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ES167: ENVIRONMENTAL ASSESSMENT

ES167: ENVIRONMENTAL ASSESSMENT. November 15, 2009 Lecture 18 Environmental Institutions and Law. Guest Speaker: Professor John A. Boyd. Environmental Institutions and Law. Source: Antonio A. Oposa Jr. Environmental Institutions and Law By John A. Boyd.

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ES167: ENVIRONMENTAL ASSESSMENT

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  1. ES167: ENVIRONMENTALASSESSMENT November 15, 2009 Lecture 18 Environmental Institutions and Law Guest Speaker: Professor John A. Boyd

  2. Environmental Institutions and Law Source: Antonio A. Oposa Jr.

  3. Environmental Institutions and LawBy John A. Boyd Formerly a lawyer at the Asian Development Bank (ADB) and U.S. Department of State; currently a Lecturer in the Graduate School of Law, San Beda College, Manila, Philippines, a member of the Commission on Environmental Law of IUCN (World Conservation Union) and President of the Glen Educational Foundation, a Philippine corporation with a focus on Governance, Law, and Environmental Networks views expressed are not necessarily those of ADB, U.S. Government, or IUCN

  4. ENVIRONMENTAL INSTITUTIONS AND LAW I. INTRODUCTION II. ENVIRONMENTAL INSTITUTIONS A. NATION STATES B. TREATY ORGANIZATIONS INCLUDING THE UN C. PRIVATE SECTOR D. FOUR EXAMPLES III. ENVIRONMENTAL LAW A. INTRODUCTION B. FOUR QUESTIONS IN INTERNATIONAL LAW C. SUSTAINABLE DEVELOPMENT AS A CONCEPT D. MULTILATERAL ENVIRONMENTAL AGREEMENTS (MEAs) E. JOHANNESBURG PRINCIPLES ON THE ROLE OF LAW AND SUSTAINABLE DEVELOPMENT IV. CONCLUSION

  5. ENVIRONMENTAL INSTITUTIONS AND LAW I. INTRODUCTION • Your questions are welcome, but I may not be able to answer every good question. B. Many environmental institutions are based on law. “The aim of environmental law is to reduce the anthropogenic sources of environmental harm by modifying human behavior.” Kiss & Shelton, International Environmental Law, (2007), p. ix. C. Environmental law is like a layer cake, with i) international law the top layer, ii) national law the next layer down, iii) local law further below, iv) but the bottom layer is based on experience and actions by scientists and others, including lawyers.

  6. ENVIRONMENTAL INSTITUTIONS AND LAW • INTRODUCTION An example of the evolution of environmental law from the Philippine Supreme Court--Oposa v. Factoran, described on page 188 of An Introduction to Sustainable Development [ISD]: The Petitioners, minors represented by their parents, and a Philippine NGO, sought to have the defendant, the Philippine Secretary of the Department of Environment and Natural Resources, ordered to rescind all existing Timber License Agreements, and desist from approving new agreements. Professor Oposa argued in behalf of children that a right to the environment had been breached.

  7. Inter-Generational Responsibility Source: Antonio A. Oposa Jr.

  8. RESPONSIBILITY TO FUTURE GENERATIONS “The case … has a special and novel element. Petitioners claim that they represent their generation as well as generations yet unborn.” Capacity Building for Environmental Law in the Asian and Pacific Region: Approaches and Resources, Donna Craig, Nicholas A. Robinson, and Koh Kheng Lian, eds., ADB 2003, Vol. I, pages 720-726.

  9. RESPONSIBILITY TO FUTURE GENERATIONS Chief Justice Hilario Davide Jr. for Philippine Supreme Court: “Their personality to sue in behalf of the succeeding generations can only be based on the concept of inter-generational responsibility.” (Ibid) Source: Antonio A. Oposa Jr.

  10. RESPONSIBILITY TO FUTURE GENERATIONS Philippine Supreme Court: “We find no difficulty in ruling that they can, for themselves, for others in their generation and for their succeeding generations, file a class suit.” (Ibid) Source: Antonio A. Oposa Jr.

  11. RESPONSIBILITY TO FUTURE GENERATIONS Davide: If the present generation failed to represent future generations, “the day would not be too far when all else would be lost not only for the present generation, but also for those to come-- generations which stand to inherit nothing but a parched earth incapable of sustaining life.” (Ibid) Source: Antonio A. Oposa Jr.

  12. RESPONSIBILITY TO FUTURE GENERATIONS Davide for the Philippine Supreme Court: “[The right to a balanced and healthful ecology] …is no less important than any of the civil and political rights of human beings.” (Ibid) Source: Antonio A. Oposa Jr.

  13. Davide: “Such a right [to a balanced and healthful ecology]…concerns nothing less than the right to self-preservation and self-perpetuation, a right that may even be said to predate all governments and constitutions.”(Ibid) Source: Antonio A. Oposa Jr.

  14. Thus the “Philippine Supreme Court declared that all citizens have a fundamental right to a ‘balanced and healthy ecology’ and a duty to protect the environment for future generations.” Dan Tarlock, “Ecosystems”, The Oxford Handbook of International Environmental Law, edited by Daniel Bodansky, Jutta Brunee and Ellen Hey (2007), page 585. Source: Antonio A. Oposa Jr.

  15. RESPONSIBILITY TO FUTURE GENERATIONS Davide held that, without the forests which were threatened by the Timber License Agreements, “a balanced and healthful ecology would not …be achievable.” Subsequently, all Timber License Agreements were cancelled. (Ibid) Professor Antonio A. Oposa Jr.

  16. RESPONSIBILITY TO FUTURE GENERATIONS Bruntland Commission Report: "Humanity has the ability to ensure that it meets the needs of the present without compromising the ability of future generations to meet their own needs." “ Making the difficult choices involved in achieving sustainable development will depend on the widespread support and involvement of an informed public and nongovernmental organizations, the scientific community, and industry." Capacity Building for Environmental Law: Approaches and Resources, Donna Craig, Nicholas Robinson, and Koh Kheng Leng (ADB: 2nd-2003)" pages 93 and 96.

  17. A. NATION STATES—EXAMPLES FROM BRITAIN • “Britain’s first recorded legislation dates from 1273 when King Edward I, known better for fighting the Scots [Sir William WALLACE and Robert the Bruce] and the Welsh, prohibited the burning of “Sea Coal” in order to protect the health of its subjects. In the 1500s, it is understood that Elizabeth I banned the use of coal while Parliament was sitting with the penalty of death in default.” Paul Stookes, A Practical Approach to Environmental Law (Oxford University Press, 2005), page 13 (Paul Stookes).

  18. A. NATION STATES—EXAMPLES FROM BRITAIN 2. “By the 1840s, Victorian England had to tackle the adverse consequences of the industrial revolution. During this period, the UK government began to legislate more generally for public health including the introduction of the Alkali Act 1863 [to deal with heating common salt with sulfuric acid to produce salt cake (sodium sulfate) and hydrochloric acid for the glass, textile, and soap industries] to try and reduce the heavy build up of acid in the local atmosphere…” Paul Stookes, page 13;http://pubs.acs.org/subscribe/journals/tcaw/11/i01/html/01chemchron.html

  19. A. NATION STATES—EXAMPLES FROM BRITAIN 3. “Sustainable Development was introduced into UK Legislation in the Environmental Act 1995, which, among other things, established the Environment Agency and the Scottish Environment Protection Agency. Section 4(1) of the Act provides that: “It shall be the principal aim of the Agency (subject to and in accordance with the provisions of this Act or any other enactment and taking into account any likely costs) in discharging its functions so to protect or enhance the environment, taken as a whole, as to make the contribution towards attaining the objective of achieving sustainable development.” Paul Stookes, page 14

  20. II. ENVIRONMENTAL INSTITUTIONS A. NATION STATES--EXAMPLE FROM USA 1. Congress and the President a. National Environmental Policy Act (NEPA) of 1969 b. Environmental Protection Agency, est'd 1970 c. Departments of Interior, Commerce, Transportation, Labor, the Council on Environmental Quality, State Dept. d. Multilateral Environmental Agreements such as the UN Framework Convention on Climate Change 2. Federal Courts 3. State and Local Legislation, Institutions, and Courts (cont'd) (S. Ferry, Environmental Law (2nd Ed. 2001) [EL])

  21. II. ENVIRONMENTAL INSTITUTIONS A. NATION STATES--EXAMPLE FROM USA(cont'd) 4. Nongovernmental Organizations--such as the Sierra Club and the Natural Resources Defense Council (both of which have international aspects) 5. Scientific Organizations and Educational Institutions such as the Massachusetts Institute of Technology 6. Industry 7. The Media including newspapers and television 8. Civil Society

  22. II. ENVIRONMENTAL INSTITUTIONS 1. Congress and the President (cont'd) The Environmental Protection Agency (NEPA) administers nine major environmental statutes including legislation dealing with Clean Air; Clean Water; Marine Protection, Research and Sanctuaries; Solid Waste, Insecticides, Fungicides and Rodenticides; Toxic Substances; Noise Control; Safe Drinking Water Departments of Interior, Commerce, Transportation, Labor,and the Council on Environmental Quality are responsible for much more environmental legislation dealing with such topics as Coastal Zone Management, Deepwater, Endangered Species, Federal Land, Fishery Conservation, Forests,Wildlife, Occupational Safety and Health, Rivers (EL)

  23. II. ENVIRONMENTAL INSTITUTIONS 1. Congress and the President (cont'd) c. Department of State and U.S. Agency for International Development (USAID) 1) Department of State negotiates treaties, monitors international organizations 2) USAID provides grants to foreign governments, schools, NGOs others

  24. II. ENVIRONMENTAL INSTITUTIONS A. NATION STATES—AN EXAMPLE FROM USA 2. Federal Courts a. Common Law Environmental Remedies including nuisance, trespass, negligence, strict liability, public trust doctrine b. Federal Environmental Legislation (NEPA, etc.) c. Administrative Procedure Act, Freedom of Information Act, Federal Tort Claims Act, etc. d. Constitutional Issues such as the Federal Commerce Clause versus State Power and Legislation

  25. A. NATION STATES—AN EXAMPLE FROM USA 3. State Courts--An example a. Common Law: 1). "Nuisance is the most frequently pled common law tort action in environmental litigation. Nuisance law traditionally protected the right of a landowner to use and enjoy property. This is a broad interest that can be violated without direct physical invasion." (EL p. 33). 2). In Village of Wilsonville v. SCA Services (1981), the court granted an injunction and ordered a site clean-up of the "defendant's hazardous chemical landfill" which presented "a substantial danger of groundwater contamination and explosions from chemical reaction." (EL p 26)

  26. A. Nation States—An Example from South Africa “Article 24 of the South African Constitution 1994 states that everyone has the right to: • Have an environment, that is not harmful to his or her health or well-being; • An environment protected for the benefit of present and future generations, through reasonable legislative and other measures that— (i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources, while promoting justifiable economic and social development.” (Paul Stookes, page 28; emphasis added.)

  27. II. ENVIRONMENTAL INSTITUTIONS B. TREATY ORGANIZATIONS 1. United Nations System a. General Assembly and the Security Council b. International Court of Justice c. UN Environmental Programme (UNEP) d. UN Development Programme e. UN Division for Sustainable Development f. Committee on Economic, Social and Cultural Rights g. Other committees and commissions on women, etc. h. World Health Organization i. UN Educational, Scientific and Cultural Organization j. World Trade Organization

  28. II. ENVIRONMENTAL INSTITUTIONS B. TREATY ORGANIZATIONS 1. United Nations System (cont'd) k. World Meteorological Organization, others l. Secretariats of Multilateral Environmental Agreements m. International Financial Institutions 1). The World Bank including its Inspection Panel 2). The International Finance Corporation including its Compliance Advisor Ombudsman

  29. II. ENVIRONMENTAL INSTITUTIONS 2. Non-UN System such as the Asian Development Bank (ADB) and its Accountability Mechanism a. Program loans for poverty eradication such as "Access to Justice Program in Pakistan"; see Rogers, Jalal, Boyd, An Introduction to Sustainable Development [ISD]at page 194; b. Project loans for water, sanitation, health c. Grants for reform of the land administration law of the People's Republic of China d. Monitoring of sustainable development aspects throughout the project cycle

  30. II. ENVIRONMENTAL INSTITUTIONS C. PRIVATE SECTOR 1. NON-GOVERNMENT ORGANIZATIONS a. International NGOs such as IUCN, known as the World Conservation Union, WWF, The Nature Conservancy, World Resources Institute b. Industrial NGOs such as World Business Council for Sustainable Development. 2. Educational Organizations such as the UN University 3.The Media including cable news networks and international newspapers such as the International Herald Tribune and Financial Times

  31. II. ENVIRONMENTAL INSTITUTIONS 4. Private Foundations a. Bill and Melinda Gates Foundation b. David and Lucile Packard Foundation c. MacArthur Foundation d. Pew CharitableTrusts e. Ted Turner/UN Foundation f. Others Source:WBCSD, Finding Capital for Sustainable Livelihoods Business <wbcsd.org>

  32. II. ENVIRONMENTAL INSTITUTIONS D. FOUR EXAMPLES 1. UN Environment Programme (UNEP) a. Established by UN General Assembly in 1975 b. Governing Council has 58 Member States c. The UNEP secretariat consists of 890 staff members, roughly 500 of whom are international staff while the remaining are hired locally. http://en.wikipedia.org/wiki/UNEP d. Expended about $171,000 million for 2008-2009 (www.unep.org/gc/gcss-x/download.asp?ID=979 ) e. Programs include focus on Climate Change, Disasters and Conflicts, Ecosystem Management, Environmental Governance, Harmful Substances, Resource Efficiency, Freshwater, Biodiversity.

  33. D. FOUR EXAMPLES (cont'd) 2. World Conservation Union (IUCN) a. Founded in 1948 as a Swiss corporation. b. Members include 83 state members, 108 Gov. agencies, 766 NGOs, including 81 international NGOs c. Total expenses in 2008 were $135.264 million (http://www.conservation.org/discover/annual_report/Documents/CI%20Financials.pdf) d. Has 1,100 professional staff in 60 offices worldwide; about 10,000 scientists and experts from 160 countries. (http://en.wikipedia.org/wiki/World_Conservation_Union) e. Enjoys observer status at the UN • “The first publicly visible use of the term ‘sustainable development’ was most probably in 1980, when it appeared in …a document prepared by [IUCN].” Daniel Barstow Magraw & Lisa D. Hawke, “Sustainable Development”, The Oxford Handbook of International Environmental Law(2008), page 615.

  34. II. ENVIRONMENTAL INSTITUTIONS D. FOUR EXAMPLES (cont'd) 3. World Business Council for Sustainable Development <http://www.wbcsd> a. First publication in 1992; formally established 1994. b. Coalition of 200 international companies in such sectors as cement, electricity, forest products, mining and minerals; c. Members include Alcoa, Bayer, BP, Caterpillar, Chevron, China Petrochemical Corporation (SINOPEC),Deutsche Bank,Deloitte Touche Tomatsu, Dow Chemical, Dupont, Johnson & Johnson, JSC Gazprom, Michelin, Mitsubishi Corporation,Nokia, Proctor and Gamble, Rio Tinto, Royal Dutch Shell, Sumitomo Chemicals, Sony, Toyota Motors, and Volkswagen

  35. 3. World Business Council for Sustainable Development c. Mission Statement: “Our mission is to provide business leadership as a catalyst for change toward sustainable development, and to support the business license to operate, innovate and grow in a world increasingly shaped by sustainable development issues.” d. Focus Areas: “Energy & Climate, Development, Business Role, Ecosystems” e. Projects: “Water, Energy Efficiency in Buildings, Forest Products, Cement, Electricity Utilities, Tire Industry, Mobility, Mining & Minerals”

  36. D. FOUR EXAMPLES (cont'd) 4. 1992 UN Conference on Environment and Development resulted in part in the United Nations Framework Convention on Climate Change. U.S. Government ratified this Convention on 15/10/92, and the Convention entered into force on 21/03/94. UNFCCC Core programme budget for 2008 was $27 million, supporting 144 staff of which 88 are professional or above. (http://unfccc.int/files/meetings/cop_13/application/pdf/cp_budg_eigh_ni.pdf) UNFCC is committed to • Making a contribution to sustainable development through support for action to mitigate and to adapt to climate change at the global, regional and national level. • Providing high-quality support to the intergovernmental process in the context of the Convention and the Kyoto Protocol.  http://unfccc.int/secretariat/items/1629.php

  37. III. ENVIRONMENTAL LAW Source:<http://www.bbc.co.uk/nature/wildfacts/factfiles/174.shtml>

  38. III. ENVIRONMENTAL LAW A. Introduction 1. Why study environmental law? a. Of what legal force is a "Declaration"? b. What has the International Court of Justice said about the environment and sustainable development? c. What is "customary international law" and can it be enforced? d. What is "soft law"? e. When did "the law" of sustainable development begin?

  39. III. ENVIRONMENTAL LAW A. Introduction PACIFIC FUR SEALS CASE “From the legal point of view, the concept of sustainable development began more than 100 years ago with the Behring Sea Fur Seals Fisheries case, decided in international arbitration.” (ISD p 211) Source:<http://www.bbc.co.uk/nature/wildfacts/factfiles/174.shtml>

  40. PACIFIC FUR SEALS CASE According to Professor Phillippe Sands: "Indeed, the inherent features of the concept [of sustainable development] have been an aspect of international legal relations since at least 1893, when the United States asserted a right to protect Pacific fur seals, for the benefit of mankind, from wanton destruction, in opposition to the assertion by Great Britain that its nationals were entitled to exploit these resources for their own developmental purposes.” (ISD p 211; emphasis added.)

  41. III. ENVIRONMENTAL LAW A. Introduction 2. Law Oxford English Reference Dictionary (1966) defines law as "a rule enacted or customary in a community, and recognized as enjoining or prohibiting certain actions, and enforced by the imposition of penalties." Mark Twain: "Laws are sand, customs are rock. Laws can be evaded and punishment escaped, but an openly transgressed custom brings sure punishment." (ISD p 184.)

  42. III. ENVIRONMENTAL LAW A. Introduction 3. INTERNATIONAL LAW In a well known US State Department publication, international law is defined as a “standard of conduct” pertaining to both “states” and “other entities”: “International law is the standard of conduct, at a given time, for states and other entities subject thereto. It comprises the rights, privileges, powers, and immunities of states and entities invoking its provisions, as well as the correlative fundamental duties, absence of rights, liabilities, and disabilities.” (Whiteman, 1963, Vol.1, p. 1, quoted in ISD p 185)

  43. 4. "ENVIRONMENT" • International treaty law describes • the word “environment.” Professors of law • Alexandre Kiss and Dinah Shelton point out • that the European Convention on Civil Liability • for Damage Resulting from Activities Dangerous • to the Environment describes the “environment” • as including the following: • natural resources both abiotic and biotic, such as air, water, • soil, fauna and flora and the interaction between the same factors; • property which forms part of the cultural heritage; and • the characteristic aspects of the landscape [footnote omitted]. • ( ISD p 185) Source: Antonio A. Oposa Jr.

  44. 4. ENVIRONMENT--a social dimension Furthermore, as Kiss and Shelton note, the International Court of Justice (ICJ) in its opinion on the Legality of the Threat or Use of Nuclear Weapons “includes a social dimension in the definition of the environment", stating that “the environment is not an abstraction, but represents the living space, the quality of life, and the very health of human beings, including generations unborn.” (International Environmental Law p 2)

  45. 5. SOURCES OF INTERNATIONAL LAW(a) international conventions; (b) international custom; (c) general principles of law; (d)judicial decisions and teachings Source: Antonio A. Oposa Jr.

  46. 5. SOURCES OF INTERNATIONAL LAW Article 38(1) of the international agreement establishing the ICJ, which forms the apex of the judicial branch of the UN, describes the following four sources of international law: (a) international conventions, general or particular, establishing rules expressly recognized by the contesting States; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law [Emphasis added]. (ISA p. 186-187)

  47. I. INTRODUCTION 5. SOURCES OF INTERNATIONAL LAW a. .INTERNATIONAL CONVENTIONS OR TREATIES Black’s Law Dictionary (1999) states, “A convention is an agreement or compact among nations….” Thus, an international convention includes agreements which are often called treaties. The Vienna Convention on the Law of Treaties (1969) states in part: For the purposes of the present Convention: (a) ‘treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;…. (ISD p 186)

  48. 5. SOURCES OF INTERNATIONAL LAW (cont'd) a. INTERNATIONAL CONVENTIONS OR TREATIES Since a treaty may exist “whatever its particular designation,” and since such agreements have been negotiated for thousands of years, treaties have been designated with a wide variety of titles, including agreement, compact, protocol, and the like. One of the earliest treaties, written on a clay tablet, was between King Silis of the Hittites and Ramses II of Egypt. [Italics added] That was in 1269 B.C….” (ISD p 186) http://un.org

  49. 5. SOURCES OF INTERNATIONAL LAW b. CUSTOMARY INTERNATIONAL LAW “International law that derives from the practice of states and is accepted by them as legally binding. This is one of the principle sources or building blocks of the international legal system.” Black’s Law Dictionary, Bryan A. Garner, Editor in Chief, eighth edition (1999) p. 835. “[T]he approach … attempts to describe the existing norms that govern the relations among states, but does not advocate or prescribe new norms. …Customary norms depend not only on state practice (that is, on observable regularities of behavior), but also on acceptance of these regularities as law by states….” ISD 187

  50. 5. SOURCES OF INTERNATIONAL LAW c. GENERAL PRINCIPLES Hunter, Salzman, and Zaelke … quote Professor of Law Ian Brownlie, who “states that ‘general principles’ may refer to ‘rules accepted in the domestic law of all civilized states,’ or alternatively, to the general principles of private law used within all or most States,… insofar as those principles are applicable to relations of States. General principles, then, fill in the gaps in international law that have not already been filled by treaty or custom.” [G]eneral principles include principles which have emerged from municipal legal systems….“ (ISD pp 188)

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