Abstract
Environmental law has developed in response to emerging awareness of and concern over issues impacting the entire world. While laws have developed piecemeal and for various reasons, some effort has gone into identifying key concepts and guiding principles common to environmental law as a whole. The principles discussed below are not exhaustive and are not universally recognized or accepted. Nonetheless, they represent essential principles for understanding environmental law around the world. This chapter describes the fundamental principles of environmental law on which the discipline is based. Also, it explains the basic concepts of environmental law and the relationship between principles and concepts.
TopIntroduction
Environmental law is a collective term encompassing aspects of the law that protect the environment. A related but distinct set of regulatory regimes, now strongly influenced by environmental legal principles, focus on managing specific natural resources, such as forests, minerals, or fisheries. Other areas, such as environmental impact assessment, may not fit neatly into either category but are essential environmental law components.
Early examples of legal enactments designed to consciously preserve the environment, for its own sake or human enjoyment, are found throughout history. In the common law, the primary protection was found in the law of nuisance, but this only allowed private actions for damages or injunctions if there was harm to the land. Thus, smells emanating from pigsties, strict liability against dumping rubbish, or damage from exploding dams. Private enforcement, however, was limited and found to be woefully inadequate to deal with major environmental threats, particularly threats to shared resources. During the “Great Stink” of 1858, the dumping of sewerage into the River Thames began to smell so ghastly in the summer heat that Parliament had to be evacuated. Ironically, the Metropolitan Commission of Sewers Act 1848 had allowed the Metropolitan Commission for Sewers to close cesspits around the city in an attempt to “clean up,” but this led people to pollute the river. In 19 days, Parliament passed a further Act to build the London sewerage system. London also suffered from terrible air pollution, culminating in the “Great Smog” of 1952, which triggered its legislative response: the Clean Air Act 1956. The primary regulatory structure was to set limits on emissions for households and businesses (mainly burning of coal) while an inspectorate would enforce compliance(Norouzi, 2022).
For a better understanding and roots of any argument, one should refer to its theoretical, intellectual, and philosophical foundations. The basis of environmental law, human rights, is the intrinsic value of the environment itself, embodied in environmentalism and Gaia theory and ecofeminisms. The inherent value of the environment means that the environment is not a living and dynamic being and the only bedrock for human exploitation. Therefore, all living things, including animals and ecosystems, are valuable, but not like human beings’ human dignity.
Gaia’s theory “considers the whole biosphere as a quasi-living, superstructural system called the climate of which the human race is only a part.” It has been said that man should never manipulate the earth’s natural order or change any part of it(Norouzi & Ataei, 2021).
The concepts are more general, and the principles are more objective and specific. Applying principles in environmental and international environmental law is the same as principles used in determining legislative and executive strategies.
Principles are the fundamental doctrines on which other principles or rules of conduct are based, and the concepts of ideas or themes are the leading integrators. Principles can serve as a guide in shaping and interpreting the legal norms of the field and filling the gaps in the subject law. Principles and concepts appear in constitutions and internal regulations.
“Principles of international environmental law may come from various proposals, problems or aspirations or threats to the environment, the development of “science and technology, various economic interests, intergovernmental relations, pressure from NGOs, scientific research, expert work, diplomatic negotiations(Shohani et al., 2021).”
The principles of international environmental law can be divided into common principles and specific principles. Common principles refer to those principles common to other traditional areas of international law, such as sovereignty, consent, fidelity, cooperation, good faith, and good neighborliness, but specific regulations refer to those principles that govern the field. Their application is in international environmental law, which includes the principles of joint but distinct liability, payment by the polluter, non-harmful use of the land, and reporting of environmental events(Wiener, 2000).
Key Terms in this Chapter
Sustainable Development: Defined by the United Nations Environment Programme as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs,” sustainable development may be considered together with the concepts of “integration” (development cannot be considered in isolation from sustainability) and “interdependence” (social and economic development, and environmental protection, are interdependent). Laws mandating environmental impact assessment and requiring or encouraging development to minimize environmental impacts may be assessed against this principle.
Precautionary Principle: One of the most commonly encountered and controversial principles of environmental law, the Rio Declaration formulated the precautionary principle: 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 complete scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. The principle may play a role in any debate over the need for environmental regulation.
Public Participation and Transparency: identified as necessary conditions for “accountable governments,... industrial concerns,” and organizations generally, public participation and transparency are presented by UNEP as requiring “effective protection of the human right to hold and express opinions and to seek, receive and impart ideas,... a right of access to appropriate, comprehensible and timely information held by governments and industrial concerns on economic and social policies regarding the sustainable use of natural resources and the protection of the environment, without imposing undue financial burdens upon the applicants and with adequate protection of privacy and business confidentiality,” and “effective judicial and administrative proceedings.” These principles are present in environmental impact assessment, laws requiring publication and access to relevant environmental data, and administrative procedures.
Prevention: The concept of prevention can perhaps better be considered an overarching aim that gives rise to a multitude of legal mechanisms, including prior assessment of environmental harm, licensing or authorization that set out the conditions for operation and the consequences for violation of the conditions, as well as the adoption of strategies and policies. Emission limits and other product or process standards, the use of best available techniques, and similar techniques can all be seen as applications of the concept of prevention.
Polluter Pays Principle: The polluter pays principle stands for the idea that “the environmental costs of economic activities, including the cost of preventing potential harm, should be internalized rather than imposed upon society at large.” All issues related to responsibility for environmental remediation costs and compliance with pollution control regulations involve this principle.
Equity: Defined by UNEP to include intergenerational equity - “the right of future generations to enjoy a fair level of the common patrimony” - and intragenerational equity - “the right of all people within the current generation to fair access to the current generation’s entitlement to the Earth’s natural resources” - environmental equity considers the present generation under an obligation to account for long-term impacts of activities and to act to sustain the global environment and resource base for future generations. Pollution control and resource management laws may be assessed against this principle.
Transboundary Responsibility: Defined in the international law context as an obligation to protect one’s environment and prevent damage to neighboring environments, UNEP considers transboundary responsibility at the international level as a potential limitation on the sovereign state’s rights. Laws that limit externalities imposed upon human health and the environment may be assessed against this principle.