State bottle-return laws in the United States are an example of environmental regulations in action. iStockphoto/Thinkstock
The success of environmentalists’ efforts is often measured in terms of the laws that they help create. The vast field of environmental law encompasses the principles and policies enacted by local, national, and international entities to regulate human treatment of the nonhuman world. The field covers a broad range of topics in diverse legal settings, such as state bottle-return laws in the United States, regulatory standards for emissions from coal-fired power plants in Germany, and international treaties for the protection of biological diversity and the ozonosphere. During the late 20th century, environmental law developed from a modest outgrowth of the law of public health regulations into an almost universally recognized independent field protecting both human health and nonhuman nature.
Environmental law exists at many levels and is only partly established by international declarations, conventions, and treaties. The bulk of environmental law is statutory—that is, encompassed in the enactments of legislative bodies—and regulatory—that is, generated by agencies charged by governments with protection of the environment.
State bottle-return laws in the United States are an example of environmental regulations in action. iStockphoto/Thinkstock
Many countries have included some right to environmental quality in their national constitutions. Since 1994, for example, environmental protection has been enshrined in the German Grundgesetz (“Basic Law”), which now states that the government must protect for “future generations the natural foundations of life.” Similarly, the Chinese constitution declares that the state “ensures the rational use of natural resources and protects rare animals and plants.” 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.” Bulgaria’s constitution provides for a “right to a healthy and favourable environment, consistent with stipulated standards and regulations.” The Chilean constitution contains a “right to live in an environment free from contamination.”
The German Grundgesetz (“Basic Law”) maintains that the government must protect the environment for the sake of future generations. Shutterstock.com
Much environmental law also is embodied in the decisions of international, national, and local courts. Some of it is manifested in arbitrated decisions, such as the Trail Smelter arbitration (1941), which enjoined the operation of a smelter located in British Columbia, Canada, near the international border with the U.S. state of Washington and held that “no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein.” Some environmental law also appears in the decisions of national courts. For example, in Scenic Hudson Preservation Conference v. Federal Power Commission (1965), a U.S. federal appeals court voided a license granted by the Federal Power Commission for the construction of an environmentally damaging pumped-storage hydroelectric plant (that is, a plant that would pump water from a lower to an upper reservoir) in an area of stunning natural beauty, demonstrating that the decisions of federal agencies could be successfully challenged in the courts. Significant local decisions included National Audubon Society v. Superior Court (1976), in which the California Supreme Court dramatically limited the ability of the Los Angeles to divert water that might otherwise fill Mono Lake in California’s eastern desert.
A ruling by the California Supreme Court in 1976 dramatically limited how much water the city of Los Angeles could redirect from Mono Lake. Shutterstock.com
Although numerous international environmental treaties have been concluded, effective agreements remain difficult to achieve for a variety of reasons. Because environmental problems ignore political boundaries, they can be adequately addressed only with the cooperation of numerous governments, among which there may be serious disagreements on important points of environmental policy. Furthermore, because the measures necessary to address environmental problems typically result in social and economic hardships in the countries that adopt them, many countries, particularly in the developing world, have been reluctant to enter into environmental treaties.
Many areas of international environmental law remain underdeveloped. Although international agreements have helped make the laws and regulations applicable to some types of environmentally harmful activity more or less consistent in different countries, those applicable to other such activities can dramatically differ. Because in most cases the damage caused by environmentally harmful activities cannot be contained within national boundaries, the lack of consistency in the law has led to situations in which activities that are legal in some countries result in illegal or otherwise unacceptable levels of environmental damage in neighboring countries. Since the 1970s a growing number of environmental treaties have incorporated provisions designed to encourage their adoption by developing countries. Such measures include financial cooperation, technology transfer, and differential implementation schedules and obligations.
The greatest challenge to the effectiveness of environmental treaties is compliance. Although treaties can attempt to enforce compliance through mechanisms such as sanctions, these measures are usually only somewhat useful. In part this is because countries may be unwilling or unable to impose the sanctions called for by the treaty. In general, the threat of sanctions is less important to most countries than the possibility that by violating their international obligations they risk losing their good standing in the international community.
Enforcement mechanisms other than sanctions have been difficult to establish, usually because they would require countries to cede significant aspects of their national sovereignty to foreign or international organizations. In most agreements, therefore, enforcement is treated as a domestic issue. This approach effectively allows each country to define compliance in a way that best serves its national interest. Despite this difficulty, international environmental treaties and agreements are likely to grow in importance as international environmental problems become more severe.
With virtually no environmental law enforcement, many maquiladoras have been free to pollute surrounding areas. Stephen Ferry/Getty Images
The problem of enforcement across international borders became particularly critical with the adoption of free trade agreements beginning in the early 1990s. The North American Free Trade Agreement (NAFTA), for example, resulted in the creation of large numbers of maquiladoras—factories jointly owned by U.S. and Mexican corporations and operated in Mexico—inside a zone extending 60 miles (100 kilometers) south from the U.S.-Mexican border. Because Mexico’s government lacked both the resources and the political will to enforce the country’s environmental laws, the maquiladoras were able to pollute surrounding areas with relative freedom, often dumping hazardous wastes on the ground or directly into waterways, where they were carried into U.S. territory. Prior to NAFTA’s adoption in 1992, the prospect of problems such as these led negotiators to append a so-called “side agreement” to the treaty, which pledged environmental cooperation between the signatory states. Meanwhile, European concerns about the apparent connection between free trade agreements and environmental degradation fueled opposition to the Maastricht Treaty, which created the European Union and expanded its jurisdiction.
