Environmental law is neither purely a branch of private law now purely a branch of public law
Introduction
History of Environmental Law
With the growing technical and administrative complexity of environmental issues, the development of a string of legal instruments has become a major trend of these last thirty years. As a consequence, finding the appropriate instrument is a real challenge. Pure water has been an issue in many antique societies and therefore one can admittedly argue that the first legal rules on environmental issues are pretty old – they are clearly originating from Roman law rules and were also applied in the Middle Ages in Europe. While it is possible to identify early legal structures that would today fall into the “environmental” law metric – for example the common law recognition of private and public rights to protect interests in land, such as nuisance, or post-industrial revolution human health protections – the concept of “environmental law” as a separate and distinct body of law is a 20th Century development.[1] The recognition that the natural environment was fragile and in need of special legal protections, the translation of that recognition into legal structures, and the development of those structures into a larger body of “environmental law” did not occur until about the 1960s. At that time, numerous influences – including a growing awareness of the unity and fragility of the biosphere following mankind’s first steps into outer space (see, for example, the Blue Marble), increased public concern over the impact of industrial activity on natural resources and human health (see, for example, the1969 Cuyahoga River fire), the increasing strength of the regulatory state, and more broadly the advent and success of environmentalism as a political movement – coalesced to produce a huge new body of law in a relatively short period of time. While the modern history of environmental law is one of continuing controversy, by the end of the 20th Century, environmental law had been established as a component of the legal landscape in all developed nations of the world, many developing ones, and the larger project of international law.
National Environmental Policy Act (NEPA)
The National Environmental Policy Act of 1969, as amended (Pub. L. 91-190, 42 U.S.C. 4321-4347, January 1, 1970, as amended by Pub. L. 94-52, July 3, 1975, Pub. L. 94-83, August 9, 1975, and Pub. L. 97-258, §4(b), Sept. 13, 1982)[2]. It is an Act to establish a national policy for the environment, to provide for the establishment of a Council on Environmental Quality, and for other purposes. This Act may be cited as the “National Environmental Policy Act of 1969.”
The National Environmental Policy Act (NEPA) is a United States environmental law that established a U.S. national policy promoting the enhancement of the environment and also established the President’s Council on Environmental Quality (CEQ). As one of the most emulated statutes in the world, NEPA has been called the modern-day equivalent of an “environmental Magna Carta”.
NEPA’s most significant effect was to set up procedural requirements for all federal government agencies to prepare environmental assessments (EAs) and environmental impact statements (EISs). EAs and EISs contain statements of the environmental effects of proposed federal agency actions. NEPA’s procedural requirements apply to all federal agencies in the <href=”#Executive_branch” title=”Federal government of the United States”>executive branch. NEPA does not apply to the President, to Congress, or to the federal courts.
Purpose of NEPA
Sec. 2 [42 USC § 4321].
The purposes of this Act are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.
Private law
Private Law is that portion of the law that defines, regulates, enforces, and administers relationships among individuals, associations, and corporations. As used in distinction to public law, the term means that part of the law that is administered between citizen and citizen, or that is concerned with the definition, regulation, and enforcement of rights in cases where both the person in whom the right inheres and the person upon whom the obligation rests are private individuals. Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts[3] (as it is called in the common law), and the law of obligations (as it is called in civil legal systems). It is to be distinguished from public law, which deals with relationships between both natural and artificial persons (i.e., organizations) and the state, including regulatory statutes, penal law and other law that affects the public order.
In general terms, private law involves interactions between private citizens, whereas public law involves interrelations between the state and the general population. Private or civil law deals with those relations between individuals with which the state is not directly concerned: as in 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. The part of the law that deals with such aspects of relationships between individuals that are of no direct concern to the state. It includes the law of property and trust, family law, the law of contract, mercantile law and the law of tort.
Public law
Public law[4] is that area of constitutional, administrative, criminal, and International Law that focuses on the organization of the government, the relations between the state and its citizens, the responsibilities of government officials, and the relations between sister states. It is concerned with political matters, including the powers, rights, capacities, and duties of various levels of government and government officials. Public law refers to an act that applies to the public at large, as opposed to a private law that concerns private individual rights, duties, and liabilities. Public law is the citation given to the original form of federal and some state laws. For example, the citation for the Economic Recovery Tax Act of 1981 is Pub. L. 97–34, Aug. 13, 1981, 95 Stat. 1720 (26 U.S.C.A. § 1 et seq.). It is a general classification of law concerned with the political and sovereign capacity of a state.
Public law is a theory of law governing the relationship between individuals (citizens, companies) and the state. Under this theory, constitutional law[5], administrative law[6] and criminal law are sub-divisions of public law. This theory is at odds with the concept of constitutional law, which requires all laws to be specifically enabled, and thereby sub-divisions, of a constitution. Generally private law is the area of law in a society that affects the relationships between individuals or groups without the intervention of the state or government. In many cases the public/private law distinction is confounded by laws that regulate private relations while having been passed by legislative enactment. In some cases these public statutes are known as laws of public order, as private individuals do not have the right to break them and any attempt to circumvent such laws is void as against public policy. It is a branch of law concerned with regulating the relations of individuals with the government and the organization and conduct of the government itself.
Environmental Law
Environmental law is a body of state and federal statutes intended to protect the environment, wildlife, land, beauty, prevent pollution, over-cutting of forests, save endangered species, conserve water, develop and follow general plans and prevent damaging practices. These laws often give individuals and groups the right to bring legal actions or seek court orders to enforce the protections or demand revisions of private and public activity which may have detrimental effects on the environment.
Environmental law is a collective term describing international treaties (conventions), statutes, regulations, and common law or national legislation (where applicable) that operates to regulate the interaction of humanity and the natural environment, toward the purpose of reducing the impacts of human activity. The topic may be divided into two major subjects: pollution control and remediation, and resource conservation, individual exhaustion. The limitations and expenses that such laws may impose on commerce, and the often unquantifiable (non-monetized) benefit of environmental protection, have generated and continue to generate significant controversy. Given the broad scope of environmental law, no fully definitive list of environmental laws is possible. The following discussion and resources give an indication of the breadth of law that falls within the “environmental” metric[7].
Environmental law as a distinct system arose in the 1960s in the major industrial economies. While many countries worldwide have since accumulated impressive sets of environmental laws, their implementation has often been woeful. In recent years, environmental law has become seen as a critical means of promoting sustainable development (or “sustainability”). Policy concepts such as the precautionary principle, public participation, environmental justice, and the polluter pays principle have informed many environmental law reforms in this respect (see further Richardson and Wood, 2006). There has been considerable experimentation in the search for more effective methods of environmental control beyond traditional “command-and-control” style regulation. Eco-taxes, tradable emission allowances, voluntary standards such as ISO 14000 and negotiated agreements are some of these innovations. The IUCN Academy of Environmental Law[8] is a network of some 60 law schools worldwide that specializes in the research and teaching of environmental law.
Environmental law: The Perspective
With its provisions for general and particular care of the environment, environmental law will continue to stress the absolute need for a regulatory framework within which its existential, social and aesthetic functions can be fulfilled. The five development trends of environmental law that have been identified since the 1980s are now grouped together in three focuses of development:
- Integrated environmental strategies for the internal and external integration of environmental care by means of the further ecological development and harmonization of environmental law,
- Indirect environmental strategies for the indirect guidance of environmental care conduct by means of corresponding economic and other incentives and instruments and
- International environmental strategies to link national, supranational and international environmental law by means of the promotion or adoption of supranational and international developments.
In order to be able to master these development focuses appropriately, environmental law needs a fundamental reform that builds upon the solid basis of the intervening measures of direct conduct guidance and the planning measures that have been somewhat underestimated in recent decades. At a national level the Environmental Code offers an appropriate legislative type of action for this reform of environmental reform and, at the same time, forms the constitution of environmental order. This environmental order is designed not only to realize the State’s constitutional objective of care of the environment. Linked to an economic order which guarantees the autonomy of the individual and competition, and a strongly structured social order, an environment order also helps the social market economy to gear itself to the needs of the environment in such a way that it can do ecological, economic and social justice to the model of sustainable development.
An introduction to the main areas of environmental law
This can be no more than the briefest of introductions:
(1) Air Quality
Human activities across the spectrum produce pollutants that affect the quality of the air around us, ranging from the everyday of driving to complicated industrial processes producing highly toxic fumes. Regulatory measures are put forward as a response to try and regulate the production of air pollutants that are produced. Initially there was a more reactive approach of addressing specific problems as they arose. Recently, with increasing concerns about air quality and climate change there is a more proactive and integrated approach to regulating the emission of pollutants.
(2) Climate Change
The Climate Change Act 2008 – Key aim of the act was to improve carbon management and help the transition towards a low-carbon economy in the UK. Sets legally binding target of at least 80% cut below 1990 levels in greenhouse gas emissions by 2050, and reduction of at least 34% by 2020. Carbon budgeting system which caps emissions over five year periods, starting with three 3-year periods for the initial phases of the scheme. To implement this, established the Carbon Reduction Commitment.
(3)Contaminated Land
Soil quality is affected by many activities, but contamination from activities that used to be on sites may present one of the most significant problems. The 26contaminated land regime generally deals with the clean-up of contamination caused by historical sources. Some pre-existing liability systems interact with regime: Private law mechanisms such as nuisance and negligence can impose liability for certain heads of damage, but development of liability under private law been discouraged and as a result a patchwork system of liability rules spread across a wide range of areas addressing specific problems of contamination and clean-up. Possibility of overlapping controls: often ‘contamination’ synonymous with pollution and relevant pollution control regimes apply e.g. water pollution when contaminating substances migrate into water.
(4) Noise
(5) Waste
(6) Water
(7) Nature Conservation
(8) Nuisance
(9) Sea
Controversy
Environmental law is often the source of controversy. Notably, the early history of national environmental regulation in the United States (at the time the world leader in environmental regulation) was marked by relative political unity. The National Environmental Policy Act (1969), the Clean Air Act (1970), the Clean Water Act (1972), and the Endangered Species Act (1973) all were enacted with broad bipartisan support, and ultimately signed into law by Republican President Richard Nixon. Even then, however, critics raised concerns regarding the need for such laws and the costs involved in implementing them. Richard Nixon himself initially vetoed the Clean Water Act, citing its projected costs, though he was ultimately overridden by Congress. Debates over the necessity, fairness, cost, and need for environmental regulation continue to this day.
Areas regulated by environmental law
Having looked briefly at international law, which generally must be translated into national environmental law before it can take effect, let us now return to the individual areas regulated by environmental law which have emerged in Germany along with supranational and international developments and in line with the trends described above. Until an Environmental Code is promulgated, the areas regulated by environmental law can only be determined on the basis of individual laws. If we recognize the history of the development of individual legislation in environmental law and if we consider the normative works with ecological nuances, which form the backbone of environmental law, as guideline legislation, the relevant legal norms can be divided under the heading General Environmental Care on the one hand and Particular Environmental Care on the other, with provisions geared towards particular installations, particular substances and particular sites.
Aspects of Environmental Law
Environmental law has many aspects:
i. Private law: tort – especially nuisance (public and private), and also property law;
ii. Public law – state regulation:
a. Setting standards: water quality, air quality;
b. requiring authorization of activities – town planning, environmental permitting;
c. Prescribing procedures to be carried out – EIA[9], SEA;
d. Identifying land or species that must be protected – nature conservation, Sites of Special Scientific Interest (“SSSIs”), the Green
Belt, AONBs etc.;
e. Banning activities – fly tipping;
f. Creating civil liability – contaminated land regime (see below); the Environmental Liability Directive 2004/35 implemented by the Environmental Damage (Prevention and Remediation) Regulations[10]
Conclusion
We say “Environmental and Public Law” as so much of what we do is about the way government, local authorities and public bodies make decisions which affect the environment. The quality of life (indeed, the very existence) of animals, plants and humans depends on those in authority to make good, lawful decisions. Basically, environmental law has its own aspects. It is related more to the public law rather than the private law. But it has its own acts in different countries. Its regulations are neither under public law nor under private law.
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