The usual moral of Kipling's poem is ‘Dont't ask too many questions.’ An equally important moral, however, is that reasonable use of all six questions should be made on occasion, and especially if an institution of our society is to be understood, let alone reformed. No doubt different emphases on the different questions are appropriate to different endeavours, and it is natural enough that our procedural reformers, who are today more active than at any time since the Judicature Acts, should concentrate on ‘How?’

Acts performed in the ‘real’ world affect people in their ‘real’ lives, and it is one of the functions of the law to specify when and under what conditions one person is entitled to have another do or refrain from doing something in that world. In complex modern societies it is not, of course, always possible to describe the real world without recourse to the law and legal concepts, and this is most obviously the case when one person invokes the assistance of the legal process in the pursuit of his demand that another person, or the State itself, confer upon him some advantage. It would, for example, be difficult for an author to demand monetary compensation from the publisher of a pirated version of his book without reference to the legal concept of copyright, and it is impossible to reify divorce without reference to the legal structure of society: at the secular level neither marriage, which is different from cohabitation, nor divorce, the principal characteristic of which is conferment of the right to remarry, is comprehensible unless seen against the background of the law. Nevertheless, it has to be recognised that civil litigation takes place when one person demands some advantage for himself - usually, but not always, at the expense of another - and that advantage proves in the event to be one that he cannot obtain without the intervention of the court.

Action and right

In a famous passage in the Institutes of Justinian, the ‘action’ is denned as ‘nothing other than the right of pursuing in judicio that which is due to one’, and when it eventually became necessary for European lawyers to find a link between the substantive law which had for so long been studied in the universities, on the one hand, and the procedures of the courts, on the other, it was natural for them to turn to that. The action became ‘the law in motion’, the ‘law in a state of war’ or, in the less exciting but more precise language of Glasson and Tissier's treatise on French civil procedure ‘the action is the power which a person possessed of a right has of obtaining from a judge the protection of that right’. In other words - and the words were used - if there is no right, there is no action.

In England the starting point was different, for in England, so far as proceedings in the royal courts were concerned, the formulary system of the forms of action was the basis of the law for centuries. Substantive law, as such, could not really be said to exist: only if a writ and a form of action adapted to his case was available to a would-be plaintiff could he invoke the jurisdiction of the king's courts at all. What is more, even if a suitable form of action existed, if the plaintiff had mistakenly used not that form but a different one, his claim would fail.

Intermediate rights

It has always been true that the activities of some members of society will produce harmful consequences for others, individually or as members of the public or of a section of the public; it has also always been true that the law and the courts have played an important role in the control of behaviour and the regulation of such redress as may be available to those harmed or threatened with harm. Until comparatively recently, however, it has been sufficient to allow access to the courts only to a representative of the public – Attorney-General, ministere public or other official body - where the right affected is ‘public’, and only to the affected individual, as ‘owner’ of the right, where it is ‘private’. Now, however, changes in society itself and the law explosion of modern times have combined to create situations in which there is need to allow access to the courts on a wider basis. It is no longer sufficient to hold that only the official representative of the public, if anyone, may institute litigation where there is no private owner of a right able and willing to do so.

Introduction

Generally speaking, the law governing recourse against judicial decisions recognises two categories of procedure, and the distinction between them is reflected by the use of two different words: appel, cassation; appello, cassazione; apdacion, casacián (or amparo-casacián); Berufung, Revision No such pairing exists, however, in English, which has only ’appeal’.

This does not mean that procedures which would be classified elsewhere as cassation rather than appeal did not and do not exist in the common law. On the contrary, until the major reforms of the nineteenth century, an appeal properly so-called existed in England only in the courts of Equity; in the courts of ‘common law’ the only forms of recourse available had far more in common with the cassation than with the appeal of other countries. What is more, while England itself substituted for those forms of recourse a procedure of appeal in the nineteenth century, reserving a procedure analogous to cassation for limited classes of case including, most importantly, recourse against the decisions of administrative authorities or tribunals, in the United States of America the older English forms of recourse - including what is actually now called an ‘appeal’ to a ‘Court of Appeals’ - have been developed rather than replaced: for the purposes of this chapter, therefore, the American appeal is treated as a form of cassation rather than of appeal.

Introduction

Professor René David has drawn to the attention of every comparative lawyer that the common law ‘est un systéme marqué profondément par son histoire’ and that ‘cette histoire est de facon exclusive, jusqu’ au XVIIIe siécle, l'histoire du droit anglais’. This observation is as true for procedural as it is for substantive law; indeed, as Professor David has also pointed out, for most of its history English law was dominated by procedural considerations: remedies precede rights. ‘Toute l'attention des juristes anglais s'est concentráe pendant longtemps sur les procédures variées, trés formalistes, qui étaient engagées par les differents writs … La common law ne se présente pas comme un systéme visant á protéger des droits; elk consiste essentielkment en des régies de procédures jugées propres á assurer, dans des cas de plus en plus nombreux, la solution des litiges conforméent á la justice.’ Sir Henry Maine's famous statement, ‘So great is the ascendancy of the Law of Actions in the infancy of Courts of Justice, that substantive law has at first the look of being gradually secreted in the interstices of procedure’, is true for the law of England for much of its history.

In the course of the nineteenth century most of the worst technicalities of procedure to which a long history of formalism had given rise were swept away and, so far as the superior courts of England are concerned, the Judicature Acts of 1873-5 created the system which, in its essentials, endures to the present day.

The United States

‘Public interest actions’

Though the Attorney-General may bring proceedings himself, the ‘relator action’ as known in England and a number of other common law countries has not developed in the United States. For the ordinary plaintiff the basic rule used to be that only a person who could allege the infringement of a legal right of his own had the necessary ‘standing’ to bring civil proceedings. This meant, for all practical purposes, that he must allege damage to himself and that, on the face of things, left little room for ‘unselfish’ litigation. In 1940, however, a licensed radio station challenged the legality of the grant of a licence to a rival station. The plaintiff's motivation is unlikely to have been unselfish and the legislation was not intended to protect radio stations from competition. Nevertheless, the action was entertained because, in the Supreme Court's opinion, judicial scrutiny of the action of the licensing authority was in the public interest, and yet only persons likely to be injured financially would have an incentive to bring errors on the part of the authority to the attention of the courts.

The idea of harnessing a person's desire to obtain a personal benefit which would, at best, be no more than an unintended byproduct of the law, in order to have matters of public interest brought before the courts, led to the theory that ‘injury in fact’ - which does not require the infringement of a legal right - will suffice where there is thought to be need for the intervention, in the public interest, of a ‘private attorney-general’.

The new Civil Procedure Rules, which are based on and broadly follow the recommendations made by Lord Woolf in his Reports of 1995 and 1996, came into force on 26 April 1999. They are supposed to give a completely new start to English civil procedure, and Lord Woolf himself is reported as having said, in a speech made in February 1999, that the White Book would be of ‘historic interest’ only, that looking back to old cases would ‘mislead rather than inform on the new position’ and even that ‘all learning should be forgotten’ {Law Society Gazette, Guardian Issue, 24 February 1999, p. 4).

It is only fair to Lord Woolf to suppose that he did not intend his words to be taken literally, but, be that as it may, this book reflects the conviction that the slate was not, and could not have been, wiped clean and a completely new system introduced in April 1999. Reformers are men and women of their time. They can learn from their past, but they cannot wholly escape from it. Even the French Revolution could not produce a truly radical civil code: its draftsmen were, inevitably, lawyers and judges of the pre-Revolutionary era who ‘could not be expected to forget their education, experience, and preconceptions’ (René David, French Law (1972), p. 12). In fact, though the new rules have introduced a number of significant innovations and have changed the style and language of our procedural law, what we have now is clearly recognisable as a development, not a rejection and replacement, of what went before. That this development, in conjunction with some earlier changes, may have l -term unintended conseq ences for the character of our procedure, is another matter.

The principle of free trade

The textual source of the Supreme Court's authority to review the constitutionality of state measures interfering with trade is to be found in Article I, section 8 of the Constitution (the ‘Commerce Clause’), which in its relevant part reads: ‘The Congress shall have the power … to regulate commerce with foreign Nations, and among the several states.’ On its face, the Commerce Clause appears to be a grant of authority to Congress to regulate commerce rather than a limitation on state activity when Congress has not acted. However, acknowledging the framers' intention to create a common market and to avoid economic balkanization of the Union, the Supreme Court has long recognized that the Commerce Clause also contains a ‘dormant’ dimension that operates as a prohibition on interferences with commerce by the states. ‘The very purpose of the Commerce Clause,’ the court has written, ‘was to create an area of free trade among the several states’. Yet, the objective of ensuring free interstate trade has not been construed as an absolute prohibition on state measures interfering with commerce. In this context, an important task for the court has been to develop devices for distinguishing between permissible and impermissible state interferences with commerce.

Since its first recognition of a dormant dimension in the Commerce Clause more than one and a half centuries ago, the Supreme Court has experimented with a variety of formulations for the Commerce Clause limitation upon the states.

The previous chapters examined how the Court of Justice and the Supreme Court have attempted to deal with the various kinds of tension that may arise between trade and environmental protection through a process of selective invalidation of state environmental measures restricting trade. In order to bridge the two central parts of this study, the objective of this chapter is to discuss to what extent judicial intervention can be complemented by centralized legislative action taking the form of harmonization of state environmental standards.

Of all areas of environmental regulation, it is perhaps in the area of process standards that there is the most obvious need for the adoption of positive rules of harmonization. As we have seen, variations in the level of stringency of state environmental process standards may create distortions of competition between states. However, the traditional free-movement-of-goods case law of the Court of Justice and the Supreme Court appears to offer little protection to states whose industrial competitiveness is harmed by other states' lax process standards. Although the adoption by one state of lax process standards may generate distortions of competition, lax process standards do not in themselves generate the kind of barriers to trade susceptible of falling within the scope of Article 30 of the Treaty or of the dormant Commerce Clause doctrine.

This book discusses and compares the relationship between trade and environmental-protection policies in the European Community and the United States. The central thesis of this book is that the various tensions that may arise between trade and environmental protection in federaltype systems can generally be solved through two complementary institutional means. First, using the free-trade provisions of the EC Treaty and the United States Constitution, the European Court of Justice and the US Supreme Court can place limits on the ability of states to enact legislation restricting trade (‘negative harmonization’). Second, the Community and US federal legislatures can set common environmental standards for all states (‘positive harmonization’). In this context, a central objective of this book is to discuss the respective contributions of the judiciary and the legislature to the solution of the tensions arising between trade and environmental policies, as well as to show the interactions existing between such policies. As argued in this book, such interactions shape the balance between trade and environmental objectives in the Community and the United States. More generally, they define the progress of environmental protection in these systems.

The most pleasant duty that falls when writing a preface is to recall the names of those who have acted as an inspiration and helped in the completion of the work. Two persons deserve particular mention. Professor James Crawford supervised my doctoral thesis on which this study is based and I have greatly benefited from his wise advice and suggestions.

The principle of free trade

Article 3 of the EC Treaty states that, in order to achieve the general objectives of the Community expressed in Article 2 of the Treaty, the activities of the Community include, inter alia:

the elimination, as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and all measures having equivalent effect.

As far as quantitative restrictions on the import and export of goods and measures having equivalent effect are concerned, their elimination is to be achieved through the application to member states' laws of the prohibitions contained in Articles 30 and 34 of the Treaty respectively.

Article 30 of the Treaty provides that all quantitative restrictions on imports and measures having equivalent effect shall be prohibited between member states. The concept of quantitative restrictions is relatively straightforward. Quantitative restrictions were defined by the Court of Justice as ‘measures which amount to a total or partial restraint of, according to the circumstances, imports, exports or goods in transit’. The definition of the concept of ‘measure having equivalent effect’ has created more difficulty. After an initial attempt at definition by the Commission, this concept has been interpreted by the Court of Justice in its leading judgment in Procureur du Roi v. Dassonville et al. as covering:

The principle of attributed powers

The EC Treaty is founded on a system of attributed powers. The essential feature of such a system is that the Community can only act when it has been expressly given the power to do so by a provision of the Treaty. Without the existence of a legal basis establishing its power to act in a particular field, no Community action in that field is possible.

With regard to the specific question of the existence of one or several legal bases for Community action in the environmental field, a distinction can usefully be drawn between two distinct phases. The first phase covers the period prior to the amendments made to the Treaty by the Single European Act (SEA). Although this period was characterized by the absence of a proper legal basis in the Treaty for Community environmental action, a brief examination of this period will provide us with the necessary background for a better understanding of the important modifications brought about successively by the SEA and the Treaty on European Union (TEU). The second phase covers the period, from July 1987 onwards, following the entry into force of the SEA. In this second phase, distinctions will also be drawn between the period following the entry into force of the SEA but preceding the entry into force of the TEU and the period, from November 1993 onwards, following the entry into force of the TEU.

This chapter, which is devoted to United States law, follows the same subdivisions as those adopted in the context of European Community law. The first two sections deal with important institutional questions. The first section addresses the question of the existence of a constitutional basis for federal environmental action. The second section then discusses, in parallel to the Community principles of subsidiarity and proportionality, whether the federal government's exercise of regulatory authority over environmental matters is limited in any significant way out of respect for the states' residual sphere of competence over these matters. Having discussed the power of the federal government to act in the environmental field, as well as the potential limits imposed on the exercise of such power, the third section examines how in the areas of product standards, process standards and waste the federal government has attempted to balance trade and environmental objectives through or in the context of its legislative action. Finally, the fourth section deals with the question of pre-emption, i.e., whether, once the federal government has legislated, states may adopt stricter standards than federal standards or if federal standards are exhaustive.

The principle of attributed powers

Like the EC Treaty, the US Constitution is founded on a system of limited, attributed powers pursuant to which the states remain the ordinary bearer of sovereignty, while the federal government has only the powers entrusted to it by the Constitution.

In this chapter, I first discuss and compare the powers of the Community and the US federal government to take action in the environmental field, as well as the potential limits that may be placed on the exercise of such powers out of respect for the states' residual sphere of competence over this field. Then, I compare how in the areas of product standards, process standards and waste, the Community and the US federal government have concretely attempted to balance trade and environmental protection through or in the context of their legislative action. Finally, I compare the extent to which the Community and the US federal government have allowed the states to adopt stricter measures than Community/federal harmonized measures.

The principle of attributed powers

Since both the European Community and the US federal systems are based on the principle of attributed powers, the first question examined in this Part was to what extent the Community and the US federal government have the power to legislate in the environmental field. While there is no specific provision in the US Constitution providing authority for federal regulation of the environment, the federal government has, however, legislated in this area, relying on the Supreme Court's broad interpretation of its power to regulate interstate commerce.