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Principles of environmental law

The design and application of modern environmental law have been
shaped by a set of principles and concepts outlined in publications
such as Our Common Future (1987), published by the World
Commission on Environment and Development, and the Earth
Summit’s Rio Declaration (1992).
The precautionary principle
As discussed above, environmental law regularly operates in areas
complicated by high levels of scientific uncertainty. In the case of
many activities that entail some change to the environment, it is
impossible to determine precisely what effects the activity will have on
the quality of the environment or on human health. It is generally
impossible to know, for example, whether a certain level of air
pollution will result in an increase in mortality from respiratory
disease, whether a certain level of water pollution will reduce a
healthy fish population, or whether oil development in an
environmentally sensitive area will significantly disturb the native
wildlife. The precautionary principle requires that, if there is a strong
suspicion that a certain activity may have environmentally harmful
consequences, it is better to control that activity now rather than to
wait for incontrovertible scientific evidence. This principle is
expressed in the Rio Declaration, which stipulates that, where there
are “threats of serious or irreversible damage, lack of full scientific
certainty shall not be used as a reason for postponing cost-effective
measures to prevent environmental degradation.” In the United States
the precautionary principle was incorporated into the design of
habitat-conservation plans required under the aegis of the Endangered
Species Act. In 1989 the EC invoked the precautionary principle when
it banned the importation of U.S. hormone-fed beef, and in 2000 the
organization adopted the principle as a “full-fledged and general
principle of international law.” In 1999 Australia and New
Zealand invoked the precautionary principle in their suit against
Japan for its alleged overfishing of southern bluefin tuna.

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The prevention principle
Although much environmental legislation is drafted in response
to catastrophes, preventing environmental harm is cheaper, easier,
and less environmentally dangerous than reacting to environmental
harm that already has taken place. The prevention principle is the
fundamental notion behind laws regulating the generation,
transportation, treatment, storage, and disposal of hazardous waste
and laws regulating the use of pesticides. The principle was the
foundation of the Basel Convention on the Control of Transboundary
Movements of Hazardous Wastes and their Disposal (1989), which
sought to minimize the production of hazardous waste and to combat
illegal dumping. The prevention principle also was an important
element of the EC’s Third Environmental Action Programme, which
was adopted in 1983.
The “polluter pays” principle
Since the early 1970s the “polluter pays” principle has been a
dominant concept in environmental law. Many economists claim that
much environmental harm is caused by producers who “externalize”
the costs of their activities. For example, factories that emit unfiltered
exhaust into the atmosphere or discharge untreated chemicals into a
river pay little to dispose of their waste. Instead, the cost of waste
disposal in the form of pollution is borne by the entire community.
Similarly, the driver of an automobile bears the costs of fuel and
maintenance but externalizes the costs associated with the gases
emitted from the tailpipe. Accordingly, the purpose of many
environmental regulations is to force polluters to bear the real costs of
their pollution, though such costs often are difficult to calculate
precisely. In theory, such measures encourage producers of pollution
to make cleaner products or to use cleaner technologies. The “polluter
pays” principle underlies U.S. laws requiring the cleanup of releases of
hazardous substances, including oil. One such law, the Oil Pollution
Act (1990), was passed in reaction to the spillage of some 11 million
gallons (41 million litres) of oil into Prince William Sound in Alaska in
1989. The “polluter pays” principle also guides the policies of
the EU and other governments throughout the world. A 1991
ordinance in Germany, for example, held businesses responsible for
the costs of recycling or disposing of their products’ packaging, up to
the end of the product’s life cycle; however, the German
Federal Constitutional Court struck down the regulation as
unconstitutional. Such policies also have been adopted at the regional
or state level; in 1996 the U.S. state of Florida, in order to protect its
environmentally sensitive Everglades region, incorporated a limited
“polluter pays” provision into its constitution.
The integration principle
Environmental protection requires that due consideration be given to
the potential consequences of environmentally fateful decisions.
Various jurisdictions (e.g., the United States and the EU) and business
organizations (e.g., the U.S. Chamber of Commerce)
have integrated environmental considerations into their decision-
making processes through environmental-impact-
assessment mandates and other provisions.
The public participation principle
Decisions about environmental protection often formally integrate the
views of the public. Generally, government decisions to set
environmental standards for specific types of pollution, to permit
significant environmentally damaging activities, or to preserve
significant resources are made only after the impending decision has
been formally and publicly announced and the public has been given
the opportunity to influence the decision through written comments or
hearings. In many countries citizens may challenge in court or before
administrative bodies government decisions affecting the
environment. These citizen lawsuits have become an important
component of environmental decision making at both the national and
the international level.

Public participation in environmental decision making has

been facilitated in Europe and North America by laws
that mandate extensive public access to government information on
the environment. Similar measures at the international level include
the Rio Declaration and the 1998 Århus Convention, which committed
the 40 European signatory states to increase the environmental
information available to the public and to enhance the public’s ability
to participate in government decisions that affect the environment.
During the 1990s the Internet became a primary vehicle
for disseminating environmental information to the public.
Sustainable development
Sustainable development is an approach to economic planning that
attempts to foster economic growth while preserving the quality of
the environment for future generations. Despite its enormous
popularity in the last two decades of the 20th century, the concept of
sustainable development proved difficult to apply in many cases,
primarily because the results of long-term sustainability analyses
depend on the particular resources focused upon. For example, a
forest that will provide a sustained yield of timber in perpetuity may
not support native bird populations, and a mineral deposit that will
eventually be exhausted may nevertheless support more or less
sustainable communities. Sustainability was the focus of the
1992 Earth Summit and later was central to a multitude of
environmental studies.

One of the most important areas of the law of sustainable development

is ecotourism. Although tourism poses the threat of environmental
harm from pollution and the overuse of natural resources, it also can
create economic incentives for the preservation of the environment in
developing countries and increase awareness of unique and fragile
ecosystems throughout the world. In 1995 the World Conference on
Sustainable Tourism, held on the island of Lanzarote in the Canary
Islands, adopted a charter that encouraged the development of laws
that would promote the dual goals of economic development through
tourism and protection of the environment. Two years later, in
the Malé Declaration on Sustainable Tourism, 27 Asian-Pacific
countries pledged themselves to a set of principles that included
fostering awareness of environmental ethics in tourism, reducing
waste, promoting natural and cultural diversity, and supporting local
economies and local community involvement. Highlighting the
growing importance of sustainable tourism, the World Tourism
Organization declared 2002 the International Year of Ecotourism.
Current trends and prospects
Although numerous international environmental treaties have been
concluded, effective agreements remain difficult to achieve for a
variety of reasons. Because environmental problems ignore political
boundaries, they can be adequately addressed only with the
cooperation of numerous governments, among which there may be
serious disagreements on important points of environmental policy.
Furthermore, because the measures necessary to address
environmental problems typically result in social and economic
hardships in the countries that adopt them, many countries,
particularly in the developing world, have been reluctant to enter into
environmental treaties. Since the 1970s a growing number of
environmental treaties have incorporated provisions designed to
encourage their adoption by developing countries. Such measures
include financial cooperation, technology transfer, and differential
implementation schedules and obligations.

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The greatest challenge to the effectiveness of environmental treaties

is compliance. Although treaties can attempt to enforce compliance
through mechanisms such as sanctions, such measures usually are of
limited usefulness, in part because countries in compliance with a
treaty may be unwilling or unable to impose the sanctions called for by
the treaty. In general, the threat of sanctions is less important to most
countries than the possibility that by violating their international
obligations they risk losing their good standing in the international
community. Enforcement mechanisms other than sanctions have been
difficult to establish, usually because they would require countries to
cede significant aspects of their national sovereignty to foreign or
international organizations. In most agreements, therefore,
enforcement is treated as a domestic issue, an approach that
effectively allows each country to define compliance in whatever way
best serves its national interest. Despite this difficulty, international
environmental treaties and agreements are likely to grow in
importance as international environmental problems become
more acute.

Many areas of international environmental law remain

underdeveloped. Although international agreements have helped to
make the laws and regulations applicable to some types of
environmentally harmful activity more or less consistent in different
countries, those applicable to other such activities can differ in
dramatic ways. Because in most cases the damage caused by
environmentally harmful activities cannot be contained within
national boundaries, the lack of consistency in the law has led to
situations in which activities that are legal in some countries result in
illegal or otherwise unacceptable levels of environmental damage in
neighbouring countries.

This problem became particularly acute with the adoption of free trade
agreements beginning in the early 1990s. The North American Free
Trade Agreement (NAFTA), for example, resulted in the creation of
large numbers of maquiladoras—factories jointly owned by U.S. and
Mexican corporations and operated in Mexico—inside a 60-mile-
(100-km) wide free trade zone along the U.S.-Mexican border. Because
Mexico’s government lacked both the resources and the political will
to enforce the country’s environmental laws, the maquiladoras were
able to pollute surrounding areas with relative impunity, often
dumping hazardous wastes on the ground or directly into waterways,
where they were carried into U.S. territory. Prior to NAFTA’s adoption
in 1992, the prospect of problems such as these led negotiators to
append a so-called “side agreement” to the treaty, which pledged
environmental cooperation between the signatory states. Meanwhile,
in Europe concerns about the apparent connection between free trade
agreements and environmental degradation fueled opposition to the