20. New technologies

This chapter introduces some of the issues surrounding law, environmental protection, and new technologies. Using a series of examples—such as geoengineering, nanotechnology, synthetic biology, and hydraulic fracturing (‘fracking’)—it examines the relationship between environmental law and technological innovation. First, the chapter asks how well the law governs potential environmental risks posed by new technological development. Secondly, it looks at whether and how environmental law, in its regulation of new technologies, takes account of different forms of knowledge and expertise. Thirdly, it gives insights into the ways in which law can be used to incentivize the design and application of ‘green’ technologies. Finally, building on Ch. 11, it considers the potential environmental liabilities arising from new and emerging technological risks.

11. Private law and environmental protection

This chapter focuses on the torts—or civil wrongs—traditionally relied on in environmental litigation: private and public nuisance, trespass, negligence, and the rule in Rylands v. Fletcher. It discusses and outlines statutory nuisance and various instances of statutory civil liability, some of which go beyond providing remedies for individuals and provide for wider environmental clean-up. Traditionally, private law has attempted to serve the function of controlling environmental damage. However, the chapter shows that the similarity is often superficial; the essential characteristic of private law is to regulate relationships between individuals by the balancing of individual interests. It concludes by briefly considering the EU Environmental Liability Directive, which has some similarities with private law remedies but is primarily an administrative mechanism for environmental remediation in defined situations.

7. The regulation of environmental protection

This chapter introduces the system of environmental regulation by building upon Ch. 4, which examined the sources of environmental law. In practice, environmental regulation involves more than the use of legal rules that forbid pollution and other forms of environmental harm. ‘Regulation’ is used to describe a wide range of different tools used in both legal and non-legal contexts—for example, it covers mandatory rules contained in environmental legislation, as well as non-binding environmental standards. The chapter outlines some of the reasons for regulating to protect the environment, before explaining how such regulation is introduced, applied, enforced, and reviewed. It examines the characteristics, strengths, and weaknesses of different approaches to standard-setting and the various instruments used to regulate potentially environmentally damaging activities. The chapter discusses several trends in modern environmental regulation, including the policy emphasis on deregulation and the use of information disclosure as a means of governing group or individual behaviour.

6. The European Union and the environment

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.

18. Waste management

This chapter deals with the legal control of waste. Waste management law is a good example of mixed regulation, because a wide range of mechanisms is used to address not only the problems of pollution caused by waste disposal, but also positive mechanisms, such as producer responsibility, which attempt to address the causes of waste production. The chapter concentrates on the regulation of the waste chain, from initial production to final disposal. This includes coverage of the difficult question of the definition of ‘waste’ and a brief explanation of the application of the environmental permitting system that now covers waste management. In general, the chapter looks at national law, although the important contribution of European law and the purposive approach to regulation is also considered.

14. Environmental permitting and integrated pollution prevention and control (IPPC)

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.

10. Access to environmental justice and the role of the courts

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.

Additional chapters on the Online Resource Centre

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....

8. Environmental crime and enforcement

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.

3. Environmental values, principles, and rights

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.