The effectiveness of environmental law / edited by Sandrine Maljean-Dubois.
2017
KJC6242.A6 E34 2017 (Map It)
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Title
The effectiveness of environmental law / edited by Sandrine Maljean-Dubois.
Published
Cambridge, United Kingdom : Intersentia, [2017]
Copyright
©2017
Call Number
KJC6242.A6 E34 2017
ISBN
9781780684673 (paperback)
1780684673 (paperback)
1780684673 (paperback)
Description
xiv, 347 pages : illustrations ; 25 cm.
System Control No.
(OCoLC)989967701
Summary
This book is the third volume in the 'European Environmental Law Forum' (EELF) book series. The EELF is a non-profit initiative of environmental law scholars and practitioners from across Europe aiming to support intellectual exchange on the development and implementation of international, European and national environmental law in Europe. One of the activities of the EELF is an annual conference. This book is comprised of fifteen contributions presented at the Third EELF Conference in Aix-en-Provence, hosted by the Central European Research Infrastructure Consortium, at Aix-Marseille University, from 2 to 4 September 2015. The central topic of the book is the effectiveness of environmental law. The impressive development in environmental law has not always been matched by corresponding improvements in environmental quality. The threats to our environment and, by extension, to our health have never been so numerous or serious. But paradoxically, the effectiveness of environmental law has been a long-neglected issue. This book offers a fruitful and stimulating dialogue between practitioners and academics, from varied countries and varied fields, combining empirical and theoretical approaches. The contributions go from classical -but still necessary- tools (control, criminal, administrative, civil sanctions, liability rules, strengthening of the regulatory structure and the role of judges?), to more innovative ones (public participation, effectiveness of instrument mixes, collaborative governance, hybrid governance and private environmental enforcement"--Back cover.
Note
"This book bundles 15 contributions from those presented during the Third EELF Conference in Aix-en-Provence, hosted by the CERIC, Aix-Marseille University, from 2 to 4 September 2015."--Back cover.
This book is the third volume in the 'European Environmental Law Forum' (EELF) book series. The EELF is a non-profit initiative of environmental law scholars and practitioners from across Europe aiming to support intellectual exchange on the development and implementation of international, European and national environmental law in Europe. One of the activities of the EELF is an annual conference. This book is comprised of fifteen contributions presented at the Third EELF Conference in Aix-en-Provence, hosted by the Central European Research Infrastructure Consortium, at Aix-Marseille University, from 2 to 4 September 2015. The central topic of the book is the effectiveness of environmental law. The impressive development in environmental law has not always been matched by corresponding improvements in environmental quality. The threats to our environment and, by extension, to our health have never been so numerous or serious. But paradoxically, the effectiveness of environmental law has been a long-neglected issue. This book offers a fruitful and stimulating dialogue between practitioners and academics, from varied countries and varied fields, combining empirical and theoretical approaches. The contributions go from classical -but still necessary- tools (control, criminal, administrative, civil sanctions, liability rules, strengthening of the regulatory structure and the role of judges?), to more innovative ones (public participation, effectiveness of instrument mixes, collaborative governance, hybrid governance and private environmental enforcement"--Back cover.
This book is the third volume in the 'European Environmental Law Forum' (EELF) book series. The EELF is a non-profit initiative of environmental law scholars and practitioners from across Europe aiming to support intellectual exchange on the development and implementation of international, European and national environmental law in Europe. One of the activities of the EELF is an annual conference. This book is comprised of fifteen contributions presented at the Third EELF Conference in Aix-en-Provence, hosted by the Central European Research Infrastructure Consortium, at Aix-Marseille University, from 2 to 4 September 2015. The central topic of the book is the effectiveness of environmental law. The impressive development in environmental law has not always been matched by corresponding improvements in environmental quality. The threats to our environment and, by extension, to our health have never been so numerous or serious. But paradoxically, the effectiveness of environmental law has been a long-neglected issue. This book offers a fruitful and stimulating dialogue between practitioners and academics, from varied countries and varied fields, combining empirical and theoretical approaches. The contributions go from classical -but still necessary- tools (control, criminal, administrative, civil sanctions, liability rules, strengthening of the regulatory structure and the role of judges?), to more innovative ones (public participation, effectiveness of instrument mixes, collaborative governance, hybrid governance and private environmental enforcement"--Back cover.
Bibliography, etc. Note
Includes bibliographical references.
Record Appears in
Gift
Purchased from the income of the Beinecke Fund
Added Author
Added Corporate Author
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Beinecke Fund
Table of Contents
Preface
v
Introduction. The Effectiveness of Environmental Law: A Key Topic / Sandrine Maljean-Dubois
1
1.
effectiveness of environmental law: a long-neglected issue
2
2.
Effectiveness: what is it?
3
2.1.
Effectiveness and other related concepts
3
2.2.
multiple meanings of effectiveness
4
3.
Difficulties in assessing effectiveness
7
4.
How to improve the effectiveness of environmental law
8
4.1.
Better legislation
9
4.2.
Better implementation
10
pt. 1
MEASURING AND ASSESSING EFFECTIVENESS
ch. 1
Climate Resilience of Critical Infrastructural Network Sectors. An Interdisciplinary Method for Assessing Formal Responsibilities for Climate Adaptation in Critical Infrastructural Network Sectors / Rebecca Worner
15
Abstract
16
1.
Introduction
16
2.
methodological framework for the assessment of climate resilience
19
2.1.
Phase 1: Preparation
20
2.2.
Phase 2: Assessment
20
2.3.
Phase 3: Reflection and recommendations
21
3.
Six indicators for assessing climate resilience
22
4.
Application of the assessment framework: two case studies from the Netherlands
27
4.1.
Steps 1 and 2: Justification of the selection and the climate risks per sector
27
4.2.
Steps 3 and 4: Overview of sectoral characteristics and current responsibilities
29
4.3.
Steps 5 and 6: Assessment, reflection and recommendations
31
5.
Conclusions
35
pt. 2
IMPROVING EFFECTIVENESS
2.1.
Better Legislation
39
ch. 2
Effectiveness of Payment for Ecosystem Services: a mix between a gradient model of public intervention and an effective normative framework / Adelie Pomade
41
Abstract
41
1.
Introduction
41
2.
Cases Studies
44
2.1.
French Vittel case
44
2.2.
Belgium agro-environmental measures
47
2.3.
Costa Rica's PES program
51
3.
Results
55
3.1.
balance between public and private regulation within PES
55
3.2.
intensity and quality of the normative framework of the mechanism
61
4.
Conclusion
65
ch. 3
Effectiveness of Environmental Law through Contracts / Mathilde Hautereau-Boutonnet
67
1.
vertical effectiveness of environmental law through contracts
69
1.1.
contractual influence of the environmental legal order
70
1.2.
environmental influence of the contractual legal order
73
2.
horizontal effectiveness of environmental law through contracts
76
2.1.
creation of contractual environmental obligations
76
2.2.
prescription of contractual environmental obligations
78
ch. 4
Legal Weaknesses and Windows of Opportunity in Transnational Biodiversity Protection: as Seen through the Lens of an Ecosystem Approach-Based Paradigm / Elina Raitanen
81
Abstract
81
1.
Introduction
82
2.
Ecosystem approach-based paradigm - Normative basis and the rationale
83
3.
Operationalizing the ecosystem approach-based paradigm to combat the regulatory weaknesses of biodiversity protection
87
3.1.
Towards coherent laws -- Creating linkages
87
3.2.
Towards adaptive law -- The precautionary principle revisited
93
4.
Conclusions
99
ch. 5
Better Expertise through Institutional Linkages. The Case of the Mediterranean Basin / Guillaume Futhazar
101
1.
Introduction
101
1.1.
Technical bodies: a broad category
103
1.2.
Criteria for technical bodies
104
1.3.
role of law
105
2.
Mediterranean institutional landscape
106
2.1.
Mediterranean technical bodies
108
2.2.
Joint activities
111
3.
"Shared objects" as a means for coordination between technical bodies and regimes
112
3.1.
Common goals and frameworks
113
3.2.
Shared technical bodies
114
4.
Memoranda of Understanding
116
4.1.
purpose of the Mediterranean MoUs
116
4.2.
legal nature of Mediterranean MoUs
117
4.2.1.
Instruments with several legal indicators
117
4.2.2.
possible different legal natures of the Mediterranean MoUs
119
5.
Conclusion
122
ch. 6
Environmental Dignity Rights / James R. May
125
Abstract
125
1.
Introduction
126
2.
Dignity rights in comparative constitutional perspective
132
3.
Environmental rights in comparative constitutional perspective
136
4.
Imagining environmental dignity rights
138
5.
Invoking environmental dignity rights
141
5.1.
Dignity as the measure of environmental violations
142
5.2.
Standing
144
5.3.
Rights to inclusion
145
6.
Conclusion
146
ch. 7
Environmental Protection of Traditional Knowledge and the Active Participation of Indigenous Peoples in the Planning, Management and Decision-Making Processes as Means of Improving the Effectiveness of Environmental Law / Priscilla Cardoso Rodrigues
149
Abstract
149
1.
Introduction
150
2.
Indigenous traditional knowledge and its recognition as cultural ecosystem services
152
2.1.
Definition and legal protection of the indigenous traditional knowledge
152
2.2.
Indigenous traditional knowledge as cultural ecosystem services
154
3.
valuation of indigenous traditional knowledge within the ecosystem services framework
157
3.1.
valuation of ecosystem services, benefits, and values
157
3.2.
Valuing the indigenous traditional knowledge through an ecosystem services approach
159
3.3.
conceptual and methodological proposal to valuate the indigenous traditional knowledge through an ecosystem services approach
161
4.
active participation of indigenous peoples in planning, management and decision-making processes as a means of improving the effectiveness of the environmental law
163
5.
Conclusion
169
ch. 8
Promoting Electricity from Renewable Energy Sources in France. Is French Law Appropriate for Achieving the Objectives? / Marie Lamoureux
171
Abstract
171
Introduction
172
1.
French and European energy policy
174
1.1.
2005 programming law on energy policy
174
1.2.
2009-2010 the Grenelle Acts
174
1.3.
2015 Energy Transition for Green Growth Act
175
1.4.
European climate and energy policy
176
2.
(ineffectiveness of the French legal framework
178
2.1.
Complexity and slowness of administrative procedures
179
2.2.
Inconsistencies
180
2.3.
Instability and legal uncertainty
181
3.
Conclusion
184
ch. 9
Changing Patterns of International Environmental Law-Making: Addressing Normative Ineffectiveness / Owen McIntyre
187
Abstract
187
1.
Introduction
188
2.
Environmental law-making through classical sources
191
2.1.
International conventions
192
2.2.
Customary international law
198
2.3.
General principles of law
202
2.4.
Judicial and arbitral tribunals
205
2.5.
Publicists
207
3.
Innovative features of international environmental law-making
208
3.1.
Reliance on "soft-law"
208
3.2.
Technical complexity and the role of international institutions
210
3.3.
Multi-level and multi-polar governance
211
3.4.
Participation and procedural sophistication
215
3.5.
Environmental treaty congestion, fragmentation and integration
217
4.
Conclusion
219
ch. 10
Effectiveness of EU Nature Legislation: a long battle to secure supporting sectoral policies / Sandra Jen
221
1.
Effectiveness of EU nature legislation from conflicting to supporting EU policies -- the long battle to secure coherence with EU nature legislation
221
2.
race to protect future Natura 2000 sites threatened by regional and cohesion policy projects
224
2.1.
1993-1999: provisions on "compatibility and check"
224
2.2.
1999 -- Commissioners united for coherence and conditionality
226
2.3.
Enlargement to new Member States
229
2.4.
2006-2013 financing Natura 2000 and biodiversity mainstreaming
230
3.
Reconciling the Common Agriculture Policy with nature protection: still a challenge
232
3.1.
Cross compliance and the nature directives
234
3.2.
Numerous options for Natura 2000 funding under the CAP
237
4.
Conclusion
238
2.2.
Better Implementation
ch. 11
Towards More Effective Protection of Water Resources in Europe by Improving the Implementation of the Water Framework Directive and the Aarhus Convention in the Netherlands / H.F.M.W. (Marleen) van Rijswick
243
1.
Introduction
243
2.
structure of water management in the Netherlands: an overview...
246
3.
Towards a better programmatic approach
250
3.1.
linkage between quality standards and specific projects
251
3.2.
meaning of the concept of `non-deterioration'
254
3.3.
room for a net-loss approach
258
4.
Towards better participation and judicial protection
261
4.1.
Participation to the drafting of water plans and programme of measures
261
4.2.
Access to justice to challenge the validity of water plans and programme of measures
264
5.
Conclusions
267
ch. 12
Environmental Inspectors and Public Prosecutors. Is Sharing Information Always Useful? / Sandra Rousseau
271
Abstract
271
1.
Introduction
271
2.
Modelling communication between environmental inspectors and public prosecutors
277
2.1.
Model setup and scenarios
277
2.2.
Modelling the information sharing from environmental inspector to public prosecutor
278
2.2.1.
Model assumptions
279
2.2.2.
Decision making process of the sender (environmental inspector)
280
2.2.3.
Decision-making process of the receiver (the public prosecutor)
281
2.2.4.
Model results
283
2.2.4.1.
Model 1: costless information sharing and identical objectives
283
2.2.4.2.
Model 2: costless information sharing and diverging objectives
284
2.2.4.3.
Model 3: costly information sharing and identical objectives
284
2.2.4.4.
Model 4: costly information sharing and diverging objectives
285
2.2.5.
Summary of the model results
286
3.
Relevance for policy development and practice
287
3.1.
Specialization of public prosecutors: `environmental prosecutors' ...
287
3.2.
Informative quality of notices of violation
289
3.3.
Prioritization of environmental offences in prosecution
291
4.
Conclusions
292
ch. 13
Environmental Damage Caused by Oil Exploitation in Brazil. The "Conduct Adjustment Agreement" (TAC) as a Means to Circumvent Civil Liability Ineffectiveness / Priscila Pereira de Andrade
295
Abstract
295
1.
Introduction
296
2.
Brazilian civil liability system for the reparation of environmental damage caused by oil spills
299
2.1.
General aspects of the Brazilian liability system
299
2.2.
Limits in providing for reparation of environmental damage concerning oil spills
301
2.2.1.
Limits of the reparation in natura
302
2.2.2.
Limits of the monetary reparation
303
3.
Contributions of the "Conduct Adjustment Agreement" to the reparation of environmental damage caused by oil spills
305
3.1.
Reflections on the TAC's main features
305
3.2.
TAC's contribution to the definition of the obligation to repair in natura
307
3.3.
TAC's contribution to the definition of the monetary obligation to repair
308
3.4.
TAC's definition of preventive obligations that indirectly contribute to repair
310
4.
Conclusion
311
ch. 14
Can Multilateral Development Banks be More Environmentally Effective? Perspectives from the Practice of International Accountability Mechanisms / Vanessa Richard
313
1.
purpose and scope of IAMs' control of the implementation of environmental standards
323
1.1.
specific roles of IAMs
324
1.2.
On the binding character of the environmental and social standards of MDBs
326
1.3.
scope of the IAMs' remit
333
2.
merry-go-round of loopholes and pitfalls in the implementation of ESSs
336
2.1.
Methodology of the study
336
2.2.
Kinds of non-compliance: the usual suspects
340
2.3.
details the devil is in: systemic institutions' shortcomings
344