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ENVIRONMENTAL LAW 1. To what extent have the principles of environmental law been incorporated in the Environmental Protection Act 2000 20TH MARCH, 2004. Introduction The environment is made up of the physical, biological and human elements. These three are different facets of one and the same environment. Not only in recent years, the human environment has begun to impinge and burden the physical and biological environment. It is only in recent years that the public has been made aware of the seriousness of the matter.
This awareness, has, not only led to changes in local legislation, but also to changes in the way the problem is approached. It is useless trying to solve environmental problems on a national basis as the environment is a global matter and should be dealt with internationally and therefore globally with all the countries aiming at one goal, a better environment for not only today’s generations but also for future generations. The worldwide trend nowadays is towards sustainable development. That is, using the environment for present needs without compromising the rights of future generations, to a clean environment.
This can only be done by insuring that future generations have the same access and availability to the environment as we do now. To ensure this access to the environment there must be some sort of planning. The sort of planning required is that to preserve the same quality and biodiversity we find today. The future generations have a right to the same diversity that we have at our disposal at present. The environment that they are born into must not be impoverished or tainted in any way. For environmental law to be possible and effective there must be an integrated approach.
There must be the integration of socio-economic policies and environmental policies. Only this sort of integrated policy will be a success in the environmental field. An integrated approach seems extremely simple on paper, however it has proved to be hard to implement in reality. Basic Principles Part I of the Environment Protection Act consists of the basic principles of environmental law which form the basis of the whole act. They are not enforceable in a court of law however they must be employed when interpreting any other provision in the Act or any other law relating to the protection of the environment.
This is stated in article 5. A lot of Non-governmental Organizations have viewed this provision with disappointment because the principles laid down in Articles 3 and 4 of the Act are of fundamental importance and should be translated into substantive laws. The principle of sustainability is introduced immediately in Article 3 which states that all persons have a duty to protect the environment. This provision of the law also includes a duty to assist in the taking of preventive and remedial measures.
The legislature realizes that with regards to the environment, it does not have, and never will have the competence to tackle the problem alone. The environment is delicate balance that needs to be maintained; therefore there is the need for remedial actions for existing problems. The preventive action is of utmost importance to keep the balance. Once the public is aware of the problems at the moment, each person must do there best to prevent further damage to the environment and further damage to unique ecosystems. It shall be the duty of everyone together with the government to protect the environment and to assist in the taking of preventive and remedial measures to protect the environment and manage natural resources in a sustainable manner. [1]” Therefore each one of us together with the government has a duty to use any resource in a way that will ensure that it is available in the same quality for future generations. We will now tackle the four principles which are: 1) Sovereignty over natural resources and the environment in general. ) The polluter-pays principle. 3) Preventive approach and the precautionary principle. 4) Access to information and justice in environmental matters. Sovereignty over natural resources and the environment in general In modern international law, permanent sovereignty over natural resources has come to entail duties as well as rights. There has been an evolution of permanent sovereignty from a political claim to a principle of international law. This principle led to debates on people’s rights, nationalization, and environmental conservation.
The right of peoples and nations to permanent sovereignty over their natural wealth and resources must be exercised in the interest of their national development and of the well-being of the people of the State concerned. The promotion of this principle was the natural manifestation of the ever-present fear of the developing countries, that the Western World would continue exploiting their natural resources without conceding them a just and equitable share. This principle[2] was implemented in our law and is found in both sections 3 and 4[3].
The principle states that the environment is a res communis and thus should be enjoyed by all. The government as the bonus pater familias is entrusted with the protection of this resource. Section 3 is the best example of this principle, stating: “It shall be the duty of everyone together with the government to protect the environment and to assist in the taking of preventive and remedial measures to protect the environment and manage natural resources in a sustainable manner[4]. ” The polluter-pays principle The polluter-pays principle is that which calls for monetary liability.
It implies that those who pollute the environment and destroy biodiversity should carry the costs of the negative effects of pollution and loss of biodiversity, created in society. The rationale behind PPP is that polluters, who usually do not suffer from their activities, will try to reduce their emissions if they have to pay for them. By making polluters pay, society also generates funds to compensate those that experience the negative effects of pollution. Polluter pays’ schemes can therefore lead to a cleaner environment, improved economic efficiency and higher social welfare.
Often local taxpayers have to pay the main cost of the clean-up from oil, chemical or mining accidents rather than those responsible and that is why the polluter-pays principle was accepted worldwide. “Authority may require the giving of financial guarantees or the provision of assurance to make good for any damage that may be caused to the environment by any activity which may require a license under this Act”. This is found in section 9(2) (b) of our code which although deals with the duties and powers of the Minister it also makes reference to the polluter pays principle as we have seen.
This principle was also incorporated in our law and may be found in section 4(b). The intention is always to remedy and set standards. A priori, a number of thresholds are laid down so if they are not complied by, the Polluter-Pays principle comes into action, this principle is practically self-explanatory. “to take such preventive and remedial measures as may be necessary to address and abate the problem of pollution and any other form of environmental degradation in Malta and beyond, in accordance with the polluter pays principle and the precautionary rinciple”[5] Also very important is Part X of the act which deals with enforcement and implements the polluter-pays principle. Section 24(1) states that: “Any person who causes damage to the environment, shall without prejudice to any other civil liability to make good any damages to any person or authority” The money for damages cause will go directly into the environment fund which isn’t subject to taxation and is there to provide for a better environment. Preventive approach and the precautionary principle
Although these two principles may sound alike, a distinction must be made. The difference between precautionary and preventive is very subtle. While preventive signifies not allowing something to occur such as in section 4(h), “To combat all forms of pollution”, precaution on the other hand is when one assumes something even in the absence of scientific evidence. The “precautionary principle” emerged as a justification for environmental regulation even where there was still scientific uncertainty about the precise causes of environmental damage.
Critics asserted that the principle’s definition and goals are vague, leaving its application dependent on the regulators in charge at the moment. All it does, they alleged, is stifle trade and limit innovation however it is still an accepted principle and evidence of this was its endorsement at the 1992 Earth Summit Conference. In our law this principle is found in section 4(b) where the law also refers to the polluter-pays principle. The preventive principle on the other hand as we have already outlined is somewhat different.
During the first few decades of environmental protection regulation, the focus was on containing or cleaning up pollution after it was generated. Countries and organizations then realized that regulations that focus on the end of the pipe or the top of the stack do little to prevent pollution or avert future impacts and they started shifting to a preventive, proactive approach. This approach wasn’t and isn’t an easy one as it involves identifying the root causes of waste and figuring out ways to minimize its creation, often by using energy and materials more efficiently.
Pollution can result from virtually all human activities. Therefore, pollution prevention represents a challenge that is open to all members of society, at all levels of activity and decision-making. The role of education is crucial: pollution prevention requires having the skills, creativity, and mindset to holistically identify options for improvement and innovation. This principle is found in section 4(h) “to combat all forms of pollution”. Access to information and justice in environmental matters This principle[6] is found in sections 4(c), 4(d), and 4(e).
Section 4(c) ties up with the idea that the environment has no boundaries. Section 4(d) regards the participation of the public in decisions that effect the environment, whilst section 4(d) refers to the application of scientific and technical knowledge and resources in determining matters that affect the environment. Also Part IX of the act deals with the right to information which is part and parcel of public participation and access to information. This principle[7] includes three basic rights: 1) Public participation 2) Access and exchange of information 3) Access to justice in environmental matters
Public participation may be both positive and negative at the same time. It is generally decided that if it is a major project then there will be public participation. This slows the process down a lot and despite the possibility of raising some valid points, there is the risk that the issue will never be resolved and that the media will take advantage of the situation and feed on it, not letting go of some issues and completely ignoring others. This will bring any sort of development to a halt. The right to access and exchange information gives the electorate a chance to demand information about the environment.
This puts the required pressure on the government to keep up to date and abreast with what the electorate feels with regards to the implementation of its various policies. This gives the electorate a right to comment about the government and interact with the government, always with the protection of the environment as the objective. The third right is not very developed. Basically, any form of conditions imposed on an individual can be contested. Conclusion As we have seen these principles form the basis of environmental law and have been recognized and applied worldwide. Our law[8] states that The provisions of articles 3 and 4 shall not be directly enforceable in any court, but the principles therein contained are this notwithstanding fundamental to the Government of the State and those principles shall be employed in the interpretation of the other provisions of this Act or of any other law relating to matters governed by this Act. ” In this section the legislature clearly states that although these provisions of articles 3 and 4 aren’t enforceable in a court of law, the principles carry a lot of weight and are considered to be fundamental to the Government of the State.
We may also conclude that our environment is fragile, in today’s world, it is more important then ever to preserve the natural beauty and resources of our planet. This awareness of the importance of looking after the environment is what led to the creation of the principles discussed. Environmental Protection seeks to safeguard the quality of air, water and land. This involves the enforcement of legislation and a range of supporting activities to monitor and report on discharges and emissions, to establish the impacts of pollution, to set standards, and issue consent licenses and authorizations.
Bibliography: ? Laws of Malta Chapter 435-Enviroment Protection Act ? Encarta Encyclopedia 2003 ? http://www. biotech-info. net/raffensperger/ ———————– [1] Section 3-Environment Protection Act [2] Sovereignty over Natural Resources principle. [3] Section 4(i) ??? To consider the environment as the common heritage and common concern of humankind. [4]Section 3-Environmental Protection Act [5] Section 4(b)-Environment Protection Act [6] Access to Information & Justice in Environmental Matters [7] Access to information and justice in environmental matters [8] Section 5-Environment Protection Act