Journal of Environmental Law - recent issues

Environment Law, Regulation and Governance: Shifting Architectures

Gunningham, N. — 2009-06-23

Environmental law and policy has come a long way since the birth of the US Environmental Protection Agency in 1970 and the launch of the first European environmental policy in 1972. Today law is no longer centre stage but simply one instrument among others in the environmental regulator's toolkit. And talk of regulation may itself be giving way to the broader concept of environmental governance. This article examines the evolution of environmental law, regulation and governance over almost four decades. It explores the major initiatives of that period and the lessons that can be learned from them, it maps shifting regulatory architectures and explains what has worked and why and it considers the changing nature of the environmental challenge itself. Finally, it seeks to identify which particular architectures are most suited to deal with particular types of environmental problems.

Maturity and Methodology: Starting a Debate about Environmental Law Scholarship

Fisher, E., Lange, B., Scotford, E., Carlarne, C. — 2009-06-23

Many environmental law scholars perceive environmental law scholarship as immature. We discuss why this self-perception has arisen and argue that a common theme is methodology. We argue that the subject can only mature when we face its methodological challenges head on, and we identify four particular issues that have given rise to these challenges: the speed and scale of legal/regulatory change, the interdisciplinary nature of the subject, the heavy reliance in environmental law on a diverse range of governance arrangements and the multi-jurisdictional nature of the subject. We argue that there is a need for debate in the face of these challenges and identify some starting points for that debate.

'Maturity and Methodology': A Personal Reflection

Macrory, R. — 2009-06-23

Finding Autonomy in International Environmental Law and Governance

French, D. — 2009-06-23

This article will consider the relevance of the notion of autonomy within a particular body of international law, namely international environmental law. Without the existence of an over-arching institutional framework on which the autonomy of the discipline might be otherwise premised, the article considers the complexity of understanding and applying autonomy within a diverse field of legal rules and institutional settings. The article will suggest, at least in international environmental law, that the notion of autonomy encompasses a wide range of meanings, ranging from the perceived-utopian (the ‘fable’) right through to the perceived-dystopian (the ‘threat’). In fact, the reality of autonomy in international environmental law is perhaps more nuanced and incremental—though not necessarily any the less significant for all that.

The Chagos Archipelago (British Indian Ocean Territory): Legal Black Hole or Environmental Bright Spot?--A Reply to Sand

Sheppard, C., Tamelander, J., Turner, J. — 2009-06-23

Diego Garcia Legal Black Hole--A Response to Sheppard et al

Sand, P. H. — 2009-06-23

Liability for Oil Pollution Damage versus Liability for Waste Management: The Polluter Pays Principle at the Rescue of the Victims: Case C-188/07, Commune de Mesquer v Total France SA [2008] 3 CMLR 16, [2009] Env LR 9

de Sadeleer, N. — 2009-06-23

This landmark European Court of Justice (ECJ) judgment on one hand, provides clarifications as to the scope of the EC definition of waste with respect to transported heavy fuel oil that was accidentally discarded by a tanker during a storm and, on the other, adjudicates that the cleaning up of heavy fuel oil can be imposed on the companies who created the waste, notably in their capacity as former holder or producer of the product from which the waste came.

The Rise and Fall of Access to Justice in The Netherlands

Tolsma, H., de Graaf, K., Jans, J. — 2009-06-23

This article analyses the development of access to justice for environmental organisations in Dutch law. It consists of two parts. The first part focuses on the rise of environmental organisations' right of access to the courts, and considers case law and legislation relating to the General Administrative Law Act and environmental permitting. It also discusses possibilities for environmental organisations to bring proceedings before the civil courts. The second part addresses the dismantling of the right of access to the courts. Recent developments in the legislation and case law are discussed as well as possible future changes in this respect. The article concludes with some final remarks concerning the present situation in the Netherlands in relation to the Aarhus Convention.

Significant UK Environmental Cases: 2008-09

Thornton, J. — 2009-06-23

Environmental Liability and Ecological Damage in European Law. Edited by MONIKA HINTEREGGER

Wilde, M. — 2009-06-23

Environmental Law, Policy and Economics: Reclaiming the Environmental Agenda. By NICHOLAS ASHFORD and CHARLES CALDART

Fisher, L. — 2009-06-23

Biodiversity, Conservation, Law and Livelihoods: Bridging the North-South Divide. Edited by MICHAEL I. JEFFERY, JEREMY FIRESTONE and KAREN BUBNA-LITIC

Alam, S. — 2009-06-23

Environmental Justice & the Rights of Indigenous Peoples. International & Domestic Legal Perspectives. Edited by LAURA WESTRA

Ruru, J. — 2009-06-23

Reconciling Human Existence with Ecological Integrity: Science, Ethics, Economics and Law. Edited by LAURA WESTRA, KLAUS BOSSELMANN and RICHARD WESTRA

Grear, A. — 2009-06-23

Regulatory Innovations for Biodiversity Protection in Private Forests--Towards Flexibility

Fromond, L., Simila, J., Suvantola, L. — 2009-02-26

The aim of the article is to identify and analyse innovative statutory regulation to address the challenges of biodiversity conservation, especially in relation to private forests. Four countries (Finland, Sweden, France and Australia) are scanned for innovative approaches and the identified instruments are classified into five categories according to the level and intensity of government interference. Advantages and drawbacks of the different instrument types related to their effectiveness, cost-effectiveness, fairness and acceptability are examined from a theoretical point of view. Compared to traditional measures of nature conservation, the examined innovative instruments provide for more flexibility relating to the nature of restrictions, scope, implementation or adjustability. This is aimed at improving acceptability among regulatees while upholding various degrees of government interference. On the basis of our analysis, innovations to address specific biodiversity challenges may be identified and new solutions developed.

Let's Get Physical: Civil Liability and the Perception of Risk

Hilson, C. — 2009-02-26

The article aims to explore the place of perceptions of risk within the law of tort. It examines both property-related, ‘stigma damages’ cases and also personal injury-related ‘fear of disease’ cases. A finding of some form of physical damage or injury seems to be required by the courts in order to establish liability in both instances. Having explored the contentious issue of the precise contours of such damage or injury, the article concludes with a suggestion for a quantifiability-based approach to establishing liability in the area.

The European Commission's Opinions under Article 6(4) of the Habitats Directive

Kramer, L. — 2009-02-26

The contribution examines the Opinions which the European Commission has issued so far under Article 6(4) of Directive 92/43 (Habitats Directive). It examines Member States' reasoning for justifying the application of Article 6(4) of the Habitats Directive in the light of the European Court of Justice rulings, and comes to the conclusion that probably not one of the cases submitted would have been accepted by the Court.

The Role of French Environmental Associations in Civil Liability for Environmental Harm: Courtesy of Erika

Papadopoulou, D. — 2009-02-26

Last January, the Tribunal Correctionnel de Paris, in its decision concerning the Erika oil spill, clearly recognised the right of environmental associations to claim compensation for damage done to the environment per se. Taking the judgment as a starting point, this article gives a brief insight into the French regime of civil liability for environmental harm, with a special focus on the role, as provided in the regime and further developed in the case-law, of French environmental associations. The latter are formally recognised, under certain conditions, as "guardians" of the collective interest to environmental protection. As a result, they are entitled to bring civil party petitions before criminal courts in case of -largely defined- "environmental crimes". These procedural rights have been broadly interpreted by (criminal, as well as civil) courts and effectively used by associations to ensure that the "polluter pays" and that civil damages reflect, to the extent possible, the reality of environmental harm, while serving the interests of general prevention.

Diego Garcia: British-American Legal Black Hole in the Indian Ocean?

Sand, P. H. — 2009-02-26

Environmental risks from US military construction on the atoll of Diego Garcia (British Indian Ocean Territory) since 1971 include damage caused by large-scale ‘coral mining’, the introduction of invasive alien plant species, continuous transits of nuclear material and unreported major fuel spills; these risks are now compounded by those of sea-level rise and ocean acidification due to global climate change. The US and UK governments have evaded accountability by way of a persistent ‘black hole’ strategy, contending that some national laws and international treaties for the protection of human rights and the environment do not apply to the island—a position confirmed by a controversial appellate judgment of the House of Lords in October 2008, essentially relying on ‘prerogative’ colonial law. This article draws attention to the fallacy of the black-hole syndrome, and to its potentially fatal consequences for the British claim to a 200-mile environment protection zone in the Chagos Archipelago.

The Revised Directive on Waste: Resolving Legislative Tensions in Waste Management?

Nash, H. A. — 2009-02-26

The revised Directive on waste (Directive 2008/98/EC) entered into force on 12 December 2008. The purpose of the revised Directive is to simplify the existing legislative framework for waste in order to encourage the divergence of waste away from landfills, to strengthen legal certainty and minimise burdens on businesses, regulators and stakeholders. This article explores the main features of the revised Directive and assesses them against the European Commissions' intentions in introducing the Directive. In addition, the paper considers the extent to which the revised Directive promotes successfully (i) reduction of natural resource use, (ii) prevention of environmental impacts of waste generation, (iii) life-cycle thinking and; (iv) securing waste prevention. The paper concludes that there is still room for further clarification, particularly in relation to the criteria for by-products and the new waste management terms ‘end of waste’ and ‘preparing for re-use’. Whilst the revised Directive has weaknesses and limitations it should be considered within the context of decision-making. In this way it represents a multi-party, multi-institutional and multi-national compromise which should be considered as a progressive step towards improving the whole life-cycle of products and resources. Undoubtedly, the revised Directive sets the tone for future legislative developments and bolsters the importance of extended producer responsibility in future waste management measures.

European Court of Justice--Significant Environmental Cases 2008

Edwards, V. — 2009-02-26

Implementing EU Pollution Control: Law and Integration. By BETTINA LANGE

McGillivray, D. — 2009-02-26

Responsible Business: Self-Governance and Law in Transnational Economic Transactions. Edited by OLAF DILLING, MARTIN HERBERG and GERD WINTER

Richardson, B. J — 2009-02-26

International Environmental Liability and Barriers to Trade: Market Access and Biodiversity in the Biosafety Protocol. By KAREEN L. HOLTBY, WILLIAM A. KERR and JILL E. HOBBS

Cheyne, I. — 2009-02-26

Antarctica: Legal and Environmental Challenges for the Future. Edited by GILLIAN TRIGGS and ANNA RIDDELL

Scott, K. N. — 2009-02-26

Defining Environmental Justice: Theories, Movements, and Nature. By DAVID SCHLOSBERG * Seeking Environmental Justice. Edited by SARAH WILKS

Stallworthy, M. — 2009-02-26

Enacting Closure in the Environmental Control of Genetically Modified Organisms

Valve, H., Kauppila, J. — 2008-10-29

One of the challenges of environmental law is to turn complex realities into coherent regulatory phenomena. The task requires ordering and boundary making. Motivated by this fact, this article studies the various types of closure through which releases of genetically modified organisms (GMOs) are made manageable in the European Union. We analyse the legal framework for controlling environmental releases of GMOs and its implementation in a particular authorisation process. The results show that the EU regulation transforms deliberate releases of GMOs into immutable and predictable phenomena by making assumptions about their stability, uniformity and continuity. The closures or boundaries thus created carry political implications which should be acknowledged. The analysis also raises critical questions about the reality of procedural harmonisation. Regulation aims at standardising the methods of knowledge production, but instead it may standardise the knowledge itself, leaving little room for learning and case-specificity.

A Cock and Bull Story?--Problems with the Protection of Animal Welfare in EU Law and Some Proposed Solutions

Ludwig, R., O'Gorman, R. — 2008-10-29

This article seeks to highlight defects in the EU's protection of animal welfare standards and proposes methods of addressing these defects. The first section examines the Protocol on the protection and welfare of animals, and the provision of Article 30 EC referring to the life and health of animals. The article highlights how both of these provisions have been interpreted in ways, which have made them, respectively, ineffective and unsuitable for the purposes of protecting animal welfare. The article then looks at possible methods of strengthening the protection of animal welfare within EU law, with particular focus on the proposed addition of an article on animal welfare through the Lisbon Treaty, should it be ratified. Finally, the article discusses the adoption of the Community Action Plan on the Protection and Welfare of Animals as the most recent tangible development advancing the protection of animal welfare throughout the EU.

Public Participation by Appeal--Insights from Empirical Evaluation in Finland

Simila, J., Inkinen, A., Tritter, J. Q. — 2008-10-29

Environmental law increasingly provides for participatory rights, including appeal rights, to ensure informed, legitimate decision-making. Despite consensus around the general need for participatory rights, including strong ones such as a right to appeal, public participation in environmental decision-making is often criticised. The critics’ main argument is that the negative side effects resulting particularly from the use of strong participatory rights outweigh their benefits. Recent regulatory trends arising from better regulation policy to make environmental decision-making more cost-efficient tend to pay special attention to such arguments despite limited empirical evidence. This article provides evidence using material-concerning appeals against pollution permits in Finland and suggests that judicial review is a necessary and effective process for both protecting citizens’ rights and improving the quality of environmental protection.

Public Interest Litigation Concerning Environmental Matters before Human Rights Courts: A Promising Future Concept?

Schall, C. — 2008-10-29

This article endeavours to explain the current state of environmental public interest litigation before the three regional human rights bodies of Europe, America and Africa in the light of their constituting treaties and case law. It assesses the likely impact of the Aarhus Convention and the changing national jurisdictions on the procedural but also on the substantive rights guaranteed by these bodies. It also assesses the chances of reform to broaden access to justice in environmental matters in the European human rights system. It argues that, although national and international jurisdictions generally point towards broader access to justice, the legal systems currently employed by the European and Inter-American human rights institutions are not apt for a concept of public interest litigation.

Conflicting Interpretations--The Slops Incident and the Application of the International Oil Pollution Liability and Compensation Regime to Offshore Storage and Transfer Operations

Harrison, J. — 2008-10-29

This analysis discusses recent developments in the international regime for oil pollution liability and compensation. It considers whether or not the regime is applicable to certain offshore storage and transfer operations. The analysis takes into account developments in the policy of the International Oil Pollution Compensation Fund on this topic, as well as the decisions of the Greek courts in the case of the Slops incident. It concludes that the current scope of the regime is unclear and there is a need to promote greater uniformity in the interpretation of the international regime.

Benefits and Costs of the Environment: Copenhagen Consensus 2008

Pedersen, O. W. — 2008-10-29

International Law--Significant Environmental Cases 2007-08

Harrison, J. — 2008-10-29

The Regulatory Challenge of Biotechnology: Human Genetics, Food and Patents. Edited by HAN SOMSEN

Lee, M. — 2008-10-29

The Social Construction of Climate Change: Power, Knowledge, Norms, Discourses. Edited by MARY E PETTENGER

Donnelly, B. — 2008-10-29

Risk Regulation and Administrative Constitutionalism. By ELIZABETH FISHER

Layard, A. — 2008-10-29

Implementing Integrated Water Resources Management in Central Asia. Edited by PATRICIA WOUTERS, VICTOR DUKHOVNY AND ANDREW ALLAN

Qin, T. — 2008-10-29

Absent Environments: Theorising Environmental Law and the City. By ANDREAS PHILIPPOPOULOS-MIHALOPOULOS

Holder, J. — 2008-10-29