DEPARTMENT OF PUBLIC POLICY

POL 661: Environmental Law

Lecture 12: Global Environmental Law Introduction
So far in this course we have focused our attention on the common and statutory laws that apply to protection of the environment wholly within the United States. There is certainly enough to focus on within a single country because of the presumptions that go into the development of the law within that country.1 It is from these presumptions that our rights and obligations are defined; if we change these presumptions then we may be under a completely different set of rules (and thus legal frameworks). And it is these rules that ultimate define policy directions.2 In this module we begin to think beyond the borders of a single country and move into questions of international law related to the environment. It makes some sense to think about environmental law from an international standpoint because the more difficult environmental problems today are global in scale and thus require cooperation between countries when trying to develop solutions. For example, in 2007 when the U.S. Supreme
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For example, recall the presumptions we have in the United States about the democratic ideal and the distribution of private property rights regarding land use; this presumption is a key component to understanding the limitations placed on government when attempting to regulate for the public welfare and that regulation impacts our societal ideals regarding private property rights (particularly through the Fifth Amendment to the United States Constitution).
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For example, other countries do not believe in the distribution of private property rights in land to individuals living within that country. In some instances, the government has full rights of ownership over the property within its borders and is thus capable of making more unilateral policy decisions that can have a substantial impact on private citizen interests. Thus, the differences among countries in how they apply their domestic laws are connected to the history of the development of the rule of law in those countries. Knowing the different histories and development of law within these countries is referred to as comparative international law.

Page 2 of 9 Court was deciding whether or not the Federal Environmental Protection Agency had an obligation to regulate carbon under the Clean Air Act as a pollutant,3 the government (under President Bush at the time) was arguing, in part, that it should not have to regulate carbon because, even if it did, the regulation would have limited impact because other countries continue to use carbon in their development (like China and India) thus negating any benefit from regulating carbon in the United States.4 This kind of argument highlights the issues that surround global environmental law; because many of todays environmental problems span the boundaries of single countries, what kinds of legal mechanisms are available to help solve environmental problems that are the common enemy of all citizens and countries of the world?5 Our goal in this module is to gain a sense of these legal mechanisms and how they might apply to help resolve global environmental issues.

Global Environmental Law Overview

To bring us conceptually back to the fundamental concepts surrounding environmental law, recall the following figure representing the relationship between our environment, social institutions, and economic activity:

The Court was actually deciding whether EPA had a mandatory obligation under the CAA to decide whether or not to regulate carbon as a pollutant. At that time EPA was simply not choosing to whether or not it would include carbon as a pollutant. So the legal issue was really whether or not EPA had discretion to not decide on whether or not carbon was a pollutant as defined under the CAA.
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The basis of the lawsuit in Massachusetts v. EPA (2007) was that coastal states (including Massachusetts) were loosing public property rights due to sea level rise brought on by global warming, which is being caused in large part by the human emissions of carbon dioxide into the atmosphere. Thus, the coastal states were arguing that the federal government (via EPA) had an obligation to regulate carbon as a pollutant under the CAA to help mitigate sea level rise. The governments argument, in part, was that even if it did regulate carbon domestically, that regulation would not stop sea level rise due to climate change because other countries would continue to emit carbon at increasing rates thus highlighting the global nature of the problem (and suggesting a global solution is required).
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All countries share a common interest in environmental issues that fundamentally alter background environmental conditions if, by altering those conditions, the capacity for human wellbeing is diminished. Indeed, if we identify human wellbeing as a major driver of policy initiatives across countries (why countries seek to become developed nations), then we can see the commonality amongst countries in desiring background environmental conditions that are stable (rather than dynamic and constantly changing) so that policy initiatives for growing prosperity amongst citizens can occur with the least amount of resistance from environmental conditions.

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The environment represents the constraining factor for social and economic development. Starting from this presumption, we can expand our concept of society and economic activity to a global scale; rather than focusing on the domestic society and economy of a particular nation, we can think about the role of the environment in supplying the necessary means by which a global society and global economy prospers, both today and tomorrow. In order to do this we need to account for the different members of our global society. For example, we often distinguish between developed and developing countries based on criteria regarding the advancement of a particular society. From an environmental standpoint, developed nations are often seen as countries that have utilized the environment in a way that has allowed the development and prospering of those countries at the expense of the environment.6 Developing nations are seen as countries that have yet to utilize environmental assets in the same manner and thus have yet to reach the same level of prosperity as developed nations.7

For example, developed nations have utilized hydrocarbons (coal, oil, gas) as a means of cheap energy production in order to fuel their industrialization and prosperity. One of the consequences of these actions has been to increase the carbon concentration in the atmosphere. This increased concentration has led to the phenomenon of climate change where the impacts are spread across the entire globe; the impacts are not confined to the developed nations.
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For example, developing nations have not fully engaged in industrialization. One argument is that, from an equity standpoint, it is wrong to suggest developing nations cannot use hydrocarbons in the same manner as developed nations in order to become developed themselves. Thus, developing nations have a right to use such cheap methods of energy production in order to also create wealth and prosperity for their respective inhabitants. A counter to this argument is that technological advances allow for newly developing countries to fast forward their development by using alternative sources of energy inputs for growth purposes. Some argue the equity can be achieved by encouraging technology transfer between developed and developing nations so

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The question, then, becomes one of how to create fair and equitable legal frameworks for the global community that allow for developing nations to prosper and advance themselves while also allowing developed nations to continue prospering, but doing all of this in a way that does not significantly impact background environmental conditions (the constraining factor for global wellbeing). In order to accomplish this goal we look to form agreements in the international community that bind all nations in a common legal framework so that environmental goals can be met. This is where global environmental law comes into play. What legal mechanisms are implemented at the global level to solve environmental problems? Are they different from national (domestic) legal mechanisms? How does one enforce a law against another nation? These questions are all the purview of global environmental law.

Subsets of Global Environmental Law

There are three main subsets of global environmental law: International Environmental Law: Law that is applicable to more than one country. Extraterritorial Application of National Environmental Law: The law of an individual country, which may have an effect on other countries. Comparative Environmental Law: Compares two individual nations, asking how each nation, using its own national law, deals with the same or similar legal issue.

International Environmental Law

International environmental law is a process of agreement between two or more countries that is formalized in either a written document, or more traditionally through custom. An international agreement that is between two nations is referred to as a bilateral agreement; an international agreement between more than two nations is generally referred to as a multilateral agreement. Whether bilateral or multilateral in nature, one of the hallmarks of international agreements is that they are always voluntary, meaning one country cannot force another country to become a member to an agreement against their will. This is due to the legal principle of sovereignty, which holds each nation is a free state and cannot be ruled by another (unless they are taken over by force). The issue of sovereignty brings up an important question: to what degree does sovereignty limit the capacity to find agreement on environmental concerns between nations? Some argue that sovereignty makes international agreement difficult (and sometimes near impossible) on issues of global environmental concern because of the development can occur in ways that limit potential harm to background environmental conditions.

Page 5 of 9 nature of environmental issues with global reach. For example, a small island nation may be experiencing significant impacts due to sea level rise brought on by climate change.8 As such, these nations may prioritize global limits on carbon emissions and seek an international agreement on such emissions. Other nations, however, may not prioritize sea level rise because of a desire to continue cheap economic development fueled by hydrocarbons. Because these nations might have greater adaptive capacities over small island nations to deal with sea level rise (for example, the capacity to move inland), they might not share the same concerns (and thus priorities) of the small island nation. This difference in priorities is one reason why global environmental agendas are limited through sovereignty; the ability of nations to simply defect from a proposed international agreement diminishes the potential of such agreements. Even with such limitations there are examples of successful development and implementation of international environmental agreements. Examples of international environmental agreements include the Kyoto Protocol and the Montreal Protocol. The Kyoto Protocol (Protocol refers to an amendment in international law nomenclature) was passed in 1997, and set the stage for the current global cap-and-trade program that is being instituted mostly in Western Europe. It was ratified and went into full effect in 2005 (when Russias ratification of the agreement brought it into full force). The U.S. signed the Kyoto Protocol in 1997 under the Clinton Administration. However, that same administration failed to present the Protocol to Congress for ratification (for political reasons). When President Bush took office in 2000, he withdrew the U.S. signature of the agreement. Thus, we are not signatory member of the international agreement on climate change (at least the carbon emissions reduction program), even though the United States remains active in its participation. Recent updates to the UN Convention on Climate Change in Mexico (2010) and South Africa (2011) indicate countries are more willing to engage in monetary commitments to mitigate and adapt to the impacts of climate change then otherwise engaging in substantial limitations on the current use of carbon-based energy sources as a means of growing domestic economies. The European Union stands as an exception where this bloc of European countries has been continually pushing to meet carbon reduction requirements that were initially agreed to in 2005. The issue has moved from one of reducing total carbon emissions to one of reducing carbon intensity within the countries, or otherwise allowing total emissions to grow while reducing the intensity of carbon usage on a per capita or similar basis. Another example is the Montreal Protocol (of which the U.S. is a signatory and full member through ratification). The Montreal Protocol was passed in 1987 as a means stopping the manufacture and use of chloroflorocarbons (CFCs) because recent scientific research had shown these molecules were responsible for diminishing the ozone layer. This layer is responsible for blocking much of the harmful ultra-violet (UV) radiation that is emitted by the Sun. Prolonged UV exposure can lead to skin irritation and cancer in
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Because of the characteristics of small island nations (small size, low-lying) they are particularly vulnerable to the impacts of sea level rise.

Page 6 of 9 animals including humans. One might ask why the Montreal was successful while the Kyoto was not (at least by the US). The true answer to this question is better served in an international course, but one simplification is Montreal dealt with one substance, CFC (where there was a ready-made alternative), while Kyoto deals with many substances, and the political-economic effects of Kyoto are far-reaching.

Extraterritorial Application of National Environmental Law

In previous work we discussed the National Environmental Policy Act (NEPA). Recalling NEPA applies to major federal actions, significantly affecting the environment; it requires a full environmental analysis of such actions prior to allowing the action to commence. NEPA has also been used outside the U.S. for actions taken by citizens or corporations of the U.S. that require federal permitting, and have the potential to harm the environment. NEPAs full application outside of U.S. soil is a legal question that is still in dispute, and will not likely be resolved anytime soon.9 Other laws mixed with consumer education have an effect on international trade. Consider labeling laws as a way to accomplish an environmental objective in combination with consumer education. In the 1980s the United States was at the forefront of marine mammal protection with a domestic law (the Marine Mammal Protection Act) that made it illegal in the U.S. to harass, hunt, or annoy marine mammals. One of the intended beneficiaries of this law was the Dolphin. However, tuna fishing in jurisdictions outside the United States were resulting in a number of dolphin deaths; the dolphins tend to swim above the tuna schools and were being caught in nets while the tuna were being harvested. A number of dolphins were dying in the process as they were drowned while the nets were slowly being pulled up toward the fishing vessel. The U.S. wanted to enforce its territorial law against fishers from other countries but could not do so directly. Thus, the U.S. instituted a ban against tuna imports that did not utilize dolphin-safe methods of fishing.10 The ban was found to violate international trade agreements (other international law) of which the U.S. was a signatory. Thus, in this case, an international law was preventing the U.S. from enforcing provisions of a domestic law to carry out a policy of marine mammal protection. So the U.S. could not ban imports of tuna from other countries, but it certainly could ensure accurate labeling of imported tuna in the U.S. Thus, domestic labeling laws were updated to include a dolphin-safe label that could only legally be used on cans where the tuna was proven to be caught using such safety measures. With the domestic law in place,
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For a detailed examination of applying domestic laws to shipping vessels (via flag state status) on the open ocean, please see here: http://works.bepress.com/chad_mcguire/23/
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The addition of escape holes near the top of the nets had proven to be a sound (and simple) technology allowing the dolphins to escape the nets while the tuna was being harvested.

Page 7 of 9 the only remaining element was consumer education. An educational effort ensued where consumers began to vote with their wallets. Tuna without the dolphin-safe label began to loose significant market share resulting in a voluntary change in industry standards adopting the dolphin-safe fishing methods. In the United States labeling of dolphin-safe tuna shut down an international tuna industry using unsafe netting methods by the mere fact that consumers simply chose to purchase only the dolphin-safe brand. Thus, countries that wanted access to the U.S. consumer market were financially driven to adopt the dolphin-safe fishing gear. This is a prime example of how policy objectives can be achieved by a mix of legal frameworks and public advocacy. The original move to ban tuna imports violated international law, so an alternative path was chosen that respected international agreements but focused on consumer choice as a means of creating change; this is an exemplar identifying how legal frameworks and consumer action can combine to achieve a policy goal.

Comparative Environmental Law

Comparative environmental law seeks to find the sources of environmental law from different countries, and compare the effects of such laws. In essence, one looks to the body of law in Country A on a subject and then compares it with the body of law in Country B. Similarities and distinguishing characteristics are noted. Through this process one can gain deeper insights into the relative means by which policy goals and objectives can be achieved. For example, is it more or less likely for Country A to be capable of addressing an environmental concern based on its body of law than Country B? One means of comparing between bodies of law (and the relative merits between countries) is determining the source of environmental law in various countries. In order to understand this source of law comparison, recall our hierarchy of laws pyramid, recreated here:

Page 8 of 9 As already stated, the Commerce Clause is the source of environmental law in the U.S. Alternatively, the European Union (EU) has adopted a specific constitutional provision that gives them power to deal directly with environmental issues. Implications are likely the EU can go farther than the U.S. in adopting encompassing environmental regulations. The reason why is the Commerce Clause is an imperfect source for protecting the environment simply because it does not speak directly to the environment. Rather, the Clause regulates commerce between the states (interstate commerce). Environmental issues often arise as subjects of interstate commerce (such as the regulation of carbon as a pollutant under the Clean Air Act: carbon results in climate change, a phenomenon that impacts interstate commerce) and this is clearly how the federal government establishes jurisdiction in many cases.11 However, there are instances where the federal governments ability to protect the environment is limited. For example, the SWANNC case deals with the attempt by EPA to regulate wholly intrastate bodies of water under the Clean Water Act (small ponds with no hydrologic connection to rivers, etc.). The U.S. Supreme Court held the EPA does not have jurisdiction under the CWA because it has no connection to interstate commerce (where jurisdiction resides).12 It would be much easier for the United States to regulate on behalf of the environment if it had the right to do so under a constitutional provision like the European Union. Thus, in a comparative law sense, it may be easier to regulate the environment under EU law because the source of power to regulate on behalf of the environment is both constitutional and direct (derives from the environment rather than commerce). Another example may be the litigation process itself. As shown in previous weeks, the U.S. system allows for direct litigation of environmental harms (through negligence claims for example). China does not have a direct litigation route for such issues, but rather favors a mediation process that favors the collective benefit over individual remedy.

Conclusion
Environmental issues viewed from a global perspective can be daunting. Getting sovereign nations to agree on a particular path is difficult, especially when that path is couched in economic prosperity. Major developing nations such as China and India are focused on continuing their economic development. Since climate change will remain the decisive environmental issue for decades to come, it will be interesting to see how
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Remember state governments can enact environmental protections for issues that occur wholly within the state.
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The Clean Water Act allows for the protection of the nations waters (interstate commerce connection). For a detailed look at this issue of interstate commerce applied to the Clean Water Act and federal jurisdiction please see the following: http://works.bepress.com/chad_mcguire/2/

Page 9 of 9 countries respond to growing threats brought on by climate change over time. Whether they will be more willing to adopt international agreements that comprehensively deal with major environmental issues remains to be seen. The United Nations Framework Convention on Climate Change has proven to be a mixed bag, where real commitments to prevent the impacts of climate change seem to be moving towards a mitigation/adaptation philosophy; this is occurring at the expense of the most vulnerable like small island nations. In many ways the issues presented when thinking about global environmental law are the same as domestic considerations: do we prioritize nature over economic prosperity? Do we consider future generations in our actions today? Do we agree the environment sets the outer limit of our social and economic potential? The only difference at the international level is the lack of compulsory legal mechanisms that can exist at the national level. Regardless, understanding the basic frameworks of global environmental law is an important way of thinking about the subject within the context of some of the most daunting and pressing issues of our time because those environmental issues are global in scale and impact. END OF SECTION.