Showing papers on "Environmental law published in 2019"

Authoritarian environmentalism and environmental policy implementation in China

Abstract: Policy implementation is essential to the effectiveness of environmental governance. Focusing on two types of policies in China, law derived environmental policies and plan derived environmental policies; this research analyzed the impact of the central government's rules, regulations, and mechanism for rewards/penalties on local governments’ policy implementation. The results indicate that local governments selectively implement environmental policies. This selective implementation effort is primarily determined by the authoritarian environmentalism and the target responsibility system imposed by the central government. Local governments focus their attention on the attitude of the central government toward that policy because the scope of its reward/penalty system provides a signaling effect for different policies. The central government's regulatory oversight of policy implementation has also increased the binding power of the incentive mechanism. China's environmental law or policy implementation should make the government work paramountly.

Compliance with EU environmental law. The iceberg is melting

Abstract: The European Union (EU) has become the main driver for environmental policy output for its member states whose number has more than tripled over the past four decades. The EU’s deepening and wideni...

Environmental Law and Economics

Abstract: In Environmental Law and Economics, Michael G. Faure and Roy A. Partain provide a detailed overview of the law-and-economics methodology developed and employed by environmental lawyers and policymakers. The authors demonstrate how this approach can transcend political divisions in the context of international environmental law, environmental criminal law, and the property rights approach to environmental law. Private law solutions and public regulatory approaches are also explored, including traditional command-and-control and market-based forms of regulation. The book not only shows how the law-and-economics framework can be used to protect the environment, but also to examine deeper questions involving environmental federalism and the effectiveness of environmental law in developing economies. In clear, digestible prose that does not require readers to possess a background in microeconomics or mathematics, the authors introduce the theory and practice of environmental law and economics that have been so critical in the creation of robust environmental policy.

Untapped capacity for resilience in environmental law.

Abstract: Over the past several decades, environmental governance has made substantial progress in addressing environmental change, but emerging environmental problems require new innovations in law, policy, and governance. While expansive legal reform is unlikely to occur soon, there is untapped potential in existing laws to address environmental change, both by leveraging adaptive and transformative capacities within the law itself to enhance social-ecological resilience and by using those laws to allow social-ecological systems to adapt and transform. Legal and policy research to date has largely overlooked this potential, even though it offers a more expedient approach to addressing environmental change than waiting for full-scale environmental law reform. We highlight examples from the United States and the European Union of untapped capacity in existing laws for fostering resilience in social-ecological systems. We show that governments and other governance agents can make substantial advances in addressing environmental change in the short term—without major legal reform—by exploiting those untapped capacities, and we offer principles and strategies to guide such initiatives.

Left to interest groups? On the prospects for enforcing environmental law in the European Union

Abstract: There have been important changes in the enforcement of European Union environmental law over the last 25 years. Environmental law has traditionally been reliant on the European Commission, but the...

Earth system law: The juridical dimensions of earth system governance

Abstract: While the focus of earth system governance is on the human-social aspects of Earth system changes, law has played a peripheral part in the earth system governance scientific agenda. Earth system governance perspectives have also not significantly infiltrated the juridical domain. In this paper we seek to initiate a debate on the juridical dimensions of earth system governance. We make out a case in support of developing a new overarching legal phenomenon that, more than environmental law (among others) comprehensively accommodates and encapsulates the juridical aspects of earth system governance, including a new accompanying research agenda. We call this new legal phenomenon 'earth system law'. Earth system law, as we aim to show, could introduce a new era in legal scholarship, while seeking to comprehensively respond to the regulatory challenges presented by a changing Earth system in the Anthropocene.

Policy Evolution under the Clean Air Act

Abstract: The US Clean Air Act, passed in 1970 with strong bipartisan support, was the first environmental law to give the federal government a serious regulatory role, established the architecture of the US air pollution control system, and became a model for subsequent environmental laws in the United States and globally. We outline the act's key provisions, as well as the main changes Congress has made to it over time. We assess the evolution of air pollution control policy under the Clean Air Act, with particular attention to the types of policy instruments used. We provide a generic assessment of the major types of policy instruments, and we trace and assess the historical evolution of the Environmental Protection Agency's policy instrument use, with particular focus on the increased use of market-based policy instruments, beginning in the 1970s and culminating in the 1990s. Over the past 50 years, air pollution regulation has gradually become more complex, and over the past 20 years, policy debates have become increasingly partisan and polarized, to the point that it has become impossible to amend the act or pass other legislation to address the new threat of climate change.

Cooperative control of regional transboundary air pollutants

Abstract: After food and water, clean air is essential for continuity of life on the planet. Complex trans-boundary air pollution problem is often linked to sustenance and eutrophication. Air pollution problem has no universal conventions like Montreal and Kyoto protocols in case of refrigerants, except regional cooperative solutions. Polluter-pays principle is typically restricted to the source country. Under article 16, International Environment Law mentions the polluter-pay principle without any legitimate power to mitigate the transboundary air pollution risks. Mongolia, Botswana, and Pakistan are ranked as the most polluted countries, although their accumulative emissions are lesser than any of the coal power producing countries. China, South Africa, and India produce 68–79% of their electricity using coal-fired power plants, emitting harmful pollutants into the common air. Regional winds drive upwind smog into their adjacent downwind countries like Pakistan. This paper compares the published transboundary air pollutant flows data of the most polluted countries (Mongolia, Botswana, Pakistan) with the cleanest ones (Estonia, Mauritius, Australia). Air pollution externality problem can only be solved either by regional cooperation or global environment law which yet does not exist. Drawing an analogy from water contamination laws, this work proposes an extension of the polluter-pays principle to transboundary air pollutants to compensate the public losses. We should collectively go for the international environmental law as we cannot divide air like land. Industrialization near the border may be banned to avoid air pollutant migrations to neighbors.

Beyond Minimum Harmonisation: Gold-Plating and Green-Plating of European Environmental Law

Abstract: This book explains the functioning of shared competences in environmental protection by focusing on member states' interaction with the EU framework. By studying this interaction, Squintani reveals room for improving the level of environmental protection, legal certainty, and efficiency of the system for environmental protection envisaged under the EU Treaties. Accordingly, this book makes a contribution to EU environmental law and policy, but also should be of interest to constitutional lawyers more generally and to scholars working in any field of EU policy and law in which minimum harmonisation is used. Thanks to its focus and clear, accessible prose, this book is also valuable additional reading material for environmental law courses, and to those involved in decision-making in the EU.

Under the radar: the role of fair and equitable benefit-sharing in protecting and realising human rights connected to natural resources

Abstract: This article assess the degree of cross-fertilisation of international human rights and environmental law on fair and equitable benefit-sharing in relation to the human rights of indigenous peoples...

Post-mining Remnants and Revitalization

Abstract: The historic post-mining objects deserve special attention due to their high cognitive and didactic value. Conducting the revitalization of such facilities is aimed at preserving the mining cultural heritage, and as a result, it will insert attractiveness to the region. The publication attempts to present an approach to the issues of revitalization of post-mining objects and their analysis in Poland, Spain, and UK. In Poland, there is the Revitalization Act, which comprehensively defines stages and ways of conducting revitalization. Spanish legal regulations do not provide for a separate legal act on revitalization, but they are based on mining Law, environmental law, and cultural heritage law. On the other hand, legal regulations in UK do not provide solutions for the revitalization of post-mining areas. However, land leases could incorporate within them, prior to any industrial or mining activities commencement, a requirement for re-stabilization or returning the land to a safe environmental condition on activity completion. Despite the considerable diversity of legal conditions in the described countries, revitalization measures are conducted with positive results, as illustrated by the Gold Mine in Zloty Stok, La Tortilla Mine in Linares, and revitalization of King Edward Mine, an old mining site in Cornwall.

Naming, Shaming and Fire Alarms: The Compilation, Development and Use of the List of World Heritage in Danger

Abstract: This article provides a comprehensive empirical analysis of the composition, development and use of the List of World Heritage in Danger (IDL) under the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage. The statutory records of this Convention have been coded in order to generate an overview of the development and use of the IDL between 1978 and 2017. The quantitative data was further developed by reference to World Heritage and transnational law literature. A key finding of this article is that the IDL serves a dual purpose in regulation: firstly, as a ‘fire alarm’ to alert the international community of imminent dangers at World Heritage sites; secondly, as a non-compliance procedure used for ‘naming and shaming’ states that breach the rules. The findings in this article have relevance for heritage scholars and policy makers concerned with the governance of World Heritage as well as those with a broader interest in non-compliance procedures under transnational environmental law.

Reflexive Environmental Law

Abstract: This chapter reviews various types of market-based regulation and addresses the need for international harmonization. Reflexive law focuses on influencing the “self-referential” capacities of the social institutions subject to regulation. Reflexive law attempts to provide solutions to the gridlock of modern law. Reflexive solutions offload some of the weight of social regulation from the legal system to other social actors. One of the first major environmental statutes passed in the United States was neither market-based nor command-and-control. When the global dimension is considered, it becomes even more clear that the force of business, especially that of large multinational enterprises, must be enlisted in the environmental cause. Reflexive environmental law enlists businesses and other intermediary institutions in the struggle for environmental protection. The inadequacy of command-and-control regulation fuels the hottest growth industry in environmental law: “free market enironmentalism.” Environmental marketing regulation to identify “green products” is the more ambitious variant.

Benefit-sharing in Environmental Governance: Local Experiences of a Global Concept

Abstract: Taking a bottom-up perspective, this book explores local framings of a wide range of issues related to benefit-sharing, a growing concept in global environmental governance. Benefit-sharing in Environmental Governance draws on original case studies from South Africa, Namibia, Greece, Argentina, and Malaysia to shed light on what benefit-sharing looks like from the local viewpoint. These local-level case studies move away from the idea of benefit-sharing as defined by a single international organization or treaty. Rather, they reflect different situations where benefit-sharing has been considered, including agriculture, access to land and plants, wildlife management, and extractives industries. Common themes in the experiences of local communities form the basis for an exploration of spaces for local voices at the international level in the Convention on Biological Diversity (CBD), often argued to be the most open arena to non-state actors, and therefore vital to how local voices may be included at the global level. The book analyzes the decisions of the CBD parties to produce an in-depth reflection on how this arena builds and delimits spaces for the expression of local community themes, and paths for local community participation including community protocols. The book then situates the bottom-up findings in the wider debate about global civil society and deliberative democracy in environmental governance. This interdisciplinary book will be of great interest to students and scholars of environmental politics, environmental law, political ecology and global governance, as well as practitioners and policymakers involved in multilateral environmental agreements.

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

The Contribution of China’s Civil Law to Sustainable Development: Progress and Prospects

Abstract: Environmental protection is mainly the focus of environmental law in China, but as China has started to pursue ecological civilization, its civil law has begun to respond to environmental problems as well, which is called the “greening of civil law”. As a result, the newly passed General Provisions of Civil Law adopted a “Green Principle” requiring private actors to contribute to resources conservation and environmental protection in civil activities. Through normative and comparative analysis, this article explores the establishment of the “Green Principle”, the rationales for civil law’s response to environmental problems in China, the progress already made, and the further efforts that are needed. It argues that the major challenge for the greening of China’s civil law at present is the modification of the subsequent sections of the forthcoming civil code. Despite the progress that has already been made, further efforts are needed regarding the following aspects: environmental and resources protection should be taken into account in contract rules concerning the validity, performance, and interpretation of contracts, and rules on emission trading contracts should be added; the property section should stipulate the unified exercise of state ownership over natural resources; and the “personality rights” section should stipulate environmental rights so as to clarify the right that is violated in environmental public interest litigation.

A Global Environmental Constitution for the Anthropocene

Abstract: International environmental law (IEL) has been unable to effectively respond to the Anthropocene’s global socio-ecological crisis, which is critically existential and requires radical interventions and regulatory reform. This article explores the potential of the recent United Nations (UN)-backed initiative to adopt a Global Pact for the Environment as an opportunity to reform IEL. It does so by: i) reflecting on the Anthropocene’s demands for a constitutionalized form of IEL through the lens of global environmental constitutionalism; ii) investigating the extent to which the Global Pact could contribute to such a vision; and iii) suggesting ways in which to strengthen the constitutional potential of the Global Pact in this endeavour. To this end, the article revisits the World Charter for Nature of 1982, which seems to have slipped off the radar in academic as well as policy circles. A case is made in renewed support of the Charter, which already enjoys the backing of the majority of UN General Assembly member states, and which has constitutional qualities, to serve as a ‘best-practice’ example during the ensuing negotiation of the Global Pact.

Transnational Environmental Law's Missing People

Abstract: Legal scholars rely heavily on vocabularies of ‘actors’, ‘agents’, and ‘experts’ to account for the fact that law does not develop by itself. However, the identities, idiosyncrasies, and individual professional contributions of law's people are rarely illuminated. This article suggests that the relative absence of people in transnational legal scholarship helps to explain some of its gaps. The task of bringing ‘human actors back on stage’ creates some new opportunities for transnational environmental law scholarship. It invites attention to both dominant and excluded voices. It offers a way of bridging the gap between the bureaucratic language of law and its lived reality. It also provides an understanding of why, despite ferocious attempts to roll back the advances of environmental law in some places, many scholars and practitioners find reason to be optimistic about the future of environmental law.

Global environmental law: context and theory, challenge and promise

Abstract: Few issue areas exemplify the centrifugal forces that prompted the emergence of global law scholarship better than the environment. With its propensity to blur or transcend conventional distinctions between national and international, public and private, and formal and informal, environmental governance offers a consummate case study to test the promise and perils of global law. In this article, we situate global environmental law in the broader debate about lawmaking and application beyond the nation state, tracing the evolution and elusive boundaries of this nascent field. Our survey allows us to identify conceptual ambiguities and missed opportunities in the literature on global environmental law, including challenges to its normativity and legitimacy. From there, however, we proceed to outline a twofold opportunity for the global environmental law project: an opportunity to enrich environmental law with more diverse and inclusive practices; and an opportunity for collaborative self-reflexivity by the scholars and practitioners of environmental law as these not only interpret and apply, but through their work actively shape the content of the law.

Sustainable cybersecurity? Rethinking approaches to protecting energy infrastructure in the European High North

Abstract: Rapidly increasing digitization has positively contributed to economic and social development and helped increasing environmental protection. However, it also made socio-technical systems and ecosystems more vulnerable to cyber-threats. Critical infrastructure (CI) in the energy sector is particularly vulnerable to such threats. Remoteness, seasonal darkness, and severe climate that is becoming less predictable due to global climate change–the kind of conditions present in the Arctic European High North (EHN), for example–amplify the impacts of a potential cyber-attack. Although these exceptionally critical infrastructure conditions (ECIC), as we term them, pose inordinate and immense governance challenges, the existing national and international legal frameworks treat them in a fragmented manner. In this paper, we argue for rethinking the existing governance structures and propose an approach that connects cybersecurity and environmental governance. We outline the contours of a coherent and cohesive risk-based, pluralistic, and polycentric legal framework that we see as a critical part of the new ECIC governance regime. We draw upon the concept of sustainable development and the precautionary and polluter-pays principles of environmental law to propose three guiding principles for this framework.

Standing to Sue Beyond Individual Rights: Who Should Be Eligible to Bring Environmental Public Interest Litigation in China?

Abstract: Formally adopted in 2012, environmental public interest litigation in China has expanded standing beyond individual rights by granting administrative authorities, procuratorates, and non-governmental organizations (NGOs) the ability to initiate environmental public interest litigation (PIL). However, the aims of enhancing the enforcement of environmental regulation and the development of the ‘objective legality’ model through civil society have not been met. This is as a result of administrative authorities and procuratorates being granted standing, which inhibits NGOs from initiating their own PIL in line with the aims of the ‘objective legality’ model. In order to promote participation by civil society and its actors in environmental law enforcement, NGOs should be granted preferential standing in environmental PIL. To this end, the current requirements for NGOs to be granted standing should be relaxed, and the standing granted to administrative authorities and procuratorates should be limited or removed.