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Environmental Rule of Law: Making sure our laws achieve their purpose

February 19, 2019

We are running a race to protect the environment, and the environmental rule of law could be the last hurdle.

Since the 1970s, we have witnessed an explosion in environmental law globally: as of 2017, 176 countries around the world have implemented environmental framework laws, 150 countries have enshrined a constitutional right to a healthy environment, and 164 countries have created cabinet-level bodies responsible for environmental protection. But if the first global report on environmental rule of law says anything, it is that “more” does not necessarily mean “better.”

The report, published by UNEP (United Nations Environment Programme) in January 2019, finds that failures in the enforcement of environmental law around the world are exacerbating environmental threats.

The report is the first of its kind to assess, at a global scale, the enforcement and effectiveness of environmental laws, and to introduce environmental rule of law as a framework for addressing gaps between environmental laws on paper and in practice. It presents an opportunity for countries to take stock of the way their environmental laws are enforced, and question how compliance with the law can be improved in the future. 

The time to ask these questions is now – so far no treaty, target, or law has halted the steady stream of environmental challenges. Indeed, the cornucopia of regulations, strategies, standards, deals, orders, objectives, directives, declarations, compacts, contributions, plans, measures or mechanisms have not wound back the environmental degradation experienced in the world over the past few decades.

Climate change escalates, species continue to dwindle, and pollution still fouls the land and sea. Even worse, environmental defenders are also increasingly under threat, as the report documents. Between 2002 and 2013, 908 people (including forest rangers, government inspectors, and local activists) were killed in 35 countries, with 197 killed in 2017 alone.

The UNEP report addresses these concerns by demonstrating the distance between environmental laws and enforcement, and suggesting ways to strengthen compliance with environmental laws. Although countries are growing in their understanding of the links between the environment, the economy, and the security of their people, they often struggle to make good of their legislative intentions. We need the “environmental rule of law” to become the norm, not the exception.

So, what is the “environmental rule of law”?

The environmental rule of law is a set of principles that focus on strengthening environmental laws and decision-making. It requires those who create, interpret, and enforce environmental laws to act fairly and in a manner “consistent with fundamental rights” (s. 1.1.2).

There is not much purpose in having an endangered species protection law, for example, if the law fails to clearly define what “endangerment,” “ecosystem,” or “environment” mean; or if enforcement agencies, like Parks Canada, lack the resources to enforce the law against rule-breakers.

Those kinds of laws present an environmental ‘goal’ but sabotage themselves before they even come into force. It is like having a New Year’s resolution to call your parents more often but having the wrong number in your phone, or constantly rescheduling. Without practical steps towards implementing your resolution, it remains an aspiration. The environmental rule of law provides a mechanism that translates environmental aspirations into effective action.

This set of principles is at the forefront of a new global shift in the way environmental law operates. Environmental laws are increasingly focusing not only on specific environmental problems, but also on underlying systemic issues.

Like an electrical circuit, these environmental legal systems contain multiple discrete elements – lights, batteries, and transformers – which connect through a web of wires. But there is an open switch that must close to complete the circuit. Before the UNEP report, the mentality was that a strong enough political will could close the circuit, but the environmental rule of law is a much stronger mechanism – flipping the switch and bringing the system to life. 

The report sets out the seven guiding principles at the core of the environmental rule of law (s. 1.3):  

  1. Fair, clear, and implementable environmental laws.
  2. Access to information, public participation, and access to justice.
  3. Accountability and integrity of institutions and decision-makers.
  4. Clear and coordinated mandates and roles, across and within institutions.
  5. Accessible, fair, impartial, timely, and responsive dispute resolution mechanisms.
  6. Recognising the mutually enforcing relationship between rights and the environmental rule of law.
  7. Specific criteria for courts to interpret environmental law.

In practice, these principles elevate the ability of communities to understand laws and policy, and improve access to systems that hold decision-makers to account. A ‘fully implemented’ environmental rule of law guarantees that laws develop democratically and achieve, rather than aspire to, their purpose.

What does the environmental rule of law look like?

The overarching theme of the report is the need for environmental rule of law to bridge gaps between environmental laws on paper and in practice. But what are these gaps, and what changes need to be made?

The report answers these questions in four parts: ‘Institutions,’ ‘Civic Engagement,’ ‘Rights’ and ‘Justice.’ Each part explores an element that is at the heart of the environmental rule of law, now and in the future.

Fundamental to the environmental law is knowing who is responsible for addressing environmental problems. The chapter on ‘Institutions’ examines those organizations in society that ensure environmental laws are enforced in a fair and consistent way, and warns of the consequences when institutions are not properly equipped to fulfil this role.

Take Michigan as an example: in 2016, US President Barack Obama declared a state of emergency in the city of Flint because hazardous levels of lead were discovered in the city’s drinking water. Several institutions – the Michigan Department of Environment Quality, the U.S. Environmental Protection Agency, and the Michigan Department of Health and Human Services – had each failed to do their part to properly investigate concerns over water quality.

Even when several institutions have responsibility for an environmental issue, without coordination and effective action the result can be disastrous for ecosystems and for human health. The UNEP report emphasizes how important it is that institutions have a clear mandate, and authority to act, in order to fulfil their responsibility to implement and enforce environmental laws. Without strong institutions, bridging gaps between environmental laws and their implementation on the ground is simply not possible.

The chapter on ‘Civic Engagement’ suggests that upholding the environmental rule of law requires a “whole of society” approach. A key part of this is engagement by governments with civil society and the public.

In 2014, China took steps towards improving its public participation requirements by adding a Chapter on “Environmental Information Disclosure and Public Participation” to its Environmental Protection Law. These new rules require developers to explain and publish potential implications of their developments for the public when preparing environmental assessment reports. The public is then given the opportunity to respond. If the developer fails to fulfil this requirement, the government will order the them to give the public a chance to have their say.

Rules like these are crucial to ensuring public participation in environmental decision-making. The Report paints a picture of a world in which environmental decision-making is open, inclusive, and accessible, urging countries to foster a culture of civic engagement in which the public engage thoughtfully and meaningfully with the regulation of the environment.

The ‘Rights’ chapter contains perhaps the most provocative discussions in the report. The authors are unwavering in their assertion that human rights and environmental rights are one and the same. It shows the usefulness of a “rights-based approach” to environmental law. When gaps in legislation present themselves, rights are an ever-present safety net allowing people to assert a broad range of environmental claims.

The report also discusses the intersections of environmental protection and rights for Indigenous peoples. It particularly emphasises the rights of Indigenous peoples to give their free, prior, and informed consent (“FPIC”) concerning proposed developments on Indigenous lands. FPIC is at the heart of the UN Declaration on the Rights of Indigenous Peoples, as this report explores.

Finally, as citizens gain a greater understanding of their rights in an environmental context there will be an increase in individuals and groups seeking reparation for environmental wrongs that have impacted them. The report discusses this phenomenon in its chapter on ‘Justice.’

Here, the emphasis is on access to justice and fair adjudication processes for environmental disputes. This means there needs to be fair and equal access to courts that are equipped to hear environmental disputes.

The development of specialized environmental courts and tribunals is identified as a key opportunity for improved environmental adjudication. The report notes that over 40 countries have already established specialized procedures, courts or tribunals for hearing environmental disputes.

One such court highlighted in the report is the New South Wales (NSW) Land and Environment Court in Australia, known for its innovative and influential approach to environmental adjudication. Recently in this Court, Chief Justice Preston dismissed an appeal for the construction of a coal mine north of Sydney, citing the mine’s anticipated contribution to climate change as one of the reasons for rejecting the project. The specialist expertise of judges of the NSW Land and Environment Court, and other such specialist courts, enable them to make decisions on complex environmental disputes, understanding the nuanced risks and potential environmental consequences of different developments.

As environmental deterioration continues, the volume of environmental disputes will almost certainly increase in courts around the world, and decision-makers need to be prepared and equipped to form reasoned and transparent opinions on environmental issues. Fairness and justice in adjudication go hand-in-hand with compliance: as the report states, “when citizens perceive officials to be acting fairly, the public is more likely to cooperate and comply with the legal system”.

How does Canada fare?

Across the various indicators for assessing the effective implementation of the environmental rule of law, Canada is on average, well, average. Wherever the report categorizes countries, Canada fits quite snugly in the middle of the pack. For a more detailed look at Canada’s performance on specific elements of the environmental rule of law, check out this table we’ve put together based on the report’s assessment.

One element of the environmental rule of law that is of particular interest for Canadians is restrictions on foreign funding for civil society groups in Canada. As we noted in a previous post, Canada is one of the countries that has adopted legal restrictions on funding streams for environmental groups, which channel the concerns of thousands of citizens to speak up about environmental injustices. These types of laws, which are contrary to the environmental rule of law, make it easier for powerful interests, such as those of the fossil fuel extraction industry, to dominate public discourse.

In terms of Canada’s position on other aspects of the environmental rule of law, the outlook is mixed. It is positive when it comes to having environmental laws in place. However, Canada fares poorly on several aspects – including inclusivity and transparency in decision-making, and ensuring people have constitutional rights to access information, participate in public discussions, and live in a healthy environment.

What does the future hold for environmental rule of law?             

When it comes to addressing environmental concerns, countries have traditionally focused their efforts on figuring out what the law should say. Now, the focus needs to shift from law-making, to also address whether environmental laws are consistently applied and fairly enforced.

The report offers several suggestions about the way forward for the environmental rule of law. One essential task will be gathering empirical data against a set of indicators to assess the progress of environmental rule of law around the world. This assessment will be critical to helping countries understand how they fare compared to other parts of the world, and to encourage shared ideas and innovations about how best to strengthen environmental rule of law in society.

The UNEP report also highlights the role that diverse actors will play in bringing about the environmental rule of law in the future – this includes everyone, from citizens, to governments, to environmental NGOs.

The report particularly highlights the importance of those organizations that approach environmental issues with an intersectional perspective. Weak environmental rule of law has implications across many other issues, including peace and security, displacement and gender. Strengthening the environmental rule of law will necessarily require strengthening intersectional responses to environmental problems. Environmental NGOs can play a leading role in ensuring our responses to environmental issues protect vulnerable groups and champion the voices and perspectives of marginalized people.

Canadian decision-makers have the greatest role to play in translating the broader principles of the environmental rule of law into systems that are fair and encourage meaningful public inclusion. That means providing the education, resources, and forums for the public to understand and contribute to law- and policy-making discussions. In that sense, the environmental rule of law equally means the public understanding the decision-making context and the decision-makers understanding the public context.   

At a critical time for many of the world’s ecosystems, it is essential that the global community work together to abide by the environmental rule of law, engaging institutions and citizens in enforcing the law in fair, just and accessible ways.

 

Top photo: UN Office in Geneva, Switzerland. (Photo by Martin V. Morris via Flickr Creative Commons)

Author: 
Ally Neale, Law Student
Benjy Katzeff, Law Student