Environmental Protection, Law and Policy: Text and Materials

Front Cover
Cambridge University Press, 2007 M07 19
This 2007 book examines environmental law from a range of perspectives, emphasising the policy world from which environmental law is drawn and nourished. Those working within the discipline of environmental law need to engage with concepts and methods employed by disciplines other than law. The authors analyse the ways in which legal activities are supported and legitimated by work in traditional scientific or technical domains, as well as by certain more obscure but also influential cultural or philosophical assumptions. A range of regulatory techniques is explored in this book, through a close examination of both pollution control and land use. The highly complex nature of current environmental problems, demanding sophisticated and responsive legal controls, is illustrated by several in-depth case studies, including legal and policy analysis of the highly contested issues of genetically modified organisms and renewable energy projects.

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Brief review: This text provides something that is rare in the world of environmental law textbooks: a detailed and painstaking elaboration of landmark concepts within the field of environmental law, one that is embarked upon from numerous theoretical points of view - from the spectrum of varying viewpoints in environmental ethics and values, to economic analysis, to public participation theory, across the terrain of regulatory theory, and considers in detail the role of science in environmental law. The authors avoid the all too common trap of getting caught up by laboured descriptions of the latest (transitory) details of environmental statutes in various jurisdictions, instead placing the emphasis on concepts, arguments, analysis and viewpoints put forward by those documents. In terms of use of "materials" the text is refreshing in that it provides only sharply edited references from key documents and learned analysis. The use of materials does not overwhelm the main body of writing, another divergence from a common shortfall of other volumes of text and materials. Holder and Lee combine detailed chapters concerning approaches in environmental law in addressing pollution with others addressing environmental impact assessment, nature conservation law, and land use planning law. They close by bringing some of these topics together with an illuminating case study of the role of planning law and public participation in the UK in the approval of wind farm developments. Dr James Prest, Australian Centre for Environmental Law, ANU College of Law, Australian National University, Canberra, Australia.  

Selected pages

Contents

committed with their consent was due to their neglect or
387
example if the Agency needs detailed technical data about pollution
390
environmental crimes they are only rarely used29 deemed too harsh
395
The next extract involves an appeal against the 4 million
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when applied to environmental laggards43 There is now growing support
401
noncompliance in the Union that is the systemic but elusive
407
engagement with Member States that is where Member States
413
administrative scheme under which regulators are able to require polluters
415

GM technology include the possibility of modifying a crop to
73
For this kind of reason proponents of biotechnology find Malthusian
76
implicit in the trial and the possible alternatives were at
79
the Agriculture and Environment Biotechnology Commission AEBC set up in
80
GM Nation? was clearly flawed in many important respects as
82
is one indication of that an issue we will revisit
84
3
85
Aarhus Convention real teeth in the Member States And although
87
the basic ideology of liberal democracy in a capitalist economic
88
inescapably political nature of environmental decisions and the delegation of
89
Deliberative theories often assume that deliberation takes place within existing
91
the environmental sphere It reminds us that deliberation should be
93
human rights in the environmental field focussing on procedural rights22
100
In the following three sections of this chapter we examine
101
the review procedure provided for in accordance with article 9
104
pp 43751 Restricting mandatory access to publicly held information is
106
A broad interpretation of public responsibilities or functions and public
107
these purposes closely follows the broad approach taken in the
108
Art 64 by this late stage of a process participants
113
T9404 European Environmental Bureau v Commission
126
of public participation particularly when elected representatives with a more
130
future generations places them in a good position to augment
131
Part II
135
4
143
a high level of protection and improvement of the quality
164
perspective the main objective of environmental policy integration is to
167
receive funding to bring their economies up to a certain
176
determined exactly what level of environmental protection should be achieved
179
in the face of a threat of serious or irreversible
180
considerable political as well as legal strength We see this
184
5
186
Article 4
188
interests in the food chain The next apex of the
192
Part III
211
invoked The following extract addresses the need to think about
214
6
217
Sustainable Development For current purposes its most significant agreement
221
Earth for example criticised the absence of targets and the
231
method has been highly contentious As we discussed in Chapter
232
consumption over time eg how equally or justly consumption
235
without populations of fish a refinery without petroleum deposits an
236
growth But most renewable resources are part of a complex
237
longterm perspective to decision making23 Bringing the very long term
238
communities and personal wellbeing This will be done in ways
247
are intended to be compatible parts of a general framework
249
Social justice
250
Ignoring the possibility of limits trusting always in our capacity
256
its most valuable function The above examples are simply intended
262
Africa80 had been set up by the British Prime Minister
263
7
264
arrangements others see such problems as simpler albeit complex pragmatic
272
Agreement shall be construed to prevent the adoption or enforcement
273
is applied Although PPMs were not at issue the question
281
say two years would always and necessarily be sufficient to
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184 We disagree with Japan The application of Article 57
295
measures need to be based on ie sufficiently warranted or
300
that planned public consultations were not appropriately a component of
303
protection a Member determines to be appropriate in accordance with
313
Part IV
319
the essence of the continuing relationship found in most industrial
320
8
323
development of nuclear power provided an outlet for more general
324
Following a review of the fragmented origins of governmental control
325
protection across all policy areas is much more demanding In
334
final word on the legality of an activity Individuals and
348
that the suggested procedures might involve needless interference with
351
9
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derogatory intent when the wellunderstood shorthand of command and
353
Pollution Prevention Act 1876 This failed spectacularly to appreciate the
355
have stimulated the development of a new generation of Community
359
Distinctive national approaches to regulation can be identified The UK
364
designed both to allow outsiders to keep national regulators and
374
substantial changes in the best available techniques make it
375
Transboundary consultation in IPPC implies an extension of the issues
378
10
381
11
417
in environmental administration then in the early days this was
419
Secondly taxes might be used to influence behaviour in an
424
In a 1996 study on European political responses to climate
425
allowances is a new opportunity for environmental gain Whether
430
A fundamental element of reflexive law for environmental lawyers is
436
environmentally beneficial behaviour However whilst EMAS has many
442
ate but it is both superficial and limited to those
451
receive an allowance by weight for the landfill of biodegradable
456
that can emerge when decisions are taken at different levels
458
questioning the need for mobile telephones or computers or refrigerators
459
Part V
461
12
469
particular time In this context the ability of the planning
470
his vision of the garden city had a distinctly contemporary
475
of planning in its infancy is that the key role
477
farming encouraged by the majoritys opinion and the main legal
482
4 The needs of agriculture including the protection of good
484
environmental decision making an imperative of environmental law and
489
of development This meant that planning consent for development projects
490
intervene further to prevent pollution was limited by government policy
498
poor information lack of central guidance professional jealousies and the
499
ambit of spatial planning for ostensibly environmental reasons The Report
502
13
505
planning This has become the main influence on policy for
506
participation in planning7 we first outline the main elements of
510
existence of specialist pollution control agencies is no more than
518
recommendations of the inspector36It is most likely that such major
522
By raising the
526
us as a system of meaning and which links often
532
other provisions for the public to participate during the preparation
538
On one level the recent Government statements on participation do
539
legal controls is taking place alongside the process of policy
547
14
548
indirect forms of regulation such as negotiated agreements financial incentives
552
and individuals4 We consider these arguments and the future development
554
said environmental assessment may also provide an avenue for popular
560
securing absolute environmental protection in a manner which similarly
564
The developer further used its preparation of the environmental statement
567
by international organisations such as the Organisation for Economic
568
example of the apparent dichotomy between expert scientific opinion and
570
Furthermore it is difficult to pursue noncontradictory aims and to
571
instrument applied to applications made after 2000 but the Wellsjudgment
590
thereby narrows the opportunity for the consenting authority to overlook
591
In terms of making a difference to decision making the
597
One important distinction between the EIA and the SEA Directives
601
The practice of carrying out postassessment monitoring might also carve
606
15
611
of assessment in the case of a proposed wind farm
614
women Sue Elworthy for example sees similarities between delineating areas
618
process must therefore inevitably remain a matter of best judgements
620
NCC regard the site as one of special scientific interest
624
These features of the SSSI regime its voluntary nature
625
ii Economic and political influences
639
paragraph 4 the competent national authorities shall agree to the
648
making such judgements is not vested exclusively in the individual
655
and supposition without a valid scientific underpinning126 which made up
660
vehicle for new institutional arrangements and the integration of conservation
669
16
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designating areas for particular purposes in this case agricultural land
671
Biodiversity today is passing through a period of major crisis
672
where there are no alternative solutions to the proposed plan
677
discussed by Susan Owens and Richard Cowell in an account
679
Environmental rules of this kind do not fit within the
686
The system for the protection of hedgerows established by the
691
Increasingly the focus of conservation law is upon recognition of
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17
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The following article published in the newsletter of the Environmental
695
the local level where the immediate effects of the development
699
farms solely on the basis of local opposition44However since it
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In the light of cases such as this one should
712
a marked policy towards offshore locations a geographical shift which
719
16 Summary findings of the Environmental Impact Assessment
733
about whether the project will proceed However in terms of
735
In summary this proposal has been highly controversial and divisive
742

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Common terms and phrases

Popular passages

Page 205 - If action by the Community should prove necessary to attain, in the course of the operation of the common market...
Page 374 - We think that the true rule of law is that the person who, for his own purposes, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril ; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.
Page 272 - Ten years ago, at the United Nations Conference on Environment and Development, held in Rio de Janeiro, we agreed that the protection of the environment and social and economic development are fundamental to sustainable development, based on the Rio Principles. To achieve such development, we adopted the global programme entitled Agenda 21 and the Rio Declaration on Environment and Development, to which we reaffirm our commitment.
Page 190 - ... a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States.
Page 319 - Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures... (b) necessary to protect human, animal or plant life or health... (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption ..." 7 The text of Article 2 SPS Agreement states in relevant part: 1.
Page 718 - States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.
Page 269 - Principle 15: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
Page 82 - National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.
Page 269 - The Parties should take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects, where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures...
Page 321 - Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade...

About the author (2007)

Jane Holder is Reader in EU and Environmental Law, Faculty of Law, University College London.

Maria Lee is Senior Lecturer in Law, King's College London.

Bibliographic information