Environmental Principles: From Political Slogans to Legal Rules, By Nicolas De Sadeleer, Oxford: Oxford University Press, 2nd edn, 2020, 592 pp

• Published date: 01 April 2023
• Author: Caroline E. Foster
• Date: 01 April 2023
• DOI: http://doi.org/10.1111/reel.12470

BOOK REVIEWS

Environmental Principles: From Political

Slogans to Legal Rules

By Nicolas De Sadeleer, Oxford: Oxford University

Press, 2nd edn, 2020, 592 pp

Caroline E. Foster

New Zealand Centre for Environmental Law (NZCEL), University of Auckland,

Auckland, New Zealand

Correspondence

Caroline E. Foster, New Zealand Centre for Environmental Law (NZCEL),

University of Auckland, Auckland, New Zealand

Email: c.foster@auckland.ac.nz

This valuable second edition of Nicolas De Sadeleer's classic 2002

work is timely. The book's systematic and insightful discussion will

assist all actors and institutions in dealing with the imperative climate

challenge and taking critical steps in biodiversity protection. Readers

from the common law world will derive particular benefit from the

publication's comparative dimensions. Written by a civil lawyer, the

book incorporates considerable content from the European civil law

systems as well as from European Union (EU) law.

Adopting the same structure as the first edition, Part I of the book

addresses three core environmental law principles: The polluter pays

principle, the principle of prevention and the precautionary principle.

Part II explores their part in the shift from modern to postmodern law,

drawing on the French language literature on postmodernism. De

Sadeleer's central thesis is that the principles assume a particular and

novel status as ‘directing principles’of environmental law, making a

unique contribution in the context of this transition, bringing

much-needed rationality and stability to contemporary law.

The three environmental principles were selected as the focus of

the book in both its first and second editions from a long list, including

the principles of common but differentiated responsibility, ecological

integrity, common heritage, ecological solidarity, equitable and

reasonable utilization, sustainable use, inter-generational equity,

environmental protection, integration, non-regression, cooperation,

remediation, proximity and waste minimization. The reason for

choosing these three principles lies partly in their explicit or implicit

recognition across international, EU and national law. They also

‘complement’one another (at 11), while reflecting a three-stage

evolution in how environmental law approaches humanity's

detrimental effects on nature, from a curative approach to a

preventative approach to an anticipatory approach. The curative

model has tended to focus more on recognition of wrongs and

reparation between individuals and communities, consistent with the

theory of good neighbourliness (théorie des troubles de voisinage),

described by De Sadeleer as a ‘precursor’to environmental law

(at 26). The limits of the curative model are rapidly reached, with the

environment becoming the victim when damage goes unrepaired and

its capacity to absorb pollution is exceeded. The preventive model

therefore seeks to forestall harm, including irreversible harm, but is

undermined by its reliance on science. The reality is that scientific

knowledge is only slowly expanding into complex areas including

biology and ecology and the effects of human activity on our

atmosphere. The anticipatory model underpinning the precautionary

principle therefore becomes essential.

As for each of the chapters on the three principles, De Sadeleer

begins his chapter on the polluter pays principle with a disc ussion of the

principle's origins, then offering a systematic analysis of the principle,

coverage of its application and concluding remarks. The polluter pays

principle has a curative orientation, while cost-internalization and redistri-

bution are among the principle's central functions. The principle also has

a limited preventive function, envisaging compensation for pollution even

where the pollution is legally authorized. Both the principle's curative and

preventive functions call for greater development, including through tort

law. Redoubled efforts are needed to deal with restrictions on the

principle's effectiveness stemming from the ambivalence of the concepts

of ‘pollution’,the‘polluter’and the ‘payer’, especially in complex sys-

tems of production. Establishing the level of payment is also problematic

in light of the intrinsic value of natural features. As De Sadeleer asks:

‘what price can we attach to air, water, plants, and wildlife?’(at 53).

As to civil liability for environmental harm, requirements to

establish fault—based on the breach of statutory provisions or

regulationsor a general duty of care—and causality maymake recovery

difficult and thus impede the principle's implementation. De Sadeleer

holds thattheories of causalityrequire to be reconsideredin the context

of harm caused by themultiple actions of many actors,accompanied by

a refinement of the rules for identifying liable parties in strict liability

cases—one option being to channel responsibility to those with control

over an activity. However, overall, the polluter pays principle has com-

pelled a striking degree of recognition (includingin Article 191(2) of the

Treaty on the Functioning of the European Union (TFEU) and in Direc-

tive 2004/35 on environmental liability) and is implemented through

various environmental taxesand charges as well as environmental stan-

dards. Ultimately, though, the problem remains that the polluter pays

principle may create, and be viewed as creating, an entitlement to pol-

lute, as isthe case with industry compensation schemes.

Prevention is a rule of customary international law.

1

Addressing

the origins of the principle, De Sadeleer traverses ground that is

1

See also the analysis of the precautionary principle as a rule of customary international law

(at 464–469).

DOI: 10.1111/reel.12470

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