Environmental Management: Principles and practice

BOX 3.2 Forms of regulation or legislation (principles, standards,
guidelines, etc., which are not firm laws, but help lawmakers.
Definitions are not rigidly fixed.)
Principle broadly, a step towards establishing a law. Once established, tested
and working, it can be incorporated into law.
Standard levels of pollution, energy efficiency, etc., that are desirable or
required. They provide a benchmark so that different individuals, bodies,
countries, are as far as possible dealing with the same values. A treaty may
incorporate standards.
Guideline suggestions as to how to proceed, usually without real force of law.
Directive documents that set out a desired outcome, but to some extent leave
the ways of reaching it to companies, states or countries.
Licence a right granted to a body, which agrees to terms or pays, which requires
adherence to strict practice and does not give any guarantee of permanent
ownership or usufruct.
Law laws and statutes that require certain actions or standards, and may punish
failure to achieve them.
Treaty a solemn binding agreement between international entities—especially states.
Treaties can lay down rules or treaty constraints. Stricter, more precise treaties are
likely to involve fewer states, and the process of drafting, adopting and ratifying
means that this can be a slow process, and environmental management often needs
rapid action. Vague treaties are quicker and easier to get signed. Few multilateral
treaties are adopted in less than five years: the UN Law of the Sea Convention took
nine years (1973–1982), and some take much more. Treaties can be difficult to
enforce—often enforcement is attempted by an international organization: e.g. the
International Whaling Commission. Treaties should bind states that sign and ratify
them to accept terms as customary law, but in practice they do not always get
transformed into customary law, and some are largely ignored.
Declaration a general statement of intent or drafting of guidelines to follow.
‘Softer’ than the obligations of a treaty.
Convention multilateral instrument signed by many states or international
institutions. Conventions can be vague, which ensures that countries are not
afraid of signing but this can undermine effectiveness.
Protocol less formal agreement, often subsidiary or ancillary to a convention.
Contingency agreement a good way of dealing with uncertainty surrounding
many global environmental management issues. Agreement of what to do if
something happens.

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CHAPTER THREE
44
Three things are especially important for environmental legislation:
1
The precautionary principle, which has evolved to deal with risks and uncertainties
faced by environmental management (Rogers et al., 1997). The meaning is still
not firmly established by law. The principle implies that an ounce of prevention
is worth a pound of cure—it does not prevent problems but may reduce their
occurrence and helps ensure contingency plans are made (Mitchell, 1997:80).
The application of this principle requires either cautious progress until a
development can be judged ‘innocent’, or avoiding development until research
indicates exactly what the risks are, and then proceeding to minimize them. Once
a threat is identified, action should be taken to prevent or control damage even if
there is uncertainty about whether the threat is real. Some environmental problems
become impossible or costly to solve if there is delay, so waiting for research
and legal proof is not costless. Some hold that the principle should be applied in
situations where both the probability and cost of impacts are unknown. The
principle was stressed in many of the decisions reached at the Rio Earth Summit
in 1992. For example, it was endorsed by Article 15 of the 1992 Rio Declaration
on Environment and Development (Freestone, 1994:209–211). Article 130r of
the Maastricht Treaty (Treaty on European Union) of February 1992 states that
EU policy on the environment shall be based on the precautionary principle.
2
The polluter-pays principle—in addition to the obvious—the polluter pays for
damage caused by a development—this principle also implies that a polluter
pays for monitoring and policing. A problem with this approach is that fines
may bankrupt small businesses, yet be low enough for a large company to
write them off as an occasional overhead, which does little for pollution control.
There is debate as to whether the principle should be retrospective—e.g. today
a purchaser who acquires contaminated land in good faith is often forced to
clean up the mess others left (if the polluter pays, how long back does liability
stretch?). Developing countries are seeking to have developed countries pay
more for carbon dioxide controls, arguing that they polluted the world during
the Industrial Revolution, yet enjoy the fruits of invention from that era. The
polluter-pays principle is more a way of allocating costs to the polluter than a
legal principle. OECD member countries adopted the principle in 1972, at
least in theory (OECD, 1975).
3
Freedom of information—if the public, NGOs (‘green watchdogs’) or even
official bodies are unable to get information, environmental planning and
management is hindered. Democracies have begun to release more
information—the USA has a Freedom of Information Act, the EU is moving
in that direction, and in the UK the (1994) Environmental Protection Act has
helped. Few countries have such well-developed disclosure as the USA, which
requires public registers of development activities, publication of Environmental
Impact Statements, hazard warning on products, etc. Some governments and
multinational corporations fear industrial secrets will leak to competitors if
there is too much disclosure, and there are situations where authorities declare
‘strategic’ needs and suspend disclosure.

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BUSINESS AND LAW
45
In many countries, court actions, even if they were fought in the public interest,
had to be brought by an individual, who, if they lost, paid costs. This acted as a
deterrent for anyone to tackle government or large company wrongdoings, because
they lacked equivalent resources. It is desirable that NGOs and individuals be allowed
to bring legal actions to protect the environment, if need be as group cases (class
actions). In the USA the Environmental Defense Fund, the Sierra Club, and
environmental lawyers like Joseph Sax managed to achieve the right to bring class
actions (or group actions) in the 1970s. Subsequently Canada, the UK and several
other countries saw similar legal changes.