ENVIRONMENTAL LAW - PUBLICATIONS AND RESEARCH

Comparative Environmental Law

Books

Oxford Handbook of Comparative Environmental Law, E Lees and J E Viñuales (OUP, 2019)

This Handbook provides the first comprehensive account of comparative environmental law, along with a complete conceptual framework for the field. A variety of leading experts adopt different perspectives for the comparative analysis of the environmental law systems of 15 countries and the European Union. This wide-ranging volume includes chapters on major environmental problems (such as atmospheric pollution, nature conservation, and climate change policies) as well as examining the infrastructure of environmental law and policy instruments (including command and control regulation, market mechanisms, and informational techniques). Here we approach environmental law as a single overall system, giving readers an analytical focus which remains relevant regardless of changes in the law. We also provide an overall methodological frame to guide further research.

Environmental and Energy Law Vol I-III (Part of The International Library of Law and the Environment series), J E Viñuales and E Lees (Edward Elgar, 2017)

This three-volume research collection covers the main topics and dimensions of environmental and energy law in its contemporary expression. It provides foundational material for those interested in understanding the development of the field and conducting research on the myriad of questions raised by transitions to sustainability. Particular emphasis is placed on the systematisation of the material. Volume 1 focuses on international dimensions, covering principles, substantive areas of regulation and implementation techniques. Volume 2 covers the European dimensions broadly understood, including EU law and other regional approaches (the UNECE and the Council of Europe), and distinguishing sector-specific and transversal regulation. Volume 3 focuses on the domestic, comparative and transnational dimensions and major questions arising from selected jurisdictions.

Book Chapters

“Maturity in environmental law and legal integration” in Oxford Handbook of Comparative Environmental Law, E Lees and J E Viñuales (OUP, 2019)

In this chapter I examine the merits of comparative environmental law in the face of concerns about a lack of sensitivity to legal culture and context. I demonstrate the value in a cartographical approach (and the ensuing ‘zooming out’) in providing a clearer understanding of the operation of environmental law in different jurisdictions.

“Adjudication systems” in Oxford Handbook of Comparative Environmental Law, E Lees and J E Viñuales (OUP, 2019)

Here I look at the different parameters which determine the ‘shape’ of environmental adjudication in a variety of jurisdictions. In particular, I examine the power of a court, the nature and extent of any specialisation, and the place of the court within the legal system as a whole. I argue that focusing on specialism alone fails to provide a nuanced picture of the kinds of judicial systems which can give rise to satisfactory environmental decision-making.

 “Environmental law and criminal law” in Oxford Handbook of Comparative Environmental Law, E Lees and J E Viñuales (OUP, 2019)

This chapter explores the relationship between environmental and criminal law. I look at how the principles of these two areas of law can conflict, as well as how criminal law can be used to enhance environmental protection.

Conference Papers

“Adjudication systems” Oxford Handbook of Comparative Environmental Law Workshop, Cambridge, UK, January 2017

“Environmental law and criminal law” Oxford Handbook of Comparative Environmental Law Workshop, Cambridge, UK, January 2017

Environmental Law in the UK

Books

Environmental Law, with D McGillivray, S Bell, O W Pederson, and E Stokes (OUP, 2017)

This is a leading environmental law textbook, covering a wide range of UK environmental law topics.

Environmental Offences: Remedying Interpretive Uncertainty (Hart, 2015)

This book analyses the interpretation of environmental offences contained in the waste, contaminated land, and habitats’ protection regimes. It concludes that the current purposive approach to interpretation has produced an unacceptable degree of uncertainty. Such uncertainty threatens compliance with rule of law values, inhibits predictability, and therefore produces a scenario which is unacceptable to the wider legal and business community.

The author proposes that a primarily linguistic approach to interpretation of the relevant rules should be adopted. In so-doing, the book analyses the appropriate judicial role in an area of high levels of scientific and administrative complexity. The book provides a framework for interpretation of these offences. The key elements that ought to be included in this framework – the language of the provision, the harm tackled as drafted, regulatory context, explanatory notes and preamble, and finally, purpose in a broader sense - are considered in this book. Through this framework, a solution to the certainty problem is provided.

Articles and Notes

“Localism and Environmental Law: Uneasy Bedfellows?” [2014] Journal of Planning and Environmental Law 176

This article argues that the levels of scientific uncertainty and associated value judgments make it very difficult to draft regulation which effectively delegates environmental decision-making without undermining environmental protection. It shows that the two aims of the red tape challenge – to cut “bureaucratic barriers” preventing development and innovation by focusing on local needs, and to do so without changing the legal position, are therefore incompatible in the context of environmental regulation.

Conference Papers

“The Role of the Judiciary in Environmental Decision-Making” Cambridge Centre for Public Law, Cambridge, November 2014.

Contaminated Land

Book Chapters

“Polluted sites” in Oxford Handbook of Comparative Environmental Law, E Lees and J E Viñuales (OUP, 2019)

In this chapter, I compare a number of jurisdictions to establish the general frameworks which can be utilised to tackle the problem of historical contamination. I look at the definition of contamination, the standard of remediation to be met, and the allocation of liability under a variety of regimes.

“Contamination and the polluter pays principle” in Implementing Environmental Law, P Martin & K Kennedy (Edward Elgar, 2015)

The two contaminated land liability regimes in force in the UK embody the polluter pays principle in differing fashions. The Environmental Liability Directive sees the polluter pays principle as an exclusionary principle of liability: the polluter should pay, and no one else. The Environmental Protection Act 1990 interprets the polluter pays principle as just one of the possible justifications for liability to clean up land. This paper argues that the latter interpretation is to be preferred. Not only does this better embody the justice inherent in the polluter pays principle, but it also better recognises the distinct nature of principles in law. This paper uses these two regimes as a vehicle to explore the meaning of the polluter pays principle as a principle of liability.

Articles and Notes

 “Liability for Contaminated Land: Powys County Council v Price” (2018) 20 Environmental Law Review 39.

This note discusses the facts and reasoning in this case, before considering the questions raised by the decision: the issue of succession and the definition of polluter; the question of contingent liabilities; and the consequences of finding that the only “appropriate person’ is the owner or occupier of the contaminated land.

"The Polluter Pays Principle and the Remediation of Land" (2016) 8 International Journal of Law in the Built Environment 2

This paper makes a comparative study of European Union regimes concerning contaminated land. The paper examines that law which exists in Member States and operates in parallel with provisions designed to implement the Environmental Liability Directive. It argues that there are multiple interpretations of the polluter pays principle in operation across Europe and that this poses problems for harmonisation and for owners and occupiers of contaminated land.

“The Contaminated Land Regime- New Guidance, and a New Philosophy?” (2012) 14 Environmental Law Review 267

This article examines the new contaminated land guidance for England published in April 2012, and the underlying tensions apparent in the philosophy behind the changes made to the previous guidance contained in Defra Circular 01/2006. It looks, in particular, at the approach that the new document takes in relation to scientific uncertainty and risk management, as well as considering the ‘new’ presumption against a determination of contamination, the reliance on the precautionary principle, and the treatment of background contamination. It also examines the conflict apparent in the document between local decision-making and nationally mandated goals and processes. In attempting to ensure that regulatory intervention has a net benefit, the guidance both allows local flexibility and heavily prescribes that flexibility. The resulting document, it is suggested, is a compromise and one full of tensions.

“Interpreting the Contaminated Land Regime: Should the “Polluter” Pay?” (2012) 14 Environmental Law Review 98

This article argues that part of the reason for a lack of action under the Environmental Protection Act 1990 in relation to remediation of contaminated land is that enforcing authorities cannot afford to clean up land at a faster rate. Yet they are reluctant to recover their costs from Class B persons. There is evidence that local authorities believe that ‘innocent’ homeowners ought not to face the cost of remediation. This is, at least in part, because of a focus on the ‘polluter pays’ principle. There seems to be a belief that, as they are not polluters, homeowners should not have to pay. Unfortunately this conclusion does not follow, leading to a misinterpretation of the relevant statutory provisions.

“Causing Contamination: R (Crest Nicholson Residential Limited) v Secretary of State for the Environment” 140 Scottish Planning and Environmental Law Journal 98 (as Lochery)

This case note discusses the decision in Crest Nicholson. The case holds that allowing contaminants to wash further into the soil by leaving land uncovered constitutes “causing” for the purposes of the contaminated land provisions. The fine line between cause and permit is highlighted by this case. If indeed contamination can be caused by an omission, what room is there for knowingly permitting the contamination?

Conference Papers

“Remediation of Contaminated Land- the Polluter Pays Principle and Stewardship” 2013 IUCN Academy of Environmental Law Annual Colloquium- University of Waikato, Hamilton NZ,  June 2013. 

Waste

Articles and Notes

“End of Waste Status and the Re-establishment of the Definition of Waste Panel” (2018) 20 Environmental Law Review 233.

This note considers the decision in R (Protreat Ltd) v Environment Agency and the court’s consideration of the relationship between Agency guidance on end-of-waste status and individual decisions. It also looks more broadly at the fate of the Definition of Waste Panel.

“The Meaning of “Deposit”: Thames Water v Bromley Magistrates’ Court” (2014) 26 Journal of Environmental Law 1

This case note evaluates the Administrative Court judgment in R. (on the application of Thames Water Utilities Ltd) v Bromley Magistrates’ Court on whether the unintended escape of sewage constituted a “deposit” of controlled waste within the meaning of the Environmental Protection Act 1990 s.33(1)(a). It argues that the treatment of the definition of “deposit” as a question of fact not law, and the application of a purposive approach to the interpretation of the Act, give rise to significant levels of uncertainty.

Habitats Protection

Articles and Notes

“Concretising the precautionary principle in habitats protection—Grüne Lige Sachsen v Freistaat Sachsenand Orleans v Vlaams Gewest” (2017) 19 Environmental Law Review 126

This note considers two decisions of the CJEU (C-399/14 Grüne Lige Sachsen v Freistaat Sachsen 1 and C-387/15 and C-388/15 Orleans v Vlaams Gewest 2). Here, the Court considered the role which the precautionary principle plays in assessing proposed developments under the Habitats Directive. I argue that these cases can be considered as follow-up judgments to those in Briels and Sweetman, but are also significant in their own right: in their treatment of the precautionary principle and in fleshing out precisely what that means a decision maker needs to demonstrate they go beyond the current rules and provide a sense of certainty and clarity.

“Allocation of decision-making power under the Habitats Directive” Journal of Environmental Law (currently available through advance access)

This article argues that the provisions in the Habitats Directive relating to protection of sites establish a triumvirate of decision-makers: administrative authority, scientific advisor and judiciary. It examines the relationship between these decision-makers as developed in recent case law, both at a European Union (EU) and national level. It argues that reference to the goal of environmental protection obscures the allocation of power among these actors, and that to truly understand the resulting system, we must acknowledge the differing norms which motivate each of these actors. In particular, it argues that we must consider the judiciary as an actor within the decision-making process, and should examine the role of the principles of judicial review and EU law in shaping this. It highlights that there are currently conflicts within the process, and that the principles of judicial review cannot provide a successful mechanism to manage these conflicts without an explicit consideration of the values ‘hidden’ therein. This article was awarded the Richard Macrory Prize for the Best Paper in the Journal of Environmental Law 2016.

Conference Papers

“The precautionary principle in habitats protection: obscuring scientific conflict and the proper judicial role” European Environmental Law Forum, Copenhagen, Denmark, August/September 2017.

Climate Change and International Environmental Law

Articles

“Responsibility and liability for climate loss and damage after Paris” (2017) 17 Climate Policy 59

This article considers the specific approach of the Paris Agreement to loss and damage issues. It considers, briefly, the history of loss and damage provisions to provide some context to the Paris outcomes. It then assesses two aspects of the policy response required in the face of such unusual legal structures: firstly, it argues that there is a need to develop a response to the legal ambiguity, i.e. the relevance of the distinction between responsibility and liability, to which these provisions give rise. It argues that this response must be clear and workable such that the ambiguity does not represent an excuse for inaction. Secondly, it is argued that awareness of the challenges of assigning legal responsibility for loss and damage is critical to designing policy which is sensitive both to the outcomes of Paris, and to the difficulties in allocation of ‘differentiated responsibility’.

Conference Papers

“Legal responsibility for loss and damage” Climate Change and Energy After Paris, Cambridge, UK, January 2016.