Environmental Liability - Law, Policy and Practice - Volume 25 - Issue 2

The regularisation of environmental impact assessments in the case law of the European Court of Justice
AGUSTÍN GARCÍA URETA, University of Basque Country, Bilbao

After more than thirty years since the adoption of Directive 85/337, of 27 June 1985, on the assessment of the effects of certain public and private projects on the environment, environmental impact assessments (EIA) can be regarded as a well established prevention technique in the European Union (EU). This comprehensive article examines the regularisation of environmental impact assessments in the case law of the European Court of Justice whilst considering the regularisations, time lapses for challenging projects and the right to compensation.

Refining the approach to small business liability for environmental damage
BLANCA MAMUTSE, Liverpool John Moores Law School
Discussions concerning business liability for the environment have traditionally centred on the role of large corporations. This is consistent with the extensive reach and impact of their activities. The vast majority of incorporated entities in the United Kingdom are small private companies, and thus collectively attract a substantial share of prosecution activity for environmental offences. This article contrasts the positive effects of criminal sentencing for environmental offences on the management of large companies, with the difficulty of attaching liability to the controllers of small companies. Recent developments in the field of company law have exposed a faultline in the scope for imposing personal liability on legitimate small business operators, raising the broader question whether an improved approach to criminal sentencing is as pertinent to such businesses as they are to large businesses and illegal operators. This paper argues that these improvements should be more strongly complemented by support for such businesses to avoid non-deliberate breaches of the criminal law.

What shape for the Paris mechanisms? A synthesis of parties’ submissions on Article 6 of the Paris Agreement
WOLFGANG OBERGASSEL, Wuppertal Institute for Climate, Environment, Energy

Article 6 of the Paris Climate Agreement establishes three approaches for countries to cooperate with each other in implementing their climate protection contributions. However, Article 6 sketches out only some basic contours, the details are to be filled in by further negotiations. This papers surveys the views countries have submitted so far in order to identify the main issues at stake, points of controversy and convergence and possible ways forward. The submissions reveal some sharp differences in opinions on key issues such as the scope of the new mechanisms, how to operationalize the Article 6 requirement to increase ambition, whether to have international provisions on the promotion of sustainable development, and how to protect environmental integrity in the use of Article 6. The article concludes with a number of recommendations on how to address these controversies. 

As above, so below: reconciling the natural world and human rights in Canada
MARGHERITA PAOLA POTO, Jebsen Centre for the Law of the Sea, Norway

The article offers an overview of the current legal debate in Canada on the constitutional coverage to environmental rights, intended as the rights that are to be shared in equal measure by the natural world and the human communities, with a consequent set of duties for public and private parties to protect them, as well as set of responsibilities in case of their infringement. The study is structured into two parts: Part I of the contribution deals with the “why” to embark in a constitutional reform and Part II deals with the “how” to do it. Consequently, Part I analyses the pros and the cons of the environmental rights’ constitutional enshrinement, first by describing the current legal situation in Canada when it comes to environmental protection and second by referring to some virtuous cases where the environmental rights have been successfully included in the constitutional framework and are in the process of being implemented (Norway, Bolivia, Ecuador)

Restorative justice: a legally binding instrument to implement our ecological duties
GIULIA PAROLA, Universidade Federal Fluminense, Brazil

While an increasing cycle of environmental disaster and degradation, loss of ecological integrity and environmental damage and pollution from humans seem to be the general rule for a world gone astray, at the same time there are emerging signs that many individuals and different groups of people are trying to find a “way out” from the environmental unfriendly manner to live and use the Planet Earth. The researches on Ecological Duties (ED), on the ways to implement them and on how to construct an ecological society are some examples of this emerging effort This paper considers whether or not Restorative Justice might be a useful tool in implementing the ED and orientating individuals to environmentally friendly behaviours.

Case Commentary
Court of Appeal holds landowner liable for spread of Japanese knotweed

Current Survey

European Union
MARTIN HEDEMANN-ROBINSON University of Kent, Canterbury

Key Policy Developments July–August 2017

Marine Environment
EU Environmental Legal Issues.
Enforcement Issues July–August 2017
Air Quality.
Nature Protection.
Environmental Liability Directive.
Noise Pollution.
EU Environmental Legislation Update.