What is Environmental
Law?
What is the Environment
'Environment': a complex of natural and
anthropogenic factors and elements that are
mutually interrelated and affect the ecological
equilibrium and the quality of life, human health,
the cultural and historical heritage and the
landscape.
'Environment' includes:
natural resources both biotic and abiotic,
such as air, water, soil, fauna and flora and the
interactions between the same factors;
property which forms part of the cultural
heritage;
the characteristics aspects of landscape.
FOUNDATIONS OF ENVIRONMENTAL
PROTECTION
Law emerges from the cultural traditions and moral and
religious values of each society. These traditions and
values continue to impact the development of legal norms.
In the context of environmental protection, cultures,
religions and legal systems throughout the world contain
elements that respect and seek to conserve the natural
bases of life, maintaining concepts that can enhance and
enrich the development of modern environmental law.
THE SOURCES OF ENVIRONMENTAL
LAW
Governments protect the environment on the basis of
their various constitutional and statutory powers to
promote the general welfare, regulate commerce and
manage public lands, air and water.
Promulgation of regulations and permits by
administrative authorities is another important source
of environmental law.
Reporting, monitoring and civil and/or criminal actions to
enforce environmental law are critical components of
environmental law systems.
Some constitutions also contain reference to
environmental rights or duties, making these
constitutional provisions and their interpretation and
application another potentially important source of
environmental law.
BASIC PRINCIPLES OF
ENVIRONMENTAL PROTECTION
PREVENTION
Experience and scientific expertise demonstrate that
prevention must be the Golden Rule for the environment, for
both ecological and economic reasons. In some instances it
can be impossible to remedy environmental injury once it has
occurred: the extinction of a species of fauna or flora, erosion,
and the dumping of persistent pollutants into the sea create
intractable, even irreversible situations. Even when harm is
remediable, the cost of rehabilitation is often very high.
PRECAUTION
1) scientific uncertainty should not be used as a
reason not to take action with respect to a
particular environmental concern;
2) action should affirmatively be taken with
respect to a particular environmental concern;
3) those engaging in a potentially damaging
activity should have the burden of establishing
the absence of environmental harm; and
4) a State may restrict imports based on a
standard involving less than full scientific
certainty of environmental harm.
In order to protect the environment, the
precautionary approach shall be widely applied
by States according to their capabilities. Where
there are threats of serious or irreversible
damage, lack of full scientific certainty shall not
be used as a reason for postponing cost effective
measures to prevent environmental degradation.
POLLUTER PAYS
The polluter pays principle was originally
enunciated by the Organization for Economic
Cooperation and Development (OECD) to
restrain national public authorities from
subsidizing the pollution control costs of private
firms. Instead, enterprises should internalise the
environmental externalities by bearing the costs
of controlling their pollution to the extent
required by law.
Environmental justice
environmental justice seeks to ensure that
authorities fairly allocate and regulate scarce
resources to ensure that the benefits of
environmental resources, the costs associated
with protecting them, and any degradation that
occurs (i.e. all the benefits and burdens) are
equitably shared by all members of society.
Public trust
The concept of public trust expresses the idea
that the present generation holds the natural
resources of the earth in trust for future
generations. When applicable as a legal
principle, public trust contemplates that certain
things, such as natural resources and the
exercise of public power, are held by
governments in trust for the citizenry and must
be used for the public benefit
ENVIRONMENTAL RIGHTS
RIGHT TO INFORMATION
Access to environmental information is a prerequisite to
effective public participation in decision-making and to
monitoring governmental and private sector activities.
It also can assist enterprises in planning for and
utilizing the best available techniques and technology.
The nature of environmental deterioration, which often
arises only long after a project is completed and can be
difficult, if not impossible, to reverse, compels early and
complete data to make informed choices.
PUBLIC PARTICIPATION
Public participation is emphasized throughout
international and national environmental law. Public
participation is based on the right of those who may be
affected to have a say in the determination of their
environmental future. Depending on the jurisdiction,
this may include foreign citizens and residents. In the
EIA context, the public typically incorporates all
stakeholders including communities, women, children,
indigenous people, non-governmental organizations,
other State and non-State institutions.
ACCESS TO JUSTICE
The right to an effective remedy, meaning access to justice and
redress, can be found in both human rights law and in
environmental law. The United Nations Covenant on Civil and
Political Rights calls for states to provide a remedy whenever
rights protected under national or international law have been
violated. In the European Convention on Human Rights, Article
13 guarantees a remedy whenever there is a violation of the
rights and freedoms contained in the Convention, thus
encompassing violations of the right to information.
ENVIRONMENTAL QUALITY
National provisions proclaiming a right to
environmental quality are fairly prevalent at this
juncture. Almost every constitution adopted or
revised since 1970, either states the principle
that an environment of a specified quality
constitutes a human right or imposes
environmental duties upon the state
