harmful emissions from industrial workplaces, such as factories or demolition sites. To this end, the Ministry of Environment sets national emission standards (haishutsu kijun), which can be complemented by additional caps on total emissions (sôryô kisei) of sulphur oxides and nitrogen oxides for designated areas (Article 5-2). Moreover, governors may set emission standards that are stricter than the nationally prescribed acceptability limits (Article 4). Any person intending to construct a new facility or industrial plant must submit a notification (todokede) to the prefectural governor detailing the plans (Article 6). If the prefectural governor finds that the facility is likely to exceed permissible standards, the governor may either reject the plans or order them to be revised, and it is prohibited to proceed in the meantime (Articles 9, 10), de facto operating like a permit system (kyoka-sei).55 Compliance with the standards is determined by direct measurement of concentrations at the facility (nôdo kisei), except for sulphur oxide, measured taking into account the chimney height and the classification of the surrounding area (Article 3). Operators failing to comply are subject to fines. Should an actively operating facility continuously fail to comply with standards, the governor may order its operation to be improved (kaizen meirei) or suspended (ichiji teishi meirei) (Article 14). Operators of facilities that refuse to comply with such orders are subject to punitive sanctions. Article 25 establishes strict liability of o perators for emissions-related health injuries.56 Regarding dust particle pollution, the law distinguishes between ordinary (ippan funjin) and specified particulates (tokutei funjin) harmful to human health, designated by cabinet order (Article 2(9)). A facility generating ordinary pollution must be registered, and is subject to technical requirements (kôzô kisei), for example, dust capture or wet spray systems. Specific standards and permissible concentration limits apply for facilities emitting specified particulates (e.g. asbestos). Although Articles 18–20 state that policies and other measures 53 Law No. 97/1968 (Taiki osen bôshi-hô), translation available at: http://www.japaneselawtranslation. go.jp. 54 On this law, see Ôtsuka, Kankyô-hô, at 138, 154 et seq.; Abe and Awaji, Kankyô-hô, at 189 et seq.; Kitamura, Kankyô-hô, at 374–402; Ichinose, ‘Umweltrecht’, at 1509–10; K. Hiyama and S. Kato, ‘Legal Regulations for Urban Ventilation’ in K. Hiyama and S. Kato (eds.), Ventilating Cities: Air-Flow Criteria for Healthy and Comfortable Urban Living (Heidelberg: Springer, 2012), 135; K. Iwata and T. Arimura, ‘Economic Analysis of a Japanese Air Pollution Regulation’ (2018) RFF Discussion Paper, available at: http://www.rff.org/RFF/Documents/RFF-DP-08-15.pdf; on the case-law of atmospheric pollution, see Awaji, Ôtsuka and Kitamura, Kankyô-hô hanrei hyakusen, at 4–43. 55 Ichinose, ‘Umweltrecht’, at 1509–10. 56 See e.g. Ôsaka High Court (6 March 2014) and also section 12.4.1.

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japan 263 addressing hazardous air pollutants should be implemented with the aim of preventing future damage to human health, no binding limits for the release of atmospheric pollutants have been set, ostensibly due to a lack of scientific knowledge about their long-term effects.57 Competency to regulate exhaust emissions is divided: The Minister of Environment prescribes the permissible limits for direct exhaust emissions, while the Minister of Land, Infrastructure, Transport and Tourism prescribes permissible exhaust levels for car manufacturers (Article 19). Additional limits on carbon monoxide, hydrocarbons, nitrogen oxides, lead, and particulate matter are set pursuant to the Law Concerning Special Measures for Total Emission Reduction of Nitrogen Oxides from Automobiles in Specified Areas (The Automotive NOx and PM Law), banning the most polluting gasoline-engines from certain areas, but not diesel engines.58 There is a separate Offensive Odour Control Law.59

12.3.3 Noise Protection Litigation and alternative dispute resolution (ADR) related to noise occurs frequently in densely populated Japan, including from airports, roads and expressways, Karaoke businesses, and recently kindergartens.60 The Noise Regulation Law of 1968,61 regulates noise emission from factories, construction sites, and traffic, setting maximum permissible levels (Article 1). Prefectural governors have the responsibility to designate certain residential areas, school-, and hospital zones as protected, and subjecting specified facilities in those areas to noise control standards. Should these prove insufficient, competent authorities of cities, towns, or villages may establish more stringent regulations (Article 4). Before construction commences on any new noise-emitting facilities within designated areas, they have to be registered with the prefectural governor (Article 6). The governor may recommend measures for noise abatement (Article 9). Should the noise level of an already operational facility exceed permissible levels in a designated area, the prefectural governor may recommend (mandatory) abatement methods or structural adjustments (Article 12). Non-compliance is subject to punitive sanctions (Articles 29, 30). With regard to construction work and to motor vehicles, permissible 57 Ichinose, ‘Umweltrecht’, at 1510; on asbestos-related liability, see also Kawamura, ‘The Relation between Law and Technology’, at 19. 58 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), translation available at: http:// www.env.go.jp/en/laws/air/amobile.html; see also Ichinose, ‘Umweltrecht’, at 1510. 59 Law No. 91/1971 (Akushû bôshi-hô), translation available at: http://www.env.go.jp/en/laws/air/odor/ index.html. 60 On cases of noise emissions from such facilities, see Awaji, Ôtsuka and Kitamura, Kankyô-hô hanrei hyakusen, at 82–111; M. D. West, ‘The Resolution of Karaoke Disputes: The Calculus of Institutions and Social Capital’ (2002) 28(2) Journal of Japanese Studies 301; for recent cases involving daycare centres, see Kobe District Court (9 February 2017); JSC (19 December 2017); against airports, see Naha District Court (11 June 2015); Tôkyô High Court (30 July 2015); Naha District Court (23 February 2017); JSC (8 December 2016); against a wind farm, see Nagoya District Court (22 April 2015). 61 Law No. 98/1968 (Sô’on kisei-hô), translation available at: http://www.env.go.jp/en/laws/air/noise/ index.html; see also Abe and Awaji, Kankyô-hô, at 221 et seq.; Ichinose, Umweltrecht, at 1500, 1513.

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264 julius weitzdörfer and lucy lu reimers noise levels may be set by the Director General of the Environment Agency (Articles 15, 16), while the Minister of Transport sets certain standards directly for car manufacturers (Article 16). Should motor vehicle noise exceed them, the prefectural governor may request the implementation of additional traffic control measures (Article 17). As the law’s scope does not cover trains and aircrafts, various regulations, such as ministerial ordinances, standards and notices, as generally in Japanese administrative law, play an important role (cf. Article 16 EBL). They include high-speed train (shin-kansen) noise regulations from 1975, last amended in 2000, the Law Concerning the Prevention of Damage caused by Aircraft Noise in Areas Around Public Airports,62 and the Law Concerning the Improvement, etc. of Living Environments around Defence Facilities, respectively.63 There is a separate Vibration Regulation Law, last amended in 2014.64

12.3.4 Waste Management Tensions between resource scarcity and high levels of production and exports have resulted in a strong regulatory objective to promote effective recovery, recycling, and conservation of resources.65 The Waste Management and Public Cleansing Law66 regulates the proper disposal of industrial waste (sangyô haiki-butsu), solid household waste (ippan haiki- butsu), and specially controlled municipal solid waste (toxic, explosive, infectious, or otherwise harmful waste). Businesses are primarily responsible for appropriately managing and disposing of waste produced by their activities (Article 3). Strict regulations apply to the transport, disposal and recycling of industrial waste, including step-by-step permitting obligations (Article 12-3). Unlawful disposal of industrial waste is punishable by law and subject to special legislation on its removal.67 The Law for the Promotion of Effective Utilization of Resources68 establishes an innovative regulatory framework that promotes the long-term use of products by consumers as 62 Law No. 110/1967 (Kôkyô-yô hiko-jô shûhen ni okeru kôkû-ki sô’on ni yoru shôgai no bôshi-tô ni kansuru hôritsu). 63 Law No. 101/1974 (Bôei shisetsu shûhen no seikatsu kankyô no seibi-tô ni kansuru hôritsu shikōrei); see also Ichinose, ‘Umweltrecht’, 1513. 64 Law No. 74/1976 (Shindô kisei-hô), translation at https://www.env.go.jp/en/laws/air/vibration/. 65 For a detailed commentary on the provisions and cases of Japanese waste and recycling law, see Y. Abe, Haiki-butsu hôsei no kenkyû [Waste Legislation Research] (Tokyo: Shinzan-sha, 2017); Ôtsuka, Kankyô-hô, at 228–312, 490 et seq.; Abe and Awaji, Kankyô-hô, at 267 et seq.; Kitamura, Kankyô-hô, at 441–541; see also F.G. Bennett, ‘Secondhand Japan: Used Goods Regulation 1645–Present (Parts 1 and 2)’ (2006) 21 and 22 Journal of Japanese Law 37 and 128; on the related case-law, see Awaji, Ôtsuka, and Kitamura, Kankyô-hô hanrei hyakusen, at 114–63. 66 Law No. 137/1970 (Haiki-butsu no shori oyobi seisô ni kansuru hôritsu), translation together with one cabinet order available at: https://www.env.go.jp/en/index.html. 67 Ichinose, Umweltrecht, at 1516–17; K. Aoki and J. Cioffi, ‘Poles Apart: Industrial Waste Management Regulation and Enforcement in the United States and Japan’ in R. A. Kagan and L. Axelrad (eds.), Regulatory Encounters: Multinational Corporations and American Adversarial Legalism (Berkeley: University of California Press, 2000), 33. 68 Law No. 48/1991 (Shigen no yûkô na riyô no sokushin ni kansuru hôritsu), translation available at http://www.japaneselawtranslation.go.jp.

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japan 265 well as efficient use and conservation of resources by the private sector. Resource-intensive industries carry specific obligations to save resources (the pulp and paper industry and the iron industry), reutilize resources (the glass container manufacturing industry), or manufacture products with a longer life span (the computer and personal appliances industry).69 While the Law for the Control of Export, Import, etc. of Specified Hazardous Waste, etc. implements the Basel Convention, numerous special laws regulate interim and long-term storage of radioactive waste.70 Recycling of ordinary packaging material is regulated by the Act on the Promotion of Sorted Collection and Recycling of Containers and Packaging,71 dividing responsibility between corporations and municipalities, the latter of which bear significant costs. Recovery and recycling of end-of-life home appliances are regulated separately in the Specified Home-use Appliance Recycling Law.72 It obliges retailers to take back home appliances for a collection and recycling fee payable by the consumer. Manufacturers and importers are obliged to recycle appliances and to reuse raw materials. However, as consumers shoulder the costs of recycling, illegal dumping is incentivized.73 The Basic Law for Establishing a Sound Material-Cycle Society provides a legal framework for transitioning to a circular economy (junkan-gata shakai).74 It aims to prevent waste, promote recycling (through reuse, material recycling, and thermal recycling) and to ensure proper waste disposal (Articles 5–7) and operationalizes the polluter-pays principle through extended producer responsibility (kakudai seisan-sha seki’nin) (Article 11(2) and (3)). The government is required to prepare a Basic Plan for Establishing a Sound Material-Cycle Society, setting out basic policies and measures for this purpose (Article 15).75 Other recycling-related laws include the Law Concerning the Promotion, etc. of Procurement, etc. of Eco-Friendly Goods and Services by the State and other Entities,76 last amended in 2015, the Law Concerning the Recycling, etc. of Materials Relating to Building and Construction,77 the Law Concerning the Promotion of Recycling, etc. of Cyclical Food Resources,78 and the Law Concerning the Recycling, etc. of End-of-Life Vehicles.79

69 Ichinose, ‘Umweltrecht’, at 1518; M. Dernauer and T. Ichinose, ‘Das japanische Recyclingrecht’ (2003) 14 Journal of Japanese Law 53. 70 Law No. 108/1992 (Tokutei yûgai haiki-butsu-tô no yushutsu-nyû-tô no kisei ni kansuru hôritsu), translation available at: http://www.env.go.jp/en/laws/recycle/13.pdf; see section 12.5. 71 Law No. 112/1995 (Yôki hôsô ni kakaru bunbetsu shûshû oyobi sai-shôhin-ka no sokushin-tô ni kansuru hôritsu), translation available at: http://www.japaneselawtranslation.go.jp; Ichinose, ‘Umweltrecht’, at 1518. 72 Law No. 97/1998 (Tokutei katei-yô kiki sai-shôhin-ka-hô). 73 Ichinose, ‘Umweltrecht’, at 1518. 74 Law No. 110/2000 (Junkan-gata shakai keisei suishin kihon-hô), translation available at: http://www. env.go.jp/en/laws/recycle/12.pdf. 75 Ichinose, ‘Umweltrecht’, at 1516. 76 Law No. 100/2000 (Kuni-tô ni yoru kankyô buppin-tô no chôtatsu no suishin-tô ni kansuru hôritsu), translation available at: http://www.japaneselawtranslation.go.jp. 77 Law No. 104/2000 (Kensetsu kôji ni kakaru shizai no sai-shigenka-tô ni kansuru hôritsu). 78 Law No. 116/2000 (Shokuhin junkan shigen no saisei riyô-tô no sokushin ni kansuru hôritsu). 79 Law No. 87/2002 (Shiyô-zumi jidô-sha no sai-shigen-ka-tô ni kansuru hôritsu); Ichinose, ‘Umweltrecht’, at 1519.

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12.3.5 Water Quality The Water Pollution Prevention Law80 aims to safeguard public water (kôkyô yô sui’iki) and groundwater systems. Public waters include rivers, ponds, ports, coastal waters, and navigational waters, but not sewage systems (Article 2(1)). Polluting factories and businesses emitting liquid effluent and wastewater are classified as ‘specified facilities’ and subject to concentration-based effluent control standards, set by the Ministry of Environment (Article 12-3). In case of non-compliance, operators are subject to punitive sanctions and clean-up measures (Article 14-3). Notably, effluent control standards for the protection of public health (kenkô kômoku) are applied nationally to all emitting facilities, while standards for the protection of the environment (seikatsu kankyô kômoku), for example, PH-levels and biochemical oxygen demand, are applied only to facilities emitting more than a certain amount of wastewater. The law also limits the total permissible level of sewage discharge into coastal waters and includes emission standards, permitting, sanctions, and strict liability.81 Finally, there is a dedicated Law Concerning Special Measures for the Conservation of Lake Water Quality.82

12.3.6 Hazardous Substances Contamination of agricultural land, agricultural produce, and associated health impacts have been a matter of concern since the Ashio case and the outbreak of the itai-itai disease in the 1960s.83 Contamination also occurred as a result of the 2011 tsunami, and affects the wider Fukushima area today, where radiation safety levels of food and soil have created challenges of scientific uncertainty.84 To prevent soil pollution and to establish decontamination plans for the areas already affected by cadmium, copper or arson, the Agricultural Land Soil Pollution Prevention Law was enacted.85 Procedures were added by the Soil Contamination Countermeasures Law,86 revised in 2009 and 2017, setting up a framework for the protection of industrial and metropolitan areas by identifying and regulating the handling of harmful substances 80 Law No. 138/1970 (Suishitu odaku bôshi-hô), translation available at: http://www. japaneselawtranslation.go.jp. 81 On this law, including recent amendments, see Ôtsuka, Kankyô-hô, at 169 et seq.; Abe and Awaji, Kankyô-hô, at 205 et seq.; Kitamura, Kankyô-hô, at 339–73; Ichinose, ‘Umweltrecht’, at 1511; on related case-law, see Awaji, Ôtsuka, and Kitamura, Kankyô-hô hanrei hyakusen, at 44–79. 82 Law No. 61/1984 (Koshô suishitsu hozen tokubetsu sochi-hô). 83 See section 12.1; on the whole area of law dealing with hazardous substances, see Abe and Awaji, Kankyô-hô, at 260–7. 84 See section 12.5; and T. Ôtsuka et al., Tokushû: Jun’nô-gata risuku seigyo no shin tenkai [Special Issue: New Developments of Adaptive Risk Control] (2017) 7 Kankyô-hô Kenkyû [Environmental Law Research]. 85 Law No. 139/1970 (Nôyô-chi no dojô no osen bôshi-tô ni kansuru hôritsu), translation available: at http://www.env.go.jp/en/laws/water/aglaw.pdf. 86 Law No. 53/2002 (Dojô osen taisaku-hô), translation available at: http://www.env.go.jp/en/laws/ water/sccact.pdf.

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japan 267 (Article 1). When specified facilities are decommissioned, the landowner is legally required to investigate possible soil contamination. Such an investigation can also be mandated on an ad hoc basis through special cabinet order (Article 3). Should soil contamination be found (according to certain threshold levels specified by Cabinet order), the area is publicly declared contaminated and the governor may order the landowner or the polluter to take clean-up measures (Articles 6 and 7).87 The Law on the Evaluation of Chemical Substances and Regulation of their Manufacture88 established the system for reviewing and classifying new chemicals according to whether they pose a risk to human health or the environment (Article 1), if they are not covered by substance control or pharmaceuticals law, small quantities, or otherwise exempt. Production and import of substances classified as hazardous due to their persistency, bio-accumulativeness, or toxicity upon continuous exposure (Article 2) are subject to registration and permitting processes (Article 5-3 et seq., 9, 12). New chemicals must be notified to the Minister of Health, Labour and Welfare (Kôsei rôdô daijin), the Minister of Economy, Trade and Industry (Keizai sangyô daijin), and the Minister of the Environment (Kankyô daijin). The relevant Ministry then determines how the new chemical will be classified (Article 4), but the permitting requirements for hazardous chemicals are considered so stringent that legal production or import is almost impossible. A 2009 amendment expanded the scope to cover a broader range of chemicals and introduced additional obligations to ensure consistency with the Stockholm Convention on Persistent Organic Pollutants, among other things.89 By a last amendment in 2017, the quantities of certain chemicals permissible without full assessment was increased by basing them on the level of harmful emissions (Article 5-5), a new category of toxic substances was introduced (Article 2-8), and supervisory measures available for chemicals on the market were expanded (Articles 4-4, 4-6, 8-2, 39). Based on the Law Concerning Reporting of Releases to the Environment of Specific Chemical Substances and Promoting Improvements in Their Management,90 a national Pollutant Release and Transfer Register (kankyô osen busshitsu idô tôroku seido) was established. Businesses handling specified chemicals must submit data on estimated quantities of chemicals released during manufacturing, use or transport, to be compiled into the publicly accessible register (Articles 5, 10). To protect commercially valuable technologies or production methods, businesses may request for their records to remain confidential (Article 6).91 Additional laws, like the Law Concerning the Protection of the Ozone Layer through the Control of Specified Substances and other Measures,92 the Law Concerning Special 87 On both laws, see H. Kobayashi, ‘Japanese Law for Remediation of Soil Contamination’ (2002) 7(2) Asia Pacific Journal of Environmental Law 25; Ichinose, ‘Umweltrecht’, at 1511–12; on the 2017 reversion, see Kitamura, Kankyô-hô, at 403–40, particularly 440. 88 Law No. 117/1973 (Kagaku busshitsu no shinsa oyobi seizô-tô no kisei ni kansuru hôritsu), together with various ordinances, translation available at https://www.env.go.jp/en/laws/chemi/cscl/CSCL_law.pdf. 89 Ichinose, ‘Umweltrecht’, at 1514. 90 Law No. 86/1999 (Tokutei kagaku busshitsu no kankyô e no haishutsu-ryô no ha’aku-tô oyobi kanri no kaizen no sokushin ni kansuru hôritsu), translation available at: http://www.env.go.jp/en/laws/chemi/ prtr/index.html. 91 On the regulatory tool of transparency and on this law, see Ôtsuka, Kankyô-hô, at 80 et seq., 217–26; Abe and Awaji, Kankyô-hô, at 63; Ichinose, ‘Umweltrecht’, at 1514–15. 92 Law No. 53/1988 (Tokutei busshitsu no kisei-tô ni yoru ozon-sô no hogo ni kansuru hôritsu), translation available at: http://www.env.go.jp/en/laws/global/ozone2.pdf.

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268 julius weitzdörfer and lucy lu reimers Measures against Dioxin,93 and the Law on Asbestos Health Damage Relief 94 set acceptable levels by environmental quality and emission standards, including tolerable daily intakes (taiyô ichi-nichi sesshu-ryô).

12.3.7 Impact Assessment After decades of deliberations and interim solutions, the Environmental Impact Assessment Law was passed in 1997, and significantly amended in 2011 and 2013, inter alia to introduce exemptions for relocation and recovery projects after the triple disaster.95 Article 2 specifies thirteen types of large-scale projects that are subject to an EIA process, such as the construction of roads, dams, airports, or the establishment of waste disposal sites. The process is divided into three phases: screening (dai-nishu jigyô no hantei), scoping (hôhô-sho no sakusei), and assessment (kankyô eikyô hyôka).96 In essence, large-scale infrastructure projects are classified as Class 1 or Class 2 projects, and whereas the former require an EIA, the decision whether an EIA is required for the latter is made on a case-by case basis during screening.97 In the scoping phase, the project’s proponent submits a scoping document describing the proposed method of the EIA (hôhôsho) to the prefecture, municipalities, towns, and villages potentially affected for public review and written comments (iken-sho) (Articles 5–11).98 Notably, public hearings are not required at this stage, and while the project proponent should make an effort to consult public opinion, this is a ‘best efforts’ obligation, and not an obligation of result.99 In the assessment phase, the proponent prepares a draft Environmental Impact Statement (EIS) to be, once again, submitted to the relevant prefecture and municipalities and made available for public comment. The proponent must organize explanatory public meetings to make the potentially affected population aware of the contents of the EIS (Article 17). Aiming for a higher degree of public involvement, which is criticized as still insufficient in practice despite the revisions, many local governments have enacted their own EIA rules, 93 Law No. 105/1999 (Daiokishin-rui taisaku tokubetsu sochi-hô), translation available at: http://www. japaneselawtranslation.go.jp. 94 Law No. 4/2006 (Ishiwata ni yoru kenkô higai no kyûsai ni kansuru hôritsu), translation available at: http://www.japaneselawtranslation.go.jp. 95 Law No. 81/1997 (Kankyô eikyô hyôka-hô), translation available at: https://www.env.go.jp/en/index. html. 96 On this law, see Ôtsuka, Kankyô-hô, at 91, 102–37, 477 et seq.; Abe and Awaji, Kankyô-hô, at 174-86; Kitamura, Kankyô-hô, at 299–338; Ichinose, ‘Umweltrecht’, at 1506–8; for recent cases and issues of EIA, including of renewable energy projects, see T. Ôtsuka (ed.), Tokushû: Kankyô eikyô hyôka-hô [Special Issue: Environmental Impact Assessment Law] (2017) 6 Kankyô-hô Kenkyû [Environmental Law Research]; see also Y. Ohkura, ‘Environmental Impact Assessment in Japan: Evolution of the System and Critical Appraisal of the Environmental Impact Assessment Law/1997’ (2000) 4(4) Asia Pacific Journal of Environmental Law 349; section 12.5. For one of the more recent cases, see JSC (29 July 2014). 97 In taking the decision, the relevant government authority considers comments from the prefectural governor, who may, but does not have to, consult relevant municipalities, environmental councils, or local residents; see Kitamura, Kankyô-hô, at 307; H. Kurasaka, ‘Japanese Environmental Impact Assessment Law: Before and After’ (2001) 27 Built Environment 16. 98 Kitamura, Kankyô-hô, at 314; Ichinose, ‘Umweltrecht’, at 1507. 99 Okubo, ‘The Development of the Japanese Legal System for Public Participation’, at 492.

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japan 269 imposing public hearings before the final round of written comments.100 The EIS is then sent to the Ministry of Environment for comment, and is finally submitted to the competent authority, which may request a revision of the EIS based on the comments received. The final EIS must be made public and provides the basis for the competent authority to accept or reject the project in question. In coming to its decision, the competent authority must also assess whether the project gives proper consideration to environmental protection (Article 38; ôdan jôkô). Based on this provision, the project can be rejected even if the regulation according to which the project was initially permitted is complied with or does not require certain environmental conditions to be met. Only after the EIS is public, can the proponent begin implementing the project (Article 31).

12.3.8 Climate Change As the world’s sixth largest emitter of CO2, Japan has supported climate protection efforts under the United Nations Framework Convention on Climate Change (UNFCCC) from the outset. Under the Kyoto Protocol, Japan committed to cutting its GHG emissions by 6 per cent (compared to the 1990 baseline) until 2012, and although actual emissions increased, Japan managed to meet the target by purchasing credits abroad and offsetting emissions from forest carbon sinks. At Copenhagen, Japan pledged a 25 per cent reduction by 2020 (vs. 1990), a plan predicated on the expansion of nuclear capacity. However, seismicityrelated safety concerns and increased legal and political resistance made this impossible. Consequently, the 25 per cent target was adjusted to a mere 3.8 per cent, amounting to an actual increase compared to the 1990 baseline. Despite this setback, Japan continues to place climate protection high on its law-making agenda.101 The Law on Promotion of Global Warming Countermeasures102 established a domestic legal framework by ‘defining the responsibilities of the central government, local governments, businesses and citizens to take measures to cope with global warming and establishing a basic policy on measures to cope with global warming’ (Article 1). However, even revisions to ensure alignment with Japan’s commitments under the Kyoto Protocol in 2002 contained only few concrete measures.103 Notably, the Law obliges large corporations to report annual emissions to the competent Ministry, and established a national Emission Trading Scheme (ETS; Article 3(4)). Since 2013, the merged J-Credit ETS is in operation, including joint crediting and carbon offsetting features, etc. Further revisions were implemented in 2016 to accommodate the Paris Agreement,104 before the 2018 Climate Change 100 Ibid., at 495. 101 T. Kuramochi, ‘Review of Energy and Climate Policy Developments in Japan before and after Fukushima’ (2015) 43 Renewable and Sustainable Energy Reviews 1320; on the remaining issues of Japan’s climate law, see Kitamura, Kankyô-hô, at 605–7. 102 Law No. 117/1998 (Chikyû ondan-ka taisaku no suishin ni kansuru hôritsu), translation available at: http://www.japaneselawtranslation.go.jp. 103 On this law, see Ôtsuka, Kankyô-hô, at 368 et seq.; Abe and Awaji, Kankyô-hô, at 369 et seq.; Kitamura, Kankyô-hô, at 584-607; Ichinose, ‘Umweltrecht’, at 1522; J. Mochizuki, ‘Assessing the Designs and Effectiveness of Japan’s Emissions Trading Scheme’ (2011) 11 Climate Policy 1337. 104 Ministry of the Environment, ‘Market Mechanisms’ (2015), available at: http://www.env.go.jp/en/ earth/ets/mkt_mech.html; H. Kanagawa, ‘Environment & Climate Change Law 2018: Japan’ (2018)

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270 julius weitzdörfer and lucy lu reimers Adaptation Act finally obligated all levels of government and business operators to introduce more concrete measures to promote the suppression of greenhouse gas emissions (Articles 1, 4, 5).105 The Act on Special Measures Concerning Procurement of Electricity from Renewable Energy Sources by Electricity Utilities de facto obliges electricity suppliers to connect wind-, solar-, water- (but not tidal-), biomass-, and geothermal power plants to their grids and introduced feed-in-tariffs, which can be passed on to end-consumers.106 Despite legal and practical hurdles, including ambiguities in the law itself, unsuitable EIA and real estate law, a shortage of solar panels, incompatible grids, delayed construction and grid-access, preferential rates for renewables of up to 48 Yen/kWh attracted applications for a total capacity of 33 GW within two years, a bonanza of solar energy development, so that rates were slashed in 2014.107 Further amendments in 2016 coincided with the revolutionary liberalization of Japan’s electricity retail markets, opening the former ten regional monopolies to hundreds of new competitors. Other measures include the Global Warming Countermeasures Tax, a national carbon tax on coal, natural gas, and oil, phased in between 2012 and 2016 as a surtax on the upstream Petroleum and Coal Tax. Its revenues support additional GHG reduction measures of energy conservation, building renewable energy capacity, and developing innovative technologies.108 Finally, public procurement policies under the Act on Promotion of Contracts of the State and Other Entities, Which Show Consideration for Reduction of Emissions of Greenhouse Gases, etc. were revised in 2018, also to bring renewable energy closer to the target share of 20 per cent in 2020.109

12.4 Implementation Framework Japanese law grants individuals the right to bring several environmental claims, including civil claims for liability in tort, state liability claims, civil and administrative injunctions, and remedies to challenge administrative acts. Another element of enforcement is the important role of environmental criminal law (kankyô keiji-hô), extending far beyond the

International Comparative Legal Guides, available at: https://iclg.com/practice-areas/environment-andclimate-change-laws-and-regulations/japan. 105 Law No. 50/2018 (Kikô hendô tekiô-hô), translation available at: www.japaneselawtranslation.go.jp. 106 Law No. 108/2011 (Denki jigyô-sha ni yoru saisei kanô enerugî denki no chôtatsu ni kansuru tokubetsu sochi-hô), translation available at: http://www.japaneselawtranslation.go.jp. 107 Ôtsuka, Kankyô-hô, at 506; Kitamura, Kankyô-hô, at 601–2; M. Tanaka, ‘Veränderte Rechtslage bei erneuerbaren Energien in Japan’ (2014) 5 Japanmarkt 30; for recent injunction cases against a solarplants, see Ôita District Court (11 November 2016) and Mito District Court (15 June 2018); against a wind farm, see Nagoya District Court (22 April 2015). 108 Introduced by a tax reform through Laws No. 16-9/2012; Ministry of Environment Japan (2012) ‘Details on the Carbon Tax (Tax for Climate Change Mitigation)’, available at: https://www.env.go.jp/en/ policy/tax/env-tax/20121001a_dct.pdf; Kitamura, Kankyô-hô, at 602–3. 109 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), translation available at: http://www.japaneselawtranslation.go.jp.

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japan 271 Law for Punishment of Crimes Relating to Environmental Pollution Pertaining to Human Health,110 both as a regulatory tool and in courts.111 Although injunctive claims are rarely successful, Japan’s courts are relatively open to awarding damages and have been proactive in shaping the development of substantive and procedural environmental law.112 This applies across the older and younger pollution cases113 and the recent injunctions against nuclear power stations.114 Although Japan does not have an environmental class-action system (yet),115 citizens are increasingly assertive regarding their rights, also using quasi-judicial settlement systems in matters pertaining to environmental damage or compensation for pollution-related health conditions.

12.4.1 Civil Liability in Tort Article 709 of the Civil Code allows compensation claims for environmental damage resulting from an unlawful act (fuhô kôi) if four main cumulative conditions are established:116 fault, violation of a right or a legally protected interest, causality, and damage, for all of which the plaintiff carries the burden of proof.117 110 Law No. 142/1970 (Hito no kenkô ni kakaru kôgai hanzai no shobatsu ni kansuru hôritsu), translation available at: http://www.japaneselawtranslation.go.jp. 111 Abe and Awaji, Kankyô-hô, at 50–1, 291–315; Ôtsuka, Kankyô-hô, at 463–7; Kitamura, Kankyô-hô, at 147, 183, 343, 362, 377, 396, 499; for criminal cases on industrial accidents, see Awaji, Ôtsuka, and Kitamura, Kankyô-hô hanrei hyakusen, at 250–5; comparatively, see G. Lennartz, ‘Environmental Crimes: Questions Regarding Regulatory Attempts by the European Union—With References to Japan’ in J. Westhoff and G. Lennartz (eds.), Ach, So Ist Das! Liber Amicorum: Prof. Dr. Toichiro Kigawa Zum 80. Geburtstag (Hamburg: Deutsch-Japanische Juristenvereinigung, 2005), 193; Y. Qu, ‘Rìběn dí gōnghài xíngfǎ yǔ huánjìng xíngfǎ’ [Japan ‘s Public Injury Law and Environmental Criminal Law] (2005) 3 Journal of East China University of Political Science and Law 96; R. G. Kondrat, ‘Punishing and Preventing Pollution in Japan: Is American-style Criminal Enforcement the Solution?’ (2000) 9(2) Pacific Rim Law & Policy Journal 379; B. S. Cho, ‘Cuestiones de causalidad y autoría en el derecho penal del medio ambiente coreano y japonés desde la perspectiva del derecho comparado’ (1999) 4 Revista Penal 42; see also n. 115. 112 See also Y. Sagami, ‘Der Umweltschutz und die Rolle der Rechtsprechung’ (2000) 16 Ritsumeikan Law Review 145. 113 K. Fujikura, ‘Litigation, Administrative Relief, and Political Settlement for Pollution Victim Compensation’ in D. H. Foote (ed.), Law in Japan: A Turning Point (Seattle and London: University of Washington Press, 2007), 384. The most important cases are summarized in Awaji, Ôtsuka, and Kitamura, Kankyô-hô hanrei hyakusen; the most recent cases are collected in Ningen Kankyô Mondai Kenkyû-kai [Study Group on Human Environmental Issues] (ed.), Saikin no jûyô kankyô hanrei [Recent Important Environmental Precedents] (2017) 42 Kankyô-hô Kenkyû [Environmental Law Journal]; for earlier cases, see Gresser, Fujikura, and Morishima, Environmental Law in Japan, 139–223; cf. also n. 38. 114 See e.g. JSC (13 July 2017); JSC (30 March 2017); Ôsaka High Court (28 March 2017); Ôtsuka District Court (09 March 2016); Kagoshima District Court (22 April 2015); Fukui District Court (14 April 2015); Saga District Court (20 March 2015); Fukui District Court (18 March 2015); Fukui District Court (21 May 2014); Awaji, Ôtsuka, and Kitamura, Kankyô-hô hanrei hyakusen, at 202–13; Kawamura, ‘The Relation between Law and Technology’, at 21–3. 115 On the discussion, see T. Shimamura, ‘Kankyô-hô ni okeru dantai soshô’ [Group Litigation in Environmental Law] (2015) 12 Ronkyû Jurisuto [Quarterly Jurist] 119–30; Kitamura, Kankyô-hô, at 221, 241. 116 Laws No. 89/1896 and 9/1898 (Minpô), translation available at: www.japaneselawtranslation.go.jp. 117 On this provision, see Ôtsuka, Kankyô-hô, at 394 et seq.; Kitamura, Kankyô-hô, at 198 et seq.; Ichinose, ‘Umweltrecht’, at 1495–7; E. Matsumoto, ‘Tort Law in Japan’ in M. Bussani and A. J. Sebok,

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272 julius weitzdörfer and lucy lu reimers Fault comprises intent (ko’i), though rarely discussed in environmental cases, and negligence (kashitsu), which implies a duty to prevent damage based on foreseeability (yoken kanô-sei) and preventability (kekka kaihi kanô-sei). Case-law clarifies how these should be interpreted in environmental cases: courts generally uphold a strict duty of care (kôdo no chûi gimu) when cases involve human health or fatal injuries.118 The violation of a right or a legally protected interest (kenri ri’eki shingai) can relate to personal injury, damage to property or impairment of the right to privacy (puraibashî-ken, an element of the general right of personality derived from Article 13 Japanese Constitution, jinkaku-ken), the right to sunshine (nisshô-ken), and the right to an undisturbed view (chôbô-ken). Especially in immission-related cases of nuisance (seikatsu bôgai), the defendant’s behaviour is assessed by establishing a specific tolerability level (ju’nin gendo), balancing both parties’ interests (hikaku kôryô), while considering the public interest, the nature and extent of the damage, and other circumstances.119 High standards apply for proving adequate causation (sôtô inga kankei) between the violation of the right or interest and the occurrence of damage (songai). To remedy the problem that this is often difficult to establish scientifically, various solutions have been proposed: In the Nîgata Minamata case cited above, causality was assumed where the injured party persuasively established the cause of the disease, the process of contamination, and the defendant was unable to prove that no emission of the harmful substance had occurred (monzen riron). Alternative solutions are to accept legal causation based on epidemiological methods (ekigaku-teki inga kankei) where diseases can only be attributed to one kind of cause, such as in the itai-itai cases mentioned above, or to accept that, where a highly probable (kôdo no gaizen-sei) connection cannot be proved, liability is assumed, while the degree of probability should temper the amount of damages awarded.120

12.4.2 Civil Injunctive Remedies Civil injunctive relief (sashitome), while not explicitly regulated in the Civil Code, can be sought from polluters if personal or property rights have been violated. Whether a personal right to life, physical or mental health (Article 13 Japanese Constitution), or a property right (Articles 197, 198, 206 Civil Code) was violated is, again, determined according to the theory of tolerability levels. Where injunctive relief is sought, the threshold of unacceptable levels of pollution is generally higher than in cases concerning compensation claims, as injunctions Comparative Tort Law: Global Perspectives (Cheltenham, Northampton: Edward Elgar, 2015), 359–84; H. Oda, Japanese Law (Oxford: Oxford University Press, 2009), 180–92; Kawamura, ‘The Relation Between Law and Technology’, at 8 et seq. 118 Nîgata District Court (29 September 1971) and Kumamoto District Court (20 March 1973) overturned the restrictive standard of ‘adequate facilities’ (sôtô na setsubi) of the Imperial JSC (22 December 1916); recent cases are listed in n. 3; special no-fault liability regimes apply for air- and water-pollution and for nuclear radiation, see sections 12.3.2, 5, 12.4.4, and 12.5. 119 There is a high degree of theoretical complexity and doctrinal evolution in the precedents of subsequent generations of Japanese environmental pollution cases, differing in litigation on environmental harm and mere nuisance. Within the general theory of Japanese tort law, the old doctrine of unlawfulness (ihô-sei) has now widely come to be examined as a element of fault, rather than as a separate element.; on the former doctrine, see Ichinose, ‘Umweltrecht’, at 1495–6. 120 Ibid., at 1496–7; on alleviations of the burden of proof, see Kitamura, Kankyô-hô, at 80, 204, 216, 231, 510.

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japan 273 usually entail greater costs for defendants than compensation. Although courts are very hesitant to grant injunctions based on the right to a healthy environment, where healthrelated harm has already occurred, courts are less reluctant to do so, presuming tolerability levels must have been exceeded.121

12.4.3 Administrative Trials and Pre-trial Review Article 3 of the Administrative Case Litigation Law establishes the right to challenge unlawful administrative acts, for example, permits for environmentally harmful activities or facilities.122 Such acts are unlawful if they deviate from the legislative statute or if administrative authority abused discretionary powers by failure to exercise reasonable (gôri-teki) judgment or by significant procedural mistakes, for example, during an EIA. Lodging the administrative claim will not have suspensory effect, but a successful completion can have the effect of an injunction. Standing to challenge an administrative decision depends on the claimant demonstrating a subjective interest in the matter (Article 9(1)). The JSC has construed this interest broadly, considering applicable law beyond the act immediately in question.123 This fed into substantial amendments in 2004, directly relevant to standing for environmental suits (Article 9-2) and environmental injunctions (Article 3-7). The fully overhauled Administrative Complaint Review Act and its pre-trial review system (gyôsei fufuku shinsa) came into force in 2016 with the purpose of increasing the neutrality of decisions, also increasing the statutory period for appeals to 90 days.124

12.4.4 State Liability Article 17 of the Japanese Constitution establishes the right to bring claims against the state or public entities.125 On this basis, requirements for state liability are specified in Articles 1(1), 2, and 5 of the State Liability Law (classified as administrative law), namely that the authorities’ behaviour was unlawful.126 Article 1 states: ‘When a governmental official in a position to wield governmental powers of the State or of a public body has, in the course of performing his duties, illegally inflicted losses upon another person either intentionally or negligently, the State or the public body concerned shall be liable to compensate such losses’. Importantly, this also applies if the 121 On the law of civil injunctions, see Ôtsuka, Kankyô-hô, at 394 et seq.; Kitamura, Kankyô-hô, at 211 et seq., 220 et seq.; Ichinose, ‘Umweltrecht’, at 1499–1500; for cases, see e.g. JSC (7 July 1995); and nn. 38, 115. 122 Law No. 139/1962 (Gyôsei jiken soshô-hô), translation available at: http://www.japaneselawtranslation. go.jp. 123 On administrative law remedies, see Ôtsuka, Kankyô-hô, at 431 et seq.; Kitamura, Kankyô-hô, at 222 et seq.; Ichinose, ‘Umweltrecht’, at 1500–2; for case-law, see, inter alia, the challenge to the construction of the Monju nuclear power plant, JSC (22 September 1992); JSC (29 October 1992); JSC (7 December 2005); and nn. 38, 119. 124 Law No. 68/2014 (Gyôsei fufuku shinsa-hô), replacing Law No. 160/1962, translation available at: http://www.japaneselawtranslation.go.jp; see T. Hitomi, ‘Revision of the Administrative Appeal Act’ (2014) 34 Waseda Bulletin of Comparative Law 117. 125 Law No. 125/1947 (Kokka baishô-hô), translation available at: http://www.japaneselawtranslation. go.jp; on the various entities, see sections 12.2.1, 4. 126 On this law, see Ôtsuka, Kankyô-hô, at 459 et seq.; Kitamura, Kankyô-hô, at 244 et seq.; Ichinose, ‘Umweltrecht’, at 1497–9.

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274 julius weitzdörfer and lucy lu reimers government failed to exercise regulatory power against third parties to take necessary preventative measures (kisei kengen no fu-kôshi), for example, by setting and enforcing environmental regulations, although the executive is usually granted a wide margin of appreciation. Therefore, it is difficult to ascertain when non-exercise of regulatory power is deemed unlawful, but state liability by failure to act was famously confirmed in the Minamata cases, for the state’s and prefecture’s inaction against the polluting company: Authority should have been exercised in a manner timely and appropriate to protect the life and health of people in areas at risk of contamination.127 Pursuant to Article 2, failure to properly maintain public facilities (setchi kanri no kashi) can also trigger state liability, particularly when the establishment or management of facilities does not meet the applicable safety standards (tsûjô yûsubeki anzen-sei), for example, by failing to appropriately regulate traffic on national roads. This has been extended to situations where failure to properly maintain public facilities merely caused psychological harm, for example, by an airport.128 In 2014, the JSC also declared the failure to require exhaust ventilation systems for asbestos production plants illegal under Article 1.129 As a result, both lawsuits related to asbestos as well as to mercury poisoning have been cumulatively successful under civil and under state liability law, while the question of mutual exclusiveness of civil and state liability for nuclear damage remains unresolved as of early 2018.130

12.4.5 Environmental ADR The Law on Settlement of Environmental Pollution Disputes131 creates an extrajudicial system for prompt and appropriate disputes settlement.132 Environmental ADR includes mediation (assen), conciliation (chôtei), formal arbitration (chûsai), meaning that both parties waive their right to go to court, and informal arbitration (saitei), which does not necessarily require both parties’ consent. Various institutions at different levels of government have been tasked with facilitating extrajudicial remedies and shorter, cheaper, and more flexible procedures as well as the participation of experts make them attractive options: The Environmental Dispute Coordination Commission (Kôgai-tô Chôsei I’in-kai) settles important disputes of national or trans-regional scale, while Pollution Review Boards (Kôgai Shinsa-kai) do so at the prefectural level.133 127 JSC (15 October 2004); n. 3; Kawamura, ‘The Relation between Law and Technology’, at 17–19. 128 JSC (16 December 1981); JSC (15 October 2004); Ichinose, ‘Umweltrecht’, at 1498–9. 129 JSC (9 October 2014); Kawamura, ‘The Relation between Law and Technology’, at 19–21. 130 Affirmed for the first time by Maebashi District Court (17 March 2017); although contradicting judgments and opinions exist. The question is expected to be taken to the JSC soon; but see already J. Weitzdörfer, ‘Liability for Nuclear Damages under Japanese Law—An Overview of Legal Problems Arising from the Fukushima Daiichi Nuclear Accident’ in S. Butt et al. (eds.), Asia-Pacific Disaster Management: Socio-Legal Perspectives (Berlin and Heidelberg: Springer, 2014), 119, at 132–3. 131 Law No. 108/1970 (Kôgai funsô shori-hô), translation available at: http://www.japaneselawtranslation. go.jp. 132 On this law, see Kitamura, Kankyô-hô, at 252–62; Ichinose, ‘Umweltrecht’, at 1502–3; Gresser, Fujikura, and Morishima, Environmental Law in Japan, at 325–47; for recent cases, see e.g. Tokyo District Court (10 September 2014); JSC (5 March 2015). 133 On environmental ADR more broadly, see Ôtsuka, Kankyô-hô, at 468 et seq.; Kitamura, Kankyô-hô, at 251–67.

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japan 275 The Pollution-Related Health Damage Compensation Law134 provides an administrative, non-judicial system for the compensation of certified victims of environmental harm (kôgai-byô kanja). It is to ensure prompt and just compensation (hoshô kyûfu) for these specific victims suffering from severe illness due to air or water pollution. Compensation is conditioned on the designation of affected areas, in which the victims live or have lived, and of a specific pollution-related disease, of which the victims show symptoms, and awarded upon application to the relevant administrative authority. Generally, authorities tasked with distributing facilitated compensation under this law apply stricter criteria than courts.135 Arguably, this is also a downside of similar out-of-court arrangements made to deal with the over 2.5 million compensation claims lodged in relation to the 2011 Fukushima accident, for which special lump sums and heads of damage have been specified in guidelines drafted by experts.136

12.5 Selected Problem: Nuclear Energy Law as Environmental Law Traditionally, the scope of application of Japanese environmental law excluded nuclear energy law and radiation protection—just as it is, for example, distinct from laws on cultural heritage.137 This was achieved by a separate Nuclear Energy Basic Law,138 a corresponding exclusion in Article 13 EBL, and analogous, explicit exclusion provisions across all major environmental laws.139 However, legal scholars started to question this separation as an unsystematic, unjustified regulatory privilege for the nuclear sector over other industrial activities after the Fukushima accident.140 Indeed, in the wake of the accident and its massive impact on the human and natural environment, this ‘nuclear exceptionalism’ did not only lead to doctrinal frictions difficult to resolve in practice, but also to legal discrimination of nuclear evacuees, whose rights were, at least in some respects, weaker than in cases of other technologies, substances, or pollutants, as the exclusion provisions barred rights relating to soil decontamination, product liability, and EIA.141 134 Law No. 111/1973 (Kôgai kenkô higai no hoshô-tô ni kansuru hôritsu), translation available at: http:// www.japaneselawtranslation.go.jp;. 135 On this law, see H. Nishimura, How to Conquer Air Pollution: A Japanese Experience (Amsterdam: Elsevier, 1989), 262; Gresser, Fujikura, and Morishima, Environmental Law in Japan, at 290–319; Ichinose, ‘Umweltrecht’, at 1503. 136 Weitzdörfer, ‘Liability for Nuclear Damages under Japanese Law’, at 126–8. 137 See section 12.3.1. 138 Law No. 186/1955 (Genshi-ryoku kihon-hô), translation available at: http://www. japaneselawtranslation.go.jp. 139 See Art. 8 Basic Law for Environmental Pollution Control; Art. 52(12) Environmental Impact Assessment Law; Art. 23(1) Water Pollution Control Law; Art. 27(1) Air Pollution Control Law; Art. 2(1) Soil Contamination Countermeasures Law; Art. 2(1) Waste Management and Public Cleansing Law. 140 On the definition and scope of Japanese environmental law, as well as on the separation of nuclear law, see Ôtsuka, Kankyô-hô, at 23 et seq.; critically Abe and Awaji, Kankyô-hô, at ii, 32–6, 256–60; Kitamura, Kankyô-hô, at 288–9. 141 For an overview of these issues, see Weitzdörfer, ‘Liability for Nuclear Damages under Japanese Law’, at 127, 129; and e.g. section 12.4.4.

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276 julius weitzdörfer and lucy lu reimers In response, Japan abolished Article 13 EBL, removed the exclusion of radioactive substances from waste law, and newly included the ‘conservation of the environment’ in the objectives of its nuclear law in 2012. Furthermore, nuclear exceptions in EIA, water-, and atmospheric pollution law were removed in 2013.142 As a result, theoretically and practically, nuclear power and radioactive substances now fall under environmental law, and thus, virtually overnight, a vast body of laws and regulations has been added to the corpus of Japanese environmental law. In conclusion, this chapter not only encourages the environmental comparatist to further examine the legal lessons from this largest-ever case of environmental liability in particular,143 but also to question the (partial) ‘nuclear exceptionalism’ still prevalent in environmental jurisdictions worldwide. This is not only a question of level playing fields between nuclear and other sources of energy: If nuclear power seeks to sell itself as a solution to environmental problems, it cannot any longer refuse to expose itself to the scrutiny of environmental law.

12.6 Acknowledgements This publication was made possible through the support of a grant from Templeton World Charity Foundation. The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of Templeton World Charity Foundation.

12.7 Selected Bibliography Abe, Y. and Awaji, T. (eds.), Kankyô-hô [Environmental Law] (Tokyo: Yûhi-kaku, 4th edn. 2011). Awaji, T., Ôtsuka, T., and Kitamura, Y. (eds.), Kankyô-hô hanrei hyakusen dai-2-han [Selected Environmental Law Precedents, 2nd edn.] (2011) 206 Bessatsu Jurisuto [Jurist Special Issue]. Giraudou, I., ‘Le droit japonais de l'environnement applicable aux entreprises’ in P. Bloch, N. Kanayama, and I. Giraudou (eds.), Le droit japonais des affaires (Brussels: Larcier, 2019). Hautereau-Boutonnet, M. and Yoshida, K. (eds.), Regards juridiques franco-japonais sur le risque environnemental (Aix-en-Provence: Presses Universitaires d’Aix-Marseille, 2017). Ichinose, T., ‘Umweltrecht’ in H. Baum and M. Bälz (eds.), Handbuch Japanisches Handels- und Wirtschaftsrecht (Cologne: Carl Heymanns, 2010), 1498–522. Kitamura, Y., Kankyô-hô [Environmental Law] (Tokyo: Kôbun-dô, 4th edn. 2017). Nakanishi, Y. (ed.), Contemporary Issues in Environmental Law: The EU and Japan (Tokyo et al.: Springer, 2016). Ningen Kankyô Mondai Kenkyû-kai [Study Group on Human Environmental Issues] (ed.), Saikin no jûyô kankyô hanrei [Recent Important Environmental Precedents] (2017) 42 Kankyô-hô Kenkyû [Environmental Law Journal]. Ôtsuka, T., Kankyô-hô BASIC [Basic Environmental Law] (Tokyo: Yûhi-kaku, 2nd edn. 2016). Weitzdörfer, J. and K. C. Lauta (eds.), Fukushima and the Law (Cambridge: Cambridge University Press, 2019).

142 For details, see Kitamura, Kankyô-hô, at 289, 514–5; and n. 148. 143 T. Awaji, R. Yoshimura, and M. Yokemoto (eds.), Fukushima genpatsu jiko baishô no kenkyû [Studies on the Compensation for the Accident of the Nuclear Power Plant in Fukushima] (Tokyo: Nihon Hyôron-sha, 2015); J. Weitzdörfer and K. C. Lauta (eds.), Fukushima and the Law (Cambridge: Cambridge University Press, 2019).

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chapter 13

M ex ico Marisol Anglés Hernández and Montserrat Rovalo Otero

13.1 Overview

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13.2 Allocation of Powers

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13.3 Structure and Substance of Environmental Law

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13.4 Implementation Framework

288

13.5 Conclusion

294

13.6 Select Bibliography

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13.2.1 Sustainable Development 13.2.2 Human Rights and the ‘Constitutionality Block’ 13.2.3 Human Right to a Healthy Environment 13.2.4 Human Right to Water and Sanitation 13.2.5 Collective Rights and Access to Natural Resources 13.3.1 Air Pollution and Climate Change 13.3.1.1 Air Pollution 13.3.1.2 Climate Change 13.3.2 Water 13.3.3 Biological Diversity 13.3.3.1 Protected Areas 13.3.3.2 Species 13.3.3.3 Genetic Resources 13.3.4 Waste

13.4.1 Access to Environmental Information 13.4.2 Access to Environmental Participation 13.4.3 Access to Environmental Justice 13.4.3.1 Environmental Liability 13.4.3.2 Class Actions 13.4.3.3 Collective Amparo 13.4.3.4 Environmental Criminal Justice

279 279 280 281 281

283 283 283 284 285 285 286 287 287 288 289 291 291 292 292 293

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13.1 Overview Environmental law constitutes not only one of the most recent areas of law developed in Mexico, but also one of the most complex due to the different and concurrent powers and duties of each level of government. Despite numerous legal instruments regulating environmental matters in the country, the judiciary has only now begun to play a significant role in the solution of environmental disputes and the development of environmental law. This chapter provides an overview of Mexican environmental law, by focusing on the constitutional foundations, the core of its substantive law, and the main features of its administrative and judicial implementation. Mexico is a federal democratic republic, in which three orders of government converge, namely the federal, state, and municipal levels of government. Its Constitution adopts the classic form of dual federalism in which the powers that are not expressly bestowed on federal officials are reserved to the states. In addition, the Federal Congress is also entitled to enact legislation to establish the concurrence of competencies, that is, the distribution of faculties between the federal, state, and municipal governments, on different subject matters. On environmental matters, the General Act on Ecological Balance and Environmental Protection (LGEEPA) establishes the framework of concurrent competencies of the three levels of government.1 Each level is in charge of formulating and conducting environmental policy, and applying instruments of environmental policy, as well as protecting the environment, and preserving and restoring ecological balance within their jurisdiction. At the federal level, the Ministry of the Environment and Natural Resources (SEMARNAT) is the authority in charge of planning and implementing national policy on environment and natural resources; regulating, administrating, and promoting the sustainable use of natural resources in relation to federal actions; incentivizing compliance; and enforcing regulation.2 To achieve these functions, SEMARNAT oversees decentralized bodies that administer national waters, forests and natural protected areas; two national research institutes that focus on water technology and ecology and climate change; and a federal attorney (PROFEPA) in charge of supervising, inspecting, investigating, and sanctioning non-compliance of environmental regulation. As a result of the recent energy reform, the Agency of Industrial Safety and Environmental Protection of the Hydrocarbons Sector (ASEA) was created. In a regressive fashion, ASEA now primarily controls the functions of regulating, issuing authorizations, and supervising and sanctioning projects and activities of the hydrocarbon sector, which were bestowed separately before to SEMARNAT and PROFEPA.3

13.2 Allocation of Powers Since its adoption in 1917, Constitutional Article 27 subordinated private property rights to the general interest of the population. Lands, waters, and forests within the limits of the 1 LGEEPA, Mexico, DOF, 28 January 1988. 2 Article 32 Bis LOAPF, Mexico, DOF, 29 December 1976, amendments of 18 July 2016. 3 LASEA, Mexico, DOF, 11 August 2014.

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mexico 279 national territory belong originally to the nation, which can constitute private property and impose on it the modalities dictated by public interest, as well as regulations imposed for social benefit on the use of natural elements susceptible to appropriation. As in other countries, the initial approach to environmental protection focused on health issues. In this sense, the federal Constitution was amended in 1971 to empower Congress to review measures adopted by the General Sanitation Council regarding environmental pollution and to enact laws on environmental protection. However, the Constitution has been amended several times in the last four decades so as to include further environmental considerations, including the right to a healthy environment.

13.2.1 Sustainable Development The notion of sustainable development found support in Mexico, for the first time, in the LGEEPA, but it was not until 1999 that the concept was incorporated in the text of the Constitution, when it became part of the so-called economic chapter of the federal Constitution in Article 25. That same article was amended in 2013 to foster links between economic development and environmental protection, in the following terms: Social and private sector enterprises shall be supported and fostered under criteria of social equity, productivity and sustainability, subject to public interest and to the utilization of productive resources for general welfare, preserving them and the environment.4

According to this article, which embodies the constitutional basis for national planning, the state shall assume the duty of including in its development policies the necessary measures for the sustainable utilization of natural resources. On this basis, the three orders of government have developed urban, economic, and environmental programmes and actions to incorporate environmental protection as a component of sustainability.5 In addition, authorities shall observe a series of environmental principles envisaged in the LGEEPA, such as the principle of intergenerational equity, which ‘materialize’ the principle of sustainable development.

13.2.2 Human Rights and the ‘Constitutionality Block’ As of 10 June 2011, Mexico placed human rights at the highest level of priority, through the constitutional amendment to Article 1, which now reads: In the United Mexican States, all individuals shall be entitled to the human rights recognized by this Constitution and the international treaties to which the Mexican State is a party, as well as to the guarantees for the protection of these rights . . .

Such amendment set a clear cornerstone for the protection of human rights, as it required all authorities to promote, respect, protect, and fulfil human rights within the framework of 4 CPEUM, DOF, amendments of 28 June 1999 and 5 June 2013. 5 Case Law P./J. 38/2011, SJFG, 9th Period, Book I, Vol. 1, October 2011, 288.

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280 marisol anglés hernandéz and montserrat rovalo otero their actions. It also granted the broadest protection to any person within the national territory through the pro-personae principle, and by requiring human rights norms to be interpreted in accordance to the Constitution and international human rights treaties. This hermeneutical technique matches constitutional rights and freedoms with values, principles, and norms contained in international treaties, the jurisprudence of international tribunals, resolutions and general comments, as well as recommendations and consultative opinions of international organizations, in order to reach a higher efficiency and protection of human rights.6 Given the transcendence of this constitutional shift, the plenary chamber of the Supreme Court of the Nation (SCJN) has pronounced on how to incorporate international human rights treaties into the national legal framework. By virtue of Article 133 of the federal Constitution, Mexico is a monist country that directly incorporates international treaties. For this reason, international treaties may be directly invoked before authorities and judges. The SCJN has established that international treaties are hierarchically situated below the Constitution but above general, federal, and local acts.7 However, in 2014 the SCJN stated that all human rights norms included in international treaties should be granted constitutional status. Furthermore, it considered that the decisions of the Inter-American Court of Human Rights shall be binding on judges in Mexico even when they are decisions related to cases to which Mexico is not a party.8 Given the importance of human rights in Mexico, particularly after the constitutional reform just mentioned, the protection of the environment has gained momentum, both substantively and procedurally, through the protection of human rights and the recognition of the right to a healthy environment.

13.2.3 Human Right to a Healthy Environment Environmental protection is a fundamental premise for human beings to live in a dignified manner. In this sense, the enforcement of the right to a healthy environment cannot be detached from the right to life and health. For this reason, its implementation constitutes a priority of the state. As part of the constitutionalization process of the right to a healthy environment that became increasingly influential worldwide during the mid-twentieth century, in 1999 Mexico amended Article 4 of the federal Constitution to include the right of all persons to an ‘adequate’ environment for their development and well-being. Despite the laconic character of this amendment, it motivated thinking about public policies in the economic, social, and environment realms aimed at reaching a balance between economic development and environmental protection that could fulfil the needs of current generations, as well as hand down an equal or better environmental heritage to future generations. 6 E. Ferrer, ‘Interpretación conforme y control difuso de convencionalidad. El nuevo paradigma para el juez mexicano’ in M. Carbonell and P. Salazar (eds.), La reforma constitucional de derechos humanos: un nuevo paradigma (Mexico: UNAM-IIJ, 2011), 339–429, at 358. 7 Case P. LXXVII/99, SJFG, 9th Period, November 1999 and Case P.IX/2007, SJFG, 9th Period, April 2007. 8 Case Law P./J. 20/2014, SJFG, 10th Period, 25 April 2014, and Case Law P./J. 21/2014, SJFG, 10th Period, 25 April 2014.

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mexico 281 However, direct intervention of the state was missing, as well as adequate procedural mechanisms that could render the mentioned right effective. As a result, on 8 February 2012 the Constitution was amended again in order to acknowledge that every person has the right to a healthy environment for their development and well-being; that the state shall guarantee the respect of this right; and that the damage and deterioration of the e nvironment generates the liability of those who cause it. This new provision binds the state as the main guarantor of the right in question, and provides the basis for a special law, the Federal Law of Environmental Responsibility, analysed in section 13.4.

13.2.4 Human Right to Water and Sanitation Access to water is indispensable. The Mexican Congress acknowledged this in 2012, when it added a paragraph to Article 4 of the federal Constitution to recognize that ‘every person has the right of access, provision and sanitation of water for personal and domestic use in a sufficient, healthy, acceptable and affordable manner’. In this regard, the Mexican federal judiciary has held that water is a limited natural resource and a public good that is fundamental to life and health, and that the human right to water is indispensable to live in dignity and a precondition for the realization of other human rights.9 The constitutional reform established the duty of the state to guarantee this right. It also mandated the enactment of an act defining the bases, subsidies, and modalities for the equitable and sustainable access and use of freshwater resources, and establishing the participation of the Federation, local governments, and municipalities, as well as the participation of citizens for the achievement of such purposes. Even though several bills were presented in Congress, the privatization debate hindered the adoption of any of them. Nevertheless, the constitutional recognition of the right to water has motivated the quest for its protection through federal courts.10

13.2.5 Collective Rights and Access to Natural Resources Mexico is characterized by its great cultural diversity, with sixty-two ethnic groups. However, it was not until 1992 that the federal Constitution recognized the multicultural composition of the nation in Article 2. It recognizes the right of indigenous peoples and communities to have preferential access to natural resources located in the sites inhabited or occupied by them. However, it excludes access to strategic resources and conditions the exercise of such a right to respecting other forms of property ownership and land possession—such as private property—as well as third parties’ rights.11 Such restriction arguably implies the contravention of the 1989 Indigenous and Tribal Peoples Convention (Convention 169), to which Mexico is a party, as it affects the rights of indigenous peoples to autonomy, self-determination, and self-development.

9 Case I.9o.P.69 P., SJFG, 10th Period, Book 12, November 2014, 2928. 10 Nonconformity appeal 49/2014, SCJN, 1st Chamber, 26 November 2014. 11 CPEUM, DOF, amendment of 14 August 2001.

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13.3 Structure and Substance of Environmental Law As explained in section 13.1, the Mexican legal system utilizes framework acts that distribute powers among different levels of government. These are named General Acts and are enacted by the Federal Congress on the basis of a constitutional provision. However, the Federal Congress can also pass pieces of legislation applicable at the federal level that may develop in detail the rules of a certain issue regulated in a framework act in general terms. In addition, the Executive Power may issue different administrative binding legal instruments, including regulations, guidelines, and technical standards (Mexican Official Norms—NOM), which complement the normative system. The first environmental act enacted in Mexico dates back to 1971 when the Federal Act to Prevent and Control Pollution was passed. In 1982 the Federal Act for Environmental Protection was adopted leading to the enactment of the LGEEPA on 1988, which was comprehensively amended in 1996. The LGEEPA, as the framework act on environmental matters, seeks to regulate the environment in an integrated way by establishing the main objectives, principles, and instruments of environmental regulation and policy; distributing powers among different government levels; setting the basic rules to protect and preserve the environment and its elements as well as to prevent, control, and reduce pollution; and establishing the main features of access rights. Article 15 LGEEPA establishes a catalogue of twenty environmental principles that the executive power at the federal, state, and municipal levels must observe, such as the p rinciple of co-responsibility in the protection of the environment; the polluter-pays principle embodied in a positive and negative form; the prevention and no-harm principles; ecosystems as common heritage; and cooperation of civil society. Despite proposals from NGOs, the precautionary principle has not yet been included in the relevant articles—as opposed to its incorporation in legal instruments related to climate change and biosecurity—so that it is not generally taken into account in the application and interpretation of norms regulating other environmental issues.12 Environmental policy—that is, the group of strategies and actions designed to achieve environmental management13—is based on several instruments provided by the LGEEPA and detailed in further regulations. Policy instruments aimed at preventing environmental harm were favoured considering that repairing environmental damage is very costly and sometimes it is not even possible.14 In this sense, environmental regulation has progressed from trying to control pollution and environmental damage to trying to prevent them in the first place. However, it is not yet a regulation of a precautionary character.

12 Interestingly, the precautionary principle has recently been used by a federal appeals court to interpret the right to a healthy environment enshrined in Art. 4 of the Constitution, by relying on principle 15 of the Rio Declaration. Case XXVII.3o9 CS., SJFG, 10th Period, Book 37, December 2016, 1840. 13 R. Brañes, Manual de Derecho Ambiental Mexicano (Mexico: FCE, 2000), 176. 14 C. Aceves, Bases Fundamentales del Derecho Ambiental Mexicano (Mexico: Porrúa, 2003), 129.

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mexico 283 Environmental policy instruments are directed towards relevant authorities, to private natural or legal persons, or seek to orient or change the behaviour of civil society. Also, some of these instruments are mandatory while others are voluntary, aimed at achieving environmental objectives superior to the minimum required by law.15 The list of environmental policy instruments referred in the LGEEPA includes environmental planning, ecological land-use planning, economic instruments, regulation of human settlements, environmental impact assessment (EIA), NOMs, self-regulation and auditing, as well as research and education. Strategic environmental assessment has not been included, despite proposals to this end.

13.3.1 Air Pollution and Climate Change While the Mexican Constitution does not refer expressly to the atmosphere as such, it establishes in Article 27 that the nation has direct ownership over the space above the national territory, thus providing an additional constitutional basis to regulate air pollution and climate change.

13.3.1.1 Air Pollution Even though the existence of air pollution in Mexico City has been detected since the ’50s, it was not until 1986 that it became a priority for the Mexican authorities, when several programmes were adopted at both local and federal level.16 While most of the norms on air pollution have been adopted considering criteria and standards adopted in other countries, prevention and control of air pollution is based on two main criteria. First, air quality must be satisfactory in all human settlements and regions of the country, and secondly, pollutant emissions from natural, artificial, stationary, or mobile sources must be reduced and controlled to assure air quality that is satisfactory for the well-being of the population and the ecological balance. With this aim, SEMARNAT, states, and municipalities must integrate an inventory of emissions and transfers of air pollutants. In addition, stationary sources of federal jurisdiction that emit or can emit odours, gases, or solid or liquid particles to the atmosphere require authorization from SEMARNAT for their operation and functioning. The Federation is competent in relation to high-risk activities, such as the industries of chemicals, oil, pigments, pulp and paper, glass, cement, power generation, and treatment of hazardous wastes. States and municipalities are, in contrast, in charge of authorizing, inspecting, and supervising other emitters.

13.3.1.2 Climate Change The 2012 General Climate Change Act (LGCC) embodies the framework law on climate change in the Mexican legal system. It establishes the concurrent competencies relating to mitigation and adaptation of the three levels of government; provides for the creation of an inter-ministerial commission comprised of thirteen different ministries at the federal level and a permanent consultative council formed at least by fifteen members from the social, 15 Ibid., at 127. 16 C. Nava, Estudios Ambientales (Mexico: IIJ, 2009), 110.

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284 marisol anglés hernandéz and montserrat rovalo otero private, and academic sectors; and mandates the adoption of several planning instruments, including a National Strategy, a National Programme, and states’ programmes on climate change that must observe the principles of precaution, integrity and transversality, and the adoption of production and consumption patterns that can lead to the transition to a lowcarbon economy. The LGCC provides for several instruments related to adaptation, including risk atlas, early warning systems, damage assessments of ecosystems related to water, epidemiological prevention and risk programmes, as well as environmental protection and contingency programmes in areas of high vulnerability, natural protected areas, and tourist destinations. By 2015, municipalities were supposed to consider climate change effects in their urban development programmes, and to adopt climate change programmes aimed at integrating and publishing local risk atlas. Unfortunately, these goals have not yet been achieved. The national policy on mitigation requires the diagnosis, planning, measurement, monitoring, reporting, verification, and assessment of national emissions and is based on the principle of gradualness, which seeks to mitigate emissions starting with those sectors that have more potential to reduce emissions. To measure and control emissions, the LGCC provides for the creation of national and state inventories as well as a national registry of emissions produced by different stationary and mobile sources, which is already in place. As for economic instruments, the LGCC mandates the creation of a climate change fund that gives priority to adaptation measures, a carbon tax has been implemented for some fossil fuels,17 and the government intends to start an emissions trading scheme in 2018 as a result of recent amendments to the LGCC.18

13.3.2 Water According to Article 27 of the Constitution, the water of rivers, lakes, springs, and aquifers within the Mexican territory belongs originally to the nation and the executive power, at the federal level, allows for the grant of concessions and allocations for their use. The 1992 National Waters Act (LAN) constitutes the main piece of legislation on the matter and aims to regulate the exploitation, use and enjoyment of national waters, their distribution and control, as well as their preservation in terms of quality and quantity. Water is managed at a basin level. Since 1975 the government has acknowledged that the basin was the most adequate unit to control and use water resources as it respects the natural spaces of the hydrological cycle. However, it was not until 1992 that the institutional structure was adjusted to achieve this aim.19 Basins are governed by specialized and autonomous technical, administrative, and legal units supported, at least in theory, by advisory councils. The federal government grants concessions to natural or legal persons, whether public or private, to extract and use determined volumes of water, in an order of precedence based on the use to be given to the resource. In contrast, municipalities and states receive allocations of water to provide services related to domestic and urban purposes. However, the LAN 17 Article 2(1)(H) LIEPS, DOF, 30 December 1980, amendments of 18 November 2015. 18 Gobierno de la República, ‘Qué es y por qué beneficia a México el Mercado de Carbono’, 16 August 2016, available at: https://www.gob.mx/gobmx/articulos/que-es-y-porque-beneficia-a-mexico-el-mercado-de-carbono. 19 J. Sánchez, El mito de la gestión descentralizada del agua en México (Mexico: IIJ, 2012), 27.

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mexico 285 provides for restrictions applicable to water extraction in cases of drought and other natural phenomena, as well as the establishment of protected, regulated, reserved, and closed areas where the extraction and use of water is limited or prohibited. The LAN mandates the creation of an inventory of discharges and wastewater treatment plants. A permit from the National Water Commission (CONAGUA) and the payment of fees is required for permanent or intermittent wastewater discharges in national watercourses, when they infiltrate in land that belongs to the nation or when they can pollute aquifers. Wastewater must be treated before discharge according to the corresponding permit, relevant NOMs, and the parameters and pollutant limits established for different watercourses through declarations of the executive power. Municipalities are in charge of controlling the discharge of sewage coming from population centres. In practice, however, illegal or irregular discharges are not uncommon due to poor control of authorities and defective enforcement of the regulation, a situation that has led to the severe pollution of many rivers and lakes. Furthermore, it has been considered that CONAGUA lacks modern, creative, and sustainable programmes for the management of water,20 in addition to decreasing availability of water caused by overexploitation, pollution, inefficient use of water, and deficient hydraulic infrastructure.21 For this reason, there has been recent interest from the public, private, and social sectors to adopt a new national water act. Although several bills have been presented to Congress in recent years, none of them has yet passed.

13.3.3 Biological Diversity As one of the seventeen mega diverse countries in the world, the protection and preservation of biodiversity is of importance to Mexico, and therefore constitutes one of the objectives of the LGEEPA. Furthermore, in 2000, the government adopted the National Strategy on Biodiversity in Mexico that establishes objectives, strategies, and actions towards 2050, as well as an Action Plan towards 2030. In addition, the National Commission for the Knowledge and Use of Biodiversity (CONABIO) has implemented a national information system and a national monitoring system of biodiversity. However, there is no law or regulation addressing biodiversity as such. A biodiversity act was proposed in Congress as a result of the CBD COP13 celebrated in Cancun, and it is currently being discussed after a consultation process. At the moment, there are instead different pieces of regulation addressing individually the various elements of biodiversity, although in a somewhat inadequate and outdated manner.

13.3.3.1 Protected Areas Natural protected areas (NPAs) are one of the most constraining instruments in Mexican environmental regulation.22 These are regulated and controlled through the LGEEPA23 20 D. Ramírez and J. Ramírez, Derecho Ambiental y Desarrollo Sustentable (Mexico: Porrúa, 2004), 258. 21 M. Anglés, ‘Los cursos de agua compartidos entre México y Estados Unidos de América y la variable medioambiental. Una aproximación’ (2006) VI Anuario Mexicano de Derecho Internacional 89, at 99. 22 D. Ramírez and J. Ramírez, Derecho Ambiental y Desarrollo Sustentable, at 264. 23 RLGEEPAANP, Mexico, DOF, 30 November 2000.

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286 marisol anglés hernandéz and montserrat rovalo otero which defines NPAs as zones in which the original environment has not been significantly altered by the activities of human beings, or in which the ecosystems and integral functions require to be preserved and restored. The regulation recognizes seven different types of NPAs at the federal level: namely biosphere reserves, national parks, natural monuments, natural resources protection areas, flora and fauna protection areas, sanctuaries, and the recently incorporated voluntary areas for conservation. In addition, states can establish parks, reserves, and other categories of protected areas, and municipalities can create ecological conservation zones within their jurisdiction. Currently, 181 NPAs and 367 voluntary areas for conservation have been established. NPAs are established by the President of Mexico by issuing a declaration after justification studies are prepared and consultation with local governments, other entities of the federal government, social organizations, indigenous peoples, universities, and other research centres has taken place. SEMARNAT has the duty of issuing a management plan for each NPA within one year after its creation. Management plans establish permitted activities, actions, and basic guidelines for the management of NPAs. However, in practice, only 102 areas have a management plan.24

13.3.3.2 Species The LGEEPA contains a few provisions on the protection and sustainable use of flora and fauna that provide for the establishment of bans and closed seasons for the preservation of species in prescribed areas, as well as restrictions on the import, export, and transit of wildlife. The provisions of LGEEPA are complemented by the General Wildlife Act (LGVS),25 which establishes the competencies of the three levels of government regarding the conservation and sustainable use of wildlife and their habitat. According to the LGVS, landowners or possessors have the right to sustainable use of wildlife contained within their land, including specimens, parts thereof, and by-products, or they can also transfer such a right to third parties on a several liability basis. However, they must request the registration of those pieces of land as management units for wildlife conservation (UMA). The LGVS also provides for the creation of centres for wildlife conservation and research, and the establishment of refugee areas to protect aquatic species and critical habitats. The latter were copied from the US Regulations and refer to the protection of specific areas that are essential for the survival of a species at risk or a population thereof. The instrument is considered to be outdated by some because it does not embody an ecosystems approach, but still, it has been used in a limited way.26 Endangered species are classified as species subject to special protection, threatened, in danger of extinction, and probably extinct.27 The utilization of species threatened or in danger of extinction is not permitted unless their controlled reproduction is guaranteed. 24 CNDH, ‘Recomendación General número 26 sobre la falta y/o actualización de programas de manejo en áreas naturales protegidas de carácter federal y su relación con el goce y disfrute de diversos derechos humanos’, 13 April 2016. 25 LGVS, Mexico, DOF, 3 July 2000, amendments of 26 January 2015. 26 J. Olivo, ‘La protección de la biodiversidad en el derecho ambiental mexicano: un análisis de la legislación desde el enfoque de especies amenazadas y su hábitat crítico’ (2016) XLIX Boletín Mexicano de Derecho Comparado 347, at 368. 27 NOM-059-SEMARNAT-2010, Mexico, DOF, 30 December 2010.

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mexico 287 Authorizations can be issued for endemic species when their utilization does not threaten them. Utilization of other wildlife species for economic activities can also be authorized by SEMARNAT when their controlled reproduction or development in captivity is guaranteed, or when the exploitation rate is lower than that of the population’s natural renewal.

13.3.3.3 Genetic Resources Despite some bills presented in Congress to implement the Nagoya Protocol, no legislation on this matter has been passed. However, in 2005 the Genetically Modified Organisms (GMOs) Biosafety Act (LBOGM) was enacted, and three years later its regulation was adopted.28 The LBOGM regulates the contained use, experimental, pilot and commercial release, trading, import, and export of GMOs with the purpose of preventing, avoiding, or reducing possible risks to human health, the environment and biological diversity, or animal, plant, and aquatic health. The release and import of GMOs requires a permit from SEMARNAT, and from the Ministry of Health and the Ministry of Agriculture, Livestock and Fishing in some cases. The LBOGM provides for the establishment of GMOs free zones, prohibits their release in NPAs’ core zones as well as regions of crops from which Mexico is the origin centre. It also prohibits the use of GMOs to build biological weapons.

13.3.4 Waste Waste is regulated in the General Act for the Prevention and Comprehensive Management of Waste (LGPGIR),29 its regulation,30 and several NOMs. Waste is defined in Article 5 LGPGIR as the ‘material or product whose owner or possessor discards and that is found in a solid or semi-solid state, or that is a liquid or gas confined in a container or deposit, that can be recovered or requires to be treated or finally disposed’. This definition allows reusing, recycling, and co-processing discharged materials or products, thus providing them with value, maximizing the benefits derived from them, and reducing the administrative burden of their management.31 In addition to the recovery of wastes, the principles of shared responsibilities and comprehensive management of wastes should guide the design of the environmental policy on this matter. The management of hazardous wastes constitutes a federal competence, but it may be performed by states and municipalities through coordination agreements. However, the lack of sufficient funding and training has restricted this opportunity of decentralization in practice.32 In contrast, municipalities (and states in some cases) manage solid urban wastes, that is, those generated by households, small businesses, public spaces, and roads. In addition, 28 LBOGM, Mexico, DOF, 18 March 2005, and RLBOGM, Mexico, DOF, 19 March 2008. 29 LGPGIR, Mexico, DOF, 8 October 2003. 30 Reglamento de la Ley General para la Prevención y Gestión Integral de los Residuos, Regulation of the General Act for the Prevention and Comprehensive Management of Waste, Mexico, DOF, 30 November 2006. 31 M. Tejado, La contaminación del suelo por residuos peligrosos y su regulación en México (Mexico: IIJ, 2014), 48. In contrast, the definition of waste provided by Art. 3(XXXII) LGEEPA excludes this possibility. 32 M. Anglés, ‘Notas sobre la insuficiencia del régimen jurídico aplicable a los residuos peligrosos en México’ (2009) XLII BMDC 705, at 722.

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288 marisol anglés hernandéz and montserrat rovalo otero the LGPGIR establishes a third category of wastes to include those generated by productive processes that do not have the characteristics to be considered as either hazardous or solid urban wastes, such as batteries, tyres, technological, and hospital wastes. The latter are called special treatment wastes and their management is in general a state competence. Management plans constitute the main instrument used to minimize the generation of wastes and maximize their recovery. Their content and the entities obliged to design and implement them vary according to each type of waste, but may include producers, importers, exporter, distributors, dealers, consumers, sub product users, large generators of wastes, and authorities from the three levels of government. The Mexican Regulation also emphasizes the issue of liability and the duty to repair the environmental or health harm produced by the pollution of a site or mismanagement of waste. In addition, the owners or possessors of contaminated land are obliged to remediate it, even when they were not the polluters. For this reason, local authorities are also obliged to list polluted sites within their jurisdiction in the Public Property Registry, in order for people to be aware of environmental liabilities related to land. Unfortunately, these provisions have not been robustly enforced in practice, given the absence of accurate information and the hundreds of polluted sites that have not been remediated.33

13.4 Implementation Framework 13.4.1 Access to Environmental Information At the national level, the right of access to information is recognized in Article 6 of the federal Constitution, on the basis of the General Act on Transparency and Access to Public Information (LGTAIP), whose mandate is to establish the principles, general bases, and procedures to guarantee the right of access to public information of the three levels of government; as well as to provide uniformity to the system of information generation, access, and accountability at the national level.34 The right to information on environmental matters is a fundamental instrument for public management, social awareness, education, and public participation.35 In this regard, the LGTAIP emphasizes that urban impact and environmental impact studies should be publicly available. This right has been recognized since 1996 in the LGEEPA and should be guaranteed by SEMARNAT and its decentralized bodies. The LGEEPA mandates the creation of a national environmental and natural resources system, a fundamental instrument to scrutinize government actions. The system is integrated with mandatory data provided by relevant entities regarding emissions, discharges, biodiversity, and transboundary movements of hazardous waste. 33 M. Tejado, La contaminación del suelo por residuos peligrosos y su regulación en México, at 82–4. 34 Articles 1 and 28, respectively, LGTAIP, Mexico, DOF, 4 May 2015. 35 M. Anglés, ‘Del derecho de acceso a la información al acceso a la información pública ambiental en México’ in M. del C. Carmona, M. de L. Hernández, and A. Acuña (eds.), 20 años de Procuración de Justicia Ambiental en México. Un homenaje a la creación de la Procuraduría Federal de Protección al Ambiente (Mexico: UNAM-IIJ, 2012), 3–23, at 4–5.

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mexico 289 The guarantor authority of this right at the federal level, the former Federal Institute of Access to Public Information and Personal Data Protection, issued guideline 4/13 which considers that environmental information is generally not susceptible of classification due to the public and collective interest implied in the human right to a healthy environment and the protection of the environment. More recently, this Institute issued informative note INAI-117-6, arguing that the right of access to environmental information allows the full enjoyment of other essential rights, for which society requires access to environmental information in a timely, appropriate, and necessary manner, in order to be able to combat the negative effects on the environment. For its part, the SCJN has shown a positive attitude towards the protection of the right to environmental information, considering that it entails the duty of public authorities to ensure that information on environmental issues is always available to society, based on the principles of maximum publicity and transparency. For this reason, resolutions that deny environmental information in absolute terms are to be considered unconstitutional.36 It is clear then that as society appropriates this right, its ability to influence, control, and demand environmental decision-making increases, contributing to the construction of sustainable development.37

13.4.2 Access to Environmental Participation In Mexico, the Constitution sets the guidelines for the participation of social sectors in the democratic planning of national development. In this sense, the Environmental and Natural Resources Sectorial Program 2013–18 states that the participation of citizens in environmental management is being consolidated through the Advisory Councils for Sustainable Development. At the moment, the National Advisory Council, six Regional Councils, and thirty-two Core Councils are functioning, in addition to other mechanisms for the participation of civil society, the business sector, the academy, and indigenous peoples. In order to assure environmental public participation, the LGEEPA incorporated normative instruments that formally involve both private and public sectors through participative mechanisms. Public participation is envisaged in the drafting of programmes aimed at preserving and restoring ecological balance and environmental protection; in the formulation, issuing, implementation, and assessment of general and local ecological land-use planning; as well as in the EIA process. However, in many of these cases, participation is procedural in nature and not compulsory. Authorities use it to legitimize public decision-making, while maintaining a margin of discretion to decide whether or not to consider the contributions made by people in the participatory processes. Besides the LGEEPA, other environmental sectorial acts incorporate public participation mechanisms for water management, preservation and sustainable use of wildlife, comprehensive management of waste, and preservation, protection, restoration, and utilization of forest ecosystems. Likewise, the federal government, states’ governments, municipalities, and Mexico City shall constitute advisory bodies composed by public entities, academic institutions, social organizations, and businesses with advisory, assessment, and follow-up functions. 36 Case 2a. LXXII/2010, SJFG, 9th Period, 2nd Chamber, Vol. XXXII, August 2010, 460. 37 M. Anglés, ‘La participación pública para la sostenibilidad en México’ (2013) II(6) Revista Internacional de Direito Ambiental 209, at 212.

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290 marisol anglés hernandéz and montserrat rovalo otero Finally, it is important to mention that the rights and mechanisms enshrined in ILO Convention 169, such as the right to consultation, participation, and the duty to obtain free and informed consent from indigenous peoples and communities, have become fundamental for the enforcement of their collective rights against the interests of great capitals and the planning and implementation of development and investment projects in their lands and territories. Even though Mexico still lacks the legal and administrative infrastructure to guarantee the right of consultation of indigenous peoples and communities, it has been favourably argued before federal tribunals and the Supreme Court. In 2012, the SCJN granted an amparo (similar to an habeas corpus claim) to safeguard the right of consultation of the Huetosachi community of the municipality of Urique, Chihuahua against the authorization of a tourist project in the National Park ‘Barrancas del Cobre’. A regional advisory council was supposed to be created in the area of influence of the project, so as to establish the necessary consultation mechanisms to define and propose balanced, just and sustainable objectives, priorities and policies of the project, ensuring the participation of the indigenous community. However, this did not happen.38 The Supreme Court’s hermeneutical response attended the constitutional reform on human rights, which seeks the enforcement of collective human rights and requires the observance of international human rights standards.39 In another case, the Yaqui tribe contested the authorization of SEMARNAT of February 2011 for the construction of the Independence Aqueduct aimed to transfer water from the Yaqui River to the Sonora River to provide water to the municipality of Hermosillo, State of Sonora. In light of the omissions in the process of consultation and consent, the Yaqui tribe presented an amparo lawsuit, which obtained a favourable decision from a federal district judge but was contested by SEMARNAT. Given the significance of the topics involved, the SCJN took over the case and solved the amparo lawsuit under review, ratifying the protection granted by the district judge from Sonora to the Yaqui tribe and nullifying SEMARNAT’s authorization. The SCJN accepted the claim that the transfer of river water could affect the community, an issue that was ignored by the environmental authority and that the process had not fulfilled the legal requirements of the right to information, consultation and free, prior, and informed consent of the Yaqui tribe.40 Undoubtedly, the multiculturalism that characterizes Mexico as a nation raises the challenge of achieving development with identity, which in turn requires the recognition and guarantee of the autonomy and the rights to land, territories, and natural resources of indigenous peoples and communities. Their rights are in constant conflict with international and national economic interests, oriented towards the exploitation of natural resources and the implementation of great development projects. In this sense, the future challenge relies in strengthening the operation and management of citizens’ participation mechanisms on environmental matters, guaranteeing an effective access to information, transparency, and accountability.

38 Amparo in Review 781/2011, SCJN, 2nd. Chamber, 14 March 2012. 39 M. Anglés, ‘Jurisprudencia interamericana. Acicate contra la discriminación y exclusión de pueblos originarios de México en relación con sus recursos naturales’ (2014) XIV AMDI 261, at 269. 40 Amparo in Review 631/2012, SCJN, 1st Chamber, 8 May 2013.

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mexico 291

13.4.3 Access to Environmental Justice As was seen in section 13.1, Mexico has a top-down administrative system in which SEMARNAT is the main authority on environmental matters but it is supported by decentralized bodies or agencies that focus on specific topics or tasks. In addition to supervising, inspecting, investigating, and sanctioning non-compliance with environmental regulation, the Federal Attorney’s Office for Environmental Protection—PROFEPA—is in charge of receiving citizens’ complaints; promoting and increasing the levels of compliance among society, the industrial sector, and other authorities; as well as triggering criminal prosecutions before federal tribunals.41 The judicial system allows private-to-private suits on civil or environmental grounds and, more recently, collective actions. Natural or legal persons may claim through amparo proceedings, including collective amparos, the violation of their human rights produced by acts or omissions of authorities. They may also contest administrative acts and resolutions of federal authorities before superior authorities or federal tribunals. In this regard, the LGEEPA was recently amended to allow those who have a legitimate interest, that is, those belonging to affected or possibly affected communities, to contest administrative acts related to projects or activities that contravene LGEEPA’s provisions, NOMs, regulations, ecological land-use plans, and NPAs declaratory acts, provided that the claimants prove that such projects or activities cause or may cause environmental damage, or may have a negative impact on natural resources, wilderness, or public health.42

13.4.3.1 Environmental Liability Historically, Mexico has sought to solve the problem of environmental damage through referral from administrative law to civil law. Recent efforts on improving access to justice on environmental matters led to the enactment in 2013 of the Federal Act on Environmental Liability (LFRA), which expressly addresses environmental liability and determines the mechanisms to repair, compensate, and/or restore environmental damage. In addition, the LFRA mandated the creation of environmental tribunals, though these have not yet m aterialized. Even though the LFRA may seem to be an advanced piece of legislation and despite its broad definition of environmental damage, it exempts from liability those who possess an authorization or permit from the environmental authority, even when causing proved environmental damage. As liability cannot be established under this scenario, the reparation of damage is left to the state and society to assume, a situation that is contrary to the principles and objectives of environmental law. On the other hand, the LFRA recognizes a broad entitlement to sue in court in respect of environmental liability for individuals from communities affected by environmental damage, environmental NGOs, the Attorney General, PROFEPA, and states’ environmental lawyers. Under this new act, the action to sue for environmental liability prescribes in twelve years, counting from the day in which the damage to the environment and its effects occur. On this point, however, the SCJN has stated that the prescription of the action begins 41 Article 45 RISEMARNAT, Mexico, DOF, 26 November 2012. 42 Article 180, LGEEPA, Mexico, DOF, amendments of 28 January 2011.

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292 marisol anglés hernandéz and montserrat rovalo otero to run when the affected persons are aware of the damage. With regard to reparation, the law requires the restoration of things to the state they had before the damage was caused and in case of impossibility, to proceed with compensation. This act was judicially tested for the first time in 2017, in relation to a conviction resulting from the death of two specimens of the species ovis canadensis weemsi (bighorn sheep) due to poaching on Isla del Carmen, Baja California Sur. The judgment ordered those responsible to pay for the acquisition, transportation, and reintroduction of two specimens of the specie cited—a female and a male—to Isla del Carmen, a sanction that shows a real orientation towards the restoration of environmental damage.43

13.4.3.2 Class Actions On 29 July 2010, Article 17 of the federal Constitution was amended to regulate collective actions. This led to the amendment the Federal Code of Civil Procedure (CFPC), which provides that the defence and protection of collective interests and rights must be exercised before the federal courts. It is striking that in the judicial field environmental protection is restricted to the federal level, when it is a concurrent matter according to the Constitution. The CFPC establishes three types of collective actions, namely diffuse actions to protect diffuse rights and interests; collective actions in a strict sense to protect collective rights and interests; and homogenous individual actions to protect rights and interests of collective incidence. Diffuse actions are more suitable for the defence of the environment. However, they require a common representation of at least thirty members of the community, a criterion that is completely arbitrary and makes no sense given the supra individual and indivisible nature of collective and diffuse rights and interests. Any person should be allowed to file a claim on behalf of the group.44 In this regard, the judiciary have argued that the exercise of collective action requires judges to perform an advanced legal interpretation grounded on constitutional basis and considerable flexibility in the application of rules on procedural formalities, the burden of proof, its assessment, and analysis of the case at hand.45 Another weak point of the CFPC relates to the limited prescriptive period of collective actions. The latter prescribe after three years and six months from the date at which the damage was caused.46 As a result, it seems that legislators are trying to restrict e nvironmental access to justice and limit the guarantees and progressiveness of this right. However, the SCJN has held that in matters of access to justice, courts are authorized to scrutinize the reasonableness of the legislative activity in cases in which it imposes different requirement to bringing legal actions that protect similar legal rights or interests.

13.4.3.3 Collective Amparo The amparo proceedings are based on constitutional Articles 103 and 107 and regulated in the Amparo Act (LA), enacted on 2012 to settle any dispute that arises from general rules,

43 Civil Appeal 25/2015, Unit Court of the 26th Circuit, La Paz, Baja California Sur, 28 February 2017. 44 A. Gidi, Las acciones colectivas y la tutela de los derechos difusos, colectivos e individuales en Brasil; un modelo para países de derecho civil (Mexico: UNAM-IIJ, 2004), 59. 45 Case I.4o.C.136 C., SJFG, 9th Period, Vol. XXVII, April 2008, 2381. 46 Article 584 CFPC.

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mexico 293 acts, or omissions of authorities that violate human rights and the guarantees granted for their protection by the federal Constitution and international treaties to which Mexico is a party. In addition, judges may order the suspension of claimed authorities’ acts in order to preserve the situation intact during the proceedings, a feature of great relevance for environmental cases. Furthermore, the LA provides for collective amparos, in which the complainant may either hold a subjective right or a legitimate interest.47 As a result of a collective amparo, peasants and fishermen of the municipalities of Huimanguillo and Cárdenas of the State of Tabasco were protected by a federal court that ordered PROFEPA to investigate, sanction and order the reparation of environmental damages caused by the company Petróleos Mexicanos.48 In addition, a federal tribunal is in the process of reviewing an amparo filed by inhabitants from the Port of Veracruz who considered that their right to a healthy environment had been violated as a result of the EIA process to expand the port. The claimants argued that the environmental impact study was filed to SEMARNAT in at least fourteen parts and thus the authority did not consider the impacts of the project in an integrated way. They also argued that the study did not refer to the existence of a coral reef located 500 metres away from the port entrance, for which SEMARANT breached the decree of the National Park: Sistema Arrecifal Veracruzano, the Ramsar Convention, and the Convention on Biological Diversity.49

13.4.3.4 Environmental Criminal Justice As explained before, environmental matters are a concurrent competence, for which the Federation, states, and municipalities are empowered to criminally regulate environmental damages. At the federal level, title twenty-five of the Federal Criminal Code establishes crimes against the environment in four areas: technological and hazardous activities, biodiversity, biosafety, and environmental management. Due to the complexity and technicality that characterizes environmental matters, the SCJN has held that to establish crimes against the environment, it is necessary to consistently articulate criminal law with the content of administrative law and other sciences.50 Also, in this area of environmental law, the coordination between administrative authorities and the Attorney General’s Office is of great importance to identify possible environmental crimes and proceed accordingly. Furthermore, one of the biggest challenges facing environmental criminal justice in Mexico consists in the possibility of determining causal links to assert the responsibility of offenders as well as implementing mechanisms to repair environmental damage. Nevertheless, it is important to note that there are several cases in which environmental crimes have been prosecuted and punished with imprisonment; mainly because of breaching fishing periods and using protected species, as well as handling hazardous waste improperly.51 47 Article 5(I) LA, DOF, 2 April 2013, amendments of 14 July 2014. 48 Indirect amparo, file 1726/2013, Fourth District Court in Tabasco, 10 March 2017. 49 Indirect amparo, file 1241/2016, Fifth District Court in Veracruz, 29 March 2017. 50 Case Law 1ª./J. 21/2012, SJFG, 10th Period, 1 Chamber, Book XIV, Vol. 1, November 2012, 610. 51 Amparo under Review 548/2016, SCJN, 1st Chamber, 19 October 2016; Amparo under Review 455/2011, SCJN, 1st Chamber, 29 June 2011; Amparo under Review 582/2010, SCJN, 1st Chamber, 9 March

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13.5 Conclusion Similar to other countries, the initial approach of environmental regulation in Mexico related to health issues, evolving towards the recognition of the right to a healthy environment, collective actions, and environmental liability at the constitutional level. Several institutions have been created and a vast array of legal instruments adopted, which have led to overregulation and normative contradictions. Furthermore, given the nature of environmental law, several pieces of regulation are now outdated and procedures and efforts to update them have been slow and minimal. However, the 2011 constitutional reform on human rights and the recognition of the right to a healthy environment were paramount to foster the protection of the environment, both substantively and procedurally. The greatest challenge of environmental law in Mexico consists in achieving its effective and transversal implementation and enforcement. Judges and authorities generally ignore national and international environmental rules and principles; communication between environmental and non-environmental authorities is usually scarce; environmental authorities and institutions usually lack sufficient human and economic resources; and some states still lack environmental attorneys to supervise, investigate, and sanction non-compliance. By addressing these issues, promoting the application of environmental law, and improving its enforcement, Mexico will be closer to achieving its objectives on the protection of the environment, preservation of the ecological balance, sustainable use of natural resources, and prevention and reparation of environmental damage.

13.6 Select Bibliography Aceves, C., Bases Fundamentales del Derecho Ambiental Mexicano (Mexico: Porrúa, 2003). Anglés, M., ‘Los cursos de agua compartidos entre México y Estados Unidos de América y la variable medioambiental. Una aproximación’ (2006) VI Anuario Mexicano de Derecho Internacional 89. Anglés, M., ‘Notas sobre la insuficiencia del régimen jurídico aplicable a los residuos peligrosos en México’ (2009) XLII Boletín Mexicano de Derecho Comparado 705. Anglés, M., ‘Del derecho de acceso a la información al acceso a la información pública ambiental en México’ in C. M. del Carmen, H. M. de Lourdes, and A. A. Laura (eds.), 20 años de Procuración de Justicia Ambiental en México. Un homenaje a la creación de la Procuraduría Federal de Protección al Ambiente (Mexico: UNAM-IIJ, 2012), 3–23. Anglés, M., ‘La participación pública para la sostenibilidad en México’ (2013) II(6) Revista Internacional de Direito Ambiental 209. Anglés, M., ‘Jurisprudencia interamericana. Acicate contra la discriminación y exclusión de pueblos originarios de México en relación con sus recursos naturales’ (2014) XIV Anuario Mexicano de Derecho Internacional 261. Anglés, M., Agua y derechos humanos (Mexico: Comisión Nacional de los Derechos Humanos, 2016). Azuela de la Cueva, A., La ciudad, la propiedad privada y el derecho (Mexico: El Colegio de México, 1999). Brañes, R., Manual de Derecho Ambiental Mexicano (Mexico: FCE, 2000).

2011; Direct Amparo under review 2938/2010, SCJN, 1st Chamber, 16 February 2011; Amparo under Review 815/2010, SCJN, 1st Chamber, 2 February 2011; Amparo under Review 828/2010, SCJN, 1st Chamber, 19 January 2011.

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mexico 295 Ferrer, E., ‘Interpretación conforme y control difuso de convencionalidad. El nuevo paradigma para el juez mexicano’ in M. Carbonell and P. Salazar (eds.), La reforma constitucional de derechos humanos: un nuevo paradigma (Mexico: UNAM-IIJ, 2011), 339–429. Gidi, A., Las acciones colectivas y la tutela de los derechos difusos, colectivos e individuales en Brasil; un modelo para países de derecho civil (Mexico: UNAM-IIJ, 2004), 59. Mumme, S., R. Bath, and V. Assetto, ‘Political Development and Environmental Policy in Mexico’ (1988) 23(1) Latin American Research Review 7. Nava, C., Estudios Ambientales (Mexico: IIJ, 2009). Olivo, J., ‘La protección de la biodiversidad en el derecho ambiental mexicano: un análisis de la legislación desde el enfoque de especies amenazadas y su hábitat crítico’ (2016) XLIX Boletín Mexicano de Derecho Comparado 347. Ramírez, D. and J. Ramírez, Derecho Ambiental y Desarrollo Sustentable (Mexico: Porrúa, 2014). Rovalo, M. and P. Solano, ‘Country Report: Mexico’ Vol. 25(1) Yearbook of International Environmental Law (Oxford: Oxford University Press, 2014), 329–42. Sánchez, J., El mito de la gestión descentralizada del agua en México (Mexico: IIJ, 2012). Tejado, M., La contaminación del suelo por residuos peligrosos y su regulación en México (Mexico: IIJ, 2014).

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chapter 14

Si nga por e Lye Lin-Heng

14.1 Introduction

297

14.2 Constitutional and Environmental Infrastructure

298

14.3 Structure and Substance

300

14.4 Administrative and Judicial Framework

310

14.5 Conclusion

314

14.6 Selected Bibliography

314

14.2.1 Government 14.2.2 Legal System and Sources of Law

14.3.1 Pollution Control Laws 14.3.1.1 Air Pollution 14.3.1.2 Pollution from Stationary Sources/Industries 14.3.1.3 Pollution from Vehicles 14.3.1.3.1 Discouraging Car Ownership 14.3.1.3.2 Encouraging Green Vehicles 14.3.1.4 Air Pollution—Emissions from Other Sources 14.3.2 Water Pollution Laws and Water Management 14.3.2.1 Clean-up of Polluted Rivers 14.3.2.2 Water Management and Reuse 14.3.2.3 Water Pollution Laws 14.3.3 Waste Management Laws 14.3.4 Contaminated Sites 14.3.5 Noise 14.3.6 Nature Conservation Laws 14.3.7 Climate Change and Future Challenges 14.4.1 Government Agencies 14.4.2 Land Use Planning 14.4.2.1 In General 14.4.2.2 Judicious Siting of Industries

298 298

300 300 300 301 301 302 302 304 304 304 305 306 307 308 308 309 310 311 311 312

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singapore 297

14.1 Introduction The tiny city-state of Singapore is only 710 square kilometres in area. A former Crown Colony, it attained self-government in 1959, joined Malaysia in 1963 and left Malaysia on 9 August 1965, to become an independent nation. In its early years, Singapore faced the same problems as beset many developing countries today. Its main rivers and river basins were highly polluted; there was a lack of proper sewage treatment facilities; there was no proper system for waste disposal leading to land and water pollution; the air was polluted due to old and inefficient power plants and gas works and the unregulated burning of garbage and garden waste; and there were frequent floods due to poor drainage. Outbreaks of typhoid and cholera were not uncommon. Today, in the space of some forty years, Singapore has achieved the distinction of moving ‘From Third World to First’.1 What is even more remarkable is that it managed to do so while cleaning up its environment, moving its aspirations from a ‘Garden City’ to a ‘City within a Garden’, and now a ‘City of Gardens and Water’.2 Singapore’s air and water quality are well within the US-EPA and World Health Organization (WHO) standards. All premises are connected to modern sanitation. Ninety-one per cent of its residents own their own homes, and of these, 82 per cent live in high-rise apartments built by the country’s public housing authority, the Housing and Development Board (HDB). Water is clean and safe to drink from the taps. Refuse is collected daily by licensed contractors and incinerated; the ash is sent to an offshore landfill site. The handling and transportation of hazardous substances and toxic wastes are subject to a strict legal regime. All inland waters support aquatic life and the coastal waters meet recreational water standards. Singapore has also built an excellent infrastructure in banking and finance as well as in its port, airport, road, and rail transportation facilities. It is a world leader in the management of water reuse. It is also one of the greenest cities, with an abundance of trees and shrubs integrated with the urban landscape. It is a leader in urban and high-rise greenery, and its National Parks Board (NParks) initiated the Cities Biodiversity Index which was adopted at the tenth meeting of the Conference of the Parties on the Convention on Biodiversity in Nagoya, 2010.3 Singapore’s strict laws and their enforcement have ensured a low crime rate and provide a safe environment for its residents. Sound environmental management policies have secured a ‘clean and green’ physical environment. A ‘clean’ government has ensured that funds are available for the building of an excellent environmental infrastructure. Indeed, this is an important part of good governance and management.

1 See autobiography of Singapore’s First Prime Minister, Mr Lee Kuan Yew, From Third World to First: The Singapore Story - 1965–2000 (New York: Harper Collins, 2000). 2 http://www.pmo.gov.sg/newsroom/speech-prime-minister-lee-hsien-loong-opening-gardens-bay. 3 https://www.cbd.int/doc/meetings/city/subws-2014-01/other/subws-2014-01-singaporeindex-manual-en.pdf; see also https://www.nparks.gov.sg/biodiversity/urban-biodiversity/the-singaporeindex-on-cities-biodiversity.

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298 lye lin-heng This chapter examines Singapore’s success in managing the environment, which is due to an effective environmental management system (EMS). This comprises an administrative framework, comprehensive land use planning, building environmental infrastructure, investment in education and new technologies, and the implementation and enforcement of effective pollution control laws. These will be examined in turn, starting first with an overview of the legal system.4

14.2 Constitutional and Environmental Infrastructure 14.2.1 Government Singapore is a republic with a written constitution that provides for its executive, legislative, and judicial organs. Parliament is unicameral and led by the Prime Minister. The Head of State is the President, elected by the people every six years. The administration of the government is vested in the Cabinet, headed by the Prime Minister, who is appointed by the President from the Members of Parliament. The Constitution does not contain any provision relating to the environment.

14.2.2 Legal System and Sources of Law Singapore has two sources of law: English common law as developed in England and imported into Singapore; and laws passed by Parliament, including subsidiary legislation (rules, regulations, notifications, made by the relevant Minister under enabling legislation).5 As a Crown Colony, the Second Charter of Justice of 27 November 1826, imported English law as it stood in England on that date, subject to local customs and religions, and local legislation. Thus, English case-law as well as English statutes and the common law concepts of contract and tort laws were imported into Singapore. Uncertainties regarding the application of English statutory laws were resolved in November 1993 with the passage of the Application of English Law Act.6 This Act lists those English imperial and commercial statutes that apply in Singapore and specifies their applicability. It also specifies that common law and equity, so far as it was part of Singapore law immediately before the commencement of the Act, 4 See Lye Lin-Heng, ‘A Fine City in a Garden—Environmental Law and Governance in Singapore’ [2008] Singapore Journal of Legal Studies 86–117; Lye Lin-Heng, ‘Singapore’ in N. Robinson, L. H. Lye, and E. Burleson (eds.), Comparative Environmental Law & Regulation (Thomson Reuters Westlaw, 2015), chapter 46; Lye Lin-Heng, ‘Environmental Law -Singapore’ in R. Blanpain and K. Deketelaere (eds.), International Encyclopaedia of Laws/Environmental Law (The Netherlands: Walters Kluwer, Law & Business, 2013). 5 See H. H. M. Chan, The Legal System of Singapore (Singapore: Butterworths Asia, 1995); K. Y. L. Tan (ed.), The Singapore Legal System (Singapore: Singapore University Press, 2nd edn. 1999); K. Y. L. Tan (ed.), Essays in Singapore Legal History (Singapore: Singapore Academy of Law, 2007). 6 Act 35 of 1993, Cap. 7A, 1994 Rev. Ed. All laws in Singapore can be found on this site—http://statutes. agc.gov.sg/aol/home.w3p.

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singapore 299 would continue to be part of Singapore law, so far as it was applicable to the circumstances of Singapore and subject to such modifications as local circumstances might require.7 Environmental law in Singapore comprises statutory law as well as common law principles of tort which serve as constraints on a landowner’s use of his land. There are also ‘soft laws’ such as guidelines, codes of practice and directions, issued by the Ministry of Environment and Water Resources (MEWR)’s statutory boards, the National Environment Agency (NEA), and the Public Utilities Board (PUB). Other relevant ministries and boards include the Ministry of National Development’s National Parks Board (NParks) and the Agri-Veterinary Authority (AVA); as well as the Ministries of Health and of Law. The ‘soft laws’ issued by the NEA include Codes of Practice on Pollution Control, Surface Water Drainage, Hazardous Waste Management, and on Environmental Health, as well as the Revised Singapore Green Plan 2012, and the Sustainable Singapore Blueprint 2015. Polluting acts may result in both forms of law operating: prosecutions are brought under national laws passed by Parliament, but individuals who have suffered harm will have to bring personal actions in tort against the polluter, using the common law private tort actions of nuisance, negligence, and the rule in Rylands v Fletcher8 to recover damages and/or obtain an injunction. Nuisances may also be public nuisances under the Environmental Public Health Act.9 The main laws governing pollution on land are: • the Environmental Protection and Management Act (EPMA)10 (formerly called the Environmental Pollution Control Act)11 and its subsidiary laws. These govern air pollution, water pollution (other than marine waters), noise, and land contamination and took effect from 1 April 1999, replacing the Clean Air Act and the Water Pollution (Control and Drainage) Act, passed in the 1970s. • the Environmental Public Health Act and its subsidiary laws—this was passed in 1987 and inter alia, governs waste management. The main laws governing nature conservation are: • the Parks and Trees Act and its subsidiary laws • the Endangered Species (Import and Export) Act—this law implements the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES) • the Wild Animals and Birds Act • the Animals and Birds Act

7 See W. Woon, ‘The Applicability of English Law in Singapore’ in Tan (ed.), The Singapore Legal System, at 230–48. 8 (1868) LR 3 HL 330. Note the developments following Cambridge Water Co Ltd v Eastern Counties Leather [1994] 1 All ER 53 HL which added another element to this rule, i.e. that the damage must be foreseeable; bringing it in line with the requirements for negligence. 9 Cap. 95, (Act 14 of 1997) 2002 Rev. Ed. 10 Cap. 94A (Act 9 of 1999) 2002 Rev. Ed. 11 As from 1 January 2008, the EPCA was renamed ‘Environmental Protection and Management Act’ (EPMA), as the scope of the Act was broadened ‘to provide for the protection and management of the environment and resource conservation’. The Director of Pollution Control is now renamed Director-General of Environmental Protection.

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300 lye lin-heng

14.3 Structure and Substance 14.3.1 Pollution Control Laws 14.3.1.1 Air Pollution Sources of air pollution can be grouped into three categories: (i) stationary sources, such as power stations, oil refineries, and industries; (ii) mobile sources, such as motor vehicles; and (iii) other sources, such as the burning of waste and transboundary air pollution. While Singapore has managed to contain and control pollution from the first two sources, as well as localized burning of wastes, pollution from the large-scale burning of forests in Indonesia has led to considerable deterioration in air quality in some periods. These will be considered in turn.

14.3.1.2 Pollution from Stationary Sources/Industries The EPMA controls emissions from industrial sources. First, highly polluting industries require a special permit before they can commence operations. These premises are designated as ‘Scheduled Premises’ under the EPMA (sections 6–9) and are sited in specific industrial sites, sufficiently far away from residential areas. Applications for permission must give details of the type of industry or manufacturing process and the methods to control air pollution. Permission may be given subject to various conditions such as the installation or alteration of certain plant or equipment, alteration of methods or processes, erection or alteration of chimney heights, and the use of special fuel. Alterations thereafter require permission. The EPM (Air Impurities) Regulations12 prohibit the emission of dark smoke from chimneys (defined as, dark or darker than shade No. 1 on the Ringlemann Chart).13 Emissions of air impurities must conform to emission standards prescribed in these Regulations. These spell out the standards for gaseous emissions as well as for solid particles. The DirectorGeneral of Environmental Protection has wide powers where emissions are not within prescribed limits, for example, he may require that certain equipment be installed or altered, specify type of fuel, require higher chimneys, etc. The occupier must keep proper records, carry out tests on emissions if required, keep all equipment properly maintained, and allow ready access to and cooperate with inspectors. The NEA conducts regular inspections to ensure that pollution control equipment is properly maintained and emission standards are observed. Tests are conducted on gaseous emissions, fuel analysis, and smoke observations. Complaints are also investigated. The Income Tax Act14 provides tax incentives for persons who install any ‘efficient pollution control equipment or device;’ or ‘certified energy-efficient equipment;’ or ‘approved 12 RG 8, S 595/2000 (2008) Rev. Ed. 13 This was previously shade No. 2 on the Ringlemann Chart under the Clean Air (Standards) Regulations, 1972. 14 Ordinance 39 of 1947, Cap. 134, Rev. Ed. 2014.

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singapore 301 energy-saving equipment’ on or after 1 January 1996. Such persons would be entitled to claim a 100 per cent allowance for the capital expenditure for this equipment.15 Similar tax deductions are available for machinery that reduces noise or vibrations as well as for machinery that reduces or eliminates exposure to harmful chemicals.16

14.3.1.3 Pollution from Vehicles NEA’s PCD works closely with the Land Transport Authority (LTA) and the Traffic Police to control vehicular emissions. All vehicles imported into Singapore must conform to emission standards specified in the EPM (Vehicular Emissions) Regulations.17 These prescribe emission standards for vehicles according to their age and whether they are petrol or diesel vehicles. It is an offence for any person to use or permit the use of any smoky vehicle on the road (rule 19). Vehicles are also constantly monitored for roadworthiness.18 Cars over five years old must undergo compulsory inspections at special inspection centres where they are checked for roadworthiness and tested for exhaust emissions. Cars that exceed the emission standards are given a short time for remediation, failing which they will not be able to renew their road tax and will therefore not be allowed on the roads. Diesel-driven vehicles are required to undergo mandatory inspections every six months where they are required to pass the smoke emission test. 1 4.3.1.3.1 disc ouraging car ownership Singapore has a comprehensive policy to discourage car ownership. Economic disincentives are frequently employed.19 Car prices in Singapore are probably the steepest in the world, due to hefty import taxes and the required purchase of a special certificate (the ‘Certificate of Entitlement’ (COE)) before the car can be driven. In addition, cars have to pay a ‘road tax’ which increases with the engine capacity and age of the car. The road tax is doubled for cars owned by corporations. However, cars which are only driven from 8 p.m. to 7 a.m. and on weekends, pay a much reduced road tax (the ‘Weekend Car’ scheme). These measures are based on the ‘polluter-pays’ principle. Again, operating under this principle, road users have to pay to get into the central business district as well as to use certain roads and expressways that experience heavy congestion during peak hours. These restrictions are lifted on Sundays and public holidays. Under this 15 See Income Tax Act and the Income Tax (Efficient Pollution Control Equipment) Rules, 1996 R.10, s. 19A (5), (6), (7), (8), and (15). 16 See Income Tax (Low-decibel Machine, Equipment or System and Effective Noise Control Device or Engineering Noise Control Measure) Rules (Cap. 134, R. 12) and the Income Tax (Machine, Equipment or System which Reduces or Eliminates Exposure to Chemical Risk and Effective Chemical Hazard Control Device or Measure) Rules (Cap. 134, R. 13). 17 Cap. 94A RG 6. 18 Regulations 12–18 EPM (Vehicular Emissions) Regulations, Cap. 94A RG 5. See also EPM (Off-Road Diesel Engine Emissions) Regulations, S 299/2012. 19 Lye Lin-Heng ‘Environmental Taxation in the Regulation of Traffic and the Control of Vehicular Pollution in Singapore’ Critical Issues in Environmental Taxation—International and Comparative Perspectives Vol. I (Oxford: Oxford University Press, 2003), 387–425; (Janet Milne and ors, eds.). See also Lin-Heng Lye, ‘Environmental Taxation in the Management of Traffic in Singapore’ in Lin-Heng Lye and ors (eds.), Critical Issues in Environmental Taxation—International and Comparative Perspectives, Vol. VII (Oxford: Oxford University Press, 2009), 205–225.

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302 lye lin-heng ‘Electronic Road Pricing System’ (ERP) all cars are fitted with an electronic device (called an In-Vehicle Unit ‘IU’) that accepts a stored value cashcard. The IU deducts the appropriate ERP charges each time the vehicle passes through an ERP gantry. Cameras mounted at the gantry points will take a photograph of the licence plate of vehicles which do not have a cashcard or have insufficient amounts in their cashcards—they will soon receive a notice of their infringement and will have to pay a fine. This system has been operational since 1998, and has greatly eased traffic congestion. 1 4.3.1.3.2 enc ouraging green vehicles Rebates for green vehicles were first introduced in January 2001 to encourage the use of electric and hybrid cars. It was later extended to Compressed Natural Gas (CNG) vehicles in October 2001. In addition to new vehicles, the Green Vehicle Rebate (GVR) Scheme has been extended to include imported used electric and petrol-electric hybrid vehicles registered from 1 July 2010.20 As from 1 July 2013, the GVR for passenger cars will be replaced with a Carbon EmissionsBased Vehicle Scheme (CEVS).21 A carbon emissions tax is charged in respect of the first registration, on or after 1 July 2013, of any vehicle which has a carbon emission level exceeding the maximum limit of the neutral carbon emission band.22 It was recently announced in Parliament that Singapore will implement a carbon tax from 2019.23 A new Vehicular Emissions Scheme (VES) will replace the CEVS, which was implemented in 2013 and revised in 2015 with the aim of encouraging use of vehicles with low carbon emissions. Under this new VES scheme, which will run for two years beginning from 1 January 2018, four more pollutants will be considered in addition to carbon dioxide—namely hydrocarbons (HC), carbon monoxide (CO), nitrogen oxides (NOX), and particulate matter (PM).24 The VES rebate or surcharge will be determined by the worst performing pollutant. For electric cars and plug-in hybrid cars, an emissions factor of 0.4g CO2/Wh will be applied to their electricity energy consumption to compute their equivalent CO2 emission for cars registered from 1 July 2017.

14.3.1.4 Air Pollution—Emissions from Other Sources The open burning of trade and industrial refuse such as construction wastes is prohibited under the EPM (Prohibition on the Use of Open Fires) Order.25 The only open fires allowed 20 See Road Traffic (Motor Vehicles Registration and Licensing) Rules—R 9 Rebate for electric car, petrolelectric car, new electric taxi and new petrol-electric taxi; R 9AA—Rebate for electric vehicle and petrol-electric vehicle; R 9B—Rebate for environmentally friendly motor vehicle; and R 9C—Carbon emissions rebate for new or secondhand car or taxi registered on or after 1 January 2013. See http://www. lta.gov.sg/content/dam/ltaweb/corp/GreenTransport/files/COS12_Details%20on%20CEVS_Annex-A.pdf. 21 LTA, ‘Rebates for Low Carbon Emission Cars from 1 January 2013’ (28 November 2012), available at: https://www.lta.gov.sg/apps/news/page.aspx?c=2&id=12e099d1-e037-450b-80e3-5cb6b8293c4a. 22 Section 11AA Road Traffic Act, Cap. 276; Road Traffic (Carbon Emissions) Tax 2012 (S 653/2012), available at: http://www.lta.gov.sg/content/dam/ltaweb/corp/GreenTransport/files/COS12_Details%20 on%20CEVS_Annex-A.pdf. 23 http://www.straitstimes.com/singapore/environment/singapore-budget-2017-6-things-to-knowabout-the-new-carbon-tax-tweaked. 24 See https://www.lta.gov.sg/content/ltaweb/en/roads-and-motoring/owning-a-vehicle/costs-ofowning-a-vehicle/tax-structure-for-cars.html. 25 S 161/1999, 2008 Rev. Ed.

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singapore 303 in trade and industrial premises are those for fire-fighting practices or for the disposal of tail gases from industrial plants. However, pollution from the large-scale burning of forests in Indonesia has led to considerable deterioration in the air quality of its neighbours.26 Singapore has been subjected to this ‘haze’ each year, increasing in intensity in recent years. In June 2013, Singapore’s Pollutant Standards index (PSI) was an extremely hazardous 401, causing considerable economic loss and national distress. At the ASEAN level, an action plan was initiated in 1995 (ASEAN Cooperation Plan on Transboundary Pollution, Kuala Lumpur, June 1995)27 encompassing transboundary atmospheric pollution, transportation of hazardous waste, and shipborne pollution. It was not effective in preventing a second onslaught of widespread forest fires leading to serious transboundary air pollution only two years later, in 1997. In 2002 all ten states signed the ASEAN Agreement on Transboundary Haze Pollution.28 This established an ASEAN Coordinating Centre for Transboundary Haze Pollution Control to facilitate cooperation and coordination in managing the impact of land and forest fires in particular haze pollution arising from such fires. This Agreement was soon ratified by nine ASEAN states, but Indonesia ratified much later, in January 2015.29 Meanwhile, Singapore passed its Transboundary Haze Pollution Act which came into force on 25 September 2014.30 This new law allows the prosecution of errant companies, partnerships, or individuals in Singapore that have links to plantations in Indonesia by holding them responsible for a particular haze episode in Singapore if satellite and other images show that there is burning from their property in Indonesia. This is facilitated by a series of presumptions (section 8) that help to establish a causal link to enable the entity to be charged. It is clear that this law is novel and, in many ways, challenges traditional concepts of liability.31 There are considerable penalties—a daily fine not exceeding SGD$100,000 26 ‘What causes South East Asia’s Haze?’, available at: http://www.bbc.com/news/world-asia-34265922. 27 See the ASEAN website at http://asean.org/. ASEAN hard and soft law instruments relating to the environment can be found at this site—http://agreement.asean.org/search/by_pillar/3.html They can also be found on the website of the Centre for International Law at the Law Faculty, National University of Singapore—see ‘Documents Database’ at http://cil.nus.edu.sg/2009/cil-documents-database/. See also Koh Kheng-Lian, ASEAN Environmental Law, Policy and Governance: Selected Documents, Vols. I (2009) and II (Singapore: World Scientific, 2012). 28 A. K. J. Tan, ‘The ASEAN Agreement on Transboundary Haze Pollution: Prospects for Compliance and Effectiveness in Post-Suharto Indonesia’ (2005) 13 New York University Environmental Law Journal 647; S. S. C. Tay, ‘Southeast Asian Fires: The Challenge for International Environmental Law and Sustainable Development’ (1998–99) 11 Georgetown International Environmental Law Review 241; A. K. J. Tan, ‘Forest Fires or Indonesia: State Responsibility and International Liability’ (1999) 48 International & Comparative Law Quarterly 826. 29 http://asean.org/indonesia-deposits-instrument-of-ratification-of-the-asean-agreement-ontransboundary-haze-pollution/. 30 Act 24 of 2014. See T. Koh and M. Ewing-Chow, ‘The Haze and the Law’, Straits Times 27 June 2013; S. Jayakumar and T. Koh, ‘The Haze, International Law and Global Cooperation’, Straits Times ‘Opinion’ 6 October 2015; S. Jayakumar and T. Koh, ‘Sovereignty, Jurisdiction and International Law’, Straits Times 25 June 2016, available at: http://www.straitstimes.com/opinion/sovereignty-jurisdictionand-international-law. 31 See Lye Lin-Heng, Country Report on Singapore 2015—IUCN Academy of Environmental Law online journal, available at: http://www.iucnael.org/en/e-journal/previous-issues?layout=edit&id=615; A. K. J. Tan, ‘The Haze Crisis in Southeast Asia: Assessing Singapore’s Transboundary Haze Pollution Act, 2014’, NUS working paper 02/2015; A. K. J. Tan, ‘Can’t We Even Share Our Maps?: Cooperative and

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304 lye lin-heng (USD$72,000)32 for every day or part thereof that there is haze pollution in Singapore occurring at or about the time of such conduct. The maximum fine that can be imposed is $2 million. An entity can be served with a Preventive Measures Notice and be required to take certain action or refrain from certain action in relation to haze pollution in Singapore. Failure to comply with this Notice entails an additional fine not exceeding SGD$50,000 for every day or part thereof that the entity failed to comply with the Notice (section 5). So far, no entity has been prosecuted under this law, so it remains to be seen how this law will be applied.

14.3.2 Water Pollution Laws and Water Management 14.3.2.1 Clean-up of Polluted Rivers It must first be emphasized that in 1965, when Singapore became a nation-state, its main rivers, the Singapore and Kallang Rivers, both of which flowed into the city, were putrid and incapable of sustaining life. The city had developed around the river, and its banks teemed with people, lifestock, and pollutive industries (shipbuilding, ship-repairing, and backyard industries), all of which discharged their wastes into the waters. Over ten years, from 1977, the rivers were cleaned up at a cost of $150 million.33 It involved the relocation of 4,000 settlers and squatters, along with hawkers and vegetable sellers. The former were moved into public housing but a fair system of compensation was provided for each person. The boats, hawkers, and vegetable sellers were relocated. Mud, garbage, and debris had to be dredged from the river banks and river bed. Today, all rivers are clean and support fish and marine sports. Many have been dammed to provide a storage system for water.34

14.3.2.2 Water Management and Reuse According to a 2002 Report by the United Nations, Singapore was ranked 170th out of 190 countries that lack fresh water resources. This is due not to the lack of rainfall, but to its limited land as catchment and its high population.35 Singapore has now resolved its lack of natural water resources by investing heavily in research and technology and building a sound infrastructure for its water resources and supplies. Today, the country’s water supply is derived from four different sources or the ‘Four National Taps’ comprising water from local catchment areas (Singapore now has seventeen reservoirs, but started with only three built by the British), imported water (from the state of Johore in Malaysia), recycled water

Unilateral Mechanisms to Combat Forest Fires in Transboundary “Haze” in Southeast Asia’ in S. Jayakumar, T. Koh, R. Beckman, and H. D. Phan (eds.) Transboundary Pollution: Evolving Issues of International Law and Policy (Singapore: Edward Elgar, 2015). 32 As at 20 April 2017, SGD$1: US$ 0.72. All figures hereafter are in Singapore dollars (SGD), expressed as ‘$’. 33 http://www.straitstimes.com/singapore/5-interesting-facts-about-the-singapore-river-clean-up. 34 See Tan. Y. S. et al, Clean, Green and Blue: Singapore’s Journey towards Environmental and Water Sustainability (ISEAS, 2008). 35 T. C. Khoo, ‘Singapore Water: Yesterday, Today and Tomorrow’ in A. Biswas, C. Tortajada, and R. Isquierdo (eds.) Water Management in 2020 and Beyond (Berlin: Springer-Berlap, 2009), 237–50.

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singapore 305 (called NEWater36), and desalinated water.37 Singapore is now a world leader in water reuse and management and in the future, it plans to use 90 per cent of its territory as water catchment. The Public Utilities Board (PUB) assiduously seeks to ensure that the public uses water responsibly. Taps are fitted with devices that ensure a slower flow rate, toilet cisterns are designed to use less water, and water is carefully priced to reflect that it is precious. A recent 30 per cent price hike was announced, to take effect in two stages, on 1 July 2017 and on 1 July 2018.38 Poor families are to be given financial aid.

14.3.2.3 Water Pollution Laws Laws on water pollution control are essential to ensure that the rivers continue to be clean. As a city-state, the main sources that require water pollution control in Singapore are domestic wastewater, sewage and sullage, and industrial effluent. Pollution may also come from solid wastes, if not properly disposed of. Inland waters are classified into two categories: controlled watercourses and uncontrolled watercourses. Controlled watercourses are those from which water is taken and treated for potable use. Water pollution is controlled in Singapore by first, the provision of a comprehensive sewerage infrastructure and solid waste management system so as to prevent pollution at source; secondly by requiring industries to pre-treat their trade effluent to prescribed standards before discharge into the sewerage system; thirdly by the careful siting of polluting industries away from water catchment areas. Part V of the EPMA (sections 15–19) governs water pollution. The EPMA requires all trade effluent to be treated in the prescribed manner before being discharged into the drains or sewers. Permission to discharge must first be obtained under the EPM (Trade Effluent) Regulations.39 The NEA may require that various control mechanisms be installed, such as sampling test points, inspection chambers, flow-meters, and recording apparatus. The Regulations also specify point of entry temperature, pH value, and caustic alkalinity. All changes which affect the amount or nature of the trade effluent must be notified in writing. Discharge into water catchment areas is strictly prohibited. Industries which exceed the prescribed limits must install pre-treatment plants prior to the commissioning of the factories. There are severe penalties for breaches of these laws, particularly the discharge of toxic substances into inland waters (fine of $50,000 for the first offence and imprisonment for up to twelve months or both a fine and imprisonment; mandatory imprisonment of between one and twelve months on a second or subsequent conviction, plus a fine of up to $100,000 and work may be ordered to be stopped). Under section 71, liability may be extended to officers of a company or of an incorporated association as well as partners in a partnership if it was ‘committed with the consent or connivance’ or is ‘attributable to any act or default on his part’. However, prosecutions require the sanction of the Public Prosecutor (section 17(6)). Trade effluent must also be free of certain substances which may damage the sewerage system. The Regulations specify the concentrations of various substances that may be discharged, separating them into the three possible venues: public sewer, water course, and 36 NEWater is high-grade reclaimed water produced from treated used water that is further purified using advanced membrane technologies and ultra-violet disinfection, making it ultra-clean and safe. See https://www.pub.gov.sg/watersupply/waterquality/newater. There are now five NeWater plants. 37 Singapore has two desalination plants but is building another three. 38 https://www.pub.gov.sg/watersupply/waterprice. 39 S. 160/1999 (RG 5) 2008 Rev. Ed.

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306 lye lin-heng controlled water course. They also specify the five-day Biochemical Oxygen Demand (BOD) and Chemical Oxygen Demand (COD) and Total Suspended Solids (TSS). Discharges in excess of the BOD and TSS are allowed on payment of enhanced tariffs. This tariff is levied to recover the additional cost for treating this higher pollution load at sewage treatment works.

14.3.3 Waste Management Laws Singapore has an effective system of waste management. All waste is collected daily and incinerated. The ash is deposited in an offshore landfill site, Pulau Semakau which was created in 1999 by building a 7-kilometre rock bund to enclose a part of the sea between two islands 8 kilometres south of Singapore.40 During the construction of the landfill, efforts were made to protect the marine ecosystem, especially mangroves and corals. Thirteen hectares of mangroves were replanted to replace those removed during construction of the bund. Wildlife continues to thrive on Pulau Semakau, and the air and water quality remains good. Today, it is a popular site for nature lovers.41 However, there is an urgent need to reduce waste and promote recycling as the landfill has a limited lifespan. Singapore does not have laws mandating recycling. The law on waste is contained in the Environmental Public Health Act (EPHA)42 and its subsidiary laws, including the Regulations relating to general waste collection,43 public cleaning,44 and toxic industrial waste.45 All wastes must be disposed of only at disposal facilities/incineration plants. All collectors must be licensed and must keep proper records including the place and frequency of collection, place of disposal, type and tonnage of waste collected and disposed of, and the vehicle used. Collectors must ensure that the refuse or waste is not dropped, scattered, or spilled into any public place. Illegal dumping is a serious offence—persons may be arrested without warrant by any police officer or public health officer (fine up to $50,000 or imprisonment for up to twelve months or both, and forfeiture of the vehicles used). Imprisonment is mandatory (between one month and one year) for a subsequent offence and a fine up to $100,000.46 Singapore is well known for its draconian anti-littering laws. It is an offence to litter any public place or public street (section 18 EPHA). The maximum fine is $1,000 for a first offence, $2,000 for a subsequent offence, and $5,000 for a third and subsequent convictions.47 The offence may be compounded for $150 if it is a first offence—the offender must attend a fifteen-minute briefing on how littering can harm the environment.48 In 1992, the EPH 40 http://www.nea.gov.sg/energy-waste/waste-management/semakau-landfill. 41 http://www.wildsingapore.com/places/semakau.htm. 42 Cap. 95 (Act 14 of 1987) 1999 Rev. Ed. See also the Codes of Practice on Environmental Health; for Environmental Control Officers; and for Licensed General Waste Collectors, available at: http://app2. nea.gov.sg/resources_home.aspx. 43 S 166/89, amended S 105/95. 44 Cap. 95 1990 Ed, Rg. 3 (amended S 186/95). 45 S 111/88, amended S 610/99. 46 These penalties were raised from a $1,000 fine to a maximum fine of $20,000 in 1996 (Act 2 of 1996, with effect from 2 February 1996 (S 38/96), and further increased in 1999 (Act.22 of 1999). 47 Sections 18(1) (a)–(g), 20(1)(c) EPHA. 48 Environmental Public Health (Notice to Attend Court) Regulations 1995 (S 449/95). The compounding of an offence (also known as a ‘composition’) under the laws of Singapore means that a charge

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singapore 307 (Corrective Work Order) (CWO) Regulations were passed, under which persons found guilty of littering may be required to clean up a public place.49 As from 2 February 1996, the power to arrest those who litter was extended to operators of public vehicles.50 In 1999, the number of hours which a person may be required to work under a CWO was increased from three hours to a maximum of twelve, but not exceeding three hours per day.51 The EPHA Part III contains provisions on public cleansing of streets, disposal of refuse, offences in respect of uncleanliness in public places, disposal facilities, and disposal and treatment of industrial waste. The EPHA contains specific provisions relating to industrial waste and its disposal (sections 24–31). The generation, collection, treatment, disposal, and storage of toxic industrial wastes is regulated by the EPH (Toxic Industrial Waste) Regulations,52 which lists toxic industrial wastes in its Schedule. NEA’s website contains Guidelines relating to applications for a collector’s licence, for transport approval, the control of biohazardous wastes, the control of tanker cleaning activities, the disposal of sludge and slop oil, as well as the electronic tracking of toxic industrial waste.53 Duties are imposed on generators and collectors.54 Singapore is party to the Basel Convention on the Transboundary Movement of Hazardous Wastes. This is implemented by the Hazardous Waste (Control of Export, Import and Transit) Act.55 Singapore is also party to the Stockholm Convention on Persistent Organic Pollutants and the Rotterdam Convention on Prior Informed Consent. Singapore acceded to the Vienna Convention on the Protection of the Ozone Layer, 1985 and the Montreal Protocol on Substances that Deplete the Ozone Layer. Today, the EPM (Ozone Depleting Substances) Order implements the London Amendment and the Copenhagen Amendment.56

14.3.4 Contaminated Sites Section 20 EPMA provides that the Minister may make regulations to control the pollution of land ‘whereby the condition of the land is so changed as to make or be likely to make the land or the produce of the land obnoxious, noxious or poisonous’. No regulations have been passed as yet. However, NEA’s Code of Practice on Pollution Control57 contain substantive provisions on the remediation of polluted sites, if the site is to be redeveloped, rezoned or re-used for a non-polluting activity.

against a person has been settled without entering a conviction. Offences that carry a light penalty may be ‘compounded’ if the law so allows. See https://singaporelegaladvice.com/law-articles/compoundingor-composition-of-offences-in-singapore/ 49 Section 447/92. See Public Prosecutor v Lim Niah Liang [1996] 3 SLR(R) 702; [1996] SGHC 265. 50 EPHA (Amendment Act) No. 2 of 1996, S 38/96. 51 EPH (Amendment Act) No. 22 of 1999. 52 S 111/88, S 305/88, S 24/89, S 197/89, S 610/99, Cap. 95 Rg 11. 53 http://www.nea.gov.sg/anti-pollution-radiation-protection/chemical-safety/toxic-industrialwaste/toxic-waste-control. 54 See ‘Management of Toxic Industrial Waste in Singapore’, available at: http://www.nea.gov.sg/docs/ default-source/anti-pollution-radiation-protection/chemical-pollution/management-of-hazardouswaste.pdf?sfvrsn=0. 55 Act 13 of 1997, Cap. 122A, 1998 Rev. Ed., supplemented by the Hazardous Waste (Control of Export, Import and Transit) Rules, No. 71/98, Rg 1, 2000 Rev. Ed. 56 Chapter 94A, S. 77, Reg. 9. 57 See n. 97.

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308 lye lin-heng

14.3.5 Noise Part VIII of the EPMA (sections 28–30) relates to noise control.58 It governs noise at construction sites and noise in the workplace. The EPM (Control of Noise from Construction Sites) Regulations 199959 regulates the noise level from construction sites over two twelvehour periods. The EPM (Vehicular Emissions) Regulations60 prescribe noise emission standards for various categories of vehicles, including motor vehicles, diesel vehicles, motorcycles, and scooters. The Workplace Safety and Health Act (WSHA)61 governs noise within factories and industrial premises. Section 44(m) of the Environmental Public Health Act recognizes noise as a form of nuisance for which a Nuisance Order may be issued by the Commissioner of Public Health. Noise includes vibrations. The making of excessive noise may also infringe section 14 of the Miscellaneous Offences (Public Order and Nuisance) Act for which a fine of $1,000 may be levied.

14.3.6 Nature Conservation Laws Singapore is well known as a ‘green city’. Indeed, this was a strategy to woo investors in the early years. Singapore has since attained considerable expertise in greening the urban environment and conserving its nature areas. Its laws protect two national parks and four nature reserves which comprise some 4.5 per cent of the land specifically protected under the Parks and Trees Act, administered by NParks. Another 300 parks are spread throughout the island and park connectors facilitate easy access.62 In 2015, Singapore made the Sisters Islands, its first marine park, and is in the course of passing laws for their protection.63 Singapore has assiduously strived to increase and enhance its greenery. It is a party to the Convention on Biological Diversity and established its National Biodiversity Centre (NBC) in 2006. NBC serves as Singapore’s one-stop centre for biodiversity-related information and activities. Singapore also initiated the Cities Biodiversity Index,64 which was adopted at the Convention on Biodiversity’s Conference of the Parties in Nagoya in 2010. The Singapore Index comprises three components; (a) Biodiversity in the City, (b) Ecosystem Services provided by the Native Biodiversity in the City, and (c) Governance and Management of Biodiversity in the City. In this form, it would function as a monitoring tool. Laws to protect Singapore’s wild flora and fauna were passed over a hundred years ago.65 Today, almost all wild fauna are protected in Singapore under the Wild Animals and

58 See http://www.nea.gov.sg/anti-pollution-radiation-protection/noise-pollution-control. 59 S. 466/1999, Cap. 94A Rg 2. 60 S. 291/99, Rg. 6, 2001 Rev. Ed. 61 Act 7 of 2006, Cap. 354A. 62 https://www.nparks.gov.sg/gardens-parks-and-nature. 63 http://www.straitstimes.com/singapore/environment/5-things-about-the-sisters-islands- singapores-first-marine-park. 64 https://www.nparks.gov.sg/biodiversity/urban-biodiversity/the-singapore-index-on-cities- biodiversity. 65 Lye Lin Heng, ‘Wildlife Protection Laws in Singapore’ [1991] SJLS 287–319; J. Chun, ‘Wildlife Law in Singapore: Protecting Wildlife in the “Garden City’ ” in R. Panjwani (ed.), Wildlife Law—a Global Perspective (ABA Publishing 2008), chapter 5.

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singapore 309 Birds Act,66 with the exception of six birds. This is administered by the Agri-Veterinary Authority (AVA), which also enforces the laws implementing CITES.67 There are laws protecting trees and other plants. The extent of protection depends on their precise location as different laws and regulations apply. The greatest protection is in nature reserves and national parks, where breaches of the law will entail a fine of up to S$50,000 or imprisonment of up to six months, or both fine and imprisonment under the Parks and Trees Act (PTA).68 Flora and fauna in public parks are protected to a lesser extent under the Parks and Trees Act. Separate laws protect parks in Sentosa Island, and parks administered by the Jurong Town Corporation (JTC) and the catchment area parks managed by PUB. Trees with a girth of more than one metre measured a metre from the ground, growing on vacant or gazetted land cannot be cut down without the permission of the Commissioner of Parks and Recreation (fine up to $10,000 (increased from $2,000 in 1994)). There are laws governing particular areas in Singapore, such as tree conservation areas and heritage roads,69 and bird sanctuaries.70

14.3.7 Climate Change and Future Challenges Singapore is concerned about climate change, particularly its impact on sea level rise, water resources, biodiversity and greenery, public health, increased temperatures leading to increased energy consumption for air cooling (the urban heat island effect), and food s ecurity. It has undertaken two National Climate Change Studies—in 2013 and 2015. The first phase of the 2015 study focused on the impacts of sea level rise and increased rainfall. The second phase made use of the projections from Phase 1 to examine the climate change impacts on areas such as water resources and drainage, biodiversity and greenery, network infrastructure, and building infrastructure.71 In the case of energy use, the Energy Conservation Act (ECA) was passed in 2012 ‘to mandate energy efficiency requirements and energy management practices to promote energy conservation, improve energy efficiency and reduce environmental impact’.72 It is administered by the NEA. The Act requires fuel efficiency labelling for motor vehicles73 and energy labelling and minimum performance standards for clothes dryers, air conditioners, refrigerators, television sets, and lamps/light bulbs.74 It requires companies consuming more than 15 gigawatt-hours or 54 terajoules per calendar year to appoint an energy manager, monitor 66 Ordinance 5 of 1965, Cap. 351 Rev. Ed. 2000. See also Wild Animals (Licensing) Order and the Wild Animals and Birds (Bird Sanctuaries) Order. 67 Endangered Species (Import and Export) Act, Act 5 of 2006, Cap. 92A, 2008 Rev. Ed. 68 Act 4 of 2005, Cap. 216, 2006 Rev. Ed. 69 Parks and Trees (Preservation of Trees) Order, Cap. 216, OR 1; Parks and Trees (Heritage Roads Green Buffers) Order, Cap. 216 OR 2. 70 Wild Animals and Birds (Bird Sanctuaries) Order, Cap. 351, OR 1. 71 https://www.nccs.gov.sg/climate-change-and-singapore/national-circumstances/impact-climatechange-singapore. 72 Act 11 of 2012, Cap. 92C, 2014 Rev. Ed. 73 ECA Part IV Division I, ss. 39–43; EC (Fuel Economy Labelling) Order, S 307/2012, Energy Conservation (Motor Vehicles Subject to Fuel Economy Requirements) Order, S309/2012. 74 ECA Part III Division 1, sa. 10–20, EC (Registrable Goods) Order, S 557/2013.

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310 lye lin-heng and report energy usage and greenhouse emissions, and submit energy efficiency plans.75 It also requires transport facility operators to keep proper records and furnish reports on energy consumption, energy production, and greenhouse gas (GHG) emissions.76 As noted earlier, Singapore will implement a carbon tax from 2019.77

14.4 Administrative and Judicial Framework 14.4.1 Government Agencies Singapore’s Ministry of the Environment (ENV) was established following the Stockholm conference on the Human Environment, in 1972. Soon thereafter, Singapore passed its first pollution laws—the Clean Air Act and the Water Pollution Control and Drainage Act. Prior to 1972, environmental matters were the province of the Ministry of Health until the formation of the ENV. It should be noted that an Anti-Pollution Unit (APU) was established two years earlier in 1970 and brought under the purview of the Prime Minister’s office. It was not until 1986 that the APU was merged with the Environment Ministry. This is a clear indication of the importance placed on pollution control by Singapore’s first Prime Minister and the architect of its success, Mr Lee Kuan Yew. On 1 July 2002, the ENV was renamed the Ministry of Environment and Water Resources (MEWR), with two statutory boards—the National Environment Agency78 (NEA) and the Public Utilities Board79 (PUB). These two boards have a joint mission: to deliver and sustain a clean and healthy environment and water resources for all in Singapore. NEA takes charge of pollution, public health, energy, waste management, and meteorological services; PUB is responsible for all matters relating to water, including water supply, drainage, and the reuse of water. The Ministry of National Development80 houses a number of statutory boards, notably the National Parks Board (NParks),81 the Urban Redevelopment Authority (URA),82 the Housing and Development Board (HDB),83 the Building and Construction Authority (BCA),84 and the Agri-Food and Veterinary Authority (AVA).85 NParks is responsible for greening Singapore, and takes charge of its nature reserves, national parks, and public parks. The URA takes charge of land use planning and conservation. HDB is Singapore’s public housing agency and has successfully housed 82 per cent of its population in high rise apartments purchased on ninety-nine-year leases. The HDB also rents its apartments on short-term tenancies at low rents to those who cannot afford to purchase, but continuous efforts are made to help these persons move towards home ownership. The BCA is responsible for the built environment while AVA ensures food safety and supply, safeguards the health 75 ECA Part III Division 2, ss. 21–32; EC (Energy Management Practices) Regulations, S246/2013; Energy Conservation (Registrable Corporations) Order, S 248/2013. 76 ECA Part IV, Divisions 2, ss. 44–52, EC (Transport Facilities Operators) Order, S807/2013. 77 See n. 23. 78 http://www.nea.gov.sg/. 79 https://www.pub.gov.sg/. 80 http://app.mnd.gov.sg/. 81 https://www.nparks.gov.sg/. 82 https://www.ura.gov.sg/uol/. 83 http://www.hdb.gov.sg/cs/infoweb/about-us. 84 https://www.bca.gov.sg/. 85 http://www.ava.gov.sg/.

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singapore 311 and welfare of animals and plants, and facilitates agri-trade. AVA enforces Singapore’s CITES (Convention on International Trade in Endangered Species of Wild Flora and Fauna) laws via the Endangered Species (Import and Export) Act.86 AVA also enforces the Wild Animals and Birds Act87 and the Animals and Birds Act,88 while NParks enforces the Parks and Trees Act.89 NParks also takes charge of Singapore’s first marine sanctuary (Sister’s Island) although marine conservation laws have not yet been passed. The work of these two Ministries have provided a clean, healthy, and pleasant e nvironment for all residents in Singapore. This has helped Singaporeans attain an average life expectancy of 85.21 years.90 It must be emphasized that government agencies work well together, and through the years, a system of collaboration and effective management has been established which makes Singapore a fine example of a city with a good environmental management system (EMS). This stems first and foremost from sound land use planning.

14.4.2 Land Use Planning 14.4.2.1 In General MEWR adopts three key strategies in managing the environment: prevention, enforcement, and monitoring. A fourth strategy that is increasingly used is public education. Land use planning is at the forefront of the strategy of ‘prevention’, as industries are carefully sited away from residential and commercial areas. The British gave Singapore its first Master Plan in 1958, established by the Planning Ordinance of 1959.91 This emphasized comprehensive development through physical planning. Land use was controlled by zoning and density/plot ratios. All land was zoned for a particular use. Landowners who wish to change the use of their land or to develop their land had to comply with the requirements of the Master Plan. The Ordinance provided the machinery for the Planning Authority to plan, prepare, and review the Master Plan every five years. The Master Plan, drawn up during the early transition years when Singapore was just emerging from colonial rule, was soon found wanting. Based on traditional planning, it was static and inadequate for a city embarking on dynamic growth through industrial development. A new form of planning was needed—a long-range plan that was able to guide and coordinate the future physical development of the Republic. Thus emerged the Concept Plan 1971, which projected Singapore’s needs in 1991, twenty years ahead. This was followed by the Revised Concept Plan 1991 focused on sustaining economic growth and providing a good quality of life, with Singapore as a ‘Tropical City of Excellence, an exotic island and an 86 Act 6 of 2006, Cap. 92A. 87 Ordinance 5 of 1965, Cap. 351. 88 Ordinance 5 of 1965, Cap. 7. 89 Act 4 of 2005, Cap. 216. 90 In 2017, Singapore ranked third among the world’s highest life expectancy rates (below Monaco and Japan), see http://www.geoba.se/population.php?pc=world&type=15. 91 See Lye Lin Heng, ‘Landscape Protection Laws in the Evolution of Modern Singapore’ in A. H. Benjamin (ed.), Landscape, Nature and Law—A Tribute to Alexander Kiss (Brazil: Law for a Green Planet Institute, June 2005), 119–34; and also Lye Lin-Heng, ‘Land Use Planning, Environmental Management and the Garden City as an Urban Development Approach in Singapore’ in N. Chalifour, J. Nolon, Lye Lin Heng, and P. Kameri-Mbote (eds.), Land Use for Sustainable Development (USA: Cambridge University Press, 2006), 374–96). See also N. Khublall and B. Yuen, Development Control and Planning Law in Singapore (Singapore: Longman, 1991).

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312 lye lin-heng international investment hub’.92 This was replaced by Concept Plan 2001 entitled ‘Towards a Thriving World Class City in 2001’, drafted after taking into account public feedback.93 It looked at creating a thriving world-class city for the next forty to fifty years in the twenty-first century, for a projected population of 5.5 million. As the Concept Plans are only strategic plans, serving to guide and coordinate long-term public investments, more detailed plans are required for the building of industrial estates, new towns, and for the redevelopment of the central areas. These take the form of Development Guide Plans (DGPs) which contain details on planning and development at the local level. The DGPs set out land use details, development control parameters, and urban design guidelines. They aim to optimize land use development potential at the local level and to guide both public and private sector development.94 DGPs show the permissible land use and density for every parcel of land in Singapore. They contain detailed development guidelines on land use, including plot ratios, building height, urban design, urban conservation, and road networks. Each DGP is envisaged to have a population of 150,000, served by a town centre. Each DGP area is, in turn, subdivided into planning sub-zones, each served by a neighbourhood commercial centre. The size of the DGP areas and the sub-zones vary depending on the land uses, proximity to the Central Area, and the existing physical separators such as expressways, rivers/canals, major open spaces, etc.95 Presently, there are fifty-five DGPs for the entire Republic, including eleven in the Central Area. Each DGP that is completed is gazetted and replaces the corresponding part of the Master Plan. The Urban Redevelopment Authority (URA) formulates and implements these plans. A Master Plan Committee (MPC) chaired by the Chief Planner, with representatives from relevant government ministries carefully screens all major land developments, ensuring that proposals comply with the Master Plan and Concept Plan. Two new island-wide plans were introduced to guide the planning of greenery and identity for the Master Plan 2003— the Parks and Waterbodies Plan and the Identity Plan. These two plans presented ideas on how to enhance greenery and identity, so as to improve the living environment. They were drawn up based on earlier public feedback from the Concept Plan 2001, which showed that the public valued identity and greenery.

14.4.2.2 Judicious Siting of Industries Singapore’s environmental management system starts with the identification of the types of industries that can be allowed into the city-state. MEWR works closely with the Economic Development Board (EDB)96 and the Ministry of Trade and Industry (MTI) to decide what kinds of industries are needed for the economic development of the city-state. While the 92 Living the Next Lap (Singapore Urban Redevelopment Authority, 1991); see also M. Perry, L. Kong, and B. Yeoh, Singapore: A Developmental City-State ( England: John Wiley & Sons, Ltd, 1997). 93 ‘URA Releases Concept Plan 2001 After Extensive Consultations’, 20 July 2001, available at: http:// www.ura.gov.sg/pr/text/pr01-34.html. 94 See P. Shekhu, ‘The Making of the New Singapore Master Plan’ in B. Yuen (ed.), Planning Singapore: From Plan to Implementation (Singapore Institute of Planners, August 1998). 95 J. Keung ‘Planning for Sustainable Urban Development: The Singapore Approach’ in Yuen, Planning Singapore. 96 The EDB was established in 1961 to spearhead Singapore’s industrialization. It is Singapore’s leading government agency for planning and executing strategies towards shaping the future of Singapore’s business and economy. See https://www.edb.gov.sg/content/edb/en/about-edb.html.

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singapore 313 EDB identifies the kinds of industries that Singapore would like to attract, discussions are held with other Ministries and organizations to ascertain if these industries can be allowed into Singapore and if so, where they should be located. Industries in Singapore are divided into four categories: clean, light, general, and special.97 Under the Planning Guidelines, industries are located in areas zoned only for industrial use, within which are zones for special, general, and light industries. Special industries (those which have the greatest polluting potential) must be located furthest away from residential areas. Buffer zones are used to distance them from residential areas, the distance varying with the degree of polluting capacity of the industry (ranging from 50 metres to 1 kilomemetre or more). Clean industries do not require a buffer zone. Thus, the location or siting of an industrial factory or plant that is allowed to start in Singapore is dependent on its polluting capacity. The URA works closely with NEA’s Pollution Control Department (PCD) on ascertaining possible sites for potentially polluting industries. PCD will examine measures to control air, water, and noise pollution, and to manage industrial waste and hazardous substances. A proposed industry will only be allowed to set up if it is sited in an appropriate industrial estate and can comply with pollution control requirements. Major polluting uses are grouped together and sited as far away as possible from population c entres (e.g. chemical and petro-chemical industries are located in off-shore islands). Technical requirements are imposed at the Building Plan stage to ensure that the necessary pollution control equipment and facilities are incorporated in the design and that they comply with the NEA’s requirements. Upon completion of a project, an application must be made to PCD to obtain either a Temporary Occupation Permit (TOP) or a Certificate of Statutory Completion (CSC). This will be issued by the PCD on behalf of the departments of Sewerage, Drainage, Environmental Health and Pollution Control only when satisfied that all the technical requirements imposed have been complied with. Only then will the factory be given a licence to operate. Singapore does not have a law that mandates environmental impact assessments (EIA). The nearest approximations are sections 26 and 36 of the EPMA. Section 26 requires an owner or occupier of ‘hazardous installations’ to ‘carry out impact analysis studies’. A ‘hazardous installation’ is not defined. Section 36 empowers the PCD to require any person intending to carry out any activity that is ‘likely to cause substantial pollution of the environment or increase the level of such pollution’, to ‘carry out a study on environmental pollution control and related matters’. In practice, the Master Plan Committee requires an EIA if any major project or development is potentially highly polluting. There is no requirement that EIAs conducted have to be disclosed to the public. However, as these assessments only focus on pollution, they fall short of the comprehensive studies required in a proper EIA.98 No cases have been brought before the courts challenging EIA reports or insisting that they be disclosed to the public. It would appear that Singapore’s leading NGO for the environment, the Nature Society, Singapore (NSS) prefers to work with the government as far as possible, though it has published papers setting out its own position in controversial cases such as the proposed cross-island mass transit system which would cut into legally protected nature reserves, and the redevelopment of a historic gravesite, Bukit Brown, 97 See Code of Practice on Pollution Control (2013). Singapore Standards SS 593: 2013. 98 See case studies and critique in Lye Lin-Heng, ‘Land Use Planning, Environmental Management and the Garden City as an Urban Development Approach in Singapore’.

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314 lye lin-heng which is opposed by both the Heritage Society and by NSS.99 In recent years, the government has been more consultative and EIA reports have been shared with the public as in the case of the cross-island mass transit railway system.100

14.5 Conclusion While Singapore continues to ensure it remains ‘clean and green’, there are considerable tensions between the need to develop and the need to conserve nature.101 The links to nature have become more and more tenuous as Singapore continues to move towards rapid urbanization. While these tensions remain, it cannot be denied that valiant efforts have been made to clean up as well as reduce pollution and improve the living environment of the people of Singapore; and that these efforts have been a great success. An Environmental Management System is clearly in place, and the laws passed on pollution control and nature conservation are an important part of this system. The EMS could be much strengthened if laws were passed mandating EIAs and recycling. These are two outstanding inadequacies in an otherwise well-functioning system.

14.6 Selected Bibliography Chun, J., ‘Wildlife Law in Singapore: Protecting Wildlife in the “Garden City’ ” in R. Panjwani (ed.). Wildlife Law—a Global Perspective (American Bar Association 2008). Khublall, N., and B. Yuen, Development Control and Planning Law in Singapore (Singapore: Longman, 1991). Lye Lin-Heng, ‘A Fine City in a Garden—Environmental Law and Governance in Singapore’ [2008] Singapore Journal of Legal Studies [2008] 86–117. Lye Lin-Heng, ‘Environmental Taxation in the Management of Traffic in Singapore’ in Lin-Heng Lye and ors (eds), Critical Issues in Environmental Taxation-International and Comparative Perspectives, Vol. VII (Oxford: Oxford University Press, 2009) 205–225. Lye Lin-Heng, ‘Singapore’ in N. Robinson et al. (eds.), Comparative Environmental Law & Regulation (USA: Thomson Reuters Westlaw, 2015). Lye Lin Heng, ‘Wildlife Protection Laws in Singapore’ [1991] Singapore Journal of Legal Studies 287–319. Lye Lin Heng, ‘Landscape Protection Laws in the Evolution of Modern Singapore’ in A. H. Benjamin (ed.), Landscape, Nature and Law—A Tribute to Alexander Kiss (Brazil: Law for a Green Planet Institute, June 2005), 119–34. A. K. J. Tan, ‘The ASEAN Agreement on Transboundary Haze Pollution: Prospects for Compliance and Effectiveness in Post-Suharto Indonesia’ (2005) 13 New York University Environmental Law Journal 647. Tay, S. S. C., ‘Southeast Asian Fires: The Challenge for International Environmental Law and Sustainable Development’ (1998–99) 11 Georgetown International Environmental Law Review 241. 99 https://www.nss.org.sg/documents/(NSS)%20CrossIsland%20Line%20Position%20Paper. pdf; https://www.nss.org.sg/documents/Nature%20Society%27s%20Position%20on%20Bukit%20 Brown.pdf. 100 https://www.lta.gov.sg/content/dam/ltaweb/corp/PublicTransport/files/Final%20SI%20EIA%20 Executive%20Summary.pdf. 101 See the case studies mention in Lye Lin-Heng, ‘A Fine City in a Garden’, at 86–117, 108–112. More recent controversies involve the Bukit Brown site and the proposed cross-island railway.

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chapter 15

Sou th A fr ica Jan Glazewski

15.1 Allocation of Powers

15.1.1 Introduction 15.1.2 International Law and South African Domestic Law 15.1.3 The Bill of Rights, the Environmental Right, and Sustainable Development 15.1.4 Other Relevant Rights in the Bill of Rights 15.1.5 Distribution of Competences Among National, Provincial, and Local Government

315

315 316 317 319 321

15.2 Structure and Substance of Environmental Law

322

15.3 Implementation Framework

325

15.2.1 The National Environmental Management Act (NEMA) 15.2.2 NEMA Principles and Sectorial Laws 15.3.1 Co-operative Government in Practice 15.3.2 Relevant Governmental Departments—From Integration to Sectorialization

322 323 325

328

15.4 Selected Problem: The ‘One Environmental System (OES)’

330

15.5 Conclusion

332

15.6 Selected Bibliography

333

15.1 Allocation of Powers 15.1.1 Introduction In April 1994 South Africa removed over 300 years of racially based government authority by adopting a democratic constitution. In so doing it transformed from a system of parliamentary sovereignty to a constitutional democracy underpinned by a progressive Bill of

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316 jan glazewski Rights contained in chapter 2 of the Constitution which is now the supreme law.1 The Bill of Rights contains, among other things, an environmental right,2 which includes reference to sustainable development which in turn has been endorsed in a number of judicial decisions. Moreover it resulted in the enactment of the framework National Environmental Management Act 107 of 1998 (NEMA), which has provided the springboard for the development of environmental law in South Africa including a suite of sectoral environmental legislation since the attainment of democracy. In short the inclusion of an environmental right in the Constitution has put the discipline of environmental law which previously enjoyed scant attention squarely on the judicial map in South Africa.3 Notwithstanding these developments, the historic Roman-Dutch legal system, a mixed legal system reflecting aspects of both the European civil law and the English common law traditions was retained.4 This Roman-Dutch common law, supplemented by a growing body of statute law, the Constitution, and judicial pronouncements, make up the body of South African law including the nascent and developing branch of environmental law as outlined in this chapter.

15.1.2 International Law and South African Domestic Law Since the advent of democracy South Africa has embraced international law generally including international customary law principles and has also adopted numerous conventions including international environmental treaties. These include the United Nations Framework Convention on Climate Change (UNFCCC), Kyoto Protocol, the Paris Agreement, the Convention on Biological Diversity, and many others.5 Chapter 14 of the Constitution formalizes this elevated status of international law in South African domestic law by first, confirming the common law position that customary international law is recognized as law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament, and deals with the respective rights and obligations of the executive and legislative arms of government regarding the adoption of international agreements.6 1 Section 2 Constitution of the Republic of South Africa, 1996. 2 Section 24 Constitution reproduced in section 15.1.3. 3 See e.g. L. J. Kotzé and A. Du Plessis, ‘Some Brief Observations on Fifteen Years of Environmental Rights Jurisprudence in South Africa’ (2010) Journal of Court Innovation 157; L. J. Kotzé, ‘The Judiciary, the Environmental Right and the Quest for Sustainability in South Africa: A Critical Reflection’ (2007) 16(3) Review of European Community and International Law 298. 4 The civil law component derives from Dutch occupation of the Cape of Good Hope, from around 1652, which resulted in the introduction of Roman-Dutch law to the Cape; and the common law component from the subsequent defeat of the Dutch settlers by the British. On the South African legal system and its history and development generally, see L. M. Du Plessis, An Introduction to Law (Cape Town: Juta & Co, 3rd edn. 1999); H. R. Hahlo and E. Kahn, The South African Legal System and its Background (Cape Town: Juta & Co, 1968); H. R. Hahlo and E. Kahn, The Union of South Africa: The Development of its Laws and Constitution (London: Stevens & Sons/Cape Town Juta & Co, 1960); B. Edwards, Introduction to South African Law and Legal Theory (Durban: Butterworths, 2nd edn. 1995); and R. Zimmermann and D. Visser, Southern Cross: Civil Law and Common Law in South Africa (Cape Town: Juta & Co, 1996). 5 Jan Glazewski enumerates over fifty international environmental conventions which South Africa has adopted or which are relevant—see Annexure 1 to J. Glazewski, Environmental Law in South Africa (Durban: LexisNexis, Issue 6 2018). 6 Sections 231–232 Constitution.

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south africa 317 In addition, it provides that when interpreting legislation, courts must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.7 This section is complemented by a provision in the Bill of Rights, which states that ‘in interpreting the Bill of Rights, a court, tribunal or forum . . . must consider international law’.8 Finally, one of the national environmental management principles of the framework NEMA, referred to above, is devoted to international obligations and agreements, providing that ‘[g]lobal and international responsibilities relating to the environment must be discharged in the national interest’.9 This acknowledges that South Africa’s environmental responsibilities form part of its broader international obligations and generally illustrates that international ‘soft’ and hard law has fundamentally shaped the development of the subject in South Africa as elaborated on below.

15.1.3 The Bill of Rights, the Environmental Right, and Sustainable Development Although a number of underlying common law principles are relevant, the foundation for South African environmental law is the environmental clause contained in the Bill of Rights contained in Chapter 2 of the Constitution. It provides: Everyone has the right— (a) to an environment that is not harmful to their health or well-being; and (b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that— prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development’10 (emphasis added).

Of particular significance is the exhortation for secure ‘ecologically sustainable development’,11 the lodestar that has guided the development of environmental law both internationally and since the advent of democracy in South Africa and around which the country’s environmental jurisprudence has been fashioned. Sustainable development is 7 Section 233 Constitution. 8 Section 39(1)(b) Constitution. In Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC); 2011 (7) BCLR 651 (CC), para 205, the court stated: ‘ . . . any obligation binding upon the Republic under international law must not conflict with express provisions of the Constitution, including those in the Bill of Rights’. See also M. E. Olivier, ‘Enforcement of International Environmental Law’ (2002) 9 South African Journal of Environmental Law and Policy 151. 9 NEMA, s. 2(4)(n). 10 Section 24 Constitution. 11 Section 24(b)(iii) Constitution. See also Department of Environmental Affairs and Tourism National Framework for Sustainable Development in South Africa (2008); Department of Environmental Affairs Draft National Strategy on Sustainable Development and Action Plan 2010–2014 (GN 393 in Government Gazette No. 33184, 14 May 2012).

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318 jan glazewski also the foundation stone of the framework NEMA and other environmental legislation outlined in section 15.2. In BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation and Land Affairs,12 the Court stated: [S]ustainable development constitutes an integral part of modern international law and will balance the competing demands of development and environmental protection. The concept of ‘sustainable development’ is the fundamental building block around which environmental legal norms have been fashioned, both internationally and in South Africa . . . Pure economic principles will no longer determine, in an unbridled fashion, whether a development is acceptable. Development, which may be regarded as economically and financially sound, will, in future, be balanced by its environmental impact, taking coherent cognisance of the principle of intergenerational equity and sustainable use of resources in order to arrive at an integrated management of the environment, sustainable development and socio-economic concerns.13

In Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province, and Others,14 the Constitutional Court considered the nature of sustainable development in detail. Ncgobo J first placed sustainable development in the context of international law, noting that the concept has received approval of the International Court of Justice (ICJ) and citing with approval Weeramantry J, where he stated: Throughout the ages, mankind has for economic and other reasons, constantly interfered with nature. In the past, this was often done without consideration of the effect upon the environment. Owing to new scientific insights and to growing awareness of the risks for mankind—for present and future generations—of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when states contemplate new activities, but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development.15

Ngcobo J then went on to locate ‘sustainable development’ in the context of South African law noting: The Constitution recognises the interrelationship between the environment and development; indeed it recognises the need for the protection of the environment while at the same time it recognises the need for social and economic development. It contemplates the integration of environmental protection and socio-economic development. It envisages that environmental considerations will be balanced with socio-economic considerations through the ideal of 12 2004 (5) SA 124 (W). 13 At 144A–144C. 14 2007 (6) SA 4 (CC); 2007 (10) BCLR 1059 (CC) (cited hereafter as the Fuel Retailers case); see ‘Special Issue: Discussion of the Constitutional Court Decision in Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province, and Others’ (2008) 15(1) South African Journal of Environmental Law and Policy 3–182. 15 The Fuel Retailers case, at [140], 201.

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south africa 319 sustainable development. This is apparent from section 24(b)(iii) which provides that the environment will be protected by securing ‘ecologically sustainable development and use of natural resources while promoting justifiable economic and social development’. Sustainable development and sustainable use and exploitation of natural resources are at the core of the protection of the environment.16

Sachs J, in a dissenting judgment, expressed the notion of ‘sustainable development’ in similarly succinct terms: Sustainable development presupposes accommodation, reconciliation and (in some instances) integration between economic development, social development and environmental protection. [Footnote omitted] It does not envisage social, economic and environmental sustainability as proceeding along three separate tracks, each of which has to be weighed separately and then somehow all brought together in a global analysis. The essence of sustainable development is balanced integration of socio-economic development and environmental priorities and norms. [Footnote omitted] Economic sustainability is thus not part of a check-list that has to be ticked off as a separate item in the sustainable development enquiry. Rather, it is an element that takes on significance to the extent that it implicates the environment. When economic development potentially threatens the environment it becomes relevant to NEMA. Only then does it become a material ingredient to be put in the scales of a NEMA evaluation.17

15.1.4 Other Relevant Rights in the Bill of Rights The Bill of Rights chapter of the Constitution also includes a number of other rights which indirectly promote sustainable development. These include: the Right to Just Administrative Action,18 which states that ‘everyone has the right to administrative action that is lawful, reasonable and procedurally fair’. This right is, effectively, a right to ‘administrative justice’ and provides the springboard for the judicial review of numerous administrative actions and reported environmental decisions.19 This right is also relevant in the environmental management context where a multiplicity of national and provincial government agencies are inevitably involved, requiring comprehensive, well-informed, and integrated decision-making.20 In the Fuel Retailers case referred to above the Constitutional Court noted further that: The Constitution recognises the interrelationship between the environment and development; indeed it recognises the need for the protection of the environment while at the same time it recognises the need for social and economic development. It contemplates the integration of environmental protection and socio-economic development.21 16 Ibid., at [45], 22B–22D. 17 Ibid., at [113], 45A–B. 18 Section 33 Constitution. 19 The constitutional right to administrative justice is fleshed out in the Promotion of Administrative Justice Act 3 of 2000 (PAJA), See generally Administrative Justice and the Environment, Chapter 5.4 in Glazewski, Environmental Law in South Africa. 20 See also Earthlife Africa Johannesburg v The Minister of Environmental Affairs & Others [2017] 2 All SA 519 (GP); Earthlife Africa Johannesburg and South African Faith Communities’ Environment Institute v Minister of Energy and Others [2017] 3 All SA 187 (WCC) both referred to in section 15.5. 21 The Fuel Retailers case, at [45]. See also MEC for Agriculture, Conservation, Environment and Land Affairs, Gauteng v Sasol Oil [2006] 2 All SA 17 (SCA).

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320 jan glazewski A further right to Access to Information,22 provides that interested and potentially affected parties have the right not only to information held by the state but also to information held by private parties. This right is subject to the proviso that the information is required to protect any other right in the Bill of Rights, of the requesting party; thus if the request for information were for environmental reasons, the environmental right would cover this requirement. The right includes the right of interested and potentially affected parties to have full disclosure as well as the right to comment at every step of the decision-making process.23 The practical benefit of this right for environmental NGOs was vividly illustrated in Arcelormittal South Africa and Another v Vaal Environmental Justice Alliance24 where the Supreme Court of Appeal upheld the applicant NGOs right of access to information to the respondent mining company’s pollution records. The right to ‘health care, food, water and social security’25 imposes a positive duty on the state to ‘take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these socio-economic rights’.26 The right to water, in particular ‘sufficient water’,27 is particularly pertinent in regard to the semi-arid areas of the country and the periodic drought conditions which prevail in South Africa and the region. At the time of writing (April 2017), South Africa is experiencing one of the worst droughts in thirty years with more than 2.7 million households facing water shortages across the country.28 This right was in sharp focus before the Constitutional Court in Mazibuko and Others v City of Johannesburg and Others,29 where the appellants, residents in Soweto, challenged the constitutionality of the city’s provision of six kilolitres of water per household per month (the Free Basic Water Policy) as well as the city’s installation of prepaid water meters. The applicants argued that the provision of 25 kilolitres of water per person per day (six kilolitres per household per month) was not sufficient and that 50 litres per person per day is what is required for ‘dignified life’.30 The Court in this case, and on the basis of the particular facts before it, was of the opinion that ‘it is institutionally inappropriate for a court to determine precisely what the achievement of any particular social and economic right entails and what steps government should take to ensure the progressive realisation of the right’.31 This decision has been criticized by leading scholars who argue that the Court failed ‘to give any independent significance to the right of access to sufficient water in s[ection] 27(1) (b) . . . [which is instead] . . . subsumed within the overarching qualification of reasonableness in s[ection] 27(2)’.32

22 Section 32 Constitution. 23 Earthlife Africa (Cape Town) v DG: DEA&T and Eskom 2005 (3) SA 156 (C). 24 Vaal Environmental Justice Alliance v Appeal Company Secretary, ArcelorMittal SA 2015 (1) SA 515 (SCA). 25 The title of s. 27 Constitution. 26 Section 27(2) Constitution. 27 Section 27(1)(b) Constitution. 28 A. Essa, ‘South Africa in midst of “epic drought”’ (4 November 2015), available at: http://www. aljazeera.com/news/2015/11/south-africa-midst-epic-drought-151104070934236.html. 29 2010 (4) SA 1 (CC) (cited hereafter as the Mazibuko case). See also Mazibuko and Others v City of Johannesburg and Others [2008] 4 All SA 471 (W) and City of Johannesburg and Others v Mazibuko and Others 2009 (3) SA 592 (SCA). 30 The Mazibuko case, at [51]. 31 Ibid., at [61]. 32 S. Liebenberg, Socio-Economic Rights: Adjudication under a Transformative Constitution (Cape Town: Juta & Co, 2010), 467.

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south africa 321

15.1.5 Distribution of Competences Among National, Provincial, and Local Government Chapter 3 of the Constitution titled Co-operative Government provides the starting point for considering the competencies of national, provincial and local ‘spheres’ of government as they are referred to in the Constitution. National government (Parliament, the President and the national Executive’) are dealt with in Chapters 4 and 5, the provinces in Chapter 6 (‘Provinces’),33 and local authorities in Chapter 7 (‘Local Government’) of the Constitution. Of particular relevance to environmental governance is a principle in Chapter 3 which provides that: [a]ll spheres of government and all organs of state within each sphere must— . . . (g) exercise their powers and perform their functions in a manner which does not encroach on the geographical, functional or institutional integrity of government in another sphere.’34

In The Premier of the Province of the Western Cape v The President of the RSA,35 Chaskalson P pointed out that this subsection: is concerned with the way power is exercised, not with whether or not a power exists. That is determined by provisions of the Constitution . . . and . . . although the circumstances in which section 41(1)(g) can be exercised to defeat the exercise of a lawful power are not entirely clear, the purpose of the section seems to be to prevent one sphere of government using its powers in ways which would undermine other spheres of government, and prevent them from functioning effectively.36

This is significant amongst other reasons because it reflects a fundamental departure from the past in that the three traditional spheres of government—national, provincial, and local government—are no longer regarded as hierarchical tiers with national government at the helm, but rather as three ‘distinctive, interdependent and inter-related’ spheres of government.37 In Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council,38 a case concerning the imposition of a uniform rates system by the transitional metropolitan council in its four metropolitan substructures (although decided under the Interim Constitution, the Constitutional Court’s comments on local government are as applicable to the final Constitution), in finding that the law-making powers of local authorities were not subject to judicial review under the administrative justice clause of the Interim Constitution, the Court held that ‘the constitutional status of a local government is thus materially different to what it was when parliament was supreme, when not only the powers but the very existence of local government depended on superior legislatures’.39 How the relationship 33 Sections 103–150 Constitution. 34 Section 41(1)(g) Constitution. 35 1999 (4) BCLR 382 (CC). 36 Ibid., at [57]–[58], 401–2. 37 Section 40(1) Constitution. 38 1998 (12) BCLR 1458 (CC) (cited hereafter as the Fedsure Life Assurance case). 39 Ibid., at [38], 1477.

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322 jan glazewski between local, provincial, and national spheres of government has turned out in the environmental field is fleshed out in section 15.3. Before doing so, the main legislation and the interactions between these three spheres is outlined.

15.2 Structure and Substance of Environmental Law 15.2.1 The National Environmental Management Act (NEMA) The framework NEMA takes up the exhortation for ‘sustainable development’, first by defining the notion as ‘the integration of social, economic and environmental factors into planning, implementation, and decision-making so as to ensure that development serves present and future generations’.40 The NEMA goes on to set out and embed an all-important set of underlying national environmental management principles by providing that ‘development must be socially, environmentally and economically sustainable’.41 Significantly, in the context of cooperative government outlined above, the opening section,42 titled ‘Principles’ commences: The principles set out in this section apply throughout the Republic to the actions of all organs of state that may significantly affect the environment . . . 43

To the best of the writer’s knowledge no other legislative provision is in place in South Africa where a statute administered by one government department imposes a general duty on other government departments along the above lines. The key question, which is beyond the scope of this contribution however, is: what has the effect of this section been, if any? These national environmental management principles are then elaborated on. First, sustainable development is elaborated on by providing that the notion: requires the consideration of all relevant factors including the following: that the disturbance of ecosystems and loss of biological diversity are avoided; or, where they cannot be altogether avoided, are minimised and remedied; that pollution and degradation of the environment are avoided, or, where they cannot be altogether avoided, are minimised and remedied; that the disturbance of landscapes and sites that constitute the nation’s cultural heritage is avoided, or where it cannot be altogether avoided, is minimised and remedied; that waste is avoided, or where it cannot be altogether avoided, is minimised and re-used or recycled where possible and otherwise disposed of in a responsible manner;

40 NEMA, s. 1(1)(xxix). 41 NEMA, s. 2(3). 42 NEMA, s. 2. 43 NEMA, s. 2(1).

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south africa 323 that the use and exploitation of non-renewable natural resources is responsible and equitable, and takes into account the consequences of the depletion of the resource; that the development, use and exploitation of renewable resources and the ecosystems of which they are part do not exceed the level beyond which their integrity is jeopardised; that a risk-averse and cautious approach is applied, which takes into account the limits of current knowledge about the consequences of decisions and actions; and that negative impacts on the environment and on people’s environmental rights be anticipated and prevented, and where they cannot be altogether prevented, are minimised and remedied.44

Among other things this subsection provides for the internationally recognized precautionary approach, the polluter-pays principle, the prevention principle, and others. Second, there follow a number of principles which flesh out the notion of sustainable development further.

15.2.2 NEMA Principles and Sectorial Laws The NEMA proceeds by setting out at least a further dozen environmental management principles.45 These include the public trust doctrine which is made manifest in the provision that: [t]he environment is held in trust for the people, the beneficial use of environmental resources must serve the public interest and the environment must be protected as the people’s common heritage.46

This particular principle has not been subject to judicial interpretation but has infused subsequent other resource-related legislation including the National Water Act 36 of 1998 which includes a section which states that the national government is the public trustee of the nation’s water resources and must ensure ‘that water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner for the benefit of all persons and in accordance with its constitutional mandate’.47 The public trust doctrine also underlies the main mining legislation namely the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA), which in a section titled ‘Custodianship of nation’s mineral and petroleum resources’,48 provides that: (1) [m]ineral and petroleum resources are the common heritage of all the people of South Africa and the State is the custodian thereof for the benefit of all South Africans. (2) As the custodian of the nations’ mineral and petroleum resources, the State, acting through the Minister may, (a) grant, issue, refuse, control, administer and manage any right or permission provided for in the Act (b) . . . determine and levy, any fee or consideration payable . . . 44 NEMA, s. 4(a). 45 NEMA, s. 2(4)(b)–(r). 46 NEMA, s. 2(4)(o). 47 National Water Act, s. 3(1). 48 National Water Act, s. 3.

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324 jan glazewski (3) The Minister must ensure the sustainable development of South Africa’s mineral and petroleum resources within a framework of national environmental policy, norms and standards while promoting economic and social development. Sustainable development also underlies the National Environmental Management: Biodiversity Act 10 of 2004, which defines ‘sustainable’ in relation to the use of a biological resource as the use of such resource in a way and at a rate that: (a) would not lead to its long term decline; (b) would not disrupt the ecological integrity of the ecosystem in which it occurs; and (c) would ensure its continued use to meet the needs and aspirations of present and future generations of people.49

The National Environmental Management: Waste Act 59 of 2008 (Waste Act) is similarly underpinned by the concept, stating that sustainable development ‘has the meaning assigned to it in section 1 of the National Environmental Management Act’.50 Relevant to waste management generally is the further NEMA principle which states that: ‘[r]esponsibility for the environmental health and safety consequences of a policy, programme, project, product, process, service or activity exists throughout its life cycle’.51 The Local Government: Municipal Systems Act 32 of 2000 (the Systems Act), refers to ‘environmentally sustainable’ which it defines as: in relation to the provision of a municipal service means the provision of a municipal service in a manner aimed at ensuring that— (a) the risk of harm to the environment and human health is minimised to the extent reasonably possible under the circumstances; (b) the potential benefits to the environment and to human health and to safety are maximized to the extent reasonably possible under the circumstances;52 (c) legislation intended to protect the environment and human health and safety is complied with.53

While the national environmental management principles reflect international trends, they are not all foreign importations. Some of the other principles are peculiar to South Africa and reflect the need to redress the country’s apartheid past. For example, it is provided that: [e]quitable access to environmental resources, benefits and services to meet basic human needs and ensure human well-being must be pursued and special measures may be taken to ensure access thereto by categories of persons disadvantaged by unfair discrimination.54

49 Biodiversity Act, s. 1 ‘Definitions’ (‘sustainable’). 50 Waste Act, s. 1. 51 Waste Act, s. 2(4)(e). 52 Systems Act, s. 1 (Definitions). 53 Ibid. 54 Waste Act, s. 2(4)(d).

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south africa 325 The principles are detailed and complex and provide limitless potential for decision-makers and the courts to develop a cohesive body of generally acceptable environmental management practices. These and other principles were judicially endorsed in the above Fuel Retailers case, where the Court stated that at the heart of the NEMA principles is the concept of sustainable development, which requires organs of state to evaluate the ‘social, economic and environmental impacts of their activities’.55 In that case the Court thoroughly examined the relevant NEMA provisions and pointed out that ultimately a balancing act had to be achieved by the authorities. More specifically, Ngcobo J remarked that ‘[t]he principle that enables the environmental authorities to balance developmental needs and environmental concerns is the principle of sustainable development’.56 He further noted that: NEMA, which was enacted to give effect to s 24 of the Constitution, embraces the concept of sustainable development. Sustainable development is defined to mean ‘the integration of social, economic and environmental factors into planning, implementation and decision-making for the benefit of present and future generations’. [Footnote omitted] This broad definition of sustainable development incorporates two of the internationally recognised elements of the concept of sustainable development, namely, the principle of integration of environmental protection and socio-economic development, and the principle of inter-generational and intra-generational equity.57

Finally South Africa has an impressive network of protected areas including the world renowned Kruger National Park. An array of a previous disparate set of national and provincial protected area laws have been consolidated in the National Environmental Management: Protected Areas Act, 57 of 2003 (NEM: Protected Areas Act). In Mining and Environmental Justice Community Network of South Africa and others, and Minister of Environmental Affairs and Minister of Mineral Resources and others,58 the Court reviewed and set aside the two Ministers’ joint decision under section 48 of the NEM: Protected Areas Act to permit the prospecting in an area declared to be a Protected Environment. While South Africa has an impressive array of environmental legislation on its statute book, some of which has been alluded to above, the next section outlines the mechanisms and administration of the implementation of this legislation.

15.3 Implementation Framework 15.3.1 Co-operative Government in Practice The notion of cooperative governance, fundamental to the implementation of the vast array of inter-related, and inter-sectoral, environmental laws administered by different government agencies at national, provincial, and local levels, has been alluded to in the discussion of allocation of powers. 55 The Fuel Retailers case, at [63], 338I. 56 Ibid., at [93], 37F. 57 Ibid., at [59], 26D–26F. 58 High Court, Gauteng Division (Case no. 50779/2017).

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326 jan glazewski To give practical effect to these principles, Schedule 4 of the Constitution itemizes a number of typical government functions, for example ‘education’, and stipulates these to be ‘Functional areas of concurrent national and provincial legislative competence’. In contrast, Schedule 5 delineates ‘Functional areas of exclusive provincial legislative competence’ (emphasis added). Among others, Schedule 4 itemizes ‘environment’ and ‘nature conservation’ making these subject to concurrent national and provincial government jurisdiction. Mineral extraction, including petroleum and gas, is not mentioned in either schedule and is thus by default a national competence, which is the Department of Mineral Resources. However, the provinces can get involved in the authorization of national government competences, for example, mineral extraction activities, because some categories of e nvironmental assessment procedures as well as ‘provincial planning’ fall under the purview of provinces and/or municipalities. This interaction between different spheres of government was vividly illustrated in a number of planning and mining related cases as now illustrated. As regards planning, in the Johannesburg Metropolitan Municipality cases59 the dispute turned on the constitutional validity of Chapters 5 and 6 of the now repealed Development Facilitation Act 67 of 1995 (DFA). This national Act established provincial Development Tribunals and among other things empowered the Gauteng (Province) Development Tribunal to approve applications for the rezoning of land and the establishment of townships. The relevant Municipal Ordinance empowered the City to determine the same issues. The question before the Court was whether the Constitution empowered the municipal or the provincial sphere of government, or both, to exercise powers relating to the rezoning of land and the establishment of townships. The City contended that these powers are components of ‘municipal planning’, a function assigned to municipalities by section 156(1) of the Constitution, read with Part B of Schedule 4 to the Constitution, described below. The Gauteng provincial authority argued that the contested powers were elements of ‘urban and rural development’ under Part A of Schedule 4 to the Constitution, a functional area falling outside the executive authority of municipalities. The Constitutional Court unanimously held that the impugned chapters were invalid. It pointed out that the constitutional scheme, together with the different contexts in which the term ‘planning’ is used, clearly indicated that the term has different meanings.60 It went on to point out that the Constitution confers different planning responsibilities on each of the three spheres of government in accordance with what is appropriate to each sphere.61 It also provides that, barring areas of concurrent competence, each sphere of government is allocated separate and distinct powers which it alone is entitled to exercise,62 unless exceptional circumstances exist.63 In this context, the Court held that:

59 Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others 2010 (6) SA 182 (CC); 2010 (9) BCLR 859 (cited hereafter as the Johannesburg Metropolitan Municipality Constitutional Court case); and Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others 2010 (2) SA 554 (SCA); 2010 (1) BCLR 157 (SCA) (cited hereafter as the Johannesburg Metropolitan Municipality SCA case). 60 The Johannesburg Metropolitan Municipality Constitutional Court case, at [53]. 61 Ibid. 62 Ibid., at [56]. 63 In which case, ss. 100 and 139 Constitution provide for limited forms of intervention by the national and provincial spheres respectively.

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south africa 327 [i]t is . . . true that the functional areas allocated to the various spheres of government are not contained in hermetically sealed compartments. But that notwithstanding, they remain distinct from one another. This is the position even in respect of functional areas that share the same wording like roads, planning, sport and others. The distinctiveness lies in the level at which a particular power is exercised. For example, the provinces exercise powers relating to provincial roads whereas municipalities have authority over municipal roads. The prefix attached to each functional area identifies the sphere to which it belongs and distinguishes it from the functional areas allocated to the other spheres.

In this instance, it was held that the term ‘municipal planning’ should be understood to assume the particular well-established meaning it has long enjoyed, namely ‘planning which includes the zoning of land and the establishment of townships’, and it was in this sense that the term was used in the Constitution, since there is nothing in the Constitution indicating that it carried a meaning other than its common meaning.64 A related issue considered by the Court was whether the Constitution allocated the same power to the provinces. In concluding that it did not, Jafta J placed emphasis on the particular role of municipalities within government, holding that the constitutional scheme envisages a degree of autonomy for the municipal sphere, in which municipalities exercise their original constitutional powers free from undue interference from the other spheres of government. Of relevance was the constitutional requirement that each sphere must respect the status, powers, and functions of government in the other spheres and must not assume any power or function except those conferred on it in terms of the Constitution.65 This is amplified by a further section,66 which precludes the other spheres from impeding or compromising a municipality’s ability or right to exercise its powers or perform its functions.67 Accordingly, it could not be said that the Constitution assigned the same function to the provincial sphere under the power of ‘urban and rural development’. Accordingly, it was found that the purposive construction of the schedules required that a restrictive meaning be ascribed to development, in order to enable each sphere to exercise its powers without interference from the other spheres.68 It followed, therefore, that the impugned chapters of the DFA were inconsistent with section 156 of the Constitution read with Part B of Schedule 4, and were declared invalid by the Court. The DFA has since been repealed and replaced by the Spatial Planning and Land Use Management Act 16 of 2013. The second set of cases concerned the respective powers of the national Department of Mineral Resources and the provincial Western Cape MEC for local government, environmental affairs, and planning, which came into sharp focus in the Maccsand cases, a matter heard not only by the High Court but also the Supreme Court of Appeal (the SCA) as well as the Constitutional Court.69 The question before the Court was whether the granting of a mining right under the nationally administered MPRDA, referred to above, overrode

64 The Johannesburg Metropolitan Municipality Constitutional Court case, at [57]. 65 Section 41(1) Constitution; Johannesburg Metropolitan Municipality Constitutional Court case, at [56]. 66 Section 151(4) Constitution. 67 Johannesburg Metropolitan Municipality Constitutional Court case, at [58]. 68 Ibid., at [62]. 69 City of Cape Town v Maccsand (Pty) Ltd and Others 2010 (3) SA 63 (WCC); City of Cape Town v Maccsand (Pty) Ltd and Others 2011 (6) SA 633 (SCA); Maccsand (Pty) Ltd and Another v City of Cape Town and Others [2012] JOL 28669 (CC) (cited hereafter as the Maccsand 1, 2, and 3 cases respectively).

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328 jan glazewski the need to obtain the requisite zoning authorizations under the Western Cape’s now repealed provincial Land Use Planning Ordinance 15 of 1985 (LUPO).70 The Cape High Court held that the competence to regulate mining under the national sphere did not trump local government’s functional competence of municipal planning, and thus authorizations under both the MPRDA as well as the LUPO were necessary.71 The SCA upheld this view, stating among other things that a municipality under the present constitutional dispensation ‘is not a mere creature of statute, otherwise moribund, save if imbued with power by provincial or national legislation’ but an organ of state that enjoys “original” and constitutionally entrenched powers, functions, rights and duties that may be qualified or constrained by law and only to the extent the Constitution permits’.72

It went on to deal with section 152 of the Constitution as well as Part B, Schedule 4 (referred to below), pointing out that: [i]t will be apparent, then, that, while national and provincial government may legislate in respect of the functional areas in Schedule 4, including those in Part B of that schedule, the executive authority over, and administration of, those functional areas is constitutionally reserved to municipalities. Legislation, whether national or provincial, that purports to confer those powers upon a body other than a municipality will be constitutionally i nvalid.73

The above has shown that administration, including environmental administration, is carried out by these three ‘spheres’ of government making environmental management complex and adding particular emphasis to Chapter 3 of the Constitution. While Chapter 3 of the Constitution is concerned with vertical co-operative government, that is between national, provincial, and local spheres, a central and age-old problem is the challenge of coordination of environmental laws simply between national government departments. This is because environmental management encompasses a broad array of concerns, environmental concerns by their nature being cross-sectoral and ranging from sustainable use and enjoyment of natural and cultural resources, including fresh-water, marine fisheries, to the need to combat pollution and manage waste, as well as issues around land use planning and development.

15.3.2 Relevant Governmental Departments—From Integration to Sectorialization Prior to 2009, the central national government department regarding the environment was the Department of Environmental Affairs and Tourism (DEAT) which administered not 70 The LUPO has been repealed and replaced by the Western Cape Land Use Planning Act 3 of 2014. 71 The Maccsand 1 case, at 20. See also Swartland Municipality v Louw NO and Others Case 2010 (5) SA 314 (WCC) and Louw NO and Others v Swartland Municipality (650/2010) [2011] ZASCA 142 (23 September 2011). 72 The Maccsand 2 case, at [22]. 73 Ibid., at [26], quoting with approval the SCA in the Johannesburg Metropolitan Municipality SCA case.

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south africa 329 only the NEMA referred to above but also a suite of environmental legislation encompassing biodiversity, protected areas, coastal areas, waste management, and others.74 However, when the former President of South Africa, namely Jacob Zuma, came into office in 2009, there was a general realignment of government Ministries.75 This resulted in the DEAT being split, into a separate new Ministry of Tourism as well as a newly named Ministry of Water and Environmental Affairs (DWE). The latter department was subsequently further split in two Ministries, namely the Ministry of Environmental Affairs and the Ministry of Water and Sanitation (DWAS). A further part of this realignment was that the fisheries section of the former DEAT and the forestry section of the former Department of Water and Forestry (DWAF) were moved to the newly named Department of Agriculture, Forestry and Fisheries (DAFF), under a separate Minister. This has resulted in marine fisheries management residing in a separate ministry to oceans and coastal management, which does not make for an integrated approach to the management of the marine and coastal environment. Also relevant to administration of environmental laws is the fact that the previous Department of Minerals and Energy has been split into two separate ministries, namely the Departments of Mineral Resources and Energy respectively, under different Ministers. Other relevant government departments which play a key role in the administration of the environment include the Departments of Transport; Trade and Industry; Rural Development and Land Reform; Justice and Constitutional Development; and Science and Technology as well as Arts and Culture.76 At provincial level, the respective environmental directorates are located in different directorates in the respective provinces as set out above. These include nature conservation departments, heritage and cultural resource departments, agricultural departments, and others. At the local level, local authorities are at the forefront in administering various townplanning instruments (such as zoning schemes), protected areas and nuisance by-laws. This issue of which government department does what as regards environmental management is crucial and fundamental in both the government and in the private sector. In the case of government, civil servants need to be clear on the respective responsibilities and duties of national, provincial and local authorities in the environmental sphere. In the case of the private sector, the public are entitled to be clear on their rights and duties as regards the environment in pursuing their legitimate activities; and, more practically, to know which government bodies are to be approached for authorization regarding development proposals, natural resource extraction permits, pollution emission permits, and so on. From a theoretical point of view, the ideal is the so-called ‘one-stop permitting’, which promotes

74 See, inter alia, the National Environmental Management: Biodiversity Act 10 of 2004, National Environmental Management: Protected Areas Act 57 of 2003, National Environmental Management: Integrated Coastal Management Act 24 of 2008 and National Environmental Management: Waste Act 59 of 2008. 75 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. 76 A leading South African media house reported that the South African cabinet is one of the largest in the world having more cabinet ministers than the United States, Germany, and Japan, all of which have much bigger economies and broader tax bases: see http://www.timeslive.co.za/thetimes/2014/05/28/ zuma-s-monster-cabinet-to-cost-sa-r1bn.

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330 jan glazewski both efficiency from a private sector perspective and coordination from an environmental management point of view.77 The thorny issue of cooperative governance particularly between the mining and environmental sector is taken up in section 15.4 where the relatively new so-called One Environmental System (OES) in the context of the mining industry is interrogated further.78

15.4 Selected Problem: The ‘One Environmental System (OES)’ The issue of cooperative government between municipal and national spheres in the mining sector has not only been limited to the issue of land use planning, but has extended to the competencies of various Departments to regulate the environmental impacts of mining. For a number of years there has been a dispute between the Department of Mineral Resources and the Department of Environmental Affairs regarding their respective legislative mandates and competencies to either exclusively or jointly regulate the environmental impact of mining. One approach has been that the MPRDA exclusively regulates such impacts whilst the other has been that the relevant authorizations under NEMA are also required for mining, prospecting, exploration, production, and related activities.79 This issue was discussed in the Maccsand cases, and has been complicated by a lengthy suite of suite of legislative amendments which date as far back as 2008 to create the so-called ‘One Environmental System’ (OES).80 These amendments are canvassed below, but in summary the OES entails: • that all environment-related aspects are to be regulated through one environmental system, namely NEMA, and that all environmental provisions are repealed from the MPRDA; • that the Minister responsible for environmental affairs will set the regulatory framework and norms and standards, and that the Minister responsible for mineral resources will implement the provisions of NEMA and the subordinate legislation as far as it relates to prospecting, exploration, mining, or operations; • that the Minister responsible for mineral resources will issue environmental authorizations in terms of NEMA for prospecting, exploration, mining, or operations, and that 77 See generally C. Bosman, L. J. Kotzé, and W. Du Plessis, ‘The Failure of the Constitution to Ensure Integrated Environmental Management from a Co-operative Governance Perspective’ (2004) 19(2) South African Public Law 411; L. J. Kotzé, ‘Improving Unsustainable Environmental Governance in South Africa: The Case for Holistic Governance’ (2006) 1 Potchefstroom Electronic Law Journal: Special Environmental Law Edition 1. 78 T. Humby, ‘ “One Environmental System”: Aligning the Laws on the Environmental Management of Mining in South Africa’ (2015) 33(2) Journal of Energy and Natural Resources Law 110–30. 79 T. Humby, ‘The Black Sheep Comes Home—Incorporating Mining into the Environmental Impact Assessment Regime under the National Environmental Management Act, 1998’ (2009) 24(1) South African Public Law 1–32. 80 T. Humby, ‘Maccsand in the Constitutional Court: Dodging the NEMA Issue’ (2013) 24(1) Stellenbosch Law Review 55–72.

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south africa 331 the Minister responsible for environmental affairs will be the appeal authority for these authorizations; and • that the Minister responsible for mineral resources and the Minister responsible for environmental affairs agree on fixed time frames for the consideration and issuing of the authorizations in their respective legislation and also agree to align the time frames and processes. To give effect to the OES, a number of amendments were successively made to NEMA, the MPRDA, the National Water Act 36 of 1998, as well as the Waste Act. Unfortunately the effective date of these amendments was often delayed for a period of years, alternatively amendments were only brought into effect in part (with certain sections being left out without explanation), and the effective dates were often changed and were confusing and at times contradictory to say the least. This led to a significant amount of legislative uncertainty within the mining industry which was unfortunately not helped by any legislative guidance from the respective Departments themselves. When finally (almost all) of the legislative amendments to NEMA, the MPRDA, and the Waste Act came into effect, they did so without the necessary supporting regulations in order to properly implement them. This prompted a court challenge by Aquarius Platinum (SA) (Pty) Ltd against the Minister of Mineral Resources and the Minister of Environmental Affairs and five others.81 In this matter Aquarius sought, amongst other things, to set aside the decision by the President to bring the National Environmental Laws Amendment Act 25 of 2014 (one of the suite of legislative amendments giving effect to the OES) into effect without the necessary regulations envisaged in that Act being in place, specifically the Regulations under the Waste Act. The High Court found in favour of Aquarius, ruling that the decision to do so was irrational and thus the relevant proclamation was invalid. This decision was dismissed on appeal to the Constitutional Court which ruled that it was not irrational for the President to publish the Act on the grounds that the President had no reason to believe that the Minister would fail to make the regulations within the stipulated time provided for the Act to be implemented. As such it was not irrational for the President to publish the Act in the absence of the relevant regulations and accordingly set the decision of the High Court aside.82 However, after the High Court judgment and prior to the Constitutional Court decision the relevant regulations forming the subject of this decision under the Waste Act were published in their final form during July 2015, rendering the decision of the Constitutional Court moot. That is not to say that the legal conundrums created by the OES have been entirely remedied, however, and it is possible that future litigation may still ensue, for example regarding the legality of certain of the relatively historic mining facilities which are still in operation. In this context it will be imperative for the respective Departments of Environmental Affairs and Mineral Resources to ensure a smooth transition to this new legislative regime and to effectively practise cooperative government in this already highly stressed industry.

81 Unreported, case no. 25622/2014, Gauteng High Court. 82 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), at [40].

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332 jan glazewski

15.5 Conclusion The constitutional environmental right which has shaped South Africa’s environmental law jurisprudence since the advent of a constitutional democracy well over twenty years ago was motivated by the ideal of a decent environment for all and sustainable and equitable use of natural resources bearing in mind the ‘injustices of the past . . .’ .83 But the last decade or so has seen the additional challenge of meeting the global challenge of climate change and related energy use.84 In, Earthlife Africa Johannesburg v The Minister of Environmental Affairs & Others,85 the Court confirmed the significance of, and need for, climate change impacts to be included in the environmental assessment process in large-scale projects. It cited with approval a decision of the Court of Appeal of the State of California, Communities for a Better Environment v City of Richmond,86 to emphasize the point that in environmental cases the time to consider the climate change impact is before, not after, granting authorization of a project. In so doing it remitted the matter back to consider a climate change impact assessment report.87 Moreover there is an ongoing debate about meeting South Africa’s energy security needs, its optimal energy mix given its historical reliance on its cheap and abundant coal resources, persistent and economically damaging load-shedding during the period 2008 to 2010, and the role of nuclear and renewable energy sources.88 Not only has the debate become a quagmire of political controversy but significant segments of civil society are vehemently opposed to further nuclear facilities being built. In Earthlife Africa Johannesburg and South African Faith Communities’ Environment Institute v Minister of Energy and Others,89 two applicant NGOs successfully challenged the respondent Minister of Energy’s decision to proceed with South Africa’s nuclear procurement programme. The Court found, first, that the Minister’s determination under the Electricity Regulation Act 4 of 2006 (ERA) regarding the procurement of 9.6 gigawatts of nuclear energy was irregular in that it breached certain statutory and constitutional prescripts, specifically that scant attention had been paid to the National Energy Regulator of South Africa’s (NERSAs) public participation requirements. The Court stated ‘that NERSA’s decision to concur in the Minister’s proposed 2013 determination without at least the minimum public participation process renders the decision procedurally unfair . . . ’.90 Secondly the Court found that various intergovernmental agreements (IGAs) that the Minister had entered into regarding nuclear cooperation, particularly one between 83 Preamble of South Africa’s Constitution. 84 South Africa experienced a series of load shedding scenarios during the period 2008–10 which had a severe detrimental impact on the economy. South Africa is the largest emitter of carbon on the African continent. See generally T-L. Humby, L. Kotzé, O. Rumble, and A. Gilder (eds.), Climate Change: Law and Governance in South Africa (Cape Town: Juta & Co, 2016); B. Scholes, M. Scholes, and M. Lucas, Climate Change: Briefings from Southern Africa ((Johannesburg: Wits University Press, 2015). 85 Earthlife Africa Johannesburg v The Minister of Environmental Affairs and Others [2017] 2 All SA 519 (GP). 86 184 Cal.App.4th 70 (2010). 87 Ibid., at [126]. 88 J. Wakeford, ‘The South African Energy Context’, in J. Glazewski and S. Esterhuyse (eds.), Hydraulic Fracturing in the Karoo Critical Legal and Environmental Aspects (Cape Town: Juta & Co, 2016), chapter 7. 89 [2017] 3 All SA 187 (WCC). 90 Bozelek J, at [46].

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south africa 333 the government of Russia and South Africa had not complied with certain procedural requirements laid down in the Constitution.91 This has far-reaching implications for industry in general and the mining sector in particular. Given international developments where heavy industry and governments around the world are being increasingly pressurized to account for the harmful impacts of climate change, litigation is likely to shift to the energy arena in the forthcoming near future.

15.6 Selected Bibliography Bosman, C., L. J. Kotzé, and W. Du Plessis, ‘The Failure of the Constitution to Ensure Integrated Environmental Management from a Co-operative Governance Perspective’ (2004) 19(2) South African Public Law 411. Glazewski, J., Environmental Law in South Africa (Durban: LexisNexis, Issue 6 2018). Glazewski, J. and S. Esterhuyse (eds.), Hydraulic Fracturing in the Karoo Critical Legal and Environmental Aspects (Cape Town: Juta & Co, 2016). Humby, T., ‘ “One Environmental System”: Aligning the Laws on the Environmental Management of Mining in South Africa’ (2015) 33(2) Journal of Energy and Natural Resources Law 110–30. Humby, T., ‘The Black Sheep Comes Home–Incorporating Mining into the Environmental Impact Assessment Regime under the National Environmental Management Act, 1998’ (2009) 24(1) South African Public Law 1–32. Humby, T., ‘Maccsand in the Constitutional Court: Dodging the NEMA Issue’ (2013) 24(1) Stellenbosch Law Review 55–72. Humby, T.-L., L. Kotzé, O. Rumble, and A. Gilder (eds.), Climate Change: Law and Governance in South Africa (Cape Town: Juta & Co, 2016). Kotzé, L. J., ‘Improving Unsustainable Environmental Governance in South Africa: The Case for Holistic Governance’ (2006) 1 Potchefstroom Electronic Law Journal: Special Environmental Law Edition 1. Kotzé, L. J., ‘The Judiciary, the Environmental Right and the Quest for Sustainability in South Africa: A Critical Reflection’ (2007) 16(3) Review of European Community and International Environmental Law 298. Kotzé, L. J. and A. Du Plessis, ‘Some Brief Observations on Fifteen Years of Environmental Rights Jurisprudence in South Africa’ (2010) Journal of Court Innovation 157. Scholes, B., M. Scholes, and M. Lucas, Climate Change: Briefings from Southern Africa (Johannesburg: Wits University Press, 2015).

91 Section 231, at [116].

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chapter 16

Sou th Kor e a Hong Sik Cho and Gina J. Choi

16.1 Overview

334

16.2 Allocation of Powers

335

16.3 Structure and Substance of Environmental Law

338

16.4 Implementation Framework

347

16.5 Conclusion

349

16.6 Selected Bibliography

350

16.2.1 Overview of Devolution of Power 16.2.2 Constitutional Right and Its Implementation 16.3.1 Overall Structure and Principles of Environmental Law 16.3.2 Medium-Specific Regulations 16.3.2.1 Air Preservation and Climate Change Regime 16.3.2.2 Water and Ocean Preservation 16.3.2.3 Soil Environment Preservation 16.3.2.4 Chemicals Management 16.3.2.5 Recycling and Waste Management 16.3.2.6 Wildlife and National Resources Preservation 16.4.1 Administrative and Criminal Enforcement 16.4.2 Private Enforcement of Environmental Law

335 336

338 340 340 342 343 344 345 346 347 348

16.1 Overview The legislative scheme of Korean environmental law has entered into its maturity stage. Korean environmental law has been evolving vigorously since the 1990s as the Korean Constitution introduced a provision for environmental rights for citizens in 1987. The Korean Basic Environmental Policy Act (BEPA) was enacted to provide statutory grounds to bring about this constitutional environmental right, and the status of the government institution responsible for environmental policy was elevated from agency to ministry level in 1994.

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south korea 335 The country has continuously made efforts to develop a legal scheme to mitigate pollution caused by human activities, and to preserve natural resources. In this regard, Korea has actively participated in global collective action. The Korean Emissions Trading Scheme (KETS), which was planned since the Kyoto protocol period and implemented in 2015, well illustrates the country’s efforts. The country also hosted the headquarters office of the United Nations Global Climate Fund. As for institutional structure, the Korean Ministry of Environment and the Congress have led the evolution of environmental law while the role of the courts has been relatively limited. Korea basically has a civil law system and environment law has mostly developed with enactment of new statutes for each relevant area supported through the law enforcement efforts of the administration. Korean law recognizes limited standing and less diversity in environmental lawsuits, which results in the courts being not very active in creating or recognizing environmental principles or theories without explicit written positive law. This chapter discusses the overall structure of Korean environmental law as it has developed so far, with its impact on the energy policy as the climate change regime.

16.2 Allocation of Powers 16.2.1 Overview of Devolution of Power The traditional instrument of choice for addressing environmental externalities in Korea has been command and control regulation, while market-based instruments, for example, environmental tax (pollution charges), the emissions trading scheme launched in 2015, and other incentive-based systems, are gaining in importance. With respect to command and control regulations, under legislation passed by Congress, government agencies adopt specific prohibitions or requirements relating to pollution, waste, resource management, land use, and development.1 These regulations are enforced against firms and individuals through licensing and permit requirements, enforcement actions, and sanctions for violations.2 Government agencies primarily design policy instruments based on market and economic incentives. Korea has adopted a presidential system except for a few years of experience with a parliamentary system. The Korean Constitution is based on the separation of powers principle, similar to American presidentialism,3 and vests legislative authority in the Congress, a unicameral legislature; administrative authority in the executive branch led by the president; and judicial authority in the courts.4 The Ministry of Environment (MOE) is the primary executive agency which establishes and enforces environmental policy based on legislation and publishes administrative rules to aid the interpretation of environmental laws. The MOE retains general jurisdiction over 1 H. S. Cho, ‘Law and Politics in Environmental Protection: A Case Study on Korea’ (2002) 2 Journal of Korean Law 45, at 49–50. 2 Ibid. 3 K. W. Ahn, ‘The Influence of American Constitutionalism on South Korea’ (1997–98), 22 Southern Illinois University Law Journal 71, at 99. 4 Articles 40, 66(4), and 101(1) South Korean Constitution.

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336 hong sik cho and gina j. choi all environmental issues; pollution control in all types of medium including air, water, soil, and oceanic waters; and management of recycling, waste, sewage, noise, vibration, and toxic substances including chemicals. Part of the responsibility and authority to implement detailed environmental policy and to perform administrative investigation has been delegated to the eight regional environmental offices and local governments.5 The MOE has also been primarily in charge of sustainable development policy affecting overall economic and social policies. It has been playing an increasingly important role in environmental law- and policymaking as the relevant regulations have evolved into instruments based on economic incentives, for example, the emissions trading scheme, recycling, etc. as discussed at section 16.3, and as environmental policy gets more sophisticated reflecting the dynamics between traditional command and control and newer market-based instruments. The court system comprises of three levels of general courts, and an independent Constitutional Court6 with the exclusive authority to review the constitutionality of legislation, which has been fairly active since its establishment in 1988 and contributed to the realization of a constitutional environmental right.7 Korean law does not recognize citizen lawsuits or petitions of writ of mandamus seeking specific performance on the part of a government agent. These limited standing rules and the requirements relating to justiciability which must be met in order to file a lawsuit against a government agency make the court’s role in environmental law- and policy-making rather passive.8 Private enforcement of environmental law has been primarily restricted to property or tort claims, because the court has been somewhat reluctant in applying the public environmental laws directly to address environmental damage in disputes between private parties.

16.2.2 Constitutional Right and Its Implementation Article 35(1) of the Constitution, which has been the bedrock of Korean environmental law, provides for an individual right to a healthy and pleasant environment as well as for an obligation resting on both the government and citizens to protect the environment.9 Article 35(2) requires that the substance and exercise of the environmental right shall be determined by legislation. There is an ongoing discussion over introducing clauses stipulating the state’s responsibility for climate change, the sustainable energy policy, and intergenerational distributive justice to the Constitution.10 5 The Ministry of Environment and the Subordinate Agencies, Presidential Decree amended by Presidential Decree No. 27450 of 16 August 2016. 6 Articles 107(1), 111–113 South Korean Constitution. 7 J. Lim, ‘Judicial Intervention in Policy-Making by the Constitutional Court in Korea’ in L. Mayali and J. Yoo (eds.), Current Issues in Korean Law (Berkeley: The Robins Collection, 2014), 23–56, at 23–4. 8 T. Ginsburg, ‘Dismantling the “Developmental State”? Administrative Procedure Reform in Japan and Korea’ (Autumn 2001) 49 American Journal of Comparative Law 585–625, at 596. 9 Article 35(1) South Korean Constitution. This provision was first incorporated in the Constitution as Art. 33 in 1980 and slightly updated in 1988 Constitution reflecting the enhanced rights relating to environment and health. 10 Korean Congress and the administration recently started a discussion over possible amendment of the Constitution. The initial draft amendment of the environmental right provision recommended by the Advisory Committee to the Special Committee of the Congress for the Amendment of Constitution (‘Advisory Committee’) contains new clauses providing the state’s responsibility for the global ecological

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south korea 337 The Constitutional Court and the Supreme Court show a slight difference in their interpretation of the effect of the environmental right based on Article 35(1) and (2). The Constitutional Court has ruled that citizens may seek the government’s active engagement by filing a claim with the Constitutional Court to declare the government’s failure to act as unconstitutional, directly based on Article 35(1), if the environmental right is severely compromised due to the government’s failure to enact necessary legislation, or if any legislation that does exist is significantly insufficient for protecting environmental right.11 This case made a precedent which enables citizens directly pursue a claim demanding enactment of environmental legislation. However, the Supreme Court does not recognize the provisions of the Constitution or Article 6 BEPA, which stipulates the constitutional environmental right as a basic policy principle of environmental law,12 as self-executing either in administrative litigation or in disputes between private parties. In cases of administrative lawsuits challenging government agencies, regulations, or policy, where environmental interests are involved, the Supreme Court requires a number of conditions to be predetermined by statutes before it will recognize standing for the claimant.13 The Court applies the ‘legal interest’ test for standing which means that individuals affected by a government agency action cannot sue the government to enjoin such action, unless specific statutory provisions are interpreted to provide grounds for considering that the individual’s right or interest has been affected by the disputed action.14 In this regard, the Supreme Court opines that Article 35(1) of the Constitution does not establish subject, object, substance, or means to exercise of the environmental right and that Article 6 BEPA ought not to be interpreted to grant citizens a self-executing right to claim in environment matters.15 The Supreme Court has only recognized the ‘legal interest’ to claim environmental rights for residents living in an area subject to environmental impact assessment (EIA), for example, based on other provisions of the BEPA and the Environmental Impact Assessment Act, or any other area that has a specific legal ground to consider the environmental interest of the residents based on individual statutes.16

system and future generation, as well as the obligation to respond to climate change and exert efforts for energy justice. See the Report of the Advisory Committee, January 2018, 93–5. 11 South Korean Constitutional Court, 2006 Hun-Ma711 (31 July 2008). The plaintiffs argued that the election law does not provide any noise regulation, which allows election campaign participants to make severe noise through loud speakers, causing physical and mental pain to nearby residents. While four dissenting judges opined that the failure to enact measures to alleviate this issue was unconstitutional, the remaining four judges ruled that it was not unconstitutional, thus there was a failure to meet the quorum to declare the unconstitutionality of a government (in)action. 12 Article 6 Basic Environmental Policy Act (BEPA), modelled after the United States’ National Environmental Policy Act, reinforces the constitutional environmental right providing that citizens shall have the right to live in a healthy and pleasant environment and obligation to cooperate in environmental preservation policies of the government. The BEPA provides the basic principles of environmental laws and basic policy directions for the national environmental preservation goals, together with the Constitution. 13 Article 35(2) South Korean Constitution provides that the substance and exercise of the environmental right shall be determined by legislation. 14 H. S. Cho, ‘An Overview of Korean Environmental Law’ (1999) 29 Environmental Law. 501, at 511. 15 See e.g. South Korean Supreme Court, 2006Du330 (16 March 2006); South Korean Supreme Court, 2012Du6322 (10 December 2015). 16 Ibid.

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338 hong sik cho and gina j. choi The Supreme Court has been also extremely deferential to government agency discretion and has held that regulations or policies are legitimate if, and only if, the procedural requirements are satisfied, without further reviewing whether the environmental right of the plaintiff has been damaged. In a case involving a private injunction brought against private parties based on tort claims, the Court, maintaining the dichotomy between public and private law, opined that Article 35(1) of the Constitution, the BEPA, and other public environmental laws do not grant individual citizens a private legal right to environmental protection and that private parties may seek damages or an injunction against other private parties only on the basis of property rights.17 These court decisions sparked enormous controversy and there is an ongoing discussion on how to enhance judicial oversight of e nvironmental rights protection. Proponents of institutional change suggest that constitutional amendment is required to make the environmental right provision self-executing, while moderate commentators maintain that this problem should be addressed by the courts’ more considerate interpretation of the Constitution and the BEPA.

16.3 Structure and Substance of Environmental Law 16.3.1 Overall Structure and Principles of Environmental Law In Korea, the BEPA has functioned since the 1990s as the foundation of individual laws concerning each area of environmental regulations, thus controlling each medium or source of pollution, including air, water, soil, vibration, waste, and chemicals. The BEPA legislates for the principles of environmental law, for example, the polluter-pays principle, cooperation principle, and sustainability principle, which are gaining more authority and are reflected in various individual statutes.18 For example, Article 7 BEPA introduces the polluter-pays principle, providing that anyone who causes environmental pollution or damage is liable to remediate the damage or to compensate for it and bear such cost. The principle is also stipulated in Article 48-2 of the Water Quality and Ecosystem Conservation Act (WQECA), Article 10-4 of Soil Environment Conservation Act (SECA), the Waste Management Act (WMA), etc.

17 See South Korean Supreme Court, 2004Ma1148, 1149 (combined, 2 June 2006), which upheld the lower court decision, Busan Appellate Court, 2004Ra41, 42 (combined, 29 November 2004). 18 Some commentators argue that Korean law recognizes the precautionary principle. It is however not clear from the BEPA or the court precedents. The BEPA specifies the government’s general obligation to prevent environmental hazards and damages while it does not provide explicit balancing standards for risk management. More recently, the climate change legislations appear to be based on the precautionary principle while the enforcement policies or court decisions have yet to confirm it. As many legislative instruments relevant to environment and energy adopts sustainability as legislative purposes and more court precedents relying on sustainability principle have been observed, sustainability has been settled in Korean law as a legal principle.

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south korea 339 The EIA system has operated as the means to implement the precautionary principle since 1993. The Environmental Impact Assessment Act has recently been amended to provide a more comprehensive and effective mechanism to guide the entire development policy and to introduce the Strategic Environment Assessment (SEA) system, which enables full integration of environmental considerations and sustainability into development plans and projects prior to their finalization.19 The Low Carbon, Green Growth Framework Act (LCGGFA), which functions as basic policy legislation for energy regulation and the climate change regime, clearly adopts the sustainability principle and may best illustrate the precautionary principle.20 The LCGGFA, originally planned to meet international standards of greenhouse gas emission mitigation, is innovative in its more general and inclusive scope in order to integrate environmental considerations and sustainability into a broad set of policy choices relating to Korean society and the economy.21 It provides the momentum to enable environmental law principles to direct energy law and policy. The LCGGFA on the other hand requires the government to assess the economic costs and benefits of relevant policies,22 which means the Act places emphasis on the efficiency of policy instruments while setting the climate goal based on the precautionary principle. In this regard, the LCGGFA also provides a foundation for the government to introduce an emissions trading scheme, a market-based greenhouse gas mitigation system.23 As the LCGGFA is a fairly new piece of legislation, its legal authority, including the substantive legal effect of the Act, is anticipated to develop through government policies and judicial reviews of such policies. Each individual environmental statute has provided grounds for command and control type regulations for a licensing system for emission of pollutants, emission standards, and administrative and criminal sanctions for violations of such, as well as an incentive-based regulatory system. In an effort to enhance the efficiency of the licensing system, Korea launched an Integrated Environmental Management system in 2017 (KIEM),24 modelled after the European system based on the Integrated Pollution Prevention and Control Directive.25 The KCEM will combine licences and permits that have been granted per medium under separate statutes and manage such sources of pollution comprehensively for each business

19 Environmental Impact Assessment Act, South Korean Law No. 4567, amended as Law No. 14232 as of 29 May 2016. This amendment came into effect on 30 May 2017. 20 The climate change regime in Korea had as its starting point its acceptance of the Intergovernmental Panel on Climate Change (IPCC)’s recommendation for the mitigation goal of two degrees Celsius. Some commentators view this illustrates the precautionary principle with the ground in Art. 2 BEPA as the fundamental philosophy of the act. See, for the precautionary principle embedded in the IPCC’s recommendation, D. A. Farber, ‘Coping With Uncertainty: Cost-Benefit Analysis, the Precautionary Principle, and Climate Change’ (2015) 90 Washington Law Review 1659, at 1678–81. 21 H. S. Cho, J. M. Leitner, J.-H. Lee, and S. W. Heo, ‘Korean Green Growth: A Paradigm Shift in Sustainability Policy, and its International Implications’ (2014) 13 Journal of Korean Law 301, at 302–4. 22 Article 38, para. 2 Legislation No. 15101. 23 Article 46 South Korean Law No. 9931, amended as Law No. 14122 as of 30 September 2016. 24 The Act on the Integrated Management of Environment Polluting Facilities, South Korean Law No. 13603. 25 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.

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340 hong sik cho and gina j. choi site, based on the Best Available Techniques (BAT) economically achievable.26 The existing individual medium-specific statutes will continue to be effective in terms of regulatory systems other than the licences and permitting systems and will still direct regulation relating to emissions standards.

16.3.2 Medium-Specific Regulations 16.3.2.1 Air Preservation and Climate Change Regime The Air Environment Conservation Act regulates air pollutants from stationary sources and mobile vehicles including ships. The Act imposes a direct emission standards on concentration level of sixty-one air pollutants, including carbon monoxide (CO), nitrogen oxides (NOx), and sulfur dioxide (SOx).27 Among the sixty-one air pollutants, the most hazardous thirty-one are categorized as specified air pollutants, including mercury, asbestos, dioxin, phenol, and polychlorobiphenyl (PCB), and are subject to stricter regulation.28 Some market-based regulations have been in operation for the atmospheric environment. The Air Environment Conservation Act provides a ground to impose administrative surcharges calculated based on the quantity and density of emissions and aggravated for the emissions quantity exceeding the standards.29 As of 2018, the surcharge system is operational only about the emissions of SOx and dust. The emissions volume of NOx, SOx, and particulate matters have been capped in each business place emitting more than a threshold in the Seoul Metropolitan Area. Trading allowances is also possible only among the companies subject to the regulation with the confirmation of the Minister of Environment.30 There is no systemized exchange for spot transactions in relation to those air pollutants, while a nationwide emissions trading scheme for CO2 is in operation at Korea Exchange as discussed later in this section. The Act provides for a certification system for mobile vehicles, which requires all mobile vehicles, including ships, to be manufactured to meet the emissions standards set by the MOE.31 The Act also provides a foundation for the government to promote environmentally 26 Article 24 Act on the Integrated Management of Environment Polluting Facilities, South Korean Law No. 13603; Korea Ministry of Environment, 2016 White Paper of Environment (2016), at 115–20. 27 Article 2 South Korean Law No. 4262, amended as Law No. 13874 as of 27 January 2016, Enforcement Regulation of MOE No. 671 (21 July 2016). 28 Article 4 Enforcement Regulation of MOE No. 671 (21 July 2016). 29 Article 35 South Korean Law No. 4262, amended as Law No. 13874 as of 27 January 2016. NOx is not yet subject to the surcharge system. 30 Banking and borrowing are also allowed. See Arts. 14–22 Special Act on the Improvement of Air Quality in Seoul Metropolitan Area, South Korean Law No. 15274. 31 Articles 46–76.8 South Korean Law No. 4262, amended as Law No. 13874 as of 27 January 2016. A global automobile manufacturer’s fraudulent behaviour in terms of the diesel engine’s exhaust emissions standards was also discovered in Korea and several company executives and employees have been indicted on criminal charges including violation of the Act. The relevant criminal trials, civil lawsuits seeking damages, and administrative litigation and constitutional suits seeking a more stringent recall order from the MOE are all pending as of early 2018. See for the status of the relevant disputes, J. Song, ‘VW hit with record South Korea fine over emissions scandal’, Financial Times, 7 December 2016, available at: https://www.ft.com/content/59050732-bc46-11e6-8b45-b8b81dd5d080; H. K. Shin, B. R. Yoon, and S. H. Sung, “ ‘Revoke the Approval of Recall Plan of Audi, VW” Lawsuits Filed against the Ministry

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south korea 341 friendly vehicle production.32 The MOE, together with other relevant government agencies, continue to promote manufacturing and supply of electric vehicles, hybrid cars, and fuel cell electric vehicles through investing in R&D, providing tax benefits to purchasers, and building more charging stations.33 In addition, Korea has launched a nationwide market-based emissions trading scheme to respond to climate change, based on new legislation, the Act on the Allocation and Trading of Greenhouse-Gas-Emission Permits (KETS Act), separately from the existing air quality regulations.34 More than 525 entities from twenty-three industrial sectors are participating in the Korean emissions trading scheme and the cap of 573 MtCO2–eq in 2015 was the second largest worldwide after the EU’s Emissions Trading Scheme.35 The Korea Exchange (KRX) has been designated as the sole operator of the emissions trading market. Greenhouse gases, including CO2, CH4, N2O, HFCs, PFCs, and SF6, are supposed to be subject to emissions trading under this scheme, but only CO2 trading has so far been launched.36 The government maintains a register for the trading of emission permits to record and manage the allocation and trading of emission permits and greenhouse gas emissions from each business entity eligible for allocation. Allocation was completely free during the first phase of the plan from 2015 to 2017. The proportion of auctioned allowances vis-à-vis the entire allowances will be gradually increased during the second and third phases, 3 per cent between 2018 and 2020 and 10 per cent or more between 2021 and 2025 to reduce the industrial burden in the early stages of implementation and facilitate the gradual implementation of the scheme.37 The market price of the CO2 emissions right is currently used to reflect the climate implications of electricity generation to the wholesale electricity price,38 while the price has yet of Environment’, Yonhapnews, 17 October 2017, available at: http://www.yonhapnews.co.kr/bulletin/2017 /10/16/0200000000AKR20171016192051003.HTML?from=search. 32 Article 58 South Korean Law No. 4262, amended as Law No. 13874 as of 27 January 2016. 33 Korea Ministry of Environment, 2016 White Paper of Environment (2016), at 300–5. 34 Korea submitted the Intended Nationally Determined Contribution (INDC) containing its plan to reduce the greenhouse gas emissions by 37 per cent from the business-as-usual (BAU, 850.6 MtCO2-eq) level by 2030 to the United Nations Framework Convention on Climate Change (UNFCCC) on June 2015 in order to prepare Paris Climate Change Conference of the UNFCCC in December 2015 (Paris Climate Conference). See Submission by the Republic of Korea, Intended Nationally Determined Contribution, 30 June 2015. 35 International Carbon Action Partnership, Emissions Trading Worldwide, 2015. 36 Article 2(9) LCGGFA; Art. 2(1) KETS Act. The discussion over a trading scheme for other types of greenhouse gases has not yet emerged in detail. 37 Article 12(4) KETS Act; Art. 14 Presidential Decree of KETS Act. The monthly average price of a right to emit was reportedly below 25,000 Korean Won until 2017, and is expected to rise considering the structure of the emissions trading scheme in the second and third phase. See, for the price of the emissions right, Korea Exchange, Market Data, available at: http://marketdata.krx.co.kr/mdi# document=070301. During the first phase, many firms participating in the trading scheme filed lawsuits challenging reasonableness, fairness, and procedural defects of the initial allocation of emissions rights without much success but with potential for the scheme to improve. This position was not unexpected in the initial stages of a new regulatory scheme as we saw from the European Union’s case. 38 The Korean government determines the wholesale electric power price paid to the power generators with a pre-set mechanism similar to cost-of-service. The Korea Power Exchange, the sole operator of the wholesale electric power market in South Korea supervised by the government, amended the Electric Power Market Operation Rules in 2015 to compensate the power generators’ costs to secure

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342 hong sik cho and gina j. choi to fully reflect the social cost of carbon as the emissions trading market is still in its incipient stage.39 Korea does not have a futures and derivatives markets for the KETS yet, although the potential for such has been discussed. The government’s efforts to connect the Korean emissions trading scheme to the carbon markets in other jurisdictions continue. In addition to the nationwide emissions trading scheme to reduce CO2, Korea has also actively promoted the Renewable Portfolio Standard (RPS) to enhance renewable energy generation since 2012.40 Trading of renewable energy certificates, as well as borrowing and banking of the obligation to procure renewable energy are allowed to operate the RPS system in a flexible way.41 The Korean government reinstated the feed-in-tariff system in 2018, which had been in place before it adopted the RPS, to more actively support the renewable energy generation.

16.3.2.2 Water and Ocean Preservation Several statutes regulate human activities which may affect water quality. The Water Quality and Ecosystem Conservation Act (WQECA) is the primary statute regulating the wastewater emissions from business facilities.42 There are fifty-three water pollutants regulated by the WQECA, including copper, lead, and cyanide, among which twenty-eight specified water pollutants are subject to stricter regulation, including phenol and heavy metals. The Public Waters Management and Reclamation Act, the River Act, and the Groundwater Act regulate the effluence and utilization of the relevant water sources. The quality of tap water is more strictly monitored and protected through the Water Supply and Waterworks Installation Act and Drinking Water Management Act, among others. The Fisheries Act provides licensing system for various type of fisheries activities, stricter permit system for large scale fishery activities, and detailed methods and facilities for fishery activities, in order to protect fishery resources and make fishery activities more sustainable.43 The maritime environment (other than fishery resources), is protected through several legal instruments including the Maritime Environment Preservation Act, which regulates any emissions and waste disposal into the ocean.44 The comprehensive investigation of marine ecosystem performed by the Ministry of Oceans and Fisheries45 provides the information required to build up environmental policies for climate change adaptation and biodiversity emissions rights. It is under debate whether the current structure of electricity pricing effectively incentivizes generators to mitigate their greenhouse gas emissions. 39 The Korean government has yet to establish a consistent methodology to assess the social cost of carbon in policy-making other than the emissions trading scheme and has followed the estimates of other jurisdictions in this regard, e.g., the price of the emissions trading right in the EU market. 40 Article 12–5–12–7 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, and its subordinate regulations. Power generators with capacity of 500,000 kW or more are required to procure a certain ratio of electric power through renewable sources. 41 Ibid. Borrowing is delaying the obligation to procure renewable energy up to 20 per cent of the obligated volume until the following periods up to three years and banking is carrying forward the excessive amount of procurement for a certain period to the following period. 42 South Korean Law No. 4260, amended as Law No. 13530 as of 1 December 2015. 43 South Korean Law No. 295, amended as Law No. 13385 as of 22 June 2015. 44 South Korean Law No. 8260, amended as Law No. 13383 as of 22 June 2015. 45 Conservation and Management of Marine Ecosystems Act, South Korean Law No. 15135.

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south korea 343 preservation. The legislation supporting the protection of Antarctic environment, the Act on Activities in the Antarctic Area and the Protection of Antarctic Environment, which is basically the domestic implementation scheme of the Antarctic Treaty, has been recently updated to support the Antarctic initiatives.46

16.3.2.3 Soil Environment Preservation The Soil Environment Conservation Act (SECA) primarily regulates soil pollution and clean-up activities.47 The SECA designates soil contaminants and provides legal grounds for the government to regularly monitor specified soil-contaminating facilities with more than 20,000 litres of capacity that produce, carry, store, and dispose of soil contaminants. The SECA provides two types of measurements subject to the seriousness of contamination. If a site is found to be contaminated at a level higher than the standards of concern, that is, they may harm human health and property or animals and plants’ normal growth, the government may issue a clean-up order to the polluter or any other person who bears clean-up liability under the SECA.48 If a site is found to be contaminated to a level higher than standards requiring specific countermeasures, in addition to clean-up works, the government may designate the contaminated area as a soil conservation measures area and the local government may restrict use of such area, and establish a plan to support the residents and to clean-up and use the soil, in discussion with the MOE.49 The SECA adopts a strict liability scheme for soil contamination with retroactive effect, modelled after the CERCLA of the United States.50 The scope of the persons or firms who may bear strict liability and the retroactive application of such liability have been the subject of enormous controversy. The Constitutional Court gave judgment on the constitutionality of the relevant provisions, and these were later amended to limit the scope of retroactive application and provide subsidies for clean-up costs, to reflect the Constitutional Court’s ruling.51 The SECA imposes liability to clean-up the contaminated soil not only on the polluter but also on the owner, occupier, or operator of the soil-contaminating facility at the time when the contamination occurred, their successor, and the current or past owner or occupier of the contaminated site.52 An innocent purchaser of contaminated land may be exonerated from liability if the purchase was made in good faith and without negligence.53 Further, a landowner who acquired the contaminated land on or before 5 January 1996, a day before the SECO first came into effect, and a previous landowner who transferred the ownership of the contaminated land on or before 5 January 1996, are also exempted from liability.54 However, if the landowner leased or otherwise granted the right to use the land, on or after 6 January 1996 when the SECA first came into effect, to the direct polluter or the occupier or operator of the soil-contaminating facility at the time when the contamination occurs, the landowner is not then exempted from liability.55 46 South Korean Law No. 15787. 47 South Korean Law No. 4906, amended as Law No. 13534 as of 1 December 2015. 48 Ibid., Art. 4.2, 11(3), 14(1), 15. 49 Ibid., Art. 16–22. 50 H. Kim, ‘Is the Korean Soil Environment Conservation Act’s Liability Too Severe?: Learning from CERCLA’ (2006–2007) 11 Albany Law Environmental Outlook 1, at 4. 51 Constitutional Court 2010Hun-Ba167 (23 August 2012). 52 Article 10.3–10.4 South Korean Law No. 4906, amended as Law No. 13534 as of 1 December 2015. 53 Ibid. 54 Ibid. 55 Ibid.

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344 hong sik cho and gina j. choi

16.3.2.4 Chemicals Management The current chemicals regulations encompass the industrial process of manufacturing and distribution of the chemicals or chemical products as well as consumer use of chemical goods. The Korean government introduced a new comprehensive chemicals control system, enacting the Korean Act on Registration, Evaluation, Authorisation and Restriction of Chemicals (Korean REACH) in2015, as the health and safety risk associated with use of chemicals increases. The Korean REACH, modelled after the EU REACH,56 controls the use of chemicals through regulating both chemicals and chemical products. The primary regulations under the Korean REACH are summarized in two aspects though the specific thresholds have been slightly adjusted during the first few years of the scheme. The Act requires the manufacturer, importer, or seller of new or existing chemicals, in cases where the annual amount of the new chemicals is 100 kilogram or more and that of the existing chemicals is one ton or more, to register the chemicals.57 The registration is processed through a two-tier assessment, one of which is the assessment of hazardousness—the chemicals’ characteristics—and the other is the assessment of risk—the chemicals’ potential damage to humans. If the chemicals are found to be hazardous, they are categorized as toxic, permit-required, restricted, or prohibited substances, based on the result of the assessment.58 The scope of chemicals subject to the requirement for risk assessment has been expanded biennially from the chemicals manufactured or imported 100 tonnes or more annually in 2015 to chemicals manufactured or imported 10 tonnes or more annually in 2020 or after. The Act also requires the manufacturers and importers of products containing toxic chemicals to notify the MOE prior to manufacturing or importing the products, if the amount of the contained chemicals is one ton or more in the entire products manufactured or imported annually and the ratio of the toxic chemicals by weight is 0.1 per cent or more per piece of the relevant product.59 The Chemicals Control Act (CCA) primarily regulates the toxic chemicals business to secure the safety of the whole management process of chemicals. The significantly amended CCA took effect in 2015, launching a toxic chemical business licensing system, under which an Off-site Impact Assessment and Risk Management Plan are required in order to obtain a licence.60 The person who operates the business with the licence is obligated to submit an updated Risk Management Plan every five years,61 which enhances the efficacy of the accident response system. The amended CCA adopted a new information disclosure system in order to enhance the citizen’s right to know to build up a more effective accident prevention and response system. The MOE discloses the name and location of each facility treating or discharging the chemicals, discharge and transport amount of chemicals by each business 56 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). 57 Articles 10 South Korean Law No. 11789, as amended Law No. 15512 as of 20 March 2018. The new chemicals less than 100 kilograms will be subject to a reporting obligation. 58 Ibid., Arts. 20, 25, 27. 59 Ibid., Arts. 32–37. Starting from 2019, the obligation to notify will be exempted in a few cases with less risk including the case where it is possible to block the toxic chemicals contained in a product from being exposed to human beings or the nature during normal use of a product. 60 Article 23, 28 South Korean Law No. 4261, as amended Law No. 13534 as of 1 December 2015. 61 Ibid., Art. 41.

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south korea 345 site, and information on the regulated firms’ violation of the CCA.62 Industrial safety in relation to toxic and hazardous chemicals is further regulated by the Ministry of Employment and Labor under the Industrial Safety and Health Act.63 In addition to the existing regulations on the manufacturing, distribution, and industrial use of chemicals, a new regulation on household chemical products and biocides to protect the end users will be effective as of January 2019.64 The new regulation will obligate an importer or a manufacturer of biocidal products or chemicals to obtain a specific approval and provide standards for labeling and advertising. It was discussed and introduced as one of the schemes responding to the tragic events caused by certain humidifier sterilizer products containing toxic chemicals in Korea.65

16.3.2.5 Recycling and Waste Management Korea recently enacted the Resources Recycling Framework Act (RRFA) to come into force in 2018, as a basic policy legislation for recycling,66 in an effort to realize the circular economy and to encourage more sustainable waste management. The RRFA will introduce an endof-waste criteria and waste disposal charge systems to encourage recycling and reduce the administrative burden of processing merchantable goods as wastes.67 It is expected that the individual statutes on waste and recycling management, including the Waste Management Acts (WMA), the Act on the Promotion of Saving and Recycling of Resources (Recycling Act), and the Act on Resource of Circulation of Electrical and Electronic Equipment and Vehicles (Electronic Recycling Act), will be reorganized to support or be combined with the RRFA. Under the current waste management system, the WMA classifies wastes into two categories—commercial waste, generated from the discharging facilities installed and operated under the individual medium-specific statutes, for example, the Water Quality and Ecosystem Conservation Act; and municipal waste, which encompass waste other than commercial waste. Commercial waste is subject to strict regulations on disposal and treatment under the WMA. As for the municipal wastes management, Korea is known to have a highly effective market-based mechanism called Volume-Based Waste Charge System since the mid-1990s, which has enabled the country to have ranked top for municipal solid waste management by the OECD since early 2000s.68 The system requires municipal wastes to be disposed in certain standardized bags as designated by each local government that should be purchased. 62 Ibid., Art. 12. 63 Article 49.2 South Korean Law No. 3532, as amended Law No. 13906 as of 27 January 2016. 64 The Act on the Safety Management of Household Chemical Products and Biocides, South Korean Law No. 15511. 65 An administrative scheme has been adopted to facilitate compensation of the damages in this case. For the details of the administrative compensation scheme, see Special Act on Remedy for Damage Caused by Humidifier Disinfectants, South Korean Law No. 14566. For the details of the damages from the humidifier sterilizer case, see D. U. Park et al., ‘Types of Household Humidifier Disinfectant and Associated Risk of Lung Injury (HDLI) in South Korea’ (2017) 596–7 Science of the Total Environment 53–60. 66 South Korean Law No. 14229, enacted on 29 May 2016. 67 This system is modelled after the EU Waste Framework Directive, Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008. 68 For the details of the system, see S. Park, ‘Factors Influencing the Recycling Rate Under the Volumebased Waste Fee System in South Korea’ (2018) 74 Waste Management 43–51.

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346 hong sik cho and gina j. choi The Extended Producer Responsibility system operated under the Recycling Act and the Electronic Recycling Act requires the manufacturers and importers of certain products to bear the cost of recycling their products and packaging materials, which incentivizes regulated firms to pursue more environment-friendly manufacturing and distribution.69

16.3.2.6 Wildlife and National Resources Preservation The Natural Environment Conservation Act (NECA) provides the principles and basic policy direction for wildlife and natural resources preservation.70 The MOE may designate certain areas as ecological and scenery conservation area, where the state of nature maintains primitiveness, or which greatly merits conservation and scientific research because of its abundant biological diversity, in accordance with the NECA.71 The Wildlife Protection and Management Act provides grounds for protecting wildlife and endangered flora and fauna species, through designating endangered species and limiting capture or collection activities.72 The Act on the Conservation and Use of Biological Diversity and Conservation and the Management of Marine Ecosystems Act have been enacted as implementing legislation of the Convention on Biological Diversity and provide grounds for the government’s activities to preserve biodiversity, regulate inbound and outbound transfer of biological resources, and regulate profit sharing between the provider and user of biological resources.73 The Wetlands Conservation Act, enacted as implementing legislation of the Ramsar Convention, provides grounds for designating wetlands preservation area and Ramsar sites.74 It has been under discussion whether and how to quantify and address natural resource damage. The BEPA provides for two types of environmental damage—‘environmental pollution’ and ‘environmental damage’. ‘Environmental pollution’ means pollution caused by human activities inflicting damage on human health or the environment, which is closer to the typical concept of environmental damage. ‘Environmental damage’ means conditions inflicting serious damage on intrinsic functions of the natural environment by over-hunting or over-gathering wild animals or plants, destroying their habitats, disturbing the order of the ecosystem, impairing natural scenery, washing away topsoil, etc., which is similar to natural resource damage. The BEPA stipulates that ‘the person who causes any environmental pollution or damage shall be liable to prevent the relevant pollution or damage and to recover and restore the polluted or damaged environment, as well as to bear expense incurred in restoring the damage resulting from the environmental pollution or environmental damage’, confirming the polluter-pays principle and adopting a strict liability system with regard to both environmental pollution and damage. Thus it is reasonable to interpret the BEPA as providing legal grounds to seek compensation for natural resources damage. However, there has not been a detailed dispute where natural resources damage has been claimed. In this regard, more instrumental measures might be needed to include and address the natural resources claim in environmental damage 69 Article 16(1) Recycling Act, South Korean Law No. 4538, amended as Law No. 14230 as of 29 May 2016; Art. 15 Electronic Recycling Act, South Korean Law No. 8405, amended as Law No. 13038 as of 20 January 2015. 70 South Korean Law No. 4492, amended as Law No. 13885 as of 27 January 2016. 71 Ibid. 72 South Korean Law No. 7167, amended as Law No. 13882 as of 27 January 2016. 73 Articles 11–13, 19, 21–15 South Korean Law No. 11257, amended as Law No. 12459 as of 18 March 2014. 74 Articles 8–9 South Korean Law No. 5866, amended as Law No. 13880 as of 27 January 2014.

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south korea 347 suits, such as the relevant schemes under the US CERCLA or Oil Pollution Act, which grant the authority to seek natural resources damages to the government or trustees of the CERCLA or Oil Pollution Act actions.75 The newly introduced Korean Environmental Liability Act limits the environmental damage subject to the Act to that inflicted on the life, body, or property of third parties and does not yet cover natural resource damage.

16.4 Implementation Framework 16.4.1 Administrative and Criminal Enforcement The core structure of Korean environmental law enforcement might be described as systematic and complementary coordination between the MOE with its regional offices and the Public Prosecutors’ Office (PO) under the Ministry of Justice (MOJ). In terms of enforcement actions, the MOE may choose one or multiple options between administrative orders to improve, temporary or permanent closure of the relevant facilities, an administrative surcharge, and a criminal investigation to forward the case to the PO. The special administrative police agents (SAPA) appointed by the PO, working for the regional offices of the MOE, detect, investigate, and forward cases of environmental law violations to the PO for prosecution. The SAPA has the authority to carry out compulsory investigations under the PO’s supervision.76 The MOE and the PO have jointly launched task force teams to detect and secure evidence of environmental offences, in an effort to respond to accidents or offences causing massive environmental harms more efficiently at an earlier stage.77 The administrative and criminal sanctions are based on medium-specific statutes, while the most serious violations are also subject to the Act on the Control and Aggravated Punishment of Environmental Offenses. Both the individual who directly commits the violation and the corporation that person is working for, may be subject to the criminal fine. Minor violations are subject to administrative fines. For example, if a person discharges industrial wastewater without properly obtaining the relevant licence or filing an amend report for such licence, as required under the Water Quality and Ecosystem Conservation Act (WQECA), the MOE may order temporary suspension or permanent closure of the facility subject to the possibility of improvement or risk affecting the public water body78 and/or administrative surcharge of up to two to ten-fold of the company’s avoided cost79 and clean-up cost.80 Administrative sanctions may be appealed to the court. If the MOE 75 42 U.S.C. §§ 9601–9675; 33 U.S.C. §§ 2701–2761. 76 Article 15.2 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. 5(xxii), 6(xix) 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. 77 For one of the most recent joint task force team, see MOE, Press Release, dated 15 February 2016. 78 Articles 33, 44 South Korean Law No. 4260, amended as Law No. 13530 as of 1 December 2015. 79 i.e. the cost that the company could save through spending less in preventing environmental hazards from being emitted to the public water body. 80 Article 12 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.

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348 hong sik cho and gina j. choi chooses to forward the case to the PO’s prosecution or the PO independently decides to prosecute the case, the person will face a criminal trial and may be subject to imprisonment for up to seven years or a criminal fine of up to 70 million Korean Won.81 The employer company may be also subject to the criminal fine, unless it can prove that it was not negligent in supervising the relevant business activities to prevent the offence. Environmental offences are hard to detect and their investigation and enforcement often runs up against the problem of proving causation, as elsewhere. There is, as yet, no specific statute or established legal principle to mitigate the burden of proof for criminally sanctioning environmental offences and the knowledge requirement is often at issue.82 There is also ongoing debate between the opponents of criminalization of environmental offences and proponents of stricter criminal enforcement of environmental offences.

16.4.2 Private Enforcement of Environmental Law The private enforcement of environmental law in Korea has not been active due to the limited justiciability of this issue and the restrictive standing rules, as well as the court’s passive interpretation of constitutional grounds of the environmental right, as seen in section 16.2.83 The Korean courts have exerted more efforts in addressing environmental damage based on property rights and tort theories. For example, the Supreme Court tried to mitigate the burden of proof on plaintiffs claiming environmental damage by adopting the so-called ‘probability theory’, which does not require strict scientific evidence to prove causation, thus lowering the required level of proof to considerable probability.84 However, judicial remedies are still not sufficient to address environmental damage, given that the plaintiff faces difficulties in quantifying such damage and the Korean legal system does not recognize punitive damages or class actions, which means that individual plaintiffs are required to calculate and prove the damage amount themselves. More recently, two separate legislative schemes have been adopted which are expected to facilitate private enforcement of the environmental law. In 2016, a comprehensive damage compensation scheme was launched to lessen the aforementioned obstacles in remedies for environmental damage.85 The Environmental Damage and Relief Liability Act (Environmental Liability Act) provides that the causation shall be assumed if there is considerable probability that the facility at issue caused the damage, which emulates the ‘probability theory’ about causation developed by the courts.86 The Act provides a cap on the damage compensation

81 Articles 33, 75 South Korean Law No. 4260, amended as Law No. 13530 as of 1 December 2015. 82 D. L. Kim, ‘The Problem of Causation in Environmental Crime’ (2014) 36 Environmental Law Review [Korea] 241–70. 83 See for detailed discussions on the judicial reform required to effectuate environmental law in a political economic context, H. S. Cho, ‘Law and Politics in Environmental Protection: A Case Study on Korea’ (2002) 2 Journal of Korean Law 45, at 76–80. 84 See e.g. South Korean Supreme Court, 72Da1774 (10 December 1974), South Korean Supreme Court, 81Da558 (12 June 1984), South Korean Supreme Court, 95Da2692 (27 June 1997, South Korean Supreme Court, 2000Da65666 (22 October 2002), South Korean Supreme Court, 2003 Da2123 (26 November 2004). 85 The Environmental Damage and Relief Liability Act, South Korean Law No. 12949. 86 Ibid., Art. 9.

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south korea 349 amount in lieu of alleviating the burden of proof on causation.87 The Act also introduced a mandatory insurance system, which requires the owner or operator of pollution-emitting facilities, to mandatorily purchase environmental liability insurance, of which terms and conditions are prescribed by sub-regulations of the Act.88 Another reason that private enforcement has not been frequently used to address environmental damage is that the Korean legal system does not recognize class actions or punitive damages. Given that the Environmental Liability Act does not eliminate the victim’s right to pursue civil lawsuit separately from the compensation under the Act, and that the Act does not concern injunctive relief, the existing issues concerning private enforcement will continue. Starting from June 2019, an award for treble damages will be allowed for environmental diseases attributed to environmental hazards from industrial process when those damages are caused by wilful conduct or gross negligence.89 The new scheme introduced by the enactment of the Environmental Health Act does not, however, alleviate the burden of proof on causation. The draft Act originally allowed an award for damages up to a ten-fold actual damage, but the ceiling amount has been reduced to three-fold in the end. The government explains that this system is a type of punitive damage, while its practical efficacy as penalty has been significantly reduced than what the original draft provided. Aside from general civil litigation procedure and the compensation system under the Environmental Liability Act, Korea provides a statutory alternative dispute resolution system, Environmental Dispute Mediation, for disputes between private parties, and a private party and the government.90 The Central Mediation Committee, a standing committee comprised of fifteen commissioners under the direct supervision of the MOE, reviews cases where the claim amount is more than 100 million Korean Won, and also cases to which the government is a party.91 The Local Mediation Committee, a non-standing committee established under the supervision of local government, reviews cases with a claim of 100 million Korean Won or less.92 The decision of the Local Mediation Committee can be appealed to the Central Mediation Committee.93 The mediation plan accepted by both parties and the arbitration award issued by the Central Mediation Committee is final, conclusive, and binding on the parties, except for a few cases with procedural problems.94

16.5 Conclusion Based on legislative developments in environmental protection and the country’s response to climate change, it is to be expected that Korea will have a more sophisticated implementation 87 Ibid., Art. 7. The cap varies depending on the capacity of the relevant industrial facility and types of environmental hazards emitted from the facility. The maximum cap designated by the Presidential Decree of the Act is 200 billion Korean Won (approximately 190 million US dollars.) 88 Articles 17–22 South Korean Law No. 12949. 89 See Art. 19 Environmental Health Act, South Korean Law No. 15583. 90 Environmental Dispute Mediation Act, South Korean Law No. 4258, amended as Law No. 13602 as of 22 December 2015. 91 Article 6 South Korean Law No. 4258, amended as Law No. 13602 as of 22 December 2015. 92 Ibid. 93 Article 42(1) South Korean Law No. 4258, amended as Law No. 13602 as of 22 December 2015. 94 Ibid., Arts. 33, 45.4.

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350 hong sik cho and gina j. choi of the environmental law in the coming decades, through an advanced legal infrastructure and culture. The KETS and other incentive-based instruments to reduce the greenhouse gases are also expected to be settled in, so as to provide a more effective climate regime.

16.6 Selected Bibliography Cho, H. S., ‘An Overview of Korean Environmental Law’ (1999) 29(3) Environmental Law 501–14. Cho, H. S., ‘Law and Politics in Environmental Protection: A Case Study on Korea’(2002) 2 Journal of Korean Law, 45. Cho, H. S., J. M. Leitner, J.-H. Lee, and S. W. Heo, ‘Korean Green Growth: A Paradigm Shift in Sustainability Policy, and its International Implications’ (2014) 13 Journal of Korean Law 301. S.-W. Heo, ‘The Judicial Review Criteria in Korean Administrative Litigation: The Proportionality Principle in Korean Administrative Law and Democratic Accountability’ in J. Yeh (ed.), The Functional Transformation of Courts: Taiwan and Korea Comparison (Göttingen: V&R Unipress, 2015). Kim, H., ‘Is the Korean Soil Environment Conservation Act’s Liability Too Severe?: Learning from CERCLA’ (2006–07) 11 Albany Law Environmental Outlook 1. Kim, S. H. and H. S. Cho, ‘Green Growth Policy in Korea’ in D. A. Farber and M. Peeters (eds.), Climate Change Law (Cheltenham: Elgar Encyclopedia of Environmental Law, 2016). Mayali, L. and J. Yoo (eds.), Current Issues in Korean Law, The Robbinson Collections (Berkeley: University of California at Berkeley, School of Law, 2014). Eschborn, N. et al., ‘Environmental Policy in South Korea: Problems and Perspectives’ (2015) KAS Journal on Contemporary Korean Affairs, Konrad Adenauer Stiftung. Korean Ministry of Environment, 2018 White Paper of Environment (August 2018).

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chapter 17

U n ited K i ngdom Stuart Bell

17.1 Overview

352

17.2 Allocation of Powers

352

17.2.1 The Forces of History 17.2.2 External Forces—The Impact of the European Union 17.2.3 Internal Forces—The (Weak) Constitutional Basis for UK Environmental Law 17.2.4 Internal Forces—Constitutional Complexity in a Devolved UK

352 354 355

356

17.3 Structure and Substance of Environmental Law

358

17.4 Implementation Framework

364

17.5 Conclusion: Fragmentation and Integration? UK Environmental Law in Flux

372

17.6 Selected Bibliography

373

17.3.1 Industrial Pollution Control 17.3.2 Air Quality and Climate Change 17.3.3 Water Quality 17.3.4 Waste Management 17.3.5 Nature Conservation and Landscape Protection 17.4.1 Central Government 17.4.2 Local Government 17.4.3 Specialist Agencies 17.4.4 The Role of Courts and Tribunals 17.4.4.1 Access to Justice 17.4.4.2 The Requirement of a ‘Sufficient Interest’ 17.4.4.3 Time Limits 17.4.4.4 Costs and Funding 17.4.4.5 A Specialist Environmental Court 17.4.5 Enforcement

359 359 361 362 363

365 366 366 367 368 369 369 370 371 371

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352 stuart bell

17.1 Overview As in many other modern regulatory states, environmental regulation in the United Kingdom (UK) is complex and reflects a mixture of international, regional, and national obligations and has achieved a level of maturity with multi-layered governance systems and diverse regulatory approaches. The problem of complexity in environmental law is certainly not unique to the UK and the challenge of defining and analysing environmental law outside of any jurisdictional context has been noted.1 There are, however, grounds for arguing that the complexity of UK environmental regulation goes beyond these conceptual challenges. In 2012, the United Kingdom Environmental Law Association criticized the state of environmental law in the UK as being overly complex, incoherent, and lacking in integration and transparency.2 In doing so it identified multiple factors that suggested that the UK’s approach to designing, making, and implementing environmental law created extra and unnecessary levels of complexity—to such an extent that it was difficult for those involved in environmental regulation to understand and interpret the law. These criticisms provide some context for the pre-emptive defence that this chapter does not attempt to provide a comprehensive mapping of the conceptual contours of e nvironmental law in the UK. Accordingly, the first section of this chapter considers the allocation of power for environmental regulation in the UK. It does so by considering three competing forces that have helped to shape the ‘infrastructure’ of environmental law. The second section provides an outline of the structure and substance of the core areas of environmental regulation. The aim here is to summarize the techniques employed to regulate environmental quality, land use, waste management, nature conservation, and industrial pollution control. The final section addresses implementation.

17.2 Allocation of Powers This section considers three significant forces that have helped to shape UK environmental law. The first is historical; the second highlights the impact of external influences; the third highlights two key internal factors, namely the evolving nature of the UK’s constitution and the emergence of new forms of ‘environmental rights’ and the constrained fragmentation of environmental law and infrastructure across the individual countries of a devolved United Kingdom.

17.2.1 The Forces of History The first of these forces is historical, with the Victorian roots of environmental law influencing certain areas of modern environmental law, the institutional framework, and 1 E. Fisher et al, ‘Maturity and Methodology: Starting a Debate about Environmental Law Scholarship’ (2009) 21 Journal of Environmental Llaw 213. 2 UKELA, ‘The State of UK Environmental Legislation in 2011–2012’, available at: http://www.ukela.org.

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united kingdom 353 elements of national regulatory style. Analysing how and why environmental laws emerged provides clues to the origins of identity, what we might term the ‘DNA’ of modernday regulation. From early times there were rudimentary local controls over small-scale pollution.3 These controls supplemented the private law rights in nuisance that addressed neighbourly conflicts arising from the typically dirty, noisy, smelly existence of those living in Mediaeval England.4 Throughout the early years of the nineteenth century, however, the intensive and uncontrolled industrialization and urbanization of English cities caused pollution on a much wider scale. In the face of escalating public health problems and widespread environmental degradation, the courts were asked to apply principles previously used to balance competing interests in neighbouring land to the much broader and extensive impacts of the industrial revolution. The effectiveness of this judicial response has been the subject of debate.5 Whilst nuisance law may have protected private property rights, the courts were unable to provide a consistent, coherent, and comprehensive response to the negative externalities of polluting industries. Accordingly, the state sought to fill the gap.6 Although the scale of statutory intervention was significant, the substantive scope of individual statutes was narrow with little consideration given to the need for wider, more integrated solutions. These initiatives were not triggered by overarching environmental policy objectives but by a reactive, ‘quick fix’ pragmatism. This often led to the displacement of consequences of pollution.7 The outcome was reactive and piecemeal legislation which although functional and effective in the context of the specific problems that were being addressed, were also inflexible and lacked substantive coherence. This lack of substantive coherence was also reflected in structural arrangements. As different issues arose, more detailed layers of legislation and policy were added, resulting in a largely unplanned but complex environmental infrastructure. Thus, whilst the UK had relatively early pollution control regimes that had remarkably long lifespans, the effect was to produce a ‘fragmented accretion of common law, statutes, agencies, procedures and policies’.8 The long history of environmental controls in the UK has also had an impact on modern regulatory style. The early pollution control schemes relied heavily upon technocratic, closed, administrative processes implemented through high levels of discretion in stark

3 L. Etherington, ‘Canons of Environmental Law: Pollution of Churches and the Regulation of the Medieval “Environment” ’ (2016) 36 Legal Studies 566. 4 See E. Cockayne, Hubbub: Filth, Noise & Stench in England (New Haven: Yale University Press, 2007). 5 See J. Brenner, ‘Nuisance Law and the Industrial Revolution’ (1974) 3 Journal of Legal Studies 403; J. P. S. McLaren, ‘Nuisance Law and the Industrial Revolution: Some Lessons from Social History’ (1983) 3 Oxford Journal of Legal Studies 155; and B. Pontin, ‘Nuisance Law and the Industrial Revolution: A Reinterpretation of Doctrine and Institutional Competence’ (2012) 75 Modern Law Review 1010. 6 Notable examples include the Public Health Acts 1848 and 1875, the Alkali Acts 1863, 1874, and 1881, the Sanitary Act 1866, and the Rivers Pollution Prevention Act 1876. 7 See M. Lobban, ‘Tort Law, Regulation and River Pollution: the Rivers Pollution Prevention Act and its implementation’ in J. Steele and T. T. Arvind (ed.), Tort Law and the Legislature (Oxford: Hart Publishing, 2012). 8 N. Carter and P. Lowe, ‘The Establishment of a Cross-Sector Environment Agency’ in T. Gray (ed.), UK Environmental Policy in the 1990s (London: Macmillan Press, 1995), 40.

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354 stuart bell contrast to more modern participative processes backed by strict environmental quality standards and extensive judicial enforcement.9

17.2.2 External Forces—The Impact of the European Union The effects of the legacy of the historical development of environmental law are subtle and embedded when compared to the direct impacts of membership of the European Union (EU). Most current environmental law and policy has been introduced to implement the requirements of European law.10 The scale of the task of approximating European law has had a direct impact upon both the complexity of domestic law and the manner in which environmental law has been created. Many detailed European provisions are transposed directly into secondary legislation. This ‘mirror image’ approach has resulted in the large growth of secondary legislation in environmental law and is reflected in the substance of law. When transposing the requirements of Directives, two relatively simplistic approaches have been taken to avoid problems of non-conformity. The first approach has been to replicate the wording of the relevant Directive without any further attempt to identify the best way of assimilating European law into domestic legislation (so-called ‘copy out’).11 The second approach has been to draft domestic legislation in very broad terms, but with direct and specific references to the detailed obligations found in the relevant Directive.12 These approaches ensure that no more and no less than the requirements of European law are effectively transposed but also mean that any lack of clarity or uncertainty within the original Directives are transmitted into national law. Membership of the EU has brought other profound changes in environmental governance, regulatory style, and in the UK courts. The system of monitoring and enforcement of European obligations via the European Commission and the Court of Justice of the European Union (CJEU) has proven to be an effective tool.13 European regulatory style has also provided the impetus for changing and/or the reshaping of traditional approaches to encompass regulatory innovation and a marked shift away from a pragmatic, flexible decentralized approach to a ‘new formalism’.14 Finally, the influence of European environmental law on the UK courts has also been transformative with the CJEU promoting a broader, more purposive approach to interpreting environmental legislation. 9 Lobban, ‘Tort Law, Regulation and River Pollution’. 10 In considering the impact of leaving the EU in 2017, it was estimated that there were over 1,100 different pieces of European derived legislation that related to policy areas under the control of the UK Department of Environment, Food and Rural Affairs. The House of Lords European Union Committee, Brexit: Environment and Climate Change 12th Report of Session 2016–17, HL Paper 109, 10. 11 e.g. the schedules of development subject to environmental impact assessment in the Town and Country Planning (Environmental Impact Assessment) Regulations 2011. 12 e.g. the Environmental Permitting (England and Wales) Regulations 2016. 13 In evidence to the House of Lords Select Committee it was suggested that fear of infraction at a European level was a more significant driver for legislative and policy change then decisions in the domestic courts, see The House of Lords European Union Committee, Brexit: Environment and Climate Change, para. 70. 14 R. MacRory, ‘Shifting Discretions and the New Formalism’ in O. Lomas (ed.), Frontiers of Environmental Law (Chichester: Wiley Publishing 1991).

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united kingdom 355

17.2.3 Internal Forces—The (Weak) Constitutional Basis for UK Environmental Law In the absence of a codified constitution, the UK has no basis for entrenched and legally enforceable substantive environmental values or norms which could shape national environmental infrastructure through clearly identifiable rights. But it would be wrong to think that constitutional forces play no role in allocating power for environmental regulation. Such power can be found in statutes and other sources of law and policy. For example, constitutionally significant statutes such as the European Communities Act 1972 and the Human Rights Act 1998 have given effect to the supremacy of European law and certain human rights principles. In addition, it is possible to identify other sources of law that have created procedural, derivative,15 and what might be termed substantive rights which collectively form a weak constitutional basis for environmental rights. For example, procedural rights of public participation found in the Aarhus Convention and European legislation have been transposed into national legislation and been given legal effect through the courts.16 Derivative environmental rights emerging from the ‘greening’ of human rights at the European level also play a weak constitutional role.17 Substantive environmental rights are much more difficult to identify, subject to two possible exceptions.18 First, the integration of environmental principles—in particular duties connected to the principle of sustainable development—can be seen in diffuse forms, creating a patchwork of duties, objectives, and aims with these principles in mind.19 Six key environmental principles are also incorporated into general national law and policy through the EU Treaty and individual Directives.20 The challenge of translating such general principles into substantive legal rights in the national context is problematic. Whilst the national courts have, on occasion, interpreted certain Directives in a manner consistent

15 Such rights are strictly derivative because ‘the duty is not one of protecting the environment, but one of protecting humans from significantly harmful environmental impacts’, see A. Boyle, ‘Human Rights or Environmental Rights? A Reassessment’ (2008) 18(3) Fordham Environmental Law Review 471. For use of such rights in the environmental context see Lopez Ostra v Spain (1994) 20 EHRR 277; Guerra v Italy (1998) 26 EHRR 357, and Tatar v Romania (2009) 21(3) Journal of Environmental Law 506; and more generally, I. Cenevska, ‘A Thundering Silence: Environmental Rights in the Dialogue between the EU Court of Justice and the European Court of Human Rights’ (2016) 28 Journal of Environmental Law 301. 16 M. Lee and C. Abbott, ‘The Usual Suspects? Public Participation under the Aarhus Convention’ (2003) 66 Modern Law Review 80. 17 Margin of appreciation means that it is difficult to establish derivative environmental rights under Art. 8 European Convention on Human Rights (ECHR) (the right to a private life); see Powell and Rayner v United Kingdom (1990) 12 European Human Rights Reports 355; Hatton v United Kingdom (2002) 34 EHRR 1; (2003) 37 EHRR 28. 18 Perhaps mirroring the reluctance to develop such rights at the European level, see Cenevska, ‘A Thundering Silence’, at 320. 19 A. Ross, ‘Why Legislate for Sustainable Development? An Examination of Sustainable Development Provisions in UK and Scottish Statutes’ (2008) 20 Journal of Environmental Law 35. 20 Sustainable development is referred to in Art. 3 Treaty on European Union (TEU) and five other principles (i.e. relating to polluter-pays, precaution, prevention, integration, and rectification at source are found in Art. 191(2) Treaty on the Functioning of the European Union (TFEU).

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356 stuart bell with those principles,21 the general view has been that such principles have no legal force but should be considered as policy objectives.22 The second method of embedding enforceable rights is through the creation of sufficiently clear and certain environmental targets in primary legislation. It has been argued that the Climate Change Act 2008 sets sufficiently clear targets for greenhouse gas (GHG) reduction to create a form of substantive rights in the UK’s political constitution.23

17.2.4 Internal Forces—Constitutional Complexity in a Devolved UK Whilst the weak basis for constitutional rights across the UK as a whole resides mostly in drawing inferences from various sources of law, there is a more obvious and direct influence on the allocation of power across the individual countries of the United Kingdom. The ongoing process of devolution has shifted responsibility for large portions of environmental law and policy away from the UK Parliament in Westminster to national executives in three of the four constituent countries.24 This has set the scene for possible diversification and distinctiveness, although the overarching need to meet international and European obligations means that there are substantive limits to the variation. The term ‘UK environmental law’ has always been somewhat misleading. Certainly, there has never been a single body of environmental protection laws that apply across the UK. But then again, the idea of a formal federal system of government would also not capture the complex constitutional framework for environmental law in the UK. Historically, the existence of separate and distinct legal systems in Scotland and Northern Ireland was reflected in slight differences in the development of relevant private law tools and statutory provisions.25 Until formal devolution of environmental law-making powers in 1998,26 the differences in statutory frameworks were, however, largely structural, or in the case of Northern Ireland, notable mostly for delays and inadequate implementation of the requirements of European law.27 The fragmentation of environmental law-making has, however, accelerated post-devolution with separate law-making powers extended to all the constituent countries. This picture of non-uniformity in environmental laws is underscored by the fact that although the devolution of powers was comprehensive, the exact nature of law-making powers varies in each country.

21 See Downs v Secretary of State for Environment, Food and Rural Affairs [2009] Environmental Law Reports 19. 22 R v Secretary of State for Trade and Industry, ex parte Duddridge [1995] Environmental Law Reports 151. 23 A. McHarg, ‘Climate Change Constitutionalism? Lessons from the United Kingdom (2011) 2 Climate Law 469. 24 i.e. Northern Ireland, Scotland, and Wales. 25 e.g. the law of nuisance in Scots law does not distinguish between private and public nuisance, and is somewhat narrower in scope than in England and Wales see, G. Cameron, ‘Scots and English Nuisance . . . Much the Same Thing?’ (2008–9) 9(1) Edinburgh Law Review 98–121. 26 Under the Scotland Act 1998, Government of Wales Act 1998, and the Northern Ireland Act 1998. 27 K. Morrow and S. Turner, ‘The More Things Change, the More They Stay the Same? Environmental Law, Policy and Funding in Northern Ireland’ (1998) 10(1) Journal of Environmental Law 41.

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united kingdom 357 Scotland has extensive powers to pass primary legislation on environmental matters, subject to certain areas ‘reserved’ for consideration by the UK Parliament.28 In some cases, these powers have been used to implement EU and international obligations and therefore there is a close similarity with aspects of legislation elsewhere in the UK.29 but there have been significant examples of Scottish initiatives going further than ‘minimum compliance’30 or through the use of innovative, integrative regimes31 or unilateral setting of stretching environmental goals.32 In Northern Ireland there are similar powers to make primary environmental legislation,33 but the instability of the political context has had a limiting effect on both the development of coherent environmental governance mechanisms and related laws. For example, the breakdown of the power-sharing agreement agreed as a precursor to devolution34 and subsequent suspension of the Northern Irish National Assembly meant that little or no progress was made on implementing a separate body of environmental statutes from 2002 until 2007. Following a fresh agreement on power sharing, devolved powers in relation to environmental law have been utilized more regularly.35 Notwithstanding increased legislative activity, particularly in the context of compliance with EU obligations, a combination of factors have contributed to serious criticisms of the state of environmental regulation and governance in Northern Ireland.36 These factors, when combined with the political fragility of power, have meant that progress has been patchy at best and in many ways Northern Ireland is arguably is still some way behind the rest of the UK.37 Progress in Wales has taken a yet again different route post devolution across three quite distinct and progressive phases of transfer of legislative powers.38 In the first phase, under the Government of Wales Act 1998, devolution of environmental law-making was 28 Scotland Act 1998, ss. 28–30, 38 (as amended). Reserved matters are list in Sch. 5 and include areas that have environmental implications such as energy, transport, and fishing outside national waters. 29 e.g. Nature Conservation (Scotland) Act 2004. 30 e.g. Environmental Assessment (Scotland) Act 2005, s. 4(4) which covers the assessment of ‘Strategies’ as well the Plans and Programmes required under the Strategic Environmental Assessment Directive. 31 e.g. the Water Environment and Water Services (Scotland) Act 2003 introduced river basin management planning in the UK. 32 e.g. Climate Change (Scotland) Act 2009 setting a stretching interim target for CO2 reduction of 42 per cent as against the target of 34 per cent for the UK as a whole. 33 Northern Ireland Act 1998, ss. 5–7. Exceptions are found in Sch. 2 and matters reserved to the UK Parliament in Sch. 3. 34 Under the ‘Good Friday Agreement’. 35 Northern Ireland (St Andrews Agreement) Act 2006, the Water and Sewerage Services (Amendment) Act (Northern Ireland) 2010, and the Wildlife and Natural Environment Act (Northern Ireland) 2011. 36 There have been many long-standing criticisms of governance arrangements including significant overlaps in responsibility for environmental matters and the failure to separate environmental regulators from government departments with primary responsibility for environmental policy, see further, S. Turner, ‘Laying the Foundations for a Sustainable Northern Ireland: The Review of Environmental Governance’ (2008) 58(4) Northern Ireland Legal Quarterly 423. 37 It is notable that over ten years after a comprehensive review of environmental governance in Northern Ireland, no progress had been made on the central recommendation to create an independent Environmental Protection Agency, see S. Turner, ‘Laying the Foundations for a Sustainable Northern Ireland: The Review of Environmental Governance’ (2007) 58(7) Northern Ireland Legal Quarterly 422. 38 P. Bishop and M. Stallworthy (eds.), Environmental Law and Policy in Wales: Responding to Local and Global Challenges (Cardiff: University of Wales Press, 2013).

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358 stuart bell initially limited to secondary legislation and therefore the historical links to UK (and English) primary legislation were retained.39 Enhanced legislative powers were granted in 2006,40 but unrestricted primary law-making powers were only finally granted in 2011.41 In pursuing a policy of prioritizing a broad conception of sustainable development, there have been significant administrative restructuring and legislative initiatives in Wales that promote an overarching philosophy of sustainable development and the integration of environmental protection across a range of different policy areas.42 In particular, since 2015, and although relatively late in terms of full legislative competence, Wales has arguably done more than other UK countries in seeking to establish a distinctive identity in terms of environmental law and policy.43 Whilst it is certainly arguable that the process of devolution has accelerated the fragmentation of environmental law and policy within the four constituent countries, nevertheless, there is still a value and purpose in analysing the United Kingdom’s model of environmental law. Any fragmentation of law-making powers is still constrained to a certain extent by several key factors. All foreign policy issues, including negotiation of environmental obligations from international agreements or most critically from membership of the EU are non-devolved. Thus, the common core running through all legislation across the devolved countries comes from obligations under European environmental law. Even with a UK outside the EU, it is likely that there will be advantages in seeking to maintain a stable and harmonized core of UK environmental law to avoid imbalances that might have distorting effects for those who are regulated and detrimental environmental impacts.44

17.3 Structure and Substance of Environmental Law ‘UK environmental law’ is used here as a convenient ‘catch-all’ phrase that collates a core of statutes, regulations, formal and informal policies, and guidance dealing with pollution control and waste management, environmental quality standards, nature conservation, and 39 Government of Wales Act 1998, s. 22 and more generally, V. Jenkins, ‘Environmental Law in Wales’ (2005) 17(2) Journal of Environmental Law 207. 40 Government of Wales Act 2006, Sch. 7. 41 Whilst further amendments to the scope and extent of legislative competence have been added under the Wales Act 2014 and Wales Act 2017—the latter of which established Wales’ legislative competency on the same footing as Scotland (i.e. moved from being a conferred matters model to a reserved matters model). 42 e.g. the formation of the main environmental regulator in Wales, Natural Resources Wales, integrated the main pollution control agency (Environment Agency, Wales), nature conservation body (Countryside Council for Wales), and the Forestry Commission. 43 Well-Being of Future Generations (Wales) Act 2015, Environment (Wales) Act 2016, and the Planning (Wales) Act 2015, which meet the obligation to ‘make appropriate arrangements to promote sustainable development’, see Government of Wales Act 2006, s. 79(1) and H. Davies, ‘The Well-Being of Future Generations (Wales) Act 2015—A Step Change in the Legal Protection of the Interests of Future Generations?’ (2017) Journal of Environmental Law 165. 44 e.g. following the devolution of powers to raise taxes on the landfill of waste to Scotland, similar rates of taxation have been maintained in order to avoid incentives to import/export waste around the UK.

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united kingdom 359 land use planning. The focus here is on this core but with a recognition that the boundaries are somewhat arbitrarily drawn. Thus, this coverage is subject to several general qualifications. First the limited coverage excludes many relevant areas of substantive law and policy outside this self-defined core.45 Second, the laws covered tend to emphasize traditional top-down, command and control regulation at the expense of more integrative forms of environmental law and policy that emphasize governance and shared responsibility. Third, devolution of law-making powers means that any summary of the structure and substance of ‘UK’ environmental law cannot capture the breadth of variation in law and policy across the individual countries. Therefore, unless specified, the focus in this section is on the law in England but with a reminder that the laws in the other countries of the UK may vary, but not significantly.

17.3.1 Industrial Pollution Control Industrial pollution control in the UK is regulated under an integrated system that attempts to streamline a wide range of substantive obligations into a single permitting procedure for prescribed industrial installations and waste management activities. The Environmental Permitting (England and Wales) Regulations 201646 provide an umbrella framework for pollution control permits that standardizes procedural requirements and impose a general duty on regulators to ‘exercise . . . relevant functions so as to achieve compliance with’ a range of European Directives including the Industrial Emissions (IPPC) Directive and miscellaneous Directives on waste management and environmental quality.47 Primary responsibility for larger scale (and riskier) operations rests with the Environment Agency with local authorities playing a residual role for smaller scale activities.48 Where the IED (IPPC) Directive is engaged, permit conditions must be set by reference to the ‘Best Available Techniques’ which link to European-wide reference documents that set emissions limit value (ELV) standards for classes of installations.49 There is provision for standard ized permits with a single requirement to comply with a set of pre-agreed conditions for non-complex operations.50 Operating an industrial installation covered by the Regulations without a permit or in contravention of the conditions of a permit is a criminal offence.51

17.3.2 Air Quality and Climate Change Legal and policy measures on air quality are complex and diverse featuring a mixture of industrial emissions controls,52 product standards for motor vehicles,53 and local initiatives

45 Including areas such legislation dealing with historically contaminated land, noise, chemicals regulation, agriculture, energy including renewables, transport, and animal welfare. 46 Made under the Pollution Prevention and Control Act 1999, ss. 2, 7(9), and Sch. 1. 47 See Sch. 7–22 where this phrase is used in conjunction with separately identified Directives. 48 Regulation 32. 49 See http://eippcb.jrc.ec.europa.eu/reference/. 50 Regulations 26–7. 51 Regulation 38. 52 Under the Environmental Permitting (England and Wales) Regulations 2016. 53 See EC Regulation No. 443/2009.

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360 stuart bell intended to address pollution hotspots.54 The central framework for policy can be found in the UK’s National Air Quality Strategy introduced under the Environment Act 1995 and given legal force under the Air Quality Regulations 2010.55 The Regulations set out alert thresholds and target values for pollutants in the Directive on ambient air quality and Cleaner Air for Europe (known as the CAFE Directive).56 The Regulations impose a strict legal duty on the Secretary of State to ‘ensure’ that the EU limit values are not exceeded.57 In practice, however, the obligation to secure compliance with this duty is delegated to the Environment Agency and local authorities using general pollution control powers and local powers to manage air quality.58 The gap between a centralized, strict legal duty to ensure that the targets are met and the delegation of local responsibility for meeting those targets has proved to be problematic. The inadequacy of the air quality plans and the lack of progress in meeting the obligations under the CAFE Directive were the subject of a successful challenge before the Supreme Court and CJEU which affirmed that the failure of the UK Government to take all necessary measures to secure compliance with the targets was in breach of the requirements of the Directive.59 The UK has taken an innovative approach in embedding national climate change targets within primary legislation. The Climate Change Act 2008 fixes medium- and long-term emissions reduction targets and makes provision for five-yearly carbon budgets that are scheduled to run until 2032.60 These budgets provide a focal point for integrated action across different policy areas including renewable energy, transport, energy efficiency, and the reform of the energy markets. The Act also established the independent Committee on Climate Change which is responsible for monitoring progress towards the targets in addition to providing independent advice on carbon budgets.61 Whilst this was a bold initiative that reflected a very specific commitment to action, there are differing views over the extent to which the targets are binding over future governments, or just what remedies would be available should the targets not be met.62 Whilst the Climate Change Act sets out the targets to be achieved, the operative measures to reduce emissions of greenhouse gases utilize a range of approaches. These include market-based mechanisms under the EU emissions trading scheme and economic instruments such as a tax on non-domestic users of energy to incentivize energy–efficiency measures.63 This tax is blended with self-regulatory measures in the form of climate change agreements with various industrial sectors featuring high energy users agreeing to reduce energy use and carbon dioxide emissions in exchange for a

54 e.g. a congestion charging scheme in London introduced under the Greater London Authority Act 1999, s. 295. 55 Environment Act, s. 80. 56 Directive 2008/50/EC on ambient air quality and cleaner air for Europe; Air Quality Regulations 2010, Schs. 2–5. 57 Ibid., Part 3. 58 Environment Act 1995, Part IV. 59 Case C-404/13, R(ClientEarth) v Secretary of State for Environment, Food and Rural Affairs (ECLI:EU:C:2014:2382); and R(ClientEarth) v Secretary of State for Environment, Food and Rural Affairs [2015] UKSC 28. 60 Climate Change Act 2008, Part 1, ss. 1–10. 61 Ibid., Part 2. 62 See C. Reid, ‘A New Sort of Duty? The Significance of ‘Outcome Duties’ in the Climate Change and Child Poverty Acts’ (2012) Public Law 749; McHarg, ‘Climate Change Constitutionalism?’. 63 The UK Climate Change Levy introduced under the Finance Act 2000, s. 30.

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united kingdom 361 discount on a Climate Change Levy applied to energy bills.64 Emissions from transport are addressed through specification standards and differential taxation for new vehicles and different types of fuel.65

17.3.3 Water Quality Water quality in the UK is managed under the broad umbrella of meeting obligations under European legislation—notably the EU Water Framework Directive.66 There is no overarching strategic planning document. Individual emissions standards are used for certain ‘dangerous substances’ but in general, environmental quality standards have been adopted based upon the use of the receiving waters.67 Overall responsibility for achieving these standards lies with the Secretary of State for Environment, Food and Rural Affairs, although certain duties are delegated to the Environment Agency. In practice the operational responsibilities for maintaining water quality and pollution control rest with the Agency. The Agency is obliged to consider water quality standards when setting conditions in e nvironmental permits and to monitor and vary such conditions as appropriate.68 The Permitting Regulations prohibit ‘causing or knowingly permitting any water discharge activities’ unless such activities are authorized by an environmental permit.69 A ‘water discharge activity’ includes the discharge of ‘poisonous, noxious or polluting matter’, waste matter, or trade or sewage effluent into inland freshwaters, coastal or territorial waters.70 Under previous legislation the concept of ‘polluting matter’ has been construed broadly.71 The concepts of causation and knowingly permitting have been explored extensively in the case-law, being interpreted in an increasingly purposive and broad fashion.72 This has resulted in criminal liability being established with only minimal causal connections between an activity and any resulting entry into controlled waters.73 The potential impacts of such a broad, purposive interpretation of criminal liability are somewhat mitigated through a selective approach to enforcement.74 A wide range of remedial and civil sanctions that impose clean-up requirements or seek to recover the costs of clean up following pollution incidents supplements criminal sanctions.75 64 i.e. voluntary agreements made by UK industrial sectors to reduce emissions over two-year periods in return for discounts on the Climate Change Levy, see http://www.gov.uk/guidance/climate-changeagreements. 65 Under EC Regulation No. 443/2009. 66 Directive 2000/60/EC. 67 e.g. for drinking water see the Water Supply (Water Quality) Regulations 2016. 68 Environmental Permitting (England and Wales) Regulations 2016, Sch. 21. 69 Regulation 12(1)(b). 70 Schedule 21, para. 3(1). 71 NRA v Biffa Waste Services [1996] Environmental Law Reports 227; R v Dovermoss [1995] Environmental Law Reports Env LR 258. 72 Empress Car Company (Abertillery) Ltd v NRA [1998] Environmental Law Reports 396. 73 Express Ltd (t/a Express Dairies Distribution) v Environment Agency [2003] Environmental Law Reports 29. 74 Although for major industrial operators the position has changed dramatically with the adoption of more stringent sentencing guidelines, see section 17.4.5 and R v Thames Water Utilities [2015] Environmental Law Reports Env LR 36. 75 Water Resources Act, s. 161 and the civil sanctions regime under the Regulatory Enforcement and Sanctions Act 2008 (below).

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362 stuart bell Pollution from aggregated non-point emissions sources such as from agricultural activities, transport, and urban run-off are not subject to the permitting requirements. The most serious water quality issues from diffuse sources in the UK come from high levels of nutrients and pesticides from agricultural operations. The UK has mainly adopted a zoning approach in relation to nitrate pollution from agricultural sources.76 Unlike waste management and air pollution where market-based mechanisms have been increasingly adopted, economic instruments have not been used to any great degree.77

17.3.4 Waste Management Waste management regulation in the UK has historically concentrated on the regulation of the final disposal of waste in large landfill sites. Over recent years, much greater effort has been put into a broader, mixed regulation approach. This is largely a result of European law but dwindling capacity in landfill has also been an influential factor. These initiatives appear to have been successful with a marked decline in waste production and landfill and a significant rise in recycling rates. However, the increase in the export of waste to non-EU countries suggests that displacement activities have also played a role.78 The overarching aims of waste management policy can be found in the national waste plans for the devolved countries of the UK.79 These plans provide high-level policy guidance and have no legally binding effects but do help structure discretionary decision-making at a national and local level. The central definition of ‘waste’ in UK law has been the subject of extensive litigation in the national and European courts. This litigation generally reflects the uncertainties created by underlying policy and regulatory tensions.80 The definition of waste involves a seemingly simple question as to whether a particular item has been ‘discarded’.81 Whilst this covers consignment to a waste management activity, namely disposal, recycling, and recovery, it has not always been straightforward to distinguish between the subjective and objective view of whether an item has been discarded. The courts have tended to construe the definition broadly in adopting a precautionary and restrictive approach but limited any individual decision to the specific facts of any case.82 Thus, there is yet to be a definitive test

76 Originally under the Water Resources Act 1991, s. 94 and then subsequently under the Nitrate Pollution Prevention Regulations 2015. 77 Contrast this with ongoing developments in other European countries. See T. Bocker and R. Finer, ‘European Pesticide Tax Schemes in Comparison: An analysis of Experiences and Developments’ (2016) 8 Sustainability 378; C. Rougoor et al., ‘Experiences with Fertilizer Taxes in Europe’ (2010) 44 Journal of Environmental Planning and Management 877. 78 European statistics show that the export of all notified waste from the UK rose from 36,000 tonnes in 2001 to nearly 4.2 million tonnes in 2014, see http://ec.europa.eu/eurostat/statistics-explained/index. php/Waste_shipment_statistics. 79 See the National Waste Management Plan for England available at: http://www.gov.uk/defra. 80 E. Scotford, ‘Trash or Treasure: Policy Tensions in EC Waste Regulation’ (2007) 19 Journal of Environmental Law 367. 81 Article 3(1) Directive 2008/98/EC. 82 R v W [2013] Environmental Law Reports 15.

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united kingdom 363 or set of principles laid down and the case law is ‘uncertain, contradictory, vague and very difficult to apply’.83 Waste operations including the recovery or disposal of waste fall within the general requirement for an environmental permit under the Environmental Permitting (England and Wales) Regulations 2016.84 The Environment Agency has overall responsibility for determining applications and for monitoring and reviewing permitted activities. The Agency has wide enforcement powers to vary, suspend, or revoke permits.85 Carrying out waste activities without a permit or in non-compliance with permit conditions is a criminal offence.86 In keeping with a compliance-focused enforcement policy, criminal enforcement is seen very much as a last resort.87 Control over any party in the waste chain (including individuals) is applied through a more general ‘duty of care’ underpinned by a statutory Code of Practice.88 The duty requires every party in the waste chain to take reasonable steps to ensure the safe management of waste from production to final disposal. Breach of the duty is a criminal offence.89

17.3.5 Nature Conservation and Landscape Protection In very general terms, there is a dual approach to nature conservation in the UK with laws that seek to designate key protected sites alongside provisions that prohibit any direct and indirect interference with protected species of individual animals and plants. The designation of nationally and internationally important sites relies heavily on an approach using administrative and financial mechanisms that emphasize the importance of active management of protected habitats.90 Species protection relies on extensive prohibitions under the criminal law, subject to certain exemptions via licensing systems.91 Nature conservation law and policy is administered by specialist agencies in each country of the United Kingdom.92 These agencies have responsibility for identifying and notifying protected sites and species and have powers to enforce the law, through criminal prosecution where relevant. The main statutory provisions relating to both species and habitats protection can be found in the Wildlife and Countryside Act 1981, an Act that has been updated through various amendments and supplementary secondary legislation—particularly to accommodate changes in European law.93 These changes, along with a range of international and other designations, 83 E. Lees, Interpreting Environmental Offences. The Need for Certainty (Oxford: Hart Publishing, 2013) 76; judicial comment in R(OSS Group Ltd) v Environment Agency [2007] Environmental Law Reports 8. 84 Regulations 2(1) and 12(1). 85 Regulations 36–7. 86 Regulation 38(1). 87 There were fifty-four waste prosecutions brought by the Agency in 2015, see Environment Agency, ‘Regulating the Waste Industry: 2015 evidence summary’, available at: http://www.gov.uk/government/ publications/regulating-the-waste-industry-2015-evidence-summary. 88 Environmental Protection Act 1990, s. 34 and Waste Duty of Care: Code of Practice, available at: http://www.gov.uk/government/publications/waste-duty-of-care-code-of-practice. 89 Environmental Protection Act 1990, s. 34(6). 90 Wildlife and Countryside Act 1981, Part II. 91 Ibid., Part I. 92 Natural England, Natural Resources Wales, Scottish Natural Heritage, and the Northern Ireland Environment Agency. 93 e.g. under the Countryside and Rights of Way Act 2000 and Natural Environment and Rural Communities Act 2006.

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364 stuart bell have created a patchwork of protected sites and landscape areas under national and European law with complex, often overlapping systems of regulation.94 The two most significant national designations are the National Nature Reserve (NNR) and the Site of Special Scientific Interest (SSSI), with the former largely being managed by the nature conservation bodies and the latter being within private ownership with certain limits on operations and activities that may be undertaken on the land.95 These designations overlap with international and European designations including Special Protection Areas and Special Areas of Conservation.96 They are selected on scientific grounds using criteria determined by the Joint Nature Conservation Committee (JNCC) which is the main statutory advisor to the UK government and devolved administrations.97 European sites have overarching legislative objectives in terms of maintaining or restoring important habitat types and habitats of species to a favourable status. This requires stability of a species’ or habitat’s range over the long term.98 These objectives are considered in the context of the assessment of any potential operations or development that might impact on European sites. The distinction between national sites and European sites is also material when considering procedures for consenting activities and/or development on such sites. For national sites, owners and occupiers must apply for consent before undertaking any operations listed in the original notification of designation. Where consent is refused, the operations cannot go ahead.99 For European sites, there is a more complicated process requiring an ‘appropriate assessment’ of the impact on the conservation objectives from a proposed plan or project including any proposed mitigation or compensation measures.100 In this context the term ‘plan or project’ includes broader strategic plans as well as individual development proposals that could impact on the integrity of a European site.101

17.4 Implementation Framework It will come as no surprise that the structure of the administration of environmental law in the UK is complex and lacks general coherence. Responsibilities for environmental matters are spread widely across a diverse range of administrative bodies. Moreover, devolution has added further parallel layers of administration with increasingly distinctive and sophisticated governance arrangements at the national level in the countries of a devolved United Kingdom.102 As a consequence it is difficult to identify an underlying rationale for how and why the current 94 The statutory advisor to the UK Government, the Joint Nature Conservation Committee (JNCC) list over thirty designations at http://jncc.defra.gov.uk/page-1527. 95 This focus on managerial responsibility is the key distinction between these two designation because in practice all NNRs are designated as SSSIs. 96 Under the Directive 2009/147/EC (Wild Birds) and Directive 92/43/EEC (Habitats) respectively. 97 Available at http://jncc.defra.gov.uk. 98 Ibid. 99 Wildlife and Countryside Act 1981, s. 28E(3). 100 Conservation of Habitats and Species Regulations 2010, reg. 61. 101 See Case C-6/04 Commission v United Kingdom [2005] ECR I-9017. 102 e.g. whilst the national environmental enforcement agencies in England, Wales, and Scotland have common areas of responsibility (e.g. in relation to pollution control functions) they also differ significantly in terms of the breadth of areas covered and individual governance arrangements.

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united kingdom 365 structural arrangements have emerged, other than as pragmatic and incremental response to different political priorities at different stages in the evolution of e nvironmental law.

17.4.1 Central Government In central government responsibility for environmental law, policy, and decision-making has always been spread across different departments.103 At the time of writing, responsibility for the core of environmental law and policy in the Westminster Parliament is led by the Department for Environment, Food and Rural Affairs (Defra). Other environmental responsibilities are divided amongst a range of departments including the Ministry of Housing, Communities & Local Government;104 the Department of Business, Energy and Industrial Strategy;105 the Department of Transport; the Treasury;106 and the Ministry of Justice.107 The diffusion of policy across different departments raises the challenge of coordinated responses to environmental problems. In 1970, the creation of an integrated Department of the Environment108 was driven by a desire to achieve ‘better policy coordination through the departmental integration of closely related functional responsibilities’.109 A pattern of ‘tinkering’ with different policy areas in a cycle of integration and separation has followed since that time depending upon different elected governments’ views of the priority of environmental protection. This ‘tinkering’ with central responsibilities can have a symbolic significance. An example of this symbolism can be seen in the evolution of responsibility for climate change within UK central government. In 2008, the creation of the Department of Energy and Climate Change (DECC) through the merger of the relevant sections of the environment and business departments was widely seen as a symbol of the prioritization of two key policy areas. Eight years later and following extended criticism of whether a separate department was efficient or necessary,110 DECC was unceremoniously abolished and climate change policy now sits within the Department of Business, Energy and Industrial Strategy. Whether this represents a reduction of the national commitment to being a global leader on climate change or further integration within a large, more influential government department is debatable.

103 e.g. pollution control responsibilities for the Alkali Act and successors were moved between the Board of Trade, the Local Government Board, the Ministry of Health, the Ministry of Housing and Local Government, and finally the Department of the Environment on its creation in 1970. 104 With responsibility for town and country planning. 105 Energy and climate change. 106 Environmental taxation such as the Landfill Tax and Climate Change Levy. 107 Access to justice matters. 108 Claimed to be the ‘World’s first such Governmental department’ see D. Russel and A. Jordan, ‘Environmental Policy Integration in the UK’ in A. Goria, A. Sgobbi, and I. von Homeyer (eds.), Governance for the Environment: A Comparative Analysis of Environmental Policy Integration (Cheltenham: Edward Elgar, 2010), 158. 109 M. Painter, ‘Policy Co-ordination in the Department of the Environment, 1970–1976’ (1980) 58(2) Public Administration 135. 110 Evidence of this can be seen in an unsuccessful Private Members Bill to abolish DECC, see the Department of Energy and Climate Change (Abolition) Bill 2015–16.

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366 stuart bell Central control is normally exercised by government departments through a combination of new legislation, policy variation, and individual decision-making. Environmental laws are often framed in such a way as to provide for wide powers to be delegated to the Secretary of State to exercise legislative or quasi-legislative functions. For example, the Secretary of State for the Environment, Food and Rural Affairs has general powers to issue ‘directions of a specific or general character’ to the Environment Agency in exercising any of its functions.111 Although laws provide the framework for power, they have little to say about how such powers should be exercised. Hence, the role of policy is paramount here. The practical application of policy is seen through a centralized power to determine appeals against certain decisions.112 Accountability for the effectiveness of environmental law and policy is maintained through scrutiny by several cross-party Parliamentary Select Committees and the House of Commons Environmental Audit Committee.113 These Committees undertake regular inquiries into different environmental policy areas. In doing do they invite evidence from external witnesses (including academics, practitioners, and non-governmental organizations (NGOs)) as part of a process of scrutinizing the effectiveness of law, policy, and practical implementation. The recommendations of these Select Committees are influential when the government is considering changes to law and policy.

17.4.2 Local Government In keeping with a long history of devolving certain decisions to the local level, several operational aspects of environmental law and policy are decentralized to local authorities. The most significant of these is the role of the local planning authority with responsibility for strategic plan-making and individual development control decisions. Local authorities also have responsibilities for other environmental functions such as air quality management, waste collection and recycling, statutory nuisances, and identifying and cleaning up contaminated sites.

17.4.3 Specialist Agencies In keeping with a fragmented approach to environmental regulation, specialist public agencies are generally divided functionally and geographically in each of the constituent countries of the UK.114 In England and Scotland there are two main regulators dealing with pollution control, namely the Environment Agency (EA) and the Scottish Environment Protection 111 Environment Act 1995, s. 40. 112 In the planning system, appeals are heard by the Planning Inspectorate on behalf of the Secretary of State, ensuring that central policy guidance is overseen. 113 http://www.parliament.uk/business/committees/committees-a-z/commons-select/environmentfood-and-rural-affairs-committee/ and www.parliament.uk/business/committees/committees-a-z/ commons-select/environmental-audit-committee/. 114 A broad description fails to capture the degree to which there are exceptions and anomalies. e.g. the Drinking Water Inspectorate has responsibility for drinking water quality in England and Wales and private water companies have regulatory responsibility for trade effluent discharges to sewers.

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united kingdom 367 Agency respectively. Nature conservation functions are undertaken by Natural England and Scottish Natural Heritage. Wales (Natural Resources Wales) and Northern Ireland (Northern Ireland Environment Agency) have a single integrated regulator with overall responsibility for both pollution control and nature conservation along with other associated activities (e.g. marine licensing and fisheries). The major distinction here is that NRW is an independent public body whilst NIEA is an executive agency within the Department of Agriculture, Environment and Rural Affairs.115 This diversity of responsibilities reflects the influence of history and the fragmenting effect of devolution. For example, in England, the EA and Natural England represent the latest iterations of a long sequence of mergers of smaller, more specialized agencies with different areas of responsibilities and cultures. The EA has overall responsibility for a wide range of functions including pollution control regulation, water resources, flood management, and fisheries and is subject to a wide range of duties, aims, and objectives, with the principal aim of ‘attaining the objective of achieving sustainable development’.116 Perhaps as a consequence of the breadth of functions of the Agency and the diffuse nature of these aims and objectives, it suffers from the criticism that it lacks a distinctive regulatory identity.117 In other words it is often difficult to differentiate between the EA’s role in policing compliance from its role in advising polluters or its role as a potential champion of the unowned environment. Although the Agency is independent of government it does not pursue a distinctively individual or aggressive policy agenda.

17.4.4 The Role of Courts and Tribunals Courts and tribunals fulfil a number of different but complementary roles in adjudicating environmental disputes. The usual caveat applies here, namely that in a multi-jurisdictional United Kingdom there are structural differences in the court systems. Starting at the lowest level, there are specialist administrative tribunals that determine decisions on miscellaneous land use planning and environmental appeals. These decisions are heavily influenced by the application of central and local policies. Moreover although such decisions can involve the consideration and application of legal principles, they carry no legal significance and are subject to review in a specialist Chamber of the civil High Court.118 In comparison to civil law countries, therefore, the lack of a specialized administrative court system is notable. At the next level, powers to determine criminal liability and sentencing for offences under environmental law rest mainly with the Magistrates’ Court and the Crown

115 Leading to criticisms about legitimacy and accountability, see Turner, ‘Laying the Foundations for a Sustainable Northern Ireland’. 116 Environment Act 1995, s. 4(1); other duties and objectives can be found in ss. 5–9. 117 D. Bell and T. Gray, ‘The Ambiguous Role of the Environment Agency in England and Wales’ (2002) 11(3) Environmental Politics 76. 118 The Planning Inspectorate decides a wide range of environmental appeals including appeals against refusals of planning permission under the Town and Country Planning Act 1990; under the Environmental Permitting Regulations 2016; under the Environmental Damage (Prevention and Remediation) England Regulations 2015; and against refusals of Hazardous Substances consent under the Planning (Hazardous Substances) Act 1990.

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368 stuart bell Court.119 Civil courts also determine private law claims with environmental dimensions (e.g. nuisance) and fulfil an appellate function for statutory rights of appeal.120 In terms of their influence on environmental jurisprudence, however, these courts play a subsidiary role when compared to the High Court’s jurisdiction over the judicial review of administrative powers and duties found in environmental legislation.121 The role of the courts in this context tends to be supervisory and not necessarily adjudicatory of the substantive merits of decisions. There is deference to technical fact-finding and the interpretation and application of policy when exercising administrative discretion by specialist regulators.122 There is also an emphasis on due process and general administrative principles of substantive illegality as opposed to say the ‘correct’ application of environmental principles or of any notions of environmental justice in its own right.

17.4.4.1 Access to Justice The term ‘access to justice’ in the context of environmental matters is generally used when considering the adequacy and availability of public law remedies for private individuals and representative groups (e.g. NGOs). Unlike other European countries, there is no significant link between individuals or representative groups and the enforcement of civil or criminal environmental law.123 The extent to which courts and judicial review play a sufficient or normative role in UK environmental law has been the subject of lengthy debate.124 In that debate, two main themes dominate. The first is procedural, namely whether judicial review provides adequate access to justice for claimants challenging environmental decisions. This involves questions of the adequacy of the implementation of obligations under the Aarhus Convention and European law and the extent to which there are p rocedural hurdles to bringing environmental claims.125 The most significant of these hurdles are whether a claimant has a ‘sufficient interest’ to bring a claim; whether the time limits for bringing a claim are unduly restrictive; and whether the procedural rules on paying the costs of litigation are unduly punitive for individual parties. The second theme is institutional and structural, namely the extent to which any inherent limitations of the 119 With the severity of the offence and level of available sanctions determining which layer considers which offences. 120 e.g. appeals against abatement notices can be heard at the Magistrates Court under the statutory nuisance provisions in Part II of the Environmental Protection Act 1990, s. 79. 121 This includes both general powers of judicial review and statutory rights of appeal against decisions on questions of law e.g. Town and Country Planning Act 1990, s. 288 provides for challenges against planning decisions. 122 e.g. in relation to nature conservation site designation see R (Western Power Distribution Investments Ltd) v Countryside Council for Wales [2007] Environmental Law Reports 25; Fisher v English Nature [2005] Environmental Law Reports 10. 123 N. Sadeleer, G. Roller, and M. Dross, Access to Justice in Environmental Matters ENV.A.3/ ETU/2002/0030 11. 124 P. McAuslan, ‘The Role of Courts and other Judicial Type Bodies in Environmental Management’ (1991) 3(2) Journal of Environmental Law 195; H. Woolf, ‘Are the Judiciary Environmentally Myopic’ (1992) 4(1) Journal of Environmental Law 1. 125 UN/ECE Convention on access to information, public participation in decision-making and access to justice in environmental matters (Aarhus Convention). The EU position is complex with no general Directive on access to justice (see COM/2003/0624) but individual provisions in specific Directives e.g. Art. 25 Directive 2010/75/EU on Industrial Emissions (IPPC).

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united kingdom 369 current role of the courts could be addressed through the introduction of a specialist environmental court.

17.4.4.2 The Requirement of a ‘Sufficient Interest’ There is a relatively liberal approach taken in relation to who can bring an e nvironmental judicial review claim.126 In general a claimant must demonstrate that they have a ‘sufficient interest’ in the subject of the proceedings.127 Historically, this concept was narrowly construed.128 This meant that representative challenges to decisions affecting the unowned environment by NGOs or individuals would not necessarily meet the requirement of ‘sufficient interest’.129 In a series of decisions liberalizing this requirement in public interest litigation, the courts shifted away from a rights-focused to an interests-focused approach. It was recognized that representative challenges to environmental decisions invariably involved breaches of public law and the importance of the public interest in such decisions meant that any individual member of the representative group would have a ‘sufficient interest’ regardless of whether any private right existed.130

17.4.4.3 Time Limits The second barrier to access to justice is the requirement to bring a claim for judicial review within certain time limits and in some cases to do so ‘promptly’ even within the specified time limit.131 The specific time limit for general environmental judicial review claims is three months from the date on which the grounds for bringing the claim first arose.132 In challenges to planning decisions there is a strict six-week time limit.133 The requirement for claimants to act ‘promptly’ even within the general three month time limit was criticized as being vague and uncertain by the Aarhus Convention’s Compliance Committee.134 Subsequently, it was found to be in contravention of the legal principles of certainty and effectiveness by the European Court with a corresponding interpretation 126 There was a period when the rules on standing were interpreted in an ‘unduly restrictive’ fashion in Scotland but the Supreme Court took the opportunity to regularize the position in AXA General Insurance v Lord Advocate [2011] UKSC 46, applied in the context of an environmental case in Walton v Scottish Ministers [2013] Environmental Law Reports 16 and then incorporated into formal procedure under the Court of Session Act 1988, s. 27B(2). 127 Senior Courts Act 1981, s. 31(3), Judicature (Northern Ireland) Act 1978, s. 18(4), and Court of Session Act 1988, s. 27B(2)(a). 128 R v Secretary of State for the Environment, ex parte Rose Theatre Trust [1990] 1 QB 504 in which a newly formed group sought to protect a Shakespearean theatre. 129 C. Hilson and I. Cram, ‘Judicial Review and Environmental Law—Is There a Coherent View of Standing?’ (1996) Legal Studies 1. 130 These decisions have the effect of excluding only a ‘mere busybody interfering in something with which (s)he has no legitimate concern’: Walton v Scottish Ministers. 131 Senior Courts Act 1981, s. 31(6) and the Civil Procedure Rules (CPR), r. 54.5. 132 R v Hammersmith London Borough Council, ex parte Burkett [2003] Environmental Law Reports 6, in which the House of Lords held that in planning cases, the trigger date was the grant of the permission that was the subject of the challenge. 133 This is the case under both the statutory appeal route and where a planning permission is challenged by way of general judicial review: CPR 54.5(5) and Town and Country Planning Act 1990, s. 288(3). 134 Communication ACCC/C2008/33, available at: http://unece.org/env/pp/compliance/ Compliancecommittee/33TableUK.html.

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370 stuart bell latterly in domestic cases.135 This has the effect of ensuring that in cases involving European law, there is no requirement to act ‘promptly’ although there remains a residual requirement for ‘promptness’ for those aspects of a case that feature national rather than European law.136

17.4.4.4 Costs and Funding The third and potentially the most significant barrier to access to justice is the extent to which the cost of public interest litigation in environmental matters complies with the requirement of the Aarhus Convention that access to justice should not be ‘prohibitively expensive’.137 The general presumption is that the loser in any civil or administrative action will pay both their own and the winner’s costs unless there is a specific procedural rule or order by the judge that rebuts that presumption. Litigation is expensive and in true public interest cases, the risk of a liability for costs acts as a significant disincentive to potential claimants.138 The Criminal Justice and Courts Act 2015 introduced amendments that impose a presumptive costs limit of £5,000 per individual claimant or £10,000 for groups or companies in ‘Aarhus Convention Claims’.139 These fixed limits are not automatically applied to every Aarhus claim. There is power in the Rules to vary the limit on the costs if it would comply with the requirement to not make the proceedings ‘prohibitively expensive’.140 These rules go some way towards implementing the Aarhus requirements and European law on costs in environmental cases. These changes were introduced after criticisms by the European Court that the previous rules were not ‘sufficiently precise and clear enough’ to ensure that proceedings were not ‘prohibitively expensive’.141 Arguably, the rules are still not fully Aarhus compliant as statutory planning appeals are not covered by either the fixed costs rules or the new ability for a court to make Costs Capping Orders in general judicial review claims (i.e. non Aarhus Convention Claims).142 This anomaly has been criticized by the Court of Appeal and the Aarhus Convention’s Compliance Committee,143 but as the Convention is not directly effective in the UK courts, the government appears to have a discretion over manner in which the obligations are implemented.

135 Case C-406/08 Uniplex (UK) Ltd v NHS Business Services Authority. 136 R (Buglife) v Medway Council [2011] Environmental Law Reports 27; also R (Berky) v Newport City Council [2012] Environmental Law Reports 35 in which the requirement for promptness applied to grounds of challenge brought in relation to alleged bias and irrationality. 137 Article 9 Aarhus Convention, that requires access to environmental justice procedures that are adequate and effective and not prohibitively expensive. 138 The same is also true in private interest cases where there is an overlapping public interest e.g. private nuisances, although the financial incentive to bring such cases may be slightly different. 139 CPR, rr. 41–45 for ‘Aarhus Convention Claims’. A defendant’s costs in an Aarhus claim are limited to £35,000. There are slightly broader principles to limit costs in the case of statutory appeals to the High Court including claims brought against planning decisions under the Town and Country Planning Act 1990, s. 288; see CPR, rr. 52.19 and 52.19A. 140 i.e. exceed the claimant’s financial resources or be objectively unreasonable taking into account the circumstances of the claim (e.g. prospect of success, complexity, and the importance of the issues). 141 Case C-530/11 European Commission v UK [2014] Environmental Law Reports D2. 142 Criminal Justice and Courts Act 2015, ss. 88–90 and CPR, r. 46.17 in the case of general judicial review. 143 Secretary of State for Communities and Local Government v Venn [2015] Environmental Law Reports 14; UNECE, Decision V/9n on compliance by the UK.

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united kingdom 371

17.4.4.5 A Specialist Environmental Court There has been a long history of calls for a specialist court in England to deal solely with environmental matters.144 When a separate environmental court (of sorts) was finally created in 2010, the model adopted was hardly revolutionary. The Environment section of the General Regulatory Chamber of the First-Tier Tribunal was created originally to adjudicate on the civil sanctions regime.145 The type of claims heard in the tribunal are some way away from the original vision of a specialist environmental court as a ‘one-stop shop’. The volume of appeals has not been significant and an opportunity to transfer the high volume of planning cases to the Court was rejected on costs grounds.146 Certainly, as long as the remit of the tribunal remains narrow, it is unlikely to have any material impact on domestic environmental law.

17.4.5 Enforcement In keeping with its historical roots, the enforcement of UK environmental law remains firmly based on a discretionary, compliance model whereby regulatory agencies tend to seek to ‘engage with business to educate and enable compliance’ rather than sanctioning non-compliance in a rigid and legalistic fashion.147 Thus, in cases where there are ongoing relationships between a regulator and regulated parties, there will often be a cooperative approach to non-compliance where negotiation and persuasion are used in preference to more formal action. The discretionary element of enforcing environmental law is emphasized by the availability of a wide range of civil (i.e. non-criminal) sanctions under the Regulatory Enforcement and Sanctions Act 2008.148 This legislation provides the Environment Agency149 with flexible tools to deal with environmental offenders without having to bring a formal prosecution. In contrast to this informal, flexible, negotiated style of compliance and the use of civil sanctions, the substance of environmental law makes widespread use of no fault or strict liability for criminal offences.150 This is in keeping with the approach to criminal liability for other regulatory offences which have traditionally not been viewed in the same context as traditional crimes.151 The potential unfairness of the strictness of criminal liability for 144 P. McAuslan, ‘The Role of Courts and other Judicial Type Bodies in Environmental Management’ (1991) 3(2) Journal of Environmental Law 195; H. Woolf, ‘Are the Judiciary Environmentally Myopic’ (1992) 4(1) Journal of Environmental Law 1. 145 Regulatory and Enforcement Sanctions Act 2008, Part III. The First-Tier Tribunal was created in the reorganization of the administrative tribunals system in the Tribunals, Courts and Enforcement Act 2007. 146 Defra, Environmental Permitting—Consultation on Draft Environmental Permitting (England and Wales)(Amendment) Regulations 2013—a package of measures. 147 Environment Agency, ‘Enforcement and Sanctions Statement’ (2014) 4. 148 In England and Wales, the details are found in secondary legislation, see the Environmental Civil Sanctions (England) Order 2010 and the Environmental Civil Sanctions (Wales) Order 2010. The position is slightly different in Scotland under the Regulatory Reform (Scotland) Act 2014, Part 3. 149 With SEPA and Natural Resources Wales having similar powers. 150 The Law Commission, Criminal Liability in Regulatory Contexts: A Consultation Paper, Consultation paper, No. 195, available at: http://www.%20lawcom.gov.uk/project/criminal-%20liability%20in-%20regulatory-%20contexts/. 151 Ibid.

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372 stuart bell environmental offences is balanced out by the availability of civil sanctions, statutory defences that emphasize certain mitigating factors (e.g. due diligence to avoid the commission of an offence), and the scale of penalties that may be imposed by the courts to reflect the degree of blame or harm caused.152 Until relatively recently, the modest limits for fines in the lowest tier of the criminal courts (where many environmental offences are tried) combined with the moral ambiguity associated with the regulatory nature of environmental offences was reflected in relatively low sanctions, particularly fines for corporate offenders. Following sustained criticisms of the lack of a sufficient sanctioning and deterrent effect, sentencing guidelines have been produced that provide for a process in which fines are set by reference to variable factors including the size and culpability of a corporate offender along with the significance of the environmental harm caused. The guidelines have been endorsed in the Court of Appeal. In particular, the Court noted that in serious cases involving ‘very large organisations’, it would not be unreasonable to punish with a fine of up to 100 per cent of that company’s annual pre-tax profit.153 The practical impact of these guidelines have been seen in one example from the water industry. From 2005–13, Thames Water was the most heavily fined water company in the UK with overall fines totalling £842,500 from eighty-seven pollution incidents.154 In 2017, it was fined for £20.3 million for a series of pollution incidents at sewage treatment works.155

17.5 Conclusion: Fragmentation and Integration? UK Environmental Law in Flux The development of the UK model of environmental law is a story of incremental and pragmatic change. The current state of UK environmental law reflects a combination of historical influences on regulatory culture, the dominance of the approximation of European law, and the emergence of distinctive national legal identities within the countries of the UK. This cycle of fragmentation and integration continues with the UK’s decision to leave the EU. The contingent nature of Brexit negotiations and the UK’s place within Europe but outside the EU leaves the question of possible future directions for UK environmental law very much open. On a basic level, the reductionist thoroughness of ‘copy out’ and referential techniques to transpose Directives means that European law will continue to play an influential role in the UK for some time after leaving the EU. Many key concepts in UK environmental law have only previously been interpreted through a European lens. Simplistic revisionism cannot deny the evolution of many domestic environmental laws through the European law making process and subsequent interpretations by the European courts. In this sense, the questions 152 Ibid. 153 R v Thames Water Utilities [2015] Environmental Law Reports 36. 154 ‘Revealed: how UK water companies are polluting Britain’s rivers and beaches’, the Guardian, 3 August 2013. 155 ‘Thames Water hit with record £20m fine for huge sewage leaks’, the Guardian, 22 March 2017.

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united kingdom 373 about leaving the EU are not just about which laws still apply, they are also about how we make sense of domestic laws which have that in-built European context. Moreover, membership of the EU has provided the stability for the UK to devolve environmental law-making powers in a way which encourages distinctive national approaches within the UK whilst maintaining a degree of substantive coherence. The absence of the constraining effect of European obligations may encourage further fragmentation in the countries of the UK. Certainly, there is evidence of greater clarity in the distinctiveness of environmental governance in Scotland and Wales that suggests that regulatory style may diverge notwithstanding similar substantive laws. Whether this type of structural fragmentation will help to address the issues of the complexity, incoherence, and lack of integration of environmental law in the UK as a single nation is quite a different matter.

17.6 Selected Bibliography Bell, S., D. McGillivray, O. Pederson, E. Lees, and E. Stokes, Environmental Law (Oxford: Oxford University Publishing, 9th edn. 2017). Bishop, P. and M. Stallworthy, Environmental Law and Policy in Wales: Responding to Local and Global Challenges (Cardiff: University of Wales Press, 2013). Fisher, E., B. Lange, and E. Scotford, Environmental Law: Text, Cases and Materials (Oxford: Oxford University Press, 2013). Fisher, E., Environmental Law: A Very Short Introduction (Oxford: Oxford University Press, 2017). Lobban, M., ‘Tort Law, Regulation and River Pollution: the Rivers Pollution Prevention Act and its Implementation’ in J. Steele and T. T. Arvind (eds.), Tort Law and the Legislature (Oxford: Hart Publishing, 2012). Macrory, R., Regulation, Enforcement and Governance in Environmental Law (Oxford: Hart Publishing, 2nd edn. 2014). McManus, F., Environmental Law in Scotland: An Introduction and Guide (Edinburgh: Edinburgh University Press, 2016). Morrow, K. and S. Turner, ‘The More Things Change, the More They Stay the Same? Environmental Law, Policy and Funding in Northern Ireland’ (1998) 10(1) Journal of Environmental Law 41. United Kingdom Environmental Law Association, The State of Environmental Law 2011–2012, available at: http://www.ukela.org/Aim5. Waite, A., Environmental Law Handbook (Vols. 1 and 2) (London: Bloomsbury Professional, 4th edn. 2013).

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chapter 18

U n ited States of A m er ica James Salzman

18.1 Overview

375

18.2 Allocation of Powers

375

18.3 Structure and Substance of Environmental Law

378

18.4 Implementation Framework

387

18.2.1 Introduction 18.2.2 Constitutional Bases of Environmental Law 18.2.3 Delegation to Regulatory Agencies 18.2.4 Regulation and Private Property

375 376 376 377

18.3.1 Clean Air Act 378 18.3.1.1 Setting National Ambient Air Quality Standards (NAAQS)378 18.3.1.2 Implementation Through State Implementation Plans (SIPs) 378 18.3.1.3 Regulatory Experimentation 380 18.3.2 Clean Water Act 380 18.3.2.1 Point Source Regulation 381 18.3.2.2 Nonpoint Source Pollution 382 18.3.3 Resource Conservation and Recovery Act 382 18.3.3.1 Solid Waste and Solid Hazardous Waste 382 18.3.3.2 Generators, Transporters, and Tsds 383 18.3.4 Comprehensive Environmental Response, Compensation and Liability Act 384 18.3.4.1 The Operation of CERCLA 384 18.3.4.2 Liability for the Costs of Response Actions 385 18.3.5 National Environmental Policy Act 386 18.3.5.1 A Procedural Statute 386 18.4.1 Agency Authorities 18.4.1.1 Agency Rule-making 18.4.1.2 Challenges to Agency Rule-making and Standards of review

387 388 388

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united states of america 375 18.4.2 Enforcement 18.4.2.1 Administrative Enforcement 18.4.2.2 Civil Remedies: Penalties and Injunctions 18.4.2.3 Criminal Sanctions 18.4.3 Citizen Suits 18.4.3.1 Types of Citizen Suits 18.4.3.2 Alternative to Government Action 18.4.3.3 Litigation Costs and Standing

389 389 390 391 391 392 392 393

18.5 Conclusion

393

18.6 Selected Bibliography

394

18.1 Overview The approach to environmental law in the United States is a system striving for balance: balance in terms of the allocation of powers between federal and state legislatures; between the rights of individuals as expressed in the Constitution, and the need to limit those rights to ensure effective environmental protection; and between a desire to ensure the smooth and effective running of administrative agencies and the conflicting priorities and needs which rest upon the shoulders of such agencies. This chapter will explore this balance by first examining the allocation of powers, before looking at the structure and substance of environmental law in the United States. It will then examine the implementation framework which affects how these rules operate in practice.

18.2 Allocation of Powers 18.2.1 Introduction The United States has a federal system of government with three branches. The executive branch (headed by the president) ensures the laws are implemented. The legislative branch passes statutes and appropriations. The judicial branch rules on challenges to laws and government action. This same structure is replicated at the state level. The US Constitution dictates the relationships among these three branches as well as the relative powers between the federal and state governments. The Constitution provides for enumerated powers—authority not provided for in the Constitution is reserved to the states. That said, the Constitution provides broad grants of power and the Supremacy Clause of the Constitution gives Congress the power to preempt state environmental regulations when they conflict. Congress has largely eschewed its power to preempt more restrictive state regulations, generally leaving states free to go beyond the environmental standards set by the federal government.

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18.2.2 Constitutional Bases of Environmental Law In passing environmental laws, Congress has relied primarily on its Commerce Power under the US Constitution. For years, courts permitted Congress to use this power to regulate virtually any activity that had a relationship to interstate commerce. In a series of recent non-environmental cases, however, the Supreme Court has suggested that there are limits to Congress’ authority, raising new questions about the constitutionality of some federal environmental laws. Of greatest importance is United States v Lopez.1 According to the Lopez Court, Congress can use its commerce power to regulate only activities that substantially affect interstate commerce. Congress cannot regulate an activity merely because it has some impact on interstate commerce, however remote. In the Court’s view, for example, carrying a gun near a school does not substantially affect interstate commerce and therefore is not a legitimate subject of federal regulation. Even under Lopez, the Commerce Clause provides Congress with very broad authority over the environment. Virtually all of Congress’ efforts to regulate pollution or hazardous substances would seem constitutional. The traditional pollution statutes, such as the Clean Air Act and Clean Water Act, regulate commercial activities or products, such as automobiles, that again are sold in interstate commerce. Other Congressional powers also may support particular environmental legislation. For example, the Property Clause, which gives Congress the ‘Power to dispose of and make all needful Rules and Regulations respecting . . . Property belonging to the United States’, justifies laws designed to protect the environment on federal lands, even when the laws regulate activities on nearby private property. Congress also may be able to use its spending power both to pay for environmental amenities and, by refusing to grant federal funds to states or private entities that fail to adopt various environmental measures, encourage states or private entities to adopt policies that they otherwise might not. Congress, for example, requires states to meet specified ambient air standards if they wish to receive federal highway funds.

18.2.3 Delegation to Regulatory Agencies Expert administrative agencies like the federal Environmental Protection Agency (EPA) are critical to modern environmental regulation. Congress does not have the expertise, time, or resources to work out all the details of environmental regulation. Even if Congress could establish all the details of a regulatory regime at one point in time, new scientific, economic, and social information would require Congress constantly to revise the details. As a result, federal environmental laws generally take the form of framework statutes, setting out goals and processes to guide EPA and other agencies as they determine these regulatory details on an evolving basis as new knowledge and challenges emerge. Strictly speaking, Congress is delegating its authority to EPA and other federal agencies. Consider, for example, the 1 514 U.S. 549 (1995).

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united states of america 377 Clean Air Act’s mandate that EPA set ambient air quality standards at a level ‘requisite to protect the human health’ and allowing for ‘an adequate margin of safety’. At first glance, this Congressional directive might seem relatively specific. But any effort to apply this directive to a particular pollutant raises scores of policy questions. Where even a slight level of pollution would injure a small population of sensitive people, should EPA set a zero standard, or can EPA focus on the average member of the population? As an agency’s discretion increases, the agency inevitably ends up making even broader policy decisions. During the New Deal era of the 1930s, the Supreme Court invalidated a number of statutes for unconstitutionally delegating legislative authority to an administrative agency but the Court has not since used the unconstitutional delegation doctrine to invalidate Congressional legislation. In contrast to the federal courts, approximately a third of the state judiciaries still carefully police legislative delegations under their own constitutions. These courts typically require the state legislature to provide ‘adequate standards’ or an ‘intelligible principle’ to constrain an agency’s decisions.

18.2.4 Regulation and Private Property The just compensation provisions of the US Constitution, which prohibit the federal and state governments from ‘taking’ private property without the payment of just compensation, also constrain environmental regulation. The US Supreme Court has held for over a century that regulations may constitute takings for which compensation must be paid. The difficulty lies in determining when a regulation goes too far and becomes a taking. Many of the principal cases addressing this issue have involved environmental regulations. Environmentalists fear that Congress might hesitate to protect the environment if the government has to pay every property owner who claims that his or her land will decline in value as a result. At the same time, if the government does not have to pay compensation, it may conclude that its regulations are costless, even where they significantly reduce property value. Given these complexities, it should not be surprising that the Supreme Court has had trouble devising an easy test for when a regulation constitutes a taking and requires compensation. In Penn Central Transportation Co. v New York City,2 the Court concluded that regulatory takings cases should be analysed on an ad hoc, fact-specific basis in which courts balance (1) the extent of interference with ‘distinct investment-backed expectations’, (2) the nature of the interference, and (3) the purposes of the governmental regulation. Over a quarter of a century of experience with the Penn Central balancing standard has, however, led to few regulations being overturned. The Supreme Court has announced two ‘categorical takings tests’ to supplement the Penn Central balancing standard. Regulations that permit members of the public onto someone’s property or that otherwise authorize a permanent physical occupation of the property are takings for which compensation must be paid. In Lucas v South Carolina Coastal Council,3 the Court held that a regulation constitutes a taking if it deprives a landowner of all the economically viable use of her property.

2 438 U.S. 104 (1978).

3 505 U.S. 1003 (1992).

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18.3 Structure and Substance of Environmental Law 18.3.1 Clean Air Act The Clean Air Act of 1970 (CAA) was the first modern pollution control law, mandating uniform, strict air quality levels nationwide. The keystone of the CAA is its treatment of the most common pollutants of concern in the outside air, and most of the CAA’s provisions are driven by its regulation of these so-called criteria pollutants. Defined as pollutants that are emitted from numerous or diverse sources and that can endanger public health or welfare, criteria pollutants include O3, NOx, CO, fine particles, SO2, as well as lead. The CAA requires that these pollutants not exceed uniform levels at any outside point to which the public has access.

18.3.1.1 Setting National Ambient Air Quality Standards (NAAQS) These NAAQS are set for each criteria pollutant at a level that must ‘protect the public health’ with an ‘adequate margin of safety’.4 But what constitutes an adequate margin of safety and whose health is the public health? These questions were addressed in the case, Lead Industries Association v EPA.5 Here, in setting the NAAQS for lead, EPA chose a very vulnerable target population—young children. The Court held that EPA had discretion in determining an adequate margin of safety. The NAAQS levels must be based solely on health considerations— the agency may not consider economic or technical feasibility. The uniform application of NAAQS to all regions of the nation and EPA’s inability to consider their costs and benefits provides a classic example of inflexible but easily administered standards. Such ‘one-size-fits-all’ standards make it easier for an agency to establish, monitor, and enforce than the more flexible and tailored local standards that vary from place to place. Local standards are also, one would expect, more susceptible to local political pressure than national standards. Another major reason for the uniform NAAQS approach is that it stifles potential interstate competition for industry. A driving force behind the CAA was the historic failure of state programmes to control air quality and the consequent fear that, absent national standards, states might be willing to sacrifice air quality for economic growth. In other words, because there existed no national clean air requirements prior to the CAA, each state was free to set standards as it wished. This made it potentially easy for states to become ‘pollution havens’. National standards prevent this.

18.3.1.2 Implementation Through State Implementation Plans (SIPs) In practice, the inflexible and uniform approach of the NAAQS has been tempered in implementation. EPA sets ambient air quality standards nationwide, and each state then has 4 These are known as ‘primary air quality standards’. As noted below, ‘secondary air quality standards’ must be set at levels that protect property and the environment. 5 Lead Industries Association v EPA, 647 F.2d 1130 (D.C.Cir.1980), cert. denied, 449 U.S. 1042 (1980).

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united states of america 379 the responsibility of setting emission standards that will result in attainment and maintenance of those standards. Each state is required to submit a State Implementation Plan (SIP) that demonstrates how the NAAQS will be achieved. In principle, the SIP should satisfy the NAAQS while taking into account local conditions, thus allowing a degree of flexible, sitespecific standards. In fact, the opportunity for local adaptation is even greater because there are well over 200 areas in which NAAQS are measured, known as air quality control regions. In simple terms, a state creating a SIP must first inventory the current emissions from sources within a region, choose control strategies for reductions, and then demonstrate through computer modelling that the SIP will satisfy the NAAQS levels. On its face, this is a broad grant of authority, giving the states a great deal of freedom to allocate emissions. In practice, however, exceptions in the CAA serve to take back to the federal government much of what it had seemed to give away. New Source Performance Standards establish federal standards for new sources and major modifications of existing sources. Existing major sources of ozone must generally employ federally mandated control technologies if located in areas that have not met the NAAQS. And emission standards for motor vehicles are set by the federal government (with a specific exception for California and states adopting California’s standards). What’s left then for the states to do? Primarily tighten the standards on existing sources. Any stationary source emitting 100 tonnes or more of a pollutant, 10 tonnes per year or more of a hazardous air pollutant, or 25 tonnes per year or more of combined hazardous air pollutants must comply with the SIP. In deciding whether to approve a SIP, EPA may only consider the overall question of whether the SIP will satisfy the NAAQS. Restrictions on specific facilities, even if they force certain companies to go bankrupt or greatly increase the emissions for others, may not be considered by EPA so long as the state demonstrates that its SIP is adequate.6 With few exceptions, EPA can only look at the overall question of whether the NAAQS will be met, not every permit or rule the state issues. Thus states have great discretion to achieve their NAAQS through regulating existing sources. And the differences from state to state can be striking. Unfortunately, for both political and economic reasons many SIPs have been unable to achieve the ‘clean air’ levels required by the NAAQS, and some cities remain out of compliance with the NAAQS. The term for this is non-attainment and it has been the most challenging aspect of the CAA’s history. If EPA believes the SIP will not achieve the NAAQS, EPA may start a process establishing a Federal Implementation Plan (FIP) that effectively supplants the SIP and imposes its requirements directly on polluters. The threat of a FIP, though, is rarely used. EPA could deny federal highway and sewage treatment funds and, in the past, simply ban new construction in a state that fails to write or implement a SIP. The CAA also requires that new and modified major stationary sources in non-attainment areas employ control technologies with the ‘lowest achievable emissions rates’ and that existing sources use ‘reasonably available control technologies’. The 1990 Clean Air Act Amendments broke down the goal of attainment into achievable, intermediate steps. Non-attainment areas were divided into five categories, from Marginal, Moderate, and Serious to Severe and Extreme. As an area’s level of non-attainment increases, the requirements become more onerous. Taking the example of ozone non-attainment, those areas in Moderate non-attainment must show 3 per cent emissions reduction per year, establish transport control measures, and institute 6 Union Electric Company v EPA, 427 U.S. 246 (1976).

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380 james salzman a clean fuels programme to reduce volatile organic compounds (VOCs), among other requirements. Areas that are in Extreme non-attainment (e.g. Los Angeles) must do all of this in addition to other steps such as offsetting the growth in vehicle emissions by reducing emissions elsewhere. By breaking down the goal of attainment into discrete, additive requirements, SIPs no longer had to meet (or fail to meet) the NAAQS in one fell swoop. Instead they must demonstrate ‘reasonable further progress’, defined as steady progress towards attaining compliance with the NAAQS by the statutory date.

18.3.1.3 Regulatory Experimentation The unceasing pressure over the last four decades to improve the nation’s air quality has provided a valuable opportunity for experimentation and fine-tuning the CAA’s regulatory approaches. This is most evident in the area of trading, where experiences under the CAA have truly influenced environmental policy around the globe. Bubbling is the simplest form of trading. By drawing an imaginary bubble over a manufacturing site, EPA regulates only the total emissions from the bubble. This allows the facility to increase emissions from some smokestacks while reducing from others, allocating its emissions in the most cost effective manner. Offsets occur within a non-attainment area and rely on both the idea of bubbling and the trading of pollution rights. In simple terms, offsets create a bubble over an air quality region. A new source (or old source with a major modification) may not pollute unless it offsets its emissions by reductions from other existing sources in the region. For example, a new source that will emit 100 tonnes of NOx must offset this amount by paying existing sources in the airshed already in compliance to reduce emissions by 100 tonnes. Thus the reductions from the existing sources are offset against the emissions of the new source, resulting in no net increase in total emissions within the region. By forcing the source of the new emissions to buy reductions from current sources, offsets permit economic growth in a non-attainment area while maintaining air quality. Opponents of trading have pointed to hot spots, areas of concentrated pollution and environmental justice concerns. Because a trading programme relies on the market rather than regulators to allocate emissions (subject to each source’s overall permit level), it is possible that sources in close proximity to one another may purchase most of the allowances. This could result in much higher levels of the air pollutant in some communities than o thers. These are often poor communities of colour. Trading designers can take steps to avoid hot spot problems but these can decrease the number of participants or make participation more expensive, both problematic if the goal is to create a robust trading market.

18.3.2 Clean Water Act The Clean Water Act (CWA) was passed in 1972. The key water quality provisions of the CWA fall into three main categories. Historically the most important set of provisions regulates point sources of pollution through a diverse array of effluent limitations and technological standards. A second, and to date far less consequential, body of provisions requires states to develop plans for the regulation of nonpoint pollution. As described below, the CWA itself does not regulate nonpoint pollution but leaves it largely to the discretion of the states. A final group of provisions, of growing relevance today, requires states to set water quality

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united states of america 381 standards for the waterways within their borders and to limit discharges as needed to achieve those standards. The CWA applies only to ‘navigable waters’ but defines these expansively as ‘the waters of the United States, including the navigable seas’.7 The CWA applies not only to rivers and streams, but also to man-made canals, dry creek beds, and even the waste streams inside an industrial facility. Courts have concluded that the CWA generally does not apply to groundwater. Congress’ principal goal in passing the CWA was to reduce discharges from point sources. Unlike the approach of the Clean Air Act, Congress directed the EPA to establish effluent limitations for each type of point source, based on what the available technology could accomplish. Put another way, the CWA reverses the approach of the CAA. Instead of setting ambient water concentrations and working backwards to determine individual emission levels, the CWA starts with individual effluent levels.

18.3.2.1 Point Source Regulation The system that Congress chose to implement these limitations is the National Pollutant Discharge Elimination System (NPDES). Under the CWA, the ‘discharge of any pollutant by any person’ is unlawful without an NPDES permit. The CWA defines ‘discharge of a pollutant’ as ‘any addition of any pollutant to navigable waters from any point source’.8 Thus point sources generally must obtain an NPDES permit before discharging their wastes into a waterway. The permits are generally good for five years, after which they must be renewed, and during their life are subject to modification or revocation for cause. States can qualify to issue the NPDES permits if they can show that they have the needed administrative and engineering capability, and about three quarters of the states currently are qualified to issue them. In the other states, the EPA issues the permits. Each point source must report discharges on a regular, usually monthly, basis to EPA and to any state that has been delegated enforcement authority. Anyone wishing to determine whether a point source is violating the CWA can easily compare the effluent limitations contained in its NPDES permit with the reported discharges. Because the permits and reports are public records, anyone can check for violations. The CWA also includes a citizen-suit provision. The discharge reports are admissible as evidence of a violation in court. Point sources must meet technology-based effluent limits. For these sources, the CWA does not require the point sources to use a particular technology. The government instead decides on an appropriate numeric effluent limitation based on what specific technology can accomplish. Sources are then free to meet the effluent limitation in whatever manner they wish. Most sources are likely to adopt the technology used by EPA to set the limitation because the sources know that this technology will permit them to meet the effluent limitation. But a source is free to use a different technology if it will be at least as effective in reducing the pollution. This flexibility can be valuable to the firm that figures out a cheaper way to meet the effluent limitation. EPA now has set technological standards for more than fifty major categories of industrial facilities. If companies within an industry are dissatisfied with the guidelines, they must challenge the guidelines when issued by EPA. Faced with expensive effluent limitations, for example, what might a company do to avoid the limitations? One option is to discharge the waste into the local sewage system rather 7 CWA § 502(7), 33 U.S.C. § 1362(7).

8 CWA §§ 301(a), 592(12), 33 U.S.C. §§ 1311(a), 1362(12).

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382 james salzman than directly into the waterway. CWA regulates such indirect sources of pollution through both prohibited discharge standards and categorical pre-treatment standards. Under the former, the CWA prohibits indirect sources from discharging wastes into a sewage system that will interfere with the proper operation of the treatment works or pass through it untreated. Under the categorical pretreatment standard, the CWA requires indirect sources to meet best available technology standards for any discharge of toxic pollutants into a sewer system, unless the treatment plant has demonstrated that it can treat the pollutant adequately.

18.3.2.2 Nonpoint Source Pollution The CWA’s highly effective regulation of point sources must be balanced against its largely ineffective approach to nonpoint pollution. The CWA effectively leaves the regulation of nonpoint pollution up to the individual states. By the mid-1980s, nonpoint pollution had eclipsed point discharges as the largest contributor to water pollution in the United States. Why has Congress been so reticent to adopt measures that will reduce nonpoint pollution firmly and effectively? Nonpoint sources often are more difficult to regulate than point sources. Nonpoint sources far outnumber point sources. They are more varied, complicating the effort to determine appropriate technological standards. And it is often difficult to monitor their performance. But these are challenges that can be addressed, After analysing all of the policy considerations, one is inevitably left with the conclusion that politics has driven the CWA’s failure to take on nonpoint pollution in any meaningful way. The agricultural lobby, in particular, has been very successful in weakening or killing off proposals to regulate nonpoint pollution more rigorously.

18.3.3 Resource Conservation and Recovery Act The Resource Conservation and Recovery Act (RCRA) was passed in 1976.9 It accomplishes four basic goals. It (1) creates definitions to determine the classes of wastes coming under its authority; (2) creates a tracking system for hazardous waste from its creation to its disposal (the first environmental law to take such a life-cycle approach); (3) establishes handling standards for the waste from its generation to its disposal; and (4) provides authority for mandatory clean-up of polluted treatment, storage, and disposal facilities. The key provisions in RCRA deal with the disposal of solid waste (regulated in Subtitle D of the act) and the treatment and disposal of hazardous waste (regulated in Subtitle C). Because Subtitle C makes it much more expensive to dispose of hazardous waste, much of RCRA’s legal history can be read as a story of industry attempts to avoid having its waste considered hazardous waste and, once within the grips of Subtitle C’s coverage, to avoid being classified as a treatment, storage, or disposal facility.

18.3.3.1 Solid Waste and Solid Hazardous Waste RCRA regulates only the disposal of ‘solid waste’. The term ‘solid,’ however, is far broader than everyday usage, and covers virtually every form of matter except uncontained gases.10 This broad definition was necessary to prevent parties from converting their wastes to avoid 9 42 U.S.C. § 6901–6992k.

10 42 U.S.C. § 6903(27).

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united states of america 383 coverage. Add enough water and mix, and most solid wastes become liquid. The coverage of solid waste is not as extensive as the overbroad definition might suggest, though, because there are a number of important, large exemptions. Some wastes are exempt because they are regulated by other statutes. Thus RCRA does not cover waste in sewage that passes through a public water treatment plant, wastewater discharges regulated by a Clean Water Act permit, mining wastes or nuclear wastes, for example. Municipal garbage, a very large waste stream that may contain small amounts of hazardous materials, such as batteries and insecticide aerosols, is exempt from treatment as hazardous waste for practical reasons because of its sheer size. RCRA identifies two categories of hazardous waste—‘listed wastes’ and ‘characteristic wastes’.11 Listed wastes are, as the name suggests, substances that EPA has determined routinely contain hazardous constituents or exhibit hazardous qualities. These are listed in the Code of Federal Regulations. If a company produces a listed waste but believes that it should not be treated as hazardous waste, it may petition EPA to delist the waste but this can be an expensive and lengthy process. The second category identifies hazardous wastes by their characteristics. If a waste is not a listed waste but has the characteristics of being ignitable (i.e. products that are capable of causing fire during routine transportation, storage, or disposal), corrosive, reactive, or toxic then it is treated as a hazardous waste. While the burden of identifying listed wastes falls on EPA, the burden of identifying characteristic wastes falls on the waste generators who must determine through standard tests whether their waste is ignitable, corrosive, reactive, or toxic. Hence the need for rigorous compliance monitoring by EPA. RCRA regulates treated wastes very differently depending on whether they are listed or characteristic wastes. If characteristic wastes no longer exhibit their hazardous characteristics, they are treated simply as solid waste and fall out of Subtitle C’s coverage. Listed wastes, though, are subject to two rules. The mixture rule states that any mixture of a listed waste with another solid waste is still considered a hazardous waste (with an exemption for municipal solid waste).12 The derived from rule requires that wastes derived from the treatment of a hazardous waste also be treated as hazardous wastes, such as sewage sludge or incinerator ash.13

18.3.3.2 Generators, Transporters, and TSDs Just as RCRA divides the waste world into solid waste and solid hazardous waste (listed and characteristic) with very different requirements for each, RCRA divides the world of actors into three categories—generators, transporters, and ‘treatment, storage, and disposal facilities’ (TSDs). While each class of actor faces differing responsibilities, all must comply with the tracking requirements. RCRA follows the disposal of waste by establishing a ‘cradleto-grave’ tracking scheme from the generators of waste to transporters through to disposal facilities. In principle, if we know where the waste is at all times and ensure that people handling the waste at each stage act responsibly, then there should be no difficulties. To this end, when a generator produces a threshold amount of hazardous waste it must obtain an identification number for the waste from EPA and fill out a ‘manifest’. This sheet a ccompanies the waste shipment to its final disposal and, at each stage it changes hands, the manifest stays with the shipment while a copy is sent back to the generator. When the TSD finally receives the waste, it must inspect it to check that the contents match the manifest. This 11 40 C.F.R. § 261.

12 40 C.F.R. § 261.3(a)(2).

13 40 C.F.R. § 261.3(c).

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384 james salzman cradle-to-grave tracking ensures that the problem of unidentified wastes at contaminated sites, regulated by CERCLA and described later in this chapter, is not repeated. In addition to the manifest requirements, generators are subject to a variety of requirements. Generators must determine if their waste is a listed or characteristic hazardous waste. They must also ensure proper storage and labelling of wastes, keep records of waste generation and test results, and submit periodic reports. For small companies, these requirements can prove quite resource intensive.

18.3.4 Comprehensive Environmental Response, Compensation and Liability Act While RCRA addresses the issue of current waste disposal through prescriptive regulation, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, known popularly as ‘Superfund’) responds to problems from prior waste disposal practices and imposes liability to ensure the cleanup of contaminated sites.14 It is this imposition of liability, however, that has sparked harsh criticism over CERCLA’s fairness and cost effectiveness. In many respects, CERCLA is a simple statute. First, it gives the government the power to compel parties to clean up releases of hazardous substances from a facility. Second, it gives government and private parties the authority to recover the costs of cleanup. These simple powers allow parties both to force cleanups and to allocate their costs, with enormous indirect effects on the treatment and disposal of waste.

18.3.4.1 The Operation of CERCLA To determine which sites should be cleaned up first, EPA created a National Priority List (NPL) of the most seriously contaminated sites. Those sites presenting the greatest danger to public health, welfare, or the environment are ranked higher, according to their score based on the Hazard Ranking System, a formula that takes into account a site’s toxicity, proximity to local population, potential to contaminate drinking water, etc. CERCLA is relevant whenever there has been a ‘release’ or a ‘substantial threat’ of a release of a ‘hazardous substance’ into the environment from a ‘facility’.15 As with all of CERCLA’s provisions, these terms have been broadly defined and interpreted. ‘Release’, for example, has been defined to include virtually any event where a hazardous substance could be released from its container. A ‘substantial threat of release’ is even broader, covering hazardous substances still contained in corroding tanks or abandoned drums. The definition of ‘hazardous substance’ is likewise very broad. Going beyond RCRA, it includes almost any substance considered hazardous under any other pollution statute. Once the threat of release of a hazardous substance from a facility has been established, CERCLA authorizes two types of cleanups. A ‘removal’ action is short term, intended to alleviate immediate dangers to the public health or environment. These are the emergency actions carried out quickly to reduce the most significant hazards, in the expectation that longer-term actions will be necessary. The second, and more common, type of response is known as ‘remediation’. This is a longer-term action, seeking to provide a permanent remedy 14 42 U.S.C. §§ 9601–9675.

15 42 U.S.C. § 9607(1).

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united states of america 385 to the maximum extent practicable. All cleanups must follow the requirements set out in the National Contingency Plan (NCP), including provisions for extensive remedial investigations and feasibility studies (known as RI/FS), public consultation requirements, etc. If the NCP ‘recipe’ of mandatory procedures is not followed, then CERCLA’s grant of authority to recover costs will not apply. There are three types of response actions allowed under CERCLA, all driven by the central premise that the taxpayer should not foot the bill for cleanup costs. First, EPA can carry out the cleanup itself and sue the potentially responsible parties (known as PRPs) later. Second, EPA can order PRPs to perform the cleanup. This avoids the problem of delay because CERCLA does not allow any pre-enforcement review of such orders. A third form of compensation applies to private parties that have cleaned up a site. So long as there has been a release or threatened release of a hazardous substance from a facility, a private party can clean up the site (in a manner consistent with the NCP) and sue other PRPs to recover costs. Through this route there is no need for prior EPA approval or, for that matter, any government supervision at all. CERCLA also authorizes the federal and state governments and Indian tribes to sue for ‘natural resource damages’ to pay for both the restoration and cost of damaged resources.

18.3.4.2 Liability for the Costs of Response Actions Under CERCLA, the bill ultimately ends up in the hands of PRPs. CERCLA establishes four broad classes of PRPs: (1) current owners and operators of a facility (even if they were not owners when disposal occurred); (2) prior owners or operators at the time of disposal; (3) arrangers of disposal or treatment (often called ‘generators’); and (4) transporters (if they played a substantial role in selecting the facility). As with the rest of the statute, the d efinitions of PRPs are exceedingly broad. While the categories of PRPs set out who potentially might pay, CERCLA’s most controversial provision concerns liability—who actually does pay. CERCLA employs the standard of strict, joint, and several liability. The strict liability provision does away with the need for proof of negligence, intent, or harm. So long as there was a release or threatened release of a hazardous substance from a facility, response costs were incurred consistent with the NCP, and the party is a PRP, it is liable. The biggest concern raised by the retroactive liability standards and broad categories of PRPs is that of fairness. While such general categories of PRPs help ensure that the taxpayer will not end up paying for the cleanup, it is worth considering whether there is a principled reason to hold many of the PRPs liable. Can they all fairly be thought of as polluters? And is it fair to hold them liable for actions taken years ago that were completely legal at the time? Because CERCLA’s liability net has been cast extremely wide, there has been an enormous amount of litigation to find defences for PRPs. Subsequent amendments to CERCLA have also created a few opportunities to reduce, though usually not escape, liability. CERCLA exempts releases caused by an ‘act of God’, an ‘act of war’, or an act of a third p arty.16 Defences based on the act of God and war exemptions, though, have met with little success. Joint and several liability can be avoided if a PRP can demonstrate its waste is capable of apportionment. If EPA determines that a PRP contributed a minimal amount of hazardous waste compared to other wastes at the site or, as the property owner, the PRP did not permit the hazardous 16 42 U.S.C. § 9607(b)(1).

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386 james salzman waste to be stored or have reason to know of its prior storage, EPA can reach an early ‘de minimis’ settlement with the PRP. This settlement includes complete absolution from additional or future liability, in return for the payment of a premium over what would otherwise be a fair share. There are additional provisions exempting municipalities, lenders that do not exercise management control over the site, and landowners who have undertaken ‘all appropriate inquiry’ before purchasing the property and have no ‘actual or constructive knowledge’ of the hazardous substances.

18.3.5 National Environmental Policy Act Passed in 1969, the National Environmental Policy Act (NEPA) was the first major statute of the modern era of environmental law.17 NEPA took a fundamentally different approach than the patchwork laws that had preceded it and the more prescriptive national pollution statutes that would follow. NEPA does not seek to ensure environmental protection through technology-forcing standards or market instruments. Rather, NEPA relies on information, forcing agencies to consider the environmental impacts of their proposed actions and alternatives. NEPA requires that all federal agencies create an environmental impact statement (EIS) on a ‘recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment’.18 Preparing an EIS is a considerable undertaking, analysing the environmental impacts across a range of proposed actions. This analysis considers both unavoidable adverse impacts and mitigation alternatives. In simple terms, NEPA cases generally raise one of two questions—should the agency have prepared an environmental impact statement and, if so, was the EIS adequate? The general remedy for a NEPA violation is a remand to the agency to stay its proposed project until it prepares and considers a satisfactory EIS.

18.3.5.1 A Procedural Statute Courts have gone to great lengths to make clear that NEPA is a procedural rather than a substantive statute.19 Once an agency has made a decision subject to NEPA’s procedural requirements, the judge may only consider whether the agency was arbitrary and capricious in failing to prepare an EIS or consider the relevant environmental issues. The judge cannot make the substantive decision on behalf of the agency. So long as the agency complied with the NEPA process and fully considered the EIS, the decision must stand even if the agency did not choose the environmentally preferable option. If it is unclear whether an EIS must be prepared, agencies will often first develop a much shorter Environmental Assessment (EA). An EA operates as a quick review and, if it suggests no EIS is necessary, the agency will issue a Finding of No Significant Impact (FONSI). Agencies can often use the EA process to reach a finding of no significant impact by including mitigation measures, known as a ‘mitigated FONSI’. The decision not to undertake an EIS can then be challenged in court as final agency action. If the agency proceeds to prepare an EIS, a draft EIS is distributed and made available for public comment for forty-five days. 17 42 U.S.C. §§ 4321 et seq. 18 42 U.S.C. § 4332(c); also known as NEPA, s. 102(2)(c). 19 Strycker’s Bay Neighborhood Council Inc. v Karlen, 444 U.S. 223 (1980).

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united states of america 387 The agency then prepares a final EIS as well as responds to categories of public comments. Once the EIS has been issued, there is a thirty–day moratorium on agency action so that challenges can be filed. Much NEPA litigation focuses on the question of whether the EIS is adequate. A standard EIS will include an explanation of the purpose and need for action, a full description of alternative actions, an assessment of the environmental impacts of these actions, and possible mitigation measures to reduce adverse impacts of the proposed actions. In taking a hard look at such an EIS, courts have focused on questions of alternatives, adequacy, uncertainty, and new information. This has resulted in a range of legal strategies to consider in challenging the adequacy of an EIS—the EIS did not set forth responsible opposing views or alternatives, it was not compiled in objective good faith, or it would not permit the decision-maker to fully consider and balance the relevant factors.

18.4 Implementation Framework 18.4.1 Agency Authorities The law of agencies is crucial to understanding environmental law because, put simply, one can hardly identify an environmental issue that is not managed by an agency. Air and water pollution is addressed by EPA. The Department of Defense (through the Army Corps of Engineers) manages wetlands. The Department of Agriculture (Forest Service) manages forests. The list goes on and on. Agency action is where environmental protection happens. Government agencies play many different roles. Agencies can issue rules, conduct inspections, award licences, adjudicate disputes, demand information, hold hearings, and give and take money, to name just a few activities. As a result of these varied roles, agencies maintain an uneasy position within the three branches of government. As described above, the executive branch faithfully executes the laws, the legislative branch creates laws and controls finances, and the judicial branch interprets the law and applies the Constitution. All agency actions must be authorized by Congress. But, from the brief description above, it is evident that agencies fit in all three branches—making rules, investigating compliance, punishing violations, and hearing appeals. This combination of tasks leads to tension within the executive and legislative branches as they compete with one another to influence agency behaviour. The judiciary acts as a referee in this turf war, determining if agencies (generally located within the executive branch) have followed Congressional intent closely enough. Passed in 1946, the Administrative Procedure Act (APA) sets out procedures agencies must follow when promulgating rules and adjudicating conflicts. It also establishes the standard of judicial review (which varies depending on the type of action) when agency actions are challenged in court. Understanding these two common types of agency action is important because the main line of attack against agency action is just as often procedural (e.g. the proper notice requirements for rule-making were not complied with) as substantive (e.g. the Clean Air Act forbids this agency action). As its name suggests, rule-making describes agency decisions that affect general classes of people. Rule-making concerns prospective policy decisions and produces rules of general applicability. Adjudication, by contrast, concerns agency decisions over claims of disputed

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388 james salzman facts that require particularized application and produces what are called ‘orders’. An agency decision, for example, to establish the level of sulfur dioxide that oil-fired power plants may emit would be rule-making. If a particular plant challenged the rule’s applicability to its operations, the agency decision would be an adjudication. In general, differentiating between rule-making and adjudication is straightforward, but it is an important distinction because the APA’s requirements for the two procedures are significantly different.

18.4.1.1 Agency Rule-making Agency rules come from statutory mandates. In most environmental laws Congress simply passes broad framework legislation, leaving it up to the agency to fill in the (often extensive) details. As described above, when the Clean Air Act requires EPA to ‘protect the public health with an adequate margin of safety’, EPA must decide which specific pollutants to regulate and their permissible levels of emission. In RCRA, Congress leaves it up to EPA to determine which substances should be regulated as solid hazardous waste. These are technical decisions with immense practical impact. Not all agency rule-making is statutorily driven, though. Some rules may come from public petition; some may result from political pressure from Congress or the White House. All are published in the Code of Federal Regulations. In reaching these decisions, the agency must comply with the APA’s procedural requirements for rule-making. In the environmental context, we need only concern ourselves with the APA’s requirements for what is known as informal rule-making (sometimes referred to as notice-and-comment rule-making). The term informal, though, can be misleading. Informal rule-making is still a rigorous procedure. Section 553 of the APA requires agencies to provide notice of a proposed rule in the Federal Register, including the agency’s source of authority to issue the rule, a description of the proposed rule, notice to interested persons of the location and time of public hearings, as well as the opportunity to submit comments. The agency also must publish the final rule in the Federal Register, including responses to the categories of submitted comments, justifying the rule’s final form. This is a far more rigorous process for agency action than in any other country in the world and seeks to ensure that agency rules are well-crafted, transparent, and consider the views of affected parties.

18.4.1.2 Challenges to Agency Rule-making and Standards of Review When final rules are challenged (as many of EPA’s are), the key question for the courts is what the standard of review should be. The APA states that courts must ensure the agency action is not arbitrary and capricious or an abuse of discretion. Although this standard might sound very deferential to agencies, federal courts in the 1970s used it to take a ‘hard look’ at agency actions. In Citizens to Preserve Overton Park v Volpe20 the Secretary of Transportation provided no justification for approving the construction of a highway through a park in Memphis, despite the fact that the relevant law forbade use of public funds to construct highways through public parks if a ‘reasonable and prudent’ alternative route was available. In remanding the case back to the agency, the D.C. Circuit Court of Appeals held that it could not determine if the agency’s action was arbitrary and capricious absent evidence that the agency’s decision had resulted from a thorough, probing, in-depth review. This and similar decisions forced agencies to create more thorough records of decision in anticipation of judicial review. 20 401 U.S. 402 (1971).

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united states of america 389 The most important case concerning judicial review of agency regulations is Chevron U.S.A., Inc. v Natural Resources Defense Council.21 Chevron concerned EPA’s interpretation of the term ‘stationary source’ under the Clean Air Act. The case turned on whether the EPA’s interpretation of this statutory language (viewing stationary source as the entire facility rather than a single smokestack) represented a permissible interpretation of the Clean Air Act. If Congress had provided little guidance to the text’s meaning, how much deference should be given to the agency’s interpretation of the statutory requirement? The approach to statutory interpretation that the Court adopted in Chevron, sometimes referred to as the ‘Chevron two-step’, asks two questions. First, has Congress spoken directly to the precise question at issue? If the statutory language is clear or Congress’ intent is otherwise clear, then the issue is simple. The court must determine whether the agency action conforms to the unambiguous Congressional mandate. The court exercises a completely independent judgment with no deference to the agency. If, though, as is far more often the case, Congress has not directly addressed the specific question, or is silent, or ambiguous, or has expressly left a gap for the agency to fill, the second step kicks in. In this instance, the court must decide only whether the agency’s answer is based on a ‘permissible’ construction of the statute. The agency’s interpretation need not be the best or most reasonable in the eyes of the court; it simply must be reasonable and not arbitrary, capricious, or an abuse of discretion. In Chevron, the Supreme Court concluded that the Clean Air Act was ambiguous but that EPA’s interpretation of the term ‘stationary source’ was reasonable and thus permissible. As a final insight on rule-making, it is important to note that one class of rules is not subject to the APA requirements for informal rule-making at all. Known as non-legislative rules or publication rules, these include guidance documents and interpretive rulings. Such non-legislative rules are far more voluminous than either the statute or informal rules they support. As an example, there are roughly 20 feet of shelf space for non-legislative rules issued under the Clean Air Act. Agencies can issue these rules without any notice or public comment for the simple reason that, technically, these rules are not legally binding. Agencies, however, usually follow such non-legislative rules, placing regulated parties at the risk of violating requirements on which they never had an opportunity to comment.

18.4.2 Enforcement 18.4.2.1 Administrative Enforcement The US EPA wields the primary implementation and enforcement authority for most environmental statutes. It interprets how the laws and regulations should be applied, determines enforcement priorities, issues penalty guidelines, and serves as the institutional check on state enforcement of federal environmental laws. The agency’s ten regional offices generally have divisions for each programme—air, water, solid waste, pesticides, etc.—with their own enforcement personnel. Their activities are overseen by the headquarters Office of Enforcement and Compliance Assurance (OECA). This group seeks to coordinate nationwide enforcement initiatives, strategically targeting certain sectors and companies. OECA also ensures consistency by the requirement that it sign off on all judicial filings and consent decrees entered into both at headquarters and in regional offices. 21 467 U.S. 837 (1984).

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390 james salzman Despite EPA’s central role in enforcement, it does not have independent authority to litigate cases. The Department of Justice (DOJ) serves as EPA’s lawyer, filing actions on its behalf and representing the agency in court. As with EPA’s regional offices, many of EPA’s cases are litigated around the country by lawyers in DOJ’s regional offices. EPA also partners with states, whose environmental agencies play a major role in enforcement. Indeed, most environmental laws provide for delegation of enforcement authority to state programmes. With limited resources, EPA has made use of this opportunity, delegating significant enforcement authority to the states. These delegations are premised on the adoption of state statutes and regulations that are substantially equivalent to or no less stringent than EPA’s program under the federal statute. In many respects, this arrangement benefits both parties. EPA has limited resources and cannot practically carry out the inspections and enforcement actions necessary to ensure adequate deterrence throughout the country. State and local authorities can not only provide these resources, but as noted, are generally closer to both the actors and the impacts of pollution, and thus are likely to better understand the specific challenges and opportunities surrounding particular enforcement actions. Given the risk of state enforcement authorities catering to local industry interests, EPA retains the ability to step in and intervene in enforcement actions, even if the state has already imposed a sanction. In a practice known as ‘overfiling’, EPA can seek to impose penalties in addition to the state’s sanctions if the state has not taken ‘timely’ and ‘appropriate’ enforcement action. In simple terms, if EPA officials determine that the state’s response to non-compliance was too slow (i.e. not within 90–120 days from the date of discovery of the violation) or too lenient (i.e. an inadequate response given the severity of the violation), it can seek to increase the penalties or impose other appropriate remedies, so long as they are consistent with the substantive law of the state in which the violation took place (since the state programme was approved by EPA in lieu of the federal programme). The majority of enforcement actions are civil proceedings, and the vast majority are administrative hearings conducted within the agency rather than in the court system. The benefits of relying on internal agency adjudication rather than courts are obvious—easier to administer, less costly in terms of time and personnel, no need to coordinate with the Department of Justice, and an administrative judge who is familiar with environmental statutes. The proceedings start with a complaint filed against the defendant, identifying the environmental violation and the sanction. If the defendant contests the charge or proposed penalties, it files an answer and there is a hearing before an Administrative Law Judge (ALJ), who reviews the written materials and may hear witnesses or documentary evidence. The ALJ files a decision, which may be appealed within the agency to the Environmental Appeal Board.

18.4.2.2 Civil Remedies: Penalties and Injunctions At this point, upon exhausting agency procedures, the parties can go to court and engage in civil litigation, where the EPA is represented by DOJ lawyers. Civil litigation generally takes longer and is more expensive than administrative enforcement. As a result, far fewer cases are resolved through courts than through the administrative process. When the government decides to seek civil penalties, it must calculate the appropriate level of monetary penalty. The government has a great deal of discretion in setting fines. The maximum is usually set by the statute and can be extremely high (e.g. $32,500 per day per violation for some violations of the Clean Water Act). The minimum is the lowest level that

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united states of america 391 can still be considered a deterrent. The proposed damages are important not only for the court case but also for the negotiations preceding a trial, particularly since about 95 per cent of enforcement actions never go to trial. EPA has adopted penalty policies for each of the major environmental statutes to guide the setting of civil penalties in particular cases. Such policies carry a variety of benefits. They ensure consistency and thus fairness across different cases; they also help EPA to justify the penalties that it imposes when a penalty is challenged. What factors should EPA consider in setting a penalty? Most of the penalty policies start by focusing on two factors: (1) the gravity of the violation, and (2) the amount of money that the regulated party saved by not complying with the environmental law. EPA believes that violators, at a minimum, should disgorge any savings from their illegal action, and graver violations deserve higher penalties. To ensure that penalties are fair, EPA also considers the degree to which a violation was willful or negligent; the violator’s prior history of compliance; the degree to which the violator cooperated with authorities; and the violator’s ability to pay. Finally, to encourage swift compliance, EPA also considers whether a violator has already taken steps to avoid future violations. In some circumstances, an injunction can be far more costly to a violator than even heavy fines, particularly when the injunction delays a large development project where loans must continue to be paid, permits may expire, and stopping one action may have the result of halting many related activities. The scope and length of an injunction can vary. A permanent injunction ceases all activity indefinitely. A temporary injunction might provide protection until an Environmental Impact Statement or some other process has been completed. Some courts may choose not to issue an injunction when other effective remedies are available.

18.4.2.3 Criminal Sanctions The key statutes governing air, water, and solid waste all provide for criminal sanctions. Despite their greater deterrent force and powerful rhetoric, criminal sanctions can be challenging in an environmental context. Under a theory known as the ‘Responsible Corporate Officer Doctrine’, criminal liability can be imposed on corporate managers or officers who were in a position to know about and prevent a violation, even if they were not the ones who actually committed the illegal act. Mere knowledge is not enough. A person liable as a responsible corporate officer must also have had the ability or authority to influence the corporate conduct causing the violation. The government has successfully used this doctrine to convict high-level corporate officers (even presidents) for environmental violations by lower-level employees.

18.4.3 Citizen Suits Environmental organizations have played a critical role in shaping and strengthening environmental law through litigation. As explained above, environmental groups can obtain judicial review under the APA when EPA or other federal agencies take administrative actions that are inconsistent with the law or facts. The ability to pursue judicial review provides environmental organizations with considerable power in the administrative process. In deciding how to interpret and apply the law, EPA and other federal agencies recognize that environmental groups will sue if not satisfied with the agency action.

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18.4.3.1 Types of Citizen Suits Every major federal environmental law passed since 1970 (except FIFRA) also has contained a citizen suit provision. Under the citizen suit provisions, individuals and organizations can pursue two new categories of lawsuits not authorized by the Administrative Procedure Act. First, they can sue anyone or any organization, either public and private, alleged to be in violation of an environmental law. Environmental groups have actively used this opportunity both to supplement the government’s limited enforcement resources and to pursue violations that the government is ignoring. Second, individuals or groups can sue the EPA administrator or other relevant governmental officials who are failing to carry out a non-discretionary statutory obligation, such as the promulgation of a required regulation. The opportunity to bring private prosecutions remains extremely important. Statutes in other fields, such as antitrust and securities regulation, permit private individuals to sue for damages where the plaintiffs have been injured by violations. In authorizing citizen suits under the federal environmental statutes, however, Congress for the first time called on private citizens to play a direct public role in enforcing the law. In authorizing individual citizens and environmental groups to serve as private prosecutors, Congress has been cautious not to make citizen suits into profit-making opportunities. Most of the citizen suit provisions permit citizens and environmental groups to pursue only injunctive relief. A few statutes authorize courts to impose monetary penalties in citizen suits, but the penalties are payable to the United States, not the private prosecutor. In practice, however, plaintiffs often settle their citizen suits on terms that include not only the cessation of violations, but also (1) the payment of monies to the plaintiff or other organizations and (2) agreements to engage in supplemental projects of benefit to the environment. Citizen suit provisions do not permit private plaintiffs to prosecute every violation of an environmental law. First, for largely political reasons, Congress purposefully has excluded some violations from the purview of citizen suits. The Clean Air Act, for example, does not permit lawsuits to enforce many automobile emission standards. Second, the Eleventh Amendment of the Constitution precludes plaintiffs from pursuing citizen suits against states if the suits seek monetary penalties, although purely injunctive actions are still permissible. Finally, most of the citizen suit provisions authorize lawsuits only against persons ‘alleged to be in violation’ of the underlying act. This precludes citizen suits alleging purely past violations; to prevail, a plaintiff must demonstrate a reasonable likelihood that a past polluter will continue to pollute in the future.

18.4.3.2 Alternative to Government Action In authorizing citizen suits, Congress also worried about the confusion and conflicts that could result if the government and private plaintiffs simultaneously sued over the same violation. As a result, citizen suit provisions prevent private plaintiffs from filing a lawsuit if the federal or state government has commenced and is ‘diligently prosecuting’ a civil or criminal action or, under some statutes, has initiated at least some forms of administrative enforcement proceeding. To give the government an opportunity to pursue its own enforcement relief and to give the defendant a chance to clean up its act, plaintiffs also must provide the federal government, any involved state, and the alleged violator with notice of the alleged violation at least sixty days before filing a citizen suit.

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united states of america 393

18.4.3.3 Litigation Costs and Standing To help promote citizen suits, Congress has authorized courts to order defendants to reimburse prevailing plaintiffs for their litigation costs, including ‘reasonable’ lawyer fees. Courts calculate fee awards by taking the reasonable time that the plaintiff ’s lawyer has spent on the citizen suit and then multiplying this figure by a reasonable lawyer fee rate to get an amount known as the ‘lodestar’. Whenever an environmental group or individual seeks judicial review or files a citizen suit, one of the first questions that the court will ask is whether the plaintiff has standing. According to the Supreme Court, an individual must generally demonstrate four facts to establish standing. First, the plaintiff must demonstrate that the challenged action has or will cause the plaintiff ‘injury in fact’. Second, the plaintiff must show that this injury can be traced to the challenged action. Third, the plaintiff must show that the court, through some form of available relief, can redress the injury. The fourth requirement for standing is only ‘prudential’, and therefore Congress can eliminate or alter it: the injury must be within the ‘zone of interests’ that the underlying substantive statute is designed to protect. Where an organization sues, the organization must show not only that one or more of its members satisfy these standing requirements but also that the goal in seeking judicial relief is ‘germane to the organization’s purposes’. The Court in recent years has been less generous in granting standing. In Lujan v Defenders of Wildlife,22 for example, an environmental organization sought review of the Department of the Interior’s decision that the Endangered Species Act does not extend to US agency actions that affect endangered species overseas. Two of the organization’s members submitted affidavits stating that they had previously travelled to overseas areas in which species were threatened by US agency actions and that they hoped to go again. The Court concluded that such inchoate plans to return to the areas were inadequate to establish standing; only present and definite plans to return would provide the type of ‘actual or imminent’ injury required for standing. The Court also held that a plaintiff did not have standing simply because he or she had a professional or personal interest in studying or seeing an endangered species. The requirement that injuries be redressable by judicial action also occasionally trips up environmental plaintiffs. The Supreme Court, for example, has held that a plaintiff does not have standing to bring a citizen suit for environmental violations that have occurred entirely in the past, because neither of the remedies potentially available to the plaintiff (an injunction or a civil penalty payable to the government) could remedy any injury that the plaintiff suffered as a result of the past violation. In a subsequent decision, however, the Court held that an environmental organization has standing to seek civil penalties in the face of ongoing violations, even though any penalties awarded go to the government, because the penalties will deter future violations.

18.5 Conclusion Environmental law in the United States is, as we have seen, well-developed. A number of significant statutes are now many decades old, and the implementation framework has 22 504 U.S. 555 (1992).

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394 james salzman adapted to the unique challenges to which environmental harm gives rise. However, challenges remain. The increasing partisanship in Congress has made it extremely difficult to amend statutes so they can adapt to new issues and changes in our understanding of environmental threats. Changes in the courts’ attitudes to federal power and to standing rules for citizen suits, as well as threats to the resources of some of the key agencies, also give rise for concern. Going forward, this may lead to increased activity at the state level or increased litigation by environmental groups.

18.6 Selected Bibliography Chertow, M. and D. Esty (eds.), Thinking Ecologically: The Next Generation of Environmental Policy (New Haven: Yale University Press, 1997). Ferrey, S., Examples and Explanations: Environmental Law (New York: Wolters Kluwer, 7th edn. 2016). Lazarus, R. and O. Houck (eds.), Environmental Law Stories (New York: Foundation Press, 2005). Lazarus, R., The Making of Environmental Law (Chicago: University of Chicago Press, 2004). Ruhl, J. B. et al., The Practice and Policy of Environmental Law (New York: Foundation Press, 4th edn. 2015). Salzman, J. and B. Thompson, Environmental Law and Policy (New York: Foundation Press, 4th edn. 2014).

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Pa rt I I

PROBL E M S

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chapter 19

Atmospher ic Pol lu tion Massimiliano Montini

19.1 Atmospheric Pollution: Definition and Legal Boundaries

398

19.2 Air Pollution Control in a Transboundary Context

399

19.3 Leading Models of Regulatory Intervention and Areas of Activity

401

19.4 Comparative Assessment of Some Selected Air Pollution Issues

413

19.5 Conclusion

416

19.6 Acknowledgements

417

19.7 Select Bibliography

417

19.3.1 The EU Model 19.3.1.1 Regulatory Competence 19.3.1.2 Areas of Activity 19.3.2 The US Model 19.3.2.1 Regulatory Competence 19.3.2.2 Areas of Activity 19.3.3 The Chinese Model 19.3.3.1 Regulatory Competence 19.3.3.2 Areas of Activity

19.4.1 The Regulatory System of Air Pollution Control 19.4.2 Legislative Approach to Air Pollution Control 19.4.3 Instrument Choice 19.4.4 The Role of Courts

401 401 402 407 407 407 410 410 411

413 414 414 415

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398 massimiliano montini

19.1 Atmospheric Pollution: Definition and Legal Boundaries The atmosphere can be briefly defined as ‘[t]he air surrounding the Earth’.1 Therefore, it is not a surprise that, in non-technical terms, the word ‘atmosphere’ is often used interchangeably with ‘air’. As in the legal context most legislative acts and statutes prefer to use the term air, often in conjunction with the term pollution, I will hereinafter refer generally to air pollution rather than to atmospheric pollution. Initially, air pollution was perceived as a primarily local issue. It has been argued that ‘legislative action in the face of atmospheric pollution dates back to at least 1273’, when the first attempt to prohibit coal burning in London was made.2 It is only during the twentieth century that air pollution started to be considered also in a transboundary context as it became clear that air movements do not consider national boundaries and air pollution occurring in one country can have negative consequences also in other countries. In this sense, a few events which focused attention on air pollution issues in different national jurisdictions may be mentioned. For instance, as reported in the literature, in the United States the first famous air pollution case was Georgia v Tennessee Copper (1907) and the first controversy about the use of leaded gasoline arose in 1925, although it was only addressed much later.3 During the 1960s, the scientific and then public opposition to open air nuclear tests taking place in Nevada finally convinced the Kennedy administration to suspend those tests and agree with the USSR to conclude the Nuclear Test Ban Treaty.4 In Europe, air pollution became an issue of broad concern starting in the 1950s, following the occurrence of the Great London Smog, in early December of 1952.5 Moreover, the European legislative response to air pollution and industrial safety issue was greatly influenced by the Seveso industrial accident on 10 July 1976, when, following an accident in a chemical manufacturing plant owned by a subsidiary of chemical company Givaudan, the population of several towns of Northern Italy was severely exposed to a toxic substance (TCDD).6 More recently, air pollution started to be seriously considered as a priority issue also in China, following the ‘inconvenient truth’ of the appalling air quality indexes reported in most of the major Chinese cities such as Beijing.7

1 Oxford Dictionary of Ecology (2010), available at: http://www.oxfordreference.com/. 2 I. Rowlands, ‘Atmosphere and Outer Space’ in D. Bodansky, J. Brunnée, and E. Hey (eds.), The Oxford Handbook of International Environmental Law (Oxford: Oxford University Press, 2008), 315–36, at 317. 3 R. V. Percival, Against All Odds: How America’s Century-Old Quest for Clean Air May Spur a New Era of Global Environmental Cooperation (Utah: University of Utah Press, 2016). 4 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, 5 August 1963, 480 UNTS 43. 5 See P. Brimblecombe, The Big Smoke (London: Metuen, 1987). 6 See E. Homberger et al., ‘The Seveso Accident: Its Nature, Extent and Consequences’ (1979) 22 Annals of Occupational Hygiene 327. 7 See for instance the 2014 revision of the general Environmental Protection Law and the 2015 new Air Pollution Legislation.

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atmospheric pollution 399 Moreover, some air pollution events were characterized by a transboundary, t ransnational dimension. A notable example is provided by the Trail Smelter arbitration between the United States and Canada,8 which was prompted by the fumes stemming from a lead and zinc smelter based in British Columbia and affecting the neighbouring areas situated in the United States. Along the same lines, the so-called acid rain phenomenon may be recalled. This was mostly felt by Scandinavian countries and during the 1970s prompted the international community to sign the 1979 Geneva Convention on Long Range Trans-boundary Air Pollution (LRTAP Convention).9 Although it is not a global treaty, the LRTAP Convention represents the most important model for addressing air pollution in a transboundary context.10 Regarding emissions of greenhouse gases and their effects on the climate system, these will be discussed in the present chapter only insofar as they are connected with the more traditional regulation of air pollution.11

19.2 Air Pollution Control in a Transboundary Context To analyse air pollution legislation in a comparative perspective it is useful to provide first a brief overview of the regulatory regime existing at international level. In this sense, first of all it should be observed that, as compared to other areas of international law, air pollution regulation is a relatively underdeveloped area. Unlike matters such as the protection of the marine environment, biodiversity or climate change, there is no truly global convention governing air pollution. As noted above, the most relevant international legal instrument dealing with air pollution, more specifically in a transboundary context, is the 1979 LRTAP Convention.12 The Convention is a regional instrument covering fifty-one countries around the world, mostly in Europe and North America. In the last thirty-five years, it has significantly influenced the development of air pollution legislation in many countries around the world, including both parties and non-parties. The LRTAP Convention defines long range trans-boundary air pollution as follows: [A]ir pollution whose physical origin is situated wholly or in part within the area under the national jurisdiction of one State and which has adverse effects in the area under the jurisdiction of another State at such a distance that it is not generally possible to distinguish the contribution of individual emission sources or groups of sources.13 8 Trail Smelter Arbitration, RIAA, vol. III, 1905–82. 9 Convention on Long-Range Transboundary Air Pollution, adopted in Geneva on 13 November 1979, 1302 UNTS 217. 10 See Rowlands, ‘Atmosphere and Outer Space’, at 322–6; P. Birnie, A. Boyle, and C. Redgwell, International Law and the Environment (Oxford: Oxford University Press, 3rd edn. 2009), 349–55. 11 See the chapter by Gundlach and Gerrard in the present volume. 12 On this instrument see A. Byrne, ‘The 1979 Convention on Long-Range Transboundary Air Pollution: Assessing its Effectiveness as a Multilateral Environmental Regime after 35 Years’ (2015) 4 Transnational Environmental Law 37–67; B. Lode, P. Schoenberger, and P. Toussaint, ‘Clean Air for All by 2030? Air Quality in the 2030 Agenda and in International Law’ (2016) 25 Review of European, Comparative and International Environmental Law (RECIEL) 27–38. 13 Article 1(b) LRTAP Convention.

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400 massimiliano montini It should be noted that this type of pollution involves many pollutants which may travel thousands of kilometres and therefore give rise to complex relationships between a multiplicity of states.14 In order to efficiently tackle air pollution, the LRTAP Convention establishes a series of principles and objectives for air pollution control policy as well as a cooperation system among the parties. It provides for a generic obligation to ‘endeavour to limit and, as far as possible, gradually reduce and prevent air pollution including long-range trans-boundary air pollution’15 and leave state parties wide discretion to determine their concrete national measures to tackle air pollution. The main contribution of LRTAP Convention is the establishment of a framework for further cooperation among the parties. This has paved the way for the adoption of several Protocols which, over the years, have supplemented the original provisions of the Convention.16 The implementation of the LRTAP Convention and its Protocols has led to the improvement of national and supra-national legislation on air pollution control and management of air quality in many countries. Moreover, it has contributed to the observed fall of transboundary air pollution in Europe in the last decades.17 In addition to the LRTAP Convention, another relevant example of international cooperation in this field is the 2002 ASEAN Haze Agreement.18 The Agreement aims to prevent and monitor haze from forest fires. To this effect, it creates a framework for cooperation among the signatory Parties. It has been argued that the Agreement has had a positive influence on national legislation in the concerned countries.19 However, it has not achieved its objective of limiting the occurrence of the haze phenomenon.20 Well before the recognition of the acid rain problem and the consequent adoption of the LRTAP Convention, the management of air quality and the control of air pollution at the trans-boundary level was already an area of concern as suggested by the aforementioned Trail Smelter case. The arbitral tribunal constituted to hear the case famously ruled that:

14 See P. Okowa, ‘The Legal Framework for the Protection of the Environment Against Transboundary Air Pollution: A Reflection on Customary and Treaty Law’ in H. Post (ed.), The Protection of Ambient Air in International and European Law (Utrecht: Eleven International Publishing, 2009), 53–71, at 57. 15 Article 2 LRTAP Convention. 16 While the first Protocol establishes a long-term Cooperative Programme for Monitoring and Evaluation of the Long-range Transmission of Air Pollutants in Europe (EMEP), from the second Protocol onwards, those instruments aim at addressing single pollutants and reducing their transboundary fluxes: the second Protocol is dedicated to sulphur emissions reduction; the third Protocol concerns nitrogen oxides control; the fourth Protocol regards Volatile Organic Compounds (VOCs); the fifth Protocol deals with further reductions of sulphur emissions; the sixth relates to air pollution from heavy metals, such as cadmium, lead and mercury; the seventh addresses Persistent Organic Pollutants (POPs), while the eighth and final Protocol aims at the abatement of Acidification, Eutrophication and Ground-level Ozone. 17 See Birnie, Boyle, and Redgwell, International Law and the Environment, at 348–9. 18 ASEAN Agreement on Transboundary Haze Pollution, 10 June 2002, available at www.ecolex.org (TRE-001344). On this instrument see P. Nguitragool, Environmental Cooperation in South-East Asia: ASEAN’s Regime for Transboundary Haze Pollution (London: Routledge, 2011). 19 L. M. Syarif, ‘Evaluating the (In)effectiveness of ASEAN Cooperation against Transboundary Air Pollution’ in S. Jayakumar et al. (eds.), Transboundary Pollution: Evolving Issues of International Law and Policy (Cheltenham: Edward Elgar, 2015), 295–326, at 325, cited in Lode, Schoenberger, and Toussaint, ‘Clean Air for All by 2030?’, at 35. 20 Lode, Schoenberger, and Toussaint, ‘Clean Air for All by 2030?’, at 35.

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atmospheric pollution 401 under the principles of international law, as well as of the law of the United States, no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.21

This principle, which is also referred to as the no-harm principle, represents one of the founding pillars of international environmental law and constitutes the basis for principle 21 of the Stockholm Declaration (1972)22 and principle 2 of the Rio Declaration (1992).23 Therefore, it may be said that the relevance of the Trail Smelter case lays in ‘contextualising the application of the ‘no harm’ principle to the field of industrial pollution’.24 Given the limited coverage of the principles and legal instruments developed in a transboundary context, most of the relevant legislation tackling air pollution has been developed at the regional or national levels. This is the case of the three selected notable models of regulation in this field, namely the European Union (EU), the United States, and China. In the following sections, the comparative analysis will focus on the most relevant features contained in the legislation developed within those jurisdictions to address air pollution.

19.3 Leading Models of Regulatory Intervention and Areas of Activity 19.3.1 The EU Model 19.3.1.1 Regulatory Competence In the EU model, the regulatory competence in the field of environmental policy and law is shared between the legislative and executive branches. The legislative competence is exercised jointly by the Council and the European Parliament, which adopt legislative acts. The European Commission, besides making all the proposals for new legislation, exercises the executive competence. To this effect, it adopts all the necessary regulatory and administrative acts. The European Commission is an administrative-political body, without specific technical competence. It is composed of twenty-eight Members, one for each Member State, who act in their personal capacity, in the only interest of the EU, and do not receive instructions from their own Member States. The administrative structure of the Commission is based on several Directorates General (DG). A member of the Commission is responsible for each DG. In the environmental field, the key Directorate is the ‘DG Environment’.25 21 Trail Smelter Arbitrary Decision, 35 AJIL 684, at 716 (1941). 22 ‘Declaration of the United Nations Conference on the Human Environment’, Stockholm, 16 June 1972, UN Doc. A/CONF 48/14/Rev.1, 2ff. 23 ‘Rio Declaration on Environment and Development’, 13 June 1992, UN Doc. A/CONF.151/26. Rev.1. 24 Okowa, ‘The Legal Framework for the Protection of the Environment Against Transboundary Air Pollution’, at 55. 25 It should be recalled here that within the European Commission, there are several other Directorates which may exercise a certain influence in the development and enforcement of environmental policies and law, such as for instance ‘DG Climate Action’, ‘DG Energy’, ‘DG Agriculture and Rural Development’, ‘DG Heath and Food Safety’, and ‘DG Internal Market’.

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402 massimiliano montini The European Commission is assisted by the European Environment Agency (EEA), a supporting agency, created in 1990, which is in charge of gathering, analysing, and disseminating data on the quality of the environment and produces periodical reports of the state of the environment in Europe. The EEA is headed by an Executive Director appointed by the Managing Board, where representatives of the Member States as well as of the European Commission sit. The EEA is not a regulatory agency, as this term is usually understood, because the adoption of all regulatory decisions and acts remain within the European Commission’s competence.26

19.3.1.2 Areas of Activity The EU started to deal with air pollution in the 1980s. In the EU legal regime, regulatory intervention in the air pollution field has focused on two main areas of activity or ‘tracks’: the first track deals with the regulation of emissions from both stationary (industrial installations) and mobile sources (cars and other vehicles); the second track concerns ambient air quality control (with a focus on specific pollutants). The main overall distinction between these two tracks is that, whereas the first track concentrates on the sources from where pollutants are emitted (large industrial facilities or a variety of vehicles), the second track focuses on the substances, whether to ensure that the quality of the air measured in certain areas respects the required tolerable levels of substances or to set overall emission limits for certain substances. Regarding the first track, the first Directive on the control of air pollution from industrial plants was Directive 84/360/EC.27 In the following decades, the initial legislation was updated and revised by several other Directives. A key moment in the evolution of the EU legislation on air emissions from industrial installations was the adoption of Directive 96/61/EC,28 which introduced the integrated pollution prevention and control approach and acknowledged the principle according to which the definition of emission limit values for each industrial plant had to be determined by the national authorities in charge of issuing the relevant authorizations. The current regime on the control of air pollution from industrial plants is based on Directive 2010/75/EU on industrial emissions,29 which has replaced and consolidated within a single text the previous Directives on the control of emissions from industrial plants, on large combustion plants, and on waste incineration. Directive 2010/75/EU contains a general obligation for industrial installations to hold a valid permit and foresees an authorization procedure for all industrial installations operating within the European territory. The issuance of permits and the monitoring of the installations falling under the scope of application of the Directive lay within the responsibility of 26 L. Kramer, EU Environmental Law (London: Sweet & Maxwell, 2015), 41; as noted by Kramer, when the EEA was established, a discussion took place on whether it should be awarded some enforcement powers, with respect to the application of EU environmental law, but the final decision was not to grant any of those powers to the agency. 27 During the 1980s, Directive 84/360/EC, the initial framework legislation on industrial plants, was supplemented by a Directive on the control and limitation of air emissions from large combustion plants (Directive 88/609/EC) and by two Directives on the incineration of municipal waste (Directives 89/369/ EC and 89/429/EC). 28 Directive 96/61/EC concerning Integrated Pollution Prevention and Control (IPPC), OJ 1996 No. L257. 29 Directive 2010/75/EU on industrial emissions, OJ 2010 No. L334/17 (often referred to as the ‘IED’).

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atmospheric pollution 403 Member States’ national authorities. In order to receive a permit, the regulated industrial installations (e.g. combustion plants, chemical factories, steel producers, waste treatment plants) subject to the permitting requirement have to adopt ‘best available techniques’ (a term that encompasses technologies but also infrastructure and operations) that allow them to respect the ‘limit values’ set for certain substances. Directive 2010/75/EU directly defines the limit values for certain polluting substances, while leaving to the Member States the competence to determine the limit values for all other pollutants.30 The first track of the EU legislation on the control of air emissions is completed by a regulatory system dealing with pollution from mobile sources (products), such as cars and other passenger and commercial vehicles.31 The current system is mostly focused on targeting air emissions from cars; it includes measures on setting limit values for certain pollutants (such as carbon monoxide, hydrocarbons, and nitrogen oxides)32 and on determining CO2 average emissions targets per car fleet,33 as well as provisions on the reduction of volatile organic compound (VOC) emissions generated from the handling of gasoline34 and on the quality of petrol and diesel fuels.35 Early EU legislation in this field (concerning cars and other motor vehicles) dates back to the 1970s, when air pollution considerations were intertwined with the need to ensure equal conditions for products circulating the EU common market.36 In that period, limit values for carbon monoxide, hydrocarbons, and nitrogen oxides were first introduced.37 The imposition of limit values for carbon dioxide (CO2) is more recent38 and follows the failure to reduce CO2 by means of a voluntary agreement concluded between the European Commission and the car manufacturing industry association.39 At EU level, air emissions from airplanes and ships are largely unregulated,40 30 Kramer, EU Environmental Law, at 302–6. 31 Ibid., at 308–14. 32 Commission Regulation 692/2008/EC on type-approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6), OJ 2008 No. L199, as amended by Commission Regulation 2016/646/EU, OJ 2016 No. L109. 33 Regulation 443/2009/EC setting emission performance standards for new passenger cars, OJ 2009 No. L140. 34 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. 35 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. 36 Directive 70/220/EC, OJ 1970 No. L176, was the first instrument to regulate emissions from cars and other motor vehicles. One of its main aims was to harmonize at European level regulation in this field, in order to prevent Member States from adopting national measures ‘liable to hinder the establishment and proper functioning of the common market’ (see Directive 70/220/EC, 2nd and 3rd recitals, in Kramer, EU Environmental Law, at 308). 37 Emission limit values for carbon monoxide and hydrocarbons were first introduced by Directive 70/220/EC, whereas limit values for nitrogen oxides were introduced by Directive 77/102, OJ 1977 No. L32. 38 Regulation 443/2009/EC setting emission performance standards for new passenger cars, OJ 2009 No. L140, first introduced targets of CO2/km for the average emissions of the new car fleet. 39 Kramer, EU Environmental Law, at 309–14. In 1998, the European Commission concluded a voluntary agreement with the car manufacturing industry association, based on a voluntary commitment of the car industry to reduce CO2 emissions for new cars and a correspondent undertaking of the Commission to abstain from regulating the matter. However, a few years later, given the inability of the car manufacturing industry to achieve the expected targets, the Commission proposed new legislation on the progressive reduction of CO2 emissions form cars, which was adopted in 2009 (Regulation 443/2009/EC). 40 Kramer, EU Environmental Law, at 314–15.

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404 massimiliano montini while air emission limit values are foreseen for machines other than vehicles, airplanes, and ships.41 Moreover, it should be noted that the possibility of indirect regulation of air emissions through construction requirements represents (so far) a missed opportunity, insofar as Directive 2009/125/EC42 on the eco-design of energy related products excludes from its field of application all means of transport.43 The second track of EU activity in connection with air pollution rests upon two foundational instruments, namely Directive 2008/50/EC, often referred to as ‘CAFE’,44 and Directive 2001/81/EC or ‘NECD’.45 The process that led to the CAFE Directive was long and complex and its adoption came, in fact, as a response to this complexity. The original framework Directive on ambient air quality was adopted in the mid-1990s (Directive 96/62/EC46) and was accompanied by a series of ‘daughter directives’ aimed at regulating and managing ambient air quality with respect to specific pollutants (Directives 1999/30/EC,47 2000/69/ EC,48 2003/2/EC,49 and 2004/107/EC50). Together, these instruments focused on thirteen selected pollutants.51 Eight pollutants, namely sulphur dioxide, nitrogen dioxide, benzene, carbon monoxide, lead, particulate matters (PM10 and PM2.5), and tropospheric ozone were covered by the first three daughter directives, which were later merged, together with the framework Directive 96/62/EC, into Directive 2008/50/EC.52 Five other pollutants, namely cadmium, arsenic, nickel, mercury, and polycyclic aromatic hydrocarbons, are covered by the so-called fourth daughter Directive, namely Directive 2004/107/EC, which is still in force.53 Due to its complexity, the implementation of this system was very difficult. Therefore, in 2002, the EU Sixth Environmental Action Program called the European Commission to adopt a Thematic Strategy on Air Pollution, with the aim to provide a revised long-term plan for air pollution and management.54 The Thematic Strategy on Air Pollution, 41 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. 42 Directive 2009/125/EC establishing a framework for the setting of ecodesign requirements for energy-related products, OJ 2009 No. L285. 43 Kramer, EU Environmental Law, at 309. 44 Directive 2008/50/EC on ambient air quality and cleaner air for Europe, OJ 2008 No. L152. 45 Directive 2001/81/EC on national emission ceilings for certain atmospheric pollutants, OJ 2001 No. L309/22 (usually referred to as the ‘NECD’). 46 Directive 96/62/EC of 27 September 1996 on ambient air quality assessment and management, OJ 1996 No. L296. 47 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. 48 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. 49 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. 50 Directive 2004/107/EC relating to arsenic, cadmium, mercury, nickel and polycyclic aromatic hydrocarbons in ambient air, OJ 2005 No. L23. 51 Kramer, EU Environmental Law, at 302–6. 52 Directive 2008/50/EC on ambient air quality and cleaner air for Europe, OJ 2008 No. 152/1. 53 Kramer, EU Environmental Law, at 305–6. 54 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.

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atmospheric pollution 405 adopted in 2005, identified and analysed the problems relating to the implementation of Directive 96/62/EC and the related four daughter Directives,55 and it led to the adoption of the CAFE Directive, which incorporates the first three (of the four) existing daughter Directives mentioned above. The CAFE Directive contains several provisions which largely resemble those already contained in the previous framework Directive and the first three (now repealed) daughter Directives. However, its novelty consists in recasting those provisions within a single text. In essence, the CAFE Directive standardizes the way in which air quality is to be measured and requires the development of air pollution control strategies. Regarding measuring, the CAFE Directive’s system focuses on measurements of air quality in specific zones and agglomerations, where State Members have to keep concentrations of regulated pollutants (which include SO2, NO2, fine particulate matter, etc.) below certain ‘critical levels’. The measures that Member States can use to keep the required air quality are not prescribed, so states remain free to select different tools. The degree of flexibility afforded by the CAFE Directive has come under some criticism, with one commentator stating that it ‘constitutes a remarkable regress in environmental protection’, insofar as ‘unlike previous directives, it no longer require[s] that air quality standards have to be respected all over the territory of the Member States’.56 Moreover, under Article 23 of the Directive, Member States have an obligation to prepare and implement air quality plans only in case limit or target values are exceeded and such national plans simply have to be communicated to the European Commission, but do not require a formal approval. The other pillar of the second track is the NECD, which introduces national emission ceilings (NECs) for certain pollutants without prescribing specific actions to meet them. This instrument was enacted as an implementing measure of the 1999 Gothenburg Protocol to the LRTAP Convention on Acidification, Eutrophication and Ground-level Ozone mentioned above.57 Its objective is to reduce acidification, eutrophication, and tropospheric ozone concentrations. Following the 2012 amendment of the Gothenburg Protocol, the European Commission presented a proposal for a new revised Directive on NECs, which was approved as Directive 2016/2284/EU.58 The new Directive entered into force on 31 December 2016 and replaced the original NECs Directive as of 30 June 2018. It contains updated and improved national ceilings for the five pollutants controlled by the Protocol (i.e. sulphur dioxide, nitrogen oxides, volatile organic compounds, ammonia, and fine particulate matter), which are responsible for acidification, eutrophication, and ground-level ozone pollution phenomena. The revised NECs Directive is part of the so-called Clean Air Programme for Europe, which updates the 2005 EU Thematic Strategy on Air Pollution and sets new objectives for EU air pollution control and management policy for 2020 and 2030.59

55 Communication of 21 September 2005 from the Commission to the Council and the European Parliament—Thematic Strategy on Air Pollution, COM(2005) 446. 56 Kramer, EU Environmental Law, at 302. 57 Protocol to the 1979 Convention on Long-Range Trans-boundary Air Pollution on the Reduction of Acidification, Eutrophication and Ground-Level Ozone, 30 November 1999, EB.AIR/1999/1. 58 Directive (EU) 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. 59 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.

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406 massimiliano montini Along the boundaries of the scope of application of air pollution law, a question which deserves particular attention relates to the interplay between air pollution, energy, and climate change policy and law. As for the competence to regulate these matters, while energy has been traditionally a stand-alone area of competence, the relationship between environmental issues stricto sensu and climate change issues has evolved over the last few years. In fact, in Article 191 of the Treaty on the Functioning of the European Union (TFEU),60 climate change is regarded as part of environmental policy and law. As a result, climate change issues initially fell within the competence of DG Environment. However, in 2010, a remarkable change occurred, as an autonomous DG Climate Action was established. In the last few years, the connection between climate change and general environmental issues has become increasingly loose61 and EU law tends to regulate CO2 not as a pollutant. Finally, another question that merits attention in the present context is implementation and enforcement. Within the EU legal system, the main responsibility for implementing EU law, as well as to monitor its effective application, rests with Member States. Each of them has the duty to monitor the application of environmental law within its jurisdiction. Cases regarding shortcomings in the implementation of environmental law by private or public parties are normally resolved by national courts of the Member States. At the EU level, the European Commission monitors the correct implementation and enforcement of EU environmental law by the Member States. However, it does not have direct inspection powers, so it exercises only an indirect control over the application of the law. The Commission may bring infringement cases before the Court of Justice of the European Union (CJEU) against Member States which are not complying with their obligations under EU law. The CJEU, which is the highest judicial body of the EU legal system, may be called upon to decide cases where Member States do not correctly implement, interpret, or enforce EU environmental legislation. This said, it should be noted that the rules on access to justice for individuals and non-governmental organizations (NGOs) are quite restrictive, so that in practice it is very difficult for private persons to have direct access to the Court.62 As regards air pollution, in particular, it has been observed that EU ‘air pollution legislation is hardly enforceable’.63 This is likely due to the excessive complexity of the law in this field.64 This notwithstanding, EU legislation can provide a good starting point for action for those Member States that are willing to promote effective policies to curb air pollution. However, due to the large discretion that EU legislation leaves to Member States, the EU regime is largely unable to prescribe specific types of actions to States that lack interest or motivation to address air pollution.65 This may explain the low number and limited variety of infringement cases (mostly related to formal non-transposition or lack of reporting) which have been brought by the European Commission against Member States before the Court in connection with air pollution.66

60 Consolidated version of the Treaty on the Functioning of the European Union, OJ 2012 No. C326. 61 This tendency is reinforced by the fact that in recent years climate change issues have started to be mostly addressed in connection with energy policies, rather than with environmental policies (see for instance 2020 and 2030 framework action plans on climate change and energy). 62 Kramer, EU Environmental Law, at 155–9. 63 Ibid., at 301. 64 Ibid. 65 Ibid. 66 Ibid., at 302.

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atmospheric pollution 407

19.3.2 The US Model 19.3.2.1 Regulatory Competence In the US model, the regulatory competence in the field of environmental policy and law is shared between the Congress and the Environmental Protection Agency (EPA). The Congress embodies the legislative branch of the US legal system and is in charge of adopting environmental laws and statutes. The executive branch is represented by the EPA, which has the main responsibility to enforce environmental legislation. Its enforcement duties are fulfilled in cooperation with states. The cooperation between the EPA and states in the environmental sector is normally referred to as with the term ‘cooperative federalism’.67 The EPA was established in 1970 by the Nixon administration,68 in order to reorganize and integrate the environmental responsibilities previously held by several federal agencies and provide a common focal point for the implementation of various federal pollution control laws and statutes. The EPA is headed by an Administrator, who is nominated by the US President and confirmed by a vote of the Senate. The EPA is a regulatory agency, which has the duty to enforce environmental legislation and to this effect adopts regulatory acts and monitors their application. It is structured in twelve assisting offices and ten regional offices.

19.3.2.2 Areas of Activity One of the main tasks of the EPA is to administer the Clean Air Act (CAA),69 which is one of the most important US environmental statutes. The CAA is the reference framework legislation governing air pollution. The original version of the CAA was approved in 1963, but in its present form it dates back to 1970, although it was subsequently revised, particularly in 1977 and 1990. The CAA, codified as 42 U.S.C. § 7401 et seq. (corresponding to sections 101 et seq.), aims to protect human health and the environment from emissions of air pollutants. It is divided into various titles. The most relevant ones for the present chapter are: Title I (‘Air Pollution Prevention and Control’), which deals with stationary sources, complemented by Title V, which governs the permitting system and Title II (‘Emission Standards for Moving Sources’), which regulates mobile sources. Other significant titles deal with issues such as acid rain deposition and regulation of ozone-depleting substances. Stationary sources (Title I) are regulated along two tracks, through a combination of both ambient air quality standards (section 110) and technology/performance-based standards (section 111). With regard to the ambient air quality control, the EPA is in charge of defining and periodically revising a list of air pollutants which may reasonably endanger public health or welfare, and it has to issue air quality criteria for such pollutants. Thereafter, the Agency sets national ambient air quality standards (NAAQS) for each of the air pollutants, 67 On ‘cooperative federalism’ in US environmental law see for instance R. L. Glicksman and J. A. Wentz, ‘Debunking Revisionist Understandings of Environmental Cooperative Federalism: Collective Action Responses to Air Pollution’ in K. Robbins (ed.), The Law and Policy of Environmental Federalism. A Comparative Analysis (Cheltenham: Edward Elgar, 2015), 3–27. 68 The National Environmental Policy Act 1969, as amended (Pub. L. 91–190, 42 U.S.C. 4321–4347, 1 January 1970, as amended by Pub. L. 94–52, 3 July 1975). 69 Clean Air Act, 42 U.S.C. §7401 et seq. (1970).

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408 massimiliano montini for which air quality criteria have been determined pursuant to section 108 (section 109).70 So far, the EPA has adopted NAAQS for six pollutants, namely carbon monoxide, lead, nitrogen dioxide, ozone, particle pollution (including PM2.5 and PM10), and sulphur dioxide. The standards set by the EPA are based on scientific data and may be revised when new data become available. Once the NAAQS have been defined by the EPA, the federated states have the duty to draft plans, known as State Implementation Plans (SIPs). SIPs must be submitted to the EPA, which verifies whether they meet statutory minimum requirements and approves them. States enjoy a discretionary power in determining the exact content of their SIPs, provided that they respect certain statutory minimum requirements (section 110). Following the 1990 amendments to the CAA, the EPA may impose sanctions in case SIPs are not submitted, are not adequate or are not properly implemented. States have the primary responsibility to enforce SIPs. However, in case a SIP is not enforced, the EPA enjoys a substitutive power to enforce it (section 113). On the basis of NAAQS, all areas within each state have to be designated according to a tripartite distinction, which distinguishes between non-attainment areas, attainment areas, and unclassifiable areas.71 The proposal for designation is made by the states. It is then verified (and may be modified) and finally promulgated by the EPA (section 107). It should be underlined that, in non-attainment areas, where NAAQS are exceeded, the air pollution requirements to be achieved are set at a stricter level than in attainment areas. Generally speaking, state plans must contain adequate measures to improve air quality in non-attainment areas and maintain a good air quality in attainment areas. The same standards developed for non-attainment areas also apply to unclassifiable areas. Finally, states have a duty to regulate stationary sources so as to prevent air emissions which may cause interstate air pollution (section 110). Stationary sources are also subject to technology/performance standards. The EPA is in charge of publishing (and periodically revising) a list of categories of stationary sources, which are held to contribute significantly to air pollution and may endanger public health or welfare. On the basis of this classification, the EPA determines federal performance standards for all new sources falling within such categories. Such ‘new source performance standards’ (NSPS) normally apply to industrial facilities, such as power plants and manufacturing facilities, but sometimes also to smaller equipment. Standards are set at the federal level for new facilities and for modifications that increase the emission rate of existing facilities. The NSPS generally establish an emission limitation standard to be achieved, rather than specify a technology to be adopted, thus giving installations some flexibility on 70 According to the EPA website, the Clean Air Act identifies two types of national ambient air quality standards. Primary standards provide public health protection, including protecting the health of ‘sensitive’ populations such as asthmatics, children, and the elderly. Secondary standards provide public welfare protection, including protection against decreased visibility and damage to animals, crops, vegetation, and buildings (https://www.epa.gov/criteria-air-pollutants/naaqs-table). 71 According to the CAA, s. 107, the types of areas are defined as follows: (i) non-attainment, any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the national primary or secondary ambient air quality standard for the pollutant, (ii) attainment, any area (other than an area identified in clause (i)) that meets the national primary or secondary ambient air quality standard for the pollutant, or (iii) unclassifiable, any area that cannot be classified on the basis of available information as meeting or not meeting the national primary or secondary ambient air quality standard for the pollutant.

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atmospheric pollution 409 the method to be used in order to achieve the required performance targets (section 111). Standards for new sources are generally stricter than those for existing sources, which are normally regulated directly by the states, on the basis of the CAA requirements. Following the 1990 amendment of the CAA, the CAA was empowered to regulate hazardous air pollutants (also known as ‘toxic’ air pollutants, or ‘air toxics’) on a pollutant-by-pollutant basis, based on a risk analysis. In 1990, the Congress revised the previous provisions and, instead of granting the EPA discretion, it directly listed nearly 190 hazardous air pollutants. However, this list can be updated and modified by the EPA. For these pollutants, the EPA must determine ‘maximum achievable control technology’ (MACT) emissions standards for all new and existing major industrial sources. MACT standards require high emitting sources to reduce their emissions to the levels already being achieved by other similar sources. Indeed, MACT emissions levels are set with regard to those already achieved by the top-performing similar sources (section 112). Pursuant to Title V of the CAA, as amended in 1990, all major stationary sources have to apply for and operate pursuant to operating permits, issued in compliance with the CAA requirements.72 Operating permits are generally issued by state and local permitting a gencies (‘permitting authorities’), for a fixed term up to five years. Permit applications, proposed permits, and final permits must be submitted to the EPA for review, which can object to the issuance of a state proposed permit that is not consistent with the CAA provisions. With respect to mobile sources, the provisions of Title II of the CAA empower the EPA to set and revise, at a federal level, standards for all types of new vehicles and their engines (section 202). However, the implementation of the federal rules under these provisions also help states to attain and maintain air quality standards for common pollutants, as well as to reduce toxic air pollution emissions. Compliance with motor vehicle standards is monitored through testing and certification of new vehicles prior to their sale by the manufacturer (section 202). Moreover, other specific provisions regulate the quality of fuels for mobile sources (section 211). As a general matter, no state has the right to adopt or enforce its own motor vehicle standards (section 209). The only exception to this rule is the waiver granted to California, which enjoys a special treatment. This is due to the fact that California already had its own standards, before the first federal air pollution legislation was adopted. As a consequence, it was allowed by the CAA to maintain its own different standards, provided that they are at least as protective as the federal standards (section 209). Moreover, it is foreseen that other US states may also follow the stricter Californian standards, if they wish to do so. As in the case of the EU, a relevant issue relating to the application of US air pollution legislation is the close connection between air pollution and climate change under the CAA. The EPA has begun in recent years to regulate GHGs mitigation and climate change under its existing competence based on the CAA, as a result of a US Supreme Court decision that brought carbon dioxide under the remit of the CAA.73 On this basis, the Obama administration promoted the adoption of the ‘Clean Power Plan’ (CPP), approved by the EPA in 2015,74 with the aim to reduce carbon emissions from power plants. However, in early 2016 the Supreme Court stayed the implementation of the CPP pending judicial review.75 72 CAA, Title V, ss. 501–507. 73 See Massachusetts v EPA, 549 U.S. 497 (2007). 74 EPA, Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662 (23 October 2015). 75 See Order in pending case, West Virginia et al. v EPA et al (9 February 2016), 577 U.S.

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410 massimiliano montini Subsequently, the Republican administration took steps to radically reverse US climate and energy policy, including an executive order mandating EPA to review the Clear Power Plan. Finally, as regards implementation, the enforcement powers over US environmental law are shared between the EPA and federated states. For air pollution in particular, section 113 CAA provides that, in case any person is in violation or has violated a requirement or a prohibition contained in a plan or in a permit, the EPA has the power to issue an order requiring the person to comply with the relevant requirements or prohibitions, issue an administrative penalty, or bring a civil action against the wrongdoer. Unlike the situation under EU law, the EPA is entitled to carry out inspections, require monitoring of emissions, and ask for the production of documents (section 114). When states have in place SIPs which have been duly approved by the EPA, they also have the power to directly enforce their provisions. In such cases, when they both have a parallel competence to enforce, EPA and the states follow specific notification and consultation procedures, in order to avoid duplication of efforts and improve effectiveness (section 114).

19.3.3 The Chinese Model 19.3.3.1 Regulatory Competence In China, the legislative power lays in the hands of the National People’s Congress (NPC), which rarely meets in the plenary and normally exercises the legislative function through the Standing Committee of the National People’s Congress (SCNPC).76 Within the SCNCP, several legislative Commissions operate. In the environmental field, in particular, a relevant role is played by the Commission for the Protection of Environmental and Natural Resources (ENRPC), which coordinates environmental protection works and develops environmentrelated policies and guidelines. The executive power is exercised by the State Council, the supreme executive body and the highest organ of the public administration. The State Council is composed of several Ministries and Commissions, and it has regulatory powers. In the environmental sector, those powers are exercised by the Ministry for Environmental Protection (MEP). The MEP, formerly called State Environment Protection Administration (SEPA), is the administrative arm of the State Council in the environmental field. It supervises the implementation of environmental legislation at the state level and has nationwide control over the enforcement of environmental protection policies and laws throughout the country. In particular, MEP is responsible for determining national environmental policies for the protection of air, water, and soil, for managing waste disposal, for issuing national environmental regulations and national standards, and for providing guidance to provinces on environmental matters.77 The MEP works in close coordination with Environmental Protection Bureaus (EPBs),78 which represent the decentralized power structure in the environmental field. EPBs operate from provincial level down to the level of cities, counties, and townships. They are 76 See the official website of NPC, available at: http://www.npc.gov.cn/englishnpc/iframe/about_us.htm. 77 See MEP’s Mission, available at http://english.sepa.gov.cn/About_SEPA/Mission/. 78 G. Kostka, ‘Environmental Protection Bureau Leadership at the Provincial Level in China: Examining Diverging Career Backgrounds and Appointment Patterns’ (2013) 15 Journal of Environmental Policy & Planning 41–63.

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atmospheric pollution 411 responsible for managing environmental protection under their provincial or local jurisdiction, including drafting local laws, issuing administrative regulations, supervising and organizing work on environmental monitoring and control, and providing education and training in environmental issues. EPBs constitute the basic units for promoting compliance with environmental laws and regulations and are assisted by research institutes and monitoring centres.

19.3.3.2 Areas of Activity The Chinese legal framework for air pollution encompasses acts from national, provincial, and local levels. Legislation at the national level includes the Constitution, national laws, national administrative regulations, and departmental acts, while legislation at the provincial and local level includes local regulatory and administrative acts.79 As regards air pollution control in China, this is primarily regulated by the Air Pollution Prevention and Control Law (APPCL), originally adopted in 1988, modified in 2000 and last revised in 2016.80 The 2016 amendment updates the APPCL building upon the reform proposals contained in the 2013 Clean Air Action Plan.81 Moreover, it aims at better coordinating air pollution legislation with the implementation of the Chinese Nationally Determined Contributions (NDCs) adopted pursuant to the 2015 Paris Agreement. The revised APPCL addresses certain shortcomings of the previous version of the law. For example, the 2000 version of the law could not adequately balance conflicting economic development and environmental protection goals.82 Moreover, being based on a localized management regime, it was unsuitable to deal with inter-regional air pollution problems. Furthermore, it provided insufficient control of mobile sources of pollution, since it focused only on motor vehicles and ships. Finally, it had an inadequate enforcement system to punish violations of its provisions.83 The new APPCL improves the regulation of atmospheric pollution of the coal industry, manufacturing activities, and agriculture, and it strengthens the supervision and control of these activities.84 Moreover, the revised APPCL expands the control of the main atmospheric pollutants discharged from ‘the acid rain control areas and sulphur dioxide pollution control areas’ to the whole nation.85 Three major changes introduced in the amended APPCL deserve special mention.86

79 L. Feng and W. Liao, ‘Legislation, Plans, and Policies for Prevention and Control of Air Pollution in China: Achievements, Challenges, and Improvements’ (2016) 112 Journal of Cleaner Production 1549–58. 80 J. Cai and J. Tang, ‘Will China’s New Air Law Solve its Pollution Crisis?’ (2015) New Security Beat, available at: https://www.newsecuritybeat.org/2015/11/chinas-air-law-solve-pollution-crisis/. 81 The 2013 Clean Air Action Plan had been adopted with the aim to address the major air quality crisis which in recent years affected (in particular) several Chinese major cities. 82 See D. Li, ‘The Latest Revision on Atmospheric Pollution Prevention and Control Law: To Breathe Freely Under the Dome’ (2016) 13 November China Law Update, Tsinghua University China Law Review, available at: http://www.tsinghuachinalawreview.org. 83 Ibid. 84 See Chapter 4 (Arts. 32–85) APPCL. 85 See Art. 18 APPCL. 86 See Cai and Tang, ‘Will China’s New Air Law Solve its Pollution Crisis?’; Li, ‘The Latest Revision on Atmospheric Pollution Prevention and Control Law’; Feng and Liao, ‘Legislation, Plans, and Policies for Prevention and Control of Air Pollution in China’.

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412 massimiliano montini First, and most notably, the amended law explicitly places human health at its f oundation.87 Article 1 APPCL now refers to the objective of ‘safeguarding human health’. This acknow ledges the fact that the government is aware of the growing environmental health concerns of its citizens and intends to address it. By contrast, the previous version of law only contained provisions for the control of nitrous oxide and sulphur dioxide, while the revised law has expanded the list of controlled pollutants to also include particulate matter, volatile organic compounds, and greenhouse gases.88 Secondly, the amended APPCL strengthens the responsibility of the local governments and establishes a new framework for localized air quality management and coordination.89 The provisions of the new chapter 5 of the law call for state coordination with regard to inter-regional air pollution prevention and control. According to Article 4, provincial/local EPBs will be empowered to monitor air emissions and to issue air pollution emission permits. Local governments, including cities and provinces, will be responsible for submitting annual reports and disclosing their efforts to the public. Moreover, the State Council has the power to evaluate the environmental performance of provinces and autonomous regions. As a general matter, the new chapter 5 aims at establishing an improved and more effective system for regional joint prevention and control of air pollution. It is expected that the joint system established in the Beijing-Tianjin-Hebei Region will be able to effectively address the severe cross-border air pollution problem experienced in that area.90 Thirdly, the low levels of punishment of violators experienced so far greatly undermined the effectiveness of the APPCL.91 Indeed, the 2000 APPCL only authorized fines up to RMB 500,000 in the worst pollution cases and lacked a double-penalty liability clause to tackle both the enterprises and the individuals responsible for violations. By contrast, the new APPCL has more than thirty articles dealing with legal responsibilities and liabilities, and deals with punishment of up to ninety types of different behaviours.92 Moreover, the new law has doubled the maximum amount of fines up to RMB 1 million.93 Though treating all greenhouses gases as air pollutants is somewhat controversial, the new APPCL has included them within its scope.94 This creates an indirect connection with the growing Chinese experience with emission trading schemes.95 In addition, the revised APPCL promotes changes in the energy supply sector, by dealing with air pollution from 87 Ibid. 88 For instance, Art. 44 requires the production, import, sale, and use of these raw materials and products containing VOCs to meet higher quality requirements. Moreover, Art. 19 requires installations that discharge industrial gases or other hazardous air pollutants into the air to apply to the State Council for a discharge permit. 89 Li, ‘The Latest Revision on Atmospheric Pollution Prevention and Control Law’. 90 See Li, ‘The Latest Revision on Atmospheric Pollution Prevention and Control Law’. 91 See Feng and Liao, ‘Legislation, Plans, and Policies for Prevention and Control of Air Pollution in China’; Q. Liu, ‘China’s new Air Pollution Law omits key measures in war on smog’ (2015) China Dialogue, available at: https://www.chinadialogue.net/article/show/single/en/8156-China-s-new-Air-Pollution-Lawomits-key-measures-in-war-on-smog. 92 See Li, ‘The Latest Revision on Atmospheric Pollution Prevention and Control Law’. 93 See for instance Arts. 99 and 102 APPCL. 94 See Arts. 2 and 21 APPCL. 95 J. Zhao, ‘The Prevention and Control of Atmospheric Pollution in China’ (2014) Country Report: The People’s Republic Of China, 134–40, available at: http://www.iucnael.org/en/documents/1152-chinaprevention-and-control-of-atmospheric-pollution/file See also Feng and Liao, ‘Legislation, Plans, and Policies for Prevention and Control of Air Pollution in China’.

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atmospheric pollution 413 power generation sources.96 These measures are also in line with the emission targets contained in China’s NDC as well as with the policy commitments under the Chinese national thirteenth five-year plan (13FYP 2016–20).97 The effectiveness of environmental law is largely based on its successful enforcement. China’s environmental legislation has been historically viewed as containing a series of political statements, rather than effective tools to induce significant social change.98 The previous APPCL laid down principles and broad mandates, but very few compulsory regulatory mechanisms for effective emissions control, leaving more room for interpretation and little guarantee of enforcement.99 Effective implementation has also been undermined by technical and organizational shortcomings. The weakness of the environmental protection organs in China is traditionally due to their lack of staff, financial resources, and technical expertise. However, on the basis of the 2016 APPCL amendment, the MEP has enhanced its supervisory powers and this could eventually lead to better enforcement of environmental legislation.100

19.4 Comparative Assessment of Some Selected Air Pollution Issues 19.4.1 The Regulatory System of Air Pollution Control The regulatory systems for air pollution control which are in place in the EU, the United States, and China show many similarities. Generally speaking, in all three contexts the legislative competence is exercised at the central level. This corresponds to the Council and the European Parliament in the EU legal regime, to the Congress in the US system, and to the National People’s Congress in the Chinese model. Similarly, the most relevant executive competencies, except for enforcement, are also exercised at the central level. In particular, in the EU they are in the hands of the European Commission, in the United States they are discharged by the EPA, and in China they are exercised by the MEP. However, the centralization of these competencies is counter-balanced by a prominently decentralized implementation model, which has similar features in all three jurisdictions. In the EU, this is shown by the role that Member States play in the implementation of EU

96 See Art. 32 APPCL. 97 B. Kuhn, ‘Collaborative Governance for Sustainable Development in China’ (2016) 6 Open Journal of Political Science 433. 98 See Zhang et al., ‘Power Politics in the Revision of China’s Environmental Protection Law’ (2013) 22 Environmental Politics 1029–35. See also L. Ross, ‘China: Environmental Protection, Domestic Policy Trends, Patterns of Participation in Regimes and Compliance with International Norms’ (1998) 156 The China Quarterly 809–35. 99 R. Edmonds, ‘The Environment in the People’s Republic of China 50 Years On’ (1999) 159 The China Quarterly 640–9. See also S. Beyer, ‘Environmental Law and Policy in the People’s Republic of China’ (2006) 5 Chinese Journal of International Law 185–211. 100 Li, ‘The Latest Revision on Atmospheric Pollution Prevention and Control Law’.

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414 massimiliano montini law. In the US jurisdiction, the balancing takes the form of a delegation of implementation powers to the states, in the framework of the aforementioned ‘cooperative federalism’ model. Similarly, in the Chinese legal system, implementation powers have traditionally been delegated to the EPBs.

19.4.2 Legislative Approach to Air Pollution Control Much like the regulatory systems, the legislative approaches to air pollution control followed in the three jurisdictions share a number of common features. If one focuses on the types of instruments used, it emerges that the EU follows a ‘doubletrack’ approach while the United States and China are characterized by a ‘single-track’ approach. This may be explained by historical reasons. EU legislation was initially focused on the establishment of a regulatory framework for tackling micro-level sources of air pollution, including both stationary and mobile sources. Only later did the EU legislature start dealing with ambient air quality management and control, by passing separate legislation dealing with such a macro-level of intervention. This explains why the EU model can be described as a ‘double track’ regime. Conversely, in the US and the Chinese systems, the regulation of both stationary and mobile sources as well as of ambient air quality management and control is organized under a single piece of framework legislation, namely the CAA in the United States and the APPCL in China. However, the distinction between the double- and single-track approaches may hide a more fundamental common ground across the three jurisdictions, namely a focus on sources (stationary and mobile) and on air quality control. As discussed next, the instruments used also present some similarities.

19.4.3 Instrument Choice With regard to choice of instruments in the air pollution sector, it may be observed that in all three jurisdictions examined, the regulatory system is largely organized as a command and control regime. Significantly different, however, is the experience in US law with the use of economic instruments to address the drivers of the acid rain problem. The amendments to the CAA laid down the basis for the Acid Rain Program (ARP), contained in Title IV-A.101 The ARP has a global relevance, going well beyond the US jurisdiction, because it was the first major market mechanism used to regulate air pollution. The ARP, which became operational in 1995, establishes a cap-and-trade scheme to reduce the emissions of sulphur dioxide and nitrogen oxides from the power sector. The programme consisted of setting a cap, periodically revised, on the overall emissions of regulated pollutants. Initially, the ARP applied only to 111 high-emitting coal-fired power plants. Then, in a second phase, which began in 2000, its application was extended to cover smaller and less-emitting power plants.102 The ARP

101 See CAA, Title IV-A (Acid Deposition Control). 102 See EPA, ‘The Clean Air Act in a Nutshell: How It Works’, available at: https://www.epa.gov/cleanair-act-overview/clean-air-act-nutshell-how-it-works.

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atmospheric pollution 415 was only gradually phased in and the final cap was set in 2010, at a level which is about one half of emissions from the power sector originally recorded in 1980.103 Since the mid-1990s, the ARP has been the reference model for the development of cap-and-trade schemes around the world. However, the schemes in other jurisdictions have focused on the regulation of greenhouse gases. The main example is the EU emissions trading scheme (EU ETS), initially established in 2003.104 The European scheme, which now applies to thirty-one countries and covers over 11.000 installations, remains the largest cap-and-trade system in the world. It was inspired by the initial US experience and it has, in turn, become the reference model for emission trading schemes developed worldwide.105 In doing so, it may be argued that it has influenced the establishment and the evolution of similar schemes in several other jurisdictions, including the United States and China. In the United States, despite the absence of a federal cap-and-trade system for greenhouse gases, two well-established regimes now exist, one established in California (since 2006) and another one in some North-East States, under the name of Regional Greenhouse Gas Initiative (RGGI) (since 2005). Similarly, in China, the government launched in 2013 seven pilot projects in various parts of China, with a view to establishing later a nationwide cap-and-trade scheme for greenhouse gases. A nationwide scheme is expected to be in operation by the end of 2018.

19.4.4 The Role of Courts As to the content of the judicial review that can be exercised by courts with regard to the air pollution legislation in particular, it should be noted that the situation differs in the three contexts examined. In the United States, the courts have played a very active and influential role, at times enabling an extension of the CAA to the regulation of carbon dioxide,106 and at times hindering the development of a nationwide climate regulation.107 In the EU, the courts have played a more limited, although still significant role. In the area of air pollution, the CJEU has decided a few relevant cases. In the landmark Jacenek case (2009), the Court found that an individual affected by air pollution has the right to access (national) courts to require that the Member State where he/she resides draws up an action plan to improve air quality.108 This finding was subsequently confirmed by the Court’s decision in another case, where it was held that a natural or legal person concerned with the failure of a Member State to comply with the air quality limit values must be allowed to bring an action before a (national) court to require the adoption of a plan consistent with EU air pollution legislation.109 103 See EPA, https://www.epa.gov/airmarkets/acid-rain-program. 104 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. 105 On the EU ETS, in comparison with other relevant emission trading schemes see S. Borghesi, M. Montini, and A. Barreca, The European Emission Trading System and Its Followers: Comparative Analysis and Linking Perspectives (The Netherlands: Springer, 2016). 106 See case Massachusetts v EPA, 549 U.S. 497 (2007). 107 See Order in pending case, West Virginia et al. v EPA et al. (9 February 2016), 577 U.S. 108 Case C-237/07, Dieter Janecek v Freistaat Bayern (Jacenek case), Judgment of 25 July 2008, para. 42. 109 Case C-404/13, ClientEarth v The Secretary of State for the Environment, Food and Rural Affairs, Judgment of 19 November 2014, para. 56.

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416 massimiliano montini The role of the courts in the United States and the EU can be contrasted with the much more modest role of Chinese courts in the area of air pollution. One possible explanation is the potential influence of local governments on courts.110 The new APPCL does not provide for the possibility of citizen suits relating to air pollution. Hence, the only applicable provision remain the general provisions contained in Chapter V of the 2014 Environmental Protection Law.111 However, it must be underscored that the number of cases filed with Chinese courts on environmental matters, with a particular regard to air pollution claims, is steadily growing. According to statistics collected by Friends of Nature, around one-fifth of the environmental public interest litigation cases filed in 2015 involved air pollution, with most targeting fixed source pollution.112 Following some successful verdicts or mediations in these cases, more air pollution cases have been filed in 2016. These include cases filed against automobile emitters (e.g. CBCGDF v Volkswagen, Friends of Nature v Hyundai) as well as point-source emitters. These cases have targeted air pollutants such as sulphur dioxide, nitrogen dioxide, and dust.113

19.5 Conclusion Air pollution is not a stand-alone environmental matter but is strongly related to public health, energy, and climate change issues. In fact, with regard to health issues, as recognized in recent policy statements by the World Health Organization (WHO) and the World Environment Assembly,114 ‘air pollution contributes to 7 million premature deaths each year globally, a burden of disease that, by now, may exceed the burdens of malaria, tuberculosis and AIDS combined’.115 Air pollution is also closely related to energy and climate change issues, insofar as the main substances which are responsible for the deterioration of air quality are related to combustion processes (connected mostly with transport, electricity, and heating) and largely depend on the combustion of fossil fuels, which are the main cause for climate change. Therefore, the success of tackling air pollution depends to a considerable extent upon the search for new and cleaner ways of providing transportation, electricity, and heat. 110 See O. R. Young et al., ‘Institutionalized governance Processes: Comparing Environmental Problem Solving in China and the United States’ (2015) 31 Global Environmental Change 163–73. 111 See in particular Art. 58 Environmental Protection Law. See Y. Lin and J. Tuholske, ‘Field Notes from the Far East: China’s New Public Interest Environmental Protection Law in Action’ (2015) 45 Environmental Law Review 10855. 112 See D. Whitehead and D. de Boer, ‘Opinion: The future of public interest litigation in China’ (2016) China Dialogue, available at: https://www.chinadialogue.net/article/show/single/en/9356-Opinion-Thefuture-of-public-interest-litigation-in-China. 113 See https://www.chinadialogue.net/article/show/single/en/7790-China-court-to-hear-3-m-yuanair-pollution-lawsuit; https://www.chinadialogue.net/article/show/single/en/9356-Opinion-The-futureof-public-interest-litigation-in-China. 114 See for instance WHO, ‘Health and the Environment: Addressing the Health Impact of Air Pollution’ (Resolution WHA68.8, 26 May 2015); UNEA Resolution, ‘Strengthening the Role of the United Nations Environment Programme in Promoting Air Quality’ (UNEP/EA.1/10, 2 September 2014). 115 UNEA Resolution, ‘Strengthening the Role of the United Nations Environment Programme in Promoting Air Quality, § 1/7.

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atmospheric pollution 417 Moreover, the problem of air pollution has been sometimes addressed with reference to point sources as the key strategy with ambient air quality considerations as a complementary approach. This is demonstrated by the frequent difficulty to draw up effective ambient air quality plans and by the shortcomings in their enforcement. In order to overcome partial approaches to the problem, in this writer’s opinion, air pollution policy and legislation should move towards a more holistic regulatory approach. While tackling air pollution may be easily recognized as a pressing need in the dusty skies of Beijing, the same urgency might not be so evident in the apparently clear skies of Los Angeles, London, or Milan. Yet, clear skies do not necessarily mean clean air.

19.6 Acknowledgements The author wishes to thank Ludwig Kramer (University College London) for his comments on the EU model, Chung-Han Yang (C-EENRG, University of Cambridge) for his research support and suggestions on the Chinese model and Nick Bryner (UCLA School of Law) for his comments and suggestions on the US model.

19.7 Select Bibliography Borghesi, S., M. Montini, and A. Barreca, The European Emission Trading System and Its Followers: Comparative Analysis and Linking Perspectives (The Netherlands: Springer, 2016). Byrne, A., ‘The 1979 Convention on Long-Range Transboundary Air Pollution: Assessing its Effectiveness as a Multilateral Environmental Regime after 35 Years’ (2015) 4 Transnational Environmental Law 37–67. Feng, L. and W. Liao, ‘Legislation, Plans, and Policies for Prevention and Control of Air Pollution in China: Achievements, Challenges, and Improvements’ (2016) 112 Journal of Cleaner Production 1549–58. Glicksman, R. L. and J. A. Wentz, ‘Debunking Revisionist Understandings of Environmental Cooperative Federalism: Collective Action Responses to Air Pollution’ in K. Robbins (ed.), The Law and Policy of Environmental Federalism. A Comparative Analysis. A Comparative Analysis (Cheltenham: Edward Elgar, 2015), 3–27. Kostka, G., ‘Environmental Protection Bureau Leadership at the Provincial Level in China: Examining Diverging Career Backgrounds and Appointment Patterns’ (2013) 15 Journal of Environmental Policy & Planning 41–63. Kramer, L., EU Environmental Law (London: Sweet & Maxwell, 2015). Li, D., ‘The Latest Revision on Atmospheric Pollution Prevention and Control Law: To Breathe Freely Under the Dome’ (2016) Tsinghua University China Law Review (13 November, China Law, available at: http://www.tsinghuachinalawreview.org. Lin, Y. and J. Tuholske, ‘Field Notes from the Far East: China’s New Public Interest Environmental Protection Law in Action’ (2015) 45 Environmental Law Review 10855. Lode, B., P. Schoenberger, and P. Toussaint, ‘Clean Air for All by 2030? Air Quality in the 2030 Agenda and in International Law’ (2016) 25 Review of European, Comparative and International Environmental Law (RECIEL) 27–38. Percival, R. V., Against All Odds: How America’s Century-Old Quest for Clean Air May Spur a New Era of Global Environmental Cooperation (Salt Lake City: University of Utah Press, 2016). Rowlands, I. H., ‘Atmosphere and Outer Space’ in D. Bodansky, J. Brunnée, and E. Hey (eds.), The Oxford Handbook of International Environmental Law (Oxford: Oxford University Press, 2008), 315–36.

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chapter 20

En v ironm en ta l R egu l ation of Fr esh water Dan Tarlock

20.1 Overview

419

20.2 Water Pollution Control

422

20.1.1 From Working Rivers to Rivers that Work 20.1.2 The Emergence of the Normative River

20.2.1 Pollution Control Instruments 20.2.2 The Structure of Regulatory Regimes 20.2.2.1 Introduction 20.2.2.2 What is Pollution? 20.2.2.3 Discharge Categories 20.2.3 National Versus International Regulation of Waste Stream Discharges: Minimal International Law Constraints on National Prerogative 20.2.4 Reduction of Effluent Discharges 20.2.4.1 Introduction 20.2.4.2 Water Quality Standards 20.2.4.3 Effluent Limitations 20.2.4.4 The Use of Economic Instruments 20.2.4.5 Judicial Actions

20.3 The Recognition of Environmental Flows

20.3.1 Recognition Options 20.3.2 The Growing Recognition of Environmental Flows in National and International Law 20.3.2.1 Introduction 20.3.2.2 Water Reserves 20.3.2.3 Judicial and Administrative Reallocation 20.3.3 Reservoir Operation or Reoperation 20.3.4 The Principle of Equitable and Reasonable Utilization

419 420 422 422 422 423 424 424 425 425 425 426 426 427

428 428

429 429 429 431 431 432

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Environmental Regulation of Freshwater 419 20.4 The Protection of Wetlands

20.4.1 Introduction 20.4.2 The Ramsar Convention System in Publicly Owned Land 20.4.3 The Protection of Wetlands Located on Privately-Owned Land

432 432 433 435

20.5 Trends in the Environmental Regulation of Freshwater

436

20.6 Select Bibliography

437

20.1 Overview 20.1.1 From Working Rivers to Rivers that Work The industrial revolution led to two unsustainable uses of fresh water that reached their apogee in the first half of the twentieth century. First, rivers were seen as examples of imperfect nature which needed to be improved by human intervention in form of dams, reservoirs, hydroelectric power plants, river re-alignments, fills, and extensive diversions for human consumption.1 Second, river flows and lake levels were primarily dedicated to the ‘natural’ reduction of the harmful impacts of the untreated discharges of municipal and industrial wastes from rapidly growing cities and factories. Applicable legal pollution control regimes were premised on the assumption that flowing water could break down wastes through dilution and gradually restore the primary indicator of pollution, that is, depleted oxygen levels.2 These attitudes underwent a gradual change in the twentieth century, and by mid-century, the use of rivers and lakes to dilute untreated pollution was recognized as a tragedy of the commons that needed to be stopped. At the same time, the benefits of free-flowing rivers for recreation and aesthetic enjoyment gained increasing public and legislative support. Starting in the 1960s, the rise of the environmental movement made adoption of effective legal instruments to reduce water pollution a political priority in developed and then, to a lesser extent, in developing countries. In the United States, the early preservation movement, which focused on withdrawing the wonders of nature from human exploitation, led to the passage of legislation in 1968 which protected many of the nation’s free-flowing rivers from dams and diversions.3 Similar but weaker systems exist in Canada,4 Finland,5 and 1 National Research Council, U.S. Army Corps of Engineers: Water Resource Planning: A New Opportunity for Service (Washington, D.C.: The National Academies Press, 2004), 34–41. 2 J. Bendickson, The Culture of Flushing: A Social and Legal History of Sewage 169 (Vancouver: UBC Press, 2007). 3 The Wild and Scenic Rivers Act of 1968, 16 United States Code §§ 1271–1287. 4 Canada Heritage Rivers Program is a cooperative effort between the provinces and the federal government. The nomination of the rivers is voluntary at both levels of government. See http://www. thecanadianencyclopedia.ca/en/article/canadian-heritage-rivers-system/. 5 A. Haapanen, ‘Nature Protection in Finland’ in A. Kiss and D. Shelton (eds.), Manual of European Environmental Law (Cambridge: Cambridge University Press, 2nd edn. 1997), 228–30, at 229.

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420 dan tarlock Sweden. US federal water pollution control legislation followed in 19726 and along with similar legislation in Germany and Great Britain7 became the dominant model of water pollution control regimes.

20.1.2 The Emergence of the Normative River Ultimately, the incorporation of the earlier conservation-preservation movement into the modern environmental movement produced a new and radical view of rivers and lakes and associated wetland areas and flood plains. Rivers and lakes are now recognized as both sources of wonder and functioning aquatic ecosystems.8 These natural ecosystem functions such as flood retention, pollution filtering, and fish and wildlife habitat help maintain biological diversity. These functions have also been partially recast as ecosystem services. Ecosystem services are functions of rivers and lakes that provide monetizable benefits to both humans and flora and fauna.9 The ecosystem services construct is an effort to curb the practice of ignoring these values in public and private decisions about the use of water. By attaching a monetary value to these services, they are harder to ignore. This emerging view of rivers and lakes is captured in the construct ‘normative river’.10 The ‘environmental’ view of rivers has led to two fundamental ideas that have only been partially incorporated, but incompletely realized, into the legal systems of both developed and developing countries. The first idea is that the discharge of confined and diffuse pollutants should be minimized through the imposition of technology-based standards that require the treatment of waste prior to discharge and better land management practices on farms, forests, and other land uses. The second idea second is that we need to conserve functioning aquatic ecosystems through a variety of techniques including withdrawing some rivers and lakes from exploitation, maintaining environmental flows11 and water levels, and halting the destruction of wetlands. At base, the two ideas have the same purpose: the conservation and restoration of ‘healthy’ rivers and lakes that both improve public health and maintain the natural functions of aquatic ecosystems.12 Unfortunately, the integration of these ideas remains incomplete or unrealized in most countries. One reason is that lack of integrated quality and quantity legal regimes. Most legal systems have enacted separate legal regimes to curb pollution and to conserve aquatic ecosystems and associated wetlands 6 The Clean Water Act, 33 United States Code §§ 1251–1387. 7 Pollution Control Act 1974, chapter 40. 8 See A. D. Tarlock, ‘The Transformation of Water’ in K. Hirokawa (ed.), Environmental Law and Contrasting Ideas: A Constructivist Approach (Cambridge: Cambridge University Press, 2014), 248–70. 9 G. Daily (ed.), Nature’s Services: Societal Dependence on Natural Ecosystems (Washington, D.C.: Island Press, 1997, 4th edn. 2012). 10 N. L. Poff et al., ‘The Natural Flow Regime’ (1997) 47 BioScience 769–84. 11 J. Gooch, Protecting Ecological Integrity in Transboundary Waters: An Integrational Approach Towards Implementing Environmental Flows (Lund: Lund University, 2016). 12 The earlier concept of ecosystem health, e.g. R. Constanza, B. Norton, and B. Haskell, Ecosystem Health (Washington D.C.: Island Press, 1992), has been largely supplanted by the construct of ecosystem integrity. See R. E. Kim and K. Bosselman, ‘Ecological Integrity: A Relevant Concept for International Environmental Law in the Anthropocene’ (2014) 25 Yearbook of International Environmental Law 61.

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Environmental Regulation of Freshwater 421 so that the two objectives are not well-integrated. The best example of the legal recognition of the interrelationship between the two objectives is the European Union Water Directive.13 Article 1(a) and (c) of the Directive specify its primary, linked objectives to: (a) preven[t] further deterioration and protect[t] and enhance[e] the status of aquatic ecosystems and, with regard to their water needs, terrestrial ecosystems and wetlands directly depending on the aquatic ecosystems; . . . (c) ai[m] at enhanced protection and improvement of the aquatic environment, inter alia, through specific measures for the progressive reduction of discharges, emissions and losses of priority substances and the cessation or phasing-out of discharges, emissions and losses of the priority hazardous substances.

This chapter surveys the structure of pollution control, aquatic ecosystem conservation, and wetland protection in a representative sample of both developed and developing countries. Environmental protection is largely science-driven. Science has played a major role in identifying the sources of pollution and the threats to human and ecosystem health caused by polluted rivers and lakes. Pollution and ecosystem degradation problems arise in all countries, and thus, there has been pressure in almost all states to adopt a legal regime to control pollution discharges and, to a lesser extent, to conserve aquatic ecosystems and wetlands. Governments range from robust democracies to authoritarian regimes and failing states. Economies range from mature, developed ones to struggling ones. The difference comes less of legal regimes, but in the responses to address the remediation of polluted rivers and lakes and to prevent further degradation. No form of government can afford to ignore the pollution of its watercourses and the destruction of its aquatic ecosystems, but there are major differences in the economic and institutional capacity and the political will to address the problems. From a legal perspective, the differences among governments arise more in the comprehensiveness, implementation, and enforcement of the legal regime, not in the regulatory techniques or basic legal requirements.14 The differences are captured in the staggering amount of water pollution worldwide. A 2010 United Nations Environment Programme report estimates that 80 to 90 per cent of water used for sanitation and industrial processes is returned to rivers and lakes untreated.15 This chapter examines three water conservation regimes: the regulation of waste discharges into streams and lakes (section 20.2); the establishment of minimum or base flows in streams and levels in lakes (section 20.3); and the protection of wetlands connected to surface water bodies from loss through conversion to non-wetland cultivated or developed land (section 20.4). Water management remains primarily a national function. International law has traditionally played no role in domestic law, except to constrain the unreasonable use, primarily pollution, of transboundary rivers. The post-1972 rise of international environmental 13 Directive of the European Parliament and the Council Establishing a Framework for Community Action in the Field of Water Policy, Directive 2000/60, OJL 327 (22 December 2000). 14 B. V. R. McAllister and R. Kagan, ‘Reorienting Regulation: Pollution Enforcement in Industrializing Countries’ (2010) 32 Law & Policy 1, available at: http://scholarship.law.berkeley.edu/facpubs/2532. 15 United Nations Environment Programme, UN-HABITAT, and GRID-Arendel, ‘Sick Waters? The Central Role of Waste Water Management’ in E. Corcorar et al. (eds.), Sustainable Development: A Rapid Response (Norway: Birkeland Trykeri AS, 2010).

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422 dan tarlock law is slowly increasing the influence of international law on domestic decisions, and international environmental law’s role increases as pollution control moves from pollution control to wetland protection. The introduction of the polluter-pays principle both justifies and strengthens domestic water pollution control law. International water law’s increasing recognition of environmental flows plays a larger role in the choices available to states on transboundary rivers. Finally, in many countries, wetland conservation has been driven by the 1971 Ramsar Convention.16

20.2 Water Pollution Control 20.2.1 Pollution Control Instruments There are four basic approaches to the control of water pollution. The first technique is the law of torts, to use the common law expression. All legal systems allow individuals who have been damaged by pollutants to sue the source for damages.17 These remedies remain important in all legal systems, but they contain a fundamental defect. Pollution victims must almost always wait for injury to occur before they can seek legal redress. The environmental movement shifted the emphasis to the prevention of pollution through the regulation of the content of effluent waste streams prior to discharge. Water pollution control laws use three basic instruments: (i) the establishment of water quality standards for individual streams and lakes; (ii) discharge licences or permits which generally require mandatory effluent limitations which require pre-discharge waste treatment and are often technology-forcing; and (iii) the use of economic instruments such as the imposition of pollution taxes, charges, emission rights trading, and subsidies.

20.2.2 The Structure of Regulatory Regimes 20.2.2.1 Introduction Modern pollution control regimes share at least five common characteristics: (1) the definition of pollution; (2) the establishment of a water quality improvement target; (3) the division of diverse sources or classes of discharges into different categories based on the type of regulation to which they are subject; (4) the adoption of progressive technology-forcing controls to reduce the harmful chemical components of effluent discharges into surface bodies and aquifers; and (5) the creation of an effective enforcement regime.18 All these elements are important, but this chapter will concentrate on the control of discharges through technology-forcing permits and other means. A stringent licensing scheme is a necessary condition for the effective reduction of pollutants. Clear waste discharge standards 16 Convention on Wetlands of International Importance especially as Waterfowl Habitat, 2 February 1971, 996 UNTS 245. 17 See the contributions in this volume by M. Hinteregger and D. Howarth. 18 R. Adler, ‘Laws Governing Freshwater and Groundwater Pollution’ in A. Tarlock and J. Dernbach (eds.), Environmental Laws and Their Enforcement (Oxford: Eoloss Publishers Co., 2009), 209–27.

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Environmental Regulation of Freshwater 423 deter illegal discharges and support effective enforcement regimes by allowing the collection of objective evidence of permit violations.

20.2.2.2 What is Pollution? There is no universal definition of water pollution because pollution is a scientific, political, and economic construct. Water pollution can be loosely defined as the contamination of water chemicals and foreign substances that are harmful to humans, plants, and animals. The US Clean Water Act defines pollution broadly as ‘the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water’.19 In contrast, the 2008 Law of the People’s Republic of China on the Prevention and Control of Water Pollution has eleven specific prohibited discharges.20 Not all pollutants, however, may constitute controlled pollution as legislation may exclude certain discharges because an industry was powerful enough to convince a legislature to do so. General definitions are important, but the real definition in many legal systems is an unlicensed discharge.21 This allows administrators to balance four perspectives in the decision to issue a licence. Thus, the licence conditions become the operative definition of pollution. The first perspective is the social objective or general goal of pollution reduction. The US Clean Water Act’s goal is the achievement of ‘fishable and swimmable waters’. The EU Water Framework Directive goes further and requires that all water bodies achieve ‘good ecological status’. The second perspective is the scientific: what are the components of the waste stream and how do they impact the quality of the receiving water and human health and water use? Mongolia’s integrated water resources law explicitly adopts this definition. Pollution is defined as ‘change of natural composition of water and deterioration of water quality as direct and indirect consequence of human activities’.22 The third perspective is the availability and cost of reliable technology to achieve the desired effluent reduction level. The fourth and final perspective is the cost-benefit analysis, often very crude, of the target reduction level. Pollution reduction can be analogized to hand washing a woolen sweater. After the garment is rinsed, it must be wrung out by hand. The first few twists yield large amounts of water, but the amount of water diminishes with each twist. Similarly, the famous pollution curve teaches that the first effluent reductions yield large benefits in excess of the costs but as one goes up the curve the benefits decrease and the costs increase.23 The marginal benefits of additional reduction do not always have to exceed the costs, but the total cost of reduction must at least be manageable by the discharger. For example, the EU Water Framework Directive requires that all waterbodies achieve ‘good ecological status’

19 33 U.S.C. § 1362(19). 20 Articles 29–39. 21 The oil and gas industry was able to exempt water, gas, or other material which is injected into a well to facilitate production of oil or gas ‘if such State determines that such injection or disposal will not result in the degradation of ground or surface water resources’. 43 U/S/C. § 15801. 22 Law of Mongolia on Water 3.1.19 (2012). 23 This follows from the concept of marginal cost in welfare economics. R. McKitrick, ‘Marginal Abatement Costs’ in S. Durlauf and L. Blume (eds.), The New Palgrave Dictionary of Economics (Palgrave Macmillan, Online edn. 2015); The New Palgrave Dictionary of Economics (Palgrave Macmillan, Online edn. 27 January 2017), available at: http://www.dictionaryofeconomics.com/article?id=pde2015_ M000432; doi:10.1057/9780230226203.3937.

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424 dan tarlock but Heavily Modified Water Bodies that do not meet this target may be designated through a cost-benefit process.24

20.2.2.3 Discharge Categories Regimes also divide pollutants into different classes. Categorization of pollutants reflects the fact that pollutants enter watercourses from two basic sources, by direct municipal or industrial waste discharges into rivers and lakes or as run-off from a variety of land use practices, such as farming and forestry, which contribute to pollution through run-off which contains fertilizers, pesticides, and sediment. This rough distinction between concentrated and diffuse pollution runs through many water pollution regulatory regimes because the former can be controlled by technology but the latter is less amenable to an engineering solution. Diffuse pollution control requires fundamental changes in the way that many land uses, especially agriculture, construction, and forestry, are practised.25 Diffuse pollution control regulation lags behind the regulation of concentrated sources, even in Europe. Only a few countries have enacted legislation to reduce phosphorous-based fertilizer applications.26 In contrast, throughout the world, many industrial facilities and municipalities have now installed the technology necessary to at least treat partially their waste streams before discharging them into watercourses. The other common division is conventional versus toxic pollutants. Toxic pollutants pose the greatest long-term risks and are often subject to stringent technology-forcing standards to reduce discharges to as close to zero as possible.

20.2.3 National Versus International Regulation of Waste Stream Discharges: Minimal International Law Constraints on National Prerogative States have great discretion to adopt pollution control regimes and determine the level of implementation. Thus, water pollution control is done at both the national level and subnational level in both central and federal regimes. There is no general international law of water pollution control except for transboundary pollution.27 The major exception is the European Union (EU). Member States must conform their water pollution laws to the 2000 Water Directive.28 There are two aspects of international law that put pressure on states to improve their control of water pollution. The first is the polluter-pays principle, 24 N. Hanley and A. Black, ‘Cost-Benefit Analysis and the Water Framework in Scotland (2006) 2 Integrated Environmental Assessment and Management 156–65. 25 H. Goemann et al., ‘Management of Regional German River Catchments (REFFLUD)- General Conitions and Policy Options for Diffuse Pollution by Agriculture of the River Rhine and Ems’ (Diffuse Pollution Conference Dubin, 2003), available at: http://www.ucd.ie/dipcon/docs/theme09/ theme09_06.PDF. 26 F. Amery and O. F. Schoumans, ‘Agricultural Phosphorus Legislation in Europe’ (2014) Merelbeke, ILVO 45. 27 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. 28 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, OJ L 327, 1ff.

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Environmental Regulation of Freshwater 425 discussed in section 20.2.4.4, and the second are international goals, particularly the Millennium Development Goals (MDGs), adopted by 189 nations in 2000,29 and the wider Sustainable Development Goals (SDGs), adopted in 2015 as part of the 2030 Agenda for Sustainable Development.30 SDG 6.3 sets the following target: By 2030, improve water quality by reducing pollution, eliminating dumping and minimizing release of hazardous chemicals and materials, halving the proportion of untreated wastewater and increasing recycling and safe reuse globally.

A global monitoring initiative, Integrated Monitoring of Water and Sanitation Related SDG targets, GEMI, was launched in 2015. States are responsible for implementing the goals, but they must monitor and report their progress to a newly established UN High Level Political Forum for Sustainable Development. One of the many likely bi-products is the wide distribution of information about the best practices to meet the goals and targets, which may push states to more uniform and stringent pollution reduction strategies.

20.2.4 Reduction of Effluent Discharges 20.2.4.1 Introduction There are four basic ways of controlling concentrated discharges: (1) water quality standards, (2) effluent discharge licences, (3) economic instruments, charges, taxes, tradable licences, or subsidies, and (4) judicial actions by the victims of pollution. The first is the oldest regulatory technique. The second is considered the most effective control instrument because it is easiest to enforce. The third instrument has been advocated by economists as a more efficient alternative to command and control regulation. The fourth is, historically, the oldest pollution control instrument. In developed countries, judicial nuisance or abuse of right actions serve as a back-stop to regulation or have been preempted. In developing countries, they continue to serve a more important function.

20.2.4.2 Water Quality Standards Water quality standards basically zone a stream or lake based on its historic or desired use and set quality parameters such as dissolved oxygen, heat, and turbidity. This technique was the first regulatory pollution technique and is still widely used as a baseline of a river or lake’s desired quality. The standards approach places the responsibility on the discharger not to violate the standards. However, sole reliance on water quality standards suffers from a crucial defect, namely establishing causality. Water quality standards are an important measure of the desired ‘health’ of a river or aquifer, but they discourage compliance. This is especially true for toxic or hazardous pollutants. The water quality standards approach places the responsibility on the discharger not to violate the standards, but such standards

29 Millennium Declaration’, 13 September 2000, UN Doc. A/RES/55/2. 30 Resolution 70/1, ‘Transforming our World: The 2030 Agenda for Sustainable Development’, 21 October 2015, UN Doc. A/RES/70/1.

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426 dan tarlock are difficult to enforce because it is often difficult to find a causal link between a particular discharge and a standard violation.

20.2.4.3 Effluent Limitations To cure the enforcement problem, developed regimes have supplemented water quality standards by the second method, effluent licences. A regulatory agency decides the components of an effluent discharge consistent with water quality standards. Early statutes such as the US Clean Water Act have retained water quality standards. However, the focus has primarily been on improving the quality of waste stream discharges through technology-forcing effluent limitations. Other countries such as Brazil have continued to zone streams by use,31 even as they have adopted permit systems. As a result, the integration between the two strategies remains weak.32 The US Clean Water Act has set technology-based limitations for a wide variety of effluent streams and forced many discharges to upgrade treatment technologies, and this model has been widely followed in developed and developing countries. For example section 7a of the German Water Pollution Control Act provides that permits issued by the relevant water authorities ‘may only be granted if the pollutant load of the waste water is kept as low as possible while maintaining the procedures according to the state-of-the-art’.33 Other developed countries which require a discharge permit include Italy,34 Poland,35 Spain,36 and Turkey.37 Japan has effluent standards but they are applied to discharge sources on a case by case basis.38 Permit requirements can also be found in many developing countries including India.39 China adopted its first water pollution control law in 1984 but did not add a permit requirement for industrial and municipal discharges until 2008.40

20.2.4.4 The Use of Economic Instruments The third technique is to set a cap of allowable pollutants and to tax or charge discharges based on their environmental impact. This technique led to a widely supported but not always followed international environmental law principle: the polluter-pays principle.41 31 Federal Law 9,433/1997 and CONAMA Resolution 357/2005. 32 L. Vega and A. Magrini, ‘A Cross-Section Analysis of Brazil’s Water Pollution Control Regulation: Suggestions Based on USA Regulation 8’ (2013) Journal Sustainable Development Planning 537–48. 33 Federal Water Act [Wasserhasuhaltsgesetz] § 7. 34 Legislative Decree 152/2006. 35 The Water Law, 18 July 2001 (Ustawa z dnia 18 lipca 2001 r.—Prawo wodne). 36 Consolidated Law on Water, Royal Legislative Decree 1/2001. 37 Turkey Law on the Environment, No. 2873 and Bylaw 19919 (2008). 38 M. Okada and S. A. Peterson, Water Pollution Control Policy and Management: The Japanese Experience (Japan: Gyosei, 2000). 39 The Water (Prevention and Control of Pollution) Act of 1974, § 25. 40 Article 20 Water Pollution and Prevention Control Law 2008. The development of an effective pollution control law in China is complicated by the power of regional and local authorities to prioritize economic growth over pollution prevention. See L. Hong, M. A. Livermore, and C. Wenner, (2011) Cornell International Law Journal 350–83. 41 Imperial Oil Ltd v Quebec, 2003 S.C.C. 38, adopted the Principle 16 of the 1992 Rio Declaration on Environment and development, UN Doc. A/Conf. 151/15/Rev. 1 (1992), as a principle of Canadian law. See, generally, P. Schwartz, ‘The Polluter-pays Principle’ in J. E. Viñuales (ed.), The Rio Declaration on Environment and Development. A Commentary (Oxford: Oxford University Press, 2015), 429–50.

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Environmental Regulation of Freshwater 427 Germany was one of the first countries to adopt the polluter-pays principle and the federal government to establish pollution charges.42 Charges are based on the economic principle that charges should be set at the level that minimizes the social costs of the discharge. This principle rests on two further assumptions: (1) states are indifferent to continuing, but fully internalized, pollution or higher quality water and (2) the costs of pollution can be fully assessed and applied to river and lake restoration. This second assumption does not hold and pollution charges tend to be lower than the social cost of the discharge. The logical extension of the economic theory of pollution control is a cap-and-trade mechanism. The state sets the level of allowable pollutants and dischargers who reduce their discharges below the cap are given credits which can be sold to dischargers who exceed the cap. Cap-and-trade mechanisms have achieved some success in controlling air pollution, including greenhouse gas (GHG) emissions, in Europe and the United States.43 It is used less frequently for water pollution because of the fear that it will create ‘pollution hot spots’. However, programmes exist in Australia, Europe, New Zealand, and the United States.44 Australia’s salinity cap-and-trade mechanism in the Hunter Valley of New South Wales has improved the amount of fresh water available for irrigation.45

20.2.4.5 Judicial Actions Many countries still have more general pollution control legislation, and thus judicial actions by the victims of pollution can play an important role in curbing harmful discharges. All legal systems have a tort action available to those damaged by pollution.46 Modern water pollution control developed because the private and public common and civil law remedies for water pollution which injured persons or property were judged inadequate to prevent systematic degradation. Post-hoc private or public remedies still exist, but more comprehensive regulatory regimes have become the main response to water pollution. Nonetheless, judicial actions remain the frontline remedy in many legal systems and/or serve as a check on the adequacy of regulatory regimes. For example, they can address new sources of pollution such as the introduction of non-native species into an aquatic ecosystem or instances where the enactment and enforcement of a permit fail to remedy a substantial pollution problem. Indeed, statutes providing for a permit system often depend upon public or private common law remedies for enforcement.47 42 Act Pertaining to Charges Levied for Discharging Wastewater into Waters (Wastewater Ordinance— AbwV) in the version promulgated on 18 January 2005 (Federal Legal Gazette I, 114), amended on 31 July 2009 (BGBl. I, 2585). See M. Reinhardt, ‘Introduction and Framework of the German and European Water Law’ 20–1, available at: http://www.skint-hamburg.de/Download/seminar-international-waterlaw/03_Seuser_Water_Law_Handreichung. 43 See the contributions in this volume by M. Gerrard and J. Gundlach, and by S. Bogojevic. 44 J. Shortle, ‘Economic and Environmental Markets: Lessons from Water-Quality Trading’ (2013) 42 Agriculture and Economics Review 57–74. 45 The tenth review of the programme can be found at: http://www.epa.nsw.gov.au/licensing/hrsts/ regreview.htm. 46 See the contributions in this volume by M. Hinteregger and D. Howarth. 47 Minister of Water Affairs and Forestry v Stilfontein Gold Mining Company and Others (7655/55,7655/55) [2006] ZAGPHC 47 (15 May 2006). See B. R. Nkosi, and K. O. Odeku, ‘Analysis of Water Pollution Control Law in South Africa’ (2014) 5 Mediterranean Journal of Social Sciences 2572–82. The South African Water Pollution Control law provides that ‘an owner of land, a person in control of land or a person who occupies or use the land on which an activity or process is, or was performed or undertaken

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428 dan tarlock

20.3 The recognition of environmental flows 20.3.1 Recognition Options In addition to limiting waste discharges, one of the most significant contributions of the environmental movement has been to reverse the view that rivers were imperfect examples of nature and needed to be improved by dams, levees, and channelization.48 We now recognize the benefits of environmental flows on both free-flowing, undeveloped rivers and on developed or regulated rivers.49 Initially, nations concentrated on protecting existing free-flowing rivers, but since many of the world’s major rivers are developed by dams and diversions, nations now recognize the need to set environmental flows on these rivers as well. The objectives of the flows vary considerably from the establishment of minimum flows for sport fisheries to flows for the maintenance of the maximum possible aquatic biodiversity.50 For undeveloped rivers, the primary methods of establishing environmental flows are (1) the creation of river protection system that prevents future dams and diversions51 or (2) ad hoc political52 or judicial decisions53 preventing a new dam or diversion. The latter are rare because courts generally defer to executive or legislative decisions to construct a project.54 On developed or regulated rivers, the primary methods of implementing these flows are (1) the prevention of dams and other forms of development on existing free-flowing rivers, (2) the imposition of abstraction caps on partially developed rivers, (3) the recognition of in situ water entitlements, (4) the reoperation of existing dams and diversions, and (5) the restoration of regulated, altered rivers.55 The adoption of environmental flows is almost exclusively a national function, but there is a growing body of environmental flow protection in international water law.

as any other situation exists, which caused, or is likely to cause pollution of a water resource must take all reasonable measures to prevent any such pollution from occurring, continuing or recurring by virtue of Section 19(1)’. 48 Tarlock, The Transformation of Water’. 49 See A. Arthington, Environmental Flows (Berkeley: University of California Press, 2012). 50 J. O’Keeffe and T. LaQuesne, Keeping Rivers Alive: A Primer on Environmental Flows (Washington D.C.: World Wildlife Federation, 2009). 51 See Notes 3–5, supra. 52 In 2014, the Chilean government cancelled a five dam project in Patagonia. See https://ejatlas.org/ conflict/hidroaysen-hydroelectric-project-chile. 53 e.g. Commonwealth v Tasmania (Tasmanian Dam case) 158 CLR 1 (1983); R. v Secretary of State for Foreign and Commonwealth Affairs Ex parte World Development Movement Ltd 1 W.L.R. 386 (High Court of England 1994). 54 e.g. Narmada Bachao Andolan v Union of India, AIR (2000) SC 3751. 55 Compare A. R. Ladson and B. I. Finlayson, ‘Specifying the Environmental Right to Water: Lessons from Victoria’ (2004) 23 Dialogue 19–38, who identify three strategies: (1) an equivalent right model that gives equal right to consumptive and environmental uses, (2) a rules model that establishes minimum flows, and (3) a what’s left over model.

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Environmental Regulation of Freshwater 429

20.3.2 The Growing Recognition of Environmental Flows in National and International Law 20.3.2.1 Introduction Environmental flows are in situ versus rather than ex situ uses and the former had little recognition in water allocation law, but this is slowly changing. The common law of riparian rights and civil law initially recognized almost exclusively in situ rights to promote mill development.56 However, the industrial revolution and the spread of irrigation economies in the Americas, Africa, Asia, and Australia shifted the focus to the consumptive or ex situ uses of water. Thus, the common and civil law replaced rules that prohibited interference with the natural flow or current of a stream with rules of reason which allowed streams to be dammed and diverted. In many jurisdictions, background rules were supplemented with administratively managed permit systems which authorized extensive extractions. Environmental flows were superimposed over these systems and they are often subordinate to prior rights. When the environmental movement revived the idea of environmental flows, the holders of consumptive rights argued that leaving water in place to flow to the river’s mouth was not a ‘use’ of water because it was wasteful and did not promote the public welfare. Thus, no entitlements could be obtained for this purpose. The environmental movement changed this thinking and led to the legal recognition of environmental flows to conserve and restore aquatic ecosystems. Of the different instruments mentioned in the previous section, most states have focused on the second and third options, namely the imposition of abstraction caps on partially developed rivers or the recognition of in situ water entitlements. There are four commonly used techniques to achieve these objectives: (1) a state can use its police power to establish a water reserve which sets a ceiling on the water available for abstraction or simply cap diversions; (2) in situ private or public use entitlements to instream flows can be recognized; (3) a state’s general administrative licensing process can be used to deny new licences or modify existing ones because the use would compromise public environmental and other values; and (4) the public trust doctrine can be used by courts and administrative agencies to reallocate existing entitlements to provide instream flows or to prevent new uses which are inconsistent with the trust.

20.3.2.2 Water Reserves Water reserves either set a minimum amount of flow, seasonally adjusted, or limit the amount of water that can be taken from a stream to protect the aquatic ecosystem. Many countries have established minimum environmental flows which serve as a cap on abstractions. The most comprehensive in situ reserve is South Africa’s post-Apartheid Water Act.57 The Act requires the creation of environmental reserves to ‘protect aquatic ecosystems in 56 Some American legal histories emphasize that role that pressures for economic development played in the evolution of the common law of riparian rights, M. Horowitz, The Transformation of American Law 1780–1860 (Cambridge M.A.: Harvard University Press, 1977), while others dispute the thesis. J. Getzler, A History of Water Rights at Common Law (New Haven: Yale University Press 2004). 57 National Water Act 36 of 1998 (S. Afr.). For a brief history of South African water law see M. Muller, ‘Lessons from South Africa on the Management and Development of Water Resources for Inclusive and

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430 dan tarlock order to secure ecologically sustainable development and use of the relevant water resource’.58 The South African model has been followed in other countries, such as Kenya.59 Under a reserve system, consumptive abstractions may have to be curtailed to maintain the reserve during a drought. However, in most countries, the practical and constitutional implications of curtailment to protect environmental flows have yet to be explored. Other countries have adopted less explicit reserves through their water planning process. France manages its water resources on the river basin and sub-basin level through complex planning and stakeholder processes that ultimately set abstraction caps.60 Sub-basin authorities must development management plans which include ‘minimum environmental flows’. These are defined based on a statistical standard as the monthly flow with a probability of exceedance of one in five. Other minimum flow requirements relating to freshwater include ‘the minimum biological flow’ and the ‘reserved flow’, defined based on observations of ecological needs.61 China has established a form of reserve system with its 2010 ‘three red lines’ policy. In brief, allocations will be set in China’s basins to reflect water use including aquatic ecosystem conservation, water use efficiency and water pollution. The net effect could be that ‘the “three red lines” policy would limit total national water consumption to less than 700 billion cubic meters per year, amounting to approximately three-quarters of China’s total annual exploitable freshwater resources.’62 Australia has implemented an ambitious aquatic ecosystem protection scheme in its major basin, the Murray-Darling, and the diversion cap is widely regarded as the most complete model of ecosystem protection. The basin flows through four federal states and the downstream state, South Australia, faces saline intrusion from upstream agricultural withdrawals. Initially, a federal-state agreement placed a cap on water withdrawals. After the federal states failed to implement it fully, innovative Commonwealth water legislation was enacted in 2007 which required the Murray–Darling Basin Authority to prepare a strategic plan for the integrated and sustainable management of water resources to manage the Basin’s water resources. This means that private entitlements will have to be curtailed, and to achieve this objective, water trades, the voluntary compensated retirement of rights, and sale of irrigation rights are being used. Thus, in the interest of fairness, Australia has combined subordination with compensation as have other countries such as the United States. The recognition of a water right to a minimum flow is primarily confined to the United States63 and most instream flow rights are restricted to public agencies.64

Sustainable Growth’ (2010), available at: https://ec.europa.eu/europeaid/sites/devco/files/erd-conscadev-researchpapers-muller-20110101_en.pdf. 58 National Water Act 26 of 1998 (S.Afr.) §§ 1xviii(b) and 12–13. 59 Laws of Kenya, Water Act, Chapter 372, § 13. 60 Loi n° 2006–1772 du 30 décembre 2006 sur l’eau et les milieux aquatiques (1). 61 OCED Secretariat, Country Profile, France 3, available at: https://www.oecd.org/france/WaterResources-Allocation-France.pdf. 62 S. Scott Moore, ‘The Politics of Thirst: Managing Water Resources Under Scarcity in the Yellow River Basin, People’s Republic of China’ (Harvard Kennedy Center, Belfer Center for Science and International Affairs Discussion Paper 2013– 14), 18. 63 e.g. State, Department of Parks v Idaho Department of Water Administration, 530 Pacific Reporter 2d 924 (Idaho 1974). 64 Colorado Revised Statutes §37–92–102(3).

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Environmental Regulation of Freshwater 431

20.3.2.3 Judicial and Administrative Reallocation The most controversial method of achieving an environmental flow is to curtail existing consumptive uses and redistribute the water back to a river or lake. The rub is that water right holders can resist redistribution in countries that afford constitutional protection to water rights. Constitutions do not, however, protect entitlement holders against limitations inherent in their property rights. One possible limitation stems from the public trust doctrine. This is an American doctrine which was imported from England after the American Revolution. The doctrine has its roots in the Roman and English common law doctrine whereby navigable or public rivers were subject to a public servitude of navigation.65 A major Supreme Court decision expanded the doctrine into one which limits the power of the state to grant private rights that threaten to destroy the resource and gives the State the power to curtail previously granted rights.66 In a case that has influenced the courts of many countries, the California Supreme Court held the public trust doctrine imposes a continuing duty on water agencies to monitor existing consumptive uses and to decide if they are inconsistent with trust values which include the conservation of aquatic ecosystems.67 The Supreme Court of India recognizes the doctrine68 as do the courts of the Philippines69 and Kenya.70 A leading US water and public trust scholar has suggested that ‘courts in states with ecological and/or evolutionary public trust doctrines could engage in a form of judicial adaptive management by adjusting private and other rights in water resources in response to climate change impacts.’71

20.3.3 Reservoir Operation or Reoperation Most of the world’s major rivers are regulated rivers, and thus the flow is a controlled by storage reservoirs and diversions. There are an increasing number of national and international techniques to require the release of environmental flows from reservoir. On the international level, the Lesotho Highlands Water Treaty has led to the progressive adoption of an environmental flow regime based on adaptive management.72 In the same vein, the lower Mekong Treaty States signed a cooperative agreement in 1995,73 the Preamble of which calls for minimum monthly flows to ‘protect, preserve, enhance and manage the environment and maintenance of the ecological balance exceptional to this river basin’. 65 The leading US Supreme Court case, Martin v Waddell, 41 U.S. 367, 411–412 (1842), relied on Sir Matthew Hale’s treatise De Jure Maris. 66 Ill. Cent. R.R. v Illinois, 146 U.S. 387 (1892). 67 National Audubon Society v Superior Court, 658 P. 2d 709 (1983), US Supreme Court review denied, 463 U.S. 977 (1983). 68 M.C. Mehta v Kamal Nath (1997) 1 S.C.C. 388. 69 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.). 70 Waweru v The Republic (2006) 1 K.L.R. 677, 677 (H.C.K.) (Kenya). 71 R. Craig, ‘Adapting to Climate Change: The Potential Role of State Common Law Public Trust Doctrines’ (2009) 43 Vermont Law Review 781, at 852. 72 Gooch, Protecting Ecological Integrity in Transboundary Waters, at 213–43. 73 Agreement for Cooperation for the Sustainable Development of the Mekong River Basin, 34 ILM 864 (1995).

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432 dan tarlock In 1998, the Mekong River Commission established the minimum flow contributions of all member States.74

20.3.4 The Principle of Equitable and Reasonable Utilization International water law allows states to unilaterally construct dams and divert water from a transboundary river. Classic international water law did not recognize a general right by downstream states to the integrity of a river’s flow.75 However, over time, there was a growing recognition that neighbouring states may have a right to some minimal level of environmental flows when an upstream project impacts a downstream state. The right is based on ‘a combined reading of the principle of equitable utilization, the principle of no significant harm and the obligation to protect ecosystems’.76 These principles are included in the United Nations Convention on the Use of Non-Navigable Watercourses77 and have been recognized as restatements of customary law. In 2013, an arbitral panel held that India could construct a dam on a tributary of the Indus River, but it had a duty to provide minimum environmental flows to downstream Pakistan.78

20.4 The Protection of Wetlands 20.4.1 Introduction Wetlands, which include marshes, fens, peatlands, and marine waters less than six metres deep, are one of Earth’s most important ecosystems. Wetlands protect wildlife habitats, control floods, and filter pollution. Wetlands are a buffer zone between water bodies and dry land. They are distinguished by the presence of water-dependent vegetation and their ability to function depends on both the quantity and the quality of water available to them. They are extremely vulnerable areas because the term wetland is a recent construct. Historically, wetlands were seen as undesirable land features such as swamps, marshes, and bogs which should be drained and filled to eliminate public health hazards and to put the ‘waste land’ to productive uses. Most countries still have laws that encourage wetland drainage79 and the diversion of water for consumptive use which imperils wetlands. Thus, wetlands 74 Gooch, Protecting Ecological Integrity in Transboundary Waters, at 262. 75 Lake Lanoux Arbitration (Spain/France), Award (16 November 1957), RIAA vol. XII, 281ff. 76 Gooch, Protecting Ecological Integrity in Transboundary Waters, at 99. 77 United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, 21 May 1997, 36 ILM 700. 78 See 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). 79 P. Möller and A. Muñoz-Pedreros, ‘Legal Protection Assessment of Different Inland Wetlands in Chile’ (2014) Revista Chilena de Historia Natural 87:23. DOI: 10.1186/s40693-014-0023-1.

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Environmental Regulation of Freshwater 433 continue to face threats from within and outwith a country.80 There are transboundary wetlands, but most wetlands are often located on privately owned land which poses a substantial regulatory challenge. If a regulatory regime prohibits the development of a wetland, the property owner may be able to challenge the regulation as an e xpropriation of private property without compensation.81 Other countries go further. For example, Costa Rica, a leader in wetland preservation, does not permit the regulation of private wetlands.82 Despite the fact that most wetlands are simply in the territory of a sovereign state, the protection of wetlands differs from water pollution control and environmental flows because there is an international regime that encourages states to conserve wetlands. The 1971 Ramsar Convention83 has some 168 parties and has led to the extensive protection of wetlands throughout the world. There are four basic ways to protected wetlands. First, wetlands on publicly owned land can be designated as protected areas. This occurs primarily but not exclusively under the Ramsar Convention. Second, either general or special land use regulations can prevent the alteration of wetlands and mandate their preservation. Third, wetlands provide valuable ecosystem services such as pollution filtering. In recent years, the monetary value of these services has been estimated84 in an effort to find ways to make the beneficiaries of these services pay the land owners who provide them.85 But this instrument remains more t heoretical than applied in practice. Fourth, degraded wetlands can be restored or new ones can even be created.86 The protection of wetlands in privately owned land is much more difficult to achieve.

20.4.2 The Ramsar Convention System in Publicly Owned Land The Ramsar Convention, adapted in 1971, allows parties to designate significant wetlands within their territory. Article 2.2 provides that wetlands should be designated because ‘of 80 N. Davidson, ‘How Much Wetland Has the World Lost? Long-Term and Recent Trends in Global Wetland Area’, CSIRO Publishing, Marine and Freshwater Research (September 2014), 65, 934–42. 81 C. T. Reid and W. Nsoh, ‘Whose Ecosystem is it Anyway? Private and Public Rights under New Approaches to Biodiversity Conservation’ (2014) Journal of Human Rights and the Environment 112—135. See C. Shene and and C. de Klemm, ‘Wetlands, Water, and the Law: Using Law to Advance Wetlands Conservation and Wise Use’ (ICUN Environmental law Center Policy Paper 38, 1999). 82 M. Rojas and B. Aylward, ‘What are we learning from experiences with markets for environmental services in Costa Rica? A review and critique of the literature’ (International Institute for Environment and Development, 2003). 83 Convention on Wetlands of International Importance especially as Waterfowl Habitat, 2 February 1971, 996 UNTS 245. 84 The Millennium Ecosystem Assessment gave wetlands a value of US$15 trillion in 1997. 85 e.g. Global Environmental Facility, ‘GEF Investments on Payment for Ecosystem Services Schemes’ (2014), available at: https://www.thegef.org/sites/default/files/publications/28252nomarks_0.pdf; I. Porras, ‘Fair and Green? Social Impacts of Payments for Environmental Services in Costa Rica’ (December 2010), available at: http://pubs.iied.org/pdfs/15518IIED.pdf. 86 e.g. the restoration of wetlands in the Hortobágy Region of Hungary. See European Commission, Environmental Directorate-General, ‘Life and Europe’s Wetlands: Restoring a Vital Ecosystem’ (Luxembourg: Office for Official Publications of the European Communities 2007), 16–18. See also J. Zedler and S. Kercher, ‘Wetland Resources: Status, Trends, Ecosystem Services, and Restorability’ (2005) 30 Annual Review of Environment and Resources 39–74.

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434 dan tarlock their international significance in terms of ecology, botany, zoology, limnology or hydrology. In the first instance wetlands of international importance to waterfowl at any season should be included.’ The Secretariat has worked to broaden the focus to ecosystem conservation and to integrate the Convention with the Convention on Biological Diversity and the 2008 Millennium Assessment. The Convention’s Wise Use Handbooks87 define the wise use of wetlands as ‘the maintenance of their ecological character, achieved through the implementation of ecosystem approaches, within the context of sustainable development’. By advocating this approach, the Ramsar Convention therefore necessitates that all parties use the ecosystem approach when managing wetlands to account for the linkages and interdependence between wetlands and forests.88 The Convention is basically self-executing, and the two basic duties, designation and protection, fall on host countries. Article 2.3 expressly states that ‘[t]he inclusion of a wetland in the List does not prejudice the exclusive sovereign rights of the Contracting Party in whose territory the wetland is situated’. Inclusion in the list is not subject to the approval of any treaty body. It is a unilateral act by each state party. At least one wetland must be included in the list by each state when it becomes a party to the Convention. A party may of its own volition substitute one wetland for another wetland if the matter rises an ‘urgent national interest’, but the overall area of protected wetlands insofar as possible must not decrease. As of 2015, 2,208 wetland sites wetlands were listed covering some 210 million hectares.89 The Convention has been criticized because it does not impose stringent binding obligations on the parties. However, the Convention has induced widespread participation. The EU has implemented the Convention through the 1979 Birds Directive90 in 1979 and the 1992 Habitats Directive.91 The enforcement mechanisms established at the level of the Convention are weak. However, many countries or sub-national units have enacted legislation to protect Ramsar wetlands.92 There is considerable prestige to the designation of a Ramsar wetland which means that the failure to adequately protect the site may trigger internal and external scrutiny. There is some evidence that placing a site on the Ramsar list leads to efforts by a country to address broader problems in the larger watershed.93 In addition, there is an Advisory Mission process. A party can trigger a Mission request where a Ramsar Site’s ecological character is threatened. Thus, one party which has designated part of a transboundary wetland can trigger the process. The Secretariat has described the benefits of the mission as follows:

87 The Ramsar Convention Secretariat, The Ramsar Handbooks for the Wise Use of Wetlands (Switzerland: Gland, 4rd edn. 2007), 16. 88 See D. Farrier and L. Tucker, ‘Wise Use of Wetlands under the Ramsar Convention: a Challenge for Meaningful Implementation of International Law’ (2000) 12 Journal of Environmental Law 21. 89 Conference of the Parties, ‘The 4th Strategic Plan 2016–2024’, available at: http://www.ramsar.org/ sites/default/files/documents/library/4th_strategic_plan_2016_2024_e.pdf. 90 79/409/EEC. 91 Council Directive 92/43/EEC. 92 http://www.palafittes.org/uploads/media/Volume_I_chapters_5-9.pdf. 93 See J. Verschuuren, ‘The Case of Transboundary Wetlands Under the Ramsar Convention: Keep the Lawyers Out!’ (2008) 19 Colorado Journal of International Environmental Law & Policy 49–127. P. Griffen, ‘The Ramsar Convention: A New Window for Environmental Diplomacy?’ (Institute for Environmental Diplomacy & Security, University of Vermont, 2012).

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Environmental Regulation of Freshwater 435 ‘[i]t enables both developed and developing countries to apply global expertise and advice to the problems and threats that could lead to a loss in ecological character to a wetland.’94 A state’s accession to the Convention can have important domestic legal consequences. The Costa Rica Constitutional Court held that wetlands eligible for protection are not limited to those designated by the state by executive order because this limitation is inconsistent with the purpose of Ramsar.95 Australia has made the most far-reaching use of the Convention. The Australian Constitution does not give the Commonwealth government expressly or implied authority to manage water, including interstate rivers, but the High Court has expanded Commonwealth powers when it adopts an international agreement.96 In 2007, the Commonwealth adopted legislation to develop a Commonwealth protection strategy for the Murray-Darling Basin.97 Section 21 of the Act requires the development of a basin plan consistent with the Commonwealth’s international obligations. This is a clear reference to the Convention, which was relied on by the Commonwealth as a source of authority to regulate water resources.

20.4.3 The Protection of Wetlands Located on Privately-owned Land The protection of wetlands on private property is one the biggest challenges worldwide. A few countries have national permits that cover certain wetlands. These countries include Sweden98 and the United States.99 Other countries have regional oversight. Italy allows for the designation of special landscape protection areas, including wetlands 300 metres from the edge of lakes.100 In other countries, wetlands are protected through general land use regulations. National legislation can require protection plans, but there is often a gap between the preparation of protection plans and the protection of wetlands. The actual decision to protect or destroy is often delegated to local land use control authorities, and municipal governments often permit filling and other forms of development.101 In addition, to the tendency of local governments to permit draining and filling wetlands, in some countries the regulation of privately owned wetlands can be challenged as a de facto expropriation of property. The US Supreme Court102 and lower courts frequently hear challenges to federal and state wetlands regulation. De facto expropriations are

94 http://www.ramsar.org/activity/ramsar-advisory-missions. 95 Prospects for Wetlands Payment of Ecosystem Services in Costa Rica, available at: https://www. law.ufl.edu/_pdf/academics/academic-programs/study-abroad/costa-rica/PES_draft_report.pdf. 96 Commonwealth v Tasmania (1983) 158 CLR 1. 97 The Water Act (2007). See P. Kildea and G. Williams, ‘The Water Act and the Murray Darling Basin’ (2011) 22 Public Law Review 9. 98 Environmental Code of Sweden, Chapter 11, § 13. 99 33 U.S.C. § 403. 100 Decreto Legislativo 42/2004; Art. 134 Codice dei beni culturali e del Paesaggio. 101 V. A. Sebastiá-Fradquet and J.-A. Sanchis, ‘Wetland Planning: Current Problems and Environmental Management Proposals at Supra-Municipal Scale’ (2014) (Spanish Mediterranean Coast) Water 620–41. 102 Palazzolo v Rhode Island, 533 U.S. 606 (2001).

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436 dan tarlock also actionable in the European Court of Human Rights (ECtHR) under the European Convention on Human Rights (ECHR).103

20.5 Trends in the Environmental Regulation of Freshwater Since the mid-twentieth century, the use of rivers and lakes has undergone a paradigm shift from narrow utilitarian use to balanced stewardship for a broader range of uses. This shift is reflected primarily in domestic law, but international environmental law plays an increasingly important function. Rivers were initially devoted to three major uses, waste disposal, human consumption, and energy production. These uses remain essential to human welfare, but we now recognize that the natural functions of rivers provide many previously unappreciated benefits to society. We now appreciate the need to conserve aquatic ecosystem functions because of the benefits that they provide to society by limiting the use of rivers and lakes for waste disposal, establishing environmental flows and preventing the destruction of adjacent wetlands. Prior to the 1970s, the primary legal means of preventing water pollution were law suits by injured land owners and water users. Initally, a few developed countries experimented with setting receiving water quality standards and taxing waste discharges. These techniques were insufficient, and most developed and developing national regimes have supplemented water quality standards by controlling the waste streams discharged into rivers and lakes by effluent licences. Pollution control laws remain largely separate from water allocation laws and thus the conservation of aquatic ecosystems. The latter have been conserved primarily by preventing the development of selected free-flowing rivers and establishing environmental flows on developed ones. A robust international regime, the Ramsar Convention, has led to the extensive protection of publically owned wetlands throughout the world. A few countries also limit development on privately owned wetlands. However, the control of pollution and the protection of aquatic ecosystems and wetlands remains woefully incomplete in both developed and developing countries. To achieve the necessary balanced stewardship of rivers to sustain human and aquatic life, the law must integrate the use of rivers for water disposal with their allocation for both ex situ and in situ uses and the management of adjacent lands. Water balances, adjusted for climate change, must be established in all catchments that limit consumptive entitlements and the discharge of pollutants. An important step towards such balance is the recognition that rivers should have legal status. Most nations have resisted granting legal rights to non-humans such as aquatic ecosystems, but in 2017 New Zealand granted legal status to a river. To settle a dispute between the state and the Maori people over the meaning of the 1840 Treaty of Waitangi, an Act of Parliament granted legal status to the catchment of the Whanganui River,104 which is revered by the Maoris. The Act could be a precedent for the legislative and 103 Sporrong and Lönnroth v Sweden, 23 September 1982, Judgment of the ECtHR, app. no.7151/75; 7152/75. 104 Tupua Awa [Whanganui Claims Settlement Act] (2017).

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Environmental Regulation of Freshwater 437 judicial recognition that watercourses have legal status and ultimately the enactment of integrated water quality and quantity management as well as adjacent land management.

20.6 Select Bibliography Bendidickson, J., The Culture of Flushing: A Social and Legal History of Sewage (Vancouver, B.C.: UBC Press, 2011). Daily, G. (ed.), Nature’s Services: Societal Dependence on Natural Ecosystems (Washington, D.C.: Island Press, 1997, 4th edn. 2012). Delang, C., China’s Water Pollution Problems (Abington: Routledge, 2016). Gooch, J., Protecting Ecological Integrity in Transboundary Waters: An Integrational Approach Towards Implementing Environmental Flows (Lund: Lund University, 2016). Juuti, P., T. Katko, and H. Vuorinen (eds.), Environmental History of Water: Global View of Community Water Supply and Sanitation (London: International Water Association Publishing, 2007). Krämer, L., EU Environmental Law (London: Sweet & Maxwell, 8th edn. 2015). Nassem, M., Environmental Law in India (Alt Alphen an den Rija: Kluwer Law International, 2011). Martinez, M., American Environmentalism: Philosophy, History, and Public Policy (Boca Raton, FL: CRC Press, 2014). Ryan, M. (ed.), The Clean Water Handbook (Chicago: ABA Publishing, 3rd edn. 2011). Shene, C. and C. de Klemm, Wetlands, Water, and the Law: Using Law to Advance Wetlands Conservation and Wise Use (ICUN Environmental law Center Policy Paper 38, 1999).

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chapter 21

L a n d Degr a dation Ben Boer and Ian Hannam

21.1 Overview

439

21.2 Causes and Effects of Land Degradation

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21.3 Legal Responses to Land Degradation

444

21.4 Concluding Remarks

458

21.5 Select Bibliography

459

21.3.1 Global Initiatives 444 21.3.1.1 Introduction 444 21.3.1.2 The UNCCD 445 21.3.1.3 The Convention on Biological Diversity 446 21.3.1.4 The UN Framework Convention on Climate Change 446 21.3.1.5 Land Degradation as a Common Concern of Humankind448 21.3.1.6 IUCN Covenant on Environment and Development 449 21.3.2 Regional Initiatives 449 21.3.3 Strategies and Policies 451 21.3.3.1 The World Soil Charter 2014 451 21.3.3.2 The UN Sustainable Development Goals 2015 and Land Degradation Neutrality 451 21.3.4 National Laws and Policies 453 21.3.4.1 Introduction 453 21.3.4.2 Land Tenure 454 21.3.4.3 Access to Land 455 21.3.4.4 Farming Systems and Land Use 455 21.3.4.5 The Role of Protected Areas 456 21.3.4.6 Physical Planning to Avoid Land Degradation 457

‘A thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise.’ 1 1 A. Leopold, ‘The Land Ethic ’in A Sand County Almanac (Oxford: Oxford University Press, 1989), 224–5.

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land degradation 439

21.1 Overview Land degradation is one of the most complex environmental issues facing national governments and communities worldwide. It is also one of the least understood. Land and its primary constituent element, the soil, form the basic terrestrial foundation of human development and survival, physically sustaining societies around the world through agriculture, grazing, forestry, and the maintenance of water sources. The human links to land and its soils are an inherent part of global and national culture and heritage.2 Soil bodies are large and readily identifiable ecosystems and are the fundamental components of terrestrial biodiversity.3 Until recently, land degradation law was seen as the poor cousin of natural resources and environmental law. However, with some 33 per cent of the world’s arable land being lost to soil erosion or pollution in the last forty years,4 there is now an increasing concentration on the law and policy relating to land degradation and its links to food security and associated human rights. Further, as soils are the second largest reservoir of carbon after the world’s oceans, their importance as natural carbon sinks, as well as by release of carbon to the atmosphere through unsustainable agriculture and grazing practices, means that land degradation is becoming a significant factor in global5 and regional climate change policy.6 Most states do not have adequate legislation to address the broad range of processes involved in land degradation. Particular areas of law directly or indirectly attempt to prevent or control land degradation and to promote sustainable land use. These include soil conservation law, contaminated land law, planning law, protected areas law, forest law, water law, desertification law, biodiversity law, and in some jurisdictions, customary laws relating to Indigenous peoples and local communities. Several global initiatives have been important in establishing international rules which, when transposed to the national level, can be directed towards the control and prevention of land degradation. The most prominent of the multilateral instruments relating to land degradation control in arid, semi-arid, and dry 2 Soil as part of the heritage was recognized for example in debates on the Soil Conservation Act 1938 of New South Wales, Australia: ‘Men who waste land, or who unnecessarily destroy timber, destroy something that is the heritage of the nation, and they should be allowed to do so no longer’, Bill McKell, quoted in T. Bonyhady and T. Griffiths, Prehistory to Politics, John Mulvaney, the Humanities and the Public Intellectual (Melbourne: Melbourne University Press 1996), 159. 3 B.W. Boer and I.D. Hannam, ‘Developing a Global Soil Regime’, Special edition 1 ‘Soil governance’, 2015 International Journal of Rural Law and Policy 1, available at: http://www.austlii.edu.au/au/journals/ IntJlRuralLawP/2015/2.pdf; see also B.W. Boer and I.D. Hannam, ‘Legal Aspects of Sustainable Soils: International and National’ (2003) 12(2) Review of European Community and International Environmental Law 149, at 149. 4 D. Cameron, C. Osborne, C. Horton, and M. Sinclair, ‘A Sustainable Model for Intensive Agriculture’ Grantham Centre Briefing Note (December 2015), 2, available at: http://grantham.sheffield.ac.uk/wpcontent/uploads/2015/12/A4-sustainable-model-intensive-agriculture-spread.pdf. 5 C. Streck and A. Gay, ‘The Role of Soils in International Climate Change Policy’ in H. Ginzky, I. L. Heuser, T. Qin, O. C. Ruppel, and P. Wegerdt (eds.), International Yearbook of Soil Law and Policy 2016 (Cham: Springer 2017), 105. 6 J. Verschuuren, ‘Towards an EU Regulatory Framework for Climate-Smart Agriculture: The Example of Soil Carbon Sequestration’ (2018) Transnational Environmental Law 301.

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440 ben boer and ian hannam sub-humid areas is the United Nations Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa.7 While calls for an international instrument addressing land degradation beyond the realm of desertification have been made since the early 2000s, progress on developing such a regime has been slow.8 On the other hand, several regional treaties contain provisions to control or prevent land degradation. This chapter first paints a broad canvas of land degradation law at international level, sketching the developments of this field in the past few decades, and then delves into legal regimes at regional and national level.

21.2 Causes and Effects of Land Degradation Land degradation is a process in which the state of the biophysical environment is affected by a combination of natural and human-induced processes acting upon the land.9 The more degraded land becomes, the less it can ecologically support. This can cause land degradation to accelerate, as plants and animals that would normally play a part in restoring the soil are unable to survive. Agricultural practices are a common cause of land degradation. Overworking the soil can degrade it, sometimes permanently. A stark example of land degradation can be seen in the infamous 1930s United States Dust Bowl droughts, when large-scale topsoil loss occurred as a result of a combination of intensive agriculture and drought conditions.10 This stimulated the enactment of the first US Farm Bill and subsequent soil conservation legislation.11

7 United Nations Convention to Combat Desertification (UNCCD) 33 ILM 1328 (1994). 8 See B.W. Boer, H. Ginzky, and I. L. Heuser, ‘International Soil Protection Law: History, Concepts, and Latest Developments’ in Ginzky et al., International Yearbook of Soil Law and Policy 2016, at 50; see also Boer and Hannam, ‘Developing a Global Soil Regime’. 9 More specifically, Art. (1(f) UNCCD defines ‘land degradation’ as: ‘. . . the reduction or loss, in arid, semi-arid and dry sub-humid areas, of the biological or economic productivity and complexity of rainfed cropland, irrigated cropland, or range, pasture, forest and woodlands resulting from land uses or from a process or combination of processes, including processes arising from human activities and habitation patterns, such as: (i) soil erosion caused by wind and/or water; (ii) deterioration of the physical, chemical and biological or economic properties of soil; and (iii) long-term loss of natural vegetation’. 10 ‘A Report of the Great Plains Area Drought Committee’, Hopkins Papers, Franklin D. Roosevelt Library, 27 August 1936, available at: https://babel.hathitrust.org/cgi/pt?id=coo.31924000933956; J. N. Gregory, American Exodus: The Dust Bowl Migration and Okie Culture in California (Oxford: Oxford University Press, 1991). 11 J.J. Richardson Jnr. and E. Dooley, ‘United States Soil Degradation’ in Ginzky et al., International Yearbook of Soil Law and Policy 2016, at 411. The Soil Conservation Act 1935 Pub.L. 74–461 established the United States Soil Conservation Service; the Act recognized the ‘wastage of soil and moisture resources on farm, grazing and forest lands . . . is a menace to the national welfare’. ‘This legislation was amended and replaced . . . by the Soil Conservation and Domestic Allotment Act 1936 (Pub. L. 74–461) . . . with the express purpose of encouraging the use of soil resources in such a manner as to preserve and improve

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land degradation 441 On a global scale, accelerated wind and water soil erosion are the principal land egradation processes. Current estimates of the area of degraded land worldwide vary from d 1 billion to 6 billion hectares.12 The critical drivers are seen to be: agriculture and forestry; urbanization; infrastructure development; energy production; and mining and quarrying.13 The UNCCD Global Land Outlook 2017 observes: Direct drivers are either natural (e.g., earthquakes, landslides, drought, floods) or anthropogenic (i.e., human-induced); some of the latter influence what would formerly be thought of as natural climatic events. Human-induced drivers such as deforestation, wetland drainage, overgrazing, unsustainable land use practices, and the expansion of agricultural, industrial, and urban areas (i.e. land use change) continue to be the most significant proximate cause of land degradation.14

The more recent phenomenon of the purchase or lease of productive agricultural lands in poorer countries by richer countries, often known as ‘land-grabbing’ is of increasing concern.15 The practice can undermine sustainable livelihoods and economic development as well as the capacities of societies and individual nations. They can result in degradation of land and contribute to lower levels of human well-being and higher levels of vulnerability, deprivation, and disadvantage. Oguamanam argues that ‘land grabs are not sensitive to the socioecological agency of land in rural communities in developing countries that are targets of land grabbing. In Madagascar, Mozambique, Ethiopia, Uganda, Cambodia, Indonesia, Colombia, Brazil, and elsewhere, land grabs have resulted in the displacement or forced relocation of millions of culturally diverse indigenous and local communities from their ancestral lands. These displacements violate communities’ subsistence and self-determination rights and disrupt their environmentally sustainable stewardship

fertility, promote economic use, and diminish the exploitation and unprofitable use of the national soil resources: W.E. Rees, ‘North American Soils and World Food’ in Ginsky et al 21 at 24–25. 12 UNCCD, Global Land Outlook,1st edn. 2017, available at: https://static1.squarespace.com/static/ 5694c48bd82d5e9597570999/t/59e9f992a9db090e9f51bdaa/1508506042149/GLO_Full_Report_low_res_ English.pdf, at 43; see also J. Watts, ‘Third of Earth’s soil is acutely degraded due to agriculture’, The Guardian, 14 September 2017, available at: https://www.theguardian.com/environment/2017/sep/12/ third-of-earths-soil-acutely-degraded-due-to-agriculture-study. A 1991 estimate put it at some 1,643 million hectares: L.R. Oldeman, R.T. Hakkeling, and W.G. Sombroek, World Map of the Status of HumanInduced Soil Degradation (Wageningen, The Netherlands: ISRIC/UNEP, 1991). 13 UNCCD, Global Land Outlook, at 44–50. 14 Ibid., at 40. 15 Major investors now see land in foreign countries as an attractive asset. Over the last decade, they have bought or leased large areas, especially in developing countries, for farming, mining, tourism, and other uses. Governments generally welcome the influx of funds in the hope that they will stimulate the economy. However, such land acquisitions are often seen as controversial; see e.g. FAO (2015) Status of the World’s Soils, at: http://www.fao.org/3/a-i5228e.pdf; The Soil Atlas, Facts and Figures about Earth, Land and Fields (Berlin: Heinrich Böll Foundation and Institute for Advanced Sustainability Studies, 2015), available at: https://www.boell.de/sites/default/files/soilatlas2015_ii.pdf; UNCCD, Global Land Outlook, at 83, notes that ‘ “[L]and grabs” are a growing phenomenon in Central and South America, Africa, the Pacific, and south-east Asia’. It also indicates that ‘in the period 2000–2011 around 200 million hectares changed hands with the average size of land deals around 40,000 hectares’.

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442 ben boer and ian hannam practices.’16 He goes on to argue that ‘land-use practices associated with land-grabbing threaten the biological and cultural diversity that represents integral aspects of sustainable agriculture, and by extension, sustainable development.’17 The human rights aspect of land-grabbing was a focus of the Tirana Declaration of 2011, which denounced ‘all forms of land grabbing . . . ’, defining large-scale land grabbing, inter alia, as acquisitions or concessions that are ‘in violation of human rights, particularly the equal rights of women’.18 Further issues involve the involuntary migration and displacement of people and communities from productive lands into marginal ecological and economic areas because of ethnic and religious conflict and associated deprivation and violence.19 With respect to the forest sector, the ‘main cause of land degradation in forest ecosystems is selective logging of commercially valuable trees’.20 This industry has caused severe soil erosion and loss of biodiversity in many of the world’s forests, especially in Southeast Asia, where the density of commercially valuable timber species is high. Other causes are forest fires; by removing surface vegetation, excessive runoff can result. In addition, mining can entail removal of non-timber forest products, and cause soil and water pollution. The Center for International Forestry Research states: Deforestation and degradation can impact heavily on small communities who are dependent on forests as a source of emergency income and food during famine or economic hardship. Deforestation also permanently destroys valuable plant and wildlife species within a forest. A degraded forest may not be able to support specialized species. Excessive clearing or thinning of forests can destabilize the world’s climate by releasing into the atmosphere millions of tons of greenhouse gasses normally stored in wood in the form of carbon. This can damage the atmosphere and contributes to global warming and climate change. By storing carbon, forests provide a major environmental benefit by reducing global warming. In most cases, people clear tropical forests to cultivate land. This is motivated by many factors. These include the prospect of generating greater income through farming, changes in land rights, tenure, subsidies, tax laws, resettlement projects, new or restored roads, population pressures and corruption.21 16 C. Oguamanam, ‘Sustainable Development in the Era of Bioenergy and Agricultural Land Grab’ in S. Alam, S. Apapattu, C. G. Gonzalez, and J. Razzaque (eds.), International Environmental Law and the Global South (Cambridge: Cambridge University Press, 2015), 237, 249. 17 Ibid. 18 See Tirana Declaration, Securing Land Access for the Poor in Times of Intensified Natural Resources Competition, Report of the ILC International Conference and Assembly of Members Tirana, Albania, 24–7 May 2011, available at: http://www.landcoalition.org/sites/default/files/documents/resources/ aom_2011_report_web_en.pdf. 19 G. Mastrojeni, ‘Soil Degradation and Migrations in the Age of the Global Environmental Crisis: A Policy-Making Perspective’ in Ginzky et al, International Yearbook of Soil Law and Policy 2016, at 181. 20 CIFOR, ‘Deforestation and Degradation’, Factsheet, available at: http://www.cifor.org/Publications/ Corporate/FactSheet/degradation.htm. 21 Tropical deforestation is estimated to contribute around 20 per cent of global greenhouse gas emissions, and is often cited as one of the major causes of the enhanced greenhouse effect; e.g. Gregory P. Asner, ‘Measuring Carbon Emissions from Tropical Deforestation: An Overview’, Environmental Defence Fund, 2009, available at: https://www.edf.org/sites/default/files/10333_Measuring_Carbon_ Emissions_from_Tropical_Deforestation–An_Overview.pdf. In another study, of the total emissions

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land degradation 443 The link between unsustainable forestry and land degradation has been long recognized. Significantly, the 1992 Statement of Forest Principles22 noted that: [E]fforts to maintain and increase forest cover and forest productivity should be undertaken in ecologically, economically and socially sound ways through the rehabilitation, reforestation and re-establishment of trees and forests on unproductive, degraded and deforested lands, as well as through the management of existing forest resources.23

Improving human well-being by protecting soil from degradation has thus become a moral imperative and a critical aspect of human rights in recent years, particularly from the point of view of food security.24 Concern about world hunger and food security has stimulated the appointment by the United Nations of a Special Rapporteur on the Right to Food,25 and is also a significant focus of the 2015 UN Sustainable Development Goals.26 The process of restoring land that has become degraded is known as remediation.27 In some cases, land is too badly degraded for remediation to be effective, forcing communities that relied on the land to relocate in order to access new resources. This in turn can contribute to population pressures in other fragile environments, ultimately repeating the land degradation cycle all over again. The aim of land degradation laws and policies is to neutralize this cycle, and then to encourage the processes that enhance the soil.

from deforestation and forest degradation, forest degradation accounted for 25 per cent of them; see T. Pearson et al, ‘Greenhouse Gas Emissions from Tropical Forest Degradation: An Underestimated Source’ Carbon Balance and Management, Springer Open, 2017 December; 12: 3, available at: https:// www.ncbi.nlm.nih.gov/pmc/articles/PMC5309188/. Concerning the issue of corruption in the forest sector see e.g. S. Butt, R. Lyster, and T. Stephens, Climate Change and Forest Governance: Lessons from Indonesia (Abingdon: Routledge, 2013), 58. 22 See 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) 31 ILM 881, especially Principles/Elements 2(b) and 8(b); see also ‘Nonlegally Binding Instrument on All Types of Forests’ (2007), UNGA E/2007/INF/2/Add.2. 23 ‘Non-legally Binding Authoritative Statement of Principles for the Management, Conservation and Sustainable Development of All Types of Forests’, 8(b). 24 See UNCCD, Human Rights and Desertification: Exploring the Complementarity of International Human Rights Law and the United Nations Convention to Combat Desertification: Desertification, Land Degradation and Drought (Issue Paper No 1, Secretariat of the United Nations Convention to Combat Desertification in cooperation with the Swiss Agency for Development and Cooperation, Druck Center Meckenheim GmbH, 2008), available at: ; see also UN Special Rapporteur on the Right to Food at: . 25 United Nations Office of the High Commissioner on Human Rights, ‘Special Rapporteur on the Right to Food’, available at: http://www.ohchr.org/EN/Issues/Food/Pages/FoodIndex.aspx. 26 Sustainable Development Goal 2, ‘End hunger, achieve food security and improved nutrition and promote sustainable agriculture’. 27 See generally, H.P. Liniger and W. Critchley (eds.), World Overview of Conservation Approaches and Technologies (WOCAT),Where the Land is Greener: Case Studies and Analysis of Soil and Water Conservation Initiatives Worldwide (Bern: WOCAT, 2007).

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444 ben boer and ian hannam

21.3 Legal Responses to Land Degradation 21.3.1 Global Initiatives 21.3.1.1 Introduction Land degradation is a cross-cutting issue. It intersects with the conservation of biodiversity, the causes and effects of climate change, the transport and disposal of hazardous wastes, and the incidence of contaminated lands. It is also relevant to the capacity of various states and regions to sustain their human populations and to guarantee food security. In recent years there has been an increasing interest in examining and understanding the law relating to land degradation and the promotion of sustainable land use, with more determined moves to promote reform in this area of environmental law at an international level.28 Some progress has also been made on developing appropriate frameworks for sustainable management of land at the national level. Land degradation first gained broad international attention at the 1992 Earth Summit. Agenda 21 devoted a chapter to ‘Managing Fragile Ecosystems: Combating Desertification and Drought’.29 The Earth Summit’s three international conventions each have a land protection role, with provisions that could be used to promote sustainable land use, although the provisions are generally tangential to the particular needs of soil. They are the 1994 Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa30 (UNCCD), the 1992 United Nations Convention on Biological Diversity (CBD)31 and, to a lesser extent, the 1995 United Nations Framework Convention on Climate Change (UNFCCC).32 The UNCCD specifically links these three instruments in its Preamble: ‘Bearing also in mind the contribution that combating desertification can make to achieving the objectives of the United Nations Framework Convention on Climate Change, the Convention on Biological Diversity and other related environmental conventions.’33 In addition, the Rio Declaration on Environment and Development34 and the Non-legally Binding Statement of Forest Principles35 contain important principles for land degradation control and prevention. 28 Boer, Ginzky, and Heuser, ‘International Soil Protection Law’, at 49; Boer and Hannam, ‘Developing a Global Soil Regime’; Boer and Hannam, ‘Legal Aspects of Sustainable Soils: International and National’, at 149. 29 Agenda 21, Chapter 12, available at: https://sustainabledevelopment.un.org/content/documents/ Agenda21.pdf. 30 UN Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, particularly in Africa (Paris, 17 June 1994) 33 ILM (1994), 1328; this instrument is known as a ‘Rio Convention’, although it was prepared later; see ‘The Rio Conventions’ at: https:// www.cbd.int/rio. 31 UNEP Convention on Biological Diversity, 31 ILM (1992) 822. 32 UNEP United Nations Framework Convention on Climate Change, 31 ILM (1992) 849. 33 UNCCD preambular para. 25; see also ‘About the Convention’, at: http://www2.unccd.int/ convention/about-convention. 34 (1992) 31 ILM 874; principles 4, 6, and 7 are the most pertinent. 35 Non-legally Binding Statement of Forest Principles 1992.

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land degradation 445

21.3.1.2 The UNCCD The definition of ‘desertification’ under the UNCCD acknowledges that land degradation in arid, semi-arid, and dry sub-humid areas of the world results from various factors, including climatic variations and human activities (Article 1). The UNCCD acknowledges that arid, semi-arid, and dry sub-humid areas together account for a significant proportion of the earth’s land area and form the habitat and source of livelihood for a large proportion of its population. The objective of the Convention is to prevent and reduce land degradation, rehabilitate partly degraded land, and reclaim desertified land, particularly in countries that experience serious drought. However, the UNCCD cannot be considered an adequate instrument for the protection and sustainable use of soil as such because its provisions do not adequately recognize soil bodies as ecosystems, nor does it contain other elements to capture the full range of legal principles and processes to encourage protection and sustainable management of soil. Further, the UNCCD’s geographic focus of ‘desertification’ to arid, semi-arid, and dry sub-humid areas under the UNCCD excludes other climatic regions of the world that experience severe land degradation processes. While the addition of annexes enables the UNCCD to be applied more specifically at the regional level, taking into account different climatic and geographical conditions,36 the annexes do not operate to extend the reach of the convention beyond arid, semi-arid, and dry sub-humid areas in the regions. However, this is not to deny that those areas not currently classified as ‘semi-arid and dry sub-humid’ within the regions could become so. This appears to be contemplated by the UNCCD text, for example in the context of National Action Programmes, by use of the phrase‘ drought prone areas’.37 The Annexes to the Convention use similar language: the Asian Annex includes the phrase ‘strengthen and/or establish information, evaluation and follow up and early warning systems in regions prone to desertification and drought’;38 the Central and Eastern Europe Annex includes ‘the variety of forms of land degradation in the different ecosystems of the region, including the effects of drought and the risks of desertification in regions prone to soil erosion caused by water and wind.’39 While an interpretation that broadens the scope of the Convention has not been put forward explicitly by the UNCCD Secretariat, the use of such phrases, as well as the continued recent use of the phrase‘ desertification/land degradation and drought’ in documents arising from the Conferences of the Parties40 gives rise to that possibility.41

36 Annex I: Africa; Annex II: Asia; Annex III: Latin America and the Caribbean (LAC); Annex IV: Northern Mediterranean; Annex V: Central and Eastern Europe (CEE), at http://www2.unccd.int/ convention/regions. 37 Article 10(1)(d) UNCCD (emphasis added). 38 Annex II, Art. 4(1) (h) Regional Implementation Annex for Asia (emphasis added). 39 Annex V, Art. 2(b) Regional Implementation Annex for Central and Eastern Europe (emphasis added). 40 e.g. in Ordos Declaration, agreed at COP 13CCD/COP(13)/21/Add.1, available at: http://www2. unccd.int/sites/default/files/inline-files/Ordos%20declaration.pdf, preamble and Arts. 7, 10, and 11. 41 Article 31(3) Vienna Convention on the Law of Treaties; see also International Law Commission, ‘Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties’, UNGA, 19 March 2013, A/CN.4/660, available at: http://legal.un.org/docs/?symbol=A/CN.4/660; see also, with respect to the reach of the Ramsar Convention on Wetlands, J. Jensen and A. Gardner, ‘A Legal Obligation to Restore Wetlands by Environmental Water Allocations’ (2017) 1 Chinese Journal of Environmental Law 158, at 186.

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21.3.1.3 The Convention on Biological Diversity The objective of the CBD is relevant to land degradation as it includes the conservation of biological diversity, encouraging the sustainable use of its components and the fair and equitable sharing of the beneﬁts arising out of the utilization of genetic resources, including by access to genetic resources and by transfer of relevant technologies. It takes into account various rights over those resources (Article 1). The CBD also recognizes that nations have a responsibility for conserving their biological diversity and for using their biological resources in a sustainable manner (preamble). Fundamental to the CBD is the concern that biological diversity is being significantly reduced by human activities. This obviously includes the processes of land degradation. The avoidance of land degradation is implicit in the deﬁnition of ‘sustainable use’, defining the term as ‘the use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations’ (Article 2). A feature of the activities carried out under the auspices of the CBD is a focus on agricultural biodiversity, with a strong interdependence being recognized between the two.42 The CBD and UNCCD Secretariats are actively developing a strategy for land d egradation in the context of biodiversity conservation entitled Framework and Guiding Principles for a Land Degradation Indicator, as part of the effort to ‘monitor and report on progress towards target 15.3 of the Sustainable Development Goals, the strategic objectives of the Rio Conventions and other relevant targets and commitments’.43 It recognizes that many countries do not have the capacity to monitor and report on land degradation. The purpose of the Framework is ‘to provide consistent definitions and the best available methodologies as well as global/regional data options for three sub-indicators’.44 These include land cover and land cover change, land productivity, and carbon stocks above and below ground ‘that could be used to derive the indicator for monitoring and reporting progress towards SDG Target 15.3 as well as other relevant targets and commitments.’45 It is contended here that for the CBD to take on an expanded, more precise role in addressing land degradation and encouraging the sustainable use of land, it would be desirable for technical guidelines to be drafted on sustainable land management, reinforced by an extra protocol to the Convention.46 Such provisions would then need to be reflected in legislation on land degradation and soil conservation at the national level.

21.3.1.4 The UN Framework Convention on Climate Change The UNFCCC recognizes the role of terrestrial ecosystems as a sink and reservoir for potential greenhouse gases and is concerned that human activities have been substantially increasing the atmospheric concentrations of greenhouse gases.47 Two of the principal sources of greenhouse gases are changes in land-use cover (e.g. forests) and land use 42 ‘What is Agricultural Biodiversity?’, at: https://www.cbd.int/agro/whatis.shtml, and ‘Why is it Important?’, at https://www.cbd.int/agro/importance.shtml. 43 UNCCD, CBD, FAO, Global Environment Facility and UNEP, Draft for Consultation; Framework and Guiding Principles for a Land Degradation Indicator, 2016. 44 Ibid., at 3. 45 Ibid. 46 Article 28, Adoption of Protocols CBD. 47 See: The Accounting of Biological Sinks and Sources under the Kyoto Protocol—A Step Forward or Backwards for Global Environmental Protection? (Special Report, German Federal Government, 1998).

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land degradation 447 (e.g. cultivation). As noted above, soils are a major reservoir of the earth’s carbon, second only to the oceans.48 The main land use activities that play a role in emissions of greenhouse gases and initiate or exacerbate soil degradation are deforestation, biomass burning, cultivation, using organic manure, applying nitrogenous fertilizers, and over-grazing of livestock. Excessive vegetation clearance, a principal cause of land degradation, is one of the key concerns of the UNFCCC. Land degradation exacerbates the emission of gases from terrestrial and aquatic ecosystems to the atmosphere. The UNFCCC promotes sustainable management, and the conservation and enhancement of sinks and reservoirs of greenhouse gases not controlled by the Montreal Protocol, including biomass, forests, and oceans as well as other terrestrial, coastal, and marine ecosystems. However, while its focus is on the reduction in emissions in all sectors, it cannot be considered as a sufficiently specific legal vehicle to address land degradation.49 The Kyoto Protocol50 under the UNFCCC, adopted in 1997, contains a responsibility to promote sustainable forms of agriculture in the light of climate change considerations (Article 2(a)(iii)). It recognized the need to expand and preserve soil carbon sinks and improve agricultural practices in countries where a significant proportion of the emissions are related to the clearing of vegetation for agriculture (Articles 3 and 5). The Marrakech Accords provided rules for the implementation of the Protocol.51 The 2015 Paris Agreement under the UNFCCC deals with mitigation of greenhouse gas emissions, adaptation, and finance.52 Its preamble recognizes ‘the importance of the conservation and enhancement, as appropriate, of sinks and reservoirs of the greenhouse gases referred to in the Convention’. This has important implications for land degradation control. Under the Paris Agreement, each country determines plans and regularly reports on the contribution it should make to mitigate global warming. There is no mechanism to force a country to set a specific target by a particular date, but each target should go beyond previously set targets, an approach that is now recognized as the principle of progression,53 as expressed in Article 3: ‘the efforts of all Parties will represent a progression over time’. The aim of the Paris Agreement is to enhance the implementation of the UNFCCC through: ‘(a) Holding the increase in the global average temperature to well below 2°C above preindustrial levels and to pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change and (b) Increasing the ability to adapt to the adverse impacts of climate 48 UNFCCC preamble: ‘Aware of the role and importance in terrestrial and marine ecosystems of sinks and reservoirs of greenhouse gases . . . ’. 49 See further, I. D. Hannam, ‘International and National Aspects of a Legislative Framework to Manage Soil Carbon Sequestration’ in (2004) 65 Special Issue International Journal of Climatic Change 365–87. 50 Kyoto Protocol to the Framework Convention on Climate Change, Bonn (1998) 37 ILM 22. 51 Marrakech Accords, available at: http://unfccc.int/land_use_and_climate_change/lulucf/items/ 3063.php. 52 Paris Agreement, available at: http://unfccc.int/paris_agreement/items/9485.php; adopted by consensus on 12 December 2015. 53 C. Voigt and F. Ferreira, ‘ “Dynamic Differentiation”: The Principles of CBDR-RC, Progression and Highest Possible Ambition in the Paris Agreement’ (2016) 5(2) Transnational Environmental Law 285–303; see also Principle 13, IUCN World Declaration on the Environmental Rule of Law, IUCN World Commission on Environmental Law, available at: https://www.iucn.org/sites/dev/files/content/documents/ world_declaration_on_the_environmental_rule_of_law_final_2017-3-17.pdf.

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448 ben boer and ian hannam change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production’ (Article 2 (a) and (b)).These actions will likely include a wide range of national sustainable land management actions to control or prevent land degradation, including limitations on forest clearing, and improving land cover by employing conservation farming techniques and preventing overgrazing of pastures.54

21.3.1.5 Land Degradation as a Common Concern of Humankind Large-scale land degradation processes of wind and water erosion (or a combination of both) can lead to significant transboundary problems affecting two or more countries, necessitating cooperation between states.55 Transboundary Natural Resources Management (TNRM) has been defined by Griffin et al. as: ‘[A]ny process of cooperation across boundaries that facilitates or improves the management of natural resources (to the benefit of all parties in the area concerned)’.56 Given the interdependence of many countries on trade in food products to address their food security, the world itself can be regarded a ‘global farm’, making land degradation truly a matter of common global concern. For the use, conservation and development of other natural resources, such as water (rivers, lakes, and groundwater), as well as the air and the components of biodiversity, a wide range of international and regional instruments have been agreed. The concepts of common heritage of (hu)mankind as found in the UN Convention on the Law of the Sea,57 and common concern of humankind, as seen in the CBD and UNFCCC, are used in respect of areas and natural resources both within and beyond the national jurisdiction of any state.58 It is notable, that the UNCCD does not use the phrase ‘common concern’ but refers to desertification and drought as ‘problems of global dimension in that they affect all regions of the world and that joint action of the international community is needed to combat desertification and/or mitigate the effects of drought’ (preamble). By regarding land degradation as a common concern of humankind in the same way as in the CBD and UNFCCC, a conceptual shift may be achieved to accord this issue the same weight as in those two conventions.59 54 C. Neely, S. Bunning, and A. Wilkes (eds.), Review for Evidence on Dryland Pastoral Systems and Climate Change: Implications and Opportunities for Mitigation and Adaptation (Rome: Food and Agriculture Organization of the United Nations, 2009), see generally 5–11. 55 Reduction in water quality by soil erosion and sedimentation in transboundary watercourses can affect many countries; likewise, soil particles from wind erosion can be deposited in countries that are great distances from their origin. Dust from China is blown towards Korea, Japan, and the Pacific Ocean, and transport of dust has been demonstrated by chemical and radiological analysis of dust in Hawaiian soil, Greenland ice cores, and St. Elias mountain in Canada; see Makiko Kakikawa, ‘Dustborne microorganisms in the atmosphere over an Asian dust source region, Dunhuang’ Air Quality, Atmosphere & Health December 2008, Volume 1, Issue 4, 195–202. https://link.springer.com/article/10.1007/s11869008-0024-9 56 J. Griffin et al., Transboundary Natural Resource Management in Southern Africa: Main Report (Washington, D.C.: Biodiversity Support Program, World Wildlife Fund, 1999)3. 57 See e.g. K. Baslar, The Concept of the Common Heritage of Mankind in International Law (The Hague: Brill, 1998). 58 See the Declaration of Principles Governing the Seabed and the Ocean-floor, and the Subsoil thereof, beyond the Limits of National Jurisdiction (1970); and the UN Convention on the Law of the Sea—Part XI (1982). 59 See B.W. Boer, ‘Land Degradation as a Common Concern of Humankind’ in F. Lenzerini and A. Vrdoljak (eds.), International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature (Oxford: Hart Publishing, 2014), 289.

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land degradation 449 Bearing the above in mind, it makes sense for states sharing a common land system to manage that system as a single ecological unit notwithstanding national boundaries, as has been done in the European Union (EU) with respect to water resources.60 In fact, the proposal for a European Soil Directive61 in 2006 contemplated such an approach: Soil degradation in one Member State or region can have transboundary consequences. Indeed, dams are blocked and infrastructure is damaged downstream by sediments massively eroded in another country farther upstream. Equally, groundwater bodies flowing through bordering nations can be polluted by contaminated sites on one side of the border. Losses of soil organic matter in one Member State can impair the achievement of the Kyoto protocol targets by the Community. This would imply that the costs to restore environmental quality are borne by a Member State different from that where the soil degrading practice occurred.62

21.3.1.6 IUCN Covenant on Environment and Development Finally, with respect to global initiatives, the provisions of the IUCN Covenant on Environment and Development should be noted.63 The Covenant takes a holistic approach to the protection of the environment and conservation of natural resources. The Covenant’s commentary recognizes that protection and restoration of soils are essential to many n atural systems and resources, as well as to biological diversity’.64 Article 23 states: Parties shall take all appropriate measures to ensure the conservation and where necessary the regeneration of soils for living systems by taking effective measures to prevent large-scale conversion and soil degradation and loss, to combat desertification, to safeguard the processes of organic decomposition and to promote the continuing fertility of soils.

21.3.2 Regional Initiatives Attempts to address land degradation prior to the 1992 UN Conference on Environment and Development were predominantly regional in nature, and did not establish specific 60 e.g. various Directives of the European Union aim to achieve a uniform approach to the use of natural resources, such as Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy (EU Water Framework Directive). It provides for a river basin approach to water management in the EU; see http://ec.europa.eu/environment/ water/water-framework/info/intro_en.htm. 61 ‘Soil’, see http://ec.europa.eu/environment/soil/process_en.htm. 62 Commission of the European Communities, ‘Proposal for a Directive of the European Parliament and of the Council establishing a framework for the protection of soil and amending Directive 2004/35/ EC 6’, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52006PC0232&fr om=EN. The Soil Directive proposal was placed in abeyance in 2014; see ‘The proposal for a Soil Framework Directive’ available at http://ec.europa.eu/environment/soil/process_en.htm. 63 Draft International Covenant on Environment and Development: implementing sustainability, 5th edn. 2015, available at: https://portals.iucn.org/library/node/46647. 64 Ibid., at 83.

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450 ben boer and ian hannam rules for sustainable land use.65 Only one of these is a specific soil instrument, made under the 1991 Alpine Convention,66 namely the Protocol for the Implementation of the Alpine Convention in the Field of Soil Protection.67 This is the only legally binding regional instrument in the world specifically directed to the protection of soil. It aims ‘to reduce quantitative and qualitative soil impairments, in particular by applying agricultural and silvicultural production processes which have a minimal detrimental impact on the soil, by using land economically, controlling erosion and restricting soil sealing’ (preamble). Among its objectives it provides: In particular, the ecological functions of soil, which are essential elements of the ecological balance, shall be safeguarded and preserved both qualitatively and quantitatively on a longterm basis. The restoration of impaired soils shall be promoted.68

Till Markus suggests, with some reservations regarding regional socio-economic and political conditions, that this Protocol could provide a model for an international soil conservation regime.69 In the African region, the Revised African Convention on the Conservation of Nature and Natural Resources,70 adopted in March 2017, includes specific mention of soil under its definition of ‘natural resources’ (Article V (1)). It is one of few regional treaties that plays a significant role in addressing land degradation. Its objectives are to enhance environmental protection, foster the conservation and sustainable use of natural resources, and to harmonize and coordinate policies in these fields with a view to achieving ecologically rational, economically sound, and socially acceptable development policies and programs (Article II). These provisions are critical for the prevention and control of land degradation. The parties are guided by three important principles that are relevant for land degradation control, including: ‘the right of all peoples to a satisfactory environment favorable to their development, the duty of States, individually and collectively to ensure the enjoyment of the right to development, and the duty of States to ensure that developmental and environmental 65 e.g. the 1968 African Convention for the Conservation of Nature and Natural Resources 1001 UNTS 4 (note that this instrument was revised in 2017 to include land degradation); the 1974 Convention Establishing a Permanent Inter-State Drought Control Committee for the Sahel; also Art. 7 1985 ASEAN Agreement on the Conservation of Nature and Natural Resources (not in force), available at: http:// sunsite.nus.edu.sg/apcel/kltreaty.html. 66 The 1991 Alpine Convention is focused on pursuing ‘a comprehensive policy for the preservation and protection of the Alps by applying the principles of prevention, payment by the polluter (the ‘polluter pays’ principle) and cooperation, after careful consideration of the interests of all the Alpine States, their Alpine regions and the European Economic Community, and through the prudent and sustained use of resources . . . ’ (Art. 2(1)). The Convention includes soil conservation under its ‘General Obligations’ in Art. 2(2)(d). 67 The Protocol for the Implementation of the Alpine Convention of 1991 in the Field of Soil Protection 1991 Official Journal of the European Union, L 337/29, available at: http://www.alpconv.org/en/convention/ protocols/Documents/SoilProtocolEN.pdf. 68 Final para to Article. 1(2), Protocol to Alpine Convention. 69 See T. Markus, ‘The Alpine Convention’s Soil Conservation Protocol: A Model Regime?’ in Ginzky et al., International Yearbook of Soil Law and Policy 2016, at 149, 163. 70 https://au.int/en/treaties/african-convention-conservation-nature-and-natural-resourcesrevised-version;.

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land degradation 451 needs are met in a sustainable, fair and equitable manner’ (Article III). Article VI includes specific measures on land and soil: 1. The Parties shall take effective measures to prevent land degradation, and to that effect shall develop long-term integrated strategies for the conservation and sustainable management of land resources, including soil, vegetation and related hydrological processes. 2. They shall in particular adopt measures for the conservation and improvement of the soil, to, inter alia, combat its erosion and misuse as well as the deterioration of its physical, chemical and biological or economic properties.

Any new international or regional framework to guide national legal efforts to address land degradation must, we contend, be based on a clear understanding of the confusing differences in the use of terminology in the environmental law, land science, sociological and ecological disciplines.71 A range of concepts and terms that appear in the instruments outlined above can be used to underpin such a framework but careful attention should be paid to the selection and explanation of its elements for possible adoption at national level.

21.3.3 Strategies and Policies 21.3.3.1 The World Soil Charter 2014 The non-legally binding Revised World Soil Charter of 2014 specifies that ‘[s]oils are a key enabling resource, central to the creation of a host of goods and services integral to ecosystems and human well-being. The maintenance or enhancement of global soil resources is essential if humanity’s overarching need for food, water, and energy security is to be met.’72 The Charter includes guidelines for actions by government, including to: ‘incorporate the principles and practices of sustainable soil management into policy guidance and legislation at all levels of government, ideally leading to the development of a national soil policy’.73

21.3.3.2 The UN Sustainable Development Goals 2015 and Land Degradation Neutrality In 2015, the United Nations completed negotiations for the new UN Sustainable Development Agenda.74 The seventeen Sustainable Development Goals (SDGs), which form part of the 71 The authors have prepared both a national guide and a draft protocol on sustainable use of land and its soils: I.D. Hannam and B.W. Boer, Drafting Legislation for Sustainable Soils: A Guide (Switzerland and Cambridge: IUCN Gland, 2004), 2; I. D. Hannam and B. W. Boer, ‘Draft Protocol for Soil Security and Sustainable Use of Soils and Commentary, prepared for a side-event at UNCCD COP9 (2009), see Yearbook of International Environmental Law 2009, Vol. 20, 839. 72 Global Soil Partnership and FAO, Revised World Soil Charter 2015, available at: http://www.fao.org/ fileadmin/user_upload/GSP/docs/ITPS_Pillars/annexVII_WSC.pdf; the UN Food and Agriculture Organization negotiated the updating of the 1982 World Soil Charter as part of the establishment of the Global Soil Partnership, established in 2013, and comprises a wide range of governments, institutions, and non-state actors, see: . 73 Ibid. 3.V Actions by Governments (emphasis added). 74 Transforming our World: the 2030 Agenda for Sustainable Development, UN A/RES/70/1, https:// sustainabledevelopment.un.org/post2015/transformingourworld.

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452 ben boer and ian hannam 2030 Agenda came into effect in January 2016. Over the ensuing fifteen years, the SDGs are intended to mobilize efforts to end poverty, fight inequality, and address a wide range of environmental issues, including climate change, conservation of the oceans, desertification, land degradation, and the loss of biodiversity.75 Although the SDGs are not legally binding, governments are expected to take ownership and establish national frameworks to achieve the Goals and their associated Targets. With regard to land degradation, the general aim of SDG 15 is to ‘conserve and restore the use of terrestrial ecosystems such as forests, wetlands, drylands and mountains by 2020’. The UNCCD Global Land Outlook observes that ‘SDG 15 . . . puts a strong emphasis on the need to scale up transformative management practices with the goal to “Protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification, halt and reverse land degradation, and halt biodiversity loss” ’.76 Land degradation neutrality is seen as ‘a new paradigm in environmental politics for avoiding, reducing and reversing land degradation’.77 SDG Target 15.3 ambitiously aims, by 2030, ‘to combat desertification, restore degraded land and soil, including land affected by desertification, drought and floods, and strive to achieve a land-degradation neutral world’.78 Knut Ehlers observes that this Target ‘thus mainstreams in the SDGs the concept of a “land degradation neutral world” as a leitmotif for soil protection.’79 A 2016 SciencePolicy Brief defines Land Degradation Neutrality (LDN) as ‘a state whereby the amount and quality of land resources necessary to support ecosystem functions and services and enhance food security remain stable or increase within specified temporal and spatial scales and ecosystems’.80 LDN is a new initiative intended to halt the ongoing loss of healthy land through land degradation. Unlike past approaches, LDN creates a target for land degradation management, promoting a two-pronged approach: to avoid or reduce degradation of land combined with measures to reverse past degradation. The objective is that losses are balanced by gains, to achieve a position of no net loss of healthy and productive land.81 75 United Nations, The Sustainable Development Agenda, available at: http://www.un.org/ sustainabledevelopment/development-agenda/. 76 UNCCD, Global Land Outlook, at 36. 77 G. Metternich and A. Cowie, ‘Kill not the Goose that Lays the Golden Egg: Striving of Land Degradation Neutrality’, International Institute for Sustainable Development, SDG Knowledge Hub, 23 November 2017, http://sdg.iisd.org/commentary/guest-articles/kill-not-the-goose-that-lays-the-goldenegg-striving-for-land-degradation-neutrality/. 78 The UNCCD 2018–30 Strategic Framework adopted by the 2017 UNCCD Conference of the Parties links the UNCCD’s aims with SDG 15.3. It includes a ‘Vision’ which emphasizes the achievement of ‘a land degradation-neutral world consistent with the 2030 Agenda for Sustainable Development, within the scope of the Convention’ (emphasis added); Annex to The future strategic framework of the Convention, Draft decision submitted by the Chair of the Committee of the Whole: II. Vision, 3. ICCD/COP (13)/L.18, available at: http://www2.unccd.int/sites/default/files/sessions/documents/2017-09/copL-18.pdf. 79 K. Ehlers, ‘Chances and Challenges in Using the Sustainable Development Goals as a New Instrument for Global Action Against Soil Degradation’ in Ginzky et al., International Yearbook of Soil Law and Policy 2016, at 73, 75. 80 UNCCD Science-Policy Brief 02—September 2016; http://www2.unccd.int/sites/default/files/ relevant-links/2017-01/18102016_Spi_pb_multipage_ENG_1.pdf. This definition is intended to apply to affected areas as defined in the text of the UNCCD. 81 See also UNCCD Policy Brief, Zero Net Land Degradation: A Sustainable Development Goal for Rio+20 (2012); http://www.unccd.int/Lists/SiteDocumentLibrary/Rio+w.unccd.int/Lists/SiteDocumentLibrary/ Rion.pdfR.

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land degradation 453 The UNCCD 2018–30 Strategic Framework82 that emerged at COP 13 was described as ‘a new global roadmap to address land degradation’ and ‘the most comprehensive global commitment to achieve Land Degradation Neutrality (LDN) in order to restore the prod uctivity of vast swathes of degraded land, improve the livelihoods of more than 1.3 billion people, and to reduce the impacts of drought on vulnerable populations’.83 The Strategic Framework includes a range of provisions with respect to policy and planning and ‘actions on the ground’, but does not specifically include legal requirements to achieve its objectives. The Ordos Declaration that was also issued at COP 13 committed to facilitate, ‘for Parties that wish to do so, the voluntary land degradation neutrality target-setting process, and to provide sufficient support to national efforts to turn defined land degradation neutrality targets into effective projects and equitable action’.84 The challenge is to translate Goal 15 and Target 3, together with the aims of the Strategic Framework into implementable legislation and policies that will deliver LDN at a national level in all countries suffering from land degradation.

21.3.4 National Laws and Policies 21.3.4.1 Introduction As noted in the introduction to this chapter, most countries do not have specific legislation to address land degradation. In 2002, the authors observed: Only a few States have a law that refers to the ecological features or needs of soil, or its role in the conservation of biological diversity. Many individual laws do not have a clear statement of purpose or objectives, and in other cases, the stated intention of the legislation is poorly reflected in the substantive provisions of the legislation. Some States have developed a framework of legislation to manage a number of distinct soil and land use problems, but they generally lack a linking or coordinating mechanism.85

In the ensuing seventeen years, with some exceptions, the position is not very different. However, with the increasing attention now begin given to land degradation through the concept of LDN, it might be expected that more states will enact specific legislation.86 82 UNCCD 2018–30 Strategic Framework, ICCD/COP(13)/L.18n 38, available at: http://www2.unccd. int/sites/default/files/sessions/documents/2017-09/copL-18.pdf. 83 ‘Countries agree on a landmark 2030 strategy to save fertile lands’, see http://www2.unccd.int/ news-events/countries-agree-landmark-2030-strategy-save-fertile-lands. 84 The Ordos Declaration, para. 1 (emphasis in original). 85 I.D. Hannam and B.W. Boer, Legal and Institutional Frameworks for Sustainable Soils: A Preliminary Report (IUCN Environmental Policy and Law Paper No. 45 2002), xiv, available at:https://portals.iucn. org/library/sites/library/files/documents/EPLP-045.pdf. 86 Snapshots of progress as well as lack of it are recorded for various regions and states in S. T. Shikongo, ‘Greeting to the Launch of the Yearbook from an African Perspective’ in Ginzky et al., International Yearbook of Soil Law and Policy 2016, at 3; T. Qin and F. Dong, ‘Legislative Progress and Soil Contamination Prevention and Control in China’ in Ginzky et al., International Yearbook of Soil Law and Policy 2016, at 365; I. Hannam, ‘National Developments in Soil Protection in Mongolia’ in Ginzky et al., International Yearbook of Soil Law and Policy 2016, at 285; M. Raffelsiefen and T. Strassburger, ‘The Protection of Soil: Does the European Union Live up to its own Ambitions?’ in Ginzky et al., International Yearbook of Soil

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454 ben boer and ian hannam The following section briefly summarizes some of the main elements that need to be considered when designing legislation to address land degradation.

21.3.4.2 Land Tenure Land tenure systems in many regions tend to be dynamic, responding to socio-economic and political changes put in place for the exploitation of natural resources. Secure land tenure is seen as an important part of sustainable land management.87 As recognized by FAO, ‘[L]and tenure and environmental conditions are closely related: land tenure can promote land use practice that harms the environment or it can serve to enhance the environment’.88 As noted by the FAO, ‘[i]n many parts of the world, clearing the land has become an e ffective way to lay claim to it. For example, forests have traditionally been used for slash-and-burn agriculture by local people who had customary rights to those resources,’89 and ‘lack of clear rights can reduce the incentive to implement long-term resource measures, which leads to land degradation’.90 This observation is reinforced by the 2017 Global Land Outlook: ‘Many developing countries lack adequate laws, or fail to implement established provisions that legally determine who owns the land and its resources.’91 The types of land tenure in place for a particular jurisdiction often determine the kinds of uses to which land can be put.92 It can be used as a conservation tool through zoning of uses that specify what can and cannot be done on the land, with specific protections for soils, water, flora, and fauna being attached to the zoning. Such mechanisms can be significant for controlling or preventing land degradation and promoting sustainable land use.93 The different categories of land tenure will determine who uses the land and how the land is managed, which in turn can determine the type, degree and extent of land degradation. Land tenure is categorized by the UN Food and Agriculture Organization as private, communal, open access, or state land tenure.94 The Global Land Outlook uses a slightly broader categorization: nationalized; freehold; leasehold; rental; cooperative; and customary land tenure.95

Law and Policy 2016, at 389; Richardson and Dooley (‘United States Soil Degradation’) note that ‘there has been some legislative development at federal and state level in the United States’; see also Du Qun and I.D Hannam, Law, Policy and Dryland Ecosystems in the People’s Republic of China (IUCN Environmental Policy and Law Paper No. 80, 2011), available at: http://www2.ecolex.org/server2neu. php/libcat/docs/LI/MON-086129.pdf. 87 See generally, FAO, Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (Rome, 2012), available at: http://www.fao.org/ docrep/016/i2801e/i2801e.pdf. 88 FAO, Land Tenure and Rural Development (FAO Land Tenure Studies 3, Rome, 2002), 23, available at: http://www.fao.org/3/a-y4307e.pdf. 89 Ibid. 90 Ibid. 91 UNCCD, Global Land Outlook, at 24. 92 Ibid. ‘Land tenure and environmental conditions are closely related: land tenure can promote land use practices that harm the environment or it can serve to enhance the environment. ’Land Tenure and Rural Development, at 23. 93 J. Oglethorpe (ed.), Tenure and Sustainable Use (SUI Technical Series Vol. 2, The World Conservation Union, 1998). 94 FAO, Land Tenure and Rural Development, at 8. In practice, most forms of holdings may be found within a given society, e.g. common grazing rights, private residential and agricultural holdings, and state ownership of forests. 95 UNCCD, Global Land Outlook, at 81.

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land degradation 455

21.3.4.3 Access to Land Several strategies exist to gain access to land which can directly, or indirectly, affect the environmental condition of the land. These include: • Purchase. • Adverse possession or prescription; the acquisition of rights through possession for a prescribed time.96 • Leasing, or gaining access to land by paying rent to the owner. • Sharecropping, or gaining access to land in return for paying the owner a percentage of the production. • Inheritance or gaining access to land as an heir. • Squatting illegally on land.97 In addition to these strategies, land access can be enabled by land reform.98 Land reform necessarily involves the reworking of laws and regulations regarding land ownership as well as a revisiting of customary tenure systems. Such land reforms usually occur in situations where much of the land is owned by a relatively small number of landowners and the land is idle or under-utilized. Land restitution is also seen as an important type of reform,99 as has redistribution.100 Such reforms necessarily involve legal and institutional changes regarding ownership and use, and often can be politically controversial. Concerning large-scale land redistribution, anti-reform arguments include loss of productivity and lack of adequate compensation. Zimbabwe is an example of the difficulties of such reforms, whereby land redistribution has contributed to economic decline, environmental degradation and increased food insecurity.101

21.3.4.4 Farming Systems and Land Use Farming, including agriculture, aquaculture, grazing, and forestry, use a significant proportion of the world’s land, in order to provide the essential products for maintenance of human life. Land also has intangible values, in terms of open space, cultural landscapes, and aesthetics.102 States have varying legal and institutional systems that determine the nature of the law and policy that govern agrarian land, and therefore, its role in sustainable management of the 96 In some countries, this may be the only method for small farmers to gain formal access to vacant or abandoned land and to bring it into productive use. 97 Summarized from FAO, Land Tenure and Rural Development, at 16. 98 F. Batty, ‘Pressures from Above, Below and Both Directions: The Politics of Land Reform in South Africa, Brazil and Zimbabwe’ (Western Michigan University, presented at Annual Meeting of the Midwest Political Science Association, Chicago, Illinois, 7–10 April 2005). 99 M. Adams and J. Howell. ‘Redistributive Land Reform in Southern Africa’ (Overseas Development Institute. DFID. Natural Resources Perspectives No. 64. January 2001). 100 FAO. Land Tenure and Rural Development, 17. 101 ‘From Breadbasket to Basket Case’, The Economist, 27 June 2002; S. Moyo and W. Chambati, Land and Agrarian Reform in Zimbabwe: Beyond White Settler-Settler Capitalism (CODESRIA & AIAS, 2013), available at: http://www.codesria.org/spip.php?article1779. 102 M. R. Grossman and W. Brussaard (eds.), Agrarian Land Law in the Western World, Essays about Agrarian Land Policy and Regulation in Twelve Countries of the Western World (Wallingford: CAB International, 1992), xiii–xiv.

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456 ben boer and ian hannam land and avoidance of the occurrence of land degradation.103 Depending on the particular economic and political systems involved, legal regulation can determine whether landowners retain freedom in land use decision-making, or whether that freedom is restricted. Farmers are in any case recognized as having ‘a dual indivisible role, the first being that of an entrepreneur trying to maximize his/her benefits, the other being that of a manager of public goods: the environment’.104 Farming systems cover a range of farm activities: cropping, livestock grazing, forestry and woodlots, fisheries, including aquaculture, forestry, and poultry. The concept of sustainable farming systems involves using the land without disrupting the ecological and socio-economic balance. Historically, many farming systems, and especially cropping, have been concentrated on maximizing yield, often leading to significant land degradation. Globally, farming and pastoral land is paid most attention by the UNCCD through its focus on semi-arid and drought-affected land.105 However, the CBD is also significant for agricultural and pastoral land because it recognizes that nations have a responsibility for conserving their biological diversity and for using their biological resources in a sustainable manner.106 As noted above, the UNFCCC recognizes the role of terrestrial ecosystems as sinks and reservoirs for potential greenhouse gases and that human activity has been contributing to atmospheric concentrations of greenhouse gases.107 Laws concerning protection of land are seen as important in keeping pastoral land productive. They focus on soil productivity, prevention of erosion, and protecting land from environmental damage.108 Typical examples are found in Australia, the United States and Canada.109

21.3.4.5 The Role of Protected Areas A protected area is defined by the CBD as ‘a geographically defined area which is designated or regulated and managed to achieve specific conservation objectives’ (Article 2). A broader definition that has been widely accepted across regional and global frameworks has been provided by the International Union for Conservation of Nature (IUCN) in its categorization of guidelines for protected areas: ‘A protected area is a clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long term conservation of nature with associated ecosystem services and cultural values’.110 The IUCN definition more specifically allows for the conservation of protected areas with regard to their natural and cultural values. As a result of the endeavours by 103 Ibid., at xiv. 104 R. Simoncini, ‘Agricultural Use of Natural Resources in Europe’ in Oglethorpe (ed.), Tenure and Sustainable Use, at 10. 105 Articles 8(c) and (f), 19(e). 106 See generally, A Good Practice Guide: Pastoralism, Nature Conservation and Development, available at: https://www.cbd.int/development/doc/cbd-good-practice-guide-pastoralism-booklet-web-en.pdf. 107 UNFCCC preamble, paras. 2 and 4. 108 I.D. Hannam ‘International Pastoral Land Law’ in G. Steier and K. K. Patel (eds.), International Farm Animal, Wildlife and Food Safety Law (Cham: Springer, 2017), 601, 602. 109 Soil Conservation Act 1938, New South Wales; Soil and Land Conservation Act 1945, Western Australia; Soil Conservation Act 1935, US Public Law 74–46, and Soil Conservation and Domestic Allotment Act 1936, Public Law 74–761; Soil Conservation Act 1996, Canada; see further Hannam and Boer, Drafting Legislation for Sustainable Soils, at 35–41. 110 IUCN, ‘What is a Protected Area’, available at: https://www.iucn.org/theme/protected-areas/about.

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land degradation 457 national governments, the CBD Secretariat, the IUCN, and related bodies, pursuant to the ‘Aichi targets’ set at the 2010 CBD Conference of the Parties in Nagoya, some 15 per cent of the world’s terrestrial areas within national jurisdiction are declared as protected, with the highest regional percentages being found in Latin America and the Caribbean.111 The legal protection of specific areas can occur at three levels. At international level, the World Heritage Convention112 and the Ramsar Convention on Wetlands,113 for example, designate protected areas according to their definitions and listing criteria, with nominations being prepared at national level.114 At regional level, the best example is the European Natura 2000 programme.115 At national level, a large number of states have enacted laws for protected areas, with varying levels of success.116 The range of natural values that any one protected area may safeguard can be vast. Many will be allocated primarily for species conservation, whether for flora or fauna or for the relationship between them, but protected areas are similarly important for conserving sites of Indigenous and local community cultural importance. They also represent considerable reserves of natural resources, as well as the capacity to store carbon.117

21.3.4.6 Physical Planning to Avoid Land Degradation In many countries, the protection of agricultural land against unsustainable practices is addressed by physical planning and zoning legislation. Physical planning processes can produce guidelines for land use at national, state/provincial, and local levels of government. Physical planning regulations generally have binding effect through a system of zoning, environmental impact assessment, and approvals for a wide range of both rural and urban development activities, in order to avoid degradation and inappropriate use of land. In jurisdictions that include Indigenous people, it is important to ensure their participation in physical planning and decision-making, as many Indigenous cultures are based on sustainable use of land resources. The provisions of the United Nations Declaration on the Rights of Indigenous People118 should be taken into account in this context, as recognized in its 111 See Aichi Biodiversity Target 11. Protected Planet Report 2016, v, available at: https://www. protectedplanet.net/c/protected-planet-report-2016. 112 Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972 1037 UNTS 151. 113 Convention on Wetlands of International Importance Especially as Waterfowl Habitat, 1971 996 UNTS 245. 114 See generally A. Gillespie, Protected Areas and International Environmental Law (Leiden: Brill, 2008). 115 See ‘Protected Areas Designated under Regional Conventions’; Natura 2000 is ‘an ecological network of terrestrial, coastal and marine protected areas aiming to protect the most valuable and threatened habitats and species across Europe’: https://www.protectedplanet.net/c/world-database-on- protected-areas/regionally-designated-protected-areas/natura-2000-sites. 116 See B. Lausche, Guidelines for Protected Areas Legislation (IUCN Environmental Policy and Law Paper No. 81, 2010), available at: https://portals.iucn.org/library/sites/library/files/documents/eplp-081.pdf. 117 As noted by Asner, ‘Measuring Carbon Emissions from Tropical Deforestation: An Overview’, carbon emissions from tropical deforestation account for an estimated 20 per cent of global carbon emissions. Thus, in protecting the world’s carbon stocks, greenhouse gas emissions are reduced and long-term land cover change can be minimized. 118 Adopted by the United Nations General Assembly during its 61st session at UN Headquarters in New York City on 13 September 2007.

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458 ben boer and ian hannam preamble: ‘Recognizing that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment’.

21.4 Concluding Remarks Despite the severity of land degradation worldwide, as outlined by the UNCCD’s Global Land Outlook, in many countries the legislative framework to manage the different processes of land degradation remains unable to effectively contribute to overcoming the problems. The future challenges and opportunities for the management and restoration of land resources in the context of sustainable development have been cited by the Global Land Outlook as including: food, water and energy security; climate change and biodiversity conservation; urban, peri-urban, and infrastructure development; land tenure, governance; gender; migration, conflict, and human security.119 The recent development of the SDGs by the UN and the promotion of the concept of Land Degradation Neutrality (LDN) as a primary objective in regard to SDG 15.3 have shed new light on tackling the global problem of land degradation. Equally, new and innovative legislative frameworks will be required as a component of the overall approach to achieve LDN. Attaining LDN will significantly contribute to sustainable development through rehabilitation, restoration, conservation, and sustainable management of land resources. This integrated approach is the basis of the conceptual framework for LDN, a target which is seen as the driving vehicle for the implementation of the UNCCD and as an important part of the 2030 Agenda for Sustainable Development. It has been described as a daunting challenge, where the ‘institutionalized international cooperation under the umbrella of UNCCD needs more flesh and concrete actions in terms of scientific study, concerted international legal mechanisms and policy responses at domestic level to make it work on the ground’.120 In this regard, at the international level the negotiation of a new global instrument,121 with all the attendant difficulties of introducing yet another convention, could fill a much-needed gap in providing legislative guidance for national land degradation controls in those regions where the UNCCD applies, as well as more generally. This chapter has ranged over the international, regional, and national legal and policy frameworks which are currently available to address land degradation. Those frameworks are demonstrably fragmented, with insufficient connection horizontally between the various relevant Conventions, as well as vertically between those Conventions and the regional and national mechanisms. The international community continues to require a global regime which recognizes the fundamental value of the lands and their soils around the world, and that such a regime must include principles and concepts to form the basis for practical and effective mechanisms to address land degradation at national and local level.

119 UNCCD, Global Land Outlook, at 7. 120 B. Desai and B. K. Sidhu, ‘Striving for Land-Soil Sustainability: Some Legal Reflections’ in Ginzky et al., International Yearbook of Soil Law and Policy 2016, at 37. 121 See Boer and Hannam, ‘Developing a Global Soil Regime’.

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land degradation 459

21.5 Select Bibliography B.W. Boer and I.D. Hannam, ‘Legal Aspects of Sustainable Soils: International and National’ (2003) 12 Review of European Community and International Environmental Law (RECIEL) 149. B.W. Boer and I.D. Hannam, ‘Developing a Global Soil Regime’ (2015) 1 International Journal of Rural Law and Policy 1. Boer, B.W., H. Ginzky, and I.L. Heuser, ‘International Soil Protection Law: History, Concepts, and Latest Developments’ in H. Ginzky et al.(eds.), International Yearbook of Soil Law and Policy 2016 (Berlin: Springer, 2017). Food and Agriculture Organization (FAO), Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (Rome, 2012). FAO, Status of the World’s Soils (Rome: FAO, 2015). H. Ginzky,. et al. (eds), International Yearbook of Soil Law and Policy 2016 (Berlin: Springer 2017). I.D. Hannam and B.W. Boer, Drafting Legislation for Sustainable Soils: A Guide (Gland: IUCN, 2004). Liniger, H. P. and W. Critchley (eds.), Where the Land is Greener: Case Studies and Analysis of Soil and Water Conservation Initiatives Worldwide (Bern: WOCAT, 2007). United Nations Convention to Combat Desertification (UNCCD), Global Land Outlook (Bonn: UNCCD, 1st edn. 2017).

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chapter 22

Natu r e Conservation Agustín García-Ureta

22.1 Overview

461

22.2 Protected Objects

464

22.3 The Interplay Between Wildlife and Protected Areas

466

22.2.1 Wildlife 22.2.2 Biological Diversity 22.2.2.1 Notion 22.2.2.2 Dimensions of Biodiversity’s Intrinsic Value

22.3.1 The Transition from Nature Wonders to Wildlife Conservation 22.3.2 Legal Definition and Criteria for Designation 22.3.3 Size of Protected Areas and Wildlife Protection 22.3.4 Wildlife and Connectivity

22.4 Specific Measures for the Protection of Wild Species 22.4.1 Legal Status 22.4.2 Criteria for Classification 22.4.3 The Role of Lists 22.4.4 Mechanisms for Protection: General Prohibitions and Limited Exemptions 22.4.5 Wandering and Alien Species 22.4.6 Trade in Species: The Role of CITES

464 464 464 465

466 467 469 472

473 474 475 476

478 480 482

22.5 Wildlife, Property Rights and Market Mechanisms

484

22.6 Concluding Remarks

487

22.7 Select Bibliography

487

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nature conservation 461

22.1 Overview Although extinctions are natural processes (no everlasting species has so far been found) it is widely acknowledged that wildlife is experiencing a major crisis.1 Unlike previous mass extinctions, present processes are basically attributable to human activities. Humans are appropriating between 30 per cent and 40 per cent of the entire planet’s plant production, more than double the amount taken a century ago.2 As a result, habitats and ecosystems (including essential services e.g. pollination or water and air purification) are under threat.3 High decline rates are being observed in the case of coastal and freshwater wetlands. Notwithstanding the lack of knowledge on an estimated number of species,4 some appraisals indicate that modern rates of disappearance are eight to 100 times higher (e.g. 477 vertebrates have gone extinct since 1900, rather than the nine that would be expected at natural rates)5 or possibly much more.6 Climate change has increased the average annual temperature bringing deep changes in ecosystems, habitats, and species.7 Seasonal patterns of plants and animals (e.g. reproduction or migration) are already varying,8 and some of them are likely to face extinction owing to their inability to adapt to a new situation.9 Arguably, this poses formidable challenges to wildlife conservation as humankind may exert further pressure to guarantee its own survival (e.g. water and food supply).10 It is for these reasons that a sixth extinction may in effect be underway in a new human-dominated geological epoch, the Anthropocene.11 Wildlife has been subject to a variety of approaches during the ages both in terms of species and habitats protection. Roman law conceived animals and plants as objects belonging to 1 The preamble to the Convention on Biological Diversity declares that it is ‘being significantly reduced by certain human activities’ (emphasis added), see Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79 (CBD). 2 Secretariat of the CBD, Global Biodiversity Outlook 4 (Montréal, 2014), 45. 3 J. L. Payne and others, ‘Ecological Selectivity of the Emerging Mass Extinction in the Oceans’ (2016) 353 Science 1284. 4 According to current estimates, there are 8.7 million species. This means that 86 per cent of existing species on Earth and 91 per cent of species in the ocean still await scientific description. C. Mora and others, ‘How Many Species Are There on Earth and in the Ocean?’ (2011) 9 PLoS Biol: e1001127. doi:10.1371/ journal.pbio.1001127. 5 G. Ceballos and others, ‘Accelerated Modern Human–induced Species Losses: Entering the Sixth Mass Extinction’ (2015) 1 Science Advances e1400253. 6 See S. L. Pimm et al., ‘The Biodiversity of Species and Their Rates of Extinction, Distribution, and Protection’ (2014) 344/6187 Science 987. 7 D. Laffoley and J. M. Baxter (eds.), Explaining Ocean Warming: Causes, Scale, Effects and Consequences (IUCN, Gland, 2016), available at: https://portals.iucn.org/library/sites/library/files/ documents/2016-046.pdf. 8 A. Troutborst, ‘Transboundary Wildlife Conservation in A Changing Climate: Adaptation of the Bonn Convention on Migratory Species and Its Daughter Instruments to Climate Change’ (2012) 4 Diversity 258. 9 E. Kolbert, The Sixth Extinction: An Unnatural History (New York: Henry Holt, 2014), 189. 10 D. A. Farber, ‘Separated at Birth? Addressing the Twin Crises of Biodiversity and Climate Change’ (2016) 42 Ecology Law Quarterly 841. 11 L. Simon, S. L. Lewis, and M.A. Maslin, ‘Defining the Anthropocene’ (2015) 519 Nature 171.

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462 agustín garcía-ureta everyone until being captured or killed (an approach still enshrined in civil law legislation in some states, e.g. Spain or France, albeit subject to modern wildlife laws). During medieval times, hunting rights, the use of forests, and timber exploitation were basically under the control of the Crown or local authorities.12 Active, comprehensive, and widespread protection of wildlife was not needed.13 Centralized control was also carried out as a colonial conservation strategy in Africa.14 This state of affairs varied as the nineteenth century brought important changes in terms of increasing economic activity and subsequent wildlife exploitation in the Western world (e.g. the United Kingdom, United States, or Canada) but also in other countries and continents with rich wildlife (e.g. India or Africa). As a result, large strips of land received official protection under diverse labels and in a more limited way different pieces of legislation were adopted to protect certain species (e.g. UK Sea Birds Preservation Act of 1896, or the Wild Birds Protection Act of 1872; the Madras Wild Elephant Preservation Act of 1873 in India, or The US Lacey Act of 1900 banning trafficking in illegal wildlife). The twentieth century experienced the development of both national and international instruments to protect areas and species.15 During the period from the end of the Second World War to the UN Stockholm Conference on the Human Environment (1972), states became more aware that the economic development following the war had also brought substantial harm to habitats and species. Successive laws were adopted to ‘safeguard and wisely manage the heritage of wildlife’.16 The beginning of the 1970s saw the United States adopt the Endangered Species Act of 1973, improving the framework set out by its predecessor (the Endangered Species Preservation Act of 1966) by protecting listed species and the ecosystems within which those species lived. Likewise, the United Kingdom adopted the Conservation of Wild Creatures and Wild Plants Act 1975 heralded as a first attempt to provide a framework within which all types of wildlife might receive protection albeit its impact was limited due to its own constraints.17 International efforts also helped to shape wildlife laws as several key Conventions of global or regional application were adopted.18 At regional level and in spite of the lack of express powers regarding environmental matters the European Union (EU) enacted Council Directive 79/409/EEC of 2 April 1979, on the 12 An Order of Charles IV in France (1396) put an end to several centuries of relative tolerance of hunting for commoners; under the UK Game Act of 1605 no person was permitted to hunt deer unless he had at least £200); P. B. Munsche, Gentlemen and Poachers: The English Game Laws 1671–1831 (Cambridge: Cambridge University Press, 1981), 5. 13 For instance, the Swiss Constitution included an Article in 1874 enabling the federal state to regulate fishing and hunting to protect game in the mountains and birds useful for agriculture. 14 See for instance F. Nelson, R. Nshala, and W. A. Rodgers, ‘The Evolution and Reform of Tanzanian Wildlife Management’ (2007) 5 Conservation and Society 232–61. 15 See A. Gillespie, Conservation, Biodiversity and International Law (Cheltenham: Edward Elgar, 2011). 16 Declaration of the United Nations Conference on the Human Environment, Stockholm, 1972, Principle 2, emphasis added. 17 D. Evans, A History of Nature Conservation in Britain (London, Routledge, 2nd edn. 1992), 150. 18 Among others: Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, 161 UNTS 193 (1940); African Convention on the Conservation of Nature and Natural Resources, 1001 UNTS 4 (1968); Convention on International Trade in Endangered Species of Wild Fauna and Flora, 983 UNTS 243 (1973); Convention on the Conservation of Migratory Species of Wild Animals, 1651 UNTS 333 (1979); Convention on the Conservation of European Wildlife and Natural habitats, ETS No. 104 (1979).

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nature conservation 463 conservation of wild birds, protecting ‘all species of naturally occurring birds in the wild state in the European territory of the Member States’ to which the European Economic Community Treaty (as it was then) applied.19 Broadly speaking, wildlife law presents nowadays common features worldwide owing to international (binding and non-binding) instruments steering (to certain extent) the approaches adopted at national level. Needless to say, national laws (in certain cases required by express constitutional provisions)20 have also helped to shape international wildlife law. However, each state has evolved at a different pace when it comes to integrating biodiversity protection requirements into its legal system. In addition, states maintain disparities insofar as protected areas and species are attached to their jurisdiction (either mainland or marine zones) the exception being the EU Natura 2000 network created by Council Directive 92/43/EEC of 21 May 1992, on the conservation of natural habitats and of wild fauna and flora, which may be regarded as one of the most ambitious current system for the protection and harmonisation of wildlife law. The protection of wildlife has traditionally been based on two distinct albeit logically intertwined pillars that have not evolved in parallel over the last centuries. On the one hand, the designation of protected areas; on the other, the protection of species. None of the two aforesaid approaches can be conceived in static fashion. They both transcend particular species, habitats, or ecological areas by focusing on the complex functioning of the communities concerned which is a more demanding object to protect. As the COP to the Convention on Biological Diversity (CBD) has indicated, the conservation and restoration of those interactions and processes ‘is of greater significance for the long-term maintenance of biological diversity than simply protection of species’.21 By reference to in situ or ex situ approaches,22 different techniques are commonly employed to protect wildlife, such as the classification of protected sites (and buffer zones), the setting out of prohibitions regarding harming activities, hunting methods, or trade, the protection of key seasons for the reproduction and rearing of species, the listing of priority species and their protection regardless of the previous designation of protected sites, and the restrictive application of certain exemptions provided other interests or values require greater safeguard.23 Further activities regarding the management of wildlife are based on different plans adopted at various decision-making levels (e.g. national, regional, or local). The present chapter is divided into three main sections. The first one concerns biodiversity’s notion and components. The second section refers to the relationship between protected sites and wildlife species since the interplay between these two fields has been the standard approach in a majority of national laws, albeit the Convention on Biological Diversity24 (and national laws) provide a wider angle as they nowadays focus on ‘ecosystems’, that is to say, dynamic complexes of plant, animal, and micro-organism communities 19 Article 1. 20 See, for instance, Art. 24 Constitution of the Republic of Angola (1992); Art. 41 Constitution of Argentina (1853); or Art. 67 Constitution of the Republic of Thailand (2007). 21 Decision V/6, Annex B, Principle 5, emphasis added. 22 See Arts. 8–9 CBD. 23 See, for instance, Wildlife Protection Law of the People’s Republic of China (2016); Vietnam Biodiversity Law No. 20/2008/QH12 (2008); Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora. 24 1760 UNTS 79 (CBD).

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464 agustín garcía-ureta and their non-living environment. The third section concerns the range of specific measures designed to protect species in their various forms (e.g. prohibitions) and other related matters such as trade, the widespread effect of invasive species in a globalized world, or the debate on the application of market mechanisms to wildlife protection.

22.2 Protected Objects 22.2.1 Wildlife The International Union for the Conservation of Nature (IUCN) defines ‘wildlife’ as ‘[l]iving things that are neither human nor domesticated’.25 The term ‘wildlife’ is employed in this chapter as a notion referring to untouched habitats and ecosystems (either terrestrial or marine); and fauna and flora not subject to human intervention (unlike domesticated species). However, owing to the apparent pressure caused by humankind wildlife also encompasses areas, habitats, and ecosystems subject to anthropic traits (with varying degrees of effects). In fact, certain wildlife conservation instruments26 aim at integrating the protection of wildlife with the carrying out of human activities in natural areas where habitats and species occur. Likewise, other texts27 address both natural and man-made areas (e.g. irrigated lands; or irrigation channels with natural vegetation cutting through wet meadows).28

22.2.2 Biological Diversity 22.2.2.1 Notion Nowhere does the CBD employ the term ‘wildlife’ albeit it refers, within the notion of ‘genetic resources’, to ‘the populations of . . . wild species’.29 The word ‘wilderness’ is also employed in Annex I to the CBD for the identification of components of biological diversity important for its conservation and sustainable use,30 but no list of such components is provided in the convention. The CBD mainstreams the notion of ‘biological diversity’ in legal practice going beyond a mere description of species as it is defined as the ‘variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part’, including ‘diversity within species, between species and of ecosystems’.31 Therefore, biodiversity is a dynamic notion that covers four basic, factors,

25 https://www.iucn.org/downloads/en_iucn__glossary_definitions.pdf. 26 For instance, UNESCO network of Biosphere Reserves, available at http://unesdoc.unesco.org/ images/0010/001038/103849Eb.pdf; IUCN ‘Category VI Protected area with sustainable use of natural resources’; or the Framework Convention on the Protection and Sustainable Development of the Carpathians, available at http://www.ecolex.org (TRE-001374). 27 Convention on Wetlands of International Importance especially as Waterfowl Habitat, 996 UNTS 245 (1971) (known as the ‘Ramsar Convention’). 28 Resolution VIII.11, 2002, at para. 23(b). 29 Article 2 CBD. 30 Articles 8 and 9, respectively, CBD. 31 Article 2 CBD (emphasis added).

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nature conservation 465 (a) species, (b) ecosystems, (c) genetic diversity,32 and (d) their subsequent interactions. However, unlike international or regional Conventions,33 or national laws that solely concern wild species,34 the CBD refers to the variability of either wild or domesticated species.

22.2.2.2 Dimensions of Biodiversity’s Intrinsic Value The CBD manifests the importance of biodiversity as an ‘intrinsic value’. Although it does not provide a definition, it is significant that this assertion appears in the very first recital to the preamble as an acknowledgement that it is in principle independent from its usefulness to humankind.35 In other words, the CBD adopts ecocentrism by assigning such intrinsic value to systemic entities such as ecosystems or species and by emphasizing that b iodiversity is essential for maintaining ‘life sustaining systems of the biosphere’.36 However, biodiversity has also ‘critical importance’ for meeting the needs of humankind. In fact, the same first recital to the CBD manifests that biodiversity encompasses an array of other values pertinent for humankind (‘ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values’). The CBD also requires states to facilitate access to genetic resources albeit ‘for environmentally sound uses’.37 Admittedly, this represents a more anthropocentric approach,38 but it is also recognition that humankind is inextricably linked to biodiversity. The conservation of biological diversity is a ‘common concern of humankind’.39 This notion is not repeated anywhere in the CBD. The Convention contains an implicit tension between two interests. On the one hand, biodiversity’s intrinsic value transcends states’ own boundaries as it affects the whole biosphere.40 The objectives of sustainable use of its components, the fair and equitable sharing of the benefits arising out of the utilization of genetic resources (as developed by the Nagoya Protocol),41 several key obligations in the CBD, and, last but not least, its jurisdictional scope also confirms biodiversity’s transboundary dimension.42 On the other hand, however, the CBD is rooted in well-established principles underpinning other international law instruments such as the Rio Declaration on Environment and 32 On this topic see the contribution by A. Saab to this volume. 33 For instance, Convention on the Conservation of Migratory Species of Wild Animals, 1651 UNTS 333 (1979); Convention on the Conservation of European Wildlife and Natural Habitats, ETS No. 104; Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds; Council Directive 92/43/ EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora; Convention for the Conservation and Management of the Vicuna, available at http://www.ecolex.org (TRE-000102). 34 See e.g. New Zealand Wildlife Act 1953 (Public Act 1953 No. 31); Peruvian Law No. 30.203 declaring the protection and conservation of the Andean condor of national interest and public necessity; Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds. 35 L. Glowka, A Guide to the Convention on Biological Diversity (IUCN-The World Conservation Union, 1994), 9. 36 Second recital to the preamble. 37 Article 15.1 CBD. 38 P. Birnie, A. Boyle, and C. Redgwell, International Law & the Environment (Oxford: Oxford University Press, 2009), 618. 39 Third recital to the preamble. 40 Glowka, A Guide to the Convention on Biological Diversity, at 10. 41 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; available at http://www.ecolex.org (TRE-155959). 42 See Art. 4(b) CBD.

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466 agustín garcía-ureta Development, that is, that states have ‘the sovereign right to exploit their own resources pursuant to their own environmental policies’,43 and that they enjoy sovereign rights over their own biological resources.44

22.3 The Interplay Between Wildlife and Protected Areas 22.3.1 The Transition from Nature Wonders to Wildlife Conservation Wilderness areas have traditionally been a source of food and supplies for human communities. The increasing dominion over nature rapidly motivated the ensuing designation of certain areas owing to the wonders they sheltered.45 Whilst a relatively modest number of legal instruments required the designation of protected areas during the first half of the twentieth century (together with others targeting different species),46 this trend progressively gathered momentum after the 1950s,47 albeit with different impetus.48 Unlike the original and subsequent waves of designations, nowadays the main reasons for their selection basically concern the ecological features of sites (e.g. species, habitats diversity, and ecosystems services). In other words, even though the preservation of large parcels of land may still justify the selection of sites, they are ancillary to biodiversity richness and ecosystems functionality. The designation of sites is not devoid of inconsistencies affecting wildlife. A classification certainly helps to identify a portion of the territory as a result of its singular features (resting areas for migrating species, sites guaranteeing physical, biological, or genetic factors essential to species’ life and reproduction) and therefore to ensure protection from external interferences or disturbances that otherwise could impair or even extinguish their ecological functions or existence (e.g. wetlands, or particular animal species). In fact, the obligation to publish the boundaries of those areas prima facie guarantees their particular status vis-à-vis other areas and helps to draw a distinction between those that may require additional protection to

43 ‘Rio Declaration on Environment and Development’, 13 June 1992, UN Doc. A/CONF.151/26. Rev.1 (‘Rio Declaration’), Principle 3 (emphasis added). 44 Fourth recital to the preamble to the CBD. 45 Hot Springs Reservation (Arkansas, 1832), Yellowstone (US, 1872), Banff National Park (Canada, 1885), Picos de Europa (Spain, 1918), Setonaikai (Japan, 1934) or Nahuel Huapi (Argentina, 1934). The first whale sanctuary was the Indian Ocean Sanctuary (1979). 46 In Japan, the National Parks Law was enacted in 1931. 47 In Kenya, the National Parks Ordinance was adopted in 1945 whilst in the United Kingdom the National parks system was established with the National Parks and Access to the Countryside of 1949. Japan replaced its 1931 Law with the 1957 Natural Parks Law. Malaysia adopted the Protection of Wildlife Act in 1972 and the National Parks Act in 1980. Spain enacted a Law on protected areas in 1975 whilst Argentina reorganized its system of protected areas by Decree-law 18.594/70. 48 For instance, the United Kingdom designated its first ten national parks in the 1950s whilst Finland designated eleven in 1982; by contrast, Kenia classified fifteen national parks between 1946 and 1985.

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nature conservation 467 preserve their pristine conditions in comparison with others that may sustain uses compatible with wildlife preservation (e.g. raising of cattle, timber exploitation, or agriculture).49 However, the designation of sites does not per se provide effective protection, as reflected in the list of measures for in-situ conservation required by the CBD.50 The designation of areas may detach them from the rest of the territory leading to their isolation, the final outcome being a mosaic of more or less iconic sites without functional bonds.51 Competition for land, population pressure, and poor governance reinforce the characterization of protected areas as ‘islands’.52 In fact, one of the challenges wildlife faces nowadays is the lack of corridors helping species to gain access to larger distribution areas as climate change projections become apparent.53 A further concern is the completeness of designations owing to the difficulties to classify marine areas (e.g. under the International Maritime Organisation (IMO),54 the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean,55 or EU Natura 2000). Whilst the selection of terrestrial sites may be relatively simple marine areas are generally confronted with limited knowledge of the seas and in particular of species (e.g. migratory ones). The EU Habitats Directive acknowledges this difficulty by requiring that for aquatic species which range over wide areas, protected sites are to be proposed ‘only where there is a clearly identifiable area representing the physical and biological factors essential to their life and reproduction’.56 Whilst it may be easy to resolve that certain zones support specific populations requiring the designation of marine areas, it may be much more difficult to conclude that such areas are essential for the biology of those populations.57 The interplay between species, habitats, and ecosystems may encumber classifications. Greater difficulties apply to the establishment of marine protected zones in areas beyond national jurisdiction.58

22.3.2 Legal Definition and Criteria for Designation A standard but arguably all-embracing notion of ‘protected area’ can be found in the CBD, according to which it is a ‘geographically defined area which is designated or regulated and managed to achieve specific conservation objectives’.59 The definition mainly focuses on the ‘physical’ characteristics of an area which would require a formal demarcation of boundaries 49 Protocol on Sustainable Forest Management to the Framework Convention on the Protection and Sustainable Development of the Carpathians, available at http://www.ecolex.org (TRE-156927). 50 Article 8. 51 As considered below, the IUCN categories employ the verb ‘set aside’ on three different occasions. 52 N. Dudley (ed.), Guidelines for Applying Protected Area Management Categories (Gland: IUCN, 2008), 37. 53 CDB COP 10 Decision X/31, para. 44(a). 54 Resolution A.982(24) Revised guidelines for the identification and designation of Particularly Sensitive Sea Areas (PSSAs). 55 1102 UNTS 27. 56 Article 4(1). 57 S. Luk and S. Gregerson, ‘Marine Species Protection and Management in the European Union: Who Will Save Our Dolphins’ in C.-H. Born and others, The Habitats Directive in its EU Environmental Law Context: European Nature’s Best Hope (London: Routledge, 2015), 399–416, at 407–8. 58 CBD COP Decision X/31, para. 22. 59 Article 2 CBD (emphasis added).

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468 agustín garcía-ureta as mentioned before. This approach differs from the notion of ‘ecosystem’, which does not correspond to the term ‘ecological zone’ but to ‘any functioning unit at any scale’.60 In addition, the CBD notion is devoid of clarification as to its scope (e.g. whether it encompasses the interaction among wildlife elements or ecosystems services). Third, unlike other international or regional instruments, nowhere does the CBD provide a list of wildlife values that could (or should) motivate the designation of a protected area. Likewise, the objectives that may prompt the classification of an area are also undefined. To sum up, the CBD definition of ‘protected area’ is confusing. An area may be classified but does not have to be regulated and managed,61 and vice versa, even though specific conservation objectives need to be achieved.62 The lack of detail regarding those objectives reinforces the view that that notion is to be conceived as the ‘lowest common denominator’.63 In contrast with the CBD, the concept of protected areas has been elaborated in greater detail by the IUCN with the purpose to establish a standard by reference to six categories (endorsed at the Conference of the Parties to the CBD).64 The categories are as follows: (1) Category Ia (Strict nature reserve). Category Ia are strictly protected areas set aside to protect biodiversity and also possibly geological/geomorphological features, where human visitation, use, and impacts are strictly controlled and limited to ensure protection of the conservation values. Such protected areas can serve as indispensable reference areas for scientific research and monitoring. (2) Category Ib (Wilderness area). Category Ib are usually large unmodified or slightly modified areas, retaining their natural character and influence, without permanent or significant human habitation, which are protected and managed so as to preserve their natural condition. (3) Category II (National park). Category II are large natural or near natural areas set aside to protect large-scale ecological processes, along with the complement of species and ecosystems characteristic of the area, which also provide a foundation for environmentally and culturally compatible spiritual, scientific, educational, recreational, and visitor opportunities. (4) Category III (Natural monument or feature). Category III are areas set aside to protect a specific natural monument, which can be a landform, sea mount, submarine cavern, geological feature such as a cave, or even a living feature such as an ancient grove. They are generally quite small protected areas and often have high visitor value. (5) Category IV (Habitat/species management area). Category IV aims to protect particular species or habitats and management reflects this priority. Many category IV protected areas will need regular, active interventions to address the requirements of particular species or to maintain habitats, but this is not a requirement of the category.

60 CBD Decision V/6, Annex A, para. 33. 61 However, the COP has called for all protected areas to have effective management. COP7 Decision VII/s8, Goal 1.4 of the Programme of Work on Protected Areas. 62 Glowka, A Guide to the Convention on Biological Diversity, at 24. 63 A. Gillespie, Protected Areas and International Environmental Law (Leiden: Martinus Nijhoff, 2007), 27. 64 CBD Decision VII/28. Protected Areas.

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nature conservation 469 (6) Category V (Protected landscape/seascape). Category V is a protected area where the interaction of people and nature over time has produced an area of distinct character with significant ecological, biological, cultural, and scenic value: and where safeguarding the integrity of this interaction is vital to protecting and sustaining the area and its associated nature conservation and other values. (7) Category VI (Protected area with sustainable use of natural resources). Category VI conserve ecosystems and habitats, together with associated cultural values and traditional natural resource management systems. They are generally large, with most of the area in a natural condition, where a proportion is under sustainable natural resource management and where low-level non-industrial use of natural resources compatible with nature conservation is seen as one of the main aims of the area. According to the IUCN, only those areas where the main objective is conserving ‘nature’ (biodiversity at genetic, species, and ecosystem level, and geodiversity, landform, and broader natural values) can be considered protected areas. In the light of the foregoing classification, it should be observed that assignment of a category depends ‘more or less closely’ on management objectives.65 In other words, protected areas are attached to a certain category based on intended future use, rather than the present condition, or are sometimes not managed according to the objectives of their designations.66 There may be a wide range of values requiring the designation of a protected area and they may evolve over time. For instance, the Convention on Wetlands of International Importance Especially as Waterfowl Habitat has shifted the emphasis from waterfowl populations to a wide range of ecological values and habitats types of wetlands.67 Ecosystems (and the services they provide), habitats, and wild flora and fauna species are the key targets for the classification of a protected area in conjunction with scientific and recreational purposes (as IUCN Category II (national park) indicates) or even sacred values.68 A combination of ecological (e.g. uniqueness, rarity, dependency, representativeness) but also social, cultural, economic (e.g. support of traditional subsistence or food production activities), scientific, and educational criteria is also found in the case of Particularly Sensitive Sea Areas classified by IMO.69

22.3.3 Size of Protected Areas and Wildlife Protection The size of protected areas depends on a variety of factors (e.g. availability of land or water; representativeness of habitats and species; neighbouring human infrastructures) but has an 65 Dudley, Guidelines for Applying Protected Area Management Categories, at 9–11. 66 S. J. Leroux and others, ‘Global Protected Areas and IUCN Designations: Do the Categories Match the Conditions?’ (2010) 142 Biological Conservation 609. 67 Recommendation 4.2: Criteria for Identifying Wetlands of International Importance (1990); Gillespie, Protected Areas and International Environmental Law, at 49. 68 Dudley, Guidelines for Applying Protected Area Management Categories, at 64; B. Verschuuren, R. Wild, J. McNeely, and G. Oviedo (eds.), Sacred Natural Sites: Conserving Nature and Culture (London: Earthscan, 2010). 69 IMO Resolution A.982(24), ‘Revised Guidelines for the Identification and Designation of Particularly Sensitive Sea Areas’, para. 4.

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470 agustín garcía-ureta apparent bearing on wildlife. It may be relatively uncomplicated to designate vast territories (including marine waters) in large countries (e.g. the United States,70 Canada, Australia, China, or Russia) guaranteeing the lack of human influence. Other densely populated states (e.g. the Netherlands, United Kingdom, Malta, or Japan) have in principle no other choice than making compatible the protection of wildlife with housing or farming (e.g. the United Kingdom’s fifteen national parks host approximately 365.000 inhabitants).71 Nevertheless, even in areas where the earth and its community of life are untrammelled by people, where people are visitors ‘who do not remain’,72 pollution impacts from recreational activities and in general tourism can resemble a concentrated urban area.73 As mentioned above, the CBD does not refer to the potential size of protected areas but to their identity from a geographical viewpoint. The Convention on the Conservation of European Wildlife and Natural Habitats speaks of areas contributing to the survival of threatened species or containing an important sample of endangered habitat types.74 Similarly, the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region75 requires the parties to establish protected areas to preserve rare or fragile ecosystems and depleted, threatened or endangered flora and fauna as well as their habitats.76 Other Conventions have as their objective habitats in danger of disappearance ‘in their natural area of distribution’ or which have a ‘reduced natural area of distribution’, but have not prescribed a critical length as a prerequisite for designation (e.g. Protocol concerning Specially protected Areas and Biological Diversity in the Mediterranean77). The Convention Concerning the Protection of the World Cultural and Natural Heritage78 refers to ‘adequate size’ of any property listed under the Convention since integrity is a ‘crucial determinant of outstanding universal value’.79 A similar approach has been adopted by the Convention on the protection of the Alps.80 IUCN categories Ib (‘large’), II (‘usually large’), III (‘quite small’), and VI (‘generally large’) include a reference to their size albeit they do not specify an essential surface area. According to IUCN, Category IV areas are ‘often small’ whereas Category V are ‘usually large’. However, it has been acknowledged that ‘very few’ protected areas are large enough to conserve entire ecosystems, with the associated migration routes or watershed functions.81 It could be argued that size should be sufficiently large to guarantee effective ecological functioning and avoid genetic and ecosystems impairment, complying with the CBD. Although several small areas could alternatively offer real protection they should share

70 US Papahanaumokuakea Marine National Monument comprises 1,508,870 Km2. 71 http://www.nationalparks.gov.uk/students/whatisanationalpark/factsandfigures. 72 US Wilderness Act of 1964, s. 2(c). 73 D. Antolini, ‘National Park Law in the U.S.: Conservation, Conflict, and Centennial Values’ (2009) 33 William & Mary Environmental Law and Policy Review 851; P. F. J. Eagles, S. F. McCool, and C. D. A. Haynes, Sustainable Tourism in Protected Areas: Guidelines for Planning and Management (Gland: IUCN, 2002). 74 Recommendation No. 16 (1989) of the standing committee on areas of special conservation interest. 75 Available at http://www.ecolex.org (TRE-000892). 76 Article 14. 77 Available at http://www.ecolex.org (TRE-001220). 78 1037 UNTS 151. 79 S. Marsden, ‘Wilderness Protection Europe and the Relevance of the World Heritage Convention’ in Bastmeijer, Wilderness Protection in Europe, 137–59, at 146–7. 80 Available at http://www.ecolex.org (TRE-001126). 81 Dudley, Guidelines for Applying Protected Area Management Categories, at 34.

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nature conservation 471 physical and functional bonds.82 A more specific criterion can be found in other instruments such as the Framework Convention on the Protection and Sustainable Development of the Carpathians,83 which requires a minimum of 20 ha for the selection of virgin forests.84 At national level, Spanish Law 5/2007, on the network of National Parks, also sets out minimum surface areas: (a) terrestrial or maritime-terrestrial national parks situated in mainland Spain (≥ 15,000 ha.); (b) terrestrial or maritime-terrestrial national parks situated in islands (≥ 5,000 ha.); and (c) national parks in maritime waters (≥ 20,000 ha.). Similarly, Polish and Finish Acts on Nature Protection require a surface area of not less than 1,000 ha, whilst the US Wilderness Act 1964 imposes a threshold of at least 5,000 acres (2023 ha.) of land.85 As far as the EU experience is concerned, the Wild Birds Directive requires the Member States to designate the ‘most suitable territories in number and size’ as special protection areas (SPAs) for the conservation of these species in the geographical sea and land area where the Directive applies.86 However, the Directive does not prescribe a minimum size, the territorial surface of an SPA basically depending on the presence of birds and the features of the area (e.g. wetland ecosystem). Arguably, the locus classicus is the marshes of Santoña case where the Court of Justice of the European Union (CJEU) held that a nature reserve classified by the Spanish authorities did not cover the whole of the marshes, since an area of 40,000m2 was excluded. According to the CJEU, that land was of particular importance for aquatic birds in danger of extinction within the meaning of the directive, since a steady reduction in the space available for nesting had been observed in other marshland areas close to the coast.87 Similarly, the CJEU has held that SPA classifications cannot be the result of an isolated study of the ornithological value of each of the areas in question but must be carried out in the light of the ‘natural boundaries of the wetland ecosystem’.88 The case-law has also rejected the drawing up of comparisons between the designated surface in a particular Member State with other states as a justification for the (limited) territorial designation of SPAs.89 The Habitats Directive does not prescribe a minimum territory for the classification of Special Areas of Conservation (SACs). However, certain key definitions do take into account the need to preserve natural habitats of EU interest owing to their ‘small natural range’.90 In the case of animal species (including aquatic species) ranging over ‘wide areas’ SACs must correspond to places within the natural range of such species which present the physical or biological factors essential to their life and reproduction. The conservative status of a natural habitat is regarded as ‘favourable’ when its natural range and areas it covers within that

82 V. Mauerhofer, E. Galle, and M. Onida, ‘The Alpine Convention and Wilderness Protection’ in Bastmeijer, Wilderness Protection in Europe, at 199–22, 206. 83 Available at http://www.ecolex.org (TRE-001374). 84 COP4-Fourth Meeting of the Conference of the Parties to the Carpathian Convention. 85 US Wilderness Act 1964, s. 2(c); 16 U.S.C. § 1131(c) (2006). 86 Article 4(1) (fourth paragraph) (emphasis added). 87 Case C-355/90, Commission v Spain (ECLI:EU:C:1993:229), para. 29; A. García-Ureta, Derecho Europeo de la Biodiversidad (Madrid: Iustel, 2010), 207–53; N. de Sadeleer, ‘Habitats Conservation in EC Law-From Nature Sanctuaries to Ecological Networks’ (2005) 5 The Yearbook of European Environmental Law 215. 88 Case C-418/04, Commission v Ireland (ECLI:EU:C:2007:780), paras. 131 and 142–5. 89 Case C-235/04, Commission v Spain (ECLI:EU:C:2007:386). 90 Article 1(c)(ii).

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472 agustín garcía-ureta range ‘are stable or increasing’.91 In a similar vein, the conservation status of a species is taken as ‘favourable’ when the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and there is, and will probably continue to be, ‘a sufficiently large habitat’ to maintain its populations on a long-term basis.92 By contrast, Member States whose sites hosting one or more priority natural habitat types and priority species (as indicated in the corresponding annexes to the Directive) represent more than 5 per cent of their national territory may request that the criteria for the selection of SCAs be applied more flexibly in selecting all the sites in their territory.93

22.3.4 Wildlife and Connectivity There is no standard definition of ‘corridor’ in international or regional law. The IUCN describes it as a ‘[w]ay to maintain vital ecological or environmental connectivity by maintaining physical linkages between core areas’.94 The duty to connect sites challenges traditional views of protected areas as mere nature sanctuaries confined within concrete boundaries. In addition, species protection does not depend on the previous classifications of sites. The setting up of corridors (and buffer zones) is also becoming of the utmost importance in view of climate change concerns as species are already searching for more suitable latitudes.95 However, corridors face a series of obstacles. First, territorial fragmentation is one of the key factors affecting wildlife. Increasing urban sprawl and infrastructures (roads, highways, powerlines, railway lines, canals, pipelines) progressively constrain or affect their number and spatial reach.96 Secondly, there are difficulties in achieving connectivity in cases involving species with large distribution areas (e.g. bears, wolves, or European bison) in states with high population density. The EU Habitats Directive refers to this matter albeit in a rather imprecise way,97 and EU case-law offers contradictory perspectives. On the one hand, the CJEU condemned Spain for allowing a mining project that had created a barrier between two breeding areas of the brown bear owing to noise and vibration. In addition, it also held that open-cast mining operations contributed to isolating sub-populations of capercaillie by blocking communication corridors linking those sub-populations with other populations.98 In a different case the CJEU held that urbanization projects covering ‘an area of less than a hectare’ were not subject to any formalities in France enabling their lack of impact on the

91 Article 1(e) (second paragraph, first indent). 92 Article 1(i) (second paragraph, third indent). 93 Article 4(2) (second paragraph). 94 https://www.iucn.org/downloads/en_iucn__glossary_definitions.pdf. 95 G. T. Peel and others, ‘Biodiversity Redistribution Under Climate Change: Impacts on Ecosystems and Human Well-being’ (2017) 355 Science eaai9214. 96 In Europe, half of the continent’s surface is located within 1.5km, and almost all land within 10km, from a paved road or a railway line. In India 150 elephants were killed by speeding trains between 1987 and 2010. A. Torres, J. A. Jaegerb, and J. C. Alonso, ‘Assessing Large-scale Wildlife Responses to Human Infrastructure Development’ (2016) 113 Proceedings of the National Academy of Sciences of the United States 8472. Elephant Task Force, Securing the future of elephants in India (2010), available at: http:// www.moef.nic.in/downloads/public-information/ETF_REPORT_FINAL.pdf. 97 Article 10. 98 Case C-404/09, Commission v Spain (ECLI:EU:C:2011:768).

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nature conservation 473 conservation of the European hamster to be ascertained.99 Likewise, in a case regarding the effects of a project situated ‘at a considerable distance’ from protected sites (600km), the CJEU held that that fact in no way precluded the applicability of the requirements regarding the assessment of its effects on a migration route for certain fish species present on those sites.100 However, in a case concerning the upgrade of a road in Doñana National Park (Spain) the Court dismissed allegations concerning the lack of protection of the Iberian lynx (owing to several recorded killings) and held that the impacts had been avoided by the construction of a fence on both sides of the road and the creation of road-crossing devices for the species.101 The CJEU has also held, somewhat controversially, that even if the conversion of a natural fluvial ecosystem: into a largely man-made fluvial and lacustrine ecosystem were to have a negative impact on the integrity of sites which are part of the Natura 2000 network, it does not necessarily follow that consent may not be given to the project which causes that conversion.102

Finally, corridors may be undertaken at a scale that hinders close cooperation with local communities and as a result they may perceive them as ‘irrelevant to their livelihoods’103 (e.g. in Africa).104 It remains to be seen whether the setting up of a network (e.g. Biosphere Reserves, Global Geoparks Network, Pan-European Ecological Network, Natura 2000 network, European Network of Biogenetic Reserves) represents something other than a uniform law labelling. By contrasts, networks should ensure that protected areas are (a) equally distributed and, in particular, (b) share physical and functional links following an ecosystemic approach.

22.4 Specific Measures for the Protection of Wild Species Wild species105 have traditionally been at the disposal of human communities as a source of food, means of transport, and a variety of other purposes (e.g. arts and crafts). As humans exploited previously untouched areas (either terrestrial or marine) the uncontrolled and 99 Case C-383/09, Commission v France (ECLI:EU:C:2011:23), para. 35. 100 Case C-142/16, Commission v Germany (ECLI:EU:C:2017:301). 101 Case C-308/08, Commission v Spain (ECLI:EU:C:2010:281); A. García-Ureta, ‘Do All Roads Lead to Doñana? Legal Protection of Proposed Sites of Community Importance under the Habitats Directive’ (2010) 18 Environmental Liability 67. 102 Case C-43/10, Nomarchiaki Aftodioikisi Aitoloakarnanias v Ypourgos Perivallontos, (ECLI:EU:C:2011:651), para. 135 (emphasis added). 103 IUCN, Connectivity Conservation: International Experience in Planning, Establishment and Management of Biodiversity Corridors, at 9; available at: http://cmsdata.iucn.org/downloads/070723_bci_ international_report_final.pdf. 104 G. Bennett and K. Mulongoy, Review of Experience with Ecological Networks, Corridors and Buffer Zones (Secretariat of the Convention on Biological Diversity, Montreal, Technical Series No. 23), 80. 105 This contribution follows the IUCN definition of ‘species’: ‘A group of interbreeding individuals with common characteristics that produce fertile (capable of reproducing) offspring and which are not

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474 agustín garcía-ureta massive killing of species living within their boundaries also prompted (at a slower pace) the enactment of national laws and Conventions for their protection.106 In fact, i nternational Conventions, (including those that were initially conceived to regulate the exploitation of certain species, are nowadays mainly focused on their conservation (e.g. International Convention for the Regulation of Whaling, 1946).107

22.4.1 Legal Status Notwithstanding the direct bonds between habitats, ecosystems, and species, the protection or conservation of wild species poses a wide range of problematic matters. First, their legal categorization. National laws usually distinguish between domesticated and wild species. Wild fauna is, at least formally, defined as res nullius by some states’ civil legislation. Therefore, they are freely hunted or possessed subject to applicable regulations.108 Others grant proprietorship of wild animals to the owner of land on which species are kept (e.g. Botswana and Zimbabwe).109 In other jurisdictions they are classified as ‘public domain’ (Costa Rica, China, or Bolivia),110 those species remaining in the hands of the public authorities. However, the US Supreme Court has regarded the notion of state ownership of wild animals as a ‘fiction’,111 whilst EU law has not directly addressed this matter.112 Arguably, at the international level, an elaborated doctrine on the status of wild species is still lacking. Neither the notion of ‘common concern’ nor of ‘intrinsic value’ in the CBD provides guidance on this matter. Other international law instruments employ different expressions with arguably disparate meanings. The Convention on the Conservation of Migratory Species of Wild Animals declares that wild animals in their innumerable forms are ‘an irreplaceable part of the earth’s natural system’,113 which is in itself a truism owing to the dynamics of migrations. In more specific terms, the Convention on the Conservation of able to interbreed with other such groups, that is, a population that is reproductively isolated from others; related species are grouped into genera’. 106 For instance, the Convention designed to ensure the conservation of various species of wild animals in Africa which are useful for man or inoffensive (1900), available at: https://iea.uoregon.edu/ treaty-text/1900-preservationwildanimalsbirdsfishafricaentxt; UK Grey Seals Protection Act (1914); Ireland’s Wild Birds Protection Act (1930); US Bald Eagle Protection Act of 1940. 107 However, compare this approach with Art. II.a Interim Convention on Conservation of North Pacific Fur Seals 4546 UNTS 298 (1957)). 108 Arts. 610 and 611, respectively, of the Spanish Civil Code. 109 E. Tsioumani and E. Morgera, Wildlife Legislation and the Empowerment of the Poor in Sub-Saharan Africa (2009) FAO Legal Papers Online #77, available at: http://www.fao.org/3/a-bb110e.pdf. 110 Costa Rica, Law 7317, on the conservation of wildlife, Article 3 (first sentence); Art. 3 Wildlife Protection Law of the People’s Republic of China: Art. 2 (second paragraph) Bolivia, Decree-Law 12301, on wildlife, national parks, hunting and fishing. 111 Hughes v Oklahoma, 441 U.S. 322 (1979). However, the US Supreme Court has ruled that a programme requiring raisin producers to turn over a portion of their crop every year to the government amounted to an unconstitutional taking of private property. The Court distinguished this case from a 1929 ruling that had upheld the management of oyster shells. In the Court’s view, oysters were different because they were publicly owned and the state had the absolute right to do what it wanted with oysters. 112 A. García-Ureta, ‘The ECJ Jurisprudence on Nature Protection and Ownership Rights’ in G. Winter (ed.), Property and Environmental Protection (Groningen: Europa Law Publishing, 2016), 56–74. 113 First recital to the preamble.

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nature conservation 475 European Wildlife and Natural Habitats declares that ‘wild flora and fauna constitute a natural heritage . . . of intrinsic value’.114 It has been indicated that the notion of ‘common concern’ in the CBD emphasizes that all humanity has an interest in ensuring the conservation of biological diversity because biological diversity is essential to sustaining all life on earth (‘life sustaining systems of the biosphere’).115 However, it is doubtful whether that notion sheds light on the status of species and, in particular, its potential pre-eminence over other well enshrined principles of international law (i.e. sovereign over natural resources) or other branches of the law (e.g. transport, industry, energy, or town planning) in spite of the duty to carry out an environmental impact assessments (EIAs).116 ‘Common concern’ refers to the existence of mutual responsibilities over certain species that accordingly are no longer under the sole control and criteria for management (or exploitation) of individual states. Nevertheless, this principle is likely to have more direct consequences in a regional rather than in an international context owing to (a) the means to control the application of relevant rules; and (b) the number of actors involved. In this sense, the EU Habitats Directive declares that the adoption of measures intended to promote the conservation of priority species of EU interest is a ‘common responsibility of all Member States’, a wording also present in the EU Wild Birds Directive since 1979.117 In the light of the aforementioned avowal, the CJEU has reacted against attempts to restraint the cross-border nature of the Directives as a result of national laws guaranteeing species protection when the need to preserve the ‘national biological heritage’ justified their conservation. In the case of wild birds, the CJEU has held that the importance of their complete and effective protection throughout the EU, irrespective of the areas they stay in or pass through, makes any national legislation delimiting the protection of wild birds by reference to the concept of ‘national heritage’ incompatible with the EU nature protection legislation.118 The recognition that there is a common responsibility means that the individual Member States accept that a supranational organization (the EU) has arrogated the power to impose key criteria for species classification and protection.

22.4.2 Criteria for Classification A further matter relates to the criteria employed to single out certain species vis-à-vis other species. No international law instrument protects all wild species (strictly speaking, the CBD refers to the ‘variability’ of species but not species as such).119 A majority of international law instruments are focused on a (more or less ample) group of species120 or

114 Fourth paragraph of the preamble (emphasis added). 115 Glowka, A Guide to the Convention on Biological Diversity, at 10. 116 Article 14 CBD. 117 Fourth recital to the preamble (emphasis added). 118 Case 252/85, Commission v France (ECLI:EU:C:1988:202), para. 15; see also case C-240/00, Commission v Finland (ECLI:EU:C:2003:126), para. 16; and case C-507/04, Commission v Austria (ECLI:EU:C:2007:42), para. 103. 119 Birnie, Boyle, and Redgwell, International Law & the Environment, at 652. 120 For instance, African Convention on the Conservation of Nature and Natural Resources, 1001 UNTS 4; Convention on the Conservation of Migratory Species of Wild Animals, 1651 UNTS 333; Protocol Concerning Protected Areas and Wild Fauna and Flora in the Eastern African Region, available at http://www.ecolex.org (TRE-000821).

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476 agustín garcía-ureta on very specific species.121 Other instruments devote particular attention to certain species (endangered and vulnerable) but they also require the protection of (any) wild fauna and flora species. This approach is enshrined in the Convention on the Conservation of European Wildlife and Natural Habitats,122 owing to two factors: (a) many species of flora and fauna of Europe are found outside Europe; and (b) many visiting migratory animals are not confined to Europe but deserve protection.123 The same approach is adopted by regional or national laws.124 The EU protects ‘all species of naturally occurring birds in the wild state in the European territory of the Member States’ to which the (EU) Treaties apply.125 However, the Habitats Directive provides reinforced protection only to certain animals and plants (annexes II and IV, approximately 1,000) while allowing the exploitation of others which are subject to lesser protection (Annex V; over ninety).126 The reference to the ‘European territory’ has been enlarged by the CJEU (in the case of the Wild Birds Directive) by holding that if a subspecies occurs naturally in the wild in the European territory of the Member States to which the Treaty applies, the species to which the subspecies belongs must be considered to be a European species and, consequently, all the other subspecies of the species in question, including those which are not European, will be covered by the Directive.127 According to the CJEU, if the scope of the Wild Birds Directive were to be limited to those subspecies which occur within European territory and did not extend to non-European subspecies, it would be difficult to implement the Directive in the Member States, with the consequent risk that it might not be uniformly applied within the EU.128

22.4.3 The Role of Lists A standard approach to species protection is based upon their listing according to a series of criteria (inter alia danger of extinction, vulnerability or rarity, threatened destruction, modification, or curtailment of their habitats or range; overutilization for commercial, recreational, scientific, or educational purposes).129 The CBD requires states (‘as far as possible and as appropriate’) to identify components of biological diversity important for its conservation and sustainable use having regard to the indicative list of categories set down in Annex I (e.g. species and communities which are threatened: wild relatives of domesticated 121 For instance, the Convention for the regulation of Whaling, 161 UNTS 72; Convention for the Conservation of Antarctic Seals, 1080 UNT 165; Convention for the Conservation of Vicuna, available at www.ecolex.org (TRE-000102); or the Agreement on the Conservation of Polar Bears, available at http:// www.ecolex.org (TRE-000041). 122 Article 2. 123 Explanatory Report to the Convention on the Conservation of European Wildlife and Natural Habitats, para. 17, available at https://rm.coe.int/16800ca431. 124 Article 37 Finland’s Nature Conservation Act 1096/1996; Art. 6 Peru’s Forest and Wildlife Law No. 29763; Art. 1 Ivory Coast Law no. 65-255 of 4 August 1965, concerning the protection of fauna and the practice of hunting. 125 Article 1 (emphasis added). 126 Annexes IV and V, respectively. 127 Article 1 (emphasis added); Case C-202/94, Godefridus van der Feesten (ECLI:EU:C:1996:39), para. 12 (emphasis added). 128 Case C-202/94, Godefridus van der Feesten (ECLI:EU:C:1996:39), paras. 12, 16. 129 US Endangered Species Act, s. 4(a).

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nature conservation 477 or cultivated species).130 The criteria establish a hierarchy according to which species are subsequently classified. However, the setting out of such criteria is just the first step of a process leading to the drafting of lists. Their comprehensiveness depends on the availability of information, species’ variations, imprecision of terms used and measurement error (e.g. IUCN acknowledges that extinction risk has been evaluated for less than 5 per cent of the world’s described species).131 Despite several references to scientific cooperation (including the workings of the Subsidiary Body on Scientific, Technical and Technological Advice),132 the CBD is devoid of references regarding the degree of evidence or scientific knowledge required to identify the abovementioned components.133 By contrast, the Convention on the Conservation of Migratory Species of Wild Animals requires ‘reliable evidence, including the best scientific evidence available’ to list a species as endangered (also for its removal).134 This approach is also adopted at the national level by the US Endangered Species Act, which refers to ‘the best scientific and commercial data available’.135 According to the case-law, this reference is not a standard of ‘absolute certainty’,136 but the relevant agency cannot ignore available biological information, especially if that information is the most current.137 Although not legally binding, a key reference for states, regional organizations (EU), and the scientific community as a whole is currently represented by IUCN ‘Red List’ which classifies each species into a category of threat based on the array of data available:138 (a) Extinct (a taxon is presumed extinct when exhaustive surveys in known and/or expected habitat, at appropriate times throughout its historic range have failed to record an individual). (b) Extinct in the wild (it is known only to survive in cultivation, in captivity or as a naturalized population (or populations) well outside the past range). (c) Critically endangered (it meets any of the criteria for this category, e.g. population size estimated to number fewer than fifty mature individuals, or quantitative analysis showing the probability of extinction in the wild is at least 50 per cent within ten years or three generations, whichever is the longer (up to a maximum of 100 years)). (d) Endangered (it meets any of the criteria for endangered, and it is therefore considered to be facing a very high risk of extinction in the wild, e.g. population size estimated to number fewer than 2,500 mature individuals). (e) Vulnerable (it meets any of the criteria for vulnerable, and it is therefore considered to be facing a high risk of extinction in the wild, e.g. population size estimated to number fewer than 10,000 mature individuals).

130 Annex I (2) CBD. 131 http://www.iucnredlist.org/about/summary-statistics. 132 Article 25 CBD. 133 See Art. 7 CBD. 134 Article III.2 and 3. 135 Section 4. 136 Defenders of Wildlife v Babbitt, 95 8 F. Supp. 670, 680 (D.D.C. 1997). 137 Connor v Burford, 848 F.2d 1441 (9th Cir. 1988); Southwest Center for Biological Diversity v Babbitt, 926 F. Supp. 920, 927 (D. Ariz. 1996). 138 IUCN Standards and Petitions Subcommittee. 2016. Guidelines for Using the IUCN Red List Categories and Criteria. Version 12. Prepared by the Standards and Petitions Subcommittee; available at http://www.iucnredlist.org/documents/RedListGuidelines.pdf. Currently there are more than 79,800 species on the IUCN Red List, and more than 23,000 are threatened with extinction, including 41% of amphibians, 34% of conifers, 33% of reef building corals, 25% of mammals, and 13% of birds.

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478 agustín garcía-ureta (f) Near threatened (it has been evaluated against the criteria but does not qualify for critically endangered, endangered or vulnerable now, but is close to qualifying for or is likely to qualify for a threatened category in the near future. (g) Least concern (it has been evaluated against the criteria and does not qualify for critically endangered, endangered, vulnerable, or near threatened). (h) Data deficient (there is inadequate information to make a direct, or indirect, assessment of its risk of extinction based on its distribution and/or population status; this category is not a category of threat). (i) Not evaluated (when it has not yet been evaluated against the criteria). The listing of species may be set out in international Conventions (e.g. Convention on the Conservation of European Wildlife and Natural Habitats), in primary national legislation (e.g. EU Wild Birds and Habitats directives) or through ancillary regulations (e.g. the United States, Guatemala, or Chile).139 International lists may be difficult to draw up owing to the diversity of interests and actors involved. However, once adopted they have an undeniable harmonizing effect. Despite criticisms regarding the difficulties to determine the status of species, their limited scope or unintended side effects (e.g. landowners may destroy their habitats in view of future protection and property restraints),140 lists encompass a series of non-exhaustive positive consequences: (a) they help to underscore species that may be under higher risk of extinction or impairment; (b) they are also flexible inasmuch as uncertainty on the state of species may paradoxically encourage further studies, this matter being well exemplified by IUCN Red list;141 (c) they steer measures specifically adopted for the protection of species, limiting the activities that may affect them (by banning or limiting development projects after an environmental assessment) or by imposing habitats or ecosystem services compensation for likely losses; and (d) they provide policy-makers and the judiciary with tangible references for performing their respective tasks (e.g. reviewing the legality of measures or exceptions affecting them).

22.4.4 Mechanisms for Protection: General Prohibitions and Limited Exemptions As indicated above, the protection of habitats and species are clearly intertwined. In principle, the latter enjoy the shelter provided by habitats critical to its conservation. It is for this reason that wildlife protection is not merely addressed at existing species, habitats, and ecosystems. The CBD requires the parties to rehabilitate and restore degraded ecosystems and promote the recovery of threatened species but it neither defines those notions nor demands recreation of ecosystems already destroyed nor sets out a nexus between d egradation and a possible declassification of protected areas. However, it should be noted that (a) those basic 139 Article 24 Decree 4–89; Regulation 29, for the classification of wild species, respectively. 140 H. P. Possingham and others, ‘Limits to the Use of Threatened Species Lists’ (2002) 17 Trends in Ecology & Evolution 503, at 505; D. Lueck and J. A. Michael, ‘Pre-emptive Habitat Destruction Under The Endangered Species Act’ (2003) XLVI Journal of Law and Economics 27. 141 A. S. L. Rodrigues and others, ‘The Value of the IUCN Red List for Conservation’ (2006) 21 Trends in Ecology & Evolution 71.

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nature conservation 479 in-situ and ex-situ obligations refer to any kind of degradation be it natural or man-made and (b) that the COP has affirmed that restoration refers to the process of managing the recovery of an ecosystem that has been degraded, damaged or ‘destroyed’.142 Species are to be protected regardless of previous classifications of sites (e.g. sea turtles spawning in beaches used by bathers).143 National case-law has made it clear that critical habitats can include areas occupied by species at the time of being listed as endangered, as well as areas ‘unoccupied’ by the species at that time.144 Likewise, there is no obligation to show that dens are already in use by a species (e.g. polar bear) in order to be included in the designation of critical habitats.145 Areas close to man-made infrastructures, such as industrial compounds, may deserve equal recognition than others located in more or less pristine or well preserved habitats. The protection of species regardless of the prior designation of a protected site certainly highlights the importance of singular species but arguably poses a formidable task for states and ultimately evinces the weaknesses of wildlife protection laws vis-à-vis many other policies affecting them. A basic tool for the protection of species is the setting out of a series of prohibitions subject to a limited number of exceptions and administrative requirements to verify that in effect the conditions for the grant of such exclusions are met.146 The rationale underlying this usual approach in international and national law is simple but prima facie effective since all species concerned are protected (at least on paper), the burden of proof lying on those invoking an exception. Bans encompass a wide range of activities (e.g. the taking of certain species from the wild, the use of methods of large-scale or non-selective capture or killing and hunting, including means of transport,147 or their marketing owing to the excessive pressure which they may exert on the numbers of the species concerned). Different objects that are inextricably linked with species are also protected (e.g. nests, eggs, or dens). The proscriptions may also affect complete (or key) life cycles (e.g. migration and rearing seasons). However, hunting restrictions may be waived allowing traditional hunting by local communities to the extent that it ensures their subsistence.148 The enforcement of applicable bans basically depends on the existence of sufficient manpower, resources, and authority. These weaknesses are not restricted to developing countries. Implementation has to overcome deep-rooted traditions that may be difficult to bring to an end (e.g. prohibited hunting methods in Southern Europe occasionally favoured by the legislature, or the extension of hunting periods once migration is well under way).149 The scope of exceptions depends upon objectives taking precedence over those referring to species. It is for this reason that public health or safety, or the protection of crops, livestock, forests, fisheries, and water are usually mentioned as the criteria that can be invoked to 142 Decision XIII/5, Annex, II.4. 143 Case C-103/00, Commission v Greece. 144 Markle Interests, L.L.C. v U.S. Fish and Wildlife Service, No. 14–31008 (5th Cir. 30 June 2016). 145 Alaska Oil and Gas Ass’n v Jewell, No. 13–35919 (9th Cir. 29 February 2016). 146 The Indian Wildlife (Protection) Act, 1972, s. 12; US Endangered Species Act, s. 10; Act relating to wildlife and wildlife habitats (Norway), s. 3. 147 Uganda Wildlife Act 1996, s. 54; Art. 5 Protocol Concerning Protected Areas and Wild Fauna and Flora in the Eastern African Region, available at http://www.ecolex.org (TRE-000821). 148 Article III.5.c) CMS. 149 Case C-79/03, Commission v Spain (ECLI:EU:C:2004:507) (limed twigs); Case C-76/08, Commission v Malta (ECLI:EU:C:2009:535) (hunting periods); Case C-135/04, Commission v Spain (ECLI:EU:C:2005:374) (hunting and migration periods).

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480 agustín garcía-ureta exempt the application of prohibitions. Nonetheless, exceptions can only be applied on a case-by-case basis, this requirement being coherent with (a) the protection of each and every species regardless of its location,150 and also with (b) the command that the application of exceptions cannot be detrimental to the maintenance of the populations of the species concerned at a favourable conservation status in their natural range.151

22.4.5 Wandering and Alien Species In a globalized world, species know no physical frontiers. Trade, transport, tourism, or oil exploitation are activities (among others) that greatly facilitate the spread of species that do not belong to native environments (non-native). In addition, they may threaten indigenous biological diversity and ecosystems services (alien invasive species, e.g. by altering species composition or physical habitat components). The latter species are found in all taxonomic groups (e.g. introduced viruses, fungi, algae, mosses, ferns, higher plants, invertebrates, fish, amphibians, reptiles, or birds). Despite the ‘considerable lack of knowledge’ with regard to understanding the negative long-term effects of biological invasions,152 and in particular the economic losses they produce,153 states regard their threat to biodiversity as being second only to that of habitat loss.154 Different matters would be (a) whether it is feasible to eradicate or even contain them or (b) the effects of measures supposedly aimed at controlling exotic species on trade and transport. In this respect, the CJEU has held that measures to preserve an indigenous animal population ‘with distinct characteristics’ contribute to the maintenance of biodiversity by ensuring the survival of the population concerned. By so doing, they are aimed at protecting the life of those animals and are capable of being justified as legitimate exceptions to the prohibition of measures having an effect equivalent to a quantitative restriction. From the point of view of such conservation of biodiversity, it is immaterial whether the object of protection is a separate subspecies, a distinct strain within any given species or merely a local colony, so long as the populations in question have characteristics distinguishing them from others and are therefore judged worthy of protection either to shelter them from a risk of extinction that is more or less imminent, or, even in the absence of such risk, on account of a scientific or other interest in preserving the pure population at the location concerned.155 150 Article 8(c) CBD. 151 Article 16(1) Directive 92/43. 152 European Environment Agency, ‘The Impacts of Invasive Alien Species in Europe’, EEA Technical Report No 16/2012, at 9, available at: https://www.eea.europa.eu/publications/impacts-of-invasive-alienspecies. 153 In the EU alone, lost output owing to invasive species, health impacts, and expenditure to repair the damage caused has been estimated at 12 billion Euros/year over the past twenty years. M. Kettunen and others, Technical Support to EU Strategy on Invasive Alien Species (IAS). Assessment of the impacts of IAS in Europe and the EU (Institute for European Environmental Policy, Brussels, 2009), 27. 154 CBD, Invasive Alien Species. Status, impacts, and trends of alien species that threaten ecosystems, habitats, and species; see https://www.cbd.int/doc/meetings/sbstta/sbstta-06/information/sbstta-06-inf11-en.pdf. See, however, M. Sagoff, ‘What’s Wrong with Exotic Species?’, available at: https://msu. edu/~emerysa1/Sagoff_1999.doc. 155 Case C-67/97, Criminal proceedings against Bluhme (ECLI:EU:C:1998:584), paras. 33–4 (emphasis added).

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nature conservation 481 One of the catalysts of international action against alien invasive species is the CBD, albeit other previous instruments already contemplated this matter in conjunction with national laws.156 Article 8(h) CBD requires the parties to (‘as far as possible and as appropriate’) ‘prevent the introduction of, control or eradicate those alien species which threaten ecosystems, habitats or species’.157 The CBD does not provide criteria for determining the occurrence of a ‘threat’,158 albeit the Conference of the parties has adopted guiding (but broad) principles for the implementation of the aforesaid provision.159 As in the case of protected species, states list specific categories of invasive species of concern that are subsequently subject to mandatory actions for their control or eradication.160 A further tool in the struggle against invasive alien species is the prioritization of pathways by identifying the key locations where to apply the prevention and management measures.161 In a nutshell, the struggle against invasive alien species is based on three pillars: (a) prevention; (b) eradication; and (c) containment. Prevention is carried out at entry points through border controls and quarantine measures. This matter is mainly addressed through prohibitions or restrictions on the movement of a pest (be it any species, strain, or biotype of plant, anima, or pathogenic agent injurious to plants or plant products)162 and the issuance of phytosanitary certificates, as prescribed in the International Plant Protection Convention and the Agreement on the Application of Sanitary and Phytosanitary Measures within the context of the World Trade Organization (WTO).163 These controls are both applicable to unintentional or intentional introductions, the latter being accompanied by risk analysis and authorizations. Border controls also apply to diffuse means to spread those species, as exemplified by the International Convention for the Control and Management of Ships’ Ballast Water and Sediments which requires states to ensure that ships flying their flags or operating under their authority and subject to survey and certification, subject to a series of harmonized standards.164 Eradication is conceived as the best course of action to deal with the introduction and establishment of invasive alien species.165 However, even if early detection is carried out it may prove deficient owing to the variety of pathways to survey and the capacity of some invasive species to disperse. In addition, there may be a conflict between the necessity to manage invasive animals and their welfare owing to the methods employed in controlling and eradicating them (e.g. shooting of goats).166 Finally, containment is regarded as a type of eradication as it implies the application of ‘constant eradication or control measures to prevent the further spread of an organism’ but 156 Article III.4.c) Convention on the Conservation of Migratory Species of Wild Animals. 157 Article 8(h). 158 Birnie, Boyle, and Redgwell, International Law & the Environment, at 625. 159 COP 6 Decision VI/23. 160 See, for instance, 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. 161 UNEP/CBD/COP/12/INF/10, ‘Analysis on Pathways for the Introduction of Invasive Alien Species: Updates’. 162 Article II(1) International Plant Protection Convention. 163 Articles V and VII. 164 Annex—Section D Standards for Ballast Water Management to the International Convention for the Control and Management of Ships’ Ballast Water and Sediments. 165 COP 6 Decision VI/23, Guiding Principle 13. 166 Animal Lovers Volunteer Ass’n v Weinberger, 765 F.2d 937 (C.A.9 (Cal.), 1985).

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482 agustín garcía-ureta this may be carried out provided the range of the organisms or of a population is small enough to make such efforts feasible.167

22.4.6 Trade in Species: The Role of CITES Species (either living or dead) are goods subject to trade. This exerts apparent pressure over them and ecosystems. With different degrees of success (and controversy) commercial measures have been part of their protection (e.g. complete ban, or specific restrictions subject to exceptions provided the species have been legally taken from the wild (e.g. for research or public safety purposes). Under WTO rules (Article XX of The General Agreement on Tariffs and Trade (GATT)) the Contracting Parties have the right to take trade action to protect (a) human, animal or plant or health, and (b) exhaustible natural resources, if such measures are made effective in conjunction with restrictions on domestic production or consumption.168 Certain measures regarding the conditions set out for the use of a ‘dolphin-safe’ label on tuna products, the ban imposed on the importation of certain shrimp and shrimp products owing to the harm caused to protected turtles, or trade in seal products have been declared incompatible with WTO principles, in particular non-discrimination.169 However, as the appellate body noted in the shrimp-turtle case mentioned above,170 the term ‘exhaustible natural resources’ includes not only ‘non-living’ resources, but also living species which may be susceptible to depletion. In other words, a species need not be rare or endangered to be potentially ‘exhaustible’. Leaving aside WTO disputes, one of the greatest concerns regarding the protection of species is illegal trade ranging from live animals and plants to wildlife products derived from them. This is a highly lucrative activity carried out by well-organized criminal groups managing massive amounts of money (approximately US$50–150 billion per year).171 The global tool for controlling (illegal) trade in wild species is CITES (1973) which has achieved a remarkable high number of ratifications (including, after a long wait, regional organizations like the EU).172 CITES is essentially based on a three-tier approach. First, it sets out a permit system whereby trade in specimens of species included in its annexes is generally prohibited save under certain exceptions. Secondly, it rests on lists which have traditionally led to disputes among the states parties. Third, it requires them to set up management and scientific authorities in charge of verifying that the conditions set out in the convention are 167 Standards and Trade Development Facility, International Trade and Invasive Alien Species (2013), 14, available at: http://www.standardsfacility.org/sites/default/files/STDF_IAS_EN_0.pdf. 168 Article XX(b) and (g). 169 https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds381_e.htm; https://www.wto.org/english/ tratop_e/envir_e/edis08_e.htm; https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds400_e.htm. 170 WT/DS58/AB/R. 171 UNEP, Year Book 2014 Emerging Issues Update. Illegal Trade in Wildlife (Nairobi, 2014), 25. Illegal trade in timber amounts to US$10–15 billion annually worldwide; the World Bank, Justice for Forests (World Bank series; R67, 2012), available at: http://siteresources.worldbank.org/EXTFINANCIALSECTOR/ Resources/Illegal_Logging.pdf. 172 As of April 2017, 183 states had ratified CITES. The EU became a party on 8 July 2015. However, it had applied CITES by adopting Regulation (EC) No 338/97 on the protection of species of wild fauna and flora by regulating trade therein. Trade with non-parties is also regulated by CITES.

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nature conservation 483 duly complied with. In the light of the foregoing, Appendix I species (threatened with extinction) can only be exported with the grant of an export permit concluding that the export will not detrimental to the survival of the species. However, the permit cannot be issued unless an import permit is also granted. The same applies to the re-export of those species (species previously imported that are subsequently exported). Appendix II species encompasses (a) all species which, although not necessarily threatened with extinction, may become so unless trade is subject to strict regulation to avoid utilization incompatible with their survival, and (b) species that must be subject to regulation in order that trade in specimens of certain species included in this Appendix in accordance with the previous criterion may be brought under effective control. Whilst Appendix II species are subject to an export permit (and consequently verification by the scientific authority) the same does not apply to imports, a matter that has caused controversy over the years. Finally, Appendix III is reserved for species that are designated for protection by domestic legislation and which require ‘the cooperation of other parties in the control of trade’. CITES requires sound consideration of evidence regarding whether the criteria for classification are met or whether an export may be ‘detrimental’ for a species. The need to guarantee coherent standards to avoid disparate approaches depending on national jurisdictions has prompted the Conference of the Parties to define some of the Convention’s notions and include certain safeguards.173 For instance, the criteria on the listing of species require the states not to remove an Appendix I species from the Appendices unless it has been first transferred to Appendix II. In addition, this may only take place provided certain criteria are met (e.g. the species is not in demand for international trade, nor is its transfer to Appendix II likely to stimulate trade).174 After more than forty-two years from its entry into force (on 1 July 1975) the purposes underlying CITES have logically prompted different interpretations owing to its effects on trade in species and also on states parties’ criminal laws.175 On the one hand, it has been argued that it is attractive to the ‘producer’ states insofar as there are controls at the place of import as well as the place of export as essential weapons in the fight to protect their valuable wildlife resources from poachers and illegal traders. ‘Consumer’ states are also interested in supporting the application of CITES because without controls their legitimate dealers might have no raw materials in which to trade in the generations to come.176 This view has been contradicted in certain emblematic cases. For instance, according to some estimates, 30 per cent of Africa’s savannah elephants were wiped out between 2007 and 2014;177 from 1990 to 2007, South Africa lost an average of thirteen rhinoceroses to poaching each year, and from 2008 to 2014 the number of those poached rose rapidly, with a small in reduction in 2015.178 173 Resolution Conf. 9.24 (Rev. CoP16). Conf. 16.7 (Rev. CoP17). 174 Conf. 9.24, Annex 4(A)(2). 175 On the connection between environmental protection and criminal law see the contribution in this volume by E. Lees. 176 S. Lyster, International Wildlife Law (Cambridge: Cambridge University Press, 1987), 241. 177 M. J. Chase and others, ‘Continent-wide Survey Reveals Massive Decline in African Savannah Elephants’ (2016) PeerJ 4:e2354 https://doi.org/10.7717/peerj.2354. 178 TRAFFIC, http://www.traffic.org/home/2016/1/21/south-africa-reports-small-decrease-in-rhinopoaching-but-af.html; L. S. Wyler and P. A. Sheikh, ‘International Illegal Trade in Wildlife: Threats and U.S. Policy’, Congressional Research Service 7-5700, available at: https://digital.library.unt.edu/ ark:/67531/metadc228072/m1/1/high_res_d/RL34395%20_2013Jul23.pdf.

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484 agustín garcía-ureta These cases also indicate that enforcement carried out by states (on both sides of the spectrum, ‘producers’ but also ‘consumers’) is not efficient enough to curb demand of wildlife products (e.g. rhino horns, Eurasian caviar, or pangolins).179 In addition, CITES only covers certain species whilst the others fall outside its remit.180 Allowable reservations have also been ‘greatly abused’,181 a matter that prompted a resolution recommending any party having entered a reservation with regard to any species included in Appendix I to treat that species as if it were included in Appendix II ‘for all purposes’.182 Moreover, if a species is deleted from one Appendix and simultaneously included in another, the deletion renders invalid any reservation that was in effect in relation to the species and, consequently, any party wishing to maintain it must enter a new reservation.183 States can adopt stricter domestic measures, including complete prohibitions.184 Despite some criticism,185 CITES encompasses a normative and institutional framework that has reasonably protected endangered species.186 Admittedly, turning the Convention’s text into practical results is arduous,187 its actual enforcement basically depending on (frequently insufficient) national manpower and resources (at police but also judicial level) in spite of support from international organizations (Interpol or the World Customs Organisation) and NGOs (e.g. TRAFFIC). Without further efforts to address persistent market demand, enforcement action alone may not be sufficient to eliminate illegal trade. CITES should not be conceived as a panacea but as another tool that must operate in conjunction with varied local, regional, and global schemes to successfully protect wild species.

22.5 Wildlife, Property Rights, and Market Mechanisms Wildlife laws do not operate in a vacuum. Whilst it may be argued that international and national laws have intensified the interest in habitats, species, and ecosystems’ preservation to the ‘highest of priorities’,188 wildlife laws actually co-exist with different other different rules and policies that curb or jeopardize that (alleged) uppermost position (e.g. energy, transport, housing, or private ownership rights). The designation of protected areas, the listing of endangered species, and restrictions imposed for their protection (including hunting or commercial bans) affect a well-established principle according to which no private property is to be taken for public use (e.g. the protection of the habitats of a species)189 179 CITES Conf. 17.10. 180 Approximately 5,600 species of animals and 30,000 species of plants are protected by CITES. 181 R. Reeve, Policing International Trade in Endangered Species: The CITES Treaty and Compliance (London: Earthscan, 2002), 35. M. Bowman, P. Davies, and C. Redgwell, Lyster’s International Wildlife Law (Cambridge: Cambridge University Press, 2010), 515–17. 182 Resolution Conf. 4.25 (Rev. CoP14). 183 Ibid. 184 Article XIV.1(a). 185 M. Bowman, ‘A Tale of Two CITES: Divergent Perspectives upon the Effectiveness of the Wildlife Trade Convention’ (2013) Review of European Community & International Environmental Law 228. 186 P.-M. Dupuy and J. E. Viñuales, International Environmental Law (Cambridge: Cambridge University Press, 2015), 172. 187 Reeve, Policing international Trade, at 249–52. 188 TVA v Hill, 437 U.S. 153, 174 (1978). 189 Aarniosalo v Finland, application 39737/98.

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nature conservation 485 without just compensation.190 Broadly speaking, that principle covers not only formal expropriation (directly aiming at depriving private property rights) but also measures which amount to a de facto expropriation.191 Nevertheless, a thorny matter concerns the dividing line between ‘deprivation’ (expropriation) and ‘regulation’ of ownership rights (which may not necessarily entail compensation). Wildlife law has also been affected by a wider ongoing debate concerning the role of environmental regulation vis-à-vis market approaches and generally the economic valuation of habitats, species, and ecosystem services.192 It is not the purpose of this contribution to elaborate on this complex matter.193 Suffice it to say that traditional wildlife protection has been questioned by positions that hold that ‘command and control’ (top-down approach) does not effectively address the concerns surrounding habitats and species, this approach being too strict and undifferentiated. In other words, command and control may sanction people carrying out certain damaging activities but it may not encourage others by providing additional benefits for wildlife. By contrast, it is argued that market approaches based on the setting out of property rights can achieve a better distribution of wildlife resources, unlike public policy. Those who are the main targets of wildlife regulations are in a better position to achieve its protection, by seeking the best benefit for their interests and the protection of those goods that constitute the source of their income. In addition, markets reduce the ability of bureaucrats to exercise discretion and expertise regarding resource use.194 Given that wildlife conservation cannot be based on single positions but on a combination of approaches, it should be noted that the current wildlife crisis may not solely be the result of traditional public policy but of a myriad of other factors contributing to its degradation as exposed in the previous paragraphs. Criticisms of command and control may well disregard the patent successes of designations of diverse areas, the effects of prohibitions on prospective offenders who would otherwise lead to further damage to wildlife as a freely available resource, or the setting up of legal frameworks determining the context in which the different stakeholders involved can act. Secondly, habitats, species, and ecosystems services present complex interactions difficult to value and ultimately to translate into exchangeable units. Third, offset banking, ‘green infrastructures’,195 and other notions may increase the risk of degradation of still preserved areas and species with compensation measures inadequate to reach an equivalent degree of distinctiveness and functionality of ecosystems.

190 Fifth Amendment of the U.S. Constitution. Article 17(1) (second sentence) EU Charter of Fundamental Rights. Article 1 Protocol 1 ECHR does not expressly foresee payment of compensation; see, however, B. Wegener, ‘Property and Environmental Protection in the Jurisprudence of the European Court of Human Rights’ in Winter (ed.), Property and Environmental Protection, at 28–40. 191 Fredin v Sweden (No. 1), application no. 12033/86, 42. 192 TEEB, The Economics of Ecosystems and Biodiversity: Ecological and Economic Foundations (London and Washington: Earthscan, 2010). 193 C. T. Reid and W. Nsoh, The Privatization of Biodiversity? (Cheltenham: Edward Elgar, 2016). 194 T. Anderson and G. Libecap, Environmental Markets (Cambridge: Cambridge University Press, 2014), 13, 73. 195 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.

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486 agustín garcía-ureta Conservation banks have been employed for decades to protect habitats and species. Whilst the United States (wetlands and endangered species)196 or Australia (e.g. New South Wales)197 have developed this tool with varying degrees of success,198 EU wildlife law has not comprehensively addressed this matter in spite of compensation obligations set out in the Habitats,199 and Environmental Liability Directives.200 Other European states have implemented offset approaches (e.g. Germany)201 or merely adopted sketchy rules (e.g. Spain).202 Conservation banks are aimed at creating credits that can compensate for damage caused on habitats, species, and eventually ecosystems. Such credits, generated from protective measures and verified through a specific methodology, need not occur at the time of the execution of a project and even take place in the same territory. Generally, conservation banks may represent an incentive for those interested in generating credits as long as their activities actually involve a ‘net gain’ in terms of wildlife protection. For third parties compelled to offset damages derived from their projects, conservation banks can provide a transparent platform avoiding the search for different options in terms of habitats or species since they will in principle be already available (e.g. economics of scales no accessible at the individual project level).203 Although the term ‘conservation bank’ is commonly used it does not involve a purely inter privatos relationship. By contrast, public intervention is also required insofar as regulation must set out the conditions for generating the credits and in particular their valuation in order to achieve correspondence between damage and offsets. Similarly, public intervention is also needed to verify key matters (inter alia): (a) offsets reach in effect the required level of compensation and within time lapses analogous to disrupted ecosystems; (b) they are not the result of other measures required in any case by law to compensate for damages to habitats or species (e.g. planting the quadruple of fallen trees; or avoiding discharges into watercourses),204 or resulting from different existing support mechanisms (e.g. agricultural or forestry funds); or (c) they do not merely address

196 Clean Water Act, s. 404; Endangered Species Act, s. 10. 197 Threatened Species Conservation Act 1995 No 101 (Part 7AA Biodiversity certification); Threatened Species Conservation (Biodiversity Banking) Regulation 2008. 198 A. Gillespie, ‘A Missing Piece of the Conservation Puzzle: Biodiversity Offsets’ (2012), kindly provided by the author; R. Glicksman and T. Kaime, ‘A Comparable Analysis of Accountability Mechanisms of Ecosystem Services Markets in the United States and the European Union’ (2013) Transnational Environmental Law 259; B. Madsen, N. Carroll, and K. Moore Brands, State of Biodiversity Markets Report: Offset and Compensation Programs Worldwide (2010), available at: http://www.ecosystemmarketplace. com/documents/acrobat/sbdmr.pdf; C. Reid, ‘Between Priceless and Worthless: Challenges in Using Market Mechanisms for Conserving Biodiversity’ (2013) 2 Transnational Environmental Law 217. 199 A. Aragão and H. Van Rijswick, ‘Compensation in the European Union: Natura 2000 and Water Law’ (2014) 10 Utrecht Law Review 155. 200 Articles 6(4) and 16 Habitats Directive. 201 Article 16 Act on Nature Conservation and Landscape Management (Federal Nature Conservation Act –BNatSchG) 2009. 202 Efect-ieep, The Use of Market-Based Instruments for Biodiversity Protection—The Case of Habitat Banking—Technical Report (2010), available at: ec.europa.eu/environment/enveco/pdf/eftec_habitat_ technical_report.pdf. 203 M. Reese, ‘Habitats Offset and Banking—Will It Save Our Nature?’ in Born, The Habitats Directive in its EU Environmental Law Context, at 483–98, 484–5. 204 Spanish Supreme Court Judgment (Administrative Law Chamber) of 29 November 2006, appeal 933/2003.

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nature conservation 487 the most obvious aspects of wildlife impairment (e.g. certain emblematic species to the detriment of others). Therefore, a mere inter privatos relationship may in fact have a limited role. Public authorities must ensure the due operation of the bank and verify that other obligations required by mandatory wildlife law are in effect achieved (e.g. the ‘favourable’ conservation status of species and habitats is maintained) and last but not least the adoption of coercive measures.

22.6 Concluding Remarks Wildlife faces multiple challenges ranging from species depletion to climate change. Wildlife’s complexity also steams from factors it encompasses. Although the CBD does not employ the term ‘wildlife’, it does evince this phenomenon by referring to ‘biodiversity’ as a dynamic notion covering four basic factors: (a) species, (b) ecosystems, (c) genetic diversity, and in particular (d) their subsequent interactions. Wildlife protection is mainly based upon a two-tier system largely followed in a majority of states and international law instruments. On the one hand, the designation of sites; on the other, rules concerning the listing of priority species, different prohibitions affecting a wide range of matters, and a limited number of exceptions. This approach has also been adopted with varying degrees of success to tackle globalized trade in endangered species. Arguably, one of the greatest challenges wildlife laws and policies face nowadays is how to articulate reliable tools for its protection beyond designated sites and vis-à-vis many other policies that jeopardize its double-edged facet (intrinsic value and usefulness for maintaining life sustaining systems of the biosphere). Command and control approaches are currently subject to criticism in view of wildlife regression. By contrast, wildlife valuation and the implementation of market approaches are being upheld as more practical methods to its conservation in spite of the difficulties to rate complex mechanisms developed during decades or centuries. Arguably, virtue stands in the middle and last but not least in restraining humankind’s unrelenting capability to modify the biosphere at a rate that is arduous to withstand.

22.7 Select Bibliography Bastmeijer, K., Wilderness Protection in Europe: The Role of International, European and National Law (Cambridge: Cambridge University Press, 2016). Born, C.-H., Wilderness Protection in Europe: The Role of International, European and National Law (London: Routledge, 2015). Bowman, M., ‘A Tale of Two CITES: Divergent Perspectives upon the Effectiveness of the Wildlife Trade Convention’ (2013) Review of European, Comparative & International Environmental Law 228. Bowman, M., P. Davies, and C. Redgwell, Lyster’s International Wildlife Law (Cambridge: Cambridge University Press, 2010). Gillespie, A., Protected Areas and International Environmental Law (Leiden: Martinus Nijhoff, 2007). Gillespie, A., Conservation, Biodiversity and International Law (Cheltenham: Edward Elgar, 2011). De Sadeleer, N. and C.-H. Born, Droit international et communautaire de la biodiversité (Paris: Dalloz, 2004). García-Ureta, A., Derecho Europeo de la Biodiversidad (Madrid: Iustel, 2010). Kolbert, E., The Sixth Extinction: An Unnatural History (London: Bloomsbury, 2015).

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488 agustín garcía-ureta Reid, C.T. and W. Nsoh, The Privatization of Biodiversity? (Cheltenham: Edward Elgar, 2016). Trouwborst, A. et al., ‘International Wildlife Law: Understanding and Enhancing Its Role in Conservation’ (2017) 67 BioScience 784–90. Verschuuren, J., ‘Effectiveness of Nature Protection Legislation in the European Union and the United States: The Habitats Directive and the Endangered Species Act’ (2003) 3 Yearbook of European Environmental Law 305–28.

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chapter 23

R egu l ation of M a r i n e Ca ptu r e Fish er ie s Till Markus

23.1 Overview

490

23.2 Overfishing and Goals Pursued by Regulatory Systems

490

23.3 Analytical Framework

493

23.4 Comparing the Regulation of Marine Capture Fisheries

495

23.4.1 Introduction 23.4.2 Background 23.4.2.1 The EU 23.4.2.2 Japan 23.4.2.3 New Zealand 23.4.3 Scope, Competence Order, and Central Legislative Acts 23.4.3.1 The EU 23.4.3.2 Japan 23.4.3.3 New Zealand 23.4.4 Regulation of the Management Process 23.4.4.1 The EU 23.4.4.2 Japan 23.4.4.3 New Zealand 23.4.5 Laws and Policies Affecting the Functioning and Effectiveness of Fishing Regulation 23.4.6 Critical Performance Assessment and Comparison 23.4.6.1 Commonalities and Differences 23.4.6.2 System Specificity 23.4.6.3 Specific Shortcomings

495 496 496 496 497 497 497 499 501 502 502 503 503 504 505 505 505 506

23.5 Concluding Remarks

507

23.6 Acknowledgements

508

23.7 Select Bibliography

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23.1 Overview Laws regulating marine capture fishing activities can generally be understood as a response to the problem of overfishing. Accordingly, they usually aim to ensure that the exploitation of living aquatic resources is carried out at sustainable levels. Legislatures throughout the world subject fishing activities to an array of rules, such as quantitative catch restrictions, effort limitations, technical regulations, and planning instruments. These laws are usually supplemented by more complex management systems, including, for example, regulations on decision-making powers and procedures, access to and distribution of fisheries resources, stakeholder participation, and finally control and enforcement measures. Frequently, these systems are embedded in even more comprehensive fisheries policies that pursue a variety of objectives. Many countries aim at guaranteeing product supply, stabilizing income, upholding employment, adapting production capacities to available resources, or making laws regulating fishing activities compatible with environmental law requirements. In many cases, pursuing these different policy objectives can affect a law’s ability to effectively govern fishing activities, particularly with regard to sustainable exploitation. This chapter will briefly review the current state of world fisheries resources and explain some general social conflicts which are deleterious to sustainable and environmentally friendly fishing. In a second step it will introduce a systematic and flexible approach for analysing, assessing, and comparing marine capture fisheries laws. Key regulatory instruments of fisheries laws will be identified and criteria for designing and narrowing down possible scopes of comparisons will be discussed. Based on this approach, the fisheries laws of the European Union (EU), Japan, and New Zealand will be analysed and compared. These jurisdictions are selected because they represent three major types of current management systems, that is, hierarchical-administrative, co-management, and market-based, respectively. The chapter argues that in order to gain a deeper understanding of national fisheries regimes, comparative studies must to some extent take notice of international, local, and private rules and institutions.1

23.2 Overfishing and Goals Pursued by Regulatory Systems Fishing is regarded as one of the main anthropogenic stressors of the marine environment. With regard to the specific effects of fishing on target species, the United Nations (UN) Food and Agricultural Organisation (FAO) states that since the 1980s global marine fisheries capture has levelled around 80 million tonnes annually.2 Recent studies, however, estimate 1 Today, comparative studies must adopt a ‘global, plurality-conscious perspective’, see W. Menski, Comparative Law in a Global Context (Cambridge: Cambridge University Press, 2006), 82 et seq. 2 FAO, The State of World Fisheries and Aquaculture 2016: Contributing to Food Security and Nutrition for All (Rome: FAO, 2016), 10–13.

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regulation of marine capture fisheries 491 true global catches to be significantly higher and also indicate a slow but steady decline of fish populations.3 Due to the growing world population as well as technological progress it is very likely that fishing pressures will increase in the long term.4 FAO estimates that approximately 31.4 per cent of fish stocks are overfished and 58.1 per cent of stocks are fully exploited without any room for further growth (FAO, 2016).5 Despite this global trend it must be noted that the degree of overfishing can vary substantially in different regions, fisheries, and countries. Though overfishing is widespread, some countries or groups of countries and some local communities seem to be more successful than others in managing fishing activities at sustainable levels.6 Although the reasons for overfishing are often complex and vary in different types of fisheries, regions, or countries some causes are shared by most fisheries. For many observers, the root cause for overfishing stems from the destructive incentive structure in which fishers regularly find themselves. Fisheries constitute what economists call a common pool resource (which is a special case of what they term a public good).7 Common pool resources like fish stocks are defined by two central characteristics.8 First, they are subject to little control or authority (or sometimes none at all), which means that excluding individuals from using them is for the most part impossible. Second, their use is characterized by scarcity and rivalry, which means that the use of the environmental resource by one actor reduces or makes more expensive the use by others. The public nature of fisheries resources and the rivalry between fishers creates a social dilemma which is widely referred to as the tragedy of the commons.9 From the point of view of rationally-acting fishers, the situation is as follows: exploitation costs will decrease and profits or increase if competitors restrict their exploitation activities in order to preserve fish stocks or to promote their efficient distribution. An economic incentive thus arises to exploit while others preserve the resource (free-riding). However, if everyone thinks in this way and free-rides, everyone loses individually and collectively because the resource is over-exploited and becomes depleted, with increasing costs for each fisher individually. Moreover, the competitive situation within the social dilemma is often exacerbated by other factors. First, for single competitors, short-term, calculable profits have a higher value than long-term, non-calculable benefits. That results in increased pressure to exploit the resource now rather than later, that is to ‘race’ to fish. Second, the open access nature of fisheries also encourages investment in the sector, which in many countries has led to overcapacities (e.g. too many vessels) that must be put to use to extract some return on investment. This dynamic, again, is aggravated by the granting of 3 D. Pauly and D. Zeller, ‘Catch Reconstructions Reveal that Global Marine Fisheries Catches are Higher Than Reported and Declining’ (2016) 7 Nature Communications 10244. 4 T. J. Hegland, ‘Factors Behind Increasing Ocean Use: The IPAT Equation and the Marine Environment’ in M. Salomon and T. Markus (eds.), Handbook on Marine Environment Protection (2018) 533–542. 5 FAO, The State of World Fisheries and Aquaculture 2016, at 38. 6 For a comparative assessment see e.g. M. J. Williams and D. Staples, ‘Southeast Asian Fisheries’ in R. Q. Grafton et al. (eds.), Handbook of Marine Fisheries Conservation and Management (Oxford: Oxford University Press, 2010), 243–57. 7 P. Hallwood, Economics of the Oceans, Rights, Rents, and Resources (New York: Tailor and Francis Group, 2014), 83–110. 8 For more details see M. Madison, B. M. Frischmann, and K. Strandburg, ‘The Complexity of Commons’ (2010) 95 Cornell Law Review 839–50. 9 G. Hardin, ‘The Tragedy of Commons’ (1968) 162 Science 1243–8; see also G. Hardin, ‘Extensions of The Tragedy of the Commons’ (1998) 280 Science 682–3.

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492 till markus subsidies that alter cost-revenue structures by reducing production costs and investment risks for the fishing industries.10 Overcapacity is, in addition, a major obstacle to the successful implementation of fisheries management objectives.11 Regarding the overall management objective it has to be borne in mind that the use and exploitation of marine capture resources ultimately depends on the level of available fish stocks. Fisheries scientists use models to identify reference levels at which they deem exploitation rates sustainable. Explicitly or implicitly most fisheries laws aim to ensure that regulated fishing practices do not exceed those reference levels. Fisheries scientists mostly agree that fishing activities are sustainable when they are carried out at the maximum sustainable yield-level (MSY), that is, the largest harvest that can be taken from a fish stock year after year while still maintaining the average stock size.12 Though MSY seems to be the focal point in fisheries management, it must be noted that MSY in itself does not reflect the ecosystemic effects of fishing activities on non-target fisheries species (which is particularly problematic in multi-species fisheries and with regards to the conservation of marine mammals) or on the marine environment as such.13 Economists would also argue that fishing at MSY may not meet efficiency criteria, since in most cases it exceeds the maximum economic yield-level (MEY), that is, the level of fishing at which economic profits in a specific fishery are maximized.14 Accordingly, fishing restrictions which allow fishing at MSY may have to be modified to respond adequately to environmental necessities and efficiency considerations.

10 For a current overview of global fisheries subsidies, see European Parliament, Directorate-General for International Policies, Global Fisheries Subsidies (2013). 11 T. Markus, ‘Towards Sustainable Fisheries Subsidies—Entering a New Round of Reform Under the Common Fisheries Policies’ (2010) 34 Marine Policy 1117–24. 12 S. Iudicello, M. L. Weber, and R. Wieland, Fish, Markets, and Fishermen—The Economics of Overfishing (Washington DC: Island Press, 1999), 45–7; for a critical assessment, see C. Finley and N. Oreskes, ‘Maximum Sustained Yield: A Policy Disguised as Science’ (2013) 70 ICES Journal of Marine Science 245–50. MSY has been already stipulated as the overriding goal for the management of fish stocks since as early as 1982 when it was incorporated into Art. 61(3) United Nations Convention on the Law of the Sea, 10 December 1982, 1833 UNTS 397. At the World Summit on Sustainable Development at Johannesburg in 2002 the UN member states committed themselves to maintain or restore fish stocks to a level that can produce MSY no later than 2015 (Section 31(a) of the Plan of Implementation of the World summit of Sustainable Development). This commitment was then repeated in Section 168 of the outcome document ‘Future We Want’ of the third United Nations Conference on Sustainable Development in 2012 and then further developed in 2016 within Target 14.4. of the United Nations Sustainable Development Goals: ‘By 2020, effectively regulate harvesting . . . and implement science-based management plans, in order to restore fish stocks in the shortest time feasible, at least to levels that can produce maximum sustainable yield as determined by their biological characteristics.’ 13 C. M. Dichmont, S. Pascoe, T. Kompas, A. E. Punt, and R. Deng, ‘On Implementing Maximum Economic Yield in Commercial Fisheries’ (2010) 107 PNAS 16–21. See generally M. Kaiser and S. J. de Groot, The Effects of Fishing on Non-target Species and Habitats: Biological Conservation and Socioeconomic Issues (Oxford: Blackwell Science, 2000). While traditionally fisheries policies and regulations have narrowly focused on the effects of fishing activities on specific target species, there is now greater recognition that fishing involves not only the taking of target species but impacts the surrounding marine environment, see G. Kraus and R. Diekmann, ‘Impact of Fishing Activities on Marine Life’ in M. Salomon and T. Markus (eds.), Handbook on Marine Environment Protection (2018), 79–96. 14 See critically C. C. Clark, ‘Challenges in Marine Capture Fisheries’ in R. Q. Grafton, R. Hilborn, D. Squires, M. Tait, and M. William (eds.), Handbook of Marine Fisheries Conservation and Management (Oxford: Oxford University Press, 2010), 638–45.

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regulation of marine capture fisheries 493

23.3 Analytical Framework States subject fishing activities to a wide array of regulatory instruments that function as tools to ensure that exploitation is carried out at sustainable levels. Measures addressing fishing activities are often grouped into two categories, that is, input- and output-regulations. The first group basically involves restricting all factors that enable fishing vessels to exploit fisheries resources. The theory behind these measures is that they confine fishing activities to retain stocks ability to reproduce and protect fragile ecosystems. Respective measures may include the limitation or reduction of the number of fishing vessels (e.g. through a licensing system or buy-back schemes), the regulation of vessel size and engine power, catching periods or areas, fishing gear (e.g. restricting the use of certain types of nets and prescribing mesh sizes), and defining minimum sizes for caught fish.15 Output-regulations, in turn, mainly aim at reducing fishing pressure on specific stocks, particularly by restricting the amount of fish that can be taken. Measures include, for example, quantitative harvest restrictions (so-called ‘total allowable catches’ or ‘TAC’), landing obligations, and discard regulations. Both input- and output-regulations have their advantages and disadvantages. As a general matter, whereas input-regulations are comparatively easy to adopt and implement, they tend to provide incentives for increasing fishing power, accelerating or geographically shifting fishing activities, and circumventing legislation.16 Conversely, while output regulations such as TACs make it relatively easy for governments to distribute resources among themselves and their fishers (by adopting and assigning transferable or non-transferable individualised quotas), their implementation requires inter alia advanced scientific research, often difficult political negotiations regarding exploitation levels, as well as expensive control and enforcement actions. Given the advantages and disadvantages of different fisheries measures, governments usually rely on tailor-made combinations of conservation instruments. For example, a government may adopt a TAC for a specific stock, complement it by a limitation of fishing days for the specific fishery, and protect the stock’s nursery grounds by seasonal or permanent closures of specific areas. TAC quotas may be transferable in order to increase efficiency in the sector and reduce overcapacity. Fishers who are forced to leave the fishery may either receive public funding to shift their fishing activities, retrain, or retire. In theory, taken together these sets of measures determine the overall catch levels as well as the environmental impacts of fishing activities. In reality, however, it is difficult to predict the effect of single measures or combinations thereof. Rules regulating fishing activities are often placed in complex social, legal, and political settings that also direct their functioning. From a legal perspective, laws regulating the distribution of decision-making powers (including stakeholder participation), the conservation of the marine environment, the public support of fishing activities, the inclusion of knowledge from scientists, and the control and 15 Y. Kura, C. Revenga, E. Hoshino, and G. Mock, Fishing for Answers—Making Sense of the Global Fish Crisis (Washington D.C.: The World Resource Institute, 2004), 90–1. See also M. Holden, The Common Fisheries Policy (Oxford: Fishing News Books, 1996), 196. 16 Kura et al., Fishing for Answers, at 80–93; see also R. Curtis and D. Squires, Fisheries Buybacks (Oxford: Wiley Blackwell, 2007).

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494 till markus enforcement of fisheries laws are particularly relevant. Those rules can either support or undercut fishing rules’ effectiveness.17 For this reason, comparative studies must not treat these different aspects separately or analyse them in isolation from each other. This applies equally to studies which compare specific elements of fisheries laws (e.g. regulation of fisheries resource allocation;18 self-governance; fisheries buybacks; implementation of the precautionary or ecosystem approach; small-scale fisheries, etc.) or those comparing comprehensive fisheries laws and policies (e.g. Australia’s and Iceland’s fisheries law).19 Confronted with such complexities, a legal comparatist must first try to have an overview of the relevant facts. These include, inter alia: the development and status of fish stocks and the marine environment; the size, structure, evolution, and socio-economic importance of the fishing and processing sector; the trade balance of the relevant countries (import and export); the supply and demand structures on fisheries markets; and the consumption patterns and conflict structures among fishers, as well as between fishers and other societal actors (e.g. offshore-windfarm-operators, offshore-mining-industries, etc.). In addition, the cultural or political importance and history of the fishing sector within the local or national development should be explored. Secondly, the scope and the central legislative acts of the compared fisheries laws should be identified. This includes those laws regulating fishing activities and establishing management systems, as well as those possibly regulating structures of the sector, markets, trade in fisheries products, or the conservation of the marine environment. Particular attention should be paid to the historical developments. Comparatists should become aware of how the political and legal systems have responded to the evolving and often changing problems of overexploitation and how the current system has developed into what it is today. Possible influences of the development in international law of the sea and regional fisheries management organizations (RFMOs) should be considered.20 This can provide insight into the causes and roots of current problems of municipal fisheries laws, existing path dependencies, and explain the designs, functions, and the relative importance of specific measures.21

17 G. Winter, ‘Towards a Legal Clinic for Fisheries Management’ in G. Winter (ed.), Towards Sustainable Fisheries Laws (Gland: IUCN Environmental Policy and Law Papers No. 74, 2009), 299–338; T. Markus, European Fisheries Law—From Promotion to Management (Groningen: Europa Law Publishing, 2009). 18 See e.g. European Parliament, Directorate General for International Policies, Best Practices in the Use of Rights-based Management to Reduce Discards in Mixed Fisheries (2014). 19 P. Marschal, P. Lallemand, K. Stokes, and O. Thébaud, ‘A Comparative Review of the Fisheries Resource Management Systems in New Zealand and in the European Union’ (2009) 22 Aquatic Living Resources 463–81; P. Marschal et al., A Comparative Review of Fisheries Management Experiences in the European Union and in Other Countries Worldwide (Iceland, Australia, and New Zealand: Fish and Fisheries, 2016), 803–24. 20 D. Freestone, ‘Fisheries, Commissions and Organisations’ in R. Wolfrum (ed.), Max Planck Encyclopedia of International Law (Oxford: Oxford University Press, 2010); Unterweger, I., International Law on Tuna Fisheries Management (Baden-Baden: Nomos, 2015). 21 The decision to adopt TACs under the Common Fisheries Policy (and not impose fishing limits by effort regulation) was influenced by the fact that policy-makers were used to this instrument through their work in the North East Atlantic Fisheries Commission. See e.g. T. R. Hegland and J. Raakjaer, ‘Recovery Plans and the Balancing of Fishing Capacity and Fishing Possibilities: Path Dependence in the Common Fisheries Policy’ in S. Gezelius and J. Raakjear (eds.), Making Fisheries Management Work (Berlin: Springer Verlag, 2008), 131–59.

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regulation of marine capture fisheries 495 Third, fisheries laws should then be analysed more thoroughly regarding the way in which they direct fishing activities and structure the overall management process. Besides thoroughly analysing input- and output regulations, comparatists may look at how fisheries laws organize the processes through which such rules are adopted. This includes analysing rules that direct the decision making procedures and determine who has a say at what point in defining extraction levels, access and fishing conditions, and in taking distributional decisions. At this point, the competence to restrict fishing activities for environmental purposes needs to be analysed. In addition, the different management principles, goals, strategies, and instruments governing fisheries activities should be analysed. Such measures include, inter alia, principles and concepts like the precautionary and ecosystem approach. To fully understand how management systems and fisheries principles and rules function, administrative and juridical practices and decisions should be taken into consideration. Fourth, where applicable, comparative analyses must also inquire into those laws internal or external to a fisheries policy that also affect the effectiveness of fisheries laws. This would principally include structural, market, trade, and environmental conservation measures that affect the development of the industry as well as supply and demand of fisheries products.22 Fifth, comparators should try to assess and value the performance and the design of fisheries laws and explain the overall effects of laws affecting fisheries. Valuation of the compared fisheries laws may be based either on legal or non-legal criteria, for example, compliance with higher ranking laws, systematic consistency, or effectiveness and economic efficiency.23 Based on this assessment, advantages and disadvantages of the different systems can be evaluated and compared.

23.4 Comparing the Regulation of Marine Capture Fisheries 23.4.1 Introduction This submission will exemplify the approach laid out above by comparing the legal responses to the problem of overfishing in marine capture fisheries in the EU, Japan, and New Zealand. All three systems are those of developed countries with market economies and similar standards of living—cultural differences notwithstanding. Their fisheries policies and laws are widely deemed to differ, however, in regard to their attitude towards market-based instruments (administrative versus market-based), the involvement of stakeholders in decision-taking (hierarchical-administrative versus co-management), their success rate in managing fisheries, their innovative potential, and their legal traditions (civil law, common law, and one East Asian legal order).24 Looking closer at the origins and development of these regimes also 22 Markus, European Fisheries Law. See also N. Wolff, Fisheries and the Environment (Baden-Baden: Nomos, 2002). 23 For such a comprehensive assessment, see, for example, Winter, ‘Towards a Legal Clinic for Fisheries Management’, at 299–338. 24 For a critical analysis of existing classification of ‘legal families’ or ‘legal traditions’, see M. Siems, Comparative Law (Cambridge: Cambridge University Press, 2014), 72–96.

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496 till markus allows us to see early development stages of modern management regimes, some of which still can be found in other parts of the world.25 The EU is an interesting case: despite being a supranational entity, it regulates all marine capture fishing activities for all its Member States in a state-like manner, as well as simultaneously facing the specific challenge of promoting effective and coherent implementation by the different Member States.26

23.4.2 Background 23.4.2.1 The EU The EU (including the United Kingdom) has a coastline of approximately 68,000km, its Member States’ territorial seas and EEZs covering over 8.2 million km2.27 It has a clearly negative trade balance in fishery products (e.g. over 60 per cent of all the fish is consumed in the EU).28 Regarding the state of fisheries resources, the European Environmental Agency (EEA) stated in 2010: ‘30 per cent of Europe’s commercial fish stocks are now fished beyond SBL, and . . . 70 per cent of commercial fish stocks were fished above [MSY]’.29 The EEA also declared in 2010 that ‘The capacity of European fishing fleets has also not been sufficiently reduced to be in balance with available fish resources’.30 In 1998, the value of the whole production chain (i.e. fishing, aquaculture, processing, and marketing) was estimated to be 0.28 per cent of the Community’s GDP.31 Despite this relatively small share, many coastal communities rely heavily on fishing as a source of jobs and income for their citizens.32 In 2015 the total number of active fishermen amounted to 150,485 (having continuously declined throughout the last decades).33

23.4.2.2 Japan Japan consists of four main islands (97 per cent of the land area) and roughly 6,000 smaller ones, giving home to roughly 128 million people. Its coastline is 29,751km long and its territorial sea and EEZ cover an area of 4.47 million km2. With regard to fisheries products in general, Japan has turned into an import-country over the last decades; in 2010 only 60 per cent of the consumed fish were produced domestically. Japan’s Fishery Agency assessed the status in 2010 and found that 41.7 per cent of target stocks were at ‘low levels’, 40.5 per cent

25 See e.g. Williams and Staples, Southeast Asian Fisheries, at 243–57; see also B. P, Satia and A. M. Jallow, ‘West African Coastal Capture Fisheries’ in R. Q. Grafton et al. (eds.), Handbook of Marine Fisheries Conservation and Management (Oxford: Oxford University Press, 2010), 258–73. 26 Articles 2(1) and 3(1)(d), 4(1),(2)(d) in combination with Arts. 38 and 43(3) TFEU. 27 European Commission, Maritime Facts and Figures (Brussels: EU, 2006), 3. 28 European Commission, Reflections on Further Reforms of the Common Fisheries Policy: Commission Working Document (Brussels: EU, 2008), 2. 29 EEA, The European Environment: State and Outlook 2010 (Copenhagen, 2010), 4. 30 Ibid. 31 Commission Communication Com(2001) 135 final Green Paper on the future of the Common Fisheries Policy, vol. II b, 4. 32 European Commission, Facts and Figures on the Common Fisheries Policies, at 16. 33 Ibid., at 18; for older data, see European Commission, Regional Socio-economic Studies on Employment and the Level of Dependency on Fishing (Brussels: EU, 2000), 30–1.

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regulation of marine capture fisheries 497 at ‘medium level’, and 17.9 per cent at high level.34 Japan’s fishing fleet is dominated by small-scale fishing vessels, constituting approximately 96 per cent of the fleet.35 Japan’s marine capture fisheries sector provides only for about 0.2 per cent of the national gross domestic product (GDP). As a general trend, the number of fishers has continuously declined over the last years with the average age of fishers increasing (in 2008, 36 per cent of all fishermen were sixty-five years or older).36

23.4.2.3 New Zealand New Zealand consists of two major islands and numerous minor ones amounting to roughly 268,000km2; its EEZ covers over 4 million km2. In contrast to Japan and the EU, New Zealand has a positive trade balance, with an export volume of 256,854 tonnes in 2009 (a 12 per cent increase from 2000).37 A 2015 assessment indicates that 85.1 per cent of the commercially exploited stocks for which scientific information is available were fished ‘below the overfishing threshold’, that is, at sustainable levels, and only twenty-seven commercially exploited stocks were considered to be overfished, of which eleven out of these twenty-seven were considered to be collapsed.38 Overall, the fishing industry contributes about 1.8 per cent of the GDP. New Zealand’s fishing fleet has steadily declined over the last few years. Between 2003 and 2010 the number of vessels and gross tonnage lowered from 1897 to 1401 (from 17.6164 GRT to 11.7919 GRT).39

23.4.3 Scope, Competence Order, and Central Legislative Acts 23.4.3.1 The EU The EU’s Common Fisheries Policy (CFP) is the product of a highly complex evolution.40 One of the root causes of overfishing in EU waters is that for a long time there has been excessive fishing pressure created by an overcapitalized fleet. Overcapacity accumulated 34 European Commission, Regional Socio-economic Studies on Employment and the Level of Dependency on Fishing, at 33. 35 However, the mere number of vessels is not an accurate indicator of the overall fishing power. Tonnage and engine power are considered to be more reliable factors powering this regard. 36 European Parliament, Fisheries in Japan, at 45. 37 Statistics New Zealand, Fish monetary stock account 1996–2009 (Wellington, 2010), 5. 38 New Zealand Ministry for Primary Productions, The Status of New Zealand’s Fisheries (2015), 1 and 9. 39 SOCIOEC, Socio-economic Effects of Management of the Future CFP—Deliverable D. 6.13, Report on Current Fisheries Management Measures in Iceland, Australia and New Zealand (2013), 57. 40 R. R. Churchill, EEC Fisheries Law (Dordrecht/Boston: Martinus Nijhoff Publishers, 1987); Holden, The Common Fisheries Policy; Markus, European Fisheries Law. On the latest reform, see R. Churchill and D. Owen, The EC Common Fisheries Policy (Oxford: Oxford University Press, 2010); T. Markus and M. Salomon, ‘The Law and Policy Behind the Upcoming Reform of the Common Fisheries Policy’ (2012) 4 Journal for European Environmental & Planning Law 257–84; M. Salomon, T. Markus, and M. Dross, ‘Masterstroke or Paper Tiger—The Reform of the EU’s Common Fisheries Policy’ (2014) 47 Marine Policy 76–84. See also lately E. Penas Lado, The Common Fisheries Policy: The Quest for Sustainability (Oxford: Wiley Blackwell, 2016); J. Wakefield, Reforming the Common Fisheries Policy (Cheltenham: Edward Elgar Publishing, 2016).

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498 till markus particularly during the late 1970s and since then has never really diminished. First, since 1970 the EU has promoted and subsidized the extension of the entire sector, including the fleet.41 In addition, the number of vessels was substantially increased by Member States’ ‘homecoming’ ships that had been excluded from overseas fishing grounds due to the establishment of the EEZ in international law in the late 1970s.42 In response, the first comprehensive common resource management and control regimes were adopted during 1982 and 1983.43 Since then the CFP has been subject to three significant reforms (one every ten years). These reforms may be generally characterized as efforts to manage and reduce fishing pressure imposed by the chronically overcapitalized fleet. In addition, Member States are persistently unwilling to cut-back fishing opportunities and subsidies as well as to effectively control and enforce CFP rules.44 Despite the notorious failure of the CFP to manage fisheries sustainably, the fundamental structure of the system has never been radically revised but only adapted in a piecemeal way. For example, steps were undertaken to supplement the management system based on TACs. Measures included inter alia effort restrictions (limiting days at sea), multi-annual management plans, a licensing system,45 stakeholder consultation schemes and institutions (so-called Regional Advisory Councils),46 more stringent environmental policy objectives and principles such as the ecosystem approach and precautionary approach,47 phasing out subsidies that would maintain or increase overcapacity,48 and recently the introduction of a general MSY-target for fixing fishing opportunities, and the establishment of a landing obligation (to avoid excessive discarding).49 Today, measures under the EU’s CFP can be grouped into three categories: fisheries management, structural policies, and market organization. For each category there is a basic regulation50 which is complemented by an array of concretizing legislative acts. In addition, implementation of these measures is supported by a complex system of control 41 Council Regulation (EEC) No. 729/70 of 21 April 1970 on the financing of the common agricultural policy (OJ 1970 No. L94/13); Council Regulation (EEC) 2141/70 of 20 October 1970 laying down a common structural policy for the fishing industry (OJ 1970 No. L236/1); see Holden, The Common Fisheries Policy, at 21 and 39 et seq. 42 On the formation of the EEZ in international law, see R. Churchill and A. V. Lowe, The Law of the Sea (Manchester: Manchester University Press, 1999), 160–80. 43 Regulations 170/83 and 171/83. According to Art. 102 of the 1972 Accession Treaty, the management policy should have been adopted no later than 1978. A control regulation had already been adopted in 1982, Regulation 2057/82. 44 See literature on the reforms at n. 40. 45 See Council Regulation (EEC) 2847/93 establishing a control system applicable to the common fisheries policy, OJ 1993 No. L261/1. See also Art. 4(2)(d), Arts. 5 and 7(1) and Art. 8(3) of Regulation 3760/92; Arts. 5 and 6 of Regulation 2371/02. 46 The Regional Advisory Councils are now simply called Advisory Councils. On the functions see R. Long, ‘The Role of Regional Advisory Councils in the European Common Fisheries Policy. Legal Constraints and Future Options’ (2010) 25 International Journal of Marine and Coastal Law 321–7. 47 See Arts. 2(1), second paragraph, 4(1), and (2)(g)(iv), 5(2), 6(2), 7(1), 8(1) of Regulation 2371/02. 48 Markus, Towards Sustainable Fisheries Subsidies, at 1117–24. 49 Salomon, Markus, and Dross, ‘Masterstroke or Paper Tiger’, at 76–84. 50 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.

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regulation of marine capture fisheries 499 and enforcement measures,51 and by a system of international access agreements.52 Together with the respective provisions in the Treaty on the Functioning of the European Union (TFEU),53 these laws define the distribution of competences between the EU and Member States. In principle, while the EU holds an exclusive competence to regulate the ‘conservation of marine biological resources’, competences regarding structural policies and market organization are shared.54 In contrast, executive powers primarily lie with Member States, who implement and enforce EU law.55 Developing EU marine environmental law and policies increasingly require the CFP to avoid the destruction of important marine ecosystems by fishing operations and to contribute to the achievement of good marine environmental status.56

23.4.3.2 Japan One may say that the current Japanese fisheries management regime began to take clear shape after the Second World War. Some of its elements, however, have ancient roots and date back a couple of hundreds of years to Japan’s feudal era.57 Quite similar to the EU’s CFP, Japan’s emerging post-war fisheries policy was strongly motivated to build up the sector, guarantee food supplies, and improve fishers’ economic status.58 While at that time the American occupation administration strongly promoted a property-rights and market-based management system, the Japanese government successfully argued in favour of re-establishing their traditional fisheries co-management regime under which the local so called Fisheries Cooperative Associations (FCAs) are granted substantial management rights. The legal framework for this system was then laid down in three early codes that are still in force today (though in amended versions), that is, the Fisheries Cooperation Association Law from 1948,59 the Fisheries Law 1949,60 and the Act on the Protection of Fishery Resources 1951.61 These three laws define the legal framework under which the Minister of Agriculture, Forestry and Fisheries, the prefecture governors, and local FCAs manage fishing activities through a system of rights for coastal and licences for offshore fisheries. 51 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, OJ 22.12.2009, No. L 343/1. 52 For a current discussion see e.g. Penas Lado, The Common Fisheries Policy , at 161–9; T. Markus, ‘Wege zu einer nachhaltigen EU-Fischereiaußenhandelspolitik’ (2013) 6 Europarecht 697–710. 53 Treaty on the Functioning of the European Union, 26.10.2012, OJ C 326/47. 54 Arts. 2(1) and 3(1)(d), 4(1),(2)(d), in combination with Arts. 38 and 43(3) TFEU. 55 See e.g. Arts. 6, 7, 13, 16(6), 18, and 19 of 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. 56 T. Markus, S. Schlacke, and N. Maier, ‘Legal Implementation of Integrated Ocean Policies: The EU’s Marine Strategy Framework Directive’ (2011) 26 The International Journal of Marine and Coastal Law 1–32. 57 Makino, Fisheries Management in Japan, at 21–6. 58 Ibid., at 30. 59 Fisheries Cooperation Association Law, Act No. 242 of 1948. 60 Fisheries Law 1949, Act No. 267 of 1949. 61 Act on the Protection of Fishery Resources, Act No. 313 of 1951. In the literature, the Act is also often referred to as the ‘Fisheries Resource Conservation Law’ or the ‘Fisheries Resource Protection Law’.

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500 till markus The system was complemented by several laws in the late 1990s and early 2000s. Parallel to Japan’s ratification of the United Nations Convention on the Law of the Sea (UNCLOS), the Law on Preservation and Management of Living Marine Resources introduced a TACsystem for eight commercially important species in 1997.62 In 2001, the Basic Act on Fisheries Policy was adopted; it assigns regulatory and management responsibilities, aims at promoting supplies for Japanese markets, developing fisheries communities (given the changing age structure of fishermen), and promoting sustainable fisheries and environmental protection. So-called Basic Plans have been developed based on Article 11 of this law, promoting, for example, the reconstruction of fisheries industries affected by the 2011 Tsunami.63 In 2007, the Basic Act on Ocean Policy was enacted, providing principles upon which the government and coordination of different ocean uses and sectors would be achieved. While the Fisheries Cooperation Association Law establishes rules on the structure and functioning of the FCAs, the Fisheries Law defines different types of fisheries use rights and assigns decision-making powers regarding fisheries management particularly to the regional prefectures and local FCAs. Under the Fisheries Law, use rights have been designed in a non-marketable fashion.64 In general, fishing rights are granted at prefecture level but are based on so-called Fishery Ground Plans drafted by representatives of local fishing communities.65 The FCAs then implement prefecture regulations and also regulate local fishing activities directly (through input and output restrictions and through forming fisheries specific management units, which then also adopt measures autonomously).66 FCAs are granted a high level of autonomy (often referred to as self-governance or co-management).67 Coordination between different prefectures, particularly regarding migratory species, is promoted in part through three Wide-Area Fisheries Coordination Committees and the Fishery Policy Council (the latter at the national government level). Since 1996 the exploitation of eight commercially important fisheries is governed by the central government’s Fisheries Ministry under a TAC system. Since the late 1990s, ecological aspects are increasingly recognized in Japan’s fisheries laws and management plans.68 For example, there are laws in place to establish different types of protected marine areas and then limit fishing activities in these areas for the purpose of marine conservation.69

62 Makino, Fisheries Management in Japan, at 32–4. 63 European Parliament, Fisheries in Japan, at 15–19; see also Makino, Fisheries Management in Japan, at 21. 64 They have been described as the ‘right to conduct fishery operations exclusively in specified areas by specified methods. Legally, fishery rights cannot be sold, leased, transferred, or collateralized.’ Makino, Fisheries Management in Japan, at 29. 65 Ibid., at 29–31. 66 Ibid, at 63–98. 67 H. Uchida and M. Makino, ‘Japanese Coastal Fishery Co-Management: An Overview’ in R. Townsend, R. Shotton, and H. Uschida (eds.), Case Studies in Fisheries Self-governance (Rome: FAOTechnical Paper No. 504, 2008), 221–9. 68 M. Makino, H. Matsuda, and Y. Sakurai, ‘Expanding Fisheries Co-Management to EcosystemBased Management: A Case in the Shiretoko World Natural Heritage Area, Japan’ (2009) 33 Marine Policy 207–14; see also Makino, Fisheries Management in Japan, at 115–30. 69 Makino, Fisheries Management in Japan, at 115–30; see also N. Yagi, P. Akira, T. Takada, Y. and H. Kurokura, ‘Marine Protected Areas in Japan: Institutional Background and Management Framework’ (2010) 34 Marine Policy 1300–6.

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regulation of marine capture fisheries 501

23.4.3.3 New Zealand New Zealand’s first comprehensive fisheries act was adopted in 1908.70 In its early days it included mainly input restrictions such as areal and seasonal closures, and gear restrictions. A licensing system was first introduced in 1945. In the 1960s the government started to promote the expansion of the fisheries sector by creating incentive schemes for modernization of the fleet and providing subsidies. Until the proclamation of the New Zealand EEZ in 1977, fishing activities by New Zealand fishers largely concentrated on near-shore areas. As soon as foreign fleets were excluded from that area, fishing there was encouraged by the government, which led to overfishing and overcapacity in just a few years.71 It soon became apparent that input-restrictions would not sufficiently protect fisheries resources from overexploitation and new conservation strategies needed to be found. TACs were first established for different management areas in 1983, and in 1986 a Quota Management System (QMS) came into force.72 Under the QMS regime, fishers are allocated marketable shares of the annual TACs which are set for species and regions. The QMS system has been subject to several revisions, targeting specific issues, including by-catch issues in multi-species fisheries. A specific feature of the New Zealand fisheries law is the need to recognize Maori traditional fishing rights.73 The long negotiated agreement between the government and Maori has been included in the Fisheries Act since 1996 (see also Maori Fisheries Act 2004).74 Today, in New Zealand, marine capture fishing activities are regulated under the Fisheries Act of 199675 and of the Fisheries Act of 198376 (although much of the 1983 Act has been repealed, both Fisheries Acts remain in force), the just mentioned Maori Fisheries Act 2004,77 the Driftnet Prohibition Act 1991,78 and the Antarctic Marine Living Resource Act 1981.79 Under these laws, management competences are assigned and fishing activities are regulated. Notably, a market-based quota management system is established. The Maori Fisheries Act (together with the relevant provisions in the Fisheries Act) aims specifically at guaranteeing Maori traditional and customary fishing rights.80 Marine farming is separately governed by the Aquaculture Reform (Repeals and Transitional Provisions) Act 2004.81 Resource and environment related legislation potentially relevant to marine capture fisheries and marine farming (e.g. environmental and amenity impacts of near-shore sites) is particularly 70 The Fisheries Act 1908, Public Act 1908 No. 65. 71 On the development outlined here, see SOCIOEC, ‘Socio-economic Effects of Management of the Future CFP’, at 51–5. 72 New Zealand Fisheries (Quota Management Areas, Total Allowable Catches, and Catch Histories) Notice 1986 (SR 1986/267). 73 R. Bess, ‘New Zealand’s Indigenous People and Their Claims to Fisheries Resources’ (2001) 25 Marine Policy 23–32. 74 With further references, see S. Reeves, Environmental Law of New Zealand (BV., The Netherlands: Kluwer Law International, 2015), 366–72. 75 Fisheries Act 1996, Public Act 1996 No. 88. 76 Fisheries Act 1983, Public Act 1983 No. 14. 77 Maori Fisheries Act 2004, Public Act 2004 No. 78. 78 Driftnet Prohibition Act 1991, Public Act 1991 No. 18. 79 Antarctic Marine Living Resource Act 1981, Public Act No. 53. 80 Reeves, Environmental Law of New Zealand, at 366–72. 81 Aquaculture Reform (Repeals and Transitional Provisions) Act 2004, Public Act 2004 No. 109.

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502 till markus included in the Resource Management Act 1991, Marine Mammal Protection Act 1978, the Wildlife Act 1953, the Marine Reserves Act 1971, the Conservation Act 1987, several acts protecting different marine parks, and the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012.82

23.4.4 Regulation of the Management Process 23.4.4.1 The EU Under EU law most political and legislative initiatives connected with the CFP, including the adoption of management measures, originate in the EU Commission. The Commission relies on scientific data to a great extent; stock assessments are especially important and they are provided by the International Council for the Exploration of the Sea (ICES), different regional fisheries management organisations (RFMOs), Member States, and third-party countries. The scientific data is then analysed within the Commission and prepared for legislative and administrative purposes. The Commission also relies on communication with the sector, other stakeholders, and the Parliament (who has become a co-legislator for many CFP aspects through the adoption of the Lisbon Treaty in 2009).83 Stakeholder communication at EU level mainly takes place within the Fisheries Committee of the European Parliament, the Consultative Committees on Fisheries and Aquaculture (ACFA) and, since 2004, within the Regional Advisory Councils (now ‘Advisory Councils’).84 When consultations are over, the Commission draws up a final proposal and forwards it to each Council (the EU’s most important legislative organ). At the end of each year each Council is responsible for establishing TACs, effort limitations, and technical measures for the upcoming year for commercially important stocks.85 In the context of the 2013 reform it was decided that TACs must increasingly be set at MSY-levels (and also follow a multi-annual management approach) and that all catches will have to be landed in the future (after a transitional phase).86 In addition, management decisions are to implement a precautionary and ecosystem-based approach.87 TACs are subdivided into national quotas for each Member State, ensuring that the resources listed in each TAC

82 See overview in K. Edmonds, ‘Regulatory and Instrumental Structure of Environmental Law’ in P. Salmon and D. Grinlinton (eds.), Environmental Law in New Zealand (Wellington: Thomson Reuters, 2015), 436–532, at 480–96).; see also T. Daya-Winterbottom, ‘Protection of the Coastal and Marine Environment’ in Salmon and Grinlinton (eds.), Environmental Law in New Zealand, at 702–88, at 737–47). 83 Markus and Salomon, ‘The Law and Policy Behind the Upcoming Reform of the Common Fisheries Policy’, at 259–61. 84 Interest representation also takes place at the national level, fishing industries lobbying their respective governments which then represents their interest at EU level, see C. Lequesne, The Politics of Fisheries in the European Union (Manchester: Manchester University Press, 2004), 32–7. 85 See e.g. 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. 86 See e.g. Art. 15 of Regulation (EU) No 1380/2013. 87 Article 2(2) and (3) of Regulation No 1380/2013, see also T. Markus, ‘Making Environmental Principles Work under the Common Fisheries Policy’ (2010) 3 European Environmental and Energy Law Review 133–44.

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regulation of marine capture fisheries 503 regulation are divided according to the principle of relative stability,88 according to which each Member State receives a given percentage of the stock. Fishing up the quotas may only take place in specific areas listed in the annual TAC regulations (called ‘ICES-areas’).89 Member States are obliged to implement quotas effectively, that is, to specify access and allocation conditions, and to apply their own method for distributing TAC quotas assigned to them among their fishermen (deciding e.g. to allocate it to producer organizations or individual fishers, or to introduce tradable quotas).90

23.4.4.2 Japan In contrast to the EU system, licensing is the primary management tool in Japan. Two types of licences exist to restrict the overall number of fishing vessels, depending upon whether the fishery operates nationwide or on a prefectural scale. National licences are granted by the government, and prefectural licences by the prefectures. Pertinent management decisions are, however, adopted and implemented by local or fisheries specific sector organizations, particularly the FCAs. Based on their own empirical knowledge as well as scientific information provided by government, the FCAs govern fishing activities through, for example, gear and area restrictions (including no-take zones), TACs, and minimum catch sizes. FCAs also control and enforce their rules. Significantly, FCAs also form fisheries management organisations (FMOs), which have been defined as ‘group[s] of fishers who share the same fishing ground and/or operate in the same fishery and are collectively engaged in resource and/or harvest management according to mutually agreed terms’.91 Despite lacking legal status, they adopt all kinds of combinations of self-imposed fishing regulations, including rotations schemes, fishing effort limitations, no-take areas, or TACs.92 Increasingly, it seems that Japanese environmental laws affect fishing activities, particularly through the establishment of marine protected areas (MPAs) under the Nature Conservation Law 1952, the Natural Park Law 1957, and the Wildlife Protections and Hunting Law 2002. All of these MPAs are administered by the Ministry of the Environment and may include catch restrictions.93

23.4.4.3 New Zealand In New Zealand, the Ministry of Primary Industries (responsible for fisheries management) also relies on scientific assessment when taking management decisions. Many of the exploited stocks are assessed on bi- or tri-annual basis. Research and information are, inter alia, provided by the National Institute of Water and Atmospheric Science, the Ministry itself, scientists, fisheries managers, the seafood industry, fishers, and sometimes NGOs. The Ministry is required to establish and chair so called ‘fish-stock assessment working groups’ (FAWGs) and ‘research planning groups’ (RPGs), in whose work all of these parties may participate.

88 See Art. 16(1) of Regulation (EU) No 1380/2013. On the legality of the principle of relative stability, see Case 46/86, Romkes v Officier van Justitie [1987] ECR, paras. 12 et seq. 89 ICES-areas can be viewed at http://www.ices.dk. 90 See Art. 16(6) and 21 of Regulation (EU) No 1380/2013. 91 Uchida and Makino, ‘Japanese Coastal Fishery Co-Management: An Overview’, at 224. 92 Ibid., at 225. 93 Makino, Fisheries Management in Japan, at 116–18.

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504 till markus FAWGs activities are also guided by the government’s Harvest Strategy Standards of 2008.94 After consultation ends, the Ministry produces an annual ‘Assessment Plenary Report’, including information on all exploited stocks (assessed or not assessed).95 A specific branch within the Ministry (the Operations Group) uses the Assessment Plenary Report to draw up a draft version of its intended advice for the Minister called the Initial Position Paper or IPP. The IPP is made publicly available and constitutes the basis for a consultation process. The Ministry is required to acknowledge, analyse, and summarize submissions, and include them in the final advice paper which is submitted to the Minister for decision-taking (usually in September, right before the start of the new fishing season).96 Measures regulating the taking of fish and allocation decisions are usually taken by the Minister. Traditionally, New Zealand’s fisheries take is almost exclusively governed by TACs (including a landing obligation for most stocks).97 The Minister is required to set TACs for each stock in a specific management area with the objective of maintaining or restoring at a level that can produce MSY.98 After their adoption, TACs are distributed among interested groups, including the commercial sector (this proportion is referred to as the total allowable commercial catch or TACC). The most specific feature of New Zealand’s fisheries law is the design of its access regime. On the first day of each fishing year, quota holders receive an Individual Tradable Quota (ITQ), expressed as a percentage of the TACC. ITQs provide quota holders catch rights for specific stocks and they are tradable among New Zealand citizens. Where landings exceed quotas, fishers are still allowed to acquire fishing rights or carry forward 10 per cent of their quota. Where these possibilities are exhausted they will be charged with a landing tax.99

23.4.5 Laws and Policies Affecting the Functioning and Effectiveness of Fishing Regulation The functioning and effectiveness of fisheries rules can be affected by many different policies and laws other than those specifically regulating fisheries. For example, positive long-term effects on the state of the stocks and fishers’ income are likely to result from ambitious marine environmental policies, efforts to coordinate fisheries with other maritime activities, or regulations promoting private eco-labelling schemes.100 In contrast, transport, agricultural (including forest), tourism, or industry policies may have adverse (side) effects on sustainable fishing, especially where they lack consideration of their impacts on the marine environment and species. Misguided fisheries policies themselves may also negatively pressure fisheries resources. One important example is the support for already overcapitalized production sectors through 94 New Zealand Government—Ministry of Fisheries, Harvest Strategy Standard for New Zealand Fisheries (2008), available at: https://www.mpi.govt.nz/document-vault/728. 95 Marschal, Lallemand, Stokes, and Thébaud, ‘A Comparative Review of the Fisheries Resource Management Systems in New Zealand and in the European Union’, at 465–6. 96 Ibid., at 466. 97 Ibid., at 471. 98 New Zealand Fisheries Act 1996, s. 13(2). 99 Marschal, Lallemand, Stokes, and Thébaud, ‘A Comparative Review of the Fisheries Resource Management Systems in New Zealand and in the European Union’, at 471, 473. 100 For an overview, see FAO, Private Standards and Certifications in Fisheries and Aquaculture (Rome: FAO Fisheries and Aquaculture Technical Paper 553, 2010).

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regulation of marine capture fisheries 505 subsidies or open access policies. The EU and Japan both have a long tradition in supporting their production sectors.101 New Zealand, in turn, provided incentives and subsidies to the industry during the early 1960s (which then contributed to a rapid increase of the fleet), but has not provided subsidies since then and has even decided to recover substantial parts of the administrative costs from the sector.102

23.4.6 Critical Performance Assessment and Comparison 23.4.6.1 Commonalities and Differences The three systems discussed in the foregoing sections constitute paradigms of current, important, and substantially different approaches to fisheries management. These legal responses have developed in response to situations and issues that bear both similarities and differences. In all three cases, fisheries sectors contribute just a small fraction to GDPs, are currently run by an aging group of fishers, and substantially expanded throughout the 1960s up to the early 1980s due to technological progress, government support, and the changing structure of the international law. All of them have responded to increasing pressure on resources by establishing and continuously revising management regimes that restrict and direct fishing activities, all of them now acknowledging—though some are more committed to making positive changes than others—the importance of managing target stocks at MSY-levels and protecting their surrounding ecosystems. Substantial differences exist, however, with regard to the size and structural diversity of the sectors, the dependency on imports, the geographical areas to be governed, cultural traditions (particularly the cultural importance of fisheries and fish consumption), the legal traditions, and to some extent the political attitude towards market-based instruments and financial government interventions. The EU constitutes a special case, since it adopts rules at a supranational level for highly diverse fisheries, relying on Member States with varying interests and administrative capacities for implementation.

23.4.6.2 System Specificity Each system studied has some outstanding characteristics, measures, and strategies that could potentially have some paradigmatic value for other fisheries regimes. Despite much criticism, EU fisheries law is an example of systematically and rationally developed law, designed by technically and legally highly qualified experts in the area of fisheries science, economics, and law. The legal texts present a high level of awareness by law-makers with regard to the developments in fisheries, marine sciences, international law, policies, and politics. The underlying scientific base of fisheries decisions in particular has often been praised, namely the cooperation with ICES. In addition, the EU has since 2008 taken up the challenge to develop a more integrated maritime policy. The so-called Marine Strategy Framework Directive in particular provides a common reference frame within which

101 European Parliament, Global Fisheries Subsidies, at 10–32; Markus, European Fisheries Policies. 102 Marschal, Lallemand, Stokes, and Thébaud, ‘A Comparative Review of the Fisheries Resource Management Systems in New Zealand and in the European Union’, at 463–81.

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506 till markus the different maritime activities and multiple pressures, including fisheries, can increasingly be managed toward achieving a good environmental status.103 Japan’s co-management system is especially interesting. Unlike in many other developed countries, management decisions are—in principle at least—largely adopted by those who fish. Accordingly, their knowledge about the resources, the sector, and the environment, their personal interest in sustaining fishing opportunities, as well as in the functioning and effectiveness of management rules is thus tapped to achieve sustainability.104 Unlike in the EU, for example, it seems that fishing activities in Japan can be restricted through the adoption of environmental legislation for ecosystem conservation purposes.105 New Zealand fisheries law provides for several outstanding characteristics. First, it seems that, despite remaining and reoccurring issues, a generally constructive and positive way was found to ensure traditional use rights and interests of indigenous communities. The agreement existing between the New Zealand government and the Maori seems to have, at least to some extent, served to appease existing conflicts.106 New Zealand is also one of the few systems which recovers administrative costs from the fishing industry and is thus one of few that assigns environmental costs (in part) to resource users. Notably, New Zealand’s marked-based quota system is widely regarded as having substantially contributed to reducing overcapacities and overfishing.107 Above all, the cessation of subsidization avoids the contradictory spending that leads to or maintains overfishing.

23.4.6.3 Specific Shortcomings Each system has been criticized for specific shortcomings. These negative characteristics may also be worth deeper consideration and serve other fisheries regimes in avoiding the same mistakes. The intensity of criticism regarding the three different laws and management systems presented here differs substantially. While the CFP’s basic structure has been criticised repeatedly for decades, criticisms on Japan’s and New Zealand’s fisheries do not appear quite as fundamental. EU fisheries laws have been scathed for being too complex (particularly the technical and effort regulations) and thus too costly and cumbersome to implement, control, and enforce. Fisheries management regulations also have been perceived as establishing a non-inclusive decision-taking system that generates illegitimate and short-term oriented management decisions. Moreover, the system’s inconsistencies of management and trade rules towards other policies and laws has drawn admonition (particularly with structural and environmental measures, but also with development policies).108 Finally, its basic principles and policy goals have been described as imprecise, often resulting in insufficient guidance for decisions and implementation.109 103 Markus, Schlacke, and Maier, ‘Legal Implementation of Integrated Ocean Policies’, at 1–32. 104 Uchida and Makino, ‘Japanese Coastal Fishery Co-Management: An Overview’, at 227–8. 105 Makino, Fisheries Management in Japan, at 115–30; with regards to the EU, see Salomon, Markus, and Dross, ‘Masterstroke or Paper Tiger’, at 76–84. 106 Reeves, Environmental Law of New Zealand, at 366–77; see also Bess, ‘New Zealand’s Indigenous People and Their Claims to Fisheries Resources’, at 23–32. 107 SOCIOEC, ‘Socio-economic Effects of Management of the Future CFP’, at 54. 108 See n. 40. 109 See particularly in European Commission, Green Paper—Reform of the Common Fisheries Policy, COM(2009) 163 final.

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regulation of marine capture fisheries 507 With regard to Japan, it is notable that its highly praised and inclusive co-management system has not always been able to prevent pressure on stocks in coastal fisheries. It is suspected that existing rules have not adequately fitted together management units with natural resources and processes.110 Many of the management measures are still directed at single species, as opposed to taking multiple species into account.111 It has also been put forward that due to the strong position of FCAs, non-fisheries interest may often not be fully represented at the local level.112 Finally, it may be reminded that Japanese fishers have hunted whales against the premises of international law under the guise of ‘scientific research’113 and that Japan, being the main importing market for already pressured tuna species, is in some ways acting in contradiction with its international commitments towards sustainability. New Zealand’s fisheries system as it is currently regulated under New Zealand fisheries law has been criticized for not yet being fully integrated into a more comprehensive national ocean policy.114 Largely for historical reasons fishing and environmental conservation activities have been regulated under separate regimes. Following different conceptions of sustainability, this may, in practice, lead to frictions in management.115 The World Wide Fund for Nature (WWF) recently stated that the Fisheries Act’s principles and objectives would need revising in order to achieve ‘greater balance between utilisation and sustainability’.116 In addition, it claimed that the requirement to base management decisions on sound scientific research is not realized. The WWF asserts that the system is founded on ‘incomplete and limited’ information, and also that its underlying theoretical assumptions are ‘limited in their effectiveness to achieve long-term sustainable fisheries’.117 Finally, fisheries management rules and decisions occasionally seem to have neglected the application of the precautionary principle regarding the conservation of specific marine mammals protected under nonfisheries-laws (e.g. the māui dolphin).118

23.5 Concluding Remarks It is clear that laws governing marine capture fishing activities in different areas of the world have evolved to meet the problem of overfishing. Some factors contributing to overfishing are common, some are region or case specific. The varying legal responses are thus both 110 Uchida and Makino, ‘Japanese Coastal Fishery Co-Management: An Overview’, at 226. 111 Ibid. 112 Ibid. 113 See International Court of Justice (ICJ), Whaling in the Antarctic (Australia v Japan: New Zealand intervening) 2014; A. Gillespie, Whaling Diplomacy (Cheltenham: Edward Elgar, 2005). 114 Such a policy does not yet exist, see Royal Society of New Zealand, Future Marine Resource Use (2012); K. Mulcahy, R. Peart, and A. Bull, Safeguarding Our Oceans: Strengthening Marine Protections in New Zealand (Auckland: Environmental Defence Society Incorporated, 2012). 115 Regarding structural fragmentation and different regulatory approaches in New Zealand’s marinerelated regimes, see G. Severinsen, ‘Constructing a Legal Framework for Carbon Capture and Storage in New Zealand: Approaches to Legislative Design’ (2014) 63 Energy Procedia 6629–61. 116 WWF NZ, ‘Submission on the Review of the New Zealand Fisheries Management System’ (2015), 8–13, available at: http://awsassets.wwfnz.panda.org/downloads/wwf_submission_on_the_2015_nz_ fisheries_management_reforms__dec_final_.pdf. 117 Ibid. 118 Daya-Winterbottom, ‘Protection of the Coastal and Marine Environment’, at 785–6.

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508 till markus determined by factors inherent to fishing as well as by historical, cultural, political, legal, and socio-economic characteristics. While one of the main purposes of comparative law is to provide lawyers with new ideas on how to contribute to solving specific social problems through law, transferring legal concepts is never trivial, if even possible.119 For example, while the introduction of a market-based quota system seems to have worked fairly well in New Zealand to increase efficiency in the sector and reduce overcapacities, similar earlier efforts had failed in Japan (before the Second World War). There, fisheries rights became concentrated in the hands of the few, many fishermen were impoverished, and management became largely inflexible and uncoordinated.120 In addition, market measures in fisheries are such a highly disputed topic that EU Member States could not agree on adopting a union-wide system during the 2012 reform.121 Those difficulties in transferring regulatory ideas and mechanisms, however, must not keep us from making comparisons and reminding ourselves of other possible regulatory solutions; though they may seem distant, far-fetched, or even revolutionary from our own law’s perspective, these ideas that have been successful for others may be ones that bring about the change needed to solve our own persistent issues.

23.6 Acknowledgements Valuable comments from Dr Greg Severinsen, Faculty of Law, Victoria University of Wellington, New Zealand and Dr. Aiko Endo, Research Institute for Humanity and Nature (RIHN), Japan, are gratefully acknowledged. All limitations, errors, or obscurities remain entirely the author’s responsibility.

23.7 Select Bibliography Churchill, R. and Owen, D., The EEC Common Fisheries Policy (Oxford: Oxford University Press, 2010). Daya-Winterbottom, T., ‘Protection of the Coastal and Marine Environment’ in P. Salmon and D. Grinlinton (eds.), Environmental Law in New Zealand (Wellington: Thomson Reuters, 2015), 702–88. Makino, M., Fisheries Management in Japan (Heidelberg: Springer Verlag, 2011). Markus, T., European Fisheries Law—From Promotion to Management (Groningen: Europa Law Publishing, 2009). Marschal, P., P. Lallemand, K. Stokes, and O. Thébaud, ‘A Comparative Review of the Fisheries Resource Management Systems in New Zealand and in the European Union’ (2009) 22 Aquatic Living Resources 463–81. Reeves, S., Environmental Law of New Zealand (BV., The Netherlands: Kluwer Law International, 2015). Salomon, M., T. Markus, and M. Dross, ‘Masterstroke or Paper Tiger—The Reform of the EU’s Common Fisheries Policy’ (2014) 47 Marine Policy 76–84.

119 A classic text on transplants is A. Watson, Legal Transplants (Georgia: University of Georgia Press, 1995); critical, see P. Legrand, ‘The Impossibility of Legal Transplants’ (1997) 4 Maastricht Journal of European and Comparative Law 1111–24. 120 Makino, Fisheries Management in Japan, at 25–6. 121 Salomon, Markus, and Dross, ‘Masterstroke or Paper Tiger’, at 76–84.

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chapter 24

Gen etica l ly Modified Orga n isms Anne Saab

24.1 Overview

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24.2 Risk Assessment and Regulation

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24.2.1 Risk Assessment in the EU and the US: Precautionary Versus Permissive Approaches 24.2.2 Risk Regulation in the EU and the US: Process Versus Product Regulation 24.2.3 From Differences to Disputes 24.2.4 Risk Assessment and Regulation in Other Jurisdictions 24.2.4.1 Brazil 24.2.4.2 China 24.2.4.3 Costa Rica 24.2.5 Comparative Approaches to Risk Assessment and Regulation of Genetically Modified Foods

24.3 Labelling of Genetically Modified Organisms

512 515 516 517 517 518 520 520

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24.4 Intellectual Property Rights and Genetically Modified Organisms524 24.4.1 Legal Framework 24.4.2 Comparative Approaches to Patenting Genetically Modified Organisms

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24.5 Concluding Remarks

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24.6 Select Bibliography

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24.1 Overview Genetically modified organisms (GMOs) are a subject of great excitement as well as great controversy. GMOs are organisms of which the genetic material has been altered in a way that does not occur naturally.1 Modern biotechnology techniques allow scientists to identify and extract specific genes from one organism and insert them into another organism. Genetic modification or genetic engineering can be used on animals, plants, and microorganisms such as bacteria. The technique is used to develop organisms with favourable traits, such as drought- or insect-resistant plants and specific immune functions in animals. While these technologies are a source of hope and anticipation for scientists looking to further biotechnology,2 GMOs at the same time are a source of immense concern and opposition.3 Concerns include ethical questions as to whether it is desirable to ‘tweak with nature’, environmental concerns including biodiversity loss and contamination, and human and animal health concerns. Discussions about GMOs are particularly fierce when it comes to genetically engineered foods. The first generation of genetic modification applications in plants focused on pesticideand herbicide-resistance. Scientists and biotechnology corporations engineered plants in such a way that chemical pesticides and herbicides killed only the insects, without damaging the rest of the plant.4 These early applications were directed primarily at producers’ needs. Later applications turned to more consumer-oriented needs, such as taste, shelf-life, and nutritional value of food. The first genetically engineered food to be commercially grown and allowed for human consumption was the Flavr Savr tomato. California-based company Calgene developed the Flavr Savr tomato to ripen more slowly, delaying the rotting process while retaining the tomato’s colour and flavour. The US Food and Drug Administration (FDA) approved Flavr Savr for commercialization and human consumption in 1994, after testing had shown this particular GM food to be safe.5

1 World Health Organization, ‘Frequently Asked Questions on Genetically Modified Foods’, available at: http://http://www.who.int/foodsafety/areas_work/food-technology/faq-genetically-modified-food/en/. 2 See e.g. D. Rotman, ‘Why We Will Need Genetically Modified Foods’ (December 2013) MIT Technology Review, available at: https://www.technologyreview.com/s/522596/why-we-will-need-genetically-modified-foods/; T. Folger, ‘The Next Green Revolution’ (October 2014) National Geographic, available at: https://www.nationalgeographic.com/foodfeatures/green-revolution/. 3 See e.g. S. Krimsky and J. Gruber (eds.), The GMO Deception: What We Need to Know About the Food, Corporations, and Government Agencies Putting Our Families and Our Environment at Risk (New York: Skyhorse Publishing, 2014); J. Robbins, ‘Can GMOs Help End World Hunger?’ The Huffington Post (8 January 2011); Greenpeace, ‘What’s Wrong With Genetic Engineering (GE)?’, available at: http:// www.greenpeace.org/international/en/campaigns/agriculture/problem/genetic-engineering/. 4 The best known cases are Monsanto’s herbicide-resistant Roundup Ready crops, which were first commercialized in 1996. The interesting part is that Monsanto held the patent rights on the herbicide, Roundup, and on the herbicide-resistant crops, Roundup Ready. See K. Aoki, ‘Food Forethought: Intergenerational Equity and Global Food Supply—Past, Present, and Future’ (2011) Wisconsin Law Review 399–478, at 457. 5 G. Bruening and J. M. Lyons, ‘The Case of the FLAVR SAVR Tomato’ (2000) 54 California Agriculture 4, at 1.

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Genetically Modified Organisms 511 Since the Flavr Savr tomato, genetic engineering of foods has developed and grown enormously. GM technology has been referred to as the ‘fastest growing crop technology in the history of modern agriculture’.6 It is estimated that about 90 per cent of all corn, soy, cotton, canola, and sugar beets grown commercially in the United States are genetically modified. Other big producers of genetically modified crops include Argentina, Brazil, Canada, Australia, and China.7 With the European Union in the lead, other countries, including Japan, Korea, and New Zealand,8 have taken a more sceptical and cautious approach to GMOs, particularly in foods. Suspicions about GMOs are to a large extent driven by negative consumer attitudes.9 The emergence, increase in use, as well as controversy over GMOs raise important legal questions and complexities. In a report by the Legal Office of the Food and Agriculture Organization (FAO) on law and modern biotechnology, the author writes that ‘[L]aw is one of the enabling mechanisms through which society can realize the potential and avoid the risks of modern biotechnologies’.10 This chapter explores comparative approaches to assessing and regulating risks associated with GM foods (section 24.2), labelling GM foods (section 24.3), and the application of intellectual property rights (IPRs) to GMOs (section 24.4).

24.2 Risk Assessment and Regulation One of the biggest concerns about genetically modified foods relates to the risks that these modern biotechnologies may pose for the environment and for human health. GMOs are relatively new technologies that raise a range of questions. What impact will GMOs have on their natural environment? How will species that are not genetically modified respond to the introduction of ‘unnatural’ species? What effects will the introduction of GMOs have on biological diversity, which is so essential for life? What are the possibilities of unintended consequences of genetic engineering, and how should we deal with these uncertainties? Are genetically modified foods safe for human consumption? Do the benefits of genetically modified foods weigh up against the potential risks? Do ethical concerns also play a role in assessing risk? How are the risks of genetically modified foods to be assessed and regulated? These are some of the questions that regulatory systems have to assess. As discussed next, different jurisdictions have selected different approaches and regulatory targets with regard to GMOs. Among the 6 R. Norer and C. Preisig, ‘Genetic Technology in the Light of Food Security and Food Safety’ in R. Norer (ed.), Genetic Technology and Food Safety (Switzerland: Springer International Publishing, 2016), 1–72, at 6. 7 For statistics on GMO production, see International Service for the Acquisition of Agri-Biotech Applications (ISAAA), ‘Pocket K No. 16: Biotech Crop Highlights in 2015’, available at: http://www.isaaa. org/resources/publications/pocketk/16/; GMO Compass, available at: http://www.gmo-compass.org/ eng/agri_biotechnology/gmo_planting/. 8 M.A. Pollack and G.C. Shaffer, When Cooperation Fails: The International Law and Politics of Genetically Modified Foods (Oxford: Oxford University Press, 2009), 181. 9 Norer and Preisig, ‘Genetic Technology in the Light of Food Security and Food Safety’, at 4. 10 L. Glowka for the FAO Legal Office, ‘Law and Modern Biotechnology: Selected Issues of Relevance to Food and Agriculture’ (2003) FAO Legislative Study 78, at 1.

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512 anne saab many possible illustrations, the EU and US systems have received most of the attention in the literature, perhaps as a result of their temporal precedence with respect to other systems but also because of their representative character of two different models.

24.2.1 Risk Assessment in the EU and the US: Precautionary Versus Permissive Approaches There are two main approaches to assessing risks related to GMOs. One is the precautionary approach (prohibited unless proven riskless), the other is the permissive approach (authorized unless proven risky). The precautionary approach is articulated in a number of international environmental law instruments. Its most influential formulation appears in Principle 15 of the Rio Declaration on Environment and Development, which states: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capacities. Where there are threats of serious or irreversible damage, lack of scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.11

The Cartagena Protocol on Biosafety to the Convention on Biodiversity, adopted in 2000, explicitly stipulates adherence to the precautionary principle, referring back to the Rio Declaration.12 The objective of the Cartagena Protocol is to protect biodiversity from the impacts of GMOs and other biotechnologies, particularly focusing on their transboundary movements.13 The precautionary approach puts the burden of proof on those who intend to introduce a new organism, substance or activity that may possibly lead to serious or irreversible harm to the environment. Applied to GMOs, the precautionary approach would hold that in order to allow the use of a GMO, it must be scientifically established that there is no risk to the environment or to human health. On the contrary, the permissive approach puts the burden of proof on those who contend that a GMO presents a risk to the environment or human health. In practice, the difference is important because in order for a GMO to be allowed under a precautionary approach, significant resources and time must be spent on generating evidence that the GMO in question is harmless. Unless there are publicly financed research projects targeting specific GMOs, a producer would have to bear a significant financial burden (in addition to investment in R&D) to generate sufficient evidence. Conversely, under a permissive approach the burden of developing and commercializing GMOs is less heavy. Moreover, even with significant investment, it may not be scientifically 11 1992 Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (vol. I)/31 ILM 874 (1992). Emphasis added. 12 Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 2226 U.N.T.S. 208; 39 ILM 1027 (2000). 13 Article 1 Cartagena Protocol.

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Genetically Modified Organisms 513 feasible to establish, to the standard demanded by the applicable regulations, that an organism is harmless. The differences in approach are evident when looking at the respective relevant regulations in the EU and the US. Article 191 of the Treaty on the Functioning of the European Union (TFEU) anchors the precautionary principle in EU law.14 The EU ‘has in place a comprehensive and strict legal regime on genetically modified organisms . . . , food and feed made from GMOs, and food / feed consisting or containing GMOs’.15 Since 1990, the EU has adopted laws specifically regulating GMOs separate from non-GMOs.16 Two of the main EU regulations pertinent to the assessment of risks are Directive 2001/18/EC on the deliberate release of GMOs into the environment17 and Regulation (EC) 1829/2003 on genetically modified food and feed.18 Risk assessments of GMOs must be done prior to approval for cultivation, marketing, and import in the EU. The European Food and Safety Authority (EFSA) is responsible for this. The precautionary approach guides the risk assessment and regulation of GMOs. In practice, this means that GMO food or feed must pass strict case-by-case safety assessments prior to being marketed or imported in the EU. If the specific GMO product passes the safety assessment, the European Commission grants authorization for a ten-year period, as stipulated in the two regulations previously mentioned. Unlike the EU, the US does not have specific regulations for GMOs. Rather, the US regulates GMOs via existing health, safety, and environmental law.19 The US does not adhere to the precautionary principle when it comes to GMO risk assessment and regulation. The underlying assumption in the US regulation of GMOs is that the final product is assessed, regardless of the process that is used in producing that product. This means that whether or not a food or feed product is produced using genetic engineering techniques is irrelevant in safety assessments. The production process in itself is not considered to enhance the risks related to the final product. In addition to the US, many of

14 European Union, Consolidated version of the Treaty on the Functioning of the European Union, 2008/C 115/01 (13 December 2007). 15 Library of Congress, ‘Restrictions on Genetically Modified Organisms: European Union’, available at: http://www.loc.gov/law/help/restrictions-on-gmos/eu.php. 16 Pollack and Shaffer, When Cooperation Fails, at 58. 17 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/, Official Journal of the European Communities, L 106, 17.04.2001 P. 0001–0039. 18 Regulation (EC) No. 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed, Official Journal of the European Communities, L268, 18.10.2003 P. 0001–0023. 19 The Coordinated Framework for the Regulation of Biotechnology was published in 1986 by the White House Office of Science and Technology Policy and stipulated the regulation of GMOs on the basis of product, rather than process, risk assessment. Plant GMOs are regulated by the Plant Protection Act of 2000, under the auspices of the US Department of Agriculture’s Animal and Plant Health Inspection Service. GMOs specifically in food and feed are moreover regulated through the Federal Food, Drug, and Cosmetic Act and the Public Health Service Act by the Food and Drug Administration. See also: Library of Congress, ‘Restrictions on Genetically Modified Organisms: United States’, available at: http://www.loc.gov/law/help/restrictions-on-gmos/usa.php.

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514 anne saab the world’s major producers of GMOs, including Canada,20 Argentina,21 and Australia,22 have taken a broadly similar stance in their legislation. This may explain why they have not ratified the Cartagena Protocol. These big GMO producers fear that the restrictions that could be imposed by the precautionary approach would form a barrier to free trade of GM products, disadvantaging its producers. Diverging approaches to regulating risks related to GMOs cause serious disputes between countries and regions, particularly as GM products are increasingly entering the global market. International institutions and organizations are attempting to harmonize the regulation of risks of GMOs. The Codex Alimentarius, a UN body established by the FAO and the World Health Organization (WHO) to promote harmonization in international food standards, has adopted the Principles for the Risk Analysis of Foods Derived from Modern Biotechnology.23 These principles call for safety assessments of all GM foods prior to approval for commercialization. The Codex principles do not refer explicitly to the precautionary principle,24 and there is disagreement among countries over whether the precautionary principle is implicit in the Codex principles. The US and other big GMO producers have committed to the Codex principles. The principles, however, are not legally binding and do not resolve the standoff between the precautionary approach and the permissive approach. Despite efforts by the Codex Alimentarius Commission to harmonize the regulation of GMOs across countries, significant differences remain in how to assess and manage the risks posed by GMOs. It is important to note here the major influence of consumer fears and public perception on the shaping of law and policy related to GMOs.25 Food safety scares in the 1990s in Europe had an enormous impact on public perception of GMOs that persists until today. The so-called Mad Cow Disease, Bovine spongiform encephalopathy (BSE), was a particularly powerful vector. The BSE crisis ‘made people in Europe very sensitive to new technologies in the food supply industry, and very wary of scientists and government attempts to reassure them’.26 Consumer fears are not limited to Europe, and US consumers have also shown

20 The Canadian government published the Federal Regulatory Framework for Biotechnology in 1993. The Canadian Food Inspection Agency (CFIA) is responsible for regulating GMOs. Like in the United States, regulating is done through existing regulations for ‘novel products’. See also CFIA, Regulation of Agricultural Biotechnology in Canada: A Post-Secondary Educator’s Resource 13 (2007). 21 Two main laws regulating GMOs in Argentina are the Law on Seeds and Phytogenetic Creations [Ley de Semillas y Creaciones Fitogéneticas [L.S.]], Ley 20247, Boletin Oficial [B.O.], 30 March 1973; and the 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. 22 GMOs in Australia are regulated through the Australia New Zealand Food Standards Code under Standard 1.5.2: Food produced using gene technology. The latest version of this code is from March 2016. 23 ‘Principles for the Risk Analysis of Foods Derived from Modern Biotechnology CAC/GL 44–003’ in Codex Alimentarius, Foods Derived from Modern Biotechnology (2nd edn. 2009). 24 P. Bereano, ‘A Primer on GMOs and International Law’ (12 May 2012) Genewatch, Council for Responsible Genetics. 25 Pollack and Shaffer in their book conclude that ‘[T]he best explanation for the observed transatlantic differences . . . is multi-causal, lying in the ability of interest groups to capitalize on preexisting cultural and institutional differences, with an important role played by contingent events such as the European food safety scandals of the 1990s.’ When Cooperation Fails, at 34. 26 C. Cookson and V. Houlder, ‘An Uncontrolled Experiment’ Financial Times (13–14 February 1999).

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Genetically Modified Organisms 515 concerns for GM foods. A recent study by the Pew Research Center shows that 57 per cent of American adults believe that GM foods are unsafe to eat,27 while 88 per cent of scientists believe that GM foods are safe to eat.28 There is serious criticism of ‘fear-mongering’ about GMOs, which is seen to give a false perception of the risks involved with these modern biotechnologies.29

24.2.2 Risk Regulation in the EU and the US: Process Versus Product Regulation In addition to different approaches to how risk assessment should be done—precautionary or permissive—there are different approaches to what should be the subject of risk assessment and regulation. The key distinction is between product regulation, on the one hand, and process regulation, on the other. A regulatory tool is ‘product-oriented when the risks posed by the end-product trigger review, regardless of the techniques used to produce the end product’.30 A regulatory tool is process-oriented when the techniques used to produce the end product trigger review, regardless of whether the end product is materially different. The important difference in terms of risk assessment is ‘whether there is an acceptance that the process itself brings new risks to human health and the environment or not’.31 The US and the EU again embody these different approaches to GMO risk assessment and regulation. The US relies on product regulation for GMOs.32 The National Research Council describes the basis of this regulatory approach as follows: ‘ “the product of genetic modification and selection constitutes the primary basis for decisions and not the process by which the product was obtained” ’.33 The Flavr Savr tomato was assessed according to product regulation. This tomato was found to be ‘as safe as tomatoes

27 C. Funk and L. Rainie, ‘Chapter 6: Public Opinion about Food’ (1 July 2015) in Pew Research Center, Americans, Politics and Science Issues, at 127–40. 28 Funk and Rainie, ‘Public Opinion about Food’. See also Committee on Genetically Engineered Crops: Past Experience and Future Prospects; Board on Agriculture and Natural Resources; Division on Earth and Life Studies; National Academies of Sciences, Engineering, and Medicine, ‘Genetically Engineered Crops: Experiences and Prospects’ (Washington D.C.: The National Academies Press, 2016). 29 ‘Scientists Refute the Scaremongering about GMOs’ The Washington Post (19 May 2016). 30 Glowka, ‘Law and Modern Biotechnology’, at 6. 31 S.J. Mayer, ‘The Regulation of Genetically Modified Food’ in H.W. Doelle, S. Rokem, and M. Berovic (eds.) Biotechnology: Social, Educational and Political Aspects of Biotechnology—An Overview and an Appraisal of Biotechnology in a Changing World—Part 1 (Encyclopedia of Life Support Systems (Eolss), Vol. XIII, 2009), 89–106, at 91. 32 As concluded in the Coordinated Framework for the Regulation of Biotechnology of 1986. Especially at p. 3: ‘Upon examination of the existing laws available for the regulation of products developed by traditional genetic manipulation techniques, the working group concluded that, for the most part, these laws as currently implemented would address regulatory needs adequately.’ Available at: http://www.aphis.usda.gov/brs/fedregister/coordinated_framework.pdf. 33 National Research Council, Field Testing Genetically Modified Organisms: Framework for Decisions (Washington, D.C.: National Academy Press, 1989). As cited in Lynch and Vogel, ‘The Regulation of GMOs in Europe and the United States’.

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516 anne saab bred by conventional means’.34 The US does not have special regulations for GMOs, which are regulated in the same way as conventionally bred crops.35 The EU legal regime on GMOs relies on process-based regulation. The process-based regulation is evident in the fact that the EU has distinct laws and regulations for GMOs—such as Directive 2001/18/EC on the deliberate release into the environment of genetically modified organisms and Regulation (EC) No 1829/2003 on genetically modified food and feed— treating their regulation and risk assessment distinct from non-GMOs. Even if the final GM product is not materially different from a non-GM product, risk assessment must be done when the process of making the end product is considered to be risky. This means that even though the outcome of a risk assessment may be the same for a GM and a non-GM product, the GM product will go through a separate risk assessment procedure simply because it is made using genetic engineering techniques. This is in line with the precautionary approach. The relative distrust of genetic modification techniques, particularly when applied to foods, on the part of European consumers plays a big role in this cautious approach. One of the results of these different approaches is that the US approves many more GM food products than the EU does.36 These differences often come down to the pace of approvals, rather than the outcome of the risk assessments. The separate risk assessment procedures for GM products in the EU are more time-consuming than regulating GM products under the existing regulatory framework together with non-GM products, as done in the US. It is interesting to note, however, that the US and the EU draw on similar scientific data and more often than not reach the same conclusions in terms of the safety of GM foods.37 Consumer fears and public perception again play an important role in GMO regulation.

24.2.3 From Differences to Disputes The struggle over the precautionary approach versus permissive approach, and process regulation versus product regulation between the EU and the US and other big GMO producers, has played out in a number of high-profile disputes in the World Trade Organization (WTO). The EU banned the import of beef treated with growth hormones, most notably from the US, in the late 1980s. This ban led to the so-called EC—Hormones dispute, revealing struggles between the EU and the US over how to conduct risk assessments and whether to apply the precautionary approach in international trade law.38 Similar questions arose in the later EC—Biotech case, in which the US and a number of third party claimants complained about a de facto moratorium in the EU

34 Lynch and Vogel, ‘The Regulation of GMOs in Europe and the United States’. 35 As stipulated in the Coordinated Framework for the Regulation of Biotechnology of 1986. 36 J. Lau, ‘Same Science, Different Policies: Regulating Genetically Modified Foods in the U.S. and Europe’ (9 August 2015) Science in the News (SITN), Harvard University, the Graduate School of Arts and Sciences. This article states that ‘over the past two decades, the U.S. has approved over one hundred GM crops with a single engineered trait; in contrast, the EU has approved fewer than forty’. 37 Ibid. 38 ‘Dispute Settlement: Dispute DS26 European Communities—Measures Concerning Meat and Meat Products (Hormones)’, available at: http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds26_e.htm.

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Genetically Modified Organisms 517 on the importation of biotech products.39 The EC—Hormones and EC—Biotech cases highlighted, among other things, significant differences in how to employ and interpret information from risk assessments.

24.2.4 Risk Assessment and Regulation in Other Jurisdictions The discussions about permissive versus precautionary approach and product versus process regulation have focused primarily on the differences between the US and the EU. While it is true that the US and the EU are emblematic of two main approaches, there are other countries that have followed different approaches to address their own national circumstances. This section will look into how risk assessment and regulation are governed in Brazil and China, two big GMO-producing countries, as well as in Costa Rica, a highly biodiversity-rich country.

24.2.4.1 Brazil Brazil is one of the biggest GMO producers in the world. In terms of acreage, Brazil is the second largest producer of GMO crops, after the US, with more than half of its agricultural land used for GMO production. The production and use of GMOs in agriculture began in the 1990s in Brazil. The incentive for using GMOs is to increase food production. Agriculture is at the basis of Brazil’s economy and the country is the largest global exporter of coffee, soy, and beef. Given Brazil’s dominant position in the GMO production and export, how does Brazil assess and regulate the risks? Brazil adopted a Biosafety Law in 1995.40 This law functioned in coordination with existing health, environment, and agriculture laws to incorporate risk assessment and regulation procedures specifically for GMO crops. A number of agencies and institutional actors were involved in regulating risks of GMOs, even though at this point little scientific information was available about the risks, as GM technology was still in its infancy. The 1995 Biosafety Law was not effective as a regulatory tool as there were conflicts between biosafety regulators and environmental regulators.41 In 1998, Brazil issued a ban on GMO crops in the context of contentious debates in the aftermath of the approval of RoundUp Ready soybean.42 This approval was done without a prior environmental impact assessment (EIA), to the indignation of biosafety regulators. 39 ‘Dispute Settlement: Dispute DS291 European Communities—Measures Affecting the Approval and Marketing of Biotech Products’, available at: http://www.wto.org/english/tratop_e/dispu_e/cases_e/ ds291_e.htm. 40 Biosafety Law, No. 8.974 of 5 January 1995. See also E. M. G. Fontes, ‘Legal and Regulatory Concerns of Transgenic Plants in Brazil’ (2003) Journal of Invertebrate Pathology 112. 41 Library of Congress, ‘Restrictions on Genetically Modified Organisms: Brazil’, available at: http:// www.loc.gov/law/help/restrictions-on-gmos/brazil.php. 42 G. Delfino de Souza, M. Almeida de Melo, É. Akio Kido, and P. Paes de Andrade, ‘The Brazilian GMO Regulatory Scenario and the Adoption of Agricultural Biotechnology’ The World of Food Science, available at: http://worldfoodscience.com/article/brazilian-gmo-regulatory-scenario-and-adoptionagricultural-biotechnology.

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518 anne saab Today, the regulation of GMOs in Brazil is governed by the Brazilian Biosafety Law (Law 11 105/2005) that came into effect in 2005.43 The Biosafety Law is overseen by the Brazilian Technical Committee of National Biosafety (CTNBio), a committee that was created by the Biosafety Law. This law was intended to put an end to discussions and conflicts about GMO regulation in Brazil, creating a distinct regulatory system and covering a number of issues relating to research, safety standards, and monitoring. Under this new regulatory system, so-called Internal Biosafety Committees submit information in the form of reports and requests for the release of new GMOs to the CTNBio, which evaluates these reports and requests. The CTNBio then communicates its decisions to the respective enforcement agencies—in the sectors of environment, agriculture or health—as well as to the National Biosafety Council. This Council ultimately devises specific regulations for GMOs on the basis of received information.44 The Biosafety Law acts to realize Article 225 of the Brazilian Constitution, which stipulates the ‘right to an ecologically balanced environment, which is a public good for the people’s use and is essential for a healthy life’.45, 46 The Biosafety Law ‘fosters the observance of the precautionary principle to protect the environment and human health’.47 The assessment of risks specifically of GMO foodstuffs is further regulated by Normative Resolution No. 5 of 12 March 2008.48 Article 20, paragraph 2 of this resolution stipulates that ‘[t]he existence of any risk linked to commercial release shall be stated, specifying the precautionary and mitigating measures to be taken’.49 Brazil’s Biosafety Law moreover formally adopts process regulation. The specific framework of GMO regulation created by the 2005 Biosafety Law views GMOs as inherently different in terms of risk than non-GMOs. Some authors argue that process regulation may form an unnecessary burden, especially in light of growing proof that genetic modification techniques are no less safe than conventional breeding.50 It is significant to note that, despite a GMO exporter position comparable to that of the US, Brazil has followed a different regulatory approach based on GMO-specific legislation that reflects both a precautionary approach and a focus on process.

24.2.4.2 China China is in the top five producers of GMOs worldwide, with a particular interest in realizing domestic food security. With the largest population in the world, China has a proportionately small part of the world’s arable land. In this context, food security and food self-sufficiency are central issues for China.51 China’s interest and investment in GMO food crops must be viewed against this backdrop. GMOs are considered one potential way of achieving better 43 Biosafety Law, No.11, 105 of 24 March 2005. 44 Ibid. See also Delfino de Souza et al, ‘The Brazilian GMO Regulatory Scenario and the Adoption of Agricultural Biotechnology’. 45 Constituicãda Republica Federativa do Brasil de 1988. 46 Ibid. 47 Delfino de Souza et al, ‘The Brazilian GMO Regulatory Scenario and the Adoption of Agricultural Biotechnology’. 48 Normative Resolution No. 5, of 12 March 2008. 49 Ibid. Emphasis added. 50 Delfino de Souza et al, ‘The Brazilian GMO Regulatory Scenario and the Adoption of Agricultural Biotechnology’. Specifically in the conclusion. 51 Y. Song, ‘Regulation of Agricultural GMOs in China’, paper published on NYU Law, at 5, available at: http://www.law.nyu.edu/sites/…/6th_Draft_Regulation_of_GMOs_inChina_200508.doc.

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Genetically Modified Organisms 519 food quality, higher efficiency in production, and reducing chemical inputs as a response to environmental and food safety concerns. China does not have a specific national law or legal regime for GMOs. There are several layers of regulation relating to GMOs in China.52 The first is environmental law;53 the second consists of laws specifically regulating biosafety issues of agricultural GMOs;54 the third layer constitutes regulations on biosafety issues in other areas of law, including biodiversity, forestry, labelling, veterinary medicine, and regulations on imports of GMOs;55 and the fourth is a range of technical standards on biosafety regulation for agricultural GMOs issued by the Ministry of Agriculture.56 Restrictions on GMOs are executed by ‘the agricultural GMO regulations enacted by the State Council 2001’.57 These agricultural GMO regulations fall specifically under the Ministry of Agriculture. Agricultural GMO regulations ‘outline the regulatory framework for research, testing, production, processing, marketing, import and export of agricultural GMOs’.58 The multi-layered system established by these laws and regulations subjects GMOs to risk assessments and regulation at various levels, local and national, and by a substantial number of different institutions. Despite, or perhaps more accurately because of, the complex layers of regulations and institutions involved, the effectiveness of GMO regulation overall is uncertain.59 China took part in the negotiations on the Cartagena Protocol, signed the Protocol in August 2000, and approved the Protocol in June 2005, after which it entered into force for China in September 2005. Its domestic regulations on GMOs reflect a precautionary approach. The objective of the 2001 State Council agricultural GMOs regulations includes ensuring ‘the safety of human health, animal, plant and micro-organism and eco-system’,60 and this is done principally in accordance with a precautionary approach.61 Even though China does not have a dedicated legal framework for regulating GMOs, the assortment of regulations demonstrates a process-oriented approach to assessing risks. GMOs are subject to risks assessments and regulations that are not applied to non-GMO crops.62 As in the case of Brazil, the Chinese system contrasts with that of the US, despite the fact that China is both a major producer and a major consumer of GMOs.

52 See W. Yu and C. Wang, ‘Agro-GMO Biosafety Legislation in China: Current Situation, Challenges, and Solutions’ (2012) 13 Vermont Journal of Environmental Law 866–9. 53 Environmental Protection Law of the People’s Republic of China, promulgated by National People’s Congress, 26 December 1989. 54 A host of rules and regulation on biosafety of agro-GMOs exist, including notably: Regulations on Administration of Agricultural Genetically Modified Organisms Safety, promulgated by State Council, 23 May 2001, revised 8 January 2011. 55 Yu and Wang, ‘AgroGMO Biosafety Legislation in China’, at 868–9. 56 Ibid., at 869. 57 Library of Congress, ‘Restrictions on Genetically Modified Organisms: China’, available at: http:// www.loc.gov/law/help/restrictions-on-gmos/china.php. 58 A. Y. T. Wong and A.W-K. Chan, ‘Genetically Modified Foods in China and the United States: A Primer of Regulation and Intellectual Property Protection’ (2016) 5 Food Science and Human Wellness 3, at 128. 59 Yu and Wang, ‘AgroGMO Biosafety Legislation in China’, at 873–5. 60 Song, ‘Regulation of Agricultural GMOs in China’, at 33. 61 See also Wong and Chan, ‘Genetically Modified Foods in China and the United States: A Primer of Regulation and Intellectual Property Protection’, at 128 referring to ‘precautionary measures’. 62 Song, ‘Regulation of Agricultural GMOs in China’, at 33.

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520 anne saab

24.2.4.3 Costa Rica Costa Rica is not a big GMO-producing country like Brazil and China. There is no national prohibition on GMO production and GMOs are grown in Costa Rica. There is, however, a great deal of opposition against GMOs in Costa Rica. Many local governments have some form of prohibition on the growth and production of GMOs.63 Despite local prohibitions, a GMO can be cultivated if the Ministry of Agriculture approves it.64 The first GMO was approved for production in Costa Rica in 1991. Costa Rica produces mostly GM cotton and soybean for the export market, not for local consumption.65 In early 2013, Costa Rica’s National Biosecurity Technical Commission approved the production of GM corn by two subsidiaries of Monsanto. A number of environmentalist groups strongly opposed the approval, and this led to the Ombudsman challenging the constitutionality of the approval process.66 The Constitutional Chamber of the Supreme Court in September 2014 ruled that the approval process for GMOs was unconstitutional. This decision was based on the secrecy involved in the approval process, arguing that this ‘violates the constitutional right to freedom of information’.67 The ruling was hailed a victory by environmental groups. However, it covers only the approval process and does not ban GMOs nor demand specific environmental risk assessments. Costa Rica has ratified the Cartagena Protocol on Biosafety. Risk assessments by the National Biosecurity Technical Commission are done on the basis of the requirements of the Cartagena Protocol.68 This includes a precautionary approach. The composition of the National Biosecurity Technical Commission was changed in 2004 to include two members of environmental groups and a representative from the Ministry of Environment. This was done in response to a campaign from environmental groups to take the precautionary approach to assessing food safety and biosafety more seriously.69 Costa Rica has no clear national regulation on GMOs. GMO products are essentially assessed the same was as nonGMO agricultural products, reflecting a product-based approach.

24.2.5 Comparative Approaches to Risk Assessment and Regulation of Genetically Modified Foods A comparative approach to risk assessment and regulation of GMOs can be broadly categorized into precautionary versus permissive approaches, and process versus product regulations. Much attention is geared towards opposing approaches in the US and the EU, with the former adopting a more permissive product-based regulation, and the latter a more precautionary 63 L. Fendt, ‘What You Need to Know About GMOs in Costa Rica’ The Tico Times (29 October 2013). According to this article sixty-three out of eighty-two cantons in Costa Rica ban GMOs in some form. 64 On the basis of the Plant Health Protection Law [Ley de Protección Fitosanitaria], No. 7664 of April 1997. 65 Fendt, ‘What You Need to Know About GMOs in Costa Rica’. 66 Ibid. 67 L. Fendt, ‘Costa Rican Court Hands GMO Opponents a Victory by Declaring Permitting Process Unconstitutional’ The Tico Times (11 September 2014). 68 See V. Gonzalez, ‘Costa Rica Agricultural Biotechnology Annual: Biotechnology and Other New Production Technologies Report’, USDA Foreign Agricultural Service, Global Agricultural Information Network report, 17 July 2012. 69 Ibid.

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Genetically Modified Organisms 521 process-based regulation. These theoretical binaries mask the complexities in assessing and regulating risks arising from the development and use of GMOs. There are many more nuances regarding risk assessment and regulation within and between the US and the EU, and there are moreover many more countries in the world following their own specific models. The type of risk assessment and regulation a country adopts is dependent on political and economic interests, in addition to social pressures and cultural differences. Broadly speaking, large GMO-producing countries are more resistant to a precautionary approach, as it may hinder trade and export of their products. However, what a precautionary approach entails can be interpreted in different ways. Brazil and China on paper adopt a precautionary approach, but this does not mean that the outcome of risk assessments will be the same as in the EU. This is very much dependent on how risk assessments are done. And while the EU in theory adopts a strong precautionary approach, the types of scientific data studied and the conclusions drawn in terms of food safety are often the same as in the US.70 The reality is that most countries are in the early stages of developing risk assessment and regulation on GMOs. GMOs and particularly GM foods are still comparatively new regulatory objects. The EU biotech regulations are more advanced than most others, but should not necessarily be taken as a benchmark because of the vast diversity of cultural approaches to GMOs as well as the wide variety of legal systems. As the agricultural GMO industry continues to expand, countries will continue to engage with the legal implications. As discussed next, one important technique to transfer the power (but also the burden) of encouraging or discouraging GMO production to consumers is labelling.

24.3 Labelling of Genetically Modified Organisms Labelling laws71 are relevant for GM products that are already approved for production and marketing. There are a number of aspects to labelling GM products, notably providing the consumer with information about the products that he or she is purchasing and protecting the consumer from false and misleading practices.72 Rapid developments in genetic engineering techniques, as well as powerful and contradictory opinions about these developments from producers, consumers, governments, and civil society, have influenced the regulations on labelling GMOs. One author presents the shifts in food labelling from ‘preventing fraud’ in the 1960s, to providing consumer information in the 1990s, and at present moving towards delivering health policy through labelling.73 70 See, for instance, Lau, ‘Same Science, Different Policies’. The author notes at the end of the piece: ‘Despite the differences in their two regulatory approaches, however, the U.S. and EU evaluate similar types of scientific data and generally reach the same conclusions about the safety of GM foods.’ 71 On labelling in general as an instrument of environmental protection see the contribution in this volume by Czarnezski, Pollans, and Main. 72 Glowka, ‘Law and Modern Biotechnology’, at 17. 73 A. W. Randell, ‘The Codex Alimentarius and Food Labelling: Delivering Consumer Protection’ in J. Albert (ed.), Innovations in Food Labelling (Woodhead Publishing Series in Food Science, Technology and Nutrition, 2010), 5–16.

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522 anne saab Different types of labelling exist, including: labelling when the final product has a material effect on the consumer; labelling when the final product is different from a non-GM product; and labelling when the product is not itself genetically modified, but is derived from a GM product.74 These distinctions relate to product-based regulation versus process-based regulation. Labelling of GM products can be mandatory or voluntary, depending on the international, regional, and/or national laws that apply for a certain product. Distinctions can moreover be made between positive labelling (indicating that a GM product or process is present or used) and negative labelling (indicating the absence of GM materials). The latter is often voluntary. Regulations frequently specify the level of GM presence in a product that necessitates labelling. The US, in accordance with its product-based approach, at present requires only labelling for GM products that are materially different from non-GM products. Food labelling of both GM and non-GM products is regulated by the FDA, notably through the Food, Drug, and Cosmetic Act of 1938 and the Fair Packaging and Labelling Act of 1967.75 The FDA issued a policy statement on foods derived from new plant varieties in 1992, Chapter VI of which deals specifically with labelling.76 Some states in the US, including Vermont and Maine, have attempted to pass laws to make labelling of GM foods mandatory.77 These attempts were rejected by the US Senate in July 2016, voting instead to have one national standard for labelling.78 In July 2016, Congress passed a national GMO labelling bill; however, representatives from Vermont have argued that this bill was weaker than the state law proposed by them.79 According to the new bill, the USDA would have two years from July 2016 to decide which GM foods require labelling. If this law is enacted it could effectively overturn the US focus on product-based labelling, if the USDA decides that (certain) products made using genetic engineering techniques require mandatory labelling. The EU requires labelling for products made using genetic engineering techniques, whether or not the final product is materially different.80 This is in line with process-based regulation. Two main EC regulations related to labelling of GM foods are Regulation (EC) 1829/2003 that requires labelling for genetically modified food which ‘enables the consumer to make an informed choice and facilitates fairness of transactions between seller and purchaser’81 and Regulation (EC) 1830/2003 concerning the traceability and labelling of genetically modified organisms.82 74 J. Albert, ‘New Technologies and Food Labelling: The Controversy of Labelling of Foods Derived from Genetically Modified Crops’ in Albert (ed.) Innovations in Food Labelling, at 153–67, 153–5. 75 Federal Food, Drug, and Cosmetic Act (first enacted 1938) and the Fair Packaging and Labelling Act (first enacted in 1967). See also Albert, ‘New Technologies and Food Labelling’, at 153–5 and 162. 76 Food and Drug Administration, Department of Health and Human Services, ‘Statement on Policy—Foods Derived from New Plant Varieties’, Vol. 57 No. 104, 29 May 1992, 22984. 77 S. Goldenberg, ‘Vermont Becomes First US State to Require GM Labelling for Food’ The Guardian (8 May 2014); R. Wilson, ‘Maine Becomes Second State to Require GMO Labels’ The Washington Post (10 January 2014). 78 D. Lugo, ‘U.S. Senate Passes GM Food Labelling Bill’ Science (8 July 2016). 79 ‘Congress Passes GMO Food Labelling Bill’ NBC News (14 July 2016). 80 Albert, ‘New Technologies and Food Labelling’, at 162–3. 81 Regulation (EC) No. 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed, at para 17. 82 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

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Genetically Modified Organisms 523 While controversies in GMO regulation between the US and the EU have received the most attention, other countries also have different regulations regarding labelling of GM products. Brazil issued a decree in 2003 to regulate the right to information, as guaranteed by federal law, relating to labelling of food and feed containing or produced from GMOs.83 The labelling requirement is mandatory if the GMO presence is above 1 per cent, and the reasons provided in the decree are consumer choice and the right to information.84 Argentina, which is the third largest producer of GM products after the US and Brazil, does not yet have laws requiring the labelling of GMOs.85 Australia’s labelling law does not require mandatory labelling if ‘no novel DNA or novel protein from the substance remains present in the food’.86 Japan is one of the biggest importers of GM products, and labelling is required in certain cases if GM products are used in foods.87 Japan allows up to 5 per cent ‘adventitious presence’ of GMOs without mandatory labelling, and negative labelling is allowed under certain conditions.88 Canada has mandatory labelling if the GM product differs from a non-GM variety, and voluntary labelling for process regulation.89 Mexico similarly has mandatory labelling only if the final product is different from a non-GM product.90 The many different approaches to labelling GM foods are still largely a domestic law affair. The disparities in labelling laws can form major obstacles to trade in these products.91 From the perspective of consumers, lack of uniform labelling laws can lead to confusion and exacerbate suspicions about GM products. Diverging approaches to labelling GMO products could also lead to disputes within the WTO. An overall rule of the WTO is that imports cannot be treated less favourably than ‘like’ domestic products.92 The EU requires labelling for products that are made using genetic engineering techniques, and this has caused conflicts with the US and other big GMO producers. These producers ‘see food and feed products produced from genetically modified organisms and amending Directive 2001/18/ EC. See also Albert, ‘New Technologies and Food Labelling’, at 164. 83 Decreto No. 4.680, de 24 de Abril de 2003. See also Library of Congress, ‘Restrictions on Genetically Modified Organisms: Brazil’. 84 Albert, ‘New Technologies and Food Labelling’, at 156: Table 10.2 ‘Labelling requirements for genetically modified foods from different countries’. 85 Library of Congress, ‘Restrictions on Genetically Modified Organisms: Argentina’, available at: http://www.loc.gov/law/help/restrictions-on-gmos/argentina.php. 86 Australia New Zealand Food Standards Code under Standard 1.5.2: Food produced using gene technology, under 1.5.2–4: Requirement to label food as ‘genetically modified’. Especially under section 1.b.ii. See also Albert, ‘New Technologies and Food Labelling’, at 156. 87 Law Concerning Standardization and Proper Labeling of Agricultural and Forestry Products (JAS Law), Act No. 175 of 1950, last amended by Act No. 70 of 2013. See also Library of Congress, ‘Restrictions on Genetically Modified Organisms: Japan’, available at: http://www.loc.gov/law/help/restrictions-ongmos/japan.php. 88 Albert, ‘New Technologies and Food Labelling’, at 157. 89 Food labelling is the joint responsibility of Health Canada and the Canadian Food Inspection Agency, under the Food and Drugs Act (R.S.C., 1985, c. F–27). See also Albert, ‘New Technologies and Food Labelling’, at 157. 90 Article 101 GMO Law [Ley de Bioseguridad de Organismos Genéticamente Modificados] of 18 March 2005. See also Albert, ‘New Technologies and Food Labelling’, at 159. 91 Glowka, ‘Law and Modern Biotechnology’, at xv. 92 T. Josling, ‘A Review of WTO Rules and GMO Trade’ International Centre for Trade and Sustainable Development (13 April 2015).

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524 anne saab this as a way of giving credibility to those who are opponents of biotechnology’.93 There have to date not been any cases within the WTO related to labelling of GMOs.94 Tensions between the EU and the US came to the fore particularly in the context of negotiations of the Transatlantic Trade and Investment Partnership (TTIP), with the former keen to keep mandatory labelling laws.95 Efforts are being made to harmonize international regulation of GMO labelling. The Codex Alimentarius leads the attempts to harmonize international standards on GMO labelling. After almost twenty years of struggle within the Codex Alimentarius Commission, a guidance document was adopted in July 2011 that recognized that countries can have labelling requirements for genetically modified foods, including mandatory labelling.96 Big GMO producers including the US have committed to the Codex guidelines.97 This sets the Codex guidelines apart from the Cartagena Protocol, although the guidelines are not mandatory. The importance of the Codex guidelines on labelling GM products is that it can shield countries who label GM products from legal threats within the WTO.98 The approval of the guidance document has been hailed by some as a victory for consumer rights over trade-related restrictions on labelling.99 It has, however, not resolved disagreements or changed positions significantly. Fundamental conflicts remain over whether labelling should be voluntary or mandatory, what should be labelled and to what end.

24.4 Intellectual Property Rights and Genetically Modified Organisms Some commentators argue that the biggest problem with GMOs is not that they are genetically modified, but that these products and technologies are increasingly subject to intellectual property rights.100 Risk regulation and labelling are directly related to GMOs. Questions of whether living organisms should be subject to intellectual property protection, and who should be the rights holders and on what basis, are indirectly related to GMOs. 93 Ibid. 94 Ibid. 95 See, for instance, G. Vanbergen, ‘The New Atlantic Trade and Investment Regime (TTIP): EU GMO Rules Will be Scrapped. EU Commission Caves in to US Demands’ Global Research (27 April 2016); N. Sagener, translated by E. Körner, ‘Agricultural Commissioner Promises GMO labelling, despite TTIP’ EurActiv (16 January 2015). 96 Bereano, ‘A Primer on GMOs and International Law’. 97 The Cartagena Protocol includes in Art. 18(2) a stipulation about labelling, but this concerns the identification of living modified organisms specifically for the purpose of transboundary movement. See also Glowka, ‘Law and Modern Biotechnology’, at 24. 98 The report of the thirty-ninth Codex Committee on Food Labelling, which took place in Québec, Canada, 9–13 May 2011, and where the guidelines were agreed upon, can be found here: http://www. codexalimentarius.net/download/report/765/REP11_FLe.pdf. 99 See e.g. ‘Consumer Rights Victory as US Ends Opposition to GM Labelling Guidelines’ Consumers International (5 July 2011). 100 F. Kaufman, ‘Genetically Monetized Food’ Slate (20 December 2012); M. Nestle, ‘The Problem with Genetically Modified Foods’ The Atlantic (5 November 2010).

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Genetically Modified Organisms 525

24.4.1 Legal Framework Intellectual property rights (IPRs) encompass a whole range of rights, and in the context of living organisms including plants and animals, patent rights are the most controversial. A patent right is a temporary exclusive right granted to an inventor that allows excluding others from using the patented process or product, in exchange for disclosing information about how the invention works. Patent rights and other forms of intellectual property protection are often justified as rewards for the author/inventor and as incentives to innovate. Without the prospect of obtaining a temporary exclusive right, the theory holds, there would be no incentive to invest in developing new products and ideas that can be copied for free by others.101 Patentable subject-matter must be ‘new’ and involve an ‘inventive step’.102 Living organisms were historically not considered to be patentable subject-matter, as they were viewed not as man-made inventions but as existing in nature. They were discoveries rather than inventions. This view changed in the first half of the twentieth century. The Plant Patent Act (PPA)103 passed by the US Congress in 1930 was ‘the first intellectual property rights regime for plants anywhere in the world’.104 The PPA granted protection only to asexually reproducing plants. The later Plant Variety Protection Act (PVPA) of 1970105 granted patent protection to all plant varieties. In Europe, the Union for the Protection of New Varieties of Plants (UPOV, the acronym of the Union’s French name) was created in 1960, and the first UPOV Convention came into being in 1961.106 It stipulated the concept of plant variety rights (PVRs) or plant breeders’ rights (PBRs),107 a type of intellectual property protection designed specifically for breeders developing new varieties of plants. Plant variety rights contain exceptions to exclusive control, including exemptions for breeders’ further research and limited own use of farmers, that are not present in regular patents.108 These early forms of intellectual property protection on plants were linked to the use of conventional and hybrid breeding techniques, and unrelated to GMOs. The emergence of modern genetic engineering techniques has had considerable effects on the application

101 See, for instance, W. Fisher, ‘Theories of Intellectual Property’ in S.R. Munzer (ed.), New Essays in the Legal and Political Theory of Property (Cambridge: Cambridge University Press, 2001), 168–200. 102 Article 27(1) TRIPS Agreement defines patentable subject-matter. 103 C. Fowler, ‘The Plant Patent Act of 1930: A Sociological History of its Creation’ (2000) 82 Journal of the Patent and Trademark Office Society 621. 104 A.J. Stenson and T. Gray, The Politics of Genetic Resource Control (New York; Basingstoke: St. Martin’s Press; Macmillan, 1999), 10–11. 105 B. Erker and M.A. Brick, ‘The Plant Variety Protection Act’, Colorado State University, fact sheet no. 0.301, November 2014, available at: http://www.ext.colostate.edu/pubs/crops/00301.html. 106 International Convention for the Protection of New Varieties of Plants, International Union for the Protection of New Varieties of Plants. Entry into force 10 August 1968, revised on 10 November 1972, 23 October 1978, and 19 March 1991. 107 The UPOV Convention 1991 refers to ‘breeders’ rights’, see Art. 1(v). The terms ‘plant variety rights’ and ‘plant breeders’ rights’ refer to the same concept. The former emphasizes the value of the plant variety; the latter emphasizes the labour of the breeders. 108 L.R. Helfer and Food and Agriculture Organization of the United Nations, Intellectual Property Rights in Plant Varieties: International Legal Regimes and Policy Options for National Governments (Rome: FAO, 2004), FAO Legislative Study, 25–8.

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526 anne saab of patent rights on living things.109 Two pioneering cases in the US reveal the link between genetic engineering and patent rights. The US Supreme Court in 1980 in the case of Diamond v Chakbrabarty overturned a decision by the patent examiner to reject a patent on a genetically modified bacterium.110 The patent examiner had rejected the patent application arguing that bacteria are living things that were generally understood not to be patentable under US law. The Supreme Court, however, held that ‘the relevant distinction was not between living and inanimate things, but between products of nature, whether living or not, and human-made inventions’.111 The Court held that a genetically engineered bacterium is a man-made invention, and not a product that occurs in nature, and was therefore patentable. The US Patent and Trademark Office (USPTO) expanded the scope of the Chakrabarty decision in the 1985 case of Ex Parte Hibberd.112 In this case, the USPTO overturned a patent examiner’s rejection of a patent application on a genetically engineered maize seed. The USPTO rejected the idea that ‘artificially bred’ plants are ‘products of nature not subject to patent protection’.113 Although these two cases were judged under US domestic law, the decisions had a considerable impact on global debates about patenting GMOs. On the international level, the most significant piece of legislation relating to patent living organisms is the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement), established in 1995 under the WTO.114 Article 27(3)(b) TRIPS stipulates that States Parties: may exclude from patentability . . . plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.115

The last sentence cited here effectively makes the application of some form of intellectual property protection on plant varieties mandatory. There has been and remains a great deal of discussion and controversy about this article.116 Proponents argue that IPRs are necessary to incentivize important innovation, claiming that GMOs are human inventions. Opponents contend that IPRs are monopolistic tools for big corporations, and that living organisms— genetically modified or not—should not be subject to intellectual property protection. 109 European Patent Office, ‘Patents on Biotechnology’, available at: http;//www.epo.org/news-issues/ issues/biotechnology.html. 110 Diamond, Commissioner of Patents and Trademarks v Chakrabarty, 447 U.S. 303, 308–9 (1980). See also B.D. Wright and P.G. Pardey, ‘The Evolving Rights to Intellectual Property Protection in the Agricultural Biosciences’ (2006) 2 International Journal of Technology and Globalisation 1/2, at 16. 111 Diamond v Chakrabarty, at 314. 112 Ex Parte Hibberd, 227 U.S.PQ. 443 (Bd. Pat. App. & Int. 1985). 113 Ibid. For the full text, see: http://www.iplawusa.com/resources/227_USPQ_443.pdf, at *9. 114 Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, in The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations 1869 U.N.T.S. 299; 33 I.L.M. 1197, 1994. 115 Ibid. Plant variety protection as stipulated in the UPOV Convention is an example of a sui generis system. 116 See, for instance, Genetic Resources Action International (GRAIN), ‘For a Full Review of TRIPS 27.3(B) an Update on Where Developing Countries Stand with the Push to Patent Life at WTO’ (March 2000), available at: http://www.grain.org/article/entries/39-for-a-full-review-of-trips-27-3-b.

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Genetically Modified Organisms 527 The TRIPS Agreement is particularly important because every member of the WTO is automatically a party to TRIPS. The adoption of the TRIPS Agreement has, in the words of one commentator, ‘done more to encourage the legal protection of plant varieties than any other international instrument’.117

24.4.2 Comparative Approaches to Patenting Genetically Modified Organisms The clash over plant patents can largely be characterized as a clash between technology rich, resource poor, developed countries and technology poor, resource rich, developing countries.118 Developed countries’ rationale for providing patent rights is still based predominantly on the economic incentives theory: if we do not grant patent rights, then biotech corporations would not invest in developing GM crops that are beneficial to society. Developing countries view patent rights on plants and plant genetic resources as a way for large biotech nology corporations—backed by developed country governments—to dominate the global food system, without providing benefits to most of the world. Indian activist Vandana Shiva has said that ‘[t]he only reason crops have been genetically engineered is to take patents on seeds, and collect royalties’.119 The US and the EU have more advanced intellectual property laws than most developing countries. The US has a legal system that provides broad patent rights, including on (GM) foods. The USPTO defines patentable subject-matter as follows: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.120

As the decisions in Chakbrabarty and Ex Parte Hibberd demonstrate, patents can be granted on (GM) living organisms, as long as these are ‘human-made’. The US also has specific legislation for plant patents, with requirements specific to plants. Title 35, Section 161 of the United States Code provides for the regulation of plant patents. A patent can be granted for asexually reproduced plant varieties produced using any of a number of techniques, including but not limited to genetic engineering.121 The US

117 L.R. Helfer, ‘Regime Shifting: The TRIPS Agreement and New Dynamics of International Intellectual Property Lawmaking’ (2004) 29 Yale Journal of International Law 33. 118 H. Stein, ‘Intellectual Property and Genetically Modified Seeds: The United States, Trade, and the Developing World’ (2005) 3 Northwestern Journal of Technology and Intellectual Property 2, at 173–4. See also S.K. Sell, ‘Industry Strategies for Intellectual Property and Trade: The Quest for TRIPS, and Post-TRIPS Strategies’ (2002) 10 Cardozo Journal of International and Comparative Law 95. 119 V. Shiva, ‘GMOs, Seed Wars, and Knowledge Wars’, Navdanya, available at: http://www.navdanya. org/news/282-gmos-seed-wars-and-knowledge-wars. 120 United States Patent and Trademark Office, Appendix L: Patent Law, Chapter 10: Patentability of Inventions’, §101—Inventions patentable. 121 Title 35, Section 161 of the United States Code. See: http://www.uspto.gov/patents-getting-started/ patent-basics/types-patent-applications/general-information-about-35-usc-161.

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528 anne saab does not have specific regulations on patenting biotechnological inventions, but regulates the patenting of GMOs through patent law and/or plant patent law. In 1998, the EU adopted Directive 98/44/EC on the legal protection of biotechnological inventions.122 The objective of the Directive is to harmonize patent laws in the EU, clarifying what is and what is not patentable subject-matter when it comes to biotechnological inventions, including GMOs. The ‘Biopatent Directive’ stipulates that ‘[B]iological material which is isolated from its natural environment or produced by means of a technical process may be the subject of an invention even if it previously occurred in nature’.123 The Directive also spells out that ‘plants or animals are patentable if the application of the invention is not technically confined to a single plant or animal variety’.124 The Biopatent Directive allows the patenting of GMOs in the EU. The EU has also recently approved patents on conventionally bred crops.125 Almost all countries are party to the TRIPS Agreement and therefore bound to provide some form of intellectual property protection on plant varieties, but the acceptance, interpretation, and application of this obligation differ between countries. India is a vocal critic of patent rights on plant varieties. Under the leadership of Vandana Shiva, a number of patent rights on plants have been rejected or revoked.126 These are not all related to GMOs, but do set a tone of resistance against plant patents. The Indian Patents Act of 1970 in Article 3(j) excludes from patentability ‘plants and animals in whole or any part thereof other than micro organisms but including seeds, varieties and species and essentially biological processes for production or propagation of plants and animals’.127 This is partly in line with Article 27.3(b) TRIPS, but explicitly includes ‘seeds, varieties, and species’, suggesting a more stringent exclusion to patentability. South Africa is the biggest GMO producer in Africa,128 a continent that generally views GMOs with great suspicion. As in many other countries, there is serious resistance against the application of patent rights on GMOs, as this is seen to favour multinational corporations and interfere with farmers’ ability to save seeds.129 South African patent law, however, 122 Directive 98/44/EC of the European Parliament and of the Council of 6 July 1998 on the legal protection of biotechnological inventions, Official Journal of the European Communities, L2123/13, 30 July 1998. 123 Ibid., Art. 3(2). 124 Ibid., preamble at para. 29. See also European Patent Office, ‘Patents on Biotechnology’, available at: http;//www.epo.org/news-issues/issues/biotechnology.html. 125 C. Saez, ‘EPO Backs Patents On Conventional Plants: Broccoli, Tomato Cases Decided’ IPWatch (1 April 2015). 126 This includes a patent on turmeric grated by UPSTO by the University of Mississippi (K.S. Jayaraman, ‘US Patent Office Withdraws Patent on Indian Herb’ (4 September 1997) 389 Nature 389), a patent on the Neem tree granted by the EPO to the US Department of Agriculture and chemical firm W.R. Grace (BBC, India Wins Landmark Patent Battle (9 March 2005), and most recently a patent on ‘[a] method for producing a transgenic plant, with increasing heat tolerance, salt tolerance or drought tolerance’ by Monsanto (Vandana Shiva, ‘Monsanto’s Climate Resilient Plant Patent Rejected by India’s Patent Office, Rejection Upheld by the Intellectual Property Appellate Board’ Navdanya (6 July 2013). 127 Intellectual Property India, The Patents Act, 1970 (19 September 1970). As amended by the Patents (Amendment) Act 2002. 128 Library of Congress, ‘Restrictions on Genetically Modified Organisms: South Africa’, available at: http://www.loc.gov/law/help/restrictions-on-gmos/south-africa.php. 129 BioWatch South Africa, ‘GM Crops’, available at: http://www.biowatch.org.za/list.php?cat=GM%20 crops.

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Genetically Modified Organisms 529 follows the wording of Article 27.3(b) TRIPS and does leave space for patenting GMOs. Article 4(b) South African Patents Act of 1978 states that ‘[a] patent shall not be granted . . . for any variety of animal or plant or any essentially biological process for the production of animals or plants, not being a micro-biological process or the product of such a process’.130 GMOs can easily be interpreted to fall outside of this exclusion. The controversies surrounding intellectual property protection and GMOs are not necessarily about IPRs per se or about GMOs per se. The central issue is that genetic modification is viewed as a means to granting patent rights—stronger than plant variety rights—to food crops, and that most patent rights are owned by large biotechnology corporations. The issue is really about access to seeds and food crops and distribution of benefits from GMOs. The question is: Why are corporations such as Monsanto granted temporary exclusive patent rights for genetically modifying crops, while the farmers in developing countries who have preserved and cultivated these crops for thousands of years are given no credit?131 The concept of farmers’ rights132 has been coined as a means to oppose strong corporate patent rights and strive for more recognition of the contribution of farmers. India explicitly recognizes farmers’ rights in the Protection of Plant Varieties and Farmers’ Rights Act of 2001.133 Other countries that have domestic legislation on farmers’ rights include Malaysia, Indonesia, Thailand, and the Philippines.134 The TRIPS Agreement has had an enormous impact on intellectual property law relating to plants and plant genetic resources. While most countries have adopted—or are in the process of adopting—some form of IPRs for plants, including GM foods, the interpretation and application thereof varies. Moreover, opposition to patent rights in the form of farmers’ rights are included in some domestic laws. The rise in patent rights on GMOs has put the spotlight on broader ethical, socio-economic, and cultural questions including: Do we need GMOs and who do they benefit?

24.5 Concluding Remarks It is evident that genetically modified foods raise a host of challenges and concerns, not the least for law- and policy-makers. Law- and policy-makers have to determine whether to adopt a precautionary approach or a permissive approach, whether to assess only the product or also the process, and how GMOs should be labelled. Lawyers are tasked with making sure the applicable regulations—at national, regional, and international level—are complied with. The application of IPRs to GMOs forces legal scholars to consider the justification for 130 South Africa Patents Act 1978 (Act No. 57 of 1978, as amended up to Patents Amendment Act 2002). 131 S.S. Marglin, ‘Farmers, Seedsmen, and Scientists: Systems of Agriculture and Systems of Knowledge’ in F. Apffel-Marglin and S.A. Marglin (eds.), Decolonizing Knowledge: From Development to Dialogue (New York: Oxford University Press, 1996), 185–243, at 204. 132 The term, ‘Farmers’ Rights’ is included in Art. 9 International Treaty on Plant Genetic Resources for Food and Agriculture, Food and Agriculture Organization. Entry into force 29 June 2004. 133 The Indian Protection of Plant Varieties and Farmers’ Rights Act of 2001. 134 A.P. Singh and P. Manchikanti, ‘Sui Generis IPR Laws vis-à-vis Farmers’ Rights in Some Asian Countries: Implications under the WTO’ (2011) 16 Journal of Intellectual Property Rights 107–16.

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530 anne saab IPRs as well as GMOs. Debates about GMOs arouse tensions between the US and the EU, and also between developed and developing countries, not to mention fierce disagreement within countries and regions. Law- and policy-makers as well as scholars will need to continue to actively engage in the whole range of questions that GMOs present, acknowledging that law and regulation are only one part of the answer.

24.6 Select Bibliography Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, in The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations 1869 U.N.T.S. 299; 33 I.L.M. 1197, 1994. Albert, J. (ed.), Innovations in Food Labelling (Woodhead Publishing Series in Food Science, Technology and Nutrition, 2010). Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 2226 U.N.T.S. 208; 39 ILM 1027 (2000). 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/. Glowka, L. for the FAO Legal Office, ‘Law and Modern Biotechnology: Selected Issues of Relevance to Food and Agriculture’ (2003) FAO Legislative Study 78. Pollack, M.A. and G.C. Shaffer, When Cooperation Fails: The International Law and Politics of Genetically Modified Foods (Oxford: Oxford University Press, 2009). Stenson, A.J. and T. Gray, The Politics of Genetic Resource Control (New York; Basingstoke: St. Martin’s Press; Macmillan, 1999). Regulation (EC) No 1829/2003 of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed.

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chapter 25

Clim ate Ch a nge a n d En ergy Tr a nsition Policies Justin Gundlach and Michael B. Gerrard

25.1 Overview

532

25.2 Climate Change Regulation

533

25.2.1 Scope and Structure of the Regulation 533 25.2.1.1 Comprehensive Regulation 533 25.2.1.2 Patchworks of Old and New Laws 536 25.2.1.3 Policy But No Laws 538 25.2.1.4 Gestures Towards Policy Only 539 25.2.2 Segments of Government: Levels and Branches 540 25.2.2.1 Levels: National, Sub-national, and Local 540 25.2.2.2 Branches: Executive and Legislative Roles 543 25.2.2.3 Branches: Courts and Litigation 543 25.2.3 Principal Legal Techniques 544 25.2.3.1 Quantitative Targets 544 25.2.3.2 Pricing Emissions: Taxes and Cap-and-Trade Schemes547 25.2.3.3 Command and Control 548 25.2.3.4 Subsidies and Tax Incentives 548 25.2.3.5 Information 549 25.2.3.6 For Non-Fossil Fuel Sources of Greenhouse Gases 550 25.2.3.6.1 Land Use, Land Use Change, and Forestry (LULUCF) 550 25.2.3.6.2 Methane from Solid Waste and Wastewater552 25.2.3.6.3 High-GWP Substances 553

25.3 Energy Transition Regulation

25.3.1 Scope and Structure of the Governing Law 25.3.2 Substantive Provisions

554 554 555

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532 justin gundlach and michael b. gerrard 25.3.2.1 Energy Efficiency and Electrification 556 25.3.2.1.1 Buildings 556 25.3.2.1.2 Equipment and Appliances 558 25.3.2.1.3 Vehicles 559 25.3.2.2 Renewable Energy 561 25.3.2.2.1 Mandates and Incentives to Ensure Price-Competitiveness561 25.3.2.2.2 Siting of Transmission Lines 562 25.3.2.2.3 Integrating Renewables into Grid Operations and Accounting 564 25.3.2.3 Fossil Fuels 565 25.3.2.3.1 Ongoing Developments 566 25.3.2.3.2 Nuclear Phase-Out First 566 25.3.2.3.3 Incidental Constraints 567 25.3.2.3.4 Fuel-Switching 567 25.3.2.3.5 Carbon Capture and Sequestration/Utilization568 25.3.2.3.6 Fossil Fuel Subsidies 568 25.3.2.4 Nuclear 569

25.4 Role of International Agreements in National Activities

571

25.5 Evaluation

574

25.6 Concluding Remarks

577

25.7 Select Bibliography

577

25.4.1 Supporting Low-Emissions Development 25.4.2 Dealing with F-gases 25.4.3 Controlling Aircraft and Marine Shipping Emissions

25.5.1 Effectiveness 25.5.1.1 Performance of Energy Efficiency Measures 25.5.1.2 The Role of Circumstance 25.5.1.3 Replacing Coal is Not the Same as Decarbonizing 25.5.2 Transferability of Techniques

571 572 573

574 574 575 576 576

25.1 Overview Most countries are engaged in some form of energy transition away from fossil fuels and toward greater energy efficiency and low- or non-emitting energy sources, or at least aspire to do so. Climate change is foremost among the reasons for undertaking this transition, owing to the causal relationship among climate change, greenhouse gas (GHG) emissions, and fossil fuel consumption. But while those national policies that seek to mitigate and adapt to climate change and those that encourage an energy transition overlap, sometimes substantially,1 this chapter discusses each category of policy separately. 1 See e.g. the German Integrated Climate Change and Energy Programme, also called the ‘Meseburg Programme’ of 27–8 August 2007. The programme consisted of measures relating to energy efficiency,

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climate change and energy transition policies 533 To keep its scope manageable, the chapter offers rough typologies of particular subcategories and illustrates them with select examples from a wide range of jurisdictions.2 Following this survey of regulations and policies to address climate change (section 25.1) and to accomplish energy transition (section 25.2), section 25.3 discusses the roles of key international agreements. Section 25.4 offers brief analytic observations about factors important to the effectiveness and transferability of policies discussed earlier in the chapter. Before describing categories into which countries’ legal and policy approaches to climate change and energy can be divided, it is important to spell out the precise meaning of several key terms as they appear in this chapter. ‘Law’ refers to any measure that is binding on either a government or private party; ‘legislation’ or ‘statutes’ are generated by whatever body has national legislative authority; a ‘regulation’ is legally binding as a result of executive action; ‘executive action’ is used here to describe policy decisions whose scope of legal effect varies widely across countries, but that, unlike a regulation, does not necessarily have legally binding effect; finally, ‘policy’ refers to any set of measures formally announced by a government and is not necessarily formally binding unless embodied in some form of law.

25.2 Climate Change Regulation 25.2.1 Scope and Structure of the Regulation Many countries have addressed the challenge of climate change by adopting comprehensive laws that create a framework for all other policies related to climate change mitigation and/ or adaptation. Other countries have done so by adopting—to greater or lesser degrees—new laws that address climate change piecemeal without displacing existing laws that do not, yielding a patchwork. Still other countries’ approaches involve the adoption of climate change policy but no laws codifying it (this category has shrunk substantially over the last decade). Finally, a fourth category of countries has no climate change policy whatsoever.

25.2.1.1 Comprehensive Regulation ‘Comprehensive’ regulatory approaches to climate change action establish overarching emissions targets or budgets to guide national mitigation efforts, risk assessments, and adaptation agendas, as well as procedural and institutional measures to support progress toward compliance with both.3 Such approaches often do not specify how mandates should be implemented, leaving that task to sector-specific legislation or implementing regulations. renewable energy, biofuels, the alignment of the gas tax rate to fuels’ GHG-intensities, and requirements for labeling and recovery of refrigerants. Background Paper: Costs and Benefits of the German Government’s Energy and Climate Package (Berlin: Federal Environment Ministry, October 2007), available at: http:// bit.ly/2c4iLfY. 2 Please note also, this chapter is up to date through early 2017. Developments since then are not reflected in its contents. 3 Other catalogues of climate change-related legislation have used ‘flagship’ or ‘framework’ to refer to legislation that provides a ‘comprehensive, unifying basis for climate change policy’. M. Nachmany et al., 2015 Global Climate Legislation Study: Summary for Policymakers (London: London School of Economics, 2015), 28.

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534 justin gundlach and michael b. gerrard The majority of countries that have adopted laws expressly responsive to climate change have taken a comprehensive approach,4 authorized either by decision of the full legislature— as in Brazil,5 Mexico,6 New Zealand,7 South Korea,8 and the United Kingdom9—or through regulations adopted by the executive with tacit legislative approval—as in China,10 Fiji,11 India,12 Pakistan,13 and the Netherlands.14 The framework laws of the United Kingdom and India, summarized here, provide examples of each. The UK Climate Change Act 2008 (echoed and reinforced by the Scottish Parliament’s Climate Change Act 2009)15 sets an emissions reduction target of 80 per cent from a 1990 baseline by 2050, as well as specifying increasingly tight emissions budgets for the five-year periods leading up to 2050.16 The first three five-year budgets were set in 2009; the fourth, approved by Parliament in 2011, calls for a 50 per cent reduction from a 1990 baseline by 2025; and the fifth calls for 57 per cent reduction by 2030. The Act also establishes an independent, expert Committee on Climate Change, which is to provide recommendations to the government and to report annually on compliance with the emissions budget.17 Importantly,

4 Ibid., at 13 (noting that of the ninety-nine countries surveyed, only seventeen lack any framework laws; fifty-eight have framework laws that address both mitigation and adaptation, eighteen have framework laws that address mitigation only, and six have framework laws that address adaptation only). 5 [Brazil] Lei Nº 12.187, de 29 de Dezembro de 2009, Diário Oficial da União [D.O.U.], Edição Extra, 29.12.2009, Página 109 (establishing the National Policy on Climate Change); Decreto Nº 7.390, de 9 de Dezembro de 2010, Diário Oficial da União [D.O.U.] de 10.12.2010, Página 4 (implementing National Policy on Climate Change). 6 [Mexico] Ley General de Cambio Climático [General Law on Climate Change], as amended, 2 de april de 2015, Diario Official de la Federación [DO], 6 de junio de 2012. 7 [New Zealand] Climate Change Response Act 2002, Pub. Act 2002 No, 40; Resource Management (Energy and Climate Change) Amendment Act 2004, Pub. Act 2004 No. 2. 8 [South Korea] Framework Act on Low Carbon, Green Growth, Act No. 9931, 13 January 2010. 9 [UK] Climate Change Act 2008, c. 27. 10 [China] National Climate Change Program (Beijing: National Development and Reform Commission, 2007). The Commission has released updated versions of the National Climate Change Program each year since 2007, with the exception of 2010. See also People’s Republic of China, 12th Five-Year Plan for National Economic and Social Development (2011–2015) (2011) (legislation adopted by the National People’s Congress incorporating carbon-intensity targets first announced in advance of COP 15 in 2009 in Copenhagen). Formally speaking, China has yet to adopt legislation that expressly pursues climate change mitigation goals. See A. L. Wang, ‘Climate Change Policy and Law in China’ in C. P. Carlene et al. (eds.), The Oxford Handbook of International Climate Change Law (Oxford: Oxford University Press, 2016), 635–69, at 651. 11 Republic of Fiji, National Climate Change Policy (Suva: Secretariat of the Pacific Community, 2012), available at: http://bit.ly/29Sk93U. 12 [India] Prime Minister’s National Council on Climate Change, National Action Plan on Climate Change (New Dehli: Government of India, 2008), available at: http://bit.ly/1l7lnhS. 13 [Pakistan] Ministry of Climate Change, National Climate Change Policy (Islamabad: Government of Pakistan, 2012), available at: http://bit.ly/29G32SY; Government of Pakistan, Climate Change Division, Framework for Implementation of Climate Change Policy (2014–2030) (Islamabad: Government of Pakistan, 2013), available at: http://bit.ly/2bT5UwW. National Climate Change Policy (2012), available at: http://bit.ly/29G32SY. 14 [Netherlands] Ministry of Infrastructure and the Environment, National Climate Agenda: Resilient, Prosperous and Green (The Hague: Ministry of Infrastructure and the Environment, 2013). 15 Climate Change (Scotland) Act 2009, (A.S.P. 12) (setting matching overarching emissions reduction target). 16 [UK] Climate Change Act 2008, ch. 27, paras. 4–10. 17 Ibid., paras. 32–43.

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climate change and energy transition policies 535 the government must explain itself whenever it rejects the Committee’s advice,18 as it did in 2012 on the question of whether to include in the five-year budgets emissions from international aviation and maritime shipping with a nexus to the United Kingdom.19 This reporting requirement is the primary means of enforcing these legally binding budgets, as the Act does not create a private cause of action pursuant to which private actors might sue the government for failure to implement either particular provisions or the Act as a whole.20 In addition to establishing this overarching mitigation framework, the Act’s various other provisions include a call for a climate change risk assessment every five years,21 and authorization for the government to launch subsidiary programmes like the Carbon Reduction Commitment Energy Efficiency Scheme, which targets emissions not covered by the European Union’s GHG Emissions Trading Scheme and calls on the country’s largest electricity consumers to reduce their carbon footprints through improvements to energy management.22 India’s National Action Plan on Climate Change is a nonbinding coordinating document, first issued by the Prime Minister’s National Council on Climate Change in 2008.23 Unlike India’s Five Year Plans, which set targets for economic growth, the National Action Plan does not set any overarching target for emissions reduction. Instead, it describes ‘National Missions’, each of which serves climate change mitigation and/or adaptation goals.24 The 2008 plan contained eight National Missions, addressing: solar energy, energy efficiency, forests, ‘strategic knowledge for climate change’ or research and development, water, sustainable habitat, sustaining the Himalayan ecosystem (focused on protecting water supplies flowing from the north of India), and sustainable agriculture. In 2014 the Council added four more to address: wind energy, human health, coastal resources, and waste-to-energy.25 Some but not all of the National Missions draw on pre-existing legislation—for instance, the Mission to Enhance Energy Efficiency builds on the Energy Conservation Act of 2001. Although 18 Ibid., para. 9. 19 Committee on Climate Change (CCC), Scope of Carbon Budgets: Statutory Advice on Inclusion of International Aviation and Shipping (London: The Stationery Office, 2012); [UK] Department for Energy and Climate Change (DECC), International Aviation and Shipping Emissions and the UK’s Carbon Budgets and 2050 Target (London: DECC, 2012), para. 3. 20 See G. Kaminskaitė-Salters, Constructing a Private Climate Change Lawsuit Under English Law: A Comparative Perspective (New York: Wolters Kluwer, 2010), 93; see also R. (Hillingdon LBC) v Secretary of State for Transport [2010] EWHC 626 (rejecting approval of third airport runway at Heathrow Airport because its environmental review had failed to consider GHG emissions impacts and instructing the government to conform aviation policy that allowed for such approvals to Climate Change Act 2008). 21 [UK] Climate Change Act 2008, para. 56; see also e.g. CCC, UK Climate Change Risk Assessment 2017 Synthesis Report (London: CCC, 2016), available at: http://bit.ly/29DF65L; Department of Environment, Food & Rural Affairs (DEFRA), UK Climate Change Risk Assessment: Government Report (London: The Stationary Office, January 2012), available at: http://bit.ly/29GA0Va. 22 See [UK] DECC, DEFRA, and Environment Agency, Policy Paper: 2010 to 2015 Government Policy: Energy Demand Reduction in Industry, Business and the Public Sector (2012; updated February 2016), available at: http://bit.ly/1Q7oW5B. 23 [India] Prime Minister’s National Council on Climate Change, National Action Plan on Climate Change (New Dehli: Government of India, 2008), 2, available at: http://bit.ly/1l7lnhS. 24 Government of India, Twelfth Five Year Plan (2012–2017) (New Dehli: India Planning Commission, 2013), 228, para. 7.112, available at: http://bit.ly/2bRQmgL. 25 A. Since, ‘Four New Missions to Boost Response to Climate Change’ India Express, 3 January 2015, available at: http://bit.ly/1Aw1tj3; Government of India, Twelfth Five Year Plan, at 118, 228–9 (noting addition of National Wind Energy Mission).

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536 justin gundlach and michael b. gerrard comprehensive in many respects, the National Action Plan is not the sole basis of climate change-related policy: the National Clean Energy Fund, for instance, which draws revenue from a tax on coal and allocates it to the development of renewable electricity generation capacity, was established in 2011 by the Cabinet Committee on Economic Affairs.26

25.2.1.2 Patchworks of Old and New Laws Patchworks of old and new laws comprise some that are expressly oriented to climate change, others that are incidentally responsive to climate change, and still others that are indifferent to it. Laws in the middle category, which govern areas such as land use, energy use, air pollution, environmental protection, and environmental impact review, were often not written with climate change in mind, but can nonetheless provide a legal basis for acting on climate change. Argentina, Canada, and the United States provide characteristic examples of patchworks: although the limited legislation that expressly addresses climate change in each country has not substantially reoriented policy, regulations and other executive actions have begun to do so, largely by applying existing legislation to the new purpose of climate policy. Argentina’s national legislature voted to ratify the Kyoto Protocol in 2001,27 and in 2007 enacted a forest conservation law whose express goals included carbon sequestration.28 It also enacted renewable energy legislation in 2007 and again in 2015, in both instances making express mention of emissions reduction goals.29 A series of presidential decrees have stitched these measures together with the country’s constitutional commitment to sustainable development,30 and its General Environmental Act of 2002, which established the Secretariat of Environment and Sustainable Development (SAyDS).31 Those decrees made the SAyDS responsible for compliance with commitments Argentina made to the UNFCCC in 2002,32 created an office for participation in the UNFCCC’s Clean Development Mechanism (CDM) in the same year,33 and created the Argentine Carbon Fund to manage investments in emissions reduction and sequestration projects in 2005.34 To implement these legal measures and climate policy more generally, in 2010 the SAyDS created an intragovernmental steering committee, the Governmental Commission on Climate Change, which has a leading role in formulating and implementing Argentina’s National Strategy on Climate Change.35 26 See generally R. Pandey et al., The National Clean Energy Fund of India: A Framework for Promoting Effective Utilization (New Dehli: Springer India, 2014). 27 [Argentina] Ley No. 24.295, 11 de enero de 1994, [LIV-A] A.D.L.A. 1994, página 56; [Argentina] Ley No. 25.438, 20 de junio de 2001 [LXI-D] A.D.L.A. 4022, página 1. 28 [Argentina] Ley No. 26.331, 19 de diciembre de 2007 [LXVIII-A] A.L.D.A., página 29 (Minimum Standards for the Environmental Protection of Native Forests). 29 [Argentina] 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); Ley No. 27.191, B.O. 21.10.2015 (same). 30 [Argentina] Art. 41 Constitución Nacional, http://bit.ly/29EKvLE. This provision was added in 1994. Ibid., Sixteenth Temporary Provision. 31 [Argentina] Ley No. 25.675, B.O. 28.11.2002 (General Environmental Act). 32 [Argentina] Decreto No. 2213/2002 (Designating Secretary of the SAyDS Implementing Authority for Law No. 24.295 (UNFCCC ratification)); see also [Argentina] Consejo Federal del Medio Ambiente, Resolución No. 166 de 1 de april de 2009, available at: http://bit.ly/2ajj1vP (making SAyDS responsible for preliminary steps toward compliance with UNFCCC and Kyoto Protocol commitments, and creating Ad Hoc Committee on Climate Change within SAyDS). 33 [Argentina] Decreto No. 822/1998. 34 [Argentina] Decreto No. 1070/2005. 35 [Argentina] Resolución No. 195 de 4 de septiembre de 2010, available at: http://bit.ly/29XrFuv.

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climate change and energy transition policies 537 Canada’s political ambivalence about how to respond to climate change36—reflected in its ratification of the Kyoto Protocol in 2002 and withdrawal from it in 201237—has generated a mixed bag of legislative and regulatory measures, including the 2005 Emissions Reduction Incentives Agency Act and the Clean Air and Climate Change Trust Fund included in the 2007 federal budget. The 2005 Act established an Agency to manage emissions reduction incentives in keeping with Canada’s ambitious emissions reduction commitment of six per cent below 1990 levels by 2012.38 But the Agency never performed this function and was ignored even by the 2007 Budget Implementation Bill, which created a C$1.519 billion Clean Air and Climate Change Trust Fund for allocation by provincial governments of federal money to emissions-reducing projects in Canada.39 Also in 2005, the Canadian Cabinet (‘Governor General in Council’) decided to add carbon dioxide and other GHGs to Schedule 1 of the regulations issued pursuant to the Canadian Environmental Policy Act (CEPA),40 thereby laying the groundwork for federal regulation of GHG emitters on the foundation of the federal government’s authority to enact criminal laws.41 Notably, a subsequent effort to amend the CEPA to expressly address GHG emissions failed in 2006,42 and the authority to regulate GHGs under CEPA was not employed until the United States began issuing GHG regulations in 2010.43 Legal authority for the regulation of GHG emissions from US sources by the federal government rests chiefly on the Clean Air Act (CAA), which was passed in 1970 and amended in 1977 and 1990.44 This pre-UNFCCC legal basis did not prevent the federal government

36 For a discussion of the political context that informs Canadian regulatory and legislative steps toward (and away from) addressing climate change directly, see J. M. Glenn and J. Otero, ‘Canada and the Kyoto Protocol: An Aesop Fable’ in J. Hollo et al. (eds.), Climate Change and the Law (Dordrecht: Springer, 2006), 489–508. 37 UN, Kyoto Protocol to the FCCC, Depositary Notification Ref. No. C.N.1313.2002.TREATIES-56 (17 December 2002) (Ratification: Canada); UN, Kyoto Protocol to the FCCC, Depositary Notification Ref. No. C.N.796.2011.TREATIES-1 (15 December 2011) (Canada: Withdrawal), available at: http://bit. ly/29KlWbn. 38 Canada Emission Reduction Incentives Agency Act, S.C. 2005, c. 30, s. 87, available at: http://bit. ly/29LazBZ; UNFCCC, ‘Kyoto Protocol: Targets for the First Commitment Period’, available at: http:// bit.ly/29CXai9. 39 Canadian Department of Finance, Budget 2007: A Stronger, Safer, Better Canada, available at: http:// bit.ly/29Zn5le (last updated 19 Mar. 2007). 40 Canadian Environmental Protection Act, 1999, S.C. 1999, c 33; Order Adding Toxic Substances to Schedule 1 to the 1999 Canadian Environmental Protection Act, SOR/2005-345, Canada Gazette: Part II, Vol. 139, No. 24, 30 November 2005; see also Environment and Climate Change Canada, ‘Carbon dioxide (CO2)’, http://bit.ly/29Xelf7 (last updated 10 Dec. 2015): Carbon dioxide was added to Sch. 1 CEPA in November 2005 through subs. 90(1). 41 See P. Becklumb, Background Paper No. 2013-86-E: Federal and Provincial Jurisdiction to Regulate Environmental Issues (Ottawa: Library of Parliament Research Publications, September 2013), available at: http://bit.ly/29Ymm0x. 42 See ‘Canada’s Clean Air Act’ [changed to ‘Canada’s Clean Air and Climate Change Act’ in committee], Bill C-30, 39th Parliament, 1st Session, 2006, Part 1. 43 See [Canada] Passenger Automobile and Light Truck GHG Emissions Regulations, SOR/2010-201; Regulations Amending the Passenger Automobile and Light Truck Greenhouse Gas Emission Regulations, SOR/2014-207; Reduction of Carbon Dioxide Emissions from Coal-fired Generation of Electricity Regulations, SOR/2012-167. 44 [U.S.] Clean Air Act, 42 U.S.C. §§ 7401–7515.

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538 justin gundlach and michael b. gerrard under President Barack Obama from issuing regulations limiting GHG emissions45—in no small part because the US Supreme Court has interpreted the CAA as applying to GHGs.46 However, reliance on pre-UNFCCC legislative authority has made those regulations more politically contentious and susceptible both to litigation and repeal by a subsequent administration. When this volume went to press, the Trump administration’s efforts to repeal all Obama-era regulations of GHGs, including the Clean Power Plan, were underway, though their ultimate outcomes are uncertain. Federal regulations that address adaptation, like those focused on mitigation, rest on statutes of an old vintage or that avoid mentioning the relevance of anthropogenic climate change to their subject-matter.47 The Energy Independence and Security Act of 2007 (EISA) and the FY2008 Consolidated Appropriations Act are lonely exceptions to the American rule of excluding climate change from legislative language.48 EISA, in addition to naming climate change among the factors for federal agencies to consider when setting targets for renewable fuel production, and as a reason to explore technologies capable of sequestering GHGs, also created an Office of Climate Change and Environment in the Department of Transportation.49 While it is more an energy transition law than a climate change law, it is notable for referencing climate change as a reason for action. As for the FY2008 appropriation, it authorized EPA to gather information consistent with a Mandatory Greenhouse Gas Reporting Rule,50 which itself was based on provisions of the Clean Air Act.51

25.2.1.3 Policy But No Laws Some governments are implementing climate change policies without (yet) codifying them legally. The list of countries in this category was substantial in the early 2000s, but has dwindled since. This is probably due in part to growing recognition of the need for climate 45 See e.g. 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); US EPA, Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 75 Fed. Reg. 31514 (3 June 2010); US EPA, Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources, 81 Fed. Reg. 35823 (3 June 2016); 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); US EPA, Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 205 (23 October 2015) (so-called ‘Clean Power Plan’ or CPP). In some cases, the legal basis of such regulation has been challenged and its implementation stayed, as for the CPP: Order in pending case, West Virginia et al v EPA et al (9 February 2016), 577 US. 46 Massachusetts v EPA, 549 U.S. 497 (2007). 47 See e.g. [U.S.] Robert T. Stafford Disaster Relief and Emergency Assistance Act, Pub. L. No. 100–707, 102 Stat. 4689 (23 November 1988), codified at 42 U.S.C. 5121–5207; Disaster Relief Appropriations Act, 2013, Pub. L. No. 112–2, 127 Stat. 4 (29 January 2013). 48 [U.S.] Energy Independence and Security Act of 2007 (EISA), Pub. L. No. 110–40, 121 Stat. 1492 (7 December 2007); Consolidated Appropriations Act, 2008, Pub. L. No. 110–61, 121 Stat. 1844 (27 December 2007). 49 [U.S.] EISA §§ 202(a)(2)(B)(ii)(I) (renewable fuels); 712(b)(3)(C) (GHG capture and sequestration research); 922(b)(2), 923(4) (establishing International Clean Energy Foundation); 1101(g) (establishing Office of Climate Change and Environment within Department of Transportation). 50 [US] Consolidated Appropriations Act, 2008, tit. II, 121 Stat. 2128. 51 US EPA, Mandatory Reporting of Greenhouse Gases, 74 Fed. Reg. 56260, 56260 (30 October 2009) (citing Clean Air Act § 307(d)), codified at 40 C.F.R. pt. 98.

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climate change and energy transition policies 539 action by citizens and governments, and in part to the support for mitigation and adaptation efforts increasingly being made available through the international mechanisms and agreements discussed in section 25.4 of this chapter. These mechanisms condition, formally or informally, recipient-countries’ participation on their establishment of domestic regulations consistent with the international programme’s goals and parameters.52 Malaysia’s National Policy of Climate Change is perhaps the quintessential example of an approach to climate policy that is not (yet) legally binding. It has not been codified, either via legislation or regulations, but, as the Prime Minister’s preface to the 2010 document explains, ‘the National Policy on Climate Change provides the framework to mobilise and guide government agencies, industry, community as well as other stakeholders and major groups in addressing the challenges of climate change in a holistic manner’.53 In the same informal vein, the Prime Minister’s Tenth Malaysia Plan 2011–15 articulates climate change policies that are being implemented—again, in most instances, without being codified in legislation or regulations.54 That Plan includes a national climate risk assessment, measures to promote energy efficiency (in buildings, machinery, and consumer products) and renewable energy sources, improved GHG-control and capture in the context of solid waste management, and conservation of forests that ‘function as carbon sinks’.55 Notably, the feed-in-tariffs for renewables called for by the Plan have been codified in the Renewable Energy Act of 2011,56 but that Act makes no mention of climate change or greenhouse gas emissions and is thus categorized in this chapter as energy legislation.

25.2.1.4 Gestures Towards Policy Only Venezuela, which has not established any climate change mitigation or adaptation policy goals or implemented any measures toward such goals, has at least acknowledged climate change. Its 2009 Law on Risk Management calls for the government to draft a National Plan for Climate Change (which the government has not done). Similarly, its Economic and Social Development Plan for 2007–13 and the follow-on plan for 2013–19 both recognize the fact and importance of climate change and call, at least on paper, for the design of a ‘National Mitigation Plan’ and a ‘National Plan of Adaptation’.57 This sort of lip service is characteristic of governments that have not acted on climate change.58 52 For an example of legislation drafted specifically to facilitate receipt of CDM and REDD+ funds, see Guatemala’s Climate Change Framework Law of 2013, Decreto No. 7–2013, D.O. 4.10.2013 (defining ownership rights of emissions reductions creditable under REDD+ and establishing public office to steer CDM and REDD+ financing to project managers). 53 National Policy on Climate Change (Ministry of Natural Resources and Environment Malaysia, 2010), available at: http://bit.ly/29SUGIx. 54 Tenth Malaysia Plan, 2011–15 (Putrajaya, Malasia: Economic Planning Unit, Malaysian Prime Minister’s Department, June 2010), available at: http://bit.ly/1Bbs8Pz, 300. 55 Ibid., at 302–5. 56 Laws of Malaysia, Act 725, Renewable Energy Act 2011 (2 June 2011), available at: http://bit. ly/29WjOlk. 57 Hugo Chávez Frías, Proposal of the Candidate of the Homeland, Commander Hugo Chávez, for the Socialist Bolivarian Government, 2013–2019 (June 2012), available at: http://links.org.au/node/3079. 58 See e.g. Kuwait, Intended Nationally Determined Contribution, 25 November 2015. The UNFCCC collects and makes available all INDCs at ‘INDCs as Communicated by Parties’, available at: http://bit. ly/1ODVSAB. Hereinafter, citations to INDCs indicate the country that submitted them, that they are INDCs, and the date of their submissions to the UNFCCC.

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25.2.2 Segments of Government: Levels and Branches 25.2.2.1 Levels: National, Sub-national, and Local Climate change is like other policy areas in that national and sub-national actors, even if they share basic goals and approaches, generally exercise different competencies. Whether enshrined legally in principles of ‘subsidiarity’59 or ‘federalism’,60 this informs the division of labour between most national governments, which establish basic policy goals and parameters for implementation, and sub-national governments, which refine and further articulate those goals and parameters in keeping with regional or local circumstances. This is not to say that the climate change policies of a given country’s national and sub-national governments are necessarily aligned—to the contrary, in some instances governments within the same national borders have adopted diverse and even conflicting approaches to climate change.61 But, whether or not national and sub-national governments agree on how to approach climate change, their distinct competencies tend to inform their approaches. The rest of this section describes examples of sub-national governments’ policies, which illustrate the importance and the limitations of sub-national efforts. British Columbia, Tokyo, and Heidelberg provide examples of sub-national governments adopting more ambitious climate change mitigation and adaptation policies than their respective national governments. Sub-national governments in Indonesia’s heavily forested regions provide an example of sub-national resistance to national climate change policies. And legal challenges brought by US states against policies of the federal government put the United States in both columns: some sub-national governments have pushed for more ambitious mitigation efforts at the national level and others have resisted such efforts. British Columbia’s carbon tax. The Canadian province of British Columbia instituted a carbon tax—North America’s first—in July 2008.62 The tax rate started at C$10 per ton of CO2, applied to all GHGs from fossil fuel combusted in the province, and was offset in fiscal terms by 59 See e.g. Art. V Treaty on European Union (TEU), available at: http://bit.ly/2ag2JB7. 60 See generally K. M. Holland et al. (eds.), Federalism and the Environment: Environmental Policymaking in Australia, Canada, and the United States (Westport, Connecticut: Greenwood Press, 1996). 61 Two comparisons illustrate the point, one from the United States and another in India. In the United States, California is an unquestioned leader on climate change mitigation. See California Global Warming Solutions Act of 2006, 2006 Cal. Stat. 89 (codified as Cal. Health & Safety Code §§ 38500–99 (West 2010)) (articulating ambitious climate change and energy transition policy goals). By contrast, Florida has avoided climate or energy transition policies, even though it is highly susceptible to sea level rise and is an outstanding candidate for substantially replacing thermal power plants cost-effectively with rooftop solar power. See T. Dickinson, ‘The Koch Brothers’ Dirty War on Solar Power’ Rolling Stone, 11 February 2016, available at: http://rol.st/1PFitt1; M. Chediak, ‘Cloudy Prospects for Rooftop Solar’s Growth in Florida: Energy’ Bloomberg, 16 February 2015; Union of Concerned Scientists, ‘The Truth about Florida’s Attempt to Censor Climate Change’ Got Science?, April 2015, available at: http://bit.ly/2ckcfY2. In India, one can make a similar comparison between Gujarat and Orissa. Compare Government of Gujarat, Climate Change Department, State Action Plan on Climate Change (Government of Gujarat, 2014), 3, available at: http://bit.ly/2bJYejX (‘Gujarat is the first State in India, the first in Asia and fourth in the world to form an independent Department for Climate Change’), with Government of Orissa, Orissa Climate Change Action Plan: 2010–2015—Draft (Government of Orissa Department of Forest and Environment, 2010), available at: http://bit.ly/2bYw9UZ (planning for development of 58 GW of new coal-fired generating capacity from 2010 to 2018). 62 [British Columbia] Carbon Tax Act, 2008 S.B.C., ch. 40 § 157.

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climate change and energy transition policies 541 reductions in provincial corporate and individual income tax rates.63 A factor crucial to the adoption of the tax was the expectation that neighbouring jurisdictions would shortly also price carbon emissions through either taxes or cap-and-trade mechanisms.64 But the tax has persisted—and seems to have driven down emissions intensity65—even after those jurisdictions shied away from assigning prices to CO2 emissions and survived for the duration of a Conservative Canadian government that withdrew from the Kyoto protocol and promoted development of the tar sands in Alberta.66 Tokyo’s cap-and-trade programme. In 2010, following adoption of GHG emissions reduction targets in its Basic Environmental Plan of 2008,67 and against the backdrop of stalled negotiations over climate policy at the federal level,68 the Tokyo Metropolitan government imposed a cap-and-trade scheme on GHG emissions from approximately 1400 ‘compliance facilities’ starting in 2010.69 It covers roughly 20 per cent of Tokyo’s emissions, which in turn are roughly 5 per cent of Japan’s emissions.70 Adoption of that scheme was incipient: neighbouring Saitama prefecture established a voluntary emissions trading scheme and linked it to Tokyo’s in April 2011, and the Japanese Diet imposed a carbon tax on petroleum and coal (albeit a modest one) in 2012.71 Heidelberg’s Bahnstadt district. The city of Heidelberg has adopted a bevy of measures to reduce emissions in a 116-hectare mixed-use development, which will occupy the site of a disused rail yard.72 Those measures include energy efficiency requirements for buildings and appliances far in excess of national standards,73 as well as carefully integrated plans for 63 British Columbia Ministry of Finance, ‘Tax Reduction Funded by the Carbon Tax’, available at: http://bit.ly/2aNV5x9 (last visited 28 July 2016). 64 See K. Harrison, ‘The Political Economy of British Columbia’s Carbon Tax’, OECD Environment Working Papers (Paris: OECD Publishing, 2013), paras. 14–16, available at: http://bit.ly/29Qzlnd. 65 C. Komanoff and M. Gordon, British Columbia’s Carbon Tax: By the Numbers (New York: Carbon Tax Center, December 2015), 2, available at: http://bit.ly/2af4gpU. 66 Hydro Quebec v Canada, R., [1997] 3 S.C.R. 213, 215, 286. 67 Tokyo Metropolitan Government, Tokyo Metropolitan Environmental Master Plan (Tokyo Metropolitan Government, March 2008), available at: http://bit.ly/1EAvnSO. 68 H. Roppongi, ‘The Role of Sub-National Actors in Climate Change Policy: The Case of Tokyo’ (June 2016) 86 Asie. Visions 13. 69 Bureau of Environment Tokyo Metropolitan Government, ‘Tokyo Cap-and-Trade Program’ for Large Facilities (Tokyo Metropolitan Government, 2012), 1(2), available at: http://bit.ly/2ci33mM. The programme includes a reporting requirement for ‘large business facilities’, meaning office buildings and industrial facilities that consume an equivalent of 1.5 million litres of crude oil. All buildings and facilities that have satisfied the criteria for ‘large business facilities’ for at least three consecutive years are considered ‘compliance facilities’ subject to the declining cap. 70 Greenhouse Gas Inventory Office of Japan, National Greenhouse Gas Inventory Report of Japan (Ibaraki, Japan: National Institute for Environmental Studies, 2014), available at: http://bit.ly/2auCLKJ. 71 International Carbon Action Partnership, ‘ETS Detailed Information: Japan-Saitama Target Setting Emissions Trading System’ (updated 12 August 2016), available at: http://bit.ly/22xq3Bp (‘Saitama’s ETS was established in April 2011 as part of the Saitama Prefecture Global Warming Strategy Promotion Ordinance. Saitama’s ETS is bilaterally linked to Tokyo’s.’); Japan Ministry of the Environment, Details on the Carbon Tax (Tax for Climate Change Mitigation), (Tokyo: Ministry of the Environment, 2012), available at: http://bit.ly/2bBo4oP. 72 Heidelberg Bahnstadt, ‘Weltweit größte Passivhaustagung: Exkursion in die Heidelberger Bahnstadt’ [World’s Largest Passivhaus Conference: Exploring the Heidelberg Bahnstadt District], 4 April 2013, available at: http://bit.ly/29Sz0Nb. 73 See [Germany] Energieeinsparverordnung [Energy Efficiency Regulation], 24 July 2007, BGBl. I S. 1519. Those code requirements were updated for a second time in 2013. Zweite Verordnung zur

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542 justin gundlach and michael b. gerrard land use, electricity generation and distribution, and transport.74 While Heidelberg is not unique for imposing requirements that align with national climate change policy goals but exceed national minimums, the Bahnstadt district is notable for pursuing national policy goals using means uniquely available to a local government and without direct incentives from the national level. Indonesian forests. The Intended Nationally Determined Contribution (INDC) that Indonesia submitted in advance of the 2015 Paris Conference emphasized the significant role Indonesia’s forests would play in national climate change mitigation efforts.75 However, controls on logging have been substantially undermined in recent years by conflicting legal mandates from national and regional governments,76 and by the Indonesian Constitutional Court’s apparent unwillingness or inability to rule that local laws are superseded even when they would seem to conflict with national laws.77 U.S. States v The Federal Environmental Protection Agency. In 2007, when the US Supreme Court decided Massachusetts v EPA,78 proponents of climate change mitigation policy were out of power at the federal level and so brought a lawsuit to challenge federal inaction; in 2016, when the D.C. Circuit Court of Appeals considered West Virginia v EPA,79 they were in power and defended such action against detractors. In the 2007 case, twelve states joined the challengers of EPA inaction and ten supported the EPA; in the 2016 case, twenty-eight states joined the challengers of EPA action and eighteen supported the EPA. These are just two of dozens challenges to EPA climate change regulations.80 Due in part to this steady stream of litigation, the basic nature of US climate change mitigation policy remains unclear and uncertain. The foregoing examples illustrate several points. First, in the context of climate change policy, national governments tend to set a combination of overarching goals and minimum requirements, leaving it to sub-national governments to decide how to achieve the overarching goals and whether to do more than the minimum required. Second, sub-national governments’ alignment with national governments on climate change policy is important— or indispensable, if sub-national governments retain significant autonomy—for that policy’s coherence and effectiveness. Third, non-alignment between national and sub-national governments is made much more problematic in countries where questions of subsidiarity or federalism are not fully resolved. And fourth, however ambitious they are, sub-national Änderung der Energieeinsparverordnung [Second Enactment of Amendments to the Energy Efficiency Ordinance], 18 November 2013, BGBl. I S. 3951. 74 City of Heidelberg, Concept for the Master Plan 100% Climate Protection for the City of Heidelberg (City of Heidelberg, April 2014), available at: http://bit.ly/2aiZmcz. 75 Indonesia, INDC, 24 September 2015, available at: http://bit.ly/1VbRk8I. 76 S. Butt et al., Climate Change and Forest Governance: Lessons from Indonesia (London & New York, Routledge: 2015), 111–12 (describing the mismatch between Indonesia’s 1,000 or more regional law-makers and the national government’s staff responsible for conducting the consistency review process prescribed by the 2004 Regional Government Law and 2004 Autonomy Law). 77 Ibid., at 115–17 (discussing Indonesian Supreme Court decisions 03 G/HUM/2002 and 24 P/HUM/2002). 78 Massachusetts v EPA, 549 U.S. 497 (2007). 79 West Virginia v EPA, D.C. Cir. Case No. 15–1363 (en banc), _stayed_, Order in pending case, West Virginia v. EPA, No. 15A773 (U.S. Feb. 9, 2016). 80 For a complete list, see Sabin Center for Climate Change Law, ‘Climate Change Litigation in the U.S.’, available at: http://bit.ly/2a5gHUG.

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climate change and energy transition policies 543 governments’ efforts to implement climate change policies within their particular jurisdictions cannot substitute for the adoption of policies at the national level: Heidelberg can do its part and provide a model to other cities, but it cannot eliminate demand for coal-fired electricity generation in Germany by devising just one highly efficient district.

25.2.2.2 Branches: Executive and Legislative Roles The distinction between executive and legislative action is less important in parliamentary systems because in those systems the executive’s policies reflect the parliament’s composition and will. The distinction still matters, even in a parliamentary system: legislated decisions reflect a greater degree of consensus and political investment than policies or implementing regulations announced by the executive, and more often outlive the parliamentary executive that proposed them. As an example of the changeability of executive policies, and of such changes’ subordinate status vis-à-vis legislation, consider the recent disbanding of the United Kingdom’s Department of Energy and Climate Change, which garnered quick reactions but did not signify material departure from the legal obligations imposed by the Climate Change Act of 2008.81 In presidential systems, where the executive and legislative branches can be at odds politically, codifying policy in a statute or a binding regulation matters a great deal. The Obama administration’s effort to impose GHG emissions restrictions on the transportation, electricity, and oil and gas sectors is the most salient example of this distinction mattering to climate change policy. There is no dispute that the President of the United States has the authority to direct federal agencies through executive orders,82 for instance by requiring that procurement decisions reflect consideration for climate impacts.83 However, as noted in section 25.2.1.2, regulations restricting GHG emissions from US sources have prompted litigation and accusations from members of Congress that the executive branch is exceeding its remit. Specifically, the argument goes that because Congress did not write the Clean Air Act to apply to GHG emissions, regulations implementing the Clean Air Act cannot be applied to GHG emissions.

25.2.2.3 Branches: Courts and Litigation Litigation over climate change policies has arisen in no fewer than twenty countries.84 That litigation can be divided into roughly three categories: one-off cases aiming to spur government 81 P. Rincon, ‘Government Axes Climate Department’ BBC, 14 July 2016, available at: http://bbc. in/29Vwc3o. 82 [U.S.] Exec. Order No. 13,693, Federal Leadership on Climate Change and Environmental Sustainability, 80 Fed. Reg. 15871 (19 March 2015); 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); Exec. Order 13677, Climate-Resilient International Development, 79 Fed. Reg. 58229 (26 September 2014); Exec. Order 13653, Preparing the United States for the Impacts of Climate Change, 78 Fed. Reg. 66817 (6 November 2013); Exec. Order 13514, Federal Leadership in Environmental, Energy, and Economic Performance, 74 Fed. Reg. 52117 (8 October 2009). 83 [U.S.] Federal Acquisition Regulation: Public Disclosure of Greenhouse Gas Emissions and Reduction Goals-Representation, 81 Fed. Reg. 33192 (25 May 2016). 84 Sabin Center for Climate Change Law, ‘Non-US Climate Litigation Chart’, available at: http://bit. ly/2cdHtOk. The Sabin Center has documented cases in the following jurisdictions: Australia, Belgium, Canada, Czech Republic, the European Union, France, Germany, Greece, Ireland, the Netherlands, New Zealand, Nigeria, Pakistan, Philippines, Spain, Ukraine, the United Kingdom, and the United States.

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544 justin gundlach and michael b. gerrard climate change mitigation efforts, lower-stakes cases dealing with a particular application of policies affecting land use or GHG emissions, and litigation in the United States. Solitary cases in Belgium,85 Pakistan,86 the Netherlands,87 and New Zealand88 have sought to push those countries’ governments to abide by existing or abandoned climate change mitigation commitments. Nearly 200 cases brought in courts in Australia, the EU, New Zealand, Spain, and the United Kingdom have focused on smaller-scale issues arising from climate policy-related land use, renewable energy credits, or emissions restrictions rather than on shaping basic policy decisions.89 The United States, an unmistakable outlier, has been home to a geyser of over 500 cases disputing climate change policies, sometimes aimed at particular instances of those policies’ implementation, other times aimed at their basic legality.90

25.2.3 Principal Legal Techniques The foregoing sections describe key elements of the legal and institutional scaffolding that supports (to a greater or lesser degree) particular climate change policies. This section turns from the scaffolding to the policies themselves: it describes mechanisms that governments use in their efforts to connect climate change mitigation and adaptation goals to outcomes. As with the foregoing sections, the descriptions below include general summaries and specific examples.

25.2.3.1 Quantitative Targets The world is awash in quantitative climate change mitigation targets, though less so in quantitative targets for adaptation efforts.91 Actors at all levels of government—international, national, regional, and local—and in the for-profit and non-profit segments of the private sector have identified targets for emissions reductions, energy efficiency improvements, renewable electricity generation, reforestation, and other climate change policy goals. This subsection offers a brief survey of how climate change policies identify, employ, and enforce quantitative targets. It also notes challenges arising in relation to these functions. Quantitative climate change mitigation targets often point to the Intergovernmental Panel on Climate Change (IPCC)’s analysis of relationships between the global warming 85 Petition, VZW Klimaatzaak v Kingdom of Belgium, Tribunal of First Instance, Brussels, filed 4 December 2014. 86 Leghari v Federation of Pakistan (2015) W.P. No. 25501/2015, Lahore High Court. 87 RB-Den Haag [Hague District Court] 21 juni 2015, ECLI:NL:RBDHA:2015:7196 (Stichting Urgenda/ Nederlanden) [Urgenda Foundation v Netherlands]. 88 Statement of Claim, Thomson v Minister for Climate Change Issues, HCNZ, CIV-2015-__, 10 November 2015. 89 See M. B. Gerrard and M. Wilensky, ‘The Role of the National Courts in GHG Emissions Reductions’ in M. Faure (ed.), Climate Change Law (Cheltenham; Northhampton M.A.: Edward Elgar, 2016), 359–71, at 366–8. 90 Ibid., at 360; see also Sabin Center for Climate Change Law, ‘US Climate Change Litigation’, available at: http://bit.ly/2bKrrNg. 91 See J. Dupuisa and R. Biesbroek, ‘Comparing Apples and Oranges: The Dependent Variable Problem in Comparing and Evaluating Climate Change Adaptation Policies’ (2013) 23 Global Environmental Change 1476, at 1476–87 (describing measurement problems arising from conceptual indistinctness and heterogeneity among adaptation efforts).

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climate change and energy transition policies 545 potential (GWP) of particular GHGs, those GHGs’ chemical lifespans and concentrations in the Earth’s atmosphere, average global temperature, and the stability of the climate system. In particular, many quantitative targets take as their lodestar the IPCC’s conclusion that an increase of 2ºC in average global temperatures would destabilize the climate system,92 and some derive an emissions ‘budget’ for themselves based on that conclusion.93 The UNFCCC used the 1995 version of this scientifically derived budget as the basis for the 1997 Kyoto Protocol,94 which parcelled out national budget constraints to UNFCCC members in the form of nominally mandatory caps.95 Some national governments ratified the protocol and set targets consistent with those caps. The UNFCCC’s 2011 Durban Platform anticipated the end of Kyoto’s top-down approach and replaced it with bottom-up voluntary commitments96—the Intended Nationally Determined Contributions (INDCs) that informed the 2015 Paris Agreement. The quantitative emissions reduction targets in INDCs take diverse forms, including percentage reductions from a baseline year,97 percentage reductions in emissions intensity,98 and timeframes within which emissions will peak.99 National governments set a variety of quantitative targets in their pursuit of climate change mitigation and adaptation policy goals. The emissions targets in INDCs and NDCs have already been mentioned. Others on the mitigation side of the ledger include sector-specific emissions reductions,100 gigawatts of available renewables capacity,101 phase-out dates for high-GWP hydrofluorocarbons used as refrigerants,102 reductions in rates of deforestation,103 and others. Adaptation is less amenable to quantitative targets,104 but governments have 92 Intergovernmental Panel on Climate Change, Fifth Assessment Report of the Intergovernmental Panel on Climate Change, Synthesis Report: Summary for Policymakers (Cambridge: Cambridge University Press, 2014), 9, fig. SPM.5. Although it is generally recognized that an increase of more than 1.5ºC would pose an existential threat to low-lying and small island nations, most international and national policies build on the 2ºC threshold. See UNFCCC, Decision 1/CP.21, para. 21, available at: http://bit.ly/29SisZg (inviting ‘IPCC to draft Special Report by 2018 on the impacts of global warming of 1.5°C above preindustrial levels and related global greenhouse gas emission pathways’). 93 See e.g. Under2 °, ‘Subnational governments are partnering to advance a Memorandum of Understanding (MOU) on Subnational Global Climate Leadership’, available at: http://bit.ly/1iaHdz9 (listing 135 jurisdictions that have signed or endorsed MOUs and linking to MOU text stating commitment to work to prevent a rise in global average temperatures or 2°C). 94 See Intergovernmental Panel on Climate Change, Climate Change 1995: A Report of the Intergovernmental Panel on Climate Change, Second Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge: Cambridge University Press, 1996). 95 Kyoto Protocol to the UNFCCC, 11 December 1997, 37 I.L.M. 22 (1998), available at: http://bit. ly/1yD5y3t. 96 Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action, Dec. I/CP.17, U.N. Doc. FCCC/CP/201 1/9/Add.l, at 2 (15 March 2012). 97 See e.g. US INDC, 31 March 2015, at 1–2, EU INDC, 6 March 2015, at 1–2. 98 See e.g. India INDC, 1 October 2015, at 8. 99 See e.g. China INDC, 30 June 2015, at 5. 100 See e.g. Japan INDC, 17 July 2015, pt. 3 (listing targets and policies by sector). 101 See e.g. India INDC, at 9. 102 See e.g. [UK] Department for Environment, Food & Rural Affairs and Environment Agency, Guidance: HFC phase down in the EU: how it works and exemptions, 31 December 2014, available at: http://bit. ly/2anYTYj, European Commission, EU legislation to control F-gases, available at: http://bit.ly/2aeewBJ (updated 17 August 2016); [US] EPA, Phaseout of Ozone-Depleting Substances, available at: http://bit. ly/2a6dx8e (updated 12 January 2016). 103 See e.g. Mexico INDC, 30 March 2015, at 3. 104 See European Commission, Adapting Infrastructure to Climate Change, 16 April 2013, available at: http://bit.ly/1BJp4uv (discussing various approaches to adaptation but not setting targets).

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546 justin gundlach and michael b. gerrard nonetheless found ways to quantify indicators of adaptation and have articulated adaptation policy goals in quantitative terms.105 Quantitative targets also abound at the sub-national level, both in the policies of provinces or states as well as cities. In some instances, these targets reflect the breakdown of targets set nationally, but in others they reflect the efforts of a sub-national government to exceed its proportional responsibility pursuant to a national mitigation or adaptation goal. The long list of categories for which sub-national governments have set quantitative targets includes the standard menu of emissions reductions, but often articulated in greater detail— for instance, California has not only set state-wide targets for reducing GHG emissions and petroleum use by 2030 and 2050, but its updated Climate Change Scoping Plan sets targets for particular measures to be taken in each of six economic sectors, including agriculture and solid waste management.106 California cities and counties have translated those targets into climate action plans, which themselves contain lists of detailed quantitative targets.107 Notably, it is not just national governments but also international non-governmental organizations (NGOs) that facilitate the development and monitoring of compliance with quantitative emissions targets by large cities.108 Non-governmental actors have also integrated quantitative targets into their climate change policies. Universities like Cornell and the Free University of Berlin have used targets to reduce emissions from their energy and waste management systems,109 and corporations like Wal-Mart and Microsoft now impute a carbon price to internal cost-accounting to inform and help coordinate emissions-reduction and energy efficiency efforts.110 Several challenges confront efforts to identify and abide by quantitative climate change policy targets. Perhaps the most basic challenge for GHG accounting is deriving useful

105 See e.g. [U.S.] Department of Homeland Security, Mitigation Framework Leadership Group (MitFLG), ‘Draft Concept Paper: Draft Interagency Concept for Community Resilience Indicators and National-Level Measures’ (Washington, D.C.: Department of Homeland Security, 2016), 17–21, available at: http://bit.ly/28PGvr8 (noting quantitative measures employed by federal and state agencies). 106 California Air Resources Board, First Update to the Climate Change Scoping Plan (May 2014), 66–9 (describing components of waste sector’s GHG inventory and listing emissions reduction measures); see also Cal. Code. Regs. tit. 17 §§ 95460–95476 (2009), available at: http://bit.ly/2a9mcEg (addressing methane emissions from municipal solid waste landfills). 107 See e.g. City of San Diego, Climate Action Plan (City of San Diego, December 2015), available at: http://bit.ly/2achKFc; Yolo County, Yolo County Climate Action Plan (Yolo County Board of Supervisors, March 2011), available at: http://bit.ly/29VjK5O. 108 See generally C40 Cities & Arup, Climate Action in Megacities 3.0 (London: C40 Cities & Arup, Dec. 2015) (describing coordinated efforts in dozens of cities). 109 See Cornell University, ‘Climate Action Plan 2013 Update and Roadmap for 2014–15’ (Ithaca, New York: Cornell University, 2013), available at: http://bit.ly/2aFXdXI; Berlin & Freie Universität Berlin, Klimaschutzvereinbarung zur gemeinsamen Umsetzung der energie- und klimaschutzpolitischen Ziele des Landes Berlin und der Freien Universität Berlin [Climate Protection Agreement regarding collaborative implementation of energy and climate policy goals of the Berlin Region and the Free University of Berlin] 2011–15 (Berlin & Freie Universität Berlin, May 2011), available at: http:// bit.ly/2aohkvM. 110 CDP, Putting a Price on Risk: Carbon Pricing in the Corporate World (New York: CDP, September 2015), available at: http://bit.ly/2bTFafS; see also Keidanren [Japan Federation of Economic Organizations], 経団連低炭素社会実行計画 [Keidanren Low Carbon Society Action Plan] (Tokyo: Keidanren, 2014), available at: http://bit.ly/2c1vscu (describing Voluntary Action Plan 2020).

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climate change and energy transition policies 547 emissions reduction targets from climate models, which are rife with uncertainties.111 Further challenges arise from the need to relate an emissions budget to economic circumstances and behaviours—that is, to estimate the present cost to the economy of emitting a unit of GHGs, termed the Social Cost of Carbon.112 One especially thorny valence of this accompanies efforts to assign values to the climate-related impacts of land use, land use changes, and forestry (LULUCF), discussed in section 25.2.2.6.113 Layered on top of these basic scientific and analytic challenges are issues of allocation: given economic circumstances, what targets are feasible? Necessary? Fair? Regarding adaptation targets, a sizeable challenge arises from calls to specify robust quantitative indicators in a way that will improve resource allocation.

25.2.3.2 Pricing Emissions: Taxes and Cap-and-Trade Schemes The types of institutions that have assigned a price to GHG emissions include the EU, almost forty national governments, and more than twenty sub-national governments,114 hundreds of corporations115 and a growing number of universities.116 Some governments have imposed carbon taxes, others have imposed emissions trading schemes (ETSs) that cap aggregate emissions and require emitters to purchase allowances from designated low- or non-emitting entities, such as renewable electricity generators. These carbon taxes and ETSs vary in the scope of their coverage, both with respect to types of emissions (Tokyo’s ETS covers CO2 only,117 the EU’s covers six GHGs118) and facilities (the Regional Greenhouse Gas Initiative of the northeastern United States covers fossil-fueled power plants with a generating capacity of at least 25MW,119 British Columbia’s tax covers all GHG emissions from fossil fuels imported 111 See R. S. Pindyck, The Use and Misuse of Models for Climate Policy (Cambridge M.A.: National Bureau of Economic Research, April 2015) (cautioning against presenting numeric thresholds as supported per se by climate models); G. Schmidt, ‘Agree to Disagree: Climate Models Produce Projections, Not Probabilities’ Bulletin of the Atomic Scientists, 26 November 2007, available at: http:// bit.ly/2bnX9yd. 112 [U.S.] EPA, Fact Sheet: Social Cost of Carbon (Washington, D.C.: EPA, December 2015), available at: http://bit.ly/2a9QhmW; see also UK Department for Trade and Industry, Our Energy Future— Creating a Low Carbon Economy (London: Department for Trade and Industry, 2003) (concluding that the United Kingdom should reduce CO2 emissions by 60 per cent from a 1990 baseline by 2050 based on SCC calculation). 113 See generally, UNFCCC, Reporting of the LULUCF Sector by Parties included in Annex I to the Convention, available at: http://bit.ly/2a1yPz0. 114 See World Bank & Ecofys, Carbon Pricing Watch: An Advance Brief from the State and Trends of Carbon Pricing 2016 report, to be released late 2016 (Washington D.C.: International Bank for Reconstruction and Development/World Bank, 2016), available at: http://bit.ly/2asb6t6 (surveying carbon taxes and ETSs). 115 CDP, Putting a Price on Risk. 116 Presidential Carbon Charge Task Force, Report to the President and Provost of Yale University: Findings and Recommendations on a Carbon-Charge Program at Yale (New Haven, Connecticut: Yale University, April 2015), available at: http://bit.ly/2bUFBeI; A. Hall et al., Internal Carbon Accounting at a Small Liberal Arts College (Arlington, New York: Vassar College, September 2015). 117 Tokyo Metropolitan Government, Tokyo Cap-and-Trade Program for Large Facilities (Tokyo Metropolitan Government, March 2012), 3(1) (‘Covered Gases’), available at: http://bit.ly/2b8dl9h. 118 [EU] Council Directive 2003/87/EC, O.J. (L 275), 25.10.2003, 32 (establishing scheme for GHG emission allowance trading within Community and amending Council Directive 96/61/EC), available at: http://bit.ly/2bHNJg5. 119 [Northeast US] Regional Greenhouse Gas Initiative, Program Overview, available at: http://bit. ly/2bamgRK.

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548 justin gundlach and michael b. gerrard or combusted in the province120). They also vary in the rates they impose on emitters: carbon taxes in Mexico and Poland impose rates of less than US$1 per ton of CO2; the ETS in Tokyo, US$38; and the carbon tax in Sweden, US$130.121 At the time of writing, existing carbon pricing mechanisms cover roughly 13 per cent of global emissions.122

25.2.3.3 Command and Control Often called ‘traditional’ air pollution regulation, command and control approaches do not employ price or market mechanisms to encourage emissions reductions, but instead require polluters to adhere to particular operational or technological requirements. Most GHG emissions regulation employs a price-based mechanism instead of command and control measures. Some countries, like Austria, use command and control approaches to regulate high-GWP pollutants like hydrofluorocarbons (HFCs),123 but others, like New Zealand, employ a pricing mechanism for these as well as for other GHGs.124 The United States is the leading example of a jurisdiction that applies traditional command and control regulation to GHGs generally. There, regulations based on the Clean Air Act of 1970, as amended in 1977 and 1990, have set limits on emissions from vehicles by modifying corporate average fuel economy standards and from stationary sources by specifying performance standards.125 Notably, however, EPA has signalled to state governments that stationary sources may achieve those performance standards via a form of ETS.126

25.2.3.4 Subsidies and Tax Incentives A number of climate change policies use subsidies and tax incentives to encourage emissions reductions or adaptation measures. These incentives are especially prevalent in the energy sector (discussed in more detail in section 25.3), but also feature in climate change policies focused on LULUCF. For instance, Peru’s National Forestry and Climate Change Strategy provides incentives to small farmers who refrain from clearing forest land adjacent to their

120 British Columbia, Carbon Tax Act, 2008, pt. 3; Climate Action Secretariat, Consultation Backgrounder—Carbon Pricing (British Columbia Ministry of Environment, 2012), 2, available at: http:// bit.ly/2bvpnst. 121 World Business Council for Sustainable Development, Emerging Practices in Internal Carbon Pricing: A Practical Guide (Geneva: World Business Council for Sustainable Development, 2015), 5. 122 Ibid. 123 [Austria] Fluorierte-Treibhausgase-Gesetz [Fluorinated GHG Law] 2009 Bundesgesetzblatt No. 103/2009 (requiring registration of actors in supply chain and imposing fines for non-compliance); Verordnung des Bundesministers für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft über Verbote und Beschränkungen teilfluorierter und vollfluorierter Kohlenwasserstoffe sowie von Schwefelhexafluorid [Regulation of the federal minister for land management, forestry, environment, and water regarding prohibitions and restrictions on partly and fully fluorinated volatile organic compounds and sulfur hexafluoride], BGBl. II Nr. 447/2002 (10 December 2002), as amended in 2007, BGBl. II Nr. 139/2007, § 4 Abs. 8 (21 June 2007). 124 New Zealand Ministry for the Environment, Synthetic greenhouse gases in the ETS, available at: http://bit.ly/2bagLC4 (reviewed 18 May 2016). 125 [US] 75 Fed. Reg. 25324 (CAFE standards); 75 Fed. Reg. 31514 (PSD programme requirements); 80 Fed. Reg. 205 (Clean Power Plan). 126 [U.S.] 80 Fed. Reg. at 64887–894.

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climate change and energy transition policies 549 property,127 and its Business and Biodiversity Initiative supports ecosystem services by coordinating financing from private firms for maintenance of designated areas by forestland inhabitants.128 While subsidies and incentives for fossil fuel extraction and use are not a feature of climate change policies per se, they are nonetheless directly relevant because their encouragement of fossil fuel consumption (and thereby the emission of GHGs) counteracts climate change mitigation efforts and increases the extent to which climate change adaptation will be necessary. This direct relevance,129 and the adverse impacts of fossil fuel consumption on public health, have inspired the IMF, the G7, and the G20 to declare that fossil fuel subsidies should be reduced from their current level of roughly $500 million annually.130

25.2.3.5 Information Some climate change policies facilitate or require disclosure of information relevant to climate change impacts. Mitigation-oriented policies of this sort include emissions inventories, and energy efficiency labelling requirements for vehicles, equipment, and buildings. Energyefficiency labelling is discussed further in section 25.3.2.1. Information and disclosure requirements in adaptation-oriented policies tend to focus on locational hazards such as flood zones.131 These policies are often contentious because of their large potential effects on real estate prices and local government planning. The Welsh village of Fairbourne offers a striking example of how potent information about sea level rise can be: noting that rising seas would visit severe impacts on the village and eventually require managed retreat, a 2012 shoreline management plan recommended that the village be incrementally ‘decommissioned’, which in turn led to a sharp drop in the value of local property and businesses.132 In a similar vein, recent coastal storms and updates to the maps that designate flood risk zones have revealed the extent to which the maps issued under the National Flood Insurance Policy have obscured information about flood hazards that are generally increasing as the climate changes.133 127 Peru’s National Forestry and Climate Change Strategy, Decreto No. 007-2016-MINAM (21 July 2016), available at: http://bit.ly/2aeNWHn. 128 Peruvian Ministry of the Environment, ‘Peruvian Business and Biodiversity Initiative’, available at: http://bit.ly/2a4RcSL. 129 International Energy Agency, World Energy Outlook: Fossil Fuel Subsidy Database, available at: http://bit.ly/1Muu2ll. 130 For statements of the G7, G20, and the United States regarding subsidy reduction commitments, see G7 Ise-Shima Leaders’ Declaration, 26–7 May 2016, available at: http://bit.ly/1Rvj7J7; Progress Report to G20 on Fossil Fuel Subsidy Reform (2014), available at: http://bit.ly/1NEIFGu/. For estimates of the current scale of subsidies, see International Energy Agency, World Energy Outlook: Fossil Fuel Subsidy Database, available at: http://bit.ly/1Muu2ll; David Coady et al., ‘How Large Are Global Energy Subsidies?’, IMF Working Paper WP/15/105 (May 2015). 131 R. L. Wilby and R. Keenan, ‘Adapting to Flood Risk Under Climate Change’ (2015, 36 Progress in Physical Geography 348–78, at 352–7 (collecting examples of government-led efforts to collect and provide information about flood risk in South Asia, Germany, the United Kindom, and the United States). 132 West of Wales Shoreline Management Plan 2: Cardigan Bay and Ynys Enlli to the Great Orme Coastal Groups (June 2012); see also Department for Environment, Food, and Rural Affairs, Shoreline management plan guidance Volume 1: Aims and requirements (March 2006), available at: http://bit.ly/2au6gfa. For a news article summarizing the confrontation, see ‘Welsh village to sue government over “alarmist” rising sea level claim’ The Telegraph, 11 February 2016, available at: http://bit.ly/2a4agBH. 133 S. Childress and K. Worth, ‘How Federal Flood Maps Ignore the Risks Of Climate Change’ Frontline, 26 May 2016, available at: http://to.pbs.org/1TE9NdF.

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550 justin gundlach and michael b. gerrard Corporate financial disclosure requirements regarding risks related to climate change are a nascent but growing application of information for the purposes of climate change policy. France,134 the EU,135 and the United States136 have all (in descending order of stringency) imposed such requirements on publicly traded companies subject to their respective jurisdictions. These requirements are diverse and the corporate disclosures they prompt vary widely—even within the same jurisdiction.137 The G20’s Financial Stability Board’s Task Force on Climate-related Financial Disclosures published recommendations regarding the structure and application of requirements like these in December 2016.138

25.2.3.6 For Non-fossil Fuel Sources of Greenhouse Gases Substantial volumes of GHG emissions come from sources unrelated to fossil fuel extraction or consumption, chief among them LULUCF and waste—including both solid waste and wastewater. Unlike fossil fuel-related emissions, which can be avoided through relatively straightforward improvements in efficiency or substituting renewables, reducing emissions from LULUCF and waste often requires complex emissions accounting and nuanced interventions into policy areas that are already knotty. In some jurisdictions, the technical and political challenges involved in such interventions prevent governments from adopting strong measures to control GHG emissions.139 In some countries—Brazil and Indonesia are notable examples—emissions from these sources outweigh those from fossil fuels.140 25.2.3.6 .1 L and Use, L and Use Change, and Forestry (LULUCF) All manner of land uses have implications for climate change, whether because they release emissions or create, maintain, or eliminate carbon sinks.141 In spite of agriculture’s 134 [France] 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 page 25282, text no. 80 (implementing Art. 173 Energy Transition for Green Growth Law). 135 [EU] 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). 136 [US] Securities and Exchange Commission, Commission Guidance Regarding Disclosure Related to Climate Change, 75 Fed. Reg. 6290, 6294 (9 February 2010). 137 Compare Xcel Energy Inc., Form 10-K (31 December 2014), 39–40 (describing direct environmental and indirect regulatory risks arising from climate change), with Peabody Energy Corporation 10-K (31 December 2016), 18–19, 33–4 (describing risks from regulation responsive to climate change and acknowledging only that ‘Numerous reports, such as the Fourth (and, more recently, the Fifth) Assessment Report of the [IPCC], have also engendered concern about the impacts of human activity, especially fossil fuel combustion, on global climate issues.’). 138 Financial Stability Board, Task Force on Climate-related Financial Disclosures, Phase 1 Report, 31 March 2016, available at: http://bit.ly/1oq67NV. 139 See e.g. [New Zealand] Ministry for the Environment, The New Zealand Emissions Trading Scheme Evaluation 2016 (Wellington: Ministry for the Environment, 2016), 9, 34 (noting that ETS excludes agriculture); Ministry for the Environment, New Zealand GHG Emissions Inventory 1990–2014 (Wellington: Ministry for the Environment, May 2016), viii (reporting that agriculture accounts for 49 per cent of New Zealand’s annual GHG emissions). 140 [UNFCCC] Subsidiary Body for Implementation, Sixth compilation and synthesis of initial national communications from Parties not included in Annex I to the Convention: Inventories of anthropogenic emissions by sources and removals by sinks of greenhouse gases, FCCC/SBI/2005/18/Add.2, 25 October 2005, 7–8 (LULUCF portion of total GHG emissions reported in 2005 for Brazil is 55.4 per cent and for Indonesia 43.7 per cent). 141 See UNFCCC, Decision 11/CP.7, FCCC/CP/2001/13/Add.1 (defining LULUCF).

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climate change and energy transition policies 551 responsibility for roughly one-quarter of GHG emissions worldwide,142 climate change mitigation policies that focus on lands used for agriculture are generally ‘soft’, involving reporting requirements, guidelines, and technical assistance for low-emissions techniques rather than emissions reduction requirements.143 Similarly, adaptation policies for agriculture generally focus on developing and publicizing research findings about risks and responses rather than imposing restrictions or requiring specific actions.144 Climate change policies addressing forestry tend to include not just encouragements but also requirements,145 and many are designed to be compatible with the REDD+ programme (the acronym derives from ‘Reducing Emissions from Deforestation and forest Degradation’),146 which integrates forest preservation into UNFCCC-led climate change mitigation efforts by recognizing and quantifying the contribution of five qualifying activities in developing countries.147 Brazil, Indonesia, and Vietnam each approach agricultural and forestry-related aspects of climate change policy in a more or less integrated way. Brazil’s National Policy on FarmingLivestock-Forest Integration includes ‘soft’ measures like education and technical assistance, as well as ‘harder’ measures that prohibit clearing or road-building in forests.148 Indonesia’s 2011 moratorium on regional forestry licensing seeks to address logging as well as conversion of native forests to plantations where fast-growing trees are harvested for palm oil or pulp useful in paper production.149 Similarly, Vietnam’s REDD+ National Action Program sets related goals for afforestation, forest preservation, and agricultural practices and assigns

142 P. Smith, M. Bustamante et al., ‘Agriculture, Forestry and Other Land Use (AFOLU)’ in Climate Change 2014: Mitigation of Climate Change, Contribution of Working Group III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge and New York: Cambridge University Press, 2014), 811–922, at 816. 143 See e.g. [New Zealand] Climate Change (Agriculture Sector) Regulations 2010, SR 2010/335 regs. 4–14 (requiring detailed recording and reporting of GHG emissions attributable to agricultural assets and activities); Teagasc and Bord Bia (Irish Food Board), The Dairy Carbon Navigator: Improving Carbon Efficiency on Irish Dairy Farms (Teagasc and Bord Bia, 2013), available at: http://bit.ly/2abKASh (suggesting techniques to reduce carbon intensity and tools for estimating GHG emissions for particular activities). 144 See e.g. C. L. Walthall et al., USDA Technical Bulletin 1935: Climate Change and Agriculture in the United States: Effects and Adaptation (Washington D.C.: U.S. Department of Agriculture, 2012), available at: http://bit.ly/1ix5b2e. 145 See e.g. [Chile] 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]. 146 [UNFCCC] Decision 1/CP.18 (deciding to undertake REDD+ work programme); Art. V Paris Agreement (referring to forestry as a means of climate change mitigation). The UNFCCC now maintains a thorough catalogue of national policies and UN documents on the REDD+ Web Platform, available at: http://redd.unfccc.int/. 147 [UNFCCC] Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention, 1/CP16, FCCC/CP/2010/7/Add.1, para. 70 (2010) (‘Recognizing that the following activities ‘contribute to mitigation actions in the forest sector: a. Reducing emissions from deforestation; b. Reducing emissions from forest degradation; c. Conservation of forest carbon stocks; d. Sustainable management of forests; e. Enhancement of forest carbon stocks;’). 148 [Brazil] Lei No. 12.805, de 29 de Abril de 2013, Diário Oficial da União [D.O.U.], Seção 1, 30.04.2013, Página 1 [National Policy on Farming-Livestock-Forest Integration]. 149 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), available at: http://bit.ly/2c1Y1qR.

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552 justin gundlach and michael b. gerrard the Ministry of Agriculture and Rural Development responsibility for managing REDD+ project funds in Vietnam.150 25.2.3.6 .2 Methane from Solid Waste and Wastewater Waste streams are an important source of methane.151 Regulations intended to reduce methane emissions from landfills and from wastewater processing employ sticks—for instance, restrictions on how much biodegradable waste may be sent to landfills, or on how much methane a landfill may emit—and carrots—such as subsidies for building and operating facilities that capture methane and generate energy from its combustion. EU and US policies directed at reducing methane from solid waste disposal both employ sticks and carrots. EU Landfill Directives, issued in 1999 and 2008, require Member States to reduce the volume of biodegradable waste sent to landfills to 75 per cent of a 1995 baseline by 2010, 50 per cent by 2013, and 35 per cent by 2016 (for some countries, e.g. Austria, Denmark, and Germany) or 2020 (for others, e.g. Bulgaria, Hungary, and Latvia).152 Regulations issued by the US EPA in August 2016 add climate change to the reasons for regulating emissions from landfills and tighten emissions limits consistent with the recognition that methane is not just a volatile organic compound that pollutes the ambient air but also a potent GHG.153 The US EPA’s approach (regulating emissions instead of waste volumes) reflects that its regulations are based on authority provided by the Clean Air Act, rather than legislation tailored to the purpose of reducing GHGs from the solid waste stream. As for carrots, policies in both the EU and United States encourage the capture of ‘biogas’ (Europe) or ‘landfill gas’ (United States) for use as a primary energy source. The policies that apply to wastewater in both jurisdictions closely resemble those that apply to solid waste: restrictions on emissions coupled with subsidies for the development and uptake of technologies that capture methane for use or flaring. Notably, municipalities in both jurisdictions direct some of their food waste to the same digesters as their wastewater.154 Policies focused on methane emitted from waste streams in China and Thailand generally employ carrots rather than sticks. In both countries, feed-in-tariffs compensate biogas from small- and large-scale waste digester systems, which glean methane useful for electricity generation from human, animal, and food waste.155 150 [Vietnam] Decision No. 7991QD-TTg (27 June 2012), approving the national action programme on ‘reducing green-house gas emissions through efforts to mitigate deforestation and forest degradation, sustainable management of forest resources, and conservation and enhancement of forest carbon stocks’ during 2011–20, Issue nos. 08-10/June 2012, Cong Bao nos. 417-418/6 July 2012, available at: http://bit.ly/2ahA3sw. 151 IPCC AR5 § 5.3.5.5 (Waste) at 385; [US] EPA, Global Mitigation of Non-CO2 Greenhouse Gases: Wastewater, available at: http://bit.ly/2c4im1h (updated 9 August 2016). 152 [EU] Council Directive 1999/31/EC, O.J. (L 182), 16.7.1999, 1–19 (landfill of waste); Council Directive 2008/98/EC, O.J. (L 312), 22.11.2008, 3–30 (waste). 153 [US] EPA, Standards of Performance for Municipal Solid Waste Landfills, 81 Fed. Reg. 59331 (29 August 2016); Emission Guidelines and Compliance Times for Municipal Solid Waste Landfills, 81 Fed. Reg. 59275 (29 August 2016). 154 e.g. C. Schulze, ‘Municipal Waste Management in Berlin (Berlin Senate Department for Urban Development and the Environment, December 2013), 32, available at: http://bit.ly/2bVlLg2; R. Dahl, ‘A Second Life For Scraps: Making Biogas From Food Waste’ (2015) 123 Environmental Health Perspectives A180, at A180–A182, available at: http://bit.ly/2bpnPyh (discussing New York City plans for adding food waste to waste stream processed by Newtown Creek Wastewater Treatment Plant). 155 [China] Renewable Energy Law of the People’s Republic of China (promulgated by the Standing Comm. Nat’l Peoples Cong., 28 February 2005, effective 1 January 2006), St. Council Gaz. Issue 11, Serial

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climate change and energy transition policies 553 25.2.3.6.3 High-GWP Substances Fluorinated gases or F-gases can substitute for the atmospheric ozone-destroying chlorofluorocarbons (CFCs) and hydrochlorofluorocarbons (HCFCs) that were used in refrigerants until the Montreal Protocol of 1987 coordinated an incremental world-wide CFC phase-out.156 Unfortunately, F-gases have enormous radiative forcing properties: their GWP values range from 12,000 to almost 23,000 times that of CO2. This is an urgent cause for concern because of how quickly demand for refrigeration and air conditioning is growing, particularly in the developing world. International efforts to apply the Montreal Protocol to F-gases are discussed in section 25.4.2. The EU provides an example of regulatory efforts that have preceded and encouraged those international negotiations. The EU’s 2006 MAC Directive provides for the phase-out of F-gases from use in air conditioning units in new motor vehicles from 2011 to 2017.157 The EU’s more general F-Gases Regulation, first issued in 2006 and updated in 2015, creates a comprehensive regulatory regime for F-gases’ use, containment, recovery, and destruction, as well as restrictions on their sale and timelines for their exclusion from all markets in EU jurisdictions.158 Both of these have prompted implementing regulations at the national level.159 Japan provides another example of F-gas regulation: the 2013 Act on the Rational Use and Proper Management of Fluorocarbons schedules the incremental phase-out of F-gases across all sectors, sets GWP targets for substitutes, and requires manufacturers to draft plans for phase-out based on regulatory guidelines.160 India provides a contrasting example of a country that does not currently restrict

No. 1154, translated at: http://bit.ly/2bZUzjF, amended by Decision of the Standing Committee of the National People’s Congress on Amending the Law of the People’s Republic of China on Renewable Energy (promulgated by the Standing Comm. Nat’l People’s Cong., 26 December, 2009, effective 1 April 2010), 2009 China Law LEXIS 671; Germany Federal Ministry for Economic Affairs and Energy, Thailand: Renewable Energy Policy Update (Eschborn, Germany: Deutsche Gesellschaft fuer internationalie Zusammenarbeit GmbH, 2015), 3–4 (describing Thai feed-in-tariffs for small biogas facilities). 156 The four F-gases and their GWPs are: hydrofluorocarbons (HFCs), 12–14,800; perfluorocarbons (PFCs), 7,390–12,200; sulfur hexafluoride (SF6), 17,200; and nitrogen trifluoride (NF3), 22,800. IPCC, ‘Summary for Policymakers’, in O. Edenhofer et al. (eds.), Climate Change 2014: Mitigation of Climate Change. Contribution of Working Group III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (Cambridge and New York: Cambridge University Press, 2014); Art. 5 Montreal Protocol on Substances that Deplete the Ozone Layer, 16 September 1987, 15 U.N.T.S. 29. 157 [EU] Council Directive 2006/40/EC, O.J. (L 161/12), 12–18, 17.05.2006 (regulating emissions from air conditioning systems in motor vehicles); see also European Commission, EU Legislation to Control F-gases: 2014 F-gas Regulation, available at: http://bit.ly/2aeewBJ (listing Regulations and Implementing Regulations and Decision issued by the EU Parliament and European Commission). 158 (EU) 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), 17.05.2006, 1–11 (regulation of certain fluorinated greenhouse gases). 159 See e.g. [Germany] Verordnung zum Schutz des Klimas vor Veränderungen durch den Eintrag bestimmter fluorierter Treibhausgase, die zuletzt durch Artikel 5 Absatz 6 des Gesetzes vom 20. Oktober 2015 geändert worden ist [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], BGBl. I S. 1739. 160 [Japan] Ministry of the Environment, Office of Fluorocarbons Control Policy, Act on Rational Use and Proper Management of Fluorocarbons (Tokyo: Government of Japan, March 2016), available at: http://bit.ly/2ckbDjf (describing HFCs law adopted in 2013).

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554 justin gundlach and michael b. gerrard the manufacture of F-gases,161 notwithstanding expectations that demand for HFCs will grow at an alarming rate as Indians purchase an increasing number of air conditioning units for their homes and cars in the coming years.

25.3 Energy Transition Regulation This section surveys regulatory approaches to accomplishing the transition from energy systems reliant on fossil fuels to systems that minimize or eliminate fossil fuel consumption, whether by developing substitutes, promoting conservation and efficiency, or capturing and sequestering or utilizing GHG emissions. It first describes a typology of those approaches in terms of their comprehensiveness and coherence, then turns to energy transition policies’ substantive components.

25.3.1 Scope and Structure of the Governing Law As with climate change, some governments approach energy transition policy through comprehensive legislation or regulation and others do so in a more piecemeal fashion. Unlike with climate change, comprehensive approaches that aim expressly at decarbonizing are less the norm than piecemeal approaches whose components serve the competing priorities of energy security, economic growth, and climate change mitigation. France’s Law on Energy Transition for Green Growth and Germany’s Energiewende are examples of the former; laws in the United States exemplify the latter. France’s Energy Transition Law is the result of a three-year National Debate on Energy Transition, which evaluated options for reducing fossil fuel consumption and energy use more generally in the electricity and transport sectors.162 Those options included varying degrees of reliance on nuclear and renewable power, and a range of ambitions for improvements to efficiency through, inter alia, building retrofits and behavior changes such as increased transit and reduced automotive transport. The resulting legislation incorporates a long list of components, including but not limited to: a carbon tax increase, a streamlined permitting process for renewable electricity generation facilities, energy efficiency (EE) standards for buildings, a plan for installing EV charging stations, and a host of subsidies to facilitate compliance efforts.163 Germany’s Energiewende seeks to achieve three goals: reduce GHG emissions by 80–95 per cent by 2050, reduce fossil fuel imports (especially from Russia and other former Soviet Republics), and phase out nuclear power. (The last of these was accelerated in the aftermath 161 See 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 (hearing claims related to Indian manufacturers’ sale of HCFC-22 and venting of HCF-23 and encouraging Ministry of Environment, Forest and Climate Change, other government agencies to take action). 162 [France] 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 page 14263, texte no. 1. 163 Ibid.

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climate change and energy transition policies 555 of the 2011 Fukushima disaster.164) This trinity of goals has been codified in 2000, 2007, and 2014 laws and amendments to various pieces of pre-existing legislation,165 as well as new legislation.166 As with the French law, the measures in Germany’s legislative ‘packages’ make significant changes in a coordinated fashion to a wide range of policy areas, including feedin-tariff rates for renewables, transmission line siting and construction, EE requirements for buildings and equipment, and incentives for the transportation sector. The variety of statutes and policy documents that inform energy policy in the United States reflects that country’s fragmentary and often conflicting approach to energy regulation in general and to the transition to renewable energy in particular. Even the Energy Policy Acts of 1992 and 2005 are not as comprehensive as the French and German legislation described above, and they contain provisions acknowledging climate change, promoting renewables, and promoting the production of fossil fuels.167 US energy policy can usefully be thought of as a patchwork comprised of forward-looking plans on the one hand and of various inherited statutes and structures on the other; for instance, the Federal Power Act of 1935, the Natural Gas Act of 1938, and the Atomic Energy Act of 1954 all continue to guide federal agency decision-making, though each has been amended at least twice by Congress and interpreted—in changing technological and economic contexts—by the Department of Energy or Federal Energy Regulatory Commission’s implementing regulations. At present, deep political disagreement over the validity of climate change as a reason to transition away from fossil fuels ensures that new legislation will not make this patchwork any less inchoate vis-à-vis an energy transition.

25.3.2 Substantive Provisions Substantive energy transition policy provisions vary from country to country, but generally address the following: (i) energy efficiency in buildings, equipment, and vehicles; (ii) the development of renewable energy, whether to supplant existing fossil-fueled sources or to 164 [Germany] Regierungserklaerung [Government Statement] of 17 März 2011 (formalizing announcement of 15 March—four days after the tsunami struck Fukushima—that eight of Germany’s older nuclear reactors would be shuttered); Atomausstiegsgesetz [law on the orderly termination of nuclear energy for commercial electricity generation], 22 April 2002, BGBL. I, S. 1351 (calling for phase out of German nuclear reactors by 2022). 165 [Germany] Erneuerbare-Energien-Gesetz (EEG) [Renewable Energy Sources Law], 21. Juli 2014, BGBL. I, S. 1066, S. 1218, Art. 4; Energiewirtschaftsgesetz (EnWG) [German Energy Act], 21. Juli 2014, BGBL. I S. 1066, Art. 6 (amending 2005 version); Anreizregulierungsverordnung (ARegV) [Incentive Regulation Ordinance], 21. Juli 2014, BGBL. I, S. 1066, Art. 9 (amending 2007 version); Stromnetzzugangs verordnung (StromNZV) [Electricity Grid Access Ordinance], 21. Juli 2014, BGBL. I, S. 1066, Art. 8 (amending 2005 version); Stromnetzentgeltverordnung (StromNEV) [Electricity Grid Charges Ordinance], 21. July 2014, BGBL. I S. 1066, art. 7 (amending 2005 version); Stromeinspeisungsgesetz [Electricity FeedIn-Tariff Law], 29. März 2000, BGBl. I 2000, S. 305 (superseding 1990 and 1998 versions). 166 See e.g. [Germany] Gesetz zur Bevorrechtigung der Verwendung elektrisch betriebener Fahrzeuge (Elektromobilitätsgesetz) [Law incentivizing use of electric vehicles (electro-mobility law)], 5. Juni 2015, BGBl. I S. 898 (creating subsidies valid until 2026, and providing for construction of new charging stations). 167 [US] Energy Policy Act of 1992, Pub. L. No. 102–486, 106 Stat. 2866 (24 October 1992), tit. VI (electric motor vehicles), tit. XII (renewable energy), tit. XIII (coal), tit. XX.A (oil and gas supply enhancement); Energy Policy Act of 2005, tit. II (renewable energy), tit. III (oil and gas), tit. IV (coal).

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556 justin gundlach and michael b. gerrard meet a growing demand for electricity; (iii) constraining (to widely varying degrees) the use of fossil fuels as a primary energy source; (iv) options for developing or maintaining nuclear reactors to generate electricity; and (v) developing—or redesigning—the electric grid to integrate a changing generation mix on the one hand and an increasingly sophisticated set of technologies for demand-side management of electricity use on the other. Before exploring examples of these policy provisions, it is useful to note how the Deep Decarbonization Pathways Project has characterized energy transition pathways in developed and developing countries. Transition in developed countries consistently builds on three ‘pillars’: 1) the decoupling of economic growth from greater energy- and emissions-intensity through improvements in end-use energy efficiency in buildings, equipment, and appliances, and vehicles; 2) the electrification of end-uses of energy—for instance, the replacement of internal combustion engines with EVs; and 3) the decarbonization of electricity and other energy sources.168 Transition in developing countries is less uniform and tends to reflect to a greater degree the country’s particular circumstances and resources. For instance, Brazil’s ready access to hydropower useable for generating electricity and to sugarcane useable for producing low-emissions ethanols169 makes for a very different pathway to decarbonization than Indonesia’s longstanding history as a producer of oil and gas.170

25.3.2.1 Energy Efficiency and Electrification Policies that encourage EE improvements generally impose some combination of performance and labelling requirements. They also often include procurement requirements for governments, consumer purchasing support through direct subsidies or tax incentives, and government-led or -sponsored R&D. Although EE improvement entails the same conceptual task regardless of context—achieve similar outputs or performance while reducing energy inputs—policies intended to improve EE tend to address separately the key categories of buildings, equipment and appliances, and vehicles. This subsection follows that categorization. Although the goal of electrification is in several respects distinct from improving EE, they are discussed together here because they overlap substantially both in terms of policies and outcomes. 25.3.2.1.1 Buildings Using less energy in a building generally means improving its insulation, replacing some or all of its HVAC (heating, ventilation, air conditioning) systems, water heating, and lighting 168 P. Criqui et al., Pathways to Deep Decarbonization in 2050 in France (Paris: Sustainable Development Solutions Network and Institute for Sustainable Development and International Relations, 2015), 50–2; K. Hillebrandt et al., Pathways to Deep Decarbonization in 2050 in Germany (Paris: Sustainable Development Solutions Network and Institute for Sustainable Development and International Relations, 2015), 72–6; M. Kainuma et al., Pathways to Deep Decarbonization in 2050 in Japan (Paris: Sustainable Development Solutions Network and Institute for Sustainable Development and International Relations, 2015), 4, 10, 14, 24–5. 169 E. L. La Rover et al., Pathways to Deep Decarbonization in 2050 in Brazil (Paris: Sustainable Development Solutions Network and Institute for Sustainable Development and International Relations, 2015), §§ 3.2 (biofuels), 3.3 (hydropower). 170 U. W. R. Siagian et al., Pathways to Deep Decarbonization in 2050 in Indonesia (Paris: Sustainable Development Solutions Network and Institute for Sustainable Development and International Relations, 2015), 21–2 (describing scenarios involving heavy investments in renewable electricity generation, renewables and CCS, or de-industrialization).

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climate change and energy transition policies 557 systems, and refining the alignment of its end users’ energy-consumption patterns with the delivery of energy to particular areas and systems. These efforts take different forms in industrial, commercial, and residential buildings, but policies that promote them consistently combine minimum performance standards and disclosure requirements. As policy-makers at the national level have come to recognize buildings’ sizeable contributions to aggregate energy demand and GHG emissions, national governments have imposed a greater number of requirements on the sub-national and local authorities responsible for drafting and updating building codes.171 In parallel to this shift, a growing number of policies require compliance not only with materials and design standards but also with performance requirements.172 In the EU, energy performance and disclosure requirements for buildings imposed at the national and sub-national levels must fit within parameters prescribed at the EU level.173 Those parameters root in the EU’s legislative 2009 Climate and Energy Package,174 and have since been articulated further in the 2010 update to the 2002 Energy Performance and Buildings Directive (EPBD)175 and the 2012 Energy Efficiency Directive (EED).176 The 2010 EPBD specifies the ‘Minimum Energy Performance’ required for new and modified buildings of various types. It also requires that all buildings receive an EE rating and must make those ratings available in the form of an ‘Energy Performance Certificate’ in all advertisements for rental or sale.177 The EED, which covers a broader array of subjects than just buildings, calls upon member states to include in their National Energy Efficiency Action Plans provisions for the retrofit of existing building stock generally and for the improvement of energy performance in existing government buildings in particular.178 Implementation of the EPBD and EED by Member

171 See e.g. American Recovery and Reinvestment Act of 2009, Pub. L. No. 111–5 § 410(a)(2), 123 Stat. 115, 146–8 (17 February 2009) (conditioning receipt of stimulus funds on formal assurance by state governors that their states would revise state building codes). California provides a notable example of a sub-national government that has long led rather than following its national government in developing ambitious EE policies for buildings. Warren-Alquist State Energy Resources Conservation and Development Act of 1974, AB 1575, codified at Cal. Pub. Res. Code §§ 25000–25990. For the 2016 update to California’s building EE requirements, see 2016 Building Energy Efficiency Standards for Residential and Nonresidential Buildings, available at: http://bit.ly/2bnrf3l, codified at Cal. Code Regs. tit. 24, pt. 6. 172 See e.g. Japan Energy Conservation Handbook 2013 (Tokyo: The Energy Conservation Center, 2013), 22–3 (describing requirements of Energy Conservation Law as amended, which requires annual reporting of energy use, 1 per cent annual reductions in energy intensity, use of Qualified Energy Managers, development of long-term energy efficiency investment plans, establishment of energy management manuals for major energy-consuming equipment). 173 But see T. Parejo-Navajas, ‘A Legal Approach to the Improvement of Energy Efficiency Measures for the Existing Building Stock in the United States Based on the European Experience’ (2016) 5 Seattle Journal of Environmental Law 341, at 385 (noting low compliance rates among some EU Member States). 174 See European Commission, ‘2020 Climate and Energy Package’, available at: http://bit.ly/1WffytV (last updated 22 July 2016). 175 [EU] Council Directive 2010/31, O.J. (L 153), 18.6.2010, 13–35 (regarding the energy performance of buildings (EPBD)); Council Directive 2002/91, O.J. (L 1), 4.1.2003, 65–71. 176 [EU] Council Directive 2012/27 [hereinafter 2012 EE Directive] (amending Council Directives 2009/125 and 2010/30 and repealing Directives 2004/8 and 2006/32). 177 Ibid; see also [EU] Commission Delegated Regulation 244/2012, O.J. (C. 115) 19.4.2012, 1–28 (supplemental regulation providing a cost-effectiveness analysis methodology for choosing EPBD-compatible options that are optimal for a particular jurisdiction). 178 [EU] Council Directive 2012/27/EU, O.J. (L 315), 14.11.2012, 1–56.

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558 justin gundlach and michael b. gerrard States has varied widely,179 with few conforming as quickly or as fully to EU-level goals as Denmark has done.180 South Africa’s 2011 Energy Use in Buildings legislation amended its 1977 National Building Regulations and Building Standards Act.181 The new requirements set energy performance standards and call for new buildings to get at least half of the energy used to supply their hot water from either solar energy or heat pump systems.182 South Africa will also soon require large building owners to issue Energy Performance Certificates that disclose their rates of energy use.183 This regulatory requirement will build on the voluntary third-party verified Green Star South Africa rating system, which resembles the LEED system in the United States, the BREEAM system in the United Kingdom, and expressly imitates Australia’s Green Star rating system.184 A 2013 tax code revision encourages implementation of these various requirements by making energy efficiency savings tax-deductible.185 25.3.2.1.2 Equipment and Appliances EE requirements for equipment and appliances also couple performance standards with labeling requirements to ensure that products meet efficiency requirements and that purchasers can accurately anticipate a given product’s energy use as well as comparing it—in EE terms—to other members of the same product class. This combination of regulatory tools has been applied, in some countries, to nearly all products that use energy to operate, ranging from commercial or industrial-scale motors and HVAC systems to toasters. Performance standards take one of several forms. Minimum Energy Performance Standards (MEPS) set a floor for covered product classes. Japan’s Top Runner Program tethers requirements for average class-wide EE performance to the performance of best-in-class products.186 And High Energy Performance Standards (HEPS) ensure recognition of bestin-class products as exceeding their peers’ EE performance. The United States applies a combination of MEPS and HEPS by establishing a long list of minimum standards and also inviting participation in the Energy Star programme, through which manufacturers can apply for a label indicating that their product’s energy use ranks it in the top 15 per cent of its class.187 Dozens of countries have imposed MEPS on a wide array of appliance and 179 For information about each Member State’s conformance efforts, see European Commission, Buildings, available at: http://bit.ly/1DP5nE2 (last updated 30 July 2016). 180 See [Denmark] Danish Transport and Construction Agency, Building Regulations 2015 (Copenhagen: Danish Transport and Construction Agency, 2015); Danish Enterprise and Construction Authority, Building Regulations 2010 (Copenhagen: Danish Ministry of Economic and Business Affairs, December 2010). These are only the latest examples of Denmark’s efforts in relation to building energy performance. Denmark first adopted prescriptive building energy efficiency requirements in 1961, and first added performance-based compliance requirements to that code in 1982. 181 [South Africa] Government Notice R711/2011 of 9 September 2011, amending National Building Regulations and Building Standards Act 103 of 1977; see also National Building Regulation, SANS 10400 pts. X (environmental Sustainability) and XA (energy usage in buildings); Energy Standard for Buildings with mechanically assisted ventilation systems, SANS 0204 (2007). 182 [South Africa] SANS 10400 pt. XA2; SANS 204 para. 4.5.2 (‘Hot Water Services’). 183 [South Africa] SANS 1944 (2016). 184 See South Africa Green Building Council, ‘Green Star Rating System’, available at: http://bit.ly/2alfiZz. 185 [South Africa] Tax Act 58 of 1962 (as amended) § 12L. 186 Y. Ito, ‘Importance and the Points at Issue over Top-Runner Method’ (1999) 29 Environment and Pollution (in Japanese) (discussing June 1998 amendment to Japan’s Law on Rational Use of Energy). 187 [US] 42 U.S.C. § 6294a(a).

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climate change and energy transition policies 559 equipment categories; somewhat fewer have adopted HEPS.188 Practically speaking, the effectiveness of MEPS or HEPS often turns on the availability of facilities and staff to test product compliance with relevant standards.189 EE labels all indicate relative energy use, but some do so through ‘endorsement’ and others by enabling ‘comparison’. The Energy Star programme mentioned above authorizes manufacturers to affix ‘endorsement’ labels to qualifying products, thereby providing a simple signal that a given product is relatively more efficient than its peers, but providing no on-label details about the parameters signified by the label. Through ‘comparison’ labels, manufacturers indicate—using colour-coding, data, or a combination—a product’s performance relative to its peers. As of 2014, at least eighty-one countries had imposed EE endorsement or comparison labelling requirements.190 Those countries range widely in their location and level of development—Australia, Bangladesh, and Chile, for instance, all require comparative labeling of multiple products.191 As with performance standards, the value of labels for revealing true differences in expected performance turns in part on governments investing adequately in monitoring and verification. 25.3.2.1.3 Vehicles Policies intended to shift the transportation sector away from reliance on fossil fuels seek to achieve that result through greater energy efficiency, or by switching from fossil fuels to electricity, biofuels, or hydrogen—or a combination of efficiency and fuel-switching. In addition to the list of standard EE policy categories listed above (performance and labelling requirements, government procurement, consumer subsidies), which many jurisdictions employ in relation to vehicles as well, policies designed to decarbonize the transport sector also include the construction transit networks and electric or hydrogen fueling stations. The bulk of existing and proposed policies focus on cars and trucks; with only two very recent exceptions,192 governments have generally looked to international bodies—the International Maritime Organization (IMO) and UN International Civil Aviation Organization (ICAO)— to regulate energy efficiency or GHG emissions from marine shipping and air transport.193 188 The CLASP Global S&L [standards and labeling] Database collates the performance standards and labelling requirements of fifty-six countries for seventeen product categories. See: http://clasp.ngo/en/ Tools/Tools/SL_Search. 189 See N. Zhou et al., International Comparison of Product Certification and Verification Methods for Appliances (Berkeley, California: Lawrence Berkeley National Laboratory, June 2012), available at: http:// bit.ly/2bww781. 190 Australian Department of Industry, Energy Standards and Labelling Programs Throughout the World in 2013 (Canberra: Australian Department of Industry, May 2014), viii, available at: http://bit.ly/2biG0lL. 191 See CLASP database, at: http://clasp.ngo/en/Tools/Tools/SL_Search. 192 [US] EPA, Finding that Greenhouse Gas Emissions from Aircraft Cause or Contribute to Air Pollution that May Reasonably Be Anticipated to Endanger Public Health and Welfare, 81 Fed. Reg. 54422 (15 August 2016); [EU] Regulation 2015/757, O.J. (L 123), 19.5.2015, 55–76 (on the monitoring, reporting, and verification of carbon dioxide emissions from maritime transport, and amending Directive 2009/16). 193 See International Maritime Organization, MEPC 62/24/Add.1, Annex 19, Resolution MEPC.203(62) (15 July 2011) (establishing Energy Efficiency Design Index; formally, ‘Inclusion of regulations on energy efficiency for ships in MARPOL Annex VI’); ICAO, Press Release: Recommended standard for aircraft CO2 emissions (8 February 2016), available at: http://bit.ly/1O0hnGe; International Council on Clean Transportation, Policy Update: International Civil Aviation Organization’s CO2 Certification Requirement for New Aircraft (Berlin: International Council on Clean Transportation, August 2013), available at: http://bit.ly/1EQXG0O.

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560 justin gundlach and michael b. gerrard Governments that have established fuel economy standards for passenger vehicles and light-commercial vehicles/light trucks include Brazil,194 Canada,195 China,196 the EU,197 India,198 Japan,199 Mexico,200 Singapore,201 South Korea,202 and the United States.203 Several of those governments have also—or are in the process of—applying similar standards to heavyduty vehicles.204 Some but not all of these fuel economy standards impose GHG emissions reduction requirements directly.205 Other governments, such as New Zealand and British Columbia, Canada, impose no fuel economy requirements but include the liquid fuels used for transport in their comprehensive GHG-pricing schemes—an ETS in New Zealand, and a carbon tax in British Columbia.206 In all of these jurisdictions, retailers who sell cars must also affix prescribed labels to vehicles to indicate their estimated fuel efficiency.207 Several types of policies encourage electrification of the transportation sector. Examples include but are not limited to the corporate average fuel economy (CAFE, as in the United 194 [Brazil] Decreto No. 7.819, de 3 de October de 2012, Diário Oficial da União [D.O.U.] de 3.10.2012, Página 1 (establishing ‘Inovar-Auto’ program). 195 [Canada] Passenger Automobile and Light Truck Greenhouse Gas Emission Regulations, SOR/2010-201 (implementing Canadian Environmental Protection Act, 1999). 196 [China] GB 27999–2011 (imposing per-vehicle emissions limits and corporate average fuel consumption standard). 197 [EU] Regulation 443/2009, O.J. (L 140), 5.6.2009, 1–15 (setting emission performance standards for new passenger cars as part of the Community’s integrated approach to reduce CO2 emissions from light-duty vehicles). 198 [India] Ministry of Power (fuel economy) Regulations, 2015, Gazette of India, section 3(ii) (23 April 2015) (imposing CO2-based fuel economy requirements on light-duty vehicles); see also Energy Conservation Act, 2001, No. 52, Acts of Parliament, 2001 (legislative basis for fuel economy regulation). 199 [Japan] General Resources Energy Investigation Committee, Energy Savings Standards Section, Automobile Standards Judging Subcommittee LPG Car Fuel Efficiency Standards Evaluation Group, Final Report. 200 [Mexico] Norma Official Mexicana [NOM] [Official Standards of Mexico], Diario Oficial, 21 de junio de 2013 (imposing limits on CO2 emissions and equivalents from internal combustion engines in new automotive vehicles weighing at least 3857 kg.). 201 Singapore Land Transport Authority, Press Release: Revised Carbon Emissions-Based Vehicle (CEVS) Scheme from 1 July 2015 (23 February 2015), available at: http://bit.ly/2aH1o9j (listing tightened emissions requirements for motor vehicles). 202 [South Korea] Vehicle Average Fuel Economy and GHG Emission Standards (2012–15), Notification No. 2011–89 of the Ministry of Environment; see also Vehicle Average Fuel Economy and GHG Emission Standards (2016–20), Notification No. 2014–235 of the Ministry of Environment. 203 [U.S.] Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule, 75 Fed. Reg. 25323 (7 May 2010). See also 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). 204 See e.g. [Canada] Heavy-duty Vehicle and Engine Greenhouse Gas Emission Regulations, SOR/2013-24; China [China] GB XXXXX-2016, Fuel consumption limits for heavy-duty commercial vehicles [Stage 3] (4 April 2016), available at: http://bit.ly/2d1WEtt (updating GB 30510–2014, Fuel consumption limits for heavy-duty commercial vehicles [Stage 2]). 205 See e.g. 75 Fed. Reg. 25323 (US), Regulation 443/2009, O.J. (L 140), 5.6.2009, 1–15. 206 [New Zealand] Ministry for the Environment, The New Zealand Emissions Trading Scheme Evaluation 2016 (Wellington: Ministry for the Environment, 2016); [British Columbia] Carbon Tax Act, 2008 S.B.C., ch. 40 § 157. 207 See Transport Policy.nex, ‘Global Comparison: Fuel Efficiency Labeling’, available at: http://bit. ly/2aqtGTJ (last updated 10 December 2014) (listing summaries of labeling requirements for over a dozen jurisdictions).

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climate change and energy transition policies 561 States) or consumption (CAFC, as in China) standards noted above, which recognize zero-emission vehicles (ZEVs) powered by electricity or some other non-fossil fuel as a means of reducing average fuel and emissions intensity.208 By contrast, Norway’s policies employ both sticks and carrots more directly. Norway, which draws its electricity chiefly from hydropower sources, is currently planning to couple its carrots for EVs—which include exemptions from vehicle taxes, parking fees, and tolls—with the stick of a prohibition on the sale of all passenger vehicles and most heavy-duty vehicles powered by an internal combustion engine starting in 2025.209 Similarly, in the Netherlands, a parliamentary vote in March 2016 compelled the cabinet to develop a plan (though not necessarily to adopt it) to prohibit the sale of petrol- and diesel-powered cars by 2025.210 Sub-national governments, including a handful of cities, have also created financial incentives to encourage EV purchase.211

25.3.2.2 Renewable Energy A number of national and sub-national policies encourage or require the development and integration into the electric grid of generation facilities that draw on wind, water, the sun, or geothermal sources of primary energy. Those policies have responded to three major challenges: price-competitiveness with traditional generation, difficulties in siting renewable facilities and transmission lines to link them to existing electric grids, and integrating renewables’ variable outputs and financial profiles into electricity systems built around the assumptions that generation facilities are large, centralized, and responsive to demand. Each of these is discussed in turn below. 25.3.2.2.1 Mandates and Incentives to Ensure Price-competitiveness Governments have helped the private sector to overcome the uncertainties that attend renewables technologies’ novel and developing financial profiles through several means, including feed-in-tariffs, quotas such as renewable portfolio standards (RPSs), and preferential tax treatment or other subsidies.212 Such incentives have proliferated over the past decade;213 the Chinese government, for instance, has employed all three.214 Each of these three categories is described here through examples: Germany’s declining rooftop solar feed-in-tariff; India’s Renewable Purchase Obligations, and tax incentives in the United States. 208 See e.g. [US] 49 C.F.R. pts. 523, 533, and 537 (CAFE programme); China’s State Council, Development Plan of Energy-Efficient and New-Energy Vehicles (2012–20) (Beijing: China’s State Council, 2012), available at: http://www.gov.cn/zwgk/2012-07/09/content_2179032.htm. 209 The proposal features in Norway’s draft 2018–29 Transport Plan. Grunnlagsdokument for Nasjonal transportplan 2018–29. Agreement by political leaders to codify it in legislation was reported in a leading Norwegian newspaper in June 2016. ‘Frp vil fjerne bensinbilene’ Dagens Næringsliv, 2 June 2016. 210 ‘Only electric cars should be sold in Netherlands from 2025’ DutchNews.NL, 30 March 2015, available at: http://bit.ly/1PHeN8K. 211 Amsterdam Roundtables Foundation, Electric Vehicles in Europe: Gearing up for a New Phase? (Amsterdam: McKinsey & Amsterdam Roundtables Foundation, 2014), 17. 212 For a tabulated list of policy types across countries, see REN21, Renewables 2016 Global Status Report (Paris: REN21 Secretariat, 2016), 119–21, available at: http://bit.ly/25U3ipr. 213 A. Boekhoudt and L. Behrendt, Taxes and Incentives for Renewable Energy (KPMG International, September 2015), 2, available at: http://bit.ly/2bRQU3n. 214 See K. Lo, ‘A Critical Review of China’s Rapidly Developing Renewable Energy and Energy Efficiency Policies’ (January 2014) 29 Renewable and Sustainable Energy Reviews 508–16.

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562 justin gundlach and michael b. gerrard From 2001 to 2014, Germany provided a declining feed-in-tariff for electricity produced by various renewable sources, including rooftop solar.215 This incentive, which guarantees twenty years of supplemental payments to solar panel owners for the kW of electricity they generate, has spurred significant nationwide rooftop solar installation.216 The declining rate matched the declining risk to solar panel owners that their sale of electricity back to the grid might not recover the up-front costs of purchase and installation.217 In addition to encouraging adoption of rooftop solar, the tariff was also meant to support Germany’s nascent solar panel manufacturing sector.218 India’s framework climate change law amends the Electricity Act of 2003 to establish targets for rates of renewable generation and to require State Electricity Regulatory Commissions (SERCs) to meet those targets by imposing Renewable Purchase Obligations (RPOs) on utilities in their jurisdictions.219 Utilities unable to meet their RPO directly may purchase renewable energy credits (RECs) to do so.220 The Ministry of New and Renewable Energy recently announced that the minimum solar RPO for all SERCs would be 8 per cent by 2022.221 The United States has provided various tax incentives for renewable electricity generation facilities since passage the Energy Policy Act of 1992,222 most notably the Production Tax Credit (PTC) and the Investment Tax Credit (ITC).223 The PTC provides a tax rebate for a proportion of the electricity produced by renewable facilities; the ITC provides a rebate based on the amount invested in a new renewable facility. Their effects on wind and solar generation capacity development have ebbed and flowed in recent years as Congress has periodically balked at reauthorization; the most recent reauthorization sets end dates for both: the PTC will lapse in 2020, the ITC in 2022.224 25.3.2.2.2 Siting of Transmission Lines Renewables do not conform to the traditional model of large thermal power plants proximate to load centres. Utility-scale renewable facilities that generate 100s or 1000s of MW of electricity—as fossil- or nuclear-fuelled thermal plants do—must cover many more acres 215 The EU issued guidance in 2014 instructing Member States to cease using feed-in-tariffs like those employed by Germany and Spain by 2017. One reason for the guidance was the disruption renewables growth in those countries had caused in their neighbors’ electricity grids and marketplaces, which is discussed later in this ssection. 216 H. Wirth, Recent Facts about Photovoltaics in Germany (Freiburg: Frauenhofer ISE, Apr. 2016), available at: http://bit.ly/1Lmb8M8. 217 See M. Fulton et al., ‘The German Feed-in Tariff: Recent Policy Changes’ (New York: Deutsche Bank, September 2012), 18–20 (describing tariff rate changes), available at: http://bit.ly/2cdkUJz. 218 Y. Chen, EU-China Solar Panels Trade Dispute: Settlement and Challenges to the EU (Brussels: European Institute for Asian Studies, June 2015), 2–3 (summarizing trade dispute over alleged dumping of cheap Chinese PV in EU markets), available at: http://bit.ly/2cEPkXd. 219 See Ministry of New and Renewable Energy, Jawaharlal Nehru National Solar Mission Phase II: Policy Document (New Dehli: Ministry of New & Renewable Energy, 2012), 18–19 (listing regional targets imposed by Electricity Act 2003 and consistent with Solar Mission). 220 [India] Ministry of Power, Tariff Policy, Gazette of India, Part I, Section I, Resolution No. 23/2/2005R&R (Vol. III) (6 January 2006). 221 Ibid. 222 [US] Energy Policy Act of 1992 § 1212. 223 These shorthand titles refer to the Renewable Electricity Production Tax Credit, the Business Energy Investment Tax Credit, and the Residential Renewable Energy Tax Credit. 224 [US] Consolidated Appropriations Act, 2016, Pub. L. No. 114–113, Div. Q, 129 Stat. 2242 (18 December 2015).

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climate change and energy transition policies 563 of land.225 However, they must also be located wherever the primary energy source or adequate land is available, which can mean far from both load centres and existing transmission lines. Developing such facilities and connecting them to load centres therefore requires assembling rights of way and acquiring the various permits and licences required of any project that can be expected to have potentially significant environmental impacts. Chile, China, and the United States offer examples of how national governments have addressed the challenge of building transmission lines to link utility-scale renewables development to load centres. Chile, which has struggled to link locations like the Atacama Desert in the north (ideal for solar farms) to Santiago and other cities further south,226 in July 2016 adopted legislation restructuring electricity transmission planning and regulation.227 In addition to assigning responsibility for those tasks to an independent regulatory authority, the legislation redefines the parameters of the transmission system, revises planning protocols, and requires competitive bidding where prices were previously insulated from market pressures.228 In China, although the Twelfth and Thirteenth Five Year Plans that govern the economy as a whole set forth ambitious targets for national renewable generation capacity, they provide no specific guidance on electricity sector planning.229 Provincial governments have therefore taken on the tasks of generation and transmission planning, but have generally not coordinated the two, in addition to not coordinating with other provinces.230 The results have included mushrooming wind and solar farms of mixed quality, delayed grid connections, and high curtailment rates at sites where more electricity is generated than can be consumed.231 In the United States, the courts dashed expectations that the Energy Policy Act of 2005’s promotion of National Interest Electric Transmission Corridors would streamline the process of transmission line development by making it harder for state- and local actors to resist connecting wind and solar farms to distant cities.232 The courts’ 2009 and 2011 interpretations 225 C. Zichella and J. Hladik, ‘Siting: Finding a Home for Renewable Energy and Transmission’ (October 2013) 26 Electricity Journal 125–38 (reporting estimated land area required in different US renewables development scenarios). 226 For a general description of Chile’s renewable generation potential and the impediments presented by geography and existing institutional structures, see S. Woodhouse and P. Meisen, Renewable Energy Potential of Chile (San Diego: Global Energy Network Institute, August 2011), available at: http://bit. ly/2bQ9Q3d. 227 [Chile] 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], available at: http://bit.ly/2bOqu2Y, amending in part Ley No. 4/20.018 (General Electricity Services Law) and Ley No. 18.410 (Law Establishing the Electricity and Gas Authority). 228 Ibid; see also Carey y Cía. Ltda., News Alert: Law establishes new Power Transmission Systems and Creates an Independent Coordinating Body for the National Power System (Law No. 20. 936), available at: http://bit.ly/2bJKJBp (summarizing key provisions). 229 F. Kahrl and X. Wang, Integrating Renewables into Power Systems in China: A Technical Primer— Electricity Planning (Beijing, China: Regulatory Assistance Project 2015), 28–32. 230 Ibid. 231 X. Lu et al., ‘Challenges Faced by China Compared with the US in Developing Wind Power’ (June 2016) 1 Nature Energy 1–6, available at: http://go.nature.com/2bGa0Lv. 232 California Wilderness Coal. v U.S. Dep’t of Energy, 631 F.3d 1072 (9th Cir. 2011) (rejecting argument that Energy Policy Act of 2005 change to Federal Power Act § 216 gave Federal Energy Regulatory

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564 justin gundlach and michael b. gerrard of the 2005 Act leaves state authorities in a position to authorize or refuse new transmission facilities, even if those facilities do not originate or end in but simply cross a given state, based on determinations of ‘need’ for such facilities within that state’s borders.233 25.3.2.2.3 Integrating Renewables into Grid Operations and Ac c ounting Renewable generation is ‘variable’, meaning that facilities reliant on the wind or sun for primary energy cannot control when the sun shines or the wind blows, and so can only generate electricity when those resources make it possible to do so. Renewable generation can also be undertaken at different scales: utility-scale facilities cover large swathes of land (or ocean) and generate electricity at the same order of magnitude as small and mid-sized thermal power plants, community-scale solar farms tend to have a maximum capacity of about 1 MW, and installations on commercial rooftops or parking lots and on residential rooftops are smaller still. Variability and scalar diversity both depart from the patterns that have informed physical and institutional design of electricity grids for decades. In developed countries with long-established grids, accommodating these features while ensuring reliable electric services and financial viability means changing the way grids are managed. In developing countries where electrification continues, renewables can sometimes offer a costeffective means of alleviating energy poverty while avoiding adoption of centralized generation and transmission systems. The following examples illustrate how policy has responded to (or, thus far, ignored) these points: German grid operators’ and utilities’ struggles to adjust to growing volumes of wind and solar; utility business model reform in the United Kingdom; and off-grid electrification in parts of rural Bangladesh, Tanzania, and elsewhere. The significant growth in Germany’s off- and on-shore wind installations and rooftop solar panels has challenged grid operators’ ability to maintain the necessary minute-tominute balance between electricity generation and load.234 To balance large influxes of power from wind farms or deficits as clouds suddenly prevent solar panels from generating, German grid operators would routinely either ‘dump’ surfeit power into the Polish or Czech grids or call on generators in those countries to ramp up—that is, until 2014, when Polish and Czech grid operators began installing specially designed transformers on their national borders to prevent the practice.235 Thus, Germany did not so much craft policies to deal thoroughly with renewables’ disruptions to grid operations as seek to develop transmission capacity for the longer term while solving the immediate problem by exporting those disruptions as they arose. In 2010, the United Kingdom’s Office of Gas and Electricity Markets announced that it would overhaul the traditional utility regulatory model and replace it with one called Commission (FERC) jurisdiction over transmission line siting if responsible state agencies withheld approval for more than one year); Piedmont Envtl. Council v FERC, 558 F.3d 304, 320 (4th Cir. 2009) (similar). 233 See e.g. [U.S.] Fla. Stat. Ann. § 403.537(c); Mont. Code Ann. § 75-20-301(2); Me. Rev. Stat. tit. 35-A, § 3132(6). 234 dena [German Energy Agency], Grid Study II: Integration of Renewable Energy Sources in the German Power Supply System from 2015–2020 with an Outlook to 2025 (Berlin: German Energy Agency, 2010), 270–2 (indicated modeled instances of ‘nontransmissible power’, i.e. where surfeit generation or deficits in transmission capacity led to imbalances in the grid crossing two or more regions). 235 World Nuclear Association, Germany’s Energiewende (updated 25 August 2016), available at: http:// bit.ly/2bErnia.

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climate change and energy transition policies 565 RIIO—short for Revenue=Incentives+Innovation+Outputs.236 Under RIIO, electric utilities’ performance obligations include GHG emissions reductions and efforts to fashion a ‘smart grid’ that is better able to integrate electricity from utility-scale renewables and to accommodate distributed generation resources.237 Rural communities in Bangladesh, Tanzania, and dozens of other countries are in some instances turning to off-grid renewables—often in combination with diesel generators238— for electrification instead of developing connections to a centralized electric grid. Adoption of these freestanding power systems often follows from a combination of national policy support and at least partial financing from foreign governments or NGOs.239 Those policies often include tax exemptions for off-grid system components, collaborations with domestic or international financing organizations, and in rare instances—as with Peru’s National Photovoltaic Household Electrification programme—direct provision of solar photovoltaic systems to qualifying households.240

25.3.2.3 Fossil Fuels The range of policy approaches countries are currently taking to fossil fuels encompasses, at one extreme, incremental steps towards phase-out (Norway), and, at the other, active, unlimited development (Kuwait). Most countries fall somewhere in between. Even in countries like Germany or France, where an energy transition is being implemented through a comprehensive suite of legislative and regulatory provisions, efforts to shift away from emissions-intensive fossil fuels have been balanced against other priorities. In countries with less forcefully articulated energy transition policies, like India or Pakistan, the weight of other priorities (energy security, rapid economic growth) tips the balance even more in favour of maintaining or further developing capacities to produce and/or consume fossil fuels. Importantly, however, not all fossil fuels are alike, and policies that encourage switching from coal to natural gas and from automotive gasoline to biofuel mixtures reflect an effort to reduce the emissions intensity of fossil fuel use if not fossil fuel use as such. Meanwhile, countries across the spectrum noted above, including Australia, China, the EU, and the United States,241 are pursuing the development of carbon capture, sequestration, and utilization technologies, which would theoretically neutralize or confine the GHG emissions from at least some forms of fossil fuel consumption. The rest of this section elaborates on this 236 [UK] Ofgem, RIIO: A New Way to Regulate Energy Networks; Final Decision (London: Office of Gas and Electricity Markets, October 2010), available at: http://bit.ly/2bjRWat. 237 [UK] Ofgem, Environment Report Guidance Document (London: Office of Gas and Electricity Markets, February 2016), available at: http://bit.ly/2bjAhlY (specifying regulated entities’ reporting obligations for environmental performance standards). 238 G. Léna, Rural Electrification with PV Hybrid Systems: Overview and Recommendations for Further Deployment (Paris: International Energy Agency, 2013), available at: http://bit.ly/2bmD73i. 239 See e.g. Government of India, 12th Five Year Plan (New Dehli: Government of India, 2012), 121 (noting that National Solar Mission calls for 2000 MW of off-grid solar by 2022); see also E. Baldwin et al., ‘Electrification and Rural Development: Issues of Scale in Distributed Generation’, 4 WIREs Energy Environment (2015), 196–211 (surveying projects and noting role of government policies in project success). 240 REN21, Renewables 2016 Global Status Report (Paris: REN21 Secretariat, 2016), 95. 241 See H. Rütters et al., State of Play on CO2 Geological Storage in 28 European Countries (CGS Europe, June 2013), available at: http://bit.ly/2bFTYE0.

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566 justin gundlach and michael b. gerrard summary description, highlighting salient interactions between energy transition policies, other policies not born of an energy transition agenda, and fossil fuels. 25.3.2.3.1 Ongoing Devel opment Pakistan’s development of the enormous Thar coal field holds promise for Pakistani energy security and economic development.242 Pakistan’s INDC, submitted to the UNFCCC Secretariat in 2015, says little that would constrain the Thar’s development, and even presages it—paragraph three begins: ‘Pakistan’s development needs are expected to grow necessitating the requirement of affordable sources of power generation . . . .’.243 Similarly, in Indonesia, the government in 2015 responded to repeated energy shortages attendant to urbanization and industrial development by announcing plans to build 35 GW of generating capacity—20 GW (57 per cent) coal-fired, 13 MW (37 per cent) gas-fired, and 3.7 MW (11 per cent) renewable.244 This breakdown reflects Indonesia’s access to large, undeveloped domestic coal reserves and a lack of strong countervailing pressure from policies informed by climate-related and energy transition goals.245 Australia, which in 2014 repealed its carbon tax and other components of the 2011 Clean Energy Future Plan,246 shows little sign of moving its electricity or export sectors away from heavy reliance on coal.247 It thus offers a third example of persistent coal production and consumption in a country with large coal reserves, which serves to illustrate the importance of exploitable natural resource endowments relative to other economic opportunities in developed as well as developing countries. 25.3.2.3.2 Nuclear Phase-ou t First In the aftermath of the Fukushima disaster, Japan shuttered a number of its nuclear plants temporarily,248 Chile concluded that its susceptibility to earthquakes and tsunamis ruled out nuclear development,249 and Germany accelerated its plans for nuclear phase-out.250 Because renewables and energy conservation cannot be made to offset the resulting electricity generation deficit in Germany fast enough, Fukushima pushed it to ramp up coal-fired plants to satisfy demand, effectively delaying their phase-out until after the 2022 phase-out of nuclear. 242 See Pakistan Board of Investment, List of Pakistan-China MoUs (22 November 2015), paras. 27–47, available at: http://bit.ly/2ceODnL (listing energy projects, dominated by but not limited to coal fields and power plants, financed by Chinese private and governmental entities). 243 Pakistan INDC (12 November 2015). 244 Enerdata, ‘Recent Energy News: Indonesia Releases its 35 GW Power Capacity Addition Plan’, 6 May 2015, available at: http://bit.ly/2aNgho7. 245 See Climate Action Tracker, Indonesia (updated 21 October 2015), at: http://bit.ly/2cOt6kx. 246 K. Loynes, Carbon Price Repeal Bills: Quick Guide (Parliament of Australia), available at: http://bit. ly/2c1OSkN (updated 20 November 2013) (providing annotated record of policy changes and links to key documents). 247 World Nuclear Association, Australia’s Electricity (July 2016), available at: http://bit.ly/2bUFAot. 248 World Nuclear Association, Nuclear Power in Japan (August 2016), available at: http://bit. ly/1MP7od8. 249 [Chile] Ministry of Energy, National Energy Strategy 2012–2030 (Santiago: Government of Chile, February 2012), 13, available at: http://bit.ly/2boztuE. 250 [Germany] Regierungserklärung der Bundeskanzlerin Angela Merkel zur aktuellen Lage in Japan (Mitschrift) [Government Statement of Federal Chancellor Angela Merkel regarding current situation in Japan (prepared remarks)] (17 March 2011), available at: http://bit.ly/2cOFMYq.

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climate change and energy transition policies 567 25.3.2.3.3 Incidental C onstraints Non-GHG-focused air pollution policies are playing a significant if incidental role in energy transitions in China and the United States. In China, where coal-fired electricity generating units (EGUs) have made urban air quality notoriously bad, policy has responded with efforts to curtail coal emissions in the near-term and to substitute other resources for coal in the medium- and long term.251 These efforts also include, but are not limited to, building coal-gasification facilities away from major cities that will render coal into a cleaner-burning fuel.252 In the United States, the federal EPA included climate benefits in its tally of public health and other benefits accruing from regulations of mercury, arsenic, ozone precursors, and particulate matter emitted by coal-fired EGUs.253 Because these regulations were issued in a period of very low natural gas prices and late in the useful life of many coal-fired EGUs, their indirect impact on GHG emissions from coal-fired EGUs has been especially large. 25.3.2.3.4 Fuel-switching The US government’s efforts to facilitate the extraction and transmission254 of natural gas while also regulating fugitive methane releases255 are consistent with the premise that natural gas serves as a ‘bridge fuel’ to a low- or zero-GHG-emissions economy.256 However, the fuel-switching currently underway in the US electricity sector does not include requirements that new natural gas-fired power plants be designed to incorporate CCS/U technology,257

251 [China] 13th Five Year Plan (English translation) (Beijing: Government of China, March 2016); Atmospheric Pollution Prevention and Control Law of the People’s Republic of China (adopted by the Congress of the People’s Republic, 29 August 2015, effective 1 January 2016); Beijing Municipal Government, Five-Year Clean Air Action Plan 2013–17 (Beijing Municipal Government, 2013) (restricting coal-usage to less than half of 2012 levels). 252 W. J. Kelly, ‘China’s Plan to Clean Up Air in Cities Will Doom the Climate, Scientists Say’ InsideClimate News, 13 February 2014, available at: http://bit.ly/2bGHV4O. 253 [US] EPA, National Emission Standards for Hazardous Air Pollutants From Coal- and Oil–Fired Electric Utility Steam Generating Units and Standards of Performance for Fossil–Fuel–Fired Electric Utility, Industrial–Commercial–Institutional, and Small Industrial–Commercial–Institutional Steam Generating Units, Final Rule, 77 Fed. Reg. 9304 (16 February 2012); EPA, Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals, 76 Fed. Reg. 48,208 (8 August 2011). 254 Energy Policy Act of 2005 § 322 (exempting hydrofracture drilling from permitting requirements under the Safe Drinking Water Act); Z. Wang and A. Krupnick, A Retrospective Review of Shale Gas Development in the United States—What Led to the Boom? (Washington D.C.: Resources for the Future, 2013), 6–14, available at: http://bit.ly/2c1YXy8 (describing federally supported R&D that led to development of hydrofracture technologies); EarthReports, Inc. v FERC, No. 15–1127, 2016 WL 3853830 (D.C. Cir. 15 July 2016) (upholding FERC position that new pipelines and export terminal will not have foreseeable upstream or downstream GHG emission impacts). 255 [US] EPA, Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources, 81 Fed. Reg. 35823 (3 June 2016), codified at 40 C.F.R. 60; EPA, Oil and Natural Gas Sector: Request for Information, Emerging Technologies, 81 Fed. Reg. 46670 (18 July 2016). 256 [US] Executive Office of the President, The All-of-the-Above Energy Strategy as a Path to Sustainable Economic Growth (Washington, D.C.: Executive Office of the President, May 2014), 31–5, available at: http://bit.ly/2bUPrum. 257 See EPA, Final Carbon Pollution Standards for New, Modified and Reconstructed Power Plants, 80 Fed Reg 64510, 64529–43 (23 October 2015), codified at 40 CFR pts 60, 70, 71.

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568 justin gundlach and michael b. gerrard even though the useful life of natural gas infrastructure is long enough to strongly imply that it will become relatively emissions intensive before it is decommissioned.258 25.3.2.3.5 Carb on Cap ture and Sequestration/U tiliz ation Carbon capture and sequestration or utilization (CCS/U) technologies hold promise for two very different purposes: whereas advocates for continuing to use fossil fuels as a primary energy source look on it as a means of decoupling such usage from the GHG emissions responsible for climate change, others (including the EU) look on it chiefly as a means of containing the damage wrought by existing fossil-fueled facilities while developing their replacements.259 Thus research into CCS/U technologies, which is being conducted in numerous countries and making slow gains,260 currently serves two purposes that will likely diverge once it becomes commercially viable. In the meantime, several countries have made either CCS/U or the ability to integrate CCS/U a compulsory design element for qualifying sources of GHGs—in the United Kingdom (consistent with EU requirements),261 all ‘combustion power plants’ with a capacity of 300MW or greater must be ‘carbon capture ready’;262 in the United States, new or modified coal-fired EGUs must incorporate CCS technologies.263 These requirements raise the cost of EGU construction, in many instances making those costs prohibitive. 25.3.2.3.6 Fossil Fuel Subsidies In December 2014, Indonesia took the exceptional step of repealing subsidies for fossil fuel consumption and redirecting funds towards health and welfare programmes.264 Even though the G7 and G20 have made several statements about coordinated subsidy reform since 2009,265 and even though thirteen countries listed subsidy reform in the INDC they 258 See Z. Hausfather, ‘Bounding the Climate Viability of Natural Gas as a Bridge Fuel to Displace Coal’ (2015) 86 Energy Policy 286–94 (identifying key uncertainties that inform whether natural gas can provide a ‘bridge’ to zero-emissions energy generation technologies). 259 See [EU] Council Directive 2009/31 O.J. (L 315), 14.11.2012, 1–56, at para. 4 (on the geological storage of carbon dioxide) (‘Carbon dioxide capture and geological storage (CCS) is a bridging technology that will contribute to mitigating climate change. It consists of the capture of carbon dioxide (CO2) from industrial installations, its transport to a storage site and its injection into a suitable underground geological formation for the purposes of permanent storage. This technology should not serve as an incentive to increase the share of fossil fuel power plants. Its development should not lead to a reduction of efforts to support energy saving policies, renewable energies and other safe and sustainable low carbon technologies, both in research and financial terms.’). 260 Z. Kapetaki et al., ‘European Carbon Capture and Storage Project Network: Overview of the Status and Developments’ (2016, 86 Energy Procedia 12–21; J. Gaede and J. Meadowcroft, ‘Carbon Capture and Storage Demonstration and Low-Carbon Energy Transitions: Explaining Limited Progress’ in T. Van de Graaf et al. (eds.), The Palgrave Handbook of the International Political Economy of Energy (London: Palgrave Macmillan, 2016), 319–40. 261 See [EU] Council Directive 2009/31, para. 47. 262 UK Electricity Act of 1989 as amended, s. 36. Department of Energy and Climate Change, Carbon Capture Readiness (CCR): A guidance note for Section 36 Electricity Act 1989 consent applications (London: Department of Energy and Climate Change, November 2009), available at: http://bit.ly/2bTq7nG. 263 [US] EPA, 80 Fed Reg 64510, codified at 40 C.F.R. pts. 60, 70, 71. 264 R. Pradiptyo et al., Financing Development with Fossil Fuel Subsidies: The Reallocation of Indonesia’s Gasoline and Diesel Subsidies in 2015 (Winnipeg, Canada: IISD 2016), available at: http://bit.ly/2bvw9vc. 265 G7 Ise-Shima Summit, 26–7 May 2016, G7 Ise-Shima Leaders’ Declaration, 28, available at: http:// bit.ly/1Rvj7J7; G20, Pittsburgh Declaration (2009), para. 24; G20, St. Petersburg Declaration (2013), para. 94;

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climate change and energy transition policies 569 submitted to the UNFCCC in 2015,266 few have followed Indonesia’s lead, leaving myriad national subsidies in place and prospectively secure.267

25.3.2.4 Nuclear As has already been noted, Germany is retreating from nuclear power and Chile has suspended its exploration of it, but many other countries are establishing or increasing their nuclear generating capacity,268 and several governments are actively supporting R&D in pursuit of reactors that are safer, smaller, and/or generate less high-level waste. The examples discussed below from France, India, and the United States highlight key issues arising from the development and maintenance of nuclear reactors for electricity generation. The French fleet of fifty-eight reactors has long produced more than three-quarters of the country’s electricity, and has provided the basis for substantial electricity exports and a small industry related to the reprocessing of high-level nuclear waste generated in reactors located not only in France but in other countries as well.269 France plans to scale back the nuclear share of nationwide electricity generating capacity, even though it has managed to avoid controversies over long-term waste storage such as have arisen in Germany and the United States.270 As France’s reactor fleet has been critical to its low GHG emissions profile, see also International Monetary Fund, Case Studies on Energy Subsidy Reform—Lessons and Implications (Washington D.C.: IMF, 2013) (finding that many reform efforts fail or cause significant political and economic disruption). 266 A. Terton et al., Fiscal Instruments in INDCs: How Countries are Looking to Fiscal Policies to Support INDC Implementation (Geneva: Global Subsidies Initiative, December 2015). 267 For a survey of existing subsidies, see OECD, Inventory of Estimated Budgetary Support and Tax Expenditures for Fossil Fuels 2013 (Paris: OECD Publishing, 2012), available at: http://bit.ly/2bEfdV4. For a discussion of proposals for phase-out, see IEA, OECD, and World Bank, The Scope of Fossil Fuel Subsidies in 2009 and a Roadmap for Phasing Out Fossil Fuel Subsidies (Paris: IEA, OECD/Washington D.C.: World Bank, 2010). 268 World Nuclear Association, Plans For New Reactors Worldwide (updated April 2016), available at: http://bit.ly/1Z87AFM (reporting that sixty reactors are under construction in the following fifteen countries: Argentina, Brazil, China, Finland, France, India, Pakistan, Romania, Russia, Slovakia, South Korea, the United Arab Emirates, and the United States). 269 International Atomic Energy Agency (IAEA), Power Reactor Information System: France, available at: http://bit.ly/2bmBYz1 (updated 25 August 2016); (IAEA), Country Nuclear Fuel Cycle Profiles, 2nd edon; Technical Reports Series No. 425 (Vienna: IAEA, 2005), 17, available at: http://bit.ly/2bn6pSF (noting that French reprocessing facilities handle waste from reactors in France, Belgium, Germany, Japan, the Netherlands, and Switzerland). 270 Political disputes have dogged both the Gorleben and Yucca Mountain repositories. J. Thurau, ‘Germany to Dump Nuclear Waste for Good—But Where?’ DeutscheWelle, 5 July 2016, available at: http://bit.ly/2c1l70N (‘A few years ago, the government decided to give up on the idea of Gorleben as the sole option for a final nuclear waste depository site, and to look for options throughout the entire country.’); German Federal Ministry of Economics and Technology, Final Disposal of High-level Radioactive Waste in Germany—The Gorleben Repository Project (Berlin: German Federal Ministry of Economics and Technology, October 2008), 3 (‘Exploration work has been underway at the Gorleben salt dome since 1979 for this very purpose.’); Blue Ribbon Commission on America’s Nuclear Future, Report to the Secretary of Energy (Washington D.C.: U.S. Department of Energy, January 2012), vi (‘America’s nuclear waste management program is at an impasse’), available at: http://bit.ly/2cpFzIi; J. Stewart and R. Stewart, Fuel Cycle to Nowhere: US Law and Policy on Nuclear Waste (Nashville: Vanderbilt University Press, 2011), 4 (‘The history shows that the most important and difficult challenges are not technical but political, institutional, and social.’). France has had less difficulty for a combination of reasons: (i) French nuclear

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570 justin gundlach and michael b. gerrard plans to close and not replace aging reactors without increasing the electricity sector’s emissions intensity rely on achieving a substantial degree of energy conservation, efficiency, and renewables targets. India is home to twenty-one power reactors, and six more are under construction there.271 Although nuclear reactors have operated in India since the 1970s, over half of the twenty-one currently in operation first switched on after India signed a civil nuclear agreement (the ‘123 Agreement’) with the United States in 2008.272 India’s ambitious plans call for 63 GW of nuclear generating capacity by 2032 (its current capacity is 5.6 GW) to keep pace with burgeoning demand for energy by industrial, commercial, and residential consumers.273 In addition to increasing the size of its fleet, India is also developing reprocessing capacity and capacity to enrich its domestic supplies of thorium, a fissionable fuel less volatile than conventional enriched uranium and not useful for nuclear weapons.274 This combination will allow India to avoid the accumulation of a large volume of volatile, high-level waste, and to do so in a way that does not raise international concerns about the accumulation of high volumes of weaponizable plutonium from fuel reprocessing. The United States is home to an aging, shrinking fleet of about 100 reactors that are experiencing increasing levels of financial stress amid low natural gas prices. It has no civilian reprocessing capacity, so that the fleet generates large volumes of high-level waste. The legislative solution devised in 1982 and 1988 to that waste’s accumulation has run into a series of political stumbling blocks, and plans for how to safely store or dispose of it are now uncertain.275 That uncertainty further undermines the prospect of new reactor development, which is made all but impossible anyway by a combination of enormous capital costs, plentiful and project-slowing safety regulations, and wholesale electricity capacity markets’ preference for smaller generation projects with higher rates of return.276 The four new reactors currently under construction in the United States are exceptions that prove the rule: all four are backed by billions of dollars of federal loan guarantees and have been waste reprocessing reduces the country’s volume of high-level waste by about 50 per cent (though it also yields 200 per cent more low-level waste than would a direct disposal system); (ii) France stores highlevel waste above ground for several decades, allowing it to cool, then vitrifies it in borosilicate (a highly stable form of glass), which facilitates transport and disposal; and (iii) in contrast to Germany and the United States, France also lacks regional authorities that can easily challenge national directives about repository siting or disposal plans. 271 IAEA, Power Reactor Information System: India, available at: http://bit.ly/1TCFOC2 (updated 25 August 2016). 272 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), available at: http:// bit.ly/2bTFRHC; World Nuclear Association, Nuclear Power in India (updated 17 August 2016), available at: http://bit.ly/2bTHllb. 273 World Nuclear Association, Nuclear Power in India (updated 17 August 2016), available at: http:// bit.ly/2bTHllb. 274 Ibid. 275 Nuclear Waste Policy Act of 1982, Pub. L. No. 97–425, 96 Stat. 2201 (7 January 1983), as amended Pub. L. No. 100–203, Title V, Subtitle A (22 December 1987) and Pub. L. No. 100–507 (18 October 1988), codified at 42 U.S.C. § 10134; see also Blue Ribbon Commission on America’s Nuclear Future, Report to the Secretary of Energy (Washington D.C.: U.S. Department of Energy, January 2012), viii (listing proposed legislative changes). 276 J. Deutsch et al., Update of the MIT 2003 Future of Nuclear Power (Boston: Massachusetts Institute of Technology Energy Initiative, 2009), available at: http://bit.ly/1RJYLig.

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climate change and energy transition policies 571 authorized for early cost recovery by public service commissions in Georgia and South Carolina—jurisdictions where electricity prices are regulated rather than set by market fluctuations.277 Recognizing that advanced designs, including small modular reactor (SMRs), could theoretically solve most of the problems currently making new reactor development so difficult, the US Department of Energy has recently coordinated or directly funded multiple R&D initiatives.278

25.4 Role of International Agreements in National Activities International agreements play important roles in the implementation of the climate change and energy transition policies described above. As described briefly here, they support efforts by developing countries to decouple GHG emissions intensity from economic growth; they address the production, use, and disposal of F-gases; and they seek to address emissions from aircraft and ships.

25.4.1 Supporting Low-Emissions Development Numerous vehicles offer connections between investors in developed countries and projects in developing countries that would foster low- or no-emissions development in developing, but two in particular predominate: the Clean Development Mechanism (CDM) established by the Kyoto Protocol, and REDD+ refined by the 2007 Bali Action Plan and the 2010 Cancun Agreements. A CDM project in Morocco, and a REDD+ project in Vietnam provide illustrative examples. Like a cap-and-trade programme, the Kyoto Protocol’s imposition of emission limits caused emissions to take on economic value. The CDM was devised so that emitters in developed countries could, instead of reducing their own GHG emissions, sponsor projects in developing countries that would foster development but in a way that avoided GHG emissions. The marginal cost of emissions reduction in the developing country being lower, and the cost of capital to the entity in the developing country being higher, the exchange would provide a more efficient means of emissions reduction than either party could accomplish on its own. For example, through CDM Project 0042, ‘the Tétouan Wind Farm Project for Lafarge Cement Plant’, a French firm sponsored installation of a 12-turbine, 10.2 MW wind 277 Energy Policy Act of 2005 tit. XVII; Georgia Public Service Commission, Certification Order, Docket No. 27800, Georgia Power’s Application for the Certification of Units 3 and 4 at Plant Vogtle and Updated Integrated Resource Plan, 7–9; Georgia Nuclear Energy Financing Act, 2009 Ga. Laws 39 (authorizing recovery of costs of developing two new reactors, including Construction Work In Progress payments before any electricity is generated); South Carolina Base Load Review Act, S.C. Ann. §§ 58-33210 to -298, 2007 Act No. 16, § 2; see also M. Holt, Nuclear Energy Policy (Washington D.C.: Congressional Research Service, October 2014), 23–5, available at: http://bit.ly/2bc9LIq. 278 World Nuclear Association, Small Nuclear Power Reactors: US Support for SMRs, available at: http://bit.ly/2biaZn0 (updated June 2016).

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572 justin gundlach and michael b. gerrard farm at a Moroccan cement plant.279 In 2012, after seven years of operation, the wind farm was estimated to have avoided 158,354 tons of CO2 emission by substituting for the purchase of electricity through the transmission grid, which drew on oil-, coal-, and gas-fired power plants.280 Though the project preceded passage of Morocco’s renewable energy law in 2010 and its framework sustainable development law in 2014,281 should a similar CDM project establish another wind farm in Morocco, it would thereby help achieve compliance with those laws’ renewables targets using financing from abroad. REDD+ recognizes that forests provide important and roughly quantifiable carbon sinks, and that the monetized value of such sinks to potential project sponsors often exceeds what local farmers can get from clearing those forests to gain access to arable land. Thus, as with the CDM, connecting sponsors in developed countries to project participants in developing countries provides an efficient way to reduce atmospheric GHG emissions—in the case of REDD+, by avoiding deforestation or forest degradation, managing forests sustainably, or conserving or enhancing forest stocks. Vietnam’s 2012 REDD+ National Action Program implements land use and environmental protection laws adopted from 2003 to 2005.282 One Vietnamese REDD+ project, ‘Mangroves and Markets: supporting mangrove protection in Ca Mau Province, Vietnam’, ran from 2012 to 2016.283 It involved training roughly 2,700 farmers in shrimping techniques that do not involve industrial chemicals, restored abandoned shrimp ponds, and thereby alleviated pressures that might otherwise have led farmers to deplete existing ponds and clear mangrove forests to gain access to new ones.284 The project thus protected Ca Mau’s mangroves, which act both as a carbon sink and a source of resilience to coastal storms.

25.4.2 Dealing with F-gases The UNFCCC and the Vienna Convention for the Protection of the Ozone Layer overlap in their goals of protecting the climate, and also more specifically in their address of highGWP fluorinated gases (F-gases). The Vienna Convention’s Montreal Protocol on Substances that Deplete the Ozone Layer, which entered into force in 1989, provided basic coordination 279 [UNFCCC] CDM Project Design Document: Tétouan Wind Farm Project for Lafarge Cement Plant (UNFCCC, October 2012), available at: http://bit.ly/2bU6xrB (describing project, baseline emissions avoided, and grounds for extension of initial seven-year project duration for an additional seven-year period). 280 Ibid., at 27–8. 281 [Morocco] Loi no. 13–09 relative aux énergies renouvelables [Renewable Energy Law], promulguée par Dahir no. 1-10-16 du 26 Safar 1431 (11 février 2010) publiée au Bulletin officiel no. 5822 du 1er rabii II 1431 (18 mars 2010); Dahir n 1-14-09 du joumada I 1435 (6 mars 2014) portant promulgation de la loi cadre n 99–12 portant charte nationale de l’environment et du développement durable [Framework Law 99–12 regarding the National Charter of the Environment and Sustainable Development]. 282 [Vietnam] Decision No.799/Q-TTg, On Approval of the National Action Program on Reduction of Greenhouse Gas Emissions through Efforts to Reduce Deforestation and Forest Degradation, Sustainable Management of Forest Resources, and Conservation and Enhancement of Forest Carbon Stocks 2011–2020 (Hanoi, 27 June 2012), available at: http://bit.ly/2axBHIk. 283 ‘Mangroves and Markets: supporting mangrove protection in Ca Mau Province, Vietnam’, the REDD desk: a collaborative resource for REDD readiness, available at: http://bit.ly/2bneKc4. 284 Ibid.

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climate change and energy transition policies 573 for the rapid phase-out of chlorofluorocarbons (CFCs) through the combined efforts of governments, manufacturers, and retailers.285 As noted in section 25.2.3.6.3, that phase-out prompted manufacturers to develop substitute refrigerants using HFCs, hydrochlorofluorocarbons (HCFCs), and other F-gases, which do not damage the ozone layer if released but have extremely large GWPs, making their release damaging to the climate in a different way. While a number of national governments have taken steps to regulate the manufacture, sale, and disposal of F-gases,286 there is general agreement that, as with CFCs, only international coordination and commitments can ensure the effective regulation and eventual phase-out of F-gases—and that the Montreal Protocol offers a suitable legal vehicle for the purpose.287 Preliminary negotiations in 2015 yielded several proposals for such regulations,288 none of which were adopted at the July 2016 conference of the parties to the Montreal Protocol.289 As with negotiations over other GHG emissions, the sticking point (articulated most forcefully by India) relates to developing countries’ argument that they should either have temporary licence to emit for the sake of development or, if they adopt the tighter timeframe sought by developed countries, that they should receive substantial support to find and deploy alternative means of promoting development.290

25.4.3 Controlling Aircraft and Marine Shipping Emissions Over 3 per cent of GHG emissions originate with the aircraft and marine ships that traverse national boundaries daily,291 but these emissions are growing apace,292 are not subject to the UNFCCC, and are subject to few national regulations that bite—the inclusion of aircraft emissions in the EU ETS is the notable exception.293 The UNFCCC defers their regulation to the ICAO and the IMO, which have moved slowly and have only recently begun to move 285 UNEP Ozone Secretariat, Handbook for the Montreal Protocol on Substances that Deplete the Ozone Layer (Vienna: UN Environment Program, 2012), available at: http://bit.ly/2bOtbD5. 286 See D. Brack, National Legislation on Hydrofluorocarbons, 11 September 2015, available at: http:// bit.ly/2bWmEc4 (surveying HFC regulations and policies). 287 UNEP Ozone Secretariat, 37th OEWG, Briefing Note on Legal Aspects in the context of HFC Management under the Montreal Protocol, Geneva, Switzerland, 4–8 April 2016, available at: http://bit. ly/2bGYoZC. 288 UNEP, Summary of the HFC amendment proposals submitted by Canada, Mexico and the United States (North American proposal), India (Indian proposal), the European Union and its Member States (European Union proposal) and some island States (Island States proposal), see: http://bit.ly/2bp9RiA. 289 C. Davenport, ‘A Sequel to the Paris Climate Accord Takes Shape in Vienna’ New York Times, 23 July 2016, available at: http://nyti.ms/2bZ02DE. 290 Ibid. 291 International Energy Agency, IEA Statistics Highlights: CO2 Emissions from Fuel Combustion, 2015 Edition (Paris: OECD/IEA, 2015), available at: http://bit.ly/2bPz4Rs. 292 Ibid., at 11 (noting that aviation and shipping emissions rose even faster than road emissions from 1990–2013). 293 [EU] Council Directive 2008/101, O.J. (L 8), 13.1.2009, 3–21 (amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community); see also [US] EPA, ‘Finding That Greenhouse Gas Emissions From Aircraft Cause or Contribute to Air Pollution That May Reasonably Be Anticipated To Endanger Public Health and Welfare’, 81 Fed. Reg. 54422 (15 August 2016) (concluding that aircraft emissions require regulation); Memorandum in Support of Defendant’s [EPA’s] Motion to Dismiss, Center for Biological Diversity v

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574 justin gundlach and michael b. gerrard in that direction. The ICAO announced aspirational goals for emissions reductions in 2010,294 and then struck a deal with the EU in 2012 to develop emissions regulations in return for suspension of the EU’s application of its ETS to international aircraft emissions.295 The ICAO issued the current draft of those regulations in February 2016;296 it would impose emissions limits on new aircraft and cap aircraft emissions generally at 2020 levels—but allow for compliance via offsets.297 For its part, the IMO issued mandatory efficiency requirements in 2010, and will phase in the Energy Efficiency Design Index to implement those requirements between 2013 and 2025.298 Assuming the ICAO adopts its proposed emissions cap, maritime shipping would be the sole emissions source category not subject to GHG emissions limits. Given the ease with which ships can seek a flag of convenience and thereby avoid national regulations, this is perhaps not surprising.

25.5 Evaluation The brief analytical discussion in this section takes note of the effectiveness (and limits) of particular policy techniques. It also notes an example of policies imitated across jurisdictions and discusses opportunities and limits for such imitation.

25.5.1 Effectiveness 25.5.1.1 Performance of Energy Efficiency Measures Energy conservation and efficiency programmes that combine performance standards and labeling requirements have generally been effective.299 This is true for equipment and EPA, Case 1:16-cv-00681-ABJ (19 August 2016) (arguing that EPA has not unreasonably delayed issuance of regulations on GHG emissions from aircraft). 294 International Civil Aviation Organization, Consolidated Statement of Continuing ICAO Policies and Practices Related to Environmental Protection- Climate Change (Montreal, Canada: ICAO, 2010). 295 F. Pearce, ‘After Paris, A Move to Rein In Emissions by Ships and Planes’ envrinment360, 19 May 2016, available at: http://bit.ly/1rX4ytr. 296 ICAO, Press Release: New ICAO Aircraft CO2 Standard One Step Closer to Final Adoption, 8 February 2016, available at: http://bit.ly/1O0hnGe. 297 ICAO, Draft Assembly Resolution Text on a Global Market-Based Measure (GMBM) Scheme, 2016, para. 4, available at: http://bit.ly/1S6zorq (‘Decides to implement a GMBM scheme in the form of the Carbon Offsetting Scheme for International Aviation (COSIA) to address any annual increase in total CO2 emissions from international aviation (i.e. flights that depart in one country and arrive in a different country) above the 2020 levels, taking into account special circumstances and respective capabilities; {GMBM is Carbon Offsetting Scheme for International Aviation (COSIA)}.’) 298 IMO, Mandatory energy efficiency measures for international shipping adopted at IMO environment meeting Marine Environment Protection Committee (MEPC)—62nd session: 11–15 July 2011; Resolution MEPC.203(62), Amendments to the Annex of the Protocol of 1997 to Amend the International Convention for the Prevention of Pollution from Ships, 1973, as Modified by the Protocol of 1978 Relating Thereto, Adopted on 15 July 2011, MEPC 62/24/Add.1 Annex 19. 299 P. S. Mallaburn and N. Eyre, N., ‘Lessons from Energy Efficiency Policy and Programmes in the UK from 1973 to 2013’ (2014) 7 Energy Efficiency 23–41; H. Geller et al., ‘Polices for Increasing Energy Efficiency: Thirty Years of Experience in OECD Countries’ (2006) 34 Energy Policy 556–73.

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climate change and energy transition policies 575 appliances, as well as for buildings. Of course, quality matters to the success of EE-promoting policies, as does the targeting of interventions.300 Another caveat to EE’s effectiveness is the ‘rebound effect’ or just ‘rebound’, which the UK Department of Energy and Climate Change has also referred to as ‘comfort taking’.301 Rebound is the increase in energy consumption that follows a reduction in the marginal cost of a particular energy service as a result of EE improvement; economists continue to debate how frequently and to what degree rebound follows EE improvements.302 Policy measures have only begun to address rebound, and their effectiveness—like that of EE policies—depends on how well they have been shaped to the circumstances in which they intervene.303

25.5.1.2 The Role of Circumstance Some successes owe a great deal to circumstance. The Regional Greenhouse Gas Initiative (RGGI) and Germany’s feed-in-tariff for rooftop solar are both examples of policies that succeeded in their principal aims in no small part because they benefited from fortuitous timing and circumstances. In the case of RGGI, making GHG intensity costly coincided with clear reductions in GHG emissions. This owed in part to the timing of the Great Recession, which reduced economic activity and emissions levels, and in part to displacement of demand for electricity away from coal-fired plants located in RGGI-states’ borders to natural gas plants located just outside those borders.304 That displacement led to a significant reduction of aggregate emissions from RGGI states, but would not have done so had several years of low natural gas prices not led to the construction of new, efficient natural gas plants in adjacent states.305 The success of Germany’s feed-in-tariff at spurring renewables development similarly relied on coincident circumstances outside Germany’s borders: as described in section 25.3.2.2.3, German grid operators were able to take advantage of their relationships with grid operators and fossil-fuelled facilities in Poland and the Czech Republic to deal with the hard-to-predict variability of electricity generated by its new wind and solar resources. Without access to neighbours willing to accommodate (or unable to prevent) sudden changes in grid balance, the net benefits of Germany’s renewables programme would have appeared lower. 300 K. Gillingham and K. Palmer, ‘Bridging the Energy Efficiency Gap: Policy Insights from Economic Theory and Empirical Evidence’ (2014) 8 Review of Environmental Economics and Policy 18–38; L. W. Davis and G. E. Metcalf, Does Better Information Lead to Better Choices? Evidence from Energy Efficiency Labels (Cambridge M.A.: National Bureau of Economic Research, November 2014). 301 [UK] Department of Energy and Climate Change, The Energy Efficiency Strategy: The Energy Efficiency Opportunity in the UK (London: Department of Energy and Climate Change, 2012), 9–12. 302 K. Gillingham et al., ‘The Rebound Effect and Energy Efficiency Policy’ (2016) 10 Review of Environmental Economics and Policy 66–88 (cautioning against overestimates of rebound); J. Linn, The Rebound Effect for Passenger Vehicles (Washington D.C.: Resources for the Future, 2013) (arguing that rebound is significant for passenger vehicles). 303 D. F. Vivanco et al., ‘How to Deal with the Rebound Effect? A Policy-oriented Approach’ (2016) 94 Energy Policy 114–25, at 123. 304 H. Fell and P. Manilof, Beneficial Leakage: The Effect of the Regional Greenhouse Gas Initiative on Aggregate Emissions (Golden, Colorado: Colorado School of Mines, June 2015), available at: http://bit. ly/2bwQ1ym. 305 Ibid; see also B. C. Murray et al., Why Have Greenhouse Gas Emissions in RGGI States Declined? An Econometric Attribution to Economic, Energy Market, and Policy Factors (Duke Environmental and Energy Economics Working Paper Series, No. EE 14–01, May 2014).

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25.5.1.3 Replacing Coal is Not the Same as Decarbonizing The shuttering of coal-fired power plants eliminates a key source of GHG emissions, but the replacement of those power plants with gas-fired ones has the potential to ‘lock in’ substantial future GHG emissions by creating new plants with a thirty- to fifty-year useful life as well as the import/export terminals, pipelines, and compressors needed to transport natural gas to those plants. The United States is the leading example—but not the only one306—of a jurisdiction that will achieve substantial GHG reductions by weaning off of coal while simultaneously committing itself to natural gas. As the Deep Decarbonization Pathways Project has pointed out, and as EU ‘carbon capture ready’ requirements for new gas plants reflect, this risk can be addressed by (i) mandating that all new natural gas facilities be married to a carbon capture and sequestration or utilization facility, and (ii) developing the technologies required to economically capture and sequester or utilize carbon. Until such mandates are firm and such technologies readily available, however, natural gas cannot be considered a certain improvement over coal, and mere reduction in coal usage cannot be considered an unequivocally effective energy transition policy goal.

25.5.2 Transferability of Techniques A policy implemented successfully in one legal and institutional context cannot simply be transplanted to another, but it can be imitated. Efforts to encourage drivers to buy EVs (whether battery-powered or plug-in hybrids) instead of petroleum-fuelled vehicles powered by internal combustion engines provide an especially good example of this point. Such efforts face the same trio of basic problems everywhere: high direct costs, inconvenience, and ‘range anxiety’ owing to sparse or absent charging infrastructure, and long charging times even where charging points are available. These problems are all rooted in the fact that vehicles and their supporting infrastructure are subject to strong network externalities, meaning that until critical masses of both EVs and charging stations accumulate, the costs of owning an EV will be relatively high. Jurisdictions have taken varied approaches to these problems: the Netherlands, for instance, has created strong incentives for corporate buyers to add EVs to their fleets; Norway has made the installation of charging stations a public priority (which is feasible in a small, wealthy country where hydropower generating capacity can quickly scale up to handle additional electricity load); and Germany has developed demonstration regions to work out the kinks of EV infrastructure deployment rather than—or possibly before—undertaking a subsidized nationwide rollout.307 Jurisdictions have also paid attention to each other’s approaches and outcomes. British Columbia recently commissioned a study of what had worked so well in Norway.308 That study highlighted key programmatic features but also 306 See Wood Mackenzie, Coal-to-gas Switching in Europe—What’s the Potential for Increased Gas Demand? (January 2016) (identifying fuel-switching in the EU as likely response to combination of low natural gas prices and GHG emissions prices made directly or indirectly higher through regulation). 307 U. Tietge et al., Electric Vehicle Policy and Deployment in Europe (Berlin: ICCT, May 2016), 63, 65, available at: http://bit.ly/2cRKW6w. 308 See e.g. L. Phillips, Norway’s Electric Vehicle Revolution: Lessons for British Columbia (Pacific Institute for Climate Solutions, October 2015), available at: http://bit.ly/1OWUPf0.

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climate change and energy transition policies 577 pointed out that British Columbia simply could not imitate some of them, such as adjustments to national tax policy.309 Differences between jurisdictions’ approaches tend to reflect their particular circumstances and constraints rather than disparate theories of what works. California’s recent decision to restrict its subsidies for EV buyers did not result from the California Air Resources Board concluding that Yang et al. (2016) was wrong to list ‘durability’ among the characteristics of more successful policy.310 Rather, those subsidies flow from revenues gathered through California’s cap-and-trade scheme, and negotiating for the political survival of the capand-trade scheme and of California climate policy generally, resulted in a jostling the existing EV scheme.311

25.6 Concluding Remarks Efforts to address climate change through regulation and other policy measures are deeply and variously entwined with efforts to effectuate an energy transition away from fossil fuels. This chapter has sketched a rough map of both categories, highlighting the roles played by actors at different levels and in different segments of government, and identifying the tools and approaches those actors are employing. That map necessarily offers only superficial treatment of these efforts, which tend to be complex in their formulation and still more complex in their implementation. This chapter’s brief analytic observations about particular policy tools highlight the inescapable relevance of legal, institutional, and geographic circumstances to policy outcomes.

25.7 Select Bibliography M. B. Gerrard and J. Dernbach (eds.), Legal Pathways to Deep Decarbonization in the United States (ELI Press forthcoming 2018). Publications of the Deep Decarbonization Pathways Project, including Synthesis Reports and 15 Country Reports, available at: http://deepdecarbonization.org/ddpp-reports/. Burger, M. and J. Gundlach, The Status of Climate Change Litigation: A Global Review (New York: UN Environment, 2017). Nachmany, M. et al., The 2015 Global Climate Legislation Study: A Review of Climate Change Legislation in 99 Countries (London: London School of Economics, 2015). Harrison, K., ‘The Political Economy of British Columbia’s Carbon Tax’, OECD Environment Working Papers (Paris: OECD Publishing, 2013). The Law of Clean Energy: Efficiency and Renewables (Gerrard, M. B. ed., American Bar Association, 2011). World Bank, Carbon Tax Guide: A Handbook for Policy Makers (Washington D.C.: World Bank 2017).

309 Ibid., at 4–5. 310 Z. Yang et al., Principles for Effective Electric Vehicle Incentive Design (Washington D.C.: International Council on Clean Transportation, June 2016), iv, available at: http://bit.ly/2cFB64l. 311 M. Mason and L. Dillon, ‘Gov. Jerry Brown, state lawmakers reach last-minute deal on spending cap-and-trade revenues’ L.A. Times, 31 August 2016, available at: http://lat.ms/2bKBDCd.

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R egu l ation of Ch emica l s Lucas Bergkamp and Adam Abelkop

26.1 Overview

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26.2 Basic Concepts

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26.3 General Components of Chemicals Regulation

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26.4 Comparative Chemicals Regulation

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26.2.1 What is Chemicals Regulation? 26.2.2 Hazard and Risk 26.2.3 Data 26.3.1 Introduction 26.3.2 Identification 26.3.3 Prioritization 26.3.4 Risk Assessment 26.3.5 Risk Management 26.3.5.1 Introduction 26.3.5.2 Information Tools 26.3.5.3 Prescriptive Tools 26.3.5.4 Liability Entitlements

26.4.1 European Union: REACH Regulation 26.4.1.1 Introduction 26.4.1.2 Registration 26.4.1.3 Evaluation 26.4.1.4 Authorization 26.4.1.5 Restriction 26.4.2 United States: Amended TSCA 26.4.2.1 Introduction 26.4.2.2 Inventory Reset: TSCA § 8 26.4.2.3 Prioritization, Evaluation, and Management of Active Chemicals: TSCA § 6

580 581 582 584 584 586 587 589 589 589 591 593

594 594 594 596 596 598 598 598 600 600

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regulation of chemicals 579 26.4.2.4 New Chemicals and Significant New Uses: TSCA § 5 26.4.2.5 Information Gathering: TSCA § 4

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26.5 Concluding Remarks

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26.6 Acknowledgements

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26.7 Select Bibliography

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26.1 Overview Everything in the physical world is made of chemical substances, including the air we breathe, the water we drink, and even ourselves. They are truly ubiquitous. Chemical substances can be solid, liquid, or gaseous. They can be extracted from the environment or synthesized. They are mined, produced, transported, used, and discarded throughout every stage of economic commerce, by actors ranging from nations and multinational corporations to individuals. Chemicals in bulk (either pure substances or mixtures of various substances) can be used as intermediaries to produce another chemical, within products (e.g. as dye in clothing, flame-retardants in furniture, and food additives), and as products themselves (e.g. fertilizer, cosmetics, paint, soap, and even water). Chemicals are also generated as waste byproduct to be discarded. Most chemicals are considered safe enough to use, but the concept of safety is, of course, relative. Some chemicals are hazardous to people and ecosystems at low levels of exposure.1 Incidents involving these chemicals have drawn widespread public attention since the inception of the environmental movement to present day, from dichlorodiphenyltrichloroethane (DDT), discussed at length in Rachel Carson’s 1962 Silent Spring, or the ‘Minamata disease’ due to mercury discharges in Japan, to the soil contamination with polychlorinated biphenyls (PCBs) that kick-started the environmental justice movement in Warren County, North Carolina in 1983, or the contemporary case of lead contamination of the Flint River in Michigan. It is thus no surprise that chemical substances are now the subject of extensive regulation over their entire lifecycle, from extraction and production to disposal. Chemicals have been subject to regulation for decades. Since the early 2000s, however, due to advances in science and increasing public awareness and concern over chemical 1 e.g. of the approximately 16,000 registered substances under the European Union (EU) Regulation on the Registration, Evaluation, and Authorization of Chemicals (REACH) Regulation, proposals have been submitted to identify 203 as substances of very high concern (SVHCs), 174 have been added to the Candidate List as SVHCs, and forty-three have been added to the Authorization List, requiring stringent risk management. See ECHA, Registered Substances, https://echa.europa.eu/information-on-chemicals/ registered-substances; ECHA, Pre-Registered Substances, https://echa.europa.eu/information-onchemicals/pre-registered-substances; EHCA, EC Inventory, https://echa.europa.eu/information-onchemicals/ec-inventory; ECHA, Candidate List, https://echa.europa.eu/candidate-list-table; ECHA, Authorization List, https://echa.europa.eu/addressing-chemicals-of-concern/authorisation/recommendation-for-inclusion-in-the-authorisation-list/authorisation-list

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580 lucas bergkamp and adam abelkop exposures, governments, interest organizations, consumers, and companies throughout the supply chain have refocused on chemicals regulation. New international, national, and local regulatory programmes have been adopted in the EU, China, Japan, South Korea, Brazil, Canada, and recently the United States. Retailers including Wal-Mart have initiated risk management programmes. Trade associations and companies engaged in the chemicals marketplace have developed voluntary risk reduction programmes. Navigating this mix of policies is a difficult task. This chapter is intended to provide a brief introduction to the area of chemicals regulation— to define the area and identify commonalities and differences in regulatory approaches. We explain the field of chemicals regulation in three sections. Section 26.2 will succinctly discuss the key concepts that underlie chemicals regulation. We begin by addressing the question, ‘what is chemicals regulation?’ and proceed to explain policy principles, informational inputs, and how chemicals are identified. Section 26.3 walks the reader through the general components of chemicals regulation: screening and prioritization, risk assessment and decision analysis, and risk management approaches. The section concludes with discussions on regulatory fragmentation, risk management through the supply chain, and the complementary roles of regulation and liability systems. Section 26.4 explains how these concepts are administered in practice in two major jurisdictions: the EU Registration, Evaluation, Authorization, and Restriction (REACH) of Chemicals Regulation and the US Toxic Substances Control Act (TSCA) as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (LCSA).

26.2 Basic Concepts 26.2.1 What is Chemicals Regulation? If everything around us is chemicals, then what part of environmental law is not chemicals regulation? In a sense, grand pollution control laws governing water and air pollution can be characterized as chemicals regulation. After all, emissions and effluents are in fact streams of chemicals. While these pollution control laws tend to focus on a particular medium, and waste laws focus on end-of-life fate, the focus of this chapter—what we and others refer to as chemicals regulation—is on laws and policies that regulate chemicals as chemicals rather than as emissions, effluents, or waste.2 That is, these laws target the production and distribution processes of particular substances or groups of substances throughout the chain of commerce while they are under human control and before they are emitted or become waste. This area of law is characterized by fragmentation. There are many laws, enacted at various levels of government, which differ in regulatory approach and scope, often limited to certain types of chemicals. For example, cosmetics, pesticides, fertilizers, food additives, and pharmaceuticals are each regulated by particular laws that are intended to address the specific risks associated with those uses. These laws fall squarely within the realm of chemicals 2 J. S. Applegate, ‘Synthesizing TSCA and REACH: Practical Principles for Chemical Regulation Reform’ (2008) 35 Ecology Law Quarterly 721.

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regulation of chemicals 581 regulation, and many of the insights of this chapter may apply to those regulatory regimes. Our focus, however, is a bit broader, on more general laws that target what are commonly referred to as ‘industrial chemicals’—those substances used in industrial processes and in consumer products. Regulatory inventories around the world list over 100,000 substances. Estimates suggest that about 30,000 chemicals are produced at a quantity of at least one metric tonne per year. About 8,000 are produced in a quantity greater than eleven tonnes per year.3 Chemicals regulations are aimed at preventing and managing environmental and human health risks associated with chemical substances. To that end, chemicals are subjected to a wide range of policy instruments, including data generation and submission requirements, public warnings, market-based instruments like taxes, and prescriptive command-and-control instruments such as use limitations and complete bans, to name a few. These policies attempt to mitigate potential impacts over the life cycle of chemicals by application to targets throughout the chain of commerce, from occupational health regulation at industrial facilities to consumer protection regulation of products. To begin to understand this mix of laws, we start by introducing the concepts of risk, hazard, and exposure.

26.2.2 Hazard and Risk As chemicals regulations apply to substances irrespective of their presence in particular media, these regimes place a heavy emphasis on the intrinsic properties of substances, including the hazards they pose. A hazard is any adverse impact that a chemical can cause. Two main categories of chemical hazards are physical-chemical hazards and toxicity/ ecotoxicity. Physical-chemical hazards include flammability and corrosiveness. Chemicals can have a variety of toxic effects, acute and chronic. Chronic toxic effects of particular concern include carcinogenicity, mutagenicity, and reproductive toxicity, together referred to as CMR. Recently, scientists and regulators have been investigating endocrine-disrupting chemicals (EDCs), which interact with the hormonal system, as a characteristic of concern.4 Other intrinsic properties of interest include the half-life of a chemical or the rate at which it may persist (P) in the environment and whether or not the chemical bioaccumulates (B) in tissues of organisms rather than being excreted from the body. Chemicals that measure

3 For estimates of the number of chemicals in commerce, see P. P. Egeghy et. al., ‘The Exposure Data Landscape For Manufactured Chemicals’ 414 Science of the Total Environment 159, at 159–60; D. C.G. Muir and P. H. Howard, ‘Are There Other Persistent Organic Pollutants? A Challenge for Environmental Chemists’ (2006) 40 Environmental Science & Technology 7157, at 7158; US Government Accountability Office, GAO-13-249, ‘Toxic Substances: EPA Has Increased Efforts to Assess and Control Chemicals but Could Strengthen its Approach’ (2013) 10 n.12. 4 See Å. Bergman et al., ‘The Impact of Endocrine Disruption: A Consensus Statement on the State of the Science’ (2013) 121 Environmental Health Perspectives A104; N. A. Ashford and C. S. Miller, ‘LowLevel Chemical Exposures: A Challenge for Science and Policy’ (1998) 32 Environmental Science & Technology 508A; F. S. vom Saal and J. Peterson Myers, ‘Bisphenol A and Risk of Metabolic Disorders’ (2008) 300 Journal of the American Medical Association 1353; L. N. Vandenberg et al., ‘Hormones and Endocrine-Disrupting Chemicals: Low-Dose Effects and Nonmonotonic Dose Responses’ (2012) 33 Endocrine Review 378.

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582 lucas bergkamp and adam abelkop as very persistent and very bioaccumulative are denoted vPvB. Chemicals that have these properties as well as toxic (T) effects are called PBTs. These non-exclusive categories of chemicals—CMR, EDC, vPvB, PBT—are based in science, but are somewhat artificial constructs, designed to focus assessment and decisionmaking efforts on the chemicals of highest concern.5 Regulatory decision-making that is based only the intrinsic characteristics of a chemical is informally referred to as ‘hazardbased’ decision-making. In one way or another, though, many substances can cause toxic effects: ‘the dose makes the poison’.6 That is, the dose over a certain period of time, or exposure level, to a substance often determines whether or not it will cause a toxic effect and how severe the effect be. Determining the potential for exposure to a chemical is important for regulatory decision-making. Factors that influence exposure level include many non-intrinsic features like production quantity over time and how the chemical or the product in which it is present, is used, transported, stored, and discarded. Some intrinsic characteristics like persistence and bioaccumulation may also influence the exposure level. People and animals come into contact with chemicals via inhalation, ingestion, dermal/mucosal contact, etc. through pathways like drinking water, ambient and indoor air, food, medicine, application of personal care products, and so on. Regulatory decision-making that is based on non-intrinsic exposure factors as well as hazards is generally referred to as ‘risk-based’ decision-making. Risk is often envisioned as a function of hazard and exposure. The hazard/risk distinction is critically important to modern chemicals regulatory programs. Informally, decision-making on chemicals in the United States is sometimes viewed as more risk-based while European decision-making is viewed as more hazard-based.7 In design and practice, however, regulatory regimes across the world, including REACH and TSCA, rely on a mix of hazard- and risk-based decisions. Chemicals are often classified and labelled based on the hazard they may pose. Other regulatory interventions, such as restrictions on the manufacture and use of a substance, are often risk-driven, and intend to manage exposure to a hazardous substance. In some instances, however, regulatory measures might be based on hazard, regardless of the potential for exposure.

26.2.3 Data To identify chemicals and pathways that present risk, regulations require that data be collected and analysed on all of the factors mentioned above and more. If the available data are insufficient for decision-making or regulatory requirements, testing for physico-chemical or toxicological properties may be required. Such testing may involve in vivo animal testing 5 A. D.K. Abelkop, J. D. Graham, and T. R. Royer. Persistent, Bioaccumulative, and Toxic (PBT) Chemicals: Technical Aspects, Policies, and Practices (Boca Raton: CRC Press, 2016). 6 J. S. Applegate et al., The Regulation of Toxic Substances and Hazardous Wastes: Cases and Materials (New York: Foundation Press, 2nd edn. 2011), at 4. 7 e.g. O. Renn and E. D. Elliott, ‘Chemicals’ in J. B. Wiener et al. (eds.), The Reality of Precaution: Comparing Risk Regulation in the United States and Europe (Washington D.C.: RFF Press, 2011), at 223, 231–2.

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regulation of chemicals 583 or alternatives such as in vitro methods, read-across between similarly structured chemicals, quantitative structure activity relationships, and computer modelling. Many nations have stringent animal testing regulations. In particular, to protect laboratory animals, REACH requires the consideration of alternatives in lieu of animal tests. For decades, experts have raised concern over a staggering ‘data gap’ in what is known about the chemicals in commercial distribution across the world.8 As noted previously, no one knows precisely how many chemicals are actually in commercial circulation. For the vast majority of known existing chemicals, even basic public information on toxicology is extremely limited if not lacking altogether.9 Even less is known about the potential for exposure to these substances.10 Businesses also constantly generate new substances, for which information is not adequately available. In addition to knowing basic intrinsic characteristics and traditional exposure pathways, recent attention has been drawn to how exposures might affect certain populations (e.g. children and pregnant women) more severely than others and also whether and how chemicals interact with one another in the environment and in our bodies to magnify risk. While testing for physical-chemical hazards is generally not overly complicated, generating even basic toxicity data on chemicals is expensive. Animal studies for acute and chronic toxicity, carcinogenicity, and reproductive toxicity can involve costs running into the millions. This cost may be incurred by a single company if the substance is ‘new’ or if an existing substance with a data gap is marketed by only one company. Once the data have been generated and submitted to public authorities, other companies could potentially free ride on the efforts. The law therefore assigns intellectual property, called ‘data exclusivity,’ rights to the company that first submitted the data (which often is also the study owner). If other companies want to use (refer to) these data for their own regulatory filings, they have to obtain the owner’s permission. To obtain such permission, they may well have to reimburse part of the cost incurred by the owner. The high cost of data is primarily responsible not only for the general gap in risk information available to authorities and researchers, but it also contributes to information asymmetries between the private and public sectors and between large and small businesses. Regulatory regimes around the world struggle with apportioning the cost of generating new information and how to facilitate information sharing from business to government, business to business, and government to government. In the sections that follow, we discuss the general components present in most chemical regulatory systems around the world, and then specifically how the regulation of industrial chemicals is structured in the EU and United States.

8 Environmental Defense Fund, ‘Toxic Ignorance: The Continuing Absence of Basic Health Testing for Top-Selling Chemicals in the United States’ (1997), available at: http://www.edf.org/sites/default/ files/243_toxicignorance_0.pdf; National Research Council, ‘Toxicity Testing: Strategies to Determine Needs and Priorities’ (1984) 19; Chemical Manufacturers Association, ‘Public Availability of SIDSRelated Testing Data for U.S. High Production Volume Chemicals’ (1998); J. S. Applegate, ‘Bridging the Data Gap: Balancing the Supply and Demand for Chemical Information’ (2008) 86 Texas Law Review 1365, at 1380–3. 9 R. Judson et al., ‘The Toxicity Data Landscape for Environmental Chemicals’ (2009) 117 Environmental Health Perspectives 685. 10 Egeghy et al., ‘The Exposure Data Landscape for Manufactured Chemicals’.

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26.3 General Components of Chemicals Regulation 26.3.1 Introduction Economists often justify public intervention in the marketplace by identifying market failures and policy instruments to correct those failures. In the context of chemicals regulation, market failures include harm to humans and the environment from exposure to one or more substances, which constitutes a negative externality if the social cost of harm is not reflected in the price of the chemical; a lack of information on a chemical’s hazard, potential for exposure, or socio-economic benefits; and one or more information asymmetries, for example, between various businesses in the supply chain (e.g. chemical and product manufacturers), businesses and government, businesses and consumers, and between governmental authorities.11 Each type of market failure may justify a different policy intervention. Thus, a complex mix of public policy instruments is often necessary to address the presence of multiple simultaneous market failures. Additionally, trade groups and businesses themselves throughout the supply chain do a tremendous amount of work through all manner of voluntary risk management programs, including voluntary information gathering, labelling, certification, pollution prevention, and risk assessment. The focus of this chapter is on public regulatory interventions. But this focus should not detract from the work that the businesses, trade associations, and public interest nonprofits active in this area do to keep us safe. A novel way in which they attempt to do so is via substitution of hazardous substances by less or non-hazardous substances through ‘green chemistry’ programmes. Understanding the mix of market failures at play here can help us to understand the complexity of public policy interventions. Though the formal processes of regulatory regimes in the United States, Europe, and elsewhere can be quite different, each system exhibits common characteristics: there is a method for identifying a chemical substance, prioritizing substances for evaluation, conducting some form of risk assessment, and applying one or more risk management tools, if necessary. The following sections explain these common aspects of chemical risk laws, and the subsequent section explains how they fit into the EU and US frameworks.

26.3.2 Identification To regulate a chemical, it must first be identified. To those unfamiliar with this area of law, chemical identification should not be taken for granted. Defining and identifying chemical entities presents significant challenges. At an international level, the Chemical Abstract 11 A. D. K. Abelkop and J. D. Graham, ‘Principles and Tools of Chemical Regulation: A Comment on “The Substitution Principle in Chemical Regulation: A Constructive Critique” ’ (2014) 17 Journal of Risk Research 581, at 584.

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regulation of chemicals 585 Service (CAS) Registry has harmonized the rules for chemical substance identification.12 The basic units in chemistry are atoms, molecules, and their configurations in space. For purposes of regulation, chemicals are divided into several categories. The two main categories are ‘substances’, which are generally one particular molecule, and ‘preparations’ or ‘mixtures,’ which contain two or more substances.13 If two substances react, they form a new substance or substances that did not exist before (synthesis); if substances that are brought together do not react, they form a mixture. Several additional categories of substances receive differential treatment under chemicals regulations. For example, some substances that result from a particular chemical reaction or extraction/isolation procedure, but, in fact, are mixtures are known as Unknown or Variable Composition and Biologics (UVCBs). ‘Intermediates’ are substances that are manufactured for or consumed in chemical processing to be transformed into another substance. Because they are not released to the environment or consumers as a general matter of use, they are subject to specific, often more lenient, requirements.14 Polymers, which are used to make plastics and a wide variety of other products, are generally believed not to pose any significant toxicological risk and therefore also tend to be unregulated or exempted—the issue of ‘microplastics’, however, may cause regulators to revisit the regulatory treatment of polymers. Although chemical regulations initially focused almost exclusively on chemicals in bulk, more recent chemical regulations often address chemicals in ‘articles’. An article is typically defined broadly as a solid product. The point at which a substance or mixture becomes an article is defined with reference to the its physical properties becoming more important than its chemical composition.15 Chemical regulations generally impose obligations on processors and manufacturers, but can apply to the entire chain of commerce, including importers/exporters, transporters, and users of chemicals (which are also referred to as ‘downstream users’). A business can fall into one or more categories depending on how the statute in question defines its targets. The differences between substances, mixtures, and articles can determine whether a business has a regulatory obligation or not. The manufacturer of a substance is not identical to the manufacturer of a mixture, which is not identical to the manufacturer of an article. Some examples can illustrate how this distinction is applied in practice. A toner cartridge is an article (the cartridge) containing a mixture (the toner). The toner may be regulated separately from the article. A rubber tyre, on the other hand, is an article incorporating chemical substances. In this case, however, the substances are typically not regulated as substances separate from the article. Articles containing many substances and mixtures, like automobiles and electronics, can raise complicated questions as to the legal obligations on the companies involved in the manufacture and trade of the articles and substances that go into their production. As noted above, the actual number of unique chemical substances in commerce is unknown. Regulatory inventories around the world have identified over 100,000 unique chemical substances. The US TSCA Inventory lists about 85,000 substances.16 Chemicals regulations target individual substances, mixtures, or groups of similar chemicals for 12 Chemical Abstract Service, available at: https://www.cas.org/. 13 TSCA § 3(2), (10). 14 Article 3(15) REACH. 15 Article 3(3) REACH. 16 EPA, ‘TSCA Chemical Substance Inventory, About the TSCA Chemical Substance Inventory’, available at: https://www.epa.gov/tsca-inventory/about-tsca-chemical-substance-inventory.

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586 lucas bergkamp and adam abelkop assessment and management. However, the chemical-by-chemical assessment and management process is onerous, and regulatory resources, including time, expertise, money, infrastructure, and so on, are limited. Therefore, once chemicals are identified, regulations generally begin with a process of screening or prioritization to focus on those substances that are believed to present the most (and sometimes the least) risk.

26.3.3 Prioritization Prioritization refers to methods used by regulatory authorities and stakeholders to narrow the scope of their assessment and risk management decisions.17 Most prioritization schemes allow for authorities to employ screening, or tiered assessment techniques based on existing information, to identify high and low priority chemicals. Prioritization is generally done on the basis of available information on hazard and exposure, including whether a chemical exhibits CMR or PBT properties, is produced in high volumes, used in widely dispersive ways, or may be exposed to a particularly susceptible subpopulation.18 Regulations provide for authorities to screen existing chemicals for these characteristics, and tools exist for businesses to screen for chemicals for these characteristics as well. Practice demonstrates the vitality of a prioritization scheme to a chemicals regulation system. REACH was enacted in 2007 without a clear plan for how European authorities would prioritize substances for assessment and management, adding additional uncertainty to an already complicated process. For the regulation to function, authorities had to develop a method as REACH matured.19 On the other hand, Canada’s Chemicals Management Plan, initiated around the same time, began with a relatively straightforward process to identify priority chemicals—those that seemed to present both the highest and the lowest risk—for further assessment. Officials from Environment and Health Canada in a tiered screening process cooperated to identify 4,300 chemicals from an initial list of 23,000 using the factors listed in the preceding paragraph. Authorities then applied additional screening level risk assessment to the priority chemicals to determine whether additional evaluation and management are necessary. Canadian authorities are on track to have assessed all 4,300 chemicals by 2020.20 The LCSA statute also incorporated a prioritization process into the US chemical regulatory framework under TSCA § 6, which is now underway.

17 See A. D.K. Abelkop and J. D. Graham, ‘Regulation of Chemical Risks: Lessons for Reform of the Toxic Substances Control Act from Canada and the European Union’ (2015) 32 Pace Environmental Law Review 108. 18 e.g. TSCA § 6(b); Art. 58 REACH. 19 N. Herbatschek et al., ‘The REACH Programmes and Procedures’ in L. Bergkamp (ed.), The European Union REACH Regulation for Chemicals: Law and Practice (Oxford; Oxford University Press, 2013), 152–4; European Commission, ‘Roadmap on Substances of Very High Concern’ (2013), available at: https://www.reach-clp-biozid-helpdesk.de/de/Downloads/REACH/Europ%C3%A4ische%20 Kommission_SVHC%20Roadmap%20to%202020.pdf?__blob=publicationFile&v=1; European Chemicals Agency, ‘SVHC Roadmap to 2020 Implementation Plan’ (2013), available at: https://echa.europa.eu/ documents/10162/19126370/svhc_roadmap_implementation_plan_en.pdf. 20 For a review of the CMP and REACH prioritization processes, see Abelkop and Graham, ‘Regulation of Chemical Risks’. Updated information on the Chemicals Management Plan is available at: https://www. canada.ca/en/health-canada/services/chemical-substances/chemicals-management-plan.html.

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regulation of chemicals 587

26.3.4 Risk Assessment Chemical risk assessment is the science-based evaluation of adverse effects on human health and the environment caused by exposure to chemical substances.21 Though risk assessment is an incredibly complex method,22 it includes four main steps: (1) Hazard identification of the human health and environmental effects associated with a chemical exposure, including whether the chemical is a CMR, vPvB, PBT, and/or EDC. (2) Hazard characterization involves the qualitative and/or quantitative evaluation of the nature of the adverse effects associated with the chemical substance. This evaluation generally includes a dose-response assessment. Main sources of information used for hazard identification and characterization are the results of animal tests, which are deemed to be representative for human and ecological toxicological effects. (3) Exposure assessment involves a qualitative and/or quantitative evaluation of the potential and degree of environmental or human exposure to the chemical. This is often based on a combination of empirical data and expert judgement. (4) Risk characterization integrates hazard identification, hazard characterization, and exposure assessment to estimate the adverse effects likely to occur in a given scenario, including attendant uncertainties. Here too, in addition to animal test data, empirical data, including epidemiological data, are used. Risk assessment, while necessarily limited by the available data and their relevance/ representativeness, is at the heart of chemicals regulation. It is the basis upon which risk management decisions are made. Not all chemical risks, however, can or should be prevented. To identify those risks that should be regulated, decision tools, such as benefit-cost a nalysis, risk-benefit analysis, socio-economic analysis, risk-risk trade-off analysis, and alternatives assessments are often incorporated into regulatory decision-making. These tools are intended to ascertain which regulatory interventions provide effective and efficient risk reduction. In benefit-cost analysis, the costs and benefits of a particular chemical use are evaluated and compared to regulatory measures intended to reduce such costs. Costs are preferably, but not necessarily, expressed in quantitative, monetary terms. Socio-economic analysis is intended to determine whether the socio-economic benefits of a particular chemical use outweigh the risk to human health and the environment arising from that use. REACH, for example, incorporates socio-economic analysis as a potential method that 21 On risk assessment, see National Research Council, Risk Assessment in the Federal Government: Managing the Process (1983); C. J. van Leeuwen, ‘General Introduction’ in C. J. van Leeuwen and T. G. Vermeire (eds.), Risk Assessment of Chemicals: An Introduction (Dordrecht: Springer, 2nd edn. 2007); C. Campbell-Mohn and J. S. Applegate, ‘Learning from NEPA: Guidelines for Responsible Risk Regulation’ (1999) 23 Harvard Environmental Law Review 93, at 95–8. Textbooks on risk assessment include R. Wilson and E. A. C. Crouch, Risk-Benefit Analysis (Cambridge M.A.: Harvard University Press,2001), 113–21; D. J. Paustenbach (ed.), Human and Ecological Risk Assessment: Theory and Practice (New York: Wiley, 2nd edn. 2009). 22 See US Government Accountability Office, GAO-01-810, ‘Chemical Risk Assessment: Selected Federal Agencies’ Procedures, Assumptions, and Policies’ (2001), 120–50 (identifying over fifty analytic choices in the risk assessment process).

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588 lucas bergkamp and adam abelkop companies can use to obtain authorization to use an otherwise banned chemical for a particular high-value use. Historically, chemicals regulation has been plagued by so-called ‘regrettable substitutions’ in which a chemical use was identified as unsafe in a risk assessment, and the chemical was replaced in that use with another, also unsafe, chemical but which had not undergone assessment at that time.23 Recognizing this as a problem (‘the devil you know, the devil you don’t know’), many risk assessment programmes also now include some form of risk-risk and/or alternative assessment, which is intended to determine the availability, risks, costs, and benefits associated with alternative substances or technologies that may be deployed to replace the chemical to be regulated. For example, under California’s Safe Consumer Products programme, authorities identify chemicals of concern and priority products for assessment and potential management. Identified chemical-product pairs undergo alternative analysis to determine if there is a less risky chemical available for the particular use.24 Another way in which risk assessment has matured is to account for interactions with other chemicals. Traditionally, the effects of a chemical substance have been assessed chemical-by-chemical. Over the last decade, however, increasing attention has been paid to synergistic effects of two or more chemicals on human health and the environment. For instance, rather than assessing the reprotoxic effects of several chemicals separately, an integrated assessment can be made of the joint effect of chemicals on reproduction. This concept, however, is not reflected in current chemical regulatory regimes, and it has proven difficult to devise rules on synergistic effects. Finally, risk assessment can also account for particularly susceptible subpopulations, including children and pregnant women,25 and also historically disadvantaged groups that may be distributionally overburdened with chemical exposures relative to the rest of the population (e.g. racial minority and low socio-economic status communities).26 Historically, these considerations have been mostly absent from chemical assessment and management. Both REACH and TSCA now include ‘potentially exposed susceptible subpopulations’27 as a factor to consider in prioritization and risk evaluation, though it is too early to tell how inclusion of this factor will influence the evaluation and management process.

23 e.g. J. B. Zimmerman and P. T. Anastas, ‘Toward Substitution with No Regrets’ (2015) 347 Science 1198. 24 See California Department of Toxic Substances Control, Alternatives Analysis Guide, Version 1.0, June 2017, available at: http://www.dtsc.ca.gov/SCP/upload/AA-Guide-Version-1-0_June-2017.pdf. 25 See D. N. Scott (ed.), Our Chemical Selves: Gender, Toxics and Environmental Health (UBC Press, 2015); T. J. Woodruff, A. R. Zota, and J. M. Schwartz, ‘Environmental Chemicals in Pregnant Women in the US: NHANES 2003–2004’ (2011) 119 Environmental Health Perspectives 878. 26 For debate on environmental justice and risk assessment see C. H. Foreman, Jr., ‘Environmental Justice and Risk Assessment: The Uneasy Relationship’ (2000) 6 Human and Ecological Risk Assessment 549; B. D. Israel, ‘Note, An Environmental Justice Critique of Risk Assessment’ (1995) 3 New York University Environmental Law Journal 469; K. Sexton and S. H. Linder, ‘The Role of Cumulative Risk Assessment in Decisions about Environmental Justice’ (2010) 7 International Journal of Environmental Research and Public Health 4037. 27 tsca § 6(b)(4)(F).

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regulation of chemicals 589

26.3.5 Risk Management 26.3.5.1 Introduction The presence of multiple market failures had necessitated the application of a variety of policy types, referred to in the economics and public policy literature as policy ‘tools’ or ‘instruments’.28 Broad categories of policy tools include (but are not limited to) prescriptive regulation, also referred to as ‘command-and-control,’ market-based incentives, information tools, and property and liability entitlements. The market failures that chemicals regulations address, as noted previously, include a lack of information on chemical risks, information asymmetries, and negative externalities in the form of unaccounted-for harm to human health and the environment from exposure to chemicals. Even when regulation is called for, different risks call for different approaches depending on the exposure pathway, point of contact, type of hazard, nature of the supply chain, whether the chemical crosses borders, and so on. Industrial chemicals regulations do not generally include market-based incentives, which would include taxes, subsidies, and marketable allowances. Rather, chemicals regulations generally include a mix of information, prescriptive, and liability tools. The following sub-sections discuss those categories of interventions.

26.3.5.2 Information Tools Literature on environmental law and policy recognizes a wide variety of information-based policy tools that are aimed at generating and disseminating knowledge, including education, training, labelling, monitoring, reporting, certification, signalling, and so on. In the context of chemicals regulation, these include requirements for data generation, classification and labelling, and data sharing. Data generation requirements may include anything from testing for certain toxicological endpoints on hazard to full risk assessment or alternatives analysis.29 Informational requirements are determined by a tiered process whereby certain characteristics trigger additional informational, and possibly prescriptive regulatory, requirements. Under REACH, for example, certain informational requirements are triggered if a substance is designated a ‘substance of very high concern’ (SVHC). A supplier of an article containing a SVHC in a concentration above 0.1 per cent weight by weight (w/w) is required to provide the recipient of the article with sufficient information, available to the supplier, to allow safe use of the article including, as a minimum, the name of that substance. The process begins with chemical identification followed by determination of how a substance or mixture is classified under applicable domestic and international laws. Classification is done on the basis of the results of tests involving a chemical; if the regulatory triggers are met, testing on vertebrate animals for human health hazards is sometimes required. Testing for environmental hazards involves tests for fish, frog, and earth worm toxicity. Mixtures are classified based on their constituents; concentration limits play a critical role, and if a classified constituent exceeds a specified concentration limit, the mixture will also be classified. 28 See e.g. K. R. Richards, ‘Framing Environmental Policy Instrument Choice’ (2000) 10 Duke Environmental Law & Policy Forum 221. 29 Laws generally place risk assessment burdens on governmental authorities but empower them to collect much of the information for risk assessment from industry.

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590 lucas bergkamp and adam abelkop In the United States, EU, and elsewhere, hazardous substances are subject to labelling requirements. These generally require that the specific hazards are identified and that safety precautions are indicated on a label. The label of a hazardous substance or mixture includes pictograms, signal words, hazard statements, precautionary statements, and supplemental statements.30 Internationally, the rules and criteria for the classification and labelling of chemical substances have been mostly harmonized through the Globally Harmonized System (GHS).31 Even prior to the GHS, the United States and EU had made progress in harmonizing their classification and labelling regimes. The current classifications that are used under the EU and US regulatory regimes cover physical, health, and environmental hazards. However, differences remain between the systems. For example, the EU employs several environmental hazard classifications that are not employed in the US.32 In addition to labels, hazards are communicated through the supply chain through safety data sheets (SDSs). The document provides information on the hazards associated with a substance or mixture and on recommended risk management measures. Users of chemicals can utilize the SDS to design and implement appropriate risk management. The supply chain, which starts with the chemical manufacturer and includes all downstream users, including formulators and product manufacturers, as well as wholesalers and retailers, plays a critical role in managing chemical risk.33 Accordingly, regulations often impose supply chain-related requirements. An SDS must be passed on down the supply chain so that all companies handling the product are informed of its hazards and the recommended risk management measures. Additionally, suppliers of products containing an SVHC, for example, may have to provide their customers and consumers with ‘safe use’ information. REACH’s specific title on information in the supply chain sets forth these requirements and imposes some additional duties to communicate specific information up and down the supply chain, such as new information on hazardous properties and any other information that might call into question the appropriateness of the risk management measures identified in an SDS. In practice, supply-chain information on chemical identification, hazards, and suitability for particular uses (even with an SDS) is not always complete or unclear, leaving downstream companies to establish their own risk management practices in chemical selection, handling, and use.34 In addition to information passed along the supply chain, governments may require manufacturers to submit information for the purposes of inventory updates (identifying which chemicals are in commerce) and risk assessment to determine whether additional 30 Occupational Health and Safety Administration, Hazard Communication Pictograms, available at: https://www.osha.gov/dsg/hazcom/pictograms/index.html. 31 United Nations, Globally Harmonized System of Classification and Labelling of Chemicals (GHS), 7th edn (2017), available at: http://www.unece.org/fileadmin/DAM/trans/danger/publi/ghs/ghs_rev07/ English/ST_SG_AC10_30_Rev7e.pdf. 32 In the EU, substances that are ‘hazardous to the environment’ must bear the ‘dead tree and fish’ symbol. Regulation (EC) No. 1272/2008 on the classification, labelling and packaging of substances and mixtures, OJ L 353, 31.12.2008, 1–1355, as amended. 33 M. Rossi, ‘The Business Case for Knowing Chemicals in Products and Supply Chains: A Publication in Support of the SAICM Emerging Policy Issue of Chemicals in Products’ United Nations Environment Programme (2014), available at: http://drustage.unep.org/chemicalsandwaste/sites/ unep.org.chemicalsandwaste/files/publications/UNEP%20CiP%20Business%20case_En.pdf. 34 C. E. Scruggs, L. Ortolano, M. R. Schwarzman, and M. P. Wilson, ‘The Role of Chemical Policy in Improving Supply Chain Knowledge and Product Safety’ (2014) 4 Journal of Environmental Studies and Sciences 132.

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regulation of chemicals 591 regulation is warranted.35 For example, Health and Environment Canada collected risk information on priority chemicals from industry under the authority of section 71 of the Canadian Environmental Protection Act, 1999 (CEPA 1999) to conduct screening level risk assessments under the CMP.36 REACH, TSCA, CEPA 1999, and other laws around the world include processes for gathering existing risk information from industry on chemicals that are currently in commerce (so-called existing chemicals), requiring industry to generate and submit new risk information if the existing information is lacking, and for requiring information to be submitted prior to the manufacture, distribution, and use of new chemicals that are not yet in commerce, and in some instances new uses of existing chemicals. These laws also provide for institutional frameworks to facilitate information sharing between businesses, though the American and European approaches are very different. We discuss these elements of chemicals regulation below in the context of REACH and TSCA. Finally, additional laws require the public reporting and dissemination of data on chemical releases or potential exposures. In the United States, for example, chemical releases from facilities are reported to the public through the Toxics Release Inventory (TRI), established by the Emergency Planning and Community Right to Know Act,37 and certain chemical spills must be reported to the U.S. Coast Guard’s National Response Center.38 Reporting under the TRI has been shown to have an indirect regulatory effect by alerting shareholders to company behaviour.39 California’s Proposition 65 requires businesses to display or provide to individuals a public warning—for example, a consumer product label or a posted sign—before potentially exposing them to a listed carcinogenic or reprotoxic chemical.40 Though controversial, this labelling requirement has led businesses to substitute many listed chemicals for more benign alternatives in an effort to avoid the stigma associated with the Proposition 65 warning.41 Information reported to government authorities through public reporting and private data submission requirements also provides the basis upon which they determine whether additional risk management is warranted through one or more prescriptive regulations.

26.3.5.3 Prescriptive Tools In jurisdictions across the world, there are dozens of command-and-control, or prescriptive, policy tools that authorities can utilize to manage chemical risks. These policies are 35 In addition, the Rotterdam Convention on the prior informed consent procedure for certain hazardous chemicals and pesticides in international trade requires that companies shipping certain chemicals provide information to authorities and obtain their consent prior to shipment. 36 Government of Canada, Information Gathering, available at: https://www.canada.ca/en/healthcanada/services/chemical-substances/canada-approach-chemicals/information-gathering.html. 37 EPCRA § 313. 38 US Environmental Protection Agency (EPA), National Response Center, at: https://www.epa.gov/ emergency-response/national-response-center. 39 J. t. Hamilton, Regulation through Revelation: The Origin, Politics, and Impacts of the Toxics Release Inventory Program (New York: Cambridge University Press, 2005). 40 Office of Environmental Health Hazard Assessment, California Environmental Protection Agency, ‘Proposition 65 in Plain Language’ February 2013, available at: https://oehha.ca.gov/media/downloads/ proposition-65/general-info/p65plain.pdf. 41 D. Roe, ‘Little Labs Lost: An Invisible Success Story’ (2012) 15 Green Bag 2d 275, available at: http:// www.greenbag.org/v15n3/v15n3_articles_roe.pdf.

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592 lucas bergkamp and adam abelkop meant to address a risk to human health or the environment that is ‘unreasonable’ (under TSCA) or not ‘adequately controlled’ or is ‘unacceptable’ (under REACH). That is, the risk is determined to be socially and/or economically unacceptable. Command-and-control approaches can take the form of (1) limits on the quantity or concentration, (2) specifications on the manner, location, condition, or purposes, or (3) a complete, partial, or conditional prohibition, of the manufacture, processing, transport, use, offer, sale, import, export, disposal, or release into the environment of a substance or product containing it.42 Restrictions can be placed on almost any party at any point in the chain of commerce from cradle to grave, though they are often focused on companies involved in chemical manufacturing. Authorities can also issue guidelines, standards, or codes of practice or may facilitate voluntary risk management efforts.43 The most stringent form of regulation is a complete prohibition on a substance. The Stockholm Convention on Persistent Organic Pollutants is an international treaty with 181 parties (though not the United States) that entered into force in 2004.44 The Treaty obligates parties to ensure the prohibition of manufacture and use of chemicals listed under Annex A. The Annex currently lists twenty-four chemicals, including a variety of pesticides (e.g. chlordane, dieldrin, heptachlor, lindane, and others) as well as industrial chemicals (e.g. PCBs, short-chain chlorinated paraffins, and others). DDT is listed under the Treaty’s Annex B, which allows limited production for specified uses, such as vector control in the case of DDT. The Treaty targets PBTs that also have the potential for long-range transport (designated as ‘persistent organic pollutants’, POPs). Many nations also target PBTs (as well as CMR substances) for stringent control. Japan, for example, prohibits the manufacture, import, and use of thirty designated ‘Class I’ PBT substances under its Chemical Substances Control Law.45 However, the law does allow for use-specific exceptions to the general ban. The only chemical that has been exempted under Japan’s law is perfluorooctane sulfonate and its salts (PFOS), which may be used in the manufacture of semiconductors and professional-use photographic film.46 Canada’s Prohibition of Certain Toxic Substances (PCTS) regulation (adopted under the authority of CEPA 1999) operates in the same way.47 The regulation lists twenty-seven substances as of October 2017. In general, those listed under Schedule 1 are broadly prohibited, while those listed under Schedule 2 are prohibited subject to exceptions for particular authorized uses. In that regard, PCTS Schedule 2 resembles REACH authorization, which is explained in detail below.

42 See e.g. CEPA 1999 § 93 for an exhaustive list of the form that command-and-control chemical regulations may take. 43 See Abelkop and Graham, ‘Regulation of Chemical Risks’ for a comparison of risk management approaches under CEPA 1999 and REACH. 44 Information on the Stockholm Convention is available at: http://chm.pops.int/Home/tabid/2121/ Default.aspx. 45 Articles 2(2), 17–34 Chemical Substances Control Law. 46 See T. Ikemoto, ‘Japan’s Efforts on Management of PFOS’ Chemicals Evaluation Office, Environmental Health Department, Ministry of the Environment, Japan. Presentation for the Organization of Economic Cooperation and Development Webinar on Alternatives to Long Chain PFCs, 18 April 2011, available at: https://www.oecd.org/env/ehs/risk-management/47643243.pdf. 47 Prohibition of Certain Toxic Substances Regulations, SOR/2012-285 (Can.), at: http://laws-lois.justice. gc.ca/eng/regulations/SOR-2012-285/index.html.

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regulation of chemicals 593 An alternative approach dubbed ‘pollution prevention’ (P2) illustrates the close nexus between chemicals regulation, pollution control, and waste management.48 The EU, Australia, Canada, the US (at the federal level and that of many states), and other nations have P2 laws in place to reduce exposure to toxic chemicals through substitution of risky chemicals with more benign chemicals and ‘source reduction’ efforts to reduce the quantity of pollutants released into the environment at the point of generation. P2 plans generally involve cooperative efforts between industry and government. In Canada, for example, Environment Canada develops a risk management objective for a particular substance and compels businesses to develop their own risk management strategies for preventing releases of the substance.49 P2 plans are used in lieu of other approaches where information asymmetries make it difficult for an authority to determine what the most effective management option might be and to provide industry with flexibility in achieving objectives. P2 plans and prohibitions are only two of the numerous ways in which chemical risks are managed. After briefly touching on liability law, we compare the primary EU and US regulatory statutes on industrial chemicals in greater detail.

26.3.5.4 Liability Entitlements In addition to informational and prescriptive tools, chemicals are also indirectly managed through liability and property entitlements, including laws on negligence, strict liability, products liability, nuisance, trespass, and battery. Law and economics literature generally refers to the approaches identified in the prior sections as ex ante regulation, which aims to address risks before harm to human health or the environment occurs. Liability and property entitlements, on the other hand, are often exercised by individuals ex post some injury (although companies may take risk management actions to avoid liability). As a general rule, a plaintiff has to prove damage (or threat thereof), an act in breach of a duty of care, and the causal link between the two. Devices such as discovery (in the US) and reversal of the burden of production or proof (in the United States and Europe), however, can help to alleviate the plaintiff ’s burden of persuasion. If a company has violated regulatory chemical risk management requirements, such as those imposed by TSCA and the REACH Regulation, such a breach could amount to negligence, and, thus, expose a company to liability. In the United States, civil liability is a stronger deterrent than in Europe because the amounts of compensation tend to be much higher due to features such as generous compensation for pain and suffering and punitive damages. Remedies include both compensation and, in some cases, injunctions (or cease and desist orders). In the US, liability and property entitlements are expressed through common law and statutes, primarily at the state but also the federal level. Liability laws as applied to harm from chemical exposures—so-called ‘toxic torts’—have somewhat of a regulatory function in the US. Notably, an active group of attorneys has arisen to litigate on behalf of plaintiffs suffering from asbestos-related mesothelioma following Corrosion

48 See S. J. Callan and J. M. Thomas, Environmental Economics and Management: Theory, Policy, and Applications (Mason: South-Western Cengage Learning, 2009), at 477–97. 49 Environment Canada, ‘Pollution Prevention Planning Provisions of Part 4 of the Canadian Environmental Protection Act, 1999, Frequently Asked Questions (2008), 1–3, available at: http:// publications.gc.ca/collections/collection_2009/ec/En4-91-2-2008E.pdf.

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594 lucas bergkamp and adam abelkop Proof Fittings v EPA,50 which struck down EPA’s ban under TSCA on asbestos and asbestos-containing products. The extent to which chemical exposures should be ‘regulated’ by tort law is hotly contested; some see tort standards as an instrument of corrective justice and/or a type of gap-filling regulation while others view it as an inconsistent and unfair approach to governing chemical risk. At the federal level, the US established an enhanced statutory liability standard in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 to govern cases of harm from exposure to chemicals from hazardous waste sites. Though many environmental statutes in the Us include citizen enforcement mechanisms, few others provide for enhanced tort remedies. Overall, tort law has a limited, but notable role in reducing chemical risk.

26.4 Comparative Chemicals Regulation 26.4.1 European Union: REACH Regulation 26.4.1.1 Introduction The Registration, Evaluation, Authorization, and Restriction of Chemicals (REACH) regulation is a compilation of four separate bodies of regulation that govern the cradle-to-grave manufacture, importation, and use of industrial chemicals in the EU.51 The European Chemicals Agency (ECHA) administers the law in cooperation with Member State governments and the European Commission. Though all of the components of REACH are related to one another, each serves a distinct function and is somewhat independent of the others. REACH is designed (i) to facilitate industry assessment and subsequent voluntary management through registration, (ii) to monitor and improve upon industry risk assessment through evaluation, (iii) to phase out ‘substances of very high concern’ (SVHCs) for safer substances subject to authorization for limited continued uses, and (iv) to restrict certain uses of chemicals of concern.52 The following sub-sections provide an overview of each component.

26.4.1.2 Registration Registration is based on the ideal of ‘no data, no market’. If a substance is not registered, it may not be manufactured or placed on the market in the EU. Registration requires that a manufacturer or importer gather and analyse data on a substance that the manufacturer produces in, or importer imports into, the EU market in quantities greater than one metric tonne per year. Registration requirements apply to chemicals in bulk, whether substances 50 Corrosion Proof Fittings v EPA, 947 F.2d 1201 (5th Cir. 1991). 51 REACH, Preamble 3, 4, 7. For a description of the processes under REACH, see generally Herbatschek et al., ‘The REACH Programmes and Procedures’. Portions of our description of REACH are drawn from Abelkop and Graham, ‘Regulation of Chemical Risks’ and L. Bergkamp and M. Penman, ‘Introduction’ in Bergkamp (ed.), The European Union REACH Regulation for Chemicals, at 5–9. 52 L. Bergkamp and D. Young Park, ‘The Organizational and Administrative Structures’ in Bergkamp (ed.), The European Union REACH Regulation for Chemicals, at 23, 37.

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regulation of chemicals 595 or mixtures, and to substances in products (‘articles’).53 For articles, registration is required if the substance is intended to be released from the article or if ECHA has grounds to suspect that there may be a release that presents a risk to human health or the environment. These substances must be registered in a central database operated by ECHA through electronic submission of a technical dossier. The purpose of the registration programme is to address the massive information gap on ‘existing’ chemicals and to reduce asymmetries by requiring the industry submission of known information on chemicals in commerce and release of much of the information to the general public via ECHA’s website, subject to exceptions for some confidential business information (CBI). A dossier must include information on the identity of the manufacturer, importer, or producer; the identity, including chemical and physical properties, of the substance; the manufacture and uses of the substance; environmental fate and pathways; toxicological information; guidance on safe use; and research summaries.54 An ideal dossier would include a comprehensive risk assessment, but empirical studies of data quality show a heavy reliance on modeling and estimation techniques rather than test data.55 Data requirements vary as a function of the production or import volume (at individual company thresholds of 1, 10, 100, and 1,000 metric tonnes per year) and hazards (e.g. CMR properties) of the particular substance. For example, quantities of 10 metric tonnes or more per year require, in addition to a base data set, the submission of a Chemical Safety Report (CSR), which details potential exposure scenarios and risk management measures.56 To promote safety in practice, registrants are required to implement and recommend to customers the risk management measures set out in the CSR. These measures are intended to achieve ‘adequate control’ of the risks associated with the substances. To reduce the need for additional animal testing, REACH applies an innovative feature that requires that multiple manufacturers of the same chemical join together and submit a single dossier, ‘one substance, one registration’. Companies form Substance Information Exchange Forums (SIEFs) and contractual organizations called consortia to facilitate information sharing, which means that test data owned by one company can be used to meet the obligations of all companies in the group. A ‘lead registrant’ may bear most of the work but may collect some fees from other companies to defray some of the costs of being a lead registrant.57 One company in a SIEF must sell its data to others, a pattern that has led to some difficult negotiations since there is no obvious way to set a price for data from an older toxicity study. This gives rise to complex financial and legal issues that arose during the initial formation and operation of SIEFs and consortia under REACH.58 The transaction 53 Certain types of chemicals, including polymers, are exempt from registration; intermediates benefit from reduced data requirements. REACH also exempts whole categories of chemicals, including radioactive substances, waste material, medicine and medical devices, food and feed, biocides and pesticides, cosmetics, and military equipment, which are subject to product-specific bodies of regulation. 54 Article 10(1)(a) REACH. 55 A growing literature evaluates the quality of REACH registration dossiers. See N Gilbert, ‘Data Gaps Threaten Chemical Safety Law’ (2011) 475 Nature 150. 56 Articles 10(a)(x), (b), 14(1)(3) REACH. 57 See M. Penman and M. Richards, ‘REACH Consortia’ in Bergkamp (ed.), The European Union REACH Regulation, at 185, 191. 58 A. D. K. Abelkop et al., ‘Regulating Industrial Chemicals: Lessons for U.S. Lawmakers from the European Union’s REACH Program’ (2012) 42 Environmental Law Reporter 11042, at 11051–33.

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596 lucas bergkamp and adam abelkop costs were substantial, but the collaboration between businesses has reduced the amount of new toxicity tests and other data gathering that might otherwise have been necessary.59 As of November 2018, the REACH registration database includes information on 21,405 unique substances from 89,905 dossiers.60 The final registration deadline, for substances that a company produces or imports in volumes of 1–100 tonnes per year, was 31 May 2018. ECHA received 32,515 completed dossiers covering 10,708 substances, including 7,462 substances that had not been previously registered.61 Registration dossiers are submitted electronically to ECHA, which conducts an automatic ‘technical’ check for dossier completeness. But at this stage, ECHA does not review the adequacy of the information.

26.4.1.3 Evaluation Evaluation refers to the collection of disparate processes that EU authorities employ to make decisions on proposals for testing, to assess whether registration dossiers comply with REACH’s requirements, and to conduct further risk assessment. The regulation provides for three separate, unrelated types of evaluation. First, ECHA must evaluate any proposal for animal testing to decide whether it complies with the applicable provisions of REACH. Second, under ‘dossier evaluation’, ECHA conducts compliance checks to verify the compliance of part or all of a registration dossier with the applicable REACH requirements. REACH obligates ECHA to check at least 5 per cent of the dossiers from each reporting deadline, and ECHA reports that it conducted checks on roughly 35 per cent of the registration dossiers from the 2010 deadline.62 Third, ‘substance evaluation’ constitutes a government-driven risk assessment process that can be undertaken if there is a reasonable ground for suspecting that a substance p resents a risk to human health or the environment. Substances are selected for evaluation through a risk-based process and placed on the Community Rolling Action Plan, which is updated annually to identify the substances to be evaluated over a three-year period. Substance evaluation is conducted by Member State authorities in cooperation with ECHA and the European Commission. A Member State authority may require industry to both obtain and provide information beyond existing registration requirements. Substance evaluation may result in no further action, a request for additional data, or a determination that a substance should be considered for risk management action either under REACH or possibly another statute.

26.4.1.4 Authorization Among the nearly 100,000 chemicals on European inventories, only about 1,500 have been identified as potential SVHCs.63 The Commission and ECHA released a Roadmap and 59 Penman and Richards, REACH Consortia’, at 186. 60 ECHA, ‘Registered Substances’, available at: https://echa.europa.eu/information-on-chemicals/ registered-substances. 61 ECHA, ‘Summary—Reach 2018 Deadline’, available at: https://echa.europa.eu/documents/10162/ 5039569/reach_2018_deadline_statistics_en.pdf/ecfe225f-caf0-5bad-7c7f-ce57d2c8938f. 62 ECHA, ‘5% Compliance Checks of the 2010 Registration Dossiers’, available at: https://echa.europa. eu/regulations/reach/evaluation/compliance-checks/5-percent-compliance-checks-2010-registrationdossiers. 63 Herbatschek et al., ‘The REACH Programmes and Procedures’.

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regulation of chemicals 597 Implementation Plan, respectively, in 2013 outlining the processes for SVHC identification to take place alongside evaluation processes.64 The Commission estimates that about 440 chemicals will be assessed for SVHC classification by 2020. Article 57 specifies the criteria for SVHC classification as those substances that meet the criteria for classification as a CMR, PBT, vPvB, or substances of equivalent concern (e.g. EDCs). Article 58(3) requires priority assessment of those substances that are PBT or vPvB, with wide dispersive use, significant market-level production or import volume, registration for non-intermediate use, for which a prima facie case of unacceptable risk cannot be currently made, that are not exempt from authorization, and that are not subject to regulation under other EU legislation. After tiered screening, expert groups within ECHA examine chemicals more thoroughly, allowing for the collection of additional information, to determine if they meet the Article 57 SVHC criteria. If the expert group suggests that the substance does meet the Article 57 criteria, then the substance may undergo what has been dubbed ‘risk management options’ (RMO) analysis to determine the best route of management: authorization, restriction, or a programme under different legislation. Though RMO clearly signals that authorities will consider alternatives, authorization is envisioned as the primary risk management program under REACH; it is designed to phase out and substitute SVHCs for safer alternatives.65 Under the authorization programme, ECHA may submit an Annex XV dossier to formally identify the substance as an SVHC and place it on the ‘Candidate List’ for potential placement on the Annex XIV ‘Authorization List’. Placement on the Candidate List triggers additional supply chain information requirements, and although no other risk management is required, it has had the effect of stigmatizing the use of the chemical.66 As of January 2019, there are 191 substances on the Candidate List and forty-three substances on the Authorization List.67 There are conflicting accounts on whether all Candidate List chemicals must eventually be placed on the Authorization List. Through comitology, the Commission may place a Candidate List substance on the Authorization List. Doing so initiates a risk management process whereby users of the listed chemical must phase-out use by a specified sunset date. Before the sunset date, however, users may apply to the Commission for authorization to continue a particular use of the chemical. Uses can be authorized in one of two ways.68 First, the Commission must grant 64 European Commission, ‘Roadmap on Substances of Very High Concern’; ECHA, ‘SVHC Roadmap to 2020 Implementation Plan’. 65 B. Hansen, ‘Background and Structure of REACH’ in Bergkamp (ed.), The European Union REACH Regulation for Chemicals, at 17–22. 66 Center for Strategy & Evaluation Services, ‘Interim Evaluation: Impact of the REACH Regulation on the innovativeness of the EU chemical industry’ (2012), available at: http://ec.europa.eu/enterprise/ sectors/chemicals/files/reach/review2012/innovation-final-report_en.pdf; K. Heitman and A. Reihlen, ‘Techno-Economic Support on REACH: Case study on ‘Announcement Effect’ in the Market Related to the Candidate List of Substances Subject to Authorization’ (2007), available at: http://ec.europa.eu/ environment/chemicals/reach/pdf/background/report_announcement_effect.pdf; G. Grunwald and P. Hennig, ‘Impacts of the REACH Candidate List of Substances Subject to Authorisation: The Reputation Mechanism and Empirical Results on Behavioral Adaptations of German Supply Chain Actors’ (2014) 11 Journal of Business Chemistry 53. 67 ECHA, ‘Candidate List of Substances of Very High Concern for Authorisation’, available at: https:// echa.europa.eu/candidate-list-table; ECHA, ‘Authorisation List’, available at: https://echa.europa.eu/ authorisation-list. 68 Article 60 REACH.

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598 lucas bergkamp and adam abelkop authorization of a use if the risks to human health or the environment from the use arising from the substance’s intrinsic properties are adequately controlled. Second, if the risks are not adequately controlled, the use may be authorized if an applicant demonstrates that the socio-economic benefits of the use outweigh the risk to human health or the environment arising from the use of the substance, and there are no suitable alternative substances or technologies. Certain substances, (e.g. PBTs) for which European authorities find that there is no ascertainable safety threshold, may not be authorized by demonstration of adequate control. Under either route, the burden of proof is on the applicant. If granted, authorizations are time-limited and subject to conditions. Downstream users may use a listed substance for an authorized use provided they have obtained an authorization or obtain the substance from a company to which an authorization has been granted, and stay within the conditions of that authorization. They must also inform ECHA so that the authorities are fully aware of who is using substances requiring authorization.

26.4.1.5 Restriction The REACH restriction programme is a carry-forward from prior legislation and serves as a safety net to address targeted risks are not addressed through the other provisions of REACH. Through a process that includes ECHA and the Member States, and allows for stakeholder input, the European Commission may issue restrictions on the manufacture, placement on the market, or use of a substance. Restrictions can take a variety of forms, ranging from limited conditions on use to complete prohibitions. A restriction can only be applied upon a finding that there is an ‘unacceptable risk to human health or the environment, . . . which needs to be addressed on a Community-wide basis’.69 As with authorization, the restriction process proceeds on the basis of a structured dossier.70 The decision process requires regulators to consider the socio-economic impact of the restriction, including the availability of alternatives. Restrictions are set forth in REACH Annex XVII.

26.4.2 United States: Amended TSCA 26.4.2.1 Introduction The Toxic Substances Control Act (TSCA)71 was enacted in 1976 to control risks from industrial chemicals. The original statute required the US Environmental Protection Agency (EPA) to develop an inventory of existing chemicals, which numbered around 62,000 (and has grown to about 85,000). These ‘existing’ chemicals were grandfathered into regulatory acceptance. For existing chemicals, TSCA § 4 provided EPA with authority to, by rule, require manufacturers, importers, or processors, to generate and submit new information, including testing. However, to require such testing, EPA had to show that the chemical may present an unreasonable risk to human health or the environment based on existing data. Though courts interpreted the threshold to be relatively low, this provision has been labelled

69 Article 68(1) REACH. 70 Articles 133(4) (adoption of a new restriction), 69–73 (amendment of an existing restriction) REACH. 71 15 U.S.C. §§ 2601–92.

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regulation of chemicals 599 a ‘Catch-22’ for requiring data in order to require data to be generated.72 The original TSCA § 6 provided EPA with authority, upon finding that a chemical or use presents an unreasonable risk to health or the environment, to apply risk management ‘to the extent necessary to protect adequately against such risk using the least burdensome requirements’. In Corrosion Proof Fittings v EPA (1991),73 the Fifth Circuit Court of Appeals held that the ‘least burdensome requirements’ language required EPA to justify its chosen risk management approach (at issue was EPA’s broad ban on asbestos) through benefit-cost analysis comparisons with several other possible approaches, which proved to be functionally unworkable for the agency. Because of these regulatory hurdles, EPA rarely required testing on existing substances and regulated only five under § 6 throughout the law’s forty-year lifespan (PCBs, fully halogenated chlorofluorocarbons, dioxin, asbestos, and hexavalent chromium).74 It was also due to these regulatory hurdles (along with other features) that TSCA was criticized as a broken statute; which failed to protect public health and the environment and undermined the public trust in the chemicals and consumer products industries.75 On 22 June 2016, President Obama signed the Frank R. Lautenberg Chemical Safety for the 21st Century Act (LCSA) into law, the culmination of a multi-year negotiation process. The statute substantially amends TSCA, maintaining its basic structure, but remedying many of its faults and adding new processes altogether.76 Whereas REACH constitutes a collection of separately administered and loosely coordinated programmes with a broad application, TSCA operates with a more narrowly targeted and systematic approach. The following sections comment on the design of the law and its early stages of implementation. Given how recently the statute was enacted and its narrower scope, we provide slightly more detail on the administrative processes under new TSCA than we did on REACH. 72 C. W. Schmidt, ‘TSCA 2.0: A New Era in Chemical Risk Management’ (2016) 124 Environmental Health Perspectives 183; American Bar Association, Section on Environment, Energy, and Resources, ‘ABA SEER Overview of the Toxic Substances Control Act’ (2014), 4, available at: https://www.americanbar. org/content/dam/aba/administrative/environment_energy_resources/whitepapers/tsca/TSCA_paper_ overview.authcheckdam.pdf. 73 947 F.2d 1201 (5th Cir. 1991). 74 Government Accountability Office (GAO), Chemical Regulation: Options Exist to Improve EPA’s Ability to Assess Health Risks and Manage Its Chemical Review Program (June 2005), 58–60, available at: https://web.archive.org/web/20150418123905/http://www.gao.gov/assets/250/246667.pdf. EPA regulated another four new chemicals under TSCA § 5. B. Chameides, ‘In Search of the TSCA Five’ (13 June 2011) The Green Grok, available at: https://web.archive.org/web/20110831230315/http://www.nicholas.duke. edu/thegreengrok/insearchoftsca5. At the time LCSA was adopted, EPA had initiated § 6 rule-making for three additional chemicals: trichloroethylene, methylene chloride, and N-methylpyrrolidone. 75 See e.g. EPA, ‘EPA Administrator Jackson Unveils New Administration Framework for Chemical Management Reform in the United States’, EPA Press Release, 29 September 2009, available at: https:// yosemite.epa.gov/opa/admpress.nsf/bd4379a92ceceeac8525735900400c27/d07993fdcf801c22852576400 05d27a6!OpenDocument; R. Denison, ‘Ten Essential Elements in TSCA Reform’ (2009) 39 Environmental Law Reporter 10020. 76 The American Bar Association maintains a TSCA resources site at: https://www.americanbar.org/ groups/environment_energy_resources/resources/tsca_reform.html. For a thorough explanation, see L. L. Bergeson and C. M. Auer (eds.), New TSCA: A Guide to the Lautenberg Chemical Safety Act and Its Implementation (American Bar Association, Washington, DC, 2017); L. L. Bergeson, D. Bryden, and K. L. Kirkeby, ‘Chemical Management: What All Environmental, Energy, and Resources Lawyers Need to Know about TSCA Reform and Why’, American Bar Association, Section of Environment, Energy, and Resources, 46th Spring Conference, 30 March 2017; L. L. Bergeson, ‘TSCA Reform: Key Provisions and Implications’ (Winter 2016) 26(2) Environmental Quality Management.

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26.4.2.2 Inventory Reset: TSCA § 8 Unchanged, TSCA § 3(2) excludes pesticides, food and additives, drugs, and cosmetics (among others) from the definition of ‘chemical substance’. As noted above, these are governed by separate bodies of regulation (as with REACH). Non-isolated intermediates, polymers, byproducts, impurities, and other categories are also exempted.77 There are about 85,000 chemical substances currently listed on the TSCA Inventory (in both public and confidential lists). It is unknown how many of these are actively in commerce.78 Thus, the amended TSCA § 8 requires the EPA to identify substances on the inventory as either ‘active’ or ‘inactive’ in US commerce in a process to ‘reset’ the inventory. EPA published its final rule in August 2017 specifying the process and scope of the reset.79 Reporting is retrospective: by 5 October 2018, businesses were required to report to EPA the non-exempt substances they manufactured or imported from the ten-year ‘lookback period’ ending on 21 June 2016. Reported substances and those added to the inventory after 21 June 2016 will be identified as active and may be subject to prioritization, risk evaluation, and management under TSCA § 6. Once a substance is designated inactive, a company will need to go through the § 5 notification and approval process (described below) before it can be manufactured, imported, or processed.

26.4.2.3 Prioritization, Evaluation, and Management of Active Chemicals: TSCA § 6 The amended TSCA maintains the focus of the old statute on addressing ‘unreasonable risk’ to human health or the environment from chemical substances or mixtures but establishes a much more structured process to prioritize, evaluate, and, if necessary, manage chemical risk with stepwise processes and rigid timelines. The prior statute was hindered by a slow pace and general lack of direction, which EPA addressed in old TSCA’s final years with the TSCA Work Plan for Chemical Assessments to identify priority chemicals for risk assessment.80 Canada’s experience with the CMP beginning in 2006 demonstrated the utility of a structured prioritization system for chemical-by-chemical assessment. The amended TSCA §6(b) applies a similar prioritization concept but is less ambitious than the CMP. The statute directs EPA to establish a screening process to identify high- and low-priority substances for risk evaluation based on hazard and exposure potential, including whether the substance is persistent or bioaccumulative, whether there may be a ‘potentially exposed or susceptible subpopulation’, ‘storage near significant sources of drinking water’, ‘conditions of use’, and production volume.81 Thus, EPA must consider subpopulations that ‘may be at greater risk’ due to heightened susceptibility or exposure to a substance, including 77 e.g. 40 CFR 710.4 (scope of inventory), 723.250 (polymers). 78 Schmidt, ‘TSCA 2.0: A New Era in Chemical Risk Management’, at 185. 79 82 Federal Register 37520 (8 August 2017); 40 CFR 710. 80 See EPA Office of Pollution Prevention and Toxics, ‘TSCA Work Plan for Chemical Assessments: 2014 Update’ (2014), available at: https://www.epa.gov/sites/production/files/2015-01/documents/tsca_ work_plan_chemicals_2014_update-final.pdf. 81 TSCA § 6(b)(1)(A). EPA’s final rules on prioritization and risk evaluation were released in June 2017; (2017) 40 CFR 702. For explanations of the prioritization and evaluation processes, see ‘EPA Issues Final TSCA Framework Rules’, Bergeson & Campbell, PC, 26 June 2017, available at: http://www.lawbc. com/regulatory-developments/entry/epa-issues-final-tsca-framework-rules.

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regulation of chemicals 601 ‘infants, children, pregnant women, workers, or the elderly’.82 This could also include disadvantaged communities that face greater exposure than the general population.83 The new statute also defines ‘conditions of use’ as ‘the circumstances . . . under which the substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of ’.84 EPA must designate as a high-priority those substances that ‘may present an unreasonable risk’ to human health or the environment due to potential hazard and exposure, considering the above factors, but may not consider costs or other non-risk factors.85 Substances that do not meet the high-priority standard must be designated low-priority for risk evaluation.86 The statute creates rigid timelines for decision-making on prioritization, risk evaluation, and management. Overall, the priority screening process must take at least nine months and no more than twelve months.87 For a particular substance, prioritization screening begins once EPA publishes a notice in the Federal Register, triggering a ninety-day period in which interested parties may submit information relevant to prioritization screening. EPA may extend the overall process by another ninety days (to a total of fifteen months) if it requires data submission by order, rule, or consent agreement under § 4. If information remains insufficient following the three-month extension, EPA must designate the substance as high-priority for evaluation—a new application of the precautionary principle in US law.88 The designation of a substance as low-priority is a final agency action subject to judicial review;89 but a high-priority designation is not subject to review as a final agency action.90 Rather, high-priority substances immediately enter the risk evaluation process. Another novel feature of the new TSCA is that a manufacturer may request (and pay for) a risk evaluation, which may be limited to one or more particular uses.91 ‘Risk evaluation’ is the regulatory term for the risk assessment process that EPA will employ under the new TSCA to designate whether a substance presents an unreasonable risk of injury to health or the environment.92 The statute required EPA to initiate risk evaluations for ten substances from the 2014 TSCA Work Plan Update within six months of its enactment. EPA met that requirement in November 2016 and is in the process of evaluating asbestos, trichloroethylene (TCE), 1,4-Dioxane, carbon tetrachloride, and others.93 Risk evaluation will proceed in five parts: scope, hazard assessment, exposure assessment, risk characterization, and risk determination. Within six months of the initiation of the evaluation, 82 TSCA § 3(12). 83 L. E. Cullen, ‘The TSCA Amendments Simplified: Nine Key Features of the New Law and Three Compromises that Will Affect Business’ (30 May 2016) 40 Chemical Regulation Reporter 629. 84 TSCA § 3(4). 85 TSCA § 6(b)(1)(B)(i). 86 TSCA § 6(b)(1)(B)(ii). 87 EPA, ‘Prioritizing Existing Chemicals for Risk Evaluation’, available at: https://www.epa.gov/assessingand-managing-chemicals-under-tsca/prioritizing-existing-chemicals-risk-evaluation. 88 TSCA § 6(b)(1)(C)(iii). 89 The standard of review for TSCA remains the ‘substantial evidence’ standard rather than the ‘arbitrary and capricious’ standard, which is more common. TSCA § 19(c). 90 EPA may revise a low-priority designation at any time by re-initiating the screening process. 91 TSCA § 6(b)(4)(C)(ii). 92 TSCA § 6(b); EPA, ‘Risk Evaluations for Existing Chemicals Under TSCA’, available at: https://www. epa.gov/assessing-and-managing-chemicals-under-tsca/risk-evaluations-existing-chemicals-under-tsca 93 EPA, ‘EPA Names First Chemicals for Review Under New TSCA Legislation’, EPA News Releases, 29 November 2016, available at: https://www.epa.gov/newsreleases/epa-names-first-chemicals-reviewunder-new-tsca-legislation.

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602 lucas bergkamp and adam abelkop EPA must release the scope to identify the conditions of use, subpopulations, ecological receptors, and hazards that it plans to consider during the risk evaluation as well as the methods it plans to use and its plan for peer review.94 Risk evaluation must ‘describe the weight of the scientific evidence’ and may not consider costs.95 EPA must complete the final risk determination within three years of the start of the evaluation process. Notably, the final rule on risk evaluation indicates that EPA will make risk determinations on each individual use identified in the scope and may release individual use determinations before the final determination is complete.96 There is no bright-line to define ‘unreasonable risk’; rather, the determination is made on a case-by-case basis. If EPA determines that a chemical presents an unreasonable risk, then a risk management decision under TSCA § 6(a) is compulsory.97 EPA must propose a rule within one year of the completion of the risk evaluation and must publish a final rule within one more year, with an allowance for a limited two-year extension. As with prioritization, a determination of no unreasonable risk is a final agency action subject to judicial review, but an affirmative determination is not a final agency action. Rather, the risk management rule is the final agency action. TSCA § 6(a) gives EPA broad authority to fashion a wide range of prescriptive tools, including a restriction or prohibition on manufacturing, processing, distribution in commerce, as applied to a particular substance or mixture, a specific use, or a concentration or volume-based limit.98 EPA can regulate any commercial use or disposal method. It can also apply informational tools like safety warnings and instructions. Moreover, the new TSCA § 6(g) includes a provision that allows EPA to grant an exemption from a rule for a specific condition of use if: the use is a ‘critical or essential use for which no technically and economically feasible safer alternative is available’; compliance with the rule would significantly disrupt the national economy, security, or critical infrastructure; or the chemical under review provides a safety benefit relative to reasonably available alternatives (e.g. to avoid a regrettable substitution). The exemption must have a time limit, and EPA may issue an additional rule to modify, extend, or eliminate the exemption. While REACH authorization is essentially a full prohibition subject to ‘authorization’ of use-based exceptions for particular applicants, TSCA § 6(g) is broader in that it can (1) apply to any regulatory requirement, not just full prohibitions; and (2) apply to a use without an applicant applying for the exception. Notably, the new TSCA eliminates the ‘least burdensome requirements’ language in § 6(a) that impeded EPA’s ability to issue risk management rules. Instead, when proposing and issuing a final risk management rule, new TSCA § 6(c) requires EPA to publish a statement on the effects and magnitude of exposure to humans and the environment, benefits of the chemical, and ‘reasonably ascertainable economic consequences of the rule’. These include: likely effects on the ‘national economy, small business, technological innovation, the environment, and public health’; and both benefit-cost and cost-effectiveness analysis of the ‘proposed and final regulatory action and of the one or more primary alternative regulatory actions’ that EPA considered. Finally, EPA must also consider whether a safer and feasible chemical alternative will be available when the regulatory action takes effect. These factors 94 TSCA § 6(b)(4)(D); 40 CFR 702. 95 TSCA § 6(b)(4)(F). 96 40 CFR 702; 82 Federal Register 33725 (20 July 2017), https://www.gpo.gov/fdsys/pkg/FR-2017-0720/html/2017-14337.htm. 97 TSCA § 6(c)(1). 98 A restriction may apply to an article. TSCA § 6(c)(2)(E).

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regulation of chemicals 603 are not dispositive; the statute requires EPA to ‘factor in, to the extent practicable, the considerations’ listed above. Nonetheless, one could speculate that a regulatory alternative with a more favourable benefit-cost balance than EPA’s chosen approach might not fare well for the agency on review. One can also reasonably anticipate that how the factors under the new § 6(c) should guide policy instrument choice will be the subject of litigation. No risk management decisions under the new TSCA have been made as of this writing.

26.4.2.4 New Chemicals and Significant New Uses: TSCA § 5 New chemicals enter the marketplace at a rate of over 700 per year.99 REACH applies registration requirements to both new and existing substances produced in quantities of one tonne or more per year per company. TSCA on the other hand (old and new) allows existing substances in commerce to remain in commerce subject to evaluation and management primarily under § 6. TSCA § 5(a) generally prohibits the manufacture of a new chemical and the manufacturing and processing of any chemical for a use that EPA has determined is a ‘significant new use’ (SNU), without ninety-day prior notice, review, and approval by EPA (often referred to as pre-manufacture notice, PMN).100 Applicants must also pay a notable fee for using the review and approval process. This is a significant change from the prior statute, which required only ninety-day notice for new chemicals and SNUs. Within the ninety-day review period, EPA must make one of three determinations on whether the new substances or SNU presents an unreasonable risk to health or the environment. First, EPA may publish a statement determining that the new substance or SNU is ‘not likely’ to present an unreasonable risk. The applicant may then proceed with manufacturing the new chemical or with the new use. Second, EPA may determine that the new substance or SNU presents an unreasonable risk. TSCA § 5(f) then requires EPA to issue a risk management rule that prohibits or allows for restricted or regulated manufacture and use of the new chemical or SNU in a way that addresses the unreasonable risk. EPA must then also issue a significant new use rule (SNUR), which identifies any non-conforming manufacture, processing, use, distribution in commerce, or disposal as a SNU that would require prior approval.101 Third, EPA may determine under § 5(e) that (i) available information is entirely insufficient to evaluate the new substance or SNU, or (ii) in the absence of sufficient information, the new substance or SNU may present unreasonable risk, or (iii) substantial quantities will be produced and may enter the environment or may be substantially exposed to humans. EPA must then issue an order regulating to the extent necessary to protect against unreasonable risk and issue a SNUR. If EPA fails to issue a determination in its ninety-day window, then it must refund the fee to the applicant, but must still issue a determination. The requirement to issue determinations on new substances and SNUs is likely to place a substantial resource burden on EPA.102 99 GAO, ‘Chemical Regulation’. 100 The PMN requirement does not apply to substances imported as part of an article. For a description of exemptions from various TSCA reporting requirements, including those pertaining to articles, see S. L. Dolan and R. E. Engler, ‘Basic TSCA Provisions’ in Bergeson and Auer, New TSCA, at 18–21; L. M. Campbell and L. R. Burchi, ‘Chemical Substances Not Found on the TSCA Inventory but Exempt from PMN Requirements’ in Bergeson and Auer, New TSCA. 101 EPA may decide not to issue an SNUR, but must publish a statement explaining why not. 102 Cullen, ‘The TSCA Amendments Simplified’.

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604 lucas bergkamp and adam abelkop But this requirement has the potential to be as protective against risks from new chemicals as REACH’s registration requirement depending on how rigorous the processes are at facilitating risk management in practice. The REACH registration requirements, though, are quite onerous, and it remains yet to be seen how US information requirements for new chemicals will compare.

26.4.2.5 Information Gathering: TSCA § 4 The final aspect of TSCA that this chapter will comment on is information gathering to support regulatory activity under TSCA and other laws. TSCA § 4 gives EPA authority to require testing and submission of information. The new statute retains EPA’s authority to require testing if it finds that (i) available information is insufficient to reasonably determine or predict the effects of a substance’s production, distribution, use, and disposal on health or the environment, (ii) testing is necessary to develop such information, and either (iii) the substance may present an unreasonable risk to health or the environment, or (iv) the substance will be produced in substantial quantities, and there may be substantial environmental or human exposure.103 In addition, the new statute expands EPA’s authority to require testing by rule, order, or consent agreement if it is necessary to review a notice or implement a rule under § 5; to conduct prioritization or risk evaluation or to implement a rule under § 6; and in certain other instances as well.104 In requiring testing, EPA must use a tiered process by which screening-level tests and assessment of available information must guide the decision to require additional testing. Whether by rule, order, or consent agreement, EPA must identify the substance to be tested, protocols and methodologies for the development of new information (with consideration of costs), and a reasonable timeframe in which to require submission of the new information.105 It must also identify the need for the new data, describe how the available information informed the decision to require additional testing, and explain the basis for any decision that requires the use of vertebrate animals.106 The new statute also includes a provision for EPA to reduce and replace animal testing, including the implementation of a strategic plan to support the development of alternative testing methods.107 Whereas REACH requires co-registrants of the same substance to submit information together, TSCA allows, but does not require, persons who must conduct testing to share data and establishes rules for compensation.108 US companies are likely to seek access to test data developed for REACH registration, which will require careful negotiation and consideration given that EPA intends to publish and release test data.109

26.5 Concluding Remarks Chemicals regulation is a quickly expanding area of environmental law, with a flurry of legislative action across the world in the last decade. In addition, but not covered by this 103 TSCA § 4(a)(1). 104 TSCA § 4(a)(2). 105 TSCA § 4(b)(1). 106 TSCA § 4(a)(3). 107 TSCA § 4(h). 108 TSCA § 4(c). 109 H. Estreicher, ‘Sharing Data Under Reformed TSCA’ (March 2017) Chemical Watch: Global Business Briefing, available at: https://chemicalwatch.com/54507/sharing-data-under-a-reformed-tsca.

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regulation of chemicals 605 chapter, voluntary regulation by industry, including programmes like Responsible Care and the High Production Volume Challenge, are intended to reduce the risks of chemical substances. Retailers like Target and Wal-Mart have developed their own chemical screening programmes to address chemical risk to consumers.110 This chapter has distinguished chemicals regulation from other areas of environmental law, explained the general concepts and processes that are relatively common to chemicals regulations around the world, and provided in depth explanations of the primary chemicals laws in Europe and the United States. TSCA and REACH demonstrate common features of chemicals regulations. They both address the need to generate information where it is lacking, overcome information asymmetries, and are intended to reduce injury from chemicals. To those ends, each law includes a system for identifying what chemicals are on the marketplace, prioritizing those chemicals for assessment, gathering necessary information, conducting risk assessment, and determining how to manage risks. The ways that REACH and TSCA go about these processes are very different though.111 The programmes under REACH are much more separately administered than those under TSCA (and most other regulatory programmes, like CEPA 1999). Registration is itself deliberately designed to address the information gap on chemicals and to facilitate supply chain communication on chemical safety. The scope of registration is much broader than that of TSCA, both in terms of the number of chemicals it addresses and the actors in the supply chain it will directly affect. In this sense, it flips the burden of proof of safety onto industry by requiring companies to assess and manage risk for any chemical they place onto the market. Information gathering under TSCA, on the other hand, seems to be more focused on supporting the regulatory processes for government determination on risk presented by new and existing chemicals. In order to regulate, both systems place the burden of proof of on authorities. TSCA seems to be more synchronized in how the information gathering, assessment, and management decision-making processes will function. One positive feature of TSCA is that it includes a common safety standard; EPA must determine whether a chemical presents an unreasonable risk. CEPA 1999 also includes a common standard. REACH registration, authorization, and restriction, however, all include different safety standards—for which REACH has been widely criticized. REACH has also experienced growing pains in regards to the relation between the various risk management processes. EU authorities initially envisioned that authorization would be the primary risk management tool; but the law has needed to (uncomfortably) add risk management options analysis into the decision-making process along with a process for prioritizing chemicals for assessment. Perhaps learning from REACH’s example—and Canada’s—prioritization was built into TSCA’s statutory framework, and TSCA allows EPA to tailor risk management tools to address particular risks. TSCA, however, is less ambitious. Though, we have not extensively commented on Canadian law, it may be a more appropriate model for countries with smaller markets as it has allowed authorities to evaluate thousands of chemicals (a projected 4,300 between 2006 and 2020) using screening-level assessment techniques. As regulations 110 M. M. Bomgardner, ‘Regulation by Retail’ Chemical & Engineering News, 17 February 2014. 111 D. Uyesato and L. Bergkamp, ‘Reformed TSCA and REACH: How Do They Compare?’ (2017) CW+ Chemical Risk Manager.

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606 lucas bergkamp and adam abelkop around the world mature, other nations may also find it desirable to focus regulatory effort based on chemical determinations made in other jurisdictions (as in common in California, for example) rather than re-invent the risk evaluation wheel for a particular chemical of concern. Empirical evidence to support a position on the comparative effectiveness (or efficiency) of the various approaches does not yet exist. Most chemicals regulations are relatively new; REACH and Canada’s Chemicals Management Plan are ten years old. There may also be value in regulatory diversity. It is our sincere hope that our short explanation of chemicals regulation has helped the reader to better understand that diversity.

26.6 Acknowledgements Portions of this chapter were prepared for the introduction and conclusion to this author’s dissertation. Please see A. D. K. Abelkop, Litigation and Regulation in Chemical Risk Law, dissertation defended November 2017, Indiana University, School of Public and Environmental Affairs.

26.7 Select Bibliography Abelkop, A. D. K., J. D. Graham, and T. R. Royer. ‘Persistent, Bioaccumulative, and Toxic (PBT) Chemicals: Technical Aspects, Policies, and Practices’ (2016). Abelkop, A. D. K., and J. D. Graham, ‘Regulation of Chemical Risks: Lessons for Reform of the Toxic Substances Control Act from Canada and the European Union’ (2015) 32 Pace Environmental Law Review 108. Anastas, P. T. and J. C. Warner, Green Chemistry: Theory & Practice (2000). Applegate, J. S., ‘Synthesizing TSCA and REACH: Practical Principles for Chemical Regulation Reform’ (2008) 35 Ecology Law Quarterly 721. Applegate, J. S., J. G. Laitos, J. M. Gaba, and N. M. Sachs, The Regulation of Toxic Substances and Hazardous Wastes: Cases and Materials (2nd edn. 2011). Bergeson, L. L. (ed.), Global Chemical Control Handbook: A Guide to Chemical Management Programs (2014). Bergeson, L. L. and C. M. Auer (eds.), New TSCA: A Guide to the Lautenberg Chemical Safety Act and Its Implementation (2017). Bergkamp, L. (ed.), The European Union REACH Regulation for Chemicals: Law and Practice (2013). Bergkamp, L. and N. Herbatschek, ‘Regulating Chemical Substances under REACH: The Choice Between Authorization and Restriction and the Case of Dipolar Aprotic Solvents’ (2014) Review of European Community and International Environmental Law 221–45. Environmental Defense Fund, ‘Toxic Ignorance: The Continuing Absence of Basic Health Testing for Top-Selling Chemicals in the United States’ (1997). Eriksson, J., M. Gilek , and C. Rudén (eds.), Regulating Chemical Risks: European and Global Challenges (2010). Hamilton, J. T., Regulation through Revelation: The Origin, Politics, and Impacts of the Toxics Release Inventory Program (2005). National Research Council, ‘Risk Assessment in the Federal Government: Managing the Process’ (1983). van Leeuwen, C. J. and T. G. Vermeire (eds.), Risk Assessment of Chemicals: An Introduction (2nd edn. 2007).

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chapter 27

Waste R egu l ation Natalie Jones and Geert van Calster

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27.2.1 Introduction 27.2.2 Centralized Versus Delegated 27.2.3 Unified Versus Fragmented 27.2.4 Integrated Versus Specific 27.3.1 Introduction 27.3.2 Definitional Aspects 27.3.2.1 Definition of Waste 27.3.2.2 Waste Hierarchy 27.3.2.3 Waste Streams and Waste Classifications 27.3.3 Management Principles 27.3.3.1 Reduction of Waste Generation 27.3.3.2 Treatment Near the Source 27.3.3.3 Standards of Waste Treatment 27.3.3.4 Prohibitions and Restrictions of Movement 27.3.3.5 Extended Producer Responsibility 27.3.4 The Move to Circular Economy Approaches

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27.1 Overview Waste management is an ongoing challenge for legal systems. The amount of waste generated globally continues to increase year after year, and new technologies create novel waste problems. Municipal solid waste alone comes to around 2 billion tonnes per year, and waste

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608 Natalie Jones and Geert van Calster generation is growing rapidly.1 In the face of this challenge, it is useful to explore how laws and regulations are dealing with waste management—an area which can be both technically and legally complex. In this chapter, we survey approaches to waste management law and draw comparisons and contrasts between the various models. For the purposes of this chapter, several salient axes of comparison have been chosen. These are of course not the only possible criteria. There are numerous potential points at which comparisons can be drawn—we could have looked at approaches to liability, duties, targets, enforcement, offences, and monitoring, for instance—and we have merely attempted to choose the most pertinent among these. The relevant points of interest will surely vary between authors and practitioners, but the points presented here are broad and varied so as to sketch a useful starting point. Nor is this chapter intended to be exhaustive of the waste management laws of every jurisdiction; several jurisdictions are used to illustrate the various comparative axes, including the European Union (EU), the United States, China, Japan, Australia, and New Zealand. Section 27.2 of this chapter considers what we have called the ‘macrostructures’ of waste management laws. The macrostructures concern the broad operation of the law: where the waste management law is located in relation to other environmental laws; whether it is chiefly located in one central waste statute or spread out over a number of statutes; and how responsibility is divided between federal and state governments (in a federal system) and national and local governments (in a unitary system). Section 27.3 turns to principles. We consider approaches taken to definitions of ‘waste’, to the waste hierarchy, waste streams, and extended producer responsibility. Finally, the emerging trend of circular economy approaches is explored. Any introduction to comparative waste law would be incomplete without mentioning the influence of international treaties and policy dialogues. The 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention) (controlling and limiting the movement of hazardous wastes), the 1972 London Dumping Convention (making dumping at sea illegal), and the 2001 Stockholm Convention (requiring the phasing out of the production and consumption of persistent organic pollutants) have all been formative for national waste laws. Agenda 21 was also highly influential in recognizing the importance of environmentally sound waste management practices.2 Its Chapter 21 urged governments to reduce waste generation by encouraging recycling in industrial processes, reducing product packaging, and introducing more environmentally friendly products. Among other things, it also called for establishing frameworks for integrated life-cycle product management, including minimizing waste, maximizing environmentally sound waste reuse and recycling, promoting environmentally sound waste disposal and treatment, and extending waste service coverage.3 In addition, the Organisation for Economic Co-operation and Development (OECD) has been very influential in the waste management sector, particularly in inspiring the EU’s waste management approach. The bottom line of EU waste law, as well as of OECD interest, is to combine a healthy business interest in the sector with the need to ensure proper 1 UNEP and ISWA, ‘Global Waste Management Outlook’ (2015), 52. 2 Report of the United Nations Conference on Environment and Development, A/CONF.151/26/Rev.l (Vol. l), Resolution 1, Annex 2: Agenda 21. 3 Chapter 21.4.

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Waste Regulation 609 environmental protection. The OECD introduced the concepts of, among others, extended producer responsibility and environmentally sound waste management.4

27.2 Macrostructures 27.2.1 Introduction Comparing macrostructures is important because it involves looking at waste laws in their wider context: the context of environmental law, the context of the jurisdiction’s legal system, and the context of constitutional divisions of responsibility between federal or national governments and state or local governments. Here we highlight three ways in which the broad structure of waste laws can be contrasted: centralized systems versus delegated systems (i.e. the division of responsibility between federal, state, and local governments); unified systems versus fragmented systems (i.e. the location of waste law within the legal system and how fragmented it is); and integrated versus specific systems (i.e. whether waste laws are integrated into general environmental laws or form a sui generis regime). Each of these three axes of comparison constitutes a spectrum and is subject to interpretation. Nevertheless, when seen together they are a useful starting point to gain an idea of the macrostructures of waste laws.

27.2.2 Centralized Versus Delegated One axis of comparison concerns the extent to which waste management is regulated centrally. At one end of the spectrum, significant authority is delegated to state, regional, or local governments, although broad principles or baselines might be set by the federal or national legislature and regulators. At the other end of the spectrum, waste management is tightly controlled by federal or national governments. An example of the latter is the US hazardous waste regime. Under the Resource Conservation and Recovery Act 1976 (RCRA) and its implementing regulations,5 the US federal government extensively regulates the generation, treatment, storage, and disposal of hazardous wastes. Although the delegated states have substantial authority under RCRA to enforce compliance with the regulations, the federal regulatory agencies ultimately set the rules and have significant enforcement powers. The EU is another example of a highly centralized system, albeit only at the level of identifying binding targets and procedural requirements. The Waste Framework Directive6 (Framework Directive) and the other directives concerning waste set baseline minimum standards, targets, and duties for Member States. Although the Member States have 4 1994 Phase 2 Framework Report; OECD, ‘Draft Recommendation of the Council on the Environmentally Sound Management (ESM) of Waste’ C (2004) 100, May 18 2004. 5 42 USC 82—Solid Waste Disposal, Subchapter III—Hazardous Waste; US Code of Federal Regulations, Title 40—Protection of Environment. 6 Framework Directive EC/2008/98 on Waste, 19 November 2008.

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610 Natalie Jones and Geert van Calster c onsiderable leeway in how they implement the directives—certainly more discretion than US states have under the hazardous waste rules—they are bound by their obligations at the EU level. Member States are obliged to, inter alia, develop national waste prevention programmes (Article 29), require permits for waste treatment (Article 23), and submit information to the European Commission (Article 33). In the United States, solid waste rules (unlike those for hazardous waste) are primarily implemented and enforced by states, rather than at the federal level. Although this is similar to the EU system in that some definition and standard-setting occurs at the federal level under the RCRA and its regulations,7 it is even more decentralized. Similarly, in Canada federal law only governs matters such as the export and import of hazardous waste, leaving solid waste management largely to the control of individual provinces.8 It appears that only a few waste streams—typically hazardous wastes—are subject to centralization across the board. Most waste streams are centralized only at the level of standards and targets—and sometimes not even then—leaving implementation and enforcement decentralized. In many jurisdictions local government authorities retain some degree of responsibility. In the EU, they typically retain responsibility for waste collection, particularly for household waste. Local authorities play a more substantial role in New Zealand, where they are to ‘promote effective and efficient waste management and minimisation within [their] district’ particularly through the adoption of waste management and minimization plans.9

27.2.3 Unified Versus Fragmented A second macrostructural axis of comparison is along the lines of whether waste laws are fragmented or unified: that is, whether waste law can be found in a number of different statutes or whether it is broadly united under one umbrella or one statute. An example of a fragmented approach can be found in New Zealand. Although the title of the Waste Minimisation Act 2008 would seem to indicate that it is the principal waste management statute, in reality the statutes which concern waste law also include the Environment Act 1986, the Resource Management Act 1991, the Hazardous Substances and New Organisms Act 1996, the Health Act 1956, and the Litter Act 1979.10 This ‘incoherent analytical framework’ is also due to a raft of rules, regulations, bylaws, accords, strategies, and guidance documents ‘which all deal with discrete and disparate topics’.11 In brief, this means that the New Zealand approach is ‘thwarted by considerable fragmentation and still lacking a unifying cradle-to-grave approach to waste’.12

7 42 USC 82—Solid Waste Disposal, Subchapter IV—State or Regional Solid Waste Plans. 8 See e.g. Canadian Environmental Protection Act 1999, SC 1999, c 33, Part 7, Division 8; Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations, SOR/2005-149; PCB Waste Export Regulations, SOR/90-453. 9 Waste Minimisation Act 2008, ss. 42 and 43. 10 S. A. Schofield, ‘Waste Management Law in New Zealand’ (2010) 14 New Zealand Journal of Environmental Law 223, at 223. 11 Ibid. 12 Ibid. Also see P. Birnie and A. Boyle, International Law and the Environment (Oxford: Oxford University Press, 3rd edn. 2009), 525.

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Waste Regulation 611 Particularly problematic effects of the fragmentation in New Zealand were pointed out by the OECD, first with respect to hazardous waste management where responsibility is currently unclearly divided and there is no statutory definition of hazardous waste.13 Secondly, the OECD noted that the relevant legislation mostly deals with the end-of-pipe part of the life cycle, with recycling, recovery, and prevention dealt with voluntarily.14 Moreover, the collection and transportation of waste is only subject to territorial licensing contracts and bylaws, rather than covered by national legislation or regulation.15 The New Zealand approach can be contrasted with that taken in many other jurisdictions. In both the EU and the United States, waste laws are unified to a substantial degree. In the EU, the Waste Framework Directive 2008 provides the central umbrella. Although there are a plethora of other directives and instruments, they are generally well integrated. More importantly, they all exclusively consider some aspect of waste law, rather than waste law being spread around directives concerning other areas of law. Similarly, the US approach is to regulate waste under the RCRA, a federal-level framework for both hazardous and solid waste management. Although the RCRA largely delegates solid waste management to the state level, it still constitutes a unifying framework, in contrasted to the fragmented New Zealand model.

27.2.4 Integrated Versus Specific A third macrostructural consideration is whether the waste management laws are relatively standalone, or whether they are deeply integrated within general environmental laws in the jurisdiction. Again, this is a spectrum. At the integrated end of the spectrum is South Australia, where waste is regulated under the statute which deals with environmental protection in general. The Environment Protection Act 1993 (the 1993 Act) lists certain ‘prescribed activities of environmental significance’ which require licensing under the 1993 Act,16 and waste management activities are included here: incineration, sewage treatment works, waste or recycling depots, activities producing wastes listed under Part B of Schedule 1, waste transport businesses, and composting works.17 But these activities are only some of the many activities listed under the 1993 Act. The 1993 Act also includes ‘waste’ in its definitions of ‘pollutant’ and ‘chemical substance’,18 meaning that waste is a cross-cutting issue throughout the statute: it recurs, for instance, in provisions concerning the unauthorized entry of pollutants into surface or underground water in a water protection area (section 64A). Despite being a general environmental statute, the 1993 Act does have one subpart dedicated to a specific kind of waste: beverage containers,19 which are subject to a specific litter control and waste management take-back scheme. Nevertheless, the South Australian waste laws are a good example of an integrated approach. 13 OECD, OECD Environmental Performance Reviews: New Zealand (2007), 56. Schofield, ‘Waste Management Law in New Zealand’, 259. 14 OECD, OECD Environmental Performance Reviews, at 20. 15 Schofield, ‘Waste Management Law in New Zealand’, at 258. 16 Environment Protection Act 1993, Sch. 1, ss. 36–47. 17 Ibid, Part A, subparts 3 and 6(3). 18 Ibid, s. 3. 19 Ibid., Part 8, Division 2.

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612 Natalie Jones and Geert van Calster A similar, yet slightly different approach is seen in New South Wales. Here again, activities related to waste are regulated alongside other activities affecting the environment under the Protection of the Environment Operations Act 1997 (the 1997 Act), the principal environmental protection legislation in New South Wales. Under Chapter 3 of the 1997 Act, environmental protection licences are required to authorize ‘scheduled activities’. The schedule, here again, includes activities such as chemical storage, composting, energy recovery, resource recovery, sewage treatment, waste disposal by application to land, waste disposal by thermal treatment, waste processing, waste storage, mobile waste processing, and the transportation of trackable waste.20 The 1997 Act also sets offences and penalties related to waste, including offences of: wilfully or negligently disposing of waste, or causing any substance to leak, spill or escape, ‘in a manner that harms or is likely to harm the environment’;21 polluting land;22 unlawful transporting or depositing of waste;23 using a place as a waste facility without lawful authority;24 and littering.25 However, in addition to this general environmental legislation, New South Wales also has a specific waste statute. At the opposite end of the spectrum, the EU and the United States both have relatively standalone waste management laws. In the EU, the Waste Framework Directive is the umbrella under which all other waste laws and regulations are placed. Although the Framework Directive is certainly informed by general principles of EU environmental law26 and necessarily interacts with other legislation (as, necessarily, any functioning piece of legislation must), and there are many other pieces of EU waste legislation, the EU approach clearly contrasts with the approaches taken in the Australian states. In the United States, too, the RCRA is a standalone statute dealing with waste, rather than waste being merely one matter contained in a broader environmental law.

27.3 Principles of Waste Management Law 27.3.1 Introduction Turning away from macrostructures, we now consider the principles which underpin waste management laws. The first type of principles are definitional in nature: the definition of waste, the waste hierarchy, and classifications of waste. Then, management principles are considered, including principles of reduction of waste generation, treatment near the source, standards of waste treatment, prohibitions and restrictions on the movement of waste, and extended producer responsibility. Finally, the move towards circular economy models is explored.

20 Protection of the Environment Operations Act 1997, Sch. 1, provisions 9, 12, 16, 34, 36, 39, 40, 41, 42, 47, and 48. 21 Ibid., ss. 115 and 116. 22 Ibid., s. 142A. 23 Ibid., s. 143. 24 Ibid., ss. 144 and 145. 25 Ibid., s. 145. 26 See in particular Art. 4(2), which incorporates general environmental principles.

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Waste Regulation 613

27.3.2 Definitional Aspects 27.3.2.1 Definition of Waste Defining ‘waste’ is a complex and fraught matter in many jurisdictions. Often, whether or not a substance is waste determines whether or not it is subject to a mass of rules and regulations which can involve significant costs for various actors. Needless to say, it is impossible to go into great detail on the definition of waste in the various regimes, but a few salient points can be selected for the sake of comparison. Key to the definition of waste in many jurisdictions is the concept of discarding or abandonment. For instance, the EU Waste Framework Directive defines waste as ‘any substance or object which the owner discards or intends or is required to discard’.27 The US definition refers to ‘garbage’, ‘refuse’, and ‘other discarded material’, terms which are not defined in the legislation.28 A key point of contention in many jurisdictions is whether or not recyclable materials, and materials subject to resource or energy recovery, are classified as waste. In the United States, if a material is recyclable it is not waste, because ‘to stigmatise recyclable secondary materials as waste [would be] a catalyst for community opposition’.29 New South Wales takes precisely the opposite approach: the definition of waste explicitly includes ‘any otherwise discarded, rejected, unwanted, surplus or abandoned substance intended for sale or for recycling, processing, recovery or purification’.30 The EU approach is more nuanced. Following significant amounts of litigation in the European Court of Justice (ECJ) on the definition of waste,31 the Framework Directive provided a new classification of ‘by-product’, which excludes substances and objects resulting from production processes from the definition of ‘waste’, and therefore the scope of the Directive, if their further use is certain, without any further processing, if they are produced as an integral part of a production process, and further use is lawful.32 Another innovation in the Directive is the provision for waste to cease to be waste upon undergoing recovery, including recycling, where certain conditions are fulfilled, including: the common use of the substance or object, the existence of a market or demand, the fulfilment of relevant technical requirements and applicable standards, and that the use of the substance or object will not lead to overall adverse environmental or human health impacts.33 Subsequently, regulations have been adopted setting out the criteria by which iron, steel, aluminium and copper scrap, and glass cullet cease to be waste.34 Unfortunately, these new

27 Article 3(1) Waste Framework Directive 2008. 28 42 USC 82, § 6903(27). 29 J. Smith, ‘The Challenges of Environmentally Sound and Efficient Regulation of Waste—The Need for Enhanced International Understanding’ (1993) 5(1) Journal of Environmental Law 91, at 96. 30 Protection of the Environment Operations Act 1997, Dictionary. 31 See e.g. Joined Cases C-304/94, C-330/94, C-342/94 and C-224/95 Euro Tombesi [1997] ECR I-3561; Case C-126/96 Inter-Environnement Wallonie v Regione Wallone [1997] ECR I-7411. See also D. Pocklington, The Law of Waste Management (London: Sweet & Maxwell, 2nd edn. 2011). 32 Article 5(1) Waste Framework Directive 2008. 33 Article 6 Waste Framework Directive 2008. 34 Regulation 333/2011, OJ [2012] L94; Regulation 1179/2012, OJ [2012] L337/31; Regulation 715/2013, OJ [2013] L201/14.

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614 Natalie Jones and Geert van Calster provisions have not been sufficient to remove the confusion surrounding the definition of waste in Europe, and have been much criticized.35 The South Australian Environmental Protection Act 1993, as amended by the Environment Protection (Waste Reform) Amendment Act 2017, takes a similar approach. Under section 4, waste is any discarded, dumped, rejected, abandoned, unwanted or surplus matter, whether or not intended for sale or for purification or resource recovery by a separate operation from that which produced the matter’ (emphasis added). But similarly to the ‘end of waste’ provisions in the EU Framework Directive, the 1993 Act introduces the concept of ‘resource recovery’ which involves reusing, recycling, or recovering energy or other resources from waste. The Act provides for a process allowing the state regulatory authority to declare that specified matter is an approved ‘recovered resource’, meaning that it is no longer waste for the purposes of the Act while it is in the process of recovery.36 Another point of comparison is the inclusion or exclusion of liquid and gaseous material. Some waste laws explicitly exclude liquids and gases: for instance, EU law excludes ‘gaseous effluents emitted into the atmosphere’ from the scope of the Framework Directive, amongst other exclusions.37 In the United States, by contrast, the definition of ‘solid waste’ explicitly includes ‘liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations’.38 In New South Wales, too, the definition of waste includes ‘any substance (whether solid, liquid or gaseous) that is discharged, emitted or deposited in the environment in such volume, constituency or manner as to cause an alteration in the environment’.39

27.3.2.2 Waste Hierarchy A significant common thread in waste laws is the concept of waste hierarchy. In some form or another, a waste hierarchy exists either explicitly or implicitly in the waste laws of many jurisdictions. A waste hierarchy is an ordering of waste management options which typically prioritizes prevention of waste, then reuse, recycling, other recovery (such as energy recovery), and finally disposal. The waste hierarchy aims to generate as little waste as possible, and to extract the maximum practical benefit of the waste that is still produced.40 Options for prevention include product prohibitions, voluntary consumer behaviour change, pricing (‘pay-as-you-throw’) mechanisms, and extended producer responsibility.41 Although its potential regarding minimizing environmental impacts and resource use has been questioned by some,42 it remains an influential philosophy and ordering concept.43 35 See e.g. G. van Calster, EU Waste Law (Oxford: Oxford University Press, 2nd edn. 2015). 36 Environment Protection Act 1993, ss. 4(2), 4A. 37 Article 2 Waste Framework Directive 2008. Evidently, these effluents are regulated via different parts of EU environmental law. 38 42 USC 82, § 6903(27). 39 Protection of the Environment Operations Act 1997, Dictionary. 40 A. Gillespie, Waste Policy: International Regulation, Comparative and Contextual Perspectives (Cheltenham: Edward Elgar, 2015), 3. 41 Ibid., at 4. 42 S. Van Ewijk and J. A. Stegemann, ‘Limitations of the Waste Hierarchy for Achieving Absolute Reductions in Material Throughput’ (2016) 132 Journal of Cleaner Production 122. 43 J. Tjell, ‘Is the “Waste Hierarchy” Sustainable?’ (2005) 23 Waste Management and Research 173; J. Hultman, ‘The European Waste Hierarchy: From the Sociomateriality of Waste to a Politics of Consumption’ (2012) 44 Environment and Planning A 2413.

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Waste Regulation 615 The waste hierarchy has been adopted in many jurisdictions. However, a difference among jurisdictions is seen in how many steps the hierarchy contains. In some models, the waste hierarchy contains just three stages. In New South Wales, for instance, the Waste Avoidance and Recovery Act 2001 states that one objective of the legislation is:44 to ensure that resource management options are considered against a hierarchy of the following order: (i) avoidance of unnecessary resource consumption, (ii) resource recovery (including reuse, reprocessing, recycling and energy recovery), (iii) disposal.

Reuse, reprocessing, recycling, and energy recovery are here placed at the same level of priority. Contrast this with the ordering found in the EU Waste Framework Directive:45 prevention, ‘preparing for reuse’, ‘recycling’, other recovery, for example, energy recovery, and disposal.46 The Japanese laws contain the same ordering.47 In other jurisdictions, such as New Zealand and South Australia the waste hierarchy contains a further step: treatment, which is prioritized after recovery and before disposal.48 The South Australian law contains a further step still, by dividing prevention into two stages: ‘avoidance of the production of waste’ and ‘minimisation of the production of waste’.49 This division recognizes that it is preferable that waste not be produced in the first place, but if waste production is inevitable, then it should be minimized. In Europe, the Framework Directive emphasizes that the waste hierarchy is flexible, and can be departed from for the purposes of reaching ‘the best overall environmental outcome’ rather than being rigid or prescriptive:50 Member States shall take measures to encourage the options that deliver the best overall environmental outcome. This may require specific waste streams departing from the hierarchy where this is justified by life-cycle thinking on the overall impacts of the generation and management of such waste.

The United States is an outlier here, in that the waste hierarchy is not explicitly included in key waste legislation. Rather, it is outlined by the Environmental Protection Agency

44 Waste Avoidance and Recovery Act 2001, s. 3(b). 45 Article 4(1) Waste Framework Directive. See also the definitions of these terms in Art. 3(13), (15), (16), (17), and (19). 46 Disposal is defined negatively in Art. 3(19): ‘any operation which is not recovery even where the operation has as a secondary consequence the reclamation of substances or energy. Annex I sets out a non-exhaustive list of disposal operations’. 47 2000 Fundamental Law for Establishing a Sound Material-Cycle Society—No. 110 of 2000. 48 South Australia: Environment Protection Act 1993, s. 4B(f); New Zealand: Waste Minimisation Act 2008, s. 44. Treatment is defined as ‘subjecting waste to any physical, biological, or chemical process to change its volume or character so that it may be disposed of with no or reduced adverse effect on the environment’: s. 5(1). See Schofield, ‘Waste Management Law in New Zealand’, at 255. 49 Environment Protection Act 1993, s. 4B(a) and (b). 50 Article 4(2) Waste Framework Directive.

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616 Natalie Jones and Geert van Calster (EPA) in guidance documents. The RCRA does not mention the hierarchy, merely emphasizing prevention:51 The Congress hereby declares it to be the national policy of the United States that, wherever feasible, the generation of hazardous waste is to be reduced or eliminated as expeditiously as possible. Waste that is nevertheless generated should be treated, stored, or disposed of so as to minimize the present and future threat to human health and the environment.

The EPA guidance places prevention and reuse at the same level, then recycling and composting, then energy recovery, then treatment and disposal.52 As we have discussed here, and as Gillespie notes, the waste hierarchy is ‘far from absolute’, and is implemented differently in different jurisdictions.53 It is a dynamic concept: it allows for interpretations of the mix of waste management options that should be adopted given a country’s environmental and economic circumstances.54

27.3.2.3 Waste Streams and Waste Classifications Another point of comparison is the treatment of different waste streams. In one model, a fundamental distinction is made between hazardous and solid wastes. This is clearly seen in the US RCRA, where the rules for hazardous and solid wastes are separated into two different legislative subchapters.55 As already discussed, hazardous wastes are extensively regulated at the federal level under the RCRA, whereas the management of other solid wastes is largely left to states. Contrast this with the EU Framework Directive, which contains rules prima facie applicable to all types of waste, and subjects hazardous waste to additional controls. Member States have general obligations which apply to all kinds of waste, including: to take necessary measures to ensure that waste undergoes recovery operations;56 to take measures to promote reuse and recycling, including measures to achieve certain targets;57 to ensure that waste disposal is conducted in accordance with the protection of human health and the environment;58 and to take measures to ensure that waste management is carried out without endangering human health or harming the environment.59 Certain articles of the Waste Framework Directive impose additional obligations concerning hazardous wastes, including provisions on control of hazardous waste, ban on mixing, and labelling.60 In addition to the fundamental distinction between hazardous wastes drawn (or not drawn), it is common for waste laws to include specific regimes for certain more specific waste streams. Packaging waste is one such waste stream. An EU Directive specifically

51 42 USC 82, § 6902(b). Also see Van Ewijk and Stegemann, ‘Limitations of the Waste Hierarchy for Achieving Absolute Reductions in Material Throughput’. 52 See e.g. EPA, ‘Waste Management Hierarchy and Homeland Security Incidents’ (16 September 2016), available at: http://www.epa.gov/homeland-security-waste/waste-management-hierarchy-andhomeland-security-incidents/. 53 Gillespie, Waste Policy, at 74–5. 54 Hultman, ‘The European Waste Hierarchy’. 55 Subchapter III deals with hazardous waste, while Subchapter IV deals with solid waste. 56 Article 10 Waste Framework Directive. 57 Ibid., Art. 11. 58 Ibid., Art. 12. 59 Ibid., Art. 13. Also see obligations in Arts. 14, 15, and 16. 60 Ibid., Arts. 17, 18, 19, and 20.

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Waste Regulation 617 regulating packaging and packaging waste was introduced in 1994.61 Other jurisdictions that have introduced specific regimes for packaging include Japan62 and South Australia.63 Other waste streams that are commonly subject to special regulation include end-of-life vehicles,64 batteries,65 electrical and electronic equipment, home appliances,66 food waste,67 construction waste,68 mining waste,69 and PCBs.70

27.3.3 Management Principles 27.3.3.1 Reduction of Waste Generation The principle of reduction of waste generation (otherwise known as ‘waste prevention’) can be found in many jurisdictions. Here, there are more commonalities than differences. Reduction is distinct from the principles regarding waste management: management occurs after the waste is generated, but reduction is about less waste being generated. In New Zealand, for instance, the purpose of the Waste Minimisation Act is ‘to encourage waste minimisation and a decrease in waste disposal’, in order to protect the environment from harm and provide environmental, social, economic, and cultural benefits.71 In this context, ‘waste minimisation’ is defined as the reduction of waste, and the reuse, recycling, and recovery of waste and diverted material.72 In the EU, the idea of waste reduction overlaps closely with the prevention principle. Prevention is at the top of the waste hierarchy,73 and Member States are obliged to have waste prevention programmes, with the aim to ‘break the link between economic growth and the environmental impacts associated with the generation of waste’.74 Prevention is defined as measures taken, before a substance, material or product becomes waste, that reduce the quantity of waste, its adverse impacts, or its content of harmful substances.75 The EU, though, has found it difficult to adopt binding and enforceable waste prevention targets. Waste reduction, termed ‘minimization’, is also at the heart of the RCRA provisions on hazardous waste. Under the RCRA, ‘the generation of hazardous waste is to be reduced or eliminated as expeditiously as possible’, while ‘[w]aste that is nevertheless generated should be treated, stored, or disposed of so as to minimize the present and future threat to human health and the environment’.76 The distinction between waste reduction and waste management can be clearly seen here. 61 Directive 94/62 of 20 December 1994 on packaging and packaging waste [1994] OJ L365/10. 62 Law for Promotion of Sorted Collection and Recycling of Containers and Packaging—No. 112 of 1995. 63 Environment Protection Act 1993, Part 8 Division 2—Beverage containers. 64 Directive 2000/53 [2000] OJ L269/34. Japan: Law Concerning Recycling Measures of End-of-life Vehicles—No. 87 of 2002. 65 Directive 2006/66, [2006] OJ L266/1. 66 Japan: Law for Recycling of Specified Kinds of Home Appliances—No. 97 of 1998. 67 Japan: Law Concerning the Promotion of Recycling Food Cyclical Resources—No. 116 of 2000. 68 Japan: Law Concerning Recycling of Materials from Construction Work—No. 104 of 2000. 69 EU Directive 2006/21 on the Management of Waste from Extractive Industries and amending Directive 2004/35, [2006] OJ L102. 70 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. 71 Section 3. 72 Section 5(1). 73 Article 4(1)(a). 74 Article 29. Also see Art. 30. 75 Article 3(12). 76 42 USC 82, § 6902(b).

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618 Natalie Jones and Geert van Calster Measures adopted to further the broad objective of waste reduction vary in nature. Targets are one approach—see those adopted by the EU.77 A waste disposal levy is another, such as that favoured by New Zealand.78 In the EU, Annex IV of the Waste Framework Directive lists examples of waste prevention measures, including awareness campaigns, product design measures, economic incentives, and labelling. These measures have been criticized for their non-binding and ‘vague and general’ character, as opposed to being an ‘active, integrated product policy’.79

27.3.3.2 Treatment Near the Source Some systems incorporate the proximity principle, according to which waste should be treated or disposed of near its source. The EU exemplifies this approach. Article 16 of the Waste Framework Directive sets out the principles of self-sufficiency and proximity. Member States have a duty to take appropriate measures to establish an ‘integrated and adequate’ network of disposal and recovery installations, designed to enable the European Union as a whole and Member States individually to become self-sufficient in waste disposal and recovery, and to enable waste to be disposed or recovered in ‘one of the nearest appropriate installations, by means of the most appropriate methods and technologies, in order to ensure a high level of protection for the environment and public health’. The Australian state of New South Wales incorporated the proximity principle in a different way. The Protection of the Environment (Waste) Regulation 2014 included an offence of transporting any waste by road more than 150 kilometres from where it was generated, with several defences including the transportation of waste for ‘lawful and genuine’ recycling, recovery or reuse.80 However, following significant difficulties in policing this law,81 a proposal to abolish the proximity principle has been introduced.82 Other jurisdictions appear not to incorporate the proximity principle in waste management law. Among these are the United States, New Zealand, and other Australian states.

27.3.3.3 Standards of Waste Treatment Standards of waste treatment vary among jurisdictions. They are often complex, involving large amounts of regulation. It is common for emissions standards to exist, regulating the maximum levels of emissions of various pollutants that may be released in the process of waste management and disposal. In the United States, these standards are set by the federal government, although states may set more stringent requirements.83 In the EU, the concept 77 European Commission, ‘Closing the Loop: An EU Action Plan for the Circular Economy’, COM(2016) 614. 78 Waste Minimisation Act 2008, Part 3. 79 L. Krämer, EU Environmental Law (London: Sweet & Maxwell, 8th edn, 2016), 377. 80 Clause 71. 81 C. Meldrum-Hannah, D. Richards, and A. Davies, ‘Organised Network Shifting Waste to “Dump Capital of Australia” to Avoid Tariffs’ ABC, 5 September 2017, available at: http://www.abc.net.au/ news/2017-08-07/four-corners-australias-organised-waste-trade/8782866. 82 Protection of the Environment Operations Legislation Amendment (Waste) Regulation 2017, public consultation draft; NSW EPA, ‘Reforms to the Construction Waste Recycling Sector: Explanatory Paper’ (2017). 83 See e.g. 40 CFR 1, Subchapter C, Part 60—Standards of Performance for New Stationary Sources; 40 CFR 1, Subchapter C, Part 63, Subpart AAAA—National Emission Standards for Hazardous Air Pollutants: Municipal Solid Waste Landfills.

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Waste Regulation 619 of ‘best available techniques’ is central to setting emission limit values.84 Reference documents on best available techniques, known as BREFs, are the main source of reference for Member States on the applicable standards.85 Other types of standards which often exist relate to design and technology standards, location restrictions, monitoring, and operating criteria.86

27.3.3.4 Prohibitions and Restrictions of Movement Common to many systems is some form of restriction on the movement of waste, particularly hazardous waste. Trade in waste, particularly from developed countries to developing countries, became an issue in the 1980s.87 Following the 1989 adoption of the Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (Basel Convention),88 many states introduced export and import restrictions. 186 states are parties to the Basel Convention. In addition, there are regional conventions which prohibit, rather than merely restrict, hazardous waste exports and imports. Furthermore, some systems have controls on the internal movement of waste, not merely movement across borders. Prior to the Basel Convention’s adoption, early impetus was provided by the United States, the EU, and the OECD. In the United States, the Resource Conservation and Recovery Act was amended in 1984 to provide that exports of hazardous waste were prohibited, unless the United States provided notification in advance of shipment to the receiving country, who in turn consented to accept the hazardous waste.89 The OECD adopted this ‘notification and consent’ approach to govern trade in hazardous waste between OECD countries, and later extended it to cover hazardous waste trade between OECD and non-OECD countries.90 It also prohibited the movement of hazardous waste to a non-OECD country unless the waste was ‘directed to an adequate disposal facility in that country’. Similarly, the EU adopted the notification and consent approach in 1984.91 The Basel Convention takes the approach of regulating, rather than prohibiting, the movement of hazardous waste across borders.92 Following the approach adopted by the United States, EU, and OECD, there must be full and informed consent by the importing country to each shipment of hazardous waste.93 The exporting and importing countries must take all appropriate measures to ensure the waste is disposed of in an environmentally 84 Articles 14(3) and 15. 85 See e.g. Waste Incineration BREF, 2006; Waste Treatment Industries BREF, 2006. 86 In the United States, see e.g. 40 CFR 1, Subchapter 1, Part 264—Standards for Owners and Operators of Hazardous Waste Treatment, Storage and Disposal Facilities; 40 CFR 1, Subchapter 1, Part 258— Criteria for Municipal Solid Waste Landfills; 40 CFR 1, Subchapter 1, Part 66—Standards for the Management of Specific Hazardous Wastes and Hazardous Waste Management Facilities. In the EU, see e.g. Council Directive 1999/31/EC of April 26, 1999 on the landfill of waste, [1999] OJ 1182.1; Council Decision 2003/33/EC of December 19, 2002 establishing criteria and procedures for the acceptance of waste at landfills pursuant to Art. 16 and Annex II to Directive 1999/31/EC, [2003] OJ L11/27. 87 Gillespie, Waste Policy, at 19. 88 1673 UNTS 126, adopted 22 March 1989, entered into force 5 May 1992. 89 Section 262(52). 90 OECD, Decision-Recommendation C(83)180/FINAL on Transfrontier Movements of Hazardous Wastes (1 February 1984); Resolution C(85)100 on International Co-Operation Concerning Transfrontier Movements of Hazardous Waste (20 June 1985) and Decision-Recommendation C(86)64/FINAL on Exports of Hazardous Wastes from the OECD Area (5 June 1986). 91 EC Directive 84631/EC, 20 December 1984 on Transfrontier Shipment of Hazardous Waste. 92 Except the general prohibition on the export of hazardous waste to Antarctica: Art. 4(6). 93 Article 4(1).

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620 Natalie Jones and Geert van Calster sound manner.94 In addition, there are requirements around packing, labelling, tracking, monitoring and insurance coverage.95 If the terms of the consent are not followed, the waste must be re-imported by the exporting country.96 The implementation of the Basel Convention can be seen in many domestic systems. In the EU, for instance, Articles 17 to 20 of the Waste Framework Directive require Member States to take action to ensure traceability of hazardous waste from production to final destination.97 The Basel Convention approach, in practice, has led to more hazardous waste being shipped from developing countries to developed countries than vice versa—a reversal of the previous trend.98 Some jurisdictions go further than the Basel Convention, prohibiting trade in hazardous waste altogether. In Africa and the Pacific, the Bamako Convention and the Waigani Convention respectively prohibit the importation of any hazardous waste for disposal.99 In general, movements of waste within states tend to be less regulated. For example, in the EU, shipments within a Member State are only required to be subject to a monitoring system100 although some of the Union’s federal Member States (including Belgium and Germany) have provisions restricting the intra-Member State movement of waste.

27.3.3.5 Extended Producer Responsibility Approaches taken to extended producer responsibility are perhaps one of the most interesting points of comparison. Founded upon the polluter-pays principle, which itself is incorporated into waste management laws in many jurisdictions,101 extended producer responsibility is the concept of assigning long-term environmental responsibility for products to producers. It is an attempt to internalize the waste externalities of the product and provide market incentives to convert the linear ‘cradle-to-grave’ production and distribution chain into a ‘cradle-to-cradle’ system—an ‘ecological extension of product liability law’.102 Extended producer responsibility regulation is focused on how products are designed, marketed, used, and disposed of—their full life-cycle impacts.103 Extended producer responsibility has been implemented mainly through take-back schemes, which require manufacturers to take back and recycle their products after consumer

94 Article 4(2)(f), (8). 95 See e.g. Art. 4(7)(b). 96 Articles 4(3) and 9(1)–(4). 97 Also see Regulation 1013/2006. 98 J. Baggs, ‘International Trade in Hazardous Waste’ (2009) 17 Review of International Economics 1. 99 Bamako Convention on the ban on the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa, 30 ILM 773, signed 30 January 1991, entered into force 22 April 1998. 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 (Waigani Convention), 2161 UNTS 91, signed 16 September 1995, entered into force 21 October 2001. 100 Articles 1(5) and 33 Regulation 1013/2006. 101 South Australia Environment Protection Act 1993, s. 5C; Article 14 Waste Framework Directive. 102 N. Sachs, ‘Planning the Funeral at the Birth: Extended Producer Responsibility in the European Union and the United States’ (2006) 30 Harvard Environmental Law Review 51, at 53. Though Sachs thinks these claims are overstated: at 54–5. 103 A. Austen, ‘Where Will All the Waste Go? Utilising Extended Producer Responsibility Framework Laws’ (2013) 6 Golden Gate University Environmental Law Journal 178; R. Lifset, ‘Extended Pro ducer Responsibility’ (2013) 17 Journal of Industrial Ecology 162; L. Gui, ‘Implementing Extended Producer Responsibility’ (2013) 17 Journal of Industrial Ecology 167.

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Waste Regulation 621 use or pay a fee to an organization that will collect and recycle the products. Other forms of extended producer responsibility include deposit/refund schemes, labelling schemes, and product design schemes. The 1991 German Packaging Ordinance was a pioneer of extended producer responsibility,104 regulating the materials used for packaging and providing for producer responsibility for collection and recycling of discarded packaging. From Germany, extended producer responsibility quickly spread. An OECD study in 2014 found that over 400 schemes were in place across the OECD and developing countries.105 A fundamental distinction can be drawn between systems which provide for extended producer responsibility and those which do not. A leading example of the former is the EU; the latter, the United States. In the EU, Article 8 of the Framework Directive enshrines extended producer responsibility. It provides that Member States may adopt extended producer responsibility measures, which may include take-back measures, labelling, and product design schemes, although it notes that Member States must respect the need to ensure the proper functioning of the internal market. The EU has also adopted extended producer responsibility directives regarding certain waste streams. The 1994 Packaging and Packaging Waste Directive, modelled after the German Packaging Ordinance, requires Member States to adopt appropriate measures to prevent the production of packaging, and to develop reuse and recycling systems to reduce packaging waste.106 Similarly, the Waste Electrical and Electronic Equipment Directive shifts responsibility for collecting, reusing, and recycling electronic waste to manufacturers;107 and the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Directive imposes restrictions on using hazardous substances in electrical products. Relevant directives also exist for end-of-life vehicles108 and batteries and a ccumulators.109 These directives have served as models for other jurisdictions to follow. Japan has adopted extended producer responsibility schemes for packaging, end-of-life vehicles, electrical equipment, and home appliances,110 though its electrical equipment scheme is even more stringent than the corresponding scheme in the EU as it includes an enforced consumer responsibility for returning products for recycling.111 Australia has a national television and computer recycling scheme whereby importers and manufacturers must be part of collective

104 ‘Regulation on the Avoidance of Packaging Waste’ (1992) 31 ILM 1135. A. Halper, ‘Germany & Solid Waste Disposal System: Shifting the Responsibility’ (2001) 14 Georgetown International Environmental Law Review 135, at 136 (2001). 105 OECD, ‘Global Forum on the Environment: Promoting Sustainable Materials Management Through Extended Producer Responsibility’ (2014). 106 Directive 94/62/EC (20 December 1994) on Packaging and Packaging Waste [1994] OJ L365/10. 107 Directive 2012/19/EU (4 July 2012) on Waste Electrical and Electronic Equipment. 108 Directive 2000/53/EC, 18 September 2000, on End-of-Life Vehicles. 109 Directive 2006/66/EC (6 September 2006) on Batteries and Accumulators. 110 Law for Promotion of Sorted Collection and Recycling of Containers and Packaging—No. 112 of 1995; Law Concerning Recycling Measures of End-of-life Vehicles—No. 87 of 2002; Law for Recycling of Specified Kinds of Home Appliances—No. 97 of 1998. 111 P. Ghisellini, C. Cialani, and S. Ulgiati, ‘A Review on Circular Economy: The Expected Transition to a Balanced Interplay of Environmental and Economic Systems’ (2016) 114 Journal of Cleaner Production 11, at 16.

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622 Natalie Jones and Geert van Calster take-back arrangements,112 and New South Wales and South Australia both have legislated for take-back schemes for beverage containers.113 Under the US approach, by contrast, there is no federal mandate for extended producer responsibility schemes. Although the US federal laws are aggressive in regulating hazardous wastes, and may for instance qualify many e-wastes as hazardous waste to be disposed of in sanitary landfill or by incineration instead of recycling, they tend to focus on the waste disposal process rather than the production process.114 It is unlikely that this situation will change, as the RCRA does not give federal regulatory authorities the mandate that would be required.115 According to Sachs, this divergence in approach between the EU and United States is the result of different policy focuses. In the United States, environmental law focuses on mitigating externalities from production processes, but has a ‘glaring gap’ relating to externalities from products themselves; the EU has focused more on product externalities as well as production externalities.116 Despite the deficit at the US federal level, some US states have take-back schemes for certain electronic waste, pharmaceuticals, batteries, and containers. In addition, many businesses and municipalities have voluntary take-back programmes.117 The development of EPR schemes has also been seen in Canadian provinces, despite the similar lack of federal regulation.118 An approach midway between extended producer responsibility and no extended producer responsibility is ‘shared responsibility’: the idea that manufacturers and importers, the community, and government share the responsibility for waste management. Such an approach can be found in the New Zealand Waste Minimisation Act 2008,119 the Brazilian National Policy for Solid Waste,120 and the New South Wales Waste Avoidance and Recovery Act 2001.121 112 Australian Government, ‘National Waste Policy: Less Waste, More Resources’ (November 2009). 113 New South Wales, Waste Avoidance and Recovery Act 2001, Part 5; South Australia, Environment Protection Act 1993, Part 8 Division 2. 114 H.-H. Wu, ‘Legal Development in Sustainable Solid Waste Management Law and Policy in Taiwan: Lessons from Comparative Analysis Between EU and U.S.’ (2011) 6 National Taiwan University Law Review 461, at 472–3. 115 Ibid., at 485. 116 Sachs, ‘Planning the Funeral at the Birth’, at 51, 55. Also see M. Short, ‘Taking Back the Trash: Comparing European Extended Producer Responsibility to U.S. Environmental Policy and Attitudes’ (2004) 37 Vanderbilt Journal of Transnational Law 1217. 117 Product Stewardship Institute, ‘U.S. State EPR Laws’, available at: http://www.productstewardship. us/?State_EPR_Laws_Map. 118 J. Benidickson, Environmental Law (Toronto: Irwin Law, 4th edn. 2013), 341; Canadian Council of Ministers of the Environment, ‘Canada-Wide Action Plan for Extended Producer Responsibility’ (29 October 2009). 119 Section 8(1): the legislation encourages ‘the people and organisations involved in the life of a product to share responsibility for (a) ensuring there is effective reduction, reuse, recycling or recovery of the product; and (b) managing any environmental harm arising from the product when it becomes waste’. 120 Articles 3 and 6 Federal Law No 12.305; see H. F. Más, Transplanting EU Waste Law: The European Waste Electrical and Electronic Equipment Directives as a source of inspiration to Brazilian Law and Policy (PhD thesis, University of Groningen, 14 November 2016). 121 Section 3(e): object of legislation ‘to ensure that industry shares with the community the responsibility for reducing and dealing with waste’.

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Waste Regulation 623 In some jurisdictions, there is legislation providing for the possibility of extended producer responsibility schemes, but no such scheme has yet been implemented. In New Zealand, for instance, Part 2 of the Waste Minimisation Act 2008 gives the Minister for the Environment authority to develop ‘product stewardship’ schemes, following public consultation, which may include take-back schemes, deposit/refund schemes, labelling schemes, and product design schemes.122 However, in practice, New Zealand ‘does not invoke extended producer responsibility schemes, preferring to leave most recycling to the market, not the original producers of the waste’.123 Similarly, in New South Wales the Waste Avoidance and Recovery Act 2001 provides for the possibility of extended producer responsibility schemes to be implemented via regulation, but no such regulations have so far been promulgated.124

27.3.4 The Move to Circular Economy Approaches An increasing trend in the last decade has been the move towards circular economy models. Although the concept of ‘circular economy’ is itself a ‘narrative frame’ subject to interpretation,125 here it is generally understood to mean the closing of materials-cycle loops to turn waste into a resource, including by using outputs from one manufacturing process as inputs for another, which increases resource efficiency and reduces and waste generation.126 The shift towards a circular economy model has been particularly notable in the EU. A series of high profile policy documents are relevant here. These include the Seventh Environmental Action Plan;127 the Europe 2020 Strategy;128 the Roadmap to a Resource Efficient Europe;129 and most recently, the June 2014 Communication ‘Towards a Circular Economy: A Zero Waste Programme for Europe’ (which additionally has led to proposed amendments to a variety of individual waste directives).130 A common thread throughout these documents is recognizing waste as a commodity and as an important source of energy. In line with the Framework Directive, these instruments aim at creating a more competitive EU market for recycling and recovery, using waste as a resource to relieve the pressure on finite raw materials. Waste prevention, too, ranks high in the policy priorities. This is an area where the EU is having difficulties with the introduction of binding targets. The EU adopted a new circular economy package at the end of 2015.131 The key elements of this package include: a common EU target for recycling 65 per cent of municipal waste 122 Waste Minimisation Act 2008, s. 23. 123 Gillespie, Waste Policy, at 2. Also see Schofield, ‘Waste Management Law in New Zealand’, at 231; H Wagener, ‘The Waste Minimisation Act 2008 and the Ability of Territorial Authorities to Manage Solid Waste Discharges’ (2009) 13 New Zealand Journal of Environmental Law 295, 362. 124 Waste Avoidance and Recovery Act 2001, ss. 15–17. 125 W. McDowall, Y. Geng, B. Huang et al., ‘Circular Economy Policies in China and Europe’ (2017) 21 Journal of Industrial Ecology 651, at 655. 126 J. A. Mathews and H. Tan, ‘Lessons from China’ (2016) 531 Nature 440, at 441. 127 EP and Council Decision 1386/2013, OJ [2013] L354/171. 128 Communication from the Commission ‘Europe 2020: a Strategy for Smart, Sustainable and Inclusive Growth’, COM(2010) 2020. 129 Communication from the Commission on a ‘Roadmap to a Resource Efficient Europe’, COM (2011) 571. 130 COM(2014) 398. 131 European Commission, ‘Closing The Loop: An EU Action Plan for the Circular Economy’, COM(2016) 614.

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624 Natalie Jones and Geert van Calster by 2030; a common EU target for recycling 75 per cent of packaging waste by 2030; a binding landfill target to reduce landfill to a maximum of 10 per cent of municipal waste by 2030; a ban on landfilling of separately collected waste; the promotion of economic instruments to discourage landfilling; simplified and improved definitions and harmonized calculation methods for recycling rates throughout the EU; concrete measures to promote reuse and stimulate industrial symbiosis, turning one industry’s by-product into another’s raw material; and economic incentives for producers to put greener products on the market and support recovery and recycling schemes. The package implies the amendment of a wide range of the secondary legislation, in particular the Framework Directive; the packaging waste and landfill Directives; and the WEEE Directive. The Netherlands presidency of the EU in the first half of 2016 worked hard to make progress on the detailed discussion, and at the time of writing a provisional agreement has been reached between Council and EP on the final texts of all parts of the package. The EU, however, is not the pioneer in circular economy approaches; rather, China and Japan have been the role models in this regard.132 China, for the past decade, has ‘led the world in promoting the recirculation of waste materials through setting targets and adopting policies, financial measures and legislation’.133 The shift in China followed the issuance of a policy paper by China’s State Council in 2005, acknowledging the circular economy as a means to deal with the economic and environmental risks of resource exploitation.134 Subsequently, a whole chapter of China’s 11th Five-Year Plan (for 2006–10) was devoted to the circular economy, a 2008 Circular Economy Promotion Law obliged local and provincial governments to consider circular economy issues in their investment and development strategies and created targets for the coal, steel, electronics, chemical, and petrochemical industries, the circular economy was upgraded to a national development strategy in the 12th Five-Year Plan (for 2011–15), and the 13th Five-Year Plan (for 2016–20) continues this approach.135 The Chinese and EU circular economy approaches are similar in some ways, yet different in others. They share a concern with waste and with raw materials and resource efficiency.136 However, a key difference is that EU policies focus more on consumption and product design, including product durability, repairability, recyclability, and labelling, whereas the Chinese measures focus more on increasing efficiency and reducing waste and pollution in specific manufacturing sectors.137 In addition, China’s circular economy policy tends to be top-down, whereas in the EU it is more bottom-up.138

27.4 Concluding Remarks Having reviewed the structures and principles of waste management law, it is difficult to judge whether one country’s approach is necessarily preferable to that of another. All have 132 For Japan, see the 2000 Fundamental Law for Establishing a Sound Material-Cycle Society—No. 110 of 2000. Also see A. Levillain and S. Matsumoto, ‘Circular Economy and Waste Management: A Comparative Study between Japan and France’ (2017) 1 Journal of Waste Management and Environmental Issues 108. 133 Mathews and Tan, ‘Lessons from China’, at 441. 134 Ibid. 135 Ibid. 136 McDowall et al., ‘Circular Economy Policies in China and Europe’, at 655. 137 Ibid. 138 Ghisellini et al., ‘A Review on Circular Economy’, at 18.

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Waste Regulation 625 developed in response to context-specific economic pressures and incentives. All, clearly, have room for improvement. The continual increase in the amount of waste generated globally suggests that in general, the world’s waste management laws are not achieving their full potential. The rise of extended producer responsibility in many jurisdictions is a promising development towards waste reduction and prevention. Where there is no national or federal-level regulation of this sort, this appears to be an obvious gap which could be filled by legislators. Further, the increasing prominence of circular economy approaches over the last fifteen years indicates that waste is becoming a resource, at least to some extent and in some jurisdictions. However, there is a lot further to go in order to realize the ideals of the circular economy.

27.5 Select Bibliography European Commission, Closing the Loop: An EU Action Plan for the Circular Economy, COM (2016) 614. Gillespie, A., Waste Policy: International Regulation, Comparative and Contextual Perspectives (Cheltenham: Edward Elgar, 2015). Mathews, J. A. and H. Tan, ‘Lessons from China’ (2016) 531 Nature 440. Sachs, N., ‘Planning the Funeral at the Birth: Extended Producer Responsibility in the European Union and the United States’ (2006) 30 Harvard Environmental Law Review 51. Schofield, S. A., ‘Waste Management Law in New Zealand’ (2010) 14 New Zealand Journal of Environmental Law 223. Van Calster, G., EU Waste Law (Oxford: Oxford University Press, 2nd edn. 2015).

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chapter 28

Con ta m i nated Site s Emma Lees

28.1 Overview

626

28.2 Unity of Aim?

629

28.3 The Definition of Contamination

630

28.4 Liability

634

28.5 Models for Remediation

637

28.6 Concluding Remarks

639

28.7 Select Bibliography

640

Annex—Tables for Comparison

640

28.1 Overview Most countries with a history of industrial production, or with strong manufacturing sectors, experience problems with contamination of soil and the pollution of land and groundwater. This is both an ongoing and an historical problem. The methods of dealing with these two temporal dimensions of site pollution differ: ongoing pollution is typically a matter for environmental licensing; for regulations preventing polluting activities;1 or for civil2 or criminal liabilities for polluting acts.3 Historical pollution tends to be a question of retrospective liability and risk assessment. This chapter focuses on models of regulation for historical pollution of sites. It does so by considering various elements of such regulatory ‘models’, commencing with the aim of contaminated land regulations, before drawing these 1 See the contribution by B. Lange in this volume. 2 See the contribution by D. Howarth in this volume. 3 See my chapter on the intersection between criminal law and environmental law in this volume.

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contaminated sites 627 threads together to consider whether some aspects of these regulatory options sit comfortably as part of a whole ‘package’. In basic terms, contaminated sites are dealt with as follows. First, the state establishes regulations, or ‘hijacks’ existing regulatory interventions, to allow for the identification of (relevantly) polluted sites. It is necessary to define ‘pollution’ or ‘contamination’ for this purpose, and to establish an approach to the concept of environmental harm being employed. The resultant definition must contend with scientific uncertainty, risk, and precaution.4 Second, the state must establish the liability approach by which it establishes (a) who is responsible to carry out the clean-up of the site and (b) who is liable for the cost of so doing, against a background of historical causation. In doing this, the state confronts and reveals its understanding of the polluter-pays principle,5 and engages the rights and responsibilities of owners of land in relation to the environment.6 Third, the state then establishes the degree to which the site must be cleaned up, in line with concerns of justice, fairness, and proportionality, as well as risk and precaution. The normative understandings which each regime represents are as important as its technical response to the specific problem of historically polluted soil. When considering these regulatory approaches, it is important to recognize that not all states have established bespoke or specific frameworks for dealing with polluted sites. Some regulate the matter as part of wider regimes dealing with environmental damage. Others utilize civil liability rules, such as nuisance, to regulate the problem through private law. Others still utilize their planning or land use systems to carry out the necessary clean-up. In these latter cases, the regimes tend to cover pollution controls in an uneasy and uncomfortable way given the twin problems of causal ambiguity7 and retroactivity of regulation.8 It is 4 For analysis of the ‘robustness’ of definitions in the face of such issues in the context of environmental criminal law, see E. Lees, Interpreting Environmental Offences (Oxford: Hart Publishing, 2015). 5 For analysis of the meaning of the polluter-pays principle as both an economic and a legal principle, see Organization for Economic Cooperation and Development (OECD), ‘Guiding Principles Concerning International Economic Aspects of Environmental Policies, annex, Doc. C(72)128’ (26 May 1972); S. E. Gaines, ‘The Polluter Pays Principle: from Economic Equity to Environmental Ethos’ (1991) 26 Texas International Law Journal 463, at 468; C. Stevens, ‘Interpreting the Polluter Pays Principle in the Trade and Economic Context’ (1994) 27 Cornell International Law Journal 577, at 578; N. de Sadeleer, Environmental Principles—From Political Slogans to Legal Rules (Oxford: Oxford University Press, 2005), 34; N. de Sadeleer, ‘Polluter-Pays, Precautionary Principles and Liability’ in G. Betlem and E. Brans (eds.), Environmental Liability in the EU: The 2004 Directive Compared with US and Member State Law (London: Cameron May, 2006), 89; M. Lee, M., ‘ “New” Environmental Liabilities: The Purpose and Scope of the Contaminated Land Regime and the Environmental Liability Directive’ (2009) 11 Environmental Law Review 264, at 267. 6 E. Lees, ‘Remediation of Contaminated Land: The Polluter Pays Principle and Stewardship’ in P. Martin et al., Towards a Jurisprudence of Implementation (Cheltenham: Edward Elgar, 2015). 7 See G. Walker et al., ‘Industrial Pollution and Social Deprivation: Evidence and Complexity in Evaluating and Responding to Environmental Inequality’ (2005) 10 Local Environment 361, as discussed in O. Pedersen, ‘Environmental Justice in the UK’ (2011) 31 Legal Studies 279, at 288 for an example of one such causal difficulty, i.e. the difficulty in proving the relationship between a polluting facility and harm. In addition, there will also be problems ascribing causal liability for historical pollution given the chain of connected acts usually involved. For an example of this tension in practice, see R (Crest Nicholson) v Secretary of State for the environment [2010] EWHC 1561 (Admin), [2011] Env LR 1. 8 See J. Gardner, ‘Rationality and the Rule of Law in Offences Against the Person’ (1994) 53 Cambridge Law Journal 502.

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628 emma lees therefore possible to postulate that bespoke regimes are more suited to balancing ‘clean-up versus fairness’ concerns in the context of historical pollution. However, given that bespoke contaminated land regimes, almost by definition, involve such retroactive regulation to remediate sites, possibly giving rise to obligations which fall upon someone other than the original polluter, they are generally both controversial and unusual within national legal systems. This, in turn, has a tendency to make bespoke regimes somewhat complex and technical. In an attempt to strike an appropriate balance between rule of law and environmental concerns, many regimes fall back on scientific guidance as their driving force, notwithstanding the high degree of judgement and discretion underpinning such guidance.9 Furthermore, there is a huge variety of global approaches to the question of contamination—despite in the aim in all cases being largely the same—and the response has been, at least historically, rather patchwork and complex. This makes comparative study of the rules regarding the clean-up of contaminated sites problematic: either the analysis is so generalized that comparison loses its analytical merit, or so technical that it is difficult to see the overall structure of the regime for the detail of its operation. The goal of this chapter therefore is to overcome these challenges, to examine not only the technical and design-based points of comparison, but also to keep in mind the normative premises upon which such design decisions are based. It argues that design decisions in relation to polluted site regulatory mechanisms are, fundamentally, questions about the state’s view as to the fundamental importance of clean soil and groundwater in the context of land ownership, such that those states which view this issue through the lens of development, tend to focus on risk assessment as a measure for remediation and as a definition of harm, but also see that the owner of land receives a significant windfall in cases where liability falls solely onto a historical polluter. By contrast, those states which see the question of contamination as being an ‘environmental’ question, so that the land must be remediated whether or not that produces a barrier to ongoing development, also see contaminated land as being a question of polluter responsibility for harm caused such that the principles of environmental protection require that person to clean up the land even though it was not unlawful to allow the relevant substances to enter the land at the time. Therefore, whilst there are myriad precise models which can be adopted in order to regulate contaminated sites, the fundamental decision is this: why does land need to be remediated—is it a question of un-doing environmental harm, or is it a question of making land safe for ongoing and future use? In order to demonstrate this, section 28.2 commences the discussion with analysis of the unity of aim, or otherwise, shared by different regimes. Section 28.3 then considers the various possible definitions of ‘contamination’; section 28.4 the question of liability; and section 28.5, models of remediation. Section 28.6 then draws together some conclusions as to the fundamental issues underpinning the choices made in the states considered.

9 For discussion of the role of science in relation to environmental adjudication see E. Lees, ‘Allocation of Decision-Making Power under the Habitats Directive’ (2016) 28 Journal of Environmental Law 191; P. Ky, ‘Qualifications, Weight of Opinion, Peer Review and Methodology: A Framework for Understanding the Evaluation of Science in Merits Review’ (2012) 24 Journal of Environmental Law 207; J. McEldowney and S. McEldowney, ‘Science and Environmental Law: Collaboration Across the Double Helix’ (2011) 13 Environmental Law Review 169.

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contaminated sites 629

28.2 Unity of Aim? First, therefore, there is a need to recognize that the precise goal of the regime in question, and in particular, the state’s perspective as to why clean soil is important, affects the methods used to regulate contamination of sites and, as will be seen, is the most crucial choice made in terms of regulatory model. It is with this aim, therefore, that comparative analysis must commence. Furthermore, in post-industrial countries, the need to remediate land which was polluted in the nineteenth and early twentieth centuries produces different regulatory solutions and attitudes than in developing or industrial countries where the timescales are shorter. Finally, divergence can also be explained by reference to different legal cultures and their understanding of how land ownership affects the responsibility of the landowner to ensure their land is in ‘good condition’, contrasted with those states whose focus is, in essence, on the polluter-pays principle as a guiding principle of environmental liability. Thus, in distilling the essence of regulatory approaches, it is possible to see how these complexities can be modulated through the different parameters of regulation. Despite all this complexity however, in its most basic sense, there is a unified aim which underpins every regulatory regime designed to tackle contaminated land. The goal is to clean up soil which, as a result of activities carried out on this or on neighbouring land, has become polluted. There is almost no divergence in this general principle and therefore what the rules are designed to achieve, in this basic sense, is consistent. This can be contrasted with regulation of waste, for example, where some would seek to minimize the production of waste, others minimize the harm which waste causes.10 The question becomes about ‘how’, and ‘how much’ not, for the most part, about ‘why’, at least on its face. However, answers to the ‘how’ issue, soon reveal that the simplicity of the general aim is beset with uncertainties and thus, divergences appear. On closer inspection of the variety of systems which exist to clean up contaminated land and groundwater, it becomes clear that the broad clean-up aim, when modulated through the specific needs and goals of a particular state, is modified just enough to explain difference in outcome and in technique employed. In particular, the question as to what constitutes ‘clean’ soil and when pollution is sufficiently serious to warrant intervention, vary. Furthermore, the state perspective as to why clean soil would matter results in diverging choices of regulatory models. To understand how contaminated land systems are formed, we must therefore examine why harm and risk are understood differently in different regulatory systems. In part, such divergence arises because there is no environmentally pristine background against which to judge pollution of land. Even if such a background were theoretically possible, the scientific uncertainty in assessing how a particular polluting substance affects that background means that the idea of ‘clean’ soil becomes a question of managing risk and of deciding why clean soil matters. Furthermore, because land which has been polluted historically can be both very costly, and very complex, to remediate, states tend to settle, in establishing regulations to deal with the problem, for limited, or proportionate levels

10 See E. Scotford, ‘The New Waste Directive—Trying to Do It All . . . An Early Assessment’ (2009) 11 Environmental Law Review 75.

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630 emma lees of clean-up. Finally, in terms of divergence in relation to state motivation for cleaning up soil, as Seerden highlights: [T]he perspective for dealing with soil protection may differ. For instance, in Denmark soil protection is seen first in the light of the quality of the ground water as a source of drinking water. In Portugal, the agricultural use of land can be said to be a main reason for preventative legislation on soil protection. In the Netherlands the density of population and the lack of space seems to be the main driving force.11

Such differences produce modulations in the shape of the regulatory system which results. This means that national legal regimes concerning contaminated land tend to be sophisticated and nuanced in their allocation of liability to remediate land; in their definition of unacceptable levels of pollution on sites; and in their penalties and approach to remediation. Furthermore, there is often an overlapping layer of civil liability in place as pollution of land can have detrimental effects on neighbouring landowners and other rights-holders, a system which has usually developed organically in response to specific instances of pollution as they have arisen over time, rather than as a bespoke response to the problem of historical contamination. The aim of this type of provision would usually be the prevention of actionable harm or loss, rather than the production of environmentally satisfactory/ideal outcomes. Thus, in effect, not all provisions which are in fact used to tackle the problem of polluted soil are designed so to do, nor, as a result, do they all have as their primary goal the production of ‘clean soil’. To get a sense of the different models for legal responses to polluted sites which can exist, therefore, requires the assessment of (at least) three parameters, parameters which are, as will be seen, often dictated by historical legal culture, the degree to which the regime for dealing with historical pollution is specifically designed as a response to this regulatory issue, and the environmental element which is seen as being most threatened by the presence of such pollution. These parameters are (1) the definition of harm/pollution/contamination; (2) liability; and (3) models and goal of remediation. This chapter uses particular national regimes as exemplars for the different options available within these parameters and concludes with an overall assessment as to the interaction between the different elements of the models. However, in the annex which is to be found at the end of the chapter, a variety of tables summarizing these parameters within particular legal systems can be found. It will be seen that the different choices in relation to these three parameters both point to, and arise from, a fundamental division between states which see contaminated soil as a matter of environmental concern, and sites which see it as a barrier to productive use of land.

28.3 The Definition of Contamination Contamination of land is often, above all else, difficult to identify and define. This is largely a result of (a) the lack of a clear baseline or background level of a particular substance or 11 R. Seerden and K. Deketelaere, Legal Aspects of Soil Pollution and Decontamination in the EU Member States and the United States (Antwerp: Intersentia, 2000).

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contaminated sites 631 substances in ‘uncontaminated’ soil and (b) because of the cost of inspection of sites to ascertain whether contamination is present. Wagner explains the consequence of this twin problem and its effects against a background of an overwhelmingly precautionary approach to environmental protection: Combining existing scientific research with the protective assumption of no safe dose, the true answer in most instances is that ‘clean’ or ‘non-hazardous’ will be achieved only when the presumptive toxins are eliminated, or nearly so. Since an agency cannot insist on pristine conditions or zero pollution, however, it finds itself preoccupied with subtle adjustments to the quantum of evidence needed to support or to rebut protective standards, with a resolution emerging (if at all) only after years of regulatory struggling.12

In many of the states examined here, this ‘regulatory struggling’ risks resulting in a circular or highly discretionary approach to definition contamination which falls back upon its fundamental underpinning (i.e. development, or environmental protection). Furthermore, it means that there is, in effect, little incentive to look for contamination except in advance of development of land or in particularly severe and obvious environmental harm cases as otherwise the costs of inspection may outweigh the economic or demonstrable social/ environmental benefits of remediation. To meet these challenges, national regimes concerning polluted sites have essentially taken three diverging approaches to identification and definition. Some regimes rely upon thresholds or other forms of comparisons with base line values so that whenever substance x is at a level of y (y being either a fixed threshold, or determined by comparison with a baseline value) or higher in the soil or groundwater on a site, then that site is contaminated. Other regimes employ a risk-based approach, so that the site will only be contaminated where substances present in, on or under that land pose a risk of harm to a receptor. The definition of the receptors varies, although most definitions include human health and life. Other potential receptors include property, and the environment narrowly or broadly defined. Finally, some regimes employ a mixture of the two, whereby regulators or operators must carry out risk assessments only when substances in the land overstep a particular threshold value. In each of these models, national regulators will also have to choose whether they are concerned with soil, groundwater, or both. Usually both are covered in some way, but in many cases the legislation covering each is different, and the approach to definition of contamination may therefore diverge in each. These three approaches to defining contamination in sites result from divergence in understanding as to what the purpose of remediation of land is and this divergence thus colours the regulatory attitude to complexity and incoherence in terms of the precaution/ science/cost trifecta. For those states where a risk assessment approach is used, there is essentially a decision made to evolve the cleanliness of the site with its changing use. Thus, when the use of land changes, so too do the parameters of risk within which assessment as to whether or not remediation is required. In such systems, therefore, there is a tendency to assimilate the control of contaminated land into the planning system. An example of such an approach is to be found in the case of Israel, where despite a serious historical problem 12 W. Wagner, ‘The “Bad Science” Fiction: Reclaiming the Debate over the Role of Science in Public Health and Environmental Regulation’ (2003) 66 Law and Contemporary Problems 63.

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632 emma lees with contamination of soil, both from agricultural and industrial uses,13 no bespoke contaminated land provisions have been created (a Bill which would have established a risk-based approach to regulation of contamination was stuck in the Israeli Parliament, the Knesset, for a number of years14). In recent years Israel has been working with the European Union (EU) to strengthen its regulatory framework.15 However, in practice, land is remediated through the planning system, since clean-up will be required before planning consent is given to a change in use of the land.16 The assumption that this regulatory approach embodies is that where use of land remains static, the dangers posed by that land too remain predictable and manageable. It is only where use of land changes, that the dangers of the relevant contaminant, and thus the need to remediate, arises. In the United Kingdom too, where there does exist a bespoke regime for dealing with historical contamination, in practice the regulation of the problem has fallen to the planning system such that 90 per cent of all contamination is dealt with through the planning rules, and the contaminated land provisions are criticized as being of little relevance to the practical enforcement of clean soil and groundwater standards.17 The difference between these two examples however is in the incentive to clean up through the planning system which the (arguably) more onerous bespoke provision provides. Furthermore, although the United Kingdom’s approach is one of risk assessment based on the current use of land,18 there can be mandatory remediation of a site even where it is not anticipated that there will be any change in its use. Despite the potential for divergence about the degree to which the purpose of remediation is to achieve an environmentally pristine outcome, or to make land suitable for use, as exemplified by the approaches in Israel and the United Kingdom, many states surveyed here utilize a risk-based approach to the definition of contaminated land. This can be seen in Table A, in the Annex. However, some countries use thresholds, both before carrying out risk assessments, and on occasion, as the only method by which contamination is determined. For example, in Italy a threshold approach is adopted whereby risk assessment is carried out in the abstract, to feed into the standard-setting process.19 Once this standard is set, sites become sites which are ‘at risk of contamination’ such that a specific site risk analysis is carried out. It is therefore a hybrid approach, but one which in practice may conflate the meeting of the general threshold, with the presence of actionable contamination. A similar hybrid approach has been adopted in the Netherlands, where although the presence of any substance in soil which may pose a risk to human health is considered to

13 OECD, ‘Environmental Performance Review: Israel’ (2011), 64. See also: http://www.sviva.gov.il/ English/env_topics/PreventionOfSoilContaminationAndRehabilitationOfLand/Pages/default.aspx (this was last updated in 2014). 14 The Prevention of Soil Pollution and Contaminated Lands Bill. 15 http://www.sviva.gov.il/English/env_topics/IndustryAndBusinessLicensing/EU-TwinningProgram/Pages/Twinning-Project-2016-2018.aspx (updated 18 June 2017). 16 R. Laster and D. Livney, Environmental Law in Israel (Alphen aan Den Rjin: Kluwer Law International, 2011), 93–4. 17 S. Vaughan, ‘The Contaminated Land Regime: Still Suitable for Use?’ (2010) Journal of Planning and Environmental Law 142. 18 DEFRA, ‘Environmental Protection Act Part 2A: Contaminated Land Statutory Guidance’ (2012), para 1.4(b). 19 Legislative Decree No. 152 of 3 April 2006 (Consolidated Environmental Protection Code), Title V, section IV. The risk assessment process is provided for in Annex 1, section IV of this Code.

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contaminated sites 633 constitute contamination,20 severe contamination21 (i.e. that contamination which takes priority in remediation terms and therefore the category where regulatory intervention is permitted), is determined according to threshold criteria. This approach fits well with the goal in the Netherlands to promote a long-term, high-level clean-up which required the tackling of all imminent health threats by 2015. Finally, a third version of a ‘threshold’ or hybrid model is to be found in the approach taken by Poland which uses fixed contamination standards without reference to a risk assessment.22 Similarly, Japan imposes remediation controls once substances on the land exceed a threshold level.23 In each of these cases, and of the others contained in the table which use baseline standards, the decision to use thresholds is an approach which assumes that the level of substance present in the soil is unacceptable regardless of the use to which the land is put. The presence of the substance in such levels is, itself, harmful whether or not any person or property may come into contact with that substance. This choice of such an approach could be reflective of concerns about the cost of carrying out risk-based analysis, but more likely it reflects the state’s understanding as to why remediation is important. In short, states which use thresholds articulate their understanding of what constitutes a ‘good’ environment through those thresholds: states which use a risk-based approach look to the economic, social, and environmental reasons as to why a clean environment is important. The decision as to the preferred method of defining contamination is, therefore, the determining characteristic of the regulatory system as a whole. A risk-based approach essentially abandons the search for an environmentally optimal outcome and focuses instead on the (usually) anthropocentric benefits which clean-up will being. However, in addition to the risk-based definition, some systems which take this approach include harm to the environment per se as a relevant receptor in terms of calculating that risk. For example, in both New South Wales and Western Australia, the relevant legislation refers to environmental damage in itself. Thus, the Contaminated Sites Act 2003 (Western Australia) refers in section 4 to ‘the environment or any environmental value’. Similarly, the Contaminated Land Management Act 1997, section 5(1) states that contamination is present when harm is risked to, amongst other factors, ‘any other aspect of the environment’. The New Zealand Resource Management Act 1991 takes this further by referring to the environment as the only relevant receptor in terms of assessing the presence or absence of risk (section 2) albeit that persons and communities inhabiting a particular ecosystem are included within the general definition of the environment for the purposes of the Act. By contrast, the provisions in the United Kingdom only apply to the environment per se where the site has previously been designated under, for example, the Habitats Directive,24 such that the environmental features on the site have separately been deemed worthy of special protection.25 The Environmental Protection Act 1990, Part IIA does not therefore ensure protection of the environment in general, but merely a particularly valuable subset. 20 Soil Protection Act, s. 1. 21 Ibid., s. 30 and Circulaire Bodemsanering, per 1 juli 2013. 22 Environmental Law and the Ordinance of the Minister of Environment on Standards of Equality of Land of 9 September 2002. 23 Soil Contamination Prevention Law, Law No. 53 of 2002. 24 Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora. 25 DEFRA, ‘Environmental Protection Act Part 2A: Contaminated Land Statutory Guidance’ (2012), Table 1, at 24.

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634 emma lees States which attempt to include the environment as a receptor in a risk-based analysis, are, therefore, arguably bringing in ecocentric concerns into their understanding of risk. As a consequence of this however, the national definition of ‘environment’ (a notoriously difficult question) also becomes critical in terms of the scope of the regime and in terms of its theoretical underpinning. Generally speaking, national legislation either does not define ‘environment’, or it does so by reference to sufficiently flexible and general criteria that the scope of many of these regimes, at least in terms of the definition of contamination, is both discretionary, and unpredictable. The consequences of this are two-fold. First, contaminated land regimes tend to be particularly problematic in terms of investment in sites, a fact which is reflected in the ongoing attention paid to the ability of contaminated land systems to impose liability onto owners of land who did not contribute to the contamination, and also to lenders and other similar parties who have only a financial and not a practical interest in the state of the land. Second, the definition of environment and of actionable risk for the purposes of these regimes becomes a space within which normative concerns about what environmental protection legislation should do, and how it should interact with property rights in particular, are debated, concealed, and manipulated. The definition of risk and harm for the purposes of contaminated land can therefore obfuscate debate surrounding the proper role of government in terms of mandatory clean-up of private property, particularly where the reach of the harmful effects of any contaminating substance does not extend beyond the boundaries of that land. Thus, the seemingly simple choice between threshold, environmentally focused standards, and risk-based, anthropocentric standards which focus on the economic and social benefits of ‘clean’ land, becomes blurred when environmental concerns are imported into the risk analysis.

28.4 Liability Having determined how the state intends to define, and therefore how it approaches the question of contaminated land, be that on a risk or a threshold basis, or both, it then becomes necessary to determine how the land is to be cleaned up and by whom. Again, there are a number of different options which can be adopted here. In most states, there is a fall-back option whereby the public purse pays to clean up contamination should there be no one else to cover the cost within their respective liability system. Apart from that however there is a huge variety in how liability is allocated. Most systems have some sort of causal liability for the ‘polluter’, although some systems limit this liability to situations where in addition to causation there is also fault. In addition, in many regimes there is primary or secondary liability for owners or occupiers of land (again, sometimes this depends upon the additional presence of fault), product liability, or windfall/value-based liability. Especially when dealing with contaminated land, and its historical elements, it is usually necessary to have a fall-back position whereby there is secondary liability or state liability in cases where a polluter cannot be found; does not have the resources to finance the remediation work; or where it is deemed unfair to impose liability onto a polluter where his actions were perfectly lawful at the time at which they were carried out. When considering questions of liability however, it is important to keep in mind the two factors considered above

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contaminated sites 635 in relation to the identification of actionable pollution: the lower the risk or threshold in relation to the polluting substance, and the higher the cost of clean-up, the potentially more problematic no-fault liability appears (at least in contexts where there is no windfall value in the remediation of the site). Thus whilst the question of allocation of liability stands alone from questions of definition of harm, in situations where the definition of harm is relatively low and precaution based, very extensive liability can be harder to justify. This leads in many states to ‘hardship’ exceptions to the general liability rules (see e.g. the United Kingdom’s ‘exclusion of liability’ tests26). Some states, however, notwithstanding the problem of retroactivity, choose to focus only on causal responsibility. Thus, in Denmark, the only possible liability is that of the polluter.27 However, given the need to remediate land even where a polluter cannot be found, the Danish state will become responsible for the clean-up if the owner of a domestic property applies to the state for funds to assist in the remediation.28 Even more ‘pro-owner’, it is possible for the owner of land to apply for an award in damages to compensate them for remediation works carried out on their land.29 This rather extreme ‘pro-owner’ approach fails to reflect the fact that such an owner will receive a windfall upon the remediation of their land, and is, perhaps as a result of this, and perhaps as a result of the continual difficulties experienced in terms of attempts to locate solvent historical polluters, unusual in its approach when compared to the majority of national regimes (see Table B, in the Annex). In states where there is alternative liability to polluter-based liability, there is a further choice to be made between joint and several liability between the polluter and other potentially liable parties, and secondary liability. There are few systems in which an owner/occupier, for example, is primarily liable along with a polluter, but Sao Paulo in Brazil is one such system. In the Brazilian regime, the acquirer of land automatically falls under a responsibility to remediate that land, whether or not they contributed causally to the pollution and is jointly and severally liable with any polluter and previous owners and occupiers.30 The owner of land also continues to be so liable even after they have sold the land onto another party. Thus, there is a long and potentially complex chain of liability in place, including p olluters, owners, and successors to both of these, a position broadly, though not entirely mirrored throughout Brazil.31 Similarly, in Germany, there is no explicit ranking between categories of potentially liable persons so that both the polluter and the owner are primarily liable for the clean-up of land subject to an overreaching limitation of proportionality.32 Even further, in India, responsibility for the clean-up rests solely with the occupier of land.33 This is based, 26 DEFRA, ‘Environmental Protection Act Part 2A: Contaminated Land Statutory Guidance’ (2012), para. 7.8. 27 U1991.674H (Rocwool Sagen). 28 E. M. Basse, Environmental Law in Denmark (Alphen aan den Rijn: Kluwer Law International, 2013), 224. 29 Ibid. 30 CETESB’s Decision No. 103/2007/C/E/. 31 Federal Law No. 6,938/1981, Conselho Nacional do Meio Ambiente (CONAMA), Resolution 420/2009. 32 Article 4 Federal Soil Protection Act of 17 March 1998. The proportionality requirement emerges from Decision of the Federal Court, 1 BvR 242/91 and 315/99 (16 February 2000). 33 See E. Reynaers Kini (Tavinder Sidhu) and S. Pal Bhatia (M. V. Kini & Co), ‘Environmental Law and Practice in India: Overview’, available at: https://uk.practicallaw.thomsonreuters.com/0-5032029?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1 (updated 1 July 2016).

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636 emma lees in effect, upon an assumption of causation given that the occupier is the person with control over the factory or premises. Former occupiers are therefore also potentially liable under the Indian approach. Essentially this liability approach is a response to the difficulty of proof in relation to historical contamination, and not a side-lining of the polluter-pays principle per se, but it does reflect the fact that it is not always possible to draw a strict division between a causal polluter, and the owner of land, in terms of the ongoing and complex harms to which pollution in soil might give rise. This tension is apparent in the United Kingdom too, as, for example, in R v Crest Nicholson,34 where the court conferred causal liability onto a landowner because his failure to ‘cover’ the land resulted in the relevant pollution washing further into the soil. On this very broad definition of cause, almost all owner/occupiers, one assumes, could be allocated a degree of causal responsibility. It has been considered elsewhere whether divergent responses to the liability question in relation to contaminated land marks a divergence simply in style, or whether represents a fundamentally different philosophical approach to the regulation of this historical problem, however fine in practice the distinction may between because causal and rightsbased liability.35 For states like Brazil, or Germany, where owner/occupiers are given equal responsibility for the state of their land, or Italy and Finland where the principles of unjust enrichment recognize that an owner of land is unjustly enriched at a polluter’s expense where land is remediated for him without his having to contribute to the cost, the owner of land is seem as holding responsibility for the condition of that land whether or not he contributes to that condition. This represents an understanding of the role of property rights in environmental protection which is lacking in those states where causation and fault are the primary drivers for liability. Furthermore, there is a correlation between those states which focus on the polluter-pays principle as the sole justification for liability, and risk-based definition of contamination within a very limited range of uses. In countries where the land has to be cleaned up to allow for a wide range of potential future and ongoing uses, there is a clear recognition that this high level of clean-up is much more beneficial to the owner of land, than is a clean-up which focuses only on the current use to which the land is being put. Owners are therefore more likely to be liable to some extent—either under a very extended understanding of causal responsibility, or directly as a result of the windfall effect of remediation or as a result of a recognition of the moral responsibilities which are associated with ownership of a scare resource such as land—in systems where the definition of contamination is broad, and the standard of clean-up, strict. In terms of liability, there is also a divergence between regimes which allow for the recovery of costs from others involved in the contamination process, whether or not they constitute a liable person for the purposes of the regime itself. For example, in some systems it is possible to recover costs through chains of contractual indemnity, even though by transferring land a person may no longer be a relevant owner/occupier, nor a polluter for the purposes of the definition. In systems which allow this kind of transfer of liability, there is in effect a privatization of the clean-up costs of contaminated land, and contractual chains of indemnity 34 R (Crest Nicholson) v Secretary of State for the Environment [2010] EWHC 1561 (Admin), [2011] Env LR 1. 35 E. Lees, ‘The Polluter Pays Principle and the Remediation of Land’ (2016) 8 International Journal of Law in the Built Environment 2.

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contaminated sites 637 (usually resulting in insurance) become the norm in land transfers. An alternative approach to this question of post-remediation distribution of costs (as opposed to pre-remediation allocation of remedial responsibility), is where the state (or an owner/occupier for example), is able to pursue those with a causal link to recover costs but where the inability to find such a person does not in itself prevent the requirement to remediate the land from arising in the first place. In such systems, the justice inherent in the polluter pays principle (and therefore in its exclusionary force, i.e. the argument that no one other than a polluter should play) plays second fiddle to the practical and environmental need to remediate the land and the practical difficulties in locating solvent polluters. This prevents land becoming blighted by contamination without an explicit allocation of liability to the owner or occupier of that land. However, in such cases, even if not present in the legislation as such, there must exist a tacit assumption that where there no causal link can be proven, the fall-back position is liability for a landowner, or for the state. This may prevent the sort of windfall gains mentioned above, but it represents a somewhat less than open acknowledgement of the owner/ occupier interest in clean land than those systems which explicitly include the owner or occupier (or state) within the ranks of the potentially liable. In short, the choice of liability model determines not only the practical effect of the regulatory intervention, and determines the practical likelihood of clean-up, it is also the clearest indication as to the underlying principles at play in the construction of the regulation. The table of regimes in Annex A demonstrates the degree to which these fluctuate across different national systems. This, when twinned with the divergence in goal discussed above, helps to explain how a seemingly simple, global goal, can be transformed into vastly differing legal regimes.

28.5 Models for Remediation Having established (a) the definition of contaminated land and (b) the person responsible for financing or carrying out that remediation, the next ‘option’ for any regulation of contaminated sites is to establish rules for how and to what extent remediation is carried out. The options essentially range from an attempt to ensure that the site reaches a level of pollution such that it no longer causes harm or poses a risk of harm, that is, is no longer contaminated under a risk analysis, whatever the cost or where that cost is proportionate, to attempting to reach a pristine or acceptable baseline standard. Thus, for some approaches, the goal is reaching a particular standard (albeit one which can be calculated on the basis of risk). For others, the approach is to use Best Available Technique (BAT) or similar standard, such that the limitations of scientific methods determines the extent to which the land must be remediated. In such cases, in effect, environmental cleanliness is sought in combination with other factors (such as timeliness and limited alternative side effects). Finally, in some cases, the goal is simply to carry out reasonable steps to clean up the site. Thus, as Table C demonstrates, the four potential approaches are (a) risk-based remediation; (b) baselinebased remediation; (c) method-based remediation; or (d) reasonable remediation. Which of these standards of remediation is employed is essentially a question of the degree to which the state considers the remediation of contaminated sites as being a matter for proportionate intervention or of achieving an absolute standard, and that, in turn, relates to the

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638 emma lees question of specific aim mentioned in the first section. In particular, for those states where the goal is to ensure that there is clean land for development, for example, proportionality of outcome will be a factor of the social and economic benefits of the planned development. The majority of states, for example, the United Kingdom, Argentina, Switzerland, France, Australia, and many others, therefore take a risk-based approach as shown in Table C, in line with the prevailing approach to the definition of contamination. Not all systems employ this risk-based approach however. In Canada, for example, the majority of jurisdictions utilize baseline standards to determine the required degree of remediation. Thus, the regulator establishes levels at which substances are to be considered contaminating, and the liable party then becomes responsible to remediate so that the substance concentrations fall below that threshold. The Brazilian approach is essentially the same in this respect. Although expressed differently, the approach in Venezuela is similar. The Venezuelan system requires that the land be remediated to the point that it is in the same state as it was before the ‘damage’ occurred.36 However, since damage is decided not according to a risk assessment, but instead on a ‘change’ to the natural state of land, this essentially means that when the substance concentration goes above a threshold ‘natural’ level, the land will be contaminated, and responsibility arises to remove that substance so that the natural levels are restored. In the Netherlands, the system divides contamination according to date, and it employs elements of both of the above models. For contamination caused prior to 1987, the standard to which land must be remediated is based on a risk assessment relating to current use. However, for land contaminated after that date (such that not only is the causal link easier to prove, but it also more straightforward to assign fault given the state of knowledge at the relevant time), the land must be remediated so that the substances are removed from the land as far as possible, or so that the consequences of the polluting substances are eliminated.37 This is clearly a more stringent clean-up standard than that in relation to the earlier contamination, demonstrating that choices in relation to the liability parameters affects the state’s assessment as to what constitutes a proportionate and justified response to the problems which contaminated land poses. Furthermore, the initial choice as to main driver behind establishing the regulatory system—that is, the division between allowing for use and development of land without it posing a danger, and the attainment of a clean environmental standard ‘for its own sake’—will obviously feed into the choice as to how cleanliness is assessed. It is possible, however, to establish a liability standard according to a remediation technique, rather than a precise standard. Thus, in the Flemish region in Belgium, in cases of historical contamination, the guiding principle is Best Available Technique not Involving Excessive Cost.38 Italy and Spain too rely on the BAT standard to indicate how land should be remediated. In systems which utilize this way to measure their level of clean-up however, there is also usually a back-up in the form of a risk assessment, so that no serious or obvious risks are left to remain, even where the BAT standard may not call for remediation of that substance to the required level. 36 Baker & McKenzie, ‘Contaminated Land’ (2015), at 228. 37 Soil Protection Act as amended, s. 38. 38 Decree of the Flemish Parliament of 27 October 2006, relating to soil clean-up and soil protection as amended.

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contaminated sites 639 Finally, one example of a system which utilizes a reasonableness standard for remediation, is Sweden. In Sweden, the goal is to ‘prevent or combat’ subsequent damage, but only to the extent reasonable.39 Reasonableness in this system is judged not only according to the cost of remediating the harm, when compared with the ongoing harm being caused, but also takes account of factors such as the length of time which has transpired since the causation of the pollution; any other relevant legislation which controls further uses of the land which may contribute to future pollution; and any other relevant consideration. Therefore, this reasonableness standard is sufficiently flexible to take account of the benefits of remediation beyond those captured in the definition of contamination. Thus, the Swedish system relies on a risk assessment as to whether a substance ‘may cause damage or detriment to human health or the environment’ in terms of defining contamination. However, it would be possible to take other elements of this into consideration when assessing the standard of remediation. Thus, it would be possible to take account of damage or harm to other receptors, and indeed to consider whether it would be possible in the context to exceed the cleanliness standard which the risk-assessment considered the threshold for intervention. Furthermore, for states which equate the risk elements in terms of defining contaminated land with the remediation standard when cleaning up, all those normative values hidden within the risk assessment will be transplanted into the question of remediation levels. Thus, where the state, such as the United Kingdom, conflates risk assessment in terms of the presence of contamination with the standard to be achieved through remediation, either the costs of remediation and the proportionality of these are integrated into the initial risk assessment, or it will be difficult to ensure that the outcomes are proportionate to costs.

28.6 Concluding Remarks A number of conclusions emerge from comparative analysis of the central parameters of national contaminated land strategies. First, whilst in such regimes there is a (superficial) concurrence of general aim, the different specific goals of each regulatory system produces subtle differences in the operation of those regimes. These differences play out across three parameters: the definition of harm; the liability regime; and the model of remediation. But whilst these divergences across the parameters can produce wide-ranging divergences in practice, most importantly they point to the hidden normative decisions resting behind such questions as the definition of ‘environment’, the receptors chosen to represent that environment, or the understanding of how risk is to be calculated against a background of scientific uncertainty. Secondly, and specifically in relation to the definition of harm question, a decision to utilize risk analysis rather than threshold liability tends, as can be seen in the tables of legal rules provided in the Annex, to result in more prescriptive, wider-ranging liability regimes as ‘spade work’ in terms of the hidden ‘should we make someone pay for this historical harm’ question is already carried out, for the most part, within the earlier decision as to whether contamination is in fact present. Thus, regimes which tend (although 39 The guidelines are set by the Swedish Environmental Protection Agency.

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640 emma lees of course not in all cases) to be flexible in terms of a finding of contamination tend to be prescriptive in terms of remediation approaches and costs, whereas those which use automatic thresholds for a finding of contamination are usually more flexible, or have a hardship exception, in relation to the imposition of liability. Thirdly, in terms of the liability question (especially for ‘innocent’ landowners), the choice as to how a state handles liability for such persons is a good indicator as to their assessment of the principles underpinning legal intervention in this area, be that the polluter-pays principle, or some broader conception of the importance of duties in relation to land. Polluted sites are a challenging regulatory problem: historical causation, scientific uncertainty, and the very high cost of remediation result in complex, often unwieldy regimes. By breaking them down into three fundamental elements however, it is possible not only to compare, but to see the difference in terms of their explanatory force.

28.7 Select Bibliography Brandon, E., Global Approaches to Land Contamination (Dordrecht: Springer, 2013). Klass, A. B., ‘From Reservoirs to Remediation: The Impact of CERCLA onCommon Law Strict Liability Environmental Claims (2004) 39 Wake Forest Law Review 903. Lees, E., ‘The Polluter Pays Principle and the Remediation of Land’ (2016) 8 International Journal of Law in the Built Environment 2. Seerden, R. and K. Deketelaere, Legal Aspects of Soil Pollution and Decontamination in the EU Member States and the United States (Antwerp: Intersentia, 2000). Vaughan, S., ‘The Contaminated Land Regime: Still Suitable for Use?’ [2010] Journal of Planning and Environmental Law 142. Zhao, X., Developing an Appropriate Contaminated Land Regime in China (Dordrecht: Springer, 2013).

annex—tables for comparison A Note on Methodology: Footnotes are provided for the general source of the relevant rule. The limitation of this approach is over-simplification and at certain points decisions regarding ‘boundary line’ cases had to be made. Furthermore, a decision had to be made, somewhat arbitrarily, about the boundary line between historical contamination, that is, sites which have been polluted in the past, and ongoing pollution of sites which is more appropriately part of discussion of environmental permitting. In particular, in countries in the EU, the Environmental Liability Directive has, for the most part, harmonized approaches to future or ongoing pollution of land. The provisions under both this Directive itself, and transposing legislation, are ignored. For this reason, the tables here for EU countries (mostly) represent the rules relating to contamination caused prior to the coming into force of the Directive (i.e. April 2007). Finally, the choice of countries requires some explanation. In countries where regulation of pollution sites is a matter for the state/province/region, in some cases only one or two of these have been chosen to provide examples. Thus, in Australia, Western Australia, and New South Wales are used and in Argentina, only the Buenos Aires region is covered. Otherwise, countries have been selected to provide fairly wide international coverage, with a range of continents, legal traditions and degrees of development reflected. However, it ought to be noted that many developing countries have not yet established bespoke regimes for historical contamination, even if they have adopted on-going pollution controls. Finally, civil liability regimes which may be relevant to the question of polluted sites have not been included in these tables. Where a country only has general pollution controls, for example, India, the effect of these controls for contaminated sites in particular is recorded in the relevant table.

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contaminated sites 641

Table A Definition of Contamination Argentina (Buenos Aires)40 Australia (WA41) Australia (NSW42) Austria43 Belgium (Walloon)44 Brazil45 Canada (BC)46 Denmark47 Egypt48 Finland49 France50 Germany51 India52 Indonesia53 Italy54 Japan55 Malaysia56 Mexico57

Comparison with ‘baseline’ value

Risk assessment

• • •

• • • • • • •

• • • • • •

Risk assessment above threshold • • • • (continued )

40 Article 3 Buenos Aires Law 14,343. 41 The Contaminated Sites Act 2003, s. 4 and Environmental Protection Act 1986, s. 3. 42 Contaminated Land Management Act 1997 No. 140, s. 6. 43 There is no single regime for contaminated land in Austria. However, the Altlastensanierungsgesetz which applies to deposits made before 1989, defines contamination as (broadly) pollution from which ‘substantial danger to human health or the environment are emitted’. 44 Walloon Soil Management Decree, 5 December 2008, albeit that one of the key elements of the statute is not in fact in force. 45 Brazil’s National Environmental Council Resolution No. 420/2009. 46 Environmental Management Act 2003, s. 39. 47 Soil Contamination Act, Consolidated Act no. 1427. 48 Article 1(7) Law No. 4 of 1994 (the Environmental Law). 49 Environmental Protection Act. 50 Article 556–3 Environment Code. 51 Article 2 Soil Protection Act. 52 India does not have a bespoke contaminated land regime for dealing with historical contamination. However, the Environmental Protection Act 1986 (which results in liability falling onto occupiers of land to remediation land) defines environmental pollutants by reference to substances which may tend to be ‘injurious to the environment’ (s. 2). 53 See both Government Regulation No. 150 of 2000 and Law No. 32/2009. 54 Italy has a strict division between historical contamination which is dealt with under the Consolidated Act on Environment, and current contamination is dealt with under the Environmental Liability Directive provisions. The information on the table therefore explains the law relating to historic contamination only. Contamination is defined in Art. 240 Consolidated Act. 55 Soil Contamination Prevention Law, Law No. 53 of 2002. 56 Environmental Quality Act 1974, s. 2. See also Department of the Environment, Contaminated Land Management and Control Guidelines. 57 General Law for the Prevention and Integral Management of Waste, Title V, Chapter VI.

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642 emma lees

Table A Continued Netherlands58 Peru59 Philippines60 Poland61 Russia62 Singapore63 South Africa64 Spain65 Sweden66 Switzerland67 Thailand68 United Kingdom69 USA70

Comparison with ‘baseline’ value

Risk assessment

• • • • •

• • • • • • • •

Risk assessment above threshold •

58 Soil Protection Act. Severe contamination is defined in Circulaire Bodemsanering, per 1 juli 2013. 59 Supreme Decree No. 002-2013-MINAM (on 25 March 2013) and Supreme Decree No. 002-2014MINAM (on 24 March 2014). 60 Pollution Control Law. 61 Environmental Law and the Ordinance of the Minister of Environment on Standards of Equality of Land of 9 September 2002. 62 Environmental Protection Law. 63 Environmental Protection and Management Act and the Singapore Standard SS 593:2013 Code of Practice for Pollution Control. 64 National Environmental Management Waste Act, 59 of 2008. 65 Article 3.x) Waste and Contaminated Land Act 2011. 66 Environmental Code, Ch. 10. 67 Article 2 Federal Decree on contaminated sites. 68 There is no specific definition of contaminated land, but rather is based upon the causation of harm. 69 Environmental Protection Act 1990 Part IIA and DEFRA, ‘Environmental Protection Act Part 2A: Contaminated Land Statutory Guidance’ (2012). 70 Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 1980 (‘Superfund’). The site identification process uses a hazards ranking system. See https://www.epa.gov/ superfund/superfund-site-assessment-process (updated 19 August 2016).

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contaminated sites 643

Table B Liability Options

Argentina (Buenos Aries)71 Australia (WA72) Australia (NSW73) Austria74 Belgium (Walloon)75 Brazil76 Canada (BC)77 Denmark78 Egypt79 Finland80 France81 Germany82 India83 Indonesia84 Italy85 Japan86 Malaysia87 Mexico88 Netherlands89 Peru90

Causal Fault Fault Windfall/ No-fault Owner Liability liability for liability— value-based liability— liability— polluter owner liability owner primary? • • • • • • • • • • •

• • • •

• • •

• • •

• (fault-based) • • • • • • (continued )

71 Federal Constitution, s. 41; Federal General Environmental Law No. 25,675, s. 28 and the Argentine Civil and Commercial Code, s. 1758. 72 Contaminated Sites Act 2003. 73 Contaminated Land Management Act 1997 No 140, s. 5. 74 Federal Environmental Liability Act (Bundes-Umwelthaftungsgesetz) (amongst others). 75 Walloon Soil Decree. 76 National Environmental Policy Law. 77 Environment Management Act 2003, Division 3, ss. 45–7. 78 Regulation 22-03-2007 No. 282 on Contaminated Soil, s. 41. See also s. 48 regarding limited liability for domestic owners in relation to fuel tanks. 79 Law No. 4 of 1994 regarding the protection of the environment (the ‘Environmental Law’). An owner or occupier will only be liable where the polluter cannot be identified. 80 Environmental Protection Act. 81 Article L. 556–3 II French Environmental Code. 82 Federal Soil Protection Act. 83 India does not have a bespoke contaminated land regime for dealing with historical contaminated. Ongoing, prospective contamination is dealt with through fault-based liability. The net result of this is that the occupier of land is responsible for remediation of historical contamination albeit that this appears to be based on the assumption (without requiring proof) of causal responsibility. 84 Law No. 32/2009. 85 Article 242 Decree No. 152/2006. 86 Soil Contamination Prevention Law, Law No. 53 of 2002. 87 Environmental Quality Act 1974, s. 31(1). 88 General Law for the Prevention and Integral Management of Waste, Title V, Chapter VI. 89 The Soil Protection Act contains the rules on liability. See Art. 55b. 90 Supreme Decree No. 002-2013-MINAM (on 25 March 2013) and Supreme Decree No. 002-2014MINAM (on 24 March 2014).

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644 emma lees

Table B Continued

Philippines91 Poland92 Russia93 Singapore94 South Africa95 Spain96 Sweden97 Switzerland98 Thailand99 UK100 USA101

Causal Fault Fault Windfall/ No-fault Owner Liability liability for liability— value-based liability— liability— polluter owner liability owner primary?

•

• • • • • •

91 In the Philippines legal system, the principle of polluter liability is a general one. 92 In the Polish system, if the owner can prove another caused the contamination, the state may remediate the land and recover costs from the polluter, Environmental Law of 27 April 2001. 93 Article 76 RF Land Code. 94 The Environmental Protection and Management Act, ss. 15 and 18. 95 National Environmental Management Waste Act, 59 of 2008, s. 36(5). 96 Waste and Contaminated Land Act. 97 Environment Code, Ch. 10. 98 Article 20 Federal Decree on contaminated sites. 99 Enhancement and Conservation of National Environmental Quality Act B.E. 2535 (1992). 100 Environmental Protection Act 1990 Part IIA and DEFRA, ‘Environmental Protection Act Part 2A: Contaminated Land Statutory Guidance’ (2012), s. 7. 101 Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 1980 (‘Superfund’).

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contaminated sites 645

Table C Remediation Argentina102 Australia (Western Australia103) Australia (New South Wales104) Austria105 Belgium (Walloon)106 Brazil107 Canada (BC)108 Denmark109 Egypt110 Finland111 France112 Germany113 India114 Indonesia115 Italy116 Japan117 Malaysia118 Mexico119 Netherlands120

Absolute/baseline standard • • • • • n/a n/a • • • •

Risk-based remediation • • • • • • • • •

Best Available Technique •

Reasonable Remediation • (continued )

102 Resolution No. 98/2007 and 1973/2007 issued by the Secretariat of Finance and the Secretariat of Environment and Sustainable Development. 103 Contaminated Sites Act 2003. 104 Contaminated Land Management Act 1997 No 140, s. 5. 105 Historic Contaminations Act and Federal Environmental Liability Act. 106 Walloon Soil Decree. 107 CONAMA Resolution No. 420/2009. 108 Environment Management Act 2003, s. 56. This section specifies that the land must be remediated to, ‘provide permanent solutions to the maximum extent practicable’. However, the Act requires that the cost-benefit of carrying out the remediation and other factors should be taken into account in assessing what constitutes such a standard. 109 Soil Contamination Act, Consolidated Act no. 1427. 110 The level of clean-up required is assessed on a case-by-case basis by the Egyptian Environment Authority according to the magnitude of a particular case. See Baker and McKenzie, ‘International Guide to Contaminated Land’. 111 Environmental Protection Act and Waste Management Act. 112 The French Environment Code. 113 Federal Ordinance Concerning Soil Protection and Historic Contamination. 114 India does not have bespoke contaminated land provisions. 115 The level of remediation to be reached is discretionary. 116 Italy has a strict division between historical contamination which is dealt with under the Law on Pollution, and current contamination is dealt with under the ELD. The information on the table therefore explains the law relating to historic contamination only found in the Consolidated Act. 117 The Soil Contamination Prevention Law, Law No. 53 of 2002. 118 Environmental Quality Act 1974, s. 21. 119 NOM-138-SEMARNAT/SS-2003 (hydrocarbons in soils) and NOM-141-SEMARNAT-SSA1-2004 (heavy metals in soils). 120 Soil Protection Act as amended, s. 38.

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646 emma lees

Table C Continued Peru121 Philippines122 Poland123 Russia124 Singapore125 South Africa126 Spain127 Sweden128 Switzerland129 Thailand130 United Kingdom131 USA132

Absolute/baseline standard • n/a • • • n/a • n/a

Risk-based remediation • • •

Best Available Technique

Reasonable Remediation •

121 The Supreme Decree No. 002-2013-MINAM (on 25 March 2013) and Supreme Decree No. 002-2014MINAM (on 24 March 2014), contain the Environmental Quality Standards for Soil. 122 The level of clean-up required is judged on a case-by-case basis. 123 Ordinance of the Minister of Environment on Standards of Equality of Land of 9 September 2002. 124 Land is considered remediated when it no longer meets the threshold-based criteria for contaminated status. 125 Singapore Standard SS 593:2013 Code of Practice for Pollution Control, Annex T. 126 The level of clean-up required is judged on a case-by-case basis. 127 Article 54.1 Waste and Contaminated Land Act. 128 The guidelines are set by the Swedish Environmental Protection Agency. 129 Articles 15 and 16 Federal Decree on Contaminated Sites. 130 The level of clean-up required is judged on a case-by-case basis. 131 Environmental Protection Act 1990, Part IIA and DEFRA, ‘Environmental Protection Act Part 2A: Contaminated Land Statutory Guidance’ (2012), s. 6. 132 Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 1980 (‘Superfund’). See US Environmental Protection Agency, ‘Rules of Thumb for Superfund Remedy Selection’ (Washington D.C., 1997).

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Pa rt I I I

SYST E M S

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SECTION A

I N F R A ST RUC T U R E

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chapter 29

En v ironm en ta l Pr i ncipl es Across J u r isdictions Legal Connectors and Catalysts Eloise Scotford

29.1 Overview

651

29.2 Environmental Principles as Legal Connectors

653

29.3 Environmental Principles as Legal Catalysts

669

29.4 Concluding Remarks

676

29.5 Select Bibliography

677

29.2.1 Introduction 29.2.2 Connection through Soft Law Instruments 29.2.3 Connection through Judicial Dialogue 29.2.4 Connection through Legal Scholarship 29.3.1 Introduction 29.3.2 The European Union 29.3.3 India 29.3.4 Brazil 29.3.5 New South Wales (Australia)

653 655 661 665

669 670 672 674 675

29.1 Overview In thinking about the comparative law dimensions of environmental law, environmental principles stand out as beacons of interest and possibility. Environmental principles provide focal points for connecting jurisdictions and legal cultures around environmental issues in

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652 eloise scotford at least three ways. They are prevalent in international soft law instruments concerning environmental protection, as well as increasingly in national legal instruments; they form part of judicial exchanges of ideas in environmental disputes across jurisdictions; and they support an increasingly vibrant and connected scholarly global discourse concerning environmental law and its foundations. However, whilst environmental principles can act as legal connectors across jurisdictions, reflecting the inherent nature of environmental law as a transnational enterprise, these connections are subtler than simply representing the emergence of a common set of identical legal phenomena globally. This is because environmental principles—such as the precautionary principle, the polluter-pays principle, the principle of sustainable development, and the principle of intergenerational equity—are flexible concepts that are differently endorsed as legal ideas across jurisdictions. Isolating environmental principles as a target for analysis is thus not straightforward—various legal instruments and scholarly works indicate that different groups of environmental principles are the ‘core’ group of principles to define environmental law, to articulate its foundations, to reflect its principal policy goals, or to overcome its challenges. In light of this complexity, the chapter focuses on environmental principles as a general phenomenon in environmental law. It focuses not on a fixed set of environmental principles but on the idea of environmental principles as presenting a collective cornerstone for environmental law in some way. The chapter does however restrict analysis to principles of substantive environmental policy, and does not address ‘procedural’ environmental principles such as environmental impact assessment (EIA) in any depth. This is partly to limit the contribution to a reasonable scope but also reflects the dominant approach to grouping these principles in environmental law scholarship and legal compendia of environmental principles to date.1 Another feature of environmental principles that contributes to their legal elusiveness is their general formulation and concomitant ambiguity of meaning. Environmental principles legally fall within a ‘category of concealed multiple reference’,2 capable of adapting differently to various legal institutional and doctrinal environments. Beyond their endorsement of ideas of environmental protection policy, the flexibility of environmental principles is what makes them so popular and legally prevalent across jurisdictions. 1 e.g. N. de Sadeleer, Environmental Principles: From Political Slogans to Legal Rules (Oxford: Oxford University Press, 2002), 1–2 (examining the precautionary principle, principle of prevention and polluter-pays principle as the ‘three foremost environmental principles’ amongst a number of principles whose ‘disparity leads to perplexity’); UNEP, Judicial Handbook on Environmental Law (UNEP, 2005) (presenting the principles of prevention, precaution, polluter-pays, and environmental justice and equity as the ‘common core of [environmental] law and policy most relevant to the world’s judiciary’). However, the grouping of ‘principles’ included in different instruments and works can include many different kinds of ideas and is often wide-ranging: eg A. B. M. Marong, ‘From Rio to Johannesburg: Reflections on the Role of International Legal Norms in Sustainable Development’ (2003) 16 Georgetown International Environmental Law Review 21, at 59–64 (identifying a variety of groupings of principles said to constitute ‘legal principles of sustainable development’) and see the discussion of the Rio Declaration at nn. 17–22 and accompanying text. 2 J. Stone, Legal System and Lawyers’ Reasoning (Stanford: Stanford University Press, 1964), 246. The connection between amorphous ideas like environmental principles and Stone’s legal categories of ‘illusory reference’ was made in the editorial introduction to P. Martin and others (eds.), The Search for Environmental Justice (Cheltenham: Edward Elgar, 2015), 2.

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environmental principles across jurisdictions 653 A number of jurisdictions have seen innovative and bold legal developments concerning environmental principles—in constitutional frameworks, in legislation, and in judicial reasoning. The European Union (EU), France, India, Brazil, and different states in Australia stand out as prominent examples.3 The chapter will show how legal developments in these jurisdictions—focusing on India, Brazil, the EU, and New South Wales—involve environmental principles acting as catalysts for legal evolution, within the institutional contexts and doctrinal environments of the particular legal cultures involved. This catalysing effect is often boosted by judicial observation of legal developments concerning environmental principles in other jurisdictions, although not always, and it demonstrates the potential of environmental principles to break new paths of legal reasoning within legal systems, including in light of their nominal connections to similarly named principles in other legal environments. 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 awareness of legal culture is required in thinking about how environmental principles are penetrating, emerging from, and informing legal orders. The chapter concludes that environmental principles are innovative and legally exciting concepts in many legal contexts, which can connect, catalyse, and inspire legal thinking in relation to environmental problems across jurisdictions, but they are also concepts that require care in their analysis across complex legal landscapes.

29.2 Environmental Principles as Legal Connectors 29.2.1 Introduction The idea of legal connection is important in thinking about environmental principles across legal orders.4 This is because environmental principles are not firmly established doctrinal legal principles that reside neatly across the ‘Westphalian duo’ of international and national legal orders.5

3 There are other notable jurisdictions in which environmental principles play significant legal roles (e.g. Pakistani courts adopting the precautionary principle to interpret the Pakistan constitution: Zia v WAPAD PLD 1994 SC 693 [8]), not to mention the international legal jurisprudence that has developed around certain principles, e.g. Pulp Mills (Argentina v Uruguay) [2010] ICJ Rep 14 [178] (concerning the role of ‘sustainable development’ in international law). 4 This terminology is deliberately different from legal ‘diffusion’ (e.g. W. Twining, ‘Social Sciences and Diffusion of Law’ (2005) 32 Journal of Law & Society 203), which is associated with globally linked legal ideas but implies something common or similar is spread or transposed. No commonality for environmental principles as legal ideas can be assumed, beyond their common nomenclature, nor can their emergence be predominantly framed as a simple migration of ideas from one context to another. 5 Alan Buchanan, ‘Rawls’ Law of Peoples: Rules for a Vanished Westphalian World’ (2000) 111 Ethics 697.

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654 eloise scotford Despite their prevalence in international instruments,6 it is a mistake to think of environmental principles as concepts that are created and defined by public international law that trickle down into national legal systems for implementation.7 They are not akin to universal human rights or international laws of the sea, which are firmly rooted in international law and have established legal identities in national legal systems as a result.8 Environmental principles are subtler norms that have developed in a non-linear fashion within and across states. They are flexible normative vessels that have been devised often for pragmatic and political reasons in different political and legal cultures, creating questions more than providing answers about their legal meanings and relevance. At most, we can generalize that environmental principles—such as the precautionary principle, polluter-pays principle, principle of intergenerational equity, sustainable development principle, and principle of integration—are generally expressed environmental policy ideas that have a common nomenclature (although not a common grouping)9 and which are increasingly implicated in legal orders globally. As a general rule, environmental principles have no predetermined definitions or fixed legal roles as universal phenomena. On the contrary, their open formulation gives rise to definitional flexibility and their primary role as expositions of policy ideas—to promote precautionary approaches to risk (the precautionary principle) or to resolve environmental problems at source rather than downstream (the principle of rectification at source), for example—can militate against recognizing them as legal norms at all.10 Despite these features, environmental principles are increasingly taking hold in legal orders in a variety of ways. Furthermore, their flexibility as normative concepts allows them to facilitate legal connections across legal orders in a range of non-formal ways. This section explores this ‘globalizing’ dimension of environmental principles as legal ideas11—investigating how they are developing as legal connectors across legal orders without constituting formal and universal norms of public international law. 6 For a survey of such instruments, see nn. 15–23 and accompaying text. 7 Cf. B. Boer, ‘Institutionalising Ecologically Sustainable Development: The Roles of National, State, and Local Governments in Translating Grand Strategy into Action’ (1995) 31 Willamette Law Review 307; B. Preston, ‘Leadership by the Courts in Achieving Sustainability’ (2010) 27 Environmental and Planning Law Journal 321. Fajardo del Castillo more aptly describes environmental principles as ‘connecting vessels of domestic law and international law, and . . . also in the relations between international environmental law and general international law, or other specialist fields of international law’: T. Fajardo del Castillo, ‘Environmental Law Principles and General Principles of International Law’ in L. Kramer and E. Orlando, Principles of Environmental Law (Cheltenham: Edward Elgar, 2018). 8 Environmental principles might be seen as an alternative form of norm whilst there is no settled internationally recognized right to a clean or healthy environment: L. Kramer and E. Orlando, ‘Introduction’ in Kramer and Orlando (eds.), Principles of Environmental Law. 9 i.e. different groups of environmental principles appear in legal instruments in different legal contexts. 10 Most notably, the Dworkinian model of legal principles explicitly contrasts principles from policy: R. Dworkin, Taking Rights Seriously (London: Duckworth, 2nd edn. 1978), 82–4. 11 The globalizing evolution of environmental principles reflects William Twining’s observations that globalization, as a legal phenomenon, involves much more complicated relationships and interactions than a simple vertical hierarchy of legal norms from the international plane to the national or local: W. Twining, ‘Globalisation and Comparative Law’ in E. Örücü and D. Nelken (eds.), Comparative Law: A Handbook (Oxford: Hart Publishing, 2007). See also P. Schiff Berman, ‘The Evolution of Global Legal Pluralism’ in R. Cotterrell and M. Del Mar (eds.), Authority in Transnational Legal Theory: Theorising Across Disciplines (Cheltenham: Edward Elgar, 2016).

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environmental principles across jurisdictions 655

29.2.2 Connection through Soft Law Instruments The first manifestation of the roles of environmental principles as legal connectors can be seen through their proliferation in soft law instruments. Whilst some individual environmental principles qualify as principles of customary international law—notably the principle of prevention and elements of sustainable development12—the idea of environmental principles constituting a recognized collection of substantive environmental policy norms has to date only found favour in international soft law instruments. States have made nonbinding commitments to various sets of environmental principles in a succession of international instruments, developing a pattern of such principles acting as codes of agreement and symbols of global environmental aspiration. The most prominent example of this is the 1992 Rio Declaration on Environment and Development,13 which represents a watershed statement—but also a compromised legal agreement14—in relation to sustainable development. Notably, it built on the 1987 Brundtland Report,15 which was the first international statement concerning sustainable development, again in the form of a soft law agreement resulting from the United Nations-sponsored World Commission on Environment and Development. The Brundtland Report set out the first international consensus on sustainable development as a global goal, and contained an annex of ‘legal principles’ concerning environmental protection and sustainable development, which set the scene for the Rio principles to come.16 The subsequent Rio Declaration contains twenty-seven principles that are a mixture of goals concerning environment and development issues,17 agreements to develop laws and regulations at national level,18 principles of customary international law,19 principles of environmental

12 Iron Rhine Arbitration, Belgium/Netherlands, Award, ICGJ 373 (PCA 2005) (prevention); P. Sands and J Peel and ors, Principles of International Environmental Law (Cambridge: Cambridge University Press, 4th edn. 2018), ch 6 (sustainable development). 13 United Nations Conference on Environment and Development, ‘Rio Declaration on Environment and Development’ (14 June 1992) UN Doc. A/CONF.151/26 (Vol I) 31 ILM 874 (1992) (‘Rio Declaration’). 14 The prior Brundtland Report had called for an international charter to ‘prescribe new norms for . . . state behaviour to maintain livelihoods and life on a shared planet’: World Commission on Environment and Development, ‘Report of the World Commission on Environment and Development: Our Common Future’ (20 March 1987) UN Doc. A/42/427 (‘Brundtland Report’), 332. 15 As well as the Stockholm Declaration 1972 (United Nations Environment Programme, ‘Declaration of the United Nations Conference on the Human Environment’ (16 June 1972) UN Doc. A/CONF.48/14, 11 ILM 1461 (1972)) and UN World Charter for Nature 1982 (28 October 1982) UN Doc. A/RES/37/7. 16 Brundtland Report, Annexe 1. 17 Such as recognizing that humans are the ‘centre of concerns for sustainable development’, recognizing the interdependence of peace, development, and environmental protection, promoting an international economic system that leads to economic growth but also addresses environmental degradation, and ensuring the full participation of women, young people, and indigenous communities in achieving sustainable development: Rio Declaration principles 1, 12, 20–2, 25. 18 e.g. Rio Declaration, principle 11 (states to enact ‘effective environmental legislation’); principle 13 (states to develop national law on liability and compensation for victims of environmental damage). 19 Rio Declaration, principle 2 (sovereign right to exploit natural resources and responsibility not to cause damage to other states); principle 18 and 19 (cooperation in relation to transboundary environmental harm); principle 27 (cooperation generally).

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656 eloise scotford policy, and commonly recognized environmental rights and procedures.20 Within these Rio principles are a range of policy approaches that are generally articulated as ‘environmental principles’,21 including a formulation of the precautionary principle in Article 15; the polluterpays principle in Article 16; the principle of intergenerational equity in Article 3; and the integration principle in Article 4. Furthermore, all the Rio principles, as a group, constitute a manifesto for sustainable development, sometimes also referred to as the ‘principle’ of sustainable development. The varied form of these Rio Declaration principles shows they were not designed solely as a specific set of ‘environmental principles’. Indeed, they each represent very different ideas about, and approaches to, environmental protection, with varying histories as policy ideas,22 and many of the Rio Principles are not commonly identified as ‘environmental principles’ in legal scholarship or national legal developments. Rather, the Declaration represents a symbolic incarnation of certain environmental principles as a group (within a group), promoting the identification of certain policy principles as ‘environmental principles’ in a transnational and quasi-legal context. The momentum of the Rio Declaration, and the international drive for the normativity of environmental principles, has continued with subsequent efforts to formulate further international statements of environmental principles. These include updated UN-sponsored soft law agreements on sustainable development,23 and expert formulations of internationally recognized environmental law principles,24 including most recently (at the time of writing) the draft Global Pact for the Environment.25 The draft Pact lists a new grouping of environmental principles, ‘applicable to the wide sphere of the environment . . . each devoted to one aspect of international law and development—most of which enjoy consensus’,26 and it represents a reinvigorated quest for their formal international legal recognition. The proponents 20 e.g. Rio Declaration, principle 10 (access to information and rights of participation in environmental decision-making for individuals, supported by access to judicial and administrative proceedings); principle 17 (environmental impact assessment). 21 The Rio principles are not only concerned with environmental goals, but economic and social goals as well. 22 e.g. the polluter-pays principle originated as an OECD policy idea (1972 Council Recommendation on Guiding Principles concerning International Aspects of Environmental Policies, OECD, C(72) 128 final) and the precautionary principle had established itself in certain national legal orders (notably German law) well before the Rio Declaration (de Sadeleer, Environmental Principles, at 125–9). 23 World Summit on Sustainable Development, ‘Johannesburg Declaration on Sustainable Development’ (4 September 2002) UN Doc. A/CONF.199/20; UN Conference on Sustainable Develop ment, ‘The Future We Want—Outcome Document’ (27 July 2012) A/RES/66/288 [15]; UN Summit for the Adoption of the Post-2015 Development Agenda, ‘Transforming our World: the 2030 Agenda for Sustainable Development’ (25 September 2015) A/RES/70/1 (although this agreement focused on establishing sustainable development ‘goals’). 24 ‘ILA New Delhi Declaration of Principles of International Law Relating to Sustainable Development’ (9 August 2002) UN Doc. A/CONF.199/8; IUCN 1st World Congress on Environmental Law, ‘IUCN World Declaration on the Environmental Rule of Law’ (April 2016, Rio de Janeiro), available at: http:// web.unep.org/environmentalgovernance/erl/iucn-world-declaration-environmental-rule-law (whilst these are recognized as a precursor to the Draft Global Pact for the Environment, they again contain a different albeit overlapping set of principles). 25 ‘Project: Global Pact for the Environment’ (La Sorbonne, 24 June 2017), available at: http:// pactenvironment.org/global-pact-for-the-environment-projet-2/. 26 L. Fabius, President of the Pact’s Expert Group, speech launching the draft Global Pact for the Environment (Sorbonne University, 24 June 2017).

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environmental principles across jurisdictions 657 of the draft Pact aim to overcome the limitations of the Rio Declaration as a soft law instrument and to create a treaty that will become the ‘cornerstone of international environmental law’ which will ‘trigger a legislative and jurisprudential dynamic in each State Party’.27 Again, however, this instrument contains a different, reconfigured grouping of environmental principles and related environmental norms, both refining and diverging from previous soft law instruments on sustainable development,28 and highlighting the unsettled and evolving status of environmental principles, amongst other environmental norms, as a group of internationally recognized ideas. To date, the Rio Declaration and its successor soft law instruments have been impactful in building normative connections across legal cultures around its sustainable development agenda and its environmental principles in particular. A transnational lexicon of environmental principles in policy and increasingly legal contexts has been triggered.29 These developments often refer to the Rio Principles as inspiration, or are otherwise linked to the development of international sustainable development principles. For example, the Australian ‘ESD [Ecologically Sustainable Development] process’—a national government policy process triggered by the Brundtland Report but also initiated for reasons of domestic policy30—resulted in a 1992 National Strategy on Ecologically Sustainable Development, which contained a range of policy principles (including integration, intergenerational equity, and conservation of biological diversity) that were partly influenced by the concurrent Rio process.31 These principles have subsequently been adopted in legislative form in key Australian environmental statues,32 and Australian judicial decisions recognize their roots in the Rio Declaration.33 In France, the development of an Environmental Code in 2000 sought to summarize and standardize principles of environmental law in general legal provisions, and articulated four key environmental principles—the precautionary principle, the principle of preventive and corrective action, the polluter-pays principle, and the principle of participation—that ‘inspire’ the protection, enhancement and management of the natural environment ‘within the framework’ of applicable French laws.34 These overarching, legally relevant principles in 27 ‘The Reasons for the Pact’, available at: http://pactenvironment.org/aboutpactenvironment/lesraisons-du-pacte/. 28 e.g. new provisions appear (e.g. Art. 1 on the universal right to an ecologically sound environment, Art. 2 on the universal duty to take care of the environment, Art. 12 on environmental education, Art. 14 on the role of non-state actors and sub-national entities), some principles are newly articulated (e.g. Art. 5 on prevention, including EIA within it), some established principles of international environmental law are absent (e.g. Rio Declaration, principle 18 on cooperation in a transboundary context). 29 See E. Scotford, Environmental Principles and the Evolution of Environmental Law (Oxford: Hart Publishing, 2017), 70–6. 30 For more detail, see ibid., at 99–101. 31 See also the Australian Intergovernmental Agreement on the Environment, also agreed in 1992, to allocate policy-making responsibilities between the Australian federal and state governments, and which contained a set of ‘principles of environmental policy’ that closely resembled many of those principles found in the Rio Declaration and Brundtland Report. See ibid., at 101–6. 32 See nn. 44–5. 33 e.g. Leatch v Director General of National Parks and Wildlife Service (1993) 81 LGERA 270 (establishing the precautionary principle as a relevant legal consideration in certain environmental decision-making). 34 Article L110-1 Environmental Code 2000 (France).

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658 eloise scotford French law are said to have been inspired by similar Rio Principles,35 albeit that they have different wordings. At a supranational level, in EU law, fundamental Treaty articles concerning sustainable development were introduced in both the Treaty on European Union (TEU) and Treaty on the Functioning of the European Union (TFEU) following the Rio Declaration.36 For example, Article 11 TFEU now provides a legally binding obligation to integrate environmental protection into all EU policy-making in the following terms: ‘[e]nvironmental protection requirements must be integrated into the definition and implementation of the Union’s policies and activities, in particular with a view to promoting sustainable development’. From these kinds of examples across jurisdictions, it is tempting to conclude that a customary form of international law has been generated, with environmental principles being incrementally established as common legal principles globally, growing from their origins in international soft law instruments. Ben Boer refers to the ‘globalisation’ and ‘internationalisation’ of environmental law, with common approaches and principles developed and transferred from one international convention to the next and being absorbed into national law.37 However, the legal connections formed by the Rio environmental principles are not so settled or robust. Whist certain principles have obtained the status of customary international law, as indicated above, this has not been through a process of top-down adoption of environmental principles from international instruments. Each principle recognized in international environmental law has had its own unique, contingent journey to develop a pattern of state practice,38 and many environmental principles are far from reaching this recognized status in international law. Scholars of public international law have suggested that most oft-discussed environmental principles, such as the precautionary principle and polluter-pays principle, are ‘twilight norms’ or that they represent a modern and different international law.39 The very features of environmental principles that make them effective legal connectors—their aspirational force, generality and flexibility—also undermine their potential character as universal legal concepts across different jurisdictions and legal systems.40 They are found in instruments of soft law for a reason. They are the product of 35 M. Hautereau-Boutonnet and J.-C. Saint-Pau (eds.), L’Influence du Principe de Précaution en Droit de la Responsabilité Civile et Pénale Comparé (Mission de Recherche Droit & Justice 2016) 493. 36 Article 12 Treaty of Amsterdam, amending the Treaty on the European Union, the Treaties Establishing the European Communities and Related Acts [1997] OJ C340; now Art. 11 TFEU; Arts. 3(3), (5), 21(2)(f) TEU, recital 9. In 2000, the principle of sustainable development was then included in Art. 37 Charter of Fundamental Rights of the European Union ([2000] OJ C364/1). 37 B. Boer, ‘The Rise of Environmental Law in the Asian Region’ (1999) 32 University of Richmond Law Review 1503, at 1508–9. 38 J. E. Viñuales, ‘The Rio Declaration on Environment and Development: Preliminary Study’ in J. E. Viñuales (ed.), The Rio Declaration on Environment and Development: A Commentary (Oxford: Oxford University Press, 2015). 39 U. Beyerlin, ‘Different Types of Norms in International Environmental Law: Policies, Principles and Rules’ in D. Bodansky, J. Brunnée, and E. Hey (eds.), The Oxford Handbook of International Environmental Law (Oxford: Oxford University Press, 2007), 426; D. Bodansky, ‘Customary (and Not So Customary) International Environmental Law’ (1995) 3 Indiana Journal of Global Legal Studies 105. 40 de Sadeleer also argues that environmental norms have become more uncertain due to the ‘shattering of traditional legal boundaries’, increasing regulatory flexibility, and uncertain scientific information: de Sadeleer, Environmental Principles, at 255–8.

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environmental principles across jurisdictions 659 pragmatism, compromise, and approximated visions of sustainable development and environmental protection that fall short of uniform and binding legal consensus.41 Furthermore, the groups of environmental principles that are picked up in different national and transnational contexts vary, with new principles altogether being incorporated in some instruments or bodies of case-law.42 In the example of the French Environmental Code above, we see four principles promoted as relevant to their body of national law, including the ‘principle of participation’. By contrast, in the Australian context, following the ESD process described above,43 a different grouping of ESD principles has been introduced as prescribed statutory purposes of environmental legislation at both state and federal levels, usually comprising: the integration principle,44 the precautionary principle, the polluterpays principle (or a wider principle promoting ‘improved valuation, pricing and incentive mechanisms’),45 the principle of intergenerational equity, and the conservation of biological diversity and ecological integrity. These different groupings of environmental principles show that their legal evolution is idiosyncratic in different contexts and that the Rio Declaration is not a comprehensive blueprint for these principles.46 These varying groupings also highlight how the process of developing environmental principles in national and regional contexts has not simply been one of the Rio Declaration trickling down into national law. Whilst the Rio Declaration has inspired policy and legal developments—and was intended to do so47—environmental principles have also evolved autonomously in some legal contexts,48 via dialogical processes with the international sustainable agenda in others,49 and then along independent paths 41 Dinah Shelton argues that soft law instruments have proliferated for a range of reasons, including the bureaucratization of international institutions; the unwillingness of states to commit to hard law; and the ‘growing strength and maturity of the international system’ so that some relations between states can be governed by etiquette, discourse or informal commitments rather than ‘law: D. Shelton, ‘Law, Non-Law and the Problem of “Soft Law” ’ in D Shelton (ed.), Commitment and Compliance: The Role of Non-Binding Norms in the International Legal System (Oxford: Oxford University Press 2000),12’. In the case of environmental principles, their flexible and open-ended formulations also make them convenient vehicles for pragmatic compromise, and they may mean different things to different parties agreeing to them: de Sadeleer, Environmental Principles, at 259 (‘They inevitably facilitate the adoption of reforms that do not dare proclaim their true nature’). 42 e.g. the principles of substitution and proximity in EU law; or the principle of resilience in Art. 16 of the draft Global Pact (n. 25). 43 See nn. 30–1 and accompanying text. 44 As variously defined in this context: ‘decision-making processes should effectively integrate both long-term and short-term economic, environmental, social and equitable considerations’ (Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’), s. 3A(a)); ‘ecologically sustainable development requires the effective integration of social, economic and environmental considerations in decision-making processes’ (Protection of the Environment Administration Act 1991 (NSW) (‘POEA Act’), s. 6(2)). 45 e.g. EPBC Act, s. 3A(e); cf. POEA Act, s. 6(2)(d). These variations go well beyond Rio Principle 16 which is concerned with the internalization of environmental costs. 46 This is even at the international level, as the recent Draft Global Pact illustrates: n. 25. 47 Rio Declaration principle 11; UNCED, Agenda 21, UN Doc. A/CONF.151/PC/100/Add.1 (1993). 48 e.g. see nn. 22, 42. 49 e.g. in the EU context, the 5th Environmental Action Programme explained how the evolving EC sustainable development agenda in 1992 aimed both to build on the Brundtland Report principles and also to contribute to the outcomes of the 1992 WCED conference that led to the Rio Declaration: 5th EC Environmental Action Programme, ‘Towards Sustainability: A European Community Programme of Policy and Action in Relation to the Environment and Sustainable Development’ [1993] OJ C138/5.

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660 eloise scotford once the global influence triggered their existence in different national and supranational settings, as explored further in section 29.3. Rather than presenting a uniform global normative framework,50 it is the idea of ‘environmental principles’ that has become powerful legally.51 Their symbolic force as quasi-legal norms,52 along with their flexibility and definitional ambiguity, allows environmental principles to have ‘resonance, power and creativity’ as they evolve and apply across contexts, transcending conventional patterns of international norm development.53 De Sadeleer identifies environmental principles as ‘post-modern’ norms, or ‘directing principles’, that ‘construct the bridges needed to provide rationality to a [global environmental law] system characterized by multiplicity rather than unity’.54 Whilst these non-conventional features of environmental principles can also render environmental principles vulnerable to competing interpretations, indeterminacy, and even bad faith application, they are the essence of their character as legal connectors. To exemplify this phenomenon, take the precautionary principle. Principle 15 of the Rio Declaration refers to a ‘precautionary approach’ whereby scientific uncertainty should not justify the postponement of cost-effective preventive action. This version of the precautionary principle has been referenced in national policy and legal contexts as being related to, or inspiration for, localized versions of the principle.55 Having said that, the principle has also developed autonomously in some legal settings,56 and has a wide range of meanings in different contexts.57 This definitional variation can be seen across different international conventions. In contrast to Rio Principle 15, the UN Framework Convention on Climate Change (UNFCCC) elaborates that anticipatory and preventive measures should be taken to mitigate climate change (not all versions of the precautionary principle require preventive action to be taken),58 whilst the Cartagena Protocol on Biosafety provides a comprehensive regime for the transfer, handling, and use of living modified organisms ‘in accordance with 50 Cf. T. Yang and R. V. Percival, ‘The Emergence of Global Environmental Law’ (2009) 36 Ecology Law Quarterly 615. 51 As Gilhuis puts it, ‘principles are in the air’ (P. Gilhuis, ‘The Consequences of Introducing Environmental Law Principles in National Law’ in M. Sheridan and L. Lavrysen (eds.), Environmental Law Principles in Practice (Brussels: Bruylant, 2002), 45). 52 Alhaji Marong finds the distinction between legal and non-legal norms to be ‘largely rhetorical’ in relation to environmental principles: Marong, ‘From Rio to Johannesburg’, at 60–1. 53 R. W. Kates, T. M. Parris, and A. A. Leiserowitz, ‘What is Sustainable Development? Goals, Indicators, Values and Practice’ (2005) 47(3) Environment: Science and Policy for Sustainable Development 8, at 20. 54 de Sadeleer, Environmental Principles, at 261 and part II generally. He explains that directing principles ‘serve to reconcile differing legal systems’ that multiply and intersect, playing ‘an important role in maintaining the links among weakly structured networks, ensuring the practical effectiveness of the legal system as a whole’ (ibid., at 250). 55 e.g. UK Interdepartmental Liaison Group on Risk Assessment, ‘The Precautionary Principle: Policy and Application’ (2002), available at: http://www.hse.gov.uk/aboutus/meetings/committees/ilgra/pppa. htm; see nn .31–5 and accompanying text. 56 See n. 22. 57 The definition of the precautionary principle is notoriously contested: O. Pedersen, ‘From Abundance to Indeterminacy: The Precautionary Principle and its Two Camps of Custom’ (2014) 3(2) Transnational Environmental Law 323, at 470–8. 58 Article 3(3) United Nations Framework Convention on Climate Change (adopted 9 May 1992, entered into force 21 March 1994) (1992) 31 ILM 851.

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environmental principles across jurisdictions 661 the precautionary approach’.59 Indeed, Jonathan Weiner highlights over fifty incarnations of the principle in international law instruments.60 At the national level, we see expressions of the precautionary principle that seem very similar to the Rio Declaration but also introduce new ideas,61 as well as more general statements of the principle that are open to interpretation within a particular regulatory and legal community.62 Even within a single body of jurisprudence interpreting and applying the principle, inconsistent versions of the precautionary principle can be applied in different regulatory scenarios.63 These different formulations of the precautionary principle show that it is not a single normative standard, rather it is an approach to regulating risk that can manifest in different ways, more or less specific, depending on the nature of the risk, the form of regulation adopted, and the particular legal setting. Furthermore, it is a highly politicized concept that can lead to polemic arguments about its role in decision-making based on extreme definitions of the principle.64 In short, the principle leaves room for debate, divergence, and disagreement over how it is to be defined and employed within specific contexts. At the same time, the common nomenclature of the ‘precautionary principle’, and its prominent profile in the Rio Declaration, provides inspiration and legitimacy for the introduction and development of this type of regulatory approach, which is increasingly formulated in national and supranational legal architectures.

29.2.3 Connection through Judicial Dialogue One prominent way that environmental principles serve as inspiring and legitimizing legal connectors across jurisdictions is through transnational judicial dialogue. This type of connectivity has occurred in both ‘non-adjudicative’ judicial discussion and formal judgments.65 In different ways, these are explicit and public statements connecting and encouraging legal efforts to recognize or apply certain environmental principles across d ifferent legal systems, beyond the formal structures of international law. These judicial connections 59 Art. 1 Cartagena Protocol on Biosafety (adopted 29/1/2000, entered into force 11/9/2003) (2000) 39 ILM 1027. 60 J. B. Weiner, ‘Precaution’ in Bodansky, Brunee, and Hey (eds.), The Oxford Handbook of International Environmental Law, at 601. 61 e.g. Art. L110-1 Environmental Code 2000 (France) (including a requirement of best available techniques), or extra requirements in NSW POEA Act, s. 6(2)(a) (requiring risk-weighted assessment of options and ‘careful evaluation’ to avoid damage). 62 e.g. Art. 191(1) TFEU, (referring simply to the ‘precautionary principle’ as one of four environmental principles on which EU environmental policy ‘shall be based’). 63 e.g. regulation of pharmaceutical substances compared with the protection of habitats in EU law: see n. 139. 64 C. Sunstein, Laws of Fear: Beyond the Precautionary Principle (Cambridge: Cambridge University Press, 2005). 65 Toby Goldbach highlights the complexity of describing judges’ work outside the courtroom, and argues that much of this ‘non-adjudicative’ work should be categorized as ‘judicial’ activity (rather than the commonly used term ‘extra-judicial’) even if not directly related to a particular case being judged, particularly for seeing the breadth of processes involved in ‘judicial lawmaking’ and the ‘judicialization of politics’: T. S. Goldbach, ‘From the Court to the Classroom: Judges’ Work in International Judicial Education’ (2016) Cornell International Law Journal 617, at 633–4.

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662 eloise scotford are notable both for their transnational legal endorsement of environmental principles and the tensions that they navigate. In particular, judicial dialogue supporting environmental principles as global legal phenomena confronts a fundamental tension between the role of courts in upholding the rule of law and the policy-based nature of environmental principles. Environmental principles present generally stated social goals, representing contestable socio-political positions on environmental issues, which are arguably more appropriately discussed and applied in political rather than in legal fora.66 Furthermore, transnational judicial cross-pollination of environmental principles must navigate the variety of legal cultures in which environmental principles might operate as legal phenomena. In terms of non-adjudicative, transnational judicial discussion endorsing environmental principles as connected legal ideas across jurisdictions, two high profile examples are the 2002 Johannesburg Principles on the Role of Law and Sustainable Development and the 2005 Judicial Handbook on Environmental Law.67 These documents are both UNEP-sponsored initiatives responding to the Rio Declaration and its follow-on international environmental and development efforts. The Johannesburg Principles were drawn up by the Global Judges Symposium alongside the 2002 Johannesburg Declaration on Sustainable Development,68 which supported and built on the Rio Declaration ten years later. These judicially endorsed principles contain a commitment to adhere to the Rio Principles, which ‘lay down the basic principles of sustainable development’. Furthermore, they contain: [a] full commitment to contributing towards the realization of the goals of sustainable development through the judicial mandate to implement, develop and enforce the law, and to uphold the Rule of Law and the democratic process.69

This general but weighty language contains a conundrum about recognizing environmental principles as common global legal commitments. Environmental principles are not formulated as rules of law but as policies of environmental protection, which are not (yet) fully endorsed by any formal instrument of international law, albeit that some individual principles are recognized, or arguably recognized, as norms of customary international law. The judicial statement here both recognizes the importance of the (not yet legally substantiated) international sustainable development agenda, and offers support for it through the ‘judicial mandate to implement, develop, and enforce the law’. This commitment presents an institutional tension as judges seek to endorse environmental policy positions, which do not have settled or agreed international normative identities, through their judicial functions, particularly in ‘developing’ the law. How controversial this is—as a matter of constitutional principle or legal doctrine—will depend on the legal and political traditions of the different jurisdictions from which these judges come, and on the extent to which environmental policy positions are already endorsed in national legislation or constitutions. This general judicial commitment is perhaps an unsurprising development 66 This kind of justiciability question also arises in relation to legal disputes involving climate change policy. See E. Fisher, E. Scotford, and E. Barritt, ‘The Legally Disruptive Nature of Climate Change’ (2017) 80(2) Modern Law Review 173, at 180 and generally. 67 UNEP, ‘Johannesburg Principles on the Role of Law and Sustainable Development’, Global Judges Symposium (Johannesburg, South Africa, 18–20 August 2002); UNEP, Judicial Handbook. 68 UN World Summit on Sustainable Development, Johannesburg Declaration on Sustainable Development (4 September 2002) A/CONF.199/20. 69 Johannesburg Principles.

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environmental principles across jurisdictions 663 insofar as soft law mechanisms, such as the Rio Declaration, proliferate, but it is legally unusual and raises questions about the ‘judicialization of politics’ under the guise of a commitment to the rule of law.70 The subsequent Judicial Handbook on Environmental Law sought to confront this conundrum more directly. The Handbook was developed in 2005 by a group of environmental judges from across the world and aims to ‘identify a common core of law and policy most relevant to the world’s judiciary’.71 This exercise was justified in light of the fact that [previous] decades of legal developments have led to the emergence of basic principles of environmental protection that are recognized in international and national law, which have in turn informed the development of environmental law by giving meaning to concepts not yet contained in formal legal instruments.72

On this basis, the Handbook explores four ‘key environmental principles [that have] developed over the past several decades’:73 prevention, precaution, polluter-pays, and environmental justice and equity. This collaborative judicial effort seeks to recognize that these particular environmental principles are increasingly common and legally relevant across international and national legal systems, even though they are ‘not yet contained in formal [international] legal instruments’. This judicial endorsement recognizes their global legal relevance, but also acknowledges that, whilst these environmental principles are ‘influ ential’ in most legal systems, they ‘sometimes may be applied differently’.74 Again, judicial support for these principles recognizes the role of environmental principles as legal connectors that ‘can offer insight into the purpose and thrust of the various legal mechanisms that have been built upon them’ across legal systems.75 At the same time, it recognizes that they are unusual creatures as principles of environmental policy that do not constitute binding legal commitments internationally and which must be accommodated within different legal orders. More recent judicial activity supporting international statements of environmental principles has been collaborative, with prominent environmental law jurists acting as participants in broader conferences and expert groups that have generated soft law statements of environmental principles—including the IUCN World Declaration on the Environmental Rule of Law76 and the Draft Global Pact for the Environment discussed above.77 These developments show that judges are significant actors in the ‘transnational processes’ that are driving the normative development of environmental principles.78 The second way in which judicial dialogue fosters the role of environmental principles as legal connectors is through legal judgments. This aspect is further explored in Section 29.3, 70 See Goldbach, ‘From the Court to the Classroom’. 71 UNEP, Judicial Handbook, introduction by K. Toepfer, at iv. 72 Ibid., at 19. 73 Ibid., at 22. 74 Ibid., at 22. 75 Ibid., at 21. 76 This recognizes the ‘essential role that judges and courts play in building the environmental rule of law through the effective application of laws at national, sub-national, regional, and international levels’: IUCN World Declaration, preamble. Notably this Declaration was accompanied by the establishment of the Global Judicial Institute for the Environment, formalizing a forum for ‘international convergence of judges and environmental law’, see: https://www.iucn.org/commissions/world-commission-environmental-law/ events/27-9-april-2016-world-environmental-law-congress. 77 See n. 25 and accompanying text. 78 P. Zumbansen, ‘Lochner Disembedded: The Anxieties of Law in a Global Context’ (2013) 20 Indiana Journal of Global Legal Studies 29, at 57ff; cf. Goldbach, ‘From the Court to the Classroom’ (suggesting that judges have not yet been recognized as significant actors in transnational norm development).

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664 eloise scotford but, briefly, judicial reasoning in some cases appeals to the use of environmental principles in other jurisdictions—whether referring to their presence in international soft law instruments or in judicial reasoning by other courts—to support the development of legal reasoning based on or influenced by environmental principles. A prominent example is the Indian Supreme Court decision of Vellore Citizens Welfare Forum v Union of India, in which Justice Kuldip Singh (for the Court) recognized that the precautionary principle and polluter-pays principle were ‘part of the law of the country’, having first recognized that these were part of a group of ‘salient principles’ of sustainable development ‘culled out from the Brundtland Report and other international documents’.79 This appeal to international soft law was significant in the Court’s reasoning which went on to find that the Indian constitution and domestic statutes also reflected these principles (even though they were not explicitly named in these domestic instruments), allowing the court to define and apply the principles in this case concerning pollution arising from tanneries in the state of Tamil Nadu. This case has been criticized by academics for the quality and nature of its legal reasoning, as discussed below,80 but it is noteworthy for its appeal to international sustainable development instruments in connecting and justifying the Court’s reasoning based on environmental principles. Another example of transnational judicial inspiration in developing reasoning based on environmental principles can be seen in the New South Wales Land and Environment Court (NSWLEC) decision of Telstra Corporation Ltd v Hornsby Shire Council.81 This decision was a landmark development in the Court’s reasoning based on the precautionary principle. The precautionary principle is found in New South Wales legislation, partly defining ‘ecologically sustainable development’ (ESD) along with other environmental principles.82 The principle was applied as a legally relevant consideration that informed the ‘public interest’,83 which was required to be considered under the NSW planning statute at issue. In this case, the Court was deciding a merits appeal from a local authority planning decision, which had refused to approve the construction of a mobile phone tower in a residential area on the basis of suggested harm to human health and the precautionary principle in particular. The judgment is not notable for finding that the precautionary principle was a legally relevant consideration in this type of administrative decision-making—this had been previously established84—but for prescribing how the principle should be applied in making planning decisions. Preston CJ set out in detail how the principle should be applied, appealing inter alia to judgments in other jurisdictions (including the India, Pakistan, New Zealand, the EU, and the European Free Trade Association) as well as international sustainable development instruments concerning environmental principles to support his reasoning. This is a meticulously reasoned judgment that represents a significant doctrinal innovation in its substantive application of the precautionary principle, relying partly on transnational developments to justify its reasoning. It was not the precise details of those transnational legal developments that dictated how the Court reasoned in

79 Vellore Citizens Welfare Forum v Union of India AIR 1996 SC 2715. 80 See nn. 151–2 and accompanying text. 81 [2006] NSWLEC 133; (2006) 67 NSWLR 256. 82 POEA Act, s. 6(2); see n. 45. 83 Environmental Planning and Assessment Act 1999 (NSW), s. 79C(1)(e). 84 BGP Properties v Lake Macquarie CC [2004] NSWLEC 399; (2004) 138 LGERA 237 [108].

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environmental principles across jurisdictions 665 Telstra,85 but the momentum of legal developments relating to the precautionary principle (and ESD principles generally) globally that supported the NSWLEC in this instance of legally applying an environmental principle. Preston CJ explicitly acknowledged the significance of this jurisdictional effort in supporting a broader ‘paradigm shift [to a world] where a culture of sustainability extends to institutions, private development interests, communities and individuals’.86 These examples of legal reasoning show how environmental principles can act as powerful legal connectors through court judgments,87 offering support for legal reasoning, even when the legal materials and issues are quite different in the specific cases involved. Appeal to a broader global sustainable development agenda, reflected in environmental principles, is used to justify reliance on environmental principles in legal reasoning in particular jurisdictional contexts. These developments highlight that environmental principles are not uniform legal ideas to be applied across legal institutions globally, since they must operate in very different legal environments—the constitutional framework for environmental principles in the Indian case Vellore above is very different from the detailed planning legislation that the NSWLEC had interpret in applying ESD principles in the Telstra decision.88 Nonetheless, environmental principles can be powerful ideas that link, support, and trigger judicial reasoning relating to environmental protection.

29.2.4 Connection through Legal Scholarship A third way in which environmental principles act as legal connectors is through environmental law scholarship. A significant body of academic writing has developed—in textbook writing, monographs, and journal articles—in which environmental principles are presented as global conceptual centrepieces for the subject of environmental law.89 In part, this scholarship is responding to the soft law and judicial developments outlined above, but there are more fundamental reasons for the scholarly preoccupation with environmental principles. These reasons relate both to the perceived need for environmental law to tackle environmental problems, and to the legal problems that environmental law faces as a discipline.90 85 As I have written elsewhere, that would be impossible, since these different sources highlighted different aspects and interpretations of the principle’s meaning and application: Scotford, Environmental Principles and the Evolution of Environmental Law, at 233. 86 Telstra, at [120]. 87 There are other examples, such as AP Pollution Control Board v Nayudu AIR 1999 SC 812 (India, principle of intergenerational equity); Fishermen and Friends of the Sea v The Minister of Planning, Housing and the Environment (Trinidad and Tobago) [2017] UKPC 37 (UK Privy Council, polluter-pays principle). 88 Not to mention the jurisdictions of these two courts being very different. 89 For a survey of this scholarship, see Scotford, Environmental Principles and the Evolution of Environmental Law, at 8, and more recently Kramer and Orlando (eds.), Principles of Environmental Law with their ‘Encyclopedia’ of scholarly analysis of environmental principles internationally. 90 These two types of reasons for the popularity of environmental principles in environmental law scholarship are outlined at length in Scotford, Environmental Principles and the Evolution of Environmental Law, at chapter 2, along with historical reasons that led to environmental principles being established as the ‘lingua franca’ of environmental law scholars.

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666 eloise scotford In terms of representing legal solutions to environmental problems, environmental rinciples represent a powerful lexicon and conceptual vehicle for scholars who adopt a p purposive approach to environmental law. In recognizing the urgency and scale of environmental problems, scholars call for legal innovations to address them and to bring about a paradigm shift of behaviour within society.91 Such legal innovations include environmental principles, which might act as a bridge between good environmental outcomes and the legal rules and decision-making that will deliver them.92 In this way, scholars are highlighting the instrumental importance of legal structures and norms for bringing about social change to promote environmental outcomes. Environmental principles are seen to have legal roles in ‘structuring institutions and decision-making processes’ to achieve the environmental goals embodied in environmental principles as policy ideas.93 Environmental principles should not be mere ‘motherhood’ statements,94 but normative concepts that close the ‘gap between political rhetoric and practical action’.95 Environmental principles are seen as particularly well suited to this task, since they can reflect the ‘interdependent, holistic and global dimension of environmental issues’.96 This approach reflects the transnational judicial ambitions outlined above to weave values that support environmental protection ‘into the fabric of our societies’ through the institutional roles of judges,97 ‘particularly through applying principles of sustainable development’.98 It also reflects the global ambitions for environmental principles in the international soft law instruments outlined above.99 The vision of environmental principles as legal vehicles for social change is not purely instrumental. For some scholars, there is a strong ethical and jurisprudential basis for the role of environmental principles as socially transformative legal concepts. In this way, Klaus Bosselmann presents an ethical case for the ‘legal principle’ of sustainability.100 From 91 e.g. B. Boer, ‘Implementation of International Sustainability Imperatives at a National Level’ in K. Ginther, E. Denters, and P. de Waart (eds.), Sustainable Development and Good Government (Leiden: Martinus Nijhoff Publishers, 1995), 117–18; N. A. Robinson, ‘Evolved Norms: A Canon for the Anthropocene’ in C. Voigt (ed.), Rule of Law for Nature: New Dimensions and Ideas in Environmental Law (Cambridge: Cambridge University Press, 2013). 92 e.g. J. Verschuuren, ‘Sustainable Development and the Nature of Environmental Legal Principles’ (2006) 9(1) Potchefstroom Electronic Law Journal 17 (environmental principles are the ‘necessary medium for ideals of sustainable development to find their way into concrete rules’). See also A. Ross, Sustainable Development Law in the UK: From Rhetoric to Reality (Abingdon: Earthscan, 2012); Kramer and Orlando, ‘Introduction’. 93 S. Smith, ‘Ecologically Sustainable Development: Integrating Economics, Ecology, and Law’ (1995) 31 Willamette Law Review 261, at 266. 94 D. Farrier and E. Fisher, ‘Reconstituting Decision Making Processes and Structures in Light of the Precautionary Principle’ (1993) Institute of Environmental Studies, The University of New South Wales), 229. 95 Marong, ‘From Rio to Johannesburg’, at 49. 96 Kramer and Orlando, ‘Introduction’. 97 UNEP, Global Judges Programme (2005), message of Klaus Toepfer. 98 B. Preston, ‘The Role of the Judiciary in Promoting Sustainable Development: The Experience of Asia and the Pacific’ (2005) 9(2) Asia Pacific Journal of Environmental Law 109, at 211 (arguing that individual judges around the world should thereby ‘each work towards the common goal of achieving an environmentally sustainable future’). 99 See section 29.2.2. In the accumulation of soft law statements on environmental principles, they are seen as ‘innovative legal tools’ for the ‘progressive development of legal and policy regimes for the conservation and sustainable use of nature at all governance levels’ (IUCN World Declaration, preamble). 100 K. Bosselmann, The Principle of Sustainability: Transforming Law and Governance (Farnham: Ashgate, 2008).

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environmental principles across jurisdictions 667 ethical roots in ecocentrism, Bosselmann argues that ‘[t]he principle of sustainability sets jurisprudence and law-making institutions on a new path’ to restoring and maintaining the integrity of the Earth’s ecological systems.101 He argues for a ‘global law’ of sustainability,102 accommodating ecological citizenship across legal systems as the global environment is perceived as ‘our common home’.103 Environmental principles are not only adopted by environmental law scholars as a connected response to environmental problems globally, they also feature as a common scholarly approach to legal problems in environmental law.104 This can be seen in three different ways. First and foremost, environmental law scholars argue that environmental principles can legitimize the subject of environmental law and overcome its perceived immaturity as a discipline.105 Thus, environmental principles, recognized as ‘legal principles’, can cast environmental law in the mould of other legal subjects, which have strong philosophical or doctrinal traditions of legal principles as core legal norms. This approach is seen when scholars present environmental principles as ‘legal principles’ in the Anglo-American tradition of Dworkinian principles that inform judicial reasoning or rationalize bodies of law,106 or in terms of EU law or public international law doctrine, identifying environmental principles as ‘general principles’ of law within those particular bodies of law.107 In each case, environmental principles are identified and characterized according to pre-existing legal models of principles, thereby legitimizing environmental principles as relevantly ‘legal’ and recognizing them as foundational to different bodies of law. Whilst there are some reasons to support the framing of environmental principles in this way,108 there are also inconsistencies between the observed legal roles of environmental principles and these established legal models of principles.109 Scholars also envisage legitimizing legal roles for environmental principles beyond fitting existing models of principles within established fields of law. Environmental principles are seen as legal solutions to the considerable methodological challenges faced by environmental law as a field of practice and inquiry. Thus, environmental principles are thought to provide a central stabilizing frame for the fragmented and rapidly developing body of rules 101 Ibid., at 7. 102 Ibid., at 4. 103 Ibid., at 7. 104 For a deeper analysis of this proposition, see Scotford, Environmental Principles and the Evolution of Environmental Law, at 40–50. 105 On the perceived immaturity of environmental law, see E. Fisher, B. Lange, E. Scotford, and C. Carlarne, ‘Maturity and Methodology: Starting a Debate about Environmental Law Scholarship’ (2009) 21(2) Journal of Environmental Law 213. 106 e.g. M. Doherty, ‘Hard Cases and Environmental Principles: An Aid to Interpretation?’ (2004) 3 Yearbook of European Environmental Law 57. 107 e.g. Marong, ‘From Rio to Johannesburg’, at 57–8. 108 In some judicial reasoning, for example, environmental principles are used in the style of Dworkinian principles to guide reasoning, both in interpreting uncertain rules and otherwise filling gaps in legal reasoning, particularly by refining the purposes of environmental law and employing these to resolve legal issues. See further Doherty, ‘Hard Cases and Environmental Principles’, at 60–7; Scotford, Environmental Principles and the Evolution of Environmental Law, at chapter 4. 109 This can be seen e.g. in cases where the same environmental principle is used differently to inform rules within the same jurisdiction depending on the regulatory context (see n. 139), or where environmental principles are used for functions in legal reasoning not contemplated by established models of legal principles: see Scotford, Environmental Principles and the Evolution of Environmental Law, at chapters 4–6.

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668 eloise scotford that comprise environmental law, serving to rationalize the subject and provide a basis for its evaluation.110 They might also provide a bridge to other disciplines of knowledge, overcoming the inherent interdisciplinarity of environmental law.111 And, most relevantly for their role as global legal connectors, environmental principles might overcome problems of studying laws in multiple jurisdictions—an inevitable challenge in relation to environmental problems that are collective and often transboundary in nature—by providing a common legal reference point between jurisdictions.112 In these different senses, environmental principles are seen as core concepts in environmental law, bolstering the legitimacy of the subject in light of its considerable methodological challenges. Beyond these legal roles for environmental principles in legitimizing environmental law, both on conventional legal grounds or through representing conceptual solutions to fundamental challenges in studying the subject, some scholars present environmental principles as constituting or representing a new legal order for environmental issues. In both pragmatic or theoretical terms, some scholars accept that environmental law needs to be legally redefined to adapt to the environmental problems with which it is concerned, or to pursue fundamental ecological ideals. In both these ways, scholars have relied on environmental principles to redefine environmental law. Thus, on pragmatic grounds, Dan Tarlock argues that the ‘extremely complex and evolving moral and scientific nature of environmental problems ensures that . . . environmental law will be a law about the process of decision, rather than a process of evolving decision rules’, outlining a series of ‘candidate principles of law’ that have emerged in recent times to act as ‘rebuttable presumptions’ in a reflexive vision of environmental decision-making.113 Other scholars adopt a theoretical standpoint for (re)defining environmental law on the basis of environmental principles, whether in recognizing that environmental law already constitutes a new form of legal order based on environmental principles as novel legal norms,114 or that the subject should be fundamentally reoriented on the basis of legal principles such as sustainability and intergenerational equity in order to pursue ideal outcomes of ecological sustainability.115 All these legal roles for environmental principles endorsed in academic scholarship— whether in addressing environmental problems or legal problems—show that there is a significant appetite for conceptual, practical, and theoretical ideas in the subject, which environmental principles are often thought to satisfy. Much scholarly hope is placed in environmental principles. As I have previously argued,116 this hope can be misplaced, whether because there are no universal legal identities for environmental principles across all jurisdictions and legal cultures—historically, conceptually, or in terms of comparative

110 de Sadeleer, Environmental Principles; Verschuuren, ‘Sustainable Development and the Nature of Environmental Legal Principles’, at 39. 111 A. Philippopoulos-Mihalopoulos, Absent Environments: Theorising Environmental Law and the City (Abingdon: Routledge-Cavendish 2007), 136; Bosselmann, The Principle of Sustainability, at 43. 112 eg Preston, ‘Leadership by the Courts in Achieving Sustainability’, at 4. 113 D. Tarlock, ‘Is There a There There in Environmental Law?’ (2004) 19 Journal of Land Use and Environmental Law 213, at 219–20. 114 de Sadeleer, Environmental Principles; see n. 54 and accompanying text. 115 e.g. Bosselmann, The Principle of Sustainability. See also many of the contributions in Voigt (ed.), Rule of Law for Nature. 116 Scotford, Environmental Principles and the Evolution of Environmental Law, at 51–64.

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environmental principles across jurisdictions 669 law methodology;117 or because legal concepts and methodologies from other legal subjects are not applied with care; or because there are dangers in asserting the instrumental operation of environmental principles in achieving positive environmental outcomes through their sheer normative force.118 However, this weighty body of scholarly endorsement of environmental principles does reflect something important about the legal role of environmental principles in environmental law. Again, environmental principles provide a common discourse, connecting queries, concerns, and issues relating to the study of environmental law. They represent allied frustrations, challenges, and ambitions for the subject. The persistent appeal to recognized bodies of environmental principles—even if not always to an identical grouping of principles—shows that environmental law scholars are seeking external frameworks, normative ideas, and centralizing concepts to stabilize the subject, to overcome methodological challenges, or to offer familiar policy bases for institutional responses to the complex environmental problems faced by the subject. The risk in doing so is that scholars seek to tame the untameable,119 and that they overlook the complexities of mapping the subject across multiple dimensions.120 When appraising the legal roles of environmental principles globally, scholars are confronted with a highly complex legal terrain—they are looking not only across different jurisdictions, but also across a variety of histories, types of norm, constitutional and doctrinal traditions, socio-political factors, actors, institutions, and so on. It is in fact the richness and distinctiveness of the legal environments in which environmental principles take on legal roles that can lead to innovative legal developments.

29.3 Environmental Principles as Legal Catalysts 29.3.1 Introduction This section examines some of these rich and distinctive legal environments to show how environmental principles are playing innovative legal roles in different legal cultures. It highlights examples from different jurisdictions around the world,121 which demonstrate two things about the legal roles being played by environmental principles. First, environmental principles often act as catalysts for legal innovation, offering a basis for new legal reasoning concerning environmental protection. To this extent, environmental principles are presenting a transnational legal phenomenon as agents for legal development. 117 P. Legrand, ‘What “Legal Transplants?” ’ in D. Nelken and J. Feest (eds.), Adapting Legal Cultures (Oxford: Hart Publishing, 2001). 118 Instrumental thinking that environmental principles as legal tools can facilitate solutions to environmental problems often fails to acknowledge the ‘complexity of the legal institutions, ideas and processes involved’: Fisher et al., ‘Maturity and Methodology’, at 234. 119 Ibid., at 220. 120 Ibid. 121 For a 2011 compendium of court judgments around the world involving certain environment principles, see R. Ramlogan, Sustainable Development: Towards a Judicial Interpretation (Leiden: Martinus Nijhoff Publishers, 2011).

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670 eloise scotford Having said that, environmental principles do not always perform legal roles, whether because their policy-based nature means legal arguments based on principles are not available,122 or because the legal culture is not (yet) receptive to environmental principles playing roles in legal argument.123 Second, legal innovations concerning environmental principles are not identical, meaning that the legal functions performed by environmental principles across jurisdictions— and the legal worth of environmental principles—cannot be understood in simple terms. If environmental principles are thought only to be useful if they act as legal grounds for invalidating legislation, for example, the complexity of their actual legal roles will be overlooked and the basis of their value miscalculated. In ‘translating’ environmental principles from ‘political slogans to legal rules’,124 the idiosyncrasies of legal cultures and their legal interpretive ‘communities’125—particularly courts—are determinative. Exploring these different examples takes us beyond wondering if and when environmental principles will become ‘legally binding norms’ to appraising their different normative roles.126

29.3.2 The European Union The European Union127 provides a good example of the complexity and contingency of legal roles played by environmental principles. In this legal context, six environmental principles play a key role in the constitutional treaties and the EU legislative framework, both in relation to environmental policy and beyond it.128 These environmental principles are central to the EU’s environmental legislative agenda and reflect an ambition to incorporate considerations of environmental protection and sustainable development into all areas of EU policy. Many EU legislative provisions reflect and reference these principles.129 Alongside this, innovative and distinctive legal dimensions of these principles have developed in the reasoning of the Court of Justice of the European Union (CJEU). In particular, 122 e.g. in EU law, Case C-379/92 Re Peralta [1994] ECR I-3453. 123 e.g. in UK law, R v Secretary of State for Trade and Industry, ex parte Duddridge, The Times 26 October 1995 (CA); [2007] 1 WLR 1780. 124 de Sadeleer, Environmental Principles. 125 R. Cotterrell, ‘Is there a Logic of Legal Transplants?’ in D. Nelken and J. Feest (eds.), Adapting Legal Cultures (Oxford: Hart Publishing, 2001), 80–1. 126 The preoccupation with policy positions becoming ‘legally binding’ in the environmental domain is not limited to environmental principles: D. Bodansky, ‘The Legal Character of the Paris Agreement’ (2016) 25(2) Review of European Comparative and International Environmental Law 142. 127 On the EU context, see the contribution of M. Gehring, E. Lees, and F.-K. Phillips in this volume. 128 Thus the preventive principle, precautionary principle, polluter-pays principle, and the principle of rectification at source are prescribed foundations of EU environmental policy (Art. 191(2) TFEU), whilst the principle of sustainable development and the integration principle are overarching provisions for EU law as a whole (see n. 36). 129 e.g. Art. 1(3) Council & Parliament Regulation (EC) 2006/1907 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) (precautionary principle); Arts. 4(2), 14(1) Council & Parliament Directive (EC) 2008/98 on waste and repealing certain Directives [2008] L312/3, recital 30 (precautionary principle, preventive principle, polluter-pays principle).

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environmental principles across jurisdictions 671 the CJEU employs EU environmental principles to interpret ambiguous legislation,130 to inform legal tests for reviewing EU measures,131 and to generate new tests of legal review.132 In so doing, environmental principles are catalysing legal change in a variety of ways when existing rules or doctrines are insufficient (or perceived to be insufficient) to resolve legal disputes before the Court. The most notable way in which environmental principles are acting as legal catalysts is in developing new tests for administrative review. The precautionary principle in particular has spawned a new body of EU administrative review doctrine, with the CJEU developing a suite of review tests for determining whether decision-making based on the precautionary principle is properly undertaken by public bodies acting within the scope of EU law. The precautionary principle is not used as an independent ground of review in this respect—it is not a ‘general principle of EU law’ or a ‘fundamental right’ in EU law terms133—however, once administrative decisions are taken on the basis of the principle, there is now a body of doctrine establishing valid decision-making based on the principle.134 Notably, there is no single model of employing environmental principles in EU legal reasoning, and their use can be controversial, whether because of the substantive meanings given to environmental principles in interpreting EU measures;135 because of how existing doctrine is applied;136 because of the nature of the cases in which appeals to the principles are made;137 or due to the basic fact that legal reasoning is being adapted to promote certain environmental protection outcomes through the use of principles. Furthermore, there are significant constraints limiting the CJEU’s legal use of principles, arising from the Court’s jurisdiction,138 from the relevant regulatory context (the same

130 e.g. Case C-127/02 Landelijke Vereniging tot Behoud van de Waddenzee and Nederlandse Vereniging tot Bescherming van Vogels [2004] ECR I-7405. See further Scotford, Environmental Principles and the Evolution of Environmental Law, at 147–61. 131 e.g. Case C-504/04 Agrarproduktion Staebelow v Landrat des Landkreises Bad Doberan [2006] ECR I-679. See further Scotford, Environmental Principles and the Evolution of Environmental Law, at 161–92. 132 e.g. Case T-13/99 Pfizer Animal Health SA v Council [2002] ECR II-3305. See further Scotford, Environmental Principles and the Evolution of Environmental Law, at 171–6. 133 See T. Tridimas, ‘Fundamental Rights, General Principles of EU Law, and the Charter’ (2014) 16 Cambridge Yearbook of European Legal Studies 361. 134 See Case T-257/07 France v Commission [2011] ECR II-05827 and Scotford, Environmental Principles and the Evolution of Environmental Law, at 178–84. 135 Due to the ambiguous meanings of general environmental principles, their use to interpret measures or inform legal tests still requires choices to be made as to their meaning in particular cases and these choices might not be self-evident, e.g. the use of the preventive and precautionary principles to inform the definition of waste reflects one vision of environmental protection that is contestable: see E. Scotford, ‘Trash or Treasure: Policy Tensions in EC Waste Regulation’ (2007) 19(3) Journal of Environmental Law 367. 136 Case C-2/90 Commission v Belgium (Walloon Waste) [1992] ECR I-4431. See F. Jacobs, ‘The Role of the European Court of Justice in the Protection of the Environment’ (2006) 18 Journal of Environmental Law 185. 137 The precautionary principle in particular is implicated in inherently controversial cases of risk regulation. 138 The CJEU’s jurisdiction is limited to cases concerning interpretation of EU law and the legality of acts of EU institutions and of Member States acting within the scope of EU law: Arts. 258, 263, 267 TFEU.

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672 eloise scotford principle can be employed differently in different EU regulatory contexts),139 and from the CJEU’s constitutional role. In the latter sense, the CJEU generally only relies on environmental principles to develop reasoning where the public decision-making under review was first based—explicitly or implicitly—on one of the principles as a constitutionally prescribed basis of EU environmental policy.140

29.3.3 India The EU approach to judicial reasoning and environmental principles can be contrasted with the experience in India,141 where the Supreme Court has actively developed a form of quasi-rights review based on environmental principles in its constitutional jurisprudence. In contrast to the EU position, there are no explicit references to environmental principles in the Indian constitution, but the Court has interpreted Article 21 of the Constitution, guaranteeing protection of life and personal liberty, as a basis for incorporating a number of environmental principles into Indian law. In particular, the Court accepts that the principle of sustainable development, the precautionary principle, the polluter-pays principle, and the principle of intergenerational equity are part of Indian law and its constitutional framework, relying on international soft law developments to support this reasoning.142 As a result, there have been high profile decisions in which the Court has required private compensation and public action in relation to environmentally degrading activities,143 including requiring the establishment of new administrative regimes, where it has found that environmental principles have not been complied with.144 The remedial powers of the Court have been generously exercised in these cases to give meaning to applicable environmental principles and to implement them in concrete cases. In this way, environmental principles can be seen as catalysts for radical legal developments in the Indian context. 139 e.g. Waddenzee involves a ‘strong’ application of the precautionary principle in the nature conservation context, preventing action where proof of absence of harm is not available, whereas the principle has been construed differently in other regulatory contexts: cf France v Commission. 140 See generally Scotford, Environmental Principles and the Evolution of Environmental Law, at chapter 4. This means that standalone arguments challenging administrative decision-making on the basis of environmental principles are generally not accepted (cf. Case T-229/04 Sweden v Commission [2007] ECR II-2437). A similar constraint applies to the ‘principle’ of integrating a high level of environmental protection into EU policies in Art. 37 of the Charter: Art. 52(5) Charter of Fundamental Rights of the European Union [2012] OJ C326/391. See further E. Scotford, ‘Environmental Rights and Principles in the EU Context: Investigating Article 37 of the Charter of Fundamental Rights’ in S. Bogojević and R. Rayfuse (eds.), Environmental Rights—in Europe and Beyond (Oxford: Hart Publishing, forthcoming 2018). 141 On the case of India, see the contribution of B. Desai and B. K. Sidhu in this volume. 142 Vellore Citizens’ Welfare Forum v Union of India AIR 1996 SC 2715 (principle of sustainable development, precautionary principle, polluter-pays principle); State of Himachal Pradesh v Ganesh Wood Products AIR 1996 SC 149 (principle of intergenerational equity); Indian Council for Enviro-Legal Action v Union of India (1996) 3 SCC 212 (polluter-pays principle). 143 e.g. S Jagannath v Union of India and ors 1997 (2) SCC 87 (requiring extensive public regulatory action and private compensation in relation to environmental damage caused by intensive shrimp farming). 144 Vellore Citizens’ Welfare Forum is a good example, where the Court’s remedy required the establishment of a public authority to deal with extensive pollution problems from tanneries, prescribing the tasks of this authority in some detail, whilst also imposing direct fines on tanneries for past pollution.

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environmental principles across jurisdictions 673 Notably, these developments have been part of a legal culture in which the Supreme Court has actively sought to compensate for weak executive structures and enforcement practices, introducing a raft of substantive and procedural legal innovations to uphold widely construed rights of citizens, particularly in the environmental sphere.145 In this context, use of environmental principles in judicial reasoning has now entered the legal mainstream in India, with the National Green Tribunal (NGT), established in 2010, taking over most environmental cases and being required by legislation to apply the principle of sustainable development, precautionary principle, and polluter-pays principle, albeit within the defined jurisdictional remit of the Tribunal.146 The NGT has used these principles, and other principles recognized in Indian environmental law such as the principle of intergenerational equity, as core concepts in a rapidly expanding body of jurisprudence,147 again often requiring executive action in relation to serious environmental problems,148 or preventing proposed development from being carried out altogether.149 However, the NGT’s prominent role in developing jurisprudence based on environmental principles is (at the time of writing) in question, since new legislative measures passed in 2017 give the government greater control over the Tribunal,150 arguably to limit the NGT’s intrusion into executive policymaking. These developments—whilst representing a considerable level of environmental ambition by the Supreme Court and NGT—have not gone without criticism by commentators (and the government) who argue that the Court’s reasoning is constitutionally inappropriate, whether because it uses principles as a legitimizing cover for reasoning that is not well developed,151 or because it usurps the proper role of the Indian executive.152 Further, the weak enforcement practices that have ‘resulted’ in this ambitious jurisprudence153 can in 145 G. Sahu, ‘Implications of Indian Supreme Court’s Innovations for Environmental Jurisprudence’ (2008) 4(1) Law, Environment and Development Journal 375. 146 The National Green Tribunal Act 2010 (India), s. 20. The NGT has jurisdiction, inter alia, to resolve all civil disputes involving a ‘substantial question relating to the environment’ and relating to key Indian environmental statutes (ibid, s. 14). 147 Jan Chetna v Ministry of Environment and Forests Judgment (NGT, 9 February 2012) [19]. See G. Nain Gill, ‘The National Green Tribunal of India: A Sustainable Future through the Principles of International Environmental Law’ (2014) 16(3) Environmental Law Review 183. 148 Vardhaman Kaushik v Union of India & Ors and anor (NGT Applications 21 and 95 of 2014, Order of 7 April 2015) (relying on the principle of intergenerational equity to require far reaching action to tackle air pollution in Dehli, including banning all diesel vehicles over ten years old and appointing local commissioners to check sources of air pollution). 149 e.g. M/S Riverside Resorts Ltd v Pimpri Chinchwad Municipal Corporation (NGT, 29 January 2014) (preventing the construction of a crematorium on a river bank that infringed the principle of sustainable development). 150 Finance Act 2017 (India), ss. 182, 184. See further R. Dutta, ‘How the Finance Act 2017 Cripples National Green Tribunal’, available at: http://www.livelaw.in/finance-act-2017-cripples-national-greentribunalngt/. At the time of writing, several panels of the court were in abeyance due to lack of new appointments: https://www.thenewsminute.com/article/national-green-tribunal-s-lone-membersouthern-bench-retires-500-cases-hit-74113. 151 D. Mehta, ‘The Environmental Rule of Law in India’ (DPhil thesis, 2017), 52–5; S. Ghosh (ed.), Analytical Lexicon of Principles and Rules of Indian Environmental Law Project Report submitted to the Indian Council of Social Science Research (2015). 152 Sahu, ‘Implications of Indian Supreme Court’s Innovations for Environmental Jurisprudence’, at 387–91. 153 Gill, ‘The National Green Tribunal of India’, at 202.

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674 eloise scotford turn undermine the application of the courts’ judgments.154 Fundamentally, these legal roles for environmental principles reflect the legal culture of India, which is shaped by the country’s politics, its political system, its administrative processes, the confidence of its Supreme Court and NGT to develop laws that dictate administrative procedure and policy outcomes, and the urgency of environmental problems that appear as severe social problems in the arena of the courtroom.

29.3.4 Brazil In Brazil,155 there is also energetic application of environmental principles—the precautionary principle in particular—against a more explicitly supportive legislative and constitutional backdrop. The precautionary principle is included in a number of domestic statutes and it is also implicitly referred to in Article 225 of the Constitution, which gives each citizen the right to an ecologically balanced environment and requires public authorities to control techniques or substances that pose a risk to life, quality of life, and the environment. This constitutional reference to risk-based regulation suggests an implicit endorsement of the precautionary principle.156 Moreover, domestic statutes require administrators to take the principle into account in a range of decision-making, whether in regulating the use of genetically modified organisms157 or in applying measures for administrative and criminal offences.158 Against this backdrop, federal courts have relied on the precautionary principle in deciding many cases, ranging from disputes concerning the approval of industrial plants and GMOs to civil liability claims relating to environmental damage. Rather than these developments being spearheaded by a progressive ultimate court, as in India, courts throughout the federal hierarchy have been active in applying the precautionary principle in a way that catalyses new legal developments. Thus, for example, the Superior Tribunal de Justiça (STJ)159 has adapted the established civil liability test for causation in cases of environmental damage caused by activities posing serious risks, by reversing the burden of proof to require the proponent of the allegedly harmful activity to show that its actions did not cause the relevant damage.160 In another set of cases, concerning authorization of potentially polluting or harmful activities, various federal courts have found that environmental impact studies must be carried out before activities or developments can go ahead, basing this 154 e.g. Sahu, ‘Implications of Indian Supreme Court’s Innovations for Environmental Jurisprudence’, at 385 on the ineffective judgment in Jagannath v Union of India. 155 On the case of Brazil, see the contribution by A. Benjamin and N. Bryner in this volume. 156 C. de Oliveira and I. da Silva Barbosa, ‘Le principe de précaution en droit de la responsabilité civile brésilien: Les limites de sa mise en oeuvre par les tribunaux brésiliens’ in M. Hautereau-Boutonnet and J.-C. Saint-Pau (eds.), L’influence du principe de précaution en droit de la responsibilité civile et pénale comparé (Mission de Recherche Droit & Justice, 2016), 746. 157 Article 1 Brazilian Federal Law 11.105 of 24 March 2005, which establishes safety and control standards for activities related to genetically modified organisms.  158 Article 54(3) Law 9.605 of 12 February 1998 on administrative offences and penal sanctions for the environment. 159 The STJ is the highest Brazilian appellate court for non-constitutional questions of federal law. 160 e.g. STJ, Resp n 1330027/SP, 3a turma, decision of 11 June 2012 (civil liability case relating to impacts on aquatic fauna caused by dam construction).

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environmental principles across jurisdictions 675 requirement on the precautionary principle. In some of these cases, courts have approved the suspension of existing authorizations when environmental risks became apparent,161 or required environmental impact analysis even where there was no explicit legal requirement for such analysis.162 This infiltration of reasoning involving the precautionary principle across the court system is perhaps not surprising given that the Brazilian court system operates in a civil law context with a limited doctrine of binding precedent by senior courts.163 At the same time, the application of the precautionary principle to spur legal developments is not a predictable development in Brazilian law. The use of the principle in judicial reasoning has been critiqued as being affected by ‘une perception imprécise des bases conceptuelles du principe par les juges’,164 whether due to a failure to spell out the precise criteria that engage the application of the precautionary principle,165 a failure to differentiate between the precautionary principle and the principle of prevention,166 or an unorthodox application of Brazilian procedural law (in cases concerning the reversal of the burden of proof).167 Again, legal connections to the precautionary principle in other legal spheres internationally appears to have emboldened ambitious applications of the principle,168 without necessarily careful analysis of how this reasoning fits within the existing domestic legal order.169

29.3.5 New South Wales (Australia) A final example of legal innovation based on environmental principles can be seen within the law of New South Wales, Australia (NSW). Along with other states and the federal level of government in Australia, NSW has incorporated a set of principles of ‘ecologically sustainable development’ (ESD) into its environmental protection and planning legislation, as discussed above.170 161 e.g. TRF 1a região, Apelação cível n 2001.34.00.010329-1/DF, decision of 12 February 2004 (suspending the authorization of bioinsecticide plants pending further studies concerning their uncertain impacts on the environment and the health of non-pest insects in particular); TRF 2, Agravo de instrumento 0004075–70.2012.4.02.0000, 5a turma, decision of 31 juil 2012 (suspending oil exploration activity pending further environmental studies); cf. STJ, 1863/PR, decision of 18 February 2009 (finding that it was not proportionate to suspend the construction of a dam on the basis of the precautionary principle). 162 STJ, Resp 1172553/PR, 1a Turma, decision of 27 May 2014 (in relation to the construction of a dam). 163 In 2006, the Federal Constitution was amended to allow the Supreme Court to issue binding precedents in certain cases. 164 de Oliveira and da Silva Barbosa argue that the precautionary principle suffers from inappropriate implementation in Brazil ‘due to an imprecise perception of the conceptual basis of the principle by judges’: de Oliveira and da Silva Barbosa, ‘Le principe de précaution en droit de la responsabilité civile brésilien’, at 761. 165 Ibid., at 769–73. 166 Ibid., at 765–8. 167 e.g. STJ, Resp no 972.902–RS(2007/0175882-0), decision of 25 August 2009. 168 e.g. STF, Recurso Extraordinário n 737.977/SP, decision of 4 September 2014 (appealing to the ‘international law principle of precaution’ in requiring pre-emptive mechanisms to counter actions that threaten sustainable use of ecosystems). 169 ‘Le principe est parfois vu comme une règle qui doit être a tout prix appliquée’ . . . ‘en faveur de l’environnement, indépendamment des analyses préalables sur la manière dont le principe doit être interprété’: de Oliveira and da Silva Barbosa, ‘Le principe de précaution en droit de la responsabilité civile brésilien’, at 748, 763. 170 See nn. 44–5 and accompanying text.

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676 eloise scotford The New South Wales Land and Environment Court (NSWLEC) has been particularly active in developing public law doctrine based on these ESD principles, developing a complex and intricate body of reasoning prescribing good decision-making in relation to environmental and planning matters and environmental sentencing.171 Whilst the Court is constrained by more senior Australian courts in its application of legal doctrine, it has worked within and beyond existing doctrinal frameworks to find progressively that ESD principles are legally relevant in all aspects of its jurisdiction.172 This is possible due to the multifaceted nature of the NSWLEC’s jurisdiction—engaging in both judicial review and merits appeals relating to public decision-making on a range of environmental and planning matters, as well as hearing sentencing appeals—and due to the specialized mandate of the Court to develop consistent and coherent principles for NSW environmental law, along with the ESD agenda that the Court has embraced in performing this role.173 Whilst the Court has been innovative in standalone judgments—as in the Telstra decision outlined above174—it is the total body of its ESD doctrine that is innovative, infusing a body of law with ESD principles through incremental but extensive reasoning, building on the doctrinal foundations of this particular legal culture, and redefining it in the process. * * * The four jurisdictional examples considered above are deliberately chosen to cover different types of legal systems—from supranational to sub-national legal systems, including those with civil law and common law traditions, and with varying constitutional backdrops—and to showcase legal systems in which environmental principles have been catalysing innovative legal developments. Each of these legal settings shows how environmental principles can transform from empty legal vessels into legally relevant and important ideas. They also show that, whilst environmental principles have rhetorical force and present a strong vision of sustainability to inform judicial reasoning, there is no one legal model for environmental principles. Their legal roles are contingent on the different legal cultures in which environmental principles take on legal roles, including the jurisdictional mandates of the relevant courts, the varying style of legal reasoning, and the distinctive legislative and doctrinal frameworks that apply. These examples also show that judicial reasoning involving environmental principles also comes with risks of poor legal reasoning, in cases where their precise legal relevance and mode of application in a particular legal culture is not fully examined and explained.

29.4 Concluding Remarks Environmental principles are a prominent, emerging, and inspiring legal force in environmental law globally. Despite their inconsistent groupings and ambiguous meanings, they are increasingly taking on legal identities in a range of legal cultures, mediating transnational legal connections and catalysing new legal developments. The contingent nature of 171 See Scotford, Environmental Principles and the Evolution of Environmental Law, at chapter 5. 172 Ibid., at 217–23, 224–56. 173 Ibid., at 208–17. 174 See nn. 81–6 and accompanying text.

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environmental principles across jurisdictions 677 environmental principles as legal ideas—even as they are bolstered by nominal connections to environmental principles in international soft law instruments and other legal fora—is central to understanding their legal identities and significance as ‘global’ norms. Environmental principles are not predefined or predetermined legal phenomena. They 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. This recognition highlights the limits of environmental principles as legal ideas. They do not (yet) represent a radical new form of law globally; they are not equivalent to other ‘legal principles’ that have strong traditions in certain legal systems; and they do not provide easy instrumental routes to environmental protection outcomes. Rather, environmental principles are ideas that provoke and inspire legal developments, whether in negotiated soft law form at the international level, or in the detail of legal reasoning within discrete jurisdictions. They represent, and often mask, a range of political and legal agendas, and their global proliferation has provided a landscape of opportunity for legal development. This landscape is not uniform but it is fertile ground and interesting legal developments involving environmental principles will no doubt continue to appear across legal systems. As is often the case in environmental law, there can be a tension between legal inspiration for new ideas and the stability of legal orders.175 Environmental principles pose a particular challenge in this respect, in light of their heavy promotion by policymakers and by key actors in environmental law, and their capacity for multiple meanings and fluid application. Environmental principles cannot be self-determining and self-legitimizing in legal terms, but they are nonetheless ideas with significant legal importance and potential globally.

29.5 Select Bibliography de Sadeleer, N., Environmental Principles: From Political Slogans to Legal Rules (Oxford: Oxford University Press, 2002). Beyerlin, U., ‘Different Types of Norms in International Environmental Law: Policies, Principles and Rules’ in D. Bodansky, J. Brunnée, and E. Hey (eds.), The Oxford Handbook of International Environmental Law (Oxford: Oxford University Press, 2007). Bosselmann, K., The Principle of Sustainablity: Transforming Law and Governance (Farnham: Ashgate, 2008). Krämer, L., and Orlando, E. (eds.), Principles of Environmental Law (Cheltenham: Edward Elgar, 2018). Preston, B. J., ‘The Judicial Development of Ecologically Sustainable Development’ in D. Fisher (ed.), Research Handbook on Fundamental Concepts in Environmental Law (Cheltenham: Edward Elgar, 2016). Ramlogan, R., Sustainable Development: Towards a Judicial Interpretation (Leiden: Martinus Nijhoff Publishers, 2011). Scotford, E., Environmental Principles and the Evolution of Environmental Law (Oxford: Hart Publishing, 2017). Viñuales, J. E. (ed.), The Rio Declaration on Environment and Development: A Commentary (Oxford: Oxford University Press, 2015).

175 Scotford, Environmental Principles and the Evolution of Environmental Law, at 266 and generally; E. Fisher, Environmental Law: A Very Short Introduction (Oxford: Oxford University Press, 2017), 24–6.

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CHAPTER 30

Distr ibu tion of Pow ers Moritz Reese

30.1 Overview 30.2 Distribution of Powers in Multilevel Environmental Governance-Institutional Fundamentals 30.2.1 The Distinction Between Federal and Unitary Systems 30.2.2 The Role of Administrative Regulation 30.2.3 The Role of Executive Competences 30.2.4 Fiscal, Taxing, and Spending Competences 30.2.5 The Role of Local Community Governments and Self-governing Bodies

30.3 General Principles and Concepts of Distribution of Powers

679 680 680 684 684 687 688

689

30.3.1 Reasons for Decentralization to Local Government 690 30.3.2 Reasons for Central Regulation 692 30.3.2.1 Transboundary Environmental Effects and Goods 692 30.3.2.2 Market-related Requirements 694 30.3.2.2.1 Equal Market Access 694 30.3.2.2.2 Level Playing Field 695 30.3.2.2.3 Reduction of Adaptation and Transfer Costs 696 30.3.2.3 Equal Living Conditions and Ubiquitous Safety Levels 696 30.3.3 Intensity of Regulation and Cooperative Structures of Functional Steering 697 30.3.3.1 Cooperative and Goal-oriented Steering as a Means of Functional Power Distribution 697 30.3.3.2 The Effectiveness Dilemma of the Cooperative Approach and the Need for Effective Flanking 698 30.3.3.3 Minimum Regulation and the Right to ‘Gold-plating’699

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distribution of powers 679 30.3.3.4 The Relation Between Legislative Steering and Local Permitting: Integrated Pollution Control 30.3.3.5 The Role of Coordination

699 700

30.4 Concluding Remarks

701

30.5 Select Bibliography

702

30.1 Overview Distribution of powers in environmental policy is a complex challenge. Environmental problems often extend across territorial boundaries and political sectors thus involving a wider range of potential actors and interests in both the vertical and the horizontal dimension. In the horizontal dimension the challenge is about adequate interlinking of e nvironmental competences and about anchoring of environmental policies in the relevant sector policies like industry, agriculture, energy, and land use. While policy integration is clearly needed, it is also apparent that effective environmental policy is highly dependent on strong organizational representation by a well-equipped sector administration. How states are tackling this organizational challenge is certainly an interesting question for comparative research. This contribution, however, focuses on vertical division of powers. It looks at how states distribute environmental competences between different levels of government from the local up to the national and even to the supra-national level in the case of the European Union (EU). The ultimate aim of such a review is, of course, to identify prominent model approaches and important differences in power distribution with a view to also discussing pros and cons and deriving lessons for future governance reforms. It is rather obvious, however, that this is a very demanding undertaking as we are looking at a very heterogeneous policy field where, in principle, every sector (waste, air, water, chemicals, etc.) needs to be assessed separately. Above all, we are facing a great diversity of state orders that is, to a large degree, the result of historical contingencies. Turning to the literature, one finds a bulk of research on multilevel governance issues, mostly from an international relations perspective1 and also a number of studies on the distribution of environmental powers in federal systems2 as well as the EU.3 However, there is little comparative research dealing precisely with the distribution of powers in (the different fields of) environmental law, and it appears that the distribution of environmental competences is as yet quite uncharted territory in terms of comparative analysis.4 1 e.g. H. Enderlein ,S. Wälti and M. Zürn, Handbook on Multi-Level Governance (London: Edward Elgar, 2010); I. Weibust, N. Paterson, and J. Meadowcroft (eds.), Multilvel Environmental Governance— Managing Water and Climate Change in Europe and North America (London: Edward Elgar, 2014). 2 W. G. Brenner, Föderalismus im Umweltrecht der Vereinigten Staaten und der Europäischen Gemeinschaft (Berlin: Duncker & Humblodt, 2003); G. A. Bermann, ‘Taking Subsidiarity Seriously; Federalism in the European Community and the United States’ 94 (1994) Columbia Law Review, 331 ff., 403 f. 3 The Committee of the Regions, White Paper on Multilevel Governance, 2009, available online at: http://cor.europa.eu/en/activities/governance/Documents/CoR’s%20White%20Paper%20on%20 Multilevel%20Governance/EN.pdf. 4 This is one of the conclusions drawn by M. Alberton and F. Palermo, ‘Concluding Remarks’ in M. Alberton and F. Palermo (eds.), Environmental Protection in Multilayered Systems (Leiden/Boston: Martinus Nijhoff, 2012), 503–28, at 524. This volume assembles a number of national assessments on

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680 moritz reese As a consequence, this contribution adopts a rather explorative approach and is primarily aimed at: framing the subject, discussing basic concepts, and developing rather generic comparative criteria and questions. We begin with some groundwork and carefully explore the subject and the measures of comparison. It is, of course, crucial to take into account the structural diversity of the organizational ‘hardware’ and institutional set-ups in which powers are shared. Above all, this refers to the distinction between federal and unitary (i.e. merely devolved) systems and to the roles of legislative and administrative competences, but also extends to the diverging forms of local self-administration by counties and municipalities. These essential points of reference and their particular relevance in the field of environmental governance are discussed first in section 30.2. Section 30.3 then explores the general aims and criteria which may motivate and justify the allocation of powers. In this regard, particular attention is paid to the paradigm of functional distribution of powers that aims to deploy the level with the highest problem-solving capacity. It explains—in a nutshell—how this rationale is interpreted in theory and what its basic implications are with regard to the distribution and use of environmental competences. Whether the functional approach is followed and how it is interpreted is then taken as a leading question and benchmark for comparison. This functional assessment is eventually extended to the prominent model of ‘cooperative federalism’ or ‘cooperative multilevel governance’ that has been praised as ‘the winning model in multilevel policies’.5 The meaning and possible interpretations of this concept are discussed and it is shown that the ‘cooperative’ model can only be effective as cooperation within clearly defined roles and final decision rights. Before going into medias res it should be emphasized that this contribution is, of course, not based on a comparative review of all existing countries and federations. Instead, it refers to a number of selected examples which were found to be representative in view of certain models and approaches of power distribution, and for which meaningful literature— preferably in the English language—is available. As mentioned above, comparative legal research into the issues of power distribution is still rare, and much more effort will be needed to develop a broader and more detailed picture. The following is mainly about defining major concepts and comparative questions for future research.

30.2 Distribution of Powers in Multilevel Environmental GovernanceInstitutional Fundamentals 30.2.1 The Distinction Between Federal and Unitary Systems The distinction between federal and unitary systems refers to fundamental organizational differences as to the existence, constitution, and autonomy of decentralized constituent distribution of powers, particularly in the field of water management and stands out as one of the few more comprehensive comparative assessment works available. Another comparative volume is K. Robbins (ed.), The Law and Policy of Environmental Federalism (London: Edward Elgar, 2015). 5 Alberton and Palermo, Environmental Protection in Multilayered Systems, at 513.

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distribution of powers 681 units. Thus, it is important to ask to what extent it is possible to compare unitary and federal states in terms of distribution of powers. At first sight, it appears that the answer to this question should clearly be ‘no’, and that federal and unitary systems need to be strictly distinguished and compared separately. The federal concept implies, at least, that regional constituent units are constitutionally established and provided with a considerable degree of autonomy in both law-making and administration, and that the regional units are regularly equipped with fully fledged governments including the institutional bases for (democratic) public rulemaking. It seems that this would principally call for—and legitimize—stronger autonomy as compared to mere executive districts and local branches of a unitary state administration. However, a closer look at prominent examples of unitary states, like France or Poland,6 proves that this preliminary perception is far too schematic and superficial. It reveals that these modern states have developed strong regional sub-units and equipped them with democratic institutions and extensive regulatory powers. We see that such ‘devolved systems’ bring forth wide-ranging decentralization that widely correlates with vertical power relations in traditional federal systems.7 In France, for instance, the government system—a famous example of a unitary state— has long undergone a strong decentralization process with major reform steps taken in the early 1980s.8 Today, regions, departments, and municipalities (‘territorial communities’) are provided with their own legal personality, competences, and wide-ranging administrative decision making powers.9 All three types of territorial communities are governed by elected councils and representatives. Central government’s oversight is limited to the legality, only, and in 2003 France has even introduced a subsidiarity principle in Article 72 of its Constitution stating that territorial communities ‘may take decisions in all matters arising under powers that can best be exercised at their level’. Hence, even in France we are witnessing a strong trend towards ‘quasi-federalization’ and regionalization of government competences especially as to regional issues of policy implementation. Of course, this French model of decentralization remains a devolved system that is based on delegating acts of the national legislator rather than constitutional guarantees.10 Moreover, in a formal perspective the delegated powers are merely administrative competences whereas parliamentary legislation rests entirely with the central government. Nevertheless, it seems that administrative regulation is playing a prominent role in the French system and that this is particularly true in the environmental field where basically all local issues and questions of implementation are left to administrative regulation and can therefore be delegated to the territorial communities.11 In the United Kingdom it is also the National Parliament that decides about devolution of legislative powers while the UK government may also delegate administrative powers to

6 B. Iwanska, P. Czepiel, and M. Stoczkiewcz, ‘Environmental Governance in Poland’ in Alberton and Palermo, Environmental Protection in Multilayered Systems, at 209–34. 7 M. Alberton and F. Palermo, ‘Concluding Remarks’ in Alberton and Palermo (eds.), Environmental Protection in Multilayered Systems, at 525. 8 Loi 213/1982 relative aux droits et libertés des communes, des departments et des régions. 9 A. Boiret, ‘Environmental Governance in France’ in Alberton and Palermo (eds.), Environmental Protection in Multilayered Systems, at 193 f. 10 Boiret, ‘Environmental Governance in France’, at 192. 11 Ibid.

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682 moritz reese the United Kingdom’s constituent nations.12 The UK Parliament retains legal control over the devolution arrangements and has the power to amend or even repeal them. On first sight, this appears to be a highly centralized system where national government retains farreaching control. However, a closer look reveals that the opposite is the case: The National Parliament has, indeed, transferred wide powers to the constituent nations (albeit to different extents), and this holds particularly true with regard to environmental matters. Even Wales—as the least autonomous constituent—has been granted a comprehensive mandate to regulate on environmental matters. In parallel, far-reaching delegation arrangements have been made to transfer most of the administrative competences to regional states, as well. And, last but not least, it is accepted in UK state practice that the UK Parliament should not use its power to legislate in devolved areas without first obtaining the consent of the constituent parliaments.13 In sum, this makes for a highly decentralized structure of environmental governance that gives considerably more say to the regional units than the average ‘federal’ Constitution. In view of these far-reaching models of devolved decentral ization, it has rightly been stated that ‘the demarcation of deeply rooted categories such as federal, regional and unitary States fades away and has to be called into question when the functioning of complex matters such as the protection of the environment is examined more closely’.14 This observation becomes even more evident when looking at the side of the federal systems where we find wide differences in power allocation with a strong centralist tendency in many areas and especially in the field of environmental regulation. In most federal systems the actual extent of decentralization is largely determined by the central legislators, too. This is owing to the predominance of the concept of ‘concurrent’ competences, especially in the field of environmental law. Concurrent competences, as is known, regularly entitle the central level to legislate and preempt regional legislation wherever this is deemed necessary for the sake of the national commonalty. This widespread approach of concurrent powers and preemption has given way to centripetal developments in most cases. The US system is a prominent example of such a centralized federation, especially in the field of environmental policy. The US federal government has adopted a dominant role in environmental regulation despite the fact that the US Constitution does not even provide an explicit federal competence in this field. Extensive federal regulation in nearly all fields of environmental policy was based on the famous ‘commerce clause’, that is, the Congress’s power ‘to regulate Commerce with foreign Nations and among the several States’ (Article 1(8) Clause 3 US Constitution).15 Moreover, Congress has used its federal spending power to steer state legislation by means of so-called ‘conditional grants’—again, particularly in the environmental field.16 The dominance of the federal level—especially in environmental 12 C. T. Reid and A. Ross, ‘Environmental Governance in the United Kingdom’ in Alberton and Palermo (eds.), Environmental Protection in Multilayered Systems, at 161–86, 163 ff. 13 Ibid., at 169. 14 Alberton and Palermo (eds.), Environmental Protection in Multilayered Systems, at 504. 15 Brenner, Föderalismus im Umweltrecht der Vereinigten Staaten und der Europäischen Gemeinschaft, at 66 ff; J. P. Dwyer, ‘The Commerce Clause and the Limits of Congressional Authority to Regulate the Environment’ (1995) 25 Environmental Law Reporter 10,421, at 10,429. 16 Brenner, Föderalismus im Umweltrecht der Vereinigten Staaten und der Europäischen Gemeinschaft, at 109 ff; L. Paddock and J. Bowmar, ‘Environmental Governance in the US’ in Alberton and Palermo (eds.), Environmental Protection in Multilayered Systems, at 33–54, 37.

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distribution of powers 683 regulation—has long been criticized as being excessive. J. P. Dwyer, for example, found that ‘so much political power has been reallocated to the federal government that, at times, the states could be mistaken for vassals of the federal government’.17 At any rate, and without going further into the details, it is evident that, despite its federal basis, the US system of vertical power distribution has developed to become much more centralized than the devolved system of, for example, the United Kingdom. Germany marks another example of a rather centralized federal system, particularly also as regards environmental legislation. In this field—like in most other policy fields—the federal state is granted nearly all-encompassing concurrent competences, and it has extensively used these powers to develop a dense fabric of national regulation in all areas of environmental protection. The core competence of the German Länder, in turn, lies with the implementation of the federal laws which is principally attributed to them in Articles 30 and 83 German Basic Law. Hence their regulatory autonomy is widely limited to regulating implementation details and exerting administrative discretion wherever this is implied in the legislative framework. Therefore, the German system has been rightly referred to as an example of ‘administrative or executive federalism’, and, again, this model is also an e xample of how the distribution of powers may become more centralist in a federal state than in a devolved system. It follows from the above that the categorical distinction between federal states and unitary systems does not tell us much about the actual allocation of competences. Albeit from different starting points, the actual role-sharing is largely determined by the central legislator in what is frequently called a ‘cooperative’ approach to regulation (see also section 30.2.3): In unitary systems all legislative competences are principally concentrated at the central level. However, the central competence regularly includes the right to establish regional constituent governments and to devolve legislative and administrative powers to them. Devolved systems—as the British example demonstrates—can also include extensive en bloc delegations of broad fields of regulation and thus confine central legislation to just selective interventions. In federal systems, in turn, the predominant concept of concurrent competence makes the division of powers equally dependent on the discretion of the central legislator. It is true that the concept of concurrent competences implies a preliminary competence of the constituent units, and some federations have also expressed a general primacy of decentral legislation (see section 30.3.1). Yet, as the above examples demonstrate, this does not imply that devolved systems of power distribution are necessarily more centralized than federal arrangements. Ultimately, both systems may—and often do—arrive at similar models of fine-tuned macro-micro power distribution.18 In terms of comparative analysis this means that comparison across the formal distinction of federal und devolved systems is possible and does make sense as the actual role-sharing is regularly developed below this constitutional dividing line. However, this also means that it is hardly possible to trace and compare the precise lines of power distribution without a specific analysis of the relevant national legislation, and what makes comparison even more demanding in this regard is the great importance of administrative regulation as a factor of regulatory intensity. 17 J. P. Dwyer, ‘Symposium Environmental Federalism: The Practice of Federalism under the Clean Air Act’ (1995) 54 Maryland Law Review 1183, at 1185. 18 This is one of the main conclusions of Alberton and Palermo, ‘Concluding Remarks’, at 525.

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684 moritz reese

30.2.2 The Role of Administrative Regulation Administrative law-making, as is known, regularly plays an important role in environmental policy. As a rule, environmental regulation is shared between the parliaments and the executive branch. Central administrations are regularly empowered to supplement and operationalize parliamentary laws by more detailed regulations, bye-laws, and technical standards. Usually, this administrative regulation is assigned to special divisions of the central administrations (Ministry or Agency). The US Environmental Protection Agency (EPA) is probably the most famous example in this regard. As is known, US environmental laws often entitle the EPA to operationalize their general programmes by concrete pollution control standards.19 Administrative regulation—albeit to different extents—is used in all countries reviewed for the purpose of this chapter.20 As shown above, this concept of administrative regulation not only affects the horizontal division of powers. Administrative regulation apparently increases regulatory intensity and thus narrows down the room for interpretation and discretion that would otherwise be available to the regional legislators and/or local agencies.21 Insofar as implementation is a competence of the constituent administrations, they are thus subject to more intensive central steering. For this reason, both parliamentary and administrative regulation need to be considered when analysing the vertical distribution of powers. Since administrative regulation goes into the details of implementation it is also closer to the ‘natural’ dividing line between global and local aspects and thus particularly interesting to look at from a perspective of functional division of competences. In some countries there seems to be vertical devolution going on within the administrative branch meaning that, for instance, the environmental ministry of the central government may delegate issues of technical regulation to the territorial administrations. This is, of course, an important direct path of devolution which needs to be con sidered when comparing systems.22 A typical model of the devolution structures and multilevel interplay between legislative and administrative competences is depicted in Figure 30.1.

30.2.3 The Role of Executive Competences Administrative regulation, as a form of delegated general law-making agencies, is to be distinguished from the (case-related) execution of parliamentary and administrative regulations. Executive competences play an important role in most fields of environmental governance. Execution of public laws—as the reader will know—often implies ample margins of interpretation and wide administrative discretion. This holds especially true in complex 19 US Environmental laws regularly commission the EPA to establish pollution control and environmental quality standards. For very clear and compact information see the website of US EPA at: http:// www.gov.epa. 20 Austria, Australia, Germany, Canada, France, Italy, Spain, Switzerland, the United Kingdom, and United States. 21 Paddock and Bowmar, ‘Environmental Governance in the US’, at 37. 22 Insofar as such administrative devolution bypasses regional parliaments, this brings about interesting implications on trias politica which, however, cannot be further analysed in this context.

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distribution of powers 685 Central Government National Parliament Basic rules, main regulations instruments etc.

empowers

National Administration/EPAs: Supplementary regulations/standards Direct execution in some countries/fields

empowers

empowers

empowers

Reg. Parliaments/Councils Basic rules, main regulations instruments etc.

Constituent Units

empowers

Reg. Administration/EPAs: Suplementary regional standards: • Further details and standards not regulated on central level • Circulars/decrease regulating implementation practice Case related execution • Admin. planning: wide discretion and administrative conception • Permitting etc.: Discretion, interpretation

Figure 30.1 Multilevel Interplay Between Legislative and Administrative Branches of Environmental Regulation

local decision-making, for example, about land use arrangements, where a balancing of multiple interests, impacts, and alternatives is required. Such balancing always implies a great deal of weighing and prioritization and hence includes a considerable degree of delegated local decision-making. Planning laws provide the most far-reaching executive competences in that regard. They merely provide general aims, curbs, and the procedural framework for executive planning decisions. Considerable administrative leeway is also inherent to the concept of integrated pollution control, that is, when the legal framework demands an optimization of the total environmental performance of the human activities within planning or permit decisions. Again, this optimization is by no means a mere implementation exercise since the various effects of, for example, air pollutants, wastes, waste water, resource consumption, structural impacts, etc. are regularly incommensurable and trade-offs can only be appraised by weighing. Likewise, this implies a relevant amount of discretion and, to that extent, ‘real’ executive decision making competence (see also section 30.3.3.4). In fact, all vague legal terms do imply an interpretative competence. As is exhibited in norm theory, any vague legal term conveys discretion to the implementing entity insofar as it requires weighing and prioritization of the regulated (conflicting) interests in the light of the regulation’s purpose. Within the realm of their discretionary powers, the relevant administrations are regularly also empowered to set general standards on how to interpret the legal framework. As regards the distribution of executive competences, one can basically distinguish three approaches: First, in what could be called a ‘parallel’ approach execution is shared by the central and the constituent levels. Both levels maintain, in parallel, a system of agencies and basically execute their own legislation. In the ‘decentralized’ approach the regional and local constituents are responsible for executing all laws including the national ones, and it is their sole competence to exercise the associated discretionary and interpretative powers.

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686 moritz reese In between these two approaches we—thirdly—find different types of mixed systems with some parts of the central legislation executed by the national government and other parts implemented by regional governments, or with different degrees of national oversight over regional execution. From a constitutional perspective, the US system could originally be seen as an example of the parallel approach. However, in the field of environmental law, it has long developed into a mixed system with vast parts of the environmental permitting and planning delegated to the states. While there has been a strong centralization in terms of environmental legislation the opposite is the case with regard to enforcement. When the main body of environmental law was developed—in the 1970s and ’80s—and national legislation was expanded to nearly all relevant fields of environmental policy, it became obvious that a paralleling of the state enforcement networks by federal agencies would be highly inefficient, to say the least. US Congress has therefore adopted a delegation policy authorizing US EPA under some programmes to delegate its enforcement authority to the states. Under such programmes, states may choose to take over enforcement subject to the condition that they have adequate authority and resources to manage the program, or to apply equivalent state laws.23 The EPA then typically suspends most of its own enforcement activities and takes on an oversight role, providing guidance and generally overseeing the adequacy of the state’s enforcement activities.24 In principle, the EPA may also control the legality of individual enforcement action or inaction and file its own enforcement action should the EPA determine that the state action is inadequate. However, this procedure—known as ‘overfiling’—appears to be extremely rare in practice.25 The EPA may also withdraw a state’s authorization to implement the federal programme altogether if the state fails to effectively carry out its enforcement responsibility. This ultimate sanction is, again, very scarcely exercised not least because of the political conflicts this implies. In the US system of delegated enforcement the states are not coerced, but merely offered the option of taking over the implementation task. The states would probably refuse to do so rather often if they were also to bear the full cost of implementation. Therefore, delegation is regularly combined with federal grants to cover the costs and incentivize delegated enforcement. In sum, the practice of delegated enforcement has brought forth a strongly decentralized system with, however, a remaining oversight and intervention right of the federal level. It remains to be seen how these federal controls will be used by an authoritarian administration that pursues a particular programmatic in environmental policy. In the fully decentralized model of enforcement there is no remaining influence of the federal level and enforcement is the full competence and responsibility of the constituent units. This is the case, for example, in Germany and Switzerland. Both the German and the Swiss Federation, for instance, are often characterized as examples of ‘administrative federalism’, alluding to the circumstance that they combine a clear dominance of federal legislation, on the one hand, with comprehensive enforcement competences of the states/ 23 C. Rechtschaffen and D. I. Markell, Reinventing Environmental Enforcement and the State/Federal Relationship (Washington D.C.: Environmental Law Institute, 2003), 93; Paddock and Bowmar, ‘Environmental Governance in the US’, at 46. 24 Rechtschaffen and Markell, Reinventing Environmental Enforcement, at 98; Paddock and Bowmar, ‘Environmental Governance in the US’, at 46. 25 See J. A. Mintz et al., Environmental Enforcement: Cases and Material (Durham N.C., Carolina: Academic Press, 2007), 21.

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distribution of powers 687 cantons and municipalities, on the other hand. In Germany, for example, it is basically the competence of the constituent states and their administrations to implement the federal laws (Article 30 Basic Law). Local land use planning is even reserved to the municipalities by Article 28 German Basic Law. Only a few fields of particular national interest are subject to federal execution, like national waterways, the military, and the maritime Exclusive Economic Zone (EEZ). The model of decentralized execution competences is also the predominant model in states with ‘quasi-federal’ structures like the United Kingdom, Spain, and even France. In Spain, for example, the enforcement competence regularly rests with the autonomous communities who decide on case-related implementation of both state and community laws. Interestingly, some exemptions are made in specific areas which are reserved to central decision-making like: granting of leases for management of water resources, approval of a catalogue of protected species, carbon storage siting. Like in the German example, these exemptions are based on a particular nationwide interest in the subject matter. The bundling of executive competences on the regional and local levels of government is clearly the predominant approach in most states and fields of environmental governance, and the reasons for this are fairly obvious. The regional and local governments are closest to the individual cases and the practical conflicts to be resolved. Hence, they need to be involved in the execution, and splitting up the enforcement administration into a parallel system of national and regional authorities would obviously imply tremendous inefficiencies, complexities, and conflicts in overlapping planning or permitting procedures.26 Differences, however, exist as to the degree of control of the central government and the fields that are exempted from decentralized enforcement and administered by national authorities. Exemptions from the decentralized approach regularly involve the promulgation and authorization of plans and projects of particular national interest, like national transport or energy infrastructures. A detailed comparative analysis of centralized planning and authorization appears to be an interesting subject for further comparative research.

30.2.4 Fiscal, Taxing, and Spending Competences In the above context, it is also important to note the difference between the notion of ‘power’ in a stricter sense of a legal empowerment to make and enact encumbering decisions, and the concept of ‘competence’ in broader sense of ‘administrative tasks and responsibilities’. This distinction is particularly relevant with regard to non-regulatory public services like for municipal waste collection or waste water treatment, and mere fiscal activities like provision of public infrastructures (e.g. energy grids, public sewers, public transport, etc.). These tasks, too, need to be allocated in the multilevel governance systems. Other than regulatory powers, they primarily bear fiscal responsibilities but along with these there is also implied a considerable degree of discretion about how to perform the environmental tasks and services and develop public infrastructure. In principle, states tend to allocate these fiscal responsibilities according to the scale of the respective service or infrastructure. Local services in waste and water management 26 Paddock and Bowmar, ‘Environmental Governance in the US’, at 46; Brenner, Föderalismus im Umweltrecht der Vereinigten Staaten und der Europäischen Gemeinschaft, at 184 ff.

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688 moritz reese are regularly allotted to local governments (municipalities, counties, or equivalent local entities). However, some tasks going beyond the local scale may also be taken over by central authorities like, for example, the development of energy infrastructure or the restoration of wider habitats and river stretches.27 Unfortunately, comparative work on the distribution of fiscal competences is scarce with regard to these environmental services and infrastructures. Taxing and spending powers are, of course, also highly relevant competences, not least in the field of environmental governance. Legislative and especially also administrative competences can only be effectively exerted if adequate funds are available to pay the cost of implementation and enforcement. Substantive competences should therefore regularly be flanked by adequate taxing and spending powers. However, it seems that, in practice, there are often considerable discrepancies between substantive responsibility and the fiscal position of federal units. The United States presents a paradigmatic case in this regard with a predominance of the federal government in taxing and spending powers. Moreover—as was mentioned above—US Congress has frequently used its spending powers to incentivize state cooperation and implementation. It has also widely expanded its influence on the states, not least in the field of environmental governance, by means of ‘conditional grants’ that are allotted to the states subject to the condition that certain environmental programmes or standards are effectively implemented in the state.28 Likewise, the UK Parliament has also retained control over important fiscal powers and has used these p owers to establish economic instruments in greenhouse gas mitigation and waste control policy.29 In Germany, in contrast, the spending powers are strictly linked to the administrative competences,30 and the federal government has only very limited means of cross-funding state implementation.

30.2.5 The Role of Local Community Governments and Self-governing Bodies Self-administering local communities like municipalities or counties are, indeed, important institutions of decentralized autonomy that should be included in the picture.31 In most countries, such local communities—with elected governments (councils)—are established as fundamental domains of decentralized governance and equipped with considerable autonomy as to the regulation of local issues. Municipalities/counties are often empowered to steer local land use development by means of spatial and town planning, and they are responsible for the provision of environmental services and infrastructures. It is for this reason 27 Alberton and Palermo (eds.), Environmental Protection in Multilayered Systems, at 508; on the example of transregional waterways in Germany, see W. Köck, ‘Water Management and Protection in Germany’ in Alberton and Palermo (eds.), Environmental Protection in Multilayered Systems, at 315–37, 323. 28 Brenner, Föderalismus im Umweltrecht der Vereinigten Staaten und der Europäischen Gemeinschaft, at 109 ff. Paddock and Bowmar, ‘Environmental Governance in the US’, at 37. 29 Reid and Ross, ‘Environmental Governance in the United Kingdom’, referring to the Climate Change Levy under the Finance Act 2000, the CRC Energy Efficiency Scheme under the Climate Change Act 2008 land the Finance Act 1996, part III. 30 According to Art. 104a German Basic Law. 31 See C. Cruz and P. Keefer, Database of Political Institutions (Washington: Inter-American Development Bank, 2015), Codebook, 22.

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distribution of powers 689 that cities are a prior political addressees of sustainability programmes like, for instance, Agenda 21. These initiatives acknowledge the fact that municipalities often hold very relevant environmental competences and act as entrepreneurs and innovators for sustainable local development.32 Yet, there seem to be considerable differences between countries as to the scope and degree of municipal autonomy, and one can basically distinguish between countries with a strong tradition of municipal autonomy and countries where communities are rather weak.33 In the former countries local self-government is regularly anchored in constitutions. Moreover, we often see institutionalized forms of aggregation and cooperation of municipalities which can decisively expand the role of the municipalities and make for powerful regional actors, not least with regard to environmental services and land use planning. In Germany, for example, district-type aggregations of municipalities (Landkreise) form an(other) important level of regional government within the country’s federal structure, and may take over important tasks in the fields of waste management, water management, or energy services. Last but not least, the phenomena of task-related self-governing bodies should also be appraised as a means of decentralized governance which may play an important role also in particular fields of environmental protection. In some countries there is a strong tradition of self-governing public associations with mandatory membership and a democratic structure. In the Netherlands, for example, the management of surface waters is (to different extents) delegated to ‘water associations’ (Waterschappen),34 and similar institutions exist in parts of Germany (Wasser- und Bodenverbände).

30.3 General Principles and Concepts of Distribution of Powers This section reviews the most relevant normative concepts of vertical power distribution. It looks at how centralization or decentralization of powers is motivated or could be m otivated, especially in a functional perspective that is oriented towards a rational distribution of competences in the sense of maximum problem-solving capacity. The functional perspective is based on the assumption that the distribution of powers should be oriented towards the public welfare, and competences should be shared in a way that best serves the public purposes associated with the respective subject matter. This functional objective is placed in the centre of the following analysis not only because of its immanent practical relevance but also as a pragmatic orientation line for (further) comparative analysis. What is the most rational, most effective and efficient distribution of powers and to what extent are the existing 32 See C. Lefèvre, ‘Metropolitan Government and Governance in Western Countries: A Critical Review’ (1998) 22 International Journal of Urban and Regional Research 2–25, at 9 f. 33 M. Perkmann, ‘Policy Entrepreneurship and Multilevel Governance: A Comparative Study of European Cross-border Regions’ (2007) 25 Environment and Planning C: Government and Policy 816–79, at 867; Cruz and Keefer, Database of Political Institutions. 34 H. van Rijswick and H. Havekes, European and Dutch Water Law (Groningen: Europa Law Publishing, 2012), at 197 ff.

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690 moritz reese schemes in line with this functional ratio? These are apparently the leading questions for problem-oriented analysis and comparison. Before delving deeper into these questions and into the related theory of power distribution, it should be stressed that normative concepts can well serve as a measure but never fully explain the existing distribution of powers. In this regard, it is important to mention that the distribution of powers—just like organization setting as a whole—is regularly a result of historic developments, political deals, victories, and defeats which rarely follow a coherent concept. Even if countries officially subscribe to a particular normative concept of power distribution they usually do not fully overcome the historic acquis of vested powers. Moreover, countries sometimes follow multiple, and often also contradicting ideals of power distribution. Nevertheless, when it comes to identifying, evaluating, and comparing different models of power distribution, the underlying concepts and criteria are, of course, of key importance. In the following, we will first review the main arguments supporting decentralized government, and secondly these will be contrasted with the reasons for centralized and uniform regulation.

30.3.1 Reasons for Decentralization to Local Government Decentralized government is widely seen as a fundamental factor of collective and individual freedom, welfare,35 and democratic immediacy.36 Local (self-)government enables local collectives to decide in accordance with their individual priorities and thus realize these priorities to a greater extent than would be possible in a larger collective. Very much in the sense of Friedrich von Hayek’s market theory, decentralized state organization can be seen as a market of governments competing for constituents and as a competitive search procedure for better approaches.37 Both dynamic efficiency and democratic immediacy are increased by the fact that decentralized structures give citizens a stronger voice to state and claim their preferences and also the option to exit the local community and embark elsewhere. In the light of modern liberty and democracy theory, these arguments clearly support a general primacy of local government which implies that centralization of powers should be legitimized by objective functional reasons. This is further underpinned by the 35 First of all, economic analysis widely supports the primacy of local autonomy following the famous argument of C. M. Tiebout that decentralized governance provides more room for diverse individual/ local preferences and thus generates more welfare than centralized systems. C. M. Tiebout, ‘A Pure Theory of Local Expenditures’ (1956) 64 The Journal of Political Economy 416 f. Another economic argument in favor of decentralized structures points to the ‘dynamic efficiency’ linked to the fact that decentralized structures give a multitude of local actors/communities the opportunity to develop different governance approaches, experiment, and compete for the most efficient solution. See T. R. Dye, T.R., American Federalism—Competition among Governments (Lanham: Lexington Books, 1990), 14 f. 36 R. Watts, Comparing Federal Systems (Kingston, Ontario: Queen’s University Press, 3rd edn. 2004), 192; J. Isensee, Subsidiaritätsprinzip und Verfassungsrecht (Berlin: Duncker & Humbldt, 1969), 44 f: K. P. E. Lasok and D. Lasok, Law and Institutions of the European Union (Oxford: Buttersworths, 7th edn. 2001) at chapter 2, 52 f. 37 A key argument for decentralization in the United States was mentioned by Justice Brandeis in State Ice Co. v Liebermann, 285 U.S. 262, 311 (1932): ‘It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory, and try novel social and economic experiments without risk to the rest of the country.’

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distribution of powers 691 pragmatic argument that local decision-makers are expected to make more adequate decisions due to their proximity to specific problems and their greater knowledge of the relevant local conditions. Primacy of decentralized regulation—as is known—is institutionalized in some regions in the form of the subsidiarity principle. The principle of subsidiarity—originally an invention of Catholic social philosophy38—has been adopted in some federal constellations as a functional confinement to the central government’s radius and, in particular, as an antipode to the notorious centripetal dynamic in state organization.39 The most prominent example is probably the European Union which has explicitly anchored the subsidiarity principle in its constituting treaties. Article 5, paragraphs 3 and 4 of the Treaty of the European Union (TEU) state the following: Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.40

This commitment to autonomy and subsidiarity has two important implications for the distribution of powers: First, it entails a requirement to justify central regulation by a provable functional advantage over regional or local action. This legitimation requirement basically applies to every specific regulatory question and hence it also implies a fine-tuned, very specific distribution of powers which cannot reasonably be achieved by abstract constitutional allotment of (exclusive) fields of competence. A second important implication of functional distribution is, thus, that it assumes a system of concurrent competences and requires a cautious use of such competences that is contained by the requirement of specific functional justification. Manifestations of the subsidiarity principle or, at least, of the above implications of functional power distribution are also found in the constitutional jurisdiction of a number of federal and unitary states such as Portugal, Germany, Canada, and even in France.41 38 In the Encyclical Quadrogiesimo Anno by Pope Pius XI, subsidiarity is proclaimed as the fundamental concept of organization of both the ecclesiastical and the secular communities. 39 E. Brouillet, ‘Canadian Federalism and the Principle of Subsidiarity: Should We Open Pandora’s Box?’ (2011) 54 The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 601–32, at p. 602 f, referring also to E. Orban, La dynamique de la centralisation dans l’État fédéral: un processus irréversible? (Montréal, Quebec: Amérique, 1984); A. Bzdera, ‘Comparative Analysis of Federal High Courts: A Political Theory of Judicial Review’ (1993) 1 Canadian Journal of Political Science 26; A. de Tocqueville, Democracy in America, trans. Henry Reeve, Vol. II. (New York: Adlard and Saunders, 1838). 40 Notably, this clear functional limitation of the Union’s competences was first introduced as a specific caveat to the environmental competences when these were newly established with the Single European Act in 1986. With the Maastricht Treaty of 1992, then, the subsidiarity principle was augmented and formally enshrined in the Treaty as a general limitation of the exertion of the Union’s powers. The Parties to the Union Treaty felt that this general commitment to subsidiarity was an indispensable precondition for any further expansion of the Union’s competences. 41 Article 72 French Constitution: ‘territorial communities may take decisions in all matters arising under powers that can best be exercised at their level’. The Conseil Constitutionnel only reviews this principle as to ‘manifest error of assessment’.

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692 moritz reese Interestingly, US jurisdiction has not subscribed to the subsidiarity principle, despite the country’s pronounced federal structure and despite the fact that the commerce clause, as the central basis of the US Congress legislative competence (in combination with the ‘necessary and proper’ clause), is essentially shaped as a functional and concurrent competence.42 US jurisdiction has, however, neither established a clear primacy of state/local government nor proclaimed stringent requirements of functional legitimation. This may have, indeed, furthered the centripetal tendencies reported in US state practice, not least in the environmental field.43

30.3.2 Reasons for Central Regulation 30.3.2.1 Transboundary Environmental Effects and Goods As is well established in the origins of modern state theory, individual autonomy is essentially conditioned by the potential conflicts that may arise in relation to free development of other individuals. It is for these potential conflicts between free individuals that a common government (leviathan) is needed in order to delineate and define the rules for peaceful co-existence. This very general function of the collective sovereign similarly applies to the co-existence of territorial governments. With regard to territorial collectives, too, it is true that they must submit themselves to a higher, common authority with sufficient power to prevent potential conflicts and thus secure sound co-existence. In this sense, common government is regularly justified with regard to activities that are likely to encroach upon the autonomous development interests of other territories. The most fundamental interest in that regard is that of territorial integrity and of not being raided by neighbours. Besides this, however, there is a myriad of other relevant activities that potentially come into conflict with external interests, and this includes, in particular, transboundary encroachments on the environment. The relevance of transboundary conflicts as a justification for centralized government is further explored in economic theory (of fiscal federalism) and framed by the concepts of externalities and spill-overs. From the economic perspective, the main reason for central regulation is seen in the allocation inefficiencies likely to occur when collectives can act at the cost of other communities without having to pay for these costs. Under such circumstances, the ‘market of governments’ is likely to produce external costs which exceed the benefit of the causal activity. Central regulation is needed in order to effectively prohibit externalities and/or oblige all parties to pay the cost of their activity.44 As to the level of 42 Yet, a functional delimitation to the federal powers is expressed in the ‘Necessary and Proper Clause’ of Art. 1, s. 8, cl. 18 US Constitution: ‘The Congress shall have Power . . . to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in and Department thereof ’. G. A. Bermann, ‘Taking Subsidiarity Seriously: Federalism in the European Community and in the United States’ (1991) 94 Columbia Law Review 331–456. 43 See Dwyer, ‘Symposium Environmental Federalism’, at 1185. 44 On this fundamental theory of ‘fiscal federalism’ see inter alia C. Blankart, Öffentliche Finanzen in der Demokratie, eine Einführung in die Finanzwissenschaft (München: Vahlen, 1994); A. Bretton and A. Scott, The Economic Constitution of Federal States (Toronto: Toronto University Press, 1978); W. E. Oates, Fiscal Federalism (New York: Ashgate Publishing Company, 1972); R. Vaubel, ‘The Public

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distribution of powers 693 centralization this leads to the formula that ‘the collectives, who carry the processes and competence of decision-making in a certain subject matter should be big enough to include all those who benefit and all those who are negatively affected from the decisions made. Consequences of the decisions should not go beyond the collective’.45 External environmental effects are, of course, a paradigmatic case of externalities—and transboundary conflicts respectively—which necessitate and justify centralized regulation. This is apparently the case with ubiquitous air pollution and with pollution and taking of transboundary water resources. Export of hazardous waste can also be seen as an externalization of environmental burden, and the same holds true for cross-border effects and the risk of industrial or nuclear accidents. In all these fields, the potential externalities make a strong case for central regulation. Another transboundary constellation necessitating common authority may arise with the creation or maintenance of global public goods which—like ubiquitous environmental goods—are freely accessible even to those members of the group (of individuals, municipalities, districts, or states) who have not shared the effort of providing or conserving this good. In such cases, mutual regulations are necessary in order to prevent such ‘free-riding’. As long as it is not effectively ensured that all units are paying their share, one is quite likely to find none of them willing to pay so that the opportunity is eventually missed. This is what is described in game theory as the so-called prisoner’s dilemma and has been labelled the ‘tragedy of the commons’. As Elenor Ostrom explained in her groundbreaking work ‘Governing the Commons’ this dilemma can only be overcome through a common framework of rules and an authority that effectively ensures fair sharing of the efforts of providing and maintaining the common good. In environmental policy, this applies, above all, to the use of the atmosphere as a dump for greenhouse gas emissions and other ubiquitous pollutants, to the exploitation of straddling species and to the use/pollution/maintenance of shared water bodies. As to all these critical uses of the environment, too, it follows from the above, that the ruling collective should possibly include all potential users/polluters. With regard to both environmental externalities and common goods, it is essential to note that the need for uniform regulation is generally limited to ‘minimum’ requirements leaving it to the constituent units to adopt more stringent standards. The need to determine common limitations to environmental externalities and a fair (burden) sharing of environmental common goods in no way provides functional justification for full harmonization. We will return to this important limitation of the central state’s environmental responsibility in sections 30.3.2.2.1 and 30.3.3. Nevertheless, in view of the above one would expect to find centralized environmental competences in every federal constitution including inter alia ambient air quality, transboundary water management, protection of common natural heritage and straddling species, and prevention of major industrial accidents as well as shipment of waste and hazardous substances. A number of federations have, indeed, allotted specific environmental competences to their central government. This is the case in, for example, the EU, Swiss, German, and Canadian constitutions. Choice Analysis of European Integration. A Survey’ (1994) 10 European Journal of Political Economy 227–49. 45 R. Peffekoven and S. Kirchhoff, ‘Deutscher und Europäischer Finanzausgleich’ in K. Nörr and T. Oppermann (eds.), Subsidiarität (Tübingen: Mohr Siebeck, 1997), 105 ff., 108.

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694 moritz reese Other important federations, however, have not assigned explicit environmental competences to their federal governments. In these countries—above all the United States—environmental powers are regularly derived from other competences and most notably from the federal key responsibility to warrant and regulate the common market and interstate commerce.

30.3.2.2 Market-related Requirements 30.3.2.2.1 equal market ac cess Common markets bear tremendous economic synergies, and open markets are regularly a core feature of state unity and federal market regimes. However, mutual benefits in welfare may only be expected as far as market access is fully granted even to regions and sectors that are inferior to external competitors, and territorial governments will only be willing to expose these ‘weak sides’ of their economy to other territories if, in turn, they are granted equivalent access to the markets of these competitors. As a consequence, market integration brings with it the necessity of a uniform, centralized market order which regulates equal market access conditions.46 Central market responsibility includes the need to prohibit local environmental standards that would inadequately limit market access or even be misused for protectionist purposes. This is particularly relevant with regard to product-related standards, and it is an essential part of the collective market responsibility to draw the lines between allowable levels of environmental protection/precaution and inadmissible protectionism. As a rule, this is acknowledged as a key responsibility and functional competence of the central government. However, there are different levels and approaches to fulfilling this task. A fundamental constitutional approach is what is termed ‘negative integration’ in the European context, and that is a general prohibition of (unjustified) trade restrictions that is enforced by central jurisdiction. The prohibition of quantitative restrictions set out in Articles 34 and 35 TFEU are most prominent examples of this approach which is ‘negative’ in the sense of abolishing the Member States’ competence to determine for themselves the delicate line between justified protection of local public interest and illegitimate protectionism. This constitutional restraint and particularly also the interpretation of it do have, of course, strong implications for the distribution of market regulation powers. The great body of related case law of the European Court of Justice (ECJ)—as to what determines a national regulation as a relevant market restriction and what may justify such restrictions also in view of environmental protection purposes47—is thus to be seen as a subtle delineation of market regulation competences. A similar ‘negative’ delineation of federal and state competences in market regulation terms exists in the US system in the form of the so-called ‘dormant commerce clause’ doctrine. The US Supreme Court has interpreted the constitutional competence of the US Congress to ‘regulate Commerce with foreign Nations and among the several States . . . ’ (Article 1, section 8, clause 3 US Constitution) as prohibiting any kind of state regulation that restricts

46 V. Vanberg, ‘Constitutionally Constrained and Safeguarded Competition in Markets and Politics’ (1993) 4 Journal des Economistes et des Etudes Humaines 3–27, at 10 f. 47 Seminal judgments are inter alia the most famous Cases 120/78, ECR 1979, 649—Cassis de Dijon; Case C-8/74, ECR 1974, 837—Dassonville; Joined Cases C-267/91 and C-268/91, ECR 1993, I-06097—Keck.

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distribution of powers 695 trade in a discriminating or disproportionate manner. On the basis of the dormant commerce clause doctrine the Supreme Court has also developed an extensive body of case-law with strong parallels to the above mentioned ECJ jurisdiction, and comparing the lines that these exceptional courts are drawing between common trade and regional environmental interest is, of course, highly interesting also beyond the United States and EU.48 Within the limits of this contribution, however, we can only mention that both courts have essentially accepted environmental protection as eligible grounds for protective regulations with trade restricting effects; both courts grant to the states considerable discretionary leeway with regard to necessity and proportionality of environmental regulations and both courts develop differentiated approaches with regard to discriminating measures.49 The ‘negative’ approach of prohibiting unilateral market restrictions is likewise complemented by a ‘positive’ federal competence to harmonize market relevant regulations in the United States and the EU. However, as for the EU, environmental regulation is principally limited to determining minimum requirements while Members retain the right to set out more stringent standards. Hence, the general prohibition of unjustifiable trade restrictions remains the decisive boundary of national environmental competence. Full harmonization on the basis of Article 114 TFEU is only possible for reasons other than (an equal level of) environmental protection. In the United States, there is no such restriction of the commerce clause to just minimum regulation. However, it seems that most of the major legislation is designed as such, anyway (see section 30.3.3). 30.3.2.2.2 level pl aying field Another market related rationale for central regulation is associated with what is commonly marked as a ‘level playing field’ (LPF). The LPF concept is based on the assumption that environmental standards (just as social and workers safety standards) are often associated with higher production costs and competitive disadvantages that local governments would tend to avoid. Therefore, uniform central standards are needed in order to prevent competition from sparking a (de-)regulatory ‘race to the bottom’ and rewarding those who externalize environmental costs the most.50 The LPF argument has played a decisive role in deriving environmental regulation powers from trade-related competences especially in those federations that have not anchored substantive environmental competences in their constitutions—and particularly so in the United States. The US Supreme Court has expressly endorsed the LDF argument as a basis of federal legislation on production related environmental effects. A quintessential passage in Hodel v Virginia Surface Mining & Reclamation Association reads as follows: Moreover, the Act responds to a congressional finding that nationwide surface mining and reclamation standards are essential in order to insure that competition in interstate commerce among sellers of coal produced in different States will not be used to undermine the ability of 48 A thorough comparative analysis is provided by Brenner, Föderalismus im Umweltrecht der Vereinigten Staaten und der Europäischen Gemeinschaft, at 417 ff and 588 ff. 49 See Brenner, Föderalismus im Umweltrecht der Vereinigten Staaten und der Europäischen Gemeinschaft, at 588 ff. 50 This argument has served as a prominent basis for federal environmental regulation in the United States, see Paddock and Bowmar, ‘Environmental Governance in the US’, at 39; H. N. Butler and J. R. Macey, Using Federalism to Improve Environmental Policy (Washington D.C.: AEL Press, 1996), 21.

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696 moritz reese the several States to improve and maintain adequate standards on coal mining operations within their borders. The prevention of this destructive interstate competition is a traditional role for congressional action under the Commerce Clause.51

A critical point about the LPF concept relates to the fact that it is providing a very wide legitimation for any central regulation of purely local effects. Extensive application of the LPF concept also stands in tension with a viewpoint that values diverging environmental priorities as part of the ‘terms of trade’ and efficiency potential of transboundary markets. Eventually, it was shown by empirical research that competition effects of diverging environmental standards are often negligible and ‘race-to-the bottom’ effects are less likely than it might appear from a purely theoretical point of view.52 On the other hand, it cannot be denied that competitive disadvantages are regularly used as a political argument to block unilateral standards, and this political barrier alone gives sufficient reason for central LPF legislation. In sum, it appears sensible to confine the LPF to cases in which diverging local standards make for provable and significant market distortions. Ultimately, it is important to note that, the LPF argument, too, can only justify minimum standards and can by no means be used as an obstacle to more stringent local regulation (see section 30.3.3). 30.3.2.2.3 reduction of adap tation and transfer c osts Full harmonization of product and utility norms is, however, often pursued as a means of reducing formal market barriers and transfer costs.53 As far as environmental standards are concerned this harmonization purpose can apparently come into conflict with the interest of regional and local legislators to pursue their particular priorities in terms of environmental quality and precaution, and it is interesting to compare how this conflict is resolved in different countries and confederations. In the EU these tensions are reflected in the relationship between the harmonization competence of Article 114 TFEU and the environmental competence of Article 192 TFEU and in the pertaining judicial debate.54

30.3.2.3 Equal Living Conditions and Ubiquitous Safety Levels In contrast to the stricter functional criteria reviewed above and to the primacy of decentralized government, some countries are also proclaiming equal living conditions as a nationwide aim in itself. Article 72 German Basic Law, for example, confines federal legislation to what is necessary for ensuring equal living conditions throughout German territory. In environmental terms this may imply a central mandate to regulate equal levels of 51 Decision of 15 June 1981, 452 U.S. 264, 281 f. (1981). 52 Groundbreaking in this regard are: M. Porter, The Competitive Advantage of the Nations (New York: Free Press, 1990), 585 ff; M. Porter and C. van der Linde, ‘Towards a New Conception of the EnvironmentCompetitiveness Relationship’ (1995) 9 Journal of Economic Perspectives 97–118; D. Vogel, Trading Up: Consumer and Environmental Regulation in the Global Economy (Cambridge M.A.: Harvard University Press, 1997), Chapter 8. 53 See Paddock and Bowmar, ‘Environmental Governance in the US’, at 40; H. M. Osofsky, ‘Diagonal Federalism and Climate Change Implications for the Obama Administration’ (2011) 62 Alabama Law Review 237–77, at 288 ff. 54 For a concise overview see L. Krämer, European Environmental Law (London: Sweet & Maxwell, 8th edn. 2016), 122 ff; Leading Case of the CJEU: C-300/89 pf 11 June 1991, ECR I-02867.

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distribution of powers 697 e nvironmental quality and safety also with regard to purely local effects and without any further functional motivation from the purposes described above. In the German case, this is not least an expression of the unitary character of the German Federation which, in the environmental field, is further exaggerated by the fact that the German states are given no general right to adapt more stringent legislation unless expressly conceded in the respective federal laws. As far as the author can see there is as yet no in-depth comparative research on whether and to what extent the ideal of equal living conditions has motivated centralization of environmental powers in other countries and how the tensions between this motif and the functional perspective are resolved.

30.3.3 Intensity of Regulation and Cooperative Structures of Functional Steering 30.3.3.1 Cooperative and Goal-oriented Steering as a Means of Functional Power Distribution Section 30.2.1 has already demonstrated how the ‘cooperative’ model of distribution and use of competences is predominantly shaping the role-sharing in both federal and devolved systems. In light of the above, it is apparent that the predominance of this model is, above all, a necessity of efficient, functional steering. Obviously, functional distribution of competences— according to highest problem-solving capacity—cannot be achieved on the basis of exclusive competences for either only central or only decentralized regulation. If the allocation of competences is oriented towards the highest effectiveness in solving the problems at stake, this regularly implies a fine-tuned ‘cooperative’ system where central government is regulating—on the basis of concurrent competences or by means of devolution—only those questions that necessitate a uniform answer (according to the criteria presented above) while leaving/delegating everything else to regional and local decision-making. This tiered interplay between central framework setting and decentralized implementation is indeed inherent to functional power distribution, especially as regards site specific environmental problems that originate from a multitude of local sources and require site specific solutions.55 As mentioned earlier, this functional mode of macro-micro regulation is frequently praised as ‘cooperative’ approach.56 With regard to this appellation it is, however, important to note that ‘cooperative’ in this sense does not imply a merely voluntary coordination. The functional model of regulatory cooperation remains, instead, a hierarchical approach and essentially based on a (subsidiary) power of the central government to determine the concrete dividing lines between central and regional regulation. Under the cooperative model the central legislators are principally urged to limit their legislation to the level of aims and objectives while leaving the paths and means to the local decision-makers. In the field of environmental protection, for instance, this basically 55 Alberton and Palermo rightly conclude that the macro-micro cooperative approach is inherent to the task of multilevel environmental governance, Alberton and Palermo (eds.), Environmental Protection in Multilayered Systems, at 525. 56 Paddock and Bowmar, ‘Environmental Governance in the US’, at 45 ff; Alberton and Palermo (eds.), Environmental Protection in Multilayered Systems, at 513.

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698 moritz reese advocates a quality-oriented approach with central government confining itself to setting out environmental quality objectives while leaving implementation to local decision-making. This telic approach of cooperative steering is frequently used and quite well developed in EU environmental law. The Union’s Water Framework Directive57 can be cited as a prominent example in this regard. This Directive—adopted in 2000—obliges Member States to implement a set of water quality objectives by 2027, at the latest, while leaving the choice of means and measures to the national governments and administrations. In order to ensure that adequate measures are taken, Member States are obliged to conduct status analyses, draw up and revise management plans with programmes of measures every six years, and conduct continuous monitoring and reporting. A similar approach was taken with the EU Air Quality Directive58 which, likewise, sets out a set of air quality objectives and obliges Member States to draw up and enact adequate clean-up plans within a given time frame. Goal-oriented, ‘telic’ steering is also part of the EU’s nature conservation,59 waste,60 and pollutant emission policy.61

30.3.3.2 The Effectiveness Dilemma of the Cooperative Approach and the Need for Effective Flanking However, the European experience also illustrates the pitfalls of this telic approach of multilevel steering. Most of the examples mentioned above suffer from blatant implementation deficits despite the flanking planning and reporting requirements, and this has recently led to serious scepticism as to whether the ‘programmatic’ approach can be a sufficiently effective means of central steering at all. It has become very clear, at least, that this approach needs strong control and effective mechanisms and capacities for enforcement. The EU Commission, as implementation watchdog, is apparently not sufficiently equipped in that regard. In view of these immanent weaknesses of the telic approach it appears justified—if not indeed necessary—for central legislators also to determine indispensable and important instruments of implementation and enforcement. Such flanking regulations would, for example, include an obligation to establish permit procedures and regular controls with regard to important polluting activities, and they can go as far as to regulate judicial remedies and access to court, as is indeed the case in EU law and internationally under the Aarhus Convention. How far central regulation needs to go in order to effectively enforce substantive laws remains to a large extent a matter of discretion and weighing—of the common interest in effective implementation on the one hand, and the advantages of local autonomy

57 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy, OJ L 327, 22 December 2000, 1–73. 58 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, OJ L 152, 11 June 2008, 1–44. 59 Minimum designation of territory to the Natura 2000 protected site network: Art. 4 Habitats Directive 92/43/EEC, OJ L 206, 22 July 1992, 7. 60 Waste recovery targets, see Article 11 of the EU Waste Directive 2008/98/EC, OJ L 312, 22 November 2008, 3. 61 National Emissions Ceilings for certain pollutants according to Directive 2016/2284, OJ L344, 17 December 2016, 1.

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distribution of powers 699 on the other hand. This is, again, an important boundary issue of rational power distribution and an interesting aspect for further comparative analysis.

30.3.3.3 Minimum Regulation and the Right to ‘Gold-plating’ Another essential feature of the functional delineation of environmental powers has already been mentioned twice, and this relates to the fact that the main motives for central regulation only require global minimum standards but are not opposed to more stringent local regulations (sometimes referred to as ‘gold-plating’).62 The EU has explicitly recognized this and relativized the Union’s environmental competence accordingly. Article 193 states that ‘The protective measures adopted pursuant to Art. 192 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the Treaties’. The latter sentence refers to the general prohibition of unjustifiable market restriction explained above. There is no such clause in the US Constitution, neither has the Supreme Court acknow ledged a general right to gold-plate federal environmental standards. However, Congress has regularly included such rights explicitly in its major environmental legislation, and, hence, it is performing its constitutional competence in a reasonable, functional manner.63 In Germany, there is neither a general constitutional right to gold-plate nor is there a tradition of enabling stricter state regulations within the federal environmental law. Again, this gives expression to the strong unitary character of the German federal system as regards legislative powers. However, an interesting partial deviation from this unitary course has been introduced into the German Constitution by a 2006 reform. With this reform deviation rights were introduced in relation to a number of important environmental competences including nature conservation and water management. In these fields the German states may adopt more stringent regulations but they may also go below the federal level of protection. Therefore, this deviation power cannot be viewed as an element of a functional competence order.

30.3.3.4 The Relation Between Legislative Steering and Local Permitting: Integrated Pollution Control Another important issue regarding the intensity of central steering relates to the scope for local decision-making in environmental authorization procedures and the concept of integrated pollution control. In this regard the EU has witnessed a paradigmatic clash of concepts when it developed its modern legislation on industrial emissions, namely of a standards-oriented concept, on the one hand, and a discretion-oriented, local integration concept on the other hand. The standard oriented concept basically relies on general emissions standards. In principle, it obliges the local administrations to check compliance with these global standards and otherwise reject authorization. The local authorities have no leeway to bring in their priorities. This is what has been established and practised in, amongst other places, most of the continental EU countries.

62 For a broad analysis of theory and practice in the EU see L. Squintani, Gold-plating of European Environmental Law (Dissertation, Groningen University, 2013). 63 Paddock and Bowmar, ‘Environmental Governance in the US’, at 39.

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700 moritz reese The discretion-oriented, (more) integrated approach looks at the project from a more holistic and integrated perspective. It allows local authorities to consider the entire bundle of environmental effects including interdependencies and trade-offs with a view to optimizing the entire environmental performance. This makes authorization much more of a planning decision than just a command-and-control enforcement of distinct emissions standards. It assumes that local authorities are provided with some leeway as to what is allowable on the different pollution paths. The British system is particularly known to have implemented such a discretionary, plan-like approach providing considerable discretion to local authorities, and, interestingly, it appears that the Netherlands are striving to develop their project authorization system much more into a plan-like system that even allows for trades between several projects in a wider area.64 This new Dutch approach would eventually focus more on the gross environmental effects of a bulk of activities in a defined area than just a single installation. Again, the aim is to provide more flexibility and autonomy to local decision-makers. However, such broad local flexibility might stand in tension with the above described need for a global limitation of environmental externalities. This concept will also come into conflict with the EU law. The EU has, in the meantime, implemented an intermediate approach by proclaiming, in principle, an integrated form of pollution control which is, however, operationalized through general—integrated—BAT standards. These integrated standards narrow down local discretion considerably and exhort Member States basically to retain a standards-oriented command-and-control approach. There has been much discussion in the EU about these different approaches and about the conflict between the aims of local optimization and effective avoidance of adverse externalities.65 However, there seems to be no profound comparative analysis of the different permitting schemes as to the scope of local discretion they convey and as to how this affects environmental performance in practice.

30.3.3.5 The Role of Coordination Effective coordination within the multilevel systems is certainly of great importance for a smooth interplay between the central, regional, and local levels of regulation. In general, it appears sensible to distinguish two types of coordination according to whether it is aimed at merely supporting or at superseding hierarchical steering. Auxiliary coordination within the regulation processes is needed in order to ensure that central legislation is paying due regard to the local implementation capacities and enforcement requirements. Moreover, in the implementation process, vertical and horizontal coordination is contributing to coherent and effective enforcement. Diverse forms of such concomitant, auxiliary coordination are found, today, in every modern state and federation, which cannot be further assessed in the confines of this contribution. However, from the perspective of power distribution it is particularly important to consider those forms of coordination that are not only meant to supplement vertical steering but to render central regulation unnecessary. Some countries have partially subscribed to a 64 See M. H. van Rijswick and L. Squintani, ‘Improving Legal Certainty and Adaptability in the Programmatic Approach’ (2016) 28 Journal of Environmental Law 443–70. 65 See the very detailed comparative analysis of E. Bohne, The Quest for Environmental Regulatory Integration in the European Union (Alphen: Kluwer Law International, 2006), with many further references.

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distribution of powers 701 strategic primacy of vertical coordination to the effect that the central regulator should not intervene until after previous efforts of horizontal coordination have failed to deliver agreed solutions. The United Kingdom can be taken as an example of this. As noted earlier (section 30.2.1), Westminster has devolved most environmental matters to the regional states (see section 30.2.1), and devolution is flanked by developed mechanisms of cooper ation between the United Kingdom and the devolved authorities. As a part of this a Joint Ministerial Committee has been established as a forum for UK and devolved ministers to resolve disputes between them.66 Moreover, it is accepted that the UK Parliament should obtain the consent of the devolved governments before acting in a devolved area. As a consequence, decentralized state regulation still prevails in many aspects of environmental protection.67 From a comparative view, it is particularly interesting to contrast such cooperative approaches with centralized approaches, especially in those fields where uniform legislation is called for from a functional perspective. In view of the positive evaluation of the British model one might find more room for horizontal cooperation than the functional perspective suggests on first sight. However, it is clear that central government retains a decisive responsibility for the functioning of cooperative approaches as enforcer of the coordination procedures and by its subsidiary right of intervention.

30.4 Concluding Remarks The above analysis confirms that the distribution of environmental competences is a complex matter that encompasses a diversity of specific solutions, each reflecting their specific field of regulation and the institutional environment. Therefore, meaningful comparison ultimately requires very focused and specific analysis. In contrast, the purpose of this contribution is to provide conceptual groundwork, general measures, and interesting questions as an orientation for future comparative research. From this rather conceptual assessment the following three key aspects should be emphasized in conclusion. First, the formal distinction between federal and unitary states and between federal and devolved systems does not necessarily hinder comparison as to the distribution of powers. Modern unitary states have often developed strongly decentralized structures capable of autonomous and democratic decision-making. Just like federal states, these states regularly follow an approach of cooperative regulation with regional and local competences largely determined by the central legislator. Such schemes of cooperative regulation can be compared regardless of the diverging constitutional outset. Secondly, the functional perspective of power distribution that aims at allocation according to the highest problem solving capacity should form the point of reference and tertium comparationis for any pragmatic comparative review. The measure of functional power 66 Reid and Ross, ‘Environmental Governance in the United Kingdom’, at 168 f. 67 Ibid., at 184, the authors welcome this regulatory diversity and find that the ‘the greater fragmentation of the law across the UK is a price worth paying . . . , even though the result is often simply the same measures appearing in three or four parallel sets of rules rather than the establishment of any distinctly national responses’.

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702 moritz reese allocation can be concretized by economic and organizational criteria which, however, still leaves much room for weighing and interpretation. In this regard, it is particularly interesting to analyse how the different systems relate to the measure of efficient and effective (functional) allocation. Thirdly, functional distribution of powers principally urges central legislators to adopt a ‘telic’ steering approach that sets out common aims and objectives but leaves it to the constituent units to determine the means and instruments according to local priorities. Modern environmental law, and particularly EU environmental law, is increasingly using this goal-oriented approach to federal steering, and it is currently experiencing considerable implementation deficits. With a view to the increasing relevance of cooperative and longterm goal-oriented steering—also as a major pathway to sustainable development—it seems particularly important to focus further comparative efforts on exactly this approach and its implementation in the diverse jurisdictions.

30.5 Select Bibliography Alberton, M. and F. Palermo, Environmental Protection in Multilayered Systems (London: Edward Elgar, 2012). Brenner, W. G., Föderalismus im Umweltrecht der Vereinigten Staaten und der Europäischen Gemeinschaft (Berlin: Duncker & Humblodt, 2003). Brouillet, E., ‘Canadian Federalism and the Principle of Subsidiarity: Should We Open Pandora’s Box?’ (2011) 54 The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 601–32. Butler, H. N. and J. R. Macey, Using Federalism to Improve Environmental Policy (Washington D.C.: AEl Press, 1996). Oates, W. E., Fiscal Federalism (New York: Ashgate, 1972). Porter, M. and C. van der Linde, ‘Towards a New Conception of the Environment-Competitiveness Relationship’ (1995) 9 Journal of Economic Perspectives 97–118. Robbins, K. (ed.), The Law and Policy of Environmental Federalism (London: Edward Elgar, 2015). Weibust, I., N. Paterson, and J. Meadowcroft (eds.), Multilevel Environmental Governance—Managing Water and Climate Change in Europa Europe and North America (London: Edward Elgar, 2014). Watts, R., Comparing Federal Systems (Kingston, Ontario: Queen’ University Press, 3rd edn. 2004).

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chapter 31

Propert y Systems a n d En v ironm en ta l R egu l ation Christopher P. Rodgers 31.1 Overview

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31.2 Property Paradigms and Environmental Law

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31.3 ‘Public’ and ‘Private’ Conceptions of Property

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31.4 Interactions Between ‘Public’ and ‘Private’ Rights

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31.5 Indigenous Property Systems: Custom and Resource Use

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31.6 Property Structures and Environmental Stewardship

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31.7 Concluding Remarks

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31.8 Acknowledgements

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31.9 Select Bibliography

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31.1 Overview An understanding of the role of property rules is important when we consider the nature and design of the legal instruments that a legal system uses to regulate the use of natural resources and to protect the natural environment. Property rights are an important tool for allocating access to disputed land resources, such as minerals and the land’s produce, and they initially define the terms on which access to that resource will be permitted by law or by customary right. The way in which different legal systems structure and allocate property rights will, however, vary enormously. Many Western systems follow a pattern based on notions of ‘ownership’ of the land that is individualistic, exclusionary, and confers land use rights to its resources as one of the ‘bundle’ of rights (or sticks) that ownership confers. Others, for example many aboriginal and indigenous systems, do not recognize ownership of land itself, but recognize a system of customary resource use rights that give the right to

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704 christopher p. rodgers use individual resources to different kinship or social groupings. Whatever ‘property’ model a legal system uses, however, its close association with the allocation of resource use rights is fundamental to understanding not only the social organization that the system of property rights reflects, but also the way in which environmental problems are—or can be—addressed by environmental law. So, for example, in legal systems that have not developed, or choose not to employ, legislation (state law) on environmental protection with appropriate regulatory tools, property rights allocated by customary rules will often be the primary mechanism for the allocation of access to natural resources. The way in which a legal system structures the constituent elements of property rights is also an important issue for environmental governance. In many legal systems it will underpin the design of regulatory ‘command and control’ measures to prevent and remediate environmental pollution; it will shape statutory controls on land use; and the rules determining private property rights will also have major relevance in initiatives to involve private actors in environmental regulation, for example through biodiversity offsetting schemes and the use of conservation covenants. Ultimately, the allocation and nature of property rights will determine the extent to which (and how) the cost of implementing public policy is distributed.

31.2 Property Paradigms and Environmental Law ‘Property’ is a complex concept, representative in its differing conceptions of the different functions that property rights perform. Different narratives (or theories) of property right can be used to capture the differing facets of the relationship of the property holder with (i) land or other objects that are the subject of a proprietary relationship, and (ii) the environment, and the ecosystems that comprise and support it. Entitlements-based models of property focus on whether there is a legally protected right to the exploitation and use of land.1 This approach is often associated with the liberal property theory that characteristically sees ‘property’ as constituting a ‘bundle of rights’ or ‘bundle of sticks’—one of the key rights flowing from a property right being the power to exclude others and the right of the owner to the beneficial use and enjoyment of the land and any personal property over which ownership is claimed.2 It is not concerned with whether, and how, property rights are actually exercised, and the impact this may have on ‘the environment’. While this approach is fundamentally important in many legal systems 1 See e.g. A. Honoré, ‘Ownership’ in A. G. Guest (ed.), Oxford Essays in Jurisprudence (Oxford: Oxford University Press, 1961), chapter V, 107 ff; and J. W. Harris, Property and Justice (Oxford: Oxford University Press, 1996), 140–2. 2 This is considered by some to be a characteristic of Western liberal jurisprudence: see e.g. M. Raff, ‘Environmental Obligations and the Western Liberal Property Concept’ (1998) 22 Melbourne University Law Review 657; J. Penner, ‘The “Bundle of Rights” Picture of Property’ [1996] UCLA Law Review 711.

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property systems and environmental regulation 705 for the determination of ownership and use-entitlements, its failure to consider the functional inter-relationship between property and resource use give it limited use for the study of environmental regulation.3 It also fails to capture the dynamic nature of the natural ecosystems that modern approaches to environmental regulation seek to address, protect, and manage. Resource allocation models of property stress that property rights represent the elements of resource utility that (taken together) make up a land interest. This focuses on the relationship between the ‘owner’, the land over which property rights are asserted, and the resources to which those rights give access.4 Property ‘rights’ will define, distribute, and reflect different elements of resource utility that accrue to the ‘owner’ of the right in question.5 The resource allocation model of property rights captures more fully the dynamic interrelationship between property and instruments of environmental governance.6 It also reflects economic models for property that stress the dynamic nature of property rights,7 and emphasizes their role in providing incentives to internalise the environmental externalities that have emerged from the growing technical potential of agricultural and industrial production to generate pollution and damage biodiversity.8 Resource allocation models also facilitate the identification of interactions between the form which legal controls take and the content of the land use responsibilities that they introduce. In most Western legal systems based on notions of individualized ‘private’ property, much modern environmental legislation executes an extensive reallocation of property rights in natural resources, while leaving the ‘formal’ content of the owner’s property entitlements largely intact. Much environmental legislation is concerned with the reallocation or adjustment of the resource allocation initially effected by property entitlement rules. This will often be achieved by legal and economic instruments external to the property entitlement rules defining the landholder’s interest in the land, for example by environmental legislation restricting potentially damaging land uses, by permit conditions imposed by licensing regimes for industrial production processes, by ‘soft law’ instruments such as codes of practice, and by economic instruments to encourage land management for nature conservation. It is this reallocation of the resource entitlements initially determined by the general law that is one of the principal objectives of environmental law in many Western legal systems. Another way to see property is as a web of interests, involving complex nuanced relationships (between persons and between persons and objects) represented by notions of public

3 C. P. Rodgers, ‘Nature’s Place? Property Rights, Property Rules and Environmental Stewardship’ [2009] 68 Cambridge Law Journal 550. 4 See e.g. K. Gray and S. F. Gray, ‘The Idea of Property in Land’ in S. Bright and K. Dewar (eds.), Land Law: New Perspectives (Oxford: Oxford University Press, 1998), 15. 5 See ibid., at 39 ff. 6 See e.g. Rodgers, ‘Nature’s Place?’. 7 See for instance D. W. Bromley, Environment and Economy: Property Rights and Public Policy (Oxford: Oxford University Press, 1991). See H. Demsetz, ‘Towards a Theory of Property Rights’ [1967] 57 American Economic Review 373; B. Colby, ‘Bargaining over Agricultural Property Rights’ (1995) 77 American Journal of Agricultural Economics 1186 (adopting a bargaining model). 8 See H. Demsetz, ‘Towards a Theory of Property Rights’ [1967] 57 American Economic Review 347, at 348 ff.

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706 christopher p. rodgers trust, natural use, and the law of nuisance.9 Proponents of the resource allocation model of property rights would argue that the ‘bundle of rights’ approach to property entitlements arguably confuses the two central functions of property institutions—to legitimize land use entitlements and to allocate land-based resources. The web of interests approach, on the other hand, reconciles them by attempting to capture the relationship between the owner and objects (such as land) and between the owner and wildlife. It places the environment, and an individual’s relationship with its constituent elements, at the centre of the analysis. This is in marked contrast to the liberal ‘bundle of rights’ approach, which is focused instead on explaining the legal relationship between two or more individuals. As a result, the web of interests metaphor is also able to explain the interconnections between (i) multiple interests in land, (ii) the different exploitative rights that they confer on their owners, and (iii) the needs and characteristics of the environmental features of the land and its constituent ecosystems that require protection. So, for example, this approach would require us to consider wildlife as being dependent upon, and integrally connected to, the land that it inhabits.10 There is a complex web of individuals and organizations that have different legal responsibilities and interests in wildlife, their ecosystems, and the land on which they are to be found. Modern environmental policy in the United Kingdom, for example, is based upon the ‘partnership principle’,11 and this stresses the central role that these different actors can—and should—play in delivering the effective conservation management of protected habitats and species. The web of interests analysis captures this complex set of interactions more fully than entitlement theories of property rights. It also defines property rights by reference to good stewardship and not simply consumptive entitlements and facilitates an analysis of the quasi fiduciary role of property ownership in which the owner has duties of care not only in respect of the land itself but also in respect of the natural environment to which the land (or water) is integrally connected.12

31.3 ‘Public’ and ‘Private’ Conceptions of Property Environmental protection is a ‘public’ or communal interest, and Western systems have difficulty in assimilating public interest objectives into systems of property law based in notions of private right. All legal systems must establish a balance between ‘property’ as a matter of individual right, and the way that the ‘public’ interest in environmental protection is mediated. This will usually involve a reciprocal influence between property rights and legislative measures for environmental protection, as the latter will in turn shape and condition

9 See C. A. Arnold ‘The Reconstitution of Property: Property as a Web of Interests’ (2002) 26 Harvard Environmental Law Review 281. 10 Ibid., at 351, 356. 11 See C. Rodgers, The Law of Nature Conservation: Property, Environment and the Limits of Law (Oxford: Oxford University Press, 2013), 18–23. 12 Arnold, ‘The Reconstitution of Property’, at 352.

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property systems and environmental regulation 707 private property rights and their exercise.13 Different legal systems draw this balance in different ways. Common law systems classically focus on property as representative of private resource entitlements. But some legal systems in the common law family, such as for example the United States and Australia, have developed notions of public trust to explain restrictions on resource use, with the state relying on its ‘entitlement’ as trustee or property holder—a concept rooted in private law—and not on its regulatory role in public law. The public trust approach therefore uses property concepts to protect nature and biodiversity from harm, rather than emphasizing the limitations that a property rights approach to nature might otherwise suggest.14 Animals, plants, and birds enjoy little direct protection in legal systems within the common law family. Neither do the habitats on which they depend for their long-term survival. The focus of common law remedies is on private interests. The protection of the special attributes of an area of land as a valuable natural habitat is a public interest consideration that is not captured by common law property rules, which are indifferent to attributes or features that make land valuable as a habitat for wildlife.15 The common law is neutral as to the environmental characteristics—or otherwise—of property interests unless they have a quantifiable value that can be reflected in an award of damages or an injunction. The development of the public trust doctrine in some jurisdictions, notably the United States, seeks to address this by bringing wildlife within the matrix of property relationships and asserting that the state ‘owns’ wildlife. This allows the recognition of rights and responsibilities towards wildlife, and indicates that the state should take legal action to restrain harmful activity and recover monetary compensation for damage to wildlife under the parens patriae doctrine.16 Systems grounded in conceptions of private property also struggle to adopt an ecosystem level approach to environmental protection. This requires a large-scale approach to environmental management, focusing for example at the level of the river basin or catchment, and paying attention to the range, feeding habits, and breeding processes of protected species of bird, animal, and aquatic wildlife. This is difficult where land has been divided up into individual parcels, and where ownership of each unit does not reflect the land’s natural features. English law focuses on the individual rights of the holder of each property unit, who enjoys considerable rights of exploitation over natural resource. More problems are caused by the possessory basis of ownership in most common law systems. This has consequences for the rules governing the exploitation of birds, animals, and plants. Plants growing in the soil are regarded as the property of the owner of the soil. The common law also gives the owner the right to exploit wild animals (animals ferae naturae) that come onto his land. While they are alive, wild animals and birds are not subject

13 See E. Scotford and R. Walsh, ‘The Symbiosis of Property and English Environmental Law: Property Rights in a Public Law Context’ (2013) 76 Modern Law Review 1010. 14 C. T. Reid and W. Nsoh, The Privatisation of Biodiversity (Cheltenham: Edward Elgar, 2016), 60. 15 See e.g. Pride of Derby Angling and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch. 149. 16 D. Musiker, T. France, and L. Hallenbeck, ‘The Public Trust and parens Patriae Doctrines: Protecting Wildlife in Uncertain Political Times’ (1995) Public Land Law Review 87, at 115. Also J. Sax, ‘The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention’ (1970) 68 Michigan Law Review 471; M. Blumm and A. Paulsen, ‘The Public Trust in Wildlife’ (2013) 6 Utah Law Review 1437; Reid and Nsoh, The Privatisation of Biodiversity, at 58–60.

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708 christopher p. rodgers to absolute ownership in English law.17 The landowner has a right to hunt and catch wild creatures, however, and to reduce them into his possession. This is sometimes referred to as a right of ‘qualified property’ in those wild animals present on the owner’s land,18 and interference with this right (e.g. by interfering with the owner’s hunting activities) is actionable.19 Once a wild creature has been killed or captured it become personal property, however, and is the property of the owner of the land on which it was found.20 This will be the case in English law even if it is killed and reduced into possession by a trespasser (e.g. a poacher, who thereby commits theft). In Scotland, on the other hand, the possessory rationale for property rights is taken to its logical conclusion, and a wild animal taken by a poacher or trespasser will become the property of the latter, and not of the owner of the land on which it was taken—although the landowner may have a right to compensation from the trespasser in these circumstances.21 Because wild animals and birds are not ‘property’ they have not, historically, been recognized as worthy of protection by the common law. In the absence of special statutory provision, therefore, it follows that the killing or destruction of wild animals would not in itself be a wrong against anyone and—unless a recognized property right is incidentally affected22—it cannot be remedied in a civil action for damages or an injunction. This fundamental proposition explains the development of extensive statutory protection for wild animals, birds, and plants since the Second World War, and in particular the introduction by statute of criminal liability for the protection of many endangered and vulnerable species of bird, animal and plant, for example by Part 1 of the Wildlife and Countryside Act 1981 and by species-specific legislation such as the Protection of Badgers Act 1992 and the Conservation of Seals Act 1970. The protection of wildlife habitats, on the other hand, raises different questions. The key challenge for terrestrial habitats is to ensure that the land on which they are found is managed by landowners in a manner that protects and promotes the special conservation features that are to be found there—and this involves reconciling the property rights of the landowner with the public interest considerations represented by the conservation needs of the site’s natural features. The exploitative land use rights conferred by property rights in English law are the starting point for this exercise and underpin much of the legislation on habitat conservation in English law. Historically, the common law recognized very few restrictions on the exploitative rights conferred by property ownership—Cuius est solum eius est usque ad coelum et ad inferos, ‘he who owns the land owns everything reaching up to

17 Blackstone’s Commentaries on the Laws of England, Vol. II, 391. And see The Case of Swans (1592) 7 Co Rep 15b at 7b; Blades v Higgs (1865) 11 HL Cas 621. 18 See Blackstone’s Commentaries, Vol. II, 393; K. J. Gray and S. F. Gray, Elements of Land Law (Oxford: Oxford University Press, 5th edn. 2009), 1.2.84, 1.2.85. 19 Kearry v Pattinson [1939] 1 KB 471. 20 Blackstone’s Commentaries, Vol. II, 389–92. See Blades v Higgs (1865) 11 HL Cas 621. Merely setting traps for wild animals does not in itself create a right of property in the animals hunted, however: Cresswell v DPP [2006] EWHC 3379 Admin. 21 See C. T. Reid, Nature Conservation Law (Edinburgh: Thomson/W.Green, 3rd edn. 2009), 1.3.5. 22 As e.g. in Pride of Derby Angling and Derbyshire Angling Association Ltd v British Celanese Ltd [1952] Ch 149 (pollution causing fish kill restrained by an injunction awarded to protect riparian rights owned by the angling association).

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property systems and environmental regulation 709 the very heavens and down to the depths of the earth’.23 This is not an accurate description of the land use rights conferred by property ownership in the modern law.24 It is, nevertheless, the basis for the principle that, unless restricted by statute, property rights grant potentially limitless rights of exploitation of the land resource over which they are held. This explains why the legal and economic instruments applied by environmental law are primarily concerned with adjusting the property rights of the landowner by reallocating to public bodies important decisions on access to, and the use and exploitation of, protected natural resources.

31.4 Interactions Between ‘Public’ and ‘Private’ Rights New approaches to environmental protection in many Western legal systems have sought to give private property concepts an enhanced role in the administration of environmental policy. This has been exemplified by the use of private agreements to pursue environmental protection objectives—using, for example, conservation easements, biodiversity offsetting, and environmental land management agreements between public bodies and private landowners. As we will see below, the distinctions between ‘public’ and private’ instruments have little meaning in many indigenous systems, which adopt a more holistic approach to environmental stewardship and the symbiotic relationship of man and nature. Conservation easements are widely used in some jurisdictions, for example the United States, Australia, and New Zealand, to underpin conservation obligations attached to privately owned land. The terminology used differs depending upon each jurisdiction’s land law rules: covenants (England, New Zealand), easements (the United States), conservation burdens (Scotland), and in some civilian jurisdictions, servitudes. Their increased use in England and Wales has been advocated by the Law Commission.25 Their use has hitherto been restricted by the law applied to the creation and subsequent enforcement of incorporeal hereditaments. English law has developed rules to prevent the creation of land obligations of indefinite duration. There must be a dominant and a servient tenement, and an easement or covenant over land must be for the benefit of a specified area of other land (the ‘dominant’ tenement).26 This means that an easement to manage land for conservation purposes cannot normally be taken from its owner unless the beneficiary has other land that is to benefit from the obligation that is created.27 This is intended to prevent the creation of

23 For a detailed analysis of this concept and its application (or otherwise) in modern English Land Law see Gray and Gray, Elements of Land Law, at 1.2.15 et seq. 24 The Town and Country Planning Act 1947 e.g. nationalized all development rights in land. Its successor, the Town and Country Planning Act 1990, requires planning permission from the local planning authority before ‘development’ on or under land can take place; Town and Country Planning Act 1990, ss. 55, 57. 25 Law Commission, Conservation Covenants, Law Com. No. 349 (2014). 26 See Re Ellenborough Park [1956] Ch 131, 140 (Danckwerts J). 27 London and Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [1992]1 WLR 1278, [1994] 1 WLR 31.

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710 christopher p. rodgers obligations of indefinite duration that would, otherwise, act as a ‘clog on the title’ to the property that renders it unmarketable.28 Similarly, a covenant cannot normally require the servient owner to spend money or undertake positive or onerous activities on the land burdened with a covenant.29 Unlike the customary indigenous systems discussed below, most Western property systems do not allow for wider public policy when determining the type of obligation that can be created over land. Conservation covenants pull strongly in the opposite direction—it is a private arrangement that is intended to pursue a public policy purpose. Should they be subject to public scrutiny, should easements or covenants be limited to approved parties with recognized conservation objectives, and should such arrangements ‘run with the land’ to bind it indefinitely in the hands of successive owners?30 The rules have been relaxed in English Law to permit the National Trust to take conservation easements and covenants for an indefinite or fixed period from a landowner, even though it has no land of its own in the immediate vicinity.31 They can, also, enforce a covenant or easement against a successor in title of the owner of the servient land over which the easement or covenant subsists.32 Similar powers have been given by statute to the Queen Elizabeth II National Trust in New Zealand, and have been used extensively to create perpetual covenants for both conservation and public recreational access to private land in New Zealand.33 In Scots law a ‘conservation burden’ can be created and enforced against successive owners of the burdened land by charities and other bodies who do not own nearby land that is benefitted.34 A conservation burden can be created for the purpose of preserving or protecting for the benefit of the public ‘. . . any special characteristics of the land (including . . . a special characteristic derived from the flora, fauna or general appearance of the land’35). The power to enter into conservation burdens is restricted to named public and conservation bodies; and in cases where the burden is created otherwise than by the Scottish Ministers or a statutory conservation body, then the latter must consent to the creation of the burden in its favour before it can be registered.36 This prevents the proliferation of conservation burdens and limits their application to responsible public and conservation bodies that have a clear focus to wildlife and/or landscape protection and the protection of the built environment in Scotland. The bodies recognized as ‘conservation bodies’ for this purpose include all the local authorities in Scotland and a further fifteen public and

28 See Gray and Gray, Elements of Land Law, at 5.1.22. 29 See Liverpool CC v Irwin [1977] AC 256. 30 See Reid and Nsoh, The Privatisation of Biodiversity, chapter 5, esp. 179–85. 31 National Trust Act 1937, s. 8. 32 Ibid.: ‘[The National Trust] shall have power to enforce such agreement or covenant against p ersons deriving title under him in the like manner and to the like extent as if the National Trust were possessed of or entitled to or interested in adjacent land and as if the agreement or covenant had been and had been expressed to be entered into for the benefit of that adjacent land.’ 33 See Queen Elizabeth the Second National Trust Act 1977 (New Zealand), s. 22. 34 See generally C. Reid, ‘The Privatisation of Biodiversity? Possible New Approaches to Nature Conservation Law in the UK’ [2011] 23 Journal of Environmental Law 203, esp. at 212–4. 35 Title Conditions (Scotland) Act 2003, s. 38(1). And see the Scottish Law Commission, Report on Real Burdens (Scot Law Com. No. 181 (2000)), paras 9.1 et seq. 36 Title Conditions (Scotland) Act 2003, s. 38(2).

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property systems and environmental regulation 711 private bodies.37 Once created, a conservation burden can only be assigned to another conservation body or to the Scottish ministers.38 And if the conservation body holding the burden ceases to be approved under the relevant Scottish legislation, then the conservation burden is extinguished.39 Further safeguards require that a conservation burden must be registered, and a burden can be varied or discharged at any time by the Lands Tribunal.40 Interactions between the public interest and private property rights can also be seen in (i) the development of ‘biodiversity offsetting’, and (ii) in the use of contractual measures to deliver improvements in the environmental management of land and natural habitats. The idea underpinning biodiversity offsetting is simple: if permission is to be granted for the development of land, then the developer should provide an equivalent site with appropriate habitat potential to replace any elements of biodiversity that will be damaged or lost because of the development. But how is complementarity to be assessed and achieved? And how do we ensure adequate baseline monitoring of the habitat that has been lost and of that replacing it.41 Nevertheless, it has become a key element in developing a market in property rights and unlocking development values in land, for example under the US wetland mitigation scheme, and in Australian schemes used in Queensland and New South Wales. But the long-term nature of habitat restoration makes it uncertain that gains will be realized, and measurable. Offsets are also a feature of emissions trading schemes to reduce greenhouse gas emissions—but in the case of carbon trading schemes the relevant greenhouse gases are clearly identified and a common currency for exchange can be established. The position is different for biodiversity where the factors making up each ecosystem will vary, making ‘equivalence’ more difficult to identify, and (more importantly) to achieve, in an offset arrangement. The regulatory context for taking the offset will dictate that a public body is involved in the agreement, and it may be structured around a public authorization, for example it may be a condition of a planning permission or of an environmental permit and may be granted in the form of a planning agreement,42 a conservation easement or covenant, or a simple contract. Management agreements can take several forms. They may be entered into under statutory powers conferred on public bodies responsible for environmental protection and nature conservation—for example the statutory conservation bodies in the United Kingdom have extensive powers to enter into management agreements with landowners in protected areas such as Sites of Special Scientific Interest (SSSIs) and European wildlife sites.43 Provision is also made for the conclusion of management agreements with landowners under 37 See ibid., s. 38(4) and the Title Conditions (Scotland) Act 2003 (Conservation Bodies) Order 2003, Sch., SSI 2003/453. The authorized bodies include, for instance, the National Trust for Scotland, the RSPB, the Woodland Trust, the John Muir Trust, and the Landmark Trust. 38 Title Conditions (Scotland) Act 2003, s. 39. 39 See ibid., s. 42. 40 See ibid., Part 9, s. 90 et seq. The Tribunal must have regard to, inter alia, the extent to which the burden confers benefit on the land to be benefitted, or (if there is none) it must consider the extent to which the burden confers benefit on the public: ibid., ss. 98 and 100(b). 41 See Reid and Nsoh, The Privatisation of Biodiversity, chapter 4 for a thorough examination of the benefits/disbenefits of offsetting as a concept and its implementation. 42 e.g. in the English Law context an agreement made under the Town and Country Planning Act 1990, s. 106, as amended. 43 See the Countryside Act 1968, s. 15, the Natural Environment and Rural Communities Act 2006, s. 7, and the Conservation of Habitat and Species Regulations 2017, reg. 20, SI 2017/1012 (European sites).

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712 christopher p. rodgers ‘agri-environment’ schemes funded by the EU within the rural development budget.44 These have become a prominent feature of policy for the conservation of the ‘farmed’ environment.45 In the case of both management agreements and biodiversity offset arrangements, the landowner enters into an economic exchange in which property rights are traded for payment (or in the case of a conservation easement for a release of development value). This highlights the importance of the resource allocation function of property rights. The landowner can only ‘trade’ elements of resource utility which s/he possesses. If access to the land resource has already been reallocated by environmental law, then the property rights thus reallocated will not be available to trade under an agreement or within a conservation covenant.46

31.5 Indigenous Property Systems: Custom and Resource Use The treatment of ‘property’ interests, access to resources, and the environmental implications of the use of natural resources are organized very differently in many indigenous legal systems. In traditional Maori, and aboriginal, society, no one individual ‘owned’ land in the sense that they controlled access to all its resources, and had a right to use and possess it to the exclusion of all others. Although there are customary rules that provide for the management of land in ways that are similar in some respects to the incidents of ownership recognized in Western legal systems, the relationship between the land’s resources and the patchwork of user groups and individuals who have access to those resources, is very different. In Maori society, different levels of the hapu social order exercised different kinds of rights in the same land.47 Iwi, hapu, and whanua kinship groups could exercise different resource use rights in land. The Maori concept of taonga (‘property’) also differed from that used in Western systems, and especially that in English law. The land itself was not ‘owned’, neither was the water in a lake or a stream. What was ‘owned’, or subject to taonga, was, rather, the right to use specific resources of land, sea, or inland waters. Different individuals or kinship groups could have the right to gather crops, fruit, or berries; to harvest fish or to use specific fishing places; or to catch birds.48 These rights could, moreover, be exercised by different levels of the social order: for example the whanua (loosely corresponding to the family group) who cleared a patch of forest may have the right to cultivate the plot thus created, while other rights were open to all members of the iwi (the widest kinship group,

44 See 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 (EAFRD) (the ‘Rural Development Regulation’). 45 See for further detail Defra, Agriculture in the United Kingdom 2014 (2015), Table 10.7. 46 See Rodgers, Law of Nature Conservation, at 290 and Box 8.1. 47 See R. Boast, A. Erueti, D. McPhail. and N. F. Smith (eds.), Maori Land Law (Wellington: LexisNexis, 2nd edn. 2004), 42ff. 48 Boast, Erueti, McPhail, and Smith (eds.), Maori Land Law, at 53.

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property systems and environmental regulation 713 loosely corresponding to a tribe).49 Importantly, the rights of each kinship group could not be transferred by sale, as ‘property’ might in a Western legal system, but remained with the kin group and its descendants. Resource use rights could be transferred by several means recognized in customary Maori law, for example by ‘take tupuna’ (inheritance from ancestors), ‘take tuku’ (gifting) or ‘take raupatu’ (conquest).50 Of importance in this context are traditional Maori concepts of stewardship, which speak to a very different relationship between kinship groups and the land to that underpinning most Western legal systems. The relationship of people to the land and its resources, and the associated customary concept of stewardship, are reflected in the Maori understanding of Kaitiakitanga. This is a concept that has been developed through the need to articulate Maori spiritual and cultural concepts in the process of settling claims in the Waitangi Tribunal claims process. Its central core is an understanding that people live in a symbiotic relationship with the earth and all living organisms, and have a responsibility to enhance and protect its ecosystems.51 Humans are not superior to the land; the land sustains the people, and humans therefore have a reciprocal relationship that requires them to sustain the land’s resources through their role as kaitiaki (i.e. guardians and managers).52 The kin group exercising these responsibilities could be the iwi, hapu, or whanua kinship unit. The scope for traditional Maori concepts of collective resource use and stewardship— Kaitiakitanga—to be expressed in the modern law is limited but not insignificant. The ownership of land in New Zealand is based on the Torrens land registration system now set out in the Land Transfer Act 1952. This is based on the concept of individual and exclusive ownership of land. Title registration in this form is, of course, very different to the Maori concepts of shared use, and the customary distribution and use of the land’s resources, as described above. Under the Torrens system, once land is registered the title becomes indefeasible and cannot be challenged. The 1952 Act provides that, except in the case of fraud (and with limited other exceptions set out in the Act) the estate of a registered proprietor is paramount to all estates or interests ‘except those encumbrances, liens, estates or interests’ that are noted on the register.53 Title to Maori land, once registered, will be subject to the same rules as ‘general’ (non-Maori) land. Moreover, judicial interpretation of the fraud exception to indefeasibility—as limited to actual dishonesty, and not the wider concepts of imputed or equitable fraud54—has reinforced the supremacy of title registration over Maori titles, some of which were acquired by settlers in dubious circumstances. One consequence of this has been ‘that Maori could not attack a title on the grounds of non-compliance with the safeguards in the Native Lands Acts, unlawfulness and dishonesty not being at all the same thing’.55

49 See e.g. the definition of Whanganui ‘iwi’ in the Te Awa Tupua (Whanganui River Settlement) Act 2017, s. 8. This defines the iwi as all people who are descended from one or more named ancestors and who have exercised customary rights in the river at any time after 6 February 1940. 50 Boast, Erueti, McPhail, and Smith (eds.), Maori Land Law, at 54. 51 A. Shakell, ‘Ownership Rangatiratanga and Kiatiakitanga: Different Ways of Viewing Land Entitlements in Aotearoa/New Zealand’ 2 Te Tai Haruru/Journal of Maori Legal Writing 82, at 86. 52 Ibid., at 86–7. 53 Land Transfer Act 1952, s. 62. 54 See the Privy Council decision in Assets Co Ltd v Mere Roihi [1905] AC 176. 55 R. P. Boast, ‘The Implications of Indefeasibility for Maori Land’ in D. Grinlinton (ed.), Torrens in the Twenty First Century (Wellington: LexisNexis, 2003), 114.

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714 christopher p. rodgers Nevertheless, Maori customary law and cultural norms still play an important part in the organization of property holding and resource use in New Zealand. Maori customary law is still effective to determine the internal content of property rights protected by native or aboriginal title; although the proportion of land that is still held as ‘native’ land in New Zealand today is comparatively small.56 The Maori Land Court exercises jurisdiction to determine claims to ownership or possession of Maori land, and to determine the relative interests of owners of Maori land who hold as tenants in common.57 The court is directed to use its powers, insofar as possible, to ensure the retention and development of Maori land in the hands of its owners, their hapu and whanau.58 Maori cultural traditions are also imported into the regulation of the wider environment. For example, the Resource Management Act 1991 directs that all persons exercising powers under the Act must recognize and provide for ‘the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, Waahi tapu and other taonga’.59 This is significant in the context of development consents and environmental permitting, key public functions within the 1991 Act. Maori customary rules have also been given prominence in legislation implementing the settlement of disputes within the Waitangi Treaty settlement process. The most innovative and important is the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, which settled the longest running litigation over Maori land claims in New Zealand history. The Whanganui river is New Zealand’s longest navigable river, stretching from Mount Tongariro in the North Island to the Tasman Sea. The 2017 Act confers legal personality on the river system, giving it a unique legal status and recognizes not only the need to protect the ecosystem it represents, but also to provide a legal forum in which to implement Maori cultural and spiritual attitudes to the relationship of land and people. The legal framework established by the 2017 Act, within which this is to be achieved, involves the legal recognition of Te Awa Tupua as comprising not only the river itself, but also all its tributaries and its physical and metaphysical elements, as one indivisible and living whole. Te Awa Tupua is expressly recognized as a legal person with the full capacity of a legal person.60 The responsibilities and liabilities of Te Awa Tupua are to be exercised by representative trustees (‘Te Pua Tupua’). Their functions are set out in some detail in the 2017 Act. They include not only exercising the functions of landowners, promoting the health and well-being of Te Awa Tupua, and entering into agreements on its behalf, but also developing mechanisms for interaction with, and accountability to, the iwi and hapu with interests in the Whanganui river.61 The Act provides for the appointment of two Te Pua Tupua: one appointed by and representing the iwi with interests in the Whanganui river, and one appointed jointly by the Minister for the Waitangi Treaty Settlements and the Minister of Justice.62 The 2017 Act also establishes a strategy board (‘Te Kopuka’) to oversee the development of a management strategy for the river system. The innovative nature of this arrangement cannot be over emphasized. It implements the formal recognition of an 56 G.W.Hinde, N.Campbell, P.Twist, Principles of Real Property Law (Wellington: LexisNexis, 2nd edn. 2013) 2.016 (NZ). 57 See Maori Land Act 1993, s. 18(1)(a) and (b). And for a discussion of the wider jurisdiction see Deputy Chief Judge Smith (rtd.) in Boast, Erueti, McPhail, and Smith (eds.), Maori Land Law, at chapter 5. 58 Maori Land Act 1993, s. 2. 59 Resource Management Act 1991, s. 6 (NZ). 60 Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s. 14. 61 2017 Act, ss. 18 and 19. 62 2017 Act, s. 20.

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property systems and environmental regulation 715 ecosystem as a natural legal person with all the powers and liabilities that this entails: and in so doing it will seek to implement a management strategy that is based explicitly on an ecosystem level strategic vision for the environment of the river and its tributaries, while also recognizing its spiritual and cultural significance to the Maori people. It will, inevitably, provide a platform for the development of a new and innovative approach to the relationship between notions of ‘property’ and resource use, within a framework of legal rules focused to the need to preserve and nourish the river’s ecosystems.

31.6 Property Structures and Environmental Stewardship How effectively do the different property structures outlined in this chapter foster the stewardship of natural resources? The common law model of property rights recognizes no inherent restriction on land use rights. There is little room in the common law notion of ‘property’ for the idea that the landowner must also assume environmental responsibilities with the bundle of rights conferred by land ownership.63 Customary and indigenous systems, on the other hand, have tended to view the relationship between man, property, and the environment as symbiotic. For customary systems, stewardship is inherent in man’s relationship with the land and its resources. Implementing an ethic of environmental stewardship in Western systems of individualized land use rights is far more difficult and complex. In most Western and common law based systems, modern environmental and development control law applies so many constraints and restrictions on land use that it is now arguably possible to characterize ‘property’ as a socially derived set of land use privileges and obligations, in which obligations of environmental stewardship are an inherent attribute of property rights.64 This has been achieved in a piecemeal manner, without an overarching reformulation of property rights or the development of a theory of ‘environmental property’. But property rules are essentially social rules for solving the problem of conflicts over access

63 But note the interesting analysis of early cases in the law of nuisance, in which there is evidence that the judges were alive to the moral obligations of landownership: see e.g. S. Coyle and K. Morrow, Philosophical Foundations of Environmental Law (Oxford: Hart Publishing, 2004). 64 See e.g. Gray and Gray, Elements of Land Law, at 1.5.51–1.5.57 (‘Property becomes not a summation of individualised power over scarce resources, but an allocative mechanism for promoting the efficient or ecologically prudent utilisation of . . . resources. So analysed, this community-oriented approach to “property” in land plays a pivotal role in the advancement of environmental welfare. Property becomes a form of stewardship and resonates with the obligations of a civic or environmental trust’ (ibid., at 1.5.57). See also: K. Gray and S. F. Gray, ‘Private Property and Public Propriety’ in J. McLean (ed.), Property and the Constitution (Oxford: Hart Publishing, 1999), chapter 2; J. Waldron, ‘What is Private Property?’ (1985) 5 Oxford Journal of Legal Studies 313; W. N. R. Lucy and C. Mitchell, ‘Replacing Private Property: the Case for Stewardship’ (1996) 55 Cambridge Law Journal 566; M. Raff, ‘Environmental Obligations and the Western Liberal property Concept’ (1998) 22 Melbourne University Law Review 657; T. W. Frazier, ‘The Green Alternative to Classical Liberal Property Theory’ (1995) Vermont Law Review 299; M. B.Metzger, ‘Private Property and Environment Sanity’ [1976] 5 Ecology Law Quarterly 792; E. T. Freyfogle, ‘Land Ownership and the Level of Regulation: The Particulars of Owning’ (1999) 25 Ecology Law Quarterly 574.

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716 christopher p. rodgers to resources.65 A model for ‘environmental’ property rights would modify those property entitlements that currently confer a right to undertake environmentally damaging land use, and incorporate an explicit recognition of a basic responsibility of environmental stewardship as an integral component of property entitlement rules at common law. The comparison with the Maori concept of Kaitiakitanga is obvious, but the means for introducing a stewardship ethic of this kind into the individualized system of property rights in Western and common law systems is less clear, as is the desired content and extent of the stewardship ethic itself. What obligations would a duty of environmental stewardship impose, and how would they be determined? A key issue would be the choice of environmental standards to be applied in different situations to benchmark performance and liability. The common law currently applies very general standards of property stewardship, for example through the law of nuisance. The reasonable use standard used in nuisance cases to determine potential liability to neighbouring property owners is notoriously difficult to predict in its application. It also references public law standards to determine the standard of ‘reasonable’ land use in each case—for example through the ‘locality’ doctrine by which planning permissions which change the character of land use in a locality can determine what is, and is not, viewed as ‘reasonable’ land use.66 A grant of planning permission by the public authorities, or of an environmental permit, does not confer a statutory authority to commit nuisance.67 Nevertheless, statutory standards set externally to the property domain of the owner are important in determining what is a ‘reasonable’ land use in different cases—and in thereby determining liability for environmental damage and remediation. The modification of individual property entitlements to include a general duty of environmental stewardship could lead to more precise standard setting, while at the same time incorporating many of the existing standards applied through administrative measures, for example by planning permission, environmental permitting, and other licensing regimes. It would also widen the basis, scope, and application of environmental controls on land use. Currently, the law of nuisance provides a remedy for a neighbouring landowner to challenge land uses that are damaging his/her property interest. While this provides an important remedy for environmental torts, it has inherent limitations as a broadly based tool of environmental management.68 Adopting a stewardship duty as an integral element of the obligations of property ownership could provide a more widely based remedy, for example by vesting power to enforce the duty on the public authorities, decisions by whom might be made expressly open to challenge by citizens in the courts69 or, in default, on judicial review. The stewardship obligation itself could be based upon a model reflecting a ‘suitable for use’ standard, not dissimilar to that already used in the law of contaminated land, where the legal standard for the clean-up of contaminated sites is dependent upon the use for which 65 See Waldron, ‘What is Private Property?’, at 318. 66 St Helens Smelting Co. v Tipping (1865) 11 HLC 642; Sturges v Bridgman [1879] 11 Ch D 852. 67 Coventry (t/a RDC Promotions) v Lawrence [2014] UKSC 14. 68 See e.g. M. Lee, ‘Nuisance Law and Environmental Protection: A Study of Nuisance Injunctions in Practice’ (2014) 77 Modern Law Review 669–74; M. Lee, ‘What is Private Nuisance?’ (2003) 119 Law Quarterly Review 298. 69 e.g. the EU Environmental Liability Directive empowers citizens to request that enforcement action be taken by the public bodies and confers a right of action to enforce this duty. See Art. 12 Directive 2004/35/EC on Environmental Liability; and (in England and Wales) reg. 29 Environmental Damage (Prevention and Remediation) Regulations 2009, SI 2009/153.

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property systems and environmental regulation 717 land has development consent.70 Similarly, in the case of agricultural land the stewardship obligation might reflect the principles of sustainable agriculture incorporated in the principles of good agricultural practice, and in the requirements for subsidy payments, for example the obligation to maintain land in good agricultural and environmental condition.71 The reform of property entitlements in Western systems would rebalance rights and interests away from the private benefit of the landowner and recognize the wider community interest in, and reliance upon, the sustainable management of land.72 It would also underpin improvements in environmental management secured through publicly funded schemes73 more effectively than the law at present allows. The property entitlements that could be traded in an economic exchange would be adjusted to reflect the new stewardship obligation implicit in property entitlements. It would also bridge the gap between public law mechanisms for environmental regulation and the common-law concepts that shape private property rights in land. Common law concepts focus on the commercial and exploitative rights granted by property rights—as seen, for example, in the rules for establishing the validity of conservation easements and covenants discussed above. These are largely inappropriate for securing public policy objectives in land management.

31.7 Concluding Remarks Studying the implementation of environmental law in comparative context requires an appreciation of the impact on environmental governance of the tenets of property law. Common law notions of private property right 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 environment. Stewardship as an inherent attribute of property rights has largely been ignored in the common law systems, and little attention has been paid to the particular importance of differing conceptions of property right in relation to the protection of the ‘natural’ environment. In some indigenous legal systems, on the other hand, the relationship between notions of ‘property’ and resource use are not only understood very differently, but implemented in a way that focuses on the interrelationship between people and the environment, rather than the ‘individualistic’ 70 See Defra, Environmental Protection Act: Part 2A—Contaminated Land Statutory Guidance (2012), available at: http://www.defra.gov.uk/publications/files/pb13735cont-land-guidance.pdf. This guidance replaced guidance issued by Defra in 2006, and elaborates on the suitable for use concept in terms that stress the need to minimize risk and harm, rather than make land suitable for its current use. But this is unlikely to make much difference to the application of the guidance in practice: see further E. Lees, ‘The Contaminated Land Regime—New Guidance, and a New Philosophy?’ (2012) 14 Environmental Law Review 267–78; and see generally, E. Lees, ‘Interpreting the Contaminated Land Regime: Should the “Polluter” Pay?’ (2012) 14 Environmental Law Review 98–110. 71 See Arts. 91–101 and Annex 11 of Regulation 1306/2013 of the Council and the Parliament on the financing, management and monitoring of the Common Agricultural Policy (the ‘horizontal’ regulation), OJ 2013 L347/549. 72 See W. Lucy and C. Mitchell, ‘Replacing Private Property: The Case for Stewardship’ (1996) 55 Cambridge Law Journal 566. 73 e.g. agri-environment schemes funded through the EU Common Agricultural Policy’s rural development programmes, such as (in England) Environmental Stewardship and (since 2016) the Countryside Stewardship Scheme.

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718 christopher p. rodgers approach seen in common law property systems. Maori and aboriginal customary arrangements are an example of this, as we have seen. In jurisdictions belonging to the common law family, environmental law has primarily used land use controls introduced by public law instruments—for example through environmental permitting, planning control, and the designation of protected areas by public bodies acting under statutory powers. Remodelling property rights to incorporate into the property domain relevant public policy objectives for environmental protection would bridge the gap between notions of private property and the public interest in environmental protection. It would, at the same time, recognize environmental stewardship as a constituent element of the bundle of rights represented by property in land. The balance between private property and public interest is drawn otherwise in some other jurisdictions, for example in the United States where the public trust doctrine attempts to draw the balance differently. Wherever the balance is drawn, however, most legal systems struggle to address the need to clothe duties of environmental stewardship with enforceability through legal controls on environmentally damaging land use. The Whanganui river settlement in New Zealand is an ambitious model that seeks to do this in an innovative manner, and will, if successful, offer an interesting and valuable insight into how property and resource use can be remodelled in the interests of environmental protection.

31.8 Acknowledgements The author is grateful to Ken Palmer and David Grinlinton for references and insights into Maori conceptions of property and their relationship with the Torrens system in New Zealand. Any errors that remain are, of course, the responsibility of the author.

31.9 Select Bibliography Arnold, C. A. ‘The Reconstitution of Property: Property as a Web of Interests’ (2002) 26 Harvard Environmental Law Review 281. Gray, K. and S. F. Gray, ‘Private Property and Public Propriety’ in J.McLean (ed.), Property and the Constitution (Oxford: Hart Publishing, 1999), chapter 2. Lucy, W. N. R. and C. Mitchell, ‘Replacing Private Property: the Case for Stewardship’ (1996) 55 Cambridge Law Journal 566. Raff, M. ‘Environmental Obligations and the Western Liberal Property Concept’ (1998) 22 Melbourne University Law Review 657. Reid, C. T. and W. Nsoh, The Privatisation of Biodiversity (Cheltenham: Edward Elgar, 2016). Rodgers, C. P. ‘Nature’s Place? Property Rights, Property Rules and Environmental Stewardship’ (2009) 68 Cambridge Law Journal 550. Rodgers, C. P. The Law of Nature Conservation: Property, Environment and the Limits of Law (Oxford: Oxford University Press, 2013). Scotford, E. and R. Walsh, ‘The Symbiosis of Property and English Environmental Law: Property Rights in a Public Law Context’ (2013) 76 Modern Law Review 1010. Shakell, A. ‘Ownership Rangatiratanga and Kiatiakitanga: Different Ways of Viewing Land Entitlements in Aotearoa/New Zealand’ 2 Te Tai Haruru/Journal of Maori Legal Writing 82. Wood, M. C. Nature’s Trust: Environmental Law for a New Ecological Age (Cambridge: Cambridge University Press, 2014).

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chapter 32

R egu l atory Orga n iz ation Brian Preston

32.1 Overview: Regulatory Organization in the Modern World

720

32.2 The Legislative Branch of Government as Regulator

722

32.3 The Executive Branch of Government as Regulator

724

32.4 The Judicial Branch of Government as Regulator

729

32.5 The Fourth (Integrity) Branch of Government as Regulator

733

32.6 ‘Third Parties as Surrogate Regulators’

735

32.7 The Regulated as Self-Regulator

743

32.8 Concluding Remarks

746

32.9 Select Bibliography

747

32.3.1 Introduction 32.3.2 Single Versus Multiple Agencies 32.3.3 Integrated Versus Functional Agencies 32.3.4 Concentrated Versus Devolved Systems

724 725 727 728

32.6.1 Environmental NGOs and Community Associations 735 32.6.1.1 Promoting Environmental Regulation 735 32.6.1.2 Formulating Environmental Regulation 736 32.6.1.3 Administering Environmental Regulation 737 32.6.1.4 Enforcing and Shaping Environmental Regulation 737 32.6.2 Specialist ‘Third Party Surrogate Regulators’ 738 32.6.2.1 Insurance Companies 739 32.6.2.2 External Environmental Auditors 740 32.6.2.3 Accredited Environmental Assessors and Development Certifiers740 32.6.2.4 Standards Organizations 742 32.7.1 Introduction 32.7.2 Individuals as Regulators 32.7.3 Enterprises as Regulators

743 743 744

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32.1 Overview: Regulatory Organization in the Modern World Any examination of the institutional organization of environmental regulatory systems requires an understanding of what regulation means. On a narrow interpretation, r egulation refers to the enforcement of rules.1 Regulation is the mosaic of laws, regulations, rules, and instruments imposed and enforced by government and that must be complied with to avoid sanction. In contrast, a broad interpretation expands the meaning of regulation to be the ‘large subset of governance that is about steering the flow of events, as opposed to providing and distributing’.2 At its broadest, regulation is arguably synonymous with governance; simply meaning ‘influencing the flow of events’.3 Broad interpretations of regulation have come to be more widely accepted in the academic literature on regulation and governance. As expressed by Hutter, ‘[c]ontemporaneous with the changing fashions of state regulation has been a broadening conceptualisation of regulation’.4 A broad interpretation of regulation is more analytically useful in a world where many governments have retreated from directly providing services to the public5 and have shifted their regulatory approach to the environment, society, and the economy from that of ‘controlling’ to ‘directing’ change.6 Since the late 1970s, many governments have decided to ‘do less rowing and more steering’7 by, for instance, relying on the market ‘as a regulatory tool’.8 As has been observed in relation to the Australian electricity sector for example, ‘[w]hile electricity supply was, in many cases, a direct state responsibility, now private actors dominate the sector. Their activities are bounded by a legal and regulatory framework that emphasises “government at a distance” ’.9 As governments have begun to row less and steer more, they have also encouraged other actors to share the task of steering: ‘. . . governments nowadays regulate in the knowledge that some of their “steering” function has itself been “outsourced” to, or claimed by’ others.10 There is an increasing range of social and economic activity regulated by NGOs. Non-state 1 C. Parker and J. Braithwaite, ‘What is Regulation?’ in P. Cane and M. Tushnet (eds.), The Oxford Handbook of Legal Studies (Oxford: Oxford University Press, 2003), 119. 2 J. Braithwaite, Regulatory Capitalism: How it Works, Ideas for Making it Work Better (Cheltenham: Edward Elgar, 2008), 1 quoted in A. Kallies, ‘A Barrier for Australia’s Climate Commitments? Law, the Electricity Market and Transitioning the Stationary Electricity Sector (2016) 39(4) UNSW Law Journal 1547, at 1554. 3 Parker and Braithwaite, ‘What is Regulation?’, at 119. 4 B. Hutter, ‘The Role of Non-State Actors in Regulation’ (Centre for Analysis of Risk and Regulation Discussion Paper No. 37, London School of Economics and Political Science, April 2006), 2. 5 Parker and Braithwaite, ‘What is Regulation?’, at 120 and 123; N. Gunningham, ‘Environmental Law, Regulation and Governance: Shifting Architectures’ (2009) 21(2) Journal of Environmental Law 179, 181. 6 R. Macrory, Regulation, Enforcement and Governance in Environmental Law (Oxford: Hart Publishing, 2014), 150–1. 7 Parker and Braithwaite, ‘What is Regulation?’, at 123. 8 Kallies, ‘A Barrier for Australia’s Climate Commitments?’, at 1554. 9 Ibid., at 1553. 10 P. Cane and L. McDonald, Principles of Administrative Law: The Legal Regulation of Governance (South Melbourne: Oxford University Press, 2008), 65.

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regulatory organization 721 actors now have substantially greater capacity to ‘influence the flow of events’ in what Parker and Braithwaite refer to as the ‘new regulatory state’.11 Gunningham has suggested that the regulatory organization of many nation-states today may be best described as ‘regulatory capitalism’, which entails the use of ‘. . . markets as regulatory mechanisms (rather than seeing them as the antithesis of regulation), the growth of a plethora of non-state regulators and of networks of governance, the expansion rather than the retreat of regulation (albeit in new forms) and “hybridity between the privatisation of the public and the publicisation of the private” ’.12 In relation to environmental regulatory systems in particular, Parker and Braithwaite observed: With regulatory functions of the post-Keynesian state, such as environmental protection, we see plural paradigms of ‘smart regulation’ (Gunningham and Grabosky, 1998) that involve energising third party regulators of many different kinds—private insurance companies, environmental NGOs, non-governmental standard-setting agencies such as the British Standards Institution (the originator of ISO 14,000, the global environmental management system standard), industry association self-regulatory schemes such as the international chemical industry’s Responsible Care, hybrid business—NGO international accreditation schemes such as the Forest Stewardship Council, trade unions, even skin-diving networks for monitoring historic shipwrecks! Parker’s (2002) work in The Open Corporation argues that particularly strategic actors in such collaborative networks that steer environmental protection and other regulatory spaces are compliance professionals—environmental managers’13

Nevertheless, despite the emergence of the new regulatory state, traditional executive regulators continue to wield considerable influence in regulating to protect and conserve the environment. Whilst regulation encompasses more than just the rules imposed by government, all regulatory mechanisms relating to the environment ‘operate “in the shadow of the state” ’14 and ‘certain central “steering” functions remain with the state’.15 Indeed, Macrory argues that while ‘government or agencies can no longer simply “command” but need to develop new procedures and more sensitive processes’, environmental regulation should remain ‘the ultimate responsibility of government, rather than of science or economic theory’.16 This is because ‘diminishing the role of regulation or transferring those decisions to other spheres is . . . ultimately a derogation of political responsibility’.17 This chapter adopts a broad interpretation of regulation. It examines traditional regulatory organization in the executive branch of government but recognizes that other branches of government, the legislature, and judiciary, also play an important role in the regulatory system. Similarly, the fourth integrity branch of government, such as ombudsmen and freedom of information commissioners, shapes regulatory organization. The trend

11 Parker and Braithwaite, ‘What is Regulation?’, at 119; See also L. McDonald, ‘The Rule of Law in the “New Regulatory State” ’ (2004) 33 Common Law World Review 197. 12 Gunningham, ‘Environmental Law, Regulation and Governance’, at 209. 13 Parker and Braithwaite, ‘What is Regulation?’, at 126. 14 Gunningham, ‘Environmental Law, Regulation and Governance’, at 181. 15 Ibid., at 207. 16 Macrory, Regulation, Enforcement and Governance in Environmental Law, at 150–1. 17 Ibid., at 151.

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722 brian preston to regulatory pluralism also demands consideration of the roles of ‘the regulated as regulator’ and ‘third parties as surrogate regulators’.18

32.2 The Legislative Branch of Government as Regulator Strictly speaking, the legislative branch of government is not a ‘regulator’ and does not perform environmental regulatory functions. However, the legislature plays a dominant role in shaping the institutional regulatory architecture that governs environmental protection and conservation. First, the legislature, by enacting legislation, establishes (or abolishes) the regulatory institutions, such as public regulators, public/private hybrid regulators, or independent regulators. For example, in Australia, the Clean Energy Regulator—the ‘Government body responsible for accelerating carbon abatement for Australia’19—was established by section 11(1) of the Clean Energy Regulator Act 2011 (Cth). Similarly, in the United Kingdom, Chapter 1 of the Environment Act 1995 (UK) established the Environment Agency, an ‘executive nondepartmental public body’ responsible for ‘regulating major industry and waste, treatment of contaminated land, water quality and resources, fisheries’ and protecting the environment more broadly.20 This capacity to create regulatory institutions is not exclusive; the executive branch of government also creates regulators. Moreover, in federal political systems, this power to establish a regulator to protect and conserve the environment may be primarily held by either the federal or a state legislature (or may be shared). In Australia, for instance, the state and Commonwealth governments have agreed on their respective roles and responsibilities for legislating with respect to the environment.21 Second, the legislature, through the legislation, determines the regulatory functions to be exercised by regulators and how these functions are to be exercised. To continue with the above examples, the functions and powers of the Clean Energy Regulator are conferred by sections 12 and 13 of the Clean Energy Regulator Act 2011 (Cth) and those of the Energy Agency are delineated in Chapter 1 of the Environment Act 1995 (UK). The legislature may also provide statutory guidance on the objectives that a regulator must endeavour to realize in exercising its functions. For example, the principal aim of the Environment Agency in discharging its functions is specified by section 4(1) of the Environment Act 1995 (UK) to be ‘to protect or enhance the environment, taken as a whole,

18 N. Gunningham, M. Phillipson, and P. Grabosky, ‘Harnessing Third Parties as Surrogate Regulators: Achieving Environmental Outcomes by Alternative Means’ (1999) 8 Business Strategy and the Environment 211. 19 Clean Energy Regulator, ‘About’, available at: http://www.cleanenergyregulator.gov.au/About/ Pages/default.aspx. 20 Environment Agency, ‘About’, available at: http://www.gov.uk/government/organizations/ environment-agency/about. 21 See, Council of Australian Governments, Heads of Agreement on Commonwealth and State Roles and Responsibilities for the Environment (1997), available at: http://www.environment.gov.au/resource/ heads-agreement-commonwealth-and-state-roles-and-responsibilities-environment.

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regulatory organization 723 as to make the contribution towards attaining the objective of achieving sustainable development’. Numerous jurisdictions across the world have set the objective of realizing ecologically sustainable development as the conceptual lodestar guiding environmental regulators in discharging their functions.22 Third, the legislature may, in the primary legislation, authorize public office holders or public bodies to make other forms of legislation. This type of legislation, collectively known as delegated legislation, includes regulations, rules, by-laws, and instruments. Delegated legislation is not inferior to primary legislation and can be as effective as the primary legislation.23 Delegated legislation can determine the law or alter the content of the law and directly or indirectly affect a privilege or interest, impose an obligation, create a right, or vary or remove an obligation or right.24 Characteristically, primary legislation sets the framework while delegated legislation makes the detailed provision. The delegated legislation-making bodies, therefore, play a key role in setting the regulatory framework and guiding how the regulators implement and administer the regulatory framework. The l egislature retains ultimate control of this body of delegated legislation by a ‘tabling and disallowance regime’.25 Fourth, the legislature influences the regulatory framework by overseeing and supervising the conduct of regulators. In Westminster systems of government, one of the principal ways in which the legislature supervises executive regulators is by questioning and holding to account the responsible Minister, or an elected representative, of the executive branch of government on the floor of Parliament: ‘. . . the minister must always answer questions and give an account to Parliament for the actions of his [or her] department’.26 Although a member of the executive government is not necessarily obliged to answer questions directed to her or him, it would be difficult to avoid doing so without threatening the stability of the executive government.27 Another important way in which the legislature supervises regulators is through parliamentary oversight committees, such as ‘select or standing committees concerned with the scrutiny of policy and administration’.28 For instance, the Australian Senate resolved in 2014 to establish the Select Committee on Wind Turbines ‘to inquire into and report on the application of regulatory governance and economic impact of wind turbines’.29 There is also 22 See e.g. Protection of the Environment Administration Act 1991 (NSW), s. 6; Environment Protection Authority Act 2011 (NZ), s. 12(2), and Resource Management Act 1991 (NZ), s. 5. 23 D. Pearce and R. Geddes, Statutory Interpretation in Australia (Chatswood: LexisNexis Butterworths, 8th edn. 2014), 2. 24 Legislation Act 2003 (Cth) s 8; D. Pearce and S. Argument, Delegated Legislation in Australia (Chatswood: LexisNexis Butterworths, 4th edn. 2012), 31. 25 See e.g. D. Pearce, ‘Rules, Regulations and Red Tape: Parliamentary Scrutiny of Delegated Legislation’ (Paper presented at the Senate Occasional Lecture Series, Parliament House, 25 June 2004), available at: http://www.aph.gov.au/About_Parliament/Senate/Research_and_Education/pops/~/link. aspx?_id=A82D5061FA5C4BFABD5701538EF7E86B&_z=z.; See ‘Parliamentary Review’ in Pearce and Argument, Delegated Legislation in Australia, at chapter 3, 59–92. 26 Sir Robin Butler quoted in M. Flinders, The Politics of Accountability in the Modern State (London: Ashgate, 2001), 12; G. Griffith, ‘Parliament and Accountability: The Role of Parliamentary Oversight Committees’ (NSW Parliamentary Research Service Briefing Paper No. 12/05, November 2005), 5. 27 Parliament of Australia, ‘Questions’ (Senate Brief Number 12, October 2016), available at: http:// www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Senate_Briefs/Brief12. 28 See, eg, Griffith, ‘Parliament and Accountability’. 29 See Parliament of Australia, ‘Select Committee on Wind Turbines’, at: http://www.aph.gov.au/ Parliamentary_Business/Committees/Senate/Wind_Turbines/Wind_Turbines/Final_Report.

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724 brian preston a Standing Committee on the Environment which reports to the Australian House of Representatives.30 This supervisory role of the legislature may influence how it, or the executive, discharges its responsibility to adapt and maintain components of the jurisdiction’s regulatory architecture. Most directly, a parliamentary committee may recommend that the legislature enact or amend legislation to alter the existing regulatory organization for a given policy area. Alternatively, a parliamentary committee may recommend that the executive government reform regulatory architecture. For example, the executive government acted on the recommendation of the above mentioned Senate Select Committee to create an independent National Wind Farm Commissioner to act as a renewable energy quasi-regulatory entity.31 The efficient and effective exercise of this supervisory function has become more important ‘with the expansion of the modern state and the exponential growth in bureaucratic activity’.32 Indeed, it has been said that ‘Parliament is the centre of the accountability of the public sector and that it is through its accountability to the parliament that the public sector is ultimately accountable to the people’.33 In the modern regulatory state, it is not possible for the legislature to solely ‘ensure accountability across the wide range of activities of central departments, let alone the myriad of other public sector bodies’.34 Rather, according to Tomkins, ‘Parliament should place itself at the apex of . . . [a] pyramid of accountability: it should systematically and rigorously draw on the investigations of outside regulators and commissions’.35 That is to say, ‘Parliament must consciously share the work of accountability with other agencies’, including the integrity branch of government.36

32.3 The Executive Branch of Government as Regulator 32.3.1 Introduction The executive branch of government is normally the dominant force in determining the regulatory architecture and organization of a nation-state. The executive branch of government comprises all of those government agencies and other entities (including public/private 30 Parliament of Australia, ‘Standing Committee on the Environment’, at: http://www.aph.gov.au/ Parliamentary_Business/Committees/House/Environment. 31 See National Wind Farm Commissioner, ‘What We Do’, available at: http://www.nwfc.gov.au/ what-we-do. 32 Griffith, ‘Parliament and Accountability’, at 1. 33 Public Account Committee (Parliament of NSW), ‘The Truth, the Whole Truth and Nothing But the Truth? Annual Reporting in the NSW Public Sector’ (1996) 54 quoted in Griffith, ‘Parliament and Accountability’, at 1. 34 Hansard Society Commission on Parliamentary Scrutiny, The Challenge for Parliament: Making Government Accountable (London: Vacher Dod Publishing Ltd, 2001), 1. 35 A. Tomkins, ‘What is Parliament for?’ in N. Bamforth and P. Leyland (eds.), Public Law in a Multi-Layered Constitution (Oxford: Hart Publishing, 2003), 70 quoted in Griffith, ‘Parliament and Accountability’, at 1. 36 Griffith, ‘Parliament and Accountability’, at 2.

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regulatory organization 725 hybrid entities) that make (under delegated authority from the legislature), implement and enforce environmental regulations. Any meaningful comparison of the myriad ways in which executive regulatory institutions are structured in different jurisdictions across the world would be a Herculean task. Rather, what is undertaken in this section is to outline and compare some of the internationally prevalent types of executive regulator that are entrusted with protecting and conserving the environment: single versus multiple agencies, integrated versus function agencies, and concentrated versus devolved systems.

32.3.2 Single Versus Multiple Agencies In many jurisdictions, the organization of the environmental protection regime is structured around a single regulatory super-agency that has a wide range of functions and is primarily responsible for administering environmental laws and regulations. The most recognizable examples of an environmental super-agency across the world are environmental protection agencies. The United States Environmental Protection Agency (US EPA) is a prominent example of such a (federal) super-agency. It was established ‘to consolidate in one agency a variety of federal research, monitoring, standard-setting and enforcement activities to ensure environmental protection’.37 The US EPA administers, by devising and enforcing regulations, many environmental statutes across a wide variety of policy areas such as, the Clean Water Act 33 USC § 1251, the Energy Policy Act 42 USC § 13201, the National Environmental Policy Act 42 USC § 4321, and the Atomic Energy Act 42 USC § 2011.38 Similarly, the National Environment Agency of Singapore is the primary environmental public regulator in the environmental protection regime and is responsible for administering at least thirteen substantial statutes.39 To provide one further example, the Danish Environmental Protection Authority is the primary national environmental regulator responsible for preparing ‘legislation and guidelines’ across nine policy areas including ‘environmental technology’, ‘industrial permits and inspections’, and ‘soil and waste’.40 The Hong Kong Environmental Protection Department has usefully provided a list of environmental agencies across the world, many of which can be characterized as ‘super-agencies’.41 37 US EPA, ‘EPA History’, at: http://www.epa.gov/history. 38 US EPA, ‘Laws and Executive Orders’, at: http://www.epa.gov/laws-regulations/laws-and-executiveorders. 39 National Environment Agency of Singapore, ‘About the National Environment Agency’, at: http://www.nea.gov.sg/corporate-functions/about-nea/about-the-national-environment-agency; National Environment Agency of Singapore, ‘Legislation’, at: http://www.nea.gov.sg/corporate-functions/aboutnea/legislation. 40 Danish Environmental Protection Agency, ‘Organisation’, at: http://eng.mst.dk/about-the-danish-epa/ organization/; Danish Environmental Protection Agency, ‘Cooperation between environmental authorities’, at: http://eng.mst.dk/about-the-danish-epa/tasks-and-cooperation-between-environmentalauthorities/cooperation-between-environmental-authorities/. 41 Hong Kong Environmental Protection Department, ‘Environment Agencies’, at: http://www.epd. gov.hk/epd/english/links/overseas/link_otherepd_epa.html; see also: Environment Agency (UK), at: http://www.gov.uk/government/organisations/environment-agency; Natural Resources Wales, at: http:// naturalresources.wales/?lang=en; Northern Ireland Environment Agency, at: http://www.daera-ni.gov. uk/northern-ireland-environment-agency; Scottish Environment Protection Agency, at: http://www. sepa.org.uk/.

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726 brian preston In contrast to a super-agency, an environmental regulator may have narrower r esponsibilities relating to a discrete policy area and only administer a small range of statutes. For example, the Australian Great Barrier Reef Marine Park Authority is the regulator charged with protecting the Great Barrier Reef;42 the UK Oil & Gas Authority ‘regulate[s], influence[s] and promote[s] the UK oil and gas industry’43 and the Indian Central Pollution Control Board is ‘entrusted with the powers and functions under the Air (Prevention and Control of Pollution) Act 1981’.44 Many nation-states have a plethora of small executive agencies and other regulatory entities that have narrow regulatory functions relating to a discrete policy area. Theoretically, an environmental regulatory system can fall anywhere along a spectrum that has two contrasting extremes: an environmental regime with a large, executive regulator compared with an environmental regime that has a pluralized and diffuse network of small executive regulators. In reality, very few environmental regulatory systems fall near the extremes. Rather, most nation-states have mixed systems which include both super-agencies and a multitude of small regulatory entities. In Australia, for example, the responsibility for regulating the environment is shared between the Commonwealth government and the state governments.45 At the Commonwealth level, the primary regulatory entity is the Department of the Environment and Energy, which administers approximately fifty-seven statutes (excluding the associated regulations) relating to twenty-five policy areas.46 Yet, at least seven affiliated significant Commonwealth agencies also help to make up the regulatory landscape.47 Using the State of New South Wales as an example of the state regulatory landscape, the primary regulatory entity is the Department of Planning and Environment, which is also responsible for administering a considerable body of legislation and regulations.48 However, under the umbrella of this Department are two significant executive offices (environment and h eritage and local government), the Environment Protection Authority, and various other executive agencies.49 Considered holistically, the Australian regulatory landscape for protecting the environment is, like many nation-states, complicated and features a mix of significant super-regulators and smaller agencies. It is also important to recognize that the organization of environmental regulatory systems in a jurisdiction is fluid and can significantly shift along the single agency versus multiple 42 Great Barrier Reef Marine Park Authority, ‘About Us’, at: http://www.gbrmpa.gov.au/about-us/ message-from-the-chairman; Great Barrier Reef Marine Park Authority, ‘Legislation, regulations and policies’, at: http://www.gbrmpa.gov.au/about-us/legislation-regulations-and-policies. 43 Oil & Gas Authority, ‘What We Do’, at: http://www.ogauthority.co.uk/about-us/what-we-do/. 44 Central Pollution Control Board, ‘Introduction’, at: http://cpcb.nic.in/Introduction.php. 45 See Council of Australian Governments, ‘Heads of Agreement on Commonwealth and State Roles and Responsibilities for the Environment’ (1997) , at: http://www.environment.gov.au/resource/ heads-agreement-commonwealth-and-state-roles-and-responsibilities-environment. 46 Administrative Arrangements Order 2015 (Cth) Pt 7 (‘The Department of the Environment and Energy’). 47 Department of the Environment and Energy, ‘Departmental Structure’, at: http://www.environment. gov.au/about-us/departmental-structure. 48 Administrative Arrangements (Administrative Changes—Public Service Agencies) Order (No. 2) 2015 (NSW); Administrative Arrangements (Administrative of Acts—General) Order 2015 (NSW). 49 Administrative Arrangements (Administrative Changes—Public Service Agencies) Order (No. 2) 2015 (NSW).

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regulatory organization 727 agencies spectrum. For instance, the Chinese environmental protection regime used to feature a primary, ‘low-status’, and under resourced,50 regulator known as the State (National from 1998)51 Environmental Protection Agency, which was charged with giving effect to ‘integrated environmental management’.52 This agency has been replaced with a Ministry of Environ mental Protection.53 Whilst this could be understood as the replacement of one superagency with another central super-regulator, it appears that the Ministry of Environmental Protection is actually an umbrella structure that links a plethora of r egulatory entities with relatively discrete responsibilities. For example, the Chinese environmental management regime includes, under the auspices of the Ministry, a Department of Environmental Impact Assessment and Department of Air Environmental Management.54

32.3.3 Integrated Versus Functional Agencies An overlapping but distinct analytical prism through which to understand the organization of environmental regulatory systems is to consider whether the constituent executive regulators are primarily integrated or functional entities. An integrated environmental regu lator is one which has regulatory responsibilities across a diverse range of environmental policy areas. In contrast, a functional agency will have a narrow range of discrete functions relating to an environmental place, aspects of the environment or aspects of the regulatory process. Of course, if an environmental regulatory system has a primary environmental regulator (the above analytical prism), that regulator is highly likely be an integrated agency. Many of the previously mentioned environmental protection agencies, such as the US EPA and the Australian Department of the Environment and Energy, are integrated agencies. Nonetheless, there is a benefit in using the integrated versus functional prism, where regulatory systems have a plethora of regulators. In this situation, there is likely to be considerable variation between different jurisdictions as to: the proportion of regulators which are integrated versus functional agencies; the nature of the various integrated and functional agencies (i.e. are the functional agencies primarily constituted to carry out functions relating to a place or aspects of the environment or aspects of the regulatory process); and the relationships between integrated and functional agencies. Not all integrated regulators are similar. In fact, there can be very significant differences. For example, although some integrated agencies may have a broad range of regulatory responsibilities, the content or depth of these responsibilities may vary significantly in different policy areas. The NSW Environment Protection Authority (NSW EPA) has responsibilities under, amongst many statutes, both the Forestry Act 2012 and the Protection 50 A. Wang, ‘The Role of Law in Environmental Protection in China: Recent Developments’ (2007) 8 Vermont Journal of Environmental Law 195, at 199. 51 The Environment Encyclopaedia and Directory (London: Europa Publishing, 2001), 229. 52 Ministry of Environmental Protection, ‘History’, at: http://english.sepa.gov.cn/About_SEPA/History: see Wang, ‘The Role of Law in Environmental Protection in China’, at 199 and the sources cited therein; see also X. Wang, Environmental Law in China (The Netherlands: Kluwer Law International, 2012). 53 Ministry of Environmental Protection, ‘History’ The Netherlands, at http://english.sepa.gov.cn/ About_SEPA/History/. 54 Ministry of Environmental Protection, ‘Departments’, at: http://english.sepa.gov.cn/About_SEPA/ Internal_Departments/.

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728 brian preston of the Environment Operations Act 1997. However, the content and depth of the EPA’s role under the latter statute is much more significant than that under the former. For this reason, what might first appear to be an integrated agency may be better described as a functional regulator. Additionally, an integrated agency is likely to have both regulatory and other functions. It is important to properly understand the balance of regulatory to nonregulatory functions exercised by an integrated agency so as to properly compare different regulatory frameworks. There are a wide variety of regulatory entities that share the characteristic of having a narrow range of specialized functions. First, there are those executive regulators whose functions are limited to a particular environmental place or places. For example, the Indian National Ganga River Basin Authority is the regulatory body charged with ensuring the ‘effective abatement of pollution and conservation of the river Ganga’.55 The Metro Manila Bay Development Authority has duties concerning solid waste disposal and management to clean up, rehabilitate, protect and preserve Manila Bay in the Philippines.56 Second, there are those executive regulators which are responsible for regulating a particular aspect of the environment such as wildlife, rivers and lakes or the marine environment. Examples of these types of regulators include the Indian National Biodiversity Authority,57 the Brazilian National Water Agency,58 and the UK Marine Management Organisation.59 Third, the functions of executive regulators may be limited to an aspect of the regulatory process. For instance, the UK Coal Authority is principally ‘responsible for licensing mining in Britain’.60 In order to properly understand an environmental regulatory system, it will normally be important to map out the relevant functional regulatory entities and determine what type of functional regulator they are.

32.3.4 Concentrated Versus Devolved Systems Executive regulators may be situated at different levels in a domestic governance hierarchy. In federal systems, the Constitution will normally provide for the division of regulatory responsibility between the federal executive government, state executive governments, and, possibly, local governments. In unitary systems, although the central government has dominant responsibility, it commonly delegates regulatory functions to sub-national units, such as local governments, to be exercised consonant with the central government’s exercise of responsibility. Whilst the environmental regulatory responsibilities of different layers of government change over time, the division of responsibilities in unitary political systems arguably has 55 National Ganga River Basin Authority, ‘Objectives, Approach and Functions’, at: http://cpcb.nic.in/ ngrba/about.html. 56 See Metro Manila Bay Authority v Concerned Residents of Manila Bay GR Nos 171947–48 (SC, 18 December 2008) and P. Velasco, ‘Manila Bay: A Daunting Challenge in Environmental Rehabilitation and Protection’ (2009) 11 Oregon Review of International Law 441. 57 National Biodiversity Authority, ‘About National Biodiversity Authority’, at: http://nbaindia.org/ content/22/2/1/aboutnba.html. 58 National Water Agency, ‘National Water Agency’, at: http://www2.ana.gov.br/Paginas/EN/default.aspx. 59 Marine Management Organisation, at: http://www.gov.uk/government/organisations/marinemanagement-organisation. 60 Coal Authority, ‘About us’, at: http://www.gov.uk/government/organisations/the-coal-authority/about.

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regulatory organization 729 greater potential to change significantly than in federal systems of government. The reason is that the division of governance power in federal systems is often constitutionally entrenched. Nevertheless, regardless of the political system, the borders of regulatory power between different layers of government are not fixed. In some jurisdictions, the principle of subsidiarity—which has the aim ‘to guarantee a degree of independence for a lower authority in relation to a higher body’—has gained traction.61 For example, in recent years, the UK government has committed to devolving certain regulatory powers, including development approval powers, to local authorities.62 Most environmental regulatory systems will, at any given point in time, fall somewhere on a spectrum between two theoretical extremes: a regulatory structure where the relevant regulators are overwhelmingly concentrated in one tier of government and a devolved regulatory system where regulatory power is substantially shared across each tier of government. The environmental regulatory system in Singapore is an example of a concentrated system. The Singapore regulatory infrastructure effectively comprises the National Ministry of the Environment and Water Resources, the National Parks Board of the Ministry of National Development, and two principal environmental agencies: the National Environment Agency and the National Water Agency (who fall under the Ministry).63 This contrasts starkly with the vertically fractured environmental regulatory system of Australia, which has already been outlined. The examination of an environmental regulatory system should be informed by an assessment of how the system is vertically structured. This is because it is not possible to constructively compare features of different environmental regulatory systems, such as the effectiveness of particular regulatory agencies, unless the context in which that regulator operates is understood. A regulatory approach that has been effective for a regulatory agency operating in a state/provincial tier of government may be wholly ineffective if adopted by a federal regulatory entity. Additionally, the effectiveness of a regulator at a particular level of government may be inextricably linked to its dependence on a regulator at another level in the governance hierarchy.

32.4 The Judicial Branch of Government as Regulator The judiciary supervises regulators, including government regulators and non-government regulators, and the regulated. One of the most significant ways in which the judiciary 61 European Parliament, ‘The Principle of Subsidiarity’ (2016 Factsheet on the European Union), at: http://www.europarl.europa.eu/ftu/pdf/en/FTU_1.2.2.pdf. 62 See e.g. M. Sandford, ‘Devolution to Local Government in England’ (House of Commons Library Briefing Paper No. 07029, 19 July 2016), available at: http://researchbriefings.parliament.uk/ResearchBriefing/ Summary/SN07029. 63 Ministry of the Environment and Water Resources, ‘Our Organisation History’, at: http://www.mewr. gov.sg/about-us/our-organisation/history: see L. Heng Lye, ‘A Fine City in a Garden—Environmental Law and Governance in Singapore’ (2008) Singapore Journal of Legal Studies 68, at 73–8; L. Heng Lye, Environmental Law in Singapore (The Netherlands: Wolters Kluwer, 2013).

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730 brian preston supervises—and thereby shapes—governmental regulatory action and decision-making relating to the environment is through judicial and merits review of legislative and executive action.64 Judicial review involves a review of the legality or validity of legislation and administrative decisions.65 Merits review, in the form of external merits review, involves an appeal against an administrative decision to a person or body, such as a tribunal or court, with the responsibility to re-exercise the power of the original administrative decision-maker. Although the dichotomy between legality (judicial review) and merits (merits review) ‘does not involve a bright line test’ and is ‘porous and ill defined’,66 it is clear that a boundary between the two does exist and it is policed by the courts.67 In exercising its power of judicial review: [t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of an administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.68

Therefore, if a ‘judicial review court’ were to ‘substitute its decision for that of the administrator’ it would not only be ‘illegitimate’, but also ‘politically and managerially foolish’.69 In contrast, a merits review court is required to ‘reconsider the facts, law and policy aspects of the original decision’ and make the ‘correct and preferable decision’.70 In other words, ‘[w]hereas the task of a court exercising judicial review jurisdiction is to police the limits of decision-making power, the task of the [merits review court] is to reconsider decisions’.71 In reviewing the legality of a decision that affects the environment, judicial review courts do not perform any regulatory function or act as ‘regulators’ but do, by ensuring that regulators comply with law, maintain the integrity of regulatory frameworks. However, in

64 The scope of judicial review and merits review is not necessarily limited to administrative decisions of the executive branch of government. In England, the subject matter of administrative law is the supervision ‘of public functions, whether by government or non-government organisations’: Cane and McDonald, Principles of Administrative Law, at 3. 65 Chief Constable of North Wales Police v Evans [1982] 3 All ER 141, 155 cited in Cane and McDonald, Principles of Administrative Law, at 47. 66 J. Spigelman, ‘The Integrity Branch of Government’ (2004) 78 Australian Law Journal 724, at 732; see e.g. P. Cane, ‘Merits Review and Judicial Review—The AAT as a Trojan Horse’ (2000) 28 Federal Law Review 213 and the discussion in Cane and McDonald, Principles of Administrative Law, at 48–51. 67 B. J. Preston, ‘The Role of Courts in relation to Adaptation to Climate Change’ in T. Bonyhady, A. Macintosh, and J. McDonald (eds.), Adaption to Climate Change: Law and Policy (Sydney: Federation Press, 2010), 161; see the discussion in M. Aronson and M. Groves, Judicial Review of Administrative Action (Sydney: Lawbook Co, 5th edn. 2013), 161–71. 68 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40–1 and Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35–6. 69 Aronson and Groves, Judicial Review of Administrative Action, at162; Preston, ‘The Role of Courts in Relation to Adaptation to Climate Change’, at 161. 70 Drake v Minister for Immigration and Ethnic Affairs (No 1) (1979) 24 ALR 577, 589; Administrative Review Council, ‘What Decisions Should be Subject to Merit Review?’ (Administrative Review Council Report, 1999). 71 Cane and McDonald, Principles of Administrative Law, at 236.

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regulatory organization 731 reviewing the merits of a decision that affects the environment, merits review courts do perform regulatory functions and, in so doing, act as ‘regulators’. The ‘normative function’ and objective of merits review is to improve the quality of administrative decision-making and, therefore, the effectiveness of regulatory regimes.72 According to Cane and McDonald, ‘there is a widespread view that merits review . . . [has] had a beneficial effect on the quality of administrative decision-making’ because it has encouraged those exercising public regulatory functions to improve their performance and has allowed courts and tribunals to lead by example in making administrative decisions.73 Merits review can provide a forum for full and open consideration of issues of major importance; increase accountability of decision-makers in the executive branch; clarify the meaning of legislation made by the legislative branch; ensure adherence to legislative principles and objects; focus attention on the accuracy and quality of policy documents, guidelines, and instruments made by the executive branch; and highlight problems that should be addressed by law reform.74 One way in which merits review courts have improved environmental and planning regulatory regimes has been by promoting the proper consideration by regulators of the impacts that climate change might have on a proposed development. For instance, in Newton v Great Lakes Shire Council, the Land and Environment Court of New South Wales approved a new residential development subject to conditions requiring stricter construction standards to ensure that the building structure was adequately designed for projected sea-level rise due to climate change.75 Similarly, although with a different result, the Environment, Resources and Development Court of South Australia reversed the determination of a local authority approving a proposed coastal land subdivision on the basis that it failed ‘to make adequate provision for the inland retreat’ caused by climate change induced rising sea levels.76 Merits review courts have also improved environmental and planning regulatory regimes by, for example, providing a normative model of decision-making that demonstrates how regulators should apply the principles of ecologically sustainable development. Courts by their decisions have demonstrated how to make regulatory decisions that improve the total quality of life both now and in the future, in a way that maintains the ecological processes upon which life depends. For instance, courts, in hearing merits review appeals, have explicated and applied in practice the precautionary principle77 and the principle of intergenerational equity.78

72 Ibid., at 247. 73 Ibid. 74 B. J. Preston, ‘Leadership by the Courts in Achieving Sustainability’ (2010) 27 Environmental and Planning Law Journal 321, at 327. 75 Newton v Great Lakes Shire Council [2013] NSWLEC 1248. 76 Northcape Properties Pty Ltd v District Council of Yorke Peninsula [2007] SAERDC 50 (upheld on appeal: [2008] SASC 57); see also Gippsland Coastal Board v South Gippsland Shire Council (No 2) [2008] VCAT 1545; Myers v South Gippsland Shire Council (No 1) [2009] VCAT 1022 and (No 2) [2009] VCAT 2414; and Rainbow Shores Pty Ltd v Gympie Regional Council [2013] QPEC 26. 77 See e.g. Telstra Corp Ltd v Hornsby Shire Council (2006) 67 NSWLR 250 and Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council (2010) 210 LGERA 126. 78 See e.g. Hub Action Group Inc v Minister for Planning (2008) 161 LGERA 136 and Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure (2013) 194 LGERA 347.

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732 brian preston In contrast to the narrow merits review function of remaking a regulatory decision, courts in some nation-states have gone further to devise regulatory measures to protect and conserve the environment and have ordered that these measures be implemented. One area in which courts have done so relates to air pollution actions. Courts in Asia have devised and ordered the implementation of air pollution regulatory measures to redress proven violations by the executive government of environmental and public health related constitutional rights. The Supreme Court of India,79 the Supreme Court of Bangladesh,80 the Supreme Court of Nepal,81 and other courts82 have made orders to this effect in constitutional law proceedings. An example is the long running proceedings of M.C. Mehta v Union of India where the Supreme Court of India has devised various air pollution mitigation measures to redress violations of public health and environmental constitutional rights.83 The Court has ordered that diesel buses operating in Delhi be converted from diesel to cleaner natural gas;84 that green taxes and toll based measures by imposed to stop diesel trucks from entering, rather than bypassing, Delhi;85 that all taxis in the National Capital Region be converted to natural gas;86 and, most recently, that it is a precondition for registration of luxury diesel cars with a capacity of 2000 cc or greater in Delhi that the owner pays a ‘environment protection charge’ of 1 per cent of the ex-showroom price of the vehicle.87 In addition to directly regulating to protect the environment, courts in some nationstates have indirectly regulated by establishing a non-judicial regulatory body. A recent example of this approach is Asghar Leghari v Federation of Pakistan.88 The petitioner submitted to the Lahore High Court that the failure of the Pakistan government to implement its key climate change policies contravened his ‘right to life [including] the right to a healthy and clean environment’ and ‘right to human dignity’, as embodied in the constitutional principles of social and economic justice and various international environmental principles.89 The Court held that the ‘delay and lethargy of the State in implementing [the climate change policies] offends the fundamental rights of the citizens’.90 To redress this, the Court established a Climate Change Commission, comprised of twenty-one members from various Ministries and Departments, to examine and report on how these climate change policies could be effectively implemented.91 The Commission furnished its report to the Court and the Court, to give effect to the recommendations of the Commission, ordered the Government to implement various policy ‘priority items’, ‘allocate a budget for climate change’ action in 79 M.C. Mehta v Union of India—Supreme Court of India (Writ Petition No. 13029 of 1985). 80 Farooque v Government of Bangladesh (2002) 22 BLD 345 Supreme Court of Bangladesh. 81 Prakash Mani Sharma v HMG Cabinet Secretariat (2007) Supreme Court of Nepal (WN 3027 of ‘2059’). 82 See e.g. Smoke Affected Residents Forum v Municipal Corporation of Greater Mumbai (2002) Bombay High Court (WP No 1762 of 1999); Vardhaman Kaushik v Union of India—National Green Tribunal of India—(Original Application No 21 of 2014) and Mansoor Ali Shah v Government of Punjab (2007) CLD 533 Lahore High Court. 83 M.C. Mehta v Union of India—Supreme Court of India (Writ Petition No. 13029 of 1985). 84 Ibid., 5 April 2002. 85 Ibid., 16 December 2015. 86 Ibid., 5 January 2016. 87 Ibid., 12 August 2016. 88 Asghar Leghari v Federation of Pakistan, Lahore High Court (WP No. 25501 of 2015), 31.8.2015, 4.9.2015, 14.9.2015, 5.10.2015, 18.11.2015, 7.12.2015, 18.1.2016, 29.2.2016 and 29.3.2016. 89 Ibid., 4.9.2015 at [7] and 14.9.2015 at [4]. 90 Ibid., 4.9.2015 at [8]. 91 Ibid., 14.9.2015 at [11].

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regulatory organization 733 consultation with the Commission92 and prepare reports on how it intended to implement two water related ‘priority items’.93 Other courts in Pakistan,94 India,95 and the Philippines96 have similarly established or ordered the establishment of regulatory bodies to carry out court orders so as to implement environmental laws and policies. The courts can also exercise legislative functions by delegation from the legislative branch of government. Courts can make rules of court (a form of delegated legislation) regulating the practice and procedure for the hearing and determination of disputes. Courts devise rules of court to achieve desired regulatory objectives, such as the just, quick and cheap resolution of proceedings and the facilitation of access to justice. A major task of the courts is to protect and uphold the rule of law. Upholding the rule of law involves upholding laws, properly made and within power, that encourage sustainable development. In this way, courts ensure good governance, which is itself a principle of good governance.97 The courts may also uphold and enforce laws that provide for access to justice, including access to environmental justice, and sustainable development.98

32.5 The Fourth (Integrity) Branch of Government as Regulator The fourth or integrity branch of government is not a separate branch of government in most nation-states. Rather, it encompasses a ‘spectrum of integrity bodies’99 (including ‘the three recognised branches of government’100) and institutions such as AuditorsGeneral, ombudsmen, ‘administrative tribunals, independent crime commissions, military disciplinary bodies, inspectors-general of taxation and of security intelligence, and a plethora of commissioners—dealing with privacy information access, human rights and 92 Ibid., 18.1.2016 at [4]–[5]. 93 Ibid., 29.3.2016. 94 See e.g. Mansoor Ali Shah v Government of Punjab (2007) CLD 533 (Lahore High Court established a commission to report on how to address vehicular pollution). 95 See e.g. Vellore Citizens Welfare Forum v Union of India (the Vellore tanneries case) (1996) 5 SCC 647 (the Supreme Court of India ordered the government to constitute an authority under environmental legislation to deal with the environmental and social harm caused by the tanneries); M.C. Mehta v Union of India (Calcutta tanneries case) (1997) 2 SCC 388 (the Supreme Court of India established a committee to investigate and recommend action to remedy the environmental and social harm caused by the tanneries). 96 Metropolitan Manila Bay Development Authority v Concerned Residents of Manila Bay GR No. 171947–48, 18 December 2008 (the Supreme Court of the Philippines established an advisory committee to monitor and oversee the enforcement of the continuing mandamus to clean up Manila Bay). 97 Hub Action Group Inc v Minister for Planning (2008) 161 LGERA 136, [2] and [69]. 98 See Principle 10 of the Rio Declaration on Environment and Development and the Recitals and Arts. 3 and 9 UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, done at Aarhus, Denmark on 25 June 1998 (entered into force on 30 October 2011). 99 R. Creyke, ‘An ‘Integrity’ Branch’ (2012) 70 Australian Institute of Administrative Law Forum 33, at 38. 100 J. Spigelman, ‘Institutional Integrity and Public Law’ (An address to the judges of Hong Kong, Hong Kong, 30 October 2014), 6.

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734 brian preston anti-discrimination, and public service standards’.101 What binds this group of entities together as a branch of government is their common objective of ensuring the integrity of governance. In particular, the purpose of the integrity branch of governance is to ‘ensure that each governmental institution exercises the powers conferred on it lawfully’ and operates faithfully to ‘the public values, including procedural values, which the particular polity expects it to obey’.102 It is in the realization of the latter aspect that the integrity branch of government has significantly shaped the regulatory organization of environmental and planning law regimes. The integrity branch of government has effected procedural reforms that have made such regimes more transparent and, therefore, increased the power of third party surrogate regulators. Anti-corruption bodies, such as the Independent Commission Against Corruption in New South Wales, have investigated corrupt conduct in the administration of e nvironmental and planning law systems and recommended reform to reduce the frequency of corruption.103 One of the most significant recent developments in international and domestic environmental law has been the increasing recognition of the need to improve the integrity of environmental regulatory systems. For instance, the Aarhus Convention emphasizes that the efficacy of environmental regulatory systems depends upon implementing procedural reforms that ensure adequate access to environmental information.104 As the Aarhus Convention recognizes, this requires that legislation and regulations are introduced to compel government to both release environmental information when requested and to actively collect and disseminate environmental information.105 The introduction and strengthening of freedom of information legislation,106 right to know laws,107 and procedural requirements to prepare and publicly exhibit environmental impact assessments108 has undoubtedly strengthened environmental regulatory systems. The resulting access to environmental information helps to hold governmental environmental regulators to account and improves the ability of regulators and others to enforce and shape environmental laws and r egulations. For instance, the public disclosure of licences that authorize a regulated operator to pollute109 assists the public to determine whether a regulated operator is complying with its licence. 101 Creyke, ‘An “Integrity” Branch’, at 36 citing J. McMillan, ‘The Ombudsman and the Rule of Law’ (2005) 44 Australian Institute of Administrative Law Forum 1, at 11–12. 102 Spigelman, ‘Institutional Integrity and Public Law’, at 6; Spigelman, ‘The Integrity Branch of Government’, at 724. 103 See e.g. Independent Commission Against Corruption, Anti-Corruption Safeguards and the NSW Planning System, ICAC Report February 2012, available at: http://www.icac.nsw.gov.au/documents/ preventing-corruption/cp-publications-guidelines/3867-anti-corruption-safeguards-and-the-nsw-planning-system-2012/file. 104 Aarhus Convention, opened for signature 28 June 1998, 2161 UNTS 447 (entered into force 30 October 2001). 105 Articles 4 and 5 Aarhus Convention. 106 See e.g. Government Information (Public Access) Act 2009 (NSW); Freedom of Information Act 1982 (Cth); Freedom of Information Act 5 USC § 552 (1966). 107 See e.g. NSW Environment Protection Authority, ‘Public registers’ (18 November 2015), at: http:// www.epa.nsw.gov.au/publicregister/ and UK Environment Agency, ‘What do the Public Registers Cover?’ (April 2016), at: http://epr.environment-agency.gov.uk/ePRInternet/Info.aspx. 108 See e.g. Environmental Planning and Assessment Regulation 2000 (NSW), cl. 85B. 109 See e.g. the NSW Protection of the Environment Operation Act Public Register, at: http://www. epa.nsw.gov.au/prpoeo/index.htm.

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regulatory organization 735 Additionally, such disclosure immunizes regulators from regulatory capture by increasing scrutiny of the decision-making of regulators. Moreover, albeit to a lesser extent, other integrity related regulatory measures such as whistle blower protection legislation, anticorruption legislation, and increasingly onerous government transparency obligations have strengthened environmental regulatory systems.

32.6 ‘Third Parties as Surrogate Regulators’110 32.6.1 Environmental NGOs and Community Associations In modern regulatory states, environmental NGOs have emerged as increasingly important surrogate regulators as ‘government regulators have been losing both their power and resources’.111 Similarly, community associations have become increasingly adept at using a diverse range of methods to, for example, ‘shape public opinion, to lobby governments and to pressure them to enact and enforce tougher environmental laws and regulations’.112 Indeed, the collective action of environmental NGOs and community associations to protect the environment has become so significant that it has been considered by some to constitute a new body of ‘civil regulation’.113 In this section, the role of NGOs and community associations as surrogate regulators is examined by dissecting the regulatory role of these organizations into four primary functions: promoting, formulating, administering, and enforcing environmental laws and regulations.

32.6.1.1 Promoting Environmental Regulation Most jurisdictions have developed a substantial body of environmental legislation and regulation that is subject to periodic reform. It is a formidable task for government to successfully communicate this body of environmental regulation to the regulated and the public at large. Yet, for environmental regulation to be effective, it is necessary that the regulated and the public sufficiently understand what environmental regulation requires and how it operates. The promotion of environment regulation is a critical regulatory function and must be discharged effectively for an environmental law regime to be functional. NGOs and community associations can significantly assist governments in promoting environmental regulation. For instance, environmental legal centres and associations—such as the Environmental Defenders Offices (Australia), ClientEarth (UK), Earthjustice (United States), and the Bangladesh Environmental Lawyers Association—actively promote environmental regulation through maintaining advice telephone lines, conducting community law seminars, and publishing environmental law guides for the community. Non-legal organizations, such as national (heritage) trusts and wildlife protection associations, can also play an important role in disseminating information about e nvironmental regulation. 110 Gunningham, Phillipson, and Grabosky, ‘Harnessing Third Parties as Surrogate Regulators’. 111 Gunningham, ‘Environmental Law, Regulation and Governance’, at 196. 112 Ibid. 113 Ibid., at 197.

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736 brian preston Governments can assist NGOs and community associations to promote environmental regulation by, for example, offering direct and indirect financial support and by collaborating with these associations.

32.6.1.2 Formulating Environmental Regulation NGOs and community associations have become active participants in the process of creating new, and reforming existing, environmental laws and regulations. In many jurisdictions, the executive and legislative branches of government now routinely invite public submissions on environmental law issues ranging from the environmental impacts of a particular development project114 through to commenting upon proposed reforms to existing law.115 In routinely lodging detailed and well-researched submissions on such issues, many NGOs and community associations help to formulate environmental regulation and, in so doing, can be considered to act as surrogate regulators. NGOs may also contribute to the formulation of environmental regulation if their views are sought out by government at a preliminary stage of law reform through informal consultation. Conversely, well-resourced NGOs may be influential in formulating environmental regulation despite not being invited by government to do so. As Gunningham has noted, NGOs ‘have become increasingly sophisticated at communicating their message . . . to shape public opinion, to lobby government and to pressure them to enact and enforce tougher environmental laws and regulations’.116 In addition to directly influencing the formulation of government promulgated environmental regulation, NGOs may develop their own private regulatory frameworks to manage environmental issues. For instance, there are now many organizations which have developed the capacity to regulate enterprises by certifying or accrediting the environmental sustainability and social responsibility of enterprises if a certain standard of environmental performance is met. For example, the Aquaculture Stewardship Council (an independent not-for profit organization founded by the World Wildlife Fund) has developed a ‘third party certification system’ comprising seven environmental accreditation standards for aquaculture enterprises, which it claims is ‘robust, credible and meets best practice guidelines’.117 If an enterprise satisfies the relevant standard, such as the ASC Salmon Standard,118 it is eligible to be accredited and use this accreditation for marketing purposes. However, it should be noted that the stringency of such standards and transparency of accreditation agreements has come under scrutiny.119 Over time, if a private regulatory standard gains sufficient traction across an industry, it may effectively supplant government regimes or 114 See e.g. NSW government, ‘Major Projects: Making a Submission’, available at: http://www. planningportal.nsw.gov.au/understanding-planning/major-projects. 115 See e.g.NSW government, ‘Have Your Say on NSW Environment and Heritage’, available at: https://engage.environment.nsw.gov.au/consult. 116 N. Gunningham and C. Holley, Bringing the ‘R’ Word Back: Regulation, Environment Protection and NRM (3/2010, Academy of the Social Sciences in Australia), 8. 117 Aquaculture Stewardship Council, ‘Get Certified!’, at: http://www.asc-aqua.org/index.cfm?act=tekst. item&iid=365&lng=1; Aquaculture Stewardship Council, ‘The ASC Standards’, at: http://www.asc-aqua. org/index.cfm?act=tekst.item&iid=365&iids=610&lng=1. 118 Aquaculture Stewardship Council, ‘The ASC Standards’, at http://www.asc-aqua.org/index. cfm?act=tekst.item&iid=365&iids=610&lng=1. 119 C. Meldrum-Hanna, J. Balendra, and A. McDonald, ‘Big Fish’ (ABC Four Corners, 31 October 2016), available at: http://www.abc.net.au/4corners/stories/2016/10/31/4564542.htm.

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regulatory organization 737 may shape the development of such regimes. An example of a prominent private regulatory regime is the Forest Stewardship Council certification, which is marketed as ensuring that certified forestry operators ‘comply with the highest social and environmental standards on the market’ and covers 191,773,307 ha of land across eighty-two countries.120

32.6.1.3 Administering Environmental Regulation Governments may enlist the cooperation of NGOs and community associations to help improve the administration of environmental regulation and realize ecologically sustainable development. For instance, Article 27(10) of Agenda 21, the programme of action for sustainable development, encourages governments to take measures ‘to facilitate non- governmental coordination in implementing national policies at the programme level’ and ‘involve non-governmental organisations in national mechanisms or procedures established to carry out Agenda 21’.121 Whilst the nature of the relationship between NGOs and governments and enterprises has ‘moved from a posture of confrontation and adversarial relations . . . to one characterised by professionalism and cooperation’,122 it remains relatively rare for governments to grant NGOs the power to directly administer government promulgated environmental legislation and regulations. Two NGOs that do ‘fulfil a range of executive responsibilities’ relating to the environment are the National Trust (UK) and the Royal Society for the Protection of Birds (UK).123 These organizations both ‘own and manage large areas of protected land’.124 The former is charged with conserving the ‘775 miles of coastline [and] over 248,000 hectares of land’ that comprises the property of the National Trust.125 As has been identified, NGOs play a more significant role in administering private environmental management codes and other forms of private regulation.

32.6.1.4 Enforcing and Shaping Environmental Regulation The section discussing the regulatory role of the judiciary explained that courts can act as a regulator in reviewing the merits of governmental decision-making and by ordering regulatory measures to be undertaken to redress violations of constitutional rights. It must be remembered, however, that the judiciary is a reactive environmental regulator. Normally, the courts will only be able to regulate with respect to the environment if a party brings a cause of action and succeeds in persuading the court that it should make

120 Forest Stewardship Council, ‘Facts and Figures’ (7 October 2016), at: https://ic.fsc.org/preview. facts-figures-october-2016.a-6344.pdf. 121 Report of the United Nations Conference on Environment and Development, Agenda 21, UN Doc A/CONF.151/26 (Vol 1) (12 August 1992) annex II, at: https://sustainabledevelopment.un.org/content/ documents/Agenda21.pdf. 122 M. E. Kraft, ‘Influence of American NGOs on Environmental Decisions and Policies: Evolution over Three Decades’ in The Role of Environmental NGOs: Russian Challenges, American Lessons: Proceedings of a Workshop (Washington D.C.: National Academy Press, 2001), 142. 123 B. Cullingworth et al., Town and Country Planning in the UK (London and New York: Routledge, 15th edn. 2015), 256. 124 Ibid. 125 National Trust (UK), ‘About the National Trust’, at: http://www.nationaltrust.org.uk/features/ about-the-national-trust.

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738 brian preston decisions and orders.126 NGOs and community associations play a significant role in enforcing and shaping environmental regulation by commencing appropriate environmental public interest proceedings.127 Much public interest, climate change litigation is brought by NGOs and community associations. For instance, the environmental organization, Our Children’s Trust has been prominent in bringing public interest proceedings in the United States against various governments founded on the public trust doctrine.128 Similarly, environmental legal centres, such as the Environmental Defenders Offices in Australia, have acted on behalf of NGOs and community associations bringing public interest, environmental litigation.129 In addition to directly commencing proceedings to enforce environmental laws and regulations, NGOs and community associations can also help to enforce environmental regulation by persuading governmental regulators to take action against suspected contraventions of the law and by assisting or lobbying governments to develop or maintain sufficient capacity to robustly enforce environmental laws. For instance, the International Fund for Animal Welfare has attempted to improve the enforcement of laws prohibiting poaching of elephants, tigers, and other animals by collaborating with governments to properly train rangers and custom officers.130

32.6.2 Specialist ‘Third Party Surrogate Regulators’131 In some jurisdictions, the legislative and executive branches of government have conferred certain regulatory functions and powers under environmental and planning legislation, once exclusively held by government officers, upon specialist non-government p rofessionals and entities. The underlying rationale for this shift is explained by Gunningham, Phillipson, and Grabowsky: If successful, the use of . . . third parties as surrogate regulators would have considerable enefits. It would take the weight off government regulation. It would provide more effective b social control in at least some circumstances, and gain more social acceptance from regulated groups. Moreover it would provide more flexibility at less cost than conventional regulation.132

126 Although, some courts, particularly in South Asia, do act suo moto, such as the Indian Supreme Court more recently in M.C. Mehta v Union of India—Supreme Court of India (Writ Petition No. 13029 of 1985). 127 B. J. Preston, ‘The Role of Public Interest Environmental Litigation’ (2006) 23 Environmental & Planning Law Journal 337 and B. J. Preston, ‘The Influence of Climate Change Litigation on Governments and the Private Sector’ (2011) 2 Climate Law 485. Interestingly, Riley argues that the move to ‘smart regulation’ and regulatory pluralism has undermined the success of public interest litigation: S. Riley, ‘From Smart to Unsmart Regulation: Undermining the Success of Public Interest Litigation’ (2017) 34 Environmental & Planning Law Journal 299. 128 See Our Children’s Trust, at: http://www.ourchildrenstrust.org/us/federal-lawsuit. 129 See Environmental Defenders Office NSW, at: http://www.edonsw.org.au. 130 International Fund for Animal Welfare, ‘Wildlife Conservation’, at: http://www.ifaw.org/australia/ our-work/conservation/stopping-wildlife-poaching-trafficking-and-demand. 131 Gunningham, Phillipson, and Grabosky, ‘Harnessing Third Parties as Surrogate Regulators’. 132 Gunningham, Phillipson, and Grabosky, ‘Harnessing Third Parties as Surrogate Regulators’, at 212.

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regulatory organization 739 In particular, this transfer of regulatory responsibilities has resulted in the increased reliance by some governments on, for example, third party insurance companies, external auditors, accredited assessors and certifiers, and standards organizations as surrogate e nvironmental regulators.

32.6.2.1 Insurance Companies Environmental insurance has become a ‘powerful policy tool’ and an effective mechanism for protecting the environment.133 As Gunningham, Phillipson, and Grabosky observed: ‘insurers now subject their policyholders to scrutiny beyond that which government authorities can bring to bear and may well hold their policyholders to standards well in excess of that which regulators are in a position to require’.134 Hutter has argued that insurance is a ‘technology of governance beyond the state’ because insurance companies can ‘link standard setting with behaviour modification through pricing mechanisms’.135 For instance, an insurance company can modify the behaviour of factories by offering lower premiums to factory operators who develop a robust pollution event management plan. Moreover, it has been claimed that insurance companies are more agile and innovative than government regulators in managing the environmental risks of certain activities.136 For these reasons, states have increasingly sought to ‘strategically and judiciously commandeer’ insurance companies as surrogate regulators.137 One way in which a regulatory role for insurance companies can be fostered is by governments granting environment protection licences (which permit activities with the potential to harm the environment to be carried out) on the condition that the holder of the licence obtain insurance cover. Under section 72 of the Protection of the Environment Operations Act 1997 (NSW), for example, the NSW EPA is empowered to impose a condition on an environment protection licence requiring the holder of the licence ‘to take out and maintain a policy of insurance for the payment of costs for clean-up action, and for claims for compensation of damages’. Such a condition not only fosters a regulatory role for insurance companies but also gives effect to the polluter pays principle (‘that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement’).138 Insurance companies can play an important role in driving climate change adaptation. Insurance companies’ business involves assessing risks, including risks posed by climate change. Insurers use predictive models and data to ascertain how climate change risks are likely to change. In response, insurers adapt their insurance offerings but also advocate for climate change adaptation action. Insurers may withdraw from markets at high risk of coastal or floodplain hazards. This may influence planning law and policy and discourage new development in these high risk areas. Bell gives the example of the role insurers played in ensuring flood mitigation works were put in place in the flood prone towns of Roma and

133 Ibid., at 217. 134 Ibid., at 218. 135 Hutter, ‘The Role of Non-State Actors in Regulation’, at 4. 136 See B. Richardson, ‘Mandating Environmental Liability Insurance’ (2002) 12 Duke Environmental Law & Policy Forum 293, at 297. 137 Gunningham, Phillipson, and Grabosky, ‘Harnessing Third Parties as Surrogate Regulators’, at 222. 138 Protection of the Environment Administration Act 1991 (NSW), s. 6(2)(d)(i).

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740 brian preston Emerald in Queensland, Australia.139 Insurers may also restrict insurance for houses lacking protective measures or built to inadequate standards. Again, this may influence building law and policy as well as individual home owner behaviour.

32.6.2.2 External Environmental Auditors Third party environmental auditors have come to share the regulatory responsibility of government for monitoring and assessing the environmental performance of regulated operators. The proper exercise of these functions is essential to the effectiveness of the environmental regulatory system. If the regulator and/or the regulated are ignorant as to whether the regulated is complying with environmental legal requirements, effective regulation is highly unlikely. Thus, the NSW EPA is legally empowered to order a regulated operator to commission an accredited external environmental auditor to assess compliance with applicable environmental requirements.140 Government regulators are likely to make such an order ‘in circumstances where serious environmental breaches are detected’.141 Courts may also have power to order environmental audits in sentencing offenders who have committed environmental offences. In NSW, for example, a sentencing court may order an offender ‘to carry out a specified environmental audit of activities carried on by the offender’.142 The environment auditor thereby plays a regulatory role. Governments can encourage regulated operators to voluntarily use external auditors to assess their compliance and make recommendations as to how the regulated operator can more effectively self-regulate its activities. In particular, the effective voluntary use of external auditors may ‘reduce exposure to litigation and criminal penalties . . . improve risk management, operating performance and planning . . . reduce costs’ and allow the achievement of ‘environmental goals more efficiently and with less application of government resources’.143 For example, the Protection of the Environment Operations Act 1997 (NSW) encourages the undertaking of voluntary environmental audits by providing that the documents prepared in conducting such an audit are protected from being used by government regulators ‘for any purpose connected with the administration or enforcement of the environment protection legislation’.144 Provision is also made under contaminated land legislation for site audits, both as a requirement under the statute as well as under a voluntary management proposal. The site audits are undertaken by accredited site auditors.145

32.6.2.3 Accredited Environmental Assessors and Development Certifiers The trend towards incorporating new market-based regulatory mechanisms and development codes into environmental and planning law regimes has also witnessed an increasing 139 J. Bell, Climate Change and Coastal Development Law in Australia (Sydney: Federation Press, 2014), chapter 9, 221–55. 140 Protection of the Environment Operations Act 1997 (NSW), s. 175. 141 NSW EPA, ‘EPA proposes Mandatory Environmental Audit for Truegain at Rutherford’, available at: http://www.epa.nsw.gov.au/epamedia/EPAMedia16030402.htm. 142 Protection of the Environment Operations Act 1997 (NSW), s. 250(1)(d). 143 Gunningham, Phillipson, and Grabosky, ‘Harnessing Third Parties as Surrogate Regulators’, at 218. 144 Protection of the Environment Operations Act 1997 (NSW) Pt 6.3. 145 Contaminated Land Management Act 1997 (NSW) Pt 4.

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regulatory organization 741 transference of some regulatory power from government officers to accredited specialists. In traditional planning law regimes, governmental regulators have exclusively exercised the regulatory function of determining whether or not to approve development applications. However, more recently, the introduction of development codes with ‘predetermined development standards’,146 which are designed to streamline the development application process, have been accompanied by legislative amendments empowering third party accredited certifiers to assess and determine code-based development applications.147 Private certifiers are also empowered to issue various certificates, after development consent has been granted, authorizing construction, subdivision, or occupation.148 Whilst the discretion of such certifiers in determining applications is significantly constrained by law,149 in exercising this function, third party certifiers have become significant surrogate regulators. The introduction of market-based mechanisms into environmental and planning law regimes has also given rise to the parallel introduction of third party specialists to assist in administering these mechanisms. An increasingly prevalent mechanism that demonstrates this is biodiversity offsetting and ‘biobanking’ mechanisms.150 In essence, such mechanisms are predicated on the foundation that, in certain circumstances and consistently with the mitigation hierarchy, it is appropriate to permit development that causes residual environmental harm on the condition that this environmental harm is compensated for—offset— by either directly or indirectly undertaking actions that result in measurable conservation gains. In this context, a market mechanism—such as, for example, the NSW biobanking scheme—operates by first creating a pool of biodiversity stewardship sites to generate registered biodiversity credits.151 Once these credits are created, owners of credits are able to transfer credits on the market to those seeking to offset certain environmental impacts of a development.152 The operation of the biodiversity offsets scheme depends on various assessments by an accredited person (likely to be an ecologist) in accordance with a prescribed biodiversity assessment method.153 There is a scheme for accreditation of persons to undertake the required biodiversity assessments.154 The accredited person prepares, as appropriate, a biodiversity stewardship site assessment report, biodiversity development assessment report, or biodiversity certification assessment report.155 In exercising these functions, the accredited persons are integral in administering the regulatory scheme. Although the introduction of surrogate regulators in these respects is relatively recent, the exercise of environmental and heritage impact assessment regulatory functions by third parties, under environmental and heritage impact assessment legislation, has a long history.156 In many jurisdictions, an environmental impact statement for a proposed development, 146 This phrase is taken from R. Lyster et al., Environmental & Planning Law in New South Wales (Annandale: Federation Press, 3rd edn. 2012), 68–9. 147 See e.g. Environmental Planning and Assessment Act 1979 (NSW), s. 85A. 148 See e.g. ibid., Pt 4A and Environmental Planning and Assessment Regulation 2000 Pt 8. 149 See e.g. Environmental Planning and Assessment Act 1979 (NSW), s. 85A(3). 150 See e.g. Biodiversity Conservation Act 2016 (2016) Pt 6; see B. J. Preston, ‘Biodiversity Offsets: Adequacy and Efficacy in Theory and Practice’ (2016) 33 Environmental and Planning Law Journal 93. 151 Biodiversity Conservation Act 2016 (NSW) Div 4 of Pt 6, s. 6.17. 152 Ibid., Div 4 of Pt 6, s. 6.19. 153 Ibid., Div 2 and 3 of Pt 6. 154 Ibid., s. 6.10. 155 Ibid., ss. 6.11, 6.12, and 6.13. 156 See e.g. B. Preston, ‘Adequacy of Environmental Impact Statements in New South Wales’ (1986) 3 Environmental & Planning Law Journal 224.

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742 brian preston if required, will often be undertaken by private experts engaged by proponents. In undertaking the environmental impact assessment, these experts play a part as surrogate regulators. This is because the often extensive information provided by these experts is relied upon by government regulators to properly exercise their functions of determining development applications and in regulating approved developments. To that end, the environmental impact statement needs to contain a declaration by the qualified person who prepared it that the statement has been prepared in accordance with all statutory requirements, contains all available information of relevance to the environmental assessment of the development, and that the information contained in the statement is neither false nor misleading.157 Moreover, if engaged early by proponents, environmental impact assessors can play a significant role in encouraging proponents to modify development proposals to have better environmental outcomes and better achieve regulatory objectives.

32.6.2.4 Standards Organizations The legislative and executive branches of government are primarily responsible for creating environmental and planning legislation and regulation. However, environmental and planning standards developed by third parties have occasionally been incorporated by governments into existing regulatory regimes. A recognized158 example of this is the product and building standards developed by non-government, not-for-profit standards organizations. In developing building and product standards, coined as ‘regulatory standard-setting’,159 standards organizations aim to help satisfy ‘community demand for a safe and sustainable environment’.160 For example, Australian Standard AS 3959-2209 establishes minimum requirements for the construction of buildings in bushfire-prone areas of Australia. In NSW, this standard has been incorporated in the Environmental Planning and Assessment Regulation 2000 regulatory framework governing development in bushfire prone areas.161 There has also been a significant expansion across the world in the use of sustainable building certification schemes created and managed by third party specialist organizations. The most significant of these certification schemes is the Leadership in Energy and Environmental Design building code managed by the United States Green Building Council, which is claimed to be the ‘most widely used third-party verification for green buildings’.162 Although such schemes are voluntary and usually operate outside of planning law regimes, governments may elect to incorporate such certification mechanisms into existing development codes in the future, rather than developing their own schemes. In so doing, third party green building organizations, such as the United States Green Building Council, may become surrogate regulators.

157 Environmental Planning and Assessment Regulation 2000 (NSW), cl. 6(f). 158 See e.g.N. Brunsson and B. Jacobsson, A World of Standards (Oxford: Oxford University Press, 2000); K. Abbott and D. Snidal, ‘The Governance Triangle: Regulatory Standards Institutions and The Shadow of the State’ in W. Mattle and N. Woods (eds.), The Politics of Global Regulation (Princeton: Princeton University Press, 2008). 159 See e.g. Abbott and Snidal, ‘The Governance Triangle’. 160 Standards Australia, ‘What We Do’, at: http://www.standards.org.au/OurOrganisation/AboutUs/ Pages/default.aspx. 161 Environmental Planning and Assessment Regulation 2000, cl. 273. 162 Leadership in Energy and Environmental Design, at: http://www.usgbc.org/leed.

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regulatory organization 743

32.7 The Regulated as Self-Regulator 32.7.1 Introduction As part of the broader shift of modern regulatory systems away from a state-centric ‘command and control’ model of organization, many nation-states have increasingly incorpor ated self-regulation and other voluntary approaches in pursuit of particular environmental outcomes. As Lyon has noted, ‘[r]ecent years have seen a major shift away from mandatory environmental regulations and towards the use of voluntary modes of regulation. These new approaches encourage environmental improvement but do not compel it. They take many forms: industry self-regulation, negotiated agreements between government and industry, voluntary partnership programs . . . information disclosure programs and environmental labelling’.163 The rationale for allowing the substitution of conventional regulatory mechanisms for voluntary approaches is that, according to the Organisation for Economic Cooperation and Development (OECD), it ‘can offer a higher economic efficiency . . . by providing firms increased flexibility in how they achieve environmental improvements’.164 However, voluntary approaches to regulation have been criticized on the basis that ‘the economic efficiency of voluntary approaches is generally low’ and has rarely resulted in better environmental outcomes than that which would have occurred otherwise.165 Moreover, it has been asserted by some that governments have failed to uphold their duty to ensure the effectiveness of self-regulation and that ‘poorly performing self-regulation is either improved or replaced’.166

32.7.2 Individuals as Regulators Two of the more common ways in which environmental and planning law regimes have enabled and required individuals to become self-regulators are the introduction of self-assessment regulatory codes and the rise of negotiated environmental management agreements between individuals and government. Historically, proponents of most proposed developments were required by environmental and planning law regimes to obtain prior development approval from government. In some regimes today, a significant range of development is no longer subject to the requirement to obtain approval from any governmental or other regulator provided that the proposed 163 T. Lyon, ‘The Pros and Cons of Voluntary Approaches to Environmental Protection’ (Paper presented at the ‘Reflection on Responsible Regulation’ Conference, Tulane University, 1–2 March 2013), 2. 164 OECD, ‘Voluntary Approaches for Environmental Policy: Effectiveness, Efficiency and Usage in Policy Mixes’ (2003), available at: http://www.oecd.org/env/tools-evaluation/voluntaryapproachesforenvironmentalpolicy.htm. 165 OECD, ‘Voluntary Approaches for Environmental Policy’, at 14. 166 L. Sylvan, ‘Self-Regulation–Who’s in Charge Here?’ (A paper presented to the ‘Current Issues in Regulation: Enforcement and Compliance’ Conference, 2–3 September 2002, Melbourne), 9.

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744 brian preston development complies with ‘pre-determined development standards’.167 Although these standards are often objective (and therefore leave a significant role for government to monitor and enforce compliance), they enable and require individuals to become quasi-regulators in self-assessing their own development proposal for compliance with the relevant code. In so doing, these individuals exercise the regulatory functions of assessing a development proposal and determining whether it is permissible under law. For instance, under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW), a wide variety of specified ‘exempt development’ does not require approval from any regulator if it meets particular standards.168 Similarly, governments may introduce self-assessable environmental regulations that effectively permit individuals to become quasi-regulators. For example, the NSW government introduced, on 1 August 2014, the ‘10/50 Vegetation Clearing Scheme’ under the Rural Fires Act 1997 (NSW).169 This scheme allows individuals, without external approval, to clear trees within 10 metres of their home and clear any vegetation (excluding trees) within 50 metres of their home.170 To guide individuals on what is permitted under the scheme, the government prepared a code of practice.171 However, individuals exercise a significant amount of discretion to self-regulate in respect of how they manage native vegetation within this bushfire protection zone. Subsequently, concerns were raised that some landholders were abusing the scheme by clearing vegetation for purposes other than bush fire protection. As a consequence, the scheme was reviewed and revised.172 The second way in which individuals have become quasi-regulators with respect to environmental protection and conservation is through the introduction of voluntary negotiated environmental management agreements. In NSW, a landholder can enter into a conservation agreement or wildlife refuge agreement under the Biodiversity Conservation Act 2016 (NSW) to permanently conserve land.173 This approach reflects the widespread recognition ‘that stemming the decline of biodiversity requires a greater focus on conservation efforts targeting private land’.174 In jointly creating the terms of such an agreement, the individual landholder arguably becomes a joint regulator in determining how to regulate biodiversity on the land.

32.7.3 Enterprises as Regulators Many nation-states have sought to harness the potential of self-regulation to improve the environmental performance of enterprises. Indeed, the OECD observed thirteen years ago 167 This phrase is taken from Lyster et al., Environmental & Planning Law in New South Wales, at 68–9. 168 See Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) Pt 2. 169 See Rural Fires Act 1997 (NSW), ss. 100Q–100R. 170 See Rural Fires Act 1997 (NSW), s. 100R. 171 NSW Rural Fire Service, 10/50 Vegetation Clearing Code of Practice for New South Wales (NSW Government, 4 September 2015), available at: http://www.rfs.nsw.gov.au/__data/assets/pdf_file/0003/ 18453/1050-Vegetation-Clearing-Code-of-Practice.pdf. 172 NSW Government Review of the 10/50 Vegetation Clearing Entitlement Scheme (August 2015), available at: http://www.rfs.nsw.gov.au/__data/assets/pdf_file/0019/33607/Review-of-the-1050-VegetationClearing-Entitlement-Scheme-Report.pdf. 173 Biodiversity Conservation Act 2016 (NSW) Div 3 and 4 of Pt 5. 174 M. Hardy et al., ‘Exploring the Permanence of Conservation Covenants’ (2016) 10 Conservation Letters 221.

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regulatory organization 745 that ‘over the last decades, an increasing number of “voluntary approaches” have been implemented in environmental policy in OECD member countries’.175 Yet, despite the international popularity of these voluntary approaches, ‘by the late-1990s a number of systematic reviews of the various voluntary initiatives had concluded that either there were few demonstrated benefits or those benefits were confined to “soft” issues (such as information diffusion and consciousness raising)’.176 Consequently, Gunningham has argued that this precipitated ‘a further shift in the architecture of environmental regulation’ towards governments adopting a regulatory approach which emphasized cooperating with business.177 Nevertheless, voluntary approaches involving ‘self-regulating organisations [and] regimes of enforced self-regulation’ have retained a significant position in many environmental and planning regulatory regimes.178 There are three main types of voluntary approaches by which industry self-regulates to achieve environmental outcomes: ‘unilateral commitments’; negotiated public and private agreements; and ‘public voluntary programs’.179 First, unilateral commitments refer to a voluntary scheme or programme developed and operated by industry to improve environmental performance.180 For example, Gunningham notes that ‘large chemical companies usually go beyond compliance for reasons related primarily to the perceived need to protect their reputation and maintain the trust of local communities’.181 In particular, the global chemical industry has established one of the most prominent global self-regulation initiatives—namely, Responsible Care.182 The American Chemistry Council claims that Responsible Care is practised today by ‘60 national and regional associations in more than 65 economies around the world’.183 It requires that chemical companies ‘improve environmental, health, safety and security performance for facilities, processes and products throughout the entire operating system’.184 Voluntary schemes are not always successful in achieving the aims of the schemes. For example, voluntary beverage container recycling schemes have been ineffective, prompted government action to establish mandatory schemes.185 Second, negotiated agreements refer to environmental protection agreements entered into between a polluter and the government or a polluter and persons affected by pollution.186 For example, under the Environment Protection Act 1997 (ACT), environmental protection agreements can be made between the Environment Protection Authority and those ‘conducting certain activities that pose environmental risks’ to ‘allow scope for businesses to 175 OECD, ‘Voluntary Approaches for Environmental Policy’, at 18. 176 Gunningham, ‘Environmental Law, Regulation and Governance’, at 187. 177 Ibid., at 187–8. 178 Hutter, ‘The Role of Non-State Actors in Regulation’, at 2. 179 See Gunningham, ‘Environmental Law, Regulation and Governance’, at 187; OECD, ‘Voluntary Approaches for Environmental Policy’, at 18–19. 180 See Gunningham, ‘Environmental Law, Regulation and Governance’, at 187; OECD, ‘Voluntary Approaches for Environmental Policy’, at 18–19. 181 Gunningham, ‘Environmental Law, Regulation and Governance’, at 194. 182 Hutter, ‘The Role of Non-State Actors in Regulation’, at 4. 183 American Chemistry Council, ‘Responsible Care’, available at: https://responsiblecare.americanchemistry.com/. 184 Ibid. 185 e.g. the NSW government recently introduced the Waste Avoidance and Resource Recovery Amendment (Container Deposit Scheme) Act 2016 (NSW). 186 See Gunningham, ‘Environmental Law, Regulation and Governance’, at 187; OECD, ‘Voluntary Approaches for Environmental Policy’, at 18–19.

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746 brian preston manage their environmental performance in partnership with the EPA rather than the EPA acting solely as enforcer’.187 These agreements can be viewed on the Environment Protection Authority Public Register.188 In terms of agreements made between polluters and those who suffer pollution, some large polluters have pursued a policy of entering into agreements with local communities. The agreements may contain e nvironmental commitments, including monetary or other contributions to local communities.189 There may, however, be legal difficulties with developers making community donations. A planning authority’s decision to approve a wind farm was held to be unlawful for taking into account the operator’s offer to donate 4 per cent of the wind farm’s turnover to the local community.190 Third, public voluntary programmes are those where businesses ‘agree to standards (related to their performance, technology, or management) which have been developed by public bodies such as environmental agencies’.191 Often, these programmes ‘invite firms to set and achieve environmental goals, and offer modest subsidies to encourage firms to participate’.192 As Lyon and Maxwell have detailed, public voluntary programmes ‘have been developed to address a variety of issues, including agriculture, air quality, energy efficiency and climate change, labelling, pollution prevention, waste management, and water’.193 They note that public voluntary programmes have been used particularly in relation to ‘pollution prevention and climate change’ mitigation.194 For instance, the Climate Challenge program, sponsored by the Department of Energy (US), encouraged utilities to establish GHG emissions reduction targets, devise a regime to do so, and self-assess their performance.195 However, significant concern has been expressed that ‘[t]he extensive and continued use of PVPs by the EPA stands in marked contrast to the empirical literature that suggests the programs are ineffective’.196 In these and other ways, the regulatory organization of environmental and planning law regimes has altered to incorporate regulated enterprises as quasi-regulators.

32.8 Concluding Remarks The architecture of modern environmental regulation and regulatory institutions evidence plural paradigms of different regulatory approaches and different regulators. 187 ACT government, ‘Environment Protection Agreements’, available at: http://www.accesscanberra. act.gov.au/app/answers/detail/a_id/3135/~/environmental-protection-agreements#!tabs-1; see also, although dated, S. Ridgley, ‘Environmental Protection Agreements in Japan and the United States’ (1996) 5(3) Pacific Rim Law and Policy Journal 639. 188 ACT government, ‘Environment Protection Agreements’. 189 e.g. in Portugal, the national government has mandated that 2.5 per cent of all revenue raised from the feed-in-tariff on a wind farm’s electricity be returned to the municipality: see A. Newman, ‘Creating the Power for Renewal: Evaluation of New South Wales’ Renewable Energy Planning Law Changes and Suggestions for Further Reform’ (2012) 29 Environmental & Planning Law Journal 498, at 503. 190 The Queen (on the application of Peter Wright) v Forest of Dean District Council [2016] EWHC 1349 (Admin); [2016] JPL 1235. 191 OECD, ‘Voluntary Approaches for Environmental Policy’, at 19. 192 Ibid. 193 T. Lyon and J. Maxwell, ‘Environmental Public Voluntary Programs Reconsidered’ (2007) 35 Policy Studies Journal 723, at 723. 194 Ibid. 195 Ibid., at 731. 196 Ibid., at 734.

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regulatory organization 747 Environmental regulation has moved far beyond the executive branch of government. The other traditional branches of government, the legislature, and judiciary, play important roles in shaping, implementing, and enforcing the regulations and the regulatory system. The fourth branch of government upholds the integrity of governance, including by ensuring that regulatory institutions exercise their powers lawfully, and improves the structure and operation of regulatory organization. Regulatory pluralism is manifested also in the growth of regulators outside government. Non-governmental institutions increasingly act as surrogate regulators. Environmental and community associations promote, formulate, administer, and enforce environmental regulations. Specialist, non-government professionals and entities, including insurance companies, external auditors and assessors, and standards organizations, act as surrogate regulators. As part of the broader shift away from a state-centric ‘command-and-control’ model, there has been increased use of self-regulation and other voluntary approaches. The regulated have become self-regulators. This regulatory pluralism has therefore resulted in a complex web of regulator approaches and regulatory institutions intended to better achieve environmental outcomes.

32.9 Select Bibliography Abbott, K. and D. Snidal, ‘The Governance Triangle: Regulatory Standards Institutions and The Shadow of the State’ in W. Mattle and N. Woods (eds.), The Politics of Global Regulation (Princeton: Princeton University Press, 2008). Braithwaite, J., Regulatory Capitalism: How it Works, Ideas for Making it Work Better (Cheltenham: Edward Elgar, 2008). Brunsson, N. and B. Jacobsson, A World of Standards (Oxford: Oxford University Press, 2000). Cane, P. and L. McDonald, Principles of Administrative Law: The Legal Regulation of Governance (South Melbourne: Oxford University Press, 2008). Creyke, R., ‘An “Integrity” Branch’ (2012) 70 Australian Institute of Administrative Law Forum 33. Griffith, G., ‘Parliament and Accountability: The Role of Parliamentary Oversight Committees’ (NSW Parliamentary Research Service Briefing Paper No 12/05, November 2005). Gunningham, N., ‘Environmental Law, Regulation and Governance: Shifting Architectures’ (2009) 21(2) Journal of Environmental Law 179. Gunningham, N., M. Phillipson, and P. Grabosky, ‘Harnessing Third Parties as Surrogate Regulators: Achieving Environmental Outcomes by Alternative Means’ (1999) 8 Business Strategy and the Environment 211. Hutter, B., ‘The Role of Non-State Actors in Regulation’ (Centre for Analysis of Risk and Regulation Discussion Paper No. 37, London School of Economics and Political Science, April 2006). Lyon, T., ‘The Pros and Cons of Voluntary Approaches to Environmental Protection’ (Paper presented at the ‘Reflection on Responsible Regulation’ Conference, Tulane University, 1–2 March 2013). Macrory, R., Regulation, Enforcement and Governance in Environmental Law (Oxford: Hart Publishing, 2014). McDonald, L., ‘The Rule of Law in the “New Regulatory State” ’ (2004) 33 Common Law World Review 197. OECD, ‘Voluntary Approaches for Environmental Policy: Effectiveness, Efficiency and Usage in Policy Mixes’ (2003), available at: http://www.oecd.org/env/tools-evaluation/voluntaryapproachesforenvironmentalpolicy.htm. Parker, C. and J. Braithwaite, ‘What is Regulation?’ in P. Cane and M. Tushnet (eds.), The Oxford Handbook of Legal Studies (Oxford: Oxford University Press, 2003).

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748 brian preston Preston, B., ‘Adequacy of Environmental Impact Statements in New South Wales’ (1986) 3 Environmental and Planning Law Journal 224. Preston, B., ‘Leadership by the Courts in Achieving Sustainability’ (2010) 27 Environmental and Planning Law Journal 321. Preston, B., ‘The Influence of Climate Change Litigation on Governments and the Private Sector’ (2011) 2 Climate Law 485. Preston, B., ‘Biodiversity Offsets: Adequacy and Efficacy in Theory and Practice’ (2016) 33 Environmental and Planning Law Journal 93. Richardson, B., ‘Mandating Environmental Liability Insurance’ (2002) 12 Duke Environmental Law & Policy Forum 293. Ridgley, S., ‘Environmental Protection Agreements in Japan and the United States’ (1996) 5(3) Pacific Rim Law and Policy Journal 639. Riley, S., ‘From Smart to Unsmart Regulation: Undermining the Success of Public Interest Litigation’ (2017) 34 Environmental & Planning Law Journal 299. Spigelman, J., ‘The Integrity Branch of Government’ (2004) 78 Australian Law Journal 724. Sylvan, L., ‘Self-Regulation—Who’s in Charge Here?’ (A paper presented to the ‘Current Issues in Regulation: Enforcement and Compliance’ Conference, 2–3 September 2002, Melbourne).

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chapter 33

Sciences, En v ironm en ta l L aws, a n d L ega l Cu lt u r e s Fostering Collective Epistemic Responsibility Elizabeth Fisher

33.1 Overview

749

33.2 Sciences and Their Roles in Environmental Laws

750

33.3 The Challenges of the Sciences

753

33.4 ‘Kettling’ Science

755

33.5 The Failure to Take Collective Epistemic Responsibility Seriously761 33.6 The Failure to Take Legal Culture Seriously

763

33.7 Concluding Remarks

767

33.8 Select Bibliography

767

33.1 Overview In every legal culture, the operation of meaningful and legitimate environmental laws requires those bodies of law to rest on a sound understanding of the physical environment and of environmental problems. The sciences have thus been an important part of environmental laws in nearly all legal cultures. But sciences and their roles in e nvironmental laws

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750 elizabeth fisher have been misunderstood. In particular, ‘Science’ is seen as something monolithic that is to be kept separate and apart from law. The problem with this is that while the sciences are distinct areas of disciplinary practice, their relationships with law are close and entangled. This understanding of the sciences as ‘Science’ threatens the development of effective and valid environmental laws as it results in political and legal communities failing to take collective epistemic responsibility and thus failing to take legal culture seriously. In this chapter, I explore: the roles of sciences in environmental law; the challenges such roles create; the different ways in which science has been ‘contained’ as a response to those challenges; how this leads to a failure of communities to take collective epistemic responsibility and legal culture seriously; and finally, how those failures can be counteracted. Two points should be made before starting. First, the phrase ‘the roles of sciences’ is a clunky one, but accurate in its description. Second, in the spirit of this Handbook, this chapter does not go into legal detail. Indeed, there is a deliberate emphasis on non-legal social science literature that opens up and scrutinizes scientific practices. After reading this chapter, I would encourage you to go out and explore the issues raised here in relation to a specific area of law.

33.2 Sciences and Their Roles in Environmental Laws There are many different ways to define science: as a set of methods, as a set of practices, and as a source of authority are just a few examples of definitional approaches.1 What these different definitions have in common is that they distinguish science from untutored belief. The practices of the sciences are practices concerned with rigorous ways of knowing about the world. This is one of the reasons why method, particularly experimental method, is seen as fundamental to science. As Jasanoff notes, the ‘public witnessing’ involved in experiments ‘bypassed the risks of distortion by well-placed actors falsely claiming superior knowledge’.2 This is not to say science is perfect or ‘pure’ truth or objectivity3—the history, philosophy, and sociology of science all show otherwise,4 but through a range of scientific practices ‘extraordinarily reliable knowledge has been produced by morally and cognitively ordinary people’.5 The ‘extraordinarily reliable knowledge’ relevant to environmental laws covers nearly all the sciences including physics, chemistry, biology (including ecology), and i nterdisciplinary scientific fields such as meteorology and the medical sciences. The work in these different areas also covers a vast swathe of disciplinary practices ranging from blue skies scientific 1 A. Chalmers, What Is This Thing Called Science? (Miadenhead: Open University Press, 4th edn. 2013); D. Oldroyd, The Arch Of Knowledge (Sydney: University Of New South Wales Press, 1986). 2 S. Jasanoff, Science and Public Reason (London: Earthscan, 2012), 1. 3 Note the history of ideas of objectivity. See L. Daston and P. Galison, Objectivity (New York: Zone Books, 2007). 4 Chalmers, What Is This Thing Called Science? Oldroyd, The Arch Of Knowledge; E. Hackett and others (eds.), Handbook of Science and Technology Studies (Cambridge M.A.: MIT Press, 3rd edn. 2008). 5 S. Shapin, Never Pure (Baltimore: John Hopkins University Press, 2010), 5.

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sciences, environmental laws, and legal cultures 751 research, applied research, environmental monitoring, and what Jasanoff has described as ‘regulatory science’: the production and synthesis of information with a particular emphasis on making predictions.6 Methods also vary. The holistic and large-scale nature of environmental problems mean that developing a deeper scientific understanding of them cannot be only by controlled experiments in a laboratory.7 Modelling, epidemiological studies, and other methods adapted to this context are thus common in this area.8 The scientific actors involved in the sciences relevant to environmental law are many. They involve those in government, academia, the private sector, and non-governmental organizations (NGOs) operating at both the national and the international level. The audiences for these different scientific practices also vary and include other scientists, governments, corporations, and the wider public. Broadly speaking, the sciences play three roles in different areas of environmental law. The first is that the sciences have identified environmental problems, their causes, and their possible solutions. The sciences are thus the foundation for the subject and have acted as catalysts for the development of environmental laws. Scientific writing for a wider public has been significant in regards to the latter. John Snow’s epidemiological map9 of deaths clustering around the water pump in London’s Soho was an important ‘persuasive campaigning medium’ that revealed ‘patterns that would have otherwise been invisible’10 and thus galvanized sanitary legal reform. Rachel Carson’s writing in the New Yorker, later published as Silent Spring,11 by highlighting the environmental problems created by pesticide use, acted as a catalyst for the introduction of legislation.12 This outward-facing aspect of science is particularly important to note because as the European Environmental Agency showed in their Late Lessons From Early Warnings report in 2002 there has often been a long delay between the identification of a problem by scientists and action being taken in relation to it.13 The second role, which overlaps with the first, is that the sciences are part and parcel of the practice of environmental law and regulation. Many environmental laws are framework statutes that empower public administration to set and revise standards that are in accordance with the legislative mandates in that statute.14 Thus the United States Clean Air Act requires national ambient air quality standards to be ‘ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public

6 S. Jasanoff, The Fifth Branch: Science Advisers as Policy Makers (Cambridge M.A.: Harvard University Press, 1990), 77. 7 D. Haraway, Staying With the Trouble: Making Kin in the Chthulucene (Durham: Duke University Press, 2016). 8 National Research Council, Models in Environmental Regulatory Decision Making (Washington D.C.: National Academies Press, 2007) and National Research Council, Science and Decisions: Advancing Risk Assessment (Washington D.C.: National Academies Press, 2009). 9 S. Halliday, The Great Stink of London (Stroud: History Press, 2009), 130–2. 10 S. Foxell, Mapping London: Making Sense of the City (London: Black Dog Publishing, 2007), 150. 11 R. Carson, Silent Spring (New York: Houghton Mifflin, 1962). 12 L. Lear, Rachel Carson: Witness for Nature (Boston: Mariner Books, 2009). 13 P. Harremoës and others (eds.), The Precautionary Principle in the Twentieth Century: Late Lessons From Early Warnings (London: Earthscan Publications, 2002). 14 E. Fisher, Risk Regulation and Administrative Constitutionalism (Oxford: Hart Publishing, 2007), 7–26.

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752 elizabeth fisher health’.15 Science is needed for the setting of those standards and this is the reason for the development of ‘regulatory science’ which is essentially an administrative practice.16 Scientific information may also be relevant in the making of individual decisions. Thus, environmental impact assessment and variations of it require the collection and assessment of scientific information.17 Scientific information can also be relevant to adjudication whether in the context of prosecutions,18 private law actions, or judicial and other forms of review.19 In all these different contexts, law is framing how science is understood and what use is made of it. In the administrative context, science is being deployed in the process of developing generic regulations pursuant to a statutory scheme. In a tort case, scientific evidence is being produced by a party as part of establishing their case.20 A range of sciences is also relevant to the continued monitoring of the natural environment so as to ensure that environmental laws are effective and/or regulatory standards are being complied with. Air quality is thus monitored as are the number of species. ‘State of the environment reporting’, in which data about environmental quality is collected and analysed, is integral to environmental law in most jurisdictions.21 Third, the sciences have played a symbolic role in the process of legitimizing environmental action by the state. Due to their collective and polycentric nature, environmental problems require the state to coordinate and regulate.22 In doing so the exercise of state power needs to be in accordance with ideals of legitimate state power. Ensuring decision-making is grounded in the evidence is ensuring compliance with the rule of law— one of the most important of these ideals. An evidential basis is a way of limiting the risk that decisions are not made on a whim and are not arbitrary. As Theodore Porter has pointed out ‘scientific objectivity . . . provides an answer to a moral demand for impartiality and fairness’.23 In this way, science, as Jasanoff notes ‘exercises constitutive power in the modern world, enabling and constraining the actions of states and citizens as legal constitutions do’.24 The sciences are thus fundamental to environmental law both in practice and in theory. So much so, that in some jurisdictions, environmental law has a closer affinity to the sciences

15 42 U.S.C. § 7409(b)(1). 16 Jasanoff, The Fifth Branch: Science Advisers as Policy Makers. 17 E. Fisher, ‘Environmental Impact Assessment: Setting the Law Ablaze’ in D. E. Fisher (ed.), Research Handbook of Fundamental Concepts in Environmental Law (Cheltenham: Edward Elgar, 2016). 18 R. Purdy, ‘Using Earth Observation Technologies for Better Regulatory Compliance and Enforcement of Environmental Laws’ (2010) 22 Journal of Environmental Law 59. 19 G. Edmond, ‘Secrets of the “Hot Tub”: Expert Witnesses, Concurrent Evidence and Judge-led Law Reform in Australia’ (2008) 27 Civil Justice Quarterly 51. 20 C. Cranor, Toxic Torts: Science, Law and the Possibility of Justice (Cambridge: Cambridge University Press, 2006). 21 Chapter 40 of Agenda 21 called for the development of better environmental information (including indicators). See United Nations Conference on Environment & Development, Agenda 21 (Rio de Janerio, Brazil, 3–14 June 1992). 22 G. Hardin, ‘The Tragedy of the Commons’ (1968) 162 Science 143. 23 T. Porter, Trust in Numbers: The Pursuit of Objectivity in Science and Public Life (Princeton: Princeton University Press, 1995), 8. 24 S. Jasanoff, ‘Epistemic Subsidiarity—Coexistence, Cosmopolitianism, Constitutionalism’ (2013) 4 European Journal of Risk Regulation 133, at 140.

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sciences, environmental laws, and legal cultures 753 than to other legal disciplines.25 The ways in which sciences carry out these roles vary significantly, across time, subject matters, and cultures. In Victorian England, scientific expertise was primarily deployed through inspectors, whose task was to enforce the law.26 Moreover, the commitment in the United Kingdom to a generalist civil service has meant that while expertise is an important part of environmental law, its role has been a nuanced and complex one.27 In contrast in the United States, in the early 1970s, science bureaucracies such as the Environmental Protection Agency were created by a bipartisan Congress.28 In the context of trade regulation there has been a heavy reliance on private and/or transnational standard setting bodies.29 The sciences are thus institutionalized in many different ways into environmental law. Moreover, cultural understandings of science and the forms of authority it offers differ between cultures.30 I will return to the significance of culture in section 33.6.

33.3 The Challenges of the Sciences In carrying out these different roles, the operation of the sciences in environmental law is far from straightforward. The challenges cluster and overlap and the significance of them will vary between contexts and cultures. There are challenges in ensuring that the science informing and underpinning legal decision-making is the best it can be. This is an issue for all scientific practice, but is significant in relation to environmental problems due to the fact that scientists are studying open ended, and holistic systems and also trying to predict the future of those systems.31 Scientific knowledge has its limits and this is one of the reasons why a major theme in environmental law has been scientific uncertainty and principles addressing it, such as the precautionary principle, have had such a high profile.32 Scientific uncertainty is not just a data gap but refers to a range of different technical, methodological,

25 S. Bell and others, Teaching Environmental Law (Nottingham: UK Centre for Legal Education, 2003) 8; E. Fisher and others, ‘Maturity and Methodology: Starting a Debate about Environmental Law Scholarship’ (2009) 21 Journal of Environmental Law 213, at 221. 26 R. Macleod (ed.), Government and Expertise: Specialists, Administrators, and Professionals 1860–1919 (Cambridge: Cambridge University Press, 1988) and R. Macleod, ‘The Alkali Acts Administration 1863–84: The Emergence of the Civil Scientists’ in R. Macleod (ed.), Public Science and Public Policy in Victorian England (Aldershot: Variorum Press, 1996). 27 S. Owens, ‘Experts and the Environment—The UK Royal Commission on Environmental Pollution 1970–2011’ (2012) Journal of Environmental Law 1; E. Fisher, ‘The Enigma of Expertise’ (2016) 28 Journal of Environmental Law 551. 28 Jasanoff, The Fifth Branch: Science Advisers as Policy Makers. 29 H. Schepel, The Constitution of Private Governance (Oxford: Hart Publishing, 2005). 30 Jasanoff, ‘Epistemic Subsidiarity—Coexistence, Cosmopolitianism, Constitutionalism’, at 140. 31 C. Merchant, Autnomous Nature: Problems of Prediction and Control from Ancient Times to the Scientific Revolution (New York: Routledge, 2016). 32 C. Forster, Science and the Precautionary Principle in International Courts and Tribnuals (Cambridge: Cambridge University Press, 2011); J. Peel, The Precautionary Principle in Practice: Environmental Decision-Making and Scientific Uncertainty (Sydney: Federation Press, 2005); E. Fisher, J. Jones, and R. von Schomberg (eds.), Implementing the Precautionary Principle: Perspectives and Prospects (Cheltenham: Edward Elgar 2006).

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754 elizabeth fisher epistemological, and ontological uncertainties in the practice of science.33 The scientific significance of these uncertainties varies. In some cases, such as climate change, we have a sound understanding of the phenomenon, but there are uncertainties in how to model future predictions. In other cases, such as the rise of breast cancer in Western societies, our knowledge is far less settled. It is also the case that scientific knowledge is dynamic and our understandings of environmental quality and our ability to model environmental quality changes over time.34 Another set of challenges concern the interdisciplinary divide between science and law.35 Lawyers rarely have the relevant scientific training for the scientific issues they are encountering. This disciplinary divide is particularly problematic as embedded in the scientific aspects of a decision is the reasoning. To determine whether a decision is not legally arbitrary or not underpinned by the evidence there needs to be an engagement with the science. Thus, while there is clearly a significant variation of approaches, if the scientific basis is fundamentally flawed, that may raise issues about the legal validity of a decision.36 This can be seen particularly in relation to regulatory decision-making involving scientific models.37 Alongside these issues, are ongoing concerns that science will usurp democratic debate.38 Most environmental decision-making involves both scientific and democratic inputs39—a state of affairs that reflects the way in which addressing environmental problems is both a physical and a normative enterprise. Societies need to decide not only what can be done about environmental problems but what should be done. This latter question involves not just issues about environmental quality but other concerns such as fairness and the balancing of environmental issues with other values.40 There are many reasons why the sciences crowd out the normative side of debate. Discussion about values may be squeezed out by a focus on the ‘numbers’.41 Generalist decision-makers may, due to the interdisciplinary divide, defer too readily to experts and not be critical enough of their reasoning.42 There may be some cases where ‘science’ is used in pursuit of particular political and academic agendas.43 All these are real concerns. They occur in different contexts and the study of these challenges is through different disciplinary frames. Lawyers, philosophers, sociologists, and 33 B. Wynne, ‘Uncertainty And Environmental Learning’ (1992) 2 Global Environmental Change 111. 34 H. Nowotny, The Cunning of Uncertainty (Cambridge: Polity Press, 2016). 35 D. Bazelon, ‘Science and Uncertainty: A Jurist’s View’ (1981) 5 Harvard Environmental Law Review 209. 36 E. Fisher, P. Pascual, and W. Wagner, ‘Rethinking Judicial Review of Expert Agencies’ (2015) 93 Texas Law Review 1681. 37 E. Fisher, P. Pascual, and W. Wagner, ‘Understanding Environmental Models in Their Legal and Regulatory Context’ (2010) 22 Journal of Environmental Law 251. 38 D. Estlund, Democratic Authority: A Philosophical Framework (Princeton: Princeton University Press, 2008); F. Fischer, Democracy and Expertise: Reorienting Policy Inquiry (Oxford: Oxford University Press, 2009). 39 Fisher, Risk Regulation and Administrative Constitutionalism, at chapter 1. 40 S. Rayner and R. Cantor, ‘How Fair is Safe Enough?: The Cultural Approach to Societal Technology Choice’ (1987) 7 Risk Analysis 39; National Research Council, Understanding Risk: Informing Decisions in a Democratic Society (Washington D.C.: National Academy Press, 1996). 41 L. Tribe, ‘Technology Assessment and the Fourth Discontinuity: The Limits of Instrumental Rationality’ (1973) 46 Southern California Law Review 616. 42 L. Heinzerling, ‘The Environment’ in P. Cane and M. Tushnet (eds.), The Oxford Handbook of Legal Studies (Oxford: Oxford University Press, 2003). 43 W. Wagner, ‘The Science Charade in Toxic Risk Regulation’ (1995) 95 Columbia Law Review 1613.

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sciences, environmental laws, and legal cultures 755 political scientists are all concerned with these issues.44 The end result is that there is no one single way of studying and thinking about the sciences in environmental law. This rich body of literature highlights both the importance of the sciences but also the pitfalls.

33.4 ‘Kettling’ Science It is very clear that judges and decision-makers working at the coalface of environmental law are acutely aware of the challenges involved in the interrelationship between the sciences and environmental law.45 That awareness has manifested in a variety of ways including: the significant focus on the precautionary principle;46 the development of judicial review doctrines of deference;47 discussions about evidentiary procedure in decision-making;48 and the attention given to science in institutional design.49 While some of these strategies ‘open up’ scientific practices to scrutiny, much of the focus over the last thirty years in environmental law has been to do the opposite—that is to ‘contain’ the sciences. This process of containment can be understood as akin to ‘kettling’. ‘Kettling’ is the colloquial term used to describe a particular police force technique for policing public protests. As the London Metropolitan Police describe it, this is a practice of ‘containment’ where ‘police officers surround a section of a crowd in order to prevent serious disorder or a breach of the peace’.50 This can take a variety of forms including stationary and dynamic forms of containing crowds. It can also go on for a long period of time, denying those in the ‘kettle’ access to water, food, and toilet facilities. By its very nature, it is a crude enterprise and often non-protesters can find themselves ‘kettled’.51 Most importantly, the policing of the ‘kettle’ defines the boundaries and nature of what is in the ‘kettle’. The analogy between the sciences in environmental law and policing public protest is not an exact one, but it is significant to note that both practices are being carried out to protect the public sphere. Protest is being contained so it does not override public debate through violence and the containment of science is being done so as not to usurp or undermine 44 See nn. 32–43. 45 E. Fisher, ‘Drowning by Numbers: Standard Setting in Risk Regulation and the Pursuit of Accountable Public Administration’ (2000) 20 Oxford Journal Of Legal Studies 109 and the cases discussed in Fisher, Pascual and Wagner, ‘Rethinking Judicial Review of Expert Agencies’. 46 Forster, Science and the Precautionary Principle in International Courts and Tribnuals; Peel, The Precautionary Principle in Practice; Fisher, Jones, and von Schomberg (eds.), Implementing the Precautionary Principle. 47 E. Hammond Meazell, ‘Super Deference, the Science Obsession, and Judicial Review as Translation of Agency Science’ (2011) 109 Michigan Law Review 733; Fisher, Pascual, and Wagner, ‘Rethinking Judicial Review of Expert Agencies’. 48 P. Ky, ‘Qualifications, Weight of Opinion, Peer Review and Methodology: A Framework for Understanding the Evaluation of Science in Merits Review’ (2012) 24 Journal of Environmental Law 207; Edmond, ‘Secrets of the “Hot Tub” ’. 49 G. Majone, ‘Foundations of Risk Regulation: Science, Decision-Making, Policy Learning, and Institutional Reform’ (2010) 1 European Journal of Risk Regulation 5. 50 Metropolitan Police, Public Order Glossary, at: http://content.met.police.uk/Article/Public-orderglossary/1400003721993/1400003721993. 51 This was the issue with three out of four litigants in Austin v UK [2012] ECHR 459.

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756 elizabeth fisher democracy. In both contexts, what is being kettled or contained are people and the process of kettling gets in the way of more active communication between those inside and outside the area of containment. Moreover, just as with kettling, the sciences are not only contained but also delimited and defined. The kettling of the sciences in environmental law is done in many ways. It has been particularly prevalent in the United States, but can also be seen in other jurisdictions.52 Here I identify four different ways in which the sciences are ‘kettled’. Each of these different approaches overlap and interrelate and the process of containment is also delimiting what science is understood to be. First, at a very general level the containment of the sciences occurs through discussion in law and policy being in terms of ‘Science’ not the sciences. Science in this regard is a monolithic ‘thing’ rather than an umbrella term for a whole series of reliable knowledge practices. The science/law divide is treated as a general one and while most lawyers would know that science is relevant to environmental law they would know little more. Moreover, ‘Science’ is treated as a black box and thus part of its containment is to limit inquiry into it. Thus, scientific models are treated as ‘truth machines’53 and there is very little discussion about what they are and how they are constructed and developed. The moniker of Science closes off debate. As Latour notes: ‘[w]hen one appeals to Science, there is no need for debate, because one always finds oneself back in school, seated in the classroom where it is a matter of learning or else getting a bad grade’.54 A result of this is that legal and policy reforms have treated the role of sciences as something that can be delimited (and something to be looked up to) and their role in decision-making pre-defined. Second, the ‘kettling’ of the sciences is done through institutionally separating out science from other aspects of environmental decision-making. This is often driven by constitutional concerns. The European Union’s European Food Safety Authority is a case in point. Its responsibilities are scientific, a state of affairs that reflects rules about non-delegation in the EU.55 At the international level, technical standard setting has been entrusted to international organizations.56 In international and national jurisdictions there is also the privatizing of standard setting.57 Third, and related to this is that the sciences are contained by process. Thus, in the 1980s the National Research Council’s Risk Assessment in the Federal Government: Managing the Process58 divided up regulatory standard setting into a scientific process of risk assessment and a political process of risk management.59 This division has come to define risk 52 E. Fisher, ‘Risk and Environmental Law: A Beginner’s Guide’ in B. Richardson and S. Wood (eds.), Environmental Law for Sustainability (Oxford: Hart Publishing, 2006). 53 W. Wagner, E. Fisher, and P. Pascual, ‘Misunderstanding Models in Environmental and Public Health Regulation’ (2010) 18 New York University Environmental Law Journal 101. 54 B. Latour, An Inquiry Into Modes of Existence: An Anthropology of the Moderns (Cambridge M.A: Harvard University Press, 2013), 3. 55 http://www.efsa.europa.eu. 56 Article 3.3 World Trade Organization Agreement on Sanitary and PhytoSanitary Standards. 57 J. Scott and others, ‘The Promise and Limits of Private Standards in Reducing Greenhouse Gase Emissions From Shipping’ (2017) 29 Journal of Environmental Law 231. 58 National Research Council, Risk Assessment in the Federal Government: Managing the Process (Washington D.C.: National Academy Press, 1983). 59 S. Jasanoff, Risk Management and Political Culture: A Comparative Study of Science in the Policy Context (New York: Russell Sage Foundation, 1986).

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sciences, environmental laws, and legal cultures 757 regulation60 and interrelates with the organizational structure of EFSA discussed above. Take for example this description from the EFSA website: Risk assessors provide independent scientific advice on potential threats in the food chain. Risk managers use this advice as a basis for making decisions to address these issues. At a European level, this separation of roles is fundamental and enshrined in law. It was introduced to make clear the distinction between science and politics; to place independent sciencebased assessment at the heart of policy making.61

This distinction between risk assessment and risk management is not generated from scientific practices, but is imposed outside by administrative structures.62 That fact highlights that this process of containing science is not a product of internal scientific practices, but external forces. The containment of sciences has been due to how law and policy has framed the nature and role of science. Fourth, science is ‘kettled’ by creating external yardsticks63 that define what is legitimate scientific practice. Thus, policy debate is not only in terms of Science, but the language of ‘sound science’ and ‘junk science’ is also used.64 The implicit basis of the use of these terms is that there is a distinction to be drawn between legitimate Science (which is sound) and illegitimate Science (which is junk). The yardsticks are not only external, but are also standards in reference to a monolithic concept of Science rather than a multiplicity of sciences. These yardsticks are particularly important because they are what are used to assess scientific decision-making and hold decision-makers to account. Such yardsticks operate across environmental regulation, including in regards to policy guidance on the use of science in decision-making, the standards of judicial review, and legislative frameworks. One striking example of the latter, is a number of legislative proposals that were introduced in the US Congress in 2017.65 All these proposals were concerned with regulating the US Environmental Protection Agency’s (EPA’s) use of science. These proposals did not pass as legislative proposals,66 but they are excellent illustrations of attempts to ‘kettle’ science by attempting to create yardsticks for what scientific practice is.

60 E. Fisher, ‘Framing Risk Regulation: A Critical Reflection’ (2013) 4 European Journal of Risk Regulation 125. 61 https://www.efsa.europa.eu/en/press/news/140416. 62 Fisher, ‘Framing Risk Regulation’. 63 On the idea of yardsticks see Fisher, Pascual and Wagner, ‘Rethinking Judicial Review of Expert Agencies’. 64 T. McGarity, ‘Our Science is Sound Science and Their Science is Junk Science: Science-Based Strategies For Avoiding Accountability and Responsibility for Risk-Producing Products and Activities’ (2004) 52 University of Kansas Law Review 897. 65 For an overview of these developments see W. Wagner, E. Fisher, and P. Pascual, ‘Whose Science? A New Era in Regulatory “Science Wars” ’ (2018) 362 Science 636. 66 Although there has been some executive action. See S.Pruitt, ‘Strengthening and Improving Membership on EPA Federal Advisory Committees’ (EPA, 21 October 2017) 3. There is also a proposed executive order. See EPA, ‘Strengthening Transparency in Regulatory Science’ (2018) 83 Federal Register 18768 which is yet to pass.

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758 elizabeth fisher For example, the Honest and Open New EPA Science Treatment Act of 2017 (HONEST Act)67 was proposing to require that ‘all scientific and technical information relied upon’ to support EPA action be: (A) the best available science; (B) specifically identified; and (C) publicly available online in a manner that is sufficient for independent analysis and substantial reproduction of research results, except that any personally identifiable information, trade secrets, or commercial or financial information obtained from a person and privileged or confidential, shall be redacted prior to public availability.68

Note here that while ‘best available science’ remained an undefined term, requirement (C) set out a number of requirements for what is good science (‘sufficient for independent analysis and substantial reproduction of research results’). The EPA Science Advisory Board Reform Act of 2017, another legislative proposal,69 regulated the EPA’s Science Advisory Board including requiring that: [I]n carrying out its advisory activities, the Board shall strive to avoid making policy determinations or recommendations, and, in the event the Board feels compelled to offer policy advice, shall explicitly distinguish between scientific determinations and policy advice.70

And that the ‘Board shall clearly communicate uncertainties associated with the scientific advice provided to the Administrator or Congress’.71 The Better Evaluation of Science and Technology Act of 2017 (BEST Act)72 proposed to apply across all US administrative agencies. It required: (f) To the extent that an agency makes a decision based on science when issuing a rule under this section, the agency shall use scientific information, technical procedures, measures, methods, protocols, methodologies, or models, employed in a manner consistent with the best available science, and shall consider as applicable— . . . (3) the degree of clarity and completeness with which the data, assumptions, methods, quality assurance, and analyses employed to generate the information are documented; (4) the extent to which the variability and uncertainty in the information, or in the procedures, measures, methods, protocols, methodologies, or models, are evaluated and characterized; and (5) the extent of independent verification or peer review of the information or of the procedures, measures, methods, protocols, methodologies, or models. (g) An agency shall make a decision described in subsection (f) based on the weight of the scientific evidence.

Here can be seen a number of different requirements that define what type of science can be used. 67 H.R.1430, 115th Congress (2017–18). 68 Ibid., s. 2. 69 H.R.1431, 115th Congress (2017–18). 70 Ibid., s. 2. 71 Ibid. 72 S.578, 115th Congress (2017–18).

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sciences, environmental laws, and legal cultures 759 It may appear at first glance that these different legislative proposals are doing the very opposite of ‘kettling’. Discussion of ‘weight of the scientific evidence’ or the ‘variability and uncertainty in the information’ appear to engaging directly with scientific practice. The problem is however, that these terms, relate to a generic concept of Science, not to a range of different scientific practices which deploy different methodologies. For example, the reproducibility of data is relevant for laboratory experiments, but less relevant for environmental monitoring, particularly of large-scale accidents.73 Likewise, the simple appeal of ‘weight of the scientific evidence’ does little to reveal its complex operation in reality.74 Thus, counterintuitively, these proposals are likely to kettle the sciences even more, rather than open them up.75 There is a genuine appeal to these different ways of containing Science. They seemingly deal with the problem of the interdisciplinary divide and seemingly ensure that science does not usurp democracy while at the same time giving the impression that decisions are underpinned by evidence. These different containment techniques can also seemingly address constitutional norms in a particular jurisdiction. But comparing this vision of Science with the discussion in sections 33.1 and 33.2 also makes clear that this process of containment is more complicated than it looks. It is also the case, that as many scholars have noted, the black boxing of science exacerbates the situation in which ‘Science’ is used as a vehicle for pursuing ideological interests.76 This is because the quality of claims to scientific veracity are hard to ascertain if there is no requirement to look beyond the language, institutions, processes, and/or yardsticks that kettle scientific practices. Thus for example, ideological interests have generated uncertainty as a way to question the science underpinning regulation.77 Likewise, the legislative proposals above are quite obviously related to a deregulatory agenda. In his introductory comments at a congressional hearing entitled ‘Making EPA Great Again’ that occurred at the same time as these proposals were being considered, Congressman Lamar Smith opened his introductory remarks commenting that: Sound science should be at the core of the EPA’s mission. Legitimate science should underlie all actions at the agency, from research to regulations, and be an integral part of justifying their actions.78

73 For a generalist discussion of this point see F. Pearce, ‘Secret-science Bill Inches a Step Closer to US Law; New Scientist (24 March 2015), available at: https://www.newscientist.com/article/dn27231-secretscience-bill-inches-a-step-closer-to-us-law/. 74 A. Rosenberg, ‘Written Testimony’ US Senate Subcommittee on Regulatory Affairs and Federal Management—Agency Use of Science in the Rulemaking Process: Proposals for Improving Transparency and Accountability (9 March 2017), available at: https://www.hsgac.senate.gov/hearings/agency-use-ofscience-in-the-rulemaking-process-proposals-for-improving-transparency-and-accountability. 75 Wagner, Fisher, and Pascual, ‘Whose Science?’. 76 T. McGarity and W. Wagner, Bending Science: How Special Interests Corrupt Public Health Research (Cambridge M.A.: Harvard University Press, 2008). 77 D. Michaels, Doubt Is Their Product: How Industry’s Assault on Science Threatens Your Health (Oxford: Oxford University Press 2008). 78 L. Smith, ‘Statement of Chairman Lamar Smith (R-Texas)’ US Congress Full Committee Hearing of House Committee on Science, Space and Technology—Making EPA Great Again (7 February 2017), available at: https://science.house.gov/legislation/hearings/full-committee-hearing-making-epa-great-again.

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760 elizabeth fisher Later in the same remarks he noted: ‘[i]n recent years, the EPA has sought to regulate every facet of Americans’ way of life. Instead, we should invest in research and development and let technology lead the way.’79 The kettling of science thus is favouring one ideological vision of the state over another. Before turning to consider responses to this situation, let me return the analogy with policing protests to consider where the analogy falls short. Most obviously, protesters are not akin to scientists. Public protest, is varied, but is carried out for a set of defined purposes at specific times. In contrast, the practice of the sciences in environmental law is constant and are for a range of reasons and by a range of actors. ‘Kettling’ protest is happening at one point in time in relation to one purpose. The containment of the sciences in environmental law has generically applied across a range of different contexts. This is even though scientific practices are interwoven into environmental law practices. Most significantly, kettling has given rise to a body of legal doctrine and debate concerned with its appropriate use. Take for example this statement from the England and Wales College of Policing’s Authorised Professional Practice: Police use of containment as a crowd control measure does not infringe the right to liberty of individual members of the crowd provided the tactic is: • resorted to in good faith • proportionate to the situation making the measure necessary and • enforced for no longer than is reasonably necessary. If the use of containment does not meet these criteria, its use may be found to be arbitrary and in violation of ECHR [European Convention of Human Rights] Article 5. It should be noted from Austin80 that the: • question of whether there has been a deprivation of liberty is based on the particular facts of each case • coercive nature of containment points towards a deprivation of liberty, and the court will take into account the type and manner of implementation to determine whether liberty has been deprived.81

Not much of this is relevant to the sciences in environmental law, but what is notable is how much it makes the containing of the sciences in environmental law seem a very crude method indeed. There is little discussion about good faith, necessity, proportionality, or any other matter when it comes to ‘kettling’ the sciences in environmental law. Science is something treated apart from law and that is the end of the conversation.

79 Ibid. 80 Austin and others v The United Kingdom—39692/09 [2012] ECHR 459 (15 March 2012). 81 College of Policing, Public Order: Core Principles and Legislation, Section 2.9, https://www.app. college.police.uk/app-content/public-order/core-principles-and-legislation/#restricting-the-right-topeaceful-protest.

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sciences, environmental laws, and legal cultures 761

33.5 The Failure to Take Collective Epistemic Responsibility Seriously And it is that separation that has meant that there is no general assumption that there is a need for environmental lawyers to understand scientific practices, their nature, their potential, and their limits. There is thus a failure to understand how the sciences are varying forms of reliable knowledge and how law constitutes, limits, and shapes scientific practices. To put it at its most straightforward, the containment of science results in a failure of lawyers and decision-makers to take collective epistemic responsibility. I don’t mean anything deeply philosophical by the phrase ‘collective epistemic responsibility’. Rather what I am connoting is the importance of political communities understanding that while knowledge claims may be the province of different scientific practices, they cannot distance themselves from those claims and how they are made. Political communities must ensure that the ways and means for producing and using reliable knowledge is in the remit of those communities. If Science is separated out, there is no understanding that communities must create the conditions for knowledge production, its use, and its accountability. Taking collective e pistemic responsibility, is not about those communities all carrying out scientific practices—such practices require skill, expertise, and time—but it does make clear that those practices cannot be completely contracted out. Nor is it about, as with the legislative proposals above, the external setting of yardsticks for good science. Such responsibility thus requires interaction with the sciences. It also requires reflection. There are two interrelated reasons for needing to take this responsibility. First, as shown above, law and policy are ‘framing’ scientific practices in environmental law.82 They are doing so through the design of legislation, institutional organization, doctrine, and policy.83 The law in particular is defining what science is and how it will figure in decision-making.84 It will be determining how scientific practices produce ‘servicable truths’.85 As Jasanoff notes: The term ‘serviceable’ . . . calls attention to the fact that science’s role in the legal process is not simply, even preeminently, to provide a mirror of nature. Rather, it is to be of service to those who come to the law with justice or welfare claims whose resolution happens to call for scientific fact-finding.86

The problem of course with the containment of the sciences is that it treats science as something separate from legal practices and not shaped by them. This stands in stark contrast 82 S. Jasanoff, Designs on Nature: Science and Democracy in Europe and the United States (Princeton: Princeton University Press, 2005). 83 Fisher, Risk Regulation and Administrative Constitutionalism. 84 S. Jasanoff, ‘Objectivity in Regulatory Science: Sites and Practices’ in C. Camic, N. Gross, and M. Lamont (eds.), Social Knowledge in the Making (Chicago: University of Chicago Press, 2011). 85 S. Jasanoff, ‘Servicable Truths: Science for Action in Law and Policy’ (2015) 93 Texas Law Review 1723. 86 Ibid., at 1730.

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762 elizabeth fisher with the ‘kettling’ of public protest. That is very obviously a legal practice. Taking collective epistemic responsibility thus requires recognition of the role that law plays in defining what relevant scientific practices are and what are acceptable knowledge claims.87 To put the matter another way, it matters how lawyers imagine the sciences and how the products of that imagining are embedded in law and legal culture.88 Thus in relation to the series of legislative proposals, what is needed to accompany them is a robust legal and policy discussion about what could be used as yardsticks for good scientific practices, and when and when not, they might be applicable. The second reason for collective epistemic responsibility is that in political communities there is an allegiance to public reason. All citizens should be able ‘to explain and justify our beliefs and commitments’89 and part of that explaining is the explaining of knowledge claims. Thus, while in a complex technological society it is inevitable that the production of reliable knowledge will occur among specialist groups,90 that does not mean such groups are not accountable to the rest of civil society. To put the matter another way, the robust discussion argued for in the last paragraph needs to include those involved in scientific practices. Take for example, Beatson LJ’s discussion of the importance of an expert decision-maker (in this case the Environment Agency of England and Wales) explaining their decision in the context of a judicial review. ‘It is the duty of such a body to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide, the legality of the challenged decision’91 he noted. Later he also stated: In my judgment, the need for a defendant to have its ‘cards upwards on the table’ is particularly important where the context is a technical or scientific one in which the defendant expects the courts to tread warily and accord a wide margin of appreciation to the decision-maker. A reviewing court needs to be given a sufficient explanation by a regulator operating in a technical or scientific area of how the science relates to its decision so that the court can consider whether it embodies an abuse of discretion or an error of law.92

What Beatson LJ is stressing here is while courts do recognize the expertise of decisionmakers they need to understand what they are reviewing so as to carry out the courts’ constitutional and legal functions. Similar approaches can be seen in other jurisdictions.93 What is implicit in this process of taking collective epistemic responsibility is the need to engage with some aspects of scientific practice, so as to enable this process of holding decisionmakers to account. That clearly cannot be about developing wholesale scientific expertise in 87 V. Heyvaert, ‘Governing Climate Change: Towards a New Paradigm for Risk Regulation’ (2011) 74 Modern Law Review 817; S. Jasanoff, ‘The Songlines of Risk’ (1999) 8 Environmental Values 135. 88 Haraway, Staying With the Trouble, at chapter 2. 89 M. Lynch, In Praise of Reason: Why Rationality Matters for Democracy (Cambridge M.A.: MIT Press, 2012), 2. 90 R. Hardin, How Do You Know? The Economics of Ordinary Knowledge (Princeton: Princeton University Press, 2009). 91 Mott v Environment Agency [2016] EWCA Civ 564 [56]. 92 Ibid. [64]. 93 e.g. Kennecott Copper Corporation v EPA 462 F 2d 846 (DC Cir 1972) (cited in the case); Director of Animal and Plant Quarantine v Australian Pork Limited [2005] FCAFC 206; Pfizer Animal Health SA ([2002] ECR II-3305 T-13/99).

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sciences, environmental laws, and legal cultures 763 relation to a specific area and there are different views on what it involves. Collins and Evans have discussed the idea of interactional expertise—that is expertise in which someone has linguistic understanding of a field of knowledge.94 Latour in contrast, has stressed the importance of opening up scientific institutions and processes for scrutiny so that trust can be fostered.95 Scholars note the importance of engaging head on with scientific uncertainty.96 There is also discussion about the need to create new forums and processes for decisionmaking in which experts and the general public are engaged.97 None of these arguments are arguments that science is subjective or that it is driven by values. Rather these are arguments that there is a need within a society to understand the sciences as an ‘ecology of practices’98 and that there is need to distinguish between how well or how badly knowledge claims have been put together.99 Thus there is a need to understand what a scientific practice does or does not take into account or measures, both ideally and actually.100 There is a need to make method visible.101 There is a need to understand how inferences are made from the data available and to assess the quality of that data.102 The reality is that this is what has been involved in the practice of environmental law already. This can be seen most obviously in regards to the role of courts in reviewing environmental decision-making.103 As noted above, courts in such circumstances have had to engage with scientific practices so as to determine whether a decision is within the power of a decision-maker. This requires understanding what the norms of good decision-making are, and these can vary between scientific practices and between contexts. The laws of evidence can also be understood as examples of collective epistemic responsibility—they create a frame that defines what evidence is admissible and what is not, in particular adjudicative contexts. The problem then is not that collective epistemic responsibility is not possible, but that there has been a failure to recognize the importance of it, and to take it seriously as part and parcel of the practice of environmental law.

33.6 The Failure to Take Legal Culture Seriously That set of failures also leads to another—the failure to take legal culture seriously. The term legal culture denotes legal norms, rules, institutions, and the interaction between them.104 94 H. Collins and R. Evans, Rethinking Expertise (Chicago: University of Chicago Press, 2007). 95 Latour, An Inquiry Into Modes of Existence, at 3. 96 Jasanoff, ‘Servicable Truths: Science for Action in Law and Policy’; and Nowotny, The Cunning of Uncertainty. 97 M. Callon, P. Lascoumes, and Y. Barthe, Acting in an Uncertain World: An Essay on Technical Democracy (Cambridge M.A.: MIT Press, 2009). 98 I. Stengers, Cosmopolitics II (Minneapolis: University of Minnesota Press, 2011). 99 B. Latour, ‘An Attempt at a “Compositionist Manifesto” ’ (2010) 41 New Literary History 471. 100 Stengers, Cosmopolitics II, at 400–2. 101 P. Pascual, W. Wagner, and E. Fisher, ‘Making Methods Visible: Improving the Quality of Science Based Regulation’ (2013) 2 Michigan Journal of Environmental and Administrative Law 429. 102 Ibid. 103 Fisher, Pascual, and Wagner, ‘Rethinking Judicial Review of Expert Agencies’. 104 Fisher, Risk Regulation and Administrative Constitutionalism, at 35.

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764 elizabeth fisher It also, as Nelken notes, refers to ‘more nebulous ideas, values, aspirations, and mentalities’.105 Legal cultures obviously exist at the national level where there are ‘imagined communities’ that exhibit a ‘deep, horizontal comradeship’106 of which legal culture is part. But legal cultures also exist at the international level with different areas of international law having not only their own norms and laws, but their own mentalities.107 The reason why the failure to take collective epistemic authority seriously leads to a failure to take legal culture seriously has a both explicit and implicit aspect. The explicit aspect concerns the relationship of ‘kettling’ science with globalization. Environmental law is seen by some as the ultimate ‘global subject’ in that environmental problems are common and many have a ‘global’ dimension.108 Indeed it is tempting to treat the natural environment as a global whole about which science can provide information. If it is treated in such a way then Science acts as an ‘immutable mobile’ in that it seemingly allows for science, and thus what is being governed, to be ‘mobilised, gathered, archived, coded, recalculated and displayed’ as it moves across a range of different jurisdictions and contexts.109 Thus the risk management/risk assessment framework is seen as a fixed and universal distinction despite its origins in US legal debates.110 Likewise models are understood as disembodied scientific knowledge rather than things constructed for particular purposes in particular contexts.111 As Tsing notes, the image of the Global Environment ‘obscures and facilitates worldwide collaborations’.112 In particular it hides how reliable knowledge is the product of a series of scientific practices that are carried out in particular contexts for particular purposes. Globalization results in such knowledge ‘being lost in space, lost in time’.113 It has no institutional bearings, no ‘earthly roots’.114 Most significantly, it hides the role of law and legal institutions in framing the scientific practices in environmental law.115 In other words, in the global context, the containment of science goes hand in hand with ignoring legal culture because the ignoring of legal culture seemingly makes globalization easier.

105 D. Nelken, ‘Using the Concept of Legal Culture’ (2004) 29 Australian Journal of Legal Philosophy 1, at 1. 106 B. Anderson, Imagined Communities (London: Verso, revised edn. 1991), 7. 107 J. Weiler, ‘Law, Culture and Values in the WTO—Gazing Into the Crystal Ball’ in D. Bethlehem and others (eds.), Oxford Handbook of International Trade Law (Oxford: Oxford University Press, 2009); A. Lang, World Trade Law After Neoliberalism (Oxford: Oxford University Press, 2011). 108 T. Yang and R. Percival, ‘The Emergence of Global Environmental Law’ (2009) 36 Ecology Law Quarterly 615. 109 B. Latour, Science in Action (Cambridge M.A.: Harvard University Press, 1987), 227; E. Fisher, ‘Risk and Governance’ in D. Levi-Faur (ed.), Oxford Handbook of Governance (Oxford: Oxford University Press, 2012). 110 Fisher, ‘Framing Risk Regulation’. 111 M. Mahony, ‘Climate Change and the Geographies of Objectvity: The Case of the IPCC’s Burning Embers Diagram’ (2015) 40 Transactions of the Institute of British Geographers 153. 112 A. Lowenhaupt Tsing, Frictions: An Ethongraphy of Global Connections (Princeton: Princeton University Press, 2005), 111. 113 B. Latour, ‘Is Geo-Logy the Umbrella for all the Sciences? With a Few Hints for a New University’ (Lecture at Cornell University, 25 October 2016). 114 B. Latour, ‘Onus Orbis Terrarum: About a Possible Shift in the Definition of Sovereignty’ (2016) Millenium: Journal of International Studies 311. 115 D. Winickoff and others, ‘Adjudicating the GM Food Wars: Science, Risk and Democracy in World Trade Law’ (2005) 30 Yale Journal of International Law 81.

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sciences, environmental laws, and legal cultures 765 But the relationship between the failure to take collective epistemic responsibility seriously and the failure to take legal culture seriously also has an implicit aspect. Engaging with legal culture is engaging with legal detail and any such engagement makes quickly clear how important law and legal frameworks are to how science is understood and practiced. Examples abound from the literature.116 The policy documents that are part of a regulatory regime will have implications for how scientific terminology is defined.117 Scientific decision-makers are not acting in isolation.118 A study of comparative regulatory objects cannot avoid the fact that law is framing what is and is not relevant scientific knowledge.119 The large scale ‘science bureaucracies’ of the United States differ markedly from the generalist approach of the United Kingdom.120 In regards to the latter, it is an approach that is ‘based on a normative and practical commitment to pragmatic governance. Nevertheless, expert bodies . . . are part of the reality of that life’.121 This highlights the fact that in the study of these legal cultures there is a need to often study contradictions. Judges regularly talk of deference but they are often doing the opposite. What is striking about this work is while some is being carried out by sociologists,122 much is also being carried out by mainstream doctrinal lawyers. In their attention to legal detail, attention is drawn to the fact that such detail frames law.123 That in turn, results in a need to take law seriously. As Lees notes in concluding a study of science in habitats law in the United Kingdom/EU context, recognizing the interrelationship between administration, science, and law requires embracing, rather than shunning, the virtues of the common law as a means by which statutory terms are given precision over time through the development of, and reliance on, well-established common law principles.124

In other words, taking scientific practices seriously requires taking law seriously. From a distance this might appear an exercise in distinguishing between legal cultures that favour more or less ‘objective’ science. But as the analysis above makes clear, objectivity as a generic concept closely linked to a monolithic ideal of Science is not helpful—it is too 116 Besides that mentioned below see also M. Hodgson, ‘Scientists as Regulators of Default Inference: Examining the Rule–Evidence Interface in Administrative Law’ (2015) 27 Journal of Environmental Law 203; Ky, ‘Qualifications, Weight of Opinion, Peer Review and Methodology’; and J. Peel, Science and Risk Regulation in International Law (Cambridge: Cambridge University Press, 2010). 117 H. Josefsson, ‘Ecological Status as a Legal Construct—Determining its Legal and Ecological Meaning’ (2015) 27 Journal of Environmental Law 231; B. Lange, Implementing EU Pollution Control (Cambridge: Cambridge University Press, 2008). 118 E. Lees, ‘Allocation of Decision-Making Power under the Habitats Directive’ (2016) 28 Journal of Environmental Law 191. 119 Jasanoff, Designs on Nature; E. Fisher, ‘Chemicals as Regulatory Objects’ (2014) 23 Review of European, Comparative and International Environmental Law 163. 120 Compare Jasanoff, The Fifth Branch and Owens, ‘Experts and the Environment’. 121 Fisher, ‘The Enigma of Expertise’, at 556–7. 122 The important work of Jasanoff is particularly significant in this regard. Besides the works cited throughout this chapter also see S. Jasanoff, ‘A New Climate For Society’ (2010) 27 Theory, Culture and Society 233. 123 Fisher, Pascual, and Wagner, ‘Rethinking Judicial Review of Expert Agencies’. 124 Lees, ‘Allocation of Decision-Making Power under the Habitats Directive’, at 218.

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766 elizabeth fisher crude and too much of a black box to help in understanding how reliable knowledge claims are generated. What is needed to take collective epistemic responsibility is the opening up of institutions. Take for example Latour’s description of a professor of climatology explaining the reliability of their science in the face of climate change denial: And he begins to lay out before his audience the large number of researchers involved in climate analysis, the complex systems for verifying data, the articles and the reports, the principle of peer evaluation, the vast network of weather stations, floating weather buoys, satellites, and computers that ensure the flow of information—and then, standing at the blackboard, he starts to explain the pitfalls of the models that are needed to correct the data as well as the series of doubts that have had to be addressed on each of these points.125

A similar set of inquiries into institutional practices can be seen in cases where courts are reviewing scientifically intensive decision-making.126 Another example is a recent UK case127 concerning the British government’s failure to comply with the EU Air Quality Directive in taking steps to address air quality problems.128 Whether or not there was a failure to comply partly depended on the modelling technique the government was using in developing their Air Quality Plans (AQPs). The judge in this case thus undertook an inquiry similar to that above and concluded: Against that background, the observation in the technical report supporting the AQP set out above, is remarkable. It means that the Government is acknowledging that its plan is built around a forecast based on figures which ‘emerging data’ is undermining and that if higher, more realistic, assumptions for emissions are made the number of zones which will not meet the limit value in 2020 increases substantially. In my judgement, it is no answer to that point to say that COPERT [the modelling technique] is widely used in Europe; the fact that others are ignoring the obvious weaknesses of the data is of no assistance to the department. It seems to me plain that by the time the plan was introduced the assumptions underlying the Secretary of State's assessment of the extent of likely future non-compliance had already been shown to be markedly optimistic. In my judgement, the AQP did not identify measures which would ensure that the exceedance period would be kept as short as possible; instead it identified measures which, if very optimistic forecasts happened to be proved right and emerging data happened to be wrong, might achieve compliance. To adopt a plan based on such assumptions was to breach both the Directive and the Regulations.129

125 Latour, An Inquiry Into Modes of Existence. 126 Fisher, Pascual, and Wagner, ‘Rethinking Judicial Review of Expert Agencies’, talking about the need to understand inside out accountability to operate outside in accountability. See also S. Shapiro, ‘The Failure to Understand Expertise in Administrative Law: The Problem and the Consequences’ (2016) 50 Wake Forest University Law Review 1097. 127 ClientEarth (No 2) v Food and Rural Affairs Secretary of State for the Environment [2016] EWHC 2740 (Admin). 128 Specifically, Art. 13 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 [2008] OJ L152/1. 129 ClientEarth (No 2), [85]–[86].

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sciences, environmental laws, and legal cultures 767 In doing so they were applying legal reasoning embedded in British legal culture. Thus Bell has argued the case not only raises issues about how judges review modelling, but also fundamental issues to do with EU law and how English grounds of review operate.130 Opening up law and legal reasoning opens up the black box of Science. And the vice versa is also true. Treating Science as a contained concept makes it easier to ignore legal frameworks and ideas and thus to not engage with legal culture. It can also result in treating environmental law as an instrument as well.131

33.7 Concluding Remarks This chapter has been deliberately short on legal detail. The argument I make here, the need to take both collective epistemic responsibility and legal culture seriously, is neither original nor particularly radical. As the footnotes in this chapter attest, many lawyers and scholars have made the prescriptive argument and as I point out in this chapter, taking both things seriously are part of the practice of environmental law. Judges cannot close their eyes to how knowledge claims are generated. The rhetoric of deference, however consoling, doesn’t allow them to escape that task. Scholars in studying legal frameworks, inevitably stumble into how such frameworks frame scientific practices. But the importance of both collective epistemic responsibility and legal culture are often buried in the legal detail. Nor do those articles or anything else provide neat, easily transferrable answers to the challenges of the laws/sciences interface. Even when they do, as we saw above, they point in different directions.132 And that is because there are no simple answers. But taking collective epistemic responsibility and legal culture seriously, enables the challenges involved in those practices to be identified and in so being, for them to be tackled head on.

33.8 Select Bibliography Chalmers, A., What Is This Thing Called Science? (Milton Keynes: Open University Press, 3rd edn. 1999). Collins, C. and R. Evans, Rethinking Expertise (Chicago: University of Chicago Press, 2007). Fisher, E., Risk Regulation and Administrative Constitutionalism (Oxford: Hart Publishing, 2007). Fisher, E., ‘Framing Risk Regulation: A Critical Reflection’ (2013) 4 European Journal of Risk Regulation 125. Fisher, E., P. Pascual, and W. Wagner, ‘Understanding Environmental Models in Their Legal and Regulatory Context’ (2010) 22 Journal of Environmental Law 251. Jasanoff, S., The Fifth Branch: Science Advisers as Policy Makers (Cambridge M.A.: Harvard University Press, 1990). Jasanoff, S., ‘Servicable Truths: Science for Action in Law and Policy’ (2015) 93 Texas Law Review 1723. 130 J. Bell, ‘Clientearth (No. 2): A Case of Three Legal Dimensions’ (2017) 29 Journal of Environmental Law 343. 131 E. Fisher, ‘Environmental Law, Technology and “Hot Situations”: Taking the Tragedy of the Commons Seriously’ in R. Brownsword, K. Yeung, and E. Scotford (eds.), Oxford Handbook of Law and Technology (Oxford: Oxford University Press, 2017). 132 See the text accompanying nn. –100.

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768 elizabeth fisher Harremoës, P. and others (eds.), The Precautionary Principle in the Twentieth Century: Late Lessons From Early Warnings (London: Earthscan Publications, 2002). Michaels, D., Doubt Is Their Product: How Industry’s Assault on Science Threatens Your Health (Oxford: Oxford University Press, 2008). Porter, T., Trust in Numbers: The Pursuit of Objectivity in Science and Public Life (Princeton: Princeton University Press, 1995). Wagner, W., Fisher, E., and Pascual, P., ‘Whose Science? A New Era in Regulatory “Science Wars” ’ (2018) 362 Science 636.

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chapter 34

Tr a nsnationa l N et wor ks Veerle Heyvaert

34.1 Overview

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34.2 Transnational Environmental Networks

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34.3 Mapping Transnational Environmental Networks

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34.4 Transnational Networks in Comparative Environmental Law: Facing the Challenges

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34.5 Concluding Remarks

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34.6 Select Bibliography

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34.3.1 Introduction 34.3.2 Public/Public Networks 34.3.3 Public/Private Networks 34.3.4 Private/Private Networks 34.3.5 Private/Public Networks 34.3.6 Hybrid Networks

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34.1 Overview Countries are the traditional ‘base units’ of comparative law. Researchers who deploy a comparative methodology predominantly rely on state-by-state assessments to acquire a deeper understanding of law and its relation to society. This state-by-state focus also features in the compact but important discipline of comparative environmental law, as attested by the tables of content of some of the lead publications in the field.1 However, e nvironmental 1 See e.g. the Jurisdiction chapters of the 2017 Environment and Climate Change Law section of the International Comparative Legal Guides, available at: https://iclg.com/practice-areas/environmentand-climate-change-law/environment-and-climate-change-law-2017#general-chapters; K. Robbins (ed.),

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770 veerle heyvaert law is also one of the legal disciplines in which the limitations of state-by-state approaches are most prominently on display. From its early emancipation into a self-standing discipline in the mid-1960s, environmental law has never been a strictly national affair. Increasing awareness of both the seriousness and the transboundary reach of most forms of environmental pollution fuelled a call for the adoption of legal measures to protect the environment, coupled with an understanding that the effectiveness of such measures would hinge on their recognition at a level beyond that of individual states.2 Hence, regional and international or ‘global’ law have long been vitally important vehicles for environmental protection, perhaps more emphatically so than in any other public policy field. The transboundary character of environmental law is particularly pronounced in European Union (EU) Member States. For example, recent estimates of the proportion of UK environmental law that is either a direct application of or derived from EU environmental law, conducted in the context of the UK government’s decision to leave the EU, indicate that around 80 per cent of national environmental law is rooted in the EU.3 The long-standing prominence of international and regional law in the field of environmental law has pushed comparative environmental scholars to confront the limitations of the country-by-country approaches. Many comparative environmental law studies therefore include one or several chapters on international or regional legal regimes before delving into discussions of national law.4 Some contemporary comparative works even focus exclusively on different regional environmental regimes.5 Comparative environmental law has, therefore, taken account of law beyond the state. However, this chapter argues that there is both an opportunity and a need for this engagement to broaden and to deepen. A first reason is that comparative environmental inquiries, including those which encompass the international or regional legal sphere, often underdeliver in terms of the genuinely comparative lessons drawn from the analysis. Instead, they are all too often confined to side-by-side reporting. A review of the salient features of, say, the Convention on Biological Diversity6 sits alongside a discussion of laws and regulations on nature conservation in Japan, followed by an overview of nature conservation rules in Australia, a survey of similar provisions in Finland, and so on. Many such studies focus heavily on black letter law, and often expend more energy on building the foundations for The Law and Policy of Environmental Federalism. A Comparative Analysis (Cheltenham: Edward Elgar, 2015); Y. Ma, Conservation and Recreation in Protected Areas. A Comparative Legal Analysis of Environmental Conflict Resolution in the United States and China (London and New York: Routledge, 2016); and J. Tosun, Environmental Policy Change in Emerging Market Democracies: Eastern Europe and Latin America Compared (Toronto: University of Toronto Press, 2013). 2 J. Holder and M. Lee, Environmental Protection, Law and Policy: Text and Materials (Cambridge: Cambridge University Press, 2007), 211. 3 V. Heyvaert and A. Čavoški, ‘UK Environmental Law Post Brexit’ in M. Dougan (ed.), The UK After Brexit: Legal and Policy Challenges (Cambridge: Intersentia, 2017), 117. 4 See e.g. M. Wilde, Civil Liability for Environmental Damage. A Comparative Analysis of Law and Policy in Europe and the United States (Kluwer Law International, 2002); C. Piñon Carlarne, Climate Change Law and Policy (Oxford: Oxford University Press, 2010); and Y. Nakanishi (ed.), Contemporary Issues in Environmental Law: The EU and Japan (Tokyo: Springer, 2016). 5 See e.g. W. Scholtz and J. Verschuuren (eds.), Regional Environmental Law. Transregional Comparative Lessons in Pursuit of Sustainable Development (Cheltenham: Edward Elgar, 2015). 6 Rio de Janeiro (Brazil), 5 June 1992, in force 29 December 1993, available at: https://www.cbd.int/ convention/text/default.shtml.

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transnational networks 771 a comparison than on the actual task of comparing. The latter is frequently relegated to concluding chapters of edited volumes on comparative law, in which editors valiantly seek to identify and synthesize common themes and connections. Creative and insightful though such ex post attempts may be, the lessons drawn from ‘final chapter comparisons’ can also be slightly haphazard and meagre when contrasted with the volume and depth of the source material. A particular and often unaddressed difficulty in this context is to effectively locate the contribution of the international (or regional) legal perspective to the comparative analysis. The second important consideration supporting a plea for a deeper and stronger engagement with the transboundary nature of environment law, derives from a dissatisfaction with the representation of the environmental legal sphere as consisting of three separate layers of international law, regional law, and national law.7 A frequently voiced argument in contemporary environmental legal scholarship is that the landscape of environmental law and regulation is more diversified and complex than the neatly delineated triptych of ‘international law-regional law-national law’ reflects.8 Environmental norms and rules are not ‘made’ at one particular level and then simply applied at another; they are products of interaction.9 They are not international or national, but transnational.10 Moreover, whether operating individually or through an intergovernmental arrangement, states are not the only players in this normative interaction.11 Instead, we need to take into account the major role and contribution to environmental governance by non-state actors. These include a varied range of organizations, from corporate entities and non-governmental organizations (NGOs) to sub-national authorities such as cities and municipalities.12 Increasingly, the articulation of environmental principles and the administration of environmental law are effectuated through networks that connect different combinations of public and private authority, and that are transnational in reach. As our understanding of the sources and dynamics of environmental law evolves, so should our perspective on the subject and mandate of comparative environmental law. The key aim of this chapter is to lay conceptual foundations that may help environmental legal comparativists to engage productively with the transnational and networked aspects of 7 E. Fisher, B. Lange, and E. Scotford, Environmental Law: Text, Cases and Materials (Oxford: Oxford University Press, 2013), 68–9. 8 V. Heyvaert and T. Etty, ‘Introducing Transnational Environmental Law’ (2012) 1(1) Transnational Environmental Law 1–11. 9 R. Baldwin, J. Black, and G. O’Leary, ‘Risk Regulation and Transnationality: Institutional Accountability as a Driver of Innovation’ (2014) 3(2) Transnational Environmental Law 387–90. 10 Heyvaert and Etty, ‘Introducing Transnational Environmental Law’; G. Shaffer, ‘Transnational Legal Process and State Change’ (2012) 37(2) Law & Social Inquiry 232–6. 11 V. Heyvaert, ‘The Transnationalization of Law: Rethinking Law Through Transnational Environmental Regulation’ (2017) 6(2) Transnational Environmental Law 207. 12 J. F. Green, Rethinking Private Authority. Agents and Entrepreneurs in Global Environmental Governance (Princeton and Oxford: Princeton University Press, 2014); D. Vogel, ‘The Private Regulation of Global Corporate Conduct’ in W. Mattli and N. Woods (eds.), The Politics of Global Regulation (Princeton and Oxford: Princeton University Press, 2009), 154; D. B. Hollis, ‘Why State Consent Still Matters—Non-State Actors, Treaties, and the Changing Sources of International Law’ (2005) 23(1) Berkeley Journal of International Law 137–74; J. Setzer, ‘Testing the Boundaries of Subnational Diplomacy: The International Climate Action of Local and Regional Governments’ (2015) 4(2) Transnational Environmental Law 319–37.

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772 veerle heyvaert contemporary environmental law and governance. To this end, the next section offers a brief discussion of the rise of transnational networks as sources of environmental law and governance and the likelihood of their persistence in the coming decades. Section 34.3 canvasses different strategies to organize the field of transnational environmental networks for comparative purposes, and selects one such approach, namely, an actor-based approach, for further development. Section 34.4 then considers the impact of engaging with transnational networks on the practice of comparative environmental law. It will be argued that, as alternative ‘units of analysis’, transnational environmental networks create a range of new challenges for comparativists, but they also offer new opportunities to push comparative studies beyond established boundaries.

34.2 Transnational Environmental Networks It is hard to conceive of any policy field in which the state has a complete monopoly of law and governance. Even in such ‘deeply domestic’ areas as defence, education, family life, and taxation, some degree of power-sharing takes place. However, in few areas is the transnational quotient as high, or as intensively studied, as in the field of environmental protection. A full analysis of the drivers of transnationalization in environmental law and governance is beyond the remit of this brief discussion, but some key factors merit attention. First, one of the most frequently discussed triggers for the transnationalization of environmental law and governance is economic globalization.13 As goods, services, capital, and enterprises move more freely across the globe, the impact of national environmental law and regulation increasingly resonates beyond borders.14 High levels of domestic regulation are cast as potential barriers to trade; low levels of environmental regulation transform into ‘leakage risks’ that could siphon off investment and defeat the purpose of stricter standards elsewhere.15 Economic globalization thus creates powerful incentives for transnational cooperation with regard to environmental legal requirements. Legal approximation can be achieved through the adoption of internationally agreed harmonized standards, or through the conclusion of mutual recognition agreements through which different countries essentially recognize the equivalence of each other’s legal provisions. The requisite interstate negotiation, however, can be tortuous and slow,16 which creates a demand for alternative, non-state institutions to step in and expedite the approximation process.17 For instance, the 13 C. Knill and D. Lehmkuhl, ‘Private Actors and the State: Internationalization and Changing Patterns of Governance’ (2002) 15(1) Governance 41–63. 14 Cf. D. Vogel, Trading Up: Consumer and Environmental Regulation in a Global Economy (Cambridge M.A.: Harvard University Press, 1997). 15 J. Baert Wiener, ‘Global Environmental Regulation: Instrument Choice in Legal Context’ (1999) 108 Yale Law Journal 693. 16 W. Jacoby and S. Meunier, ‘Europe and the Management of Globalization’ (2010) 17(3) Journal of European Public Policy 299–317. 17 E. Benvenisti, ‘The Conception of Law as a Legal System’ (2008) Tel Aviv University Law School Faculty Papers 83/2008, 12.

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transnational networks 773 non-governmental International Organization for Standardization (ISO) has developed a range of transnational environmental standards with the primary aim of facilitating trade.18 As the ISO has become a powerful player in the field of global environmental governance, it frequently cooperates with national governments and regional organizations in the development of its standards. Moreover, ISO standards can be embedded in officially binding legal instruments via direct reference or presumptions of conformity. Thus, the process of environmental standardization and regulation matures through a transnational network of public-private cooperation.19 A second key explanation for the strongly transnational nature of environmental law and governance is the transboundary scope of today’s most high profile environmental risks. Major global threats such as climate change, ozone depletion, and marine pollution add more fuel to the demand for legal responses that transcend the national level.20 Some of these responses come in the shape of sweeping multilateral environmental agreements (MEAs) within the traditional realm of public international law, such as the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal21 or the United Nations Framework Convention on Climate Change (UNFCCC).22 Others are more informal and are either developed or strongly supported by non-state actors. The conventional wisdom is that, although MEAs play an important role in delivering environmental governance, they are too cumbersome and restrictive to achieve the regulatory impact that is needed to avert rapid, global, and irreversible environmental decline. The case for alternative, non-state transnational regimes to complement international law has been made particularly ardently in the case of climate change. Andonova observes that ‘climate change is characterized by unenviable complexity and the need for policy coordination vertically, horizontally, and across sectors. Unlike many other e nvironmental policies that often focus on one industry or several sets of actors, climate governance has to involve multiple sectors, often with divergent interests and roles’.23 Climate change has become the archetype of a complex problem that, even if political willingness abounded, cannot be governed by any one regime at any level of governance, but instead clamours for a multitude of governance initiatives, unfolding across the private-to-public, local-to-global spectrum.24 A third and related factor explaining the proliferation of transnational networks, is the existence of an established and robust transnational infrastructure. Arguably, transnationalization begets transnationalization.25 Although MEAs and alternative forms of transnational environmental governance might seem like competing phenomena, the more 18 See overview of the ISO 14000 family of environmental management standards at: https://www.iso. org/iso-14001-environmental-management.html. 19 V. Heyvaert, ‘What’s in a Name? The Covenant of Mayors as Transnational Environmental Regulation’ (2013) 21(1) RECIEL 84. 20 Wiener, ‘Global Environmental Regulation’, at 686. 21 Basel (Switzerland), 22 March 1989, in force 5 May 1992, available at: http://www.basel.int/ TheConvention/Overview/TextoftheConvention/tabid/1275/Default.aspx. 22 New York, NY (United States), 9 May 1992, in force 21 March 1994, available at: http://unfccc.int. 23 L. Andonova, M. Betsill, and H. Bulkeley, ‘Transnational Climate Governance’ (2009) 9(2) Global Environmental Politics 57 (emphasis added). 24 Heyvaert, ‘What’s in a Name’, at 80–1. 25 Cf. K. Raustiala, ‘The Architecture of International Cooperation: Transgovernmental Networks and the Future of International Law’ (2002) 43(1) Virginia Journal of International Law 1–91.

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774 veerle heyvaert persuasive perspective is that the international and transnational sphere feed off each other. Commentators have remarked on the prolific emergence of transnational networks that arise spontaneously, outside any formal framework, from a need for shared problem solving.26 Slaughter discusses the role of the Organisation for Economic Cooperation and Development (OECD) as a venue for both formal collaboration and informal liaising between national regulators seeking to pool resources and problem-solving capacity. She further reports on the increasingly widespread use of Memoranda of Understanding (MoUs) between regulators on principles and operating procedures that can be implemented without legislative intervention.27 The UNFCCC offers another vivid illustration of the co-productive dynamics of international and transnational law and governance. The implementation and day-to-day management of the UNFCCC regime has sparked an explosion in transnational committees, working groups, expert advisers, standing bodies, and countless networks that assume an ever expanding array of facilitating, administrative and (quasi) regulatory functions. Moreover, the UNFCCC is also the world’s busiest meeting place for countless public and private organizations that seek to share ideas and launch initiatives on particular aspects of the climate change complex. The regular Conferences of Parties, for example, are attended much more widely than by representatives of the signatory states, and offer valuable opportunities for corporations, NGOs, city councillors, university departments, and many others to liaise, discuss, cooperate, negotiate, and orchestrate. Some of the initiatives that bubble up around the ‘coral reef ’ of the UNFCCC are carried out within the framework of the Convention, but others develop in the periphery. The argument has been made that offering such a coral reef for the germination of thematically linked transnational initiatives is an overlooked but crucial function of contemporary international environmental law.28 Transnational networks are particularly prominent in the context of climate change, but their presence characterizes every single environmental policy area, from atmospheric, air, water, and soil pollution to biodiversity protection, forestry and fisheries management, waste control, and the control of environmental risks relating to new technologies. Their prominence has altered the legal landscape and kindled the production of a prolific, innovative stream of research that focuses, particularly, on the interactive qualities of law-making and administration, and on the role of non-state actors in the ongoing development of environmental law.29 This vibrant interest in transnational networks begs the question whether the state and national law are still relevant entities when it comes to understanding contemporary 26 A.-M. Slaughter, ‘Global Government Networks’ (2003) 24 Michigan Journal of International Law 1048–9; C. Scott, ‘ “Transnational Law” as Proto-Concept: Three Conceptions’ (2009) German Law Journal 867. 27 Slaughter, ‘Global Governance Networks’, at 1051–3. 28 J. F. Green, ‘Order out of Chaos: Public and Private Rules for Managing Carbon’ (2013) 13(2) Global Environmental Politics 2. See also A.-M. Slaughter and D. Zaring, ‘Networking Goes International: An Update’ (2006) 2 Annual Review of Law and Social Science 211–29. 29 See e.g. the range of publications in Transnational Environmental Law (TEL). TEL’s website describes the journal in the following terms: ‘a peer-reviewed journal for the study of environmental law and governance beyond the state. It approaches legal and regulatory developments with an interest in the contribution of non-state actors and an awareness of the multi-level governance context in which contemporary environmental law unfolds’. See https://www.cambridge.org/core/journals/transnationalenvironmental-law.

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transnational networks 775 environmental governance. Relatedly, some might question whether transnational networks are likely to endure in today’s rapidly changing geopolitical landscape. The next paragraphs briefly address these questions. The rise of transnational networks does not marginalize the state or erode the importance of national law in the pursuit of environmental objectives. First, although the impact of transnational environmental governance is felt across the globe, it is more prominent in some regions than others. There is, admittedly, a Eurocentric bent to the framing of environmental law as a transnational phenomenon. Compared to EU countries, the proportion of, for instance, US law that directly interacts with or derives from international or regional law is considerably smaller. US law- and policy-makers, researchers, and practitioners are far more likely to characterize environmental law as a primarily national discipline, and to qualify transnational developments as ancillary to the main event. Secondly, experience with transnational networks strongly indicates that they do not displace but rather reconfigure and re-channel state power. EU environmental directives, for example, are the product of intense cooperation between EU and national public authorities, at the stage of their conceptualization as well as their enactment, implementation, and even enforcement.30 Many transnational private regulatory initiatives, in turn, develop ‘in the shadow of ’ the state, whereby the threat of impending, stringent, and mandatory environmental standards pushes the private sector towards self-regulation.31 Additionally, transnational networks frequently use national legal regimes as anchoring points for their own initiatives, and prescribe full compliance with national law as a minimum condition for participation.32 Moreover, national public authorities often actively support the establishment of transnational networks and consider them as one in a range of strategies to pursue both international and domestic environmental objectives.33 In sum, the role of the state and of national law changes within a transnational context, but it would be reductionist to equate change with diminished relevance. As to future developments, transnational environmental networks will in all likelihood persist and even proliferate further. In my opinion, this remains the most plausible prediction even as the current geopolitical mood reflects a strong discontent with globalization, which is a key catalyst of transnational governance, and a reversal in some countries to nationalism and protectionism. While specific arrangements and constellations inevitably evolve and some will founder, the transnational environmental network structure has reached a level of penetration and maturity that bestows upon it a considerable degree of resilience in the short and medium term. Moreover, the range and variety of transnational networks makes them adaptive in the face of geopolitical shifts. For example, it is indeed profoundly unlikely that the US Trump administration will be interacting intensely with intergovernmental environmental organizations in the pursuit of internationally agreed environmental targets, let alone provide impetus for the adoption of additional multilateral 30 S. Kingston, V. Heyvaert, and A. Čavoški, European Environmental Law (Cambridge: Cambridge University Press, 2017), 39. 31 Cf. T. A. Börzel and T. Risse, ‘Governance Without a State: Can it Work?’ (2010) 4(1) Regulation & Governance 115–18. 32 D. Vogel, ‘The Private Regulation of Global Corporate Conduct: Achievements and Limitations’ (2010) 49(1) Business & Society 69. 33 T. L. Lewis, ‘Transnational Conservation Movement Organizations: Shaping the Protected Area Systems of Less Developed Countries’ (2000) 5(1) Mobilization: An International Journal 103–21.

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776 veerle heyvaert agreements. Yet this does not necessarily imply that American corporations or civil society organizations will be equally reluctant to contribute to the development of environmental governance regimes across borders. In fact, it might incentivize non-state actors to strengthen their involvement in transnational initiatives. In the EU context, Brexit will alter the terms of engagement between the United Kingdom and the EU on issues such as environmental standardization, but it is highly unlikely to dampen British manufacturers’ interest in legal approximation, either within the EU sphere or beyond.34 Moreover, even in the unlikely occurrence of a downturn in global trade overall, environmental threats remain inescapably transboundary. For these reasons, it is difficult to conceive of a future in environmental law and governance without a strong role for transnational networks.

34.3 Mapping Transnational Environmental Networks 34.3.1 Introduction Any comparative analysis demands at least two subjects. Moreover, for comparisons to yield instructive results, the comparators generally must have a reasonable degree of similarity.35 Studying environmental constitutional reform in one regime has little comparative relevance when the second study subject is a structure that does not operate under the auspices of a set of overarching and directive general principles which could potentially be reformed. These two considerations rarely pose an impediment to country-by-country legal studies, but they do challenge the extension of comparative analysis to the transnational legal sphere. Environmental governance regimes such as MEAs, EU environmental law, or transnational private governance regimes are easily labelled as unique or sui generis,36 which captures their specialness but complicates their position within comparative environmental law. The aim of this section is to develop a mapping approach that may facilitate the inclusion of transnational networks in comparative analyses. The proposed methodology organizes the field with reference to two parameters: the public or private status of the governing entities in the network; and the public or private status of the entities whose behaviour the governance structure seeks to steer. This organizes the field into five cohorts of t ransnational networks: public/public; public/private; private/public; private/private; and hybrid. The categories are further explained and illustrated in the remainder of this section.37

34 Heyvaert and Čavoški, ‘UK Environmental Law Post Brexit’. 35 Cf. D. J. Gerber, ‘Comparative Law and Global Regulatory Convergence: The Example of Competition Law’ in M. Adams and J. Bomhoff (eds.), Practice and Theory in Comparative Law (Cambridge: Cambridge University Press, 2012), 124–5. 36 e.g. L. A. Ionita, ‘Is European Union Law a Fully Self-Contained Regime? A Theoretical Inquiry of the Functional Legal Regimes in the Context of Fragmentation of International Law’ (2015) 15(1) Studia Politica 39–59. 37 See also V. Heyvaert, Transnational Environmental Regulation and Governance. Purpose, Strategies and Principles (Cambridge: Cambridge University Press, 2019) 37–49.

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transnational networks 777 The public/private distinction is one of several possible approaches towards organizing the field of transnational environmental networks. Alternatively, transnational networks might be listed thematically, grouping together climate change regimes, fisheries initiatives, oil pollution frameworks, and so on. Or, transnational networks could be classified on the basis of the regulatory strategies they favour, for example, distinguishing networks that rely on command-and-control regulation from those that deploy incentive-based strategies and others that generate principle-based regulation. Each approach has strengths and weaknesses, but two factors arguably give the dual public/private distinction approach the edge. First, it offers a stable and comprehensive categorization in that any transnational network can be housed into one of the five categories. Secondly, the resulting categorizations correlate quite well with a number of additional features on the basis of which environmental law and governance regimes could be distinguished, such as the motivation for developing the regime, and the approach to standardization. The correlations certainly do not amount to a full match, but they do help to enhance the cohesion within each group and help to inform and structure intra- or inter-group comparisons.

34.3.2 Public/Public Networks The public/public category houses those transnational networks that both emanate from and are addressed to public authorities. They include both networks in which states feature as the main governing and governed entities, and networks managed by or addressed to public authorities other than national governments. A first and very prominent group of examples of public/public networks are MEAs. For instance, Article IV of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters (London Convention)38 addresses its signatory states with a demand to prohibit the dumping at sea of ‘any wastes or other matter in whatever form’. Article 4(1) of the Minamata Convention on Mercury39 orders its member countries to ban the manufacture and trade in mercury-added products. Often, international agreements will call for the establishment of transnational commissions or committees that assume regulatory powers to implement the general treaty-based environmental objectives. For instance, Article 6 of the Southern Bluefin Tuna Convention (SBT Convention)40 establishes the Commission for the Conservation of SBT, which annually sets the Total Allowable Catch for each of the signatory states.41 Students of EU environmental law, too, are thoroughly familiar with the public/public variant of transnational structures. EU environmental Directives, covering issues from ambient air quality to wild birds,42 typically contain a high 38 London (United Kingdom), 29 December 1972, in force 30 August 1975, available at: http://www. imo.org/en/OurWork/Environment/LCLP/Documents/LC1972.pdf. 39 Geneva (Switzerland), 19 January 2013, in force 16 August 2017, available at: http://www. mercuryconvention.org. 40 Canberra (Australia), 10 May 1993, in force 20 May 1994 (SBT Convention), available at: http:// www.ccsbt.org/userfiles/file/docs_english/basic_documents/convention.pdf. 41 H. S. Schiffman and B. P. MacPhee, ‘The Southern Bluefin Tuna Dispute Revisited: How Far Have We Come?’ (2014) 3(2) Transnational Environmental Law 395–6. 42 Directive 2008/50/EC on ambient air quality and cleaner air for Europe [2008] OJ L152/1; Directive 2009/147/EC on the conservation of wild birds (codified version) [2010] OJ L20/7.

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778 veerle heyvaert quotient of prescription directed at the Member States, which are charged with either maintaining or, much more frequently, modifying their regulatory regimes to achieve the Directive’s environmental protection targets. International conventions and EU law yield the most familiar examples of public/public networks, but there are many others. In the past two decades, several non-European regional associations have expanded their remit to include environmental protection, and they increasingly expect their member states to achieve collective agreed environmental targets. The Association of South East Asian Nations (ASEAN), for one, has significantly expanded its environmental agenda. It has developed a range of instruments in the areas of biodiversity, wildlife protection, and climate change that will promote regulatory reform and convergence within the region.43 Within the Asia-Pacific Economic Cooperation Mechanism (APEC), too, awareness is growing that its attempts at economic integration must be complemented by enhanced cooperation on environmental policy.44 In Africa, cooperative networks such as the Southern African Development Community (SADC) foster the adoption of cooperative frameworks to further environmental protection and sustainable management of collective natural resources.45 One such framework is the Revised Protocol on Shared Watercourses which, inter alia, introduces requirements of notification and consultation between countries in the Southern African region on measures that may affect the condition of a shared watercourse.46 Given the predicted intensification of regional cooperation and agreement,47 it is important to be aware of this growth sector in transnational networks. Public/public networks that have a high level of state involvement, as illustrated in the preceding examples, are typically formed to overcome collective action problems and address transboundary environmental issues such as the management of shared waterways or the achievement of acceptable air quality.48 As the governance instruments developed within the network are also primarily addressed to states, they tend to rely heavily on broadly framed, principle-based standard setting and metaregulation.49 However, states are not the only public entities that pursue environmental governance through transnational networks. The EU environmental legal regime, for one, is co-determined by at least two public entities that are non-state actors: the European Commission, and the 43 K. Kheng Lian, ‘Transboundary and Global Environmental Issues: the Role of ASEAN’ (2012) 1(1) Transnational Environmental Law 67–82. 44 A. Ivanova and M. Angeles, ‘Trade and Environment Issues in APEC’ (2006) 43(4) The Social Science Journal 629. 45 A. Crircop et al., ‘Governance of Marine Protected Areas in East Africa: A Comparative Study of Mozambique, South Africa, and Tanzania’ (2010) 41(1) Ocean Development & International Law 1–33, at 7. 46 Windhoek (South Africa), 7 August 200, in force 22 September 2003, available at: http://www.sadc. int/files/3413/6698/6218/Revised_Protocol_on_Shared_Watercourses_-_2000_-_English.pdf. 47 G. Suder, ‘Regional Trade Agreements and Regionalisation: Motivations and Limits of a Global Phenomenon’ (2013) 4(1) ANU Centre for European Studies Briefing Paper Series, available at: http://ces. anu.edu.au/research/publications/regional-trade-agreements-and-regionalisation-motivations-andlimits-global-ph. 48 K. Holzinger, C. Knill, and T. Sommerer, ‘Environmental Policy Convergence: The Impact of International Harmonization, Transnational Communication, and Regulatory Competition’ (2008) 62(4) International Organization 554. 49 See R. Baldwin, M. Cave, and M. Lodge, Understanding Regulation (Oxford: Oxford University Press, 2nd edn. 2012), 146–57 and 302–10.

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transnational networks 779 European Parliament. Other public/public networks with a more ‘mixed’ character include initiatives such as the FLEGT Facility, which stands for Forest Law Enforcement, Governance and Trade.50 FLEGT’s mission is to prevent exports of illegally logged wood. To this end, the European Commission negotiates Voluntary Partnership Agreements (VPAs) with developing countries to create export licensing regimes. Licensing operates on the basis of jointly defined standards, requirements for monitoring and performance review, and third party verification. In exchange for developing countries’ VPA commitments, the FLEGT Facility offers capacity building and development assistance.51 The Covenant of Mayors for Energy and Climate Change offers yet another example of a complex public/public network involving authorities other than national governments. The signatories to the Covenant are cities and towns which, by virtue of their accession, commit to increasing energy efficiency and use of renewable energy sources on their territories.52 In practical terms, this requires the signatories to develop a baseline emission inventory (with 1990 as the recommended but not compulsory baseline). Within one year of accession, signatories are expected to submit a Strategic Energy Action Plan (SEAP), which maps the different approaches and policies that the town or city intends to implement to achieve its minimum 20 per cent reduction target. Additionally, participating towns and cities are expected to submit regular implementation reports. The European Commission developed and now administers the programme.53 It is in charge of facilitating, supervising, and, where necessary, policing compliance with the Covenant’s prescriptions. In exchange for participation, cities and towns gain access to expertise and funding opportunities, they become part of an extensive information exchange and support network, and are able to give their green credentials a substantial boost.54 Transnational public/public networks also flourish outside the EU context. In the field of climate change, particularly, initiatives such as the Regional Greenhouse Gas Initiative (RGGI), the Western Climate Initiative (WCI), Local Governments for Sustainability (ICLEI), and World Cities Network are steadily expanding their agenda to include a broader range of steering and standard-setting activities. This is overtly the case for RGGI, which developed a mandatory cap-and-trade programme for GHG emissions.55 At present, participation in the RGGI emissions trading system is limited to nine US-based states, but several Canadian provinces have observer status.56 WCI is a non-profit and, hence, strictly speaking a private organization.57 However, its board members are officials from Quebec, British Columbia, and the state of California, and its mission is to support the implementation of state and provincial greenhouse gas emissions trading programmes. WCI is responsible for the management of allowance auctioning and for compliance monitoring. It thus plays 50 On the FLEGT initiative see: http://www.euflegt.efi.int/about-flegt. 51 C. Overdevest and J. Zeitlin, ‘Assembling an Experimentalist Regime: Transnational Governance Interactions in the Forest Sector’ (2014) 4(1) Regulation & Governance 28. 52 Information available at: http://www.eumayors.eu/index_en.html. 53 P. Ballesteros Torres and R. Doubrava, ‘The Covenant of Mayors: Cities Leading the Fight Against the Climate Change’ in M. Van Staden and F. Musco (eds.), Local Governments and Climate Change (xxx: Springer, 2010), 91–8. 54 Heyvaert, ‘What’s in a Name’, at 82. 55 Andonova et al., ‘Transnational Climate Governance’, at 65. 56 Information available at the RGGI website at: http://www.rggi.org/. 57 Information available at the WCI website at: http://www.wci-inc.org/.

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780 veerle heyvaert a key role in securing the effectiveness of climate change regulation in parts of Canada and the United States. Transnational public/public networks that connect a variety of public authorities are often launched with a primarily facilitating role. Many aim to harness the ability of the players within the network to meet and even overshoot environmental targets, which might be self-imposed or legally mandated. They tend to rely on quasi-contractual arrangements to structure the network, and often foster relatively soft forms of harmonization, for instance, through the development of benchmarks and best practice models.

34.3.3 Public/Private Networks A second category of transnational networks are public/private. In contrast to the previous cohort, public/private networks eschew the intermediary of the state, region, or city and speak directly to the private sector. In recent years, public/private arrangements have become increasingly prominent in EU product risk regulation. The EU REACH Regulation, for example, addresses itself immediately to manufacturers and importers of chemicals and instructs them to register traded substances and products with the European Chemicals Agency (ECHA).58 National regulatory authorities retain facilitating and policing roles in this arrangement, which are certainly significant but do not change the fact that the channels of communication now flow directly between a transnational regulator and the private addressee. Similarly, the 2012 EU Biocides Regulation puts the Commission in charge of approving the use of active ingredients in biocidal products.59 Authorizations and refusals are directly addressed to the private company which produces or imports the biocide in question, and are challengeable before the Court of Justice of the EU (CJEU), rather than before the domestic judiciary.60 The application process moreover fosters the development of network structures which require a novel degree of coordination between transnational regulators, state authorities, and private regulatees. Pursuant to Article 9 of the Biocide Regulation, the applicant submits the request for approval to the European Chemicals Agency, accompanied by, first, a proposal for a candidate national competent authority to evaluate the application and, secondly, written proof that the competent authority has agreed to perform the evaluation. This aptly illustrates how relations between the public and private are constantly being reconfigured in the transnational legal sphere. At the United Nations (UN) level, too, a number of programmes interact directly with the private sector. The Global Compact, for example, is a UN-led initiative that encourages

58 Regulation (EC) No. 1907/2006 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 [2007] OJ L136/3. 59 Regulation (EU) No. 528/2012 concerning the making available on the market and use of biocidal products [2012] OJ L167/1. 60 See e.g. Case C-190/13P Rütgers Germany GmbH and Others v European Chemicals Agency (ECHA) ECLI:EU:C:2014:2174; C-287/13P Bilbaína de Alquitranes SA and Others v ECHA ECLI:EU:C:2014:599; and C-199/13P Polyelectrolyte Producers Group and Others v European Commission ECLI:EU:C:2014:205.

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transnational networks 781 businesses to adopt sustainable and corporate responsible practices.61 Acceding to the Compact signals an enterprise’s commitment to abide by the standards and sustainability targets of the Compact, and to comply with associated information disclosure requirements.62 The Compact’s structure is similar to that of the Covenant of Mayors for Energy and Climate Change, in that it is a voluntary membership scheme orchestrated and administered by supranational public entity at the behest of its signatories. A notable difference is that the Covenant is addressed to public actors (towns and cities), whereas the Compact has private businesses for signatories. As a final example, one of the most prominent exponents of government-led OECD measures directed at the private sector are the OECD Guidelines for Multinational Enterprises (OECD MNE Guidelines). The Guidelines are ‘far-reaching recommendations addressed by governments to multinational enterprises operating in or from adhering countries. They provide voluntary principles and standards for responsible business conduct in areas such as employment and industrial relations, human rights, environment, information disclosure, combating bribery, consumer interests, science and technology, competition, and taxation.’63 Transnational public/private networks develop in response to a variety of triggers, but particularly well-represented within this category are governance initiatives that pursue a dual purpose of environmental protection and trade facilitation. Consequently, regulatory strategies that are well-suited to achieve harmonization in environmental performance, such as the adoption of product standards, feature prominently in the context of public/ private networks.

34.3.4 Private/Private Networks The past decades have witnessed an explosive growth of environmental governance regimes run by the private sector for the private sector.64 Their membership is typically sectorally defined rather than confined to a national jurisdiction, and they trade on a high degree of informal authority. Many transnational private/private networks are schemes that essentially function as self-regulatory regimes within an industrial or service sector. Responsible Care in the chemicals sector is one such scheme.65 Its key role is to standardize health, safety, and environmental practices for chemicals manufacturing and professional use. The Global Sustainable Tourism Council (GSTC) is an example from the service sector. Its members are travel associations, tourism boards, and large operators, and its overarching mission is to arrive at a common understanding of sustainable tourism and develop a set of minimum criteria that every tourism business should uphold.66 Business-driven participation 61 Information available at the UN Global Compact website at: http://www.unglobalcompact.org.uk/. See also ‘More firms join UN sustainability initiative’ ENDS Europe Daily, 6 June 2012. 62 K. W. Abbott and D. Snidal, ‘Strengthening International Regulation through Transnational New Governance: Overcoming the Orchestration Deficit’ (2009) 42 Vanderbilt Journal of Transnational Law 506. 63 Quote from the OECD MNE website at: http://mneguidelines.oecd.org/about/. 64 M. Allen Eisner, ‘Private Environmental Governance in Hard Times: Markets for Virtue and the Dynamics of Regulatory Change’ (2011) 12(2) Theoretical Inquiries in Law 489–516. 65 C. Coglianese and E. Meldelson, ‘Meta-Regulation and Self-Regulation’ in R. Baldwin, M. Cave, and M. Lodge, Oxford Handbook of Regulation (Oxford: Oxford University Press, 2010), 155. 66 Information available at the GSTC website at: http://www.gstcouncil.org/.

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782 veerle heyvaert in sectoral self-regulation is can be seen as an expression of corporate social responsibility (CSR), which generally refers to companies taking responsibility for their impact on society.67 Private/private networks have flourished particularly in ‘heavy industry’ sectors with a history of environmental disasters and, correspondingly, a vulnerable public reputation. Self-regulation initiatives in extractive industries and in construction are cases in point. For example, the Initiative for Responsible Mining Assurance (IRMA) was set up to deliver a multi-stakeholder and independently verifiable responsible mining assurance system that purports to improve the social and environmental performance of the ever-controversial mining sector.68 Of a newer generation but equally controversial is shale gas extraction. Given the strong business interest in fracking, the myriad uncertainties surrounding its long-term impact and the pressure from well-organized civil society campaigning groups, it is unsurprising that the sector is deeply invested in developing private/private governance networks. The Centre for Sustainable Shale Development (CSSD) is an interesting example: its strategic partners include environmental organizations,69 philanthropic foundations,70 energy companies71 and other stakeholders.72 This multi-party collaboration’s professed aim is to develop and maintain sustainable shale gas exploitation standards. Increasingly, like-minded organizations in different countries are linking and developing networks. This multiplies opportunities for the transnational generation of environmental prescriptions and standards. The food industry, too, is known for its heavy environmental impact and its vulnerability to consumer opinion. Private/private networks in this sector range from large cross-sectoral programmes to governance regimes that focus on particular food groups. In the former category, the International Federation of Organic Agriculture Movements (IFOAM) targets private operators who want to use the IFOAM Global Organic Mark label. However, most of its activity concentrates on offering guidance to other private certification programmes, streamlining certification practices and pursuing the harmonization and equivalence of both private and publicly developed food standards.73 In the latter category, the Marine Stewardship Council (MSC) develops sustainable fishing standards and offers certification and labelling services to its members.74 Private/private networks are also revolutionizing conservation law. Forestry programmes such as the Forest Stewardship Council (FSC), the Programme for the Endorsement of Forest Certification (PEFC), and the Sustainable Forestry Initiative (SFI) offer similar, even competing schemes for sustainable forest management and wood harvesting, as well as widely recognized certification and labelling services.75 The previously mentioned MSC is 67 A. Cadbury, ‘Corporate Social Responsibility’ (2006) 1(1) Twenty-First Century Society: Journal of the Academy of Social Sciences 5–21. 68 Information available at the IRMA website at: http://www.responsiblemining.net/. 69 e.g. the Environmental Defense Fund (EDF) and Group Against Smog Pollution (GASP). 70 e.g. Citizens for Pennsylvania’s Future (PennFuture); the Benedum Foundation. 71 e.g. Chevron, Shell. 72 e.g. the Pennsylvania Environmental Council. Like many transnational networks, multi-stakeholder organizations such as CSSD are rarely ‘purely’ public or private in either authorship or audience. CSSD could therefore also be classified under the hybrid category. 73 Information available at the IFOAM website at: http://www.ifoam.org/en/node. 74 Information available at the MSC website at: http://www.msc.org/. 75 Information available at the FSC, PEFC, and FSI websites at: http://www.fsc-uk.org/; http://www. pefc.co.uk/; http://www.sfiprogram.org/. See also V. Heyvaert, ‘Regulatory Competition—Accounting for the Transnational Dimension of Environmental Regulation’ (2013) 25(1) Journal of Environmental Law 21.

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transnational networks 783 modelled on the FSC and seeks to do for seas and oceanic ecosystems what the FSC does for forests. The Rainforest Alliance targets the conservation of Brazilian rainforest biodiversity through the implementation of a combination of environmental, social, and fair trade standards to establish and maintain sustainable rainforest management practices. Its development of these multi-resource, holistic ecosystem-oriented meta-standards partly happens through in-house standardization, but the Alliance also recognizes and incorporates other privately developed environmental standards, such as the FSC standards.76 The proliferation of private environmental standard setting, certification, and labelling thus also s timulates the development of private regimes for the mutual recognition of externally produced private regulation. With it emerge new transnational legal conventions for the treatment and review of claims to equivalence.77 A last, very significant group of private/private networks concerns those programmes that address the financial and investment sector and seek to harness the regulatory potential of capital flows as communication devices between the public and the economy. Assuming pride of place among these are the Equator Principles, which are currently in their third iteration (EP III). EP III is a credit risk management framework for determining, assessing, and managing environmental and social risk in project finance transactions. Equator Principles Financial Institutions (EPFIs), which number eighty organisations located in thirty-four countries, commit to not providing loans to projects where the borrower will not or is unable to comply with their respective social and environmental policies and procedures.78 The Equator Principles are probably the best-known example of a banking and investment focused network, but there are many others, such as the Banking Environment Initiative,79 the FTSE4Good index,80 and the 2050 Criteria for Sustainable Commodities Investment.81 These organizations have different membership and operating procedures, but they all share a mission to promote and even compel environmentally sustainable industry and service provision by channelling investment and banking services.82 Transnational private/private networks generally arise out of a desire to manage the risks related to the absence or inadequacy of public, mandatory regulation. To parties such as environmental NGOs that are active within these networks, the key risks of under-regulation in this context are environmental pollution, unsustainable exploitation of natural resources, and related threats to the livelihood and well-being of local communities. Others conceive of the risks mostly in terms of the reputational, financial, and legal risks to which under-regulated industrial sectors are exposed, or are mostly interested to stave off future, potentially more 76 Information available at the Rainforest Alliance website at: http://www.rainforest-alliance.org/. 77 K. Nicolaidis and G. Shaffer, ‘Transnational Mutual Recognition Regimes: Governance Without Global Government’ (2005) 68 Law & Contemporary Problems 263–318. 78 Information available at the EP website at: http://www.equator-principles.com/. 79 Information available at the Cambridge Institute for Sustainability Leadership website at: http:// www.cisl.cam.ac.uk/Business-Platforms/Banking-Environment-Initiative.aspx. 80 Information available at the FTSE Russell website at: http://www.ftse.com/products/indices/ FTSE4Good. 81 Information available at the World Wide Fund for Nature (WWF) website at: https://www. worldwildlife.org/publications/the-2050-criteria-guide-to-responsible-investment-in-agriculturalforest-and-seafood-commodities. 82 Cf. R. Slager, J.-P. Gond, and J. Moon, ‘Standardization as Institutional Work: The Regulatory Power of a Responsible Investment Standard’ (2012) 33(5/6) Organization Studies 763–90.

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784 veerle heyvaert restrictive and intrusive mandatory regulation. Managing the latter c ategory of risks tends to be a key agenda point for the for-profit, entrepreneurial members of transnational networks. Private/private networks tends to rely heavily on standardization and certification strategies as governance instruments, with a stronger proportion of process-oriented standards than is typically found in the context of public/private networks.

34.3.5 Private/Public Networks Just as examples of public/private networks are less plentiful than the near countless number of public/public networks, we find far fewer instances of private/public networks than of private/private ones. Transnational environmental regulators, it transpires, chiefly communicate with similarly situated addressees. Nevertheless, in some cases private governance regimes do steer the behaviour of public authorities. This happens when private environmental standards become so successful that public authorities decide to formally join in or de facto abide by them. Errol Meidinger discusses this phenomenon with respect to the FSC. He observes that several municipalities and countries have adopted procurement policies that track FSC requirements. Some have had publicly owned forests FSC certified; others have made certification a condition for lawfully conducting forestry in the country, and others still have essentially cut and pasted the FSC standards into national legislation.83 In a similar vein, the work of European (private) standardization bodies became a legally relevant benchmark under the EU’s New Approach to Harmonisation.84 Products and services conforming to standards issued by CEN, CENELEC, or ETSI are presumed in conformity with EU law, which shifts the burden of proof onto any entity questioning their lawfulness to be traded on the EU internal market.85 The case of the Globally Harmonised System for chemicals classification and labelling goes one step further as the EU formally incorporated this set of voluntary standards, developed under the auspices of the OECD by a combination of private and public sector representatives, in EU law.86 Finally, one of the most intriguing developments in the sphere of private/public transnational networks involves the indirect regulation of public authorities via private certification. In a recent analysis of transnational fisheries regulation, Markus Karavias discusses the case of the Maldives Seafood Processors and Exporters Association (MSPEA), which aimed to have its pole-and-line skipjack tuna fishery certified by the MSC. The MSC conditionalized certification on compliance with a number of requirements, some of which were addressed to the MSPEA but including others that could only be met by the Maldives state authorities. In particular, the MSC conditions included a requirement that, within five years 83 E. Meidinger, ‘Beyond Westphalia. Competitive Legalisation in Emerging Transnational Regulatory systems’ in C. Bruetsch and D. Lehmkuhl, Law and Legalization in Transnational Relations (London: Routledge, 2007), 131. 84 Council Resolution 85/C 136/01 of 7 May 1985 on a new approach to technical harmonization and standards [1985] OJ C136/1. 85 J. Pelkmans, ‘The New Approach to Technical Harmonization and Standardization’ (1987) 25(3) Journal of Common Market Studies 249–69. 86 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.

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transnational networks 785 of certification, the Maldives state would have successfully promoted the adoption of harvest control rules by the intergovernmental Indian Ocean Tuna Commission (IOTC).87 This MSC requirement ultimately led to the adoption of IOTC Resolution 16/02.88 In sum, private/public networks form when public authorities incorporate, accede to, or are indirectly annexed in private/private networks. The examples aptly illustrate a widespread phenomenon affecting transnational networks: as they mature, their membership diversifies and their organization structure becomes more elaborate and complex. In some cases, the qualities of diversification and complexity become so pronounced that they arguably constitute the network’s most defining characteristic. The final category below offers illustrations of such complex, hybrid networks.

34.3.6 Hybrid Networks Governance networks inevitably depend on some combination of public and private engagement to acquire the content, traction, and credibility that is constitutive of legal and regulatory authority. Moreover, arrangements evolve. What starts as a private initiative may catch the attention of government officials. Over time, transnational public authorities may get more opportunities to skip the national regulatory middle man and address themselves directly to the private sector. It is therefore likely that, over time, hybrid networks will become the norm rather than the exception in the governance landscape. Several earlier examples of transnational networks have clear hybrid features, such as the Covenant of Mayors for Climate and Energy,89 the Forest Stewardship Council, and the Centre for Sustainable Shale Development. In fact, in certain networks public and private actors have become so entangled that they defy categorization under either a ‘public’ or ‘private’ heading. These are referred to as hybrid networks, or as constituting a ‘regime complex’.90 The EU is involved in various hybrid networks to pursue environmental goals. EU oil rig safety regulation, for example, effectively relies on a mixture of EU legislation and industry initiatives to function.91 Corporate and social responsibility, which started as a private-led initiative, is now sanctioned and undergirded by a European Commission policy.92 Beyond the EU, hybrid network structures have been prominent in climate change governance. The Chicago Climate Exchange, for instance, is a voluntary cap-and-trade programme that counts states, provinces, and countries, as well as businesses, banks, and NGOs among its 87 M. Karavias, ‘Interactions between International Law and Private Fisheries Certification’ (2018) 7(1) Transnational Environmental Law 165–184. 88 Resolution 16/02, ‘On Harvest Control Rules for Skipjack Tuna in the IOTC Area of Competence, IOTC, 26 November 2016, available at: http://www.iotc.org/cmm/resolution-1602-harvest-control-rulesskipjack-tuna-iotc-area-competence. 89 The Covenant of Mayors relies extensively on the involvement of private funding organizations. Non-governmental bodies, such as the Italian Fondazione Cariplo, condition the award of grants to towns and cities upon compliance with the Covenant’s requirements. Heyvaert, ‘What’s in a Name’, at 82. 90 C. Overdevest and J. Zeitlin, ‘Assembling an Experimentalist Regime: Transnational Governance Interactions in the Forest Sector’ (2014) 4(1) Regulation & Governance 28. 91 ‘EU seeks industry assurances over oil rig safety’ ENDS Europe Daily, 11 May 2010. 92 Information available at the European Commission website at: http://ec.europa.eu/enterprise/ policies/sustainable-business/corporate-social-responsibility/index_en.htm.

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786 veerle heyvaert signatories.93 In the field of food safety, the Codex Alimentarius Commission (CAC) has seen both its authorship and its audience evolve. At its inception, the CAC was organized as a transnational public/private network. Its membership was (and continues to be) open to Member Nations and Associate Members of the UN Food and Argiculture Organization and the World Health Organisation, as well as to regional economic integration organizations.94 Initially, CAC food standards were targeted at the private sector. Yet over time, both the participation in CAC standard setting and the use of resulting CAC standards have diversified. Private interest groups affected by a standard in development will often submit information to the CAC expert committees, and may be consulted by their national governments on the resulting draft standard. A number of member governments include civil society and business representatives in their delegations, and some NGOs have been granted Observer status. On the addressees’ side, not only food producers but also national governments as well as international organizations, such as the World Trade Organization (WTO), increasingly deploy CAC standards as benchmarks for compatibility with domestic or international food safety law.95 Hence, the CAC has transformed from a public/private arrangement into a hybrid transnational network. The advantage of designating a transnational environmental network as ‘hybrid’ is that this effectively conveys the complexity of the network structure. Less advantageous is that the term is opaque as to which characteristics such networks are likely to share. In any event, given the range and variation in hybrid networks, there are fewer overlapping features to be identified. However, a few do stand out. A fair proportion of hybrid networks chiefly functions to enhance pre-existing environmental governance regimes. Hybrid networks often display annexation strategies whereby one framework becomes a point of reference within a broader governance structure, and many rely heavily on suasive rather than prescriptive approaches to standardization.

34.4 Transnational Networks in Comparative Environmental Law: Facing the Challenges The integration of transnational networks into the landscape of comparative environmental law poses a number of challenges to comparativists and environmental lawyers alike, but arguably creates even more opportunities to advance both fields. On first reflection, the deeply transnational nature of environmental law and governance could provoke a comparativist existential crisis, as it problematizes the reality of a genuine 93 Information available at: https://www.theice.com/ccx. See Andonova et al., ‘Transnational Climate Governance’, at 62. 94 Information available at the CAC website at: http://www.codexalimentarius.org/membersobservers/en/. 95 A. Herwig, ‘The Contribution of Global Administrative Law to Enhancing the Legitimacy of the Codex Alimentarius Commission’ in O. Dilling, M. Herberg, and G. Winter (eds.), Transnational Administrative Rule-Making. Performance, Legal Effects and Legitimacy (Oxford: Hart Publishing, 2011), 171.

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transnational networks 787 national environmental legal patrimonium to which environmental legal arrangements in other states can be fruitfully compared.96 A ban on the manufacture and sale of CFCs tells you little about a particular country’s preferred regulatory environmental strategies if it is the implementation of an international treaty obligation.97 Nevertheless, reports of comparative environmental law’s demise at the hands of globalization would be drastically premature. In the first place, it is important to reiterate earlier observations regarding the uneven intensity of transnationalization; it is much more prominent in, for example, the Republic of Ireland than in China. Secondly, just as transnational environmental governance transforms more than it diminishes national authority, so too does legal transnationalization reshape rather than replace national law. Students of EU law will know that the introduction of EU principles and rules has given rise to a host of new domestic legal practices. For instance, the famous preliminary reference procedure, which enables and in some cases compels national courts to request the European Court of Justice to deliver a determinative answer regarding the interpretation or validity of EU law,98 does not just strip away national courts’ interpretative power. It has also led to the development of new judicial rules and practices on matters ranging from the determination as to whether references should be made, to the appropriate ways of interpreting and applying preliminary rulings.99 These new rules and practices, too, form part of the domestic legal patrimonium and can be productively compared. Hence, the transnational character of environmental law, and the expected proliferation of transnational networks, may shift the focus but will not erode the relevance of comparative studies. In fact, it may help to sharpen comparative analyses. One of the difficulties of comparing legal regimes is the wealth of factors that influence legal outcomes, from sweeping differences such as a civil versus common law context to variation in the minutiae of administrative process. Hence, determining why legal outcomes differ is a fraught process, and the complexity of the task arguably contributes to keeping the discipline in the safer but shallower waters of ‘side-by-side’ discussions with limited actual comparison. The existence of a broad layer of transnational, connective legal tissue can reduce the number of variables that comparativists need to contend with, and may consequently facilitate the identification of causal links between, for instance, a particular institutional choice and a broader or narrower application of a transnational legal rule. In addition to altering the way in which comparativists approach national environmental regimes, transnational networks expand the field as additional focal points of analysis that can be compared with either other transnational networks or with national governance structures. For instance, researchers could compare the interpretation of environmental 96 P. Zumbansen, ‘Transnational Comparisons: Theory and Practice of Comparative Law as a Critique of Global Governance’ in Adams and Bomhoff, Practice and Theory, at 189. 97 Vienna Convention for the Protection of the Ozone Layer, Vienna (Austria), 22 March 1985, in force 22 September 1988, available at: http://ozone.unep.org/en/handbook-vienna-convention-protectionozone-layer/2205. 98 C. O. Lenz, ‘The Role and Mechanism of the Preliminary Reference Procedure’ (1994) 18(2) Fordham International Law Journal 388–409. 99 See M. Broberg and N. Fenger, Preliminary References to the European Court of Justice (Oxford: Oxford University Press, 2010); V. Heyvaert, J. Thornton, and R. Drabble, ‘With Reference to the Environment: The Preliminary Reference Procedure, Environmental Decisions and the Domestic Judiciary’ (2014) 130 Law Quarterly Review 413–42.

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788 veerle heyvaert principles such as ‘sustainable development’ or ‘common but differentiated responsibilities’ in the UNFCCC with their application in the context of the Chicago Climate Exchange,100 or they might study the treatment of scientific expertise in regulatory decision-making within a particular jurisdiction and in a transnational network. In so doing, the research community will need to face at least two important challenges. A first, pivotal challenge for comparative environmental law in the transnational era is that, in embracing transnational networks as constitutive elements of environmental law and governance, the discipline must confront transnational law’s defining ontological question. Beyond the safe harbours of the nation-state, any certainty of what constitutes law, and can therefore serve as subject of a comparative legal analysis, quickly evaporates. As developed in greater detail elsewhere,101 transnational networks generate structures and content that eschew binary classification as either law or ‘not law’. As it engages with the transnational sphere, comparative environmental law therefore must develop its own understanding of how it defines and identifies law and how to distinguish legal from nonlegal networks. There is ample support available for such endeavour—law and anthropology studies have long dealt with the existence of ‘non-state’ law, there is a burgeoning body of transnational legal theoretical scholarship to refer to, as well as a wealth of insights from environmental governance studies to draw inspiration from,102 but ultimately comparative environmental law needs to construct its own workable vision of the breadth and meaning of environmental law in today’s (post-)globalized world. A second important challenge for comparative studies that focus on different networks, or on a combination of networks and national regimes, will be to move beyond the predictable conclusion that ‘different regimes do things differently’ and draw constructive lessons from the comparative investigation. To this end, it is necessary for the discipline to develop a keen awareness of the scope for and limits to the transferability of norms, structures, and strategies from one regime to another. For example, the interpretative freedom of national regulatory authorities in determining the meaning of sustainable development might be more constrained by constitutional or administrative court rulings than that of regulators operating within private/private networks, which would affect the usefulness of any admonition for national regulators to espouse alternative approaches to interpreting sustainability. A fuller understanding of the normative, institutional, and social context in which transnational networks operate will be vital to ensure that lessons drawn from comparative analysis are sufficiently informed and reliable to be instructive. The mapping exercise in the preceding section constitutes a step towards enriching such insights, and could constitute the basis for further study. In sum, a full engagement with the transnational nature of environmental law in comparative legal study will require more in-depth analysis of transnational legal regimes, methodological advancement, and a considerable degree of (self-)reflection. However, the 100 Cf. P. Castro, ‘Common but Differentiated Responsibilities Beyond the Nation State: How is Differential Treatment Addressed in Transnational Climate Governance Initiatives?’ (2016) 5(2) Transnational Environmental Law 379–400. 101 Heyvaert, ‘The Transnationalization of Law’. 102 See e.g. T. C. Halliday and G. Shaffer, ‘Researching Transnational Legal Orders’ in Halliday and Shaffer (eds.), Transnational Legal Orders (Cambridge: Cambridge University Press, 2015), 475–518; B. Z. Tamanaha, ‘A Non-Essentialist Version of Legal Pluralism’ (2000) 27(2) Journal of Law & Society 296–321; P. Shiff Berman, ‘Global Legal Pluralism’ (2007) 80 Southern California Law Review 1155–238.

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transnational networks 789 field could become all the richer for it, equipped with a host of new comparators, better strategies to maximize the instructive potential of comparative studies, and a better articulated understanding of what constitutes law within a comparative context.

34.5 Concluding Remarks Comparative studies can serve a host of different purposes. Some are undertaken purely to get a sense of the similarities and differences between different legal regimes, others to obtain an overview of the full range of possible legal techniques to resolve particular social conflicts, or to test the causality between certain legal provisions and a set of social outcomes. Other comparative studies aim to guide researchers towards the most efficient, or the most legitimate, legal responses to major social challenges. Given the scale and intensity of contemporary environmental risks, the latter is a particularly attractive comparative function in the context of environmental law. However, to maximize the potential of the comparative approach as a tool towards enhancing the effectiveness of environmental law and governance, it is important that comparativists build on a representative understanding of the nature and dynamics of environmental governance today. This requires an intensified engagement with transnational environmental networks, both as variables and as comparators in their own right. The intellectual challenges that such engagement represents are undeniable, but so too are the rewards as it can ensure the continued and even growing relevance of comparative law in the era of transnationalism.

34.6 Select Bibliography Abbott, K. W., ‘Strengthening the Transnational Regime Complex for Climate Change’ (2014) 3(1) Transnational Environmental Law 57–88. Bulkeley, H. et al., Transnational Climate Change Governance (Cambridge: Cambridge University Press, 2014). Dilling, O., M. Herberg, and G. Winter (eds.), Transnational Administrative Rule-Making. Performance, Legal Effects and Legitimacy (Oxford: Hart Publishing, 2011). Green, J. F., Rethinking Private Authority. Agents and Entrepreneurs in Global Environmental Governance (Princeton and Oxford: Princeton University Press, 2014). Hale, T. and D. Held (eds.), Handbook of Transnational Governance: Institutions and Innovations (xxx: Polity Press, 2011). Halliday, T. C. and G. Shaffer (eds.), Transnational Legal Orders (Cambridge: Cambridge University Press, 2015). Heyvaert, V., Transnational Environmental Regulation and Governance. Purpose, Strategies and Principles (Cambridge: Cambridge University Press, 2019). Raustiala, K., ‘The Architecture of International Cooperation: Transgovernmental Networks and the Future of International Law’ (2002) 43(1) Virginia Journal of International Law 1–91. Slaughter, A.-M., A New World Order (Princeton: Princeton University Press, 2004).

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chapter 35

A dj u dication Systems Emma Lees

35.1 Overview

790

35.2 The Role of the Judiciary and its Place Within the Context of Value-driven Decision-making

792

35.3 Responses to the Challenges of Environmental Litigation

793

35.4 Adjudicative Models 796 35.4.1 Introduction796 798 35.4.2 Jurisdictional Specialization 799 35.4.3 Judicial Specialization 800 35.4.4 Scope and Hierarchy of the Court’s Review 802 35.4.5 Specialist Costs and Standing Rules 805 35.4.6 Access to Legal and Scientific Advice 806 35.4.7 Bespoke Solutions to Environmental Adjudication 35.5 Concluding Remarks

807

Annex—Visual Representation of Different Adjudicative Models

808

35.6 Acknowledgements

810

35.7 Select Bibliography

810

35.1 Overview When considering adjudication systems for environmental disputes, the most obvious fault line for comparison is the existence or otherwise of a specialist judicial adjudicator in the form of an environmental court or tribunal. Indeed, this distinction has been extensively covered in the literature,1 and there are strong arguments for such a specialist judiciary, 1 N. A. Robinson, ‘Ensuring Access to Justice Through Environmental Courts’ (2012) 29 Pace Environmental Law Review 363; D. Kaniaru, ‘Environmental Tribunals as a Mechanism for Settling Disputes’ (2007) 37 Environmental Policy and Law 459; G. Pring and C. Pring, ‘Specialized Environmental Courts

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adjudication systems 791 equipped to deal with environmental issues, and supported by special cost and standing rules to reflect the public interest nature of much environmental litigation thereby addressed.2 However, this is not the only parameter within which state responses to the question of environmental adjudication can vary, and to focus only on this element of the possible adjudicatory models is to (a) oversimplify and (b) underestimate the environmental value and importance of general courts, whilst simultaneously giving the symbolic presence of the specialist court a weight that, in practice, it may not warrant, where other, equally important, elements of successful environmental adjudication are missing. To understand the different models of environmental adjudication, therefore, it is necessary to go beyond this binary classification. Indeed, this chapter will argue that there are in fact three fundamental choices to be made, which are critical in determining the relationship between the judiciary, public decision-makers, scientific and expert advisers, and private parties, and therefore in shaping the process of adjudication. First, it is impossible to ignore the general/specialist distinction and this is an important element in the overall shape of an adjudication model. In this respect, by specialized, is meant jurisdictional rules which direct all, or a sub-set of, environmental cases to a court with a consistent panel of specially trained judges. Thus, is it possible for a court to be jurisdictionally specialized,3 to have judicial specialization, or both. Second, the distinction between supervisory jurisdiction (in the manner of judicial review) and original decision-making jurisdiction (whereby the court is able to remake an administrative decision) is important for the operation of environmental adjudication, whether or not the court is specialized. It will be even more significant if the court has power to set aside or modify primary or secondary legislation and as such the environmental attitudes of constitutional courts can be just as critical as the approach of a specialized court. Finally, the degree to which the relevant court, even if not specialized, has special rules on costs and standing for environmental cases is key to its success and to the degree to which the court can be said to comply with the principles of access to environmental justice. The range of choices which can be made across these parameters is demonstrated in the visualizations of selected court systems in the Annex at the end of the chapter. The ‘quality’ of substantive environmental adjudication and the degree to which environmental values are prioritized in the decision-making process, is determined, for the most part, not by the type of court, nor the adjudication system/process, but by the substantive standards in place within the relevant state. This much is uncontroversial. Courts play a ‘supporting role’4 in this. However, the way in which the adjudication system responds to the challenges posed by environmental cases affects manageability/case load and, therefore, speed and and Tribunals at the Confluence of Human Rights and the Environment’ (2009) 11 Oregon Review of International Law 301; G. Pring and C. Pring, ‘The Future of Environmental Dispute Resolution’ (2012) 40 Denver Journal of International Law and Policy 482. 2 B. J. Preston, ‘Judicial Specialization Through Environment Courts: A Case Study of the Land and Environment Court of New South Wales’ (2012) 29 Pace Environmental Law Review 602; B. J. Preston, ‘Characteristics of Successful Environmental Courts and Tribunals’ (2014) Journal of Environmental Law 4; B. J. Preston, ‘Benefits of Judicial Specialization in Environmental Law: The Land and Environment Court of New South Wales as a Case Study’ (2012) 29 Pace Environmental Law Review 396; and R. Carnwath, ‘Environmental Enforcement: the Need for a Specialist Court’ [1992] Journal of Planning Law 799. 3 This is the approach taken by Pring and Pring, ‘The Future of Environmental Dispute Resolution’, at 483. 4 Ibid., at 491.

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792 emma lees costs. In addition, where the legal provisions in place provide for a low level of environmental protection, the nature of the adjudication model may influence the likelihood of judicial innovation, extending environmental principles, or other normative environmental controls, to cover an instant case.5 Thus, it will be shown that specialization does not in itself solve the challenges of environmental adjudication, nor is it necessary so to do. But, we argue, bespoke adjudicative rules are required for such adjudication to be environmentally sound, manageable, and respectful both of the principles of access to environmental justice and of wider legal principles. This chapter begins, in section 35.2, with consideration of the role of the judiciary in relation to the environment. In section 35.3, it addresses the challenges raised by environmental litigation. Section 35.4 outlines the different models which can arise. Section 35.5 then concludes with analysis of the relative merits of these different models, and what this suggests about environmental adjudication in general.

35.2 The Role of the Judiciary and its Place Within the Context of Value-driven Decision-making In every state with an environmental regulatory system, it is inevitable that the judiciary will have a role to play in both supervising administrative action, and in adjudicating between private parties, in relation to those environmental controls. However, national attitudes as to the appropriate role of the judiciary in such adjudication differ. In considering the different adjudication models possible, therefore, it is necessary to begin by considering not the formal adjudication structures, but the relationship between these structures and the understandings within the relevant state as to the place of the judiciary within a decision-making sphere involving the balancing of competing interests. Much environmental decision-making (encompassing adjudication) is as much a matter of balancing such values6—liberty to use property, clean environment, social and economic development, human rights,7 etc.—as it is determining compliance with strict standards. Thus, rules rely on concepts such as ‘significance’, ‘damage’, and ‘proportionality’, all of which are sufficiently fluid in terms of definition to encapsulate such values. Adjudicating these rules therefore requires engagement with these underpinning values. If the national understanding of the judicial role in such a process is one which sees the judiciary as a neutral adjudicator as to the reasonableness, or proportionality, of an administrative decision, taking account of, but not prioritizing, a wide range of such competing perspectives, then, arguably, the need for a specialist court falls away.8 If, however, the judiciary are viewed through the lens 5 Preston, ‘Judicial Specialization Through Environment Courts’, at 606. 6 T. S. Aagaard, ‘Environmental Law as a Legal Field: An Inquiry in Legal Taxonomy’ (2010) 95 Cornell Law Review 221, at 256–7; O. W. Pedersen, ‘Modest Pragmatic Lessons for a Diverse and Incoherent Environmental Law’ (2013) 33 Oxford Journal of Legal Studies 103, at 109. 7 Pring and Pring, ‘Specialized Environmental Courts and Tribunals’, at 307. 8 H. H. Bruff, ‘Specialized Courts in Administrative Law’ (1991) 43 Administrative Law Review 329, at 331.

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adjudication systems 793 of ‘independent scrutineer’ of both merits and process, then the expertise of the ‘audit’ which the judiciary thereby performs becomes more significant.9 The result of this is that the design of court structures is not solely determined by the ‘importance’ or otherwise which a state places on environmental protection, nor may the adjudication system be deliberately created in response to the challenges which environmental law poses, but rather may be a specific example of a more general national attitude to the judiciary and the appropriate role which they play within the democratic process. Finally, a state’s constitutional understanding of the relationship between the different organs of state power will also affect the way in which that state views environmental adjudication. For states with a written constitution and a constitutional court, particularly where that constitution contains an environment clause (as e.g. do the majority of written constitutions within Europe10), the judiciary is explicitly tasked by these constitutional arrangements with ensuring a high level of environmental protection. Where, however, as in the United Kingdom, there is no judicial scrutiny of primary legislation, or as in the United States, there is no environment clause within the Constitution, there is, in effect, a legal assumption in these legal systems that environmental values should play second fiddle to other ‘constitutionalized’ concerns, either, in the case of the United Kingdom, to parliamentary sovereignty (so that the judiciary are unable to consider the merits of primary legislation except in the context of EU law), or, in the case of the United States, to the fundamental rights guaranteed in the constitution (one thinks immediately here of the right to property and the ensuring takings jurisprudence11). This means that simply looking at the ‘model’ for adjudication in terms of specialism, standard of review, and process, only goes so far in explaining how environmental law adjudication is managed within a particular state.

35.3 Responses to the Challenges of Environmental Litigation Before examining some examples of environmental adjudication systems, and their differing choices within the three parameters articulated above, it is important to shed some light on the particular challenges of environmental litigation. These challenges are important for the design of adjudication models because any successful system (judged not only according to the ‘environmental quality’ of decisions, but also more broadly) must provide a means of either tackling, or avoiding, these problems. 9 Preston, ‘Characteristics of Successful Environmental Courts and Tribunals’; Preston, ‘Benefits of Judicial Specialization in Environmental Law’, at 434. 10 V. Barbé, ‘Le droit de l’environnement en droit constitutionnel comparé: Contribution à l’étude des effets de la constitutionnalisation’, available at: http://www.droitconstitutionnel.org/congresParis/ comC8/BarbeTXT.pdf. 11 There is a very extensive literature available on the question of regulatory takings, property rights, and environmental controls. However, some of the most significant works include: J. L. Sax, ‘Takings, Private Property and Public Rights’ (1971) 81 Yale Law Journal 149 and M. J. Radin, ‘The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings’ (1988) 88 Columbia Law Review 1667. For recent discussion see J. W. Singer, ‘Justifying Regulatory Takings’(2015) 41 Ohio Northern University Law Review 601.

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794 emma lees Why does environmental law garner such special attention from those considering the role of the judiciary in controlling both private parties and administrative action? It is suggested that there are three key reasons for this, although no one of these is unique to environmental law.12 First, there is the ‘problem’ of public interest litigation (acknowledging that by no means all environmental litigation is public interest litigation, but recognizing that public interest litigation and the problems associated with it come to the fore in environmental disputes). The fact that many of those disputing environmental decisions are not directly affected by the outcome of the hearing, but rather are advocating a public interest cause, affects the manner of their adjudication. In particular, the adversarial style of litigation prominent in many jurisdictions in other contexts is not necessarily well-suited to such a situation, where very often the court is being used as a forum within which environmental arguments are articulated which may have been overlooked in an administrative decision-making context, rather than a forum for assessing the relative merits of competing, polarized arguments. Second, there is the problem of scientific evidence. The particular arguments run in relation to the environment are often (though, again, not always), by their very nature, complex in terms of the science involved.13 We naturally do not expect our judges to be scientific experts, but specialization of the court (particularly judicial specialization) allows the judiciary to build up experience in handling such scientific material so that they are able to get to the heart of the scientific debate, and understand its implications in relation to the quality of administrative decision-making more quickly and easily than might otherwise be the case.14 For this reason also, as will be seen below, it can often be helpful for a court to have access to a scientific or specialist legal adviser. However, in managing the role of such an adviser within an adjudication model, it must be remembered that such evidence is not neutral.15 The presentation of scientific evidence, especially in cases involving risk assessment, will itself have been a matter of interpretation and value assessment.16 It is therefore important to recognize that a scientific or technical expert cannot be a source of value-free information. Rather, the implicit value judgements which the scientific community may bring to the adjudication process are likely to be different from those of the judiciary, and as such, the technical expert provides a valuable extra voice whatever the specialism of the adjudicating judge. Finally, there is the challenge posed by the intensely political character of many decisions made in this sphere, especially those relating to the carrying out or thwarting of development. The lack of direct accountability for the judiciary in this respect therefore brings with it different questions than it does in relation to the regulation of a contract, for example, 12 Pring and Pring, ‘Specialized Environmental Courts and Tribunals’, at 309; P. Cane, ‘Are Environmental Harms Special’ (2001) 13 Journal of Environmental Law 3. 13 Robinson, ‘Ensuring Access to Justice Through Environmental Courts’, at 379; Pring and Pring, ‘The Future of Environmental Dispute Resolution’, at 486. 14 Preston, B. J., ‘Judicial Specialization Through Environment Courts: A Case Study of the Land and Environment Court of New South Wales’ (conference proceedings) at 605, available at: http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1700&context=pelr. 15 E. Lees, ‘Allocation of Decision-Making Power under the Habitats Directive’ (2016) 28 Journal of Environmental Law 191, at 201. 16 P. Ky, ‘Qualifications, Weight of Opinion, Peer Review and Methodology: A Framework for Understanding the Evaluation of Science in Merits Review’ (2012) 24 Journal of Environmental Law 207; J. McEldowney and S. McEldowney, ‘Science and Environmental Law: Collaboration Cross the Double Helix’ (2011) 13 Environmental Law Review 169; E. Fisher, P. Pascual, and W. Wagner, ‘Rethinking Judicial Review of Expert Agencies’ (2015) 93 Texas Law Review 1681.

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adjudication systems 795 albeit that it may be this very neutrality that might make them particularly well-suited to making such environmental decisions. However, there is a strong argument that the judiciary embody their own values in terms of acceptable and unacceptable use of state power or state mechanisms to resolve environmental issues. Such values include the importance of the rule of law, of procedural fairness and the principles of natural justice, and of maintaining constitutional propriety. Bringing such values to the fore is one of the most important functions of the judiciary, and this ought not to be discouraged, but the role of such values in environmental adjudication should be acknowledged. Such challenges shape environmental adjudication systems. But they are not unique. The problem of scientific complexity is as present in tort law relating to medical negligence as it is in relation to the environment. There is obviously much public interest litigation that is not concerned with the environment. The neutrality of the judiciary, in the sense that the judiciary is not tasked to represent the ‘popular voice’, is a contentious issue in many other fields: in the United Kingdom this issue raised its head in such diverse cases as litigation over the right of the terminally ill to seek assisted suicide,17 to the fox-hunting ban,18 and further to the question of the property rights of cohabiting couples19 and most recently, in relation to the ‘Brexit’ process.20 Environmental law is not therefore special in this sense. However, in combining these characteristics, it provokes debate as to the ‘best’ way to adjudicate on environmental issues. In terms of adjudication models, this means that the model as designed may encounter two issues. First, the challenges raised by environmental adjudication will mean that the ‘flavour’ of environmental decisions will very often be different from normal adjudication, even in cases of general courts with no special rules relating to process and standard of review. The model on paper may therefore be somewhat different in practice, through the development of customary or ad hoc responses to these challenges. Second, perhaps the most important feature of the practice of a court may well be the openness which it brings as to its own neutrality, values, and understandings of proper state action, rather than the strict rules in place. However, such subtleties are not visible in a comparative ‘broad brush’ review of a court system. This is not to say that considering the formal adjudication structures is not useful, but rather that formal adjudication structures are not the only way in which a judicial system can, and does, respond to the challenges of environmental litigation. Furthermore, for many, the call for a specialist environmental court is as much about the symbolism of doing so as it is about the speed, efficiency, and ease of adjudication.21 The creation of such a court is seen as a signal of the seriousness which the state attaches to the environment per se and to preserving a good quality of life for future generations. 17 R (Nicklinson) v Ministry of Justice [2014] UKSC 38, [2015] AC 657. 18 R (Jackson) v Attorney General [2005] UKHL 56, [2006] 1 AC 262. 19 Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432. 20 R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583. 21 Robinson, ‘Ensuring Access to Justice Through Environmental Courts’, at 367–8, where Robinson argues that a specialist environmental judiciary is more than symbolic, but is essential to preventing ongoing environmental deterioration (albeit that the argument is based on restrictive standing and cost rules versus environmental courts, and therefore does not consider the general court with special standing rules, for example). See also D. Kaniaru, ‘Environmental Tribunals as a Mechanism for Settling Disputes’ (2007) 37 Environmental Policy and Law 459, at 460, citing A. Nazif, ‘Proceedings of the Regional Meeting of the Arab World’s Chief Justices’, Cairo, 24–25 November 2004, published in 2005.

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796 emma lees The long-term importance of ensuring such environmental quality adds, therefore, a further dimension to the challenges for adjudicating on such matters. Whereas in many areas of law a particular decision is largely concerned with present actors, even if by setting a precedent it may have longer-term consequences, very often, in relation to environmental law it is the long term which is being prioritized over current actors. The temporal dimensions of environmental law therefore add an additional complication in the form of risk assessment, but also change the character of what the judiciary is actually being called upon to do. Per Warnock: ‘[e]nvironment courts are concerned with polycentric decision-making. Their decisions have an impact beyond the immediate parties to any dispute and can influence the economic and socio cultural wellbeing of present and future generations’.22 Understanding these challenges is critical to understanding the different state responses to the question of environmental adjudication, but the model which a state adopts is not necessarily indicative of a deliberate confrontation of such challenges, nor does it necessarily indicate that a state does or does not prioritize the interests of future generations. Rather, consideration of the model for adjudication reveals two things. First, it reveals aspects of the national understanding of the appropriate role of the judiciary in relation to the environment. Second, it reveals the degree to which the state considers that such challenges warrant special judicial systems as a response to inadequacies in their ‘normal’ adjudicative approaches.

35.4 Adjudicative Models 35.4.1 Introduction This section will examine the range of options available when designing an environmental adjudication system in relation to the three parameters discussed above: specialization of judiciary and jurisdiction; scope of jurisdiction; and bespoke costs, standing, and procedural rules. Before proceeding to this discussion, however, it is necessary first to consider the methodology employed. In the existing literature, there are alternative conceptions of the ‘essential building blocks’ or ‘models’ available in relation to design of environmental adjudication systems. Thus Pring and Pring state that there are twelve ‘basic building blocks’. These are: 1. The type of forum (judicial or administrative); 2. The jurisdiction of the court; 3. The level of decision (i.e. first-instance, appeal, etc.); 4. The geographic area covered; 5. Case volume; 6. Standing; 7. Costs; 8. Access to scientific and technical expertise; 9. The availability of alternative dispute resolution mechanisms; 10. The competence of judges, including special training; 22 C. Warnock, ‘Reconceptualising the Role of the New Zealand Environment Court’ (2014) 26 Journal of Environmental Law 507, at 517.

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adjudication systems 797 11. Case management; and 12. Enforcement tools and remedies. They argue that, ‘the most critical of these design decisions for enhancing access to justice are 6–9: standing, costs, scientific and technical expertise, and ADR’.23 In assessing these factors their focus, quite understandably, is in achieving the best environmental outcome. However, it is suggested here that by breaking down analysis of the relevant model into such a large number of ‘building blocks’, they lose sight of the model which emerges in its wider judicial and constitutional context. Thus this chapter considers many of the same features but it does so in a more broad brush way. By grouping these factors into larger blocks, analysis of the court becomes simpler, and modes of comparison therefore more straightforward, and, it is suggested, more useful. Comparative analysis, as this book has highlighted, is only worthwhile when it does not get too bogged down in the detail of each comparator. Thus, whilst Pring and Pring’s model may be useful in analysing individual adjudication systems, it is less useful when engaging in a comparative review due to the very high degree of specificity. There is also an important assumption hidden in their method of assessment of these building blocks. They assume that there is an ‘optimal’ combination of these building blocks which will be most environmentally advantageous. The assumption made by Pring and Pring that the goal is static, that is, a court which best protects the environment, and this determines the scope of their comparative gaze. They are not alone in making such an assumption. Robinson too takes this approach, arguing that: The needs of a growing human population put incremental stresses on natural systems, giving rise, in turn, to a larger volume of environmental conflicts. Orderly resolution of these conflicts and securing protection and restoration of environmental quality is seen as increasingly important. Throughout the coming years, courts will become increasingly more valuable to societies world-wide for resolving environmental conflicts and enforcing environmental safeguards.24

If we do not make such an assumption, but consider that environmental protection is only one goal (more or less contentious) amongst others when designing a court system, then we can see that focusing on these twelve factors, factors selected as being representative of the court most likely to make an environmentally protectionist decision, is perhaps an error. To be clear, this chapter is not arguing that environmental protection is not or should not be the most important test for the success of a court system, but rather than it is not necessarily the only benchmark for a ‘good’ court and that focusing on ‘environmental’ outcomes produces too narrow a consideration of the role of the judiciary in environmental law. Rather, more fundamental decisions need to be made when designing such an adjudication system before the specifics of these blocks should be examined: what is the court or tribunal trying to achieve, what kinds of decisions do we want them to make, and most importantly, 23 G. Pring and C. Pring, ‘Greening Justice: Creating and Improving Environmental Courts and Tribunals’ (2009) The Access Initiative, available at: http://www.accessinitiative.org/resources/greeningjustice, xiv. 24 Robinson, ‘Ensuring Access to Justice Through Environmental Courts’, at 369.

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798 emma lees what is the normative understanding of the power that they hold within the political process, and how does this relate to the goal of protecting the environment? The differences in the design of courts are not, therefore, simply about a particular state ‘not caring enough’ about the environment to create a specialist environmental court, with a bespoke costs and standing regime, specialist environmental advisers, and full merits review. Rather, the differences in the models are also a reflection of the fact that environmental decisions do not only engage environmental issues. In this sense, for example, a general court has the legitimacy of its wide-ranging expertise to recognize and balance competing interests (this is not to say that the judges within an environmental court do not also possess this skill, but that one important aspect of a general court is its wide-ranging expertise). The discussion here therefore, does not assume that any option in terms of the three parameters is ‘better’. Several elements are considered under the broad headings of specialization, decisionmaking power, and process, namely: degree of jurisdictional specialization (section 35.4.2); degree of judicial specialization (section 35.4.3); scope and hierarchy of the court’s review (section 35.4.4); existence of special cost and standing rules (section 35.4.5); and court access to legal and scientific advice to assist in decision-making (section 35.4.6). Section 35.4.7 then looks at the case studies that bring together a number of solutions to these questions.

35.4.2 Jurisdictional Specialization When there is discussion of the specialist nature of an environmental court, two features are usually considered: judicial and jurisdictional specialization. However, it is not necessary for both to be present in any one court system. Indeed, some jurisdictionally specialist courts draw upon judges from a variety of legal specialisms but have bespoke procedural and evidential rules relevant to the jurisdiction within their scope. Thus, jurisdictional specialization can be used as a way to provide for special forms of adjudication without the need for judicial specialization. Jurisdictionally specialist courts, which do not also employ specialist judges, are rare. This sort of approach to jurisdictional specialization is, however, taken, in the United Kingdom (at least, in formal terms). Here a specialized forum which may be required to decide environmental questions is the Planning Division of the High Court. This division considers appeals within the planning process. This will cover much that is not ‘environmental’ as such, and much that is ‘environmental’ will not fall under the jurisdiction of the Court. The majority of environmental judicial review and appeal actions will still be heard by the (general) Administrative Division of the High Court. However, even if this planning court was to be considered as jurisdictionally specialized in an environmental sense, the specialization of judges is not guaranteed by its existence. The formal preference within the United Kingdom is for non-specialist judges (albeit, as discussed below, in some places an informal specialism approach has developed). In relation to the planning court, there is a planning liaison judge who allocates significant planning decisions to judges experienced in this particular area, but this is not the same thing as ensuring that specially trained and selected judges make decisions about environmental disputes. In reality, the planning court was not created in order to improve environmental or planning decision-making per se, it was created to attempt to speed up the judicial process in relation to planning law. If anything, therefore, it could be seen as an attempt to limit the number of successful challenges to administrative decisions, not increase them (not least because the

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adjudication systems 799 time limits for planning cases are much shorter than for other judicial review actions). The purpose of the court is not to be environmentally activist; its constitutional role is reviewing the legality of decision-making, not its merits. Thus, the jurisdictional specialism, such as it may be here, is not necessarily twinned with judicial specialism and instead jurisdictional specialism can be a pragmatic response to case load or other similar issues, rather than necessarily representing an attempt to improve the quality of environmental adjudication in a more substantive way. In this sense, the two forms of specialism can be seen as separable.

35.4.3 Judicial Specialization However, the opposite phenomenon—that is, judicial specialism without jurisdictional specialism—is much more common, and generally considered to be successful. This sort of specialism can be informal or formal. For example, in Indonesia, the Supreme Court, in response to calls for a specialist environmental court, developed a process whereby environment judges were required to be certified and receive special training, without the creation of a separate jurisdiction. However, this scheme failed and was withdrawn in 2015 on the grounds that there were insufficient numbers of certified judges to sit in the general courts. This sort of formalized specialism was unsuccessful in this case. Other jurisdictions have opted, in an attempt to solve this problem of availability, to create ‘green benches’ or green divisions of wider general courts, where the goal will be to assign environment cases to this division. Examples of this include Finland and Greece. However, and interestingly, many of the most successful attempts to create a specialist judiciary without the need for a specialized jurisdiction, are almost entirely informal. The clearest example of this can be found in the Indian Supreme Court where an informal mode of specialism has developed so that judges making decisions on environmental matters attend training, participate in cross-border judicial seminars on environmental issues, etc. Indeed, in a similar way courts such as the Court of Justice of the European Union (CJEU), the UK Supreme Court and Court of Appeal, and the Belgian Constitutional Court also practice this kind of informal specialism, with the development of quasi-specialist Advocates General in the CJEU (AGs Kokott, Sharpston, and Jacobs in particular spring to mind in recent years in relation to the environment) and, in the United Kingdom, with lead or majority ‘environment’ judgments usually handed down by an environment or public law specialist. It is worth noting, therefore, that the Indian Supreme Court is one of the most environmentally activist courts in the world. It has jurisdiction under the Constitution of India to ensure that the environment is maintained in a good state, and has used this power to, amongst other things, demand the creation of primary legislation. In particular, the Supreme Court has created its own jurisprudence on public interest litigation which has had a profound impact on the standing and cost rules in relation to the environment. These public interest litigation rules, are ‘a judicial response to social necessities, in the background of inability [sic] of the executive and the legislature to take care and provide a healthy alternative’.25 This arose from a recognition that a clean environment forms part of the (constitutional) right to life.26 As with the CJEU, therefore, the general nature of the Supreme Court of India 25 M. Naseem and S. Naseem, Environmental Law in India (Alphen aan den Rijn: Kluwer Law International, 2014). 26 Pring and Pring, ‘Specialized Environmental Courts and Tribunals’, at 305.

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800 emma lees in terms of jurisdiction has not limited the court in terms of the environmental quality or activism of its decision-making. This has manifested itself in a recognition that standing and costs are essential elements in the administration of efficient and equitable environmental justice. The costs and standing rules in the Indian Supreme Court in environmental public interest litigation cases are therefore very generous. They are not, however, unlimited. It particular, it was held by the Court that public interest rules do not apply where there is a litigant ‘whose bona fides and credentials are in doubt’.27 There is therefore a recognition that environmental public interest litigation ought not to be used by those with a vested interest in the outcome to challenge a decision for self-interested reasons. The example of the Indian Supreme Court shows the benefits that informal judicial specialism can bring, but also highlights the fact that the power of a court, specialist or otherwise, depends upon its place within the wider constitutional set-up above all else. The Supreme Court is able to demand the creation of primary legislation, and set up a national Green Tribunal system because of its nationally determined role in the wider legal system. Many environment courts, as will be seen, sit at first instance. This gives credence to the idea that whilst specialist environmental courts are very useful in managing the challenges of first instance adjudication (complex fact-patterns, scientific evidence, etc.) such is not necessary at higher levels within the judicial hierarchy. Nevertheless, experience in handling the normative issues which are still very much present at the higher judicial levels can indeed be very useful.

35.4.4 Scope and Hierarchy of the Court’s Review Whilst it is obviously important when an environment court (or a court system which must handle environmental questions) is being designed or established to determine the judicial qualifications to sit in that chamber, and the chamber’s jurisdictional scope, far more significant in terms of the practical reach of the decisions of the chamber, will be the intensity of its review, and its power in terms of reviewing legislation. In particular, there is enormous significance in the question as to whether a court has legislative review powers. In the United Kingdom, where there is no such power, partly due to the lack of a written constitution, except in respect of compliance with EU law, the degree to which the courts can be considered ‘environmentally activist’ (for good or for bad) is limited by the general limitations which except on the scope of their power. By contrast, almost all of those courts which are praised for their environmental activism do have the power of legislative review. The CJEU is a good example of this given it power in relation both to Union legislation and to national Member State legislative acts. The CJEU is one of the first instance courts of the Union (the other being the European General Court (ECG), formerly the Court of First Instance (CFI), which (mostly) hears actions against Union institutions and specific matters such as trade marks and design). It is also an appeal court for decisions made in the ECG, and can therefore be said to be the superior court in the EU system. The Court is made up from a judge from each Member State and its Advocates General. The CJEU has primary jurisdiction for considering infringements of EU law by Member States, and for the preliminary reference procedure. It is not a specialist environmental court, nor does it have specialist environmental judges. And yet, 27 T N Godavarman Thirumulpad (98) v Union of India (2006) 5 SCC 28.

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adjudication systems 801 it is one of the most environmentally ‘forward-thinking’ courts surveyed. It has regularly demanded creative, purposive interpretation of legislative provisions to ensure that they properly respect the environmental principles embodied in the EU Treaties, and furthermore, is the instigator of a very ‘precaution-driven’ approach to environmental management. The downside of this is that the decisions of the CJEU have been regularly criticized as being opaque, purposive to the point of abandonment of language, and somewhat difficult to predict and understand.28 The lack of specialization, both in terms of jurisdiction and in terms of judiciary, has not, therefore, prevented this court becoming environmentally activist in this sense, but neither has it guaranteed other important values in terms of adjudication, such as legal certainty (even though this is expressly a principle of the Union legal order29). However, to understand fully the scope of the CJEU’s decisions in this regard, it is important to recognize that as a quasi-international jurisdiction, the processes by which it reaches decisions are somewhat different from that in a purely national court. First, many of the Court’s decisions in relation to environmental law have come from preliminary references. Preliminary references occur when a court of a Member State encounters a question of EU law to which there is no obvious or settled answer, such that clarification is required. The national court then makes a reference to the CJEU which allows the CJEU to consider the relevant EU law rules. The CJEU will then direct national courts as to how such provisions are to be interpreted and applied. Alternatively, matters can arise before the CJEU when an individual brings an action alleging that a Member State is acting in breach of EU law, by either failing to correctly implement EU legal standards, or by flouting such standards in practice. The differences between these two procedures feed into the review standard which the CJEU employs. However, given its place within the Union legal order, and the Union’s relationship with the legal system of the Member States, it is not as simple as saying that the CJEU has ‘merits’ review powers, even though the CJEU will indeed review a decision ‘from scratch’ rather than assuming a degree of deference in relation to an administrative decision. Rather, it must be understood that the CJEU is the ultimate arbiter of legality within the Union, but that it exercises this power most often through the national legal systems. Such influence is mainly carried on through the filter of the national court structures meaning that the operation of EU law in a Member State will depend not only upon the CJEU and its attitude towards environmental adjudication, but also on the attitude of the national court. However, the consequence of being the ‘arbiter of legality’ is that the CJEU is therefore able not only to review administrative action, but also national primary and secondary legislation so as to consider its compatibility with EU law. Similarly, where an individual administrative decision breaches EU law, it is up to the national court to remedy that. The CJEU does not, in this sense, remake any decision, but it does direct the manner in which a decision must be remade. Nor, similarly, does it ‘strike down’ legislation, but it directs that 28 E. Lees, Interpreting Environmental Offences: The Need for Certainty (Oxford: Hart Publishing, 2015), 76. 29 See 13/61 Kledingverkoopbedrijf de Geus en Uitdenbogerd v Robert Bosch GmbH and Maatschappij tot voortzetting van de zaken der Firma Willem van Rijn [1962] ECR 00045, 52; C-161/06 Skoma-Lux sro v Celní ředitelství Olomouc [2007] ECR I-10841, [38] and [67]; C-169/80 Administration des douanes v Société anonyme Gondrand Frères and Société anonyme Garancini [1981] ECR 1931, [17]; C-108/01 Consorzio del Prosciutto di Parma and Salumificio S. Rita SpA v Asda Stores Ltd and Hygrade Foods Ltd [2003] ECR I-05121; and C-158/06 Stichting ROM-projecten v Staatssecretaris van Economische Zaken [2007] ECR I-05103.

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802 emma lees it is contrary to EU law and must not, therefore, be applied. In this sense, the reach of the CJEU is far, but it is different from the New Zealand court’s ability to, for example, review secondary legislation to ensure that it is environmentally sound. The New Zealand Environment Court was established by the Resource Management Act amendment of 1996. The functions of this court differ hugely from many models discussed here, in that not only is it used in the adjudication process, but also in terms of legislative oversight in that it is empowered to alter subordinate legislation (a function not shared by any other court in New Zealand). However, this function is not without controversy. For example, some have argued that the New Zealand Environment Court oversteps the proper judicial role, thus highlighting the importance of the model selected reflecting the overall assumptions in place in a state as to what that appropriate role is. The Minister for the Environment, for example, argued that, ‘[t]he judiciary should not be placed in the position of having to determine values or policy— this role should be played by publicly-accountable, elected representatives’.30 Although the particular approach of the Environment Court which had caused these criticisms to arise was ‘reined in’ by the Supreme Court of New Zealand in the King Salmon case,31 the specialization of the Court neither ensured that environmental adjudication was easy and uncontroversial, nor did it ensure a fixed ‘environmental baseline’. Rather, the Court recognized that environmental decisions cannot prioritize only environmental issues, and instead engaged in a balancing exercise. An alternative way of considering the scope of a court’s power in this respect is to consider its place within the wider judicial hierarchy. Lessons can be learned from the Land and Environment Court of New South Wales, which, uncommon for an environmental court (although compare the court system in Sweden), sits equal to the State Supreme Court within the judicial hierarchy and is therefore a superior court of record. This Court, which is highly specialized—both jurisdictionally and judicially—has merits review of administrative action (although not legislative review powers) and, to assist in this, also has access to technical advisers. Part of the success of this court, and its practical and symbolic importance, lies not in its procedural and evidential rules however, but in its placement at the top of the judicial hierarchy. This powerful statement is absent in systems which introduce first-instance environmental tribunals, such as the Environment Court of Vermont.

35.4.5 Specialist Costs and Standing Rules Whatever the power of the relevant court, and however well-equipped its judges are to make environmentally proactive and sound decisions, they will be unable so to do if the costs and standing rules in that jurisdiction make it impossible or practically so for an individual or group to bring an environmental action. Thus, despite its long reach in terms of the scope of its review, and the informal specialisms that have built up in relation to the Advocates General, in relation to costs and standing rules, the CJEU can reasonably be considered to be restrictive in terms of allowing environmental litigation and this has limited what the Court has been able to achieve in relation specifically to the Union institutions. This is somewhat ironic as the 30 Warnock, ‘Reconceptualising the Role of the New Zealand Environment Court’. 31 Environmental Defence Society Incorporated v The New Zealand King Salmon Company Limited [2014] NZSC 38, [2014] 1 NZLR 593.

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adjudication systems 803 CJEU is very proactive in attempting to ensure that the court systems of the Member States comply with the Aarhus Convention.32 It is not however itself bound by Aarhus.33 In relation to the preliminary reference procedure, standing is somewhat irrelevant in that the action ends up before the CJEU as a result of a question being issued by the national court. The only relevant standing rule for this sort of issue therefore is whether there is standing before the national court. Given that most of the significant environmental decisions have taken place through this mechanism, the standing rules have not prevented the CJEU from developing its environmental jurisprudence. On the other hand, in actions against a state, or against the organs of the EU itself, in order to bring an action an individual must show ‘direct and individual concern’ and this test has been interpreted in a highly restrictive way.34 The ‘direct concern’ test is straightforward. It is simply saying that the measure must have direct legal impacts upon an individual, that is, there is no discretion in terms of implementing measures. More difficult is the meaning of ‘individual concern’.35 To meet this requirement, an individual must show circumstances unique to themselves which distinguish them from all other persons so that they are ‘individually’ affected by a measure. This makes public interest or group litigation virtually impossible. The position on costs before the CJEU is that the loser is required to meet the costs of the other side (subject to a small amount of discretion). This can mean, therefore, that such litigation is very costly, and the current costs regime may therefore breach the Aarhus Convention. However, the CJEU has held that it is unable to assess the validity of the Union’s own legislative acts in light of the Aarhus Convention.36 Whilst the CJEU has been vigilant to ensure Member States correctly implement Aarhus, it is unable to hold Union institutions, including itself, to the same standard. By contrast, the United Kingdom has developed special rules regarding costs in environment cases and regarding standing in relation to cases involving the environment despite such cases appearing before a wide range of courts. These special rules apply whether or not a case is heard before the Planning Division of the High Court. However, the detail of these rules has changed significantly recently. Essentially, as a response to Aarhus, Protective Costs Orders used to be available in environmental cases so as to limit the costs liability of a person bringing a public interest case. However, as of 8 August 2016 the Protective Costs Order regime was abolished. In February 2017, special rules relating to Aarhus Convention (‘environmental’) claims were introduced. These new rules are not, however, wholly satisfactory. One significant issue with them is that unlike the previous system the costs cap, although indicative, can be moved depending upon the financial resources of the claimant, both of their own, and of those funding their litigation. However, it must be recognized that a large proportion of environmental law cases are brought against local authorities, and these have very limited resources. Requiring these resources to be spent defending judicial review actions where, 32 UNECE, Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 25 June 1998. 33 C-401/12P to C-403/12P Council of the European Union and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht. 34 Case 25/62 Plaumann v Commission [1963] ECR 95. 35 C- 321/95P Stichting Greenpeace Council and others v Commission [1998] ECR I- 1651 and C- 50/00P Uniǒn de Pequeños Agricultores v Council [2002] ECR I- 6677. 36 C-401/12P to C-403/12P Council of the European Union and others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht.

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804 emma lees even in cases where the action is unsuccessful, they will be unable to recover their full costs, is problematic. That is not to say that environment cases should not benefit from special costs rules—far from it—but simply to recognize that if the costs rules are very generous to public interest litigants, they are, necessarily, ungenerous to those successfully defending their actions. Some specialist courts have also made concession to the problem regarding costs. One example of this is the Environment Court of Vermont. The Environment Section of the Superior Court of Vermont is an example of a lower tier specialist environment court. The court hears cases largely de novo, and has therefore got a merits review jurisdiction. The Court was created as a specific response to the difficulties experienced in enforcing environmental law standards in the State and has a relatively wide jurisdiction. In essence, specialization was seen as a response to the problem of under-enforcement. Furthermore, the fact that the Court has merits review of administrative decision-making increases the scope of the power of the Court to influence environmental practice. However, as it is only a court of first instance, there is the possibility of appeal to the Vermont Supreme Court, a non-specialist court, thereby limiting the scope of its merits review jurisdiction. The Court does not have automatic assistance from a scientific expert, but it is able to hire one so as to facilitate assessment of the scientific evidence presented to the court by the parties to the dispute albeit that it does not have a specific budget to fund this. This, naturally, reduces the degree to which such assistance is in fact sought in practice. Costs, are therefore, one of the most significant features of this court in terms of its practical impact. For costs, the general rule is that each party bears their own costs. The Court therefore has somewhat of a special process for environment cases and is unusual in reversing the usual starting point that the loser will pay both sides costs. The Court is generally considered to be successful in terms of active and efficient case management of environmental law cases, but it is not a ‘game changing’ court in the way that, for example, the CJEU and the Indian Supreme Court have been. In part this is because it is not a court of final instance, but this is not the entirety of the explanation as will be seen when the New Zealand Environment Court is considered. Rather, the ambition and resources of the Court limit the degree to which it can be a leader in creating a consistent and ambitious environmental jurisprudence. Furthermore, and perhaps most importantly, the Court is extremely active in advocating mediation as a response to the challenges discussed above, and so many issues are resolved, through the channelling function of the Court, in mediations. Indeed, this is really the Vermont Court’s response to the problem of costs. However, mediation results in the private resolution of disputes, and prevents the creation of a body of environmental principles which are relied on consistently by the Court. This is not necessarily a criticism—mediation can be very useful in environmental cases, and it certainly limits costs issues—but it does limit the influence of this court. A more prominent specialist court to use bespoke costs rules is the Environment Court of New Zealand. In relation to costs, the rules are flexible, against the general principle that, ‘costs does not necessarily follow the event in the Environment Court’.37 This is not solely a question of ensuring compliance with access to justice principles, but is rather a reflection of the more fundamental fact that, ‘the role of the Environment Court is not about creating

37 Environmental Law I NZ, 486.

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adjudication systems 805 winners and losers and awarding damages accordingly’,38 but rather, is more fundamentally about attempting to ensure good environmental decision-making and appropriate case management. The rules on standing are perhaps not quite as flexible in this regard as the costs rules. For the most part, it is still necessary to demonstrate a sufficient interest in order to establish standing. However, in relation to the Resource Management Act 1991 (RMA) in particular, any person can make an application to, for example, seek to change a distract plan or regional policy plans (section 49 RMA). As a result of the fact that the Environment Court is not exclusively limited in terms of jurisdiction to cases arising under the RMA, there will be situations where an individual is unable to bring an action on the grounds that he does not have sufficient interest to do so. The bulk of the New Zealand Court’s caseload however is one where there are broad standing rules. It is also possible in most cases for class actions to be brought, again widening the scope of the standing provisions. Furthermore, as Angstadt argues, ‘despite the Environment Court’s comparatively more formal consideration of standing, it rarely emerges as a bar to litigation since the underlying statute specifying standing is so broadly constructed’.39 The New Zealand Court is therefore one of the most specialized courts in the world, and is seen as leader in environment adjudication (albeit, as highlighted above, the reach of the Court has not been without its critics).

35.4.6 Access to Legal and Scientific Advice Perhaps more significant in terms of the day-to-day specialization of the New Zealand Court, however, is the assistance which the judiciary have from the lay experts, the environment commissioners. Such commissioners make decisions jointly with the judges, and as such, the Court has itself held that it ought to use, ‘the whole range of its collective experience’.40 The environment commissioners sit with the judiciary, usually in the ratio two commissioners to one judge. The result of this is that, as Warnock highlights, ‘The specialization of the Court gives it a particular skill in determining . . . legislative facts’.41 The NSW Land and Environment Court too has access to specialist advice in the forms of its technical expert advisors. Such assistance in adjudication can be invaluable, especially in general courts. As with judicial specialization, however, this can also be an informal process. The CJEU does not receive specialist advice as such, but the Advocates General of the Court do give advisory opinions on the legal rules engaged in a particular case. Legal experts, the Advocates General tend to have informal areas of expertise, and are usually assigned decisions which fall within such areas. In the environmental law area, as noted above, Advocates General Jacobs, Kokott, and Sharpston have been particularly active. They can therefore be considered to have developed a certain kind of informal expertise in the make-up of EU environmental law, even if this is very much a practical rather than a formal innovation in terms of the use of 38 C. Towns, ‘The Right of Third Party Appeal in New Zealand Land Use Planning: An Outsider’s Perspective’ (2006) 10 New Zealand Journal of Environmental Law 329, at 350. 39 J. M. Angstadt, ‘Securing Access to Justice Through Environmental Courts: A Case in Diversity’ (2016) 17 Vermont Journal of Environmental Law 345, at 362. 40 Electricity Corporation of New Zealand Ltd v Manawatu-Wanganui Regional Council (Planning Tribunal W70/90, 29 October 1990), 95. 41 Warnock, ‘Reconceptualising the Role of the New Zealand Environment Court’, at 510.

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806 emma lees the AGs. The role of the Advocate General, as adviser to the Court, can therefore be seen as going some way to altering the specialized nature of the advice given.

35.4.7 Bespoke Solutions to Environmental Adjudication All of these features are, however, brought together in the highly specialized Swedish Land and Environmental Court system. This system encompasses both a court of first instance and an appellate court. The environmental courts also have original decision-making jurisdiction in some areas, and so the Swedish courts could be said to have the widest scope in terms of their environmental specialism, jurisdictional reach, and the bespoke nature of their responses to the challenges raised by environmental adjudication. As with the Indian Supreme Court, the Swedish environment courts are operating under the auspices of a specific constitutional right to a clean environment. Furthermore, the Swedish system is based upon a comprehensive Environment Code. This suggests at least that there is a relatively coherent and rational system for regulating environmental law in the shape of a single regulatory system, governed by environmental principles, and structured so as to minimize overlap, multiplicity of rules, and conflict, perhaps making the job of adjudication easier. At the regional court level, cases involve one specialist judge, an environmental technical adviser, and two lay experts, all of whom have equal standing in the decision-making process. It is therefore quite atypical in terms of a judicial forum for dispute resolution. As a result of this perhaps it also has a very different style from the typical adversarial approach. Rather, it is much more informal and there is, at least in theory, less need for formal legal representation, and members of the public are able to comment as a hearing progresses. Per Bjällås: A hearing of the Environmental Court of Appeal is more like a general meeting than like an appellate court proceeding. Often the hearing takes place in a conference room and testimony is taken informally at a conference table. The court normally travels to the site in dispute. The parties and the people living close to the site are allowed to give comments to the court. They are all allowed to represent themselves without attorneys. The court can require the responsible local, regional and central authorities to give comments on the case. The court can also require independent technical institutes to comment on the case.42

However, at the appellate level, the judicial make-up of the panel alters to reflect the fact that the appellate jurisdiction is more concerned with errors and issues of law, than it is with specific findings of fact. Thus, the appeal court bench is made up of four law-trained judges, with the possibility of substitution for one technical expert judge should the subject matter of an appeal require it. This is a reflection of one of the emerging conclusions which can be reached from the comparative analysis carried out here: courts of first instance need special scientific advice more than appellate or final instance courts do, because the task assigned to them is different. Both levels of the court however have special cost rules and no filing fees. Depending upon the nature of the dispute, costs do not usually follow the result, and the courts have a great deal of discretion in assigning costs in the way deemed most appropriate. 42 U. Bjällås, ‘Experiences of Sweden’s Environmental Courts’ (2010) 3 Journal of Court Innovation 177, at 182.

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adjudication systems 807 In fact, the area where it is most restrictive in terms of its approach is in relation to standing, where there is public interest standing for NGOs, but not for ad hoc groups. Furthermore, the NGOs have to have been operating in Sweden for three years before they are able to bring an action. This is an attempt to limit the ability of groups simply to come into existence to challenge a particular decision, rather than an attempt to prevent public interest litigation as such, perhaps reflecting the same concerns as the Supreme Court of India’s bona fides rules, but it does result in some restriction on the ability of interested individuals to group together. This may be less significant however given the cost rules, such that there is no need to form such a group simply to minimize the cost risk to any one individual. Overall, the response which the Swedish system represents to the challenges of environmental law is very telling, because of the deliberate rules put in place in relation to all levels of the appellate process (it is not possible to appeal from the environmental court of appeal in many cases). Thus, the model recognizes that judicial specialization and specialist advice are more important at first instance than is in the appellate court. However, the need for bespoke cost and process rules remains important throughout the appellate system. Finally, the Swedish model shows an acceptance that unlimited standing rules are not necessarily the best option. This means that the Swedish courts are not only high specialized, but they have well-developed, deliberate rules, which are specifically tailored to environmental adjudication.

35.5 Concluding Remarks Having considered these models for judicial adjudication of environmental disputes, two clear conclusions emerge. The first is that contrary to the claims of some who advocate an environmental court, the degree to which a court is willing/able to build up a consistent and environmentally proactive jurisprudence is not determined by the existence of otherwise of a specialist environmental court, particularly in a jurisdictional sense. Indeed, general courts can, in some ways, be more activist than specialist courts, particularly where they have a constitutional mandate to protect the environment, and the power to carry out original decision-making and legislative review, but this appears not to be a question of the ‘purpose’ for such courts, but rather a question of their wider constitutional role. The courts here which have had the biggest influence on the shape and content of environmental regulation in the particular state are, unsurprisingly, the courts which are higher up in terms of the national court structures. Thus, the Supreme Court of India has had a more profound influence on the shape of Indian environmental law than the Environmental Court of Vermont has on the rules in Vermont. This can hardly be considered a surprising conclusion. But, it does at least suggest that the symbol of the specialist court may not carry as much weight as might be expected. However, the second clear conclusion is this: meeting the challenges of environmental adjudication in the form of public interest litigation, scientific complexity, and multiplicity of values, is easier and more effective in a bespoke adjudication system. This does not necessarily mean a specialist adjudication system. What the review of the models above tells us is that there are a number of options to be selected between when designing an adjudicative approach. Which are selected matters in terms of access to justice, the smooth running of

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808 emma lees the court process with appropriate and swift decision-making, etc., but the choice between a specialist court and a general court in itself is not as important as giving the court access to specialist advice, and providing for special costs and procedural rules. In other words, environmental adjudication does not necessarily need specialized courts in terms of jurisdiction, nor specialist judges in terms of expertise: the benefits of both jurisdictional and judicial specialization can be obtained through other means (e.g. the possibility of engaging specialist scientific or legal advisers, and the drafting of coherent, integrated regulatory systems), but it is not possible to effectively and efficiently adjudicate on such matters without special rules relating to the challenges of environmental adjudication. Thus, the problem of public interest litigation means that special cost, standing, and procedural rules may be required; the problem of scientific complexity means additional assistance for the court in terms of scientific support; and the problem of multiplicity of values needs an open consideration of the role that these values play in a decision, and a clear understanding as to where environmental values sit in terms of the hierarchy of goals in the system. As a result of this, it is argued that comparative discussion of environmental adjudication ought to focus not on the fact of a court being specialized or not in isolation, rather such specialization should be seen as one decision amongst many which determines how well or otherwise the challenges of environmental law are met, and the appropriate judicial role maintained.

annex—visual representation of different adjudicative models COURT OF JUSTICE OF THE EUROPEAN UNION Judicial Specialisation Jurisdictional Specialisation

Scientific Advisor

Legal Advisor

Merits Review

Standing

Costs

INDIAN SUPREME COURT Judicial Specialisation Jurisdictional Specialisation

Scientific Advisor

Legal Advisor

Merits Review

Standing

Costs

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adjudication systems 809 UNITED KINGDOM PLANNING COURT Judicial Specialisation Jurisdictional Specialisation

Scientific Advisor

Legal Advisor

Merits Review

Standing

Costs

ENVIRONMENT SECTION OF THE SUPERIOR COURT OF VERMONT Judicial Specialisation Jurisdictional Specialisation

Scientific Advisor

Merits Review

Legal Advisor

Standing

Costs

NEW ZEALAND ENVIRONMENT COURT Judicial Specialisation Jurisdictional Specialisation

Scientific Advisor

Legal Advisor

Merits Review

Standing

Costs

SWEDEN ENVIRONMENT COURT Judicial Specialisation Jurisdictional Specialisation

Scientific Advisor

Legal Advisor

Standing

Merits Review

Costs

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810 emma lees

35.6 Acknowledgements Comments from Lord Carnwath, Justice of the UK Supreme Court, are gratefully acknowledged.

35.7 Select Bibliography Angstadt, J. M., ‘Securing Access to Justice Through Environmental Courts: A Case in Diversity’ (2016) 17 Vermont Journal of Environmental Law 345. Bjällås, U., ‘Experiences of Sweden’s Environmental Courts’ (2010) 3 Journal of Court Innovation 177. Carnwath, R., ‘Environmental Enforcement: The Need for a Specialist Court’ (1992) Journal of Planning and Environmental Law 799. Carnwath, R., ‘Judicial Protection of the Environment: At Home and Abroad’ (2004) 16 Journal of Environmental Law 326. Kaniaru, D., ‘Environmental Tribunals as a Mechanism for Settling Disputes’ (2007) 37 Environmental Policy and Law 459. Preston, B. J., ‘Benefits of Judicial Specialization in Environmental Law: The Land and Environment Court of New South Wales as a Case Study’ (2012) 29 Pace Environmental Law Review 396. Preston, B. J., ‘Judicial Specialization Through Environment Courts: A Case Study of the Land and Environment Court of New South Wales’ (2012) 29 Pace Environmental Law Review 602. Preston, B. J., ‘Characteristics of Successful Environmental Courts and Tribunals’ (2014) 26 Journal of Environmental Law 4. Pring, G. and C. Pring, ‘Greening Justice: Creating and Improving Environmental Courts and Tribunals’ (2009) The Access Initiative, available at: http://www.accessinitiative.org/resources/ greening-justice. Pring, G. and C. Pring, ‘Specialized Environmental Courts and Tribunals at the Confluence of Human Rights and the Environment’ (2009) 11 Oregon Review of International Law 301. Pring, G. and C. Pring, ‘The Future of Environmental Dispute Resolution’ (2012) 40 Denver Journal of International Law and Policy 482. Robinson, N. A., ‘Ensuring Access to Justice Through Environmental Courts’ (2012) 29 Pace Environmental Law Review 363. Warnock, C., ‘Reconceptualising the Role of the New Zealand Environment Court’ (2014) 26 Journal of Environmental Law 507.

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SECTION B

P OL IC Y I NST RU M E N T S

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C OM M A N D A N D C ON T ROL R E GU L AT ION

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chapter 36

En v ironm en ta l Pl a n n i ng Wang Jin

36.1 Overview

36.1.1 Concept of Environmental Plan 36.1.2 Evolution of Environmental Plans in Different Jurisdictions 36.1.2.1 Emergence of Environmental Plans 36.1.2.2 Consolidation of Environmental Plans 36.1.3 Theory of Environmental Plans

815

815 816 816 819 820

36.2 Contents of National Environmental Plans

822

36.3 Implementation of National Environmental Plans

828

36.4 Concluding Remarks

832

36.5 Select Bibliography

833

36.2.1 Formulation of National Environmental Plans 36.2.2 Areas Covered by National Environmental Plans

36.3.1 Implementation Techniques 36.3.2 Legal Effects of National Environmental Plans

822 824 828 831

36.1 Overview 36.1.1 Concept of Environmental Plan The term Environmental Plan generally refers to the overall arrangements and implementation schemes for environmental protection made by governments to achieve the administrative objectives of environmental protection, with a comprehensive consideration of various systems and methods as well as related interests. As this instrument reflects the diversity of circumstances in which they are prepared and issued, whether by a single department

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816 wang jin or through an inter-departmental arrangement, the designation of the instrument differs from country to country and over time. Terms frequently used include plan, programme, policy, strategy, and guideline, and in most cases, there are several environment-related plans. By way of illustration, section 101(b) of the United States National Environmental Policy Act of 19691 stipulates that, it is the responsibility of the federal government to use all practicable means in consistency with other essential considerations for national policy, to improve and coordinate all federal plans, functions, programmes, and resources. The term environmental plan, as used in this chapter, refers to a variety of such instruments, from plans setting zoning requirements to long-term sustainable development strategies. The purpose of the chapter is not to track the development of a specific type of environmental plan in one or more countries but, rather, to show the extent to which a wide variety of plans have been used over time around the world to integrate different goals and actions. Depending on the political culture of a country, the adoption of long-term and largescale plans may be viewed as falling short of democratic and liberal values.2 However, since the 1950s, environmental planning has been increasingly seen as an adequate instrument to address the tension arising from economic development, population growth, resource depletion, and environmental pollution. With the industrialization and urbanization processes, the free development of society and the economy is indeed constrained by the scarce available land resources, the various and often conflicting interests relating to land, and the restrictions on the use of limited environmental resources. In this context, relying solely on reactive state intervention or on market forces seems insufficient to meet the challenges faced by modern societies. It is imperative to look ahead into the possible future scenarios and to plan for resource availability, allocation, and use. As a result, state intervention has moved away from traditional police administration characterized by negative regulation and has embraced a management-based administration, characterized by positive regulation with public participation in environmental management. Environmental planning emerged in response to these needs and, since its emergence, this instrument has been included in the environmental protection laws of many countries as an important tool.

36.1.2 Evolution of Environmental Plans in Different Jurisdictions 36.1.2.1 Emergence of Environmental Plans The adoption of environmental plan is a recently emerged phenomenon, together with the growing awareness of environmental concerns, in the second half of the twentieth century. Some examples may be useful to illustrate the emergence of environmental planning in a range of jurisdictions. The Environment Action Programme in Europe in the 1970s is a programme of action developed by the European Union (EU) to achieve expected environmental protection objectives. The Programme defines the principles and objectives of the EU environmental 1 National Environmental Policy Act, 42 U.S.C. 4331. 2 W. Geng, Theory and Practice of Administrative Law (Taipei: San Min Book Co. Ltd., 2006), 20–1.

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environmental planning 817 protection policies over a period of time, sets out priorities within the corresponding period, proposes a series of measures to be taken, and provides a detailed description and timetable for these measures. From 1973 to 2013, the EU and its predecessor, the European Communities, adopted a total of seven Environment Action Programmes, with a timespan varying from three to ten years for each programme period.3 From a global perspective, the development of national environmental plans began in the 1970s. At this early stage, environmental plans focused primarily on the control of environmental pollution. For example, Sweden went through a period of environmental problems starting in the 1960s, and its environmental policy focused on point source pollution.4 Since then, Sweden began to increase public support for environmental policy, not only establishing the Ministry of Environment but also formulating a large number of environmental laws. During this period, the view of ‘better protection than governance’ emphasized a positive preventive policy over a merely reactive one limited to tackle environmental problems after they arise. At this stage, the legislature and government agencies also adopted a large variety of environmental objectives, the number of targets reached 167 in 1996. The Swedish Environmental Protection Agency (SEPA) considered, however, that these goals did not form a unified and comprehensive structure and had to be rationalized. By the 1990s, the period of national environmental goals began to emerge to deal with new and more complex problems such as non-point source pollution and climate change. In the Netherlands, environmental planning was introduced in the 1970s but it took a new turn with the announcement in May 1989 of the National Milieu Beleidsplan 1989 (National Environmental Policy Plan (NEPP)).5 Among the most salient features of this plan was the detailed analysis of the environmental baseline, that is, the state of the environment that the plan sought to address and the establishment of the 2010 long-term emission reduction target, with medium-term goals for 1990–94. France began to develop national plans very early. The Vichy government during the Second World War developed the first set of national development plans in France, and the French National Committee of Resistance Movement (le Conseil de la Résistance) also did relevant work at the same period. But the French national plan was different from the Soviet-style national plan. From the Vichy government’s national plan, the French national plan was seen as a way to overcome the uncertainties arising from unbridled free markets. The government, through participatory processes, developed various quantitative and qualitative goals to guide all kinds of social capital into the areas of priority development. Thus, the French national plan could be portrayed as ‘an amendment to the uncertainty’

3 Including: 1st Environment Action Programme 1973–76 (OJ C 112, 20.12.73); 2nd Environment Action Programme 1977–81 (OJ C 139, 13.6.77); 3rd Environment Action Programme 1982–86 (OJ C 46, 17.2.83); 4th Environment Action Programme 1987–92 (OJ C 328, 7.12.87); 5th Environment Action Programme 1993–2000 (OJ C 138, 17.5.93); 6th Environment Action Programme 2002–12 (OJ C 242, 10.9.2002); 7th Environment Action Programme 2014–20 (OJ C 354, 28.12.2013). 4 On the Swedish case see L. Lundgren, ‘Miljöpolitiken (Environmental Policy)’ in D. Tarschys and M. Lemne (eds.), Vad staten vill. Mål och ambitioner i svensk politik (Stockholm: Gidlunds, 2013), 281– 346; L. Emmelin and A. Cherp, ‘National Environmental Objectives in Sweden: A Critical Reflection’ (2016) 123 Journal of Cleaner Production 194. 5 On the Dutch case see J. van der Straaten, ‘The Dutch National Environmental Policy Plan: To Choose or to Lose’ (1992) 1 Environmental Politics 45.

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818 wang jin of the market.6 From 1982 onwards, French National Planning gradually transitioned towards the ‘décentralisme’ (or decentralized) period, emphasizing the elaboration of regional development plans by the various French regions, and relying on contractual responsibility to ensure implementation of the plans.7 Regarding the United Kingdom, before the process of decentralization in the 1990s, British planning followed a top-down approach granting the central government significant power of control and intervention. Starting with the Town and Country Planning Act 1947,8 which nationalized the right to develop land and subjected it to an authorization system managed by local authorities, the UK approach was initially to set out a centralized framework for land development, which after the 1990s reforms became increasingly decentralized. The foundational pieces of the current planning system were introduced since 1990, first with the Town and Country Planning Act of 19909 followed by a number of acts and orders devolving planning power to the Scottish Parliament, the Welsh Assembly, and the Northern Ireland Assembly. Subsequently, two other key pieces of legislation were adopted, namely the 2008 Planning Act,10 which concerns the approval of major infrastructure projects, and the 2011 Localism Act,11 a power devolution instrument applicable to England. At present, the UK central government’s planning powers essentially relate to England only. However, the ostensibly decentralized nature of this process effectively conceals the fact that local authorities are bound to follow central guidance—the National Planning Policy Framework—which constrains both the content and approach to decisionmaking. Thus, although outwardly localized, the decision-making is in substance directed from the centre. In Canada, a Green Plan for a Healthy Environment was enacted in 1990, with the core aim of integrating environmental goals into other policy areas and introducing the broad participation of citizens and other organizations in the process of setting goals. Participation was remarkable, with more than 10,000 people participating in the consultation process that led to elaboration of the plan.12 In the United States, environmental planning arose, as in the United Kingdom, from the state’s regulation of urban planning (especially land use).13 In 1907, Hartford, Connecticut, established the first US planning committee, with more than 2,000 cities or regions establishing their own planning committee before the US Federal Environmental Protection Agency (EPA) was established in late 1970. The EPA established a nationwide mechanism of scientific research, environmental monitoring, environmental standards development, and law enforcement activities in a short period of time to coordinate nationwide environmental protection work.14 The EPA put forward the concepts of Strategic Plan and Regulation 6 P. Massé, Le Plan, ou l’Anti-hasard (Paris: Gallimard, 1991). 7 O. Godard and J.-P. Céron: Planification décentralisée et modes de développement: L’expérience du Bureau méridional de planification agricole en Provence (xxx: Les Editions de la MSH, 1985). 8 Town and Country Planning Act (1947), 10 & 11 Geo. VI c. 51. On the British case see the contribution by S. Bell in this volume. 9 Town and Country Planning Act 1990 c. 8. 10 Planning Act 2008 c. 39. 11 Localism Act 2011 c. 20. 12 M. Janicke and H. Jorgens, ‘Strategic Environmental Planning and Uncertainty: A Cross-National Comparison of Green Plans in Industrialized Countries’ (2000) 28(3) Policy Studies Journal 612–32, at 617. 13 On the US case see the contribution by J. Salzman in this volume. 14 A. Gilpin, Dictionary of Environmental Law (Cheltenham: Edward Elgar, 2000), 244–5.

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environmental planning 819 Programme after its establishment. In 1993, the US Congress passed the Government Performance Results Act of 1993,15 which aimed to provide a legal basis for the federal government to establish strategic planning and evaluate the effectiveness of implementation. On this basis, the EPA released its first strategic environmental plan in 1997. Prior to the Environmental Basic Law enacted in 1993,16 which resulted in the comprehensive plan for environmental preservation adopted by the Japanese central government, the Japanese Environment Agency had developed two other plans, namely the ‘Environmental Preservation Long-term Plan’ in 1977 and the internal plan for ‘longterm environmental preservation’ of 1986. However, there was no formal legal basis for these two plans. The situation changed in 1993. Article 15 of the Japanese Environmental Basic Law enacted in 1993 provided such a basis, entrusting the Ministerial Cabinet with the adoption of a plan after seeking the views of the Central Environmental Review Council.

36.1.2.2 Consolidation of Environmental Plans By the end of the twentieth century, virtually all the countries in the world were moving towards a global response to environmental issues by formulating a variety of national environmental plans. Some examples can serve to illustration this consolidation. Since 1990, the British government has published repeatedly annual environmental reports. In 1994, following on the outcome of the Rio Conference on Environment and Development, the United Kingdom took the lead in developing its national strategy for sustainable development. In May 1999, in the second strategy for sustainable development, the British government identified as objectives the coordination of economic growth, social development, and environmental protection by introducing quantitative indicators. In March 2005, the third strategy came out. It covers the period up to 2020. In July 2007, the British government published its new indicators for sustainable development, introducing developments and changes in sixty-eight fields. Thus, the environmental strategic planning has already become an integrate part of the idea of sustainable development in the United Kingdom. In Sweden, since the 1990s, as a method of public management, the idea of Managementby-Objective (MBO) became increasingly popular. With the purpose of developing more effective and efficient environmental policies, it influenced the justification of policymaking process. In 1997, the Swedish government proposed a bill to the Parliament to adopt fifteen national environmental plans and suggested these plans be implemented through the efforts of a whole generation. Nine central government agencies and the SEPA were designated to take the lead in achieving environmental objectives. This proposal was eventually adopted by Parliament in 2001. France initiated its first National Strategy for Sustainable Development (la Stratégie nationale de développement durable (SNDD))17 in 2003. In 2015, the current National Strategy of Ecological Transition to Sustainable Development (2015–20) (la Stratégie nationale de transition écologique vers un développement durable (SNTEDD)) was adopted. 15 Government Performance and Results Act, 31 U.S.C. 1115. 16 See the website of the Ministry of the Environment at: http://www.env.go.jp/en/laws/policy/basic/ index.html. On the Japanese case see the contribution by J. Weitzdorfer and L. Reimers Liu in this volume. 17 See SNDD website: http://www.ladocumentationfrancaise.fr/dossiers/developpement-durable/ strategie-nationale.shtml.

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820 wang jin Besides that, France also developed a series of specific plans in response to different environmental problems, such as the National Strategy for Biodiversity (Stratégie nationale pour la biodiversité), the National Plan of Adaptation to Climate Change (Plan national d’adaptation au changement climatique), the National Strategy of Management of Flood Risks (Stratégie nationale de gestion des risques d’inondation), the National Strategy for the Sea and the Coast (Stratégie nationale pour la mer et le littoral), the National Low-Carbon Strategy (Stratégie nationale bas carbone), and the National Plan for Health and Environment (Plan national santé et environnement). However, despite the existence of several specific national plans, the SNTEDD remains the most comprehensive national environmental plan, which integrates the formulation and implementation of the other specific environment-related plans. As a socialist state, China implemented a planned-economy system before the 1990s, so the planning system in China is very complex.18 In May 1975, the former Environmental Protection Leading Group of the State Council adopted a document entitled On the formulation of the Ten-year Plan for Environmental Protection and the ‘Fifth Five years’ plan (1976– 1988), which required all regions and departments to incorporate environmental protection plans into national economic and social development plans. In September 1979, Article 5 of the first Environmental Protection Law (Trial) stipulated that: The State Council and its subordinate departments, and the local people’s governments at various levels must carry out environmental protection work in earnest and successfully. In planning for national economic development, they shall give overall consideration to the protection and improvement of the environment and take practical measures for its implementation. Where pollution of the environment and other hazards to the public have already been caused, plans shall be worked out to eliminate them in a systematic and orderly manner.19

In April 2014, Article 13 of the newly modified Environmental Protection Law reiterated that ‘The people’s governments at and above the county level shall include the environmental protection work in their plans on national economic and social development’.20

36.1.3 Theory of Environmental Plans Since the 1960s, the democratic political structure system has become increasingly stable in most Western countries and the reluctance towards general plans, as administrative instruments, has decreased.21 As noted earlier, administrative plans in Western countries, including environmental plans, have therefore been fully developed and applied. From an 18 On the Chinese case see further the contribution by Xi Wang in this volume. 19 See Art. 5 Environmental Protection Law (Trial), adopted by the Standing Committee of National People’s Congress, September 1979. 20 See Art. 13 of newly modified Environmental Protection Law by the Standing Committee of National People’s Congress, April 2014. 21 Geng, Theory and Practice of Administrative Law, at 20–1.

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environmental planning 821 administrative law perspective, one commentator has characterized administrative plans as encompassing the technique to pre-determine goals and design the necessary means of achievement, the instrument used to achieve the intended result safely, simply and quickly, and the result of the planned action.22 Therefore, plans can be seen as open administrative instruments, and their legal form may vary significantly. With the development of the economy and the improvement of people’s living standards, the state’s task is no longer to meet the basic needs of the people but to continuously improve people’s quality of life. In order to ensure that the people’s living resources are preserved, it is necessary to plan for the availability and the distribution of such resources as well as the tasks involved in doing. Planning techniques can organize this process. Japanese scholars believe that the function of basic environmental plans is to set an overall direction of the government’s environmental protection measures. The basic environmental plan is not only a plan for the government as the main body and a self-imposed constraint but also an environmental signalling instrument to be relied upon by local governments, enterprises, and nationals. Therefore, the basic environmental plan serves to orient and coordinate the action of all relevant stakeholders towards the achievement of the set goal by means of soft law.23 Indeed, national environmental plans, with their general orientation and coordination function, are normally not considered to be binding legal instruments. Depending on their scope and legal nature, national environmental plans have three main components, namely a guiding plan, a regulatory plan, and an imperative plan. As for the type of administrative action targeted by the plan, a distinction can be made between internal and external planning. Thus, national environmental plans, even when they organize the external action of the administration, are not intended to govern directly private activities. However, they do have an impact on such activities through the action of the relevant administrations, which are expected to work hard to complete the planned tasks and achieve the set objectives. In environmental protection work, the planned measures belong to preventive environmental protection measures, which is the most suitable measure to achieve the requirements of the Prevention Principle. If environmental protection action is pursued only or mainly by means of sanctions after the occurrence of harm, its effectiveness is greatly reduced. This is why the Prevention Principle has gradually become the primary pillar of environmental policy and, within the many measures that can be adopted for this purpose, environmental plans are particularly important. As noted earlier in this chapter, the widespread use of environmental plans also signals the move from one approach based on negative ‘pollution control’ to another approach characterized by active ‘environmental management’.24 China provides a good illustration of this move. In China, the environmental protection plan has always been considered as the main basis for environmental management, the result of environmental prediction and scientific decision-making, and the guiding role of environmental protection work. Therefore, the environmental protection plan is an important reference to achieve the goals of environmental legislation, to guide the national environmental protection work, and to evaluate the performance of government agencies at all levels. 22 H. Wolff, Administrative Law, Vol. II, trans. G. Jiawei (Beijing: The Commercial Press, 2002), 181. 23 O. Tadashi, Environmental Law (Tokyo: Yuhikaku Publishing, 2002), 196–7. 24 C. Ciyang, Environmental Law (Taipei: Yuanzhao Publishing Co., Ltd., 2003), 267–8.

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822 wang jin

36.2 Contents of National Environmental Plans 36.2.1 Formulation of National Environmental Plans National environmental programmes are presented in a variety of forms, including both plans or programmes developed in accordance with laws and plans or programmes established through administrative regulations. Therefore, their legal effect is also different. The legal basis providing for the establishment of a plan can be of a general nature, as illustrated by the general planning procedures envisioned in the German Federal Administrative Procedure Law, or of a specifically environmental nature. Examples of the latter category include the Dutch National Environmental Policy Plan of 1989, the Korean Environmental Long-Term Integrated Plan 1990, and Japan’s National Environmental Basic Plan of 1993, which were all developed in accordance with national laws. This is also the model followed in China, where environmental protection plans and resource development, utilization, and conservation plans are based on individual environmental and natural resource laws. By contrast, Canada’s Green Plan of 1990, the United Kingdom’s Common Estate-UK’s Environmental Strategy of 1990, and the French National Environmental Plan of 1991 were all developed in the absence of a formal and explicit legal basis. Article 1 of Japan’s Environmental Basic Law of 1993 stipulates that environmental protection measures shall be promoted comprehensively and through appropriately designed measures. In order to do so, it is necessary to combine basic objectives, basic measures, and various environmental policy practices to develop basic environmental plans. As noted earlier, pursuant to Article 15 of the Environmental Basic Law of 1993, Japan’s basic environmental plan must be prepared by the Prime Minister of the Cabinet on the basis of the views of the Central Environmental Review Council and then submitted to the Cabinet meeting for decision. The Prime Minister must promptly publish the basic environmental plan after it has been approved by the Cabinet meeting. The basic environmental plan must be based on a long-term perspective and on the limitations arising from ‘environmental capacity’, and it is essential to constantly check the implementation of the plan and improve it. Japanese scholars note that the basic environmental plan must take into account its impact on enterprises and on regional development, and it should follow an environmental management approach.25 In addition, during the preparation process of the basic environmental plan, the views of various industries and sectors are taken into account through the input provided by the Central Environmental Council.26 In the devolved British environmental planning system, the most relevant departments and agencies include the Department of Environment, Food and Rural Affairs (DEFRA), the UK Environment Agency, the Scottish Environment Protection Agency (SEPA), Natural Resources Wales, and the Northern Ireland Environment Agency. The above environmental protection entities develop and implement different programme management policies in 25 Tadashi, Environmental Law, at 195. 26 Environment Office Planning Adjustment Bureau Planning Adjustment Division: Environmental Basic Law Interpretation (Gyosei Corporation, 1994), 110.

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environmental planning 823 accordance with different environmental issues and regulatory targets. The UK Planning Act 2008 and relevant laws and regulations are the overarching legal framework for the preparation and implementation of plans relating to major infrastructure projects. In addition, in March 2012, the UK Department for Communities and Local Government released the National Planning Policy Framework,27 which provides guidance to local authorities in England regarding on how to develop plans and handle planning applications. In the United States, the main body entrusted with preparing national environmental plans is the EPA. Its powers are derived from the National Environmental Policy Act and the Government Performance Results Act of 1993. The development of the national environmental plan in the United States is a process of repeated negotiations and consultations. After the draft has been prepared, the procedures for ‘consultation and suggestion’ are set up specifically to ensure that public opinion is able to play an effective monitoring function in the planning process. Before the official release of the plan, a briefing is required to submit to the US Senate Environment and Public Affairs Committee. In Canada, the Federal Sustainable Development Act28 clearly stipulates that the Federal Minister of Environment Department shall develop the Federal Sustainable Development Strategy (FSDS), which is based on the precautionary principle, every three years after the enactment of the statute. The FSDS draft is developed by the Federal Ministry of Environment Department, and the Minister should submit the preliminary draft of the FSDS to the Sustainable Development Advisory Council, the related committees of Congress, and the Commissioner of the Environment and Sustainable Development (CESD), for review and comment, and the review period shall not be less than 120 days.29 Thereafter, the draft is submitted to the government for approval and becomes the official FSDS after approval, which is sent by the Minister of the Environment Department to the relevant departments of Congress.30 Federal government departments need to integrate the goals set by the FSDS to develop sustainable development plans for each sector.31 The FSDS schedule details the actions of the federal government and how each government department reports on progress through the government expenditure management system, the patterns of Reports on Plans and Priorities (RPP), and how to use the Canadian Environmental Sustainability Indicators (CESI) to report on the implementation process of the objectives.32 In China, in accordance with Article 13, paragraph 2 of the Environmental Protection Law of 2014,33 the competent department within the State Council shall, in conjunction with the other relevant departments, prepare the national environmental protection plan according to the national economic and social development plan and submit it to the State Council for approval, promulgation, and implementation. According to ‘Opinions on Strengthening the Compilation of National Economic and Social Development Planning’ issued by the State Council in October 2005, the national environmental 27 See National Planning Policy Framework at, https://www.gov.uk/guidance/national-planning- policy-framework. 28 Federal Sustainable Development Act, S.C. 2008, c. 33. 29 Federal Sustainable Development Act, s. 9, as amended (S.C. 2010, c. 16, s. 2). 30 Federal Sustainable Development Act, s. 10, as amended (S.C. 2010, c. 16, s. 3). 31 Federal Sustainable Development Act, s. 11, as amended (S.C. 2010, c. 16, s. 4). 32 Janicke and Jorgens, ‘Strategic Environmental Planning and Uncertainty’, at 617. 33 See Art. 13 of newly modified Environmental Protection Law by the Standing Committee of National People’s Congress, April 2014.

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824 wang jin rotection plan falls under the national special plan stipulated in the National Economic p and Social Development Plan. After the preparation of the national environmental protection plan draft is completed, the Environmental Protection Department must submit it to the Development and Reform Department at the same level to coordinate with the overall planning of national economic and social development plan. When the draft of the national environmental protection plan is submitted, the Development and Reform Department must organize the establishment of a Planning Committee of Experts, which prepares a demonstration report. ‘Opinions on Strengthening the Compilation of National Economic and Social Development Planning’ stipulates that plans without convergence or expert demonstration shall not be submitted for approval and promulgation by the State Council. Unless otherwise stipulated by laws and administrative regulations, the national environmental protection plan shall be promulgated in time after approval according to legal procedures.

36.2.2 Areas Covered by National Environmental Plans Most environmental plans share a number of common components, pre-set work objectives, work priorities, work content, and implementation measures and methods. The content of the 1989 NEPP in the Netherlands included a detailed baseline analysis of environmental problems, an assessment of the macroeconomic impact of environmental policy, and a policy strategy to address the environmental problems identified in the NEPP. Environmental problems are organized on the basis of their spatial scale, from local (e.g. noise, odour, local air pollution), to continental (e.g. acidification), to global (e.g. ozone depletion and climate change). The NEPP also addresses water basins. For each problem, a variety of measures are suggested, including measures that limit pollution at the source, which are easier to implement than measures that target the effects of pollution, although both source-oriented and effect-oriented measures can be usefully combined. The macroeconomic impact of environmental policies is assessed through scenario analysis, with three scenarios (a baseline scenario and two other scenarios with a range of environmental policies). The strategy to address the environmental problems identified consists of fifty-five elements, but it can be summarized around five major elements:34 raising awareness and making citizens more responsible for their environmental behaviour; relying on other countries as allies through cooperation; promotion of technological development; adoption of structural source-oriented measures; and resort to other instruments (e.g. integrated environmental policy, implementation of the polluter-pays principle, risk liability, and financial and tax instruments). In France, the SNTEDD sets out the basic tasks of national environmental protection and the key areas of specific ecological and environmental concern. On this basis, a quantitative index system is established, which is used to monitor the state of different environmental variables. In 2015, the SNTEDD established four key environmental areas: climate change, accelerated loss of biodiversity, depletion of natural resources, and increasing environmental health risks.35 In view of the above tasks, SNTEDD identified thirty-nine quantifiable 34 van der Straaten, ‘The Dutch National Environmental Policy Plan’. 35 See Art. L. 110.1of Code de l’environnement of France.

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environmental planning 825 indicators, including twenty-two tracking indicators related to the four major environmental areas, and seventeen first phase tracking indicators related to the nine core tasks.36 By way of illustration, to discharge the core task of developing a ‘low-carbon circular economy’, the SNTEDD identified four priorities: to prompt a change in the production, trade and consumption patterns; to reduce economic dependence on non-renewable resources; the implementation of resource saving and innovation policies in the industrial and agricultural sectors; to encourage and promote innovation at the local level. In addition, the SNTEDD also identified sixteen quantitative indicators, city garbage recycling rate, nonmineral waste treatment quantity, per capita material productivity and domestic material consumption, terminal energy consumption intensity and industry situation changes, etc. The national environmental plan in Sweden generally includes the broad goal of environmental protection, the core values of environmental protection, a number of environmental objectives with several sub-targets and a deadline, and the means to achieve them.37 Sweden’s physical planning focuses on how to use land and waters, taking into account the rights of individuals in accordance with the Planning and Building Act.38 In Sweden, cities have major responsibilities in planning. According to the Planning and Building Act, the Swedish planning system includes the regional plan, the comprehensive plan, the area regulations, and the detailed development plan. The National Maritime Spatial Planning is defined in the Environmental Code.39 Only the area regulations and the detailed development plan are legally binding documents, but the regional plan and the comprehensive plan can be considered a macro and holistic guidance.40 The national environmental planning effort in the United Kingdom mainly includes the following aspects: air quality; chemicals; land; waste and recycling; noise; water; climate change and energy; consumer products; and environmental problems in agriculture and environmental issues.41 Two of these areas deserve some additional comments for present purposes. The painful lessons of the industrial revolution have prompted a well-defined water use planning system. In the 1950s, the Thames River was seriously polluted, resulting in important health problems for local residents and the disappearance of fish in the river. As a result, the government introduced tough programmes to control environmental pollution and severely punish companies that discharged sewage into the river. In addition to DEFRA and the UK Environment Agency, there are specialized water resources management agencies, as well as a dozen water and sewerage companies licensed to supply water in certain areas. These companies prepare Water Resource Management Plans (WRMPs) that have to conform with UK water laws and the Environment Agency guidelines. WRMPs are prepared through participatory processes and they estimate water availability and use with 36 See Stratégie nationale de transition écologique vers un développement durable (2015–20). 37 M. Larsson and A. Hanberger, Sociologiska institutionen, Institutionen för tillämpad utbildningsvetenskap, Samhällsvetenskapliga fakulteten (Centrum för utvärderingsforskning: Umeå universitet, 2016); M. Larsson and A. Hanberger, ‘Evaluation in Management by Objectives: A Critical Analysis of Sweden’s National Environmental Quality Objectives System’ (2016) 22(2) Evaluation 190–208. doi:10.1177/1356389016638751. 38 Planning and Building Act (Ds 2010:900). 39 Swedish Environmental Code (Ds 2000:61). 40 See ‘How Sweden is planned’, available at: http://www.boverket.se/en/start-in-english/planning/ how-sweden-is-planned/. 41 L. Wei, ‘Policies on UK’s Ecological Environmental Protection and Inspiration’ (2008) 12 Energy Conservation and Environmental Protection 16–17.

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826 wang jin a twenty-five-year horizon. Another important planning effort concerns climate change. In 2006, the UK government put forward a core strategy to address climate change, which culminated in the adoption of the Climate Change Act 2008.42 This Act commits the government to an 80 per cent reduction of greenhouse gas emissions by 2050 as compared with emissions in 1990. To achieve this, the government has to set carbon budgets for intermediate periods and develop policies to achieve them. In addition, the Act requires the government to periodically prepare Climate Change Risk Assessments and to develop a National Adaptation Plan. The EU is currently implementing the 7th Environment Action Programme,43 which sets three broad objectives and two additional priority ones, and it identifies four key ‘enablers’. The overarching objectives relate to: (1) the conservation and enhancement of the EU’s natural capital, (2) the transformation of the EU into an efficient and low-carbon competitive economy, and (3) the protection of EU citizens from environmental health risks and resource constraints. The two additional priority objectives are of a transversal nature and they aim to make cities more sustainable and address global environmental challenges (particularly climate change) more effectively. The enablers involve a better implementation of the relevant legislation, better information, more and wiser investment in environment/ climate-friendly activities, and full integration of environmental dimensions in other p olicies. Although the plan focuses on the period up to 2020, it also includes a longer-term 2050 horizon for the EU. The US EPA’s strategic planning system has three key elements: EPA’s strategic plan, annual performance plan, and performance and accountability report. Each EPA strategic plan covers a five-year period. US environmental strategic planning is goal-oriented. During the preparation process, the goal, objective, sub-objective and strategy target are established. The goal generally includes policies related to clean air and global climate change, clean and safe water supply, soil conservation and rehabilitation, healthy community and ecosystem formation, and the corresponding legal enforcement. The objective reflects the institutional framework used for its implementation, including inter alia capacity-building, performance assessment, assessment feedback, new issues, and external factors. The subobjective covers both the methods and the strategies, which are intended to further elaborate ways and strategies to achieve the goal, such as the environmental projects that are being implemented or planned by the EPA, the provisions of environmental law that are in force, future legislative plans, etc. The strategic target consists of a series of documents of a government reporting type, emphasizing public readability, and generally quite long. The annual performance plan aims at carrying out detailed planning and design for items such as environmental performance objectives, budget allocation, and evaluation methods for one fiscal year. It mainly offers solutions to three questions: how to break down the project objectives on an annual basis, how to use the budget, and how to determine the performance appraisal standards. The performance and accountability report evaluates the work performance through a fiscal year, and it includes discussion and analysis by the baseline, annual performance results, management outcomes and challenges, financial statements, 42 Climate Change Act 2008 c. 27. 43 See ‘Living Well, Within the Limits of Our Planet: 7th EAP—The New General Union Environment Action Programme to 2020’, available at: http://ec.europa.eu/environment/pubs/pdf/factsheets/7eap/ en.pdf.

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environmental planning 827 and appendices. This document serves for the administrative and financial assessment of the EPA’s performance over the relevant year. Regarding financial matters, the US Congress audits the financial status of the EPA based on performance evaluation results each year and the audit results may affect future EPA’s annual budgets, at least in the following three years.44 In Canada, the Federal Sustainable Development Act is the direct legal basis for the adoption of the FSDS.45 The FSDS established a set of sustainable development planning and reporting frameworks relying on three key elements: (1) an integrated and encompassing picture of the sustainability actions undertaking by the entire government; (2) a link between planning in the area of sustainable developments and in the area of government expenditure; and (3) effective measurement, monitoring, and reporting as a means of accountability to the public. The FSDS set goals, targets, and implementation strategies in four priority areas: climate change and clean air; water quality and availability; nature protection; and the reduction of the environmental footprint (starting with the government’s footprint). The FSDS is to be updated every three years and its preparation relies on a participatory process whereby a draft is subject to consultation for no less than 120 days prior to its official release. The contents of the FSDS are defined by the Ministry of the Environment and all relevant government departments must formulate sector-specific sustainable development strategies to which they are bound. In Japan, Article 14 of the Environmental Basic Law requires an integrated and planned formulation and implementation of environmental protection measures. The term ‘plan’ in this context refers not only to the Basic Environmental Plan under Article 15, but has a wider scope within which the Basic Environmental Plan is seen as the centrepiece of a broader environmental protection strategy. In Section 2 (‘Basic Environmental Plan’) of Chapter 2 (‘Basic Counterplans in Environmental Preservation’), Article 15 of the Environ mental Basic Law also deals with the main elements of the Basic Environmental Plan, namely: (1) a comprehensive and long-term outline of environmental protection measures and (2) additional items to enable a comprehensive and planned promotion of environmental protection measures. In China, pursuant to Article 13, paragraph 4, of the Environmental Protection Law, as revised in 2014, ‘[t]he environmental protection plan shall include objectives, tasks and safeguarding measures, for ecological environmental protection and prevention and control of environmental pollution’. For example, the goal of the Eco-Environmental Protection Plan in the 13th Five-Year Plan’s adopted by the State Council in December 2016 is that there will be an overall improvement in ecological quality by 2020. In order to achieve this goal, the plan sets binding targets and indicators, including twelve indicators for binding targets: (i) ratio of excellent days in terms of air quality in the city and above the city; (ii) urban concentration of fine particulate matter remains below the standard level; (iii)–(iv) the quality of surface water as compared to certain types of waterbodies; (v) forest coverage rate; (vi) the forest volume; (vii) the safe utilization rate of polluted arable land; 44 See R. E. Bass, A. I. Herson, and K. M. Bogdan, The NEPA book: A Step-by-step Guide on How to Comply with the National Environmental Policy Act (California: Solano Press Books, 2nd edn. 2002). 45 Sustainable Development Office, Environment Canada, Planning for a Sustainable Future: A Federal Sustainable Development Strategy for Canada, Executive Summary, October 2010, source: Government of Canada, https://www.ec.gc.ca/dd-sd/default.asp?lang=En&n=6E96EE21-1.

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828 wang jin (viii) the safe utilization rate of polluted land; (ix) the chemical oxygen demand; (x) ammonia nitrogen emissions; (xi) sulfur dioxide emissions; and (xii) nitrogen oxide emissions. The Eco-Environmental Protection Plan also clarifies the seven major tasks to be undertaken during the 13th Five-Year Plan: to strengthen the sources of prevention and control; to consolidate the basis of green development; to deepen the quality of management; to vigorously implement the three action plans; the implementation of special governance and the promotion of emission standards and pollution reduction; to strengthen the system of innovation, and to actively promote the governance system and the ability to modernize; and the implementation of a number of major national ecological and environmental protection projects.46

36.3 Implementation of National Environmental Plans 36.3.1 Implementation Techniques National environmental plans can be implemented through a variety of measures. In a number of cases, they have provided the basis for the adoption of new laws, often of a sectoral nature. Other instruments include market mechanisms, regulations, and, in some cases, contractual approaches and a number of voluntary (bottom-up) initiatives. As before, some examples can help to illustrate the variety of methods. In order to implement the SNTEDD 2015–2020, the French government has taken a series of measures, including legislative action. For instance, on the initiative of French Ministry of Environment, Energy and Sea, France adopted in 2015 the Law on Energetic Transition for Green Growth47 and in 2016 the Law on Restoration of Biodiversity, Nature and Landscape.48 Moreover, the Civil Code has, for the first time, explicitly stipulated liability for ecological damages. In addition, the implementation of the SNTEDD relies on a complex network of inter-ministerial,49 national and local committees, some of which are tasked with participatory and consultation processes.50 Significantly, the SNTEDD has also resulted in a number of bottom-up initiatives, as illustrated by the building of a zero-emission school by the community of Saint Hélène in Morbihan at a cost of two million euros.51 46 See the ecological environmental protection part of the ‘13th Five-Year Plan’ issued by China’s State Council. 47 See Loi no. 2015–992 du 17 août 2015 relative à la transition énergétique pour la croissance verte. 48 See Loi no. du 8 août 2016 pour la reconquête de la biodiversité, de la nature et des paysages. 49 The overall implementation of the SNTEDD 2015–20 is entrusted to the Committee of Senior Officials on Sustainable Development (Comité des hauts fonctionnaires au développement durable (CHFDD)). See Code de l’environnement, D134-11. 50 A National Ecological Transition Council (CNTE) has been established by 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. The CNTE is also responsible for organizing public participation processes. See Loi no. 2009–967 du 3 août 2009 de programmation relative à la mise en œuvre du Grenelle de l’environnement. 51 See Stratégie nationale de transition écologique vers un développement durable: Le Rapport au parlement, at 25.

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environmental planning 829 The Netherlands has implemented its NEPP objectives by adopting new environmental laws, designing economic incentive measures and signing voluntary implementation covenants with companies. Covenants are a typical contractual approach to environmental governance whereby certain companies or sectors commit to take certain measures on a voluntary basis as a way of pre-empting potentially more restrictive top-down regulation. That creates some coordination challenges for the government, which must articulate regulatory and self-regulatory approaches. But such articulation remains necessary because the NEPP recognizes that government action alone is not sufficient. Collaboration between the object groups of NEPP52 and the competent agencies is thus very important. The NEPP can require these object groups to take specific actions. Environmental plans and policies in the United Kingdom are implemented by the Environment Agency. The implementation of UK national environmental plans has two main features. First, the degree of delegation of environmental governance to a variety of non-governmental bodies is significant. The UK national and local governments have delegated general measures of environmental management to relevant social groups, intermediaries, and advisory and certification bodies. Second, implementation relies on a combination of market mechanisms and regulatory techniques.53 British environmental laws and regulations are strict, with administrative, criminal, and civil liability potentially attached to unlawful conduct. In addition, since the 1970s, the British government has regarded market mechanisms as important policy measures for protecting the natural environment and maintaining ecological balance. The polluter-pays principle has been implemented through taxes, subsidies, and other economic measures. One technique is the levy of environmental management fees in connection with pollutant discharges by companies. By paying these fees, companies can discharge pollutants up to a certain amount, beyond which a penalty (usually a hefty fine) applies. Another technique is the use of environmental taxes, such as a climate change levy, an air passenger duty, an environmental tax on motor vehicles, a landfill tax, a trash tax, etc. As for subsidies, the main purpose is to establish a compensation system for losses, such as encouraging farmers to use fewer fertilizers, and turning farmland into grassland. In the United States, national environmental plans and practices are shaped by the specific federal structure and distribution of powers in the US Constitution. The federal and state governments share environmental protection power, but the federal government cannot enact legislation and plans in relation to environmental protection matters that fall within the authority of states. Hence, disputes between the federal and state level on the distribution of environmental protection power are frequent.54 An example is provided by climate change action which, so far, has been adopted essentially at the state level (e.g. California or the Regional Greenhouse Gas Initiative bringing together several states from the East Coast). The attempts in 2009 to adopt a federal climate change act were unsuccess52 The NEPP groups includes actors from the fields of agriculture, transportation, industry, oil refining, electric appliance, gas, construction, environment related industry, consumer, small companies, education and other social groups (mostly environment and labour related groups). 53 F. Xu, ‘Research on Issues of Policies about Environmental Protection in UK’ (2015) 11 Liaoning Urban and Rural Environmental Science & Technology 19–20. 54 R. W. Findley, D. A. Farber, and J. Freeman, Cases and Materials on Environmental Law (Minnesota: Thomson West, 6th edn. 2003), 33–8.

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830 wang jin ful and even the more limited approach pursued by the Obama administration under the Clean Air Act, that is, the Clean Power Plan (CPP), was structured around a state layer (states were expected to adopt climate policy to curb emissions from coal-fired power plants) and a federal layer (applicable in the absence of a state-level system). The CPP was suspended by the Supreme Court as a result of legal action brought by a group of states and companies. Aside from the federal-state articulation, the United States has resorted to a wide variety of regulatory approaches, market mechanisms, and contractual approaches to implement environmental policy, including transferable pollution rights related to acid rain and wetland protection. However, the United States lacks both a national environmental research plan and a mechanism for generating one. Each federal agency involved with environmental research has its own programmes. There is some information transfer among agencies, but it is irregular, unsystematic, and not based on stable arrangements.55 Coordination between federal agencies and other institutions in the United States is sporadic and often adversarial. Few efforts are under way to coordinate environmental plans with those in other countries.56 The experience of United States’ environmental planning system shows that there must be a mechanism for establishing, monitoring, and, when appropriate, modifying a national environmental research plan.57 Such a mechanism is necessary to establish long-term feasible goals to avoid fragmentation of effort. Today, researchers often investigate isolated components of key problems and waste scarce financial and intellectual resources by needless duplication of efforts. In China, environmental protection legislation only states the requirements for the formulation of national environmental protection plans, but not their binding effects. As a result, between 1986 and 2010, China’s national environmental protection planning goals were not achieved, and its ecological conditions significantly deteriorated. This trend has only started to be reversed with the inclusion in 2012, during the 18th National Congress of the Communist Party, of the ‘Ecological Civilization Construction’ in the overall national development strategic layout. In the Eco-Environmental Protection chapter of the 13th Five-Year Plan, adopted by the State Council in December 2016, five specific approaches the implementation of environmental plans have been introduced: (1) publicizing plans and mobilizing social forces to participate in ecological and environmental protection; (2) assigning key tasks in the plans in accordance with relevant duties, so as to make departmental responsibilities clear, breaking down responsibility for mandatory indicators, and coordinating all departments in promoting the implementation of plans; (3) implementing major projects and reform measures, establishing project libraries, strengthening project promotion mechanisms, and actively promoting a quick implementation of major reform policies; (4) promoting social co-governance, improving the social supervision mechanism, keeping public inspection channels smooth, and actively organizing the people to orderly participate and supervise the implementation of plans; (5) carrying 55 G. E. Frug, R. T. Ford, and D. J. Barron, Local Government Law: Cases and Materials (Minnesota: West Academic Publishing, 2017), 314–17. 56 R. G. Arendt, Growing Greener: Putting Conservation into Local Plans and Ordinances (Washington D.C.: Island Press, 1999), 77. 57 P. F. Steinberg, Comparative Environmental Politics: Theory, Practice, and Prospects (Cambridge M.A.: The MIT Press, 2012), 49.

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environmental planning 831 out regular monitoring and assessment processes relating to the implementation of plans, with a mid-term assessment at the end of 2018, and a final assessment in 2020. The results of these assessments will be reported to the State Council, and subsequently made public and even incorporated into the comprehensive assessment system for leading cadres.58

36.3.2 Legal Effects of National Environmental Plans In several countries, the national environmental plans established under the environmental protection framework laws must often be coordinated with other planning processes on environment-related sectors managed by other departments of governments as well as at different levels of government. These plans reflect express legal mandates enshrined in the relevant laws. The specific legal basis upon which national environmental plans rest is important because, in accordance with the principle of legality (or other manifestations of the same idea), if a national environmental plan lacks a clear legal basis, its contents cannot interfere with the entitlements and rights of the affected stakeholders. Thus, when the specific legal nature of a plan is unclear, it may be more easily subject to challenge. At the EU level, among the many law and policy sources relating to the environment, the EU Environment Action Programmes have a unique position and role. From the perspective of both content and comprehensiveness, they spell out the EU basic treaties and go beyond many environmental directives, regulations, and other forms of secondary legislation.59 The EU’s Environment Action Programme is thus a high-level policy instrument that sets the base for future normative development through secondary legislation.60 In Sweden, only sectorial regulations and the detailed development plan are legally binding documents. However, the regional plan and the comprehensive plan can be considered as a kind of macro and holistic guidance, and are therefore not deprived of some legal effects.61 In the United Kingdom, the planning approach significantly differs from those in other countries due to the scope of delegation to local authorities. Indeed, local authorities have a great deal of discretion and, in some cases, they can even approve development projects that are inconsistent with broader policies and plans. This is because plans only have a broad orientation function through the definition of goals and policies. That leaves significant room of local variation. In order to manage such variation, a UK Planning Inspectorate, with jurisdiction over England and Wales, has been established to examine local plans, hear planning appeals, and approve national infrastructure planning applications under the Planning Act 2008, among other things.62 In Japan, the Basic Environmental Plan adopted under the Environmental Basic Law is an administrative instrument, binding upon the administrative agencies to which it

58 See the Ecological environmental protection part of the ‘13th Five-Year Plan’ issued by the State Council in China on 24 November 2016. 59 L. Chenyang, ‘The Development and Features of the European Union Environment Policy’ (2014) 2 International Data Information 14. 60 C. Shouqiu, Study on EU Environmental Policy and Law (Wuhan: Wuhan University Press, 2002), 105. 61 http://www.boverket.se/en/start-in-english/planning/how-sweden-is-planned/. 62 L. Yu, ‘Planning Inspectorate: Experience of UK Mechanism’ (2007) 22(2) Urban Planning International 72–3.

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832 wang jin applies.63 Given that the Basic Environmental Plan is a central instrument formulated and adopted by the Cabinet of Ministers, other more specific and sectorial plans must follow the orientation given by the Basic Environmental Plan.64 In China, the existing environmental and resource laws do not specifically mention the legal effects of environmental plans on people and the private sector. Plans govern the action of the government, at different levels, and their main implementation avenues is through requirements imposed on governments as well as on performance assessments of high cadres. When the implementation of plans has external effects on citizens or companies, their elaboration and approval may be subject to legal challenge and judicial review. But local governments typically coordinate the implementation of environmental plans by them with systems adopted by companies. Moreover, when the content of environmental plans has been incorporated in legislation or regulation, the requirements set out in such plans are generally binding upon the population.

36.4 Concluding Remarks The brief analysis of environmental plans conducted in the foregoing paragraphs clearly suggests that plans, in the broad understanding used in this chapter, are a major instrument of environmental law and policy across jurisdictions. Their use became increasingly accepted during the 1970s and consolidated by the end of the twentieth century. Environmental plans are generally used as a preventive and integration technique, to organize the action of different departments of government with a view to the future. Integration is important not only across environment-related sectors but also as regards the sectors of the economy that may be affected by the introduction of environmental policy. Over time, the areas covered by environmental plans have become more and more diverse, from local, to regional, to global environmental problems. The coordination processes have therefore become very complex, as governmental action must be orchestrated across sectors but also from the local to the national and even the regional and international levels. Although, as a rule, environmental plans are only intended to guide or bind the action of the administration, in some cases they may have direct effects on individuals and companies. This is why such plans are increasingly developed through a range of participatory processes and implemented not only through regulatory (top-down) techniques but also through market mechanisms and contractual (voluntary) techniques. The examples of China, the EU, France, the Netherlands, Sweden, the United Kingdom, and the United States briefly discussed in this chapter offer representative illustrations of the emergence and consolidation of environmental plans, their underlying rationales, the processes through which they are formulated, the areas most frequently addressed by them, the range of measures that can be used to implement them, and their legal effects. Most significantly, they show that the role of environmental plans is generally to provide a framework for the operation of other instruments analysed in other chapters of this volume. 63 Tadashi, Environmental Law, at 195. 64 Environment Office Planning Adjustment Bureau Planning Adjustment Division: Environmental Basic Law Interpretation, at 203–4.

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environmental planning 833

36.5 Select Bibliography Bass, R. E., A. I. Herson, and K. M. Bogdan, The NEPA Book: A Step-by-step Guide on How to Comply with the National Environmental Policy Act (California: Solano Press Books, 2nd edn. 2002). Ciyang, C., Environmental Law (Taipei: Yuanzhao Publishing, 2003). Environment Office Planning Adjustment Bureau Planning Adjustment Division, Environmental Basic Law Interpretation (Gyosei Corporation, 1994). Findley, R. W., D. A. Farber, and J. Freeman, Cases and Materials on Environmental Law (Minnesota: Thomson West, 6th edn. 2003). Geng, W., Theory and Practice of Administrative Law (Taipei: San Min Book Co. Ltd, 2006). Gilpin, A., Dictionary of Environmental Law (Cheltenham: Edward Elgar, 2000). Godard, O. and J.-P. Céron, Planification décentralisée et modes de développement: L’expérience du Bureau méridional de planification agricole en Provence (xxx: Les Editions de la MSH, 1985). Massé, P., Le Plan, ou l’Anti-hasard (Paris: Gallimard, 1991). Shouqiu, C., Study on EU Environmental Policy and Law (Wuhan: Wuhan University Press, 2002). Tadashi, O., Environmental Law (Tokyo: Yuhikaku Publishing, 2002). Wei, L., ‘Policies on UK’s Ecological Environmental Protection and Inspiration’ (2008) 12 Energy Conservation and Environmental Protection 16. Wolff, H., Administrative Law vol. II, trans. G. Jiawei (Beijing: The Commercial Press, 2002).

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Chapter 37

Protection of Site s Colin T. Reid

37.1 Overview

834

37.2 Definition and Classification

836

37.3 Layers of Law and Governance

838

37.4 Designation

839

37.5 Management and Control

842

37.6 Enforcement

847

37.7 Marine Protected Areas

848

37.8 Challenges for the Future

850

37.9 Select Bibliography

851

37.5.1 Plans 37.5.2 Land Ownership and Local Populations 37.5.3 Controls on Activity 37.5.4 Positive Conservation

842 843 844 846

37.1 Overview Once it has been decided that elements of the natural world and ‘its flora, fauna, or geological or physiographical features’1 should be protected, an obvious step is to identify areas of land2 which are of particular value for this purpose and to ensure that they are protected from damaging activities. Such care for habitat is a vital aspect of effective 1 Wording from the UK’s Wildlife and Countryside Act 1981, s. 28. There can be considerable discussion over the terminology to be used—nature, biodiversity, wildlife, natural heritage—but for present purposes loose but readable phrases will be used except where specific points have to be made; see C. T. Reid and W. Nsoh, The Privatisation of Biodiversity? (Cheltenham: Edward Elgar, 2016), 5–6. 2 Marine protected areas pose distinct challenges which are addressed briefly at the end of this chapter, which concentrates on terrestrial sites.

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protection of sites 835 conservation since there is no point in laws protecting species of birds and animals from direct harm if they have nowhere to live. There are however many other claims on the land and striking the balance between protecting nature and other rights and interests may prove challenging. In the last century and a half,3 the number and variety of protected sites have expanded greatly, with measures at international, regional, national, and local levels. Over time the focus of this conservation effort has changed. In the first place, experience has shown that more must be done to conserve sites in good health than simply stopping the most obviously harmful forms of exploitation (such as felling forests or excavating quarries). Positive management is often needed to ensure that sites can provide the benefits for biodiversity which are desired. Secondly, it has increasingly been realized that protecting individual sites in isolation will not by itself be effective and that the health of the wider ecosystem must also be cared for. Attention has thus moved from protecting discrete sites to conserving habitats and now to the adoption of the ecosystem approach which seeks to achieve a healthy environment across a broader canvas (as discussed at the end of this chapter). Nevertheless, protected areas continue to play a vital role and are recognized as ‘essential for biodiversity conservation’ and as ‘the cornerstones of virtually all national and international conservation strategies’.4 Yet the term is used as ‘shorthand for a sometimes bewildering array of land and water designations’,5 with one estimate putting at approximately 800 the number of varieties of protected areas that exist.6 The complexity is increased since any given legal framework can in practice be used and operate in different ways. Even though the reason for marking out areas of land as ‘special’ may have nothing to do with protecting nature, biodiversity can benefit from land being set aside from ‘business as usual’ and sheltered from the standard pressures for exploitation or development. Spiritual and sacred motivations, where respect for nature is often an element in the beliefs behind venerating the site, are probably the most ancient basis for such special treatment. Sacred sites and sanctuaries allow space for nature to flourish and these have a more enduring legacy beyond the Western world.7 In the European past, other motivations were apparent, for example the creation of hunting grounds reserved for royalty and the nobility had the sideeffect of enabling some forests to survive as their neighbours were felled. In modern times, surprisingly rich habitat can be provided by large military training areas, such as Salisbury Plain in England where the military areas have escaped the degradation of biodiversity brought about by the ever more intensive agricultural practices on the surrounding land. The focus here, though, is on designations of land consciously made for the purpose of conserving nature. In considering such protected areas, there are two main aspects to consider, the form and basis of designation and the legal tools used to ensure that the land in question is managed to achieve the desired goals. On both points the position is complicated by three features. 3 A. Gillespie, Protected Areas and International Environmental Law (Leiden: Martinus Nijhoff, 2007), 7–8; see generally, A. Cliquet and H. Schoukens, ‘Terrestrial Areas Protection’ in E. Morgera and J. Razzaque (eds), Biodiversity and Nature Protection Law (Cheltenham: Edward Elgar, 2017). 4 N. Dudley (ed.), Guidelines to Applying Protected Area Management Categories (Gland: IUCN, 2008), 2. 5 Ibid., at 3. 6 Gillespie, Protected Areas and International Environmental Law, 27. 7 A. Hamzah, D. J. Ong, and D. Pampanga, Asian Philosophy of Protected Areas (IUCN Asia Regional Office Bangkok, 2013).

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836 colin t. reid The first is the potential for overlapping designations and legal regimes to exist, so that the same area of land may be subject to several different designations, serving different purposes, carrying different legal consequences and stemming from different legal bases. This can be exacerbated by the second feature which is the existence of designations which may have a considerable profile but exist only as a matter of policy or self-declaration or within international law, without carrying any formal legal status or consequences within national legal systems.8 Thirdly, a common feature is for the legislation on the designation of sites to set out a broad framework of possible controls and interventions, whilst leaving it to individual site-specific decisions to determine exactly what is or is not permitted or required at each site.

37.2 Definition and Classification The sheer diversity and variety of arrangements for protected sites create a very messy picture, exacerbated by the inconsistent use of terminology. Some order is brought to this area by the IUCN’s work on definition and classification. Their Guidelines to Applying Protected Area Management Categories present a definition setting out the essential features constituting a protected area:9 A clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values.

This is supported by two pages expanding on the meaning of the terms used and by a classification system distinguishing different categories of protected area, based on their purposes and main effects. This classification will not capture all the varieties that exist at the national level, and the terms used for sites will often not match those used by the IUCN, for example sites labelled as ‘National Parks’ may belong in any of the categories listed.10 The classification is:11 Ia Strict nature reserve Category Ia are strictly protected areas set aside to protect biodiversity and also possibly geological/ geomorphological features, where human visitation, use and impacts are strictly controlled and limited to ensure protection of the conservation values. Such protected areas can serve as indispensable reference areas for scientific research and monitoring. 8 e.g. although in both cases effective protection is provided in practice through the existence of other designations affecting all the sites in question, in the UK Biogenetic Reserves under the Bern Convention (Convention on the Conservation of European Wildlife and Natural Habitats, 1979) carry no legal status and sites designated under the Ramsar Convention (Convention on Wetlands of International Importance especially as Waterfowl Habitat, 1971) are legally noted but the designation by itself carries no legal consequences in domestic law; Wildlife and Countryside Act 1981, s. 37A, Nature Conservation (Scotland) Act 2004, s. 38. 9 Dudley, Guidelines to Applying Protected Area Management Categories, at 8. 10 Ibid., at 11. 11 For fuller details, including on how each category differs from the others, see ibid., at 11–24.

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protection of sites 837 Ib Wilderness area Category Ib protected areas are usually large unmodified or slightly modified areas, retaining their natural character and influence, without permanent or significant human habitation, which are protected and managed so as to preserve their natural condition. II National park Category II protected areas are large natural or near natural areas set aside to protect largescale ecological processes, along with the complement of species and ecosystems characteristic of the area, which also provide a foundation for environmentally and culturally compatible spiritual, scientific, educational, recreational and visitor opportunities. III Natural monument or feature Category III protected areas are set aside to protect a specific natural monument, which can be a landform, sea mount, submarine cavern, geological feature such as a cave or even a living feature such as an ancient grove. They are generally quite small protected areas and often have high visitor value. IV Habitat/species management area Category IV protected areas aim to protect particular species or habitats and management reflects this priority. Many category IV protected areas will need regular, active interventions to address the requirements of particular species or to maintain habitats, but this is not a requirement of the category. V Protected landscape/seascape A protected area where the interaction of people and nature over time has produced an area of distinct character with significant ecological, biological, cultural and scenic value: and where safeguarding the integrity of this interaction is vital to protecting and sustaining the area and its associated nature conservation and other values. VI Protected area with sustainable use of natural resources Category VI protected areas conserve ecosystems and habitats, together with associated cultural values and traditional natural resource management systems. They are generally large, with most of the area in a natural condition, where a proportion is under sustainable natural resource management and where low-level non-industrial use of natural resources compatible with nature conservation is seen as one of the main aims of the area.

As this list shows, protected areas can serve a number of purposes and strike a different balance between areas left wholly to nature and those combining conservation objectives with other uses of the land. The sliding scale of the extent to which concurrent uses are permissible is a significant feature in the categorization of protected areas and inevitably is reflected in the different approaches to designation of areas and to the legal consequences that follow. In some protected areas the local inhabitants are able to continue their lives largely unaffected—indeed continuing their long-term management practices may be a major factor in ensuring the site’s enduring ecological value. Protected status serves merely to restrict major new developments which depart from and disrupt the traditional uses of the land. In other areas, preventing all substantial human intervention is seen as being vital to secure the ecological health of the site, so that little if any economic activity can proceed. In between, areas and their resources may continue to be subject to exploitation but the nature or intensity

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838 colin t. reid of that are constrained to ensure that concern for nature can overcome, or at least compete strongly against, the economic and social priorities which usually dominate decisions on how land is used, to the detriment of biodiversity. Such constraints will have varying impacts on the economic and cultural well-being of the local residents and their freedom to act in ways that affect their surroundings.

37.3 Layers of Law and Governance The diversity of protected areas is further affected by the fact that the legal basis for these, and the governance arrangements, can be found at different levels, and may require cooperation between levels. Some designations are parts of schemes or networks operating on a global scale (e.g. those under the Ramsar Convention) whereas others can be the product of community initiative at a very local level. In between there are regional schemes (e.g. Article 12 African Convention on the Conservation of Nature and Natural Resources), national schemes (e.g. National Parks) and those that rely on action by local government. As an illustration of this complexity, of the twenty-four types of protected area listed in Scottish Natural Heritage’s ‘Protected Areas A–Z’,12 four are based on global schemes (three under the auspices of UNESCO), four on European ones (three under the EU and one the Council of Europe), nine are national schemes, six depend on local authority action, and the final one is community-based. These layers can interact in different ways. A designation made in accordance with an international scheme may by itself carry no consequences in domestic law, but this does not mean that the site is not legally protected since it may be designated under a national scheme which does have direct consequences in domestic law. Thus within the United Kingdom, the fact that a site is designated as a World Heritage Site by itself has no legal consequences, or even recognition, in national law, but the sites in question are all subject to strict protection under other provisions; for example St Kilda is a World Heritage Site and also both a Special Area of Conservation and a Special Protection Area under EU law, as well as being a National Nature Reserve and Site of Special Scientific Interest under national law, all of which impose substantial controls designed to secure its conservation. The adoption of such concrete legal controls can be either a prerequisite for or consequence of recognition at international level. Regardless of the origin of the designation, the practical control or management of a protected area can also lie at different levels. National sovereignty restricts international bodies to at most an oversight role, but within each country there is again scope for wide variation.13 Departments of national government can play a decisive role, or responsibility can be handed over to specialist agencies, operating at national level or unique to each protected area, whilst local government may also be involved. Where agencies are involved, their focus and expertise may be largely centred on science and conservation or they can have wider remits reflecting a broader range of interests. Wherever responsibility lies from a governmental 12 http://www.snh.gov.uk/protecting-scotlands-nature/protected-areas/protected-areas-az/; this part of the website has now been restructured. 13 Dudley, Guidelines to Applying Protected Area Management Categories, at 26.

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protection of sites 839 perspective, there will be varying degrees of cooperation with other stakeholders—land owners, local residents, and others whose activities affect the state of the protected area, or are affected by restrictions imposed for its protection. Indeed management and control can be left wholly out of public sector hands but the site can be accepted as part of an officially recognized scheme so long as certain standards are observed.14

37.4 Designation Designations of protected areas can be made at any level of government, from the global to the local. In some circumstances international treaties themselves declare specific areas to be subject to restrictions for environmental reasons, such as Antarctica and its surrounding waters.15 More commonly, global treaties such as the World Heritage Convention16 or the Ramsar Convention17 call on parties to identify and designate areas within their territory meeting the criteria set for designation. The designation can be a matter wholly for the state concerned or can involve more formal approval through a process established under the treaty. For example, the Ramsar Convention does not prescribe any formalities for the designation of protected wetlands,18 whereas in the case of the World Heritage Convention there is a detailed procedure involving assessment and approval of national nominations by the World Heritage Committee before a site is accepted onto the official list (and a procedure for deleting sites).19 States commonly have wide discretion over how many, if any, sites they nominate or designate,20 and states will vary in the enthusiasm shown for this task. The criteria set in international documents can vary in their objective and specificity, and are often fairly wide. The Ramsar Convention focuses on wetland but their ‘international significance’ can be based on ‘ecology, botany, zoology, limnology or hydrology’.21 World Heritage Sites must be of ‘outstanding universal value’ but can be physical and biological formations, geological and physiographical formations or areas which constitute the habitat of threatened species of animals and plants and their value can be aesthetic or based on the

14 e.g. in the United Kingdom, although the management of most National Nature Reserves is at least supervised by a statutory conservation body, Reserves can be declared on land managed by other bodies approved by the authorities; Wildlife and Countryside Act 1981, s. 35(1). 15 Antarctic Treaty (1959) and its Protocol on Environmental Protection (1991) and Convention on the Conservation of Antarctic Marine Living Resources (1980). Arguably some provisions of the 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)—and more strongly the less-widely ratified Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (1979)—could be said to do the same for areas beyond the Earth. 16 Article 11 Convention Concerning the Protection of the World Cultural and Natural Heritage (1972). 17 Article 2 Ramsar Convention. 18 Ibid. 19 Article 11 World Heritage Convention and UNESCO Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage, Operational Guidelines for the Implementation of the World Heritage Convention (WHC.15/01). 20 Unusually the Ramsar Convention requires each state to designate at least one site on becoming a party (Art. 2(4)). 21 Article 2(2) Ramsar Convention.

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840 colin t. reid point of view of science or conservation.22 Such criteria allow for considerable discretion in selection, which can be based on the overall nature of an area or one specific feature.23 In most cases there will be no sanctions if obvious candidates for designation are omitted. One notable exception, though, is within the EU, where the obligation on Member States to designate suitable sites under the Birds and Habitats Directives24 is policed by the European Commission, which takes legal action if insufficient sites are being designated25 or sites that meet the criteria are excluded on extraneous grounds.26 In this they have been further supported by the Court of Justice of the European Union (CJEU) which has said that although sites which have been improperly omitted from designation cannot be treated as if they had been designated, the state still has legal obligations to ensure their protection.27 A similar pattern exists at regional, national, and local levels, with designation criteria reflecting narrow or broad objectives.28 The criteria may focus on particular features which are to be protected, and nothing more, or may allow for ‘buffer zones’ that strengthen the core protection by also imposing controls on the surrounding area. Some designations may be based on specific primary legislation achieving that effect,29 others require subordinate legislation30 whilst others rest simply on a declaration by the relevant statutory authority.31 Protected areas should be officially recorded, including registration in the appropriate land register where this is a feature of the wider laws on land holding. The designation process may involve more or less consultation with land owners, local residents, and the public,32 and impose powers or duties as to marking the boundaries of the protected areas.33 Setting the boundaries of the protected area is an obviously essential task and ‘[h]istorically, some 22 Article 2 World Heritage Convention. 23 Such as the handful of over-wintering sites which prompted the designation of the Monarch Butterfly Biosphere Reserve in Mexico, a World Heritage Site; see: http://whc.unesco.org/en/list/1290. 24 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. 25 Case C-235/04 Commission v Spain [2007] ECR I-5415. 26 Case C-371/98 R v Secretary of State for the Environment, Transport and the Regions, ex parte First Corporate Shipping Ltd [2000] ECR I-9253. 27 Case C-117/03 Società Italiana Dragaggi SpA and Others v Ministero delle Infrastrutture e dei Trasporti and Regione Autonoma Friuli Venezia Giulia Case [2005] ECR I-167, Case C-186/06 Commission v Spain [2007] ECR I-12,093. 28 e.g. the National Park aims applied in Scotland include conservation and enhancement of the natural and cultural heritage and promoting sustainable use of resources, recreation and sustainable economic and social development; National Parks (Scotland) Act 2000, s. 1. 29 e.g. the legislation originally creating the Yellowstone National Park in the United States; An act to set apart a certain tract of land lying near the headwaters of the Yellowstone River as a public park, (approved 1 March 1872; 17 Stat. 32). 30 e.g. in Mexico: Diario Oficial. 1980. Decreto que declara zonas de reserva y refugio silvestre, lugares donde la mariposa inverna y se reproduce. Órgano del Gobierno Constitucional de los Estados Unidos Mexicanos, Mexico City, 9 April. 31 e.g. nature reserves in the United Kingdom under the National Parks and Access to the Countryside Act 1949, s. 19. 32 Within the United Kingdom, compare the limited requirements in England and Wales under the Wildlife and Countryside Act 1981, s. 28 with the broader ones in Scotland under the Nature Conservation (Scotland) Act 2004, ss. 38 and 48(2). 33 e.g. in England and Wales, Wildlife and Countryside Act 1981, s. 28S.

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protection of sites 841 of the most effective boundaries have been those that followed clear topographical or physical features such as ridge lines or rivers’.34 Such boundaries ‘often coincide, with habitats, species ranges or ecosystems’,35 and although it is less likely that a river will mark a sharp divide between ecosystems, the advantages of a clear and easily visible boundary may justify this choice. Notification of land owners and occupiers, notices at obvious access points, and publication of maps and guides all have role to play in ensuring that the designation and its effects are known. Two further issues arise, transitional arrangements and de-designation. The procedural stages required for designation, providing both the wide participation and the formality that contribute to the effectiveness and legitimacy of the process, inevitably take time and there is a danger that during this time things occur which damage the conservation value of the site. This can be either an incidental consequence of wider development activity or a deliberate attempt to remove the attractions of the site, thwarting the proposal to designate the site and the restrictions on its use that will ensue. Accordingly some interim measures may be required to ensure that not only formally designated sites but also those under consideration receive at least some protection. In England and Wales damage to some sites during the designation process led to changes in the law so that designations of Sites of Special Scientific Interest take full effect as soon as a site is formally proposed, but subject to confirmation after the process of consultation and consideration of representations has been completed.36 Within the EU, the Court of Justice has insisted that although the full terms of the provisions protecting sites can apply only to those at an advanced stage of the designation process, from the beginning there is an obligation on states to protect the ecological interest of sites being proposed for designation.37 The question of de-designation arises either when providing protection for a site no longer fits with conservation or wider policy priorities,38 or when physical changes (to the site itself or to the distribution or status of species using it)39 mean that it no longer deserves special legal consideration on ecological grounds. The legislation introduced to allow for the creation of protected areas may not have envisaged this eventuality,40 but it is something that should be provided for to avoid the continuing existence of legal measures which serve no useful purpose or stand in the way of what are seen as more important objectives. Such provisions, though, should require a degree of formality and due process to ensure that

34 B. Lausche, Guidelines for Protected Areas Legislation (Gland: IUCN, 2011), 154. 35 Ibid. 36 Wildlife and Countryside Act 1981, s. 28 (as amended); see C. Reid, Nature Conservation Law (Edinburgh: W. Green, 1st edn. 1994), 156. 37 Case C-117/03 Società Italiana Dragaggi SpA and Others v Ministero delle Infrastrutture e dei Trasporti and Regione Autonoma Friuli Venezia Giulia Case [2005] ECR I-167; Case C-244/05 Bund Naturschutz in Bayern eV and Others v Freistaat Bayern [2006] ECR I-8445. 38 See e.g. Art. 2(5) Ramsar Convention, allowing sites to be deleted or restricted ‘because of . . . urgent national interests’ and in the United States the Presidential Executive Order on the Review of Designations under the Antiquities Act (26 April 2017). 39 This can be the result of either good news (the recovery of a once threatened species which no longer requires special care) or bad news (the local or global extinction of a species a site was designated to protect). 40 In Scotland e.g. the designation of Sites of Special Scientific Interest was introduced in 1949 with major strengthening in 1981, but it was not until 2004 that a ‘denotification’ process was introduced; Nature Conservation (Scotland) Act 2004, s. 9.

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842 colin t. reid e-designation requires full and proper consideration, rather than being an easy option as d soon as a designation proves to be inconvenient for other plans or policies.

37.5 Management and Control Effective conservation of a protected area will require some legal measures to ensure that the land is managed in an appropriate way and damaging activities prevented. Merely declaring an area to be protected will not by itself ensure that this is the case, although depending on the wider context a bare declaration may not be wholly without effect. The raised awareness of the value of the natural features of an area may help to alter attitudes and ensure that biodiversity interests are recognized and given more priority in public and private decision-making, especially if this can be linked to other measures such as financial incentives for activities which support the conservation goals. Given that effective conservation that ensures the enduring health of an ecosystem requires a long-term commitment affecting all aspects of how land is managed and used, not just the prohibition of a few discrete operations, encouraging voluntary cooperation with conservation goals is desirable, but such encouragement may be more successful against a background of stronger legal measures which can be invoked if necessary.

37.5.1 Plans Whatever the particular mechanisms used, the care of a protected area will be better if it is undertaken in line with a properly conceived management plan. Effective conservation requires a long-term commitment and coordination of various elements, and this can only be achieved within the framework of coherent plan or strategy.41 Plans should allow for an element of ‘adaptive management’ rather than being wholly prescriptive, maintaining the overall conservation goals but allowing the short- and medium-term steps being adopted to change in response to changing circumstances and increased knowledge and experience of what is most effective.42 The nature of such plans will vary according to the scale and nature of the protected area, and in many cases a hierarchy of plans, from landscape to site-specific levels may be appropriate. Again there is scope for much variation in terms of who is responsible for drawing up the plan, the formal procedures for its production and approval, and its legal status in relation to subsequent decision-making that may affect the area.

41 Lausche, Guidelines for Protected Areas Legislation, at 29–33. 42 ‘The ecosystem approach requires adaptive management to deal with the complex and dynamic nature of ecosystems and the absence of complete knowledge or understanding of their functioning. Ecosystem processes are often non-linear, and the outcome of such processes often shows time lags. The result is discontinuities, leading to surprise and uncertainty. Management must be adaptive in order to be able to respond to such uncertainties and contain elements of “learning by doing” or research feedback. Measures may need to be taken even when some cause-and-effect relationships are not yet fully established scientifically.’ Fifth Ordinary Meeting of the Conference of the Parties to the Convention on Biological Diversity, 15–26 May 2000—Nairobi, Kenya (CBD-COP 5), Decision V/6 para. 4.

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protection of sites 843

37.5.2 Land Ownership and Local Populations Conservation laws are likely to impose specific legal obligations, whether positive or negative, requiring or prohibiting certain things, but at a more basic level control can be achieved simply through the powers of the land owner. The owners of land essentially determine what is going to happen on it, including the presence and conduct of other parties on the land. Therefore, where the owners are committed to furthering the conservation of a protected area, their powers alone go a long way to securing that goal. Placing (or retaining) protected areas in the hands of such owners is therefore a powerful way of protecting their future. Where land is in the hands of the state,43 this may suffice, but only so long as conservation remains a sufficiently prioritized policy objective. Experience shows that the conflicting pressures on a national or local government, especially the desire for economic development, may undermine the commitment to conservation, particularly in relation to major infrastructure projects. Furthermore, legal restrictions may limit how far some authorities can promote certain goals (such as conservation) at the expense of their other responsibilities,44 so that greater security for long-term conservation can be provided through the use of a body legally bound to act in a way that supports biodiversity. This can be a statutory conservation body or a charitable or other NGO bound by its governing legislation or articles to act in furtherance of conservation goals. Where land is already in other hands, though, there may be substantial financial costs entailed in acquiring the property, although the reluctance of owners can be overcome by powers of compulsory purchase.45 There are, however, many situations where ownership of the land may not be a straightforward matter. Formal property rights may not fully reflect the rights and interests of those using the land, especially in countries where legal systems were slow to recognize the rights of indigenous peoples and their reliance on the land and its produce. Even where property rights are well-established, the land owner may not hold all the legal rights over the land.46 The rights of tenants, of those holding mineral or game rights or even rights of way or public rights of access to land, will all limit how far the land owners themselves can determine what will happen on the land. In conservation terms this may have mixed effects. It may be more feasible and more affordable for a conservation body to lease an area of land than to buy it outright from the current owner. Where mineral or game rights are held separately from the underlying ownership of the land itself, if these are in the hands of those keen to exploit them that may thwart the land owner’s wishes to protect nature on the land, but the acquisition and non-exercise of these rights by those favouring conservation may provide a degree of protection without the obstacles in the way of obtaining full ownership. Other 43 In Alaska e.g. less than 4 per cent of the land in the National Parks is not owned by the federal government; https://www.nps.gov/articles/aps-v13-i2-c3.htm. 44 e.g. in England, R v Somerset County Council, ex parte Fewings [1995] 1 WLR 1037 where it was held that the moral considerations leading to a ban on hunting deer with hounds were legally irrelevant in the council’s decisions over the use of its own property. 45 e.g. for National Nature Reserves in the United Kingdom, compulsory purchase is available where an agreement to manage the land appropriately cannot be reached on reasonable terms or where such a management agreement has been breached; National Parks and Access to the Countryside Act 1949, s. 17. 46 W. Nsoh and C. Reid, ‘Privatisation of Biodiversity: Who Can Sell Ecosystem Services?’(2013) 25 Environmental Law and Management 12.

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844 colin t. reid property rights may also have a part to play in effective conservation,47 such has the growing interest in conservation easements or covenants, using property-based mechanisms to provide long-term restrictions on the use of land to secure conservation goals, enabling terms agreed by the current owner to ‘run with the land’ and bind future owners.48 Issues of land ownership link with the role of those who live on the land, particularly indigenous peoples. Few, if any, areas of the world are true wilderness, wholly untouched and unused by local populations and how their interests and rights are treated is a significant issue in the creation and management of protected areas. As noted earlier in this chapter, such areas can allow for varying degrees of concurrent uses and there is a wide variety of experience over time and place. The creation of protected areas has at times been seen as requiring the forced relocation of populations living in the areas affected, on the basis that their exploitation of natural resources was a threat to the conservation enterprise.49 Such total disregard for the rights of local residents is, one hopes, a thing of the past, but especially where indigenous peoples’ interests are not fully reflected in legal rights of land ownership, there remains a danger that they suffer significant disadvantage as conservation policies are pursued. At the other extreme there are good examples of community-based protected areas, where the management lies in the hands of the local inhabitants. In Namibia, for example, Community Based Natural Resource Management has been developed to include the creation and legal recognition of community conservancies and forests where wildlife and other natural resources are nurtured and managed by local communities in ways that bring benefits to them.50 The extent of local involvement in the management of protected areas, as in their designation, varies from cursory consultation through meaningful participation to substantial local decision-making power.

37.5.3 Controls on Activity Even where a protected area is wholly in the hands of a body likely to work towards its conservation and enhancement, regulatory measures are still appropriate, if only to provide controls on visitors and activities which may harm a site but are beyond the direct practical control of its owner. Such measures can be imposed by legislation of general application, imposing broad prohibitions on acts which damage the sites, or can take the form of more specific byelaws or ordinances that are designed for and apply separately to each individual site.

47 C. Reid, ‘Employing Property Rights for Nature Conservation’ in C. Godt (ed.), Regulatory Property Rights: The Transforming Notion of Property in Transnational Business Regulation (Leiden: Brill Nijhoff, 2016). 48 Reid and Nsoh, The Privatisation of Biodiversity?, at chapter 5. 49 M. Colchester, Salvaging Nature—Indigenous Peoples, Protected Areas and Biodiversity Conservation (Geneva: UNRISD Discussion Paper 55, 1994), 13–17, available at: http://www.unrisd. org/80256B3C005BCCF9/httpNetITFramePDF?ReadForm&parentunid=AD6F6265E1BB865E80256B6 7005B6658&parentdoctype=paper&netitpath=80256B3C005BCCF9/(httpAuxPages)/AD6F6265E1BB8 65E80256B67005B6658/$file/DP55E.pdf. 50 NACSO, The State of Community Conservation in Namibia—A Review of Communal Conservancies, Community Forests and Other CBNRM Initiatives (2015 Annual Report) (Windhoek: NACSO, 2015), available at: http://www.nacso.org.na/sites/default/files/The%20State%20of%20Community%20Conservation%20 book%202015.pdf.

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protection of sites 845 After all, the measures needed to protect an area designated because of its geological features may be very different from those needed to conserve a site’s rich biodiversity. The scope of the controls is a preliminary question to be addressed, in terms of who is affected and geographically. Controls can be aimed exclusively at the owners and occupiers of the site, which will provide a clear focus for the law and a distinct group who can be notified of it provisions as well as covering the most important impacts related to how the land is managed and used. There may, however, be a need to go further and control the impacts caused by visitors (authorized or not) who may cause disturbance and damage,51 giving rise to questions about how they are to know that they are entering a protected area and the specific rules that govern their conduct there. A further question is whether controls should be limited to activities within the protected area, or apply to all those that might affect it, even though they are taking place outside its boundaries.52 Again this raises questions as to awareness and enforcement, especially when pollution or abstraction of water resources can have an effect many, many miles away. The form of any controls then has to be considered.53 The most obvious measure is one that prohibits harmful activity, such as hunting or felling trees, or even access to areas being conserved as wilderness, but the prohibited conduct must be clearly defined. Absolute prohibitions are, however, a rather blunt instrument for regulating the many activities which can take place within a protected area and a more appropriate response may be to render activities subject to a permitting requirement. This allows the individual circumstances of a particular proposal to be considered; in a woodland reserve, some felling of trees may be acceptable, indeed desirable for the health of the woodland as a whole, whereas other felling would be clearly harmful. Systems based on individual grants of permission may also enable proposals to be revised into an acceptable shape, either through the existence of a power to add conditions to the permission given, or simply because discussion or practice makes it clear that only proposals which meet certain standards will be approved. A permitting rather than prohibition approach is likely to be particularly appropriate where the protected area is not completely set aside for nature but is still lived in and used by the local population and held by land owners whose rights to deal with their land are restricted by the regulatory controls. Given the administrative burden of considering individual applications, a more efficient scheme might still rest on the basis that certain activities are unlawful unless permission is obtained, but operate by giving automatic permission to activities that comply with certain general rules or conditions. In this way the default position remains that the potentially harmful activity is not allowed but where the scale or nature of the proposal is such that it will not cause any (or appreciable, or sufficiently serious) harm it can proceed without an individual application for and express grant of permission. Care must be taken in setting such thresholds or conditions, especially because of the danger of cumulative impacts being overlooked. 51 The law in England on Sites of Special Scientific Interest originally controlled only owners and occupiers but further measures were added to penalize anyone who intentionally or recklessly damages the features of a site; Wildlife and Countryside Act 1981, s. 28 (as originally enacted) and s. 28P(6)–(7) (added by Countryside and Rights of Way Act 2000). 52 Key parts of the EU Habitats Directive seek to control plans and projects ‘likely to have a significant effect’ on protected sites, not just those taking place within their boundaries; Art. 6(3) Habitats Directive. 53 See Lausche, Guidelines for Protected Areas Legislation, at 177–82 for discussion and common examples of the controls mentioned in these paragraphs.

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846 colin t. reid The design of a permitting scheme will also have to be considered. The choice of ermitting authority is significant, especially whether it is an expert body that will decide p purely on scientific grounds, or one that represents and acts on a wider range of interests.54 Opportunities for public participation, allowing different perspectives to be fed into the process, will vary, as will appeal mechanisms, which take on additional significance where any restrictions can be seen as amounting to an interference with the legal rights of land owners. In the United Kingdom, when the powers of the authorities in relation to Sites of Special Scientific Interest extended only so far as to delay damaging activities from taking place, no appeal against their decisions was thought necessary, but when their powers increased to enable them to prevent operations, appeal mechanisms were introduced,55 not least to ensure that such decisions which can interfere with the land owners’ ‘peaceful enjoyment of [their] possessions’ were ultimately taken by a ‘fair and impartial tribunal’ as required by the European Convention on Human Rights (ECHR).56

37.5.4 Positive Conservation Except in large areas of wilderness, the negative controls imposed by prohibitions or permitting requirements are unlikely by themselves to ensure the long-term health of protected areas. More positive steps must be taken to ensure that habitat is nurtured. This can be achieved by ordering owners and occupiers to undertake certain activities, such as maintaining drainage works or controlling invasive species, but such steps can produce an antagonistic relationship and at best sullen compliance with the letter of the law. A better approach is likely to be through encouraging active cooperation with conservation measures and progress may be possible through the use of financial measures. Payment for Ecosystem Services is now a burgeoning area of interest within conservation, encompassing both well-established elements of financial support for rural ways of life which may not be financially viable on their own to innovative ways of valuing and paying for the many benefits obtained from the natural world but not accounted for in conventional commercial terms.57 Economic instruments can also be used to discourage actions that might go against conservation objectives, such as by or providing financial support for those who forego maximum profits by maintaining environmentally friendly farming methods as opposed to converting land to more ecologically harmful intensive production.58 Financial recompense 54 e.g. in Scotland, planning permission for buildings within a National Park is determined by the National Park Authority which has some appointed members, some from the local authorities for the area and some directly elected (National Parks (Scotland) Act 2000, Sch. 1), whereas permission to carry out restricted activities within a Site of Special Scientific Interest is determined by Scottish Natural Heritage, the statutory nature conservation body wholly appointed by Ministers (Natural Heritage (Scotland) Act 1991, Sch. 1). 55 C. Reid, Nature Conservation Law (Edinburgh: W. Green, 3rd edn. 2009), 221, 229. 56 Article 1 of Protocol 1 and Art. 6 European Convention on Human Rights. 57 Reid and Nsoh, The Privatisation of Biodiversity?, at chapter 3. 58 This was the specific focus of early measures under the EU’s agri-environment schemes (e.g. 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), whereas now environmental concerns are more fully integrated into the Common Agricultural Policy (see https://ec.europa.eu/agriculture/envir/cap_en).

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protection of sites 847 can also be a recognition of the burden borne by local residents for the sake of conservation in the wider interest, such as compensating land owners for livestock losses resulting from the encouragement of endangered species.59 More positive agreements can be made to manage the land in a way that helps (or at least does not hinder) the conservation goals of the care for the land. Where land owners enter such agreements there is likely to be payment from a body supporting conservation (a state body or NGO), and as well as the payment, an attraction of this approach, as opposed to more formal regulatory intervention, can be that the option is left open for reverting to other land uses once the agreement reaches its term. On the other hand, a key issue will be securing that any agreement is binding not just on the original party but on successors in title when there is a change in the owners or occupiers. This can be achieved through express statutory provision, or by use of property law mechanisms, adapted as required to serve the interests of conservation rather than of other private parties. A leading example is the development of conservation easements in the United States, whereby the owners of land are bound in perpetuity60 to comply with the agreed restrictions on how the land can be used.61

37.6 Enforcement Whatever measures are put in place to care for protected areas, they will not be effective unless they can be enforced. Enforcement will depend largely on practical matters, such as the resources, integrity, and expertise of those charged with this task, the latter being a special concern in this area where identifying what species are being affected or the harm that can result from apparently innocent activities is one of the challenges in ensuring that the law is being observed. The steps taken must also deal with the many different motivations behind, and scales of, infringement, from organized and violent international poaching gangs to those simply continuing existing subsistence practices which can no longer be borne by the environment.62 The enforcement mechanisms must obviously match the regulatory tools being used—prosecutions where the criminal law is used to prohibit activities, financial sanctions where economic instruments are used. In all cases, though, a preliminary requirement is to be able to establish that the rules have been breached and this will require the enforcing authority to have the power to gather evidence. Powers of entry, search, and seizure may be needed to enable suspected incidents to be investigated and a 59 L. Boitani, P. Ciucci, and E. Raganella-Pelliccioni, ‘Ex-post Compensation Payments for Wolf Predation on Livestock in Italy: A Tool for Conservation?’ (2010) 37 Wildlife Research 722; agricultural losses can arise not just from predation by carnivores, but also through grazing impact, e.g. by overwintering geese, as recognized in Scotland by schemes to compensate farmers who suffer in this way. 60 The requirement for perpetuity is a quirk deriving from the desire to attract charitable status and hence tax breaks and many different provisions on duration and other aspects of the legal relationship are possible; Reid and Nsoh, The Privatisation of Biodiversity?, at chapter 5, esp. 189–91. 61 L. A. Ristino and J. E. Jay (eds.), A Changing Landscape: The Conservation Easement Reader (Washington D.C.: Environmental Law Institute, 2016). 62 L. Elliott and W. H. Schaedla (eds.), Handbook of Transnational Environmental Crime (Cheltenham: Edward Elgar, 2016).

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848 colin t. reid case to be built fit to be presented within formal enforcement structures. Such powers are also useful at an earlier stage to ascertain whether features justifying designation are present on the land. A further consideration is that imprisonment, fines, or financial penalties of other sorts do nothing to repair any damage actually done to the protected area. It is beneficial, therefore, if damage cannot be avoided, for the sanctions to include measures to ensure that any ecological damage is restored (where possible) or compensatory action taken. Thus under the EU’s Environmental Liability Directive the obligations on those carrying out (potentially) harmful operations are first to avoid causing biodiversity damage but if this proves unsuccessful to undertake ‘primary remediation’, restoring the damaged natural resources, or where this is not possible ‘complementary remediation’, providing an equivalent level of natural resources or services, and also ‘compensatory remediation’, providing interim biodiversity benefits whilst longer-term primary or complementary remediation is taking place.63 A common feature is to provide that if the wrongdoers do not or cannot carry out the restoration themselves, a public body can do so and recover the costs from the defaulter.

37.7 Marine Protected Areas The modern concept of protected areas has been applied in the marine environment much more recently than on land, but there are now international commitments to ensure that a significant proportion of the world’s seas is protected.64 The UN Convention on the Law of the Sea (UNCLOS) declares simply that: ‘States have the obligation to protect and preserve the marine environment’.65 Marine areas do, however, have a number of special characteristics which mean that there are distinct challenges in ensuring effective conservation.66 The state of, and the damage being done to, biodiversity at sea are much less visible, and much less fully understood, than on land. The three-dimensional nature of the environment adds complexity, and while some species are sedentary, many others roam freely over very large areas or migrate long distances. Such considerations lead to marine protected areas tending to be much larger than those on land, extending to many thousands of square kilometres,67 with potential for the same range of classifications and sliding scale of exclusive and concurrent uses as on land.68 Enforcement of any laws at sea is difficult and further complicated by the rules governing jurisdiction, over areas of the sea and sea-bed as well as over ships. The absence of an ‘owner’ entitled to exercise detailed control over how any area 63 Articles 5–6, Annex II Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage. 64 Such as Sustainable Development Goal 14.5, as set out in the Resolution adopted by the General Assembly on 25 September 2015 (70/1—Transforming our world: the 2030 Agenda for Sustainable Development) and Aichi Target 11, as agreed under the Convention on Biological Diversity COP 10 Decision X/2: Strategic Plan for Biodiversity 2011–2020 (2010). 65 Article 193 UN Convention on the Law of the Sea (1982); D. Diz, ‘Marine Biodiversity: Unravelling the Intricacies of Global Frameworks and Applicable Concepts’ in E. Morgera and J. Razzaque (eds), Biodiversity and Nature Protection Law (Cheltenham: Edward Elgar, 2017). 66 Lausche, Guidelines for Protected Areas Legislation, at 209–22. 67 Ibid., at 212. 68 J. Day, N. Dudley, M. Hockings, G. Holmes, D. Laffoley, S. Stolton, and S. Wells, Guidelines for Applying the IUCN Protected Area Management Categories to Marine Protected Areas (Gland: IUCN, 2012).

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protection of sites 849 is used is a further issue, as is the extent to which national and international law recognize and protect ‘public’ rights of navigation and fishing. The marking and notification of protected areas at sea can be difficult and at the coast the coordination between the terrestrial legal regime and that for the sea can be awkward. Further difficulties are caused when threats to a protected area arise because of pollution or other risks originating on the land or seas of one state and spreading to waters controlled by another. To the extent that states do exercise jurisdiction, they are now beginning to declare marine protected areas of various sorts, either under specific legislation or through the application of measures which apply equally to terrestrial sites.69 Within territorial waters, where states have most control, significant regulation of access and use can be imposed, for example banning fishing or types of craft likely to disturb wildlife or imposing strict rules for boats involved in whale-watching or other tourist activities. Beyond this zone, the powers granted to states within the Exclusive Economic Zone in relation to fishing and the exploitation of other resources (and over the sea-bed in the extended continental shelf) provide the basis for restrictions on activities relating to such exploitation, enabling some control over the most damaging forms of intervention in those areas. There remains an obvious problem, though, of areas of the high seas beyond all national jurisdiction where there is no state or authority with the capacity to impose restrictions of any sort,70 except to the extent that the parties to an international agreement declaring a reserve are willing to impose controls in the exercise of their jurisdiction over ships registered, or other activities legally based, in their territory. Nevertheless, action is being taken to establish protected areas in these areas beyond national jurisdiction. Some of these have a regional focus and are based on specific parties coming together, for example the Pelagos Sanctuary for Mediterranean Marine Mammals in the sea north of Sardinia, which includes waters beyond the jurisdictional control of the parties establishing it: France, Italy, and Monaco.71 Others arise from the work of wider treaty and institutional frameworks, such as those declared by OSPAR72 and under the Antarctic Treaty regime, notably the Ross Sea region Marine Protected Area, extending to 1.55 million square kilometres and the largest protected area in the world.73 International treaties governing specific activities within the high seas which have a negative impact on conservation, such as fishing, have potential to provide a further degree of protection, but are vulnerable to the actions of non-parties and the difficulty of enforcing the law hundreds of miles from shore.

69 It was not initially accepted that the EU Birds and Habitats Directives applied offshore, but this was made clear by the English and EU courts; R v Secretary of State for Trade and Industry, ex parte Greenpeace Ltd. [2000] 2 CMLR 94, Case C-6/04 Commission v United Kingdom [2005] ECR I-9017. 70 The exploitation of minerals in the deep sea-bed is subject to international regulation under the authority of the International Seabed Authority; United Nations Convention on the Law of the Sea (1982), Part XI and Agreement relating to the implementation of Part XI of the of 10 December 1982 (1994). 71 Joint Declaration Concerning the Institution of a Mediterranean Sanctuary for Marine Mammals, Brussels, 22 March 1993. 72 e.g. OSPAR Decision 2012/1 on the establishment of the Charlie-Gibbs North High Seas Marine Protected Area; see http://www.charlie-gibbs.org/charlie/. 73 Convention on the Conservation of Antarctic Living Marine Resources (CCALMR) Conservation Measure 91–05 (2016): Ross Sea region marine protected area, https://www.ccamlr.org/en/measure91-05-2016.

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37.8 Challenges for the Future Protected areas are a mainstay of biodiversity conservation and will continue to be so. Yet there are two challenges which may call for some rethinking of the role of protected areas and their place in the conservation enterprise. The first of these arises from our improved understanding of what is needed for biodiversity to thrive, as noted at the start of this chapter. Conservation today is increasingly adopting an ecosystem approach rather than focusing narrowly on specific species or habitats. The Convention on Biological Diversity defines an ‘ecosystem’ as ‘a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional units’74 and the ecosystem approach calls for ‘adaptive management to deal with the complex and dynamic nature of ecosystems’,75 noting that this requires attention to ecosystems at all scales, ‘a grain of soil, a pond, a forest, a biome or the entire biosphere’.76 This approach involves ‘a strategy for the integrated management of land, water and living resources that promotes conservation and sustainable use in an equitable way’, with a priority being the ‘conservation of ecosystem structure and functioning, in order to maintain ecosystem services’.77 The focus is thus shifting from a concentration on individual sites and species to a concern for the health of wider ecosystems, requiring attention to the more diffuse impacts of human activity on the wider countryside rather than concentrating on the establishment and preservation of discrete citadels for designated forms of wildlife. Looking after protected areas is beneficial, but not in itself enough to guarantee the enduring health of biodiversity, especially if they are isolated in an increasingly unsupportive wider landscape. As much attention must be paid to the state of nature outside the boundaries of protected areas as within. The second major challenge is posed by climate change. The environment around us has always been dynamic and the flora and fauna of the world have adapted as their surroundings have changed. We are, though, entering a period of increasingly rapid and marked change at the same time as human pressures have reduced the scope for the natural world to adapt. Sea level rises are not a problem for the species that live in coastal salt-marshes if their habitat can move with the changing tidelines; they are a problem if that move is blocked by a sea-wall protecting houses or factories so that as the sea level rises the marsh has nowhere to go and simply gets washed away, squeezed between the rising ocean and the solid human constructions. Sites that today offer ideal habitat for particular species may no longer provide the conditions they need to thrive, or even survive, as temperature changes and alterations in rainfall patterns transform the physical state of the site. These issues affect marine areas as much as those on land, with species distributions already being affected by changing temperatures. Looking after the current suite of protected sites may therefore not actually do much for biodiversity in the future. Legal measures must be put in place to protect not just the sites that biodiversity needs today, but those it will need in the future (and the means to access the new sites). There must also be the potential for species to move 74 Article 2 Convention on Biological Diversity (1992). 75 Fifth Ordinary Meeting of the Conference of the Parties to the Convention on Biological Diversity, 15–26 May 2000—Nairobi, Kenya (CBD-COP 5), Decision V/6 para 3. 76 Ibid. 77 Ibid., para 5, Principle 5.

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protection of sites 851 with safety to higher land or higher latitudes to keep within the temperature range they need, or to find and settle in areas where the water resources are suitable. Our care for protected areas must be dynamic, not static, and must allow for future as well as current needs.78

37.9 Select Bibliography Day, J., N. Dudley, M. Hockings, G. Holmes, D. Laffoley, S. Stolton, and S. Wells, Guidelines for Applying the IUCN Protected Area Management Categories to Marine Protected Areas (Gland: IUCN, 2012). Dudley, N. (ed.), Guidelines to Applying Protected Area Management Categories (Gland: IUCN, 2008). European Environment Agency, Protected Areas in Europe—An Overview (EEA Report No. 5/2012) (Copenhagen: EEA, 2012). Gillespie, A., Protected Areas and International Environmental Law (Leiden: Martinus Nijhoff, 2007). Hamzah, A., D. J. Ong, and D. Pampanga, Asian Philosophy of Protected Areas (IUCN Asia Regional Office Bangkok, 2013). Lausche, B., Guidelines for Protected Areas Legislation (Gland: IUCN, 2011). Morgera, E. and J. Razzaque (eds.), Biodiversity and Nature Protection Law (Cheltenham: Edward Elgar, 2017). Stolton, S. and N. Dudley (eds.), Arguments for Protected Areas: Multiple Benefits for Conservation and Use (London: Earthscan (Routledge), 2010).

78 A. Trouwborst, ‘International Nature Conservation Law and the Adaptation of Biodiversity to Climate Change: A Mismatch?’ (2009) 21 Journal of Environmental Law 419.

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chapter 38

Com m a n d a n d Con trol Sta n da r ds a n d Cross-j u r isdictiona l H a r mon iz ation Bettina Lange

38.1 Overview

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38.2 Strengths and Weaknesses of ‘Command and Control’ Environmental Standards

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38.2.1 A Working Definition of ‘Command and Control’ Standards 38.2.2 The Enduring Significance of ‘Command and Control’ Standards 38.2.3 ‘Command and Control’ Standards as Linked to Self-Regulation and Economic Incentives 38.2.4 The Implementation Deficit of ‘Command and Control’ Standards 38.2.5 The Conceptualization Gap of ‘Command and Control’ Standards

38.3 Developing Integrated and Harmonized Standards through Applied Science Models

38.3.1 Science as Trans-jurisdictional? 38.3.2 The DPSIR Model 38.3.2.1 Introduction 38.3.2.2 Key Features of DPSIR 38.3.3 DPSIR as a Standard Harmonizer? 38.3.4 Limitations of DPSIR in Providing an Integrated View of Environmental Risks

854 855 857 860 862

864 864 866 866 867 868 871

38.4 Concluding Remarks

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38.5 Acknowledgements

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38.6 Select Bibliography

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command and control standards 853

38.1 Overview This chapter offers a discussion of the strengths and weaknesses of ‘command and control’ environmental standards. It suggests that academic literature has been particularly concerned with discussing ‘command and control’ standards in the context of broad, at times theoretically informed debates, about the relevant role of states and markets in environmental regulation. More pragmatically empirically informed literature has documented deficits in the implementation of ‘command and control’ standards and has proposed options for resolving these. Differently from this, this chapter suggests that limited conceptualizations of how the natural environment works, and how it is influenced by human actions, is a key shortcoming of environmental ‘command and control’ standards. This ‘conceptualization gap’ may be more significant for restricting the effectiveness of ‘command and control’ standards than their limited economic incentives or implementation deficits. The chapter then explores how applied science models that analyse environmental risks can help to close this ‘conceptualization gap’. Discussing the role of science in the setting and implementation of ‘command and control’ standards matters especially in the context of comparative environmental law.1 Drawing on the abstract, conceptual, and thus potentially trans-jurisdictional ‘language of science’ may make these standards more comparable, and potentially more alike across different jurisdictions. Hence, the chapter probes the potential of the ‘language of science’, as perhaps greater than that of the indeterminate ‘language of law’, for promoting the harmonization of ‘command and control’ standards across different jurisdictions. This matters also in light of a retreat from supranational law as a force for harmonizing standards, as illustrated by the United Kingdom’s exit from the European Union (EU), and continuing concerns of the remaining EU Member States to retain some control over their national environmental legal standards,2 also with reference to the legal principle of subsidiarity.3 In addition, the Paris Climate Change Agreement makes only limited use of legally binding obligations, and its reach has been undermined by the withdrawal of the United States. Also against the backdrop of this political landscape the chapter argues that the ‘language of science’—more specifically the applied science model, ‘Drivers’, ‘Pressures’, ‘States’, ‘Impacts’, and ‘Responses’ (DPSIR)—has contributed to harmonizing approaches for understanding environmental risks and their potential legal regulation across various jurisdictions. But the limited capacity of the model to capture the complexity of relationships between human

1 Comparative law has been defined as a method for understanding ‘the similarities and differences between the laws of two or more countries, or between two or more legal systems’, rather than as an account of legal provisions, or as a distinct system of the legal rules of various countries (S. Zellmer, Comparative Environmental and Natural Resources Law (Durham N.C.: Carolina Academic Press, 2013), xii). 2 Such as the recent, though unsuccessful, challenge of Poland before the Court of Justice of the European Union (CJEU), seeking annulment of the Decision (EU) 2015/1814 of the European Parliament and the Council of the European Union establishing a market stability reserve for the EU emissions trading regime (Case C-5/16 Republic of Poland v European Parliament and Council of the European Union ECLI:EU:C:2018:483.). 3 Article 5 Consolidated Version of the Treaty on European Union [2008] OJ C 115/13.

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854 bettina lange and natural dimensions of environmental risks, and its insufficient consideration of the various temporal and spatial scales along which environmental risks evolve, restrict its role in rendering ‘command and control’ standards more ‘integrated’, as well as comparable and thus potentially more alike across different jurisdictions.

38.2 Strengths and Weaknesses of ‘Command and Control’ Environmental Standards 38.2.1 A Working Definition of ‘Command and Control’ Standards ‘Command and control’ environmental legal standards are state law binding rules4 imposed upon organizations or individuals with the aim to stabilize or reduce the emission of pollutants into the natural environment. These standards, sometimes referred to as ‘direct regulation’,5 are central to public, usually administrative environmental law.6 Their nature and content reflects the legal structure7 and regulatory philosophies, such as ‘better’8 or ‘smarter’ regulation,9 of specific national jurisdictions. ‘Command and control’ standards are often nationally centralized, industry-uniform regulations,10 though they may be adapted to 4 R. I. Steinzor, ‘Reinventing Environmental Regulation: The Dangerous Journey from Command to Self-Control’ (1998) 22 Harvard Environmental Law Review 104. 5 W. Harrington and R. D. Morgenstern, ‘Economic Incentives versus Command and Control’ (2004) Resources 13. 6 In some jurisdictions environmental criminal law is a distinct type of environmental standard, though it may be related to ‘command and control’ standards. In Germany, for instance, some environmental offences criminalize a breach of administrative law duties (M. Kloepfer, Umweltrecht (CH Beck, 4th edn. 2016), 670). Some authors perceive also international law as a source of ‘command and control’ environmental standards (see e.g. T. Yang and R. V. Percival, ‘The Emergence of Global Environmental Law’ (2009) 36 Ecology Law Quarterly 623). It should also be borne in mind that private law actions, such as citizens’ suits can play an important role in the actual enforcement of public law ‘command and control’ environmental standards (A. D. Tarlock and P. Tarak, ‘An Overview of Comparative Environmental Law’ (1983–84) 13 Denver Journal of International Law & Policy 94). 7 For instance, ‘command and control’ environmental legal standards will have to conform to constitutional legal norms e.g. in relation to the protection of private property and human health. About 130 countries have specific constitutional provisions relating to the protection of the environment (Yang and Percival, The Emergence of Global Environmental Law’, at 644). 8 See e.g. the ‘Better Regulation in Europe’ project of the OECD, available at: http://www.oecd.org/ gov/regulatory-policy/betterregulationineuropeeu15countryfinder.htm. 9 The EU, for instance, pursues a ‘smart regulation’ philosophy that advocates the mix of different regulatory tools and a reduction of regulatory burdens on business, with smart regulation being a shared responsibility between the different institutions involved in EU policy making (http://europa.eu/rapid/ press-release_MEMO-13-786_en.htm). 10 B. A. Ackerman and R. B. Stewart, ‘Reforming Environmental Law’ (1985) 37(5) Stanford Law Review 1341.

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command and control standards 855 particular industry sectors in order to enhance their economic efficiency, particularly in the case of technology standards.11 ‘Command and control’ standards do not just reflect a coercive, but also expressive dimension of law.12 They can constitute a moral universe by signalling what is lawful in contrast to unlawful behaviour in relation to the natural environment. This, in accordance with the legal principle of prevention,13 may reduce by itself environmentally damaging behaviour.14 Hence, in order to understand how ‘command and control’ standards lead to behavioural change in practice, it is necessary to open up the ‘black box’ of the formal legal standard. For instance, organizational theory, capturing relationships between environmental regulators and regulated organizations, suggests that ‘commanding and controlling’ is buttressed by distinct emotions, including fear, which also affirm macro social and economic structures.15 The management of such emotions is one aspect of deflecting or increasing the influence of ‘command and control’ environmental standards.16

38.2.2 The Enduring Significance of ‘Command and Control’ Standards While being a traditional regulatory tool, ‘command and control’ standards are likely also to play a significant role in environmental regulation in the future.17 They have been used since antiquity, for instance for regulating sewage collection and building activity in order to limit air pollution in antique Rome. They have also been part of water resource management in ancient Mesopotamia.18 During medieval times they featured in Germany in the running of water mills and the disposal of waste.19 During the seventeenth century ‘command and control’ standards were used in England for marine conservation.20 Hence, ‘command and control’ environmental standards did not develop simply as a response to the growth of 11 D. T. Hornstein, ‘Reclaiming Environmental Law: A Normative Critique of Comparative Risk Analysis’ (1992) 92 Columbia Law Review 630. Some authors differentiate between ‘health-based’ and ‘technology-based’ ‘command and control’ standards. The former are standards which are determined on the basis of scientific knowledge about the impacts of specific pollutants on human health, whereas the latter draw on technology to reduce pollutants as far as technically and economically feasible (Steinzor, ‘Reinventing Environmental Regulation’, at 114). 12 Bronwen Morgan and Karen Yeung, An Introduction to Law and Regulation: Text and Materials (Cambridge: Cambridge University Press, 2007), 6. 13 Codified e.g. in Art. 191 (2) Consolidated Version of the Treaty on the Functioning of the European Union [2012] OJ C 326/47, 132. 14 R. Baldwin, M. Cave, and M. Lodge, Understanding Regulation, Theory, Strategy, and Practice (Oxford: Oxford University Press, 2nd edn. 2012), 244. 15 S. Fineman and A. Sturdy, ‘The Emotions of Control: A Qualitative Exploration of Environmental Regulation’ (1999) 52(5) Human Relations 631, at 635. 16 Ibid., at 637, 642–3. 17 K. M. Murchison, ‘Environmental Law in Australia and the United States: A Comparative Overview’ (1995) 22(3) Boston College Environmental Affairs Law Review 538, at 561. 18 Kloepfer, Umweltrecht, at 77. 19 Ibid., at 79. 20 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 (W. Evans, A Collection of Statutes Connected with the General Administration of the Law, Vol. 10 (London: Forgotten Books, 2018).

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856 bettina lange olluting technology during the industrialization. In the 1960s and 1970s21 ‘command and p control’ standards were crucial to the expansion of environmental regulation, especially in relation to water and air pollution22 in various jurisdictions, such as the United States,23 the United Kingdom, France, and the then West Germany, but also in socialist legal systems, such as former East-Germany,24 pre-1989 Poland,25 and the then USSR.26 Though it should be noted that ‘command and control’ standards expanded while there were also options for potential alternatives, such as economic incentive standards. Legal powers to develop economic incentives, such as environmental taxation, existed since the 1970s, for instance, for the Australian Commonwealth.27 In contemporary regimes of environmental regulation ‘command and control’ standards are still significant28 or even the core29 of public environmental law, with environmental criminal and private law perceived as flanking measures.30 ‘Command and control’ standards are also used for the regulation of new environmental risks. For instance, operators of exploratory or long-term shale gas extraction facilities have to comply with limits on groundwater pollutants which are imposed in the United Kingdom,31 Germany, and Poland through licences.32 Some countries, such as France, and some states in Germany, such as North Rhine Westphalia,33 as well as some regions in Spain34 have used bans—one of the 21 Zellmer, Comparative Environmental and Natural Resources Law, at xi; M. Clarke, Regulation: The Social Control of Business between Law and Politics (Basingstoke: Macmillan Press Ltd, 2000), 114. Through reauthorizations of major pieces of regulations in the United States, including the 1990s amendments to the Clean Air Act, ‘command and control’ regulations continued to be significant also in the 1980s and 1990s in the United States (Steinzor, ‘Reinventing Environmental Regulation’, at 107). Moreover, ‘command and control’ standards expanded in the 1990s in countries in the global South. Thailand, for instance, introduced air quality standards in 1992 (Yang and Percival, The Emergence of Global Environmental Law’, at 630). 22 Ackerman and Stewart, ‘Reforming Environmental Law’, at 1335. 23 Ibid.; Harrington and Morgenstern, ‘Economic Incentives versus Command and Control’, at 13. 24 H. Lüers, ‘Umweltschutzgesetzgebung in beiden Teilen Deutschlands’ (1972) 13 Jahrbuch für Ostrecht 44. 25 D. H. Cole and P. Z. Grossman, ‘When is Command-And-Control Efficient? Institutions, Technology, and the Comparative Efficiency of Alternative Regulatory Regimes for Environmental Protection’ (1999) Wisconsin Law Review 908; Tarlock and Tarak, ‘An Overview of Comparative Environmental Law’, at 86. 26 Tarlock and Tarak, ‘An Overview of Comparative Environmental Law’, at 97. 27 Murchison, ‘Environmental Law in Australia and the United States’, at 516. 28 Cole and Grossman, ‘When is Command-And-Control Efficient?’, at 934. 29 D. Sinclair, ‘Self-Regulation Versus Command and Control? Beyond False Dichotomies’ (1997) 19(4) Law and Policy 529. 30 See the contribution of O. Dilling and W. Köck in this volume. 31 The UK Secretary of State heading the Department for Business, Energy and Industrial Strategy issues Petroleum Exploration & Development Licences under the Petroleum Act 1998 (P. Bowden, ‘A European Shale Gas Boom?’ in Global Legal Group in association with Freshfields Bruckhaus Deringer, Environment and Climate Change Law 2014 (2014), 2, 3. 32 EU-wide regulation of shale gas extraction seems currently unlikely. EU Recommendation (2014/70/EC) OJ L 39/72 sets out key principles in relation to shale gas extraction but does not provide for its own specific detailed regulation. 33 Bowden, ‘A European Shale Gas Boom?’, at 41. 34 C. del Pozo and M. Soto, ‘Spain’ in: Global Legal Group in association with Freshfields Bruckhaus Deringer, The International Comparative Legal Guide to Environment & Climate Change Law 2016 (13th edn. 2016), 217.

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command and control standards 857 strongest forms of ‘command and control’—in response to fracking.35 Moreover, demand especially for harmonized ‘command and control’ standards continues due to the globalization of trade. Harmonized standards level economic playing-fields and thus reduce transaction costs which otherwise arise from business having to comply with different standards in various jurisdictions.36 Moreover, ‘command and control’ standards are of enduring significance, but not necessarily as a separate, distinct technique of environmental regulation, but increasingly as linked to other types of environmental standards.

38.2.3 ‘Command and Control’ Standards as Linked to Self-Regulation and Economic Incentives ‘Command and control’ standards have been criticized for inducing a reactive attitude, that is geared towards mere compliance with, for example, permit conditions, which can be legally valid for a number of years.37 ‘Command and control’ standards are thus perceived as stifling—both in regulatory agencies and regulated organizations—a pro-active culture of innovation that continually searches for new and creative ways of reducing pollution beyond permit standards.38 This criticism is, however, questionable for two reasons. First, innovation in pollution control in regulated firms occurs also in response to ‘command and control’ standards, though mainly for the purpose of reducing the costs of pollution control. Economic incentives, in contrast, have led to new pollution controls that reduce both costs and emissions, with emission reductions occurring in particular in newer plants with longer life spans.39 Second, ‘command and control’ standards are often linked to self-regulatory and economic incentive standards, which can drive innovation in pollution control.40 For instance, in the case of state ‘enforced self-regulation’41 regulatory agencies may turn the innovative rules of private standard setters, such as trade association rules or international standardization initiatives,42

35 Bowden, ‘A European Shale Gas Boom?’, at 3. 36 P. W. Schroth, ‘Comparative Environmental Law: A Progress Report’ (1976) 1 Harvard Environmental Law Review 603. 37 In England and Wales the regulator is under a duty to ‘periodically review’ environmental permits (reg. 34 (1) Environmental Permitting Regulations (England and Wales) 2016 SI 2016/1154. Licences to abstract water from the natural environment for some sectors of industry, such as electricity generators, can be valid for up to twenty years in order to provide security of cooling water supply for essential utility services (personal communication). 38 Sinclair, ‘Self-Regulation Versus Command and Control?’, at 537; C. S. Holling and G. K. Meffe, ‘Command and Control and the Pathology of Natural Resource Management’ (1996) 10(2) Conservation Biology 331; J. Braithwaite, ‘Responsive Business Regulatory Institutions’ in C. A. J. Coady and C. J. G. Sampford (eds.), Business, Ethics and the Law (Leichhardt, NSW: Federation Press, 1993). 39 Harrington and Morgenstern, ‘Economic Incentives versus Command and Control’, at 16. 40 Ibid., at 13. 41 I. Ayres and J. Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (Oxford: Oxford University Press, 1992). 42 Such as ISO 14001 (at: https://www.iso.org/iso-14001-environmental-management.html). A. Prakash and M. Potoski, ‘Collective Action through Voluntary Environmental Programs: A Club Theory Perspective’ (2007) 35(4) The Policy Studies Journal 774.

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858 bettina lange into another source of ‘command and control’ standards.43 Moreover, regulators have used self-regulation in order to achieve compliance with ‘command and control’ standards. For instance, large industrial companies have been given dispensations from compliance with conditions in ‘command and control’ permits if they could achieve at least comparable emission reductions by voluntary means, in the context of US EPA’s Project XL programme44 and in the Australian state of New South Wales.45 Hence, in contemporary regimes of environmental regulation the coercive effect of ‘command and control’ standards is often intentionally attenuated because change of behaviour is sought through a degree of collaboration with the regulated.46 Consequently in a range of jurisdictions47 environmental ‘command and control’ standards do not prohibit conduct in very specific ways. Instead they often entail both emission limit and environmental quality standards.48 While emission limit standards impose specific numerical limits on pollutants, that for example a factory can discharge into air or water, environmental quality standards merely specify a concentration of pollutants in for example air or water. Where ‘command and control’ standards rely on environmental quality standards dischargers and regulators have significant discretion in how to achieve these concentrations of pollutants in the receiving environmental medium. Moreover, the coercive nature of ‘command and control’ standards is attenuated because some jurisdictions now enforce them also through cooperative sanctions. For instance, in England and Wales, the United States,49 and the state of New South Wales in Australia50 civil sanctions are available for breach of ‘command and control’ standards. In England and 43 On this see also Sinclair, ‘Self-Regulation Versus Command and Control?’, at 541. 44 Established in 1995. C. Coglianese and J. Nash, ‘Government Clubs: Theory and Evidence from Voluntary Environmental Programs’ (June 2008) Corporate Social Responsibility Initiative Working Paper, No. 50, Cambridge M.A., John F. Kennedy School of Government, Harvard University, available at: https://www.hks.harvard.edu/m-rcbg/CSRI/publications/workingpaper_50_coglianese_nash.pdf; Steinzor, ‘Reinventing Environmental Regulation’, at 111. 45 Sinclair, ‘Self-Regulation Versus Command and Control?’, at 535. 46 The working definition adopted in this chapter puts less emphasis on coercion than standard definitions that consider ‘command and control’ to be legal rules imposed in order to ‘prohibit specified conduct’ ‘underpinned by coercive sanctions (either civil or criminal in nature) if the prohibition is violated’ (Morgan and Yeung, An Introduction to Law and Regulation, at 80; Baldwin, Cave, and Lodge, Under standing Regulation, Theory, Strategy, and Practice, at 106). 47 Such as in India: V. K. Agarwal, ‘Environmental Laws in India: Challenges for Enforcement’ (2005) 15 Bulletin of the National Institute of Ecology 229; in Germany: Kloepfer, Umweltrecht, at 1344; Staff Appraisal Report, Brazil, Water Quality and Pollution Control Project, 9. June 1992, Report No. 10523BR, 6, available at: http://documents.worldbank.org/curated/en/813501468017467479/pdf/multi-page. pdf, and the Philippines: ‘A “Law of Nature”—The Command and Control Approach’, Policy Brief No. 2002– 2, SANREM-CRSP-SEA, 2, available at: https://vtechworks.lib.vt.edu/bitstream/handle/10919/65228/21_ LawNatureSEAPolBrief2002_2.pdf. 48 National jurisdictions vary in the degree to which they rely on either environmental quality or emission limit standards, with environmental quality standards, for instance, considered to be less prevalent in Australia than in the United States (Murchison, ‘Environmental Law in Australia and the United States’, at 536). Some authors consider environmental quality standards as forerunners to emission limit standards (Tarlock and Tarak, ‘An Overview of Comparative Environmental Law’, at 100). 49 M. Watson, ‘The Enforcement of Environmental Law: Civil or Criminal Penalties?’ (2005) 17 Environmental Law and Management 5. 50 Z. Lipman and L. Roots, ‘Protecting the Environment through Criminal Sanctions: The Environmental Offences and Penalties Act 1989 (NSW)’ (1995) 12 Environmental and Planning Law Journal 16–36.

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command and control standards 859 Wales they can take the form of ‘enforcement undertakings’ which are negotiated between regulatory agencies and regulated organizations.51 Their economic benefits make them an attractive option. In England they have recently contributed around £1.5 million to the budget of regulatory agencies and third sector organizations working for environmental protection.52 In addition, in a range of jurisdictions that employ criminal sanctions for the enforcement of ‘command and control’ environmental standards, these sanctions are applied in a cooperative way. This occurs in the United Kingdom,53 Canada,54 and Australia,55 but to a lesser extent in the United States56 and Germany.57 Regulatory agencies seek negotiated solutions with those subject to ‘command and control’ standards before considering c riminal prosecutions. Cooperative enforcement is significant also because it can reduce ‘group polarization’, that is the tendency for views to become more extreme among members of groups that perceive themselves as distinct and potentially opposed.58 Furthermore, ‘command and control’ standards can no longer be perceived as a separate form of environmental regulation because they are closely linked in a number of jurisdictions to permissive economic incentive standards. The latter began to be developed in the United States in the late 1970s.59 There is now widespread interest in these also because various governments60 seek to harness the insights of behavioural economics and social psychology into how perceptions of economic advantage can promote environmental protection.61 Economic incentives are conventionally distinguished from ‘command and control’ standards since the former mobilize financial interests of regulated organizations—usually shaped by markets—in order to steer behaviour.62 In contrast, ‘command and control’ standards, 51 Regulatory Enforcement and Sanctions Act 2008, in connection with Art. 14 Environmental Civil Sanctions (England) Order 2010, SI 2010/1157. E. Fisher, B. Lange, and E. Scotford, Environmental Law: Text, Cases and Materials (Oxford: Oxford University Press, 2013), 330. 52 ‘£ 1.5m for environment as polluters pay up’, The Guardian, Monday, 30 January 2017, available at: https://www.theguardian.com/environment/2017/jan/30/companies-pay-out-more-than-15m-forbreaking-environment-laws. 53 K. Hawkins, Environment and Enforcement (Oxford: Oxford University Press, 1984). 54 K. Harrison, ‘Is Cooperation the Answer? Canadian Environmental Enforcement in Comparative Context’ (1995) 14(2) Journal of Policy Analysis and Management 221. 55 Murchison, ‘Environmental Law in Australia and the United States’, at 519, 538. 56 Ibid., at 533. 57 C. Knill and A. Lenschow, ‘Coping with Europe: The Impact of British and German Administrations on the Implementation of EU Environmental Policy’ (1998) Journal of European Public Policy 597. 58 M. Walker Wilson ‘A Behavioral Critique of Command-and-Control Environmental Regulations’ (2005) 16(2) Fordham Environmental Law Review 251. 59 Harrington and Morgenstern, ‘Economic Incentives versus Command and Control’, at 14, 17. 60 e.g. in the United Kingdom, ‘The Behavioural Insights Team’ (also known as ‘Nudge Unit’) jointly owned by the Cabinet Office, employees and an innovation charity (http://www.behaviouralinsights. co.uk/); in the United States before the Trump administration, ‘The Social and Behavioral Sciences Team (SBST)’. There has also been a ‘Nudging Network’ in Denmark (http://www.danishnudgingnetwork.dk/). 61 For an academic discussion of this see Wilson, ‘A Behavioral Critique of Command-and-Control Environmental Regulations’. 62 See e.g. Kloepfer, Umweltrecht, at 260. Economic incentive instruments is a broad brush term for regulatory tools that seek to harness economic reasoning of both regulators and regulated organizations. This covers, first, those instruments which involve the state to simply pay regulated organizations for compliance with particular behavioural standards, e.g. through subsidies, loans, or allocation of contracts through procurement, etc. (T. Daintith, ‘The Techniques of Government’ in J. Jowell and D. Oliver (eds.), The Changing Constitution (Oxford: Oxford University Press, 1994)). Second, economic incentive instruments

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860 bettina lange reflecting an Austinian conception of law, draw on the authority and sanctioning power of the state in order to steer behaviour. But some of the strongest financial incentives—taxes and emissions trading—rely on ‘command and control’ standards. Environmental taxes—more widely applied in Europe than the United States63—impose through state law a specific ‘command’, for example, to pay a tax on the landfill of waste in the United Kingdom.64 Also ‘cap and trade’ emissions trading relies in a number of jurisdictions on ‘command and control’ standards, imposed as conditions in licences. For instance, in most EU Member States emitters of greenhouse gases have to obtain a licence which stipulates that the emitter has to have a number of pollution allowances equal to the amount of greenhouse gases they emit.65 In Germany and the United Kingdom failure to comply with these licences can be subject to quasi criminal66 or civil sanctions.67 Another example is trading in rights to the development of land, with that land also being subject to ‘command and control’ standards, to enable, for example, the conservation of forests in the United States.68 The ‘command and control’ technique of licensing is also employed for implementing the economic incentive mechanism of franchising,69 which can be harnessed for reducing pollution from environmentally relevant energy, water, and transport utilities. Finally, economic incentives can ‘fine-tune’ ‘command and control’ standards,70 for instance, when state subsidies promote research into and uptake of innovative technologies for achieving emission limits.71 Hence, in practice ‘command and control’ standards are often part of hybrid regimes of regulatory standards that include economic incentives and self-regulation.

38.2.4 The Implementation Deficit of ‘Command and Control’ Standards ‘Command and control’ standards have been criticized for being ineffective due to their implementation deficits which have been observed in a number of jurisdictions, such as also cover those tools which harness economic interests of regulated organizations to reduce their costs of compliance with environmental regulations, which can arise from environmental taxation. Costs of pollution control can also be reduced through participation in emissions trading by virtue of the ‘least cost abater’ principle. 63 Harrington and Morgenstern, ‘Economic Incentives versus Command and Control’, at 14. 64 Introduced in the United Kingdom through the Finance Act 1996. 65 S. Bell, D. McGillivray, O. W. Pedersen, E. Lees, and E. Stokes, Environmental Law (Oxford: Oxford University Press, 9th edn. 2017), 551. In Germany this occurs through an administrative permit for installations emitting greenhouse gases in accordance with the Treibhausgas-Emissionshandelsgesetz (TEHG) or the Bundesimmissionsschutzgesetz (Kloepfer, Umweltrecht, at 1576). 66 In Germany a quasi-criminal financial penalty payment for breach of the permit authorizing greenhouse gas emissions (Kloepfer, Umweltrecht, at 1578). 67 See e.g. Part 7 of the Greenhouse Gas Emissions Trading Scheme Regulations 2012 SI 2012/3038. 68 R. B. Stewart, ‘Models for Environmental Regulation: Central Planning versus Market-Based Approaches’ (1992) 19 (3) Boston College Environmental Affairs Law Review 556. 69 R. Baldwin, ‘Regulation: After “Command and Control’ ” in K. Hawkins (ed.), The Human Face of Law (Oxford: Oxford University Press, 1997), 71. 70 Ackerman and Stewart, ‘Reforming Environmental Law’, at 1334. 71 Harrison, ‘Is Cooperation the Answer?’, at 228.

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command and control standards 861 the EU,72 including Germany,73 and the United Kingdom,74 India,75 Canada,76 as well as the United States.77 Implementation deficits can be caused by a lack of organizational, financial78 or informational resources79 for regulatory agencies80 and regulated organizations. Limited resources, in turn, may be the result of wider ideological policy shifts, such as deregulation or ‘better regulation’ initiatives developed in the 1980s and 1990s in a number of jurisdictions, and promoted again under the 2016 Republican administration in the United States.81 Implementation deficits can also arise from the ‘capture’ of regulatory agencies by politically powerful and well-resourced regulated organizations82 both in Western liberal democracies and in socialist countries with a central state planned economy, such as former East Germany.83 Implementation deficits are particularly significant in the global South. In developing countries84 or countries with severely curtailed budgets for public administration, for instance in response to the 2007/8 financial crisis, capacity, in terms of political independence and professional expertise of regulatory agencies both for setting and enforcing ‘command and control’ standards may be limited.85 But what is the extent of these implementation deficits? Determining the ‘dark figure’ of non-implementation of ‘command and control’ standards is not straightforward, because it is not always possible to tie down the indeterminate language of law in order to decide what counts as non-implementation of an environmental standard. Moreover, official enforcement policies are not necessarily geared towards the ‘full’ implementation of standards. For instance, the Enforcement and Sanctions Policy of the Environment Agency for England states that enforcement of standards will be targeted at ‘breaches that undermine a regulatory framework’, as well as environmental risks that are ‘least well controlled’, or generated by ‘deliberate and organised crime’, and ‘activities that cause the greatest risk of serious environmental damage’.86 Hence, full implementation of environmental ‘command and control’ standards may not be 72 Knill and Lenschow, ‘Coping with Europe’, at 596. 73 G. Winter, Das Vollzugsdefizit (Berlin: E. Schmidt, 1975), Kloepfer, Umweltrecht, at 298. 74 Hawkins, Environment and Enforcement. 75 M. R. Reich and B. Bowonder, ‘Environmental Policy in India: Strategies for Better Implementation’ (1992) 20(4) Policy Studies Journal 643–61. 76 Harrison, ‘Is Cooperation the Answer?’, at 227. 77 In fact in the United States this implementation deficit of environmental ‘command and control’ standards has been considered as bigger than deficits in implementing ‘command and control’ standards in other areas of regulation, such as health and safety as well as utilities regulation (Schroth, ‘Comparative Environmental Law’, at 629; Steinzor, ‘Reinventing Environmental Regulation’, at 117). 78 Daintith, ‘The Techniques of Government’. 79 Clarke, Regulation, at 108. 80 Baldwin, Cave, and Lodge, Understanding Regulation, Theory, Strategy, and Practice, at 110. 81 In jurisdictions, such as the United States, where, in contrast to the United Kingdom, regulatory agencies are more closely associated with the government, rather than working ‘at arms length’ from it, such changes in political ideologies towards regulation, can be particularly significant (Clarke, Regulation, at 115). 82 Baldwin, Cave, and Lodge, Understanding Regulation, Theory, Strategy, and Practice, at 107. Clarke, Regulation, at 112. 83 Schroth, ‘Comparative Environmental Law’, at 616. 84 S. Dasgupta, A. Mody, S. Roy, and D. Wheeler, ‘Environmental Regulation and Development: A Cross-Country Empirical Analysis’ (2001) 29(2) Oxford Development Studies 174. 85 J. Braithwaite, ‘Responsive Regulation and Developing Economies’ (2006) 34(5) World Development 884–98. 86 Environment Agency, Enforcement and Sanctions Policy,, (April 2018) para 3.5. at: https://www. gov.uk/government/publications/environment-agency-enforcement-and-sanctions-policy. Moreover, there are significant limits to accessible statistical data in a number of jurisdictions about enforcement

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862 bettina lange a realistic objective, and thus implementation deficits may not be the most significant weakness of ‘command and control’ standards. More fundamentally these standards can be criticized for being based on insufficient knowledge of the nature and complexity of the environmental risks they seek to regulate.

38.2.5 The Conceptualization Gap of ‘Command and Control’ Standards ‘Command and control’ standards have been criticized as being too general, inflexible, and thus too blunt, in light of the complexity and poly-centricity87 of environmental risks.88 For instance, technology ‘command and control’ standards in the United States, Canada,89 and various EU Member States90 have been criticized as ‘mindlessly uniform’,91 simplistic, legalistic92 ‘end of pipe’ fixes. Such standards require polluting facilities to install ‘best available techniques’ that should not be ‘excessively costly’.93 Permits then specify emission limits or environmental quality standards that can be achieved by particular techniques. These standards can be ‘technology’ forcing when the ambient environmental quality standard is set at such a strict level that it requires the development of innovative technologies to meet it.94 Technology ‘command and control’ standards have nevertheless been criticized for failing to grapple with the more complex regulatory task, that is, to steer regulated organizations towards changing their underlying production towards less polluting and more resource efficient options.95 Most fundamentally, these standards have been criticized for reproducing regulation that is specific and restricted to single environmental media. Thus they do not reflect an understanding of the natural environment in terms of entire ecosystems, which involve interactions between various environmental media, such as air, water, and land. More radically, ‘command and control’ has been considered as misconceived since it can reduce ecosystems’ variability by artificially imposing standards that interfere with their natural actions taken (e.g. prosecutions taken, warning letters issued, number of inspections (Harrison, ‘Is Cooperation the Answer?, at 229). 87 Fisher, Lange, and Scotford, Environmental Law, at 25. 88 Daintith, in ‘The Techniques of Government’, makes this point more widely in relation to a whole range of ‘command and control’ standards but also economic incentive instruments. 89 Harrison, ‘Is Cooperation the Answer?’ at 222. 90 See e.g. Art. 11(b) Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on Industrial Emissions [2010] OJ L 334/17. 91 Ackerman and Stewart, ‘Reforming Environmental Law’, at 1355. 92 Baldwin, Cave, and Lodge, Understanding Regulation, Theory, Strategy, and Practice, at 108. 93 Article 3(10)(b) Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on Industrial Emissions [2010] OJ L 334/17. In the context of the US Federal Water Pollution Control Act the wording is ‘best available technology economically achievable’ (s. 301(b)(2)(A)). 94 Murchison, ‘Environmental Law in Australia and the United States’, at 528. 95 Sinclair, ‘Self-Regulation Versus Command and Control?’, at 539; O. Houck, ‘Tales from a Troubled Marriage: Science and Law in Environmental Policy’ (2003) Science 302, at 1928. Though in the case of the EU Directive on Industrial Emissions reducing raw material input and moving towards less polluting novel production processes are stated goals of the Directive (Art. 13(2)(a)); Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on Industrial Emissions [2010] OJ L 334/17, Preamble 2.

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command and control standards 863 change and evolution. This, in turn, can limit ecosystems’ ability to adapt to natural hazards, such as drought.96 But to control the dynamics of ecosystems through legal standards has enduring appeal. It underpins, for instance, an ecosystems services approach, adopted in a number of jurisdictions. This seeks to reduce natural variability in ecosystems in order to achieve a steady flow of goods and services from these for human societies.97 To reduce the ‘conceptualization gap’ of ‘command and control’ standards, such standards have been reformed in a number of jurisdictions. In the 1990s in the United Kingdom98 and EU Member States,99 as well as in Israel100 and to some extent in the United States,101 reformed standards seek to provide more ‘integrated’ pollution prevention and control, that takes cross-media pollution into account. Integrated ‘command and control’ standards are a more procedural and reflexive, less interventionist form of law.102 For instance, in England and Wales permits for the emission of pollutants to air, water, and land are now issued by one regulatory authority, the Environment Agency for England or Natural Resources Wales. This should enable licensing officers to take an integrated view of the emission of pollutants into all three environmental media, thereby reducing the risk of simply shifting pollutants from one environmental medium to another.103 But the extent to which pollution control is institutionally integrated varies from jurisdiction to jurisdiction.104 The EU Industrial Emissions Directive enables various regulatory authorities to merely coordinate the setting of conditions, rather than to issue one single integrated permit.105 Most fundamentally, in order to realize ‘integrated’ pollution control regulators and regulated organizations need to

96 Holling and Meffe, ‘Command and Control and the Pathology of Natural Resource Management’, at 331. 97 Ibid., at 329. 98 Through the Environmental Protection Act 1990 which introduced in Part I a new system of integrated pollution control (IPC) which was the forerunner for the EU-wide system of pollution prevention and control. In the United Kingdom integrated pollution prevention and control started to develop early, through the Alkali etc. Works Regulation Act 1881 (B. Pontin, ‘Integrated Pollution Control in Victorian Britain: Rethinking Progress Within the History of Environmental Law’ (2007) 19(2) Journal of Environmental Law 175). 99 Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on Industrial Emissions [2010] OJ L 334/17. 100 M. Merdler and Z. Lev, ‘Israel’ in Global Legal Group in association with Freshfields Bruckhaus Deringer, The International Comparative Legal Guide to Environment & Climate Change Law 2016, at 120. 101 In comparison to other jurisdictions the United States, however, is considered as applying only to a limited extent an integrated permitting system (Murchison, ‘Environmental Law in Australia and the United States’, at 533). Integrated permitting has been promoted in the US e.g. at state level through facility wide permits (Comer, 'Building Sustainable Systems Brick by Brick: A Comparative Look at Integrated Permitting in the UK and the Potential for Sustainable Approaches in the United States', Natural Resources & Environment (2012) 26 (3) 3. 102 N. Luhmann, Ökologische Kommunikation (Opladen: Westdeutscher Verlag, 1988), 127. 103 For instance, removing air pollutants through filters from factory stack emissions can increase land contamination when these filters are disposed of in landfill sites. Hornstein, ‘Reclaiming Environmental Law’, at 581. 104 Hornstein, ‘Reclaiming Environmental Law’, at 583. 105 Article 5(2) Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on Industrial Emissions [2010] OJ L 334/17. The forerunner to this Directive was the Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control [1996] OJ L 257/26.

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864 bettina lange have sufficient scientific knowledge about how different environmental media interact, and how they are shaped by human responses, a point discussed in the next section.

38.3 Developing Integrated and Harmonized Standards through Applied Science Models 38.3.1 Science as Trans-jurisdictional? Science refers here to accounts of environmental risks which are based on formalized systematic, and transparent reasoning that relies on the academic discipline of environmental sciences, including toxicological, epidemiological, and ecological information about pollution. Pure, original, open-ended academic ‘laboratory’ science can be distinguished from what Sheila Jasanoff has called ‘regulatory science’, that is science adapted to the specific knowledge needs of regulators.106 Hence, legal provisions can further shape what science is used and what specific questions it addresses. ‘Regulatory science’ may involve meta-analysis, that is synthesis of existing international academic knowledge, and usually does not strive to be innovative. Two key types of regulatory science are modelling and risk assessment. Modelling involves building representations of the natural environment. This means to abstract from the specific and detailed features of the particular elements of the natural environment, in order to focus on key elements and relationships. The challenge is to build abstract modelled representations of the natural environment without distorting how the natural environment actually works in practice. Risk assessment—which may include modelling—involves to provide formalized assessment of the adverse effects of specific environmental risks.107 In legal regulation risk assessments are often considered to be the first phase of regulation, followed by a second phase of risk evaluation, which enables to take into account values, such as potential trade-offs between adverse effects of pollution on human health and the natural environment. It is a distinguishing feature of environmental science accounts to capture environmental risks through ‘common units of measurement’,108 thus making risks comparable and capable of being ‘traded-off ’ against each other.109 Such comparative risk analysis110 can help to identify priorities for the setting of ‘command and control’ standards across a range of

106 S. Jasanoff, The Fifth Branch: Science Advisors as Policy Makers (Cambridge M.A.: Harvard University Press, 1990), 77. 107 Fisher, Lange, and Scotford, Environmental Law, at 37. 108 One example of such a ‘common unit of measurement’ of environmental losses are ‘quality adjusted life years’ (Hornstein, ‘Reclaiming Environmental Law’, at 562, 585). 109 How distinct ‘scientific’ understandings are from ‘lay’, experience-based, as well as political and bureaucratic knowledges of environmental risk is a matter of debate in the academic literature. Some consider citizens’ perceptions of risk as shaped also by heuristic biases and subjective shortcuts as well as systematic cognitive errors (Hornstein, ‘Reclaiming Environmental Law’, at 562, 589, 612). 110 Ibid., at 567.

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command and control standards 865 jurisdictions111 for ‘low’, ‘medium’, and ‘high’ risks. It thereby also seeks to avoid that pollution is merely shifted through legal controls from one environmental medium to another. But there are various limits to science harmonizing ‘command and control’ standards. First, scientific knowledge—just like law—is inextricably linked to value choices, which can be shaped by jurisdiction specific preferences. For instance, values play a role in what becomes considered as a ‘benchmark’ of acceptable risk when comparative risk analysis is conducted,112 especially when there is ‘low certainty’ in scientific knowledge, and ‘low consensus’ about risk regulation.113 In addition, what constitutes ‘pollution’ is shaped by what is defined as that by a ‘command and control’ legal standard that seeks to reduce or eliminate this ‘pollution’. These legal standards are, in turn, influenced by value choices about the ‘appropriate costs and benefits’ of reducing pollution.114 Moreover, scientific risk assessments start from a baseline of risks already accepted by the value choices embedded in existing environmental law.115 Hence, like law science may speak with a national accent:116 ‘Judgments about the same hazard, based on the same scientific knowledge and evidence, do not always lead to the same estimates of possible harm in different national regulatory systems’.117 Second, while globalization of trade flows can increase demand for science in standard setting, this may also entrench jurisdiction specific rather than harmonized ‘command and control’ standards. The transnational law of trading blocs, such as the EU,118 and of Mercosur

111 Hornstein, for instance, suggests with reference to EPA reports that groundwater pollution has been unduly prioritized in the United States in comparison to the higher risks posed by indoor and global air pollution (Hornstein, ‘Reclaiming Environmental Law’, at 562, 579). 112 Hornstein, ‘Reclaiming Environmental Law’, at 619. D. Winickoff, S. Jasanoff, L. Busch, R. GroveWhite, and B. Wynne, ‘Adjudicating the GM Food Wars: Science, Risk, and Democracy in World Trade Law’ (2005) 30 Yale Journal of International Law 1, at 94) refer to the example of whether morbidity (i.e. quality of life being affected by disease) or mortality indicators are used to assess the negative impacts of pollutants. Also some adjudicators concur with the idea that values matter in risk assessment. For instance, the Appellate Body in the Hormones case considered risk management and risk assessment as closely linked [European Communities—EC Measures Concerning Meat and Meat Products (Hormones)— AB-1997-4—Report of the Appellate Body, WT/DS26/AB/R; WT/DS48/AB/R (Winickoff et al., ‘Adjudicating the GM Food Wars’, at 96). There are also examples, however, of EU environmental legislation seeking to distinguish between the risk assessment and risk management phase in the EU authorization procedure for genetically modified organisms (see e.g. Art. 12(1) and (3) 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/EEC [2001] OJ L 106/1). 113 Winickoff et al., ‘Adjudicating the GM Food Wars’, at 86. 114 Tarlock and Tarak, ‘An Overview of Comparative Environmental Law’, at 89. 115 Hornstein, ‘Reclaiming Environmental Law’, at 620. 116 Winickoff et al., ‘Adjudicating the GM Food Wars’, at 96. These authors (at 112) also point to the fact that there are nationally and regionally distinct views of whether, in the first instance, risks exist that are worth assessing. For instance, chemical risk assessment procedures were developed in the 1970s and 1980s further and earlier in the US than in Europe. 117 Ibid., at 97. 118 There are numerous examples of this in EU environmental law, e.g. the power for Member States to derogate from harmonized EU environmental standards, including ‘command and control’ standards under Art. 114(5) TFEU, as well as ‘safeguard clauses’ in specific pieces of EU environmental legislation, such as Art. 23 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/EEC [2001] OJ L 106/1.

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866 bettina lange as interpreted by one of its Tribunals119 can require states to justify—on the basis of scientific risk assessments—national standards that may limit free trade.120 Here science in defence of national legal rules can limit the harmonization of ‘command and control’ standards.121 The next sections further probe the potential of science to contribute to the h armonization of ‘integrated’ ‘command and control’ standards that chime with the characteristics of the natural environment they seek to regulate. They focus on the ‘Drivers’, ‘Pressures’, ‘States’, ‘Impacts’, and ‘Responses’ (DPSIR) applied science model.

38.3.2 The DPSIR Model 38.3.2.1 Introduction DPSIR is particularly relevant for advancing ‘command and control’ standards that are integrated in the sense that they take account of the impacts of human generated pollution across all three environmental media, air, water, and land. DPSIR can contribute to the setting of such integrated ‘command and control’ standards because it traces intersections between a social and a natural world. It also aims to communicate policy messages to law-makers about such intersections.122 Having been established by international organizations, DPSIR has influenced the setting and implementation of ‘command and control’ standards in a range of jurisdictions, including EU environmental policies123 and legislation,124 as well as proposals for ‘command and control’ standards in non-European jurisdictions. The forerunner to DPSIR, the Pressures, States, and Responses (PSR) model was developed by the Organisation for Economic Co-operation and Development (OECD) in the 1990s.125 The European Environment Agency (EEA) then extended PSR126 into DPSIR in order to enable comparison of data about the implementation of environmental laws in 119 There does not seem to be a requirement for Mercosur Member States arising from the foundational Mercosur agreements to provide scientific evidence for the maintenance of national legal rules for the protection of the environment that may limit free trade between Mercosur Member States. But a Mercosur Tribunal ruled in relation to Brazilian measures restricting importation of phytosanitary products into Brazil that not adopting such measures would constitute actual harm to the health of persons, animals, and plants (F. Morosini, ‘The MERCOSUR Trade and Environment Linkage Debate: The Disputes over Trade in Retreaded Tires’ (2010) 44(5) Journal of World Trade 1133). 120 Winickoff et al., ‘Adjudicating the GM Food Wars’, at 91. 121 J. Atik, ‘Science and International Regulatory Convergence’ (1996–97) 17 Northwestern Journal of International Law & Business 736. 122 M. Elliott, D. Burdon, J. P. Atkins, A. Borja, R. Cormier, U. N. de Jonge, and R. K.Turner, ‘And DPSIR Begat DAPSI (W) R (M)!: A unifying Framework for Marine Environmental Management’ (2017) Marine Pollution Bulletin 12. 123 e.g. the implementation of Green Infrastructure initiatives in southern Italy (M. Spanò, F. Gentile, C. Davies, and R. Lafortezza, ‘The DPSIR Framework in Support of Green Infrastructure Planning: A Case Study in Southern Italy’ (2017) 61 Land Use Policy 242). 124 G. Guariso, M. Maione, and M. Volta, ‘A Decision Framework for Integrated Assessment Modelling of Air Quality at Regional and Local Scale’ (2016) 65 Environmental Science and Policy 3–12. 125 Report of the OECD Core Set of Indicators for Environmental Performance Reviews. OECD Environment Monographs No. 83, Paris, 5. 126 C. Baldwin, R. L. Lewison, S. N. Lieske, M. Beger, E. Hines, P. Dearden, M. A. Rudd, C. Jones, S. Satumanatpan, and C. Junchompoo, ‘Using the DPSIR Framework for Transdisciplinary Training and Knowledge Elicitation in the Gulf of Thailand’ (2016) Ocean & Coastal Management 164.

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command and control standards 867 different EU Member States.127 DPSIR helped to collate data not only about the ‘State’ of the environment, but also about how ‘Responses’ to and ‘Impacts’ of environmental risks may change these ‘States’. DPSIR has also been used by the UN in order to develop global policies for water resources,128 and has informed proposals for coastal management in Malaysia,129 and at the border of Thailand and Cambodia,130 as well as proposals for adaptive beach management in Argentina131 and Brazil.132 So what are key features of DPSIR?

38.3.2.2 Key Features of DPSIR Some DPSIR models draw on positivist, natural science, quantitative epistemologies133 which seek to generate ‘neutral, objective knowledge’ even though they may include stakeholder perspectives.134 Other DPSIR models rely on social constructivist perspectives. Here environmental risks are understood also with reference to various domains of institutional governance ‘nested’ within each other and informed by experience based knowledge of actors.135 Similarly, Svarstad et al. include discourse analysis in their version of DPSIR in order to capture variation in the way environmental risks are framed and understood by stakeholders and citizens more widely.136 Despite these variations in DPSIR models, it is possible to identify their key features as set out in the following diagram (Figure 38.1).137 The diagram shows that ‘Drivers’ of environmental risks, located in the natural or social world, can generate ‘Pressures’ for the natural environment, which then alter the ‘State’ of environmental media, which, in turn, leads to specific environmental ‘Impacts’. The latter usually engender human ‘Responses’. In fact DPSIR models can structure the collection of data about a whole range of ‘Responses’. This can include mitigation and compensation measures, which may, reduce ‘Impacts’ for example of air pollution, without actually changing

127 Guariso, Maione, and Volta, ‘A Decision Framework for Integrated Assessment Modelling of Air Quality at Regional and Local Scale’, at 5. 128 WWAP—World Water Assessment Programme, 2012, The United Nations World Water Development Report 4: Managing Water under Uncertainty and Risk. UNESCO, Paris, 18, 21. 129 N. S. Sarmin, I. M. Hasmadi, H. Zaki Pakhriazad, and W. A. Khairil, ‘The DPSIR Framework for Causes Analysis of Mangrove Deforestation in Johor, Malaysia’ (2016) 6 Environmental Nanotechnology, Monitoring & Management 214. 130 Baldwin et al., ‘Using the DPSIR Framework’, at 164. 131 V. Semeoshenkova, A. Newton, M. Rojas, M. Cintia Piccolo, M. Luján Bustos, M. Andrea Huamantinco Cisneros, and L. G. Berninsone, ‘A Combined DPSIR and SAF Approach for the Adaptive Management of Beach Erosion in Monte Hermoso and Pehuen Co (Argentina)’ (2016) Ocean & Coastal Management 63. 132 Ibid., at 64. 133 For instance, Spanò et al., ‘The DPSIR Framework in Support of Green Infrastructure Planning’, at 243 suggest that applications of DPSIR fulfil the standard criterion of ‘replicability’ for natural science research. 134 Baldwin et al., Using the DPSIR Framework’, at 171. 135 B. Ness, S. Anderberg, and L. Olsson, ‘Structuring Problems in Sustainability Science: The Multilevel DPSIR Framework’ (2010) 41 Geoforum 479–88. 136 H. Svarstad, L. Kjerulf Petersen, D. Rothman, H. Siepel, and F. Wätzold, ‘Discursive Biases of the Environmental Research Framework DPSIR’ (2008) 25 Land Use Policy 116–25. 137 Source: D. Oesterwind, A. Rau, and A. Zaiko, ‘Drivers and Pressures—Untangling the Terms Commonly Used in Marine Science and Policy’ (2016) Journal of Environmental Management 114.

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Driving Forces

es

Pressur es

ons Resp

Sta te

pa Im

ct

Figure 38.1 The DPSIR Model

concentrations of pollutants (i.e. ‘States’).138 But does DPSIR actually render ‘command and control’ standards more comparable and alike across different jurisdictions?

38.3.3 DPSIR as a Standard Harmonizer? DPSIR has informed the setting of standards intended to achieve compliance with the EU Ambient Air Quality Directive.139 More specifically, EU Member States, such as the United Kingdom and to some extent Germany, have used DPSIR for the drafting of Air Quality Plans140 which they have to prepare for those zones where ‘command and control’ standards for air quality have been breached.141 Both the UK Air Quality Plan 142 and some Air Quality 138 Guariso, Maione, and Volta, ‘A Decision Framework for Integrated Assessment Modelling of Air Quality at Regional and Local Scale’, at 7. 139 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 [2008] OJ L 152/1. The Directive contains a number of ‘command and control’ standards, such as a requirement for EU Member States to establish ‘zones’ (Art. 4) and to assess ambient air quality with reference to specific pollutants (Art. 6). 140 Member States’ Air Quality Plans contain a range of measures. A significant element of these are economic incentives for reducing NOx and CO2 emissions from traffic (DEFRA, Department for Transport ‘UK plan for tackling roadside nitrogen dioxide concentrations: An overview’, July 2017, 8–9). The UK Plan also contains reference to ‘command and control’ standards, such as restrictions on access to certain areas for some vehicles (DEFRA, Department for Transport ‘UK Plan for tackling Roadside Nitrogen Dioxide Concentrations: An Overview’, July 2017, 8, at: https://www.gov.uk/government/ publications/air-quality-plan-for-nitrogen-dioxide-no2-in-uk-2017). 141 Article 23 Ambient Air Quality Directive; Guariso, Maione, and Volta, ‘A Decision Framework for Integrated Assessment Modelling of Air Quality at Regional and Local Scale’. 142 UK Plan for tackling roadside nitrogen dioxide concentrations, Technical Report, 2017, available at: https://www.gov.uk/government/publications/air-quality-plan-for-nitrogen-dioxide-no2-in-uk-2017.

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command and control standards 869 Plans in Germany143 use the language of ‘Drivers’, ‘Responses’, and ‘Impacts’ to analyse breach of air quality standards in cities, mainly caused by traffic. In both the United Kingdom and German reports the concept of ‘Impact’ is further developed by including both primary and secondary ‘Impacts’ not just of the original pollution from nitrogen oxides and fine particulates but also the ‘Impacts’ of the ‘Responses’ that have been developed in relation to air pollution. This includes in both countries efforts to increase the number of electric passenger cars and charging vehicles for entry into zones around pollution hot spots.144 Hence, DPSIR has been used in a number of jurisdictions to specify ‘Drivers’ and ‘States’ of air quality, though with less detailed data being collected by regulatory authorities for the evaluation of ‘Pressures’, ‘Responses’, and the quantification of ‘Impacts’ on human health and ecosystems.145 DPSIR has also facilitated the setting of environmental ‘command and control’ standards in the context of water pollution. Here DPSIR has helped to identify links between ‘Pressures’146 and ‘Impacts’ along particular stretches of a water course. This enables to subdivide water bodies into smaller units147 which makes it easier to develop ‘programmes of measures’.148 These programmes are key for achieving compliance with objectives of the EU WFD, such as good ecological status of water bodies by 2015. These programmes of measures may, in turn, shape what conditions are imposed by a regulatory agency, such as the EA, in licences for discharges of pollutants into rivers or groundwater by for example factories and sewage treatment works along a particular stretch of a water course. More specifically DPSIR can help to identify cause-effect relationships between ‘Pressures’ and ‘States’ for a range of environmental risks. Understanding such relationships can point to ‘necessary’ management ‘Responses’.149 Such ‘Responses’ may be applicable across different jurisdictions, and they may involve the setting of environmental ‘command and control’ standards. Hence, DPSIR may render ‘command and control’ standards—one possible key response—more alike across different jurisdictions.

This has now been subject to a third successful judicial review challenge by the environmental NGO Client Earth [2018] EWHC 315 (Admin). 143 Such as the current Air Quality Plan of the city of Stuttgart: Gesamtwirkungsgutachten zur immissionsseitigen Wirkungsermittlung der Massnahmen der 3. Fortschreibung des Luftreinhalteplans Stuttgart, at: https://vm.baden-wuerttemberg.de/de/mensch-umwelt/luftreinhaltung/luftreinhalteplaene/. 144 Gesamtwirkungsgutachten zur immissionsseitigen Wirkungsermittlung der Massnahmen der 3. Fortschreibung des Luftreinhalteplans Stuttgart, at: https://vm.baden-wuerttemberg.de/de/ menschumwelt/luftreinhaltung/luftreinhalteplaene/, 66. 145 Guariso, Maione, and Volta, ‘A Decision Framework for Integrated Assessment Modelling of Air Quality at Regional and Local Scale’, at 10. 146 ‘Pressures’ can include economic activity factors (e.g. ports, fisheries, agriculture) and actual pollution resulting from these economic activities. Attenuation of adverse impacts of these ‘Pressures’ through already existing legislation should be taken into account (Á. Borja, I. Galparsoro, O. Solaun, I. Muxika, E. M. Tello, A. Uriarte, and V. Valencia, ‘The European Water Framework Directive and the DPSIR, a Methodological Approach to Assess the Risk of Failing to Achieve Good Ecological Status’ (2006) Estuarine, Coastal and Shelf Science 66, 85, 86). 147 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy [2000] OJ L 327/1); Borja et al., ‘The European Water Framework Directive and the DPSIR’, at 84–96. 148 As required by Art. 11 EU WFD. 149 J. G. Ferreira, C. Vale, C. V. Soares, F. Salas, P. E. Stacey, S. B. Bricker, M. C. Silva, and J. C. Marques, ‘Monitoring of Coastal and Transitional Waters Under the EU Water Framework Directive’ (2007) 135 Environmental Monitoring and Assessment 195, at 199.

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870 bettina lange Moreover, DPSIR has facilitated the implementation of ‘command and control’ standards across various jurisdictions, including those arising from international environmental law. It thereby contributes to rendering standards—also in practice—more alike across different jurisdictions. In the first instance, DPSIR helps to develop indicators of, for example, the quality of water courses.150 This contributes to the implementation of Article 8 EU WFD which requires Member States to monitor ‘the State’ of water bodies. Also Article 8 of the EU Marine Strategy Framework Directive (MSFD) requires Member States to assess ‘the State’ of marine ecosystems. Similarly, in the United States section 305(b) of the US Clean Water Act asks states to monitor and provide data to the US Environmental Protection Agency (USEPA) about the condition of navigable, including coastal water bodies within their jurisdiction. But DPSIR can also identify local variation in cause-effect relationships which may require locally specific ‘Responses’. For instance, DPSIR has shown that harmful algal bloom in water courses that leads to breaches of environmental quality standards in coastal waters151 may be caused by nutrient run-off from land. Reducing run-off through changed farming practices may then be an appropriate ‘Response’. But harmful algal bloom can also be caused by the non-anthropogenic factor of germination of cysts of particular species of algal bloom in sea sediments far from the shore. This requires a different ‘Response’. Hence, DPSIR provides a common language for identifying and measuring environmental risks across different jurisdictions, and to set ‘command and control’ standards accordingly. But the broad concepts of ‘Drivers’, ‘Pressures’, ‘States’, ‘Impacts’, and ‘Responses’ leave room for their locally variable interpretation. For instance, regulatory authorities implementing the EU WFD in Member States have to identify ‘significant pressures’,152 with ‘significant’ likely to mean a risk of non-compliance with the objectives of the Directive.153 Hence, regulatory authorities will assess whether ‘Pressures’ on water courses, such as the introduction of alien species into them,154 are ‘high’, ‘moderate’, or ‘low’. Sometimes the numbers will speak for themselves.155 For instance, when comparing figures for sediment pollution in stretches of a river, it can be very clear in which part there is a ‘Pressure’ on sediment pollution, and where there is not.156 Finally, DPSIR also contributes to the harmonization of ‘command and control’ standards by having informed proposals for the reform of EU wide standards. For instance, the EU Marine Strategy Framework Directive (MSFD)157 requires Member States to achieve ‘good environmental status’ for their marine waters by 2020. Commission Decision 2010/477/EU lists eleven ‘Descriptors’ that flesh out what is meant by the ‘command and control’ standard ‘good environmental status’. For instance, Descriptor 3 requires that the ‘populations of all 150 For instance, the EU WFD requires biological quality elements and supporting quality elements to be considered as indicators of water quality, but leaves open to consider also other indicators (ibid., at 195, 197). 151 Ibid., at 213. 152 Annex VII, A 2 EU WFD. 153 Borja et al., ‘The European Water Framework Directive and the DPSIR’, at 89. 154 Ibid. 155 C. Anderson, ‘The End of Theory: The Data Deluge Makes the Scientific Method Obsolete’ (2008) Science, available at: https://www.wired.com/2008/06/pb-theory/. 156 Borja et al., ‘The European Water Framework Directive and the DPSIR’, at 92. 157 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 (Marine Strategy Framework Directive) [2008] OJ L 164/19.

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command and control standards 871 commercially exploited fish and shellfish are within safe biological limits, exhibiting a population age and size distribution that is indicative of a healthy stock’. This Descriptor has been criticized as being based on an insufficient analysis of the relationship between the ‘Pressures’ on the size of the fish stock and its structure, because in the original version of the MSFD the indicators for Descriptor 3 were not categorized as either ‘State’ or ‘Pressure’ indicators.158 It has also been suggested that the criteria for defining the indicators should be streamlined from three to two, focusing on the stock biomass and its size distribution.159 To summarize, DPSIR can contribute through a common applied science language to the comparable analysis of environmental risks in a number of jurisdictions. But it is limited in its capacity to develop ‘integrated’ ‘command and control’ standards and to thereby reduce the ‘conceptualization gap’ of these standards.

38.3.4 Limitations of DPSIR in Providing an Integrated View of Environmental Risks DPSIR analyses environmental risks by providing an understanding of how the human and natural world interact.160 It can therefore contribute to more ‘integrated’ pollution control.161 For instance, the human drivers of habitat change, over-exploitation, and the introduction of non-indigenous species, as well as the natural driver of changing weather patterns have been identified as ‘Drivers’ of marine ecosystem pollution. But frequently DPSIR considers ‘Drivers’ and ‘Responses’ as located only in the human environment,162 while ‘States’ describe merely the natural environment.163 This impedes a fully integrated understanding of how both nature and human action together create ‘Drivers’ of, ‘Responses’ to, and ‘States’ of environmental risks. A further example of this non-integrated view is a study of water quality in an Amazon estuary in the Caeté-PA region of Brazil. ‘Drivers’ of water pollution 158 The current Descriptor 3 contains three criteria, which are further specified through eight indicators (W. N. Probst, A. Rau, and D. Oesterwind, ‘A Proposal for Restructuring Descriptor 3 of the Marine Strategy Framework Directive (MSFD)’ (2016) Marine Policy 74, at 129). 159 Stock biomass refers to the state of ‘stock size’, while size distribution captures how many fish in the fish stock are young and small fish, and how many are old and large ones (ibid., at 130, 132). 160 M. C. Monteiro, J. A. Jiménez, and L. Cajueiro Carneiro Pereira, ‘Natural and Human Controls of Water Quality of an Amazon Estuary (Caeté-PA, Brazil)’ (2016) 124 Ocean & Coastal Management 48. 161 Oesterwind, Rau, and Zaiko, ‘Drivers and Pressures’, at 8. 162 See e.g. Semeoshenkova et al., ‘A Combined DPSIR and SAF Approach’, at 64; Probst, Rau, and Oesterwind, ‘A Proposal for Restructuring Descriptor 3’, at 129; Borja et al., ‘The European Water Framework Directive and the DPSIR’, at 85. 163 DPSIR models often use the term ‘state’ to talk about the ‘state’ or changes in the state of the natural, not social environment. Examples of this are: Guariso, Maione, and Volta, ‘A Decision Framework for Integrated Assessment Modelling of Air Quality at Regional and Local Scale’, at 6; P. Viaene, C. A. Belis, N. Blond, C. Bouland, K. Juda-Rezler, N. Karvosenoja, A. Martilli, A. Miranda, E. Pisoni, and M.Volta, ‘Air Quality Integrated Assessment Modelling in the Context of EU Policy: A Way Forward’ (2016) 65 Environmental Science and Policy 23; Baldwin et al., ‘Using the DPSIR Framework’, at 164, 168. Table 1 in Baldwin et al., ‘Using the DPSIR Framework’, however, identifies changes in ‘community health’ as a possible state change. But only one of the four groups that applied the DPSIR model during the workshop defined ‘state’ in this more cross-sectoral way.

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872 bettina lange were identified mainly in the human environment, such as unplanned urban development without sufficient sewage treatment. There was no discussion of how such ‘Drivers’ may be reinforced by the natural environment itself, such as the velocity of the river flow affecting the concentration of pollutants. Also ‘Responses’ focused on those located in the human environment, such as ‘planning’, ‘infrastructure’, ‘monitoring’, and ‘regulation’.164 Similarly, a study of 170 indicators that flesh out ‘Drivers’, ‘Pressures’, ‘Impacts’, ‘Responses’, and in particular ‘States’ of water quality and quantity found that these indicators addressed usually only one, rather than the full range of dimensions of sustainability.165 Hence, the indicators differentiated rather than integrated natural and human factors affecting the environment. For instance, indicators focused, on the one hand, on social or economic dimensions, such as citizen participation in decision-making about water quality or quantity, or uptake of production processes that minimize water pollution. On the other hand, indicators captured environmental dimensions of sustainability, such as levels of pollution. Some indicators addressed institutional dimensions of sustainability. But few indicators addressed all four, that is, economic, social, environmental, and institutional dimensions of sustainable water use. Some DPSIR models, however, transcend this bifurcated view of human and natural factors as distinct forces that shape environmental risks. Some models locate ‘Drivers’ both in the linked natural and social environment, such as changes in climatic conditions that affect water resources coupled with cultures of consumption that drive inefficient water use.166 Similarly, ‘impacts’ are often defined as occurring both in natural and social environments.167 For a fully integrated view, it is, however, essential to understand interactions between natural and social impacts of environmental risks. For example, environmental risks such as water scarcity can ‘impact’ natural environments by for instance reducing river flows and killing fish. But they can also affect social environments, for example by curtailing industrial production due to cooling water shortages that limit energy supplies.168 In order to further

164 Monteiro et al., ‘Natural and Human Controls of Water Quality of an Amazon Estuary’, at Figure 7, 49. See also Spanò et al., ‘The DPSIR Framework in Support of Green Infrastructure Planning’, at 244. 165 A. Pires, J. Morato, H. Peixoto, V. Botero, L. Zuluaga, and A. Figueroa, ‘Sustainability Assessment of Indicators for Integrated Water Resources Management’ (2017) 578 Science of the Total Environment 145. 166 See e.g. Baldwin et al., ‘Using the DPSIR Framework’, at 164; Guariso, Maione, and Volta, ‘A Decision Framework for Integrated Assessment Modelling of Air Quality at Regional and Local Scale’, at 6. But various applications of DPSIR further entrench a bifurcated view of the natural and social world because they locate ‘Drivers’ only in the social world (see e.g. Semeoshenkova et al., ‘A Combined DPSIR and SAF Approach’, at 64; Viaene et al., ‘Air Quality Integrated Assessment Modelling’, at 23; N. S. Sarmin, I. Mohd Hasmadi, H. Z. Pakhriazad, and W. A. Khairil, ‘The DPSIR Framework for Causes Analysis of Mangrove Deforestation in Johor, Malaysia’ (2016) 6 Environmental Nanotechnology, Monitoring & Management 214; see also Borja et al., ‘The European Water Framework Directive and the DPSIR’, at 85. 167 See e.g. Baldwin et al., ‘Using the DPSIR Framework’; Guariso, Maione, and Volta, ‘A Decision Framework for Integrated Assessment Modelling of Air Quality at Regional and Local Scale’, at 6; Viaene et al., ‘Air Quality Integrated Assessment Modelling’, at 23, 26. There are, however, a number of studies that further entrench a bifurcated understanding of the environment by understanding ‘impacts’ solely in terms of impacts on the social world, rather than as impacts also on the natural or linked natural-social world (Semeoshenkova et al., ‘A Combined DPSIR and SAF Approach’, at 68; G. Tsakiris, ‘Proactive Planning Against Droughts’ (2016) 162 Procedia Engineering 19). 168 Various DPSIR models recognize different types of impact, such as ‘immediate’ and ‘delayed’ impacts, as well as ‘tangible’ and ‘intangible’ impacts (Tsakiris, ‘Proactive Planning against Droughts’, at 18).

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command and control standards 873 develop an understanding of interactions between a human and natural world it is also important to understand how these interactions work across different spatial and temporal scales on which ‘Drivers’, ‘Pressures’, ‘States’, ‘Impacts’, and ‘Responses’ can be located. But few DPSIR models incorporate this additional layer of complexity in their a nalysis. Developing more ‘integrated’ ‘command and control’ standards also requires matching more closely the spatial scale at which administrative authorities enforce such standards to the ‘natural’ spaces to be governed by these standards. In the context of the EU WFD this has been attempted through the creation of ‘river basin management’.169 This entails scaling the boundaries of the administrative authority that implements WFD standards to the natural space of a river basin. These authorities then develop ‘programmes of measures’ for particular river basins.170 Similarly, according to Guariso et al. air pollution policies should be applied to the boundaries of a relevant ‘physical domain’, such as a portion of an air basin.171 But while some DPSIR models recognize that environmental risks can be located on various spatial scales,172 they usually do not explain how ‘Drivers’, ‘Pressures’, and ‘Responses’ etc. may vary according to the particular jurisdictional, geographical, social community and policy scope scales on which ‘Drivers’, ‘Pressures’, ‘States’, ‘Responses’, and ‘Impacts’ can be located.173 Also recognizing different temporal scales on which ‘Drivers’, ‘Pressures’, ‘States’, ‘Responses’, and ‘Impacts’ can be located helps to understand how intersections between a natural and social world generate environmental risks. For instance, understanding the different time scales involved in the breakdown of pollutants in water courses is necessary for choosing an appropriate frequency for the human response of monitoring. Annex V of the WFD specifies minimum monitoring frequencies but DPSIR analysis may show that these are insufficient.174 Moreover, including temporal scales can show how perceptions of environmental risks may change or stay the same over time. This, in turn, may have consequences for the choice of appropriate ‘Responses’. For instance, novel risks arising from innovative technologies may initially be perceived as ‘low certainty, low consensus’ risks, but over time may evolve into ‘high certainty, high consensus’ risks.175 Capturing such shifts can support arguments for interventionist ‘command and control’ standards which may be inappropriate if there is low certainty over whether a limited risk will actually materialize.

169 Article 3 Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy [2000] OJ L 327/1. 170 Ibid., Art. 11. 171 Guariso, Maione, and Volta, ‘A Decision Framework for Integrated Assessment Modelling of Air Quality at Regional and Local Scale’, at 7. 172 Baldwin et al., ‘Using the DPSIR Framework’, at 164. For a critique of existing DPSIR models see also B. Lange, I. Holman, and J. Bloomfield, ‘A Framework for a Joint Hydro-meteorological-social Analysis of Drought’ (2017) 578 Science of the Total Environment 297–306. 173 See e.g. Borja et al., ‘The European Water Framework Directive and the DPSIR’, at 94. Monteiro et al., ‘Natural and Human Controls of Water Quality of an Amazon Estuary’, at 50. 174 Ferreira et al., ‘Monitoring of Coastal and Transitional Waters’, at 203. 175 Winickoff et al., ‘Adjudicating the GM Food Wars’, at 105.

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38.4 Concluding Remarks This chapter has suggested that ‘command and control’ environmental legal standards have been and will be in future a core element of environmental regulation in a number of jurisdictions. But what contribution these standards will actually make to environmental protection also depends on whether their ‘conceptualization gap’ can be reduced. Applied science models, such as DPSIR do this to some extent, but will promote more ‘integrated’ pollution control standards if their key terms are defined with reference to linked natural and social dimensions of the environment, and if they include a range of spatial and temporal scales in their analysis. The chapter has further argued that DPSIR can provide some independent force for harmonizing ‘command and control’ standards across different jurisdictions. While science is clearly entangled with law176 and sometimes co-produced,177 it is an epistemological force in its own right, distinct from legal reasoning which can shape the setting and implementation of ‘command and control’ environmental legal standards across different jurisdictions. That distinct epistemological force of science is usually brought to the fore by distinguishing it from the different epistemological foundations of law, legal values, and principles178 which may even distort scientific knowledge179 or at least compete with it.180 In contrast to this, this chapter has taken a closer look at DPSIR, as an example of an applied science model, in order to probe the potential of sciences to render environmental legal standards more comparable, and potentially more alike across jurisdictions. The chapter suggested that the independent capacity of science to promote harmonization of standards may be qualified by the persistence of nationally distinct interpretations of the language of science. This theme may also be relevant in the context of other scientific models, such as those used for air quality modelling. In a recent English case the High Court referred to a ‘UK approach’ to air quality modelling.181 The scope of the data informing the modelling here—five yearly emission forecasts—was also shaped by cost considerations182 and contested assumptions about the level of nitrogen oxide emissions from diesel vehicles, despite the fact that there was panEuropean guidance available on this from the European Environment Agency (EEA).183 Finally, the chapter has backgrounded further analysis of the normative question to what extent we actually want to harmonize ‘command and control’ standards across different jurisdictions. Much may be said in favour of maintaining diversity in ‘command and control’ standards, also in order to retain opportunities to experiment with and test the e ffectiveness of different ‘command and control’ standards, as this occurs to some degree in the different US184 and Australian states.185 176 See the contribution of E. Fisher in this volume. 177 S. Jasanoff, States of Knowledge: The co-production of Science and the Social Order (London: Routledge, 2004). 178 D. Nelken, ‘Can Law Learn from Social Science?’ (2001) 35(2) Israel Law Review 213. 179 Ibid. 180 Ibid., at 216. 181 Client Earth (No. 2) and Secretary of State for the Environment, Food and Rural Affairs [2016] EWHC 2740 (Admin) 59. 182 Ibid., at 61. 183 Ibid., at 78, 81. 184 Winickoff et al., ‘Adjudicating the GM Food Wars’, at 122. 185 Murchison, ‘Environmental Law in Australia and the United States’, at 536.

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38.5 Acknowledgements The author gratefully acknowledges funding for some of the research discussed in this chapter by the UK government Natural Environment Research Council (NERC), grant no. NE/L010356/1.

38.6 Select Bibliography Aalders, M. and T. Wilthagen, ‘Moving Beyond Command and Control: Reflexivity in the Regulation of Occupational Safety and Health and the Environment’ (1997) 19 Law and Policy 415–43. Babich, A., ‘Too Much Science in Environmental Law’ (2003) 28 Columbia Journal of Environmental Law 119–84. Bell, S., D. McGillivray, O. W. Pedersen, E. Lees, and E. Stokes, ‘Environmental Permitting and Integrated Pollution Prevention and Control’ in Bell, McGillivray, Pedersen, Lees, and Stokes, Environmental Law (Oxford: Oxford University Press, 2017). Town, W. and J. N. Currano (eds.), Science and the Law (Oxford: Oxford University Press, 2015). Tscherning, K., K. Helming, B. Krippner, S. Sieber, and S. Gomez y Paloma, ‘Does Research Applying the DPSIR Framework Support Decision-making?’ (2012) 29 Land Use Policy 102–10.

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chapter 39

The Assessm en t of En v ironm en ta l Impact Neil Craik

39.1 Overview

876

39.2 The Origins and Role of Environmental Assessment

878

39.3 Elements of EIA Practice

883

39.4 Discussion: Convergence and Divergence

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39.5 Concluding Remarks

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39.6 Select Bibliography

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39.2.1 Domestic Origins and the Global Spread of Environmental Assessment878 39.2.2 Theory and the Role of Environmental Assessment 881 39.3.1 Application 39.3.2 Screening 39.3.3 Scoping 39.3.4 Participation 39.3.5 Decisions 39.3.6 Follow-up and Monitoring

883 885 887 890 892 894

39.1 Overview As a subject of comparative legal analysis, environmental assessment suffers from what might be termed an embarrassment of riches in that environmental assessment legislation is ubiquitous. Environmental assessment requirements for planned activities can be found in every region of the world, across vastly different political and economic systems and across all ranges of development levels. The near universality of environmental assessment

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the assessment of environmental impact 877 is a reflection of the common sense nature of environmental assessment: that decisions about activities that have some likelihood of adversely affecting the environment ought to be made in light of a comprehensive understanding of those impacts. Yet despite the fairly straightforward nature of environmental assessment, it has been both lauded as a significant legal innovation and criticized as inefficient and ineffective since its creation in 1970.1 In large part, the controversy surrounding environmental assessment relates to the way in which environmental assessment legislation privileges procedural obligations over substantive outcomes. Environmental assessment legislation does not contain specific environmental standards and it rarely requires decision-makers to avoid significant adverse environmental impacts, instead responsible authorities must adhere to strict procedural requirements respecting the assessment of impacts and requirements for disclosure and consultation in relation to the proposal and potential impacts. The underlying premise of environmental assessment is that requiring decisions to be made in an informed, open, and participatory setting will result in better environmental outcomes. The procedural orientation of environmental assessment has led to the development of a number of theoretical models that seek to explain how environmental assessment processes influence environmental outcomes. While these models are often viewed as competing explanatory frameworks, from a comparative standpoint they can provide insights into how environmental assessment may vary across different jurisdictions. For example, the theoretical models emphasize different elements of the environmental assessment process, such as expert evaluations, transparency, or principled justification, that are likely to vary in their compatibility with the decision-making settings in different countries or institutions. It follows that environmental assessment may differ not only in its structure between different countries and other implementing institutions, but also in its role within broader environmental decision-making processes. This chapter first discusses the origins of environmental assessment and the spread of environmental assessment across the globe before briefly outlining the contours of the different theoretical models that have been developed to explain the structure and role of environmental assessment as an institutionalized approach to environmental decisionmaking. As a policy instrument, environmental assessment processes take on a very similar generic form that consists of a similar set of elements or stages to the assessment. These elements form the basis of the comparative analysis of environmental assessment procedures that are described in the principal section of this chapter (section 39.3). Because environmental assessment attaches itself to decision-making, as opposed to a particular environmental issue or ecological component, environmental assessment has been adopted across a wide variety of decision-making bodies. Governments at multiple levels remain the principal source of environmental assessment legislation, but environmental assessment also plays a central role in international environmental treaties and a variety of i nternational institutions, such as the World Bank and the International Finance Corporation. In light of this diversity, this chapter does not confine itself to a comparison of national environmental impact assessment (EIA) instruments, but rather examines environmental assessment

1 R. Bartlett, ‘Impact Assessment as a Policy Strategy’ in R. Bartlett (ed.), Policy Through Impact Assessment: Institutionalized Analysis as a Policy Strategy (Westport, CT: Greenwood Press, 1986), 1, at 1; J. Sax, ‘The (Unhappy) Truth About NEPA’ (1973) 26 Oklahoma Law Review 239.

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878 neil craik instruments across a range of transnational sources. Section 39.4 of the chapter considers the way environmental assessment processes are differentiated and how the diverging approaches to environmental assessment may impact the degree or type of influence that assessment processes have on environmental outcomes. The term environmental assessment (EA) is often used interchangeably with the environmental impact assessment (EIA), but distinctions are often drawn between the assessment of physical projects conducted through EIAs and the assessment of higher order planning activities, such as policies, plans, and programmes, conducted through strategic environmental assessment (SEA). This chapter is framed to capture both forms of assessment, and uses the more general term EA, unless a reference is being made to a specific process.

39.2 The Origins and Role of Environmental Assessment 39.2.1 Domestic Origins and the Global Spread of Environmental Assessment The US federal National Environmental Policy Act (NEPA), signed into law in 1970, was a response to the failure of domestic agencies to account for the environmental consequences of their activities, which decisions makers saw falling outside their statutory mandate. NEPA addressed this gap by articulating a broad environmental policy objective that was intended to guide agency decisions. Thus, the first section of NEPA is a declaration that it is the policy of the federal government ‘to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans’.2 The policy objective itself is not elaborated on in any detail, but rather reflects a holistic and interconnected view of the environment. To realize this policy goal, the government was exhorted ‘to use all practicable means and measures’.3 There was, however, recognition that to implement such an openended policy some further ‘action forcing’ mechanism was required to project the environmental policy goals into specific decision-making processes.4 To this end, all federal agencies were required to prepare a ‘detailed statement’ that would accompany, and be considered alongside, recommendations of federal activities.5 This statement, which came to be known as an environmental impact statement, was required to contain information on the environmental impacts of the proposal, as well as an assessment of alternatives to the proposed action. The statement itself was intended to inform the exer2 National Environmental Policy Act (NEPA) 1970, 42 U.S.C. § 4321–75(c), at 4331. 3 NEPA, § 4321–75(c). 4 Quoting L. Caldwell, Hearings on S. 1075. S. 237 and S. 1752 before Senate Comm., On Interior and Insular Affairs, 91 Cong. 1st Sess. 116 (1969); see also NEPA Regulation 40 CFR § 1502.1 (using same language). 5 NEPA, § 4332(c).

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the assessment of environmental impact 879 cise of agency discretion, but not direct specific outcomes. There was some early debate and litigation that sought to give NEPA some substantive authority to require decision-makers to avoid harmful activities, but the procedural vision of NEPA prevailed and was elaborated upon through extensive judicial oversight,6 and through federal regulations.7 These instruments were further supplemented by a number of Executive Orders, guidance from the Council on Environmental Quality (an executive body also created under NEPA), as well as implementing regulations enacted by individual federal agencies. What started out as an ambiguous and largely symbolic requirement to account for environmental values in agency decisions, has evolved to become an elaborate and sophisticated procedural regime. The spread of EIA has been both horizontal and vertical. Following the United States, there were a small number of early adopters of national EIA policies in the 1970s, such as Canada, France, Australia, and New Zealand. At the same time, EIA was gaining recognition within a burgeoning system of international environmental law arising out of the 1972 Stockholm Conference. EIA itself was not included within the Stockholm Declaration due to concerns from developing countries over possible constraints on development activities, but was subsequently recognized as a constituent element of international environmental cooperation by the UN General Assembly.8 The United States played a leading role in promoting the export of EIA as a regulatory model, with US State Department officials being active in the development of the UNEP Draft Principles of Conduct,9 which called for the preparations of EIAs, as well as being early proponents of including EIA requirements in international treaty obligations.10 UNEP went on to adopt the UNEP Goals and Principles of Environmental Impact Assessment in 1987, which were intended to encourage the development of national laws on EA.11 In 1996, UNEP created an EIA training manual with the express purpose of facilitating the development of EIA legislation in countries in transition (in Central and Eastern Europe) and in developing countries and was an active evangelizer of EIA through the 1990s.12 The World Bank adopted EIA policies in 1989 that required assessments in connection with bank financed projects, which also contributed to the diffusion of EIA legislation in developing countries.13 In Europe, the European Community adopted its EIA Directive 6 The procedural tone was set early on in Calvert Cliffs’ Coordinating Committee Inc. v United States Atomic Energy Commission, 449 F.2d 1109 (D.C. Cir. 1971); see also R. Lazarus, ‘The National Environmental Policy Act in the U.S. Supreme Court: A Reappraisal and a Peek Behind the Curtains’ (2012) 100 Georgetown Law Review 1507. 7 NEPA Regulation § 1500–8. 8 ‘Co-operation between States in the Field of the Environment’, UNGA Resolution 2995 (XXVII), UN GAOR, 27th Sess., Supp. No. 30 (1972), at 42. 9 Principles on Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States, 17 ILM 1094 (1978), Principle 4. 10 See e.g. US Senate Resolution 49, 95th Congress, 2d Sess. (Congressional Record, v.124, No.111 (21 July 1978), p. S 11523–24, reprinted in 17 ILM 1082 (1978). 11 UNEP, Goal and Principles of Environmental Impact Assessment, UNEP Res. GC 14/25, 14 Sess. (1987). 12 UNEP, UNEP Environmental Impact Assessment Training Resource Manual (UNEP, Economics and Trade Branch, 2nd edn. 2002); A. Cherp and S. Golubeva, ‘Environmental Assessment in the Russian Federation: Evolution through Capacity Building’ (2004) 2 Impact Assessment and Project Appraisal 121, at 125 (crediting UNEP Manual with spreading EA practice in Eastern Europe). 13 World Bank, Operational Policies—Environmental Assessment, January 1999, OP 4.01.

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880 neil craik in 1985, which required Member States to enact implementing legislation consistent with the requirements of the Directive.14 Finally, throughout this period, multilateral environmental treaties were beginning to include EIA requirements in relation to transboundary harm and activities occurring in the global commons. For example, EIA commitments were the focus of the Espoo Convention on Environmental Impact Assessment in a Transboundary Context,15 and were included, inter alia, in the Convention on Biological Diversity,16 the United Nations Convention on the Law of the Sea,17 and the Protocol on Environmental Protection to the Antarctic Treaty.18 By 1992, EIA had become sufficiently embedded in domestic and international environmental policy structures that an EIA principle was included in the Rio Declaration,19 and was recognized as an emerging principle of international environmental law by the International Law Commission in 2001.20 EIA as a constituent element of a state’s customary duty to prevent transboundary harm was affirmed by the International Court of Justice (ICJ) in 2010.21 By 2016, EIA, as a national instrument, has been adopted by over 180 countries, including every major economy of the world, and without distinction to development level, or i nternal economic and political structures. Within federal states, EIA legislation has also been adopted by sub-federal governments and is also applied widely at the municipal level. While EIA has been predominantly attached to public decision-makers, the use of EIA with the international finance community, which began with the World Bank, has spread to the International Finance Corporation,22 as well as to private project financers through the Equator Principles, a voluntary environmental risk management framework with eighty-five member institutions, in which EIA figures prominently.23 Viewed comparatively, EIA has taken on a remarkably similar architecture regardless of the implementing institution. This architecture can be traced back to NEPA and consists of six distinct stages: 1) a screening process that determines which activities will be subject to an environment assessment; 2) a scoping process that identifies the specific environmental issues or concerns that will be included in the assessment, including determining the range of alternatives that will also be subject to assessment; 3) the preparation of the study itself; 4) consultation and participation with the public and other agencies; 5) the decision 14 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. 15 Convention on Environmental Impact Assessment in a Transboundary Context, 25 February 1991, 1989 U.N.T.S. 310 (Espoo Convention). 16 Convention on Biological Diversity, 5 June 1992, 31 ILM 818, Art. 14. 17 United Nations Convention on the Law of the Sea, 10 December 1982, 21 ILM 1261 (1982). 18 Protocol on Environmental Protection to the Antarctic Treaty, 4 October 1991, 30 ILM 1455 (1991). 19 United Nations Conference on Environment and Development, Rio Deceleration on Environment and Development, 14 June 1992, UN Doc. A/Conf.151/5/Rev.1, reprinted in 31 ILM 874 (1992). 20 International Law Commission, ‘Draft Articles on Prevention of Transboundary Harm from Hazardous Activities,’ in Report of the International Law Commission, Fifty-Third Session, UN GAOR, 56th Sess., Supp. No.10, UN Doc. A/56/10 (2001) 337, Art. 5. 21 Pulp Mills on the River Uruguay (Argentina v Uruguay), ICJ 20 April 2010, para. 205. 22 International Finance Corporation, ‘Performance Standards on Environmental and Social Sustainability’, January 1, 2012, PS 1. 23 The Equator Principles, Principle 2, June 2013 (Version III), available at: http://www.equator- principles.com/.

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the assessment of environmental impact 881 respecting the activity under assessment; and 6) follow-up measures that may be required, such as monitoring of effects, after the project has been constructed. The major exception to this development is the system of ‘state environmental review’ and environmental impact assessment (SER/OVOS—using the Russian acronym) that has developed in Russia and countries influenced by Soviet approaches to regulation. As the names suggests, the SER/OVOS system consists of two distinct but related processes, a proponent driven EIA (the OVOS) that is then fed into a separate state evaluation process (the SER), which is oriented towards ensuring compliance with existing policy and plans. The process is much more expert driven, as there was an existing system and culture of expert driven reviews that arose out the technocratic and centralized approach to planning in the Soviet era.24 To some degree, aspects of the OVOS map onto the stages of EIA, but in practice the implementation is quite different since the OVOS is fed into a separate, compliance driven process, as opposed to a more open-ended consideration of the desirability of the project.25

39.2.2 Theory and the Role of Environmental Assessment EIA, as a regulatory instrument, operates in a very different way than traditional command and control approaches to environmental regulation. At the heart of this difference is that the environmental goals to which EIA is directed are identified in broad, almost a spirational terms, and are not given substantive force in the sense that decision-makers are bound to avoid decisions that are inconsistent with those objectives. Nevertheless, EIA is clearly and explicitly intended to achieve environmentally positive outcomes. The means to realize these objectives are largely self-regulatory and underlain by an assumption that adherence to procedural requirements respecting assessment and consultation will push decisionmakers towards better outcomes. The theories concerning by what mechanisms and under what circumstances EIA processes influence outcomes identify three principal explanatory models for understanding how this arises.26 The first approach is associated with the comprehensive rationality model of administrative decision-making whereby the decisions respecting planned activities are viewed as expert driven exercises that are most appropriately addressed by systematic and comprehensive scientific and technical analysis. This approach proceeds from a premise that experts and public officials are able to accurately predict environmental outcomes and avoid or mitigate unacceptable impacts in the public interest. Here the expectation is that decision-makers, once they are made aware of negative outcomes, will seek to avoid or mitigate those impacts. This model views the environmental goals that underlie EIA as being uncontested, and that trade-offs between environmental and development goals can be o bjectively determined. One would expect transparency and participation to play peripheral roles 24 A. Cherp and S. Golubeva, ‘Environmental Assessment in the Russian Federation: Evolution through Capacity Building’ (2004) 2 Impact Assessment and Project Appraisal 121, at 122. 25 World Bank, ‘How Well is Environmental Assessment Working in Russia: A Pilot Study to Assess the Capacity of Russia’s System’ (Washington D.C.: World Bank: 2003). 26 J. Holder, Environmental Assessment: The Regulation of Decision Making (Oxford: Oxford University Press, 2004); see also R. V. Bartlett and P. A. Kurian, ‘The Theory of Environmental Impact Assessment: Implicit Models of Policy Making’ (1999) 27 Policy and Politics 415.

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882 neil craik under this model since the model relies chiefly on (neutral) expert determinations to legitimize decisions. A second, more pluralistic, approach accepts that EIA processes must necessarily mediate between competing sets of interests that are not easily reconcilable.27 This model rejects a unitary and easily determined public interest. Under this model, it is assumed that agencies will pursue their own agenda and interests, and the public interest is at best an aggregation of divergent interests and values. EIA processes structure bargaining between proponents, affected stakeholders, and responsible authorities by altering the relative power of the participants. Access to environmental information and the availability of participatory mechanisms, including the possibility of judicial review, enable outside groups to exert greater pressure on decision-makers and proponents. Decisions are still strongly grounded in technical assessment, but the goal of the process is not to produce optimal outcomes, but rather to produce outcomes that are responsive to competing preferences both within and outside responsible authorities. The substantive goals of EIA are under this model largely symbolic. They may be used strategically to promote a particular outcome, but the outcomes themselves are driven by political calculations. Nevertheless, improved e nvironmental decisions arise through EIA because the process empowers interests inside and outside agencies that can push decision-makers towards decisions that are more consonant with environmental goals. A final approach is rooted in insights on the power of institutions, including norms, to transform the interests of participants through principled interactions and social learning. A transformative understanding of EIA views the role of EIA as developing and inculcating shared values around environmental decisions. The emphasis is on deliberation and justification of decisions in light of shared values. Where pluralistic models see the interests of participants as fixed, transformational models view interests as capable of change. Seen in this light, the goal of NEPA was to take agencies, whose mandates made them ambivalent, even hostile, to environmental considerations, and have them see protection of the environment as compatible and conducive to achieving their goals. Within this process, information still plays a powerful role, as it improves the deliberative quality of the policy process. The substantive goals that underlie EIA are understood to be more than symbolic and of instrumental value, since the participants are required to justify their positions considering the available information, public comments and the environmental objectives of EIA. It is through deliberation that participants may come to reconsider their interests in light of both factual and normative information. In this regard, NEPA has been described as a form of bureaucratic ‘cognitive reform’, in the sense that the intent is to align agency objectives with environmental values.28 While these models are often presented as alternative explanations, the pathway by which EIA influences (or fails to influence) outcomes will be affected by the degree to which certain elements of the EIA process are present or implemented within the design of various EIA structures. For example, the degree of transparency within EIA processes will impact the ability of EIA processes to be an effective tool for political mobilization. Similarly, social 27 S. Taylor, Making Bureaucracies Think: The Environmental Impact Statement Strategy of Administrative Reform (Palo Alto C.A.: Stanford University Press, 1984). 28 J. Boggs, ‘Procedural v. Substantive in NEPA Law: Cutting the Gordian Knot’ (1993) 15 The Environmental Professional 25.

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the assessment of environmental impact 883 learning, which relies on a discursive and justificatory interactions among participants, may be affected by the degree to which justification is required and the presence of shared values to root justification in a common goal. Looking at EIA comparatively, one might expect to see considerable differentiation between how EIA processes operate in open versus more closed political contexts. The institutional demands of EA are high since they require access to expertise and institutional infrastructure to support transparency, participation, and access to justice, which varies considerably across countries. As noted, the manner and extent to which these explanatory models are translated in EIA policy finds two principal expressions globally: the NEPA approach and the SER/OVOS approach, which reflect their different policy development pathways. However, there is considerable diversity within this range that is reflective of the political and institutional settings in which the specific EIA policy is situated. There are also more globalized trends, both bio-physical, such as climate change and rapid biodiversity loss, and normative, such as evolving human rights expectations surrounding openness and participation in environmental decision-making, which are creating evolutionary pressures on EIA policies.29

39.3 Elements of EIA Practice 39.3.1 Application Because EA is primarily directed towards the regulation of public decision-making, the main trigger for conducting an EA is some connection to the government. Typically, this connection is the granting of an approval or permit that facilitates an activity, but it could also involve cases where the government is the proponent itself or the project requires government funds or government land.30 In federal states, tying EA to federal approvals may result in some gaps in coverage where projects that one might expect to be addressed through EA only require sub-national approvals. The comprehensiveness of the coverage in these circumstances depends on the presence of sub-national EA systems, which varies across jurisdictions.31 The approach in Australia is to identify a number of matters of national environmental significance, which include world heritage properties, national heritage places, wetlands of international importance, nationally threatened species and ecological communities, Commonwealth marine areas, including the Great Barrier Reef Marine Park, and nuclear actions.32 The Environmental Protection and Biodiversity Act 1999 requires that no activities which are likely to have a significant impact of these matters may be undertaken without prior approval. The EA process attaches to the issuance of prior approval. 29 F. Retief et al., ‘Global Megatrends and their Implications for Environmental Assessment Practice’ (2016) 61 EIA Review 52. 30 Canadian Environmental Assessment Act, S.C. 2012, c. 19, s. 52 (CEAA). 31 e.g. in Canada all the provinces have EA legislation, while in the United States many states do not require EAs. 32 Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss. 12–25 (EPBC).

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884 neil craik Many planned activities may require both federal and sub-federal approval, with the result that projects may be subject to EA processes at multiple levels, causing concerns over inefficiency and overlap. In these cases, the governments have sought to address overlapping application of EA requirements through coordination agreements that provide for the processes at one level to satisfy the EA requirements at the other level. EA is most frequently used in connection with planned, physical undertakings, but it is also common for EA to apply to a wider set of decisions that relate to policies, plans, and programmes (referred to as strategic environmental assessment or SEA). Under NEPA, the requirement to prepare an environmental impact statement applies to ‘proposals for legislation and other major Federal actions’,33 with the latter term being defined to include policies, plans, programmes, and projects.34 The approach under NEPA does not draw a hard distinction between project and non-project-based EA and does not use the term strategic environmental assessment. Instead, a common set of requirements apply to both forms of assessment, but leaving implementing agencies with considerable discretion in implementing the requirements. The reference in NEPA to legislative EIAs has been largely unimplemented, and reflects the intention to constrain administrative, as opposed to political, decision-making. Functionally, the assessment of policies, plans, and programmes facilitates the goal of assessment occurring early in the planning process since policy planning often precedes project decisions. The concern with leaving assessment entirely to the project stage is that crucial questions respecting the need for the project are often set by policy decisions, leaving the consideration of need and alternatives constrained if left to the project stage. The often-sequential relationship between policy planning and project planning has led to a practice of ‘tiered’ assessments, whereby project assessments are considered in light of the findings of the programmatic assessment.35 SEA, because it often operates on a broader geographic scale, offers some potential to address cumulative impacts, by providing a framework that allows for greater integration of activities that might otherwise be assessed individually and without regard for one another. The adoption of SEA has been less universal, but assessment processes in many jurisdictions have included policies, plans, and programmes. In Canada, the approach has been to encourage responsible authorities to engage in higher order assessments, but not to legislate those requirements. As a result, the Canadian Environmental Assessment Act focuses on project assessment, while a separate Cabinet Directive on Environmental Assessment of Policy, Plans and Programme Proposals was developed. The effect is to make SEA a voluntary process (it is described as a guideline) with uneven application.36 A more elaborate system of SEA is found in the European Community, which adopted a separate SEA Directive in 2001.37 The SEA Directive, which is required to be transposed in all Member States, requires SEAs for plans and programmes (prepared by governmental authorities) in identified sectors (agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning, or land use), which set the framework for projects identified in the EIA Directive as requiring 33 NEPA, § 4332(c). 34 NEPA Regulation § 1508.18. 35 NEPA Regulation § 1508.28. 36 Privy Council Office, Government of Canada, The Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals (CEAA, 2010). 37 Directive 2001/42/EC, OJ L 197, 21/07/2001.

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the assessment of environmental impact 885 project EA.38 By linking mandatory SEA requirements to project assessment, the structure adopts a tiered approach to assessment, but limits SEA to those plans and programmes that have direct influence over project approval conditions. The process for SEA is structured in very similar terms to the generic EA process, and centres on the identification of significant environmental impacts from the implementation of the plan or programme. The assessment report is subject to public consultation and must be accounted for in the decisionmaking process respecting the plan or programme.39 China has included mandatory provisions for what it refers to as ‘Plan EIA’, which is intended to supplement its project-based EIA requirements. Like NEPA, the approach is to treat SEA in an undifferentiated manner, and simply extend the EIA requirements to include certain plans and programmes. The treatment of plans and programmes is similar in the Russian SER/OVOS system, but there is little guidance as to how strategic level EA is to be implemented. Outside national EA systems, SEA is part of the World Bank’s system of EA, and is also the subject of an international treaty, the Kiev Protocol on Strategic Environmental Assessment, although the membership of the protocol is restricted to European states that are already subject to the SEA Directive, so it has not significantly increased the uptake of SEA. An increasingly common variation of SEA is the environmental assessment of trade agreements, which has been used extensively in Canada, the United States, and the EU as a precondition to entering into new trade arrangements with other countries or regions.40 Finally, there is a range of other assessment tools that address a broader range of social and health impacts, such as human rights impact assessment, gender impact assessment, and cultural impact assessment. Unsurprisingly, given the integrative goals of sustainability, there have also been attempts to create sustainability assessment tools that identify sustainability criteria, such as net benefits.41 However, it relation to the latter, despite recognition of sustainability as an important goal for EA, there has been minimal legislative take-up of a sustainability standard for EA.

39.3.2 Screening Once a determination of the kinds of activities that might be subject to EA is made, there remains a question of how to differentiate those activities that ought to be subject to detailed assessment and those that pose lower environmental risks. There are two main approaches to addressing this question. The first is exemplified by the initial environmental assessment process under NEPA. Where a proposed activity falls under the broad umbrella of being a ‘major federal action’, an initial assessment of whether the proposed action is likely to have a significant impact is undertaken.42 In the event the initial environmental assessment determines that the activity does meet the threshold of significance, the lead agency must prepare a full environmental impact statement. Where the activity does not exceed the 38 Ibid., Art. 3(2)(a). 39 Ibid., Arts. 6, 8. 40 See e.g. European Commission, Handbook for Trade Sustainability Impact Assessment (Publications Office of the European Union, 2nd edn. 2016); see also Government of Canada, ‘Framework for Conducting Environmental Assessments of Trade Negotiations’ (Government of Canada, February 2001). 41 R. Gibson, ‘Sustainability Assessment: Basic Components of a Practical Approach’ (2006) 24(3) Impact Assessment and Project Appraisal 170. 42 NEPA § 4332 (C).

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886 neil craik threshold, the agency prepares a ‘finding of no significant impact’, which summarizes the initial environmental assessment and places the decision on the public record.43 The vast majority of assessments done under NEPA end with a finding of no significant impact. One study, prepared by the Council on Environmental Quality, estimated that over 50,000 initial environmental assessments were conducted, with about 500 of those resulting in full environmental impact statements being prepared.44 The second approach is to use lists of project categories as the basis for predetermining whether a project requires a full EA. The categories represent types of activities (i.e. refineries, power stations, ports) that are likely to result in significant impacts, and often include quantitative limits, such as transmission lines greater than 15 kilometres or petroleum extraction facilities that exceed 500 tonnes/day.45 Under this approach, which is used in the EU, China, and Mexico, among other places, the threshold of likely significant impact is notionally maintained as the basis for preparing the EA, but significance is presumed. The major advantage of using lists is that there is much greater certainty and objectivity in determining in advance which projects are subject to EAs. The threshold of ‘likely significant impact’, which is almost universally used, is notoriously hard to define, whether at the screening stage or as the basis for assessment under a full EA. The disadvantage of using lists is that the resulting screening processes leads to a binary result, either a project is listed and subject to assessment or it is not, which is ill-suited to the complexities of the potential range of activities. In practice, the use of initial environmental assessments has been a more flexible tool, in part because a finding of no significant impact is made after considering mitigation measures. As a result, proponents are provided with incentives and opportunities to justify less impactful design and operational measures to reduce the expected impact below the threshold for a full EA.46 In other systems, the screening process provides for a variety of assessment pathways or streams that may differ in the degree of detail and amount of public scrutiny a project receives. In Australia, the federal EA process includes five different approaches for assessment. The type of assessment is determined by the Minister in light of preliminary information provided and is driven by the complexity and risk, as well as degree of public consultation thought to be required in the circumstances.47 The World Bank and IMF use three levels of project categorization, differentiating projects by scale, but also looking at project location and other impact related criteria, although this categorization is done without the benefit of a formal initial EA.48 In practice, many EIA systems use a mixed approach of lists and initial assessments. In the EU, there are two classes of activities, one that automatically requires a full EA, and another set that provides for an EA if the listed activity also meets the significance threshold. In China, the approach involves three levels of categorization, those activities that are presumed to have significant impacts and require an environmental impact report, those that are presumed to have ‘slight’ environmental impacts and require a less onerous environmental 43 NEPA Regulation § 1508.13. 44 Council of Environmental Quality, The National Environmental Policy Act: A Study of its Effectiveness after Twenty-five Years (CEQ, 1997), 19; see also B. Karkkainen, ‘Toward a Smarter NEPA: Monitoring and Managing Government’s Environmental Performance’ (2002) 102 Columbia Law Review 903. 45 See e.g. EU EIA Directive, Annex 1. 46 Karkkainen, ‘Toward a Smarter NEPA’, at 932–5. 47 EPBC (Australia), s. 85. 48 World Bank, Operational Policies—Environmental Assessment, January 1999 OP 4.01, para. 2.

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the assessment of environmental impact 887 impact form to be prepared, and those that are presumed to have ‘very small’ environmental impacts and require no further submission.49 Even NEPA augments its system of initial EA with lists of ‘categorical exemptions’ that do not require any type of assessment on the basis of their presumed lack of impact.50 There is one notable exception to the use of ‘likely significant impact’ as the threshold for conducting an EA. Under the Antarctic Protocol, which applies to almost all physical activities that occur in the region, an initial environmental evaluation is conducted to determine whether a project will have ‘more than a minor or transitory impact’, in which case a comprehensive environmental evaluation is required.51 The use of the term ‘more than minor or transitory’ was not intended to signal a lower threshold, but was thought to be more precise, although no agreement on how to interpret this term has been arrived at and the process unfolds on a case-by-case basis.52

39.3.3 Scoping Once a decision has been made to conduct an environmental assessment, the proponent and responsible authority must determine the scope of the study. All EA legislation provides a broad indication of the contents of an EIA study, which typically include: (a) a description of the project comprising information on the site, design, size, and other relevant features of the project; (b) a description of the likely significant effects of the project on the environment; (c) a description of the features of the project and/or measures envisaged in order to avoid, prevent, or reduce and, if possible, offset likely significant adverse effects on the environment; (d) a description of the reasonable alternatives studied by the developer, which are relevant to the project and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the project on the environment; (e) a non-technical summary of the information referred to in points (a) to (d).53 Given the potential breadth of these requirements, scoping provides a means to ensure that the EA is responsive to the decision being made and to the issues that are of concern. The basic principle around scoping is captured in Principle 5 of the UNEP EIA Principles which states that ‘the environmental effects in an EIA should be assessed with a degree of detail commensurate with their likely environmental significance’. This common sense requirement is a reflection of the ‘rule of reason’ requirements identified by the judiciary under NEPA.54 49 Article 16 Environmental Impact Assessment Law of the People’s Republic of China (2003). 50 NEPA Regulation § 1501.5; 1508.4. 51 Articles 2, 3, 8(1) Antarctic Protocol, Annex 1. 52 Guidelines for Incorporating Environmental Impact Assessment in Antarctica, adopted by Resolution 4 (2005), attached to the Final Report of XXVIIIth ATCM, (2005), s. 3.3.4. 53 Article 5 EU EIA Directive; see also UNEP EIA Goals and Principles, Principle 4. 54 See e.g. Marsh v Oregon Natural Resources Council, 490 US 360 (1988), and Natural Resources Defense Council Inc. v Hodel, 865 F 2d 288 at 294 (DC Cir. 1988).

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888 neil craik While seemingly straightforward, proponents often try to scope projects in such a way that restricts the application of EIA to a portion of the project. Viewing the project narrowly and in isolation restricts the breadth of assessment and may avoid or limit public scrutiny. Under US law, the courts have developed an ‘independent utility’ test, whereby an activity would only be assessed separately from a larger planned activity where the narrower action had independent utility.55 The application test has been argued in Canada, but was rejected based on the wording of the Canadian Environmental Assessment Act, which provides broad discretion to responsible authorities in scoping projects. The result in Canada has been attempts by officials to consider bridges required for a road construction project, but not the road itself,56 a decision to consider the destruction of watercourse required to construct an oil sands project separately from the mining project,57 and a decision to scope a tailings pond separately from an associated mine.58 The narrow scoping of projects becomes particularly important under EIA systems that use thresholds for determining the level of assessment that is requirement. Thus, the concern in the latter Canadian case was that the scoping of the project as just a tailings pond avoided a more onerous form of assessment. Courts in other jurisdictions have sought to avoid this narrowing of assessment obligations by insisting that functionally connected projects be considered as a single unit.59 A second area where scoping decisions have generated concerns is in relation to the requirement to consider alternatives. Alternatives have been described as the ‘heart of the environmental impact statement’.60 Assessment of alternatives presents decision-makers and the public with clearer options between forms and types of development. Because EA processes rarely invoke precise substantive standards to assess the acceptability of outcomes, alternatives provide a basis for evaluation and to better understand the trade-offs between environmental, social and economic goals. Despite the centrality of alternatives assessment, the requirement for alternatives varies across systems. In some jurisdictions, such as China and Russia, the use of alternatives is quite restricted.61 For example, under the SER/OVOS system, the process is oriented towards expert identification of ecological consequences and compliance with state environmental requirements, as opposed to identifying development pathways. As with scoping generally, how the alternatives are framed has important implications for the efficacy of EIA practices.62 The NEPA Regulation provides considerable direction to agencies on the requirements to look at alternatives, which include an evaluation of ‘all reasonable alternatives’, including ‘alternatives not within the jurisdiction of the lead agency’

55 Earth Island Institute v U.S. Forest Service, 351 F.3d 1291, 1305 (9th Cir. 2003). 56 Friends of the West Country Assn. v Canada (Minister of Fisheries and Oceans), [2000] 2 F.C. 263 (C.A.). 57 Prairie Acid Rain Coalition v Canada (Minister of Fisheries and Oceans), 2006 FCA 31. 58 MiningWatch Canada v Canada (Minister of Fisheries and Oceans), 2010 SCC 2. 59 R (Burridge) v Breckland District Council and Greenshoots Energy Ltd [2013] EWCA Civ 228. 60 NEPA Regulation § 1502.14. 61 Article 10 EIA Law China (2003); World Bank, ‘How Well is Environmental Assessment Working in Russia’, at 29; see also A. Cherp, ‘Environmental Assessment in Countries in Transition: Evolution in a Changing Context’ (2001) 62 Journal of Environmental Management 357. 62 Calvert Cliffs’ Coordinating Committee Inc. v United States Atomic Energy Commission, 449 F 2d 1109, at 1128.

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the assessment of environmental impact 889 and the ‘no action’ alternative.63 The no action alternative provides a baseline case for comparison with the proposed activity. There are obvious limitations to the number and scope of alternatives that can be evaluated, and here too the courts have indicated that a ‘rule of reason’ should govern.64 Under an earlier version of the Canadian Environmental Assessment Act, a distinction is drawn between ‘alternatives to’ a project and ‘alternative means of carrying out the project’.65 The former are functionally different ways to fulfill the project need. For example, an alternative to a thermal power generating station may be greater energy conservation or renewable energy. An alternative means is a narrower approach that focuses on technically and economically feasible ways of implementing the proposal, such as alternative locations or routes, or fuel sources.66 The requirement to consider alternatives remains unevenly implemented; a fact that perhaps explains why the requirement for alternatives is permissive not mandatory in international law.67 Cumulative impacts, which are defined as the ‘incremental impact of the action when added to other past, present, and reasonably foreseeable future actions’,68 are required to be assessed in systems, such as Canada, the EU, the United States, and South Africa, but this inclusion is far from uniform. Cumulative impact assessment raises some distinct issues respecting how to establish spatial and temporal boundaries for assessments, particularly where ecological connectivity is high. The question of cumulative impact has been a challenge in relation to assessing biodiversity impacts and climate change impacts from specific projects, leading a number of jurisdictions and international bodies to issue specific guidance on how to best incorporate these issues into EIA.69 The greater prominence of biodiversity and climate change within EA frameworks has led to the consideration of offsets as a possible alternative and mitigation response.70 Because the use of offsets involves regaining lost ecological functions at locations that may be removed from the project site, offsets raise distributive issues that are novel to EA processes. Climate considerations may pose particular difficulties in the context of EA given the global nature of the problem. For example, courts and regulators have struggled with applying the concept of ‘significant harm’ to GHG emissions, since no one project is likely to have a measurable impact on climate outcomes, yet each project contributes to the problem.71 One approach has been the identification of GHG emission thresholds that 63 NEPA Regulation § 1502.14. 64 Airport Neighbors Alliance, Inc. v United States, 90 F.3d 426 (10th Cir. 1996). 65 CEAA, S.C. 1992, c.37, s. 16 (obligation to consider broader ‘alternatives to’ removed by CEAA 2012). 66 See also Environmental Impact Assessment Regulations, 2014, No. R. 982 (South Africa), s. 1. 67 Espoo Convention, Appendix II (requiring an evaluation of alternatives ‘where appropriate’). 68 NEPA Regulation § 1508.7. 69 CBD Decision VIII/28 Annex, Impact Assessment: Voluntary guidelines on biodiversity-inclusive impact assessment; European Commission, Guidance on Integrating Climate Change and Biodiversity into Environmental Impact Assessment (European Union, 2013); Council on Environmental Quality, Incorporating Biodiversity Considerations into Environmental Impact Analysis under the National Environmental Policy Act (CEQ, 1993); Council on Environmental Quality, Revised Draft Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in NEPA Reviews (CEQ, 2014); Canadian Environmental Assessment Agency, Guide on Biodiversity and Environmental Assessment (CEAA, 1996); Netherlands Commission for Environmental Assessment, Recommendations on Climate Change in Environmental Assessment (NCEA, 2009). 70 Article 5 EU EIA Directive. 71 Pembina Institute for Appropriate Development v Canada [2008] F.C. 302 (F.C.T.D).

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890 neil craik require a consideration of alternative measures that would reduce GHG emissions, but these vary considerably.72 As a final matter, the scope of effects considered is predominantly environmental, but the approach has been to take a broad understanding of what constitutes an environmental impact. NEPA defines ‘effects’ to include ‘ecological (such as the effects on natural resources and on the components, structures, and functioning of affected ecosystems), aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative’.73 The EU Directive similarly includes effects on ‘population and human health’, as well as ‘material assets, cultural heritage and the landscape’.74

39.3.4 Participation While all EA systems recognize public participation as an integral part of EA, there is wide variation in how opportunities for participation are implemented. The degree and effectiveness of participation is influenced by the broader culture of openness with which administrative decisions are made in the country in question. Public participation in EA has been strongly influenced by US practices under NEPA that provide for extensive opportunities for participation at most stages in the EA process. Under NEPA, there are opportunities for public notice and comment at the screening and scoping stage, in addition to providing for circulation of, and comment on, a draft environmental impact statement, in the case of a full EIA. For screening, the extent of consultation is generally limited to notice of the decision once it is made, although there is a comment period for novel findings.75 Considering the importance of the scoping stage to shape the EA and outcomes, public participation at this stage signals a strong commitment to public influence and legitimation.76 A central concern with project decision-making is the potential for regulatory capture, whereby e nvironmental concerns are subordinated in favour of the development goals of proponents. Participation, particularly at early stages, provides a counter-balance to industry influence within agencies. In addition to the general public, NEPA requires wide circulation of documentation to other interested agencies at federal, state, and local levels. Under NEPA and the EU EIA Directive, the public is defined very broadly, and includes both those persons who are affected or are likely to be affected by the project, as well as those having an ‘interest’ in the project.77 The rights of NGOs are specifically recognized and protected.78 Canada, on the other hand, has moved to confine consultation obligations to those persons who are ‘directly affected’, which is a much narrower formulation.79 In countries such as China and Russia, which have a limited history of environmental participation, the opportunities for participation are more constrained. The Russian SER/ OVOS system has provision for consultation during the preparation of the OVOS and a 72 e.g. the CEQ indicates that a project with 25,000 tonnes CO2e/year should require consideration of alternatives, while California uses 10,000 tonnes CO2e/year, and the Equator Principles uses a threshold of 100,000 tonnes CO2e. 73 NEPA Regulation § 1508.8. 74 Article 3 EU EIA Directive. 75 NEPA Regulation § 1501.4(2). 76 NEPA Regulation § 1501.7; see also § 1506.6(b). 77 Article 1(2)(e) EU EIA Directive; see also NEPA Regulation § 1503.1(a)(4). 78 Article 1(2)(e) EU EIA Directive. 79 CEAA, s. 2.

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the assessment of environmental impact 891 distinct ‘public environmental review’ process, which provides an avenue for public input. But the requirements are vague and unevenly implemented.80 China’s EIA laws also contain ambiguous encouragement of public participation ‘through appropriate means’.81 However, participation is only mandated in a very small number of cases. In 2006, China released a more detailed draft of ‘Interim Measures for Public Participation in Environmental Impact Assessment’ that elaborates on procedures for disclosure and participation, and a further ordinance was promulgated in 2009,82 which resulted in growth of participation, although implementation concerns remain.83 China presents an interesting case, in that the regulatory direction around public participation has been steadily improving, but other structural factors such as education and literacy levels, as well as an absence of a culture of participation, affect participation levels. Participation in China is directed at those persons that are directly affected.84 The modalities of participation associated with EA processes vary from mere notice, to opportunities for comment, to public hearings. The extent of participation tends to reflect the greater potential for significant adverse effects.85 Thus, under NEPA, screening decisions are disclosed, but only provide minimum opportunities for prior comment. In Canada, the option for a full hearing, generally a rarity in relation to EA, is triggered by a political assessment of whether a review panel hearing is in the ‘public interest’. This in turn requires the Minister to consider the likelihood of significant adverse effects and the degree of public concern.86 The use of review panels or inquiries are not delegations of decisionmaking powers to administrative bodies, but rather provide a more formal opportunity for the presentation of evidence, including the environmental impact study, before a neutral body by all parties in respect of a project. The panel or inquiry prepares a report, but does not determine the outcome of the matter. Instead, the panel makes recommendations to the decision-maker based on their findings.87 Intervener funding is made available to participants in some schemes, which will increase the capacity to engage in the process. An emerging issue is the framing of participation in EA processes as a human rights issue, often in support of realizing an underlining substantive right to environmental wellbeing. In Europe, a rights-based approach has been strongly influenced by the Aarhus Convention on Access to Information, Public Participation in Decision making and Access to Justice in Environmental Matters.88 This UNECE treaty, which is intended to implement Principle 10 of the Rio Declaration, sets minimum standards for access to information and participation in environmental matters. Like the Espoo Convention (on transboundary 80 World Bank, ‘How Well is Environmental Assessment Working in Russia’; S. Solodyankina and J. Koeppel, ‘The Environmental Impact Assessment Process for Oil and Gas Extraction Projects in the Russian Federation: Possibilities for Improvement’ (2009) 27 Impact Assessment and Project Appraisal 77. 81 Article 5 EIA Law China. 82 The Regulation of Planning Environmental Impact Assessment (China), 2009. 83 Y. Zhao, ‘Assessing the Environmental Impact of Projects: A Critique of the EIA Legal Regime in China’ (2009) 49 Natural Resources Journal 485; see also C. Chi, J. Xu, and L. Xue, ‘Public Participation in Environmental Impact Assessment for Public Projects: A Case of Non-participation’ (2013) 57(9) Journal of Environmental Planning and Management 1422. 84 W. YaNan, ‘Public Participation in EIA, SEA and Environmental Planning (China)’, EU-China Environmental Governance Program Policy Studies, Study No. 3 (2012). 85 This is especially evident in Australia. 86 CEAA, s. 38(2). 87 CEAA, s. 43(1). 88 Aarhus Convention on Access to Information, Public Participation in Decision making and Access to Justice in Environmental Matters (‘Aarhus Convention’), 25 June 1998, 38 ILM 517, in force 30 October 2001.

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892 neil craik EIA), the Aarhus Convention identifies a list of planned activities to which these obligations apply.89 The structure is such that any major planned activity will likely be subject to these obligations. While requirements for participation mirror those found in EIA legislation, their inclusion in the Aarhus Convention removes much of the discretion that public agencies exercise in relation to participation by identifying clear minimum standards.90 The Aarhus Convention also applies to SEA processes as well.91 The European Court of Human Rights (ECtHR) has similarly linked rights of participation in environmental decisionmaking to substantive human rights.92 Beyond Europe, the Inter-American Court of Human Rights has indicated that indigenous groups have rights to prior assessment and consultation where development proposals would have significant impacts within their traditional territory; linking the right to an assessment to the property rights protected under Inter-American human rights law.93 The link between indigenous rights, particularly, the right to ‘free, prior and informed consent’ under the United Nations Declaration of the Rights of Indigenous Peoples, and EA processes has been recognized under the Convention on Biological Diversity through the Akwé: Kon Voluntary Guidelines on Environmental and Socio-cultural Assessment,94 as well as by the Special Rapporteur on the rights of indigenous people.95 While relying on constitutional protections of indigenous people, not international human rights law, Canadian law-makers have come to view EIA processes as one of the major avenues by which the duty to consult and accommodate indigenous people will be implemented.96

39.3.5 Decisions As noted at the outset, the fundamental structure of EA processes is that they inform decisions respecting planned activities, but they are not determinative of those decisions. Thus, even where an EA discloses that the activity would have a significant environmental impact, the government retains the discretion to approve the project. This structure goes back to the purpose of EA under NEPA, which was to ensure that environmental considerations, which had been previously ignored or believed to be outside the lawful mandate of the decisionmaker, were incorporated into decisions. The difficulty that this structure entails is in ensuring that the decision-makers are not just paying lip service to the EA, but treating the EA 89 Ibid., Annex. 90 Ibid., Art. 6. 91 Ibid., Art. 7. 92 Taskin and Others v Turkey [2004] ECHR 621. 93 Saramaka People v Suriname, Series. C No. 172 Inter-Am. Ct. H.R. (2007), para. 129. See also Advisory Opinion OC-23/17 Requested by the Republic of Columbia, Inter-Am. Ct. H.R., 15 November 2017. 94 Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities, CBD Decision VII/16C (2004) Annex. 95 J. Anaya, ‘Report of the Special Rapporteur on the Rights of Indigenous Peoples’, Human Rights Council (A/HRC/21/47), available at: http://unsr.jamesanaya.org/docs/annual/2013-hrc-annual-reporten.pdf (2012, 17, para. 65). 96 Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74; see also Government of Canada, Aboriginal Consultation and Accommodation: Updated Guidelines for Federal Officials to Fulfill the Duty to Consult (March 2011).

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the assessment of environmental impact 893 study and the comments received seriously. This is achieved partially through participation, but also by requiring decision-makers to provide written reasons for their decisions. In the United States, courts have imposed an obligation of good faith or genuineness on agency decision-makers referred to in the NEPA jurisprudence as the ‘hard look doctrine’.97 This is a justificatory requirement that is part of US administrative law generally. The reviewing court will assess whether ‘the agency has given reasoned consideration to all material facts and issues’ and has set out ‘with reasonable clarity its reasons for decision’.98 The decision must also be responsive to the comments provided by other agencies and the public. Accountability is achieved through reasoned justification. In other jurisdictions, such as China, there is no obligation for the decision-makers to justify their decisions. Rather the inputs, which include the EA study and results from the consultation process are required to be considered by the approval authority,99 but the decision-making process is a black box, with little opportunity for review. In Russia, assessments have been more critical, with the World Bank concluding that the EIA process has limited impact on actual project decision-making.100 To a significant degree, the difficulty with SER/OVOS systems is structural. The OVOS (EA) is not the basis for a reasoned consideration of the desirability of a project, but rather gets cast into the SER process, which is largely concerned with compliance with other substantive requirements. At best, it functions in aid of environmental compliance, but it appears to be viewed as a formality.101 In Canada, accountability for potential environmentally harmful decisions is achieved through elevation of the decision into the political realm. Under the Canadian Environmental Assessment Act, where a decision-maker has determined that a project is likely to cause significance adverse environmental effects the decision must be referred to the federal cabinet for a decision on whether those effects are ‘justified in the circumstances’.102 The scheme allows for projects with significant adverse effects to go ahead, but places the responsibility for that decision in a more visible and politically accountable body. The initial decision respecting ‘significance’ has been subject to requirements for justification,103 but the practice in relation to cabinet decisions has been for the cabinet to issue a simple statement with no elaboration on the reasons for or against whether the project was ‘justified in the circumstances’. The Act includes a provision that allows the government to issue further guidelines on such decisions, but the preference has been to treat the decisions as political and purely discretionary.104 The requirement to consider environmental principles, such as the broad statement of federal environmental policy in section 101 NEPA, or contained in the preambular language of the EU EIA Directive, is implied in the structure of EA, but the open-textured nature of the principles and the degree of discretion afforded to decision-makers means that there are few substantive constraints. In Australia, the Minister, in addition to considering the results

97 Kleppe v Sierra Club, 427 US 390 (1976), at 400. 98 Greater Boston Television Corp. v FCC, 44 F2d 841 (DC Cir 1970), at 851. 99 Articles 13, 14 EIA Law China. 100 World Bank, ‘Russian Federation: How Well is Environmental Assessment Working in Russia’, at 61. 101 Ibid, at 49; see also Cherp, ‘Environmental Assessment in Countries in Transition’, at 357–74. 102 CEAA 2012, s. 52(2). 103 Pembina Institute for Appropriate Development v Canada [2008] F.C 302 (F.C.T.D), para. 79. 104 CEAA, s. 86(1)(a).

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894 neil craik of the EA study (which can take several forms under the Environmental Protection and Biodiversity Conservation Act), must consider the precautionary principle, principles of ecologically sustainable development, as well as specified international commitments Australia has in relation to World Heritage sites, Ramsar Convention wetlands, the Convention on Biological Diversity, and the Convention on International Trade in Endangered Species.105 In the case of the international commitments, the direction is not that the Minister must simply have regard to these considerations, but that it ‘must not act inconsistently with’ them.106 In this regard, EA processes function as means of implementation of, and compliance with, international environmental law. There are some important exceptions to the procedural nature of EA decision-making. Within international law, EA processes are often invoked as a response to potential transboundary harm. In circumstances where an EIA discloses that a planned activity would likely have a significant environmental impact, the no-harm principle of international law would require that the state proposing the activity refrain from proceeding with the activity.107 In practice, the determination of significant harm is rarely clear. In these circumstances, states owe procedural obligations of notice and consultation, but are not required to receive the consent of the affected state in the face of disagreement. The IFC Performance Standards provide another example in relation to critical habitat. Under Performance Standard 6, projects will be prohibited where the assessment indicates ‘adverse impacts on those biodiversity values for which the critical habitat was designated’.108 These exceptions do not suggest a major departure from the fundamental procedural nature of EA. Rather they indicate that where an EA discloses the likely future breach of an existing substantive environmental rule, sensible prevention will constrain the proponent from proceeding.

39.3.6 Follow-up and Monitoring As first designed, EA processes were expected to operate in an entirely ex ante manner. The predictive nature of EA was, however, premised on an optimistic understanding of the capacity of experts to accurately identify and quantify impacts. Experience, however, has shown that assessments face significant epistemological challenges. Ecosystem complexity, uncertain and non-linear causal relationships, and the high cost of assembling accurate baseline data have meant that actual impacts will often diverge from those predicted. A related difficulty is that in many cases significant effects are predicted to be avoided or lessened because of the incorporation of planned mitigation measures, but there were often not clear mechanisms to ensure the implementation of these measures or to assess their effectiveness. The role of EA in early formulations was in aid of a particular agency decision, and was not regulatory in the sense that EA was intended to have an ongoing role in ensuring that projects avoided significant adverse impacts. However, as governments have come to recognize the deficiencies of a purely predictive approach to EA, EA systems have 105 Articles 137–140 EPBC. 106 Ibid. 107 Rio Declaration, Principle 2; International Law Commission, Art. 3 Draft Articles on the Prevention of Transboundary Harm. 108 International Finance Corporation, Performance Standard 6: Biodiversity Conservation and Sustainable Management of Natural Resources (IFC, 2012).

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the assessment of environmental impact 895 increasingly incorporated follow-up and monitoring provisions into post-decision practices. The requirement for monitoring is often a matter of agency discretion.109 But there is a trend towards mandatory monitoring under certain conditions.110 Monitoring and follow-up are now integral parts of international EIA commitments.111 Follow-up measures are implemented by authorizing the approving authority to attach conditions to a decision to approve a planned activity. In Canada, conditions are part of the decision statement issues by the Minister or cabinet, and may be reviewed for compliance and enforced.112 A similar structure exists in Australia.113 In China, the legislation includes the authority for the approval institution to propose ‘improvement measures if obvious adverse environmental impacts are found’.114 In other contexts, EA legislation and policy documents link follow-up measures to adaptive management strategies.115 Adapting projects to account for uncertain or erroneous predictions gives rise to difficult legal questions concerning the degree to which an overseeing agency can require alterations to an activity’s operations, particularly where those changes may affect the economics of the planned activity. In some cases, adaptive management is used as a response to overcome uncertainties in a project; an approach that has received a mixed judicial reception. In Canada, one court referred to adaptive management as countering ‘the potentially paralyzing effects of the precautionary principle’ and went on to hold that ‘adaptive management permits projects with uncertain, yet potentially adverse environmental impacts to proceed based on flexible management strategies’.116 On the other hand, adaptive management plans have been rejected where they appear to be put forward as a blanket response to unresolved problems in the original assessment,117 or where adaptive management is being proposed without any degree of certainty that future measures will be effective.118 Follow-up measures may also be directed towards more generalized assessments of the adequacy of EA processes to improve EA practices. The Espoo Convention contemplates this role for follow-up noting that one of the objectives of such analyses is for ‘verification of past predictions in order to transfer experience to future activities of the same type’.119

39.4 Discussion: Convergence and Divergence One striking feature of the global development of EA is the degree of isomorphism across different institutional settings. Superficially, EA lends itself very much to transplantation since its procedural nature does not require implementing states or institutions to make 109 See NEPA Regulation § 1505.3. 110 CEAA, s. 53(4)(b); EPBC Regulations 2000, Statutory Rules No. 181, 2000, Sch. 4, s. 4.01(d). 111 Espoo Convention, Appendix V; Antarctic Protocol, Art. 5. 112 CEAA, ss. 54, 93. 113 EPBC, s. 134. 114 Article 15 EIA Law China. 115 CBD EIA Guidelines, para. 46. 116 Pembina Institute for Appropriate Development v Canada [2008] F.C 302 (F.C.T.D), para. 32. 117 High Sierra Hikers Association v Weingardt, 521 F. Supp. 2d 1065 (N.D. Ca. 2007), at 1090–1. 118 Sustain Our Sounds Incorporated v. The New Zealand King Salmon Company Ltd. [2014] NZSC 40, paras. 124–40. 119 Espoo Convention, Appendix V.

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896 neil craik radical adjustments to their substantive environmental requirements and development expectations. There was a strong symbolic aspect to the adoption of NEPA, whereby agencies are exhorted but not required to adhere to environmental objectives. This adjective structure has made EA an attractive form of environmental regulation because it attaches to decision-making structures, but does not necessarily alter those structures. States more readily accept EA obligations because they are not required to cede substantive authority over resource and development activities. In this regard, EA has found particularly strong purchase in transnational institutions, such as multilateral environmental agreements and development banks, where a single process can be applied across multiple jurisdictions and varied political and economic contexts. Much of the convergence in EA practice arises due to these transnational influences. In Europe, the development of EA has been driven by the EU EIA and SEA Directives, as well as the work of the UNECE (through the Espoo and Aarhus Conventions) in this area. The inclusion of the eastern European and former Soviet states in the UNECE expanded the take up of EA beyond Western Europe and brought the SER/OVOS more in line with traditional EA processes. The UNECE also allowed for knowledge sharing and capacity building across the wider region in the development of EA. In developing states, the adoption of EA policies by development banks required recipients of bank support to develop internal capacity to conduct or at least oversee and review EA processes. Loans have not been contingent on recipient states having EA legislation, but it was believed to help attract international investment.120 As the sources of international capital widened to include private sources, the desire to avoid duplication has led to parallel developments of EA practices by the IFC and private lenders through the Equator Principles. While these transnational sources have driven some convergence in development of EA, much of what made NEPA effective came after its creation in the form of judicial, and then agency attention, to procedural elaboration and oversight. It follows that the political and institutional setting in which EA requirements are contained will be important d eterminants of the extent to which EA can bring about environmentally sound outcomes. Here there is greater scope for divergence among EA systems. A crucial institutional element of the efficacy of EA processes is the degree to which different EA systems provide affected or interested persons with judicial recourse to supervise EA processes. The history of EA, particularly NEPA, has been indelibly influenced by litigation. Not only because the courts have shaped the legal meaning of NEPA, but also because the threat of litigation provides affected persons with increased leverage to exact project concessions from proponents.121 The right to seek judicial review is protected through administrative law, and subject to prevailing standards of review, which in the United States requires that the agency decision be found to be ‘arbitrary and capricious’, which in the context of EA includes recourse to the ‘hard look doctrine’. In other common law countries, the standard may be ‘reasonableness’ or may require that the applicant show a legal error.122 120 A. Hironaka, ‘The Globalization of Environmental Protection: The Case of Environmental Impact Assessment’ (2002) 43(I) International Journal of Comparative Sociology 65. 121 Taylor, Making Bureaucracies Think; Karkkainen, ‘Toward a Smarter NEPA’. 122 In Canada see Ontario Power Generation Inc. v. Greenpeace Canada, 2015 FCA 186; in Australia, the standard of review requires legal error or that decision be manifestly unreasonable, see Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 5.

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the assessment of environmental impact 897 A related issue involves who has standing to seek review of EA decisions. Under the Environmental Protection and Biodiversity Conservation Act (Australia), extended standing to seek judicial review is granted to persons with a demonstrated interested in the environment.123 In Europe, the right to access to justice in the context of environmental decision-making is protected under the Aarhus Convention, as well as through access to European courts (where states have failed to adhere to EU law, such as the EIA Directive). The creation of the World Bank Inspection Panel, which provides groups or individuals affected by bank-financed projects with an oversight mechanism to ensure compliance with bank policies, can also be understood as a form of quasi-judicial supervision and accountability.124 Where rights to access to judicial review for members of the public are limited, as is the case in China, agencies are much less constrained in the exercise of discretion in key procedural questions, such as screening and scoping decisions.125 There is a range of other institutional innovations bearing on efficacy that vary considerably across different EA systems. For example, systems differ in the degree of their transparency and opportunities for participation across the entire EA process. The screening and scoping processes are key leverage points within EA, as they often determine the form and extent of the review. Where those processes are treated primarily as bureaucratic decisions and are undertaken without public input, efficiency and development concerns may dominate agency attitudes. A second example is the use of review panels in Canada and Australia for conducting EAs, which give project issues a much higher political profile. While panel recommendations respecting the project are not required to be followed, the extensive and public nature of the review creates a high burden of justification for the decision-maker, and raises the political costs of ignoring those recommendations. The broader point here is that while EA processes follow a common structure, how they operate to influence decision outcomes will often turn on the manner of implementation. There is in all EA processes a disjuncture between the carrying out of the EA and the decision-making process that the EA informs. The relationship between those responsible for the EA and the decision is a further area of divergence among EA systems. NEPA, for example, requires the agency taking the decision to be responsible for the EA, and as a result agency officials must engage the public and consider quite directly how their activities are impacting the environment. Russia, on the other hand, almost completely decouples the creation of the EA, which is undertaken by the project proponent, from the decision respecting the project through the SER process. Under the SER/OVOS system there is limited direct opportunity for decision-makers to have to interact with the public, potentially limiting the social learning opportunities for government officials. The use of EAs by development banks and other funding sources is similarly insulated from those who are affected by the decision. In the development context, the EA is projected into a decision to finance made by remote institutions with very little political connection to those impacted by the decision. The difficulty in creating conditions of accountability for environmental decision-making has not been lost on the World Bank, which responded to these legitimacy 123 EPBC, s. 487(2). 124 World Bank Inspection Mandate, ‘Panel Mandate and Bank Policies’ (September 1993), available at: http://ewebapps.worldbank.org/apps/ip/Pages/Panel-Mandate.aspx. 125 Y. Zhao, ‘Public Participation in China’s EIA Regime: Rhetoric or Reality?’ (2010) 22 Journal of Environmental Law 89.

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898 neil craik concerns through the creation of the World Bank Inspection Panel. Concerns respecting accountability and legitimacy underlie the structure of the Canadian EA system that requires ‘justification’ decisions to be made by cabinet. In the same vein, the emphasis on discursive interactions within EA processes is o riented towards legitimacy. Requiring decision-makers to respond to comments received or to provide reasons for their decision are a direct way by which the participants can be assured that their concerns were at least considered. The practice in relation to reasons is again quite varied. The greater focus on follow-up measures has created additional institutional demands of a more regulatory nature. Imposing obligations for monitoring of impacts with the possibility of adaptive measures in response requires the identification of a body responsible to undertake or oversee the monitoring and determine the response. This change is potentially quite profound for agencies whose current structure and expertise is in ex ante planning, not monitoring and adaptation. Where the EA function is already centralized, for example in China, under the Ministry of Environmental Protection, the shift to a more regulatory structure may find a stronger fit within a Ministry that already has broad authority to monitor and respond to environmental outcomes. The SER/OVOS system in Russia, which has always been structured around a compliance approach has long incorporated monitoring into the SER process. However, in less centralized structures, that capacity will need to be developed. Under NEPA, monitoring would fall to individual agencies, but in many cases the agencies do not have a background in environmental compliance. Finally, the political settings in which EA processes operate vary considerably. As noted, the nature of EA makes it well-suited to operate across different political and economic settings, but given the democratic goals associated with the transparency and participation elements of EA, there are some salient areas of difference. The effectiveness of EA is premised in part on the ability of groups with environmental interests to bring pressure to bear on decision-makers, which in turn requires wide standing rules and opportunities for these groups. In the United States and Europe, environmental NGOs have been able to use EA processes as a mechanism to promote more sustainable development outcomes. In counties like China and Russia, the role of NGOs is treated with greater caution. The standing rules for participation are narrower, requiring participants to be directly affected. Chinese NGOs are only partially independent from the government, with many being established by the government itself.126 Even where rules permit or require public participation, an absence of a culture of participation has resulted in inadequate implementation of those requirements.127 China presents an interesting case here because it has moved to open up its EA process considerably since 2000, demonstrating a growing expectation for openness in environmental decision-making and a concurrent need for decision-makers to appeal to process values to engender legitimacy of environmental decisions. The desire for political control over outcomes is not restricted to states with more closed and centralized political structures. In Canada, despite a long history of public engagement in EA, the federal g overnment acted in 2012 to restrict involvement of groups with broader environmental interests by limited participatory rights to directly affected persons.128 126 Zhao, ‘Public Participation in China’s EIA Regime’. 127 World Bank, ‘Russian Federation: How Well is Environmental Assessment Working in Russia’. 128 CEAA, s. 2(2).

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the assessment of environmental impact 899

39.5 Concluding Remarks Returning to the theoretical models, EA processes can be seen as tools for mediating between the scientific, political, and normative elements within environmental decisionmaking. Viewed comparatively, different jurisdictions do not so much privilege one model over another, but rather emphasize and respond in varying ways to these elements. Importantly, each of these elements carries with it a legitimating function, and the presence of multiple elements suggests an interaction whereby each of these elements potentially compensates for deficiencies in the others. As the shortcomings of scientific prediction, particularly in a time of increasingly rapid global environmental change, make outcomes less certain, there is greater room for both political and normative influences within EA processes. EA processes push decision-makers towards a certain form of politics premised on open, participatory, and justificatory procedures, which will vary in their compatibility with the underlying institutional structures of implementing jurisdictions. EA in Europe, in particular, has been influenced by the dense institutional structures that favour open and inclusive environmental decision-making and high levels of access to judicial oversight. Russian and Chinese EA systems, as well as EA systems embedded in international finance institutions, reflect a continued commitment to bureaucratic expertise as the legitimating basis for environmental decision-making. However, the procedural norms that underlie EA are themselves a globalized phenomenon and create expectations for transparency and participation in institutional settings where these norms are not as well-established.

39.6 Select Bibliography Craik, N., The International Law of Environmental Impact Assessment: Process, Substance and Integration (Cambridge: Cambridge University Press, 2008). Craik, N., ‘Principle 17: Environmental Impact Assessment’ in J. Vinuales (ed.), The Rio Declaration on Environment and Development: A Commentary (Oxford: Oxford University Press, 2015). Holder, J., Environmental Assessment: The Regulation of Decision-Making (Oxford: Oxford University Press, 2004). Karkkainen, B., ‘Towards a Smarter NEPA: Monitoring and Managing Government’s Environmental Performance’ (2002) 102 Columbia Law Review 903. Lazarus, R., ‘The National Environmental Policy Act in the U.S. Supreme Court: A Reappraisal and a Peek Behind the Curtains’ (2012) 100 Georgetown Law Review 1507. Marsden, S., Strategic Environmental Assessment in International and European Law (London: Earthscan Press, 2008). Taylor, S., Making Bureaucracies Think: The Environmental Impact Statement Strategy of Administrative Reform (Palo Alto C.A.: Stanford University Press, 1984). Wood, C., Environmental Impact Assessment: A Comparative Review (Essex: Pearson Education, 2nd edn. 2003). UN Environment, Assessing Environmental Impacts—A Global Review of Legislation (Nairobi, Kenya: UNEP, 2018).

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M A R K ET M E C H A N ISM S

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chapter 40

En v ironm en ta l Ta x ation Janet Milne

40.1 Overview

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40.2 The Theoretical Foundation for Merging Environmental Protection into Taxation

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40.3 Environmental Taxation Instruments

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40.4 The Legal Authority to Use Environmental Taxation

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40.5 Design Features of Environmental Taxation

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40.6 How Theory Meets Practice: Carbon Pricing Case Studies

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40.7 Concluding Remarks: The Role of Environmental Taxation

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40.8 Acknowledgements

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40.9 Select Bibliography

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40.4.1 Allocation of Power Among Levels of Government 40.4.2 Procedural Aspects 40.4.3 International Trade Limitations 40.5.1 40.5.2 40.5.3 40.5.4 40.5.5 40.5.6

The Choice of Tax System The Choice of Tax Base and Taxable Event The Choice of Tax Rate Examples of the Diversity of Environmentally Related Taxes Use of the Revenue Designing Around Equity and Economic Concerns

40.6.1 British Columbia’s Carbon Tax 40.6.2 Ireland’s Carbon Tax 40.6.3 Japan’s Carbon Tax 40.6.4 United Kingdom’s Carbon Price Floor 40.6.5 Canada’s National Carbon Pricing Initiative 40.6.6 The European Commission’s Carbon Tax Efforts 40.6.7 US Wind Farm Tax Credits

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40.1 Overview Environmental taxation occupies a distinctive position among environmental policy instruments. Many environmental policy instruments are the product of environmental regulations, such as command and control regulations, permitting regimes, labelling requirements, and even market-based cap-and-trade systems. Environmental taxation, by contrast, is embedded within an unrelated legal regime designed primarily to achieve non-environmental purposes—government’s systems of taxation that exist to generate the resources that governments need to perform their public functions. The fact that achieving environmental protection was not the initial function of these tax systems does not denigrate the value or potential of environmental taxation. It serves instead to underscore the fact that environmental taxation’s unique characteristic as a hybrid instrument can serve environmental goals by riding on the back of tax systems. Those systems can allow it to shape behaviour in a different manner than other environmental policy instruments. This chapter begins with a brief, theoretical discussion of why environmental goals should be introduced into tax systems and how governments can green their tax codes (sections 40.2 and 40.3). It then explores the important threshold legal question of governments’ authority to create and administer these hybrid instruments, drawing on examples to illustrate how legal regimes can vary significantly from country to country (section 40.4). Assuming that a government has the raw legal power to use environmental taxation, the inquiry turns to the basic legal design features of environmental taxes (section 40.5) and specific examples of how countries have chosen to use environmental taxation to address climate change (section 40.6). Sections 40.4 to 40.6 examine not only the legal elements of environmental tax instruments to facilitate an understanding of the fundamentals of environmental taxation, but also the range of ways in which countries have designed these instruments, interjecting a cross-country comparative analysis. The chapter closes with a short evaluation of environmental taxation (section 40.7), looking at its comparative virtues and challenges among other environmental policy instruments. Thus, the chapter strives to achieve three basic purposes: to provide a foundational understanding of environmental taxation; to illustrate how it can be used in different ways by different countries; and to consider its comparative merits as an environmental policy instrument.

40.2 The Theoretical Foundation for Merging Environmental Protection into Taxation Although the fundamental purpose of taxation as a matter of budgetary policy is to generate the revenue that government needs to finance public-sector services, taxation can also serve other policy goals.1 In the environmental policy context, the notion of using 1 For one example of a discussion of the functions of taxation, see R. A. Musgrave and P.B. Musgrave, Public Finance in Theory and Practice (New York: McGraw-Hill Book Co., 2nd edn. 1976), 6–19.

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environmental taxation 905 taxation to achieve environmental protection grew from A. C. Pigou’s iconic work, The Economics of Welfare, first published in 1920.2 After exploring how private-sector activities can cast uncompensated costs and benefits on society, Pigou proposed that government could use taxes and ‘bounties’ to capture the cost of negative and positive externalities, respectively. They would shift the cost of externalities back to the private sector in an economically efficient manner that would advance the general welfare. Taxing negative externalities would create ‘extraordinary restraints’, and rewards for positive activities, which can take the form of benefits delivered through the tax code, would create ‘extraordinary encouragements’.3 Pigouvian theory requires the valuation of externalities. Responding to arguments about the difficulties of measuring externalities, William Baumol and Wallace Oates in 1971 proposed a different economic rationale for environmental taxation.4 They suggested that, instead of attempting to fully internalize externalities, government could determine the level of environmental protection it seeks to achieve and then set the tax or bounty at a level that it believes would induce the changes in behaviour necessary to achieve that goal. Tax measures would serve as a surrogate for standard-based environmental regulation, achieving the same goal as regulation but in a more cost-effective manner. Thus, a Baumol-Oates standard-based tax instrument starts with the establishment of the desired standard and then moves to the question of what tax or subsidy must be assigned to achieve that standard, whereas a Pigouvian tax instrument starts (and ends) with the determination of the magnitude of externalities. Both approaches provide clearly articulated economic theories for why policy-makers should introduce environmental protection into tax systems. The field of behavioural economics raises interesting questions about whether decision-makers’ bounded rationality prevents them from acting as the classic economic theories predict. An alternative approach is to step away from neoclassical economics theory and to consider tax signals as a vehicle for changing social norms over the course of time, sending ‘soft signals’5 that heighten awareness and understanding of environmental issues and, in turn, influence decisions. This approach does not require the imposition of an economically precise tax rate. The polluter-pays principle also offers a guiding hand to environmental taxation policy. The Organisation for Economic Co-operation and Development’s (OECD’s) foundational statement of the principle in 1972 was based on two inter-related rationales: polluters should bear the cost of pollution control and prevention measures, and government should not distort trade and investment by subsidizing environmental measures. The OECD’s articulation of the polluter-pays principle and its accompanying note provide theoretical support for using economic instruments to efficiently allocate costs, which is relevant to environmental taxes, and they caution against subsidies that underwrite compliance costs, which is relevant to environmental tax preferences. In some contexts, the polluter-pays principle has

2 A. C. Pigou, The Economics of Welfare (London: Macmillan and Co., 1920). 3 Ibid., at 168. 4 W. Baumol and W. Oates, ‘The Use of Standards and Prices for Protection of the Environment’ (1971) 73(1) Swedish Journal of Economics 42. 5 European Environment Agency, Environmental Taxes: Recent Developments in Tools for Integration (Luxembourg: European Environment Agency 2000), 9.

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906 janet milne attained legal status, such as through its inclusion in Rio Declaration in 19926 and its recognition in the Treaty for the Functioning of the European Union (TFEU).7

40.3 Environmental Taxation Instruments Following the Pigouvian dichotomy, environmental taxation instruments can easily be divided into two categories: those that place a price on a commodity or activity that is environmentally damaging (environmental taxes) and those that provide a financial benefit to commodities or activities that yield environmental benefits (environmental tax expenditures). It is more difficult, however, to determine which particular instruments fall within these categories. International bodies and academic analysts have struggled with how to define when a tax is worthy of the environmental moniker—whether the determinative feature is legislators’ intent to reduce pollution, the tax’s environmental effect, the environmental characteristics of what is being taxed, or the environmental impact of the use of the tax revenues. The OECD and Eurostat both focus on the nature of what is being taxed. The OECD uses the term ‘environmentally related tax’, which it defines as ‘any compulsory, unrequited payment to general government levied on tax-bases determined to be of particular environmental relevance. Taxes are unrequited in the sense that benefits provided by government to taxpayers are not normally in proportion to their payments.’8 The inclusion of the ‘unrequited’ element distinguishes taxes from fees, although the distinction between the two sometimes may be porous. This chapter applies the OECD’s definition with the caveat that the law of any particular country may set different boundaries,9 and it uses the term ‘environmental tax’ as shorthand for ‘environmentally related tax’. Environmental taxes can be further divided into subcategories according to what they tax. The OECD has organized environmental taxes according to whether they are emissions or effluent taxes, product taxes, or natural resource taxes; Eurostat has looked at whether the tax is imposed on energy, transport, pollution, or natural resources. These categories do not have legal significance, but they are conceptually useful for considering the different types of environmental challenges that taxation can reach. Environmental tax expenditures, also called tax preferences or tax incentives, take the converse approach by targeting and rewarding environmentally positive activities. The tax expenditure term, which this chapter uses, derives from the theory that targeted financial benefits delivered through the tax code are the functional equivalent of direct (cash) 6 United Nations Conference on Environment and Development: Rio Declaration on Environment and Development, Principle 16, adopted 14 June 1992, 31 I.L.M. 879 (1992) (‘polluters should, in principle, bear the cost of pollution’). 7 Article 191(2) TFEU (‘Union policy should be based on . . . the principles . . . that the polluter should pay’). 8 OECD, Environmentally Related Taxes in OECD Countries (Paris: OECD, 2001), 15. 9 For an example of how the law may apply a different definition, and the legal consequences thereof, see F. Pitrone, ‘Defining ‘Environmental Taxes’: Input from the Court of Justice of the European Union (January 2015) Bulletin for International Taxation 58.

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environmental taxation 907 governmental expenditures.10 Although there has been less public soul-searching about which tax expenditures warrant an environmental title, it seems appropriate to look at the e nvironmental attributes of what is being rewarded, following the approach for environmental taxes. Nonetheless, policy-makers should remain keenly aware of whether the environmental tax expenditures actually stimulate activity that otherwise would not have occurred, consistent with notions of cost-effectiveness and the polluter-pays principle’s anti-subsidy rationale. Tax expenditures can also subsidize environmentally damaging activities—the polar opposite of what Pigou would advocate—and the need to repeal these measures is gaining visibility.11 Policy analysts use the term ‘environmental fiscal reform’ to capture the concept that governments can better align their budgets with environmental objectives by repealing subsidies that underwrite environmentally damaging activities and by shifting the tax burden from traditional taxes to environmentally related taxes (sometimes known as ‘environmental tax reform’). This chapter focuses on environmental taxes and e nvironmental tax expenditures, both of which are environmentally positive instruments, but that focus is not meant to diminish the need to evaluate tax policies that may have a negative effect on the environment.

40.4 The Legal Authority to Use Environmental Taxation In order to translate environmental taxation from abstract theory into binding law, governments must have the legal authority to use an environmental taxation instrument. Who has the legal authority to use environmental taxation, and under what terms, varies from country to country. As in the case of taxation generally, national law defines powers and allocates them among different levels of government, with no universal rule governing that allocation. The legal question of the power to employ environmental taxation can be particularly interesting in some jurisdictions because environmental taxation instruments could be construed as either lying within a government’s tax powers or within its power to protect the environment. The following discussion provides examples of how countries’ legal regimes allocate the legal authority to use environmental taxation among different levels of government and procedural requirements that may affect the use of environmental taxation. It also discusses how international trade agreements can limit governments’ freedom to design environmental taxation instruments.

40.4.1 Allocation of Power Among Levels of Government As a matter of abstract environmental policy, one ideally may want to allocate e nvironmental responsibility according to the geographic scope of a government’s domain. Local governments 10 For a classic, early discussion of the tax expenditure concept, see S. Surrey, Pathways to Tax Reform: The Concept of Tax Expenditures (Cambridge M.A.: Harvard University Press, 1973). 11 See e.g. G7 Ise-Shima Leaders’ Declaration, G7 Ise-Shima Summit, 26–27 May 2016; G-20 Leaders’ Statement, The Pittsburgh Summit, 24–25 September 2009.

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908 janet milne may be in the best position to address local environmental challenges, and higher levels of government may be better suited to issues that have a broader environmental impact. However, the role of any particular government will depend on the scope of its actual legal authority, and its ability to use environmental taxation will depend on whether it has a tax system that can deliver the appropriate environmental tax message. The challenge of matching legal powers to the problem is not unique to environmental taxation instruments, but unlike other environmental policy instruments, the allocation of tax powers is often based on traditional tax principles that did not contemplate taxation’s environmental role, particularly in countries that have longstanding constitutional allocations of power. The European Union (EU) illustrates the allocation of tax powers between a supranational body and national bodies, the Member States. Under TFEU, Member States continue to be responsible for raising their tax revenues and the EU as a governing body has limited tax powers. The Council, which has representatives from all the Member States, can only adopt tax measures by unanimous approval.12 Thus, the tax systems within the Member States serve as the primary vehicles for environmental tax instruments. Despite the constraints on the EU’s tax powers, the EU nonetheless can significantly influence the design and use of environmental taxation measures. For example, the energy tax directive adopted by unanimous consent of the Member States sets minimum tax rates for energy products and electricity.13 The directive does not limit Member States’ ability to employ higher tax rates, but it sets a floor that Member States must respect. In addition, TFEU limits the ability of Member States to offer State aid in order to protect the internal market,14 which in turn can limit the ability of Member States to use environmental tax expenditures. The European Commission has issued detailed guidance and regulations on the treatment of environmental tax expenditures under the State aid rules.15 Thus, even though the EU as a supranational body does not operate as a significant tax-generating entity itself, the treaty allows it to influence Member States’ environmental tax policies. At the national level, the United States and Canada illustrate the federalism form of government. Under federalism, governing powers are distributed between the federal and lower levels of government, and the US and Canadian constitutions provide examples of different ways to allocate power over environmental taxation. In both cases, the longstanding constitutions make no specific reference to environmental taxation per se. The US Constitution gives the federal government specified powers, but all powers not conferred to the federal government remain in the hands of the states.16 On the tax front, the federal government holds relatively broad tax powers and states retain strong, independent tax powers that they have discretion to exercise in a wide variety of ways. On the environmental front, the federal government has the power to regulate the environment, most notably the power to regulate interstate commerce;17 states retain the power to protect 12 Articles 113, 115 TFEU. 13 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. 14 Articles 107, 108 TFEU. 15 European Commission, Communication from the Commission, Guidelines on State aid for environmental protection 2014-2020, 2014 OJ 2014/C 200/01; 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. 16 US Constitution, amend. X. 17 US Constitution art. 1, § 8, cl. 3.

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environmental taxation 909 the environment unless preempted by federal actions. Thus, both the federal and state (and local) governments are actively engaged in tax and environmental policy. Environmental taxation in theory could be regarded as a tax instrument or an environmental instrument with the regulatory goal of changing behaviour, but cases decided by the US Supreme Court establish the principle that regulatory taxes can be treated as taxes for federal constitutional purposes.18 Consequently, the federal government can rely on its broad tax power, not its more limited power to regulate interstate commerce. Although states have independent tax powers, the federal Constitution places some limits on how they exercise those powers. For example, the federal right to regulate interstate commerce prevents states from employing tax policies, including environmental taxation policies, that will discriminate against interstate commerce by favouring in-state activities over out-of-state activities.19 The Canadian Constitution uses a different approach to defining the relative federal and provincial powers. It lists the specific areas within which each level of government has exclusive power and assigns residual power to legislate ‘for the Peace, Order and good Government of Canada’ to the federal government.20 The task then is to determine the ‘pith and substance’ of a given law to determine whether it falls within the federal or provincial powers, applying precedent to determine whether a regulatory environmental tax provision is grounded in a tax power or an environmental power.21 Some countries instead function under a unitary form of government, where legal authority is concentrated at the highest level. For example, the central government in China controls tax policy, including environmentally related tax policy, and it established a taxsharing system among different levels of government to allocate administrative responsibility and revenue. By contrast, local Chinese governments have the power to impose fees and charges that are not deemed to be taxes and are not inconsistent with the central government’s policies.22 In Turkey, the central government has authority over taxes and fees. The Constitution gives the Turkish Parliament the power to impose taxes. It also allows the Parliament to delegate to the Council of Ministers some degree of authority to design the details of a tax, such as the tax rate, within boundaries.23

40.4.2 Procedural Aspects Within any given government, the law may influence the legislative process for enacting tax measures, including environmental taxation instruments. At a fundamental level, the structure of government may influence the certainty and speed with which a government 18 See e.g. National Federation of Independent Business v Sebelius, 132 S. Ct. 2566 (2012). 19 See e.g. New Energy Co. of Indiana v Limbach, 486 U.S. 269 (1988); Maryland v Louisiana, 451 U.S. 725 (1981). 20 Constitution Act, 1867, ss. 91, 92. 21 For an extensive discussion of how this analysis might apply to carbon taxes, see N. J. Chalifour, ‘Making Federalism Work for Climate Change: Canada’s Division of Powers over Carbon Taxes’ (2008) 22 National Journal of Constitutional Law 119. 22 For a discussion of the allocation of power in China, see Y. Xu, ‘China’s “Stir Fry” of Environmentally Related Taxes and Charges: Too Many Cooks at Work’ (2011) 23(2) Journal of Environmental Law 255. 23 L. Ates, ‘Environmental Taxation in Turkey’ in R. Salassa Boix (ed.), La Protección Ambiental a Través del Derecho Fiscal [Environmental Protection through Tax Law] (Córdoba: Universidad Nacional de Códoba 2015), Part III, 239–57.

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910 janet milne can execute its policies. For example, a parliamentary system of government may allow a government to achieve its agenda more quickly or with more certainty than a PresidentCongress system when one party does not have control. The law may also impose procedural requirements for enacting tax legislation at a more granular level that can affect environmental tax instruments. US law provides illustrations. Under the federal Constitution, all bills for ‘raising revenue’ must originate in the House of Representatives, the larger chamber of the bicameral Congress where Representatives are elected every two years.24 The Senate cannot act on a revenue-raising measure until it receives a revenue-raising bill from the House. A number of state constitutions contain similar provisions.25 This procedural limitation on a federal or state Senate’s power will restrain its ability to be the first-mover on environmental tax measures. However, under some precedent, a regulatory tax might not be construed as a bill for raising revenue, given its regulatory purpose.26 In addition, a measure might be a fee designed to pay for a government service, not a revenue-raising tax.27 These legal distinctions are not unique to e nvironmental taxation, but they can influence decisions about whether to design a measure as a tax or fee and whether to accentuate its regulatory characteristics. In addition, some state constitutions impose super-majority voting requirements for legislation that raises taxes,28 and as mentioned above, the TFEU requires unanimous consent for EU-level tax measures. In the case of US tax expenditures, budget rules created to impose budget discipline may require that revenue-losing measures be offset by revenue-raising measures, commonly known as ‘pay-as-you-go’ or ‘pay-go’ rules. At the federal level, this budget discipline is codified in statute.29 Although the statute contains exemptions, such as response to an emergency, the need ordinarily to find offsetting revenue sources can inhibit the use of environmentally oriented tax expenditures as a practical matter.

40.4.3 International Trade Limitations At the international level, trade agreements designed to protect the playing field for international trade can create legal constraints on the use of environmental taxes and environmental tax expenditures. The following discussion paints, in dangerously broad strokes, the outlines of trade rules that operate through the World Trade Organization (WTO) with the caveat that other trade agreements may be relevant as well. Rules for e nvironmental taxes fall within the General Agreement on Tariffs and Trade (GATT), and those for environmental tax expenditures are subject to the Agreement on Subsidies and Countervailing Measures (the SCM Agreement).

24 US Constitution, art. I, § 7, cl. 1. 25 See e.g. Ma. Constitution, Part II, chapter 1, §3, art. VII; OR. Constitution, art. IV, § 18. 26 Sissel v U.S. Department of Health and Human Services, 760 F.3d 1 (D.C. Cir. 2014) (federal tax designed encourage people to purchase health insurance was not subject to the federal origination clause even though it was projected to raise $4 billion annually). 27 See e.g. Northern Counties Investment Trust v Sears, 41 P. 931 (Or. 1895). 28 See e.g. Californian Constitution, art. XIII A § 3 (two-thirds majority of both houses required for changes resulting in higher tax). 29 Statutory Pay-As-You-Go-Act of 2010, P.L. 111–39 (2010).

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environmental taxation 911 Article III GATT establishes the basic principle that a country’s taxes and charges cannot operate in a manner that protects domestic products, and it establishes non-discrimination rules for ‘like’ products’30 and ‘directly competitive or substitutable products’.31 Nevertheless, under Article II countries can impose border tax adjustments on imported products that will match the tax burden on domestic products.32 These trade rules are not specific to environmental taxes, but they carry consequences for environmental taxes. For example, a 1994 GATT panel found that a US tax on gas-guzzling cars imported from the EU was not discriminatory under Article III in part because cars with low fuel economy subject to the tax were not ‘like’ more fuel-efficient cars not subject to the tax.33 However, the law leaves ample room for debate. Legal discussion continues about issues such as whether environmentally significant differences in production measures can prevent products from being ‘like’ or ‘directly competitive or substitutable’, and whether border tax adjustments can apply to environmental attributes of non-product related processes and production methods used prior to importation34—an issue particularly germane today in the carbon tax context. If a measure is deemed to run counter to Article II or III, it may still be defensible under Article XX, which provides the challenged government with an opportunity to justify the measure if it meets certain criteria.35 Environmental tax expenditures are subject to the SCM Agreement, which covers s ubsidies generally. The Agreement’s definition of subsidies includes financial contributions by government in the form of foregone revenues, citing tax credits as an example, so it would appear to apply to tax expenditures.36 The subsidy must confer a benefit.37 In addressing the risk that countries might use subsidies to protect domestic industries vulnerable to international competitors, the SCM Agreement identifies categories of subsidies that are prohibited,38 actionable,39 and non-actionable.40 The category of non-actionable subsidies, however, was in effect for only five years and therefore created only a short-term safe harbor.41 Unlike GATT’s Article XX, there is no public interest defence for a prohibited or actionable subsidy.

40.5 Design Features of Environmental Taxation Operating within the bounds of its legal authority, a government has a wide variety of choices about where to place environmental tax measures within its tax systems and how to design the legal features of the instruments. This section provides an overview of common 30 Article III(1) GATT. 31 Article III Note Ad (2) GATT. 32 Article II(2)(a) GATT. 33 US—Taxes on Automobiles, DS31/R (11 October 1994). See also US—Taxes on Petroleum and Certain Imported Substances, L/6175-34S/136 (17 June 1987) (reviewing the US Superfund Act’s environmental taxes on imported petroleum and imported substances). 34 e.g. US tax on ozone-depleting chemicals included a border tax adjustment for imported products that had been produced by methods that used ozone-depleting chemicals. 26 U.S.C. §§ 4681, 4682. This PPM border tax adjustment was not challenged under GATT rules. 35 Article XX (chapeau), (b), (g) GATT. 36 Article 1.1(a)(1)(ii) SCM Agreement. 37 Ibid., Art. 1.1(b). 38 Ibid., Art. 3. 39 Ibid., Art. 5. 40 Ibid., Arts. 8.1, 8.2. 41 Ibid., Art. 31.

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912 janet milne design decisions that tend to recur regardless of jurisdiction and offers illustrations of design choices that some countries have made.

40.5.1 The Choice of Tax System A country’s tax system can consist of numerous types of taxes at various levels of government, such as business and personal income taxes, excise taxes, value added taxes, estate and inheritance taxes, social security taxes, vehicle or circulation taxes, and property taxes. A threshold question for designing environmental taxation instruments is where to place the environmental instrument within these taxes. The answer will depend on which type of tax best meshes with the particular environmental goal that the environmental taxation system is intended to further. Environmental taxes frequently take the form of excise taxes, which are taxes applied when a good or service is produced, imported, or sold. An excise tax can match well with specific products or activities that generate adverse environmental impacts. Carbon taxes and taxes on motor vehicle fuels, for example, often take the form of excise taxes that recognize environmental externalities. The ‘Superfund’ created by the US Congress illustrates another approach. When Congress created the Superfund to enable the federal government to clean up hazardous waste sites, it imposed an excise tax on the manufacturers and importers of certain chemicals,42 but it also imposed a small income tax on corporations with annual taxable income over $2 million43 to finance the Superfund.44 The excise tax on potentially harmful chemicals draws a direct linkage to waste risks, and the income tax relies on a blunter relationship with business activities that may have contributed more indirectly to the waste problem. The State of Vermont in the United States offers a third example: a special capital gains tax rate to sales of land that has been held for a short period of time and accrued substantial gains,45 a measure intended to dampen land speculation and development. Environmental tax expenditures can fit within numerous types of taxes. Unlike environmental taxes, they are not, standing alone, a new tax that is introduced into a category of taxes. Instead, they offer relief from some existing tax in order to induce the desired green behaviour. They can take the form of exemptions from existing taxes, reductions in the otherwise applicable tax rate, accelerated depreciation, or immediate deduction for expenses that otherwise would be treated as depreciable capital expenses for income tax purposes, deductions for activities that would otherwise not be deductible, or tax credits against tax liability if the taxpayer engages in a specific activity, to name some. Policy-makers must determine which existing taxes offer the best opportunities to deliver the positive message. For example, a full or partial exemption from energy taxes can encourage the production of electricity from renewable sources;46 utilities that use fossil fuel to produce electricity might qualify for a tax credit to the extent that they sequester carbon dioxide emissions;47 purchasers of alternative fuel vehicles might receive an income tax 42 26 U.S.C. §§ 4661, 4662, 4671, 4672. 43 Ibid., § 59A. 44 Ibid., § 9507. 45 Vt. Stat. Ann. tit. 32 §§ 10001–11. 46 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. 47 26 U.S.C. § 45Q.

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environmental taxation 913 credit;48 or farmers could receive a reduction in their property taxes to reduce development pressure on the landscape.49 The choices will vary depending on the structure of a given country’s tax system and how it could intersect with the types of environmentally positive activities that the policy-makers seek to encourage. Given the multiplicity of options for environmental tax expenditures and the countryspecific context, the remainder of this section focuses on choices affecting the design of environmental taxes, which tend to transcend international boundaries. Nonetheless, the chapter returns to the question of the use of environmental tax expenditures in sections 40.6 and 40.7.

40.5.2 The Choice of Tax Base and Taxable Event The fundamental formula for an environmental tax is simple: the tax base multiplied by the tax rate equals the revenue from the tax (tax base (x) tax rate = tax revenue). As with any tax, one must determine what to tax (the tax base), when to impose the tax (the taxable event), and who pays the tax (the taxpayer). For environmental purposes, one wants to tax the environmentally damaging commodity or activity, but for environmental and tax purposes, the tax must be administratively feasible. The choice of tax base and taxable event must be workable in the practical, real world. In some instances, matching the environmental goal and the tax base is simple and does not raise administrative feasibility issues. If the goal is to promote the production and purchase of fuel-efficient vehicles, for example, it is relatively logical and simple to impose a tax on fuel-inefficient vehicles at the time of manufacture or sale.50 In other cases, policy-makers may need to use a plausible surrogate as the tax base, as in the case of carbon taxes on fossil fuels. In that case, the environmental goal is to reduce greenhouse gas emissions. Those emissions occur when the end user combusts the fuel, but it is not possible or practical in many situations to monitor actual emissions and tax the end user, particularly if the end user is a member of the public and not a utility charged with monitoring emissions. The carbon content of the fossil fuel instead can act as a surrogate for the ultimate emissions, given the correlation between the chemical composition of the fuel and the carbon dioxide emissions that will result (measured in tons of carbon dioxide). Using this surrogate as the tax base, policy-makers can impose the tax on the producers or distributors of the fossil fuels (known as an ‘upstream’ point in tax terms, as opposed to a ‘downstream’ tax on end users). Treating the upstream production or distribution as the taxable event offers the administrative advantage of dealing with fewer taxpayers. With an upstream tax, policy-makers will need to consider the possibility that some fuel might never be combusted—for example, if the fuel is used as a feedstock to produce some other product or if emissions subsequently are sequestered. Exemptions, tax credits, or rebates can address these situations. An upstream tax also raises the question of who actually bears the financial burden of the tax. If the tax is paid at the point when the commodity enters the stream of commerce, taxpayers will want to pass the tax cost down the line, as will subsequent purchasers. How much the tax cost passes along to the end user will depend on 48 Ibid., §§ 30D, 30D. 49 Vt. Stat. Ann. tit. 32, ch. 124, §§ 3751–63. 50 See e.g. 26 U.S.C. § 4064.

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914 janet milne market conditions and legal requirements. From an environmental perspective, the tax burden optimally should fall on the actor whose behaviour the policy-makers seek to change. The choice of tax base may also depend on the interrelationship with other e nvironmental policy instruments that target the same environmental problem. For example, if a capand-trade scheme covers some but not all sectors, a tax might apply only to the sectors outside the scheme to avoid placing one price signal on top of another for the same set of actors (see discussion of the Irish carbon tax and the United Kingdom’s carbon price floor in section 40.6).

40.5.3 The Choice of Tax Rate From the economists’ perspective, the optimal tax rate should reflect social costs of the targeted externality (under Pigouvian theory) or the level of tax required to achieve a desired degree of behavioural change (under the Baumol-Oates approach). Although these formulations set a gold standard, as a practical matter, policy-makers may have insufficient information or political capacity to determine and impose the optimal tax rate. They may also have other considerations, such as equity, in mind. Hence, the tax rate instead may send a price signal to start changing behavioural assumptions and norms even if it does not rise to the level of the economists’ optimal tax rate. Alternatively, the tax rate may be designed to generate revenue that the government will use to address the environmental problem, in which case the tax rate will depend on how much revenue the government seeks to raise rather than its behavioural effect. A number of environmental taxes fall within this category but nonetheless qualify under the definition of environmentally related taxes. Several policy and technical matters of a second order can also affect tax rate design. If other taxes already apply to the same tax base, it is important to consider the cumulative effect of all the taxes when setting the rate for a new tax on the same base. For example, a new carbon tax might apply to motor fuels already subject to a fuel tax. Even if policy-makers choose not to reduce the carbon tax rate accordingly, the existing tax picture will inform the policy-making process and political considerations. In terms of technical design, phasing in the tax rate during an initial period, where appropriate, can give taxpayers time to adjust to the new tax burden and to plan for alternative patterns of behaviour. In addition, inflation adjustments to the tax rate that are built into the law will preserve the long-term real value of the tax rate. The following examples illustrate various approaches to designing tax rates. The US federal tax on ozone-depleting chemicals calibrated the tax rate according to the ozone-depleting potential of each of the chemicals subject to the tax.51 The tax rate was a base dollar amount multiplied by the ozone-depletion factor that the Montreal Protocol had assigned to each chemical, with the result that the tax rate for Halon-1301 (with a factor of 10) was ten times higher than the rate for CFC-11 (with a factor of 1).52 Building the relative degree of environmental harm into the tax rate gave the tax environmental credibility. Note that a similar result can be obtained by how one defines the tax base. For example, if a carbon tax applies to multiple greenhouse gases with varying global warming potential, the law may define the 51 26 U.S.C. §§ 4681, 4682. 52 The base amount phased up, increasing annually by more than the amount of inflation.

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environmental taxation 915 tax base in terms of the tons of carbon dioxide equivalents (CO2-e). One ton of carbon dioxide emissions (with a 100-year global warming potential factor of 1) would count as one ton and one ton of methane emissions (with a global warming potential factor of 7,390) would count as 7,390 tons. The tax rate would be equal for all emissions because the calibration occurs through the definition of the tax base rather than the tax rate. Switzerland’s carbon tax rate is expressly subject to adjustment if emissions reductions do not meet the government’s targets. Swiss law set the greenhouse gas emissions reduction goal at 20 per cent below the 1990 emissions level by 2020 and imposed a CO2 levy as one of the policy instruments.53 The tax went into effect at 36 Swiss francs per tonne of CO2 emissions, but the law gave the Federal Council the authority to increase the tax up to 120 francs if necessary to meet the emissions reduction target. The tax rate increased to 96 francs in 2018. This tax is in effect taking the Baumol-Oates approach of setting a standard but recognizing that the rate may need to increase if emissions do not achieve the standard.

40.5.4 Examples of the Diversity of Environmentally Related Taxes Given the wide array of environmental tax problems facing the world and the potential flexibility of taxation, tax bases and rates can assume many different forms. The following thumbnail sketches provide a small sampling to demonstrate the versatility of environmental tax bases and classes of taxpayers, as well as tax rates. A broad survey of environmentally related taxes is available on an OECD website that tracks environmental tax instruments.54 Carbon taxes are discussed at length in section 40.6. Taxes have targeted motor vehicles based on their environmental performance. Ireland, for example, calculates the annual tax on motor vehicles purchased since mid-2008 according to the level of carbon dioxide emissions. Owners of private cars with zero emissions pay a minimum tax of 120 euros, whereas owners of vehicles with the highest level of emissions (over 225 grams per kilometre) pay at the rate of 2,350 euros.55 Taking a different approach, the United States imposes a one-time excise tax just on gas-guzzling vehicles at the time of manufacture.56 The tax applies only to vehicles with fuel economy less than 22.5 miles per gallon, and the tax rate increases as fuel economy diminishes, from $1,000 per vehicle to $7,700 for vehicles with fuel economy less than 12.5 miles per gallon. Unfortunately, the tax does not apply to sports utility vehicles, which have acquired a significant market share since the tax was enacted in 1978. In addition, the tax rates have not been adjusted for inflation, and Congress has not revisited the question of the level of fuel economy that triggers the tax. The Irish and US taxes both target environmentally detrimental vehicles, but they offer an interesting contrast in terms of the taxable event (annual registration versus entry 53 Code Civil [CC] [Civil Code] 23 December 2011, 641.71 (Switzerland). 54 OECD, Environmental Taxation, http://www.oecd.org/env/tools-evaluation/environmentaltaxation. htm, and linked webpages. 55 Finance Act 1992, Part II, Chapter IV, § 130 et seq. (and subsequent amendments); S.I. No. 207 of 2008. Road Vehicles (Registration and Licensing) (Amendment) (No. 2); Irish Department of Housing, Planning, Community and Local Government, Motor Taxation. Rates of Duty (effective 1 January 2016) (2015). 56 26 U.S.C. § 4064.

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916 janet milne of the vehicle into the market), the scope of the tax base (all vehicles versus the most inefficient), and the approach to the tax rate (calibration to emissions versus fuel economy). In 2002, Ireland introduced a tax on plastic bags, which started at 15 euro cents per bag and later increased to 22 euro cents, payable by the customer at the cash register.57 The consumer response was dramatic. Annual per capita usage fell immediately from an average of 328 to twenty-one bags and in 2014 had fallen to fourteen.58 A number of other governments around the world have adopted plastic bag levies, although some have preferred outright bans. In 2015, the European Parliament passed a plastic bag Directive that requires Member States to take measures by the end of 2016 that will reduce plastic bag usage by either applying charges at the point of sale or using other measures that will ensure that per capita usage falls to forty lightweight bags by the end of 2025.59 Environmentally related taxes can also apply to potentially harmful chemicals introduced into the environment in the course of agricultural and manufacturing processes. For example, countries have applied taxes to pesticides in various ways. Sweden taxes pesticides at a flat rate based on kilograms of active ingredients, whereas Norway and Denmark calibrate the tax rate according to the environmental and health effects of the ingredients.60 The United States had an excise tax on certain potentially toxic chemicals used in manufacturing processes that could contribute to toxic waste problems. The tax rate varied depending on the particular chemical and was part of a set of environmental policies designed to address hazardous waste sites.61 A number of countries impose taxes on waste deposited in landfills in order to create an incentive to reduce the amount of waste. The United Kingdom has had a landfill tax in effect since 1996.62 Payable by the landfill operator, the standard tax rate is now £88.95 per tonne.63 Scotland enacted its own landfill tax in 2014 as a replacement for the UK tax.64 The law delegates to the Scottish Ministers the authority to set the tax rate by order, and the tax rate currently is the same as the UK rate. The UK and Scottish laws exempt certain types of disposal, such as material from dredging and pet cemeteries. Several countries have taxed aircraft noise, a different type of pollutant. France imposed a tax on airport noise pollution in 2005, which taxes aircraft operators or owners whose flights take off at large airports. The tax rate depends on the aircraft’s take-off weight, the hour of departure, and acoustic characteristics.65 Australia also taxes aircraft noise but imposes the tax on landing aircraft and is keyed just to noise level.66 The tax applies to the 57 Waste Management (Amendment) Act 2001 (Act No. 36/2001; Waste Management (Environmental Levy) (Plastic Bag) Regulations, 2001 (SI 605/2001); Waste Management (Environmental Levy) (Plastic Bag) (Amendment) (No. 2) Regulations 2007 (SI 167/2007). 58 Ireland Department of Housing, Planning, Community and Local Government, Plastic Bag Levy, at: http://www.housing.gov.ie/environment/waste/plastic-bags/plastic-bag-levy. 59 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). 60 See D. Hogg et al., Study on Assessing the Environmental Fiscal Potential for the EU 28, Final Report for European Commission, Directorate-General Environment, Brussels (2016), 58–60. 61 26 U.S.C. §§ 4661, 4662. 62 Finance Act 1996, c. 8, § 40. 63 Finance Bill 2016. 64 Landfill Tax (Scotland) Act 2014. 65 Code General des Impots [Internal Revenue Code] art. 1609 quatervicies A (Fr.). 66 Aircraft Noise Levy Act 1995 (Australia); Aircraft Noise Levy Collection Amendment Bill 2001 (Australia).

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environmental taxation 917 operator but is passed on to the passenger as a per-ticket tax of $3.40 (Australian dollars).67 The tax currently only applies at the Sydney airport. In both cases, the tax revenue is used to fund noise abatement measures in the local area. The policy motivation appears to spring more from the desire to place the burden of financing remediation on the polluters than to change behaviour. Environmentally related taxes can also apply to resource extraction. Virtually all of Denmark’s water supply comes from groundwater, and Denmark has imposed a groundwater extraction tax, paid primarily by households, as part of its campaign to reduce water extraction.68 The inflation-adjusted tax in 2018 is 6.18 Danish kroner per square metre. Taxing a different type of natural resource, the United Kingdom imposes an aggregates levy on the quarrying of rock, sand and gravel at a rate of £2 per tonne to reflect the environmental costs of quarrying, ranging from noise and dust to biodiversity impacts, and to encourage resource conservation.

40.5.5 Use of the Revenue As fiscal measures, environmentally related taxes will produce revenue, leaving policymakers to decide how to use the revenue. A fundamental issue is whether both the tax and the revenue need to target the same environmental goal or whether the revenue can address non-environmental goals. Several approaches emerge from the literature and experiences to date. One possibility is that, as a matter of environmental economics, policymakers may maintain their full discretion to use the revenue as they wish. An environmental tax that executes Pigouvian or Baumol-Oates theory should send a price signal which, standing alone, will achieve the environmental goal. If so, the revenue need not be dedicated to the environmental result in order to achieve the desired end, and policy-makers are free to use the tax revenue for whatever purpose they deem best, environmental or otherwise. Environmental economists have developed a related theory that policy-makers may combine environmental taxes into revenue-neutral tax reform packages by using the environmental tax revenues to reduce other tax burdens that may be distorting the economy. According to some economists, such a revenue-neutral adjustment, sometimes referred to colloquially as ‘tax bads, not goods’, can generate a ‘double dividend’. The first dividend will be a cleaner environment as a result of the environmental tax. The second dividend will be a stronger economy as a result of reducing distortionary taxes, such as taxes on labour. This theory is particularly prevalent in the carbon tax context because carbon taxes have the potential to generate revenues substantial enough to finance some appreciable degree of tax reform. Another possibility is that policy-makers may conclude that the revenue should be used to achieve the same goal the environmental tax pursues. Using the revenue to finance related projects may help accelerate the achievement of the environmental goal, or it may execute a notion that the polluter should pay not only for the pollution but also for remediation of 67 Australian Tax Office, Aircraft Fees and Levies, at: https://www.ato.gov.au/law/view/document? docid=GII/GSTIITH7/NAT/ATO/00001. 68 Hogg et al., Study on Assessing the Environmental Fiscal Potential for the EU 28, at 206.

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918 janet milne the consequences of pollution. As a corollary, in cases where the e nvironmental tax does not send a price signal strong enough to change behaviour, the true environmental credentials will turn more on whether the revenue is used to address the environmental purpose. In those instances, the tax base is environmentally related but the environmental goal is achieved through the dedication of the revenue for the e nvironmental purpose. For example a US federal excise tax on crude oil and petroleum products, levied at the rate of 8 cents per barrel in 2016, is not high enough to influence behaviour, but its dedication to a federal trust fund used to finance the federal response to oil spills serves a strong e nvironmental end.69 If legislators use the revenue for a related environmental purpose, they face the choice of whether to earmark the revenue or to send the revenue to the general fund and rely on the normal appropriations process to allocate the revenue to the environmental purpose. Earmarking, also known as ring-fencing or hypothecation, sets the revenue apart from the general fund and is somewhat controversial among public finance experts and others. Experts debate whether earmarking inappropriately circumvents normal budgetary p rocedures that can reevaluate priorities and creates entrenched bureaucracies, or whether it protects important priorities from politics and builds public support for the tax that funds the dedicated account. Policy-makers may also find that they need to use some of the revenue to address other policy concerns related to the environmental tax, such as mitigating the impacts of a tax on low-income individuals or vulnerable economic sectors through direct spending programmes or tax relief, an issue discussed in section 40.5.6.

40.5.6 Designing Around Equity and Economic Concerns The design of environmentally related taxes is shaped not just by an environmental agenda but also by policy factors that influence the design of many types of taxes—in particular, policy concerns about equity and the economic impact of the tax. The discussion of carbon taxes in section 40.6 illustrates responses to these concerns, but this brief introduction provides background. Principles of equity in tax policy focus on whether the tax burden is proportionate to the taxpayer’s ability to pay (vertical equity) and whether similarly situated taxpayers are treated equally (horizontal equity). Environmental taxes that affect basic commodities on which households rely, such as heating and transportation fuel or water, often spur concern about whether the additional burden is unfair, rendering the taxes regressive as a matter of vertical equity even if they are environmentally progressive. Concerns about regressivity can result in decisions not to impose a tax, to offer exemptions, to reduce the tax rate, or to use the revenue in a way that will mitigate the burden on households. Similarly, a tax may impose a perceived or real burden on some sectors of the economy. For example, energy-related taxes will impose a higher burden on energy-intensive industries than less energy-intensive companies. Placing a higher cost on energy is precisely what the tax is designed to do; the higher cost is intended to produce an environmentally positive response. However, policy-makers will also consider the economic impact and whether taxpayers with a high tax cost will become less competitive or move to other jurisdictions 69 26 U.S.C. §§ 4611, 9509.

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environmental taxation 919 that have lower tax costs. These considerations may affect tax design, such as whether to offer exemptions, reduce tax rates to certain classes of taxpayers, use the revenue to reduce other tax burdens, or provide transition aid. As an alternative to exempting vulnerable industries, policy-makers can build a border tax adjustment into the tax. A border tax adjustment places a tax cost on imported products equal to that borne by domestic industry and exempts exported domestic goods from the tax, thereby leveling the competitive playing field. For countries that are members of the WTO, border tax adjustments must be compliant with the GATT requirements. As indicated in section 40.4.3, questions remain about whether a border tax adjustment that applies to emissions that occurred in the manufacturing process is GATT-legal. Those emissions would also need to be quantifiable in an administratively feasible manner. The regulations promulgated under the US tax on ozone-depleting chemicals offer an interesting example of the technical design of a border tax adjustment that extends to emissions associated with the manufacturing process.70

40.6 How Theory Meets Practice: Carbon Pricing Case Studies The field of countries that have adopted carbon taxes has grown significantly in recent years. The following list, drawn from a 2016 World Bank study,71 indicates the countries that have adopted carbon tax, the year the tax went into effect or was projected to go into effect, and the tax rate per ton of CO2-e as of 2016: Finland (1990, $65 for liquid fuels, $60 for other fossil fuels), Poland (1990,