Showing papers on "Environmental law published in 2004"

The precautionary principle in biodiversity conservation and natural resource management : an issues paper for policy-makers, researchers and practitioners

Abstract: The precautionary principle, or precautionary approach, is now widely accepted in environmental law and policy at international and, increasingly, national level. However, the principle remains highly controversial, its meaning contested, its acceptance and implementation inconsistent across sectors and contexts and its impacts unclear. This paper aims to inform and assist IUCN and its members in developing greater shared understanding of the meaning and implementation of the principle in the context of biodiversity conservation and natural resource management, respecting priorities of both conservation and sustainable development. It examines the meaning of the precautionary principle and its incorporation into biodiversity and resource management law and policy, and discusses a series of issues raised by its implementation in this sector for biodiversity conservation and for livelihoods and poverty alleviation.

The Making of Environmental Law

Abstract: The unprecedented expansion in environmental regulation over the past thirty years at all levels of government signifies a transformation of our nation's laws that is both palpable and encouraging. Environmental laws now affect almost everything we do, from the cars we drive and the places we live to the air we breathe and the water we drink. But while enormous strides have been made since the 1970s, gaps in the coverage, implementation, and enforcement of the existing laws still leave much work to be done. In "The Making of Environmental Law," Richard J. Lazarus offers a new interpretation of the past three decades of this area of the law, examining the legal, political, cultural, and scientific factors that have shaped and sometimes hindered the creation of pollution controls and natural resource management laws. He argues that in the future, environmental law must forge a more nuanced understanding of the uncertainties and trade-offs, as well as the better-organized political opposition that currently dominates the federal government. Lazarus is especially well equipped to tell this story, given his active involvement in many of the most significant moments in the history of environmental law as a litigator for the Justice Department's Environment and Natural Resources Division, an assistant to the Solicitor General, and a member of advisory boards of the U.S. Environmental Protection Agency, the World Wildlife Fund, and the Environmental Defense Fund. Ranging widely in his analysis, Lazarus not only explains why modern environmental law emerged when it did and how it has evolved, but also points to the ambiguities in our current situation. As the field of environmental law "grays" with middle age, Lazarus's discussions of its history, the lessons learned from past legal reforms, and the challenges facing future lawmakers are both timely and invigorating."

Sovereignty Bounded: Public Trusteeship for Common Pool Resources?

Abstract: In spite of early hopes for a “fading out” of sovereignty in the face of global environmental challenges, recent codifications of international law have confirmed the creeping national enclosure of what were once considered common assets—e.g., exclusive economic zones under the 1982 Law of the Sea Convention, or access to genetic resources from the 1983 International Undertaking via the 1992 Biodiversity Convention to the 2001 Plant Gene Treaty. Yet, because of their explicit limitation and qualification by “common interest” obligations, these expanded sovereign rights of nation states must be considered fiduciary rather than proprietary. Hence, the emerging legal regime is one of international public trusteeship (sometimes referred to as guardianship or stewardship) over a widening range of environmental resources. The article traces the evolution of the trusteeship concept in modern environmental law and its ramifications for international law and governance, as reflected in current proposals suggesting...

Livelihoods, vulnerability and adaptation to climate change in the Morogoro region, Tanzania

Abstract: I gratefully acknowledge the support of the UK Economic and Social Research Council (ESRC) The paper also draws from a Strategic Assessment of Equity and Justice in Adaptation to Climate Change undertaken by the Foundation for International Environmental Law and Development (FIELD), the International Institute for Environment and Development (IIED), the Centre for Social and Economic Research on the Global Environment (CSERGE), and the Tyndall Centre for Climate Change Research

Emerging Forces in Environmental Governance

Abstract: This book addresses the various new channels of multilateral environmental governance that have appeared within an increasingly globalised international system. While states ultimately continue to make and enforce international law, they are increasingly dependent upon multilateral institutions, organised science, NGOs and social movements, and business and industry for formulating their views and for conducting policy. This volume focuses on clarifying the key actors and the governance functions they perform in addressing environmental threats.

Environmental Management and Development

Abstract: The environment and its management has been, and continues to be a very topical issue. Existing environment and development texts place emphasis is on listing problems, making warnings and voicing advocacy, but by focusing on environmental management, this informative book offers a very different perspective. Moving on from the usual much-discussed viewpoints, Barrow looks towards practical management and problem-solving techniques. He clarifies the definition, nature and role of environmental management in development and developing countries, beginning with an introduction to the key terms, issues and tools of environmental management, which are linked and developed in later chapters, and concluding by discussing who pays for environmental management and its future in developing countries. Written by an experienced and well-known author, this clear, user-friendly book, ideal for students of resource management, geography and development studies, makes excellent use of chapter summaries, boxed case studies, annotated further readings and websites, discussion questions and illustrations.

Environment: The Science behind the Stories

Abstract: I. FOUNDATIONS OF ENVIRONMENTAL SCIENCE 1. Science and Sustainability:An Introduction to Environmental Science 2. Earth's Physical Systems: Matter, Energy, and Geology 3. Evolution, Biodiversity, and Population Ecology 4. Species Interactions and Community Ecology 5. Environmental Systems and Ecosystem Ecology 6. Environmental Ethics and Economics: Values and Choices II. ENVIRONMENTAL ISSUES AND THE SEARCH FOR SOLUTIONS 7. Human Population 8. Soil and Agriculture 9. Agriculture, Biotechnology, and the Future of Food 10. Biodiversity and Conservation Biology 11. Forests, Their Management, and Parks and Protected Areas 12. The Urban Environment: Creating Livable and Sustainable Cities 13. Environmental Health and Toxicology 14. Freshwater Systems and Resources 15. Marine and Coastal Systems and Resources 16. Atmospheric Science and Air Pollution 17. Global Climate Change 18. Fossil Fuels, Their Impacts, and Energy Conservation 19. Conventional Energy Alternatives 20. New Renewable Energy Alternatives 21. Managing Our Waste 22. Sustainable Solutions

Trade, Environmental Regulations and the World Trade Organization: New Empirical Evidence

Abstract: The paper empirically explores the linkages between environmental regulations and international trade flows. So far, empirical studies either have failed to find any close statistical relationship or have delivered questionable results due to data limitations. Using a comprehensive new database for environmental regulations across countries, a thorough empirical investigation of that linkage for 119 countries and five high-polluting industries is performed. No evidence is found to support the pollution hypothesis that industries facing above-average abatement costs with environmental regulations would prefer pollution havens and relocate their activities. The exception is iron and steel products, where a negative and statistically significant link is established, implying that higher compliance with international treaties and conventions and more stringent regulations are associated with reduced net exports. High-income countries, where environmental regulations are usually more stringent in comparison to middle or low income countries, have experienced a considerable decline in the export-import ratio of iron and steel products since the late 1970s. There is no clear evidence that national governments choose sub-optimal policies that result in insufficient regulations, so the case for environmental standards within the WTO framework is relatively weak.

Environmental Law and Policy

Abstract: The Regulatory Policy Program at the Center for Business and Government provides an environment in which to develop and test leading ideas on regulation and regulatory institutions. RPP's research aims to improve the global society and economy by understanding the impacts of regulation and creating better decisions about the design and implementation of regulatory strategies around the world. RPP's efforts are organized around the following three core areas: regulation, markets, and deregulation; regulatory instruments; and regulatory institutions and policymaking. ABSTRACT This chapter provides an economic perspective of environmental law and policy with regard to both normative and positive dimensions. It begins with an examination of the central problem in environmental regulation: the tendency of pollution generators in an unconstrained market economy to externalize some of the costs of their production, leading to an inefficiently large amount of pollution. We examine the ends of environmental policy, that is, the setting of goals and targets, beginning with normative issues, notably the Kaldor-Hicks criterion and the related method of assessment known as benefit-cost analysis. We examine this analytical method in detail, including its theoretical foundations and empirical methods of estimation of compliance costs and environmental benefits. We include a review of critiques of benefit-cost analysis, briefly examine alternative approaches to analyzing the goals of environmental policies, and survey the efforts of the Federal governmental to employ these analytical methods. The chapter also examines in detail the means of environmental policy, that is, the choice of specific policy instruments, beginning with an examination of potential criteria for assessing alternative instruments, with particular focus on cost-effectiveness. The theoretical foundations and experiential highlights of individual instruments are reviewed, including conventional, command-and-control mechanisms, economic incentive or market-based instruments, and liability rules. In the economic-incentive category, we consider pollution charges, tradeable permit systems, market friction reductions, and government subsidy reductions. Three cross-cutting issues receive attention: implications of uncertainty for instrument choice; effects of instrument choice on technological change; and distributional considerations. We identify a set of normative lessons in regard to design, implementation, and the identification of new applications, and we examine positive issues, including three phenomena: the historical dominance of command-and-control; the prevalence in new proposals of tradeable permits allocated without charge; and the relatively recent increase in attention given to market-based instruments. Finally, the chapter turns to the question of how environmental responsibility is and should be allocated among the various levels of government. We provide …

Towards a liability and redress system under the cartagena protocol on biosafety a review of the Kenya national legal system

Abstract: Introduction The Cartagena Protocol on Biosafety is a Protocol to the Convention on Biological Diversity. The latter was concluded in 1992 and came into force in 1993. It had already become apparent during the Convention's negotiations that further work was required towards a Biosafety Protocol. The Protocol was concluded in January 2000 and opened for signature at the fifth meeting of the Conference of Parties to the Convention on Biological Diversity held in Nairobi in May 2000. It came into force on September 11,2003, ninety days after ratification by fifty states parties as provided for in Article 37 of the Protocol.

International Trade and Environmental Governance: Relating Rules (and Standards) in the EU and the WTO

Abstract: This article examines the relationship between 'negative' (market) and 'positive' (policy) integration in the European Union and the World Trade Organization. It does so in relation to trade in goods, and takes as its example the area of environmental law. It argues that the strong role accorded to instruments of policy coordination in the EU (through the adoption of European standards and harmonizing legislation) is tied to the fact that such measures are contestable, so that authority and contestability go hand in hand. Contestation proceeds by way of administrative and judicial channels, and serves to instil a measure of accountability and to protect diversity. In the WTO, by contrast, the Appellate Body has shown a marked reluctance to accord authority to international standards and — important developments in Shrimp/Turtle notwithstanding — deep uncertainty persists as to the relationship between the free movement norms and multilateral environmental agreements. This paper argues that in defining the role of these instruments, the Appellate Body would do well to regard their authority as contingent. In the WTO — as in the EU — contestability could contribute to ensuring forms of transnational governance which are more accountable and appropriately respectful of diversity. To the extent that contestability would seem to imply a quasi-review function for the Appellate Body, some might fear that this suggestion would feed the 'constitutionalization' of the WTO, by placing it in a position of supremacy vis-a-vis other regimes. This paper argues that this fear would be misplaced.

Management of Environmental Pollution in Ibadan, An African City: The Challenges of Health Hazard Facing Government and The People

Abstract: This paper examined management of environmental pollution in Ibadan, the largest City in West Africa. Environmental pollution which includes gaseous, liquid and solid wastes have become a perennial...

Commons ignorance: the failure of environmental law to produce needed information on health and the environment.

Abstract: One of the most significant problems facing environmental law is the dearth of scientific information available to assess the impact of industrial activities on public health and the environment. After documenting the significant gaps in existing information, this Article argues that existing laws both exacerbate and perpetuate this problem. By failing to require actors to assess the potential harm from their activities, and by penalizing them with additional regulation when they do, existing laws fail to counteract actors' natural inclination to remain silent about the harms that they might be causing. Both theory and practice confirm that when the stakes are high, actors not only will resist producing potentially incriminating information but will invest in discrediting public research that suggests their activities are harmful. The Article concludes with specific recommendations about how these perverse incentives for ignorance can be reversed.

International Environmental Law and Policy for the 21st Century

Abstract: International Environmental Law & Policy for the 21st Century, 2nd Revised Edition, provides a fresh, comprehensive, and in-depth analysis of the immense and challenging field of IEL, perfect for the needs of students, scholars, professionals, NGOs, and lay readers alike.

Trade Liberalization, Food Security and the Environment: The Neoliberal Threat to Sustainable Rural Development

Abstract: C. The Green Revolution: Supply-Side Approach to Food Security 440 1. The Green Revolution’s Socioeconomic Impact 441 2. The Green Revolution’s Environmental and Food Security Impact 446 3. Summary and Conclusion: The Green Revolution and Industrial Agriculture 450

The Judicial Resolution of Conflicts Between Trade and the Environment

Abstract: The 1991 Tuna-Dolphin decision by a GATT arbitral panel implied that a variety of domestic environmental laws and international environmental agreements conflicted with international trade law, and that the conflicts would be resolved by trade tribunals biased against environmental concerns. In response, critics proposed moderate reforms to the international trade regime to address environmental concerns. Rather than incorporate the proposals into the World Trade Organization agreements and the North American Free Trade Agreement, however, governments left the conflicts to the trade tribunals that had created them, and at the same time strengthened the tribunals' independence from political control. Environmental critics predicted disaster. Surprisingly, however, the most important of these tribunals - the WTO Appellate Body - has done what governments failed to do: it has reached a comprehensive resolution of trade/environment legal conflicts that incorporates most of the critics' proposed reforms. This Article argues that the Appellate Body has greened trade jurisprudence not to appease its environmental critics, but to attract political support from governments. While its approach is legally flawed, it is politically defensible and successful in practice; although governments continue to debate trade/environment issues, they have begun to accept, or at least acquiesce in, almost all of the elements of the judicial resolution. As a result, critics and governments may find their way clear to focus their attention on the most fundamental issue underlying the trade/environment debate: how best to reconcile economic growth and environmental protection.

Water Quality Today - Has the Clean Water Act Been a Success?

Abstract: The Clean Water Act is at a critical juncture today. New policies, new approaches may soon be adopted before we have had an adequate opportunity to assess how well the old techniques have worked. We need to determine as accurately as possible what has worked and what has failed as we approach the question of change. Although the Act stands in need of revision to fill various gaps in coverage, the aspects of the Act that are prime candidates for reform are not always the ones the critics target. The CWA, in fact, has been remarkably successful in doing what it was designed to do. The application of technology-based effluent limitations through the permit system has proven to have been a wise approach for the initial control of point sources. Together with the funding of thousands of municipal wastewater treatment facilities, the technology-based approach has produced remarkable reductions in both municipal and industrial pollution. The CWA has proven successful in other ways as well. The rate at which wetlands are lost has declined some 90 percent since the early 1970s, and the amount of oil spilled annually into our waters has fallen to one-tenth of the level that prevailed during the 1970s. All of this was done without causing harm to the economy or to our international competitiveness. In fact, the cost of complying with the Act has been lower than the EPA anticipated, and eleven of our largest trading partners actually spend more per capita on controlling water pollution than we do. The economic benefits produced by the Act, moreover, appear greater than many had assumed. The Act and its success stand as a testament to the vision, insight, and courage of its drafters. Unfortunately, but not suprisingly given the limits of human and political capacity, neither the design nor its implementation have been perfect.

Significant developments in sustainable development law and governance: A proposal

Abstract: This article develops a practical proposal for progress on sustainable development law. It examines the prospects for an international sustainable development law to provide a framework for more effective, coherent governance. Sustainable development law is briefly defined and an analytical framework is provided. Different degrees of integration between economic, social and environmental law are described. Certain principles of international law related to sustainable development are also highlighted. It is argued that these principles may serve to guide law-makers and jurists where social, economic and environmental law and policy conflict or overlap. Continuing, underlying questions of sustainable development governance are addressed and its global frameworks analysed. The article also focuses on the 2002 World Summit on Sustainable Development, held in Johannesburg in August-September 2002, and its specific mandate for the United Nations Commission on Sustainable Development (UNCSD) to take related legal developments into account. The article advances a proposal: that governments, economic, social and environmental intergovernmental organizations and other actors establish a ‘network of inquiry’ with members from relevant groups, including legal and academic organizations, and other expert groups, in order to follow, research, analyse and debate legal developments in a balanced way.

The Evolution of Water Pollution Control in the United States - State, Local, and Federal Efforts, 1789-1972: Part I

Abstract: This is the first article in a two-part series that explores the trends and developments that eventually led Congress to enact one of the most complex and significant pieces of legislation in history, the Clean Water Act. It examines the way in which water pollution evolved from a relatively simple local issue in the early years of the Republic into a complex state and regional problem by 1920. The article then examines the development of state regulation from 1869 to 1972 - an account that covers the evolution of state agencies and regulatory innovations such as water quality standards and uniform effluent limitations. The new regulatory devices, however, failed to fulfill their promise. Faced with powerful, concentrated opposition from industry and many municipalities, the states were reluctant to apply them comprehensively and were generally unwilling to take vigorous enforcement action, preferring instead informal cooperation and voluntary compliance. By the 1960s, the public's tolerance for this kind of incremental and largely ineffective approach was wearing thin. The second article, which was published at 22 Stanford Environmental Law Journal 215 (2003), explores the story of federal action between 1879 and 1972 and concludes with an extensive look at the legislative history of the 1972 Clean Water Act.

Ideas, Incentives, Gifts, and Governance: Toward Conservation Stewardship of Private Land, in Cultural and Psychological Perspective

Abstract: Conserving ecological resources on private lands appears to require both (a) supportive landowners, and (b) regulatory coercion, notwithstanding, (c) that rural landowners comprise the most consistently antienvironmental demographic group in America. Neither policymakers nor legal scholars have come up with satisfying responses to this predicament. Drawing upon sociological and psychological studies of attitudes toward land, community, and environment, and on the social psychology of group conflict, social influence, and attitudinal change, this article explicates the predicament and proposes a way out of it. The solution carries us beyond legal scholars' traditional focus on public law and administration to reach, on one side, mainline environmentalism's self-understanding and community involvements, and, on the other, new institutions for governance by landowners. (Economic incentives and gift-giving are also entailed.) The main institutional innovation is the landowner-initiated, landowner-controlled "special nature" district, with limited powers of regulation, assessment, and property acquisition. Special nature districts would act on local interests in conservation, but would provide ecological amenities sought nationally via collective contracting with public conservation agencies. The academic upshot is a substantial research agenda for scholars of property and environmental law. The special nature district will: (1) put to the test the burgeoning law and norms literature; (2) challenge scholars to invent models for jurisdictions fluid in their geography and competence; (3) focus attention on some heretofore peripheral issues of constitutional law; and (4) motivate empirical study of little known irrigation, drainage, grazing, zoning, and pest-control districts.

Shifting Sands: the Limits of Science in Setting Risk Standards

Abstract: Regulators need to rely on science to understand problems and predict the consequences of regulatory actions, but over reliance on science can actually contribute to, or at least deflect attention from, incoherent policymaking. In this article, we explore the problems with using science to justify policy decisions by analyzing the Environmental Protection Agency's recently revised air quality standards for ground-level ozone and particulate matter, some of the most significant regulations ever issued. In revising these standards, EPA mistakenly invoked science as the exclusive basis for its decisions and deflected attention from a remarkable series of inconsistencies. For example, even though EPA claimed to base its standards on a singular concern for public health, it set its standards at levels that will still lead to hundreds, if not thousands, of deaths each year. In other ways, EPA's positions were like shifting sands, changing at points that apparently were expedient for the agency. Such an outcome should not be unexpected when an agency misuses science as a policy rationale, but it also need not be inevitable if agencies accept the limits of science in justifying risk standards. We conclude by offering a set of principles to give direction to standard setting by EPA and other agencies. In the case of EPA's air quality program, Congress will likely need to amend the Clean Air Act to enable EPA to break free of the conceptual incoherence in which it now finds itself mired. Decision makers in any setting, though, can avoid the problem of shifting sands by carefully understanding what science can and cannot do.

Environmental justice in SEPA's environmental protection activities: a report for the Scottish Environment Protection Agency

Abstract: The purpose of this research project is to explore the extent to which SEPA can take account of environmental justice within its current legislative framework when making licensing decisions or carrying out enforcement activity. As a contextual background to this the project reviews current environmental justice developments in Scotland and selected international developments to assess how these developments will affect the environmental justice agenda in Scotland as well as SEPA's environment protection activities.

From Smokestack to SUV: The Individual as Regulated Entity in the New Era of Environmental Law

Abstract: A debate between advocates of command and control regulation and advocates of economic incentives has dominated environmental legal scholarship over the last three decades. Both sides in the debate implicitly embrace the premise that regulatory measures should be directed almost exclusively at large industrial polluters. This Article asserts that for many pollutants the premise is no longer supportable, and that much of the focus of regulation in the future should turn to individuals and households. Examining a wide range of empirical data, the Article presents the first profile of individual behavior as a source of pollution. The profile demonstrates that individuals constitute a surprisingly large source and that the resulting environmental harms may be substantial. Reconceptualizing individuals as targets of regulatory action will require corresponding changes in regulatory theories and methods, and agency management. The Article suggests that although traditional command and control and economic measures have limited prospects for changing individual behavior, innovative uses of informational regulation and norm management, both alone and in combination with the traditional measures, are potentially powerful tools. The Article also proposes agency management reforms, including development of agency expertise on the social influences of agency actions and a reexamination of the administrative procedures needed for informational regulatory measures. The new view of the individual as polluter presented in this Article thus not only challenges a fundamental premise of the environmental regulatory debate but offers an agenda for the evolution of the regulatory state. I. INTRODUCTION A cardinal principle in dealing with every type of legal arrangement is to keep steadily in view the kinds of people to whom the directions of the arrangement in question are initially addressed-who the people are, in other words, who are expected to act or refrain from acting in accordance with the arrangement if it works successfully, and under what circumstances they are expected to act.1 If asked to envision a polluter, most of us would describe a tall stack from a large industrial facility billowing smoke or a pipe releasing foaming liquid into a stream. The environmental laws and academic commentary of the last thirty years reflect this common conception. With few exceptions, the environmental laws enacted since the 1970s have directed command and control requirements at large industrial sources of pollution. Similarly, in law reviews, books and congressional hearings, advocates of command and control regulation have battled with economic incentive enthusiasts over the optimal measures for regulating large industrial sources.2 The participants in this debate differ on the effectiveness of various regulatory instruments and the need for regulatory reform, but they share an important, although often unspoken, premise: that the principal sources of pollution are large industrial facilities and the principal victims are individuals.3 This Article suggests that the reality today is quite different. We are polluters. Each of us. We pollute when we drive our cars, fertilize and mow our yards, pour household chemicals on the ground or down the drain, and engage in myriad other common activities. Although each activity contributes minute amounts of pollutants, when aggregated across millions of individuals, the total amounts are stunning. Industrial sources continue to be major sources of pollution, and other important pollution sources exist, but individuals are now the largest remaining source of many pollutants. The time has come to focus attention in their direction. Treating individuals as regulated entities, however, will require fundamental changes in the theories and methods of environmental law. Moreover, the need to focus on individual behavior exists across a wide range of health, safety and other areas, and will require substantial modifications in many aspects of the post-New Deal regulatory state. …

The Economics of Endangered Species: Why Less is More in the Economic Analysis of Critical Habitat Designations

Abstract: The Endangered Species Act (ESA) is the paradigmatic "absolutist" statute of American environmental law. One provision, however, allows economic considerations to play a role in a particular determination - the designation of an area as "critical habitat" for an endangered species. Though largely ignored for many years, this provision has been recently reinvigorated by a landmark decision from the Tenth Circuit, New Mexico Cattle Growers Association v. U. S. Fish and Wildlife Service, 248 F.3d 1277 (10th Cir. 2001). This article examines recent economic analyses performed by the U.S. Fish and Wildlife Service in the wake of this decision, observing an emerging trend toward increased quantification, formalization, and complexity. This reflects a more general trend toward an increasing faith in cost-benefit analysis in both government and academia. But the ascendancy of cost-benefit analysis has distracted our attention from other ways of taking economic costs into account in environmental standard setting. In fact, throughout the 1970s, Congress generally eschewed the use of formal economic cost-benefit analysis and opted instead for "short-cut" standards that provide for some consideration of the costs of regulation - through, for example, a rough apples-to-oranges comparison of costs and benefits - without requiring the substantial investment of resources necessary for a fully quantified analysis. Considering this provision of the ESA against the backdrop of this rich tradition of "short-cut" standards in American environmental law, this article concludes that application of formal economic cost-benefit analysis to critical habitat designations is inconsistent with congressional intent and, moreover, simply a bad idea. It illogically forces incommensurable values into a common metric; it produces hopelessly indeterminate results; it clouds transparency and undermines public participation by giving controversial and uncertain predictions a false patina of scientific accuracy and objectivity; and it delivers all this regulatory imperfection for a price that is outrageously high, draining needed resources from the real business of saving species.