Environmental Law for Sustainability

After Rio: The UNEP Assessment (UNEP, 2002).vulnerable, and air, water and marine pollution continue to rob millions of a decent life.4 Even in Western Europe, often considered to have the most sophisticated environmental laws, 'state of the environment' reports document little improvement in regional environmental quality.5 As China, India and other large developing economies expand further and modernise, the planet will surely be placed under even greater ecological stress.The result of all this, as the board of the Millennium Ecosystem Assessment warned recently, is that 'human activity is putting such strain on the natural functions of Earth that the ability of the planet's ecosystems to sustain future generations can no longer be taken for granted '. 6 What role has environmental law played in relation to these sobering trends, and what role might it play in reversing them?This is much more difficult to answer, and the goal of this volume is more to stimulate critical reflection on this question than to provide definitive answers.Law-understood in the conventional sense of official state law-has come to be widely accepted as a central vehicle for environmental protection, because of its ability to create authoritative standards and decision-making procedures for land use planning, pollution control and nature conservation, among many other elements of modern environmental governance.Yet debate rages over the existing and future contributions of law to sustainability, including the choice of legal instruments (eg Abbot, chapter 3, Driesen, chapter 9), the design of legal institutions (eg Dovers and Connor, chapter 2), the appropriate ethical foundations for environmental law (eg Bosselman, chapter 5), the role for public deliberation in law-making (eg Razzaque and Richardson, chapter 6), the relation between environmental protection and indigenous and other human rights (eg Richardson and Craig, chapter 7), the appropriate legal response to pervasive uncertainty and risk (eg Fisher, chapter 4), the choice of targets for legal intervention (eg Richardson, chapter 10), the prospects for environmental law in developing countries (eg Richardson, Mgbeoji and Botchway, chapter 13), and the role of various forms of legal ordering 'beyond' state law, from international law to corporate voluntary initiatives (eg Ellis and Wood, chapter 11, Perez, chapter 12, Wood, chapter 8).7 The UK was the first industrialising nation to introduce public environmental regulation, in the form of sanitation and town planning statutes in the mid-19th century: D Hughes, Environmental Law (Butterworths, 1996) ch 1.Other industrialising countries followed later: DAR Williams (ed), Environmental and Resource Management Law (Butterworths, 1997) 10-11.The trend was not restricted to the industrialising world.Practically all of India's forests, eg, were governed by forest management legislation by 1900: N Desai, 'Sustainable Development: A Brief Introduction ' (2003) 15 Georgetown International Environmental L Rev 812, 813.8 Eg Case Concerning the Gabcíkovo-Nagymaros Dam (Hungary v Slovakia) [1997] ICJ Rep 7 (separate opinion of Weeramantry J). 9 R Carson, Silent Spring (Fawcett Crest, 1962).10 SL Udall, The Quiet Crisis (Holt, Rinehart and Winston, 1963).11 The first specialist pollution control body, however, was Britain's Alkali Inspectorate, established in 1863, to address certain factory emissions: S Bell, Bell and Ball on Environmental Law (4th ed, Blackstone Press, 1997) 300.In relation to the US, see RF Blomquist, 'Clean "New World": Toward an Intellectual History of American Environmental Law, 1961-1990' (1990) 25 Valparaiso University L Rev 1.12 D Wallace, Environmental Policy and Industrial Innovation.Strategies in Europe, the USA and Japan (Earthscan, 1995) 63-4.13 Ch 758, 62 Stat 1155 (1948), codified as amended in various sections of 33 USC.