Environmental Principles and the Evolution of Environmental Law

by Eloise Scotford

Overview

Environmental principles - from the polluter pays and precautionary principles to the principles of integration and sustainability - proliferate in domestic and international legal and policy discourse, reflecting key goals of environmental protection and sustainable development on which there is apparent political consensus. Environmental principles also have a high profile in environmental law, beyond their popularity as policy and political concepts, as ideas that might unify the subject and provide it with conceptual foundations or boost its delivery of environmental outcomes. However, environmental principles are elusive legal concepts.

This book deepens the legal understanding of environmental principles in light of recent legal developments. It analyses the increasing legal effects of environmental principles in different jurisdictions and demonstrates how they are shaping and revealing innovative and evolving bodies of environmental law. This analysis is a step forward in understanding a key feature of modern environmental law and presents a robust methodology for dealing with novel legal concepts in the subject. It also makes a contribution to environmental policy debates and discussions internationally that rely heavily on environmental principles, including their supposed legal effects.

Product Details

ISBN-13:	9781509930104
Publisher:	Bloomsbury Academic
Publication date:	06/27/2019
Pages:	320
Product dimensions:	6.14(w) x 9.21(h) x 0.67(d)

About the Author

Dr Eloise Scotford is a Senior Lecturer at The Dickson Poon School of Law, King's College London, where she teaches and researches in environmental law.

Table of Contents

Acknowledgements ix

Table of Cases xvii

Table of Legislation xxxi

1 Principles Principles Everywhere: Making Sense of Environmental Principles as Legal Concepts 1

I Introduction 1

II Environmental Principles and Their High Profile in Environmental Law 5

III Methodology and Scope 11

A Localising the Focus 12

i Why Jurisdictions? 14

ii Why Courts? Why These Courts? 16

B An 'Extended' Comparative Framework: Environmental Principles Reflected in Legal Cultures 18

C Understanding 'Legal' Roles through Doctrinal Developments 21

D Mapping Environmental Principles by Judicial Technique 23

IV Conclusion 25

2 Environmental Principles and Environmental Law 27

I Introduction 27

II Why So Much Principle? 30

A Foundations for the Legal Study of Environmental Principles: An Historical Collision of Policy, Environmental Regulation and Legal Scholarship 31

B Environmental Principles as Non-legal Responses to Environmental Issues 34

C Environmental Principles as Legal Solutions to Environmental Problems 37

D Environmental Principles as Solutions to Legal Problems in Environmental Law 40

i Legitimacy Claim 1: Environmental Law as a Conventional Legal Subject 41

ii Legitimacy Claim 2: Environmental Principles Overcome Methodological Problems in Environmental Law 46

E Environmental Principles Constitute or Represent Environmental Law as a New Legal Order 48

III Limitations in Appraising Environmental Principles Legally 51

A Environmental Principles as Universal Legal Concepts 52

i Absence of Universal Legal Identity Conceptually 53

ii Absence of Universal Legal Identity Historically 55

iii Absence of Universal Legal Identity in Comparative Law Terms 56

iv Conclusion 58

B Application of Legal Concepts and Methodologies from Other Legal Subjects 59

C An Instrumental and Coherent View of Environmental Law 63

IV Conclusion 64

3 Legal Contours of Environmental Principles Across Jurisdictions 66

I Introduction 66

II Environmental Principles in Public International Law 68

A The Legal Prominence of Environmental Principles in International Law 68

B The Legal Ambiguity of Environmental Principles in International Law 76

III Environmental Principles in EU Law 84

A Early History of Environmental Principles in EU Law 85

B Definitional Ambiguity in the EU Context 88

C The EU Principle of Sustainable Development: Reconnecting to the International Sphere 91

D Conclusion 95

IV Environmental Principles in NSW Law 95

A ESD Principles as Policymaking Tools in the National ESD Process 99

B Intergovernmentalism: Supporting the Political Rise of ESD Principles 101

C Historical Development of ESD Principles in NSW Law: Innovative NSWLEC Reasoning and Legislative Proliferation 106

i Judicial Incorporation of ESD Principles in NSW Law 106

ii Legislative Incorporation of ESD Principles in NSW Law 110

V Conclusion 114

4 Environmental Principles in European Union Case Law 116

I Introduction 116

II The Jurisdiction and Institutional Identity of EU Courts: Reasoning with Environmental Principles in EU Legal Culture 121

A The Constitutional Role and Progressive Nature of the CJEU 121

B The CJEU's Jurisdiction 122

C Diversity of EU Case Law Involving Environmental Principles 126

D Mapping Environmental Principles: Treatment Categories Shaped by EU Legal Culture 128

III Policy Cases 132

A Principles as Policy Background 135

B Principles of EU Environmental Competence-Unexercised Discretion 136

C Principles of EU Environmental Competence-Exercised but Unchallenged Discretion 137

D Purported Exercises of EU Environmental Competence: Member State Derogation under Articles 114(4) and (5) TFEU 142

E Integration Principle: Breaking Down the Barrier of Policy Cases? 144

F Conclusion 146

IV Interpretive Cases 147

A Interpreting EU Environmental Competence in a Narrow Sense: Environmental Principles under Title XX TFEU 148

B Interpreting EU Environmental Competence More Broadly: Environmental Principles Beyond Title XX TFEU 154

i A 'High Level of Protection' and the Precautionary Principle 154

ii The Expansive Reach of the Integration Principle 157

C Conclusion 159

V Informing Legal Test Cases: Reviewing the Boundaries and Exercise of EU Environmental Competence 161

A Legal Basis Cases 162

B Exercise of EU Environmental Competence Cases 164

i Early Cases of Informing Review Tests: Expanding EU Environmental Competence, Defining Precaution and Embracing More Principles 166

ii Pfizer 171

iii The Precautionary Principle Post-Pfizer in the CFI/General Court: The Evolution of EU Administrative Law 176

iv The Precautionary Principle Post-Pfizer in the Court of Justice: Less Intensive Review of EU Institutions 184

v Expanding the Doctrinal Reach of Environmental Principles: Informing the Review of Member State Discretion under Article 34 TFEU 187

C Conclusion 190

VI Principle of Sustainable Development 192

A Sustainable Development: Definitional and Doctrinal Uncertainty in EU Law 193

B The Transnational Influence of Sustainable Development in EU Law: Legal Complexity and Potential 196

VII Conclusion 198

5 Principles of Ecologically Sustainable Development in the New South Wales Land and Environment Court 202

I Introduction 202

II The NSW Land and Environment Court: A Unique and Doctrinally Novel Legal Setting 206

A History of the Court: A One-stop Shop for NSW Environmental Law 208

i The Unlikely Construction of a Land and Environment Court 208

ii A Court of Amalgamated Jurisdiction 211

iii A Mandate to Develop Environmental Law 212

B The NSWLEC's Fragmented Jurisdiction, Powers and Progressive ESD Agenda: A Sum Greater than Its Parts 212

C Open and Novel Administrative Law Doctrine 217

D Conclusion 223

III Mapping the ESD Case Law 224

A ESD Principles as Legally Relevant Considerations in Determining Planning Consent Decisions under Section 79C EPA Act 228

B ESD Principles as Legally Relevant Considerations Informing Decision-making Processes under the EPA Act 232

i Structuring Precautionary Decision-making: Telstra Corporation Ltd v Hornsby Shire Council 233

ii ESD Principles and Impact Assessment Screening: Informing Jurisdictional Facts 238

iii Planning Decision-making for Major Projects and ESD Principles 240

C ESD Principles as Legally Relevant Considerations under Legislation that 'Adopts' Principles: ESD Beyond the EPA Act 250

D ESD Principles Legally Relevant Considerations Beyond Legislative Frameworks Altogether 252

E ESD Principles as Legally Relevant Considerations in All Aspects of NSWLEC Jurisdiction 254

IV Conclusion 256

6 Conclusions 260

I Environmental Principles and Doctrinal Evolution 260

II Environmental Principles in Environmental Law Scholarship 263

Index 267

Editorial Reviews

"... this book is a rigorously analytical and intellectually inspiring piece of scholarship. It combines fine-grained critique with big picture commentary to challenge dominant or default views of environmental principles and environmental law more broadly. The book will be of interest not only to scholars and practitioners of environmental law but also to those concerned with public administration and comparative constitutionalism." --The Modern Law Review

"... the book will be of considerable assistance for academics and practitioners of environmental law wanting to understand how certain specific principles have been articulated in the EU and NSW." --Chinese Journal of Environmental Law

From the Publisher