Brain Dump

Environmental Law

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law

The area of law that seeks to manage human impacts on the [see page 4, environment].

There's a general tension between whether the environment should be protected because it's inherently useful or only so far as the environment is useful to us. The rightness of environmental law is a matter of power and political persuasion.

See [see page 6, sources] of environmental law.

Principles

Is based on [see page 5, four] main principles.

Precautionary

If there's a strong suspicion that an activity may have environmental harmful consequences it is better to control it now, rather than wait for scientific evidence.

Lack of scientific evidence cannot restrict acceptance of laws mitigating environmental harm.

Preventative

Preventing environmental harm is better than reacting to it. Laws should be put in place to prevent harm rather than after the harm has already happened. For example a law mandating the disposal of nuclear material can be instated, even if no nuclear material has lead to environmental harm in the past.

Polluter Pays

Most harm is inflicted not on the perpetrators of pollution, but perhaps users of the product. An oil company that pollutes the ocean is harming fisherman, but not it's own profit margins.

This principle essentially holds polluters accountable for their environmental pollution. Example if a nuclear plant produces radioactive material, their responsible for properly disposing of it.

Proximity

Waste should be disposed of near it's creation. This is partially to prevent waste from one location potentially leaking in a bunch of other places.

Environmental control

Trying to [see page 7, limit] harm by preventing, minimising or rendering harmless emissions to the environment.

Command and Control

Specify what constitutes a [see page 8, violation] and what the consequences are. We create standards by statutes + legislation and their enforced by environmental agencies.

Standards are generally geared towards the recieving environment (eg. you can't cause this much of a disturbance to the livelihood of aquatic life) or from the source of the emission (eg. your car can't release more than this much carbon monoxide).

Controls can be instituted before & during operations (requiring licensing/permits or prohibiting certain courses of actions) or after the operation (eg. you've contaminated this land, clean it up :P).

This approach is [see page 9, criticised] because:

  1. It interferes with the market.
  2. Ignores domain specific knowledge of the polluter
  3. Expensive to maintain by the state
  4. Doesn't encourage polluters to do more than meet a basic requirement.

Economic Instruments

Fines polluters in proportion to the amount of pollution they produce or otherwise charges people to incentivise not polluting (eg. charge for plastic carrier bags to reduce usage). Another charging approach is asking permit holders to share their records of pollution, those that're less transparent are charged more (because they need to be monitored).

Alternatively you can give grants to companies that're economically green, reducing costs of products.

Alternatively you can create a market for pollution credits. You earn credits which allow you to pollute. For eg. an area is allocated a certain number of pollution credits and then firms have to bid for these credits to pollute upto that total.

Private Voluntary Instruments

Companies willingly commit to mitigate their environmental harm either to take advantage of oncoming standards or for good PR.

In some cases a voluntary agreement may require accreditation by a third party to ensure they confirm to it. Eg. ISO 14001 or Forest Stewardship Council.

Criminal & Civil Laws

Basically classify some kinds of pollution as a crime. This generally first requires the classification what kinds of pollution is (or is not) allowed. For example the 1993 clean air act forbids emission of black smoke, but other smoke is alright?

There's also civil suits through the tort of negligence brought from those directly harmed by environmental pollution.

Environmental Permits

You must obtain a [see page 3, permit] before using a regulated (installations, mobile plant, radioactive) facility. Certain waste and recycling operations do not classify as regulated (to incentivise regulation.)

Governed by Environmental Permitting Regulations 2016 (EPR).

To apply for a permit the operator (not owner) of the facility must send an application. Permits are granted depending on the see page 4, classification of the facility and a single permit may be shared between multiple facilities.

Permits are granted if the facility meets required levels of protection and the operator is competent enough to oversee such a facility while complying with the permit.

For A class applications the regulator must place applications on a public register where consultants who can be affected by, or are interested in, the application can raise any considerations.

Types of Permits

Regulators can [see page 5, classify] a permit as bespoke (tailored to a specific facility, while maintaining compatibility with existing mandates) or standard permits (which cannot be contested).

Standard permits generally relate to a specific purpose (eg. waste management) and the conditions and obligations of the permit are established well in advance of the application. Bespoke permits are for complex installations where multiple activities are carried out in the same location.

Rejection of a bespoke permit can be contested, but not a standard one (because the conditions of a standard permit are known in advance).

Once an activity with an associated permit is stopped, the course of action for the regulator depends on the [see page 6, classification] of the facility.

Waste Management

Waste management is [see page 8, defined] as the deposit, treating, keeping or disposing of controlled waste.

Waste is defined as something that has been [see page 7, discarded]. For example if I had a gold ingot and threw it away, that's waste, even if someone else may see some value in it.

Waste Duty of Care

A [see page 9, duty] imposed on those who imports, produces, carries, keeps or disposes of waste. A failure to meet this duty can lead to prosecution even if no harm occurs.

Libaility

Regulatory

Powers given to the regulator which do not cross into criminal offences. This includes a see page 11, breach of permit or see page 12, statutory nuisance.

Criminal

Violations which can result in [see page 13, criminal] action, this can include regulatory offences but also environment offences not directly covered by the above.

Consequences:

  • Fine from magistrates court ranging from £20,000 up to £50,000 and upto a 6 month imprisonment.
  • The crown court can give an unlimited fine and upto 2 years in prison.
  • Court may also demand remedial work to undo the harm at offenders expense.

Civil

[see page 15, Action] brought from one private individual/company to another. This includes the tort of negligence, nuisance and/or trespass. At statutory-law this extends to any property damage caused by a breach of the waste duty of care.

Case Studies

[see page 3, Buncefield Fire]

Tank 9102 at Buncefield oil storage deposit was filling with petrol. Pipeline was maintained by multiple companies. One of the gauges indicating when it should be full was failing and the tank was filling to dangerous levels.

What happened?

  1. Oil overflowed
  2. Vaper cloud was produced
  3. It ignited causing a fire and leading to a blast.
  4. This caused other containers to leek out into the local reservoir.

See [see page 17, legal-liability].

Levy V Environment Agency

EA granted a variation of the permit to allow the use of scrap tires as a substitute of the fuel to a local cement works.

Levy (lived nearby) brought a judicial review against the EA and argued that the permit did not consider best practice. But court decided, due to the high amount of scientific knowledge and expertise, they should be slow to interfere with the decision.

This shows that courts are generally unlikely to interfere with a regulators decision towards the technical issues of a decision.

Palin Granite (2002)

Store used stone for possible later usage. This stone is classified as waste because it's no longer actively used.

Van de Walle (2005)

Petrol leaking from underground filling tanks was classified as discarded and therefore waste. Even if it was unintentional the holder is still responsible for it.

OSS group v EA

OSS Group collects waste oil treats it and then re-sells it as waste. After treatment the oil is no longer classified as waste therefore it no longer needs to be handled and stored according to the waste management regulations.