Showing papers on "Environmental law published in 2018"

Creating legal rights for rivers: lessons from Australia, New Zealand, and India

Abstract: As pressures on water resources increase, the demand for innovative institutional arrangements, which address the overuse of water, and underprovision of ecosystem health, is rising. One new and emerging approach is the use of legal personality to protect water systems in law through the granting of legal rights to rivers. This constitutes a significant development in the fields of environmental law and water resources management, yet little analysis is available of how the approach has been used and applied. We critically examine the new legal rights for rivers using three case studies from Australia, New Zealand, and India. We analyze how legal rights have been created in each case, and the complexity of enforcing these legal rights to protect the rivers. We conclude that legal personality could be a useful alternative approach for river management, provided that the new legal rights are given sufficient force and effect.

Listening to Papatūānuku: a call to reform water law

Abstract: The recent legislative recognition of the Whanganui River as its own legal entity is acknowledgement of significant positive transformation for Aotearoa New Zealand's environmental laws. Enabling t...

International Environmental Law

Abstract: International Environmental Law offers a concise, conceptually clear, and legally rigorous introduction to contemporary international environmental law and practice. The book covers all major environmental agreements, paying particular attention to their underlying structure, main legal provisions, and practical operation. It blends legal and policy analysis, making extensive reference to the jurisprudence and scholarship, and addressing the interconnections with other areas of international law, including human rights, humanitarian law, trade and foreign investment. The material is structured into four sections - foundations, substantive regulation, implementation, and influence on other areas of international law - which help the reader to navigate the different areas of international environmental law. Each chapter includes charts summarising the main components of the relevant legal frameworks and provides a detailed bibliography. Suitable for practicing and academic international lawyers who want an accessible, up-to-date introduction to contemporary international environmental law, as well as non-lawyers seeking a concise and clear understanding of the subject.

Living in Harmony with Nature? A Critical Appraisal of the Rights of Mother Earth in Bolivia

Abstract: Juridical protection of the rights of nature is steadily emerging in several legal systems and in public discourse. Building on a recent publication in Transnational Environmental Law (TEL) wherein we interrogated Ecuador’s constitutional experiment with the rights of nature, we critically reflect in this contribution on Bolivia’s legal regime providing for the rights of Mother Earth. We do so first by sketching the juridical-political context within which these statutes were drafted and adopted and then by analyzing the relevant constitutional provisions that provide the basis for the laws of Mother Earth. The third part forms the bulk of the discussion and details the background and the most relevant provisions of Bolivian statutes with a view to enabling a deeper critique in Part Four, where we critically evaluate both the symbolic and the theoretical significance of the statutes as well as concerns related to their practical implementation. Insofar as the rights of nature paradigm has now become a truly global debate and a consideration in transnational comparative legal borrowing practices, our analysis aims to reveal the Bolivian experience which could be instructive to civil society groups, academics, politicians and legislatures in a transnational setting.

The Prevention Principle in International Environmental Law

Abstract: Prevention is recognized as a cornerstone of international environmental law, but this principle remains abstract and elusive in terms of exactly what is required of states to prevent environmental harm. In this illuminating work, Leslie-Anne Duvic-Paoli addresses this issue by offering a systematic, comprehensive assessment in which she clarifies the rationale, content, and scope of the prevention principle while also placing it in a wider legal context. The book offers a detailed analysis of treaty law, custom codification works, and case law before culminating in a conceptualization of prevention based on three definitional traits: 1. Its anticipatory rationale; 2. Its due diligence content; and 3. Its wide spatial scope to protect the environment as a whole. This book should be read by anyone seeking to understand the evolving principle of prevention in international environmental law, and how it increasingly shares common ground with reparation in the arena of compliance control.

The Influence of Corporate Governance on Environmental Disclosure of Listed Non-Financial Firms in Nigeria

Abstract: The study investigates the influence of corporate governance on environmental disclosure of non-financial firms listed in Nigeria Stock Exchange (NSE), anchoring on “trinity theory” (agency, stakeholder and legitimacy theories). 86 firm-year observations across 86 companies listed in Nigeria Stock Exchange (NSE) using content analysis, cross-sectional data, OLS regression techniques were used to analyze the influence of board characteristics on the extent of overall environmental disclosure (OED). The results show that board independence, board meeting and the environmental committee were statistically significant while audit committee independence and board size were insignificant. Among the three company attributes used to mitigate spurious result only Firm size significantly influence the quantity of overall environmental disclosure of the sample companies. Auditor type “big 4” (Ernest Young, Deloitte, KPMG and PWC) and industry membership show insignificant relation to environmental disclosure. The findings indicate that the level of environmental disclosure of nonfinancial companies in Nigeria is quite insufficient at an average of 10.5 %. It is not surprising that environmentally sensitive industry and auditor type had no significant influence on the extent of environmental disclosure. This buttress the point that the environment the companies operate is institutionally and legally weak. Hence it calls for improvement on environmental law and implementation as well as harmonized environmental reporting infrastructure and standard to aid comparison.

Kebijakan pembangunan berkelanjutan yang berwawasan lingkungan di indonesia

Abstract: Development in Indonesia still ignores environmental sustainability. Development that is expected to provide benefits turns out to have risks from its implementation. Indeed, development has a close relationship with the environment. When development cannot pay attention to environmental sustainability, the environment is not only damaged but can eventually become extinct. Environmental extinction means the extinction of man himself. Sustainable development is present as a paradigm that is expected to provide solutions to the negative impacts that arise from the development. In its implementation, the Government of Indonesia has established Law Number 32 of 2009 concerning Environmental Protection and Management. Efforts that can be made in the implementation of environmentally sustainable development in Indonesia include enforcement of environmental law, examination and supervision of “AMDAL”, the role of the community, and the need for partnership triangles between government, business and civil society in equality relations without ignoring economic law, ecology and civilization

A critique of the Global Pact for the environment: a stillborn initiative or the foundation for Lex Anthropocenae ?

Abstract: In May 2018 the process which may ultimately lead to the negotiation of a legally binding Global Pact for the Environment formally commenced under the auspices of the United Nations General Assembly. Expectations for the Pact are high, evidenced in particular by its multiple and overlapping objectives: to serve as a generic binding instrument of international environmental law (IEL) principles ; to integrate, consolidate, unify and ultimately entrench many of the fragmented principles of IEL; and to constitute the first global environmental human rights instrument. In the wake of the impending intergovernmental process, the paper offers a thorough critique of the draft Pact in its present iteration. We do so with the aim of evaluating the strengths and weaknesses of the present draft Pact by interrogating: a) its diplomatic and symbolic relevance and possible unique contribution at the policy level to global environmental law and governance; and b) its potential at the operational level of IEL and global environmental governance, focusing on the extent to which the draft Pact accommodates both existing and more recent rules and principles for environmental protection. As the Pact’s primary ambition is to become a universally binding global treaty, it would be churlish not to recognise its potential for innovation, as well as the considerable opportunity that the negotiation of the Pact will have to generate broad-sweeping and positive impacts. However, our central thesis is that only if the Global Pact were to incorporate ambitious normative provisions to strengthen those public and private global governance efforts that aim to halt the deterioration of Earth system integrity, as well as to maintain and improve integrity, will it be able to offer a firm foundation of the type of Anthropocene Law, termed here as the Lex Anthropocenae, required to confront head-on the deep socio-ecological crisis of the Anthropocene.

Ecosystem services and judge-made law: A review of legal cases in common law countries

Abstract: This paper reviews the prevalence and usage of the concept of “ecosystem services” in American and other common law legal systems. Our review suggests that this concept is rarely relied upon by courts and other adjudicatory bodies. We have identified 113 cases in seven common law countries, including a handful in the United States, the majority of which discuss ecosystem services and related concepts in only a peripheral manner, indicating that adjudicating bodies are hearing cases that consider ecosystem services in broad strokes rather than as central issues. Where ecosystem services are considered substantively, the cases view those services through the lens of interpreting and applying existing environmental laws and regulations, including laws that require environmental valuations. We identify several recurring trends in cases discussing ecosystem services and recommend courses of action for environmental agencies and litigants interested in furthering ecosystem services protection through the court systems of common law countries.

The Emergence of the Environmental Impact Assessment Duty as a Global Legal Norm and General Principle of Law

Abstract: More than half a century ago, Rudolph Schlesinger announced a global survey of legal principles in the pages of the American Journal of International Law. The project’s objective was the identification of a “common core” of legal norms among the family of nations and the ultimate goal the production of something akin to a global restatement of law. Such an endeavor was to yield global principles of law, ultimately giving substance to the General Principles of Law provision under Article 38 of the Statute of the International Court of Justice. In spite of the initial enthusiasm surrounding the project, its ultimate goal was never realized. Five decades later, the prospect of engaging in such a project, focused on the environmental law field, promises more fruitful outcomes. In this article I argue that globalization and other trends have made the EIA duty – the duty to perform environmental impact assessments for projects that are likely to have a significant impact on the environment – a globally accepted norm. A 197-jurisdiction survey finds that the duty has been nearly universally adopted. The article suggests that the EIA duty may now be seen as a “general principle of law recognized by civilized nations,” and in that sense has joined the body of public international law. Finally, the survey results also point to comparative law methodology as a promising opportunity for identifying new legal norms in the international environmental law field, independent of the cumbersome process of treaty negotiation or the time-consuming development of customary law.

Environmental Regulation and Corporate Financing—Quasi-Natural Experiment Evidence from China

Abstract: The Environmental Protection Law, which includes 70 articles and major changes in six aspects compared to the old law, is called in Chinese society the new Environment Protection Law. When the law was implemented in 2014, it was an important event in China that could be seen as a natural experiment. Based on a difference-in-differences model, this paper considers all of the listed heavily polluting enterprises between 2011 and 2016 as the experimental group and all of the other firms in the same industries listed on the Chinese stock market as the control group and examines the impact of the new Environmental Protection Law on the corporate financing of heavily polluting enterprises and its mechanisms. The results show that the strict environmental law caused Chinese listed enterprises to face higher environmental regulation costs, public pressure and environmental litigation. The financing capacity of heavily polluting enterprises has dropped significantly, especially in areas with higher regulatory intensity. Furthermore, since the new Environmental Protection Law was established, overinvestment by China’s heavily polluting enterprises has been significantly inhibited, and the decline in financing capacity exerts a mediating effect. The ultimate economic consequences of the new Environmental Protection Law are to decrease the corporate value of heavily polluting industries.

Ecological Law of Russia: Milestones of Formation

Abstract: The article is devoted to the determination of the period of the formation of environmental law. The solution of this problem provides an opportunity for a deeper understanding of the essence of this branch of law by those who deal with it today. According to the authors, the basis for asserting that this occurred at one time or another should be the existence of a subject and principles that correspond to the subject and principles of modern environmental law. B.N.Zemtsov and T.R.Suzdaleva believe that it was formed not earlier than the 1960s, when the contours of the solution of the primary material and household problems of the Soviet people were identified and the question of the quality of life arose. Keywords—environmental law; environmental protection; environmental legislation

The Anthropocentric Ontology of International Environmental Law and the Sustainable Development Goals: Towards an Ecocentric Rule of Law in the Anthropocene

Abstract: In this article we argue that the Anthropocene’s deepening socio-ecological crisis amplifies demands on, and exposes the deficiencies of, our ailing regulatory institutions, including that of international environmental law (IEL). Many of the perceived failures of IEL have been attributed to the anthropocentric, as opposed to the ecocentric, ontology of this body of law. As a result of its anthropocentric orientation and the resultant deficiencies, IEL is unable to halt the type of human behaviour that is causing the Anthropocene, while it exacerbates environmental destruction, gender and class inequalities, growing inter- and intra-species hierarchies, human rights abuses, and socio-economic and ecological injustices. These are the same types of concerns that the recently proclaimed Sustainable Development Goals (SDGs) set out to address. The SDGs are, however, themselves anthropocentric; an unfortunate situation which reinforces the anthropocentrism of IEL and vice versa. Considering the anthropocentric genesis of IEL and the broader SDGs framework, this article sets out to argue that the anthropocentrism inherent in the ontological orientation of IEL and the SDGs risks exacerbating Anthropocene-like events, and a more ecocentric orientation for both is urgently required to enable a more ecocentric rule of law to better mediate the human-environment interface in the Anthropocene. Our point of departure is that respect for ecological limits is the only way in which humankind, acting as principal global agents of care, will be able to ensure a sustainable future for human and nonhuman constituents of the Earth community. Correspondingly, the rule of law must also come to reflect such imperatives.

Looking for Law in Unusual Places: Cross-Border Diffusion of Environmental Norms

Abstract: Scholars of environmental law are gaining comfort with looking for law in unusual places. As a result, lists and maps of the environmental content of contractual provisions are emerging. What these lists and maps largely miss, however, is the powerful dynamic of how legal norms move across borders through contract. This article argues that contractual provisions operate as critical platforms for the migration of legal norms, ideas and technologies between project and transactional settings. Three dynamics of how this movement takes place (transfer from contract to contract, migration from contract to legislation, and entrenching private standards through contract) are explored – each revealing how contractual practices reproduce selective visions of what counts as the ‘environment’ worth protecting.

Environmental firms’ better attitude towards nature in the context of corporate compliance

Abstract: The recent publishing of the Criminal Code Reform, known as the Corporate Governance Code and by which companies are prosecuted for the crimes they have committed, is contributing towards improving the management of companies involved in using natural resources. This study explores the disposition of environmental companies towards respect for nature in the context of the new Spanish Criminal Code 1/2015. Over 916 companies, including 104 environmental companies, have been asked about their knowledge of the code and the consequences it has for them through a survey. The paper explores the influence of regulatory compliance, coercive enforcement and cooperative actions on environmental companies to develop better attitudes towards nature. Partial Least Squares (PLS) Path Modelling was used to build an interaction model among variables. The results of the research reveal how environmental companies are more inclined to developing organizational standards (Cooperative Environmental Protocols) and to improving compliance with environmental law (coercive regulation). The model has a moderate predictive effect, explaining 54.1% of environmental companies’ Better Attitude towards Nature. The findings may have important implications for environmental authorities when deterring environmental crimes.

Aesthetics and environmental law: valuing Tasmania’s ‘ordinary’ nature

Abstract: This article evaluates how aesthetic appreciation of the environment, such as perception of beautiful scenery, interacts with environmental law. While nature is tangible and real, its aesthetic properties are culturally embedded and continually evolving as societies change. Because art often mediates how people experience environmental aesthetics, such as through film, paintings and music, the arts also have a role in environmental decision-making. The article assesses the opportunities and obstacles to an aesthetics-based environmental law, with primary emphasis on the ‘specialness’ bias in many aesthetic judgements. These themes are explored through a Tasmanian case study. Law reform should facilitate the ‘curating’ of environmental aesthetics in conjunction with greater involvement of the arts community.

Transnational Labour Law and the Environment: Beyond the Bounded Autonomous Worker

Abstract: Labour and environmental law operate in silos. This is equally true in the transnational sphere, despite the 2011 endorsement of UN Guiding Principles on Business and Human Rights. Labour rights as human rights appear easier to grasp than environmental human rights, and the UNGPs specifically highlight the work of the ILO. Due to egregious events such as the Bangladesh Rana Plaza factory collapse, transnational governance regimes have emerged to better ensure building safety and respect for labour rights. Yet the process of production of “fast fashion” is not only a problem for workers whose health and safety are put at risk, but also for children and families who live in the vicinity of polluting factories and experience “slow death” as a result of contaminated air and water. This paper will explore how a reconceptualization of the worker as a relational being and corporeal citizen might bridge the silos.

Sustaining international law : history, nature, and the politics of global ordering

Abstract: This thesis investigates how the natural environment is conceptualised in international law. Environmental campaigners typically place great faith in the discipline’s ability to restrain the onset of growing ‘global’ problems: such as species extinctions, clearing of forests, pollution, and climate change. Law has traditionally been a key domain for efforts to regulate, and curb, these problems. While a vast body of existing literature assesses the effectiveness and adequacy of these initiatives, this dissertation takes a different approach. It explores particular visions of the natural environment that inform such initiatives. I will proceed from the premise that international law, rather than merely reflecting the natural environment, shapes how we perceive it. With this in mind, I will investigate a selection of stories that international law tells about the natural environment, and consider the different, competing stories it deprivileges. The key question is: what role has international law played in making certain ways of thinking about nature come to seem normal or intuitive, and how does this affect efforts to curb environmental harms? Adopting historical and philosophical approaches informed by critical approaches to law, I will show how dominant manifestations of nature are articulated—and sustained—with regard to ideas of mastery and resources, national economies and conservation, the (human) environment, sustainable development, the green economy, and natural capital. I will use insights from radical ecological and postcolonial theory to highlight the ramifications of such conceptualisations. My discussion will focus on a series of key episodes in the history of international environmental law, as well as on the work of prominent scholars and institutions in the field of international environmental law. I will argue that international law is constrained in its efforts to deal with environmental problems insofar as the discipline is itself complicit in the use, abuse, and subjugation of environments. Furthermore, I will contend that the idea of the environment is continually reconstructed and repositioned, in ways that sustain a certain relationship, or form of global ordering. As we shall observe, debates in international fora over the scope and meaning of the environment fostered anxieties about the degree to which it was being adequately protected. Yet, I will suggest, these were neutralised—or co-opted—in ways that reinforced dominant logics. Put simply, international law and institutions have sustained a narrow understanding—or framing—of the environment. Ultimately, it has confined the outcomes of environmental policies to a set of largely predetermined outcomes. This undermines international law’s contingency and potential dynamism. Added to this, is the implication that such framings are designed to preserve the power and privilege of a small minority of the world’s peoples.

Commons and Environmental Regulation in History: The Water Commons Beyond Property and Sovereignty

Abstract: Do commons outline a different way of considering historical forms of environmental regulation? Might they represent a sort of alternative, apart from the usual model of environmental law which rests on public authorities and forms of restrictions of private rights? In order to grasp the complex relationship between environmental law and history, it is essential to pay attention to the state’s radical transformation in the nineteenth century, especially the separation (and separate definition) of administration and the judiciary. This article aims to historicize the commons, but also the state in order to escape the projected shadow of public administration in considering environmental regulation. It looks into the commons’ ambiguous relations with history. A first point is to critically reconsider the opposition between commons and enclosure, inherited from Hardin’s thesis. A second point consists in deconstructing mythical accounts of stateless commons. This is done by relying on water commons — which are also a key example in Ostrom’s theory. Early histories of water commons by commoners provided the opportunity for a first version of commons’ history without the state. This ‘discovery’ of the water commons presented them as a pertinent response to the aporia of the private property system, but also to the dangers of keeping resources available to the administrative state, which appeared ill-suited to managing scarce natural resources. This positive development translated into a series of fascinating inquiries, undertaken from the 1800s to the 1880s in several places across Europe. They gave rise to the very first ethno geographic descriptions of the commons’ functioning. It was in the context of very acute conflicts over access to the resource that this use of history became enshrined. The historical longevity of these irrigators’ communities was highlighted in order to defend their historical and customary rights against the administrative state’s will to regulate all water courses, which was more favorable to new users in water sharing. The resource’s ecological limit thus served to set boundaries to the administration’s intervention. Scarcity was a way to conceive of the resource as unavailable both for property and for state sovereignty. Protecting environmental resources through the courts was a way of conceiving a regulation based on the resource’s specific status, rather than on the will of subjects — whether private, collective or public.

The Right of Access to Environmental Information in Ukraine and the EU

Abstract: The purpose of our scholarly work is to explore legal regulation of access to environmental information and public participation in environmental decision-making in Ukraine and the EU. The article considers how the Aarhus Convention has been implemented in EU member states and Ukraine, concentrating on the public access to information as a valid instrument for environmental protection. Taking part in the Erasmus + Jean Monnet Module "EU Environmental Policy and Law" we have analyzed the possibility of obtaining operative environmental information on the state of the environment in cities and villages of Ukraine. We also have studied European standards in the sphere of disclosure of environmental information and public participation, found some gaps in Ukrainian legislation and filled them in. We offer an interdisciplinary approach: integration of information law, environmental law, international law, human rights and national security. This will allow us to form a conceptual understanding of the legal regulation of information on the environment as an object of realization of information human rights and a component of national security in the context of environmental threats. Keywords: Environmental information, information human rights, sustainable development, EU environmental policy

Laws of investment and environmental protection : the case of Ethiopian largescale agriculture

Abstract: A contradiction between the Ethiopian law of investment and environmental law is prevalent since law of investment promotes development while environmental law protects the environment. The thesis investigates the general legal issue: How do the investment and environmental laws of Ethiopia promote large-scale agricultural development without adversely affecting the environment? In the research, comparative legal research methodology is employed: comparison is made between the internationally accepted principles of large-scale agricultural investment and Ethiopian laws; the laws and experiences of Brazil and South Africa are showed that law of sustainable large-scale agricultural investment is vital to promote agricultural development and protect the environment. International law on investment and environment are also considered. International legal principles of solving the contradiction between environmental law and investment law are analysed. Legal and document analysis of Ethiopian laws, policies and government documents have been made. Interviews have been made, data through questionnaires have been collected and analysed, and 12 large-scale agricultural investment farms have been observed and critically analysed. The thesis identified that law of large-scale agricultural investment promotes development while Ethiopian environmental law protects the environment. The law has a role in promoting large-scale agricultural development by recognising the right to development and providing incentives and creating conducive environment. Thus, the law should be used to promote both the right to development and environmental protection. The nexus between investment law and environmental law should be strengthening. It is identified that the law of sustainable large-scale agricultural development could protect the environment while promoting large-scale agricultural development. The thesis identified the Ethiopian law and the practices do not promote sustainable large-scale agricultural development. Thus, it is recommended that precautionary principle, like EIA should be made a requirement for large-scale agricultural investment,

Resilience and Adaptive Capacity of Aquatic Environmental Law in the EU: An Evaluation and Comparison of the WFD, MSFD, and MSPD

Abstract: Over the past 50 years, humans have changed aquatic marine and freshwater ecosystems more rapidly and extensively than in any comparable period in human history. These changes have been the effect of meeting growing needs for aquatic ecosystem services crucial for sustaining economic and social development.1 Aquatic ecosystems provide benefits for humans in terms of transport, irrigation and agricultural production, aquaculture and fish production, drinking water, water purification, climate regulation, water retention, disease management, production of renewable energy, and recreation, to name but a few.2 Aquatic ecosystems and the related social systems need to maintain their core functions (resilience) to safeguard the provisioning and sustainable use of these services. Accordingly, the ecosystem approach has been the governance concept of choice for international and European policymakers.3 Three important European Union (EU) directives regulating the planning and management of aquatic environments embrace the ecosystem approach

Environmental principles and the right to a quality environment

Abstract: This contribution traces the history of environmental rights over the past few decades, focusing on international and regional human rights instruments, as well as case law. It does so in the context of the environmental principles associated with environmental rights. It explores the meaning of a ‘quality’ environment, and canvasses the distinction between procedural and substantive rights in the environmental realm. The work of the United Nations Special Rapporteur on the right to environment is covered. The constitutionalization and legislative enactment of the right to environment are explored. The role of the courts in addressing environmental rights is briefly looked at. Research gaps are identified, and areas for further research are also set out. A comprehensive bibliography is included.