Environmental Law and Private Law

This chapter examines the relationship between environmental law and private law. It first explains what private law is before discussing two aspects of the relationship between environmental law and private law: private law as environmental law and environmental law in private law. The chapter shows how private law can act as environmental law in three distinct ways: it can facilitate agreements protective of the environment, grant rights to prevent or to demand compensation for environmental harm, and refuse to facilitate agreements that harm the environment. Actionable damage, conditions of liability, causation, remedies, particular problems of climate change litigation, and refusal to enforce environmentally damaging agreements are also discussed. The chapter concludes with an analysis of two dimensions of environmental law in private law: environmental crimes as the basis of private law actions and environmental regulatory compliance as a defence in private law actions.

Indonesia

This chapter examines the environmental law of Indonesia. It first provides an overview of the allocation of powers with respect to Indonesia’s environmental law, taking into account the constitutional basis of environmental protection and the Ministry of Environment’s devolution of powers for managing the environment. The chapter then considers the structure and substance of environmental regulations as they apply to pollution control and hazardous waste, air pollution and climate change, and marine and fisheries. It concludes with an analysis of the implementation framework for environmental law, focusing on the creation of the Ministry of Environment and Forestry via the merger of the Ministry of Environment and Ministry of Forestry. Judicial enforcement of environmental law is also explored, with emphasis on the role of certified judges assigned to the general and administrative courts, judicial decisions and enforcement, judicial review in the Constitutional Court, judicial reasoning, and enforcement of Constitutional Court decisions.

India

This chapter examines the state of India’s environmental law. It first provides an overview of the allocation of powers with respect to environmental protection in India, taking into consideration the relevant constitutional provisions, before discussing the structure and substance of environmental law. In particular, it explores sectoral policy frameworks that complement the legislative provisions, along with a number of important laws that deal with environmental issues, including the Water (Prevention and Control of Pollution) Act of 1974, the Wildlife (Protection) Act of 1972, the Forest (Conservation) Act of 1980, the Environment (Protection) Act of 1986, and the Public Liability Insurance Act of 1991. The chapter concludes with an analysis of the implementation framework for Indian environmental law, with emphasis on the role of the Ministry of Environment, Forests, and Climate Change; the Central Pollution Control Board; State Pollution Control Boards (SPCBs); and the judiciary.

Germany

This chapter examines the main characteristics of German environmental law. It first explains how powers are allocated with regards to environmental law in Germany, focusing on environmental protection as a so-called national objective, anchored in the German Federal Constitution, the Basic Law (Grundgesetz); the devolution of legislative and executive competences with respect to German environmental law; and how the law is shaped by international obligations. The discussion then turns to the structure and substance of German environmental law, particularly as it applies to air pollution control, water management and water protection, waste management, nature and species protection, and nuclear energy. The chapter concludes with an analysis of the implementation framework for German environmental law, taking into account how the government resorts to the concept of ‘normative concretization’ to address implementation-related issues arising from complex projects.

Comparative Environmental Law

This volume examines the building blocks of environmental law across different jurisdictions. More specifically, it provides a cartography of environmental law, with a focus on its underlying logic, main arrangements and their variations, and how it is embedded within the broader legal arrangements developed to tackle other questions. In this context, this preliminary chapter provides an overview of the comparative method as it applies to the overall research project leading to the present volume. It discusses descriptive and evolutionary approaches, the conceptual approach, the functionalist approach, the factual approach, legal formants, the contextualist approach, and legal transplants. It then considers a range of methodologies proposed by comparative law experts, including the bottom-up functionalism and top-down functionalism, before explaining the methodology used for the organization of this book. The chapter concludes by summarizing a tentative structure of comparative environmental law as a single overall technology.

A Cartography of Environmental Education

This chapter presents a historical and policy cartography of environmental education. It begins with a brief historical overview of significant environmental education initiatives, focusing on how they became part of a highly political and intergovernmental agenda and how the concept of sustainable development has infiltrated the field of environmental education. It then considers the neoliberal relationship between environmental education and sustainable development before providing a cartography of environmental education policies and an analysis of ‘currents’ (the complex and evolving perspectives and pedagogies) in the field. Two case studies of environmental education are discussed, namely, the Climate Change + Me project in Australia and the story of a teacher named Rose in Bangladesh who inspired environmental consciousness and sustainable practices amongst her students.

Command and Control Standards and Cross-jurisdictional Harmonization

This chapter examines the strengths and weaknesses of ‘command and control’ environmental standards. It argues that a key shortcoming of such standards is a ‘conceptualization gap’: i.e. limited conceptualizations of how the natural environment works, and how it is influenced by human actions. After considering a working definition of command and control standards, the chapter discusses their significance, how they are related to self-regulation and economic incentives, and their implementation deficit. The chapter then explains how applied science models that analyse environmental risks can help to close the ‘conceptualization gap’ that limits the significance and effectiveness of command and control environmental standards. It suggests that closing the conceptualization gap can involve to rely on integrated and harmonized standards, which, in turn, can be achieved by using the abstract, conceptual, and thus potentially trans-jurisdictional ‘language of science’. To this end, the chapter introduces the DPSIR (Drivers, Pressures, States, Impacts, and Responses) applied science model, describing its features and highlighting its limitations in providing an integrated view of environmental risks.

Contaminated Sites

This chapter examines models of regulation for historical pollution of sites. It begins with an overview of the various challenges involved in a comparative study of the rules regarding the clean-up of contaminated sites, in part due to the existence of a huge variety of global approaches to the question of contamination as well as the patchwork and complex response. This chapter addresses these challenges by analysing not only the technical and design-based points of comparison, but also the normative premises upon which such design decisions are based. It considers various elements of regulatory ‘models’ for contaminated sites, emphasizing the importance of having a unified aim which underpins every regulatory regime. It also outlines three parameters that need to be assessed to get a sense of the different models for legal responses to polluted sites: the definition of harm/pollution/contamination, liability, and models and goal of remediation.

Land Degradation

This chapter examines the international legal regime on land degradation. It first provides a brief overview of land degradation as a complex environmental issue around the world before discussing the causes and effects of land degradation. It then analyses a variety of legal responses to land degradation, from global initiatives such as the Convention to Combat Desertification, the Convention on Biological Diversity, the United Nations Framework Convention on Climate Change, and the IUCN Covenant on Environment and Development; regional initiatives such as the World Soil Charter 2014 and the UN Sustainable Development Goals 2015; and national laws and policies. The chapter also explores some of the main elements that need to be taken into consideration when designing legislation to address land degradation, including land tenure, access to land, farming systems and land use, the role of protected areas, and physical planning.

France

This chapter examines the important aspects of environmental law in France. It first provides an overview of how powers are allocated with regards to environmental law in France, with particular emphasis on the major trends in the construction of environmental law such as its codification and constitutionalization and the expansion of environmental governance to private law instruments. The discussion then turns to the structure and substance of environmental law in France, taking into account private and public law instruments used in environmental protection. The chapter also analyses the application of environmental rules through the central government, local governments, specialized agencies, and courts. Finally, it looks at some selected issues which have been recently addressed in French environmental law, including the application of the precautionary principle, the remediation of ecological damage, the protection of the environment through criminal law, and the role of the private sector in protecting the environment.