ENVIRONMENTAL LAW

Environmental Law



Environmental Law

Introduction

The twenty-first century finds environmental law in transition. This is perhaps unsurprising: our environmental impacts and environmental knowledge are never static and continually invite new solutions. In fact, until relatively recently environmental law was ill-defined: indeed it was often not treated as a subject in its own right. Today the importance of environmental law is well recognised beyond the legal community alone. Environmental law is seen as relevant to scientists, policy-makers and economists. It is studied by law students, the general public and forms the work of both practitioners and academics.

Even so it is a subject that still lacks coherence as it is formed from many different parts. It is also exceptionally technical and the technical part of environmental law creates a formidable challenge. This could hardly be otherwise, given the many sources of environmental law - some statutory, some derived from European law or some based on international treaties. Environmental law also draws heavily on the case law developed through centuries of judicial decisions, which have often filled in gaps here and there or adjusted rules and concepts to fit new circumstances that were not entirely recognised earlier in the creation of legal rules. Even contemporary environmental law is often pragmatic in having to adjust to new science or changes in policy. In general the common law has resisted large-scale codification whereby the entire law on a given subject is to be found in a single codified statute. There are many instances, however, where statutory arrangements represent comprehensive and detailed codes in all but name. For example the law relating to contaminated land is to be found mainly in the Environmental Protection Act 1990. Even this codification, however, is supplemented by numerous amendments and adjustments to take account of new developments.

The sources and history of environmental law form the basis of this paper. A historical perspective will help to show how environmental law is in an incessant state of evolution and continually adjusts to new developments. It also serves to illustrate the complex and technical skills that are necessary to interpret and apply environmental law correctly. Enforcing environmental law has always been somewhat unpredictable and one challenge facing policy development today is how to address past mistakes. Failures to prevent pollution or environmental harm may be the result of weak laws or weak enforcement or both. There is a perpetual optimism among law makers that new regulations or rules will inevitably lead to improvement. The reality may be more pessimistic and only a few successes can be counted in the application of environmental law. Many environmental law obligations are poorly regulated or enforced in Britain today, with the exception of European law. Policy-makers appear to have learned some of the lessons from the past and there is a prevailing attitude that economic instruments (Table 1) are as likely to gain success as the application of more formal legal rules.

Table 1: United Kingdom environmental taxes.

This point is recognised in the use of economic instruments ...