Journal of Environmental Law Advance Access originally published online on February 19, 2008
Journal of Environmental Law 2008 20(1):3-5; doi:10.1093/jel/eqm047
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‘Water Pollution: Improving the Legal Controls’ in Retrospect
University of Kent, UK
Re-reading ‘Water Pollution: Improving the Legal Controls’, in the first issue of this Journal, was a sobering experience. The piece ranges over an assortment of rather technical difficulties that arose under Part II of the Control of Pollution Act 1974. These topics are loosely placed under a general theme of ‘relatively minor changes’ that might be beneficially introduced under the imminent Water Bill (which became the Water Act 1989). Much has happened since, but this retrospective is best used to note the narrowness of the original article and the broadening of horizons in environmental law since its publication.
In the UK, in the 1980s, the new discipline of ‘environmental law’ emerged largely from the concerns of environmental practitioners. Amongst these, lawyers working for water authorities were prominent. ‘Water pollution law’ was seen as synonymous with those areas of law that practitioners of this kind would be engaged with on a daily basis. Certainly, there was a rising tide of environmental concern, but some caution amongst academic environmental lawyers about straying too far into the territory of environmental campaigning. Hence, the rather restrained view, that ‘relatively minor changes’ were capable of making significant differences to the effectiveness of water quality regulation, needs to be seen against that context.
Since the late 1980s, environmental law has acquired a strategic dimension of a kind that was previously unthinkable. In the UK at least, pollution control legislation was largely a legacy of Victorian statutes that had sought to ban environmentally unacceptable activities on an ad hoc basis. Indeed, the idea that water, air and land pollution had something in common, and should be regulated accordingly, lay in the future. Legislation tended to be focused upon specific activities, rather than impacts, and effluent discharges from industrial installations and sewage treatment works were prominent amongst these.
The strategic dimension to environmental law emerged from common features of media-specific environmental regulation. The impetus for this shift in thinking lies largely in the European Community Environment Policy initially provided for under the Single European Act 1987. Precursors of environmental action principles, such as the prevention principle, the precautionary principle and the polluter pays principle may be discerned in earlier national legislation. Without Community initiatives, however, they would have remained as vague ideas behind national legislative measures concerned with seemingly unconnected issues. Armed with policy principles, environmental law gained a coherence and purpose that had previously been lacking.
Another debt of environmental law to the Community lies in the formulation of environmental objectives. Previous national environmental law was characterised by its reactiveness and negativity, in seeking to ban or restrict unacceptably damaging activities. Relatively, little thought was given to the broader question of what quality of environment should count as ‘satisfactory’ and how the law might be used to realise that aim. Progressively, Community measures have sought to place environmental law on a more positive footing in formulating environmental quality objectives and precise standards to determine whether they have been met. This progression has been especially notable in relation to water quality, with numerous directives setting legally binding standards for waters of different kinds. Consequently, environmental laws have evolved from being exclusively prohibitive to being facilitative in respect of explicit objectives for the environment. Environmental laws, particularly water quality laws, have acquired a positively-stated purpose.
Insofar, as environmental law may be seen as the legislative response to ‘environmental problems’, the perception of these has shifted markedly. Most notable is the realisation that industrial production processes do not have a monopoly over environmental contamination. An early appreciation of this is in measures to address diffuse pollution, originating otherwise than from point-source effluent outfalls, particularly in agricultural nitrate contamination. The problem of nitrate fertiliser being washed from agricultural land needed a new legal approach, involving the regulation of land use in a preventative way. Taking a step back from the water's edge to regulate water quality by controlling terrestrial activities was a momentous shift in integrative and anticipatory thinking. The approach, of following environmental impacts backwards to the point at which they may be most effectively regulated, has been built upon in mechanisms including the Water Framework Directive (2000/60/EC) and the REACH Regulation concerning the registration, evaluation, authorisation and restriction of chemicals (Reg. 1907/2006).
Arguably, the REACH Regulation, though not specifically concerned with water quality, may actually have greater long-term beneficial impacts upon the aquatic environment than the Water Framework Directive. This is because of the capacity of product-orientated chemicals legislation to restrict marketing of harmful substances before they find their way into the aquatic environment. Action based upon life-cycle thinking about products has the potential to be more effective than trying to address diffuse pollutants through land use regulation and is certainly more effective than regulation of end-of-pipe emissions.
What all these developments illustrate is a shifting paradigm of environmental regulation. The traditional perception, of emissions from manufacturing activities as the key problem, has been supplemented by an appreciation that manufacturing of products is not the end of the matter. Increasingly, significant impacts arise from the distribution, use and disposal of products and a wider regulatory perception is needed to encompass this. Post-industrial societies need post-industrial environmental laws and, to some extent, developments since the 1980s reflect this progression.
However, perceptions of activities that need to be regulated may not have shifted as far or as fast as is needed. Restricting industrial activities is politically less problematic than regulating the lifestyles and patterns of consumption of people who comprise the electorate. Whilst more stringent controls upon industrial emissions may be regarded as an election vote-winner, convincing people that their consumption of certain goods and services, including energy and transport, must be reduced for environmental reasons is significantly more challenging. Lifestyle regulation, within a liberal democracy, must be seen as the key objective for the future. In retrospect, the original article reflects its time: at the cusp of the old and new thinking about environmental laws.
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