Essays about Factors Affecting the Effectiveness of Environmental Law - Essay Example

Environmental Policies Essay Factors Effecting the Effectiveness of Environmental Law: Air and Water Environmental laws are founded on policies. In the modern era there are a number of possible policies that influence lawmakers. The main policies are sustainable development, the avoidance of eminent environmental collapse, developing a new society through environmentalism and animal liberation. The degree to which each or any of these policies will shape the law will depend on the extent of environmental damages in a particular area. Even so, sustainable development appears to be the most common policy driver among nation states with respect to environmental laws. Sustainable development not only responds to current needs, but also seeks to ensure that the needs of subsequent generations are not compromised in the process (UK Government 2010). There are a number of policies within the main sustainable development policy for protecting the environment against the incidents of air and water pollution. With respect to air pollution, sustainable development begins with national regulation of industrial conduct, this is tempered by reference to local controls of smoke, smog and nuisance as well as international controls that seek to safeguard against damages to the global climate. Cumulatively, these policies take into account the competing interests of the right to enjoyment of one’s property and the welfare and interests of society as a whole. In other words protection of the environment against air pollution must take into account that the owner of land has the right to enjoy the use of it. As Sir John Byles stated in Hole v Barlow [1858], the law permits the “reasonable use of a lawful trade in a convenient and proper place” (Hole v Barlow 1858). This right does not end simply because an individual might “suffer annoyance from its being carried on” (Hole v Barlow 1858). Sir John Byles’ observation of the law relative to air pollution therefore reflects a policy grounded in sustainable development. If the land is used reasonably, simply annoyance from others as a result of the use of the land does not substantiate environmental concerns with respect to air pollution. The case of St. Helen’s Smelting Co. v Tipping [1865] offers more insight into how sustainable development policies drive environmental protection laws. In this case the House of Lords distinguished between interfering with enjoyment of the property in question and physical damages. In order to permit interference in the use of land, that use of the land must be shown to be unreasonable. However, if there is actual physical damages, there can be sanction irrespective of how the land is used (St. Helen’s Smelting Co. v Tipping 1865). The right to make a claim for redress can only rest with an actual victim (Lopez Ostra v Spain 1995). Therefore air pollution resulting from the work carried out by a factory will only be actionable by a victim who suffers harm as a result of the manner in which the factory operates and releases pollutants in the air. The common air we breathe however, is regulated by policies seeking to prevent and control the threat of disease and the contamination of the air. The Clean Air Act 1956 not only demonstrates this degree of control and prevention, but also demonstrates the significance of sustainable development policies. In this regard, the Clean Air Act 1956 and now the Clean Air Act 1993 seeks to control toxic emissions in the air, provides for furnace designs, the height and design of chimneys and designates the smoke control zones (Clean Air Act 1993). It therefore follows that the Clean Air Act 1993, by statutorily controlling emissions, and smoke emissions via furnace and chimney designs and by designating smoke zones, attempts to ensure that the air is used reasonably. The idea is to ensure that the current needs are met without compromising the needs of future generations under the auspices of sustainable development policies. Other statutory provisions designed to meet current needs and to safeguard against compromising the needs of future generations take a similar approach. These laws attempt to ensure that in the reasonable use of property, emissions correspond with what amounts to best practicable means. This is best demonstrated by the Environmental Protection Act 1990. By virtue of the 1990 Act, local authorities are at liberty to insist that those within their boroughs safeguard against specific nuisances such as excessive smoke emissions, dust, gases, steam, smell among others (Environmental Protection Act 1990). The 1990 Act also applies to the control of industrial use of the air or the extent to which industries dump pollutants that impact the air. There are a number of statutory provisions such as Control of Pollution Act 1974 which provides for licenses for air emissions that emanate from industrial sites and the various Public Health Acts and their replacements which controls what amounts to offensive trades. The idea is to subscribe to a sustainable development policy. Policies and factors driving the statutory protection of the water are likewise founded on concepts of sustainable development. The main statutory provisions are found in the Water Resources Act 1991. The 1991 Act seeks to protect and control damages to inland waters, ground water, coastal waters and territorial waters (Water Resources Act 1991). Sustainable development is also reflected in the MARPOL Convention 1973 and the Merchant Shipping Act 1995 which are calculated to prevent pollution of waters by oil. Again, these provisions permit the use of the land within reason so that current needs are met and the needs of future generations are not compromised. However, in the protection of waters, a policy reflective of the avoidance of eminent environmental collapse is encapsulated in the Food and Environment Protection Act 1985 which prohibits dumping at sea altogether. The avoidance of eminent environmental collapse is reflected in a number of anti-dumping statutes designed to ensure that waters are not contaminated by raw waste disposal and that any waste disposed of is cleaned up. Essay 2: Factors Effecting the Effectiveness of Environmental Law: Contaminated Land and Waste Sustainable development is the key driver in policies effecting environmental law relative to contaminated land and waste. Invariably, the protection of these areas of the environment take into account the degree of damages that can be sustained by other areas of the environment. For instance, contaminated land and excessive waste can damage both the air and the water as well as the land. For example the oil depot explosion in Hertfordshire, December 2005 did not merely damage the land, but also polluted the air. Similarly, groundwater was contaminated by hydrocarbons and perflurooctane sulphonate. The damages were not just immediate by long term in that by 2007, groundwater within 2 kms from the explosion had been contaminated and a local drinking water borehole was closed. While the damages to the environment as a result of the oil depot explosion in Hertfordshire was an industrial accident, there are other ways that industries can damage and contaminate the land but for environmental protection laws. Industries produce and expose the environment to legacy contaminants such as asbestos, heavy metals, lead, hydrocarbons and solvents. Industries also produce and expose the environment to mining subsidence and ground gases. Some of the factors influencing the effectiveness of environmental laws relative to land contaminations are commercial and indicate the significance of the sustainable development policy. The fact is if the degree to which these land contaminants are released into the environment are not controlled, there are a number of commercial consequences. Bankers may refuse to finance projects. Insurers may also refuse to insure these projects, investors may refuse to invest, public authorities may deny licenses, politicians will likely withdraw support, consumers will boycott products and services and workers may leave (Heseltine 1991). Guided by these factors and consequences which reflect a collective degree of concern for the preservation of the land, and the policy of sustainable development, land contamination environmental policies have produced laws that seek to prevent abuse and exploitation of the use of the land by industries and individuals in general. For instance Section 143 of the Environmental Protection Act 1990 provides for a register of land that is potentially contaminated. The responsibility to clean up is also recognised by the common law and liability will be extended to environmental consultants (Urban Regeneration Agency v Moft MacDonald 1998). The Corby Group Litigation Claimants v Corby Borough Council [2009] 2 WLR 609 is instructive with respect to environmental policies and law. In this case, the appellant Corby Group was found to be negligent in its failure to decontaminate a site. Liability was founded by reference to evidence of a cluster of birth defects in the relevant area. All indications are therefore that while, the land can be used for profit, current needs and future needs most not be compromised in the process. Waste, like land contamination is a necessary side effect of growth and industry. Like land contamination, sustainable development is a necessary policy for ensuring that excessive waste and abusive practices do not meet immediate needs alone. It is also important that the future generation’s needs are safeguarded. In this regard, waste is generated in the ordinary course of industry and living in general. Waste is best understood as trash, garbage, rubbish, litter and junk. Waste emanates from a variety of sources such as used food, rubble, animal beddings, goods disposed of at sea, ore refuse, scum emanating from melting metals, earth from exaction, disposed of articles and any number of items disposed of. If waste is not cleaned up or controlled the environment would become a contaminated wasteland. In order to preserve the environment effectively against the risk of contamination, waste is categorised into two categories. Waste is either recoverable/recycled or disposed of. Anything that can be recycled is recovered for that purpose and waste that is disposed of is subject to clean up operations. Recoverable waste means that material taken from the earth to produce these items in the first place will not have to be taken to produce replacement products. The recoverable items will merely be recycled and reintroduced on the market. The EU has an unambiguous waste policy. The policies in order of priority are: prevention, minimisation, reuse, recycling, energy recovery and disposal. In other words, prevention is the most prized policy whereas disposal is the least prized. However, there is a clear recognition that waste is necessary but it should not be automatic. The idea is to ensure that waste is the last resort. The first priority is to prevent the creation of waste. Since prevention is not always possible, minimisation is the next best thing followed by rues and recycling and so on. In order to comply with this hierarchal order of waste priorities, the EC has generated a regulatory regime that increases the standards for waste management and encourages the engagement of stakeholders. Ultimately, the main principles and policies of the EC’s legal framework for waste management is characterized by the three Ps: proximity, polluter pays and precautionary principles. The underlying factors commanding waste management are directly related to the consequences of excessive waste. To begin with, waste is reflective of inefficiency. It is also a health hazard and pollutes the environment. Moreover, waste is unpleasant to look at and produces unpleasant odours. In this regard, waste management laws dictates how and where waste can be disposed of as well as processed or stored. Waste management laws also encourage recycling and recovering appropriate items. Waste laws also attempts to decrease waste, control littering and industrial waste. Environmental Agencies and local authorities have the authority to implement measures for exercising control, management and prevention measures. The Environmental Protection Act 1990 reflects the policies and factors guiding sustainable development relative to waste management by prohibiting harmful disposal of waste and providing for appropriate disposal and clean-up requirements. Bibliography Clean Air Act 1993 Corby Group Litigation Claimants v Corby Borough Council [2009] 2 WLR 609. Environmental Protection Act 1990. Food and Environment Protection Act 1985. Heseltine, M. Cited in The Times, 6 November 1991. Hole v Barlow [1858] 140 ER 1113. Lopez Ostra v Spain (1995) 20 EHRR 277. St. Helen’s Smelting Co. v Tipping [1865] 11 HL Cas 642. UK Government, (2010) “Sustainable Development”. http://www.defra.gov.uk/sustainable/government/ (Retrieved 11 Feb. 2011). Urban Regeneration Agency v Moft MacDonald [1998] High Court (ENDS 291). Water Resources Act 1991. Read More