Environmental Law

Topics: Environmental law, Precautionary principle, Environmental protection Pages: 66 (24330 words) Published: April 20, 2013
James Maurici, Landmark Chambers Introduction 1. This talk will look at: i. What is environmental law? ii. The sources of environmental law iii. Some key concepts in environmental law: the precautionary principle, the polluter pays, public participation and access to environmental justice iv. An introduction to the main areas of environmental law: a. air quality b. climate change c. contaminated land d. noise e. environmental permitting f. waste g. water h. nature conservation i. nuisance j. environmental impact assessment k. strategic environmental assessment l. REACH v. Some recent important environmental cases. 2. Further reading: the best introduction to the subject is the excellent Bell & McGillivray, Environmental Law (OUP, 7th ed., 2008).

What is environmental law? 3. There is no agreement on what environmental law is. This is a source of endless (academic) debate. 4. What is the “environment”? Some legal definitions … i. S. 1(2) of the Environmental Protection Act 1990 (“the EPA 1990”) “The “environment” consists of all, or any, of the following media, namely, the air, water and land; and the medium of air includes the air within buildings and the air within other natural or man-made structures above or below ground.” ii. Environmental Management Standard ISO 14001 “ … air, water, land, natural resources, flora, fauna, humans and their interrelationship …”; iii. See also Annex I to the Aarhus Convention, of which more later …



A “new” subject, underdeveloped? – see “Maturity and methodology: starting a debate about environmental law scholarship” Fisher, Lange, Scotford and Carlarne, J. Env. L. (2009) 21(2), 213-250. Fundamental questions about environmental law: i. Christopher Stone, “Should Trees Have Standing?: Towards Legal Rights for Natural Objects” (1972) Southern California LR 450-501; ii. Wild Law? The term "wild law" was first coined by Cormac Cullinan, a lawyer based in Cape Town, South Africa (Wild Law: A Manifesto for Earth Justice, Green Books, Totnes, Devon, 2003): see http://www.ukela.org/rte.asp?id=5 and "On thin ice - Could 'wild laws' protecting all the Earth's community - including animals, plants, rivers and ecosystems - save our natural world?", by Boyle and Elcoate (The Guardian, 8 November 2006) – the idea is “Fish, trees, fresh water, or any elements of the environment, … having legal rights” which can be vindicated by local communities (http://www.guardian.co.uk/environment/2006/nov/08/ethicalliving.society). Environmental law has many aspects: i. Private law: tort – especially nuisance (public and private), and also property law; ii. Public law – state regulation: a. Setting standards: water quality, air quality; b. requiring authorisation of activities – town planning, environmental permitting; c. Prescribing procedures to be carried out – EIA, SEA; - nature d. Identifying land or species that must be protected conservation, Sites of Special Scientific Interest (“SSSIs”), the Green Belt, AONBs etc; e. Banning activities – fly tipping; f. Creating civil liability - contaminated land regime (see below); the Environmental Liability Directive 2004/35 implemented by the Environmental Damage (Prevention and Remediation) Regulations 2009 (http://www.defra.gov.uk/environment/policy/liability/) etc. iii. Criminal law: environmental crime: a. Numerous offences in many Acts; b. Environment Agency (formerly National Rivers Authority) v Empress Car Co [1999] 2 A.C. 22: unknown person opened the unlockable tap of a diesel tank kept by Empress in a yard which drained directly into a river, with the result that the contents of the tank overflowed and drained into the river's waters. Empress’s conviction for causing poisonous, noxious or polluting matter to enter controlled waters contrary to the Water Resources Act 1991 s.85(1) on a prosecution brought by the NRA upheld by HL;




c. See the Environment Agency’s prosecution guide:...
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