The concept of Sustainable Development in the current political climate has gone beyond environmental pollutions. It now encompasses issues in trade, finance, technology just to mention but a few. But this essay concentrates on environmental pollutions as this is a global phenomenon. During the course of compiling this essay, we have examined how the UK is using the legal framework to protect the environment through the use of legislations and standards. Great emphasis is laid on climate change although other issues were examined also. Section one introduces the topic and sets the scene for further investigation. The second section examines the vision of the state in achieving sustainability. The last section examines the role of court in enforcing sustainable development principles through the use of legal and economic instruments. Because of the restrictions on this essay, most topics were not examined in great details. I hope you will find this essay interesting and captivating. Table of Contents Introduction This essay examines one of the greatest challenges of our generation, which is to adopt and establish sustainable development as outlined in the Rio Declaration (1992)  and planned in agenda 21  . This Declaration defines sustainable development as a combination of economic development and environmental protection. Asides its legal remit, the concept of sustainability development has accrued some profound and established scientific, philosophical, political and economic dimensions. The principles of sustainable development  have not been long in existence and hence, it is undergoing through various reviews as detected by the science of law and its application through judicial review and court processes. Sustainable development aims at solving some social problems which are rapidly becoming serious threat to the environment and the inhabitants of the environments. One of the greatest social problems of our age is Global Change which has led to the Environmental Crisis and has been moving very speedily to its thresholds of irreversibility. Hence, sustainable development has come up with some mitigation packages to direct and control it through proper global strategies. There has been some crucial research programmes on Global Change, for instance, IHDP, WCRP, and IGBP, just to mention but a few. These research programmes or studies follow the normal slow pace of science, but unfortunately, the Global Environmental Crisis cannot afford to wait. Therefore, it is necessary for researchers, legislators, politicians, NGOs, and the judiciary to participate actively on the drive as they are the first to lay their hands on the facts and will become the administrators of the problems of sustainability development. The law must face the challenges of sustainable development. The obvious truth today is that, for instance, it is not worthwhile to assess and monitor the cleanliness of the waters, soils, and air, without simultaneously curbing those who are responsible for polluting them. Every citizen should be made to understand and adopt the “simple systemic rule that says think Globally and act Locally”  , which stresses the relationship between economic dependency on environment and man’s protective packages for the environment. This is the time for the decision-makers to realise that sustainable development aims at integrating the principles of protecting the cultural, natural, and social capital in every policy and planning system, be it private or public. The norms and values of sustainable development should form the pillars of any country in both the developed and developing world in order to implement the principles of sustainable development. The legal science should be reviewed so that the law can be effective in controlling and enforcing sustainability. The legal theory should be updated especially in the area of public law so that its legal methods can become sustainable. This essay points out the extent to which the concept of sustainable development is implemented in law. So far they have been various Directives in UK, EU and internationally on Environmental Liability such as “Polluter Pays Principles”, which will be looked at in subsequent sections. The extent to which this is implemented relies on the interpretations and judgements of courts, which are obviously inundated by very wide variety of problems relating to sustainable development. The big question is how do we react? The court can only act within its juridical powers and within the limit of what legislation permits. There have been some measurable successes in some of the developed countries such as the USA, UK, Canada, France, etc which have been made possible through administrative reforms in the past two decades or so. But the extent of measure of success depends on the behaviour of the citizens, organisations, and the States in relation to sustainability paradigm. The prerequisite for achieving sustainable development under this current changing faces of economic climate relies on regulating the environment by developing adequate and effective strategies for managing and protecting the scarce resources. As I mentioned above regarding the successes recorded by some countries such as the UK  in the past two decades, this success would not have been achieved without an effective legal system which have been responsible for the development and implementation of environmental standards. These standards have obviously emerged as proportional responses to the growing concern about the environment and the demands to tighten pollution monitoring and controls. In the UK, environmental law have been successfully used to address the public concern about pollution. Most of these environmental laws were inherited during the nineteenth century  and have actually provided a wide range of statutes and case law that have been used to punish the polluters. With the success of pollution control, environmental laws have facilitated the development of techniques and methodologies that enabled the move from a reactive approach to a more proactive approach to the environment. Strategies that prevent recurrence of pollution problems have been developed which are more effective than dealing with the effect of pollution. Examples of these prevention control strategies include environmental impact assessment, environmental standards and integrated pollution controls. This introductory section paves the way to examine the extend to which the concept of sustainable development is implemented by law. The subsequent sections will explore the investigation in more details.
The Rio Conference on the Environment (1992) will always be remembered in the history of mankind as the moment that the excessive obsession on economic development that cared less about the effects of such development on the environment was put to an end. This Conference highlights what was being practised at that time or what people thought was development, based on their perception and understanding of economic development. That developmental growth had a corresponding frantic squandering of earth’s natural resources. The vision of every State was to create an affluent society at the extreme cost of the environment. All the countries of the world were concerned about the gross national income, the stock market and the take home packages at the cost of the environment. In fact, people were very slow to realise that they were loosing the natural benefits such as the water, sun, air, nature and soil that our ancestors enjoyed. People did not realise that the environment is being degraded by economic activities and land-use planning. It is quite clear that the above vision of affluent society that cared less about the environment had become somewhat faded since scientific data was used to raise awareness of the limits of development. The Stockholm Declaration on the Environment (1992) emerged as a corresponding justice done to the concerns of Systems Scientists and the general public. But the successor of an ideology must be born before the ideology is finally buried. The Rio Conference will always be remembered because it successfully provided mankind with the new vision of Sustainable Development paradigm. This paradigm is not based on quantitative development but on qualitative development principles which put nature and the environment at the centre of its activities while striving hard to create a balance among economic, social and environmental considerations and developments. The previous vision of creating an affluent society has been dropped and the new vision of instituting a more sustainable society has been adopted. Sustainable development protects the built and natural environment, ensuring harmonious coexistence among people, encouraging and establishing good quality of life its citizens. To avoid misinterpretation of the meaning sustainable development, Brundtland (1987)  , defines Sustainable Development as “development which meets the needs of the present without compromising the ability of future generations meeting their own needs”. This report by Brundtland (1987) was based on integrating environmental objectives with economic and social considerations  . In summary, the ultimate vision of a more sustainable society propounds a fair and peaceful society that has the ability of not only growing economically, but also establishing the culture of qualitative development. This qualitative development will be governed by modern environmental law which is responsible for the application, implementation, regulation and enforcement of sustainable development principles. These modern environmental laws must confront the realities of the environmental crisis. This environmental crisis is reaching its threshold of irreversibility. It could be summarised as downright criminal to be ignorant of it or to underestimate it. Hence, the next section will consider the role of law in sustainable development, in other words, the extent to which sustainable development is implemented in law in the UK.
This section focuses on the role of law in sustainability achievement in the UK. Before I delve into the role of law in achieving sustainable development, it is important to understand the broad definition of law which says “that law is not a given and static sum of legal rules, but a dynamic system of legal decisions and acts at numerous and interwoven hierarchical levels, the supreme among which comprises the authoritative decisions of the International Community (in conventional, customary or regulatory form), next the statutory decisions (constitutional rules), and thereafter, on a descending scale, legislative, regulatory, and individual decisions, and finally material acts”  . In the context of law, sustainable development also is not a static sum of rules, but a dynamic system which could be defined as a collection of public policies that are used in social reform. For sustainable development to be established in its totality there must be an effective legal system in place to apply, implement and enforce the principles through the court processes. This quest for a legal system that regulates the activities on the environment led to the development of environmental laws. The Environmental law is not a single unit but a very broad category of laws consisting of laws that were enacted to address specific environmental issues. Environment in the context of sustainable development comprises of the social and physical factors of the surrounding of not only human beings but also that of other creatures. These surroundings include land, water, air, climate, odour, sound, taste, waste management, energy, marine and costal pollution, the biological factors of animals and plants, not excluding cultural values, historical site, aesthetics and monuments. Hence, environmental law could generally be defined as the body of law that contains elements to control the Impact of human activities on the earth and on the health of the general public. Environmental law could be divided into two broad categories namely, national environmental law and international environmental law. The relationship between national environmental law and international environmental is actually on the scope that each of the two times of law covers and the purposes for which each of the two categories of law was created. International environmental is a law developed between or among sovereign states to develop standard at the international level and imposes obligations upon state to regulate the behaviours in matters relating to the environment in accordance with international relations. On the other hand, national environmental law applies only within the state and it regulates the relation of citizens among each other and with the executives within the state. A state fulfils its international obligations through an enactment and enforcement of national legislation, standards, and the regulations adopted in order to control the activities that have a damaging effect on the environment within a state. At the top of national environmental law is the UK’s environmental legislation. Currently, there is a list of key environmental legislation  for each region of the UK that deals with specific environmental issues. The Office of Public Sector Information (OPSI) website stores a database of an original legislation on each specific environmental problem in England. These legislations provide useful guide to businesses regarding the environmental and land use activities. Some of this legislation that governs England would be considered next.
This legislation is used to enforce sustainable development principles as it controls and monitors emission of “gases, dark smoke and other airborne pollutants that harms or reduces the quality of the atmosphere. This introduces environmental permitting and authorising regimes and also, through the framework, promotes financial incentives to reward people or businesses that switch to less-polluting ways of working”  . There are two very important Acts under this category and they are: “Clean Air Act 1993  and Climate Change Act 2008”  . Clean Air Act 1993 bans releasing of dark smoke from chimneys and furnaces into the atmosphere. It also sets the minimum chimney heights and creates smoke control zones. The “Climate Change Act 2008 sets 2050”  as the target for reducing greenhouse gas emissions. It provides outlines for a carbon budgeting system, establishes greenhouse gas emission trading schemes, encourages financial incentives for businesses in order to reduce their waste and recycle their waste more and also gives powers to charge for single use bags. This Act has been adopted and enforced by most of the big business operators and some of the small business owners in England. The number of businesses charging for single use bags will keep increasing everyday as more awareness is being raised. For instance, Lidl supermarket stores charge for both single use and multiple use bags. The above legislations led to the development and adoption of many regulations at the lower level of hierarchy in order to enforce the legislation. The table below lists and briefly explains the scope of few of the regulations. Regulation Purpose “Climate Change Agreements (Eligible Facilities) Regulations 2001 SI 662”  “This regulation outlines the eligibility criteria for an installation or site to be include in the Climate Change Agreement. This regulation stipulates that at least 90% of the energy supplied to it will be used within the site”. “Climate Change Agreements (Eligible Facilities) Regulations 2006 SI 60”  “This regulation expands the types of activities of energy-intensive businesses and sites that can claim Climate Change Levy at a reduced rate”. “Climate Change Agreements (Energy-intensive Installations) Regulation 2006 SI 59”  “This regulation specifies which energy-intensive installations are entitled to claim the reduced rate of Climate Change Levy”. “Climate Change Levy (General) Regulations 2001 SI 838”  “This is a charge on the supplies of electricity, gas and solid fuels. It sets out who this charge applies to and who is exempted from it. It also sets out what is taxable, the registration procedures, returns and tax credits”. “Crop Residues (Burning) (England and Wales) Regulations 1993 SI 1366”  “This regulation is used to ban the burning of residues from crops on agricultural land (with exceptions). It also restricts the burning of linseed and other specified crops, and sets the conditions for the size and timings of burning”. “NEW CRC Energy Efficiency Scheme Order 2010 SI 768”  “This introduces a new energy efficiency scheme in the UK which is designed to reduce carbon emission from public and private sector organisations that consume large amount of electricity, gas and other fuels”. “Environmental Protection (Controls on Ozone-Depletion Substances) Regulations 2002 SI 528”  “This controls the production, marketing, use of, trade-in, emissions and transport of specified ozone-depleting substances”. “Fluorinated Greenhouse Gas Regulation 2009 SI 261”  “This regulation supersedes fluorinated greenhouse gas regulation 2008. It makes it an offence and imposes penalties for not complying with the recovery of f-gases legislation, labelling, qualifications and certificates required o work with products or equipment containing them”. “Renewable Transport Fuel Obligations Order 2009 SI 843”  “This propounds that the road vehicle fuel suppliers must produce a certificate showing that a proportion of their fuel is renewable and this proportion increase every year until 2013”.
This legislation aims to control the quality of water in England. It includes discharges to sewers, groundwater and surface water, water abstraction and impounding and protects water against nitrate pollution from agriculture  . I will briefly look at two Acts under water legislation, they are: Water Resources Act 1991  and Water Act 2003  . Water Resources Act 1991 was set up to conserve, manage and control water resources pollution, abstraction and impounding and ensures that offences for contravening it are dealt with accordingly. It also organises flood defences. Water Act 2003 sets out the framework requiring possession of licenses for water abstraction. It regulates impoundments. This Act increased competition in supplying of water and introduces measures for drought management and flood defence work in England and Wales. There are a long lists of regulations used to control pollution of water resources aimed at making water safe for consumption for human beings and other living organisms. These regulations will not be covered in this essay. Another legislation of a significant importance is the “English Waste Legislation”. This legislation controls “the generation, transportation and disposal of waste within the European Union and the shipment of waste into and out of the EU. It includes controlled waste, duty of care, registration of carriers and brokers, environmental permitting, landfill, hazardous waste, producer responsibility, package waste, end-of-life vehicles, waste electrical and electronic equipment (WEEE) and the transfrontier shipment of waste  . There are quite a number of Acts and regulations covering waste management such as Clean Neighbourhoods and Environment Act 2005  , Controlled Waste Regulations 1992 SI 588  just to mention but a few. In conclusion on how legislations and regulations are being used as legal instruments to promote and enforce sustainable development in particular and the environment in general, it is worth noting the following legislations: English chemicals legislation, English land legislation, English noise and statutory nuisance legislation, English radioactive substance legislation and last but not the least, English environmental permitting legislation  . These legislations together with the accompanying regulations and Orders have been enforced through court processes by the use of civil and criminal law cases and the “Polluter Pays Principle”. Further down on the hierarchical level of control is the use of standards in regulating the environment. In the UK, the methodology of standard-setting provides an explanation on the issue of using law, science and economic instruments combined together to protect the environment and consequently, promote sustainable development. The Royal Commission is responsible for setting standards in the UK and it estimates that “four fifths of UK environmental legislation originates from the pioneering efforts of the European Union”  . The EU has adopted the Precautionary Principle which serves as the basis for preventative action rather than reactive approach. Standards as defined by the Royal Commission are a set of legally enforceable numerical limit with a wider remit  . It is important to note that standards became a key part of the policy in the United Kingdom as set out in the White Paper in 1990 of the Department of the Environment. Standards are formed through a wide range of sources such as guidelines, codes of practice and also it sets out the criteria for the implementation of the policy based on a particular fact. Standards are developed by private or public bodies and may involve formal or informal rules and may apply different techniques for the implementation of such standards. The court may enforce standards if they are mandatory and also standards may be enforced through terms of contract, statutory framework or through legally enforceable licences. Some standards are voluntary so to say and cannot be enforced through the court and entirely depend on self judgement and self-regulation for their implementation and observance. An example of a voluntary or self-regulatory standard is the BS 7750  Environmental Standard. This standard was originally pioneered by the British Standards Institute which allows UK companies to introduce environmental management systems that implement standards contained in BS 7750. Another example of a voluntary standard is the ISO 14000  from the International Organisation for Standardisation. This standard has a similar objective objectives set in BS 7750. In 1995 work began on ISO 14031  which sets out guidance on evaluation of environmental performance and it operates around two basic indicators: Environmental condition indicators, which include air and water quality and indicators of biodiversity; Environmental performance indicators, which provide various parameters for evaluation of the environmental performance of organisations. This section will not be complete without acknowledging the significant importance of the EC Eco-management and Audit Scheme (EMAS) (Regulation 1836/93)  . Although it is still voluntary, it’s somewhat tougher than ISO 14001. It aims to encourage businesses and organisations to improve their environmental standards through a range of activities and many companies and organisations have adopted this standard.
In the UK, the Crown Prosecution Service is responsible for all criminal cases and the standard of proof is beyond reasonable doubt. It is important to understand how criminal law fits within the context of environmental regulation. Compliance is an important element in environmental law, as punishment by its nature is ‘ex post facto’ and this poses a challenge in proving that criminal sanctions will constitute a deterrent especially in a situation where the enforcement strategies are weak, since in the past, environmental regulations have based on cooperation and self-restraint. But this weak enforcement regime has now been gradually replaced with a more confrontational approach as a result of a number of influences by the EU. The EU provides a more prescriptive and proactive approach to prevention of environmental pollutions  . This approach was incorporated by Environmental Agency under the Environmental Act 1995 and which has strengthened the weaknesses of traditional approach to environmental protection. The Environmental Agency is responsible for a whole range of sanctions which includes the use of criminal sanctions in accordance with Legislative and Regulatory Reform Act 2006. Most pollution offences are based on strict liability and an offender who is guilty of accidental spillage or pollution is not able to claim that it was accident and hence, has to face the consequences. This measure will in no doubt provide the prosecution with wide and strong powers to enforce environmental regulations.
The court uses civil action to set standards and clarifies the rights of the parties involved. “Civil proceedings arise when an individual who has suffered harm or damage brings an action against the individual or institution that caused the damage, or loss or harm with the complaint based on tort or any other legal wrong”. Under environmental law, the tort of nuisance normally the cause of action, where the claimant claims or unlawful interference with his or her rights involving the use or enjoyment of land. It is difficult to ascertain what level of interference constitutes nuisance and that is the main limitation of this approach.
In 1972, the OECD developed the idea that the person responsible for the pollution should be liable for the consequences of that pollution. I other words, the person should be involved in paying for the aftermaths of that pollution. The UK gradually adopted this principle into the legislation. This principle was first embedded in the Environmental Protection Act 1990 and then in the Environment Act 1995. The principle became enshrined in the Treaty of Amsterdam 1997, but had been in existence in the community before that date  . The Polluter Pays Principle is particularly useful in the case of waste disposal. The land fill tax has two main purposes; to reduce the amount of solid waste to landfill purely in terms of volume and secondly, to reduce the amount of methane generated from organic waste. The lower the amount of organic waste, the lower the quantity of methane which forms the greenhouse gas produced as a result of anaerobic degradation of waste in the landfill. The principle has been extended to incorporate various economic instruments such as carbon taxes aimed at reducing the burning of fossil fuels and the production of carbon dioxide, which is a key greenhouse gas contributing to global warming. This principle is difficult to apply and implement as it may be exploited by production companies and eventually, the final consumer will the cost of the pollution. This is because the production companies might add the cost of tax or penalty paid as part of the overall cost of production and then pass on to the buyer to pay. As a result, this might be very effective in inhibiting pollution. The polluter pays principle assumes that the polluter may be found and detected and in cases of historic pollution and contaminated land this is rarely the case. More so, the application of taxes such as landfill tax may result in evasion of payment by not disposing to landfill, with a concomitant increase in the illegal dumping of waste.
This is another useful legal instrument in regulation of the environment in the UK. This form of coordination of pollution control systems has been adapted under Part I of the Environmental Protection Act 1990. This more ‘holistic’ approach  used by IPC acknowledges that environmental do not know geographic boundaries, and that pollution impacts on the society may require a pooling of scientific knowledge to control it. One relevant example is the emission of sulphur dioxide and nitrogen oxides into the atmosphere during the burning of fossil fuel in generation of electricity  . These gases dissolve in water droplets in the atmosphere, which obviously become part of acid rain in terrestrial and aquatic environments  . The Secretary of State support the work of IPC by approving the list of substances and processes which pass through IPC and the number is well over 2000 in England and Wales. The introduction of EC Directive on Integrated Pollution Prevention and Control (96 / 61) further enhanced the work of IPC. The legislation necessary to implement the Directive is found in the Pollution Prevention Act 1999  . There are other examples of integrated approaches to environmental protection such as ecolabelling of products, the environmental auditing of installations and common pollution controls over pollution. These approaches will not be examined in this essay.
The question arises as to what extent is the concept of sustainable development implemented in law. As outlined above, the concept of sustainable development, in relation to reducing or preventing environmental pollutions have been implemented in the UK through setting various legislations and acts of law. These legislations have been implemented through the legal enforcement of environmental standards. The courts play two major roles. The first function is that the courts provide the means for the implementation and enforcement of regulatory standards. This enables grievances to be adjudicated and solutions found. In the second function of the courts in conflict resolution, they set their own performance standards through slowly evolving the common law on a case-by-case basis. These performance standards involve setting limits on human behaviour by imposing levels of civil and criminal liability which is believed will protect the integrity of the environment and ensure safety and good practice.
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