“Environmental law is neither purely a branch of private law nor purely a branch public law” Discuss
According to Environmental Protection Act 1990 (“the EPA 1990”) “The “environment” consists mainly the air, water and land.
The definition of the Environmental law states that it is a body of state and federal statutes created and enacted to conserve the environment, mainly wildlife, plantation, ecosystem, and land, and to control pollution, deforestation, preserve endangered species, conserve water bodies, and creating and promoting outlines to prevent damaging malpractices towards the environment. Individuals or groups are empowered by these laws to bring legal actions or seeking orders from the court to implement the guidelines provided by the laws and to demand revisions of private and public activity which may have detrimental effects on the environment.
Every environmental law has outlined directives of pollutants and natural resource conservation and apportionment. According to a journal of the Career Development Office of the Yale Law School, it touches on energy, agriculture, real estate, and land use, and has expanded to include international environmental governance, international trade, and environmental justice. The practice of Environmental law requires comprehensive knowledge of different dimensions of administrative law and of tort law, and other laws covering property, legislation, constitutional law, use of land.
Under the Common Law, environmental litigation revolves around six doctrines: Nuisance, Trespass, Negligence, Strict Liability, prior appropriation, and riparian rights.
Nuisance occurs when the any individual, inhabiting in an area, hinders the rights of others in that particular surrounding area by using the land in an unreasonable manner.
Nuisance can both be public or private. A public nuisance occurs when an individual interferes with the rights or entitlement of general public in a whole, such as doing something that creates air pollution and affects the inhabitants around. A private nuisance occurs when any act violates the rights of any particular individual, such as creating loud noises and annoys the neighbor.
Both Trespass and Negligence actions focus mainly on recurrent or continuous act of vandalism. When the entitlement of an individual to his/her property is hampered by the deliberate act of anyone, trespass has occurred. Negligence occurs when an individual fails to show a minimum amount of concern or thoroughness that would normally be shown by a “reasonably prudent” person. Negligence can occur without prior intention of anybody, but trespass only occurs when intentional misconduct takes place.
Strict Liability The tenet of strict liability for excessively harmful activities allows another countermeasure for parties who are victim of acts causing environmental harm. Under this principle, the inhabitants must prove that a situation or action meets the criteria for being “abnormally dangerous” and has caused environmental degradation. Some common activities stated as abnormally dangerous are, for example, blocking waterway for hydroelectric plants, using high electricity consuming street lights, or open mining.
Prior Appropriation and Riparian Rights A riparian proprietor is an individual who owns a land which borders a river or water body and is legally permitted to divert the direction of water flow. Prior appropriation is one of the rights of a riparian owner under which law provides the right to anyone who apportions stream water for a useful purpose to continuous diversion of the stream.
The modern environmental law today is mostly concentrated on the concept of harm.Environmental toxic tort actions, whether sounding in strict liability or negligence, require a showing of harm as a result of exposure to a toxic substance.
Environmental law focuses itself mainly on the aversion or remedy of harm. For government to intercede there must be an adverse affect, whether through criminal prohibition, administrative regulation, or creation of a tort action.
Public Law and Private Law
Private law deals with those relations between individuals with which the state is not directly concerned, such as the relations between husband and wife, parent and child, and the various kinds of property, contracts, torts, trusts, legacies, the right recognized by the rules of admiralty, etc. It includes the law of property and trust, family law, the law of contract, mercantile law and the law of tort.
In some countries, private law is also referred as common law. Civil law is the most common type of Private law. Civil law seeks to arbitrate the disputes between various parties, where none of the parties is the government. Common civil law cases involve contract disputes, bankruptcy, violations regarding consumer protection, and other private matters, such as divorces and child custody. Although the judicial branch or the legislative branch might have a contribution in drafting and endorsing the laws involved, the civil law is executed without any intervention from the government.
The different areas or sectors of Public Law oversee the interaction and relationship between the general public or organizations and the government. Administrative law, along with Criminal Law and Constitutional law are the major areas of Public Law. Each of these areas of public law administers particular areas of public interactions and societal relationships and the corrective measures available for breach of those laws.
Out of many differences between Private Law and Public Law, the most prominent difference is that a Public Law preserves the entire society as a whole, but a Private Law supervises interactions between people, group of people and companies. Various government agencies and bureaus or offices determines and enforces Public law, but the government usually restrains itself from enforcing Private Law.
Constitutional law deals with both the laws that are available in a country’s written constitution and an unmentioned constitution which are connected to a country’s tradition and custom. These laws are also mentioned to as the “law of the land” and set the foundation for other laws and regulations. These ‘laws of the land’ are meant to define the rights that the citizens are entitled to in relation to the government and also dictates the interactions of different parts of the government.
Administrative law is considered to be a branch of both public law and private law. Administrative law, in some of its aspects, provides guidelines for the functioning of various government entities within a nation and also regarding international law. Administrative law is also referred to as both public law and private law because it does bestride the boundaries and administers regulations and laws governing civil law.
Criminal law is also a famous branch of both public law and private law. Criminal law, as a branch of public law deals with upholding a peaceful society. Individuals and organizations and every other entity are under the jurisdiction of Criminal law. Laws and regulations are outlined throughout the Criminal law, inscribing various forms of violations of law and set penalties for those violations. Criminal law administers crimes such as embezzlements, violent crimes, and corporate crimes, such as fraudulence.
Environmental Law: in regard of Public and Private Law
Environmental Law has mainly three aspects:
1. Private Law: In this aspect, the act of environmental harm has to affect private entities or individuals, primarily in the form of nuisance, trespassing, and they are subject to property laws.
2. Public Law: State decrees or orders pervade this aspect of environmental law. Government has numerous directives and guidelines that individuals or organizations must adhere to. These orders are brought into action to ensure that no harm is caused to the environment, namely plantation, wildlife, water body and air. Government sets standards and a general framework for activities that might affect the environment. A famous step taken by several governments in different countries is the Polluters Pay Principle, which says that individuals or firms have to pay for the cost of the harmful emissions they create. Private entities must gain proper authorization for certain activities, and some acts are even banned by the State. Several agencies are employed the State are in place to ensure that these directives are followed.
3. Criminal Law: According to Vincent Wagoona, to enforce environmental law, the criminal can be extended with the following objectives:
· Ensuring that established directives are in the best interest of public health and the environment, State integrity and guidance, and fair competition.
· Protecting or restoring environmental damage to ensure sustainable development.
The major dilemma is that when a public nuisance takes place. In such a situation, various government agencies or offices can bring legal actions against the polluter. Government agencies are empowered by the Public laws passed by the State to take steps to sue the polluters. But when a private nuisance takes place, the private entities who are affected by the pollution can only sue the party responsible for pollution. Our matter of concern is when the two aspect overlaps. For example, when the toxic fumes emitted from factories adversely affect the interests of both particular individuals and the general public as a whole or surrounding wildlife. In this case, legal actions can be brought against the polluter from both the perspective of private law and also public law as well, as both government and private entities can take legal actions against the party creating pollution.
General public, as a whole, can play a very important and influential part in the preservation and protection of environment and pursue better environmental policies under the prevailing Environmental law regulations and using the courts. They could (1) sue the polluters to compensate for the pollution for which they are responsible, (2) sue the public and governmental officials concerned with the safety of environment for not bringing charges against the polluters for non-compliance to the environmental acts and, (3) sue polluters with the intention to make them comply with the environmental law and guidelines.
Enforcement is one of the most significant components of the environmental law. The enforcement of the law is related to those legal actions that are taken by the government or individuals to ensure environmental protection and safekeeping and achieving conformity within the accepted framework to remedy or avert actions that threatens the environment or public health. Execution of the guidelines and frameworks are usually done by governments through agencies by inspecting, promoting compliance and bringing legal actions. Not always environmental law can protect the environmental safety as being a part of Public Law, as the act of degrading the environment has not directly been harmful for the general public or been tortuous towards wildlife. Therefore, if any individual does not stand up to the protection of his own rights and environment as well, in that case, the Public Law cannot preserve the environment under the environmental law. In another way, when an act of environmental degradation distorts the environment in whole and the lives of general public as well, it is the duty of public law system to stop the act, and take legal steps whatsoever. But if the State system does not take a stand against the act, then in reality, nothing can be done to protect and preserve the environment under the environmental law regulation. Therefore environmental law is not purely a branch of public law or a branch of private law.
· Albert C. Lin, Beyond Tort: Compensating Victims of Environmental Toxic Injury, 78 S. CAL. L. REV. 1439, 1446 (2005).
· DAN B. DOBBS, THE LAW OF TORTS § 463, at 1321-22 (2000)
· Duhaime, Lloyd, Legal Definition of Public Law
· Gerrard, Michael B., ed. 1999. The Law of Environmental Justice: Theories and Procedures to Address Disproportionate Risks. Chicago: American Bar Association.
· John Stuart Mill, ON LIBERTY 139 (David Bromwich & George Kateb eds., 2003) (1859).
· Maurici, J., AN INTRODUCTION TO ENVIRONMENTAL LAW, Landmark Chambers
· Martin, E., editor, The Oxford Dictionary of Law (Oxford: Oxford University Press, 2006).
· Robert V. Percival et al., ENVIRONMENTAL REGULATION LAW, SCIENCE, AND POLICY 346 (4th ed. 2003).
· Rogers, William H., Jr. 1986. Environmental Law: Air and Water Pollution. St. Paul, Minn.: West.——. 1977. Environmental Law Hornbook. St. Paul, Minn.: West.
· Stern, Carole, John A. McKinney Jr., and David B. Graham, eds. 1996. CERCLA Enforcement: A Practitioner’s Compendium of Essential EPA Guidance and Policy Documents. Chicago: American Bar Association.
· Vincent Wagoona, Principal Senior State Attorney in the Directorate of Public Prosecution, under the Minsitry of Justice and Constitutional Affairs
 (The polluter pays principle (PPP) is a basic economic idea that firms or consumers should pay for the cost of the negative externality they create. The polluter pays principle usually refers to environmental costs, but it could be extended to any external cost.),
 (Vincent Wagoona, Principal Senior State Attorney in the Directorate of Public Prosecution, under the Minsitry of Justice and Constitutional Affairs)