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content of the whole module. Then, the sources of environmental law will be introduced. Special attention will be given to the environmental title in the Treaty on the Functioning of the European Union and to the sources of UK environmental law. Note: This seminar will be led by the tutor but you are expected to have done the essential reading. Seminar outcomes To gain an understanding of: 1. the structure of this module; 2. the sources of environmental law at the international, European and domestic level.
Essential Reading Books and Articles Bell, McGillivray and Pedersen, Environmental Law (2013), Ch 1 and Ch 4. Law and Policy Treaty on the Functioning of the European Union, Art 11 and Title XX Websites Familiarize yourself with the following websites: UK Environmental Law Association at: http://www.ukela.org/rte.asp?id=14 DG Environment European Commission at: http://ec.europa.eu/enviro nment/index_en.htm Further reading Jans and Vedder, European Environmental Law: After Lisbon (2012), Ch. 2 Questions for discussion 1. What is environmental law? 2. Why should we protect the environment? 3. What is the legal basis of European environmental law?
LAYERS OF LAW
International law, EU law, and domestic law are increasingly interdependent. Layering effect: laws that address particular problems overlap.
NATIONAL LAW
In the UK, the term environmental law is commonly used to mean that branch of public law which contains statutes that cover pollution control and wider environmental issues. There are also other mechanisms for the control or influence of activities that cause environmental harm that are not governed by statute. Some instruments are hybrids of public and private law; e.g. environmental agreements made under statutory powers by public bodies with private individuals and groups. Instruments that impose self-regulatory requirements such as compliance schemes under the producer responsibility legislation. Instruments that are based upon increasing public information about polluting activities such as rights of access to information on specific emissions and activities. Economic instruments that cover a range of measures. Increasingly common for there to be regional differences in environmental law. Three main categories of domestic environmental legislation: - Primary legislation: Acts of Parliament. Legislation on single environmental issues is often promoted in the form of private members Bills, reflecting interests of ind ividual MPs and effective lobbying of NGOs. - Secondary legislation: fleshes out the detail of primary legislation. Made by appropriate Secretary of State under the delegated authority of Parliament. Termed regulations, rules, or orders. Secondary legislation may be procedural, list detailed categories, set standards, transpose European obligations, and set long-term goals or visions. - Tertiary legislation, guidance, and other rules: there is an increasing reliance on other rules and guidance to explain the practical workings of environmental laws, and to provide a structure for statutory discretion. Can be used as an aid for the interpretation of statutory provisions, as a more flexible form of informal guidance or rule, as statements of regulatory agency policy and practice, as a way of structuring discretion, promoting consistency and transparency in decision-making, and as rules and guidance on procedural or other technical matters.
enforced.
CASE LAW
Most of the formal sources of environmental law are statutory. There is very little judge-made law and most of what there is consists of the interpretation of statutory provisions. Case law comprises a growing source of law. Substantive environmental cases come before the courts in three main ways: - Disputes about a statutory definition in primary or secondary legislation. Courts interpretation becomes law. - Common law disputes with an environmental flavor; negligence, nuisance, and trespass. - Judicial review of the exercise of power by government and regulatory agencies. The Courts and Environmental Cases The Courts have been at the forefront of the development of some key issues in environmental law such as the definition of waste, and the identity of the polluter in relation to waste pollution. Administrative Appeals and Decision Making There is a range of quasi-judicial decisions that can provide a source of law in its widest sense that is, in the same way that tertiary rules form a source of law. Administrative decisions are not binding on other decisions makers, but they can dictate the decision making processes of the regulatory agencies to whom such powers have been devolved.
TFEU
TITLE XX
ENVIRONMENT Article 191 (ex Article 174 TEC) 1. Union policy on the environment shall contribute to pursuit of the following objectives: preserving, protecting and improving the quality of the environment, protecting human health, prudent and rational utilisation of natural resources, promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.
2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional measures, for noneconomic environmental reasons, subject to a procedure of inspection by the Union. In preparing its policy on the environment, the Union shall take account of: available scientific and technical data, environmental conditions in the various regions of the Union, the potential benefits and costs of action or lack of action, the economic and social development of the Union as a whole and the balanced development of its regions.
4. Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for Union cooperation may be the subject of agreements between the Union and the third parties concerned. The previous subparagraph shall be without prejudice to Member States' competence to negotiate in international bodies and to conclude international agreements.