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This page intentionally left blank Environmental Protection, Law and Policy Environmental law is shaped by the results of research in many different fields. Legal regulation and legal activities are supported and legitimated by the work of biologists, chemists, economists, engineers, geneticists and physicists but also underpinned by cultural assumptions whose sources – philosophies, popular culture, ecological theories – are diverse and sometimes obscure but arguably no less influential than those from more traditional scientific domains. A full understanding of environmental problems requires students, practitioners and academics working within the discipline of environmental law at whatever level to engage with the concepts and methods employed by disciplines other than law. This book explores environmental law from a range of perspectives, emphasising the policy world from which it is drawn and nourished. It seeks to introduce students to a wide variety of non-legal material while placing that material firmly in a legal context. A range of regulatory techniques is explored through a close examination of both pollution control and land use. The highly complex nature of current environmental problems, demanding sophisticated and responsive legal controls, is illustrated by several in-depth case studies including legal and policy analysis of the highly contested issues of genetically modified organisms and renewable energy projects. Jane Holder is Reader at University College London. Maria Lee is Senior Lecturer at King’s College London. Both have published widely in environmental law. Environmental Protection, Law and Policy Text and Materials Second Edition JANE HOLDER AND MARIA LEE CAMBRIDGE UNIVERSITY PRESS Cambridge New York Melbourne Madrid Cape Town Singapore São Paulo Cambridge University Press The Edinburgh Building Cambridge CB2 8RU UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org 9780521690263 © Cambridge University Press 2007 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2007 ISBN-13 978-0-511-29659-8 eBook (NetLibrary) ISBN-10 0-511-29659-2 eBook (NetLibrary) ISBN-13 978-0-521-69026-3 paperback ISBN-10 0-521-69026-9 paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. For Sue Elworthy Contents page Table of EU legislation xiv Table of international conventions xviii Table of legislation xxI Table of cases xxiii Acknowledgements xxix Preface xli Part I Introduction: Law in Context 1 Preface to Part I 1 1 Environmental law in context 9 1 Introduction 9 2 The scientific paradigm (a) The role of science 12 (b) Risk assessment and the environment 15 (c) Scientific uncertainty and the precautionary principle 18 (d) Accounting for the authority of science 31 3 Environment and economics (a) Cost benefit analysis 37 4 Beyond expertise: the political (and popular) dimension of environmental protection 40 5 ‘Alternative’ ways of viewing the world: ecological theories (a) Deep ecology 48 (b) Social ecology 50 (c) Ecofeminism 51 (d) Gaia theory 54 (e) Ecological law? 55 6 Conclusions 57 7 Further reading 59 2 Genetically modified organisms: introducing a dilemma 1 Introduction 61 2 Environmental concerns 64 3 Human health concerns 64 4 ‘Other’ issues 65 5 The benefits of GM technology 72 6 Consultation and beyond in the UK (a) Science and GMOs 77 (b) Economics and GMOs 79 (c) The public debate 79 (d) The public dialogue on GMOs: the response 81 7 Conclusions 83 8 Further reading 84 3 Public participation in environmental decision making 1 Introduction 85 2 The attractions of public participation (a) The process rationale for public participation 87 (b) The substantive rationale for public participation 93 (c) The Aarhus Convention 97 (d) Why participation? 100 3 Access to environmental information 101 4 Public participation in environmental decision making 110 5 Access to justice in environmental matters 114 6 The challenges of public participation 128 7 Conclusions 132 8 Further reading 134 Part II The EU Context Preface to Part II 4 The development and state of EU environmental law and policy 1 Introduction 143 2 Current EU environmental law and policy (a) Environmental policy 145 (b) Legislative framework 151 3 An evolutionary framework: four phases (a) First phase: recognising the need for action 156 (b) Second phase: establishing a firm legal base 158 (c) Third phase: ‘new’ environmental governance and ‘integration’ 164 (d) Fourth phase: constitutionalism 170 4 ‘Free and fair trade’? 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