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Environmental Law
 Chapter One
INTRODUCTION TO ENVIRONMENTAL LAW

What is Environment?

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 Why we bother about the definition?
 A legal definition of the environment helps delineate the scope of the
subject, determine the application of legal rules, and establish the extent of
liability when harm occurs.
 In some circumstances law and policy will respond to environmental
deterioration produced by natural events, such as volcanic eruptions, as
well as those caused by human intervention. Even though law cannot affect
the natural processes causing environmental changes, it can and does
regulate human behaviour, including behaviour in response to natural
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disasters.
Definition
 Defining environment is not an easy task.
 Most legal instruments whether national or international are not
attempted to define the term directly.
 It is a term that everyone understands and no one is able to define.
 The world commission on environment and development (WCED)
relied on an even more succinct approach; it remarks that “the
environment is where we live.”
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 Def’n. Cont’d…

 The word environment is derived from an ancient French word

environner, meaning to encircle.
 By broadly applying to surroundings, environment can include the
aggregate of natural, social and cultural conditions that influence the
life of an individual or community.

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 Cont’d…

 'Environment’ is a complex of natural and anthropogenic factors and

elements that are mutually interrelated and affect the ecological
equilibrium and the quality of life, human health, the cultural and
historical heritage and the landscape.

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 Cont’d…
The Council of Europe Convention on Civil Liability for Damage
Resulting from Activities Dangerous to the Environment defines the
environment as including;

 Natural resources both abiotic and biotic (living), such as air, water,
soil, fauna(animal life) and flora and the interaction between the
same factors; property which forms part of the cultural heritage;
and the characteristic aspects of the landscape.

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 Cont’d…
Article 2(3) of Environmental Protection Organs Establishment
Proclamation, Proclamation No. 295/2002 defines the environment as:
 The totality of all materials whether in their natural state or
modified or changed by human, their external spaces and
interactions which affected their quality or quantity and the welfare
of human or other living beings, including but not restricted to,
land, atmosphere, weather and climate, water, living things, sound,
odor, taste, social factors, and aesthetics. 9
 Environmental Law

 Environmental law is the collection of laws, regulations, agreements

that governs how humans interact with their environment.

 Its purpose is to protect the environment and create rules for how

people can use natural resources.

 Its not only aim to protect the environment from harm, but they also

determine who can use natural resources and on what terms.

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What do environmental law
regulates?
 Environmental law covers a wide range of topics including the ff:

Air Quality

Water Quality

Waste Management

Contaminant cleanup

Chemical Safety

Hunting and Fishing

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International Vs National Environmental Laws
International Environmental Law
Is Environmental Law a self-contained discipline?
Some scholars have avoided the use of the term, arguing that there is no
distinct body of international environmental law with its own sources
and methods of law-making deriving from principles peculiar or
exclusive to environmental concerns. Rather, they stress that such relevant
law as does exist originates from the application of general rules and
principles of classical or general international law and its sources.
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Thus international environmental law is nothing more, or less, than
the application of international law to environmental problems.

 The problem with over-emphasizing the role of general international

law has been that the traditional legal order of the environment is
essentially a laissez-faire system oriented toward the unfettered
freedom of states.

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 Cont’d…
 A study of contemporary international environmental law thus requires
us to consider both this new body of specifically environmental law
and the application of general international law to environmental
problems.
 Moreover, international environmental law also includes not only
public international law, but also relevant aspects of private
international law, and in some instances has borrowed heavily from
national law.

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 Cont’d…

International Environmental law is thus used simply as a convenient

way to encompass the entire corpus of international law, public and
private, relevant to environmental issues or problems, in the same way as
the use of the terms law of the sea, Human Right law, and International
Economic Law is widely accepted.

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 Cont’d…
 It is not intended thereby to indicate the existence of some new
discipline based exclusively on environmental perspectives and
strategies, though these have played an important role in stimulating
legal developments in this field, as we shall observe. It has become
common practice to refer to international environmental law in this
way.

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National Environmental Law

 It is an environmental law which has a domestic application.

 National environmental law includes the provisions concerning the
environment in the 1995 FDRE constitution; different environmental
treaties ratified by the House of Representatives

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 Why We need Environmental Law?

a. the existence of an extensive range of environmental problems.

Problems such as atmospheric pollution, marine pollution, global

warming and ozone depletion, the danger of nuclear and other extra-
hazardous substances are not limited to a national territory of a state
and these environmental problems cannot be resolved by states
acting individually.

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 Cont’d…

b. The relationship between the protection of the environment and the

need for economic development is another factor underpinning the
evolution of environmental law.

Reading Assignment

Historical Development of Environmental Law in the World and in

Ethiopia
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Levels of Environmental Law

 It is provided under treaties, declarations and conventions.

 National Constitutions.
e.g.

• German Constitution ( Basic Law) provides that the government must protect for
“future generations the natural foundations of life.”

• Chinese constitution guarantees to each citizen a “right to life and health” and requires
the state to ensure “the rational use of natural resources and protects rare animals and
plants”.
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 Cont’d…
• The South African constitution recognizes a right to “an environment that is

not harmful to health or well-being; and to have the environment protected,

for the benefit of present and future generations”;

• The Bulgarian constitution provides for a “right to a healthy and favorable

environment, consistent with stipulated standards and regulations”;

• The Chilean constitution contains a “right to live in an environment free from

contamination.” 21
 Roles of Environmental law in Protecting the Environment

 It provides mechanisms and procedures for negotiating the necessary

rules and standards, settling disputes, and supervising implementation
and compliance with rules.
 It is concerned with regulating environmental problems, setting
common standards and objectives for prevention or mitigation of harm,
and providing a flexible rule-making process that allows for easy and
regular amendment in the light of technological development.
 reinstatement of or compensation for environmental damage
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 Individual Assignment

Explicate the role of Religious traditions

and Traditional Communities in Protecting
the Environment

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 Sources of Environmental Laws

National Environmental Laws

A. Constitution

Many constitutions now contain provisions establishing environmental rights, or set

forth governmental duties to protect the environment and the state’s natural resources.

More than 100 constitutions refer to a right to a clean and healthy environment,

impose a duty on the state to prevent environmental harm, or mention the protection

of the environment or natural resources.

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 Cont’d…

 Even where the right to a healthy environment is not expressly provided,

other constitutional rights are being interpreted and enforced by courts
in an environmental context.

E.g. The Supreme Court of India was one of the first courts to develop the
concept of the right to a healthy environment as part of the right to life
guaranteed by the constitution.

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 Cont’d…

 On the case b/n Subhash Kumar v. State of Bihar, AIR 1991 SC 420,

1991 (1) SCC 598. the Court observed that the “right to life

guaranteed by article 21 includes the right of enjoyment of

pollution-free water and air for full enjoyment of life.”

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B. Environmental Legislations

 Legislative texts often establish general environmental policy,

supplemented by specific laws and administrative regulations.
 Broad or framework environmental statutes have been adopted in many
different countries: e.g.,

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 Law on the Protection of the Environment (Russia, 2001)

 National Environmental Act of Sri Lanka;

 National Environmental Policy Act of the U.S.A. (1969);

 Environmental Protection Act of India, Environmental Management Act (Trinidad &

Tobago, 1995/2000);

 Environmental Conservation Law of Nepal;

 Environment Conservation Act of Bangladesh, Environmental Protection Act of

Pakistan;

 Environmental Law of Bulgaria (1991); and

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 General Law for Ecological Equilibrium and Environmental Protection (Mexico, 1988).
 Cont’d…

 These statutes use common techniques and procedures of environmental

protection, including environmental impact and risk assessment, prior
licensing, and emission standards.

 Promulgation of standards for various pollutants is often a critical

component of the legal framework for environmental protection. Standards

may be expressed in terms of ambient standards, which are often health

based and normally embody broad objectives, and performance

standards or technology-based standards to achieve those goals.

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C. Administrative Regulation
D. Criminalizing Environmental Misconduct
E. Tort and other forms of civil liability
F. Industry Standards and Code of Conduct

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 International Laws as a source of Environmental Law

Source of International Law: Art. 38 of ICJ

a. Treaty or Conventions
b. International Custom
c. General Pples
d. Judicial Decisions

Non-binding Int’l Instruments

 BASIC PRINCIPLES OF ENVIRONMENTAL LAW

 There are a number of principles that are at the core of most environmental
protection systems, whether at the international or national level.
 Familiarity with these principles can offer insight into the purpose and
thrust of the various legal mechanisms that have been built upon them.
 Most of the principles are agreed and issued during different UN meetings.
 1. Prevention

 Experience and scientific expertise demonstrate that prevention must be

the Golden Rule for the environment, for both ecological and economic
reasons.
 In some instances it can be impossible to remedy environmental injury
once it has occurred.
 Even when harm is remediable, the cost of rehabilitation is often very
high. In many instances it is impossible to prevent all risk of harm.
 Techniques that can all be seen as applications of prevention.

• Prior assessment of environmental harm

• Licensing or authorizations that set out the conditions for operation and
the remedial consequences for violation of the conditions

• Emission limits and other product or process standards

• The use of best available techniques (BAT)

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 Cont’d…
 It is linked to the notion of deterrence and the idea that disincentives
such as penalties and civil liability will cause actors to take greater
care in their behavior to avoid the increased costs, thus preventing
pollution from occurring.
 It is a “command and control” or “end-of-pipe” environmental
regulations that limit the amount of pollution that may be emitted.

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 2. Precaution

What is a Precaution Principle?

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Definition

 It is a measure taken in advance to prevent something dangerous,

unpleasant, or inconvenient from happening.
 The principle requires that, if there is a strong suspicion that a
certain activity may have environmentally harmful consequences,
it is better to control that activity now rather than to wait for
incontrovertible scientific evidence.
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 Cont’d…

 Precaution has variously been associated with the ideas that:

1) Scientific uncertainty should not be used as a reason not to take action
with respect to a particular environmental concern.
2) Action should affirmatively be taken with respect to a particular
environmental concern.
3) Those engaging in a potentially damaging activity should have the
burden of establishing the absence of environmental harm.
4) State may restrict imports based on a standard involving less than full
scientific certainty of environmental harm.
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 Cont’d…

 The so-called “precautionary approach” is relatively recent, dating from

the late 1980s. The 1992 Rio Declaration, Principle 15, formulates it thus:

In order to protect the environment, the precautionary approach shall be

widely applied by States according to their capabilities. Where there are
threats of serious or irreversible damage, lack of full scientific certainty shall
not be used as a reason for postponing cost effective measures to prevent
environmental degradation. 39
 3. Polluter Pays

 It was originally enunciated by the OECD to restrain national public

authorities from subsidizing the pollution control costs of private firms.
 Instead, enterprises should internalize the environmental externalities by
bearing the costs of controlling their pollution to the extent required
by law.

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 Cont’d…

 Historically, pollution control costs have been borne by the community at

large, rather than by those who pollute.
 Community assumption of the costs can be demonstrated using the
example of an industry that discharges pollutants into a river. There are at
least three possible ways for the community to assume the economic
costs of the pollution:

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Example

1) The river can remain polluted and rendered unsuitable for certain
downstream activities, causing the downstream community to suffer an
economic loss;

2) The downstream community can build an adequate water treatment

plant at its own cost;

3) The polluter may receive public subsidies for controlling the pollution.
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 Cont’d…

 The polluter pays principle avoids this result by obliging the polluter to
bear the costs of pollution control, to “internalize” them.
 In most cases the enterprise will in fact incorporate the costs in the
price of the products to some degree and pass them on to the
consumer.

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 Where air is fouled by a producer who bears no cost, it is a negative
externality; those who buy the product also are free riders if the fouling is
not reflected in the price of the goods.
 Internalization requires that all the environmental costs be borne by the
producer/consumer instead of the community as a whole.

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 Polluters should pay for the cost of pollution control measures, such as
the construction and operation of anti-pollution installations,
investment in anti-pollution equipment and new processes, so that a
necessary environmental quality objective is achieved.

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Difficulty
 Application of the principle may be difficult in practice

a) Where identifying the polluter proves impracticable because the pollution

arises from several simultaneous causes or from several consecutive
causes.

b) Where the polluter has become financially insolvent. In such instances,

there may be no alternative to community assumption of the costs of
remediation. 46
 4. Environmental Justice And Equity

 Environmental justice seeks to ensure that authorities fairly allocate and

regulate scarce resources to ensure that the benefits of environmental
resources, the costs associated with protecting them, and any degradation
that occurs (i.e. all the benefits and burdens) are equitably shared by all
members of society.

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 Environmental justice goes beyond traditional environmental protection
objectives to consider the equitable distribution of pollution, and,
more broadly, the often disproportionate burden borne by the poor
and minority groups in respect to environmental harm.

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Environmental Justice Comprises Public trust

 The concept of public trust expresses the idea that the present generation
holds the natural resources of the earth in trust for future generations.
 When applicable as a legal principle, public trust contemplates that
certain things, such as natural resources and the exercise of public
power, are held by governments in trust for the citizenry and must be
used for the public benefit.
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 5. Integration Principle

 Taking environmental considerations into decision-making processes,

through both environmental-impact-assessment mandates and other
provisions.
 Due consideration be given to the potential consequences of
environmentally fateful decisions.

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 6. Public participation

 Government decisions to set environmental standards for specific types

of pollution, to permit significant environmentally damaging activities,
or to preserve significant resources are made only after the impending
decision has been formally and publicly announced and the public has
been given the opportunity to influence the decision through written
comments or hearings.
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 Cont’d…

 Citizens may challenge government decisions affecting the

environment in court or before administrative bodies. These citizen
lawsuits have become an important component of environmental
decision making at both the national and the international level.

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 7. The Obligation of States Not to Cause Damage to the Environment beyond
Their Jurisdiction.

 This principle is a duty to prevent, reduce and control trans-frontier

environmental harm.

The 1982 UN Convention on the Law of the Sea:

States shall take all measures necessary to ensure that activities under
their jurisdiction or control are so conducted as not to cause damage
by pollution to other States and their environment, and that pollution
arising from incidents or activities under their jurisdiction or control
does not spread beyond the areas where they exercise sovereign rights
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in accordance with this Convention.

8. States’ Obligations to Cooperate, to Inform and to Consult With Other
States

 If States have conflicting interests related to an environmental problem

such as trans-boundary pollution, States have a general obligation to
cooperate in order to find solutions, and if necessary to negotiate in
good faith in order to solve conflicts through peaceful means.

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 9. Shared Natural Resources, Common Property and Common
Heritage of Man Kind

A. Shared Natural Resource

It is when one natural resource comes under the jurisdiction of several

states.

e.g. A lake bordered by two or more states, or a river running through the
territory of several states.

e.g. Article 63 of the Law of the Sea Convention, that fish stocks occurring
within the exclusive economic zones of two or more coastal states are also
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regarded as shared natural resources.

 Cont’d…

 It is unclear what resources should be treated as shared. In particular,

there is at present not international consensus to include resources such
as boarder forests, mountain chains, the atmosphere or biodiversity
within natural geographic area.
A state’s right to exploit such resources, relative to other states’ rights,
the general principle of “equitable utilization” is broadly recognized.

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B. Common Property

 It refers mainly to the living resources outside national jurisdiction, such as

fish stocks and other living resources on the high seas.
 There is an implicit obligation to take necessary conservation measures, if
limitations are needed to keep the catch within the limits of sustainability.

 The Law of the Sea Convention clearly expresses the general obligation of

states to take necessary measures in order to conserve the living

resources of the high seas.

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C. Common Heritage of Mankind

 The common heritage of mankind is often used as a term for global

environmental resources, such as the Earth’s biodiversity, the tropical
forests or the atmosphere.
 The term itself indicates an obligation to manage these resources for the
benefit of mankind as a whole, and a need for international control of
their exploitation.

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 Cont’d…

 In international law, however, the concept has a stricter meaning.

It refers to two specific non-living resources outside national
jurisdiction: the sea-bed mineral resources and the moon. In principle,
all states should share the benefits of these resources, even if they don’t
take directly part in their exploitation.

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 10. Sustainable Development

 Sustainable development’ is intended to serve not simply the needs of the

environment, but entails a reorientation of the world’s economic system
in which the burdens of environmental protection will fall more heavily
on the developed Northern States and the economic benefits will accrue
more significantly to the underdeveloped south for the common benefit of
all.

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 Chapter Three
Environmental Rights

 Right to Information
 Right to Public Participation
 Environmental Quality(the right to Clean Environment)

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 CHAPTER 4
THE LEGAL FRAMEWORK OF ENVIRONMENTAL
PROCEEDING

Legal Personality
 Whether legal personality should be bestowed to the environment as a
separate legal entity or not depends on the type of theory which orient
the legal system of a country.
 There are two theories.

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1. Anthropocentric Theory

 It refers the relationship between human beings and the environment as

a relationship in which environment is valuable only to the extent to
which they can be used and exploited by human beings.

 This view considers nature as an instrument instead of having any

intrinsic values in its own self. Nature as a means not as an end by
itself.
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 Cont’d…
 Environmental concern according to this theory is, addressing the interest of
human beings by pointing out the direct link between harm done to the
environment and harm done to the human community.

The theory considers

• humans and nature as separate,

• human beings placed in the center

• the environment being instrumental to the interest of man

• legal personality can be bestowed only to human beings where and when
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their interest is at stake.

 Cont’d…

 Genrally, the theory deny legal personality to the environment because

they consider it as contingent/ accessory to the human element.

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2. Ecocentric Theory

According to this theory the well-being and flourishing of all life forms
on earth have value in themselves. Man has no right to reduce the
diversity and richness of nature which has an intrinsic value.
This theory fundamentally rejects separation of human beings from
nature.
It considers man as intimately connected and as such part of the natural
environment.
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 Cont’d…
 Proponents of the Ecocentric view seek a fundamental shift in
consciousness from human domination of nature to a perception of
human and non-human life as of having equal intrinsic value.

 Thus, the theory acknowledges the conferring of legal personality to

each distinct part of the environment to exercise their own right at
their own request.
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 The position of Ethiopian Environmental Laws and Policies

 Art.44 of the constitution: The right to Clean and Healthy Environment.

 Environmental policy recognizes that the species and their variants

have the right to continue existing, and are, or may be, useful now

and/or for generations to come.

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 Cont’d…
 The Biological Diversity Convention of 1992, in which Ethiopia has
ratified recognizes the intrinsic value of the environment, including
ecosystem and species or its components which in turn led to the issue of
awarding rights to subjects other than man, shifts the position of the law
once more to the ecocentric.
 Generally, the position of Ethiopian environmental laws and policies
is not clear whether it is anthropocentric or ecocentric.
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Anyways, it can be agreed that

 Bestowing legal personality to the environment so long as it does not

go against the rights of human beings whose interests are maintained
by the exercise of personal and citizen standing.

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 Standing and Public Interest Litigation

 In line with the constitutional provisions, the Preamble part of the

Environmental Pollution Control Proclamation also provides that the
protection of the environment, in general, and the safeguarding of
human health and well-being, as well as the maintaining of the biota
and the aesthetic value of nature in particular, is the duty and
responsibility of all.
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 Cont’d…

 According to the above legal provisions, to have a full-fledged legal

standing the general or collective interest to live in a clean and
healthy environment could as well become a personal interest.

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Public Can Bring an action by basing on article 37 of FDRE Constitution.

1. Everyone has the right to bring a justiciable matter to, and to obtain a

decision or judgment by, a court of law or any other competent body with

judicial power.

2. The decision or judgment referred under sub-article 1 of this article

may also be sought by:

B. Any group or person who is a member of, or represents a group with

similar interests. 73
Vested Interest

Is the person is required to show vested interest to institute a claim as

provided under Art.33 of the Civ. Pr.Code?

Is the person is needed to be a member of victims to institute a claim

as required under Art. 38 of Civ.Pr.Code.

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 Article 11 of EPCP of Ethiopia

Any person shall have, without the need to show any vested interest, the
right to lodge a complaint at the authority or the relevant regional
environmental agency against any person allegedly causing actual or
potential damage to the environment.

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Article 35(10) of the Bio-Safety Proclamation

Any person, group of persons, or any private or state organization may be entitled to
bring a claim and seek redress in respect of the breach or threatened breach of any
provision of environmental law:
a. in that person’s or group of person’s interest;
b. in the interest of , or on behalf of, a person who is, for practical reasons, unable
to institute such proceedings;
c. in the interest of, or on behalf of , a group or class of persons whose interest are
affected;
d. in the public interest; and
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e. in the interest of protecting the environment or biological diversity.
 Reading Assignment

Action Professionals’ Association for the People

[APAP] vs EPA

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 REMEDIES FOR ENVIRONMENTAL DAMAGES

While remedies are very much a case-specific, and turn on the nature of
the violation and the prayer for relief in the case, courts tend to give
priority to the following kinds of remedies in environmental cases:
1, injunctive relief to halt the harmful activity;
2, damage to compensate for harm suffered;
3, orders of restitution or remediation;
4, sanctions to punish the wrongdoer and to deter future violations; and
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5, awards of costs and fees

 Guidelines for Assessing Sanctions in Environmental Cases

 Seriousness of the offence

 Ability to Pay

 Economic gain by avoiding or misdoing

 Polluter pays

 Abatement costs
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Extracontractual Liability

 e.g.Nuisance: Article 33(2) of the Civil Procedure Code and Article

2091 of the Civil Code.

Criminal Liability
 Article 414 and 519 of Criminal Code
 EPCP Article 12 and 16
 EIAP Article 18
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