Abstract
An overview of the evolution of environmental protection at a global level is the purpose of this chapter. At the beginning, the authors discuss the emergence of environmental concerns, followed by the second point, which addresses environmental protection at the international level. Third, the phenomenon of criminalizing harmful conduct against the environment is explored, with a special focus on the role of the European Union in this regard. The authors will review the most important social movements, international events with the most impact and the legislative evolution of community law in this area.
TopIntroduction
The conception of the legal asset of the environment as an object of protection is relatively recent, since it did not appear until the post-industrial era, when technological progress and its impact led us to rethink the role of criminal laws, which until now only protected so-called property in “traditional” legal systems.
The so-called “risk society” leads us to a new understanding of society that will condition the actions of the criminal legislator. With each technological advance, new risks appear, so that “an increasingly industrialized society is an increasingly dangerous society”(Brickey, 1996). Thus, technological evolution implies the appearance of new forms of risk that will require criminal treatment.
As a result of the unstoppable economic development, the environment begins to deteriorate notably and resources begin to run out, directly affecting the lives and health of citizens. As a result of this, terms such as quality of life or respect for the environment appear. Public opinion is beginning to take an interest in the environment, producing the so-called “greening” of public opinion. “There is awareness that the imbalances in the biosphere caused by human activity endanger the development and survival of Humanity on the Planet”. In other words, a clear awareness on the part of society of environmental problems originates, which is reflected in the emergence of the first environmental movements. Thus, in the 1970s, as a result of society's concern about the destruction of the environment that surrounds it, the first environmental groups began to emerge, advocating radical changes in environmental policies.
Social discontent over the governments' management of the environment/development binomial grew and soon manifested itself in citizen protests. An example is the Warren conflict, which occurred in 1982 in the United States. This movement began when a polluting waste dump was established near the town of Warren, North Carolina, a low-income area populated primarily by African-Americans. Faced with this action, which was described as an act of environmental racism, the population reacts and begins its protests, producing hundreds of arrests, which soon spread to the national territory, generating local conflicts in Los Angeles, New York, Houston or Chicago(Lazarus, 1994).
These phenomena became institutionalized and transformed in such a way that in the 1990s they became “state networks of the environmental justice movement”. From October 24-27, 1991, 650 activists from around the globe gather for the First National People of Color Environmental Leadership Summit in Washington, DC. It broadens perspectives beyond racial protests against polluting activities and extends the phenomenon of environmental justice, which goes from being a movement for racial justice to a movement for justice for all. The Office of Environmental Justice and the National Environmental Justice Advisory Council were soon created, a phenomenon of entity creation that spreads internationally. For example, the national groups of Friends of the Earth International of England and Scotland are created, which promote the introduction of legislative elements and changes in public administration. In this way, the environmental justice movement is organized, resulting in institutions that will advocate for the right to a suitable environment for all citizens.
As we said, we are in a moment of great technological development, which is going to cause great environmental disasters. Thus, of those produced in the seventies, the industrial disaster of Séveso, in the region of Lombardy, Italy (1976), or the disaster at the Three Miles Island nuclear power plant, in the State of Pennsylvania, United States (1979). These environmental accidents caused by human action will occur continuously, highlighting in the following decades the Bhopal disaster, India (1984), the Chernobyl nuclear accident, Ukraine (1986), or the Fukushima I nuclear accident, Japan (2011).
Key Terms in this Chapter
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.
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.
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.
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.
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.