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Environmental Principles Notes
What are environmental principles?
Fisher, Scotford and Lange (2019) describe environmental principles as an amorphous group of policy ideas concerning how environmental protection and sustainable development ought to be pursued.
They are pithy catchphrases that are used in policy, political and philosophical jargon
Despite this, these principles are increasingly taking on legal roles
Scotford (2017) says that "[t]here is no definitive and universal catalogue of environmental principles. Further, it is not possible to state definitively what an environmental principle is or means … [E]nvironmental principles are primarily policy ideas concerning how environmental protection and sustainable development ought to be pursued"
They are policies in the Dworkinian sense of "collective goal[s] of the community as a whole"
o This brings into question whether or not they have any legal identity at all
They certainly have no pre-programmed legal identities, but can assume an identity in the context of a given legal system
NOTE: the legal definition of any environmental principle will depend upon the particular legal context in which it is situated
The most commonly cited catalogue of environmental principles is found in the Rio
Declaration on Environment and Development.
This is a soft law instrument in international terms - that is, its principles are not formal statements of law
There is no consistent concept of a 'principle' in this declaration - the Rio principles represent a range of ideas including sociological considerations such as access to justice; scientific issues; and overarching ideas such as sustainable development
Lang (1999) identifies the fact that these principles are not legally binding
However, this does not detract from their importance - they are useful and important tools. They have the potential to:
Inspire the creation of new customary law
Operate as interpretive guidance
Environmental principles are popular in policy terms because they are pragmatic points of agreement in international negotiations without binding states to particular commitments.
According to Scotford (2017) they are politically convenient, and have populist appeal, as well as ethical force
They are concepts that have open-textured legal identities and can reflect new and transnational approaches to environmental problems that are not conventionally legal
They can be used as shorthand for legally (and politically) complex developments
Further to this, they represent the post-modernism inherent in environmental law (de
Environmental principles represent an area of law characterised by an increase in:
discretion, competing norms, multiple jurisdictions, and openness to extra-legal spheres, including economic, ethical and policy spheres
What is sustainable development?
The concept of sustainable development is highly contested.
The old definition given in the Brutland Report is still often used today - sustainable development is "development that meets the needs of the present without compromising the ability of future generations to meet their own needs"
o Within this, "development" is normally understood to refer to a progressive transformation of the economy and society
The report refers to a range of issues driving sustainable development in policy terms:
Equity between nations in sharing the world's resources
The concerns of developing nations in promoting their own economic wellbeing
Demographic (population) developments
The satisfaction of human needs and aspirations
Environmental, social and economic considerations are generally thought to be the three pillars of sustainable development
Tarlock (2001) has argued that sustainable development is a paradox - it can mean many things to many people depending on their viewpoints and agendas. For this reason, it is thought to lack clarity
There is contention as to how anthropocentric the focus of sustainable development should be
Fisher, Scotford and Lange (2019) suggest that the more anthropocentric the focus,
the more likely it is that the balancing of environmental social and economic considerations will squeeze out environmental priorities
BUT: will this always necessarily be the case? Is there not anthropogenic value in protecting the environment
Bosselmann (2008) makes a powerful case for the promotion of an ecologically focused 'legal' principle of 'sustainability' which is separate from the political (and legally) messy concept of sustainable development
He formulates this norm as an obligation to promote long-term economic prosperity and social justice within the limits of ecological sustainability
As Maria Lee points out, sustainable development is a 'dynamic and open' concept that requires a political exercise to assess environmental, economic, and social effects in any particular case
There is no single word or phrase that can shortcut this need for detailed argument as to environmental prioritisation in decision-making
Legal Role - UK
Sustainable development is a relatively high-profile principle in UK law as it has been incorporated into a range of statutes (s4 of the Environment Act 1995; s39(2) of the
Planning and Compulsory Purchase Act 2004; s4(1) Local Government Act 2000)
The obligations contained in these statutes only requires public bodies to
'contribute' towards the achievement of sustainable development
This element of discretion, coupled with the definition ambiguity of sustainable development as a concept minimises the justiciability of the statutory obligations
The most ambiguous statement of the principle of sustainable development is to be found in the Well-being of Future Generations
(Wales) Act 2015
s4 of the Act refers to a prosperous Wales, a resilient Wales, a healthier Wales, a more equal Wales, a Wales of vibrant culture, and a globally responsible Wales
What is the precautionary principle?
The precautionary principle has been defined as being deeply ambivalent and apparently infinitely malleable, accommodating a range of views (Fisher, Scotford and Lange, 2019).
It could include both:
o Extreme views about mandating cautionary regulation in cases of controversial and uncertain environmental risks, or
More procedural ideas requiring the conducting of an adequate assessment of risks
Fisher (2007) refers to a common version of the principle which asserts that "[W]here there is a threat to human health or environmental protection, a lack of full scientific certainty should not be used as a reason to postpone measures that would prevent or minimise such a threat" This is different to the principle of prevention according to de Sadeleer (2002):
Precautionary principle - seeks to regulate and prevent harm from uncertain environmental risks
Preventative principle - seeks to regulate and prevent harm of known environmental risks
Legal Role - UK
Despite largely dismissive responses by English courts to arguments based on the precautionary principle (Blackfordby), some cases have acknowledged a potential role for the principle in reviewing administrative decision-making
R (Amvac Chemical) v Secretary of State for Environment, Food and Rural Affairs
Held: Crane J was willing to review a decision suspending regulatory approval of a particular pesticide on the basis of its compliance with the precautionary principle, but only if the environmental-decision maker had purported to apply the precautionary principle 'as a term of art or any settled, specific or identifiable mechanism or methodology'
Here the Secretary of State had not sought to rely on the principle and there was thus no reason to examine the appropriateness of the risk assessment undertaken
NOTE: the application of the principle was entirely influenced by the UK administrative judicial culture
This case mirrors the approach under EU law but it is a relatively isolated decision since the principle has not
(to date) been included explicitly in many domestic statutory or policy measures
What is the polluter pays principle?
This principle requires that polluters should pay for the environmental harm that they cause
This principle is differentiated from others due to its economic dimension
It can be understood as a principle which seeks to correct market failures by internalising the costs of environmental pollution
Legal Role - UK
There are no express references to the polluter pays principle in UK legislation
However there are various statutory regimes that implement the polluter pays principle in various ways
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