30 March 2012 Written by  Tsegai Berhane and Merhatbeb Teklemedhn

The Sources and the Law Making Process of Environmental Law

The Sources of Environmental Law

Environmental law, being a relatively new field, is largely contained in written texts, although some common law principles and relevant and customary international law is emerging. Governments protect the environment on the basis of their various constitutional and statutory powers to promote the general welfare, regulate commerce and manage public lands, air and water. National authorities may accept additional duties to protect the environment by entering into bilateral and multilateral treaties containing specific obligations. Promulgation of regulations and permits by administrative authorities is another important source of environmental law. Reporting, monitoring and civil and/or criminal actions to enforce environmental law are critical components of environmental law systems. Some constitutions also contain reference to environmental rights or duties, making these constitutional provisions and their interpretation and application another potentially important source of environmental law. Litigation enforces the laws and regulations by civil or criminal actions. If a constitution contains a right to a specified environmental standard, the provision must be interpreted and applied. Issues may also arise as to the appropriate remedy, which constitutions usually do not specify. Besides defining obligations for regulated entities, statutory provisions may allow individuals to bring suit against an administrative body that abuses its discretion or fails to comply with its mandate, and in some circumstances allow for direct citizen action against the polluters themselves.

Sources of National Law

The range of subjects that potentially involve environmental issues has a breadth that extends across virtually the entire field of legal regulation. For example:

• Antiquities laws may prohibit looting or unauthorized excavation of protected archaeological or natural sites.

• Regulation of agricultural activities may involve issues of the quality and quantity of water use, as well as limiting recourse to pesticides and fertilizers.

• Public health laws can regulate spraying toxics to eliminate disease vectors such as mosquitoes or raise questions about the safety of vaccines.

• Land use regulation and public trust doctrines may be used for environmental protection.

• Coastal zone management, fisheries and forestry law seek to conserve the resources they regulate.

• Mining and energy laws may regulate the emissions of greenhouse gases and other air pollutants.

• Regulation of industrial activities may establish restrictions on emissions and effluent from industrial operations.

Some environmental cases appear at first glance as consumer protection suits against the manufacturers or sellers of hazardous products. Other cases involve efforts to obtain information about environmental conditions or present actions against government officials and agencies that allegedly have failed to enforce the law. These many topics related to environmental law are regulated by various sources of national law.

A. Constitutional Law

On the national level, many constitutions now contain provisions establishing environmental rights, or set forth governmental duties to protect the environment and the state’s natural resources. More than 100 constitutions refer to a right to a clean and healthy environment, impose a duty on the state to prevent environmental harm, or mention the protection of the environment or natural resources. At the same time, references to constitutional environmental rights raise difficult questions of justiciability, remedies, and the scope and content of such rights. It remains to be seen what role constitutional environmental rights might play alongside common law, statutory, and regulatory means for protection of the environment.

Among states of Latin America, Argentina deems the right to environment a subjective right entitling any person to initiate an action for environmental protection. In a case a court reiterated that [i]:

The right to live in a healthy and balanced environment is a fundamental attribute of people. Any aggression to the environment ends up becoming a threat to life itself and to the psychological and physical integrity of the person.

Even where the right to a healthy environment is not expressly provided, other constitutional rights are being interpreted and enforced by courts in an environmental context. The Supreme Court of India was one of the first courts to develop the concept of the right to a healthy environment as part of the right to life guaranteed by the constitution[ii]. In a subsequent case, the Court observed that the “right to life guaranteed by article 21 includes the right of enjoyment of pollution-free water and air for full enjoyment of life.”[iii]

 

B. Environmental Legislation

Most environmental cases probably appear before judges as part of an effort to enforce statutory or administrative law or as an appeal from administrative decisions, such as denial of a permit or an order to halt emissions.

Legislative texts often establish general environmental policy, supplemented by specific laws and administrative regulations. Broad frameworks of environmental statutes have been adopted in many different countries.

These statutes use common techniques and procedures of environmental protection, including environmental impact and risk assessment, prior licensing, and emission standards. At the same time, they often respond to specific environmental concerns in the particular country, such as the safety and environmental consequences of nuclear power plants, large dams, or extractive industries like oil or coal. In most countries environmental legislation is supplemented and given greater specificity in administrative regulations.

In addition to general framework laws, national laws often regulate a single environmental milieu, or “medium”, e.g. water, air, soil, or biological diversity, due to the particular environmental problems facing a given area, political or economic priorities, or the ease of achieving consensus on a specific environmental issue. While such media-specific legislation can often deal more thoroughly with a particular sector than framework legislation, one difficulty with such medium-by-medium regulation is that it can sometimes overlook the interrelated and interdependent nature of the environment. For judges, such laws may present problems of reconciling divergent requirements or establishing priorities among the competing laws. One means to address this is sectoral legislation, which simultaneously addresses all environmental impacts from a particular economic sector, e.g. chemicals or agriculture.

Promulgation of standards for various pollutants is often a critical component of the legal framework for environmental protection. Standards may be expressed in terms of ambient standards, which are often health based and normally embody broad objectives, and performance standards or technology-based standards to achieve those goals. Countries may use permit systems to elaborate the application of broad standards to specific facilities.

Increasingly, as governments are elaborating their legislative and regulatory treatment of key sectors and pollution sources, they are also moving towards a more comprehensive approach to environmental protection that seeks to integrate pollution prevention and control, i.e. protection against pollution of all natural systems necessary to support the biosphere. The focus of “integrated pollution prevention and control” is on eliminating or at least reducing the input of each polluting substance, noting its origin and geographic target. Integrated pollution prevention and control aspires to a “cradle to grave” approach that considers the whole life cycle of substances and products, anticipates the effects of substances and activities on all environmental media, minimizes the quantity and harmfulness of waste, uses a single method such as risk assessment for estimating and comparing environmental problems, and involves complementary use of objectives and limits.

 

C. Administrative Regulations

Legislation on environmental matters often delegates to administrative agencies regulatory powers, including rule-making, standard-setting and enforcement, to achieve the legislative mandate. In order to achieve environmental protection, many administrative agencies and officers have new powers to obtain information and a wide range of civil enforcement options from orders to injunctions. In many instances citizens have been granted the right to initiate lawsuits to obtain information about the environment or participate in decision making, as well as enforce environmental laws and regulations, including suits against government officials who fail to perform their duties properly. As a consequence, courts and judges increasingly exercise oversight of administrative agencies.

In permit or licensing proceedings, the court is typically asked to determine whether an administrative agency or governing body’s licensing decision was consistent with the legal requirements. Frequently, in assessing the consistency of agency action with legal requirements, courts will confine their review to the administrative record of decision – that body of information and facts that was before the agency at the time the decision was made. A court may need to reject an administrative decision by an administrative agency or governing body if it determines that the law has been applied in an arbitrary manner or one that infringes basic rights.

D. Industry Standards and Codes of Conduct

A growing number of guidelines or codes of conduct have been developed within industry, including the World Industry Council for the Environment, the FAO International Code of Conduct on the Distribution and Use of Pesticides, the Responsible Care Initiative of the Chemical Manufacturers Association, the CERES/Valdez Principles, the ICC Business Charter on Sustainable Development, and the Royal Dutch/Shell Group Statement of General Business Principles. Such private regulation may constrain behavior by exercising a moral or practical (sanctioning) influence. Litigants may argue that breach of such codes or industry standards may be evidence of malpractice or negligence, in an effort to deploy a relatively inexpensive means of evaluating conduct in case of a dispute. The 1990 Valdez Principles were adopted by the Coalition for Environmentally Responsible Economies, a group of investors and environmental organizations. The intent was to create corporate self-governance “that will maintain business practices consistent with the goals of sustaining our fragile environment for future generations, within a culture that respects all life and honors its independence.”

With the advent of globalization, international organizations have devoted attention to drafting codes that apply to multinational enterprises. The UN Sub-Commission on Human Rights approved Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, urging that every effort be made so that they become generally known and respected. Although primarily concerned with human rights, the Norms contain a paragraph on corporate responsibilities in the area of environmental protection[iv]:

Transnational corporations and other business enterprises shall carry out their activities in accordance with national laws, regulations, administrative practices and policies relating to the preservation of the environment of the countries in which they operate, as well as in accordance with relevant international agreements, principles, objectives, responsibilities and standards with regard to the environment as well as human rights, public health and safety, bioethics and the precautionary principle, and shall generally conduct their activities in a manner contributing to the wider goal of sustainable development.

 

International Law

The relationship between national law and international law varies considerably from one legal system to another. International law is considered the supreme body of law by international tribunals and in international relations among states. Thus, a state may not invoke a provision of its national law to excuse its violation of international law. The law of state responsibility provides that each breach of an international obligation attributable to a state automatically gives rise to a duty to cease the breach and make reparation for any injury caused, irrespective of national law. Within states, international law may be legally binding and applied by courts as a result of one or more means that are usually specified in the constitution. Legal doctrine has developed two theories known as monism and dualism in an attempt to explain and classify national practice, but the reality is more complex than the theory. Monism posits a unified body of rules, and since international law is the most complete expression of unified law, it automatically forms part of this body of rules and is hierarchically superior to other law. Dualism sees separate legal orders and looks to each jurisdiction to determine the sources of law and their hierarchy.

In general, the theory of monism and dualism is most relevant to customary (or law not created through written international agreement) international law and even then in limited fashion. Some legal systems require that customary international law be transposed into national law through legislation or executive order before it becomes the law of the land. Other legal systems view international law as automatically part of the legal order and enforceable by judges without legislative action.

The constitutions of Italy, Germany and the Netherlands all have constitutional provisions expressly stipulating that rules of general (or customary) international law are part of the municipal law of the state and enjoys precedence over domestic legislation. Most common law countries consider customary international law to be part of the common law and automatically binding as national law, following Blackstone (“the law of nations, wherever any problem arises which is properly the object of its jurisdiction, is here adopted in its full extent by the common law and is held to be part of the law of the land”).

The position of treaties in national law varies even more; some constitutions specify that ratified treaties are automatically the law of the land and must be applied by judges in cases where an issue concerning them arises. Other states, like the United Kingdom, require that a treaty be incorporated by legislation before the judiciary may apply the agreement. English courts have consistently held that a treaty concluded by the UK does not become part of the municipal law except and insofar as it is made so by parliament. Yet a third group of states, like the United States, distinguishes self-executing treaties which judges may apply from non-self executing treaties that require legislative action before judges may enforce them.

When international law has been incorporated and made binding, it may rank at the level of constitutional law or be superior, equal or inferior to legislation, according to the hierarchy of legal sources, generally stipulated in the constitution.

The extent to which norms arising from international law are justiceable in national courts thus necessarily depends on the manner in which these norms are incorporated in the constitutions as well as on the legal system and jurisprudence of each country. Where international law has been incorporated into the national legal system, judges apply the norms and standards when presented with them in an appropriate case[v].

In some instances, the parties may disagree about whether or not a given international norm in fact constitutes law. This may be particularly true with respect to questions of customary law, which requires evidence of consistent state practice, followed in the belief that it is legally required. In such circumstances, the judge will need to make a decision regarding the existence of the purported norm. Precedent exists in several jurisdictions finding particular norms to constitute customary international law[vi].

Where international law is not binding as part of domestic law, it may still be considered persuasive in interpreting constitutional or statutory provisions, as may the law of other countries or even the views of commentators. The jurisprudence of international tribunals also can be considered in this context. Judges may also find persuasive the law of other nations, especially those whose legal systems are similar to theirs. In Andhra Pradesh Pollution Control Board-II v. Prof. M.V. Nayudu & Others [2001] 4 LRI 657, Sup. Ct. India, the Court referred to the Declaration of the United Nations Water Conference, the International Covenants on Civil and Political and Economic, Social and Cultural Rights, and the Rio Declaration on Environment and Development as persuasive authority in implying a right of access to drinking water as part of the right to life in the Indian Constitution. The Court also made reference to jurisprudence of the European Court of Justice, the European Court of Human Rights and the Inter-American Commission on Human Rights, as well as decisions of national courts of the Philippines, Colombia and South Africa. On occasion, courts have looked to treaties for the meaning of undefined terms in national law. In Ramiah and Autard v. Minister of the Environment and Quality of Life (Mar. 7, 1997), the Mauritius Environment Appeal Tribunal looked to the Ramsar Convention for a definition of wetlands, although the convention had not yet been ratified by Mauritius. The Ministry of Environment agreed that the Convention provided guidance on the issue.

A court may also take judicial notice of studies done by international organizations as evidence of environmental damage. In Pedro Flores y Otros v Corporation del Cobre (CODELCO), a Chilean court of appeals referred to a UNEP study in finding that the coastline in question was one of the most seriously polluted around the Pacific Ocean. Pedro Flores y Otros v. Corporation del Cobre (CODELCO), Corte de Appelaciones (June 23, 1988), Rol 12.753.FS641, aff’d Sup. Ct. Chile (ordering disclosure of information, an expert report on the coastline, and an injunction to prevent further pollution).

Some courts have adopted a rule of interpretation that avoids placing the state in breach of a treaty or rule of customary international law, holding that national law should be interpreted and applied in conformity with the state’s international obligations. Thus, for example, United States courts adhere to the “Charming Betsy” rule, named after the case in which the Supreme Court announced that courts must interpret and apply statutes consistent with international law, unless it unmistakably appears on the face of a statute that Congress intends to modify or reject an international obligation. Murray v. Charming Betsy, 6 U.S. (2 Cranch) 64 (1804). The French Conseil d’Etat also interprets and applies national law in the light of international law. In a case concerning the International Convention on Trade in Endangered Species, the Conseil upheld national law when it found that the Convention clearly permitted the state to adopt stricter measures than those in the Convention. Conseil d’Etat francais, 8 juin 1990, Societe DACO, RJE, 1991/2, p. 236.

 

The Law Making Process: National and International Perspective

The Law Making Process of Environmental Law in Ethiopia

A very important point for assessing environmental law (both at regional and International level) is a clear understanding of the law making process from which it derives. Accordingly, for the national environmental law, there is national parliament which is endowed by the constitution of the country with the power to legislate laws which could be relevant to the environment. Considering the structure of the government of the country at hand there could also be Regional State Councils which are endowed with the same power. Depending on the case there could also be a possibility for courts to make laws. To this effect, this time, as a base for judicial activism, we do have indicative article under Proclamation No 454/2005 which stipulates:

Interpretation of low by the Federal Supreme Court rendered by the cassation division with no less than five judges shall be binding on federal as well as regional courts at all levels. The cassation division may, however, render a different legal interpretation some other time.

To exemplify the above mentioned fact let us cite a provision for discussion from the Constitution of the Federal Democratic Republic of Ethiopia. The constitution under Art. 51(5) stipulates that[vii]:

It shall enact laws for the utilization and conservation of land and other natural resources, historical sites and objects.

Art. 52 of the same constitution that talks about the Powers and Functions of States in Sub-Article 2(d) also prescribes as follows:

To administer Land and other natural resources in accordance with Federal laws

Discussion Questions

At this point, in line with Art. 52 Sub-Art.2 (d) you are invited to discuss the meaning of the word “to administer.” What does the word exactly mean?

Does it also include legislating laws? Are there any domestic institutions established by law for the protection of the environment?  Evaluate their contribution in the protection of the environment?

The Law Making Process of International Environmental Law

Concerning International Environmental Law there is no international legislature, comparable to the national parliament, but there are generally accepted sources from which international law derives, and a variety of international processes through which new international law is made or existing law changed[viii]. Much of international environmental law is the product of an essentially legislative process involving the interplay of international organizations, conferences, diplomacy, codification and progressive development, and international courts, and a relatively subtle interplay of treaties, non-binding declarations or resolutions, and customary international law[ix]. Three features have helped to make this law making process both inclusive and relatively rapid[x].

First, international institutions, including the UN and its specialized and regional agencies and programmes, have played a leading role in setting law-making agendas and providing negotiating forums and expertise.

Secondly, following the model of the 3rd UN conference on the law of the sea, the use of consensus negotiating procedures and package deal diplomacy has created a real potential for securing universality and general acceptance of negotiated texts. In a world of nearly two hundred states with disparate interests, and particularly sharp differences on environmental issues between developed and developing states, such techniques have been essential when dealing with global environmental problems. The 1992 Rio Conference on Environment and Development and the negotiation of the conventions on Climate Change and Ozone depletion illustrate particularly well the importance of a process which is capable of securing universal, or near universal, participation and support.

Thirdly, the use of frame work treaties, with regular meetings of the parties, has given the process, at least in its treaty form, a dynamic character, allowing successive protocols, annexes, and related agreements to be negotiated, adding to or revising the initial treaty. These treaties, together with the institutions they create, have become in effect regulatory regimes. They provide a basis for further, progressive action to be taken as scientific knowledge expands and as regulatory priorities evolve or change. As a result, what may begin as a very bare framework treaty, such as the Ozone Convention, could become a complex system of detailed law with its own machinery for ensuring compliance and implementation of the law.

Above, all these processes are political, involving law-making primarily diplomatic means rather than codification and progressive development by legal experts, although codification and judicial decisions do play a part in affirming the status of customary rules and general principles, leading in some cases to modest evolution in international law. But it is the political process referred to above which represent a real vehicle for law making, which evidently had wide appeal to international community. Moreover, even where, as in the Stockholm and Rio Declarations, the instruments adopted are not formally binding on states, they have in many cases contributed to the development of consistent state practice, or provided evidence of existing law, or of the law-making intention which is necessary for the evolution of new customary international law, or have led to the negotiation of binding treaty commitments.[xi]

Discussion Questions

Are there any international institutions in charge of the protection of the environment? How do you evaluate their effectiveness in protecting the environment? How do you compare them with that of domestic institutions in their effectiveness?


[i] Available at www.eldial.com, Irazu Margarita v. Copetro S.A., Camara Civily Comercial de la Plata, Ruling

of 10 May 1993

[ii] Bandhua Mukti Morcha v. Union of India, 3 SCC 161 (1984) and Charan Lal Sahu v. Union of India, AIR

1990 SC 1480 (1991).

[iii] Subhash Kumar v. State of Bihar, AIR 1991 SC 420, 1991 (1) SCC 598.

[iv] The UN Sub-Commission on Human Rights,  E/CN.4/Sub.2/2003/12/Rev.2 (Aug. 12, 2003)

[v] Raul Arturo Rincon Ardila v. Republic of Colombia, Constitutional Court, Apr. 9, 1996 (applying the

Biodiversity Convention, ILO Convention 169 on Indigenous Peoples and GATT’s TRIPs Agreement).

[vi] Vellore Citizens Welfare Forum v. Union of India, [1996] AIR SC 2715

[vii] Supra note 5, Art. 51(5).

[viii] P.W. Birnie & A.E. Boyle, International Law and The Environment (2nd Edition Oxford University Press, at 10).

[ix] Ibid.

[x] Ibid.

[xi] Ibid.

Last modified on Wednesday, 02 May 2012 13:05