Environmental Law

and Policy
V. Cheelo
Field of Law
Fields of law
• Law is not a homogeneous body of rules; it
consists of many fields of law that
sometimes exhibit large differences.
• The different legal fields include, Property law,
Constitutional law, International law, and Criminal law
etc.
• It will focus on two major divisions of law, namely,
the public and private law and, substantive and
procedural law.
Fields of law
Public Law and Private Law
• The first major division is between public
and private law. Simply stated

– Public law is that part of the law in which the

government as such plays a role.

– Private law is that part of the law in which the

government as such does not play a role.
Fields of law
• Private Law
• Private law deals with the mutual relations
between citizens.
• Property law and contract law are major
branches of private law, which regulate things
such as sales, ownership, and mortgages.
• A third branch of private law is tort law, which
deals with the compensation for damage that
occurs when there is no contract.
Fields of law
Private Law
• Other branches of private law include the family
law (marriage, adoption, right to a name) and the
law of commerce, which regulates, among other
things, the transport of goods.

• A special branch is private international law,

which determines which laws are applicable if a
case falls under more than one jurisdiction.
Fields of law
• Public law
• Public law is characterized by the fact that the
government, as such, plays a central role.
• There are four main branches of public law. The
best known of these may be criminal law.
• Criminal law is a branch of public law because
the tracing, prosecution, and punishment of
criminals are handled by, or on behalf of, the
government.
Fields of law
• Public Law
• A second important branch of public law organizes the
State and the government.
• This branch is called constitutional law and deals with
topics such as the division of government powers (Trias
Politica), the functioning of democracy, the creation of
legislation, and the relationship between central and local
government agents.
• Traditionally, it also deals with human rights, but that field
now also falls under public international law.
Fields of law
• Public Law
• The third branch, administrative law, covers the most
expansive part of public law and deals with the many
interactions between government agents and civilians or
private organizations.
• Administrative law has many branches of its own,
including social security law, environmental law, and tax
law.
• Public international law regulates relations between
States and international organizations and is also a branch
of public law.
Fields of Law
Substantive and procedural laws
Substantive law establishes what one can and cannot
do, while procedural law defines how something is to
be done.

• For example Mubita holds up a Shoprite

supermarket. The police obtain an arrest warrant
and a search warrant and go to his house.

• When they enter, they immediately place the Mubita

under arrest and read him his rights.
Fields of Law
Substantive and procedural laws
• While searching the house for Mubita’s gun and the
money from the robbery, an officer finds 4 kilograms
of marijuana

• Substantive law describes the crime of robbery

which is what the police allege Mubita committed.

• Substantive law also defines the crime of illegal

possession of a controlled substance-in this case,
marijuana.
Fields of law
• Substantive and Procedural Law
• Substantive law consists of rules that give people rights
and determine what people should do
• Not everyone always complies with all duty-imposing
rules nor are all the rights of legal subjects always
respected.
• If law is to function well, it has to provide the means
through which compliance with duties and respect for
rights can be enforced. These means are given by
procedural law.
Fields of law
• Substantive and Procedural Law
• This field of law provides the rules for court procedures
and for the organization of the judiciary. It also includes
rules that specify how judicial orders can be enforced.

• There are branches of procedural law for each of the

major branches of substantive law.

• This means that there exist rules for civil procedure,

which deal with the enforcement of private law.
Fields of law
• Substantive and Procedural Law
• There are also rules for criminal procedure,
which specify how criminal suspects can be
traced, prosecuted, and after conviction -
punished.

• Further, there are rules of administrative

procedure, indicating, for example, how
environmental law or tax law can be enforced.
Procedural Law
• Procedural laws define steps that the police took in
obtaining the warrant, arresting Mubita and searching his
house.
• But categorizing a law as procedural does not make it less
important than one categorized as substantive.
• In this example, the procedures are required by the
Constitution.
• If the police fail to observe them, a court may not admit
the evidence the police found in Mubita’s house or,
perhaps may not permit Mubita to be tried for either
crime because the arrest was invalid.
• Procedural law will also govern how the court system
treats the case against Mubita.
Legal Subjects
• Legal rules impose duties upon and attribute
competences and rights to legal subjects.
• These legal subjects are typically human beings,
but in theory law can give the status of a legal
subject to anyone or anything it wants.
• For example, a foundation, a company with
limited liability, a State, or a municipality, can and
in many countries do - be counted as legal
subjects.
Legal subjects
• Under the law, human beings are called «natural
persons» (personnes physiques, natürliche
Personen),
• While organizations that have received the status
of legal subjects are called «legal persons»
(personnes morales, juristische Personen)
• The consequences of being a legal subject vary
from one field of law to another. In criminal law,
being a legal subject means to be addressed by
rules of criminal law and to become punishable in
case of violation.
Legal subjects
• Natural persons are protected by the human
rights that are assigned to them.

• They have a right to privacy, freedom of

expression, freedom of religion, and a right to
physical integrity.

• Not all of these rights make sense when applied

to legal persons.
Legal subjects
• In private law, legal subjects have rights, such as
property or a claim to be paid money, and legal
subjects can perform juridical acts.

• These consequences pertain to both natural and

legal persons.
Rules, Operative Facts, and Legal
Consequences
• A common understanding of law is that it
consists of rules that prescribe behavior.
• However, there are also rules that give
definitions, create rights and competences, define
procedures, and fulfill still other functions.
• A legal rule is applicable to a case if the facts of
the case satisfy the conditions of the rule. The
facts of a case that match the conditions are
called operative facts.
Rules, Operative Facts, and Legal
Consequences
• A fact can only be an operative fact if a rule attaches legal
consequences to it.
• Other examples of operative facts are:
– Someone passes away. This has the legal consequence that the
property of the deceased person is inherited by his heirs.
– Someone is the owner of a book. This has the legal
consequence that this person will be competent to alienate
the book (alienation is moving ownership to somebody else).
– A legislator creates a statute. This has the legal consequence
that new rules come into existence.
– A court sentences a criminal suspect. This has the legal
consequence that it becomes allowed to incarcerate this
person.
Juridical Acts
• Law is dynamic, both in the sense that the rules change over
the course of time and in the sense that the legal positions of
individual persons are subject to modifications.
• An example of the latter is that Mubita was the owner of a
Lamborghini sports car, and then because he sold it, he was no
longer the owner.
• Some of these changes occur spontaneously; when a baby is
born, it immediately has the right to privacy, or when a building
collapses, the possessor of the building becomes liable for
damages.
• However, not all operative facts just happen; some of them
were brought about intentionally. If Mubita sold his car, he
intentionally brought about her loss of ownership of the car.
Juridical Acts
• A juridical act is an act performed with the
intention to bring about legal consequences,
specifically one where the law connects legal
consequences to the act for the reason that they
were intended.

• Examples of juridical acts are contracts, last wills,

legislative acts, judicial decisions, and
administrative dispositions.
Fields of law
• Factual Acts
• We will use the expression “factual acts” to refer to acts,
usually performed by the administration, that are not
aimed at creating legal consequences
• Formalities
• Sometimes the performance of a juridical act requires
that formalities are respected.
• Only if these formalities are taken into account will the
act in question, for instance, signing a document in the
presence of two witnesses, count as making a last will.
Fields of law
• Nullity, Validity, and Avoidance
• If a person or an organization attempts to
perform a juridical act for which they lack the
relevant competence, the act in question will
normally not have the intended legal
consequences.
• The act is then said to be null and void.
Fields of law
• Duties, Prohibitions, and Permissions
• Two of the most important notions in law are those of
«duty» and «right».
• is sometimes thought that the two are closely related in
the sense that the duty of one person corresponds to the
right of another and vice versa.
• If somebody has a duty to do something, this means that
he is obligated to do it. Every duty has two elements:
– 1. The agent who has the duty
– 2. The kind of action which the agent is obligated to perform
Fields of law
• Duties, Prohibitions, and Permissions
• Duties are meant to guide persons in their behavior.
• This means that duties are always addressed to one or
more specific agents.
• We use the general term “agent” because not only
natural persons but also groups and organizations can
have duties
• Rules that impose duties are also called “mandatory
rules”.
• Every duty has a content, which indicates what the
addressee of the duty is obligated to do.
Fields of law
• Duties, Prohibitions, and Permissions
• A prohibition is nothing other than a duty to
refrain from doing something.
• Permission
• If an agent is permitted (allowed) to perform
some kind of action, this means that the agent is
not forbidden to perform that kind of action.
• Permission is thus usually the mere absence of a
prohibition; no permissive rule or explicit
permission
Fields of law
• Permission
• Police officers, for instance, are usually permitted
to perform a body search on suspects of serious
crimes.
• Permissions are also often the result of a juridical
act by which a permission is granted.
• Rights
• There are many different kinds of rights which
differ considerably from each other.
Fields of law
• Rights
• There are two characteristics that most (but not
all) rights share. One is that rights represent
interests that are protected by law.
• The other characteristic is that rights are like
pincushion.
• These «other legal positions» include
permissions, duties, prohibitions, powers, and
immunities, in different combinations and with
different contents for different rights.
Fields of law
• Rights
• The different kinds of rights can, with some good
will, be grouped under three headings, that is,
rights against a person (rights in personam or
claims), rights on an object (rights in rem or
property rights), and human or fundamental
rights.
The End
Administrative law
What Is Administrative Law
• In everyday life, many things are not organized by
private parties but by public authorities.
• To drive your car to school or university, you
must have a driving license.
• Public authorities (who deal with a country’s
administration) play a role in all these matters.
• In order to be able to perform their tasks, public
authorities (also described as administrative body
or executive) need money.
Administrative law
• In the nineteenth century, the tasks of the State
were mainly limited to maintaining law and order
within the country and defending its territory
against attacks from abroad.

• After World War II, the tasks of the

administration were no longer just defense and
the maintenance of public order but also the
provision of public goods and services.
Administrative law
• More recently, tasks like monitoring the quality of
foodstuffs and food production, as well as the
implementation of an immigration and
naturalization policy, have also been added to the
responsibilities of the administration.

• In all these fields, administrative bodies perform

public duties and exercise certain powers. To do
so, there have to be administrative authorities
and civil servants.
Administrative law
• When the administrative authorities use their
public powers, they can interfere with your rights
and interests.

• Therefore, there must be legal remedies available

to protect your rights and interests against the
possible abuses of the administration.
 Administrative Law
• Administrative Law is the branch of law
concerned with the regulation of governmental
power.

• It is intrinsically related to the constitutional

framework and political theory from which it has
developed.

• Principal objectives of administrative law

include the accountability of governmental
power and the resolution of grievances of those
affected by administrative decision-making.
Administrative Law
• Whilst some commentators would stress the issue
of control of administrative action, others are
interested in the way the administrative legal
system can improve the effectiveness of
administrative action.

• Administrative law is concerned with all relevant

institutional arrangements that regulate public
decision-making.

• The role of some of the most important of these

institutions is considered below.
 THE COURTS
• The theory that has dominated the
development of administrative law has been
the doctrine of ultra vires.

• This is based on the understanding that all

public powers stem from legislative (lawmaking)
authority and must be exercised within the
boundaries of those delegated powers.

• It follows that the role of the court is supervisory

and must not be concerned with the
correctness or merits of a decision that is made
by a public authority.
THE COURTS
• The key to the ultra vires theory is the
statutory interpretation by the courts of
powers delegated by Parliament.

• There has been increasing criticism of the

ultra vires theory as an explanation of
judicial decision-making in this area.

• Nevertheless, it is the theory that continues

to dominate judicial explanations of
decisions in this context.
 THE COURTS
 The grounds for judicial review are classified under
three broad headings: illegality, procedural
impropriety, and irrationality.

 Illegality: covers cases where a body has made an

error of law.

 Procedural impropriety: is a ground of procedural

attack available where a body is considered to
have acted in breach of natural justice.

 This may be because a person has been refused an

adequate hearing or because the decision-maker is
alleged to be biased.
 THE COURTS
• Irrationality: is intended as a safety net, allowing
challenge where a body is considered to have
acted perversely or in a way that no sensible
person would have in making decisions.

• The appropriate procedure to challenge a

public decision is an application for judicial
review.

• Judicial review has a number of important

safeguards for public authorities.
 THE COURTS
• An applicant must secure leave from a
judge and must adhere to strict time limits,
usually within three months from the date a
decision was made.

• The applicant must be considered to have a

sufficient interest in bringing the
proceedings, although the courts have
shown considerable flexibility in the
interpretation of this standing requirement.
Administrative law
• Administrative law is mainly about
– Administrative authorities and their civil
servants
– How administrative authorities get public
powers
– Procedural rules for the use of public powers
– Substantive requirements administrative
authorities have to take into account when
using their powers
– Objection procedures and judicial protection
against administrative action
Administrative law
• Government
• There are several levels of administrative decision
making.
• Besides national ministries, regional authorities of
different kinds and municipalities, as well as other
local bodies, fulfill important administrative tasks.
• The organization and structure of such
authorities, their competences, and their
dependence or independence from national
authorities differ considerably between countries.
Administrative law
• Various Instruments and Powers
to Protect the General Interest
• The legislator can empower the administrative
body to issue general rules, and it can also give
the administrative body the competence to grant
subsidies or permits and to take decisions in
individual cases.
• To avoid too high a concentration of power, the
competences of the government must be divided
between legislature, administration, and judiciary.
Administrative law
• According to Montesquieu’s doctrine of the Trias
Politica, the administrative (or executive) branch of
power should be separate from the legislative and
the judicial branches.
• In an ideal model of the democratic Trias Politica, the
legislator is chosen by and is responsible to the
people.
• The administration receives its powers only from the
legislature. It executes these powers and is
controlled by independent courts.
Administrative law
• The administration receives its powers only from the
legislature. It executes these powers and is controlled by
independent courts.
• Mainly, courts may control whether the administrative
body has acted within the confines of the competences
attributed to it and the rules imposed upon it by the
legislature.
• The executive is hence situated between the legislature,
from whose acts it derives all its competences, and the
judiciary, which controls whether the executive has
remained within the confines of the law.
Administrative law
• The issues that administrative law deals with can
be divided into two main categories.
• One category concerns the powers that
administrative authorities need in order to fulfill
their tasks and the conditions attached to such
powers.
• It concerns what is called the instrumental
function of administrative law.
Administrative law
• The other category concerns the safeguarding
function of administrative law.
• It deals with the protection of the rights and
interests of citizens and of private organizations
against the use of administrative power.
• These two functions of administrative law
correspond to two sets of questions that
administrative law has to answer.
Administrative law
• The first question in this connection is when an
administrative body has the power to act in a
particular matter.

• The second question in connection with the

instrumental function of administrative law
concerns which rules bind the administration if it
has the power to act in a particular matter.
Administrative law
• Public Powers: Rule of Law and Legality
Principle
• The essence of rule of law is always that the
administration is, at all times, bound by the law.
• The allocation and execution of powers are
regulated by law, and the administration must refrain
from violating the law, including the basic rights of
individuals.
• Legality Principle
• This principle requires that the administration’s
competence to act must have a basis in legislation.
Administrative law
• Public Powers: Rule of Law and Legality
Principle
• Administrative statutes hence provide for the
legality of administrative acts.

• In this way, the legislature endows the

administration with the necessary instruments to
put its policies in various areas of society into
effect and to serve the general interest
Administrative law
• The General Principles of Administrative
Law
• The principles that are common to most legal
systems are:
• 1. The impartiality principle
• 2. The right to be heard
• 3. The principle to state reasons
• 4. The prohibition of détournement de pouvoir
Administrative law
• 5. The equality principle
• 6. The principle of legal certainty
• 7. The principle that legitimate expectations
raised by the administration should be honored
• 8. The proportionality principle
Administrative law
• Administrative decisions should not negatively
affect the interest of people more than is
necessary to achieve the envisaged goal and
should not lead to a clearly disproportionate
result
• If the administration establishes a violation of the
rules on playing loud music in a bar it would be
disproportionate to close the bar immediately.
• It can give a warning, though, and take measures if
the violations continue.
Administrative law
• The executive has to respect fundamental rights and
must apply general principles of administrative law.

• However, administrative bodies are not infallible, and

it is possible that they act in an unlawful manner.

• This would, for instance, be the case if they use a

power for a purpose other than that for which it was
conferred, e.g., where a building permit is refused
because the mayor does not want a political enemy
to become his neighbor (détournement de pouvoir).
Conclusion
• Administrative law mainly deals with the
relationship between the executive and private
persons and/or organizations.
• In a democracy, an administrative body is strictly
bound by law. First, it needs powers to be
assigned to it by means of legislation.
• According to the rule of law (legality principle),
all competences of administrative bodies that
interfere with the legal position of individuals
must derive from legislation.
The End
Civil and Criminal
 Civil law
 Civil law Relating to ordinary citizens – concerns
wrongs between individuals hence termed as
private law.

 The term “civil law” is also employed to

distinguish those legal codes that deal with civil
relationships (such as citizenship, marriage,
divorce, and certain contractual
arrangements) from other codes such as those
dealing with criminal law.

 Criminal suspects are always prosecuted by the

government.
 Criminal law
• Criminal Law, branch of law that defines crimes
and fixes punishments for them.

• Substantive criminal law is always statutory.

• Also included in criminal law are rules and

procedures for preventing and investigating
crimes and prosecuting criminals, as well as the
regulations governing the constitution of courts,
the conduct of trials, the organization of police
forces, and the administration of penal
institutions.
 Criminal law
• In general, the criminal law of most modern
societies classifies crimes as offences against
the safety of the society; offences against
the administration of justice; offences
against the public welfare; offences against
property; and offences threatening the lives
or safety of people.

• Crimes are wrongdoings seen from the point

of view of the society in which they occur:
the convicted wrongdoer may be punished.
 Criminal law
• Torts include the same wrongdoings seen from
the point of view of their victim: the wrongdoer
may be ordered to pay compensation.

• Sins include the same wrongdoings seen from

the point of view of a faith; they call for
repentance and atonement.

• Thus, all three systems agree in condemning the

most common acts of wickedness—murder,
rape, robbery, violence, and theft, for example.
 Criminal law
• Once such acts occur, however, the secular
responses seem in practice weak.
• Relatively few crimes are solved, few criminals are
convicted. Almost never are the culprits made to
compensate their victims.
• Many societies attach great importance to a system
of criminal justice: that is, laws that define crimes
and provide the sanctions; procedural rules for
establishing guilt in a court; and a set of methods
and places of punishment and rehabilitation.
• Furthermore, the types of actions declared to be
criminal are, in all major matters, much the same
everywhere.
 Basic Premises (properties) of
Criminal Law
 Whatever their origin, most legal systems agree on
certain basic premises.
1. That no one can be guilty of a crime unless the
offence is defined as such beforehand, and the
conviction arrived at by a lawful procedure.
Inherent in this is the requirement of clarity in criminal
law, a prohibition against its retrospective effect,
and certain notions of “fair trial” and the availability
of legal representation.
2. That no one can be prosecuted twice for the same
act.
3. That deliberately criminal conduct can be punished
even if it did not succeed—it is a crime to attempt a
crime, or to conspire with others to commit one.
 Basic Premises (properties) of
4.
Criminal Law
The fourth common premise is harder to explain.
 The essential ingredients of a crime contain both a factual and a
mental element.
 The first covers certain (not involuntary) human conduct in certain
circumstances, and sometimes with certain consequences: for
example, stealing involves taking someone else’s property; on a
charge of homicide the prosecution must prove that the victim is
dead.
 The second means that it must normally be shown that the accused
deliberately or recklessly performed the forbidden act.
 The important point here is that, as a general principle, mere
carelessness (or stupidity) is not a crime calling for punishment, but at
worst a tort calling for compensation.

Example
Thus, if Mr. A makes off with Mr. B’s raincoat, honestly thinking it was
his and not even seeing the risk that it might not be, Mr. A is not a
thief: he did not deliberately or recklessly intend to take someone
else’s property.
 Of course if Mr. B’s name is marked inside it then he may have been
careless, in which case he may owe Mr. B compensation.
 However, Mr. A is not a criminal: stealing is dishonesty and Mr. A was
(though negligent) perfectly honest.
 To this general principle there are important exceptions: careless
driving is an obvious example and, where death is caused by gross
negligence, there may be a homicide charge below the level of
murder.
 Basic Premises (properties) of

Criminal Law
Furthermore, in many systems a number of (relatively slight) offences
may be committed without any mental culpability at all.
 Such offences are treated in this way due to, for instance, the need
to protect the public and the difficulty of proving any mental
element.
 Examples include the use of vehicles that are not roadworthy on a
public highway.
 Most systems accept that criminal liability is not to be imputed to
certain classes of people: for example, the very young or people with
severe mental illnesses.
 Systems also recognize a number of exculpating or mitigating
circumstances, such as self-defense, provocation, or suicide pacts.
Environmental Law
Environmental Law
• Over the past four decades,
‘‘environmental law’’ has evolved into a
legal system of statutes, regulations,
guidelines, requirements, policies, and case-
specific judicial and administrative
interpretations that address a wide-ranging
set of environmental issues and concerns
Environmental Law
• The environmental law: is an organized way of
using all of the laws in our legal system to
minimize, prevent, punish, or remedy the
consequences of actions which damage or
threaten the environment, public health, and
safety.
• Encompass the protection of public health and
workers’ safety in addition to the environment.
Environmental Law
• Environmental laws cover two broad areas of
law—natural resource development and
protection matters and other environmental laws
including those relating to the air, water, land,
chemical regulation, and general environmental
policy matters.
Common Law Environmental
Requirements: Torts
• Tort is the word used to denote a common law
civil wrong for which a court will provide a
remedy.
• This legal cause of action arises from the
existence of a generalized duty to avoid causing
harm to others, through acts of omission, as well
as of commission.
• Every adult person is obliged to fulfil a duty of
care for the personal and property rights of
others while engaged in daily life.
Torts
• Carelessness in exercising this
responsibility may give rise to a cause of
action (a lawsuit) by means of which the
injured party may seek restitution or the
recovery of damages
• It is clear that tort law is of major interest
in the environmental field as more and
more tort lawsuits are filed.
Torts
• The four types of torts most commonly encountered in
the environmental field are nuisance, trespass, negligence,
and strict liability.
Nuisance
• is defined as ‘‘that activity which arises from the
unreasonable, unwarrantable, or unlawful use by a person
of his own property, working an obstruction or injury to
the right of another or to the public, and producing such
material annoyance, inconvenience, and discomfort that
the law will presume resulting damage.
Torts
• There are two types of common law nuisance
claims: those based on a ‘‘public’’ nuisance and
those based on a ‘‘private’’ one.
• The general rule is that a person may use his land
or personal property in any manner he sees fit.
• However, this rule is subject to a limitation: The
owner must use his property in a reasonable
manner.
Torts
• A nuisance arises whenever a person uses his
property to cause material injury or annoyance
to a reasonable neighbour.
• In determining whether a given act constitutes a
nuisance, the court considers the nature of the
act itself
• E.g. Noise Nuisance
Torts
• Noise produced by human activities may often result in
an environmental problem.
• In order to constitute a nuisance in the legal sense, noise
must generally be of such a magnitude and intensity as to
cause actual or psychological discomfort to persons of
ordinary sensibilities.
• A number of other elements—such as odours, dust,
smoke and other airborne pollutants, water pollutants,
and hazardous substances—have also been held to be
nuisances
Trespass
• An action in trespass is distinguished from
a nuisance claim in that trespass is
categorized as an interference with the
possession of property, whereas a nuisance
claim is based on an interference with the
use and enjoyment of property.
Trespass
• Trespass to chattels is an injury to or
interference with the possession of
personal property, with or without the
exercise of personal force.
• This trespass involves the destruction of
personal property, taking from the
possession of another, or a refusal to
surrender possession.
Trespass
• Trespass to land is an unlawful, forcible
entry on another’s realty.
• An injury to the realty of another or an
interference with the possession, above or
below ground, is a trespass, regardless of
the condition of the land and regardless of
negligence.
Negligence
• Negligence is ‘‘the omission to do something
which a reasonable man, guided by those
ordinary considerations which ordinarily regulate
human affairs, would do, or the doing of
something which a reasonable and prudent man
would not do.
• Negligence is that part of the law of torts which
deals with acts not intended to inflict injury.
Negligence
• Persons harmed as a result of careless and
improper disposal or handling of hazardous
waste can recover for their losses under a
negligence cause of action.
Strict Liability and Dangerous
Substances
• Strict liability in tort is another common law
theory often applied by the courts in
environmental cases to remedy environmental
harm.
• Under this theory, liability for damages to
persons or property can be imposed without
requiring a showing of negligence.
Strict Liability and Dangerous
Substances
• A common example of an action based on strict
liability might involve an ultra hazardous activity
such as a landowner keeping a potentially
dangerous substance on his land which, if
permitted to escape, is certain to injure others.
• Under the doctrine of strict liability, the
landowner in such situations must make good the
damage caused by the escape of the substance,
regardless of negligence on his part.
Strict Liability and Dangerous
Substances
• if someone is engaged in an ultra
hazardous or dangerous activity for profit,
that party should bear the burden of
compensating others who are harmed by
its activities.
Laws That Enforce
Permits, Prohibitions,
and Penalties
Permits
• Distinctive aspect of environmental enforcement is its extensive
and effective use of permitting mechanisms.
• [T]he Permittee is authorized to discharge from outfall number
001 ‘‘x’’ litres per day of pollutant ‘‘y,’’ subject to the condition
that the discharge be monitored in accordance with specified
protocols and that periodic reports be provided.
Permits
• The permit fulfils this need by, in effect, establishing the ‘‘law’’
for a particular discharge or activity.
• The granting or withholding of permits, licenses, or other
authorizations is an important tool for controlling pollution.
• One major advantage of permits and licenses is that they
facilitate the enforcement of environmental procedures by
including in one document all of a facility’s pollution control
obligations with respect to one environmental medium such as
air or water.
Permits
• These permits or licenses are generally tied to an air or water
quality standard and may be subject to the fulfilment of specific
conditions, such as compliance with a code of practice,
selection of the location that minimizes environmental and
economic impacts, installation of a treatment plant or pollution
control equipment within a certain time period, or adoption of
other environmentally protective measures.
Permits
• Other advantages are that they may be withdrawn or
suspended according to the needs of the national economy or
other social interests, and they often require a fee that can be
used to cover the costs of the pollution control program.
• The use of permits and licenses normally involves regular
monitoring and facility reporting.
Tort Law
Introduction
• Sometimes events cause damage. For example, a
car accident causes bodily harm to the persons
involved and material harm to the owners of the
cars.
• This harm, from the legal point of view, is called
«damage».
• A soft drink that has stood too long in the sun
may explode and cause damage to bystanders
who are subsequently injured.
• Liability means responsibility.
Liability Law
• Liability law deals with the conditions under
which someone who has suffered damage can
claim compensation for this damage from
someone else.
• Examples of persons who might claim damages
(compensation of suffered damage) on the basis
of liability law are:
– The victim of a bar fight whose face had to be treated by a doctor
– The school girl who was the victim of slander on the Internet
– The student who had to re-sit his exam after other students had
illegally acquired copies before the exam was taken
Liability Law
• The main rule in liability law is that damage must be
borne by the person who suffered it in the first place.
• The main exception to this rule is when the damage
can be attributed to an act of somebody else
• The other person has caused the damage, and if he
did this intentionally or negligently, he must for that
reason compensate it.
• Strict liability exists when the law assumes there is
liability, but does not base it on a fault of the person
who must pay damages.
Liability Law
• Both in the case of fault liability and of strict
liability, the damage is shifted from the person
who suffered it to somebody else.
• Sometimes there is reason not to shift the
damage to one or more specific persons but
rather to distribute it over a larger part of
society.
• One reason for doing this is that the damage is
too big to be borne by individual persons.
Liability Law
• An example would be that car drivers collectively
create the risk of car accidents, and therefore it
makes sense to hold them collectively
responsible for compensating the damage that
results from the use of cars.
• Damage funds and (mandatory) insurance are
mechanisms that distribute the costs of the
damage over larger parts of society
• Tort law regulates the shift of damage from the
original bearer of the damage to somebody else.
Liability Law
• Liability Insurance is the type of insurance used
to cover the risk of incurring legal liability to pay
money damages.
• Such insurance guarantees financial protection to
an insured party who might be required to pay
damages resulting from negligence.
• The negligent act may be one that causes
personal injury, death, or property damage.
Liability
• Liability for negligence may result not only from the
conduct of the insured, but also from the conduct of
his or her agents and employees.
• Acts of negligence resulting in liability occur in
connection with a wide variety of private and
commercial activities, such as the operation of a
motor vehicle, the conduct of a business, and the
ownership or occupancy of property.
• Liability insurance sometimes is called third-party
insurance, because the insurance company protects
the insured against suit by a third party, that is, the
claimant.
 Liability
• A policy of liability insurance generally provides for
investigation, negotiations for private settlement of
claims, the defense of suits brought against the
insured and the payment of judgements or judicially
approved settlements up to the limits specified in
the policy.
• Ordinarily, the assistance and cooperation of the
insured is required in the defense against the claim.
• Since legal liability may arise in many situations,
liability policies usually do not assume all the risks
of liability.
Tort Law
• The expression «tort law» suggests that tort law
is a homogeneous field of law, with a few rules
regulating the compensation for all kinds of
damage.

• In reality tort law can be applied to very

heterogeneous topics, such as
– Bodily harm,
– Manslaughter,
– Insult,
Tort law
– Libel,
– Infringement of privacy,
– Trespassing land or home,
– Damage to goods,
– Violation of copyright,
– Unfair competition,
– Poor infrastructure,
– Unhealthy food, and so on.
The persons who commit torts are called
«tort-feasors».
Tort Law
• Torts are legal wrongs which give rise to an
obligation to compensate the injured party.
• Virtually all injuries caused by crimes can lead to a
tort liability.
• However, the reverse is not true; relatively few
torts are crimes.
• While some statutes impose tort reliability for
violations the courts primarily have determined
which wrongs require compensation.
Tort law
• Tort liabilities are significantly less clear
because the types of compensable legal
wrongs change with the times.

• The manufacturer of a drug, for example,

must evaluate its potential liability for
injuries defects in its product may cause.
Trial Procedures
Trial procedure
• Trial, legal hearing of a case in a court of law
• The trial is the full hearing that decides the case,
whether it is a criminal or civil matter.
• A similar procedure for both applies in most
English-speaking countries; the emphasis is on
adversarial procedures, and on oral rather than
written arguments and evidence.
• Similar court arrangements to those used in
England and Wales, which are described here,
exist in other countries.
 1. PRE-TRIAL PROCEDURES
• The preparation for the trial is largely out of the court’s hands,
but either party may seek interlocutory hearings in search of a
court order.
• These are most common in civil matters, where, for example,
in a process called discovery, the litigants (those who are party
to a court action) should reveal all the relevant documents
they hold to the other side; if a party to the trial refuses, the
court will usually order discovery.
• Interlocutory hearings often involve one side claiming that the
other has no case, and that a trial would be a waste of time
and expense.
• If this is successful the case will be struck out, or summary
judgment given for one side without trial.
1. PRE-TRIAL PROCEDURES
• Pre-trial hearings are less common in criminal matters, excluding regular
bail applications or renewals.
• However, a plea of guilty or not guilty may be taken some time before
the trial is due, to avoid any waste of the court’s time if the defendant
does plead guilty.
• The criminal courts do hold preliminary hearings if there is a legal
argument that can be taken before there is any evidence, and if third
parties are involved; for example, a preliminary hearing is appropriate
where an institution claims it is not obliged to reveal evidence in its
possession for reasons of confidentiality.
• Trials are enormously expensive: they are designed to be thorough
rather than cost-effective.
• They are often unavoidable in criminal cases, but civil matters are
usually settled at some point in the course of preparation for trial.
1. PRE-TRIAL PROCEDURES
• A number are settled literally at the door of the court, perhaps
because litigants are reminded of the stake for which they are
playing.
• Criminal trials cannot be compromised by agreement and the
payment of money in the same way, but plea bargaining is
common: the defendant agrees to plead guilty to a lesser charge
in return for the prosecution dropping the more serious charge.
• This is recognized and approved of, provided it does not amount
to improper pressure on the defendant to plead guilty.
• The law even provides for the defendant’s lawyer to seek an
indication from the judge privately on what the likely sentence
would be before advising on whether or not to accept the offer;
the usual question is whether a custodial sentence can be ruled
out.
 2. TRIAL DOCUMENTS
• Every trial has a document (or set of documents) that gives the case
its structure.
• Everything essential to the matter at issue should be in it and the
trial should not investigate matters that are not in it.
• In criminal trials the document is simple: an indictment in the
Crown Court and an information in the magistrates’ court.
• These merely describe the offence, giving as much detail as is
available of where, when, and in what manner it was committed
• The indictment is the more formal of the two, and everything
alleged in it must be proved.
• If a trial proceeds on an indictment with a fundamental error it will
be invalid, regardless of what is revealed in the course of the trial.
 2. TRIAL DOCUMENTS
• In civil actions, the set of documents is called the pleadings.
• The basic pleadings are a statement of claim from the plaintiff
(the person who brought the action to court) and a defense
from the defendant (the person against whom the action is
brought).
• These should summarize what is in dispute between the parties.
• There are further pleadings that may be used, such as a counter-
claim, when the defendant makes a claim in return against the
plaintiff, and a third-part notice, when the defendant says that the
plaintiff’s claim should be satisfied instead by a different person.
• In the County Courts pleadings can be made by filling in forms;
this is designed to make court action more straightforward for
people without professional legal assistance.
3. THE TRIBUNALS
• Each kind of case has a court dedicated to it.
• Civil cases go to the High Court or County Court,
depending on their value and complexity.
• Traditionally a jury sat in civil cases, but they are now
never used except in cases of defamation (libel and
slander) and malicious prosecution.
• In the United States civil cases are divided into two
classes: equity cases and actions at law, both of which are
usually tried by a judge sitting without a jury.
• In the United Kingdom, criminal cases go before
magistrates at the magistrates’ court, or the Crown
Court if they are serious.
 3. THE TRIBUNALS
• Magistrates decide questions of law and fact, assisted by a
professional clerk if the magistrate is a lay person.
• In the Crown Court and in civil cases with a jury, the judge
decides the law and declares it to the jury; the jury decides
on the facts by giving a verdict.
• There is no way of knowing whether members of the jury
have accepted the judge’s direction on the law, since their
deliberations are secret and it is an offence to reveal what
went on in the jury room.
• These arrangements have various ramifications.
• A jury trial may be preferred by the defense in criminal
trials when there is disputed evidence, because the jury will
not hear the evidence if the judge decides to exclude it.
 3. THE TRIBUNALS
• Magistrates will usually have to be told what the evidence is
when they decide whether to admit it; if they exclude it, they
should then attempt to put it out of their minds, but this is a
difficult task and they may be influenced against the defendant.
• In civil trials, the fact that a judge hears the case alone may make
an appeal easier.
• The judge gives reasons for the decision and will explain why he
or she reached factual conclusions.
• While appeal courts will not overturn findings of pure fact (for
example, whether a witness is believable) they will listen to
arguments on the factual conclusions drawn from those findings.
• That cannot happen with a jury or magistrates, neither of whom
gives reasons.
 4. TRIAL PROCEDURE
• Civil and criminal trials follow roughly the same course. One
party opens the case:
• In criminal matters this is always the prosecution;
• In civil matters it is usually the plaintiff (prosecution),
• But if the defense is the only party seeking to prove anything, it
will open.
• In either case it is usual for the party’s lawyer to make a speech
to the tribunal outlining the case.
• Throughout the trial, the actual parties, if legally represented, are
rarely more than spectators, and the case is run by their lawyers:
• They will usually only speak in court as witnesses during the trial.
THE PROCEDURE
• I. After the opening speech the prosecution calls
witnesses, each of whom makes an oath to tell the truth,
or an affirmation if he or she objects to religious oaths;
breach of this is the essence of the offence of perjury, of
lying in court.
• II.The witness then goes through his or her evidence, in
answer to questions from the prosecution, in the
examination-in-chief.
• III. The prosecution may not ask leading questions, that is,
questions that indicate to the witness the answer that is
expected, unless the matter is not disputed between the
parties, or in order to elicit a denial from the witness.
 THE PROCEDURE
• IV. Such rules are meant to ensure that the witness’s evidence is
not indirectly supplied by the lawyer asking the questions.
• V. After the examination-in-chief is complete, the defense may
cross-examine the witness.
• VI. The cross-examiner is permitted leading questions, and they
are widely used.
• VII. The object of cross-examination is to test the evidence given,
and an experienced practitioner seeks to do several things: to
destroy or weaken the credibility of the adverse evidence and of
the witness; to suggest ways in which the evidence given may be
favorable to the defense; and to bring out additional evidence
that is in itself favorable to the defense. The prosecution then has
the opportunity to repair any damage done in re-examination,
but not to produce new evidence.
 THE PROCEDURE
• VIII. When all the prosecution witnesses have given evidence the
prosecution case is complete. In criminal trials the defense will
often make a legal submission to the judge at this point that
there is no case to answer: this is a claim that the evidence is so
inadequate that the case could not possibly be proved. If the
submission is successful, the case will be stopped: in a jury trial
the judge will direct the jury to acquit. If it is unsuccessful, the
defense puts forward its case.
• IX. The defense may make an opening speech if its case is
complicated and may benefit from an outline at the start. It then
calls witnesses, who are examined, cross-examined, and re-
examined in the same way, except that the roles of the two sides
are reversed. Often, especially in criminal trials, the defense will
call no evidence, but instead try to show in the speeches that the
prosecution case is not proved. It may do this even if a
submission of no case to answer has already been rejected.
 THE PROCEDURE
• X. After the defense has had the opportunity to call witnesses, each side
makes speeches to the tribunal. These summarize the evidence and
attempt to present its case in the best light possible.
• XI. In civil cases the prosecution usually has the last word; in criminal
cases, the defendant always has the last say.
• XII. When there is a jury, the judge will then sum up to theme: this
should mean an impartial description of the evidence they have heard,
and a definitive explanation of the relevant law.
• XIII. In criminal cases the judge should tell the jury that the prosecution
must prove its case beyond reasonable doubt: the tribunal must be sure
that the defendant is guilty.
• XIV. Civil cases are decided on the balance of probabilities: an allegation
is proved if the tribunal thinks it more likely to be true than not.
 THE PROCEDURE
• XV. After the summing-up, the jury members retire to consider
their verdict, and do not separate until they come to a
conclusion or are certain that they cannot agree. Formerly, a
jury’s verdict had to be unanimous; in the United Kingdom in the
1960s, allegations that single members of juries had been bribed
or threatened to refuse to agree to a guilty verdict led to the
introduction of majority verdicts. A jury verdict by a majority of
ten to two is now valid. If the jury members cannot agree, they
will usually be discharged, and the case will be reheard before a
new jury.
• XVI. When there is no jury, the tribunal—judge or magistrates—
will give its verdict (in criminal cases) or judgment (in civil cases)
often after retiring for consideration for some time. In more
complex civil matters, a judge may postpone giving judgment for
days or weeks, and at an appointed time produce a judgment
written in the interim.
 THE PROCEDURE
• XVII. In criminal trials the judge then proceeds to sentencing,
after a speech from the defense in mitigation. In civil trials the
judge will make an order embodying the judgment, often asking
lawyers on both sides to draft the order. Legal costs are usually
awarded to the winning party, but there are penalties for
unreasonable behavior in the course of litigation. Costs are also
“taxed”, an assessment by a court officer, and this often means
the winning party will get less in costs than is owed to his or her
legal advisers.
• XVIII. The conclusion of a trial should be the final determination
of an issue. Indeed, a defendant may not be put in double
jeopardy by being tried again for the same crime. However, the
losing party may appeal to a court of appeal, which will consider
the course of the trial if the winner seeks assistance from the law
in enforcing the judgment of the court in his or her favor.
The End
QUESTIONS????