Environmental law – or “environmental and natural resources law” – is a collective term describing the network of treaties, statutes, regulations, and common and customary laws addressing the effects of human activity on the natural environment.
Environmental law is the collection of laws, regulations, agreements and common law that governs how humans interact with their environment. The purpose of environmental law is to protect the environment and create rules for how people can use natural resources. Environmental laws not only aim to protect the environment from harm, but they also determine who can use natural resources and on what terms. Laws may regulate pollution, the use of natural resources, forest protection, mineral harvesting and animal and fish populations.
Humanity has been aware of its environment far longer than there have been laws to protect environments. Environmental law, or sometimes known as environmental and natural resources law, is a term used to explain regulations, statutes, local, national and international legislation, and treaties designed to protect the environment from damage and to explain the legal consequences of such damage towards governments or private entities or individuals
(1). As we will explain in the next section, it covers many areas, all with the same purpose already described here. However, the term “environmental law” does not just cover government legislation. It can also describe a desire by businesses and other organizations, and their regulators to work towards improving ethical principles by setting regulation and industry standards for operating licenses. These are not “laws” per se but act as such within a regulatory framework. It can also apply a method of land management on a kind of understanding of acting responsibly and ethically.
Similarly, impact assessment is not always legally required, but the permission to develop, construct, modify or engineer can often be refused if one is not carried out. These are voluntary regulations rather than law conducted for the good of the environment and the local population. For various reasons, environmental law has always been a flashpoint of controversy. Debates often center on cost, the necessity of such regulations, and the age-old friction between government regulation and encouraging the market to self-regulate and do the right thing for the good of everyone. For example, the ongoing debate over the impact of certain pesticides in agriculture, greenhouse gas emissions are often a battle between the science and industry’s attempts to muddy the science and government lobbying to roll back legislation
(2). The other side of the debate is that current industry regulations and legislation are insufficient. Both sides regularly hold conferences to discuss aspects of environmental law and how they should go about getting them changed in their favor.
Whichever way we look at it, environmental law affects all of us – individual health, business activity, geographical sustainability, and the importance of preserving those for the future generations and economy.
Early environmental laws
Environmental laws are relatively new in American history. Lawmakers began to pass environmental laws in the twentieth century. The environmental movement began to pick up pace in the 1960s with the majority of environmental laws and regulations being created since that time.
The first environmental laws focused on nuisance. When one person’s use of their property interferes with another person’s use of their own property, courts can step in to stop the nuisance. Nuisance laws largely developed through common law decisions in the courts. The laws protect a property owner from having another person or corporation infringe on their right to enjoy their own property. Early environmental laws didn’t focus on protecting the environment as a whole. They also didn’t give standing for a person to sue a polluter if they weren’t personally harmed by the other person’s actions.
What do environmental laws regulate?
Environmental laws cover a wide range of topics including the following:
Air Quality – Air quality laws protect the air from pollution and may include measures to protect the air from things like ozone depletion.
Water Quality – Environmental laws may protect water from pollution. They may also determine who can use water and how to handle potential problems like treating waste water and managing surface run off.
Waste Management – Municipal waste, hazardous substances and nuclear waste all fall in the category of waste management.
Contaminant Cleanup – Not all environmental law focuses on preventing pollution. Contaminant cleanup deals with addressing pollution after it happens. Laws may include protocols for cleanup as well as civil and criminal punishment for polluters.
Chemical Safety – Chemical safety regulations manage things like pesticide use and chemicals in products like plastic bottles.
Hunting and fishing – Environmental laws may regulate and protect wildlife populations. Lawmakers determine who can hunt and fish and how these activities are regulated.
The broad category of “environmental law” may be broken down into a number of more specific regulatory subjects. While there is no single agreed-upon taxonomy, the core environmental law regimes address environmental pollution. A related but distinct set of regulatory regimes, now strongly influenced by environmental legal principles, focus on the management of 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 nonetheless important components of environmental law.
Environmental impact assessment is the formal process used to predict the environmental consequences (positive or negative) of a plan, policy, program, or project prior to the decision to move forward with the proposed action. Formal impact assessments may be governed by rules of administrative procedure regarding public participation and documentation of decisionmaking, and may be subject to judicial review. An impact assessment may propose measures to adjust impacts to acceptable levels or to investigate new technological solutions.
Air quality laws govern the emission of air pollutants into the atmosphere. A specialized subset of air quality laws regulate the quality of air inside buildings. Air quality laws are often designed specifically to protect human health by limiting or eliminating airborne pollutant concentrations. Other initiatives are designed to address broader ecological problems, such as limitations on chemicals that affect the ozone layer, and emissions trading programs to address acid rain or climate change. Regulatory efforts include identifying and categorizing air pollutants, setting limits on acceptable emissions levels, and dictating necessary or appropriate mitigation technologies.
Water quality laws govern the release of pollutants into water resources, including surface water, ground water, and stored drinking water. Some water quality laws, such as drinking water regulations, may be designed solely with reference to human health. Many others, including restrictions on the alteration of the chemical, physical, radiological, and biological characteristics of water resources, may also reflect efforts to protect aquatic ecosystems more broadly. Regulatory efforts may include identifying and categorizing water pollutants, dictating acceptable pollutant concentrations in water resources, and limiting pollutant discharges from effluent sources. Regulatory areas include sewage treatment and disposal, industrial and agricultural waste water management, and control of surface runoff from construction sites and urban environments.
Waste management laws govern the transport, treatment, storage, and disposal of all manner of waste, including municipal solid waste, hazardous waste, and nuclear waste, among many other types. Waste laws are generally designed to minimize or eliminate the uncontrolled dispersal of waste materials into the environment in a manner that may cause ecological or biological harm, and include laws designed to reduce the generation of waste and promote or mandate waste recycling. Regulatory efforts include identifying and categorizing waste types and mandating transport, treatment, storage, and disposal practices.
Environmental cleanup laws govern the removal of pollution or contaminants from environmental media such as soil, sediment, surface water, or ground water. Unlike pollution control laws, cleanup laws are designed to respond after-the-fact to environmental contamination, and consequently must often define not only the necessary response actions, but also the parties who may be responsible for undertaking (or paying for) such actions. Regulatory requirements may include rules for emergency response, liability allocation, site assessment, remedial investigation, feasibility studies, remedial action, post-remedial monitoring, and site reuse.
Chemical safety laws govern the use of chemicals in human activities, particularly man-made chemicals in modern industrial applications. As contrasted with media-oriented environmental laws (e.g., air or water quality laws), chemical control laws seek to manage the (potential) pollutants themselves. Regulatory efforts include banning specific chemical constituents in consumer products (e.g., Bisphenol A in plastic bottles), and regulating pesticides.
Water resources laws govern the ownership and use of water resources, including surface water and ground water. Regulatory areas may include water conservation, use restrictions, and ownership regimes.
Mineral resource laws cover several basic topics, including the ownership of the mineral resource and who can work them. Mining is also affected by various regulations regarding the health and safety of miners, as well as the environmental impact of mining.
Forestry laws govern activities in designated forest lands, most commonly with respect to forest management and timber harvesting. Ancillary laws may regulate forest land acquisition and prescribed burn practices. Forest management laws generally adopt management policies, such as multiple use and sustained yield, by which public forest resources are to be managed. Governmental agencies are generally responsible for planning and implementing forestry laws on public forest lands, and may be involved in forest inventory, planning, and conservation, and oversight of timber sales. Broader initiatives may seek to slow or reverse deforestation.
Wildlife and plants
Wildlife laws govern the potential impact of human activity on wild animals, whether directly on individuals or populations, or indirectly via habitat degradation. Similar laws may operate to protect plant species. Such laws may be enacted entirely to protect biodiversity, or as a means for protecting species deemed important for other reasons. Regulatory efforts may including the creation of special conservation statuses, prohibitions on killing, harming, or disturbing protected species, efforts to induce and support species recovery, establishment of wildlife refuges to support conservation, and prohibitions on trafficking in species or animal parts to combat poaching.
Fish and game
Fish and game laws regulate the right to pursue and take or kill certain kinds of fish and wild animal (game). Such laws may restrict the days to harvest fish or game, the number of animals caught per person, the species harvested, or the weapons or fishing gear used. Such laws may seek to balance dueling needs for preservation and harvest and to manage both environment and populations of fish and game. Game laws can provide a legal structure to collect license fees and other money which is used to fund conservation efforts as well as to obtain harvest information used in wildlife management practice.
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 a variety of 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 an exhaustive list and are not universally recognized or accepted. Nonetheless, they represent important principles for the understanding of environmental law around the world.
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.
The modern concept of sustainable development was a topic of discussion at the 1972 United Nations Conference on the Human Environment (Stockholm Conference), and the driving force behind the 1983 World Commission on Environment and Development (WCED, or Bruntland Commission). In 1992, the first UN Earth Summit resulted in the Rio Declaration, Principle 3 of which reads: “The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.” Sustainable development has been a core concept of international environmental discussion ever since, including at the World Summit on Sustainable Development (Earth Summit 2002), and the United Nations Conference on Sustainable Development (Earth Summit 2012, or Rio+20).
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.
Defined in the international law context as an obligation to protect one’s own environment, and to prevent damage to neighboring environments, UNEP considers transboundary responsibility at the international level as a potential limitation on the rights of the sovereign state. Laws that act to limit externalities imposed upon human health and the environment may be assessed against this principle.
Public participation and transparency
Identified as essential 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 procedure.
One of the most commonly encountered and controversial principles of environmental law, the Rio Declaration formulated the precautionary principle as follows:
In order 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 full 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.
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 cost for environmental remediation and compliance with pollution control regulations involve this principle.