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.
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.
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.
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.
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.
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.
This chapter discusses India’s role in international climate law and its domestic law on climate change, and demonstrates the limits of its legal position in addressing climate-related threats. Climate change presents a complex challenge for India, which is reflected in its evolving set of climate change laws and policies. Aside from being one of countries most vulnerable to climate change, India is home to some of the world’s poorest people whose lives and property are threatened by climate change. The government has adopted various initiatives to comply with the Kyoto Protocol. The central national initiative on climate change is the National Action Plan on Climate Change (NAPCC). Action under NAPCC is premised on the principle of sustainable development, which for the purposes of climate change means achieving growth while at the same time minimizing greenhouse gas emissions.
This chapter is concerned with EU’s climate change law and its impact on climate change action at a global level. It investigates whether the international climate change regime ‘tightens’ its own standards so as to match EU climate change law. The corpus of EU climate change law is codified in the Climate and Energy Package, which aims to provide a comprehensive and integrated climate change framework. It includes measures promoting the use of renewable energy, specifying and thus helping to monitor and reduce greenhouse gases from fuel, setting standards for new passenger cars, establishing a framework for the geological storage of carbon dioxide, outlining the effort of Member States to reduce greenhouse gases to meet the 2020 commitments, as well as revising the EU emissions trading regime (ETS).
This chapter examines the strengths and weaknesses of ‘command and control’ environmental standards. It argues that a key shortcoming of such standards is a ‘conceptualization gap’: i.e. limited conceptualizations of how the natural environment works, and how it is influenced by human actions. After considering a working definition of command and control standards, the chapter discusses their significance, how they are related to self-regulation and economic incentives, and their implementation deficit. The chapter then explains how applied science models that analyse environmental risks can help to close the ‘conceptualization gap’ that limits the significance and effectiveness of command and control environmental standards. It suggests that closing the conceptualization gap can involve to rely on integrated and harmonized standards, which, in turn, can be achieved by using the abstract, conceptual, and thus potentially trans-jurisdictional ‘language of science’. To this end, the chapter introduces the DPSIR (Drivers, Pressures, States, Impacts, and Responses) applied science model, describing its features and highlighting its limitations in providing an integrated view of environmental risks.
Jorge E. Viñuales
This volume examines the building blocks of environmental law across different jurisdictions. More specifically, it provides a cartography of environmental law, with a focus on its underlying logic, main arrangements and their variations, and how it is embedded within the broader legal arrangements developed to tackle other questions. In this context, this preliminary chapter provides an overview of the comparative method as it applies to the overall research project leading to the present volume. It discusses descriptive and evolutionary approaches, the conceptual approach, the functionalist approach, the factual approach, legal formants, the contextualist approach, and legal transplants. It then considers a range of methodologies proposed by comparative law experts, including the bottom-up functionalism and top-down functionalism, before explaining the methodology used for the organization of this book. The chapter concludes by summarizing a tentative structure of comparative environmental law as a single overall technology.
This chapter examines models of regulation for historical pollution of sites. It begins with an overview of the various challenges involved in a comparative study of the rules regarding the clean-up of contaminated sites, in part due to the existence of a huge variety of global approaches to the question of contamination as well as the patchwork and complex response. This chapter addresses these challenges by analysing not only the technical and design-based points of comparison, but also the normative premises upon which such design decisions are based. It considers various elements of regulatory ‘models’ for contaminated sites, emphasizing the importance of having a unified aim which underpins every regulatory regime. It also outlines three parameters that need to be assessed to get a sense of the different models for legal responses to polluted sites: the definition of harm/pollution/contamination, liability, and models and goal of remediation.
This chapter discusses the distribution of powers in environmental policy, with emphasis on vertical—rather than horizontal—division of powers. The goal is to identify prominent model approaches and important differences in power distribution, as well as the pros and cons, and to derive lessons for future governance reforms. The chapter begins with an analysis of the distribution of powers in multilevel environmental governance, taking into account the distinction between federal and unitary systems; the role of administrative regulation and of executive competences; fiscal, taxing, and spending competences; and the role of local community governments and self-governing bodies. The most relevant normative concepts of vertical power distribution are then examined, with a particular focus on how centralization or decentralization of government powers is motivated or could be motivated. The chapter concludes with an assessment of the ‘telic’ approach of cooperative steering for functional distribution of powers.
Jason Czarnezki, Margot Pollans, and Sarah M. Main
This chapter examines whether and how eco-labelling schemes, either public or private, can generate environmental benefits. Eco-labels are a form of informational regulation that have emerged as an alternative to traditional command and control regulation. Eco-labels have some potential to improve environmental outcomes, in part by educating consumers about environmental attributes of products and incentivizing product greening. The chapter first considers different types of eco-labels, focusing on label content and label governance, using examples from around the world. It then discusses the challenges that a labelling scheme must overcome in order to be a successful force for environmental change. In particular, it explores whether an eco-label will work (issues relating to labelling methodology, label legitimacy, and consumer behaviour) and concludes with an analysis of eco-labelling normative concerns (equity, consumerism, and ‘strong’ versus ‘weak’ sustainability).
Ole W. Pedersen
This chapter examines the relationship of environmental law to public and constitutional law. More specifically, it considers ‘points of interactions’ between public and constitutional law and environmental law and shows that these points of interaction are found throughout the ‘life cycle’ of environmental law. The chapter explores the ways in which environmental law is shaped by rules and doctrines of public and constitutional law, first by discussing policy and law-making in the administrative state. It then analyses constitutional environmental norms and their functions, the local and domestic context of constitutional environmental provisions, the non-constitutional points of interaction between environmental law and public and constitutional law, and how the form and content of environmental law are shaped by domestic structures of government (and governance). The chapter concludes with an assessment of the impact of environmental law on public and constitutional law.
This chapter examines the tensions that exist between the principles of environmental law and criminal law. It first considers the ways in which environmental law and criminal law are mutually supportive and how they can complement one another by discussing the purpose of criminalization and the modes of interaction between public law and criminal law in relation to the environment. The chapter describes three ways in which criminal law interacts with different forms of the regulatory system: ‘one-step’ criminal offences, ‘two-step’ criminal offences, and ‘three-step’ criminal offences. It also explores the sanction of last resort and enforcement policy and how criminal law can be used as a substitute for environmental standards before concluding with an analysis of the conflicts in the principles of environmental law and criminal law with regards to strict liability, risk-based regulation, questions of interpretation, the harm principle, and moral certainty and symbolism.
Geert van Calster
This chapter examines the relationship between environmental law and private international law (also known as ‘conflict of laws’, particularly in the common law), with particular emphasis on corporate social responsibility (CSR). The focus is on the roll-out of private international law in the specific context of suing corporations in attractive jurisdictions, for activities which those corporations have carried out abroad. The chapter first reviews developments in the United States and the European Union (EU) concerning conflict of laws, and particularly with regards to extraterritorial harms. More specifically, it analyses litigation in US courts on the basis of the Alien Tort Statute (ATS) and its implications for CSR, corporate liability under ATS, and the Supreme Court ruling in Kiobel v Royal Dutch Petroleum (2010). In the EU, the issues were about jurisdiction and applicable law for attributability/duty of care, and compliance strategies. The chapter discusses attribution in the context of competition law.