#17073 - Oxford Bcl Comparative And Global Environmental Law Notes - Comparative and Global Environmental Law

COMPARATIVE AND GLOBAL ENVIRONMENTAL LAW

• How you frame environmental law will determine whether you think a solution is ideal – eg if you frame it as a market problem of externalities, then you will think market-based solutions are ideal.

  • We need to always keep in mind what we are fighting for constantly remind ourselves what environmental law at its largest and best tries to do (Heinzerling).

• Law frames environmental problems primarily through legislation, but also judicial framing (Fisher).

  • Behind every environmental law is a theory of society – THUS legislative development of environmental law isn’t linear (Fisher).

• Environmental law scholarship is a normative exercise must always consider whether what is being described or discussed is what the law is or what the writer would like it to be (Fisher, Lange and Scotford).

• Yang and Percival argue that global law is emerging amalgam of national and international environmental law and their interactions.

  • Yang and Percival describe global environmental as not just borrowing of environmental legal principles (eg legal transplants) between national and international systems or between national systems – BUT as an emerging set of independent and convergent legal principles.

• Yang and Percival argue that environmental treaties have contributed to the global acceptance and spread of international environmental legal norms and has entrenched environmental norms (some aspirational and some legally binding).

  • Process of creating implementing legislation treaties has helped embed globally agreed-upon values and principles in national regulatory systems (Yang and Percival).

• BUT – while environmental law might be more global can’t think about in isolation of legal culture.

  • Obvious variations among national and local environmental regulatory systems – systems often rooted in a country’s particular cultural and social mores or political idiosyncrasies – THUS they are likely to persist despite greater regulatory harmonisation (Yang and Percival).

• Transnational law is regulations that have effects beyond national boundaries (Koh).

  • Fisher argues that there is little coherent understanding of what transnational environment law is and we need to distinguish between wishful thinking and empirical analysis.

    • Needs a distinction drawn between is and ought in transnational EL discourse (Fisher).

  • Carlane and Faber argue that framing the analysis in terms of transnational environmental law may improve understanding of how these systems come into being, exist, interact and evolve.

  • Heyvaert argues that transnational environmental law calls into question the accuracy of representing the legal system as a hierarchically organised, regimented and fully articulated structure one of transnational law’s chief functions is to enable the peaceful coexistence of heterarchical normative regimes.

  • Transnational environmental law is not simply international environmental law with a sexier title rather, it breaks the frame – by forcing scholars not to privilege one legal culture over another AND also to take legal culture seriously while paradoxically transcending the boundaries of legal cultures (Fisher).

• Transnational law overlaps with polycentricity recognises the multilevel governance context in which contemporary environmental law unfolds (Carlane and Faber).

• National schemes that act as a model rule for horizontal application particularly in demand (Bogojevic).

• Deliberate copying and adaptation of significant statutes or particular doctrines of law (Watson).

  • Integration of foreign norms into host systems (Boute).

  • Wholesale importation by countries with less developed legal systems attempt to “catch-up” with more sophisticated systems (Yang and Percival).

• Debate re impact of legal transplant on environmental protection in host legal system (Boute):

1. ON ONE HAND – Yang and Percival argue that importation of foreign environmental law tools can assist law reform in other countries.

2. ON THE OTHER HAND – Bogojevic questions the possibility of successful transplantation without consideration of social, political and economic forces underlying development of EL.

• Even if legal systems appear to share common elements – Watson argues that it’s impossible to set up a theory of general legal development applicable to all or many unrelated societies.

  • Cf. Yang and Percival argue that the endeavour of global environmental law doesn’t attempt to set out a theory of general legal development – BUT does break with Watson’s premise that legal systems and cultures can’t share fundamental similarities.

    • Legal transplants must be domesticated to fit into their new context or the transplant would run the risk of being rejected knowledge of both the implementing law and the hosting legal system is required (Bogojevic).

    • When assessing whether a law may be transplanted to another system need to look at how closely the law is linked with the foreign legal structure (Boute) – eg EU ETS as an EU-specific legal construction (Bogojevic).

    • THUS – for an effective understanding of global EL need a thorough understanding of what is either analogous or different between systems (Yang and Percival).

• Arup and Zhang highlight need for regulators to learn by doing in their approach to the regulation of carbon markets when creating new markets, regulation is likely to be exploratory and experimental.

  • Ostrom argues that polycentric systems have considerable advantages over other governance systems because of ability to learn and adapt better strategies.

    • Participants in polycentric systems have advantage of using local knowledge and learning from others also engaged in trial-and-error learning processes (Ostrom).

• Yang and Percival argue that over time global environmental law principles will be able to provide a valuable toolbox with experiences and examples of many environmental regulatory systems.

  • Yang and Percival notes that there has been a large amount of interest in China to learn from foreign experience with environmental regulation – eg EU ETS (Boute).

• Law and the problems it is regulating are co-produced (Fisher; Jasanoff).

  • Co-production is a process of framing the ways in which we known and represent the world are inseparable from the ways in which we choose to live in it (Jasanoff) - THUS environmental problems can be framed in different ways by different legal cultures (Fisher).

• Environmental problems are collective problems and there is a shared interest in resolving.

• Environmental problems require stretching the legal imagination (Fisher) creating frames of action in hot situations of polycentricity, scientific uncertainty and normative conflict – the object of regulation is not fixed and law plays important role in identifying and defining problem (Fisher).

  • Controversies which indicate the absence of a stabilised knowledge base usually involve variety of actors (Callon) identifying environmental law as hot emphasises that environmental law issues aren’t just controversial, but the controversies are structural and foundational (Fisher).

• Premise that environmental law is above legal culture fails to recognise the importance of legal culture.

  • Law is not simply a set of rules it is a cultural phenomenon that is not easily delineated from other cultural phenomena – as it is formed by them (Fisher, Lange and Scotford).

• The concept of legal culture can help reveal the broader historical and societal context that shapes the interpretation and development of law (Webber).

• Rome Treaty silent on the environment – BUT with essential objective of the “constant improvement of the living and working conditions of peoples” in 1985 – in ABDHU CJEU recognised environmental protection as part of the essential objective (before explicit introduction of environmental title).

• SEA Treaty in 1986 (predecessor to TEU and TFEU) with the aim of creating a single EU market included the first explicit introduction of environmental protection into the treaties.

• Lisbon Treaty in 2007 created TEU and TFEU follow economic rationale while seeking to protect high social and environmental standards (Webber).

  • Vedder argues that Lisbon Treaty doesn’t go beyond confirming an existing reality (no changes from SEA Treaty) disappointing for environment as...