This article deals with the housing framework of laws, that is, constitutions. It distinguishes between constitution referring to the de jure, formal, written book of laws and codes that assume supreme authority within any structure, and constitution which defines a body of informal, conditional rules and laws that do not have supreme authority but are abided by, owing to various objective, subjective factors. Constitution reflects the gap between aspiration and actuality, and constitution attracts a higher degree of compliance and implementation. (...) Studies have indeed found a negative relationship between formal rights protection and actual rights observance. The article reveals that rights guarantees are more prone to failure than success as they depend substantially on environmental and institutional conditions. This article emphasizes a symbiosis between judicialization and constitutionalization while a policy question needs to be judicial in nature if the judiciary has to decide on it. (shrink)

A number of writers have drawn on Hayek’s epistemic defence of market institutions to argue that free-markets and tort law are best placed to overcome the knowledge problems associated with the environmental sphere. This paper argues to the contrary, that this Austrian School approach itself suffers from significant knowledge problems. The first of these relates to the ability of Austrian economics to assign victim compensation and the second to the difficulty of establishing causation in complex environmental problems. The paper will (...) also show how alternative approaches may not suffer from these epistemic challenges and are better placed to overcome them. (shrink)

Quantitative health risk assessment is a procedure for estimating the likelihood that exposure to environmental contaminants will produce certain adverse health effects, most commonly cancer. One instance of its use has been a California air toxics public “right-to-know” law. This article examines the ways in which credible health risk measurements were produced and challenged during the implementation of the California public policy. Fieldwork and documentary analysis finds that stakeholders negotiated within the formal constraints of the risk assessment procedures but still (...) expressed their competing visions for the implementation of the risk communication policy. The abstract results of the method were contextualized according to different time frames and allocations of uncertainty. Furthermore, the article demonstrates that the political process privileged consistency of measurement over accuracy, revealing political negotiations at a fundamentally technical level. The struggle and variation in interpretations can be explained best by the demand to organize the program around the discordant values of democratic accountability and technical efficiency. (shrink)

Environmental Law, Ethics and Governance draws attention to the necessity for inter-disciplinarity in research focused on achieving good environmental governance, be it of a physical area, an environmental problem or a natural resource. Law and ethics each have an important role to play in this regard and the chapters in this volume consider these issues from a number of different perspectives. Included in this book is the academic research and professional experiences of a diversity of authors, including those engaged in (...) research into substantive governance issues, which arise at all levels from the global to the local. The case studies explored in this book provide excellent examples from across this range. In addition, contributions are included from those involved in process and procedural matters, including the complex issues of how new law ought to be drafted, the implementation of that law and environmental legal education. This volume is both thought provoking and instructive and aims to inspire further research regarding the ethical dimensions of environmental law and legal governance. It is clear that these topics remain of great significance if law and policy is to be effective and therefore this volume is a valuable and timely contribution to the discourse in this area. (shrink)

This anthology discusses important issues surrounding environmental law and economics and provides an in-depth analysis of its use in legislation, regulation and legal adjudication from a neoclassical and behavioural law and economics perspective. Environmental issues raise a vast range of legal questions: to what extent is it justifiable to rely on markets and continued technological innovation, especially as it relates to present exploitation of scarce resources? Or is it necessary for the state to intervene? Regulatory instruments are available to create (...) and maintain a more sustainable society: command and control regulations, restraints, Pigovian taxes, emission certificates, nudging policies, et cetera If regulation in a certain legal field is necessary, which policies and methods will most effectively spur sustainable consumption and production in order to protect the environment while mitigating any potential negative impact on economic development? Since the related problems are often caused by scarcity of resources, economic analysis of law can offer remarkable insights for their resolution. Part I underlines the foundations of environmental law and economics. Part II analyses the effectiveness of economic instruments and regulations in environmental law. Part III is dedicated to the problems of climate change. Finally, Part IV focuses on tort and criminal law. The twenty-one chapters in this volume deliver insights into the multifaceted debate surrounding the use of economic instruments in environmental regulation in Europe. (shrink)

The Grotian Moment concept provides a lens through which to reflect on the enduring hold of state sovereignty on international environmental law. The article traces the development of the field’s customary rule framework and canvasses efforts to push its conceptual boundaries beyond the inter-state paradigm. Given their dominant role in the field, the article then provides a brief overview of treaty-based approaches to the development of international environmental law. It focuses on the global response to the climate emergency, as illustrative (...) of how international environmental law has evolved in response to the challenges posed by complex crises. The article concludes by suggesting that international environmental law is unlikely to see a Grotian Moment at the level of customary international law, but that it does hold potential for the new thinking and new approaches that could produce a ‘quasi’ Grotian Moment. (shrink)

Zoning laws determine what types of land uses and densities can occur on each property lot in a municipality, and therefore also govern the range of potential environmental and health impacts resulting from the land use. Zoning regulations are the most ubiquitous of the land use laws in the United States, as well as in many other countries. As such, they have far-reaching effects on the location of noxious uses, and any concomitant environmental or human health impacts.Zoning has enormous implications, (...) in general, for shaping our environment, and because changes to zoning are made through a political process, it has possibilities for abuse. One zoning expert stated:I suppose what really disturbs me is that because zoning is the most universal of the legal tools for shaping the character of the municipality, any unwise use of the process has a far greater impact upon our national character than does the abuse of a less widely employed device. (shrink)

Zoning laws determine what types of land uses and densities can occur on each property lot in a municipality, and therefore also govern the range of potential environmental and health impacts resulting from the land use. Zoning regulations are the most ubiquitous of the land use laws in the United States, as well as in many other countries. As such, they have far-reaching effects on the location of noxious uses, and any concomitant environmental or human health impacts.Zoning has enormous implications, (...) in general, for shaping our environment, and because changes to zoning are made through a political process, it has possibilities for abuse. One zoning expert stated:I suppose what really disturbs me is that because zoning is the most universal of the legal tools for shaping the character of the municipality, any unwise use of the process has a far greater impact upon our national character than does the abuse of a less widely employed device. (shrink)

The European Union (EU) has developed a vast body of environmental law, relying on a treaty title setting out normatively and descriptively complex environmental principles and approaches, as well as on those parts of the treaties focusing on the internal market. This chapter provides some introductory insights into EU environmental law. It explores that the Industrial Emissions Directive (IED) shows the potential of an approach to governance that sets environmental norms in a collaborative, problem‐solving forum beyond the face of legislation. (...) The chapter shows harmonization is not a straightforward category in EU environmental law. Much was made of the decentralization and local or national flexibility in the predecessor to the IED. By comparison, the IED places greater emphasis on the mandatory application of EU‐wide environmental standards. However, both the initial decentralization and the recentralization are highly ambiguous. (shrink)

This article aims to provide a semiotic analysis of environmental law and youth protests. More precisely, drawing on speech act theory this article regards both as types of communication and teases out the inherent voice and message, specifically with regard to the interests of future generations. The argument unfolds in three steps. First, the article looks into speaker and speech of environmental law and argues that it speaks, as legislation does, in the first-person plural voice of a ‘we’. Second, the (...) article examines a speech of Greta Thunberg through the lens of Stanley Cavell’s theory of passionate utterances. This interpretation will unlock the political stakes of Thunberg’s speech as she claims standing with those responsible for enacting environmental law. Finally, the consequences of this reading will be analysed by relating message and voice of environmental law. As youth protests question ordinary forms of political representation, new ways of safeguarding the interests of future generations are called upon. (shrink)

Most people dread being the subject of interest for doctors, scientists, regulators, and lawyers. While we may joke about the arrogance of the medical profession and the aggressiveness of the legal field, both lie at the core of environmental public health. They are inseparable, sometimes complementary and other times in tension. The role of medicine and science in EPH is clear, but their relationship with law is often opaque. Yet in no other area of public health, from infectious and chronic (...) disease prevention to providing health care in underserved communities, is law so central as an instrument and partner. In this article we explore the relationship of law and science in the broader context of EPH, beginning with an overview of potential goals and challenges. We then offer three organizing principles that inform and guide the integration of law, science and policy in EPH. (shrink)

Most people dread being the subject of interest for doctors, scientists, regulators, and lawyers. While we may joke about the arrogance of the medical profession and the aggressiveness of the legal field, both lie at the core of environmental public health. They are inseparable, sometimes complementary and other times in tension. The role of medicine and science in EPH is clear, but their relationship with law is often opaque. Yet in no other area of public health, from infectious and chronic (...) disease prevention to providing health care in underserved communities, is law so central as an instrument and partner. In this article we explore the relationship of law and science in the broader context of EPH, beginning with an overview of potential goals and challenges. We then offer three organizing principles that inform and guide the integration of law, science and policy in EPH. (shrink)

In this article we argue that sustainable development is not a socio-ecologically friendly principle. The principle, which is deeply embedded in environmental law, policymaking and governance, drives environmentally destructive neoliberal economic growth that exploits and degrades the vulnerable living order. Despite seemingly well-meaning intentions behind the emergence of sustainable development, it almost invariably facilitates exploitative economic development activities that exacerbate systemic inequalities and injustices without noticeably protecting all life forms in the Anthropocene. We conclude the article by examining an attempt (...) to construct alternatives to sustainable development through the indigenous onto-epistemology of buen vivir. While no panacea, buen vivir is a worldview that offers the potential to critically rethink how environmental law could re-orientate away from its ‘centered’, gendered and anthropocentric, neoliberal sustainable development ontology, to a radically different ontology that embraces ecologically sustainable ways of seeing, being, knowing and caring. (shrink)

It is increasingly clear that law and its enforcement in Victorian Britain were quite effective in tackling formative industrial problems concerning pollution and broader threats to nature. What is unclear is the political philosophy, if any, underlying this historic achievement. A prevalent view is that early ‘environmental’ law lacked any philosophical underpinning. The article revisits this issue with reference to Dicey’s analysis of 19th century ‘law-making public opinion’. Dicey identified three broad streams of seminal opinion that, he argued, shaped laws (...) as the century unfolded. The early part of the century was dominated by ‘Old Toryism’, including the romantic conservatism associated with Samuel Taylor Coleridge. This then gave ground to ‘Benthamism’ which in turn ceded dominance to ‘collectivism’. Whilst Dicey ignored laws relating to the environment, I argue that this is not because these presented a particular difficulty for his thesis. Indeed, all three seams of ‘law-making opinion’ converged around the legal protection of nature to offer a rich and diverse philosophical foundation for environmental law. (shrink)

There is copious scientific and technical literature analysing the issues of the environmental threat to orbital space. There is also now increasing legal awareness of the problems facing the space environment. These inquiries almost always focus on solutions based on processes, technology or providing sufficient alarm to jolt the international community into action. This discussion will adopt a different focus, providing an overview of the value system that is currently in place regarding human space activity and examining how this value (...) system has shaped normative ethical positions on space exploration. The inquiry will consider whether the values of space exploration have been sufficiently concerned with the environmental impact of such activity and whether it is possible to generate the consensus needed to embed an ethical approach to space exploration. It is contended that only through embedding a concern for the environment at the core of human space activity will there be an enduring solution to the crisis posed by debris in Earth orbit. By promoting conservative consumption of outer space resources, such an embedded concern would become a natural process in space activity rather than a chastisement or limit progress. More crucially, such an overarching ethical position would ensure that the problems which have affected Earth orbit will not be exported when human space exploration leads to settlement on other celestial bodies. The inquiry will start by examining the evolving nature of space activity, looking at the predominantly military backdrop to the early years of exploration. During these early years, the challenge of simply getting into space overrode any environmental consideration. More significantly, there was not the diversity of entities looking to go into orbit meaning that the amount of debris was limited, thereby softening concern. Space activity during this time was largely limited to two superpowers, Russia and America. Inevitably, this geopolitical situation shaped the law that was to govern space activity, and this is the law which has shaped normative behaviour in space. Indeed, had space remained the purview of States, environmental damage may have been significantly reduced, making it easier to regulate. This development is crucial to understanding the way in which shared human values have evolved, but is only part of the picture. Following this, the different generations of space travellers will be studied allowing for an evaluation of how their competing interests and backgrounds have shaped the value systems underpinning the exploration of space. The discussion will then go on to review the emerging body of literature discussing ethical approaches to space and establish the extent to which ethical values have shifted to match the diversity of actors in the space environment. There will then be a critique of how the change in the global space environment has necessitated a change in environmental governance, and whether this has actually occurred. Finally, the discussion will conclude with suggestions as to the way in which legal devices can be used to shape behaviours and begin the process of embedding a much-needed environmental ethic into space activity. (shrink)

This book challenges the accepted view by arguing that environmental law must be seen not as a mere instrument of social policy, but as a historical product of ...

Ulrich Beck characterized the transition from modern to late modern society as a shift from an industrial to a “risk society.” Contemporary society is challenged by negative side effects of modernization, including the increasing and imminent threat of global climate change. This article will test the validity of conceivable prescriptive elements associated with this sociological theory. In doing so, it will focus on the most recent legal developments aimed at tackling climate change within the EU. This paper finds that the (...) precautionary approach is unable to sufficiently shape balanced legal intervention in this day and age. However, the approach adopted by the EU appears to be more successful in this respect. (shrink)

This paper offers an analysis of the ethical values that have accompanied human exploration of space so far, and emphasizes the need to infuse human space activity with new ethical values by means of new and well-constructed legislation. One of the values that we deem particularly important in the creation of a new approach towards space exploration is care for the natural environment, including the space environment.

Springer focuses on the nature and challenges of "leadership" in contemporary environmental diplomacy since the 1992 Earth Summit in Rio de Janeiro, Brazil.

Global health law for pandemics currently lacks legal obligations to ensure distributional and reparative justice. In contrast, international environmental law contains several novel international legal mechanisms aimed at addressing the effects of colonialism and global injustices that arise from the disproportionate contributions to — and impacts of — climate change and biodiversity loss.

In _The Moral Austerity of Environmental Decision Making_ a group of prominent environmental ethicists, policy analysts, political theorists, and legal experts challenges the dominating influence of market principles and assumptions on the formulation of environmental policy. Emphasizing the concept of sustainability and the centrality of moral deliberation to democracy, they examine the possibilities for a wider variety of moral principles to play an active role in defining “good” environmental decisions. If environmental policy is to be responsible to humanity and to (...) nature in the twenty-first century, they argue, it is imperative that the discourse acknowledge and integrate additional normative assumptions and principles other than those endorsed by the market paradigm. The contributors search for these assumptions and principles in short arguments and debates over the role of science, social justice, instrumental value, and intrinsic value in contemporary environmental policy. In their discussion of moral alternatives to enrich environmental decision making and in their search for a less austere and more robust role for normative discourse in practical policy making, they analyze a series of original case studies that deal with environmental sustainability and natural resources policy including pollution, land use, environmental law, globalism, and public lands. The unique structure of the book—which features the core contributors responding in a discourse format to the central chapters’ essays and debates—helps to highlight the role personal and public values play in democratic decision making generally and in the field of environmental politics specifically. _Contributors._ Joe Bowersox, David Brower, Susan Buck, Celia Campbell-Mohn, John Martin Gillroy, Joel Kassiola, Jan Laitos, William Lowry, Bryan Norton, Robert Paehlke, Barry G. Rabe, Mark Sagoff, Anna K. Schwab, Bob Pepperman Taylor, Jonathan Wiener. (shrink)

This article is a review and reflection of the new elements of rights and laws, applied to the principle of justice and sovereignty, but above all in the demonstration that law as a science once again allows us to conceive that as a science it evolves and must be modified according to the new conducts that the State and society require, such is the case of the constitutional recognition that this type of rights have. In the last decades, human beings (...) have evidenced that the way in which they interact with nature is causing serious consequences to the ecosystems that compose it. In the past, these consequences were not yet evident and, therefore, the environmental awareness that exists today did not exist. Therefore, it is necessary to analyze and reflect on certain conditions of this right in Ecuador. (shrink)

Comparative environmental philosophy is a relatively new discipline that came into existence in 1984 at the Institute for Comparative Philosophy at the University of Hawai’i.1 The first book on the subject, Roger T. Ames and J. Baird Callicott’s Nature in Asian Traditions of Thought, grew out of this meeting, and since its release there have been only two other books to deal with the environmental thought of India, China, and Japan: Callicott’s monograph Earth’s Insights and his more recent anthology Environmental (...) Philosophy in Asian Traditions of Thought.2 The only book to deal specifically with Indian environmental ethics is an anthology by George Alfred James, Ethical Perspectives on Environmental Issues in.. (shrink)

Though nearly 400 pages, Benjamin Richardson’s The Art of Environmental Law, Governing with Aesthetics, will not tell you everything you always wanted to know about aesthetics and environmental law but were afraid to ask. What it will give you is a fascinating overview that is remarkably readable despite its considerable length.Richardson’s opening chapter explains that his objective is to show “how insights from aesthetics can enrich the study and understanding of environmental law.” (p. 5) Strictly speaking, what he draws upon (...) are insights about aesthetics rather than from aesthetic theories, philosophical or otherwise. Richardson does occasionally draw upon philosophical texts, most frequently those of Allen Carlson and Glenn Parsons, Arnold Berleant, Yuriko Saito, and Emily Brady. But this is a work of applied aesthetics, aimed at an interdisciplinary audience. Indeed its greatest strength is its interdisciplinarity. Richardson draws on studies of environmental law and landscape management, biodiversity conservation, museum practices, advertising, ecotourism, environmental restoration, land art, and environmental activism, as well as philosophical environmental aesthetics. The result is a valuable resource for anyone interested in the many different avenues through which aesthetic values, broadly construed, can enter into the development and application of environmental law. (shrink)

Conservation Biologists have found that demographic stochasticity causes the mean time to extinction to increase exponentially with population size. This has proved helpful in analyses determining extinction times and characterizing the pathway to extinction. The aim of this investigation is to explore the possible interactions between environmental/demographic noises and the scaling effect of the mean population size with its variance, which is expected to follow Taylor’s power law relationship. We showed that the combined effects of environmental/demographic noises and the scaling (...) of population size variability interact with the population dynamics and affect the mean time to extinction. (shrink)

Images of nature abound in the practice of international environmental law but their significance in law is unclear. Drawing on visual jurisprudence, and interpretative methods for visual art, this book analyses photographs for their representations of nature's aesthetic value in treaty processes that concern world heritage, whales and biodiversity. It argues that visual images should be embraced in the prosaic practice of international law, particularly for treaties that demand judgements of nature's aesthetic value. This environmental value is in practice conflated (...) with natural beauty, ethical and cultural values, and displaced by economic and scientific values. Interpretations of visual images can serve instead to critique and conceive sensory, imaginative and emotional appreciations of nature from different cultural perspectives as proposed by philosophers of environmental aesthetics. Addressing questions of value and the visual, this landmark book shows how images can be engaged by nations to better protect the environment under international law. (shrink)

This volume is issued by one of Max Planck Society’s 83 research institutes, the Max Planck Institute for Comparative Public Law and International Law, a strong reference on i...

Environmental management is at a turning point in its evolution as a discipline. Daunting social, ecological and spiritual problems of global magnitude implore EM to be inspiring and efficacious in theory and practice. Ironically, the present EM movement, in its ontologically dualistic configuration—measuring and manipulating the environment as an abstract, objectified economic resource for human gain—is unknowingly contributing to the very ecological degradation it wishes to ameliorate. In order for EM to become a truly ‘transformative epistemology’,1 its praxis must ontologically (...) transcend the narrow foundations of staunch empiricism, logical positivism and rationalism that now firmly gird it. As a possible alternative to EM’s ‘monological flatland’,2 we introduce a holistic praxiological system grounded in the ancient Indian vedanta wisdom tradition. Natural law-based environmental management portends a radical metamorphosis of EM into a discipline that makes a meaningful impact on today’s precarious global condition. (shrink)

In his recent book Natural Law and Practical Rationality , Mark Murphy develops a sophisticated version of a natural law account of practical rationality. I shall show that with only a few minor changes, Murphy's account can be developed into an environmental ethic that generates human obligations to non-human animals, plants, and perhaps even ecosystems and machines. (I shall not discuss here the plausibility of this extension of Murphy's account, relative to competing accounts in environmental ethics; that discussion will have (...) to wait for another occasion.) I begin with a brief sketch of Murphy's account, and then proceed to show how it can be developed into an environmental ethic, with particular attention to several crucial places in the overall argument of his book and arguments developed in other published works. (shrink)

This article explores some important recent instances of increased participation in environmental law, focusing on those developments which seek close citizen involvement in decision‐making. It is argued that these developments are best explained in terms of a new understanding of the public's potential contribution to environmental decisions. In particular, there are signs that participation is regarded as likely to lead to better decision‐making. Borrowing from theories of deliberative democracy, the article explores the idea that citizen deliberation may contribute to enhanced (...) problem‐solving, especially on questions of environmental risk. Since deliberative theory has generally been concerned with legitimacy rather than problem‐solving, the article further explores the implications of emphasizing problem‐solving as the basis for participation. (shrink)

This paper examines the impact of China’s new environmental protection law on green innovation. Using a large sample of Chinese prefecture-level cities for the 2010–2016 period and the difference-in-differences methodology, we provide strong evidence that the new environmental protection law promotes green innovation. This finding is robust to a battery of sensitivity tests. The micromechanism analysis shows that the new environmental protection law can promote green innovation by imposing stricter financial constraints on enterprises in high-pollution industries and increasing their incentives (...) for green innovation to meet green credit requirements. Further, we find that the impact of the new environmental protection law on green innovation is more prominent in prefecture-level cities with a lower level of banking competition and for prefecture-level cities with stronger intellectual property protection. Overall, these findings suggest that the new environmental protection law has played an important role in promoting green innovation in China. To improve the effect of the new environmental protection law on green innovation, the government can consider lowering banking competition and strengthening intellectual property protection. (shrink)

This article contends that environmental organisations vary in type, scale and purpose in ways that help stewards self-sort into the opportunities that align with their individual motivations and e...