Review of European, Comparative & International Environmental Law

Publisher:: Wiley
Publication date:: 2021-02-01

ISBN:: 2050-0386

Issue Number

Latest documents

A Legal Framework for a Transnational Offshore Grid in the North Sea by Hannah Katharina Müller, Published by Intersentia, 2016, 416pp., £138, hardback.
Issue Information
The many faces of strict liability in Indonesia's wildfire litigation
Since 2013, the Indonesian Ministry for the Environment and Forestry has sued several timber and oil palm plantations for fires that have occurred within concession areas. These government lawsuits are important, not just for reducing the number of fires in Indonesia, but also for galvanizing a significant development of the nation's law of civil liability for environmental damage. In these cases, the government has attempted to ground its suits in two types of liability, namely the liability for an unlawful act and strict liability. The article observes some inaccurate interpretations of strict liability in wildfire litigation, where the liability rule is considered as part of the liability rule for an unlawful act, and as a liability rule resulting from the application of the precautionary principle in a fault‐based liability rule. The application of strict liability starts with the identification of whether a defendant's activity can be considered an abnormally dangerous activity. The article finds that activities related to the clearing and drainage of peatlands are abnormally dangerous because they significantly increase the risk of fires and constitute an unnatural use of land. It concludes that the application of strict liability to wildfires is defendable in so far it can be proven that the defendant has previously conducted the clearing and drainage of peatlands.
Variations on the same theme: Environmental objectives of the Water Framework Directive in environmental permitting in the Nordic countries
The Court of Justice of the European Union's (CJEU) interpretations on the normativity of the Water Framework Directive's (WFD) environmental objectives and derogation for new, important activities clarified certain long‐standing discussions on these matters in the Nordic countries. The WFD's legal narrative formally changed from a planning framework for gradual improvement of water quality in the European Union to one of legally binding character for the environmental objectives. This simultaneously increased the interest for the circumstances under which a derogation from the environmental objectives is applicable for certain new activities. Both of these matters are integrally connected to the authorization of activities under national environmental permitting legislation. This article explores how and to what extent the WFD's environmental objectives are given legal effect in national environmental permitting in Sweden, Finland and Denmark. Although the Nordic countries have chosen different approaches when implementing the WFD, they have all largely kept these legal frameworks separate; legislation establishing a system of river basin management planning pursuant to the WFD on the one hand, and environmental permitting legislation on the other. The article points out certain crucial questions on the reconciliation of these legal frameworks and the development of national legislation as triggered by the CJEU case law. Regarding the provisions implementing the possibility to derogate for new and important activities, the article discusses certain lacking and flawed legal linkages between river basin management planning and environmental permitting in the three countries.
Dancing like a toddler? The Green Climate Fund and REDD+ international rule‐making
REDD+ is a mechanism developed under the United Nations Framework Convention on Climate Change (UNFCCC) to reduce deforestation and associated greenhouse gas emissions in developing countries. The UNFCCC has envisaged the Green Climate Fund (GCF) to play a key role in coordinating and supporting REDD+. With the GCF's foundations in place, this article reviews the GCF's role as a rule‐maker for REDD+. The analysis of GCF policies and their relationship with guidance from the UNFCCC Conference of the Parties (COP) reveals that the Fund has complemented, adjusted and further developed COP guidance with considerable autonomy. This is surprising in the light of the Fund's strong relationship with the UNFCCC, coupled with the fact that the same UNFCCC country parties are represented in the GCF's main decision‐making body. Such self‐directed regulatory activity may evince the GCF's intention to leave a long‐lasting impact in the fragmented financing landscape for REDD+ implementation.
Summer loggings and bird protection: On regulation and derogations
Forest loggings during the nesting season are increasing in Finland. The aim of this article is to evaluate how current regulation applies to summer loggings, paying special attention to the protection of birds. The European Union Birds Directive and the Finnish Nature Conservation Act prohibit the deliberate killing and disturbance of birds. Regardless, it seems that in practice none of these rules is applied to birds and summer loggings as forestry is not considered ‘deliberate’ killing or disturbance, even if thousands of birds are killed in summer loggings every year. European biodiversity targets and the principle of minimizing harms would emphasize implementing and monitoring existing national law and soft law more actively than currently is the case.
Fostering environmental democracy in Latin America and the Caribbean: An analysis of the Regional Agreement on Environmental Access Rights
Principle 10 of the 1992 Rio Declaration laid the groundwork for the implementation of access to environmental information, public participation and access to environmental justice, which constitute the three pillars of environmental democracy. The 2012 United Nations Conference on Sustainable Development marked a turning point in this evolution as Latin American and Caribbean (LAC) countries launched the negotiations for a treaty embodying these environmental rights. This process resulted in the adoption of the Regional Agreement on Environmental Access Rights (RAEAR) in March 2018. This presents a unique opportunity to reflect not only on the RAEAR but, more broadly, on the implementation of environmental rights in international environmental law. The article first addresses the question of the delayed implementation of environmental democracy rights in LAC. It then critically analyses the RAEAR provisions and the lessons to be learned from the negotiations. Finally, the article underlines outstanding challenges in the implementation.
Interpreting States’ general obligations on climate change mitigation: A methodological review
A variety of norms in international and domestic law imply that States have a general obligation to mitigate climate change (e.g. no‐harm principle, obligation to protection of human rights, public trust doctrine). Yet a major methodological difficulty is faced when interpreting this general mitigation obligation: how to determine the requisite level of mitigation action? This article identifies and discusses various methods for the interpretation of States’ general mitigation obligations in light of domestic cases. On the one hand, a top‐down approach seeks to determine a State's requisite mitigation action in the light of a global objective on climate change mitigation and of effort‐sharing criteria. On the other hand, bottom‐up methods put emphasis on the demand for internal consistency, on the obligation for a State not to downplay its contribution to environmental impacts unfolding beyond its territory, and on various emerging transnational standards. The article argues that the top‐down and bottom‐up approaches enable a sound interpretation of States’ general mitigation obligations especially when these approaches are used in combination.
Environmental vulnerability, age and the promises of anti‐age discrimination law
Discussions on equality between age groups and the practice of anti‐age discrimination law often tend to focus on the rights of the elderly on the labour market. This article is motivated by the current climate change cases, which emphasize broader age inequalities. It aims to highlight the unexplored potential of anti‐age discrimination law. Moreover, it explores the possible added value of this law when other legal ways to defend environmental rights are considered. Anti‐age discrimination law could thus offer a meaningful and effective ground to address age‐related environmental vulnerabilities.
Regulation of The Upstream Petroleum Sector: A Comparative Study of Licensing and Concession Systems edited by Tina Hunter Published by Edward Elgar, 2015, 392 pp. + xxxiii, £115, hardback.