law help protect the environment and what steps can citizens take to ensure that the law accomplishes this goal?
Protection of the environment is important for our health, but humans affect the system through various means such as through polluting water and atmosphere with toxic gasses, with oil, with car fuels, and with debris that is plunked into the waters as well as depleting the fisheries and filling the air with smog and the earth with pollution.
It is for this reason that legislation is put into effect to curb our destruction and to teach us how to look after the environment in better ways. The state employs its own regulations, but it needs a synthesis of both state, business and citizen involvement to safeguard the environment, and motivation from both business and citizen is not always forthcoming. The following essay discusses policies that have been implemented to help protect the environment and concludes by suggesting steps that citizens can take to ensure that the law accomplishes its goals.
History of environmental policies
The best way that we can see how the law protects the environment is by gaining a review of environmental policies.
Modern environmental law dates back to approximately 1970 when the first Earth Day was celebrated and the U.S. Environmental Protection Agency (EPA) was created. Australians crafted the "Victorian Environment Protection Act' whilst Canadians introduced their "Canadian Waters Pollution Prevention Act" and "Water Act" in that same year. Subsequently too, British policies on pollution came out full force that same year. All of these policies were characterized by a command-penalty approach to the effect that a certain environmental aspect was targeted; a law (or series of legislation) passed to protect it; violation of these legislations were penalized.
The policies passed in those fateful years were uniform in their approach in that they imposed categorical requirements (e.g. maximum emission concentrations) on broad schematic categories. Focus was placed on technology and standards rather than on actual performance and emphasis was placed on protection of air and water to the minimization of other elements. Permits and licenses remained a favored way of controlling and regulating point-source pollutants from macro and micro enterprises.
These 'command and control' regulations were criticized in the 1980s for being cumbersome and costly. Little effect too was seen in most areas (although these regulations did have effect in some such as reduction in pulp mill pollutions). Seeking to substitute more pleasing policies to these harsh and inflexible regulations, neo-liberal environmentalists rolled out a range of regulations during the 1980s and early-1990s.
Economic instruments were the first endeavor where fiscal variables such as taxes or charges, licenses and permits, or subsidies served as impetus for encouraging citizens to protect their environment. The Acid Rain Program and the Clean Air Act Amendments are two such popular policies. Economic instruments were, however, short-lived since most businesses preferred the certainty or regulation to the uncertainty of economic burden (Gunningham, 2009).
Voluntary initiatives were more popular and these included three kinds:
1. Unilateral commitments -- namely the industry's voluntary involvement in one or more areas of environmental protection (e.g. The chemical industry's Responsible Care program (1985).
2. 'Public voluntary programs - where the environmental agency devised certain commitments and firms were invited to participate (e.g. The EPA's 33/50 Program that invited firm to reduce 17 toxic chemical setting a 50% reduction as goal by 1995).
3. 'Negotiated agreements' -- where agreement is forged between an industry and the government for protection of a certain environmental target (e.g. The Federated Association of German Industry negotiated with the federal government to reduce its carbon dioxide emissions by 20% by 2005; the government agreeing in turn to exempt them from a possible energy tax.) Such negotiated agreements were particularly popular in the EU, which had more than 300 such agreements by the mid-1990s (Gunningham, 2009).
Optimism about the effect of these voluntary initiatives waned in the late-1990s when reviews concluded that these initiatives were either related to 'soft' issues and/or there were few benefits and results accruing form these initiatives. Successors to the Thatcher and Reagan administrations, subsequently, returned to regulation policies to achieve greater efficacy and results in targeting significant environmental issues. Nonetheless, even whilst regulation policies attempted to achieve their come-back, neo-Liberalism, as under Blair's British Labor Governments and Clinton's Democratic Administration still protested against 'command and control' regulation and against interfering with business competitiveness and independence.
The Clinton perspective and objective was to encourage cooperation and collaboration in addressing environmental concerns. As Clinton's State of the Union address in 1995 put it:
It is time to draw upon the lessons we have learned over the last 25 years to reinvent environmental protection for the 21st century. We have learned that the American people are deeply committed to a healthy environment for their children and communities… We have learned that better decisions result from a collaborative process with people working together, than from an adversarial one that pits them against each other. And we have learned that regulations that provide flexibility but require accountability can provide greater protection at a lower cost (Gunningham, 2009, p. 188)
The Clinton-Gore administration proceeded by nurturing co-operative relationships with businesses attempting to entice them with various rewards and economic goals whilst introducing polices, and focusing on performance as opposed to regulations. Performance, however, depends on motivation and very little business, or individuals for that matter, were sufficiently motivated to exceed the minimal requirements.
Management-based regulations accordingly came into effect where entireties were -- and are - required to achieve certain goals and outcomes at specific timelines and via particular responsibilities, practices, and procedures. Some of these objectives (such s the Risk Management Planning under the U.S. Clean Air Act) are mandatory, whilst others (such as the National Environmental Performance Track) are voluntary and incentives-based (Gunningham, 2009).
These management-based regulation programs (or 'meta-regulations') have a mixed review with motivation from performers again necessitating their compliance. On the whole, however, businesses have progressively realized the need for environmental concern and have upped their involvement in this area in many, although not all areas. Apparently, the easier, more economical and time-reductive it is for them to be involved, the more care they will take regarding certain environmental concerns. And public pressure always helps. Achieving a 'green market' has become a buzzword, but certain businesses are more compliant than others. Effort and cost are the bottom lines.
Environmental NGOs are also placing pressure on corporations and small businesses to comply with initiatives that demand regard for the environment, introducing a number of initiatives such as the Community Right to Know (CRTK) legislations which requires facilities to track and report emissions (Gunningham, 2009)
Environmental Protection Alternative Measures (EPAM), passed by Canada, is another tool that the government uses to enforce environmental laws. EPAM is a control -- negotiated agreement where an individual, convicted of environmental violation, substitutes for the court process by actively involving himself in environmental concerns and/or paying a fine to an environmental fund or other conditions. The EPAM system is advantageous in that it discourages environmental offenders from continuing to abuse the environment. However, it is one of these control regulations that worry neo-liberalists, and there are certain situations when it is not effective (Howie, 2007).
Another strategy expanded to civilians was pluralistic regulation where a combination of regulations and incentives sought to encourage all aspects of the community -- businesses, state, and civil society - to work together in protecting themselves by protecting the environment. A mixture of law and enticement underlie these efforts and programs that encouraged voluntarism but no clear answers have been achieved regarding the ultimate efficacy of any of these programs.
Sometimes, too, the law may get into difficulties as with the case (Supreme Court of Canada. 2006) over returning Indian property that had originally been taken under the Indian Act. The Canadian Parliament's desire, on the one hand, was to encourage Indian entrepreneurship and self-government thereby returning to them the land (originally taken under the Indian Act) was seen as one way of doing so. On the other hand, the troubling concern was exploitation of the land and the Indian Act had taken this land as treaty property, namely property that needed special protection. The Court concluded that Parliament had to distinguish between treaty and non-treaty property, and it, therefore, decided not to repeal the Indian Act and to continue to treat these lands with special protection under the jurisdiction of the Canadian government.
Decision over penalization and identity of guilty party, too, can become complex. In 1992, Canfor, a major licensee, was held largely responsible for a blaze that destroyed 1491 hectares of forest in British Columbia (British Columbia v. Canadian Forest Products Ltd., 2004 ). The Crown claimed damages against Canfor loss of trees set aside for environmental reasons. The trial judge dismissed the case on the basis that the Crown had failed to prove a compensable loss with respect to either harvestable of non-harvestable trees. The Court…