Environmental Law Synthesis - Part 1 PDF

Introduction 1. Definitions - purpose and contents 1.1. What is environmental law about? Environmental law is the collection of laws, regulations, agreements that governs how humans interact with their environment. 1.2. What is the purpose of environmental law? - The purpose of environmental law is...

Introduction 1. Definitions - purpose and contents 1.1. What is environmental law about? Environmental law is the collection of laws, regulations, agreements that governs how humans interact with their environment. 1.2. What is the purpose of environmental law? - The purpose of environmental law is to protect the environment and create rules for how people can use natural resources. - Environmental laws not only aim to protect the environment from harm, but they also determine who can use natural resources and on what terms. Environmental laws may regulate for instance pollution, the use of natural resources, forest protection, mineral harvesting and animal and fish populations. 1.3. What are the constituents of environmental law? Environmental law addresses a wide variety of different areas. Listed below are some of the most central areas that are governed by environmental law and its principles. This list is not exhaustive. Food Production Food production is another area covered by environmental law. Regulations will concern everything from how seed is harvested and prepared to what types of fertilizer and pesticides are used to nurture the crops to maturity. They will also examine processing, packaging, and storage facilities for food products to ensure that all ingredients are safe for human consumption, and there is less risk for contamination or spoiled food. Reducing air pollution and maintaining air quality This refers to the measures adopted to maintain safe air standards. That is, enforcing rules and regulations after determining what is the safe level of emission in terms of motor vehicles, industrial emissions, and common everyday usages. The most common example of these is the emission tests and regular cyclic vehicle safety tests. Water Quality Water quality laws are primarily concerned with the release of pollutants into the various water bodies. Across nations, water quality laws list the various pollutants that must be treated before they are released into water bodies and also the substances that have to be chemically altered and rendered inert before disposal. Some of these include raw sewage, agricultural waste, industrial waste and also the liquid waste from construction sites. Waste management Waste management laws regulate the transport, treatment, storage, and disposal of all manner of waste, this includes hazardous waste, and nuclear waste, among others. In general, waste laws are designed to minimize or regulate the uncontrolled dispersal of waste materials into the environment. That is, minimizing ecological or biological harm. This is ensured by categorizing waste types and properly dictating the transport, treatment, storage, and disposal of waste. Chemical safety The safe use of chemicals also falls under the ambit of environmental law. It primarily concerns with the correct storage of chemicals, their use, use of appropriate safety equipment, and also ensuring the legitimate licensing and sale of the various chemicals. All of this is with the eventual goal of preventing environmental threats that may arise due to poor management. This form of law is relevant to a wide variety of disciplines, ranging from repair garages to sophisticated testing labs. Flora and Fauna Flora and Fauna must be protected as they have been under constant threat by human activity. Environmental law may be enacted to protect biodiversity or as a special means for protecting species deemed important for other reasons. There is a need to come up with laws to protect endangered species from poachers, prohibition on killing or disruption of existing species and efforts to induce or support species recovery. Sustainability of resources Ensuring the sustainability of resources is achieved among others on the basis of various legal principles and legislation. Central to this vision is the concept of environmental impact assessment. Environmental impact assessment (EIA) is the assessment of the possible consequences both negative and positive of a particular plan, policy, or program, on the environment before the actual decision being carried out. It is a key tool of environmental management. The central purpose of EA is to ensure that decision-makers consider the environmental impacts when deciding whether or not to proceed with a proposed project. Common forms of legislation include the limiting of human activities, such as the prevention of overfishing, deforestation, and excessive mining. 2. Sources of environmental law – panorama There are three levels of sources for environmental law, the international level, the European level, and the national level. 2.1. The international level 2.1.1. Treaties, Conventions Protocols, and declarations The international level deals with the relation between different States who agree to conclude treaties, conventions, protocols or make declarations. Treaties, conventions, protocols, also called hard law, are binding formal agreements that establish obligations between two or more subjects of international law (primarily states and international organizations). They are formally signed by representatives duly authorized and usually ratified by the law-making authority of the state. Declarations, also called soft law, are means by which subjects of international law express their will, intention, or opinion when acting in the field of international relations. Declarations are not legally binding. In environmental law, some of the most prominent international acts are the following: • The Stockholm Conference (1972) – declaration so, a soft law (non-legally binding). It was the first major environmental conference and set the framework for discussions on the environment and the need for some form of regulation. The Stockholm declaration along with its 26 principles was formulated at this conference. This conference also marked the creation of the United Nations Environment Programme. • The Vienna Convention for the Protection of the Ozone Layer – 1985 – a convention is a treaty/part of an agreement, so it is a hard law (legally binding). This convention was established to ensure that more steps were taken to preserve and protect the ozone layer. The Vienna Convention, concluded in 1985, is a framework agreement in which States agree to cooperate in relevant research and scientific assessments of the ozone problem, to exchange information, and to adopt “appropriate measures” to prevent activities that harm the ozone layer. By 1985, the globe had already seen advancements in the scientific understanding of ozone depletion and its impacts on human health and the environment. It was then that the Vienna Convention for the Protection of the Ozone Layer was created in response. This agreement is a framework convention that lays out principles agreed upon by many parties. It does not, however, require countries to take control actions to protect the ozone layer. This would come later in the form of the Montreal Protocol. The Vienna Convention was the first convention of any kind to be signed by every country involved, taking effect in 1988 and reaching universal ratification in 2009. This speaks to the enormity of ozone depletion at the time and the willingness of countries around the world to work together to solve it. The Convention aimed to promote cooperation among nations by exchanging information on the effects of human activities on the ozone layer. In doing so, the creators of the Convention hoped policymakers would adopt measures to combat those activities responsible for ozone depletion. Today, the Vienna Convention is still making progress. The countries involved meet once every three years to make decisions on important issues including on Research and Systematic observations as well as financial and administrative matters. • The Kyoto protocol – 1997 – convention, so it is a hard law (legally binding). This protocol is based on the idea of common but differentiated responsibilities. It placed higher responsibility on the developed countries to reduce emissions as they bore primary responsibility for the higher levels of emissions. The Kyoto Protocol was adopted on 11 December 1997. Owing to a complex ratification process, it entered into force on 16 February 2005. Currently, there are 192 Parties to the Kyoto Protocol. In short, the Kyoto Protocol operationalizes the United Nations Framework Convention on Climate Change by committing industrialized countries and economies in transition to limit and reduce greenhouse gases (GHG) emissions in accordance with agreed individual targets. The Convention itself only asks those countries to adopt policies and measures on mitigation and to report periodically. The Kyoto Protocol only binds developed countries and places a heavier burden on them under the principle of “common but differentiated responsibility and respective capabilities”, because it recognizes that they are largely responsible for the current high levels of GHG emissions in the atmosphere. In its Annex B, the Kyoto Protocol sets binding emission reduction targets for 37 industrialized countries and economies in transition and the European Union. Overall, these targets add up to an average 5 per cent emission reduction compared to 1990 levels over the five-year period 2008–2012 (the first commitment period). During the second commitment period, Parties committed to reduce GHG emissions by at least 18 percent below 1990 levels in the eight-year period from 2013 to 2020; however, the composition of Parties in the second commitment period is different from the first. • The Paris Agreement - 12 December 2015 – agreement that is a hard law (legally binding). The Paris Agreement is the first-ever universal, legally binding global climate change agreement, adopted at the Paris climate conference (COP21) in December 2015. The EU and its Member States are among the close to 190 Parties to the Paris Agreement. The EU formally ratified the agreement on 5 October 2016, thus enabling its entry into force on 4 November 2016. For the agreement to enter into force, at least 55 countries representing at least 55% of global emissions had to deposit their instruments of ratification. The Paris Agreement is a bridge between today's policies and climate-neutrality before the end of the century. In this agreement, Governments agreed: - A long-term goal of keeping the increase in global average temperature to well below 2°C above pre-industrial levels. - To aim to limit the increase to 1.5°C, since this would significantly reduce risks and the impacts of climate change. - On the need for global emissions to peak as soon as possible, recognising that this will take longer for developing countries. - To undertake rapid reductions thereafter in accordance with the best available science, so as to achieve a balance between emissions and removals in the second half of the century. As a contribution to the objectives of the agreement, countries have submitted comprehensive national climate action plans (nationally determined contributions, NDCs). These are not yet enough to reach the agreed temperature objectives, but the agreement traces the way to further action. 2.1.2. The case law from Courts To be noted also that international Courts are an important source for environmental law. Among them, there are: - The International Court of Justice - The International Criminal Court - The European Convention on Human Rights 2.2. The European level Today 27 Member States are committed by two agreements the so-called Treaty of the European Union (“TEU”) and the Treaty on the Functioning of the European Union (“TFEU”) and are competent to adopt legislation on environmental matters at the EU level. As we will see in more details during the course, the Treaties are called primary legislation, they have binding legal effects on the Member States. Then, on the basis on these treaties, other legal acts are adopted, the so-called secondary legislation, which also may have binding effect under certain conditions. Together with the EU Treaties, the European Court of Justice represent another important source of environmental law. CURIA - Home - Court of Justice of the European Union 2.3. The national level States in their own territories adopt legislation on environmental issues. On the national level, many constitutions now contain provisions establishing environmental rights, or set forth governmental duties to protect the environment and the state’s natural resources. More than 100 constitutions in the world refer to a right to a clean and healthy environment, impose a duty on the state to prevent environmental harm, or mention the protection of the environment or natural resources. In Belgium, the three regions are competent to adopt legislation on environment: - The Région wallonne The Région flamande The Région of Bruxelles-Capitale In addition, national courts represent also an important source of environmental law through the judgments they give.