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Journal of Environmental Law Current Issue

Published: Tue, 07 Nov 2017 00:00:00 GMT

Last Build Date: Fri, 08 Dec 2017 14:52:32 GMT


Surviving Without Nature

Tue, 07 Nov 2017 00:00:00 GMT

Inside the Equal Access to Justice Act: Environmental Litigation and the Crippling Battle over America’s Lands, Endangered Species, and Critical Habitats. By BaierLowell E [Lanham, Maryland: Rowman & Littlefield, 2016, 648 pp, ISBN 978-1-4422-5744-3, Hardback, £49.95]

The Legality of Downgrading Nationally Determined Contributions under the Paris Agreement: Lessons from the US Disengagement

Tue, 03 Oct 2017 00:00:00 GMT

In this analysis piece, we consider a legal question that generated much debate in the lead-up to the US decision to withdraw from the Paris Agreement: can a Party downgrade its nationally determined contribution (NDC) to climate mitigation without running afoul of its treaty commitments? Drawing on the treaty interpretation methods set out in the Vienna Convention on the Law of Treaties, we examine the Paris Agreement’s normative framework and analyse the provision on adjustment of NDCs. We show that, while NDCs as such are not legally binding, they are subject to binding procedural requirements and to normative expectations of progression and highest possible ambition. Read together, these binding and non-binding terms make plain that a Party would contravene the spirit of the Paris Agreement if it downgraded an existing NDC. The US federal government is already scaling back its domestic climate action, such that it is unlikely to meet its NDC. Its Paris withdrawal, however, can only be formally declared in 2019 and will not take effect until 2020. We consider how, during this interim period, the legal implications of the ‘withdrawal’ approach differ from those of the ‘stay-and-downgrade’ approach.

Are More Prescriptive Laws Better? Transforming REDD+ Safeguards into National Legislation

Fri, 18 Aug 2017 00:00:00 GMT

International schemes for financing conservation and climate mitigation, such as Reducing Emissions from Deforestation and Degradation and forest enhancement (REDD+), have generated concerns about the effect of large influxes of money on good governance, the human rights of local land users, and biodiversity. While there is agreement on the need for safeguards to prevent negative effects, how prescriptive or flexible those safeguards should be is not well understood. We develop a framework for a multi-scale comparison of the prescriptiveness of measures to reduce carbon emissions with safeguards for community rights and biodiversity, and apply this framework to international REDD+ safeguards and their transformation into Mexican law. Our findings reveal significant differences across substantive and procedural safeguards with positive and negative impacts on community rights. We also find that not prescribing ownership over forest carbon and de-bundling property rights from rights to benefit from ecosystems stewardship, helped overcome political conflicts in Mexico and enhanced the potential for equity in REDD+ outcomes.

A Borrowed Cloak: The Institutional Bottlenecks to Legislating Environmental Information Disclosure by Chinese Listed Corporations

Wed, 26 Jul 2017 00:00:00 GMT

In recent years, the area of environmental information disclosure has been developing as a way for listed corporations in China to adopt the concept of social responsibility. There are views that proposals to legislate corporate social responsibility must depend on existing legal rules of securities and corporate law. However, the foundation of structuring a legal system on environmental information disclosure by listed corporations is essentially incompatible with the legislative aim of securities law, which mainly focuses on protecting investors. As a result, it is hard to coordinate environmental law and securities law to regulate environmental information disclosure of listed corporations. Moreover, rules on environmental information disclosure by listed corporations would trigger a clash of institutional goals between stockholder protection and stakeholder protection, creating further tension with existing corporate law: via the principle of fiduciary duty. Thus, there are visible institutional barriers to introduce a mandatory environmental information disclosure system for listed corporations via existing securities law and company law. It is not that simple to legislate corporate social responsibility.

The ‘Triangle’ of Australian Energy Law and Policy: Omissions, Connections and Evaluating Environmental Effects

Fri, 30 Jun 2017 00:00:00 GMT

Utilising the theory of the ‘Energy Law and Policy Triangle’, this article analyses the consequences of not having a comprehensive national energy policy, whereby economics, environment and politics are all included. While focusing on two of the three points of the Triangle—economics and environment—the Australian 2015 Energy White Paper has not incorporated the third fully—the politics of energy security—and environmental protection is also inadequate. The article argues that the absence of a comprehensive national energy policy leaves Australia open to piecemeal, reactive approaches to critical issues. Using the example of the South Australian Nuclear Fuel Cycle Royal Commission it highlights the implications of a federal policy vacuum, as whatever decisions the South Australian Government takes on waste disposal, it is unclear whether the Australian Government will support them. It recommends the development of a comprehensive policy, clearer links between aspects, and to apply strategic environmental assessment to significant environmental effects of policy.

Public Participation in China’s Environmental Lawmaking: In Pursuit of Better Environmental Democracy

Tue, 30 May 2017 00:00:00 GMT

For a country without a mature representative democracy, the development of public participation mechanisms in lawmaking processes is of paramount importance and deserves research. In China, public participation in lawmaking through a one-stage disclosure and comment process is now routine, and the revision of the Environmental Protection Law beginning in 2012 gave birth to a new mechanism featuring a two-stage disclosure and comment process. Expanding public participation can benefit environmental democracy by bringing environmental insights and interests into environmental lawmaking, balancing economic and environmental interests and strengthening public participation in the implementation of law. Recent environmental lawmaking activities with the new public participation mechanism show positive progress towards a more transparent and inclusive lawmaking process, but also limitations regarding the effective interaction between the public and the legislature, the meaningful consideration of public comments into legislative decisions, and the mobilisation of civil society and environmental NGOs. China needs both short- and long-term measures to address the problems and thus fully realise the benefits of public participation.

Vagueness and Discretion in the Scope of the EIA Directive

Tue, 02 May 2017 00:00:00 GMT

Article 2(1), the core obligation imposed by the Environmental Impact Assessment Directive, requires that projects ‘likely to have a significant effect on the environment’ are subject to an environmental assessment. The vague term ‘significant effect’ confers a broad discretion in interpreting the scope of the Directive, which the European Commission has identified as problematic. This article examines the role of this discretion in the regulatory framework, in order to contribute to a better understanding of the nature and purpose of Environmental Impact Assessment. The analysis is conducted through the lens of Endicott’s theory on ‘vagueness’ in law, which helps to understand the nature of Article 2(1) discretion. It demonstrates that discretion is integral to the framework rather than a side effect of the formulation of Article 2(1) and that it is valuable because it creates space to consider a vast array of factors in the assessment of ‘significance’ and promotes deliberation on environmental values.