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Law Notes Environmental Law Notes

Environmental Principles Notes

Updated Environmental Principles Notes Notes

Environmental Law Notes

Environmental Law

Approximately 262 pages

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Environmental Principles Notes

What are environmental principles?

Definition

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”

    • 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

Source

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

Popularity

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 Sadeleer, 2002)

  • 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?

Definition

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

    • 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

      • Ecological protection

      • The concerns of developing nations in promoting their own economic wellbeing

      • Demographic (population) developments

      • The satisfaction of human needs and aspirations

      • Boosting productivity

  • 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...

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