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The Emerging Practice of Global Environmental Law

Published online by Cambridge University Press:  16 March 2012

Tseming Yang*
Affiliation:
Deputy General Counsel, United States (US) Environmental Protection Agency, Washington, DC, US; on leave from Vermont Law School, South Royalton, VT, US. Email: Yang.Tseming@epa.gov.

Abstract

Since the 1972 Stockholm Conference on the Human Environment, ecological pressures on our planet have grown more acute. Yet, modern environmental law has also continued to evolve and spread within international as well as among national legal systems. With the paths of international and national environmental law becoming increasingly intertwined over the years, international environmental legal norms and principles are now penetrating deeper into national legal systems, and environmental treaties are increasingly incorporating or referencing national legal norms and practices. The shifting legal landscape is also changing contemporary environmental law practice, creating greater needs for domestic environmental lawyers to be informed by international law and vice versa. This essay describes how domestic environmental law practice is increasingly informed by international legal norms, while the effective practice of international environmental law more and more requires enhanced awareness, and even understanding, of national environmental regulatory and governance systems. It illustrates these trends with the historical role and work of the United States Environmental Protection Agency’s Office of General Counsel.

Type
Invited Article
Copyright
Copyright © Cambridge University Press 2012. This is a work of the U.S. Government and is not subject to copyright protection in the United States.

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References

1 See generally Yang, T. & Percival, R.V., ‘The Emergence of Global Environmental Law’ (2009) 36 Ecology Law Quarterly, pp. 615–64.Google Scholar

2 Ibid.

3 See generally ibid. For recent developments with respect to EIA as a transboundary duty, see the International Court of Justice (ICJ) ruling in Pulp Mills on the River Uruguay (Argentina v. Uruguay), paras. 178–80 (Judgment of 20 Apr. 2010), available at: http://www.icj-cij.org/docket/files/135/15877.pdf; case comment by Payne, C.R., ‘Pulp Mills on the River Uruguay: The International Court of Justice Recognizes Environmental Impact Assessment as a Duty under International Law’ (2010) 14(9) American Society of International Law Insight, pp. 111Google Scholar; available at: http://www.asil.org/insights100422.cfm.

4 For example, China, which started out with just a general environmental framework statute in 1979, has enacted around two dozen pollution and resource-related statutes.

5 US Constitution, Art. II, sec. 2, para.2, Art. VI, para. 2.

6 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London (UK), 13 Nov. 1972, in force 30 Aug. 1975, available at: http://www.imo.org.

7 MPRSA, 33 U.S.C. 1412(a), s. 102(a).

8 Montreal (Canada), 16 Sept. 1987, in force 1 Jan. 1989, available at: http://ozone.unep.org/new_site/en/montreal_protocol.php.

9 CAA, 42 U.S.C. 7671m, s. 614.

10 Rio de Janeiro (Brazil), 5 June 1992, in force 29 Dec. 1993, available at: http://www.cbd.int/convention/text.

11 Ibid., Art. 8.

12 Art. 2(2)(b), Vienna Convention for the Protection of the Ozone Layer, Vienna (Austria), 22 Mar. 1985, in force 22 Sept. 1988, available at: http://ozone.unep.org.

13 Montreal Protocol, n. 8 above.

14 US-Canada-Mexico, 14 Sept. 1994, available at: http://www.naaec.gc.ca.

15 Ibid., Art. 5(1).

16 In the past, attention and energy on international environmental issues have largely focused on the development of new legislation and norms. However, the experience in the past few decades has shown, especially in developing countries, that enactment of laws does not in itself ensure effective implementation and enforcement. See generally Fulton, S. & Benjamin, A., ‘Foundations of Sustainability’ (2011) 28(6) Environmental Forum, pp. 32–6.Google Scholar

17 Art. 38, Statute of the International Court of Justice, available at: http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0.

18 National Research Council, Global Sources of Local Pollution: An Assessment of Long-Range Transport of Key Air Pollutants to and from the United States (National Academies Press, 2010), at pp. 108–9, 117.Google Scholar

19 The priority areas laid out for the agency focused on (i) building stronger environmental institutions and legal structures, (ii) combating climate change by limiting pollutants, (iii) improving air quality, (iv) expanding access to clean water, (v) reducing exposure to toxic chemicals, and (vi) cleaning up hazardous e-waste. Of course, work on a range of other international matters also continues.

20 It is worth noting that environmental efforts by the developing world and emerging economies are as much, if not even primarily, a response to increasing calls by their own citizens to address serious environmental challenges in the developing world, as they are responses to outside pressures.

21 For details of the mercury treaty negotiation process see, e.g., http://www.unep.org/hazardoussubstances/Mercury/Negotiations/tabid/3320/Default.aspx.

22 Ottawa (Canada), 22 Nov. 1978, in force 22 Nov. 1978, superseding the 1972 Agreement, available at: http://www.epa.gov/greatlakes/glwqa/1978/index.html.

23 Further information is available at: http://www.ustr.gov/tpp.

24 United States ? Restrictions on Imports of Tuna, GATT, 3 September 1991, No. DS21/R, 30 ILM 1594 (1991), available at: http://www.worldtradelaw.net/reports/gattpanels/tunadolphinI.pdf

25 See, e.g., the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6938, s. 3017.

26 N. 8 above.

27 Kyoto Protocol to the United Nations Framework Convention on Climate Change, Kyoto (Japan), 10 Dec. 1997, in force 16 Feb. 2005, available at: http://unfccc.int/kyoto_protocol/items/2830.php.

28 See generally Yang, T., ‘International Treaty Enforcement as a Public Good: The Role of Institutional Deterrent Sanctions in International Environmental Agreements’ (2006) 27 Michigan Journal of International Law, p. 113184.Google Scholar

29 N. 14 and n. 15 above.

30 San Antonio, TX (US), 17 Dec. 1992, in force 1 Jan. 1994, available at: http://www.nafta-sec-alena.org.

31 Arts. 5 and 14, NAFTA, ibid.

32 Coal-fired Power Plants, SEM-04-005, filed 16 Sept. 2004, available at: http://cec.org/Page.asp?PageID=2001&ContentID=2390&SiteNodeID=544&;BL_ExpandID.

33 CWA, 33 U.S.C. 1251.

34 Another submission, Logging Rider, raised the question of whether Congressional legislation that limits administrative review falls within the scope of the effective enforcement provision and thus could give rise to an investigation and factual record. See Logging Rider, SEM-95-002, filed 30 Aug. 1995, available at: http://cec.org/Page.asp?PageID=2001&ContentID=2345&SiteNodeID=545&BL_ExpandID.

35 For further elaboration on the close connection between effective environmental governance and the rule of law, see n. 16 above.

38 USAID has recognized the EPA’s effort with its Central American counterparts in developing the model wastewater pollution control law as an example of effective environmental capacity-building and as a model for other environmental capacity-building efforts, with tangible results: adoption by the Environment Ministers of the model law in principle and their effort to integrate it into, and implement it in, domestic legal regimes in individual countries.

39 16 U.S.C. 3371–3378.

40 33 U.S.C. 1901–1915.

41 16 U.S.C. 3372(a).

42 US Department of Justice, News Release, ‘Commercial Fishermen Plead Guilty to Illegal Fishing and Shooting of Marine Mammals’, 28 June 2011, available at: http://www.justice.gov/usao/cas/press/cas11-0628-TwoCaptains.pdf.

43 London (UK), 2 Nov. 1973, in force only after the 1978 London Protocol on 2 Oct. 1983, available at: http://www.imo.org/about/conventions/listofconventions/pages/international-convention-for-the-prevention-of-pollution-from-ships-(marpol).aspx.

44 US Department of Justice, News Release, ‘Overseas Shipholding Group Inc. Will Pay Largest-ever Penalty for Concealing Vessel Pollution’, available at: http://www.justice.gov/opa/pr/2006/December/06_opa_849.html.

45 15 U.S.C. 78dd et seq.

46 Available at: http://www.cidh.oas.org.

47 28 U.S.C. 1350.

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