What is the Purpose of Environmental Law

by iliyanadimitrova (student)

What is the Purpose of Environmental Law?

Significant developments in environmental law can be traced back to the 1800s; and dealt largely with public health concerns initially.Only since the 1970s however, has ‘environmental law’ as a separate concept formed to tackle the objective of ‘sustainable development’.Common law too has played an equally vital part in between these developments.Indeed, the purpose of environmental laws from 1800s to present has shifted.This shift in purpose shall be discussed, but firstly, taking into considerations the definitions of ‘purpose’, ‘environment’, and‘law’ ; the question shall be interpreted to ask – what the intention of the values are in law and policy,concerning the air, land, and water.

Victorianenvironmental law reflected very muchthe concerns of ‘nuisances’ to public health. Industrialisation only accentuated these concerns within popular values and provisions were taken to intentionally rid the people of such ‘nuisance’. An early example of this creeping concern is the Factories Act 1833.Victorians had mere appreciation of‘nuisance’. What would be considered as pollution in modern perspective was seen as an indicator of prosperity in Victorian Britain. Nevertheless, public health concerns materialised in environmental ‘nuisance’ law. To illustrate, the Smoke Abatement (Metropolitan) Act 1853provided for the control of the nuisances from smokes and vapours in the air – dangerous to human health. Similarly, the Alkali Act 1863 intended to place regulation on the condensing of corrosive Muriatic Acid in Alkali Factories – dangerous to public health; so as to limit its ‘nuisance’ to the public. Therefore, Victorian environmental law, despite being slow to recognise environmental significance, intended to limit the damage of these ‘nuisances’; more to the public that to the environment per se.

Later, in common law, ‘mere nuisance’ transformed to actual concern for the environment itself. There was a change of opinion from tackling pollution that was already present, to trying to prevent the emergence of any new sources in the first place. As an example,the English Law, House of Lords case Rylands v Fletcherwill be examined. In this case it was established that if a man’s nuisances spread to another’s land, he would be strictly liable for the damage caused to the others land. Thus, these preventative measures established precedent to control citizens from creating new pollution through fear of civil action.In addition to this,the later House of Lords case of Hunter v Canary Wharf Limited followed the ‘Rylands rule’ in that ‘nuisance’ (or pollution) would have legal causation to land damage only.Apparently so, this controlling intention in common law protected the environment from damage but was perhaps somewhat unfair to the private citizen in some cases. To illustrate this, if a man had suffered loss as a result of harm caused by another nuisance he would be unlikely to receive damages for example his property as in Canadian High Court case of Bottoni v Henderson.Later, statutory reform wouldbe needed to proportionate and protect both environmental, as well as private interest. Therefore, the purpose of environmental law developed to protective the environment more than the public as it once did in the past; despite perhaps being disproportionate in some circumstances.

This is a preview of the whole essay

In post-war Britain this intention to protect the environmentcontinuesbut, particularly after 1972 toward the principle of ‘sustainable development’;as defined by the Bruntland Report of 1987. It is arguably the main purpose of environmental law today.Perhaps an unsubstantiated claim, it has been argued that the principle in fact ‘…plac[es] human… interests above… environmental protection’;overlooking that it intends tolimit the impact of human population on world ecosystems. The Brundtland report has been criticised to say that its breadth is difficult to be incorporated into policy.This is apparent in the UK up until around the mid 1990s. Despite this, there has been significant intention to incorporate sustainable development; the Climate Change (Scotland) Act 2009 has done particularly well at this. However, it should be asked how effective our sustainability policy really is.The Sustainable Development Commission – the policy advisor for the UK and Scottish Government is to be shut down.Furthermore, this closure has been openly criticised by its commissioners. The intention therefore of environmental law in modern Britain is to pursue sustainable development; all be it not realised yet in policy.

In conclusion, the purpose of environmental law was once public protection, manifested by popular concern, gradually achieved through statue. In addition, later common law provided a good effort to purpose pollution prevention. Now, from international cooperation it now pursues sustainable development, if somewhat ineffective at doing so.

Methodology

For the methodology, five sources shall be discussed to conclude their creditability for essay use. Firstly, the authorship, and for what reason Stephen Tromans and others, Environmental Law Encyclopaedia shall be discussed.

In terms of authorship, the source is creditable to be used as the main editor of the encyclopedia is Stephen Tromans QC. He studied at Cambridge University and graduated with a 1st class MA Law (Hons) degree in 1981. He has held a number of respected positions, and his environmental expertise is highly regarded amongst many. Additionally he has been involved in many significant environmental cases. The loose-leaf publication was published by Sweet & Maxwell. However, although they are a well established legal publisher; interestingly their parent company is Thomson Reuters. The parent company is not in itself lacking in creditability but, they own another legal publisher – the Scottish branch of their corporation – W. Green.

Indeed, consider W. Green and its parent company in discussing Francis McManus and others, Environmental Law in Scotland. In fact, in terms of authorship, the encyclopedia should not be flawed, McManus is Professor of Environmental Law and Delict at the University of Napier; and has sound academic origins and expertise. The query of creditability lies again with the publisher – W. Green. As aforementioned, Thomson Reuters is their parent company. These two encyclopedias are very comprehensive sources of environmental law and would be the first access to anyone wanting to learn about the topic. Perhaps there is too much of a monopoly of information as the sources are very similar in content despite having different authors. The information should not be taken as true.

Furthermore, Jonathon Porritt’s blog for example generally takes a more level headed look at environmental problems. Porritt is the chairman of Sustainable Development Commission UK, his blog is self funded and the argument he presents is clear and equitable to the circumstances he comments on; despite his passion perhaps getting in the way of that clarity sometimes.

In addition, the case of Cambridge Water Company Ltd v Eastern Counties Leather Plc is creditable because it continues the ‘Rylands rule’ precedent. This relates to other sources such as Hunter v Canary Wharf Ltd in that it provides a firm link of establishing precedent of ‘nuisances’, and perhaps as consequence of the series of cases applying the Rylands rule, to an extent the notion of ‘sustainable development’ was encouraged to try and find a proportionate answer to both our environmental problems and the concerns of man.

Such encouragement might be seen in the World Commission’s, Our Common Future. Indeed it was produced as consequence of UN General Assembly 38/161, a creditable development from the initial consensus of realising sustainable development at the Rio Conference in 1992. Its authorship contains commissioners from across both the developed and developing world. This is positive and largely creditable because the 2 main objectives of sustainable development are for poorer economies to grow sustainably so that there might be environmental and economic equity across the globe where there is not so at present. In addition, rich economies are to scale down their pollution, and to aid the development of other economies by their environmental protection policies. Therefore, the broad spectrum of commissioners is a good indicator that such aims are being upheld.

Bibliography

Bell Stuart and MacGillivray Donald, Environmental Law, (7thedn, Oxford University Press Inc., New York, 2008).

Connor R and Dovers S in Richardson B and others, Environmental Law of Sustainability, (edn, Hart Publishing, North America, 2006).

Department for Environmental, Food, and Rural Affairs, ‘Sustainable Development in Government’ (28 February 2011), <> accessed 05 February 2011, Government department.

Department for Communities and Local Government, Planning Policy Statement 1: Delivering Sustainable Development, (edn, The Stationary Office, London, 2005).

Ellis Jaye and Wood Stepan in Richardson B and others, Environmental Law of Sustainability, (edn, Hart Publishing, North America, 2006).

International Institute for Sustainable Development, ‘Successes and Failures’, <> accessed 6 March 2011, Canadian-based public policy research institute.

The Laws of Scotland: Stair MemorialEncyclopaedia, Environment Reissue, Para 72.

Lochhead Richard, ‘Vision of a Greener Scotland’ (14 May 2008), <> accessed 5 March 2011, Ministers speech.

McManus Francis and others, Environmental Law in Scotland, (edn. W. Green & Son Ltd, 2007)

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The World Commission on Environment and Development, Our Common Future, (edn, Oxford University Press, Oxford, 1989).

Laws of Scotland: Stair Memorial Encyclopaedia, Environment Reissue, para 1.

See the principles discussed in the United Nations Conference on the Human Environment (16 June 1972) <> accessed on 13 March 2011.

Sweet & Maxwell, Encyclopaedia on Environmental Law, Env.Law. R 12, 1998, at A 11.

Ibid A3 – A6.

Defined as “…the reason for which something is done… or exists”, Catherine Soanes and Angus Stevenson, Concise Oxford English Dictionary, (11thedn, Oxford University Press Inc, New York, 2008) 1167.

Defined as any media included within the air, land, or water; The domestic Environment Protection Act 1990 s 1; the European Environmental Standard ISO 14001; and the World Commission on Environment and Development, Our Common Future, (edn, Oxford University Press, Oxford, 1989) 45, all include these substances in their definitions.

Defined in an environmental context is the fruition of popular values in both policies and law, Stuart Bell and Donald MacGillivray, Environmental Law, (7thedn, Oxford University Press Inc., New York, 2008) 42.

See Public Health Act 1897 (59 & 60 Victc 38) s 91 for the notion of ‘nuisances’ to public health.

(3 & 4 Wm IV c 103), although it concerned youth employment into dangerous workplaces and not particularly a public nuisance, this was a significant first development for environmental law in Britain.

Francis McManus and others, Environmental Law in Scotland, (edn, W. Green, Edinburgh, 2007) 1/2.

(16 &17 Vict c 128).

(26 & 27 Vict c 124).

[1866] LR Ex 265.

[1997] AC 655.

(1978) 90 DLR (3d) 301, the ‘Rylands rule’ did not apply because of the lack of foreseeability. Cf. the House of Lords case of Cambridge Water Company Limited v Eastern Counties Leather Plc [1994] 2 AC 264.

See for example the Public Health (Scotland) Act 1897ss 22-29 especially, highlighting the absolute intention to rid public health of environmental nuisances over the citizens private interests.

For example see the Clean Air Act 1956, ‘…an act to make provision for abating the pollution of the air’.

Defined as ‘…development that meets the needs of the present without compromising the ability of future generations to meet their own needs’, The World Commission on Environment and Development, Our Common Future, (edn, Oxford University Press, Oxford, 1989) 43.

Both The Laws of Scotland: Stair Memorial Encyclopaedia, Environment Reissue, Para 1; and Francis McManus, Environmental Law in Scotland, (edn, W. Green & Son Ltd, Edinburgh, 2007) 2/4 argue that sustainable development is the main aim of modern environmental law.

Jaye Ellis and Stepan Wood, ‘International Environmental Law’ in B Richardson and others, Environmental Law for Sustainability, (edn, Hart Publishing, North America, 2006) 375

The World Commission on Environment and Development, Our Common Future, (edn, Oxford University Press, Oxford, 1989) 11-17.

Francis McManus and others, Environmental Law in Scotland, (edn. W. Green & Son Ltd, 2007) 2/4.

Although the Environmental Protection Act 1990 was the first major consolidation of environmental law in the UK, sustainable development became better focused after the United Nations General Assembly, Report on the United Nations Conference on Environment and Development, A/CONF.151/26(Vol. I), 3-14 June 2011.

According to the Sustainable Development Commission Scotland, Sustainable Development: Fourth Annual Assessment of Progress by the Scottish Government, (Scottish Executive, 2010) 62.

Sustainable Development Commission, ‘Mainstreaming sustainable development’, (28 February 2011) <> accessed 17 March 2011.

See JonothonPorritt, ‘SD RIP’, (2 March 2011) <> accessed on 17 March 2011. He is the chairman of the Sustainable Development Commission UK.