Context Of Environmental Law Research Articles

Balancing Risk and Caution: The Precautionary Principle in Indonesian Environmental Law Context

This paper explores the application of the precautionary principle within the framework of Indonesian environmental law, emphasizing the delicate balance between risk assessment and precautionary measures. It examines the evolution of the precautionary principle in Indonesian legal discourse and its integration into environmental policy-making and decision-making processes. The analysis sheds light on the challenges and opportunities inherent in applying the precautionary principle within Indonesia's diverse environmental contexts. It highlights instances where precautionary measures have been effectively employed to mitigate environmental risks, while also addressing concerns regarding the potential for regulatory overreach and hindrances to economic development. By delving into case studies and legislative frameworks, this paper provides insights into how the precautionary principle is interpreted and operationalized within Indonesian environmental law. It underscores the importance of incorporating scientific uncertainty and environmental ethics into policy formulation, while also emphasizing the need for flexibility and adaptability in responding to emerging environmental threats. Furthermore, the paper discusses avenues for enhancing the implementation of the precautionary principle in Indonesia, including capacity-building initiatives, stakeholder engagement, and the promotion of interdisciplinary research and collaboration. In conclusion, the paper highlights the significance of striking a balance between risk assessment and precautionary action in Indonesian environmental law. It underscores the importance of a nuanced approach that considers scientific evidence, societal values, and the principles of sustainable development in addressing environmental challenges while fostering economic growth and social welfare.Precautionary Principle

The concept structure and main characteristics of environmental law and order

In this study, the authors analyze and consider the concept, its legal and methodological aspects, the structure and internal content of environmental law and order, which is one of the main elements enshrined in the basic law of the country. In the epoch of the Anthropocene, environmental legislation and management in the sphere of interaction between society and nature are quite naturally changing. The authors believe that in the new realities of the changing dynamics of environmental management, the role of studying the legal content and structure of environmental law and order is especially relevant. The problems of national environmental legislation, its relevance, timeliness and the necessary coverage of regulatory norms, relevant public relations raises some questions. Such as, and how effective is the social, legal provision of environmental safety in the new realities of environmental threats. For example, environmental man-made disasters, natural disasters caused by global warming, the greenhouse effect, a sharp deterioration in the quantitative and qualitative state of atmospheric air, the ongoing pollution of the oceans and water resources in general, the shortage of drinking water and, significantly, global depletion and the real threat of pollution of the earth. In this regard, we can conclude that there is a "paradigm shift" both in national environmental legislation and in the theoretical aspects of environmental law, the state-legal mechanism of management, and also recognizes the need for a new role in environmental legislation and in the theoretical aspects of environmental law, allowing it to quickly and effectively meet the new dynamics of the changing context of environmental law. There is an urgent need at the present stage of development to increase the growing level of ecological legal awareness of the individual as an element of ecological law and order. Keywords: environmental law, environmental awareness, environmental law and order, environmental protection, environmental education.

Notas sobre os assim chamados “litígios climáticos” na Alemanha – O Caso Lliuya Vs. Rwe

O amplamente difundido e cada vez mais desenvolvido direito das mudanças climáticas, tem levado também a um incremento do número de litígios em esfera judicial, administrativa, arbitral, seja no plano do direito interno dos Estados, seja no âmbito do direito internacional público e privado. Nesse sentido, a análise de casos concretos, à luz de precedentes judiciais e não judiciais se revela fundamental, porquanto necessária ao desenvolvimento, tanto de uma teoria, quanto de uma prática eficaz da litigância ambiental. Dentre os países que mais se destacam historicamente em termos de legislação, literatura e jurisprudência relativamente à proteção do ambiente, inequivocamente a Alemanha ocupa posição cimeira. Diversos litígios climáticos e respectivas decisões judiciais têm merecido um olhar atento dos observadores externos com vistas à sua análise do ponto de vista comparativo. No presente texto, o que se pretende é apresentar e discutir é uma das demandas judiciais climáticas que mais ganhou notoriedade, designadamente, o caso Lliuya v. RWE, objeto precípuo do presente estudo e que aqui se procura apresentar e analisar, na perspectiva de sua relevância para uma boa litigância climática. Outrossim, tal análise será levada a efeito mediante a inserção do precedente referido no contexto mais alargado do direito ambiental e da litigância ambiental na Alemanha.

Criminal law as a preventative tool of environmental regulation: compliance versus deterrence

The effective enforcement of environmental law is an issue which continues to engender considerable academic debate. The conclusions that may be drawn from such debate will have implications not only for the future of environmental law but also the wider regulatory reform agenda. This article commences with several noncontentious propositions. First, any regulatory regime ought to place considerable emphasis on preventing harm; within the context of environmental law, this view is encapsulated by the preventative principle. Secondly, one may be tempted to treat the criminal law as a purely reactive or curative mechanism were it not for the deterrent effect associated with the imposition of criminal sanctions. Therefore, the initial premise is that if environmental law is to become more preventative in scope, policymakers ought to consider how the deterrent effect of environmental criminal law may be bolstered. Academic publications and official reports are replete with assertions that the fines imposed by the courts for environmental crime are lamentably low. A preoccupation with the level of fine may lead one to overlook the fundamental importance of the likelihood of apprehension as an essential ingredient of the deterrence formula. Mainstream criminological discourse provides clear evidence that the probability of apprehension has a greater influence on deterrence than severity of sanction. In this context, the enforcement style adopted by the relevant enforcement agency is crucial; in particular, whether the style adopted augments the perception that apprehension is more probable. This article proceeds to argue that many of the assumptions on which the compliance style is based may be questioned, if not totally undermined. It is contended that a transition from compliance-orientated enforcement towards an approach more focused on deterrence has the potential to enhance the deterrent, and by extension the preventative effect, of environmental criminal law.

Executive Review and the Youngstown Categories: Vulnerability of Environmental Regulations to Unbounded Executive Review

[C]omprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country . . . . -Justice Jackson The power of executive review remains imperfectly limited and defined—it therefore holds such potential dangers and advantages. By executive review I mean the power of the President to interpret the law and determine for himself whether a given law or provision is constitutional. Most commentators agree that this power exists legitimately in one form or another. But some argue that it is virtually unbounded, save for the president’s own sense of deference to the other branches and his self-interest to remain in office. Such a comprehensive power surely is as dangerous as that of which Justice Jackson warns in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, if not more so. Moreover, if fully utilized, executive review would leave the judiciary with no authority, save over itself. Unbounded executive review could also be used as a tool to undermine well-established legal doctrines which underpin entire fields of regulation, especially with respect to environmental law, as discussed herein. If left unchecked by any means with real bite, executive review has the potential to turn the Executive into a truly despotic branch. This Note endeavors to determine the ambit of the validity of executive review, as well as to find such a means to delimit the power of executive review, hopefully without simultaneously removing from it all practicality. Part II provides some of the classic arguments supporting the validity of executive review, as well as a few of my own inspired by the methods that Professor Akhil Amar advances in his book, America’s Unwritten Constitution: The Precedents and Principles We Live By. Part III outlines the different types of presidential action that rely on the power of executive review, and provides a framework for analyzing and scrutinizing the various uses and forms of executive review. While this Note does not systematically outline all of the arguments criticizing the validity of the power, to the extent that they attempt to refute the power altogether, they have been satisfactorily rebutted elsewhere. However, this Note builds upon some of those critiques in Part IV, in arguing for the limitation of executive review. Part IV first evaluates Professor Michael Stokes Paulsen’s arguments for essentially unbounded executive review. Next, it theoretically applies executive review in the environmental law context in order to highlight the need to limit the power, as it is perhaps the field most vulnerable to the potential abuses of executive review. Part IV then looks to recent judicial precedent as a possible foundation for limiting the power, and addresses some practical considerations relevant to any such limitation. Finally, Part V provides a brief conclusion.

Komentarze do ustaw łowieckich (czeskiej, słowackiej i polskiej)

The subject of this paper is a synthetic view of the commentaries on three hunting acts in force: Czech of 27 November 2001, Slovak of 16 June 2009 and Polish of 13 October 1995. The authors of this paper are interested in eight commentaries (two Czech, one Slovak and five Polish) and seek an answer to three basic questions: what is the concept of work presented by commentators, in which way they put hunting law in a larger context of environmental law or nature protection law and what determines the attractiveness of a commentary as a tool to explain terms and institutions of hunting law.

Book review: The Habitats Directive in its EU Environmental Law Context: European Nature’s Best Hope?

Book review: The Habitats Directive in its EU Environmental Law Context: European Nature’s Best Hope?

Ancient Maxim, Modern Problems: De Minimis, Cumulative Effects and Risk-Based Regulation

This article considers the questions of when and how the ancient common law maxim de minimis non curat lex – the law does not concern itself with trifling matters – ought to be applied in Canadian environmental law. These questions are important because their answers determine whether certain conduct that results in some level of environmental harm will – or will not – be subject to a given regulatory regime, which in turn creates the potential for environmental degradation through cumulative effects. The first part observes that that there is presently considerable confusion about whether the maxim is even available in the Canadian environmental law context. Concluding that it is under certain legislative circumstances, the second part argues that the prevailing conception of de minimis as a single-step test concerned only with the magnitude of environmental harm in isolation is incorrect; rather, the foundational jurisprudence points to a two-step test that actually considers the potential for cumulative effects. This part also examines recent developments in cumulative effects assessment and the emerging paradigm of risk-based regulation in order to shed some modern light on this ancient maxim’s application. The paper concludes by considering the implications of applying de minimis in this way for regulators, industry and the public.

Use of Matching to Evaluate Environmental Regulatory Enforcement

In this paper, we measure the treatment difference between administrative and criminal enforcement of environmental violations. Our aim is to make a comparison between similar offenses and evaluate how they would have been treated in both enforcement tracks. This paper can help to evaluate the compliance and welfare outcomes in a complementary criminal/administrative enforcement system with an enforcement system relying on criminal prosecution only. Given the discussions at European level on the most appropriate enforcement system and the different practices at national level, answering our research question is quite relevant. We apply statistical matching techniques on a unique dataset of environmental enforcement cases to control for sample selection bias and approximate the setup of a randomized experiment. We do the matching on case characteristics and estimate the average treatment effect for similar cases. Overall, we find that the marginal penalty is slightly lower in administrative enforcement compared to criminal enforcement, but that this difference would be widely overestimated without the matching procedure. Our methodology can be more generally applicable than the environmental law context that we use: it can help to control for caseload difference, which is a typical problem in law enforcement evaluation, and allow for correct causal inferences in a wide variety of law enforcement evaluation settings.

Verwissenschaftlichung des Rechts und Ihre Grenzen -Entwicklung des Umweltvertralichkeitspruungsrechts in Korea

This article tackles the issue of "science and law" in the "risk society." by analyzing recent development of the ENvironmental Impact Assessment System in Korea. The conditions of uncertainty, ignorance and indeterminacy constitute a serious challenge to traditional conceptions of science as an arbiter of ultimate truth and authority. Current status of academic discussions of the issue shows that enhanced use of science in law, especially adoption of precautionary measures for better protection of environment and ecological diversity does not necessarily bring about successful outcome, either due to the political nature of scientific inquiry and knowledge or due to the scientific indeterminacy itself. More important than demystifying this imperfection of scientific knowledge, however, is often recognizing the way how the science is being handled at bar, at agency office or in parliament. Understanding dialectic of science, law and policy, so real truth about science in law is an indispensable prerequisite for our search for a new model of environmental law. Politics of law in dealing with "science and law" issues and other aspects of separation of power need to be therefore more realistically addressed before we proceed to reform the existing regime of environmental impact assessment. in this vein, the article emphasizes the crucial role of the court as a truth-finding forum embedded in a vitalized litigation culture, while it proposes a series of ideas as fundamentals for a new model of environmental law: optimization of science and law relationship, need for co-options in environmental lawmaking, devising and developing "environmental law with learning ability" through enhanced utilization of science, redistributing roles among various actors in polycentric context of environmental law and applying conflict resolution approach to environmental policy making.

Equitable Defenses against the Government in the Natural Resources and Environmental Law Context

Equitable Defenses against the Government in the Natural Resources and Environmental Law Context

Sustainable Development and the Search for a Better Environment, a Better World: A Work in Progress

I. INTRODUCTION In the ever-evolving development of sustainable development(1) principles and norms, various analytical approaches have emerged, all with the aim of providing a conceptual framework which embodies the often competing issues of and national environmental protection and conservation, human rights and economic development. At the global level, the North-South(2) dynamic has been an inherent component of these scholarly, political and economic discussions, most of which have examined or sought to achieve consensus on the accommodation of what is fair, just and equitable. The task has not been an easy one, to say the least. One approach has involved the examination and development of a right to environment from a human rights perspective in an attempt to formulate further the environmental law paradigm which is now inherently interwoven with sustainable development principles. Notwithstanding this valiant and on-going attempt to integrate environmental protection objectives with human rights principles, this paper considers the extent to which the collective human right to development is found in the environmental law context of sustainable development. With the aim of continuing and expanding the discussion on sustainable development, this paper focuses on the extent to which specific human rights are integrated into three of the texts that emerged out of the United Nations Conference on the Environment and Development (Rio de Janeiro, June 1992) (UNCED)(3). It is a departure from current analytical approaches which have defined the existence of environmental human rights within the context of the existing human rights regime. Specifically this paper examines some of the right to development provisions of the Rio Declaration, the Convention on Biological Diversity (CBD) and the United Nations Framework Convention on Climate Change (UNFCCC). These collective human rights provide another dimension to environmental protection that is at the core of sustainable development. Both the right to environment and the right to development find their bases in human rights. Both speak to human dignity and the quality of life. First, Part II of this article examines the development and existence of the right to environment. Its evolution is inherently based upon human rights principles and norms. Its current anthropocentric characterization is not without its opponents who argue in favor of a more ecocentric focus. Next, Part III explores the evolution of the right to development. As with the right to environment,(4) the right to development is inherently interwoven with human rights considerations, and is ultimately integrated into sustainable development instruments that strive to meet environmental protection and economic development objectives in a fair and equitable way. This part surveys relevant documents, including the Universal Declaration of Human Rights, the United Nations' New International Economic Order (NIEO) resolutions, the Stockholm Declaration and the UNCED texts, all of which reflect the evolution of the intersection of human rights, the right to development and environmental protection. Finally, Part IV examines the common goals of environmental protection, economic development and human rights. It is precisely these linkages that provide a positive and optimistic perspective to the outcomes of UNCED and in the end, another basis for the hopeful furtherance of, and commitment to, the global equity that is the fundamental promise of sustainable development. II. ENVIRONMENTAL HUMAN RIGHTS AND THE RIGHT TO ENVIRONMENT A. Human Rights Linkages Although the international community has already spilled much ink and consumed forests of paper developing environmental instruments which hold substantial promise for alleviating some environmental problems, those instruments have not done enough. …

Attorney Client Confidentiality in the Criminal Environmental Law Context: Blowing the Whistle on the Toxic Client

Attorney Client Confidentiality in the Criminal Environmental Law Context: Blowing the Whistle on the Toxic Client