VOLUME 3 THE LAW AND P TICS SUSTAINABILITY...VOLUME 3 BERKSHIRE ENCYCLOPEDIA OF...

VOLUME 3

BERKSHIREENCYCLOPEDIA OF SUSTAINABILITY

Editors Klaus Bosselmann, University of Auckland; Daniel S. Fogel, Schools of Business and

Center for Energy, Environment, and Sustainability at Wake Forest University; J. B. Ruhl, Florida State University

THE LAW AND POLITICS OF

SUSTAINABIL ITY

FM.indd I 12/10/2010 12:28:12 AM

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Library of Congress Cataloging-in-Publication Data

Berkshire encyclopedia of sustainability: the law and politics of sustainability / edited by Klaus Bosselmann, Daniel Fogel, and

J. B. Ruhl.

v. cm.

Includes bibliographical references and index.

Contents: vol. 3. Th e law and politics of sustainability --

ISBN 978-1-933782-14-0 (vol. 3 print : alk. paper)

1. Environmental quality—Encyclopedias. 2. Environmental protection—Encyclopedias.

3. Sustainable development—Encyclopedias. I. Bosselmann, Klaus. II. Fogel, Daniel.

III. Ruhl, J. B.

Berkshire encyclopedia of sustainability (10 volumes) / edited by Ray Anderson et al.

10 v. cm.

Includes bibliographical references and index.

ISBN 978-1-933782-01-0 (10 volumes : alk. paper) — 978-1-933782-00-3 (10 volumes e-book) — ISBN 978-1-933782-15-7 (vol. 1

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(vol. 2 e-book) — ISBN 978-1-933782-14-0 (vol. 3 print : alk. paper) — ISBN 978-1-933782-56-0 (vol. 3 e-book) — ISBN 978-1-933782-12-6

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9 e-book) — ISBN 978-1-933782-63-8 (vol. 10 print : alk. paper) — ISBN 978-1-933782-75-1 (vol. 10 e-book)

1. Environmental quality—Encyclopedias. 2. Environmental protection—Encyclopedias. 3. Sustainable development—

Encyclopedias. I. Anderson, Ray, et al.

HC79.E5B4576 2010

338.9’2703—dc22 2009035114

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III

Editors

EditorsKlaus BosselmannUniversity of Auckland

Daniel S. FogelSchools of Business and Center for Energy, Environment, and

Sustainability at Wake Forest University

J. B. RuhlFlorida State University

Associate EditorPatricia WoutersCentre for Water Law, Policy & Science, University of Dundee

Editorial Advisory BoardRay Anderson, Interface, Inc.; Lester Brown, Earth Policy

Institute; Robert Costanza, University of Vermont; Luis Gomez-Echeverri, United Nations Development Pro-

gramme; John Elkington, SustainAbility; Daniel Kammen, University of California, Berkeley; Ashok Khosla, Interna-

tional Union for Conservation of Nature; and Christine Loh, Civic Exchange, Hong Kong

Production StaffPublisherKaren Christensen

Project CoordinatorBill Siever

CopyeditorsMary BaggKathy BrockMiriam DowneyCarolyn HaleyLaura LawrieCarol NobleBarbara ReschStephanie Schwartz DriverKate Stein

Editorial AssistantsHillary CoxEllie JohnstonGinger Nielsen

DesignAnna Myers

Composition and IndexingNewgen Imaging Systems, Inc.

PrinterTh omson-Shore, Inc.

Image Credits

Front cover photo and inset cover photo by Carl Kurtz.

Engraving illustrations of plants and insects by Maria Sib-ylla Merian (1647–1717).

Front Matter: Photo of salps in water near Cordell Bank, California, U.S.A. Photo courtesy of the Gulf of the Far-allones National Marine Sanctuary.

Photos used at the beginning of each letter section:

A. Travertine terraces, Yellowstone National Park, Wyo-

ming, U.S.A. Photo by Amy L. Siever.

B. Farm in the Connecticut River valley, Hadley, Massa-

chusetts, U.S.A. Photo by Bill Siever.

C. Sunset, Hawaii, U.S.A. Photo by Zhang Xiaojin.

D. Autumn view from Big Crow Mountain, Keene, New

York, U.S.A. Photo by Amy Fredsall.

E. Minnows in Jordan’s Pond, Acadia National Park,

Maine, U.S.A. Photo by Amy L. Siever.

F. Fynbos on Cape Point, South Africa. Photo by Jacques

Th eron. Courtesy of Morguefi le.com.

G. Cotswold Hills in autumn, Gloucestershire, U.K. Photo

by Amy L. Siever.

I. Prickly pear cacti and fl owers, Red Rocks State Park,

Sedona, Arizona, U.S.A. Photo by Amy L. Siever.

J. Sandy beach on Middle Saranac Lake, Saranac Lake,

New York, U.S.A. Photo by Amy Fredsall.

K. Th e Grand Canyon, Arizona, U.S.A. Photo by Kevin

Connors. Courtesy of Morguefi le.com.

L. Maple tree and fi eld, Jug End Reservation, South Egre-

mont, Massachusetts, U.S.A. Photo by Amy Fredsall.

M. Asters, Ogunquit, Maine, U.S.A. Photo by Amy L.

Siever.

N. Dappled leaf, the Botanic Gardens at Smith College,

Northampton, Massachusetts, U.S.A. Photo by Amy

L. Siever.

O. Rocks off Sheep Point Cove, Newport, Rhode Island,

U.S.A. Photo by Amy Fredsall.

P. Waterfall, Kent Falls State Park, Kent, Connecticut,

U.S.A. Photo by Amy Fredsall.

R and Index. Autumn maple, Pound Ridge Reservation,

Pound Ridge, New York, U.S.A. Photo by Bill Siever.

S. Air bubbles in ice, Bartholomew’s Cobble, Sheffi eld,

Massachusetts, U.S.A. Photo by Amy L. Siever.

T. Flowers and vines growing on trunk, Innisfree Garden,

Millbrook, New York, U.S.A. Photo by Karyn Samuelson.

U. Spring view of Bath, Somerset, U.K. Photo by Amy

L. Siever.

W. Terraces covering the hills of eastern Gansu Province,

China. Photo by Tom Christensen.

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IV

Contents

List of Entries v

Reader’s Guide ix

Glossary of Terms xiii

List of Contributors xvi

Series List: The Encyclopedia of Sustainability xxv

Introduction xxvi

“Armed Confl ict and the Environment” through

“World Constitutionalism” 1–514

Index 515–538

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V

List of Entries

A

Armed Confl ict and the Environment

B

Bhopal Disaster

Biotechnology Legislation

Brent Spar

Brundtland Report

C

Chemicals Legislation and Policy

Chernobyl

Civil Disobedience, Environmental

Clean Air Act

Clean Water Act

Climate Change Disclosure—Legal Framework

Climate Change Mitigation

Cod Wars (United Kingdom v. Iceland)

Common Heritage of Mankind Principle

Convention for the Prevention of Pollution From Ships

Convention for the Prohibition of Fishing with Long Drift Nets in the South Pacifi c

Convention for the Safe and Environmentally Sound Recycling of Ships

Convention for the Safety of Life at Sea

Convention on Biological Diversity

Convention on Civil Liability for Oil Pollution

Convention on International Trade in Endangered Species

Convention on Long-Range Transboundary Air Pollution

Convention on Persistent Organic Pollutants

Convention on Wetlands

Convention to Combat Desertifi cation

Copenhagen Climate Change Conference 2009

Customary International Law

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VI • BERKSHIRE ENCYCLOPEDIA OF SUSTAINABILITY: THE LAW AND POLITICS OF SUSTAINABILITY

D

Dark Sky Initiatives

Development, Sustainable—Overview of Laws and Commissions

E

Ecolabeling

Ecological Modernization Th eory

Ecosystem Management

Eco-Terrorism

Education, Environmental Law

Endangered Species Act

Energy Conservation Incentives

Energy Subsidies

Enforcement

Environmental Dispute Resolution

Environmental Law—Africa, Saharan

Environmental Law—Africa, Sub-Saharan

Environmental Law—Antarctica

Environmental Law—Arab Region

Environmental Law—Arctic

Environmental Law—Australia and New Zealand

Environmental Law—Central America and the Caribbean

Environmental Law—China

Environmental Law—East Asia

Environmental Law—Europe

Environmental Law—India and Pakistan

Environmental Law—Israel

Environmental Law—Pacifi c Island Region

Environmental Law—Russia and Central Asia

Environmental Law—South America

Environmental Law—Southeast Asia

Environmental Law—United States and Canada

Environmental Law, Soft vs. Hard

European Union Greenhouse Gas Emission Trading Scheme

Exxon Valdez

F

Fair Trade

Fishing and Whaling Legislation

Forest Reserve Act

Free Trade

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LIST OF ENTRIES • VII

G

Gabčíkovo–Nagymaros Dam Case (Hungary v. Slovakia)

Genetically Modifi ed Organisms Legislation

Grassroots Environmental Movements

Green Taxes

I

Intergenerational Equity

International Court of Justice

International Green Construction Code

International Law

Investment Law, Energy

Investment Law, Foreign

J

Justice, Environmental

K

Kyoto Protocol

L

Lacey Act

Land Use—Regulation and Zoning

Law of the Sea

Love Canal

M

Massachusetts v. Environmental Protection Agency

Montreal Protocol on Substances Th at Deplete the Ozone Layer

MOX Plant Case (Ireland v. United Kingdom)

N

Nanotechnology Legislation

National Environmental Policy Act

Natural Resources Law

New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act

Nuisance Law

O

Ocean Zoning

P

Polluter Pays Principle

Precautionary Principle

Principle-Based Regulation

R

Real Property Law

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VIII • BERKSHIRE ENCYCLOPEDIA OF SUSTAINABILITY: THE LAW AND POLITICS OF SUSTAINABILITY

Refugees, Environmental

Registration, Evaluation, Authorisation, and Restriction of Chemicals

Restriction of Hazardous Substances Directive

S

Silent Spring

Soil Conservation Legislation

T

Tort Law

Trail Smelter Arbitration (United States v. Canada)

Transboundary Water Law

U

United Nations—Overview of Conventions and Agreements

Utilities Regulation

W

Waste Shipment Law

Water Act (France)

Water Security

Weak vs. Strong Sustainability Debate

Wilderness Act

World Constitutionalism

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IX

Note: most articles appear in more than one category

CASE STUDIES

Bhopal Disaster

Brent Spar

Chernobyl



Exxon Valdez


Love Canal

Massachusetts v. Environmental Protection Agency


Silent Spring

Trail Smelter Arbitration (United States v. Canada)

Water Act (France)

CONCEPTS AND THEORIES

Civil Disobedience, Environmental

Common Heritage of Mankind Principle

Customary International Law

Ecological Modernization Th eory

Eco-Terrorism


Environmental Law, Soft vs. Hard

Fair Trade

Free Trade


International Law


Law of the Sea

Natural Resources Law

Polluter Pays Principle

Precautionary Principle

Principle-Based Regulation

Tort Law

Water Security

Weak vs. Strong Sustainability Debate

World Constitutionalism

Reader’s Guide: Articles by Category

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X • BERKSHIRE ENCYCLOPEDIA OF SUSTAINABILITY: THE LAW AND POLITICS OF SUSTAINABILITY

CONVENTIONS, CONFERENCES,

REPORTS, AND PROTOCOLS

Brundtland Report





Convention on Biological Diversity


Convention on International Trade in Endangered Species

Convention on Long-Range Transboundary Air Pollution

Convention on Persistent Organic Pollutants





Kyoto Protocol

Law of the Sea


ENVIRONMENTAL LAW BY NATION / REGION

Environmental Law—Africa, Saharan

Environmental Law—Africa, Sub-Saharan

Environmental Law—Antarctica

Environmental Law—Arab Region

Environmental Law—Arctic

Environmental Law—Australia and New Zealand

Environmental Law—Central America and the Caribbean

Environmental Law—China

Environmental Law—East Asia

Environmental Law—Europe

Environmental Law—India and Pakistan

Environmental Law—Israel

Environmental Law—Pacifi c Island Region

Environmental Law—Russia and Central Asia

Environmental Law—South America

Environmental Law—Southeast Asia

Environmental Law—United States and Canada


LEGAL INSTRUMENTS AND REGULATORY LAW

Biotechnology Legislation

Chemicals Legislation and Policy

Clean Air Act

Clean Water Act

Climate Change Disclosure—Legal Framework

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READER’S GUIDE: ARTICLES BY CATEGORY • XI

Climate Change Mitigation

Ecolabeling

Ecosystem Management

Endangered Species Act

Energy Conservation Incentives

Energy Subsidies

Enforcement

Environmental Dispute Resolution



Forest Reserve Act

Genetically Modifi ed Organisms Legislation

Green Taxes

International Court of Justice

International Green Construction Code

Investment Law, Energy

Investment Law, Foreign

Lacey Act

Land Use—Regulation and Zoning

Law of the Sea

Montreal Protocol on Substances Th at Deplete the Ozone Layer

Nanotechnology Legislation

National Environmental Policy Act


Nuisance Law

Ocean Zoning

Real Property Law

Registration, Evaluation, Authorisation, and Restriction of Chemicals

Restriction of Hazardous Substances Directive

Soil Conservation Legislation

Transboundary Water Law

Utilities Regulation

Waste Shipment Law

Wilderness Act

SOCIAL ISSUES

Armed Confl ict and the Environment

Bhopal Disaster

Chernobyl

Dark Sky Initiatives


Eco-Terrorism


Fair Trade

Grassroots Environmental Movements



Love Canal

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XII • BERKSHIRE ENCYCLOPEDIA OF SUSTAINABILITY: THE LAW AND POLITICS OF SUSTAINABILITY


Refugees, Environmental

Waste Shipment Law

Water Security

WATER / MARITIME ISSUES

Brent Spar

Clean Water Act









Exxon Valdez



Law of the Sea


Ocean Zoning

Waste Shipment Law

Water Act (France)

Water Security

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XIII

Although we have defi ned legal terms as they appear through-out the articles in this volume, we decided also to include a glossary of basic terms used across broad legal fi elds. Below each entry is a reference, when applicable, to articles that will elaborate or further examine how the term is applied in envi-ronmental law and/or politics.

Ad Hoc

Ad hoc refers to something (such as a committee or a law) formed to address a specifi c purpose. Ad hoc laws might include those of limited jurisdiction that are created one at a time to form a corpus of laws on a subject, as opposed to one comprehensive law covering all applicable areas. Ad hoc can also refer to committees in organizations or governments that are created, often temporarily, to handle situations not covered by any existing groups.

See Ocean Zoning

Civil Law

Civil law is a system inspired by laws codifi ed in the sixth century under the Byzantine Roman emperor Justinian and further codifi ed under Napoleon Bonaparte in the nineteenth century. Nations and states establish self-regulatory civil laws pertaining to ordinary matters (as opposed to criminal or military law) and which follow predetermined rules that are not subject to interpretation by judges. Civil law is most important in Europe, Central and South America, and parts of Asia and Africa, and is the basis for most international law.

See Environmental Law (various articles: Africa, Saharan; Africa, Sub-Saharan; Central America and the Caribbean; East Asia; Europe; South America); International Law

Common Law

Common law is based on court rulings rather than on legislation enacted by legislative bodies. Under com-mon law judges are obliged to rule in accordance with

precedents set by similar cases. Common law is practiced in Britain and its former possessions—the United States, Canada, Australia, New Zealand, South Africa, India, and Pakistan, among others.

See Environmental Law (various articles: Australia and New Zealand; India and Pakistan; United States and Canada).

Contract Law

Contract law is a body of law that regulates and enforces promises and exchanges, for either immediate or future performance, between two or more consenting parties; it guarantees a form of legal remedy if one or more of the parties break an agreement. It is rooted in the premise that promises made are to be kept.

Convention

In international law a convention is an agreement, com-pact, or treaty entered into by two or more parties, usually nations, to address a specifi c subject or problem. Interna-tional law largely comprises the provisions of international conventions.

See individual Convention articles; United Nations—Overview of Conventions and Agreements.

Criminal Law

Also known as penal law, criminal law involves a societal wrong—a crime against the social order—usually com-mitted by one individual. Criminal law is distinguished from other types of law by the fact that the prosecutor is always the government rather than another party (as in tort or contract law).

Customary Law

Customary, or general, international law is based on the customs or practices that have become widely accepted

Glossary of Terms

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XIV • BERKSHIRE ENCYCLOPEDIA OF SUSTAINABILITY: THE LAW AND POLITICS OF SUSTAINABILITY

by a society. In international law, if the initial act of one state becomes the practice of “many,” then it can be recog-nized, usually by international courts or tribunals or in the foreign policies of states, as a positive rule of customary international law. Th e law only applies, though, to those states that consent to recognize it as law (opinio juris).

See Customary International Law; International Law

Hard Law

Hard law is the body of international law that is legally binding and as such bears consequences for noncompli-ance that involve legal response. Hard law generally covers treaties, customary international law, and United Nations Security Council resolutions. It is used most often to con-trast soft law.

See Environmental Law, Soft vs. Hard; United Nations—Overview of Conventions and Agreements

Intellectual Property Law

Intellectual property law endeavors to protect the rights of people who have generated and lay claim to (often intangible) creations such as music, software, business techniques, or inventions. It includes patent, copyright, trademark, and trade secret law.

International Law

International law provides a structure for dealings among international and transnational governments. It is gener-ally considered a body of law since most countries fol-low international law most of the time, and because those countries that violate its norms do frequently suff er con-sequences. Existing international law generally lacks the capacity to enact laws binding on all nations, enforce existing laws, and arbitrate through judicial tribunals that have broad jurisdiction or the power to issue binding and enforceable decrees.

See Customary International Law; International Law; United Nations—Overview of Conventions and Agreements

Natural Law

Natural law is composed of rights that are determined to be universal to everyone and are drawn from human nature and/or religious creed. Th e right to life is primary

among standards recognized as natural law. It is often contrasted with positive law.

Normative

Normative, as it is regarded in law, is used to describe how something should exist based on a particular value or norm. It describes principles, laws, and statements that are prescriptive (how it ought to be), rather than descriptive (how it is). Th e term also implies the capacity of law, espe-cially a so-called soft law, to directly or indirectly shape the conduct of the persons or agencies it addresses.

See Environmental Law, Soft vs. Hard

Nuisance Law

Nuisance, as a legal concept or principle, refers to an activity or person that causes harm, particularly harm that violates rights. Nuisance law especially provides a legal remedy for owners and users of land who are disrupted in their use and enjoyment of it. Nuisance law also instructs landowners to use their property in ways that cause no legal harm to other landowners or the public.

See Nuisance Law; Tort Law; Real Property Law

Positive Law

Positive law refers to statutes that people have come up with (or posited), as opposed to those determined to be inherent to all people (natural law). Positive law covers the vast majority of laws that have been created, with the exclusion of those that are widely accepted as universal rights (such as the right to live).

Property Law

Property law is the body of law that provides regulations and guidance to reinforce the concept that property exists and can be claimed by parties. Property law includes real property, intellectual property, and private property.

See Real Property Law

Protocol

In international law, a protocol is typically a type of international agreement that provides direction on how a situation should be conducted or how a problem should be solved. Protocols often supplement existing

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GLOSSARY OF TERMS • XV

treaties or international agreements by adding amend-ments or provisions that are ratifi ed by signatories. Th is especially occurs in cases where the original treaty does not provide a specifi c course of action for ratify-ing nations.

See United Nations—Overview of Conventions and Agreements

Real Property Law

Real property law refers to laws created by the government to protect certain interests in land or certain resources such as trees, water, oil, or minerals that are relatively immov-able. When a person or group has a legally recognized interest under real property law, they have the exclusive right to possess, use, and transfer land or resources.

See Natural Resources Law; Real Property Law

Soft Law

Soft law refers to agreements made by parties internation-ally that are not legally binding, which can include United

Nations General Assembly resolutions, action plans, or declarations. Th e reaction to breaches of soft law norms is sociopolitical rather than legal in nature (in contrast to hard law, which can be legally enforced). Soft law gains its strength, however, from an international political-moral order.

See Environmental Law, Soft vs. Hard

Tort Law

Tort law involves a civil wrong—a harm done by a private party to a private party—and is typically distinguished from criminal law and contract law. Someone who is harmed by a private party may bring a suit (i.e., act as a “plaintiff ”) in tort to collect damages from the tortfea-sor (or “defendant”). Th e defendant is only responsible for compensating the plaintiff if it is established that the defendant breached a legal duty to the plaintiff , which resulted in damages. Tort law often covers traffi c acci-dents, negligence, false imprisonment, and some envi-ronmental pollution.

See Tort Law

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XVI

Ahmed, A. KarimNational Council for Science and the

EnvironmentPrecautionary Principle

Alam, ShawkatMacquarie UniversityConvention for the Safe and Environmentally

Sound Recycling of Ships

Amaral, Renata CampettiBaker & McKenzie, São PauloEnvironmental Law—South America (co-authors:

Gustavo Boruchowicz, Alejandra Bugna, Alessandro De Franceschi da Cruz, Anto-nio Ortuzar Jr., María Eugenia Reyes, María Victoria Romero, and Cristina Rueda)

Anderson, Mark W.University of MaineNational Environmental Policy Act

Andreen, WilliamUniversity of Alabama School of LawClean Water Act

Andrejko, Dennis A.University at Buff alo; State University of

New YorkInternational Green Construction Code

Azoulay, DavidCenter for International Environmental LawNanotechnology Legislation

Beyerlin, UlrichMax Planck Institute for Comparative

Public Law and International LawEnvironmental Law, Soft vs. Hard (co-author:

Th ilo Marauhn)

Boer, BenjaminSydney Law School, emeritusSoil Conservation Legislation (co-author: Ian

Hannam)

Boehringer, Ayse MartinaUniversity of GiessenEnvironmental Law—Europe (co-author:

Th ilo Marauhn)

Boruchowicz, GustavoBaker & McKenzie, Buenos AiresEnvironmental Law—South America (co-authors:

Renata Campetti Amaral, Alejandra Bugna, Alessandro De Franceschi da Cruz, Anto-nio Ortuzar Jr., María Eugenia Reyes, María Victoria Romero, and Cristina Rueda)

Bratspies, Rebecca M.City University of New York School of LawEnvironmental Law—United States and Can-

ada (co-author: John Martin Gillroy)

Broadbent, Jeff rey P.University of MinnesotaEnvironmental Law—East Asia (co-authors:

Yu-Ju Chien, Koichi Hasegawa, Jun Jin, Dowan Ku, and Taehyun Park)

List of Contributors

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LIST OF CONTRIBUTORS • XVII

Broughton, Edward I.Columbia UniversityBhopal Disaster

Bugge, Hans ChristianUniversity of OsloBrundtland Report

Bugna, AlejandraBaker & McKenzie, Buenos AiresEnvironmental Law—South America (co-

authors: Renata Campetti Amaral, Gustavo Boruchowicz, Alessandro De Franceschi da Cruz, Antonio Ortuzar Jr., María Eugenia Reyes, María Victoria Romero, and Cris-tina Rueda)

Caddell, RichardSwansea UniversityConvention for the Safety of Life at SeaConvention on Civil Liability for Oil PollutionConvention on Persistent Organic Pollutants

Cameron, Peter D.University of DundeeInvestment Law, Energy (co-author: Abba

Kolo)

Chien, Yu-JuUniversity of MinnesotaEnvironmental Law—East Asia (co-authors:

Jeff rey Broadbent, Koichi Hasegawa, Jun Jin, Dowan Ku, and Taehyun Park)

Connolly, Rebecca L.University of SydneyGenetically Modifi ed Organisms Legislation

Currie, Duncan E. J.Globe Law

Fishing and Whaling Legislation (co-author: Kateryna M. Wowk)

da Cruz, Alessandro De FranceschiBaker & McKenzie, Porto Alegre, BrazilEnvironmental Law—South America (co-

authors: Renata Campetti Amaral, Gustavo Boruchowicz, Alejandra Bugna, Antonio Ortuzar Jr., María Eugenia Reyes, María Victoria Romero, and Cristina Rueda)

Dhanasarnsombat, SansaneeENHESA Inc.Environmental Law—Southeast Asia (co-

authors: James Kho, Koh Kheng-Lian, Lye Lin Heng, Chit Chit Myint, Dominic J. Nardi Jr., and Deny Sidharta)

Dick, RobertRoyal Astronomical Society of CanadaDark Sky Initiatives

Eagle, JoshUniversity of South CarolinaOcean Zoning

Eisen, Joel B.University of Richmond School of LawUtilities Regulation

Erasga, Dennis SaturnoDe La Salle University-ManilaArmed Confl ict and the Environment

Feris, Loretta AnneliseUniversity of Cape TownWorld Constitutionalism

Fershee, Joshua P.University of North Dakota School of LawEnergy Subsidies

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XVIII • BERKSHIRE ENCYCLOPEDIA OF SUSTAINABILITY: THE LAW AND POLITICS OF SUSTAINABILITY

Fletcher, Th omas H.Bishop’s UniversityLove Canal

Fogel, Daniel S.Schools of Business and Center for Energy,

Environment, and Sustainability at Wake Forest University


Franzreb, Kay E.University of TennesseeEcosystem Management (co-authors: Becky

L. Jacobs, John D. Peine, and Maggie R. Stevens)

Freestone, DavidTh e George Washington University Law

SchoolKyoto ProtocolLaw of the Sea

Freyfogle, Eric T.University of Illinois College of LawNatural Resources LawNuisance Law

Fulkerson, Gregory M.State University of New York, College at

OneontaEcological Modernization Th eory

García Molyneux, Cándido T.Covington & Burling LLPRestriction of Hazardous Substances Directive

Gillroy, John MartinLehigh University

Customary International LawEnvironmental Law—United States and

Canada (co-author: Rebecca M. Bratspies)

Goble, Dale D.University of Idaho, MoscowLacey Act

Goldman, LisaEnvironmental Law InstituteEnvironmental Law—Africa, Saharan

González Márquez, José JuanMetropolitan Autonomous UniversityEnvironmental Law—Central America and the

Caribbean

Guyomard, Ann-IsabelleUniversity of NantesWater Act (France)

Hackett, StevenHumboldt State UniversityWeak vs. Strong Sustainability Debate

Hannam, IanUniversity of New England (Australia)Soil Conservation Legislation (co-author:

Benjamin Boer)

Hasegawa, KoichiUniversity of TohokuEnvironmental Law—East Asia (co-authors:

Jeff rey Broadbent, Yu-Ju Chien, Jun Jin, Dowan Ku, and Taehyun Park)

Hemmings, Alan D.University of CanterburyEnvironmental Law—Antarctica

FM.indd XVIII 12/10/2010 12:28:22 AM


LIST OF CONTRIBUTORS • XIX

Horton, Lynn R.Chapman UniversityGrassroots Environmental Movements

Hussey, KarenAustralian National UniversityWater Security

Jacobs, Becky L.University of TennesseeEcosystem Management (co-authors: Kay E.

Franzreb, John D. Peine, and Maggie R. Stevens)

Jain, Abhimanyu G.National Law School of India

UniversityCod Wars (United Kingdom v. Iceland)International Court of JusticeTrail Smelter Arbitration (United States v.

Canada)

Jain, VaneeshaNational University of Juridical SciencesMontreal Protocol on Substances Th at Deplete the

Ozone Layer

Jin, JunTsinghua UniversityEnvironmental Law—East Asia (co-authors:

Jeff rey Broadbent, Yu-Ju Chien, Koichi Hasegawa, Dowan Ku, and Taehyun Park)

Kaempfer, William H.University of Colorado, BoulderConvention on International Trade in Endan-

gered Species

Karlaganis, GeorgUnited Nations Institute for Training and

Research (UNITAR)Chemicals Legislation and Policy (co-author:

Franz Xaver Perrez)

Khan, AyeshaWest Bengal National University of Juridical

SciencesCivil Disobedience, Environmental

Kho, JamesAteneo de Manila University School of

GovernmentEnvironmental Law—Southeast Asia (co-

authors: Sansanee Dhanasarnsombat, Koh Kheng-Lian, Lye Lin Heng, Chit Chit Myint, Dominic J. Nardi Jr., and Deny Sidharta)

Klein, NatalieMacquarie University Law SchoolEco-Terrorism

Knudsen, Sanne H.University of UtahExxon Valdez

Koh Kheng-LianNational University of SingaporeEnvironmental Law—Southeast Asia (co-

authors: Sansanee Dhanasarnsombat, James Kho, Lye Lin Heng, Chit Chit Myint, Dominic J. Nardi Jr., and Deny Sidharta)

Koivurova, TimoUniversity of LaplandEnvironmental Law—Arctic

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XX • BERKSHIRE ENCYCLOPEDIA OF SUSTAINABILITY: THE LAW AND POLITICS OF SUSTAINABILITY

Kolo, AbbaUniversity of DundeeInvestment Law, Energy (co-author: Peter D.

Cameron)

Kormos, Cyril F.Th e WILD FoundationWilderness Act

Kosloff , LauraEcoSecurities Consulting Ltd.Climate Change Mitigation (co-author: Mark

C. Trexler)

Kotzé, Louis J.North-West UniversityEnvironmental Law—Africa, Sub-Saharan

(co-author: Werner Scholtz)

Krasnova, IrinaMoscow State Academy of LawEnvironmental Law—Russia and Central Asia

(co-authors: Bakhtiyor R. Mukhammadiev and Dinara Ziganshina)

Ku, DowanEnvironment and Society Research InstituteEnvironmental Law—East Asia (co-authors:

Jeff rey Broadbent, Yu-Ju Chien, Koichi Hasegawa, Jun Jin, and Taehyun Park)

Liu, JingjingVermont Law SchoolEnvironmental Law—China (co-author:

Adam Moser)

Lye Lin HengNational University of SingaporeEnvironmental Law—Southeast Asia (co-

authors: Sansanee Dhanasarnsombat, James Kho, Koh Kheng-Lian, Chit Chit Myint, Dominic J. Nardi Jr., and Deny Sidharta)

MacKenzie, Catherine P.University of CambridgeEducation, Environmental Law

Majzoub, TarekConsultant in International Water LawEnvironmental Law—Arab Region (co-author:

Fabienne Quilleré-Majzoub)

Mank, Bradford C.University of Cincinnati College of LawMassachusetts v. Environmental Protection

Agency

Marauhn, Th iloUniversity of GiessenEnvironmental Law—Europe (co-author: Ayse

Martina Boehringer)Environmental Law, Soft vs. Hard (co-author:

Ulrich Beyerlin)

McIntyre, OwenUniversity College CorkGabčíkovo–Nagymaros Dam Case (Hungary v.

Slovakia)

Miles, KateUniversity of SydneyInvestment Law, Foreign

Milne, Janet E.Vermont Law SchoolGreen Taxes

Mintz, Joel A.Nova Southeastern UniversityEnforcement

Moncel, RemiWorld Resources InstituteCopenhagen Climate Change Conference 2009

FM.indd XX 12/10/2010 12:28:22 AM


LIST OF CONTRIBUTORS • XXI

Moser, AdamVermont Law SchoolEnvironmental Law—China (co-author:

Jingjing Liu)

Moynihan, RubyUniversity of DundeeTransboundary Water Law (co-author: Patricia

Wouters)

Mukhammadiev, Bakhtiyor R.United States Embassy, TashkentEnvironmental Law—Russia and Central Asia

(co-authors: Irina Krasnova and Dinara Ziganshina)

Myint, Chit ChitSEEgreen, Myanmar (Burma)Environmental Law—Southeast Asia (co-

authors: Sansanee Dhanasarnsombat, James Kho, Koh Kheng-Lian, Lye Lin Heng, Dominic J. Nardi Jr., and Deny Sidharta)

Nagle, John CopelandUniversity of Notre DameClean Air ActEndangered Species Act

Nardi, Dominic J., Jr.University of MichiganEnvironmental Law—India and Pakistan (co-

author: Armin Rosencranz)Environmental Law—Southeast Asia (co-

authors: Sansanee Dhanasarnsombat, James Kho, Koh Kheng-Lian, Lye Lin Heng, Chit Chit Myint, and Deny Sidharta)

Newall, Adrian DiCiannoEnergy consultant, Westfi eld, New JerseyEnergy Conservation Incentives

Nolon, Sean F.Vermont Law SchoolEnvironmental Dispute Resolution

Norton, BryanGeorgia Institute of TechnologyIntergenerational Equity

Ormond, Th omasRegional government of South Hesse, GermanyWaste Shipment Law

Ortuzar, Jr., AntonioBaker & McKenzie, SantiagoEnvironmental Law—South America (co-authors:

Renata Campetti Amaral, Gustavo Boru-chowicz, Alejandra Bugna, Alessandro De Franceschi da Cruz, María Eugenia Reyes, María Victoria Romero, and Cristina Rueda)

Pardo Buendia, MercedesUniversity Carlos III of MadridPrinciple-Based Regulation (co-author: Luciano

Parejo)

Parejo, LucianoUniversity Carlos III of MadridPrinciple-Based Regulation (co-author: Mer-

cedes Pardo Buendia)

Park, TaehyunKangwon UniversityEnvironmental Law—East Asia (co-authors:

Jeff rey Broadbent, Yu-Ju Chien, Koichi Hasegawa, Jun Jin, and Dowan Ku)

Peine, John D.University of TennesseeEcosystem Management (co-authors: Kay E.

Franzreb, Becky L. Jacobs, and Maggie R. Stevens)

FM.indd XXI 12/10/2010 12:28:22 AM


XXII • BERKSHIRE ENCYCLOPEDIA OF SUSTAINABILITY: THE LAW AND POLITICS OF SUSTAINABILITY

Pellander, ErikUniversity of CologneConvention on Long-Range Transboundary Air

PollutionMOX Plant Case (Ireland v. United

Kingdom)United Nations—Overview of Conventions and

Agreements

Perrez, Franz XaverAmbassador, Federal Offi ce for the Envi-

ronment, SwitzerlandChemicals Legislation and Policy (co-author:

Georg Karlaganis)

Pritchard, DaveScientifi c & Technical Review Panel, Con-

vention on WetlandsConvention on Wetlands

Quilleré-Majzoub, FabienneUniversity of Rennes 1Environmental Law—Arab Region (co-author:

Tarek Majzoub)

Reyes, María EugeniaBaker & McKenzie, CaracasEnvironmental Law—South America (co-

authors: Renata Campetti Amaral, Gustavo Boruchowicz, Alejandra Bugna, Alessandro De Franceschi da Cruz, Antonio Ortuzar Jr., María Victoria Romero, and Cristina Rueda)

Rhodes, CatherineUniversity of Manchester School of LawBiotechnology Legislation

Rhyne, Stephen K.Partner, K&L Gates LLPClimate Change Disclosure—Legal Framework

Ripa Juliá, IsabelIndependent scholar, Logroño, SpainConvention on Biological Diversity

Roller, GerhardUniversity of Applied SciencesPolluter Pays Principle

Romero, María VictoriaBaker & McKenzie, CaracasEnvironmental Law—South America (co-

authors: Renata Campetti Amaral, Gustavo Boruchowicz, Alejandra Bugna, Alessandro De Franceschi da Cruz, Antonio Ortuzar Jr., María Eugenia Reyes, and Cristina Rueda)

Rose, Justin GregoryUniversity of South Pacifi cEnvironmental Law—Pacifi c Island Region

Rosencranz, ArminStanford UniversityEnvironmental Law—India and Pakistan (co-

author: Dominic J. Nardi Jr.)

Rowell, ArdenUniversity of Illinois College of LawTort Law

Rueda, CristinaBaker & McKenzie, BogotáEnvironmental Law—South America (co-

authors: Renata Campetti Amaral, Gustavo Boruchowicz, Alejandra Bugna, Alessandro De Franceschi da Cruz, Antonio Ortuzar Jr., María Eugenia Reyes, and María Vic-toria Romero)

FM.indd XXII 12/10/2010 12:28:23 AM


LIST OF CONTRIBUTORS • XXIII

Sachs, Noah M.University of Richmond School of LawRegistration, Evaluation, Authorisation, and

Restriction of Chemicals

Sarna, SatyajitAdvocate, Delhi High CourtConvention for the Prevention of Pollution From

ShipsConvention to Combat Desertifi cation

Scholtz, WernerNorth-West UniversityEnvironmental Law—Africa, Sub-Saharan

(co-author: Louis J. Kotzé)

Schorr, David B.Tel Aviv University Faculty of LawEnvironmental Law—Israel

Serkin, ChristopherBrooklyn Law SchoolLand Use—Regulation and Zoning

Sharma, CharuCity University of Hong KongChernobyl

Shearing, SusanSydney Law SchoolEnvironmental Law—Australia and New

Zealand (co-author: Vernon Tava)

Sidharta, DenySoemadipradja & TaherEnvironmental Law—Southeast Asia (co-

authors: Sansanee Dhanasarnsombat, James Kho, Koh Kheng-Lian, Lye Lin Heng, Chit Chit Myint, and Dominic J. Nardi Jr.)

Sims, Michael D.Sims Family EnterprisesSilent Spring

Stevens, Maggie R.University of TennesseeEcosystem Management (co-authors: Kay E.

Franzreb, Becky L. Jacobs, and John D. Peine)

Straka, Th omas J.Clemson UniversityForest Reserve Act

Tava, VernonUniversity of AucklandEnvironmental Law—Australia and New

Zealand (co-author: Susan Shearing)

Taylor, PrueUniversity of AucklandCommon Heritage of Mankind Principle

Techera, Erika J.Macquarie UniversityConvention for the Prohibition of Fishing with

Long Drift Nets in the South Pacifi c

Teisl, Mario F.University of MaineEcolabeling

Telesetsky, AnastasiaUniversity of Idaho College of LawReal Property Law

Th rasher, Rachel D.Pardee Center for the Study of the Longer-

Range Future, Boston UniversityFair TradeFree Trade

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XXIV • BERKSHIRE ENCYCLOPEDIA OF SUSTAINABILITY: THE LAW AND POLITICS OF SUSTAINABILITY

Trexler, Mark C.Sustainability and Innovation Division, Det

Norske VeritasClimate Change Mitigation (co-author: Laura

Kosloff )

Van Dyke, Jon M.University of HawaiiInternational Law

Voigt, ChristinaUniversity of OsloDevelopment, Sustainable—Overview of Laws

and Commissions

Ware, AlynInternational Association of Lawyers

Against Nuclear ArmsNew Zealand Nuclear Free Zone, Disarmament,

and Arms Control Act

Westra, LauraUniversity of WindsorJustice, EnvironmentalRefugees, Environmental

Wouters, PatriciaUniversity of DundeeTransboundary Water Law (co-author: Ruby

Moynihan)

Wowk, Kateryna M.University of DelawareFishing and Whaling Legislation (co-author:

Duncan E. J. Currie)

Ziganshina, DinaraUniversity of DundeeEnvironmental Law—Russia and Central Asia

(co-authors: Irina Krasnova and Bakhtiyor R. Mukhammadiev)

Zyglidopoulos, Stelios C.University of CambridgeBrent Spar

FM.indd XXIV 12/10/2010 12:28:23 AM


XXV

The Berkshire Encyclopedia of Sustainability

Volume 1: • The Spirit of Sustainability

Volume 2: • The Business of Sustainability

Volume 3: • The Law and Politics of Sustainability

Volume 4: • Natural Resources and Sustainability

Volume 5: • Ecosystem Management and Sustainability

Volume 6: • Measurements, Indicators, and Research Methods for Sustainability

Volume 7: • China and India: Assessing Sustainability

Volume 8: • The Americas and Oceania: Assessing Sustainability

Volume 9: • Afro-Eurasia: Assessing Sustainability

Volume 10: • The Future of Sustainability

FM.indd XXV 12/10/2010 12:28:23 AM


XXVI

This, the third volume of the Berkshire Encyclopedia of Sustainability, is one that early on gave a sense of what

the fi nal ten-volume publication would become. From the initial project-planning stages, when tracking the devel-opment of environmental sustainability in regions around the world, the nuts and bolts of law and politics surfaced as a key aspect of virtually every topic explored.

But Th e Law and Politics of Sustainability provides more than hard facts about the mechanics of environmental law—the legislation, directives, conventions, and trea-ties. A good portion of it covers concepts that foster hope for a sustainable future and warn of the need for precau-tion: articles such as “Intergenerational Equity,” “World Constitutionalism,” “Principle-Based Regulation,” and “Common Heritage of Mankind Principle” examine dif-ferent schools of thought in environmental law. Th e schol-ars and experts who contributed to this volume raise many questions: Do current laws take into account future gen-erations of people who don’t have control over events in the past? Is international environmental law eff ective at protecting the environment, or is enforcement best left to individual nations? Is an ad hoc approach to environmen-tal law—one in which laws are applied in piecemeal fash-ion, rather than waiting for consensus that may or may not happen—more eff ective than a comprehensive approach to law? We don’t have enough room in an introduction to delve into the details of these issues, but we invite readers to explore several articles that do. “Customary Interna-tional Law,” “Enforcement,” “International Law,” “Envi-ronmental Law, Soft vs. Hard,” and “Ocean Zoning,” as well as those mentioned at the beginning of the para-graph, discuss facets of the world that is environmental law, both as it exists now and how it should exist (as part of a category referred to as “normative” law).

We divide our coverage into seven basic categories set forth in our Reader’s Guide (see pages ix–xii), a list of topics and cross-references to articles intended to put the

scope of the volume into perspective: Case Studies articles describe incidents (such as the Bhopal chemical disas-ter and the discovery of toxic waste under Love Canal), important conferences, and infl uential publications (Silent Spring) or rulings (Massachusetts v. Environmental Protec-tion Agency) that establish precedent in environmental law. Articles listed under Concepts and Th eories focus on their respective origins, history, development, and application in the twenty-fi rst century, especially relating to their international impact. Conventions, Conferences, Reports, and Protocols covers groundbreaking examples of how environmental policy has been and continues to be shaped (see “Brundtland Report” and “Convention on Biological Diversity”). Th e category Environmental Law by Nation / Region includes articles that demonstrate how sustain-ability plays a role in legal systems around the world, and how those systems can contribute to or aff ect interna-tional negotiations or agreements. Under Legal Instru-ments and Regulatory Law we list articles examining major acts (see “Clean Air Act” and “European Union Green-house Gas Emission Trading Scheme”) or practices such as ecolabeling and green taxation. Th e Social Issues cat-egory embodies a diverse range of concerns with articles such as “Armed Confl ict and the Environment,” “Educa-tion, Environmental Law,” and Refugees, Environmen-tal.” Finally, articles under Water / Maritime Issues address sustainability concerns about oceans and seas, wetlands, marine life, waste shipping, and water scarcity, among others.

As is the case with nearly any list of anything, some articles fi t in more than one category, and some won’t eas-ily fi t into any category. Are tort law and nuisance law, for instance, to be considered as concepts or legal instru-ments? Th e answer is both. Making such comparisons and distinctions brings us back to broader questions that sound fairly straightforward—What is environmental law? And what, exactly, is sustainability? In reality neither

Introduction to The Law and Politics of Sustainability

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INTRODUCTION • XXVII

is particularly easy to answer. But we will try, since that is what encyclopedias are good for.

Ecological, Economic, and Equitable Sustainability

Like editors of other volumes in the series, we consid-ered diff ering ideas of what constitutes “real” sustainabil-ity while working on this volume. As Steven C. Hackett explains in “Weak vs. Strong Sustainability Debate,” there are two main schools of thought characterized by two clearly loaded terms, “weak” and “strong.” Th e “weak” sustainability camp believes that waiting for perfect solu-tions to environmental problems is unrealistic, and that it is better to have “pretty good” law and policy in place than to wait for perfect law and policy that may never material-ize. As Hackett writes,

Residents of failed states who are suff ering from violent

confl ict, extreme poverty, and corruption, for example,

are unlikely to sustain natural capital stocks [i.e., the

value inherent in the environment] for future genera-

tions until their pressing economic, social, and political

problems are resolved.

Meanwhile, the “strong” sustainability camp (and here we quote Hackett again), argues that “pretty good” laws are counterproductive: “Mitigation measures such as fi sh hatcheries or constructed wetlands that are built to off set declining natural capital are not consistent with strong sustainability.” In other words, constantly passing legisla-tion to alleviate the eff ects of coastal erosion from climate change and other factors, rather than addressing the heart of the problem—climate change itself—inevitably will lead to the depletion of our natural capital.

It has been a wonderful challenge for a publishing

company that has not had much experience with the

law to enter what many consider an esoteric fi eld.

Th e scope of our work became obviously daunting

the more we dug into it, but this was also when our

network of experts showed that they would help us

work across disciplines (as well as geographical bor-

ders) in the world of law and politics. We achieved

our goal: a volume of articles comprehensible to the

layperson interested in how law and politics shape

sustainable development.

Each of the volume editors—Klaus Bosselmann,

Daniel S. Fogel, and J. B. Ruhl, as well as associate

editor Patricia Wouters—contributed insight, energy,

and enthusiasm from the start; each worked tire-

lessly in a unique way to make this volume, the third

in the Berkshire Encyclopedia of Sustainability, come

to life. Berkshire had never worked with law profes-

sors extensively before, although we certainly have

welcomed them as contributors to the Encyclopedia

of World History. In developing this volume, we found

ourselves with contributors at universities, law fi rms,

courts, and other venues in over thirty countries, all

of whom brought valuable perspective to the vol-

ume.

As the reader will discover in the section on

environmental law by region, laws in diff erent lands

come in a bewildering variety. Perhaps more surpris-

ing, though, is that countries around the world, often

because of a history of colonization, have similar

frameworks and tools for tackling environmental

challenges. Custom, as well as colonization, is argu-

ably an equally strong infl uence on law and policy. It

is our hope that the comparisons in these pages will

contribute to our ability to learn from one another.

Karen ChristensenGreat Barrington, Massachusetts

PUBLISHER’S NOTE: MAKING THE LAW AND POLITICS OF SUSTAINABILITY

o answer. But we will try, sincs are gog od for.

conomic, andstain

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sustainable developme

Each of the volume editors—Klaus Bosselmann,

Daniel S. Fogel, and J. B. Ruhl, as well as associate

editor Patricia Wouters—contributed insight, energy,

and enthusiasm from the star each worked tire-

lessly in a unique way to make this volume, the third

in the Berkshire En yclopedia come

life. Berkshire had never worked with law profes-

tensively before, although we certainly have

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OTE: MAKING THE LA ICS OF S AINAB

FM.indd XXVII 12/10/2010 12:28:25 AM


XXVIII • BERKSHIRE ENCYCLOPEDIA OF SUSTAINABILITY: THE LAW AND POLITICS OF SUSTAINABILITY

Similarly loaded nomenclature exists to describe international law: “soft” international law is not legally binding, while “hard” law is. Naturally the terms “soft” and “hard” carry the connotation that soft law is not as valuable as hard law. But as Ulrich Beyerlin and Th ilo Marauhn explain in their article comparing the two, a “soft law approach allows states to take action at a time when they do not (yet) want to enter into a legally bind-ing commitment.” Th e hard law approach, on the other hand, is useful when several countries must obey an envi-ronmental law to make it eff ective. Th e European Union’s Restriction of Hazardous Substances Directive (RoHS), which has power beyond the EU’s shores, provides an example: if it were not a hard law, the directive would lose much of its considerable “teeth.”

Sustainability is the greatest challenge for human-ity. As editors of this volume (one of us sides mostly with the “strong” camp in the sustainability debate) we set forth our belief that law and policy must there-fore address how this challenge can be met—especially considering that in the last forty years, law (and policy) development has focused on the environment, but not on sustainability.

To many ears this will sound like a riddle: why wouldn’t a law that protects the environment promote sustainability? Th e answer involves environmental law’s largely re-active character. Although environmental law has responded to challenges as perceived at the time, it has not really taken a pro-active, comprehensive approach that includes concern for ecological sustainability at its core. Sustainable development policy, as it embodies the intersection of environmental, economic, and equity poli-cies, leads to the only avenue by which we can meaning-fully speak of sustainability law.

Here is an example. All oil tankers that ply the world’s waters are required as of 2010 by the International Mar-itime Organization (and MARPOL annex 1) to have double hulls. Obviously this design is an improvement on having fragile supertankers full of oil spilling their cargo on the world’s shores. If we lived in an ecologically sustainable manner, however, perhaps we wouldn’t need to have double-hulled supertankers in the fi rst place. Sus-tainability law promoting the kinds of innovations and changes in global lifestyle could wean the richest nations from their overdependence on (and overconsumption of) essentially un-renewable resources, protect underdevel-oped and developing countries in danger of losing (or being exploited for) resources that provide livelihoods

and sustenance (such as fi sh and wildlife), and thus would enhance our environment.

Why is the shift to sustainability law so important? Th e 1972 Stockholm conference marked the beginning of the modern era of environmental law and policy. (Two overview articles, “United Nations—Overview of Con-ventions and Agreements” and “Development, Sustain-able—Overview of Laws and Commissions,” discuss the Stockholm conference, offi cially known as the Declara-tion of the United Nations Conference on the Human Environment.) Since that time the world’s population has increased from less than 4 billion to nearly 7 billion; most forecasters point to a fi gure of around 9 billion by 2050. During the same period the Earth’s regenerative capac-ity (its “biocapacity”) has been increasingly depleted by human demand. According to the World Wildlife Fed-eration Living Planet report, launched at the Biodiver-sity Conference in Nagoya, Japan, in October 2010, our current “ecological footprint” (the amount of biologically productive land and marine areas required for human consumption), requires 50 percent more of the Earth’s biocapacity than it did in the 1970s—that is to say, “1.5 planet’s worth”). Clearly such use equates to living unsus-tainably. Sustainable development that incorporates poli-cies to address the economics and equity of environmental protection would bring us back to living within the limits of the Earth’s biocapacity.

Th e notion of “sustainability law and policy” describes an ambition, not the status quo. Th is volume aims to help evaluate the status quo against the ambition. Its contri-butions present contemporary laws, policies, instruments, social movements, and strategies. How do they measure up? What are their successes and shortcomings and how can we learn from them to work toward genuine sustain-ability law and policy?

Technology and the Future

Th e Spirit of Sustainability, Volume 1 of this series, addresses (in part) one aspect of how technology will aff ect the future, with many articles exploring the ethi-cal dilemmas involved in technology and development, and how the question of sustainability relates to them. Much of Volume 2, Th e Business of Sustainability, exam-ines ways in which technology can be used to pro-mote sustainability and the economy at the same time, whether through devising clever new forms of renew-able energy or through utilizing techniques such as

FM.indd XXVIII 12/10/2010 12:28:27 AM


“biomimicry,” the practice of mimicking nature while designing products.

In this volume we focus on technology as well (but from a diff erent angle), with a number of articles that discuss the processes and motivations for enacting legislation to prepare the world for a crowded and uncertain future. People two decades ago, apart from a very select group of visionaries, could have no idea of the sort of bewilder-ing technology the very near future had in store. Simi-larly, despite the ubiquitous presence and proliferation of advanced technology worldwide, it’s still hard to predict what innovation lies ahead. Some of it is bound to be won-derful, some of it not. Some of it will seem wonderful. A medical breakthrough, for instance, might extend lives for years, if not decades, and yet the health care industry has lagged behind other sectors in making a commitment to the sustainable development (economically, environmen-tally, and equitably) of the hospitals and outpatient clinics, chronic care facilities, nursing homes, and hospice pro-grams necessary to support those who benefi t from the breakthrough. A similar example can be cited in the devel-opment of certain technologies themselves, as the industry comes to terms with disposing of electronic waste laden with toxic metals and unbiodegradable plastics.

As the sheer number of people on the planet puts more and more pressure on the Earth’s biocapacity, many believe it makes sense to lay legal foundations now, so that future generations—those who have no control over laws we’re currently passing—can lead more sustainable lives. Here’s where the precautionary principle, another concept explored in Volume 3, comes into play.

Th e idea of the precautionary principle is a simple one: all legislation should be enacted with the idea that if we do not know the ramifi cations of something—say, nano-technogy—it is best to act on the part of discretion. Vari-ous contributors to this volume stress the importance of such caution: David Azoulay in “Nanotechnology Legis-lation,” Catherine Rhodes in “Biotechnology Legislation,” Georg Karlaganis and Franz Xaver Perrez in “Chemicals Legislation and Policy,” Rebecca Connolly in “Geneti-cally Modifi ed Organisms Legislation,” and A. Karim Ahmed in “Precautionary Principle” posit the need for governments, whether individually or as a cohesive bloc, to regulate the unknown now, before it is too late. Th e European Union’s relatively new policy relating to chemi-cals shows the precautionary principle in action: “no data, no market.” If the properties of a substance are unknown, the substance cannot be sold.

Th e challenge, of course, is applying this sort of think-ing everywhere, not only to the European Union or to other wealthy states or blocs of states. China’s predica-ment, after years of breakneck-speed industrialization and the resulting economic boom, comes immediately to mind—environmental regulations abound in the country, but lack of enforcement makes them an ineff ectual rem-edy for the pollution and severe health hazards besetting the country’s 1.33 billion people. Two articles discuss the challenges facing China and its close neighbors: “Envi-ronmental Law—China” and “Environmental Law—East Asia.”

Authors versed in the law are people fi rmly grounded in reality. Th e contributors to this volume know that ways to clean up and prevent oil pollution are not the stuffof dreams but of concrete steps taken toward sustainable goals. Obviously, as we discussed at the beginning of this introduction, the current state of environmental law leaves much to be desired. Th e Deepwater Horizon disaster in the Gulf of Mexico and the toxic sludge that crept over several towns in Hungary during the creation of this vol-ume attest to that. Steps have been made, but there is vast room for improvement.

One place to begin, of course, is education. People armed with the knowledge to pass sensible legislation are a powerful tool for sustainability. As Catherine P. MacK-enzie writes in “Education, Environmental Law”:

Over the fi rst decade of the twenty-fi rst century, many

law schools have recognized that the study of case law

and existing treaty obligations is not, in itself, suffi -

cient. Law students must learn to negotiate and draft

national and international law, to identify the strategic

trade-off s that are made in every negotiating session, to

understand environmental economics in order to enable

them to structure incentives correctly, and to manage

the complex scientifi c and technical information that

usually underpins environmental law.

We intend these pages as a starting point for the next generation of people interested in changing how environ-mental law is practiced, from reacting to environmental disasters after the fact to promoting laws and policy that will allow the Earth not only to be less polluted but to actually improve in the future. Th ere are, of course, any number of extremely valuable books that have been writ-ten on the subject. We hope this will be a valuable addi-tion to the literature.

INTRODUCTION • XXIX

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XXX • BERKSHIRE ENCYCLOPEDIA OF SUSTAINABILITY: THE LAW AND POLITICS OF SUSTAINABILITY

Acknowledgments

We would be remiss if we did not mention some of the people whose advice we depended on throughout the making of this volume. We would fi rst like to thank the following people for helping the volume editors review the manuscripts: William Alford, Harvard University; Jamie Cassels, University of Victoria; David Freestone, George Washington University Law School; Marc Gaden, Univer-sity of Michigan; John Martin Gillroy, Lehigh University; Th omas Ormond, government of South Hesse, Germany; and last but not least, associate editor Patricia Wouters, University of Dundee, for her outstanding networking and support.

In addition, we’d like to thank the following people for their advice, and in general for taking time to help us develop this and other volumes of Th e Encyclopedia of Sustainability: Eric Freyfogle, University of Illinois Col-lege of Law; Benjamin J. Richardson, University of Brit-ish Columbia Law School; Steven Johnson, University of KwaZulu-Natal; Louis Kotzé, North-West University; Josh Eagle, University of South Carolina; Dave Pritchard, Scientifi c & Technical Review Panel, Convention on Wet-lands; Th omas Straka, Clemson University; William Rees, University of British Columbia; Janet Milne, Vermont Law School; Joel Mintz, Nova Southeastern University; David Schorr, University of Tel Aviv; Daniel Owen, Fenners Chambers; Riccardo Bocco, Graduate Institute of Interna-tional and Development Studies; Leigh Raymond, Purdue University; Daniel Scott, Indiana University School of Law, Indianapolis; Joanne Scott, University College London; Josh

Duke and Jeremy Firestone, University of Delaware; Remi Moncel, World Resources Institute; Shawkat Alam, Mac-quarie University, and William Andreen, University of Alabama School of Law.

Special thanks go to those who shared their expertise on particular regions or topics: Alan Hemmings, Uni-versity of Canterbury, and Koivurova Timo, University of Lapland, for their advice on coverage of polar environ-mental law; Dominic Nardi Jr., University of Michigan, for coordinating the writing of “Environmental Law—Southeast Asia” with numerous far-fl ung colleagues; Renata Amaral and Alessandro De Franceschi da Cruz of the law fi rm Baker & McKenzie, as well as their col-leagues at branches of Baker & McKenzie throughout South America; and Irina Krasnova, Moscow State Acad-emy of Law, Dinara Ziganshina, University of Dundee, and Bakhtiyor R. Mukhammadiev, United States Embassy in Tashkent, Uzbekistan, for coordinating on the writing of “Environmental Law—Russia and Central Asia.”

We extend our hearty thanks to all of these people, as well as to all of the contributors to Th e Law and Poli-tics of Sustainability. Finally, we want to express our sin-cere gratitude to Bill Siever and Karen Christensen from Berkshire Publishing Group for their outstanding work and advice, and for their confi dence in us as we made this volume a reality.

Th e EditorsKlaus Bosselmann

Daniel S. FogelJ. B. Ruhl

FM.indd XXX 12/10/2010 12:28:28 AM


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