This chapter examines the role of adjudication systems in handling environmental disputes. It first considers the role of the judiciary in relation to the environment and its place within the context of value-driven decision-making. It then explores the challenges raised by environmental litigation and their impact on environmental adjudication systems, along with various responses to them. It also describes different models for judicial adjudication of environmental disputes that take into account jurisdictional specialization, judicial specialization, scope and hierarchy of the court’s review, specialist cost and standing rules, and access to legal and scientific advice. Case studies are is used to illustrate bespoke solutions to environmental adjudication. The chapter concludes with an analysis of the relative merits of the adjudicative models mentioned above, and what this implies about environmental adjudication in general.
This chapter examines the role of environmental assessment (EA) in mediating between the scientific, political, and normative elements within environmental decision-making. It first provides an overview of the origins of EA and how it spread worldwide before considering the different theoretical models that have been developed to explain the structure and role of EA as an institutionalized approach to environmental decision-making. It then discusses the elements of environmental impact assessment (EIA) as a policy instrument, namely: application, screening, scoping, participation, decisions, and follow-up and monitoring. The chapter concludes with an analysis of the convergence and divergence in EA practice and how the diverging approaches to EA may affect the degree or type of influence that assessment processes have on environmental outcomes.
Ian H. Rowlands
What is ‘atmosphere’ and what is ‘outer space’? The term ‘atmosphere’ is sometimes used interchangeably with ‘air’. Moreover, it is often assumed that ‘outer space’ is simply the area above and beyond ‘air space’ (another term often used). While understandings such as these are certainly reasonable for most discussions, the effective development of international environmental law may well demand more precise definitions. This article provides an overview of key atmospheric and outer space environmental challenges that have been – and continue to be – addressed by international environmental law. It examines transboundary air pollution, ozone layer depletion, global climate change, and outer space. For each of these issue areas, the article describes a particular environmental problem (or set of environmental problems). It also reviews key elements of the international legal response (including especially significant agreements), focusing on innovative approaches taken as part of this response. In addition, the article discusses transboundary transport of industrial pollutants as well as major industrial accidents.
This chapter examines atmospheric pollution legislation from a comparative perspective. It begins with a discussion of the definition and legal boundaries relevant to atmospheric pollution, citing a few events which raised the attention on air pollution issues in different national jurisdictions. It then provides a brief overview of the regulatory regime for air pollution that exists at the international level before analysing air pollution control in a transboundary context. It also compares three models of regulatory intervention and areas of activity: the European Union, the United States, and China. In particular, it describes the most relevant features contained in the legislation developed within those three jurisdictions to address air pollution. Finally, it explores four air pollution issues in the European Union, the United States, and China, namely: the regulatory system for air pollution control, legislative approach to air pollution control, instrument choice, and the role of courts.
This chapter examines the structure and substance of environmental law in Australia. It begins with a discussion of how powers are distributed in environmental governance in Australia, taking into account the law’s constitutional basis, and more specifically the division of legislative capacity between the states and the Commonwealth, as well as the relationship between Commonwealth and state legislation in practice. It then considers environmental protection, with a focus on protection from pollution and harm, conservation of environmental values, and the emergence of a complex system to facilitate ecologically sustainable development. It also analyses the implementation framework for Australian environmental law, emphasizing the importance of credible information and analysis in making decisions about the future use of the environment and about past actions impacting on it. Finally, it explores the nature of sanctions and remedies, including compliance with liability rules and decision-making rules as well as the nature of environmental litigation.
In the past century, a large number of bilateral, regional, and global agreements have been adopted relating to the protection, preservation, conservation, and management of the Earth's terrestrial and marine species and genetic resources. Despite the vast amount of international law relating to the conservation of biological resources, species, habitat, and genetic diversity loss is now considered to be reaching crisis proportions, with potentially catastrophic consequences for humankind. This article examines the current international legal regime for the protection of the Earth's biological resources. It begins with a discussion of the meaning of the term ‘biological resources’, the philosophical rationales for their protection, and the theoretical approaches thereto. The article then examines the various legal regimes and regulatory measures that have been adopted. The types of regimes for the conservation of biological resources include the regulation of harvest (harvest of species and genetic resources), habitat protection, and regulation of trade (control of exploitation and introduction of alien or invasive species). The article also considers measures regulating direct threats and indirect threats.
Antonio Herman Benjamin and Nicholas Bryner
This chapter examines Brazil’s environmental law. It first provides an overview of Brazil’s constitutional structure as it relates to federalism and the environment, taking into account how the Constitution grants federal (and state) ownership of and power to manage certain natural resources. It then considers the structure and substance of environmental law in Brazil, focusing on the major bodies of law such as the National Environmental Policy Act of 1981, the Forest Code (2012), and those dealing with protected areas, environmental crimes, water, climate change, and solid waste. The chapter goes on to discuss the implementation framework for Brazil’s environmental law, including administrative and judicial bodies, as well as the special and important role of environmental public prosecutors and the judiciary. Finally, it analyses the application of law in combating unsustainable deforestation and land use changes in the Amazon.
Karen Alvarenga Oliveira
This chapter examines the climate change policy of Brazil. In 2010 at the Sixteenth Conference of Parties in Cancún, Brazil announced its voluntary national target of significantly reducing greenhouse gas (GHG) emissions between 36.1 per cent and 38.9 per cent of projected emissions by 2020. These targets were defined in the Brazilian National Policy on Climate Change (PNMC). The PNMC establishes principles, guidelines, and economic instruments for reaching the national voluntary targets. It relies on sectoral plans for mitigation and adaptation to climate change in order to facilitate the move towards a low-carbon economy. The PNMC defined various aspects related to the measurement of goals, formulation of sectoral plans and of action plans for the prevention and control of deforestation in all Brazilian biomes, and governance structure.
Steven R. Ratner
Business has a central role in international environmental law. Both treaties and treatises regard private economic actors as secondary players, and see states as the overwhelmingly dominant targets and prescribers of environmental law. This article examines the roles and goals of business entities with respect to international environmental law. It then considers how international law has accommodated the place of business in environmental policy with respect to two key issues: corporations as the target of legal obligations; and corporations as participants in the process of international environmental law, particularly with respect to law making and implementation. The article also looks at business-initiated non-governmental organisations, both those composed of, or representing, businesses within one state, as well as those with a more international profile. It examines business and environmental regulation, focusing on two visions of international business. Finally, the article analyses business as the target of international environmental law duties, civil liability conventions, soft regulation, corporations as prescribers of norms, monitoring and enforcement of business behaviour, and litigation.
This chapter surveys Canadian environmental law, including the allocation of environmental powers, the choice of regulatory models, and the implementation of environmental laws. Notable Canadian accomplishments include broad municipal powers, pioneering experimentation with sustainability assessment, North American leadership on carbon taxes, and a history of innovation with indigenous land claims. Overall, however, the chapter challenges Canada’s image as an environmental law leader, documenting its timid version of environmental federalism, generally conservative judiciary, limited policy imagination, feeble pursuit of environmental justice, excessive levels of administrative discretion, frequent bouts of deregulation and fiscal austerity, and largely rhetorical embrace of environmental rights, the polluter-pays principle, the precautionary principle, and sustainable development. Against this background, Canadian indigenous peoples are vigorously reasserting their environmental sovereignty and laws. Reconciliation between settler and indigenous societies is amongst the greatest challenges and opportunities facing Canadian environmental law today.
The capture and long-term storage of carbon dioxide from power plants and other industrial installations may prove a key technology in climate change abatement strategies. Regulatory frameworks for carbon capture and storage (CCS) are now being developed in a number of jurisdictions. The European Union produced the first comprehensive legislation on the subject in 2009, which provides a compelling example of challenges associated with the design of regulation dealing with a novel technology. This chapter identifies three issues, each of which reflects aspects of regulatory legitimacy: the extent to which states within a federal or quasi-federal system should have the legal discretion to reject a technology; the way in which regulation provides for opportunities for public participation and engagement in issues concerning the new technology; and whether, and at what point, the state should assume responsibility for storage sites, given the long timescales necessary for secure storage.
Andrew Shoyer, Jung-ui Sul, and Colette van der Ven
This chapter examines the phenomenon of carbon leakage, which is an increase in carbon emissions as a result of businesses moving to other states without carbon reduction measures. Pursuant to the commitments established by the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol, many developed states imposed numerous greenhouse gas emission (GHG) targets, while most developing countries have not adopted any carbon reduction measures. Carbon leakage remains an area of great concern to states and industries seeking to reduce carbon emissions, as it has the potential to undermine the effectiveness of carbon reduction measures and hurt the competitiveness of the industries that decide to remain in those states. The chapter outlines the measures taken to combat carbon leakage. Specifically, it highlights carbon leakage prevention measures under the European Union Emissions Trading Scheme and under similar carbon regulation measures in South Africa and the United States.
David Freestone and Clive Schofield
This chapter assesses the legal regime of the Caribbean Sea and Gulf of Mexico. It first examines regional maritime claims before reviewing marine activities, environment, and resources within the Caribbean. It then considers the current status of the delimitation of maritime boundaries in the Caribbean Sea, through agreements as well as judicial settlement. It highlights remaining problems and provides some concluding observations.
Amy Cutter-McKenzie-Knowles, Marianne Logan, Ferdousi Khatun, and Karen Malone
This chapter presents a historical and policy cartography of environmental education. It begins with a brief historical overview of significant environmental education initiatives, focusing on how they became part of a highly political and intergovernmental agenda and how the concept of sustainable development has infiltrated the field of environmental education. It then considers the neoliberal relationship between environmental education and sustainable development before providing a cartography of environmental education policies and an analysis of ‘currents’ (the complex and evolving perspectives and pedagogies) in the field. Two case studies of environmental education are discussed, namely, the Climate Change + Me project in Australia and the story of a teacher named Rose in Bangladesh who inspired environmental consciousness and sustainable practices amongst her students.
Louis J. Kotzé and Erin Daly
This chapter presents a cartography of environmental human rights, with particular emphasis on the current and potential contribution of human rights in augmenting global environmental protection and justice. It first provides a short account of the relationship between human rights and the environment, including the increased popularity of human rights as environmental protection measures, and explains the reasons the convergence between them. It then considers the historical milestones in the development of environmental human rights, along with the different manifestations of the rights-based approach (substantive political environmental rights, socio-economic environmental rights, procedural environmental rights, substantive right to a healthy environment, and rights of nature). Specific examples in international, regional, and domestic law where these forms of the rights-based approach occur are given. The chapter concludes with a discussion of three overarching criticisms of environmental human rights, one of which asserts that rights-based approaches have been ineffective in securing human rights.
Since the early days of modern public international law, the state has been the most important subject thereof. However, today, it is neither the sole, nor necessarily the primary, actor in international (environmental) relations. In recent years, the role of the state and, notably, the ability of the state to address environmental risks and threats, have increasingly come to be scrutinised. While states' standard setting remains important, commentators have argued that the ability and willingness of states to implement and enforce such standards have major weaknesses. Nevertheless, the state remains a truly important actor in international relations. It forms part of international governance, which has become multilevel governance. This article discusses the changing role of the state in international environmental governance. It examines states as authors, addressees, and guardians of international environmental law. The article also considers the over-estimation of Westphalian concepts of sovereignty, international environmental agreements, international environmental obligations, statehood as an element of a global system of environmental governance, and the role of the state in the transformation of the international legal system.
This chapter explores the legal understanding of climate change damages in public international law. It shows that international law has been dealing with transboundary damages since its inception. Damages, whether material or immaterial, have been subject to many inter-state disputes presided upon by international courts and tribunals. The United Nations Framework Convention on Climate Change established the Warsaw international mechanism for loss and damage to address loss and damage associated with impacts of climate change, including extreme events and slow onset events, in developing countries that are particularly vulnerable to the adverse effects of climate change, under the Cancún Adaptation Framework. The Warsaw international mechanism is also tasked with the promotion and the implementation of approaches addressing loss and damage associated with those adverse effects. The chapter also describes the growing trend of states who suffer from climate change seeking remedy from other states for their losses.
Daniel A. Farber
This chapter looks into a specific dimension of adaptation to climate change—disaster risks. It reviews the prospects for increases in disaster risk due to climate change and considers arguments that governments have a duty under international law to respond to these increased risks. Climate change greatly accentuates disasters, putting even more stress on disaster response systems. The list of potential disasters is long, and includes heat waves, droughts, crop failures, wildfires, and outbreaks of illness. Besides the direct threats to human life and property, impacts on food supplies could be severe due to pests, water scarcity, diseases, and weather extremes. The chapter also addresses all phases of the disaster cycle: mitigation, emergency response, compensation, and rebuilding, with rebuilding completing the circle by including (or failing to include) mitigation measures to deal with the risk of another disaster event, and discusses how climate change intensifies problems at each stage.
Justin Gundlach and Michael B. Gerrard
This chapter focuses on policies designed to mitigate and adapt to climate change and policies that encourage transition away from fossil fuels and toward greater energy efficiency and low- or non-emitting energy sources. It describes categories into which countries’ legal and policy approaches to climate change and energy transition can be divided and illustrates them with select examples from various jurisdictions. The chapter also examines regulations and policies to address climate change and energy transition, the roles of key international agreements, and factors important to the effectiveness and transferability of policies. The discussion covers the scope and structure of law governing climate change and energy transition; policies at the national, sub-national, and local levels; executive and legislative roles; litigation over climate change policies; and substantive provisions relevant to energy efficiency and electrification, renewable energy, and nuclear energy.
Alan Boyle and Navraj Singh Ghaleigh
This chapter discusses the various shortcomings of the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol. As a ‘framework convention’, the UNFCCC itself does not regulate climate change but only creates a basis for negotiating multilateral solutions. The Convention’s most evident weakness, as demonstrated during the Marrakesh Accords and the Copenhagen negotiations, is the dependence on the ability of the parties to reach the necessary agreement within a timescale. Complementary to the Convention, the Kyoto Protocol establishes quantitative emission restrictions to advanced industrial states, or Annex I parties. However, the Protocol only focuses on greenhouse gas (GHG) emissions rather than on consumption, a reason which led to Canada’s withdrawal. According to international governance scholar Oran Young, these problems emerge as a result of the climate change regime not being based on ‘principles of fairness’ that are broadly acceptable major players.