Mechanisms in environmental law
“Modern Regulatory Regimes Have Predominantly Supplanted The Common Law As The Main Mechanism For Environmental Protection. The Challenges Posed By Environmental Degradation, Including The Diffuse Sourcing Of Harms And Widespread Spatial And Temporal Dispersal, Have Compelled Collective Responses. It Has Also Been Necessary To Develop Mechanisms Of Regulatory Control In Step With Greater Awareness Of The Technical Complexities And Often Uncertain Nature And Implications Of Risk.” (Stallworthy, 2008)
In order to understand the role of both mechanisms in Environmental law it is first necessary to understand what is meant by Environmental law. This of course raises its own issues, with no clear definition, but instead there is much contestation as to where the boundaries of the subject are defined (Plater, 1999). One such difficulty lays in defining Environmental law, or specifically what is the environment in this context. The environment by vague definition is considered a relative concept and therefore it requires context for definition (Barry, 1999) In the context of environmental law Bell and McGillivray (2008) outline it as: the physical surroundings that are common to us all, which include air, space, waters, land, plants and wildlife.
The development of environmental law can be traced back to a rather selfish origin. Its initial concern was the protection of private and common property covered by the laws of tort in nuisance, negligence or trespass (Stallworthy, 2003). Here its scope was limited to protection of private interests and not those of the environment. The limitations of the pollution control or environmental “protection” through torts were shown during the industrial revolution where pollution caused widespread damage and individual reactive enforcement was insufficient (Lee, 2003). A series of enforcements followed addressing particular pollution issues and treating them as statutory nuisances. Furthermore although change was brought about, these laws only provided protection against property. The protection of the unowned environment and resource depletion or degradation are outside the protection of tort law (Stallworthy, 2003) as is the ability to protect humans from cumulative health problems or other environmental threats from pollutants (Rabin, 1987)
The Role Of The Common Law
Common law although limited has its uses, its ultimate purpose is the protection of private property rights and this often affords some environmental protection. The common law may be used to protect property from environmental damage, protect humans from environmental injury, to provide compensation for damage to property, compensation for injury caused by pollution, challenge the decision of a regulator or to mount a private prosecutor against a polluter (Wolf and Stanley, 2003). The function of the law of torts is to provide remedies on behalf of a person who has suffered wrongs either to themselves or property Wolf and Stanley, 2003). Conversely command and control mechanisms i.e modern regulatory mechanisms regulate pollution on a larger scale and cater for the protection of human health and the environment whilst also allowing for competitive industry. Where no statutory regulation exists a solution may be attempted through common law. Cambridge water Co Ltd v Eastern Counties Leather plc (1994) is one of the most important cases with regards to common law protection and sets out rules to follow (Wolf and Stanley, 2003). The case arose when the plaintiff; Cambridge Water Company purchased a piece of land formerly used as a paper mill which had in its possession a license to abstract water. The plaintiff utilized this license in 1970 but unknown to them was the fact that the water had been contaminated. The contamination arose from leached solvents from a tannery operated by Eastern Counties leather. The spillages themselves were historic and had occurred from 1950-1976.
When tighter regulations were enforced through EC directive 80/778 for drinking water standards for human consumption , the levels of of perchlorethayne in the water extracted exceeded regulatory requirements . The high court dismissed the original action of nuisance and negligence based on that the damage could not be foreseen. This was however overturned by the court of appeal awarding £1 million in damages. Eastern Counties Leather plc successfully appealed to the House of Lords were they were unanimously not found liable , on the basis of a lack of foreseeability with regards to strict liability as outlined in Rylands V. Fletcher. Attention must be drawn to the fact had the plaintiffs been successful, the water would remain contaminated as they would have installed another borehole from the financial damages recovered. The plaintiffs would have been able to continue their extraction of water had it not been for the introduction of stricter regulations which was a function of their reason to extract which for other uses would have had no affect (Steele, 1995). Despite what may be seen as failure of common law, a modern regulatory mechanism did ensure the cleanup of the aquifeier, perhaps the showing the integrated role that both mechanisms may play. However further complications arose as to who was liable for the cleanup costs (Bell and McGillivray, 2008)
Modern Regulatory Mechanisms
Modern regulatory control mechanisms are often referred to as command and control regimes (Stallworthy, 2003). These mechanisms are based on legislation i.e. acts of parliament which create a broad framework for the control of various pollutants. The mechanism can be relatively specific or far reaching. For instance the water resources act of 1991 simply concerned with water, or IPC under EPA 1990 which regulates discharges from polluting activities into air, water and land (Wolf and Stanley, 2003).
The regimes are enforced by regulating bodies; in the UK these are primarily the Environment agency, local authorities as well as water and sewage companies . The operation of command and control mechanisms can be simplified to” you must” and “you must not” as in command and control respectively (Bell and McGillivray, 2008) . The main command and control mechanism in the UK, integrated pollution prevention and control (IPCC) statutes require persons or businesses polluting to be in possession of a license to authorise such discharge or to simply operate. Not all mechanisms require a license as with Statutory nuisances which are examined by the local authority and they are required to serve those responsible. In command and control the licenses reserve the right to change based on stricter regulation. The license conditions are based on environmental standards not being exceeded or a source based standard for that particular process, or even extended to product standards. http://www.opsi.gov.uk/si/si2000/20001973.htm .The best example is the statutory requirement for catalytic converters on motor vehicles and lead free petrol (Wolf and Stanley, 2003). Failure to meet or even apply for a license whether through ignorance of a remedial request or through emission excedences leaves the regulator with the discretion of filing a criminal law offence or offering consultation to ultimately enforce the law (Jewell and Steele 1996). These command and control mechanisms are based on the polluter pays principles and through this regulation inequalities should be reduced (Cane, 1991) It also extends beyond current threats in pollution i.e it incorporotaes the precautionary principle for diffuse and latent pollution bypassing requirements of foreseeability or causation (Jewell and Steele 1996)
Wolf and Stanley consider the that the role of the common law is intertwined with that of modern mechanisms in so for that common law is a component of the patchwork of controls that exist. The common law is Judge made law, i.e developed through judiciary cases for this reason it often has ad hoc approach (Stallworthy, 2008). The main remedy of common law through torts is to seek damages and Judges are hesitant for developing the common law towards environmental concerns (Stallworthy, 2003). Again the common law is concerned with the protection of private rights, i.e the rights of humans, and to date there is no such mechanism or protection afforded to any components of the environment (Stone, 1985). And it is by these actions that only private remedies are sought.
Command and control mechanisms allow for pollution control, based on precise, monitorble conditions, this is a contrast to the bias imprecise standards associated with common law which lacks any real strict numerical limits. In the common law it is up to the courts for instance to decide whether the activities of the defendarnshould be considered unreasonable whilst balancing what should be tolerated by a reasonable neighbour (Wolf and Stanley)
The biggest disadvantage of common law and perhaps one of the reasons for its perceived decline in environmental agenda is that it is a reactive tool, i.e. it cannot prevent damage, of course this is again related to its original purpose of protecting land, whereby any compensation claimed does not have to be appropriated to the environmental harm caused (Stallwort or something) . The issue of flexibility can lead to strength or failure but its un-reliance on strict standards allows what is reasonable to applied, i.e using the common law what only this principle exists to define what is an acceptable level of pollution, with this is the selfish element that action is only brought on a personal need basis (Wolf and Stanley) Conversely the modern control mechanisms contain expressed standards and they provide clear standards of environmental behaviour, (and)through this form of legislation they can also provide guidance and bring about reform (Jewell and steele, 1995).
Another important recent limitation to the use of common law was that a nuisance must affect the land belonging to the claimant or in which the claimant has a propriety interest. This issue was made law in perhaps the most notable example of a group action in private nuisance regarding the disruption of TV signals. In Hunter v Canary Wharf Ltd (1997 AC 677)
The facts of the case where that residents sued on action of nuisance for the disruption of TV signals by the construction of (the)canary wharf tower. Not only was it ruled not (to) be a nuisance but the courts also established this principle which has far reaching principles in so far as limiting individuals or groups without a proprietary interest in land to bring an action in nuisance and as such, an action in which the actual land owner shows no interest cannot be auctioned (John Wightman). The issue of remoteness is something else on which the torts of nuisance and negligence fall short. The need for foreseeability was introduced in Cambridge water Co Ltd v Eastern Counties Leather plc (1994)whereby foreseeability of pollution is drawn from state of knowledge at the time of pollution, (which)this has bearing on historic pollution cases.
In what may seem like an absolute decision is regards to the supplantation of the common law,(fullstop) the common law does have its role to play, particularly for environmental pressure groups, individuals affected by environmental damage under which no statutory legislation provides, or if an act of pollution has taken place before any laws exist. Stallworthy (2008) considers genetically modified crops as a possible area of attention under this provision. As no laws currently exist and the pace of change is considerable, the common law will serve as the main form of regulation or compensation, particularly with claims in the order of organic crop contamination. It is in this case that Stallworthy (2008) presents a contrast to his own statement (in topic), whilst command and control mechanisms take into account the changing nature of pollution, there is a lag time for this policy to catch up with technological developments. This lag or gap provides the common law a essential position in Environmental law. Further to this the common law can sometimes play a role where statutory regulation fails such as in the case of National rivers Authority (NRA) and Anglers Co-operative association v Clarke (1994). In this case the regulating authority at the time; the national rivers authority (NRA) attempted to prosecute a pig farmer for the release of three million gallons of slurry into a 75km stretch of river in the river sapiston. The action of this release had caused the destruction of a fishery. The NRA originally attempted to prosecute Mr Clarke under two sections of the Control of pollution act of 1974 and the salmon and freshwater fisheries act of 1975. Under this the court of appeal ruled that the farmer could not be held liable as his knowledge of the discharge could not be proven. The statutory authority in conjunction with the anglers association initiated a civil action . This time it succeeded and the NRA was eventually awarded £90,000 to cover its legal costs and the cost of fish restocking. The anglers association was also awarded £8400 and the local angling club £8400. Whilst the common law allowed some measure of justice, statutory mechanisms have evolved so far as that (the)IPCC now would hold that offence liable without causation as simply discharging without a license. So whilst it demonstrates the role the common law can play, it is arguably one that is no longer needed in this context.
The risks involved in both regulatory regimes and common law regulation play a large role in their perceived regulation of environmental harms. If economic deterrence theory is considered it would follow that those taking risk. i.e polluting will refrain from doing so if the harms are more costly than the cost of prevention(shroeder). This is often were the common law falls short. Conversely Strict liability(inverted commas) imposes action or rather compliance than face prosecution but it depends whether the policy is based on cost benefit measures or simply measures to protect human health, as this could determine the effectiveness of enforcement.
If the success rate via tort regulation in regards to risking pollution and proving guilt is considered the risks are often in favour of the defendant (shroeder). The changing nature of pollutants have highlighted further shortcomings of tort law. To understand this one must examine the origin and effects of pollutants. For instance a concentrated pollutant with a concentrated effect can easily show causation and harm; for instancenot needed trespass of pollutant onto private land. Then consider a concentrated pollutant from a chimney stack but instead it produces diffuse environmental harm, here the chain of causation and harm is difficult to establish. In addition situations in which this occurs may result in harm being distributed over a large group of individuals, yet the damage incurred is below that which is actionable. The aggregated damage may be significant but due to individual limitations it is un-actionable (shroeder). The pollutant ozone can be used as an example. The production of ozone is dependent on other primary pollutants in the presence of ultra violet rays, originating from local and even transboundary sources, therefore consider the task for a plaintiff in bringing defendants to action over ozone related asthma.
The Drive From Private Harm To Collective Response.
Evolution of statutory regulation is matched together with growing concern from individuals to bring about a collective response,(fullstop) Stallworthy (2008) suggests that it operates as a mechanism to bring about concerns of public interest. Its strengths lay in the failures of common law whereby it can address potential environmental risks without the restriction of causation and harm. Perhaps one risk which galvanised change was mass realization of substances which threatened the ozone layer. The Montreal agreement; a modern regulatory regime created as an international agreement arose from a collective concern regarding damage to the ozone layer. The protocol is viewed as a success and the regulations have been tightened to include all ozone depleting compounds. The success is marked by a drastic reduction in 20 years (Fenger, 2009). Through this collective response, collective benefit was achieved.
Modern regulatory regimes which impose standard settings are based on cost benefit analysis together with risk assessment. However the standards that are set involve some level of risk, a number, a fraction below a trigger value may cause harm but it is at this point which it is legally unactionable. The difficulty or rather risk in setting standards is that economists, scientists, statisticians and the general public perceive different environmental threats and thus there is controversy and debate concerning where these values should lay and what should dictate change (RCEP,1998) This mechanism does take account of the risk and when standards are made, broader uncertainties not covered by scientific evidence are considered, as well as possible risks and limitations within the standards themselves. For example the geographic location of many risks . Conversely the common law offers no remedy to the threats placed by great risk and relies simply on judgement and the interpretation of the law.