ABSTRACT
This paper discusses the historical development of International Environmental Law with a focus on the international and national instruments created over the years to address climate change and other related issues. This theoretical framework serves as an outline to better understand these laws' effectiveness in addressing environmental matters. For our analysis, two "opposite" countries have been compared: The United States of America and China. The former has a more structured legal system, which helps to implement several legal measures toward climate and environmental protection. However, the widespread inability to effectively implement national legislation is hampering the efforts to tackle environmental concerns. For what concerns China, the country has a less consolidated legal system, but since China is a Party of the UNFCCC, some provisions have been implemented.
Nevertheless, rampant corruption might erode the breakthroughs. At least in part, problems both at the national and international levels are to blame for the failure of enforcement of the global environmental rule of law. The lack of efficient enforcement mechanisms on the international level and the lack of proper rules at the state level contribute to this failure.
Authors: Klarisa Stafa (Junior Researcher), Erica Trotta (Junior Researcher).
Mondo Internazionale, G.E.O. - Environment
3. Legal mechanisms to tackle environmental issues: time of change?
Before analysing the different legal mechanisms to address the environmental issue, which exists nowadays, it is necessary to briefly define the difference between laws and rules. Laws are acts passed by Parliaments and undergo a legislative procedure. An example of law is the Environment Protection Act of 1986. On the other hand, rules are usually acts created within the government and the executive organs of a state. Therefore, they carry solely executive weight and are not approved by the legislative authorities. 2016 Plastic Waste Management Rules, for instance.
3.1. Introducing the environment in constitutional texts
There has been a striking global trend toward constitutionally enshrining environmental measures since the early 1970s; indeed, the majority of country constitutions throughout the world now have some form of environmental protection (May et al., 2014). Notably, today, specific references to environmental rights and obligations can be found in 149 out of 193 country constitutions worldwide. Most members of the Organization for Economic Cooperation and Development, the Commonwealth, La Francophonie, and even the Organization of Petroleum Exporting Countries fall under this category. The bulk of the nations in Africa, the Americas (except for North America), Asia-Pacific, Europe, and the Middle East/Central Asia are also included (Boyd, 2013). 1992 marked the year when the newest environmental provisions were added to national constitutions, with new environmental provisions appearing in 18 of them in that year alone. Not coincidentally, 1992 was a peak year in terms of global consideration of environmental concerns and awareness, thanks also to the Earth Summit in Rio de Janeiro, Brazil (Boyd, 2013).
Although this may suggest a growing worldwide consensus that the environment should be a subject of constitutional law, the constitutional importance of this issue is still being debated. The multiplicity of environmental constitutional provisions, the bulk of which are not traditional rights provisions, complicates the discussion. Moreover, despite the widespread acceptance of environmental clauses in constitutions across the world, the constitutional "entrenchment" of the environment is still controversial (Weis, 2018). The root of this dispute rests in two distinguishing characteristics of environmental issues that raise questions about the function of courts as envisioned by the conventional view. The first characteristic is that environmental concerns are very polycentric. As a result, environmental challenges have ramifications for a wide range of other societal issues and have the potential to influence a seemingly endless and boundless spectrum of interests—both human and non-human, present and future. Moreover, they affect whether there are future interest-bearers (Kysar, 2010). The second distinguishing quality is that environmental concerns are strongly contested. For example, there is a dispute over the viability of environmentalism as a goal and the requirements for dedication to it (Weis, 2014). Another cause of disagreement refers to the values at stake; mainly, the values-based controversy appears to advise against a rights-based strategy (Weis, 2018).
The two countries that will be examined in the third and final part of this paper, the United States and China, both lack environmental protection provisions in their national constitutions.
3.2. Integrating environmental damage in criminal law
While there are several ways to approach the topic of environmental liability, the focus of this section will be on criminal and civil culpability. Criminal law upholds the defence of society against crime, resulting in the best possible environmental protection. Special laws do not directly govern environmental protection in civil law. Still, it is provided for by laws addressing damage compensation, such as the Law on Obligations, the law based on Property Relations, and others (Krstinić et al., 2017). Under both public and civil law, the legislature may enact legislation addressing environmental responsibility. International criminal law accords have not explicitly defined transnational environmental crime yet, but this matter is increasingly gaining importance. A virtuous example comes from Germany, where, since 1978, the German Environment Agency has been describing the state and evolution of environmental offences. The publications also provide the number of instances from inquiry to conviction for environmental offences and details on the crime sites and perpetrators (particularly age, gender, and country) (Verlag, 2021). However, Environmental offences are primarily regarded as regulatory offences in countries that prosecute them, meaning that coercive tactics are minimal, and penalties are light. Nevertheless, several nations did list them as malum in se in their penal laws. Their enforcement tactics, however, continue to be inconsistent with their legal obligation to look into, charge and decide these cases.
In this sense, some environmental crime links to the more general idea of grave human rights abuses (AIDP). The international community has taken a leading role in environmental regulatory protection at the international level, but it hasn't included the criminal enforcement aspect in its policy framework. One of the few exceptions is the Council of Europe's 1998 Convention on the Protection of the Environment through Criminal Law (Collantes, …). It is the first worldwide treaty to criminalise activities causing or intended to cause environmental damage and marks a pivotal moment in the evolution of environmental criminal law. However, because not enough countries have ratified the Convention, it has not yet been enacted. (AIDP)
To conclude, it can be said that there is a critical need for a more "ecocentric" approach because to safeguard the environment through criminal law, it is necessary to simplify the regulatory chain in the policy cycle. Indeed, the national framework for environmental law regulation and enforcement too heavily relies upon (offences, authorities, and powers) (AIDP). The only way to move forward is to view environmental conservation as a separate legal benefit of general public interest that likewise requires the protection of the law.
3. Is the practical application of the law having the right impact? Role of case law from two 'opposite' systems: USA and China
In this section we will analyze some relevant case law from two countries whose legal, cultural, and historical backgrounds are often perceived as opposites: the USA and the Republic of China While the former is considered to be paragon of capitalism and rule of law as developed in Western philosophy, the latter incarnates the principles of communism and an evolving legal system based on Eastern philosophy.
When it comes to environmental litigation, the differences between these two systems become apparent. But what about their effectiveness? Are their differences and peculiarities determinant factors of judicial action effectiveness? Do they reflect the intentions of legislation? We will examine a few cases from both countries in order to explore if these differences make the application of environmental legislation more or less effective.
3.1 USA case law
The American legal system is complex and stratified. Being a Federation, the USA has a three-tier legal system, where Federal, State and local levels of jurisdiction coexist and sometimes superpose. Jurisdiction criteria will thus determine which law, whether national or federal, will apply. If, on the one side, this structure may provide for a greater degree of protection, on the other it may as well result in discrepancies among different States. For instance, only 16 States out of 50 have adopted state environmental legislation. Among them, only five require environmental review for local governmental projects. This number is reduced to 3 when it comes to private projects (ballotpedia.org, 2022). Furthermore, because it is a Common law system, it relies deeply on case law (as opposed to Civil law countries, where codified statutory law is the primary source of law).
Despite having less strict legislation than, for instance, European countries, the USA has several instruments to protect the environment: national, constitutional (Clean Air Act, Clean Water Act, NEPA, etc.) and federal (first, fifth and fourteenth amendments) instruments. Each of these can be invoked when bringing a claim before a judge.
The first thing it can be noticed when analyzing environmental claims is that they are numerous (climatecasechart.org, 2022), which is a good sign. However, filing a claim is only the first step toward environmental justice. As a matter of fact, the claim must then be considered as receivable/admissible and then obtain a favourable ruling, followed by effective enforcement measures. The time it takes for a judge to make a ruling is also an important sign of a legal system’s ‘health’ and effectiveness.
An exemplary case concerning federal environmental legislation is Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs. This case invokes the Executive Order 12898, 1994, adopted in 1994 and aiming to address “Environmental Justice in Minority Populations and Low-Income Populations" by including environmental justice in the federal decision-making process (Brower, 2021). Such an instrument gives environmental plaintiffs, be it individuals or groups, "the opportunity to challenge an agency rule or action via judicial review. In such a case, an agency could be forced to modify a harmful project, if not to abandon it altogether.
In the case mentioned above, the Sioux Tribe filed a claim to contest the building of a pipeline that crossed Lake Oahe, a water reserve the Tribe relied on for “drinking, agriculture, industry, and sacred religious and medicinal practices” (Sioux v. US Army Corps of Eng’rs, 2017).
The court’s conclusion was the following:
“[...] we affirm the district court’s order vacating DAPL’s easement and directing the Corps to prepare an EIS [Environment Impact Statement, NdR]. We reverse to the extent the court’s order directs that the pipeline be shut down and emptied of oil”
The sentence shows the concrete effects of law enforcement on people’s lives. Rulings have the power to enforce preventive and corrective actions that could result in an actual improvement of people's lives : lower risk of diseases related to poor air, water or soil quality; reduction in pollution and contamination; protection of resources and ecosystems.
This case is also particularly interesting, since it shows the complexity of environmental issues and how they often combine with social inequality. More importantly, the first relevant case invoking the E.O. 128998 was filed twenty years after the executive order entered into force. Studies have shown that, generally speaking, the impacts of this federal instrument were negligible, but this does not mean that things will not change. After all, the Sioux case might be the forerunner for a change in environmental justice.
At a national level, as mentioned above, only States with environmental legislation can provide for relevant case law at a lower level. These claims are based on the national legislation in force, and they are extremely heterogeneous: they can question authorizations, request for impact assessment, target illegal practices or prevent harmful projects from being approved (climatecasechart.com, 2022).
It is impossible to carry out an exhaustive analysis of significant environmental lawsuits in the USA. Generally speaking, the USA has a strong and structured legal system allowing for environmental cases to be heard, which is a powerful tool that many other countries do not possess. However, despite this being a fundamental first step, it is often not enough. Two other elements need to be taken into consideration: the average delay in obtaining a ruling and the effectiveness of measures. For instance, according to Earthjustice.org, some of the (still) ongoing cases have been filed back in the 70s and are still pending. In these cases even a positive outcome could be useless
In conclusion, while it is undeniable that many of them did contribute to environmental protection and improvement, too long delays undermine the effectiveness of the claim. We might expect that the Biden administration will tackle this issue and simplify procedures.
3.2 China case law
China’s political, philosophical and historical background differs deeply from the American model, and this affected the development of the Chinese legal system. First of all, China is not a Federation, which means that law is designed to be homogeneously applied in all parts of the country. Secondly, traditionally China’s legal system was not as structured as the Western one. However, in the past decades Western influence played a considerable role in the evolution of Chinese law (Potter, 2001). As a consequence, despite the inevitable differences, it is easier to make a comparison between the two.
In order to respect their international obligations (China is a party to the UNFCCC, the Kyoto Protocol and the Paris Agreement), in 2015 the government introduced the Environmental protection law. 189 public interest environmental cases have been allowed by the courts, 60% of which were brought by environmental NGOs. (chinadialogue.net, 2017). The Chinese legal system is still far from the number of cases filed in the USA, but it is a first step. In particular, the increase in claims has two positive effects: on one side it creates precedents that can be used as a reference in future cases; on the other, it raises awareness on environmental issues and the possibility for individuals to do something about them.
A relevant tendency that is currently increasing and that could play a huge role in achieving environmental justice in China is that of public interest litigation. This procedure was introduced by a reform in 2017, and it creates the possibility for local authorities (procuratorates) and NGOs to file claims in order to defend public interest, including against public entities. Although it is not environment-specific, half of these cases concern environmental issues (clientearth.org, 2021), giving rise to Environmental Public Interest Litigation, or EPIL (Xie, L., & Xu, L., 2021). Officially, the first case of this kind took place in Deqing County, Zhejiang. It targeted a local company that was "illegally using ozone-depleting substances". The ruling, announced on the 24th of March, condemned the company to a considerable monetary sanction.
China Dialogue reports some other relevant cases that show the impact of public litigation in environmental issues (chinadialogue.net, 2017). The respondent is often a local company that is not respecting environmental standards. From a pragmatic perspective, these trials are a fundamental instrument to enforce environmental legislation. Although rulings are not always in favour of environmentalists' claims, the essential is that there is a discussion, a debate, judicial confrontation on the matter, and that it is not only a pro forma.
According to Thomson&Reuters, environmental requirements set by laws are “strictly enforced”. However, one of the greatest difficulties of the Chinese legal system is the influence of political orientations. For instance, local traditions and interests (causing phenomena such as nepotism and corruption) risk undermining the effectiveness of environmental legislation. Very recently, several government members were accused of corruption (ISPI, 2022). This phenomenon could undermine the transparency and independence of the judicial system, including the effectiveness of environmental ruling.
Summing up, China has seen a buzzing evolution of its legal system toward Western legal models. The government has recently introduced several measures that, more or less directly, have the effect of protecting the environment. However, pervasive corruption could undermine their effectiveness.
CONCLUSIONS
The rise in public concern for the environment worldwide has been one of the most important trends in recent decades. If, before the late 20th century, the idea that ecosystems and other critical natural resources should be the focus of legislative protection was not widely accepted, over the past 40 years, with the expansion of environmental threats, international environmental law has undergone a tremendous transformation. The first UN Conference on the Human Environment marked a turning point in "modern" international environmental law. This era is characterised by a new trend in global environmental law: it promoted the development of "soft law," an innovative method of international consensus in making legislation(Sand, 2015). In this period, more than 1000 international legal instruments were made, including numerous worldwide environmental agreements, such as the 1987 Montreal Protocol limiting the use of chlorofluorocarbons (CFCs). Even more important steps were made in the Post-Modern Era, where the world witnessed a massive proliferation of new multilateral environmental instruments and norms. The Rio Conference of 1992 created four essential documents under a new institutional framework. Over the past few decades, coordinated international efforts to safeguard and maintain the environment have seen a noticeable increase. Agreements like the 1997 Kyoto Protocol aiming to reduce greenhouse gases and battle climate change, and its successor, the Paris Agreement, provide proof of this tendency. The latter agreements are considered the principal international instruments to address climate change. These international instruments tend to give a generic framework of rules, but it is then necessary to analyse how these international instruments translate at the national level. For example, Various tools have been employed at the national level to address environmental issues, such as regulations and standards, taxes and charges, tradable permits, subsidies and incentives, research and development, and information instruments.
Beyond these instruments, other important legal measures are also contributing to protecting the environment. Indeed, Since the early 1970s, there has been a noticeable global trend toward the constitutional enshrinement of environmental policies; now, most national constitutions contain some environmental protection. Although this may suggest a growing worldwide consensus that the environment should be a subject of constitutional law, the constitutional importance of this issue is still being debated. In addition, there have been multiple attempts to integrate environmental damage into criminal law: the legislature may pass laws addressing environmental responsibility in both public and civil law. However, environmental offences in nations that punish them are usually seen as regulatory offences, meaning that coercive measures are low and fines are light.
To sum up, it may be claimed that a more "ecocentric" approach will be urgently needed. It means that it is crucial to streamline the regulatory chain in the policy cycle to protect the environment through criminal law. After having analysed the international and national framework of environmental law, it is now essential to study whether the practical application of the law is having the rights impact or not. To answer this question, two' opposite' case law systems have been compared: those of the USA and China. The American legal system runs under a Common Law system; therefore, it relies intensely on case law. Despite having less strict legislation than, for instance, European countries, the USA has multiple tools to safeguard the environment at several levels: national, constitutional (Clean Air Act, Clean Water Act, NEPA, etc.), and federal (first, fifth, and fourteenth amendments). In general, their legal system allows for environmental cases to be heard. However, the average delay in obtaining a ruling and the weak effectiveness of measures negatively impact the rulings. On the other hand, China's legal system is not as structured as the Western one. However, since China is a Party of the UNFCCC, it has introduced some laws, such as the Environmental protection law. Public interest litigation is a significant trend on the rise and might be very important in attaining environmental justice in China. A reform adopted this process in 2017, allowing local governments and NGOs to bring lawsuits to defend public interests. However, the growing and pervasive corruption could undermine the transparency and independence of the judicial system and, as a consequence, could weaken the environmental protection laws.
This study suggests that, despite the fact that there are many more environmental protection organizations and laws, the international effort to tackle several environmental concerns has been hampered by the widespread inability to effectively implement legislation. The international community's attempts to execute successful global policy in the twenty-first century have been hampered by the lack of adequate enforcement mechanisms that have plagued international organisations and agreements throughout the twentieth century. The unwillingness of individual governments to cede sovereignty to international institutions contributes, at least in part, to the international community's inability to implement international environmental legislation. International environmental agreements, like the Paris Agreement, are frequently voluntary in form as a result of this reluctance, and as a result, the UN is unable to compel individual signatories to abide by its terms (Savaresi, 2016).
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