(Oxford Handbooks) Emma Lees, Jorge E. Viñuales - The Oxford Handbook of Comparative Environmental Law-Oxford University Press (2019) PDF

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
the oxford handbook of
COMPARATIVE
ENVIRONMENTAL
LAW
Edited by
EMMA LEES
and
JORGE E. VIÑUALES
1
1
Great Clarendon Street, Oxford, ox2 6dp,
United Kingdom
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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.
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 171
Laurent Neyret
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 460

Agustín García-Ureta
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 790

Emma Lees
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 1044

Louis J. Kotzé and Erin Daly
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
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
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
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
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
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
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
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
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-235/04 (ECLI:EU:C:2007:386)�� 471, 840
Commission v Spain, Case C-186/06 [2007] ECR I-12,093��840
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
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
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
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
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
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
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
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
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
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
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
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
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
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
Table of Legislation
International Instruments Antarctic Treaty 1959��839

Convention Supplementary to the Paris
Convention for the Unification of Certain Convention 1960 (1963, 1041 UNTS 358)
Rules Relating to International (Brussels Supplementary Convention;
Carriage by Air 1929, 137 UNTS 13 Protocols from 1964, 1982 and 2004)��1027
(Warsaw Convention)��1028 Convention on Civil Liability for Nuclear
Convention on Nature Protection and Damage 1963, 1063 UNTS 265
Wildlife Preservation in the Western (Vienna Convention) ��1027
Hemisphere, 1940, 161 UNTS 193 �� 462 Treaty Banning Nuclear Weapon Tests in the
United Nations Charter 1945�� 1047, 1050 Atmosphere, in Outer Space and Under
International Convention for the Regulation Water, 1963, 480 UNTS 43 ��398
of Whaling 1946, 161 UNTS 72��474 Outer Space Treaty (Treaty on Principles
General Agreement on Tariffs Governing the Activities of States in the
and Trade 1948��482, 910, 919 Exploration and Use of Outer Space,
Art II �� 911 including the Moon and Other Celestial
Art II(2)(a) �� 911 Bodies, 1967 ��839
Art III�� 911 African Convention for the Conservation of
Art III(1) �� 911 Nature and Natural Resources 1968, 1001
Art III Note Ad (2)�� 911 UNTS 4 (revised 2017) ��449, 462, 475
Art XX�� 911 Art 12��838
Art XX (chapeau)�� 911 Convention on Third Party Liability in the Field
Art XX (b), (g)�� 482 of Nuclear Energy 1960, 956 UNTS 251
Universal Declaration of Human (Paris Convention; Protocols from 1964,
Rights 1948�� 1047, 1050 1982 and 2004)��1027
International Plant Protection Convention International Convention for the Protection of
1951��481 New Varieties of Plants, International
European Convention on Human Rights Union for the Protection of New Varieties
1952 �� 152, 355, 436, 980, 1054–5, 1153 of Plants 1968 (revised 1972, 1978,
Art 1��41 and 1991)�� 525
Art 6�� 846 Art 1(v)�� 525
Art 7�� 1129 American Convention on Human
Art 8��355, 1055 Rights 1960�� 980, 1054
First Protocol �� 355 Art 13�� 980
Art 1�� 485, 846 Convention for the Conservation of
Convention on Damage Caused by Vicuna 1969 �� 476
Foreign Aircraft to Third Parties on the Vienna Convention on the Law of
Surface by the International Civil Aviation Treaties 1969�� 175
Organisation of the ICAO 1952, Art 18��228, 1171
(Rome Convention)��1028 Art 31(3)�� 445
Interim Convention on Conservation Convention on Civil Liability for Oil Pollution
of North Pacific Fur Seals 1957, Damage 1969 ��228
4546 UNTS 298 ��474 Declaration of Principles Governing the Seabed
Art IIa ��474 and the Ocean-floor, and the Subsoil
xxxvi table of legislation
thereof, beyond the Limits of National Convention on International Trade in

Jurisdiction 1970 �� 448 Endangered Species of Wild
Convention on Wetlands of International Fauna and Flora 1975��218–19, 309, 462,
Importance especially as Waterfowl 482–4, 894, 1169
Habitat 1971, 996 UNTS 245 (Ramsar App I ��261
Convention) ��346, 422, 433–5, Belgrade Charter 1976�� 954
436, 458, 464, 469, Tbilisi Declaration 1977��50–1, 954
836, 838, 894 Convention on Civil Liability for Oil
Art 2��839 Pollution Damage 1978��243
Art 2.2 �� 432–4 Agreement Governing the Activities of States
Art 2.3 ��435 on the Moon and Other Celestial
Art 2.4 ��839 Bodies 1979��839
Art 2.5 ��841 Convention on the Conservation of European
International Convention on the Wildlife and Natural Habitats 1979
Establishment of an International Fund (Bern Convention) ��836
for Compensation for Oil Pollution Convention on Long-Range Transboundary Air
Damage 1971 (superseded by Protocol Pollution 1979, 1302 UNTS 217�� 399–400
of 1992, as amended)�� 1027 Art 1(b) �� 399
Convention Concerning the Protection of the Art 2��400
World Cultural and Natural Heritage Protocols�� 399
1972 1037 UNTS 151��62, 457, 470, Gothenburg Protocol 1999�� 405
839, 1166, 1177 Convention on the Conservation of Migratory
Art 2�� 840 Species of Wild Animals 1979, 1651
Art 5(d)�� 62–3 UNTS 333 �� 462, 465, 474, 477
Art 11 ��839 Preamble��474, 475
Convention for the Conservation of Antarctic Art III.2 and 3�� 477
Seals 1972, 1080 UNT 165�� 476 Art III.4.c��481
Convention on the Prevention of Marine Convention on the Conservation of European
Pollution by Dumping of Wastes Wildlife and Natural
and Other Matters (London habitats 1979� 462, 465, 470, 474–5, 476, 478
Convention) 1972��777, 1174, 1177, 1178 Art 2�� 476
Declaration of the United Nations Conference Convention on the Conservation of
on the Human Environment 1972 Antarctic Marine Living Resources
(Stockholm Declaration) ��152, 168, 655, 1980�� 839, 849
1050–1, 1172, 1174, 1175 African Charter on Human and Peoples’ Rights
Principle 1�� 1051 1981�� 1055
Principle 21�� 401, 1176 Art 24��1054
Agreement on the Conservation of Polar Bears United Nations Convention on the Law of the
1973 �� 476 Sea 1982, 1833 UNTS 397�� 168, 228, 448,
Convention for the Prevention of Pollution from 848–9, 880, 1168, 1170, 1179, 1181
Ships (MARPOL) 1973 �� 175, 228, 1168 Art 193�� 848
Convention Establishing a Permanent Pt XI and Agreement relating to the
Inter-State Drought Control Committee implementation of Part XI of the of
for the Sahel 1974�� 450 10 December 1982 (1994)�� 849
Nordic Convention on the Protection United Nations World Charter for
of the Environment 1974�� Nature 1982��168, 655, 1051–2
Art 3�� 1178 Arts 1–5�� 1051
Athens Convention relating to the Carriage of Protocol Concerning Protected Areas and Wild
Passengers and their Luggage by Sea Fauna and Flora in the Eastern African
1974, 1463 UNTS 20 (amended by Region 1995
Protocol of 2002)��1029 Art 5�� 479
table of legislation xxxvii
ASEAN Agreement on the Conservation of Context 1991, 1989 U.N.T.S. 310

Nature and Natural Resources 1985 (Espoo Convention)��880, 895, 896, 982
Art 7�� 450 App II�� 889
Vienna Convention on the Protection of the App V��895
Ozone Layer 1985 �� 307, 572 Protocol on Environmental Protection to the
Basel Convention on the Control of Antarctic Treaty 1991�� 839, 880, 887
Transboundary Movements of Art 5��895
Hazardous Wastes and their Disposal Annex I, Arts 2, 3, 8(1)��887
1989, 1673 UNTS 57��167, 307, 619–20, App V��895
733, 1028, 1169 Protocol of 1992 to amend the International
Art 4(1) ��619 Convention on Civil Liability for Oil
Arts 4(2)(f), 4(3)�� 620 Pollution Damage 1992, 1956 UNTS 255
Art 4(6)��619 (amended by Protocol of 2000)��1027
Arts 4(7)(b) and 9(1)–(4) �� 620 United Nations Convention on Biological
Convention for the Protection of the Natural Diversity 1992, 1760 UNTS 79��168,
Resources and Environment of the 308, 316, 346, 434, 444, 446, 448,
South Pacific Region 1986�� 470 456, 463, 464–8, 470, 474, 475,
Joint Protocol relating to the application of the 477, 478–9, 481, 487, 848,
Vienna Convention and the Paris 850, 892, 894, 1171
Convention 1988, 1672 UNTS 293��1027 Preamble�� 446, 461, 465
San Salvador Protocol to the American Art 1�� 446
Convention on Human Rights 1988 ��1054 Art 2��446, 456, 464, 467, 850
Art 11 ��1054 Art 7�� 477
Convention on Civil Liability for Damage Art 8��463, 464, 467
Caused during Carriage of Dangerous Art 8(c) �� 480
Goods by Rail, Road, and Inland Art 8(h)��481
Navigation Vessels 1989 ��1028 Art 9�� 463, 464
Montreal Protocol on Substances that Deplete the Art 14�� 880
Ozone Layer 1989�� 553, 572–3, 1169 Art 15.1�� 465
International Labour Organization, Art 25�� 477
Convention No. 169, Convention Art 28�� 446
concerning Indigenous and Tribal Annex I�� 464
Peoples in Independent Annex 1(2)�� 477
Countries 1989��106, 281, 290, 1167 Protocols�� 446
Montreal Protocol on Substances that Deplete Nagoya Protocol on Access to Genetic Resources
the Ozone Layer 1989 ��307 and the Fair and Equitable Sharing of
North American Free Trade Benefits Arising from their Utilization
Agreement 1989��126 (ABS) to the Convention on Biological
Bamako Convention on the ban on the Diversity Article 15 and Annex�� 465
Import into Africa and the Control Rio Declaration on Environment and
of Transboundary Movement Development 1992�� 168, 257, 466,
and Management of Hazardous 655–6, 657, 658, 659, 661,
Wastes within Africa 1991�� 620 662, 663, 880, 906,
Alpine Convention 1991�� 450 1087, 1172, 1174, 1175
Art 2(1)�� 450 Principle 2��401, 655, 894
Protocol for the Implementation of the Principle 3�� 466, 6556
Alpine Convention of 1991 in the Field Principle 4��444, 656
of Soil Protection 1991�� 450 Principles 6 and 7�� 444
Art 1(2)�� 450 Principle 10��656, 733, 978–88, 1063
Convention on Environmental Principle 11 ��655, 659
Impact Assessment in a Transboundary Principle 15 �� 512, 656, 660
xxxviii table of legislation
Principle 16�� 224, 426, 656, 906 Annex II, Art 4(1)(h)�� 445
Principle 18��655, 657 Annexes III-IV�� 445
Principle 19��655 Annex V, Art 2(b)�� 445
Principle 27��655 Agreement on Subsidies and
United Nations Conference on Environment Countervailing Measures
and Development Non-legally Binding (the SCM Agreement) 1995 �� 910, 911
Authoritative Statement of Principles for Art 1.1(a)(1)(ii) �� 911
the Management, Conservation and Art 1.1.(b)�� 911
Sustainable Development of All Types of Art 3�� 911
Forests 1992 (Statement of Forest Art 5�� 911
Principles 1992) ��443, 444 Arts 8.1, 8.2�� 911
Principles 2(b), 8(b )` �� 443 Art 31�� 911
United Nations Framework Convention Agreement for Cooperation for the Sustainable
on Climate Change 1992�� 72, 240, Development of the Mekong River
269, 316, 444, 446–7, 448, 500, Basin 1995�� 431
545, 569, 572, 573, 660, 773, Convention to ban the importation into Forum
774, 788, 979, 1080, 1163, island countries of hazardous and
1171, 1175, 1180 radioactive wastes and to control the
Preamble�� 447 transboundary movement and
Art 3�� 447 management of hazardous wastes within
Art 3(3)��660 the South Pacific Region 1995 (Waigani
Art 6�� 979 Convention) 2161 UNTS 91, 620
UNECE Convention on the Protection and Use Agreement on the Application of Sanitary
of Transboundary Watercourses and and Phytosanitary Measures 1995
International Lakes 1992, 1936 UNTS 269 (WTO) ��481
Art 16�� 979 Protocol concerning Specially protected
Convention on Civil Liability for Damage Areas and Biological Diversity in
Resulting from Activities Dangerous the Mediterranean 1995�� 470
to the Environment 1993 (Lugano Convention on the Protection of
Convention)��1038 the Alps 1996 �� 470
Art 2(7) ��1038 International Covenant on Civil and
ILO Convention on the Prevention of Political Rights 1996 ��1050, 1174
Major Industrial Accidents 1993, International Covenant on Economic, Social
1967 UNTS 231 and Cultural Rights 1996 ��1050
Arts 15 and 16 �� 979 International Convention on Liability and
Southern Bluefin Tuna Convention 1993 Compensation for Damage in Connection
Art 6��777 with the Carriage of Hazardous and
Agreement on Trade-Related Aspects of Noxious Substances by Sea 1996 ��1028
Intellectual Property Convention on Supplementary Compensation
Rights 1994�� 526–7, 528, 529 for Nuclear Damage 1997��1027
Art 27.3(b)��528, 529 Declaration of Thessaloniki
United Nations Convention to Combat (UNESCO) 1997��955
Desertification in Countries Kyoto Protocol to the Framework Convention on
Experiencing Serious Drought and/ Climate Change 1997�� 75, 269, 316,
or Desertification, Particularly 447, 456, 536, 537, 541, 545,
in Africa 1994�� 440, 444, 445, 571, 1163, 1180, 1181
448, 456, 458 Preamble, paras 2, 4�� 456
Art 1�� 445 Art 2(a)(iii)�� 5447
Art 1(f)��440 Arts 3, 5�� 447
Arts 8 (c) (f), 19(e)�� 456 United Nations Convention on the Law of the
Art 10(i)(d)�� 445 Non-Navigational Uses of International
Annex I�� 445 Watercourses 1997��432
table of legislation xxxix
Protocol to amend the Vienna Convention on International Convention on Civil Liability for
Civil Liability for Nuclear Damage 1997, Bunker Oil Pollution Damage 2001��1027
2241 UNTS 270��1027 Stockholm Convention on Persistent
Art 1(i)(k) ��1028 Organic Pollutants 2001�� 307, 592
Aarhus Convention on Access to Information, Annex A ��592
Public Participation in Decision-making ASEAN Agreement on Transboundary Haze
and Access to Justice in Environmental Pollution 2002 ��400
Matters 1998, 2161 UNTS 447 ��155, UN World Summit on Sustainable Development,
192, 208, 209, 210, 355, 368, 369, Johannesburg Declaration on Sustainable
370, 734, 803, 896, 982–3, 984, Development 2002��662, 1175
985–8, 1049, 1063, 1077, 1087, Protocol on Civil Liability and Compensation
1089, 1168, 1178, 1170 for Damage Caused by the Transboundary
Preamble Effects of Industrial Accidents on
paras 3, 6�� 986 Transboundary Waters to the 1992
para 16�� 987 Convention on the Protection and Use
Recitals�� 733 of Transboundary Watercourses and
Art 2(3), paras (a)-(c)�� 987 International Lakes and to the 1992
Art 3�� 733 Convention on the Transboundary Effects
Art 3(4) �� 982 of Industrial Accidents 2003 ��1028
Art 3(7) ��983 International Convention for the Control and
Art 4�� 734, 987 Management of Ships’ Ballast Water
Art 5�� 734, 987 and Sediments 2004 ��481
Art 5(3)�� 987 Art II(1)��481
Art 9��370, 733 International Treaty on Plant Genetic Resources
Art 9(2)�� 1178 for Food and Agriculture, Food
Art 10(5) �� 982 and Agriculture Organization 2004��529
Art 15�� 987 Art 9��529
Art 19(3)��983 Rotterdam Convention on the Prior Informed
Rotterdam Convention on Prior Informed Consent Procedure for Certain
Consent 1998 ��307 Hazardous Chemicals and Pesticides
Convention for the Unification of Certain in International Trade 2004�� 591
Rules Relating to International Carriage Framework Convention on the Protection
by Air 1999, 2242 UNTS 309 (Montreal and Sustainable Development of
Convention)��1028 the Carpathians 2006��471
Protocol to the 1979 Convention on United Nations Declaration on the Rights of
Long-Range Trans-boundary Air Indigenous Peoples 2007��111, 457–8, 892
Pollution on the Reduction of Millennium Assessment 2008 �� 434
Acidification, Eutrophication and ASEAN Agreement on Transboundary Haze
Ground-Level Ozone 1999�� 405 Pollution 2009��303
Cartagena Protocol on Biosafety to the Bonn Declaration 2009��955, 956
Convention on Biological Diversity Kiev Protocol to Pollutant Release and Transfer
2000, 2226 UNTS 208��167, 512, 514, Registers 2009, 26 UNTS 119�� 990–1
519, 520, 1028 Art 4��991
Art 1�� 512, 661 Art 7, 7(5) and (6)��991
Art 18(2)��524 International Convention on Liability and
Art 27��1028 Compensation for Damage in Connection
Convention for the Protection of the with the Carriage of Hazardous and
Marine Environment and the Noxious Substances by Sea 2010��1028
Coastal Region of the Mediterranean Nagoya-Kuala Lumpur Supplementary Protocol
2000, 1102 UNTS 27 (EU Natura on Liability and Redress to the Cartagena
2000)��467, 473 Protocol on Biosafety 2010��1028
Millennium Declaration 2000��425 Art 12��1028
xl table of legislation
Tirana Declaration 2011�� 442 Civil Code

ASEAN Human Rights Declaration Art 1757 2015��1030
2012 ��1054 Arts 1758 2015��1030
Art 28��1054 Decree-law 18.594/70�� 466
Minamata Convention on Mercury 2013 Law on Seeds and Phytogenetic Creations [Ley
Art 4(1) ��777 de Semillas y Creaciones Fitogéneticas
World Soil Charter 2014 �� 451 [L.S.]], Ley 20247, Boletin Oficial [B.O.], 30
Paris Agreement 2015�� 178, 186, 240, 269, March 1973�� 514
316, 411, 447–8, 853, 1110, 1163 Ley No. 24.295, 11 de enero de 1994, [LIV-A]
Art 2��447–8 A.D.L.A. 1994��536
Art 9�� 29 Ley No. 25.438, 20 de junio de 2001 [LXI-D]
United Nations Sustainable A.D.L.A. 4022��536
Goals 2015�� 425, 443, 446, 451–3, Ley No. 26.190, B.O. 2.1.2007
492, 848, 995, 956, 957 (Framework for the National
Goal 2�� 443 Promotion for the Production
Goal 4��957 and Use of Renewable Sources
Goal 14.5 �� 848 of Electric Energy)��536
Goal 15�� 452, 453, 458 Law on the Promotion of the Development
IUCN World Declaration on the Environmental and Production of Modern Biotechnology
Rule of Law 2016 �� 98, 663 [Ley de Promoción del Desarrollo y
Agreement for Cooperation Between the Producción de la Biotecnología
Government of the United States of Moderna [L.B.], Ley 20270, B.O,
America and the Government of India 25 July 2007�� 514
Concerning Peaceful Uses of Nuclear Ley No. 26.331, 19 de diciembre de 2007
Energy (123 Agreement) 2016 �� 570 [LXVIII-A] A.L.D.A (Minimum Standards
African Convention on the Conservation for the Environmental Protection of Native
of Nature and Natural Forests)��536
Resources 2017��450–1 Ley No. 25.675, B.O. 28.11.2002 (General
Art V 1�� 450 Environmental Act)��536
Art II �� 450 s 27��1031
Art III��450–1 Ley No. 27.191, B.O. 21.10.2015��536
Art VI�� 451 Buenos Aires Law 14,343
Escazu Agreement on Access to Art 3��633
Information, Participation and
Regulations
Justice in Environmental Matters
Decreto No. 822/1998. 34 ��536
in Latin America and the
Decreto No. 2213/2002 (Designating Secretary
Caribbean 2018��1063
of the SAyDS Implementing
United States-Mexico-Canada
Authority for Law No. 24.295
Agreement 2018��126
(UNFCCC ratification)��536
Decreto No. 1070/2005. 35 ��536
Resolution No. 98/2007 and 1973/2007 issued
Domestic Instruments by the Secretariat of Finance and the
Secretariat of Environment and
Angola Sustainable Development��641
Legislation Consejo Federal del Medio Ambiente,
Constitution of the Republic of Angola 1992 Resolución No. 166 de 1 de april
Art 24�� 463 de 2009��536
Resolución No. 195 de 4 de septiembre
Argentina de 2010 ��536
legislation Australia
Constitution of Argentina 1853 Legislation
Art 41��463, 536 Constitution of Australia��435
table of legislation xli
Forestry Act 1920 (Tas) Protection of the Environment Administration

s 7��71 Act 1991 (NSW)
s 8(1)(c) ��71 s 6��723
Soil Conservation Act 1938 (NSW)�� 439, 456 s 6(2) ��659, 664
Soil and Land Conservation Act s 6(2)(a)��661
1945 (WA)�� 456 s 6(2)(d)�� 659
Environment Protection Act 1970 (Vic) s 6(2)(d)(i)��739
s 1A(3) �� 67 Development Act 1993 (SA)
ss 1C and 1D �� 67 s 3(c)��71
ss 1G, 1H and 1L �� 67 Environment Protection Act
s 4(1)�� 66 1993 (SA)��611, 614
s 16�� 67 ss 4(2), 4A��614
s 39(1)�� 66 ss 36–47�� 611
s 39(2)�� 66 s 64A �� 611
Environment Protection (Impact of Pt 8�� 617, 622
Proposals) Act 1974��61 Sch 1�� 611
National Parks and Wildlife Act 1974 Environment Protection Act
(NSW)��68, 69 1994 (Qld)��64, 67–8
s 30A(1)�� 69 s 3�� 68
s 41�� 69 s 5�� 68
s 45(1)(a) �� 69 s 8�� 67
s 98(2)(a)�� 69 s 9�� 67
s 118A(1) and (2)�� 69 s 14�� 67
s 118C(1)�� 69 ss 15–17�� 67
s 151�� 69 s 121(1)(f)�� 64
Pt 9�� 69 s 493A �� 67
Administrative Decisions (Judicial Review) s 505(1)��77
Act 1977 (Cth) Aircraft Noise Levy
s 5�� 896 Act 1995��916–17
Environmental Planning and Assessment Threatened Species Conservation Act 1995
Act 1979 (NSW)�� 79 Pt 7AA�� 486
s 5(a)(vii)��71 Contaminated Land Management
s 85A�� 741 Act 1997 (NSW)
s 85A(3)�� 741 s 5�� 637, 641
s 112(1)(a)�� 76 s 5(1)��635
Pt 4A �� 741 s 6��633
Freedom of Information Act 1982 (Cth)��734 Pt 4�� 740
World Heritage Properties Conservation Environment Protection
Act 1983 (Cth)��62, 63 Act 1997 (ACT) �� 745–6
Environmental Protection Act 1986 (WA) s 74�� 76
s 3��633 Rural Fires Act 1997 (NSW)��744
Planning and Environment Act 1987 (Vic) ss 100Q-100R ��744
s 4(1)��72 Protection of the Environment Operations
s 6(1)��72 Act 1997 (NSW)�� 612, 613, 727–8, 974
s 12(2)��72 s 72��739
Wilderness Act 1987 (NSW)��68–9 ss 91, 95, 96, 101, and 104��77
s 9�� 69 ss 115, 116, 142A, 143–145 ��612
Crown Lands Act 1989 (NSW) s 175 �� 740
s 11�� 70 s 250 (1)(d)�� 740
s 11(a), (b) and (e)��71 Pt 6.3 �� 740
Water Act 1989 (Vic) Ch 3 ��612
s 1 �� 64 Sch 1, paras 9, 12, 16, 34, 36, 39, 40,
s 32A(1) ��65 41, 42, 47, and 48��612
xlii table of legislation
Environmental Planning and Assessment Heritage Act 2011 (NT)

Act 1999 (NSW) s 3(1)(a) �� 70
s 79C(1)(e)�� 664 s 10�� 70
Environment Protection and Biodiversity s 11�� 70
Conservation Act 1999 (Cth)��61, s 12(1)�� 70
64, 894, 897, 1169 ss 17 and 18 �� 70
s 3A(a), 3A(e) �� 659 s 139(3)�� 70
ss 12–55��883 Pt 3.1. �� 70
s 24D �� 64 Pt 3.2. �� 70
s 85�� 886 Forestry Act 2012 (NSW) ��727
s 134 ��895 Environment Protection and Biodiversity
ss 137–140�� 894 Conservation Amendment Act 2013 (Cth)
s 487(2) �� 897 Sch. 1 �� 64
Renewable Energy (Electricity) Act 2000 (Cth) Biodiversity Conservation Act 2016
ss 1(c), (e), (g), (h), and (i) ��74 s 6.10–6.13�� 741
s 3��74 s 6.17�� 741
s 17 (1), (2), (3), and (4)��74 s 6.19�� 741
Sch. 1 ��74 Pt 5, Div 3 and 4��744
Water Act 2000 (Qld) �� 64 Pt 6, Div 2, 3 and 4�� 741
Carbon Credits (Carbon Farming Initiative) Waste Avoidance and Resource Recovery
Act 2001 (Cth) Amendment (Container
s 3(2)��75 Deposit Scheme) Act 2016 (NSW) ��745
Waste Avoidance and Recovery Act 2001 Climate Change Act 2017 (Vic) ��75
(NSW)��615, 618, 622, 623 ss 23 and 24��73
s 3(b) �� 615 Environment Protection (Waste Reform)
s 3(e)��622 Amendment Act 2017 (SA) ��614
s 8(1)��622
ss 15–17��623 Regulations
Pt 5��622 Environmental Planning and Assessment
Contaminated Sites Act 2003 Regulation 2000 (NSW)
(WA)��635, 637, 641 cl 6(f)��742
s 4 �� 633, 635 cl 85B��734
Legislation Act 2003 (Cth) ��723 cl 273��742
Petroleum and Gas (Production and Safety) Pt 8�� 741
Act 2004 (Qld) Environment Protection and Biodiversity
s 3(1)(a) �� 63–4 Conservation Regulations 2000,
Offshore Petroleum and Greenhouse Gas Statutory Rules No. 181, 2000
Storage Act 2006��74–5 Sch. 4, s. 4.01(d)��895
Water Act 2007 (Cth)��65, 435 Threatened Species Conservation (Biodiversity
s 9��65 Banking) Regulation 2008�� 486
s 21 ��435 Protection of the Environment (Waste)
s 35 ��65 Regulation 2014��618
s 36��65 Cl 71��618
Government Information (Public Access) Administrative Arrangements Order 2015 (Cth)
Act 2009 (NSW) ��734 Pt 7 �� 726
Carbon Credits (Carbon Farming Initiative) Administrative Arrangements (Administrative
Act 2011��74 Changes—Public Service Agencies)
Clean Energy Regulator Act 2011 (Cth)��722 Order (No. 2) 2015 (NSW)�� 726
s 11(1) ��722 Administrative Arrangements
s 12 ��722 (Administrative of Acts—General)
s 13 ��722 Order 2015 (NSW) �� 726
table of legislation xliii
Administrative Arrangements (Administrative Water Code 1934��85

Changes—Public Service Agencies) Criminal Code, Código Penal, Decreto-Lei No.
Order (No. 2) 2015 (NSW)�� 726 2.848, de 7 de dezembro de 1940��85
Australia New Zealand Food Standards Forest Code, Lei No. 4.771, de 15 de setembro de
Code 2016��514, 523 1965 (superseded by Lei No. 12.651,
de 25 de maio de 2012��90, 93, 94, 96
Austria Art 3, IV and 4 �� 96
Hunting Code, Lei No. 5.197, de 3 de janeiro de
Legislation 1967 �� 90
Civil Code Mining Code, Decreto-Lei No. 227, de 28 de
§ 364a�� 1032 fevereiro de 1967 �� 90
§ 1032��1034 National Environmental Policy Act, Lei No.
§ 1295��1029 6.938, de 31 de agosto de 1981��90–2, 639
§ 1326��1036 Art. 3, and Art 3, I, 3, III, 3, V,
Gene-technology Act Art. 3, IV��91
§ 79a–79m��1030 Arts 8, II and 9, III�� 92
Wasserrechtsgesetz (Water Law) Art 14�� 91, 92, 1039
§ 26��1030 Art. 14, § 1��91, 1031
§ 26(5) �� 1035 Public Civil Action Act, Lei No. 7.347, de 24 de
julho de 1985��90, 101
Belgium Art 5��1039
Art 13��1039
Legislation
Fauna Protection Act, Lei de Proteção à Fauna,
Civil Code
1988 (renaming Hunting Code)�� 90
Art 1384(1)��1030
Lei No. 7.735, de 22 de fevereiro de 1989 �� 99
Decree of the Flemish Parliament of 27 October
Art 2�� 99
2006, relating to soil clean-up and
Consumer Protection Code
soil Protection,
(Law 8078/1990)��1030
as amended�� 643
Biosafety Law, No. 8.974 of
Walloon Soil Management Decree,
5 January 1995�� 517
5 December 2008��633, 637, 641
National Water Resources Policy Act, Lei da
Política Nacional de Recursos Hídricos,
Bolivia Lei No. 9.433, de 8 de janeiro
Legislation de 1997��85, 97, 426
Decree-Law 12301, on wildlife, national Environmental Crimes Act, Lei dos
parks, hunting and fishing Art 2��474 Crimes contra o Meio Ambiente,
Law of the Rights of Mother Earth 2010�� 1060 Lei No. 9.605, de 12 de fevereiro
Framework Law of Mother Earth and de 1998�� 85, 97, 1130
Integral Development for Arts 2, 22, 29–69��97
Living Well 2012�� 1060 Art 54(3) ��674
Ch V��97
Federal Constitution, Constituição da
Brazil
República Federativa do Brasil
Legislation de 1998��84–5, 87, 94, 102–3, 106, 675
Constitution of Brazil Art 5, LXXIII�� 89
Title II, Ch I, Art 5, para 73��1078 Art 20�� 84
Tiutle VII, Ch 6, Art 225��1078 Art 20, § 1 �� 84
Civil Code 2002 ��1030 Art 20, III and IX�� 84
§ 927��1029, 1030 Art 23�� 86
§ 936, 937, 938��1020 Art 24, VI ��85, 93
§ 1277�� 1032 Art 26�� 84
xliv table of legislation
Art 41��637 Forest Code of the State of Minas Gerais, Lei

Art 103–A ��102 Estadual No. 20.922, de 16 de outubro
Art 105, III�� 101 de 2013 ��85, 93
Art 127, §§ 2, 3�� 101 Civil Procedure Code of 2015��102
Art 129�� 101
Regulations
Art 129, caput, III�� 89
Environmental Impact Assessment (CONAMA
Art 170, cl. VI�� 89
Regulation No. 1 of 1986 and
Art 174, § 3�� 89
No. 237 of 1997) �� 92–3
Art 176 �� 94
Art 2, 3, and 8�� 92
Art 186, II �� 88
Art 2, Annex 1�� 92
Art 200, cl. VIII �� 89
Art 9��93
Art 216, cl. V�� 89
Decreto No. 4.680, de 24 de Abril
Art 220, § 3, cl. II �� 89
de 2003 �� 523
Art 225��105, 518, 674
Normative Resolution No. 5, of
Art 225, caput��85, 87
12 March 2008 �� 158
Art 225, para 1��87
Art 20, para 2 �� 518
Art 225, para 4��105
Decreto No. 6.660, de 21 de novembro
Art 231, § 1�� 88, 89
de 2008�� 96
Lei No. 9.985, de 18 de julho de 2000�� 96
National Environmental Council Resolution
Art 21�� 96
No. 420/2009��633, 641
Civil Code, Código Civil, Lei No. 10.406, de 10
Decreto Nº 7.390, de 9 de Dezembro
de janeiro de 2002��85, 104
de 2010 ��534
Art 1228, § 1��104
Decreto No. 7.819, de 3 de October
Biosafety Law, No.11, 105 of 24 March 2005 �� 518
de 2012�� 560
Art 1��674
Decreto No. 8.437, de 22 de abril de 2015
Lei No. 11.428, de 22 de dezembro
Art. 3, caput, VI �� 86
de 2006 ��96
Lei No. 11.516, de 28 de agosto de 2007�� 100
Art �� 100
Canada
Environmental Code of the State of Santa Legislation
Catarina, Lei 14.675, 2009��85 Constitution Act, 1867, 30 & 31 Vict., c. 3 �� 693
Lei Nº 12.187, de 29 de Dezembro de 2009, s 91, 92�� 908
Diário �� 97, 534 s 91(2A), 91(10), 91(12), (24), 92(8), (10),
National Solid Waste Act, Lei No. 12.305, de 2 de (13), (16), 92A, and 109 ��112
agosto de 2010 �� 98, 622 Charter of Human Rights and Freedoms,
Arts 3 and 6��622 CQLR, c. C-12
Complementary Act 140, Lei Complementar s 46.1
No. 140, de 8 de dezembro de 2011 �� 100 Constitution Act, 1982 (Sch. B to the Canada
Art 3�� 86 Act 1982 (UK) c. 11
Arts 7, 8, 9 and 13 �� 86 s 35 �� 110
Forest Code, Código Florestal, Lei No. 12.651, Canada Oil and Gas Operations Act, RSC 1985,
de 25 de maio de 2012�� 85, 88, 93–6, c. O-7
99, 103, 104, 105 s 2.1��120
Art 4, III and 4, § 2�� 99 Food and Drugs Act, RSC, 1985, c.F-27�� 523
Art 12��95 National Energy Board Act, RSC 1985, c. N-7
Arts 29–30��95 s 48.11��120
Art 61–A, § 14�� 99 Environmental Rights Act, RSNWT 1988, c. 83
Art 70, I-III�� 9 (Supp), (Northwest Territories)
Lei No. 12.805, de 29 de Abril de 2013, Diário s 5��126
Oficial da União [D.O.U.], Seção 1, Environmental Protection Act, RSO 1990, c.
30.04.2013 �� 551 E.19, s. 14 (Ontario)��115
table of legislation xlv
Civil Code of Quebec, CQLR c. CCQ-1991�� 118 Environmental Goals and Sustainable

ss 976, 1457, 1465�� 118 Prosperity Act, SNS 2007, c. 7
Canadian Environmental Assessment (Nova Scotia)��121
Act 1992 c. 37 Carbon Tax Act, 2008 S.B.C, ch. 40 (British
s 16�� 889 Columbia)�� 540–1, 548, 920, 921–2
Ontario Environmental Bill of Rights, Federal Sustainable Development Act,
SO 1993, c. 28 ��113 SC 2008, c. 33�� 121, 823, 827
s 84��126 ss 9–11��823
Migratory Birds Convention Act, 1994, Environmental Enforcement Act,
SC 1994, c. 22 SC 2009, c. 14��120
s 13.09��120 Toxics Reduction Act, 2009, SO 2009,
Environment Act, SNS 1994–95, c. 1, c. 19 (Ontario) ��115
(Nova Scotia) Environmental Enforcement Act, SC 2009, c. 14�
s 2��120 120
Mackenzie Valley Resource Management Toxics Reduction Act, 2009, SO 2009,
Act, SC 1998, c. 25 (Northwest c. 19 (Ontario) ��115
Territories) �� 116 Canadian Environmental Assessment
Canadian Environmental Protection Act, Act, 2012, SC 2012, c. 19�� 884, 888
1999, SC 1999, c. 33��537, 560, 591, 610 s 2�� 890
s 2�� 890 s 2(2)�� 898
s 2(1)��120 s 4(2) ��120
s 22��126 s 38(2)��891
ss 64–103��115 s 43(1)��891
s 71�� 591 s 52��116, 120, 883
s 76.1��120 s 53(4)(b)��895
s 93��592 s 54, 93��895
s 287��120 s 86(1)(a)��893
Pt 7��610 Nunavut Planning and Project Assessment
Environment Act, RSY 2002, c. 76, Act, SC 2013, c. 14
(Yukon Territory) s 2�� 116
s 8��126 Protection of Public Participation Act, 2015,
Pest Control Products Act, SC 2002, c. 28 SO 2015, c. 23 (Ontario) �� 119
ss 7, 19��120 Resource Recovery and Circular Economy Act,
s 20��120 2016, SO 2016, c. 12, Sch. 1 (Ontario) ��115
Species at Risk Act, SC 2002, c. 29 Cutting Unnecessary Red Tape Act, 2017,
s 38��120 SO 2017, c. 20 (Ontario) ��115
Act to amend the Criminal Code (criminal
liability of organizations), Regulations
S.C. 2003, c. 21 �� 125 Agreement between the Inuit of the Nunavut
Yukon Environmental and Socio-Economic Settlement Area and Her Majesty the
Assessment Act, SC 2003, c. 7 �� 116 Queen in Right of Canada
Environmental Management Act 2003 (25 May 1993)�� 110
s 39��633 Code of Civil Procedure, CQLR c. C-25.01
ss 45–47��637 (Quebec)
s 56��641 ss. 51–56�� 119
Div 3��637 Order Adding Toxic Substances to Schedule 1 to
Emission Reduction Incentives Agency Act, the 1999 Canadian Environmental
S.C. 2005, c. 30 Protection Act, SOR/2005–345 �� 537
s 87�� 537 Passenger Automobile and Light Truck
Endangered Species Act, SO 2007, c. 6, (Ontario) GHG Emissions Regulations,
s 11(3)��120 SOR/2010–201 �� 537, 560
xlvi table of legislation
Prohibition of Certain Toxic Substances Air Pollution Prevention and Control Law of
Regulations, SOR/2012–285��592 PRC 1988�� 411
Schs 1, 2��592 Environmental Protection Law of
Reduction of Carbon Dioxide Emissions from PRC 1989��134, 138, 143, 519
Coal-fired Generation of Electricity Basic Law of the Hong Kong Special
Regulations, SOR/2012–167�� 537 Administrative Zones 1990
Heavy-duty Vehicle and Engine Greenhouse Gas Art 19�� 139
Emission Regulations, SOR/2013–24 560 Basic Law of the Macao Special Administrative
Regulations Amending the Passenger Zones 1993
Automobile and Light Truck Greenhouse Art 19�� 139
Gas Emission Regulations, Air Pollution Prevention and Control Law of
SOR/2014–207�� 537 PRC 2000�� 411, 412, 413
Arts 18, 32–85 �� 411
Chile Environmental Impact Assessment
Law of PRC 2003
Legislation
Art 5��891
Ley No. 20.283, 11 de julio de 2008, Diario
Art 10�� 888
Official [D.O.], sobre Recuperación del
Arts 13, 14��893
Bosque Nativo y Fomento Forestal [Law of
Art 15��895
Recuperation of Native Forest and
Art 16��887
Promotion of Forests]�� 551
Constitution of People’s Republic of
Ley No. 20–936, de 20 de julio de 2016, Diario
China 2004��139, 411
Official [D.O.], establece un Nuevo Sistema
Art 2��131
de Transmisión Eléctrica y crea un
Art 6�� 130–1
Organismo Coordinador Independiente
Art 9��130
del Sistema Eléctrico Nacional
Art 26��130
[establishing a New System of Electricity
Art 85�� 137
Transmission and Creating an Independent
Art 125��140
National Electricity Coordinating
Art 126�� 139
Authority]��563
Art 127��140
Renewable Energy Law of the People’s Republic
China of China 2006, amended 2010�� 552
Legislation Circular Economy Promotion Law 2008 �� 624
Basic Law of the Hong Kong Special Prevention and Control of Water Pollution of
Administrative Zones 1990 Law of PRC 2008
Civil Procedure Law ��132, 136 Art 20�� 426
Criminal Law �� 132, 135 Arts 29–30��423
s6, Ch 6�� 132 Tort Law of 26 December 2009 (decree of the
Criminal Procedure Law��132, 136 President of the People’s Republic of
General Rules of Civil Law��132, 135–6 China No. 21)��1029
Law on Administrative Litigation ��132, 136 Art 65��1031
Law on Administrative Punishment��132, 136 Art 66�� 1031, 1035
Law on Public Servants of PRC ��146 Art 67��1034
Law on Supervision over Administration Ch VIII ��1031
of the PRC��146 Ch IX��1030
Legislation Law�� 134 Law of Mongolia on Water 3.1.19 (2012) ��423
Property Law��132, 136 Environmental Protection
Environmental Protection Law of Law of PRC 2014��132, 133–5, 137,
PRC 1979�� 134 138, 144, 146, 398
Art 5�� 820 Ch 1–6��135
Organic Law of the People’s Courts 1983��140 Ch 5 ��144, 416
Arts 2, 7, 12 and 13��140 Arts 2–6 and 10��135
table of legislation xlvii
Art 9, para 3 ��144 Denmark

Art 13�� 820
Legislation
Art 13, para 2��823
Soil Contamination Act, Consolidated
Art 13, para 4��827
Act no. 1427��633, 641
Art 27��144
ss 41 and 48��637
Art 58�� 135, 141, 144
Air Pollution Prevention and Control
Law of PRC 2016�� 398, 411–13, 414, 416 Dominican Republic
Art 1��412
Pesticides Control Amendment Act �� 1169
Art 2��412
Water and Sewerage Act �� 1169
Art 4��412
Art 19��412
Art 21��412 Ecuador
Art 32�� 413 Constitution of the Republic of
Art 44��412 Ecuador 2008�� 1060, 1062
Art 99��412
Art 102��412
Wildlife Protection Law of the People’s Egypt
Republic of China 2016�� 463 Legislation
Art 3��474 Law No. 4 of 1994 (Environmental Law)
Regulations Article 1(7)�� 633, 637
Regulations on Administration of
Agricultural Genetically Modified European Union
Organisms Safety, promulgated by
Treaties
State Council, 23 May 2001, revised
European Coal and Steel
8 January 2011�� 519
Community 1952��151
GB 27999–2011 (imposing per-vehicle emissions
EURATOM Treaty 1957�� 206
limits and corporate average fuel
Treaty of Rome 1957��151, 1177
consumption standard)�� 560
Art 100�� 152
GB XXXXX-2016, Fuel consumption limits
Art 164��164
for heavy-duty commercial vehicles
Art 235�� 151, 151
[Stage 3] (4 April 2016)�� 560
Accession Treaty 1972�� 498
Art 102�� 498
Costa Rica Single European Act 1986��152, 691, 1085
Arts 2–3��153
Legislation
Art 25�� 152
Constitution of Costa Rica
Art 130 r-t �� 152–3
Art 7�� 1166
Treaty of Maastricht 1992 ��153, 691
Law 7317, on the conservation of wildlife
Treaty of Amsterdam 1997�� 153, 1140
Art 3��474
Arts 2–3��153
Regulations Art 12��658
Measures for the Accountability of the Party and EU Charter of Fundamental
Government Leading Cadres in the Rights 2000��1055, 1153
Ecological Environment Damage (for Trial Art 17(1)��485
Implementation, 2015) �� 145 Art 37�� 658, 672, 1055
Art 52(5)��672
Treaty of Lisbon 2007�� 151, 153, 502, 1055, 1085
Czech Republic
Treaty on European Union 2012��153, 658
Legislation Recital 9��658
Constitution of the Czech Republic Art 3�� 355
Art 35(2)��1078 Arts 3(3), (5), 21(2)��658
xlviii table of legislation
Art 5��540, 853 EC Directive 78/319 on toxic and dangerous

Art 5, paras 3 and 4 ��691 waste, OJ 1978 L 84/43�� 152
Art 6�� 172 EC Directive 78/1015 on the permissible sound
Art 19(1)��164 level and exhaust system of motorcycles
Treaty on the Functioning of the European OJ 1978 L 349/21�� 152
Union 2012�� 153, 499, 658, 909 Council Directive 79/409/EEC of 2 April 1979
Art 2(1), 3(1)(d), 4(1), (2)(d)��496, 499 on the conservation of wild birds [1979]
Art 3(3)��164 OJ L103/1 (now consolidated as Directive
Art 11 �� 154, 658 2009/147/EC of the European Parliament
Art 14��196–7 and of the Council of 30 November 2009
Art 19(1)��153 on the conservation of wild birds [2010]
Art 34�� 694 OJ L20/7) and Council Directive 92/43/
Art 35�� 694 EEC of 21 May 1992 on the conservation
Art 38�� 499 of natural habitats and of wild fauna
Art 43(3) �� 499 and flora [1992] OJ L206/7��434, 462–3,
Art 101��1156 840, 849, 1085
Art 107, 108�� 908 Art 1�� 463, 464
Art 113 �� 908 EC Directive 82/501 on the major-accident
Art 114��695, 696 hazards of certain industrial activities,
Art 114(5)��865 OJ 1982 L 230/1�� 152
Art 115 ��152, 908 Directive 84/360 /EC on the combating of air
Art 191 �� 152–3, 192, 406, 513 pollution from industrial plants,
Art 191(1)��153 OJ 1984 L 188/20�� 152, 402
Art 191(2)��153, 154, 355, 670, 906 EC Directive 84/631/EC, 20 December 1984 on
Art 191(3)��153 Transfrontier Shipment of Hazardous
Art 191(4)��153 Waste ��619
Art 192�� 152–3, 696, 699 EC Directive 85/210 concerning the lead content
Art 192(1)��153, 661 of petrol, OJ 1985 L 96/25�� 152
Art 192(2)(c)�� 942 EU Council Directive 85/337 on the Assessment
Art 193�� 152–3, 196, 699 of the Effects of Certain Public and Private
Art 258��671 Projects on the Environment, [1985] OJ
Art 263��671 1 175/40, subsequently amended by EC,
Art 267��671 Council Directive 97/11, EC, Council
Art 289��153 Directive 03/35, and EC, Council
Art 352��151, 152 Directive 09/31�� 880, 896, 897, 1087
Art 1(2)(e)�� 890
Directives Art 3�� 890
EC Directive 67/548 relating to the Art 5��887, 889
Classification, Packaging, and Annex 1�� 886
Labelling of Dangerous Substances, Council Directive 85/374/EEC on the
OJ 1967 L 196/1�� 151, 1000 approximation of the laws, regulations
EC Directive 70/157 relating to the Permissible and administrative provisions of the
Sound Level and the Exhaust System of Member States concerning liability for
Motor Vehicles, OJ 1970 L 42/16 ��151, 152 defective products [1985] OJ L210/29, as
EC Council Directive 70/220/EC [1998] OJ amended by Directive 1999/34/EC of the
L350/1�� 197, 403 European Parliament and of the Council
EC Directive 73/404 relating to detergents, OJ of 10 May 1999 [1999]
1973 L 347/51�� 152 OJ L141/20�� 1032, 1103
EC Directive 76/464 on pollution caused by Art 6��1103
certain dangerous substances discharged Art 7(d)�� 1041
into the aquatic environment of the Directive 88/609/EC on the control and
Community, OJ 1976 L 129/23 �� 152 limitation of air emissions from large
EC Directive 77/102, OJ 1977 No. L32 �� 403 combustion plants �� 402
table of legislation xlix
Directive 89/369/EC on the incineration Directive 98/69/EC of the European Parliament

of municipal waste�� 402 and of the Council of 13 October 1998
Directive 89/429/EC on the incineration of relating to measures to be taken against air
municipal waste�� 402 pollution by emissions from motor vehicles
Council Directive 91/676/EEC of 12 December and amending Council Directive 70/220/
1991 concerning the protection of waters EEC [1998] OJ L350/1 �� 197
against pollution caused by nitrates from Directive 98/70/EC relating to the quality of
agricultural sources [1991] OJ L375/1��203 petrol and diesel fuels, OJ 1998 No. L350,
Council Directive 92/43/EEC of 21 May 1992 as amended by Directive 2015/1513/EU, OJ
on the conservation of natural habitats 2015 No. L 239�� 403
and of wild fauna and flora�� 154, Directive 1999/30/EC relating to limit values
160–1, 205, 364, 434, 463, 464, 467, for sulphur dioxide, nitrogen dioxide
471, 472, 478, 486, 635, 698, 849 and oxides of nitrogen, particulate
Art 1(c)(ii)��471 matter and lead in ambient air,
Art 4�� 698 OJ 1999 No. L163 �� 404
Art 4(1) �� 467 Council Directive 1999/31/EC, O.J. (L 182),
Art 6(3) ��845 16.7.1999, (landfill of waste) ��552, 624
Art 6(4)�� 486 Directive 2000/53 [2000] OJ L269/34, on
Art 16�� 486 End-of-Life Vehicles��617, 621
Art 16(1)�� 480 Directive 2000/60/EC of the European
Annexes II, IV and V�� 476 Parliament and of the Council
Directive 94/62/EC of 20 December 1994 establishing a framework for the
on packaging and packaging waste, Community action in the Field of
31.12.1994, OJ L 365/10�� 154, 158–9, Water Policy, OJL 327��159–60, 201–2,
204, 617, 621, 624 207, 361, 423–4, 449,
Art 4(2)�� 472 698, 869, 870
Arts 5 and 7�� 204 Art 1�� 159–60
Arts 9(e)(i) �� 472 Art 1(a), (c)��421
Art 10�� 472 Art 3��873
Directive 94/63/EC on the control of volatile Art 8�� 870
organic compound (VOC) emissions Art 10��201
resulting from the storage of petrol and its Art 11 �� 869
distribution from terminals to service Annex V ��873
stations, OJ 1994 No. L365 403��617 Annex VII, A 2�� 870
Directive 96/59 on the disposal of Directive 2000/69/EC of the European
polychlorinated biphenyls and Parliament and of the Council of 16
polychlorinated terphenyls (PCB/ PCT) November 2000 relating to limit values for
[1996] OJ L243/31, amended in 2009: benzene and carbon monoxide in ambient
[2009] OJ L188/25 ��617 air, OJ 2000 No. L313�� 404
Council Directive 96/61/EC of 24 September Directive 2001/18/EC of the European
1996 concerning Integrated Pollution Parliament and of the Council of
Prevention and Control [1996] 12 March 2001 on the deliberate release
OJ L257/25 �� 198, 199, 207, 402, 863 into the environment of genetically
Art 9�� 207 modified organisms and repealing
Directive 96/62/EC of 27 September 1996 Council Directive 90/220�� 513, 516
on ambient air quality assessment and Art 12(1), (3) ��865
management, OJ 1996 No. L296�� 404, 405 Art 23��865
Directive 98/44/EC of the European Parliament Directive 2001/42/EC on the assessment of the
and of the Council of 6 July 1998 on effects of certain plans and programmes
the legal protection of biotechnological on the environment, OJ L 197,
inventions��528 21/07/2001��156, 884–5, 896, 974
Preamble��528 Art 3(2)(a)��885
Art 3(2) ��528 Arts 6 and 8��885
l table of legislation
Directive 2001/81/EC on national emission EU Directive 2006/21 on the Management of

ceilings for certain atmospheric pollutants, Waste from Extractive Industries and
OJ 2001 No. L309/22��404, 405 amending Directive 2004/35, [2006] OJ
Council Directive 2002/91, O.J. (L 1)��557, 1085 L102��617
Directive 2003/2/EC relating to restrictions Council Directive 2006/40/EC, O.J. (L 161/12),
on the marketing and use of arsenic 12–18, 17.05.2006 (regulating emissions
(tenth adaptation to technical progress from air conditioning systems in motor
to Council Directive 76/769/EEC), vehicles) �� 553
OJ 2003 No. L004 404 Directive 2006/66/EC (6 September 2006) on
Directive 2003/4/EC of the European Batteries and Accumulators��617, 621
Parliament and of the Council of 28 Council & Parliament Regulation (EC)
January 2003 on public access to 2006/1907 concerning the Registration,
environmental information and Evaluation, Authorisation and Restriction
repealing Council Directive of Chemicals (REACH) (precautionary
90/313/EEC��155, 973, 978, 983 principle)�� 670
Directive 2003/35/EC of the European Directive 2008/1/EC of the European Parliament
Parliament and of the Council of 26 May and of the Council of 15 January 2008
2003 providing for public participation in concerning integrated pollution prevention
respect of the drawing up of certain plans and control, Integrated into Directive
and programmes relating to the 2010/75/EU of the European Parliament
environment and amending with regard to and of the Council of 24 November 2010
public participation and access to justice on industrial emissions��339
Council Directives 85/337/EEC Directive 2008/50/EC of the European Parliament
and 96/61/EC��155, 192, 208 and of the Council of 21 May 2008 on
Directive 2003/87/EC establishing a scheme for ambient air quality and cleaner air for
greenhouse gas emission allowance trading Europe�� 162, 178, 360, 404, 405, 698, 777
within the Community and amending Art 4�� 868
Council Directive 96/61/EC, Art 6�� 868
OJ 2003 No. L275 �� 415, 547, 1085 Art 13�� 766
Council Directive 2003/96/EC of 27 October Art 23�� 405
2003 restructuring the Community Directive 2008/56/EC of the European
framework for the taxation of energy Parliament and of the Council of 17 June
products and electricity, 2008 establishing a framework for
2003 O.J. L 283/51�� 908, 912 community action in the field of marine
EC Directive 2004/35/CE of the European environmental policy �� 870–1
Parliament and of the Council on 21 April EC Directive 2008/98/EC on waste and
2004 on environmental liability with repealing certain Directives,
regard to the prevention and remedying 19 November 2008, (22.11.2008)
of environmental damage, 30 April 2004, OJ L 312/3��157–8, 203, 345, 552, 609–10,
OJ L 143/56��154, 156–7, 163, 176, 611, 612, 613, 615, 624, 697, 1123
205, 848, 1040–1, 1095 Recital 30�� 670
Arts 2(1), 8(2)–(4) �� 157 Art 1(5)�� 620
Art 8(3)(b)�� 1041 Art 2��614
Art 12��716 Art 3�� 157
Art 14(2) �� 157 Art 3(1)��362, 613, 1123
Art 16�� 157, 1041 Art 3(12)��617
Annex II �� 1040 Arts 3(13), (15), (16), (17), and (19)�� 615
Arts 5–6�� 848 Art 4�� 158
Annex III�� 1040 Art 4(1)(a)��617
Directive 2004/107/EC relating to arsenic, Art 4(1) �� 615
cadmium, mercury, nickel and polycyclic Art 4(2)��612, 670
aromatic hydrocarbons in ambient air, OJ Art 5(1), 6�� 613
2005 No. L23�� 404 Art 8��621
table of legislation li
Arts 10–20��616 13 December 2011 on the assessment of the

Art 11 �� 698 effects of certain public and private projects
Art 14(1)�� 670 on the environment��154, 156
Arts 14(3) and 15��619 Annex 4, para 7��975
Art 16��618 Directive 2012/19/EU (4 July 2012) on Waste
Arts 17–20�� 620 Electrical and Electronic Equipment ��621
Art 23��610 Council Directive 2012/27, amending Council
Art 29��610, 617 Directives 2009/125 and 2010/30 and
Art 30��617 repealing Directives 2004/8 and
Art 33�� 610, 620 2006/32) ��557, 1085
Annex IV��618 Council Directive 2014/95, O.J. (L 330),
Directive 2008/99/EC of the European 15.11.2014, 1 (amending Council Directive
Parliament and of the Council of 19 2013/34/EU regarding disclosure of
November 2008 on the protection of the non-financial and diversity information
environment through by certain large undertakings
criminal law�� 163, 175, 179 and groups)��550
Directive 2008/101/EC of the European Directive 2015/720 of the European Parliament
Parliament and of the Council of and of the Council of 29 April 2015
19 November 2008 amending Directive Amending Directive 94/62/EC as Regards
2003/87/EC so as to include aviation Reducing the Consumption of
activities in the scheme for greenhouse gas Lightweight Plastic Bag Carriers, 2015
emission allowance trading within O.J. (L 115/11)��916
the Community�� 161, 162, 573, 1125, 1130 Directive 2016/2284 on the reduction of national
Directive 2008/105/EC on environmental emissions of certain atmospheric
quality standards for surface waters��201 pollutants, amending Directive 2003/35/EC
Council Directive 2009/31 O.J. (on the and repealing Directive 2001/81/EC,
geological storage of carbon dioxide)��568 OJ 2016 No. L344��405, 698
Directive 2009/125/EC establishing a framework
for the setting of ecodesign requirements Regulations
for energy-related products, Council Regulation (EEC) No. 729/70 of 21
OJ 2009 No. L285�� 404 April 1970 on the financing of the common
Directive 2009/147/EC of the European agricultural policy (OJ 1970
Parliament and of the Council of 30 No. L94/13)�� 498
November 2009 on the conservation Council Regulation (EEC) 2141/70 of 20
of wild birds��154, 160–1, 364, 471, October 1970 laying down a common
475, 476, 478, 777 structural policy for the fishing industry
Art 1�� 476 (OJ 1970 No. L236/1)�� 498
Art 4(1) ��471 Council Regulation (EEC) 2057/82 �� 498
Council Directive 2010/31, O.J. (L 153) Council Regulation (EEC) 170/83 �� 498
(regarding the energy performance Council Regulation (EEC) 171/83�� 498
of buildings) �� 557 Council Regulation 880/92/EEC on a
Directive 2010/75/EU of the European Parliament Community eco-label award scheme,
and of the Council of 24 November 2010 OJ 99 11.4.1992 �� 992
on industrial emissions (integrated Council Regulation (EEC) 3760/92
pollution prevention and control) [2010] Arts 5, 7(1) and 8(3)�� 498
OJ L334/17 ��163, 198, 359, 402–3, 863 Council Regulation (EEC) No. 2078/92 of 30
Art 3(10)(b)�� 862 June 1992 on agricultural production
Art 5(2) ��863 methods compatible with the requirements
Art 6�� 207 of the protection of the environment and
Art 13(2)(a)�� 862 the maintenance of the countryside��846
Art 25��368 Council Regulation (EEC) 2847/93 establishing a
Directive 2011/92/EU of the European control system applicable to the common
Parliament and of the Council of fisheries policy, OJ 1993 No. L261/1��498
lii table of legislation
Regulation (EC) No 338/97 on the protection of Arts 3(3), 3(15)��585

species of wild fauna and flora Arts 10(1)(a), 10(a)(x), (b), 14(1)(3)��595
by regulating trade therein�� 482 Art 57��597
Regulation (EC) 889/2002 of the European Art 58��586
Parliament and of the Council of Art 58(3) ��597
13 May 2002 amending Council Art 60��597
Regulation (EC) 2027/97 on air Art 68(1) ��598
carrier liability in the event of accidents Arts 69–73��598
[2002] OJ L140/2��129 Art 133(4)��598
Council Regulation (EEC) 2371/02 �� Annex XIV, XV��597
Arts 2(1), (2)(g)(iv), 4(1), 5, 5(2), 6, 6(2), 7(1), Annex XVII ��598
8(1)�� 498 Regulation (EC) 864/2007 of the European
Regulation (EC) No. 1829/2003 of the European Parliament and of the Council of
Parliament and of the Council of 11 July 2007 on the law applicable
22 September 2003 on genetically modified to noncontractual obligations
food and feed, OJ�� 513, 516, 522 (Rome II Regulation)
Regulation (EC) No. 1830/2003 of the OJ L199/40 �� 1154, 1155, 1156
European Parliament and of the Council Art 4��1042
of 22 September 2003 concerning the Art 4(1) ��1154
traceability and labelling of genetically Art 4(2)��1154
modified organisms and the traceability Art 4(3) ��1154
of food and feed products produced Art 7��1042, 1150, 1154
from genetically modified organisms Art 17��1154
and amending Directive Commission Regulation (EC) No. 692/2008
2001/18/ EC ��522 of 18 July 2008 implementing and
Regulation (EC) No. 1367/2006 of the European amending Regulation (EC) No. 715/2007
Parliament and of the Council of 6 of the European Parliament and of the
September 2006 on the application of the Council on type-approval of motor
provisions of the Aarhus Convention on vehicles with respect to emissions
Access to Information, Public Participation from light passenger and commercial
in Decision-making and Access to Justice vehicles (Euro 5 and Euro 6) and on
in Environmental Matters to Community access to vehicle repair and maintenance
institutions and bodies��155, 166, 891–2, information [2008]
897, 973, 983 OJ L199/1 �� 197, 403
Art 9��166 Regulation (EC) No. 1272/2008 on
Art 9(3) �� 208 Classification, Labelling and Packaging
Regulation (EC) No. 1907/2006 of the European of substances and mixtures, amending
Parliament and of the Council of and repealing Directives 67/548/EEC
18 December 2006 concerning the and 1999/45/EC, and amending
Registration, Evaluation, Authorisation Regulation (EC) No. 1907/2006 [2008]
and Restriction of Chemicals (REACH), OJ L353/1 �� 784
establishing a European Chemicals Regulation 244/2009 on ecodesign requirements
Agency, amending Directive 1999/45/EC for non-directional
and repealing Council Regulation (EEC) household lamps ��1085
No. 793/93 and Commission Regulation Regulation (EC) 392/2009 of the European
(EC) No. 1488/94 as well as Council Parliament and of the Council of
Directive 76/769/EEC and Commission 23 April 2009 on the liability of carriers of
Directives 91/155/EEC, 93/67/EEC, 93/105/ passengers by sea in the event
EC and 2000/21/EC�� 94–8, 159, 344, of accidents [2009] OJ L131/24��1029
579, 582, 583, 586, 588, 589, EC Regulation No. 443/2009, setting emission
590, 591, 592, 593, 600, performance standards for new
602, 604, 605–6, 780 passenger cars, OJ 2009
Preamble 3, 4, 7��594 No. L140.��361, 403, 560
table of legislation liii
Regulation (EC) No. 1224/2009 of 20 November Arts 91–101 �� 717

2009 establishing a Community control Annex II �� 717
system for ensuring compliance with the Regulation (EU) No 1380/2013 of the European
rules of the common fisheries policy, Parliament and of the Council of 11
amending Regulations (EC) No. 847/96, December 2013 on the Common Fisheries
(EC) No. 2371/2002, (EC) No. 811/2004, Policy, amending Council Regulations
(EC) No. 768/2005, (EC) No. 2115/2005, (EC) No. 1954/2003 and (EC) No.
(EC) No. 166/2005, (EC) No. 388/2006, 1224/2009 and repealing Council
(EC) No. 509/2007, (EC) No. 676/2007, Regulations (EC) No. 2371/2002 and (EC)
(EC) No. 1098/2007, (EC) No. 1300/2008, No. 639/2004 and Council Decision
(EC) No. 1342/2008 and repealing 2004/585/EC, OJ, 28.12.2013,
Regulations (EEC) No. 2847/93, (EC) No. No. L 354/22 �� 498
1627/94 and (EC) No. 1966/2006�� 499 Arts 2(2) and (3)��503
Regulation (EC) No. 66/2010 of the European Arts 6, 7, 13�� 499
Parliament and of the Council of Art 15��502
25 November 2009 on the EU Ecolabel OJ Art 16(1), (6)��503
L21/31.01.2010�� 992 Arts 18, 19 and 21 ��503
Commission Regulation (EU) No 459/2012 Regulation 517/2014, O.J. (L 150), 20.5.2014,
of 29 May 2012 amending Regulation 195–230 (regulating fluorinated greenhouse
(EC) No. 715/2007 of the European gases and repealing Regulation (EC) No.
Parliament and of the Council and 842/2006); Regulation (EC) No. 842/2006,
Commission Regulation (EC) No. O.J. (L 161), (regulation of certain
692/2008 as regards emissions from fluorinated greenhouse gases)�� 553
light passenger and commercial vehicles Commission Regulation (EU) 651/2014 of
(Euro 6) �� 197 17 June 2014 declaring certain categories of
Commission Delegated Regulation 244/2012, aid compatible with the internal market in
O.J. (supplemental regulation providing a application of Articles 107 and 108
cost-effectiveness analysis methodology for of the Treaty, 2014 OJ L187/1�� 908
choosing EPBD-compatible options Regulation (EU) No. 1143/2014 of the European
that are optimal for a particular Parliament and of the Council of 22
jurisdiction)�� 557 October 2014, on the prevention and
Regulation (EU) No. 528/2012 concerning the management of the introduction and
making available on the market and use spread of invasive alien species��481
of biocidal products �� 780 Council Regulation (EU) 2016/72 of 22 January
Regulation (EU) 1215/2012 of the European 2016 fixing for 2016 the fishing
Parliament and of the Council of opportunities for certain fish stocks and
12 December 2012 on jurisdiction and the groups of fish stocks, applicable in
recognition and enforcement of Union waters and, for Union fishing
judgments in civil and commercial matters vessels, in certain non-Union waters, and
[2012] OJ L351/1) ��1143, 1147, 1148 amending Regulation (EU) 2015��502
Art 4�� 1148–52 Commission Regulation 2016/646/EU, OJ 2016
Art 7(2) �� 1042, 1153 No. L10 �� 403
Art 7(5) �� 1152–3, 1153–5 Regulation (EU) 2016/1628 on requirements
Regulation (EU) 1305/2013 of the European relating to gaseous and particulate
parliament and of the Council of pollutant emission limits and
17 December 2013 on the support for rural type-approval for internal combustion
development by the European Fund engines for non-road mobile machinery,
for Rural Development�� 712 OJ 2016 No. L 252�� 404
Regulation 1306/2013 of the Council and the
Parliament on the financing, management Other (Communications, etc.)
and monitoring of the Common Council Resolution 85/C 136/01 of 7 May 1985 on
Agricultural Policy (the ‘horizontal’ a new approach to technical harmonization
regulation) and standards [1985] OJ C136/1�� 784
liv table of legislation
Communication from the Commission to the Decision (EU) 2015/1814 of the European
Council, the European Parliament, the Parliament and of the Council of
Economic and Social Committee and the 6 October 2015 concerning the
Committee of the Regions on the Sixth establishment and operation of a market
Environment Action Programme of the stability reserve for the Union greenhouse
European Community, ‘Environment 2010: gas emissions trading scheme and
Our future, Our choice’, COM (2001) amending Directive 2003/87/EC [2015]
31 final�� 404 Arts 4, 5��941
Communication of 21 September 2005 European Commission, ‘Closing The Loop: An
from the Commission to the Council EU Action Plan for the Circular Economy’,
and the European Parliament—Thematic COM(2016) 614��623
Strategy on Air Pollution, Communication from the Commission,
COM(2005) 446��404–5 ‘Publication of the total number of
Protocol No. 3 on the Statute of the Court of allowances in circulation for the purpose of
Justice of the European Union, the Market Stability Reserve under the EU
30 March 2010, OJ C 83/210, Art. 23 �� 166 Emissions Trading System established by
Communication from the Commission ‘Europe Directive 2003/87/EC, COM(2017)
2020: a Strategy for Smart, Sustainable and 3228 final��941
Inclusive Growth’, COM(2010) 2020�� 623
European Commission, Communication from Finland
the Commission to the European
Legislation
Parliament, the Council and the European
Constitution of Finland
Economic and Social Committee,
Ch 2, s 20��1078
Smarter energy taxation for the EU:
Environmental Protection Act��633, 637, 641
proposal for a revision of the Energy
Nature Conservation Act 1096/1996
Tax Directive, COM(2011) 168/3�� 922
Art 37�� 476
Communication from the Commission on a
Environmental Damages Act of 1994��1031
‘Roadmap to a Resource Efficient Europe’,
COM (2011) 571��623
Communication from the Commission to the France
European Parliament, the Council, the Legislation
European Economic and Social Committee Order of Charles V 1396 �� 462
and the Committee of the Regions, ‘Green Civil Code 1804
Infrastructure (GI)— Enhancing Europe’s Art 1382�� 183
Natural Capital’, COM 2013/0249 final �� 485 Constitution
Communication from The Commission to the Art 55�� 1166
European Parliament, the Council, Art 72��181, 681, 691
the European Economic and Social Civil Code��179, 183
Committee and the Committee of the Art 524�� 177
Regions A Clean Air Programme for Art 1100��179
Europe, COM/2013/0918 final�� 405 Art 1162 ��1110
EP and Council Decision 1386/2013, Art 1240 (former 1382)��1029, 1030, 1099
OJ [2013] L354/171 ��623 Art 1241 (former 1383)�� 1099
Commission Recommendation 2013/396/EU Art 1242 (former 1384)�� 1099, 1103, 1105
of 11 June 2013 on common principles for Art 1246 and 1247�� 183
injunctive and compensatory collective Art 1246–1252��1031, 1039
redress mechanisms in the Member States Art 1248��184
concerning violations of rights granted Art 1249 alinéa 1��184
under Union Law [2013] OJ L201/60��1039 Art 1249 alinéa 2��184
European Commission, Communication from Art 1249 alinéa 3�� 180, 185
the Commission, Guidelines on State Art 1252�� 185
aid for environmental protection Code de commerce créé par L. n° 2001–420, 15
2014–2020, 2014 OJ 2014/C 200/01�� 908 mai 2001
table of legislation lv
Art 116�� 187 Loi Grenelle II du 12 juillet 2010 portant

Art L. 225–102–1�� 187 engagement national pour
Art L. 225–102–4�� 187 l’environnement�� 176, 178
Art L. 225–102–5�� 187 Loi no. 2012–1460 du 27 décembre 2012 relative
Code de la construction et de l’habitation à la mise en œuvre du principe de
Art L.112.16 ��1116 participation du public défini à l’article 7 de
Code de la consummation la Charte de l’environnement��828
Art L. 112–10��188 Loi No. 2015–992 du 17 août 2015 relative à la
Code de l’environnement 2000��173, 174–5, transition énergétique pour la croissance
179, 641, 657–8, 659 verte [law relating to the energy transition
Art L. 110–1 I et II�� 177, 657, 661, 824 for green growth], Journal Officiel
Art L. 132–3��179 de la République Française no.0189 du 18
Art L. 142–3–1�� 181, 187 août 2015��554, 555, 828, 1110
Art L. 163–1��176 Loi no. du 8 août 2016 pour la reconquête
Art L. 164–2�� 180, 185 de la biodiversité, de la nature et des
Art L. 220–1��178 paysages��828
L.229–15��1097 Law of 18 November 2016, on the
Art L. 511–1 ��178 Modernization of the Judiciary�� 187
Art L. 512–17�� 187
Regulations
Art 556–3�� 633, 637
Code General des Impots [Internal Revenue Code]
Code de la santé publique
Art. 1609 quatervicies A ��916
Art. L. 1142–22 ��1036
Décret n° 2015–1850 du 29 décembre 2015 pris
Code monétaire et financier
en application de l’article L. 533–22–1 du
Arts L. 533–22–1 and D. 533–16–1�� 187
code monétaire et financier [decree
Code Pénal
adopted pursuant to Article L. 533–22–1 of
Art 421–2 and 461–28 ��184
the Monetary and Financial Code], Journal
Constitutional Charter on the Environment
Officiel de la République Française n°0303
2005��1175
du 31 décembre 2015 ��550
Arts 1, 3–7 ��173–4
Décret n° 2016–1110 du 11 août 2016 relatif à la
Art 5�� 182
modification des règles applicables à
Loi no. 51–1508 du 31 décembre 1951 ��1036
l’évaluation environnementale des projets,
Loi no. 90–589 du 6 juillet 1990��1036
plans et programmes�� 172
Loi no. 91–1406 du 31 décembre 1991
Ordonnance n° 2017–80 et décrets n° 2017–81 et
Art 47��1036
n° 2017–82 du 26 janvier 2017 relatifs à
loi du 23 décembre 2000 de financement
l’autorisation environnementale �� 172
de la sécurité sociale pour 2001
Art 53��1036
Germany
Loi n° 2001–153 du 19 février 2001 tendant à
conférer à la lutte contre l’effet de serre Legislation
et à la prévention des risques liés au German Federal Constitution, Basic Law
réchauffement climatique la qualité de (Grundgesetz—GG)�� 192–3, 194–5,
priorité nationale et portant création d’un 693, 699, 1181
Observatoire national sur les effets Art 2(2) ��192
du réchauffement climatique en France Art 20a��1175
métropolitaine et dans les départements Art 25��194
et territoires d’outre-mer 178 Art 28�� 687
Loi n° 2006–1772 du 30 décembre 2006 sur l’eau Art 30�� 683, 687
et les milieux aquatiques ��430, 1036 Art 59�� 1166
Environmental Liability law Art 59(2) ��194
1 August 2008��176 Art 70(1) ��194
Loi Grenelle I du 3 août 2009 de programmation Arts 71��194–5
relative à la mise en œuvre du Grenelle de Art 72�� 194–5, 696
l’environnement��176 Art 72(1)�� 195
lvi table of legislation
Art 72(3) �� 195 Federal Soil Protection Act of

Art 73��194–5 17 March 1998��637, 642
Art 74 ��194–5 Art 2��633
Art 83�� 195, 683 Art 4��639
Art 84(1) �� 195 Law of 25 June 2009, BGBl. I
Art 84(3) ��196 s. 1537��1036
Art 87(3) ��196 Electricity FeedIn-Tariff Law, 29. März 2000,
Art 104a�� 688 BGBl. I 2000, S. 305 (superseding 1990
Civil Code BGB and 1998 versions)�� 555
§ 134��1110 Federal Pollution Control Act – BimSchG 2002
§ 138(1)��1110 § 14�� 1032
§ 426(1) ��1034 Act Pertaining to Charges Levied for
§ 823��1029, 1099 Discharging Wastewater into Waters
§ 830(1)(2)��1034 (Wastewater Ordinance— AbwV)
§ 831�� 1033 18 January 2005. amended on
§ 840(1) ��1034 31 July 2009 �� 427
§ 906 �� 1099 Environmental Appeals Act
§ 906(2)�� 1032 (Umweltrechtsbehelfsgesetz)�� 208
Waste Disposal Act (Abfallbeseitigungsgesetz) Act on Nature Conservation and Landscape
1972 ��196 Management (Federal Nature
Federal Immission Control Act Conservation Act – BNatSchG) 2009
(Bundes-Immisionsschutzgesetz) Art 16�� 486
1974 ��191, 196, 197, 198 Closed Substance Cycle Act
§ 1(1)��198 (Kreislaufwirtschaftsgesetz—KrWG)
§ 3(1), (2)��198 2012 ��203
§ 3(2) �� 191 §23 �� 204
§§ 4–21��198 Renewable Energy Sources Law, 21. Juli 2014,
§ 5(2) ��199 BGBL. I, S. 1066��200, 555
§ 48��196 Art. 4
Federal Nature Conservation Act German Energy Act, 21. Juli 2014, BGBL. I
(Bundesnaturschutzgesetz) 1976��196, 205 S. 1066, (amending 2005 version)�� 555
§13�� 205 Art. 6 �� 555
§14(2)�� 205 Incentive Regulation Ordinance, 21. Juli 2014,
Federal Water Management BGBL. I, S. 1066, Art. 9
Act (Wasserhaushaltsgesetz) (amending 2007 version)�� 555
1976 ��196, 201, 207 Art 9�� 555
§§ 4(3), 12(1), 12(2)�� 207 Electricity Grid Access Ordinance, 21. Juli 2014,
§ 7a�� 426 BGBL. I, S. 1066, (amending
§ 8 �� 207 2005 version) �� 555
§ 12 and § 3 no. 10 and §§ 27, 44, 47�� 207 Art. 8 �� 555
§ 52(5)�� 202 Electricity Grid Charges Ordinance, 21. July
§ 57(1)�� 202 2014, BGBL. I S. 1066, (amending
§ 68�� 202 2005 version) �� 555
§ 89��1030 art. 7 �� 555
Chemicals Act (Chemikaliengesetz) 1980 ��196 Law incentivizing use of electric vehicles
Law on Environmental Liability of (electro-mobility law), 5. Juni 2015,
10 December 1990�� 1031, 1099, BGBl. I S. �� 555
1104, 1106–7, 1116 Renewable Energies Act (Erneuerbare-Energien-
§6�� 1035 Gesetz, EEG)��200
Packaging Ordinance 1991��204, 621
§7 ��204, 208 Regulations
Law on Gene-technology of Technical Instructions on Air Quality Control
16 December 1993 ��1030 (Technische Anleitung Luft)�� 191, 196, 207
table of legislation lvii
Technical Instructions on Noise Protection Public Liability Insurance

(Technische Anleitung Lärm)��196, 207 Act 1991�� 220, 226, 1036
Regulation of 20 May 1998, BGBl. I National Environment Tribunal
s. 1250��1036 Act 1995��227
Energieeinsparverordnung [Energy Efficiency National Environmental Appellate Authority
Regulation], 24 July 2007, Act 1997��227
BGBl. I S. 1519�� 541 Energy Conservation Act, 2001�� 560
Regulation for the protection against climate Protection of Plant Varieties and Farmers’
change due to the introduction of Rights Act of 2001��529
certain fluorinated greenhouse gases, lately Biological Diversity Act, 2002 �� 226
amended in part by Articles 5 and 6 of the Patents (Amendment) Act 2002��528
law of 20 October 2015 �� 553 Electricity Act 2003 ��562
National Green Tribunal Act, 2010 ��226–7, 673
Guatemala s 14��673
s 20��673
Legislation
Finance Act 2017
Climate Change Framework Law of 2013,
ss 182, 184��673
Decreto No. 7–2013, D.O. 4.10.2013
Regulations
India Ministry of Power (fuel economy)
Regulations, 2015 �� 560
Legislation
Constitution �� 213
Indonesia
Art 21��54, 213, 223, 672
Art 37��214 Legislation
Art 42��214 Constitution (Undang-undang Dasar) 1945��234
Art 47��214 Art 28D(1)�� 234, 249
Art 48A��214 Art 28A �� 249
Art 49��214 Art 28F��234
Art 51��214 Art 28H(1)��234, 250
Art 51–A ��214 Art 33��234
Art 51–A(g)��223 Art 33(3)��234
Art 73��214 Art 33(4) ��234
Art 95(1)�� 251 Law No 19 of 1961�� 2422
Art 246��214 Law on Environmental Management 1990
Art 253��214, 215, 228 Art 88 ��1031
Madras Wild Elephant Preservation Law No. 5 of 1994 on the Ratification of the UN
Act of 1873�� 462 Convention on Biological Diversity��237
Patents Act, 1970 ��528 Law No. 6 of 1994 on the Ratification of the
Art 3(j)��528 UNFCCC �� 240
Wildlife (Protection) Act 1972 �� 218–19 Law No. 41 of 1999 on Forestry��236
Ch IV��218 Law No. 24 of 2000 on International
Water (Prevention and Control of Pollution) Agreements ��237
Act 1974�� 217, 221, 222, 226 Law No. 25 of 2004 on the National
Water (Prevention and Control of Pollution) Development Plan System��241
Cess Act 1977 �� 218, 222, 226 Law No. 31 of 2004 on Fisheries��243
s3��218 Law No. 4 of 2009 on Mineral and
Forest (Conservation) Act 1980��219, 226 Coal Mining��236
Air (Prevention and Control of Pollution) Environmental Protection
Act 1981��218, 222, 226, 726 and Management Act 32
Environment (Protection) of 2009�� 235–6, 237–41, 633, 638
Act 1986��219–20, 226, 633 Art 1(28)��239
s 2��633 Art 2(f) ��243
s 3, 6 and 25��219 Art 9(10) �� 249
lviii table of legislation
Art 13(2)��237 Presidential Regulation No. 71 of 2011

Art 14��237 on the GHG Inventory��241
Art 20(2)��239 Presidential Instruction No. 6 of 2013 on
Art 36��238 Suspension of New Licenses and
Art 40(2)��238 Improving Governance of Primary
Art 44��236 Forest and Peat Lands��241
Arts 48–52��239 Presidential Decree No. 65 of 2014 on the
Arts 58–59��239 Ratification of the International
Art 63(2) and (3)�� 235 Convention on Civil Liability for Bunker
Art 69�� 242 Oil Pollution Damage��237
Art 73��236, 238 Presidential Regulation No. 115 of 2015 on the
Art 77��236 Task Force for Combating
Art 124��241 Illegal Fishing�� 244
Law No. 10 of 2013 on the Ratification of the
Rotterdam Convention on Prior Informed
Government Regulations and Ministerial
Consent Procedure for Certain Hazardous
Chemicals and Pesticides in
Decrees
International Trade��237 Governor of East Kalimantan Decree No. 339 of
Law No. 18 of 2013 on Prevention and 1988 on Environmental Quality
Eradication of Forest Destruction��241 Standards for East Kalimantan �� 242
Law No. 1 of 2014 on the Amendment of Law Ministerial Decree No. 35/MENLH/10/1993 on
No. 27 of 2007 on Coastal Emission Standards for Vehicles��241
and Small Island Management��243 Ministerial Decree No. 13/MENLH/3/1995
Law No. 3 of 2014 on Industry ��236 on Emission Standards for Stationary
Law No. 23 of 2014 on Local Government��236 Sources 242 Ministerial Decree
Law No. 32 of 2014 on Marine Affairs��236, 243 No. 13/MENLH/11/1996 on Noise
Law No. 37 of 2014 on Soil and Water Standards�� 242
Conservation��241 Ministerial Decree No. 49/MENLH/11/1996 on
Law No. 39 of 2014 on Plantations��236 Vibration Standards�� 242
Law No. 16 of 2016 on the Ratification of the Ministerial Decree No. 50/MENLH/11/1996 on
Paris Agreement to the UNFCCC Odour Standards�� 242
Ministerial Decree No. 45/MENLH/10/1997 on
Regulations
the Air Pollution Standards Index�� 242
Hinder Ordonantie/Nuisance Ordinance,
Head of Bapedal Decree No. 107/
Staatsblaad 226 of 1926��239
Kabapedal/11/1997 on the Technical
Government Regulation No. 150 of 2000��633
Guidelines for Measurement and Reporting
Instruction of President of the Republic of
Standards of Air Pollution�� 242
Indonesia No. 10/2011, 20 May 2011
Government Regulation No. 18 of 1999 on the
(Delay on New License Issuance and
Management of Hazardous Waste��239
Perfection of Governance of Primary
Government Regulation No. 19 of 1999
Natural Forest and Peat Lands)�� 551
on Marine Pollution and Damage
Regulation of Forestry Minister No. 62 of 2013
Control ��243
on the Amendment of Ministerial
Government Regulation No. 41 of 1999 on Air
Regulation No. 44 of 2012 on Forest
Pollution Control�� 242
Zone Designation �� 251
Government Regulation No. 85 of 1999 on the
Amendment of Government Regulation
Presidential Decrees
No. 18 of 1999 on the Management of
Presidential Decree Hazardous Waste��239
No. 18 of 1978��243 Government Regulation No. 4 of 2001 on
Regulation No. 109 of 2006 on the Management Environmental Destruction and/or
of Sea Oil Spills �� 243–4 Pollution Control from Forest and/or
Presidential Regulation No. 61 of 2011 on the Land Fires�� 242–3
National Action Plan to Reduce Ministerial Decree No. 4 of 2001 on Standard
GHG Emissions��241 Criteria for Coral Reef Damage��243
table of legislation lix
Ministerial Decree No. 51 of 2004 on Seawater Supreme Court Decrees

Quality Standard and amendment,
Supreme Court Decree No. 134/KMA/SK/
Ministerial Decree on Standard Criteria for
IX/2011 on environmental cases �� 247
Mangrove Damage ��243
Supreme Court Decree No. 178/ KMA/SK/
Governor of DKI Jakarta Province Decree No.
XI/2011 on the Selection Team
551 of 2001 on Ambient Quality and
for the Certified Environmental Judges
Nuisance Standards�� 242
System �� 247
Ministerial Decree No. 12 of 2006 on Licensing
Supreme Court Decree No. 26/KMA/SK/ II/2013
Procedures for Waste Disposal into Marine
on the Selection and Appointment of
Areas��243
Certified Environmental Judges �� 247
Governor of East Java Regulation No. 10 of 2009
Supreme Court Decree No. 36/KMA/SK/II/2013
on Ambient Air Quality from Mobile and
on the Guidelines for Handling
Static Resources�� 242
Environmental Cases �� 247
Ministerial Decree No. 2007 0f 2009 on Guidelines
for Subnational Nuisance Licenses ��239
Environment Minister Decree No. 13 of 2011 on Ireland
Compensation for Damages Caused by Legislation
Pollution and/or Environmental Wild Birds Protection Act 1930 ��474
Damage�� 240 Civil Liability Act 1961
Government Regulation No. 27 of 2012 on Pt III��1034
Environmental Licenses��238 Waste Management (Amendment) Act 2001
Art 48(2)��238 (Act No. 36/2001)��916
Local Regulation of Lampung Province No. 20 Finance Act of 2010
of 2014 on Air Pollution Control�� 242 Pr 3, Ch 1–3�� 920–1
Minister of Maritime Affairs and Fisheries Finance Act 2011
Regulation No. 56 of 2014 on Fishing Pt 2��921
Moratorium in Indonesian
Fishing Zones�� 244 Regulations
Minister of Maritime Affairs and Fisheries Waste Management (Environmental Levy)
Regulation No. 57 of 2014 on (Plastic Bag) Regulations, 2001��916
Fishing Businesses in Indonesian Waste Management (Environmental Levy)
Fishing Zones�� 244 (Plastic Bag) (Amendment) (No. 2)
Government Regulation No. 79 of 2014 on Regulations 2007��916
National Energy Policy��241
Ministerial Decree No. 101 of 2014 on the Italy
Management of Hazardous Waste��239
Legislation
Minister of Maritime Affairs and Fisheries
Constitution of Italy
Regulation No. 2 of 2015 on the Prohibition
Pt II, Title V, Art 117(s) ��1077
of the Utilization of Trawls and Seine Nets
Civil Code
in Indonesian Fishing Zones�� 244
Art 844�� 1032
Minister of Home Affairs Regulation No. 22 of
Art 2055��1034
2016 on the Amendment of Ministerial
Decreto Legislativo 42/2004��435
Decree No. 27 of 2009 on the Guidelines
Legislative Decree No. 152 of 3 April 2006
for Subnational Nuisance Licence��239
(Consolidated Environmental
Protection Code) �� 426, 633, 642
Supreme Court Regulations Art 242��638
Supreme Court Regulation No. 134/KMA/SK/ Title V, section IV ��632
IX/2011 Annex 1, section IV��632
Art 5(3)�� 247 Regulations
Art 6�� 247 Codice dei beni culturali e del Paesaggio��435
Supreme Court Regulation No. 36/KMA/SK/ Art 134��435
III/2015 Environmental Protection Code
Art 1�� 247 Art 311 ��1039
lx table of legislation
Ivory Coast Law No. 72/1963 (Toshi ryokuchi-hô) (Urban

Green Space Act)��261
Legislation
Law No. 110/1967 (Kôkyô-yô hiko-jô shûhen ni
Law no. 65–255 of 4 August 1965, concerning
okeru kôkû-ki sô’on ni yoru shôgai no
the protection of fauna and the practice
bôshi- tô ni kansuru hôritsu) (Law
of hunting
Concerning the Prevention of Damage
Art 1�� 476
caused by Aircraft Noise in Areas Around
Public Airports)�� 264
Japan
Law No. 132/1967 (Kôgai taisaku kihon-hô)
Legislation (Basic Law for Environmental Pollution
Civil Code Control) �� 254, 255
Art 709��1029 Art 8��275
Laws No. 89/1896 and 9/1898 (Minpô) - Civil Code Law No. 97/1968 (Taiki osen bôshi-hô),
Arts 197, 198 and 206��272 (Atmospheric Pollution
Art 709�� 271 Prevention Law) ��262, 1030
National Parks Law 1931�� 466 Art 2
Constitution of Japan 1946 Art 2(9)��262
Art 13�� 256–7, 272 Art 3��262
Art 17��273 Art 4��262
Art 25��257 Art 5–2��262
Arts 92 and 94�� 258–9 Arts 6, 9, 10, 14��262
Art 98(2)��257 Arts 18–20�� 262–3
Law No. 67/1947 (Chihô jichi-hô) Art 19��263
(Local Autonomy Law)��248–9 Art 25��262, 1030
Law No. 125/1947 (Kokka baishô-hô) Law No. 98/1968 (Sô ’on kisei-hô)
(State liability law)��273 (Noise Regulation Law) ��263
Art 1�� 273–4 Art 1, 4, 6 and 9��263
Arts 1(1)��273 Arts 15, 16 and 17�� 264
Art 2�� 273, 274 Arts 29 and 30��263
Art 5��273 Act on Special Measures Concerning Relief for
Fisheries Cooperation Association Law, Health Damage by Pollution,
Act No. 242 of 1948��499, 500 Act No. 90 of 1969��1036
Fisheries Law 1949, Act No. 267 Law No. 108/1970 (Kôgai funsô shori-hô), (Law
of 1949��499, 500 on Settlement of Environmental
Law No. 214/1950 (Bunka-zai hogo-hô) Pollution Disputes)��274
(Law on the Protection of Law No. 137/1970 (Haiki-butsu no shori oyobi
Cultural Properties)�� 260 seisô ni kansuru hôritsu) (Waste
Law Concerning Standardization and Proper Management and Public
Labeling of Agricultural and Forestry Cleansing Law)�� 264
Products, Act No. 175 of 1950, last amended Art 3�� 264
by Act No. 70 of 2013�� 523 Art 12–3�� 264
Law 313/1951 (Suisan shigen hogo-hô )(Act on the Law No. 138/1970 (Suishitu odaku
Protection of Fishery Resources) ��261, 499 bôshi-hô) (Water Pollution
Nature Conservation Law 1952��503 Prevention Law)�� 266
Law No. 186/1955 (Genshi-ryoku kihon-hô), Arts 2(1)�� 266, 275
(Nuclear Energy Basic Law)��275 Arts 12–3 and 14–3�� 266
Law No. 161/1957 (Shizen kôen-hô) (Natural Art 19��1030
Parks Law) ��260, 466, 503 Art 23(1)��275
Arts 1 and 2�� 260 Law No. 139/1970 (Nôyô-chi no dojô no osen
Law No. 139/1962 (Gyôsei jiken soshô-hô), bôshi-tô ni kansuru hôritsu)
(Administrative Case Litigation Law)��273 (Agricultural Land Soil Pollution
Art 3, 3–7, 9(1), 9–2��273 Prevention Law)�� 266
table of legislation lxi
Law No. 142/1970 (Hito no kenkô ni kakaru Law No. 75/1992 (Zetsumetsu no osore no aru
kôgai hanzai no shobatsu ni kansuru yasei dô-shokubutsu no shu no hozon ni
hôritsu) (Law for Punishment of Crimes kansuru hôritsu) (Law for the Conservation
Relating to Environmental Pollution of Endangered Species of Wild Fauna and
Pertaining to Human Health) �� 271 Flora)��261
Law No. 91/1971 (Akushû bôshi-hô), (Offensive Law No. 108/1992 (Tokutei yûgai haiki-butsu-tô
Odour Control Law)��263 no yushutsu-nyû-tô no kisei ni kansuru
Law No. 85/1972 (Shizen kankyô hozen-hô) hôritsu), (Law for the Control of Export,
(Nature Conservation Law)�� 260 Import, etc. of Specified Hazardous
Law No. 111/1973 (Kôgai kenkô higai no hoshô-tô Waste, etc.)��265
ni kansuru hôritsu) (Pollution-Related Law No. 91/1993 (Kankyô kihon-hô)
Health Damage Compensation (Environmental Basic Law)��255, 257–8,
Law)�� 275, 1036 819, 831
Law No. 105/1973 (Dôbutsu no aigo oyobi kanri Art 1�� 257, 822
ni kansuru hôritsu) (Law on Welfare Art 3��257
and Management of Animals)��256 Art 4�� 257, 258
Law No. 117/1973 (Kagaku busshitsu no shinsa Art 5��257
oyobi seizô-tô no kisei ni kansuru hôritsu) Art 13��275, 276
(Law on the Evaluation of Chemical Art 14��827
Substances and Regulation of the Art 15�� 258, 819, 822, 827
Manufacture)��267 Art 16��258, 264
Arts 1, 2, 2–8, 4, 4–4, 4–6, 5–3, 5–5, 8–2, Art 17��258
9 and 39��267 Art 22(1)��258
Law No. 101/1974 (Bôei shisetsu shûhen no Art 22(20)�� 28
seikatsu kankyô no seibi-tô ni kansuru Law No. 112/1995 (Yôki hôsô ni kakaru bunbetsu
hôritsu shikōrei) (Law Concerning the shûshû oyobi sai-shôhin-ka no sokushin-tô
Improvement, etc. of Living Environments ni kansuru hôritsu), (Act on the Promotion
around Defence Facilities)�� 264 of Sorted Collection and Recycling of
Law No. 74/1976 (Shindô kisei-hô) (Vibration Containers and Packaging) �� 265, 617, 621
Regulation Law)�� 264 Law No. 77/1996 (Kaiyô seibutsu shigen no hozon
Law No. 61/1984 (Koshô suishitsu hozen oyobi kanri ni kansuru hôritsu)
tokubetsu sochi-hô) (Law Concerning (Act on Preservation and Control of Living
Special Measures for the Conservation of Marine Resources)��261
Lake Water Quality) �� 266 Law No. 81/1997 (Kankyô eikyô hyôka-hô)
Law No. 53/1988 (Tokutei busshitsu no kisei-tô ni (Environmental Impact
yoru ozon-sô no hogo ni kansuru hôritsu) Assessment Law) ��268–9
(Law Concerning the Protection of Arts 2, 5–11 and 17 �� 268
the Ozone Layer through the Control Arts 31 and 38�� 269
of Specified Substances and other Art 52(12)��275
Measures)��267 Law on Preservation and Management of Living
Law No. 48/1991 (Shigen no yûkô na riyô no Marine Resources 1997�� 500
sokushin ni kansuru hôritsu) (Law for the Law No. 97/1998 (Tokutei katei-yô kiki sai-
Promotion of Effective Utilization of shôhin-ka-hô). (Specified Home-use
Resources)�� 264–5 Appliance Recycling Law)�� 265, 617, 621
Law No. 70/1992 (Jidô-sha kara haishutsu sareru Law No. 117/1998 (Chikyû ondan-ka taisaku no
chisso sanka-butsu oyobi ryûshi-jô busshitsu suishin ni kansuru hôritsu) (Law on
no tokutei chi’iki ni okeru sôryô no Promotion of Global Warming
sakugen-tô ni kansuru tokubetsu sochi- hô), Countermeasures)�� 269
(Law Concerning Special Measures for Art 1�� 269
Total Emission Reduction of Nitrogen Art 3(4) �� 269
Oxides from Automobiles in Specified Law No. 86/1999 (Tokutei kagaku busshitsu no
Areas) ��263 kankyô e no haishutsu-ryô no ha’aku-tô
lxii table of legislation
oyobi kanri no kaizen no sokushin ni Regulations on the Use of Living Modified

kansuru hôritsu) (Law Concerning Organisms (LMOs))��261–2
Reporting of Releases to the Environment Law No. 78/2004 (Tokutei gairai seibutsu ni yoru
of Specific Chemical Substances and seitai-kei-tô ni kakaru higai no bôshi ni
Promoting Improvements in Their kansuru hôritsu) (Invasive Alien Species
Management)��267 Law)��261
Arts 5, 6 and 10��267 Law No. 4/2006 (Ishiwata ni yoru kenkô higai
Law No. 105/1999 (Daiokishin-rui taisaku no kyûsai ni kansuru hôritsu) (Law on
tokubetsu sochi-hô) (Law Concerning Asbestos Health Damage Relief)�� 268
Special Measures against Dioxin)��267–8 General Act Related to the Application of
Law No. 100/2000 (Kuni-tô ni yoru kankyô Laws 2006
buppin-tô no chôtatsu no suishin-tô ni § 22(2) �� 1037
kansuru hôritsu) (Law Concerning the Law No. 56/2007 (Kuni-tô ni okeru onshitsu kôka
Promotion, etc. of Procurement, etc. of gasu-tô no haishutsu no sakugen ni hairyo
Eco-Friendly Goods and Services by the shita keiyaku no suishin ni kansuru hôritsu)
State and other Entities)��265 (Act on Promotion of Contracts of the
Law No. 104/2000 (Kensetsu kôji ni kakaru State and Other Entities, Which Show
shizai no sai-shigenka-tô ni kansuru Consideration for Reduction of Emissions
hôritsu) (Law Concerning the Recycling, of Greenhouse Gases, etc) ��270
etc. of Materials Relating to Building and Basic Act on Ocean Policy 2007�� 500
Construction)�� 265, 617 Law No. 58/2008 (Seibutsu tayô-sei kihon-hô)
Law No. 110/2000 (Junkan-gata shakai keisei (Basic Law on Biodiversity)��261
suishin kihon-hô), (Basic Law for Art 11 ��261
Establishing a Sound Material-Cycle Act on Emergency Measures of
Society)�� 265, 615, 614 5 August 2011 ��1036
Arts 5–7, 11(2), 11(3) and 15 ��265 Act on Swift and Secure Compensation of
Law No. 116/2000 (Shokuhin junkan shigen no 11 December 2011��1036
saisei riyô-tô no sokushin ni kansuru Law No. 108/2011 (Denki jigyô-sha ni yoru saisei
hôritsu) (Law Concerning the Promotion kanô enerugî denki no chôtatsu ni
of Recycling, etc. of Cyclical Food kansuru tokubetsu sochi-hô) (Act on Special
Resources) �� 265, 617 Measures Concerning Procurement
Basic Act on Fisheries Policy 2001�� 500 of Electricity from Renewable Energy
Art 11 �� 500 Sources by Electricity Utilities)�� 270
Law No. 53/2002 (Dojô osen taisaku-hô) (Soil Laws No. 16–9/2012 (Global Warming
Contamination Countermeasures Countermeasures Tax)�� 270
Law)�� 266–7, 633, 634, 638, 642 Law No. 68/2014 (Gyôsei fufuku shinsa-hô),
Arts 1, 3 6 and 7��267 (Administrative Complaint
Art 2(1)��275 Review Act) ��273
Law No. 87/2002 (Shiyô-zumi jidô-sha no Law No. 50/2018 (Kikô hendô tekiô-hô) (Climate
sai-shigen-ka-tô ni kansuru hôritsu (Law Change Adaptation Act)��269–70
Concerning the Recycling, etc. of End-of- Arts 1, 4 and 5�� 270
Life Vehicles) ��265, 617, 621
Law No. 88/2002 (Chôjû no hogo oyobi kanri Greece
narabi ni shuryô no tekisei-ka ni kansuru
Legislation
hôritsu) (Law Concerning the Protection
Civil Code
and Control of Wild Birds and Mammals,
Art 926��1034
and Hunting Management)�� 261, 503
Art 931��1036
Law No. 148/2002 (Shizen saisei suishin-hô)
Arts 1003 and 1108�� 1032
(Nature Revitalisation Promotion Act)��261
Law No. 18/2003 (Iden-shi kumikae seibutsu-tô
Kenya
no shiyô-tô no kisei ni yoru seibutsu no
tayô- sei no kakuho ni kansuru hôritsu), Legislation
(Law on the Conservation and Sustainable National Parks Ordinance
Use of Biological Diversity through 1945 �� 466
table of legislation lxiii
Laws of Kenya, Water Act, Chapter 372 General Act on Transparency and Access to
§ 13�� 430 Public Information 2015�� 288
Art 1�� 288
Art 6�� 288
Malaysia Art 8�� 288
Legislation
Regulations
Protection of Wildlife Act 1972�� 466
Federal Code of Civil Procedure ��292
Environmental Quality Act 1974
Art 584��292
s 2��633
Federal Criminal Code ��293
s 21 �� 642
RLGEEPAANP, Mexico, DOF,
s 31(1)��638
30 November 2000 �� 285–6
National Parks Act 1980�� 466
NOM-138–SEMARNAT/SS-2003�� 642
Renewable Energy Act 2011��539
NOM-141–SEMARNAT-SSA1–2004�� 642
NOM-059–SEMARNAT-2010, Mexico, DOF, 30
Mexico December 2010 �� 286
RISEMARNAT, Mexico, DOF,
Legislation
26 November 2012
Constitution 1917 ��278–81
Art 45��291
Art 1��279
Norma Official Mexicana, Diario Oficial, 21 de
Art 2��281
junio de 2013 �� 560
Art 4��280, 281, 282
Art 6�� 288
Art 17��278, 292 Netherlands
Art 25��279 Legislation
Art 27��283, 284 Constitution of the Netherlands
Arts 103 and 107��292 Ch 1, Art 21��1077
Art 133 �� 280 Civil Code
Federal Act to Prevent and Control Art 6:97��1038
Pollution 1971��282 Art 6:102 ��1034
Federal Act for Environmental Art 6:162 �� 1029, 1109
Protection 1982��282 Art 6:173, 6:174, 6:175, 6:176, 6:177 ��1030
Federal Law of Environmental Code of Civil Procedure
Responsibility�� 281 Art 150�� 1033
General Act on Ecological Balance and Soil Protection Act
Environmental Protection s 1 and 30��635
(LGEEPA) 1988 ��278, 279, 282–7, 288, s 38�� 642, 643
289, 291 Art 55 (b)��638
Art 15��282
Art 180��291
New Zealand
National Waters Act 1992 �� 284–5
General Wildlife Act 2000 �� 286–7 Legislation
General Act for the Prevention and Fisheries Act 1908�� 501
Comprehensive Management of Waste Land transfer Act 1952�� 713
2003�� 287–8 s 62�� 713
Art 5��287 Wildlife Act 1953��465, 502
Title V, Chapter VI��633, 638 Health Act 1956��610
Genetically Modified Organisms (GMOs) Marine Reserves Act 1971 ��502
Biosafety Act 2005��287 Queen Elizabeth the Second National Trust
Art 101�� 523 Act 1977 (New Zealand)��710
Amparo Act 2012 �� 292–3 Marine Mammal Protection Act 1978��502
General Climate Change Act 2012 (as amended, Litter Act 1979��610
2 de april de 2015) ��283–4, 534 Antarctic Marine Living Resource Act 1981 �� 501
Federal Act on Environmental Fisheries Act 1983�� 501
Liability 2013�� 291–2, 1039 Environment Act 1986��610
lxiv table of legislation
Conservation Act 1987��502 Forest and Wildlife Law No. 29763

Driftnet Prohibition Act 1991�� 501 Art 6�� 476
Resource Management Act 1991 Supreme Decree No. 002–2013–MINAM
(amended 1996)��502, 610, 714, 802 (25 March 2013)�� 634, 638, 642
s 2��635 Supreme Decree No. 002–2014MINAM (24
s 5��723 March 2014)�� 634, 638, 642
s 6��714
Regulations
s 49�� 805
National Forestry and Climate Change Strategy,
Maori Land Act 1993
Decreto No. 007–2016–MINAM
s2��714
(21 July 2016)�� 549
Fisheries Act 1996�� 501, 507
Hazardous Substances and New Organisms
Norway
Act 1996��610
Climate Change Response Act 2002 ��534 Legislation
Maori Fisheries Act 2004 �� 501 Constitution of Norway
Aquaculture Reform (Repeals and Transitional Art 110b��1078
Provisions) Act 2004�� 501
Resource Management (Energy and Climate Poland
Change) Amendment Act 2004��534
Waste Minimisation Act 2008 ��617 Legislation
ss 3, 5(1)��617 Constitution of Poland
s 8(10)��622 Ch 2, Art 74(2) ��1077
s 23��623 Civil Code
ss 42, 43��610 Art 415��1029
Pt 2��623 Art 435��1030
Pt 3��618 Environmental Law of April 2001 ��633, 638
Environment Protection Authority Act 2011 Law on Genetically Modified Organisms of
s 12(2)��723 22 June 2001��1030
Exclusive Economic Zone and Continental Water Law, 18 July 2001 (Ustawa z dnia 18 lipca
Shelf (Environmental Effects) 2001 r.—Prawo wodne)�� 426
Act 2012��502 Ordinance of the Minister of Environment on
Te Urewera Act 51 of 2014�� 1060 Standards of Equality of Land of
Art 4�� 1060 9 September 2002 �� 634, 642
Whanganui River Deed of Settlement 2014��1060
Te Awa Tupua (Whanganui River Settlement) Portugal
Act 2017��236–7, 713, 714
Legislation
s 8�� 713
Civil Code
s 14��714
Art 490 ��1034
ss 18, 19 and 20��714
Art 497��1034
Regulations Art 492, § 2�� 1033
New Zealand Fisheries (Quota Management LBA Law No. 11/87, as amended by Law 13/2002
Areas, Total Allowable Catches, and Catch Art 48��1039
Histories) Notice 1986 (SR 1986/267) �� 501 Law No. 83 of 31 August 1994 (Environmental
Climate Change (Agriculture Sector) Protection Code)
Regulations 2010, SR 2010/335 regs 4–14 551 Art 23��1030
DL No. 236/98 (Water Pollution Law)
Art 73��1039
Peru
Legislation Singapore
Law No. 30.203 declaring the protection and Legislation
conservation of the Andean condor of Second Charter of Justice 1826�� 298
national interest and public necessity�� 465 Constitution �� 298
table of legislation lxv
Income Tax Act (Ordinance 39 of 1947)�� 300–1 Transboundary Haze Pollution Act (Act 24
Planning Ordinance 1959 �� 312 of 2014)�� 303–4
Animals and Birds Act (Ordinance 5 of 1965,
Cap 216) ��299, 311 Regulations
Wild Animals and Birds Act (Ordinance 5 of Income Tax Act and the Income Tax (Efficient
1965, Cap 351)��299, 308–9, 311 Pollution Control Equipment) Rules,
Application of English Law Act 1996 s. 19A (5), (6), (7), (8), and (15)��301
(Act 35 of 1993)�� 298 Income Tax (Low-decibel Machine, Equipment
Environmental Public Health Act (Amendment or System and Effective Noise Control
Act) No. 2 of 1996 ��307 Device or Engineering Noise Control
Hazardous Waste (Control of Export, Import Measure) Rules (Cap. 134, R. 12)��301
and Transit) Act (Act 13 of 1997)��307 Income Tax (Machine, Equipment or System
Environmental Public Health Act 1987 which Reduces or Eliminates Exposure
(Act 14 of 1997)�� 299, 306 to Chemical Risk Singapore Standard SS
s 18 �� 306 593:2013 Code of Practice for
ss 24–31 ��307 Pollution Control�� 634, 642
s 44m�� 308 Environmental Public Health (Notice to Attend
Pt III��307 Court) Regulations 1995 (S 449/95)�� 306
Environmental Protection and Management EC (Fuel Economy Labelling) Order,
Act (Act 9 of 1999)�� 299, 634, 638 S 307/2012�� 309
s 6–9�� 300 Energy Conservation (Motor Vehicles Subject to
s 15 ��305, 638 Fuel Economy Requirements) Order,
s 17(6)��305 S309/2012 �� 309
s 18 ��305, 638 EC (Registrable Goods) Order, S 557/2013�� 309
s 18(1) (a)–(g) �� 306 EC (Energy Management Practices)
s 19��305 Regulations, S246/2013��310
s 20��307 Energy Conservation (Registrable
s 20(1)(c)�� 306 Corporations) Order, S 248/2013��310
ss 24–31 ��307 EC (Transport Facilities Operators) Order,
s 26�� 313 S807/2013 ��310
ss 28–30�� 308 EPH (Corrective Work Order) (CWO)
s 36�� 313 Regulations (Section 447/92)��307
s 71��305 EPH (Toxic Industrial Waste) Regulations
Pt III��307 (S 111/88, S 305/88, S 24/89, S 197/89,
Pt VIII�� 308 S 610/99, Cap. 95 ��307
Environmental Public Health (Amendment EPM (Ozone Depleting Substances) Order
Act) No. 22 of 1999��307 (Ch 94A, S.77) ��307
Road Traffic Act, Cap. 276 EPM (Control of Noise from Construction
s 11AA ��302 Sites) Regulations 1999
Parks and Trees Act (Act 4 (S. 466/1999, Cap. 94A) �� 308
of 2005)�� 299, 309, 311 EPM (Trade Effluent) Regulations (S. 160/1999
Endangered Species (Import and Export) (RG 5) 2008)��305
Act, Act 5 of 2006)�� 299, 309, 311 EPM (Prohibition on the Use of Open Fires)
Workplace Safety and Health Act (Act 7 of Order (S 161/1999, 2008)��302
2006)�� 308 EPM (Air Impurities) Regulations (RG 8,
Road Traffic (Carbon Emissions) Tax 2012 S 595/2000 (2008)�� 300
(S 653/2012)��302 EPM (Vehicular Emissions) Regulations
Energy Conservation Act (Act 11 (Cap. 94A RG 6) ��301, 308
of 2012) �� 309 regs 12–19��301
ss 10–20�� 309 EPM (Off-Road Diesel Engine Emissions)
ss 21–32 ��310 Regulations, S 299/2012��301
ss 39–43�� 309 Parks and Trees (Heritage Roads Green Buffers)
ss 44–52��310 Order, Cap. 216 OR 2�� 309
lxvi table of legislation
Parks and Trees (Preservation of Trees) Order, s 2(4)(b)–(r) �� 323

Cap. 216, OR�� 309 s 2(4)(n)�� 317
Road Traffic (Motor Vehicles Registration and s 4(a) �� 323
Licensing) Rules s 24��1125
Rules 9, 9AA and 9C��302 National Water Act 36
Wild Animals (Licensing) Order�� 309 of 1998�� 323–4, 331, 429–30, 1125
Wild Animals and Birds (Bird Sanctuaries) s 3 and 3(1)�� 323
Order�� 309 §§ 1xviii(b), ss 12–13�� 428
Promotion of Access to Information
Act 2 of 2000 �� 1064
South Africa
Promotion of Administrative Justice
Legislation Act 3 of 2000 �� 319, 1064
Tax Act 58 of 1962��558 Local Government: Municipal Systems
Patents Act 1978 (Act No. 57 of 1978, as amended Act 32 of 2000 ��324
up to Patents Amendment Act 2002) s1��324
Art 4(b)��529 Mineral and Petroleum Resources Development
Western Cape Land Use Planning Ordinance Act 28 of 2002�� 323, 331
15 of 1985 ��328 Patents Amendment Act 2002��529
Constitution of the Republic of South Africa National Environmental Management:
1996�� 316, 1048 Protected Areas Act, 57 of 2003�� 325, 329
Preamble�� 332 s48 �� 325
s 2�� 316 National Environmental Management:
s 24�� 316 Biodiversity Act 10 of 2004��324, 329
s 24(b)(iii)�� 317 s1��324
s 27��320, 1067 National Environmental Management: Air
s 27(1)(b)��320 Quality Act No. 39 of 2004��1125
s 27(2)��320 Electricity Regulation Act 4 of 2006�� 332
s 32��320, 1063 National Environmental Management:
s 33�� 319, 1063–4 Integrated Coastal Management Act 24 of
s 34�� 1064 2008��328
s 39(1)(b)�� 317 National Environmental Management: Waste
s 40(1)�� 321 Act 59 of 2008��324, 329, 331, 634, 1125
s 41(1)��327 s1, 2(4)(d) and (e)��324
s 41(1)(g) �� 321 s 36(5)��638
ss 103–150�� 321 Water Pollution Control Law 2014�� 427
s 151(4)��327 s 19(1)�� 427
s 152 ��328 Western Cape Land Use Planning
s 231–232 �� 316 Act 3 of 2014��328
s 233 �� 317
Ch 2: Bill of Rights��316, 317–20, 1057 Regulations
Ch 3 ��321, 328 Energy Standard for Buildings with
Ch 4–7�� 321 mechanically assisted ventilation systems,
Ch IV�� 316 SANS 0204 (2007)��558
Sch 4��326 Presidential Proclamation on the Transfer of
Pt B��328 Administration and Powers and
Sch 5��326 Functions Entrusted by Legislation to
National Environmental Management Certain Cabinet Members in Terms of
Act 1998��316, 317–18, 322–5, 331, 1125 Section 97 of the Constitution Government
s 1 ��324 Gazette No. 32367, 1 July 2009 ��329
s 1(1)(xxix)��322 Government Notice R711/2011 of 9 September
s 2��322 2011, amending National Building
s 2(1)��322 Regulations and Building Standards Act
s 2(3)��322 103 of 1977��558
table of legislation lxvii
Environmental Impact Assessment Regulations, Arts 33�� 347, 348

2014, No. R. 982 Art 44��347
s 1 �� 889 Art 75��348
Chemicals Control Act (28 South Korean Law
No. 4261, as amended Law No. 13534
South Korea
as of 1 December 2015) �� 344–5
Legislation Art 28 and 41�� 344
Constitution of Korea 1988�� 334, 335 Soil Environment Conservation Act (South
Art 35(1) �� 336, 337, 338 Korean Law No. 4906, amended as
Art 35(2)�� 336, 337 Law No. 13534 as of 1 December 2015)
Arts 40, 66(4) and 101(1)�� 335 Art 4.2 ��342
Arts 107(1), 111–113��336 Art 10.3–10.4��343
Basic Environmental Policy Act 1987 ��334, Art 10–4��338
338, 346–7 Art 11(3), 14(1), 16–22��343
Art 2��339 Act on the Persons Performing the Duties of
Art 6�� 337 Judicial Police Officers and the Scope of
Art 7��338 Their Duties, South Korean Law No. 380,
Framework Act on Low Carbon, Green Growth, amended as Law No. 13601 as of 22
Act No. 9931, 13 January 2010��534 December, 2015
Wetlands Conservation Act (South Korean Law Arts 5(xxii), 6(xix)��347
No. 5866, amended as Law No. 13880 as Environmental Dispute Mediation Act (South
of 27 January 2014) Korean Law No. 4258, amended as Law No.
Arts 8–9�� 346 13602 as of 22 December 2015)�� 349
Act on the Conservation and Use of Biological Art 6, 33, 42(1) and 45.4�� 349
Diversity and Conservation and the Act on the Integrated Management of
Management of Marine Ecosystems Act Environment Polluting Facilities,
(South Korean Law No. 11257, amended as South Korean Law No. 13603��339
Law No. 12459 as of 18 March 2014) Art 24��339
Arts 11–13, 19, 21–15 �� 446 Air Environment Conservation Act (South
Act on the Control and Aggravated Punishment Korean Law No. 4262, amended as
of Environmental Offenses (South Korean Law No. 13874 as of 27 January 2016) �� 340
Law No. 4390, amended as Law No. 12738 Art 2�� 340
as of 3 June 2014) Art 35�� 340
Arts 12 and 15.2��347 Arts 46–76.8�� 340
Environmental Damage and Relief Liability Act Art 58��341
(South Korean Law No. 12949) �� 348–9 Wildlife Protection and Management Act
Art 7�� 349 (South Korean Law No. 7167, amended
Art 9��348 as Law No. 13882 as of
Arts 17–22�� 349 27 January 2016)�� 346
Electronic Recycling Act, South Korean Law Natural Environment Conservation Act (South
No. 8405, amended as Law No. 13038 as of Korean Law No. 4492, amended as Law No.
20 January 2015) 13885 as of 27 January 2016)�� 346
Art 15�� 346 Industrial Safety and Health Act (South Korean
Maritime Environment Preservation Act (South Law No. 3532, as amended Law No. 13906
Korean Law No. 8260, amended as Law as of 27 January 2016)
No. 13383 as of 22 June 2015)��342 Art 49.2��345
Fisheries Act (South Korean Law No. 295, Resources Recycling Framework Act (South
amended as Law No. 13385 as of Korean Law No. 14229, enacted on
22 June 2015.)��342 29 May 2016) �� 345–6
Water Quality and Ecosystem Conservation Recycling Act, South Korean Law No. 4538,
Act (South Korean Law No. 4260, amended as Law No. 14230 as of
amended as Law No. 13530 as of 29 May 2016
1 December 2015)��338, 342, 347–8 Art 16(1)�� 346
lxviii table of legislation
Environmental Impact Assessment Act (South Enforcement Regulation of MOE

Korean Law No. 4567, amended as Law No. 671 (21 July 2016)�� 340
No. 14232 as of 29 May 2016)�� 338–9 Art 4�� 340
Special Act on Remedy for Damage Caused by
Humidifier Disinfectants Spain
(South Korean Law No. 14566) ��345
Act for Development, Use, and Dissemination Legislation
of New and Renewable Energy Constitution of Spain
(South Korean Law No. 7284, amended as Art 45(1)��1078
Law No. 14670 as of 21 March 2017) Civil Code
Art 12–5–12–7��341 Arts 610, 611 ��474
Low Carbon, Green Growth Fundamental Act Art 1902��1029
(Legislation No. 15101)��339, 349 Art 1908��1030
Art 2(9)��341 Law on protected areas 1975�� 466
Art 38, para. 2��339 Consolidated Law on Water, Royal Legislative
Conservation and Management of Marine Decree 1/2001�� 426
Ecosystems Act (South Korean Law Law 5/2007��471
No. 15135) ��342 Waste and Contaminated Land Act 2011��638
Act on Activities in the Antarctic Area and the Art 3.x �� 634
Protection of Antarctic Environment Art 54.1�� 642
(South Korean Law No. 15787)��342–3
Special Act on the Improvement of Air Quality Sweden
in Seoul Metropolitan Area (South Korean
Law No. 15274) Legislation
Arts 14–22�� 340 Environmental Code of Sweden (Ds 2000:61)��
Act on the Allocation and Trading of 825, 1099, 1100, 1102
Greenhouse-Gas-Emission Permits�� 341–2 Ch 10 �� 634, 638
Art 2(1), 12(4)��341 Ch 11
Act on the Safety Management of Household § 13��435
Chemical Products and Biocides (South Ch 32 ��1031
Korean Law No. 15511)��345 s 1��1101
Korean Act on Registration, Evaluation, s 3��1103
Authorisation and Restriction of ss 6 and 7��1100
Chemicals (South Korean Law No. 11789, s 11 �� 1108
as amended Law No. 15512 as of 20 March Planning and Building Act
2018) �� 344 (Ds 2010:900)��825
Art 10, 29, 25, 27, 32–37 �� 344
Environmental Health Act (South Korean Law Switzerland
No. 15583)
Legislation
Art 19�� 349
Constitution 1874�� 462, 693
Regulations Code Civil, 23 December 2011
Vehicle Average Fuel Economy and GHG 641.71�� 915
Emission Standards (2012–15), Notification Federal Decree on Contaminated Sites
No. 2011–89 of the Ministry of Art 2�� 634
Environment �� 560 Arts 15 and 16 �� 642
Vehicle Average Fuel Economy and GHG Art 20��638
Emission Standards (2016–20), Notification CO2 Act 2013��1110
No. 2014–235 of the Ministry of
Environment �� 560
Ministry of Environment and the Subordinate
Thailand
Agencies, Presidential Decree amended by Legislation
Presidential Decree No. 27450 of 16 August Constitution of the Republic of Thailand 2007
2016 ��336 Art. 67 �� 463
table of legislation lxix
Enhancement and Conservation of National Wildlife and Countryside Act 1981��363

Environmental Quality s 28�� 834, 840, 845
Act B.E. 2535 (1992)��638 s 28E�� 364
s 28P(6)–(7)��845
Turkey s 28S�� 840
s 35(1)��839
Legislation s 37A��836
Law on the Environment, No. 2873 and Bylaw Pt I��363, 708
19919 (2008)�� 426 Pt II ��363
Court of Session Act 1988
Uganda s 27B(2) �� 369
Legislation s 27B(2)(a)�� 369
Wildlife Act 1996 Environment Act 1990
s 54�� 479 ss 1 and 4��1082
Pt V ��1082
Environmental Protection Act 1990
United Kingdom
s 33��1123
Legislation s 34��363
Game Act 1605 �� 462 s 34(6) ��363
The 1605 Act for the Better Preservation of Sea s 73(6)��1030
Fish imposed restrictions on the s 79��368
amount of fish that could be caught, and Pt I��863
certain types of fishing nets, including Pt II ��368
certain types of drag nets��855 Pt IIA�� 634, 635, 638, 641, 1082
Works Regulation Act 1881��863 Planning (Hazardous Substances)
Sea Birds Preservation Act of 1896�� 462 Act 1990��367
Wild Birds Protection Act 1872�� 462 Town and Country Planning
Commonwealth of Australia Constitution Act 1990�� 367, 709, 818
Act 1901 �� 60 ss 55, 57�� 709
s 9�� 60 s 106�� 711
s 51(i) ��63 s 288�� 368, 370
s 51(xx)��63 s 288(3)�� 369
s 51(xxix)��61 Ministers (Natural Heritage Scotland) Act 1991
Grey Seals Protection Act 1914��474 Sch�� 846
National Trust Act 1937 Water Resources Act 1991
s 8��710 s 94��362
Town and Country Planning Protection of Badgers Act 1992 �� 708
Act 1947��709, 818 Environment Act 1995��722, 1082
National Parks and Access to the s 4(1)�� 367, 722–3
Countryside 1949�� 466 ss 5–9��367
s 17 ��843 s 40�� 366
s 19�� 840 s 80�� 360
Countryside Act 1968 Pt II ��1082
s 15 �� 711 Pt IV��360, 1082
Conservation of Seals Act 1970�� 708 Ch 1 ��722
European Communities Act 1972�� 355 Finance Act 1996��916
Pollution Control Act 1974 �� 420 Human Rights Act 1998�� 355
Conservation of Wild Creatures and Scotland Act 1998��356
Wild Plants Act 1975�� 462 ss 28–30�� 357
Judicature (Northern Ireland) Act 1978 Sch 5��356
s 18(4)�� 369 Government of Wales Act 1998 �� 356, 357–8
Senior Courts Act 1981 s 22��358
s 31(3) and (6)�� 369 s 79(1)��358
lxx table of legislation
Sch 7��358 Water and Sewerage Services (Amendment) Act

Northern Ireland Act 1998 ��356 (Northern Ireland) 2010�� 357
ss 5–7�� 357 Localism Act 2011��818
Sch 2 and 3 �� 357 Wildlife and Natural Environment Act
Pollution Prevention and Control Act 1999 (Northern Ireland) 2011 �� 357
ss 2, 7(9), and Sch. 1��359 Landfill Tax (Scotland) Act 2014 ��916
Countryside and Rights of Way Regulatory Reform (Scotland) Act 2014
Act 2000 ��363, 845 Pt 3�� 371
Finance Act 2000 Wales Act 2014 ��358
s 30�� 360 Criminal Justice and Courts Act 2015��370
Sch 6��921 ss 88–90��370
Freedom of Information Act 2000��1087 Planning (Wales) Act 2015��358
National Parks (Scotland) Act 2000 Well-Being of Future Generations (Wales) Act
s 1 �� 840 2015 ��358
Sch 1�� 846 Environment (Wales) Act 2016��358
Title Conditions (Scotland) Act 2003 Wales Act 2017 ��358
s 38(1) and (2)��710
s 38(4)�� 711 Regulations
s 39�� 711 Title Conditions (Scotland) Act 2003
s 42�� 711 (Conservation Bodies) Order 2003�� 711
s 90�� 711 Environmental Information
Pt 9�� 711 Regulations 2004��973
Water Environment and Water Services Environmental Damage (Prevention and
(Scotland) Act 2003�� 357 Remediation) Regulations 2009
Nature Conservation (Scotland) Act 2004��357 reg 30��716
s 9��841 Air Quality Regulations 2010�� 360
s 38�� 836, 840 Schs 2–5�� 360
s 48(2) �� 840 Conservation of Habitats and Species
Environmental Assessment (Scotland) Act 2005 Regulations 2010
s 4(4) �� 357 reg. 61�� 364
Companies Act 2006�� Environmental Civil Sanctions (England)
Ss 172 and 417��991 Order 2010 �� 371
Natural Environment and Rural Communities Art 14��859
Act 2006��363 Town and Country Planning
s 7�� 711 (Environmental Impact Assessment)
Northern Ireland (St Andrews Agreement) Regulations 2011��354
Act 2006�� 357 Greenhouse Gas Emissions Trading Scheme
Tribunals, Courts and Enforcement Regulations 2012 ��1098
Act 2007 �� 371 Pt 7��860
Climate Change Act 2008�� 356, 360–1, 534–5, Environmental Damage (Prevention
543, 826, 991, 1110 and Remediation) England
ss 1–10 �� 360 Regulations 2015��367
Pt I and 2�� 360 Nitrate Pollution Prevention
Planning Act 2008�� 818, 823, 831 Regulations 2015��362
s 158 ��1116 Environmental Permitting
Regulatory Enforcement and Sanctions (England and Wales)
Act 2008�� 361, 371, 859, 1121 Regulations 2016�� 354, 359, 363, 367, 974
Climate Change (Scotland) Act 2009 ��357, 534 reg 2(1)��363
Electricity Act 2009��568 reg 12(1)��363
s 36��568 reg 12(1)(b) �� 361
Water Resources Act 2010 regs 26–7 and 32��359
s 161 �� 361 reg 34(1)��857
table of legislation lxxi
reg 36–37��363 Endangered Species Preservation

reg 38��359 Act 1966�� 462
reg 38(1)��363 Freedom of Information Act 1966�� 734, 978
Sch 21�� 361 Fair Packaging and Labelling Act 1967 ��522
para 3(1)�� 361 Pennsylvania Constitution 1968��1058
Water Supply (Water Quality) Art 1, §27��1058
Regulations 2016 �� 361 Wild and Scenic Rivers Act of 1968��419
Conservation of Habitat and Species National Environmental Policy Act 1970/
Regulations 2017 Regulations�� 386–7, 407, 725, 816, 386,
reg 20�� 711 823, 878–9, 882, 883,
Civil Procedure Rules (CPR) 884, 885, 886, 887,
rr 41–45��370 888–90, 891, 892, 893,
r 46.17��370 896, 897, 1087
rr 52.19, and 52.19A��370 § 1500.4 ��887
r 54.5 and 54.5(5)�� 369 § 1500–8�� 879
§ 1501.4(2)�� 890
§ 1501.5��887
United States § 1501.7�� 890
Legislation § 1502.13�� 886
Constitution �� 375, 376, 377, 387, 699 § 1502.14�� 888, 889
Art 1, § 7, Cl 1 ��910 § 1503.1(a)(4)�� 890
Art1, § 8, Cl 3�� 682, 694–5, 908 § 1505.5��895
Art 1(8), Cl 18�� 692 § 1506.6(b)�� 890
Fifth Amendment ��485 § 1508.4 �� 886
Tenth Amendment�� 908 § 1508.7�� 889
Eleventh Amendment��392 § 1508.8 �� 890
Lacey Act of 1900�� 462 § 1508.18�� 884
Federal Trade Commission Act 1926�� 1012 § 1508.28 �� 884
s 5�� 1012 § 4321–75(c)�� 878
Plant Patent Act 1930�� 525 § 4332��885
Federal Power Act 1935 �� 555 § 4332(c)�� 878, 884
Soil Conservation Act 1935��440, 456 Clean Air Act 1970 (as amended 1977
Soil ConservSoil Conservation and Domestic and 1990)��375, 377, 378–80, 381,
Allotment Act 1936, Public Law 74–761 387, 388, 89, 392, 407, 413, 537–8, 543,
Soil Conservation and Domestic Allotment 548, 552, 830, 1000
Act 1936��440 ss 107–110�� 408
Food, Drug, and Cosmetic Act 1938 ��522 s 111��409
Natural Gas Act 1938�� 555 s 111(a)(i)��863
Bald Eagle Protection Act 1940 ��474 s 113�� 408, 410
Administrative Procedure s 114 �� 410
Act 1946�� 387, 388, 392 s 202, 209, 211��409
s 553 ��388 ss 501–507 ��409
Lanham Act 1946�� 1012 § 7409(b)(1)�� 751–2
Federal Insecticide, Fungicide, and Title I�� 407
Rodenticide Act��1947 Title II �� 407, 409
��1000, 1019 Title IV-A ��414
Federal Tort Claim Act 1948��1101 Title V �� 407, 409
Federal Water Pollution Control Act 1948 Plant Variety Protection Act 1970 �� 525
s 301(b)(2)(A)�� 862 Clean Water Act 1972�� 375, 380–2, 383,
Atomic Energy Act 1954 ��555, 725 390, 420, 423, 426, 725, 1040
Wilderness Act 1964��471 §§ 301(a) �� 381
s 2(c)��471 § 305(b)�� 870
lxxii table of legislation
§ 404�� 486 Government Performance Results

§ 405(d)��863 Act 1993�� 819, 823
§ 502(7), 592(12)�� 381 Plant Protection Act 2000�� 514
§§ 1311(a), § 1362(7), 1362(12)�� 381 Energy Policy Act 2005�� 555, 563–4, 567, 725
§ 1362(19)��423 tits II, III, IV�� 555
Indian Wildlife (Protection) Act 1972 Restatement (Second) of Torts
s. 12�� 479 § 520�� 1099
Endangered Species Act 1973 ��393, 462, 477 Restatement (Third) of Torts: Products
s 4(a) �� 476 Liability 1998�� 1032
s 10��479, 486 Alien Torts Statute (1980)��1142–48
Resource Conservation and Recovery California Global Warming Solutions
Act 1976��382–4, 609–10, 611, 612, Act of 2006�� 540
616, 617, 622 Energy Independence and Security
§ 6903(27)��382 Act of 2007��538
Toxic Substances Control Act 1976 (as amended §§ 202(a)(2)(B)(ii)(I)��538
by the Frank R. Lautenberg Chemical §712(b)(3)(C) ��538
Safety for the 21st Century §§922(b)(2), 923(4)��538
Act 2016��580, 582, 585–6, 588, 591, 593, § 1101(g)��538
594, 598–604, 605–6 Consolidated Appropriations
§ 3(2) ��600 Act, 2008��538
§ 3(4), 3(12)��601 American Recovery and Reinvestment
§4�� 598, 604 Act 2009�� 557
§4 (a)(i)–4 (a)(iii)��604 Restatement (Third) of Torts 2010
§4 (b)(i), 4 (c), 4(h)��604 § 20��1031
§ 5��603–4 Disaster Relief Appropriations
§ 5 (e), (f)�� 603 Act, 2013 ��538
§ 6�� 586, 599, 600–3, 604 Consolidated Appropriations
§ 6(a)�� 602 Act, 2016��562
§ 6(b)��601 Frank R. Lautenberg Chemical Safety for the
§ 6(b) (1)(B)(i) and (ii) ��601 21st Century Act 2016 see Toxic Substances
§ 6(b) (1)(C)(iii) ��601 Control Act 1976 (as amended by the
§ 6(b) (4)(C) (ii)��601 Frank R. Lautenberg Chemical Safety for
§ 6(b)(4)(D) �� 602 the 21st Century Act 2016)
§ 6(b)(4)(F)�� 588, 602
§ 6(c), 6 (c) (i), 6(c )(2)(E) �� 602 Regulations
§ 6(g)�� 602 Code of Federal Regulations��388
§ 8��600 § § 261.3(a)(2), 261.3(c), 261. 12��383
Comprehensive Environmental Response, United States Code
Compensation and Liability Title 35, Section 161 ��527
Act 1980��384–6, 594, 634, 638, 642, Uniform Commercial Code
912, 1038, 1040, 1041 s 2�� 1032
§§ 9601–9675��384 Federal Rules of Civil Procedure
§ 9607(1)��384 Art 23��1039
§ 9607(b)(1)��385 75 Fed. Reg. 25324 (CAFE standards) ��548
Nuclear Waste Policy Act 1982�� 570 75 Fed. Reg. 31514 (PSD programme
Emergency Planning and Community requirements)��548
Right-to-Know Act 1986��591, 989 80 Fed. Reg. 205 (Clean Power Plan)��548
Robert T. Stafford Disaster Relief and Cal. Code. Regs. tit. 17 §§ 95460–95476
Emergency Assistance Act 1988��538 (2009)�� 546
Clean Air Act Amendments 1990 ��379–90, 409, US EPA, Mandatory Reporting of Greenhouse
1000, 1001 Gases, 74 Fed. Reg. 56260, 56260
Energy Policy Act 1992 �� 555, 562 (30 October 2009)
tits VI, XII, XIII, XX.A �� 555 § 307(d)��538
table of legislation lxxiii
Securities and Exchange Commission, Emission Guidelines and Compliance

Commission Guidance Regarding Times for Municipal Solid Waste
Disclosure Related to Climate Change, Landfills, 81 Fed. Reg. 59275
75 Fed. Reg. 6290, 6294 (29 August 2016) �� 552
(9 February 2010) ��550 Executive Orders
US EPA & National Transportation Highway Exec Order 12,191 (1981)��1076
Safety Administration, Light-Duty Vehicle Exec Order 12,866 (1993)��1076
Greenhouse Gas Emission Standards and Exec. Order 13514, Federal Leadership in
Corporate Average Fuel Economy Environmental, Energy, and Economic
Standards; Final Rule, 75 Fed. Reg. 25324 Performance, 74 Fed. Reg. 52117
(7 May 2010)��538, 560 (8 October 2009)��543
US EPA, Prevention of Significant Deterioration Exec. Order 13653, Preparing the United
and Title V Greenhouse Gas Tailoring Rule, States for the Impacts of Climate
75 Fed. Reg. 31514 (3 June 2010)��538 Change, 78 Fed. Reg. 66817
2017 and Later Model Year Light-Duty Vehicle (6 November 2013) ��543
Greenhouse Gas Emissions and Exec. Order 13677, Climate-Resilient
Corporate Average Fuel Economy International Development, 79 Fed. Reg.
Standards; Final Rule, 77 Fed. Reg. 62623 58229 (26 September 2014)��543
(15 October 2012)�� 560 Exec. Order 13690, Establishing a Federal
Energy and Water Use Labelling for Consumer Flood Risk Management Standard
Products under the Energy Policy and a Process for Further Soliciting
and Conservation Act, 16 Code of Federal and Considering Stakeholder
Regulations Part 305 (2013) �� 1007 Input, 80 Fed. Reg. 6425
US EPA, Standards of Performance for (30 January 2015)��543
Greenhouse Gas Emissions From New, Exec. Order No. 13,693, Federal Leadership
Modified, and Reconstructed Stationary on Climate Change and Environmental
Sources: Electric Utility Generating Units, Sustainability, 80 Fed. Reg. 15871
80 Fed. Reg. 64509 (23 October 2015)��538 (19 March 2015) ��543
US EPA, Carbon Pollution Emission Guidelines
for Existing Stationary Sources: Venezuela
Electric Utility Generating Units, 80 Fed.
Reg. 205 (23 October 2015)��538 Legislation
Federal Acquisition Regulation: Public Law on Risk Management 2009��539
Disclosure of Greenhouse Gas Emissions
and Reduction Goals-Representation, 81 Vietnam
Fed. Reg. 33192 (25 May 2016) ��543 Legislation
US EPA, Oil and Natural Gas Sector: Emission Biodiversity Law No. 20/2008/QH12 (2008)��463
Standards for New, Reconstructed,
and Modified Sources, 81 Fed. Reg. 35823
Zimbabwe
(3 June 2016)�� 538, 567
EPA, Standards of Performance for Municipal Legislation
Solid Waste Landfills, 81 Fed. Reg. 59331 Constitution of Zimbabwe 2013��
(29 August 2016) �� 552 s 73��1053–4
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.
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.
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 Socio-
Legal 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.
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, Chicago-
Kent 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.
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
lxxx abbreviations
IUCN International Union for Conservation of Nature

LMOs living modified organisms
MBIs market-based instruments
MEA multilateral environmental agreement
MoU Memorandum of Understanding
NEPA National Environmental Policy Act
NPC National People’s Congress
OECD Organisation for Economic Co-operation and Development
PIL public interest litigation
PP Progressive Party
PRC People’s Republic of China
PRTRs pollutant release and transfer registries
PSOL Socialism and Liberty Party
RPPNs private natural heritage reserves
TEL transnational environmental law
TEU Treaty on the European Union
TFEU Treaty on the Functioning of the European Union
TRC Truth and Reconciliation Commission
UNCCD 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
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
chapter 1
Compa r ati v e
En v ironm en ta l L aw
Structuring a Field
Jorge E. Viñuales
1.1 Overview 4
1.2 Comparative Law Methodologies 8
1.2.1 Preliminary Observations 8
1.2.2 The Historical Setting: Descriptive and
Evolutionary Approaches 10
1.2.3 The Conceptual Approach 11
1.2.4 The Functionalist Approach 12
1.2.5 The Factual Approach 13
1.2.6 Legal Formants 14
1.2.7 The Contextualist Approach 15
1.2.8 Legal Transplants 15
1.2.9 From Comparative Method to Comparative
Environmental Law 16
1.3 Methodologies Proposed by Environmental Lawyers 17
1.3.2 Bottom-up Functionalism 18
1.3.3 Top-down Functionalism 19
1.3.4 The Functionalist Approach and the Specificities of
1.4 The Methodological Approach Followed in this Volume 23
1.4.2 Identifying, Mapping, Organizing, and Analysing the Building
Blocks of Environmental Law Systems 24
1.4.2.1 Forms of Diversity to be Overcome 24
1.4.2.2 Diversity across Jurisdictions 24
1.4.2.3 Diversity in the Types of Responses to Common Problems 25
1.4.2.4 Diversity of Building Blocks 26
1.4.2.5 Diversity of Interactions 28
1.4.2.6 Overview of the Methodology 28
4 jorge e. viñuales
1.4.3 The Architecture of Environmental Law as a Single

Overall Technology 29
1.5 Concluding Remarks: Structuring a Field 30
1.6 Acknowledgements 31
1.7 Select Bibliography 31
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 con-
spicuously 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.
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 environ-
mental 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 sys-
tems 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.
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-climate-
change-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 perspec-
tive 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.
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 environ-
mental 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 gen-
eral 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 activ-
ity 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).
instruments (a Pigouvian tax or Coasian trading) but, more generally, that of the bulk of envir-
onmental 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 meth-
odologies proposed by comparative law experts (section 1.2). As none of these methodolo-
gies was developed taking environmental law explicitly into account, and they have seldom
been used to study comparative environmental law, the next section discusses some meth-
odologies 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. Khan-
Freund (‘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,
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 rec-
ognition 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 subse-
quent 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.
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 gath-
ering 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 coun-
try 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.
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 com-
parative 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 pre-
cisely 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.
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 func-
tion 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, func-
tion 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 arrange-
ments 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, per-
haps, 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 oppos-
ing 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.
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 illustra-
tion, 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 con-
sidered 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 under-
stand 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.

50 See the contribution by T. Markus. 51 See the contribution by A. Saab.
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.
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 deci-
sions. 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 per-
spective 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 focus-
ing 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.
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 compre-
hensive 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 inter-
vention. 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:
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 under-
standing 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 compara-
tively 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).
1.3 Methodologies Proposed by

Environmental Lawyers

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 underpin-
ning 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 environ-
mental 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 subse-
quently 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’.
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 environ-
mental 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.
level).79 Sectorially, responsibility for some specific area or problem (e.g. water or air pollu-
tion) 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 obliga-
tions, 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 deter-
mine 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.
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.
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 con-
sistent with Lutz’s (distinguishing private and administrative responses and, among the
latter, analyzing the institutional organization and the regulatory techniques used for pre-
ventive 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.
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 distinc-
tion 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 regu-
lated 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 sys-
tems 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. 102 Ibid., at 95–7.

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 com-
monality 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 admin-
istrative 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.
complexities arising in federal systems as well as in other systems where territorial sub-
divisions (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 spe-
cificities 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 men-
tioned earlier.
Regarding the transversal elements to be identified in each jurisdiction and compared,
Robinson provides a cartography based on a tripartite distinction between: substantive sub-
jects, 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, environ-
mental 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 shortcom-
ings 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 devel-
opment 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

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.
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 coun-
tries (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, regula-
tions, 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).
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 com-
mon 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 regard-
ing 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.
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 disadvan-
tages. 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, there-
fore, 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 encompass-
ing 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 sub-
sumed, in pursuance of a free-market agenda, under the broad category of ‘regulation’, a
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 require-
ments, 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 compre-
hensive 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 inter-
vention 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 sys-
tems, addresses the diversity of building blocks by introducing a distinction between the
legal organization of the infrastructure of such systems and the policy intervention instru-
ments 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.
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 classifica-
tions (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 con-
ceptual 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.
Countries
(Part I)
Interactions Environmental Law Problems

(Part IV) Systems (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 over-
all 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 tech-
nology 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 pur-
poses, 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.
Scale: from particular to general

Stage I: Stage II: Stage III: Stage IV:
Analysis of Responses to System components Interactions with
different common problems the broader context
countries
Main areas: Common problems: Specific Interactions with:

infrastructure:
1. Allocation of 1. Air pollution 1. Environmental 1. Public law
powers among 2. Water management principles 2. Private law
sectors, scales 3. Land degradation 2. Distribution of 3. Criminal law
and stakeholders 4. Nature powers 4. Private
2. Structure and conservation 3. Property systems international
substance of the 5. Fisheries 4. Regulatory law
relevant laws and management organisation 5. Public
regulations 6. Genetically 5. Science and policy international
3. Implementation modified organisms interface law
frameworks 7. Climate change and 6. Transnational
energy transitions networks
8. Chemical 7. Adjudication systems
regulation Policy instruments:
9. Waste regulation Command-and-control
10. Contaminated 8. Planning instruments
sites 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
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
‘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 desig-
nated 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 con-
struction 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.

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 contem-
porain’ (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
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).
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 environne-
mentaux, 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: Bubenberg-
Verlag, 1977).
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).
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 40
2.2.2 Model-thinking and Potential Assumptions 42
2.2.2.1 Transplantation in Toto 42
2.2.2.2 Failure in Design and Instrumental Outcomes 43
2.2.3 Avoiding the Pitfalls 45
2.2.3.1 Selective Detail to Allow for Analytical Comparison 45
2.2.3.2 Design as Distinct from Causation 46
2.2.3.3 Going Beyond Analytical Assumptions Regarding
‘Good’ Environmental Law 47
2.2.4 Conclusions on Instrumentality 47
2.3 Legal Culture 48
2.3.1 Mapping Context 48
2.3.1.1 Context in Individual Chapters 48
2.3.1.2 Culture as Part of Structure 49
2.3.2 The Attitude towards Compliance and Wider Cultural
Approaches to ‘the Environment’ 50
2.3.3 Rights-based Thinking 51
2.3.4 Constitutionality 53
2.3.5 Conclusions on Legal Culture 54
2.4 Value in Model-thinking 55
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 compara-
tive 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.
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 prac-
tices, 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, with-
out 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.
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, model-
thinking could be structured around the power-influences which particular types of regula-
tory 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 cartograph-
ical analysis by exploring the relationships between the environmental legal structures,
such inherent legal values, and the forces that shape both. Furthermore, such instru-
mentalist 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 translat-
able 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 dem-
onstrate 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.
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’ instrumen-
talism 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.
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:
8 See chapter 28.
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 poten-
tially 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 prem-
ised 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 under-
standing 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.
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.
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 resist-
ance 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 anti-
instrumentalism, 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 instru-
mental outcome—does the measure actually achieve environmental protection?—but again
18 See the discussion in chapter 39.

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 instru-
mental 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.
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 simpli-
fied 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 con-
sider 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.
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 con-
text 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 devolu-
tion, 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 respon-
sibility 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 govern-
ment 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
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 integra-
tion 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, model-
thinking 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
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 under-
standings, 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).
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 over-
lapping 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.
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 cartog-
raphy, 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.

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 influ-
enced 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 neces-
sarily 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.
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 agree-
ments 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.
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 pro-
tected 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 con-
stitutional 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 consti-
tution, 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).
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 edi-
torial 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 constitu-
tional 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 influ-
ence 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.
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 constitu-
tional 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 environ-
mental 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 sensi-
tive 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 environmen-
tal 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.
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 con-
text 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 some-
where. 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 les-
sons 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.
pa rt I
C OU N T RY
ST U DI E S
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 60
3.2.1.1 The Division of Legislative Capacity Between the
States and the Commonwealth 61
3.2.1.2 The Relationship Between Commonwealth and State
Legislation in Practice 63
3.3 The Structure and Substance of Environmental Law 65
3.3.1 Protection from Pollution and Harm 66
3.3.1.1 Pollution 66
3.3.1.2 Harm 67
3.3.2 Conservation of Environmental Values 68
3.3.2.1 Protected Areas and Species 68
3.3.2.2 Heritage Conservation 69
3.3.3 The Evolution of Ecologically Sustainable Development 70
3.3.3.1 Controlling Land Use 70
3.3.3.2 Ecologically Sustainable Development and
Climate Change 71
3.3.3.3 Judicial Responses to Climate Change 72
3.3.3.4 Statutory Responses to Climate Change 73
3.3.3.5 The Relevance of Polycentric Decision-making 75
3.4 The Implementation Framework 76
3.4.1 Introduction 76
3.4.2 The Need for Information and Analysis 76
3.4.3 Remedies And Sanctions 77
3.4.3.1 Introduction 77
3.4.3.2 Enforcing Liability Rules 77
3.4.3.3 Enforcing Decision-making Rules 79
3.4.3.4 The Nature of Environmental Litigation 79
3.5 Conclusion 80
3.6 Selected Bibliography 80
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 envir-
onment 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 prin-
ciple 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.
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 specify-
ing 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 involv-
ing 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.
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 con-
sider 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 envir-
onmental 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 conse-
quence 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 con-
tained 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.
australia 63
their status as obligations? Not so. There is a distinction between a discretion as to the man-
ner 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 law-
fully 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 pro-
duction, 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 con-
trol 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.
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 environ-
mental 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 manage-
ment 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 spe-
cifically 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 develop-
ment. 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.
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 inter-
state 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 cor-
porations’ 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 govern-
ance normally within the competence of a state.
3.3 The Structure and Substance

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.
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 methodo-
logical 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 differ-
ently, 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.
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 prem-
ises 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 methodo-
logical 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 phys-
ical 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 character-
istic 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 author-
ized 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.
48 Environmental Protection Act 1994 (Qld), ss. 15–17. 49 Ibid., s. 493A.
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 consid-
erable 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 envir-
onment 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 applica-
tion, to give effect to the objects of the Act’.52 This brings together—in the context of inter-
preting 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 obliga-
tion 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 man-
aged 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.
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 ques-
tion 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 author-
ization.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.
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, recon-
struction, 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 assess-
ment 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’ con-
notes the protection of the environment—ecocentricity. The adjective ‘sustainable’ connotes
conservation. ESD incorporates the three distinctive elements—economic, social, and eco-
logical 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.
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 encour-
age ESD.80 The Development Act 1993 of South Australia is similarly concerned with sustain-
ability 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.
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.
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 geoseques-
tration
• 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 green-
house 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 discus-
sion 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 develop-
ment, 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.
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 sustain-
able 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 devel-
opment 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.
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 acqui-
sition 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.
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 com-
plexity of the law merely reflects the complexity of the concept.
The decision-making processes involved in achieving ecologically sustainable develop-
ment 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 polycen-

tric 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 judi-
cially 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].
76 douglas fisher
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 acquisi-
tion 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.
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.
australia 77
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 jurisdic-
tions 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).
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.
australia 79
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 regu-
lated 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 involv-
ing 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 enforce-
ment 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.
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 develop-
ment, 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).
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
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 84
4.2.1.1 Federal and State Government Ownership and
Power to Manage Resources 84
4.2.1.2 Power to Legislate on Environmental Matters 85
4.2.2 Constitutional Environmental Rights and Responsibilities 87
4.2.2.1 Right to an Ecologically Balanced Environment 87
4.2.2.2 Ecological Function of Property 87
4.2.2.3 Additional Constitutional Provisions and
Principles 89
4.3 Structure and Substance of Environmental Law in Brazil 89
4.3.1 Development of Environmental Law in Brazil 89
4.3.2 Major Statutes and Bodies of Law 90
4.3.2.1 National Environmental Policy Act of 1981 (Lei 6938/81) 90
4.3.2.2 Environmental Impact Assessment (Conama
Regulation No. 1 of 1986 and No. 237 of 1997) 92
4.3.2.3 The 2012 Forest Code 93
4.3.2.4 Protected Areas (2000) 96
4.3.2.5 Environmental Crimes (1998) 96
4.3.2.6 Additional Environmental Statutes—Water Law,
Climate Change, and Solid Waste 97
4.4 Implementation: The Critical Challenge 98
4.4.1 Executive Branch and Administrative Agencies 99
4.4.2 Prosecutors (Ministério Público) 100
4.4.3 Judiciary 101
4.4.3.1 Basic Judicial Structure of Brazil 101
4.4.3.2 Environmental Jurisprudence and the STJ 102
Brazil 83
4.5 Law in Action: Deforestation and Land Use Change

in the Amazon 104
4.6 Conclusion 106
4.7 Selected Bibliography in English 107
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 fed-
eral 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 implementa-
tion 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 combat-
ing 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.
84 Antonio Herman Benjamin and Nicholas Bryner
4.2 Constitutional Foundations

and Federalism
Brazil is a federal republic. The Federal Constitution of 19885 provides the institutional frame-
work 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.
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 compensa-
tion 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 inconsist-
ent 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).
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 mat-
ters, such as forest and vegetation management (including forest and vegetation on private
rural landholdings, a critical issue with regard to deforestation), transportation of hazard-
ous 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 recog-
nized 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 enforce-
ment 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 prosecu-
tors’, 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.
Brazil 87
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 pro-
visions 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.
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, particu-
larly 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 endan-
gered 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.
Brazil 89
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 protec-
tion 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’.
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, devel-
oping 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 per-
spective. Furthermore, together with a larger societal push towards greater democratiza-
tion 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, restor-
ation, 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.
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 pre-
cautionary 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.
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, unsuccess-
fully 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 ‘instru-
ment’ 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.
74 This concept is referred to under the US National Environmental Policy Act implementing regu-
lations as the ‘no action’ alternative. See 40 CFR 1502.14(d).
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 over-
turned 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
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/timeline-
of-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.
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 restor-
ing 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 judi-
cata, 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 previ-
ous 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, includ-
ing 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.
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 por-
tion of the statute that removed strict protection (as permanent preservation areas) of ‘inter-
mittent 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 uncer-
tainty 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 solu-
tion 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.
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 desig-
nates 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 edu-
cational 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
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, imprison-
ment, 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 signifi-
cant 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 commu-
nity 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.
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 haz-
ardous 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 inde-
pendent 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 pro-
moting 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’.
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 establish-
ing 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 govern-
ment, 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).
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 chal-
lenge 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 gov-
ernment. 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-ops-
with-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 monu-
ments, 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.
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 signifi-
cant 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 environ-
ment, 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 particu-
lar 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 enforce-
ment (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 pollu-
tion’ (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.
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 intro-
duces 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 prece-
dent 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 subse-
quent 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 expand-
ing 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’.
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 con-
stitutional 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 drain-
ing 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.
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 environ-
mental law through the articulation and application of creative new environmental law
principles, such as the ecological function of property, the propter rem nature of environ-
mental 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 tremen-
dous challenges for environmental law. The geographical mismatch between hydrological
and political boundaries makes ecosystem management and planning difficult. The remote-
ness 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.
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, includ-
ing 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 gov-
ernment, 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.
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, unfortu-
nately 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-terras-
indigenas.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.
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
171 Findley, ‘Pollution Control in Brazil’, at 30.

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 109
5.2.2 Compromise Before Confrontation: Canadian
Environmental Federalism 111
5.2.3 Flirting with Subsidiarity: Municipal Environmental Powers 113
5.2.4 Citizens and the State: Environmental Rights and
Electoral Politics 113
5.3 Environmental Regulatory Models: A Limited Imagination 114
5.3.1 Command Regulation 114
5.3.2 Information-based Regulation 115
5.3.3 Economic Instruments 117
5.3.4 Civil Litigation 118
5.3.5 Environmental Principles 120
5.3.5.1 The Polluter-Pays Principle 120
5.3.5.2 The Precautionary Principle 120
5.3.5.3 Sustainable Development 121
5.3.5.4 Environmental Justice 122
5.4 Implementation Framework: Encouraging Development(s) 123
5.4.1 Institutions 123
5.4.2 Public Enforcement 124
5.4.3 Private Enforcement 125
5.5 Conclusion 126
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 envir-
onmental 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 environ-
mental rights. Before delving into these questions I address an issue that arises from the his-
torical 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 com-
munities; 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.
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 sim-
ple 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 indigen-
ous 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 inher-
ent 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), avail-
able 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.
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, govern-
mental 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 environ-
ment 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.
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 regula-
tion 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 environmen-
tal 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 spe-
cies, 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 com-
petition, 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 envir-
onmental 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 municipal-
ities 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
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 environ-
mental 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 conven-
tional 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 instru-
ments, 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.
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 effi-
ciency 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 bar-
gaining, 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 exist-
ing 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 sen-
sitivity, 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.
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 pro-
grammes 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 much-
maligned 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 assess-
ment, 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 estab-
lished in 1992. PRTRs have also been established by some Canadian provinces and munici-
palities. Canada, Mexico, and the United States established the first international PRTR in
1996, via the North American Commission for Environmental Cooperation. Typical limita-
tions 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).
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 terri-
tories 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 coun-
terparts 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/.
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 provin-
cial 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 com-
mon 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 deci-
sions 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 distin-
guish 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.
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 com-
mon 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 per-
mitting 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.
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 scien-
tists 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 com-
munities 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 gov-
ernments 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.
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 dis-
proportionately 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 racial-
ized 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 envir-
onmental burdens borne by indigenous peoples, from displacement for resource develop-
ment 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 environ-
mental 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 environ-
mental 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.
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 tri-
bunals, 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 imple-
mentation 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 informa-
tion 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 substan-
tial 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).
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 environ-
mental offences ‘as crimes, not as morally blameless technical breaches of a regulatory
standard’,116 prosecution and conviction are rare, fines are small, compliance and enforce-
ment 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 edu-
cation, 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 environmen-
tal 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-change-
internal-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
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 commit-
ted 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 appropri-
ate 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.
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 prosecut-
ing 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 enforce-
ment branches, sustainability assessment, proactive municipalities, carbon taxes, and feed-
in 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 collabora-
tive 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
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.
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.
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.

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?’
chapter 6
Peopl e ’ s R epu blic

of Chi na
Xi Wang
6.1 Overview 129

6.2 Allocation of Powers 130
6.2.2 Constitutional Provisions 130
6.2.3 The Political System 130
6.2.3.1 General Organization 130
6.2.3.2 Environmental Legislation 131
6.2.3.3 Law Enforcement Inspection 132
6.2.3.4 Oversight of Government Work 132
6.2.3.5 Power Relating to Budgets 133
6.2.3.6 Appointing and Dismissing Governmental Officials 133
6.3 Structure and Substance of the Law 133
6.3.2 Environmental Laws 134
6.3.2.1 The Environmental Protection Law (2014) 134
6.3.2.2 Other Environmental Laws 135
6.3.3 Environment-related Laws 135
6.4 Implementation Framework 136
6.4.2 Administrative Institutions 137
6.4.2.1 Organizational Structure 137
6.4.2.2 Enhanced Enforcement Powers 138
6.4.2.3 Cadre Evaluation 138
6.4.3 Judicial Organization 139
6.4.3.1 Overview of the System 139
6.4.3.2 The Rise of Environmental Public Interest Litigation 140
6.5 IPPEP Model and Environmental Governance in China 141
6.5.1 Major Parties and Players 143
6.5.2 Rules of Conduct 145
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
6.1 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 respect-
ively 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 (reser-
voirs). 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/.
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 govern-
ment 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 excep-
tion 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
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 legis-
lation. 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).

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 Open-
door 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, des-
erts, 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 environ-
mental 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.
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 Category 3 Laws on Category 4 Laws on Category 5 Treaties

Pollution Control Conservation of Specific Environmental
Nature and Natural Matters • Climate change
• Air pollution Resources • Ozone Layer
• Water pollution • Environmental • Biodiversity
• Pollution caused by • Water impacts • Basel Convention
solid wastes and • Land management assessment (EIA) • CITES
hazards wastes • Fishery • Clean production • Rotterdam
• Noise pollution • Mineral resources promotion Convention on
• Radioactive • Forests • Circular economy chemicals
pollution • Grassland promotion • POPs
… • Wildlife … …
• Marine
environment
• Utilization of
marine areas
• Water and soil
conservation
• Desertification
…
Figure 6.1 System of Environmental Law of China

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 pro-
tection 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 five-
year 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 civil-
isation’, 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.
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 pro-
tection 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 govern-
mental 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).
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 eleva-
tion 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.
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 protec-
tion. 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’.
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 non-
compliant 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 deten-
tion 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 informa-
tional tools for the enforcement of environmental law. In turn, EPBs are themselves respon-
sible 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 dif-
ferent 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.
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; administra-
tive 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).
140 xi wang
Supreme People’s Court
Special People’s Courts
High People’s Courts Military Courts
Intermediate People’s Courts Maritime Courts
Railway Transport Courts

Local People’s 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 admin-
istration 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 estab-
lished 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 tribu-
nals 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).

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).
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 indi-
vidual 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 neverthe-
less 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.
142 xi wang
Law, Regulations
f CCP and Gove
iplines o rnm
c ent
Dis Environmental Ethics
The Third Party

SUPERVISORS: Committees of CCP,
People’s Congresses, Citizens,
Social organizations, News media, Courts, etc
Supervisory Supervisory
Interactions Interactions
Governments, Enterprises
CCP Regulatory
Interactions
REGULATORS, REGULATEES,
SUPERVISEES 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 sur-
rounding 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.
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 connect-
ing 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 super-
visors 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 ‘super-
vision 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 running-
wild, 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).
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 super-
vise 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 govern-
ment (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 govern-
ment, especially local governments, are usually described as ‘referee’ and ‘athlete’. The former
refers to the environmental regulator and the latter refers to the environmental problem-
maker. 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).
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 gov-
ernment 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 dem-
onstrated 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 (super-
vised 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 imple-
mented 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
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 envir-
onmental 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 dis-
charge their environmental duties (ethical or legal) in the process of environmental govern-
ance. 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.
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.

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).
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).
chapter 7
The Eu rope a n U n ion

Markus Gehring, Freedom-Kai Phillips,
and Emma Lees

7.2 Constitutional Basis for Environmental Regulation
in the European Union 151
7.3 Structure and Substance 153
7.3.1 Transversal Regulation 154
7.3.1.1 Environmental Principles 154
7.3.1.2 Access to Information and Justice 155
7.3.1.3 Environmental Impact Assessment and Strategic
Impact Assessment 156
7.3.1.4 Liability for Environmental Damage 156
7.3.2 Sectoral Controls 157
7.3.2.1 Waste 157
7.3.2.2 Chemicals 159
7.3.2.3 Water 159
7.3.2.4 Conservation 160
7.3.2.5 Climate Change 161
7.3.2.6 Air Quality 162
7.3.3 Indirect and Other Influences 163
7.4.1 Overview 163
7.4.2 Administrative Enforcement and the Role of the
Member States 164
7.4.3 The Role of the Court of Justice of the European Union 164
7.4.3.1 Foundational Authority 164
7.4.3.2 Influence in Practice 165
7.4.3.3 Comparative Environmental Law in the CJEU:
Modes of Engagement 166
7.5 Conclusion 169
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 environ-
mental 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 imple-
mentation, 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 par-
ticular in the concluding section. A product of practicality, if not necessity, the integration
of comparative environmental legal development across the EU provides institutional pil-
lars 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 con-
stitutional 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 includ-
ing 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
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 legis-
lative 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.
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 ground-
ing 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 direc-
tives 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://eur-
lex.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 motor-
cycles 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/legal-
content/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.
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 inter-
national 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 com-
promise-driven legislation exemplified the raison d’etre of integration.28
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/our-
common-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.’
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 chem-
icals 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 trans-
versal 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.
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 con-
texts, 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 respect-
ing 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 insti-
tutions 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 environ-
ment 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.
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 inter-
vened 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 require-
ments 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 prin-
ciples, 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 envir-
onment 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 envir-
onment (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 pro-
posed 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 pro-
vided, 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 author-
ities, 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.
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 demon-
strated 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.
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 manage-
ment 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 con-
sumption and production.55 First, proposed Article 4(3) requires specific economic
instruments which incentivize recovery processes, rather than such being simply pro-
moted, 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-11e5-
b3b7-01aa75ed71a1.0018.02/DOC_1&format=PDF.
56 Ibid., at 14; proposed Art. 4(3).
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 environ-
mental 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.
(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 signifi-
cant 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 pub-
lic 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 bio-
diversity 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.
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 pro-
tected 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 trad-
ing 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 dem-
onstrated 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 under-
mine 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.
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 broad-
ened 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, notwith-
standing 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 eco-
logically 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 litiga-
tion 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.
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 encour-
age 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 cer-
tain environmental offences80 and to a certain extent the Environmental Liability Directive,
which, in parts, depends upon prior categorizations of land, for example, under conserva-
tion regulations.
There is, finally, a third level of influence which the Union has on Member State environ-
mental 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 envir-
onmental 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.
7.4.1 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.
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 facili-
tates 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 develop-
ment 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.
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 ref-
erences 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 harmo-
nious picture. Rather, the style of the CJEU’s judgments (abstracted, rather than discur-
sive) 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 insist-
ence 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 meas-
ure, 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-29a2-4ba5-99a6-
da45b05cb305.0002.03/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.
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 suffi-
ciently 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 prac-
tice, 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 tech-
niques 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 con-
cerned 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 burn-
ing 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.
the least environmentally impactful method provided for in the Directive, the Court ref-
erenced 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 legisla-
tion99 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 compara-
tive 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 penal-
ties 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.
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 iden-
tified 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 devel-
opment’ 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 dam-
ages, 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 unify-
ing 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.
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.

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).
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).
chapter 8
Fr a nce
Laurent Neyret

8.2.1 The Codification of French Environmental Law 173
8.2.2 The Constitutionalization of French Environmental Law 173
8.2.3 Integration of International and European Law into French
8.2.4 The Evolution of Environmental Governance in France 176
8.3 Structure and Substance of Environmental Law 177
8.3.1 Environmental Public Law 177
8.3.2 Environmental Private Law 179
8.3.3 Need to Reinforce the Coordination of French Public
and Private Environmental Law 180
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 Selected Problems 182
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
8.6 Conclusion 188
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 sub-
ject to transformation. Its rules have significantly expanded, but without any general con-
sistency, 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 pro-
tection 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 envi-
ronnementale 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.
france 173
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 abun-
dance 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 docu-
ment 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 bal-
anced environment respectful of health’ (Article 1), the prevention principle (Article 3), the
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 promo-
tion 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 pre-
vent 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, regard-
less 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.
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 environmen-
tal 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 con-
vention.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 relat-
ing 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 pro-
vided 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 multi-
plied 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.
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 obliga-
tions 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 col-
lective 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 account-
ing 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 res-
toration obligation through the purchase of ‘compensatory units’ from the manager of a
natural compensatory site approved by the government,8 drawing inspiration from mitiga-
tion 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.
france 177

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 regu-
latory 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 prac-
tice, 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.
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 regu-
lation 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 num-
ber 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.
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 strin-
gent 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.

180 laurent neyret
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 consid-
eration, on the day of their decision, measures ‘already taken’ in the course of the adminis-
trative procedure,21 and, conversely, for administrative authorities in case of pollution.22
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: infrastruc-
ture; 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 com-
pleteness, 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 represen-
tatives 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.
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 implemen-
tation 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 biodiver-
sity 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.
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 des-
troyed 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.
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 land-
mark 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).
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 eco-
logical 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 meas-
ures 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 allo-
cation 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.
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 monet-
ary 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 regard-
ing 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 dam-
age 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 par-
ticular 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 pro-
tect 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.
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 sys-
tematic prosecution in cases of serious or irreversible damage. According to this adminis-
trative 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.
france 187
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 informa-
tion 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 specif-
ically, 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 eco-
nomic 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.
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.
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 resi-
dential area, even though it was in compliance with the emission threshold for electromag-
netic 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 con-
sumers and competitors. Accordingly, consumer law encourages professionals to establish
environmental labels on their products, whether regarding their carbon footprint, consump-
tion 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 liabil-
ity 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 consoli-
dation of environmental protection is not yet complete. In the future, it should be strength-
ened 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. 60 Cour d’appel de Versailles, 4 février 2009.
61 Article L. 112–10 du Code de la consommation. 62 Cass. com., 21 janvier 2014, n° 12–25.443.
63 http://pactenvironment.org/.
france 189

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).
chapter 9
Ger m a n y
Olaf Dilling
and Wolfgang Köck
9.1 Introduction: The Characteristics of German

9.2.1 Environmental Constitutionalism: National Objectives
and Obligations to Protect 192
9.2.2 Devolution of Legislative and Executive Competences 194
9.2.2.1 Commitment to International and EU Law 194
9.2.2.2 Legislative Competences 194
9.2.2.3 Executive Competences 195
9.3.1 Combating Air Pollution and Climate Change by Regulating
Industrial Plants 197
9.3.1.1 Air Pollution Control 197
9.3.1.2 The Regulation of Point Sources: Industrial
Installations Legislation 198
9.3.1.3 Climate Protection 199
9.3.2 Water Legislation 200
9.3.2.1 Status of Water Bodies 201
9.3.2.2 Water Protection 201
9.3.2.3 Water Protection and Agriculture 202
9.3.3 Waste Legislation 203
9.3.4 Nature and Species Protection Legislation 204
9.3.5 Nuclear Legislation 206
9.5 Conclusion 209
germany 191
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 agenda-
setting 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 admin-
istrative 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.
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 opportun-
ities 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 compe-
tent 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
9.2.1 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.
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 environ-
mental 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 far-
reaching 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 lit-
erature 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 gener-
ates 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 imple-
mentation 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.
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 signifi-
cantly 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.
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 com-
prehensive 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 fed-
eral 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 com-
bined 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).
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.

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 free-
doms, 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 renew-
able 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 organ-
ization 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.
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 (Bundes-
Immissionsschutzgesetz) 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.
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 envir-
onment 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 pollu-
tants, 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 limita-
tion 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 preven-
tion 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 preven-
tion 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.
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.
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 con-
ducted 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.
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 ubiqui-
tous 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.
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 des-
ignation of water bodies as ʻsignificantly altered water bodiesʼ. See BMU, Die Wasserrahmenrichtlinie, 53.
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 moni-
tor 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 com-
prehensive 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 dis-
posal 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 legis-
lation, 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 fill-
ing 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.
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 (Kreislaufwirtschafts-
und 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 obli-
gations) 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 man-
datory 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 diver-
gences 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.
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 hith-
erto 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 there-
fore 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.
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
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 environ-
mental 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 evalu-
ation 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 per-
formance 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?’
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 public-
law 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 require-
ment, 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 legisla-
tion, 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 implementa-
tion 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.
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 adminis-
trative decision-making, but also in informal self-regulatory rule-making and in legal pro-
cedure 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 deter-
mine 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 implemen-
tation 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 signifi-
cantly 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 protec-
tion 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.
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 pri-
marily 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 inter-
pretation 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 environ-
mental 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 com-
pulsory by fleshing out administrative rules. This becomes most obvious in areas where a
106 BVerfGE 134, 366–438.

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 infra-
structure 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, market-
oriented solutions, and incentive systems.
To sum it up, while it proves beneficial to keep some of its advantages, German environ-
mental 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.
The authors would like to thank Moritz Reese and Harry Bauer for helpful comments and assistance.
The usual disclaimer applies.

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.
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.
chapter 10
I n di a
Bharat H. Desai and Balraj K. Sidhu
10.1 Overview 213

10.3.1 The Importance of Policy 215
10.3.2 Legislative Framework 217
10.3.2.1 The Water (Prevention and Control of Pollution)
Act, 1974 217
10.3.2.2 The Water (Prevention and Control of Pollution)
Cess Act, 1977 218
10.3.2.3 The Air (Prevention and Control of Pollution)
Act, 1981 218
10.3.2.4 The Wildlife (Protection) Act, 1972 218
10.3.2.5 The Forest (Conservation) Act, 1980 219
10.3.2.6 The Environment (Protection) Act, 1986 219
10.3.2.7 The Public Liability Insurance Act, 1991 220
10.4.1 The Ministry Of Environment, Forests, and
Climate Change 220
10.4.2 Central Pollution Control Board 221
10.4.3 State Pollution Control Boards (SPCBs) 222
10.4.4 Key Challenges 222
10.4.5 Role of the Judiciary 223
10.4.5.1 Doctrine of Absolute Liability 223
10.4.5.2 Polluter-Pays Principle 224
10.4.5.3 Precautionary Approach 224
10.4.5.4 Doctrine of Public Trust 225
10.4.5.5 Sustainable Development 225
10.4.5.6 The National Green Tribunal Act, 2010 226
10.4.5.6.1 Sand Mining 227
10.4.5.6.2 Marine Oil-spill Pollution 228
10.4.5.6.3 Air Pollution in the National
Capital Territory 228
india 213
10.4.5.6.4 Illegal Slaughter Houses 229

10.4.5.6.5 Ganga Pollution Cases 229
10.5 Conclusion 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.
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 pro-
visions 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.
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 safeguard-
ing 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 enforce-
able 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 regulat-
ing 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/coi-

4March2016.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 emer-
gency 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/coi-
4March2016.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.
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 provi-
sions 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.

10.3.1 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 Treaty-
Making 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.
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 geograph-
ical 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 agro-
forestry 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 commu-
nities. 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 pro-
vides 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 equi-
librium 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 sus-
tainable 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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processes. The NEP also emphasizes the need to institutionalize mechanisms to operation-
alize 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 conserva-
tion. 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 public-
private 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 prob-
lems 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 expe-
rience. 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.
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 pollu-
tion 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 can-
cel 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 govern-
ments 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 com-
merce 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 separ-
ately 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 sec-
tions 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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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 sanc-
tion 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 imprison-
ment and fines) for violations of the EPA provisions. It also contains comprehensive rule-making pow-
ers; 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 environmen-
tal 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.
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/acci-
dent 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
10.4.1 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.
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 responsi-
bilities 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 pollut-
ing 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 abate-
ment; 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 pre-
vention 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-environment-

wing; 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 Eco-
development Board and Wildlife Crime Control Bureau.
47 Andaman Nicobar Islands Forest & Plantation Development Corporation Ltd (Port Blair).
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 stand-
ards, 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 cumber-
some, 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 accord-
ance 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 effective-
ness 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
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 expan-
sive 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.
52 AIR 1991 SC 420. 53
AIR 2000 SC 2773.
54 AIR 1988 Rajasthan 2. 55
AIR 1987 SC 1086.
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
56 Ibid., at 1106. 57

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.
india 225
jurisprudence. The Supreme Court held that ‘we have no hesitation in holding that the pre-
cautionary 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 protec-
tion 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 pro-
tecting 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.
‘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 inter-
generational 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
67 AIR 1997 SC 734. 68

AIR 1996 SC 149.
69 (2002) 10 SCC 606. 70
(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 stat-
ute; 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
73 See Preamble to the NGT Act 2010. 74
Ibid.
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 ‘green-
ing’ 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.
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 under-
standing 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
82 2016 SCC Online NGT 927. 83

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
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-ganga-
cleaned-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-nigam-
over-ganga-pollution-sewage-treatment.
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 legisla-
tive growth have come slowly, as has been the case with the gradual evolution of the insti-
tutional 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 succes-
sive 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.

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.
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).
chapter 11
I n don esi a
Simon Butt and
Prayekti Murharjanti
11.1 Overview 232

11.2.1 The Constitution 234
11.2.2 Devolution of Powers 235
11.3 The Structure and Substance of Environmental Law 236
1 1.3.1 Pollution Control and Hazardous Waste 237
11.3.2 Air Pollution and Climate Change 240
11.3.3 Marine and Fisheries 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
11.5 Conclusion 251
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
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, decen-
tralization reforms introduced from 1999 have dramatically increased the number of gov-
ernment 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, includ-
ing Singapore and Malaysia.2 Unfortunately, Indonesia’s environmental problems do not
begin and end with deforestation. Air and water pollution, waste management and over-
exploitation 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 pre-
vent, 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 provi-
sions 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.
234 simon butt and prayekti murharjanti
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 recog-
nition for environmental protection. This protection can be found in the form of substan-
tive 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 pros-
perous 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 pro-
tection 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.
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 tech-
nology;
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.

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 environmen-
tal 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

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.
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, how-
ever, 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 conven-
tions 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.
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 conse-
quences 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 concern-
ing waste and hazardous waste management that the Ministry of Environment had authority to issue.
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, moni-
toring 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 coloniali-
sation (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 regula-
tion 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.
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 exceed-
ing 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-a-
new-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,
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 compre-
hensive legal framework to adequately support the government’s rhetoric. Moreover, these
obligations have remained largely inoperative because the necessary government regula-
tions 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 govern-
ment 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.
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 enforce-
ment 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 commu-
nity 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.
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 suffi-
cient 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 mat-
ters 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 stand-
ards, 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.
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, unre-
ported, 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 fish-
ing 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.
11.4.1 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/the-
case-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.
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, sim-
ply 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 govern-
ment 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 pro-
ceedings 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 success-
ful 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 environment-
related 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-alasan-
jokowi-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).
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 complemen-
tary 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 result-
ing 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 docu-
mented, as is its deleterious effects on outcomes in civil and criminal cases.76 It is not sur-
prising, 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 sen-
tences into nine categories: <1 year; 1–2 years; 3–5 years, 6–10 years, >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).
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 instru-
ments 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 mov-
ing 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 environ-
mental 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 environ-
mental 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 environ-
mental 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 respon-
sibility, 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.
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 permit-
ted 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 land-
slide 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 con-
trol 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, pro-
vide 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 con-
cerning 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 incorp-
orated 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.
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 operat-
ing 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/bibitch-
andra-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.
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 non-
participatory 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 environ-
ment 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 com-
peting considerations.
11.4.2.5 Enforcement of Constitutional Court Decisions

The Constitution, the Constitutional Court Law, and Constitutional Court Regulations pro-
vide 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.
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 envi-
ronment-related cases, where the government has either simply ignored a Constitutional
Court decision entirely or circumvented the Court’s decision by issuing lower-level regula-
tions 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 after-
math 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 regula-
tions 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 entitle-
ment 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 enforce-
ment 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.
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.

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.
chapter 12
Ja pa n
Julius Weitzdörfer
and Lucy Lu Reimers
12.1 Overview 254

12.2 Devolution of Powers 256
12.2.1 Constitutional Law 256
12.2.2 The Environmental Basic Law 257
12.2.3 Environmental Basic Plans 258
12.2.4 Prefectural and Municipal Planning 258
12.3.1 Nature Conservation 260
12.3.2 Air Quality 262
12.3.3 Noise Protection 263
12.3.4 Waste Management 264
12.3.5 Water Quality 266
12.3.6 Hazardous Substances 266
12.3.7 Impact Assessment 268
12.3.8 Climate Change 269
12.4.1 Civil Liability in Tort 271
12.4.2 Civil Injunctive Remedies 272
12.4.3 Administrative Trials and Pre-trial Review 273
12.4.4 State Liability 273
12.4.5 Environmental ADR 274
12.5 Selected Problem: Nuclear Energy Law as
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 pollu-
tion 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 environ-
mental 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 informa-
tion 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 mer-
cury 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,
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 entre-
prises’ 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 sustain-
able 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.
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 manage-
ment 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 rap-
idly, 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 behav-
ioural change towards more environmental sustainability.19
12.2 Devolution of Powers
While Japanese environmental law-making remains predominantly centralized, and regu-

lation 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); compara-
tively 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.
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 environ-
mental 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.
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 mechan-
isms. 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 compre-
hensive 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 progres-
sively 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’ liti-
gation 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.
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 prefec-
tural 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 com-
munities, and on restarting idled nuclear power stations after the 2011 triple disaster.35

Japanese environmental legislation comprises laws, usually specified by a cabinet order and
an enforcement order, which both set out general environmental policies and address spe-
cific 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 pro-
tagonismo 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. gen-
erally 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.
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 desig-
nated 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 utiliza-
tion, 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 case-
law, 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).
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 (excep-
tions 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 cap-
ture 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 avail-
able 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 afore-
mentioned 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.
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 atmos-
pheric 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 indus-
trial 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 permis-
sible 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 com-
ply 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.
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 pre-
scribes the permissible limits for direct exhaust emissions, while the Minister of Land,
Infrastructure, Transport and Tourism prescribes permissible exhaust levels for car manu-
facturers (Article 19).
Additional limits on carbon monoxide, hydrocarbons, nitrogen oxides, lead, and par-
ticulate 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 busi-
nesses, 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 construc-
tion 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 sanc-
tions (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 han-
rei 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.
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 minis-
terial 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 regu-
lations 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 spe-
cially 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 innova-
tive 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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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 frame-
work 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 kan-
suru 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).
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.
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.
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 navi-
gational 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 con-
centration-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.
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.
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 consist-
ency 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 estab-
lished. 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 produc-
tion 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.
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.
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 con-
struction 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 lat-
ter 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 (hôhô-
sho) 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.
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 prefec-
tural 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.
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 regu-
lation 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, seismicity-
related 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 govern-
ments, 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 revi-
sions 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 imple-
mented 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)
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 lib-
eralization 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 tech-
nologies.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
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-and-

climate-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 toku-
betsu 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 solar-
plants, 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.
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 huán-
jìng 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,
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 defend-
ant’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 vio-
lation 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 prob-
able (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) over-
turned 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 sub-
sequent 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 unlawful-
ness (ihô-sei) has now widely come to be examined as a element of fault, rather than as a separate ele-
ment.; 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.
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 health-
related 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 admin-
istrative 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 construc-
tion 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.
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 facil-
ities 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 situ-
ations 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 asbes-
tos 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 proced-
ures 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.
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.
138 Law No. 186/1955 (Genshi-ryoku kihon-hô), translation available at: http://www.
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.
In response, Japan abolished Article 13 EBL, removed the exclusion of radioactive sub-
stances 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 practic-
ally, 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 fur-
ther 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 solu-
tion to environmental problems, it cannot any longer refuse to expose itself to the scrutiny
of environmental law.
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.

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 envi-
ronnemental (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:
chapter 13
M ex ico
Marisol Anglés Hernández
and Montserrat Rovalo Otero
13.1 Overview 278

13.2.1 Sustainable Development 279
13.2.2 Human Rights and the ‘Constitutionality Block’ 279
13.2.3 Human Right to a Healthy Environment 280
13.2.4 Human Right to Water and Sanitation 281
13.2.5 Collective Rights and Access to Natural Resources 281
13.3.1 Air Pollution and Climate Change 283
13.3.1.1 Air Pollution 283
13.3.1.2 Climate Change 283
13.3.2 Water 284
13.3.3 Biological Diversity 285
13.3.3.1 Protected Areas 285
13.3.3.2 Species 286
13.3.3.3 Genetic Resources 287
13.3.4 Waste 287
13.4.1 Access to Environmental Information 288
13.4.2 Access to Environmental Participation 289
13.4.3 Access to Environmental Justice 291
13.4.3.1 Environmental Liability 291
13.4.3.2 Class Actions 292
13.4.3.3 Collective Amparo 292
13.4.3.4 Environmental Criminal Justice 293
13.5 Conclusion 294
278 marisol anglés hernandéz and montserrat rovalo otero
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 fed-
eral 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
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.
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 pol-
lution 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 con-
siderations, 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 govern-
ment 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 sustain-
able 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.
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, prin-
ciples, 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 constitu-
tional 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 charac-
ter 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.
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 funda-
mental 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 par-
ticipation 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 posses-
sion—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.

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 add-
ition, 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; ecosys-
tems 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 inter-
pret 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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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 environ-
mental 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 con-
trolled 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 jurisdic-
tion 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.
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 low-
carbon 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, moni-
toring, 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 tech-
nical, 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-mer-
cado-de-carbono.
19 J. Sánchez, El mito de la gestión descentralizada del agua en México (Mexico: IIJ, 2012), 27.
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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 water-
courses, 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.
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 eco-
logical 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 wild-
life. 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 conser-
vation 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 con-
servation 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 pro-
tection 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.
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.
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, import-
ers, 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 provi-
sions 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
13.4.1 Access to Environmental Information

At the national level, the right of access to information is recognized in Article 6 of the fed-
eral 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 gov-
ernment; 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 move-
ments 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.
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 environ-
mental 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 partici-
pation of civil society, the business sector, the academy, and indigenous peoples.
In order to assure environmental public participation, the LGEEPA incorporated norma-
tive instruments that formally involve both private and public sectors through participative
mechanisms. Public participation is envisaged in the drafting of programmes aimed at pre-
serving 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, compre-
hensive 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 institu-
tions, 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.
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 fundamen-
tal 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 her-
meneutical 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 protec-
tion 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.
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 decen-
tralized 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 mech-
anisms 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 repar-
ation 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.
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 applica-
tion 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.
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 inhabit-
ants 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 consist-
ently 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 breach-
ing 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
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 over-
regulation 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 author-
ities 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.

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.
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 legis-
lación 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).
chapter 14
Si nga por e
Lye Lin-Heng

14.2 Constitutional and Environmental Infrastructure 298
14.2.1 Government 298
14.2.2 Legal System and Sources of Law 298
14.3 Structure and Substance 300
14.3.1 Pollution Control Laws 300
14.3.1.1 Air Pollution 300
14.3.1.2 Pollution from Stationary Sources/Industries 300
14.3.1.3 Pollution from Vehicles 301
14.3.1.3.1 Discouraging Car Ownership 301
14.3.1.3.2 Encouraging Green Vehicles 302
14.3.1.4 Air Pollution—Emissions from Other Sources 302
14.3.2 Water Pollution Laws and Water Management 304
14.3.2.1 Clean-up of Polluted Rivers 304
14.3.2.2 Water Management and Reuse 304
14.3.2.3 Water Pollution Laws 305
14.3.3 Waste Management Laws 306
14.3.4 Contaminated Sites 307
14.3.5 Noise 308
14.3.6 Nature Conservation Laws 308
14.3.7 Climate Change and Future Challenges 309
14.4 Administrative and Judicial Framework 310
14.4.1 Government Agencies 310
14.4.2 Land Use Planning 311
14.4.2.1 In General 311
14.4.2.2 Judicious Siting of Industries 312
14.5 Conclusion 314
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 con-
tractors and incinerated; the ash is sent to an offshore landfill site. The handling and trans-
portation 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-singapore-
index-manual-en.pdf; see also https://www.nparks.gov.sg/biodiversity/urban-biodiversity/the-singapore-
index-on-cities-biodiversity.
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, invest-
ment 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 gov-
ernment 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.
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 pol-
lution, 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.
300 lye lin-heng
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 chim-
neys (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 Director-
General 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 pollu-
tion 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.
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 deduc-
tions 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 emis-
sion 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 busi-
ness 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.
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 regis-
tered from 1 July 2010.20
As from 1 July 2013, the GVR for passenger cars will be replaced with a Carbon Emissions-
Based 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 pol-
lutants 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, petrol-
electric 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-know-
about-the-new-carbon-tax-tweaked.
24 See https://www.lta.gov.sg/content/ltaweb/en/roads-and-motoring/owning-a-vehicle/costs-of-
owning-a-vehicle/tax-structure-for-cars.html.
25 S 161/1999, 2008 Rev. Ed.
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 atmos-
pheric pollution, transportation of hazardous waste, and shipborne pollution. It was not
effective in preventing a second onslaught of widespread forest fires leading to serious trans-
boundary 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 hold-
ing 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-on-
transboundary-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-jurisdiction-
and-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
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.
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 catch-
ment. 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 domes-
tic 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 stand-
ards 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 dis-
charged, 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.
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 com-
pounding of an offence (also known as a ‘composition’) under the laws of Singapore means that a charge
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/compounding-
or-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-industrial-
waste/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-hazardous-
waste.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.
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 twelve-
hour 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.
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 label-
ling 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-climate-
change-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.
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 forma-
tion 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 indica-
tion 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/.
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 plan-
ning. 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 develop-
ment. 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).
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 guide-
lines. 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 depend-
ing 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 com-
pleted 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.
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 neces-
sary 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 ‘haz-
ardous 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’.
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 urban-
ization. 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.

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.
chapter 15
Sou th A fr ica
Jan Glazewski

15.1.2 International Law and South African Domestic Law 316
15.1.3 The Bill of Rights, the Environmental Right, and
Sustainable Development 317
15.1.4 Other Relevant Rights in the Bill of Rights 319
15.1.5 Distribution of Competences Among National,
Provincial, and Local Government 321
15.2.1 The National Environmental Management Act (NEMA) 322
15.2.2 NEMA Principles and Sectorial Laws 323
15.3.1 Co-operative Government in Practice 325
15.3.2 Relevant Governmental Departments—From Integration
to Sectorialization 328
15.4 Selected Problem: The ‘One Environmental System (OES)’ 330
15.5 Conclusion 332
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 parlia-
mentary sovereignty to a constitutional democracy underpinned by a progressive Bill of
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 deci-
sions. Moreover it resulted in the enactment of the framework National Environmental
Management Act 107 of 1998 (NEMA), which has provided the springboard for the devel-
opment 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 includ-
ing 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 compo-
nent 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.
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, provid-
ing 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).
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 dur-
ing 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.
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 man-
agement context where a multiplicity of national and provincial government agencies are inev-
itably 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).
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 par-
ticularly 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 deci-
sion 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.
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 func-
tioning 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 differ-
ent 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.
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.

15.2.1 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 ‘devel-
opment 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).
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 com-
mon heritage.46
This particular principle has not been subject to judicial interpretation but has infused sub-
sequent 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, con-
served, 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.
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 bio-
logical 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]esponsi-
bility for the environmental health and safety consequences of a policy, programme, pro-
ject, 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 maxi-
mized to the extent reasonably possible under the circumstances;52
(c) legislation intended to protect the environment and human health and safety is com-
plied 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).
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 manage-
ment 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 sustain-
able 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 pro-
vincial 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.
15.3.1 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).
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 conserva-
tion’ 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 com-
petences, 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 com-
ponents 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 allo-
cated 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.
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).
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 provin-
cial 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 con-
fer 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.
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 town-
planning instruments (such as zoning schemes), protected areas and nuisance by-laws.
This issue of which government department does what as regards environmental man-
agement 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.
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 man-
dates 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 min-
ing, 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 frame-
work 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 authoriza-
tions 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.
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 with-
out 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 regula-
tions 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 rem-
edied, 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].
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 procure-
ment 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 with-
out 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].
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 par-
ticular. 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.

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].

chapter 16
Sou th Kor e a
Hong Sik Cho and Gina J. Choi
16.1 Overview 334

16.2.1 Overview of Devolution of Power 335
16.2.2 Constitutional Right and Its Implementation 336
16.3.1 Overall Structure and Principles of Environmental Law 338
16.3.2 Medium-Specific Regulations 340
16.3.2.1 Air Preservation and Climate Change Regime 340
16.3.2.2 Water and Ocean Preservation 342
16.3.2.3 Soil Environment Preservation 343
16.3.2.4 Chemicals Management 344
16.3.2.5 Recycling and Waste Management 345
16.3.2.6 Wildlife and National Resources Preservation 346
16.4.1 Administrative and Criminal Enforcement 347
16.4.2 Private Enforcement of Environmental Law 348
16.5 Conclusion 349
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.
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 enforce-
ment 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.
16.2.1 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 con-
trol 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 par-
liamentary 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 uni-
cameral 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.
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 policy-
making as the relevant regulations have evolved into instruments based on economic incen-
tives, 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 legisla-
tion, 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 distribu-
tive 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
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 com-
promised 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 recog-
nize 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 environ-
mental 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.
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 require-
ments 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 com-
mentators maintain that this problem should be addressed by the courts’ more considerate
interpretation of the Constitution and the BEPA.

16.3.1 Overall Structure and Principles

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 any-
one 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.
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 mitiga-
tion 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 funda-
mental 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.
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 concen-
tration 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 mar-
ket-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 system-
ized 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, avail-
able 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
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 sec-
ond 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 emis-
sions 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 indus-
trial 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 impli-
cations 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 genera-
tors 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
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 incen-
tivizes 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 regula-
tions. 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 exces-
sive 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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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 govern-
ment 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 stand-
ards 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 govern-
ment 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 constitu-
tionality 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.
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, enact-
ing 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 chem-
icals 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 pro-
cessed 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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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 end-
of-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 oper-
ated under the individual medium-specific statutes, for example, the Water Quality and
Ecosystem Conservation Act; and municipal waste, which encompass waste other than com-
mercial 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 Volume-
based Waste Fee System in South Korea’ (2018) 74 Waste Management 43–51.
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 pol-
lution’ 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 pol-
lution 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 compensa-
tion 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.
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.
16.4.1 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 adminis-
trative 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 vio-
lation 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 haz-
ards 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.
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.
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 puni-
tive 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 enact-
ment 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 govern-
ment 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.
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.

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).
chapter 17
U n ited K i ngdom
Stuart Bell
17.1 Overview 352

17.2.1 The Forces of History 352
17.2.2 External Forces—The Impact of the European Union 354
17.2.3 Internal Forces—The (Weak) Constitutional Basis for
UK Environmental Law 355
17.2.4 Internal Forces—Constitutional Complexity in a
Devolved UK 356
17.3.1 Industrial Pollution Control 359
17.3.2 Air Quality and Climate Change 359
17.3.3 Water Quality 361
17.3.4 Waste Management 362
17.3.5 Nature Conservation and Landscape Protection 363
17.4.1 Central Government 365
17.4.2 Local Government 366
17.4.3 Specialist Agencies 366
17.4.4 The Role of Courts and Tribunals 367
17.4.4.1 Access to Justice 368
17.4.4.2 The Requirement of a ‘Sufficient Interest’ 369
17.4.4.3 Time Limits 369
17.4.4.4 Costs and Funding 370
17.4.4.5 A Specialist Environmental Court 371
17.4.5 Enforcement 371
17.5 Conclusion: Fragmentation and Integration? UK
Environmental Law in Flux 372
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 environ-
mental 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.
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 fragmenta-
tion 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.
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 modern-
day 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 environ-
mental 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 con-
sistent, 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 out-
come 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 dif-
ferent 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 rela-
tively 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.
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 imple-
ment 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 trans-
posed 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 repli-
cate 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 sec-
ond 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 effect-
ively 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 govern-
ance, 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 decen-
tralized 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 dif-
ferent 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).
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 regula-
tion. 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 pos-
sible exceptions.18 First, the integration of environmental principles—in particular duties
connected to the principle of sustainable development—can be seen in diffuse forms, creat-
ing 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).
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 suffi-
ciently 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 obliga-
tions 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 require-
ments 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.
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 sub-
sequent suspension of the Northern Irish National Assembly meant that little or no pro-
gress 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 legis-
lative 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 man-
agement 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).
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 fragmen-
tation 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 obli-
gations 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

‘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, inte-
grated 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.
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 qualifica-
tions. 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 sub-
stance 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 com-
pliance 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 regu-
lation, 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.
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 prob-
lematic. 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.
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 ‘danger-
ous 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 per-
mits and to monitor and vary such conditions as appropriate.68
The Permitting Regulations prohibit ‘causing or knowingly permitting any water dis-
charge 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 pollu-
tion 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-change-
agreements.
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).
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
81 Article 3(1) Directive 2008/98/EC. 82 R v W [2013] Environmental Law Reports 15.
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 admin-
istrative 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.
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 designa-
tions 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 spe-
cies’ 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
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.
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, responsi-
bility 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 environmen-
tal 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.
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 func-
tions.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 con-
taminated 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/environment-
food-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.
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 conse-
quence 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 envir-
onment. 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 miscellan-
eous 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 signifi-
cance and are subject to review in a specialist Chamber of the civil High Court.118 In com-
parison 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.
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 sub-
stantive 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 substan-
tive 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 deci-
sions 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’
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).
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 con-
strued.128 This meant that representative challenges to decisions affecting the unowned
environment by NGOs or individuals would not necessarily meet the requirement of ‘suf-
ficient 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.
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 pre-
sumptive 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. pri-
vate 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.
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’
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 posi-
tion 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.
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.
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 fragmen-
tation 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.

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
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
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).
chapter 18
U n ited States
of A m er ica
James Salzman
18.1 Overview 375

18.2.2 Constitutional Bases of Environmental Law 376
18.2.3 Delegation to Regulatory Agencies 376
18.2.4 Regulation and Private Property 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 387
18.4.1.1 Agency Rule-making 388
18.4.1.2 Challenges to Agency Rule-making and Standards
of review 388
united states of america 375
18.4.2 Enforcement 389

18.4.2.1 Administrative Enforcement 389
18.4.2.2 Civil Remedies: Penalties and Injunctions 390
18.4.2.3 Criminal Sanctions 391
18.4.3 Citizen Suits 391
18.4.3.1 Types of Citizen Suits 392
18.4.3.2 Alternative to Government Action 392
18.4.3.3 Litigation Costs and Standing 393
18.5 Conclusion 393
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 environ-
mental law in the United States. It will then examine the implementation framework which
affects how these rules operate in practice.
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.
376 james salzman
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 sub-
stances 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’, justi-
fies 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).

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 pollu-
tion 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 typ-
ically 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 prin-
cipal 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 com-
pensation. 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).

378 james salzman

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 provi-
sions 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 adminis-
tered 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).
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, site-
specific 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 dif-
ferences 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).

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 demon-
strate ‘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 trad-
ing. 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 smoke-
stacks 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 pos-
sible 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
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 pollut-
ant’ 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 con-
tained 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 indus-
trial 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).
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 pollu-
tion firmly and effectively? Nonpoint sources often are more difficult to regulate than point
sources. Nonpoint sources far outnumber point sources. They are more varied, complicat-
ing 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).

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 rou-
tinely 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 iden-
tifying 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 characteris-
tics, 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 haz-
ardous 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 facili-
ties’ (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 ‘cradle-
to-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).

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 liabil-
ity, 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 sub-
stances 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).

to the maximum extent practicable. All cleanups must follow the requirements set out in
the National Contingency Plan (NCP), including provisions for extensive remedial investi-
gations 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 com-
pensation 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 govern-
ment 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 contro-
versial 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).

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 technol-
ogy-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 pro-
posed 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 sug-
gests 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 includ-
ing 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).
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 pos-
sible 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, uncer-
tainty, 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 deci-
sion-maker to fully consider and balance the relevant factors.
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 inspec-
tions, 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 con-
trols 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
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 require-
ments 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).

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 com-
pletely 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 com-
ment 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, deter-
mines 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).

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 enforce-
ment. 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 adop-
tion 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 pro-
vide 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
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 jus-
tify 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 viola-
tion 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 encour-
age 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 chal-
lenging 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 administra-
tive actions that are inconsistent with the law or facts. The ability to pursue judicial review
provides environmental organizations with considerable power in the administrative pro-
cess. In deciding how to interpret and apply the law, EPA and other federal agencies recog-
nize that environmental groups will sue if not satisfied with the agency action.
392 james salzman
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 viola-
tion 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 enforce-
ment 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.
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 injunc-
tion 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).

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.

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).
Pa rt I I
PROBL E M S
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
19.3.1 The EU Model 401
19.3.1.1 Regulatory Competence 401
19.3.1.2 Areas of Activity 402
19.3.2 The US Model 407
19.3.3 The Chinese Model 410
19.4 Comparative Assessment of Some Selected Air
Pollution Issues 413
19.4.1 The Regulatory System of Air Pollution Control 413
19.4.2 Legislative Approach to Air Pollution Control 414
19.4.3 Instrument Choice 414
19.4.4 The Role of Courts 415
19.5 Conclusion 416
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 interchange-
ably 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 pollu-
tion 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.
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 inter-
national 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 signifi-
cantly 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 jurisdic-
tion of another State at such a distance that it is not generally possible to distinguish the con-
tribution 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.
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 multi-
plicity 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 estab-
lishment 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 pol-
lution control and management of air quality in many countries. Moreover, it has contrib-
uted 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 trans-
boundary 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.
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 trans-
boundary 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 adminis-
trative 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’.
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 dis-
seminating 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 under-
stood, 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 instal-
lations) 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 installa-
tions 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’).
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 target-
ing 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 inter-
twined 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 emis-
sions 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 establish-
ment 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 volun-
tary 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.
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 emis-
sions 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 founda-
tional 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 frame-
work 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 relat-
ing 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.
52 Directive 2008/50/EC on ambient air quality and cleaner air for Europe, OJ 2008 No. 152/1.
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.
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 provi-
sions 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.
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 legisla-
tion 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.
19.3.2 The US Model

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 con-
trol 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.

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, particu-
larly 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).
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 diox-
ide. 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 pri-
mary 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 veri-
fied (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-attain-
ment areas and maintain a good air quality in attainment areas. The same standards devel-
oped 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 manu-
facturing facilities, but sometimes also to smaller equipment. Standards are set at the fed-
eral 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, vege-
tation, 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.
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 moni-
tored 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 adminis-
tration 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.
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

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 environment-
related 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.
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.

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 provin-
cial 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 pun-
ish 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’.
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 con-
tained 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 per-
mits. 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 prod-
ucts 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-Law-
omits-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-china-
prevention-and-control-of-atmospheric-pollution/file See also Feng and Liao, ‘Legislation, Plans, and
Policies for Prevention and Control of Air Pollution in China’.
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 regu-
latory 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 protec-
tion 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 enforce-
ment, 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’.
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 ‘double-
track’ 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 pol-
lution, including both stationary and mobile sources. Only later did the EU legislature
start dealing with ambient air quality management and control, by passing separate legis-
lation 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 man-
agement 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, periodic-
ally 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/clean-
air-act-overview/clean-air-act-nutshell-how-it-works.
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 trad-
ing 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 con-
sistent 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.
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 provi-
sion 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, tubercu-
losis 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-The-
future-of-public-interest-litigation-in-China.
113 See https://www.chinadialogue.net/article/show/single/en/7790-China-court-to-hear-3-m-yuan-
air-pollution-lawsuit; https://www.chinadialogue.net/article/show/single/en/9356-Opinion-The-future-
of-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.
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 complemen-
tary 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 par-
tial 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.
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 sugges-
tions on the Chinese model and Nick Bryner (UCLA School of Law) for his comments and suggestions
on the US model.

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
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.
chapter 20
En v ironm en ta l
R egu l ation of
Fr esh water
Dan Tarlock
20.1 Overview 419

20.1.1 From Working Rivers to Rivers that Work 419
20.1.2 The Emergence of the Normative River 420
20.2 Water Pollution Control 422
20.2.1 Pollution Control Instruments 422
20.2.2 The Structure of Regulatory Regimes 422
20.2.2.2 What is Pollution? 423
20.2.2.3 Discharge Categories 424
20.2.3 National Versus International Regulation of Waste
Stream Discharges: Minimal International Law
Constraints on National Prerogative 424
20.2.4 Reduction of Effluent Discharges 425
20.2.4.2 Water Quality Standards 425
20.2.4.3 Effluent Limitations 426
20.2.4.4 The Use of Economic Instruments 426
20.2.4.5 Judicial Actions 427
20.3 The Recognition of Environmental Flows 428
20.3.1 Recognition Options 428
20.3.2 The Growing Recognition of Environmental Flows
in National and International Law 429
20.3.2.2 Water Reserves 429
20.3.2.3 Judicial and Administrative Reallocation 431
20.3.3 Reservoir Operation or Reoperation 431
20.3.4 The Principle of Equitable and Reasonable Utilization 432
Environmental Regulation of Freshwater 419
20.4 The Protection of Wetlands 432

20.4.2 The Ramsar Convention System in Publicly Owned Land 433
20.4.3 The Protection of Wetlands Located on
Privately-Owned Land 435
20.5 Trends in the Environmental Regulation of Freshwater 436
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 move-
ment, 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.
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 con-
servation 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.
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 ecosys-
tems 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 coun-
tries. 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 fail-
ing 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 conver-
sion 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, pri-
marily 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).
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

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.
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 alter-
ation 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.
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 sub-
national 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.
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 distri-
bution 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

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 regu-
latory 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.
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 compo-
nents 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 devel-
oped 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 pol-
lution 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.
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 compre-
hensive 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 pol-
lution 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-water-
law/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
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 devel-
oped 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 recogni-
tion 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.
20.3.2 The Growing Recognition of Environmental

Flows in National and International Law
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 abstrac-
tions. 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
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 author-
ities 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 eco-
logical 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 down-
stream 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 subordin-
ation 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-consca-

dev-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/Water-
Resources-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).
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 ecosys-
tems.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).
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 environ-
mental 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 recog-
nized 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 drain-
age79 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 consti-
tuted 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.
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 sub-
stantial 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.
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 implemen-
tation of ecosystem approaches, within the context of sustainable development’. By advocating
this approach, the Ramsar Convention therefore necessitates that all parties use the ecosys-
tem 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).
‘[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 incon-
sistent 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 develop-
ment.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 fre-
quently 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).
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 pre-
venting 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 environ-
mental 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).
judicial recognition that watercourses have legal status and ultimately the enactment
of integrated water quality and quantity management as well as adjacent land management.

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).
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 440
21.3 Legal Responses to Land Degradation 444
21.3.1 Global Initiatives 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
21.3.4.2 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.
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 agri-
culture, 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 concen-
tration 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 pre-
vent 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 dir-
ected 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/wp-
content/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.
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 desertifi-
cation 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 subse-
quent 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 rain-
fed 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 habi-
tation 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
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
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 anthropo-
genic (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 vulnerabil-
ity, 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 Human-
Induced 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’.
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 com-
munities 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
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 contrib-
ute 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 neutral-
ize 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 ‘Non-
legally 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: <http://www.ohchr.org/Documents/Issues/Climate Change/
Submissions/UNCCD.pdf>; see also UN Special Rapporteur on the Right to Food at: <http://www.
ohchr.org/EN/Issues/Food/Pages/FoodIndex.aspx>.
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).
21.3 Legal Responses

to Land Degradation
21.3.1 Global Initiatives

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 man-
agement 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.
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, includ-
ing 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 sustain-
able 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 cur-
rently 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.
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 biodiver-
sity, 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 coun-
tries 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 desir-
able 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).
(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, culti-
vation, using organic manure, applying nitrogenous fertilizers, and over-grazing of live-
stock. 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 conser-
vation and enhancement, as appropriate, of sinks and reservoirs of the greenhouse gases
referred to in the Convention’. This has important implications for land degradation con-
trol. 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 pre-
industrial 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.
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/s11869-
008-0024-9
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.
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 pro-
posal 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 mas-
sively 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 pro-
cesses 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 estab-
lishing 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.
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 instru-
ment in the world specifically directed to the protection of soil. It aims ‘to reduce quantita-
tive 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 long-
term basis. The restoration of impaired soils shall be promoted.68
Till Markus suggests, with some reservations regarding regional socio-economic and polit-
ical 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-resources-
revised-version;.
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, chem-
ical 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 differ-
ences 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 out-
lined 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 ecosys-
tems 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: <http://www.fao.org/globalsoilpartnership/partners/en/>.
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.
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 Science-
Policy 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-golden-
egg-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.
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 legisla-
tion and policies that will deliver LDN at a national level in all countries suffering from land
degradation.
21.3.4 National Laws and Policies

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 frame-
work of legislation to manage a number of distinct soil and land use problems, but they gen-
erally 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
The following section briefly summarizes some of the main elements that need to be con-
sidered 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 ten-
ure 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.
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 redis-
tribution 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.
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 entre-
preneur 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 sus-
tainable 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 categoriza-
tion 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, availa-
ble 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.
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, des-
ignate 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 cul-
tural 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 sustain-
able 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.
preamble: ‘Recognizing that respect for indigenous knowledge, cultures and traditional
practices contributes to sustainable and equitable development and proper management of
the environment’.
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 rehabilita-
tion, restoration, conservation, and sustainable management of land resources. This inte-
grated 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 chal-
lenge, 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.

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’.

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).
chapter 22
Natu r e Conservation
Agustín García-Ureta
22.1 Overview 461

22.2 Protected Objects 464
22.2.1 Wildlife 464
22.2.2 Biological Diversity 464
22.2.2.1 Notion 464
22.2.2.2 Dimensions of Biodiversity’s Intrinsic Value 465
22.3 The Interplay Between Wildlife and Protected Areas 466
22.3.1 The Transition from Nature Wonders to
Wildlife Conservation 466
22.3.2 Legal Definition and Criteria for Designation 467
22.3.3 Size of Protected Areas and Wildlife Protection 469
22.3.4 Wildlife and Connectivity 472
22.4 Specific Measures for the Protection of Wild Species 473
22.4.1 Legal Status 474
22.4.2 Criteria for Classification 475
22.4.3 The Role of Lists 476
22.4.4 Mechanisms for Protection: General Prohibitions
and Limited Exemptions 478
22.4.5 Wandering and Alien Species 480
22.4.6 Trade in Species: The Role of CITES 482
22.5 Wildlife, Property Rights and Market Mechanisms 484
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 verte-
brates 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’
11 L. Simon, S. L. Lewis, and M.A. Maslin, ‘Defining the Anthropocene’ (2015) 519 Nature 171.
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 conser-
vation 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 predeces-
sor (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 regu-
late 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).
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 afore-
said 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 inter-
actions 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 man-
agement 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 ‘ecosys-
tems’, 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 conser-
vation of natural habitats and of wild fauna and flora.
24 1760 UNTS 79 (CBD).
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 eco-
logical 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).
(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 con-
cern 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, biodiver-
sity 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 gen-
etic 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 bound-
aries 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.
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 commu-
nities. 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 progres-
sively 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.
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 pro-
jections 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 bio-
logical 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 clas-
sifications. 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).
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 encom-
passes 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 spe-
cies 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.
(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 man-
agement 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 popu-
lations 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 pur-
poses (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.
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 con-
cerning 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 migra-
tion 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.
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).
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).
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’
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
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 oth-
ers; related species are grouped into genera’.
106 For instance, the Convention designed to ensure the conservation of various species of wild ani-
mals 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 pro-
gramme 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.
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).
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 con-
fined 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 conser-
vation 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).
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 clas-
sifies 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.
(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, assess-
ment 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 compen-
sation 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.
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 sea-
sons). 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).
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 ani-
mal 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 pro-
tecting 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-alien-
species.
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-inf-
11-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).
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’) ‘pre-
vent 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 eradica-
tion.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 sur-
vey 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).
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 produc-
tion 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 organiza-
tions 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.
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 trans-
ferred 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-rhino-
poaching-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.
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 wild-
life 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 con-
junction 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 pri-
vate 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
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.
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 pro-
hibitions 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 ecosys-
tems 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.
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 pro-
tective 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 pro-
vided 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.ecosystemmarket-
place. 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.
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.
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 pri-
ority 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.

Bastmeijer, K., Wilderness Protection in Europe: The Role of International, European and National Law
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
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).
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
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
23.4.2 Background 496
23.4.2.1 The EU 496
23.4.2.2 Japan 496
23.4.2.3 New Zealand 497
23.4.3 Scope, Competence Order, and Central Legislative Acts 497
23.4.3.1 The EU 497
23.4.3.2 Japan 499
23.4.4 Regulation of the Management Process 502
23.4.4.1 The EU 502
23.4.4.2 Japan 503
23.4.5 Laws and Policies Affecting the Functioning and
Effectiveness of Fishing Regulation 504
23.4.6 Critical Performance Assessment and Comparison 505
23.4.6.1 Commonalities and Differences 505
23.4.6.2 System Specificity 505
23.4.6.3 Specific Shortcomings 506
490 till markus
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 ana-
lysing, 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.
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 scar-
city 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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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 success-
ful 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 sus-
tainable 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 eco-
systemic 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 mam-
mals) 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 docu-
ment ‘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 sus-
tainable 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 Socio-
economic 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 mar-
ine 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.
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 regula-
tions 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 gov-
ernment 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).
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 fish-
eries resource allocation;18 self-governance; fisheries buybacks; implementation of the
precautionary or ecosystem approach; small-scale fisheries, etc.) or those comparing com-
prehensive 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 manage-
ment 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 manage-
ment 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.
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 pur-
poses 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, adminis-
trative 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 fish-
eries 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.
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 ter-
ritorial 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.
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).
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’ ‘home-
coming’ ships that had been excluded from overseas fishing grounds due to the establish-
ment 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.
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 organ-
ization 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 fish-
ing 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, guar-
antee food supplies, and improve fishers’ economic status.58 While at that time the American
occupation administration strongly promoted a property-rights and market-based man-
agement 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’.
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 TAC-
system 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 promot-
ing supplies for Japanese markets, developing fisheries communities (given the changing
age structure of fishermen), and promoting sustainable fisheries and environmental protec-
tion. 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 fish-
eries 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 rec-
ognized 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: FAO-
Technical Paper No. 504, 2008), 221–9.
68 M. Makino, H. Matsuda, and Y. Sakurai, ‘Expanding Fisheries Co-Management to Ecosystem-
Based 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.

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 moderniza-
tion 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 gov-
ernment, 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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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), dif-
ferent 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 commu-
nication 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 deci-
sions 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.
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 organ-
izations, 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

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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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 environ-
ment 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).
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).
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.
Management Systems in New Zealand and in the European Union’, at 463–81.
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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 adop-
tion 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 overca-
pacities 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 manage-
ment 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 deci-
sions. 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.
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 sus-
pected 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 repre-
sented 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 sustainabil-
ity, 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 non-
fisheries-laws (e.g. the māui dolphin).118
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 marine-
related 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.
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.
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 grate-
fully acknowledged. All limitations, errors, or obscurities remain entirely the author’s responsibility.

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.
chapter 24
Gen etica l ly Modified

Orga n isms
Anne Saab
24.1 Overview 510

24.2 Risk Assessment and Regulation 511
24.2.1 Risk Assessment in the EU and the US: Precautionary
Versus Permissive Approaches 512
24.2.2 Risk Regulation in the EU and the US: Process Versus
Product Regulation 515
24.2.3 From Differences to Disputes 516
24.2.4 Risk Assessment and Regulation in Other Jurisdictions 517
24.2.4.1 Brazil 517
24.2.4.2 China 518
24.2.4.3 Costa Rica 520
24.2.5 Comparative Approaches to Risk Assessment and
Regulation of Genetically Modified Foods 520
24.3 Labelling of Genetically Modified Organisms 521
24.4 Intellectual Property Rights and Genetically Modified
Organisms524
24.4.1 Legal Framework 525
24.4.2 Comparative Approaches to Patenting Genetically
Modified Organisms 527
510 anne saab
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 micro-
organisms 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 pesticide-
and 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-geneti-
cally-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.
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 rela-
tively 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 intro-
duction 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 conse-
quences of genetic engineering, and how should we deal with these uncertainties? Are genet-
ically 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.
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 signifi-
cant 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.
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 prac-
tice, 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 con-
sidered 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 delib-
erate 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.
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 pre-
cautionary 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 per-
missive 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 transatlan-
tic 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).
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 devel-
oped 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’.
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 modi-
fied 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.
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 indigna-
tion 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-adoption-
agricultural-biotechnology.
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 assess-
ment 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 tech-
niques 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.
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.
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 con-
stitutionality 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 non-
GMO 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.
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 speak-
ing, 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 regula-
tory 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 engineer-
ing 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.
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 regu-
lation. Labelling of GM products can be mandatory or voluntary, depending on the inter-
national, 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.
2003 on genetically modified food and feed, at para 17.
2003 concerning the traceability and labelling of genetically modified organisms and the traceability of
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 label-
ling 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-on-
gmos/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).
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 nego-
tiations 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 disagree-
ments or changed positions significantly. Fundamental conflicts remain over whether label-
ling 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).
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 pro-
tection 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 prop-
erty 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.
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 there-
fore 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 domes-
tic 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 liv-
ing 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 essen-
tially 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.
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 coun-
tries.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 corpor-
ations 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 com-
position 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.
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 conven-
tionally 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, inter-
pretation, 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.
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 neces-
sarily 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?
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.
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.

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 delib-
erate 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.
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 554
25.3.1 Scope and Structure of the Governing Law 554
25.3.2 Substantive Provisions 555
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
25.4.1 Supporting Low-Emissions Development 571
25.4.2 Dealing with F-gases 572
25.4.3 Controlling Aircraft and Marine Shipping Emissions 573
25.5 Evaluation 574
25.5.1 Effectiveness 574
25.5.1.1 Performance of Energy Efficiency Measures 574
25.5.1.2 The Role of Circumstance 575
25.5.1.3 Replacing Coal is Not the Same as Decarbonizing 576
25.5.2 Transferability of Techniques 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,
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 accom-
plish 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 bind-
ing 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 adap-
tation 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.
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 independ-
ent, 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 frame-
work 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.
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 provi-
sions 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).
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 emis-
sions 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.
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 commit-
tee], 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.
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 admin-
istration. 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 rele-
vance 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 lan-
guage.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.
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 agree-
ments 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 gov-
ernment 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 characteris-
tic 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.
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.
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 jurisdic-
tions 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 nego-
tiations 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 con-
sidered ‘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), avail-
able 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
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 chal-
lengers 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 over-
arching 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.
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 polit-
ically, 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, elec-
tricity, 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 exceed-
ing 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.
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 miti-
gation 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 particu-
lar 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 spe-
cific examples.
25.2.3.1 Quantitative Targets

The world is awash in quantitative climate change mitigation targets, though less so in quan-
titative 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’, avail-
able 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).
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 pre-
industrial 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).
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 prov-
inces 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 organ-
izations (NGOs) that facilitate the development and monitoring of compliance with quan-
titative 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 klimaschutz-
politischen 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).
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 for-
estry (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.
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 com-
pounds 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.
property,127 and its Business and Biodiversity Initiative supports ecosystem services by
coordinating financing from private firms for maintenance of designated areas by forest-
land inhabitants.128
While subsidies and incentives for fossil fuel extraction and use are not a feature of cli-
mate change policies per se, they are nonetheless directly relevant because their encourage-
ment 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. Energy-
efficiency labelling is discussed further in section 25.3.2.1. Information and disclosure require-
ments 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.
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 juris-
dictions. 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 inter-
ventions 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 acknow-
ledging 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 agri-
culture); 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).
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 Farming-
Livestock-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 conver-
sion 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 par-
ticular 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.
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, sus-
tainable 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
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 grow-
ing, 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 regula-
tory 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 sub-
stitutes, and requires manufacturers to draft plans for phase-out based on regulatory guide-
lines.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).
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 pri-
orities 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 improve-
ments 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.
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 feed-
in-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 regula-
tion 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 Feed-
In-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).
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 gov-
ernments, 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 categoriza-
tion. 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
2015), 4, 10, 14, 24–5.
169 E. L. La Rover et al., Pathways to Deep Decarbonization in 2050 in Brazil (Paris: Sustainable
2015), §§ 3.2 (biofuels), 3.3 (hydropower).
170 U. W. R. Siagian et al., Pathways to Deep Decarbonization in 2050 in Indonesia (Paris: Sustainable
2015), 21–2 (describing scenarios involving heavy investments in renewable electricity generation, renew-
ables and CCS, or de-industrialization).
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 articu-
lated 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 gov-
ernors 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 man-
agement 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 (sup-
plemental 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.
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 pur-
chasers 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 teth-
ers 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 best-
in-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).
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, manufac-
turers 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.
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 heavy-
duty 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 con-
sumption 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 con-
sumption 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).
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 hydro-
power 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 com-
pelled 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 renew-
ables 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.
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 encour-
aging 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. 23/2/2005-
R&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).
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 com-
petitive 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 promo-
tion 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
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 pri-
mary energy cannot control when the sun shines or the wind blows, and so can only gener-
ate 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 ther-
mal 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 devel-
oping countries where electrification continues, renewables can sometimes offer a cost-
effective 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-to-
minute 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.
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 accom-
modate 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 coun-
tries 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 emis-
sions-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 pro-
ject 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.
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 necessi-
tating 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 gener-
ating 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 endow-
ments 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 elec-
tricity 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.
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) (restrict-
ing 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 develop-
ment 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.
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 ‘com-
bustion 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 tech-
nologies.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 stor-
age 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 tech-
nologies, 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;
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 sus-
pended 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 pur-
suit 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 coun-
tries: 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
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 con-
ventional 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 high-
level 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.
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 devel-
oped 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 emis-
sions. 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. §§ 58-33-
210 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).
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 aban-
doned shrimp ponds, and thereby alleviated pressures that might otherwise have led farm-
ers 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 high-
GWP 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], promul-
guée 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.
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, hydrochlorofluoro-
carbons (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 force-
fully by India) relates to developing countries’ argument that they should either have tem-
porary 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
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 environ-
ment 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.
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 reduc-
tion 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 develop-
ment 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 relation-
ships 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).
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 tech-
nologies 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.
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 cap-
and-trade scheme and of California climate policy generally, resulted in a jostling the existing
EV scheme.311
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 treat-
ment 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.

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.
chapter 26
R egu l ation
of Ch emica l s
Lucas Bergkamp and Adam Abelkop
26.1 Overview 579

26.2 Basic Concepts 580
26.2.1 What is Chemicals Regulation? 580
26.2.2 Hazard and Risk 581
26.2.3 Data 582
26.3 General Components of Chemicals Regulation 584
26.3.2 Identification 584
26.3.3 Prioritization 586
26.3.4 Risk Assessment 587
26.3.5 Risk Management 589
26.3.5.2 Information Tools 589
26.3.5.3 Prescriptive Tools 591
26.3.5.4 Liability Entitlements 593
26.4 Comparative Chemicals Regulation 594
26.4.1 European Union: REACH Regulation 594
26.4.1.2 Registration 594
26.4.1.3 Evaluation 596
26.4.1.4 Authorization 596
26.4.1.5 Restriction 598
26.4.2 United States: Amended TSCA 598
26.4.2.2 Inventory Reset: TSCA § 8 600
26.4.2.3 Prioritization, Evaluation, and Management
of Active Chemicals: TSCA § 6 600
regulation of chemicals 579
26.4.2.4 New Chemicals and Significant New Uses: TSCA § 5 603

26.4.2.5 Information Gathering: TSCA § 4 604
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 corpor-
ations 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 gen-
erated 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 dichlorodiphenyltrichloro-
ethane (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-on-
chemicals/pre-registered-substances; EHCA, EC Inventory, https://echa.europa.eu/information-on-
chemicals/ec-inventory; ECHA, Candidate List, https://echa.europa.eu/candidate-list-table; ECHA,
Authorization List, https://echa.europa.eu/addressing-chemicals-of-concern/authorisation/recommen-
dation-for-inclusion-in-the-authorisation-list/authorisation-list
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, informa-
tional 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 dis-
cussions 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.
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 through-
out 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, ‘Low-
Level 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.
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 decision-
making 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 ‘hazard-
based’ 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 bio-
accumulation 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 pro-
grams. 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 col-
lected 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.
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 informa-
tion 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 SIDS-
Related 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’.
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.
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 ‘micro-
plastics’, 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 busi-
ness 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.
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.
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 poten-
tial 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 man-
agement 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).
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 substitu-
tions’ 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 technolo-
gies that may be deployed to replace the chemical to be regulated. For example, under
California’s Safe Consumer Products programme, authorities identify chemicals of con-
cern and priority products for assessment and potential management. Identified chemi-
cal-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 manage-
ment 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).
26.3.5 Risk Management

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 regula-
tions 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 regula-
tory 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 crit-
ical 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.
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 prac-
tice, supply-chain information on chemical identification, hazards, and suitability for particu-
lar 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.
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 chem-
icals 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 chem-
ical 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), estab-
lished by the Emergency Planning and Community Right to Know Act,37 and certain chem-
ical 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 pro-
vide 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 prescrip-
tive, 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/health-
canada/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.
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, dis-
posal, 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 volun-
tary 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 obli-
gates 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 profes-
sional-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 sub-
ject 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.
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 prop-
erty 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 regula-
tory 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 com-
pensation 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 regula-
tory 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.
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

The Registration, Evaluation, Authorization, and Restriction of Chemicals (REACH) regu-
lation 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 gov-
ernments 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 assess-
ment 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.
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 sus-
pect 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 elec-
tronic 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 poten-
tial 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 infor-
mation 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 radio-
active 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.
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 com-
pleteness. 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 com-
pliance 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 registra-
tion 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 evalu-
ation 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-registration-
dossiers.
63 Herbatschek et al., ‘The REACH Programmes and Procedures’.
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.
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 environ-
ment, . . . 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

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.
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 unreason-
able 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 burden-
some 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 sub-
stances 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.
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 retro-
spective: 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 manage-
ment 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 manu-
factured, 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 assess-
ment.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’, ‘condi-
tions 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.
‘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 sub-
stance 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 evalu-
ations 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/assessing-
and-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-review-
under-new-tsca-legislation.
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 indi-
vidual 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 prescrip-
tive 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 exemp-
tion 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 infra-
structure; 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 exemp-
tion. 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-2017-07-
20/html/2017-14337.htm.
97 TSCA § 6(c)(1). 98 A restriction may apply to an article. TSCA § 6(c)(2)(E).
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 man-
agement 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 environ-
ment. 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 manufac-
turing 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 insuffi-
cient 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 unrea-
sonable 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 descrip-
tion 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’.
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 deter-
mine 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
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.
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 screen-
ing programmes to address chemical risk to consumers.110 This chapter has distinguished
chemicals regulation from other areas of environmental law, explained the general con-
cepts 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 asym-
metries, 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 pre-
sented 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 regis-
tration, 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.
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.
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.

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).
chapter 27
Waste R egu l ation

Natalie Jones and Geert van Calster
27.1 Overview 607

27.2 Macrostructures 609
27.2.2 Centralized Versus Delegated 609
27.2.3 Unified Versus Fragmented 610
27.2.4 Integrated Versus Specific 611
27.3 Principles of Waste Management Law 612
27.3.2 Definitional Aspects 613
27.3.2.1 Definition of Waste 613
27.3.2.2 Waste Hierarchy 614
27.3.2.3 Waste Streams and Waste Classifications 616
27.3.3 Management Principles 617
27.3.3.1 Reduction of Waste Generation 617
27.3.3.2 Treatment Near the Source 618
27.3.3.3 Standards of Waste Treatment 618
27.3.3.4 Prohibitions and Restrictions of Movement 619
27.3.3.5 Extended Producer Responsibility 620
27.3.4 The Move to Circular Economy Approaches 623
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
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 juris-
dictions 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 pollu-
tants) 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.
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 use-
ful 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.
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 house-
hold 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.
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 jurisdic-
tions. 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 sig-
nificance’ 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 com-
posting 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.
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 neces-
sarily 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.
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 regu-
lations 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 aban-
donment. 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 other-
wise 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 sub-
stance 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.
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’ provi-
sions 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, com-
mercial, 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 ques-
tioned 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.
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.
(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 pro-
mote 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-and-
homeland-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.
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).
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 pro-
posal 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.
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, particu-
larly 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).
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 responsi-
bility 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 haz-
ardous 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.
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 responsi-
bility. 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 prod-
ucts. 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.
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 situ-
ation 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 exter-
nalities 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 responsi-
bility for reducing and dealing with waste’.
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.
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 instru-
ments to discourage landfilling; simplified and improved definitions and harmonized cal-
culation 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 govern-
ments 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
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.
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 juris-
dictions. However, there is a lot further to go in order to realize the ideals of the circular
economy.

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
Van Calster, G., EU Waste Law (Oxford: Oxford University Press, 2nd edn. 2015).
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
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.
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 propor-
tionality, 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 uncomfort-
able 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 environmen-
tal 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.
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 guid-
ance 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 com-
parative 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 differ-
ent 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
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 com-
plexities 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 par-
ticular, 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
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 sophis-
ticated 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 con-
cludes 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).
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 fun-
damental 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.
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 remedi-
ated 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 prac-
tice 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 pro-
visions 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 deter-
mined. 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-Twinning-
Program/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.
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 pre-
sent 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.
Table 1, at 24.
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, particu-
larly 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 ques-
tions of liability however, it is important to keep in mind the two factors considered above
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 pol-
luter.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 prop-
erty 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 difficul-
ties 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 poten-
tially liable parties, and secondary liability. There are few systems in which an owner/occu-
pier, 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 responsibil-
ity 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,
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/0-503-
2029?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1 (updated 1 July 2016).
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 com-
plex 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 pol-
lution 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 repre-
sents a fundamentally different philosophical approach to the regulation of this historical
problem, however fine in practice the distinction may between because causal and rights-
based 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 pos-
sible 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.
(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 men-
tioned 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 regu-
lation. 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 dis-
cussed 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) baseline-
based 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 pro-
portionate intervention or of achieving an absolute standard, and that, in turn, relates to the
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 sub-
stance 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 stand-
ard 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 param-
eters 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 tech-
nique, 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.
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 dam-
age 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.
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 ques-
tion, 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.
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 auto-
matic 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 inter-
vention 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.

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
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, har-
monized 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.
Table A Definition of Contamination

Comparison with Risk Risk assessment
‘baseline’ value assessment above threshold
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 • •
(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.
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.
642 emma lees
Table A Continued
Comparison with Risk Risk assessment
‘baseline’ value assessment above threshold
Netherlands58 • •
Peru59 •
Philippines60 •
Poland61 •
Russia62 •
Singapore63 •
South Africa64 •
Spain65 •
Sweden66 •
Switzerland67 •
Thailand68 •
United Kingdom69 •
USA70 •
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. 002-2014-
MINAM (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).
Table B Liability Options

Causal Fault Fault Windfall/ No-fault Owner
Liability liability for liability— value-based liability— liability—
polluter owner liability owner primary?
Argentina (Buenos Aries)71 •

Australia (WA72) • •
Australia (NSW73) • • • (fault-based)
Austria74 • •
Belgium (Walloon)75 • •
Brazil76 • • •
Canada (BC)77 • •
Denmark78 •
Egypt79 •
Finland80 • •
France81 • • •
Germany82 •
India83 •
Indonesia84
Italy85 •
Japan86 •
Malaysia87 •
Mexico88 •
Netherlands89
Peru90
(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.
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. 002-2014-
MINAM (on 24 March 2014).
644 emma lees
Table B Continued
Causal Fault Fault Windfall/ No-fault Owner
Liability liability for liability— value-based liability— liability—
polluter owner liability owner primary?
Philippines91
Poland92 •
Russia93 •
Singapore94 •
South Africa95 •
Spain96
Sweden97
Switzerland98 •
Thailand99 •
UK100
USA101 •
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.
(‘Superfund’).
Table C Remediation
Absolute/baseline Risk-based Best Available Reasonable
standard remediation Technique Remediation
Argentina102 • •
Australia (Western Australia103) •
Australia (New South Wales104) •
Austria105 • • •
Belgium (Walloon)106
Brazil107 •
Canada (BC)108 •
Denmark109 •
Egypt110 •
Finland111 •
France112 •
Germany113 •
India114 n/a
Indonesia115 n/a
Italy116 •
Japan117 •
Malaysia118 •
Mexico119 •
Netherlands120 • •
(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 there-
fore 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.
646 emma lees
Table C Continued
Absolute/baseline Risk-based Best Available Reasonable
standard remediation Technique Remediation
Peru121 •
Philippines122 n/a
Poland123 •
Russia124 •
Singapore125 •
South Africa126 n/a
Spain127 •
Sweden128 •
Switzerland129 •
Thailand130 n/a
United Kingdom131 •
USA132 •
121 The Supreme Decree No. 002-2013-MINAM (on 25 March 2013) and Supreme Decree No. 002-2014-
MINAM (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 con-
taminated status.
125 Singapore Standard SS 593:2013 Code of Practice for Pollution Control, Annex T.
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.
131 Environmental Protection Act 1990, Part IIA and DEFRA, ‘Environmental Protection Act Part 2A:
Contaminated Land Statutory Guidance’ (2012), s. 6.
(‘Superfund’). See US Environmental Protection Agency, ‘Rules of Thumb for Superfund Remedy Selection’
(Washington D.C., 1997).
Pa rt I I I
SYST E M S
SECTION A
I N F R A ST RUC T U R E
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
29.2.2 Connection through Soft Law Instruments 655
29.2.3 Connection through Judicial Dialogue 661
29.2.4 Connection through Legal Scholarship 665
29.3 Environmental Principles as Legal Catalysts 669
29.3.2 The European Union 670
29.3.3 India 672
29.3.4 Brazil 674
29.3.5 New South Wales (Australia) 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
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 envir-
onmental 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 emer-
gence of a common set of identical legal phenomena globally. This is because environmen-
tal principles—such as the precautionary principle, the polluter-pays principle, the principle
of sustainable development, and the principle of intergenerational equity—are flexible con-
cepts that are differently endorsed as legal ideas across jurisdictions. Isolating environmen-
tal 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 envir-
onmental law in some way. The chapter does however restrict analysis to principles of sub-
stantive 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 environ-
mental principles is what makes them so popular and legally prevalent across jurisdic-
tions.
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 pol-
luter-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.
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 environ-
mental 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 jurisdic-
tions. 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 con-
cludes that environmental principles are innovative and legally exciting concepts in many
legal contexts, which can connect, catalyse, and inspire legal thinking in relation to envir-
onmental 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 environ-
mental 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.
654 eloise scotford
Despite their prevalence in international instruments,6 it is a mistake to think of environ-

mental 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 pro-
viding 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 def-
initions 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 envir-
onmental 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—investi-
gating 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 environ-
mental 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).
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 environ-
mental principles qualify as principles of customary international law—notably the prin-
ciple 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 non-
binding commitments to various sets of environmental principles in a succession of inter-
national 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 sus-
tainable 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’, recogniz-
ing the interdependence of peace, development, and environmental protection, promoting an inter-
national 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).
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 polluter-
pays 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 iden-
tified as ‘environmental principles’ in legal scholarship or national legal developments.
Rather, the Declaration represents a symbolic incarnation of certain environmental prin-
ciples 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 inter-
national 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 environ-
mental 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 repre-
sents 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 environmen-
tal 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).
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 envir-
onmental 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 environ-
mental 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 integra-
tion, 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 judi-
cial 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/les-

raisons-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).
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 environ-
mental 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 inter-
national 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:
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 ‘shatter-
ing of traditional legal boundaries’, increasing regulatory flexibility, and uncertain scientific information:
de Sadeleer, Environmental Principles, at 255–8.
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 polluter-
pays 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 blue-
print 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 envir-
onmental 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 sustain-
able development requires the effective integration of social, economic and environmental consider-
ations 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.
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 ‘envir-
onmental principles’ that has become powerful legally.51 Their symbolic force as quasi-legal
norms,52 along with their flexibility and definitional ambiguity, allows environmental prin-
ciples 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 compet-
ing 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 precaution-
ary 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 dif-
ferent contexts.57 This definitional variation can be seen across different international con-
ventions. In contrast to Rio Principle 15, the UN Framework Convention on Climate Change
(UNFCCC) elaborates that anticipatory and preventive measures should be taken to miti-
gate 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 prin-
ciples ‘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.
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 interpret-
ation within a particular regulatory and legal community.62 Even within a single body of
jurisprudence interpreting and applying the principle, inconsistent versions of the precau-
tionary 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 defin-
itions of the principle.64 In short, the principle leaves room for debate, divergence, and dis-
agreement 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 devel-
opment 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 con-
nectivity 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 tech-
niques), 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 environmen-
tal 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.
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 devel-
opment 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 environmen-
tal principles as common global legal commitments. Environmental principles are not for-
mulated 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 sub-
stantiated) 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 judi-
cial 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 tradi-
tions 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 con-
stitutions. 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.
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 conun-
drum 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] devel-
oped over the past several decades’:73 prevention, precaution, polluter-pays, and environ-
mental 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 con-
nectors 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 dif-
ferent 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).
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 instru-
ments or in judicial reasoning by other courts—to support the development of legal reason-
ing 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 sig-
nificant 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 develop-
ment instruments in connecting and justifying the Court’s reasoning based on environ-
mental 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 prin-
ciple 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 inter-
national sustainable development instruments concerning environmental principles to
support his reasoning. This is a meticulously reasoned judgment that represents a signifi-
cant doctrinal innovation in its substantive application of the precautionary principle, rely-
ing 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].
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 signifi-
cance of this jurisdictional effort in supporting a broader ‘paradigm shift [to a world] where
a culture of sustainability extends to institutions, private development interests, communi-
ties and individuals’.86
These examples of legal reasoning show how environmental principles can act as power-
ful 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 juris-
dictional 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 legis-
lation 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 environ-
mental law scholarship. A significant body of academic writing has developed—in text-
book 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 environmen-
tal 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.
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 environ-
mental 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 dimen-
sion 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 environ-
mental 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 indi-
vidual 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 con-
servation 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).
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 con-
nected response to environmental problems globally, they also feature as a common schol-
arly 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 envir-
onmental law in the mould of other legal subjects, which have strong philosophical or doc-
trinal 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, environ-
mental principles are identified and characterized according to pre-existing legal models of
principles, thereby legitimizing environmental principles as relevantly ‘legal’ and recogniz-
ing them as foundational to different bodies of law. Whilst there are some reasons to sup-
port 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 environmen-
tal 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

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’
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 environ-
mental 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.
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, over-
coming 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 environmen-
tal problems that are collective and often transboundary in nature—by providing a com-
mon 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 funda-
mental challenges in studying the subject, some scholars present environmental principles
as constituting or representing a new legal order for environmental issues. In both prag-
matic 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 fundamen-
tally 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.
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 endorse-
ment 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 envir-
onmental 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 ter-
rain—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 envir-
onments 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
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).
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, mean-
ing 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 invali-
dating 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 inter-
pretive ‘communities’125—particularly courts—are determinative.
Exploring these different examples takes us beyond wondering if and when environ-
mental 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 prin-
ciples 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 cen-
tral 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 devel-
oped 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).
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
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.
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 environ-
mental 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 prin-
ciple 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 environ-
mental 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 conser-
vation 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 chap-
ter 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 devel-
opment, 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 estab-
lishment 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.
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 con-
strued 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 prin-
ciple, 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 environmen-
tal 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 ambi-
tion 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 inappropri-
ate, 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-green-
tribunalngt/. 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-member-
southern-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.
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 prob-
lems in the arena of the courtroom.
29.3.4 Brazil
In Brazil,155 there is also energetic application of environmental principles—the precau-
tionary principle in particular—against a more explicitly supportive legislative and consti-
tutional 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 author-
ities 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 decid-
ing many cases, ranging from disputes concerning the approval of industrial plants and
GMOs to civil liability claims relating to environmental damage. Rather than these devel-
opments 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 environmen-
tal 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 stand-
ards 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).
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 predict-
able 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 precau-
tionary 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 (sus-
pending 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 instru-
mento 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 pre-
cedents 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.
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 com-
plex and intricate body of reasoning prescribing good decision-making in relation to envir-
onmental 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 plan-
ning 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 innova-
tive 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 environ-
mental 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 environ-
mental 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.
Environmental principles are a prominent, emerging, and inspiring legal force in environ-
mental law globally. Despite their inconsistent groupings and ambiguous meanings, they
are increasingly taking on legal identities in a range of legal cultures, mediating trans-
national 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.
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.

de Sadeleer, N., Environmental Principles: From Political Slogans to Legal Rules (Oxford: Oxford
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).
Publishing, 2017).
Viñuales, J. E. (ed.), The Rio Declaration on Environment and Development: A Commentary (Oxford:
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.
CHAPTER 30
Distr ibu tion

of Pow ers
Moritz Reese
30.1 Overview 679

30.2 Distribution of Powers in Multilevel Environmental
Governance-Institutional Fundamentals 680
30.2.1 The Distinction Between Federal and Unitary Systems 680
30.2.2 The Role of Administrative Regulation 684
30.2.3 The Role of Executive Competences 684
30.2.4 Fiscal, Taxing, and Spending Competences 687
30.2.5 The Role of Local Community Governments and
Self-governing Bodies 688
30.3 General Principles and Concepts of Distribution
of Powers 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
distribution of powers 679
30.3.3.4 The Relation Between Legislative Steering

and Local Permitting: Integrated Pollution Control 699
30.3.3.5 The Role of Coordination 700
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 organiza-
tional 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 distrib-
ute 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 environ-
mental 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
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 impli-
cations 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 Governance-
Institutional 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.
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 estab-
lished 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 administra-
tive 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 govern-
ment 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 parlia-
mentary 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.
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 far-
reaching 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 differ-
ent 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 ten-
dency 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, espe-
cially 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.
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.
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 exten-
sively 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 dif-
ferent 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 con-
stituent 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.
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 admin-
istrations. 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 regula-
tions. 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 environ-
mental 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 interest-
ing implications on trias politica which, however, cannot be further analysed in this context.
Central Government
National Parliament
Basic rules, main regulations National Administration/EPAs:
instruments etc. empowers Supplementary regulations/standards
Direct execution in some countries/fields
empowers empowers empowers
Reg. Parliaments/Councils Reg. Administration/EPAs:

Basic rules, main regulations Suplementary regional standards:
instruments etc. empowers
• Further details and standards not
regulated on central level
• Circulars/decrease regulating
implementation practice
Constituent Units 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.
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 dele-
gated 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 ineffi-
cient, 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 indi-
vidual 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 ‘overfil-
ing’—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 exer-
cised 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, delega-
tion 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 authoritar-
ian 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.
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 inefficien-
cies, 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 promulga-
tion 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.
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 eco-
nomic 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.
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.
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 rele-
vant 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 munici-
palities 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 struc-
ture. 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 pur-
poses 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.
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 cen-
tralized and uniform regulation.
30.3.1 Reasons for Decentralization to Local Government

Decentralized government is widely seen as a fundamental factor of collective and indi-
vidual 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.’
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 func-
tional 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 prov-
able 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 con-
stitutional 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 funda-
mental 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 spe-
cific 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 aug-
mented 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’.
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 environ-
mental 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 develop-
ment 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 suffi-
cient 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 circum-
stances, 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
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 exter-
nalization 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, munici-
palities, 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 frame-
work 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 environ-
mental 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, trans-
boundary 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 compe-
tences 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.
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 allow-
able 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.
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 envir-
onmental 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 comple-
mented 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 competi-
tion 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 quintessen-
tial 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.
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 rela-
tionship 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 decen-
tralized government, some countries are also proclaiming equal living conditions as a
nationwide aim in itself. Article 72 German Basic Law, for example, confines federal legisla-
tion 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 Environment-
Competitiveness 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.
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 con-
crete 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.
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 promin-
ent 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 imple-
mentation 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 enforce-
ment. 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 substan-
tive 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 estab-
lishing 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.
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 regula-
tions (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 environ-
mental 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.
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 optimiz-
ing 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 author-
ities, 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 exter-
nalities.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 enforce-
ment 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.
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.
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’.
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 interest-
ing 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 con-
stituent 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 long-
term 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.

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).
chapter 31
Propert y Systems
a n d En v ironm en ta l
R egu l ation
Christopher P. Rodgers
31.1 Overview 703

31.2 Property Paradigms and Environmental Law 704
31.3 ‘Public’ and ‘Private’ Conceptions of Property 706
31.4 Interactions Between ‘Public’ and ‘Private’ Rights 709
31.5 Indigenous Property Systems: Custom and Resource Use 712
31.6 Property Structures and Environmental Stewardship 715
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
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 under-
pin 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 deter-
mining 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 envir-
onment, 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.
property systems and environmental regulation 705
for the determination of ownership and use-entitlements, its failure to consider the func-
tional 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 relation-
ship 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 exe-
cutes 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 poten-
tially 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 relation-
ships (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.
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 constitu-
ent 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
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.
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 attri-
butes 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 devel-
opment 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 envir-
onmental 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 spe-
cies 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.
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 recog-
nized 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 fun-
damental 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 land-
owner 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).
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, neverthe-
less, 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 land-
owners. 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 pri-
vately 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 ‘domin-
ant’ 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 plan-
ning 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.
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 recog-
nized 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 conser-
vation 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 conserva-
tion 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).
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 appro-
priate 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 miti-
gation 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).
‘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 implica-
tions 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 pos-
sess 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 own-
ership 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.
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 ances-
tors), ‘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 propri-
etor 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 con-
cepts 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.
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 eco-
system 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 liv-
ing 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.
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 relation-
ship 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 relation-
ship 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 develop-
ment 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.
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 introdu-
cing 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 applica-
tion. 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 envir-
onmental 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.
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 prin-
ciples 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 under-
pin 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 obliga-
tion 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.
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 alter-
natively 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 devel-
opment programmes, such as (in England) Environmental Stewardship and (since 2016) the Countryside
Stewardship Scheme.
approach seen in common law property systems. Maori and aboriginal customary arrange-
ments 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 envir-
onmental 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 constitu-
ent 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.
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.

Arnold, C. A. ‘The Reconstitution of Property: Property as a Web of Interests’ (2002) 26 Harvard
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:
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
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
32.3.2 Single Versus Multiple Agencies 725
32.3.3 Integrated Versus Functional Agencies 727
32.3.4 Concentrated Versus Devolved Systems 728
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
32.6.1 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 The Regulated as Self-Regulator 743
32.7.2 Individuals as Regulators 743
32.7.3 Enterprises as Regulators 744
720 brian preston
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 aca-
demic 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.
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.
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, envir-
onmental 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 ombuds-
men 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.
15 Ibid., at 207.
16 Macrory, Regulation, Enforcement and Governance in Environmental Law, at 150–1.
17 Ibid., at 151.
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 non-
departmental public body’ responsible for ‘regulating major industry and waste, treat-
ment 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.
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 legis-
lation 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 supervis-
ing 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 parlia-
mentary 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.
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 jurisdic-
tion’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 govern-
ment 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 bureau-
cratic 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

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.
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 ‘legis-
lation 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-executive-
orders.
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/about-
nea/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-environmental-
authorities/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/.
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 func-
tions 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 gov-
ernment), 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).
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 super-
agency 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 con-
siderable variation between different jurisdictions as to: the proportion of regulators which
are integrated versus functional agencies; the nature of the various integrated and func-
tional 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/.
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 non-
regulatory 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 dom-
inant 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/marine-
management-organisation.
60 Coal Authority, ‘About us’, at: http://www.gov.uk/government/organisations/the-coal-authority/about.
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 author-
ity 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 regu-
latory 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

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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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 admin-
istrative 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 admin-
istrator’ 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 super-
vision ‘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.
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 construc-
tion 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 deter-
mination 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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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 consti-
tutional 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 constitu-
tional 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 nation-
states 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 submit-
ted 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 prin-
ciples 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 estab-
lished 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].
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

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 Auditors-
General, 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 com-
mittee 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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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 oper-
ates 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 environ-
mental 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 com-
pel 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 infor-
mation 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-plan-
ning-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.
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, anti-
corruption 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 commu-
nity 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 regu-
lated 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 envir-
onmental 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’.
112 Ibid. 113 Ibid., at 197.
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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 submis-
sions 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 formula-
tion 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 govern-
ment 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 environ-
mental 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 sustain-
ability and social responsibility of enterprises if a certain standard of environmental per-
formance 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 guide-
lines’.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.
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 sustain-
able 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 estab-
lished 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 promul-
gated environmental legislation and regulations. Two NGOs that do ‘fulfil a range of execu-
tive 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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decisions and orders.126 NGOs and community associations play a significant role in
enforcing and shaping environmental regulation by commencing appropriate environmen-
tal 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, envir-
onmental 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 contra-
ventions of the law and by assisting or lobbying governments to develop or maintain suffi-
cient 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 regu-
lation’ 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.
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 insur-
ance 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 gov-
ernments 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 con-
dition 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.
138 Protection of the Environment Administration Act 1991 (NSW), s. 6(2)(d)(i).
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 manage-
ment, 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 pre-
pared 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 develop-
ment 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).
144 Protection of the Environment Operations Act 1997 (NSW) Pt 6.3.
145 Contaminated Land Management Act 1997 (NSW) Pt 4.
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 devel-
opment 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 exercis-
ing 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 environ-
mental 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 regis-
tered 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 pre-
scribed 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 par-
ties, 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.
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 plan-
ning standards developed by third parties have occasionally been incorporated by govern-
ments 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 develop-
ment 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.
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 mech-
anisms 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 eco-
nomic 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 pre-
sented 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/voluntaryapproachesforen-
vironmentalpolicy.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.
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 moni-
tor 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 govern-
ment 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 protec-
tion. As a consequence, the scheme was reviewed and revised.172
The second way in which individuals have become quasi-regulators with respect to environ-
mental 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 stem-
ming 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-Vegetation-
Clearing-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.
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 govern-
ments 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 pri-
marily 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, vol-
untary 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 ‘con-
ducting certain activities that pose environmental risks’ to ‘allow scope for businesses to
175 OECD, ‘Voluntary Approaches for Environmental Policy’, at 18.

177 Ibid., at 187–8.
179 See Gunningham, ‘Environmental Law, Regulation and Governance’, at 187; OECD, ‘Voluntary
Approaches for Environmental Policy’, at 18–19.
183 American Chemistry Council, ‘Responsible Care’, available at: https://responsiblecare.ameri-
canchemistry.com/.
184 Ibid.
185 e.g. the NSW government recently introduced the Waste Avoidance and Resource Recovery
Amendment (Container Deposit Scheme) Act 2016 (NSW).
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 dif-
ficulties 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 effi-
ciency 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.
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.
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 ensur-
ing 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.

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:
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).
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/voluntaryapproaches-
forenvironmentalpolicy.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).
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).
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
33.1 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 environ-
mental laws in nearly all legal cultures. But sciences and their roles in e nvironmental laws
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 responsi-
bility 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 experi-
ments ‘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.
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 environ-
mental 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 cata-
lysts 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 sani-
tary 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 accord-
ance 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
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.
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 environ-
mental law in most jurisdictions.21
Third, the sciences have played a symbolic role in the process of legitimizing environ-
mental 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 deci-
sion-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 imparti-
ality 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 (includ-
ing 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.
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
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).
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 encoun-
tering. 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 arbi-
trary 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.
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 doc-
trines 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 ‘con-
tain’ 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 sta-
tionary 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 import-
antly, 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 dis-
cussed 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-order-
glossary/1400003721993/1400003721993.
51 This was the issue with three out of four litigants in Austin v UK [2012] ECHR 459.
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 constitu-
tional 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 inter-
national organizations.56 In international and national jurisdictions there is also the privat-
izing 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 assess-
ment 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).
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 science-
based assessment at the heart of policy making.61
This distinction between risk assessment and risk management is not generated from scien-
tific 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 stand-
ards 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 scien-
tific 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.
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 informa-
tion, 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 deter-
minations 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).
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 environ-
mental 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 sci-
ence underpinning regulation.77 Likewise, the legislative proposals above are quite obvi-
ously 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-secret-
science-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-of-
science-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), avail-
able at: https://science.house.gov/legislation/hearings/full-committee-hearing-making-epa-great-again.
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 con-
cerned 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-to-
peaceful-protest.
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 con-
ditions 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 can-
not 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 some-
thing 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:
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.
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 discus-
sion 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 con-
sider 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 decision-
makers they need to understand what they are reviewing so as to carry out the courts’ con-
stitutional 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 decision-
makers 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
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).
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 import-
ance 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 decision-
making 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 under-
stand 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 envir-
onmental 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.
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 dis-
played’ 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 insti-
tutional 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
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.
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 regula-
tory 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 gener-
alist 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
118 E. Lees, ‘Allocation of Decision-Making Power under the Habitats Directive’ (2016) 28 Journal of
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.
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 explain-
ing 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 identi-
fied 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].
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
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.

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.
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:
Porter, T., Trust in Numbers: The Pursuit of Objectivity in Science and Public Life (Princeton: Princeton
Wagner, W., Fisher, E., and Pascual, P., ‘Whose Science? A New Era in Regulatory “Science Wars” ’
(2018) 362 Science 636.
chapter 34
Tr a nsnationa l
N et wor ks
Veerle Heyvaert
34.1 Overview 769

34.2 Transnational Environmental Networks 772
34.3 Mapping Transnational Environmental Networks 776
34.3.2 Public/Public Networks 777
34.3.3 Public/Private Networks 780
34.3.4 Private/Private Networks 781
34.3.5 Private/Public Networks 784
34.3.6 Hybrid Networks 785
34.4 Transnational Networks in Comparative Environmental
Law: Facing the Challenges 786
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/environment-
and-climate-change-law/environment-and-climate-change-law-2017#general-chapters; K. Robbins (ed.),
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, environ-
mental 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 under-
standing 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 under-
deliver 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.
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 engage-
ment 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
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
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 trans-
national 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 envir-
onmental 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 stand-
ards 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 essen-
tially 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.
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 devel-
opment 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 conven-
tional 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 alter-
native, 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, transnation-
alization begets transnationalization.25 Although MEAs and alternative forms of trans-
national 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.
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 regu-
lators 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 inter-
national 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 cli-
mate 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, innova-
tive 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 environ-
mental 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/transnational-
environmental-law.
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 envir-
onmental 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, experi-
ence 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 envir-
onmental 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 estab-
lishment 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 predic-
tion 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
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.
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.
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 weak-
nesses, 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 estab-
lishes 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 thor-
oughly 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.
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-and-
limits-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.
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 devel-
oping 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 acces-
sion, 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 partici-
pation, 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, par-
ticipation 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/.
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 chan-
nels 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.
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 tar-
gets 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 essen-
tially 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/.
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 unsur-
prising 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 com-
panies71 and other stakeholders.72 This multi-party collaboration’s professed aim is to develop
and maintain sustainable shale gas exploitation standards. Increasingly, like-minded organ-
izations in different countries are linking and developing networks. This multiplies oppor-
tunities 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-stake-
holder 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.
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 devel-
opment 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 pri-
vate 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 poten-
tial 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 bor-
rower 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 sus-
tainable 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-agricultural-
forest-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.
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 certifica-
tion 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 commu-
nicate with similarly situated addressees. Nevertheless, in some cases private governance
regimes do steer the behaviour of public authorities. This happens when private environ-
mental 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 trans-
national networks involves the indirect regulation of public authorities via private certifi-
cation. 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 condi-
tionalized 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.
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 wide-
spread 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 argu-
ably 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-rules-
skipjack-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.
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 func-
tions 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/members-
observers/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.
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 compara-
tive 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 trans-
forms 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 compara-
tive 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 admin-
istrative 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-protection-
ozone-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.
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 non-
legal 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 predict-
able 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 operat-
ing 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 trans-
national 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 com-
parative 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)
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.
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 articu-
lated understanding of what constitutes law within a comparative context.
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 con-
flicts, 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 con-
temporary 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.

Abbott, K. W., ‘Strengthening the Transnational Regime Complex for Climate Change’ (2014) 3(1)
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).
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
35.4.2 Jurisdictional Specialization 798
35.4.3 Judicial Specialization 799
35.4.4 Scope and Hierarchy of the Court’s Review 800
35.4.5 Specialist Costs and Standing Rules 802
35.4.6 Access to Legal and Scientific Advice 805
35.4.7 Bespoke Solutions to Environmental Adjudication 806
Annex—Visual Representation of Different Adjudicative Models 808
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
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 environ-
mental 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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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, manage-
able, 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 rela-
tion 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 con-
cludes 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 consid-
ering the different adjudication models possible, therefore, it is necessary to begin by
considering not the formal adjudication structures, but the relationship between these struc-
tures 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.
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 parlia-
mentary 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 funda-
mental 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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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 juris-
dictions 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 admin-
istrative 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 pres-
entation 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 pro-
cess 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 develop-
ment. 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://digital-
commons.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.
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 func-
tions 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 differ-
ent 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 open-
ness 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 adju-
dication 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 environ-
mental 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.
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 under-
standing 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 judi-
ciary 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 meth-
odology 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.
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 straight-
forward, and, it is suggested, more useful. Comparative analysis, as this book has high-
lighted, 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’ out-
comes 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/greening-
justice, xiv.
24 Robinson, ‘Ensuring Access to Justice Through Environmental Courts’, at 369.
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, decision-
making 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
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 ‘environ-
ment’ 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 environ-
mentally 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 pro-
found 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.
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 environ-
mental 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 spe-
cialism 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 sig-
nificant 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 infringe-
ments 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.

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 prop-
erly 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 pre-
dict 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 rela-
tionship 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.
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 second-
ary 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 spe-
cialization of the Court neither ensured that environmental adjudication was easy and
uncontroversial, nor did it ensure a fixed ‘environmental baseline’. Rather, the Court recog-
nized 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 con-
sider 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 tech-
nical 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.
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 indi-
vidual 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 implement-
ing 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 litiga-
tion 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 legisla-
tive 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 environ-
ment 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.
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 ambi-
tious 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 environ-
mental 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.

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 stand-
ing, 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 environ-
ment 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.
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 represen-
tation, 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.
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 environ-
mental 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 environ-
mental adjudication.
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 influ-
ence 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
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 juris-
diction, 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 sys-
tems), 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 consid-
eration 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 chal-
lenges 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
Scientific Advisor
Specialisation
Legal Advisor Merits Review
Standing Costs
INDIAN SUPREME COURT
Judicial
Specialisation
Jurisdictional
Scientific Advisor
Specialisation
Standing Costs
UNITED KINGDOM PLANNING COURT

Judicial
Specialisation
Jurisdictional
Scientific Advisor
Specialisation
Standing Costs
ENVIRONMENT SECTION OF THE SUPERIOR COURT OF VERMONT
Judicial
Specialisation
Jurisdictional
Scientific Advisor
Specialisation
Standing Costs
NEW ZEALAND ENVIRONMENT COURT
Judicial
Specialisation
Jurisdictional
Scientific Advisor
Specialisation
Standing Costs
SWEDEN ENVIRONMENT COURT

Judicial
Specialisation
Jurisdictional
Scientific Advisor
Specialisation
Standing Costs
810 emma lees
Comments from Lord Carnwath, Justice of the UK Supreme Court, are gratefully acknowledged.

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
Carnwath, R., ‘Judicial Protection of the Environment: At Home and Abroad’ (2004) 16 Journal of
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
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
Warnock, C., ‘Reconceptualising the Role of the New Zealand Environment Court’ (2014) 26 Journal
SECTION B
P OL IC Y
I NST RU M E N T S
C OM M A N D A N D
C ON T ROL
R E GU L AT ION
chapter 36
En v ironm en ta l
Pl a n n i ng
Wang Jin
36.1 Overview 815

36.1.1 Concept of Environmental Plan 815
36.1.2 Evolution of Environmental Plans in Different Jurisdictions 816
36.1.2.1 Emergence of Environmental Plans 816
36.1.2.2 Consolidation of Environmental Plans 819
36.1.3 Theory of Environmental Plans 820
36.2 Contents of National Environmental Plans 822
36.2.1 Formulation of National Environmental Plans 822
36.2.2 Areas Covered by National Environmental Plans 824
36.3 Implementation of National Environmental Plans 828
36.3.1 Implementation Techniques 828
36.3.2 Legal Effects of National Environmental Plans 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
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 large-
scale 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 pro-
cesses, 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 administra-
tion, 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.
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 environ-
mental 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 establish-
ing 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 posi-
tive 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 com-
plex 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 envir-
onment that the plan sought to address and the establishment of the 2010 long-term emis-
sion 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.
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 infrastruc-
ture 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 con-
ceals the fact that local authorities are bound to follow central guidance—the National
Planning Policy Framework—which constrains both the content and approach to decision-
making. 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 estab-
lishing 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 environmen-
tal 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.
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 gov-
ernment 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 ‘long-
term 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, introdu-
cing 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 Management-
by-Objective (MBO) became increasingly popular. With the purpose of developing more
effective and efficient environmental policies, it influenced the justification of policy-
making 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 des-
ignated 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 natio-
nale 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.
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 environ-
ment-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 formu-
lation 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.
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 stand-
ards, 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 environmen-
tal plan is not only a plan for the government as the main body and a self-imposed con-
straint 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 plan-
ning. 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 environ-
mental 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 environ-
mental protection work. Therefore, the environmental protection plan is an important ref-
erence 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.
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 estab-
lished 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 illus-
trated 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 pro-
tection 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 environ-
mental 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 man-
agement approach.25 In addition, during the preparation process of the basic environmen-
tal 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.
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 add-
ition, 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 envir-
onmental 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 sub-
mit 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 pro-
gress 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).
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.
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 protec-
tion 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 con-
vergence 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 object-
ives, 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 macro-
economic 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 environmen-
tal 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.
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 agricul-
tural sectors; to encourage and promote innovation at the local level. In addition, the
SNTEDD also identified sixteen quantitative indicators, city garbage recycling rate, non-
mineral 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 environ-
mental 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 regu-
lations, and the detailed development plan. The National Maritime Spatial Planning is
defined in the Environmental Code.39 Only the area regulations and the detailed develop-
ment 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 pollu-
tion and severely punish companies that discharged sewage into the river. In addition to
DEFRA and the UK Environment Agency, there are specialized water resources manage-
ment 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 utbildnings-
vetenskap, 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.
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 cul-
minated in the adoption of the Climate Change Act 2008.42 This Act commits the govern-
ment 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 intermedi-
ate periods and develop policies to achieve them. In addition, the Act requires the govern-
ment 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 nat-
ural 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 (par-
ticularly 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 estab-
lished. 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 sub-
objective covers both the methods and the strategies, which are intended to further elabor-
ate 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 gov-
ernment 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 perform-
ance 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.
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 adop-
tion 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 pro-
tection; 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 par-
ticipatory 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 devel-
opment 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 con-
trol 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.
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 con-
solidate 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 promo-
tion 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 imple-
mentation 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 sec-
toral 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 liabil-
ity 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-emis-
sion 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 parle-
ment, at 25.
The Netherlands has implemented its NEPP objectives by adopting new environmental
laws, designing economic incentive measures and signing voluntary implementation cov-
enants 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 regu-
latory 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 dele-
gated general measures of environmental management to relevant social groups, intermedi-
aries, and advisory and certification bodies. Second, implementation relies on a combination
of market mechanisms and regulatory techniques.53 British environmental laws and regula-
tions 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 compensa-
tion 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 spe-
cific federal structure and distribution of powers in the US Constitution. The federal and
state governments share environmental protection power, but the federal government can-
not 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 unsuccess-
52 The NEPP groups includes actors from the fields of agriculture, transportation, industry, oil refin-
ing, 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.
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 mech-
anism 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 agen-
cies 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 feas-
ible goals to avoid fragmentation of effort. Today, researchers often investigate isolated
components of key problems and waste scarce financial and intellectual resources by need-
less 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) publi-
cizing 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 implemen-
tation 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.
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.
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 compan-
ies, 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.
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 integra-
tion 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 environ-
mental 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 orches-
trated across sectors but also from the local to the national and even the regional and inter-
national 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 par-
ticipatory 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 signifi-
cantly, 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.

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).
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
37.5.1 Plans 842
37.5.2 Land Ownership and Local Populations 843
37.5.3 Controls on Activity 844
37.5.4 Positive Conservation 846
37.6 Enforcement 847
37.7 Marine Protected Areas 848
37.8 Challenges for the Future 850
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.
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 quar-
ries). 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 inter-
national conservation strategies’.4 Yet the term is used as ‘shorthand for a sometimes bewil-
dering 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 leg-
acy 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 side-
effect 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).
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 pur-
poses, 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 pic-
ture, 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 constitut-
ing 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.
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 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.
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 bal-
ance 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 permis-
sible 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 fac-
tor 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
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 cooper-
ation 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 illus-
tration 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 con-
sequences, 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 adop-
tion 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 pro-
tected 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.
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 des-
ignation 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.
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 des-
ignate 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 sup-
ported 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.
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 desig-
nation 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 con-
sideration 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.
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 conser-
vation 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 dis-
crete 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 feed-
back. 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.
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 conserva-
tion 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 legis-
lation 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 straight-
forward 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 pub-
lic 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.
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 pro-
vide 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 signifi-
cant issue in the creation and management of protected areas. As noted earlier in this chap-
ter, 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 espe-
cially where indigenous peoples’ interests are not fully reflected in legal rights of land own-
ership, 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 devel-
oped 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 conser-
vation 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.
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 man-
aged 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 spe-
cific 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 pro-
hibitions 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 popula-
tion 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.
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).
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 spe-
cial 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 regu-
latory 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 prelimin-
ary 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 over-
wintering 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:
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, there-
fore, 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 (poten-
tially) 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 bio-
diversity 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 character-
istics 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 exclu-
sive 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).
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 pro-
tected 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 mar-
ine protected areas of various sorts, either under specific legislation or through the applica-
tion 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 regis-
tered, 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/measure-
91-05-2016.
850 colin t. reid
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 dis-
crete 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 surround-
ings 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.
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 pro-
tected areas must be dynamic, not static, and must allow for future as well as current needs.78

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.
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 853

38.2 Strengths and Weaknesses of ‘Command and Control’
Environmental Standards 854
38.2.1 A Working Definition of ‘Command and
Control’ Standards 854
38.2.2 The Enduring Significance of ‘Command
and Control’ Standards 855
38.2.3 ‘Command and Control’ Standards as
Linked to Self-Regulation and Economic Incentives 857
38.2.4 The Implementation Deficit of ‘Command
and Control’ Standards 860
38.2.5 The Conceptualization Gap of ‘Command and
Control’ Standards 862
38.3 Developing Integrated and Harmonized
Standards through Applied Science Models 864
38.3.1 Science as Trans-jurisdictional? 864
38.3.2 The DPSIR Model 866
38.3.2.2 Key Features of DPSIR 867
38.3.3 DPSIR as a Standard Harmonizer? 868
38.3.4 Limitations of DPSIR in Providing an Integrated View
of Environmental Risks 871
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 con-
cerned 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.
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 environ-
mental 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 con-
trol’ 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 consti-
tutional 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.
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 dimen-
sion 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
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).
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’ stand-
ards 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 amend-
ments 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.
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 signifi-
cance, 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 util-
ity 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:
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.
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 ‘com-
mand 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 def-
initions 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. 10523-
BR, 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 emis-
sion 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.
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 enforce-
ment 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-for-
breaking-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
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 condi-
tions 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

‘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 instal-
lations 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.
71 Harrison, ‘Is Cooperation the Answer?’, at 228.
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 agen-
cies 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
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

‘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, legal-
istic92 ‘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 stand-
ards 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.
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)).
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.
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 inte-
grated 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 facil-
ity 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.
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 pollu-
tion. 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
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.
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 ‘pollu-
tion’. 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 environmen-
tal 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. Grove-
White, 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 genet-
ically 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.
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

DPSIR is particularly relevant for advancing ‘command and control’ standards that are inte-
grated 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 devel-
oped 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 founda-
tional 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 prod-
ucts 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).
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.
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 meas-
ures, 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 Multi-
level 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.
868 bettina lange
Driving Forces
Resp
es
Pressur
esons
Sta ct
te pa
Im
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
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.
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 particu-
lates 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 immis-
sionsseitigen 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/ mensch-
umwelt/luftreinhaltung/luftreinhalteplaene/, 66.
146 ‘Pressures’ can include economic activity factors (e.g. ports, fisheries, agriculture) and actual pol-
lution 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 estab-
lishing 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.
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, regu-
latory 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.
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 indica-
tors (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 natu-
ral, 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.
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 indi-
cators differentiated rather than integrated natural and human factors affecting the environ-
ment. 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 cap-
tured 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).
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 vari-
ous 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.
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.
874 bettina lange
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 jurisdic-
tions. 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 har-
monizing ‘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 model-
ling. 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 pan-
European 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.
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.

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.
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
39.2.1 Domestic Origins and the Global Spread of Environmental
Assessment878
39.2.2 Theory and the Role of Environmental Assessment 881
39.3 Elements of EIA Practice 883
39.3.1 Application 883
39.3.2 Screening 885
39.3.3 Scoping 887
39.3.4 Participation 890
39.3.5 Decisions 892
39.3.6 Follow-up and Monitoring 894
39.4 Discussion: Convergence and Divergence 895
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
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 signifi-
cant 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 differ-
ent 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 dif-
ferent theoretical models that have been developed to explain the structure and role of
environmental assessment as an institutionalized approach to environmental decision-
making. 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.
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 open-
ended 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 exer-
2 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).
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 instru-
ments 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 recogni-
tion 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 pro-
moting 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 devel-
opment 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.
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 environ-
mental 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/.
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 desir-
ability 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 decision-
makers 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 administra-
tive decision-making whereby the decisions respecting planned activities are viewed as
expert driven exercises that are most appropriately addressed by systematic and compre-
hensive 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 deci-
sion-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 uncon-
tested, 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.
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 participa-
tory 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 out-
comes 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 justifi-
cation 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 con-
sidering 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 cer-
tain 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.
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 con-
siderable diversity within this range that is reflective of the political and institutional set-
tings 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 mat-
ters 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).
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 overlap-
ping 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 legisla-
tion 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 dis-
tinction 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 implement-
ing the requirements. The reference in NEPA to legislative EIAs has been largely unimple-
mented, 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, leav-
ing 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 jurisdic-
tions 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 volun-
tary 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 manage-
ment, 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.
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 assess-
ment report is subject to public consultation and must be accounted for in the decision-
making 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 sustain-
ability 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).
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. refiner-
ies, 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 sig-
nificant 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 differ-
ent 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 categoriza-
tion 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 pre-
sumed 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.
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 activ-
ities 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 com-
prehensive 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 pro-
vides 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 rele-
vant 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).
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 pro-
vides 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 insist-
ing 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 out-
comes, 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 con-
sequences and compliance with state environmental requirements, as opposed to identify-
ing 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.
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.
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 con-
sider 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 chal-
lenge in relation to assessing biodiversity impacts and climate change impacts from specific
projects, leading a number of jurisdictions and international bodies to issue specific guid-
ance 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

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’).
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).
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 find-
ings.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.
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 regula-
tory 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 participa-
tion, 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 deci-
sions 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 decision-
making 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 partici-
pants 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 well-
being. 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.
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 agen-
cies 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 decision-
making 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 con-
sent’ 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 deci-
sions 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 decision-
maker, were incorporated into decisions. The difficulty that this structure entails is in ensur-
ing 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-report-
en.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).
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 deci-
sion-making process is a black box, with little opportunity for review. In Russia, assess-
ments 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 con-
sideration 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 func-
tions 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 cab-
inet 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 prac-
tice 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 circum-
stances’. 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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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 implementa-
tion 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 trans-
boundary 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 circum-
stances, 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 less-
ened 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).
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 paralyz-
ing 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.
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 agen-
cies 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 pro-
cess can be applied across multiple jurisdictions and varied political and economic con-
texts. 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 adop-
tion 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 pri-
vate 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 dif-
ferent 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 litiga-
tion. 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.
A related issue involves who has standing to seek review of EA decisions. Under the
Environmental Protection and Biodiversity Conservation Act (Australia), extended stand-
ing 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 discre-
tion in key procedural questions, such as screening and scoping decisions.125
There is a range of other institutional innovations bearing on efficacy that vary consider-
ably across different EA systems. For example, systems differ in the degree of their transpar-
ency 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 deci-
sion-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 influ-
ence 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, poten-
tially 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
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 possibil-
ity 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 monitor-
ing 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 set-
tings, 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 prem-
ised 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 con-
siderably 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).
Returning to the theoretical models, EA processes can be seen as tools for mediating
between the scientific, political, and normative elements within environmental decision-
making. 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 par-
ticipation in institutional settings where these norms are not as well-established.

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).
M A R K ET
M E C H A N ISM S
chapter 40
En v ironm en ta l
Ta x ation
Janet Milne
40.1 Overview 904

40.2 The Theoretical Foundation for Merging Environmental
Protection into Taxation 904
40.3 Environmental Taxation Instruments 906
40.4 The Legal Authority to Use Environmental Taxation 907
40.4.1 Allocation of Power Among Levels of Government 907
40.4.2 Procedural Aspects 909
40.4.3 International Trade Limitations 910
40.5 Design Features of Environmental Taxation 911
40.5.1 The Choice of Tax System 912
40.5.2 The Choice of Tax Base and Taxable Event 913
40.5.3 The Choice of Tax Rate 914
40.5.4 Examples of the Diversity of Environmentally Related Taxes 915
40.5.5 Use of the Revenue 917
40.5.6 Designing Around Equity and Economic Concerns 918
40.6 How Theory Meets Practice: Carbon Pricing
Case Studies 919
40.6.1 British Columbia’s Carbon Tax 919
40.6.2 Ireland’s Carbon Tax 920
40.6.3 Japan’s Carbon Tax 921
40.6.4 United Kingdom’s Carbon Price Floor 921
40.6.5 Canada’s National Carbon Pricing Initiative 921
40.6.6 The European Commission’s Carbon Tax Efforts 922
40.6.7 US Wind Farm Tax Credits 923
40.7 Concluding Remarks: The Role of Environmental Taxation 923
904 janet milne
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 deni-
grate 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 gen-

erate 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.
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 ‘extra-
ordinary 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, achiev-
ing 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 stand-
ard, 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 ration-
ality 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, influ-
ence decisions. This approach does not require the imposition of an economically pre-
cise 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 articula-
tion 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 rele-
vant 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.
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 expend-
itures). 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 rele-
vance. 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.
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 princi-
ple’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 expend-
itures, 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, govern-
ments 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 par-
ticularly 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’ free-
dom 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.
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 match-
ing 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, par-
ticularly 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, inde-
pendent 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 envir-
onmental 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.
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 inter-
state 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 tax-
sharing system among different levels of government to allocate administrative responsibil-
ity 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 gov-
ernment’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.
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 President-
Congress 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 pro-
visions.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 tax-
ation, 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 men-
tioned 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 envir-
onmental 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).
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 govern-
ment 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 environ-
mental 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.
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 govern-
ment, 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 recog-
nize 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 import-
ers 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 sub-
stantial 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 cat-
egory 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 encour-
age 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.
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 country-
specific 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 pur-
poses, 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 pur-
chase 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 actu-
ally 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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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 cap-
and-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 envir-
onmental 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.
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 accord-
ing 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 infla-
tion, 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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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 govern-
ments 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 intro-
duced 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 cali-
brate 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 manufactur-
ing 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).
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 policy-
makers 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 experi-
ences to date.
One possibility is that, as a matter of environmental economics, policymakers may main-
tain 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 envir-
onmental 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.
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 creden-
tials 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 dedi-
cated 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 pro-
grammes 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 indus-
tries 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.

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 indi-
cated 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, <$1), Sweden (1991, $131), Norway (1991, $52), Denmark (1992,
$26), Latvia (1995, $4), Slovenia (1996, $19), Estonia (2000, $2), Switzerland (2008, $86),
Ireland (2010, $22), Iceland (2010, $10), Japan (2012, $3), UK (2013, carbon price floor $24),
France (2014, $25), Mexico (2014, $3), Portugal (2015, $7), South Africa (2016), and Chile
(2017). Carbon taxes also occur at the sub-national level, such as British Columbia, Canada
(2008, $23).
This section offers some thumbnail case studies of carbon taxes to highlight different
approaches to carbon tax design choices, the relationship to trading schemes, and the
challenge of harmonizing carbon pricing across jurisdictional boundaries. It closes by bring-
ing environmental tax expenditures back into the picture, drawing on an example of tax
expenditures for wind farms.
40.6.1 British Columbia’s Carbon Tax

Under the leadership of the Liberal party’s premier, Gordon Campbell, the Canadian prov-
ince of British Columbia introduced a carbon tax in 2008. Despite its name, the Liberal
70 26 U.S.C. 4681, 4682; 26 C.F.R. 52.4682-3.

71 World Bank, Ecofys, and Vivid Economics, State and Trends of Carbon Pricing 2016 (Washington D.C.:
World Bank, 2016) 12, 13 Figure 3.
920 janet milne
party is conservative, but the Premier had developed a personal interest in addressing climate
change. The parliamentary system of government allowed the Premier to move forward
rapidly from the announcement of the intent to introduce a carbon tax in February 2008
budget to the start of the tax in July 2008.72 The tax followed the revenue-neutral model.
The carbon tax applies to greenhouse gas emissions from the combustion of fossil fuels
(CO2, methane, and nitrous oxide) measured by their CO2-e, a tax base with only limited
exemptions that accounts for about 70 per cent of the province’s greenhouse gas emissions.
The tax rate started at $10 Canadian dollars per ton of CO2-e and increased by $5 a year until
it reached $30 per ton in 2012. The upstream collection built on the existing system for
motor fuel taxes and involves a limited number of taxpayers. Under the revenue-neutral
approach, all of the revenue is used to reduce other taxes,73 which allows the government to
provide tax relief to low-income taxpayers, northern and rural homeowners, and senior
citizens (addressing equity concerns) and to reduce the general corporate income tax rate
and the income tax rate for small businesses (addressing economic concerns). Revenue
neutrality is enforced by a requirement that the Finance Minister must propose a revenue-
neutral carbon tax or face a 15 per cent reduction in salary. The tax rate increased to $35
in 2018 and will rise $5 a year until it reaches $50. The new revenue generated by the $5
increases is not committed to revenue neutrality. It will be used to provide additional tax
relief to households, clean growth incentives for industry, and new green initiatives.74
40.6.2 Ireland’s Carbon Tax

Ireland chose a different design for its carbon tax, prompted in part by the surrounding
policy environment and circumstances for its enactment in 2010.75 Faced with a fiscal crisis
during the recession, the Irish government turned to a carbon tax in 2010 to generate new
revenue. The tax base covers CO2 (not CO2-e) emissions from liquid and solid fossil fuels and
peat, concentrating as British Columbia did on fossil fuels and not emissions from other
sources.76 However, unlike British Columbia, the tax does not apply to emissions from the
electricity sector or large industrial facilities, because those sectors were already part of the
EU’s Emissions Trading Scheme (EU ETS), an EU-wide cap-and-trade programme for CO2
emissions. The tax rate started at €15 per ton of CO2 for most fuels and phased up to €20.
When Ireland set its €20 tax rate, it assumed that the carbon tax rate would be close to the
EU ETS trading price, whereas the price of allowances has proven to be substantially lower
in recent years.
72 British Columbia Ministry of Finance, Budget and Fiscal Plan 2008/09—2010/11, 7–37, 9 February
2008; Carbon Tax Act, S.B.C. 2008, chapter 40.
73 See e.g. British Columbia Ministry of Finance, Budget and Fiscal Plan 2016/17—2018/19, 16
February 2016, 56–9.
74 British Columbia Ministry of Finance, Budget 2018. Working for You. Budget and Fiscal Plan
2018/19—2020/21, 20 February 2018, 75–6.
75 Finance Act of 2010, Part 3, chapters 1, 2, 3; Finance Act of 2011, Part 2, § 44 (and subsequent
amendments).
76 The tax also contains some exceptions for CO2 emissions from agricultural and horticultural use of
fossil fuels.
Unlike the British Columbia carbon tax, the Irish tax was not designed as a revenue-neutral
tax, due to the need to generate new revenues to address the fiscal crisis. Revenue from
the tax flows into the general fund. Nonetheless, the Irish carbon tax and related p olicies
addressed equity and competitiveness concerns in other ways. Phasing in the tax for coal
and peat allowed lower income households more time to adjust. The government expanded
its fuel allowance programme prior to implementation of the tax and established a new
program for retrofitting buildings for energy efficiency after the tax went into effect. In
addition, the ability to use the carbon tax to generate new revenue avoided raising income
taxes further, which could have had a more negative effect.
40.6.3 Japan’s Carbon Tax

Japan’s carbon tax, which came into effect in 2012, is designed primarily as a means of
raising revenue earmarked for climate change mitigation projects. The tax applies to fossil
fuels with limited exemptions. The tax rate is low relative to the rates in Canada and Ireland.
It phased up over several years to its current level of 289 Japanese yen per ton of CO2, or
€2.36 using December 2016 currency conversion rates. The revenue is invested in energy
efficiency and low-carbon technology projects. The government estimates that the tax will
reduce CO2 emissions by 0.5 to 2.2 per cent below 1990 levels by 2020, but only 0.2 per cent
of that effect is attributable to the price signal that the carbon tax sends. Thus, the raison
d’etre of the tax is to raise revenue in a manner that bears a policy linkage to the e nvironmental
problem rather than to influence behaviour through a price signal.
40.6.4 United Kingdom’s Carbon Price Floor

The United Kingdom has broken the policy wall separating carbon taxes and trading
schemes by applying a carbon levy to emissions within the EU ETS, subjecting them to two
different forms of carbon pricing. Since 2013, the United Kingdom has applied a ‘carbon
price floor’ to carbon dioxide emissions from the generation of electricity.77 Although the
emissions are subject to the EU ETS, the government determined that the low, fluctuating
price of ETS allowances was not sufficiently encouraging investments in low-carbon tech-
nologies needed to meet the United Kingdom’s emissions reduction goals. It amended its
existing climate change levy, which did not then apply to the electricity sector, and imposed
a new price on fossil fuels used in electricity generation. Thus, the current rate of £18 per ton,
fixed until 2021, creates a minimum price floor for emissions. Taxpayers subject to the carbon
price floor will pay the levy plus the cost of any allowances they need in order to comply
with EU ETS requirements.
40.6.5 Canada’s National Carbon Pricing Initiative

Sub-national carbon pricing poses the question of whether or how to coordinate carbon
price signals across jurisdictional lines. British Columbia’s carbon tax, described above,
77 Finance Act 2000, c. 17, Sch. 6.

922 janet milne
took root in the absence of a national approach to carbon pricing, but other Canadian
provinces have been exploring and executing carbon pricing measures. In October 2016,
Prime Minister Justin Trudeau announced that Canadian provinces should either adopt
carbon pricing that starts in 2018 at a minimum of $10 Canadian per ton and increase $10 a
year to $50 a ton by 2022 or enact a cap-and-trade programme that would achieve equiva-
lent reductions.78 Provinces are charged with designing their programmes and they will
keep any associated revenue. Prime Minister Trudeau indicated that federal government
will apply its own price floor if a province does not comply.
If fully implemented, this approach will ensure carbon pricing throughout Canada. It
could be perceived as evidence of either the success or the flaws of a states-as-laboratories
approach. The individualized provincial actions, such as British Columbia’s, helped lay the
foundation for a more coordinated, federal approach by proving the viability of a carbon
tax. Alternatively, the balkanized, provincial actions could be construed as creating a patch-
work of uneven pricing schemes that the country as a whole then may need to reconcile.
A solution would be to pursue a federal carbon price from the start, but politics do not
always allow for tidy policy-making.
40.6.6 The European Commission’s Carbon Tax Efforts

One cannot leave cross-jurisdictional coordination policy without mentioning the European
Commission’s efforts over three decades to promulgate an energy and carbon tax Directive.
Although one effort failed in 1992,79 the Commission tried again in 2011 to create new
ground rules for energy and carbon taxation that would cross national boundaries.80 As the
European Commission noted in its 2011 proposal, ‘Member States are beginning to introduce
their own CO2 taxes, and approaches may differ. A patchwork of national policies could
create difficulties for businesses operating in different Member States and distortions in
competition within the EU.’81 The proposed Directive ultimately failed to garner sufficient
support from Member States, but it offers an instructive approach to tax design. The 2011
proposed Directive would have required Member States to apply minimum tax rates based
on the energy content of fuel and on the carbon content of fuel outside the EU ETS. In other
words, one fuel can have two types of tax bases—energy and carbon. This approach artfully
recognized that taxes on energy can serve energy efficiency, that taxes on carbon content
can serve climate change goals, and that applying both types of taxes to fuels based on their
characteristics can allow government to more effectively achieve multiple goals.
78 Speech by Prime Minister Justin Trudeau to the House of Commons, 3 October 2016. See also Pan-
Canadian Framework on Clean Growth and Climate Change: Canada’s Plan to Address Climate Change
and Grow the Economy (2016) (adopted 9 December 2016 by most provinces and territories).
79 European Commission, Proposal for a Council Directive Introducing a Tax on Carbon Dioxide
Emissions and Energy, COM(92) 226, 30 June 1992.
80 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.
81 Ibid., at 7.
40.6.7 US Wind Farm Tax Credits

As indicated above, Pigouvian theory recognizes the possibility of rewarding positive
externalities through the use of subsidies, including tax expenditures. One can debate whether
governments opt for tax expenditures more out of political expedience than economic the-
ory, but the US tax expenditures to encourage wind farm construction provide one example
of climate-related tax expenditures that arguably reward positive externalities.
Since 1992 the federal tax code has provided an income tax credit for wind farms.82 The
‘production tax credit’ is currently equal to 2.3 cents per kilowatt hour of electricity that a
wind farm (and other kinds of qualifying renewable facilities) produces and sells over the
first ten years of operation. As a result of economic stimulation legislation in response to the
recession, wind farm operators can instead claim an investment tax credit equal to 30 per cent
of qualifying capital costs to obtain an immediate tax benefit,83 and for several years during
the recession they could choose a direct cash grant in lieu of the investment tax credit to
help taxpayers who did not have a tax appetite. Enacted on a short-term basis to aid the
transition to renewable energy, these tax benefits are phasing down and will cease to exist
for facilities that begin construction after 2019.
Placing tax expenditures on the same analytical table as carbon taxes highlights the
question of who should pay for climate change mitigation—general taxpayers, who bear the
cost of foregone revenue, or emitters of greenhouse gases. It also underscores the issue of
government’s role in choosing new technologies. Tax expenditures often have to identify
the specific activities that are eligible for the benefits, codifying policy decisions that carbon
taxes sidestep by leaving the choice of new technologies to the marketplace.
40.7 Concluding Remarks: The Role

of Environmental Taxation
Stepping back, this chapter concludes with several thoughts about the role of environmental
taxation. Within the sphere of environmental taxation, policy-makers can choose to impose
a price or offer a benefit. An environmental tax will change behaviour if its price signal is
loud enough and targets the right actors. An environmental tax expenditure will improve
the environment if it rewards activities that otherwise would not have occurred. Both are
fiscal instruments, but one generates new revenue, while the other reduces the flow of rev-
enue into public coffers, giving them very different fiscal profiles. The choice between the
two approaches invokes the fundamental question of who should pay for environmental
protection—polluters and the users of resources by paying a tax, or society by underwriting
tax ‘bounties’.
Within the family of market-based instruments more broadly, there is healthy sibling
rivalry between environmental taxes and cap-and-trade regimes. Each sends a price signal
into the marketplace but in different ways—taxation by imposing a constant price on pollu-
82 26 U.S.C. § 45. 83 Ibid. § 48.

924 janet milne
tion payable to government, cap-and-trade by creating a right to pollute that is sold in the
marketplace. As debate over the relative merits continues and as experience with instruments
expands, the siblings may grow closer. Cap-and-trade regimes are starting to assume design
features such as limits on prices or safety valves that will offer more tax-like certainty in
price exposure. As seen in the UK example, taxes are stepping in to give a helping hand to a
weak cap-and-trade price signal.
In relation to environmental instruments more generally, environmental taxation is
unique in harnessing people’s seemingly inherent desire to avoid paying tax. The salience of
the negative or positive tax signal can be powerful. In addition, environmental taxation may
be particularly useful for addressing nonpoint sources of pollution that permeate society
and that are more difficult to regulate. The fingers of taxation can reach deep into the econ-
omy. However, environmental taxation’s relative role among other instruments will depend
on whether the jurisdiction provides a receptive environment for it to flourish. Its role will
be shaped by a country’s legal framework, fiscal structure, and needs, the politics of taxation
and regulation, and the existing regulatory landscape and tradition.
As environmental taxation continues to develop, it faces several challenges of a positive,
constructive nature. With the translation of economic theory into legal instruments, policy-
makers and analysts need to understand how legal frameworks in any particular jurisdic-
tion will shape the choice and design of environmental taxation instruments. Sharing this
knowledge across national boundaries can contribute to a stronger international understand-
ing of taxation’s relative legal barriers and opportunities. The integration of environmental
taxation into the portfolio of environmental instruments also requires breaching the walls
that traditionally have existed between tax specialists and environmental specialists at
policy-making and administrative levels. As taxation moves into the terrain of environmental
protection, tax experts need to understand environmental law and policy and environmental
specialists must learn the ways of the tax world. And ultimately, there is the challenge of
proving that environmental taxation is in fact an environmentally effective instrument.
This is not a simple task, given the many factors that contribute to decision-making in the
marketplace. It lies in the hands of economists more than lawyers to isolate causal effects.
But it is an essential task. If they warrant their environmental title, environmental taxation
instruments must be the means to the environmental end, not an end in themselves.
Thanks are due to Alexis Peters (JD, Vermont Law School, 2016, MPhil in Environmental Policy,
University of Cambridge 2016) for her research assistance.

Convery, F. J., L. Dunne, and D. Joyce, Ireland’s Carbon Tax and the Fiscal Crisis: Issues in Fiscal
Adjustment, Environmental Effectiveness, Competitiveness, Leakage and Equity Implications, OECD
Environment Working Papers No. 59 (Paris: OECD, 2013).
Duff, D. G., ‘Carbon Taxation in British Columbia’ (2008) 10 Vermont Journal of Environmental Law 85.
European Environment Agency, Environmental Taxes: Recent Developments in Tools for Integration
(Luxembourg: European Environment Agency, 2000).
European Environment Agency, Environmental Taxation and EU Environmental Policies (Copenhagen:

European Environment Agency, 2016).
Gale, R. and S. Barg, with A. Gillies, Green Budget Reform: An International Casebook of Leading
Practices (London: Earthscan Publications, 1995).
Holzer, K., Carbon-related Border Tax Adjustment and WTO Law (Cheltenham: Edward Elgar, 2014).
Määttä, K. Environmental Taxes: An Introductory Analysis (Cheltenham: Edward Elgar, 2006).
Milne, J. E. (ed.), Environmental Taxation and the Law (Cheltenham: Edward Elgar, 2017).
Milne, J. E. and M. S. Andersen (eds,), Handbook of Research on Environmental Taxation (Cheltenham:
Edward Elgar Publishing, 2012).
OECD, Economic Instruments for Environmental Protection (Paris: OECD, 1989).
OECD, The Political Economy of Environmentally Related Taxes (Paris: OECD, 2006).
OECD, Taxation, Innovation and the Environment (Paris: OECD, 2010).
Partnership for Market Readiness, Carbon Tax Guide: A Handbook for Policy Makers (Washington
D.C.: World Bank, 2017).
Pistone, P. and M. V. Ezcurra, Energy Taxation, Environmental Protection and State Aids: Tracing the
Path from Divergence to Convergence (Amsterdam: IBFD, 2016).
Rosenstock, M., ‘Environmental Taxation within the European Union’ (2014) 8(2) Cyprus Economic
Policy Review 113.
Snape, J. and J. de Souza, Environmental Taxation Law: Policy, Contexts and Practice (Aldershot:
Ashgate, 2006).
Watkins, E., S. Withana, and P. ten Brink, Capacity Building for Environmental Tax Reform (Brussels:
Institute for Environmental European Policy, 2017).
chapter 41
Tr a di ng Sch em e s
Sanja Bogojević
41.1 Overview 926

41.2 The Concept of Market Mechanisms in Environmental Law 929
41.3 Comparative Law Methodologies and Environmental
Law Scholarship931
41.4 Promotion of Market Mechanisms in Environmental
Law Scholarship933
41.5 Price Control and Emissions Trading Schemes 936
41.5.2 The EU Emissions Trading Scheme 939
41.5.3 Chinese Pilot Emission Trading Schemes 942
41.6 Emissions Trading Schemes, Typologies and Comparative
41.7 Conclusion 947
41.1 Overview
Market concepts play a significant role in environmental law. In fact, many would
argue that the necessity of environmental regulation is due to the failure of markets to price
environmental costs and thereby internalize externalities.1 Although the concept of a
1 R. Baldwin, M. Cave, and M. Lodge, Understanding Regulation: Theory, Strategy, and Practice
(Oxford: Oxford University Press, 2nd edn. 2012), 11–12.
trading schemes 927
‘market failure’ allows for a variety of definitions,2 Nicholas Stern has named climate change
‘the biggest market failure the world has ever seen’,3 which has become a commonly used
phrase to urge action on environmental degradation.4 The vocabulary is a clear indication
of the influence of economic thought on environmental law and policy.5 To understand
environmental problems in these ‘anthropocentric financial terms’6 mandates an under-
standing of markets and their failures and how they frame our view of environmental prob-
lems. Moreover, as problems and solutions in environmental law are co-produced,7 meaning
that the understanding of one informs the perception of the other, corrective interventions
by the state to regulate market failures often rely on market forces. Such regulatory strategies
are broadly defined as ‘market mechanisms’, which is also the topic of this chapter.
Market mechanism, however, is a very broad regulatory concept. As a start, it embodies
a wide range of regulatory options, including trading schemes, taxes, subsidies, and p ayments
for ecosystem services.8 Moreover, these different mechanisms are, to different extents,
applied to a range of environmental problems, including overfishing, air pollution, water
scarcity, and water quality, as well as biodiversity loss.9 In addition, market mechanisms are
emerging in a great variety of jurisdictions, covering Kazakhstan, Japan, South Korea, and
China, and so stretch beyond the ‘Anglo-American world’ in which the regulatory concept
first took form.10 They also operate on different regulatory levels, including local, regional,
and international, and sometimes on more than one such level.
Considering the diverse application of market mechanisms, it may seem obvious that
environmental law scholars would turn to comparative law methodologies, which allow
insights from other legal settings to feed into the study and understanding of law.11 Yet, as
this chapter shows, the two disciplines rarely overlap in this context. The reason is that
market mechanisms in environmental law tend to be analysed with the aim of promoting
their use, as opposed to investigating these on a normative basis.12 Such promotion takes
2 For instance, pollution or more broadly unrestricted access to common pool resources–both, argu-
ably, sharing the characteristic of ‘nonexcludability’, see N. Keohane and S. Olmstead, Markets and the
Environment (Washington D.C.: Island Press, 2007), 82.
3 N. Stern, The Economics of Climate Change: The Stern Review (Cambridge: Cambridge University
Press, 2007), viii.
4 See e.g. D. Bodansky, The Art and Craft of International Environmental Law (Cambridge: Harvard
5 This influence, some argue, is ‘disproportionate’, see M. Mehling, ‘The Comparative Law of Climate
Change: A Research Agenda’ (2015) 24 Review of European, Comparative & International Environmental
Law 341, at 342.
6 E. Fisher, B. Lange, and E. Scotford, Environmental Law: Text, Cases and Materials (Oxford: Oxford
University Press, 2013), 51. On the impact of economists’ framing, see A. Barry and D. Slater, ‘Technology,
Politics and the Market: An Interview with Michel Callon’ (2002) 31 Economy and Society 285, at 286.
7 S. Bogojević, Emissions Trading Schemes: Markets, States and Law (Oxford: Hart Publishing, 2013),
chapter 2.
8 For detailed analysis of taxes, subsidies, and payments-for-ecosystem services see the contributions
in this volume respectively by J. Milne, J. Gundlach and M. Gerrard, and A. Garcia Ureta.
9 See e.g. S. Bogojević, ‘Environmental (Property) Rights in Market-Based Management’ in
S. Bogojević and R. Rayfuse (eds.), Environmental Rights in Europe and Beyond (Oxford: Hart Publishing,
2018) 105.
10 A. Lo, ‘Challenges to the Development of Carbon Markets in China’ (2016) 16 Climate Policy 109,
at 110.
11 See section 41.3 of this chapter. 12 Ibid.
928 sanja bogojević
different forms, including rallying for their application instead of traditional, direct regulation;
pushing for a particular market mechanism—mainly emissions trading schemes—as opposed
to other regulatory strategies—typically taxation; or applying emissions trading schemes as
an ideal regulatory structure across jurisdictions. As a result, these debates tend to be dis-
tilled to discussions on design, which, in turn, easily fall into the trap of presenting market
mechanisms as straightforward and merely instrumental. This chapter acts as a warning
against such methodological approaches and in doing so makes the following point, relevant
to a Handbook of Comparative Environmental Law.
Market mechanisms take a myriad of different legal forms depending on the understand-
ing of the environmental problem at issue and the role of markets entrusted to respond to
these. Inevitably such perceptions are determined by legal culture.13 To appreciate the func-
tion of market mechanisms more generally and across the globe, the focus needs to be on a
typology of legal questions, as opposed to design structures. Although the specific line of
questions may take different forms, they need to inquire into state interventions in creating
and managing market mechanisms.14 In this chapter, this is done by focusing on a specific
market mechanism—emissions trading in the European Union (EU) and China—and exam-
ining how the price of emissions allowances is controlled.
The reason for focusing on price management is two-fold. First, pricing pollution, and
thus internalizing externalities, is the basic idea of emissions trading.15 In fact, price of
emission allowances is often used as an indicator of the regulatory success of carbon
markets.16 Second, and more crucially, carbon price control stands at the intersection of
state and market power. Analysing who determines the price—the market, the state, or a
mix of the two—is thus a crucial step in better understanding this environmental regu-
latory mechanism. Here it is significant to note that these case studies are not exhaustive
accounts of the trading schemes investigated or the many ways in which price control
can be exercised. The point is rather to show that price control is expressed through a
range of distinct measures, each offering the state different roles that ultimately depend
on legal culture. Aiming to develop ideal prototypes of such measures is therefore a
fruitless exercise.
These findings are set out in five key sections. First, in section 41.2, the concept of a
market mechanism is unpacked by outlining the multifaceted regulatory strategies it
involves and the variety of environmental problems to which it is applied. In section
41.3 the limited use of comparative law methodologies in studying these mechanisms is
outlined, and the promotion of market mechanisms explained in section 41.4. Here,
emissions trading schemes are singled out as the focus of study for the remaining chap-
ter. In the following section, 41.5, emissions trading schemes found in the EU and China
are examined first by briefly placing them in the context in which they were set up and
then by investigating the measures taken in each jurisdiction to manage the price of
emissions allowances. These findings are evaluated in section 41.6, and the discussion is
concluded in section 41.7.
13 See Bogojević, Emissions Trading Schemes. 14 Ibid., at 177.

15 See section 41.3 of this chapter.
16 See e.g. International Carbon Action Partnership (ICAP), Emissions Trading Worldwide (Status
Report 2017) 7, available at: https://icapcarbonaction.com/en/status-report-2017.
trading schemes 929
41.2 The Concept of Market Mechanisms

in Environmental Law
‘Market mechanism’, as mentioned above, is a broad regulatory concept. It is sometimes

referred to as ‘market-based instrument’, ‘economic incentive’, or ‘economic instrument’,
with no apparent distinction drawn between the various regulatory terms.17 The label may
thus appear irrelevant. Yet international climate change negotiations show fierce division
in whether to allow the mention of ‘markets’ in the final treaty agreements. Dan Bodansky,
Jutta Brunnée, and Lavanya Rajamani explain that as a concession to market opponents, the
Paris Agreement, specifically Article 6, never directly refers to ‘markets’ but instead recognizes
that parties may engage in ‘cooperative approaches’ based on ‘internationally transferred
mitigation outcomes’ to achieve their nationally determined contributions.18 In fact, the mere
mention of markets is controversial, and often seen as simply selling off environmental
harms to those who can afford to commit them, which is charged with moral implications.19
There is therefore much in a name.
Moreover, ‘market mechanisms’ encompass a broad sub-group of various market-centred
regulatory strategies. These include tradable permits or offsets, payments for ecosystem ser-
vices, capital subsidies, taxes, charges, fees, feed-in-tariffs, eco-labelling schemes, perform-
ance bonds, deposit and refund schemes, liability and compensation funds, and financial
mechanisms, as some environmental law scholars make sure to mention.20 Others, however,
argue that the term ‘market mechanism’ refers primarily to taxes and trading schemes.21
Often trading schemes are singled out as the most prominent market mechanism,22 and so
these take the centre stage in both environmental law scholarship and environmental law and
policy.23 Ultimately, there are various ways in which this sub-group of regulatory strategies
may be categorized, including according to their particular level of ‘ “true” market elements’,24
while others have called for a revised typology altogether.25 At this point, it is thus useful
17 J. Penca, ‘Marketing the Market: The Ideology of Market Mechanisms for Biodiversity Conservation’
(2013) 2 Transnational Environmental Law 235, at 250.
18 D. Bodansky, J. Brunnée, and L. Rajamani, International Climate Change Law (Oxford: Oxford
19 See e.g. D. Satz, Why Some Things Should Not Be For Sale (Oxford: Oxford University Press, 2010).
20 Penca, ‘Marketing the Market’, at 250.
21 D. Driesen, ‘Alternatives to Regulation? Market Mechanisms and the Environment’ in Baldwin,
Cave, and Lodge (eds.), The Oxford Handbook of Regulation, at 203–23, 206.
22 In part this is because trading schemes tend to be applied to climate change, which in turn tends to
be singled out as the most pressing environmental problem, see S. Bogojević, ‘Global Imbalances in
Climate Protection, Leadership Ambitions and EU Climate Change Law’ in A. Bakardjieva Engelbrekt
and others (eds.), The EU’s Role in Fighting Global Imbalances (Cheltenham: Edward Elgar Publishing,
2016), 89–108.
23 S. Bogojević, ‘Climate Change Law and Policy in the European Union’ in C. Carlarne, K. Gray, and
R. Tarasofsky (eds.), Oxford Handbook of International Climate Change Law (Oxford: Oxford University
Press, 2016), 674–91.
24 C. Reid and W. Nsoh, The Privatisation of Biodiversity? New Approaches to Conservation Law
(Cheltenham: Edward Elgar Publishing, 2016), 18. This point is further developed in section 41.3.
25 R. Pirard and R. Lapeyre, ‘Classifying Market-Based Instruments for Ecosystem Services: A Guide
to the Literature Jungle’ (2014) 9 Ecosystem Services 106, at 109.
to imagine market mechanisms as Russian nesting dolls, containing a number of variously

‘sized’ regulatory strategies.
Despite the ambiguity and controversy of the use of market concepts in law, Robin Paul
Malloy notes that borrowing market concepts has ‘transformed legal reasoning’.26 In the
case of environmental law, this is particularly clear in two regards. First, markets have pro-
vided a set framework through which to understand environmental problems. For instance,
Garrett Hardin’s well-known case of herdsmen with access to a ‘pasture open to all’, which
ultimately leads to the ‘tragedy of the commons’, relies on a market-specific prism.27 Here,
the herdsmen are thought rational in the sense that they would want to maximize their gains
in a market economy. It is subsequently assumed that the herdsmen would add a dditional
grazing animals to capitalize on the benefits of allowing these to graze for free.28 The under-
lying problem that Hardin thus paints is that holding resources in common allows exploit-
ation to persist, if no mechanisms exist whereby costs imposed on others are internalized.
Hardin’s study is limited in its normative claims, at least insofar as he envisions several
possible regulatory solutions to the outlined tragedy, including direct regulation, subsidies,
taxes, and privatization.29 Yet his study is part of a wide scholarly base regarded as promot-
ing the reliance on market forces in responding to environmental problems.30 The creation
of market mechanisms is consequently the second transformation that market concepts
have contributed to environmental law.
In earlier studies,31 I have shown that beyond the overarching problem of responding to
overexploitation, different views as to why overexploitation occurs exist, leading to different
market structures being promoted and set up. Focusing on emissions trading scholarship,
three models are used to illustrate this: the Economic Efficiency model, the Private Property
Rights model, and the Command and Control model. According to these, market mechanisms
are supposed to internalize externalities by creating economic opportunities incentivizing
such action (the Economic Efficiency Model); establishing a private-property based govern-
ance regime that replaces government control of common resources believed to be squan-
dered (the Private Property Rights Model); and ensuring regulatory compliance (the Command
and Control Model). This exercise makes obvious that market mechanisms as regulatory
concepts must be viewed through a kaleidoscope of hopes and objectives. This is significant
to note, as the way in which environmental problems are imagined, influences how their
solutions are advanced; in other words, the two are co-produced.32 What this means is that
market mechanisms are not static regulatory strategies but rather diverse governance
regimes in which the role of the states and the market overlap and exist in symbiosis. This
helps to explain that there is no uniform definition of market mechanisms. They differ
depending on how we understand environmental problems and ultimately the role of the
state in remedying these.
26 R. P. Malloy, Law in a Market Context: An Introduction to Market Concepts in Legal Reasoning
27 G. Hardin, ‘The Tragedy of the Commons’ (1968) 162 Science 1243, at 1244.
28 As explained in Fisher, Lange, and Scotford, Environmental Law, at 27.
29 Hardin, ‘The Tragedy of the Commons’, at 1254.
30 Bogojević, Emissions Trading Schemes, at chapter 2. 31 Ibid.
32 Terminology borrowed from S. Jasanoff, ‘The Idiom of Co-Production’ in S. Jasanoff (ed.), States of
Knowledge: The Co-Production of Science and Social Order (Abingdon: Routledge, 2004), 1.
trading schemes 931
As a consequence, the functions assigned to market mechanisms and thus also the
c onstruction of such mechanisms are disputed, as is the understanding of whether these
amount to ‘genuine’ markets and what that in fact entails.33 For example, some scholars
study market mechanisms as used in environmental law alongside markets found in
everyday activities, such as retail stores, supermarkets, farmers’ markets, or the New York
Stock Exchange.34 From this viewpoint, this regulatory strategy forms part of a broader
decentralized market economy and so its existence depends on a political establishment.
Others, however, argue that markets are concepts used figuratively. As explained by John
Mcmillian, ‘[i]n addition to markets, there is also the market, an abstraction as in “the
market economy” or “the free market” or “the market system” ’.35 Such systems are clearly
distinguished from the traditional bazaar and marketplace but it is not altogether clear
how they fit the view of market mechanisms as mere ‘public policy instruments designed
to achieve climate targets’.36
Simply put, discussions on market mechanisms are complicated. Still, looking back over
the past forty years of environmental law scholarship on the topic, starting with the second
half of the twentieth century and the era of so-called ‘Market Romanticism’,37 we see that
these debates have managed to make a real and effective appeal for action.38 In other words,
they have ‘captured the imagination of both legal scholars and policymakers’39 and in doing
so, made the idea of markets in law so powerful that domestic, regional, and international
environmental laws are now presumed to incorporate it.40
41.3 Comparative Law Methodologies

and Environmental Law Scholarship
As a preliminary point in turning to comparative law, it is safe to state that the subject is
ascribed various functions.41 Broadly seen, however, comparative law is understood to
allow legal rules and legal traditions to be compared with the objective to ‘gain insights
33 e.g. AG Campos Sánchez-Bordona describes the EU ETS as a ‘genuine’ market, see Opinion delivered
on 5 July 2016, at para. 1 in Case C-321/15 ArcelorMittal Rodanga et Schifflange SA, ECLI:EU:C:2017:179. Cf.
C. Hilson, Regulating Pollution: A UK and EC Perspective (Oxford: Hart Publishing, 2000), 103.
34 See e.g. Keohane and Olmstead, Markets and the Environment, at 55.
35 J. Mcmillan, Reinventing the Bazaar: A Natural History of Markets (NYC: W.W. Norton & Company,
2003), 6.
36 ICAP, Emissions Trading Worldwide.
37 T. McNish, ‘Carbon Offsets are a Bridge Too Far in the Tradable Property Rights Revolution’ (2012)
36 Harvard Environmental Law Review 387, at 394. See also G. Frug, ‘The Ideology of Bureaucracy in
American Law’ (1984) 97 Harvard Law Review 1276, at 1283–4.
38 Penca, ‘Marketing the Market’, at 251. 39 Malloy, Law in a Market Context, at 3.
40 See e.g. S. L. Hsu, ‘International Market Mechanisms’ in Carlarne, Gray, and Tarasofsky (eds.), The
Oxford Handbook of International Climate Change Law, at 239–56, 241. This is not to say that no oppos-
ition to this regulatory move exists, see Bodansky, Brunnée, and Rajamani, International Climate Change
Law, at 236.
41 See e.g. C. Valcke and M. Grellette, ‘Three Functions of Function in Comparative Legal Studies’ in
M. Adams and D. Heirbaut (eds.), The Method and Culture of Comparative Law (Oxford: Hart Publishing,
2014), 99–112, at 99.
that would be denied to one whose study is limited to the law of a single country’,42 or
more generally, to be ‘inspired as to how in other jurisdictions similar problems . . . have
been addressed’.43 Arguably these are useful analytical frameworks for environmental law
scholarship, and in particular in studying market mechanisms, which, as described above,
comprise a wide range of regulatory options that are applied to a variety of environmental
problems across jurisdictional boundaries. Yet environmental law scholarship and com-
parative law have not had a great love affair—in fact, the two rarely speak.
For instance, environmental law rarely features in comparative law research, and when
it does, it tends to be in the form of an isolated case study.44 As an example, environmental
law as a subject relevant to the study of comparative law tends to be omitted from major
handbooks on comparative law.45 Environmental lawyers have attempted to engage with
comparative law scholarship but mainly with the question of legal transplants.46 Rarely do
environmental lawyers dig deep into the wide range of methodologies offered by compara-
tive law,47 despite calls for such scholarly interaction.48
Several reasons lie behind this lack of communication. One relates to the nature of
comparative law scholarship, which, Örücü explains, lacks an overall methodology and this
makes engagement with other disciplines challenging.49 Another is its narrow analytical
scope, at least as defined by traditional comparative lawyers. Zweigert and Kötz, for e xample,
saw the subject as one that purposes comparisons of different legal systems,50 as opposed to
regulatory options operating in different forms, levels, and stages. Considering the disparity
and fragmented nature of environmental law,51 such an analytical framework appears
uninvitingly constrained.
42 R. B. Schlesinger et al., Comparative Law: Cases, Text, Materials (New York: Foundation Press, 6th
edn. 1998), 2, as cited in E. Morgera, ‘Global Environmental Law and Comparative Legal Methods’ (2015)
24 Review of European, Comparative & International Environmental Law 254, at 257.
43 M. Peeters, ‘Greenhouse Gas Emissions Trading in the EU’ in D. Farber and M. Peeters (eds.),
Climate Change Law, vol. 1 (Cheltenham: Edward Elgar Publishing, 2016), 377–87, at 385.
44 Morgera, ‘Global Environmental Law and Comparative Legal Methods’, at 254.
45 See e.g. M. Reimann and R. Zimmermann (eds.), The Oxford Handbook of Comparative Law
(Oxford: Oxford University Press, 2008); E. Örücu and D. Nelken (eds.), Comparative Law: A Handbook
(Oxford: Hart Publishing, 2007); M. Adams and J. Bomhoff (eds.), Practice and Theory in Comparative
Law (Cambridge: Cambridge University Press, 2014); J. Smits (ed.), Elgar Encyclopedia of Comparative
Law (Cheltenham: Edward Elgar Publishing, 2nd edn. 2012).
46 See e.g. A. Boute, ‘The Impossible Transplant of the EU Emissions Trading Schemes: The Challenge
of Energy Market Regulation’ (2017) 6 TEL 59; J. Scott, ‘From Brussels with Love: The Transatlantic
Travels of European Law and the Chemistry of Regulatory Attraction’ (2009) 57 American Journal of
Comparative Law 897; J. Wiener, ‘Something Borrowed for Something Blue: Legal Transplants and the
Evolution of Global Environmental Law’ (2001) 27 Ecology Law Quarterly 1295.
47 Morgera, ‘Global Environmental Law and Comparative Legal Methods’.
48 See e.g. E. Fisher and others, ‘Maturity and Methodology: Starting a Debate about Environmental
Law Scholarship’ (2009) 21 Journal of Environmental Law 213, at 242–3; Morgera, ‘Global Environmental
Law and Comparative Legal Methods’; Peeters, ‘Greenhouse Gas Emissions Trading in the EU’.
49 E. Örücü, ‘Methodology of Comparative Law’ in J. Smits (ed.), Elgar Encyclopedia of Comparative
Law (Cheltenham: Edward Elgar Publishing, 2nd edn. 2012), 560–76, at 573.
50 K. Zweigert and H. Kötz, An Introduction to Comparative Law (Oxford: Oxford University Press,
3rd edn. 1998), 2.
51 Fisher, Lange, and Scotford, Environmental Law, at chapter 1.
trading schemes 933
There is yet another reason for the limited use of comparative law in the context of
analysing market mechanisms in environmental law. Hage reminds us that although a major
motivation for comparative law research is to find ‘good, if not the best possible, law’,52 such
investigation needs to be evaluated on a ‘truly normative basis’.53 What this means is that
laws cannot be described and assembled simply to justify legal solutions for particular kinds
of cases; rather, all rules in the analytical framework need to be ‘possible candidates’ for
some legal system.54 Discussions on market mechanisms in environmental law, however,
rarely allow such an open competitive field where the best fit for regulatory strategies is sought;
rather, market mechanisms are traditionally discussed and compared with the aim of
promoting their use. Such promotion is carried out in at least three ways as described next.
41.4 Promotion of Market Mechanisms

in Environmental Law Scholarship
The initial and still to a certain extent most common analytical frame for discussing market
mechanisms is contrasting it with traditional, or the so-called ‘command and control’ type
of regulation.55 Such comparisons were the typical starting point for environmental law
discussions in the 1980s where the two regulatory options were often dichotomized on the
grounds that market mechanisms are more cost-efficient, straightforward, and democratic
than traditional regulation.56 In the same vein, direct regulation is often called ‘command
and control’, and this, as Maria Lee explains, ‘with derogatory intent’ to connote ‘soviet style
interference in private life’.57 Ultimately, the objective is to parade and so promote market
mechanisms as a regulatory option that leaves no choice to policy-makers other than
adoption.58 These initial discussions on market mechanisms should not be dismissed; they
managed to introduce market mechanisms to the arena of environmental law and spur
regulatory action on pressing environmental problems, such as climate change. Yet they did
so at the cost of casting direct regulation as unfairly draconic and market mechanisms as
perfectly simple and positioned largely outside of law.59
Another classic analytical frame used in environmental law to discuss market m echanisms
is that of comparing emissions taxes and emissions trading—both market mechanisms—with
52 J. Hage, ‘Comparative Law as Method and the Method of Comparative Law’ in M. Adams and
D. Heirbaut (eds.), The Method and Culture of Comparative Law: Essays in Honour of Mark Van Hoecke
(Oxford: Hart Publishing, 2014), 37–52, at 47.
53 Ibid. 54 Ibid.
55 See e.g. R. Stewart, ‘Models for Environment Regulation: Central Planning versus Market-Based
Approaches’ (1991) 19 Boston College Environmental Affairs Law Review 547, and as pointed out in
D. Driesen, ‘Is Emissions Trading an Economic Incentive Program?: Replacing the Command and
Control/Economic Incentive Dichotomy’ (1998) 55 Washington Lee Law Review 289.
56 For an analysis of this debate see Bogojević, Emissions Trading Schemes, at chapters 1, 6.
57 M. Lee, EU Environmental Law: Challenges, Change and Decision-Making (Oxford: Hart Publishing,
2005), 183.
58 Writing in the context of emissions trading more specifically, see R. Baldwin, ‘Regulation Lite: The
Rise of Emissions Trading’ (2008) 2 Regulatory Governance 193, at 194.
59 Bogojević, Emissions Trading Schemes, at chapter 6.
the aim of promoting one, often the latter.60 This builds on the important work of Arthur
Pigou, who proposed that polluters be taxed at an amount equal to the marginal cost of the
waste emitted.61 Such a tax, Mark Sagoff explains, ‘would give the polluters an incentive to
control pollution to the point at which they would have to pay more to reduce emissions
by the next unit that society would benefit from that unit of reduction’.62 This Pigouvian
approach was criticized by Ronald Coase who, in his seminal work, emphasized the recip-
rocal nature of harm, exemplified by pollution; and instead of a centrally determined tax,
pushed for the creation of a bargaining system where the cost of pollution would be allo-
cated according to market mechanisms.63 What is important to underline is that although
both Pigou and Coase make a call for externalities to be internalized, Pigou grants this role
to the government while Coase understands this as a task for the market. This view not only
brought a ‘new market into existence’,64 and so fertilized the idea of trading schemes; it also
started the modern law and economics movement.65
When the two regulatory options are compared, this is typically with the aim of mustering
favour for one above the other based on their different levels of ‘true’ market elements. Bettina
Lange explains how ‘high marketness’ is associated with competitive, price-based markets,
described in neoclassical economic theory, while ‘low marketness’ involves, for instance,
reliance on organizational hierarchies for the coordination of economic transactions.66 In
this light, trading schemes tend to score high on ‘marketness’ whereas tax, which requires
the state to determine it, often stands at the other end of this spectrum.67 Similar distinctions
are found in the case law of the Court of Justice of the European Union (CJEU). Advocate
General (AG) Juliane Kokott, for instance, points out that an emissions trading scheme
such as the EU scheme is ‘governed solely by supply and demand . . . and is not fixed in
advance’,68 and on this basis concludes that it would be ‘unusual’ to describe the price of an
emissions allowance as a charge or tax.69 A related evaluation of the differences between
taxing and trading emissions is drawn by the California Supreme Court in interpreting the
Californian emissions trading scheme.70 In environmental law scholarship comparisons of
this kind were frequently rolled out in the early debates when the advocacy of ‘free markets’
60 For criticism of this approach, see D. Driesen, ‘Emissions Trading Versus Pollution Taxes: Playing
Nice with Other Instruments’ (2018) 48 Environmental Law 29.
61 A. Pigou, Wealth and Welfare (London: Macmilian, 1912).
62 M. Sagoff, Price, Principle and the Environment (Cambridge: Cambridge University Press, 2004),
112–13.
63 R. Coase, ‘The Problem of Social Cost’ (1960) 3 Journal of Law and Economics 1.
64 D. MacKenzie, Material Markets: How Economic Agents are Constructed (Oxford: Oxford University
Press, 2009), 137.
65 C. McCrudden, ‘Legal Research and the Social Sciences’ (2006) 122 Law Quarterly Review 632, at 639.
66 B. Lange, ‘Regulating Economic Activity Through Performative Discourses: A Case Study of the
EU Carbon Market’ in B. Lange, F. Haines, and D. Thomas (eds.), Regulatory Transformations: Rethinking
Economy-Society Interactions (Oxford: Hart Publishing, 2015), 151–80, at 155.
67 Ibid., at 172.
68 Opinion of AG Juliane Kokott delivered on 6 October 2011, Case C-366/10 Air Transport Association
of America and Others [2011] ECR I-13755, at para. 215.
70 Californian Chamber of Commerce et al. v State Air Resources Board et al., C075954 (Super. Ct. Nos.
34-2013-80001464-CU-WM-GDS). The distinction drawn by the Californian Supreme Court in this
regard is that tax is compulsory and the payer receives nothing of specific value for the payment of the
tax itself.
trading schemes 935
was particularly strong and taxing was rejected in favour of emissions trading. However, as
trading schemes dipped in popularity71 taxes gained preference,72 all in conformity with the
assumed dichotomy between the two.
A third frame applied in environmental law in the study of market mechanisms focuses
on one regulatory strategy, typically emissions trading, and promotes it as a response to all
manner of environmental problems,73 though chiefly to climate change, to be applied across
jurisdictions. Such comparisons tend to focus on emissions trading design and creating
a typology of ideal designs that are transposable elsewhere.74 In fact, this is the so-called
‘late-1990s dream’ of top-down global design, which in recent times ‘seems far away, if not
impossible’.75 This traditional view, however, is still relevant to the current decentralized
international environmental law context where, especially following the Paris Agreement,
national schemes that can act as a ‘model rule’ for horizontal application are particularly in
demand.76 The EU emissions trading scheme (EU ETS), for example, is often entrusted this
role of a ‘messianic model of effectively protecting global public goods in the 21st century’,77
and thus thought to take the lead in this regard,78 despite fundamental differences in the
receiving environment.79 For instance, the idea of the Chinese pilot trading schemes are
seen as having been enacted ‘under EU influence’,80 and many of the reforms to the EU ETS
have been mimicked elsewhere.81 This is not to overlook other emissions trading schemes
that have gained prominence—the US Regional Greenhouse Gas Initiative (RGGI), for
example, is thought to have been ‘an instructive model’ for the development of trading
schemes in California.82
71 See e.g. J. Short, ‘The Paranoid Style in Regulatory Reform’ (2012) 63 Hastings Law Journal 633;
G. Lynch-Wood and D. Williamson, ‘The Receptive Capacity of Firms-Why Differences Matter’ (2011) 23
Journal of Environmental Law 383.
72 See e.g. S. L. Hsu, The Case for a Carbon Tax: Getting Past Our Hang-ups to Effective Climate Policy
(Washington D.C.: Island Press, 2012).
73 Studies of the use of trading schemes across environmental problems tend to read as a caution
towards such a universal approach, see e.g. C. Reid, ‘Between Priceless and Worthless: Challenges in
Using Market Mechanisms for Conserving Biodiversity’ (2013) 2 Transnational Environmental Law 217,
at 224. Cf. Schuck, who suggests tradable schemes to deal with the refugee crises, see P. H. Schuck,
‘Creating a Market for Refugees in Europe’, New York Times, 9 June 2015.
74 This outlook is further examined in Bogojević, Emissions Trading Scheme, at 162–5.
75 R. Newell, W. Pizer, and D. Raimi, ‘Carbon Markets 15 Years after Kyoto: Lessons Learned, New
Challenges’ (2013) 27 Journal of Economic Perspectives 123, at 123.
76 D. Bodansky and others, ‘Facilitating Linkage of Climate Policies through the Paris Outcome’
(2015) Climate Policy 1, at 6. On a similar note, see M. Mehling, ‘Between Twilight and Renaissance:
Changing Prospects for the Carbon Market’ (2013) 5 Carbon & Climate Law Review 277, at 287–8.
77 M. Hartmann, ‘Global Public Goods and Asymmetric Markets: Carbon Emissions Trading and
Border Carbon Adjustments’ in E. U. Petersmann (ed.), Multilevel Governance of Interdependent Public
Goods: Theories, Rules and Institutions for the Central Policy Challenge in the 21st Century (EUI Working
Papers, 2012), 131, at 136. On a similar note, see S. Manea, ‘Defining Emissions Entitlements in the
Constitution of the EU Emissions Trading System’ (2012) 1 Transnataional Environmental Law 303, at 307.
78 European Commission, The State of the European Carbon Market in 2012, COM(2012) 652 final, at 3.
79 Boute, ‘The Impossible Transplant’, at 59. 80 Ibid., at 60.
81 C. Tung, ‘Reflections on the Chinese Carbon Market’ in G. van Calster, W. Vandenberghe, and
L. Reins (eds.), Research Handbook on Climate Change Mitigation (Cheltenham: Edward Elgar Publishing,
2015), 86–100, at 93.
82 D. Hodas and P. DeArmey, ‘North American Greenhouse Gas Emission Trading Scheme’ in Farber
and Peeters (eds.), Climate Change Law (Edward Elgar, 2016), at 388–99, 391.
The result of this promotional view is the idea that an ‘ideal type’ of emissions trading
construction can be found.83 It is, nevertheless, not clear what such an ideal requires. In an
early piece, Ackerman and Stewart identify four administrative tasks in setting up an emis-
sions trading scheme, with cap-setting at the top of the list followed by the establishment of an
auction system for emissions allowances, a title registry, and a penalty system before conclud-
ing ‘that’s that’.84 This description is part of a broader view that emissions trading is easier
to establish than traditional direct regulation,85 and that a generic step-by-step design model
exists for creating such schemes.86 More recent scholarly contributions, however, apply an
equally systematic and straightforward description of the way in which emissions trading
schemes are constructed. Nash and Revesz list three such steps,87 Lohmann four,88 Bell and
McGillivray prolong it to six,89 while van Asselt extends the list to eight non-exhaustive steps.90
In sum, what this short overview shows is that environmental law scholarship tends to
examine market mechanisms with the overall aim of promoting their use. As such, com-
parative law, with its required normative outlook, has been of limited use. In the case of the
study of emissions trading schemes, these are often valued for their simplicity and wide
applicability across borders, which has meant that they are discussed as straightforward
design types to which a typology can be established and translated elsewhere. In the next
section, it is explained why such approaches need revisiting.
41.5 Price Control and Emissions

Trading Schemes
41.5.1 Introduction
Emissions trading schemes enjoy a high profile in environmental law, thanks to their global
application. Such schemes are currently operating in North America, the EU and other
parts of Europe, New Zealand, South Korea, China, and Tokyo, and are being cautiously
83 R. Sandor, ‘Creating New Markets: The Chicago Climate Exchange’ in I. Kaul and P. Conceicao
(eds.), The New Public Finance: Responding to Global Challenges (Oxford: Oxford University Press, 2006),
389–416, at 392–3.
84 B. Ackerman and R. Stewart, ‘Reforming Environmental Law’ (1985) 37 Stanford Law Review
1333, at 1347.
85 D. Driesen, ‘Capping Carbon’ (2010) 1 Environmental Law 1, at 11. 86 Ibid.
87 These include setting the acceptable level of pollution, allocating the allowances, and allowing trad-
ing, see J. Nash and R. Revesz, ‘Markets and Geography: Designing Marketable Permit Schemes to
Control Local and Regional Pollutants’ (2001) 28 Ecology Law Quarterly 569, at 675–6.
88 L. Lohmann, ‘Uncertainty Markets and Carbon Markets: Variations on Polanyian Themes’ (2010)
15 New Political Economy 225, at 237–8.
89 Including establishing general policies on the environment, setting standards, applying these,
enforcing permissions, providing information and monitoring, see S. Bell and D. McGillivray,
Environmental Law (Oxford: Oxford University Press, 7th edn. 2008), 224.
90 This list covers determining scope, timing, cap, allowance allocation, questions on leakage and
competition, access to offsets, price and enforcement, see H. van Asselt, ‘The Design and Implementation
of Greenhouse Gas Emissions Trading’ in Carlarne, Gray, and Tarasofsky (eds.), Oxford Handbook of
International Climate Change Law, 332–56, 337–50.
trading schemes 937
initiated in, for instance, Kazakhstan, and contemplated in Turkey, Ukraine, the Russian
Federation, Thailand, Mexico, and parts of South America.91 Undeniably international
environmental law has played a key part in creating this global regulatory appeal, although
both China and the EU, which are examined in this chapter, were initially hesitant towards
their use.92 Each, however, found emissions trading to be a good fit for their various domes-
tic regulatory needs.
In the case of the EU emissions trading scheme (EU ETS), it constitutes the cornerstone
of the EU’s initiative to reduce its greenhouse gases emissions and thus combat global warm-
ing.93 However, the EU ETS serves several other regulatory objectives, including implement-
ing international law, helping create a leading carbon economy, and establishing a flexible
legal framework.94 As such, the discourses concerning this carbon market are often ‘contra-
dictory articulatory practices’.95 The struggle to find consensus on the rationale of emissions
trading schemes and subsequently decide how they ought to be organized has entailed an
onslaught of litigation brought by the industry, EU institutions, and Member States.96
Turning to China, a national ETS has been proposed in order to meet national green-
house gas emission control targets,97 and in this way, take a leading role on the international
climate scene.98 Emissions trading, nevertheless, is seen as serving other purposes too. It
was introduced as a response to the need to improve energy security, which is thought to be
in jeopardy as energy demand soars along with the dependence on oil import.99 Pollution
is vividly present in the form of deadly smog across the country, and this too highlights the
need for decreasing emissions, and shifting away from fossil fuels.100 As a preliminary point,
what this shows is that although there are overlaps in the rationale for pursuing emissions
trading in the EU and China, the two emissions trading schemes respond to specific issues
in their respective legal, environmental, economic, and political settings.
In fact, a comparative study of the price control of emissions allowances in China and the
EU may seem a dubious exercise considering the many differences between the two legal
systems. After all, environmental law in China operates against the ‘socialist legacy’101 that
91 A global, interactive overview of emissions trading schemes is available online at: https://
icapcarbonaction.com/ets-map.
92 See Bodansky, Brunnée, and Rajamani, International Climate Change Law, at 192.
93 Opinion AG Campos Sánchez-Bordona, ArcelorMittal, para. 1; European Council Conclusions
of 23 and 24 October on the 2030 climate and energy policy framework (Brussels, 24 October 2014)
EUCO 169/14.
94 Bogojević, Emissions Trading Schemes, at chapter four.
95 Lange, ‘A Case Study of the EU Carbon Market’, at 166.
96 See e.g. S. Bogojević, ‘EU Climate Change Litigation, the Role of the European Courts, and the
Importance of Legal Culture’ (2013) 35 Law & Policy 184.
97 ‘The 13th Five-year Plan for Economic and Social Development of the People’s Republic of China’
(State Council, 17 March 2016), available in Chinese at: http://www.gov.cn/xinwen/2016-03/17/content_
5054992.htm.
98 D. Zhang, M. Springmann, and V. Karplus, ‘Equity and Emissions Trading in China’ (2016) 134
Climatic Change 131, at 132.
99 See Q. Tianbao, ‘Climate Change and Emissions Trading Schemes (EU ETS): China’s Perspective and
International Experiences’ (Konrad Adenauer Stiftung, 2012), 34, available at: http://www.kas.de/wf/doc/
kas_31160-1522-1-30.pdf?121018044105.
100 W. McKibbin and W. Liu, ‘China: Ambitious Targets and Policies’ (Brookings Institution, July
2017), 49, available at: https://www.brookings.edu/wp-content/uploads/2016/07/china-mckibbin.pdf.
101 Boute, ‘The Impossible Transplant’, at 84.
is shared by some EU Member States but not to the EU legal tradition.102 Additionally,
emissions trading in China is not the flagship measure, which the EU ETS is to the EU.103
Rather, China relies heavily on direct regulation, as well as other market mechanisms like
taxation.104 Moreover, whereas the EU has a single scheme, China has eight different pilot
schemes,105 each worthy of individual academic attention.106 China is in the process of
setting up a national ETS but at the time of writing, no such trading scheme is yet running.
It is useful to draw further attention to the many divergences that exist in this context.
To start with, each of these trading schemes is distinct in both its scope and ambition. With
regard to the EU ETS, it started operating in 2005 and encompasses the ‘far greatest vol-
umes and liquidity’107 of any current trading scheme,108 covering private energy-intensive
industry only.109 The Chinese pilot trading schemes, on the other hand, are determined
by the relevant local authorities,110 meaning that eight distinct trading schemes have been
established independently. It is impossible to discuss these in much detail here but it is
worth noting that the Chinese schemes were initiated at different times and regulate differ-
ent greenhouse gases.111 Although carbon dioxide emissions are most commonly targeted,
the Chongquing carbon market, for example, includes also methane. Similarly, they differ
in terms of the installations that they cover, which, in part is dictated by their distinct
102 M. Bobek (ed.), Central European Judges Under the European Influence: The Transformative Power
of the EU Revisited (Oxford: Hart Publishing, 2015).
103 J. Swartz, ‘China’s National Emissions Trading System: Implications for Carbon Markets and
Trade’ (International Centre for Trade and Sustainable Development, 2016), 24, available at: http://www.
ieta.org/resources/China/Chinas_National_ETS_Implications_for_Carbon_Markets_and_Trade_
ICTSD_March2016_Jeff_Swartz.pdf.
104 Environmental Protection Tax Law of the People’s Republic of China, Standing Committee of the
National People’s Congress (adopted on 25 December 2016 and effective on 1 January 2018), as cited in
A. Boute and H. Zhang, ‘The Role of the Market and Traditional Regulation in Decarbonising China’s
Energy Supply’ (2018) 30 Journal of Environmental Law 261.
105 Five municipalities (Beijing, Tianjin, Shanghai, Chongqing, and Shenzhen) and three provinces
(Hubei, Guangdong, and Fujian) have established pilot emissions trading schemes. For an overview see
Q. Tianbao and Z. Meng, ‘Emissions Trading in China’ in Farber and Peeters (eds), Climate Change Law,
at 400–14, 400.
106 See e.g. H. Zhang, ‘Designing the Regulatory Framework of an Emissions Trading Programme in
China: Lesson from Tianjin’ (2012) 4 Carbon & Climate Law Review 329.
107 It represents 45 per cent of the EU’s greenhouse gas emissions, see Newell, Pizer, and Raimi,
‘Carbon Markets 15 Years after Kyoto’, at 126.
108 Once the Chinese national ETS starts operating, however, it will be twice the size of the EU ETS,
see Y. Zeng, S. Weishaar, and O. Couwenberg, ‘Absolute vs. Intensity-based Caps for Carbon Emissions
Target Setting: A Risk Linking the EU ETS to the Chinese national ETS? A Risk Linking the EU ETS to
the Chinese National ETS?’ (2016) 4 European Journal of Risk Regulation 764, at 764.
109 Note that it is stipulated to expand in scope over time, see Art. 30 Council Directive 2003/87 estab-
lishing a scheme for greenhouse gas emission allowance trading within the Community and amending
Directive 96/61, OJ 2003 L 275/32. e.g. attempts have been made to include also aviation, see S. Bogojević,
‘Legalising Environmental Leadership: A Comment on the CJEU’s Ruling in C-366/10 on the Inclusion
of Aviation in the EU Emissions Trading Scheme’ (2012) 24 Journal of Environmental Law 345.
110 Tung, ‘Reflections on the Chinese Carbon Market’, at 95.
111 e.g. in June 2013 the Shenzhen emissions trading scheme was the first to start operating, while the
Fujian Province initiated its trading scheme only in September 2016, see ICAP, Emissions Trading
Worldwide.
trading schemes 939
geographical distribution.112 The Guangdong emissions trading scheme, for instance, is

applicable to energy-intensive industry, such as cement and steel, as well as the aviation sector,
while the emissions trading schemes in Hubei and Shanghai include food manufacturers
and the shipping sector, respectively. Additionally, each region or city has different ambitions
for their specific carbon market. The Shenzhen emissions trading scheme, as an e xample,
has as overall target to reduce carbon dioxide emissions by 45 per cent by 2020 compared to
2005 levels, and to peak its carbon dioxide emissions by 2022, while the overall trend among
the other trading schemes is to accomplish about a 20 per cent reduction in carbon intensity
compared to 2015 levels.113
What should be clear at this point is that carbon markets are set up for a range of different,
sometimes overlapping reasons in distinct jurisdictions and so their construction, includ-
ing price management, will inevitably be context-specific. This means that any attempt to
pin down an ideal, global design for emissions trading is a futile exercise. Indeed, compara-
tive law, and in particular the scholarship on legal transplants, reminds us of this. Each rule
or legal framework has a particular meaning tied to a particular place and time,114 and each
legal concept and line of legal argument operates in pre-determined traditional contexts
that spring from different cultural traditions—or according to a so-called mentalité.115 As
such, a rule or regime cannot be examined only as a black-letter text; rather it must be
scrutinized through a culture-specific lens, taking legal culture into consideration.116
Ideally the rest of this chapter would have undertaken such an analysis of the pilot
schemes in China in comparing price control management to that found in the EU ETS. Yet
it does not do this for a number reasons. First, the brevity of the chapter does not allow for
such a detailed investigation. Second, and more significantly, many of the legal and policy
frameworks relevant to the Chinese pilot trading schemes are not translated to English and
what is more, access to information in this context is often limited.117 This, however, is a
useful finding as it acts as evidence of the methodological difficulties that are faced in
conducing comparative law studies.
41.5.2 The EU Emissions Trading Scheme

The price of emissions allowances under the EU ETS is volatile. When the carbon market
was set up in 2005, carbon prices quickly crashed,118 which is a trend that has persisted.
Initially the expected allowance prices were €25–35 for 2010, and €35–50 for 2020 but at the
112 D. Zhang, V. Karplus and C. Cassis, ‘Emissions Trading in China: Progress and Prospect’ (2014)
75 Energy Policy 9, at 10.
113 Date available at ICAP, Emissions Trading Worldwide.
114 P. Legrand, ‘What “Legal Transplants”?’ in D. Nelken and J. Feest (eds), Adapting Legal Cultures
(Oxford: Hart Publishing, 2001), 55–70, at 57–8.
115 Ibid., at 65. 116 Ibid.
117 On the point about lack of access to information, see Zeng, Weishaar, and Couwenberg, ‘Linking
the EU ETS’, at 770.
118 The EU ETS started operation in 2005 and the first carbon crash was reported in 2006, see
D. Ellerman and P. Joskow, The European Union’s Emissions Trading System in Perspective (Pew Center on
Global Climate Change, 2008), available at: https://www.c2es.org/docUploads/EU-ETS-In-Perspective-
Report.pdf.
start of the third trading phase (2013–20) the price was around €5—a mere fraction of the
preliminary estimates.119 This price is also below what many companies use as an implicit
price in taking investment decisions and what some government regulatory analysts have
used as an estimate of the social cost of carbon.120 This drift to low carbon pricing has led
many to regard the EU ETS as a failed mechanism.121
There are multiple reasons for this price volatility. Recession, financial crises, VAT fraud,
and complementary EU climate change policies, including the possibility of offsets as
part of the Clean Development Mechanism all played a role in pulling prices of emissions
allowances down.122 The main reason for the persistence in low prices, however, must be
attributed to the over-allocation of emissions allowances. Initially the Member States were
entrusted with determining the total national emission levels (in so-called national alloca-
tion plans, ‘NAPs’), which, when put together, formed the total cap of emission allowances
under the EU ETS. As each Member State oversupplied its national industries to grant a
competitive advantage, the carbon market was quickly flooded with emissions allowances,
carbon prices crashed, and interest in emissions trading dropped.123 To increase emission
allowance prices, the total number of allowances in circulation, which is assumed to be in a
surplus of almost two billon,124 needs reducing.125
Initially, the European Commission (Commission) opted to prevent a surplus of allow-
ances from building up by rejecting national allocation plans submitted by the Member
States. In particular, it emphasized the importance of an effective price, concluding that if
its powers to review NAPs were limited to the quality of the data therein, without includ-
ing the impact of NAPs on the market, oversupply of allowances would follow. This, the
Commission took to ‘completely undermin[e] the effects of the [EU ETS] Directive as a tool
to reduce emissions’.126
Although the then-General Court acknowledged that the EU ETS is of primary i mportance
in the EU’s fight against global warming, this alone did not allow the Commission to expand
its powers. More precisely, it concluded that: ‘in a community governed by the rule of law,
administrative measures must be adopted in compliance with the competences attributed
to various administrative bodies’.127 What this means is that even when a NAP adds an excess
of emission allowances and thereby contributes to a possible collapse of the emissions market,
119 E. Woerdman, The EU Greenhouse Gas Emissions Trading Scheme (Working Paper Series in Law
and Economics, May 2015), 24.
120 As explained in C. Hepburn and others, ‘The Economics of the EU ETS Market Stability Reserve’
(2016) 80 Journal of Environmental Economics and Management 1, at 1.
121 Ibid. Cf. European Commission, however, notes that all sectors covered by the EU ETS have
reduced their relevant emissions, see https://ec.europa.eu/clima/news/emissions-trading-emissions-
fall-2016_en.
122 N. Koch and others, ‘Causes of the EU ETS Price Drop: Recession, CD, Renewable Policies or a Bit
of Everything?—New Evidence’ (2014) 73 Energy Policy 676–85; Hepburn and others, ‘EU ETS Market
Stability Reserve’, at 1.
123 This is discussed in detail in Bogojević, ‘EU Climate Change Litigation’.
124 European Commission, European Carbon Market in 2012, at 5.
125 Hepburn and others, ‘EU ETS Market Stability Reserve’, at 1. Also the CJEU has held that the strin-
gency of the EU ETS is significant ‘as it reflects the intended benefit of the scheme for the environment’,
see C-127/07, Arcelor Atlantique et Lorraine and Others [2008] ECR I-09895, at para. 31.
126 Case T-263/07, Estonia v Commission [2009] ECR II-03395, at para. 42.
trading schemes 941
this does not justify any breach of the distribution of regulatory powers between the
Member States and the Commission, as defined in the Directive and ultimately the EU
Treaties.128 This view was upheld by the CJEU,129 clearly signalling that any type of price
control management under the EU ETS must be carried out within the ambit of the EU’s
constitutional powers.
Subsequently, when the Commission reported on the state of the European carbon mar-
ket in 2012, it made a strong call to tackle the growing ‘structural supply-demand imbalance’
found in the EU ETS but to do so in line with the prescribed legislative process of the
Treaties.130 Floor pricing is mentioned in this context but quickly disregarded on the basis that
it requires onerous governance arrangements to determine the level of the minimum price.131
Another reason for its omission is its close resemblance to a fiscal measure—taxation, to be
precise—which would require unanimous approval by all Member States in order to pass
into law.132 Two suggestions that the Commission did put forward are important to draw
attention to.
First, the Commission proposed to decrease the annual linear reduction factor of 1.74
per cent to 2.2 per cent, which would change the Union-wide quantity of allowances, or the
so-called cap.133 Although the Commission suspects this move to be too slow in incentivizing
changes in investments,134 these legislative proposals have since been passed into law.135
Second, and what is understood to be the ‘fundamental means’ of reducing the overall
number of emissions allowances is the introduction of a market stability reserve (MSR). In
short, such a reserve would control the carbon price by adjusting the annual auction vol-
umes through an emissions allowance reserve: if there is a significant surplus, it reduces the
available emissions allowances, and if these instead fall below certain predetermined levels,
it increases the auction volumes.136 The aim is to avoid that the EU carbon market will
operate with a large structural surplus of allowances,137 and to make the EU ETS ‘more
resilient in relation to supply-demand imbalances’, so as to enable the EU ETS to ‘function
in an orderly market’.138 What these legislative proposals and decisions show are at least two
important points.
First, the regulator enjoys broad powers not only in determining but also in revising the
total emission levels set for the EU ETS. Moreover, it has the competence to adjust such
128 Case T-183/07, Poland v Commission [2009] ECR II-03395, at para. 129.
129 Case C-505/09, Commission v Estonia [2012] nyr, at para. 80.
130 European Commission, European Carbon Market in 2012, at 7. 131 Ibid., at 10.
132 ICAP, Emissions Trading Worldwide, 10.
133 European Commission, European Carbon Market in 2012, at 7.
134 Article 4 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 emission trading scheme and amending Directive 2003/87/EC [2015] L264/1.
135 Directive (EU) 2018/410 of the European Parliament and of the Council of 14 March 2018 amending
Directive 2003/87/EC to enhance cost-effective emission reductions and low-carbon investments, and
Decision (EU) 2015/1814 [2018] OJ L 76.
136 Article 5 Decision (EU) 2015/1814.
137 Communication from the Commission, ‘Publication of the total number of allowances in circula-
tion for the purposes of the Market Stability Reserve under the EU Emissions Trading System established
by Directive 2003/87/EC, COM(2017) 3228 final.
138 Article 5 Decision (EU) 2015/1814.
levels according to its understanding of what price is too high or too low, through the MSR.
This particular market mechanism is thus heavily permissive of state interventions.
Second, the extent to which the state may intervene to control carbon prices through
either the specific cap or the MSR is under constant revision and thus may be further
expanded. For instance, the MSR Decision makes clear that where ‘the analysis indicates
that the range is no longer appropriate in the light of changes in market developments and
new information available at the time of the review, the Commission should swiftly submit
a proposal to address such a situation’.139 Indeed, reforming the EU ETS constitutes an
integral part of the work toward ‘achieving a resilient Energy Union’,140 and it has become
a core feature of the EU carbon market.141
Yet, such market management is not without limits. In fact, annulment actions against
the MSR decision have already been taken on grounds that in enacting it, the European
institutions have overstepped their regulatory competences.142 Competence-issues have
been central in EU ETS litigation, which is also evidenced by the many cases brought
against the Commission in determining NAPs.143 What this shows is that the EU assumes
broad regulatory discretion in revising trading rules so as to stabilize and control emissions
prices yet such exercise is constrained by the rule of law and the specific competences
entrusted to the EU in this regard.
41.5.3 Chinese Pilot Emission Trading Schemes

Similarly to the EU ETS, carbon prices in the Chinese pilot trading schemes have been
turbulent. The Shanghai market, together with the remaining pilot schemes, reported ‘fresh
depths’144 in 2016, and a year later, price instability remained a worrying issue.145 There are
many reasons for this. One is that most of the pilot schemes failed to initially impose a fixed
cap on the relevant emissions.146 This meant that the trading schemes were driven mainly by
voluntary commitments, which in this case resulted in weak domestic demand.147 Oversupply
of emission allowances is yet another. In the same way as initially in the EU ETS, emissions
139 Ibid., Art. 10.

140 European Commission, Report on the functioning of the European carbon market, COM (2017)
48 final at 3.
141 See e.g. S. Bogojević, ‘The EU ETS Directive Revised: Yet Another Stepping Stone’ (2009) 11
142 Poland raises several arguments, including that the contested decision constrains choice of energy
choice and energy supply and as such needs to be enacted based on Art. 192(2)(c) TFEU and thus be
adopted by the Council unanimously in a special legislative procedure, which, however, the EU court
rejects, see Case C-5/16 Poland v European Parliament and Council, ECLI:EU:C:2018:483.
143 Bogojević, ‘EU Climate Change Litigation’, at 184.
144 ‘CN Markets: Shanghai CO2 price finds fresh depths as China’s pilot markets face difficult year’,
Carbon Pulse (7 March 2016), available at: http://carbon-pulse.com/16664/.
145 ‘CN Markets: Pilot market data for week ending June 30, 2017’, Carbon Pulse (30 June 2017), available
at: https://carbon-pulse.com/36657/.
146 The reason was that China is not subject to legally binding emission targets under the Kyoto
Protocol and so does need to comply with any targets, see Lo, ‘Challenges to the Development of Carbon
Markets in China’, at 116.
147 Lo, ‘Challenges to the Development of Carbon Markets in China’.
trading schemes 943
allowances in all eight pilot schemes are mainly allocated for free based on historic emission
intensity or benchmarking.148 The surplus of emissions allowances has been an additional
worry in the wake of launching a national Chinese ETS in 2017, where a crucial issue for
market actors is whether excess permits from the individual scheme would be eligible for
use in the national carbon market.149 Moreover, the fact that the economy is ‘sluggish’150
is also understood to have driven the prices for emissions allowances down.
Each of the eight trading schemes offers a different alternative for state intervention to
this price instability. What is especially noteworthy is that the various trading schemes
allow different thresholds to determine when to intervene. In the case of the Beijing
carbon market, extra allowances are auctioned if a certain average price is exceeded for
ten consecutive days, or purchased back if the price falls under a predetermined level.151
Here the state not only controls price by emerging as a market actor with emission allow-
ances to either sell or buy, it also safeguards that certain minimum and maximum price
levels are kept.
Similar price stabilization measures are found in the Hubei pilot scheme where the local
authorities may use 8 per cent of the total cap to either sell or buy emission allowances
depending on whether the price is rocketing or diving.152 In the Chongqing pilot scheme
this approach is layered with allowing the local authorities to cap the percentage of received
emission allowances that can be sold.153 This is to constrain price volatility at the outset.
The Shenzhen pilot scheme uses a variation of the above by holding a reserve of up to one
tenth of the total cap to sell emissions allowances at a fixed price for compliance that are not
tradable.154 The fact that these emissions are for compliance only suggests that the rationale
of the price control is to help the relevant industries comply with this environmental law, as
opposed to reducing their emissions so that they can sell their allowances and make a profit.
This approach is mimicked in the Tianjin emissions trading scheme but without imposing
any cap on emissions earmarked as non-tradable.
Other pilot schemes have opted for different solutions. The Guangdong carbon market,
for example, has an auction floor price set in relation to an earlier average price for emis-
sions allowances.155 In Shanghai, in contrast to all the above, the Environment and Energy
Exchange can suspend trade altogether, or impose holding limits as a way of controlling
prices.156 Considering that this allows the state to freeze the carbon market, the pilot scheme
in Shanghai seems to allow the most intrusive price control measures out of all pilot trading
schemes outlined.
It is important to note that these remarks are merely preliminary and require further
detailed legal investigation. What they nevertheless highlight are at least two important
points. First, the state is heavily present in the management of the Chinese pilot carbon
148 ICAP, Emissions Trading Worldwide, at 58–69.

149 In fact, some pilot trading schemes, including the Shanghai carbon market, will continue operating
beyond its initial compliance period and also once the national trading scheme has started, see ICAP,
Emissions Trading Worldwide, at 65.
150 ‘Shanghai CO2 price finds fresh depths, Carbon Pulse.
151 ICAP, Emissions Trading Worldwide, at 58. 152 Ibid., at 64.
153 Or more precisely, the Fujian Economic and Information centre under the guidance of the Fujian
Development and Reform Commission and in consultation with an advisory committee, as explained in
ICAP, Emissions Trading Worldwide, at 61.
markets. Considering China’s single-party regime, this may not be a surprise. However, and
following from this, state interventions, as shown above, take different forms and inevitably
offer the state diverse roles in controlling prices. In other words, state-market relationships
in this context are dynamic.
In fact, to generically refer to ‘the state’ here is an oversimplification, as the pilot trading
schemes operate within a multileveled domestic governance structure. For instance, the
National Development and Reform Commission (NDRC), China’s top economic plan-
ning agency, authorized the pilots to experiment with emission trading and announced
plans to implement a pan-national ETS.157 In the absence of national legislation, several
local Development and Reform Commissions were entrusted with the task of formulat-
ing carbon trading legislation.158 The extent to which NDRC may exercise its central
powers to overrun the pilot schemes in setting up the national carbon market, however,
is currently unclear.
The central and local governments in China have a long tradition of tension in their
relationship.159 Introducing market mechanisms as part of domestic environmental law,
however, is part of a wide-reaching reform in China that spans several decades and that
has introduced financial, fiscal and administrative reforms.160 Although the NDRC, for
instance, has deregulated its pricing monopoly in the electricity market as part of the 2015
deregulation reform of electricity prices, Anatole Boute warns that future state interventions
should not be ruled out.161
In writing about China’s dramatic economic and political transformation these past
thirty years, Ronald Coase and Ning Wang explain that throughout all reforms, ‘the Chinese
government remained committed to socialism’.162 The consequence of this is that any form
of deregulation will be part of ‘the Chinese style of capitalism’.163 This is a crucial point that
is relevant to this study in two regards. First, it underlines that markets are not mere economic
transactions but they are also part of a political and cultural environment.164 In the case of
emissions trading, this means that their design, including rules on price control, will inevit-
ably be culture-specific and so useless to project as possible global prototypes.
Second, and related to the previous point, a strong case is made for the multiplicity of
market-constructs and their host environments. Here it is useful to point out that it is com-
monly held that carbon markets function only in a liberal capitalist system165 where the
state relinquishes most of its powers to influence the market. Alex Lo, for example, argues
that ‘the success of China’s carbon market reform crucially depends on the ability of the new
[ETS] institutions to transform the distorted state-market relationship’.166 Michael Callon,
however, explains that:
157 Environmental governance in China as explained in Y. C. Chang and N. Wang, ‘Environmental

Regulation and Emissions Trading in China’ (2010) 38 Energy Policy 3356.
158 Zeng, Weishaar, and Couwenberg, ‘Linking the EU ETS’, at 768.
159 R. Coase and N. Wang, How China Became Capitalist (NYC: Palgrave Macmillan, 2013), 79.
160 Ibid. 161 Boute and Zhang, ‘The Role of the Market’, at 18.
162 Coase and Wang, How China Became Capitalist, at 200. 163 Ibid.
164 M. Abolafia, ‘Separate Spheres? The Cultural Contradictions of Markets’ (2014) 62 Studies in Law,
Politics, and Society 265.
165 Cf. Boute and Zhang, ‘The Role of the Market’.
166 Lo, ‘Challenges to the Development of Carbon Markets in China’, at 109.
trading schemes 945
before the fall of the Berlin Wall, you had market economies, on the one hand, and bureau-
cratically planned economies, on the other hand. But now I think we are freed of these
dichotomies and of this opposition . . . So if you take the debates about intellectual property,
about GMOs, about health questions, food safety and so on, in all these debates the main
question now is how to organize markets.167
Essentially Callon’s argument is that the idea of private versus public governance is an
outdated dichotomy. Market mechanisms clearly exist in Chinese versions of capitalism.
The question that requires our attention is thus not whether trading scheme can be replicated
elsewhere but rather how markets are managed in their specific legal contexts.
41.6 Emissions Trading Schemes,

Typologies, and Comparative
Environmental Law
What the case studies above show, their brevity notwithstanding, is that state-market rela-
tionships vary across legal cultures and times. In the EU context, the regulatory institutions
enjoy increasingly broad discretionary powers in exercising price control, from determining
the cap to creating market reserves through which to stabilize violent market fluctuations.
Such discretion, however, is subject to legal restraints; the rule of law. In the case of China’s
pilot trading schemes, the decentralized approach to the management of carbon markets
has led to the emergence of a range of diverse market structures. Yet market reform under
socialism has been described as a ‘Bird in the Cage’;168 the cage may be continuously adjusted
to the size of the bird, but the animal nevertheless remains confined. What this means is that
the central government, irrespective of deregulatory initiatives, retains extensive powers to
create and manage emissions trading schemes. What the case studies therefore depict are
markets not simply dictated by the laws of ‘capitalism, competitiveness and efficiency’169
but also restrained by law and ideology.
These market-state relationships are not static. As described above, rules on price control
and emissions trading more broadly are subject to constant revision under the leitmotif of
‘learning-by-doing’. This approach is especially prevalent in the case of the EU ETS. It is
framed by the Commission as a regulatory concept in flux,170 and scholars similarly describe
it as in vivo an ‘experiment’171 stipulated to change in line with regulatory experiences
obtained172—a description on which the CJEU also agrees.173 This may be seen as forming
167 Barry and Slater, ‘Interview with Michel Callon’, at 290. 168 Ibid., at 74.
169 Similarly argued in F. de Witte, ‘The Arhitecture of a ‘Social Market Economy’’ (LSE Law, Society
and Economy Working Papers 13/2015), 4.
170 Commission of the European Communities, Green Paper on Greenhouse Gas Emissions Trading
Within the European Union, COM(2000) 87 final.
171 MacKenzie, Material Markets, at 166.
172 M. Peeters and S. Weishaar, ‘Exploring Uncertainties in the EU ETS: ‘Learning by Doing’ Continues
Beyond 2012’ (2009) 1 Carbon & Climate Law Review 88; Bogojević, ‘The EU ETS Directive Revised’.
173 Here, the CJEU judged that in line with a ‘step-by-step approach’ based ‘in particular on the
experience gained’, the Union legislature is justified during the first stage of the implementation of the
part of an emerging governance structure in the EU—that of ‘experimentalist governance’.174

On this point von Homeyer explains how traditional EU environmental policy instru-
ments were deemed to be inefficient and too expensive, and how against this background,
‘new instruments’ were adopted, including emissions trading, to remedy such issues.175
Experimentation, he argues, became an integral part of such ‘new instruments’, leaving
room for variation and tests of different regulatory approaches with the objective of eventu-
ally finding an effective approach to environmental regulation.176 Taking this explanation
further, the application of trading schemes may be seen as demanding from the regulators to
‘engage in a continuous process of learning’,177—to realize that ‘continuous learning is crucial
to the success of the regulation’.178 From this point of view, the construction and implemen-
tation of trading schemes cannot be prescribed but only arrived at through e xperience.
This learning-by-doing attitude, however, is not limited to the EU. Viewing emissions
trading as ‘experimental projects’179 has allowed China to test a variety of different trading
schemes upon which a national one will be based.180 Moreover, Christopher Arup and Hao
Zhang explain how this approach has, in fact, become a global trend:
Especially when creating new markets, regulation is likely to be exploratory and experimental.
The interplay of technological, economic, political and social variables means that regulation
will have to be negotiated and adjusted181
The result of this is two-fold. First, it shows that viewing emissions trading schemes as a
fixed design-structure is a pointless exercise considering that they are constantly amended
and revised in light of a range of factors, including economic, political, social, and also legal.182
Second, and subsequently, it highlights the challenges involved in conducting research
in this high-paced area of law: it constantly changes.183 In fact, by the time this chapter
is published, many of the rules on price control discussed will probably have been replaced
by new ones.
emissions trading scheme to design the EU ETS with possible discriminatory effects, see Case C-127/07
Arcelor Atlantique, at para. 61.
174 C. Sabel and J. Zeitlin (eds.), Experimentalist Governance in the European Union: Towards a New
Arhitecture (Oxford: Oxford University, Press, 2012).
175 I. von Homeyer, ‘Emerging Experimentalism in EU Environmental Governance’ in ibid., at
121–50, 129.
176 Ibid., at 130.
177 C. Arup and H. Zhang, ‘Lessons from Regulating Carbon Offset Markets’ (2015) 4 Transnational
178 C. Scott, ‘Reflexive Governance, Regulation and Meta-Regulation: Control or Learning?’ in O. de
Schutter and J. Lenoble (eds.), Reflexive Governance: Redefining the Public Interest in a Pluralistic World
(Oxford: Hart Publishing, 2010), 43–66, at 43.
179 Chang and Wang, ‘Emissions Trading in China’, at 3362.
180 ICAP, Emissions Trading Worldwide, 11.
181 Arup and Zhang, ‘Lessons from Regulating Carbon Offset Markets’, at 71.
182 See e.g. Bogojević, ‘The EU ETS Directive Revised’.
183 J. Lefevere, ‘A Climate of Change: An Analysis of Progress in EU and International Climate Change
Policy’ in J. Scott (ed.), Environmental Protection: European Law and Governance (Oxford: Oxford University
Press, 2009), 171–211, at 171.
trading schemes 947
What this means is that the question that needs to guide studies on market mechanisms,
and in this context emissions trading schemes, should not only concern the state of the
law but also consider a wide range of factors that may lie behind legal changes that occur,
including carbon pricing. This way, the rationale for the specific market organization can
be gained and so the organization of emissions trading better understood. The value and
relevance for comparative law in this regard is to provide a coherent paradigm for investi-
gation that allows environmental lawyers to consider legal experience in other jurisdiction
beyond the legal texts.
41.7 Conclusion
What this chapter shows is that market mechanisms are broad regulatory concepts that
are constantly evolving. By focusing on emissions trading and price control, this chapter
illustrates that such management is entangled in legal complexities of how to allocate
power between the market and the state. To understand this dilemma, it is of limited use
to strive to imagine an ideal structure of emissions trading schemes; rather, attention
needs to be directed to how the state interacts with the market, or rather, how the two
are co-produced.
Ultimately, this analysis shows that regulation is ‘a moving target’ but not only in the
conventional sense where it is seen to move from traditional command-type regimes to
flexible regulatory structures.184 It also encompasses reflective, or so-called, learning-by-
doing approaches where learning is an essentially component in rethinking how markets
are used in environmental law. Comparative law has an important role to play in providing
a useful framework of analysis for such creative exercises. Comparative law has an important
role to play in providing a useful framework for such creative exercises.
Thanks are due to Ragnar Söderberg Foundation and Vetenskapsrådet for research funding and Max
Hjärtström for research assistance.

Bogojević, S., Emissions Trading Schemes: Markets, States and Law (Oxford: Hart Publishing, 2013).
Boute, A., ‘The Impossible Transplant of the EU Emissions Trading Schemes: The Challenge of Energy
Market Regulation’ (2017) 6 TEL 59.
Coase, R. and N. Wang, How China Became Capitalist (Hampshire/New York: Palgrave Macmillian,
2013).
Fisher, E. and others, ‘Maturity and Methodology: Starting a Debate about Environmental Law
Scholarship’ (2009) 21 Journal of Environmental Law 213.
184 R. Baldwin, M. Cave, and M. Lodge, ‘Introduction: Regulation—The Field and the Developing
Agenda’ in Baldwin, Cave, and Lodge (eds.), The Oxford Handbook of Regulation, at 3–16, 5.
Lange, B., ‘Regulating Economic Activity Through Performative Discourses: A Case Study of the
EU Carbon Market’ in B. Lange, F. Haines, and D. Thomas (eds.), Regulatory Transformations:
Rethinking Economy-Society Interactions (Oxford: Hart Publishing 2015), 151–80.
Malloy, R. P., Law in a Market Context: An Introduction to Market Concepts in Legal Reasoning
Mcmillan, J., Reinventing the Bazaar: A Natural History of Markets (NYC: W.W. Norton & Company,
2003).
Morgera, E., ‘Global Environmental Law and Comparative Legal Methods’ (2015) 24 Review of
European, Comparative & International Environmental Law 254.
Penca, J., ‘Marketing the Market: The Ideology of Market Mechanisms for Biodiversity Conservation’
(2013) 2 TEL 235.
I N FOR M AT IONA L
T E C H N IQU E S
chapter 42
A Ca rtogr a ph y
Education
Amy Cutter-Mackenzie-Knowles, Marianne
Logan, Ferdousi Khatun, and Karen Malone
42.1 Overview: Politicizing Environmental Education 952

42.2 Environmental Education and Sustainable Development:
A Neoliberal Relationship 956
42.3 A Cartography of Environmental Education Policies 958
42.3.1 Approaches Across Countries 958
42.3.2 Environmental Education in Australia 960
42.3.2.1 Background 960
42.3.2.2 A Cartography of Environmental Education
in Australia 963
42.3.2.3 Climate Change + Me 964
42.3.3 Environmental Education in Bangladesh 965
42.3.3.1 The State of the Environment 965
42.3.3.2 Environmental Policy 965
42.3.3.3 Bangladesh Education Systems and
Environmental Education 967
42.3.3.4 Rose’s Story 969
42.5 Acknowledgement 970
952 cutter-mackenzie-knowles et al.
42.1 Overview: Politicizing

Environmental Education
There was a large clearing in the forest, a large open area from which many footpaths
led off in many directions. The people were disputatious. Some argued the merits of
taking one footpath, some the merits of taking another, and yet others the merits
of taking a third. They milled around in confused and contentious mood. Then they
discovered what looked like a broad form and easy path that all might take, where
all kinds of folk could walk together shoulder to shoulder. Many hurried towards it,
relieved that their arguments could be brought to an end. In a sigh of collective
relief, few were disposed to enquire whether the path was really heading in the right
direction and whether the undemanding way it seemed to offer might discourage
the further seeking and exploration of alternative pathways. Even fewer bothered
to ask whether going down the path would really be good for the forest and its
inhabitants.1
We have entered the Anthropocene epoch where most scientists recognize that human
activities are significantly impacting the world’s ecosystems.2 In that regard, it would be
difficult to identify a time in human history where environmental education could be
considered more pressing. However, the field of environmental education is highly political
where often there is more disagreement than agreement. A dominant voice in the politicizing
of environmental education is the United National Educational, Scientific and Cultural
Organisation (UNESCO).3 There is no doubt that UNESCO has instituted and facilitated
numerous landmark initiatives (see Table 1), albeit with a politically charged and somewhat
Western minority agenda.
Historically, environmental education was perceived as a study of the environment or
nature, cognizant with ecology. The term ‘environmental education’ was recognized during
the 1960s following the seminal works of Rachel Carson.4 There have been numerous claims
that it was not until the 1972 United Nations Conference on the Human Environment car-
ried out in Stockholm that the term was recognized and accepted internationally.5 It was the
passing of Recommendation 96 that called ‘for the development of environmental educa-
tion as one of the most critical elements of an all-out attack on the world’s environmental
crisis’.6 Recommendation 96 stated that UNESCO and Member States:
1 D. Selby, ‘The Firm and Shaky Ground of Education for Sustainable Development’ in B. Chalkley,
M. Haigh, and D. Higgitt (eds.), Education for Sustainable Development: Paper in Honour of the United
Nations Decade of Education for Sustainable Development (2005–2014) (New York: Routledge, 2009),
199–213, at 199–200.
2 P. Crutzen and H. Brauch (eds.), A Pioneer on Atmospheric Chemistry and Climate Change in the
Anthropocene Springer Briefs on Pioneers in Science and Practice (Netherlands: Springer, 2016).
3 Chalkley, Haigh, and Higgitt (eds.), Education for Sustainable Development.
4 R. Carson, Silent Spring (Canada: Penguin Books and Hamish Hamilton, 1965); R. Carson, The
Sense of Wonder (New York: HarperCollins Publishers, 1969).
5 P. Fensham, ‘Stockholm to Tbilisi—The Evolution of Environmental Education’ (1978) 8(4) Prospects
446–55.
6 UNESCO-UNEP, ‘The Belgrade Charter (1976)’ 1(1) Connect 1–9. 2.
a cartography of environmental education 953
Table 1 Timeline of significant environmental education initiatives

Year Event Development
1972 The United Nations Conference on the Human The International Environmental
Environment, Stockholm, Sweden Education Program (IEEP) (1975)
1975 United Nations Belgrade Workshop The Belgrade Charter Statement
1977 The UNESCO Intergovernmental Conference on ‘Tbilisi Declaration’
Environmental Education, Tbilisi, the former USSR
1980 The International Union of Conservation of Nature (IUCN), Natural Resources, the United
Nations Environment Programme and World Conservation Foundation ‘World Conservation
Strategy’ (1980)
1988 Our Common Future (World Commission on Environment and Development, 1987)
1992 The United Nations Conference on Environment ‘Agenda 21’
and Development, Rio de Janeiro, Brazil
1997 The United Nations International Conference on ‘Thessaloniki Declaration’
Environment and Society, Thessaloniki, Greece
2002 World Summit on Sustainable Development, ‘Plan of Implementation’ and the
Johannesburg, South Africa ‘Key Outcomes’ Statement (Unit Nations
Decade for Education for Sustainable
Development 2005–14)
2009 UNESCO World Conference on Education for Bonn Declaration
Sustainable Development
2012 United Nations Conference on Sustainable The Future We Want
Development, Rio De Janeiro, Brazil
2014 UNESCO World Conference on Education for UNESCO Roadmap for Implementing the
Sustainable Development, Okayama, Japan Global Action Programme on Education
for Sustainable Development
2015 70th Session of the United Nations General UNESCO Sustainable Development Goals
Assembly
2015 United Nations, New York, United States Transforming Our World: The 2030
Agenda for Sustainable Development
2015 2015 United Nations Climate Change United Nations Framework Convention
Conference, Paris, France on Climate Change
2016 World Education Forum, Incheon, Republic of Education 2030: Incheon Declaration
Korea, Beyond 2015: The Education We Want and Framework for Action for the
implementation of Sustainable
Development Goal 4 (UNESCO, 2016)
2017 UNESCO, Paris, France Education Transforms Lives (UNESCO,
2017)
should after consultation and agreement take the necessary steps to establish an international
programme in environmental education (IEEP), interdisciplinary in approach, in school and
out of school, encompassing all levels of education and directed towards the general public’7
As a result of these recommendations, various charters, declarations, and policy documents

have been developed, including the Belgrade Charter (1976) and the Tbilisi Declaration
(1977). In 1977, the Tbilisi Declaration presented the key aims of environmental education as:
1. to foster clear awareness of, and concern about, economic, social, political and ecological
interdependence in urban and rural areas;
2. to provide every person with opportunities to acquire the knowledge, values, attitudes,
commitment and skills needed to protect and improve the environment; and
3. to create new patterns of behaviour of individuals, groups and society as a whole towards
the environment.8
A definition for environmental education was also developed at the Tbilisi Conference.
It stated:
Environmental education, properly understood, should constitute a comprehensive lifelong

education, one responsive to changes in a rapidly changing world. It should prepare the indi-
vidual for life through 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 with due regard given to ethical values.9
The Tbilisi declaration is often portrayed as a pseudo-biblical document in the broad field of
environmental education.10 While it is most certainly a foundational statement, it also repre-
sents the beginning of a highly political and intergovernmental agenda.11 It was the Stockholm-
Belgrade-Tbilisi phase which initially provided the impetus to work towards environmental
solutions through the means of environmental education. Although these international
conferences and meetings heightened environmental education as a major contributor in
unravelling environmental problems, scant attention was directed towards the environment
per se.12 The latter trend continued with the development of the World Conservation Strategy,13
7 UNESCO, The International Workshop on Environmental Education, Stockholm, October, 1972

The Final Report (Paris: UNESCO, 1972). Quoted in D. Tilbury, ‘The International Development of
Environmental Education: A Basis For A Teacher Education Model?’ (1994) 13(1) The International
Journal of Environmental Education and Information 1–20, at 3.
8 UNESCO-UNEP, ‘The Tbilisi Declaration (1978)’ 3(1) Connect 1, at 1–8.
9 Tilbury, ‘The International Development of Environmental Education’, at 8.
10 A. Cutter-Mackenzie, ‘Teaching for Environmental Sustainability’ in R. Gilbert and B. Hooeper
(eds.), Teaching Society and Environment (Melbourne: Cengage, 2010), 348–63.
11 A. Gough, Education and the Environment: Policy Trends and the Problems of Marginalisation
(Melbourne: The Australian Council for Educational Research Ltd., 1997).
12 Ibid.
13 International Union for the Conservation of Nature., N. R. The United Nations Environment
Programme, & World Conservation Foundation, 1980, World Conservation Strategy: Living Resource
Conservation for Sustainable Development (Gland, Switzerland: International Union for the Conservation
of Nature and Natural Resources, 1980).
Our Common Future,14 the Earth Summit,15 the Thessaloniki Declaration,16 United Nations
Decade for Education for Sustainable Development (2005–14), the Bonn Declaration (2009),
the UNESCO Roadmap for Implementing the Global Action Programme on Education for
ESD (2014), and the Sustainable Development Goals (2015). All of these initiatives specifically
emphasize ‘sustainable development’ as the most appropriate response for future environ-
mental, social and economic development. By way of example Suzuki describes the move-
ment from Stockholm to the Earth Summit:
In the two decades between Stockholm and Rio, new names became a part of our lexicon—
Bhopal, Exxon Valdez, Chernobyl—while a host of issues made the news: chemicals spilled
into the Rhine Basel, poisoned Beluga whales in the Golf of St. Lawrence, the burning of
rainforest of the Amazon, unswimmable beaches, record hot summers, the Arab oil embargo,
Ethiopia, and the Gulf War. During the 1980s, poll after poll revealed that the environment
was at the top of peoples’ concerns. In 1987, the Brundtland Commission report, Our
Common Future, documented in painstaking detail the perilous state of the Earth and popu-
larized the phrase that has become the rallying cry of politicians and businesspeople alike—
sustainable development.17
Since the late 1980s the concept of sustainable development has infiltrated the field of
environmental education. In December of 1997, eighty-one countries were represented at
the UNESCO Thessaloniki conference which was said to celebrate the twentieth anniversary
of the Tbilisi conference and ‘to reorient to education for sustainability (EFS) for the
21st century’.18 However, this conference was considered by some as ‘the beginning of the
end for environmental education’.19 Knapp states that ‘only two out of the twenty-nine state-
ments outlined in the declaration was environmental education mentioned’.20 And one of
those statements suggested that ‘environmental education be referred to as education for
sustainability in the 21st century’.21 Knapp alleged that environmental education was ‘being
swallowed by another more fashionable approach—education for environment and
sustainability’.22 He argued that this modification changed the very nature of environmental
education. He concluded:
The basis and spirit of environmental education was begun at Tbilisi. We should defend its
true intent to the world and prohibit its extinction through documents such as the Thessaloniki
Declaration. It is our responsibility to see that this crucial educational process be a mainstay
of society and guidepost to the responsible stewardship of our planet.23
14 World Commission on Environment and Development, Our Common Future (Oxford: Oxford
15 UNESCO-UNEP. UNCED, ‘The Earth Summit’ (1992) 17(2) Connect 1–8.
16 UNESCO, Declaration of Thessaloniki (UNESCO, 1997), available at: http://www.unesco.org/iau/
tfsd_thessaloniki.html.
17 D. Suzuki, Time to Change (Canada: Allen & Unwin Pty Ltd., 1993) 5.
18 D. Knapp, ‘The Thessaloniki Declaration: A Wake-up Call for Environmental Education?’ (2000)
31(3) The Journal of Environmental Education 32–40, at 32.
19 Ibid. 20 Ibid. 21 UNESCO, Declaration of Thessaloniki, 1997, 20.
22 Knapp, ‘The Thessaloniki Declaration’, at 32. 23 Ibid., at 37.
Notwithstanding Knapp’s24 view, there has been overwhelming and often unquestionable
support for both the concept of sustainable development and the change in name to ‘edu-
cation for sustainable development’.25 Malone and Somerville argue that education for
sustainable development has the potential to be more wide ranging in its ‘intent and cur-
riculum scope’ than ‘environmental education’ and ‘education for sustainability’.26 However,
like Knapp,27 there are other works which see this change as highly problematic for
environmental education.28
The notion of ‘education for sustainable development’ has enjoyed colossal momentum
and adherence.29 In 2004 UNESCO declared 2005–14 as the decade for Education for
Sustainable Development. And in the documents coming out of the decade and consequent
declarations, including the Bonn Declaration, UNESCO’s Roadmap to Sustainable
Development (2014), and the now the Sustainable Development Goals (2015), environment
and environmental education has no presence as a concept.
42.2 Environmental Education

and Sustainable Development:
A Neoliberal Relationship
So as to fully appreciate sustainability in the context of education it is important to consider

its history. In 1980 the International Union for Conservation of Nature (IUCN), Natural
Resources, the United Nations Environment Programme, and World Conservation
Foundation officially introduced the term ‘sustainable development’ as a catch-all idea in
the ‘World Conservation Strategy’ (WCS).30 Seven years later, Our Common Future,31 also
24 Ibid.
25 J. Fien and D. Tilbury, Learning For A Sustainable Environment: An Agenda For Teacher Education
in Asia and the Pacific (Bangkok: UNESCO, 1996); J. Fien and T. Trainer, ‘Education for Sustainability’ in
J. Fien (ed.), In Environmental Education: A Pathway to Sustainability (Geelong: Deakin University,
1993b); J. Huckle, ‘Education for Sustainability: Assessing Pathways to the Future’ (1991) 7 Australian
Journal of Environmental Education 43–62; H. Kopnina, ‘Education for Sustainable Development (ESD):
The Turn Away from “Environment” in Environmental Education?’ (2012) 18(5) Environmental Education
Research 699–717.
26 K. Malone and M. Somerville, Education for Sustainable Development Report 2015 Contribution of
ESD to Quality Education in Australian Schools (Sydney: Western Sydney University, 2015), 5.
27 Knapp, ‘The Thessaloniki Declaration’.
28 J. Ferreira, ‘Unsettling Orthodoxies: Education for the Environment/for Sustainability’ (2009) 15(5)
Environmental Education Research 607–20; B. Jickling, ‘Why I Don’t Want My Children to be Educated
for Sustainable Development’ (1992) 23(4) Journal of Environmental Education 5–8; B. Jickling,
‘Environmental Thought, the Language of Sustainability, and Digital Watches’ (2001) 7(2) Environmental
Education Research 167–80; B. Jickling and H. Spork, ‘Education for the Environment: A Critique’ (1998)
4(3) Environmental Education Research 309–27; B. Jickling and A. Wals, ‘Globalization and Environmental
Education: Looking Beyond Sustainable Development’ (2007) 40(1) Journal of Curriculum Studies 1–21;
M. McKenzie and others, Fields of Green: Restorying Culture, Environment, and Education (Cresskill,
New York: Hampton Press, 2008).
29 Selby, ‘The Firm and Shaky Ground of Education for Sustainable Development’.
30 International Union for the Conservation of Nature, World Conservation Strategy, at iv.
31 World Commission on Environment and Development, Our Common Future.
known as the Brundtland Report, further examined the types of issues raised in the World
Conservation Strategy. In particular, the key concept of Our Common Future was the advo-
cacy of sustainable development, which was defined as ‘development which meets the needs
of the present without compromising the ability of future generations to meet their needs’.32
Of particular importance and more recently, the United Nations developed seventeen
Sustainable Development Goals with Goal 4 explicitly focused on education. Within this
goal, goal 4.7 states:
By 2030, ensure that all learners acquire the knowledge and skills needed to promote sustain-
able development, including, among others, through education for sustainable development
and sustainable lifestyles, human rights, gender equality, promotion of a culture of peace and
non-violence, global citizenship and appreciation of cultural diversity and of culture’s contri-
bution to sustainable development.33
As with any theory which seeks legitimacy in the political arena, there are those who
oppose the fundamental concepts which underpin sustainable development.34 Perhaps
the most enduring criticism of sustainable development has been that even its advocates
have ‘not yet been able to identify sufficient criteria to elucidate common meaning and
coherence’ for the phrase.35 While there are thousands and possibly millions of definitions
for sustainable development, there have been two broad views presented, namely ‘techno-
centric [anthropocentric] sustainability’ and ‘ecological [ecocentric] sustainability’. Both
views are locked in a struggle for supremacy and are symbolic of broader environmental
worldviews. These two competing theories are defined as:
Technological (technocentric or anthropocentric) sustainability maintains the view that

advances in technology and market forces will resolve ecological and social crises; and
Ecological (ecocentric or non-anthropocentric) sustainability promotes a radical and trans-
formative world-view where ecological considerations set the parameters of acceptable
human endeavour.36
O’Riordan argues that this dichotomy represents:
the clash of two world views . . . between those who believe that the earth is capable of being
improved or manipulated for the benefit both of human kind as well as for life on earth itself,
32 Ibid., at 8.
33 United Nations. Transforming our World: the 2030 Agenda for Sustainable Development (United
Nations, 2015), available at: https://sustainabledevelopment.un.org.
34 A. Blowers, ‘Environmental Planning for Sustainable Development’ in A. Blowers and B. Evans
(eds.), Town Planning into the 21st Century, (London: Routledge, 1997); M. Diesendorf, Models of
Sustainability and Sustainable Development (Paper presented at the National Conference for Sustainability,
Sydney: 1999); M. Jacobs, The Green Economy (London: Pluto Press, 1991); M. Redclift, Sustainable
Development: Exploring the Contradictions (London: Routledge, 1989).
35 See B. Jickling, ‘Why I Don’t Want My children to Be Educated for Sustainable Development’(1994)
11(3) Trumpeter 114–16, at 115.
36 See ibid.; D. Orr, Ecological Literacy: Education and the Transition to a Postmodern World (Albany:
State University of New York, 1992); J. Rossen, ‘Conceptual Analysis in Environmental Education: Why
I want My Children To Be Educated For Sustainable Development?’ (1995) 11 Australian Journal of
Environmental Education 73–81.
and those who believe that human beings should at best be only equal with other forms of life
on the planet and that societies must learn to adjust their economics and aspirations so as to
cohabit with the imperatives of earth and life processes for the survivability, or sustainability,
of the earth.37
Many researchers have argued that environmental education is beleaguered by an

anthropocentric or technocentric philosophical orientation owing to its capitalist neoliberal
Western (minority) foundations.38 More recently, Hursh, Henderson, and Greenwood
maintain that neoliberalism has ‘become the dominant social imaginary’39 in environ-
mental education promoting continued economic growth and hyper-individualism. As such,
transcending neoliberal forms of thinking and alternative social (and ecological) imaginaries
has become an important focus in environmental education. In this regard, pedagogy,
whether it is in the formal or informal sector, is highly significant. We now present a brief
overview of the pedagogical landscape in environmental education before turning to
examples of environmental education and the institutional frameworks in which such
modes of environmental education have tended to operate.
42.3 A Cartography of Environmental

Education Policies
42.3.1 Approaches Across Countries

In 2005 Sauvé40 described and mapped the complex and evolving perspectives and
pedagogies within the field of environmental education as ‘currents’ which she considered
as a ‘general way of envisioning and practicing environmental education’. In Sauvé’s cartog-
raphy of the field, she identified fifteen currents altogether some with a long tradition in the
field of environmental education, and others more recent (Table 2). It is important to note
that sustainability in a broader ‘environmental education’ sense is considered one of fifteen
currents and is a current that is intergrated most widely in school policy, practice, and
37 T. O’Riordan, ‘On the “Greening” of Major Projects’ (1990) 156 (2) The Geographical Journal 141–8,
at 143.
38 See C. Bowers, The Culture of Denial: Why the Environmental Movement Needs a Strategy
for Reforming Universities and Public Schools (Albany: State University of New York Press, 1997);
T. O’Riordan, ‘Environmental Ideologies’ (1977) 9(1) Environment and Planning 3–14; Orr, Ecological
Literacy; A. Weston, Back to Earth: Tomorrow’s Environmentalism (Philadelphia: Temple University Press,
1994); A. Weston, ‘Deschooling Environmental Education’ (1996) 1 Canadian Journal of Environmental
Education 35–46, at 299; A. Weston, An Invitation to Environmental Philosophy (New York: Oxford University
Press, 1999); L. White, ‘The Historical Roots of Our Ecological Crisis’ (1967) 155 (3767) Science 1203–7.
39 D. Hursh, J. Henderson, and D. Greenwood, ‘Environmental Education in a Neoliberal Climate’
(2015) 21(3) Environmental Education Research 299–318, at 1.
40 L. Sauvé, ‘Currents in Environmental Education: Mapping a Complex and Evolving Pedagogical
Field’ (2005) 10(1) Canadian Journal of Environmental Education 11–37, at 11.
Table 2 Currents in environmental education41

Currents with a longer tradition Currents more recently emerged in
in environmental education environmental education
Naturalist current Holistic current

Conservationist/Resourcist current Bioregionalist current
Problem-solving current Praxic current
Systemic current Socially critical current
Scientific current Feminist current
Humanist/mesological current Ethnographic current
Value-centred current Eco-education current
Sustainable development/sustainability current
curricula (‘Education for sustainability’ and ‘Education for sustainable development’).

However this has not necessarily resulted in actual practice42 as illustrated in an Australia-
wide study where 80 per cent of practising teachers were found to be unaware of what
education for sustainability really meant and less than 2 per cent were ‘using education for
sustainability practices in their classroom’.43
Sauvé44 explicitly maintains that each current ‘comprises a plurality and diversity of prop
ositions’ whereby there is fluidity across the currents. Since Sauvé’s seminal article it can be
observed that six further currents (or in some cases evolved currents) have emerged in the
literature that could be described as slow,45 place-based,46 socioecological,47 play-based,48
41 Sauvé, ‘Currents in Environmental Education’, at 13.

42 Malone and Somerville, Education for Sustainable Development Report.
43 Australian Education for Sustainability Alliance, Education for Sustainability and the Australian
Curriculum Project: Final Report for Research Phases 1 to 3 (Melbourne: AESA, 2014), 89, 90. Quoted in
Malone and Sommerville, Education for Sustainable Development Report.
44 Sauvé, ‘Currents in Environmental Education, at 12.
45 P. Payne and B. Wattchow, ‘Slow Pedagogy and Placing Education in Post-Traditional Outdoor
Education’ (2008) 12(1) Australian Journal of Outdoor Education 25–38.
46 A. Cutter-Mackenzie, P. Payne, and A. Reid (eds.), Experiencing Environment and Place through
Children’s Literature (United Kingdom: Routledge, 2011); D. Gruenewald and G. Smith (eds.), Place-
Based Education in the Global Age: Local Diversity (New York: Lawrence Erlbaum, 2008); M. McKenzie,
‘The Places of Pedagogy: or, What We can do with Culture Through Intersubjective Experiences’ (2008)
14(3) Environmental Education Research 361–73; D. Sobel, Place-based Education: Connecting Classrooms
& Communities (Vol. Natury Literacy Series) (Great Barrington M.A.: Orion Society, 2005); M. Somerville,
K. Power, and P. de Carteret (eds.), Landscapes and Learning: Place Studies for a Global World (Rotterdam:
Sense Publishers, 2009).
47 B. Wattchow and others, The Socioecological Educator: Building Active, Healthy and Sustainable
Communities (The Netherlands: Springer, 2014).
48 A. Cutter-Mackenzie and S. Edwards, ‘Toward a Model for Early Childhood Environmental
Education: Foregrounding, Developing, and Connecting Knowledge Through Play-Based Learning’
(2013) 44(3) The Journal of Environmental Education 195–213; A. Cutter-Mackenzie and others, Young
Children’s Play and Environmental Education in Early Childhood Education (The Netherlands: Springer,
2014); S. Edwards and A. Cutter-Mackenzie, ‘Enviromentalising Early Childhood Education Curriculum
Through Pedagogies Of Play’ (2011) 36(1) Australian Journal of Early Childhood Education 51–60.
participatory research oriented,49 posthumanist,50 and new materialist.51 Table 3 details the
aim, pedagogical approaches, and examples in practice of each current.
We now turn to two case studies of environmental education, namely Australia and
Bangladesh. We consider both formal and informal examples in consideration of the policy
and pedagogical history and trajectories of environmental education in these case studies.
42.3.2 Environmental Education in Australia

42.3.2.1 Background
Environmental education as a concept ‘received its first formal recognition in Australia in
April 1970 at the Australian Academy of Science Conference on Education and the
Environmental Crisis’.52 During the 1970s, education departments in Australia produced few
policy documents about environmental education. However, in 1980 the book ‘Environmental
Education for Schools’53 was published and distributed to all Australian schools. The con-
tents of the document echoed the principles of the UNESCO-UNEP meetings.54
At the policy level, environmental education has developed at both the national, and the
state and territory levels in Australia (see Table 4). At the national level, environmental
education has been included on the national agenda since 1989. In 1989 Prime Minister
Hawke published ‘Our Country Our Future’ which stated that ‘the Commonwealth, in
co-operation with State governments, will examine ways of increasing awareness and under-
standing of our global environment in Australia’s schools’.55 Shortly after, the Australian
Education Council (AEC) (1994) proposed ten national goals for Australian schools in the
‘Hobart Declaration’ document. One goal was dedicated to environmental education,
namely to ‘achieve an understanding of, and concern for, balanced development and the
global environment’.56
49 E. Barratt Hacking, A. Cutter-Mackenzie, and R. Barrratt, ‘Children as Active Researchers: The
Potential of Environmental Education Research Involving Children’ in R. Stevenson and others (eds.),
The Handbook of Research on Environmental Education (Washington D.C.: American Educational Research
Association, 2013), 438–58; R. Barratt and E. Barratt Hacking, ‘A Clash of Worlds: Children Talking about
their Community Experience in Relation to the School Curriculum’ in A. Reid and others (eds.),
Participation and Learning: Perspectives on Education and the Environment, Health and Sustainability,
(Dordrecht: Springer, 2008), 285–98.
50 K. Malone, ‘Reconsidering Children’s Encounters With Nature and Place Using Posthumanism’
(2016) 32(1) Australian Journal of Environmental Education 1–15.
51 P. Payne, ‘What Next? Post-critical Materialisms in Environmental Education (2016) 47(2) The
Journal of Environmental Education 169–78.
52 A. Greenall, ‘Searching for a Meaning: What is Environmental Education?’ (1986) 5(2) Geographical
Education 9–12, at 9.
53 Curriculum Development Centre, Environmental Education: A Sourcebook for Primary Education
(Canberra: Curriculum Development Centre, 1981).
54 UNESCO-UNEP, ‘The Belgrade Charter’ (1976) 1 Connect 1, at 1–9; UNESCO. The Final Report:
Tbilisi (14–26 October 1977), DOC MP/49 (Paris: UNESCO, 1977); UNESCO-UNEP, ‘The Tbilisi Declaration’
(1978) 3(1) Connect 1–8. Quoted in Cutter-Mackenzie, ‘Teaching for Environmental Sustainability’.
55 R. Hawke, Our Country Our Future (Canberra: Australian Government Publishing Service, 1989), iv.
56 Australian Education Council (AEC), A Statement on Studies of Society and Environment for
Australian Schools (Carlton: Curriculum Corporation, 1994), 43.
Table 3 New currents in environmental education
Current Aim Pedagogies Example (in practice)
Slow Place-Base Avoidance of fast pedagogies, Experiential, embodied Nature play over extended periods of time and space enabling learners to
Current rather a slow deeply embodied sensory, Place understand the relationship between their body and nature. The Forest
immersion of place and space Schools programme is an informal example of such pedagogy
Play-Based Current Drawing upon an array of play- Open-ended play, Young Children (birth to 8) engaged in a range of play experiences that vary
based pedagogies as a way of modelled play, in structure and form in immersing the child in their world. See e.g. http://
discovering the natural world purposefullyframed www.earlychildhoodaustralia.org.au/our-publications/every-child-magazine/
and phenomena play, intentional every-child-index/every-child-vol-18-3-2012/sustainability-intentional-
teaching teaching-early-childhood-free-article/. Curricula documents in some
countries promote this pedagogy, see e.g. the Australian Early Childhood
Framework: https://www.education.gov.au/early-years-learning-framework
Socio-ecological Where humans are part of the Lived experience, agency, This is an informal approach undertaken with students at both school and
Current social ecology, therein place, and experiential tertiary levels, where students undertake an ‘ecobiography’ deeply reflecting
reflecting deeply on the self as on their early experiences in nature and considering the implications for their
a basis of sustainability action own sustainability practices
or practice
Participatory Where learners are engaged Participatory learning, This where young people initiate a sustainability education and research
Research Oriented in a research-led teaching child or learner-initiated, project in their school leading to transformational change. See e.g. https://
Current pedagogy enabling learners argentic freechild.org/ladder-of-youth-participation/.
to be co-researchers, This research comes from the students rather than being a policy driven
co-curriculum designers approach
and co-learners
Posthumanist The deconstruction of the Body, gender, race, An example of posthumanist mindset is the film Avatar (2009). The film is
Current human condition sexuality, reproduction, located in the world of Pandora where Na’vi (indigenous beings live) and
coupling of the human humans (and their avatars) collide
and the non-human world
New Materialist A material, social, and Diffractive, imaginary, An interactive public artworks commissioned by the university which engages
Current conceptual network that creative, self expression, learners in the natural and cultural dimensions of sustainability. See e.g.
learners can navigate and interdisciplinary Cubewalk at: http://scu.edu.au/space/index.php/118

engage with
Table 4 Policy cartography of environmental education in Australia

Year Initiative
1980 Curriculum Development Centre (1981). Environmental Education: A Sourcebook

for Primary Education. Canberra: Curriculum Development Centre
1989 Hawke, R. J. (1989). Our Country Our Future. Canberra: Australian Government
Publishing Service
1994 The Australian Education Council (AEC) proposed ten national goals for
Australian schools in the ‘Hobart Declaration’ document. One goal was
dedicated to environmental education, namely to ‘achieve an understanding
of, and concern for, balanced development and the global environment’
(Australian Education Council, 1994, at 43)
1999 Department of Environment and Heritage (1999). Today Shapes Tomorrow:
Environmental Education for a Sustainable Future—A Discussion Paper.
Canberra: Environment Australia.
2000 Department of Environment and Heritage (2000). Environmental Education for
a Sustainable Future: National Action Plan. Canberra: Environment Australia.
2003 Australian Research Institute in Education for Sustainability (ARIES) was
established in 2003 as an Australian government initiative to develop the
capacity of government, community, and business organizations to achieve
improvements in sustainability. Since 2009 ARIES has continued independently.
See http://www.aries.mq.edu.au
2003 The National Environmental Education Council (NEEC) was formed as an
expert group across predominantly school, tertiary and industry sectors.
See: http://www.environment.gov.au/resource/extending-vision-australian-
government-engagement-un-decade-education-sustainable
It is important to note that the NEEC has been disbanded under the elected
liberal government of Australia
2003 The National Environmental Network (NEEN) was formed to plan for strategies
particularly for the school sector through school communities. See: http://www.
environment.gov.au/resource/setting-stage-strategic-research-agenda-undesd
As above the NEEN has been disbanded under the elected liberal government
of Australia
2005 Australian Government Department of the Environment and Heritage (2005).
Educating for a Sustainable Future: A National Environmental Education
Statement for Australian Schools. Canberra: Australian Government.
2005 National Sustainable Schools Initiative based on Victoria’s pilot sustainable
schools initiatives by the Gould League and CERES. See: http://155.187.2.69/
education/aussi/index.html
It is important to note that the Sustainable Schools initiative is currently
unstaffed by the Australian government and is essentially a website. It currently
receives no government funding and is state/territory controlled
2009 Australian Government’s Department of Environment and Heritage (2009).
Living Sustainably: the Australian Government’s National Action Plan for
Education for Sustainability. Retrieved from: http://www.deh.gov.au/education/
nap/index.html
2010 Australian Government Department of Environment Water Heritage and the

Arts (2010). Sustainability Curriculum Framework: A guide for curriculum
developers and policy makers. Canberra: Commonwealth of Australia
2017 Australian Curriculum and Assessment Reporting Authority (2017). The
(implementation Sustainability
commenced 2014) Cross-Curriculum priority. See: http://www.australiancurriculum.edu.au/
crosscurriculumpriorities/sustainability/overview
42.3.2.2 A Cartography of Environmental Education in Australia

In 2009 the Australian government released a national statement entitled the Living
Sustainably: The Australian Government’s National Action Plan for Education for
Sustainability. The 2009 statement is the current national policy now verging on a decade
old suggesting that Australia is not keeping abreast with contemporary environmental
education policy, research, and practice. Notwithstanding, the statement also includes a
summary brochure entitled ‘Education for Sustainability: The Role of education in Engaging
and Equipping People for Change’. The introductory paragraph of the summary states:
There are many definitions of sustainability, which are influenced by people’s values and culture.
The best known of these is the UN definition of sustainable development, now commonly
referred to as the Brundtland definition, which states: Sustainable development is development
that meets the needs of the present without compromising the ability of future generations to
meet their own needs. The Australian Government has adapted the Brundtland ideals and
objectives to local conditions, to shape its approach to using education and learning as tools
for change towards sustainability. In Australia, we generally use the term Education for
Sustainability, rather than Education for Sustainable Development.57
The national statement is centred on the United Nations Decade for Education for
Sustainable Development claiming that the document itself ‘represents a significant contri-
bution to Australia’s participation in the United Nations Decade . . . ’.58 It is interesting to
note that Gough, in an interview with Mehmet Taser regarding the challenges of environ-
mental education, noted that:
We’ve got the Decade for Education for Sustainable Development which provides p rominence
at the international level but behind that there’s very little happening if you go country by
country. Certainly in Australia there would be probably less than 1,000 people would even
know that we are in a Decade of Education for Sustainable Development (ESD).59
57 Commonwealth of Australia, Education for Sustainability: The Role of education in Engaging and
Equipping People for Change (Canberra: Commonwealth of Australia, 2009), 1.
58 Australian Government Department of the Environment Water Heritage and the Arts, Living
Sustainably: The Australian Government’s National Action Plan for Education for Sustainability (Vol. 32)
(Canberra: Commonweatlh of Australia, 2009), 2.
59 M. Tasar, ‘Challenges in Environmental Education: A Conversation with Annettee Gough’ (2009)
5(3) EURASIA Journal of Mathematics, Science and Technology Education, 187–96, at 193.
Of particular significance, the phrase environmental education has no presence in the

national statement. The words nature, wild, consumption, wilderness, animals, place, space,
and eco have all been stripped from the document and by default from ‘environmental
education’. These concepts existed to varying extents in earlier iterations of environmental edu-
cation policy and curriculum documents in Australia. The current policy approach presents
a broad version of environmental education, which is unquestioning of the government and
supports a technocentric or anthropocentric vision that aligns with a Western capitalist
neoliberal consumer society. The same trend can also be seen in the new Australian national
curriculum where sustainability is identified as one of three cross-curriculum priorities.60
While environmental education at a policy level has been largely anthropocentric in
Australia, there are many practice-based examples which offer alternative social and eco-
logical imaginaries such as the Australian NSW Climate Change + Me project.
42.3.2.3 Climate Change + Me

The Climate Change + Me (CC+Me) project was funded by the NSW (New South Wales,
Australia) Environmental Trust; an independent statutory body founded by the NSW gov-
ernment to oversee an array of environmental initiatives in NSW. As it stands, climate
change is absent in the national curriculum for primary and middle school children.
According to Cutter-Mackenzie and Rousell (2018) the CC + Me project aims to strengthen
local environments and communities by increasing opportunities for children and young
people to be proactive in climate change education. The intended audience of the pro-
gramme are children and young people aged 9–14 (middle school years) residing in the
northern rivers of NSW. Children were sought because they ‘are often targeted but rarely
consulted as legitimate contributors to educational research and curriculum development’.61
Early in the project children were engaged as co-researchers through a participatory,
creative, and ethnographic process. To date, this project has resulted in the Climate Change +
Me social media platform,62 the Past Now Future community exhibitions in public library
spaces,63 an interdisciplinary Climate Change Curriculum, the Climate Change online
profile tool ‘What’s Your Climate Change Avatar,64 and the Climate Change Challenge, a
community event which brought together schools, climate scientists, environmental artists
and writers, and members of the wider community to address the challenges of climate
change (see Figure 42.1). The project has also seen the writing and dissemination of robust
publications by Cutter-Mackenzie, Rousell, and child co-researchers.65
60 Australian Curriculum and Assessment Reporting Authority (ACARA) (2017). The Sustainability
Cross-Curriculum Priority, available at: http://www.acara.edu.au/curriculum/cross-curriculum-priorities.
61 A. Cutter-Mackenzie and D. Rousell, ‘Education for What? Shaping the Field of Climate Change
Education with Children and Young People as Co-researchers’ (2018) Children’s Geographies, 1–15. doi:
10.1080/14733285.2018.1467556.
62 See http://climatechangeandme.com.au.
63 D. Rousell and A. Cutter-Mackenzie, The Changes—Art, Writing and Research by Student Researcher
in the Climate Change and Me Project (Gold Coast, Australia: NSW Environmental Trust, 2015).
64 See http://climatechangeandme.com.au/survey/.
65 D. Rousell, A. Cutter-Mackenzie, and J. Foster. ‘Children of an Earth to Come: Speculative Fiction,
Geophilosophy and Climate Change Education Research’ (2017) 53(6) Special Issue for Educational
Studies 654–69. doi:10.1080/00131946.2017.1369086.
3: Climate Change
2: Climate Change +
1: Climate Change + + Me Curriculum, 4: Climate Change + 5: Climate Change
Me Community
Me Research Implementa-tion and Me Youth Network Challenge
Exhibitions
July 2014 - October Evaluation September 2016 - (Conference)
October - December
2015 January - October ongoing October 2016
2015
2016
Figure 42.1 5 Key Phases of Climate Change + Me Project
All phases of the Climate Change + Me project were inspired by Cutter-Mackenzie’s

child-framed methodology.66 The methodology was further inspired by Rousell’s arts-based
and post-qualitative research practices.67
42.3.3 Environmental Education in Bangladesh

42.3.3.1 The State of the Environment
Bangladesh is a majority (developing) country and has been identified as highly vulnerable
to climate change due to its extensive flood plains and low elevation. The socio-economic
factors like population density, a high level of poverty, and its limited resources add to the
vast environmental problems.68 It is projected that sea-level along the Bangladesh coast
could rise by 88 cm or more by 2100,69 leading to the low lying coastal areas being inundated.
42.3.3.2 Environmental Policy

In response to the Stockholm mandate (1977), the government of Bangladesh formulated
several policy statements advocating widespread environmental studies but despite the vul-
nerability of Bangladesh in terms of climate change there has never been a ‘specific govern-
ment policy for environmental education’.70 The Bangladesh landmark environmental and
education plans and policies are outlined in Table 5.
There is little research literature relating to environmental education in Bangladesh.
Therefore we can only report on the environmental education and related education policy
and curriculum development for Bangladesh. In order to contextualize such discussions it
is important to describe the education system in Bangladesh.
66 Barratt Hacking et al., ‘Children as Active Researchers’; A. Cutter-Mackenzie, ‘Where are
Children and Young People in Environmental Education Research?’ (2014) 30(1) Australian Journal of
Environmental Education 103–6.
67 D. Rousell, ‘The Cartographic Network: Re-imagining University Learning environments through
the Methodology of Immersive Cartography’ (2015) 5(1) Multidisciplinary Research in the Arts. 1.
68 M. Chowdhury, ‘Nature of Environmental Education in Bangladesh: A School Level Assessment
with Reference to the National Curriculum’ (2014) 4(1) International Electronic Journal of Environmental
Education 53–60; S. Aminuzzaman, Environment Policy of Bangladesh: A case Study of an Ambitious
Policy with Implementation Snag (Paper presented to South Asia Climate Change Forum, Monash
University, Australia, July 2010); S. Mahmood, ‘Impact of Climate Change in Bangladesh: Role of two
Governments (2014) 6(3) Journal of Ecology and the Environment 119–25.
69 M. Rahman, ‘Climate Change, Disaster and Gender Vulnerability: A Study on Two Divisions of
Bangladesh’ (2013) 2(2) American Journal of Human Ecology, 72–82, at 75.
70 M. Salequzzaman and J. Davis, ‘Perspectives of Environmental Education and Environmental
Management in Bangladesh and Their Sustainability’ (2003) 1 Environmental Informatics Archives
70–82, at 72.
Table 5 Environmental and education action plans and policies in Bangladesh

Year Initiative
1970 The Water Pollution Control Ordinance related to the control and abatement of water
pollution in Bangladesh (Clemett, 2006, at 3)
1977 The Environmental Pollution Control Ordinance built on the water pollution control
ordinance to include the ‘control, prevention and abatement’ of ‘air, water, or soil’
pollution in Bangladesh (Clemett, 2006, at 4)
1989 The Ministry of Environment and Forests (MoEF) was officially formed for the
conservation of ecosystems, to control pollution, take action on climate change, and
carry out research (MoEF, 2014)
∙ Maintaining the ecological balance and overall development through protection and
1992 The National Environmental policy was on a national scale with efforts such as:
∙ Identifying and regulating polluting and environmentally degrading activities;

improvement of the environment;
∙ Ensuring environmentally sound development;

∙ Ensuring sustainable and environmentally sound use of all national resources; and
∙ Actively remain associated with all international environmental initiatives (adapted
from MoEF, 1992, as cited in Aminuzzaman, 2010, at 2)
1995 The National Environmental Management Action Plan (NEMAP) was formulated “to
provide action plans to respond to environmental issues and to promote sustainable
development” (Aminuzzaman, 2010, at 2)
1995 The Bangladesh Environmental Conservation Act provided guidelines for conservation of
the environment, improvement of the environmental standards, and control and
mitigation of environmental pollution (MoEF, 1995, at 154)
1996 The Fourth Five-Year Plan recommended the introduction of environmental education at
all levels of education (Salequzzaman and Davis, 2003, at 72)
1997 The Environment Conservation Rules were issued in order to exercise the powers of the
Conservation Act (1995) (Asian Development Bank, 2004, at 19)
2000 The Environmental Court Act reinforced the Conservation Act (1995) and the
Environmental Conservation Rules (1997) by establishing courts to trial ‘offences
relating to environmental pollution’ (Clemett, 2004, at 7)
2002 The report of the World Summit on Sustainable Development at Johannesburg (UN,
2002) revealed some direction for Bangladesh in terms of sustainable development but
it did not show any clear guidelines for environmental education in schools, rather the
focus was on the economic development of Bangladesh
2003 The Mohammad Moniruzzaman Mia Commission Report recommended measures with a
focus on improving the quality of education in Bangladesh but environmental education
was not a strong focus of this report (MoEF, 2003)
2004 The National Report of Bangladesh on the Development of Education was undertaken
to improve education in Bangladesh from primary to tertiary. Environmental education
was encouraged in this report, particularly relating to knowledge of human impacts on
the environment such as population increase and pollution, but no particular guidelines
were specified for school-based environmental education (MoE, 2004)
2005 The National Adaptation Program of Action (NAPA) was developed to address
environmental issues in Bangladesh, particularly the ‘adverse’ impacts of climate change.
It included a number of ‘adaptation measures’ including introducing issues relating to
climate change into curricula at both secondary and tertiary level (MoEF, 2005, at xvi)
2009 The Bangladesh Climate Change Strategy and Action Plan was developed to expand on
the NAPA (2005) in order to prepare for the adverse impacts of climate change and to
protect Bangladeshi people from these impacts (MoEF, 2009, at xvii). Environmental
Education was not a focus of this action plan
2010 The National Education Policy Economic activities and technological development (in
secondary education) included increasing awareness of the environment and encouraging
students to ‘fight the challenges of the world threatened by climate change and other
natural disasters and to create in them a social awareness about environment’ (Ministry
of Education, 2010, at 2). However the emphasis of this policy is on economic development
and there is no clear e nvironmental education policy recommendations
2011–15 The Sixth Five-Year Plan of Bangladesh emphasized developing ‘strategies, policies
and institutions that allow Bangladesh to accelerate growth and reduce poverty’
(General Economics Division Planning Commission, Ministry of Planning, 2012, at 2)
This plan focused on environmental strategies for sustainable development: such as,
pollution reduction, waste management, and water and forest conservation measures.
However, there were no recommendations for the development of environmental
education policies (General Economics Division Planning Commission, Ministry of
Planning, 2012)
2012–13 Introduction and implementation of a new national curriculum incorporating
environmental and climate issues and global citizenship in the twenty-first century
(Hossain, 2015)
42.3.3.3 Bangladesh Education Systems and Environmental Education

There are three education systems in Bangladesh, namely: General, Madrasha, and Technical
education systems.71 These educations systems comprise three stages: primary, secondary,
and higher education. School education consists of five years of primary and seven years
of secondary school (junior secondary—three years, secondary—two years, and higher
secondary—two years).72 In the general education system in Bangladesh which has the
largest numbers of students, environmental education is not included as an individual
subject, rather, environmental education is integrated into subjects such as science (i.e.
knowledge about the environment), ‘Bangladesh and global studies’ (i.e. environmental
protection and development, climate), and ‘religion and moral education’ (i.e. a strong ethic
of respect for the environment and living things from an anthropocentric perspective).73
Textbooks have typically guided the curriculum at both primary and secondary levels.74
There have been considerable advancements in secondary education in Bangladesh in
recent years, in terms of increased enrolments and academic success rates (in examinations)
but this has been at the expense of quality education.75 The national curriculum that was
71 Chowdhury, ‘Nature of Environmental Education in Bangladesh’.

72 Ministry of Education, ‘Development of Education, National Report of Bangladesh’ (Bangladesh:
Ministry of Education, 2004).
73 M. Hossain, ‘National Curriculum 2012: Moving Towards the 21st Century’ (2015) 14(1) Bangladesh
Education Journal, 7–24.
74 Chowdhury, ‘Nature of Environmental Education in Bangladesh’.
75 Hossain, ‘National Curriculum’.
developed prior to 1995 at both primary and secondary levels was overloaded with
fact-based learning, was examination-oriented, and failed to prepare students for the changing
needs of Bangladesh’s contemporary society and environment.76 The formal Bangladeshi
education system has failed to provide environmental education or education for sustain-
ability that promotes everyday life applications.77 There are deep post-colonial and other
cultural, religious, and economic influences in Bangladesh that appear to impact how
environmental education is approached. The curriculum is politically and economically
driven and as a result it has not been possible to adapt to the changing priorities of the
twenty-first century or to offer any alternative approach outside an education system
described by Hossain as being highly centralized, ‘non-participatory and non-transparent’.78
Interestingly education literature utilized in Bangladesh which does promote sustainability
is drawn from a minority world (Western) context which addresses challenges that can be
quite different to those facing majority countries79 and fails to incorporate indigenous
knowledge. Problems relating to the environment and sustainability that a majority coun-
try like Bangladesh faces are: growing population, insecurity of food, lack of literacy in
the population, lack of agency, widespread corruption, energy shortages, ‘deforestation’,
‘pollution’, women’s status,80 and biodiversity impacts. Chowdhury identified the poor
representation of issues such as ‘natural resources degradation and depletion, biodiversity,
energy, (and) urbanization’ in the original textbooks and noted that climate change was
not mentioned at any level despite there being ‘ample’ opportunity for the inclusion of
this important issue.81 In Bangladesh an anthropocentric approach to environmental
education is taken where the emphasis is provision of basic human needs or improving
the environment for the benefit of humans. This anthropocentric view is in contrast to a
holistic or ecocentric view of the environment and sustainability, where ecological con-
siderations, values, attitudes, and commitment are at the forefront.
More recently, in 2012, a new curriculum was developed in Bangladesh at both Primary
and Secondary levels and implementation started in 2013. This curriculum attempts to
promote a more inquiry-based style of learning where twenty-first-century issues are
addressed such as those relating to the environment and sustainability, including the
impacts of climate change, and energy and water conservation measures.82 The revised
textbooks for the new curriculum introduce some issues relating to environmental edu-
cation, including climate change education.83 However, despite ‘Bangladeshi Government,
Ministries of Education and educators’ expressing a willingness to include environmental
education programmes84 and encourage more incorporation of environmental issues
76 Chowdhury, ‘Nature of Environmental Education in Bangladesh’; Hossain, ‘National Curriculum’.

77 F. Haque, ‘Education for Sustainable Development: An Evaluation of the New Curriculum of the
Formal Primary Education in Bangladesh’ (2013) 1 European Scientific Journal 320–30.
78 Hossain, ‘National Curriculum’, quoted in ibid., at 323.
79 Haque, ‘Education for Sustainable Development’.
80 M. Shohel, C. Mahruf, and A. Howes, ‘Models of Education for Sustainable Development and Non-
formal Primary Education in Bangladesh’ (2006) 5(1) Journal of Education for Sustainable Development
129–39, quoted in Haque, ‘Education for Sustainable Development’, at 324.
81 Chowdhury, ‘Nature of Environmental Education in Bangladesh’, at 55, 57.
82 Hossain, ‘National Curriculum’. 83 Haque, ‘Education for Sustainable Development’.
84 Ibid., at 328.
into textbooks, actually doing these things has been a challenge. It is difficult to introduce
such programmes into a highly traditional education system that is knowledge-focused
(located in a traditional scientific objective paradigm), teacher-centred, and is divided
into disciplinary frameworks as opposed to an interdisciplinary, student-centred education
system, where inquiry-based teaching is encouraged and values and attitudes addressed.85
Furthermore, many teachers in Bangladesh may be unsure how to implement environ-
mental education and there is no successful working model for this style of programme.86
Malone and Somerville argue that teacher education is a high priority in the implementation
of environmental education as teachers can serve as ‘agents of change’ where they bring
about ‘curriculum innovation’ and whole school change.87
While the school systems may be generally gradual to integrate effective environmental
education, the following case study highlights how an individual Bangladeshi teacher
inspired environmental consciousness and sustainable practices amongst her students.
42.3.3.4 Rose’s Story

Rose’s strong environmental consciousness was influenced by her father who introduced
her to the love of plants and nature generally. When undertaking her teacher education
Rose became a member of her university green club where she organized rallies to edu-
cate her fellow students about the environment, undertook projects to clean up the uni-
versity grounds, and made posters and displays with environmental and cultural themes.
It was here Rose worked with fellow students to create a documentary to bring awareness
about climate change and its local and global impacts. This strong environmental ethic and
passion continued into her primary and secondary science teaching posts in Bangladesh.
In the schools where Rose worked she set up environmental clubs for the students, she
organized environmental themed art competitions, tree plantations days, set up recycle
bins in the school grounds, educated students about the impact of urbanization on the
environment, inspired students to take part in the cleaning up of rubbish in the local
environment, and encouraged students and their families to practise water conservation.
Rose encouraged her science students to participate in the Annual National Science Fair
organized by the Bangladesh Council of Scientific and Industrial Research (BCSIR). The
students built environmental models and presented their projects at the science fair in
Dhaka city, these projects included models to demonstrate climate change induced sea-level
rise and hydroponics models for the growing of lettuces. Rose initiated the development
of vegetable gardens in schools where the students organically grew tomatoes, okra, olive
trees, and other flowering and food plants in the school complex. The school rooftop
gardens were her science classrooms of choice where Rose encouraged students to iden-
tify, grow, and care for the plants and trees. Her students planted seeds and grew plants to
take home and care for in their own homes. Rose’s story is a familiar tale in environmen-
tal education where an individual teacher transcends policy or lack thereof, in providing
environmental education.
85 Ibid., at 328; Hossain, ‘National Curriculum’.

86 Haque, ‘Education for Sustainable Development’.
87 Malone and Somerville, Education for Sustainable Development Report, at 7, 44.
Despite having entered the Anthropocene epoch, where it is evident that humans are
severely impacting the Earth’s natural systems, there is still much perplexity about what
environmental education is and how it should be provided. Our historical and policy car-
tography of environmental education has revealed a field or fields caught up in a struggle of
supremacy. For the past four decades, proponents of environmental education, education
for sustainability, or education for sustainable development have passionately promoted
their solution to address environmental decline. However while there are some policies
addressing environmental concerns, there appears to be an absence of robust policy and
support at government level that actively engages teachers and students at all levels to be
informed and active citizens addressing issues such as anthropogenic factors leading to
climate change and the resulting devastation to the Earth and its inhabitants.
At the coalface, there are alternative social and ecological imaginaries such as the Climate
Change + Me Project (Australia) and Rose’s story (Bangladesh) revealing that people are
taking action, as individuals or groups. It does imply though that environmental education
must not be left just to policy and formal curriculum, given historical environmental
education supremacy struggles. Rather an alternative or informal grassroots movement
is where the most significant environmental education currently operates with policy
dawdling behind.
42.5 Acknowledgement
The historical policy discussion on environmental education presented in the earlier part of
this chapter includes concepts and ideas presented in the lead author’s publication: A. Cutter-
Mackenzie, ‘Teaching for Environmental Sustainability’ in R. Gilbert and B. Hooeper (eds.),
Teaching Society and Environment (Melbourne: Cangage, 2010), 348–63).

Barratt Hacking, E., A. Cutter-Mackenzie, and R. Barrratt, ‘Children as Active Researchers: The
Potential of Environmental Education Research Involving Children’ in R. Stevenson, A. Wals,
M. Brody, and J. Dillon (eds.), The Handbook of Research on Environmental Education (Washington
D.C.: American Educational Research Association, 2013), 438–58.
Gough, A., Education and the Environment: Policy Trends and the Problems of Marginalisation
(Melbourne: The Australian Council for Educational Research Ltd., 1997). doi:10.1080/13504622.
2015.1018141.
Jickling, B., ‘Why I Don’t Want My Children to Be Educated for Sustainable Development (1994) 11(3)
Trumpeter 114–16.
Malone, K., ‘Reconsidering Children’s Encounters With Nature and Place Using Posthumanism’
(2016) 32(1) Australian Journal of Environmental Education 1–15.
Payne, P. and B. Wattchow, ‘Slow Pedagogy and Placing Education in Post-traditional Outdoor
Education’ (2008) 12(1) Australian Journal of Outdoor Education 25–38.
Rousell, D., A. Cutter-Mackenzie, and J. Foster, ‘Children of an Earth to Come: Speculative Fiction,
Geophilosophy and Climate Change Education Research’ (2017) 53(6) Special Issue for Educational
Studies 654–69. doi:10.1080/00131946.2017.1369086.
Sauvé, L., ‘Currents in Environmental Education: Mapping a Complex and Evolving Pedagogical Field
(2005) 10(1) Canadian Journal of Environmental Education 11–37.
Selby, D., ‘The Firm and Shaky Ground of Education for Sustainable Development’ in B. Chalkley,
M. Haigh, and D. Higgitt (eds.), Education for Sustainable Development: Paper in Honour of the
United Nations Decade of Education for Sustainable Development (2005–2014) (New York: Routledge,
2009), 199–213.
Wattchow, B., R. Jeanes, L. Alfrey, T. Brown, A. Cutter-Mackenzie, and T. O’Connor, The Socioecological
Educator: Building Active, Healthy and Sustainable Communities (The Netherlands: Springer, 2014).
Weston, A., ‘Deschooling Environmental Education’ (1996) 1 Canadian Journal of Environmental
Education 35–46.
CHAPTER 43
I n for m ationa l
R equ ir em en ts a n d
En v ironm en ta l
Protection
Karen Morrow
43.1 Overview: The Nature of Informational Requirements

in Environmental Law 973
43.2 The State and Informational Requirements 977
43.3 Principle 10 of the Rio Declaration and Modern State-based
Access to Environmental Information 978
43.3.1 Introduction978
43.3.2 Principle 10 in Regional Hard Law 981
43.3.3 Key Features of the Aarhus and draft ECLAC Conventions
(DEC)985
43.4 Companies, Non-Regulatory Information Disclosure,
and the Public988
43.4.1 State-mandated Information Disclosure 988
43.4.2 Voluntary Information Disclosure by Companies 991
43.5 Concluding Remarks: Emerging Informational Concerns
in the Age of Information Technology 993
informational requirements 973
43.1 Overview: The Nature of

Informational Requirements in
Environmental Law
Informational requirements in environmental law possess certain characteristics that

are germane to their comparative analysis over both temporal and spatial axes. This chapter
will begin with a brief sketch of informational requirements and delineate some of the key
features shaping their deployment. These issues embrace a complex set of interacting factors,
notably the source and nature of information (and its multifarious potential uses), and the
variety of stakeholders who may use it (by necessity, mandate, or desire) and which contribute
to the taxonomy of information as a factor in shaping environmental behaviour. Coverage
will consider the roles of the main actors in the context of information: (primarily) states;
(increasingly) industrial and business actors; and the public. While, as we shall see below,
states remain the foremost players in information contexts, their role in this regard is no longer
as dominant as it once was, as other actors progressively come to the fore in some areas. The
role of states too is rapidly evolving, particularly in the development of more collective
approaches. Crucially, for the purposes of this chapter, after a lengthy gestation period, the
latter development provides an exciting new opportunity to pursue the further development
of comparative international law through analysis of extant and emerging regional hard law
instruments seeking to actuate international (soft) law goals relating to information.
In the first place, informational requirements are of course not unique to environmental
law, and often involve more-or-less particularized application of more general constitutional,
administrative, and regulatory law requirements on access to information. Thus, while 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.1 At the same time, the
particular demands posed by environmental information have caused many states to adopt
supplementary regulatory regimes to engage with it,2 more general provision not always
being adequate to deal with the subtleties involved.3
1 See e.g. O. Jørgensen, Access to Information in the Nordic Countries: A Comparison of the Laws of
Sweden, Finland, Denmark, Norway and Iceland and International Rules, trans. S. Harris (Gothenburg:
Nordicom, 2014), demonstrating marked differences of approach to both access to information and
access to environmental information even among states sharing similar legal cultures.
2 In UK law e.g. there is a specific regime for accessing environmental information held by public
authorities under the Environmental Information Regulations 2004 SI 2004 No. 3391, implementing
Directive 2003/4/CE on public access to environmental information, Official Journal L 041, 14/02/2003
P 0026–0032, adopted pursuant to the EU signing the Aarhus Convention; other information held by public
authorities falls under the general Freedom of Information Act 2000. A similar approach making special or
supplementary provision for environmental information is followed in many other states e.g.Denmark,
Iceland, and Sweden, Jørgensen, Access to Information in the Nordic Countries, at 15–16.
3 Finland e.g. does not make specific provision for environmental information, regarding it as falling
under general access to information law but as Jørgensen points out, in this case, the latter does not fully
encapsulate the former, ibid.
974 karen morrow
Second, environmental informational requirements serve distinct yet interconnected

purposes, which will form core considerations later in this chapter. Centrally, they play
intrinsic roles in the environmental law context in which they operate, for example in
informing policy4 and in feeding into permitting regimes.5 In the latter context, they are both
instrumental in and instruments of state regulation of environmental activity, furnishing
the factual foundation for the operation of regulatory control and latterly forming the subject
of substantial public engagement.6 Informational requirements play an initial role through
stipulated mandatory content for permit applications and serve ongoing functions in
monitoring and reporting obligations.
Simultaneously, environmental informational requirements may be regarded as serving
broader instrumental purposes in improving and/or democratizing environmental
governance;7 acting as a core element of sustainable development;8 and providing the foun-
dation for and gateway to other rights which are significant in an environmental context,
notably participation and access to justice. Indeed, the deployment of informational
requirements in environmental law has evolved in recent years in ways that explicitly link it
to such wider governance goals. This is most evident in the shift from a historical position
that characterized informational requirements primarily as confined to closed transactional
exchanges between the state (as regulator) and business (as the regulated) to a more visible
and outward-facing approach to dissemination, with a strong public engagement dimension.
This move simultaneously sees informational requirements cease to be the exclusive province
of technical environmental regulation and explicitly become a matter not only of public
interest, but also of interest to the public. In this guise, information requirements also
represent the sine qua non holding both state and private sector environmental actors to
account, by exposing the basis and therefore the veracity of their environmental claims and
performance to scrutiny by citizens (often through the agency of civil society). In consequence,
informational requirements may be promoted as delivering systemic accountability-related
benefits, including contributing to transparency, developing trust, and improving the quality
of outcomes.9
4 Employed in multiple contexts, and increasingly systematic in approach: e.g. states, using strategic
environmental assessment (SEA) as under Directive 2001/42/EC of the European Parliament and of the
Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the envir-
onment, Official Journal L 197, 21/07/2001 P. 0030-0037; and by international organizations, see e.g.
country environmental analysis (CEA) as practised by the World Bank, P. Pillai: ‘Strengthening Policy
Dialogue on Environment Learning from Five Years of Country Environmental Analysis’, World Bank
Environment Department Papers, No. 114, Law and Governance Series, Washington (2008), available at:
http://documents.worldbank.org/curated/en/915171468315365740/pdf/428210NWP01NO011PUBLIC10E
DP01140CEA.pdf.
5 Exhaustive information (and related publicity) requirements pervade regulatory processes across
the globe, e.g. under the Environmental Permitting Regulations (England and Wales) 2016 No. 1154; the
New South Wales Protection of the Environment Operations Act 1997, No .156; and Brazil’s Law 6.938/81
and the CONAMA Resolution 001/86 and No. 237/97.
6 Ibid.
7 R. P. Hiskes, The Human Right to a Green Future: Environmental Rights and Intergenerational Justice
8 S. Fulton and S. Wolfson: ‘Strengthening National Environmental Governance to Promote
Sustainable Development’ in R. V. Percival, J. Lin, and W. Piermattei (eds.), Global Environmental Law at
a Crossroads (Cheltenham: IUCN Academy/Edward Elgar, 2014), 13–29.
9 Ibid.
Third, the nature of the information generated and disseminated in environmental

contexts raises some significant issues as to its (highly differentiated) use value to the vari-
ous and diverse constituencies involved in the contexts just discussed. In the first place,
environmental information ranges widely, from relatively simple material that can be readily
grasped by the layperson, to the (prevalent) dense, highly specialized, technical material
that can only be generated, interpreted, and employed by experts. In respect of the latter
class of information, the use of supplementary, lay-friendly ‘non-technical summaries’,10 to
ensure that information is more broadly accessible is not unprecedented, but rare. The now
modish use of indicators to convey environmental information to a wider audience is making
some progress regarding the wider communication of environmental information,11 and in
facilitating comparative analysis of legal provision.12 That said, the selection and compilation
of data sets supporting indicators is challenging and they necessarily convey information in
quite broad terms, so questions arise as to their accuracy, application, and efficacy.13
It remains the case that, for some categories of environmental information there is a clear
(if for the most part under-examined14) distinction between its availability/accessibility and
its usability (understood as encapsulating the ‘ease of use and learnability of a human-made
object’15) and utility. The enormous range of information sources implicated in environ-
mental contexts raises further complex issues—for example, in the key area of regulating
risk, considerations ranging from the psychological16 to the legal17 come into play. In a related
concern, the volume of information available can create the danger of ‘drowning in disclosure’,
wherein it becomes very difficult to sift what is relevant from the mass of material to hand.18
Questions surrounding the nature of environmental information are further complicated
by the fact that, as recognized in post-modern thought, in addition to the formal, expert
information generated by environmental governance processes, multiple lay knowledges
10 As e.g. under Annex 4 para 7 of Directive 2011/92/EU on the assessment of the effects of certain
public and private projects on the environment (codification) OJ L26/1 28/1/2012.
11 Widely used internationally, see e.g. M. Winograd, Environmental Indicators for Latin America and
the Caribbean: Toward Landuse Sustainability (Bariloche: GASE, 1994); UNEP, Environmental Indicators
South Asia (Pathumpthani: UNEP, 2004); UNEP, Environmental Indicators for North America (Nairobi:
UNEP, 2006) and the UNECE, Environmental Indicators and Indicator-based Assessment Reports: Eastern
Europe, Caucasus and Central Asia (New York: UN, 2007), the OECD, Key Environmental Indicators,
available at: http://www.oecd.org/env/indicators-modelling-outlooks/37551205.pdf and globally in the
Millennium Development Goals online at and the successor Sustainable Development Goals regime—
available at: http://unstats.un.org/sdgs/indicators/database/. See also W. Li. ‘Self-Motivated Versus
Forced Disclosure of Environmental Information in China: A Comparative Case Study of the Pilot
Disclosure Programmes’ (2011) The China Quarterly 331.
12 W. Twining, ‘Globalization and Comparative Law’ (1999) 6 Maastricht Journal of European &
Comparative Law 217, at 240.
13 UNEP, Environmental Indicators for North America, at 12.
14 A. Gupta, ‘Transparency Under Scrutiny: Information Disclosure in Global Environmental
Governance’ (2008) 8(2) Global Environmental Politics 1–7.
15 Drawing from software engineering wherein the term is commonly used in this way—see https://
en.wikipedia.org/wiki/Usability.
16 Discussed to fascinating effect in G. Marshall, Don’t Even Think About It: Why our Brains are Wired
to Ignore Climate Change (New York: Bloomsbury, 2014).
17 See e.g. Law Commission of Canada, Law and Risk (Vancouver: UBC Press, 2005).
18 Gupta, ‘Transparency Under Scrutiny’, at 4.
976 karen morrow
too have significant contributions to make in this area.19 Drawing such perspectives into
formal environmental governance processes does however pose its own challenges and
failure to do so effectively can contribute to undermining the very governance gains that
broadening participation in environmental affairs is in part geared to deliver.20
Fourth and finally, the rise and spread of information technology has arguably funda-
mentally altered the way in which information (including environmental information) is
collected, held, disseminated, and used. Some commentators even go so far as to contend
that the use of information technology has structurally altered the relationships involved in
these processes,21 at the same time creating a ‘new public realm’.22 One need not however
go this far—for present purposes it suffices to say that information technology is fundamen-
tally altering the functioning of the public domain in numerous ways—and that it seems
likely to continue to do so. One important aspect of this is that the global connectivity of the
internet means that the ability to exercise control over information is both considerably
more limited than in time past and that information-holding is subject to a range of new
vulnerabilities, including those associated with hactivism,23 hacking,24 cybercrime,25 cyber-
terrorism, and cyberwarfare broadly defined.26 While these go beyond the scope of the
present chapter, it is clear that various classes of environmental information may be subject
to such vulnerabilities and that the environment may be adversely affected by the results of
many of these activities, for example if they were to be directed at major infrastructure, such
as water supply.
In consequence of these (and other) developments, the challenges of engaging with the
complex, multiple, interwoven issues posed by information have never been greater. In cog-
nizance of the features identified above, the analysis adopted in this chapter identifies the
key issue arising in the taxonomy of environmental information as focused on questions of
control (and the surrender or loss thereof); considering, centrally, the shifts in and from
state dominance of the arena to a more diffuse system. Discussion is therefore couched in
19 G. Bohme, Invasive Technification: Critical Essays in the Philosophy of Technology, trans. C. Shingleton
(London: Bloomsbury, London, 2012), 34–51 on the relationship between information and knowledge;
D. Slater, New Media, Development & Globalization (Cambridge: Polity, 2013), 5, 179–80.
20 S. L. Senecah, ‘The Trinity of Voice: The Role of Practical Theory in Planning and Evaluating the
Effectiveness of Environmental Participatory Processes’ in S. P. Depoe, J. W. Delicath, and M.-F. Aepli
Elsenbeer (eds.), Communication and Public Participation in Environmental Decision Making (Albany:
State University of New York Press, 2004), 13–33.
21 Slater, New Media, Development & Globalization, at 10.
22 Bohme, Invasive Technification, at 17.
23 Defined by the Oxford Dictionary as ‘gaining unauthorized access to computer files or networks to
further social or political aims’. See generally T. Jordan and P. A. Taylor, Hactivism and Cyber Wars: Rebels
with a Cause? (London: Routledge, 2004); for an example arising in an environmental context, see
Wikileaks, ‘Secret Trans-Pacific Partnership Agreement (TPP) (Environment Consolidated Text) online
at https://wikileaks.org/tpp-enviro/.
24 Defined by the Oxford Dictionary as ‘gaining unauthorized access to data in a system or computer’
and motivated by multifarious ends too numerous to discuss here, see M. Yar, Cybercrime and Society
(London: SAGE, 2nd edn. 2013), chapter 2.
25 See e.g. XL Group Insurance, ‘Environmental Risks: Cyber Security and Critical Industries’ (2013),
available at: xlcatlin.com/~/media/fff/pdfs/environmental_cyber-risks_whitepaper_xl.pdf, which focuses
on the practical risks posed by certain classes of cyber activity to the environment.
26 For a comprehensive overview of the latter categories see L. J. Janczewski and A. M. Colarik (eds.),
Cyber Warfare and Cyber Terrorism (New York: Information Science Reference, Hershey, 2008).
the recognition that the concept of informational control, which may be understood as
‘regulation by revelation’27 has undergone enormous change and proliferation in recent
years and continues to develop apace, with massive ramifications for the functioning of
environmental governance. To that end, the chapter primarily discusses the established and
evolving role of states as prime actors, but also alludes to aspects of the traditional and
developing role of companies (as mandated information disclosure extends but voluntary
disclosure as a means of controlling reputation and as a marketing device is also increasingly
in evidence); and the rapidly growing role of the public (both collectively, through NGOs
and as individuals) with respect to environmental information which facilitates holding
both states and companies to account for their environmental claims and performance.
43.2 The State and Informational

Requirements
Though, as mentioned above, a more nuanced picture has now emerged and continues to
develop, for now, states remain the prime movers in the context of the control of environ-
mental information. Once information is submitted to any governmental process, in addition
to the part that it plays in informing regulation, it passes out of the control the individual or
entity that supplied it and into that of the state and potentially into the public domain. Such
information may, as alluded to above, fall subject to a variety of legal control regimes. In
current practice, such information will often be subject to either or both active/proactive or
passive/reactive disclosure, unless it qualifies under narrowly drawn exceptions. The collection
and dissemination of such information—which exists both as a by-product of the state’s
regulatory role and as a direct result of its broader environmental governance functions,
effectively sees the state cast as the controller or gate-keeper determining matters concerning
the public release of material so garnered.
Comparative law analysis of a given topic is often pursued by considering the cultural,
historical, and political contexts of the states whose provision one seeks to appraise.28 In
regard to general access to information provision this offers some insight as encapsulating
access to government-held information (as we now recognize it) certainly enjoys a long, if
somewhat patchy29 history with its origins as early as the eighteenth century in Sweden,
though even in reputably open Scandinavia, this is very much an outlier.30 Nonetheless,
more widespread roll out of access to information provision has a pedigree stretching back
decades, with the wave of state action which began in the early to mid-1960s (characterized
by provisions such as Denmark’s Law on Party Access in Administration 1964 and the
27 A. Forini, ‘The End of Secrecy’ (1998) 111 Foreign Policy 50–63.
28 A. D. Tarlock and P. Tarak, ‘An Overview of Comparative Environmental Law’ (1983–84) Denver
Journal of International Law & Policy 85, at 90.
29 Jørgensen, Access to Information in the Nordic Countries, discusses the long history of (fairly) open
access to information in the Scandinavian countries, but this was the exception rather than the rule.
30 Ibid., at 10, points out that the other Scandinavian nations did not follow suit until the mid-to
late-twentieth century.
978 karen morrow
United States’ adoption of a Freedom of Information Act 196631) continuing to this day.32
Fortuitously the genesis of these developments roughly coincided with the rise of modern
popular environmentalism.33 Thus the scene was set for a higher profile notion of access to
information provision more generally and for questions of access to environmental informa-
tion to garner particular attention. A rash of environment-focused information provision
subsequently emerged, with key developments ranging from those under the US National
Environmental Policy Act 1969, to regimes such as that under the EC Council Directive
90/313/EEC on freedom of access to information on the environment.34 That said, progress
on paper and on the ground was of course variable, given the disparate starting points of
individual states and regional entities and the fact that their degree of engagement with the
issues differed considerably.35
43.3 Principle 10 of the Rio Declaration

and Modern State-based Access to
Environmental Information
43.3.1 Introduction
Interesting as the state-based developments discussed above are, at this point they represent
something of a cul-de-sac and thus provide comparatively limited insight into where we find
ourselves now where access to information is concerned and still less on future develop-
ments. This is because the legal landscape with respect to environmental information has
been profoundly re-shaped36 by developments pursuant to the new approach towards pub-
lic participation in environmental matters spawned by the UN Conference on Environment
and Development (UNCED) in Rio in 1992, and specifically by Principle 10 of the Rio
Declaration.37 This states that:
31 See D. Banisar, ‘Freedom of Information Around the World 2006: A Global Survey of Access to
Government Information Laws’, Privacy International, available at: http://www.freedominfo.org/wp-
content/uploads/documents/global_survey2006.pdf.
32 See http://www.freedominfo.org/ which refers to Tanzania’s National Assembly approval of an
access to information bill on 8 September 2016.
33 See e.g. T. R. Dunlap (ed.), DDT, Silent Spring and the Rise of Modern Environmentalism: Classic
Texts (Seattle: University of Washington Press, 2008).
34 OJ L 158, 23.6.90. Compliance with Directive 90/313 proved problematic and even where formal
compliance was achieved the quality of state action was often questionable—report of the Commission
to the European Parliament and to the Council on the experience gained in the application of Directive
90/313/EEC accompanied the proposal (COM (2000) 400 final of 29 June 2000).
35 R. Hallo, Access to Environmental Information in Europe: The Implementation and Implications of
Directive 90/313/EEC (The Hague: Kluwer law International, 1996).
36 K. Morrow, ‘Procedural Human Rights in International Law’ in A. Grear and L. Kotze (eds.),
Research Handbook on Human Rights and the Environment (Cheltenham: Edward Elgar, 2015), 200–18.
37 United Nations Declaration on Environment and Development, at: http://www.unep.org/Documents.
Multilingual/Default.asp?documentid=78&articleid=1163.
Environmental issues are best handled with the participation of all concerned citizens, at the
relevant level. At the national level, each individual shall have appropriate access to informa-
tion concerning the environment that is held by public authorities, including information on
hazardous materials and activities in their communities, and the opportunity to participate
in decision-making processes. States shall facilitate and encourage public awareness and
participation by making information widely available. Effective access to judicial and admin-
istrative proceedings, including redress and remedy, shall be provided.38
Access to environmental information is obviously a central feature of the trinity of partici-

pation rights invoked in Principle 10. While the rise of rights to public participation in
environmental decision-making signalled by Principle 10 clearly keeps the role of the state
firmly centre-stage, continuing to frame government as the collector, broker, and disseminator
of environmental information, they also initiated a paradigm shift in the way in which
both the state’s role in this regard and the nature and status of such information is regarded.
Instead of the state collecting and ‘corralling’ information solely for its own purposes, in
invoking public rights of access to information as the foundation for broader participation
rights, Principle 10 in effect recasts the state’s role in this regard, adding the function of
facilitating public access to its remit. At the same time, it re-characterizes information itself
as an explicit part of the public domain, germane to both discrete regulatory and wider
governmental functions, initiating a significant shift in environmental governance by
providing a stronger foundation for citizens to pursue state accountability in this sphere.
Of course, neither the Rio Declaration nor Principle 10 emerged fully formed from the
ether—they were prefigured in regional initiatives that, while dominated by activity in
Europe, ranged across the globe.39 Nevertheless, the Rio Declaration arguably initiated a
step change in the status of public participation in environmental decision-making and it
was adopted by consensus among the 172 states40 who attended the UNCED, which, its soft
law status notwithstanding, indicated support for its content on a global scale. Additionally,
the soft law of Principle 10 was echoed, albeit in hortatory terms, at the UNCED itself in the
hard law Framework Convention on Climate Change41 and it has since featured in numerous
other multilateral environmental agreements.42
The UN has constantly reiterated its support for the implementation of Principle 10, not
least at national and regional level, as for example in the Rio+20 Outcome Document, ‘The
Future We Want’43 and has revisited it in greater detail, seeking to encourage and facilitate
38 Ibid., Principle 10.

39 e.g. in Principle 27 of the Ministerial Declaration on Environmentally Sound and Sustainable
Development in Asia and the Pacific, Bangkok, 16 October 1990, A/CONF.151/PC/38 and in specific
access to information provisions in six multilateral environmental agreements (three under the auspices
of the UNECE) adopted in 1991–92 see P. H. Sand, ‘The Right to Know: Freedom of Environmental
Information in Comparative and International Law’ (2011–12) 20 Tulane Journal of International and
Comparative Lae 203, at 216.
40 http://www.un.org/geninfo/bp/enviro.html.
41 Article 6 United Nations Framework Convention on Climate Change, May 9, 1992, 1771 UNTS 107.
42 e.g. Art. 16 UNECE Convention on the Protection and Use of Transboundary Watercourses and
International Lakes 1992 1936 UNTS 269; Arts. 15 and 16 ILO (C174) Convention on the Prevention of
Major Industrial Accidents 22 June 1993, 1967 UNTS 231.
43 Outcome document of the United Nations Conference on Sustainable Development: The Future
We Want (2012), available at: http://rio20.net/en/iniciativas/the-future-we-want-final-document-of-the-
rio20-conference/, in particular, paras. 17, 18, 58, 61.
980 karen morrow
its roll-out by states in the (developing country-focussed) 2010 UNEP Guidelines for the
Development of National Legislation on Access to Information, Public Participation and
Access to Justice in Environmental Matters44 (the Bali Guidelines) and the 2015 Implemen
tation Guide.45 Other influential international organizations also subscribe to and continue
to pursue the participation ethos of Principle 10.46 Such widespread promotion by the inter-
national polis, coupled with capacity building initiatives, while not curtailing states’ freedom
to act otherwise, inevitably fosters a degree of commonality in pursuing the implementation of
Principle 10.
The nature and content of the trinity of rights invoked by Principle 10 promoting public
participation in environmental governance has instigated a range of interesting law and
policy developments. Not least, if somewhat obliquely, it has played a part in reinvigorating
and stimulating the invocation of more general (human) rights with regard to information
in environmental contexts.47 This is demonstrated in case-law that has emerged under
regional human rights regimes: notably under the European Convention on Human Rights
(ECHR)48 and the American Convention on Human Rights.49
In more specific terms, Principle 10 has also prompted considerable, if not universal,50
soft law support across a range of regional political organizations, notably in the UNECE 1995
Guidelines on Access to Information and Public Participation in Environmental Decision-
Making (the Sofia Guidelines);51 the 2001 Inter-American Strategy for the Promotion of
44 Adopted by the Governing Council of the United Nations Environment Programme in decision
SS.XI/5, part A of 26 February 2010, available at: http://www.unep.org/civil-society/Portals/24105/docu-
ments/Guidelines/GUIDELINES_TO_ACCESS_TO_ENV_INFO_2.pdf.
45 UNEP, ‘Putting Rio Principle 10 into Action: An Implementation Guide’, available at: http://www.
unep.org/civil-society/Portals/24105/documents/BaliGuildelines/UNEP%20MGSB-SGBS%20BALI%20
GUIDELINES%20-Interactive.pdf.
46 Notably the World Bank, see L. Schaffer: ‘Promoting Active Citizenry—Advocacy and Participation
in Decision Making’ in Getting to Green—A Sourcebook of Pollution Management Policy Tools for Growth
and Competitiveness (2012), available at; http://www.worldbank.org; and the World Trade Organization,
see G. Marceau and M. Hurley, ‘Transparency and Public Participation in the WTO: A Report Card on
WTO Transparency Mechanisms’ (2012) 4(1) Trade, Law & Development 19.
47 Sand, ‘The Right to Know, at 214 et seq.
48 e.g. Guerra and others v Italy, 19 February 1998, 14967/89 referring to Art. 8 (respect for private
and family life and home) Convention for the Protection of Human Rights and Fundamental Freedoms,
4 November 1950, 213 U.N.T.S. 221.
49 e.g. Claude Reyes et al. v Chile, Inter-Am. Ct. H.R. (ser. C) No. 151, para. 174 (19 September 2006)
referring to Art. 13 (freedom of thought and expression), American Convention on Human Rights,
22 November 1969, 1144 U.N.T.S. 17, 955.
50 ECE/CEP/24, available at: http://www.unece.org/fileadmin/DAM//env/documents/1995/cep/ece.
cep.24e.pdf. As an impressionistic indicator of the importance that the various UN regional commis-
sions attach to Principle 10 of the Rio Declaration: the ECE website hits 3,680 references to it; the
Economic Commission for Latin America and the Caribbean (UNECLAC) identifies 926 references; in
marked contrast the Economic and Social Commission for West Asia (ESCWA) identifies only five ref-
erences to it and the Economic and Social Commission for Asia (ESCAP) and United Nations Economic
Commission for Africa (UNECA) identify no results. Site search on 21 October 2016.
51 In fairness the Sofia Guidelines appear to have been regarded as an interim measure from the out-
set, pending the agreement of a hard law instrument; see J. Jendroska, UN ECE Convention on Access to
Information, Public Participation in Decision-making and Access to Justice in Environmental Matters,
International Network for Environmental Compliance and Enforcement, Fifth International Conference
on Environmental Compliance and Enforcement, 153–60 at 154, available at: https://www.inece.org/
Public Participation in Decision-making for Sustainable Development (ISP);52 and the Latin
America/Caribbean focussed 2012 Declaration on the application of Principle 10 of the Rio
Declaration on Environment and Development.53 Other less choate activity is also identifi-
able, for example in Africa, where a dearth of Principle 10-specific regional activity is offset
to some degree by sub-regional and national initiatives.54
Principle 10 approaches have also been followed through (to varying degrees) a whole
range of states across the globes. Full comparison of the many initiatives adopted are beyond
the scope of this chapter, but much comparative analysis has already been done in this area
and good illustrative coverage of developments in this area can be drawn from a 2008 World
Resources Institute Report on Environmental Democracy,55 which examines praxis on
environmental democracy drawing on a variety of jurisdictions across the developed and
developing world and accords prominent coverage to access to information.
43.3.2 Principle 10 in Regional Hard Law

The origin and more especially the ongoing influence of Principle 10 make a strong case for
it marking the genesis of modern approaches to informational provision in environmental
law. In the context created by the adoption of Principle 10, the nascent discipline of com-
parative international law56 provides a useful framing for comparative analysis of current
and future environmental information provision. Mamlyuk and Mattei describe compara-
tive international law as concerned with ‘the study of alternative approaches to dominant
governance paradigms’.57 They argue that the heterogeneity of the pursuit of international
law arguably makes it ‘possible to compare one vision of international law with another vision,
and such an effort claims its own academic identity as one of the comparative disciplines,
namely comparative international law’.58 The development of environmental information
law arguably creates an opportunity to extend comparative international law beyond the
‘soft law actor’ and ‘vision’ contexts promoted by Mamlyuk and Mattei, through comparison of
established and emerging regional hard law made manifest to pursue the legal incarnation
of Principle 10.
At a regional level, the first focused hard law initiative to secure the implementation (and
thus augment the status) of Principle 10, saw the United Nations Economic Commission for
library/show/579d26c35f0f6. Jendroska served as the Vice-Chair of the Working Group negotiating the
Aarhus Convention.
52 Organisation of American States, Inter-American Strategy for the Promotion of Public Participation
in Decision-making for Sustainable Development, available at: https://www.oas.org/dsd/PDF_files/
ispenglish.pdf.
53 A/CONF.216/13, available at: http://www.cepal.org/rio20/noticias/paginas/8/48588/Declaracion-
eng-N1244043.pdf.
54 See ELI, ‘Governance in Africa: Access to Information, Public Participation, and Access to Justice’,
available at: http://www.eli.org/africa-program/governance-africa-access-information-public-participation-
and-access-justice#africa-wide.
55 J. Foti with L. de Silva, H. McGray, L. Schaffer, J. Talbot, and J. Werksman, ‘Voice and Choice:
Opening the Door to Environmental Democracy’ World Resources Institute (2008), available at: http://
pdf.wri.org/voice_and_choice.pdf.
56 B. N. Mamlyuk and U. Mattei, ‘Comparative International Law’ (2010–11) 36 Brooklyn Journal of
International Law 385.
57 Ibid., at 391. 58 Ibid., at 451.
982 karen morrow
Europe (UNECE) translate the ethos and content from its soft law origins in Principe 10 and
the Sofia guidelines, into the Convention on Access to Information, Public Participation in
Decision-making and Access to Justice in Environmental Matters, 199859 (hereafter the
Aarhus Convention). The Aarhus Convention was drafted relatively swiftly, with work
beginning in earnest at the ECE Committee on Environmental Policy Special Session in
1996.60 That said, the Convention was grounded not only in the soft law referred to above,
but also in the UNECE’s long engagement with facilitating public participation in environ-
mental issues, honed in environmental assessment,61 and the broader (and still ongoing)
Environment for Europe Process,62 launched in 1991. The drafting process also arguably owed
its initial momentum, at least in part,63 to the opportunities and challenges presented in
respect of environmental governance issues, amongst others, raised by the fall of the Soviet
bloc and subsequent negotiations on the enlargement of the European Union (EU).64
Significantly, in developing the Aarhus Convention, the UNECE put a broad participation
agenda centre stage in its own work, fully informing and involving not only its constituent
states but also NGOs (organized in a highly consultative coalition under the European ECO
Forum65) in the negotiating process. This commitment extended from responding to
NGOs’ initial call for action; to facilitating their active involvement in the creation of the
Sophia Guidelines;66 through the preparations for and negotiation of the Convention in
which they were (highly unusually in an international law-making context) largely accorded
status akin to that of state participants;67 to its subsequent working. The Convention arguably
benefitted significantly from the consistent and exhaustive involvement of this core user
constituency in its development, not least in aiding its fitness for purpose.68 Not only is the
role of NGOs recognized alongside that of the public more generally in the Convention’s
preamble, they gain parallel status throughout the Convention,69 and their ‘recognition and
support’70 by signatories and participation as observers in meetings of the Parties71 are
provided for. NGOs and the public enjoy rights to access information, to participate, and to
59 25 June 1998, 2161 U.N.T.S. 447.

60 Report on the Special Session, ECE/CEP/18, 8 February 1996, available at: http://www.unece.org/
fileadmin/DAM//env/documents/1996/cep/ece.cep.18.e.pdf.
61 Notably the Convention on Environmental Impact Assessment in a Transboundary Context (the
Espoo Convention) 25 February 1991, 1989 UNTS 309.
62 First Ministerial Conference ‘Environment for Europe’, available at: http://www.unece.org/env/efe/
historyofefe/history.en1991_01.html#/.
63 See Jendroska, UN ECE Convention on Access to Information.
64 See J. Carmin and S. D. VanDeveer (eds), EU Enlargement and the Environment: Institutional
Change and Environmental Policy in Central and Eastern Europe (London: Routledge, 2005) and in par-
ticular J. M. Kramer, ‘EU Enlargement and the Environment: Six Challenges’, at 209–311 and J. Ebbesson,
‘The EU and the Aarhus Convention: Access to Information, Public Participation in Decision-making
and Access to Justice in Environmental Matters’, available at: http://www.europarl.europa.eu/RegData/
etudes/BRIE/2016/571357/IPOL_BRI(2016)571357_EN.pdf.
65 J. Wates, ‘NGOs and the Aarhus Convention’ in T. Treves, M. Frigessi di Rattalma, A. Tanzi,
A. Fodella, C. Pitea, and C. Ragni (eds.), Civil Society, International Courts and Compliance Bodies (The
Hague: T.M.C. Asser Press, 2005), 167–85, at 178.
66 Ibid. 67 Ibid.
68 UNECE, ‘First Meeting of the Parties to the Aarhus Convention’, available at: http://www.unece.
org/press/pr2002/02env11e.html; B. Schmögnerová, ‘Opening Remarks’ 21–23 October 2002.
69 As is clear from their inclusion in definitional Arts. 2.4, 2.5 and in respect of access to justice, Art. 9.2.
70 Article 3.4. 71 Article 10.5.
pursue access to justice, including to right to raise compliance issues.72 NGOs also have the
right to nominate individuals for election to the regime’s innovative compliance committee.73
The Aarhus Convention regime, although regionally rooted, is fundamentally outward
looking and proselytizing in its approach. Significantly, not only does Article 19(3) of the
Convention create the possibility of accession by non ECE states; Article 3(7) also obliges
signatories to promote the Convention’s values ‘in international environmental decision-
making processes and within the framework of international organizations in matters relating
to the environment’, augmenting its potential to seek to influence developments elsewhere.
The Aarhus regime machinery also engages enthusiastically with international processes74
to spread best practice; and in promoting Principle 10 initiatives in other UN regional bod-
ies.75 In these ways, over time, Aarhus has (as we shall see below) begun to fulfil its ambition
to promote the extension of hard law coverage for Principle 10 rights, though not as apparently
envisaged, by extending its own reach. Aarhus rights-based developments have also been
embraced at regional level by the EU as a signatory to the Convention,76 requiring their
implementation by and raising challenges for both EU institutions77 and its Member States78
in various contexts. In practical terms, the Aarhus Convention saw the idea of specific
information rights brought centre-stage in the environmental context as the ‘first pillar’ of
the regime—we will consider its key elements below.79
After well over a decades’ discussion of the benefits of the Aarhus approach,80 but little
further progress, significant development in the pursuit of regional international hard law
on Principle 10 of the Rio Declaration finally emerged in the run-up to Rio+20. At the
72 S. Kravchenko: ‘The Aarhus Convention and Innovations in Compliance with Multilateral
Environmental Agreements’ (2007) 18(1) Colorado Journal of International Environmental Law & Policy 10.
73 Decision 1/7 on the review of compliance Doc. ECE/MP.PP/2/Add.8; Art. 10(5) of the Convention;
and UNECE, ‘Guidance Document on the Aarhus Convention Compliance Mechanism’ (2010), available
at: https://www.unece.org/fileadmin/DAM/env/pp/compliance/CC_GuidanceDocument.pdf, 5.
74 See e.g.the UNECE Aarhus Convention Secretariat submission to the report being prepared by the
Office of the High Commissioner for Human Rights pursuant to resolution 19/20, ‘The role of good govern-
ance in the promotion and protection of human rights’ (2012), available at: http://www.ohchr.org/Documents/
Issues/Development/GoodGovernance/Corruption/ECONOMIC_COMMISSION_FOR_EUROPE.pdf.
75 Notably UNECLAC, see e.g. the report of the Meeting of Parties of the Aarhus Convention on the
Side event: ‘Implementation of Principle 10 and the Aarhus Convention’, Maastricht, 2 July 2014, available
at: http://building-bridges.rec.org/documents/Report_on_Side_event.pdf.
76 See e.g. A. Berthier and L. Krämer, ‘The Aarhus Convention: Implementation and Compliance in
EU law’, Client Earth (2014), available at: http://www.clientearth.org/reports/20141028-the-aarhus-
convention-implementation-and-compliance-in-EU-law.pdf.
77 Regulation 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
OJ L214/13 25 09 2006. Institutional compliance has proved problematic in some respects, see e.g.
Ebbesson, ‘The EU and the Aarhus Convention’, at 8–9.
78 Notably under Directive 2003/4/EC of the Parliament 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. OJ L41/26 14 02 2003. Ebbesson, ‘The EU and the Aarhus Convention’, points out
that compliance issues are raised across the whole range of Member States, at 7–8.
79 M. Mason, ‘Information Disclosure and Environmental Rights: The Aarhus Convention’ (2010)
10(3) Global Environmental Politics 10–31.
80 Widely endorsed by the great and the good, see UNECE, ‘What People are Saying About the Aarhus
Convention’, at: https://www.unece.org/fileadmin/DAM/env/pp/documents/statements.pdf.
984 karen morrow
Conference the Declaration on the application of Principle 10 of the Rio Declaration on

Environment and Development in Latin America and the Caribbean81 was issued, reiterat-
ing the commitment of signatory states in the region to Principle 10, but significantly going
further and recognizing the need for ‘agreements to ensure the full exercise of rights of
access’. To this end the Declaration set in motion, as was the case with the drafting of the
Aarhus Convention, considered above, an open (embracing not just states but also non-state
actors and civil society) and highly participatory process82 (with the Economic Commission
for Latin America and the Caribbean (ECLAC) functioning as its secretariat) to examine
the feasibility of a regional agreement for South America geared to securing the full imple-
mentation of Principle 10.83 A plethora of supporting and scoping documentation followed
in short order, notably: the 2012 Road Map—laying out the main principles and objectives
of projected regional instrument;84 the 2013 Lima vision, linking access rights, environmental
protection, and human rights;85 a 2013 Plan of Action;86 and the 2014 Santiago Decision.87
81 Rio+20 United Nations Conference on Sustainable Development: Annex to the note verbale dated
27 June 2012 from the Permanent Mission of Chile to the United Nations addressed to the Secretary-
General of the United Nations Conference on Sustainable Development, Declaration on the application
of Principle 10 of the Rio Declaration on Environment and Development A/CONF.216/13, 25 July 2012.
82 For a brief overview of the open and inclusive working processes involved, see ECLAC,
Negotiation of a regional agreement on access rights in environmental matters in Latin America and the
Caribbean (LAC Principle 10), available at: https://www.unece.org/fileadmin/DAM/env/pp/wgp/WGP-
20/Statements_and_Presentations/ECLAC_StatementAarhus_June_2016.pdf. See also the copious docu-
mentation of the process on the ECLAC website at: http://www.cepal.org/en/principio-10. Furthermore, it
is possible to track participation as the information garnered is accessible: ‘All the original communications
received from the countries, as well as the inputs submitted by the public, may be consulted online at http://
www.cepal.org/en/input-preliminary-document, http://negociacionp10.cepal.org/%202/en/additional-
input-for-the-meeting, http://negociacionp10.cepal.org/3/en/node/16, http://negociacionp10.%20cepal.
org/4/en/additional-input and http://negociacionp10.cepal.org/5/en/additional_input’ as stated in each
draft version of the agreement text (see e.g. n. 89, at 4). It is however remarkable that, in contrast to the
development of the Aarhus regime and openness notwithstanding, NGOs and civil society do not feature
much in the draft text, with references to the former in Art. 2 (Definitions) (where, importantly, NGOs are
explicitly included in the definition of ‘public concerned’) and Art. 10 (Capacity building and cooperation).
Peru has explicitly sought specific reference to the civil society alongside indigenous peoples (in the alterna-
tive to NGOs) in Arts. 10 and 16 (Consultative groups or subsidiary bodies).
83 See n. 81.
84 Road Map for the Formulation of and Instrument on the Application of Principle 10 in Latin America
and the Caribbean (2012), available at: http://www.cepal.org/prensa/noticias/comunicados/7/48317/2012-
855-Rio☐20_Road_map.pdf.
85 ECLAC, Third meeting of the focal points appointed by the Governments of the signatory coun-
tries of the Declaration on the application of Principle 10 of the Rio Declaration on Environment and
Development in Latin America and the Caribbean: Lima Vision for a Regional Instrument on Access
Rights Relating to the Environment, 32 October 2013, available at: http://www.cepal.org/rio20/noticias/
noticias/2/50792/2013-914_P10_LIMA_vision.pdf, para. c.
86 ECLAC, Plan of Action to 2014 for the Implementation of the Declaration on the Application of
Principle 10 of the Rio Declaration on Environment and Development in Latin America and the
Caribbean and its Road Map, available at: http://www.accessinitiative.org/sites/default/files/2013-208_
pr10-plan_of_action-17_april.pdf.
87 ECLAC, Fourth meeting of the focal points appointed by the Governments of the signatory coun-
tries of the Declaration on the application of Principle 10 of the Rio Declaration on Environment and
Development in Latin America and the Caribbean 10 November 2014, available at: http://repositorio.
cepal.org/bitstream/handle/11362/37214/S1420707_en.pdf?sequence=1.
This important initiative on access to environmental information is also set against the fore-
grounding of access to information issues in Latin America and more generally.88
The negotiation of a hard law instrument pursuing the implementation of Principle 10 in
Latin America and the Caribbean is of course hugely significant. For present purposes, it is
also important in providing an opportunity to apply the developing conception of com-
parative international law in the context of emerging regional hard law on informational
requirements as it, at last, gives us a direct point of comparison with the Aarhus Convention.
The working draft convention is at the time of writing in its fifth iteration89 following the
sixth meeting of the negotiating committee in Brasilia in March 2017, which progressed
several key areas, notably for present purposes, Article 6—access to information90 and
Article 7—generation and dissemination.91
43.3.3 Key Features of the Aarhus and draft ECLAC

Conventions (DEC)
Space precludes a minute appraisal of the Aarhus and DEC Conventions here, but an illus-
trative comparison of their key provisions relating to access to information is enlightening.
88 See e.g. the inaugural International Day for Universal Access to Information in Latin America, part
of UNECSO’s world-wide International Day for Universal Access to Information, 28 September 2016,
available at: http://unesdoc.unesco.org/images/0023/002352/235297e.pdf.
89 ECLAC, Sixth meeting of the negotiating committee of the regional agreement on access to infor-
mation, participation and justice in environmental matters in Latin America and the Caribbean, Brasilia
20–4 March 2017, LC/L.4059/Rev.4 27 December 2016. Text Compiled by the Presiding Officers
Incorporating the Language Proposals Received from the Countries in the Preamble and Articles 1 to 10
of the Preliminary Document on the Regional Agreement on Access to Information, Participation and
Justice in Environmental Matters in Latin America and the Caribbean, Fifth Version, available at: http://
repositorio.cepal.org/bitstream/handle/11362/39051/LCL4059Rev4_en.pdf?sequence=20&isAllowed=y.
90 Article 6 contains seventeen paragraphs: of these, paras. 3, 4, 6, 8, 10, 11, 12, 13, and 15 are agreed; and
paras. 1, 2, 5, 7, 9, 14, and 16 remain contentious. Article 6 para. 5 which deals with the particulars of the
exceptions regime reveals marked differences among the negotiating states on the basis for total or partial
refusal of requests. While national legislative requirements are placed centre-stage, eight of the thirty-
three favour exceptions on that basis for ‘reserved or confidential’ material. Five seek exceptions invoking
‘the fundamental right of individuals’ on a higher ‘substantial harm’ rather than the suggested ‘adverse
effect’ threshold. Eight seek exceptions on national security/national defence/public order/public safety
safety/public health/international relations/the national economy, again on a higher ‘substantial harm’
rather than the suggested ‘adverse effect’ threshold. Twelve seek exceptions relating to the ‘protection of
the environment’ with five specifically seeking on a higher ‘substantial harm’ rather than the suggested
‘adverse effect’ threshold; and nine for matters deemed ‘secret or confidential’ in domestic law. Bar the
protection of the environment exception, which also gains support from Brazil, Uruguay, Dominican
Republic, Mexico, Costa Rica, and Chile, and the secrecy/confidentiality exception which is also sup-
ported by Chile, Mexico, Jamaica, and Panama, the majority of demands for higher thresholds for specific
concessions originate in Antigua and Barbuda, Grenada, Jamaica, Saint Kitts and Nevis, Saint Vincent and
the Grenadines, and Trinidad and Tobago, demonstrating a more limited approach to the operation of
exceptions in these nations than that deemed acceptable by the majority of the negotiating states.
91 Article 17 contains thirteen paragraphs: of these, paras. 1, 2, 3, 5, 6, 10, 12, and 13; paras. 4 and 7 are
partially agreed; and paras. 8 and 9 remain contentious. The draft of Art. 11 contains no highlighted text
indicating points for contestation, but the record does not indicate that it is agreed.
986 karen morrow
As alluded to above, both conventions invoked open, participatory, negotiating processes.92

Indeed in terms of transparency, access to information is central to the DEC process even
at the negotiation stage, as indicated by the fact that the introductory material on each of
the DEC drafts concludes by pointing to the availability of all contributions to the process
of compiling them.93
As one would expect, as both regimes seek to embody Principle 10, they have a great deal
in common, not least in respect of their preambular recitals, both of which make explicit
(and in the case of the DEC oft-repeated) reference to the aforementioned principle.94
Likewise, both preambles locate participation rights firmly within a broader human rights
milieu, though the DEC document does so in more explicit and emphatic terms, in part
reflecting the rise to prominence of the environment/human rights nexus that has become
prominent since the Aarhus Convention was adopted.95 This goes some way to explaining
the difference in emphasis between the two regimes in this area: the Aarhus Convention
confines mention of general human rights to a single instance in the preamble96 (though it
does refer to its aspiration to use participation rights to ‘contribute to the protection of the
right of every person of present and future generations to live in an environment adequate
to his or her health and well-being’—in Article 1). The Fifth version of the DEC refers to
human rights more broadly, repeatedly in the preamble97 and in substantive provision in
Article 5.1, which delineates the obligation of the parties to:
ensure the full enjoyment of the right of all individuals to live in a healthy and sustainable
environment that enables them to guarantee their health and well-being and effective enjoyment
of their human rights in harmony with nature.98
The final clause of this sentence points to an important ideological difference between the
regimes, being expressive of a cosmologically distinct strand in South American environmen-
tal thought that locates humanity very firmly as part of nature and explicitly emphasizes the
need to undertake human endeavour in concord with the natural world.99
Another significant commonality between the regimes, as is to be expected of international
law instruments, is the focus on the obligations of states, specifically through the functions of
public authorities. Both regimes frame state obligations in passive (facilitating public requests
92 See, Schmögnerová, ‘Opening Remarks’ on the Aarhus Convention and the heavily annotated text
for the DEC, n. 89.
93 See n. 89, at 4.
94 Aarhus Convention Preamble para. 3; ECLAC Draft Convention, Preamble, paras. 3, 4, 5, 6, 7, 9, 14.
95 Aarhus Convention, Preamble para. 6; ECLAC Draft Convention Preamble para. 1 ante and paras.
9, 10, 20. For a concise overview, see the Report of the Independent Expert on the issue of human rights
obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, J. H. Knox,
Human Rights Council, 25th Session, Agenda Item 3, A/HRC/25/53, 30 December 2013.
96 Preamble, para. 6.
97 Currently, Preamble para. 1 ante; 9, 10, and 20 bis and reference to a ‘right to a healthy environment’
in Preamble para. 8, and Art. 1, though the particulars currently remain subject to discussion.
98 In Art. 5.1—though this is evidently contentious as thirteen potential signatories are advocating the
deletion of this paragraph. ‘Harmony with nature’ also features in Preamble para. 8.
99 Discussed in K. Morrow, ‘Peoples’ Sustainability Treaties at Rio+20: Giving Voice to the Other’ in
M. Maloney and P. Burdon (eds.), Wild Law—In Practice (Abingdon: Routledge, 2014), 45–57.
for information100) and active (placing public authorities under a duty to collect, disclose,
and disseminate information101) guises. Both regimes also prioritise the development and
exploitation of electronic data provision, perpetuating practical and culture change.102
A further distinction in regime coverage involves indigenous peoples; they are not
mentioned in the Aarhus regime but feature quite prominently in the DEC. This is largely
attributable to the fact that rights-based approaches to indigenous peoples have become
considerably more conspicuous103 in the period between the initiation of the two regimes.
More centrally, the definition of environmental information is an area where there are at
present potentially significant differences in approach between the two regimes, with the
Aarhus Convention’s broad, but economical, overarching three sub-paragraph definition
contrasting with the (thus far highly contested) nine more precisely delineated paragraphs
of the current version of the DEC. The latter is however still under debate and the draft DEC
also features a suggestion for a single overarching paragraph definition of information in
the alternative to the existing provision.104 At present it is not possible to say how this will
pan out. It is however significant that, a quarter of a century from the adoption of Principle
10, this perhaps most fundamental of issues remains so obviously and pervasively conten-
tious in the emerging DEC.
A further interesting point of departure between the two regimes lies in (in international
law contexts) always contentious question of compliance. The much admired105 Aarhus
Convention’s Compliance Committee (ACCC), was set up under the broadly drafted Article
15 and Decision 1/7 of the Meeting of Parties. Article 15 provides that:
The Meeting of the Parties shall establish, on a consensus basis, optional arrangements of a
non-confrontational, non-judicial and consultative nature for reviewing compliance with the
provisions of this Convention. These arrangements shall allow for appropriate public involve-
ment and may include the option of considering communications from members of the public
on matters related to this Convention.106
Thus constituted, the ACCC may consider compliance issues raised by: signatories,107 the
Convention Secretariat;108 and (exceptionally and innovatively in an international law
instrument) members of the public109 and make recommendations on them to the Meeting
of Parties. The DEC has opted to forgo the staged approach to creating a compliance
mechanism adopted by the Aarhus Convention, instead (perhaps building on such a devel-
opment now being regarded as an established modality in environmental access rights,
100 Article 4 Aarhus Convention; Art. 6 DEC. 101 Article 5 Aarhus Convention: Art. 7 DEC.
102 Aarhus Convention, Preamble para. 16 and Art. 5.3, which obliges parties to: ‘progressive’ avail-
ability of environmental information in electronic form; Art. 5.13 DEC, which encourages the use of:
‘new information and communications technologies, electronic government, social networks and social
and telematic media’ to ‘guarantee’ access rights.
103 Expressed e.g. in the 2007 United Nations General Assembly Resolution 61/295, United Nations
Declaration on the Rights of Indigenous Peoples, available at: http://www.un.org/esa/socdev/unpfii/
documents/DRIPS_en.pdf.
104 Article 2.3 paras. (a)–(c)Aarhus Convention; Art. 2 paras. (a)–(i) DEC.
105 See e.g. E. Morgera, ‘An Update on the Aarhus Convention and its Continued Global Relevance’
(2005) 14(2) Review of European Community and International Environmental Law 138–47.
106 See n. 73. 107 Ibid para. 15 108 Ibid., at para. 17. 109 Ibid., at para. 18.
988 karen morrow
rather than in any way experimental, thanks to the pioneering path ploughed by the ACCC)
thus far (and pending negotiation) directly mandating the creation of a ‘Facilitation and
Follow-up Committee’ (FFC) as a subsidiary body of the Conference of Parties. The puta-
tive FCC would be tasked with promoting implementation through ‘capacity-building and
cooperation’.110 Like its Aarhus counterpart, the FFC is envisaged as being ‘non-adversarial,
non-judicial and of a consultative nature’ and as currently framed, would carry out a similar
role to it. Most significantly for present purposes, this would extend to allowing ‘appropriate
participation by the public and review communications from the Parties, other entities of
the present Agreement and members of the public’.111
The DEC also features an interesting potential innovation on implementation in the form
of a committing to establishing a ‘peer review mechanism’ (PRM):
. . . to evaluate observance of the provisions of the present Agreement. The rules of operation
shall ensure effective participation by the public and will be established by consensus by the
Conference of the Parties no later than at its third meeting.112
This is very much in tune with the regional capacity building ethos that permeates the
whole DEC project. Questions remain however as to what this will add to the compliance
environment, the precise form that this will take, and how it will interface with the FCC and
the Conference of Parties. One certainty is that realizing the PRM’s participatory aim will
require a further manifestation within the DEC regime of an open approach to informa-
tional matters to fuel its activities.
In conclusion, taken broadly, while the Aarhus Convention and the DEC may differ on
matters of detail, partly attributable to the maturing of participatory rights and to the pecu-
liar characteristics of their originating regions, in principle, their approaches have a great
deal in common. They reflect the development of rights-based approaches to environmen-
tal information which at all levels have (at least in theory) considerably curtailed the ability
of states to operate environmental governance as a ‘closed shop’. Rights-based approaches
open environmental law, policy, and decision-making processes up to public participation
and scrutiny, and invoke increased transparency and the potential for more stringent
approaches to accountability—though (as considered above) the technical nature of much
of the information in question may well curtail the latter effects.
43.4 Companies, Non-regulatory

Information Disclosure, and the Public
43.4.1 State-mandated Information Disclosure

In addition to informational control exercised as an adjunct to mainstream regulatory pro-
cesses, states also exercise control over behaviour that generates environmental impacts by
compelling companies to disclose information to the public in other contexts. Such disclosure
is not directly linked to addressing pollution and other environmentally damaging activities,
110 Article 17.4 DEC. 111 Ibid. 112 Ibid., Art. 17.5.

rather it generates indirect impacts on company and public (especially consumer) behaviour
through exposing information relating to a firm’s practices or products113 to the public gaze,
often as a prerequisite for marketing them. Such information can exert pressure on firms to
self-regulate and address poor environmental performance114 by generating reputational
impacts that influence the public’s attitude to and consumption of a firm’s products115 and
in consequence its profitability and attractiveness to investors.116 An early example of this
type of provision, the toxic release inventory (TRI) was introduced by the 1986 US
Emergency Planning and Community Right to Know Act.117 Although the TRI was limited
in terms of its range of coverage, extending only to toxic substances, it was revolutionary in that
it imposed mandatory information provision requirements directly on private industrial
actors118 as a specific priority, rather than drawing such material into the public domain, for
dissemination by the state, as a by-product of other regulatory processes.119 Through the TRI
standardized, site-specific information generated on toxic chemical releases is made available
directly to the public through a computerized database, rather than mediated by the state120
as would be the case in information released as through regulatory endeavour. Karkkainen
examines the TRI from the point of view of its utility in addressing at least some of the sig-
nificant gaps that exist in environmental information and points to its very real benefits, in
taking ‘full advantage of the information-storage, processing, and manipulation capacities
of the Digital Age to create powerful new information tools at a very low cost’.121 The ration-
ale for this type of tool lies in utilizing information disclosure and consequent reputational
pressure to encourage firms to voluntarily reduce pollution—and results have been impres-
sive.122 That said, the TRI as pursued in the United States does have its limitations, not least
being that the data actually released are ‘are so crude as to be potentially misleading’.123
The UNCED, in line with its broader promotion of a participation agenda, recommended
the roll-out TRI-style approaches, again focused on the realm of toxic chemicals,124 and the
113 A. B. Killmer; ‘Designing Mandatory Disclosure to Promote Synergies Between Public and Private
Enforcement’, available at: http://www.inece.org/conference/7/vol2/55_Killmer.pdf.
114 Ibid., referencing empirical studies of the United States’ toxic releases inventory (TRI) and Indonesia’s
Program for Pollution Control, Evaluation and Rating (PROPER), at 2.
115 See e.g. S. Konar and M. A. Cohen, ‘Information as Regulation: The Effect of Community Right to
Know Laws on Toxic Emissions’ (1997) 32 Journal of Environmental Economics and Management 109–24.
116 See e.g. S. Konar and M. A. Cohen, ‘Does the Market Value Environmental Performance?’ (2001)
83(2) Review of Economics and Statistics 281–309.
117 Title 42, Chapter 116 of the U.S. Code.
118 The TRI also covers Federal facilities—see https://www.epa.gov/toxics-release-inventory-tri-program.
119 B. C. Karkkainen: ‘Bottlenecks and Baselines: Tackling Information Deficits in Environmental
Regulation’ (2008) 86 Texas Law Review 1409–44.
120 Though the regulator holds the information and promotes access to it.
121 Karkkainen: ‘Bottlenecks and Baselines’, at 1436.
122 A reduction of almost 50 per cent of listed substances has been observed since TRIs were introduced.
The TRI programme has however been subject to funding vagaries depending on the politic complexion of
the US government, with Republican administrations tending to be less supportive of it than Democratic
ones, see J. T. Hamilton, Regulation Through Revelation: The Origins, Politics, and Impacts of the Toxic
Release Inventory Programme (New York: Cambridge University Press, 2005).
123 Karkkainen: ‘Bottlenecks and Baselines’, at 1437.
124 Agenda 21, Chapter 19, ‘Environmentally Sound Management of Toxic Chemicals, Including
Prevention of Illegal International Traffic in Toxic and Dangerous Products’, available at: https://sus-
tainabledevelopment.un.org/outcomedocuments/agenda21.
990 karen morrow
OECD too has endorsed this type of initiative under the mantle of Pollution Release and
Transfer Registers.125
Indonesia was an early adopter, taking a similar but wider approach to that adopted in
the TRI, relating to over-all environmental performance, in its 1995 Program for Pollution
Control, Evaluation and Rating (PROPER). Interestingly, this initiative in part explicitly
envisaged public disclosure as aiding over-stretched regulatory agencies in calling industry
to account.126
Promising as early results with this type of approach were,127 they took a few years to
gain traction, though they are latterly being more widely endorsed. The EU, for example,
introduced the European Pollution Emission Register (EPER) in 2000,128 though this was
rapidly replaced (in response to action by the UNECE, discussed below) by the considerably
expanded European Pollutant Release and Transfer Register129 (E-PRTR) in 2007.
China130 too has been employing mandatory public disclosure of information by firms,
and has specifically harnessed this to the use of indicators,131 to develop a ‘policy instrument
to extend local monitoring and enforcement systems beyond environmental protection
agencies to engage more stakeholders’.132 The Chinese experience appears to endorse the idea
that mandatory information disclosure allows the state to invite the public (as individuals
and through NGOs) to enlist as a species of surrogate regulator, aiding comparatively weak/
over-stretched public authorities, in a context where public activism is relatively constrained
and entertained in line with government priorities.133 Whether the Chinese model is readily
applicable in other governance contexts is however open to question.134
In 2003, the UNECE turned its attention to introducing regional hard law obligations
requiring specific information disclosure. This was done by augmenting the Aarhus regime,
through the adoption of the Kiev Protocol to Pollutant Release and Transfer Registers135
(PRTR) (the Kiev Protocol). The provisions of the Protocol, which entered into force in 2009,
125 OECD Recommendation of the Council on Implementing Pollutant Release and Transfer Registers
(PRTRs) 20 February 1996—C(96)41/Final.
126 PROPER-PROKASIH Team, BAPEDAL, Jakarta and PRDEI, World Bank, Washington D.C.,
‘What is PROPER? Reputational Incentives for Pollution Control in Indonesia’, available at: http://www.
performeks.com/media/downloads/what%20is%20proper.pdf.
127 Killmer, ‘Designing Mandatory Disclosure’, at 3.
128 Commission Decision 2000/479/EC of 17 July 2000 under Article 15(3) of Council Directive 96/61/EC
concerning integrated pollution prevention and control Official Journal L 257, 10/10/1996 P. 0026–0040.
129 Regulation (EC) No. 166/2006 of the European Parliament and of the Council of 18 January 2006
concerning the establishment of a European Pollutant Release and Transfer Register and amending
Council Directives 91/689/EEC and 96/61/EC OJ L33/1 04/02/2006, available at: http://eur-lex.europa.
eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:033:0001:0017:EN:PDF.
130 China began to use this type of approach in pilot schemes in 1999, moving to mandatory roll out
in 2005, requiring all urban municipalities to rate industrial performance and make this information
publicly available by 2010. See Li, ‘Self-Motivated Versus Forced Disclosure of Environmental Information
in China’, at 332.
131 Ibid., at 351.The communication of information in a form that the public can readily comprehend
and use is, as Killmer, ‘Designing Mandatory Disclosure’, at 2, indicated a central element to the success
of regulation by disclosure schemes.
132 Ibid, at 334.
133 Y. Zhao, ‘Environmental NGOs and Sustainable Development in China’ in Percival, Lin, and
Piermattei (eds.), Global Environmental Law at a Crossroads, at 63–80.
134 As raised by Killmer, ‘Designing Mandatory Disclosure’. 135 26 UNTS 119.
were in some respects closely modelled on the TRI136 but with one important distinction—in
common with its parent regime, as an international law instrument the Kiev Protocol
continues to view information disclosure as the obligation of the state,137 with only indirect
implications for industry.138
More recent developments have seen the emergence of mandatory greenhouse gas
reporting obligations (MGGROs), imposed directly on companies as a further iteration of
environmental reporting obligations. Now widely deployed, for the most part (though not
exclusively) in the developed world,139 and the subject of rapid projected expansion,140
MGGROs vary considerably in nature, not least in how they are applied; most commonly to
facilities; and less frequently at a corporate level.141 There is also considerable variance in
the thresholds for their applicability.142 The UK approach is interesting in that, in contrast
to most other reporting regimes,143 which are harnessed to environmental law, it links the
MGGROs into other corporate obligations in company law.144 Typically MGGROs employ
self-certification in the first instance but this is usually subject to some form of external
verification.145
43.4.2 Voluntary Information Disclosure by Companies

In recent times, companies have also begun to use voluntary and selective disclosure of
information to attempt to bolster their commercial reputation in response to shareholder
activism146 and the need to appeal to consumers.147 This too represents a form of control by
information—though this time exercised by companies over issues going to reputation, in
136 Sand, ‘The Right to Know’, at 218. 137

Article 4 Kiev Protocol.
138 See Mason, ‘Information Disclosure and Environmental Rights’, at 11. Article 7 Kiev Protocol places
signatories under an obligation to require the owners or operators of facilities falling within the regime to
submit specified information—as defined in Art. 7(5) and (6) to a designated ‘competent authority’.
139 See N. Singh and L. Longdyke, ‘A Global Look at Mandatory Greenhouse Gas Reporting Programs’,
27 May 2015, World Resources Institute, available at: http://www.wri.org/blog/2015/05/global-look-man-
datory-greenhouse-gas-reporting-programs.
140 N. Singh, K. Bacher, R. Song, M. E. Sotis, and L. Yin, Guide for Designing Mandatory Greenhouse
Gas Reporting Programs (May 2015) WRI.Org and THEPMR.Org, available at: http://www.wri.org/pub-
lication/guide-designing-mandatory-greenhouse-gas-reporting-programs, based on an examination of
thirteen systems—twelve state-based systems and the EUETS, detailed at 6. Of the schemes reported on,
only Turkey’s failed to provide for public access to information and only Turkey and the United Kingdom
failed to provide information through a centralized online platform, at 62.
141 Ibid., at 62. 142 Ibid., at 44. 143 As exemplified ibid., at 21.
144 Companies Act 2006, ss. 172 and 417 introducing environmental reporting obligations, in this
instance underpinned by the Climate Change Act 2008.
145 Singh et al., Guide for Designing Mandatory Greenhouse Gas Reporting Programs, at 72—the
US system was the only one of those examined that did not provide any form of external verification
mechanism.
146 See e.g. B. Richardson, Environmental Regulation through Financial Organisations: Comparative
Perspectives on the Industrialised Nations (The Hague: Kluwer, 2002) and specifically with regard to climate
change, J. Dine, ‘Corporate Regulation, Climate Change and Corporate Law: Challenges and Balance in
an International and Global World’ (2015) 26(1) European Business Law Review 173–202 comparing
traditional UK practice on corporate liability with the innovative approach adopted in Albania.
147 Richardson, Environmental Regulation through Financial Organisations.
992 karen morrow
their own interests. The emergence of corporate voluntarism and the growth of corporate
social responsibility initiatives more generally, while beyond the scope of this chapter,
increasingly see companies volunteering information, in ever more structured forms148 (to
bolster the credibility which they can otherwise lack149) to the public on a variety of areas,
including the environment. Whilst the drivers for adopting such initiatives vary, at base
they share, as one would expect, a common concern with improving the bottom line of
participating firms.
Other non-regulatory information-based mechanisms have also gained prominence
which attempt to exploit voluntary information disclosure for competitive advantage
through a more direct bid to harness the power of consumer choice in a wide range of
eco-labelling initiatives.150 These exist in a number of forms,151 ranging from self-certified
claims to (most significantly for present purposes) schemes which subject firms’ environ-
mental claims and the information which supports them to external evaluation in order to
gain accreditation152 that can then be used to greater effect in product marketing. Though
their efficacy is more often assumed than proven,153 eco-labelling schemes have been widely
endorsed (not least in Agenda 21154) and pursued. Emerging in Europe with Germany’s
‘blue angel’ label in 1978, eco-labelling has subsequently been rolled out across the globe:155
in individual nations in the developed and (to a much lesser extent) the developing world;
and in regional schemes such as the Nordic ‘swan’ and the EU ‘flower’ labels.156 Regional
and national schemes are not necessarily mutually exclusive157 and the proliferation of
eco-labels may in fact serve to create confusion rather than enlightenment among the public,
148 See e.g. the emerging area of sustainability reporting, notably the Global Reporting Initiative and its
sustainability reporting standards, available at: https://www.globalreporting.org/standards/gri-standards-
download-center/; and CERES, which now prioritizes information disclosure, available at: https://www.
ceres.org/roadmap-assessment/about/roadmap-expectations/disclosure.
149 See C. A. Adams, ‘The Ethical, Social and Environmental Reporting-Performance Portrayal Gap’
(2004) 17(5) Accounting, Auditing & Accountability Journal 731–57.
150 Cross reference **** this volume. Ecolabelling constitutes information accompanying products or
services identifying their environmental credentials.
151 As laid out in the ISO series of environmental standards 41020–41024, available at: https://www.
iisd.org/business/markets/eco_label_iso14020.aspx.
152 As per ISO 14024 Environmental Labels and Declarations—Type I Environmental Labelling,
available at: https://www.iisd.org/business/markets/eco_label_iso14020.aspx.
153 C. C. Erskine and L. Collins, ‘Eco-labelling: Success or Failure?’ (1997) 17 The Environmentalist 125–33.
154 Agenda 21, Chapter 4, Changing Consumption Patterns.
155 See GEN, Environmental Standards by Country, available at: http://www.globalecolabelling.net/
eco/green-certification-by-country/. For a useful overview, see C. Fruntes, ‘Ecolabels – Important Tools
in Developing A Sustainable Society. A Global Perspective’ Bulletin of the Transilvania University of
Brasos: Series V (2014) 7(56)(2) Economic Sciences 267–74, at 271.
156 Originally introduced in Council Regulation 880/92/EEC on a Community eco-label award
scheme, OJ L 99 11.4.1992, the regime has subsequently been revised and streamlined, most recently in
Regulation (EC) No. 66/2010 of the European Parliament and of the Council of 25 November 2009 on
the EU Ecolabel OJ L21/1 31.01.2010.
157 See H. Karl and C. Orwat, ‘Environmental Labelling in Europe: European and National Tasks’
(1999) 9 European Environment 212–20, which considers the implications of the parallel operation of
domestic eco-labelling regimes with the EU’s eco-label. Indeed, national and EU schemes may be admin-
istered by the same authorities, as is the case in the Nordic countries, see K. Aalto, E. Heiskanen, C. Leire,
and A. Thidell, ‘The Nordic Swan—From Past Experiences to Future Possibilities; The Third Evaluation
of the Nordic Ecolabeling Scheme’ TemaNord, 2008, available at: norden.diva-portal.org/smash/get/
diva2:701823/FULLTEXT01.pdf.
necessitating a further role for the state in mediating their content and reliability.158 In
principle though, eco-labelling schemes communicate complex environmental information
to consumers in a simplified way, enabling them to make supported, more environmentally
sustainable consumption decisions. There is obviously considerable complementarity in
approach between this type of mediated, simplified communication of environmental
information to the public and that employed in the use of environmental indicators (as con-
sidered above).
The global reach, ambition, and longevity of eco-labelling has, as with other areas of
informational activity, prompted the development of a more collective approach towards
matters of registration and recognition. This is supported by the work of the Global
Ecolabelling Network159 (GEN), founded in 1994, which promotes a more strategic approach
to eco-labelling that will likely increase consistency in the various regimes in the longer term.
43.5 Concluding Remarks: Emerging

Informational Concerns in the Age of
Information Technology
As a coda to current coverage of access to environmental information, it is worth considering

some emerging issues in this rapidly developing area. First, it is important to acknowledge
that there are potentially positive implications (discussion of which is largely absent in legal
scholarship) of the mainstreaming of electronic information for environmental governance
which serve in part to offset the acknowledged challenges that this development poses, out-
lined at the start of this chapter. Regional and state practice has, as considered above, fostered
and accelerated the rise to prominence of electronic information. This is resulting in a species
of informational culture change, as the broad dissemination of information becomes the norm
and access to it (subject of course to resources and capacity) becomes increasingly wide.
Additionally, diffuse sources and the nature and ability of the public to generate and dis-
seminate information, is coming to play a much more significant role in our information
culture than hitherto. This serves to shift control over what enters the public domain, at
least in part, to individual citizens/citizen groups and effectively makes it impossible for
states and firms to pre-empt disclosure of such information.160 The potential leverage to be
gained through the reputational impacts of such a catholic approach to information may
see public participation through modern data communication develop an even more activist
complexion in future and this is a subject that warrants further research.
In any event, modern data science is already re-shaping the state-sponsored participation
agenda. In Wales for example, consultation on the Wellbeing of Future Generations (Wales)
158 Karl and Orwat, ‘Environmental Labelling in Europe’, at 219.

159 GEN is a global organization comprising twenty-seven leading eco-labelling organizations, see:
http://www.globalecolabelling.net/. GEN has placed its endeavours on a more explicitly legal footing by
recently adopting a set of byelaws, available at: http://www.globalecolabelling.net/assets/Documents/
GEN-Bylaws-FINAL-2016April21.pdf.
160 Though there could of course be recourse to civil litigation e.g. in cases of untruth.
994 karen morrow
Act 2015, was driven by an innovative ‘national conversation’ which continues to inform its
implementation.161 This employed a wide range of participatory strategies, with electronic
communication and input opportunities playing a very significant role, demonstrating the
increasing reach of digital citizenship as a participatory medium.
On reflection, although this is not an area that has yet attracted much scholarly attention
in law and the social sciences,162 the rise of big data, which is acknowledged as creating new
opportunities to enhance the quality of decision-making163 also seems to readily map on to
the type of now well-established participation-based environmental governance with which
much of this chapter has been concerned. The fact that big data lends itself to multi-scalar
governance issues (such as climate change), and potentially enables engagement between
global issues and their local manifestation,164 further underlines potential synergies with
access to environmental information and participation in environmental decision-making.
For example, employing big data in this context could harness and revivify citizen science,
exploiting to an unprecedented degree the ability of individuals to collect, collate, and
disperse information.165 Equally, big data could aid environmental decision-making and
regulatory enforcement, in each case creating the potential to more effectively marry
technical and community-based information (as considered above) to improve environmental
governance. Currently, most states seem ill-equipped to deal with these issues,166 though
big data has important potential ramifications for their role in providing access to informa-
tion. The US government however had begun to grasp the nettle: rather than making a
bootless attempt to control state-generated meta data, latterly it had been harvesting it and
making it available for wide use.167 This offered obvious synergies with more conventional
approaches to access to information—though this innovative trajectory now looks likely to
be at best highly constrained (if not suppressed) in the environmental sphere by the current
administration’s hostility to environmental regulation.168
In any event, the globalized nature of modern communication, the broad dissemination
of environmental information, and the rapid development of big data suggest that further
research as to the potential benefits of adopting more concerted, regional, and perhaps even
global action in this arena would be highly beneficial.
161 http://thewaleswewant.co.uk/about.
162 This is also the case with regard to sustainability issues more generally, see A. Keeso, ‘Big Data and
Environmental Sustainability: A Conversation Starter’ Smith School University of Oxford Working
Paper 14.04, December 2014, available at: http://www.smithschool.ox.ac.uk/library/working-papers/
workingpaper%2014-04.pdf.
163 E. Dumbill, ‘Making Sense of Big Data’ (2013) 1(1) Big Data 1–2.
164 Extrapolating from observations made by interviewees in Keeso, ‘Big Data and Environmental
Sustainability’, at 25–6.
165 See e.g. W. Schubert: ‘How “Big Data” Can Help Save the Environment’—originally published in
Scientific American, electronic version accessed at: http://www.salon.com/2015/07/18/.
166 The United States and Belgium being exceptions, see Keeso, ‘Big Data and Environmental
Sustainability’, at 12.
167 https://www.data.gov/. The House of Commons Science and Technology Committee Report: The
Big Data Dilemma, Fourth Report of Session 2015–16, HC468, observed that the UK government has yet
to fully exploit the opportunities offered by big data.
168 See e.g. M. Pengelly: ‘Trump to sign executive order undoing Obama’s clean power plan’, The
Guardian, 26 March 2017, available at: https://www.theguardian.com/environment/2017/mar/26/trump-
executive-order-clean-power-plan-coal-plants.

Depoe, S. P., J. W. Delicath, and M.-F. Aepli Elsenbeer (eds.), Communication and Public Participation
in Environmental Decision Making (Albany: State University of New York Press, 2004).
Foti, J. with L. de Silva, H. McGray, L. Schaffer, J. Talbot, and J. Werksman, ‘Voice and Choice: Opening
the Door to Environmental Democracy’ World Resources Institute (2008), available at: http://pdf.
wri.org/voice_and_choice.pdf.
Grear, A. and L. Kotze (eds.), Research Handbook on Human Rights and the Environment (Cheltenham:
Karkkainen, B. C., ‘Bottlenecks and Baselines: Tackling Information Deficits in Environmental
Regulation’ (2008) 86 Texas Law Review 1409–44.
Keeso, A., ‘Big Data and Environmental Sustainability: A Conversation Starter’ Smith School
University of Oxford Working Paper 14.04, December 2014, available at: http://www.smithschool.
ox.ac.uk/library/working-papers/workingpaper%2014-04.pdf.
Mamlyuk, B. N. and U. Mattei: ‘Comparative International Law’ (2010–11) 36 Brooklyn Journal of
Percival, R. V., J. Lin, and W. Piermattei (eds.), Global Environmental Law at a Crossroads (Cheltenham:
IUCN Academy/Edward Elgar, 2014).
Treves, T., M. Frigessi di Rattalma, A. Tanzi, A. Fodella, C. Pitea, and C. Ragni (eds.), Civil Society,
International Courts and Compliance Bodies (The Hague: T.M.C. Asser Press, 2005).
chapter 44
Eco -l a bel li ng
Jason Czarnezki, Margot Pollans,
and Sarah M. Main
44.1 Overview 996

44.2 Eco-label Types 999
44.2.1 Eco-label Content 999
44.2.2 Eco-label Governance 1004
44.2.2.1 First-party and Third-party Labels 1004
44.2.2.2 Public Label Governance 1005
44.3 Barriers to Use of Eco-labels as a Force for
Environmental Change 1008
44.3.1 Will an Eco-label Work? 1008
44.3.1.1 Labelling Methodology 1008
44.3.1.2 Label Legitimacy 1011
44.3.1.3 Understanding Consumer Behaviour 1014
44.3.2 Eco-labelling Normative Concerns 1016
44.3.2.1 Equity 1016
44.3.2.2 Consumerism and ‘Strong’ Versus ‘Weak’
Sustainability1019
44.1 Overview
Eco-labels, a form of information regulation, have proliferated in recent years as an

alternative to traditional command and control regulation. Ecolabel Index, a website that
tracks labels worldwide, currently lists 463 certified labels, including over 200 on products
eco-labelling 997
sold in the United States.1 In the food context alone, sixty-five different certifications are
used for products sold in the United States.2 Eco-labels serve a variety of functions, including
communicating to businesses and consumers the environmental attributes of a particular
product or the dangers that product may pose. Despite their growing popularity, successful
eco-labels face a number of barriers and, in most cases, should not be viewed as a standalone
regulatory tool.
Eco-labels have the potential to improve environmental outcomes in a number of ways.
First, eco-labels educate consumers about environmental attributes of products and incen-
tivize product greening by increasing consumer demand for environmentally friendly attri-
butes and lowering demand for harmful attributes. Second, eco-labels provide a basis for
companies and governments to set measurable sustainability goals for sourcing, improve-
ments, and transparency. Next, eco-labels, particularly those identifying negative attributes,
can expose companies to reputational harm that may incentivize companies to change
product formulations and product processes even if consumer demand is unaffected. For
instance, the label may generate pressure from stockholders to improve environmental out-
comes. Finally, studies indicate that information can sometimes trigger development of
environmental norms. For example, increased awareness of the consequences of individual
transportation behaviour has a positive effect on willingness to reduce personal car use.3
Little data exists on the effectiveness of eco-labels, but some evidence suggests that they
can generate environmental benefits. The European Commission conducted a study of
direct and indirect environmental benefits gained through the use of eco-labelled products
over non-labelled products. For direct benefits, the study aimed to quantify the ‘potential
savings that could be achieved if the market share of ecolabelled products increased to 5, 20,
or 50%’.4 The study concluded that, with a modest 5 per cent increase in EU eco-labelled
products in the market, over nine million tonnes of CO2 produced from energy usage could
be avoided in a single year.5 At a 50 per cent market uptake of eco-labeled products, over
93 million tonnes of CO2 from energy usage could be avoided.6 The indirect environmental
benefits identified in the study represent the ‘positive effects the [EU] ecolabel has had and
could potentially have in the future.’7 Indirect environmental benefits of the eco-label within
the EU258 included 43 TWh of energy savings in a year, 27 million tonnes of CO2 savings,
1 Ecolabel Index, ‘All Ecolabels’, available at: http://www.ecolabelindex.com/ecolabels/; Ecolabel Index,

‘All Ecolabels in the United States’, available at: http://www.ecolabelindex.com/ecolabels/?st=country,us.
2 Ecolabel Index, ‘All Ecolabels on Food in the United States’, available at: http://www.ecolabelindex.
com/ecolabels/?st=country=us;category=food (these numbers include animal welfare labels).
3 A. M. Nordlund and J. Garvill, ‘Effects of Values, Problem Awareness, and Personal Norm on
Willingness to Reduce Personal Car Use’ (2003) 23 Journal of Environmental Psychology 339, at 345.
4 DG Environment EU Commission, ‘The Direct and Indirect Benefits of the European Ecolabel’
(November 2004), 4, available at: http://ec.europa.eu/environment/ecolabel/about_ecolabel/reports/
benefitsfinalreport_1104.pdf.
5 Ibid. 6 Ibid. 7 Ibid., at v.
8 The EU25 is comprised of Belgium, Denmark, France, Germany, Greece, Ireland, Italy, Luxembourg,
the Netherlands, Portugal, Spain, the United Kingdom, Austria, Finland, Sweden, Cyprus, the Czech
Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia. Eurostat, Glossary:
EU Enlargements, available at: http://ec.europa.eu/eurostat/statistics-explained/index.php/Glossary:
EU_enlargements (last updated 16 May 2014).
998 jason czarnezki, margot pollans, and sarah m. main
39 thousand tonnes of hazardous substances avoided, and 49 thousand tonnes of reduced

air pollution.9
The move towards eco-labelling as a prominent regulatory tool has both public and
private influences. In public environmental law, there has been a transition towards neo-
liberal environmental regulation relying on market-based mechanisms, information dis-
closure, and public education programmes designed to create demand for greener
products.10 Information-based approaches like labelling are often used when there is
insufficient political support to promulgate market or regulatory instruments, or when
such instruments are ill-suited to a particular problem.11
At the same time, private environmental governance has grown in scale and significance.
Private corporations provide information about their own products for both reputational
and market effects, changing behaviour in anticipation of consumer backlash and capital-
izing on consumer demand for particular product attributes. Corporate entities pursue
environmental initiatives both to increase sustainability and to capture market share of con-
sumers with environmental preferences. This dual motivation feeds concerns about ‘green-
washing’, which can undermine trust in label claims and can even lead to industry liability,
particularly when coupled with inadequate transparency and clarity.12
Consumer demand for eco-labelled products has grown in conjunction with increasing
awareness about consumption-related personal health risks, including those from ingestion
of pesticides and exposure to toxins such as BPA. Consumers also express concerns about
the external costs of production, including those related to deforestation, biodiversity, climate
change, and non-environmental issues such as fair and safe labour practices and animal
welfare. This latter list of concerns has expanded the scope of eco-labels from the initial
health-based focus to all three pillars of sustainability—environmental, social, and economic.13
The broad range of issues subject to eco-labelling creates risks related to information over-
load, which can undermine label effectiveness.
In addition to concerns of greenwashing and information flooding, ecolabels face several
other barriers. It remains costly and technically challenging to generate accurate, verifiable,
and understandable information. Fostering consumer trust requires sufficient investment
in transparency and enforcement of label standards, and the mechanism relies heavily on
the individual choices of consumers who make purchasing decisions based on a broad
range of product characteristics unrelated to the environment, including price, taste, and
effectiveness.
Eco-labelling also gives rise to a variety of normative concerns. First, eco-labels can be
inequitable, particularly where they rely on consumers to change their behaviour in order
9 DG Environment EU Commission, ‘The Direct and Indirect Benefits of the European Ecolabel’, at vi.
10 J. J. Czarnezki, ‘The Neo-Liberal Turn in Environmental Regulation’ (2016) Utah Law Review 1
(citing P. J. DiMaggio and W. W. Powell, ‘The Iron Cage Revisited: Institutional Isomorphism and
Collective Rationality in Organizational Fields’ (1983) 48 American Sociological Review 147, at 147–50,
available at: https://www.ics.uci.edu/~corps/phaseii/DiMaggioPowell-IronCageRevisited-ASR.pdf [https://
perma.cc/K67X-88BJ]).
11 J. Salzman, ‘Teaching Policy Instrument Choice in Environmental Law: The Five P’s’ (2013) 23 Duke
12 R. Sullivan, ‘What’s in a Label?’ (2010) 156 ECOS, available at: http://www.ecosmagazine.com/
paper/EC156p20.htm.
13 Ibid., at 29.
eco-labelling 999
to avoid the environmental harms (which often include human health harms) that may
result from a product’s production or consumption. Significant income inequality means
many lack access to or cannot afford high-priced eco-labeled products. This problem can
be abated only when other entities—producers, the general public—take on the costs of
environmental externalities. Second, eco-labels, in the voluntary purchasing context of the
individual consumer, do not require any actual changes to primary behaviour. They are
primarily a tool for direct consumer choice among various products and may not foster the
sort of reduced consumption that may be necessary to establish a truly sustainable society.
This concern may, however, be alleviated in the context of institutional procurement. In this
context, large public and private institutions may use eco-labels and their accompanying
environmental criteria to achieve broad based sustainability goals, including reduction of
resource use.
This chapter explores existing and emerging types of environmental labelling. Section 44.2
explores the range of types of eco-labels, laying out common label content and governance
schemes (both public and private). Section 44.3 explores the challenges that successful
labelling schemes must overcome, concluding that the best labels are whole process labels
and that eco-labelling is best viewed as one component of a broader regulatory scheme.
Section 44.4 briefly concludes that continued work is needed to improve the effectiveness
and legitimacy of eco-labelling schemes.
44.2 Eco-label Types
‘Eco-label’ is a vast category. Eco-labels contain many different types of information and
operate within the context of a variety of governance schemes. Before assessing when and
how eco-labels can generate environmental benefits it is essential to understand the range
of options. Accordingly, this section develops a taxonomy of eco-labels focusing first on
label content—the type of information that the label contains; and second on label gov-
ernance and validation—the entity that determines what information is conveyed and
assesses its validity. This section draws on examples from around the world to illustrate
various label types.
44.2.1 Eco-label Content

Eco-label content can be sorted into two sets of categories. First, the label conveys
environmental information that is positive—a claim that the product is environmentally
friendly in some way; negative—a warning that the product is risky to human health or the
environment; or neutral—information that may only be meaningful relative to a scale.
Warning labels often also include instructions for safe use. Second, the label conveys infor-
mation either about the product itself or about the process by which the product was made.
Table 44.1 shows these six label types and an example of each.
Positive claims seek to induce consumers to choose the eco-friendly item over an equiva-
lent, but non-eco-friendly, item. Because eco-friendly products are often more expensive to
produce, the label provides a mechanism for sellers to increase the price and capture the
Table 44.1 Eco-Label Content Categories

Product Process
Eco-
Friendly
Warning Warning: Manufactured with [insert

name of substance], a substance
which harms public health and
environment by destroying ozone in
the upper atmosphere. 42 U.S.C.
7671j(d)(1).
Neutral
consumer’s willingness to pay more for the actual or perceived benefits associated with
the environmental claim. Positive claims might relate directly to private benefits such as con-
sumer health or might communicate information about a public good—an external
environmental characteristic of the product.14 A claim that a product is paraben-free is an
example of both—some studies link parabens to endocrine disruption, which can pose risks
both to humans applying parabens to their skin and to ecosystems exposed to wastewater
containing parabens.
Warning claims, by contrast, alert consumers or product users to an environmental risk.
Again, this risk may either be directly to the consumer or to the environment. For example,
California’s Proposition 65 requires that manufacturers label products that contain
carcinogens—a direct risk to the consumer—and the 1990 Amendments to the United
States Clean Air Act contained a mandatory labelling requirement for any product containing
an ingredient known to contribute to ozone depletion—a direct risk to the environment.15
Pesticide warning labels, required in the United States under the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA) and in the European Union (EU) under the
2008 Classification, Labelling, and Packaging regulation (‘CLP Regulation’), often convey
information both about human health and environmental risks, and include safe use
instructions.
14 M. J. Pollans, ‘Bundling Public and Private Goods: The Market for Sustainable Organics’ (2010) 85
New York University Law Review 621 (discussing the public and private benefits in the context of
eco-labelling schemes).
15 42 U.S.C. § 7671j(b).
eco-labelling 1001
Neutral labels offer information that is not in itself positive or negative. For instance,
‘environmental product declarations’ (EPD) are ‘industry-created statements containing
a variety of information about the composition and environmental characteristics of a
product based on life-cycle assessment’.16 This approach would inform consumers about
a wide range of life cycle environmental concerns associated with the product such as
water usage, chemicals used, pollution and carbon emissions, and waste disposal. Unlike
an eco-label seal, an EPD alone would disclose information ‘in a neutral way that enables
consumer evaluation but that does not seek to judge the environmental characteristics of
a product’.17
The process/product distinction is also key to understanding eco-label content. Process
claims convey information about the conditions of manufacture, including, but not limited
to, chemical and fossil fuel inputs, ingredient sourcing practices, water and energy use
during processing, distribution methods, and environmental byproducts of processing.
A process claim does not, however, convey any information about the product, which may be
functionally and physically identical to a product produced under different circumstances.
Positive processing claims often relate to sustainable sourcing. For instance, the Forestry
Stewardship Council and the Marine Stewardship Council certify sustainably sourced wood
and fish respectively.
The process/product distinction is not always a bright line. As a technical matter, for
instance, organic labels in the United States and EU convey only process information—to
get organic certification a producer must meet a variety of standards related to farming
practices and food processing. These labels do not guarantee that the final product is
pesticide-free. In practice, however, organic products have far lower levels of pesticide
residues than do conventional products. By contrast, in China, the organic label aims to
convey both process and product information—regulators employ site inspections of products
processing and pesticide residue testing on agricultural products; though overall quality of
Chinese organic labels may be lower due to limited enforcement, fraud, and higher levels of
local pollution.18
Most process claims are positive, but some warning labels alert consumers to risks that
occurred during manufacturing. For instance, the 1990 Clean Air Act Amendments
require that manufacturers disclose whether ozone-depleting chemicals were used during
production.19 Others, like the Carbon Trust label, declaring the total sum of greenhouse gas
emissions (CO2e), are neutral process claims.
By definition, process claims exclude any consumption- or use-related human health
concerns. Accordingly, to the extent that consumers care about process claims, they are express-
ing concern about environmental or social externalities affecting those directly involved in
16 N. J. King and B. J. King, ‘Creating Incentives for Sustainable Buildings: A Comparative Law
Approach Featuring the United States and the European Union’ (2005) 23 Virginia Environmental Law
Journal 397 fn. 232 (citing European Commission, Summary of Discussions at the 2nd Integrated Product
Policy Expert Workshop: Environmental Product Declarations (ISO 14025 Technical Report) 2 (2001),
available at: http://ec.europa.eu/environment/ipp/pdf/epd.pdf).
17 Ibid.
18 See J. J. Czarnezki, C. Field, and Y. Lin, ‘Global Environmental Law: Food Safety & China’ (2013) 25
Georgetown International Environmental Law Review 261.
19 42 U.S.C. § 7671j(d)(1).
or exposed to the byproducts of resource extraction, manufacturing, and distribution. In

other words, process claims embody the ethical dimension of private consumption.20
Process claims can be further subdivided into two categories. Claims may either be
partial—addressing only one aspect of the production process; or entire—addressing, or, in
most cases, striving to address, the entire production process. State-sponsored organic
labels are an example of a partial claim that the food product was grown without pesticides
or genetic modification. They do not, however, convey any information about many other
environmental factors such as carbon footprint or water consumption.
By contrast, an entire process claim attempts to incorporate a product’s entire life cycle
into a single metric. All processing and product attributes from cradle to grave factor into
the life cycle analysis. Because of the large number of variables, this process is extremely
data-intensive. In the global market, products reach consumers at the end of long, complex
supply chains that include raw material extraction, processing, packaging, and distribu-
tion that may happen in many places around the world by a number of different private
companies.
Some entire process claims are neutral, placing products along a spectrum from more to
less harmful, and often can be understood only by reference to other products. Others use a
variation of a red light/green light scheme to claim an entire process is either environmentally
acceptable or unacceptable. The Carbon Disclosure Project is an example of the former
category. It is a global disclosure programme that provides investors, governments, and
companies with an environmental scorecard of their global supply chains.21 Similarly,
Procter & Gamble (P&G) Suppliers is a private company that provides product suppliers
with an environmental sustainability scorecard.22 The supply chain score factors in carbon
emissions, energy and water usage, and waste generated throughout the entire supply chain
process.23 P&G Suppliers’ scorecard incorporates aspects of the Carbon Disclosure Project’s
scorecard and aligns with the Global Reporting Initiative, the Greenhouse Gas Protocol,
and other worldwide standards.24 Global GreenTag, by contrast, is a third-party green process
certifier that uses varying shades of green to indicate the environmental sustainability of a
product’s supply chain.25 The Global GreenTag is used throughout Australia, New Zealand,
Malaysia, South Africa, and seventy other countries.26 The Global GreenTag is externally
certified following a variety of standards developed by the International Organization
for Standards (ISO), a private entity that develops voluntary standards through industry
consensus.27
20 See generally D. A. Kysar, ‘Preferences for Processes: The Process/Product Distinction and the
Regulation of Consumer Choice’ (2004) 118 Harvard Law Review 525.
21 Carbon Disclosure Project, About Us—What We Do, available at: https://www.cdp.net/en/info/
about-us.
22 P&G Suppliers, Environmental Sustainability Scorecard, available at: https://pgsupplier.com/en/pg-
sustainability/sustainability-scorecard.shtml.
23 Ibid. 24 Ibid.
25 Global GreenTag, About Global GreenTag, available at: http://www.globalgreentag.com/about-
greentag/#gt-how.
26 Ibid.
27 The Global GreenTag uses ISO 14024 for Type I (Third Party) eco-labels, ISO 14040 and 14044 for
life cycle analysis (discussed further below), ISO 14067 for greenhouse gas calculations, ISO 14025 for
environmental product declarations, and ISO 21930 and EN 15804 for specific need environmental product
declarations, among other nationally recognized certification schemes. Ibid.
eco-labelling 1003
Table 44.2 Eco-Label Governance Categories, by Content Type

First-Party Third-Party Public
Risk Warnings and None28 None FIFRA, Prop. 65;

safe handling Ozone Depletion
directives (Product) Warnings
Risk Warnings None None Ozone Warning;
(Process—Partial) US EPA Protection of
Pollinator Warning
Risk Warnings None None None
(Process—Entire)
Eco-Friendly Claims GMO-Free;29 Certified GMO Free Energy Star
(Product) biodegradable;
recyclable
Eco-Friendly Claims Produced with Forest Stewardship Council; USDA Organic; EU
(Process—Partial) renewable Dolphin Safe; Marine Stewardship Organic Logo
energy Council; Green-e; Rainforest
Alliance Certified; EcoCert
Eco-Friendly Claims ‘All Natural’ LCA, EcoLogo (Canada); EU None
(Process—Entire) Whole Foods Ecolabel ‘Flower’; Green Seal;
produce EPEAT; BDIH;
ranking
Neutral (Product) None None None30
Neutral (Process— None Carbon Trust None
Partial)
Neutral (Process— None Global GreenTag None
Entire)
The complications of process claims expand the total number of categories from six,
pictured in Table 44.1 above, to nine, not all of which exist in the real world (see Table 44.2
above): 1) product warning claims; 2) partial process warning claims; 3) entire process
warning claims; 4) eco-friendly product claims; 5) eco-friendly partial process claims;
6) eco-friendly entire process claims; 7) neutral product claims; 8) neutral partial process
claims; and 9) neutral entire process product ranking schemes. Many of these categories
could be further subdivided based on whether the information conveyed in the label
promises public or private benefits.
28 None known by authors (same for all categories identified as none).
29 As a regulatory matter, GMO ingredients are classified as a product claim, but many anti-GMO
advocates would classify as a process claim. See Organic Trade Assoc., Comment Letter on Draft
Guidance for Industry: Voluntary Labeling Indicating Whether Foods Have or Have Not Been Developed
Using Bioengineering, Docket No. 00D-1598 at 3 (21 April 2014), available at: https://ota.com/sites/
default/files/indexed_files/OTA_Docket%20No_00D-1598_FDA_Final.pdf.
30 There are numerous neutral product information disclosure requirements that relate to consumer
health, including the nutrition facts panel, New York City restaurant grades, and recombinant Bovine
Somatotrophin (rBST)-free disclaimers. Environmental disclosures, by contrast, tend to convey either
positive or negative information.
44.2.2 Eco-label Governance

In the United States, many eco-labels are now the subject of consumer protection litigation.
For instance, consumer class actions have challenged foods claiming to be ‘natural’ and
durable goods claiming to be ‘sustainable’. These claims are subject to almost no public
oversight (except to the extent that federal law prohibits unfair or deceptive trade practices),
and consumer litigation reflects the growing concern that producers use these labels in
ways that are inconsistent with popular understanding of the terms. This litigation high-
lights the importance of label governance—oversight of label standards and verification of
compliance with those standards. First-party labels are governed only by the producing
company. Although all labels rely on private companies to share information about product
content and production processes, some label schemes rely on private third-party certifica-
tion. The third-party certification industry has grown dramatically in recent years. Both
first-party and third-party schemes are entirely voluntary.
Others labels are publicly governed. These include both publicly mandated information
disclosures and voluntary labels with government oversight of label standards and a public
verification process. Mandatory public labels often face legal challenges domestically (e.g.
First Amendment litigation in the United States) and internationally (e.g. World Trade
Organization (WTO) challenges), and voluntary labels are often subject to regulatory capture
as a result of corporate lobbying. See Table 44.2 for examples from each verification category.
44.2.2.1 First-party and Third-party Labels

Private voluntary label schemes can either be self-declared or third-party certified. Self-
declared, or first-party labels, include a broad range of claims including ‘sustainable’,
‘environmentally-friendly’, and ‘natural’. Some are grounded in self-created and published
standards. For instance, Whole Foods developed a Responsibly Grown certification pro-
gramme, through which it evaluates its produce suppliers. ‘A self-declaration e nvironmental
claim is one that is made without independent third-party certification by manufacturers,
importers, distributors, retailers, or anyone else likely to benefit from such a claim.’31
The proliferation of self-declared eco-labelling schemes, and resulting consumer confu-
sion and scepticism, had led many manufacturers and retailers to turn to independent,
third-party entities to certify that environmental product claims are valid.32 Third-party
31 R. B. Stewart, ‘A New Generation of Environmental Regulation?’ (2001) 29 Capital University Law
Review 21, at 136 fn. 449. See also A. Okubo, ‘Environmental Labeling Programs and the GATT/WTO
Regime’ (1999) 11 Georgetown International Environmental Law Review 599, at 608.
32 E. B. Staffin, ‘Trade Barrier or Trade Boon?: A Critical Evaluation of Environmental Labeling and
Its Role in the “Greening” of World Trade’ (1993) 21 Columbia Journal of Environmental Law 205, at
216–17 (citing uS EPA, ‘Status Report on the Use of Environmental Labels Worldwide’ (1993), 6–7;
A. Gesser, ‘Canada’s Environmental Choice Program: A Model for A ‘Trade-Friendly’ Eco-Labeling
Scheme’ (1998) 39 Harvard International Law Journal 501, at 512 (discussing environmental labelling in
Canada, and stating: ‘Understandably, consumers are skeptical about the truthfulness of environmental
claims made by the manufacturers themselves. As a result, unregulated first-party environmental labeling
programs provide little assistance for many environmentally conscious consumers. This is not only
because producers may make misleading claims about the environmental friendliness of their products,
but also because they may lack the resources and expertise to properly evaluate their goods.’).
eco-labelling 1005
labels require independent certification entities that develop and implement standards for
use of certifier-owned trademarked labels.
Prominent labels developed by third-party certifiers include the Rainforest Alliance
Sustainable Agricultural Network, with 23,929 certifications;33 Fairtrade, with 5,246 prod-
ucts and company certifications; and the Marine Stewardship Council,34 with 2,643 product
certifications.35 Each of these certifiers focuses on a particular set of social and e nvironmental
production impacts.
44.2.2.2 Public Label Governance

Publicly governed label programmes include both voluntary and mandatory labels. In vol-
untary programmes, standards are publicly developed, and producers can choose whether
or not to apply for certification. In mandatory programmes, producers are required by law
to disclose particular information on the product label.
Most positive content labels are voluntary. For example, the EU Ecolabel flower logo
programme, launched by the European Commission in 1992, certifies entire process claims,
assessing whether certified products are more environmentally friendly than conventional
products based on a life cycle ecological assessment.36 It is an ambitious project whose goal
is to introduce a single eco-label intended eventually to replace all national labels within the
EU.37 The flower logo has met only limited success so far since the label is still widely
unknown and is taking time to gather traction with consumers.38 The label appears on
38,760 products and 1,998 services in the EU.39 The EU eco-label assessment criteria are
developed in a multi-stakeholder process involving scientists, industry, and experts from a
wide range of sectors and non-governmental organizations (NGOs).40
33 D. Vermeer et al., ‘An Overview of Ecolabels and Sustainability’ in J. S. Golden, (ed.), Certifications in
the Global Marketplace (Corporate Sustainability Initiative, Nicholas Institute for Environmental Policy
Solutions, Durham, NC: 2010), 33, available at: http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.4
66.6273&rep=rep1&type=pdf. ‘The Rainforest Alliance certification is a conservation tool whereby an inde-
pendent, third party awards a seal of approval guaranteeing consumers that the products they are buying
are the result of practices carried out according to a specific set of criteria balancing ecological, economic,
and social considerations. The Sustainable Agriculture Network (SAN), the global parent, awards the North
America-based Rainforest Alliance Certified ecolabel to farms, not to companies or products.’
34 Ibid., at 30.
35 Ibid. ‘Unilever and the World Wildlife Fund partnered in 1997 to create a marine-based certifica-
tion. Today, the certification is known as MSC certification or the Marine Stewardship Council (MSC).
The organization is a nonprofit organization that has developed a global environmental standard for
sustainable fishing. Some of the standards measured by MSC include the maintenance of a sustainable
population level and the m inimization of environmental impacts. Well-managed fisheries that are
independently certified as meeting these standards may use the blue MSC ecolabel on seafood from their
fishery.’ Ibid., at 32.
36 See European Commission Environment, EU Eco-label, available at: http://ec.europa.eu/
environment/ecolabel/index_en.htm; see Council Directive 2004/35, 2004 O.J. (L 143) 1 CE, available at:
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02004L0035-20130718.
37 R. Gertz, ‘Eco-Labelling—A Case for Deregulation?’ (2005) 4 Law, Probability & Risk 128.
38 Ibid.
39 EU Ecolabel Facts & Figures, at: http://ec.europa.eu/environment/ecolabel/facts-and-figures.html.
40 EU Ecolabel FAQs, at: http://ec.europa.eu/environment/ecolabel/faq.html; EU Ecolabel Criteria
Development and Revision, at: http://ec.europa.eu/environment/ecolabel/criteria-development-and-
revision.html.
In addition, individual European countries have led the way in the creation of eco-labels.
For example, in Germany’s Blue Angel programme, an environmental label jury comprised
of representatives from environmental groups, science organizations, consumer associations,
industry, trade unions, and the media reviews life cycle reports to determine if the
‘Unweltzeichen’ (‘environmental label’) is appropriate.41 Germany’s programme, the oldest
eco-labelling programme in Europe, is perhaps the most successful as German consumers
make frequent and continuous use of the eco-label as a means of obtaining product infor-
mation and shopping accordingly.42
Other programmes are public private partnerships. For instance, in the Netherlands, the
Milieukeur label programme is supported by the Dutch government but is managed and
third-party verified by a non-profit organization, the Milieukeur Foundation.43 Similarly,
the Philippines’ National Ecolabelling Programme—Green Choice Philippines (NELP-
GCP), is a voluntary environmental declaration programme established through public law
but implemented by a private partner.44 The NELP-GCP grants green seals of approval to
products ranging from laundry detergent to laptop computers.45 The NELP-GCP is ISO
14024 compliant and aims to alter behavioural patterns of consumption.46 The NELP-GCP
and numerous other country-specific label schemes are members of the Global Eco-labeling
Network (GEN), which certifies certification programmes in order to facilitate trade in
labelled products by allowing for international recognition of individual labels.47
In the United States, there are a number of voluntary public label programmes. For
instance, in 1992, the United States Environmental Protection Agency (EPA) introduced
its Energy Star programme as a ‘voluntary labeling program designed to identify and
promote energy-efficient products’ in order to ‘reduce greenhouse gas emissions’.48
Organic labeling is a second example.49 Pursuant to the Organic Foods Production Act
of 1990, the US government creates production, handling, and labelling standards for
organic agricultural products.
Mandatory public label schemes include warning disclosures for pesticides, the Toxic
Release Inventory,50 and ozone-depletion warnings. Other mandatory disclosures focus on
41 S. P. Subedi, ‘Balancing International Trade with Environmental Protection: International Legal
Aspects of Eco-Labels’ (1999) 25 Brooklyn Journal of International Law 373, at 378.
42 Gertz, ‘Eco-Labelling’, at 136.
43 See Milieukeur programme, available at: http://www.milieukeur.nl/19/home.html. Ecolabel Index,
Milieukeur: The Dutch Environmental Quality Label, at: http://www.ecolabelindex.com/ecolabel/
milieukeur-ecolabel-the-netherlands. See European Commission, Green Public Procurement and the
European Label, Fact Sheet 3–4.
44 Philippine Center for Environmental Protection and Sustainable Development, Inc., The National
Ecolabelling Programme (NELP), at: http://www.pcepsdi.org.ph/ecolabel.html; see the Ecological Solid
Waste Management Act of 2000, Republic Act 9003, 11th Cong. (July 2000), available at: http://emb.gov.
ph/wp-content/uploads/2015/09/RA-9003.pdf.
45 NELP, at http://www.pcepsdi.org.ph/ecolabel.html. 46 Ibid.
47 See Global Ecolabelling Network (GEN), available at: https://www.globalecolabelling.net/.
48 Energy Star, History, available at: http://www.energystar.gov/about/history [http://perma.cc/
H9ZK-7TCG].
49 The most widely adopted food label in the United States is the USDA Organic label, which has
certified 35,000 products and companies. Vermeer et al., ‘An Overview of Ecolabels and Sustainability’, at 30.
50 United States Environmental Protection Agency, Toxics Release Inventory (TRI) Program, What is
the Toxics Release Inventory?, available at: https://www.epa.gov/toxics-release-inventory-tri-program/
learn-about-toxics-release-inventory.
eco-labelling 1007
energy use and carbon footprints. In the United States, certain consumer appliances must
be sold with a disclosure estimating the annual cost of operation.51 In the EU, all refrigerator,
washing machine, and dishwasher manufacturers must apply for the EC Energy Label,
which assigns the product an energy efficiency grading.52 ‘These grades formed the basis of
a voluntary agreement between manufacturers and the Environmental Commission to
phase out the least efficient appliances . . . the mandatory nature of the label mean[s] that the
agreement c[an] be easily monitored since all manufacturers must apply for a label . . . ’.53
The European Commission has a similar mandatory labelling scheme for CO2 emissions
from passenger cars.54 Professor Michael Vandenbergh, a leading scholar on private
environmental governance, has advocated for the creation of an Individual Carbon-Release
Inventory55 and a global carbon labelling scheme56 that would require both individuals and
companies to disclose the carbon burden of specific products.
Mandatory labels may be more difficult to develop and implement than voluntary
labels.57 Mandatory labels often rely on legislation that may be time consuming to imple-
ment.58 Additionally, mandatory labels may be costly if product data must be verified.59 An
additional limit on development of public governance schemes is international trade law.
The WTO Agreement on Technical Barriers to Trade (TBT) is an intergovernmental agree-
ment that regulations and standards aimed at protecting the environment will not unneces-
sarily obstruct international trade.60 Government-administered voluntary eco-label
programmes come within the purview of the TBT, while private voluntary eco-labelling
programmes created by companies and third parties do not.61 Privately administered
schemes developed through public private partnerships may also trigger WTO concerns.62
WTO legal challenges are further complicated by the lack of clarity in some WTO rules.
For instance, while WTO rules require that ‘like’ products be treated alike, ‘WTO rules do
not prevent countries from imposing different requirements (including those that relate to
labels) on products’ with different characteristics.63 When countries impose requirements
related to how the good is produced but unrelated to the commercial suitability of the prod-
uct, as governed by the TBT, discrepancies may arise between the countries’ regulations and
the WTO rules.64 In other words, labels that focus on process characteristics, where the
51 Energy and Water Use Labeling for Consumer Products under the Energy Policy and Conservation
Act, 16 Code of Federal Regulations Part 305 (2013) (requiring disclosure of estimate annual energy and
water costs to operate certain appliances).
52 C. Allison and A. Carter, DG Environment, Environmental Commission, ‘Study on The Different
Types of Environmental Labelling (ISO Type II and III Labels): Proposal for an Environmental Labeling
Strategy’ (September 2000), 59, available at: http://ec.europa.eu/environment/ecolabel/about_ecolabel/
reports/erm.pdf.
53 Ibid. 54 Ibid., at 9.
55 M. P. Vandenbergh and A. C. Steinemann, ‘The Carbon-Neutral Individual’ (2007) 82 New York
University Law Review 1673, at 1729–31.
56 See M. P. Vandenbergh et al., ‘Time to Try Carbon Labelling’ (2011) 1 Nature Climate Change 4, at 4.
57 Ibid., at 36. 58 Ibid. 59 Ibid.
60 Vangelis Vitalis, Organisation for Economic Co-operation and Development, Roundtable
on Sustainable Development, Private Voluntary Eco-labels: Trade Distorting, Discriminatory
and Environmentally Disappointing 2 (2002), available at: https://www.oecd.org/sd-roundtable/
papersandpublications/39362947.pdf.
61 Ibid. 62 Ibid. 63 Ibid., at 3. 64 Ibid.
final product may be indistinguishable from an uncertified product, as opposed to product

characteristics, may be more subject to challenge.
In sum, whether the product of private or public governance, successful eco-labels require
trustworthy and transparent governance and sound certification methodology. The next
section takes up these challenges in more depth.
44.3 Barriers to Use of Eco-labels as

a Force for Environmental Change
As eco-labels of all types continue to proliferate, it is important to take a step back and ask
under what circumstances these labels can work (i.e. when does the label generate net
environmental benefits). Successful implementation rests on a variety of factors. First,
labels must convey the right information. We evaluate a variety of methodological problems
with label development, focusing on the need for improved whole process evaluation tools.
Second, if the label is not trustworthy, it will not induce changed behaviour. We argue that
label legitimacy rests in clearly articulated standards for label use and strong mechanisms
for verification. Third, and relatedly, labels must actually induce consumers to change their
behaviour. Although eco-labels can create change via other mechanisms, direct consumer
response (or, at least, producer expectation of consumer response) is the most important.
A label can generate environmental benefits if it can induce consumers to purchase products
that have smaller environmental footprints than what they otherwise would have purchased
or if it can induce consumers to reduce consumption entirely. In turn, changed market
demand leads producers to strive for more sustainable production. Drawing on behavioural
economics literature, we argue that the best labels are whole process labels that allow con-
sumers to make cross-product comparisons.
Finally, we take up normative critiques of the eco-labelling tool: first, that it raises serious
equity concerns that must be dealt with; and, second, that sole reliance on eco-labelling, in
the absence of traditional environmental law, accepts the neoliberal consumption paradigm
for environmental change and thus promises only ‘weak sustainability’.65
44.3.1 Will an Eco-label Work?

44.3.1.1 Labelling Methodology
A label is only as good as the information that it conveys. For an eco-label to generate
environmental benefits it must convey accurate information about a product’s environmental
65 Weak sustainability emphasizes ‘reducing the environmental impact of each unit of economic
activity and addressing individual parts of the economy, such as firms or sectors, without an holistic
approach to the environment’. By contrast, ‘strong sustainability’ begins with the ‘specification of
environmental quality to be achieved’, and prioritizes environmental goals over economic growth.
D.C. Gibbs, J. Longhurst, and C. Braithwaite, ‘ “Struggling with Sustainability”: Weak and Strong
Interpretations of Sustainable Development Within Local Authority Policy’ (1998) 30 Environment &
Planning A 1351, at 1352–53.
eco-labelling 1009
costs and benefits. Creating an effective label programme is a complicated task, and can be
understood in three stages. First, programme designers must pick subjects to label and label
types. Second, they must develop standardized metrics for assessment, and, finally, they
must apply those metrics to determine whether individual products have earned (or
require) labels, or, in the case of neutral ranking schemes, how those products rank. All
three stages pose significant technical challenges.
The first stage—category selection—is not always done with great intention. For instance,
where a manufacturer or retailer decides that a label may benefit market share, whether or
not that product is well-suited to a label may not drive label development. But product
categories matter.66 For example, research on carbon footprinting shows that there are
product categories that have high variability in footprints within a singular category, so it
makes sense to inform consumers about these differences, as it ‘will give them genuine
options that make a difference’ since ‘consumers need options, not just information’.67
At the second stage, the challenge of developing standardized assessment methodology
becomes increasingly complex as designers move from single metric product labels (e.g.
biodegradable or not) to multi-metric process claims (e.g. environmentally friendly). For
an entire process label, developers must identify environmental life cycle analysis methods
and/or best practices standards. Designers need to consider natural resource and chemical
inputs (starting at the production process or raw extraction stage), and emissions and
pollution output during the production, distribution, use, and disposal stages. The key is to
inventory materials that make up products and are used in production, but equally
important and more difficult to determine is how to inventory their environmental impact.
Designers face a choice between outcome-based measurable environmental life cycle
analysis and a best practices process approach. The former requires quantifying and
assessing environmental impacts associated with all the stages of a product’s life from
‘cradle-to-grave’.68 The latter focuses on identifying practices (including processes and
ingredients) that, if implemented properly would make a product more environmentally
friendly; certifiers need not assess environmental impacts of each individual product.
66 K. J. Bonnedahl and J. Erikkson, ‘The Role of Discourse in the Quest for Low-Carbon Economic
Practices: A Case of Standard Development in the Food Sector’ (2010) 29 European Management Journal
165, at 173.
67 T. Berry, D. Crossley, J. Jewell, ‘Check-out Carbon: The Role of Carbon Labelling in Delivering
a Low-carbon Shopping Basket’ (June 2008) Forum for the Future 7, 12, available at: https://www.
forumforthefuture.org/sites/default/files/project/downloads/check-out-carbon-final300608.pdf.
68 National Risk Management. Research Laboratory, Office of Research & Development, US EPA, Life
Cycle Assessment: Principles and Practice, EPA/600/R-06/060, 1 (May 2006) (hereinafter EPA, Life Cycle
Assessment: Principles and Practice) (‘Life cycle assessment is a “cradle-to-grave” approach for assessing
industrial systems. “Cradle-to-grave” begins with the gathering of raw materials from the earth to create
the product and ends at the point when all materials are returned to the earth. LCA evaluates all stages
of a product's life from the perspective that they are interdependent, meaning that one operation leads to
the next. LCA enables the estimation of the cumulative environmental impacts resulting from all stages
in the product life cycle, often including impacts not considered in more traditional analyses (e.g., raw
material extraction, material transportation, ultimate product disposal, etc.). By including the impacts
throughout the product life cycle, LCA provides a comprehensive view of the environmental aspects of
the product or process and a more accurate picture of the true environmental trade-offs in product and
process selection.’).
An environmental life cycle analysis is more difficult and costly to generate,69 but is
more precise.
Another approach to entire process neutral labels is life cycle costing. Purchase prices
reflect only a narrow range of product information, typically those relating to direct supply
chain costs such as labour and inputs. Prices fail to incorporate indirect supply chain costs
(environmental and social externalities) and benefits (generated eco-system services). Life
cycle costing (LCC) is designed to fill this gap by evaluating the costs and benefits of a prod-
uct throughout its entire life cycle.70 LCC builds on life cycle assessment (LCA) by translat-
ing these impacts into a single metric—monetary cost.
LCA is a scientific, structured, and comprehensive method that is internationally stand-
ardized by the ISO through standards 14040 and 14044. For practitioners of LCA, ISO 14044
details the requirements for conducting an LCA that addresses the environmental aspects
and potential environmental impacts (e.g. use of resources and the environmental conse-
quences of releases) throughout a product’s life cycle from raw material acquisition through
production, use, end-of-life treatment, recycling, and final disposal.71 There are four phases
in an LCA study: (a) the goal and scope definition phase; (b) the inventory analysis phase;
(c) the impact assessment phase; and (d) the improvement analysis phase.72 The International
Reference Life Cycle Data System (ILCD) Handbook further specifies the broader provisions
of the ISO 14040 and 14044 standards on environmental life cycle assessment.73
LCA quantifies resources consumed and emissions generated, as well as the environmental
and health impacts that are associated with any specific goods or services, covering climate
change, smog, toxicity, human cancer effects, and material and energy resource depletion.74
‘Crucially, it allows for direct comparison of products, technologies and so on based on the
quantitative functional performance of the analysed alternatives.’75 LCA is increasingly
being used in a market context in communication with business customers, often through
published environmental product declarations.76
69 Department for Environment Food and Rural Affairs (DEFRA), 'Effective Approaches to
Environmental Labelling of Food Products, FO0419 4 (24 July 2010), available at: http://randd.defra.
gov.uk/Document.aspx?Document=FO0419_9996_FRP.pdf (‘Our principal conclusion from the work
that has been undertaken in this project is that we do not believe that the science is sufficiently robust
to develop an outcome-based, environmentally broad, omni-label at this time. Additionally, the costs
that such a scheme may incur could be unacceptably high in relation to the potential benefits that
could be realised.’).
70 D. C. Dragos and B. Neamtu, ‘Sustainable Public Procurement in the EU: Experiences and Prospects’
in F. Lichère et al. (eds.), Modernising Public Procurement: The New Directives (Denmark: DJØF Publishing,
2014), 324.
71 International Organization for Standardization (ISO), ISO 14044, Environmental Management—
Life Cycle Assessment—Requirements and Guidelines.
72 EPA, Life Cycle Assessment: Principles and Practice, EPa/600/r-06/060, at iv. ‘The major stages in
an LCA study are raw material acquisition, materials manufacture, production, use/reuse/maintenance,
and waste management.’
73 European Commission, The International Reference Life Cycle Date System (ILCD) Handbook,
JRC Conference Reports 7 (2012), available at: http://eplca.jrc.ec.europa.eu/uploads/JRC-Reference-
Report-ILCD-Handbook-Towards-more-sustainable-production-and-consumption-for-a-resource-
efficient-Europe.pdf (hereinafter ilcd Handbook). See also Greenhouse Gas Protocol, Product Life Cycle
Accounting and Reporting Standards (World Resources Institute and World Business Council for
Sustainable Development, 2011).
74 ILCD Handbook, at 8. 75 Ibid. 76 Ibid., at 16.
eco-labelling 1011
LCA relies on five principles: (1) bringing a wide range of environmental problems into
an integrated assessment framework; (2) capturing these problems in a scientific and quan-
titative manner; (3) allowing environmental pressures and impact potentials to be related to
any defined system, such as a particular type of goods, a service, a company, a technology
strategy, a country, etc.; (4) integrating the resource use and emissions over the entire life
cycle of the analysed system, from the extraction of natural resources through material
processing, manufacturing, distribution and use, up to recycling/energy valorization and
the disposal of any remaining waste; and (5) facilitating comparisons of the environmental
performance of different systems/options on an equal basis and helps to identify areas for
improvement.77 Environmental LCA is ‘structurally open’ to growing into LCC, where
cost is integrated.78 As noted by the European Commission in 2012, an integrated, authori-
tative approach for such an integrated life cycle sustainability assessment still needs to be
developed.79 In other words, an authoritative LCC methodology is the next step.
Although a widely accepted LCC methodology does not yet exist, many approaches
(often proprietary) are gaining traction. LCC methodologies were adopted first in the fol-
lowing markets: office and server IT equipment, vehicles, lighting, fuel, and furniture; services
such as electricity, transport, waste handling, and catering beverages; and works such as
construction of new buildings or refurbishment of existing buildings, railways, and roads.80
Some industries, including paper, food catering, couriers and postal services, and landscaping,
have partially implemented LCC.81
LCA and LCC pose challenges not just because the data is complicated, but also because
the data is incomplete. Data complexity and incompleteness results from: (1) the large number
of variables to consider, including raw material extraction, processing, packaging, and dis-
tribution; (2) the geographic and material (e.g. ingredients) complexity of the supply chain;
and (3) industry unwillingness to share proprietary information about the e nvironmental
externalities of their supply chain. For example, a major orange juice producer would get
oranges from hundreds of groves, use multiple processing plants to manufacture the end
product and pack for distribution, and ship the juice around the world. The data on those
hundreds of groves is highly variable and costly to collect, and competitors are unlikely to
share information that, while helpful to the environment, might make them less competi-
tive; for example, sharing a method to juice oranges that is more energy efficient.
This discussion just scratches the surface of the technical challenges of developing a well-
functioning eco-label scheme. In particular, it highlights the need to invest in development
of standardized LCA and LCC methods that can support entire process label schemes.
44.3.1.2 Label Legitimacy

Even assuming validity of the underlying methods used to gather and evaluate the informa-
tion supporting a label, that label is only as effective as the public trust in its promise.
Legitimacy concerns plague both private and public eco-label schemes.
Among private schemes, first-party or self-declared labels can be particularly problem-
atic in large part because consumers often do not have access to the information on which
claims rest. The increase in unverifiable and non-third-party certified eco-labels can create
77 Ibid., at 17. 78 Ibid., at 20. 79 Ibid.

80 Dragos and Neamtu, ‘Sustainable Public Procurement in the EU’, at 332. 81 Ibid.
confusion and scepticism among consumers, who may not trust the word of private
profit-seeking corporations. Third-party certified labels can mitigate these concerns, but can
themselves be subject to criticism if the certification process is not sufficiently transparent
or if there is reason to question the third party’s neutrality.
In the United States, federal and state consumer protection laws serve as the primary tool
to ensure the legitimacy of both first-party and third-party eco-labels. These laws focus on
limiting deceptive marketing, but they do not require producers to disclose the basis of
their marketing claims. At the federal level, the Federal Trade Commission (FTC), imple-
menting the Federal Trade Commission Act, polices green marketing claims. At the state
level, many states protect consumers from exaggerated label claims. Recent consumer class
action litigation, brought under state and federal law, has successfully reined in some of the
most flagrant label abuses.
The FTC regulates ‘[u]nfair methods of competition in or affecting commerce, and unfair
or deceptive acts or practices in or affecting commerce’.82 Pursuant to this authority, the
FTC has promulgated non-binding industry guidelines—Guides for the Use of Environmental
Marketing Claims (‘Green Guides’) to inform marketers on when ‘environmental claims in
labeling, advertising, promotional materials and all other forms of marketing’,83 may be
potentially misleading or deceptive.84 The Green Guides occupy a middle space between
legally mandatory and truly voluntary, and receive some deference from the courts. ‘If a
marketer makes an environmental claim inconsistent with the guides’, the FTC may take
action if it determines that the conduct violates section 5 of the FTC Act.85
The Green Guides contain the FTC’s five general requirements for all advertising claims:86
(1) claims must be substantiated; (2) claims may not be overbroad and unqualified; (3) com-
parative claims must state the basis for comparison; (4) claims ‘should not exaggerate or
overstate attributes or benefits’; and (6) claims should not use ‘symbols or seals of approval
82 Federal Trade Commission Act, 15 U.S.C. § 45. Additionally, the Lanham Act creates a civil cause of
action, which could be brought by a consumer or a competitor, for false advertising. 15 U.S.C. § 1125(a).
83 ‘Whether asserted directly or by implication, through words, symbols, emblems, logos, depictions,
product brand names, or through any other means, including marketing through digital or electronic
means, such as the Internet or electronic mail.’ 16 C.F.R. §§ 260.1–260.17.
84 16 C.F.R. §§ 260.1–260.17. While first published in 1992, the Green Guides were revised in 1996
and 1998. D. Gibson, ‘Awash in Green: A Critical Perspective on Environmental Advertising’ (2009) 22
Tulane Environmental Law Journal 423 (citing 61 Fed. Reg. 53,311 (11 October 1996); 63 Fed. Reg. 24,240
(1 May 1998)). The ISO has also developed guidelines for self-declared, or type II, labels. ISO, Reference
No. ISO 14021, Environmental Labels and Declarations—Self-Declared Environmental Claims (Type II
Environmental Labelling) (1999). See also D. A. Wirth, ‘The International Organization for Standardization:
Private Voluntary Standards as Swords and Shields’ (2009) 36 Boston College Environmental Affairs
Law Review 79, 81, 89. As a consequence, according to ISO standards, eco-labels must be ‘accurate,
verifiable, relevant, not misleading’, and ‘based on scientific methodology that is sufficiently thorough
and comprehensive to support the claim’. ISO 14020, §§ 4.2.1, 4.4.1. Staffin, ‘Trade Barrier or Trade
Boon’, at 215 (citing 16 C.F.R. 260.3).
85 16 C.F.R. § 260.1. For more details about conduct that the FTC will consider to be deceptive, see
Cliffdale Associates, Inc., 103 F.T.C. 110, 176, at 176 fnn. 7, 8, Appendix, reprinting letter dated 14 October
1983, from the Commission to The Honorable John D. Dingell, Chairman, Committee on Energy and
Commerce, US House of Representatives (1984).
86 j. T. Rosch, Responsible Green Marketing, FTC Report (18 June 2008), available at: http://www.ftc.
gov/speeches/rosch/080618greenmarketing.pdf.
eco-labelling 1013
whose significance the public doesn’t understand’.87 When a party makes an ‘express or
implied’ assertion of an environmental attribute, the party should rely upon a reasonable
basis, based on ‘competent and reliable scientific evidence’, that substantiates the claim.88
Qualifications and disclosures ‘should be clear, prominent and understandable to prevent
deception’.89 Claims should not expressly, or impliedly, overstate environmental attributes,
nor should they make comparative statements without expressly indicating the basis for
comparison.90
The Green Guides offer a non-exhaustive survey of non-compliant environmental claims.91
In many instances, first-party eco-labels of food products imply claims of broad environ-
mental benefits (e.g. ‘sustainable’, ‘responsibly sourced’). Without sufficient qualification,
broad environmental claims can ‘convey that the product, package or service has specific
and far-reaching environmental benefits’.92 The Green Guides offer an example of a non-
compliant general environmental claim that results from an unqualified eco-label:
Example 5: A product label contains an environmental seal, either in the form of a globe icon,
or a globe icon with only the text “Earth Smart” around it. Either label is likely to convey to
consumers that the product is environmentally superior to other products. If the manufacturer
cannot substantiate this broad claim, the claim would be deceptive. The claims would not be
deceptive if they were accompanied by clear and prominent qualifying language limiting the
environmental superiority representation to the particular product attribute or attributes for
which they could be substantiated, provided that no other deceptive implications were created
by the context.93
The FTC often focuses enforcement on categorical claims that are verifiably false and on
instances of collusion between ‘third-party’ certifiers and companies seeking certification.
For instance, in July 2013, the FTC pursued actions against three mattress companies that
misrepresented the green virtues of their products.94 The FTC’s actions focused on the
claims that the mattresses were ‘free of ’ VOCs or other chemicals, and in the case of one of
the companies, the FTC found that a seal of approval misrepresented that a third-party
certifier was independent when in fact it was an alter ego of the company.95
Although both federal and state law creates a general framework for policing exaggerated
or outright false environmental claims, these frameworks remain clumsy, meaning the
87 Ibid.
88 16 C.F.R. § 260.2. ‘ “Competent and reliable scientific evidence” is defined as tests, analyses,
research, studies or other evidence based on the expertise of professionals in the relevant area, con-
ducted and evaluated in an objective manner by persons qualified to do so, using procedures generally
accepted in the profession to yield accurate and reliable results.’ 16 C.F.R. § 260.2. For further detail on
the reasonable basis, the Green Guides refer to the FTC’s Policy Statement on the Advertising
Substantiation Doctrine, 49 Fed. Reg. 30999 (1984); appended to Thompson Medical Co., 104 F.T.C. 648
(1984). For further detail on the reasonable basis, the Green Guides refer to the FTC’s Policy Statement
on the Advertising Substantiation Doctrine, 49 Fed. Reg. 30999 (1984); appended to Thompson Medical
Co., 104 F.T.C. 648 (1984).
89 16 C.F.R. § 260.3. 90 16 C.F.R. § 260.3. 91 16 C.F.R. §§ 260.4–17.
92 16 C.F.R. § 260.4. 93 16 C.F.R. § 260.6.
94 L. Fair, ‘FTC to Mattress Companies: Don’t Pad Your Green Claims’ Business Center Blog (25 July
2013), at http://www.business.ftc.gov/blog/2013/07/ftc-mattress-companies-dont-pad-your-green-claims.
95 Ibid.
legitimacy concerns persist for both first- and third-party eco-labels. Government-
sponsored label programmes may also suffer from legitimacy concerns. These concerns
may arise where a public standard-setting process lacks transparency or where there are
perceptions of regulatory capture of the standard-setting process. For instance, in the
United States, there is widespread public perception that the development of federal organic
standards caters to the interests of ‘big organic’—the industrial organic growers and pro-
cessers—rather than to the underlying values of the programme.96 As evidence, commen-
tators point to the make-up of the National Organic Standards Board, the standard-setting
body, and to the National List, a lengthy list of non-organic additives identified by the Board
that may be used in organic products.97 Public sector programmes may also be subject to
legitimacy concerns where the agency has inadequate resources, or for some other reason,
fails to undertake adequate enforcement. In developing countries, label legitimacy is faced
with particular criticism. The lack of an internal system for auditing, certification, and com-
pliance has forced many developing countries to rely on outside, expensive foreign consult-
ants. Governments seeking to enforce international labelling standards face challenges
related to regulatory cost burdens and oversight management.98
Additional challenges for governments include the market implications of bringing
industries and practices into compliance with label criteria. Mandatory labels that force the
producer to go through the certification process may act as a market barrier for that product.
‘The burden of complying with [product standards] may fall disproportionately on small
suppliers to the market for whom the cost of acquiring information about, and achieving,
certifiable status and standards is relatively higher.’99
44.3.1.3 Understanding Consumer Behaviour

Accurate and trustworthy labels may nevertheless do little to influence consumer behav-
iour. Eco-labels must clear two additional hurdles: first, they must convey information that
consumers care about, and, second, they must do so in an understandable manner. The
former is a challenge for eco-labels because ‘[i]t is unlikely that a consumer pays attention
to an environmental label unless he or she values protecting the environment, perceives
buying (more) environmentally friendly products as an effective means to achieve this
goal . . . and perceives the information that the label conveys as useful for this purpose’.100
Many consumers decline to pay extra for products that generate public environmental
benefits of which the consumer will share in only a small portion, if any. The calculus is dif-
ferent in the context of health-related product claims. For instance, a label promising a
product is free of a particular carcinogen generates benefits directly for the consumer. In the
organic context, consumers often list environmental concerns as a weak motivator whereas
96 See e.g. J. E. Sununu, ‘Uncle Sam Subverts Organic Farming’ Boston Globe, 16 July 2012.
97 See ibid.; 7 U.S.C. § 6517 (establishing procedure for development and maintenance of the national
list).
98 United Nations Food & Agricultural Organization, Product Certification and Ecolabeling for
Fisheries Sustainability, Opportunities and Concerns with Ecolabels, at: http://www.fao.org/docrep/005/
y2789e/y2789e08.htm.
99 Ibid.
100 J. Thøgersen, ‘Psychological Determinants of Paying Attention to Eco-Labels in Purchase
Decisions: Model Development and Multinational Validation’ (2000) 23 Journal of Consumer Policy 285,
at 290 (citations omitted).
eco-labelling 1015
personal health concerns are a strong motivator.101 Further, a growing numbers of consumers
do derive personal benefit, either in the form of reputational benefit or in the form of satis-
faction at having done the right thing, for purchasing eco-products. Research indicates,
however, that consumers are often more responsive to negative information—they are more
likely to avoid the bad than seek out the good.102
Overall success of eco-label schemes remains limited by low consumer support.103 Eco-
labels tend to be more effective among consumers who already have a high degree of
environmental concern.104 In instances where consumers’ environmental concerns compete
with other concerns, such as product effectiveness, then the power of eco-concern to shape
a purchasing decision is weakened.
Eco-labels may also be limited in their ability to influence consumer behaviour in
situations where an eco-labelled product will not perform as an exact substitute for a con-
ventional product.105 And, critically, consumers often rely on particular products or brands
of products as a social marker that may be necessary to maintain their jobs, their social
standing, or their place within a community.106
Even for consumers who value public goods, a variety of challenges related to ability to
process information may hinder eco-label effectiveness. As Cass Sunstein and others have
pointed out, ‘people have limited ability to process information’.107 Behavioural heuristics
that undermine rational purchasing decisions include: optimism bias—the belief that you
are less likely than average to get cancer or other diseases; alarmist bias—the tendency to
overstate risks that you are more familiar with; and present bias—the tendency to overvalue
present costs and benefits as opposed to future cost and benefits. We do not have space here
to elaborate on how these and other heuristics can undermine eco-label programmes, but,
if not properly accounted for in label design, they can undermine effectiveness or even
make a label counterproductive.
One other information processing concern requires specific mention. At this moment
in the history of eco-labels, when, as described above, methods for whole process labels
are in their infancy, consumers face two inverse and interrelated problems: information
flooding and information gaps. Consumers must manage a glut of information about
101 M. J. Pollans, ‘Bundling Public and Private Goods: The Market for Sustainable Organics’ (2010) 85
New York University Law Review 621.
102 G. Granvist, U. Dahlstrand, and A. Biel. ‘The Impact of Environmental Labelling on Consumer
Preference: Negative vs. Positive Labels’ (2004) 27(2) Journal of Consumer Policy 213–30.
103 M. P. Vandenbergh, ‘Climate Change: The China Problem’ (2008) 81 Southern California Law
Review 905, at 952.
104 S. Bamberg, ‘How Does Environmental Concern Influence Specific Environmentally Related
Behaviors? A New Answer to an Old Question’ (2008) 23(1) Journal of Environmental Psychology 21–32;
P. C. Lin and Y. H. Huang, ‘The Influence of Factors on Choice Behavior Regarding Green Products
Based on the Theory of Consumption Values’ (2012) 22(1) Journal of Cleaner Production 11–18; J. T. Gerson,
P. Haugaard, and A. Oelson, ‘Consumer Responses to Eco-Labels’ (2010) 44(11) European Journal of
Marketing 1787–810.
105 C. L. Noblet and M. F. Teisl, ‘Eco-labelling as Sustainable Consumption Policy’ in L. A. Reisch and
J. Thogerson (eds.), Handbook of Research on Sustainable Consumption (Cheltenham: Edward Elgar
Publishing, 2015), 300–12.
106 J. Schor, Plenitude: The New Economics of True Wealth (New York: Penguin, 2010).
107 C. R. Sunstein, ‘Informational Regulation and Informational Standing: Akins and Beyond’ (1999)
147 University of Pennsylvania. Law Review 613, at 626.
various product and process characteristics.108 This flooding can lead consumers to give
up. Without a meaningful rubric for managing it all, consumers abandon efforts to make
eco-friendly decisions, or make those decisions only in some areas of their lives but not
in others. As Professor Richard Stewart observed, ‘environmental problems are inherently
complex and are characterized by significant uncertainties. Yet, without single metrics
that can synthesize a wide-variety of information—efforts to communicate fully such
complexities and uncertainties would produce information overload, leading people to
simply disregard . . . the communication. . . . Accordingly, communicators must digest, sim-
plify, and summarize information in order to communicate it effectively.’109
A proliferation of labels gives consumers large amounts of information, but no tools
for prioritizing among labels. Should you care more that a product is organic or that it is
biodegradable? Should you care more that a product was processed using chemicals that
may deplete the ozone or that it has a large carbon footprint? In other words, consumers
simply do not have an adequate rubric for choosing among products. This can be true in
a specified context: should I buy this organic local apple or that biodynamic imported
apple?110 But it is even more insidious across products. Should I buy this imported apple,
or that sandwich? Should I buy this new computer or should I use the money for a beach
vacation?
At the same time, even for consumers who do not give up, and who make genuine efforts
to make eco-friendly purchasing decisions in all aspects of their lives, missing information
can make good decision-making nearly impossible.
These various barriers to effective consumer decision making should inform not just how
to design an effective labelling scheme but also when labelling is an appropriate solution to
an environmental problem. The more complex and nuanced the environmental problem
the more challenging it will be to resolve it using information alone.
44.3.2 Eco-labelling Normative Concerns

44.3.2.1 Equity
Relying on information as a tool for environmental governance can raise equity concerns.
These concerns are particularly severe in the context of warning labels but are present in
other contexts as well. Numerous product-warning labels are designed to alert consumers
to health risks associated with using or consuming the product. Most such labels are pub-
licly mandated (or, at the very least, are added to labels by producers attempting to insulate
themselves from product liability claims). These labels thus rest on two assumptions: first, the
risk is significant enough that it merits a warning requirement; and, second, the consumer,
108 K. Bradshaw Schulz, ‘Information Flooding’ (2015) 48 Indiana Law Review 755; see also Sunstein,
‘Informational Regulation and Informational Standing’, at 627–28 (pointing out that consumers may
‘treat a large amount of information as equivalent to no information at all’).
109 R. B. Stewart, ‘A New Generation of Environmental Regulation?’ (2001) 29 Capital University Law
Review 21, at 141.
110 P. S. Menell, ‘Structuring A Market-Oriented Federal Eco-Information Policy’ (1995) 54 Maryland
Law Review 1435, at 1455 (noting that because eco-labels often ‘focus[] on narrow product categories . . .
the consumer cannot readily assess how that product compares to functionally similar but compositionally
different substitutes’).
eco-labelling 1017
once armed with the information, will be able to change their behaviour to avoid the risk.
They might do this by purchasing a different product or by using the product with care,
according to the use instructions. There are several problems with the second assumption.
Not all consumers are in a position to change their behaviour to avoid the risk. Barriers to
behaviour change include, among others, inadequate financial resources, insufficient free
time, and inability to read the language in which the label is written. In other words, infor-
mation does not ‘emancipate’ all consumers equally.111
Above, we discussed ‘willingness to pay’ as a critical factor to the success of an eco-label
scheme. If consumers do not care about and prioritize the characteristic captured in the
label, they will not pay a price premium for that characteristic. Willingness to pay is a func-
tion of consumer values—consumers will only pay for characteristics they care about. It is
also a function of ability to pay. For many consumers, the limiting factor is not whether or
how much they care about a particular characteristic but whether they can afford to express
that preference. According to the Copenhagen Research Institute, green product alterna-
tives can cost anywhere from 10–50 per cent more than conventional products.112 Likewise,
organic and fairtrade products can cost between 10–50 per cent more than their conven-
tional counterparts.113 Other studies suggest that the price mark-up on organic cotton
apparel could be as much as 33.8 per cent of the typical price for that item.114
Financial circumstances may also affect meaningful choice in other ways. For many,
exposure to toxics occurs not at home but in the workplace, where workers may have very
little control over whether or not they can follow product warning labels. For instance,
agricultural workers are regularly exposed to toxic pesticides despite FIFRA warnings. The
EPA estimates that there approximately 2.3 million farm workers who are employed by agri-
cultural establishments in the United States, all of whom may be exposed to adverse risks
associated with pesticide exposure.115 In 2013, five US states had an acute work-related
pesticide poisoning rate greater than 3.89 per 100,000 employed persons aged sixteen and
older.116 Another three states had a poisoning rate between 2.94–3.88 per 100,000 people.117
The EPA also administers a tracking system for Worker Protection Standard (WPS) viola-
tions. ‘All WPS violations are violations of the pesticide label which requires compliance
111 A. Gupta, ‘Transparency Under Scrutiny: Information Disclosure in Global Environmental

Governance’ (2008) 8 Global Environmental Politics 1, at 3 (describing information regulation as ‘poten-
tially emancipatory’).
112 Copenhagen Research Institute, Downstream: Pricing of Green Products, at: http://eng.mst.dk/
media/mst/68965/17.%20pricing%20of%20green%20products.pdf.
113 Ibid.
114 W. Nimon and J. Beghin, ‘Are Eco-Labels Valuable? Evidence from the Apparel Industry’ (1999) 81
American Journal of Agricultural Economics 801, at 804.
115 Environmental Protection Agency, Worker Protection Standard (WPS) Dashboard, echo.epa.gov,
available at: https://echo.epa.gov/help/pesticide-dashboard-help (based on 2012 Census data).
116 Centers for Disease Control and Prevention, Pesticide Illness and Injury Surveillance, at: https://
www.cdc.gov/niosh/topics/pesticides/animatedmap.html (last updated 7 February 2017). Centers for
Disease Control and Prevention, Count of Acute Pesticide-Related Illnesses by Year, All Participating
States 1998–2011, at: https://wwwn.cdc.gov/Niosh-whc/Home/Pesticides?T=ZY&V=C&S=+https://
wwwn.cdc.gov/Niosh-whc/Home/Pesticides?T=ZY&V=C&S=+lyButton=Apply+OptionsG (finding 853
poisoning cases in 2011 from the 11 states that reported data).
117 Centers for Disease Control and Prevention, Pesticide Illness and Injury Surveillance.
with the WPS.’118 In 2015, states reported 1,180 WPS pesticide label violations, up from 1,029
in 2014.119
Acting on information may also require free time not only to read the labels themselves
but also to research alternative choices and to understand what information a label does and
does not convey.120 Language can form a significant barrier. Many government-mandated
labels require that labels be in multiple languages, but even where the dominant two or three
languages are covered, significant segments of the population may nonetheless be unable to
read the label. This concern is even more serious in places with high levels of illiteracy.
These concerns are particularly acute in the case of publicly mandated warning labels, which
reflect a political consensus that exposure to particular products is risky enough to justify regu-
latory intervention. But they are also relevant in the case of positive product claims that relate
to the personal health of the product user. ‘[D]epending on whether and how consumers
understand the health claim, they will develop an attitude to the claim, which in turn may affect
the attitude to the product bearing the claim.’121 When language acts as a barrier to understand-
ing the health claim, consumers cannot accurately form attitudes towards products that claim
to provide some health-related benefit—such as high in omega-3, fat-free, or non-GMO.122
Consumer understanding of health claims is also impacted by other variables, such as the for-
mat, length, and wording of the claim.123 The terminology used in expressing the health claim
can impact the way consumers perceive ‘healthy’ versus ‘unhealthy’ products. In addition to
language and literacy barriers to understanding health claims, age tends to impact consumer
understanding of product labels. ‘Age can be associated with the lower processing capacity of
older people, and the fact that older people tend to perceive labels to be less understandable’
contributes to the ineffectiveness of health claims in achieving their intended purpose.124
It is possible that those without the ability to change their behaviour may nevertheless
benefit from an eco-label under some circumstances. If enough consumers change their
behaviour, a company may reformulate a product to exclude the risky ingredient. For
example, in response to Proposition 65, a number of settlement agreements required the
reformulation of listed chemicals contained in a wide range of products.125 In settlements
based on products containing lead, companies agreed to reformulate products ranging
from brass valves and padlocks to lotion dispensers.126 Where the extent of consumer
118 Environmental Protection Agency, Analyze Trends: Pesticide Dashboard, Violations by WPS

Regulated Facilities, at: https://echo.epa.gov/trends/comparative-maps-dashboards/state-pest-dashboard.
119 Ibid.
120 A. Gupta, ‘Problem Framing in Assessment Processes: The Case of Biosafety’ in Global Environmental
Assessments: Information and Influence (Cambridge M.A.: MIT Press, 2006).
121 J. M. Wills et al., ‘Nutrition and Health Claims: Help or Hindrance, European Consumers and
Health Claims, Attitudes, Understanding and Purchasing Behavior’ (2102) 71 Proceedings of the Nutrition
Society 229, at 230–31.
122 See ibid., at 233. 123 Ibid., at 231.
124 A. C. Drichoutis et al., ‘A Theoretical and Empirical Investigation of Nutrition Label Use’ (2008) 9
European Journal of Health Economics 293, at 301.
125 SafeGuards Consumer Products, California Proposition 65 Reformulation of Phthalates in Consumer
Products, sgs.com (6 April 2017), available at: http://www.sgs.com/en/news/2017/04/safeguards-05917-
california-proposition-65-reformulation-of-phthalates-in-consumer-products.
126 SafeGuards Consumer Products, California Proposition 65 Reformulation of Lead in Consumer
Products, sgs.com (10 April 2017), available at: http://www.sgs.com/en/news/2017/04/safeguards-06017-
california-proposition-65-reformulation-of-lead-in-consumer-products.
eco-labelling 1019
response does not lead to reformulation, however, these concerns suggest that large portions
of the population will not be able to protect themselves from risk and that more invasive
regulation may be justified where those risks are serious enough.
A second equity concern arises in the context of process labels—both positive and
negative—that relates to risk factors for workers along the supply chain. The primary audience
of FIFRA labels, on pesticides themselves, are pesticide applicators, those likely to themselves
face exposure. The primary audience of the organic label, by contrast, is food consumers.
The organic label nevertheless contains information about farm worker pesticide exposure—
workers on organic farms will not be exposed to any pesticides that do not meet the organic
standard. These labels thus place responsibility for worker protection on end of line con-
sumers. The fate of workers is thus tied up with consumer preferences and ability to pay.
A third equity concern relates to economic justice for producers in industries with certi-
fication programmes. Variation in opportunity and access to certification can parallel the
north-south divide and the smallholder versus large enterprise divide.127 Certification pro-
cesses and transition from producing conventional products to producing certified prod-
ucts can be extremely expensive and administratively burdensome. Certification can thus
exacerbate existing socio-economic stratification by limiting access to price premiums to
those with the means to obtain certification in the first instance.
Lastly, eco-labels can raise equity concerns where the process for developing certification
standards is non-inclusive. For example, in developing countries, non-inclusive and non-
transparent standard-setting processes have resulted in standards that do not suit the
needs of the regulated industry. These standards may end up ‘compet[ing] with national
public regulations or with international standard setting bodies, and becom[ing] a barrier
to exports of developing countries with high costs of conformity’.128 Where standard-setting
processes are non-inclusive of small producers in developing countries, those producers
are likely to be precluded from market participation by larger firms.129 In the international
fishing industry, economies of scale make it less expensive for larger fisheries to achieve
certification.130 Many national governments have been called upon to address the equity
concerns of small fisheries, which has typically resulted from exclusion from participation
in lucrative international fish markets.131
44.3.2.2 Consumerism and ‘Strong’ Versus ‘Weak’ Sustainability

Eco-labels can play an important role in fostering a transition to truly sustainable con-
sumption, but their role is necessarily limited in the context of individual consumption
because labels merely encourage making different consumption choices and ‘say[] nothing
about consumption itself ’.132
127 K. Thornber, ‘Certification: A Discussion of Equity Issues’ in E. Meidinger, C. Elliott, and G. Oesten
(eds.), Social and Political Dimensions of Forest Certification (Germany: Forstbuch, 2002).
128 International Trade Centre, Sustainability Standards and Their Role in International Trade and
Development 6 (2010), available at: http://www.fes-globalization.org/geneva/documents/Conference%20
Summary%20-%20v4%20(final).pdf.
129 OECD, Roundtable on Eco-Labelling and Certification in The Fisheries Sector 19 (2009), available
at: http://www.oecd.org/tad/fisheries/43356890.pdf.
130 Ibid. 131 Ibid.
132 R. E. Horne, ‘Limits to Labels: The Role of Eco-Labels in the Assessment of Product Sustainability
and Routes to Sustainable Consumption’ (2009) 33 International Journal of Consumer Studies 175, at 180.
Relying on eco-labelling as a primary sustainability strategy essentially shifts responsibility

for environmental governance to individuals. This concern may be reduced where eco-labels
are a tool for large industrial and government purchasers who have more resources to take
on the informational burden of understanding the environmental characteristics of given
products or services, and better capacity to effectively consider each isolated consumption
choice in the context of an entire consumption portfolio. For the reasons discussed above—
imperfect information, access, ability to pay—eco-labels are a less effective tool for managing
complex and wide-ranging environmental effects of goods and services whose consump-
tion, in the aggregate, are dominated by individual consumers as opposed to institutional
ones. All of these limitations mean that even the most well-meaning consumer is not likely
able to fundamentally transform the system of capitalist production and consumption
through their own individual choices.
Even assuming that a broad swath of consumers fully embrace eco-labelling, this transition
promotes only the ‘weak sustainability’ paradigm—buying ‘better’ consumer goods, but still
buying new consumer goods rather than focusing on reducing overall consumption. When
consumers shift to products that are marginally more eco-friendly than a conventional
product, they are still furthering demand for materials that must be extracted, manufactured,
and shipped. And they are still generating post-consumer waste.
Sustainable consumption advocates argue that substituting one product for another is
not sufficient; rather, to achieve ‘strong sustainability’, many individuals must consume less.
In practice this may mean abandoning certain products altogether while dramatically
decreasing consumption of other kinds of goods. Instead of purchasing improved new
products, as eco-labelling promotes, consumers must substitute with reused or repurposed
goods, or, in some cases, go without a particular good, thus fundamentally decreasing the
demand for the extraction of raw materials from the earth and the generation of pollution
and solid wastes.133 An eco-label scheme that effectively compares new versus second-
hand products could move part of the way toward responding to this concern, but would
still function within a consumption-based sustainability framework, providing no help to
the individual or institution in addressing the question of whether it is necessary to
acquire the product at all.
Although eco-labelling is better than no regulation at all, it should be viewed as a tool
that works best in conjunction with other regulatory instruments that demand certain cri-
teria in the production, processing, distribution, and disposal of consumer goods or even
that prohibit certain kinds of consumption, processes, and ingredients. Or, in instances
where implementing other regulatory instruments is not politically feasible, it should be
viewed as an intermediate second best,134 a substitute until there is political will for a more
comprehensive solution.
133 V. Castellani, S. Sala, and N. Mirabella, ‘Beyond the Throwaway Society: A Life-Cycle Based
Assessment of the Environmental Benefits of Reuse’ (2015) 11(3) Integrated Environmental Assessment
and Management 373–82; K. Ekström (ed.), Waste Management and Sustainable Conumption: Reflections
on Consumer Waste (London: Routlege, 2014); J. Schor, Plenitude: The New Economics of True Wealth
(New York: Penguin, 2010).
134 J. J. Czarnezki, ‘The Neo-Liberal Turn in Environmental Regulation’ (2016) Utah Law Review 1.
eco-labelling 1021
Eco-labelling schemes, whether public or private, can generate environmental benefits by

informing consumers about the environmental attributes of consumer goods. Producers
seeking to capture growing consumer demand for positive environmental attributes will
alter production processes and reformulate products in order to comply with eco-label cer-
tification requirements. These schemes are only as good as those certification requirements,
work only if consumers care enough and are able to change their behaviour, and can achieve
sustainability only when part of a larger environmental governance model incorporating
other regulatory tools in the toolkit. Public or third-party oversight can go a long way to
establishing the legitimacy of individual eco-labels, but additional work is needed to
improve the methods on which certification is based, to develop labels that allow for true
comparison across products, and to educate consumers about label meaning.

Czarnezki, J. J., ‘The Neo-Liberal Turn in Environmental Regulation’ (2016) Utah Law Review 1.
Gupta, A. ‘Transparency Under Scrutiny: Information Disclosure in Global Environmental Governance’
(2008) 8 Global Environmental Politics 1.
Minneti, J. J., ‘Article: Relational Integrity Regulation: Nudging Consumers Towards Products Bearing
Valid Environmental Claims’ (2010) 40 Environmental Law 1327.
Salzman, J., ‘Teaching Policy Instrument Choice in Environmental Law: The Five P’s’ (2013) 23 Duke
Stewart, R. B., ‘A New Generation of Environmental Regulation?’ (2001) 29 Capital University Law
Review 21, at 136 fn. 449.
Vandenbergh, M. P. et al., ‘Time to Try Carbon Labelling’ (2011) 1 Nature Climate Change 4, at 4.
Vermeer, D. et al., ‘An Overview of Ecolabels and Sustainability’ in J. S. Golden, (ed.), Certifications in
the Global Marketplace (Corporate Sustainability Initiative, Nicholas Institute for Environmental
Policy Solutions, Durham, NC: 2010), 33, available at: http://citeseerx.ist.psu.edu/viewdoc/download?
doi=10.1.1.466.6273&rep=rep1&type=pdf.
Matthias Vogt, Environmental Labeling and Certification Schemes: A Modern Way to Green the World
or GATT/WTO-Illegal Trade Barrier?, 33 ELR 10522 (2003).
E X P O ST
I N J U RY-BA SE D
M E C H A N ISM S
CHAPTER 45
En v ironm en ta l
Li a bilit y
Monika Hinteregger
45.1 Overview 1026

45.2 Existing Environmental Liability Systems 1027
45.2.1 International Regimes 1027
45.2.2 Important Heads of Liability Under Selected
National Tort Laws 1029
45.2.2.1 Fault-based liability 1029
45.2.2.2 No-fault liability for Pollution Damage 1030
45.2.2.2.1 Civil Law 1030
45.2.2.2.2 Common Law 1031
45.2.2.3 Product Liability 1032
45.2.2.4 Neighbourhood Law and Nuisance 1032
45.2.2.5 Burden of Proof, Defences, and Statute
of Limitation 1033
45.3 Specific Problems of Environmental Liability 1033
45.3.1 General Observations 1033
45.3.2 Causation 1034
45.3.3 Environmental Damage 1036
45.3.3.1 Damage to Persons, Property Damage,
and Pure Economic Loss 1036
45.3.3.2 Compensability of Environmental Loss 1038
45.3.3.3 Ecological Harm and Collective Redress 1038
45.3.4 Natural Resource Damage and Administrative Law 1040
45.3.5 Relationship Between Tort Liability and Environmental
Regulation1041
45.4 Concluding Remark 1041
1026 monika hinteregger
45.1 Overview
This chapter examines the potential and the limits of civil law for the prevention and
remediation of environmental harm. It first gives a short account of the liability regimes estab-
lished by international conventions and the basic rules of selected national tort laws, covering
the jurisdictions of some major civil law countries on the one hand and the common law
countries on the other.1 It then addresses the main problems of environmental liability, which
are proof of causation, legal standing for the remediation and compensation of environmental
damage, the evaluation of natural resource damage, and the interference between tort liability
and environmental regulation. It closes with a critical evaluation of the role of tort law for the
protection of the environment. The chapter concentrates on remediation and compensation
of environmental damage. It does not cover injunctive relief. The availability of injunctive
relief plays an important role for environmental protection, but follows quite different rules,
especially in the civil law jurisdictions which provide for specific claims for the recovery of
tangible things and for the protection of property rights from interference by another.2
Tort law has a very broad scope of application with respect to environmental pollution. It
covers simple pollution conflicts between neighbours, compensation claims for diseases
caused by pollution,3 and even catastrophic incidents, such as nuclear disasters4 or industrial
accidents with devastating effects on human beings and the environment.5 Tort law has
1 With respect to private law, most jurisdictions stand in the legal tradition of either the common law
(no comprehensive codification of private law rules, the law is shaped by courts—method of precedents)
or the civil law (comprehensive codification of private law rules, law is created by the legislator). The
common law was developed in England during the Middle Ages and spread across the continents in the
wake of British colonialism. This Anglo-American legal system now covers a series of big jurisdictions
all over the world: England and Wales, Ireland, the United States (except Louisiana), Canada (except
Quebec), Australia, New Zealand, India, etc. The civil law was developed in continental Europe on the
basis of Roman-Canon law and the customary laws of the countries (codifications: 1804 French, 1811
Austrian, and 1900 German civil code). In civil law a distinction can be made between the German
(Austria, Germany, Switzerland, Netherlands) and the Romanist tradition with France (as the mother
jurisdiction) including Belgium, Italy, Portugal, Spain, the South American countries, Louisiana, Quebec,
and to a certain degree also Egypt, Lebanon, and Syria. The Scandinavian countries (Nordic family) are
influenced both by common and civil law. Russia, China, Indonesia, and Japan also belong to the civil
law, but are regarded as distinctive groups. See B. Dölemeier, ‘Legal Families’ (European History Online,
1 December 2010), available at: http://ieg-ego.eu/en/threads/crossroads/legal-families; K. Zweigert and
H. Kötz, Einführung in die Rechtsvergleichung (Tübingen: Mohr Siebeck, 3rd edn. 1996); for a critical view
on the concept of legal families, see P. Glenn, ‘Comparative Legal Families and Comparative Legal
Traditions’ in M. Reimann and R. Zimmermann (eds.), The Oxford Handbook of Comparative Law
(Oxford: Oxford University Press, 2006), 421–40, at 437.
2 For overview and analysis see M. Hinteregger, ‘The Protection of Property Rights’ in S. van Erp and
B. Akkermans (eds.), Cases, Materials and Text on National, Supranational and International Property
Law (Oxford: Hart Publishing, 2012), 97–210.
3 e.g. Minamata disease caused by the pollution of sea water with mercury (Japan) or asbestos
claims (worldwide).
4 e.g. 1986 Chernobyl (nuclear plant accident in Ukraine), 2011 Fukushima (nuclear plant accident in
Japan after the Great East Japan Earthquake and Tsunami).
5 1975 Banqiao (dam collapse in China); 1984 Bhopal (escape of 45 tons of poisonous methyl isocyanate
from a chemical plant in India); 2010 Kolontar (collapse of the retaining wall of a caustic waste reservoir
of an alumina plant in Hungary); 2015 toxic mudslide into the Doce River in Brazil, and many others.
environmental liability 1027
important properties that can be of use for the protection of the environment. It provides
compensation for pollution victims (compensatory function) and, by making the polluter
pay for the damage caused, it serves the polluter-pays principle and can help to prevent pol-
lution (preventive function). The compensatory function of tort law finds its theoretical
basis in the fundamental principle of corrective justice,6 while the preventive function of
tort law is especially stressed by the economic theory of law, which analyses the role of tort
law primarily in view of economic efficiency and maximization of social welfare.7 According
to this theory, tort law must minimize the total costs of accidents comprising both the cost
of prevention and remediation of loss. In order to avoid the externalization of costs, tort law
must ensure that each economic actor takes all the potential costs of his activity into account
when performing an activity. Only then will a potential polluter conduct a correct cost-
benefit analysis and avoid an activity which is not worth its cost.
45.2 Existing Environmental

Liability Systems
45.2.1 International Regimes

There are several international conventions that provide for civil liability with relevance for
environmental harm. The most prominent are the nuclear liability conventions8 and the
conventions regulating oil pollution damage by ships.9 Both provide for elaborate but
6 H. Koziol, Basic Questions of Tort Law from a Germanic Perspective, trans. F. Salter-Townshend
(Vienna: Jan Sramek Verlag, 2012), 75 et seq.; A. Tunc (ed.), International Encyclopedia of Comparative
Law, vol. 11 (Leiden: Brill|Nijhoff, 1983), para. I-164 et seq.
7 R. Coase, ‘The Problem of Social Cost’ (1960) 3 Journal of Environmental Law 1; G. Calabresi, The
Costs of Accidents: A Legal and Economic Analysis (New Haven: Yale University Press, 1970); S. Shavell,
Economic Analysis of Accident Law (Cambridge: Harvard University Press, 1987); R. A. Posner, Economic
Analysis of Law (New York: Wolters Kluwer, 9th edn. 2014).
8 Convention on Third Party Liability in the Field of Nuclear Energy (signed 29 July 1960, entered into
force 1 April 1968) 956 UNTS 251 (Paris Convention; Protocols from 1964, 1982 and 2004); Convention
Supplementary to the Paris Convention of 29 July 1960 (adopted 31 January 1963, entered into force
4 December 1974) 1041 UNTS 358 (Brussels Supplementary Convention; Protocols from 1964, 1982 and
2004); Convention on Civil Liability for Nuclear Damage (adopted 21 May 1963, entered into force
12 November 1977) 1063 UNTS 265 (Vienna Convention); Joint Protocol relating to the application of the
Vienna Convention and the Paris Convention (adopted 21 September 1988, entered into force 27 April
1992) 1672 UNTS 293; Protocol to amend the Vienna Convention on Civil Liability for Nuclear Damage
(adopted 12 September 1997, entered into force 4 October 2003) 2241 UNTS 270 (1997 Vienna Convention);
Convention on Supplementary Compensation for Nuclear Damage (adopted 12 September 1997, entered
into force 15 April 2015) (1997) 36 ILM 1473 (CSC). For a comprehensive compilation of the national rules
governing nuclear activities in OECD and NEA countries, see https://www.oecd-nea.org/law/legislation;
a table on operator liability amounts and financial security limits is provided at https://www.oecd-nea.
org/law/table-liability-coverage-limits.pdf.
9 International Convention on Civil Liability for Oil Pollution Damage (adopted 29 November 1969,
entered into force 19 June 1975) 973 UNTS 3 (1969 CLC Convention), replaced by the Protocol of 1992 to
amend the International Convention on Civil Liability for Oil Pollution Damage (adopted 27 November
1992, entered into force 30 May 1996) 1956 UNTS 255 as amended by the Protocol of 2000); International
Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage
limited compensation systems. Limitations exist especially with regard to the territorial
application, the types of compensable damage, and the available compensation amounts.
Compensation for impairment of the environment is only awarded by the oil pollution
conventions and the new—not yet effective—nuclear liability conventions.10 Liability is strict,
covered by mandatory financial security, and exclusively channelled to the ship owner or
the operator of the nuclear installation. Claims may also be brought directly against the
insurer or another person providing for financial security.
International conventions governing liability for the transboundary movement of waste11
and the transboundary effects of industrial accidents12 have not yet entered into force. With
regard to damage caused by the transboundary movement of living modified organisms,
the 2000 Cartagena Protocol on Biosafety13 proposed in Article 27 the elaboration of a new
liability system, but the Nagoya-Kuala Lumpur Supplementary Protocol on Liability and
Redress to the Cartagena Protocol on Biosafety of 15 October 2010 does not provide for civil
liability. Contracting parties are, according to Article 12 of the Protocol, allowed to apply
their domestic law and to develop special civil liability rules and procedures. Not yet in
effect are the Convention on Civil Liability for Damage Resulting from Activities Dangerous
to the Environment of 21 June 1993 of the Council of Europe (Lugano Convention) that
would establish a comprehensive environmental liability regime, the International Convention
on Liability and Compensation for Damage in Connection with the Carriage of Hazardous
and Noxious Substances by Sea (HNS) of 3 May 1996,14 and the Convention on Civil
Liability for Damage Caused during Carriage of Dangerous Goods by Rail, Road, and
Inland Navigation Vessels (CRTD) of 10 October 1989. Liability of air carriers for damage
caused to persons other than passengers is covered by the Convention on Damage Caused
by Foreign Aircraft to Third Parties on the Surface by the International Civil Aviation
Organisation of the ICAO of 7 October 1952 (Rome Convention).15
(adopted 18 December 1971, entered into force 16 October 1978) 1110 UNTS 57, superseded by the Protocol
of 1992 (adopted 27 November 1992, entered into force 30 May 1996) 1953 UNTS 330, as amended by the
Protocol of 2000 (adopted 27 September 2000, entered into force 27 June 2001) and the 2003 Protocol on
the Supplementary Fund (adopted 16 May 2003, entered into force 3 March 2005), and the International
Convention on Civil Liability for Bunker Oil Pollution Damage (adopted 23 March 2001, entered into
force 21 November 2008). There is no international treaty on the liability for pollution caused by offshore
oil and gas operations. These are regulated by national law, see M. J. Faure, J. Liu, and H. Wang, ‘Analysis
of Existing Legal Regimes’ in M. Faure (ed.), Civil Liability and Financial Security for Offshore Oil and
Gas Activities (Cambridge: Cambridge University Press, 2017), 68–196, at 69.
10 Article I(f) 1997 CSC; Art. I(1)(k) 1997 Vienna Convention; Article I(B) 2004 PC-Protocol; Article
I(6) 1992 CLC.
11 Basel Protocol on Liability and Compensation for Damage resulting from Transboundary Movements
of Hazardous Wastes and their Disposal (adopted 10 December 1999).
12 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 (adopted 21 May 2003).
13 Cartagena Protocol on Biosafety to the Convention on Biological Diversity (adopted 29 January
2000, entered into force 11 September 2003) 2226 UNTS 208.
14 The Convention was superseded by 2010 HNS Protocol (2010 International Convention on Liability
and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances
by Sea 25 ILM 1406) which has not entered into force.
15 Liability for damage to passengers is regulated by the Convention for the Unification of Certain
Rules Relating to International Carriage by Air (adopted 12 October 1929, entered into force 13 February
1933) 137 UNTS 13 (Warsaw Convention) as amended by the Convention for the Unification of Certain
45.2.2 Important Heads of Liability Under

Selected National Tort Laws
45.2.2.1 Fault-based Liability
Civil liability for harm is traditionally subdivided into fault-based liability and liability
without fault, often called strict liability. While the Germanic countries draw a clear line
between fault-based liability and the notion of strict liability based on the riskiness of an
object (car, airplane) or activity,16 this is not so much the case in the Romanist law countries
which do not have such a clear theoretical concept of strict liability but rather see strict
liability as fault-based liability with presumed fault.17
In the civil law countries fault-based liability is regulated in the civil codes. The codes
provide either for a general clause18 or contain more elaborate descriptions of fault liability.19
The Germanic civil law jurisdictions distinguish between unlawfulness which relates to the
legality of the defendant’s act and fault as the assessment of the defendant’s b
lameworthiness.
An action under fault-based liability therefore must meet four requirements: actionable
damage, unlawfulness, fault, and causation. In the Romanist countries the criterion of unlaw-
fulness is not regarded as a separate requirement but is absorbed by the criterion of fault.
Fault is thus an unlawful conduct that violates an obligation or a duty imposed by law or
custom or a general standard of behaviour. In most civil law countries the assessment of
fault follows rather an objective standard. It is the result of a comprehensive assessment
comprising several factors, such as the magnitude of the risk, the gravity of the harm, the
cost of precautions, and the social utility of the defendant’s conduct.
In the common law jurisdictions the tort of negligence is the tort most similar to the concept
of fault-based liability in civil law. The tort of negligence is comprised of four elements:
actionable damage, duty of care, breach of duty, and causation. The plaintiff must show that
the defendant owed him a duty of care, that the defendant breached this duty, and that the
occurrence and type of damage was foreseeable.
Rules for International Carriage by Air (adopted 28 May 1999, entered into force 4 November 2003) 2242
UNTS 309 (Montreal Convention). The Warsaw/Montreal regime is the basis for the 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. Liability and (compul-
sory) insurance for the carriage of passengers by sea is regulated by the Athens Convention relating to
the Carriage of Passengers and their Luggage by Sea (adopted 13 December 1974, entered into force 28
April 1987) 1463 UNTS 20, as amended by the Protocol of 2002 (adopted 1 November 2002, entered into
force 23 April 2014) and the IMO Reservation and Guidelines for Implementation of the Athens
Convention adopted by the Legal Committee of the IMO on 19 October 2006. The EU adopted and
extended these rules in 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.
16 B. A. Koch and H. Koziol (eds.), Unification of Tort Law: Strict Liability (The Hague/London/
Boston: Kluwer Law International, 2002); F. Werro and V. Palmer (eds.), The Boundaries of Strict Liability
in European Tort Law (Durham: Carolina Academic Press, 2004).
17 P. Del Olmo, ‘Unknown Risk and Civil Liability in Spain: A Study of Spanish Law with some
French/Italian Comparative Remarks’ (2016) 7 Journal of European Tort Law 168, at 177.
18 For instance § 1295 Austrian civil code; § 927 Brazilian civil code; Art. 1240 (former 1382) et seq.
French civil code; Art. 415 Polish civil code; Art. 1902 Spanish civil code; Art. 709 Japanese civil code.
19 e.g. § 823 German civil code (BGB); Art. 6:162 § 2 Dutch civil code (BW); Art. 2 Chinese Tort Law
of 26 December 2009 (decree of the President of the People’s Republic of China No. 21).
In all jurisdictions specialists and professionals must usually meet a higher standard
according to their special knowledge and abilities. With regard to polluting activities, defend-
ants are thus required to comply with the state of the art and good practice in their profession.
45.2.2.2 No-fault Liability for Pollution Damage

45.2.2.2.1 civil l aw
Some civil law countries provide for specific strict liability regimes for certain activities in
their civil codes or in special statutes, which have some relevance for pollution damage.
Many Romanist countries employ a comprehensive and in practice very important no-fault
liability concept, according to which the custodian of a thing is responsible for the harm
caused by the thing (‘responsabilité du fait des choses’).20 Some countries have explicit rules
of strict liability in their civil codes. For instance, the Argentinian and Brazilian civil code
provide for comprehensive strict liability regimes for dangerous activities21 and the Spanish
civil code stipulates in Article 1908 strict liability for harm to persons and property caused
by toxic fumes.22 The Dutch civil code comprises several strict liability rules which are r elevant
for environmental damage,23 and under Article 435 of the Polish civil code any person who
runs an undertaking set into motion by natural forces (steam, gas, electricity, liquid fuel,
etc.) is strictly liable. Chapter IX of the Chinese Tort Law provides for strict liability for
ultra-hazardous activities comprising nuclear facilities, civil aircrafts, the possession or use
of dangerous materials, and excavation activities.
Other civil law countries do not provide for pollution related strict liability rules in their
codes, but have special statutes which put damage caused by the pollution of air or water,24
or specific activities dangerous to the environment25 under a rule of strict liability.
20 Article 1242 (former 1384) (1) French and Art. 1384 (1) Belgian civil code; Art. 1758 2015 Argentine
civil code. The 2002 Brazilian civil code does not provide this rule any more. Brazilian law instead pro-
vides for several strict liability provisions in the new civil code covering dangerous activities (Art. 927
civil code) and risks posed by animals or buildings (Arts. 936, 937, 938 civil code) and strict product liability
rules, introduced by the Consumer Protection Code (Law 8078/1990).
21 Article 1757 2015 Argentine civil code; Art. 927 2002 Brazilian civil code. In Portugal this is pro-
vided in a special statute: Art. 23 Portuguese Law No. 83 of 31 August 1995.
22 Moreover, Spanish courts tend to impose strict liability on the operator of abnormally dangerous
goods or activities although this is not explicitly provided by law, M. Hinteregger, ‘Comparative Analysis’
in L. Bergkamp et al. (eds.), Civil Liability in Europe for Terrorism-Related Risk (Cambridge: Cambridge
University Press, 2015), 185–206, at 187.
23 There is a special strict liability regime for the professional use or possession of dangerous sub-
stances (Art. 6:175 et seq.), for defective objects (movables: Art. 6:173; immovables: Art. 6:174) and for the
operator of a dump-site (Art. 6:176) or a borehole (Art. 6:177).
24 Japan provides for strict liability for the pollution of air and water by industrial entities that cause
personal injury or loss of life in Art. 25 Air Pollution Control Law (Law No. 97 of 1968) and Art. 19 Water
Pollution Control Law (Law No. 138 of 1970). Austria and Germany have special liability provisions for
the protection of water: § 89 German Wasserhaushaltsgesetz (Water Management Law); § 26 Austrian
Wasserrechtsgesetz (Water Law).
25 For instance concerning radiation from nuclear power plants, waste (English Environmental
Protection Act 1990, s. 73(6)), genetically modified organisms (Austria: § 79a–79m Gene-technology Act;
Germany: Law on Gene-technology of 16 December 1993; Poland: Law on Genetically Modified Organisms
of 22 June 2001).
Beside these sector-specific liability rules, more and more countries enact comprehensive
strict liability regimes specifically for environmental harm.26 Recent examples are provided by
Chinese and French law. Chapter VIII of the Chinese Tort Law provides for comprehensive
strict liability rules regarding environmental pollution. The polluter is liable for any harm
caused by environmental pollution (Article 65 Tort Law), and the burden of proof for
causation is shifted to the defendant (Article 66 Tort Law). In 2016, the French legislator
introduced a comprehensive strict liability regime for the reparation of ecological harm into
the civil code (Articles 1246–1252 civil code).
With regard to actions in strict liability several defences may apply. Usually, the defend-
ant will not be liable for damage caused by acts of war, hostilities, armed conflict, civil war,
insurrection, and natural disaster of an unforeseeable character, and in most countries, when
damage is caused because of the act of a third party.
45.2.2.2.2 c ommon l aw
The common law countries do not provide for comparable statutory rules of strict liability
with respect to environmental damage. Pollution damage is covered by the common law
doctrines of private and public nuisance and trespass to pollution damage which do not
require fault. In the nineteenth century, English case-law developed another cause of action
governing harm caused by the escape of a dangerous thing because of unnatural use of land:
the rule in Rylands v Fletcher.27 This rule took a quite different development in the various
common law jurisdictions. In the United States courts developed this rule into a compre-
hensive rule of strict liability for abnormally dangerous activities.28 The same happened in
India, where the Supreme Court expanded the rule in Rylands v Fletcher into a comprehen-
sive rule of strict liability for inherently dangerous industries that does not allow any excep-
tions.29 In England and Wales, however, the rule in Rylands v Fletcher was narrowed down
by subsequent court rulings. It now constitutes a sub-category of private nuisance which,
contrary to private nuisance which requires continuous interference with the land, extends
to sudden incidents.30 The rule in Rylands v Fletcher can only be invoked by persons with a
proprietary interest in the land affected and does not provide recovery for personal
26 See for instance, Argentina: General Environmental Act, No. 25, 675, s. 27; Brazil: Art. 14 § 1 of the
National Environmental Policy Act, Law No. 6938 from 31 August 1981; Germany: Law on Environmental
Liability of 10 December 1990, BGBl. 1990 I, 2634; Finland: Environmental Damages Act of 1994;
Indonesia: Art. 88 2009 Law on Environmental Management; Sweden: Chapter 32 Environmental Code.
27 Rylands v Fletcher [1866] LR 1 Ex 265; affirmed [1868] LR 3 HL 330: ‘[a] person who, for his own
purposes, brings on his lands and collects and keeps there anything likely to do mischief if it escapes,
must keep it in at his peril; and, if he does not do so, is prima facie answerable for all the damage which
is the natural consequence of its escape’.
28 See § 20 Restatement (Third) of Torts (2010): ‘1—An actor who carries on an abnormally dangerous
activity is subject to strict liability for physical harm resulting from the activity. 2—An activity is abnor-
mally dangerous if: a) the activity creates a foreseeable and highly significant risk of physical harm even
when reasonable care is exercised by all actors; and b) the activity is not one of common usage.’
29 M.C. Mehta v Union of India (UOI) and Ors. AIR [1986] 1987 SCR (1) 819.
30 Cambridge Water v Eastern Counties Leather plc [1994] 2 AC 264: single escape of dangerous substances
because of the unnatural use of the land; requirement of foreseeability (no liability for harm which the
defendant could not reasonably foresee).
injuries.31 Scotland32 never applied the rule in Rylands v Fletcher at all, and the Australian
High Court rejected the rule in Burnie Port v General Jones Pty. Ltd,33 holding the opinion
that the rule in Rylands v Fletcher is absorbed by the principles of ordinary negligence.
45.2.2.3 Product Liability

A further important cause of action for pollution-related damage is product liability which
subjects the producer (or even retailer) of defective products under specific no-fault l iability
obligations. Product liability covers damage to persons and property and is of important
relevance for product related pollution damage. The theory of product liability has received
worldwide recognition. In the United States, courts originally derived these rules from
traditional common law concepts, such as warranty or negligence.34 This comprehensive
case-law was then complemented by specific product liability statutes enacted by the indi-
vidual states. For the United States the theory of product liability used by most states is
summarized by section 2 of the Uniform Commercial Code and section 2 of the Restatement
(Third) of Torts: Products Liability (1998). In the European Union (EU) product liability is
regulated by the European Product Liability Directive,35 which subsequently became a
model for product liability legislation in many other jurisdictions all over the world.36
45.2.2.4 Neighbourhood Law and Nuisance

Many countries provide for specific rules concerning compensation for polluting interference
between neighbouring lands. These rules require a continuous, unlawful and indirect
interference (smoke, wastewater, noise, etc.) with the use or enjoyment of land. The right to
claim damages entails that the interference exceed a certain tolerance threshold. Historically,
these causes of action were the first legal tools available to victims of pollution. They still
play an important role in the compensation of pollution damage, as in most countries they
do not require fault on the part of the defendant to be established.
Many civil law countries provide for such rules in their civil code (laws of the neighbour
hood).37 In France a similar result is reached through case-law (‘troubles de voisinage’) and
in the common law countries the corresponding remedy is the action of private nuisance.
Both the laws of the neighbourhood and private nuisance have a somewhat restricted
scope of application. A damage claim arising out of the laws of the neighbourhood or nuisance
31 Hunter v Canary Wharf Ltd [1997] AC 655 [034].

32 RHM Bakeries (Scotland) Ltd v Strathclyde Regional Council 1985 SC (HL) 17.
33 Burnie Port v General Jones Pty. Ltd. [1994] HCA 13.
34 See e.g. MacPherson v Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (N.Y. 1916); Baxter v Ford Motor Co.,
168 Wash. 456, 12 P.2d 409 (Wash. 1932); Henningsen v Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69
(N.J. 1960); Escola v Coca Cola Bottling Co. of Fresno, 24 Cal. 2d 453, 150 P.2d 436 (Cal. 1944); Greenman v Yuba
Power Products, Inc., 59 Cal. 2d 57, 377 P.2d 897 (Cal. 1963); BMW v Gore, 517 U.S. 559, 116 S. Ct. 1589 (1996).
35 Council Directive 85/374/EEC on the approximation of the laws, regulations and administrative pro-
visions 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.
36 e.g. Argentina (1993); Australia (1992); Brazil (1990); Israel (1980, based on an early draft of the
Directive); Japan (1994); Malaysia (1999); Peru (1991); Russia (1992); South Africa (2009); South Korea
(2000); Switzerland (1992); Thailand (2007); see https://en.wikipedia.org/wiki/Product_liability.
37 e.g. § 364a Austrian civil code; Art. 1277 Brazilian civil code; § 906(2) German civil code (and § 14
German Federal Pollution Control Act—BimSchG); Arts. 1003 and 1108 Greek civil code; Art. 844 Italian
civil code, etc.
is only available to persons who have a close relationship to the affected land, such as the
owner or otherwise authorized occupant (e.g. tenant). This action covers primarily real
property damage, such as costs of repairs or diminution of the value of the property, but some
countries also allow recovery for personal injury and death (e.g. Belgium, France, Greece,
Italy, and Sweden), at least when consequential to property damage (England and Wales).
The common law provides for another tort of nuisance, not known in the civil law countries:
the tort of public nuisance. This tort covers interference with a public interest and can be
claimed by the state against a person who unreasonably interferes with a right common to
the public (public waters, air). Private parties can bring an action for public nuisance only
if they have suffered particular injury different from those suffered by the public at large. An
action in public nuisance allows recovery for personal injuries and property damage as well
as pure economic loss. Another tort applicable to pollution damage is the tort of trespass
which requires an actual physical invasion of another person’s possession of land.
45.2.2.5 Burden of Proof, Defences,

and Statute of Limitation
The burden for the proof of fault and causation usually lies with the plaintiff. Under certain
conditions, however, the burden of proof concerning the proof of fault can be lightened or
even shifted to the defendant.38 In this context it is important to note that there is a funda-
mental difference with respect to the required standard of proof. Most civil law countries
require that facts are established with high probability, but in the common law countries the
relevant standard of proof is the balance of probabilities.
Contributory negligence by the plaintiff usually leads to a reduction of the compensation
amount according to the doctrine of contributory negligence. After a certain period of time
tort law actions become statutorily barred. The limitation periods are, however, very inco-
herent, ranging from one to thirty years.
45.3 Specific Problems of

Environmental Liability
45.3.1 General Observations

Tort liability is a traditional and well-established instrument for the resolution of conflicts
between individuals. It comes to its limits when it is not possible to establish a clear causal
link between the polluter’s behaviour and the sustained damage and when the damage affects
38 Examples: § 831 German BGB (product liability); Art. 150 Dutch Code of Civil Procedure allows the
court to reverse the burden of proof if this is stipulated by a special statute or if it is seen to be reasonable and
fair; Art. 492 § 2 Portuguese Civil Code explicitly provides for a reversal of the burden of proof for dangerous
activities establishing a rebuttable presumption that the operator was at fault; Spain: ‘theory of risk’ according
to which the burden of proof lies with the person who profited from the introduction of a risk. In common
law the rule of res ipsa loquitur, according to which the court may infer negligence from the fact that the
accident causing the plaintiff ’s harm is a type of accident that ordinarily happens as a result of the negligence
of a class of actors of which the defendant is the relevant member, may lighten the plaintiff ’s burden of proof.
not the private rights of specific individuals but the environment as such. Causation issues
and the compensability of environmental damage thus need special attention. The same
applies to the relationship between tort liability and public environmental law.
45.3.2 Causation
Tort liability requires a sufficient causal link between the tortfeasor’s activity and the harm
sustained by the victim. This requirement is stressed both by legal doctrine and the eco-
nomic theory of law. Legal doctrine sees the causality requirement as a question of justice
as it would be utterly unfair to burden a person with a loss to which this person has no suf-
ficient connection. From an economic point of view it is essential to allocate damage costs
to the person who is in the best position to minimize these costs (cheapest cost avoider)
which requires that the liable person is able to influence the cost of potential damage by his
behaviour, namely the applied level of care.
Tort law usually provides that the causal link is established according to the ‘but for’
test (common law) or the ‘conditio sine qua non’ condition (civil law) which both require
that the harm would not have occurred without the tortious act. All tort law systems,
though, provide for diverse strategies to cope with cases where the causal link does not
pass this test. Typical constellations are the cases where (i) two or more separate acts
cause harm to a third party without the possibility of apportionment (concurrent causes),
(ii) two or more separate acts cause harm and each would have been in itself sufficient
to cause the harm (cumulative causality), or (iii) it cannot be established whether the
harm was caused by the tortious act of person A or person B (alternative causality). In
most jurisdictions the answer to such causality constellations is joint and several liability
of each tortfeasor.39 The defendant who has compensated the victim has then a right of
recourse against the other defendants. When one cause has taken effect before the other
(intervening causation), however, only the person who caused the damage first is liable.
For the exceptional and rare constellation of alternative causation by not only two, but
several possible tortfeasors the theory of market share liability was developed by the
California Supreme Court in the famous product liability case Sindell v Abbott Laboratories.40
While the US court attributed liability for the harm to each producer of the damaging
drug according to its share it held in the market, the Dutch and the French Supreme Court,
in cases concerning the same drug, went one step further and attributed joint and several
liability to all the defendant drug producers, although the plaintiffs were not able to show
causation by an individual producer.41 According to legal literature, the theory of market
39 Austria: § 1302 civil code; Germany: § 830(1)(2), 840(1), and § 426(1) civil code; Greece: Art. 926
civil code; Italy: Art. 2055 civil code; Portugal: Art. 490 and Art. 497 civil code; Ireland: Part III of the
Civil Liability Act 1961; Netherlands, Art. 6:102 civil code.
40 26 Cal. 3d 588, 607 P. 2d 924 (Cal. 1980).
41 HR 9 October 1992, NJ 1994, 535 (‘DES daughters’) and the ‘DES’ decisions of the French Supreme
Court: Cass.civ. 1, 24 September 2009, no 08-16305 and Cass.civ. 1, 28 January 2010, no 08-18837.
share liability should also be applied to pollution cases (‘pollution share liability’).42 When
damage is caused by multiple polluters courts may also apply the theory of proportionate
liability and apportion liability in proportion to each polluter’s contribution to the cumula-
tive total emissions. In Chinese law this is explicitly provided in Article 67 Tort Law.
Where it is difficult to establish causation due to factual obstacles, courts are often
inclined to lighten the plaintiff ’s burden of proof in the individual case.43 Those jurisdic-
tions which require a very high level of probability for the establishment of causation may
even provide statutory presumptions of causation covering specific types of damage (e.g.
water pollution) or certain dangerous activities.44
Statistical evidence alone is usually not sufficient to establish causation, unless the provided
degree of probability meets the certainty level required by the relevant jurisdiction. Another
problem of statistical evidence is that, in tort law, the causal link must always be established
between the individual tortfeasors and plaintiffs. Statistical evidence that shows only the
relationship between one possible tortfeasor and a group of harmed persons fails to meet
this requirement if the harm can also be attributed to a natural cause. In order to meet the
requirements of tort law for the establishment of causation, therefore, statistical evidence
usually must be supplemented by further evidence. Statistical evidence that a polluting
activity has increased the cancer rate in a community thus will only make the operator liable
to an individual plaintiff under tort law if further evidence shows, to the satisfaction of the
court, that the activity was the cause of the plaintiff ’s illness. In such constellations traditional
tort law reaches its limits, which, however, can be stretched with the introduction of class
action devices.
In Belgium and France, plaintiffs may obtain partial compensation according to the theory
of loss of a chance (‘perte d’une chance’). This theory was developed in medical law and can
theoretically also be applied to pollution victims. If, for instance, epidemiological evidence
shows that emissions from an installation create an increased risk of cancer for the neigh-
bourhood, victims may be compensated for their loss of the chance not to contract this
disease. They only need to show that it is certain they lost the chance to avoid illness to get
compensation. According to this theory, plaintiffs do not need to establish causation
between the polluting activity and the sustained damage, since the loss of the chance in
itself is already compensable damage. Compensation can be assessed either on the basis of
a percentage of the damage corresponding to the increase of the cancer rate in the community
or by equity.
Where it is not possible at all to establish a causal relationship, tort law loses its operational
capability. If economic or social reasons warrant compensation of such loss, it cannot be
provided by tort law but must be granted by other compensation systems, such as first party
insurance, social insurance, compensation funds, or compensation by the state out of public
funds. Compensation funds, however, are also established in order to avoid tort liability,
especially to solve cases of mass torts outside the court system or to protect vital industry
42 E. Friedland, ‘Pollution Share Liability: A New Remedy for Plaintiffs Injured by Air Pollutants’
(1984) 9 Columbia Journal of Environmental Law 297.
43 See e.g. Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32.
44 e.g. Austria: § 26(5) Water Law; Art. 66 Chinese Tort Law; Germany: § 6 Environmental Liability Law.
from detrimental tort litigation. This is comprehensively done in French law, which provides
for numerous compensations funds,45 but also in other countries, like Germany,46 Japan,47
or India.48
45.3.3 Environmental Damage

45.3.3.1 Damage to Persons, Property Damage,
and Pure Economic Loss
Civil liability traditionally covers damage to property and damage to persons, comprising
personal injury and death. This applies to fault-based liability and most strict liability rules
which, however, may also restrict their scope of application to certain goods, such as water
or vegetation (e.g. forests). The rules on neighbourhood liability49 only provide for restricted
coverage. They primarily relate to damage to land and restrict compensation for property
damage to damage that is caused by excessive interference. In many countries tort liability
will also cover the costs of preventive measures taken by the injured person or by public
authorities in order to prevent the occurrence or the enlargement of the damage.
Recovery of personal injury is usually comprised of damages for actual and future loss
of income, medical expenses, compensation for increased needs, such as costs of personal
assistance, and recovery of non-pecuniary damages, especially damages for pain and suf-
fering.50 When the victim has died, a cause of action for the funeral costs will be asserted,
and the dependents will be entitled to claim maintenance. In many countries claims for
non-pecuniary damage because of loss of consortium after the death of a relative are also
available. The risk of getting hurt or developing a certain disease in the future because of a
tortious act, like contamination with dangerous substances, may entitle to compensation
for the costs of medical monitoring, or the costs of preventive measures to reduce the risk
45 Persons injured by blood transfusions: Fonds d’indemnisation des transfusés et hémophiles atteints
du virus de l’immunodéficience humaine (Art. 47 de la loi no. 91–1406 du 31 décembre 1991); obligatory
insurers: Fonds de la garantie des assurances obligatoires de dommages (Loi no. 51–1508 du 31 décembre
1951); terror victims and victims of other criminal offences: Fonds de garantie des victimes des actes de
terrorisme et d’autres infractions (Loi no. 90–589 du 6 juillet 1990); asbestos victims: Fonds d’indemnisation
des victimes de l’amiante (Art. 53 de la loi du 23 décembre 2000 de financement de la sécurité sociale
pour 2001); victims of medical accidents: Office national d’indemnisation des accidents médicaux, des
affections iatrogènes et des infections nosocomiales (Art. L. 1142–22 du Code de la santé publique); and
victims of damage caused by the disposal of clearing sludge: Fonds de garantie des risques liés à l’épandage
agricole des boues urbaines et industrielles (Loi no. 2006–1772 du 30 décembre 2006).
46 For Thalidomide (Contergan) victims (Law of 25 June 2009, BGBl. I S. 1537); damage caused by the
disposal of clearing sludge (Regulation of 20 May 1998, BGBl. I S. 1250).
47 Victims of the Minamata disease: Act on Special Measures Concerning Relief for Health Damage
by Pollution, Act No. 90 of 1969; Victims of air and other environmental pollution: Pollution-related
Health Damage Compensation Law 1973, Law No. 111 of 1973; victims of the 2011 Fukushima nuclear
accident: Act on Emergency Measures of 5 August 2011 and Act on Swift and Secure Compensation of
11 December 2011.
48 Victims of accidents involving hazardous industries: Public Liability Insurance Act, No. 6 of 1991.
49 See section 45.2.2.4.
50 Austrian and Greek law also provide compensation for loss of professional and social advancement
if the injured person is disfigured (§ 1326 Austrian civil code; Art. 931 Greek civil code).
of attracting the disease, or to compensation for emotional distress.51 In many jurisdictions

an action for a declaratory judgment in order to prevent the elapse of the statute of limitations
may also be available.
Compensation for property damage (moveable property and damage to land) comprises
the right to claim restitution in kind of the damaged property or recovery of the reasonable
restoration costs. This claim also covers compensation for lost uses during the time of res-
toration, like the rental costs for the use of another object or the loss of rental income. If the
restoration costs are out of proportion, damages will only cover the diminution in value to
the damaged object, which may be significantly less than the restoration costs. In case of
damage to land the defendant will also be obliged to pay for the costs of restoration if this is
necessary in order to prevent further damage. If full clean-up is required by public law, clean-
up costs will be attributed either under public or civil law. In both cases the claimant will be
obliged to actually spend the money for the restoration of the land. There is no such obliga-
tion if the claimant only receives compensation for the diminution in value of the land.
In many countries recovery for loss not connected to, or resulting from, damage to person
or property (pure economic loss) is restricted.52 Other countries, especially those who follow
the Romanist law tradition, are more open in this regard. They only require the plaintiff to
show a personal and actual interest in the claim in order to have legal standing. In environ-
mental liability the question of pure economic loss is quite important as e nvironmental
pollution often has economic effects on persons who are dependent on the natural resource,
but do not own it, for instance the owner of a hotel on a public beach that suffers oil pollution.
Whether such damage is compensable or not thus varies in the different jurisdictions.53
In the majority of US states considerable punitive damages can be awarded in addition to
compensatory damages in order to punish a particularly blameworthy defendant and to
deter the defendant, and others, from engaging in similar behaviour in the future.54 The
idea of punitive damages is—with various restrictions—also accepted in many other common
law countries,55 but encounters high scepticism in the civil law jurisdictions.56
51 For the comprehensive discussion of compensability of the cost of medical monitoring or emotional
distress in US law, see for instance Friends for All Children Inc. v Lockheed Aircraft Corp., 746 F.2d 816
(D.C.Cir. 1984); Metro-North Commuter R.R. Co. v Buckley, 521 U.S. 424, 117 S. Ct. 2113 (1997), and Potter
v Firestone Tire & Rubber Co., 6 Cal. 4th 965, 863 P.2d 795 (Cal. 1993).
52 See M. Bussani and V. Palmer, Pure Economic Loss in Europe (Cambridge: Cambridge University
Press, 2003); W. Van Boom, H. Koziol, and C. Witting (eds.), Pure Economic Loss (Vienna/New York:
Springer, 2004).
53 See M. Hinteregger (ed.), Environmental Liability and Ecological Damage in European Law (Cambridge:
Cambridge University Press, 2008), 625 et seq.
54 See for instance TXO Prod. Corp. v Alliance Res. Corp., 509 U.S. 443, 113 S.Ct. 2711 (1993) and Exxon
Shipping Co. v. Baker, 554 U.S. 471, 128 S. Ct. 2605 (2008). In the United States the award of punitive dam-
ages is also highly contested and object of restrictive legislation by many states.
55 For instance England and Wales, Australia, New Zealand, and South Africa.
56 The German and Greek Supreme Courts declined the enforceability by execution of US court deci-
sions awarding high punitive damages on the ground that the awards were against ordre public (BGH in
BGHZ 118, 312; Greek Supreme Court (Full Bench) 17/1999, N.o.B. 2000, 461–4 ) and Japan even declines
enforceability by way of statute, § 22(2) General Act Related to the Application of Laws (2006), H. Koziol
and V. Wilcox (eds.), Punitive Damages: Common Law and Civil Law Perspectives (Vienna/New York:
Springer, 2009). The Italian Supreme Court originally also declined the enforceability of US punitive
damages (Cass. 19 January 2007, no. 1183, GI 2007, 12, 2724), but has changed its opinion in 2017 (Cass.
Sez.Un. 5 July 2017, no. 16601).
45.3.3.2 Compensability of Environmental Loss

The effectiveness of tort liability for the compensation and prevention of environmental
loss depends to a large extent on the recognition of environmental damage as compensable
damage under tort law. The notion of environmental damage is rather complex. Usually it
is understood in a twofold way as (i) harm to individual persons (personal injury, loss of
life, and property damage) caused by environmental pollution and (ii) impairment to the
environment. The latter is often referred to as ‘natural resource damage’ covering damage to
environmental goods, namely air, water, soil, flora and fauna, and the interaction between
these factors.57
While the first dimension of environmental damage is traditionally covered by tort
law, tort law encounters severe obstacles when confronted with the second dimension of
environmental damage, the impairment of environmental goods. If an environmental good
is harmed, traditional tort law will primarily entitle the owner of the good to claim the costs
incurred for the restoration of the good, or if restoration is not possible or unreasonable,
monetary compensation for the reduction in market value. Restoration may even comprise
the cost for measures of compensatory restoration.58 Traditional tort law, however, does not
ensure that the impaired good is restored because it is up to the claimant to decide whether
he wants restoration of the impaired good or just monetary compensation, which he is then
free to spend at his will. Moreover, if an environmental good has no market value, tort law
encounters fundamental difficulties for the evaluation and quantification of the harm.
Traditional tort liability thus needs supplementation by alternative methods of evaluation
and quantification of environmental harm and instruments of collective redress in order to
be effective.
45.3.3.3 Ecological Harm and Collective Redress

If the environmental good is not privately owned, or if the negative consequences of an
infringement do not fall into the private sphere of a person, the problem of legal standing
for the assertion of damage claims arises. The answers of the national jurisdictions to this
problem are quite different. The Romanist and the Scandinavian countries, which traditionally
have broad views on legal standing, allow interested individuals or environmental organiza-
tions to sue for the costs for the restoration of an impaired natural resource, or, if the good
cannot be restored, even for monetary compensation.59 In the common law countries com-
pensation for such loss can often be attributed to the state according to the doctrine of
public nuisance.
57 For instance Art. 2(7) Lugano Convention and the definitions of environmental damage in US
environmental statutes, 42 U.S.C. § 9601(16) (CERCLA) or 33 U.S.C. § 2701(20) (OPA).
58 For instance Art. 6:97 Dutch civil code.
59 Belgian and French courts have already awarded in several cases nominal damage or arbitrary
lump sums for the compensation of ecological damage to the owner of the good, the operator of a nature
reserve, public authorities, or environmental organizations that are in charge of the protected good. See
Hinteregger, Environmental Liability and Ecological Damage in European Law, at 632 et seq. Very promi-
nent examples are the rulings of French courts concerning the catastrophic oil spill caused by the tanker
Erika attributing public authorities and environmental associations monetary compensation for envi-
ronmental harm: CA Paris, 30 March 2010, no. 08-02278; Cass.crim., 25 September 2012, no. 10-82938
and Cass.crim., 22 March 2016, no. 13-87650.
In addition to evolving public law concepts for the restoration of natural resource damage,60
more and more countries enact specific private law legislation for the restoration and
compensation of natural resource damage which grant public bodies,61 or environmental
organizations,62 the right to claim restoration, or, if not possible or feasible, even monetary
compensation for environmental loss.63 Brazilian law even allows certain public institutions
and civil associations to claim for the compensation of immaterial damage in case of
significant and irreversible harm to the environment.64 The action covers harm of a diffuse
or collective nature and provides that the obtained compensation amounts are payable
into public funds and shall be used for the restitution of the harmed good.65 But the action
can also be used as a class action device to indemnify private individuals who suffered
environmental loss.
Environmental damage often affects a majority of people and involves complex litigation
raising difficult factual and legal issues. This calls for procedural instruments for the aggre-
gation of claims in order to make litigation more manageable both for courts and litigants.
The most prominent example for such a procedural device is the US class action provided
by Article 23 of the Federal Rules of Civil Procedure.66 In the United States class action suits
play an important role in product liability litigation, but it was also because of the applica-
tion of the class action in prominent mass toxic tort cases67 that this instrument has got
worldwide attention and recognition. Today many countries provide for similar instruments
of class action.68

61 Brazil: Art. 14(1) Law 6938/81; Italy: Art. 311 Environmental Protection Code; Portugal: Art. 48 LBA
Law No. 11/87, as amended by Law No. 13/2002 (framework law on the environment) and Art. 73 DL no.
236/98 (water pollution law).
62 Belgium, Netherlands, Portugal, and Sweden; see Hinteregger, Environmental Liability and Ecological
Damage in European Law, at 632 et seq.
63 See for instance the new comprehensive liability regimes for ecological harm in France (Arts.
1246–1252 code civil) and Mexico (Federal Law for Environmental Liability from 7 June 2013).
64 Article 5 Law No. 7.347/85. 65 Article 13 Law No. 7.347/85.
66 Article 23 FRCP provides that one or more members of a class may sue or may be sued as representative
parties on behalf of all members on the condition that (i) the class is so numerous that joinder of all members
is impractical, (ii) there are questions of law or fact common to the class, (iii) the claims or defences of
the representative parties are typical for the whole class, and (iv) the representative parties will fairly and
adequately protect the interests of the class. For an analysis of the use of class action litigation in mass
toxic torts see, for instance, J. W. Elrod, ‘The Use of Federal Class Actions in Mass Toxic Pollution Torts’
(1988) 56 Tennessee Law Review 243; K. S. Rivlin and J. D. Potts, ‘Proposed Rule Change to Federal Civil
Procedure may Introduce New Challenges in Environmental Class Action Litigation’ (2003) 27 Harvard
Environmental Law Review 519; D. R. Hensler, ‘The Globalisation of Class Actions: An Overview’ (2009)
622 Annals of the American Academy of Political and Social Science 7, at 7 et seq.
67 See In re Agent Orange, 745 F.2d 161 (2d Cir. 1984) (class action lawsuit brought by Vietnam veterans
and their family members against seven chemical companies for injuries allegedly caused by exposure to
Agent Orange and other herbicides); In re Three Mile Island, 87 FRD 433 (MD Pa 1980) (class action lawsuit
following the partial meltdown of the Three Mile Island nuclear power plant in Pennsylvania).
68 For instance: Argentina, Australia, Brazil, Chile, India, or New Zealand. For the development of
devices of collective redress in the EU, see 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. This recommenda-
tion, however, does not cover tort litigation. See also W. Van Boom and G. Wagner (eds.), Mass torts in
Europe, Cases and Reflections (Berlin: De Gruyter, 2014).
45.3.4 Natural Resource Damage

and Administrative Law
In the United States and the EU the societal interest in the prevention and restoration of
natural resource damage is also protected by administrative law which overcomes the two
basic problems of tort law with respect to natural resource damage: the problem of legal
standing and the problem of damage assessment. In the United States, these rules are part
of several federal environmental statutes.69 Their theoretical basis is the traditional Anglo-
American public trust doctrine, according to which all lands, water, and wildlife are held in
trust by the state for the benefit of the public.70 The provisions allow public authorities
(federal government, states, and Indian tribes) who exercise control over the natural
resource to recover damages from responsible parties for injury to, destruction of, or loss
of the resource, including reasonable costs of assessment.71 The assessment of natural
resource damage is concretized by specific regulations,72 which identify the best available
procedures to determine such damages. Damages include the costs of restoring, replacing,
or acquiring the equivalent of the injured resource, the diminished value of the resource
during the time between injury and restoration, and the reasonable assessment costs incurred
by the t rustee. The diminished value of the resource also comprises the lost use value, and the
lost ‘non-use’ value (‘passive use’ or ‘option, existence and bequest’ value) of the injured
resource.73 The claims shall compensate the public for the loss of the resource itself, and any
lost use or enjoyment and the loss of any service that the resource provided. Liability is strict
and imposed jointly and severally amongst multiple tortfeasors. Recovered sums must be
used to restore, replace, or acquire the equivalent of the damaged natural resources.74
The 2004 EU Environmental Liability Directive75 was inspired by these US statutes. It
adopts the American notion of the public trustee by empowering the ‘competent authority’
to prevent and remedy environmental damage and copies the model for damage assessment
set up by CERCLA and especially OPA.76 Contrary to US law, the Directive only covers spe-
cific types of environmental damage (damage to protected species and natural habitats,
water damage, and land damage) which are regulated by EU legislation and limits non-fault
liability to specific dangerous activities listed in Annex III of the Directive. With respect to
69 Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §
9607(1980), s. 107; Clean Water Act (CWA), 33 U.S.C. § 1321, s. 311(f)(4); Oil Pollution Act, 33 U.S.C. §
2702, s. 1002; Marine Protection Research and Sanctuary Act, 16 U.S.C. § 1443; National Park System
Resource Protection Act, 16 U.S.C. § 19 jj. Comparable rules are also provided by the states in statutes
regarding the cleanup of waste sites and oil spills: L. Grayson, C. Picker, S. Siros, and S. Bettison, ‘The
Business Dilemma: 21st Century Natural Resource Damage Liabilities for 20th Century Industrial Progress’
(2001) 31 Environmental Law Review 11356.
70 J. Robinson, ‘The Role of Nonuse Values in Natural Resource Damages: Past, Present, and Future’
(1996) 75 Texas Law Review 193.
71 42 U.S.C. § 9607(a)(4)(C). 72 43 C.F.R Part 11 (CERCLA) and 15 C.F.R. Part 990 (OPA).
73 G. George, ‘Litigation of Claims for Natural Resources’ (2000) SE 98 ALI-ABA, at 410–12;
J. C. Cruden, ‘Natural Resource Damages’ (2000) SE 98 ALI-ABA, at 865–8.
74 42 U.S.C. § 9607(f)(1).
75 Directive 2004/35/EC of 21 April 2004 on environmental liability with regard to the prevention and
remedying of environmental damage [2004] OJ L143/56.
76 Annex II of the Directive 2004/35/EC.
other activities, the Directive only covers damage to protected species and habitats if the
operator has been at fault or has acted negligently. It covers a broad range of activities relating
to dangerous installations, dangerous substances, waste sites, transport of polluting goods,
and genetically modified organisms. But contrary to CERCLA, it does cover historic site
contamination and, contrary to OPA, oil pollution by tankers. Instead, the EU wants to stick
to the international remedies provided by the International Oil Pollution Conventions.77
The Directive is a minimum-directive ensuring only a minimum level of protection. According
to Article 16, Member States are not prevented from maintaining or adopting more strin-
gent provisions. Furthermore, various provisions of the Directive entitle the Member States
to enact specific national solutions with respect to certain issues.
45.3.5 Relationship Between Tort Liability

and Environmental Regulation
Environmental regulation has some important effects on civil liability. In fault-based liability
and sometimes also in neighbourhood law or nuisance, courts use standards defined by
public law, such as emission standards, licence requirements, or rules concerning the behav-
iour of workers, as an indication of what the required civil standard would be in general.
For the individual case, however, courts will usually assess the required standard according
to the individual circumstances of the case, as these can warrant stricter standards than the
general ones required by public law. This means that compliance with public law standards
usually does not exempt tortfeasors from tort liability (no ‘permit defence’). An exception
to this general rule only applies when the harm is caused because of compliance with a
specific order or mandatory regulation issued by the public authority78 because then it is
not the defendant, but the public authority who is primarily responsible for the damage.
Liability then might lie with the public authority itself.
Failure to comply with regulation, however, is a strong indication that the defendant
breached the required standard of care (common law) or acted unlawfully or with fault
(civil law). In many civil law jurisdictions fault liability is tightened according to the theory
of the protective scope of the rule (Schutzzwecklehre). The breach of a statutory duty which
aims to protect a specific group of people from specific harm (Schutzgesetz) affects tort
liability in that it (i) establishes unlawfulness and (ii) allows the award of damages to the
person injured by the breach if he belongs to the group protected by the statute.
Tort law can effectively supplement administrative instruments for the protection of the
environment. Historically, before the enactment of the comprehensive body of public
environmental law that exists today, tort law was the primary legal instrument for the
77 See above under section 45.2.1.

78 See e.g. Art. 7(d) Product Liability Directive and Art. 8(3)(b) Environmental Liability Directive.
prevention of environmental pollution. Despite the evolution of public environmental law

during the last decades, tort law still has some interesting properties which can be employed
to promote environmental protection. Tort law is a traditional, commonly recognized, and
well-established instrument for the compensation of losses. By making the polluter pay for
the damage he causes, tort law ensures that the committed wrong is redressed and the vic-
tim gets economic restitution. It also has significant preventive effects and thus promotes
the polluter-pays principle of environmental law. Tort law induces economic actors to assume
responsibility for what they do. The threat of liability shall make them aware of the risks of
their acts and gives them a strong incentive to minimize the expected damage costs in their
own economic interest. Court decisions, especially those of the highest courts, enjoy high
publicity (in environmental matters often even across national borders) and thus have not
only effects on the future behaviour of the parties of the specific trial, but also on other
potential polluters who are in a comparable situation. Compared to public e nvironmental
law, tort is also very cost-effective for the public households. There is no need for govern-
ments to provide for the comprehensive administrative machinery which is necessary for
the implementation of public environmental instruments, such as e nvironmental licencing
and monitoring. As the focus is put on the private initiative of the persons concerned, the
efficacy of tort law is also independent from the use of coercive public measures and the
willingness of public authorities to enact and enforce e nvironmental legislation. Tort law
can also be employed to enhance the correct enforcement of public environmental law
because clear rules on public authority liability can induce public authorities to carefully
implement public environmental law.
A further advantage of tort law compared to public environmental law is its cross-border
effect. Contrary to public law, which can only be enacted within national borders and by the
authorities of the enacting state, tort law can be applied and enforced by foreign courts. Tort
law can thus cover cross-border pollution, which, however, requires effective rules on choice
of jurisdiction and enforcement of claims. EU law, for instance, already provides rather
victim-friendly rules for victims of transboundary damage with respect to jurisdiction and
enforcement of claims and the applicable law.79
Tort law, however, must meet some requirements in order to become fully effective.
Liability rules that exempt certain types of damage from liability or make it too burdensome
for victims to enforce their claims are not effective because they allow for the externalization
of costs, either to the victims or to society. The short summary of the different environmental
liability systems shows that the rules on recovery of environmental harm are quite hetero-
geneous, and that many countries do not provide for effective rules for the r emediation of
environmental harm. An efficient system of environmental liability would need the follow-
ing elements: First, it must provide some sort of no-fault liability for activities with high
environmental risk. This would ease the victim’s burden of proof because there is no need
to establish fault. As the operator of the activity is comprehensively liable for his employees
and agents the victim need not show vicarious liability either. The second reason, mainly
79 Article 7(2) Brussels Ia Regulation (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) and Arts. 4 and 7 Rome II Regulation (Regulation (EC)
864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-
contractual obligations [2007] OJ L199/40).
argued by the economic theory of law, is that in cases of technological disasters no-fault
liability can achieve a better internalization of the cost of the activity than fault-based l iability,
as the occurrence of damage depends rather on the operator’s than the victim’s activity level.
A further positive effect of no-fault liability is the fact that it gives the defendant less
incentive to cover up mistakes than fault-based liability. This, however, can only be achieved,
if the liability rule does not allow the defendant to escape liability by proof that he could not
have known about the danger of his activity by using the scientific or technical knowledge
available at the time when the damage was caused, the so called ‘state of the art defence’.
The threat of liability will give the operator of a dangerous activity an incentive to invest in
research in order to reduce his potential liability cost.80 Ultra-hazardous activities should be
connected to compulsory insurance coverage. This is a matter of victim protection, as it
guarantees that victims will get compensation in case of an accident, and it also serves the
goal of damage prevention because the transformation of risk into regular premium pay-
ments makes the operator continuously aware of the risk his activity poses and gives the
operator an incentive to invest in the safety of his activity in order to keep insurance
coverage and reduce insurance premiums.
Secondly, an efficient liability system must provide special rules for the integration of
natural resource damage into the tort law system. This includes a broad view on legal standing
and some flexibility on the methods of damage assessment. Those jurisdictions which require
a very high level of probability for the establishment of facts in court will also need some
instruments to lighten the plaintiff ’s burden of proof for causation. This can be done by
lowering the level of probability for the establishment of causation to the level of prepon-
derance of probability according to the model of the common law countries, or by reversing
the burden of proof from the plaintiff to the defendant and by introducing class action
devices into civil procedural law.

Bergkamp, L. and B. Goldsmith (eds.), The EU Environmental Liability Directive, A Commentary
(Oxford: Oxford University Press, 2013).
T. Zuckerman/ Th. Bois/Th. Johnson, Environmental Liability Allocation: Law and Practice (Eagan:
Thomson Reuters, 2018).
Hinteregger, M. (ed.), Environmental Liability and Ecological Damage in European Law (Cambridge:
Goldberg, R. (ed.), Perspectives on Causation (Oxford: Hart Publishing Ltd., 2011).
Madden, S. and G. Boston, Law of Environmental and Toxic Torts, Cases, Materials and Problems
(Eagan: Thomson West, 3rd edn. 2005).
Van Boom, W. and G. Wagner (eds.), Mass Torts in Europe, Cases and Reflections (Berlin: De
Gruyter, 2014).
80 See G. Calabresi, ‘Concerning Cause and the Law of Torts’ (1975) 43 University of Chicago Law
Review 69, at 88; G. Calabresi and A. K. Klevorick, ‘Four Tests for Liability in Torts’ (1985) 14 Journal of
Legal Studies 585, at 616 and 621 et seq.; S. Shavell, ‘Liability and the Incentive to Obtain Information about
Risk’ (1992) 21 Journal of Legal Studies 259; S. Panther, Haftung als Instrument einer präventiven
Umweltpolitik (Frankfurt am Main: Campus-Verlag, 1992), 108 et seq; M. Gimpel-Hinteregger, Grundfragen
der Umwelthaftung—Zugleich ein Beitrag zu den allgemeinen Lehren des Haftungsrechts, zur ökonomischen
Analyse des Rechts und zum privaten Immissionsschutzrecht (Vienna: Verlag Manz, 1994), 80 et seq.
CHAPTER 46
A Ca rtogr a ph y
H um a n R ights
Louis J. Kotzé and Erin Daly
46.1 Overview 1044

46.2 Linking Human Rights and the Environment 1046
46.3 Historical Milestones in the Development of
Environmental Human Rights 1050
46.4 Diverse Manifestations of Environmental
Human Rights 1056
46.4.1 Substantive Right to a Healthy Environment 1056
46.4.2 Rights of Nature 1059
46.4.3 Procedural Environmental Rights 1062
46.4.4 Substantive Political Environmental Rights 1064
46.4.5 Socio-economic Environmental Rights 1065
46.5 Critiquing Environmental Human Rights 1067
46.1 Overview
Scientists believe we are presently living in the Anthropocene epoch; a human-dominated

period in Earth’s geological history that is characterized by steadily deteriorating global
environmental quality as a result of expanding anthropogenic drivers of socio-ecological
a cartography of environmental human rights 1045
change.1 Paradoxically, humans are not only the drivers of this change, they are also its victims,
and as environmental conditions worsen the world over, their adverse impacts on people’s
lives and on people’s ability to enjoy and advance their rights become more pronounced.
Environmental law, among other regulatory institutions, is central to counter the deepen-
ing global socio-ecological crisis,2 and it has turned towards human rights law in seeking
to protect the basic rights, and those conditions necessary for survival, of those who
are threatened by environmental degradation and Earth system changes. Rights-based
approaches to environmental law have thus become more prevalent recently as the domains
of human rights and environment law have merged.3 Among the most prominent spheres of
human rights protection is constitutional law, which enjoys near universal acceptance
within nation-states as the foundation of law and governance, with the most evolved
mechanisms of enforcement available, in the form of constitutional or apex courts.4
Because the myriad values that human rights law seeks to protect are intimately linked
with environmental quality, it is no surprise that environmental human rights have become
a critically important focus of regulatory regimes. 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 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 protected for
both present and future generations; and more recently, rights of nature. These environ-
mental human rights have now become central features of international, regional, and
domestic legal regimes the world over. Although no global human rights or environmental
law instrument explicitly protects the human right to a healthy environment, proposals for
such an instrument are being circulated and considered in various bodies within the United
Nations.5 Already, various regional instruments provide for such a right, and approximately
three quarters of the world’s constitutions entrench some form of rights-based environmental
1 W. Steffen et al., ‘The Anthropocene: Conceptual and Historical Perspectives’ (2011) 369 Philosophical
Transactions of the Royal Society 842; W. Steffen, P. Crutzen, and J. McNeill, ‘The Anthropocene: Are
Humans Now Overwhelming the Great Forces of Nature?’ (2007) 36 Ambio 614.
2 See for a recent account, L. Kotzé (ed.), Environmental Law and Governance for the Anthropocene
3 J. Gellers, The Global Emergence of Constitutional Environmental Rights (Abingdon: Routledge, 2017).
4 L. Kotzé, Global Environmental Constitutionalism in the Anthropocene (Oxford: Hart Publishing,
2016), see particularly chapter 3. More potent than tribunals at the infra- or supra-national levels, consti-
tutional courts have the potential to guarantee basic human interests such as life, dignity, and equality as
well as other, more specific, rights including the right to health, water, and shelter.
5 See e.g. S. Turner, A Global Environmental Right (Abingdon: Routledge, 2014). More recently, David
Boyd urged the United Nations General Assembly to recognize the right of people to live in a healthy
environment. See e.g. ‘UN Urged to Recognize Healthy Climate as a Human Right’, available at: https://
www.climateliabilitynews.org/2018/10/26/un-climate-human-rights-david-boyd. Previously, Boyd’s pre-
decessor, John Knox, had recommended in his final report that the United Nations Human Rights
Council must ‘consider supporting the recognition of the right in a global instrument’. Report of the
Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean,
healthy, and sustainable environment (24 January 2018) (A/HRC/37/59), available at: https://documents-
dds-ny.un.org/doc/UNDOC/GEN/G18/017/42/PDF/G1801742.pdf?OpenElement, para. 14.
1046 louis j. kotzé and erin daly
protection measures.6 The continuation of the mandate of the United Nations Special
Rapporteur on Human Rights and the Environment is arguably further testimony to the
expanding prominence of rights-based approaches to environmental protection7 as is the UN
Environment’s Environmental Rights Initiative, launched in 2018.8
In this chapter, we provide a concise cartography of environmental human rights, with a
view to illustrating and critiquing the current and potential contribution of human rights in
augmenting global environmental protection and justice. We do so, first in section 46.2, by
examining the link between human rights and environmental protection. With reference to
the international, regional, and domestic regulatory domains, the chapter briefly explains
the historical development and rise of environmental human rights in section 46.3. Section
46.4 maps the different manifestations of the rights-based approach (the right to a healthy
environment, rights of nature, procedural environmental rights, political environmental rights,
and socio-economic environmental rights) and highlights specific examples in international,
regional, and domestic law where these forms of the rights-based approach occur. Section
46.5 provides a critique of the potential of the rights-based approach to environmental pro-
tection, including views on how this approach could be augmented where deficiencies are
apparent. Section 46.6 concludes the discussion.
46.2 Linking Human Rights

and the Environment
Any attempt to understand the relationship between human rights and the environment,
including the increased popularity of human rights as environmental protection measures,
must arguably commence with an understanding of what human rights are, what they mean,
and what their significance is in the broader juridical scheme of things. Human rights pos-
tulate the idea that people have certain claims that are universal (belonging to everyone
everywhere); inborn (the fact of being human bestows a right); inalienable and imprescriptible
(human rights cannot be transferred, forfeited, waived, or lost due to their not being
claimed) that may not be infringed upon by anyone, including especially those who wield
political power.9 Historically deriving from early natural law theories, religious and philo-
sophical traditions, national codes of antiquity, early efforts to protect religious liberty and
abolish slave trade, and international humanitarian law,10 the claims of human rights relate
to benefits essential for freedom, well-being, dignity, and human fulfilment. These claims ‘as
6 See for a comprehensive discussion, J. May and E. Daly, Global Environmental Constitutionalism
7 See United Nations Human Rights Office of the High Commissioner, at: http://www.ohchr.org/EN/
Issues/Environment/SREnvironment/Pages/SRenvironmentIndex.aspx; and United Nations Mandate
on Human Rights and the Environment, at: http://srenvironment.org/.
8 https://www.unenvironment.org/explore-topics/environmental-rights-and-governance/what-we-
do/advancing-environmental-rights.
9 F. Venter, Constitutional Comparison: Japan, Germany, Canada and South Africa as Constitutional
States (Cape Town: Juta, 2000), 127.
10 A. Grear, ‘Human Rights and the Environment: A Tale of Ambivalence and Hope’ in D. Fisher (ed.),
Research Handbook on Fundamental Concepts of Environmental Law (Cheltenham: Edward Elgar, 2016),
146–67, at 147.
of right’ epitomize a core impetus of constitutionalism, that is, protection of the individual
from abuse of power and the full realization of being human. To this end, the idea of human
rights implies:
entitlements on the part of the holder in some order under some applicable norm; the idea of
human rights implies entitlement in a moral order under a moral law, to be translated into
and confirmed as legal entitlement in the legal order of a political society. When a society
recognizes that a person has a right, it affirms, legitimizes, and justifies that entitlement, and
incorporates and establishes it in the society’s system of values, giving it important weight in
competition with other societal values.11
Borne by the ideals of equality, humanism, and liberalism and deriving their special status
from the dignity that is inherent in every member of the human family (dignitas humana),
human rights are considered to be the foundation of every society, the source of regime
legitimization and the point of departure of social ordering.12
Human rights have become the central existential justification of a new world order
following the adoption of the United Nations Charter (UNC) in 1945,13 and later through
the Universal Declaration of Human Rights (UDHR) in 1948 (resulting in what Loughlin
refers to as a post-Second World War ‘rights revolution’),14 with the overwhelming majority
of domestic constitutions providing for basic human rights, and with the bulk of constitu-
tional theory and critique dedicated to the issue of human rights. To be sure, as Henkin
famously suggested:
Ours is the age of rights. Human rights is the idea of our time, the only political-moral idea
that has received universal acceptance . . . It is significant that all states and societies have been
prepared to accept human rights as the norm, rendering deviations abnormal, and requiring
governments to conceal and deny, or show cause, lest they stand condemned . . . the suspen-
sion of rights is the touchstone and measure of abnormality.15
Human rights are apex norms that aim to promote, protect, and improve the human condition.
Grounded in human dignity and embodying principles of equality and freedom, human
rights tend to reflect universal non-legal principles that seek to counter differentiation and
hierarchy based on characteristics such as race, gender, class, and sexual orientation and
therefore have normative force independent of their embodiment in positive law. As a result,
11 L. Henkin, The Age of Rights (New York Columbia University Press, 1990), 3.
12 U. di Fabio ‘Verfassungsstaat und Weltrecht’ 2008(39) Rechtstheorie 399–418, at 408. For more on
the enforcement of dignity rights throughout the world, see E. Daly, Dignity Rights: Courts, Constitutions,
and the Worth of the Human Person (Philadelphia: University of Pennsylvania, 2011).
13 Acting as the ‘constitution’ of the United Nations, its Charter establishes this institution to among
others: ‘develop friendly relations among nations based on respect for the principle of equal rights and
self-determination of peoples’; and to ‘achieve international co-operation in solving international prob-
lems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging
respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language,
or religion’, Art. 1.
14 M. Loughlin, ‘What is Constitutionalisation?’ in P. Dobner and M. Loughlin (eds.), The Twilight of
Constitutionalism (Oxford: Oxford University Press, 2010), 62.
15 Henkin, The Age of Rights, at vii–x.
they are generally elevated above positive law where their embodiment in positive law gives
their enforcement a legitimating basis in political consent. Respect for human rights is
therefore a critical necessity for justice and the rule of law, such that government abuse of
power is potentially the single greatest threat to human rights, with human rights acting at
once as some of the most powerful juridical mechanisms to counter political power abuse.16
To this latter end, in the realm of the rule of law, human rights typically work to establish
procedural (often considered civic and political rights) and substantive (often considered
social, economic, and cultural rights) limits on legislative and executive action ‘depending
on the extent to which the action departs from the presumptions of political morality
expressed in the constitutional rights catalogue’.17
While the effectiveness of human rights is still evolving (mainly as a result of their inher-
ent shortcomings and internal and external tensions and dissonances, including political
resistance to their lofty goals as we shall see below),18 it is probably correct to say that human
dignity, democratic governance, and the overall quality of human life would have been
more precarious had it not been for constitutionally entrenched human rights working the
world over. A case in point is South Africa’s post-apartheid constitutional revolution, with
the Constitution of the Republic of South Africa, 1996 entrenching a broad catalogue of
human rights upon which the entire constitutional transformation effort of the country is
based,19 and which continues to shape social justice policies, legislation, and governance in
a constitutional democracy and to strengthen claims by people in South African courts to
improve equality, human dignity, and the quality of their lives.20 To this end, human rights
are meaningfully contributing to the grand project of ‘transformative constitutionalism’,
which entails:
the dismantling of the formal structures of apartheid, the explicit targeting and ultimate
eradication of the (public and private) social structures that cause and reinforce inequality,
the redistribution of social capital along egalitarian lines, an explicit engagement with social
vulnerability in all legislative, executive and judicial action and the empowerment of poor and
otherwise historically marginalised sectors of society through pro-active and context-sensitive
measures that affirm human dignity.21
While its transformative constitutional project is very far from complete, this comprehensive
catalogue of human rights has improved the quality of life and fundamental human dignity
16 K. Boyle, ‘Linking Human Rights and Other Goals’ in J. Morison, K. McEvoy, and G. Anthony
(eds.), Judges, Transition, and Human Rights (Oxford: Oxford University Press, 2007), 407; G. Neuman,
‘Human Rights and Constitutional Rights: Harmony and Dissonance’ (2003) 55 Stanford Law Review
1863–1900, at 1866.
17 J. Rivers, ‘A Theory of Constitutional Rights and the British Constitution: Translator’s Introduction’
in R. Alexy, A Theory of Constitutional Rights (Oxford: Oxford University Press, 2002), xxi.
18 See e.g. P. Burdon, ‘Environmental Human Rights: A Constructive Critique’ in A. Grear and L. Kotzé
(eds.), Research Handbook on Human Rights and the Environment (Cheltenham: Edward Elgar, 2015), 61–78.
19 See chapter 2 of the Constitution.
20 See, among others, I. Currie and J. de Waal, The Bill of Rights Handbook (Cape Town: Juta, 6th
edn. 2013).
21 M. Pieterse ‘What do we Mean when we Talk about Transformative Constitutionalism?’ (2005) 20
South African Public Law 155–66, at 159. See also K. Klare ‘Legal Culture and Transformative Constitu
tionalism’ (1998) 14 South African Journal of Human Rights 146–88.
of many South Africans since the end of the oppressive apartheid era. A significant part of
this transformation agenda also focuses directly or indirectly on environmental concerns.
Over the years, several South African court cases have dealt with environment-related human
rights claims, including, among others: the right to access to water; the right to access to
housing; procedural rights of access to information, access to justice, and administrative
justice; and ‘pure’ environmental claims based on the country’s environmental right.22
Even where human rights have failed to improve the quality of life, the power of its nor-
mative framework is undeniable as people the world over increasingly speak the language
of rights to stake their claims to a better life. Considering this potential power of human
rights, the question arises why and how could human rights be relevant for the environmental
protection agenda.
The first (and admittedly most generalized) explanation can be traced to the past achieve-
ments of rights to advance the human condition and their essential contribution to the rule
of law in every society; incomplete as these may be. The increasing allure of human rights as
higher order juridical means to improve environmental protection is thus arguably a natural
result of their legacy in the larger regulatory scheme of things.
A second explanation for the increasing convergence between human rights and the
environment lies in the fact that ‘the environment’, broadly conceived, affects virtually all
aspects of being human. Although it may seem obvious, the law does not always seem to
appreciate the extent to which a healthy environment conducive to human health and well-
being is necessary for people to live fulfilling and dignified lives in equal measure in relation
to one another. It is therefore considered entirely appropriate to use human rights to protect
the core (pure environmental and associated) conditions of human life.23
A third reason may be more pragmatic. While environmental law has burgeoned at the
international, regional, and national levels since the 1970s, it continues to lack an effective
enforcement mechanism. More than one thousand multi-lateral and bi-lateral environmen-
tal treaties have been signed but few have associated tribunals or judicial authorities to ensure
compliance, and those that do, tend to be under-utilized. One of the most effective is indeed
the Aarhus Convention on Access to Information, Public Participation in Decision-making
and Access to Justice in Environmental Matters of 1998, although even its enforcement tribu-
nal has decided fewer than fifty cases in nearly twenty years.24 It is quite possible that one of
the reasons for its relative success is that the Convention protects procedural environmental
rights—that is, human rights to information, participation in environmental matters, and
access to justice—that are designed to protect civil and political rights that may result in
environmental protection, rather than assuring environmental protection directly. Thus, one
of the most effective environmental treaties is an environmental human rights treaty.
22 L Kotzé and A. du Plessis, ‘Some Brief Observations on Fifteen Years of Environmental Rights
Jurisprudence in South Africa’ (2010) 3(1) Journal of Court Innovation 157–76.
23 See E. Daly and J. May, ‘Bridging Environmental Dignity Rights’ (2016) 7(2) Journal of Human
Rights and the Environment 218–42.
24 The Aarhus Convention is applicable to EU and non-EU states (if the latter countries ratify it) and
its impact could thus be much broader than the EU region. See among the many publications on the
Aarhus Convention E. Hey, ‘The Interaction between Human Rights and the Environment in
the European “Aarhus Space” ’ in Grear and Kotzé (eds.), Research Handbook on Human Rights and the
Environment, at 353–76.
A fourth reason for the convergence between human rights and the environment may be
related to timing: Grear points to ‘the growing sense of human and environmental crisis
underpinning the global realities of the late twentieth and early twenty-first centuries’.25
Currently, we are experiencing a profound socio-ecological crisis that manifests in various
ways, from global climate change and biodiversity loss to forced environment-induced
displacement of people. The severity of this ecological and attendant social justice crisis
(including the ever-deepening North-South Divide),26 is aptly expressed by the increasingly
urgent imagery of the Anthropocene and of critical planetary boundaries that signify
Earth system integrity and a ‘safe operating space for humanity’, which are being crossed.27
The human impact on the Earth system has become so acute that Earth system integrity
is being eroded at an alarming rate, making it all but impossible for the Earth to sustain
human and non-human life in the not too distant future. Considering that human
rights have been and continue to be apex juridical instruments to safeguard the human
condition, and to respond to multiple human crises (particularly those of human suffering
following the World Wars), their role is likely to increase in legal orders the world over to
address human suffering in a steadily deteriorating Earth system. The socio-ecological crisis
explicated by the Anthropocene, after all, raises profound existential questions for humanity,
demanding a normative realignment in the face of planetary shifts. In sum, environmental
human rights have played, and will continue to play, a critical role in broader regulatory efforts
to realign society’s normative response to the Anthropocene’s socio-ecological crisis; as we will
argue below. To be sure, there is a case to be made out in support of the argument that human
rights—imperfect though they are—may be the last best hope for protecting the natural
environment on which human life depends. Given the ample reasons why environmental
and human rights should find each other, we now turn our attention to describing how that
convergence has taken place.
46.3 Historical Milestones in

the Development of Environmental
Human Rights
Modern human rights law has its roots mainly in the post-Second World War legal order,
including in human rights instruments such as the UNC, the UDHR, the International
Covenant on Economic, Social and Cultural Rights of 1966 (ICESCR) and the International
Covenant on Civil and Political Rights, also of 1966 (ICCPR) (the latter three instruments
being popularly referred to as the ‘International Bill of Rights’). Environmental protection,
however, is a more recent legal innovation: it was only in 1972 that the Stockholm Declaration
on the Human Environment formally launched environmental protection on the world stage.
25 Grear ‘Human Rights and the Environment’, at 146–67, 151.

26 C. Gonzales, ‘Global Justice in the Anthropocene’ in Kotzé (ed.), Environmental Law and
Governance for the Anthropocene, at 219–40.
27 J. Rockström et al., ‘Planetary Boundaries: Exploring the Safe Operating Space for Humanity’
(2009) 14(2) Ecology and Society 1–32.
It was also that document which first formally and explicitly confirmed the link between
human rights and the environment. To this end, Principle 1 of the Declaration states:
Man has the fundamental right to freedom, equality and adequate conditions of life, in an
environment of a quality that permits a life of dignity and well-being, and he bears a solemn
responsibility to protect and improve the environment for present and future generations. In
this respect, policies promoting or perpetuating apartheid, racial segregation, discrimination,
colonial and other forms of oppression and foreign domination stand condemned and must
be eliminated.
Of all existing and generally accepted international law instruments, this provision most
closely ‘approximates the human–environment relationship in terms of fundamental rights
while also placing the onus on man to preserve the environment’.28 In explicitly referring to
human rights abuses such as apartheid, racial segregation, discrimination, and colonialism,
this principle clearly links environmental protection with the enjoyment of myriad human
rights in both the civil and political and the socio-economic catalogues.
Following closely on the heels of the Stockholm Declaration, the World Charter for
Nature was adopted with a majority vote (111 votes, with the United States casting the only
dissenting vote) by the UN General Assembly in 1982.29 The Charter is not binding,30 but
the overwhelming endorsement it received from governments all over the world indicates
that it is more than a merely symbolic act; at least at the time it was adopted, it was intended
to confer persuasive authority akin to other instruments of soft law and to have significant
political weight. While the Charter does not provide for any explicit environmental human
rights, it sets out various duties (as corollaries to human rights) on the world’s governments
and its people to exercise an ecocentric duty of care to protect nature for its own worth
and in its own right. Written in mandatory language, the Charter’s obligations include:
‘[N]ature shall be respected and its essential processes shall not be impaired’; ‘[T]he genetic
viability on the earth shall not be compromised’; ‘[E]cosystems and organisms . . . shall be
managed to achieve and maintain optimum sustainable productivity, but not in such a way
as to endanger the integrity of those other ecosystems or species with which they coex-
ist’; and ‘[N]ature shall be secured against degradation caused by warfare or other hostile
activities’.31 This was the first, and remains the only, international ecocentric juridical
instrument that has been created and endorsed, if not fully implemented, by most nations
around the world; as a result, it has been important in encouraging nations to adopt
environmental human rights in regional and domestic instruments. It therefore constitutes an
28 J. Gellers, ‘Greening Constitutions with Environmental Rights: Testing the Isomorphism Thesis’
(2012) 29(4) Review of Policy Research 523–43, at 525.
29 United Nations General Assembly A/RES/37/7 adopted at the 48th Plenary Meeting on 28 October
1982. See L. Kotzé, ‘A Global Environmental Constitution for the Anthropocene?’ (2018) Transnational
30 Wood notes that while resolutions adopted by the General Assembly of the UN have political and
moral force they have no legally binding effect and that ‘a careful reading of the text of the World Charter
for Nature affirms that it was intended to exert political and moral, but not legal, force on member states’.
H. Wood, ‘The United Nations World Charter for Nature: The Developing Nations’ Initiative to Establish
Protections for the Environment’ (1985) 12(4) Ecology Law Quarterly 977–96, at 982.
31 Articles 1–5.
important model for a juridical formulation of what an ecocentric rights-based approach

could look like; an issue which we return to below.32
One of the most galvanizing initiatives at the international level was the 1994 report of
the Special Rapporteur to the UN Sub-Commission on Prevention of Discrimination and
Protection of Minorities, Fatma Zohra Ksentini. In an accompanying document drafted by
an international group of experts on human rights and environmental protection, the Draft
Principles on Human Rights and the Environment33 provided an important foundation for
the future normative development of environmental human rights while elaborating in
some detail on the intimate link between human rights and the environment. Then, in
March 2012, the UN Human Rights Council established a mandate on human rights and the
environment to study the human rights obligations relating to the enjoyment of a safe,
clean, healthy, and sustainable environment, and to promote best practices relating to the
use of human rights in environmental policy-making.34 Professor John Knox was appointed
to a three-year term as the first Independent Expert on human rights obligations relating to
the enjoyment of a safe, clean, healthy, and sustainable environment. His mandate was
extended in March 2015 for another three years when his status was converted to that of
Special Rapporteur on Human Rights and the Environment. In 2018, Professor David Boyd
was appointed the new Special Rapporteur. While the work of these Special Rapporteurs,
including their findings and reports, are non-binding, they do fulfil an important role in
raising awareness around environmental human rights; they bring to the fore often-
neglected issues surrounding environmental human rights in political and scientific debates;
they provide guidance to state and non-state actors in the eventual creation of binding
environmental human rights norms; and, being mandated by the UN, they raise the visibility
of environmental human rights as key ethical, juridical, and regulatory concerns globally.35
More recently in June 2017, the Global Pact for the Environment was presented to the
world by the French think tank, Le Club des Juristes.36 The Pact’s objectives are three-pronged:
32 See further S. Atapattu, ‘The Right to a Healthy Life or the Right to Die Polluted?: The Emergence
of a Human Right to a Healthy Environment under International Law’ (2002) 16(1) Tulane Environmental
Law Journal 65–126.
33 E/CN.4/Sub.2/1994/9, Annex I (1994).
34 United Nations Human Rights Office of the High Commissioner, at: http://www.ohchr.org/EN/
Issues/Environment/SREnvironment/Pages/SRenvironmentIndex.aspx; and United Nations Mandate
on Human Rights and the Environment, at: http://srenvironment.org/.
35 e.g. the mandate of John Knox specifically included: to study the human rights obligations relating
to the enjoyment of a safe, clean, healthy and sustainable environment; to identify, promote, and exchange
views on good practices relating to human rights obligations and commitments to inform, support, and
strengthen environmental policy-making, especially in the area of environmental protection; promote
and report on the realization of human rights obligations relating to the enjoyment of a safe, clean,
healthy, and sustainable environment, and to disseminate findings by, inter alia, continuing to give par-
ticular emphasis to practical solutions with regard to their implementation; and work on identifying
challenges and obstacles to the full realization of human rights obligations relating to the enjoyment of a
safe, clean, healthy, and sustainable environment and protection gaps thereto. See: http://srenvironment.
org/un-mandate/.
36 L. Kotzé and D. French, ‘A Critique of the Global Pact for the Environment: A Stillborn Initiative or
the Foundation for Lex Anthropocenae?’ (2018)8 International Environmental Agreements: Politics, Law
and Economics 811–838.
i) to be a globally binding environmental law instrument; ii) to thus entrench all major
principles of international environmental law in one document; whilst also iii) developing
progressively the law to provide a globally recognized right to live in an ecologically sound
environment, with associated procedural environmental rights. On 18 May 2018 the process
leading up to the negotiation of the final text of the Pact formally commenced, consequent
on a UN General Assembly resolution.37 This sets the stage for states and other stakeholders
to consider the draft text with a view to negotiating and adopting a binding global instru-
ment. Importantly for present purposes, draft Article 1 of the Pact provides, ‘[E]very person
has the right to live in an ecologically sound environment adequate for their health, well-
being, dignity, culture and fulfilment’. Complementing this substantive right to a healthy
environment, draft Articles 9–11 provide for rights-based aspects of environmental democracy
by setting out procedural environment-related human rights including the rights to access
to information, public participation, and access to environmental justice.
The adoption of such a binding multilateral agreement recognizing a global right to a
healthy environment could provide universal standards and raise the level of awareness
of the importance of environmental protection worldwide. While such a normative devel-
opment would have obvious advantages, its absence (so far) has at least managed to
generate a transnational body of environmental human rights law.38 Nestled within the
transnational or global law paradigm, as an ‘emergent system’,39 transnational environ-
mental law (TEL) is an analytical perspective on environmental law and governance that
increasingly demands the attention of scholars. Recognizing that environmental regula-
tion also takes place outside formal treaty regimes, TEL seeks to ‘move beyond the state’
as it were and to provide ‘a theoretical framework for a more multi-actor, multi-level and
normatively plural system of environmental law and governance’.40 Lin suggests that
TEL includes international environmental law as well as all domestic, regional, and inter-
national state and non-state environmental law norms (including human rights provisions)
that apply to transboundary activities or that have effects in more than one jurisdiction.
The process of transnationalization thus also involves the interactive and iterative political
and diplomatic processes through which state and non-state actors engage to create, interpret,
and enforce these laws. These processes present rich opportunities for cross-fertilization of
ideas that can foster the creation of some ‘common’ global legal rules. Within the emerging
body of TEL, then, the global development of environmental human rights is occurring
not in isolated domestic regulatory spaces, but through processes of cross-jurisdictional
learning, comparative a nalysis and legal transplantation—including transnational migra-
tion, cross-pollination, and sharing of ideas. One example is section 73 of the Constitution
37 UNGA, ‘Towards a Global Pact for the Environment’. Resolution adopted by the General Assembly
on 10 May 2018 (A/RES/72/277). Available at: http://www.un.org/en/ga/search/view_doc.asp?symbol=A/
RES/72/277.
38 L. Kotzé and C. Soyapi, ‘Transnational Environmental Law: The Birth of a Contemporary Analytical
Perspective’ in Fisher (ed.), Research Handbook on Fundamental Concepts of Environmental Law, at 82–110.
39 T. Yang and R. Percival, ‘The Emergence of Global Environmental Law’ (2009) 36 Ecology Law
Quarterly 615–64, at 617.
40 J. Lin, ‘The Emergence of Transnational Environmental Law in the Anthropocene’ in Kotzé (ed.),
Environmental Law and Governance for the Anthropocene, at 329–51, 330–1.
of Zimbabwe of 2013, which almost exactly mirrors the environmental right provision of
neighbouring South Africa. The Constitution of the Republic of South Africa, 1996 provides:
Everyone has the right—

(a) to an environment that is not harmful to their health or wellbeing; and
(b) to have the environment protected, for the benefit of present and future generations,
through reasonable legislative and other measures that—
(i) prevent pollution and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and use of natural resources while promoting
justifiable economic and social development.41
It is possible in this, and many other examples, to observe the emergence of transnationality in
the environmental rights domain, a process which both compensates for the absence of a global
environmental rights treaty and possibly also galvanizes its potential for future development.
Environmental human rights law has been particularly active at the level of both regional
and domestic law, as codification of environmental rights has become accepted throughout
the world, and increasingly supported and supplemented by implementation and application
in regional tribunals.42 Boyd has estimated that approximately 130 nations spanning Europe,
Asia, Africa, the Americas, the Caribbean, and the Middle East have ratified regional human
rights agreements, including their environmental rights provisions.43 The right to a healthy
environment, for example, appears in substantially similar formulations in the African Charter
on Human and Peoples’ Rights of 1981;44 the American Convention on Human Rights’ San
Salvador Protocol of 1988;45 and the ASEAN Human Rights Declaration of 2012, the latter
which, under the heading ‘Economic, Social and Cultural Rights’, provides an environmental
right in the guise of a socio-economic right.46 Curiously, the Council of Europe’s European
Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 does
not provide for an explicit environmental right,47 with environmental entitlements instead
being raised and protected through the assertion of other classic human rights.48 The European
41 The only difference is that the Zimbabwean provision affords this right to ‘every person’ while the
South African version speaks to ‘everyone’.
42 See for a general discussion of these regional regimes and the environmental law and rights juris-
prudence of their regional judicial institutions, W. Scholtz and J. Verschuuren (eds.), Regional
Environmental Law: Transregional Comparative Lessons in Pursuit of Sustainable Development
(Cheltenham: Edward Elgar, 2015).
43 D. Boyd, ‘Constitutions, Human Rights, and the Environment: National Approaches’ in Grear and
Kotzé (eds.), Research Handbook on Human Rights and the Environment, at 170–99.
44 Article 24 provides: ‘[A]ll peoples shall have the right to a general satisfactory environment favora-
ble to their development’.
45 Article 11 states: ‘[E]veryone shall have the right to live in a healthy environment and to have access
to basic public services’ and ‘[T]he States Parties shall promote the protection, preservation, and
improvement of the environment’.
46 Article 28 provides: ‘[E]very person has the right to an adequate standard of living for himself or
herself and his or her family including . . . the right to a safe, clean and sustainable environment’.
47 Available at: http://www.coe.int/t/dghl/standardsetting/hrpolicy/Publications/Manual_Env_2012_
nocover_Eng.pdf.
48 O. Pedersen, ‘European Environmental Human Rights and Environmental Rights: A Long Time
Coming?’ (2008) 21 Georgetown International Environmental Law Review 73–111.
Court of Human Rights has, among others, protected environmental interests through the
Convention’s right to privacy and family (Article 8) and other provisions.49 The more recent
Charter of Fundamental Rights of the European Union of 2000 includes under its section on
solidarity rights an environmental provision which states ‘[A] high level of environmental
protection and the improvement of the quality of the environment must be integrated into
the policies of the Union and ensured in accordance with the principle of sustainable
development’.50 This provision, which has become binding on all EU Member States since
2009, along with all the other provisions of the Charter,51 although relatively weak and
devoid of the classic rights language, ‘may become a benchmark for judicial review by the
EU Court of Justice of legislative and executive EU acts as well as national measures imple-
menting EU environmental obligations’.52 These regional environmental rights are important
to the extent that they provide and legitimize a regional environmental governance effort;
they elevate regional environmental governance to a higher and potentially more powerful
level (i.e. a ‘global constitutional’ concern as opposed to providing ‘mere’ non-rights based
and thus inferior measures); and they have the potential to influence and guide domestic
rights-based provisions, associated legal developments, and environmental governance
efforts. In some instances, such as with the African Charter, the regional environmental
right can even be directly adopted by a country where domestic environmental rights pro-
visions are absent from a constitution.53 Examples are the constitutions of Burundi, Madagascar,
and Mauritania, which incorporate by reference all the rights of the African Charter, including
its right to a satisfactory environment.
Even more pronounced than supra-national environmental human rights law, has been the
proliferation of environmental human rights’ in constitutions around the world, primarily in
the form of constitutional provisions addressing environmental concerns. Gellers indicates that
only two years after the Stockholm Conference, Yugoslavia was the first nation to constitu-
tionalize a right to a healthy environment.54 By now, approximately three quarters of the world’s
constitutions contain references to environmental rights and/or responsibilities in some or
other form,55 and half recognize a substantive right to a healthy environment.56 The form of
these provisions is discussed in more detail in the next section, but whatever their particular
manifestation, the global acceptance of constitutional environmental rights represents a
remarkable shift in cross-cultural thinking about the environment in less than fifty years, espe-
cially given that these rights have never formed part of the traditional catalogue of human
rights. As Jeffords and Gellers have shown, ‘environmental rights have become a common, but
49 See for a summary of environment related cases the summary in European Court of Human Rights
at: http://www.echr.coe.int/Documents/FS_Environment_ENG.pdf.
50 Article 37.
51 The Charter has been incorporated as a binding legal text in the Lisbon Treaty of 2007 and as a
result it has become binding on all EU Member States since 2009.
52 J. Verschuuren, ‘Contribution of the Case Law of the European Court of Human Rights to Sustainable
Development in Europe’ in W. Scholtz and J. Verschuuren (eds.), Regional Environmental Law: Transnational
Comparative Lessons in Pursuit of Sustainable Development (Cheltenham: Edward Elgar, 2015), 363–84.
53 Boyd, ‘Constitutions, Human Rights, and the Environment’, at 170–99, 177.
54 J. Gellers, ‘Explaining the Emergence of Constitutional Environmental Rights: A Global Quantitative
Analysis’ (2015) 6(1) Journal of Human Rights and the Environment 75–97.
55 D. Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and
the Environment (Vancouver: UBC Press, 2012), 47.
56 May and Daly, Global Environmental Constitutionalism, at 55–7.
not yet universal, fixture among national constitutions across the world, and their adoption
has been associated with stronger environmental laws and more environmental litigation’.57
Indeed, today most people on Earth live under the protection of constitutional environmental
rights.58 Moreover, as will be seen more fully below, apex domestic tribunals have increasingly
engaged with constitutional language to hold governments (and sometimes private parties)
accountable for environmental lapses that have consequences for the enjoyment of human
rights. Perhaps even more significant are the decisions of constitutional courts that operate
under constitutions that do not explicitly protect environmental rights: apex courts in India,
Bangladesh, Pakistan, Sri Lanka, and Ireland,59 among other countries, have developed
robust precedents establishing environmental rights as incidents of other rights, including
especially the right to life, the right to dignity, and the right to health. Not only are these cases
important for recognizing the interdependence and indivisibility of human and environ-
mental rights, but they also often address critical emerging issues such as loss of biodiversity
and threats of climate change.60
It is evident from the significant normative and legal developments since the 1970s that
human rights have in recent decades become ever more closely intertwined with environ-
mental concerns in the international, regional, and domestic spheres. In an increasingly
interconnected globalized world, it is to be expected that transnational environmental
conversations will grow, thereby contributing to the emergence of a common global, if not
universally similar, rights-based approach to environmental protection. Today, environmental
human rights are entrenched in most legal regimes and are increasingly being recognized in
tribunals and courts around the world. Indeed, they have become so prevalent that their
absence in any legal regime now raises critical questions regarding the reasons for their absence
and demanding explanations as to why environmental rights should not be protected.
46.4 Diverse Manifestations

of Environmental Human Rights
In this section, we unpack the various manifestations of environmental human rights,

including the right to a healthy environment, rights of nature, procedural environmental
rights, political environmental rights, and, finally, socio-economic environmental rights.
46.4.1 Substantive Right to a Healthy Environment

The ‘right to a healthy environment’ is the moniker given to the collection of substantive
environmental rights: other formulations of this right include terms establishing a right
to a specific environmental quality, such as the right to an ‘adequate’, ‘clean’, ‘productive’,
57 C. Jeffords and J. Gellers, ‘Constitutionalizing Environmental Rights: A Practical Guide’ (2017)
Journal of Human Rights Practice 1–10, at 2.
58 May and Daly, Global Environmental Constitutionalism, at 55.
59 Boyd, The Environmental Rights Revolution, at 108. See e.g. Friends of the Irish Environment CLG
v. Fingal County Council, 2017 No.344 JR (High Court of Ireland 2017).
60 Ashgar Leghari v Federation of Pakistan (W.P. No. 25501/2015) Lahore High Court Green Bench.
‘harmonious’, or ‘sustainable’ environment.61 As such, it is the most general, explicit, and

widespread manifestation of an environmental human right. Boyd estimates that as of 2015,
99 national constitutions worldwide recognize the right to a healthy environment (Africa
36, Asia 15, Europe 30, Latin America 16, Caribbean 2), which suggests in turn that ‘environ-
mental rights has grown more rapidly over the past fifty years than any other human rights’
(although nondiscrimination rights are in close competition).62 While Gellers has con-
ducted an extensive study into some of the reasons why countries would adopt a right to a
healthy environment,63 May and Daly argue there are good reasons for substantive rights to
a healthy environment being the most common brand of environmental constitutionalism:
these rights ‘aim to afford the most durable and enforceable means for environmental
protection’64 because they are usually judicially cognizable and self-executing (resting, as
they often do, within the catalogue of fundamental constitutional rights), and they are thus
less susceptible to constitutional amendments and political influence.
Increasingly, constitutional texts elaborate on the substantive right to a healthy environment
by incorporating other environmental values and goals. South Africa’s environmental right
quoted above furnishes an important model. The potential weight and impact that the
South African judiciary attributes to this right is evident from Director: Mineral Development,
Gauteng Region v Save the Vaal Environment,65 where the Supreme Court of Appeal stated:
Our Constitution, by including environmental rights as fundamental, justiciable human

rights, by necessary implication requires that environmental considerations be accorded
appropriate recognition and respect in the administrative processes in our country. Together
with the change in the ideological [political] climate must also come a change in our legal and
administrative approach to environmental concerns.66
While this dictum falls short of setting any explicit minimum standard for environmen-
tal governance, it does provide the impetus to argue for a domestic environmental governance
effort that respects, protects, promotes, and fulfils the objectives of the environmental right;
in other words, an environmentally oriented governance approach which breaks from the past
apartheid ideology and which pursues the social justice oriented goal of sustainability. In this
way, the environmental right (together with all the other rights in the Bill of Rights) becomes
the constitutional standard for environmental governance in South Africa, where any dero-
gation from this standard (either by means of an action, a failure to act, or in the law) could
be deemed unconstitutional and therefore invalid.
In addition to national constitutions, the constitutions of the constituent parts of federal
states (sub-national constitutions) have also become ‘greener’ as it were, particularly in
Brazil, Germany, and to some extent in the United States.67 These sub-national constitutional
provisions can be important because they permit more localized enforcement that can

63 Gellers, ‘Greening Constitutions with Environmental Rights’, at 523–43.
65 1999 2 SA 709 (SCA). 66 Paragraph 20.
67 See e.g. J. May and E. Daly, ‘Standards in Subnational Environmental Constitutionalism’ in S. Turner
(ed.), Standards of Environmental Constitutionalism (Cambridge: Cambridge University Press, forthcom-
ing 2018).
nonetheless have follow-on impacts in other parts of a country, or of the world. One recent
example of an environmental provision coming to life after decades of dormancy comes
from the state of Pennsylvania in the United States, whose state constitutional environmental
right provision is one of the earliest on Earth (actually pre-dating the Stockholm Conference
on the Human Environment of 1972) and remains one of the most comprehensively drafted:
The people have a right to clean air, pure water, and to the preservation of the natural, scenic,
historic and esthetic values of the environment. Pennsylvania's public natural resources
are the common property of all the people, including generations yet to come. As trustee of
these resources, the Commonwealth shall conserve and maintain them for the benefit of all
the people.68
By its clear terms, this constitutional text achieves several important innovations in three
concise sentences. First, it establishes an enforceable personal right to a healthy environment.
Second, it ensures the protection of the environment for its scenic, historic, and aesthetic
values (and not for any economic value it might have). Third, it protects the state’s natural
resources for present and future generations; a consideration that is becoming increasingly
common, as also seen in South Africa’s environmental right provision above. This poten-
tially ensures sustainability and a much longer-term vision of environmental governance.
Fourth, it vests the ownership of the state’s national resources in the people, rather than
in the state or the government, which has the potential to significantly strengthen public
trust-based and civil society environmental protection initiatives. Fifth, and related to the
last point, it defines the state’s role in environmental protection as that of a trustee, holding
the property in trust for the people, and further defines the state’s obligation in managing the
trust as one of conservation and maintenance of the corpus of the trust. And last, it reaf-
firms that the beneficiaries of the trust are ‘all the people’, including presumably generations
yet to come. Each one of these elements can be seen in many modern constitutions through-
out the world.
After four decades of desuetude, the Pennsylvania constitutional provision has finally
been taken seriously by the Supreme Court of the state in two major recent decisions. The
Court has firmly held that these environmental rights are ‘inherent and indefeasible’69 and
‘on par’ with other enumerated constitutional rights.70 It has also found that they are self-
executing,71 and impose obligations to respect and conserve the natural environment on all
levels of the Commonwealth government.72
68 Article I, § 27 Pennsylvania Constitution.

69 Pennsylvania Environmental Defense Fund v Commonwealth, at 29.
70 Robinson Township v Commonwealth, 83 A.3d 901 (Pa. 2013), at 78: ‘The right delineated in the first
clause of Section 27 presumptively is on par with, and enforceable to the same extent as, any other right
reserved to the people in Article I’.
71 Pennsylvania Environmental Defense Fund v Commonwealth, at 38–40.
72 Robinson Township v Commonwealth, 83 A.3d 901 (Pa. 2013), at 75. See also at 95: (‘public trustee
duties were delegated concomitantly to all branches and levels of government in recognition that the
quality of the environment is a task with both local and statewide implications, and to ensure that all
government neither infringed upon the people’s rights nor failed to act for the benefit of the people in
this area crucial to the well-being of all Pennsylvanians’).
In sum, considering all the foregoing, we share Boyd’s optimism when he states:
From Argentina to Zambia, something extraordinary is happening. In communities, legislatures

and courtrooms around the world, a new human right is blossoming from seeds planted
decades ago. The constitutional right to live in a healthy environment represents a tangible
embodiment of hope, an aspiration that the destructive, polluting ways of the past can be
replaced by cleaner, greener societies in the future. While no nation has yet achieved the holy
grail of ecological sustainability, the evidence indicates that constitutional protection of
environmental rights and responsibilities can be a powerful and potentially transformative
step towards that elusive goal.73
While they have several shortcomings (as we shall see below) and while considerably more
needs to be done to implement the rights-based approach to environmental protection, the
worldwide adoption of rights to a healthy environment remains a laudable beacon of hope
for a more sustainable future amidst the often-depressing fatalism and visions of doom of
the Anthropocene.
46.4.2 Rights of Nature

Throughout the course of all the foregoing normative developments, and despite sustained
critique, environmental human rights have remained resolutely anthropocentric.74 Anthro
pocentrism describes the centrality and privileged position of humanity vis-à-vis the rest of
the world, and it ‘has fundamentally informed not only the way modern law constructs,
categorizes and orders nature, but also the manner in which law protects nature’;75 primarily
for the benefit of people and not for the sake of nature itself. Thus, anthropocentric law and
its embedded juridical constructs of human rights, based as they mostly are on the notions
of instrumentalist rationality and the property-owning human being, have become tools
that legally create human entitlements to the environment, that justify and legitimize these
entitlements, and that strengthen them through laying (in most instances constitutional)
claims to the environment and its benefits to human development as of right. Indeed, in the
context of anthropocentric environmental human rights, ‘[t]he image of nature that
emerges . . . is that of a lifeless, inert machine that exists to satisfy the needs, desires (and
greed) of human beings’.76 It is precisely the anthropocentrism of environmental human
rights that most often forms the core focus of sustained criticism levelled against them.
After all, what use is environmental human rights in our efforts to create sustainable futures
if they allow, legitimize, and reinforce the type of unrestricted anthropocentric behaviour
that is pushing Earth into the Anthropocene?77
74 L. Kotzé, ‘Human Rights and the Environment in the Anthropocene’ 2014 1(3) Anthropocene Review
252–75.
75 V. de Lucia, ‘Competing Narratives and Complex Genealogies: The Ecosystem Approach in
International Environmental Law’ (2015) 27 Journal of Environmental Law 91–117, at 95.
76 P. Burdon, ‘The Earth Community and Ecological Jurisprudence’ (2013) 3(5) Oñati Socio-Legal
Series 815–37, at 818.
77 L. Kotzé, ‘Rethinking Global Environmental Law and Governance in the Anthropocene’ (2014) 32
Journal of Energy and Natural Resources Law 121–56.
As a response to the actual and potential negative impacts occasioned by anthropocentric

environmental rights, and in tandem with a growing (if still a minority) narrative driven
by several visionaries,78 the movement to recognize the rights of nature is burgeoning sim-
ultaneously in different parts of the world.79 The first galvanizing step was the adoption of a
section in the Ecuadorian Constitution of 2008 dedicated to the protection of the rights of
nature.80 Signalling the transition from a juridical anthropocentric orientation to an ecocentric
one, it remains the only constitution in the world to recognize enforceable rights of nature
(which it sees as Pachamama or the Incan mother-goddess).81 Rühs and Jones believe
‘[f]inding nature’s rights acknowledged legally is quite different from claiming such rights
on the basis of ethical considerations’.82 To this end, the Constitution of Ecuador provides
an example of how an ethical acknowledgement of nature’s rights could manifest concretely
in the juridical sphere. Following this model, a growing number of jurisdictions have fol-
lowed suit legislatively or judicially.83 Bolivia’s statutory Law of the Rights of Mother Earth
of 2010 and the Framework Law of Mother Earth and Integral Development for Living Well
of 2012 is one prominent example.84 Outside Latin America, several cities in the United
States have recognized the right of nature;85 New Zealand’s 2014 deed of settlement granted
legal personhood to its Whanganui River;86 and that same country’s recent Te Urewera Act
51 of 2014 aims to ‘establish and preserve in perpetuity a legal identity and protected status
for Te Urewera [an area on the North Island of New Zealand] for its intrinsic worth, its dis-
tinctive natural and cultural values, the integrity of those values, and for its national
importance’.87 Following a ground-breaking decision affirming the rights of nature from the
Ecuadorian Supreme Court in 2015, courts in Colombia and India recognized the rights to
78 e.g. C. Stone, ‘Should Trees have Standing? Towards Legal Rights for Natural Objects’ 1972(45)
California Law Review 450–501; K. Bosselmann, Ökologische Grundrechte: Zum Verhältnis zwischen indi-
vidueller Freiheit und Natur (Baden-Baden: Nomos Verlagsgesellschaft, 1998); de Lucia ‘Competing
Narratives and Complex Genealogies’, at 91–117; and A. Philippopoulos-Mihalopoulos, ‘Actors or
Spectators? Vulnerability and Critical Environmental Law’ 2013 3(5) Oñati Socio-Legal Series 854–76.
79 See generally E. Daly, ‘Environmentalism Constitutionalism in Defense of Nature’ (2019) 54 Wake
Forest Law Review 101.
80 Constitution of the Republic of Ecuador, Official Registry No. 449, 20 October 2008.
81 L. Kotzé and P. Villavicencio Calzadilla, ‘Somewhere between Rhetoric and Reality: Environmental
Constitutionalism and the Rights of Nature in Ecuador’ (2017) 6(3) Transnational Environmental Law
401–33.
82 N. Rhüs and A. Jones, ‘The Implementation of Earth Jurisprudence through Substantive
Constitutional Rights of Nature’ (2016) 8(174) Sustainability 1–19, at 2.
83 Indigenous people in Canada e.g. have provided for the rights of nature in their indigenous legal
systems for many years. For a comprehensive discussion see J. Borrows, Canada’s Indigenous Constitution
(Toronto: University of Toronto Press, 2010).
84 P. Villavicencio Calzadilla and L. Kotzé, ‘Living in Harmony with Nature? A Critical Appraisal of
the Rights of Mother Earth in Bolivia’ (2018) 7(3) Transnational Environmental Law 397–424.
85 M. Margil ‘Building an International Movement for Rights of Nature’ in M. Maloney and P. Burdon
(eds.), Wild Law-in Practice (Abingdon: Routledge, 2014), 149–60, at 153–6.
86 See Whanganui River Deed of Settlement 5 August 2014, available at: https://www.govt.nz/treaty-
settlement-documents/whanganui-iwi/; and for a discussion see C. Iorns Magallanes, ‘Reflecting on
Cosmology and Environmental Protection: Maori Cultural Rights in Aotearoa New Zealand’ in Grear
and Kotzé (eds.), Research Handbook on Human Rights and the Environment, at 274–308.
87 Article 4.
juridical personhood of rivers in 2016 and 2017, respectively, even though neither con-
stitution protects nature per se or provides for the rights of nature.88
In the Colombian case, the Court held that the Atrato River is the subject of rights to
protection, conservation, maintenance (or sustainable development), and in the appropriate
case, to restoration.89 The Court called for a fundamental rethinking of the relationship
between human beings and nature in order not only to protect present and future generations,
but also the human species itself.90 Explicitly rejecting the anthropocentric view described
above, the Court insisted on the necessity of recognizing the interdependence that connects
all living beings on Earth. Only from an attitude of profound respect and humility for
nature, its integral parts, and its culture, the Court said, is it possible to enter into a relation-
ship with nature on terms that are just and equitable, leaving to the side all concepts that
limit nature only to its economic or efficient uses.91 Rather, the Court continued, we are
integral parts of the global ecosystem (the biosphere) and not normative categories of
dominion and exploitation. Given this shift in perspective, the Court held that nature and
the natural environment constitute a cross-cutting element that runs throughout Colombian
constitutional law.
Then, in 2017, the Indian High Court of Uttarakhand issued two judgments recognizing
the juridical rights of rivers. In the first, the Court held that the Rivers Ganga and Yamuna
are juristic persons:92 since courts have the power to recognize the juridical personalities of
artificial persons (such as corporations, institutions, and deities) in order to serve the ‘needs
and faith of society’, it was appropriate to use this power to protect the rivers:
All the Hindus have deep Astha [faith] in rivers Ganga and Yamuna and they collectively
connect with these rivers. Rivers Ganga and Yamuna are central to the existence of half of
[the] Indian population and their health and well being. The rivers have provided both phys-
ical and spiritual sustenance to all of us from time immemorial. Rivers Ganga and Yamuna
have spiritual and physical sustenance. They support and assist both the life and natural
resources and health and well-being of the entire community. Rivers Ganga and Yamuna are
breathing, living and sustaining the communities from [the] mountains to [the] sea.’93
The second case concerned the dramatic receding of glaciers due to pollution and climate
change from which the rivers Ganga and Yamuna originate. Quoting in full the Stockholm
Declaration, the World Charter for Nature, the 27 Principles of the Rio Declaration on
Environment and Development of 1992, the Convention on International Trade on
Endangered Species of 1973, and the Bali Climate Action Plan adopted at COP 13 in 2007,
and referring at length to social ecological movements, including eco-feminism and the
88 T-622 de 2016 Referencia: Expediente T-5.016.242; Salim v State of Uttarakhand & Others, Writ
Petition (PIL) No. 126 of 2014 (High Court of Uttarakhand at Nainital, 20 March 2017); 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).
89 T-622 de 2016 Referencia: Expediente T-5.016.242 (10 November 2016), see esp. discussion at 134–40.
90 Ibid., at 136. 91 Ibid.
92 The first of these decisions has since been overruled by a five-judge bench of the Indian Supreme
Court. See India’s Ganges and Yamuna Rivers are ‘Not Living Entities’, BBC News (7 July 2017), available
at: https://www.bbc.com/news/world-asia-india-40537701.
93 Salim v State of Uttarakhand & Others, 20 March 2017, at para. 17.
peasant movement (particularly as they relate to environmental protection), the Court held
that ‘[T]rees and wild animals have natural fundamental rights to survive in their natural own
habitat and healthy environment’.94 It further held that ‘[T]he Courts are duty bound to
protect the environmental ecology under the “New Environment Justice Jurisprudence”
and also under the principles of parens patriae’.95 Moreover, the Court held that ‘[B]esides
our constitutional and legal duties, it is our moral duty to protect the environment and
ecology’;96 which led to the conclusions that ‘[R]ivers and Lakes have [the] intrinsic right
not to be polluted’ and that ‘[R]ivers, Forests, Lakes, Water Bodies, Air, Glaciers and
Springs have a right to exist, persist, maintain, sustain and regenerate their own vital ecology
system. The rivers are not just water bodies. These are scientifically and biologically
living.’ Thus, the Court held that ‘[T]he integrity of the rivers is required to be maintained
from Glaciers to Ocean.’97 In the result, even in the absence of a constitutional environ-
mental right vested in people or in nature itself, the Court held that ‘the Himalayan
Mountain Ranges, Glaciers, rivers, streams, rivulets, lakes, jungles, air, forests, meadows,
dales, wetlands, grasslands and springs are required to be declared as the legal entity/legal
person/juristic person/juridicial person/moral person/artificial person for their survival,
safety, sustenance and resurgence’.98
On paper at least, such ground-breaking normative innovations signal an important
historical and potentially transcendent step towards recognizing the inherent ecological
integrity and value of nature as a subject of law and a bearer of rights, instead of nature’s
simply being relegated to being an object of protection for the instrumentalist benefit of
humans, who are in the main (still) the only legitimate subjects of law, bearers of rights, and
recipients of law’s objectifying regulatory protection and benefits.99
46.4.3 Procedural Environmental Rights

Procedural environmental rights encapsulate the opportunities and abilities of individuals to
participate in the policy- and law-making and broader governance processes on issues per-
taining to the environment, including matters related to enforcement and dispute resolution.100
Procedural rights are important normative means to ‘operationalize’ substantive rights claims,
and to achieve their results in practice, as it were. The right to access to environmental infor-
mation; the right to public participation in environmental decision-making (including the
94 Ibid., at 41.

95 Ibid., at 42, quoting United States Supreme Court precedents extensively on the doctrine of parens
patriae (ibid. at 42–8), referring to US scholarship for the application of that doctrine to environmental
protection (at 49–59), and noting that ‘By the turn of the twentieth century, states were suing other states
using their parens patriae powers to protect natural resources and territory’).
99 Ecuador’s constitutional innovation has even recently been recognized by the United Nations
General Assembly in a Draft Resolution. See United Nations General Assembly ‘Sustainable Development:
Harmony with Nature’ A/70/472/Add.7 of 14 December 2015. Although the General Assembly did not
itself endorse the rights of nature, it did recognize ‘that planet Earth and its ecosystems are our home and
that “Mother Earth” is a common expression in a number of countries and regions, [and] some countries
recognize the rights of nature in the context of the promotion of sustainable development’.
100 Gellers, ‘Greening Constitutions with Environmental Rights, at 523–43, 524.
right to administrative justice); and the right to access to justice to have environment-related
disputes settled all form the core of this specific category of environmental human rights.
Procedural environmental human rights have gained significant prominence internationally
since they emerged in Principle 10 of the Rio Declaration, which states:
At the national level, each individual shall have appropriate access to information concerning
the environment that is held by public authorities, including information on hazardous
materials and activities in their communities, and the opportunity to participate in decision-
making processes. States shall facilitate and encourage public awareness and participation by
making information widely available. Effective access to judicial and administrative proceedings,
including redress and remedy, shall be provided.101
A few years later in 1998, the United Nations Economic Commission for Europe (UNECE)
adopted the Aarhus Convention, which has become enormously influential within and
beyond Europe. As its name suggests, this Convention provides in considerable detail for
three procedural environmental rights including the right to access to information, public
participation, and access to justice in environmental matters. In doing so, the Convention
significantly strengthens the force of substantive regional and domestic environmental
constitutionalism by allowing communications to be brought before its Compliance
Committee by one or more members of the public concerning any Party’s compliance with
the Convention.102 The Committee is accordingly entirely in a position to enforce higher-order
rights-based provisions aimed at environmental protection, albeit only insofar as procedural
issues are concerned. A similar treaty—the Escazú Agreement on Access to Information,
Participation and Justice in Environmental Matters in Latin America and the Caribbean
(Escazú Agreement)—opened for signature in September 2018 for Latin America and the
Caribbean.103
Procedural environmental rights can also be found in approximately three dozen
constitutions in addition to those provisions that provide for procedural rights generally.
The Constitution of the Republic of South Africa, 1996, for example, provides ‘[E]veryone has
the right of access to any information held by the State and any information that is held by
another person and that is required for the exercise or protection of any rights’.104 Extending
its scope beyond the trilogy of procedural rights of the Aarhus Convention and Escazú
Agreement, this Constitution then proceeds to provide for the protection and involvement
of people in (environmental) governance to the extent that ‘[E]everyone has the right to
administrative action that is lawful, reasonable and procedurally fair’, and ‘[E]veryone
101 Rio Declaration, Principle 10.

102 United Nations Economic Commission for Europe (UNECE), at: http://www.unece.org/env/pp/
pubcom.html.
103 Adopted under the auspices of the UN Economic Commission for Latin America and the
Caribbean (ECLAC) at Escazú/Costa Rica on 4 March 2018, and opened for signature at the UN
Secretariat in New York on 27 September 2018. The Escazú Agreement is far from being a direct copy of
the Aarhus Agreement, and there are some important additions including the principles of non-regression
and of progressive realization (Art. 3) and an obligation to protect human rights defenders in environmental
matters (Art. 9).
104 Constitution of the Republic of South Africa, s. 32.
whose rights have been adversely affected by administrative action has the right to be given
written reasons’.105 Finally, section 34 provides everyone with an exceptionally broad locus
standi to have (environmental) disputes settled: ‘[E]everyone has the right to have any dis-
pute that can be resolved by the application of law decided in a fair public hearing before a
court or, where appropriate, another independent and impartial tribunal or forum’. Section
38 bolsters this provision by providing:
Anyone listed in this section has the right to approach a competent court, alleging that a right
in the Bill of Rights has been infringed or threatened . . . The persons who may approach a
court are—anyone acting in their own interests; anyone acting on behalf of another person
who cannot act in their own name; anyone acting as a member of, or in the interest of, a
group or class of persons; anyone acting in the public interest; and an association acting in the
interest of its members.
The South African legislature has enacted two statutes to flesh out the rights to access to infor-
mation and administrative justice (the Promotion of Access to Information Act 2 of 2000 and
the Promotion of Administrative Justice Act 3 of 2000). Interestingly, the majority of environ-
mental litigation in South African courts has to date focused on procedural disputes arising
from these laws and the procedural constitutional rights which they aim to give effect to, with
far less attention being paid to the substantive right to a healthy environment.106
The steady growth of procedural rights to accompany and further support substantive
environmental rights is encouraging as they have the potential to raise awareness, provide
opportunities to participate, foster empowerment, strengthen local communities and local
environmental governance efforts, facilitate government accountability, increase public
acceptance of environment-related decisions, and legitimize state-led environmental
governance efforts through transparent and inclusive processes.107
46.4.4 Substantive Political Environmental Rights

Because environmental quality affects every aspect of the human experience, rights that
advance other interests may also be asserted in the service of environmental protection,
including both rights from the civil and political catalogue. Political environmental rights—
sometimes referred to as first generation rights because they first appeared in the classic
constitutions of the eighteenth century where they were expressed as negative liberties
because they often require the state to take no action other than non-interference—use the
tools of classical liberal legal thought to advance ‘new’ environmental concerns. These may
include the rights to life, human dignity, equality, and non-discrimination which can all be
negatively impacted where the environment is degraded. For instance, in a relatively early
105 Ibid., s. 33.

106 L. Kotzé and A. du Plessis, ‘Some Brief Observations on Fifteen Years of Environmental Rights
Jurisprudence in South Africa’ (2010) 3(1) Journal of Court Innovation 157–76; M. Toxopeüs and L. Kotzé,
‘Promoting Environmental Justice through Civil-Based Instruments in South Africa’ (2017) 13(1) Law,
Environment and Development Journal 49–72.
environmental rights case, the Supreme Court of Pakistan has said: ‘[T]he Constitution
guarantees dignity of man and also [the] right to life . . . and if both are read together, [the]
question will arise whether a person can be said to have dignity of man if his right to life is
below bare necessity like without proper food, clothing, shelter, education, health care, clean
atmosphere and unpolluted environment’.108 Substantive political claims can sometimes be
easier to bring to court because they assume the form of litigation already familiar to judges and
lawyers, even though their aims are to advance environmental protection.109
Examples are usually found in the myriad rights that the environmental justice move-
ment has advanced. Environmental justice encapsulates a broader social movement seeking
an equal distribution of environmental benefits and burdens among all members of a society
irrespective of race, gender, sexual orientation, and/or levels of income. Environmental
injustice can exist everywhere: in homes, in workplaces, and communal spaces.110 It reflects
a double standard of ‘what is acceptable in some communities, villages or cities and not in
others’,111 especially in relation to environment-related impacts on quality of life. This
double standard is tied to patterns of inequality evident from the incidence of environmen-
tal harms linked to racialized and class impacts on ownership and geographies and patterns
of residence and employment.112 By invoking rights to life, equality, and human dignity,
among others, both claimants and courts are in a considerably more favourable position to
address rights-based concerns arising from inequalities and discrimination in the environ-
mental context.
46.4.5 Socio-economic Environmental Rights

Socio-economic environmental rights embrace claims to those minimum material condi-
tions necessary for human health and well-being such as water, sanitation, food, shelter, and
education. The genesis of socio-economic rights can be found in the 1966 ICESCR, although
today they are also incorporated into numerous constitutions across the world which provide
for, among others, the right to access to water, the right to access to housing, the right to food,
108 Shelhla Zia v WAPDA (Pakistan, 12 February 1994).

109 For other examples, see generally May and Daly, Global Environmental Constitutionalism. For
instance, the Indian Supreme Court has explained that ‘[T]he right to live is a fundamental right under
Art. 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 Art. 32 of the Constitution for removing the pollution of water or air which
may be detrimental to the quality of life’. Subhash Kumar v State of Bihar and Others. Writ. Pet. No.
381/1988 D/-9-1-91 (K.N. Singh, N.D. Ojha JJ, 9 January 1991). Another example comes from Botswana
where an indigenous group challenged a lack of access to water as an ‘inhuman or degrading punishment
or treatment’. Mosetlhanyane and Others v Attorney General of Botswana. Civil Appeal No. CACLB-074-
10 (Court of Appeal in Lobatse, 27 January 2011).
110 M. Fisher, ‘Environmental Racism Claims Brought Under Title VI of the Civil Rights Act’ (1995)
25 Environmental Law, 285–334, at 297; E. Daly, ‘New Hurdles for Environmental Justice Plaintiffs’
(Summer 2002) 17(1) Natural Resources & Environment 18–20, 62–3.
111 D. Robinson, ‘Environmental Racism: Old Wine in a New Bottle’, available at: http://www.wcc-coe.
org/wcc/what/jpc/echoes/echoes-17-02.html.
112 L. Pulido, ‘Rethinking Environmental Racism: White Privilege and Urban Development in
Southern California’ (2000) 90(1) Annals of the Association of American Geographers 12–40, at 13.
and the right to sanitation. May and Daly, for example, estimate that ‘about 30 constitutions
provide for rights to water as a human or environmental right, including at least one dozen
countries that instantiate a human right to a fair distribution of clean, safe or potable
water’.113 These socio-economic environment-related rights are often located, described,
and legitimized from within the environmental justice paradigm described above.
While there are many other examples, we again use the transition in South Africa from
its apartheid past to a constitutional democracy as an illustrative example. The impacts of
the apartheid regime on the lived realities of people have been immense and they continue
until this day. Apartheid disowned the majority of the population of land and restricted
their access to material conditions of human welfare such as water, housing, and sanitation.
As a fundamentally unjust dispensation, it was essentially aimed at disproportionately
benefitting one part of the population, while disproportionately disenfranchising another.
The concerns that the foregoing leads to are usually grouped under the banner of substantive
(as opposed to formal) social justice, and are typically the object of ‘livelihood rights or
redistributive rights—rights to the conditions or resources required for material survival
and well-being’114 (also called socio-economic rights). The extent of the social injustice that
has been occasioned by apartheid, especially in the context of water and housing, is evident
from post-apartheid socio-economic rights constitutional jurisprudence. One of the
Constitutional Court’s most important cases about social justice involved the right to access
to housing—a claim closely associated with environmental justice for several reasons:
because of the relationship between shelter and protection from environmental hazards,
because of the use of environmental resources (including water and electricity) associated
with appropriate housing, and because of the relationship between substandard housing for
the nation’s disenfranchised population and the allocation of uses and land and environ-
mental resources both under apartheid and into the present. In Government of the Republic
of South Africa and Others v Grootboom and Others,115 the Constitutional Court declared at
the outset of its judgment that:
The cause of the acute housing shortage lies in apartheid . . . Colonial dispossession and a
rigidly enforced racial distribution of land in the rural areas had dislocated the rural economy
and rendered sustainable and independent African farming increasingly precarious.116

114 D. Brand, ‘The South African Constitutional Court and Livelihood Rights’ in O. Vilhena, U. Baxi,
and F. Viljoen (eds.), Transformative constitutionalism: Comparing the Apex Courts of Brazil, India and
South Africa (Pretoria: Pretoria University Law Press, 2013), 414–41, at 415.
115 (CCT11/00) [2000] ZACC 19.
116 Ibid., at para. 6. It went further to state: ‘The right of access to adequate housing is entrenched
because we value human beings and want to ensure that they are afforded their basic human needs. A
society must seek to ensure that the basic necessities of life are provided to all if it is to be a society based
on human dignity, freedom and equality.’ At paras. 43–4, the Court then elaborated on the deplorable
living conditions of the majority of people in South Africa, noting that ‘all lived in shacks. They had no water,
sewage or refuse removal services and only 5% of the shacks had electricity.’ At para. 7, importantly, it
added that the right to access to housing cannot be considered in isolation and that it is intimately linked
with all other rights: ‘[T]here can be no doubt that human dignity, freedom and equality, the foundational
values of our society, are denied those who have no food, clothing or shelter. Affording socio-economic
rights to all people therefore enables them to enjoy the other rights enshrined in [the Bill of Rights].’ The
latter is an implicit acknowledgement that ‘basic necessities of live’ are intertwined with environmental
In the context of the right to access to water, the Constitutional Court in Mazibuko and
Others v City of Johannesburg and Others,117 acknowledged some of the harsh injustices at
the intersection of human and environmental rights:118
Although rain falls everywhere, access to water has long been grossly unequal. This inequality
is evident in South Africa. While piped water is plentifully available to mines, industries, some
large farms and wealthy families, millions of people, especially women, spend hours labori-
ously collecting their daily supply of water from streams, pools and distant taps. In 1994, it was
estimated that 12 million people (approximately a quarter of the population), did not have
adequate access to water. By the end of 2006, this number had shrunk to 8 million, with 3,3
million of that number having no access to a basic water supply at all. Yet, despite the signifi-
cant improvement in the first fifteen years of democratic government, deep inequality remains
and for many the task of obtaining sufficient water for their families remains a tiring daily
burden. The achievement of equality, one of the founding values of our Constitution, will not
be accomplished while water is abundantly available to the wealthy, but not to the poor.119
In addition to illustrating the clear links between socio-economic rights and the right to
a healthy environment, these statements also suggest that the nexus between these two
categories of rights are firmly embedded in the environmental justice paradigm.
46.5 Critiquing Environmental

Human Rights
For present purposes, we focus on three overarching criticisms of environmental rights:

(1) the anthropocentric argument that submerging environmental interests into a human
rights paradigm reduces environmental endowments merely to what is useful for human-
kind, which is neither morally just nor sustainable; (2) the neoliberal attack on rights-based
reasoning, and the concomitant pragmatic criticism that rights-based approaches have
been ineffective in securing human rights; and (3) the criticism from the human rights side
that attempting to include environmental rights within the list of protected rights dilutes an
already over-stressed system and draws energy from enforcement of more important or
more core human rights. We deal with each of these briefly below.
As we have already stated above, the dominant anthropocentric approach to environmental
protection places the human at the centre of environmental governance and advocates for
environmental protection for the sake of humanity, with little or no regard for protection of
nature in its own right. Anthropocentrism and the fact that human rights are often used to
strengthen anthropocentric claims to the environment, has been criticized by various
conditions, including shelter from environmental impacts, and that the full enjoyment of socio-economic
rights depends on the right to a healthy environment and vice versa.
117 (CCT 39/09) [2009] ZACC 28.
118 Constitution of the Republic of South Africa, 1996, s. 27.
119 (CCT 39/09) [2009] ZACC 28, at para. 2.
scholars,120 who argue that the anthropocentrism of environmental law more generally and
human rights specifically is considered to justify and promote ecological ravaging; aggravate
the enclosure of the commons; justify and increase the dispossession of indigenous peoples;
perpetuate corporate neoliberalism and neocolonialism; and intensify asymmetrically dis-
tributed patterns of advantage and disadvantage that prevail in society, while deepening
inter- and intra-species hierarchies.121 Directly opposed to anthropocentrism is the ecocentric
ethic, which claims the crucial need to protect nature for nature’s sake, where the exclusive
satisfaction of human needs is only a peripheral concern. Despite the steady emergence of
ecocentric rights paradigms that aim to bestow rights on non-human subjects (as noted
above),122 much of the convergence of human and environmental rights assumes the primacy
and centrality of the human experience in the protection of nature.
A second response to environmental human rights is related but broader: some scholars
have argued against the entire construct of rights-based approaches to advance social justice,
as both ineffective in practice and ill-conceived in theory.123 This criticism would apply
whether the rights in question are of humans, of nature, or of humans to nature. Rights-
based approaches inherently assume an adversarial form, in which the rights of one side are
pitted against the rights of the other, and invariably, the rights of the disempowered, the
marginalized, the poor, and the vulnerable lose out to the claims of the more powerful inter-
ests in society—those interests that judges and legislators tend to identify with and benefit
from. These are all concerns that have been embraced by the broader environmental justice
movement which highlights struggles against the unequal distribution of environmental
burdens which disproportionately affect poor and non-white communities throughout the
world, and which came about immediately after the human rights wave that was occasioned
by the International Bill of Rights, and that swept the world. To be more exact, the rise of
environmental human rights is intimately intertwined with the rise of the environmental
justice movement in the United States and this movement gained momentum in the early
1980s when those at the centre of environmental injustice were poor minority communities
agitating for political and socio-economic empowerment. Environmental injustice in the
United States and elsewhere had a discernible connection to race and ethnicity, and is related
to environmental racism, an idea that emerged following a 1987 report entitled Toxic Waste and
Race in the United States,124 which detailed how people of colour are disproportionately exposed
to and affected by environmental degradation.125 Revealing the intimate connection between
environmental justice and the potential of human rights to address those environmental
concerns related to the human condition, environmental justice has been defined as: ‘the
120 See, among others, V. De Lucia, ‘Critical Environmental Law and the Double Register of the
Anthropocene: a Biopolitical Reading’ in Kotzé (ed.), Environmental Law and Governance for the
Anthropocene, at 97–116; A. Grear and E. Grant (eds.), Thought, Law, Action and Rights in the Age of
Environmental Crisis (Cheltenham: Edward Elgar, 2015).
121 A. Grear, ‘Deconstructing Anthropos: A Critical Legal Reflection on “Anthropocentric” Law and
Anthropocene “Humanity” ’ (2015) 26(3) Law and Critique 225–49.
122 Kotzé and Villavicencio Calzadilla, ‘Somewhere between Rhetoric and Reality’, at 401–33.
123 See e.g. M. Matua, Human Rights: A Political and Cultural Critique (xxx: Penn, 2008).
124 Commission for Racial Justice, ‘Toxic Wastes and Race in the United States: A National Report on the
Racial and Socio-economic Characteristics of Communities with Hazardous Waste Sites’, New York, 1987.
125 Fisher, ‘Environmental Racism Claims Brought Under Title VI of the Civil Rights Act’, at 297;
A. R. Chase, ‘Assessing and Addressing Problems Posed by Environmental Racism’ (1993) 45 Rutgers Law
Review 341.
fair treatment and meaningful involvement of all people regardless of race, color, sex, national
origin, or income with respect to the development, implementation and enforcement of
environmental laws, regulations, and policies’.126 Human rights continue to play a dominant
role in efforts to achieve ‘fair treatment and meaningful involvement’ of all people in
environmental governance. Although there are examples of victories for nature and for human
beings and communities in the annals of environmental human rights law, they have been
rare, difficult to accomplish, and even more difficult to enforce and secure. The current pol-
lution in Manila Bay, the ongoing violations of human and environmental rights caused by
mining operations throughout the world, the failure of indigenous communities to protect
their livelihoods and their way of life and the decades-old litigation against oil exploration
in the Ecuadorian Amazon, are but a few examples of the challenges that under-privileged
communities face in asserting rights against powerful and well-resourced corporate institu-
tions. Indeed, the Indian judiciary’s attribution of juridical personality to the Rivers Ganga
and Yamuna discussed above, were responses to the failure of implementation of previous
judicial orders. It remains to be seen whether this approach is more effective than trad-
itional human-rights based approaches to protecting natural endowments.
Finally, there are those who believe in the human rights approach, either because it has
in some cases proven to be effective, or at the very least because no other approach has
proven more effective, but worry about diluting its efficacy by adding more (and more
attenuated) rights to the list of those that courts are being asked to enforce.127 Already,
courts around the world tend to be much less prone to enforcing so-called second and third
generation rights because they tend to require affirmative action by the government which
courts feel less capable of extracting and enforcing: asking a court to use its limited resources
to vindicate collective and diffuse rights of present and future generations when the capacity
for enforcement is so limited, uses resources which could be better used on enforcing negative
rights of a civil and political nature. Nonetheless, there is growing evidence of judicial
interest in and commitment to engaging with environmental rights, either in conjunction
with other rights or on their own. While the tendency is still to interpret constitutional
environmental rights in anthropocentric terms, there is also a growing inclination of courts,
from countries as distinct as Colombia and India, to vindicate constitutional protection for
nature as such.
While the jury is still out on the actual impact that environmental human rights achieve in
practice, there is a general view that:
constitutionalization of environmental protection as a fundamental right remains attractive.

People generally assume that rights, especially those enshrined in the constitution, embody
126 See EPA, What is Environmental Justice, available at: http://www3.epa.gov/environmentaljustice/.

127 See e.g. J. B. Ruhl, ‘The Metrics of Constitutional Amendments: And Why Proposed Environmental
Quality Amendments Don’t Measure Up’ (1999) 74 Notre Dame Law Review 245, discussed in May and
Daly, Global Environmental Constitutionalism, at 40.
values that cannot easily be compromised. The environmental cause might benefit were
people to regard environmental protection as the substance of a constitutional right.128
Despite the theoretical, structural, and pragmatic difficulties of enforcement in the political,
jurisdictional, interpretive, and remedial realms, pursuing environmental human rights
may be the most effective and truest way to protect the Earth for present and for generations
(of humans and nature) yet to come. Indeed, the best approach may be to redouble our
efforts to inform and educate all sectors—lay people and community activists, the lawyers
who represent them, and the judges who are increasingly aware of their unique authority to
protect the environment—to help make the world’s inhabitants who speak for themselves,
for others, and for nature itself, aware of their capacity for social and ecological change and
justice. Achieving such change and justice is particularly possible through the human
rights paradigm—a paradigm which has been, and continues to be a critical part of most
international, regional, and domestic law regimes the world over. The ultimate success of
applying the environmental human rights approach will depend on the extent to which we
are able to address the myriad shortcomings of environmental human rights, and to capitalize
on their strengths in renewed and innovative ways.

Anton, D. and D. Shelton, Environmental Protection and Human Rights (Cambridge: Cambridge
Boyd, D., The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and
the Environment (Vancouver: University of British Columbia Press, 2012).
Daly, E. Environmental Constitutionalism in Defense of Nature, 54 Wake Forest L. Rev. 101 (2019).
Daly, E. and J. May (eds,), Implementing Environmental Constitutionalism (Cambridge: Cambridge
Gellers, J., The Global Emergence of Constitutional Environmental Rights (Abingdon: Routledge, 2017).
Grear, A. and L. Kotzé (eds.), Research Handbook on Human Rights and the Environment (Cheltenham:
Knox, J. and R. Pejan (eds.), The Human Right to a Healthy Environment (Cambridge: Cambridge
Kotzé, L., Global Environmental Constitutionalism in the Anthropocene (Oxford: Hart Publishing, 2016).
May, J. and E. Daly, Global Environmental Constitutionalism (Cambridge: Cambridge University
Press, 2014).
128 H. Sik Cho and O. Pedersen, ‘Environmental Rights and Future Generations’ in M. Tushnet,
T. Fleiner, and C. Saunders (eds.), Routledge Handbook of Constitutional Law (Abingdon: Routledge, 2013),
401–12, at 404.
Pa rt I V
L E GA L C ON T E X T
chapter 47
a n d Constitu tiona l
a n d Pu blic L aw
Ole W. Pedersen

47.2 Policy and Law-Making in the Administrative State 1075
47.3 Constitutional Environmental Norms 1077
47.4 The Inevitable Locality of Environmental
Constitutional Rules 1080
47.5 ‘Non-Constitutional’ Points of Interaction 1081
47.6 Structures of Government 1084
47.7 The Impact of Environmental Law on Public and
Constitutional Law 1087
47.8 Conclusion 1089
47.1 Introduction
Environmental law in its modern form does not necessarily sit firmly within traditional
ideals of ‘public/private’ understandings of law. Historically it might be said that environ-
mental law (at least in common law jurisdictions) was primarily ‘private’ in the sense that
those seeking to facilitate what we would today brand environmental protection were, in
the absence of regulatory initiatives, forced to rely on private law actions such as nuisance
and trespass. Today, however, it seems trite to observe that modern environmental law is
1074 ole w. pedersen
increasingly regulatory: regulatory, in the sense that environmental norms increasingly

take the form of explicit control, directing and guiding mechanisms. The onset of the
administrative state and its rapid expansion throughout the twentieth century resulted in a
host of regulatory controls aimed at protecting human health and the environment. Though
these regulatory initiatives initially took the form of traditional public and administrative
law controls, benefitting from the backing of the executive apparatus as a means of securing
compliance, more recent developments suggest that regulatory initiatives are anchored not
only in the confines of the state but increasingly also from non-state agents and entities.
What is more, across this ‘administrative spectrum’, the regulatory tools available include a
wide range of mechanisms which cannot any longer be described as exclusively ‘public’ in
any traditional understanding.1
Having said that, a central domain of modern environmental law remains that of the state
and environmental law is, by its nature, ‘public’. This is so even where ‘regulatory’ controls
and initiatives are developed, implemented, and enforced through non-state mechanisms.
Consequently, and uncontroversially, the administrative state remains an important back-
ground, arbiter, and controlling influence behind modern environmental law. Against this
background of shifting patterns of ‘public/private’ this chapter considers the relationship
between environmental law and public and constitutional law (which is here broadly under-
stood to include constitutional norms and administrative law as well as provisions of rights).
This will be done through an examination of what the chapter calls ‘points of interactions’
between public and constitutional law and environmental law. In doing so, it will be shown that
public and constitutional law remain a central influence on modern environmental law and
that the points of interaction are found throughout the ‘life cycle’ of environmental law.
From the development of policy to the drafting of legislative initiatives and to the adminis
tration, implementation, and enforcement of environmental law, public and constitutional
law exerts an important influence on the form, content, and application of environmental
law. The chapter also highlights how environmental law can, at times, act as a central driver
behind public and constitutional law reforms more generally and administrative reforms
specifically. The chapter thus suggests that the relationship between environmental law and
public and constitutional law is a symbiotic one with multiple points of interaction, one
which plays out at several stages and at several different levels, perhaps even to the extent
that it begs the questions whether it is at all possible to separate modern environmental law
from the confines and reach of public and constitutional law. In addition, the actual work-
ings of this relationship can be seen as both facilitative and restrictive and often for different
reasons. That is, on the one hand, the ways in which frames of public and constitutional law
facilitate and provide ‘spaces’ for environmental law to emerge and, on the other, the ways
in which frames of public law and constitutional law place restrictions on the ability of
environmental law to achieve its objectives. Often these interactions are multifaceted, vari-
able, and complex.
Before embarking on the analysis a couple of qualifications must be made. First, in
relation to the facilitative/restrictive understanding, a point of caution must be made.
1 E. Fisher, ‘Unpacking the Toolbox: Or Why the Public/Private Divide is Important in EC
Environmental Law’ in M. Freedland and J.-B. Auby (eds.), The Public Law/Private Law Debate (Oxford:
Hart Publishing, 2006), 215–42; C. Reid, ‘The Privatisation of Biodiversity? Possible New Approaches to
Nature Conservation Law in the UK’ (2011) 23 Journal of Environmental Law 203–31.
environmental law and constitutional and public law 1075
Conceptualizing the functions of public and constitutional law as disabling to the role of
environmental law should not be taken to mean that the core function of environmental law
is necessarily that of absolute environmental protection and any hindrance to this is a negative
attribute of public and constitutional law. Taking this approach would be a simplification
of both systems of law. In other words, the extent to which environmental law succeeds in
meeting its statutory purposes does not necessarily stand or fall with the extent to which
public and constitutional law exert a strong disabling influence or not. Moreover, though
it may disappoint some, as a body of law, environmental law is arguably best understood
as exhibiting several, yet potentially conflicting, purposes at the same time. Approaching
environmental law exclusively from the instrumental point of view of its purpose being that
of securing absolute environmental protection, is a basis which is simply not borne out by
any reasonable reading of the law. That is to say, while environmental protection is central
to most of what we would identify as environmental law, it is not necessarily the exclusive
nor unqualified purpose of the law.
Likewise, caution should be taken in the attempt to distil generally applicable points from
the broad analysis put forward here. The main reason for this is that the terms ‘public law’
and ‘constitutional law’ will have different meanings and will entail different rules and con-
cepts, depending on which jurisdiction one approaches it from. This point is perhaps best
appreciated considering the significant differences and variations in the meaning of ‘admin-
istrative law’ and the extent to which it has developed over the years in many continental
European countries where it remains a well-established, fully fledged legal subject and dis-
cipline with specific and separate systems of rules, tribunals, ombudsmen, administrative
appeal procedures, often taught separately from constitutional law. This is, at least to some
degree, in contrast to the developments in many common law countries where administrative
law often remains a subset of ‘public law’—a term which often encompasses constitutional
rules as well. Thus, the exact configurations and workings of public law and constitutional
law will vary from jurisdiction to jurisdiction.
Finally, an important way in which these differences manifest themselves, which neces-
sarily impacts on environmental law, is in the way in which the law (and thereby also
environmental law) is, first, drafted by law-makers (more about this below) and, secondly,
implemented and applied by administrative agencies and tribunals and courts. This neces-
sarily entails significant variations in the ways in which the different points of interactions
discussed below emerge across jurisdictions.
47.2 Policy and Law-Making in

the Administrative State
The earliest point of interaction between public and constitutional law and environmental
law plays out, at a very general level, to the extent that any entity of government or indeed
any polity or society seeks to promulgate norms of environmental protection in the form
of regulation. Where such regulation is developed, this will very likely have to take place
within what we ordinarily perceive as being the confines of the ‘state’ and thereby also be gov-
erned by the rules, and administrative and legislative restrictions in public and constitutional
law to which a state is ordinarily subject.2 Environmental regulation, as with most other
types of regulation, is to a large degree a product of state intervention and derive, by its very
nature, from the powers and authorities afforded the state by a given constitutional system.
From this perspective it does not much matter what form the environmental regulation ends
up taking (be it by way of conventional regulatory techniques or economic, market-based
instruments) nor who will be charged with the actual application and implementation
(be it administrative agencies or private actors); the underlying policy and the law itself will
be formed and shaped from the confines of the state and thereby by the rules and restrictions
which public and constitutional law place on the state.
Examples of this include requirements that policy decisions and documents be subject to
specific democratic decision-making procedures and public consultations as well as meeting
the requirements of transparency and natural justice, relating to, for example, legitimacy
concerns.3 Basic public and constitutional law duties, for example such as requirements per-
taining to fairness, thus apply with equal force in the context of environmental law policy
and decision-making, with the potential to shape the content and form of that decision-
making.4 Similarly, requirements relating to, for example, screening of policy initiatives and
legislation on grounds of cost/benefit assessments, as well as other types of impact assess-
ments, apply to environmental law and policy initiatives. Bills of the UK Parliament as well
as pieces of secondary legislation—including those relating to the environment—are thus
subject to specific impacts assessment, establishing the cost and benefits of each legislative
initiative, allowing law-makers to make a more fully informed decision. Similar require-
ments are in place in the United States where cost/benefit analysis of rule-making and
regulatory actions is mandated by presidential orders.5 These requirements are evidently
not exclusive nor unique to environmental law and policy but apply to all areas of policy
and law-making except for where there might be specific exemptions carved out (e.g. in the
areas of national defence).
On a yet more general level, an important point of interaction between environmental
law and public and constitutional law plays out against the impact which the constitutive
form of the state has on the implementation of legislation. This is, for example, the case
where a so-called dualist system of the state serves to significantly shape the way in which
international environmental law is implemented in the domestic state. This point of inter-
action is important in the context of environmental law exactly because much of domestic
environmental law is strongly related to, at one level or the other, an international environ-
mental norm/rule. Consequently, in a dualist system where an international obligation only
gives rise to domestic legal obligations where it is explicitly recognized as doing so, for example
through parliamentary and legislative endorsement, the vast and important body of inter-
national environmental law will often remain of little domestic significance. This is in contrast
to the situation in a so-called monist system where international treaty obligations have
2 This of course does not mean that environmental laws necessarily have to emerge through regula-
tory, state-controlled means. See e.g. J. Adler, ‘Back to the Future of Conservation: Changing Perceptions
of Property Rights & Environmental Protection’ (2005) 1 New York University Journal of Law & Liberty
987 and J. Adler, ‘Free & Green: A New Approach to Environmental Protection’ (2001) 24 Harvard
Journal of Law & Public Policy 653.
3 e.g. R (on the application of Greenpeace) v Secretary of State for Trade and Industry [2007] EWHC 311.
4 e.g. Edwards v Environment Agency [2006] EWCA Civ 877.
5 e.g. Executive Order 12,191 (1981) and Executive Order 12,866 (1993).
direct domestic effect. In other words, the constitutional and public law regime of a given
state serves to significantly regulate the manner in which the domestic system is able to
interact with international environmental law obligations.6
47.3 Constitutional
Environmental Norms
As already noted, one of the basic points at which public and constitutional law interacts with
environmental law is by giving force to such norms through basic means of law-making and
administrative decisions. Most commonly this is done through the recognition of the desire
to regulate activities and harms posing a risk to human health and the environment. The
authority afforded a state to act in the context of environmental risks is, from time to time,
explicitly provided for on the constitutional level.7 These provisions vary extensively
from creating a specific obligation on the state to protect the environment (as in the case of
the Constitution of Poland)8 to more vague expressions of such duties (as in the case of the
Constitution of the Netherlands)9 to simply providing a basis for the state’s authority to
promulgate environmental protection provisions (as in the case of Italy).10
The functions served by constitutional environmental provisions are several. First, the
explicit recognition of environmental norms at the constitutional level serves to highlight
the relative importance attached to the issue and the need to address environmental risks in
modern societies. This is particularly so where a constitution is taken as expressing and
reflecting the core norms of a given polity.11 On this reading, the constitutional endorsement
of environmental norms is arguably more than just an enabling background. It becomes a
reflection of the priorities and values of a given society. That is, the importance of environ-
mental regulation is recognized and afforded constitutional footing in order to underline its
significance. But, as evidenced by McAdams, the expressive functions of law are multiple. In
addition to the constitutional norms mirroring and expressing societal values, the constitu-
tional provision potentially also act as a normative driver and not just a reflection of societal
priorities.12 On this reading, a constitutionally enshrined environmental norm/rule poten-
tially has the added advantage of spurring on and advancing societal concerns about the
environment. Although the extent to which a constitutional environmental provision serves
as an expressive reflection of existing norms or as an attempt to develop such norms (a form
6 See e.g. discussions on the relevance of the Aarhus Convention and the decisions by its Compliance
Committee in Walton v Scottish Ministers [2012] UKSC 44 [100] and Venn v Secretary of State for
Communities and Local Government [2013] EWHC 3546 (Admin) [36].
7 The most recent list of countries including environmental provisions, relating to the environment
is found in Annex C and D of J. May and E. Daly, Global Environmental Constitutionalism (Cambridge:
8 Chapter 2, Article 74(2). 9 Chapter 1, Article 21. 10 Part II, Title V, Article 117(s).
11 C. Sunstein, ‘On the Expressive Function of Law’ (1996) 144 University of Pennsylvania Law
Review 2021.
12 R. H. McAdams, The Expressive Powers of Law (Cambridge M.A.: Harvard University Press, 2015).
of norm-entrepreneur) is not always easy to establish, it seems entirely plausible that the
real function of a constitutional environmental provision will be a combination of the two.
In this light, it is perhaps not surprising that the addition of environmental norms to con-
stitutional documents is a relatively recent phenomenon.13 Importantly, however, where
such recognition takes place, it provides not only for an enabling environment in the sense
that it facilitates executive or administrative authority to develop environmental regulation.
It also provides a constitutional background to which judicial institutions and civil societies
at large can have recourse and upon which they can rely in their attempt to understand,
interpret, and develop specific environmental law mechanisms (to the extent such man-
dates are justiciable). Where this is the case, the enabling function of a constitution comes
to play a much more significant role as it acts not merely as a catalyst for executive action
but importantly also as an interpretive background, giving force to subsequent and second-
ary rules and administrative actions.
An example of this is where the constitutional provision takes the form of an explicit
right. Providing for constitutional environmental rights is exceedingly popular and a recent
examination suggests that nearly 100 constitutions across the globe contain some form of
environmental right.14 As with the general environmental mandates found in some consti-
tutions, environmental rights provisions vary significantly. Typically the rights can be
conceptualized as being either substantive or procedural (though in reality that distinction
often breaks down). Substantive rights to the environment will often be prefixed by reference
to the environment being ‘healthy’, ‘sustainable’, ‘favourable’, or similar qualifications. Examples
include the right to an ‘ecologically balanced environment’ in the Brazilian Constitution,15
the right to ‘an environment that is conducive to health’ found in the Norwegian Constitution,16
and the Spanish Constitution’s right to ‘enjoy an environment suitable for the development
of the person’.17 Again, the exact meaning of such prefixes of ‘healthy’ and ‘sustainable’ is not
always clear. On the one hand, they can be seen as qualifying the content of the right, mak-
ing it contingent upon certain specific circumstances though in reality there is little to sug-
gest that the prefixes make much by way of material difference to the content of the right.
Procedural rights will often include rights to access to information, participation and
independent review of environmental decisions, as well as rights in connection with specific-
ally mandated procedures (such as environmental assessments). Examples include Article
35(2) in the Constitution of the Czech Republic, allowing for the entitlement to ‘timely
and complete information about the state of the environment’,18 the constitution of Brazil
affording ‘any citizens . . . standing to bring a popular action’ in environmental matters,19 and
the Constitution of Finland which provides for a right to ‘the possibility to influence’ envir-
onmental decisions.20
Where the explicit recognition of a right is lacking in a constitution, rights can from time
to time be facilitated through the development of such norms by way of judicial fiat. The
active engagement with environmental rights by the Indian judiciary is a striking example
of the ways in which so-called ‘derivative rights’ can be developed even where there is no
13 See n. 7. 14 May and Daly, Global Environmental Constitutionalism, at 4.

15 Title VII, Chapter 6, Art. 225. 16 Article 110b.
17 Article 45(1). 18 Article 35(2) Charter of Fundamental Rights.
19 Title II, Chapter I, Art. 5, para. 73. 20 Constitution of Finland, Chapter 2, s. 20.
explicit reference to environmental rights in the constitution.21 The case-law of the Supreme
Court of India thus represent one of the earliest recognitions of environmental rights
through the expansive interpretation of other, related rights, such as the right to life.22
Whilst the commentary surrounding constitutionally enshrined environmental rights
has been mostly positive, the expression of environmental norms in the form of rights has
potentially limiting features as well. One important limiting feature is that these rights argu-
ably run the risk of significantly simplifying the complex issues involved in environmental
decision-making.23 In other words, it might be called into question whether constitutional
provisions are at all an appropriate outlet for environmental norms.24 A central point in
this line of argument is that knowledge and understanding of environmental problems and
potential solutions are likely to never be complete nor absolute and one way to accommodate
this ‘moving knowledge frontier’ is to maintain regulatory and administrative flexibility.25
To the extent that constitutional environmental provisions entrench and restrict regulatory
manoeuvrability, there is a risk that such provisions end up doing more harm than good.
Linked to this is the claim that the constitutionalization of environmental provisions will
result in a ‘cluttering’ of constitutional norms, trivializing the relative importance of consti-
tutional norms.26 Though such claims may run contrary to the points made above, and
seem an affront to those relying on and supporting the implementation of constitutional
environmental provisions, sceptics may well point out that the relative merit of constitu-
tional environmental provisions dwarfs compared to that of other more traditional types of
rights such as civil and political rights.
On the issue of the relationship between environmental rights and other types of human
rights, a further point of interaction emerges if one considers the restrictions which human
rights in general place on statutory and executive responses. Like any other area of law
and regulation, the drafting and administrative application of environmental law are subject to
restrictions found in the requirements to respect fundamental rights as these are propagated
in constitutions and instruments of international law. Regulatory environmental initiatives
will thus have to be developed and implemented with the need to respect fundamental
rights of, for example property, due process, and those of indigenous communities, in mind.27
Within the jurisprudence of international human rights tribunals a subset of decisions are
thus emerging, highlighting the potential restrictions which human rights norms place on
government responses and regulatory initiatives (and thereby also on environmental law).
These include decisions establishing that governments will have to ensure the rights of
21 May and Daly, Global Environmental Constitutionalism, at 118–19.

22 Subhash Kumar v State of Bihar No. 1991 A.I.R. 420, 1991 SCR.
23 O. W. Pedersen, ‘Climate Change and Human Rights: Amicable or Arrested Development?’ (2010) 1
Journal of Human Rights and the Environment 236.
24 C. T. Reid, ‘Pitfalls in Promoting Environmental Rights’ in S. Bogojevic and R. Rayfuse (eds.),
Environmental Rights in Europe and Beyond (Oxford: Hart Publishing, 2018).
25 D. Farber, Eco-Pragmatism: Making Sensible Environmental Decisions in an Uncertain World
(Chicago: Chicago University Press 1999), 174.
26 J. B. Ruhl, ‘The Metrics of Constitutional Amendments: And Why Proposed Environmental Quality
Amendments Don’t Measure Up’ (1998) 74 Notre Dame Law Review 245; C. Sunstein, ‘Against Positive Rights’
(1993) 2 East European Constitutional Review 35.
27 Pedersen, ‘Climate Change and Human Rights’.
particular groups are taken into account when embarking on projects and initiatives,
impacting on the livelihood of these groups.28
Out of all of the points of interactions between environmental law and public and consti-
tutional law this is arguably the one which has the strongest potential to limit the scope and
application of environmental law. This is particularly so considering the regulatory challenges
faced by climate change. A simplistically effective way to regulate climate change would, for
example, be to hold individuals responsible for personal emissions of greenhouse gases
through the allocation of individual quotas. Doing so, however, would necessarily have the
potential to significantly infringe on individual autonomy and on human rights which
give express force to such norms. Similarly, and to the frustration of some, international
climate change responses are necessarily constrained by existing norms and rules of public
international law ultimately restricting the effectiveness of the system (much like in the
example mentioned above about dual/monist state systems). This restriction is both func-
tional and institutional. For example, one of the more prominent constraints on the ability
of international community to adopt a binding and effective international regime is that of
sovereignty and lack of willingness (up to a recent point anyway) among particular states.
Similarly, the institutional framework under the UNFCCC in which the main international
responses to climate change have been drawn up has been heavily criticized for not being
conducive to the adoption of effective responses on account of its size and unwieldiness.
Such restraints are arguably a feature of the ability of existing structures of, in this case, public
international law to restrict the development of new and novel environmental law systems.
47.4 The Inevitable Locality of

Environmental Constitutional Rules
An important point in the context of constitutional environmental rules is that, while the
increase in the ‘constitutionalization’ of environmental provisions forms part of a wider
trend, suggesting that a consensus among states is perhaps emerging about the relevance of
such norms, it must be borne in mind that each constitutional provision will have to be
interpreted and understood in its domestic context. This is important, first, because it may
well entail specific and practical restrictions on the scope, form, and content of each provi-
sion which is not forthcoming by merely reading the relevant provisions. In other words,
the meaning of a constitutional provision is necessarily defined by the domestic constitutional
and legal cultures in which it operates and it cannot readily be assumed that terminology
like a ‘healthy’ or ‘sustainable’ environment and references to mandates of ‘environmental
28 Inter-American Court of Human Rights, Case of the Saramaka People v Suriname, Judgment of
12 August 2008. Series C no. 185. See also Inter-American Court of Human Rights, 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), where the IACHR found Belize to have violated the right to property under the American
Declaration of the Rights and Duties of Man of the Maya People by granting extensive logging and oil
extraction concessions without prior and proper consultations.
regulation’ necessarily mean the same across jurisdictions.29 Second, a useful way to
conceptualize this point further is by considering that constitutions can be seen as putting
forward a narrative, or story, of the particular state’s political and constitutional history as well
as its values and aspirations.30 Nowhere is this more emblematic than in countries where
such narratives are given force through entrenched constitutions; where the constitutional
provisions and ‘preambular . . . fairy tales’, give force to historical and national identities and
values.31 Again, the expressive or norm-creating function of constitutional environmental
rules necessarily becomes a ‘local’ expression, embodying the particular local traditions.
A further note of caution ought to be struck when it comes to constitutionally entrenched
environmental rights. First, notwithstanding the rising popularity of such rights, judicial
engagement with these rights has often been lacking behind their positive enactment. In
other words, there is a dearth of judicial doctrine, engaging with the interpretation, scope,
form, and content of constitutional environmental rights.32 This may well be explained by
reference to delayed effect and the argument that the relative novelty of these rights means
that they take time to bed into constitutional doctrine and jurisprudence. Some constitu-
tional provisions are ‘unlikely to achieve iconic status immediately’.33 But an important
aspect is likely also that the issues engaged with in the context of environmental rights often
touch upon issues which courts have historically seen as non-justiciable or, in the least, have
been hesitant to involve themselves with.34 In engaging with environmental rights claims,
some courts have thus found that such provisions are either in need of further executive
action in order to gain any meaningful content or that they do not give rise to enforceable
rights in and of themselves (i.e. the provisions are not ‘self-executing’).35 Where this is
the case, there is in reality very little to distinguish the provisions framed in the vocabulary
of rights from the general ‘enabling’ provisions.
47.5 ‘Non-Constitutional’
Points of Interaction
The argument that constitutional provisions offer rich and explicit points of interaction
between environmental law and regulation does not of course mean that in the absence of
29 C. Warnock and O. W. Pedersen, ‘Environmental Adjudication: Mapping the Spectrum Identifying
the Fulcrum’ (2017) Public Law 643, noting that comparative analyses of environmental law often serve
to highlight the complexity of the systems at hand.
30 D. Feldman, ‘The Nature and Significance of “Constitutional” Legislation’ (2013) Law Quarterly
Review 343, at 351–2.
31 Ibid.
32 J. R. May and E. Daly, ‘Vindicating Constitutional Environmental Rights Worldwide’ (2010) 11
Oregon Review of International Law 365.
33 Feldman, ‘The Nature and Significance of “Constitutional” Legislation’, at 253.
34 R. Lee, ‘Resources, Rights and Environmental Regulation’ (2005) 32(1) Journal of Law and Society 111.
35 J. L. Fernandez, ‘States Constitutions, Environmental Rights Provisions, and the Doctrine of
Self-Execution: A Political Question?’ (1993) Harvard Journal of Environmental Law Review 333 and
J. L. Horwich, ‘Montana’s Constitutional Environmental Quality Provisions: Self-Execution or Self-
Delusion?’ (1996) 57 Montana Law Review 323.
such provisions there is no scope for other points of interaction. If this was the case, countries
with no explicit environmental mandate in their constitution (like the United States) or
indeed those countries with no single codified constitution (like New Zealand and the
United Kingdom) would not be able to develop extensive environmental provisions. This is
evidently not the case as witnessed by the extensive amount of environmental controls and
regulations in place in these countries. Instead, in these jurisdictions, the enabling function
is provided for not necessarily on the ‘constitutional’ level but through means of trad-
itional primary legislation (leaving aside the argument that such Acts of Parliament are in
themselves ‘constitutional’ documents). In Britain for example, the Environment Act 1995
represent a prime example of the enabling function of public law in the form of primary,
non-constitutional legislation.36 Not only does the Act exemplify the facilitative nature of
public law mechanisms, it also represents an example of the way in which environmental
law initiatives are ‘legitimized’ through processes of public law. Environmental regulation
is here explicitly provided for and thereby endorsed and supported by way of an Act of
Parliament. In the absence of this parliamentary endorsement, the statutory framework
would not be possible. A few examples will highlight this point.
First, the Environment Act 1995 contains several provisions which, akin to the consti-
tutional provisions discussed above, permit or require relevant public authorities to adopt
certain environmental measures. In doing so, the Act affords the state the all-important
authority to enact and administer environmental law. Part II thus creates a system for the
designation of contaminated land,37 instructing local authorities to take certain measures
in the attempt to regulate the risks arising from contamination and Part IV requires the
Secretary of State to produce air quality plans with a view to lower emissions.38 Perhaps an
even stronger example of this enabling function is found in section 1 of the Act which
creates the Environment Agency as the primary regulator for the environment in England
(as an amalgamation of existing agencies) with the statutory purpose of protecting and
enhancing the environment.39 Again, this statutory creation of an administrative agency
serves an important public and constitutional law purpose of legitimizing an agency’s (in
this case, the Environment Agency’s), administrative powers. In the absence of these expli-
cit statutory powers, the agency would, from a public law perspective, be prevented from
undertaking any regulatory activities. Similar examples abound across various jurisdic-
tions, including that of the United States in which the federal Environmental Protection
Agency (EPA) was formed in 1972 through presidential decree. At this level, the enabling
and legitimizing function of public and constitutional law consequently facilitates not just
environmental law and regulation itself but also the administrative apparatus charged
with having to implement and enforce the law (within the confines allowed by constitu-
tional and public law).
Like the constitutional provisions, the primary ‘non-constitutional’ legislation providing
for administrative agencies, enabling administrative rule-making and decision-making,
36 In the context of the UK Constitution it may thus nevertheless be possible to construe certain
environmental statutes as ‘constitutional’ notwithstanding their status as ‘ordinary’ acts of Parliament.
See e.g. A. McHarg, ‘Climate Change Constitutionalism? Lessons from the United Kingdom’ (2011) 2
Climate Law 469.
37 Environment Act 1995, inserting Part IIA in the Environmental Protection Act 1990. See also the
contribution by E. Lees in this volume.
38 Environment Act 1990, Part V. 39 Ibid., ss. 1 and 4.
does not always offer exact details on the scope and extent of these statutory duties. The
upshot of this is that the administrative agencies necessarily enjoy a high degree of discre-
tion in exercising and executing their duties. In fact, there may well be reason to believe that
the discretionary latitude enjoyed by administrative agencies is a particularly prominent
feature of modern environmental law.40 This is particularly so considering the very nature
of environmental law. As noted above, one feature of environmental law is the fact that the
object of regulation (the environment) and our knowledge thereof changes rapidly. The
epistemological basis of the law is often lacking in certainty and is instead significantly
shaped by scientific assumptions and cost-benefit analyses. For this reason, it makes good
sense for law-makers to afford regulatory discretion to expert agencies who are then charged
not just with implementing legislative mandates and the enforcement thereof but also with
actual rule-making and development of the law. This discretion necessarily emerges in dif-
ferent shades and may take the form of a specific delegation, requiring the administrative
agency to take concrete yet non-specific measures, or it may emerge as a result of a lack of
explicit statutory instructions. Importantly for the present analysis, the exercise of discre-
tion is typically governed by ‘traditional’ rules of public and administrative law (in the form
of Wednesbury controls—as in the United Kingdom—or ‘arbitrary, capricious, or manifestly
contrary to the statue’ standards as in the United States). This point highlights the multifaceted
nature of the interaction between public and constitutional law and environmental law. The
administrative discretion enjoyed by an administrative agency charged with statutory envir-
onmental responsibilities flows directly from the enabling function of public and constitu-
tional law as mandated through constitutional rules or primary and/or secondary statutory
norms. At the same time, this discretion is confined by the norms and rules found in public
and constitutional law, seeking to restrain administrative agencies from reaching decisions
which are manifestly unjust, arbitrary, procedurally flawed, or irrational/unreasonable.
The upshot of this is that the application and administration of environmental law is, once
again, given force and shaped through doctrines and rules of public, constitutional, and
administrative law. This is important for present purposes as the exact confines and content
of the rules of environmental law will be shaped by rules strictly originating from outside
the discipline of environmental law—in this case, rules emerging from traditional norms of
public and administrative law. Examples of this include courts applying the above mentioned
public law doctrines to environmental disputes in part on the basis that the environmental
questions raised by a given case do not merit the development of environmentally-specific
doctrines and/or special consideration. Instead, traditional public law doctrines are main-
tained as a means of engaging with environmental adjudication. Examples include Smyth
in which the Court of Appeal rather emphatically rejected the claimant’s argument that
environmental cases ought to be subjected to a higher level of judicial scrutiny than ordin-
arily afforded other administrative law cases.41 On this reading, the ‘traditional’ rules and
doctrines found in public and administrative law serve as an interpretative background
against which environmental law must be contextualized.
40 E. Scotford and J. Robinson, ‘UK Environmental Legislation and Its Administration in 2013—
Achievements, Challenges and Prospects’ (2013) 25 Journal of Environmental Law 383. See also J. Cannon,
Environment in the Balance (Cambridge M.A.: Harvard University Press, 2015), 116.
41 Smyth v Secretary of State for Communities and Local Government [2015] EWCA Civ 174.
On the other hand, there are examples of courts developing special and separate doctrines
in response to environmental claims. This is most prominently the case in areas where
administrative agencies, as noted above, benefit from explicitly delegated authority and
are trusted with having to weigh competing yet relevant factors against one another in the
attempt to execute their administrative duties. A striking example of this is decision-making
in the area of development control and planning. Here, courts, for very good reasons, are
cautious of second-guessing the exact weighing of decisions made by administrative agen-
cies as long these are, broadly speaking, rational and lawful.42 In other words, within par-
ticular environmental law contexts, the courts are willing to afford decision-makers a wide
scope of discretion on account of the nature of the decision-making and the relevant factors
which the decision-maker is obliged to take into account. This is similarly prevalent in cases
which involve the scrutiny of administrative decisions which are, in one way or the other,
based on scientific assessments or reasoning. In such cases, as with those concerning devel-
opment control and planning, case-law suggests that courts are willing to afford admin-
istrative agencies wide discretion. In Downs the Court of Appeal in the United Kingdom
consequently found against a claimant, seeking to impugn the regime for pesticides use in
the United Kingdom primarily on the grounds that the decision-maker had conducted
inadequate risk assessments. In finding against the claimant, the Court specifically held that
in a highly technical field as this, the hurdle of establishing a ‘manifest error’ was a formid-
able one.43 Similarly in Levy, the High Court held that in cases where an agency makes ‘use
[of] its specialist and technical expertise to evaluate the applications, to appraise complex
scientific and commercial material and then to produce a reasoned decision’44 ‘the margin
of appreciation allowed [. . . .] is substantially greater than that which should be accorded
in the average case’.45 In other words, while courts will often insist on administrative agen-
cies and regulators providing the court with sufficient evidence and background information,
allowing the court to ascertain the rationality and legality of the decision, they are willing
to afford environmental decision-makers wide discretion in the recognition that such
decisions will often involve the weighing of one piece of scientific evidence against another.46
Consequently, courts, up to a point, accept the claim that environmental decision-making,
involving scientific and predictive assessments (as many environmental decision inevitably
do), ought to benefit from high level of deference and in doing so in part dispense with
traditional rules and norms of public and administrative law.
47.6 Structures of Government
The point made above about the importance of appreciating the local and domestic context
of constitutional environmental provisions highlights another significant feature of the
42 See e.g. R. (Jones) v Mansfield DC [2004] Env. L.R. 21 per Carnwath LJ [61]. Arguing that these
ecisions ‘require . . . the exercise of judgment, on technical or other planning grounds, and [that] is a
d
function for which the courts are ill-equipped, but which is well-suited to the familiar role of local
planning authorities’.
43 Downs v Secretary of State for the Environment, Food and Rural Affairs [2009] EWCA Civ 664 [76].
44 Levy v Environment Agency [2002] EWHC 1663 (Admin) [79]. 45 Ibid., [81].
46 e.g. R. (Mott) v Environment Agency [2016] EWCA Civ 564 and Kennecott Copper Corp v EPA F2nd
846 (1972).
r elationship between environmental law and public and constitutional law: the fact that the
form and content of environmental law will be considerably shaped by domestic structures
of government (and governance) as these are manifested in, and given force through,
constitutional law more generally. Consequently, the ways in which a state is structured in
terms of the basic functions of government, its competences and authority, evidently impact
on the form and content of environmental law.
A useful illustration is found in the supra-national structures of the European Union
(EU) and the extensive body of environmental law and regulation developed over the years.
As a matter of basic constitutional law, the EU can only adopt legislative initiatives in
accordance with the competences afforded it by its Member States under the Treaties. While
these are extensive, it was not until the Single European Act of 1986 that the EU was afforded
explicit competence in the area of environmental law. Prior to this, the constitutional bases
of EU environmental initiatives were primarily found in the Treaty provisions, providing
for competence of the EU to take steps to further the workings of the common market or
the need to protect what was then the Community’s common heritage.47 Following the
expansion of the EU’s scope to adopt environmental measures in the Single European Act,
the competences of the EU have been further expanded, through the Lisbon Treaty, specifically
to include ‘climate change’ as an area in which the Union can adopt regulatory measures.
These competences and structures of government are important not only in the context
of who is entitled and/or required to act in specific area but also for the form and content of
environmental regulation and law itself.
The EU’s response to climate change as part of its 2030 framework (and the 2020 frame-
work before it) provides a useful example. Through the climate change frameworks and the
fact that it has been given explicit competence in the area of environmental law and climate
change, the EU has made an extensive and concerted effort to draw up regulatory responses
to climate change. Though the EU has developed a wide range of significant regulatory ini-
tiatives, including the emissions trading Directive48 and the energy efficiency Directive,49
the constitutional foundations of its competences and the constitutional decision-making
procedures serve in part to place restrictions on the form of the regulatory measures that
the EU can realistically adopt. An important reason behind the development of the emis-
sion trading scheme (ETS) was thus that previous attempts by the European Commission
to develop a carbon tax had been rebutted by some Member States on the basis that fiscal
measures require unanimity.50 Similarly, the extensive use of what may seem like trivial
components of the 2030 framework (such as legislation on the energy performance of
buildings51 and design requirements for household lighting fixtures),52 further highlights
how the institutional design and constitutional allocation competences of the EU arguably
drove the Commission to focus on regulatory approaches and standards with which it has
developed an extensive familiarity over the years.
47 Examples include the 1979 Birds Directive (79/409/EEC).

48 Directive 2003/87/EC. 49 Directive 2012/27/EU.
50 A. Jordan et al, Climate Change Policy in the European Union (Cambridge: Cambridge University
Press, 2010), 131.
51 Directive 2002/91/EC.
52 Regulation 244/2009 on ecodesign requirements for non-directional household lamps.
Additional support for the argument that the constitutive and institutional arrangements
of the state impact on the form and content of environmental law emerges when observing
the structures of how environmental law is developed across different systems of govern-
ance. Indeed in federal states (such as the United States and Australia), much as in between
Member States of the EU, environmental laws will vary significantly from state to state and
reflect local practices. Importantly, under these governing structures, the interplay between
state laws and federal constitutional provisions is often complex and has significant poten-
tial to impact on environmental rules and standards. For example, to what extent does
federal law place restrictions on state environmental law? And to what extent can federally
enacted environmental law pre-empt state law or, on the contrary, to which extent can it
serve to compel the adoption of certain minimum standards? That is, to what extent do
federally enacted provisions operate as either a ‘floor’ or a ‘ceiling’, inducing or restricting
the ability of states to adopt specific measures? To appreciate the potential for federal law
to shape state environmental law consider the situation where federal law sets certain
minimum standards for, for example, air quality, but ultimately leaves the implementation
of this in the hands of state (or indeed local) regulatory agencies.53 Or alternatively the
situation where federal law mandates general broad principles and objectives which are
then given force through explicit standards promulgated on state (or local level). The exact
configuration of this regime necessarily has a significant impact on both the institutional
and regulatory design, responding to a specific environmental problem. For example, where
a federal statute operates as a floor, aiming at setting core minimum standards, space emerges
for institutional and regulatory diversification across states (and possibly within states),
reflecting local preferences and experiences.54 On the contrary, federally enacted ‘ceilings’
prevent such regulatory and institutional diversity, as the federal rule remains exclusive.
The scope for significant differences in substantive environmental law within states is
not, however, reserved for federal states. Even in the United Kingdom it is increasingly
evident that a divergence in environmental law and standards is manifesting itself as a result
of the devolution settlements. Across the UK jurisdictions, differences are thus emerging:
most notably in the context of organizational arrangements (in Northern Ireland the
Northern Ireland Environment Agency remains a part of the departmental administration
whereas the respective environment agencies on England, Wales, and Scotland are all inde-
pendent non-departmental organizations); differences also emerge in the attempt to facili-
tate coherence and integration of regulation (with England and Wales taking the lead in
integrating and consolidating much of its regulation on industrial pollution in one permit-
ting regime and Scotland aiming to follow); and in the enforcement of environmental law
(with regimes for civil sanctions being implemented in England and Wales in order to sup-
plement the criminal law). On the face of it, this divergence may seem troubling. After all,
what need could there be for standards to diverge significantly from within relatively
aligned parts of a small state? Would it not simply result in citizens in one part of the United
Kingdom enjoying better levels of environmental protection than those living in other
parts? In contrast, if the earlier discussion about the expressive and normative functions of
53 D. M. Driesen, ‘The Ends and Means of Pollution Control: Toward a Positive Theory of
Environmental Law’ (2017) 1 Utah Law Review 57.
54 See in general W. W. Buzbee, ‘Asymmetrical Regulation: Risk, Preemption, and the Floor/Ceiling
Distinction’ (2007) 82 New York University Law Review 1547.
constitutional norms hold true, then there presumably is nothing wrong with standards
varying from, say, Scotland to Wales, from California to West Virginia or from Victoria
to Western Australia. As with constitutional norms, the specific content of the relevant
environmental law and regulation can instead be seen as simply reflecting the relevant
preferences of each jurisdiction.
47.7 The Impact of Environmental Law

on Public and Constitutional Law
Having examined the ways in which environmental law is shaped by rules and doctrines of
public and constitutional law, it is appropriate to consider the extent to which environmen-
tal law in turn has the potential to shape the form and content of public and constitutional
law. In doing so, it ought to become evident that environmental law has had significant
impacts beyond the confines of its own discipline.
One example of this is the way in which the strong emphasis on public participation and
accountability mechanisms of environmental law have found application across public
administration more generally. Principles of public involvement and participation are cen-
tral to environmental law and given force throughout a range of different legal instruments
and jurisdictions. In international law, the 1992 Rio Declaration and Agenda 21 have spurred
on specific treaty regimes in the form of the 1998 Aarhus Convention on access to environ-
mental information, public participation, and access to justice. Linked to this are the specific
regimes for access to environmental information developed in the EU which can be traced
back to the mid-1980s and the Union’s Fourth Action Programme on the environment. An
even earlier driver for the move towards citizens’ involvement in environmental decision-
making is arguably found in domestic enactments of environmental assessment regimes,
most notably in the United States in the form of the 1970 National Environmental Policy
Act and the 1985 EU Directive on environmental impact assessment,55 allowing individuals
the ability to make representations in environmental decision-making. Taken together,
this trend has, over the years, resulted in principles of public participation coming to form
an integral part of environmental law. Importantly, however, the importance of access to
information and participation (with the implicit emphasis on enhanced legitimacy and
accountability) has subsequently found footing within public administration more generally.
A constructive example of this is the subsequent enactment of the more general and broader
freedom of information regime in the Freedom of Information Act 2000 in the United
Kingdom. While the relationship between, on the one hand, long-established rules on access
to environmental information and, on the other hand, a general freedom of information
regime is not necessarily strictly linear, it does suggest that ‘environmental law and regulation
has proved to be at the forefront in articulating principles and precedents that are central to
a contemporary constitutional settlement’.56
55 42 U.S.C. §§4321-4370h and Directive (85/337/EEC).

56 R. Macrory, Regulation, Enforcement and Governance in Environmental Law (Oxford: Hart
Publishing, 2nd edn. 2014), 228.
Reasons for this may well be found in the fact that, as a legal discipline, environmental
law is a relatively recent origin and may therefore be an altogether more suitable venue for
the testing of significant new means of regulation. There can, moreover, be no doubt that
novel ideas of and approaches to, in this case, regulation would have found a more receptive
and willing audience in the context of the epistemic communities of the environmental law
than in more well-established disciplines of law, including public and constitutional law.
From its early beginnings in the 1960 and 1970s, the environmental movement inevitably
found itself on the fringes of public discourse (no doubt as a result of its willingness to con-
sider and propose new methods and approaches to regulation), making it a useful outlet for
novel approaches. These approaches have subsequently had an impact well beyond the rela-
tive narrow confines of environmental law and regulation. Other examples of this pattern of
‘testing’ methods of regulation in the subset of environmental law and regulation include,
in the United Kingdom, the introduction of a new set of civil sanctions, aimed at affording
regulatory agencies a wider range of enforcement options in addition to merely relying on
the criminal law.57
Another example of environmental law and regulation having a wider impact beyond the
confines of its own discipline is arguably also found in the approach presently taken in
many jurisdictions to access to justice. Broadly speaking, historically, only individuals who
had suffered loss of private rights were afforded the ability of pursuing their claim in court.58
Over time, and on the back of the public participation developments described above, a
significant shift has taken place and standing to challenge administrative environmental
decisions are now readily afforded environmental groups and organizations as well as citi-
zens, even where these lack pure private interest in a decision (though the rules on standing
before the EU courts remain a notable exemption to this). An important driver behind this is
judicial receptiveness towards accepting claimants from a broader base in environmental
law claims. In the important decision R v HM Inspectorate of Pollution ex parte Greenpeace
Ltd (No 2),59 relating to the challenge of administrative authorization of a reprocessing
plant in conjunction with a nuclear power plant, standing was thus afforded an organiza-
tion, representing the wider public. Similarly, in Edwards, standing to challenge a decision
by the Environment Agency in judicial review was readily afforded to a local resident who
lacked a permanent address by reference to him being ‘affected by any adverse impact on
the environment’.60
Importantly, however, the willingness of courts to entertain the argument that environ-
mental claims justify a wider base of claimants than was traditionally the case, may well be
justified by reference to two separate reasons. First, it may simply be that courts appreciate
that environmental claims are ‘special’ and that the ‘public good’ nature of some environ-
mental cases entails a need for a wider base of standing. In other words, by their very nature,
environmental claims require, on account of a high level of public interest, that standing
requirements are relaxed. This is particularly so considering the development in certain
57 Ibid. See also O. W. Pedersen, ‘Environmental Enforcement Undertakings and Possible Implications:
Responsive, Smarter or Rent Seeking?’ (2013) 76 Modern Law Review 319.
58 T. Zwart, ‘Overseeing the Executive: Is the Legislature Reclaiming Lost Territory from the Courts?’
in S. Rose-Ackerman and P. L. Lindset (eds.), Comparative Administrative Law (Cheltenham: Edward
Elgar, 2010), 148.
59 [1994] 4 All ER 329.
60 R v (Edwards) v The Environment Agency [2004] EWHC 736 (Admin) [16].
jurisdictions of separate regimes for the allocation of costs of judicial environmental cases
(following the Aarhus Convention), effectively making it cheaper to bring environmental
claims to the courts compared to other public law claims. Another point which may serve to
explain (at least in part) the willingness to afford standing to a wider group of claimants in
environmental cases is that doing so is justified on grounds of adherence to the rule of law.
On this understanding, the significant expansion of the administrative state witnessed in
the second half of the twentieth century (in the context of environmental law and in other
areas of law and administration) serves as a background against which courts have become
increasingly willing to assert their supervisory jurisdiction in order to keep independent
controls on the expanding executive and administrative apparatus. Whatever the explan-
ation, there is reason to suggest that in this expansion, environmental law has played an
active role—either as a direct cause or as a useful exemplification, providing courts with an
administrative and regulatory opportunity.
47.8 Conclusion
Long before environmental concerns would have been remotely close to register with
constitutional drafters and interpreters, Maitland famously observed that ‘there is hardly
any department of law which does not, at one time or another, become of constitutional
importance’.61 And so it seems with environmental law. As evidenced by this chapter, the
relationship between environmental law and public and constitutional law is multifaceted.
From a very general perspective, much of modern environmental law is ‘public’ and ‘admin-
istrative’ 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, broadly speaking, from constitu-
tional and public law. On this reading, public and constitutional law is facilitative of envir-
onmental law and regulation. However, as suggested in this chapter, 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 (notwithstanding that such argu-
ments rest on potential misunderstandings of the law). As if this was not enough, 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 and public law. Altogether this suggests that the rela-
tionship 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.

Buzbee, W. W., ‘Asymmetrical Regulation: Risk, Preemption, and the Floor/Ceiling Distinction’
(2007) 82 New York University Law Review 1547.
Cannon, J., Environment in the Balance (Cambridge M.A.: Harvard University Press, 2015).
61 F.W. Maitland, The Constitutional History of England (Cambridge: Cambridge University Press,
1955) (first published in 1908), 538.
Fisher, E., ‘Unpacking the Toolbox: Or Why the Public/Private Divide is Important in EC Environmental
Law’ in M. Freedland and J.-B. Auby (eds.), The Public Law/Private Law Debate (Oxford: Hart
Publishing, 2006), 215–42.
2nd edn. 2014).
May, J. and E. Daly, Global Environmental Constitutionalism (Cambridge: Cambridge University
Press, 2015).
Publishing, 2017).
Scotford, E. and J. Robinson, ‘UK Environmental Legislation and Its Administration in 2013—
Achievements, Challenges and Prospects’ (2013) 25 Journal of Environmental Law 383.
Warnock, C. and O. W. Pedersen, ‘Environmental Adjudication: Mapping the Spectrum Identifying
the Fulcrum’ (2017) (October) Public Law 643.
CHAPTER 48
a n d Pr i vate L aw
David Howarth

48.2 What Is Private Law? 1093
48.3 Two Aspects of the Relationship Between
Environmental Law and Private Law 1095
48.3.1 Private Law as Environmental Law 1096
48.3.1.1 Agreements Protective of the Environment 1096
48.3.1.2 Private Legal Actions in Respect of
Environmental Harm 1098
48.3.1.2.1 Who Can Sue 1099
48.3.1.2.2 Who Can Be Sued 1100
48.3.1.2.2.1 Suing the State 1100
48.3.1.2.3 Actionable Damage 1101
48.3.1.2.4 Conditions of Liability 1102
48.3.1.2.4.1 Other Possible Variants
on Fault 1102
48.3.1.2.4.2 Strict Liability 1103
48.3.1.2.4.3 Special Rules in Nuisance/
Troubles Anormaux 1104
48.3.1.2.4.4 Private Law Liability
Rules and the Polluter-
Pays Principle 1105
48.3.1.2.5 Causation 1105
48.3.1.2.5.1 Factual Causation 1106
48.3.1.2.5.2 Legal Causation 1107
48.3.1.2.6 Remedies 1108
48.3.1.2.7 Particular Problems of Climate Change
Litigation1109
1092 david howarth
48.3.1.3 Refusal to Enforce Environmentally

Damaging Agreements 1110
48.3.1.4 Summary 1111
48.3.2 Environmental Law in Private Law 1112
48.3.2.1 Environmental Crimes as the Basis of Private
Law Actions 1113
48.3.2.2 Environmental Regulatory Compliance as a
Defence in Private Law Actions 1116
48.1 Introduction
The relationship between environmental law and private law has long been controversial
and unhappy. Environmental lawyers have often been suspicious of private law, seeing it
as steeped in individualism and as not committed to basic collective principles such as the
polluter-pays and precautionary principles. In return, private lawyers have tended to see
environmental law as a disturbing mélange of different types of law, devoted not to uphold-
ing rights and providing justice between the parties but to politically determined policy
goals. The two sides seem to agree on only one thing: that environmental law and private
law do not mix and should as far as possible be isolated from each other.1 The image pre-
sented by both sides is of a fixed and antagonistic relationship, an image further dogged by
stereotypes and overgeneralizations, for example about differences between the common
law and civil law.
The purpose of this chapter is not to contribute directly to the controversy, or indeed to
the unhappiness, surrounding the relationship between environmental law and private
law—although it is worth noting that the balance of the debate has shifted again towards
recognizing the importance of private law in the development of environmental controls, at
least as long as private law claimants are themselves driven by concern for the environment.2
Its purpose instead is to describe the variety that exists across different legal systems in how
the two relate to each other. In doing so, it hopes to widen the range of solutions and tech-
niques available to lawyers in different jurisdictions. It is an exercise not in developing a
definitive answer to the question of how environmental law and private law should interact
but in preparing a catalogue of the ways in which they might interact. Before doing that,
however, we need to clear the ground by setting out what we mean by private law.
1 S. Bell, D. McGillivray, and O. Pedersen, Environmental Law (Oxford: Oxford University Press,
2013), 280–3; P. Cane, ‘Using Tort Law to Enforce Environmental Regulations?’ (2002) 41(3) Washburn
Law Journal 427–68.
2 B. Pontin, Nuisance Law and Environmental Protection: A Study of Nuisance Injunctions in Practice
(Witney: Lawtext, 2013).
environmental law and private law 1093
48.2 What Is Private Law?
One of the most important lessons of comparative law is that unless handled with care legal
transplants can cause trouble.3 The very concept of ‘private law’ is such a transplant. Its origin
is in Roman law. As the Institutes say:4
Huius studii duae sunt positiones, publicum et privatum. publicum ius est quod ad statum rei
Romanae spectat, privatum quod ad singulorum utilitatem pertinet. dicendum est igitur de
iure privato, quod tripertitum est; collectum est enim ex naturalibus praeceptis aut gentium
aut civilibus.
The concept of private law, for the most part stripped of any reference to ius gentium and ius
naturale, passed into those modern legal systems heavily influenced by Roman law, particu-
larly the French and the German systems, in which the jurisdictional structure of the courts
reinforces the distinction between private and public law. Lawyers and philosophers from
other systems, particularly systems derived from English law, have long found the distinc-
tion difficult. Lacking separate courts for public and private law litigation and, more import-
antly, lacking a clear theory of the state and so a distinct idea of public law,5 many of them
struggle to make sense of private law as a category.6 They confuse it with common law as
opposed to statutory law, worry that use of the word ‘private’ implies a claim that the state
is somehow not involved in private law, and resort to arguments aimed at establishing not
that private law is a distinct category but rather that it ought to be.7
This not to say that all the definitions of private law used in Roman law-derived systems
are themselves satisfactory. The idea, for example, that private law comprises all the legal rules
that derive from recognising the principle of individual autonomy or freedom of the will, an
idea prominent in German legal thought, at least in twentieth-century interpretations of
nineteenth-century debates,8 if taken literally would artificially restrict the range of what
can count as private law. For example, strict liability torts might not obviously derive from
the concept of individual autonomy.
Another approach might be to say that individual autonomy is important to private law,
marking it out from other forms of law, in a different way: not so much in the properties of the
rules themselves, which may or may not have a basis in the concept of freedom of the will, as in
what individuals can do with them. In private law, on this point of view, individuals can choose
3 For a summary of the long-running debate on legal transplants see A. Bakardjieva Engelbrekt, ‘Legal
and Economic Discourses on Legal Transplants: Lost in Translation?’ in P. Wahlgren (ed.), Scandinavian
Studies in Law vol 60: Law and Development (Stockholm: Stockholm Institute for Scandinavian Law, Law
Faculty, Stockholm University, 2015), 111–40.
4 Tribonian, Institutiones (Constantinople: Justinian, 533), Lib I, Tit I.
5 See generally M. Loughlin, Public Law and Political Theory (Oxford: Clarendon, 1992); J. Allison,
A Continental Distinction in the Common Law (Oxford: Oxford University Press, 1996).
6 W. Lucy, The Philosophy of Private Law (Oxford: Oxford University Press, 2006), 436.
7 Ibid., at 12–21.
8 See generally S. Hofer, Freiheit ohne Grenzen? privatrechtstheoretische Diskussionen im 19.
Jahrhundert (Tübingen: Mohr Siebeck, 2001).
1094 david howarth
to press their claims or to drop them or to settle them as they wish. But this approach has its
own flaws. The ability to press or drop claims is not excluded from other fields of law. Historically,
many legal systems treated crimes as capable of being settled by victims, and exceptionally
some still do, even for murder.9 Moreover, public law litigants can choose to press or drop their
claims, even though limitations might exist on their ability to settle (e.g. accepting money in
settlement of claim that a public authority lacked the power to make a decision suffers from the
inherent defect that a claimant’s agreement cannot create a power that does not exist).
Furthermore, any attempt to derive the content of private law from the value of freedom
or autonomy can be criticized as an unnecessarily ideological exercise. As those who worked
on the European Private Law Draft Common Frame of Reference recognized, private law is
capable of responding to a wide range of principles and values, which they grouped under
the headings freedom, security, justice, and efficiency.10 Despite the hopes and fears of some
writers,11 no necessary connection exists between the mere existence of private law and any
specific political programme. On the contrary, private law rules can be designed that further
or complement a wide variety of political or policy goals.
The conclusion that private law can be used for a variety of purposes, however, is not
without its own critics. Some writers object to the very idea of designing private law rules
to achieve public policy goals,12 and many of these writers also object to public policy-making
by judges.13 These authors, however, either openly acknowledge that they are engaged in a
normative rather than an analytical exercise, with its own essentially ideological purpose of
isolating private law from politics, or else claim to be setting out an ‘interpretation’ of the
existing law in a very limited range of jurisdictions, usually England or the United States.14
The point about the capability of courts is separate, but seems to confuse private law with
common law. The limitations of judges as makers of public policy do not apply to legislators,
and so cannot be used to criticize the provisions of statutes or codes.
For comparative purposes we should aim as far as possible to avoid the twin traps of
parochialism and ideology. Since the concept of private law itself derives from actual legal
systems, and not from a more abstract theory, it is arguably impossible fully to achieve uni-
versality and neutrality. Any conception of private law we adopt will inevitably be open to
criticism. But on the basis that we need a rough tool for immediate use and not a perfectly
honed scientific instrument, I propose to count as private law any rule or body of legal rules
that purports to govern legal relationships or disputes between parties who are not acting as
state officials or bodies.
9 M. Dyson (ed.), Comparing Tort and Crime: Learning from across and within Legal Systems (Cambridge:
Cambridge University Press, 2015); R. Peters, Crime and Punishment in Islamic Law: Theory and Practice
from the Sixteenth to the Twenty-First Century (Cambridge: Cambridge University Press, 2006), 146.
10 C. von Bar, E. Clive, and H. Schulte-Nölke, Principles, Definitions and Model Rules of European
Private Law: Draft Common Frame of Reference (DCFR) (Munich: Sellier, 2009).
11 e.g. M. Streit, ‘Economic Order, Private Law and Public Policy The Freiburg School of Law and
Economics’ (1992) 48(4) Journal of Institutional and Theoretical Economics 675–704; D. Singh Grewal and
J. Purdy, ‘Introduction: Law and Neoliberalism’ (2014) 77(4) Law & Contemporary Problems 1–23.
12 e.g. Ernest Weinrib, The Idea of Private Law (Oxford: Oxford University Press, 2012).
13 P. Cane, ‘Rights in Private Law’ in D. Nolan and A. Robertson (eds.), Rights and Private Law (Oxford:
Hart Publishing, 2012), 35–64, 41.
14 D. Nolan and A. Robertson, ‘Rights and Private Law’ in Nolan and Robertson (eds.), Rights and
Private Law, at 1–34, 5. See generally J. Goudkamp and J. Murphy, ‘The Failure of Universal Theories of
Tort Law’ (2015) 21(2) Legal Theory 47–85.
I make three observations about this conception of private law. First, the reference to
‘legal relationships or disputes’ is designed to cover both contracts, which are first and
foremost relationships and only exceptionally give rise to disputes, and torts/delicts, which
are the opposite. Second, It refers to what the rules themselves purport to do and not directly
to the nature of parties, so that the possibility that a rule might be used additionally to govern
a relationship between a citizen and the state, for example when the state acts as a fisc and
not as a sovereign, does not disqualify the rule as a rule of private law. Third, the intention
of the rider ‘not acting as state officials or bodies’ is to exclude both criminal law and public
law. This is perhaps the main weak point of the definition, since it presupposes a clear legal
theory of the state and so we must tolerate some loss of analytical power when dealing with
systems that lack such a theory.
The third observation has an important consequence. A literature exists in English about
what is called ‘civil liability’ for environmental damage.15 The term is, however, confusing,
since in this context the word ‘civil’ merely means ‘not criminal’. It does not rule out regulatory
liability, in the sense of duties to pay sums of money to state bodies but not to individual vic-
tims. Indeed the possibility of regulatory liability has led to the possibly strange concept of a
‘civil penalty’, where the sum due exceeds the value of the damage caused but the process of
imposing it is not ‘criminal’.16 That means that, according to this usage, as odd as it might seem
to the intellectual descendants of Trebonian, ‘civil’ liability is not necessarily liability in private
law. For example, the system of regulatory liability envisaged by the EU’s Environmental
Liability Directive17 is often classified in English-speaking jurisdictions as ‘civil’ liability, even
though, admittedly after much hesitation, that Directive deliberately chose not to create pri-
vate law rights and duties.18 The confusion is reinforced by including within the category of
‘civil liability’ cases of true private law liability, for example liability for damage caused by
nuclear accidents as required by the Paris Convention of 1960 (as implemented by, for instance,
the UK’s Nuclear Installations Act 1965) and cases of combinations of private law and regula-
tory liability, for example the regime required by the treaties on marine oil pollution.19
48.3 Two Aspects of the Relationship

Between Environmental Law
and Private Law
Another important distinction is between two different kinds of interaction between

environmental law and private law. The first kind of interaction starts with private law and
15 e.g. Mark Wilde, Civil Liability for Environmental Damage: A Comparative Analysis of Law and
Policy in Europe and the US (The Hague: Kluwer, 2013).
16 R. White, ‘ “It’s not a criminal offence”—Or Is It? Thornton’s Analysis of “Penal Provisions” and the
Drafting of “Civil Penalties”’ (2011) 22(1) Statute Law Review 17–37; M. Jefferson, ‘Regulation, Businesses,
and Criminal Liability’ (2011) 75(1) Journal of Criminal Law 37–44.
17 Directive 2004/35/CE of the European Parliament and of the Council of 21 April 2004 on environ-
mental liability with regard to the prevention and remedying of environmental damage.
18 M. Hinteregger, Environmental Liability and Ecological Damage in European Law (Cambridge:
Cambridge University Press, 2008), 5–25; Bell, McGillivray, and Pedersen, Environmental Law, at 391.
19 Hinteregger, Environmental Liability and Ecological Damage in European Law, at 26–8.
1096 david howarth
asks how it might be relevant to the subject matter of environmental law, for example how
private law might serve to deter or repair environmental damage. The second kind of
interaction starts with environmental law and asks how it affects private law, for example
whether environmental regulation is recognized and given effect in private law. The first
might be called private law as environmental law, the second environmental law in private
law. The two types of interaction themselves interact. The extent to which a legal system
allows environmental law to affect private law will help to define the role of private law as
environmental law in that system. But the two issues are distinct.
48.3.1 Private Law as Environmental Law

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. Third, it can refuse to facilitate agreements that
harm the environment. In most legal systems the first is a matter of contract and property
law, the second of tort/delict or property law, and the third mainly of contract law.20
Jurisdictions vary in the extent to which their systems of private law function in these ways.
48.3.1.1 Agreements Protective of the Environment

Sceptics about the utility of private law as environmental law point out that many environ-
mental problems arise precisely because of the limitations of the concept of property.21 Shared
environmental interests, such as biodiversity and the climate, belong to no one and are thus
unprotected by property law. But no reason exists in principle (as opposed to political reasons
or reasons of practicality) why such interests should not come within the scope of property
rights.22 Moreover, even if property regimes do not extend to such interests, private law in
the form of contract law can create obligations to act in particular ways about them regardless
of whether those acts themselves relate to property rights. In addition, to the extent that such
contracts can themselves be securitized, the market can treat them as if they were property
rights. These possibilities have prompted some commentators to claim that we are witnessing
a ‘contractualisation’ of environmental law.23 Two types of contractualization can be identi-
fied: methods that channel self-interested behaviour in pro-environmental directions; and
methods that help altruistically motivated people to fulfil their own pro-environmental goals.
As an example of the former, we might consider cap-and-trade systems such as the
European Union’s Emission Trading System (EU ETS). Cap-and-trade systems work through
20 Note, however, that classification within private law is a notorious source of confusion in comparative
law. For example, what English lawyers think of as the tort of nuisance is classified in some jurisdictions as
a matter of property law and German lawyers think of all legal issues arising out of the negotiation of a con-
tract as part of contract law whereas in most other jurisdictions they can also be matters of tortious or
delictual liability. The best approach is probably not to give too much weight to issues of classification.
21 J. Holder and M. Lee, Environmental Protection, Law and Policy (Cambridge: Cambridge University
Press, 2007), 330; N. Stern, The Economics of Climate Change: The Stern Review (Cambridge: Cambridge
University Press, 2007), 1, 25, and 36.
22 See generally D. Cole, Pollution and Property: Comparing Ownership Institutions for Environmental
Protection (Cambridge: Cambridge University Press, 2002) for a discussion of the practical and political
problems.
23 Y. Jégouzo, ‘L’évolution des instruments du droit de l’environnement’ (2008) 4(127) Pouvoirs 23–33, at 19.
the creation of new property rights, for example rights to emit greenhouse gases, which are
capable of being the subject matter of contracts. The underlying concept is that if one engin-
eers a private value for socially beneficial conduct, people will be more likely to act in that
socially beneficial way. Admittedly, the property rights themselves rest on a base of criminal
law and regulation. Permits to do something previously allowed can only exist if the activity
is first made unlawful, and that unlawfulness is usually created by making the activity itself
a criminal offence unless covered by a permit. But that process is not different in kind from
the creation of other kinds of property. Property rights in objects, for example, are protected
not just by private law remedies but also by criminal offences such as theft and criminal
damage. Indeed, in the modern world criminal law is the primary method for making sure
that property rights are enforceable not just against counter-parties in contracts but against
everyone in the world (‘erga omnes’). Even intellectual property regimes contain criminal
offences.24 One might object that a system of tradable permits is different because the rele-
vant offences can be committed by the owners themselves, and not exclusively by those who
interfere in the owners’ property, but that would be to miss the point that those who emit
greenhouse gases without sufficient permits are interfering in the rights of others who hold
permits. It is as if they are using other permit holders’ rights without their permission.
Different legal systems, however, approach the creation of trading schemes in subtly dif-
ferent ways. Indeed the differences between legal systems in the EU was acknowledged in
the Directive setting up the EU ETS.25 The detailed implementation of the system was left
to the Member States’ own legal systems, subject to the requirement that each Member State
must provide for equal treatment of permits created in other Member States.
Differences include how particular systems create property rights that exist only for a certain
length of time and which in some circumstances are defeasible by administrative action. The
latter is particularly challenging because it produces the possibility of public law litigation
alongside and possibly in conflict with basic provisions of private law.26 In France, for example,
the Conseil d’Etat has decided that the public authority has extensive powers to revoke ETS
permits issued as a result of a mistake by an operator,27 but that raises the issue of what happens
in private law if the operator had sold some of its permits to a third party and of the public law
consequences if the third party suffers a loss. More generally, in systems such as the French,
which draw strong distinctions between public and private property, the former being to some
extent inalienable, explicit provision is required to ensure tradability.28
Another challenge for the EU ETS has been divergences between Member States about
whether allowances are to be treated as ‘goods’ or not.29 The French Code de l’environnement
24 See e.g. L. Bently and B. Sherman, Intellectual Property Law (Oxford: Oxford University Press, 4th
edn. 2014), 1263–9; C. Geiger (ed.), Criminal Enforcement of Intellectual Property (Cheltenham: Edward
Elgar, 2012).
25 M. Wemaere, C. Streck, and T. Chagas, ‘Legal Ownership and Nature of Kyoto Units and EU
Allowances in Freestone’ in D. Freestone and C. Streck, Legal Aspects of Carbon Trading: Kyoto, Copenhagen,
and Beyond (Oxford: Oxford University Press, 2009), 35–58, 49–51.
26 Jégouzo, ‘L’évolution des instruments du droit de l’environnement’; F.-G. Trebulle, ‘Les titres envi-
ronnementaux’ (2011) 36(2) Revue juridique de l’environnement 203–26.
27 Société Smurfit Kappa Papier Conseil d’Etat, 17 February 2016.
28 See e.g. Art. L229-15 French Code de l’environnement.
29 Wemaere, Streck, and Chagas, Legal Ownership and Nature of Kyoto Units and EU Allowances in
Freestone, at 49–51.
1098 david howarth
declares that ETS permits are ‘biens meubles’ but that is not the case in other jurisdictions.
The UK legislation, the Greenhouse Gas Emissions Trading Scheme Regulations 2012, is char-
acteristically silent, since British legislation usually strives as far as possible to avoid matters of
legal classification, but the courts have slipped easily into treating allowances as legitimate
objects of ordinary contract law.30 The Markets in Financial Instruments Directive 2014
(MiFID II) treats all contracts in EU ETS allowances, including spot contracts, as financial
instruments and thus subject to the relevant regulatory regime, albeit with some relaxation of
its requirements for operators of relevant installations as opposed to traders in permits.
In the United States, because of concerns about triggering constitutional doctrines about
expropriation, legislation creating emissions trading systems has tended to say that permits
are not to be treated as property but nevertheless that they can be possessed and transferred.31
The apparent contradictions in this position serve only to reinforce the point that legisla-
tures are at liberty to abuse the basic concepts of private law if that is what they want to do
in the pursuit of their policy goals.
Turning to the latter type of ‘contractualisation’, giving greater effect to altruistic action,
one might point to the example of ‘conservation covenants’.32 The idea is that covenants or
easements on land can be used to promote conservation, for example to preserve biodiversity.
The owner accepts restrictions in the interests of conservation on what the owner can do on
the land, restrictions enforceable by another party, for example a non-governmental organ-
ization (NGO) with an interest in conservation or an individual philanthropist. Crucially
the obligation ‘runs with the land’, in the sense that it is enforceable not just as a contract
between the original parties but also against any future owner of the land. In many legal
systems, such covenants face the difficulty that only obligations that benefit neighbouring
land are permitted to ‘run with the land’, so severely limiting the circumstances in which
they work.33 But in several jurisdictions in the United States, and in Scotland, legislatures
have intervened to make such covenants possible even in the absence of benefit to neigh-
bouring land.34 Furthermore, the Law Commission for England and Wales has recommended
the adoption of a similar rule in that jurisdiction.35
48.3.1.2 Private Legal Actions in Respect

of Environmental Harm
The second way in which private law can act as environmental law is by granting rights to
prevent or to demand compensation for environmental damage. This is the domain not so
30 Deutsche Bank AG v Total Global Steel Ltd [2012] EWHC 1201 (Comm); Ineos Manufacturing
Scotland Ltd v Grangemouth CHP Ltd [2011] EWHC 163 (Comm).
31 Wemaere, Streck, and Chagas, Legal Ownership and Nature of Kyoto Units and EU Allowances in
Freestone’, at 52–5.
32 Law Commission, Conservation Covenants (London: TSO, 2014); C. Reid, ‘Conservation Covenants’
(2013) 77(3) Conveyancer and Property Lawyer 176–85; C. Reid and W. Nsoh, ‘Whose Legal System Is It
Anyway?’ (2014) 5(2) Journal of Human Rights and the Environment 112–35.
33 J. Gordley and A. von Mehren, An Introduction to the Comparative Study of Private Law (Cambridge:
Cambridge University Press, 2006), 198.
34 Reid, Conservation Covenants’; G. Korngold, ‘Globalizing Conservation Easements: Private law
Approaches for International Environmental Protection’ (2011) 28(4) Wisconsin International Law
Journal 585–638.
35 Law Commission, Conservation Covenants.
much of contract law as of tort or delict (or in some jurisdictions property law). The paradigm
example is the law of nuisance or troubles anormaux de voisinage, under which claimants
have under certain conditions a right to stop activities by others that degrade their environ-
ment. But claimants might also be able to establish liability on the basis of more general
principles, for example the principle found in many legal systems that claimants can recover
compensation from anyone who harms them intentionally or by negligence, a principle rec-
ognized to a greater or lesser degree by, for example, Articles 1240 and 1241 (previously 1382
and 1383) of the French Civil Code, § 823 of the German BGB, and the English and American
tort of negligence. In addition, some legal systems provide for strict liability for damage caused
by things under the control of the defendant, for example Article 1242 (previously 1384) of
the French Civil Code and the US (though not the English) interpretation of the ‘Rule in
Rylands v Fletcher’ as establishing strict liability for ‘inherently dangerous (or ultrazardous)
activity’.36 German law also provides for a form of strict liability but by specific statutory
provision rather than in the general law, including the Environmental Liability Act of 1990,
which I here classify as ‘Environmental Law in Private Law’ rather than ‘Private Law as
Environmental Law’.
The degree to which these legal rules facilitate environmental protection through private
law litigation depends on a number of factors, which themselves vary across legal systems.37
They include: (1) who can sue; (2) who can be sued; (3) what forms of damage are actionable;
(4) what are the conditions of liability; (5) how causation can be established; and (6) what
remedies are available?
4 8.3.1.2.1 Who Can Sue
On who can sue, systems impose very few restrictions in their general fault-based delicts
apart from the requirement that claimants have to have suffered actionable damage, but in
nuisance and its equivalents one can find a very wide range of rules. At one end, in Sweden
no restriction exists, since the Swedish system in principle gives everyone a right to sue for
violations of the Environmental Code.38 At the other end, in Dutch law, only owners of land
appear to be protected, a position also reflected in the wording of the German BGB § 906,
although that provision is usually interpreted as additionally covering those with possessory
interests.39 The German position is similar to that in England, where possessory interests
are required in private nuisance, although that also includes interests such as easements that
would not count universally as possessory.40 Beneficiaries of easements are protected in
other systems, for example in Catalonia.41 English law does not, however, protect contractual
36 Restatement (Second) of Torts, § 520.

37 See e.g. G. Kaminskaitė-Salters, Constructing a Private Climate Change Lawsuit Under English Law:
A Comparative Perspective (Alphen aan den Rijn: Kluwer, 2010); M. Faure and M. Peeters (eds.), Climate
Change Liability (Cheltenham: Edward Elgar, 2011).
38 G. Brüggemeier, A. Colombi Ciacchi, and G. Comandé, Fundamental Rights and Private Law in the
European Union: Comparative Analyses of Selected Case Patterns (Cambridge: Cambridge University
Press, 2010), 331.
39 S. M. Santisteban and P. Sparkes, Protection of Immovables in European Legal Systems (Cambridge:
Cambridge University Press, 2015), 448, 454.
40 M. Jones, A. Dugdale, and M. Simpson, Clerk and Lindsell on Torts (London: Sweet and Maxwell,
21st edn. 2014), sections 20:63–20:69.
41 Martin Santisteban and Sparkes, Protection of Immovables in European Legal Systems, at 461.
1100 david howarth
licensees,42 whereas Czech and French law does extend to contractual licensees.43 French
law even protects building contractors.44
4 8.3.1.2.2 Who Can Be Sued
On who can be sued, the position is similar. In the general fault-based torts, one normally
finds no limitation, but in the nuisance/troubles anormaux de voisinage torts wide variation
appears. In Sweden, in effect any violator of the Environmental Code is a potential defendant.45
In England the law is unclear, but the better view is that, as in Sweden, no limitation exists:
anyone who causes a nuisance is liable for it regardless of their own status as a landowner.46
In France the same rule seems to apply,47 being implied in the principle announced by the
courts as governing the cases: ‘nul ne doit causer à autrui un trouble anormal de voisinage’.48
In many systems, however, including the Dutch and the Italian, liability arises from the idea
that a property owner is abusing his or her rights, and so liability is confined to owners of
the land from which the nuisance emanates.49 Systems also vary in the extent to which they
recognize secondary liability. For example, in systems in which any person who causes the
damage is liable, another question that arises is whether a person who contracts for the
damage-causing activity to be done is also liable. Similarly systems vary about whether
landlords are liable for the trouble caused by their tenants.50 A related but more general issue
on which jurisdictions vary is the question of when, in cases in which multiple defendants
might be liable, each defendant can be held liable with respect to the whole loss, regardless
of considerations of relative contributions to the loss, the issue of joint and several liability.51
48.3.1.2.2.1 Suing the State Particular problems arise in using private law to sue
the state. Although absolute prohibitions on using private law against the state, still the
situation in French law, are not as common as they were, many jurisdictions still make suing
the state more difficult than suing private parties. Although much confusion surrounds the
issue, state defendants in England, for example, have frequently succeeded in persuading
42 Hunter v Canary Wharf Ltd [1997] UKHL 14; [1997] AC 655; [1997] 2 All ER 426.
43 Martin Santisteban and Sparkes Protection of Immovables in European Legal Systems, at 440, 446.
44 Ibid., at 446. 45 Swedish Environment Code, Chapter 32, ss. 6 and 7.
46 Jones, Dugdale, and Simpson, Clerk and Lindsell, at section 20:70.
47 G. Godfrin, ‘Trouble de voisinage et responsabilité environnementale’ (2009) 54 Annales des Mines—
Responsabilité et environnement 16–22.
48 X Cass. Civ. 2e. 19 November 1986 (84-16379).
49 Martin Santisteban and Sparkes, Protection of Immovables in European Legal Systems. French law
originally based its equivalent of nuisance on the idea of abuse of property rights but has now moved
beyond that theory. The place of abuse of right in English law is notoriously controversial. It is not a good
idea to suggest to an English court that it forms part of English law: VTB Capital plc v Nutritek International
Corpn [2013] UKSC 5; [2013] 2 A.C. 337 at [144]; but many have tried to incorporate it: see e.g. Hubbard
v Pitt [1976] 1 QB 142 at 175 per Lord Denning MR and J. W. Neyers, ‘Explaining the Inexplicable? Four
Manifestations of Abuse of Rights in English Law’ in Nolan and Robertson (eds.), Rights and Private
Law, at 309–30.
50 Martin Santisteban and Sparkes, Protection of Immovables in European Legal Systems; V. Wester-
Ouisse, ‘Responsabilité pour troubles anormaux: le modèle d’une responsabilité fondée sur le dommage’
(2007) 32(119) Revue de la recherche juridique, droit prospectif 1219–34; Jones, Dugdale, and Simpson,
Clerk and Lindsell, at sections 20.71–20-84; Lawrence v Fen Tigers Ltd (No 2) [2014] UKSC 46; [2015] AC 106.
51 H. Koziol, Basic Questions of Tort Law from a Comparative Perspective (Vienna: Jan Sramek Verlag,
2015), 774–5.
courts that no private law obligations exist at all where the state is accused of failing to
exercise a discretion to take more action to prevent harm.52 This is especially the case if the
damage flowed from a ‘policy’ decision of the state, one that involves the political weighing
up of the benefits of different allocations of public resources. Similar rules exist elsewhere,
for example in US federal law in which the Federal Tort Claims Act exempts from its scope
the ‘exercise or performance or the failure to exercise or perform a discretionary function
or duty’.53 In addition, US law, both state and federal, operates under a broad ‘political
question’ doctrine that immunizes on constitutional grounds controversial policy decisions,
for example those affecting climate change, from private law challenge.54
4 8.3.1.2.3 Actionable Damage
Those sceptical of the utility of private law as environmental law often point to the third factor,
actionable forms of damage, to bolster their case.55 Their argument is that private law liability
systems provide no protection for the environment broadly conceived to cover such matters
as biodiversity and greenhouse gas emissions.56 To some extent, broader environmental inter-
ests can be protected by proxy through the protection of narrower interests, but the problem
is that climate change and reduction of biodiversity are often characterized as threats to the
health or property of people not yet born and only psychologically damaging to those alive
now. Indeed, one motive for creating property and contractual rights in environmental assets,
in the shape of tradeable emissions permits for example, is precisely that many private law
systems take a narrow view of the types of damage recognized by tort law. No such limits exist
for the interests protected by contract law as long as the interests are lawful.
It is indeed the case that even in the most generous regime in terms of standing to sue,
namely Sweden, individual victims may only seek compensation for ‘bodily injury, material
damage and pecuniary loss’.57 German and English law both limit recovery even in their
general fault-based torts to specific forms of loss, although German law, in recognizing the
right to a continuing business is more generous than English law in its treatment of pure
economic loss and is clearer in its protection of personal freedom.58 The degree of recognition
of psychological harm also varies, from some US states in which any kind of mental distress
is potentially actionable to the somewhat incoherent hostility to ‘secondary’ psychiatric
damage in England.59
52 See Jones, Dugdale, and Simpson, Clerk and Lindsell, at sections 14–03 to 14–15.
53 28 USCA s. 2680(a).
54 E. Kosoplova, ‘Liability for Climate Change-related Damage in Domestic Courts: Claims for
Compensation in the USA’ in Faure and Peeters, (eds.), Climate Change Liability, at 189–20.
55 e.g. Holder and Lee, Environmental Protection, Law and Policy, at 329–33; Bell, McGillivray, and
Pedersen, Environmental Law, at 381 and 385.
56 D. Howarth, ‘Muddying the Waters: Tort Law and the Environment’ (2002) 41(3) Washburn Law
Journal 469–513.
57 Swedish Environment Code Chapter 32, s. 1.
58 D. Howarth, ‘The General Conditions of Unlawfulness’ in A. Hartkamp, M. Hesselink, E. Hondius,
C. Mak, and C. du Perron (eds.), Towards a European Civil Code (Alphen aan den Rijn: Wolters Kluwer/
Ars Aequi Libri, 4th edn. 2011), 845–85; D. Howarth, ‘The Duty of Care’ in K. Oliphant (ed.), The Law of
Tort (London: LexisNexis, 2014), sections 12:123–12:210.
59 Jones, Dugdale, and Simpson, Clerk and Lindsell, at sections 8:69–8:79; Howarth, ‘The Duty of
Care’, at sections 12:130–12:172.
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In the more specific nuisance tort, English law is even more restrictive, excluding all
liability for personal injury and interruption of pleasant vistas.60 Liability for interference in
other matters, for example light, can only be established if the claimant has established a
specific property right to those amenities.61 English law also denies protection for the flow
of air in the form of breezes and the wind,62 so that in English law the operator of a wind
farm would have no action against a neighbour whose activities interfered with the flow of
air to the wind turbines. Other systems, however, provide for the protection a long list of
amenities and may even include an eiusdem generis clause to deal with amenities the legis-
lator has forgotten to mention, as in the Swedish Environment Code,63 although it is not clear
whether the eiusdem generis clause would protect the flow of wind to wind farms.
4 8.3.1.2.4 C onditions of Liabilit y
The heart of a private law action is the liability rule itself: in what circumstances is the
defendant’s conduct to be treated as actionable? The most common rule in the general torts
and often used in more specific torts is an objective fault rule, namely that a reasonable per-
son in the position of the defendant would have acted differently. The US courts have broken
down the standard into three factors in a way that has influenced many other systems:
The degree of care demanded of a person by an occasion is the resultant of three factors: the
likelihood that his conduct will injure others, taken with the seriousness of the injury if it
happens, and balanced against the interest which he must sacrifice to avoid the risk.64
English and German law are roughly on that same page,65 although German lawyers seem
to find objective standards of fault difficult to understand and to think of ‘fault’ as some-
thing at least residually subjective.66 In addition, English law adds a rider that some risks are
so low in comparison with the benefits of taking them that the courts believe that they should
not bother to ask how onerous it would have been to take further preventive measures.67
48.3.1.2.4.1 Other Possible Variants on Fault In principle, the elements of
the standard approach to fault could be varied,68 and as a consequence environmental
actions might be made easier for claimants. A systematic approach to that variation would
note that one could (1) replace the foreseeability requirement for any of the elements with a
test that in effect asks whether it would be reasonable for the defendant to act in the same
way now, in the light of what we have learned since the accident, a rule that was indeed
60 Hunter v Canary Wharf Ltd [1997] UKHL 14; [1997] AC 655; [1997] 2 All ER 426.
62 Webb v Bird (1863) 13 CRNS 841, 143 ER 332.
64 Conway v O’Brien 111 F.2d 611 (1940), at 612 per Learned Hand J.
65 H. Kerkmeester and L. Visscher, ‘Learned Hand in Europe: a Study in the Comparative Law and
Economics of Negligence’ (Berkeley C.A.: German Working Papers in Law, 2006).
66 H. Koziol, Basic Questions of Tort Law from a Germanic Perspective (Vienna: Jan Sramek Verlag,
2012), 200; Koziol, Basic Questions of Tort Law from a Comparative Perspective, at 783.
67 Bolton v Stone [1951] AC 850.
68 See G. Calabresi and A. Klevorick, ‘Four Tests for Liability in Torts’ (1985) 14 Journal of Legal Studies
585–627.
proposed at one time in the United States in some product liability cases;69 (2) burdens of
proof on any or all of the elements of the test could be reversed so that they lie on the
defendant rather than the claimant, as in liability in French law for hospital-acquired
infections;70 and (3) more relevant in actions against private parties than actions against the
state, the onerousness of further precautions could be limited to the costs of taking further
precautions for actors other than the defendant, eliminating any purely private cost for the
defendant, which is at least a plausible account of how a ‘risk-benefit’ test might work in the
definition of ‘defect’ in the EU Product Liability Directive.71
48.3.1.2.4.2 Strict Liability Going even further are the strict liability rules to be
found in, for example, Article 1242 (ex 1384) of the French Civil Code and the US
‘ultrahazardous activity’ doctrine, which hold those who control ‘things’ (or in the case of
the US rule, inherently dangerous things) liable without proof of fault for the damage those
‘things’ cause. Japan also seems to follow the rule that dangerousness implies strict liability.72
The French rule, whose scope is notoriously wide, has been used in an environmental
context to impose strict liability, for example, on a brewery for contaminating a town’s
water supply with waste released in the course of demolishing a building.73 The scope of the
US rule is much narrower, being often interpreted as applying only to activities that cannot
be carried on safely regardless of the defendant’s degree of care and as not applying to any
activity that is ‘normal’ in the purely factual sense of widespread. Nevertheless the rule has
been used successfully in cases of radioactive emissions.74 The US courts trace their rule
back to the English case Rylands v Fletcher,75 in which the owner of a reservoir serving a
factory was held liable without proof of fault for the property damage caused when water
from the reservoir invaded the underground shafts of the claimant’s mine. The court,
reflecting, perhaps unconsciously, the replacement of a rural society by an industrial one,
reasoned from an analogy with cattle trespass—that just as the owners of cattle are strictly
liable for the damage their animals cause if they wander onto other people’s land, so factory
owners should be strictly liable if their materials wander and cause damage.76 In England,
however, the rule in Rylands v Fletcher never became a general rule of strict liability for
dangerous activities and is increasingly treated as merely a sub-species of private nuisance
dealing with one-off events as opposed to continuing activities.77 The Australian courts,
further illustrating the diversity of the common law world, have rejected Rylands v Fletcher
in its entirety.78 In Germany, strict liability for dangerousness is not a principle of general
69 Barker v Lull Eng’g Co 20 Cal. 3d 413 (1978); Beshada v. Johns-Manville Prods. Corp. 90 N.J. 191 (1982).
70 Société la clinique Bouchard Cass. Civ. 1re, 21 May 1996.
71 This view is a possible compromise between the contradictory views of English judges interpreting
Council Directive 85/374/EEC of 25 July 1985, Art. 6 in Wilkes v Depuy International Limited [2016]
EWHC 3096 (QB) and A v National Blood Authority [2001] 3 All ER 289.
72 K. Yamamoto, ‘Basic Questions of Tort Law from a Japanese Perspective’ in Koziol, Basic Questions
of Tort Law from a Comparative Perspective, at 515–681, 636.
73 C. Van Dam, European Tort Law (Oxford: Oxford University Press, 2013), 449.
74 C. Bell, D. Case, and W. Brownell, Environmental Law Handbook (Plymouth: Government
Institutes, 2011).
75 (1865–66) L.R. 1 Ex. 265, (1868) L.R. 3 H.L. 330.
76 Fletcher v Rylands (1865–66) L.R. 1 Ex. 265, 280–5 per Blackburn LJ.
77 Jones, Dugdale, and Simpson, Clerk and Lindsell, at sections 20:44–20:46.
78 Ibid., at section 20:46.
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tort law but it does appear in specific statutes, including the Environmental Liability Act of
1990.79
48.3.1.2.4.3 Special Rules in Nuisance/Troubles Anormaux In the nuisance
or troubles anormaux torts, the liability rule tends to be stricter than in the general fault torts.
The approach taken by most systems is to ask whether the degree of interference is beyond
that which a reasonable person in the position of the claimant should be expected to
tolerate,80 an approach that comes to the question of liability from the point of view of the
claimant rather than from that of the defendant. Applying this tolerance approach usually
includes considering the intensity, timing and duration of interference and, crucially the type
of neighbourhood involved81—in the words of a nineteenth-century English court, referring
to areas of London that are still very different, ‘What would be a nuisance in Belgrave Square
would not necessarily be so in Bermondsey’.82 Some systems, particularly the Swedish and the
German systems, assess levels of reasonable toleration by applying regulatory standards.
Others, for example the English system, use regulatory standards merely as guides. Most
systems employ a ‘hypersensitive claimant’ rule, under which an interference does not
become unreasonable just because of unusual vulnerabilities of the claimant.83 Interestingly,
systems seem to adopt the reasonable tolerance approach whether they come to the problem
as a matter of the law of obligations or as a matter of the law of property.
Some systems use a more defendant-centred fault-like standard at least for some purposes—
for example English law uses a slightly modified fault standard when the damage was caused
by a third party or by natural causes on the defendant’s land,84 and Spanish law, outside
Catalonia, has no specific nuisance action and so applies the standards of the general torts.85
Some systems make a distinction between physical encroachment on and damage to land,
in which liability is close to absolute with very few excuses or defences available, and annoy-
ances that do not involve physical encroachment or damage, in which the tolerance rule
applies.86 In England, for example, nuisance including an element of physical encroach-
ment cannot be justified by the nature of the neighbourhood.87 It is worth mentioning,
however, that nuisance by encroachment is difficult to distinguish from trespass to land, at
least without referring back to historical distinctions between types of action that have no
modern resonance or use. As ever, English law suffers from its lack of a straightforward
vindicatio,88 and has produced an excess of substitutes for it.
79 Koziol, Basic Questions of Tort Law from a Germanic Perspective, at 230–2; T. Lundmark, ‘Systemizing
Environmental Law on a German Model’ (1998) 7 (Winter) Dickinson Journal of Environmental Law &
Policy 1–47.
80 Martin Santisteban and Sparkes, Protection of Immovables in European Legal Systems, at 465;
Yamamoto, ‘Basic Questions of Tort Law from a Japanese Perspective’, at 607.
82 Sturges v Bridgman (1879) 11 Ch. D. 852, 865 per Thesiger LJ.
84 Sedleigh-Denfield v O’Callaghan [1940] AC 880; Goldman v Hargrave [1967] 1 AC 645; Ward v Coope
[2015] EWCA Civ 30; Jones, Dugdale, and Simpson, Clerk and Lindsell, at section 20–2.
86 Ibid., at 456. 87 Jones, Dugdale, and Simpson, Clerk and Lindsell, at section 20:08.
88 P. Sparkes, ‘Declarations of Title: 1883 and All That’ (2016) 80(2) Conveyancer and Property Lawyer
118–37.
The defendant’s conduct is not strictly relevant in a tolerance standard, since the
determinative issue is the degree of interference from the claimant’s point of view. But it
might become relevant at least indirectly in systems that recognise a ‘reciprocity’ or ‘normal
behaviour’ rule. English law is such a system.89 A reciprocity rule says that no one can sue for
interference at a level they would want themselves to be allowed to make. A normal behaviour
rule is that no one can sue for activities considered normal by reasonable people, the under-
lying thought being that a reasonable person in the position of the claimant would not object
to a neighbour pursuing reasonable objectives in a reasonable way. These rules, especially in
their objective form, allow courts to compare the interests of the parties. They also provide a
functional equivalent to the concept of abuse of right in those systems that lack such a concept.
If the defendant targets the claimant maliciously, for no good reason, a reasonable person in the
position of the claimant would give no weight to the defendant’s purposes.
One challenge the tolerance standard faces in the environmental law context is that it
might fail to lead to liability in cases of cumulative effects over large populations and over
long periods of time. It is possible to envisage situations in which the degree of interference
for each individual claimant might be small enough to be tolerable but the long term cumu-
lative effect on, for example, biodiversity or climate might be very great.
48.3.1.2.4.4 Private Law Liability Rules and the Polluter-Pays Principle
Some commentators believe that all the liability rules in use in private law, with the
possible exception of strict liability under Article 1242 of the French Civil Code and its
equivalents, are inadequate as environmental law because they fail to respect the polluter-pays
principle.90 The basic point they make is that both fault-based liability and tolerance-
based liability allow polluters to escape having to pay. That seems difficult to deny in the
case of fault-based liability in its classic ex ante form, since under that rule polluters do not
pay for pollution where the cost of avoiding it would have seemed too high at the time,
regardless of how matters turned out. In the case of tolerance-based liability, however,
one might counter that the defendant’s argument is not that the pollution was justified at
the time but that, according to the standards of the society concerned, what has taken
place should not count as ‘pollution’ and so the defendant is not a ‘polluter’. That arguably
remains so even if we admit arguments based on reciprocity or normal behaviour, since
the position is still that interferences are allowed if they have social support.
4 8.3.1.2.5 Causation
Claimants in private law tort actions invariably need to prove that a causal link can be made
between the damage they have suffered and the defendant. Causation is two issues rather
than one, although some systems run the two together. The first issue (often called ‘factual
causation’) is whether one can identify a factual link between the damage and the defend-
ant’s actions, for which the usual starting point is whether the harm would have happened
but for the defendant’s tort.91 The second (often called ‘legal causation’), which is possibly
better analysed under recognized damage or conditions of liability, is whether the defendant
89 R. Burnett-Hall and B. Jones, Environmental Law (London: Sweet and Maxwell, 2012), sections
6:013–6:019.
90 e.g. G. Cross, ‘Does Only the Careless Polluter Pay? A Fresh Examination of the Nature of Private
Nuisance’ (1995) 111 Law Quarterly Review 445–74.
91 Koziol, Basic Questions of Tort Law from a Comparative Perspective, at 773.
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should take responsibility for a specific consequence. Both issues are relevant in both the
general fault-based torts and the nuisance/troubles anormaux torts.
48.3.1.2.5.1 Factual Causation The factual link issue is one of those parts of the
law that works better in practice than in theory. In theory it is full of problems and puzzles,
most of which arise out of the difficulty of understanding causation of a particular event in
a particular case without specifying a counterfactual, that is without mentally varying some
aspect of the sequence of events as they actually happened and asking what would have
happened in those different circumstances.92 In fault-based torts it is tolerably straightforward
to specify the counterfactual. The claimant normally has to show that if the defendant had
acted properly, that is if the defendant had reached the required standard of behaviour, the
claimant would not have suffered the damage.93 Although several ways of meeting the
standard might exist, the defendant is not required to have gone beyond minimal compliance
and so the ‘lawful alternative’ used in analysis is usually the one least onerous for the
defendant. In the case of strict liability, however, although often treated as self-evident, the
concept of factual causation is theoretically rather unclear, since it is not obvious which
counterfactual one should choose. Is it what would happened if the defendant had done
nothing, or if the defendant had done something else, and if the latter, which something
else? Doing nothing is not necessarily the least burdensome option for the defendant since
the defendant will often have engaged in the activity as part of a profit-making business.
Factual causation under the tolerance rule is also not entirely clear. If one asks what would
have happened had the defendant acted properly one immediately undermines the claimant-
centred nature of the test. But if one starts with the point of view of the claimant it is not
clear which counterfactual one should choose. In practice, however, both in strict liability
versions of the general tort and in nuisance/troubles de voisinage the counterfactual chosen,
or perhaps merely presupposed, is that the defendant did not engage in any activity at all.
But even ignoring the issue of which counterfactual to choose, factual causation creates
other obstacles for claimants. Typically environmental problems involve multiple potential
polluters and multiple potential victims. It is often difficult for individual claimants to
show that the damage they suffered was caused by the actions or activities of specific
defendants. A further complication comes if a certain degree of pollution is considered
acceptable, which might allow some or even all polluters to claim that taken by itself their
particular contribution would have been insufficient for the threshold to have been
crossed. Another argument arises in cases in which the threshold would have been crossed
by the individual contributions of more than one polluter by themselves, allowing each of
them to claim that actionable damage would have occurred anyway even if they had not
made their own contribution.
Systems vary in their response to these difficulties. Some offer claimants very little help,
at least in the general torts, although some of those systems, such as the German, offer help
instead through ‘environmental law in private law’, for example by creating a presumption
of causation where individuals sue for compensation arising out of breaches of specific
92 D. Lewis, ‘Causation’ (1973) 77(17) Journal of Philosophy 556–67; D. Lewis, ‘Causation as Influence’
(2000) 97(4) Journal of Philosophy 182–97.
93 K. Grechenig and A. Stremitzer, ‘Der Einwand rechtmäßigen Alternativverhaltens—Rechtsvergleich,
ökonomische Analyse und Implikationen für die Proportionalhaftung’ (2009) 73(2) Rabels Zeitschrift
fuer ausländisches und internationales Privatrecht 336–71.
protective statutes such as the Environmental Liability Act.94 Other systems offer a great
deal of help in the general law. French law, for example, in addition to creating a legal pre-
sumption of causality where the defendant has committed a criminal offence, has a concept of
collective fault for situations in which the same damage is caused by more than one defendant,
allowing the claimant to sue any of the group without having to identify all of the possible
defendants.95 Moreover, the Cour de cassation decided that in a situation where one of
two defendants must have caused the damage but it was not clear which one, each was
liable unless it could prove it was not the cause,96 a solution similar to that developed in
North America.97 Even the English courts have held that where, because of the existence of
multiple possible causes, it is inherently impossible for the claimant to establish causation
with regard to one defendant, the claimant is allowed to show merely that the defendant was
at fault and that fault of that type materially increases the risk of the harm occurring.98 In
the United States courts in some states have created a form of liability in which defendants
who each have contributed to a risk by manufacturing a dangerous product that harmed a
large number of claimants but where the market share of each was less than 50 per cent, so
that one could not say that it was more probable than not that any of the defendants caused
the harm, the defendants should all be held liable in proportion to their market share.99
Specifically for the nuisance tort, the English courts have long applied a rule that if more
than one person contributes to creating a nuisance, all are liable, even if the degree of inter-
ference created by each of them would not have amounted to a nuisance.100 In addition the
French courts have taken the lead in solving causation problems by recognizing a lost
chance of avoiding recognized damage as itself a recoverable form of damage.101
48.3.1.2.5.2 Legal Causation Turning to the second aspect of causation, the
attribution of responsibility, the standard issue is whether, in particular in the light of
other causes of the harm, to limit the legal responsibility of a defendant whose actions
or activities admittedly caused harm in a factual sense. A common limitation is to restrict
responsibility to ‘foreseeable’ consequences of the defendant’s actions or activities,102
but systems tend to ignore the foreseeability criterion where the harm was unforeseeable
only in extent rather than in kind and where the reason for the lack of foreseeability
was an unusual weakness or vulnerability in the claimant (the ‘eggshell skull’ rule or
the rule that defendants must take claimants as they find them).103 Many systems also
ignore the foreseeability limitation where the defendant is guilty of intentional harm,
adopting the rule that intended consequences are never too remote. Some systems find
defendants liable where they have created a risk that someone else might harm the
claimant even where the defendant is not responsible for the acts of the third party on
some other ground, for example where the defendant is the third party’s employer. On the
94 Van Dam, European Tort Law, at 324–5. 95 Ibid., at 325–8.
96 Litzinger Cass. Civ. 2e, 5 June 1957; Van Dam, European Tort Law, at 331–4.
97 Summers v Tice 33 Cal.2d 80 (1948); Cook v Lewis [1951] SCR 830; [1952] 1 DLR 1.
98 Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22.
99 Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588 (1980).
100 Pride of Derby & Derbyshire Angling Association Ltd v British Celanese Ltd [1952] 1 All ER 1326.
101 Van Dam, European Tort Law, at 337–9. 102 Ibid., at 342–3.
103 See P. Pierre and F. Leduc, La Réparation Intégrale en Europe: Études comparatives des droits natio-
naux (Brussels: Larcier, 2012).
1108 david howarth
other hand, other systems exonerate defendants where the third party’s intervention
deliberately and wrongfully took advantage of the situation created by the defendant even
where the intervention was foreseeable.104
The foreseeability restriction is particularly controversial in nuisance or troubles anormaux
torts. Given the tolerance rule, it is not at all clear why the foreseeability of damage from the
point of view of the defendant should be relevant. The test is whether the degree of inter-
ference as it turned out to affect the claimant is one a reasonable person in the position of
the claimant would tolerate, not whether a reasonable person in the position of the defend-
ant would have started the activity in the first place. Nevertheless some systems insist on
foreseeability.105 As a purely practical matter, however, since in most nuisance or troubles
anormaux cases the matter has only reached the courts because the defendant has refused
to stop the activity even after the claimant has complained about it, any foreseeability require-
ment will automatically have been fulfilled.
4 8.3.1.2.6 Remedies
In most systems successful claimants can obtain a court order, enforceable by penal measures,
that the offending activity should cease or at least be reduced to the tolerance level, together
with monetary compensation for recognized damage caused before the activity stops.106 In
some systems an injunction or court order is the primary remedy and claims for damages
need to be filed separately under separate tort theories that may or may not succeed even if
the action for an injunction has succeeded.107 In contrast, in England the action for damages
is primary and the injunction remedy discretionary. Until 2014, however, the injunction
was treated as almost automatic. Since then English law has joined Germany and many US
states in saying that injunctions can be refused if the public interest requires.108 A similar
though lesser effect arises if the court suspends the injunction until the defendant no longer
needs to continue the nuisance-causing activity.109
These possibilities of refusing or suspending injunctions in turn raise a further question
of how the level of compensation should be affected by the refusal or suspension of the
injunction, since damages in respect of the future are a very different matter from damages
in respect of the past. In effect, the defendant is being allowed to expropriate the claimant’s
interest and so should be required to buy out that interest at a reasonable price set by the
court. In Sweden, the law takes this thought to its logical conclusion and provides that victims
of nuisances that render properties ‘unprofitable to the owner, wholly or in part, or great
detriment arises in connection with its use’ are entitled to require the defendant to buy out
their interest at a value set by the statute on expropriation.110 Another possibility, much dis-
cussed in the economic literature, is that instead of the court refusing an injunction and
104 Topp v London Country Bus (South West) Ltd [1993] 1 WLR 976; [1993] 3 All ER 448; Howarth, ‘The
Duty of Care’, at section 12:45.
106 Martin Santisteban and Sparkes, Protection of Immovables in European Legal Systems, at 465–6.
107 Ibid., at 466.
108 Lawrence v Fen Tigers Ltd (No. 1) [2014] UKSC 13; [2014] AC 822; D. Howarth, ‘Noise and Nuisance’
(2014) 73(2) Cambridge Law Journal 247–50; Lundmark, ‘Systemizing Environmental Law on a German
Model’; Boomer v Atlantic Cement Company, Inc 26 N.Y.2d 219 (1970).
109 Pontin, Nuisance Law and Environmental Protection.
ordering ‘permanent’ damages, the court grants the injunction but requires the claimant to
make an off-setting payment to the defendant, to recompense the defendant for having to
cease an otherwise beneficial activity.111
4 8.3.1.2.7 Particul ar Problems of Climate Change Litigation
Although the utility of tort/delictual liability for environmental protection purposes varies
with the choices a system makes on each of the elements of liability, a consensus was growing
that, despite some initial optimism,112 delictual liability was not well-suited to litigating long-
term problems such as climate change. US-based litigation, for example, eventually failed
through a combination of problems around the immunity of state bodies and causation, in
particular claimants having to show that they have suffered damage that would not have
happened had the specific defendant acted differently in a specific way.113 A degree of opti-
mism was, however, restored by the Urgenda litigation in the Netherlands.114
The Urgenda Foundation, an environmental NGO, brought successful proceedings in the
Dutch civil courts alleging that the Netherlands government’s climate change policy amounted
to a tort under Article 6:162 of the Dutch Civil Code. Article 6:162 declares tortious ‘an act
or omission in violation of a duty imposed by law or of what according to unwritten law has
to be regarded as proper social conduct’, a standard interpreted by the Dutch courts in way
that has yielded conditions of liability very close to the standard US three-part analysis.115
Usefully for claimants, however, the Dutch courts treat the problems of state discretion as a
factor in assessing fault rather than as a separate issue. The claimants overcame the usual
problem of showing that they were suffering recognizable damage that a change in behav-
iour by the defendant would alleviate by arguing that that climate change frustrated their
primary purpose as an association, which was ‘to stimulate and accelerate the transition
processes to a more sustainable society’. That meant that the future effects of climate change
constituted current damage to Urgenda. On appeal the court additionally recognised
Urgenda’s interest as a matter of human rights. On causation the claimants succeeded at
first instance in persuading the court to combine two approaches favourable to claimants:
that all those who contribute to creating unlawful damage should count as having made the
damage unlawful; and that a loss of a chance should count as recognised damage. On appeal
they succeeded on the basis that in Dutch law an applicant for an injunction, as opposed to
a claimant for damages, has to show the existence only of a real risk of the relevant harm.
111 Spur Industries, Inc v. Del E. Webb Development Co 108 Ariz. 178 (1972); Guido Calabresi and
A. D. Melamed, ‘Property Rules, Liability Rules, and Inalienability: One View of the Cathedral’ (1972)
85(6) Harvard Law Review 1089–128.
112 D. Grossman, ‘Warming Up to a Not-So-Radical Idea: Tort-based Climate Change Litigation’
(2003) 28 Columbia Journal of Environmental Law 1–61, but see, for less optimism around the same time,
Howarth, ‘Muddying the Waters’.
113 See e.g. Kosoplova, ‘Liability for Climate Change-related Damage in Domestic Courts’. For a more
positive assessment of this litigation, at least in its broader effects, see J. Peel and H. Osofsky, Climate
Change Litigation (Cambridge: Cambridge University Press, 2015).
114 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; R. Cox, ‘The Decision of the Hague District Court in the Climate
Case Urgenda Foundation v The State of the Netherlands’ (2016) Journal of Planning & Environment
Law 323–41.
115 Kelerluik Hoge Raad, 5 November 1965.
1110 david howarth
48.3.1.3 Refusal to Enforce Environmentally

Damaging Agreements
The third way in which private law can act as environmental law is by refusing to enforce
otherwise enforceable voluntary arrangements, such as contracts or trusts, on the ground
that executing the agreement would have damaging environmental effects. This aspect of
private law as environmental law is as yet more a theoretical possibility than common prac-
tice. Moreover its practical effects might not be clear-cut: sociologists since Weber have
long pointed out that lack of legal enforceability might not deter the making of agreements
between people who have other reasons to trust one another to perform their obligations.116
It is worthwhile, however, to set out how such a legal result might come about.
As the new Article 1162 of the French Code Civil says: ‘Le contrat ne peut déroger à l’ordre
public ni par ses stipulations, ni par son but, que ce dernier ait été connu ou non par toutes
les parties’. Two provisions of the German BGB between them produce a similar effect: § 134
says, ‘Ein Rechtsgeschäft, das gegen ein gesetzliches Verbot verstößt, ist nichtig, wenn sich
nicht aus dem Gesetz ein anderes ergibt’ and § 138(1) says, ‘Ein Rechtsgeschäft, das gegen
die guten Sitten verstößt, ist nichtig’. English law, although in this area notoriously difficult
to apply or even to understand, in principle says something similar: contracts that are illegal
or against public policy are vulnerable to being found either void or unenforceable.117 Similar
rules apply to trusts.118
These provisions raise the question of whether the law can refuse to enforce contracts
whose terms or objectives involve environmental degradation. Contracts to violate specific
environmental standards or statutory rules—for example contracts illegally to dump toxic
waste—would almost certainly fall foul of the rules against illegality or public policy in
most, if not all, jurisdictions. Contracts of insurance under which insurers provide cover
to operators against having to pay fines for violations of environmental law are also likely
to be declared void.119 A wider issue is whether the same result might arise for contracts
whose terms or objectives facilitate damage to biodiversity or to the climate. Compliance
with a specific regulatory scheme, the EU ETS for example, would presumably protect
contracts from illegality or public policy rules, but what about contracts in non-traded
sectors? The coming into force of the Paris Agreement means that it is difficult to deny that
international public policy favours urgent action to reduce greenhouse gas emissions.
Some states have domestic legislation enshrining greenhouse gas emission targets in
law.120 The Urgenda case shows that it is at least possible for courts to hold unlawful a spe-
cific policy trajectory incompatible with avoiding serious damage to the climate. On the
116 M. Weber, Economy and Society, trans. G. Roth and C. Wittich, vol. 1 (Berkeley C.A.: University of
California Press, 1978), 336–7.
117 H. Beale, Chitty on Contracts (London: Sweet and Maxwell, 32nd edn. 2016), sections 16:001–16:002.
118 J. McGhee, Snell’s Equity (London: Sweet and Maxwell, 33rd edn. 2014), sections 22:064–22:066.
119 J. Birds, B. Lynch, and S. Milnes, MacGillivray on Insurance Law (London: Sweet and Maxwell, 13th
edn. 2015), section 14:046.
120 e.g. the UK’s Climate Change Act 2008, Switzerland’s CO2 Act 2013, and France’s Energy Transition
Law 2015. A wide variety of other statutes related to climate change have been passed which take meas-
ures short of instituting formal targets. See the Grantham Institute’s collection at: http://www.lse.ac.uk/
GranthamInstitute/research-theme/governance-and-legislation/ and M. Nachmany, S. Fankhauser,
J. Setzer, and A. Averchenkova, Global Trends in Climate Change Legislation and Litigation: 2017 Update
(London: Grantham Research Institute on Climate Change and the Environment, 2017).
other hand parties threatened with the voiding of their contracts will presumably argue
that, as long as the global or relevant national target for non-traded greenhouse gas emissions
for the period of the contract is greater than the emissions envisioned by the contract, the
contract should not be treated as contrary to public policy or illegal. It would still be pos-
sible, they would argue, to fulfil the obligations both of the general law and of the contract.
But that leads to an interesting problem of cumulative causation: what if the volume of
emissions envisaged by all the contracts in a jurisdiction taken together exceed the rele-
vant limit? Are all the contracts nevertheless valid? What about contracts made in circum-
stances in which the parties knew or should have known that given the volume of emissions
already contracted for the emissions envisaged by their contract would lead to the limit
being exceeded? Moreover, what is the effect of the rule in the new French code ‘que ce
dernier ait été connu ou non par toutes les parties’? In a regime that followed that rule, it
is possible that all the relevant contracts would be void.
One problem with the public policy and illegality doctrines of contract law is that their
invocation is a matter for the parties to the contract rather than for the public authorities. As a
result parties might be reluctant to raise public policy or illegality points if they are parties to
other contracts in which a finding of unenforceability or voidness would be very inconvenient.
On the other hand, in systems in which the state can make private law contracts, for example
in the English system, one can envisage a situation in which, following a change of government,
a state body might look for ways to escape long term contracts in the energy sector formed on
the basis of the previous government’s policy. This scenario is particularly enticing in jurisdic-
tions that treat binding the government’s ability to make policy changes in areas of vital national
interest as itself a potential ground for radically re-construing or voiding its contracts.121
One question that would arise out of the voiding of energy contracts following a change
of government is whether the operators would be entitled to compensation. Systems that
treat contracts under public law differently from private law contracts often compensate
contractors where the contract is affected by changes in policy,122 but the position in juris-
dictions in which the state makes only private law contracts might be different. A question
of classification might also be relevant: is the reason the state can change the contract a
matter of contractual interpretation, illegality, or lack of contracting capacity? That classi-
fication will determine whether the affected party will be able to claim reparation on the
basis of unjustified enrichment. In particular, if the reason is illegality, the contractor
might be left uncompensated.123
48.3.1.4 Summary
The breadth of possibilities across the three examples of private law as environmental law
and within each example is great and not easy to summarize. We might, however, construct
two extreme types as a way of clarifying the position. One extreme would be a jurisdiction
in which the use of private law as environmental law is minimized. The other extreme
would be where it is maximized. In the first option, no legislative provision would exist to
121 Beale, Chitty on Contracts, at sections 11:007–11:009.

122 Compagnie Nouvelle du Gaz de Deville-Lès-Rouen Conseil d’Etat 10 January 1902; Société Chimique
Conseil d’Etat 8 November 1957.
123 Beale, Chitty on Contracts, at section 16:194.
1112 david howarth
Table 48.1
Minimum Maximum
Environmental assets Not tradeable Tradeable and enforceable

erga omnes
Recognized damage No one has standing to sue for Everyone has standing to sue for
long-term environmental damage long-term environmental damage
Primary remedy Damages Injunction
Liability rule Fault Strict
Factual causation No cumulative causation Cumulative causation
Legal causation Lack of foreseeability exonerates Deliberate intervention exonerates
Government immunity Complete None, even for ‘discretionary’ or
‘policy’ decisions
Public policy Specific knowledge of breach Knowledge of breach unnecessary
rule in contract necessary
make environmental assets such as carbon credits tradeable, conservation contracts would
not run with the land, no one would have standing to sue in negligence or nuisance for long-
term environmental damage, remedies would be restricted to money compensation for past
damage, the conditions of liability would be restricted to fault (perhaps even to intentional
wrongdoing), causation rules would exclude cumulative causation, the responsibility for
pollution would be easily diverted to other actors on grounds of lack of foreseeability, gov-
ernments would have immunity from private law actions, and public policy rules in contract
would require knowing breach of specific legal rules. In the latter, all environmental assets
would be recognized as tradeable and enforceable against the whole world, standing to sue for
long-term environmental damage would be granted to all citizens, the primary remedy would
be injunctions, the liability rule would be strict, cumulative causation would be recognized,
the transfer of responsibility to others would be restricted to situations of deliberate and
wrongful intervention (or even eliminated completely), governments would have no immunity
even for political decisions, and contracts would be void if they tended to make more difficult
the fulfilment of important policy objectives, including long-term environmental objectives.
Table 48.1 illustrates these extreme options.
No system takes either of these views in its totality and for each variable a number of
other possible rules exist that lie between the two. But the table gives a rough checklist for
judging how far a system has gone in adapting its private law for use as environmental law.
48.3.2 Environmental Law in Private Law

We now turn to environmental law in private law. The question is how environmental regu-
lation that takes forms different from private law, essentially criminal law and regulation,
interacts with private law. This is potentially a very large topic. Only two dimensions of the
relationship are taken up here, each of which has a plausible claim to be significant. The first
is the extent to which private law claimants can invoke environmental crimes as a basis for
legal actions even if the relevant statute fails to mention the possibility of a private law
action. The second is the degree to which defendants in private law actions can defend
themselves by showing that they had complied with environmental regulatory standards.
The two dimensions are linked in the sense that liability on the basis of violation of a
criminal or regulatory statute is only possible if the crime has actually been committed or
the regulation broken. But beyond that no purely logical connection exists. It is a matter of
public and legal policy which combination of rules on these issues a jurisdiction adopts.
A jurisdiction might, for example, combine saying that environmental crimes automatically
give rise to torts with saying that regulatory compliance is a defence in tort. In such a juris-
diction, determinations made by the state about permitted levels of pollution are dominant
in private law. But a jurisdiction might instead say that crimes do not automatically create
torts and that regulatory compliance is not a defence to private law actions. In that system
private law determines for itself the levels of pollution it will tolerate, independent of the
views of the state regulatory authorities. Moreover, those are not the only possibilities.
A jurisdiction could refuse to allow private law actions on crimes but at the same time allow
regulatory compliance to be a defence in private law. A jurisdiction could even allow private
law actions on crimes but refuse to make regulatory compliance a defence to its general torts.
It might be objected that the combination of no torts on crimes plus allowing a regulatory
compliance defence makes no sense. Criminal polluters will be prosecuted anyway so why
not reinforce the deterrent by adding in the prospect of damages? The counter is that in
systems that give prosecutors a broad discretion to refuse to prosecute (some do not give
such a discretion, notably Germany) the point of the combination is not to prevent pollution
but quite the opposite: it is consistently to protect potential polluters from legal interventions
from anyone except the state.
The final combination, torts on crimes but no regulatory compliance defence, might
draw the opposite criticism that if private claimants can bring to a halt activities the regulatory
system allows, the regulatory system would be undermined. In addition, if the defendant
commits no crime because it has a permit and thus no tort arises on the crime, why should
the permit not also undermine any other action against the defendant? But the combination
does make sense if the courts in that jurisdiction have a power to refuse or suspend injunc-
tions in exchange for enhancing compensation. The policy intention behind the combination
would be to put extra pressure on polluters through allowing tort actions on environmental
crimes but also to ensure that polluters who benefit from regulatory permissions have to
compensate those whom their activities harm even when they commit no crime.124
A rough and ready way of understanding the possibilities, ignoring the subtleties of the
law we are about to sketch, is given in Table 48.2.
48.3.2.1 Environmental Crimes as the Basis of Private Law Actions

The general relationship between criminal law and tort/delict varies to a very great degree
across legal systems,125 and even within the same system.126 The variation is not a simple
matter of common law systems versus civilian systems or codified versus non-codified
124 Howarth, ‘Noise and Nuisance’. 125 Dyson (ed.), Comparing Tort and Crime.
126 M. Geistfeld, ‘Tort Law in the Age of Statutes’ (2014) 99 Iowa Law Review 957–1020.
1114 david howarth
Table 48.2
Regulatory compliance a defence in private law?
Yes No
Environmental crime Yes State determinations Pollutees compensated for consequences

automatically a tort? dominant in private law of state action
No State protects polluters Private law determinations dominant in
from private law actions its own sphere
systems. One of the biggest differences is between English law and the law of most US states,
even though all these jurisdictions purportedly trace their law back to the same (and much
misunderstood) nineteenth-century English case.127 In English law the very existence of a
criminal penalty in a statute creates an initial presumption that the statute was not intended
to create a tort.128 In the United States, the opposite is the case.129
Liability regimes differ across a number of variables.130 They include: Is it a condition of
liability that the criminal statute can be interpreted as protecting the interests of the claim-
ant or people like the claimant? Are the types of loss the same or different from those in the
general fault torts or the nuisance/troubles torts? Do the elements of liability in the crime
determine in whole or in part the liability rule in the tort, and in particular do strict liability
crimes produce strict liability torts? Are causation rules the same or different from other
torts? Does the violation of a criminal standard result in the same levels of compensation as
in private law, or less?
The requirement that the criminal statute must be interpreted as protective of the claimant’s
interests before it can be used to create a tort is a common but not universal rule.131 It is a
characteristic of Germanic legal systems.132 It is less apparent in French-derived systems,
largely as a result of their use of the procedural device of the partie civile, under which tort
claimants are represented and make their claims in the criminal trial.133 In England and the
127 Gorris v Scott (1874) L. R. 9 Ex. 125, which concerned the loss at sea of some sheep which would
not have been lost had the defendant complied with regulations designed to prevent the importation of
diseased sheep. The misunderstanding is that nearly all commentators on both sides of the Atlantic fail
to notice that Gorris is not a tort case at all, but rather a contract case. The issue was not, as is usually
claimed, whether the purpose of the relevant legislation was to protect the owners of sheep from losing
them at sea but whether the purpose of the legislation was to alter the balance of contractual risk of such
a loss between the owner of the sheep and the owner of the ship. See Pollock B., ibid., at 130–1. What is
more plausible: that Parliament had no intention in the relevant legislation to alter the parties’ contract
or that Parliament intended to distinguish between different ways in which sheep might die?
129 B. Lindahl, Modern Tort Law: Liability & Litigation (St Paul: Thomson Reuters, 2016), § 3:73.
130 M. Dyson, ‘Tortious Apples and Criminal Oranges’ in Dyson (ed.), Comparing Tort and Crime,
at 416–75.
131 M. Dyson, ‘Tort and Crime’ in M. Bussani and A. Sebok (eds.), Comparative Tort Law: Global
Perspectives (Cheltenham: Edward Elgar, 2015), 93–121, 114; Dyson (ed.), Comparing Tort and Crime,
at 436–7.
132 Koziol, Basic Questions of Tort Law from a Germanic Perspective, at 67.
133 Dyson, ‘Tort and Crime’, at 96–7.
law of the US states, protectiveness appears as a formal requirement for liability but in the
United States many examples can be found of it being disregarded.134
On types of loss, normally the same restrictions apply as in tort law generally, even in those
systems, such as the German and the Swedish, which have explicit environmental liability
laws that envisage tort liability on the basis of breaches of environmental regulation.135 One
peculiarity, however, is the situation in English law under the crime of public nuisance.
Public nuisance is a common law crime of uncertain scope that can be used to base actions
in tort of even more uncertain scope.136 The crime is said to consist of doing anything,
except by lawful authority, that endangers ‘the life, health, property, morals, or comfort of
the public, or to obstruct the public in the exercise or enjoyment of rights common to all’.
Omissions are also covered if they involve the failure to discharge a legal duty. Surprisingly
the courts recognize a tort arising out of this crime that can be used by anyone who suffers
‘special damage’, which is to say damage more than that suffered by members of the public
generally.137 Significantly, that special damage can include forms of loss not normally recov-
erable in general tort actions, such as pure economic loss,138 and forms of loss not recoverable
in ordinary private nuisance actions, such as personal injury.139 This flexibility of public
nuisance encouraged environmental activists in the United States, where its origins in criminal
law seem to have been forgotten,140 to use it as the basis of actions against both public and
private organisations for excessive greenhouse gas emissions. All these actions have failed,
though largely because of constitutional rather than private law considerations.141
The degree to which the elements of the crime or regulatory provision control or replace
the liability rule of the tort is a much discussed issue in the United States.142 In jurisdictions
in which the tort claimant sits alongside the criminal prosecutor, however—which includes
not only systems derived from the French but also the Swedish system—no gap is discernible
between the conditions of criminal and delictual liability. The same is true, at least in principle,
in English law.143
An important issue is whether the mechanism in effect creates strict or even absolute
liability torts. The answer is often yes,144 although a prior question is whether a system allows
strict or absolute crimes in the first place. Some, in particular the German system, find the
134 Geistfield, ‘Tort Law in the Age of Statutes’.

135 Swedish Environmental Code Chapter 32, s. 1.
136 J. Spencer, ‘Public Nuisance—A Critical Examination’ (1989) 48(1) Cambridge Law Journal 55–84.
For a brave attempt at rescuing public nuisance from accusations of incoherence, albeit at the cost of
drastically narrowing its scope, see J. W. Neyers, ‘Reconceptualising the Tort of Public Nuisance’ (2017)
76(1) Cambridge Law Journal 87–115.
138 Spencer, ‘Public Nuisance’, at 82–3.
139 Burnett-Hall and Jones, Environmental Law, at section 6:091. This flexibility has not prevented
criticism of public nuisance on the ground that where no private party has suffered ‘special damage’ or,
more to the point, every victim has suffered the same damage, no private right of action arises and victims
must rely on the public authorities to bring an action: K. Stanton and C. Willmore, ‘Tort and Environmental
Protection’ in J. Lowry and R. Edmunds (eds.), Environmental Protection and the Common Law (Oxford:
Hart Publishing, 2000), 93–113.
140 T. Merrill, ‘Is Public Nuisance a Tort?’ (2011) 4(2) Journal of Tort Law 1–54.
141 Ibid., at 1–2; Kosoplova, ‘Liability for Climate Change-related Damage in Domestic Courts’.
142 Geistfield, ‘Tort Law in the Age of Statutes’.
144 Dyson (ed.), Comparing Tort and Crime, at 95 (France).
1116 david howarth
idea of crimes with no mental element difficult to accept.145 Nevertheless some writers refer
to liability under the German Environmental Liability Act of 1990 as ‘strict’.146
On causation, the most important departure from the ordinary rules is the rule of the
German Environmental Liability Act that once a general tendency for the type of establish-
ment run by the defendant to cause the relevant type of damage has been ascertained a
presumption of causation arises, unless the defendant has complied with all relevant regu-
latory requirements.147
Finally on levels of compensation, if the action on the crime or regulation is treated as a
tort or delict, levels of compensation should not differ from those obtainable in the ordinary
torts. In some systems, however, a separate system of compensation operates in the criminal
courts which bears little or no relation to the tort/delict system. In such systems, for example
in English law, in criminal court-ordered compensation, because of its limited scope and
perhaps its requirements to take into account the defendant’s ability to pay, compensation
amounts can be much lower than tort damages.148
48.3.2.2 Environmental Regulatory Compliance as a

Defence in Private Law Actions
One difference across systems that does appear to map onto the difference between common
law and civil law is whether regulatory compliance constitutes a defence to private law
actions. In the United States and in England, regulatory compliance, including compliance
with zoning or planning regulation, is not usually a defence to a nuisance action, in con-
trast to, for example, the German system, in which regulatory compliance is an important
defence.149 Regulatory compliance also appears to be a defence in, for example, Bulgaria,
France, and Italy.150
On closer inspection, however, the difference becomes somewhat indistinct. The pro-
vision of the French Code de la construction et de l’habitation that seems to provide pro-
tection against private law actions, Article L. 112.16, is far from comprehensive. It covers
only activities that can be described as ‘agricole, industrielle, artisanale ou commerciale’
and so does not apply to co-proprietors of the same block of flats or, apparently, to golf
courses.151 Retrospective permissions also do not count.152 On the other side of the divide,
English law does allow statutory authority to provide a defence and not just where stat-
utes expressly say so, for example the statute governing planning permission for national
infrastructure projects.153 Statutory authority can also work where the necessary implica-
tion of the statute was to provide a defence, at least as long as the defendant acted without
negligence in how the statutory authority was implemented.154
145 Ibid., at 155–7. 146 Lundmark, ‘Systemizing Environmental Law on a German Model’.
147 Ibid. 148 See Dyson, ‘Tort and Crime’, at 101–2.
149 Martin Santisteban and Sparkes, Protection of Immovables in European Legal Systems, at 448;
Lundmark, ‘Systemizing Environmental Law on a German Model’; Barr v Biffa Waste Services Ltd [2012]
EWCA Civ 312; [2013] Q.B. 455; Lawrence v Fen Tigers Ltd (No. 1) [2014] UKSC 13; [2014] AC 822; Jones,
Dugdale, and Simpson, Clerk and Lindsell, at section 20:90.
150 Martin Santisteban and Sparkes, Protection of Immovables in European Legal Systems.
151 Godfrin, ‘Trouble de voisinage et responsabilité environnementale’.
152 Société Calcialiment Cass. Civ. 2e 14 June 2007. 153 Planning Act 2008, s. 158.
154 Jones, Dugdale, and Simpson, Clerk and Lindsell, at sections 20:87–20:90.
48.4 Conclusion
The main goal of this chapter has been to demonstrate the great variety of ways in which
private law and environmental law interact. I hope that it has at least achieved that much.
But beyond that, I hope it has helped to lay to rest some myths about that interaction. For
example it is far from true that the form the interaction takes is determined by whether a
legal system can be classified as ‘common law’ or ‘civil law’. In a few cases, for example regu-
latory compliance as a defence in private law, that classification does seem to mark a boundary,
but in many other respects it does not. More difference exists within these classifications
than between them, for example between French and German law and between English law
and the law of the US states. Moreover, some of the most interesting systems, for example
the Swedish system, stand aside from the simple civil law/common law divide.
Another myth the chapter helps to lay to rest is that the relationship between private law
and environmental law is necessarily antagonistic. No doubt an antagonistic relationship is
possible and has occurred from time to time in various places, but so are other types of more
cooperative relationship. A complete melding of the two is perhaps not likely, since private
law can be used for a variety of goals to which environmental law is largely indifferent—the
vindication of property rights, for example, or the achievement of corrective justice—but
that variety of goals in private law is just as likely to result in friction inside private law as in
friction with environmental law.
The final myth is that policy-makers are faced with fixed private law systems and that
their only options for dealing with the relationship between private law and environmental
law lie in the latter. As Table 48.1 illustrates, policy-makers possess a large number of options
in private law too. No doubt legislators need to be careful in making new combinations that
they have taken into account all the benefits of the status quo and that they have also taken
into account possible consequential effects on other parts of the private law system, but those
concerns do not make private law reform impossible.
The last point to make, however, is addressed more to environmental lawyers than to pri-
vate lawyers. As Table 48.2 illustrates, one cannot assume that state policy takes into account
only environmental goals. More specifically one cannot classify state policy crudely as either
pro- or anti-environment. Combinations of rules that appear contradictory when analysed
from that simple point of view might have a broader logic if one takes other goals into
account. Environmental lawyers are entitled as citizens to campaign for whatever environ-
mental goals they espouse but as legal analysts they should not forget those other goals.

Cole, D., Pollution and Property: Comparing Ownership Institutions for Environmental Protection
Dyson, M., (ed.), Comparing Tort and Crime: Learning from across and within Legal Systems
Faure, M. and M. Peeters, (eds.), Climate Change Liability (Cheltenham: Edward Elgar, 2011).
Hinteregger, M., Environmental Liability and Ecological Damage in European Law (Cambridge:
1118 david howarth
Kaminskaitė-Salters, G., Constructing a Private Climate Change Lawsuit Under English Law:
A Comparative Perspective (Alphen aan den Rijn: Kluwer, 2010).
Lowry, J. and R. Edmunds (eds.), Environmental Protection and the Common Law (Oxford: Hart
Publishing, 2000).
Martin Santisteban, S. and P. Sparkes, Protection of Immovables in European Legal Systems (Cambridge:
Van Dam, C., European Tort Law (Oxford: Oxford University Press, 2013).
chapter 49
a n d Cr imi na l L aw
Emma Lees

49.2 Mutual Reinforcement 1120
49.2.1 The Purpose of Criminalization 1121
49.2.2 Modes of Interaction 1122
49.2.2.1 One-Step Criminal Offences 1123
49.2.2.2 Two-Step Criminal Offences 1124
49.2.2.3 Three-Step Criminal Offences 1125
49.2.2.4 Sanction of Last Resort and Enforcement Policy 1125
49.2.2.5 Criminal Law as a Substitute for Environmental
Standards1127
49.2.3 Conclusion 1128
49.3 Conflicts 1128
49.3.1 Strict Liability 1129
49.3.2 Risk-Based Regulation 1132
49.3.3 Interpretation 1134
49.3.4 The Harm Principle and Moral Certainty 1135
49.1 Introduction
The variety of forms of environmental law—both in terms of content and of design—which

has been discussed throughout this book, demonstrates the extent to which regulatory
innovation has been used to improve the level of environmental protection achieved, as
well as to strive for efficiency in the operation of the resulting provisions. However, much
1120 emma lees
environmental law is ultimately supported with the ‘stick’ of criminal sanctions. Indeed,
such sanctions act as the ‘rule of last resort’ for most environmental law regulations, even
those based on market mechanisms. Despite this, prosecutions for breach of environmental
criminal law are relatively rare, with many states preferring to pursue alternative enforcement
approaches first.1 There is, as a result of this, a loud call for more to be done to punish those
who flaunt environmental standards, and for fines and sentencing to reflect the seriousness
of environmental crime.2 However, engaging the criminal justice system brings with it chal-
lenges for environmental law, as well as opportunities, and the pressure to use criminal law
more proactively to support environmental regulations will bring these challenges increas-
ingly to the fore. This chapter will explore the cooperative relationship that can exist between
the two systems, considering the conditions within which this cooperation can flourish,
before examining the areas where the two systems might pull in different directions.
Ultimately, these conflicts exist at the level of principle and arise from the moral ambi-
guity present at the fringes of environmental criminal law. On the one hand, criminal law
principles prioritize: certainty of proof; the central role of fault in justifying the imposition
of sanctions; legal certainty; and the need for an adjudicative process overseen by an inde-
pendent judiciary. Environmental law, on the other hand, very often seeks to find regulatory
solutions in the absence of scientific certainty, in cases involving strict liability, on the basis
of administrative decision-making which is flexible, responsive, and very often, pre-emptive.
Thus, where the two systems meet, as they do in almost all legal systems, a decision must be
made as to how such principles should interact. This chapter explores these principles at
their points of intersection, considering: strict liability; risk-based regulation; the relevance
of harm; and interpretive approaches, before concluding by examining the role of moral
clarity in explaining these tensions.
49.2 Mutual Reinforcement
Before considering these tensions, however, it must be reiterated that, for the most part,
environmental law and criminal law are mutually supportive. Across many legal systems,
offences are used to back up administrative regulatory systems, and the courts handle envir-
onmental cases in the same way as all other criminal offences. Indeed, historically, in the
1 Somewhat surprisingly, it appears that in some jurisdictions, such as the United States, such prosecu-
tions have actually fallen since the early 2000s—see C. M. Russo, ‘Criminal Prosecution for Environmental
Lawbreakers: A Statute with No Bite’ (2017) 28 Villanova Environmental Law Journal 97. This is likely due,
in part, to the resources available to prosecuting authorities in light of the global financial crisis, and
yet given the prominence of the environment in present political discourse, it is perhaps still surprising.
The opposite position can be seen in the United Kingdom, however, where not only are prosecutions
becoming more likely, since the coming into force of the new sentencing guidelines, the penalties thereby
imposed have become more severe. See Sentencing Council, ‘Environmental Offences: Definitive
Guideline’ (London, 2014), available at: https://www.sentencingcouncil.org.uk/wp-content/uploads/
Final_Environmental_Offences_Definitive_Guideline_web1.pdf. For a clear example of the conse-
quences of this approach, see R. v Thames Water Utilities Ltd [2015] EWCA Crim 960; [2015] 1 WLR 4411.
2 R. Macrory, Regulation, Enforcement and Governance in Environmental Law (Oxford: Hart Publishing,
2010) considers the role of criminal law in regulatory design.
environmental law and criminal law 1121
United Kingdom and United States for example, courts have been criticized for being too
lenient with the sentences handed down in environmental cases.3 This suggests that, for the
most part, the tensions that exist in terms of attempting to regulate environmental prob-
lems through criminal law, as discussed below, are not enough to warrant leniency, nor to
suggest that we should hold off from prosecution in all but the most egregious of cases. This
section demonstrates how the two systems can complement one another by considering the
purpose of criminalization and the modes of interaction between public law and criminal
law in relation to the environment.
49.2.1 The Purpose of Criminalization

In order to explain why criminal law is so useful in terms of environmental protection, it is
important to examine the reasons behind criminalization. In the early years of environmen-
tal protection, whilst criminal sanctions were usually ‘parasitic upon’ administrative decision-
making,4 most countries did not have some form of administrative sanction available to act
as an alternative punishment mechanism. Thus, in many legal systems, criminal sanctions
were used as a form of punishment for breach of environmental controls because there were
no other forms available. That position is less true now. For example, in the United Kingdom,
the Regulatory Enforcement and Standards Act 2008 means that there is now a well-developed
system of administrative sanctions, but as a historical explanation for the use of criminal
sanctions in environment law, it is important to realize the practical need for such a sanc-
tion in the early years of environmental law. This does not explain what role such sanctions
play now however.
Rather, there are two purposes for criminalization in modern regulatory law. Criminal
law is, in most cases, the only vehicle through which imprisonment can be imposed as a
punishment. Furthermore, in many legal systems, administrative fines cannot be as ‘high’ as
fines imposed through the criminal law. Thus, the punishments imposed through criminal
law are the most serious which a legal system can inflict. For this reason, criminalization
serves two related purposes. On the one hand, it represents a degree of societal condemna-
tion of the particular act which is not available in any other (officially sanctioned) form. On
the other hand, it acts, as a result, as the strongest deterrent available. This is especially so
where a fine could require both the payment of the costs of any remediation of the relevant
harm, as well as a sum specifically designed to be purely punitive. A prison sentence is of
course also a very strong deterrent, even in the field of corporate crime where imprison-
ment of individual corporate officers may be considered to be relatively unlikely when
compared with the imposition of a very large fine. Thus, criminal law is used, in essence,
to achieve these two ends (particularly where alternative administrative sanctions are
3 See N. Parpworth, ‘Sentencing for Environmental Offences: a New Dawn?’ (2013) Journal of Planning
4 M. Faure, ‘The Revolution in Environmental Criminal Law in Europe’ (2017) 35 Virginia Environmental
Law Journal 321; M. Faure and K. Svatikova, ‘Criminal or Administrative Law to Protect the Environment?
Evidence from Western Europe’ (2012) 24 Journal of Environmental Law 253.
1122 emma lees
available): attachment of stigma,5 and severity of penalty, to act as deterrent and to demonstrate
societal condemnation.
These two purposes of criminalization have the potential to be very useful as part of
the ‘toolbox’ of environmental regulation. As such, criminal law can add a great deal to the
regulatory and administrative approaches which characterise environmental law. However,
environmental law is largely carried out within the administrative sphere for good reason.
Environmental law needs to be flexible, responsive, and pre-emptive, and must be able to
operate in the face of the shifting sands of scientific knowledge. This, as we shall see, makes
it difficult to mobilize criminal law to achieve the two goals here.
49.2.2 Modes of Interaction

Notwithstanding such difficulties, when we examine the potential forms of environmental
law, it is clear to see that there are a wide range of contexts within which criminal law can
constitute the necessary ‘stick’ and support the regulatory system so as to both provide a
mechanism for effective enforcement, and an effective deterrent. Criminal provisions will
take on a variety of forms when performing these roles. As a result, there are subtly but
importantly different ways in which these offences can integrate into the regulatory picture.
Moules explains the different forms that environmental law can take, and examining
these gives some insight into the shapes which criminal law adopts in this context.
There are six main ways in which public law regulates the environment. First, public law
regulation may involve the setting of standards, for example in relation to water or air qual-
ity. Second, public law may require the authorisation of certain activities, such as the town
and country planning regime, which requires planning permission to be obtained before
development is carried out, or the environmental permitting system created by the Integrated
Pollution Prevention and Control Directive, which requires certain environmentally harm-
ful activities to be licensed. Third, public law may prescribe particular procedures to be
carried out before an activity may be undertaken. A good example of this is the requirement
for environmental impact assessment and strategic environmental assessment. Fourth, pub-
lic law regulation may identify certain land or species that must be protected. Thus, EU and
domestic law provides protection for designated species and habitats, as well as the green-
belt, Areas of Outstanding of National Beauty and Sites of Special Scientific Interest. Fifth,
public law regulation may lead to the banning of certain activities, for example, fly-tipping.
Finally, civil liability may be created, penalising environmentally harmful activity such as
contaminating land.6
We can start, on the basis of this explanation, to develop a taxonomy for the ways in which
criminal law interacts with these different forms of regulatory system. This chapter refers to
this as ‘one-step’, ‘two-step’, and ‘three-step’ criminal offences.
5 R. J. Lazarus, ‘Meeting the Demands of Integration in the Evolution of Environmental Law:
Reforming Environmental Criminal Law’ (1995) 83 Georgetown Law Journal 2407, at 2442.
6 R. Moules, Environmental Judicial Review (Oxford: Hart Publishing, 2011), 6.
49.2.2.1 One-Step Criminal Offences

‘One-step’ criminal offences are where the criminal offence consists in the carrying out a
prohibited act, where the act in question is not determined by reference to any individual-
ized norm. This is the normal form of most criminal law. Thus, the criminalization of fly-
tipping would create a one-step criminal offence, as it is simply a prohibition on deliberately
depositing certain prescribed substances. Similarly, prohibitions on discharge into protected
waters, the killing or injuring of a particular animal, stealing birds, etc., are all one-step
offences. The regulatory design elements in such offences tends to be relatively simple but,
and perhaps as a consequence of this (particularly if the EU experience is anything to go by),
can be enormously problematic to interpret. This is because, in order to maintain the flexi-
bility which two- and three-step offences can engender more easily, in an environmental
context, these sort of offences tend to be drafted in relatively broad and discretionary terms
and interpreted purposively. A clear example of this tendency is (one of) the waste offence(s)
created by the Waste Framework Directive,7 which, as translated into English law, for
example, prohibits a ‘deposit’ of controlled waste.8 Controlled waste is defined by EU law
as a substance which its holder intends to discard, must discard, or has discarded.9 Thus,
the meaning of the word ‘discard’ is essential to the definition of this one-step offence. It
has been notoriously difficult to interpret.10 In part, this drafting is a consequence of not
wishing to impose further administrative steps (such as the creation of a list of wastes)
between the actus reus constituting the offence, and the behaviour of the individual offender,
which would limit the flexibility of the offence.
The creation of this sort of autonomous offence, common across many jurisdictions, is
significant for the interaction between environmental and criminal law. Faure explains that
‘[t]he most important change [since the 1970s] is that the criminal provisions are no longer
just an “add on” to administrative environmental laws’.11 Autonomous offences of this kind
create an important symbolism and demonstrate that society ranks the harm caused by
committing such offences equally with other more tangible and immediate harms, such as
injury to another person. Furthermore, in relation to this sort of provision, the ‘real life’
harm or risk of harm being caused is the basis of the definition of the offence. This intimacy
7 Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on
waste and repealing certain directives [2008] OJ L312/3.
8 Environmental Protection Act 1990, s. 33. 9 Article 3(1) Waste Framework Directive 2008.
10 See, amongst others, DEFRA, ‘Guidance on the Legal Definition of Waste and its Application’
(London: DEFRA, 2012), available at: http://www.defra.gov.uk/publications/files/pb13813-waste-legal-
def-guide.pdf and in relation to end-of-waste status, Environment Agency, at: http://www.environment-
agency.gov.uk/business/sectors/124299.aspx. With respect of the relevant CJEU case-law, see: joined
cases C-418/97 and C-419/97 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
[2000] ECR I-04475, [51] and [64]; C-206/88 and C-207/88 Criminal proceedings against G. Vessoso and
G. Zanetti [1990] ECR I-01461, [12] and [13]. There is a lot of academic commentary on this definition.
See e.g. I. Cheyne and M. Purdue, ‘Fitting Definition to Purpose: the Search for a Satisfactory Definition
of Waste’ (1995) 7 Journal of Environmental Law 149, at 165; A. Samuels, ‘The Legal Concept of Waste’
[2010] Journal of Planning and Environmental Law 1391; A. Ogley, ‘A Wasted Opportunity?’ [2011] Journal of
Planning and Environmental Law 10; D. N. Pocklington, The Law of Waste Management (London: Sweet
and Maxwell, 2nd edn. 2011); E. Lees, Interpreting Environmental Offences (Oxford: Hart Publishing, 2015).
11 Faure, ‘The Revolution in Environmental Criminal Law in Europe’, at 322.
1124 emma lees
of connection between harm and offence minimizes conflict between the harm principle
and environmental protection. This conflict is discussed in more detail below.
49.2.2.2 Two-Step Criminal Offences

However, one-step solutions, given the pressure to create flexibility and responsiveness, are
not optimal as a solution to all environmental problems. An alternative is to use two-step
criminal offences instead. Two-step criminal offences are offences where the offence consists
of a breach of an individualized (and therefore, usually fairly specific) rule created through
an administrative decision which applies only to the particular offender (or a subset of
offenders). For example, an offence which consists in the breach of a pre-determined con-
dition forming part of a pollution control licence, would be a two-step offence since the
content of the offence is determined not according to a generally applicable standard, but
rather is determined by a standard specifically applicable to the offender because that
individual has been prohibited from operating their facility in a particular way.
This kind of ‘two-step’ criminal offence is a consequence of, as Faure explains, ‘the admin-
istrative dependence of environmental criminal law’.12 It is important to note that whilst the
actus reus of the offence is ‘breach of a licence’, the actual behaviour which constitutes such
a breach will vary from offender to offender. Contrast this with one-step offences where the
behaviour, that is, the discharge of a pollutant into a river, is the same across offenders.
The benefit of taking this approach to defining environmental offences is that those sub-
ject to the rule are able much more easily to plan their activities, since they will have an
individualised explanation of their duties arising under the law, and this will help to ensure
compliance with the law, especially when compared to the uncertainty present in many
one-step offences.
A great deal of environmental criminal law is parasitic upon an administratively set
standard in this sense. However, as Faure explains, this particular kind of criminal law
provision does pose a particular set of challenges. One of these is a coherence problem:
This structure, whereby the criminal provisions could only be found at the end of an admin-
istrative law, had a few obvious disadvantages. One practical disadvantage arose from the
fact that environmental crime was not described (by the legislator) in a harmonized and
coordinated way.13
As soon as the offence becomes dependent upon the content of the licence, for example, the
actual behaviour which constitutes the offences necessarily varies according to the exercise of
the relevant administrative discretion, leading, potentially, to inconsistency across the legal
system. This is not to say that the potential inconsistency in terms of the pattern of norms
which emerges is not a worthy sacrifice to be made for the overall benefits of having flexibil-
ity in decision-making, but simply that most criminal law seeks to impose exactly the same
level of behaviour onto all persons regardless of their identity and regardless of the admin-
istrative priorities and judgement of a local authority or environmental protection agency.
12 Faure, ‘The Revolution in Environmental Criminal Law in Europe’, at 322.

13 Ibid., at 325.
Two-step offences do not result in this sort of consistency, and where that inconsistency
cannot be explained on a rational basis, incoherence will emerge.
Notwithstanding this potential difficulty, there is no doubt that this is a very popular
regulatory technique. Thus, in the EU (following Directive 2008/99/EC on the protection
of the environment through criminal law), at the very least, intentional breaches of the
integrated licensing system will be punished through the criminal courts across the EU
(subject of course to prosecutorial discretion). Similarly, in South Africa, breach of permit-
ting conditions or failure to obtain a permit in relevant cases can be punishable by fines and
imprisonment.14 In fact, the vast majority of worldwide pollution control regimes impose
criminal sanctions for breach. Given this, it is important to consider how we can attempt to
ensure coherence, without sacrificing the very flexibility which is the raison d’etre of this
kind of offence structure.
49.2.2.3 Three-Step Criminal Offences

Finally, three-step criminal offences are cases where the offence consists in a failure to
respond to an administrative sanction/remediation order/stop notice, etc., which is intro-
duced in response to a failure to comply with a substantive environmental law condition.
So, for example, the offence which consists in a failure to comply with a remediation notice
served in cases where the land has been determined as contaminated is a three-step offence,
since it is parasitic not only upon the invocation of the administrative categorization of the
land as contaminated, but also on the failure to have complied with a further sanction (of
some form) meted out by an administrative authority, that is, the serving of the remediation
notice. Breaches of enforcement notices in the United Kingdom in relation to planning
are also three-step offences, since the substantive act of developing land or changing its use
without planning permission is not a criminal offence. The offence only emerges when the
further act of not complying with a discretionary enforcement notice occurs. Three-step
offences are designed to encourage compliance with the underlying substantive rule as a
priority, with punishment seen as a last resort, and only available once other steps to redress
have been tried.
49.2.2.4 Sanction of Last Resort and Enforcement Policy

The purpose of explaining this three-fold characterization is to highlight that the tensions
which emerge between the principles of criminal and environmental law, as discussed
below, do not play out in the same way regardless of the form of the particular offence.
However, the particular form which the offence takes is not the only variable in terms of the
design of any particular offence. Its place within the overall pyramid of responses to an
environmental problem can vary.
One particularly popular approach is to see criminal law as forming the last part of an
enforcement pyramid, so that it truly is a sanction of last resort, regardless of what form the
offence takes, so that the criminal prosecution of an act is not an automatic response to any
14 National Environmental Management Act of 1998. Licences are required for activities listed in s. 24.
Similarly, licences are required for waste management activities, National Environmental Management:
Waste Act No. 59 of 2008; activities which result in air pollution, National Environmental Management:
Air Quality Act No. 39 of 2004; and water pollution, National Water Act No. 36 of 1998.
1126 emma lees
number of breaches. This may be by making the offence a three-step offence, as explained
above, or there may simply be soft law or binding guidance in place which encourages
an administrative authority to prioritise other forms of sanction (even if the use of such a
sanction is not mandatory before resort can be made to the criminal law). Such an approach
allows for negotiation between the enforcing authority and the potential offender before
the mechanics of the criminal law are engaged. Even in cases where there is no explicit
‘negotiating window’, however, the general practice in many countries is for prosecuting
authorities to use their enforcement powers in a discretionary way. This allows environ-
mental law standards to be flexible and responsive, and whatever the problems of principle
which exist, therefore, there is a sort of built in safeguard attempting to ensure that offences
are only prosecuted where the appropriate moral wrongdoing appears to be present (see
section 49.3.4).
However, the symbolism of seeing criminal law as the sanction of last resort can be
criticized. By opting for a negotiated or an administrative sanction, the decision-making
authority is effectively signalling that the behaviour is not sufficiently serious to warrant
the introduction of the stigma associated with a criminal offence, or the punishment level
permitted in the criminal system. In fact, practically, the usual reason why a criminal pro-
cess would be avoided is really one of costs, but in terms of the moral explanations for using
the criminal law, using it in this way lessens the effectiveness of the symbol and of the deter-
rence which is the very reason why criminal law was being relied upon in the first place.
Furthermore, the discretionary nature of enforcement in environmental law has import-
ant consequences for the way in which environmental and criminal law work together.
First, because of the nature of likely offenders, corporate in nature, and with relatively high
resources, enforcing authorities will be more likely to seek a fine rather than imprisonment.
Second, the nature of the offence, which impacts upon likely offenders and their identity
and resources, in turn has implications for prosecution process adopted by the regulator.
This is not ‘normal’ criminal law. The regulator will often negotiate with the potential offender
or offender with a view to ensuring future compliance and promoting good practice, rather
than focusing on punishment for past acts.15 The result is that only the very worst offenders
or offences will result in prosecution. This, of course, impacts upon the approach taken by
the courts to interpretation, either consciously or subconsciously, because it will mean that
very serious offenders who have caused a lot of harm will probably appear before them, and
this may result in the court, if taking a purposive approach to environmental protection, to
widen the relevant interpretation to cover the instant case. This is one explanation as to
what has happened in relation to the definition of waste (see section 49.2.2.1).
Uneasiness over the strict liability nature of many of these offences (see section 49.3.1),
as well as uncertainty regarding blameworthiness, will also add to the complexity of the
overall picture. This is especially pertinent in cases involving elected officials making the
relevant prosecutorial or administrative decisions which subsequently lead to prosecution
(such as serving an enforcement notice or similar), since those persons will likely be wary
15 e.g. in the United Kingdom, Natural England and the Environment Agency both pursue a policy
of negotiation and compliance rather than enforcement through the criminal law. Natural England,
‘Compliance and Enforcement Position’ (London: Natural England, 2011) and Environment Agency,
‘Enforcement and Sanctions Statement’ Policy 1335_10 (previously EAS/8001/1/1), Version 2 (London:
Environment Agency, 2011).
of imposing high levels of liability onto constituents whose moral culpability looks doubtful.
In the United Kingdom for example, this problem has been encountered in relation to the
contaminated land regime, where despite having the power to recoup the cost of remediat-
ing land from owners or occupiers of the land, including residential occupiers, virtually no
local authorities have opted to do this because of the bad feeling that this would generate
in the locality, and because the general perception is that where the owner or occupier did
not cause or even know about the relevant pollution, that it would be ‘unfair’ for the local
authority to obtain remediation costs from them. This is the case notwithstanding the fact
that if the public purse pays to clean up the land, the owner will actually obtain a windfall
at the expense of the public. Treating criminal law as a sanction of last resort, and allowing
a great deal of individualized discretion as to whether or prosecute or not, can result in the
provisions being applied differently from the way in which the system was intended to work.
However, enforcement discretion in this sense is not necessarily a bad thing overall. Indeed,
this discretion can actually be seen as a means of reconciling the conflicts in principle, albeit
in a highly pragmatic way, which are discussed in section 49.3. First, having such flexibility
for the regulatory authorities can ensure that the enforcement of poorly drafted or unclear
criminal law is more in line with the principles of criminal law, with prosecution only being
pursued in cases of clear breach. The administrative foundations of environmental law can
actually be used, therefore, as a tool to ensure that the criminal law principles are met in
practice, even if they are in conflict with the formalized system put in place by the environ-
mental law standard concerned. Second, allowing for this sort of discretion means that for
those offences which are prosecuted, the conviction rate is relatively high. This can actually
improve the deterrent effect since the ‘high profile’ cases will very often involve conviction.
Sunstein explains how discretion can assist in striking this delicate balance between clear,
predictable, and consistently applied rules, and the impossibility of drafting such perfect rules:
Now suppose that a rule is in place. If strictly followed, the rule will often produce arbitrariness
and errors in particular cases. As we have seen, the justifications that underlie the rule will
not support all instances to which the rule applies by its terms. More generally, experience
will turn up considerations or contexts that make it odd or worse to apply the rule. For this
reason it is sometimes inefficient to make decisions by rule because any rule that people can
generate will produce too much inaccuracy.16
This argument can be made with particular force in relation to environmental law, and the
discretion in enforcement policy which characterizes many national approaches, is a good
way of ensuring the two systems remain mutually supporting.
49.2.2.5 Criminal Law as a Substitute for Environmental Standards

Finally, criminal law can be used in particularly grievous environmental cases, where no
environmental law exists, to attract punishment for those causing such devastating harm.
This has been used (historically) before the development of detailed environmental regula-
tory systems, but continues to be an option for the worst environmental disasters today.
A good example of this is the legal action which has followed the Bhopal Gas Leak. Indian
16 C. R. Sunstein, ‘Problems with Rules’ (1995) 83 California Law Review 953, at 992.
1128 emma lees
environmental law standards at the time of the leak were insufficient to provide remedies to
the victims or to ensure punishment for the perpetrators, but Indian criminal law standards
were able to provide some form of redress (albeit it limited and insufficient).17 Provisions
relating to corporate manslaughter, property damage, and health and safety violations of a
less serious kind which exist in the wider criminal law can be used in this sense to step in
where environmental law fails.
49.2.3 Conclusion
We can take three primary lessons from this consideration of the way in which environ-
mental law and criminal law can be mutually supportive. First, criminal law, in taking a var-
iety of forms in this context, cannot be treated as creating either a single mode of support,
or, indeed, a single form of conflict. Rather, the different design options for the relevant
offences means that the support will be provided in a variety of forms. Second, the modern
purposes of criminalization—attachment of stigma, and deterrent effect through severity of
punishment—affect the way in which we should use criminal law within our environmental
systems. In particular, where there is a need to be flexible and responsive, both the stigma
and the deterrent effect will be reduced by the resulting discretion. Using broad definitions
to achieve this flexibility also affects the moral clarity of the relevant offence. This should
be kept in mind when the criminal law is mobilized. Finally, discretion, whilst potentially
limiting the deterrent and stigma effects of the offence, may actually be a way of ensuring
compliance with wider criminal law principles, by ensuring appropriate prosecution.
49.3 Conflicts
However, even taking account of these design choices, and the enormous utility that criminal
law has in these areas, there are, and there will remain, a number of conflicts in principle
which are largely unavoidable. Lazarus has analysed this as being a problem of integration,
so that the principles and policies of environmental law are not well integrated with the
foundational ideas in criminal law.18 Thus, he explains:
Even the most cursory review of the competing features of environmental law and criminal
law reveals several obvious tensions confronting the development of an environmental crim-
inal program. Criminal law requires more demanding proof to convict, but environmental-
law makes such a showing problematic because of scientific uncertainties and fragmented
decision-making authority. Criminal law emphasizes settled norms, while environmental law
constantly changes and aspires for fundamental and dramatic change. And, although criminal
17 L. Polgreen, ‘8 Former Executives Guilty in ‘84 Bhopal Chemical Leak’ New York Times, 7 June
2010, available at: http://www.nytimes.com/2010/06/08/worldlasia/08bhopal.html, cited in K. Crowe,
‘Cleaning Up the Mess: Forum Non Conveniens and Civil Liability for Large-Scale Transnational
Environmental Disasters’ (2012) 24 Georgetown International Environmental Law Review 449, at 456.
18 Lazarus, ‘Meeting the Demands of Integration in the Evolution of Environmental Law’, at 2412.
law requires clear, determinate, and readily accessible legal standards, familiar to the general
public, environmental law is replete with obscure, indeterminate, and highly technical stand-
ards, the meaning of which few can claim genuine mastery.19
The consequences of this lack of integration are potentially serious:
The cost of non-integration includes both the cost to environmental law’s integrity and the
concomitant reduction of the moral force of criminal law. Criminal law possesses moral force
because of its close adherence to traditional criteria of moral culpability . . . It is not enough,
therefore, that the environmental concerns safeguarded by environmental protection stand-
ards clearly fall within those kinds of interests warranting the protection of criminal sanc-
tions. Nor are environmental criminal penalty provisions justified simply because many
violators of environmental standards are indistinguishable in motive and intent from those
committing more traditional crimes condemned by society. Those important general truisms
are not a substitute for proof that an individual defendant possesses the level of culpability
necessary to justify one of society’s harshest sanctions: felony incarceration. Environmental
law cannot have it both ways. It cannot seek to exploit criminal law’s moral force, while
abandoning those elements, like mens rea, upon which the legitimacy of that moral force
ultimately rests.20
The nature of the sanction, and the potential punishments that come with criminal regula-
tion, mean that questions of liberty, legitimacy in regulation, and certainty are brought into
sharper focus than they would be were a regime premised upon civil sanctions.21 However,
the overall lack of integration can be broken down into a number of different elements, and
in breaking this down, we can examine where progress can be made in resolving these
conflicts. This chapter considers strict liability, regulation of risk, interpretive approaches,
the role of harm, and finally, moral certainty and symbolism.
49.3.1 Strict Liability

Strict liability as a basis for criminal law has always been considered problematic. Indeed,
one of the central justifications for criminal law punishments is the mens rea which is
required to accompany an act before it can be considered worthy of the imposition of
society’s most serious sanction. This poses a problem for environmental law, since in
many places there is a need to impose strict liability to cover situations where, in par-
ticular, scientific knowledge at the time of an offence would be insufficient for harm
to be foreseeable or where there has been cumulative harm. Strict liability is also an
important element of environmental law, essentially, because of the ‘public good’ nature
of the environment and its protection. As explained neatly by the House of Lords in in
Alphacell v Woodward:
19 Ibid., at 2445. 20 Ibid., at 2486.

21 That criminal law is special in this respect is underlined by the ECJ’s approach to interpretation in
relation to criminal law and by Art. 7 ECHR.
1130 emma lees
If . . . it were held to be the law that no conviction could be obtained . . . unless the prosecution
could discharge the often impossible onus of proving that pollution was caused intentionally
or negligently, a great deal of pollution would go unpunished and undeterred to the relief of
many riparian factory owners. As a result, many rivers which are now filthy would become
filthier still and many rivers which are now clean would lose their cleanliness.22
It is for this reason that the presumption of mens rea is rebutted in the United States in
‘public welfare offences’,23 and in Canada and New Zealand for, ‘regulatory offences’.24
However, part of the justification for strict liability in these cases seems to be that because
such offences are ‘technical’ in nature, they do not attract the same stigma as does a ‘true
crime’. From an environmental perspective, this is unfortunate, since part of the purpose of
criminalizing environmental harm is to give it this stigma so as to act as a vehicle by which
the public attitude towards the environment changes over time. In this way, the purpose of
imposing strict liability, and the justification which has to be given for doing so in a criminal
context, are in many ways, conflicting.
Notwithstanding the importance of strict liability in cases of public welfare offences
therefore, many legal systems do not impose strict liability in criminal law, or justify so doing
by reference to an extended theory of knowledge or reasonable risk taking. For example, in
India, absolute liability rules are seen as being acceptable because knowledge is presumed
in situations where an individual undertakes an especially risky or dangerous activity.25 Thus,
in terms of what constitutes the offence, there is a mens rea element. The modification to the
normal approach in criminal law is simply that the mens rea does not need to be proved.
Other countries refuse to apply strict liability at all. For example, in Brazil, based on
to the Federal Law No. 9,605/1998, certain offences are considered as crimes but criminal
liability will always depend on the existence of fault or intention. In the EU too, the EU
Criminal Law Directive gave leeway to Member States to refrain from imposing strict liabil-
ity for criminal offences. The Directive requires that, as a minimum, criminal sanctions be
imposed where there is fault, but there is no demand that strict liability offences be created.
Some Member States, including, for example, Belgium,26 have opted not to introduce strict
liability. Similarly, in Sweden, whilst an environmental administrative sanction can be
imposed absent intent or negligence, for a criminal penalty, and thus the possibility of
imprisonment, to be permissible, there must be some form of intention.27
22 Alphacell Ltd v Woodward [1972] A.C. 824 (HOL), at 848.

23 Morisette v United States 342 US 246 (1952); United States v Dotterweich 320 US 277 (1943).
24 Fraser v Beckett and Sterling Ltd [1963] NZLR 480; R v City of Sault Ste Marie (1978) 40 CCC (2d)
353 (SCC). See G. L. Peiris, ‘Strict Liability in Commonwealth Criminal Law’ (1983) 3 Legal Studies 117
and M. Kidd, ‘The Use of Strict Liability’ (2002) 15 South African Journal of Criminal Justice 23.
25 Oleam Gas Leak Case, MC Mehta v Union of India WP 12739/1985 (1986.12.20).
26 Supreme Court jurisprudence is codified in Decree of 5 April 1995 concerning general provisions
relating to environmental policy as explained in Milieu, ‘Evaluation Study on the Implementation of
Directive 2008/99/EC on the Protection of the Environment through Criminal Law by Member States:
National Report for Belgium’ (Brussels, 2015), available at: http://ec.europa.eu/justice/criminal/files/
environment/nr_be_redacted_en.pdf.
27 Discussed in Supreme Court, Case NJA 2004, at 840. See Milieu, ‘Evaluation Study on the
Implementation of Directive 2008/99/EC on the Protection of the Environment through Criminal Law
by Member States: National Report for Sweden’ (Brussels, 2012), available at: http://ec.europa.eu/justice/
criminal/files/environment/nr_se_redacted_en.pdf.
Why might this be, despite the critical importance of having strict liability in environmental
law explained above? Do the arguments against strict liability go beyond ‘distaste’ at imposing
a punishment onto someone who is not at fault? There are five key arguments against strict
liability in the environmental context. First, there are almost always multiple actors and
actions relevant in the creation of an actionable environmental harm. The offender’s actions
are often only harmful because of some additional factors, such as the contributions of
other polluters, for example, which mean that his individual contribution causes some harm
at all. This is because environmental harm is often cumulative. This means that, as Posner
and Sunstein explain: ‘[b]ecause multiple persons and actions . . . are necessary for harm to
have occurred, identification of the person who has “caused” [for the purposes of liability]
the harm requires some kind of assignment of blame’.28
Thus, in cases of cumulative harm, there is a need to distinguish between those who are
treated as causing harm, and those treated as causing a background condition within which
harm can emerge, and very often the way that this causal question is resolved is actually by
making reference to standards of blame and fault. This is not possible where the offence is
one of strict liability so that blame is irrelevant.
Second, strict liability is essentially premised upon the idea that the foresight of the
offender is irrelevant as to our calculation of their culpability. We must ask, however, whether
such an attitude to lack of foresight is possible or helpful in environmental law when con-
sidered from the perspective of the regulated. Sometimes we do need to consider the theor-
etical offender, even when faced with a clear breach of the rules, when thinking about
questions of interpretation and meaning in the instant case. The theoretical offender must
be able to plan his actions or the deterrent effect of the criminalization is nullified. This
is even more the case where, as is discussed below, there is a low level of moral certainty
in relation to the specific prohibition.29 Perhaps more importantly, where intention is not
a necessary element of conviction, we risk infringing upon the personal autonomy of the
regulated. As Brudner explains:
[I]n the context of regulatory offences, fining the blameless and incarcerating the negligent
are unjust, not because they violate a backward-looking requirement of desert, nor because
they fail to promote or to maximize the good (however defined), but because they involve an
illicit subordination of personal autonomy to the perceived requirements of welfare’.30
Third, strict liability offences lack a connection to ‘moral clarity’ (see section 49.3.4). Moral
clarity is both important and useful in the creation of criminal law. It is important because
it is part of the fundamental justifications of the criminalization of behaviour. With the
possibility of incarceration, the act prohibited must, in some sense, be one which is worthy
of moral condemnation. The role of the harm principle in justifying this condemnation,
and its place within environmental law is discussed further below but lack of intention,
recklessness, or even negligence, limits our instinctual condemnation of the behaviour of
28 E. A. Posner and C. R. Sunstein, ‘Climate Change Justice’ (2008) 96 Georgetown Law Journal 1565,
at 1598.
29 J. Gardner, ‘Rationality and the Rule of Law in Offences Against the Person’ (1994) 53 Cambridge
Law Journal 502, at 520.
30 A. Brudner, ‘Imprisonment and Strict Liability’ (1990) 40 University of Toronto Law Journal 739, at 740.
1132 emma lees
the offender. Such moral clarity as to blameworthiness, is useful because even if the law,
in textual and interpretive terms, is relatively unclear, and even incoherent in a legal sense,
where the act is clearly morally repugnant, it is easier for the legal system to ‘overlook’ prob-
lems with regards to the drafting of offences since the ‘man in the street’ is usually able to
work out that the act which he intends to carry out is one which would normally attract the
condemnation of the legal system. This means that strict liability offences, lacking as they
do a sense of culpability, pose a problem for the moral clarity of the law, and thus its acces-
sibility and certainty for those subject to its power.
Fourth, as Lazarus explains:
Environmental standards, unlike most traditional crimes, present questions of degree rather
than kind. Murder, burglary, assault and embezzlement are simply unlawful. There is no
threshold level below which such conduct is acceptable. In contrast, pollution is not unlawful
per se: in many circumstances, some pollution is acceptable. It is only pollution that exceeds
certain prescribed levels that is unlawful. But, for that very reason, the mens rea element should
arguably be a more, not less, critical element in the prosecution of an environmental offence.31
This argument is particularly pertinent in relation to one-step offences, where the discre-
tionary elements of the definition of the relevant harm (given the open-textured nature of
the legislative drafting), can make this ‘threshold’ problem especially serious.
Finally, it should be noted that the use of strict liability in relation to environmental law
is further complicated by the fact that the law here is often being used not as a response to
a particular view that an act is morally repugnant, but to create that view.
For the moral stigma of the criminal sanction will attach in the long term only if the public is
persuaded both of the moral culpability of the proscribed conduct and of the reliability of the
adjudication of the defendant's guilt. In this respect, the criminal law exhibits unavoidable
circularity: criminality turns on morality, yet morality may itself turn on criminality.32
Combined, these arguments present a strong case for why strict liability—always considered
an issue in criminal law—is all the more serious given the special features of environmental
regulation.
49.3.2 Risk-Based Regulation

It is not just the strict liability nature of many of these offences which results in the moral
ambiguity, however, which, historically at least, has cast into doubt the role of criminal law
in environmental protection. The fact that many such rules are designed to protect against
the creation of risk, rather than of harm per se, has affected how such rules operate within
a criminal context. There are two aspects to this. First, criminal law, as a general rule,
31 R. Lazarus, ‘Assimilating Environmental Protection into Legal Rules and the Problem with
Environmental Crime’ (1994) 27 Loyola of Los Angeles Law Review 867, at 882, cited in Kidd, ‘The Use of
Strict Liability’, at 39.
32 Lazarus, ‘Meeting the Demands of Integration in the Evolution of Environmental Law’, at 2442–3.
requires a higher level of proof for conviction than does a civil case: in common law countries
this divergence is represented by the difference between the beyond all reasonable doubt,
and balance of probabilities tests. Environmental law struggles with causation, even on a
balance of probabilities approach, and so proof of causation of harm, or even the creation
of an actionable risk beyond all reasonable doubt is therefore, problematic, especially in
cases of cumulative or diffuse source harms.33 This creates a pressure to move away from the
‘but for’ causal tests usual in such contexts, to some other test for causation.34 Second,
the difficulties of scientific certainty mean that there will always be many disputes as to
the precise causal mechanics for any particular harm. As a result, the problems of proof
will be exacerbated and there will be pressure not only to use an alternative test for caus-
ation, but actually to lower the burden of proof. Both of these elements—the test to be used,
and the level of proof required—can result in tension in the use of criminal law to protect
the environment.
In addition, in an environmental context, as Faure and Visser have convincingly argued,
questions of burden of proof and evidence are often linked to public administration and
technical expertise due to the linking of criminal offences and environmental permitting.35
This raises the question, ‘[i]s there, in other words, still room for the classic autonomy of the
criminal law, given the large dependence of environmental criminal law upon administrative,
or at least, technical decisions and/or information?’.36
Some jurisdictions have responded to this by recognizing that certain procedural questions
must bend to reflect the scientific uncertainties inherent in environmental regulation. Thus,
for example, the Philippines Supreme Court procedural rules created specifically for envir-
onmental cases states that, ‘the Rules should shape procedural elements of environmental
litigation to implement the basic tenets of the precautionary principle’,37 and regulation
on the basis of the precautionary principle in a criminal context will involve modulations
(at the very least) in the way questions of evidence and proof are handled.
An alternative approach is to consider not whether the offender caused a real harm
(for more on harm, see below), but rather to look for proof that they created a risk, but this
raises problems of its own as means by which criminal liability is imposed. Lazarus makes
this argument, stating, ‘[t]he offenses cannot simply be defined in terms of the immediate
33 See R. Fumerton, and K. Kress, ‘Causation and the Law: Preemption, Lawful Sufficiency, and
Casual Sufficiency’ (2001) 64 Law and Contemporary Problems 83–105; T. Honoré, ‘Causation in the Law’
in E. N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (Winter 2010 Edition), available at: http://
plato.stanford.edu/archives/win2010/entries/causation-law/; E. Lees, ‘Responsibility and Liability for
Climate Loss and Damage After Paris’ (2017) 17 Climate Policy 59; R. Wright, ‘Causation in Tort Law’ (1985)
73 California Law Review 1735–828.
34 S. F. Mandiberg, ‘Locating the Environmental Harm in Environmental Crimes’ (2009) 4 Utah
Law Review 1177, at 1202–4; S. F. Mandiberg and M. Faure, ‘A Graduated Punishment Approach to
Environmental Crimes: Beyond Vindication of Administrative Authority in the United States and
Europe’ (2009) 34 Columbia Journal of Environmental Law 447, at 478.
35 M. Faure and M. Visser, ‘How to Punish Environmental Pollution? Some Reflections on Various
Models of Criminalization of Environmental Harm’ (1995) 4 European Journal of Crime, Criminal Law
and Criminal Justice 316.
36 Ibid., at 317.
37 Republic of Philippines Supreme Court, A.M. No. 09-6-8-SC, ‘Rules of Procedure for Environmental
Cases’, available at: http://plj.upd.edu.ph/wp-content/uploads/2012/12/Environmental_Rationale.pdf
(Manila, 2010).
1134 emma lees
harm they cause. They instead need to be defined in terms of the risks they create’.38 In this
way, the actionable harm is actually the risk creation, and not some ‘real life’ effect. This is
not an uncontroversial mode of regulation, however, and is particularly complex when con-
sidering two- and three-step offences where the offence is constituted not by creating a risk
per se, but by breaching a licence created as an exercise of administrative discretion. This
licence will not even necessarily represent the decision-maker’s assessment as to what con-
stitutes risk, but where it is a bespoke licence, for example, may well constitute a negotiated
compromise document so that the act which the offender performs, although posing no
proof problems, may well be an act which causes no harm at all, nor even creates a risk. The
offence is the abstract harm or risk caused by the breaching the licence.
Thus, regulating to prevent risk creation poses two initial difficulties for criminal law.
First, it calls into question the causation test that should be applied, and it calls into question
the burden of proof to be used. The obvious solution to these two problems is to recharac-
terize what is being prohibited. Rather than seeing the criminal law offence as being the
creation of a real life harm, we instead characterize it as being the creation of a demon-
strable risk. However, where the offence is a two- or three-step offence, it is not even clear
that there is a demonstrable risk from the particular action of the offender, and nor is it
necessary to prove as such. Rather, because the definition of the actus reus of the offence (in
terms of what the defendant has actually done) is one at the administrative discretion of an
agency decision-maker or local authority, whilst the offence is constituted by breaching a
licence, the real world effects of the act which constitutes that breach may not actually cause
any demonstrable harm or any demonstrable risk beyond the further risk that others may
breach their own licence if the offender were to go unpunished. Whilst it may be desirable
to regulate to prevent this occurring, as a matter of criminal law theory, it is difficult to jus-
tify this sort of offence with the twin factors of potential loss of liberty or large fine, and the
stigma of criminal law.
49.3.3 Interpretation
Proof and procedural questions about evidence aside, there is a further issue for courts
when adjudicating environmental criminal law, relating to questions of interpretation. This
is primarily a problem for one-step offences. Two- and three-step offences tend to be more
straightforward to interpret since they are constituted by a breach of a pre-existing licence
or enforcement notice. One-step offences however, as explained above, tend to be drafted in
very broad terms to ensure the flexibility which environmental law so craves. However,
even when taking a purposive approach to interpreting those broad and flexible terms, the
interpretive task is no easy one as discussed at length elsewhere.39 This gives rise to the
problem of the law acting as a guide to behaviour, and therefore complying with rule of
law values and the principle of legal certainty, something particularly important when the
criminal law is involved. As Gardner explains, ‘[i]f the law cannot even be a source of reli-
able guidance in the courtroom, how can it be a source of reliable guidance in the pub or in
39 See Lees, Interpreting Environmental Offences.
the street?’.40 If the law cannot be a reliable guide to behaviour ‘in the pub or the street’ it
cannot act as a successful deterrent. However, more importantly, it is also difficult to justify
imprisonment/sanction of a fine, in such circumstances. If a person did not know that what
they were doing was prohibited, and could not, reasonably, have known that was the case
(especially where there is a divergence between a literal and a purposive interpretation),
then should we punish them for having acted? There are justifications for doing so but the
problem does still cause some unease. In ‘normal’ criminal law, this problem is often solved
by simply resolving any interpretive difficulties in favour of the defendant, but it is clear that
this cannot be the uniform solution in environmental law given how open-textured many
of these offences are.
Furthermore, there are fears that such broadly defined terms and approaches to inter-
pretation will lead to over-enforcement. As Russo explains, ‘[t]he mere fact that these envir-
onmental statutes are written so broadly, yet with so much complexity, invites overzealous
prosecutors to abuse their discretion in enforcing these environmental statutes’.41 Whether
this is a real problem, or merely a reflection of the potential for fear of such over-enforcement,
it is still important to reflect in what the twin choices of broad definitions and a huge amount
of prosecutorial discretion can result, and what safeguards are in place to prevent abuse.
Usually, judicial interpretation would act as a control mechanism, but as has been discussed
elsewhere, judicial approaches to environmental protection often involve widening, not
narrowing, the relevant definitions.
49.3.4 The Harm Principle and Moral Certainty

Finally, the use of criminal law in particular brings into play the theoretical underpinnings
of criminal law, that is, the prevention of harm to others.42 How can we reconcile this focus
on anthropological harm43 with the intergenerational and sometimes ecocentric values
that such regulation implies?44 Indeed, when the various frontiers of the conflicts between
environmental law and criminal law are considered—strict liability, the criminalization of
risk creation, the need for interpretive flexibility, and evidential pragmatism—the single
thread which runs through these conflicts is the conflict which exists in terms of the moral
stigma, or lack thereof, in many of these activities given the lack of harm to other persons.
Of course, the vast majority of environmental crime—deliberate, demonstrably illegal at
the time the act takes place, and immediately harmful, such as fly-tipping, waste smuggling,
40 Gardner, ‘Rationality and the Rule of Law in Offences Against the Person’, at 512.
41 Russo, ‘Criminal Prosecution for Environmental Lawbreakers’, at 104.
42 Faure and Visser, ‘How to Punish Environmental Pollution?’, at 321; M. M. O’Hear, ‘Sentencing the
Green Collar Offender: Punishment, Culpability and Environmental Crime’ (2004) 94 Journal of Criminal
Law and Criminology 133; Mandiberg, ‘Locating the Environmental Harm in Environmental Crimes’, at
1198; and Mandiberg and Faure, ‘A Graduated Punishment Approach to Environmental Crimes’, at 448.
For a discussion of the role of harm generally in environmental law, see P. Cane, ‘Are Environmental
Harms Special’ (2001) 13 Journal of Environmental Law 3; A. C. Lin, ‘The Unifying Role of Harm in
Environmental Law’ (2006) Wisconsin Law Review 897; T. S. Aagaard, ‘Environmental Harms, Use Conflicts
and Neutral Baselines in Environmental Law’ (2011) 60 Duke Law Journal 1505.
43 Mandiberg and Faure, ‘A Graduated Punishment Approach to Environmental Crimes’, at 450.
44 Mandiberg, ‘Locating the Environmental Harm in Environmental Crimes’; Mandiberg and Faure,
‘A Graduated Punishment Approach to Environmental Crimes’.
1136 emma lees
etc.—would be the subject of popular moral censure whether or not the act was prohibited
by the criminal law. This would give any ensuing legal prohibition ‘moral certainty’. By
moral certainty here is meant the idea that criminal law is at its most certain, in a substantive
sense, and therefore most easily applied, most uncontroversially accepted as a justification
for imprisonment, and most readily enforced, when the act is one which draws censure.
Where the act is not one which, by its nature, is usually the subject of moral condemnation,
not only does the popular attitude to the rule change, but so does its certainty, and therefore
the predictability of its scope.
To demonstrate by way of example, torturing another without any conceivable purpose
other than the enjoyment of their suffering, would be condemned by almost all persons.
Any rule which prohibits torture in this sense, however poorly drafted, therefore, has a
degree of moral certainty which should make its enforcement straightforward and judicial
interpretation of it a relatively easy task. By contrast, rules like those relating to waste crime,
which cover non-intentional ‘depositing’ of material which its holder intends to discard, must
be discarded or has been discarded, cannot be said to achieve the same degree of moral
clarity. When are non-intentional ‘deposits’ (whatever they are), worthy of moral blame if
they do not cause a demonstrable harm to another person? Similarly, how can a failure to
pay a huge sum to clean up soil when the act which polluted the soil—let us say, the storage
of a small oil drum in a garage—was carried out by another person, eighty years previously,
and the person now obligated to pay for the remediation did not even know the drum had
ever been there—be considered to be an act which would justify a jail term when the only
person being harmed by the pollution is the owner of the land themselves? The lack of moral
condemnation for the act itself, makes the interpretation and enforcement of the rules more
difficult. This, it appears, when the above sections are considered, is really the difficulty
which environmental criminal law now faces.
But the lack of demonstrable harm to others is not the only reason why there is moral
unease here. Partly, as Lazarus explains, it is also because environmental criminal law was
introduced, in many countries, aspirationally: ‘[e]nvironmental statutes reflect the nation’s
aspirations for environmental quality. They were not intended to codify existing norms of
behavior, but to force dramatic changes in existing behavior’.45 Similarly, Russo argues that
‘the criminal consequences convey a message to the public that pollution is abhorrent to
the country’.46 However, reconciling this argument—that the criminal law can be used
to changed moral attitudes within a state—with the theoretical need for blameworthiness,
harm, and culpability, is not easy. Furthermore, the problems caused by this clash in terms
of principle can also be practical, making the deterrent provided by the criminal law less
effective, the discretion of regulatory authorities less bounded, and the interpretation of
provisions by the courts more difficult.
49.4 Conclusion
When utilizing criminal law as part of our regulatory systems attempting to protect the
environment, therefore, we ask a lot of it, and very often criminal law is simply invoked
46 Russo, ‘Criminal Prosecution for Environmental Lawbreakers’, at 101.
without considering the clash of principles explained here. We require criminal law principles
to be shaped, and sacrificed, to allow the necessary regulatory interventions which are
either based on strict liability, adjusted standards of proof, or, most seriously of all, applied
retrospectively, without examining the consequences of this in both theory and practice.
However, the goal must be to ensure that the principles of each system work together to
produce acceptable outcomes. As Lazarus explains:
The fundamental fairness of the criminal incarceration sanction—one of the most severe
imposed by the law is undercut by any incoherence and inconsistency in its imposition. They
sap the sanction of its legitimacy and invite, just as has happened in environmental criminal
law, accusations of government abuse both when those sanctions are imposed and when
they are not.47
The incoherence which results from the conflicts which emerge in relation to environmental
and criminal law thus risk the effectiveness of both. However, given the very nature of many
environmental problems, as clearly demonstrated in this book, it is likely that these tensions
can never be removed entirely. Rather, it is important that where the principles of each
system are being asked to bend to the will of the other, that this is done openly. Perhaps it is
ironic, given the content of much environmental law scholarship concerning the instru-
mental use of law in general and the criticisms of that, for us to expect that criminal law can
be used instrumentally to achieve a certain end. Just as environmental law cannot be con-
structed to achieve a certain outcome without engaging with the principles of environmental
law, nor too can criminal law be treated in this way.

Faure, M., ‘A Graduated Punishment Approach to Environmental Crimes: Beyond Vindication of
Administrative Authority in the United States and Europe’ (2009) 34 Columbia Journal of
Faure, M., ‘The Revolution in Environmental Criminal Law in Europe’ (2017) 35 Virginia Environmental
Law Journal 321.
Faure, M. and M. Visser, ‘How to Punish Environmental Pollution? Some Reflections on Various
Models of Criminalization of Environmental Harm’ (1995) 4 European Journal of Crime, Criminal
Law and Criminal Justice 316, at 321.
Lazarus, R., ‘Assimilating Environmental Protection into Legal Rules and the Problem with
Environmental Crime’ (1994) 27 Loyola of Los Angeles Law Review 867.
Lazarus, R. J., ‘Meeting the Demands of Integration in the Evolution of Environmental Law: Reforming
Environmental Criminal Law’ (1995) 83 Georgetown Law Journal 2407.
Lees, E., Interpreting Environmental Offences (Oxford: Hart Publishing, 2015).
2010).
Mandiberg, S. F., ‘Locating the Environmental Harm in Environmental Crimes’ (2009) 4 Utah Law
Review 1177, at 1202–4.
1138 emma lees
Mandiberg, S. F. and M. Faure, ‘A Graduated Punishment Approach to Environmental Crimes:
Beyond Vindication of Administrative Authority in the United States and Europe’ (2009) 34
Columbia Journal of Environmental Law 447.
O’Hear, M. M., ‘Sentencing the Green Collar Offender: Punishment, Culpability and Environmental
Crime’ (2004) 94 Journal of Criminal Law and Criminology 133.
Russo, C. M., ‘Criminal Prosecution for Environmental Lawbreakers: A Statute with No Bite’ (2017)
28 Villanova Environmental Law Journal 97.
CHAPTER 50
a n d Pr i vate
I n ter nationa l L aw
Geert van Calster

50.1.1 General Context 1140
50.1.2 Corporate Social Responsibility as the General Backdrop
of the Analysis 1141
50.2 The United States: Litigation Based on the Alien Tort Statute 1142
50.2.1 ATS Discovered by the CSR Community 1142
50.2.2 Corporate Liability Under ATS and the Setback Under Kiobel1144
50.2.3 The ‘Touch and Concern’ Test of the USSC in Kiobel1145
50.2.4 Post-Kiobel Case-law 1146
50.2.5 Summary on the United States 1148
50.3 The European Union 1148
50.3.1 Jurisdiction 1148
50.3.1.1 General Jurisdictional Rule: Article 4
of the Jurisdiction Regulation 1148
50.3.1.2 Special Jurisdictional Rule: Article 7(5) Jurisdiction
Regulation: Operations Arising Out of a Branch 1152
Regulation: Tort 1153
Regulation1153
50.3.1.5 Review of the Jurisdiction Regulation—The
‘International Dimension’ of the Regulation 1153
50.3.1.6 Applicable Law 1153
50.3.2 Applicable Law for Attributability/Duty of Care,
and Compliance Strategies 1155
50.3.2.1 Inspiration from Competition Law? 1156
50.3.2.2 Outside of Competition Law 1156
50.3.2.2.1 Jurisdiction 1157
1140 geert van calster
50.3.2.2.2 Applicable Law for Tortious

Misrepresentation1157
50.3.2.2.3 Applicable Law for Piercing the
Corporate Veil 1158
50.1 Introduction
50.1.1 General Context

Private international law (also known as ‘conflict of laws’, particularly in the common law)
talks a language that is quite different from the other chapters in this volume.1 There are three
distinct processes in private international law. Jurisdiction: that is, what court has jurisdiction
to hear the case; applicable law, or ‘governing law’: that is, what law will that court apply; and
finally recognition and enforcement of foreign judgments: how, if at all, will the judgments
from one court generate effect in the territory of another. Private international law is generally
considered to be part of a state’s civil procedure rules.
There is less international harmonization of private international law than one might
expect, with the exception of within the boundaries of the European Union (EU). Since the
1997 Treaty of Amsterdam, which introduced a more favourable legal basis for what is known
in the EU as ‘Justice and Home Affairs’, the EU has harmonized private international law in
a growing number of areas.
There is most certainly regulatory competition in civil procedure generally. Companies
or individuals choosing, for various reasons, one state’s courts and/or laws over another,
employ what is known as ‘forum shopping’. A more general phenomenon, less specific
than the use of civil procedure, is location advice and the consequential establishment of a
company in one jurisdiction rather than the other. This leads to suggestions of ‘pollution
havens’, with a company moving to one particular state purely by reason of that country’s
lax environmental laws and/or their enforcement. Despite being regularly touted as real,
pollution haven theory rarely manifests itself in practice—however this is not covered by
this chapter.
1 I have written before on this issue. The current chapter is in part a reworked version of a previous
status quo of my analysis which appeared as ‘The Role of Private International Law in Corporate Social
Responsibility’ in Erasmus Law Review (2014) 3 125–33. See for general analysis C. Bernasconi, ‘Civil
Liability Resulting from Transfrontier Environmental Damage: A Case for the Hague Conference?’
(1999) Hague Yearbook of International Law 39 and 54–5; M. Bogdan, ‘The Treatment of Environmental
Damage in Regulation Rome II’ in J. Ahern and W. Binchy, The Rome II Regulation on the Law Applicable
to Non-contractual Obligations (Leiden: Martinus Nijhoff, 2009), 219–30; K. Fach Gomez, ‘The Law
Applicable to Cross-Border Environmental Damage: From the European National Systems to Rome II’
(2004) Yearbook of Private International Law 291–318; C. Von Bar, ‘Environmental Damage in Private
International Law’ (1997) Recueil des Cours 360ff.
environmental law and private international law 1141
50.1.2 Corporate Social Responsibility as the General

Backdrop of the Analysis
Very few companies are in the business of corporate atrocity.2 That being said, multinational
companies do of course operate in countries with less than optimal environmental laws
and the central concern of the chapter is how the different elements of wider private
international law operate to shape how any environmental harm is remedied in such a context.
A current debate is whether within the context of Corporate Social Responsibility (CSR),
the activities of these companies in those states could be made subject to the national laws
of their home jurisdiction.
Environmental protection and human rights are core elements of CSR, ‘a concept whereby
companies integrate social and environmental concerns in their business operations and
in their interaction with their stakeholders on a voluntary basis’,3 or ‘the responsibility of
enterprises for their impacts on society’.4 The latter definition aligns the EU approach to CSR
with international developments, in particular the Ruggie report.5
For the sake of this chapter, and with some flexibility, I will suggest that CSR is for the time
being the ‘softer’ law in disciplining companies for their activities abroad.6 Conflict of laws is
the more established, ‘hard’ way to reach result. The United Nations has, perhaps somewhat
optimistically, referred to the ‘extraterritorial’ application of national law as a key element in
operationalizing human rights, labour rights, and environmental protection. This proposition
suggests ‘developed’ countries with strong regulatory law (environment, human rights, labour,
even tax) ought to design their laws and their courts’ application of same in a manner which
catches corporate behaviour outside their territory. In this way, as long as there is some, even
tenuous, link to the developed state in question (through corporate headquarters, shareholder
structure, board meetings, marketing of goods and services into those countries, etc.), the
laws of that state would be used as a jack for regulatory performance abroad. The United States
have been keen in recent years to pursue this route for a select number of statutes, particularly
in the area of corruption and export controls. In the EU, the debate has been more generically
2 Judge Jacobs for the majority in Kiobel v Royal Dutch Petroleum, en banc, 642 F.3d 271, available at:
http://bit.ly/2gA1QGT: ‘Examples of corporations in the atrocity business are few in history. I.G. Farbenindustrie
Aktiengesellschaft would be one example from the 20th century (though the Nuremberg Tribunal did not
indict). Earlier in the century, the human rights abuses in the rubber plantations of the Peruvian Amazon
Company were exposed by Roger Casement’s Putumayo Report. That would make, to my knowledge, two
instances in the previous century, neither of which was the subject of ATS litigation; so I consider that the
doctrinal principle is not of appreciable importance. (The Abir Congo Company, which ran the Belgian
Congo for Leopold II, might be a 19th Century example, except that it was a kind of royal Subchapter S.).’
3 European Commission, 2001: COM(2001) 366. 4 Ibid., at 681.
5 Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect,
Respect and Remedy’ Framework, 2011, available at: http://www.ohchr.org/Documents/Publications/
GuidingPrinciplesBusinessHR_EN.pdf.
6 I say ‘with some allowance’. I am of course aware that in the CSR community, efforts are made to
turn its principles into hard law, including in the areas of making corporations subjects of public inter-
national law, and in employing reporting duties as a way to boost the legal impact of CSR principles.
See S. Bijlmakers, The Legalization of Corporate Social Responsibility: Towards a New Doctrine of
International Legal Status in a Global Governance Context (Abingdon: Routledge, 2018), and see e.g. the
2017 French supply chain liability Act, Loi relative au devoir de vigilance des sociétés mères et des entre-
prises donneuses d’ordre.
focused on how conflict of laws could be employed to increase application of EU law to

companies abroad. Considering these two jurisdictions particularly allows for insight into the
more general question as to how conflicts of laws and the softer CSR operate in respect of
protection of the environment. They are used as a lens to shine light on issues which arise in
a multitude of jurisdictions, but which it is not possible here to analyse in any great detail.
These developments join an older cousin in the use of highly regulated countries (and
their courts) in attempting to up the regulatory stakes in the developing (or less regulatory
stringent) world. The US case-law on the Alien Torts Statute is often cited as the textbook
example of employing national and international law, applied by national courts, to further
the international community’s response to environmental and other harms. This case-law
was, however, reversed by the same circuit which launched its application, and has subse-
quently been drastically curtailed by the United States Supreme Court.
This chapter therefore first reviews developments in the EU and in the United States
concerning conflict of laws, demonstrating the central questions which any such regime must
address, especially when dealing with extraterritorial harms. The eye-catching developments
in the United States concern the application of public rather than private international law.
Public international law is the subject of a separate chapter in this volume. It is however the
commonality of object (the regulatory jack identified above) of both developments that this
chapter is concerned with, rather than distinction in modes of delivery. The chapter concludes
with reference to the applicable law for attributability. Throughout this comparative study,
the general faultlines of the role which private international law can play in environmental
protection will become clear.
From the outset, it is useful to explain some overall terminological lines of analysis. I first
review litigation in US courts on basis of the Alien Tort Statute. Applicable law in these cases
is always public international law (often human rights or environment related). That is, the
standards applied are derived from public international law. However, it is very often the juris-
dictional trigger which is the bone of contention and this is a matter of private international
law. The EU analysis focuses on both jurisdiction, and applicable law since both are a matter
for private law within the individual Member States and the Union as a whole. The central
point of litigation here is the issue of the duty of diligence of a mother company for its
daughters’ and related undertakings’ activities. This is different from ‘piercing of the corporate
veil’ cases. The latter strictly speaking only concerns holding shareholders liable for the com-
pany’s misdoings. The difference in focus of the two systems is itself telling, and emphasizes
how selecting one viewpoint for considering, in particular, extraterritorial environmental
harm—be that as a matter of wider CSR, or as a matter of a breach of internationally accepted
standards—shapes technical questions about jurisdiction, applicable law, and enforceability.
50.2 The United States: Litigation

Based on the Alien Tort Statute
50.2.1 ATS Discovered by the CSR Community

The Alien Tort Statute (ATS), a product of the United States’ first congress, creates a
domestic forum for violations of international law. It is litigation based on the ATS which
forms the centrepiece of how the law in the United States might further the international
CSR agenda.
It is noteworthy that over and above the ATS controversy which I review below, more
classic problems involving, in particular, recognition and enforcement, have an impact on
the CSR debate, too. There is no better illustration than the case which is informally known
as Ecuador v Chevron,7 which goes back to Chevron’s acquisition of Texaco, and the pollu-
tion caused by Texaco operations in the area affected in the 1980s and ‘90s. The case throws
light on the difficulties which arise in enforcing a judgment of a third country in a jurisdiction
such as the United States. Chevron essentially argued that rule of law principles had been
violated in the Ecuadorian rulings as to liability, consequently barring enforcement in the
United States. (It is interesting to note in this respect that rule of law considerations, in
particular rights of the defence, are one of the very few grounds which may lead an EU
court to reject enforcement of a judgment of another EU court, under the Brussels I (Recast)
Regulation.8 The hesitation by US courts to enforce the Ecuadorian judgments will therefore
not be entirely alien to EU ears.)
Turning to the subject of the current subsection, the relevant text of the ATS reads: ‘[t]he
district courts shall have original jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the United States’.9 Though there has
been some debate over the original intention of Congress in creating the statute, the accepted
use of ATS litigation, in its broadest terms, has become one in which aliens may bring suits
against other foreign nationals or American citizens for breach of commonly accepted
international norms. The statute remained unused in the courts for roughly 200 years after
its creation until Filartiga v Pena-Irala (1980).10 The United States Second Circuit Court
of Appeals, the court that serves Connecticut, New York, and Vermont, upheld the claims of
the defendants, Paraguayan nationals, that the rights of their family member, as defined by
international law, were violated when another Paraguayan tortured and killed him.
Following the success of the trial, ATS litigation has had an increased presence in US
courts, though the vast majority of claims do not find the success that Filartiga did. Of note
is that the statute can also be used proactively: one need not wait for alleged violations of
relevant legal standards to seek to seize a court.11
The ATS case most commonly cited in scholarly attempts to define the statute and its
acceptable uses is Sosa v Alvarez-Machain (2004).12 The case significantly narrowed the
scope of jurisdiction in ATS cases. The court held that in order to qualify for ATS, a plaintiff
must provide significant evidence for the violation of well-defined and universally accepted
norms of common international law. Sosa made clear that the statute was not intended to be
read broadly and, as such, future courts should be conservative in terms of recognizing new
violations of international law. The Court writes, ‘[t]he judicial power should be exercised
on the understanding that the door is still ajar subject to vigilant doorkeeping, and thus
open to a narrow class of international norms today’.13,14
7 For the most recent state of affairs, see the author’s blog at: http://www.gavclaw.com.
8 Regulation 1215/2012, OJ [2012] L351/1. 9 Alien Tort Statute, 28 U.S.C. § 1350(2000).
10 Filartiga v Pena-Irala, 630 F.2d 876, 878 (2d Cir. 1980).
11 See for instance Institute of Cetacean Research v Sea Shepherd Conservation Society, No. 11-cv-2043
(W.D. Wash. 20 December 2015).
12 Sosa v Alvarez-Machain, 124 S. Ct. 2739, 2769 (2004). 13 Ibid.
14 D. D. Caron and R. M. Buxbaum, ‘The Alien Tort Statute: An Overview of Current Issues’ (2010)
28(2) Berkeley Journal of International Law 514.
Post-Sosa, plaintiffs were burdened with the task of not only proving that a defendant has
violated international law, but that the international law in question is amply defined as well
as a universally accepted and documented international norm. In the original text of the 1789
statute, there were three requirements: the plaintiff had to be an alien, allege a tort, and offer
evidence towards the defendant’s guilt in violation of ‘the law of nations’. The specific ‘law of
nations’ was not further defined in the original text of the document but with the 200-year
gap in cases using ATS, the language did not become controversial until recent years.
50.2.2 Corporate Liability Under ATS and

the Setback Under Kiobel
Whether corporations may be held liable for violations of international human rights law
has long been a topic of debate in the legal community. At the Nuremberg trials, various
German industrialists were convicted of war crimes, including the use of slave labour.15
However, while the Nuremberg Courts were allowed to find organizations guilty of war
crimes, they could do so only through the trial of an individual. Essentially, a corporation
could be found criminal but could not be tried separately, only through an individual who
facilitated the corporation’s criminal enterprises.16
The Nuremberg trials are relevant to American ATS litigation in that their precedents are
often consulted by judges in ATS cases. Notably, in Kiobel v Royal Dutch Petroleum (2010),17
the Second Circuit Court’s verdict relied heavily on precedents set by international tribu-
nals, including the Nuremberg trials, in relation to corporate liability for violation of
international law.18
In recent years, the debate has become more focused on the question of corporate
culpability for violations of human rights, rather than simply corporate liability. Plaintiffs
often find corporations a desirable opponent as they do not have sovereign immunity
and if the trial is successful, corporations’ resources can more readily be used to compen-
sate plaintiffs.
Kiobel (Court of Appeal) found that, due to what it perceived as a lack of precedent in
international law, corporations cannot be held liable for violations of customary international
law in US courts under ATS litigation.19 However, this decision only added to a growing list
of corporate ATS cases with incongruent results. In Doe I v Unocal Corporation (2002),20
the Ninth Circuit Court unanimously decided that corporations can be sued for aiding
and abetting foreign human rights violators. Similarly, in Khulamani v Barclay National
15 D. Cassel, ‘Corporate Aiding and Abetting of Human Rights Violations: Confusion in the Courts’
(2008) 6(2) Northwestern Journal of International Human Rights 306.
16 Ibid., at 315.
17 Kiobel v Royal Dutch Petroleum Co., 621 F. 3d 111 (2d Cir. 17 September 2010).
18 J. R. Crook, ‘Contemporary Practices of the United States Relating to International Law:
International Human Rights: Second Circuit Panel Finds Alien Tort Statute Does Not Apply To
Corporations’ (2011) 105 American Journal of International Law 139.
19 Ibid.
20 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).
Bank Limited (2007),21 the court agreed that corporations can be held liable for aiding
and abetting in violations of international law.22
This lack of congruency among ATS cases involving corporations was largely due to the fact
that most of the cases are presented before the circuit courts rather than the Supreme Court.
50.2.3 The ‘Touch and Concern’ Test of the USSC in Kiobel

The USSC’s eventual finding in Kiobel23 was therefore eagerly awaited. The central question
in the Court’s finding in Kiobel turned out to be this: whether and under what circumstances
US courts may recognize a cause of action under the Alien Torts Statute, for violations of
the law of nations, occurring within the territory of a sovereign other than the United States.
In focusing on this question (and replying in the negative), the Court did not entertain the
question which actually led to certiorari, namely whether the law of nations recognizes
corporate liability.
Certiorari at the Supreme Court was keenly awaited by the CSR community, for, as noted,
ATS litigation by default had become the flag bearer for pursuing alleged violations of inter-
national law (whether in human rights or environment) by multinational corporations.
Before Kiobel, extraterritorial application of US law had been under consideration in
Morrison v National Australia Bank,24 in the area of securities. In Kiobel, the Court relied on
its extensive review of extraterritoriality in Morrison. It did so even if in Morrison (and
other cases before it), the question of extraterritoriality was one of merits (also known as
‘jurisdiction to prescribe’): that is, whether an Act of Congress regulating conduct, applies
abroad. By contrast, in Kiobel, the question concerns jurisdiction pur sang (also known as
jurisdiction to adjudicate). For the Court, this did not dent the precedent value of Morrison:
‘we think the principles underlying the canon of interpretation similarly constrain courts
considering causes of action that may be brought under the ATS’.
In Morrison, the Court held that when a statute gives no clear indication of an extraterri-
torial application, it has none. In Kiobel, the Court did not find convincing argument in
either the text, history, or purpose of the ATS, which could rebut the presumption against
extraterritoriality. The closest such rebuttal arguably lay in the historic (and more current)
examples of employing ATS against piracy. As the Court notes:
piracy normally occurs on the high seas, beyond the territorial jurisdiction of the United
States or any other country, [however] applying U. S. law to pirates does not typically impose the
sovereign will of the United States onto conduct occurring within the territorial jurisdiction
of another sovereign, and therefore carries less direct foreign policy consequences.
The latter of course is where the core of the argument lies, and where public and private
international law principles of comity come into play: the degree to which in upholding
jurisdiction, the courts in ordinary might be obstructing US foreign policy.
This in my view is particularly interesting when one considers the communis utilitatis
roots of modern conflict of laws The conviction in Dutch conflict of laws in the seventeenth
21 Khulumani v Barclay Nat’l Bank Ltd, 504 F.3d 254 (2d Cir. 2007).
22 Cassel, ‘Corporate Aiding and Abetting of Human Rights Violations’, at 319.
23 USSC No. 10–1491 decided 17 April 2013. 24 No. 10–1491 decided 24 June 2010.
century (later exported via Scotland to the United States), that foreign laws needed to be
applied if and when they so wanted, on the basis of reciprocity, and in line with communis
utilitatis has now been turned on its head: comity is now being used as a presumption
against such application of foreign laws or, here, public international law.
The Supreme Court concluded as follows:
On these facts, all the relevant conduct took place outside the United States. And even where
the claims touch and concern the territory of the United States, they must do so with sufficient
force to displace the presumption against extraterritorial application. See Morrison, 561
U.S. ___ (slip op. at 17–24). Corporations are often present in many countries, and it would
reach too far to say that mere corporate presence suffices. If Congress were to determine
otherwise, a statute more specific than the ATS would be required.
The Court therefore answered Kiobel-type cases (a foreign plaintiff suing a foreign defend-
ant for acts or omissions occurring wholly outside of the United States that allegedly violate
the law of nations), however it did leave open many questions which fall outside the factual
Kiobel box. Of note is that in the meantime Mrs Kiobel is suing Shell before the Dutch
courts, using the US Foreign Legal Assistance Statute to be able to employ the documents
unearthed in discovery in the United States, in the Dutch proceedings.
Does the reference to ‘claim’ and ‘territory’ of the United States refer to the tortious action
(thus requiring that to take place in the United States) or would a US defendant suffice (in all
likelihood: no)? What ‘link’ would be enough for the action to take place in the United States:
in particular, lack of corporate oversight over foreign subsidiaries?
50.2.4 Post-Kiobel Case-law
Further explanation of the USSC test in Kiobel was/is required and indeed the question
ended up at the Supreme Court again: the United States Supreme Court on 14 January 2014
rejected US jurisdiction in Daimler v Bauman.25 Chief Justice Roberts’ and concurring
opinions in Kiobel as noted above left room for further distinguishing. Daimler does less so.
The Court in the end did not focus too much on the issue of agency and attributability of a
subsidiary’s actions to the parent company. (Daimler is a German corporation that was sued
in California by Argentinian plaintiffs for human rights violations in Argentina. The
Californian link was a subsidiary which distributes cars there but which is not incorporated
there: its corporate home is Delaware). Per International Shoe,26 general jurisdiction other
than in the state of incorporation applies only (in the case of foreign companies) when a
foreign company’s ‘continuous corporate operations within a state [are] so substantial and
of such a nature as to justify suit against it on causes of action arising from dealings entirely
distinct from those activities’.
Daimler therefore establishes firmly that if one wants to sue a company on the basis of its
having its ‘home’ in the forum, then that home better be exactly that. Not, as here, merely a
condo in the United States when its true home lies in Germany.
25 USSC No. 11–965.

26 International Shoe v State of Washington—326 U.S. 310 (1945).
Interestingly, (writing for the majority) Judge Ginsburg noted the difference between
the Court of Appeal’s approach and the EU approach when it came to overall personal
jurisdiction over corporations (she referred to the Recast Brussels I Regulation, 1215/2012,
which at that time was yet to apply but which in substance on this issue does not differ from
the previous version).27 However in reality there is quite a different direction (compared to
Daimler) which the EU takes vis-à-vis foreign corporations.
In Apartheid [Lungisile Ntsebeza et al v Ford General motors and IBM], the Southern
District of New York picked up the issue where SCOTUS had left it: can corporations be
held liable under the ATS for violations of ‘the law of nations’? Scheindlin USDJ gave judgment
on 17 April 2014.28 She held, first, that it is federal common law that ought to decide whether
this is so—not international law itself (ATS being a federal US statute). Next she argued that
the fact (see Jacobs J in Kiobel above29) that few corporations were ever held to account in a
court of law for violations of public international law was not instrumental in finding
against such liability.
Counsel eventually failed to convince the judge that the ‘touch and concern’ test put for-
ward by the Supreme Court in Kiobel was met. Scheindlin J had warned that they must
show in particular that the companies concerned acted ‘not only with the knowledge but
with the purpose to aid and abet the South African regime’s tortious conduct as alleged in
these complaints’. The USSC denied certiorari in June 2016.30 It had already denied certior-
ari in Chiquita31 in which the Court of Appeal had applied Kiobel restrictively. A recent
attempt at re-engaging the USSC was Bristol-Myers, in which the company in their January
2017 certiorari submission, emphasized the right of the defendant to have predictability in
the places where it might be sued: a sentiment which is often heard in EU private inter-
national law. The Supreme Court32 held that California did not have jurisdiction for claims
brought by non-residents. In her dissenting Opinion Justice Sotomayor notes the important
impact of the ruling, suggesting that a corporation that engages in a nationwide course of
conduct cannot now be held accountable in a state court by a group of injured people unless all
of those people were injured in the forum state.
Finally, in Jesner et al. v Arab Bank [USSC No.16-499] the Court not only held that the touch
and concern test was not met, but also discussed corporate culpability under international law.
Specifically, it denied it, at least in the case of conduct abroad. The Court emphasized:
• the foreign policy intentions of the ATS when it was originally drafted, hence the need
not to ignore the same foreign policy implications two centuries on;
• the continuing de lega lata situation on corporate culpability under international law:
the default position remains that corporations are not subjects of public international
law, and I would agree that it is hardly the role of the US Supreme Court single-handedly
to force the hand of the league of nations;
• that separation of powers in the United States, too, demands that Congress must intervene
should it want the statute’s causes of action to be broadened.
27 See ibid., at 23.

28 See http://opiniojuris.org/wp-content/uploads/17-Apr-SDNY-Opinion.pdf. 29 See n. 3.
30 Lungisile Ntsebeza, et al v Ford Motor Company et al, USSC No 15–2020.
31 Cardona v Chiquita and Doe v. Chiquita, U.S. Supreme Court, Nos. 14–777 and 14–1011.
32 USSC No.16–466. Decided 19 June 2017.
50.2.5 Summary on the United States

In summary, with Kiobel, Daimler, and Jesner v Arab Bank it is clear that the scope for ATS
litigation has been severely diminished. Attention may now be re-ignited in what has been
brewing in the EU for some time: using national courts to apply national law for conduct
abroad: in other words, classic private international law/conflict of laws coming to the lime-
light once again.
50.3 The European Union
In European private international law, as with the ATS, the two main concerns that arise
when addressing matters of corporate violation of rights are whether or not EU Member
State courts have jurisdiction and, if so, what laws, national or international, apply.33 In the
succinct review below, the analysis will be guided by the application of the ‘Brussels I’ Recast
Regulation, also known as the Judgments Regulation, the EEX Regulation, or even the JR.
This is the main piece of European harmonization, in the area of jurisdiction, for ‘civil and
commercial’ matters, that is, the mainstream of corporate and individual litigation.
50.3.1 Jurisdiction
50.3.1.1 General Jurisdictional Rule: Article 4 of the
Jurisdiction Regulation
Following the Brussels I Recast Regulation, it is enough for a court in an EU Member
State to establish jurisdiction if the defendant is domiciled in an EU Member State. For
corporations, this place is their corporate or registered seat. Consequently, truly multinational
corporations may in theory at least be quite easily pursued in the courts of an EU Member
State, even for actions committed outside of the EU, at least in terms of jurisdiction. The
principal jurisdictional ground of the defendant’s domicile, included in Article 4 of the
Jurisdiction Regulation, operates independently of the activities to which the action relates.
A good example of the ease in bringing a case against European holding companies in the
EU, is Milieudefensie et al v Shell.34 Shell’s top holding was hauled before a Dutch court by a
Dutch environmental NGO (Milieudefensie), seeking (with a number of Nigerian farmers) to
have the parent holding company held liable for environmental pollution caused in Nigeria.
The media were somewhat wrong-footed in reporting on the issue. Establishing jurisdic-
tion in an EU court vis-à-vis a company with seat in the EU, is not exactly complicated. It is
33 See V. Van Den Eeckhout, ‘Promoting Human Rights within the Union: The Role of European Private
International Law’ (2008) (105) European Law Journal 127.
34 English version of that judgment may be obtained from me by e-mail request. See for analysis also
L. Enneking, ‘The Future of Foreign Direct Liability? Exploring the International Relevance of the Dutch
Shell Nigeria Case’ (2014) Utrecht Law Review 44–54; C. van der Heijden, ‘De Shell Nigeria Zaak: de
eerste Nederlandse foreign direct liability zaak voor de civiele rechter’ (2013) 3 TVR 71–85.
a simple application of the Brussels I Recast Regulation. The European Court of Justice
(CJEU) has gone as far as to bar national courts from even pondering rejection of such
jurisdiction. In Case C-281/02 Owusu, the CJEU rejected forum non conveniens35 (the argu-
ment that there was a more suitable jurisdiction elsewhere) considerations in a case where
the only link to the EU was the incidental domicile of one of many defendants in the EU.
(The case concerned an action in tort. Defendants were largely Jamaica-based and the
events had taken place in Jamaica. Under European harmonization of applicable law, this
law was undoubtedly Jamaican law. The eventual judgment would have to be recognized
and enforced in Jamaica. Under English conflict of laws, an English court would have
undoubtedly relinquished jurisdiction in favour of Jamaica. Nevertheless, the EU approach
is that as a matter of jurisdiction, thanks to the domicile, the action should be heard before
a European court.)
What is interesting, is the fact that Milieudefensie and the individual applicants are also
pursuing the Nigerian daughter company in the Netherlands. In an interim ruling going
back to 2009,36 the court held that the case against the Nigerian daughter could prima facie
at least be joined with the case against the parent holding company. (The judgment on the
merits, which I refer to in more detail below, confirmed this interim finding.)
Pursuing a holding company with domicile in the EU, therefore, is easy from the juris-
dictional point of view. However subjecting that company to EU law (or the national
implementation thereof) is more challenging with respect to applicable law (see section
50.3.1.6).
Staying first with the jurisdictional level: being able to sue the parent company does not,
however, give one an easy day in court vis-à-vis any daughter companies. Corporate reality
dictates that even though the firms concerned may operate under one global brand, in
practice they are organized in separate corporate entities. As a result, one will find that
International Business Inc. is actually made up of most probably as many separate corporate
entities as the countries in which it operates. This reality of singular corporate domicile for
each daughter company rules out jurisdiction under the Brussels I Recast Regulation
vis-à-vis those daughters with a corporate seat outside of the EU.
For those companies lacking domicile in the EU, national conflicts law (in EU conflicts
jargon called ‘residual jurisdiction’) takes over, and this varies across the Member States.
Some EU Member States more readily accept jurisdiction against non-EU domiciled com-
panies than others. Some, for instance (notably, France), are fairly flexible allowing plaintiffs
with the nationality of the forum to bring cases to be brought against anyone incorporated
or domiciled anywhere. Others operate some form of forum necessitatis rule, allowing anyone
with a minimum contact with the jurisdiction, to sue in exceptional circumstances, typically in
some manner linked to the rule of law.
By way of example of the variety of approaches which exist on the question of suing
daughter companies, the English courts have recently been reluctant to add foreign sub-
sidiaries to a case being heard in the English court against the parent company registered in
England. In Okpabi v Shell 37 the only preliminary issue which the High Court had to settle
35 Forum non conveniens is a typical instrument of the common law. It allows a court to refuse to exer-
cise jurisdiction where it finds that another court is more naturally suited to hear the case.
36 BK8616, Rechtbank’s-Gravenhage, HA ZA 330891 09–579, Vereniging Milieudefensie et al v Royal
Dutch Shell plc and Shell Petroleum Development Company of Nigeria Ltd.
37 [2017] EWHC 89 (TCC).
at this early stage was whether Shell’s holding company (RDS), established in the United
Kingdom, could be used as the anchor defendant for proceedings against Shell Nigeria
(Shell Petroleum Development Company of Nigeria: SPDC). It held that it could not. The
questions dealt with were varied, and may be listed as follows:
1. Did the claimants have legitimate claims in law against RDS?

2. If so, was this jurisdiction the appropriate forum in which to bring such claims? This
issue encompasses an argument by RDS that it is an abuse of EU law for the claimants
to seek to conduct proceedings against an anchor defendant in these circumstances
given that the acts themselves were perpetrated by SPDC, the subsidiary.
3. If this jurisdiction was the appropriate forum, were there any grounds for issuing a
stay on case management grounds and/or under Article 34 of the Recast Regulation in
respect of the claim against RDS, so that the claim against SPDC can (or should) pro-
ceed against SPDC in Nigeria?
4. Did the claims against SPDC have a real prospect of success?
5. Did the claims against RDS involve a real issue which it was reasonable for the Court
to try; and was SDPC a necessary or proper party to the claims against RDS?
6. Was England the most appropriate forum for the trial of the claims in the interests of
all parties and for the ends of justice?
7. In any event, was there a real risk the claimants would not obtain substantial justice if
they were required to litigate their claims in Nigeria?
In detailed analysis, Fraser J reviewed inter alia Article 7 Rome II: the tailormade article
for environmental pollution in the determination of lex causae for torts (see also section
50.3.1.6). In the case at issue, Rome II did apply to at least some of the alleged facts. For
environmental pollution, a plaintiff has a choice under Article 7 Rome II. First, there is the
lex damni (i.e. applying the law of the place where the damage occurred, in this case Nigeria.
This was not of use here—the judgment discusses at some length on the extent to which
Nigerian law would follow the English common law in issues of the corporate veil and so
not allow the parent company to be held responsible for acts of the daughter). Or, second,
there is the lex loci delicti commissi (i.e. the law of the jurisdiction in which the harm was
committed).
The claimants argued, in effect, that the place the harm was committed was England due
to the presence of the holding company. This, the High Court suggested, could only be
accepted if two questions were answered in the affirmative.38 The first is whether the parent
company is better placed than the subsidiary to avoid the harm because of its superior
knowledge or expertise so that it would be justified to place repsonsibility for the occur-
rence of the harm onto the shoulders of the parent company. The second is, if the finding is
that the parent company is better placed, whether it is fair to infer that the subsidiary will
rely upon the parent. With reference to precedent, Fraser J suggested it is not enough for the
parent company simply to hold shares in the subsidiary companies.
The High Court eventually held that there was no prima facie duty of care that could be
established against the holding company, which would justify jurisdiction vis-à-vis the acts
38 Ibid., at [79].

of the daughter abroad in an English court. The Court mirrored the defendant’s argument:39
it was the Nigerian company, rather than the holding company, that took all operational
decisions in Nigeria, and the holding company did nothing by way of supervisory direction,
specialist activities, or knowledge, that would put it in any different position than would be
expected of a parent company. Rather, to the contrary, it was the Nigerian company that had
the specialist knowledge and experience—as well as the necessary licence from the Nigerian
authorities—to perform the relevant activities in Nigeria that formed the subject matter of
the claim. It was the specialist operating company in Nigeria; it was the entity with the
necessary regulatory licence; the English holding company was the ultimate holding company
worldwide and received reports back from subsidiaries.
The Court of Appeal subsequently confirmed jurisdiction in Lungowe v Vedanta and
Konkola,40 following in that case the acceptance of jurisdiction by the High Court,41 yet
confirmed lack of jurisdiction in its finding in Okpabi.42 Right to appeal to the Supreme
Court was granted in Vedanta and it is hoped that when that Court delivers its judgment
(expected January 2019), it will clarify a test to help determine the level of intensity of hold-
ing company oversight.
In AAA et al v Unilever and Unilever Tea Kenya Ltd,43 Unilever was the ultimate holding
company and registered in the UK. Its subsidiary was a company registered in Kenya which
operated a tea plantation there. The plaintiffs were employed, or lived there, and were the
victims of ethnic violence carried out by armed criminals on the Plantation after the
Presidential election in Kenya in 2007. They claimed that the risk of such violence was fore-
seeable by both defendants, that is, both the parent company and the subsidiary, that both
owed a duty of care to protect them from the risks of such violence, and that they had
breached that duty.
Laing J threw out the case on the basis that the claims, prima facie (on deciding jurisdiction,
the Court did not review the substantial merits of the case; a thin line to cross) had no merit.
Three issues had to be decided:
i) By reference to what law should the claim be decided? This was agreed as being Kenyan law.
ii) Were the criteria in Caparo v Dickman44 (a leading English law case on the test for the
duty of care) satisfied?
The relevance of English law on this issue comes as a result of Kenyan law following the
same Caparo test. As is noted below, it is not in fact without discussion that lex fori (the law
of the jurisdiction of the court seized) should apply to this test of attributability. Laing J held
that the Caparo criteria were not fulfilled. The events were not as such foreseeable.
Importantly, with respect to the holding company:
• the pleaded duty effectively required the holding company to ensure that the claim-
ants did not suffer the damage that they suffered, and not merely to take reasonable steps
to ensure their safety;
• the pleaded duty also effectively imposed liability on that holding company for the
criminal acts of third parties, and required it to act as a ‘surrogate police force to maintain
law and order’; and
39 Ibid., at [106]. 40 [2017] EWCA Civ 1528. 41 [2016] EWHC 975 (TCC).
42 [2018] EWCA Civ 191. 43 [2017] EWHC 371 (QB). 44 [1990] 2 AC 605.
• such a duty would be wider than the duty imposed on the daughter company, as the
actual occupier of the plantation, under the Kenyan Occupiers’ Liability Act.
Laing J discussed and dismissed the plaintiff ’s attempts at distinguishing Okpabi.45 In

her view, like in Shell/Okpabi, the parent company’s control was merely formal control
exercised at a high level of abstraction, and over the content and auditing of general policies
and procedures. This was not the sort of control and superior knowledge which would meet
the Chandler test.
iii) Were the claims barred by limitation? This became somewhat irrelevant but the High
Court ruled they were not. (This, under the common law of conflicts, was a matter of lex
causae: Kenyan law, and requiring Kenyan expert input, not English law, as the lex fori).
The Court of Appeal has confirmed.46 It is clear that the English High Court is not willing
to pick up the baton of court of preferred resort for CSR type cases against parent companies—
that the Court of Appeal is not much more sympathetic, and that Supreme Court guidance
will be much welcome.

Regulation: Operations Arising Out of a Branch
Returning then to the EU-wide position, there are some special jurisdictional rules which
modify the general position discussed above. In the case of corporations, Article 7(5) of the
Brussels I Regulation extends to branches of international companies:
A person domiciled in a Member State may, in another Member State, be sued: . . .

5. as regards a dispute arising out of the operations of a branch, agency or other establishment,
in the courts for the place in which the branch, agency or other establishment is situated; . . .
The use of the words ‘arising out of ’ however indicates the limited potential for this rule in
the case of international litigation in a CSR context.
This concept of operations . . . also comprises . . . actions concerning non-contractual obliga-

tions arising from the activities in which the branch, agency or other establishment within
the above defined meaning, has engaged at the place in which it is established on behalf of the
parent body.47
It can hardly be said that the non-contractual obligations of International Business Ruritania
Ltd can automatically be allocated to International Business [EU Member State]. They do
not ‘arise out of ’ the operation in the EU Member State and therefore claimants seeking
redress against foreign subsidiaries based on the presence of a holding company in another
EU Member State will face the same difficulties as discussed above.
Moreover, and importantly, Article 7(5) requires International Business Ruritania Ltd to
be domiciled in another EU Member State: it concerns only defendants already domiciled
in a Member State, that is, companies or firms having their seat in one Member State and
45 At [103]. 46 [2018] EWCA Civ 1532. 47 Case 33/78, Somafer [1979] ECR 2183, at [13].
having a branch, agency, or other establishment in another Member State. Companies or

firms which have their seat outside the Union but have a branch, etc. in a Member State, are
covered instead by Article 6 of the Jurisdiction Regulation. (This refers to national or ‘residual’
(rules of jurisdiction in the case of non-EU based defendants).

Regulation: Tort
There is another special jurisdictional rule, that for actions arising in tort may seem appeal-
ing at first sight. In Bier48 the CJEU held that Article 7(2) allows litigation in both the locus
delicti commissi (the place where the harmful event leading to, or potentially leading to, the
harm occurred), and the locus damni (the place where the damage occurred). In cases
where a plaintiff is able to show that an international business with a registered seat in an
EU Member State is behind the actions which led to the tort, this grants a jurisdictional
trigger. However, as already noted, this is not in itself a big help for pursuing EU-based
multinational corporations. They can already be pursued on the basis of Article 4. The
bigger issue, as dealt with below, is how one can pursue that EU parent company on the
basis of EU law.
50.3.1.4 Special Jurisdictional Rule: Article 7(3) Jurisdiction Regulation

Courts which have jurisdiction in a criminal procedure, also have jurisdiction for the civil
leg of the prosecution.
50.3.1.5 Review of the Jurisdiction Regulation—The ‘International

Dimension’ of the Regulation
The review of the original Brussels I Regulation proposed both an assets-based jurisdic-
tional rule, and a forum necessitatis option, which would have had an impact on the issue
discussed here. However neither of these proposals were upheld in the eventual Brussels
I Recast Regulation.
50.3.1.6 Applicable Law

Even if jurisdiction can be established, however, and against the company which can under
the above rules be said to be responsible for the act having occurred, the question remains
as to what law to apply to the facts at issue. This is the same challenge faced by courts in
applying the ATS as discussed above. The EU does not operate an ATS-like system, which
employs international law to advance the case of plaintiffs seeking ‘justice’ in environmental
or human rights cases. The CSR-proactive route which must be followed in the EU is one of
Gleichlauf, or equivalence, between having a court in the EU hear the case, and having that
court apply the human rights/environmental law of that same forum.49
48 Case 21/76, Mines de Potasse d’Alsace, [1976] ECR 1735.

49 Given the high degree of harmonization of environmental law, as well as (to a slightly lesser degree)
of occupational health and safety laws, and of course the impact of the European Convention on Human
Rights (ECHR) as well as the EU’s Charter of Fundamental Rights, the relevant laws of EU Member State
do enjoy a certain amount of harmony.
The most likely route to pursue a corporation in a court in the EU is via an action in tort.
This generally entails the application of the lex loci damni: that is the core rule of the EU’s
Rome II Regulation.50 The applicable law therefore is the law of the place where the damage
first occurred, not where the action leading to that damage occurred, or where subsequent
indirect damage is felt. Given that plaintiffs generally do not pursue the case with a view to
having the law of a non-EU Member State apply (they aim to have EU law being applicable),
this general rule of the Rome II Regulation in all likelihood is not the goal of the plaintiffs
concerned and in such cases, whilst there may be advantages in terms of costs, availability
of legal advice, and speed, in suing in the court of the EU Member State, there would not be
any advantage in terms of the environmental standards applied.
Might any of the exceptions in the Rome II Regulation apply?
If both parties are habitually resident in the same country when the damage occurs, the
law of that country applies (Article 4(2) Rome II). This may be relevant in exceptional cases,
however the more standard CSR scenario is for victims resident in the locus damni, outside
of the EU, to sue in the EU. Even if the victims of the tort subsequently move to the same
EU Member State as the State of incorporation of defendant, this would not assist: Article
4(2) looks at the time of occurrence of the damage.
Article 4(3) more generally includes an escape clause: when it is clear from the circum-
stances of the case that it is ‘manifestly’ more closely connected with a country other than
the one indicated by Article 4(1) or (2), the law of that country shall apply instead. ‘The’ tort
has to have that manifestly closer relationship: in particular in the CSR context, this is prob-
lematic given the occurrence of the damage abroad.
Finally, Article 7 Rome II contains a special rule for environmental damage:
Article 7
Environmental damage
The law applicable to a non-contractual obligation arising out of environmental damage or
damage sustained by persons or property as a result of such damage shall be the law determined
pursuant to Article 4(1), unless the person seeking compensation for damage chooses to base
his or her claim on the law of the country in which the event giving rise to the damage occurred.
This article ties in with one of the options for establishing jurisdiction for an EU court, as
highlighted above. One would have to convince a court in an EU Member State that either
direct instructions or negligent lack of oversight by International Business [EU Member
State] led to the damage at issue and hence constitutes ‘the event giving rise to the damage’.
This is not an easy burden of proof as has been shown (see the US judge’s instruction to
counsel in Apartheid51).
Finally, I would argue that the additional rule on ‘rules of safety and conduct’ of Article
17 has less relevance for environmental litigation than may be prima facie assumed.52
50 Regulation 864/2007 on the law applicable to non-contractual obligations, OJ [2007] L199/40. See
detailed analysis in G. van Calster, EU Private International Law (Oxford: Hart Publishing, 2nd edn. 2016).
51 See n. 25 and accompanying text.
52 Contra: V. Van Den Eeckhout, ‘Corporate Human Rights Violations and Private International Law’
(2012) 2 Contemporary Readings in Law and Social Justice.
In summary, therefore, while it is relatively straightforward, in the case of acts committed

abroad, to sue a corporation in the EU, in the case of that corporation having a corporate
domicile in the EU, the applicable law almost certainly will not be European law and the
advantages are therefore more procedural rather than substantive.53 There does not seem
much appetite in the EU institutions presently to have this changed.
In the aforementioned case of Shell, the Court at The Hague handed down its judgment
on 30 January 2013, and reached its decision not on the Basis of the Rome II Regulation, but
rather on the basis of Dutch conflicts law, for Rome II did not apply ratione tempore.
Therefore, it did not entertain any of the options outlined above in that Regulation which
may have led to the claimants being able to rely on Dutch law: the events which gave rise to
the damage occurred before the entry into force of that Regulation.
Generally the judgment (which is still under appeal on its merits) is quite comforting for
Shell (and other holding companies in similar situations). The court stuck to its decision to
join the cases, hence allowing Shell Nigeria to be pursued in the Dutch courts, together with
the holding company (against which as noted jurisdiction was easily established under the
Brussels I Regulation)—this joinder has been confirmed interlocutory by the Court of
Appeal.54 The court at first instance then applied lex loci damni. (As far as the author is aware,
prior to Rome II, The Netherlands applied a more or less complex conflicts rule, not neces-
sarily leading to lex loci damni, neither to lex loci delicti commissi, which was the rule in
most EU Member States prior to the entry into force of the Rome II Regulation.)
Nigerian law applied and any route to apply Dutch law was rejected. Incompatibility with
Dutch ordre public, for instance, was not upheld. Since Nigerian law runs along common
law lines, the court discussed negligence in tort, applied to environmental cases, leading
amongst others to the inevitable English case of Rylands v Fletcher.55 The court found that
the damage occurred because of sabotage, which under Nigerian law in principle exoner-
ated Shell Nigeria. Only for two specific instances of damage was liability upheld, where
Shell Nigeria had failed to take basic precautions. The conditions established by the Court
of Appeal in Chandler v Cape56 to find the holding company liable, were not met in the case
at issue. The court did not establish a specific duty of care under Nigerian law (with the loop
to the English common law) for Royal Dutch Shell (RDS), the parent company. A general
CSR commitment was not found not to alter that.
50.3.2 Applicable Law for Attributability/Duty of Care,

and Compliance Strategies
As the cases above show, some form of attribution is generally required to lead to successful
pursuit of international holding companies on the basis of activities of their subsidiaries
carried out in less CSR active jurisdictions. Direct actions against a foreign domiciled sub-
sidiary are problematic. Even in the EU, there is no general EU rule on attributability and
neither company law nor tort law is sufficiently (or in the case of tort law even embryonically)
harmonized to be able to speak of much EU influence here.
53 Similarly, see C. Van Dam, ‘Tort Law and Human Rights: Brothers in Arms. On the Role of Tort Law
in the Area of Business and Human Rights’ (2011) (221) Journal of European Tort Law 231–2.
54 ECLI:NL:GHDHA:2015:3586. 55 (1868) LR 3 HL 330 (HL). 56 [2012] EWCA Civ 525.
50.3.2.1 Inspiration from Competition Law?

However, in EU competition law, the principle is more or less established and may, one sus-
pects, have an influence in other areas, too. In ENI57 for instance, the CJEU confirmed the
strong presumption of attribution in the case of shareholder control.
It is established case-law under EU competition law that the conduct of a subsidiary may
be imputed, for the purposes of the application of Article 101 TFEU (the core article disciplin-
ing cartel behaviour), to the parent company particularly where, although having separate
legal personality, that subsidiary does not autonomously determine its conduct on the market
but mostly applies the instructions given to it by the parent company. The CJEU (and national
courts taking its lead) will have regard in particular to the economic, organizational, and
legal links which unite those two legal entities. In such a situation, since the parent company
and its subsidiary form part of a single economic unit, they thus form a single undertaking
for the purpose of Article 101 TFEU. The CJEU has repeatedly held that the Commission
may impose fines on the parent company without being required to establish its individual
involvement in the infringement.
In the particular case in which a parent company holds all or almost all of the capital in
a subsidiary which has committed an infringement of the EU competition rules, there is a
rebuttable presumption that that parent company exercises an actual decisive influence over
its subsidiary. In such a situation, it is sufficient for the Commission to prove that all or almost
all of the capital in the subsidiary is held by the parent company in order to take the view
that that presumption is fulfilled.
In addition, in the specific case where a holding company holds 100 per cent of the capital
of an interposed company which, in turn, holds the entire capital of a subsidiary of its group
which has committed an infringement of EU competition law, there is also a rebuttable pre-
sumption that that holding company exercises a decisive influence over the conduct of the
interposed company and also indirectly, via that company, over the conduct of that subsidiary.
In ENI, for the entire duration of the infringement in question, Eni held, directly or
indirectly, at least 99.97 per cent of the capital in the companies which were directly active
within its group in the sectors in which there had been a violation of competition law.
The ECJ held that, in particular, the absence of management overlap between Eni and the
daughter companies was not enough to rebut the presumption that the companies were a
single economic unit.
50.3.2.2 Outside of Competition Law

In competition law, therefore, attribution may be quite easily established in a holding con-
text, at the very least for transfer of fines. This is undoubtedly not the approach which many
Member States take outside of the competition law area. The waters on attribution remain
quite deep. This has an impact on the conflicts area, in particular in the application of the
Rome II Regulation (as noted, the core rule for conflict of laws in torts) and the debate on
corporate social responsibility. This point was also made in the more specific context of
piercing of the corporate veil, by, for example, the United Kingdom Supreme Court on 12
June 2013 in Petrodel v Prest58 (a matrimonial assets case which was decided on the basis of
57 Case T-39/07, and C-508/11 P, ECLI:EU:C:2013:289. 58 [2013] UKSC 34.
trust), where Lord Neuberger stated obiter ‘if piercing the corporate veil has any role to play,
it is in connection with evasion’.
Lord Sumption’s take was:
[T]here is a limited principle of English law which applies when a person is under an existing
legal obligation . . . which he deliberately evades or whose enforcement he deliberately frustrates
by interposing a company under his control. The court may then pierce the corporate veil for
the purpose, and only for the purpose, of depriving the company or its controller of the advan-
tage that they would otherwise have obtained by the company’s separate legal personality.
He added:
The principle is properly described as a limited one, because in almost every case where the
test is satisfied, the facts will in practice disclose a legal relationship between the company
and its controller which will make it unnecessary to pierce the corporate veil.
Lord Clarke, agreeing with Lord Mance and others, stated, ‘the situations in which piercing
the corporate veil may be available as a fall-back are likely to be very rare’.
Piercing issues were also considered sub judice in VTB59—without much holding on the
merits. VTB’s case was that it was induced in London to enter into a facility agreement, and
an accompanying interest rate swap agreement, by misrepresentations made by one of the
defendants, for which it claimed the other respondents were jointly and severally liable. The
parties were of suitably diverse domiciles (with the appellant incorporated in England but
controlled by a state-owned bank in Moscow; the defendants being two British Virgin
Island-based companies owned and controlled by a Moscow-based Russian businessman).
As the defendants were not EU-based, the Brussels-I Regulation did not apply.
The issues involved were essentially as follows:
50.3.2.2.1 jurisdiction
Lord Neuberger made the point that settling the presence (or not) of jurisdiction, is an early
procedural incident in a trial and ought not to lead to protracted legal argument, costs, and
time, lest the discussions centre around whether the potential other jurisdiction can guar-
antee a fair trial or not. In contrast with other in recent high-profile cases before the UK
courts, the alternative, Russian forum, would by common agreement have also offered a fair
trial. Lord Neuberger also emphasized, with reference to Lord Bingham in Lubbe v Cape,
that in forum non conveniens considerations (not relevant in EU cases where the company
is domiciled in the Member State), appeal judges should defer in principle to the trial judge,
and that this should be no different in proceedings concerning service out of jurisdiction.
The majority therefore opted to defer to Arnold J (at the High Court) and the Court of
Appeal in their finding of jurisdiction, in the absence of any error which ought to have
made the former change their conclusion.
50.3.2.2.2 applicable l aw for tortious misrepresentation
This the law of the jurisdiction in which they are ultimately received and relied upon (the
forum connogati if you like). In the case at issue, this was held to be England.
59 [2013] UKSC 5.

50.3.2.2.3 applicable l aw for piercing the c orp orate veil

The Court emphasized the foundation of individual personality of a company established in
Salomon and A Salomon and Co Ltd (1897).60 The presumption must be against piercing.
The Supreme Court did not however set out a definitive test since this was not necessary for
its resolving of the case, neither did it decide what law should apply to the issue. In theory,
Lord Neuberger suggested,
the proper law governing the piercing of the corporate veil (may be) the lex incorporationis,
the lex fori, or some other law (for example, the lex contractus, where the issue concerns who
is considered to be party to a contract entered into by the company in question).
However, it was common ground among parties in the case thus far that the applicable law
was the law of England, and therefore the issue of choice of law for piercing the corporate
veil was not further reviewed.
That would seem to be the general line held by case-law across the EU: if the relevance for
deciding applicable law to the attributability issue is at all identified, parties and courts are
generally happy to continue with the application of lex causae61 rather than conducting the
analysis using traditional conflict of laws methodology.
50.4 Conclusion
It may be the cynic’s view that, in the absence of internationally followed principles in
particular relating to attributability, companies will continue to organize their corporate
structure with a view to forum and applicable law shopping. However, paraphrasing Judge
Jacobs in Kiobel, immoral behaviour is few companies’ business plan. This does not mean
that one need not address the current uncertainty with respect to the possibility of pursu-
ing business in the EU or other courts on the basis of arguably stricter tort, health and
safety, environmental etc. laws in those states. For if nothing else, the current disparate
approach does not exactly assist in creating the level playing field necessary for international
business integration.
In this chapter I have outlined the current situation in this area using corporate social
responsibility as the central theme. This means I have focused on the roll-out of private
international law in the specific context of suing corporations in attractive jurisdictions, for
activities which those corporations have carried out abroad. I have outlined the answers of
two radically different jurisdictions, one, the United States, in which the debate has focused
on the reluctant acceptance of jurisdiction with international law as the applicable law, and
the other, the EU, in which jurisdiction is easily established yet applicable law not readily
accepted as leading to the laws of an EU state. Other jurisdictions will have some kind of a
regime in between, and will undoubtedly seek inspiration in the EU and US developments.
60 Salomon v A Salomon & Co Ltd [1896] UKHL 1, [1897] AC 22.

61 See also S. Demeyere, ‘Liability of a Mother Company Within the EU for a Foreign Subsidiary—
Study under French, Belgian and English Law’ (2005) European Review of Private Law 385–414.

Alvarez Armas, E., Private International Environmental Litigation Before EU Courts (Doctoral Thesis,
Université Catholique de Louvain, 2017).
Bernasconi, C., ‘Civil Liability Resulting from Transfrontier Environmental Damage: A Case for the
Hague Conference?’ (1999) 12 Hague Yearbook of International Law, 1-81 and https://www.assets.
hcch.net/upload/wop/gen_pd8e.pdf.
Bogdan, M., ‘The Treatment of Environmental Damage in Regulation Rome II’ in J. Ahern and
W. Binchy (eds.), The Rome II Regulation on the Law Applicable to Non-contractual Obligations
(Leiden: Martinus Nijhoff, 2009), 219–30.
Calliess, G.-P., ‘Article 7 Rome II’ in G.-P. Calliess (ed.), Rome Regulations (Alphen a/d Rijn: Kluwer,
2nd edn. 2015), 603–25.
Dickinson, A., ‘Environmental Damage’ in The Rome II Regulation (Oxford: Oxford University Press,
2008), 429–46.
Enneking, L., Foreign Direct Liability and Beyond (The Hague: Eleven, 2012), 752 p.
Fach Gomez, K., ‘The Law Applicable to Cross-Border Environmental Damage: From the European
National Systems to Rome II’ (2004) 6 Yearbook of Private International Law 291–318.
Huber, P. ‘Article 7’ in P. Huber (ed.), Rome II Regulation—A Commentary (Munchen: Sellier, 2011),
202–26.
Ryngaert, C., Unilateral Jurisdiction and Global Values (The Hague: Eleven, 2015).
Von Bar, C., ‘Environmental Damage in Private International Law’ (1997) 268 Recueil des Cours 360ff.
chapter 51
En v ironm en ta l
L aw a n d Pu blic
I n ter nationa l L aw
Leslie-Anne Duvic-Paoli

51.2 The Domestic-International Divide 1162
51.3 Status of International Law Within Domestic Legal Systems 1165
51.3.1 Approaches 1165
51.3.1.1 Dualism Versus Monism 1165
51.3.1.2 Hierarchy of Norms 1166
51.3.1.3 Self-executing and Non-self-executing Law 1167
51.3.2 Techniques of Transposition 1168
51.4 Effects of International Law Within Domestic Law 1169
51.4.1 Unit of Analysis 1170
51.4.1.1 International Treaties 1170
51.4.1.2 Custom 1171
51.4.1.3 Environmental Principles 1172
51.4.1.4 Soft Law 1172
51.4.2 Types of Incidence 1173
51.4.2.1 Direct Effect 1173
51.4.2.2 Interpretation 1174
51.4.2.3 Non-technical Normative Effects 1175
51.4.3 Invocability 1177
51.4.3.1 State Authorities 1177
51.4.3.2 Individuals 1178
51.4.3.2.1 Individual Rights 1178
51.4.3.2.2 Enforcement 1179
51.4.3.2.3 Interpretation 1180
51.5 Drivers 1180
environmental law and public international law 1161
51.1 Introduction
The interactions between domestic and international law are surprisingly under-explored.1
The two governance levels are largely considered to be separate fields of enquiry that have
their own methodologies, interests, and epistemic communities. In addition, the scholar-
ship taking a comparative outlook on the interactions between the two governance levels
is still in its infancy.2 International law scholarship does not find it easy to undertake a
fine-tuned analysis of domestic practices: indeed, the pretentions of international law to
universality do not fit squarely with a detailed analysis of how national legal regimes differ
in their relations to international law. And yet, a comparative analysis of how public inter-
national law interacts with domestic systems contributes to a better understanding of
how international environmental law is implemented and how globalization harmonizes
legal techniques.
This chapter identifies the most common and most influential types of interactions
taking place between environmental law and public international law. The task is not
devoid of difficulties, arising from the limitations inherent to the comparative exercise,
but also from a lack of systematic data about how international treaties pertaining to
environmental protection are implemented and how international environment law is used
in domestic courts. As a result, this study does not claim to be exhaustive, but rather offers
a cartography of the techniques that states use to integrate public international law in their
environmental legal systems. This is done from the perspective of domestic law, courts, and
administrative bodies.
Two preliminary comments ought to be made. First, the chapter concentrates on how,
and the extent to which, public international law influences domestic environmental law. It
should not be understood to say that the interactions do not go the other way as well.3
Second, the question of the interactions between domestic and public international law is
not restricted to the environmental field. As a result, a number of the techniques described
in the chapter apply irrespective of the type of substantive matter at stake. However, the
chapter also highlights how environmental matters specifically affect the interactions. This
includes the often programmatic nature of international environmental obligations, the
blurred distinction between law and policy in matters of environmental protection, and the
increasingly important role of the judiciary in this field.
The chapter starts by discussing, and challenging, the main assumption upon which it
rests: that the domestic-international divide is relevant to understand legal processes in the
1 P.-H. Verdier and M. Versteeg, ‘International Law in National Legal Systems: An Empirical
Investigation’ (2015) 109 American Journal of International Law 514; and, more specifically, in relation to
environmental law: C. Redgwell, ‘National Implementation’ in D. Bodansky, J. Brunnée, and E. Hey
(eds.), The Oxford Handbook of International Environmental Law (Oxford: Oxford University Press
2007), 922, at 945; E. Fisher, B. Lange, E. Scotford, and C. Carlane, ‘Maturity and Methodology: Starting
a Debate about Environmental Law Scholarship’ (2009) 21 Journal of Environmental Law 213, at 241–2.
2 A. Roberts, P. B. Stephan, P.-H. Verdier, and M. Versteeg, ‘Comparative International Law: Framing
the Field’ (2015) 109(3) American Journal of International Law 467.
3 A recent example can be found in how the US constitutional system influenced the drafting of the
Paris Agreement: see J. E. Viñuales, ‘The Paris Agreement on Climate Change: Less is More’ (2017) 59
German Yearbook of International Law 11, at 17–21.
1162 leslie-anne duvic-paoli
field of environmental governance (section 51.2). It then moves to address two inter-related
questions regarding the interactions between domestic environmental law and international
law—the status of international law in domestic systems (section 51.3) and its effects (sec-
tion 51.4). The last section identifies factors that influence a state’s approach to the inter-
actions between its legal system relative to environmental protection and public international
law (section 51.5).
51.2 The Domestic-International Divide
An analysis of the interactions between domestic environmental law and public inter-
national law assumes that a dichotomy exists between the two levels of governance. It seems
evident that, on the one hand, domestic environmental law is used to regulate the behaviour
of private individuals, organizations, and sub-national entities within national borders
while, on the other hand, public international law governs relations between nations.
However, the conventional borders of what constitutes the ‘domestic’ and the ‘international’
are blurred in the context of globalization. Bethlehem described this as ‘the end of geog-
raphy’, drawing a parallel with Fukuyama’s ‘end of history’ thesis,4 to highlight how these
constant flows are changing an international system strongly anchored in territoriality.5 In
this context, the ability of international law to remain relevant by providing responses to
new social realities6 and to increasingly delocalized legal frameworks7 has been questioned.
As a result, new theoretical conceptualizations of the law transcending national boundaries
have emerged, including, most prominently, under the names of ‘transnational law’8 and
‘global law’.9 These theories fit well with the a-territorial nature of environmental protec-
tion10 and have supported the rise to the sub-fields of ‘transnational environmental law’11
and ‘global environmental law’.12
4 F. Fukuyama, The End of History and the Last Man (New York: Free Press, 1992).
5 D. Bethlehem, ‘The End of Geography: The Changing Nature of the International System and the
Challenge to International Law’ (2014) 25(1) European Journal of International Law 9, at 13.
6 R. Domingo, The New Global Law (Cambridge: Cambridge University Press, 2006).
7 V. Heyvaert, ‘The Transnationalization of Law: Rethinking Law through Transnational Environmental
Regulation’ (2017) 6(2) Transnational Environmental Law 205.
8 P. Jessup, Transnational Law (New Haven: Yale University Press, 1956).
9 Domingo, The New Global Law, at 35–44.
10 As recognized, for instance, by the loosening of the principle of territoriality under German (envir-
onmental) law: Germany, Federal Administrative Court, BVerwG, Urteil vom 17.12.1986—7 C 29.85,
Anonymous Dutch citizen, Appeal judgment, BVerwGE 75, 285, ILDC 2434 (DE 1986) (‘Emsland’).
11 G. Shaffer and D. Bodansky, ‘Transnationalism, Unilateralism and International Law’ (2012) 1(1)
Transnational Environmental Law 31 (describing transnational environmental law as a field concerned
with the ‘migration and impact of legal norms, rules and models across borders’).
12 T. Yang and R. Percival, ‘The Emergence of Global Environmental Law’ (2009) 36 Ecological Law
Quarterly 615 (describing trends of convergence, integration, and harmonization between environmen-
tal norms that blur the distinction between the domestic and the international).
It is now admitted that legal processes occurring at an international level do not only
consist in ‘international law’ defined restrictively as the law governing interactions between
states. Two preliminary questions ought to be mentioned here. The first one relates to the
specific question of the status of EU law, at the crossroad between international and
domestic law. This complex issue will however be left aside to concentrate on the more
general, and second, question that pertains to what should be considered as ‘law’. Indeed,
the legal authority of international law, in particular in the field of environmental protec-
tion, is increasingly dispersed, with a diversification of law-makers (including private
actors) and of its sources (including non-legally binding instruments). As a result, which
instruments and processes should be considered to fall under the scope of ‘international
law’ when assessing its effects on domestic law remains an open-ended question. The con-
tours of the ‘domestic’ and the ‘international’ are blurred as a result of a dual process: i) the
nationalization of international law; and ii) the internationalization of national law. The
failure of international law, in its traditional forms, to provide appropriate solutions to
major global challenges has led Slaughter and Burke-White to argue that the future of inter-
national law is ‘domestic’.13 In essence, this prediction materialized in the context of
international climate law, when the traditional top-down approach found in the Kyoto Protocol
to the United Nations Framework Convention on Climate Change (UNFCCC) of imposing
emission reduction obligations negotiated at the international level14 was abandoned for a
bottom-up rationale embedded in the Paris Agreement to the UNFCCC15 with countries
proposing their own emission reduction objectives, monitored under an international gov-
ernance framework.16
The opposite process is also true: domestic law is becoming increasingly international-
ized. Today no domestic law is purely domestic17 because states are necessarily influenced
by legal developments beyond their borders.18 In addition, the increasing number of multi-
lateral, regional, and bilateral environmental agreements is in and of itself having a har-
monizing effect on domestic environmental policies, although the wide margin of discretion
left to states as regards to their implementation tempers this trend.
And yet, states tend to choose similar legal techniques when implementing international
treaties. Indeed, countries look to each other for guidance when drafting their own national
legislation. They try to avoid re-inventing the wheel when drafting sophisticated environ-
mental regulations if they can build on the previous experiences of other countries.
International institutions encourage this mimetism: in addition to offering their assistance
13 A.-M. Slaughter and W. Burke-White, The Future of International Law is Domestic (or, The European
Way of Law) (Oxford: Oxford University Press, 2007).
14 Protocol to the United Nations Framework Convention on Climate Change, Kyoto, 11 December
1997, in force 16 February 2005, (1998) 37 ILM 22 (‘Kyoto Protocol’).
15 Paris Agreement to the United Nations Framework Convention on Climate Change, Paris,
12 December 2015, in force 4 November 2016, Doc. FCCC/CP/2015/10/Add.1 (‘Paris Agreement’).
16 D. Bodansky, ‘The Paris Climate Change Agreement: A New Hope?’ (2016) 110 American Journal of
International Law 288, at 293.
17 V. Heyvaert and T. Etty, ‘Introducing Transnational Environmental Law: Editorial’ (2012) 1(1)
Transnational Environmental Law 1, at 4.
18 W. Twining, Globalisation and Legal Theory (London: Butterworths, 2000), 51.
in the review and drafting of environmental legislation,19 they draft ‘model legislations’20
and put together legal ‘toolkits’21 that states can use when seeking to put their legislation in
line with international requirements.
Moreover, the harmonization of domestic legal systems is fostered by what Keohane and
Nye have coined ‘transgovernmental relations’22—personal contacts initiated by govern-
mental officials of different countries that bypass the formal relations controlled by official
policies. Such contacts are particularly sustained in the field of environmental protection,
especially in the context of conferences/meetings of the parties. Harmonization is also the
result of the willingness of national courts to engage in ‘tacit coordination’ by building upon
the decisions of domestic courts in other jurisdictions.23 For instance, Bangladeshi and
Indian courts have relied on the Philippines Minors Oposa case, celebrated for its reference
to inter-generational equity,24 and the Supreme Court of Canada referred to the Indian
Supreme Court’s recognition of the precautionary principle as customary international
law.25 More informally, ‘transgovernmental networks’ that link together legal actors across
boundaries26 are also particularly influential in a technical field like environmental regula-
tion. Legal practitioners come together informally to share best practices, in the context of
initiatives such as the International Network for Environmental Compliance and
Enforcement, bringing together government and non-governmental practitioners,27 or the
Global Judges Symposium on Sustainable Development and the Rule of Law held in 2002
under the auspices of the UN Environment Programme.28
The dual process that sees the domestic and the international losing their traditional
characteristics is common to international law in general; however, it is particularly preva-
lent in the field of environmental protection. It is clear that the divide between the domestic
and the international is an artificial one that fails to represent the complexities of a global-
ized legal landscape. It remains, however, relevant to analyse the interactions between two
levels of governance. As a result, the rest of the chapter relies on a restrictive understanding
of domestic law and international law, while being aware of its inherent limitations.
19 Commission on Sustainable Development, ‘Rio Declaration on Environment and Development:

application and implementation’, Report of the Secretary-General, E/CN.17/1997/8, 10 February 1997
(‘CSD Rio Application Report’), para. 68.
20 CITES Secretariat, ‘Draft Model Law’, available at: https://cites.org/legislation/Legislative_
guidance_materials.
21 See, for instance, ‘Law and Climate Change Toolkit’ for the implementation of the Paris Agreement,
available at: http://thecommonwealth.org/media/press-release/new-law-and-climate-change-toolkit-
unveiled-cop23.
22 R. Keohane and J. Nye, ‘Transgovernmental Relations and International Organizations’ (1974) 27(1)
World Politics 39.
23 E. Benvenisti and G. Downs, ‘National Courts, Domestic Democracy, and the Evolution of
International Law’ (2009) 20(1) European Journal of International Law 59, at 61.
24 Bangladesh, Appellate Division, Farooque v Government of Bangladesh, 17 B.L.D. (A.D.) 1 (1997);
India, Supreme Court, A.P. Pollution Control Bd. (II) v Nayudu, [2000] INSC 679.
25 Canada, Supreme Court, 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town),
[2001] 2 S.C.R. 241, 2001 S, para. 32.
26 A.-M. Slaughter and T. N. Hale, ‘Transgovernmental Networks’ in M. Bevir (ed.), The SAGE
Handbook of Governance (London: SAGE, 2010), 342.
27 See: https://www.inece.org/about/.
28 Governing Council of the UN Environment Programme, ‘Report of the Global Judges Symposium
on Sustainable Development and the Rule of Law’ UNEP/GC.22/INF/24 (12 November 2002).
51.3 Status of International Law Within

Domestic Legal Systems
The first question arising from the interactions between the domestic and the i nternational
is structural and relates to the status of international law within domestic legal systems.
The following discussion presents first the theoretical frameworks available to explain how
domestic legal systems relate to public international law (1) and then moves to identify
the main transposition techniques used to integrate international law into domestic
legal systems (2).
51.3.1 Approaches
The status of international law in domestic systems is particularly difficult to conceptualize.
The traditional approach relies on debates over the role and place of international law in
relation to domestic law—the dualism versus monism dichotomy (section 51.3.1.1). However,
it fails to fully reflect the complexities of the interactions: the place of international law
within the hierarchy of norms (section 51.3.1.2) and the nature of international norms, and,
more specifically, whether they are self-executing or not (section 51.3.1.3) are also variables
that need to be taken into account.
51.3.1.1 Dualism Versus Monism

The status of international law within domestic legal systems has been widely theorized as
a clash between ‘dualism’ and ‘monism’.29 The distinction between the two categories is
based on whether the international and national legal orders are deemed to consist in dis-
tinct or single orders. The theory goes that in dualist countries, such as the United Kingdom,
Ireland, and a number of present and former British Commonwealth countries, the two
orders are separate, which means inter alia that the ratification of the treaty does not auto-
matically transform the provisions of a treaty into domestic law but needs to be incorpor-
ated in national law. Conversely, in monist countries, international law can be applied
directly within the national legal system and acquires the status of domestic law upon its
ratification and promulgation. This group of countries includes the United States, various
Western European countries (including Germany, France, Italy, and Spain), much of Latin
American, and some African states.
Although the distinction between dualism and monism is widespread, in effect, it does
not represent actual practice.30 First, the dualist-monist distinction fails to recognize that
29 H. Kelsen, ‘Les rapports de système entre le droit interne et le droit international public’ in Collected
Courses of the Hague Academy of International Law (vol. 14, Leiden, Boston: Brill, Nijhoff, 1926), 227;
H. Triepel, ‘Les rapports entre le droit interne et le droit international’ in Collected Courses of the Hague
Academy of International Law (vol. 1, Leiden, Boston: Brill, Nijhoff, 1923), 73.
30 J. Crawford, Brownlie’s Principles of Public International Law (Oxford: Oxford University Press, 8th
edn. 2012), 50; C. Bruch, ‘Is International Environmental Law Really Law?: An Analysis of Application in
Domestic Courts’ (2006) 23 Pace Environmental Law Review 423, at 425; J. Nijman and A. Nollkaemper,
national legal systems often do not adopt a monolithic approach to international law.31 For
example, customary law is often directly applicable without legislative implementation,
including in dualist countries.32 Second, domestic practice is not always consistent with the
category under which the legal system supposedly falls. The status of the Convention for the
Protection of the World Cultural and Natural Heritage (WHC)33 in Germany illustrates this
reality. Germany is considered to have a dualist approach to international treaties: and yet,
it recently became evident that, while the administration thought to the contrary, Germany
never transposed the WHC in its domestic law (in contravention of Article 59 of the Basic
Law).34 The dualist-monist dichotomy is, nevertheless, useful as a shortcut to refer to the
two main ways following which international law can integrate into domestic law. This
chapter will, therefore, continue to refer to ‘dualist’ and ‘monist’ countries despite the fact
that it fails to give full justice to complex realities.
51.3.1.2 Hierarchy of Norms

The place given to an international law norm (either treaty or custom-based) in a country’s
hierarchy of norms also influences the status of international law in municipal systems.
How does an international law norm compare in relation to a national constitution? If it
has the rank of ordinary law, does it take precedence over prior and/or later legislation?
These questions apply to monist countries that do not transpose international treaties into
domestic law, but also to dualist countries in relation to customary norms that are generally
not transposed. Domestic legal systems respond differently to these questions.35 In many
monist states a duly ratified treaty has a normative status equivalent to that of national legis-
lation.36 However, a growing number of monist states now grant treaties greater domestic
status than ordinary laws,37 as a result of either constitutional changes38 or judicial inter-
pretation.39 The place enjoyed by an international law norm in the hierarchy of norms will
also depend on its source, with customary law often being granted a status different from
treaty law. Overall, the proportion of states that consider customary international law
‘Introduction’ in J. Nijman and A. Nollkaemper (eds.), New Perspectives on the Divide Between National
and International Law (Oxford: Oxford University Press, 2007), 2.
31 Verdier and Versteeg, ‘International Law in National Legal Systems’, at 516.
32 Ibid, at 528 (countries that do not apply customary law directly in their domestic orders include
Algeria, Iran, and Sri Lanka).
33 UNESCO Convention for the Protection of the World Cultural and Natural Heritage, Paris,
16 November 1972, in force 17 December 1975, (1972) 11 ILM 1358 (‘WHC’).
34 A. von Bogdandy and D. Zacharias, ‘Zum Status der Weltkulturerbekonvention im deutschen
Rechtsraum—Ein Beitrag zum internationalen Verwaltungsrech’ (2007) 26(5) Neue Zeitschrift für
Verwaltungsrecht 527.
35 T. Buergenthal, ‘Self-executing and Non-self-executing Treaties in National and International Law’
in Collected Courses of the Hague Academy of International Law (vol. 235, Leiden, Boston: Brill, Nijhoff,
1992), 303, at 317.
36 This is true e.g. in Mexico, Uruguay, Germany, Italy, and the United States.
38 See e.g. Costa Rica, amendment to Art. 7 Constitution (1968).
39 See e.g. France, Cour de cassation, Administration des Douanes v Société Jacques Vabre, Judgment
of 24 May 1975 and Conseil d’Etat, Decision No. 108243 (Nicolo), 20 October 1989, on the interpretation
of Art. 55 Constitution.
superior to ordinary legislation has decreased in recent decades.40 However, it ought to be

noted that the status given to a norm is generally tempered by a widespread principle that
consists in presuming that a legislature did not intend a violation of international law, hence
giving, within certain limits, a higher status to international law.
On occasion, international environmental norms are granted a special status in the hier-
archy of norms on the ground that they seek to fulfil objectives of fundamental importance.
Two routes can be followed. Environmental norms can be given a special status via the
human rights route, when international human rights treaties are integrated in the consti-
tutionality block.41 The Constitutional Court of Colombia embraced this approach when it
struck down the entirety of the Forestry Law on the basis that it was likely to have signifi-
cant impacts on indigenous peoples in breach of ILO Convention 169 concerning Indigenous
and Tribal Peoples in Independent Countries.42 A more direct, but less common, possibility
consists in recognizing that international environmental norms per se are part of the con-
stitutionality block. The Supreme Court of Justice of the Dominican Republic did not close
the door to this possibility.43 Indeed, after having delineated the content of the country’s
block of constitutionality, it analysed the obligations arising from inter alia environmental
and natural heritage conventions, as well as soft law environmental instruments. By not
declaring the case to be inadmissible, the court implicitly considered that these conventions
were part of the block of constitutionality.44
51.3.1.3 Self-executing and Non-self-executing Law

The status of international law in domestic legal systems is also influenced by whether the
treaty is ‘self-executing’. In dualist states, the denomination is not consequential because all
treaties could be, in a sense, said to be non-self-executing since they all require legislation to
become law. However, in monist states, treaties that require additional legislative, e xecutive,
or administrative implementing measures will not be applicable without further specifica-
tion. The distinction between self-executing and non-self-executing norms is recognized
in almost every domestic legal system.45 The determination of whether a treaty is self-
executing is a domestic matter. The specific language of the treaty is not the only factor that
comes into play.46 Extraneous, non-legal factors, can also be relevant, including a court’s
attitude towards international law.47 Domestic courts often reject the self-executing nature
40 Verdier and Versteeg, ‘International Law in National Legal Systems’.

41 This is common in Latin American countries, such as Guatemala, Chile, Ecuador, Nicaragua,
Brazil, Mexico, and Costa Rica.
42 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.
43 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.
44 E. J. Féliz De Jesús, ‘Analysis of the Decision’, in Oxford Reports on International Law, paras. A9
and A13.
46 Buergenthal, ‘Self-executing and Non-self-executing Treaties’, at 317–18. 47 Ibid.
of international environmental treaties.48 It is, however, difficult to formulate the standards

used by national courts to reach such decision.49
51.3.2 Techniques of Transposition

Transposition is generally a requirement for both dualist countries (as a result of their con-
stitutional arrangements) and monist countries (given the lack of directly applicability of
environmental norms). Two variables—one international, the other domestic—determine
how international law is transposed in the domestic system. First, it depends on how—that
is, via which type of measures—the treaty can be implemented in domestic systems. Some
international treaties can be easily implemented by adopting an administrative regulation
while others require a complete legislative overhaul. Second, it depends on the extent to
which legislation pre-existing the adoption of the treaty is considered to be congruent or
divergent from its obligations.
When transposing international law, states follow different techniques. A common
approach consists in adopting a new legislative act. This is usual when an international
treaty dictates that the country drastically changes its previous practice—for instance, the
Convention on Access to Information, Public Participation and Decision-Making and
Access to Justice in Environmental Matters (Aarhus Convention).50 Such an approach is
also preferred when the treaty is particularly technical, such as the Montreal Protocol on
Substances that Deplete the Ozone Layer.51 Under these circumstances, the specific role
played by international law in driving the adoption of the legislative piece can be explicit,
ambiguous, or implicit. The adoption of the new law can lead to the abrogation of past law
that became incompatible with international law obligations: this is often the case when
previous practice has been completely modified by new conventional law, such as, for
instance, the creation of new maritime zones by the United Nations Convention on the Law
of the Sea (UNCLOS).52 The implementing legislative act can often set out basic obligations
and give competence to an executive body to issue secondary legislation, including decrees,
orders, or regulations to set up the details. For instance, the International Convention for
the Prevention of Pollution from Ships (MARPOL)53 was transposed in China into a g eneral
48 United States, District Court for the District of Hawaii, Greenpeace v Stone, 748 F.Supp. 749, 767 (in
relation to the Basel Convention); United States District Court, E. D. California, HJ Justin and Sons v
Brown, 519 F.Supp 1383 (about CITES).
50 Convention on Access to Information, Public Participation and Decision-Making and Access to
Justice in Environmental Matters, Aarhus, 25 June 1998, in force 30 October 2001, (1999) 38 ILM 517
(‘Aarhus Convention’).
51 Protocol on Substances that Deplete the Ozone Layer, Montreal, 16 September 1987, in force
1 January 1989, (1987) 26 ILM 154.
52 United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, in force
16 November 1994, 1833 UNTS 3 (‘UNCLOS’).
53 International Convention for the Prevention of Pollution from Ships, London, 2 November 1973,
amended in 1978, in force 2 October 1983, (1973) 12 ILM 1319 (‘MARPOL’).
‘Marine Environmental Protection Law’ that was followed by twenty-five regulations on

dumping waste at sea.54
Alternatively, existing law relevant to the subject matter of the international treaty can be
modified to reflect new international requirements. Because environmental treaties tend to
affect different types of legislation, it is usual that several acts have to be amended: for
instance, the implementation of CITES required changes in laws not only relative to bio-
diversity protection but also custom procedures, conspiracy, smuggling, and mail fraud.
The opposite is also possible, where one act can implement different conventions.55
The content of the treaty guides in part the technique(s) used by the state; but the rest is
at the discretion of policy-makers. For instance, the Convention on the Control of
Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention)56
has been broadly transposed in one of the two following ways.57 A first category of coun-
tries implemented the Basel Convention via an independent parliamentary act on waste,58
which has sometimes been complemented by more specific primary legislation,59 second-
ary legislation (regulations),60 or national policies.61 A second category of countries con-
sidered that a general law on environmental protection, making some references to waste,
was sufficient to meet the requirements set by the treaty.62
51.4 Effects of International Law

Within Domestic Law
The interactions between environmental law and public international law raise a second
question, of an operational nature this time, regarding the impact of international law upon
domestic law. The discussion that follows offers a categorization of the main or most fre-
quent types of effects on the basis of the unit of analysis (1), the types of incidence (2), and
the beneficiaries of these effects (3).
54 M. Oksenberg and E. Economy, ‘China: Implementation Under Economic Growth and Market
Reform’ in E. Brown Weiss and H. K. Jacobson (eds.), Engaging Countries: Strengthening Compliance with
International Environmental Accords (Cambridge M.A.: MIT Press, 2000), 353, at 368.
55 See, for instance, Australia’s 1999 Environment Protection and Biodiversity Conservation Act,
enacted to implement the provisions of the Convention on Biological Diversity and other international
environmental agreements into Australian law.
56 Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal,
Basel, 22 March 1989, in force 24 May 1992, (1989) 28 ILM 657 (‘Basel Convention’).
57 The analysis is based on the national legislation gathered by the Secretariat of the Basel Convention
on its website: http://www.basel.int/Countries/NationalLegislation/tabid/1420/Default.aspx.
58 See e.g.,Croatia, Bhutan, Dominica, Gambia, Guyana, New Zealand, South Africa.
59 e.g. Dominica complemented its act on waste with relevant provisions in the Water and Sewerage
Act, and the Pesticides Control Amendment Act.
60 See e.g. Mauritius.
61 See e.g. India’s waste policy described as being ‘in harmony with the Basel Convention’.
62 See e.g. Bahrain, Bangladesh, Egypt, Kenya, Kiribati, Morocco, Qatar, Rwanda, Seychelles, Sudan,
Syria, and Yemen.
51.4.1 Unit of Analysis

As discussed above, ‘international law’ is not a monolithic block. States have different
sensibilities to international law depending on where it originates. The following discussion
presents the effects of four international law sources on domestic environmental law: trea-
ties (section 51.4.1.1), custom (section 51.4.1.2), principles (section 51.4.1.3), and soft law
(section 51.4.1.4).
51.4.1.1 International Treaties

The effects that an international treaty might have on domestic law change based on
variables relative to the treaty itself (its content) and to the state party (its capabilities
and willingness to implement the treaty). On the one hand, an international agreement
can encourage a country to adopt implementing legislation that goes beyond the strict
requirements it sets. This has not gone unchallenged in court, as plaintiffs have argued
that international law sets a ceiling which preempts more stringent state regulation, but
such arguments have generally failed to convince domestic courts.63 On the other hand,
international treaties can also have very limited (or no) impact in the three following cases:
i) a state with a sophisticated legislative framework can meet its obligations without
changing its domestic laws; ii) domestic law does not meet the requirements but the coun-
try lacks the political will, technical knowledge, or financial capabilities to put domestic law
in compliance; iii) legislation has been adopted but remains programmatic and vague.
Furthermore, some countries prefer waiting until their legislation is in compliance before
ratifying a treaty64 while others adopt implementing legislation significantly later (if ever)
after their ratification.65
One difficult question relates to the legal consequences arising from a treaty that has not
yet been given full domestic effect. For instance, half of the national legislations creating
exclusive economic zones, a concept that became widely accepted during the negotiations
of UNCLOS, were adopted even before the treaty was finalized.66 However, the situation
63 United States Court of Appeals, Ninth Circuit, Man Hing Ivory v Denkmejian, 702 F.2d 760 (1983)
(CITES explicitly permits stricter national measures); United States Court of Appeals, Ninth Circuit, Chevron
USA v Hammond, 726 F.2d 483 (1984) (in relation to MARPOL); United States, Supreme Court of South
Dakota, State v Kemp, 44 N.W.2d 214 (S.D. 1950) (the migratory bird treaties entered into with Great Britain
and Mexico do not preclude US states from giving migratory birds additional protection); United States
District Court for the Western District of Washington, Intertanko v Lowry, 947 F.Supp 1484 (1996) (in rela-
tion to MARPOL); India, Supreme Court, 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 (on the Basel Convention).
64 See e.g. Switzerland: P. Cullet, ‘International Environmental Law in Domestic Courts: Switzerland’
in M. Anderson and P. Galizzi (eds.), International Environmental Law in National Courts (London:
British Institute of International and Comparative Law, 2002), 195, at 207.
65 For instance, the secretariat of CITES considers that 19 per cent of the parties do not have legisla-
tion that meets the requirements for the implementation of CITES. See ‘Updated Legislative Status Table’,
available at: https://cites.org/legislation.
66 United Nations Secretary General, ‘Law of Sea: Report’ (1994) UN Doc. A/49/631, para. 31 (noting
that half of the legislation adopted by costal states was enacted between 1974 and 1978, before the end of
the Third United Nations Conference on the Law of the Sea).
becomes more legally challenging when it relates to the potential domestic effects of an
international treaty that has not been properly implemented. It goes beyond the practice
commonly followed by courts to rely on non-ratified international treaties as guidance to
interpret applicable customary law.67 Indeed, it relates, more controversially, to whether a
treaty that has not been (in part or in its entirety) transposed in domestic law should be
given effect. Two principles clash, the principle that a treaty that has not been given parlia-
mentary consent cannot be democratically given effect in a dualist country; and the prin-
ciple that, under international law,68 a country should not defeat the object and purpose of
a treaty it has signed but not yet ratified.69 Courts have ruled differently on this matter,70
although a surprisingly high number of cases in dualist countries have considered unimple-
mented international treaties to have either direct effects,71 or, at least, to create ‘legitimate
expectations’ that its obligations would be fulfilled.72
51.4.1.2 Custom
The effects of customary environmental obligations on domestic legal systems are rather
minimal. These obligations are limited in number—they consist essentially in the principle
of prevention, the obligation to undertake an environmental impact assessment, and the
duty to cooperate (and its sub-components notification and consultation)73—and their
content remains to be fully determined. Courts in both monist and dualist countries are
reluctant to apply them directly, especially if more specific expressions of the norms can be
found in international treaties or domestic legislation.74 There are, however, exceptions to
this position: most prominently, Indian courts have been particularly generous in their
67 US, Court of Appeals (Federal Circuit), American Pelagic Fishing Company LP v United States, 34
ELR 20075, ILDC 310 (US 2004), 16 August 2004, Oxford Report on International Law (UNCLOS as
customary international law). See also Switzerland, Federal Supreme Court, 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 (referring to Convention on the Law of the Non-navigational Uses
of International Watercourses as reflecting customary international law, although Switzerland had not
signed this agreement and it had not yet entered into force).
68 Article 18 Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, in force 27 January 1980,
1155 UNTS 331.
69 Canada, Court of Appeal for British Columbia, MacMillan Bloedel v Joan Russow and Betty Kleiman
et al, 6 December 1994, VI 01984 (although Canada and its provinces have an obligation not to defeat the
object and purpose of the UNFCCC and Convention on Biological Diversity, the two treaties could not
be applied to the case because they had not been implemented in Canadian law).
70 United States, Superior Court of Delaware, 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 (refusing to consider the Basel Convention, signed but not ratified by the US, as part
of international law).
71 United Kingdom, Queen’s Bench Division (Administrative Court), R. (Greenpeace Ltd) v Secretary
of State for Trade and Industry [2007] EWHC 311 (referring to the Aarhus Convention despite the fact
that it had not being formally implemented by Parliament).
72 Australia, High Court, Minister for Immigration and Ethnic Affairs v Teoh, (1995) 182 CLR 273
(where an unimplemented but ratified human rights convention was held to create ‘legitimate expecta-
tions’).
73 J. Viñuales, ‘La Proteccion Ambiental en el Derecho Consuetudinario Internacional’ (2017) 69(2)
Revista Española de Derecho Internacional 71.
74 Crawford, Brownlie’s Principles, at 56.
c onsecration of a number of environmental norms as part of customary international law,75

even when their customary status at the international level remains disputed.
51.4.1.3 Environmental Principles

Environmental principles play a significant role in both domestic and international law,
as they allow norms to navigate freely between the political and the legal.76 It is debated
whether some norms, such as sustainable development or precaution, have integrated cus-
tomary law or, on the contrary, qualify only as policy principles. Courts respond to this
challenge differently, some have cautiously left the determination of their influence to gov-
ernmental policy,77 while others have not been shy to consecrate them as customary.78
Notwithstanding the uncertainties surrounding their legal status, principles of international
environmental law are regularly used by domestic courts as interpretative guidance.79
51.4.1.4 Soft Law

Finally, ‘soft law’, understood as taking the form of political declarations or of resolutions of
conferences/meetings of the parties, is also an important source of international environ-
mental law.80 Indeed, despite their formally non-binding nature, they can spur the adoption
of new policies81 and can be domesticated in to law.82
However, the non-legally binding nature of these instruments is problematic when it
comes to assessing their normative value in a judicial context. Judicial attitudes to soft law
fall under three categories. The first option consists in refusing to give non-legally binding
instruments any legal effects. This attitude is most consistent with traditional theories that
do not accept soft law as a source of international law. US courts feature prominently in this
category, as they generally consider that soft law documents are political commitments and
not enforceable law.83 A completely opposite attitude, followed by Indian courts for instance,
75 See e.g. India, Supreme Court, Vellore Citizens’ Welfare Forum v Union of India, Writ Petition (C)
No. 914 of 1991, Judgment, 26 April 1996.
76 E. Scotford, Environmental Principles and the Evolution of Environmental Law (Oxford; Portland,
Oregon: Hart Publishing, 2017), 5.
77 United Kingdom, High Court, Queen’s Bench Division, R v Secretary of State for Trade and Industry
ex Parte Duddridge and ors, 3 October 1994 (1995) Env L R, 151 (in relation to precaution).
78 See e.g. Vellore (the concepts of sustainable development, precaution, and polluter-pays are part of
customary international law).
79 Indonesia, District Court of Bandung, Dedi, et al. v Perhutani, et al., 49/Pdt.G/2003/PN.BDG
(2003) (the international precautionary principle has not been transposed in Indonesian environmental
law but can still guide the court’s decision). See A. Wibisana, ‘The Development of the Precautionary
Principle in International and in Indonesian Environmental Law’ (2011) 14 Asia Pacific Journal of
80 P.-M. Dupuy, ‘Soft Law and the International Law of the Environment’ (1991) Michigan Journal of
81 e.g. Sustainable Development: The UK Strategy (HMSO, 1994), the first policy drafted as a response
to Rio’s Agenda 21.
82 Kenya, Nairobi High Court, Nabori and ors v Attorney General and ors, High Court decision,
Petition no. 466 of 2006, ILDC 1337 (KE 2007), 11 December 2007 (considering that the Stockholm and
Rio principles have been domesticated in Kenyan law).
83 See, for instance, United States District Court, E.D. New York, United States v One Etched Ivory
Tusk of African Elephant, 871 F.Supp.2d 128 (2012) (refusing to use a CITES resolution to help define a
consists in integrating some soft law norms into customary law.84 In between these two
extremes lies the more nuanced, and most common, position that consists in using non-
binding instruments (sometimes including non-governmental documents85) as a means of
interpretation.86
51.4.2 Types of Incidence

The type of effects that public international law might have on environmental domestic law
vary widely, and are ranked in the following discussion from the most obvious to the most
diffuse: i) direct effect (section 51.4.2.1); ii) interpretative role (section 51.4.2.2); and iii) non-
technical normative influence (section 51.4.2.3).
51.4.2.1 Direct Effect

International environmental obligations rarely have direct effect in domestic courts because
they usually only impose obligations on states. As a result, they have been deemed inapplic-
able to private parties87 or in the absence of transboundary harm.88 In addition, because
international environmental obligations are often considered to be non-self-executing,
‘hunting trophy’). See also, United States, Court of Appeals (DC Circuit), 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) (the decisions of the meetings of the parties to the Montreal Protocol create political commit-
ments, but are not law enforceable in federal courts); Calcaño Pallano and ors v AES Corporation and ors
(the Cairo Guidelines and Principles for the Environmentally Sound Management of Hazardous Wastes
of the United Nations Environment Programme do not have force as international law). See also
Germany, Saxony, Higher Administrative Court, 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 (the decisions of the World Heritage Committee do not have binding effects).
84 Vellore.
85 See e.g. Germany, High Administrative Court of Koblenz, OVG Koblenz Case 1 A 10200/09
(28 October 2009) (2009) 23 Neue Zeitschrift für Verwaltungsrecht Rechtsprechungs-Report 310 (relying
on IUCN guidelines to construe national wildlife law).
86 See e.g. 114957 Canada Ltée (Spraytech, Société d’arrosage) (relying on the 1990 Bergen Ministerial
Declaration on Sustainable Development and its recognition of precaution to interpret domestic law);
Australia, Federal Court, Booth v Bosworth and Bosworth, Primary decision, (2001) 114 FCR 39, (2001)
117 LGERA 168, [2001] FCA 1453, ILDC 531 (AU 2001) (referring to the operational guidelines of the
WHC to assess the heritage value of a property); South Africa, South Gauteng High Court, Mazibuko
and ors v City of Johannesburg and ors, First instance decision, Case No 06/13865, [2008] ZAGPHC 128,
ILDC 973 (ZA 2008) (interpreting the right to water under the South African Constitution in light of
international human rights treaties and non-legally binding instruments); Dominican Republic, Supreme
Court of Justice, Pleno (considering the Rio Declaration and Agenda 21 to interpret the constitution).
87 United States, Court of Appeals, Fifth Circuit, 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 (rejecting the application of the polluter-pays prin-
ciple, the precautionary principle, and the proximity principle in a case between private p
arties).
88 United States, Court of Appeals, Second Circuit, Flores and ors v Southern Peru Copper Corporation,
29 August 2003, ILDC 303 (US 2003) (refusing to recognize customary rules against intra-national
pollution).
domestic courts regularly reject their direct applicability on the basis that they do not have
enough normative precision.89
International law can nevertheless have direct effects when used to command executive
action. For instance, the Supreme Court of Nepal relied on the Stockholm Declaration
on the Human Environment (Stockholm Declaration)90 and the Rio Declaration on
Environment and Development (Rio Declaration)91 to order the government to pass envir-
onmental laws.92 Similarly, an appellate court in Pakistan used international environmental
law principles to direct several ministries to nominate a climate change focal person and to
create a climate change commission.93 Courts, however, can be reticent to be so proactive. The
Dutch courts in the climate case Urgenda took the limitations of their powers seriously.94
Yet, they concluded that although climate change is the ‘subject of political decision-
making’, it does not mean that the judge cannot exercise judicial review.95 Other courts,
however, and, most prominently in the United States, have used the ‘political question’ doc-
trine (or an equivalent) to avoid deciding politically sensitive issues.96
51.4.2.2 Interpretation
Domestic courts prefer making their decisions on the basis of precise norms, which often
disqualifies international environmental law norms. However, international law is com-
monly used as an interpretative tool under two types of circumstances. First, it can facilitate
the interpretation of enabling instruments.97 Difficulties might arise when a piece of legis-
lation does not clearly mention that it seeks to implement a treaty. However, when the
89 International obligations are often considered to be vague and devoid of meaningful standards or
not self-executing: Flores and ors (considering that the ICCPR is not self-executing); Germany, Higher
Administrative Court of Hamburg, OVG Hamburg Case 1 Bf 162/04 (30 September 2004) (2004) 16
Zeitschrift für Umweltrecht 208 (ruling that UNCLOS does not provide standing for individuals in
domestic courts).
90 Declaration of the United Nations Conference on the Human Environment (Stockholm, 16 June
1972), (1972) 11 ILM 1416 (‘Stockholm Declaration’).
91 Rio de Janeiro Declaration on Environment and Development (Rio de Janeiro, 3–14 June 1992),
(1992) 31 ILM 876 (‘Rio Declaration’).
92 Nepal, Supreme Court, 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.
93 Pakistan, Lahore High Court Green Bench, Leghari v Federation of Pakistan, (2015) W.P. No.
25501/201 (4 and 14 September 2015).
94 The Netherlands, Hague District Court, Urgenda Foundation v The State of the Netherlands,
C/09/456689/HA ZA 13–1396 (24 June 2015), section 7, paras. 4.94–4.102.
95 Ibid., at para. 4.98. Upheld in The Netherlands, Hague Court of Appeal, The State of the Netherlands
v Urgenda Foundation, C/09/456689/HA ZA 13–1396 (9 October 2018), paras. 68–9.
96 J. R. May, ‘AEP v. Connecticut and the Future of the Political Question Doctrine’ (2011) 121 Yale Law
Journal Online 127.
97 See e.g. United Kingdom, High Court, R v Secretary of State for Trade and Industry, ex parte
Greenpeace (No. 2) (2000) Env L Rev 221 (interpreting the EU Habitats Directive in a way most consistent
with a range of international agreements on marine conservation); Finland, Supreme Administrative
Court, Geological Survey of Finland, 31 March 1999, 31.9.1999/692 KHO:1999:14, ILDC 930 (FI 1999)
(reviewing a decision of the trade ministry in light of Art. 27 International Covenant on Civil and
Political Rights (ICCPR) as incorporated into Finnish law); Germany, Federal Administrative Court,
BVerwG Case 7 C 7.10 (14 July 2011) (2011) 22 Zeitschrift für Umweltrecht 538 (referring to the London
Dumping Convention and its Protocols to interpret the term ‘disposal’ under the German High Seas
intention of the parliament is clear, then the act will be construed to conform as closely as
possible to the treaty. Secondly, international law can be used to interpret other pieces of
domestic legislation the raison d’être of which does not originate in international law: most
notably, constitutional rights are increasingly interpreted in light of international environ-
mental obligations and principles.98 Not every country uses international law as an inter-
pretative aid in the same ways. For instance, US courts tend to consider that international
environmental law does not add much to the provisions of US law, and hence prefer to rely
purely on US law. On the contrary, Dutch courts have been active in employing inter-
national environmental law as an interpretative aid.99
51.4.2.3 Non-technical Normative Effects

The influence of international law can also be more indirect and diffuse. Political declar-
ations, which are not technically binding, can be more influential on domestic systems than
international treaties: the Stockholm and Rio Declarations were followed by substantial
legislative activity in the field of environmental protection for instance.100 Similarly, despite
the failure to reach an internationally binding agreement at the 2009 UNFCCC 15th confer-
ence of the parties, the Copenhagen Accord (a political declaration) and subsequent
negotiations encouraged states to continue legislating on climate action.101 Significant
constitutional changes were also made under the influence of international normative
activity. For instance, the German Basic Law was amended following the 1992 Rio Summit to
integrate a new Article 20a regarding the obligation of the state to protect the environment.102
Equally, the French Constitutional Charter on the Environment of 2005 was heavily inspired
by international practice.103 In addition, international law can influence the work of exter-
nal experts and consultants hired to help prepare national laws in developing countries.
Dumping Act); Australia, Federal Court, Booth v Bosworth and Bosworth, Primary decision, (2001) 114
FCR 39, 17 October 2001, (interpreting ‘biodiversity’ in light of the Convention on Biological Diversity).
98 See e.g. Mazibuko (interpreting the right to water under the South African Constitution in light of
international human rights treaties and non-legally binding instruments); Cyprus, Supreme Court,
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, ILDC
1790 (CY 1991) (giving standing to a collectivity by interpreting the constitutional right to life in light of
the 1980 European Conference on the Environment and Human Rights that declared that the human
right to the environment was a precondition for the rights to life and health); Kenya, Naibori High Court,
Waweru, Mwangi (joining) and ors (joining) v Kenya, Miscellaneous civil application, Case No 118 of
2004, 2 March 2006, ILDC 880 (KE 2006) (the Bill of Rights includes a right to a clean environment in
light of the international concept of sustainable development found in the Stockholm, Rio and
Johannesburg Declarations).
99 A. Nollkaemper, ‘International Environmental Law in the Courts of the Netherlands’ in Anderson
and Galizzi, International Environmental Law in National Courts, 183, at 188.
100 CSD Rio Application Report, paras. 67–9.
101 M. Nachmany, S. Fankhauser, J. Setzer, and A. Averchenkova, Global Trends in Climate Change
Legislation and Litigation (London: Grantham Research Institute on Climate Change and the
Environment, May 2017), 9–10.
102 Germany, ‘Gesetz zu Änderung des Grundgesetzes’, Bundesgesetzblatt, Jahrgang 1994, Teil I, No 75
vom 03.11.1994.
103 France, ‘Charte de l’Environnement de 2004’, Loi constitutionnelle no. 2005–205 du 1er mars 2005
(JO du 2 mars 2005). See S. Maljean-Dubois, ‘Le projet de charte française de l’environnement au regard
du droit européen et international’ (2004) 4 Revue européenne de droit de l’environnement 410.
They often rely on the law of developed countries as examples, but also on international
instruments, including non-legally binding ones. This practice can be fostered by the
phenomenon of ‘environmental conditionality’ following which international funders make
their aid conditional upon the beneficiaries adopting special environmental laws, with
standards that are very often based on international practice.104
International law is often used by domestic courts for its persuasive power rather than for
its strict legal effects.105 The technique avoids having to engage in a detailed analysis of the
status of a norm. As a result, international soft law documents have been recognized to have
‘persuasive value and command respect’,106 and international environmental law principles,
including most prominently the principle of sustainable development, have been relied
upon for their international ‘significance and currency’.107
National courts often remain ambiguous on the role international law played in their
decision. For instance, in People United for Better Living in Calcutta v State of West Bengal,
the Indian High Court started by noting that ‘India is a contracting party to the Ramsar
Convention . . . under which she is obliged to promote the conservation of wetlands habitat
in her territory’, but, then, did not make any other reference to the Convention.108 Equally,
when a court relies on an environmental principle, it is unclear whether it takes its source
in domestic or international law, or even in natural law. This ambiguity is most evident in
the well-known Leatch case in which an Australian court considered that the principle of
precaution was a ‘statement of common sense’ to bypass the debate on the ‘incorporation of
international law into domestic law’.109 Similarly, a US court noted that the principles of the
Stockholm Declaration ‘do not set forth any specific prescriptions’, and, in particular, that
its Principle 21 only creates a ‘general sense to the responsibility of nations’ to prevent envir-
onmental harm.110
International law is generally invoked to contextualize a dispute within the international
legal order and to strengthen an argument principally based on domestic law.111 A striking
example can be found in the H-Acid case, in which the Indian Supreme Court considered
104 M. Abdelwahah Bekhech, ‘Some Observations regarding Environmental Covenants and

Conditionalities in World Bank Lending Activities’ (1999) 3 Max Planck United Nations Yearbook 287.
105 D. Bodansky and J. Brunnée, ‘Introduction: The Role of National Courts in the Field of International
Environmental Law’ in Anderson and Galizzi, International Environmental Law in National Courts, at 20.
106 Pakistan, Supreme Court, Zia v WAPDA, PLD 1994 SC 693, para. 9; Sri Lanka, Supreme Court,
Bulankulama v Sec’y, Ministry of Indus. Dev. [2000] LKSC 18 (referring to international declaration as
‘international standard setting instruments’).
107 See e.g. India, Supreme Court, Jayal and anor v India and anor, Civil Writ Petition, 1 September
2003, [2004] 9 SCC 362, ILDC 456 (IN 2003) (referring to the international legal context).
108 India, Calcutta High Court, People United for Better Living in Calcutta v State of West Bengal,
24 September 1992, AIR 1993 Cal 215, para. 25.
109 Australia, Land and Environment Court of New South Wales, Leatch v National Parks and Wildlife
Service 81 LGERA 270 (describing precaution as ‘common sense’). See also, similarly, Canada, Ontario
Court of Justice, 611428 Ontario Ltd v Metropolitan Toronto and Region Conservation Authority (1996) OJ
No. 1392 (mentioning precaution but without identifying its legal basis).
110 United States, District Court, Southern District of New York, Amlon Metals, Inc. v FMC Corp., 775
F Supp 668 (1991).
111 See e.g. India, Supreme Court, 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 (noting that water is a basic need recognized in the constitution
and in resolutions of the United Nations General Assembly).
that Indian law recognized the polluter-pays principle without referring to any legal basis,
except for a passing reference to the Treaty establishing the European Economic Community
(Treaty of Rome), to which the country is evidently not party. This unusual reference can
only be interpreted as a normative statement positing that the principle should be adopted
in the Indian legal system because it is prevalent in other systems.112 Moreover, references
to international law are used to demonstrate that environmental degradation is a global
issue that mobilizes the entire international community, and hence requires the involvement
of every state. The Supreme Court of Nepal followed this approach when, after having
engaged in a rather lengthy overview of the history of international environmental law, it
declared that ‘the agenda of pollution control and environmental protection is not an
agenda of any specific country rather it is an issue of collective interest, concern and obliga-
tion of the world community as a whole’.113 Invocations of international law to contextualize
a case within the framework of what can be seen as a higher authority can deflate criticisms
of judicial activism.
51.4.3 Invocability
A final question regarding the effects of public international law on environmental domes-
tic legal systems relates to who is able to rely on them. The extent to which both state author-
ities (section 51.4.3.1) or individuals (section 51.4.3.2) are able to do so remains uncertain.
51.4.3.1 State Authorities

Three scenarios ought to be distinguished. The first, and most obvious, concerns the use of
international law by central authorities to legislate and to justify (generally successfully)
their actions in case of judicial review.114
The second scenario is more complex, as it relates to the status of public international law
in federal states. It concerns situations in which federal states have relied on their treaty-
making powers to justify their competence to legislate on a specific subject matter. This
position was accepted by some courts in the context of environmental cases that have
become landmark decisions in constitutional law.115 However, other courts have been more
reluctant to conflate external treaty-making powers and internal legislative powers. For
instance, in Crown Zellerbach, the Supreme Court of Canada ruled that the federal state has
112 India, Supreme Court, 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.
113 Nepal, Supreme Court, 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, para. 59.
114 See e.g. the Netherlands, President Afd G RvS, 30 May 1984 (where the government relied on the
1972 Convention from the Prevention of Marine Pollution by Dumping from Ships and Aircraft), dis-
cussed in Nollkaemper, ‘International Environmental Law in the Courts of the Netherlands’, at 184.
115 United States, Supreme Court, State of Missouri v Holland, 252 U.S. 416 (1920) (concerning federal
legislation giving effect to a migratory bird treaty with Canada); Australia, High Court, Commonwealth
of Australia v State of Tasmania (1983) 158 CLR 1 (a legal challenge to a proposed dam development affect-
ing a site in Tasmania that had been designated under the World Heritage Convention).
competences to implement the 1972 Convention on the Prevention of Marine Pollution by

Dumping of Wastes and Other Matter Canada but only on the basis that pollution preven-
tion was a matter of ‘national’ importance, and not on the grounds of a general principle of
federal jurisdiction to implement international agreements.116
A final, and less common, situation relates to cases in which state authorities of foreign
countries rely on international law: i) to get standing in a domestic court; ii) to enforce
international law. The jurisprudence tends to be rather conservative, with administrative
courts often denying standing to both foreign individuals and authorities in lawsuits involv-
ing harmful transboundary environmental impacts,117 although the requirements of the
Aarhus Convention facilitating access to justice in the context of environmental disputes118
contributes to an evolution of practice.
51.4.3.2 Individuals
Individuals can also rely on the effects of international law to i) derive rights from inter-
national norms; ii) claim their enforcement—even if not as a right; or iii) refer to them for
interpretation purposes.
5 1.4.3.2.1 individual rights
Can international law give rise to an individual right? The answer depends in part on the
type of international obligation. It is widely acknowledged that international obligations
that regulate inter-state relations do not create actionable individual rights. On rare occa-
sions, and most controversially, courts have applied inter-state environmental norms hori-
zontally, such as the Rotterdam District Court that applied the prohibition to cause
transboundary harm in a case where Dutch horticulturalists sued a French potash mining
company for harm caused by the dumping of saline waste in the Rhine.119 Some inter-
national treaties, however, expressly give subjective rights to individuals—such as the
Nordic Convention on the Protection of the Environment.120
Most often, it remains unclear whether the norm can give rise to individual rights. Some
courts rule conservatively that treaties are not presumed to create rights enforceable in
front of domestic courts if there is no express language that creates such individual
rights.121 Others adopt a more progressive approach and undertake a detailed analysis of the
116 Canada, Supreme Court, R v Crown Zellerbach (1988) 1 SCR 401.

117 Austria, Constitutional Court, 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 (denying standing to foreign individuals and municipalities in a lawsuit
involving harmful environmental impacts of an airport expansion project). See, however, the extension
of the territoriality principle in German jurisprudence in Emsland.
118 Article 9(2) Aarhus Convention.
119 The Netherlands, Rotterdam Court, Handelskwekerij G-J Bier B.V. Stichting Reinwater v Mines de
Potasse d’Alsace S.A., 16 December 1983, (1984) 15 NYIL 471–84. The decision was reversed on appeal: The
Netherlands, Court of Appeal of The Hague, Mines de Potasse d’Alsace SA v Onroad Goed Maatschappij
Bier BV and Others, 10 September 1986, IELR 343.
120 Article 3 Nordic Convention on the Protection of the Environment, Stockholm, 19 February 1974,
in force 5 October 1976, (1974) 13 ILM 511.
121 United States, Texas, District Court for the Eastern District of Texas [ED Tex] 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, paras. 14–15.
provision based on variable criteria. A classical method, derived from the Jurisdiction of the
Courts of Danzig advisory opinion rendered by the Permanent Court of International
Justice,122 consists in identifying whether the parties had the intention to make a provision
invocable.123 The Court was asked to determine whether an international agreement
between Poland and Danzig regulating the status of certain railroad officials was directly
applicable in the Danzig courts and could therefore be used by these officials as a legal basis
against the Polish railroad authorities. The Court answered in the positive, considering that
although an international agreement ‘cannot, as such, create direct rights and obligations
for private individuals’, the intention of the parties may be the adoption of rules ‘creating
individual rights and obligations and enforceable by the national courts’.124 Alternatively
(or as a complement), domestic courts resort to objective criteria, such as the precision of
the provision.125 In this context, the difficult question—regularly raised in the context of
human rights obligations126—of whether a clause calling for domestic implementation pre-
cludes the provision from being directly invocable remains unsettled.127 But, overall, des-
pite different techniques to assess the invocability of an international norm, domestic courts
tend to be rather reluctant to give full effects to international provisions.128
5 1.4.3.2.2 enforcement
Although an international norm might not create direct effects on the individual, it does not
mean that it is devoid of effects in domestic courts. The core factor that will determine
whether an individual can enforce an international obligation is whether the treaty provision
is considered to be self-executing, or the customary norm sufficiently specific, to be action-
able. For instance, the export/import permit system applicable pursuant to CITES is fre-
quently enforced in courts,129 while the UNFCCC that provides for programmatic obligations
122 Jurisdiction of the Courts of Danzig, Advisory Opinion, (1928) P.C.I.J., Ser. B, No. 15.
123 See e.g. ECJ (Grand Chamber), The 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, Preliminary Ruling, 3 June 2008 (ruling that UNCLOS ‘does not establish rules intended
to apply directly and immediately to individuals and to confer upon them rights or freedoms capable of
being relied upon against States, irrespective of the attitude of the ship’s flag State’).
124 On the ambiguity, see Buergenthal, ‘Self-executing and Non-self-executing Treaties’, at 324.
125 See, for instance, R. Abraham, ‘Les effets juridiques, en droit interne, de la Convention de New
York relative aux droits de l’enfant. Conclusions sur Conseil d’Etat, Section, 23 avril 1997, Groupe
d’information et de soutien des travailleurs immigrés (GISTI)’ (1997) RFDA 585 (identifying three
cumulative criteria: i) the treaty shall provide ‘subjective’ rights to individuals; ii) the treaty shall be self-
executing; and iii) its wording needs to be sufficiently precise).
126 See B. Conforti, ‘National Courts and the International Law of Human Rights’ in B. Conforti and
F. Francioni (eds.), Enforcing International Human Rights in Domestic Courts (The Hague: Kluwer,
1997), 8–9.
127 Y. Iwasawa, ‘Domestic Application of International Law’ in Collected Courses of the Hague Academy
of International Law (vol. 378, Leiden, Boston: Brill, Nijhoff, 2016), 1, at 43.
128 See e.g. France, Conseil d’Etat, Association citoyenne intercommunale des populations concernées par
le projet d’aérodrome de Notre-Dame-des-Landes, no. 267287, Rec. Lebon, 28 December 2005 (Art. 8 Aarhus
Convention is an inter-state obligation that does not create direct effects on the internal legal system).
129 United States, Court of Appeals for the District of Columbia Circuit, Defenders of Wildlife v
Endangered Species Scientific Authorities, 659 F.2d 168 (1981). See also T. Scovazzi, ‘The Implementation
of CITES and MARPOL in Italy’ (1996) 5 European Environmental Law Review 315.
has been considered to be a ‘policy document’ that cannot create actionable domestic claims.130
The determination will be based both on the international obligation itself but will also
depend on two additional factors, namely its status in the hierarchy of norms131 and the legal
traditions of judicial restraint towards acts of government.132 The ability of individuals to
invoke international commitments in domestic courts contributes to ensuring that states
comply with their international obligations. It remains that cases of judicial review are rare;
and, when they do occur, it is often uncertain whether the review was based entirely on inter-
national law, or if other considerations came into play.133
5 1.4.3.2.3 interpretation
Parties might have intended provisions to be applicable only to them, but it does not mean
that they cannot be used to interpret open standards of national law. Again, the Dutch case
of Urgenda134 provides an excellent example. On the one hand, the Hague District Court
made clear that the obligations in the UNFCCC, Kyoto Protocol and the no-harm rule are
not binding on citizens.135 At the same time, it ruled that, based on the principle that a state
is supposed to ‘want to meet its international law obligations’,136 open standards of national
law have to be interpreted in light of the Netherlands international obligations.137
51.5 Drivers
Articulating meaningful generalizations on how environmental law and public inter-

national law relate to each other is not an easy task. The legal scholarship lacks a practical
understanding of how the domestic and international spheres inter-relate. Some character-
istics of environmental law (both international and domestic)—already mentioned as being
the programmatic nature of instruments, the blurred normative distinctions between law
and policy, and the growing role of the judiciary—complicate the matter further. Evaluating
the extent to which international law influences domestic environmental law is a tricky
exercise. Some have argued that the influence remains very limited, offering the following
poetic comparison: ‘international environmental law is akin to the grain of sand in the
130 Australia, New South Wales, Land and Environment Court, 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 (the UNFCCC does not
impose direct obligations on private parties in the absence of a more specific governmental policy). See
also Germany, Federal Administrative Court, BVerwG Case 4 C 4/02 (13 March 2003) (2003) 22 Neue
Zeitschrift für Verwaltungsrecht 738 (the Kyoto Protocol does not create direct obligations on how its
objectives ought to be met).
131 Law 1021 of 2006 (ILO Convention 169 is part of the constitutionality block and is therefore given
direct effect).
132 See Crawford, Brownlie’s Principles, at 72–7, 83–8, and 103–10, on the different approaches to the
justiciability of acts of government.
133 For a case of ambiguity, see the Netherlands, Council of State, G.J.P. Ziers v Provincial Executive
Gelderland, Administrative Justice Division AB 1995.
134 Urgenda Foundation. 135 Ibid., at para. 4.42. 136 Ibid. 137 Ibid., at para. 4.52.
(national law) oyster but the resulting pearl is more to do with the oyster than the sand’.138
The extent to which this is representative of the complex interactions between the two levels
of governance is uncertain. It is clear that the theoretical influences of international law on
domestic systems are not representative of the plurality of factors that determine the inter-
actions. This final section identifies drivers exogenous to domestic systems that influence
the relationship between domestic and international law.
The first intuitive basis upon which to draw a comparison on how domestic environ-
mental legal systems relate to public international law is to rely on the traditional monist-
dualist distinction. However, as discussed previously, the dichotomy loses its relevance
given that the effects of international law will be the same if a dualist approach is adopted
or if the monist approach is limited by the requirement of direct effect.139 By way of
example, judges in monist countries can be reluctant to apply international environmental
law whereas in dualist countries they often rely on international environmental law as a
means of interpretation.140
Similarly, concentrating on a country’s legal system and/or its constitutional order fails to
properly explain the interactions between environmental and public international law. A
direct correlation between the number or success rate of cases invoking international envir-
onmental law and a country’s legal system is not evident. This is perhaps best evidenced by
the fact that the constitutional background is a stable variable while international environ-
mental law is increasingly used by domestic courts: it therefore means that domestic courts
are influenced by other factors.
Another type of variable is more promising to explain the interactions: they relate not to
the legal system itself, but rather to the attitude of the different branches of government to
international law and to environmental protection. First, it will come as no surprise that the
degree of political will is instrumental in defining the interactions between domestic and
international law. When a country seeks to depict itself as an environmental leader on the
international stage, it is more eager to display openly the interactions between the inter-
national dynamics and its domestic system. For instance, countries that host negotiations
leading to the adoption of a treaty tend to ratify the text rather quickly, such as France, the
organizer of the UNFCCC 21st conference of the parties (COP21), which was the first indus-
trialized country to ratify the Paris Agreement. The influence of political leadership can be
more diffuse, but also long-lasting: for instance, it has become evident that Indira Ghandi’s
seminal speech at the 1972 Stockholm conference on the human environment strongly
influenced the environmental activism of Indian courts.141
Secondly, a country’s attitude towards law is particularly influential. For example, the
Japanese conception of law as representing moral imperatives142 meant the Montreal
Protocol was implemented without legal coercion, relying on voluntary compliance by
138 E. Fisher, B. Lange, and E. Scotford, Environmental Law: Text, Cases and Materials (Oxford:
Oxford University Press 2010), 199.
139 Bodansky and Brunnée, ‘Introduction’, at 11.
140 Bruch, ‘Is International Environmental Law Really Law?’, at 428.
141 Judge J. G. Vaghela, ‘Judiciary of India and Implementation of International Environmental Law:
Some Remarks’ in B. Patel (ed.), India and International Law, vol. 2 (Leiden: Brill, 2008), 453–68, at 454.
142 C. Kim and C. Lawson, ‘The Law of the Subtle Mind: The Traditional Japanese Conception of Law’
(1979) 28(3) International and Comparative Law Quarterly 491.
industries.143 This comment also logically extends to the country’s more specific relation
to international law. The commitment of the German Basic Law to public international
law144 played a major role in extending the principle of territoriality under German envir-
onmental law145 and in interpreting domestic law in light of non-transposed international
treaties.146 Conversely, the convoluted attitude of the United States to international law
does not facilitate the interactions between the two levels of governance, and can, in part,
explain the failure of the United States to ratify significant international environmental
treaties (such as UNCLOS or the Kyoto Protocol) and the reluctance of its courts to rely on
international law.147
Thirdly, the attitude of the judiciary towards international law and to environmental deg-
radation plays a strong role in determining the domestic impact of international environ-
mental law.148 Overall, courts prefer making their decision on the basis of domestic law,
since it is the law they are most accustomed to and which they seek to protect.149 As a result,
it is common that domestic courts refuse to give international law any effect, or completely
neglect referencing relevant international instruments. However, a number of domestic
courts have been more proactive in relying on international law, in particular to interpret
national legislation in light of international norms.
In addition, economic factors play a significant role in determining how the two legal
systems interact. A divide based on the level of development is noticeable. For countries
that are environmental leaders with ambitious environmental legislation, the role that inter-
national law might play domestically is less influential.150 In developing countries, international
treaties might be ratified but have limited impacts because countries lack the financial and
technical capabilities to implement them. In this context, the role that a few civil servants
can play in determining the ‘fate’ of an international treaty cannot be over-estimated: in
overburdened and understaffed administrative departments, whether the question of the
implementation of a treaty will be added to the executive and legislative agendas will often
depend on the dedication of one civil servant.151 In both cases, international law runs the
risk of playing a rather limited role.
143 J. Feinerman and K. Fujikura, ‘Japan: Consensus-Based Compliance’ in Brown Weiss and Jacobson,
Engaging Countries, 253, at 288.
144 Germany, Federal Constitutional Court of Germany, BVerG, Case 2 BvR 2365/09 (4 May 2011)
(2011) 218 Entscheidungen des Bundesverfassungsgerichts 326 (on the Basic Law being ‘völkerrechtsfre-
undlich’, i.e. ‘international law friendly’).
145 Emsland.
146 OVG Sachsen (a treaty only has domestic force if transformed into national law by an act of parlia-
ment, and yet, the court interpreted Saxon law in light of the World Heritage Convention that is not
incorporated in German Law).
147 J. Brunnée, ‘The United States and International Environmental Law: Living with an Elephant’
(2004) 15(4) European Journal of International Law 617, at 641.
148 Bodansky and Brunnée, ‘Introduction’, at 13; A. Nollkaemper, National Courts and the International
Rule of Law (Oxford: Oxford University Press, 2011), 193.
149 Benvenisti and Downs, National Courts, Domestic Democracy’, at 61.
150 Cullet, ‘International Environmental Law in Domestic Courts: Switzerland’, at 195, 208.
151 See, for instance, the case of the implementation of CITES in Cameroon: P. Blaikie and J. Mope
Simo, ‘Cameroon’s Environmental Accords: Signed, Sealed, but Undelivered’ in Brown Weiss and
Jacobson, Engaging Countries, 437, at 451–2.
On a related point, judicial activism can be strong when domestic courts are faced
with impending environmental disasters.152 Judges in developing countries are particu-
larly active in this context. They recognize that environmental protection is a global
issue, and that their country should play its part. As a result, domestic courts in develop-
ing countries rely more heavily on non-legally binding instruments, putting questions of
consent aside, and are more inclined to take controversial positions regarding the status
of environmental principles in c ustomary international law.153
51.6 Conclusion
The interactions between environmental legal systems and public international law are var-
ied and complex. It is evident that the dichotomy upon which the relationship between the
international and the national has been theorized fails to acknowledge the complexities of
the exchanges between the two levels. While this is true of any branch of law, research in the
field of environmental law on this question is not as developed as in other fields: for instance,
in human rights law, the generally proactive use of international law by domestic courts has
encouraged the emergence of a rich scholarship.
Yet, two important trends call for further clarity on this question in relation to environ-
mental matters. First, the field of environmental law is moving from an initial phase focused
on norm-creation to a new phase concerned with the implementation of existing legal
frameworks: issues about how best to integrate international norms into domestic law are
thus necessarily brought to the fore. Second, recent nationalist reactions of isolation might
disturb the interactions between domestic and international environmental regimes and
the extent to which these will be resilient to political changes remains to be seen. In this
context, as well as in light of our continued failure to curb environmental degradation, a
clearer understanding of the different types of interactions between environmental law and
public international law will be crucial.

Anderson, M. and P. Galizzi (eds.), International Environmental Law in National Courts (London:
British Institute of International and Comparative Law, 2002).
Benvenisti, E. and G. Downs, ‘National Courts, Domestic Democracy, and the Evolution of
International Law’ (2009) 20(1) European Journal of International Law 59.
Brown Weiss, E. and H. K. Jacobson (eds.), Engaging Countries: Strengthening Compliance with
International Environmental Accords (Cambridge M.A.: MIT Press, 2000).
Bruch, C., ‘Is International Environmental Law Really Law?: An Analysis of Application in Domestic
Courts’ (2006) 23 Pace Environmental Law Review 423.
152 E. Benvenisti, ‘Reclaiming Democracy: The Strategic Uses of Foreign and International Law by
National Courts’ (2008) 102(2) American Journal of International Law 241, at 261.
153 Vellore. See also Indonesia, Supreme Court, Dedi, et al. v Perhutani, et al., 1794 K/Pdt/2004 (2007)
(recognizing environmental principles as jus cogens).
Buergenthal, T., ‘Self-executing and Non-self-executing Treaties in National and International Law’ in
Collected Courses of the Hague Academy of International Law (vol. 235, Leiden, Boston: Brill, Nijhoff,
1992), 303.
Iwasawa, Y., ‘Domestic Application of International Law’ in Collected Courses of the Hague Academy
of International Law (vol. 378, Leiden, Boston: Brill, Nijhoff, 2016), 1.
Kunz, M., ‘Principle 11: Environmental Legislation’ in J. E. Viñuales (ed.), The Rio Declaration on
Environment and Development: A Commentary (Oxford: Oxford University Press, 2015), 311.
Morrison, F., ‘The Relationship between International, Regional and National Environmental Law’ in
F. Morrison and R. Wolfrum (eds.), International, Regional and National Environmental Law (The
Hague: Kluwer, 2000), 113.
Nijman, J. and A. Nollkaemper (eds.), New Perspectives on the Divide Between National and
International Law (Oxford: Oxford University Press, 2007).
A. Nollkaemper, National Courts and the International Rule of Law (Oxford: Oxford University Press,
2011).
Redgwell, C., ‘National Implementation’ in D. Bodansky, J. Brunnée, and E. Hey (eds.), The Oxford
Handbook of International Environmental Law (Oxford: Oxford University Press, 2007), 922.
Roberts, A., P. B. Stephan, P.-H. Verdier, and M. Versteeg, ‘Comparative International Law: Framing
the Field’ (2015) 109(3) American Journal of International Law 467.
Robinson, N., ‘Comparative Environmental Law Perspectives on Legal Regimes for Sustainable
Development’ (1998) 3 Widener Law Symposium Journal 247.
Sand, P., ‘The Evolution of Transnational Environmental Law: Four Cases in Historical Perspective’
(2012) 1(1) Transnational Environmental Law 183.
Shelton, D. (ed.), International Law and Domestic Legal Systems: Incorporation, Transformation, and
Persuasion (Oxford: Oxford University Press, 2011).
Verdier, P.-H. and M. Versteeg, ‘International Law in National Legal Systems: An Empirical
Investigation’ (2015) 109 American Journal of International Law 514.
Index
Note: Tables and figures are indicated by an italic ‘t’ and ‘f ’ following the page number.
Aarhus Convention on Access to Information, Public Declaration on the application of Principle 10 of

Participation in Decision-making and Access the Rio Declaration on Environment and
to Justice in Environmental Matters 1998 Development in Latin America and the
891–2, 981–3, 985–8, 1049, 1063, 1087 Caribbean 984–5
Compliance Committee 987, 1063 Escazú Convention on Access to Information,
foreign state standing under 1178 Public Participation and Justice in
implementation 1168 Environmental Matters in Latin America and
under EU law 155–6, 166, 802–3, 983 the Caribbean (draft) (2018) 985–8, 1063
in Germany 192, 199, 208–9 Rio Declaration 1992, Principle 10 978–85, 986,
in the UK 355, 368, 369–70 1063; see also Rio Declaration on Environment
Kiev Protocol to Pollutant Release and Transfer and Development 1992
Registers 2003 990–1 soft law instruments 980–1
NGO rights under 982–3; see also in the UK 355, 368–70, 993–4, 1087
non-governmental organizations (NGOs) wider applications of principle 1087
procedural reforms called for 734–5 see also human rights; principles of
see also access to environmental information and environmental law
justice; international environmental law acid rain 399
Aborigines, Australian 70, 79; see also Australia; Acid Rain Program, US 414–15
indigenous peoples’ rights and interests see also air pollution, transboundary effects
access to environmental information and Ackerman, Bruce 936
justice 1062–4 adjudication, environmental, see alternative dispute
in Brazil 1078 resolution; litigation
in the Czech Republic 1078 administrative agencies, environmental, see
EIAs, public participation duties 890–2; see also environmental protection agencies
environmental impact assessments (EIAs) Agenda 21 444, 608, 688–9, 737, 992; see also
environmental information duties, see sustainable development
environmental information duties agriculture:
environmental justice, see environmental justice agricultural chemicals, see chemicals regulation,
under EU law, see European Union, access to agricultural chemicals
environmental information and justice Codex Alimentarius, see Codex Alimentarius
in Finland 1078 European Food Safety Authority 756–7
in Germany 192, 199, 208–9 farmers’ rights 529; see also human rights
indigenous peoples 457–8, 892, 987; see also farmland use control 440, 455–6; see also land
indigenous peoples’ rights and interests degradation; land use control
information technology, impact on the ‘public food security 443, 448; see also
domain’ 993–4 human rights
in Mexico 288–90 GMOs regulation, see genetically modified
NGO rights 982–3; see also non-governmental organisms (GMOs) regulation
organizations (NGOs); public interest organic food
litigation, NGO standing in International Federation of Organic Agriculture
in South Africa 319–20, 324–5, 1063–4 Movements 782
treaties and instruments labelling of 782, 1001, 1006, 1014, 1017, 1019;
Aarhus Convention (1998), see Aarhus see also eco-labelling
Convention on Access to Information, Public UN Food and Agriculture Organization 454,
Participation in Decision-making and Access 490–1, 511, 786
to Justice in Environmental Matters 1998 air industry, see aviation industry
1186 index
air pollution 416–17 Amazon Rainforest protection 104–6; see also Brazil,

‘air basin’ management approach 873 rainforest protection
air quality control ambient air pollution, see air pollution
in Austria 548 animals:
in Bangladesh 732 animal testing for chemicals regulation 582–3, 595,
in China 136, 411–13 596; see also chemicals regulation
under EU law 162–3, 402–6 hunting regulation, see hunting regulation
EU, US and Chinese approaches compared juridical rights of nature/non-humans 436–7, 714–15,
413–16 1059–62, 1069; see also public interest litigation
in France 178 property rights over; see also property rights
in Germany 197–9, 206–7, 868–9 excluded in France 177
in India 218, 228–9, 732 wild species 474–5, 707–8
in Indonesia 242–3 slaughterhouse regulation, India 229
in Japan 262–3 species protection, see habitats and species
in Mexico 283 conservation
in Nepal 732 Antarctica 839
in Singapore 300–4 Protocol on Environmental Protection to the
in South Korea 340–1 Antarctic Treaty 1991 880, 887
in the UK 359–60, 766, 868–9, 874 see also protected areas
in the US, see United States, Clean Air Act 1970 anti-instrumentalism, see ‘mapping’ environmental
chemical hazards regulation, see chemicals law, cultural insensitivity critique
regulation Aquaculture Stewardship Council certification
China, air pollution levels in 129, 398 scheme 736; see also marine biodiversity and
definitions 398, 399 fish stocks; non-governmental organizations
functionalism applied to 13; see also methodologies (NGOs)
of comparative law aquatic ecosystems protection, see water resources
greenhouse gas emissions, see climate governance, rivers and lakes
change policies arbitration, see alternative dispute resolution
odour pollution, see odour pollution control Argentina:
public health impact of 416 climate change policies 536
transboundary effects contaminated sites remediation 638
ASEAN Agreement on Transboundary Haze genetically modified organisms (GMOs)
Pollution 2002 303, 400 regulation 514, 523
definition 399 strict liability 1030
LRTAP Convention, see LRTAP Convention Arup, Christopher 946
(Geneva Convention on Long-Range ASEAN (Association of South East Asian Nations):
Transboundary Air Pollution 1979) Agreement on Transboundary Haze Pollution
no-harm principle 401 2002 303, 400; see also air pollution,
Singapore, pollution from forest burning in transboundary effects
Indonesia 303–4 Human Rights Declaration 2012 1054; see also
Trail Smelter arbitration case (United States human rights
v Canada) (1941) 399, 400–1 as a transnational network 778; see also
vehicle-source pollution, see vehicles, control of transnational networks
pollution from see also pollution control see also international organizations
Alberta, liquid fuel use 560; see also Canada, climate Atlantic Rainforest protection 96; see also Brazil,
change policies rainforest protection
alien species control 480–2; see also genetically atmospheric pollution, see air pollution
modified organisms (GMOs) regulation; audits, environmental, see environmental information
habitats and species conservation duties, audits
Alien Tort Statute (US), see United States, Alien Tort Australia 80
Statute case law
alternative dispute resolution: Commonwealth v Tasmania (Tasmanian Dam
in Japan 263, 274–5 case) (High Court) 62–3
in South Korea 349 Murphyores Inc Pty Ltd v Commonwealth (High
Trail Smelter arbitration case (United States Court) 61–2
v Canada) (1941) 399, 400–1; see also Warringah Shire Council v Sedevcic (NSW Court
air pollution, transboundary effects, litigation of Appeal) 79
index 1187
climate change policies 71–2, 544, 566 public interest litigation 79, 738
Climate Change + Me education project, New in South Australia, merits review 731
South Wales 964, 965, 965f specialist environmental courts 78, 802, 805
emissions trading 74–5; see also emissions minerals extraction, authorization 63–4
trading noise pollution control 916–17
energy transition, see Australia, energy policies pollution control
flood mitigation, Queensland 739–40 in Queensland 67–8
judicial responses 72–3 in Victoria 66–7
in New South Wales, see New South Wales, principles of environmental law 659
climate change policies intergenerational equity 72
offshore greenhouse gas storage 74–5; see also as legal catalysts, New South Wales 675–6
carbon capture and sequestration/utilization precautionary principle 664–5, 1176
statutory responses 73–5 public trust doctrine 707
in Victoria, see Victoria, climate sustainable development, see Australia,
change policies sustainable development
constitutional structure of environmental self-regulation
governance 60, 150 in Australian Capital Territory 745–6
distribution of powers between Commonwealth in New South Wales 744
and sub-national governments 61–5 soil conservation 456
contaminated sites remediation 633, 637 sustainable development 70, 72–3
energy policies as climate change response, see Australia, climate
energy efficiency 559 change policies
fossil fuels use 566 influence of Rio Declaration 1997 657; see also
renewable energy 72–3, 74 Rio Declaration on Environment and
environmental education 960, 962t Development 1992
Climate Change + Me project, New South land use control 70–1
Wales 964, 965, 965f in New South Wales 664–5
education for sustainable development, national polycentric decision-making for 75
action plan 963–4 waste management 621–2
environmental harm concept 67–8 in New South Wales, see New South Wales, waste
environmental rules, types 65–6 management
genetically modified organisms (GMOs) in South Australia 611, 614, 615, 617, 622
regulation 514, 523 water resources governance 64–5, 435
habitats and species conservation 709 Murray-Darling Basin Plan 65, 430, 435
in New South Wales 68–9, 486, 711, 744 see also Australian Capital Territory; New South
in Queensland 711 Wales; Queensland; South Australia;
heritage conservation, Northern Territory 69–70 Tasmania; Victoria
implementation and enforcement framework Australian Capital Territory:
criminal enforcement 78 environmental audits 76
decision-making rules enforcement 79 self-regulation 745–6
environmental audits 76, 740 see also Australia
environmental impact assessments 76, 883, 886, Austria, air pollution control 548
893–4, 895, 897 authorizations, see permits and licences
environmental protection agencies 76, 722, 726, aviation industry:
727–8 emissions reductions 574; see also climate change
liability system 77–8, 1032 policies
litigation, see Australia, litigation EU Emissions Trading Scheme, extension to 162,
NGOs 734, 738 403–4, 573; see also European Union,
Parliamentary select committees 723–4 Emissions Trading Scheme
self-regulation, see Australia, self-regulation energy efficiency initiatives 559
standards 742, 858, 859 international civil liability regime 1028
taxation measures 916–17 noise pollution control; see also noise pollution
indigenous peoples’ rights and interests 70, 79 control
litigation in Australia 916–17
judicial review 79, 675–6, 802 in France 916
in New South Wales, see New South Wales, in Japan 263
litigation see also vehicles
1188 index
balancing approach to environmental and other constitutional rights and duties 89, 94, 1057–8
objectives 41 access to environmental information and
Bangladesh: justice 1078
air pollution control 732 ecological function of property 87–8
constitutional rights and duties 1056 right to an ecologically balanced environment
energy policies 559, 565 87, 102–4, 674, 1078
environmental education 965, 966t, 967–9 constitutional structure of environmental governance
Rose’s story 969 constitutional rights and duties, see Brazil,
Basel Convention on the Control of Transboundary constitutional rights and duties
Movements of Hazardous Wastes and their distribution of powers between federal and
Disposal 1989 608, 619–20, 773 sub-national governments 85–6
implementation 1169 judicial system 101–2
under EU law 167 natural resources, ownership and management
in Japan 265 of 84–5
in Singapore 307 contaminated sites remediation 636, 638
see also hazardous waste control energy policies
Baumol, William 905 Belo Monte hydroelectric project controversy 93
Belgium: energy efficiency 560
climate change policies 544 renewable energy 93, 556
contaminated sites remediation 638 unconventional oil and gas development 86
criminal enforcement of environmental laws 1130 environmental law
litigation 799, 1035 definitions 91
Bell, Justine 739–40, 767 development of 89–90
Bell, Stuart 936 National Environmental Policy Act 1981 90–2
Belo Monte hydroelectric project controversy, principles, see Brazil, principles of
Brazil 93; see also Brazil environmental law
best available technique (BAT) standards, see forestry control 88, 89–90, 551
standards, best available technique (BAT) deforestation regulation 86, 93, 94, 103, 105
standards Forest Code 2012 93–5
Bethlehem, Daniel 1162 legal reserve rules 94, 95–6, 103
big data 994 permanent preservation area rules 94, 96, 103
biodiversity, see conservation protection of specific trees and tree species 96
biodiversity offsetting 711, 741; see also market rainforest protection, see Brazil, rainforest
mechanisms protection
biogas capture 552; see also renewable energy genetically modified organisms (GMOs)
policies; waste management regulation 517–18, 521, 523
Biosafety Protocol (Cartagena Protocol on Biosafety habitats and species conservation 96; see also
to the Convention on Biological Diversity Brazil, rainforest protection
2000) 167, 512, 519, 520, 660–1, 1028; see also heritage conservation 89, 97
Convention on Biological Diversity 1992 implementation and enforcement framework
(CBD) challenges affecting 98, 105, 107
biotechnology, see genetically modified organisms criminal enforcement 96–7, 100, 1130
(GMOs) regulation environmental impact assessments 92–3
Bjällås, Ulf 806 environmental protection agencies 99–100, 728
Bodansky, Dan 929 liability system, see Brazil, liability system
Boer, Ben 658 litigation, see litigation
Bonn Declaration of World Heritage 2015 955, 956; Ministry of Environment 99
see also heritage conservation permits and licences, see Brazil, permits and
Bosselmann, Klaus 666–7 licences
bottom-up functionalism 18–19; see also functionalism prosecutors 100–1
Boute, Anatole 944 standards 99, 107, 638, 871–2
Boyd, David 1052, 1054, 1057, 1059 indigenous peoples’ rights and interests 89, 93,
Braithwaite, John 721 105–6
Brazil 106–7 liability system 91–2
biodiversity of 83 strict liability 91–2, 103, 1030, 1130
climate change policies 97–8, 534, 551 litigation
energy transition, see Brazil, energy policies judicial review 674–5
index 1189
public interest litigation 89, 90, 101, 102–4, 1039 energy transition, see Canada, energy policies
súmula vinculante (binding legal liquid fuel use, Alberta 560
precedents) 102 Regional Greenhouse Gas Initiative 779
permits and licences 86, 97, 99 Western Climate Initiative 779–80
for minerals extraction 84, 86, 89 constitutional structure of environmental
for water pollution control 426 governance 109, 111–12
pollution control 91, 97, 426, 871–2 conflicts between federal and sub-national
principles of environmental law 90–1 laws 112, 909
access to environmental information and constitutional rights and duties 113–14
justice 1078 municipal powers 113
ecological function of property 87–8 contaminated sites remediation 638
intergenerational equity 88 ecological footprint analysis 117
as legal catalysts 674–5 energy policies
precautionary principle 674–5 energy efficiency policies 115, 560, 576–7
right to an ecologically balanced environment 87, renewable energy feed-in tariff
102–4, 674, 1078 programmes 117–18
rainforest protection environmental impact assessments 115–16, 884, 888,
Amazon Rainforest 104–6 889, 893, 895, 897
Atlantic Rainforest 96 indigenous peoples, participation rights
Rainforest Alliance 783, 1005 116, 892
waste management judicial review of 898
hazardous waste 86, 98 environmental technology verification 117
solid waste 98, 622 genetically modified organisms (GMOs)
water resources governance 84–5, 97 regulation 514, 523
water pollution 426, 871–2 implementation and enforcement framework 114
Brexit 372–3, 776, 853; see also United Kingdom challenges affecting 112, 115–16, 126
British Columbia: criminal enforcement 124–5, 1130
carbon tax 117, 540–1, 547–8, 919–20 economic instruments 117–18
electrification of vehicles 576–7 environmental impact assessments, see Canada,
see also Canada environmental impact assessments
Brudner, Alan 1131 environmental planning 818, 822, 823, 827
Brundtland Report: Our common future (United independent advisory bodies and watchdogs 117
Nations, 1987) 955, 956–7 information-based regulation 115–17
Brunnée, Jutte 929 institutions 123–4
buildings, energy efficiency policies for 556–8; see also litigation, see Canada, litigation
energy efficiency policies standards 114–15, 638, 859, 861, 862
Burke-White, William 1163 taxation measures, see Canada, taxation measures
indigenous peoples’ rights and interests 109–10,
California: 122, 126–7
chemicals regulation 588, 591; see also chemicals environmental impact assessments, participation
regulation in the US rights 116, 892
climate change policies 332, 379, 409, 540, environmental jurisdiction 110–11
546, 577 incorporated into precautionary principle 121
emissions trading scheme 415, 577, 934, 935 industrial pollution, pollutant release and transfer
environmental risks labelling 1000, 1018 registries 116–17
water resources governance 431 litigation
see also United States citation of Quebecer authorities 118
Callon, Michael 944–5 class actions 119, 122
Canada 126–7 environmental boards and tribunals 123
case law judicial review 125
Trail Smelter arbitration case (United States private prosecutions 125–6
v Canada) (1941) 399, 400–1; see also public interest litigation 119, 125, 126
air pollution, transboundary effects tort claims 118–19
chemicals regulation 586, 591, 592, 593, 600, 605 marine pollution control 1177–8
climate change policies 537 principles of environmental law
carbon taxes 117, 540–1, 547–8, 919–20, 921–2 environmental justice 122
emissions trading 118 polluter-pays 120
1190 index
Canada (cont.) market failures justifying 584, 589

precautionary principle 120–1 Minamata Convention on Mercury 2013 777
sustainable development 121–2, 823, 827 polymers and micro-plastics 585
soil conservation 456 prescriptive tools 589, 591–3; see also command and
taxation measures 909 control regulation
carbon taxes 117, 540–1, 547–8, 919–20, 921–2 prioritization schemes 586
waste management 610, 622 products incorporating or combined with
water resources governance 419 chemicals 585
see also British Columbia; Ontario; Quebec risk assessment 587–8
Cane, Peter 731 risk management 589
cap-and-trade mechanisms: corporate risk management programmes 580,
emissions trading, see emissions trading 584, 605, 745, 989–90; see also corporate
for water pollution control 427; see also water environmental responsibilities
pollution control information tools 589–91
carbon capture and sequestration/utilization in South Korea 344–5
568, 576 Stockholm Convention on Persistent Organic
offshore, in Australia 74 Pollutants 2001 267, 592
in the UK 568 taxation measures 916; see also taxation measures
in the US 568 in the US
in Victoria 74 see chemicals regulation in the US see also
see also climate change policies contaminated sites; hazardous waste control
carbon taxes, see taxation measures, carbon taxes chemicals regulation in the US:
Carson, Rachel 579, 751, 952 in California 588, 591, 606
cars, pollution from, see vehicles, control of toxic release inventory 989, 1006
pollution from Toxic Substances Control Act 1976 (TSCA)
Cartagena Protocol on Biosafety to the Convention on regime 582, 598–9
Biological Diversity 2000 167, 512, 519, 520, chemicals inventory 600
660–1, 1028; see also Convention on Biological compared with EU REACH regime 593, 599,
Diversity 1992 (CBD) 602, 603, 604, 605; see also European Union,
cartographical approach to comparative chemicals regulation (REACH regime)
environmental law, see ‘mapping’ informational requirements 590, 591, 604
environmental law liability system 593–4
Center for International Forestry Research 442; new chemicals and significant new uses
see also deforestation; forestry control authorizations 603–4
chemicals regulation 579–80 prioritization, evaluation and management of
agricultural chemicals; see also agriculture active chemicals 586, 600–3
EU regulation of 780 risk assessment 588
farm worker exposure to 1017–18 taxation measures 914, 916
M.C. Mehta v Union of India (Supreme Court) see also chemicals regulation; United States
(Shriram Fertilizer case) 223–4, 732 Chile, energy policies 428, 559, 563, 566
water pollution by, see water pollution control China:
in Canada 586, 591, 592, 593, 600, 605 air pollution
concepts effect on energy policies 567
chemical hazards and risks 581–2 levels 129, 398
chemicals regulation 580–1 regime compared with EU and US
data acquisition for 582–3, 595–6 approaches 413–16
animal testing 582–3, 595, 596 regulation 136, 411–13
environmental harm incidents involving circular economy policies 132, 136, 624
chemicals 579 climate change policies 534
EU and US regimes compared 593, 599, 602, 603, emissions trading, see China, emissions trading
604, 605 schemes (proposed)
under EU law, see European Union, chemicals energy transition, see China, energy policies
regulation (REACH regime) greenhouse gases treated as air pollutants 412
identification of chemicals 584–6 constitutional structure of environmental
in India, see India, chemicals regulation governance 130, 909
in Japan 266–8, 592 constitutional rights and duties 130–1
liability systems 593–4; see also liability systems law enforcement inspection 132
index 1191
National People’s Congress, legislative powers liability system 138

131–2, 410 pollution share liability 1035
People’s Congresses, regulatory oversight strict liability 1030, 1031
powers 132–3 litigation
political system 130–1 judicial system 139, 140, 140f
emissions trading schemes (proposed) judicial systems in Hong Kong, Macao and
compared with the EU Emissions Trading Taiwan 139
Scheme 937–9, 945–7; see also European public interest litigation 140–1, 144, 415
Union, Emissions Trading Scheme marine pollution control 1168–9
greenhouse gases covered 938–9 water resources governance 430
objectives 937 groundwater pollution levels 129
price management 942–5 water pollution control 423, 426
energy policies Chowdhury, M. A. Taiyeb 968
air pollution controls, effect of 567 circular economy policies 623–4
energy efficiency 560–1 in China 132, 136, 624
renewable energy 552, 561, 563 eco-labelling, life cycle analysis and costing
environmental impact assessments for 1009–11; see also eco-labelling
judicial review of 897 under EU law 159, 623–4
procedures 886–7, 888, 893, 895, 898 in France 179
public participation 891 in Japan 265
strategic environmental assessments 885 see also recycling policies
environmental law CITES, see Convention on International Trade in
categories of laws 133, 133f, 134 Endangered Species of Wild Fauna and Flora
Environmental Protection Law 2014 134–5, 138, 1973 (CITES)
144, 146, 415 Cities Biodiversity Index 308; see also Convention on
environment-related laws 135–6 Biological Diversity 1992 (CBD)
genetically modified organisms (GMOs) citizen suits, see public interest litigation
regulation 518–19, 521 civil society actors, see non-governmental
implementation and enforcement framework 136 organizations (NGOs)
administrative organizational structure 137–8 class actions:
cadre evaluation using environmental in Canada 119, 122
targets 138–9 in France 181–2, 187
challenges affecting 413 in Japan 271
corporate reporting duties 990 in Mexico 292
eco-labelling 1001 in the US 1039
‘ecological civilization’ policy 136–7 see also public interest litigation; tort claims
environmental impact assessments, see China, Clean Air Act 1970 (US), see United States, Clean Air
environmental impact assessments Act 1970
environmental planning 820, 821, 822, 823–4, Clean Water Act 1972 (US), see United States, Clean
827–8, 830–1, 832 Water Act 1972
environmental protection agencies 134, 137–8, climate change policies:
410–11, 414, 727 in Argentina 536
IPPEP Model, see China, IPPEP (Interactions of in Australia, see Australia, climate change policies
Parties in Process of Environmental for the aviation industry, see aviation industry,
Protection) Model emissions reductions
liability system, see China, liability system in Belgium 544
litigation, see China, litigation in Brazil 97–8, 534, 551
local government powers and duties 412 in California, see California, climate change policies
non-governmental organizations (NGOs) 898 in Canada, see Canada, climate change policies
standards 519 carbon capture and sequestration/utilization, see
taxation measures 909 carbon capture and sequestration/utilization
IPPEP (Interactions of Parties in Process of carbon taxes, see taxation measures, carbon taxes
Environmental Protection) Model 141, causes of climate change 442, 447
142, 142f in China, see China, climate change policies
major parties and players 143–5 corporate responsibilities, see corporate
relationship between players and rules 146–7 environmental responsibilities, climate
rules of conduct 145–6 change
1192 index
climate change policies (cont.) in Singapore 309–10

deforestation regulation (REDD and REDD+) 241, in South Africa 332
551–2, 572; see also deforestation in South Korea, see South Korea, climate change
for developing countries; see also developing policies
countries in Spain 544
Clean Development Mechanism 571–2 subsidies and tax incentives 548–9
exceptionalism argument 573 in Sweden 548
eco-labelling 1001, 1002, 1007; see also eco-labelling tort claims 1109, 1110; see also tort claims
EIAs 889–90; see also environmental impact treaties and instruments
assessments (EIAs) Copenhagen Accord 2009 1175
emissions reduction targets 544–7 Global Covenant of Mayors for Energy and
emissions trading, see emissions trading Climate Change 779, 781, 785
energy transition, see energy policies, energy Kyoto Protocol 1997, see Kyoto Protocol to
transition the Framework Convention on Climate
of the EU 161–2 Change 1997
in Fiji 534 Montreal Protocol on Substances that Deplete
flood mitigation 549, 739–40 the Ozone Layer 1987 553, 571–3, 1168, 1181–2
in France, see France, climate change policies Paris Agreement 2015, see Paris Agreement on
in Germany, see Germany, climate change policies Climate Change 2015
greenhouse gases, specific policies UNFCCC, see Framework Convention on
fluorinated gases 553–4, 572–3 Climate Change 1995 (UNFCCC)
methane 552; see also solid waste management in the UK 360–1, 534–5, 543, 544
human and constitutional rights restrictions in the US, see United States, climate
on 1080; see also constitutionality of change policies
environmental law; human rights in Venezuela 539
in India, see India, climate change policies in Victoria, see Victoria, climate change policies
in Indonesia 240–1, 551 in Vietnam 551–2, 572
information disclosure, climate change impacts 187, wildlife corridors and buffer zones 472–3, 850–1;
549–50; see also environmental information see also habitats and species conservation
duties coalbed methane, see energy, unconventional oil and
in Japan, see Japan, climate change policies gas development
judicial review of 542, 543–4; see also judicial review Coase, Ronald 934, 944
land use, land use change and forestry (LULUCF) Codex Alimentarius:
policies 241, 547, 550–2 Codex Alimentarius Commission 786; see also
in Malaysia 539 transnational networks
in Mexico, see Mexico, climate change policies GMOs regulation; see also genetically modified
in the Netherlands 534, 544 organisms (GMOs) regulation
in New South Wales, see New South Wales, climate GMO labelling 524
change policies Principles for the Risk Analysis of Foods
in New Zealand 534, 544, 548, 560 Derived from Modern Biotechnology
in Pakistan 534, 544, 732–3, 1174 (2009) 514
in Poland 548 see also agriculture; United Nations
regulatory approaches collective environmental rights and interests:
command and control 548 collective redress, see class actions; public interest
comprehensive regulation 533–6 litigation
gestures towards policy only 539 constitutionally protected, see constitutionality of
patchworks of old and new laws 536–8 environmental law
policy but no laws 538–9 of future generations, see intergenerational equity
transnational networks 773, 774, 779–80, 785–6; principle
see also transnational networks of indigenous peoples, see indigenous peoples’
regulatory governance rights and interests
executives versus legislatures 543 as public health matter, see public health and the
by sub-national actors 540–3, 546 environment
renewable energy policies, see renewable energy Collins, Harry 763
policies Colombia:
for the shipping industry 574; see also shipping indigenous peoples’ rights and interests 1167
industry rights of the Atrato River recognized 1061
index 1193
command and control regulation: conservation:

in Austria 548 forests, see forestry control
in Canada, via standards 114–15 habitats and species, see habitats and species
chemicals risk management 589, 591–3; see also conservation
chemicals regulation heritage conservation, see heritage conservation
for climate change control 548; see also climate marine biodiversity and fish stocks, see marine
change policies biodiversity and fish stocks
EIAs, see environmental impact assessments (EIAs) treaties and instruments 462; see also land
environmental planning, see environmental planning degradation, treaties and instruments
market mechanisms contrasted with 933; see also Bonn Declaration of World Heritage 2015 955, 956
market mechanisms CBD, see Convention on Biological Diversity
command and control model of market 1992 (CBD)
mechanisms 930 CITES, see Convention on International Trade in
protection of sites, see protected areas Endangered Species of Wild Fauna and Flora
in South Korea 339 1973 (CITES)
standards, see standards Convention for the Conservation of Southern
in the UK 359 Bluefin Tuna 1993 777
in the US 548 Convention for the Protection of the Natural
see also environmental regulation Resources and Environment of the South
common concern of humankind principle 448–9, 465, Pacific Region 1982 470
474, 475; see also principles of environmental law Convention for the Protection of the World
common heritage of mankind principle 174, 448; Cultural and Natural Heritage 1972 62, 457,
see also Convention on the Law of the Sea 1982 470, 839, 1166
(UNCLOS); principles of environmental law Convention on the Conservation of European
community associations, see non-governmental Wildlife and Natural Habitats 1979 470,
organizations (NGOs) 474–5, 476
companies, environmental duties, see corporate Convention on the Conservation of Migratory
environmental responsibilities Species of Wild Animals 1979 474, 477
comparative environmental law: International Convention for the Control and
comparative international law, see international Management of Ships’ Ballast Water and
environmental law, comparative Sediments 2004 481
international law Minamata Convention on Mercury 2013 777
EU law, forms of influence, see European Union, Protocol on Environmental Protection to the
comparative environmental law, forms of Antarctic Treaty 1991 880, 887
influence Ramsar Convention 1971, see Ramsar Convention
importance of 30–1, 36 on Wetlands of International Importance
legal culture significance, see legal culture especially as Waterfowl Habitat 1971
methodologies, see methodologies of comparative law Revised African Convention on the Conservation
noteworthy studies 5–7, 17–23 of Nature and Natural Resources 2017 450–1
principles of environmental law as legal connectors, World Charter for Nature 1982 168, 1051–2
see principles of environmental law, as legal constitutionality of environmental law 53–4, 1073–5
connectors in Bangladesh 1056
scholarship, reasons for lack of 4–5, 931–3 in Brazil, see Brazil, constitutional rights and duties
transnational networks, challenges posed by 786–9; in Canada 113–14
see also transnational networks in China 130–1
compensation for environmental harm, see liability constitutional environmental norms 1077–80;
systems, compensation see also principles of environmental law
competences, distribution of, see distribution of powers constitutional review, see judicial review
compulsory purchase, see property rights, regulatory constitutional structures, see distribution of powers
takings or expropriation in the Czech Republic 1078
conceptual approach to comparative law 11–12; in Ecuador 1060
see also methodologies of comparative law environmental law’s impact on public and
conferences, see international environmental law, constitutional law 1087–9
conferences environmental regulation restricted by rights
conflict of laws rules applied to multinational 1079–80; see also environmental regulation
companies, see multinational companies, in Finland 1078
extraterritorial liabilities in France 173–4, 1175
1194 index
constitutionality of environmental law (cont.) in Singapore 307

in Germany 42, 192–4, 696–7, 699, 1057–8, 1175, 1182 in South Korea 343
in India 53–4, 213–14, 230, 672, 1056 in Sweden 639
in Indonesia 234 in Switzerland 638
international law norms 1167; see also international in the UK 632, 633, 635, 636, 638, 639, 1127
environmental law in the US (Superfund regime) 384–6, 912
in Ireland 1056 in Venezuela 638
in Italy 1077 in Western Australia 633
in Japan 256–7, 272 remediation policy models 637, 645t, 638–9
legal culture influence 1080–1; see also legal culture remediation standards 634, 637, 645t
in Mexico 279–81, 294 state comparisons tables 640, 641t, 643t, 645t
in the Netherlands 1077 Stockholm Convention on Persistent Organic
in ‘non-constitutional’ states 1081–4 Pollutants 2001 267
in Norway 1078 see also land degradation; pollution control
in Pakistan 1056, 1065 contextualist approach to comparative law 15; see also
in Poland 1077 methodologies of comparative law
in South Africa 315–16, 317–20, 1048–9, 1054, 1057, contract law, see private law and the environment
1063–4 Convention for the Conservation of Southern Bluefin
in South Korea 336–8 Tuna 1993 777
in Spain 1078 Convention for the Protection of the World Cultural
in Sri Lanka 1056 and Natural Heritage 1972 62, 457, 470, 839,
structures of governments, see distribution of 1166; see also heritage conservation
powers Convention on Biological Diversity 1992 (CBD) 168,
in the UK 355–6, 793, 1082 463, 478–9
in the US 53, 376, 793, 1057–8, 1082 biodiversity/biological diversity concept 464–6, 487
in Zimbabwe 1053–4 Cartagena Protocol on Biosafety to the Convention
see also human rights; rule of law on Biological Diversity 2000 167, 512, 519, 520,
consumer law and the environment: 660–1, 1028
eco-labelling, see eco-labelling Cities Biodiversity Index 308
product liability 1032, 1034, 1103 common concern of humankind principle 448,
contaminated sites 626–8, 639–40 465, 474, 475
aims of regulation, differences between states 629–30 ‘ecosystem’ definition 850
chemical hazards regulation, see chemicals on EIAs 880, 892; see also environmental impact
regulation assessments (EIAs)
‘contamination’ definition 630–2, 641, 633–4 invasive species control 481
designing rules, decision areas 50 Nagoya Protocol on Access to Genetic Resources
hazardous waste control, see hazardous waste control and the Fair and Equitable Sharing of Benefits
liability options 634–7, 643t; see also liability systems Arising from their Utilization 2010 465
remediation policies ‘protected area’ definition 456, 467–8
in Argentina 638 sustainable land use provisions 444, 446, 448, 456
in Australia 633, 638 wild species lists 476–7
in Belgium 638 see also habitats and species conservation; land
in Brazil 639–40, 643 degradation
in Canada 643 Convention on International Trade in Endangered
in Denmark 635 Species of Wild Fauna and Flora 1973
in Finland 636 (CITES) 482–4, 1179
in France 187, 638 implementation 1169
in Germany 636 in India 218–19
in India 635, 643 see also endangered species protection
in Israel 631–2 Convention on Persistent Organic Pollutants
in Italy 632, 636, 638 2001 267; see also pollution control
in Japan 266–7, 633 Convention on the Conservation of European Wildlife
in Mexico 288 and Natural Habitats 1979 470, 474–5, 476;
in the Netherlands 632, 633, 638 see also habitats and species conservation
in New South Wales 633 Convention on the Conservation of Migratory Species
in New Zealand 633 of Wild Animals 1979 474, 477; see also
in Poland 633 habitats and species conservation
index 1195
Convention on the Law of the Sea 1982 adjudicative models, see litigation, adjudicative
(UNCLOS) 168, 848, 880, 1168, 1170 models
common heritage of mankind principle 174, 448 in Australia 78, 802, 805
see also marine pollution in Canada 123
Convention to Combat Desertification in Countries in China 140–1
Experiencing Serious Drought and/or in India (National Green Tribunal) 226–30,
Desertification, Particularly in Africa 1994 673–4, 800
(UNCCD) 440, 444, 445, 456, 458 in Indonesia, proposals for 246–7, 799
2018-30 Strategic Framework 453 in New South Wales 802, 805
Global Land Outlook 441, 452, 454, 458 in New Zealand 802, 804–5
Ordos Declaration 453 rationale for 790–1, 795–6, 807–8
see also land degradation in Sweden (Land and Environmental Court
Copenhagen Accord 2009 1175; see also Framework system) 806–7
Convention on Climate Change 1995 in the UK 371
(UNFCCC) in the US (Vermont Environment Court) 802,
corporate environmental responsibilities: 804, 807
chemicals risk management 580, 584, 605, 745, see also litigation
989–90; see also chemicals regulation Covenant on Environment and Development (draft)
climate change; see also climate change policies (IUCN) 449; see also IUCN (International
climate change impact reporting duties 187, 550, Union for Conservation of Nature)
991; see also environmental information duties, criminal enforcement of environmental laws 1119–20,
corporate reporting 1128, 1136–7
emissions reduction targets set by companies 546 in Australia 78
corporate social responsibility 781–2, 992, 1141–3 in Belgium 1130
eco-labelling by companies 998, 1002, 1004; in Brazil 96–7, 100, 1130
see also eco-labelling breach of standards, criminal liability 859;
under EU law 550 see also standards
in France 187–8, 550 in Canada 124–5, 1130
in Germany conflicts between environmental law and criminal
corporate influence on environmental law 1128–9
policies 208 moral uncertainty 1134–5
product responsibility principle 204, 208, 621 under EU law 167–8, 1123, 1125, 1130
human rights obligations 187; see also human rights in France 97, 179, 185–6, 188
industrial pollution, see industrial pollution control in India 222, 223, 1127–8
insurance companies as environmental regulators in Indonesia 245–6
739–40; see also environmental regulation international criminal law liability
market mechanisms to promote, see market ecocide (proposed international crime) 186
mechanisms in France 185
multinational companies, extraterritorial liabilities, interpretation of offences 1134–5
see multinational companies, extraterritorial in Japan 270–1
liabilities in Mexico 293
OECD Guidelines for Multinational Enterprises 781 in New Zealand 1130
packaging and plastic waste, see recycling policies, offences as basis of tort claims 1113, 1114–16, 1114t;
packaging and plastic waste see also private law and the environment;
project finance, environmental conditionality, tort claims
see project finance offence types
reporting duties, see environmental information one-step offences 1123–4, 1134
duties, corporate reporting two-step offences 1124–5
self-regulation, see self-regulation three-step offences 1125
in the UK 372 private prosecutions, Canada 125–6
in the US 391, 550 purposes of 1121–2, 1128
see also liability systems as risk-based regulation 1132–4; see also
Costa Rica: environmental regulation
genetically modified organisms (GMOs) as sanction of last resort 1125–7
regulation 520 in Singapore 306–7, 309
wetlands protection 433, 435 in South Africa 1125
courts and tribunals, specialist environmental: in South Korea 347–8
1196 index
criminal enforcement of environmental laws (cont.) climate change policies; see also climate change
strict liability offences 371–2, 1126–7, 1129–32; policies
see also strict liability for environmental harm Clean Development Mechanism 571–2
as substitute for standards 1127–8; see also exceptionalism argument 573
standards eco-labelling, equity concerns 1019; see also
in Sweden 1130 eco-labelling
in the UK, see United Kingdom, criminal energy transition in 556; see also energy policies,
enforcement of environmental laws energy transition
in the US 97, 391, 1121, 1130 environmental responsibilities 213
see also liability systems farmers’ rights 529; see also human rights
cultural heritage, see heritage conservation international law, reception and applications 1175–6,
culture, legal, see legal culture 1182–2; see also international environmental law
customary international law 655, 658, 662, 1166–7, ‘land-grabbing’ in 441–2; see also land degradation
1171–2; see also international environmental patenting of GMOs, attitude towards 527; see also
law; soft law instruments genetically modified organisms (GMOs)
Cutter-Mackenzie, Amy 964, 965 regulation
Czech Republic: devolution, see distribution of powers, devolved systems
access to environmental information and direct effect of international environmental law 1173–4;
justice 1078 see also international environmental law
tort claims, standing 1100 Directives, EU, see European Union, Directives
distribution of powers 679–80, 701–2, 1084–7
Daly, Erin 1057, 1066 administrative regulation 684, 685f; see also
damages for environmental harm, see liability systems, environmental protection agencies
compensation centralization, rationales
damage to the environment: adaptation and transfer costs reduction 696
concept 67–8 equal living conditions and ubiquitous safety
liability for, see liability systems levels 696–7
deforestation: equal market access 694–5
as cause of climate change 442, 447; see also climate ‘level playing field’ 695–6
change policies transboundary environmental effects and
as cause of land degradation 442–3; see also land goods 692–4
degradation cooperation and ‘functional steering’ 697–8
control of auxiliary and vertical coordination 700–1
in Brazil 86, 93, 94, 103, 105; see also Brazil, minimum regulation and the right to
forestry control ‘gold-plating’ 357, 699
in Indonesia, see Indonesia, forestry control need for effective flanking 698–9
REDD and REDD+ schemes 241, 551–2, 572 decentralization, rationales 690–2
in Vietnam 551–2, 572 devolved systems 46, 681
extent of climate change policies 540–3; see also climate
in Brazil 105 change policies
in Indonesia 233 in France 180–1, 681, 687
see also forestry control in Indonesia 235–6
Deketelaere, Kurt 630 in Japan 256, 258–9
delegated legislation 723; see also environmental in South Africa 321–2, 325–8, 330–1
regulation in South Korea 335–6
Denmark: in the UK, see United Kingdom, devolution of
contaminated sites remediation 635 environmental governance
energy efficiency policies 558 EU environmental governance, see European
Environmental Protection Authority 725 Union, environmental governance role
taxation measures 916 executive competences 684, 685–7
groundwater extraction tax 917 federal and unitary systems distinguished 680–3,
tax incentives to cut packaging 158 701, 728–9
de Sadeleer, Nicolas 660 federal systems 1086
descriptive approach to comparative law 10–11; in Australia, see Australia, constitutional
see also methodologies of comparative law structure of environmental governance
desertification, see land degradation in Brazil, see Brazil, constitutional structure of
developing countries: environmental governance
index 1197
in Canada, see Canada, constitutional structure GMOs 521–4; see also genetically modified

of environmental governance organisms (GMOs) regulation
in Germany, see Germany, constitutional governance types 1003t, 1004
structure of environmental governance first-party and third-party labels 1004–5, 1011–12
in India, see India, constitutional structure of public label governance 1005–8
environmental governance international trade implications 1007–8
in Mexico, see Mexico, constitutional structure of life cycle analysis and costing for 1009–11; see also
environmental governance circular economy policies
in Switzerland 686–7 in the Netherlands 1006
in the US, see United States, constitutional normative concerns
structure of environmental governance equity 998–9, 1016–19
local governments and self-governing bodies 687–8, legitimacy 1011–14
688–9 organic products 782, 1001, 1006, 1014, 1017, 1019
in China 412 in the Philippines 1006
in Germany 541–2, 543, 689 sustainable products and practices
Global Covenant of Mayors for Energy and Aquaculture Stewardship Council certification
Climate Change 779, 781, 785; see also climate scheme 736
change policies Fairtrade scheme 1005, 1017
integrated pollution prevention and forestry control, see forestry control, certification
control 699–700 and labelling schemes
in the Netherlands 366, 700 as a form of ‘weak’ sustainability 1008, 1019–20
Tokyo’s emissions trading programme 541, 547 Global GreenTag 1002
in the UK 366, 700, 729 Marine Stewardship Council certification and
tax and spending powers 687–8, 907–9; see also labelling scheme 782–3, 784–5, 1001, 1005
taxation measures in the US, see United States, eco-labelling
see also constitutionality of environmental see also market mechanisms; standards
law; environmental regulation ecologically sustainable development, see sustainable
Dominican Republic, constitutionality of international development
law norms 1167 Ecuador:
constitutional rights and duties 1060
Earth Summit (1992) 90, 444, 955 Ecuador v Chevron controversy 1143; see also
Agenda 21 444, 608, 688–9, 737, 992; see also United States, Alien Tort Statute
sustainable development education, environmental, see environmental
ecocide (proposed international crime) 186; see also education
criminal enforcement of environmental law Ehlers, Knut 452
eco-labelling 992–3, 996–9, 1021 electrical equipment and appliances, energy efficiency
chemicals 590; see also chemicals regulation policies for 558–9; see also energy efficiency
in China 1001 policies
climate change-related 1001, 1002, 1007 emissions control, see air pollution; climate change
by companies 998, 1002, 1004; see also corporate policies
environmental responsibilities emissions trading 547–8
content types 999, 1000t in Australia 74–5
neutral labels 1001 in Canada 118
positive claims 999, 1000 in China, see China, emissions trading schemes
process claims 1001–2, 1003, 1019 (proposed)
process/product distinction 1001 EU and Chinese schemes compared 937–9, 945–7
warnings 1000, 1016–18 under EU law, see European Union, Emissions
effectiveness of 1008 Trading Scheme
European Commission research on 997–8 in France 1097–8
influence on consumer behaviour 1014–16, 1017 ideal type of scheme 936
labelling methodology 1008–11 in Japan 269
limitations 998 Tokyo 541, 547
energy efficiency 549, 559, 560, 574, 997–8, 1006–7 in Mexico 284
under EU law 997–8, 1000, 1001, 1005, 1007 in New Zealand 560
in France 188 price management 928
in Germany 992, 1006 in China 942–5
Global Ecolabelling Network 993 under the EU Emissions Trading Scheme 939–42
1198 index
emissions trading (cont.) approaches in developed and developing

property rights applied to schemes 1096–8; see also countries compared 556
property rights in Australia, see Australia, energy policies
in South Korea 335, 339, 341–2 in Brazil, see Brazil, energy policies
standards, emissions trading facilitated by 860; in Canada, see Canada, energy policies
see also standards in China, see China, energy policies
taxation measures, relationship with 923–4, 933–5; under EU law, see European Union, energy policies
see also taxation measures in France 554
in the UK 1098 in Germany (Energiewende), see Germany,
in the US, see United States, emissions trading energy policies
schemes in India, see India, energy policies
see also climate change policies; market mechanisms in Japan, see Japan, energy policies
endangered species protection: regulatory approaches 554–5
in Japan 261 in South Africa, see South Africa, energy policies
in Mexico 286 in South Korea, see South Korea, energy policies
poaching, data on 483 in the UK, see United Kingdom, energy policies
role of lists 476–8, 483, 484 in the US, see United States, energy policies
trade in species and animal products, see Convention fossil fuels 565–8, 576
on International Trade in Endangered Species subsidies and tax incentives 549, 568–9; see also
of Wild Fauna and Flora 1973 (CITES) market mechanisms
in the UK 708 in Norway 561, 565, 576
see also habitats and species conservation; hunting nuclear energy, see nuclear energy
regulation renewable energy, see renewable energy; renewable
energy efficiency policies 532, 556 energy policies
in Australia 559 transferability of 576–7; see also transplantations of
in Bangladesh 559 environmental law
in Brazil 560 unconventional oil and gas development
for buildings 556–8 bans 856–7
in Canada 115, 560, 576–7 in Brazil 86
in Chile 559 Centre for Sustainable Shale Development 782, 785
in China 136, 560–1 licensing regimes 856
eco-labelling 549, 559, 560, 574, 997–8, 1006–7; in Spain 856–7
see also eco-labelling standards for 856–7; see also standards
effectiveness of 574–5 enforcement of environmental laws, see environmental
for electrical equipment and appliances 558–9 regulation
under EU law 557–8, 560 environmental audits, see environmental information
in France 554 duties, audits
in Germany 200, 576 environmental courts and tribunals, see courts and
in India 535, 560 tribunals, specialist environmental
in Japan 558, 560 environmental crimes, see criminal enforcement of
in Mexico 560 environmental laws
in the Netherlands 561, 576 environmental damage:
in Norway 561, 576 concept 67–8
in Singapore 300, 309–10, 560 liability for, see liability systems
in South Africa 558 environmental education 970
in South Korea 560 in Australia, see Australia, environmental education
standards 557, 558–9, 574–5 in Bangladesh, see Bangladesh, environmental
tax incentives 912–13, 915–16; see also market education
mechanisms, tax incentives concept 954
in the US 558, 560–1 education for sustainable development 956;
for vehicles, see vehicles, energy efficiency see also sustainable development
policies for Australian national action plan 963–4;
see also climate change policies see also Australia, environmental education
energy policies 555 neoliberal foundation critique 956–8
in Chile 428, 559, 563, 566 SDG 4.7: environmental education 957; see also
energy efficiency, see energy efficiency policies United Nations, Sustainable Development
energy transition; see also climate change policies Goals (SDGs)
index 1199
UN Decade for Education for Sustainable in Decision-making and Access to Justice in

Development 955, 956, 963 Environmental Matters 1998
legal culture influence 50–1; see also legal culture audits
‘mapping’ the approaches 958, 959t, 959–60, 961t; auditors as environmental regulators 740;
see also ‘mapping’ environmental law see also environmental regulation
UNESCO initiatives 952, 953t, 954 in Australian Capital Territory 76
Tbilisi Declaration on Environmental Education in New South Wales 740
(1977) 50–1, 954 on climate change impacts 187, 549–50; see also
environmental governance, distribution of powers, climate change policies
see distribution of powers corporate reporting; see also corporate
environmental harm: environmental responsibilities
concept 67–8 in China 990
liability for, see liability systems on climate change impacts 187, 550, 991
environmental impact assessments (EIAs) 876–8, 899 eco-labelling 998, 1002, 1004; see also
in Australia 76, 883, 886, 893–4, 895, 897 eco-labelling
in Brazil 92–3 under EU law 550
in Canada, see Canada, environmental impact in France 187, 550
assessments G20’s Financial Stability Board’s recommendations
in China, see China, environmental impact 550
assessments in Indonesia 990
climate change impacts 889–90 state-mandated duties 988–91
under EU law, see European Union, environmental in the UK 991
impact assessments in the US 550, 989
in France 172 voluntary disclosure 991–3
in Japan 268–9 eco-labelling, see eco-labelling
judicial review of 896–7; see also judicial review environmental education, see environmental
in New South Wales 76 education
origins and global spread of 878–81, 895–6 under EU law 155–6, 166
Espoo Convention on Environmental Impact freedom of information duties of
Assessment in a Transboundary Context governments 977–8
1991 880, 891–2, 895 governance challenges 975–7
as legal transplants 15, 42–3, 895–6; see also in Mexico 288–9
transplantations of environmental law purposes served by 973–4
UN EIA guidelines 879, 887 in South Africa 320
World Bank EIA policies 879, 885, 886, 897–8 see also access to environmental information
procedures 880–1 and justice
applications 883–5 environmental justice:
decisions 892–4 Aarhus Convention (1998), see Aarhus
follow-up and monitoring 894–5 Convention on Access to Information,
public participation 116, 890–2 Public Participation in Decision-making
scoping 887–90 and Access to Justice in Environmental
screening 885–7 Matters 1998
in Russia 881, 885, 888, 890–1, 893, 896, 898 concept 1064–5, 1068–9
in Singapore 313–14 court rules, role of 733
social, human rights and sustainability impacts under EU law 155–6, 406
included 885 for future generations, see intergenerational equity
in South Africa 889 principle
in South Korea 339 for indigenous peoples, see indigenous peoples’
strategic environmental assessments 156, 884–5 rights and interests
theoretical approaches 881–3 litigation, see litigation
by third party surrogate regulators 741–2; see also in Mexico 289–90
environmental regulation rule of law, see rule of law
in the US, see United States, environmental impact in South Africa 319, 324–5
assessments in the UK, barriers 368–70
environmental information duties: in the US 1068
Aarhus Convention (1998), see Aarhus Convention see also access to environmental information and
on Access to Information, Public Participation justice; human rights
1200 index
environmental law: in India 221–3, 726, 728

alternative terminology 4 liability rules enforcement 1040–1, 1088;
comparative studies of, see comparative see also liability systems
environmental law in Mexico 278, 291
concept 4, 7–8 models
‘environment’ definition 634 concentrated versus devolved systems 728–9
constitutionality of, see constitutionality of integrated versus functional agencies 727–8
environmental law single versus multiple agencies 725–7
principles, see principles of environmental law in New South Wales 726, 727–8
regulation, see environmental regulation in the Philippines 728
as a single overall technology 7–8, 29, 30f; rules designed to be enforced by 46
see also ‘mapping’ environmental law scientific evidence, uses of, see scientific evidence
transnational environmental law concept 1053; for environmental governance
see also transboundary effects of environmental in Singapore 310–11, 725, 729
harm ‘super-agencies,’ list of 725
environmental liability systems, see liability systems in the UK, see United Kingdom, environmental
environmental litigation, see litigation protection agencies
environmental permits and licences, see permits and in the US, see United States, Environmental
licences Protection Agency (federal)
environmental planning: see also distribution of powers; environmental
in Canada 818, 822, 823, 827 regulation; liability systems
in China 820, 821, 822, 823–4, 827–8, 830–1, 832 environmental regulation 746–7
environmental plans command and control regulation, see command
concept 815–16 and control regulation
coverage 824–8 concept 27–8, 533, 720–1
evolution of 816–20, 832 criminal enforcement, see criminal enforcement of
formulation of 822–4 environmental laws
implementation techniques 828–31 delegated legislation 723
legal effects of 831–2 distribution of regulatory powers, see distribution
theory of 820–1 of powers
under EU law 816–17, 826, 831 environmental planning, see environmental
in France 817–18, 819–20, 822, 824–5, 828 planning
in Japan 819, 821, 822, 827, 831–2 fault-based liability, relationship with 1041–2;
in the Netherlands 817, 822, 824, 829 see also liability systems, fault-based liability
protected areas, management plans 842; see also human and constitutional rights restrictions
protected areas 1079–80; see also constitutionality of
in South Korea 822 environmental law; human rights
in Sweden 817, 819, 825, 831 instruments
in the UK 818, 819, 822, 829, 831 EIAs, see environmental impact assessments (EIAs)
in the US 816, 818–19, 823, 826–7, 829–30 liability rules, see liability systems
see also environmental regulation market mechanisms, see market mechanisms
environmental protection agencies: permits and licences, see permits and licences
administrative discretion of 1083–4 standards, see standards
discretionary criminal enforcement 1125–7; legal culture influence, see legal culture, for
see also criminal enforcement of environ- environmental governance
mental laws litigation, see litigation
administrative regulation powers 684, 685f, 1082–3 market failures justifying 584, 589, 926–7
in Australia 77–8, 722, 726, 727–8 regulatory actors
in Brazil 99–100, 728 accreditation assessors and certifiers 740–2
in Canada 123–4 courts and tribunals, see litigation
in China 134, 137–8, 410–11, 727 environmental protection agencies, see
delegated legislative powers 723 environmental protection agencies
in Denmark 725 external environmental auditors 740
duty to explain decision-making 762 fourth/integrity branch of government 733–5
European Environment Agency 150, 163, 402, 751 insurance companies 739–40
in France 181 international organizations, see international
in Germany 196 organizations
index 1201
judicially established regulatory bodies 732–3 Emissions Trading Scheme, see European Union,
legislatures 722–4, 1074–5 Emissions Trading Scheme
NGOs, see non-governmental organizations energy transition, see European Union, energy
(NGOs), as regulatory actors policies
standards organizations 721, 736–7, 742, 772–3, fluorinated gases control 553
784 methane emissions from solid waste 552
third party surrogate regulators, rationale vehicle emissions controls 403–4
for 738–9 Common Fisheries Policy 496, 497–9, 502–3, 506
regulatory capacity, see distribution of powers compared with Japanese and New Zealand
risk-based regulation 1132–4 fisheries policies 505–7, 508
scientific evidence, uses of, see scientific evidence comparative law, forms of influence; see also
for environmental governance comparative environmental law
self-regulation, see self-regulation EU law development, foreign law influence
environmental standards, see standards on 150, 157, 166–9, 198, 199, 621
environmental stewardship duty, see stewardship duty EU law influence in the UK after Brexit 372–3,
environmental taxation, see taxation measures 776, 853
Equator Principles for managing environmental and EU law’s indirect influence on Member
social risk in project finance transactions 783, States 163
880; see also project finance EU principles as legal catalysts 670–2
Espoo Convention on Environmental Impact Directives 43
Assessment in a Transboundary Context Ambient Air Quality and Cleaner Air for Europe
1991 880, 891–2, 895; see also environmental (CAFE) Directive (2008/50/EC) 162, 360, 404,
impact assessments (EIAs) 405, 698, 868
European Environment Agency 150, 163, 402, 751; Energy Efficiency Directive (2012/27/EU) 557–8
see also environmental protection agencies; Energy Performance and Buildings Directive
European Union (2010/31/EU) 557–8
European Union: Environmental Impact Assessment Directive
access to environmental information and (2011/92/EU) 156, 879–80
justice 164, 1087 Environmental Liability Directive (2004/35/
Aarhus Convention 1998 implementation 155–6, EC) 154, 156–7, 205, 848, 1040–1, 1095
166, 802–3, 983; see also Aarhus Convention on Framework Directives 154
Access to Information, Public Participation in Freedom of Access to Environmental
Decision-making and Access to Justice in Information Directive (90/313/EEC) 978
Environmental Matters 1998 Habitats Directive (92/43/EEC), see Habitats
Court of Justice, rules of standing 406, 803 Directive (92/43/EEC)
freedom of information 978 Industrial Emissions Directive (2010/75/EU) 163,
air pollution control 162–3, 402–6, 698, 867 402–3, 863
regime compared with US and Chinese Integrated Pollution Prevention and Control
approaches 413–16 (IPPC) Directive (96/61/EC) 198–9, 207,
case law 167–9, 471 359, 402
Charter of Fundamental Rights of the European Marine Strategy Framework Directive (2008/56/
Union 2000 1055 EC) 505–6, 870–1
chemicals regulation (REACH regime) 159, 582, 594 National Emission Ceilings Directive (NECD)
authorization process 596–8 (2001/81/EC) 404, 405
compared with US TSCA regime 593, 599, 602, Packaging and Plastic Waste Directive (94/62/
603, 604, 605; see also chemicals regulation in EC) 158, 204, 616–17, 621
the US, Toxic Substances Control Act 1976 Plastic Bag Directive (2015/720/EU) 916
(TSCA) regime Strategic Environmental Assessment Directive
evaluation process 596 (2001/42/EC) 884–5
informational requirements 589–90, 591, 595 Waste Framework Directive (2008/98/EC),
prioritization 586 see European Union, waste management
registration requirements 594–6 Water Framework Directive (2000/60/
restriction programme 598 EC) 159–60, 207, 421, 423, 698, 870, 873
risk assessment 587–8 Wild Birds Directive (2009/147/EC) 160–1, 471,
as a transnational network 780; see also 475, 476
transnational networks Emissions Trading Scheme 161, 415, 547, 1085,
climate change policies 161–2, 406, 544, 550, 1085 1096–7
1202 index
European Union wildlife corridors and buffer zones 472–3

allowances as ‘goods,’ Member State diver- wild species 475, 476
gences 1097–8 implementation and enforcement framework 150–1,
aviation industry, extension to 162, 403–4, 573 163–4
compared with proposed Chinese schemes 937–9, Court of Justice’s role 164–6, 406, 415, 670–2,
945–7; see also China, emissions trading 799, 800–3, 805–6
schemes (proposed) criminal enforcement 167–8, 1123, 1125, 1130
distinguished from a tax system 934 eco-labelling 997–8, 1000, 1001, 1005, 1007
as a global model 935 environmental impact assessments, see European
objectives, controversy over 937 Union, environmental impact assessments
price management 939–42 environmental planning 816–17, 826, 831
energy policies European Chemicals Agency 159
energy efficiency 557–8, 560 European Commission’s role and competence
renewable energy 162, 552 164, 401–2, 406, 413, 502, 698, 778–9
environmental governance role; see also distribution European Environment Agency 150, 163, 402, 751
of powers European Food Safety Authority 756–7
competence 1085 liability system, see European Union, liability
‘gold-plating’ right of Member States 699 system
integrated pollution prevention and by Member States 406
control 700 standards, see European Union, standards
rationales for 694, 695, 696 taxation measures 908, 910, 922
environmental impact assessments 879–80, 886, industrial pollution control 163, 198–9, 203, 207,
889, 890, 897, 1087 359, 402–3
strategic environmental assessments 156, 884–5 judicial review, doctrine informed by precautionary
environmental law principle 671–2
comparative law, influence on 150, 157, 166–9; liability system 156–7
see also European Union, comparative law, administrative enforcement 1040–1
forms of influence product liability 1032, 1103
competence 1085 principles of environmental law
development of 151–3, 398, 402, 404–5 access to environmental information and justice,
Environment Action Programme 816–17, see European Union, access to environmental
826, 831 information and justice
principles, see European Union, principles of influence of Rio Declaration 1992 658; see also
environmental law Rio Declaration on Environment and
European Pollutant Release and Transfer Register Development 1992
(E-PRTR) 990 integration principle 154, 172
genetically modified organisms (GMOs) regulation as legal catalysts 670–2
compared with US approach, see United States, polluter-pays 154, 906
genetically modified organisms (GMOs) precautionary principle 154–5, 169, 513, 671
regulation prevention principle 617
disputes with the US over 516–17, 523–4 subsidiarity principle 691, 729
labelling of GMOs 522 private international law applied to multinational
patenting of GMOs 528 companies
risk assessment approach 513, 521 applicable law 1153–8
risk regulation approach 516 jurisdiction, general rule 1148–52
habitats and species conservation 160–1, 167, 168, jurisdiction, special rules 1152–3
434, 462–3, 471–2 soil conservation 449
invasive species control 480 standards 197, 609, 613, 699–700
marine biodiversity and fish stocks 467, 505–6, best available technique (BAT) standards 163,
870–1; see also European Union, Common 199, 202, 359, 403, 446, 618–19
Fisheries Policy good environmental status 870–1
Natura 2000 programme 457, 463 as a transnational network 770, 775, 777–9, 780,
protected areas, management agreements with 785, 787; see also transnational networks
private landowners 711–12 waste management 157–9, 608–9, 609–10, 611,
Sites of Special Scientific Interest 841 612, 616
Special Areas of Conservation 471–2, 840 circular economy policies 159, 623–4
index 1203
deposit of controlled waste offence 1123 fish stocks conservation, see marine biodiversity and
extended producer responsibility principle 621 fish stocks
hazardous waste 616, 619, 620, 621 flood mitigation 549, 739–40; see also climate change
packaging and plastic waste 158, 204, 616–17 policies
recycling policies 204, 613–14 flora and fauna, species protection, see endangered
solid waste 552, 610 species protection; habitats and species
treatment near source/proximity principle 618 conservation
‘waste’ definition 157, 613–14 Florida, climate change policies 540; see also United
waste hierarchy 157–8, 615, 617 States, climate change policies
waste prevention principle 617, 618 fluorinated gases control 553–4, 572–3; see also climate
water pollution control 159–60, 421, 698, 870 change policies
‘good ecological status’ objective 423–4 food, see agriculture
river basin management 873 forestry control:
eutrophication: Białowieża Forest case (European Commission
Gothenburg Protocol on Acidification, v Poland (C-441/17)) 168–9
Eutrophication and Ground-level Ozone in Brazil, see Brazil, forestry control
1999 405; see also LRTAP Convention certification and labelling schemes 782–3; see also
(Geneva Convention on Long-Range eco-labelling
Transboundary Air Pollution 1979) Forest Stewardship Council 737, 782, 784,
water pollution control to prevent 424; 785, 1001
see also water pollution control Rainforest Alliance 783, 1005
Evans, Robert 763 deforestation regulation, see deforestation
evolutionary approach to comparative law 10–11; FLEGT Facility 779
see also methodologies of comparative law Framework Convention on the Protection and
expropriation, see property rights, regulatory takings Sustainable Development of the Carpathians
or expropriation 2003 471
extended producer responsibility principle, waste in India 216, 219
management law 609, 620–3, 625; see also in Indonesia, see Indonesia, forestry control
polluter-pays principle; waste management, in Peru 548–9
principles in protected areas 845; see also protected areas
Statement of Forest Principles 1992 (UN) 443, 444
factual approach to comparative law 13–14; see also subsidies and tax incentives 548–9
methodologies of comparative law in Tasmania 71
fair balance 41 in the US 860
Faure, Michael 1123, 1124, 1133 see also habitats and species conservation; land use
federal systems, see distribution of powers, federal control
systems forum shopping 1140
feed-in tariffs for renewable energy 117–18, 561, 562, fossil fuels use, see energy policies, fossil fuels
578; see also renewable energy policies fracking, see energy, unconventional oil and gas
fees, see taxation measures, levies development
Fiji, climate change policies 534 Framework Convention on Climate Change 1995
finance, see project finance (UNFCCC) 773, 1179–80
Findley, Roger W. 106–7 common concern of humankind principle 448
fines, see criminal enforcement of Copenhagen Accord 2009 1175
environmental laws Kyoto Protocol 1997, see Kyoto Protocol to the
Finland: Framework Convention on Climate Change
access to environmental information and 1997
justice 1078 Paris Agreement 2015, see Paris Agreement on
contaminated sites remediation 636 Climate Change 2015
duty to protect the environment principle 168 on the precautionary principle 660; see also
litigation 799 precautionary principle
national parks 471 sustainable land use provisions 444, 446–8, 456;
water resources governance 419 see also land degradation, remediation
First Nations of Canada, see Canada, indigenous policies
peoples’ rights and interests as a transnational network 774; see also transnational
Fisher, Elizabeth C. 38, 44, 54 networks, climate change policies
1204 index
France 172 noise pollution control 916

air pollution control 178 principles of environmental law 173–5, 181
circular economy policies 179 common heritage of the nation 177
climate change policies 178–9, 550 influence of Rio Declaration 1992 657–8;
emissions trading 1097–8 see also Rio Declaration on Environment and
energy transition 554, 565 Development 1992
financial support to Tétouan Wind Farm Project, non-regression 174–5
Morocco 571–2 participation principle 659
constitutional structure of environmental precautionary principle 175, 182–3
governance prevention principle 173
constitutional rights and duties 173–4, 1175 remediation of environmental harm 183–5
development of 176 water resources governance 430
devolution of powers 180–1, 681, 687 Fukushima nuclear accident, Japan (2001), nuclear
contaminated sites remediation 187, 638 phase-outs following 275–6, 554–5, 566;
energy policies see also nuclear energy
energy transition 554, 565 functionalism 12–13
nuclear energy 569–70 bottom-up functionalism 18–19
unconventional oil and gas development 856–7 framework proposed by Nicholas Robinson 21–3
environmental law top-down functionalism 19–21
development and codification 173, 176 see also methodologies of comparative law
future developments 188 fundamental rights, see human rights
integration of international and EU environmental future generations, environmental rights
law 174–6, 1175 and interests, see intergenerational
principles, see France, principles of environmental equity principle
law
genetically modified organisms (GMOs) Gardner, John 1134–5
regulation 182 Gellers, Joshua C. 1055–6, 1057
habitats and species conservation 177 genetically modified organisms (GMOs)
hazardous waste control 183 regulation 510–11, 529–30
implementation and enforcement framework in Argentina 514, 523
challenges affecting 182–8 in Australia 514, 523
coordination of public and private laws, need in Brazil 517–18, 521, 523
for 180 in Canada 514, 523
corporate liability 187–8 in China 518–19, 521
criminal enforcement 97, 179, 185–6, 188 consequences of diverging regulatory
eco-labelling 188 approaches 514–15, 523–4
environmental impact assessments 172 in Costa Rica 520
environmental planning 817–18, 819–20, 822, under EU law, see European Union, genetically
824–5, 828 modified organisms (GMOs) regulation
environmental protection agencies 181 EU-US disputes over 516–17, 523–4
liability system, see France, liability system in France 182
litigation, see France, litigation in India 528
private law instruments 179 in Japan 523
self-regulation 179 labelling of GMOs 521–4; see also eco-labelling
taxation measures 916 in Mexico 287, 523
industrial pollution control 179, 185 risk assessment
liability system 183–5 legal culture, influence on 521; see also
strict liability 1031, 1099, 1103 legal culture
litigation potential risks of GMOs 511–12
class actions 181–2, 187 precautionary versus permissive approaches
judicial review 181 512–14, 520–1; see also precautionary principle
private international law 1149 Principles for the Risk Analysis of Foods Derived
public interest litigation 184–5 from Modern Biotechnology (2009) (Codex
tort claims 182–3, 188, 1035, 1036, 1100, Alimentarius) 514
1107, 1116 risk regulation, process versus product regulation
marine pollution control (Erika oil spill case 515–16, 520–1
(Cour de cassation)) 175, 183, 188 in South Africa 528–9
index 1205
in the US, see United States, genetically modified access to environmental information and
organisms (GMOs) regulation justice 192, 199, 208–9
see also habitats and species conservation intergenerational equity 168
Geneva Convention on Long-Range Transboundary product responsibility 204, 208, 621
Air Pollution 1979 (LRTAP Convention), see standards 208
LRTAP Convention (Geneva Convention on air quality standards 868–9
Long-Range Transboundary Air Pollution 1979) best available technique (BAT) standards 199
Germany 209–10 emissions control standards 199, 202
air pollution control 197–9, 206–7, 868–9 implementation deficits 861
climate change policies 199–200, 860 sanctions for breach 859, 860
energy transition (Energiewende), see Germany, for unconventional oil and gas development 856–7
energy policies waste management and recycling 203–4, 208
in Heidelberg 541–2, 543 water resources governance 200–1, 207, 689
constitutional structure of environmental status of water bodies 201
governance water pollution control 201–3, 210, 426, 427
constitutional rights and duties 42, 192–4, 696–7, Gillespie, Alexander 616
699, 1057–8, 1175, 1182 Global Compact (UN) 780–1
distribution of powers between federal and Global Covenant of Mayors for Energy and Climate
sub-national governments 194–5, 683, 688, 699 Change 779, 781, 785; see also climate change
executive powers, division between federal and policies
sub-national governments 195–6, 683, 686–7 globalization of environmental governance 168, 654,
contaminated sites remediation 636 764, 772, 1162; see also transnational networks
energy policies 554–5, 565 Global Pact for the Environment (draft) 188,
energy efficiency 200, 576 656–7, 663, 1052–3; see also international
nuclear energy 206, 554–5, 566 environmental law
renewable energy 199–200, 210, 562, 564, 578 Global Sustainable Tourism Council 781; see also
unconventional oil and gas development 856–7 non-governmental organizations (NGOs)
environmental law global warming policies, see climate change policies
influence on EU environmental law 157, 169, 198, GMOs, see genetically modified organisms (GMOs)
199, 621; see also European Union, comparative regulation
environmental law, forms of influence ‘gold-plating’ of environmental laws 357, 699; see also
integration of international and EU environmental distribution of powers
law 194, 196–7, 210 Gough, Annettee 963
principles, see Germany, principles of Grabosky, Peter 738, 739
environmental law Grear, Anna 1050
habitats and species conservation 204–5, 486 Greece:
heritage conservation 1166 duty to protect the environment principle 168
implementation and enforcement framework litigation 799
‘adversarial legalism,’ impact of 191–2 greenhouse gases control, see climate change policies
‘bureaucratic legalism’ and ‘normative Griffin, John 448
concretization’ 191, 206–7, 209–10 groundwater pollution control:
eco-labelling 992, 1006 under EU law 159–60
environmental protection agencies 196 in Germany 200, 201, 202
informal administration 208 groundwater pollution levels in China 129
litigation, see Germany, litigation in Japan 266
local government powers and duties 541–2, in South Korea 342
543, 689 in the US 381
self-regulation 208 see also water pollution control
standards, see Germany, standards group litigation, see class actions
strict liability 1099, 1103–4, 1115–16 Guariso, Giorgio 873
industrial pollution control 197–9, 201–2, 203, Gunningham, Neil 721, 736, 738, 739, 745
206–7
litigation 208–9 habitats and species conservation 456–7, 461, 487
tort claims 1099, 1101, 1102, 1104, 1106–7, 1108, aquatic ecosystems protection, see water resources
1115–16 governance, rivers and lakes
noise pollution 196, 198, 207 in Australia, see Australia, habitats and species
principles of environmental law conservation
1206 index
habitats and species conservation (cont.) ‘wildlife’ definition 464

biodiversity/biological diversity concept 464–6, 487 wild species 473–4
in Brazil 96 criteria for classification 475–6
climate change impact 461, 850–1; see also climate endangered species, see endangered species
change policies protection
conservation banks 486–7; see also market hunting regulation, see hunting regulation
mechanisms invasive species control 480–2; see also
corridors and buffer zones 472–3, 850–1 genetically modified organisms (GMOs)
network approach 473 regulation
development of laws 461–3 legal status 474–5, 707–8
ecosystem approach 434, 498, 835, 842, 850 role of lists 476–8, 483, 484
under EU law, see European Union, habitats and trade in species and animal products,
species conservation see Convention on International Trade in
in Finland 471 Endangered Species of Wild Fauna and Flora
in France 177 1973 (CITES)
in Germany 204–5, 486 see also conservation; Convention on Biological
GMOs regulation, see genetically modified Diversity 1992 (CBD)
organisms (GMOs) regulation Habitats Directive (92/43/EEC) 160–1
in India 218–19, 227 implementation in Germany 205
IUCN, see IUCN (International Union for implementation of the Ramsar Convention
Conservation of Nature) 1971 434; see also Ramsar Convention on
in Japan 260–2 Wetlands of International Importance
limitations and exceptions 479–80 especially as Waterfowl Habitat 1971
market mechanisms 485–7; see also market implementation outside territorial waters 168
mechanisms marine protected areas 467
in Mexico 285–7 precautionary principle 155
in Namibia 844 Special Areas of Conservation designation
in New South Wales 68–9, 486, 711, 744 471–2, 840
in New Zealand 709, 710 wild species protection 475, 476
NGOs 507, 736, 737, 738, 782–3 see also European Union, habitats and species
payment for ecosystem services 846–7; see also conservation
market mechanisms Hage, Jaap 933
pillars and approaches 463, 487 Hao Zhang 946
in Poland 471 Hardin, Garrett 930
‘private’ property rights, conflicts with, see property harm to the environment:
rights, ‘private’ rights versus conservation concept 67–8
protected areas, see protected areas liability for, see liability systems
in Queensland 711 Hayek, Friedrich von 690
rivers and lakes, see water resources governance, hazardous substances regulation, see chemicals
rivers and lakes regulation
in Scotland, see Scotland, habitats and species hazardous waste control:
conservation Basel Convention 1989, see Basel Convention on
in Singapore, see Singapore, habitats and species the Control of Transboundary Movements of
conservation Hazardous Wastes and their Disposal 1989
in South Africa 324, 325 in Brazil 86, 98
in South Korea, see South Korea, habitats and in Canada 610
species conservation chemical hazards, see chemicals regulation
in Spain 471, 472, 473, 486 under EU law 616, 619, 620, 621
treaties and instruments, see conservation, treaties in France 183
and instruments in India 222
in the UK, see United Kingdom, habitats and in Indonesia 238, 239
species conservation in Japan 265
in the US, see United States, habitats and species in Mexico 287
conservation in Singapore 307
wetlands, see wetlands protection in South Korea 344–5
whether de facto expropriation 484–5; see also Stockholm Convention on Persistent Organic
property rights Pollutants 2001 267
index 1207
in the US 383, 609, 616, 619 in Mexico 279–81; see also Mexico, principles of
see also contaminated sites; waste management environmental law
health, see public health and the environment property rights, see property rights
Heidelberg, climate change policies 541–2, 543; rights-based thinking 51–3; see also ‘mapping’
see also Germany, climate change policies environmental law
heritage conservation: right to a healthy environment, see public health
Bonn Declaration of World Heritage 2015 955, 956 and the environment, right to a healthy
in Brazil 89, 97 environment
indigenous people’s rights and interests, see socio-economic rights 1065–7
indigenous peoples’ rights and interests treaties and instruments
in Northern Territory 69–70 Aarhus Convention 1998, see Aarhus
World Heritage Site protection Convention on Access to Information,
Commonwealth v Tasmania (Tasmanian Dam Public Participation in Decision-making
case) (Australian High Court) 62–3 and Access to Justice in Environmental
Convention for the Protection of the World Matters 1998
Cultural and Natural Heritage 1972 62, 457, African Charter on Human and Peoples’ Rights
470, 839, 1166 1981 1054, 1055
in Germany 1166 ASEAN Human Rights Declaration 2012 1054
St Kilda, Scotland 838 Charter of Fundamental Rights of the European
see also conservation Union 2000 1055
historical pollution, see contaminated sites European Convention on Human Rights
Homeyer, Ingmar von 946 1950 1054–5
Hong Kong, judicial system 139; see also China Global Pact for the Environment (draft) 188,
household waste, see solid waste 656–7, 663, 1052–3
human rights 1044–6, 1069–70, 1167 indigenous peoples’ rights, see indigenous
access to environmental information and justice, peoples’ rights and interests, treaties and
see access to environmental information and instruments
justice Stockholm Declaration on the Human
concept 1046–8 Environment 1972 168, 1050–1, 1175, 1176
constitutional rights, see constitutionality of Universal Declaration of Human Rights
environmental law 1948 1047
corporate duties 187; see also corporate World Charter for Nature 1982 168, 1051–2
environmental responsibilities see also principles of environmental law
environmental human rights hunting regulation 479
concept 52–3 indigenous peoples 479; see also indigenous
critiques of 1067–9 peoples’ rights and interests
development, historical milestones 1050–6 in Japan 261
development, reasons for 1049–50 in protected areas 845; see also protected areas
Draft principles on human rights and the see also animals; endangered species protection;
environment (United Nations, 1994) 1052 habitats and species conservation
environmental justice, see environmental justice Hutter, Bridget 720
environmental regulation restricted by rights hydraulic fracturing, see energy, unconventional oil
1079–80; see also environmental regulation and gas development
fair balance approach 41 hydroelectric power, see renewable energy policies,
farmers’ rights 529 hydroelectric power
food security 443, 448
of future generations, see intergenerational equity implementation of environmental laws, see
principle environmental regulation
human rights impact assessments 885; see also India 213
environmental impact assessments (EIA) air pollution control 218, 228–9, 732
of indigenous peoples, see indigenous peoples’ case law 223–30
rights and interests M.C. Mehta v Union of India (Supreme Court)
juridical rights of nature/non-humans 436–7, 714–15, (Shriram Fertilizer case) 223–4, 732
1059–62, 1069; see also public interest litigation Narmada BachaoAndolan v Union of India
‘kettling’ (public order policing policy, UK) 755, 760 (Supreme Court) 225
‘land-grabbing’ in developing countries as human Rural Litigation and Entitlement Kendra v State of
rights issue 441–2; see also land degradation Uttar Pradesh (Supreme Court) 225
1208 index
India (cont.) public interest litigation 223, 230, 1061–2

Salim v State of Uttarakhand & Others (High Supreme Court, judicial environmental
Court of Uttarakhand) 1061–2 specialism 799–800, 807
Subash Kumar v State of Bihar (Supreme marine pollution control 228
Court) 223 noise pollution control 223
Vellore Citizen Welfare Forum v Union of India principles of environmental law 664
(Supreme Court) 224, 225–6, 664, 665, 1171–2 absolute liability 223–4
chemicals regulation 220 derivative rights 1078–9
absolute liability doctrine 223–4 integration principle 216–17
climate change policies 534, 535–6 intergenerational equity 673
energy transition, see India, energy policies as legal catalysts 672–4
fluorinated gases, lack of controls 553–4, 573 polluter-pays 224–5, 1176–7
constitutional structure of environmental precautionary principle 224–5
governance public trust doctrine 225, 431
constitutional rights and duties 53–4, 213–14, right to a healthy environment 53–4
230, 672, 1056 sustainable development 225–6
treaties, implementation powers 214–15 slaughterhouse regulation 229
treaties, non-obstante principle 228 waste management
contaminated sites remediation 635, 641 hazardous waste 222
energy policies solid waste 228
energy efficiency 535, 560 water resources governance 217–18
fossil fuels 565 Indus River dam controversy 432
nuclear energy 570 water pollution control 217–18, 229–30, 426
renewable energy 562 indigenous peoples’ rights and interests:
environmental law access to environmental information and
Environment (Protection) Act 1986 219–20 justice 457–8, 892, 987; see also access to
National Environmental Policy (2006) 216–17 environmental information and justice
policy frameworks 215–16 in Australia 70, 79
principles, see India, principles of in Brazil 89, 93, 105–6
environmental law in Canada 109–11
farmers’ rights 529; see also human rights in Colombia 1167
forestry control 216, 219 hunting and fishing rights 479, 501, 506
genetically modified organisms (GMOs) indigenous property systems 712–15, 717–18;
regulation 528 see also property rights
habitats and species conservation 218–19 land tenure systems 454, 455
sand mining 227 sacred sites 835; see also protected areas
implementation and enforcement framework in Indonesia 242, 251
Central Pollution Control Board 221–2 ‘land-grabbing’ in developing countries as collective
challenges affecting 222–3 rights issue 441–2; see also land degradation
criminal enforcement 222, 223, 1127–8 in Mexico 281, 290
environmental protection agencies 221–3, in New Zealand, see New Zealand, Maori people’s
726, 728 rights and interests
liability system, see India, liability system treaties and instruments
litigation, see India, litigation Indigenous and Tribal Peoples Convention 1989
Ministry of Environment, Forests and Climate (ILO Convention 169) 105–6, 281, 290, 1167
Change 220–1 UN Declaration on the Rights of Indigenous
standards 861 Peoples 2007 111, 457–8, 892
State Pollution Control Boards 222–3 in the US 1069
industrial pollution control 218, 220 see also human rights
liability system Indonesia 232–3, 251–2
absolute liability doctrine 223–4 air pollution control 242–3
strict liability 1031 climate change policies 240–1, 551
litigation constitutional structure of environmental
international law application 1170–1, 1172–3, governance
1176–7 constitutional rights and duties 234
judicial review 672–4 devolution of powers 235–6
National Green Tribunal 226–30, 673–4, 800 treaties, implementation powers 236–7
index 1209
environmental law instrumentalism, see ‘mapping’ environmental law,

categories 236–7 cultural insensitivity critique
principles, see Indonesia, principles of insurance companies as environmental regulatory
environmental law actors 739–40; see also environmental
farmers’ rights 529; see also human rights regulation
forestry control integration principle 654
burning, pollution impact in Singapore 303–4 in Australia 659
burning restrictions 242–3, 249 under EU law 154, 172
deforestation, extent of 233 in India 216–17
indigenous peoples’ rights 242, 251 integrated pollution prevention and control,
logging restrictions 542, 551 see pollution control, integrated pollution
REDD+ schemes 241, 551 prevention and control (IPPC)
fossil fuels use 566, 568 in South Africa 319, 322, 325
hazardous waste control 238, 239 in Wales 358
implementation and enforcement framework see also principles of environmental law; sustainable
corporate reporting duties 990 development
corruption undermining 233, 246 intellectual property rights:
criminal enforcement 245–6 in GMOs 524–9; see also genetically modified
instruments 237–8 organisms (GMOs) regulation; property rights
litigation, see Indonesia, litigation plant breeders’ rights 525
Ministry of Environment and Forestry 244–5 Interactions of Parties in Process of Environmental
standards 237, 239, 241–2 Protection (IPPEP) Model, China, see China,
indigenous peoples’ rights and interests 242, 251 IPPEP (Interactions of Parties in Process of
litigation Environmental Protection) Model
allocated to certified environmental intergenerational equity principle 731
judges 247–8 in Australia 72
enforcement of Constitutional Court in Brazil 88
decisions 250–1 in Germany 168
environmental jurisdiction proposals 246–7, 799 in India 673
judicial reasoning 250 in Japan 257
judicial review 249–51 in Mexico 280
landmark decisions 248–9 in South Africa 325
public interest litigation 249–51 see also principles of environmental law
reasons for ineffectiveness 245–6, 250–1 International Convention for the Control and
marine biodiversity and fish stocks Management of Ships’ Ballast Water and
conservation 243–4 Sediments 2004 481; see also habitats and
odour pollution control 242 species conservation
principles of environmental law International Convention for the Prevention of
in dubio pro natura (in doubt, favour nature) 249 Pollution from Ships 1973 (MARPOL) 175,
polluter-pays 240 1168–9; see also marine pollution control
precautionary principle 248 international environmental law:
right to a healthy environment 234 comparative international law 1161–2, 1183;
industrial pollution control: see also comparative environmental law
air pollution, see air pollution concept 981
in Canada 116–17 domestic-international divide 1162–4
under EU law 163, 198–9, 203, 207, 359, 402–3 drivers of the domestic-international law
in France 179, 185 relationship 1180–3
in Germany 197–9, 201–2, 203, 206–7 conferences
in India 218, 220 Earth Summit (1992), see Earth Summit (1992)
in Japan 254, 262–3, 264 Rio+20 (2012) 979, 983–4
market mechanisms to address, see market Stockholm (1972), see Stockholm Conference on
mechanisms the Human Environment (1972)
noise pollution control, see noise pollution control UNESCO Thessaloniki conference (1997) 955
in Singapore 300, 302–3, 305, 306, 307, 308, 312–14 globalization of environmental governance 168,
in South Korea 345, 347, 349 654, 764, 772, 1162; see also transnational
in the UK 359 networks
in the US 381–2, 383, 408–10 international law effects on domestic law 1169
1210 index
international environmental law (cont.) soft law instruments, see soft law instruments
customary international law 655, 658, 662, as transnational networks 774, 777–8; see also
1166–7, 1171–2 transnational networks
direct effect 1173–4 UNCLOS, see Convention on the Law of the Sea
as interpretative tool 1174–5 1982 (UNCLOS)
invocability by individuals 1178–80 water resources governance 431–2
invocability by state authorities 1177–8 water pollution control 421–2, 424–5
non-technical normative effects 1175–7 International Federation of Organic Agriculture
principles of environmental law, see principles of Movements 782; see also agriculture;
environmental law non-governmental organizations (NGOs)
soft law instruments, see soft law instruments international finance, see project finance
treaties 1170–1 international human rights law, see human rights,
international law status in domestic legal systems treaties and instruments
dualism versus monism 1165–6, 1181 international organizations:
hierarchy of norms 1166–7 ASEAN, see ASEAN (Association of South East
self-executing versus non-self-executing Asian Nations)
law 1167–8 EU, see European Union
transposition techniques 1168–9 IUCN, see IUCN (International Union for
international organizations, see international Conservation of Nature)
organizations NGOs, see non-governmental organizations (NGOs)
land remediation initiatives 444–9; see also land OECD, see OECD (Organization for Economic
degradation, remediation policies Co-operation and Development)
liability systems 1027–8; see also liability systems Southern African Development Community 778
reception and applications as transnational networks, see transnational
cultural factors affecting 1180–3; see also legal networks, international organizations as
culture UN, see United Nations
in developing countries 1175–6, 1182, 1183; World Bank, EIA policies 879, 885, 886, 897–8; see
see also developing countries also environmental impact assessments (EIAs)
in Germany 1182 World Trade Organization, see international trade
in India 214–15, 228, 1170–1, 1172–3, 1176–7 international trade:
in Japan 1181–2 eco-labelling, trade implications 1007–8;
in Nepal 1174, 1177 see also eco-labelling
in the Netherlands 1174, 1175, 1178 EIA of trade agreements 885; see also
in Pakistan 1174 environmental impact assessments (EIAs)
in the US 1172, 1174, 1175, 1176, 1182 in endangered species, see Convention on
transnational boundary effects of environmental International Trade in Endangered Species of
harm, see transboundary effects of Wild Fauna and Flora 1973 (CITES)
environmental harm equal market access rationale for centralized
treaties and instruments environmental governance 694–5; see also
on access to environmental information distribution of powers
and justice, see access to environmental EU-US disputes over GMOs regulation 516–17,
information and justice, treaties and 523–4; see also genetically modified organisms
instruments (GMOs) regulation
on climate change, see climate change, treaties patentability of living organisms, WTO law
and instruments on 526–7, 528, 529; see also genetically
on conservation, see conservation, treaties and modified organisms (GMOs) regulation
instruments standards, trade implications 63, 694, 696; see also
on the human rights-environmental law nexus, standards
see human rights, treaties and instruments taxation measures, trade implications 910–11, 919;
on indigenous peoples’ environmental rights and see also taxation measures
interests, see indigenous peoples’ rights and International Union for Conservation of Nature,
interests, treaties and instruments see IUCN (International Union for
on land degradation, see land degradation, Conservation of Nature)
treaties and instruments invasive species control 480–2; see also genetically
on pollution control, see pollution control, modified organisms (GMOs) regulation;
treaties and instruments habitats and species conservation
index 1211
IPPEP Model, China, see China, IPPEP (Interactions fisheries policies 496–7, 499–500, 503, 507
of Parties in Process of Environmental compared with EU and New Zealand policies
Protection) Model 505–7, 508
Ireland, taxation measures: genetically modified organisms (GMOs)
carbon tax 920–1 regulation 523
constitutional rights and duties 1056 habitats and species conservation 260–2
plastic bag tax 916 endangered species 261
tax incentives for fuel efficient vehicles 915–16 hunting regulation 261
Israel: implementation and enforcement framework
contaminated sites remediation 631–2 administrative compensation scheme 275
standards 863 alternative dispute resolution 263, 274–5
Italy: criminal enforcement 270–1
constitutional rights and duties 1077 environmental impact assessments 268–9
contaminated sites remediation 632, 636, 638 environmental planning 819, 821, 822,
duty to protect the environment principle 168 827, 831–2
tort claims 1100 environmental taxation 258, 270
water pollution control 426 liability system, see Japan, liability system
wetlands protection 435 litigation, see Japan, litigation
IUCN (International Union for Conservation of standards 258, 262, 264, 266
Nature): industrial pollution control 254, 262–3, 264
‘corridor’ definition 472 liability system 271–2
Covenant on Environment and Development state liability 273–4
(draft) 449 strict liability 262, 272
‘protected area’ definition and categories 456, litigation
468–9, 470, 836–8 civil injunctive relief 272–3
‘wildlife’ definition 464 class actions 271
wild species lists 477–8 effectiveness of 271
World Conservation Strategy 954, 956 judicial review 273–4
World Declaration on the Environmental Rule of tort claims 271–3
Law 2016 663 noise pollution control 263–4
see also habitats and species conservation odour pollution control 263
principles of environmental law
Japan: anticipative prevention (mizen ni fusega’eru) 258;
air pollution control 262–3 see also precautionary principle
chemicals regulation 266–8, 592 intergenerational equity 257
climate change policies 269–70, 1181–2 right to a healthy environment 257
carbon tax 270, 921 sustainable development 257
energy transition, see Japan, energy policies waste management 264–5
fluorinated gases control 553 circular economy policies 265, 624
Tokyo’s emissions trading programme 541, 547 extended producer responsibility principle 621
constitutional structure of environmental hazardous waste 265
governance packaging waste 617
constitutional rights and duties 256–7, 272 recycling policies 265
devolution of powers 256, 258–9 waste hierarchy 615
contaminated sites remediation 266–7, 633 water pollution control 266, 426
energy policies Jasanoff, Sheila 750, 752, 761, 864
energy efficiency 558, 560 Jeffords, Chris 1055–6
nuclear phase-out after the Fukushima accident Johannesburg Principles on the Role of Law and
(2001) 275–6, 566 Sustainable Development (2002) 662–3;
renewable energy 270 see also Rio Declaration on Environment
environmental law 259–60 and Development 1992; sustainable
development of 254–6 development
Environmental Basic Law 255, 257–8 Judicial Handbook on Environmental Law (2005) 662,
environmental basic plans 258 663; see also principles of environmental
principles, see Japan, principles of law; Rio Declaration on Environment and
environmental law Development 1992
1212 index
judicial review: deforestation 442–3; see also deforestation

in Australia 79, 675–6, 802 ‘land-grabbing’ in developing countries
in Brazil 674–5 441–2
in Canada 125 as a common concern of humankind 448–9
of climate change policies 542, 543–4; see also contaminated sites, see contaminated sites
climate change policies principles
distinguished from ‘merits review’ 730 common concern of humankind 448–9
of EIAs 896–7; see also environmental impact land degradation neutrality 452–3, 458
assessments (EIAs) sustainable development 446, 451–2, 458;
EU law, doctrine informed by the precautionary see also sustainable development
principle 671–2 remediation policies 443, 458
in France 181 access to land 455
in India 672–4 in Australia 456
in Indonesia 249–51 in Canada 456
intensity of, comparisons 800–2; see also litigation, farmland use control 440, 455–6
adjudicative models global initiatives 444–9, 451–3, 456
international law invocability; see also international land tenure systems 454, 455
environmental law national policies 453
by individuals 1178–80 planning policies 457–9
by state authorities 1177–8 protected areas regimes, see protected areas
in Japan 273–4 regional initiatives 449–51
in Mexico 291 in the US 440, 456
in New South Wales 675–6, 802 treaties and instruments; see also conservation,
principles of environmental law as legal catalysts, treaties and instruments
see principles of environmental law, as legal Agenda 21, land degradation provisions 444
catalysts Convention on Biological Diversity 1992 444,
public interest litigation, see public interest 446, 456; see also Convention on Biological
litigation Diversity 1992 (CBD)
in South Korea 336, 337–8 Covenant on Environment and Development
in the UK 368–70, 762, 800, 1083–4, 1088 (draft) (International Union for Conservation
in the US 388–90, 542, 544, 896 of Nature) 449
see also litigation Protocol for the Implementation of the Alpine
Convention in the Field of Soil Protection
Kagan, Robert A. 191–2 1991 450
Karavias, Markus 784 Revised African Convention on the Conservation
Keohane, Robert 1164 of Nature and Natural Resources 2017
Kiev Protocol to Pollutant Release and Transfer 450–1
Registers 2003 990–1; see also Aarhus SDG 15 446, 451–2, 458; see also United Nations,
Convention on Access to Information, Public Sustainable Development Goals (SDGs)
Participation in Decision-making and Access Statement of Forest Principles 1992 443, 444
to Justice in Environmental Matters 1998 UNCCD, see Convention to Combat
Knapp, Doug 955–6 Desertification in Countries Experiencing
Knox, John 1052 Serious Drought and/or Desertification,
Korea, see South Korea Particularly in Africa 1994 (UNCCD)
Kötz, Hein 932 UNFCCC 444, 446–8, 456; see also Framework
Kyoto Protocol to the Framework Convention on Convention on Climate Change 1995
Climate Change 1997 447, 545 (UNFCCC)
Clean Development Mechanism 571–2 World Soil Charter 2014 451
see also Framework Convention on Climate Change see also conservation; contaminated sites
1995 (UNFCCC) landfill gas capture 552; see also renewable energy
policies; waste management
labelling, environmental, see eco-labelling landfill tax, UK 860, 916
lakes, see water resources governance, rivers land tenure systems 454, 455; see also indigenous
and lakes peoples’ rights and interests; property rights
Lambert, Edouard 10–11, 12, 13–14 land use control:
land degradation 439–40 climate change impact of land use 547, 550–2;
causes 440–1 see also climate change policies
index 1213
farmland use control 440, 455–6; see also agriculture; compensability of environmental loss 1038
land degradation marine pollution, international regime 1027–8;
forestry, see forestry control see also marine pollution control
by planning authorities, see planning law systems punitive damages 1037
Lange, Bettina 934 contaminated sites, liability options 634–7, 643t;
Latour, Bruno 756, 763, 766 see also contaminated sites
Latvia, tax incentives to cut packaging 158 corporate liability, see corporate environmental
Lazarus, Richard J. 1128–9, 1132, 1133–4, 1136, 1137 responsibilities
Lee, Maria 933 multinational companies, see multinational
Lees, Emma 765 companies, extraterritorial liabilities
legal culture: criminal liability, see criminal enforcement of
concept 48, 49–50, 763–4 environmental laws
for environmental governance 50 efficient systems, characteristics of 1042–3
attitudes towards compliance 50–1 under EU law 156–7
constitutionality rights and duties 1080–1; fault-based liability 1029–30, 1102–3; see also tort
see also constitutionality of environmental law claims
environmental education, influence on cultural contributory negligence 1033
attitudes 50–1; see also environmental education environmental regulation, relationship
globalization of environmental governance 168, with 1041–2; see also environmental regulation
654, 764, 772 pollution share liability 1035
GMOs regulation 521; see also genetically in France, see France, liability system
modified organisms (GMOs) regulation in India, see India, liability system
property rights, influence of legal culture 51; injunctions 1108–9
see also property rights international regimes 1027–8; see also international
rights-based thinking 51–3; see also human rights environmental law
scientific evidence use, neglect of legal culture in Japan, see Japan, liability system
763–7; see also scientific evidence for in Mexico 291–2
environmental governance nuisance, see nuisance
international law reception and applications, polluter-pays principle, see polluter-pays principle
cultural factors affecting 1180–3; see also product liability 1032, 1034, 1103
international environmental law Rylands v Fletcher liability 299, 1031–2, 1099, 1103
‘mapping’ environmental law, cultural insensitivity in Singapore 299
critique, see ‘mapping’ environmental law, strict liability, see strict liability for environmental
cultural insensitivity critique harm
rule of law, contribution to 40–2 in the UK, see United Kingdom, liability system
see also comparative environmental law in the US, see United States, liability system
legal formants theory 14; see also methodologies of see also environmental protection agencies;
comparative law litigation
legal transplants, see transplantations of licensing, see permits and licences
environmental law litigation 13–14, 790–2, 807–8
legislative capacity, see distribution of powers adjudicative models 808f
legislatures as regulatory actors 722–4; see also access to legal and scientific advice 805–6
environmental regulation costs and standing rules 802–5
levies, environmental, see taxation measures, levies intensity of review powers 800–2
liability systems 1026–7 judicial specialization 799–800
administrative enforcement 1040–1, 1088; see also jurisdictional specialization 798–9
environmental protection agencies Pring and Pring’s suggested criteria 796–7
in Australia 77–8, 1032 in Australia, see Australia, litigation
in Brazil, see Brazil, liability system in Belgium 799, 1035
chemicals regulation 593–4; see also chemicals in Brazil, see Brazil, litigation
regulation in Canada, see Canada, litigation
in China, see China, liability system challenges posed by 793–6
civil liability concept 1095 in China, see China, litigation
compensation 1108, 1109, 1116 class actions, see class actions
actionable damage 1036–7, 1101–2 court rules, role of 733
collective redress, see class actions; public interest environmental courts and tribunals, see courts and
litigation tribunals, specialist environmental
1214 index
litigation (cont.) Mcmillan, John 931

environmental principles promulgated via Macrory, Richard 721
judgments 663–5, 731; see also principles of Maitland, Frederic W. 1089
environmental law Malaysia:
in Finland 799 climate change policies 539
in France, see France, litigation farmers’ rights 529; see also human rights
in Germany, see Germany, litigation Malloy, Robin Paul 930
in Greece 799 Malone, Karen 956
in India, see India, litigation Mamlyuk, Boris N. 981
in Indonesia, see Indonesia, litigation Maori people, see New Zealand, Maori people’s rights
international law application, see international and interests
environmental law, reception and applications ‘mapping’ environmental law:
in Japan, see Japan, litigation approach followed in this volume 23–8, 29f, 36–7,
judges, role of 792–3, 794–5 43, 44, 45–8
judicial review, see judicial review culture, incorporation of 50–5
judicial systems mapping context 48–50
in Brazil 101–2 cultural insensitivity critique 38–9, 55; see also
in China 139, 140, 140f legal culture
in South Korea 336 design as a predictor of outcome assumption 37–8,
in the UK 798–9 43–4, 46–7
merits review 730–2 environmental protection goals, assumed
in Mexico, see Mexico, litigation prioritization 44–5, 47–8, 54
public interest litigation, see public interest litigation rule of law, contribution to legal culture 40–2
scientific evidence, use of 762–3, 794, 805–6; see also transplantation in toto assumption 42–3;
scientific evidence for environmental see also transplantations of environmental law
governance environmental education 958, 959t, 959–60, 961t;
in South Korea, see South Korea, litigation see also environmental education
in Sweden 1099, 1100, 1101, 1102, 1104, 1108, 1115 environmental law as a single overall technology
tort claims, see tort claims 7–8, 29, 30f
in the UK, see United Kingdom, litigation framework proposed by Nicholas Robinson 21–3
in the US, see United States, litigation purposes served by 37, 55–6
see also alternative dispute resolution; toolbox thinking critique 37–8, 43–4, 46–7
environmental justice; liability systems transnational networks, see transnational
Lo, Alex 944 networks, types see also methodologies of
local authorities, environmental governance, comparative law
see distribution of powers, local governments marine biodiversity and fish stocks:
and self-governing bodies Aquaculture Stewardship Council certification
locus standi, see standing scheme 736; see also non-governmental
Lohmann, Larry 936 organizations (NGOs)
London Convention on the Prevention of Marine Convention for the Conservation of Southern
Pollution by Dumping of Wastes and Other Bluefin Tuna 1993 777
Matter 1972 608, 777, 1177–8; see also marine under EU law 467, 505–6, 870–1; see also European
pollution Union, Common Fisheries Policy
Loughlin, Martin 1047 in Indonesia 243–4
LRTAP Convention (Geneva Convention on marine mammals 507
Long-Range Transboundary Air Pollution marine pollution control, see marine pollution
1979) 399–400 control
Gothenburg Protocol on Acidification, marine protected areas 467, 469, 848–9; see also
Eutrophication and Ground-level Ozone protected areas
1999 405 in Singapore 306, 308
see also air pollution, transboundary effects in South Korea 342–3
Lutz, Robert E. 18–19, 20, 21–2, 26, 27 sustainable fisheries 490, 507–8; see also sustainable
Lyon, Thomas 743, 746 development
challenges affecting 504–5
Macao, judicial system 139; see also China comparative law studies of, challenges 494–5
McAdams, Richard H. 1077 EU, Japanese and New Zealand approaches
McDonald, Leighton 731 compared 505–7, 508
McGillivray, Donald 936 under EU law 496, 497–9, 502–3, 506
index 1215
in Indonesia 244 feed-in tariffs for renewable energy 117–18,

in Japan 496–7, 499–500, 503, 507 561, 562
Marine Stewardship Council 782–3, 784–5, 1001, for fossil fuel extraction 549, 568–9; see also
1005 energy policies
in New Zealand 497, 501–2, 503–4, 507 in Japan 258
overfishing, causes 491–2, 497–8 in Peru 549
overfishing, data on 490–1 tax incentives 906–7, 912; see also taxation
regulation of 493–4, 495–6 measures
in South Korea 342 for climate change initiatives 548–9
sustainability measures 492, 493 in Denmark 158
see also conservation for energy efficiency measures 912–13, 915–16
marine pollution control: for fossil fuel extraction 549
in Canada 1177–8 in Ireland 915–16
in China 1168–9 in Japan 258
compensation systems 1027–8 in Latvia 158
in India 228 in Peru 548–9
in Indonesia 243–4 for renewable energy production 562, 923
treaties and instruments in Singapore 300–1, 302
International Convention for the Prevention of in South Africa 558
Pollution from Ships 1973 (MARPOL) 175, in the US, wind farm tax credits 923
1168–9 for water pollution control 426–7; see also water
London Convention on the Prevention of Marine pollution control
Pollution by Dumping of Wastes and Other see also property rights
Matter 1972 608, 777, 1177–8 Markus, Till 450
see also water pollution control MARPOL (International Convention for the
market mechanisms 926–8, 947 Prevention of Pollution from Ships 1973) 175,
accreditation assessors and certifiers as regulatory 1168–9; see also marine pollution control
actors 740–2; see also environmental Mattei, Ugo 981
regulation Maxwell, John W. 746
biodiversity offsetting 711, 741; see also habitats and May, James R. 1057, 1066
species conservation mediation, see alternative dispute resolution
cap-and-trade mechanisms Meidinger, Errol 784
emissions trading, see emissions trading merits review of environmental decision-making
for water pollution control 427; see also water 730–2; see also litigation
pollution control methane:
command and control regulation contrasted coalbed methane, see energy, unconventional oil
with 933; see also command and control and gas development
regulation emissions control 552; see also climate change
command and control model of market policies; solid waste management
mechanisms 930 methodologies of comparative law 8–9
concept and models 929–31 for environmental law studies 17–18; see also
eco-labelling, see eco-labelling comparative environmental law
emissions trading, see emissions trading bottom-up functionalism 18–19
for habitats and species conservation 485–7; cartographical approach, see ‘mapping’
see also habitats and species conservation environmental law
levies, see taxation measures, levies IPPEP Model, see China, IPPEP (Interactions of
payment for ecosystem services 846–7; see also Parties in Process of Environmental
habitats and species conservation Protection) Model
renewable energy production, incentives for, top-down functionalism 19–21
see renewable energy policies, price for general studies
competitiveness measures conceptual approach 11–12
scholarly approaches to 933–6 contextualist approach 15
comparative law studies of, challenges 933; descriptive approach 10–11
see also comparative environmental law evolutionary approach 10–11
standards, use of 860; see also standards factual approach 13–14
subsidies functionalism 12–13
for climate change initiatives 548–9; see also legal formants theory 14
climate change policies legal transplants studies 15–16
1216 index
Mexico: unconventional oil and gas development, see

air pollution control 283 energy policies, unconventional oil and gas
climate change policies 283–4, 534 development
carbon tax 284, 548 mobile phone installations, nuisance from
energy efficiency 560 electromagnetic waves 182, 188, 198
constitutional structure of environmental ‘model thinking,’ see ‘mapping’ environmental law
governance Mongolia, ‘water pollution’ definition 423
constitutional rights and duties 279–81, Montego Bay Convention, see Convention on the Law
294; see also Mexico, principles of of the Sea 1982 (UNCLOS)
environmental law Montreal Protocol on Substances that Deplete the
distribution of powers between federal and Ozone Layer 1987 553, 571–3, 1168, 1181–2
sub-national governments 278–9 Morocco, Tétouan Wind Farm Project 571–2; see
contaminated sites remediation 288 also renewable energy policies
environmental law motor vehicles, pollution from, see vehicles, control of
development of 282 pollution from
General Act on Ecological Balance and Moules, Richard 1122
Environmental Protection 1988 multinational companies, extraterritorial liabilities
(LGEEPA) 278, 282–3, 285–6, 288, 289, 291 1141–2, 1158
genetically modified organisms (GMOs) under EU law, see European Union, private
regulation 287, 523 international law applied to multinational
habitats and species conservation 285–7 companies
implementation and enforcement framework in France 1149
challenges affecting 294 in the Netherlands 1148–9, 1155
criminal enforcement 293 in the UK 1149–52, 1156–8
environmental protection agencies 278, 291 under US Alien Tort Statute, see United States,
liability rights enforcement 291–2 Alien Tort Statute
litigation, see Mexico, litigation see also corporate environmental responsibilities
Ministry of the Environment and Natural municipal solid waste management, see solid waste
Resources (SEMARNAT) 278, 291 management
taxation measures 284 Murray-Darling Basin Plan 65, 430, 435; see also
indigenous peoples’ rights and interests 281, 290 Australia; water resources governance, rivers
litigation and lakes
amparo proceedings 290, 291
class actions and collective amparo proceedings Nagoya Protocol on Access to Genetic Resources and
291, 292–3 the Fair and Equitable Sharing of Benefits
judicial review 291 Arising from their Utilization 2010 465; see also
limitation period 291–2 Convention on Biological Diversity 1992 (CBD)
principles of environmental law 282 Namibia, protected areas 844
access to environmental information and Nash, Jonathan Remy 936
justice 288–90 nature conservation, see habitats and species
intergenerational equity 280 conservation
right to a healthy environment 280–1, 294 negligence claims, see tort claims
sustainable development 279 Nelken, David 764
waste management 287–8 Nepal:
water resources governance 284–5 air pollution control 732
water pollution control 285 international law application 1174, 1177
Minamata Convention on Mercury 2013 777 Netherlands:
mining: climate change policies 534, 544
affecting wildlife, Spain 472 constitutional rights and duties 1077
aggregates levy, UK 917 contaminated sites remediation 632, 633, 638
Initiative for Responsible Mining Assurance 782 duty to protect the environment principle 168
minerals extraction, authorization eco-labelling 1006
in Australia 63–4 electrification of vehicles 561, 576
in Brazil 84, 86, 89 environmental planning 817, 822, 824, 829
in South Africa, see South Africa, minerals integrated pollution control by local authorities 700
extraction, authorization strict liability 1030
sand mining, India 227 tort claims 1099, 1100
index 1217
international law application 1174, 1175, 1178 Environment Court 802, 804–5
Milieudefensie v Royal Dutch Shell plc controversy fisheries policies 497, 501–2, 503–4, 507
1148–9, 1155 compared with EU and Japanese policies 505–7,
Urgenda Foundation v The Netherlands (Hague 508
District Court Chamber for Commercial habitats and species conservation 709, 710
Affairs) 1109, 1110, 1174, 1180 Maori people’s rights and interests; see also
water resources governance 689 indigenous peoples’ rights and interests
New South Wales: customary property rights 714–15
case law juridical rights of the Whanganui River
Telstra Corporation Ltd v Hornsby Shire recognized 436–7, 714–15, 718, 1060
Council (NSW Land and Environment property stewardship concept (Kaitiakitanga)
Court) 664–5, 676 recognized in law 712–13, 716
Warringah Shire Council v Sedevcic (NSW Court traditional fishing rights 501, 506
of Appeal) 79 property law, influence of legal culture 51;
climate change policies see also legal culture
Climate Change + Me education project 964, strict liability offences 1130
965, 965f waste management 610–11, 615, 617, 618, 622, 623
judicial responses 72–3 Ning Wang 944
contaminated sites remediation 640 noise pollution control:
Crown land management 70–1 aircraft noise, taxation measures 916–17
habitats and species conservation 68–9, 486, in Australia 916–17
711, 744 in France 916
Hunter Valley salinity cap-and-trade mechanism 427 in Germany 196, 198, 207
implementation and enforcement framework in India 223
environmental audits 740 in Japan 263–4
environmental impact assessments 76 in Singapore 308
environmental protection agencies 726, 727–8 vehicle noise, see vehicles, control of pollution from
Independent Commission Against non-governmental organizations (NGOs):
Corruption 734 access to environmental information and justice
Land and Environment Court 78 rights 982–3; see also access to environmental
liability system 77 information and justice
litigation, see New South Wales, litigation in China 898
permits and licences, insurance cover environmental campaigning 22, 737
obligations 739 environmental duties 19
self-regulation 744 examples
standards 742, 858 Aquaculture Stewardship Council certification
litigation scheme 736
judicial review 675–6, 802 Forest Stewardship Council certification and
Land and Environment Court 802, 805 labelling scheme 737, 782, 784, 785
merits review 731 Global Ecolabelling Network 993; see also
principles of environmental law eco-labelling
intergenerational equity 72 Global Sustainable Tourism Council 781
as legal catalysts 675–6 International Federation of Organic Agriculture
precautionary principle 664–5 Movements 782
sustainable development 664–5; see also Marine Stewardship Council certification and
Australia, sustainable development labelling scheme 782–3, 784–5, 1001, 1005
waste management Rainforest Alliance 783, 1005
recycling policies 614, 622 World Wide Fund for Nature 507
regulatory approach 612 for habitats and species conservation 507, 736, 737,
shared responsibility principle 623 738, 782–3
treatment near source/proximity principle 618 as private/private transnational networks 781–4;
‘waste’ definition 613, 614 see also transnational networks
waste hierarchy 615 public interest litigation, standing, see public
see also Australia interest litigation, NGO standing in
New Zealand: as regulatory actors 720–1; see also environmental
climate change policies 534, 544, 548, 560 regulation
contaminated sites remediation 640 administering environmental laws 737
1218 index
non-governmental organizations (NGOs) (cont.) in Japan 263

enforcing and shaping environmental see also air pollution
laws 737–8 OECD (Organization for Economic Co-operation and
formulating environmental laws 736–7 Development):
promoting environmental laws 735–6 on environmental taxation 905, 906; see also
setting emissions reductions targets 546; see also taxation measures
climate change policies Guidelines for Multinational Enterprises 781
standards setting 781–4; see also standards polluter-pays principle formulation 905; see also
non-regression principle 174–5; see also principles of polluter-pays principle
environmental law on self-regulation 743, 744–5; see also
non-state actors, see non-governmental organizations self-regulation
(NGOs) as a transnational network 774, 781; see also
Nordic Convention on the Protection of the transnational networks
Environment 1974 1178 waste management policies 609, 610, 619; see also
Northern Ireland, environmental law and governance waste management
356, 357, 367; see also United Kingdom Oguamanam, Chidi 441–2
Northern Territory, heritage conservation 69–70; oil and gas development, unconventional, see
see also Australia energy policies, unconventional oil and gas
Norway: development
energy policies 561, 565, 576 oil spill pollution, see marine pollution control
reduction of funding to Brazil’s anti-deforestation Ontario:
programme 105 emissions cap-and-trade system 118
right to a healthy environment 1078 feed-in tariff for renewable energy 117–18
taxation measures 916 see also Canada
Noumea Convention for the Protection of the Natural organic food, see agriculture, organic food
Resources and Environment of the South O’Riordan, Timothy 957–8
Pacific Region 1982 470 Örücü, Esin 932
nuclear energy: Ostrom, Elenor 693
in Chile 566 Our common future (United Nations, 1987) 955,
in France 569–70 956–7
Fukushima nuclear accident, Japan (2001), nuclear overfishing control, see marine biodiversity and fish
phase-outs following 275–6, 554–5, 566 stocks, sustainable fisheries
in Germany 206, 554–5, 566
in India 570 packaging waste management, see recycling policies,
international liability regime 1027–8 packaging and plastic waste
in Japan 275–6, 566 Pakistan:
radioactive waste, see contaminated sites; hazardous climate change policies 534, 544, 732–3, 1174
waste control constitutional rights and duties 1056, 1065
in South Africa 332–3 fossil fuels use 565, 566
in the US 570–1 Indus River dam controversy 432
see also energy policies international law application 1174
nuisance 1032–3, 1104–5 Paris Agreement on Climate Change 2015:
electromagnetic waves from mobile phone ‘bottom-up’ rationale 1163
installations 182, 188, 198 greenhouse gas emission reduction targets
in Germany 1104 for Brazil 97–8
public nuisance 1033, 1038 influence on policies; see also climate change
in Spain 1104 policies
in Sweden 1104 in France 178–9
in the UK 356, 1031, 1104, 1105, 1107 in Japan 269
see also liability systems; pollution control; land remediation policies 447–8; see also land
tort claims degradation, remediation policies
Nye, Joseph 1164 institutional investors, climate change reporting
duties 187
Oates, Wallace 905 market mechanisms, indirect reference to 929;
odour pollution control: see also market mechanisms
in Indonesia 242 standards use 853; see also standards
index 1219
US withdrawal from 188, 853 breach of planning orders as ‘three-step’ offence

see also Framework Convention on Climate 1125; see also criminal enforcement of
Change 1995 (UNFCCC); international environmental laws
environmental law EIAs, see environmental impact assessments (EIAs)
Parker, Christine 721 for land remediation 457–8; see also land
parliaments as regulatory actors 722–4; see also degradation, remediation policies
environmental regulation merits review of planning decisions 731; see
patenting of GMOs 524–9; see also genetically also litigation
modified organisms (GMOs) regulation; precautionary principle, see precautionary principle
property rights in Singapore, see Singapore, land use planning
People’s Republic of China, see China system
permits and licences: siting of renewable energy transmission lines 562–4;
activities in protected areas 845–6; see also see also renewable energy policies
protected areas in the UK, Planning Inspectorate 831
in Brazil, see Brazil, permits and licences plants:
breach of licence as ‘two-step’ offence 1124–5; farmers’ rights 529; see also human rights
see also criminal enforcement of GMOs, see genetically modified organisms (GMOs)
environmental laws regulation
fishing licences, Japan 503 juridical rights of nature/non-humans 436–7, 714–15,
insurance cover obligations 739 1059–62, 1069; see also public interest litigation
for minerals extraction, see mining, minerals plant breeders’ rights 525
extraction, authorization species protection, see endangered species
as property rights; see also property rights protection; habitats and species conservation
conflicts with human/constitutional rights 431 plastic:
public trust doctrine, see public trust doctrine plastic bags, measures to reduce use 916
R. (on the application of Mott) v Environment polymers and micro-plastics 585; see also chemicals
Agency (UK Supreme Court) 41 regulation
in South Korea 339–40 waste management, see recycling policies,
standards, licensing facilitated by 860; see also packaging and plastic waste
standards Poland:
unconventional oil and gas development 856; Białowieża Forest case (European Commission v
see also energy policies, unconventional oil Poland (C-441/17)) 168–9
and gas development carbon tax 548
for water pollution control 422–3, 426; see also constitutional rights and duties 1077
water pollution control contaminated sites remediation 633
in Brazil 426 national parks 471
in Germany 201–2, 426 strict liability 1030
in Mexico 285 unconventional oil and gas development 856
objectives 423–4 water pollution control 426
in Singapore 305 polluter-pays principle 19, 627, 739, 1027, 1105
in South Korea 347 in Australia 659
in the UK 361 in Canada 120
in the US 381, 426 contaminated sites remediation application 634–5,
Peru: 635–6; see also contaminated sites
forestry control 548–9 under EU law 154, 906
renewable energy policies 565 extended producer responsibility principle, waste
Philippines: management law 609, 620–3, 625; see
eco-labelling 1006 also waste management, principles
farmers’ rights 529; see also human rights in India 224–5, 1176–7
Manila Bay, pollution control 728, 1069 in Indonesia 240
precautionary principle 1133 OECD formulation 905; see also OECD
Phillipson, Martin 738, 739 (Organization for Economic Co-operation and
Pigou, A.C. 905, 907, 934 Development)
planning, environmental, see environmental planning pollution share liability 1035
planning law systems: in Singapore 301
in Australia, see Australia, sustainable development in South Korea 338
1220 index
polluter-pays principle (cont.) under EU law 154–5, 169, 513, 671

taxation measures, justified by principle 905–6; in France 175, 182–3
see also taxation measures inconsistent versions of 660–1
as ‘twilight’ norm 658 in India 224–5
in the UK 829 in Indonesia 248
water pollution control application 426–7; see also in Japan 258
water pollution control in New South Wales 664–5
see also liability systems; principles of in the Philippines 1133
environmental law Rio Declaration 1992 formulation 248, 512, 660,
pollution control: 661; see also Rio Declaration on Environment
integrated pollution prevention and control (IPPC) and Development 1992
IPPC Directive (96/61/EC) 198–9, 207, 359, 402 scientific uncertainty concept 753–4; see also scien-
by local governments 699–700; see also tific evidence for environmental governance
distribution of powers, local governments in South Korea 339
and self-governing bodies as ‘twilight’ norm 658
standards, facilitated by 863–4, 871–3; see also UNFCCC formulation 660; see also Framework
standards Convention on Climate Change 1995
polluter-pays principle, see polluter-pays principle (UNFCCC)
pollution types see also principles of environmental law
air, see air pollution prevention principle:
groundwater, see groundwater pollution anticipative prevention (mizen ni fusega’eru),
hazardous waste, see hazardous waste control Japan 258
industrial, see industrial pollution control under EU law 617
marine, see marine pollution control in France 173
noise, see noise pollution control as principle of customary international law 655
odour, see odour pollution control in South Africa 323
soil, see contaminated sites waste management application 617–18; see also
water, see water pollution control waste management
treaties and instruments see also principles of environmental law
ASEAN Agreement on Transboundary Haze principles of environmental law 651–3, 676–7, 1171
Pollution 2002 303, 400 access to environmental information and justice,
Basel Convention 1989, see Basel Convention on see access to environmental information and
the Control of Transboundary Movements of justice
Hazardous Wastes and their Disposal 1989 in Australia, see Australia, principles of
International Convention for the Prevention of environmental law
Pollution from Ships 1973 (MARPOL) 175, in Brazil, see Brazil, principles of environmental law
1168–9 common concern of humankind 448–9, 465,
London Convention on the Prevention of Marine 474, 475
Pollution by Dumping of Wastes and Other common heritage of mankind 174, 448
Matter 1972 608, 777, 1177–8 constitutional environmental norms 1077–80;
LRTAP Convention, see LRTAP Convention see also constitutionality of environmental law
(Geneva Convention on Long-Range ecological function of property, Brazil 87–8
Transboundary Air Pollution 1979) equitable and reasonable utilization of
Stockholm Convention on Persistent Organic watercourses 432
Pollutants 2001 267, 592 under EU law, see European Union, principles of
pollution haven theory 1140 environmental law
Porter, Theodore 752 in France, see France, principles of environmental law
Portugal, duty to protect the environment principle 168 in Germany, see Germany, principles of
Posner, Eric A. 1131 environmental law
precautionary principle 73, 654, 731 in India, see India, principles of environmental law
applied to GMOs 512–13; see also genetically in Indonesia, see Indonesia, principles of
modified organisms (GMOs) regulation environmental law
in Australia 664–5, 1176 integration principle, see integration principle
in Brazil 674–5 intergenerational equity, see intergenerational
in Canada 120–1 equity principle
Cartagena Protocol 2000 formulation 660–1; international law norms 1175–7; see also
see also Cartagena Protocol on Biosafety to international environmental law
the Convention on Biological Diversity 2000 in Japan, see Japan, principles of environmental law
index 1221
land degradation neutrality 452–3, 458; see also environmentally damaging agreements

land degradation potentially unenforceable 1110–11
as legal catalysts 653, 669–70; see also judicial environmentally protective agreements
review facilitated 1096–8
in Brazil 674–5; see also Brazil, principles of tort claims, see tort claims
environmental law private law concept 1093–5
EU law principles 670–2; see also European private law instruments in France 179
Union, principles of environmental law ‘private’ rights versus conservation, see property
in India 672–4; see also India, principles of rights, ‘private’ rights versus conservation
environmental law property rights, see property rights
in New South Wales 675–6; see also New South project finance:
Wales, principles of environmental law Equator Principles for managing environmental and
as legal connectors 653–4; see also comparative social risk in project finance transactions
environmental law 783, 880
via judicial dialogue 661–5 World Bank, EIA policies 879, 885, 886, 897–8;
via legal scholarship 665–9 see also environmental impact assessments
via soft law instruments 655–61 (EIAs)
in Mexico, see Mexico, principles of see also OECD (Organization for Economic
environmental law Co-operation and Development)
no-harm principle 401 property rights 703–4
non-regression 174–5 customary and indigenous property systems 712–15,
polluter-pays, see polluter-pays principle 717–18; see also indigenous peoples’ rights and
precaution, see precautionary principle interests
prevention principle, see prevention principle land tenure systems 454, 455
promulgated via court judgments 663–5, 731; ecological function of property principle,
see also litigation Brazil 87–8
public trust doctrine, see public trust doctrine emissions trading schemes, application to 1096–8;
as quasi-norms 658, 660, 662 see also emissions trading
rectification at source/proximity principle 618, 654 forests, restrictions on private rights in Brazil 94–6,
right to a healthy environment, see public health 103; see also Brazil, forestry control
and the environment, right to a healthy ‘land-grabbing’ in developing countries as human
environment rights issue 441–2; see also land degradation
Rio Declaration 1992 on, see Rio Declaration on legal culture influence 51; see also legal culture
Environment and Development 1992 market mechanisms, see market mechanisms
in South Africa, see South Africa, principles of over animals
environmental law excluded in France 177
in South Korea, see South Korea, principles of wild species 474–5, 707–8
environmental law paradigms
sustainable development, see sustainable entitlements-based models 704–5
development resource allocation models 705
of waste management, see waste management, web of interests 705–6
principles patenting of GMOs 524–9; see also genetically
see also human rights modified organisms (GMOs) regulation
Pring, Catherine and George W. 796–7 permits and licences as, see permits and licences, as
private international law applied to multinational property rights
companies, see multinational companies, ‘private’ rights versus conservation 706–7; see also
extraterritorial liabilities habitats and species conservation
private law and the environment 1092, 1117 biodiversity offsetting 711, 741; see also market
environmental law in private law 1112–13; mechanisms
see also tort claims in common law jurisdictions 707–9, 715
environmental crimes as basis of tort claims 1113, conservation easements and covenants 709–11,
1114–16, 1114t; see also criminal enforcement of 1098
environmental law environmental stewardship duty, scope for
regulatory compliance as defence in tort recognition 716–17
claims 1116 protected areas, management agreements with
market mechanisms, see market mechanisms landowners and local communities 711–12,
private law as environmental law 1096, 1111, 1112, 843–4, 846–7; see also protected areas
1112t public trust doctrine, see public trust doctrine
1222 index
property rights (cont.) proximity principle 618, 654; see also principles of

regulatory takings or expropriation environmental law
in Brazil 88 public health and the environment:
habitats and species conservation measures, air pollution
whether de facto expropriation 484–5; see also public health impact of 416
habitats and species conservation as public health issue in China 412
in the US 377, 435 food security 443, 448; see also human rights
wetlands protection, whether de facto GMOs, see genetically modified organisms (GMOs)
expropriation 433, 435–6; see also wetlands regulation
protection health-related human rights 1065–7; see also
R. (on the application of Mott) v Environment human rights
Agency (UK Supreme Court) 41 Minamata Convention on Mercury 2013 777
see also human rights; private law and the product health warnings 1000, 1016–18; see also
environment eco-labelling
protected areas 834–6 right to a healthy environment 51–2, 53, 1055,
Antarctica, see Antarctica 1056–9, 1067, 1078; see also constitutionality of
challenges for the future 850–1 environmental law; human rights
definitions and categories in India 53–4
CBD definition 456, 467–8; see also in Indonesia 234
Convention on Biological Diversity under international law 1045, 1054
1992 (CBD) in Japan 257
IUCN 456, 468–9, 470, 836–8; see also IUCN in Mexico 280–1, 294
(International Union for Conservation of in Norway 1078
Nature) in Quebec 113, 118
designations 839–41 slaughterhouse regulation, India 229
de-designations 841–2 water resources governance, public health
under Ramsar Convention 1971 433–4, 457, objectives 420–1; see also water resources
839–40; see also Ramsar Convention on governance
Wetlands of International Importance public interest litigation 794, 1038–9
especially as Waterfowl Habitat 1971; in Australia 79, 738
wetlands protection in Brazil 89, 90, 101, 102–4, 1039
Sites of Special Scientific Interest, EU law 841; in Canada 119, 125, 126
see also European Union, habitats and species in China 140–1, 144, 415
conservation in France 184–5
Special Areas of Conservation, EU law 471–2, in India 223, 230, 1061–2
840; see also European Union, habitats and in Indonesia 249–51
species conservation juridical rights of nature/non-humans 436–7,
habitats and species nexus 466–7, 478 714–15, 1059–62, 1069
layers of law and governance 838–9 multinational companies as defendants, see
management and control multinational companies, extraterritorial
agreements with landowners and local liabilities
communities 711–12, 843–4, 846–7; see also NGO standing in 19, 737, 898; see also
property rights, ‘private’ rights versus non-governmental organizations (NGOs)
conservation in Brazil 89, 90
controls on activity 844–6 at the Court of Justice of the European
enforcement 847–8 Union 165–6, 406, 803
payment for ecosystem services 846–7; see also in Sweden 807
market mechanisms in the US 393
plans 842; see also environmental planning in the US 391–3, 738
marine protected areas 467, 469, 848–9; see also see also class actions; human rights; judicial
marine biodiversity and fish stocks review; litigation
sacred sites 835; see also indigenous peoples’ rights public international law, see international
and interests environmental law
size of 469–72 public participation in environmental decision-making,
World Heritage Site protection, see heritage see access to environmental information and
conservation, World Heritage Site protection justice
see also habitats and species conservation public trust doctrine 19, 429, 1040
index 1223
in Australia 707 in the US 613, 622

in India 225, 431 see also circular economy policies; waste
in South Africa 323–4 management
in the US 431, 707, 718, 1040 regulatory bodies, environmental, see environmental
see also principles of environmental law protection agencies
regulatory organization, see environmental
Quebec: regulation
carbon tax 117 regulatory takings, see property rights, regulatory
citation of common law authorities by takings or expropriation
courts 118 remediation of environmental harm:
emissions cap-and-trade system 118 contaminated sites, see contaminated sites,
right to a healthy environment 113, 118 remediation policies
see also Canada degraded land, see land degradation, remediation
Queensland: policies
flood mitigation 739–40 in France 183–5
habitats and species conservation 711 polluter-pays principle, see polluter-pays principle
liability system 77–8 renewable energy policies:
minerals extraction, authorization regime in Australia 72–3, 74
63–4 in Bangladesh 565
Planning and Environment Court 78 biofuel 565
pollution control 67–8 biogas/landfill gas capture 552
see also Australia in Brazil 93, 556
in Canada 117–18
Rabel, Ernst 12 in China 552, 561, 563
radiation: under EU law 162, 552
electromagnetic waves from mobile phone in France 554
installations 182, 188, 198 in Germany 199–200, 210, 562, 564, 578
radioactive waste, see contaminated sites; hazardous hydroelectric power
waste control; nuclear energy Belo Monte hydroelectric project controversy,
rainforest protection, Brazil, Brazil 93
see Brazil, rainforest protection Commonwealth v Tasmania (Tasmanian Dam
Rajamani, Lavanya 929 case) (Australian High Court) 62–3
Ramsar Convention on Wetlands of International in India 562
Importance especially as Waterfowl Habitat integrating renewables into grid operations and
1971 422, 433–5, 436, 457, 469 accounting 564–5
protected area designations under 433–4, 457, in Japan 270
839–40; see also protected areas see also in Morocco, Tétouan Wind Farm Project
wetlands protection 571–2
REACH (Registration, Evaluation, Authorization in Peru 565
and Restriction of Chemicals) Regulation price competitiveness measures 561–2;
(1907/2006/EC), see European Union, see also market mechanisms
chemicals regulation (REACH regime) feed-in tariffs 117–18, 561, 562, 578
rectification at source principle 618, 654; see also Renewable Purchase Obligations 562
principles of environmental law tax incentives 562, 923
recycling policies: siting of transmission lines 562–4
in Australia 614, 621–2 in South Korea 342
under EU law 204, 613–14 in Tanzania 565
in Germany 203–4, 208 in Thailand 552
in Japan 265 in the US 538, 552, 562, 563–4, 923
in New South Wales 614, 622 see also climate change policies; energy policies
packaging and plastic waste Republic of Korea, see South Korea
under EU law 158, 204, 616–17, 621 reservoirs 431–2; see also water resources governance,
product responsibility principle, Germany 204, rivers and lakes
208, 621 Revesz, Richard 936
in South Australia 622 rights-based thinking 51–3; see also human
in South Korea 345, 346 rights; ‘mapping’ environmental law
in the UK 362 Rio+20 conference (2012) 979, 983–4
1224 index
Rio Declaration on Environment and Development need to take back collective epistemic responsibility
1992 168, 655–6, 880, 1175 761–3
influence on principles roles
in Australia 657; see also Australia, sustainable informing decision-making 752, 864
development legitimizing policies 752, 762
EU law principles 658 problem identification and analysis 751
in France 657–8 setting standards, see standards, scientific
judicial commitment to Rio Declaration principles evidence, role in standards setting
Johannesburg Principles on the Role of Law and Scotford, Eloise 155
Sustainable Development (2002) 662–3 Scotland:
Judicial Handbook on Environmental Law climate change policies 534
(2005) 662, 663 devolution of UK central government powers
on land degradation control and prevention 444 to 356, 357, 373; see also United Kingdom
polluter-pays principle formulation 906; see also environmental protection agencies 366–7, 822–3
polluter-pays principle ‘gold-plating’ of environmental laws 357
precautionary principle formulation 248, 512, 660, habitats and species conservation 838
661; see also precautionary principle conservation burdens on privately owned
Principle 10: access to environmental information land 710–11
and justice 978–85, 986, 1063; see also access to property rights over wildlife 708
environmental information and justice St Kilda 838
on sovereignty over natural resources 465–6 landfill tax 916
on sustainable development 257, 656 liability system 356, 1032
see also principles of environmental law; soft law see also United Kingdom
instruments sea areas:
rivers, see water resources governance, rivers and lakes biodiversity conservation, see marine biodiversity
road traffic, pollution from, see vehicles, control of and fish stocks
pollution from pollution, see marine pollution control
Robinson, Nicholas 22–3, 24–5, 26, 797 secondary legislation 723; see also environmental
Rousell, David 964, 965 regulation
rule of law 733 Seerden, René 630
contribution to legal culture 40–2; see also Selby, David 952
‘mapping’ environmental law, cultural self-regulation 743
insensitivity critique in Australian Capital Territory 745–6
environmental principles promulgated as ‘rule by enterprises 744–6; see also corporate
of law’ commitment 662–3; see also principles environmental responsibilities
of environmental law chemical risk management 580, 584, 605, 745
see also constitutionality of environmental eco-labelling 998, 1002, 1004; see also
law; environmental justice eco-labelling
Russia, environmental impact assessments 881, 885, voluntary information disclosure 991–3; see also
888, 890–1, 893, 896, 897, 898 environmental information duties, corporate
Russo, Christiana M. 1135, 1136 reporting
in France 179
Sagoff, Mark 934 in Germany 208
Sauvé, Lucie 958, 959, 959t by individuals 743–4
Schlesinger, Rudolf B. 13 in New South Wales 744
scientific evidence for environmental private/private transnational networks 781–4;
governance 749–51 see also transnational networks
challenges standards, self-regulation facilitated by 743–4,
democratic legitimacy 754, 759 857–60; see also standards
‘kettling’ science 755–60, 764 in the US 746
law and science interdisciplinary divide 754, see also environmental regulation
761–3 shale gas, see energy, unconventional oil and gas
neglect of legal culture 763–7; see also legal development
culture shipping industry:
scientific uncertainty 753–4, 1133; see also emissions reductions 574; see also climate change
precautionary principle policies
litigation use 762–3, 794, 805–6; see also litigation energy efficiency initiatives 559
index 1225
International Convention for the Control and Rio Declaration 1992, see Rio Declaration on
Management of Ships’ Ballast Water and Environment and Development 1992
Sediments 2004 481 as source of environmental principles 655–61;
ship-source pollution, see marine pollution control see also principles of environmental law
see also vehicles Stockholm Declaration on the Human Environment
Shiva, Vandana 527, 528 1972 168, 1050–1, 1175, 1176
Singapore 297–8, 314 World Declaration on the Environmental Rule of
air pollution control 300–4 Law (2016) (IUCN) 663
pollution from forest burning in Indonesia 303–4 soil erosion, see land degradation
climate change policies 309–10 soil pollution, see contaminated sites
energy efficiency 300, 309–10, 560 solid waste management:
constitutional structure of environmental in Brazil 98, 622
governance in Canada 610
government 298 under EU law 552, 610
legal system and sources of law 298–9 in India 228
contaminated sites remediation 307 methane emissions control 552; see also climate
habitats and species conservation change policies
Cities Biodiversity Index 308 in Mexico 287
main laws 299, 308–9 in South Korea 345
marine biodiversity 306, 308 in the US 382–3, 552, 610, 614, 616
implementation and enforcement framework see also waste management
criminal enforcement 306–7, 309 Somerville, Margaret 956
environmental impact assessments 313–14 South Africa:
environmental protection agencies 310–11, case law
725, 729 BP Southern Africa (Pty) Ltd v MEC for
liability system 299 Agriculture, Conservation and Land Affairs
standards 300, 301, 309–10 (High Court) 318
taxation measures, see Singapore, taxation City of Cape Town v Maccsand (Pty) Ltd and
measures Others (SCA) 327–8, 330
industrial pollution control 300, 302–3, 305, 306, Director: Mineral Development, Gauteng Region v
307, 308, 312–14 Save the Vaal Environment (Sup Ct App) 1057
land use planning system 311–12 Earthlife Africa Johannesburg and South African
siting of industries 312–14 Faith Communities’ Environment Institute
noise pollution control 308 v Minister of Energy and Others
pollution control (High Court) 332–3
main laws 299 Fedsure Life Assurance Ltd v Greater
polluter-pays principle 301 Johannesburg Transitional Metropolitan
siting of industries 312–14 Council (Const. Ct) 321
taxation measures Fuel Retailers Association of Southern Africa v
carbon tax 302 Director-General: Environmental Management,
tax incentives promoting energy efficiency 300–1, Department of Agriculture, Conservation and
302 Environment, Mpumalanga Province, and
waste management 306–7 Others (Const. Ct) 318–19, 325
water resources governance 304–6 Government of the Republic of South Africa
water pollution control 304, 305–6 and Others v Grootboom and Others
sites of environmental interest, se

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

the oxford handbook of

2. Value in Comparative Environmental Law—3D Cartography

6. People’s Republic of China 128

7. The European Union 149

10. India 212

11. Indonesia 232

12. Japan 253

13. Mexico 277

14. Singapore 296

15. South Africa 315

16. South Korea 334

17. United Kingdom 351

18. United States of America 374

20. Environmental Regulation of Freshwater 418

21. Land Degradation 438

22. Nature Conservation 460

23. Regulation of Marine Capture Fisheries 489

24. Genetically Modified Organisms 509

25. Climate Change and Energy Transition Policies 531

26. Regulation of Chemicals 578

27. Waste Regulation 607

28. Contaminated Sites 626

30. Distribution of Powers 678

31. Property Systems and Environmental Regulation 703

32. Regulatory Organization 719

33. Sciences, Environmental Laws, and Legal Cultures:

34. Transnational Networks 769

35. Adjudication Systems 790

37. Protection of Sites 834

38. Command and Control Standards and Cross-jurisdictional

39. The Assessment of Environmental Impact 876

41. Trading Schemes 926

43. Informational Requirements and Environmental Protection 972

44. Eco-labelling 996

Ex Post Injury-based Mechanisms

46. A Cartography of Environmental Human Rights 1044

48. Environmental Law and Private Law 1091

49. Environmental Law and Criminal Law 1119

50. Environmental Law and Private International Law 1139

51. Environmental Law and Public International Law 1160

Inter-American Commission on Human Rights

Inter-American Court of Human Rights

International Court of Justice

Trail Smelter Arbitration (United States v Canada), Ad Hoc International Arbitral

World Trade Organisation Dispute Settlement Body

Leatch v Director General of National Parks and Wildlife Service (1993)

Commission v Germany, Case C-142/16, (ECLI:EU:C:2017:301) ����������������������������������������������������������� 473

Tribunal des conflits

National Green Tribunal

Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and

Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432����������������������������������������������������������������������������������795

Defenders of Wildlife v Babbitt, 95 8 F. Supp. 670 (D.D.C. 1997)���������������������������������������������������������� 477

International Instruments Antarctic Treaty 1959�����������������������������������������839

thereof, beyond the Limits of National Convention on International Trade in

ASEAN Agreement on the Conservation of Context 1991, 1989 U.N.T.S. 310

Tirana Declaration 2011������������������������������������ 442 Civil Code

Forestry Act 1920 (Tas) Protection of the Environment Administration

Environmental Planning and Assessment Heritage Act 2011 (NT)

6. People’s Republic of China 128

7. The European Union 149

10. India 212

11. Indonesia 232

12. Japan 253

13. Mexico 277

14. Singapore 296

15. South Africa 315

16. South Korea 334

17. United Kingdom 351

18. United States of America 374

20. Environmental Regulation of Freshwater 418

21. Land Degradation 438

22. Nature Conservation 460

23. Regulation of Marine Capture Fisheries 489

24. Genetically Modified Organisms 509

25. Climate Change and Energy Transition Policies 531

26. Regulation of Chemicals 578

27. Waste Regulation 607

28. Contaminated Sites 626

30. Distribution of Powers 678

31. Property Systems and Environmental Regulation 703

32. Regulatory Organization 719

34. Transnational Networks 769

35. Adjudication Systems 790

37. Protection of Sites 834

39. The Assessment of Environmental Impact 876

41. Trading Schemes 926

43. Informational Requirements and Environmental Protection 972

44. Eco-labelling 996

46. A Cartography of Environmental Human Rights 1044

48. Environmental Law and Private Law 1091

49. Environmental Law and Criminal Law 1119

50. Environmental Law and Private International Law 1139

51. Environmental Law and Public International Law 1160

Commission v Germany, Case C-142/16, (ECLI:EU:C:2017:301) �� 473

Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432��795

Defenders of Wildlife v Babbitt, 95 8 F. Supp. 670 (D.D.C. 1997)�� 477

International Instruments Antarctic Treaty 1959��839

Tirana Declaration 2011�� 442 Civil Code

Administrative Arrangements (Administrative Water Code 1934��85

Art 41��637 Forest Code of the State of Minas Gerais, Lei

Civil Code of Quebec, CQLR c. CCQ-1991�� 118 Environmental Goals and Sustainable

Art 9, para 3 ��144 Denmark

Art 5��540, 853 EC Directive 78/319 on toxic and dangerous

Arts 10–20��616 13 December 2011 on the assessment of the

Regulation (EC) No 338/97 on the protection of Arts 3(3), 3(15)��585

Regulation (EC) No. 1224/2009 of 20 November Arts 91–101 �� 717

Art 116�� 187 Loi Grenelle II du 12 juillet 2010 portant

Art 72(3) �� 195 Federal Soil Protection Act of

Art 13(2)��237 Presidential Regulation No. 71 of 2011

Conservation Act 1987��502 Forest and Wildlife Law No. 29763

Parks and Trees (Preservation of Trees) Order, s 2(4)(b)–(r) �� 323

Environmental Impact Assessment Regulations, Arts 33�� 347, 348

Enhancement and Conservation of National Wildlife and Countryside Act 1981��363

Sch 7��358 Water and Sewerage Services (Amendment) Act

reg 36–37��363 Endangered Species Preservation

§ 404�� 486 Government Performance Results

1.4.3 The Architecture of Environmental Law as a Single