Environmental law

Written By:
Celia I. Campbell-Mohn, Federico Cheever
See Article History
Related Topics

 climate change
 environment
 environmentalism
 law
 National Environmental Policy Act (NEPA)
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 common but differentiated responsibilities (CBDR)
 Alien Tort Claims Act (ATCA)
 environmental policy

Environmental law, principles, policies, directives, and regulations enacted and enforced by
local, national, or international entities to regulate human treatment of the nonhuman world. The
vast field covers a broad range of topics in diverse legal settings, such as state bottle-return laws
in the United States, regulatory standards for emissions from coal-fired power plants in
Germany, initiatives in China to create a “Green Great Wall”—a shelter belt of trees—to protect
Beijing from sandstorms, and international treaties for the protection of biological diversity and
the ozonosphere. During the late 20th century environmental law developed from a modest
adjunct of the law of public health regulations into an almost universally recognized independent
field protecting both human health and nonhuman nature.
 

A river in Sichuan province, China, polluted by a paper mill.

Peter Turnley/Corbis

Historical development
Throughout history national governments have passed occasional laws to protect human health
from environmental contamination. About ad 80 the Senate of Rome passed legislation to protect
the city’s supply of clean water for drinking and bathing. In the 14th century England prohibited
both the burning of coal in London and the disposal of waste into waterways. In 1681 the Quaker
leader of the English colony of Pennsylvania, William Penn, ordered that one acre of forest be
preserved for every five acres cleared for settlement, and in the following century Benjamin
Franklin led various campaigns to curtail the dumping of waste. In the 19th century, in the midst
of the Industrial Revolution, the British government passed regulations to reduce the deleterious
effects of coal burning and chemical manufacture on public health and the environment.

Prior to the 20th century there were few international environmental agreements. The accords
that were reached focused primarily on boundary waters, navigation, and fishing rights along
shared waterways and ignored pollution and other ecological issues. In the early 20th century,
conventions to protect commercially valuable species were reached, including the Convention
for the Protection of Birds Useful to Agriculture (1902), signed by 12 European governments;
the Convention for the Preservation and Protection of Fur Seals (1911), concluded by the United
States, Japan, Russia, and the United Kingdom; and the Convention for the Protection of
Migratory Birds (1916), adopted by the United States and the United Kingdom (on behalf of
Canada) and later extended to Mexico in 1936. In the 1930s Belgium, Egypt, Italy, Portugal,
South Africa, Sudan, and the United Kingdom adopted the Convention Relative to the
Preservation of Fauna and Flora in their Natural State, which committed those countries to
preserve natural fauna and flora in Africa by means of national parks and reserves. Spain and
France signed the convention but never ratified it, and Tanzania formally adopted it in 1962.
India, which acceded to the agreement in 1939, was subject to the sections of the document
prohibiting “trophies” made from any animal mentioned in the annex.

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Beginning in the 1960s, environmentalism became an important political and intellectual

In Japan rapid reindustrialization after World War II was accompanied by the indiscriminate
release of industrial chemicals into the human food chain in certain areas. In the city of
Minamata, for example, large numbers of people suffered mercury poisoning after eating fish
that had been contaminated with industrial wastes. By the early 1960s the Japanese government
had begun to consider a comprehensive pollution-control policy, and in 1967 Japan enacted the
world’s first such overarching law, the Basic Law for Environmental Pollution Control. Not until
the end of the 20th century was Minamata declared mercury-free.

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Following the United Nations Conference on the Human Environment, held in Stockholm in
1972, the UN established the United Nations Environment Programme (UNEP) as the world’s
principal international environmental organization. Although UNEP oversees many modern-day
agreements, it has little power to impose or enforce sanctions on noncomplying parties.
Nevertheless, a series of important conventions arose directly from the conference, including the
Convention on the Prevention of Marine Pollution by Dumping of Wastes or Other Matter
(1972) and the Convention on International Trade in Endangered Species of Wild Fauna and
Flora (1973).

Until the Stockholm conference, European countries generally had been slow to enact legal
standards for environmental protection—though there had been some exceptions, such as the
passage of the conservationist Countryside Act in the United Kingdom in 1968. In October 1972,
only a few months after the UN conference, the leaders of the European Community (EC)
declared that the goal of economic expansion had to be balanced with the need to protect the
environment. In the following year the European Commission, the EC’s executive branch,
produced its first Environmental Action Programme, and since that time European countries
have been at the forefront of environmental policy making. In Germany, for example, public
attitudes toward environmental protection changed dramatically in the early 1980s, when it
became known that many German forests were being destroyed by acid rain. The
environmentalist German Green Party, founded in 1980, won representation in the Bundestag
(national parliament) for the first time in 1983 and since then has campaigned for stricter
environmental regulations. By the end of the 20th century, the party had joined a coalition
government and was responsible for developing and implementing Germany’s extensive
environmental policies. As a group, Germany, The Netherlands, and Denmark—the so-called
“green troika”—established themselves as leading innovators in environmental law.


Branches from a tree in Germany’s Black Forest show needle loss and yellowed boughs
caused by acid …

Ted Spiegel/Corbis

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During the 1980s the “transboundary effects” of environmental pollution in individual countries
spurred negotiations on several international environmental conventions. The effects of the 1986
accident at the nuclear power plant at Chernobyl in Ukraine (then part of the Soviet Union) were
especially significant. European countries in the pollution’s downwind path were forced to adopt
measures to restrict their populations’ consumption of water, milk, meat, and vegetables. In
Austria traces of radiation were found in cow’s milk as well as in human breast milk. As a direct
result of the Chernobyl disaster, two international agreements—the Convention on Early
Notification of a Nuclear Accident and the Convention on Assistance in the Case of Nuclear
Accident or Radiological Emergency, both adopted in 1986—were rapidly drafted to ensure
notification and assistance in the event of a nuclear accident. In the following decade a
Convention on Nuclear Safety (1994) established incentives for countries to adopt basic
standards for the safe operation of land-based nuclear power plants.

There are often conflicting data about the environmental impact of human activities, and
scientific uncertainty often has complicated the drafting and implementation of environmental
laws and regulations, particularly for international conferences attempting to develop universal
standards. Consequently, such laws and regulations usually are designed to be flexible enough to
accommodate changes in scientific understanding and technological capacity. The Vienna
Convention for the Protection of the Ozone Layer (1985), for example, did not specify the
measures that signatory states were required to adopt to protect human health and the
environment from the effects of ozone depletion, nor did it mention any of the substances that
were thought to damage the ozone layer. Similarly, the Framework Convention on Climate
Change, or Global Warming Convention, adopted by 178 countries meeting in Rio de Janeiro at
the 1992 United Nations Conference on Environment and Development (popularly known as the
“Earth Summit”), did not set binding targets for reducing the emission of the “greenhouse” gases
thought to cause global warming.

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In 1995 the Intergovernmental Panel on Climate Change, which was established by the World
Meteorological Organization and UNEP to study changes in the Earth’s temperature, concluded
that “the balance of evidence suggests a discernible human influence on global climate.”
Although cited by environmentalists as final proof of the reality of global warming, the report
was faulted by some critics for relying on insufficient data, for overstating the environmental
impact of global warming, and for using unrealistic models of climate change. Two years later in
Kyōto, Japan, a conference of signatories to the Framework Convention on Climate Change
adopted the Kyōto Protocol, which featured binding emission targets for developed countries.
The protocol authorized developed countries to engage in emissions trading in order to meet their
emissions targets. Its market mechanisms included the sale of “emission reduction units,” which
are earned when a developed country reduces its emissions below its commitment level, to
developed countries that have failed to achieve their emission targets. Developed countries could
earn additional emission reduction units by financing energy-efficient projects (e.g., clean-
development mechanisms) in developing countries. Since its adoption, the protocol has
encountered stiff opposition from some countries, particularly the United States, which has failed
to ratify it.