WEEK 1 – KNOWLEDGE CLIPS: INTRODUCTION, SUSTAINABLE

DEVELOPMENT, AND DEVELOPMENT & CHALLENGES OF EU LAW

1. INTRODUCTION TO ENVIRONMENTAL LAW.
1.1. ENVIRONMENTAL LAW: DEFINITION.
In contrast to the beauty of nature, we have environmental problems, and that is what
Environmental Law focuses at: how to prevent environmental deterioration.
Definition: environmental law is the totality of the legal measures which try to protect and improve
the environment.
Human health is a concern as far as affected by pollution.
Because of this “totality” of the legal measures, environmental law is a multidisciplinary field of law.
Private law, administrative law, criminal law, and even tax law, all law disciplines can be part of
environmental law, if in such a discipline, measures are adopted, or tools are available, in order to try
to protect the environment.
It is a field that transcends the traditional disciplines of law, it is the totality of the legal measures
that have at its aim to protect the environment.

1.2. FOCUS ON ENVIRONMENTAL LAW.

Law is primarily seen, in environmental law, as an instrument for achieving environmental
protection, to be used by governments, victims and NGO’s. For example, governments can use their
competence to adopt environmental legislation; the victims can go to court to claim for
compensation, if they faced damage caused by pollution; and the NGO’s, particularly the
environmental ones, got increasingly stronger legal positions, in order to go to court and ask for
better environmental protection. So, it is a very instrumental field of law.
And, at the same time, a guarantee to be used by economic actors against unlawful governmental
and private actor (NGO) intervention. It provides guarantees. For example, the government can issue
permit requirements to an industry, but this industry can hold de position that those conditions are
too costly, too strict. In our law systems, the industries have the right to go to court and ask it to
assess whether the permit is lawful.
It is this balance between, on the one hand, an instrument, and on the other hand, a guarantee, that
makes environmental law a balanced field of law. The primary focus in the literature goes to how can
law serve as an instrument to act against pollution, but we should not forget, also in order to
understand how effective this field can be, that there are also legal rights for the industries.

1.3. CLIMATE CHANGE AS CORE FOCUS IN THIS COURSE.

 Paris Agreement from 12 December 2015  a global governmental approach to address
climate change. Aiming to keep global temperature rise well below 2 degrees Celsius, and
stipulating the strive to limit it at 1.5 degrees Celsius. The EU and its member states are
parties to the Paris Agreement (mixed agreement).

 The EU intends to be a world wide leader for combatting climate change, and has already
adopted an impressive package of laws to reduce greenhouse gas emissions which now
needs to be strengthened.

 This course will discuss main EU climate legislation, case law and literature.

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2. SUSTAINABLE DEVELOPMENT AND INTERNATIONAL PRINCIPLES.
2.1. LIVING IN THE “ANTHROPOCENE”.
According to geology, we live in the Holocene (which started after the last ice age 11,500 years ago).
However, quite some environmentalists use the term “Anthropocene” to indicate that in this era
(since the industrial revolution), mankind is changing the world by causing mass extinctions of plant
and animal species, polluting the oceans and altering the atmosphere, among other lasting impacts.
http://www.smithsonianmag.com/science-nature/what-is-the-anthropocene-and-are-we-in-it-
164801414/?no-ist.
Anthropocene has become an environmental buzzword ever since the atmospheric chemist and
Nobel laureate Paul Crutzen popularized it in 2000. Many stratigraphers (scientists who study rock
layers) criticize the idea, saying clear-cut evidence for a new epoch simply isn’t there. However, some
Anthropocene proponents, while conceding that difficulty, consider that it would be another strong
reminder to the general public that we are now having undeniable impacts on the environment at
the scale of the planet as a whole, so much so that a new geological epoch has begun.
At least, human influence on the environment is clear, and dramatic consequences are happening,
also in relation to human health. Environmental law addresses this immense societal challenge, and
hopefully we can work towards the “Sustainocene”, to express with that we will hopefully find the
way to live in a sustainable manner with the planet, which is also beneficial for human health.

2.2. GLOBAL ENVIRONMENTAL CONCERNS.

Ozone layer protection, climate change, marine protection, biodiversity, forests, waste transport,
plastic soup(s), chemicals, etc.

2.3. UN MEETINGS FOCUSING ON THE ENVIRONMENT.

Given the fact that international environmental problems emerged, the UN took responsibility and
organized several meetings focusing on the environment.
1. 1972: Stockholm Convention  Declaration of the United Nations Conference on the Human
Environment was adopted during this first meeting. First international Declaration that
adopted staring points, principles, in order to protect the environment. It is a soft law
document.

2. 1992: Rio Convention, thus far the most important meeting/convention from a legal
perspective, because of the adoption of environmental principles. The conventions from
2002 and 2012 produced less outcome 

o Rio Declaration on Environment and Development. It is the successor of the

Stockholm Declaration. It is very important because it truly lists a set of principles
related to the protection of the environment. Moreover, several treaties were
adopted in Rio 1992.

o United Nations Framework Convention on Climate Change (UNFCCC). It is the first

climate change treaty.

o Convention on Biodiversity. Also very important worldwide treaty aiming to preserve

biodiversity.
3. 2002: Johannesburg Convention  Johannesburg Declaration on Sustainable Development.

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 4. 2012: Rio Convention  The future we want (policy document).

5. 2022?  30 years after the Rio Declaration – a Global Pact for the Environment?
https://globalpactenvironment.org/en. The idea is to adopt this Global Pact, which would be
a new international document, and it is still to be seen what legal status it would adopt.

It is an International Treaty the UN is talking about. A legal text that proposes a set of
mandatory rights and duties for all to protect the environment. Some States oppose its
adoption, but the people’s movement can push them to adopt it.

2.3.a) Importance of the 1992 Rio Declaration.

For two reasons, it is still very relevant.
 The idea of “sustainable development” was recognized. This is a famous term.

 The Declaration contains a set of principles, which are (only) soft law principles, but they are
very influential regarding the worldwide discussion on the codification and application of
environmental principles. It has not hard law status, but it is an inspirational document for
courts, such as the ECtHR, to recognize certain principles, as this Court did with the
precautionary principle. Example that a document has a soft law status, but is very influential
and can gradually move to a hard law status.

2.3.b) Sustainable development: The Rio declaration confirms the importance of this
concept.
In order to prepare the Rio Declaration and Convention, a committee was established, under the
leadership of Brundtland, the former Prime Minister of Norway. This committee produced a famous
report on 1987, “Our common future” (UN Commission), in which sustainable development is
defined: “Sustainable development is development that meets the needs of the present without
compromising the ability of future generations to meet their own needs”. With this definition, the
concept of intergenerational equity was introduced, there should be a fair approach to how to use
the sources of the planet. The current generation should not use up the capacity of the planet, but
should enable the future generations to meet their own needs. The definition also entails, besides
the protection of the global environment, that the eradication of poverty has to be pursued. The
definition does not specifically refer to economic development, but it is more growth that the
developing countries wished for. There needs to be development in order to eradicate poverty, but
that economic development should not use up the possibilities of the earth system in a way that the
future generations cannot live well.
Therefore, it is a development that meets the needs of the present, and that hence entails also
economic growth, without compromising the ability of future generations to meet their own needs,
and that implies being respectful to the environment.
There is a lot of discussion about what this concept more precisely entails. There is a common
understanding that it is the need to integrate or to balance different needs. It would be the attempt
to balance:
1. Environmental concerns or considerations (needs of the environment),
2. Economic concerns (all economic production activities), the need for economic activities in
order to produce welfare and eradicate poverty,

3. Social needs (it has to do with the relationship between people and the needs of people). For
example, rights of indigenous people. It is also about social values.

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The weighing or balancing between different interests and needs is key. They are commonly known
as the key pillars of SD.
Even with this consensus, there are different views on the relationship and importance of the three
dimensions, and how to balance and integrate (discussed by “sustainability science”). This science
discusses how to understand sustainability and, more important, how to realize it.

Pillars, overlapping circles, three circles with the environment being the most important.

2.4. SUSTAINABLE DEVELOPMENT & LAW.

 SD is not (yet) recognized by the ICJ as a principle of law (however, a firm dissenting opinion
arguing for this in the Gabcíkovo Nagymaros case, arguing that sustainable development is a
long time principle of law).

 Nonetheless SD is codified in some treaties, but even if it has that status, its meaning is
inherently vague, and the legal consequences are hard to predict or to identify. Sometimes,
we see specific cases where decisions have to be made, and the balancing becomes better
clear.

 The EU serves as a learning field for understanding the role of SD in law (given the
codification of sustainable development in EU treaties and in secondary legislation, and it has
now also appeared on some case law). The Acheloos river case (Greece) serves as an example
of how the EU legislator, governments and courts deal with the concept.

2.5. TOWARDS A (STRONG) GLOBAL PACT?

Quotes from:
https://globalpactenvironment.org/en/the-pact/the-pact-in-3-minutes/
After the fundamental step of the 2015 Paris Climate Agreement, there needs to be a boost in
international action and support in the adoption of the Global Pact for the Environment. Beyond the
symbolism, the Pact will allow the emergence of a global legal framework that better protects our
planet, all while filling the gaps in international environmental law. The Pact will unify international
law that is currently fragmented between technical and sectorial treaties (climate, biodiversity,
pollution…), which are essential texts but hardly accessible to citizens. Since everything is
interconnected within ecosystems, the Pact globally envisions the question of protecting the planet.
Unlike the existing agreements that only focus on limiting subjects, the Pact aims to be the first
international treaty to address the matter of environment as a whole.

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  Aim: The Global Pact affirms the rights and duties of citizens and governments towards the
planet. Founded both on the right to live in a healthy environment and on the duty to take
care of the environment, the Global Pact will give citizens the legal tools to become actors in
the protection of the planet. It will recognize the fundamental principles of prevention and
remediation of environmental damage and will establish the tools to implement them (right
to information and to public participation, right to access to environmental justice). The Pact
will favor the harmonization and clarification of the standards for companies, in order to
avoid environmental dumping which is just as dangerous for jobs as for the planet. It will
drive legislators in each State to enact new protective environmental laws. It will inspire
judges to adopt more ambitious legal solutions.

 Procedure: derived from an initiative from civil society, the Global Pact is currently being
negotiated amongst States. For over 30 years, many jurists have recommended the adoption
of such a fundamental text. In June 2017, the project of the Global Pact was drafted and
presented to States by an international network of a hundred experts from all over the
world. May 10, 2018, a General Assembly vote at the UN launched negotiations amongst
states. In December 2018, the UN Secretary General published a report recommending
States to adopt such an international instrument. The negotiations between the States are
currently on going, with a view on getting the pact adopted in 2022.
Whether it will be adopted is hard to predict, but luckily enough, we have already made progress at
the international level. The concept of SD is widely recognized. In this scenario, a very important
Declaration was adopted, with a set of environmental principles. Even soft law approaches can exert
positive influence. Perhaps the Global Pact would strengthen this international approach.

3. DEVELOPMENT AND CHALLENGES OF EU ENVIRONMENTAL LAW.

Elisa Morguera chapter.

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As a result of these developments at EU environmental law, we can now fairly conclude that the EU
has established a vast package of environmental legislation. Approximately 70 to 80% of national
environmental law consists of EU environmental law.
Many, many rules exist, Directives and Regulations.
Example in the field of (only) climate change: report developed under the European Environmental
Agency  in 2019, EU Member States reported a total of 1925 expired, existing and planned policies
and measures, in order to implement EU climate law.

EU climate law was already an enormous package of laws when in 2019 8 new measures were
introduced in order to improve the approach for combating climate change. That is only about
legislative acts, but in order to understand how that plays out in practice, we need to study also
implementation in the MSs, and case law as well.

3.1. ENVIRONMENTAL ACTION PROGRAMMES.

While it is already a very positive outcome that we have this vast package of laws in order to address
environmental problems, policy making is still needed in order to discuss whether the current
environmental problems are properly addressed, how to strengthen the approach, and deal with
new environmental problems. The TFEU gives this basis, this provision, for environmental action
programmes.
Art. 192(3) TFEU: “General action programmes setting out priority objectives to be attained shall be
adopted by the European Parliament and the Council, acting in accordance with the ordinary
legislative procedure and after consulting the Economic and Social Committee and the Committee of
the Regions.”

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Since the Maastricht treaty, these action programmes are legally binding decisions, so they
constitute a source of law, and they may be a tool to interpret treaty articles and provisions of
secondary law. In the action programmes, we find the objectives that, in accordance with the
treaties, need to be attained.

3.1.a) Now: A European Green Deal Communication from the European Commission.
Important policy plans can also be proposed and discussed outside this mechanism of the
Environmental Action Programmes, and that is what the current European Commission has done, by
proposing, in December 2019, the European Green Deal (COM(2019)640)), an ambitious policy plan.
It is so ambitious that she calls it the green dream.
https://ec.europa.eu/info/strategy/priorities-2019-2024/european-green-deal_en
What is the legal status of the Green Deal? And what is its political relevance?
The Green Deal is a “Communication”, while the Environmental Action Plans have their foundation in
the Treaty, and are legal decisions, legally binding. While on the one hand the Treaty says that
Environmental Action Plans have to be adopted, the Commission goes on with a highly ambitious
communication. This is how practice often develops, we have something in the treaty, and also a
communication by the Commission.
Therefore, the Green Deal has no legal bindingness, but it is an important policy document, while

Two (consecutive) initiatives:

1. Green Deal: proposed on 11 December 2019.

2. Proposal for a new Environmental Action Plan, proposed almost a year later, on 14 October
2020. This codifies the policy intentions of the Green Deal. It has not yet been adopted, the
process is still ongoing, the intention is to adopt it in 2021.
Green Deal: Great Ideals.

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 1. To achieve climate neutrality by 2050 (and establishing a more stringent 2030 target 
realized in spring 2021 with the adopted EU Climate Law. It codifies climate neutrality and
establishes a more stringent 2030 target. Implementation will be key, but a major step has
been made.

2. All EU policies should contribute to preserving and restoring Europe’s natural capital: the
Commission calls upon the EU not to stay isolated, looking only at environmental policies and
laws, but all EU policies need to have this green focus.

3. Mainstreaming sustainability in all EU policies: it links to the second goal. In every discipline,
acknowledges should be done about the importance of the protection of the environment, in
a sustainable way (some balance between environmental, economic and social needs).

4. It puts forward a green oath: “do no harm”.

5. It also puts forward the policy objective: a zero-pollution ambition for a toxic-free
environment.
This is what we dream of, but until which point is that possible in reality? The policy put forward is
very ambitious.
Green Deal (p. 19)  To do no harm.

The Commission says, we have to study, with all legislative proposals and delegated acts, how that
initiative will uphold the green oath do no harm.

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Do no harm … What does it imply?
 This principle or “green oath” is not codified in EU law, it has not this legal status as being a
principle codified in the treaties.

 Meanwhile, EU law provides several environmental law principles  art 191(2) TFEU: “Union
policy on the environment shall aim at a high level of protection taking into account the
diversity of situations in the various regions of the Union. It shall be based on the
precautionary principle and on the principles that preventive action should be taken, that
environmental damage should as a priority be rectified at source and that the polluter should
pay.”

These principles are part of EU law, and the Commission adds to these principles a new
policy principle.
 Hence, the legal relevance of this (promising) new expression “to do no harm” is yet to be
explored.
We live in a time with very serious environmental problems, but at the same time, the European
Commission came forward with a very ambitious policy plan, this Green Deal. Law will be very
important to implement these high ambitious goals. Whether they will be reached, it remains to
be seen.