Areas Of Environmental Law Research Articles

Uticaj nevladinih organizacija na međunarodno pravo zaštite životne sredine - posledice po međunarodnopravni subjektivitet države

Non-governmental organizations have achieved significant success in the development of international environmental law during the last decades. Their activities such as lobbying, attracting public attention and media campaigns have contributed the development of certain environmental issues. International and regional agreements provide various forms of participation and cooperation with NGOs. The author considers whether the growing influence of NGOs in the development of environmental law has consequences for the state as a subject of international law. Through their activities, NGOs had acquired certain elements of international legal personality and had entered the domain which traditionally belongs to the state. This phenomenon raises the question of the potential transformation of the concept of the international legal personality, as well as the readiness of international law for flexibility regarding this issue. The author concludes that, despite the growing importance of NGOs in the development of environmental law, the concept of international law is not ready for transformation. In overcoming this problem, states should make the best by using the role and existence of NGOs, and, in the area of environmental law, with joint efforts, continue the development of this branch of law.

Automated Decision-Making and the Precautionary Principle in EU Law

AbstractThe article is predicated upon the allegation that there is a similarity between the scientific uncertainty linked to the hazard which human interventions pose to the natural environment and the hazard which the development of automated decision-making techniques poses to certain aspects of human lives in the digital environment. On the basis of this allegation, the analysis examines the similarities between the European environmental law, which is crucial for the natural environment, and the European data protection law, which is fundamental for the digital environment. As there are measures already adopted by the data protection law from the environmental law, such as impact assessments and the right to access information, the main hypothesis of this analysis is to consider whether there are further inspirations for the development of European data protection law which could be drawn from environmental law, regarding the scientific uncertainty which is common to these two areas of regulation. The article examines a legal measure, namely, the precautionary principle, as the conjectural response to the challenges linked to the development of the new technologies. The experiences collected in the area of environmental law concerning the precautionary principle are analysed as a source of lessons to be learned concerning the regulatory measures adopted in order to deal with scientific uncertainty, not only in the natural environment, but also in the digital one.

SUSTAINABLE DEVELOPMENT: THE ROLE OF PRECAUTIONARY PRINCIPLE IN ADVANCING ISLAMIC BANKING IN AFRICA

Principle 16 of the Rio Declaration on Sustainable Development defined Precautionary Principle as the taking of preventive measures without having to wait until the reality and seriousness of the threat become fully known. The study examines the measures adopted by Islamic Banks in Nigeria to create essential mechanisms to achieve sustainable development. The study identifies the relationship between Islamic banking and sustainable development. The qualitative approach is used. The qualitative approach includes content, deductive, and inductive analysis as well as comparative method. The references used in this study are the primary and secondary book. Both materials are analysed accordingly to get the information related to this study. The study found that the precautionary principle plays an important role in the area of environmental law and Islamic banking in Nigeria. The study recommends the adoption of the precautionary principles in promoting Islamic banking system in Nigeria.

Matters of judgement

An independent judiciary, in a political and legal system that values integrity and transparency, is vital in addressing environmental degradation and in upholding the environmental rule of law worldwide. In an urban planning case at the National High Court of Brazil, the court stated a view that I believe to be true in all areas of environmental law.

Congressional Plenary Power and Indigenous Environmental Stewardship: The Limits of Environmental Federalism

Congressional plenary power has been a powerful force in federal law for over a century, forming the legal foundation of Congress’s extraordinarily wide range of legislation over indigenous Americans, their lands, and their governments. The Supreme Court's corollary Plenary Power Doctrine has bolstered this power over time by requiring highly deferential judicial review of the many statutes related to Indian affairs. Despite the lack of a strong Constitutional foundation, Congress has consistently used the mantle of Plenary Power to legislate in a wide range of indigenous matters and the Supreme Court has declined to place meaningful constraints upon its exercise. In the area of environmental law in particular, Congress exercised its plenary power to delegate environmental regulatory authority through various statutes, including the Clean Water Act, the Clean Air Act, the Safe Drinking Water Act, and others. These delegations have been widely lauded for the opportunities they created in the area of tribal environmental law. Yet, despite the excitement that these amendments initially brought, their value remains open for debate. For instance, less than .1% of federally recognized tribes have obtained primacy from EPA under one or more of the Tribes as States (TAS) provisions in the environmental statutes. The faulty legal foundation and arguably low level of success of the TAS provisions (particularly when viewed across the entirety of tribal and indigenous lands in the United States) call into question the continuing role and value of the Congressional Plenary Power Doctrine itself. For, while the short-term goal of improving air or water quality might be achieved by the tribes that can manage to satisfy the numerous criteria to obtain primacy in one or more areas, the legal reality is that the federal government still controls the regulatory playing field for the vast majority of tribes, and even for tribes that have obtained TAS status in one area, but not others. This Article examines critically the role of Congressional plenary power, in the past and in the modern era, to illustrate how the Constitutional basis for Congress’s asserted power in this area is inherently flawed. It also explores the pragmatic limitations of Congressional plenary power over tribal environmental quality. Finally, the Article explains how continued recognition of Congressional plenary power over indigenous environmental regulation and environmental quality causes serious and troubling concerns for tribal sovereignty and tribal environmental quality in the long term.

The Commission: A Sheep in Wolf’s Clothing?

This article centres on the effectiveness of Article 258 tfeu proceedings for the enforcement of eu environmental law. Employing as an example the case between the Commission and Sweden on the licensed hunting of wolves – a species enjoying strict protection in accordance with the Habitats Directive – the pros and cons will be discussed of infringement proceedings for the enforcement of the common responsibilities in the environmental area. While these proceedings can be effective in situations where they are used, they suffer unpredictability and a lack of consistency owing to political balancing within the Commission. Furthermore, lack of transparency in communication between the Commission and the governments of the Member States prevent public scrutiny of the system, which contributes to alienation of the eu from the public. Finally, on areas of environmental law – which are highly dependent upon scientific expert knowledge and thus dominated by ‘soft guidelines’ – infringement proceedings are an important complement to references from national courts to cjeu for preliminary rulings on controversial issues in order to avoid ‘circular decision-making’. Thus, the Swedish wolf issue can serve as a background for a more general discussion on infringement proceedings as an effective means for the enforcement of environmental law within the Union.

Getting it Right: How the Iowa Supreme Court Correctly Made Room for Common Law State Torts in Clean Air Act Litigation

For centuries, common law torts have provided citizens with a reliable avenue to redress environmental harm. Whether such harm presented itself through water, air, or waste pollution, citizens have long been empowered to seek remedies in state courts, alleging most commonly nuisance, negligence, or trespass. However, recent expansion of federal oversight and regulation in the area of environmental law has compelled courts to consider whether these state common law torts have now been preempted by federal legislation.In 2011, the U.S. Supreme Court decision American Electric Power Co. v. Connecticut held that the Clean Air Act, which essentially regulates the nation’s air pollution, displaces all federal common law claims seeking relief against air polluters. The Court did not hold whether state common law claims were also preempted by the Clean Air Act, and instead, the Court expressly left the question undecided. Predictably, several lower federal courts have since confronted the question of whether state common law claims are preempted by the Clean Air Act. Although these courts have generally held that the Clean Air Act does not preempt all state common law claims, they have not been unanimous. In June of 2014, the Iowa Supreme Court became one of the first state supreme courts to address this issue in Freeman v. Grain Processing Corporation. In a unanimous decision, the Iowa court held that the plaintiffs’ common law tort claims against a local corn wet milling facility were not preempted by the Clean Air Act or its state law corollary. This Note contends that the Iowa Supreme Court’s preemption analysis was consistent with U.S. Supreme Court principles, and accordingly, that Freeman was correctly decided. The court’s decision reached the correct result for three reasons. First, the court recognized the conceptual and remedial differences between private tort actions and public environmental regulation. Second, the court gave full meaning to the structural framework and statutory language of the Clean Air Act. Third, the Iowa court properly relied on U.S. Supreme Court precedent interpreting the Clean Water Act to interpret the similar Clean Air Act.Freeman now allows Iowa citizens to redress actual harm caused by environmental air pollution through tort instead of relying on an overarching, bureaucratic regulatory system. Whether or not a citizen can actually demonstrate environmental harm — and collect damages from environmental polluters — was beyond the scope of the Freeman decision. As to the threshold question of whether common law claims can even coexist in an immense regulatory framework such as the Clean Air Act, Freeman v. Grain Processing Corporation correctly reaffirmed the role of common law torts in an age of environmental statutory regulation and determined that the Clean Air Act makes room for these state common law claims.

Justice Brandeis and Indian Country: Lessons from the Tribal Environmental Laboratory

Justice Brandeis first famously wrote of a system of federalism where states would serve as laboratories of regulatory experimentation, allowing other states and the federal government to benefit from successful regulatory experiments. Although likely beyond the contemplation of Brandeis, tribes, as separate sovereigns existing within the United States, are well-placed to experiment in new and interesting ways. In particular, given their unique connection to the land and the intensified threat of some modern environmental challenges, many tribes are already engaged in regulatory innovation related to environmental law. This is the first scholarly work to fully develop the idea of tribes as “laboratories” for examining environmental law, demonstrating that tribal experimentation can generate the same benefits typically ascribed to the system of federalism. This is also the first article to examine how tribes are already innovating in areas of environmental law outside of tribal codes. The article begins with an examination of federalism and the benefits, such as states as laboratories, typically attributed to the system of federalism. Having provided an introduction, the article then explains how federalism itself is not required to achieve the benefits associated with it, arguing that tribal regulatory experimentation can yield similar results. Next, the article establishes the modern-day need for environmental regulatory experimentation given the lack of innovation occurring at the federal level. And, finally, the article takes a deep look into forms of tribal environmental law related to the regulation of environmental pollution and climate change other than code provisions. Such an examination is particularly helpful given the potential for governments to use such legal tools to fill existing regulatory gaps and the ease with which innovations in this field can be diffused amongst other governments. Having considered these other forms of tribal environmental laws, the article then develops some initial thoughts of how tribes, the states and the federal government may benefit from innovations occurring within the tribal environmental laboratory. Tribal environmental law is particularly exciting given its ability to transcend federal and state environmental law. This section of the article then ends with a call for additional tribal environmental innovation within this area. Ultimately, the article concludes that, by enacting environmental laws to meet their unique tribal needs, many tribes are creating and innovating in the field under their unique powers as separate sovereigns within the United States.

Revisiting the ideologies of planning law

Purpose – The aim of the research is to examine the legal ideologies of planning law proposed by Patrick McAuslan in 1980 and their operation in one key aspect of modern-day planning law in England and Wales in order to assess the balance between these ideologies today. Design/methodology/approach – In order to achieve this, the philosophical and theoretical foundations of the respective legal ideologies are revisited. The approach that follows is a mixed doctrinal and socio-legal one. The content of the law in certain key areas is established and then analysed against the framework of McAuslan's ideologies in order to establish the social context balance of the law. Findings – The paper concludes that, despite much change in law and policy, the balance between the three competing ideologies in the area of development control in the planning regime of England and Wales remains similar to that in 1980. Research limitations/implications – For publication as a research paper, the scope of the examination was necessarily restricted. Certain areas scrutinised by McAuslan are of less relevance today, but, nonetheless, there is clearly scope to revisit some of the other aspects of planning law considered in 1980 and, indeed, to expand the scope of analysis to other areas of environmental law. Originality/value – The paper takes a framework of legal ideologies that was proposed over 30 years ago and applies it to elements of the modern-day planning regime. The paper will be of value to both legal academics and those in the town planning discipline.

Environmental Law and Economics

Since the publication of Revesz and Stavins (2007), there have been some significant normative advances in the area of environmental law and economics. For example, the emergence of climate change as the area of central concern for environmental regulation has brought a great deal of attention to the question of how to discount benefits that accrue into the far future and primarily affect individuals not yet born. Also, the rise of behavioral law and economics has created a shift away from exclusive reliance on neoclassical models.But the most significant changes have been on the positive side. In particular, the traditional alignment of interest groups has come close to experiencing an about-face. Conservative, anti-regulatory groups traditionally favored cost-benefit analysis, market-based instruments, and decentralization. Progressive, pro-regulatory groups traditionally opposed these approaches. In recent years, however, the tables have often been turned. These shifts suggest that commitment to principles is secondary to commitment to substantive regulatory outcomes, with groups of both sides of the spectrum availing themselves of whatever argument will better promote their preferences concerning the stringency of regulation.

Dictionary of environmental and climate change law

This state-of-the-art Dictionary defines terms employed in international agreements, national legislation and scholarly legal studies related to comparative and international environmental law and the emerging law of climate change. In acknowledgement of China's growing role in this arena, each term also includes its pinyin translation in order to facilitate access to the Mandarin variants. The international community is developing increasingly complex environmental provisions and participating in a number of international treaties and agreements related to environmental law and regulation. The complicated and highly specific nature of environmental law has led to the development of localized terminology that is not easily understood outside its country of origin. Jointly prepared by scholars in China and the US, the Dictionary provides a linguistic bridge between English and Chinese speakers as well as an essential reference for those interpreting and applying international environmental law, multilateral environmental agreements, and domestic laws that implement these treaties. Students, scholars and practitioners in the area of environmental law will find this groundbreaking Dictionary an invaluable addition to their libraries.

Who is the Referee? Access to Justice in a Globalised Legal Order: A Case Analysis of ECJ Judgment C-240/09 Lesoochranárske Zoskupenie of 8 March 2011

In the 2010/2 issue of REALaw Jane Reichel - in her analysis of the preliminary judgment given by the Court of Justice in the Djurgarden-Lilla Vartan case - illustrated that, in particular in the area of environmental law, judicial control in a globalised legal order is a rather complex theme. On the basis of this judgment it seemed that it is to the ECJ to decide whether national conditions regulating access to justice are compatible with both the Aarhus Convention and EU law. The judgment in Case C-240/09 Lesoochranarske zoskupenie, illustrates once more that a straight answer to a simple question “who has the right to access to justice” is not always possible. Also Lesoochranarske zoskupenie shows that even the question “who decides who has access to justice” in environmental matters is a difficult one.

In legal limbo: Post-legislative guidance as a challenge for European administrative law

Post-legislative guidance is a regular feature of European Union law. It serves to elaborate upon the meaning and practical implications of European framework norms. This paper presents a case study on post-legislative guidance adopted in the area of climate change and operating at the interface between European and international law. It examines whether and when post-legislative guidance of this kind may be regarded as susceptible to European-level judicial review. It argues that although the European courts privilege substance over form in deciding which measures may be challenged, post-legislative guidance will frequently escape the scrutiny of these courts. The paper argues that the European courts' case law is premised upon a series of distinctions that operate to obscure the nature and impact of guidance as a governance form and that the European courts should create enhanced opportunities for judicial review. The paper considers what, concretely, this argument might mean for the development of European administrative law. While this paper focuses upon post-legislative guidance in the area of environmental law, the administrative law analysis presented is relevant also beyond this specific substantive sphere.

Pharmaceuticals in the Water Cycle Mechanisms for the Regulation of Environmentally Harmful Pharmaceutical Substances

AbstractPharmaceutical substances that accumulate in the water cycle can pose a lasting risk to animals and potentially even humans. This article outlines how pharmaceutical law and specific areas of environmental law (chemical, water and agricultural law) deal with this threat. It is shown that these laws fail to provide effective protection and, therefore, legal and socio-political strategies are proposed on how to better control and reduce the environmental risks posed by pharmaceuticals.

The Impact of Climate Change on Cultural Heritage Sites: Environmental Law and Adaptation

Climate change poses a severe threat to many cultural heritage sites. Threats include floods, increasing extreme weather events, desertification, deterioration of permafrost, and the decay of cultural landscapes. Protecting cultural heritage sites proves to be very difficult as they are very diverse. The key to successful mitigation is - in addition to reducing carbon emissions - to reduce stress from unsustainable activities, which may aggravate the negative impact of climate change. This paper argues that provisions from various areas of environmental law, such as heritage conservation law, pollution law, land use law, construction law, water law, environmental impact assessment law, and planning law, must be used in an integrated way with the aim of mitigating and adapting to the effects of climate change on heritage properties. Of particular importance in this context is the application of the precautionary principle when dealing with heritage sites.

Protecting Environmentally-Sensitive Areas and Promoting Tourism in "The Back Patio of the United States:" Thoughts about Shared Responsibilities in Ecosystem and Biodiversity Protection

I. INTRODUCTION II. WHY PROTECTED AREAS IN THE DOMINICAN REPUBLIC (OR ANYWHERE ELSE) MATTER A. What is an Environmental Protection Area? B. Extent of Dominican Biodiversity C. Importance of Protected D. Tourism: Engine of Protection or Destruction? 1. Lack of Economic Diversity 2. Distributional Justice Concerns: Privileged Tourism and Environmental Harm 3. Long Term Environmental Damage 4. Social Consequences of Environmental Damage III. LEGAL REGULATION AFFECTING DOMINICAN PROTECTED AREAS A. Dominican Law and Policy of Protected 1. Framework Law 64/00 2. Sectoral Law for Protected 3. Sectoral Law for Biodiversity Protection 4. The Problem of Presidential Decree Laws a. Recent Decree Laws as Threats to Environmental Protection b. Liberated Areas B. Lack of Coherence Between Laws & Efforts Affecting Environment and Protected C. Projects to Promote Implementation of Laws D. Enforcement of Dominican Protected Law IV. INTERNATIONAL LAW AND POLICY A. The Extent to Which Rich Nations Have an Obligation to Help Protect Biodiversity in Poorer Nations B. International Instruments to Protect Biodiversity 1. The Rio Declaration and Agenda 21 2. Convention on Biological Diversity 3. Cartagena Protocol on Biosafety C. Regional Controls: Implications of CAFTA-DR D. CAFTA-DR's Environmental Provisions 1. Article 17 2. Key Definitions within CAFTA-DR 3. Advancing Environmental Claims within CAFTA-DR V. SEEKING SOLUTIONS FOR BIODIVERSITY PROTECTION A. Responsibilities of Host Nation B. Dominican Case C. Responsibilities of Richer Nations 1. Global Responses 2. A Global Solution of National Dimensions I. INTRODUCTION Leonel Fernandez, President of Dominican Republic, famously declared that his nation of over nine million people (1) exists in the back patio of United States. (2) The locution is striking from a Dominican president, notably because of repeated involvement--some would say interference--of U.S. in Dominican affairs during course of its history. (3) But Fernandez is a sophisticated and erudite scholar, as well as a politician, and can speak with authority on history of Americas from before Monroe Doctrine and since. (4) Without question, he used phrase with deliberation. (5) For Fernandez, phrase thus doubtless represented many things, among them economic and social dependence of Dominican Republic upon United States, and history of expansionism and territorial control that marks nearly two centuries of U.S. involvement with Caribbean nation. (6) The phrase also resonates in area of environmental law and policy, although likely this did not cross Fernandez' mind when he used it. Specifically, proximity of Dominican Republic to continental U.S. and to its Caribbean possessions to east--Puerto Rico and U.S. Virgin Islands--begs questions about designation of particular areas for special environmental protection, management and oversight. At a general level of inquiry, this is to ask whether richer nations like U.S. may have responsibilities to protect ecosystems and biodiversity beyond their territorial borders without a corresponding right to interfere in affairs of those nations. Specifically, in context of this paper, Fernandez' phrase compels us to ask whether United States bears responsibility for environmental protection in Dominican Republic. This is a complicated question and needs to be unpacked. Importantly, too, this question has ramifications that go well beyond relations between a small and, in geopolitical terms, relatively unimportant country and current world superpower. …

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

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

Smart Regulation and the Revised Batteries Directive: Legislated Taxation Systems and Collection Schemes

Summary: This Art. is more than mere analysis of law and policy in relation to the revised Batteries Directive. It describes the practical, legal and economic underpinning of voluntary agreements, also known as environmental agreements. It seeks to reveal that voluntary agreements provide a useful complementary tool to command and control models and economic instruments. The key elements of a voluntary agreement that could be implemented under the revised Batteries Directive have also been drafted and provided. This voluntary agreement is sufficiently flexible so that it may be applied by stakeholders to many other areas of environmental law whether at the Member State or European Community level. The author argues that in some cases they provide advantages over command and control models by aiming for an ``environmental consensus'' that anticipates and plans for strategic interventions to reduce or prevent environmental pollution within a more flexible framework that allows for a confluence of science and industry know-how while reducing regulatory and related cost inefficiency. The first part of the two-part Art. included coverage of economic instruments; producer responsibility voluntary agreements schemes; and deposit return systems. In the second part of this Art. the author considers legislated taxation or charging systems, government-led collection schemes and industry-led programmes before providing a conclusion and making recommendations.

Smart Regulation and the Revised Batteries Directive: The Future of Voluntary Agreements

Summary: This article is more than mere analysis of law and policy in relation to the revised Batteries Directive. It describes the practical, legal and economic underpinning of voluntary agreements, also known as environmental agreements. It seeks to reveal that voluntary agreements provide a useful complementary tool to command and control models and economic instruments. The key elements of a voluntary agreement that could be implemented under the revised Batteries Directive have also been drafted and provided. This voluntary agreement is sufficiently flexible so that it may be applied by stakeholders to many other areas of environmental law whether at the Member State or European Community level. The author argues that in some cases they provide advantages over command and control models by aiming for an 'environmental consensus' that anticipates and plans for strategic interventions to reduce or prevent environmental pollution within a more flexible framework that allows for a confluence of science and industry know-how while reducing regulatory and related cost inefficiency. This first part of the two-part article includes coverage of economic instruments; producer responsibility voluntary agreements schemes; and deposit return systems.

Multilateral Environmental Agreements: Who Makes the Binding Decisions?

Due to the fact that the EC has legislated in most areas of environmental law, it is also competent to implement most Conferences/Meetings of Parties COP/MOP) decisions. Practice within multilateral environmental agreements MEAs), especially as regards the adjustment procedure of annexes/appendices, prove that adjustments can de facto result in substantive changes of the legal obligations of the contracting parties that could not have been foreseen, and this even against the will of a minority of parties. In this article the author shortly describes the legal structure that is common to most MEAs; discusses the question whether COPs/MOPs can be categorised as organs of an international organisations; and finally turns to the issue of communitarisation of binding decisions adopted within MEAs.