Understand Environmental Law

Environmental laws and policies are predominantly goal-oriented.

Standards, principles and procedures for the protection of the environment are often instrumental to achieve, say, the conservation of fragile ecosystems and endangered species, the preservation of fresh water and other natural resources, the restoration of contaminated soils as well as the stratospheric ozone layer, and the protection of human health. This goaloriented feature is evident in national as well as international law. It is apparent also when legal approaches to managing environmental problems are compared with economic or market-based instruments, such as emission trading, environmental taxes and voluntary agreements and codes of conduct.

National statutes and international treaties, standards, instruments and procedures are assessed with these underlying objectives in mind, and mainly analysed in terms of effectiveness and achievability of the set objectives. Even sustainable development, as an overarching societal objective with obvious environmental connotations, reflects this goal-oriented conception of environmental law and policy. Yet, environmental law also involves priorities, conflicts and clashes of interests - and concerns for justice and fairness. In fact, any drafting, negotiation, adoption, application and enforcement of environmental laws – indeed comprehending environmental law in general – induces justice considerations: i.e. concerns for the distributive and corrective effects of laws and decisions pertaining to health, the environment and natural resources, aswell as concerns for the opportunities of those potentially affected to participate in such law-making and decision-making in the first place. Although well-established concepts in environmental law, whether based on custom or statutes, appear neutral on their face, a closer study, or simply placing them in a context, may reveal disproportionate burdening or restricting effects for certain groups or categories when these concepts are applied. It may also show how certain interests or subjects are ignored or demeaned. Such concerns are indeed raised in local as well as global contexts, and they also include structural issues, such as gender, class, ethnicity and - on a global scale - North-South relations.

We see it in local situations when individuals and neighbourhoods contest the establishment of industrial plants, and when environmental associations protest against activities likely to harm sensitive ecosystems: whose interests prevail in conflict with the interests of others? We see it when neighbourhoods or communities complain that they are disproportionately affected by hazards to health, and even challenging environmental laws for being racist or sexist: how come allegedly neutral laws have such effects? We see it in global climate change negotiations: most states today agree that climate change should be abated, but how are the costs for cutting down CO2 emissions to be discharged among the industrialised and non-industrialised regions? And which regions are worst affected by a failure to combat climate change? We see it
when nuclear wastes are to be deposited: is it fair to pass on the burdens of radioactive wastes to future generations, while the present enjoys the benefits? Already this set of preliminary observations indicates the critical value of considering the distributive, corrective and procedural features of environmental law. Also, sustainable development as such implies such considerations.
Justice concerns trigger academics and activists alike, and in part for the very same reason: to critically appraise existing institutions and to guide for social change. Thus, as argued by John Rawls, principles of justice provide ‘an Archimedean point for appraising existing institutions as well as the desires and aspirations they generate’ and ‘an independent standard for guiding the course of social change’.

1. Critical justice appraisals can reveal unjust distributive effects of legal concepts, institutions and principles with bearing on health and the environment. In so doing, critical appraisals also guide us and may spark off social change and reforms of national, international and transnational institutions. These motives have been essential for the ‘environmental justice’ movement as well. This movement originated in the USA in the 1970s and 1980s,

2. and was largely driven by charges of ‘environmental racism’ in US developmental and environmental policies.

3. It showed not only the disproportionate burdens on certain groups entailed by hazardous activities and substances, but also highlighted the lack of real opportunities for participating in decision-making. The notion of environmental justice has spread to numerous countries and regions of the world,

4. and, while the (in)justice factors may be contextual and differ from one country to the other, it has taken the form of a critical voice, e.g. by revealing what is seen as unjust consequences of existing social arrangements and norms.

5. For the same reasons, concerns for justice arise in the contexts of international environmental law as well.

6. This texts are also framed by the dual motive of critically appraising existing institutions and guiding for social change. Yet, the texts also reflects another motive, namely, to better understand how certain legal regimes, concepts and legislation came into being. Some contributions show to what extent justice considerations influenced negotiations, jurisprudence and legal debate. Rather than providing for one common Archimedean point, however, the book reveals several such points, and several ways of understanding justice in environmental contexts. Yet, while their approaches to justice in environmental matters differ, most contributors nevertheless focus on the procedural, distributive and/or corrective elements of justice, and even stress the link between the procedural dimension and the distributive and corrective repercussions. Some contributions also discuss the theoretical foundations for justice considerations, whether based on social contract theories or on theories of entitlements or capabilities.

7. The thesis framing this texts constitutes a book is that justice considerations arise in just about any legal context involving health, the environment and the use of natural resources. It permeates the development and application as well as evaluation and analysis of environmental laws. In these contexts, justice is an aspiration in its own right, but it also matters for the legitimacy and effectiveness of the policies and laws intended to protect health and the environment. This, of course, does not prevent some contributors from questioning whether environmental justice is the best way to phrase the concerns for the environment,8 or from suggesting a radical shift in the understanding of environmental justice.

8. The answer partly depends on how justice is measured and which interests, factors and subjects are taken into account.  Throughout this book environmental law and environmental matters are broadly understood so as to include not only the protection of the natural environment, but also concerns for health and for sustainable access to natural resources and ecosystem services. Rather than insisting on a strict demarcation between environmental and social matters, this book shows that in some cases these matters overlap and link to each other.
The book is divided into six parts, each one with three to six chapters, titled:
1. The notion of justice in environmental law 
2. Public participation and access to the judiciary 
3. State sovereignty and state borders 
4. North–South concerns in global contexts 
5. Access to natural resources
6. Corporate activities and trade

Although each part dealswith discrete issues, there is still considerable overlap between them. While some of the more general contributions deal with the notion of justice in the context of state sovereignty, global matters and North–South concerns, these issues are also covered by the more specific contributions in Parts III and IV. Gender issues are both dealt with in Part I, on the notion of justice in environmental law, and Part V, on access to natural resources. Participatory aspects of justice are considered in Part II, but are also touched upon in Parts III, V and VI. Justice in the context of access to natural resources is the theme of Part V, but it is also discussed in Part VI. Conceptual matters are not limited to Part I, but occur in all parts of the book. And so on. So the structure is only intended to guide the reader and show the diversity of relevant aspects and contexts, rather than denoting conceptually important divisions.
Together, the twenty-two contributions give a valuable picture of situations where justice considerations arise. Justice is not the only concern when assessing, analysing or debating environmental laws, but it provides highly important entries for appraising environmental laws; as an impetus for social change, and as a means for better comprehending the factors – often not made explicit – behind different legal developments.

Jorge Rodrigues Simão, 19.01.2012

This book will be published by Springer in December 2012. (delayed June , 2013 for treat the   Doha Conference and  the  extension of the Kyoto Protocol and the International Legal Instrument will replace the Protocol)

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