Environmental Protection - Essay Example

170295 Environment has become very important in the last three decades and rightly so, protecting the environment presents a big challenge to people, governments and world bodies today. Law is central to the management of the environment. Currently, environmental laws present a vast and complex part of legal world. Respect for individual rights and private property, general rights and human freedom have a long heritage and are part of what we call human rights today. They are part of natural law and have existed all along and there is nothing new in their concept. Even in the days of absolute dictators, these human rights were acknowledged to a very large extent. European Convention has recognised Human rights as one of the main cornerstones of its existence. "Under the Human Rights Act 1998, UK courts and public bodies are bound to act in accordance with the Convention. There is one exception to this, which that the Convention right to an individual remedy is not transposed. Instead, there are in effect 'collective' remedies, in the sense that legislation can be decreed incompatible with the Convention and fast-tracked through Parliament for reform," Bell, p.78. European human rights law operates at a general level at which usually it mostly outweighs the environmental rights and interests. ECJ has interpreted the right to respect home life (Article 8) and tries to provide remedy against extreme pollution1. Human rights law also have an indirect impact on environmental rights because it provides various freedoms like freedom of expression (Article 10). It gives the right of peaceful assembly (Art 11) and this means it is possible to voice the grievances and protest publicly about environmental degradation. EC on Human Rights protects civil, political freedoms, but has not particularly developed any rights against environmental degradation. Environmental law is comparatively of a very recent origin and has emerged to safeguard the natural environment from the onslaught of human activities that are continuously polluting the earth. Every country has seen that legislation is necessary to protect the natural environment and ecosystems. This is a combination of common law, treaties, negotiated agreements, statutes regulations, precedents, conventions and other governmental policies passed for the purpose. Some of the laws regulate the activity impact on nature like setting levels of pollution. Environmental law does not have a definite boundary of its own. "The potential lack of doctrinal certainty has, in the United Kingdom at least, led to a number of attempts to 'justify' the existence of a coherent subject known as environmental law as a discrete legal subject area," Bell (2006, p.5). Environmental law is a political discipline and political parties mutually never agree on a particular legislation. According to Bell, British approach to pollution control is pragmatic and involves consideration discretion. Environmental law involves economic, social, political, cultural criteria in addition to environmental main thrust and regulatory agencies conduct the political balancing process, not always with great success. "The power to define and enforce consents is ultimately a power to put people out of business, to deter the introduction of new business or to drive away a going concern," (Hawkins, 1984 in Bell, p.14). Most of the laws are preventive in nature. 1960s started the worldwide phenomena of passing environmental laws and now it has become part of sustainable development and the policy thrives on public participation, environmental justice and it imposes fines and in very serious cases, it could punish with imprisonment. The principle here is to prevent, command and control. There are many rights like private rights, public Law Rights, substantive legal rights and human rights involved in the environmental law. The Climate Change Bill published on 13th March 2007 is aimed at low-carbon economy mainly to cut the carbon emissions by 60% before 2050 and if approved, perhaps UK will become the first country to pass such an ambitious law. This is connected with carbon budget and an independent committee on Climate Change. Human rights and environment are interconnected as the materially impoverished people of the world have to be protected by international and national laws and the failure of government can infringe people's human rights. Linkages between human rights, environmental management, ecosystems and natural resources have been made by European Union Convention because environmental injustices can lead to human rights abuses. Projects, large dams, oil pipelines etc. can destroy or use the natural resources belonging to poor people and make their local habitat unworthy to live in by ruining the biodiversity of the region affecting forests, wildlife, fisheries, rivers and other water bodies, sometimes, even the ocean. Private corporations might violate human rights in many ways by continuous environmental degradation. They could deprive local people of ancestral domain, might not curb pollution, and might work without implementing pollution control measures or even browbeat local activists with their money power. Their chemicals might harm the local population and bring health hazards. With all these problems in mind, European Union and UK Government initiated a number of laws in the direction of environmental preservation. Most of the environmental laws are based on ancient ethics and morality. Public health laws during the days of Industrial Revolution, historical background of sanitary authorities and connected laws like Alkali Act, 1863, Public Health Act, 1875, the River Pollution Prevention Act, 1876, Town planning Act, 1909, River Boards Act, 1948, Water Resources Act, 1991, have all become important landmarks in environmental law. Healthy environment is promoted by EU. Fundamental rights and the general principles of community law are drawn by EU from the basic law of its Member States. The treaties in the European law do not provide a right for a healthy environment or it does not describe the quality of life. Instead, fundamental rights have become an integral part of general principles of community law2. ECJ safeguards these laws and most of them are from the constitutional traditions and international treaties. It says: "Union shall respect fundamental rights as guaranteed by the European convention, for the protection of Human Rights and Fundamental freedoms.and as they result from the constitutional traditions, common to the Member States as general principles of Community Law." Charter of Fundamental rights of the European Union (2001), OJ C364, p.1, Article 37 (Environmental Protection) says: "A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with principles of sustainable development". This does not give an enforceable right to citizens to a clean environment. ECHR came into force in 1953. In UK, environmental law includes a mass of legislation all directly, indirectly or remotely connected ones included. Some older laws got consolidated with additional powers in recent times like Environmental Protection Act 1990 and the Environment Act 1995. Today in all the countries environmental law receives more attention from legislators and lawmakers and general public are more aware of their rights and of the possible pollutants. "Within the European Union, environmental legislation is a high priority and the UK have been forced to take it seriously through a number of European Union Directives" http://www.naturenet.net/law/envlaw1.html In UK, environmental law could be found in national law, EU law and International law and all of them reflect the concern and policies of not only British government, but also the EU and world bodies like UNO. There had been a continuous clamour for better laws because a lot of supports of environmental law feel that the laws lack teeth and is considered to be incoherent and weak. Enforcing environmental law had been rather difficult in spite of injunctions, claims for damages, compensations for injury etc. licences, contracts are supposed to have regulatory set of standards and Environment Agencies have to consent if companies ask for permission to discharge wastes into rivers. Agencies are given powers to inspect, report, refuse permission or take action over pollution created by any company or organisation. Environmental labelling, taxation for environmental damage like carbon tax to improve the efficiency of fossil fuel etc. are becoming more effective now. But the negative point here is that the poorest too have to pay for the increased cost of fuel where 'polluter pays' loses its meaning. The fossil fuel replacement has to some extent, has worked under 'non-fossil fuel obligation'3. Environmental laws are of difficult nature and ECJ usually develops the law on individual cases. "The European Court of Human Rights has not generally taken an expansionist view of human rights as a tool for environmental protection, using the idea of a 'margin of appreciation' to apply their own balancing of political, environmental and economic considerations as against individual rights," (Bell, 16). Hence, while appreciating the human rights, even the ECJ is not free from considering other social, economic and political results of upholding the human rights and if we consider from this standpoint, environmental laws are not much benefited from Human Rights. European Community after adopting Environmental Action Programme in 1973 and Single European Act, 1987, has brought out many important Directives like 75/442,76/160, 2001/80, 79/409, 85/337. 96/61 and 2000/60. EC implies a lot of pressure on member states on matters like sulphur dioxide emissions, nature conservation, reductions in emissions from vehicles, dumping sewage sludge at sea etc. because all these matters undermine the human rights of citizens in many ways. But agreements on Marine disposal of sewage sludge are strictly non-binding and have no legal enforcement mechanism. In recent days sustainable development and environmental integration has caught the attention of all the governments making the issue truly internationalised through working for a common future and they have led way to the second generation environmental policies both in UK and in EU in which waste minimization, elimination of hazardous substances, climate change, shared responsibility, and public participation in decision making are more important. A few rules like paying for contaminated land, sewage management, have come into picture with a threatening cost of non-compliance including criminal liabilities, administrative sanctions, clean-up costs, adverse publicity etc. international standard for environmental management systems (ISO 14001) too are introduced. In the meantime, organisations like Greenpeace and Friends of Earth have started drawing public attention into environmental issues, which in turn influenced EU and UK policies to a large extent. As the environmental problems are of great complexity with hundreds of connected issues all somehow intertwined with human rights, have become a highly difficult area to manage and this complexity creates many ways of looking at one single problem. The moment law is applied, it is encroaching many areas of life. Hence, the sphere of human rights has not been satisfied fully. Courts were highly reluctant to get involved in moral and ethical issues that were cropping up along with environmental issues4. In recent years there had been tremendous shift in the public values, judicial attitudes and environmental issues. European law has made an impact on UK law and as ECJ is given the place of a supreme court in EU, it can override any judgements taken by UK courts. At times, it looks as though environmental laws are driven by EU laws, because they force UK government's had to invent laws, execute them, and then upset the UK legal decisions, to reiterate it with EC judgements. Here, it could be argued that British courts have very little to do, other than being of nonsense value and shouldering the implementation of the laws that are sometimes quite unpopular and difficult to understand. Balancing environmental values legally is a risky work, because environmental laws are always either controversial or encroaching human rights of many parties. If the obvious sufferer has to be supported, human rights of others could be infringed. When science and environment has to be mixed, the result makes it absolutely impossible to decide one way of other. It is a tricky field of law. EU Human Rights have not helped a lot because environmental issues have many perspectives and even the Member Governments have to tread carefully. Protection of human health and retaining their economic ability are two different fields and a judgement cannot be arrived at by considering both. The cost of environmental remedies like water purification, river purification, regeneration of fertile soils etc. is extremely expensive and it is not easy to ignore the monetary loss. In addition, social and cultural perspectives clash. Article 2 of the EC treaty states that the Community's task is ".to promote throughout the Community harmonious, balanced and sustainable development of economic activities'. UK policies reflect the European experience of environmental policies and Human Rights. UK's environmental law is the branch of public law that covers pollution control and other environmental issues. "Under its powers the EU is a party to a number of international environmental measures. It was furthermore argued by the EC Commission Task Force Report on the Environment and the Common Market that a global environmental role should be developed and that external and internal environmental policy should derive from the same principles," Hughs (1996, p.125). In the overall EU scheme, environmental policy links the human rights and the Member States and the policy's legal base could be seen in Mondiet v Islais (1993). EU legislations have direct effect on policies of Member States including UK (European Communities Act 1972, s 2(1)). If the member states fail to implement the policies ECJ can step into the breach and all the member states have to implement such directives from the ECJ if they fail to fulfil obligations under art 189, or restore the human rights of citizens, or grant damages to an individual who was unlawfully made to suffer due to violation of his human rights and environmental policies at large5. In the UK, the European Communities Act 1972, s 2(1) ensures the enforcement of Community rights covered under this Act. Usually English courts give priority to community law because Section 2(4) provides that 'any enactment passed or to be passedshall be construed and have effect subject to' inter alia s 2 (1). Thus all Acts of past and future become subordinate6 to Community law in accordance with s 2 (4), unless and until 'Parliament deliberately passes an Act with the intension of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it and says so in express terms', per Lord Dinning in McCarthys Ltd v Smith (1979) Hughs (139). This makes the Commission the initiator, law maker and the law executor of both Human Rights and Environmental directives. Hence the Commission's role is crucial as the guardian of both of them and actually, it should be easier to implement these policies. But practically, it does not happen that way, because of overlapping issues that are connected with the environmental policies. There are times when ECJ works as an Environmental Tribunal according to one of the writers. Still, UK laws and ECJ laws do clash in the same way, how they clash with the laws of other member states. "The attitude of the ECJ appears to vary according to whether the EUY has legislated or not, and, in the former case, whether harmonisation of national laws is full or partial. Where there should be harmonisation under EU legislation the ECJ considers the directives should be implemented in a matter fully consonant with EU obligations, so for example, the technical requirements of directives are considered exhaustive," Hughes, p.140. But there are many inherent flaws, the main one being the loosely constructed nature of directives, not only due to difficulties of environment touching people in diverse ways, but also owing to the still existing acceptance of environmental irrelevance in the face of economic, social, religious and cultural considerations. "As a result of these inherent flaws in the present state of environmental law it may be that the most that can be expected from it is a relatively modest reduction in the more gross forms of pollution and levels of pollutants. Such improvements are of course worth having and their attainment, set against what has gone before, should not to be undervalued," Leeson (1995, p.5). Environmental activists have been agitating for more power into environmental policies. Pollution, global warming, cruelty to animals, deforestation are all results of thoughtless human activities and also the results of very weak laws. "The weakness of much of the law in practice contrasts with its rhetoric of environmental concern, sustainability and stewardship: this contrast is the product of compromise.What is at stake is using the law to empower people to redefine their relationships with nature and with each other," Elworthy (1997, p.466). Even though there are many constraints, compromises and drawbacks, it is impossible to say that environment movement is not gaining ground, because it is. It is not always possible to disregard all other priorities totally as the mankind has to move forward, while lessening the impact on earth. But it cannot give up the entire modernity. So sometimes it is necessary to strike a balance between the two and this means, striking a balance between an individual's human rights and environmental policy. Both human rights and environments share the same goal because their common ground and shared ideals of a world that shelters and nurtures human and non-human life is highly important and useful for the mankind. There will always be friction between the development of science and technology and environment and human rights. Perhaps the human rights should include an adequate environment to keep people healthy and earth safe. These rights collide with not only other rights, but also sometimes with one another. No doubt non-binding arguments are a leap towards the goal, but they are not very effective. At the same time, EU and its Human Rights are a bit too ideal and UK Government has to think of administrative issues too. Ultra hazardous activities definitely should be curbed without a second thought. Problem arises when an ideal and tremendously useful project has to come up and while doing so, brings problems, destabilisation to communities around it. Only way that UK government can manage is find a highly compromising route in which the human rights of citizens and their livelihoods are not endangered. BIBLIOGRAPHY: 1. Bell, Stuart and McGillivray, Donald (2006), Environmental Law, Oxford University Press. 2. Elworthy, Sue and Holder, Jane (1997), Environmental Protection, Text and Materials, Butterworths, London. 3. Hughes, David (1996), Environmental Law, Butterworths, London. 4. Leeson, John D. (1995), Environmental Law, Pitman Publishing, London. ONLINE SOURCES: 1. http://www.naturenet.net/law/envlaw1.html 2. Read More