Environmental law, also known as environmental and natural resources law, is a collective term describing the network of treaties, statutes, regulations, common and customary laws addressing the effects of human activity on the natural environment. The core environmental law regimes address environmental pollution. A related but distinct set of regulatory regimes, now strongly influenced by environmental legal principles, focus on the management of specific natural resources, such as forests, minerals, or fisheries. Other areas, such as environmental impact assessment, may not fit neatly into either category, but are nonetheless important components of environmental law.
According to Kat Kadian Baumeyer,1 The principles, policies, directives, and regulations of international Environmental law are enacted and enforced by local, national, or international entities to regulate human treatment of the nonhuman world. The vast field covers a broad range of topics in diverse legal settings and international treaties for the protection of biological diversity and the ozonosphere. During the late 20th century environmental law developed from a modest adjunct of the law of public health regulations into an almost universally recognized independent field protecting both human health and nonhuman nature.
Throughout history governments across the globe have passed occasional laws to protect human health from environmental contamination. About AD80 the Senate of Rome passed legislation to protect the city’s supply of clean water for drinking and bathing. In the 14th century England prohibited both the burning of coal in London and the disposal of waste into waterways. In the following century Benjamin Franklin led various campaigns to curtail the dumping of waste. In the 19th century, in the midst of the Industrial Revolution, the British government passed regulations to reduce the deleterious effects of coal burning and chemical manufacture on public health and the environment.
1. Kat has a Master of Science in Organizational Leadership and Environmental Management.
Prior to the 20th century there were few international environmental agreements. The accords that were reached focused primarily on boundary waters, navigation, and fishing rights along shared waterways and ignored pollution and other ecological issues. In the early 20th century, conventions to protect commercially valuable species were reached, including the Convention for the Protection of Birds Useful to Agriculture (1902), signed by 12 European governments; the Convention for the Preservation and Protection of Fur Seals (1911), concluded by the United States, Japan, Russia, and the United Kingdom;
Beginning in the 1960s, environmentalism became an important political and intellectual movement in the West. In the United States the publication of biologist Rachel Carson 2 is a passionate and persuasive examination of chlorinated hydrocarbon pesticides and the environmental damage caused by their use, led to a reconsideration of a much broader range of actual and potential environmental hazards. In subsequent decades the U.S. government passed an extraordinary number of environmental laws—including acts addressing solid-waste disposal, air and water pollution, and the protection of endangered species—and created an Environmental Protection Agency to monitor compliance with them. These new environmental laws dramatically increase government’s role in an area previously left primarily to state and local regulation.
Following the United Nations Conference on the Human Environment, held in Stockholm in 1972, the UN established the United Nations Environment Programme (UNEP) as the world’s principal international environmental organization. Although UNEP oversees many modern-day agreements, it has little power to impose or enforce sanctions on noncomplying parties.
2. Silent Spring (1962),
Nevertheless, a series of important conventions arose directly from the conference, including the Convention on the Prevention of Marine Pollution by Dumping of Wastes or Other Matter (1972) and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973).
Until the Stockholm conference, European countries generally had been slow to enact legal standards for environmental protection—though there had been some exceptions.
During the 1980s the “transboundary effects” of environmental pollution in individual countries spurred negotiations on several international environmental conventions. The effects of the 1986 accident at the nuclear power plant at Chernobyl in Ukraine (then part of the Soviet Union) were especially significant. European countries in the pollution’s downwind path were forced to adopt measures to restrict their populations’ consumption of water, milk, meat, and vegetables.
There are often conflicting data about the environmental impact of human activities, and scientific uncertainty often has complicated the drafting and implementation of environmental laws and regulations, particularly for international conferences attempting to develop universal standards. Consequently, such laws and regulations usually are designed to be flexible enough to accommodate changes in scientific understanding and technological capacity. The Vienna Convention for the Protection of the Ozone Layer (1985), for example, did not specify the measures that signatory states were required to adopt to protect human health and the environment from the effects of ozone depletion, nor did it mention any of the substances that were thought to damage the ozone layer. Similarly, the Framework Convention on Climate Change, or Global Warming Convention, 3 did not set binding targets for reducing the emission of the “greenhouse” gases thought to cause global warming.
In 1995 the Intergovernmental Panel on Climate Change, which was established by the World Meteorological Organization and UNEP to study changes in the Earth’s temperature, concluded that “the balance of evidence suggests a discernible human influence on global climate.” Although cited by environmentalists as final proof of the reality of global warming, the report was faulted by some critics for relying on insufficient data, for overstating the environmental impact of global warming, and for using unrealistic models of climate change.
3. Adopted by 178 countries meeting in Rio de Janeiro at the 1992 United Nations Conference on Environment and Development (popularly known as the “Earth Summit”),
The protocol authorized developed countries to engage in emissions trading in order to meet their emissions targets. Its market mechanisms included the sale of “emission reduction units,” which are earned when a developed country reduces its emissions below its commitment level, to developed countries that have failed to achieve their emission targets. Developed countries could earn additional emission reduction units by financing energy-efficient projects (e.g., clean-development mechanisms) in developing countries. Since its adoption, the protocol has encountered stiff opposition from some countries, particularly the United States, which has failed to ratify it.
Level of Environmental Law
Environmental law exists at many levels and is only partly constituted by international declarations, conventions, and treaties. The bulk of environmental law is statutory encompassed in the enactments of legislative bodies and regulatory generated by agencies charged by governments with protection of the environment.
In addition, many countries have included some right to environmental quality in their national constitutions. Since 1994, for example, environmental protection has been enshrined in the (“Basic Law”), which now states that the government must protect for “future generations the natural foundations of life.” the South African constitution recognizes a right to “an environment that is not harmful to health or well-being; and to have the environment protected, for the benefit of present and future generations”.
The dumping of toxic waste at Koko village in Delta State of Nigeria in 1988 by an Italian Company and its aftermath effect woke the Nigerian government to the realities of protecting their environment.4
Much environmental law also is embodied in the decisions of international, national, and local courts. Some of it is manifested in arbitrated decisions, such as the Trail Smelter arbitration (1941), which enjoined the operation of a smelter located in British Columbia, Canada, near the international border with the U.S. state of Washington and held that “no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein.” Some environmental law also appears in the decisions of national courts. For example, in Scenic Hudson Preservation Conference v. Federal Power Commission 5 a U.S. federal appeals court voided a license granted by the Federal Power Commission for the construction of an environmentally damaging pumped-storage hydroelectric plant (i.e., a plant that would pump water from a lower to an upper reservoir) in an area of stunning natural beauty, demonstrating that the decisions of federal agencies could be successfully challenged in the courts. Significant local decisions included National Audubon Society v. Superior Court 6 in which the California Supreme Court dramatically limited the ability of the Los Angeles to divert water that might otherwise fill Mono Lake in California’s eastern desert.
Type of Environmental Law
Most environmental law falls into a general category of laws known as “command and control.” Such laws typically involve three elements: (1) identification of a type of environmentally harmful activity, (2) imposition of specific conditions or standards on that activity, and (3) prohibition of forms of the activity that fail to comply with the imposed conditions or standards.
4. W. A. Adebayo, Ph.D (2017) Contemporary issues in International Environmental Law p.20
The United States Federal Water Pollution Control Act (1972), for example, regulates “discharges” of “pollutants” into “navigable waters of the United States.” All three terms are defined in the statute and agency regulations and together identify the type of environmentally harmful activity subject to regulation. Almost all environmental laws prohibit regulated activities that do not comply with stated conditions or standards. Many make a “knowing” (intentional) violation of such standards a crime.
The most obvious forms of regulated activity involve actual discharges of pollutants into the environment (e.g., air, water, and groundwater pollution). However, environmental laws also regulate activities that entail a significant risk of discharging harmful pollutants (e.g., the transportation of hazardous waste, the sale of pesticides, and logging). For actual discharges, environmental laws generally prescribe specific thresholds of allowable pollution; for activities that create a risk of discharge, environmental laws generally establish management practices to reduce that risk.
The standards imposed on actual discharges generally come in two forms: (1) environmental-quality, or ambient, standards, which fix the maximum amount of the regulated pollutant or pollutants tolerated in the receiving body of air or water, and (2) emission, or discharge, standards, which regulate the amount of the pollutant or pollutants that any “source” may discharge into the environment. Most comprehensive environmental laws impose both environmental-quality and discharge standards and endeavour to coordinate their use to achieve a stated environmental-quality goal. Another type of activity regulated by command-and-control legislation is environmentally harmful trade. Among the most-developed regulations are those on trade in wildlife. The Convention on International Trade in Endangered Species of Wild Fauna and Flora 7 for example, authorizes signatories to the convention to designate species “threatened with extinction which are or may be affected by trade.” Once a plant or animal species has been designated as endangered, countries generally are bound to prohibit import or export of that species except in specific limited circumstances. In 1989 listing of the African elephant as a protected species effectively prohibited most trade in African ivory, which was subsequently banned by Kenya.
7. (CITES, 1973),
Environmental assessment mandates
Environmental assessment mandates are another significant form of environmental law. Such mandates generally perform three functions: (1) identification of a level or threshold of potential environmental impact at which a contemplated action is significant enough to require the preparation of an assessment, (2) establishment of specific goals for the assessment mandated, and (3) setting of requirements to ensure that the assessment will be considered in determining whether to proceed with the action as originally contemplated or to pursue an alternative action. Unlike command-and-control regulations, which may directly limit discharges into the environment, mandated environmental assessments protect the environment indirectly by increasing the quantity and quality of publicly available information on the environmental consequences of contemplated actions. This information potentially improves the decision making of government officials and increases the public’s involvement in the creation of environmental policy.
The use of economic instruments to create incentives for environmental protection is a popular form of environmental law. Such incentives include pollution taxes, subsidies for clean technologies and practices, and the creation of markets in either environmental protection or pollution. Some Countries for example, impose taxes on carbon dioxide emissions, and has debated whether to implement such a tax at the supranational level to combat climate change.
By the 1990s, “tradable allowance schemes”, which permit companies to buy and sell “pollution credits,” or legal rights to produce specified amounts of pollution, had been implemented in the United States. The most comprehensive and complex such program created as part of the 1990 Clean Air Act, 8 was designed to reduce overall sulfur dioxide emissions by fossil-fuel-fired power plants. According to proponents, the program would provide financial rewards to cleaner plants, which could sell their unneeded credits on the market, and allow dirtier plants to stay in business while they converted to cleaner technologies.
A final method of environmental protection is the setting aside of lands and waters in their natural state. In Kenya, for example, the vast majority of the land owned by the federal government (about one-third of the total land area of the country) can be developed only with the approval of a federal agency. Arguably, the large body of law that regulates use of public lands and publicly held resources is “environmental law.” Some, however, maintain that it is not.
Many areas of law can be characterized as both “set aside” and regulatory. For example, international efforts to preserve wetlands have focused on setting aside areas of ecological value, including wetlands, and on regulating their use. The Ramsar Convention 9 provides that wetlands are a significant “economic, cultural, scientific and recreational” resource, and a section of the Clean Water Act.
PRINCIPLE OF ENVIRONMENTAL LAW
Environmental law has developed in response to emerging awareness of and concern over issues impacting the entire world. While laws have developed piecemeal and for a variety of reasons, some effort has gone into identifying key concepts and guiding principles common to environmental law as a whole.
8. Is an international treaty for the conservation and sustainable use of wetlands. It is also known as the Convention on Wetlands. It is named after the city of Ramsarin Iran, where the Convention was signed in 1971.
9. The basis of the CWA was enacted in 1948 and was called the Federal Water Pollution Control Act, but the Act was significantly reorganized and expanded in 1972. “Clean Water Act” became the Act’s common name with amendments in 1972.
“The basic principle of Environmental Law is the aggregate of measures designed to protect the environment and to deter human activities that are detrimental to the environment”.
The design and application of modern environmental law have been shaped by a set of principles and concepts outlined in publications such as Our Common Future (1987).10
Some scholars acknowledged that the list are not exhaustive, whilst some considered the three basic principles as universally recognized or accepted namely Precautionary, Preventive and The Polluters pay as the all-encompassing recognized principles. Nonetheless, they represent important principles for the understanding of environmental law around the world. Other principles will briefly be considered for the purpose of general understanding.
The Precautionary Principle
One of the most commonly encountered and controversial principles of environmental law, the Rio Declaration 11 formulated the precautionary principle as follows:
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.
Environmental law regularly operates in areas complicated by high levels of scientific uncertainty. In the case of many activities that entail some change to the environment, it is impossible to determine precisely what effects the activity will have on the quality of the environment or on human health. It is generally impossible to know, for example, whether a certain level of air pollution will result in an increase in mortality from respiratory disease, whether a certain level of water pollution will reduce a healthy fish population, or whether oil development in an environmentally sensitive area will significantly disturb the native wildlife. The precautionary principle requires that, if there is a strong suspicion that a certain activity may have environmentally harmful consequences, it is better to control that activity now rather than to wait for incontrovertible scientific evidence. This principle is expressed in the Rio Declaration, which stipulates that, 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.” In the United States the precautionary principle was incorporated into the design of habitat-conservation plans required under the aegis of the Endangered Species Act.
The principle is the bedrock of the use of Environmental Impact Assessment by government of nations in assessing the benefits of any projects before execution. Dr. Adebayo William Adewunmi 12 in his book underlines some international legal instruments with precautionary principles to includes 1982 World Charter for Nature, 1987 Montreal Protocol on Substances that Deplete the ozone Layer, The 1985 Vienna Convention for the protection of the ozone Layer, 1992 United Nation Framework Convention on Climate Change and 1994 Protocol to the 1979 Convention on Long Range Transboundary Air Pollution on Further Remediation of Sulphur Emission.
10. published by the World Commission on Environment and Development, and the Earth Summit’s Rio Declaration (1992).
11. The Rio Declaration on Environment and Development, often shortened to Rio Declaration, was a short document produced at the 1992 United Nations “Conference on Environment and Development” (UNCED), informally known as the Earth Summit.
The Prevention Principle
Although much environmental legislation is drafted in response to catastrophes, preventing environmental harm is cheaper, easier, and less environmentally dangerous than reacting to environmental harm that already has taken place. The prevention principle is the fundamental notion behind laws regulating the generation, transportation, treatment, storage, and disposal of hazardous waste and laws regulating the use of pesticides. The principle was the foundation of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989), which sought to minimize the production of hazardous waste and to combat illegal dumping, the 1992 Convention on Biological Diversity. The prevention principle environmental law has been found suitable in protecting the environment and preventing transboundary pollution, prevention of pollution at the source, minimizing environment damage and reducing risk of harm among others.
12. W. A. Adebayo, Ph.D (2017) Contemporary issues in International Environmental Law p.20
The concept of prevention can perhaps better be considered an overarching aim that gives rise to a multitude of legal mechanisms, including prior assessment of environmental harm, licensing or authorization that set out the conditions for operation and the consequences for violation of the conditions, as well as the adoption of strategies and policies. Emission limits and other product or process standards, the use of best available techniques and similar techniques can all be seen as applications of the concept of prevention.
The “Polluter Pays” principle
Since the early 1970s the “polluter pays” principle has been a dominant concept in environmental law. Many economists claim that much environmental harm is caused by producers who “externalize” the costs of their activities. For example, factories that emit unfiltered exhaust into the atmosphere or discharge untreated chemicals into a river pay little to dispose of their waste. Instead, the cost of waste disposal in the form of pollution is borne by the entire community. Similarly, the driver of an automobile bears the costs of fuel and maintenance but externalizes the costs associated with the gases emitted from the tailpipe. Accordingly, the purpose of many environmental regulations is to force polluters to bear the real costs of their pollution, though such costs often are difficult to calculate precisely. In theory, such measures encourage producers of pollution to make cleaner products or to use cleaner technologies. The “polluter pays” principle underlies U.S. laws requiring the cleanup of releases of hazardous substances, including oil. One such law, the Oil Pollution Act (1990), was passed in reaction to the spillage of oil. The “polluter pays” principle also guides the policies of the governments throughout the world.
The polluter pays principle stands for the idea that “the environmental costs of economic activities, including the cost of preventing potential harm, should be internalized rather than imposed upon society at large. All issues related to responsibility for cost for environmental remediation and compliance with pollution control regulations involve this principle. Some of the legal instruments that incorporate the polluter pay principle includes National Environmental Standards and Regulations Enforcement Agency (Establishment) Act 2007, International Convention on the Establishment of an International Fund for Compensation for oil Pollution Damage and Harmful Waste (Special Criminal Provisions) Degree 1988. 13
The other principles in the environmental law includes:
Defined by the United Nations Environment Programme as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs,” sustainable development may be considered together with the concepts of “integration” (development cannot be considered in isolation from sustainability) and “interdependence” (social and economic development, and environmental protection, are interdependent). Laws mandating environmental impact assessment and requiring or encouraging development to minimize environmental impacts may be assessed against this principle.
The modern concept of sustainable development was a topic of discussion at the 1972 United Nations Conference on the Human Environment (Stockholm Conference), and the driving force behind the 1983 World Commission on Environment and Development (WCED, or now Bruntland Commission). In 1992, the first UN Earth Summit resulted in the Rio Declaration, Principle 3 of which reads: “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.” Sustainable development has been a core concept of international environmental discussion ever since, including at the World Summit on Sustainable Development(Earth Summit 2002).
13. Cap H1 Laws of the Federation of Nigeria, 2004.
Defined by UNEP to include intergenerational equity – “the right of future generations to enjoy a fair level of the common patrimony” – and intra-generational equity – “the right of all people within the current generation to fair access to the current generation’s entitlement to the Earth’s natural resources” – environmental equity considers the present generation under an obligation to account for long-term impacts of activities, and to act to sustain the global environment and resource base for future generations. Pollution control and resource management laws may be assessed against this principle.
Defined in the international law context as an obligation to protect one’s own environment, and to prevent damage to neighboring environments, UNEP considers transboundary responsibility at the international level as a potential limitation on the rights of the sovereign state. Laws that act to limit externalities imposed upon human health and the environment may be assessed against this principle.
Public participation and transparency
Identified as essential conditions for “accountable governments, industrial concerns,” and organizations generally, public participation and transparency are presented by UNEP as requiring “effective protection of the human right to hold and express opinions and to seek, receive and impart ideas, a right of access to appropriate, comprehensible and timely information held by governments and industrial concerns on economic and social policies regarding the sustainable use of natural resources and the protection of the environment, without imposing undue financial burdens upon the applicants and with adequate protection of privacy and business confidentiality,” and “effective judicial and administrative proceedings.” These principles are present in environmental impact assessment, laws requiring publication and access to relevant environmental data, and administrative procedure.
The public participation principle
Decisions about environmental protection often formally integrate the views of the public. Generally, government decisions to set environmental standards for specific types of pollution, to permit significant environmentally damaging activities, or to preserve significant resources are made only after the impending decision has been formally and publicly announced and the public has been given the opportunity to influence the decision through written comments or hearings. In many countries citizens may challenge in court or before administrative bodies government decisions affecting the environment. These citizen lawsuits have become an important component of environmental decision making at both the national and the international level.
Public participation in environmental decision making has been facilitated in Europe and North America by laws that mandate extensive public access to government information on the environment. Similar measures at the international level include the Rio Declaration and the 1998 Århus Convention, which committed the 40 European signatory states to increase the environmental information available to the public and to enhance the public’s ability to participate in government decisions that affect the environment. During the 1990s the Internet became a primary vehicle for disseminating environmental information to the public.
Sustainable development is an approach to economic planning that attempts to foster economic growth while preserving the quality of the environment for future generations. Despite its enormous popularity in the last two decades of the 20th century, the concept of sustainable development proved difficult to apply in many cases, primarily because the results of long-term sustainability analyses depend on the particular resources focused upon. For example, a forest that will provide a sustained yield of timber in perpetuity may not support native bird populations, and a mineral deposit that will eventually be exhausted may nevertheless support more or less sustainable communities. Sustainability was the focus of the 1992 Earth Summit and later was central to a multitude of environmental studies.
One of the most important areas of the law of sustainable development is ecotourism. Although tourism poses the threat of environmental harm from pollution and the overuse of natural resources, it also can create economic incentives for the preservation of the environment in developing countries and increase awareness of unique and fragile ecosystems throughout the world. In 1995 the World Conference on Sustainable Tourism, held on the island of Lanzarote in the Canary Islands, adopted a charter that encouraged the development of laws that would promote the dual goals of economic development through tourism and protection of the environment. Two years later, in the Malé Declaration on Sustainable Tourism, 27 Asian-Pacific countries pledged themselves to a set of principles that included fostering awareness of environmental ethics in tourism, reducing waste, promoting natural and cultural diversity, and supporting local economies and local community involvement. Highlighting the growing importance of sustainable tourism, the World Tourism Organization declared 2002 the International Year of Ecotourism.
CURRENT TRENDS AND PROSPECTS IN ENVIRONMENTAL LAW
Although numerous international environmental treaties have been concluded, effective agreements remain difficult to achieve for a variety of reasons. Because environmental problems ignore political boundaries, they can be adequately addressed only with the cooperation of numerous governments, among which there may be serious disagreements on important points of environmental policy. Furthermore, because the measures necessary to address environmental problems typically result in social and economic hardships in the countries that adopt them, many countries, particularly in the developing world, have been reluctant to enter into environmental treaties. Since the 1970s a growing number of environmental treaties have incorporated provisions designed to encourage their adoption by developing countries. Such measures include financial cooperation, technology transfer, and differential implementation schedules and obligations.
The greatest challenge to the effectiveness of environmental treaties is compliance. Although treaties can attempt to enforce compliance through mechanisms such as sanctions, such measures usually are of limited usefulness, in part because countries in compliance with a treaty may be unwilling or unable to impose the sanctions called for by the treaty. In general, the threat of sanctions is less important to most countries than the possibility that by violating their international obligations they risk losing their good standing in the international community. Enforcement mechanisms other than sanctions have been difficult to establish, usually because they would require countries to cede significant aspects of their national sovereignty to foreign or international organizations. In most agreements, therefore, enforcement is treated as a domestic issue, an approach that effectively allows each country to define compliance in whatever way best serves its national interest. Despite this difficulty, international environmental treaties and agreements are likely to grow in importance as international environmental problems become more acute.
Many areas of international environmental law remain underdeveloped. Although international agreements have helped to make the laws and regulations applicable to some types of environmentally harmful activity more or less consistent in different countries, the lack of consistency in the law has led to situations in which activities that are legal in some countries result in illegal or otherwise unacceptable levels of environmental damage in neighboring countries.
In conclusion, this paper considers environmental law as it establish protection for our scarce natural resources and natural surroundings, like land, air and water and of course humans and other inhabitants. It may seem like people have been concerned about industrial effects on the environment for only a short period of time but you will discover that its been ages, back in 1671, South Carolina’s Colonial Assembly passed a law that stated, that “should any person cause to flow into or be cast into any of the creeks, streams or inland waters of this State any impurities that are poisonous to fish or destructive to their spawn, such person shall, upon conviction, be punished.”. Polluted air, chemical spills and harmful use of land are only a few examples of how industry can have a negative impact on our natural environment.
Several laws, ordinances, conventions, treaties are all enshrine in our laws particularly the international endorsements making it illegal to pollute our environment. Since that time, environmental law advanced to address modern issues; It is critical to know that the various environmental legislatives framework exist to cater for the protection of the environment and ensure a safety environment for all and make a sustainable development a reality while our environment will become a safe sanctuary for both present and future generations.