SEMINAR 1: Sources of Environmental Law Aims and Objectives First, this seminar will outline the structure and

content of the whole module. Then, the sources of environmental law will be introduced. Special attention will be given to the environmental title in the Treaty on the Functioning of the European Union and to the sources of UK environmental law. Note: This seminar will be led by the tutor but you are expected to have done the essential reading. Seminar outcomes To gain an understanding of: 1. the structure of this module; 2. the sources of environmental law at the international, European and domestic level.

Essential Reading Books and Articles Bell, McGillivray and Pedersen, Environmental Law (2013), Ch 1 and Ch 4. Law and Policy Treaty on the Functioning of the European Union, Art 11 and Title XX Websites Familiarize yourself with the following websites: UK Environmental Law Association at: http://www.ukela.org/rte.asp?id=14 DG Environment European Commission at: http://ec.europa.eu/enviro nment/index_en.htm Further reading Jans and Vedder, European Environmental Law: After Lisbon (2012), Ch. 2 Questions for discussion 1. What is environmental law? 2. Why should we protect the environment? 3. What is the legal basis of European environmental law?

WHAT IS ENVIRONMENTAL LAW?

The boundaries of the subject are not very well defined (Plater, 1999) Many terms have not generally agreed, objective definition. Defining the environment Definition of the term environment is a central, but problematic term in environmental law. It is generally considered to have no singular definition because it is a relational concept. (Barry 1999) Einstein: The environment is everything which isnt me. The environment is defined by reference to physical, non-human, environmental media, including land, air, flora, and fauna, and so on. EPA 1990 s.1: all or any of the following media, namely, the air, water and land; and the media of air includes the air within buildings and the air within other natural man-made structures above or below ground. Environmental Management Standard ISO 14001: surroundings in which an organisation operates, including air, water, land natural resources, flora, fauna, humans and their interrelation. Surroundings in this context extend from within the organisation to the global system. European Commission: the combination of elements whose complex interrelationships make up the settings, the surroundings, and the conditions of life of the individual and of society, as they are or as they are felt. The notion of the environment as something worthy of protection and enhancement through public controls dates only to the 1960s. The idea of protecting something because of its contribution to biodiversity is recent. Social and cultural influences also play a part in what someone considers their environment, as well as time. Defining pollution and harm Laws arent targeted at the environment, but at tackling pollution and advancing levels of environmental quality. EPA 1990 s.1(3): Pollution of the environment means pollution of the environment due to the release (into any environmental medium) from any process of substances which are capable of causing harm to man or any other living organisms supported by the environment. EPA 1990 s.1(4): Harm means harm to the health of living organisms or other interference with the ecological systems of which they form part and, in the case of man, includes offence caused to any of his senses or harm to his property. Defining law Not just laws in this case guidance from DEFRA can only be overturned by a legal challenge.

POLICY AND ENVIRONMENTAL LAW

Law is affected by the values and culture of those who implement and enforce the rules and standards, and those whose activities are controlled by those rules and standards. Policy is used to describe the choices that we make when we have decided that something is worth pursuing. Policy choices need to be made about whether to use law, and if so, how.

RIGHTS AND ENVIRONMENTAL LAW

If an individual or a group of people has a right to a clean environment, that right can be relied upon as against a political decision to allow a development that interferes with those rights. Moral rights must be distinguished from legal rights, procedural from substantive, derivative rights from first-order rights, etc. There is an argument for the creation of legal rights for the natural environment, such as trees, rivers, animals, plants, and geological features. Private rights: based upon the protection of property interests, such as the right to take action against nuisances to prevent unreasonable interference with the enjoyment of the land or the right to prevent a trespass. Public law rights: tend to be procedural in nature, including the right to participate in decisionmaking, the right to information, the right to be heard at an inquiry, or the right to bring a judicial review action or a private prosecution. Substantive legal rights: some of the rights under the ECHR, such as the right to life, the right to home life, and the right to enjoy ones property.

SOURCES OF ENVIRONMENTAL LAW

INTERNATIONAL ENVIRONMENTAL LAW
Addresses environmental concerns that are applicable across different states or of general global application. Has no direct effect on domestic law or individuals, but often has an indirect effect. For the most party, environmental law consists of broad Conventions agreed by the signatory states. They can be precise and specific in terms of the obligations that they create.

TRANSNATIONAL ENVIRONMENTAL LAW

Different from international law because it is not necessarily negotiated over and agreed by a Convention or a protocol. Rules emerge in one jurisdiction or setting, but are then adopted in other countries. Not the same problems of vagueness or uncertainty, because the rules are generally adopted as national laws. Not just rules that are promoted at transnational level, but also general principles and approaches.

EUROPEAN UNION LAW

27 member states. In contrast to domestic law, EU environmental law is often purposive in character, although tht epurposes are combined with very specific standards in relation to environmental quality and emission levels. EU law binding as to the result to be achieved but not directly effective.

LAYERS OF LAW
International law, EU law, and domestic law are increasingly interdependent. Layering effect: laws that address particular problems overlap.

NATIONAL LAW
In the UK, the term environmental law is commonly used to mean that branch of public law which contains statutes that cover pollution control and wider environmental issues. There are also other mechanisms for the control or influence of activities that cause environmental harm that are not governed by statute. Some instruments are hybrids of public and private law; e.g. environmental agreements made under statutory powers by public bodies with private individuals and groups. Instruments that impose self-regulatory requirements such as compliance schemes under the producer responsibility legislation. Instruments that are based upon increasing public information about polluting activities such as rights of access to information on specific emissions and activities. Economic instruments that cover a range of measures. Increasingly common for there to be regional differences in environmental law. Three main categories of domestic environmental legislation: - Primary legislation: Acts of Parliament. Legislation on single environmental issues is often promoted in the form of private members Bills, reflecting interests of ind ividual MPs and effective lobbying of NGOs. - Secondary legislation: fleshes out the detail of primary legislation. Made by appropriate Secretary of State under the delegated authority of Parliament. Termed regulations, rules, or orders. Secondary legislation may be procedural, list detailed categories, set standards, transpose European obligations, and set long-term goals or visions. - Tertiary legislation, guidance, and other rules: there is an increasing reliance on other rules and guidance to explain the practical workings of environmental laws, and to provide a structure for statutory discretion. Can be used as an aid for the interpretation of statutory provisions, as a more flexible form of informal guidance or rule, as statements of regulatory agency policy and practice, as a way of structuring discretion, promoting consistency and transparency in decision-making, and as rules and guidance on procedural or other technical matters.

CHARACTERISTICS OF UK ENVIRONMENTAL LEGISLATION

Complex tiers of rules: much of the detail is left to be worked out in various forms of delegated legislation. Delayed commencement: legislation often requires implementation by statutory instrument before it comes into force. Definitions: these are often left unclear in the legislation in order to preserve flexibility in the application of the law. Purposive and listing approaches: either tends to have a broad definition within the primary legislation, followed by lists of a more technical nature in secondary Regulations, or a purposive definition which stands alone without any need for further clarification. Discretions: wide discretions are frequently given in the legislation. Parliament rarely sets firm policies and standards in legislation, allowing for these to be defined in delegated legislation or through administrative guidance. Discretion is usually given to the relevant regulatory body.

ENVIRONMENTAL LAWS IN PRACTICE

Environmental law is law in action rather than a law for lawyers. There is often a gap between published law and policy and what actually happens in the real world. Making environmental law is not the end of the process. The manner in which laws are transformed from the legislative page into effective actions depends on how they are implemented and

enforced.

CASE LAW
Most of the formal sources of environmental law are statutory. There is very little judge-made law and most of what there is consists of the interpretation of statutory provisions. Case law comprises a growing source of law. Substantive environmental cases come before the courts in three main ways: - Disputes about a statutory definition in primary or secondary legislation. Courts interpretation becomes law. - Common law disputes with an environmental flavor; negligence, nuisance, and trespass. - Judicial review of the exercise of power by government and regulatory agencies. The Courts and Environmental Cases The Courts have been at the forefront of the development of some key issues in environmental law such as the definition of waste, and the identity of the polluter in relation to waste pollution. Administrative Appeals and Decision Making There is a range of quasi-judicial decisions that can provide a source of law in its widest sense that is, in the same way that tertiary rules form a source of law. Administrative decisions are not binding on other decisions makers, but they can dictate the decision making processes of the regulatory agencies to whom such powers have been devolved.

TFEU

TITLE XX
ENVIRONMENT Article 191 (ex Article 174 TEC) 1. Union policy on the environment shall contribute to pursuit of the following objectives: preserving, protecting and improving the quality of the environment, protecting human health, prudent and rational utilisation of natural resources, promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.

2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional measures, for noneconomic environmental reasons, subject to a procedure of inspection by the Union. In preparing its policy on the environment, the Union shall take account of: available scientific and technical data, environmental conditions in the various regions of the Union, the potential benefits and costs of action or lack of action, the economic and social development of the Union as a whole and the balanced development of its regions.

4. Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for Union cooperation may be the subject of agreements between the Union and the third parties concerned. The previous subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude international agreements.