This chapter considers the ability of individuals to seek redress to resolve environmental disputes and the role played by the courts. First, the chapter considers the reasons why some disputes end up in the courts before focusing on the main institution of judicial redress in the form of judicial review. Focus includes discussion of likelihood of success before the courts and the usefulness of judicial review in environmental cases. Specifically, the chapter focuses on the problem encountered by litigants in respect to the exorbitant costs associated with judicial review and the attempt by the Government to address this. The chapter also briefly considers the provisions for access to justice in private law as well as before the Court of Justice for the EU before considering alternative mechanisms for compliance, including the debates surrounding the need for a special environmental court.
Chapter
Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
Chapter
Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
Three chapters of the book are not contained in the print version but can be found on the Online Resource Centre which accompanies the book, at www.oxfordtextbooks.co.uk/orc/bell9e/. The following short summaries indicate the scope of these chapters.
This chapter looks at the legal protection and management of various features of the UK countryside—that is, its landscape, trees, forests, and hedgerows. This involves applying some controls considered earlier in the book, such as town and country planning law, but it also includes legal designations of areas of landscape value and the use of a range of tools including economic instruments, especially grants and subsidies to landowners....
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This chapter examines legal regimes relating to air quality, considering developments at the international, EU, UK and local levels. International and EU law is particularly important in this regulatory sphere since air pollution is a transboundary issue. There is also increasing public concern about air quality, which is reflected in high profile public interest litigation being brought against the UK government to ensure lawful levels of air quality are being met, or at least properly planned for. There are also implementation and coordination problems that make compliance with air quality law a considerable challenge. Regulating air quality ultimately requires coordinating the actions and efforts of actors in many industries, sectors, and geographical areas. At present, not all of those actors are within the scope of UK air quality law.
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This chapter examines the fast-moving area of law relating to climate change. This includes a considerable body of public international law, from the UN Framework Convention on Climate Change to the legally innovative Paris Agreement 2015. The chapter also considers legal developments at the EU and UK levels, which both contain a rich body of climate law and policy. The EU and the UK are both seen as ‘world leaders’ in climate law and policy. In EU law, this is due to the EU greenhouse gas emissions trading scheme and the EU’s leadership in advocating ambitious greenhouse gas mitigation targets and in implementing these targets flexibly across the EU Member States through a range of regulatory mechanisms. The UK introduced path-breaking climate legislation in the Climate Change Act 2008, which provided an inspiring model of climate governance, legally entrenching long-term planning for both mitigation and adaptation. The chapter concludes with an exploration of climate litigation, a new and growing field of inquiry.
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Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter deals with legal controls to address global climate change, ozone depletion, and air quality, the complexity of which problems means that many different types of approaches are necessary across a wide range of activities. This can be a little daunting at first because many issues overlap. In each of these areas, there are laws at international, European, and national levels that need to be considered. It makes sense, however, to first consider some general issues and also the international response to various forms of air and atmospheric pollution. The range of problems affecting the atmosphere stretches across the full range of human activities, from highly toxic fumes emitted from a complicated industrial process, to such seemingly mundane activities as lighting a fire, driving a car, or using spray-on deodorant. Air pollutants come in many forms, and the main ones will be discussed in the chapter.
Chapter
Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter looks at the laws that aim specifically to protect plants, animals, the natural habitats—and, increasingly, the ecosystems—of which they are a part. This is an important part of environmental law, not least because of the appalling rate of decline in, and loss of, the natural environment, but also due to the obvious public interest in conserving biodiversity. Using the law to conserve nature, however, involves finding solutions to some complex policy issues. Finding space for species and habitats to be conserved often clashes with other legitimate social interests, such as economic development and respect for private property. These tensions—which mean that nature conservation law can be a controversial policy area—are a central theme of the chapter.
Chapter
Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter considers the set of laws introduced to address the patchy nature of pre-existing regimes. Although its focus is relatively narrow—that is, on the regulation of the clean-up of historically contaminated land—it is always important to bear in mind that the basic building blocks of statutory liability for cleaning up pollution can often be found in subject-specific legislation. The focus on the clean-up of contamination caused by historical sources presents a number of significant challenges, such as when should clean-up be required, to what level, and for what purposes. The most significant of all of these issues, however, is the identification of the party, or parties, responsible for paying the consequences of historic pollution.
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Courts play an important role in environmental law. Among other things, they uphold the rule of law and adjudicate on the legal disputes that inevitably arise. This chapter explores the role of courts in environmental law. It outlines why courts are understood to be important in environmental law, what courts are, the different types of courts relevant to UK and EU environmental law, the importance of access to justice, and the actual and potential role of specialist environmental courts. Overall, what is apparent from this chapter is not only that the role of courts is an important one, but that it is also complex.
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This chapter introduces criminal liability for non-compliance with English environmental law. Environmental crime can be defined as behaviour that contravenes statutory provisions for the protection of the ecological and physical environment, where there is some kind of punitive sanction imposed for the contravention, with such provisions sometimes also pursuing the protection of public health. Environmental crime can also include criminal offences created through the common law, such as public nuisance. The purpose of this chapter is to discuss overarching themes, such as key elements of strict liability offences, in criminalizing behaviour that damages the environment, rather than details of specific offences spelt out in particular statutes. The argument here is that environmental crime sits uneasily within the environmental law regulatory landscape, which has been shaped in the UK in recent years by co-operative, ‘better regulation’ agendas that seek to reduce burdens on business.
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Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter looks at the international, European, and national laws relating to environmental assessment, and the explosion of litigation that has occurred over the years. Environmental assessment has emerged as one of the key environmental law mechanisms. Its essence is that information about likely environmental impacts of things such as development projects, and now also plans and programmes, is properly considered before potentially harmful decisions are made. It can be useful to think about environmental assessment in the context of some wider issues of environmental decision-making. Another basic issue addressed here is one that frequently crops up in environmental assessment law; namely, the tension between adhering strictly to procedural rules and adopting a pragmatic approach to decisions that are considered sensible.
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Environmental impact assessment (EIA) and other related forms of assessment require decision-makers to take into account the environmental implications of an activity before making a decision about those acitvities. EIA is a feature of most environmental law systems of the world. This chapter is an overview of the Environmental impact assessment (EIA) and strategic environmental assessment (SEA) legal regimes in the EU and how they have been implemented into English law. It provides an overview of the distinctive legal nature of both EIA and SEA, the main legal features of each directive, and how they have been implemented into national law. A significant feature of this chapter is that it provides an overview of the case law of the CJEU and UK courts concerninig these regimes.
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Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter is concerned with environmental crime and the enforcement of environmental law. It starts with some consideration of the difficult definition of ‘environmental crime’, including the distinction between moral and legal meanings of the term. Some of the basic framework of environmental crime, which helps to explain several of the approaches to the enforcement of environmental regulation, is then considered. For example, the fact that many environmental crimes are strict liability offences explains why the rate of successful prosecutions is high, but may also provide an explanation as to why some consider the sanctions that are imposed by the courts to be too low. A large part of the chapter is dedicated to a discussion of the enforcement practices adopted by regulatory agencies in England and Wales, including discussion of the use of civil sanctions instead of prosecutions and the recently enacted sentencing guidelines for environmental offences.
Book
Elizabeth Fisher, Bettina Lange, and Eloise Scotford
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. Environmental Law: Text, Cases & Materials provides students with a deep understanding of environmental law while also encouraging critical reflection of legal reasoning and pointing out areas of controversy and debate. The authors present a wide range of extracts from UK, EU, and international cases, legislation, and articles to help support learning and demonstrate both how the law works in practice and how it should or could work, clearly guiding students through key areas while providing insightful explanations and analysis. Topics have been carefully selected to support a wide range of environmental law courses, within law school and beyond. These include pollution control, nature conservation, climate change regulation, town planning, and water regulation, all incorporating aspects of law from local, UK, EU and international legal cultures. With its unique combination of extracts and author discussion, this new edition provides a wide-ranging, stimulating, and fresh approach to environmental law, which can be relied upon throughout your course and career. This book is also accompanied by an Online Resource Centre that features updates to the law, further reading suggestions, and useful weblinks.
Book
Stuart Bell, Donald McGillivray, Ole Pedersen, Emma Lees, and Elen Stokes
Trusted by generations of students and academics alike, Environmental Law continues to provide, in its ninth edition, broad and comprehensive coverage of the key topics taught on most environmental law courses, explaining the subject in its social and political context, and considering both UK, EU, and international perspectives. Known for its clear structure and systematic approach, the book considers topics by theme and by sector, allowing more experienced readers to explore the intricacies of the subject while also providing a logical introduction for those new to environmental law or without a legal background. A clear and easy-to-understand writing style helps ensure readers are informed yet not overwhelmed, while useful diagrams and tables help to explain complex points. The new edition also features case studies, information boxes, and self-test questions to help draw out key points and consolidate your learning in preparation for assessments and further research. New to this edition are: discussions of the potential impact of Brexit on UK environmental law; an additional chapter discussing the regulation of new technologies, such as ‘fracking’; coverage of important cases such as Coventry v. Lawrence on nuisance, Walton, Champion, and the HS2 decision on environmental assessment, the ClientEarth air pollution litigation and the ICJ’s decision in Costa Rica v. Nicaragua; analysis of the Paris Agreement and other recent climate change developments; analysis of the new EIA Directive; discussion on the new sentencing guidelines; and enhanced coverage of the latest developments in respect to costs of litigation and the role of courts, the Aarhus Convention, and environmental rights.
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This chapter is an overview of the legal cultures within the UK as they relate to environmental law. The focus here is on England, but the scope of analysis is across the UK and includes discussion of the devolved regions. The purpose of the chapter is to give the reader not only a general overview of the main features of these cultures but also to highlight much of its complexity. In particular, the uniqueness of much of UK environmental law means that one must be wary of transplanting ideas and assumptions about environmental law from other jurisdictions. The chapter thus begins with a basic discussion of legal culture.
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Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter deals with the latest in a long series of attempts to streamline or integrate various industrial pollution control systems—a regime that began by bringing together integrated pollution prevention and control and waste management licensing but which now extends to water and groundwater discharge permits and controls on radioactive substances. The environmental permitting regime provides a broad, largely procedural, framework within which the substantive provisions of various European Directives are implemented across a range of industrial installations and waste management facilities. As such, it introduces few general changes of substance, merely reflecting, as many integrative measures have done, structural and administrative changes, and a reordering of what was already there.
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Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter focuses on the complexity of environmental problems, which is one of its defining characteristics in the sense that there are often many interconnected, variable elements to the problem. It considers the interaction between values and environmental law, which involves some reflection on differing attitudes to the environment. The chapter examines some of the ways in which these values are translated into environmental principles, such as the goal of sustainable development or the Precautionary Principle; it then goes on to consider the question of whether these principles have legal status in the sense that they create legally enforceable rights and duties. Finally, it considers broader questions of environmental justice and the role of different types of rights in environmental protection.
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Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter provides a brief overview of how the EU shapes UK environmental law and policy. It begins by providing an introductory guide to EU law, outlining the key institutions of the EU, the different sources of EU law, and how EU law is made. The chapter then proceeds to look at the more substantive elements of EU law as they affect environmental protection, starting with the policy and constitutional bases for EU environmental law, and gives a flavour of the scope of EU environmental legislation, before considering the scope for national standards to exceed those set at EU level or to disrupt trade between the Member States. This is followed by a discussion of the challenges faced in making EU environmental law work, and then with some thoughts on the impact of Brexit and how this may shape UK environmental law.
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Much of the substance of UK environmental law has been derived from EU environmental law. This chapter is an introduction to some of the major themes in EU environmental law. The first section outlines aspects of EU legal culture and considers different approaches to defining EU environmental law. The following sections examine four major themes of EU environmental law. The first theme is competence, which concerns the nature of the EU’s authority to act in relation to environmental matters. The second theme is implementation and enforcement. The third theme is the ability of Member States to take unilateral environmental protection action. Finally, the last theme is the legitimacy and accountability of EU governance.
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Stuart Bell, Donald McGillivray, Ole W. Pedersen, Emma Lees, and Elen Stokes
This chapter focuses on national law, while also introducing international and European sources. Environmental law emerges at international, European, and national levels partly because the complex, interconnected nature of environmental problems requires a range of solutions at all of these levels. Some of the key characteristics of environmental laws that help to explain both the form and function of UK environmental law are examined here. The chapter also considers the institutions that are involved in the administration of environmental law and policy. The administration of environmental law and policy is carried out by a diversity of bodies, including government departments, regulatory agencies such as the Environment Agency, and a range of quasi-governmental bodies. The focus here is almost exclusively on UK structures and institutions. An underlying theme of the chapter is the way in which administrative structures are used to encourage the integration of environmental law and policy both internally—for example, through the creation of the Environment Agency as a unified regulatory agency—and externally; for example, through various methods of scrutinizing environmental policy across government departments.
