| Environmental law |
|---|
| Pollution control and remediation |
| Air Hazardous substances Waste Water |
| Resource conservation and management |
| Fisheries Forests Historic sites Minerals Oil and gas Parks Species Water |
| Planning, land use, and infrastructure |
| Impact review Municipal planning Land use Transportation infrastructure Energy infrastructure Environmental justice |
| Related topics |
| Administrative law Bankruptcy law Energy law Insurance law International law |
Environmental law is a complex and interlocking body of treaties, conventions, statutes, regulations, and common law that operates to regulate the interaction of humanity and the natural environment, toward the purpose of reducing the impacts of human activity. The topic may be divided into two major subjects: (1) pollution control and remediation,(2) resource conservation and management. Laws dealing with pollution are often media-limited - i.e., pertain only to a single environmental medium, such as air, water (whether surface water, groundwater or oceans), soil, etc. - and control both emissions of pollutants into the medium, as well as liability for exceeding permitted emissions and responsibility for cleanup. Laws regarding resource conservation and management generally focus on a single resource - e.g., natural resources such as forests, mineral deposits or animal species, or more intangible resources such as especially scenic areas or sites of high archeological value - and provide guidelines for and limitations on the conservation, disturbance and use of those resources. These areas are not mutually exclusive - for example, laws governing water pollution in lakes and rivers may also conserve the recreational value of such water bodies. Furthermore, many laws that are not exclusively "environmental" nonetheless include significant environmental components and integrate environmental policy decisions. Municipal, state and national laws regarding development, land use and infrastructure are examples.
Environmental law draws from and is influenced by principles of environmentalism, including ecology, conservation, stewardship, responsibility and sustainability. Pollution control laws generally are intended (often with varying degrees of emphasis) to protect and preserve both the natural environment and human health. Resource conservation and management laws generally balance (again, often with varying degrees of emphasis) the benefits of preservation and economic exploitation of resources. From an economic perspective environmental laws may be understood as concerned with the prevention of present and future externalities, and preservation of common resources from individual exhaustion. The limitations and expenses that such laws may impose on commerce, and the often unquantifiable (non-monetized) benefit of environmental protection, have generated and continue to generate significant controversy.
Given the broad scope of environmental law, no fully definitive list of environmental laws is possible. The following discussion and resources give an indication of the breadth of law that falls within the "environmental" metric.
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Pollution does not respect political boundaries, making international law an important aspect of environmental law. Numerous legally binding international agreements now encompass a wide variety of issue-areas, from terrestrial, marine and atmospheric pollution through to wildlife and biodiversity protection.
While the bodies that proposed, argued, agreed upon and ultimately adopted existing international agreements vary according to each agreement, certain conferences - including 1972's United Nations Conference on the Human Environment, 1983's World Commission on Environment and Development, 1992's United Nations Conference on Environment and Development and 2002's World Summit on Sustainable Development have been particularly important.
International environmental law's development has included the statement and adoption of a number of important guiding principles. As with all international law, international environmental law brings up questions of sovereignty, legal reciprocity ("comity") and even perhaps the Golden Rule. Other guiding principles include the polluter pays principle, the precautionary principle, the principle of sustainable development, environmental procedural rights, common but differentiated responsibilities, intragenerational and intergenerational equity, "common concern of humankind", and common heritage.
International environmental agreements are generally multilateral (or sometimes bilateral) treaties (a.k.a. convention, agreement, protocol, etc.). The majority of such conventions deal directly with specific environmental issues. There are also some general treaties with one or two clauses referring to environmental issues but these are rarer. There are about 1000 environmental law treaties in existence today; no other area of law has generated such a large body of conventions on a specific topic.
Protocols are subsidiary agreements built from a primary treaty. They exist in many areas of international law but are especially useful in the environmental field, where they may be used to regularly incorporate recent scientific knowledge. They also permit countries to reach agreement on a framework that would be contentious if every detail were to be agreed upon in advance. The most widely known protocol in international environmental law is the Kyoto Protocol, which followed from the United Nations Framework Convention on Climate Change.
Customary international law is an important source of international environmental law. These are the norms and rules that countries follow as a matter of custom and they are so prevalent that they bind all states in the world. When a principle becomes customary law is not clear cut and many arguments are put forward by states not wishing to be bound. Examples of customary international law relevant to the environment include the duty to warn other states promptly about icons of an environmental nature and environmental damages to which another state or states may be exposed, and Principle 21 of the Stockholm Declaration ('good neighbourliness' or sic utere).
International environmental law also includes the opinions of international courts and tribunals. While there are few and they have limited authority, the decisions carry much weight with legal commentators and are quite influential on the development of international environmental law. One of the biggest challenges in international decisions is to determine an adequate compensation for environmental damages.[1]
The courts include: the International Court of Justice (ICJ); the international Tribunal for the Law of the Sea (ITLOS); the European Court of Justice; European Court of Human Rights[2] and other regional treaty tribunals. Arguably the World Trade Organisation's Dispute Settlement Board (DSB) is getting a say on environmental law also.
Important cases have included:
Laws from every stratum of the laws of the United States pertain to environmental issues. The United States Congress has passed a number of landmark environmental regulatory regimes, but many other federal laws are equally important, if less comprehensive. Concurrently, the legislatures of the fifty states have passed innumerable comparable sets of laws.[3] These state and federal systems are foliated with layer upon layer of administrative regulation. Meanwhile, the U.S. judicial system reviews not only the legislative enactments, but also the administrative decisions of the many agencies dealing with environmental issues. Where the statutes and regulations end, the common law begins.[4]
Consistent with the federal statutes that they administer, U.S. federal agencies promulgate regulations in the Code of Federal Regulations that fill out the broad programs enacted by Congress. Primary among these is Title 40 of the Code of Federal Regulations, containing the regulations of the Environmental Protection Agency. Other import CFR sections include Title 10 (energy), Title 18 (Conservation of Power and Water Resources), Title 21 (Food and Drugs), Title 33 (Navigable Waters), Title 36 (Parks, Forests and Public Property), Title 43 (Public Lands: Interior) and Title 50 (Wildlife and Fisheries).
The federal and state judiciaries have played an important role in the development of environmental law in the United States, in many cases resolving significant controversy regarding the application of federal environmental laws in favor of environmental interests. The decisions of the Supreme Court in cases such as Calvert Cliffs Coordinating Committee v. U.S. Atomic Energy Commission (broadly reading the procedural requirements of the National Environmental Policy Act), Tennessee Valley Authority v. Hill (broadly reading the Endangered Species Act), and, much more recently, Massachusetts v. EPA (requiring EPA to reconsider regulation of greenhouse gases under the Clean Air Act) have had policy impacts far beyond the facts of the particular case.
The common law of tort is an important tool for the resolution of environmental disputes that fall beyond the confines of regulated activity. Prior to the modern proliferation of environmental regulation, the doctrines of nuisance (public or private), trespass, negligence, and strict liability apportioned harm and assigned liability for activities that today would be considered pollution and likely governed by regulatory regimes.[5] These doctrines remain relevant, and most recently have been used by plaintiffs seeking to impose liability for the consequences of global climate change.[6]
The common law also continues to play a leading role in American water law, in the doctrines of riparian rights and prior appropriation.
In the United States, responsibilities for the administration of environmental laws are divided between numerous federal and state agencies with varying, overlapping and sometimes conflicting missions. The U.S. Environmental Protection Agency (EPA) is the most well-known federal agency, with jurisdiction over many of the country's national air, water and waste and hazardous substance programs.[7] Other federal agencies, such as the U.S. Fish and Wildlife Service and National Park Service pursue primarily conservation missions,[8] while still others, such as the United States Forest Service and the Bureau of Land Management, tend to focus more on beneficial use of natural resources.[9]
Federal agencies operate within the limits of federal jurisdiction. For example, EPA's jurisdiction under the Clean Water Act is limited to "waters of the United States". Furthermore in many cases federal laws allow for more stringent regulation by states, and of transfer of certain federally mandated responsibilities from federal to state control. U.S. state governments, therefore, administering state law adopted under state police powers or federal law by delegation, uniformly include environmental agencies.[10] The extent to which state environmental laws are based on or depart from federal law varies from jurisdiction to jurisdiction.
Thus, while a permit to fill non-federal wetlands might require a permit from a single state agency, larger and more complex endeavors - for example, the construction of a coal-fired power plant - might require approvals from numerous federal and state agencies.
In the United States, violations of environmental laws are generally civil offenses, resulting in monetary penalties and, perhaps, civil sanctions such as injunction. Many environmental laws also provide for criminal penalties for egregious violations. Environmental agencies often include separate enforcement offices, with duties including monitoring permitted activities, performing compliance inspections, issuing citations and prosecuting wrongdoing (civilly or criminally, depending on the violation). EPA's Office of Enforcement and Compliance Assurance is one such agency. Others, such as the United States Park Police, carry out more traditional law enforcement activities.
Adjudicatory proceedings for environmental violations are often handled by the agencies themselves under the strictures of administrative law. In some cases, appeals are also handled internally (for example, EPA's Environmental Appeals Board). Generally, final agency determinations may subsequently be appealed to the appropriate court.
Other environmental law enforcement agencies include:
The necessity of directly regulating a particular activity due to the activity's environmental consequences is often a subject of debate. These debates may be scientific - for example, scientific uncertainty fuels the ongoing debate over greenhouse gas regulation and is a major factor in the debate over whether to ban pesticides.[13]
It is very common for regulated industry to argue against environmental regulation on the basis of cost. Indeed, in the U.S. estimates of the environmental regulation's total costs reach 2% of GDP,[14] and any new regulation will arguably contribute in some way to that burden. Difficulties arise, however, in performing cost-benefit analysis. The value of a healthy ecosystem is not easily quantified, nor the value of clean air, species diversity, etc. Furthermore environmental issues may gain an ethical or moral dimension that would discount cost.
Environmental interests will often criticize environmental regulation as inadequately protective of the environment. Furthermore, strong environmental laws do not guarantee strong enforcement. Nonetheless, the cost benefit analysis for society at large between having laws that protect citizens from toxic or dangerous living and work conditions such as those that existed in the early industrial 1800's or not clearly comes down on the side of regulation.
Environmental law courses are offered as elective courses in the second and third years of JD study at many American law schools. Curricula vary: an introductory course might focus on the "big five" federal statutes - NEPA, CAA, CWA, CERCLA and RCRA (or FIFRA) - and may be offered in conjunction with a natural resources law course. Smaller seminars may be offered on more focused topics. Some U.S. law schools also offer an LLM or JSD specialization in environmental law. Additionally, several law schools host legal clinics that focus on environmental law, providing students with an opportunity to learn about environmental law in the context of real world disputes involving actual clients.[15] U.S. News & World Report has consistently ranked Vermont Law School, Lewis & Clark Law School, and Pace University School of Law as the top three Environmental Law programs in the United States, with Lewis & Clark and Vermont frequently trading the top spot.[16]
Many law schools host student-published law journals. The environmental law reviews at Harvard, Stanford, Columbia, NYU and Lewis & Clark Law School are regularly the most-cited such publications.[17]
The IUCN Academy of Environmental Law[18] is a network of some 60 law schools worldwide that specialise in the research and teaching of environmental law.
International environmental lawyers often receive specialized training in the form of an LL.M. degree after having a first law degree – often in another country from where they got their first law degree.
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