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COMPARATIVE AND GLOBAL ENVIRONMENTAL LAW
FRAMING ENVIRONMENTAL LAW
- How you frame environmental law will determine whether you think a solution is ideal - eg if you frame it as a market problem of externalities, then you will think market-based solutions are ideal.
We need to always keep in mind what we are fighting for constantly remind ourselves what environmental law at its largest and best tries to do (Heinzerling).
- Law frames environmental problems primarily through legislation, but also judicial framing (Fisher).
Behind every environmental law is a theory of society - THUS legislative development of environmental law isn't linear (Fisher).
- Environmental law scholarship is a normative exercise must always consider whether what is being described or discussed is what the law is or what the writer would like it to be (Fisher, Lange and
GLOBAL ENVIRONMENTAL LAW
Yang and Percival argue that global law is emerging amalgam of national and international environmental law and their interactions.
Yang and Percival describe global environmental as not just borrowing of environmental legal principles (eg legal transplants) between national and international systems or between national systems - BUT as an emerging set of independent and convergent legal principles.
- Yang and Percival argue that environmental treaties have contributed to the global acceptance and spread of international environmental legal norms and has entrenched environmental norms (some aspirational and some legally binding).
Process of creating implementing legislation treaties has helped embed globally agreed-upon values and principles in national regulatory systems (Yang and Percival).
- BUT - while environmental law might be more global can't think about in isolation of legal culture.
Obvious variations among national and local environmental regulatory systems - systems often rooted in a country's particular cultural and social mores or political idiosyncrasies - THUS
they are likely to persist despite greater regulatory harmonisation (Yang and Percival).TRANSNATIONAL ENVIRONMENTAL LAW
Transnational law is regulations that have effects beyond national boundaries (Koh).
Fisher argues that there is little coherent understanding of what transnational environment law is and we need to distinguish between wishful thinking and empirical analysis.
Needs a distinction drawn between is and ought in transnational EL discourse (Fisher).
Carlane and Faber argue that framing the analysis in terms of transnational environmental law may improve understanding of how these systems come into being, exist, interact and evolve.
Heyvaert argues that transnational environmental law calls into question the accuracy of representing the legal system as a hierarchically organised, regimented and fully articulated structure one of transnational law's chief functions is to enable the peaceful coexistence of heterarchical normative regimes.
Transnational environmental law is not simply international environmental law with a sexier title
rather, it breaks the frame - by forcing scholars not to privilege one legal culture over another
AND also to take legal culture seriously while paradoxically transcending the boundaries of legal cultures (Fisher).
- Transnational law overlaps with polycentricity recognises the multilevel governance context in which contemporary environmental law unfolds (Carlane and Faber).1 Legal Transplants-National schemes that act as a model rule for horizontal application particularly in demand (Bogojevic).
Deliberate copying and adaptation of significant statutes or particular doctrines of law (Watson).
Integration of foreign norms into host systems (Boute).
Wholesale importation by countries with less developed legal systems attempt to "catch-up"
with more sophisticated systems (Yang and Percival).
Debate re impact of legal transplant on environmental protection in host legal system (Boute):
a. ON ONE HAND - Yang and Percival argue that importation of foreign environmental law tools can assist law reform in other countries.
b. ON THE OTHER HAND - Bogojevic questions the possibility of successful transplantation without consideration of social, political and economic forces underlying development of EL.
Even if legal systems appear to share common elements - Watson argues that it's impossible to set up a theory of general legal development applicable to all or many unrelated societies.
Cf. Yang and Percival argue that the endeavour of global environmental law doesn't attempt to set out a theory of general legal development - BUT does break with Watson's premise that legal systems and cultures can't share fundamental similarities.
Legal transplants must be domesticated to fit into their new context or the transplant would run the risk of being rejected knowledge of both the implementing law and the hosting legal system is required (Bogojevic).
When assessing whether a law may be transplanted to another system need to look at how closely the law is linked with the foreign legal structure (Boute) - eg EU ETS as an EUspecific legal construction (Bogojevic).
THUS - for an effective understanding of global EL need a thorough understanding of what is either analogous or different between systems (Yang and Percival).
The Importance of Learning-
Arup and Zhang highlight need for regulators to learn by doing in their approach to the regulation of carbon markets when creating new markets, regulation is likely to be exploratory and experimental.
Ostrom argues that polycentric systems have considerable advantages over other governance systems because of ability to learn and adapt better strategies.
Participants in polycentric systems have advantage of using local knowledge and learning from others also engaged in trial-and-error learning processes (Ostrom).
Yang and Percival argue that over time global environmental law principles will be able to provide a valuable toolbox with experiences and examples of many environmental regulatory systems.
Yang and Percival notes that there has been a large amount of interest in China to learn from foreign experience with environmental regulation - eg EU ETS (Boute).
CO-PRODUCTIONLaw and the problems it is regulating are co-produced (Fisher; Jasanoff).
Co-production is a process of framing the ways in which we known and represent the world are inseparable from the ways in which we choose to live in it (Jasanoff) - THUS environmental problems can be framed in different ways by different legal cultures (Fisher).
POLYCENTRICITYEnvironmental problems are collective problems and there is a shared interest in resolving.
Polycentric systems are characterized by multiple governing authorities at different scales rather than a monocentric unit each unit within a polycentric system exercises considerable independence to make norms 2 and rules within a specific domain (eg family, community, local government, state, region, country,
international regime) (Ostrom).
HOT LAWEnvironmental problems require stretching the legal imagination (Fisher) creating frames of action in hot situations of polycentricity, scientific uncertainty and normative conflict - the object of regulation is not fixed and law plays important role in identifying and defining problem (Fisher).
Controversies which indicate the absence of a stabilised knowledge base usually involve variety of actors (Callon) identifying environmental law as hot emphasises that environmental law issues aren't just controversial, but the controversies are structural and foundational (Fisher).
3 LEGAL CULTURE
Nelken describes legal culture as patterns of social behaviour, attitude, values, aspirations, mentalities and ideas that give a law or regime their particular meaning.
Legal culture is a ubiquitous concept it reflects a fusion of social, political and economic forces that impact a law's development, significance and process of implementation (Bogojevic).
According to Bogojevic - legal culture is a series of internal factors, including:
architecture of legal institutions;
and/or external elements - comprising:
e. social behaviour;
f. attitudes to judicial decisions; and g. informal organisation of behaviour within a community.
- Premise that environmental law is above legal culture fails to recognise the importance of legal culture .
Law is not simply a set of rules it is a cultural phenomenon that is not easily delineated from other cultural phenomena - as it is formed by them (Fisher, Lange and Scotford).
- The concept of legal culture can help reveal the broader historical and societal context that shapes the interpretation and development of law (Webber).
EU LEGAL CULTURE-Rome Treaty silent on the environment - BUT with essential objective of the "constant improvement of the living and working conditions of peoples" in 1985 - in ABDHU CJEU recognised environmental protection as part of the essential objective (before explicit introduction of environmental title).
SEA Treaty in 1986 (predecessor to TEU and TFEU) with the aim of creating a single EU market included the first explicit introduction of environmental protection into the treaties.
Lisbon Treaty in 2007 created TEU and TFEU follow economic rationale while seeking to protect high social and environmental standards (Webber).
Vedder argues that Lisbon Treaty doesn't go beyond confirming an existing reality (no changes from SEA Treaty) disappointing for environment as contains no changes at all - except climate change which is a political signal and cosmetic change.
Art 191(1) TFEU states that objectives of EU environmental policy - incl. preserving, protecting and improving the quality of the environment, promoting measures at international level to deal with regional or worldwide environmental problems (in particular combatting climate change).
Art 191(2) TFEU states that the EU policy on the environment shall aim at a high level of protection and affirms importance of the precautionary principle, the preventive principle, that environmental damage should as a priority be rectified at source and the polluter pays principle.
The high level of protection requirement provides a potentially important counterpoint to the centrality of the economic market-based objectives in the EU - BUT it isn't specific and is likely to be reviewable at the margins - eg in Gianni v Safety Hi-Tech - CJEU
concluded that high level of protection need not be the highest level of protection that is technically possible (Lee).
Under a purposive framework - the EU environmental law serves two different functions: (1) market integration - nb: first environmental standards were product standards with the primary rationale being to 4 enable the common market; and (2) fulfilling the political desire to have an explicit and progressive EU
environmental policy (Fisher, Lange and Scotford).
Both purposes often operate simultaneously - not in tandem - BUT sustainable development is one policy area where the two purposes combine or overlap.
The EU has a law-centred market structure aiming at market harmonisation (Weatherill).
Positive harmonisation: common EU rules (Directives, Regulations and decisions) in order to establish a common internal market and other related EU policies.
Negative harmonisation: MS bound by common rules preventing them from putting in place trade barriers (Art 35 TFEU requirement of free movement of goods).
Art 114(1) allows the EU with ordinary legislative procedure to harmonise national laws and practices for the achievement of the objectives of establishing / ensuring the functioning of the internal market Art 114(3) provides that EU proposals for internal market will take as a base a high level of protection (of health, safety, environment and consumer) - taking into account any new development based on scientific facts.
Harmonisation affecting environmental protection is aimed at improving the functioning of the internal market - BUT also involves a vertical transfer of responsibility from MS to EU (Weatherill).
MS with tough laws (eg Germany) have strong incentives to promote EU-level rules to avoid competitive disadvantage (Weatherill).
EU Market CultureMarket discourses in EU caught in spiderweb of creating prosperity and competitiveness - BUT also securing integration and environmental protection within framework of the competences (Bogojevic).
Market with regulatory goals including environmental protection - eg Art 114(3) (Bogojevic).
Movement away from command and control (due to potential effects on internal market) towards
Better Regulation Agenda - establishes a strong interrelationship between competitive markets and environmental protection.
Highlights close nexus between market and environmental protection in legal culture .
Weatherill argues all EU-rules are integrated into EU legal culture (incl. Better Regulation) because:
a. Any reform in EU directly linked to competence and institutional framework - eg ETS favoured over Pigouvian carbon tax because based on ordinary legislative procedure and conforms with subsidiarity principle (Lenaerts).
b. Better Regulation Agenda recognises regulation plays a key role in curing market failure -
uniquely possible in EU because the market is a legal construct it exists to deliver sustainable prosperity for all - THUS regulation has necessary and positive role to play (Weatherill).
Competence is very important for EU environmental law .
EU harmonisation of environmental protection aimed at improving functioning of internal market
- BUT also involves vertical transfer of responsibility from MS to EU (Weatherill).
Since Lisbon Treaty explicitly distinguishes between exclusive competence and shared competence.
Environmental and internal market competences both shared (Art 4 TFEU).
Environmental title (Arts 191-192 TFEU) and internal market (Art 114 TFEU) are most common bases for positive harmonisation for environmental protection.
5 Environmental measures are subject to ordinary legislative procedure (requires joint adoption of legislation by EU Parliament and Council - qualified majority) - BUT measures of fiscal nature are subject to special legislative procedure require unanimity in Council (Art 191 TFEU).
NB: makes the use of environmental taxation extremely difficult for EU - eg opposition to EU
carbon tax proposal in 1992 led to very weak Directive in 2003.
Subsidiarity mandates areas which fall within EU exclusive competence can only act if and in so far as objectives of proposed action can't be sufficiently achieved by MS / can be better achieved at EU
Subsidiarity not always easy to apply (Lee).
Subsidiarity is a core principle of EU law as it structures the law-making process a lens through which to view, negotiate and navigate legal frameworks (Fisher, Lange and Scotford).
Progressive EU Judiciary--
CJEU's role is expressly articulated in Art 19 TEU - to ensure that in the interpretation and application of the Treaties the law is observed CJEU has used this to construct EU environmental law.
THUS - undoubtedly a key institution in EU's constitutional architecture (Bogojevic).
Constitutional role gives EU judiciary great scope for innovative doctrinal reasoning
AND need to define their own institutional identity in elaborating EU law (Scotford).
Skeletal nature of Treaty provisions ensures heavy reliance on interpretative role of CJEU (Weatherill).
EU courts progressive (partly through necessity) in articulation of novel body of law (Scotford).
Bogojevic argues that the CJEU has played a role in developing environmental protection by legitimising market measures aimed at protecting the environment when EU lacked strict competence pushed for environmental protection in balancing trade and free movement objectives vs environmental objectives.
In ABDHU (before explicit codification of environmental competences) - CJEU held that environmental protection is a mandatory requirement ("one of the Community's essential objectives") justifying restrictions to the economic freedoms of the Treaty by EU institutions.
In Walloon Waste - CJEU found that waste is a "good" within Art 34 TFEU - THUS can be subject to quantitative restrictions on imports - BUT held Belgium could justify absolute prohibition of waste from another MS into Walloon due to mandatory requirements on protection of the environment.
CJEU emphasised need to take into account the principle that environmental damage should be remedied at the source - THUS waste had to be disposed of as close as possible to its source.
Scott argues that the EU's trade-related environmental measures to secure compliance with EU law represent robust unilateralism not pure unilateralism as they provide for escape routes that obviate the need to demonstrate compliance with the EU norm.
The EU's ultimate goal isn't to enforce compliance with EU rules abroad but to galvanise or incentivise regulatory or normative engagement elsewhere - eg EU ETS / WTO GMO
Scott argues that an advantage of EU unilateralism is that it promotes polycentricity can lead to a regime complex for climate change favouring loosely coupled sets of specific regimes operating at different levels of governance.
A polycentric system has advantages over a comprehensive integrated regime more politically realistic and flexible (Keohane and Victor).
Similar to arguments that Federalism can offer some advantages (incl. regulatory experimenting and learning) multilevel governance associated with a regime complex can create incentives 6
for regulatory innovation and learning across different States (Keohane and Victor) - see also
Arup and Zhang and Ostrom.
The EU approach can incentivise normative engagement elsewhere and also enter into dialogue with individual states - THUS enjoying opportunities to learn (Scott).
US LEGAL CULTURE-
Environmental law in the US is a replication of the political debate - eg parties in Massachusetts v EPA
are basically blue states and pro-regulation groups vs red states and anti-regulation groups (Fisher).
Republican Congress has attempted to redefine science by the EPA Fisher emphasises that law may ground discourse - BUT the socio-political situation doesn't disappear.
Adversarial legalism is inherent feature of US legal culture accountability through litigation (Fisher).
In the early 1970s, the US established administrative bodies to protect the public from a wide range of environmental and health risks (incl. EPA) mandate included specific legislative grounds of review different to previous conceptions of JR.
Climate of increasing anxiety that decision-making should be accountable - best ensured through JR (Fisher).
ALSO - came at a time of exponential growth in administrative law litigation courts became the arenas for debate about the role of the EPA and law became the discourse (Fisher).
AUSTRALIAN LEGAL CULTURE-
Although influenced by US and UK administrative law doctrines Australian administrative law developed on its own terms with a clear doctrinally rule-bound nature (Fisher).
Following creation of AAT administrative constitutionalism discourses in Australia shaped by two very different types of review - judicial and merits review (Fisher).
Cf. with US administrative law culture the ambiguous nature of merits review had a profound effect on how the precautionary principle has been interpreted in Australia (Fisher).
Reviewing courts and tribunals have understood their legal roles in different ways and this has resulted in them promoting different models of administrative constitutionalism (Fisher).
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