Category Archives: Regulation

Workers’ Rights and Pollution Control in Delhi (K.D. Alley & D. Meadows)

Authors

K.D. Alley & D. Meadows

Keywords

Human Rights, Environmental Rights, Constitutional Law, India, Right to a Clean Environment, Pollution

Abstract

Within India’s judicial interpretation of constitutional rights there exists a close link between environmental values and human rights. Yet in some instances court cases defending the right to a clean environment have actually jeopardized the job security of India’s poorest laborers and have led to abuses of human rights. One such example is the 1995 Supreme Court case MC Mehta v. Union of India, which ordered the closure and relocation of polluting industries in Delhi. In this instance the Court responded to middle-class appeals for pollution remediation through a broad reading of the constitution’s fundamental right to life principle, at the same time adversely affecting tens, even hundreds, of thousands of the city’s poorest workers.

The spotty interest of the government’s legislative and executive branches in addressing the environmental problems created by both private and public sector development initiatives has provided the impetus for legal activism in India. Parliament has enacted environmental legislation, but enforcement has been profoundly lax, and governmental pollution control boards have been lenient in regulating industrial and vehicular emissions and industrial and municipal waste treatment facilities. Moreover, projects involving air and water pollution, massive human displacement, and the destruction of natural ecosystems continue to go forward with the imprimatur of formal administrative approval, based on only perfunctory or formalistic compliance with regulatory norms.

Citation

(2004) 11 Human Rights Dialogue 15

Paper

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Gas Flaring, Environmental Corporate Responsibility and the Right to a Healthy Environment: The Case of the Niger Delta (B.E. Umukoro)

Author

Brown E. Umukoro

Keywords

Human Rights, Environmental Rights, Right to Life, Constitutional Law, Nigeria, Oil, Public Policy

Extract

Introduction
[…]
In this chapter, we thus discuss the national legal framework for the continuation of gas flaring in Nigeria, the advancement of the concept of threat to right to life to include harmful activities of multinational companies and how these companies can be held accountable for the environmental degradation caused by oil exploration activities in Nigeria. It then closes with some valuable suggestions for strengthening the will of the Nigerian government in overcoming its weakness in the effective enforcement of environmental laws and policies.

Citation

(2009) in Law and Petroleum Industry in Nigeria: Current Challenges, 49, Eneri and Deinduomo (Eds.), Malthouse Law Books

Paper

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The Need for an Interdisciplinary Approach to Norm Diffusion: The Case of Fair and Equitable Benefit-sharing (L. Parks and E. Morgera)

Authors

Louisa Parks and Elisa Morgera

Keywords

benefit-sharing, international law, environmental law, human rights law, human rights, oceans law, regulation, national law, regional law, indigenous peoples, local communities, norm diffusion, scholarship, conservation, sustainability, natural resources, power asymmetry

Abstract

No systematic study discusses the evolution of fair and equitable benefit-sharing across various areas of international law (environment, human rights, oceans), as well as at different levels of regulation (regional and national laws and guidelines, private law contracts, transboundary codes of conduct, customary laws of indigenous peoples and local communities). This article explores the usefulness of an interdisciplinary approach to the study of norm diffusion for understanding how and why fair and equitable benefit-sharing is articulated in different sites. The article discusses mechanisms, actors and frames in norm diffusion, drawing on literature from sociology, international relations and law. The article uncovers underlying similarities in scholarship on norm diffusion across the disciplines considered. It also reflects on the value of an interdisciplinary approach that encourages legal scholars to consider the implications of power structures in the diffusion of law, while the nuances of legal knowledge may lead other social scientists to revisit accepted findings on norm diffusion. These findings appear particularly useful for informing an assessment of the potential of fair and equitable benefit-sharing to promote the conservation and sustainable use of natural resources in a fair and equitable manner in the face of power asymmetries.

Citation

(2015) 24:3 Review of European, Comparative and International Environmental Law 353-367

Paper

The Need for an Interdisciplinary Approach to Norm Diffusion: The Case of Fair and Equitable Benefit-sharing

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Climate Change Adaptation and the Structural Transformation of Environmental Law (J. B. Ruhl)

Author(s)

J. B. Ruhl

Keywords

climate change, environmental law, greenhouse gas emissions, adaptation, mitigation, policy, pollution, land law, decision methods, regulation, conciliation

Abstract

The path of environmental law has come to a cliff called climate change, and there is no turning around. As climate change policy dialogue emerged in the 1990s, however, the perceived urgency of attention to mitigation strategies designed to regulate sources of greenhouse gas emissions quickly snuffed out meaningful progress on the formulation of adaptation strategies designed to respond to the effects of climate change on humans and the environment. Only recently has this “adaptation deficit” become a concern now actively included in climate change policy debate. Previously treating talk of adaptation as taboo, the climate change policy world has begrudgingly accepted it into the fold as the reality of failed efforts to achieve global mitigation policy has combined with the scientific evidence that committed warming will continue the trend of climate change well into the future regardless of mitigation policy success.

But do not expect adaptation policy to play out for environmental law the way mitigation policy has and is likely to continue. Mitigation policy has been framed as an initiative primarily within the domain of environmental law – a form of pollution control on steroids – and thus it will be environmental law that makes the first move and other policy realms that apply support or pushback. By contrast, environmental law does not “own” adaptation policy; rather, numerous policy fronts will compete simultaneously for primacy and priority as people demand protection from harms and enjoyment of benefits that play out as climate change moves relentlessly forward. This makes it all the more pressing for environmental law, early in the nation’s formulation of adaptation policy, to find its voice and establish its place in the effort to close the adaptation deficit.

Toward that purpose, this Article examines the context and policy dynamics of climate change adaptation and identifies ten trends that will have profound normative and structural impacts on how environmental law fits in: 1) Shift in emphasis from preservationism to transitionalism in natural resources conservation policy. 2) Rapid evolution of property rights and liability rules associated with natural capital adaptation resources. 3) Accelerated merger of water law, land use law, and environmental law. 4) Incorporation of a human rights dimension in climate change adaptation policy. 5) Catastrophe and crisis avoidance and management as an overarching adaptation policy priority. 6) Frequent reconfigurations of trans-policy linkages and trade-offs at all scales and across scales. 7) Shift from “front end” decision methods relying on robust predictive capacity to “back end” decision methods relying on active adaptive management. 8) Greater variety and flexibility in regulatory instruments 9) Increased reliance on multi-scalar governance networks. 10) Conciliation.

Citation

(2009) 40 Environmental Law 343

Paper

Climate Change Adaptation and the Structural Transformation of Environmental Law

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Human Rights and Environmental Regulation (R. M. Bratspies)

Author(s)

Rebecca M. Bratspies

Keywords

environment, regulation, BP Oil Spill, United States, US, legal obligations, participations, fairness, accountability, legitimacy

Abstract

Because environmental regulators exercise vast discretion against a background of scientific uncertainty, the background assumptions they use to guide their decisionmaking are particularly influential. This article suggests that were federal regulators to view themselves as human rights decisionmakers, we might well see a new kind of regulatory decisionmaking emerge–one not only more responsive and transparent but also more likely to enjoy the trust of the American public. Drawing from the BP Oil Spill and the United States regulatory response to climate change this article shows how human rights norms might enrich domestic regulatory processes and help environmental regulators implement their statutory mission of protecting the public welfare. It demonstrates how interpreting domestic legal obligations through the lens of human rights would enhance a commitment to participation, fairness and accountability, thereby making the domestic regulatory process not only better and fairer, but also more likely to be perceived as legitimate by the general public. The article concludes by pointing out some key obstacles the human rights approach for achieving environmental ends.

Citation

(2012) 19 New York University Environmental Law Journal 225.

Paper

Human Rights and Environmental Regulation

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