What Are the Principles Underlying Environmental Legislation?

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Sustainable development is the fundamental theme under environmental legislation, which means that the needs of present must be met without compromising the ability of the future generations to meet their own needs. The sustainability theme is supported by the Polluter Pays Principles, Precautionary Principle and Preventive Principle.

The Polluter Pays Principles means that the Polluter should bear the expenses of carrying out pollution prevention and control measures in order to ensure that the environment is in an acceptable state. In other words, the cost of these measures should be reflected in the cost of goods and services which cause pollution in production or consumption. This principle is based on the promise that those responsible for causing pollution or who benefit from it must bear the cost of its consequences.

It is, however, difficult to determine what constituents pollution and who the polluter is. For example, science can fail to provide certainty on the harmful impacts of certain activities. This is why the European Commission adopted the precautionary principle in 2000. It states that where there are threats of serious or irreversible damage, lack of full scientific certainty will not be used for postponing cost-effective measures to prevent environmental degradation.

Closely linked with the precautionary principle is Preventive Principle which aims at the prevention of environmental harm as an alternative to remedying harm already caused. The adoption of Best Available Techniques (BAT) under the Integrated Pollution Prevention regime is one example of the application of this principle. Other example includes the powers of enforcement agencies to serve works or enforcement notices for the prevention of pollution as a precaution.

The above principals have direct practical implications especially in disputed legal cases. For instance, in 1998 the European Commission banned the use of four antibiotics as additives in animal foodstuffs on the grounds that there was a risk of increasing resistance to the antibiotics in animals and such resistance could be transmitted to human animals through consumption. The sole manufacturer of one of the banned antibiotics, Pfizer, bought to challenge the ban primarily on the ground that there had been an unlawful application of the precautionary principle. Pfizer argued that a scientific assessment of risk was a condition precedent of the application of Precautionary Principle and that no proper assessment had been carried out. In the alternative, if a risk assessment had been taken out, Pfizer argued for a much higher standard of proof than had been accepted by the European Commission.

The Court of First Instance disagreed with Pfizer's interpretation of the precautionary principle, stating that the application of the principle could not be based on a hypothetical risk, but was acceptable in situations in which a risk even if the risk could not be fully demonstrated. Accordingly, the Court found that the Commission and other Community institutions had acted lawfully when they had relied upon the scientific advice given to them.

Likewise the English courts have strictly interpreted environmental laws in line with the above principles. In the R v. Dovermoss Ltd [1995] case slurry had been spread on farmland. Subsequently a stream had become blocked and changed its course so that it ran over the field, causing the slurry to contaminate spring water with levels of ammonia in excess of the levels prescribed under EC drinking water legislation. The Court of Appeal held that 'polluting' requires simply that a likelihood or capability of causing harm to animals, plants, or those who use the water could be demonstrated; actual harm is not necessary. Even mere discolouring may be sufficient, at least for the matter to be 'polluting'.

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Source by Adekunle Osibogun

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