Showing papers on "Environmental law published in 2007"

The New Wal-Mart Effect: The Role of Private Contracting in Global Governance

Abstract: This Article argues that networks of private contracts serve a public regulatory function in the global environmental arena. These networks fill the regulatory gaps created when global trade increases the exploitation of global commons resources and shifts production to exporting countries with lax environmental standards. As critics of trade liberalization have noted, public responses often are inadequate to address the attendant environmental harms. This Article uses empirical data to examine how private contracting regulates firm behavior, focusing on supply-chain contracting. The Article shows that more than half of the largest firms in eight retail and industrial sectors impose environmental requirements on their domestic and foreign suppliers. This contracting, which the Article terms "the new Wal-Mart effect," reduces externalities by translating a complex mix of social, economic, and legal incentives for environmental protection into private contractual requirements. After demonstrating that private environmental contracting is an important part of global environmental governance, the Article examines the efficacy and accountability of this regime. The Article concludes that the private contracting regime often is preferable to the alternatives: lax national and international regulation of firms in many exporting countries, and markets that lack private environmental contracting. Finding much promise in the private contracting regime, the Article concludes by suggesting new strategies for governments, nongovernmental organizations, and firms.

The Law and Policy of Ecosystem Services

Abstract: By J.B. Ruhl, Steven E. Kraft, and Christopher L. Lant Washington, DC:Island Press, 2007. 350 pp. ISBN: 978-1-55963-094-8, $70 Environmental law and public policy arise out of traditional conflicts between different parties interested in the use of air, light, water, and the peaceful surround for competing purposes. For example, the noxious smell of your hog waste ponds ruins the fresh air around my home. Or the shopping center you are planning to build on the banks of Community Creek will in fact cover and destroy 30 acres of wetland just upstream of our downtown. Are the interests to be weighed in such disputes merely private, or must we also recognize—and regulate to protect—the community’s interest in the natural ecosystem services to clean air and clean water, possibly lost as a consequence? The law of nuisance has long provided remedy for neighbors who are caused to suffer noxious effluent arising from nearby agricultural or industrial uses. And since the 1970s, federal and state clean water and clean air legislation, and indeed the entire U.S. Environmental Protection Agency apparatus whereby government permits and regulates pollution, have arisen from the idea that the economic engine of this country, running on a seemingly limitless reservoir of natural resources, must now be regulated to limit, if not prohibit, the production of goods and services by methods that cause irreversible harm to air and water resources. The idea behind The Law and Policy of Ecosystem Services is that courts, legislatures, regulators, and other policy makers have traditionally been without the tools to value, or otherwise have taken too little account of the value of, ecosystem services as environmental policy is developed. And, they argue, as a result, we risk this “tragedy of ecosystem services”: By the time scarcity alone focuses economic investment on ecosystem services, we may not have sufficient natural capital resources available in the quantities and quality demanded, and we may not be able to create enough either. The reason for the decline of ecosystem services will be a continued degradation of ecosystem functions that support natural capital resources. The degradation that ecosystem functions suffer is not likely to be fully reversible. Indeed, it is more likely that the decline of ecosystems by that point will in many cases have become irreversible. The authors assert, therefore, that refocusing our public law and policy to value, account for, and prevent erosion and loss of vital ecosystem services, rather than weighing, minimizing, or remedying functional losses primarily to private interests, is essential if we are to recognize and protect the nature, extent, and natural importance of these resources before their loss becomes irreversible. The authors demonstrate persuasively that natural capital and ecosystem services are not adequately recognized or valued under present law and policy, and they show how a new polity of law and regulation, exceeding that of traditional private economic interests, might be achieved. I admit that many more expert readers will find the detailed history and analysis of the geography and economics of ecological services more familiar and useful to their understanding. My own experience as an environmental lawyer who has traditionally represented public and private parties injured by air or water pollution, as well as public agencies with water and air pollution permits, leads me to endorse this book’s ideas and to suggest that it should be required reading for the whole range of players—from legislators and policy makers to land trust administrators and riverkeepers—whose work revolves around the natural tensions between conservation of public, natural capital and the extension of private capital. Environmental litigators also will find in this work a source of useful advantages in perspective and tactic when battling traditional opponents who argue that their noxious byproducts are merely “the smell of money,” as if natural ecosystem capital and services should always bear private capital’s avoided costs of proper waste handling. Currently, elected officials who appoint the regulators and formulate environmental policy at the state and federal levels show little inclination to shift their attention to protect natural ecosystem capital, especially at the expense of discouraging unbridled growth, even though the work of many of their employees and subordinates suggests their ripening attention and appreciation for the importance of acknowledging, valuing, and protecting ecosystem services. The ideas expressed in this book underscore the importance of that dutiful lot, at work to protect our natural environment, and suggest important directions and tools, useful if we are to appreciate, conserve, and avoid long-term, tragic injury to the natural capital and ecosystem services that sustain us all.

The Environmental Consequences of War: Legal, Economic, and Scientific Perspectives

Abstract: List of illustrations List of tables List of contributors Acknowledgements Foreword Klaus Toepfer Introduction Jay E. Austin and Carl E. Bruch Part I. General Principles: Introduction Carl E. Bruch 1. The environment in wartime: an overview Christopher D. Stone Part II. The Legal Framework Section 1. Existing and Emerging Wartime Standards: Introduction Carl E. Bruch 2. The law of war and environmental damage Adam Roberts 3. War and the environment: fault lines in the prescriptive landscape Michael N. Schmitt 4. The inadequacy of the existing legal approach to environmental protection in wartime Richard Falk 5. United States Navy development of operational-environmental doctrine Captain John P. Quinn, Captain Richard T. Evans and Lt. Commander Michael J. Boock 6. In furtherance of environmental guidelines for armed forces during peace and war Arthur H. Westing Section 2. Lessons from Other Legal Regimes: Introduction Jay E. Austin 7. Peacetime environmental law as a basis of state responsibility for environmental damage caused by war Silja Voneky 8. Environmental damages under the Law of the Sea Convention Thomas A. Mensah 9. The place of the environment in international tribunals David D. Caron 10. Civil liability for war-caused environmental damage: models from United States law Jeffrey G. Miller Part III. Assessing the Impacts - Scientific Methods and Issues Section 1. Ecological and Natural Resource Impacts: Introduction Jessica D. Jacoby 11. Scientific assessment of the long-term environmental consequences of war Asit K. Biswas 12. The Gulf War impact on the terrestrial environment of Kuwait: an overview Samira A. S. Omar, Ernest Briskey, Raafat Misak and Adel A. S. O. Asem 13. War-related damages to the marine environment in the ROPME Sea Area Mahmood Y. Abdulraheem 14. War and biodiversity: an assessment of impacts Jeffrey A. McNeely Section 2. Public Health Impacts: Introduction Jessica D. Jacoby 15. Tracking the four horsemen: the public health approach to the impact of war and war-induced environmental destruction in the twentieth century Jennifer Leaning 16. Defoliants: the long-term health implications Alastair W. M. Hay 17. The impact of military preparedness and militarism on health and the environment Victor W. Sidel 18. War and infectious diseases: international law and the public health consequences of armed conflict David P. Fidler Part IV. Valuing the Impacts - Economic Methods and Issues: Introduction Eric Feldman Section 1. Ecological and Natural Resource Damages: 19. Restoration-based approaches to compensation for natural resource damages: moving towards convergence in US and international law Carol A. Jones Section 2. Public Health Damages: 20. Valuing public health damages arising from war Mark Dickie and Shelby Gerking 21. Valuing the health consequences of war W. Kip Viscusi Part V. Prospects for the Future: Introduction Jay E. Austin 22. Protecting specially important areas during international armed conflict: a critique of the IUCN Draft Convention on the Prohibition of Hostile Military Activities in Protected Areas Richard G. Tarasofsky 23. The Chemical Weapons Convention: a verification and enforcement model for determining legal responsibility for environmental harm caused by war Barry Kellman 24. International legal mechanisms for determining liability for environmental damage under international humanitarian law Jean-Marie Henckaerts 25. Waging war against the world: the need to move from war crimes to environmental crimes Mark A. Drumbl Epilogue Carl E. Bruch and Jay E. Austin Index.

Guide to International Environmental Law

Abstract: Guide to International Environmental Law addresses why and how the international system elaborates environmental obligations and monitors compliance with them.

Wind Power in Europe: Politics, Business and Society

Abstract: Relevant Legal & Academic Areas: Wind Energy, Environmental Law, Technology, and Property Law. Summary: This book provides an overview of the policy and legal aspects of wind power in Europe, through the illustration of case studies in Denmark, Germany, Spain, United Kingdom and France. About the Author: Joseph Szarka’s research and teaching concentrates on political renewal in Western democracies, with a focus on economic and environmental policy making. He also is a reader in European Studies at the University of Bath, UK. Chapter 1 – Contextualizing the Wind Power Debate • Chapter Summary: This chapter introduces the wind power debate, and sets the framework for the book, which relies on case studies from Denmark, Germany, Spain, the United Kingdom and France. • Chapter Review: Following the oil crisis of the 1970s and 1980s, awareness arose regarding the risk of reliance on imported energy. 2 Countries began exploring their options with a focus on alternative energy. Wind energy emerged as a positive source of alternative energy in the electricity field. Most countries followed the three-bladed Danish concept of wind turbines. However, debates arose over the use of wind as a sustainable energy alternative in place of fossil fuels such as oil and coal. Throughout the

Economic Dependency, Repression, and Deforestation: A Quantitative, Cross‐National Analysis*

Abstract: This research builds upon previous cross-national studies of deforestation. In doing so, I examine how various world-systems indicators interact with political conditions within a nation. I test the hypothesis that repressive nations create a “good business climate” for multinational capital, which, in turn, affects deforestation. This “good business climate” consists of economic incentives (e.g., tax holidays), regulatory concessions (e.g., environmental law exemptions), and imposed political stability (e.g., outlawing strikes, protests, and unions). The results indicate that export partner concentration, commodity concentration, multinational corporate penetration, and International Monetary Fund conditionality increase deforestation more at higher rather than at lower levels of repression. I also confirm previous findings that gross domestic product per capita decreases deforestation, indicating that richer nations are able to externalize their environmental costs onto poorer nations. I conclude with the theoretical implications of this research, policy implications, and possible directions for future research.

Designing the United Nations Environment Programme: a story of compromise and confrontation

Abstract: The role of the United Nations in global environmental governance was determined in 1972 when a new international body for the global environment was created as a programme within the United Nations rather than as an autonomous specialized agency. A set of political dynamics between developed and developing countries led to the decisions on the functions, form, financing, and location of the new intergovernmental organization—the United Nations Environment Programme. This article traces the his- torical roots of these choices and exposes the motivations behind them.

Prevention and Remedying of Environmental Damage

Abstract: The German Act on prevention and remedying of environmental damage of May 10, 2007 (Gesetz uber die Vermeidung und Sanierung von Umweltschaden vom 10. Mai 2007, BGBl. I 19, 666, Umweltschadensgesetz-USchadG) implemented the Directive 2004/35/CE of the European Parliament and of the Council of 21 April on environmental liability with regard to the prevention and remedying of environmental damage (OJ L 143/56, April 30, 2004). In Spain and as to July 2007, an implementation bill is being discussed in the Parliament (Bill 121/00130, OJ of the Parliament 130, March 23, 2007). This paper summarizes, comments and contrasts the Directive, the German Act and the Spanish Bill.

Using Mandates and Incentives to Promote Sustainable Construction and Green Building Projects in the Private Sector: A Call for More State Land Use Policy Initiatives

Abstract: Earlier this year, the United Nations released Buildings and Climate Change, which reports that 30-40% of all primary energy is used in buildings. A host of other authorities have joined the U.N. in calling for green building standards, not only to conserve energy, but also to achieve more socially responsible real estate development. A discernable movement is now afoot for government to play a significant role in promoting green building projects. But there is not yet agreement on what that role should be. In particular, green building standards have not yet found their place within the realm of land use regulation. In the United States, land use controls are normally adopted, implemented, and enforced at the local level, where they are subject to local political influences that make it unlikely that municipalities alone will bring about the required green building revolution. And prospects for effective green building initiatives resulting from international or national sustainable development policies are dim due to the resurgent private property rights movement in this country. While the principles at stake are considerable, we must not allow deep philosophical, normative, and political battles over the more controversial aspects of sustainable development theory to retard progress on this matter of critical global concern. This article argues that timely, meaningful movement toward sustainability in the U.S. building industry requires state-level legislation that promotes, and sometimes even mandates, green building standards at the regional and local levels.

Theory and Practice of Transboundary Environmental Impact Assessment

Abstract: Environmental Impact Assessment (EIA) is a well-established instrument of environmental law and policy that aims to ensure that potential adverse environmental effects of human activities are assessed before decisions on such activities are made. The instrument is increasingly being applied in respect of activities that may cause environmental effects across the borders of a state. This book offers an assessment of thirteen systems of Transboundary Environmental Impact Assessment (TEIA) that exist or are in development in different parts of the world. Although TEIA is generally associated with EIA between territorial states, this book takes a broader approach and is divided into three sub-parts: Transboundary EIA between states, EIA for activities in international and shared areas, and EIA required by international financial institutions. Knowledgeable experts (scholars and practitioners) provide an overview of the history, content, and practice of the individual systems and, based on these discussions, the state of the art concerning TEIA and possible future developments are discussed.

The Role of Law in Environmental Protection in China: Recent Developments

Abstract: Law is a weak tool for environmental protection in China. Nonetheless, citizens and lawyers are using the law in a variety of creative ways to press for compensation, cessation of environmental harms, and restoration of environmental degradation. This conference article examines the benefits and shortcomings of legal approaches to environmental protection in China.

The Law and Policy Beginnings of Ecosystem Services

Abstract: Over the past decade, there has been an explosion of interest in ecosystem services from scientists, economists, government officials, entrepreneurs, and the media. This article traces the development of the ecosystem services concept in law and policy. We prepared it in connection with a symposium held at Florida State University in April 2006. The presentations at the symposium, which then developed into the articles in a special issue of the Journal of Land Use and Environmental Law (volume 22, issue 2), approached the topic of ecosystem services and the law from two perspectives. One set of presentations focused on the law of specific natural resources, and the other set focused on different legal institutions as agents of integration of ecosystem services into law and policy. The resource presentations covered water and watershed resources, agricultural and rangeland resources, and coastal resources, while the institutional presentations addressed land use regulation, common law remedies, public law enforcement regimes, and second generation approaches in energy policy. This article provided the historical and conceptual anchor for the symposium.

Adaptive Federalism: The Case Against Reallocating Environmental Regulatory Authority

Abstract: A hallmark of environmental federalism is that neither the states nor the federal government limits themselves to what many legal scholars have deemed to be their appropriate domains. The federal government regulates local issues, such as remediation of contaminated industrial sites, while states and local governments develop policies on environmental issues of national or even international scale, such as global climate change. The current system of environmental federalism is thus a dynamic one of overlapping federal and state jurisdiction. It is increasingly threatened, however, by federal legislation and Supreme Court rulings that favor preemptive federal control. This Article advocates an adaptive model of environmental federalism that reinforces the existing dynamic system. Our approach rejects the dominant economic theory, which holds that regulatory authority should reside at the level of government that roughly "matches" the geographic scope of the subject environmental problem. We show that its one-sided focus on static optimization is ill-suited to the complexity and variability of environmental problems. Drawing on an emerging trend in legal scholarship that calls for a dynamic conception of federalism, our adaptive model recognizes the importance of sustaining both a diversity of regulatory options and the processes for winnowing and refining them. An adaptive framework would exploit local variability, as well as the unpredictability of nature itself, to make the federal system both highly adaptable and resilient to environmental change. We propose several doctrinal and legislative principles to enhance the dynamic attributes of environmental federalism. These prescriptions include adopting a judicial presumption, and a corresponding principle of legislative drafting, against federal preemption, as well as a more specific presumption against federal regulations that preclude states from establishing more stringent standards. We further advocate tempering uniform federal standards by allowing a small number of competing state standards.

Emerging Principles of International Environmental Law

Abstract: Emerging Principles of International Environmental Law is ideally suited for any law or environmental studies student, practitioner or law academic who is interested in the legal status of emerging principles in the field of international environmental law. Among its highlights, the text examines the interaction of principles/concepts such as sustainable development, the precautionary principle etc., with one another and how the present international environmental law regime has taken the vast disparity between developed and developing countries into account in designing innovative methods to accommodate this disparity. Following an introductory chapter on the development of international environmental law, the book explores five concepts/principles that have emerged in the recent years in this field and discusses their relationship to one another, particularly how they interact and contribute to the achievement of sustainable development: sustainable development, the precautionary principle, the environmental impact assessment process and participatory rights, the common but differentiated responsibility principle and the polluter pays principle. The final chapter evaluates the emergence of a distinct field of international law called 'International Sustainable Development Law' and discusses its future direction. While these principles or concepts have received much attention in previous literature, not much attention has been paid to their interaction with one another and how the present international environmental law regime has taken the vast disparity between developed and developing countries into account in designing innovative methods to accommodate this disparity. It is here the strength of the book lies. The book was written to provide a firm grasp of international environmental law issues and of international law in general. It is intended for the international market, for anybody who is interested in the future direction of international environmental law and of sustainable development. As such, it would be relevant not only to the law student and law academic, but also to international organizations such as UNEP, Commission on Sustainable Development, UNDP and the World Bank as well as for international and national civil society groups engaged in environmental issues and human rights issues. Published under the Transnational Publishers imprint.

The Precautionary Principle in EC health and Environmental Law: Sword or Shield for the Nordic Countries?

Abstract: Envisaging anticipatory preventive action in response to uncertainty, the precautionary principle represents an important milestone in risk reduction. The question is no longer merely how to prevent assessable risks, but rather how to anticipate risks pervaded by uncertainty. By leaving behind the realm of "sound science," precaution necessarily gives rise to conflict. As regards the status and the implementation of that principle, the aim of this article is to explore some of the key issues arising in environmental and food safety cases brought before the Tribunal of First Instance, the European Court of Justice and the EFTA Court.

The Aarhus Convention and Innovations in Compliance with Multilateral Environmental Agreements

Abstract: The Aarhus Convention is the first multinational environmental agreement that focuses exclusively on obligations of nations to their citizens and nongovernmental organizations (NGOs). The Aarhus Convention's compliance mechanism includes several significant features including: (1) the ability of nongovernmental organizations to nominate experts for possible election to the Compliance Committee; (2) the requirement that all Committee members be independent experts rather than representatives of state Parties to the Convention; and (3) the right of any member of the public and any NGO to file a communication with the Committee alleging a Party's noncompliance. In just two years of considering cases, the Aarhus compliance mechanism has already dealt with several significant issues in each of the three areas that the Aarhus Convention covers: access to information, public participation, and access to justice. The Compliance Committee and Meeting of the Parties have ruled that governments may not insist that people asking for environmental information provide their reason for seeking that information, and also that governments must provide clear guidance to public authorities on providing information to the public. Regarding public participation, the decisions spell out duties of providing adequate public notice, adequate procedures for written or oral comments, and careful consideration of comments that the public or NGOs may make. Complaints about lack of access to justice have also been resolved in decisions where Parties have been found in noncompliance with the Aarhus Convention because of failure to provide legal standing to NGOs and because of slow judicial review procedures. The article offers some observations about the tools used by the Committee in its first cases, the characteristics of NGOs that have filed communications with the Committee, the attitudes of governments toward the compliance process, and possible reasons why most of the cases brought to the Committee so far have been from Central and Eastern Europe, Caucasus, and Central Asia. The independence, transparency, and NGO involvement in the Convention's novel compliance mechanism represent an ambitious effort to bring democracy and participation to the very heart of compliance itself. Whether this will be successful and whether it will be emulated in the compliance mechanisms of other conventions will depend on the work of the Committee itself, the actions of Meetings of the Parties, and the amount of vigilance shown by citizens in demanding compliance with the Aarhus Convention.

Making central-local relations work: Comparing America and China environmental governance systems

Abstract: The challenge of making central requirements work at local levels is a common problem for environmental governance throughout the world. Countries can learn from one another's approaches, but must understand the local con- text in which they are set. This paper compares the features of the China and US environmental governance systems that need be understood by those working between the systems. Key features include: (1) common values which shape the environmental governance choices in both countries, but which may have different practical meanings in each country; (2) America's common law-based environmental governance system, and China's civil law system, which involves plan(s) as well as law; (3) America's Federal central-local system, and China's unitary central local system. This paper con- cludes by suggesting areas in which further comparative understanding may be of value, including: (1) better under- standing of the role of plan and law in China's governance system; (2) comparing the American Federal-state agreement system for implementation of environmental law with the China central-local system of target responsibility agreements for plan implementation; (3) improving understanding of nongovernmental resources needed to assure compliance with environmental laws and plans; (4) identifying institutions that can coordinate central-local and cross-border environmental governance.

The Comparative Effectiveness of Government Interventions on Environmental Performance in the Chemical Industry

Abstract: Effective enforcement is crucial to achieving the objectives of the federal environmental statutes. The federal Environmental Protection Agency (EPA) has recognized the importance of effective enforcement, calling it a critical aspect of environmental governance and committing itself to the maintenance of a "credible deterrent" to regulatory violations. Despite the central role of enforcement to achievement of environmental statutory goals, relatively little is known about why regulated entities either do or do not comply. In particular, empirical studies of environmental enforcement are not plentiful, in part because comprehensive data on compliance and enforcement have been difficult to obtain. Although EPA and state environmental agencies typically assume that rigorous enforcement will deter noncompliance, some environmental law experts have asserted that available evidence suggests that sanctions do not play a major role in inducing compliance with environmental regulations. Even assuming that government enforcement efforts do generally induce regulated firms to improve their performance, relatively little is known about what kinds of enforcement actions are more effective at deterring noncompliance than others. Perhaps for these reasons, EPA has expressed an interest in learning more about the relative effectiveness of different forms of "government interventions" (including inspections, monetary fines, injunctive relief sanctions, and supplemental environmental projects) on the performance of regulated entities. EPA has stated, for example, that empirical research on the comparative effectiveness of these interventions is critical because it will create data sources needed to assess the degree to which each of the interventions affects environmental performance. This article responds to the need for additional insights into the comparative effectiveness of government interventions on the environmental performance of regulated entities by focusing on facilities in the chemical industry that are regulated under the federal Clean Water Act (CWA). The article assesses whether some interventions are likely to be more or less effective than others in improving environmental performance on the basis of two related analyses. First, the article analyzes the effects of specific deterrence, as stemming from actual interventions, and general deterrence, as stemming from the threat of interventions, on the level of discharges relative to facility-specific effluent limitations. Second, the article analyzes the self-reported perceptions of intervention efficacy provided as responses to a survey administered to facilities in the same industry. The article describes our findings on the comparative effectiveness of government interventions on the performance of point sources in the chemical industry subject to CWA permit requirements, and places those findings in the context of the theoretical literature on environmental compliance and previous empirical studies on the effects of government interventions on environmental performance.

Rivertown : rethinking urban rivers

Abstract: Today's urban riverfronts are changing. The decline of river commerce and riverside industry has made riverfront land once used for warehouses, factories, and loading docks available for open space, parks, housing, and nonindustrial uses. Urban rivers, which once functioned as open sewers for cities, are now seen as part of larger watershed ecosystems. Rivertown examines urban river restoration efforts across the United States, presenting case studies from Los Angeles; Washington, D.C.; Portland, Oregon; Chicago; Salt Lake City; and San Jose. It also analyzes the roles of the federal government (in particular, the U.S. Army Corps of Engineers) and citizen activism in urban river politics. A postscript places New Orleans's experience with Hurricane Katrina in the broader context of the national riverside land-use debate. Each case study in Rivertown considers the critical questions of who makes decisions about our urban rivers, who pays to implement these decisions, and who ultimately benefits or suffers from these decisions. In Los Angeles, for example, local nonprofit and academic research groups played crucial roles, whereas Chicago relied on a series of engineering interventions. Some cases--such as the innovative cooperative framework adopted to address problems in the Guadalupe River watershed--offer models for other areas. In each case, authors evaluate the ecological issues and consider urban river restoration projects in relation to other urban economic and environmental initiatives in the region. Rivertown is a valuable resource for urban planners and citizen groups as well as for scholars.Paul Stanton Kibel is Director of Policy West, a public policy consultancy, and an environmental and water rights attorney with Fitzgerald Abbott & Beardsley. He is Adjunct Professor at Golden Gate University School of Law, where he also directs the City Parks Project, and teaches water policy at the Goldman School of Public Policy, University of California, Berkeley. He is the author of The Earth on Trial: Environmental Law on the International Stage.

Climate change: a security (council) issue?

Abstract: On 17 April 2007, the United Nations Security Council held a groundbreaking open debate at the ministerial level on the relationship between energy, security, and climate. As such, the meeting emphasised the need to reflect on the linkages between climate change and international security. This article explains how the topic reached the UN Security Council, highlighting the division in the international community between those who believe that climate change is a security challenge and that it is, therefore, a legitimate issue to bring before the UN Security Council, and those who believe that climate change is rather a matter of sustainable development which should be dealt with by other UN bodies.

An Emerging Product Approach in Environmental Law: Incorporating the life cycle perspective

Abstract: One of the noticeable trends in recent years is that products have received increasing attention in environmental policy. The focus on products and their life cycle impacts is often referred to as ?life cycle thinking?. This implies a shift away from the traditional focus on production processes and the environmental impacts of point-source pollution, towards a stronger focus on emissions from the other stages of the life cycle of products. Consumer products have a number of life cycle phases, including: the extraction of raw materials and refinement, production of intermediates and finished goods, sales, transportation, storage, use/consumption and final disposal. The environmental impacts from various life cycle phases can be reduced through improved product design and various measures taken by actors throughout the product chain. Minimising life cycle environmental impacts requires initiative and participation from several key actors throughout the product chain, and this in turn requires clear incentives. A key question concerns how much government intervention is necessary for this purpose, or what type of government policies that are necessary or desirable. The aim of this research has been to explore the potential to use law as a tool to improve the environmental performance of products over the entire life cycle. In doing so, it examines the potential to use mandatory legal standards for life cycle environmental improvements, taking into account the political and economic context where laws are initiated, negotiated and implemented.

New Institutional Arrangements for a New Generation of Environmental Policy Instruments: Intra- and Interpolicy Co-operation (1995)

Abstract: It is hardly surprising that the European Science Foundation chose environmental policy instruments as the topic of one if its task forces on ‘environmental policy’. All contributions to this volume testify that environmental policy lacks the confidence that it can achieve its goals with the classical environmental policy instruments. After twenty years of hard work of implementation many policymakers arrived at the conclusion that its instruments have to be supplemented by new, more efficient tools. It seems that after a swift booming phase in the late 1970s and 1980s environmental policy, in the light of its current overarching political importance, has already for some time considerably transgressed the simple frame of ordinary policing in the field of health or industrial supervision. More recently, in the search for new instruments, theory and praxis environmental policy has borrowed increasingly from fiscal and tax policy.1 Moreover, the slowly adopted practice of environmental impact assessments had led to first attempts to build a bridge with industrial, land use and infrastructure policy.2 The EIS requires the application of environmental law in the planning and realization of new projects of all governmental policies of environmental relevance. The postulate has always been included in all the relevant laws and at least since the Single European Act of Luxembourg (1987) it figured in the pertinent body of primary law of the European Community (Art. 130 R, Para. 2). In the Maastricht Treaties it received an additional normative reinforcement.3

Environmental Justice: Bridging the Gap between Environmental Laws and 'Justice'

Abstract: In this article, Professor Kaswan considers the sometimes-tense intersection between environmentalism and the environmental justice movement. Professor Kaswan first establishes a framework for evaluating the newly-emerging environmental justice movement, identifying its primary distributive and political justice strands. Professor Kaswan then notes the skeptical views of environmentalism presented in the environmental justice literature. She explains the underlying tension by analyzing the roots of the environmental movement and its early distance from the civil rights movement (from which the environmental justice movement arose), as well as the ways in which environmental law may inadvertently have exacerbated environmental problems for poor and minority communities. Seeking to bridge the gap between environmental law and the struggle for justice, Professor Kaswan then explores the mechanisms by which environmental laws could serve environmental justice. Environmental laws can not only stop unwanted projects, they add transparency to facility siting processes and thereby reveal decisionmaking irrationalities that could be traceable to discrimination. For example, where an entity sites a facility in violation of substantive environmental criteria, it suggests that socio-political factors may be influencing the decision. In addition, many environmental laws provide a tool for generating information about the selected site and alternative sites that an affected community would not otherwise be able to obtain. The information can provide the community a basis for questioning the rationality, and hence the motives, of the siting decision. Environmental laws can thereby play a critical rule in a community's pursuit of political justice.

Protecting the Inner Environment: What Privacy Regulation Can Learn from Environmental Law

Abstract: The Information Economy produces a host of new injuries to personal privacy. These include damage from data mining, data spills, identity theft, the tracking of online activity, and spam. Policymakers are currently searching for a framework with which to think about the governance of these pressing problems. This article argues that environmental law can serve as a useful model. Environmental law is promising for two reasons. First, privacy injuries and environmental damage share a common conceptual structure. Both are negative externalities. Moreover, in the absence of regulation, both will produce a tragedy of the commons - privacy injuries will create such a tragedy in the online environment, while environmental damage will produce one in the natural world. These structural similarities suggest that environmental policy has been dealing with problems that are comparable to those that privacy regulation now faces, and so may be an appropriate model for it. Second, environmental law and policy has been the focal point of a decades-long, highly productive discussion about governance. The intensity of this debate, and the regulatory innovations that it has produced, have made environmental policy the hub of creative thinking about regulation. The article identifies four contemporary regulatory strategies, pioneered in the environmental field, that could serve as particularly good models for privacy regulation. They are: emission fees, pollution transfer and release registries, regulatory covenants, and government support for environmental management systems. The article describes each of these environmental policies in some detail. It then explains how policymakers might productively adapt them for use in protecting privacy. The author initially discussed these ideas in a brief book chapter that he posted on SSRN. This article explores the topic in far greater depth than that earlier publication.

Learning from Environmental Justice: A New Model for International Environmental Rights

Abstract: This article proposes a model for engaging complex international environmental rights problems more systematically. Part II explores the characterization problem that stymies international law solutions to environmental harm to humans. Part III uses United States environmental justice litigation strategies as the basis for a model that assesses the human rights implications of environmental harm. Part IV examines the application of the model to sixteen case studies and suggests lessons for future advocacy efforts. The Article concludes in Part V with a call for greater coordination of environmental rights advocacy. The individual cases are catalogued in detail in the Appendix.