III UCL-KCL Postgraduate Environmental Law Symposium

3rd UCL / KCL
Postgraduate Environmental Law Symposium

Wednesday 18 February 2015
from 09:30 to 18:00

About the Symposium

The Symposium aims to provide environmental law and governance research students the opportunity to meet, present and discuss their work in a supportive environment. The sessions will be chaired by academics from UCL, KCL and beyond, all of whom are experts in the area. The Symposium is made possible by generous funding from the Dickson Poon School of Law, the UCL Faculty of Laws and the UCL Centre for Law and the Environment.

Research Community

The aim of the Symposium is not only to provide research students with a supportive, environmental law-specific presentation forum but also to provide an opportunity to discuss our work with each other. The symposium organisers are keen for the event to allow students to meet and network, while strengthening a postgraduate environmental law research community. We encourage attendance from research students at all stages of their postgraduate work. We also invite LLM students, academics and undergraduates interested in environmental law to come along. Lunch and refreshments will be provided during the day. A drinks reception, sponsored by the Dickson Poon School of Law, will follow in the evening.

There is a Facebook Group for Environmental Law Research Student Network:
https://www.facebook.com/groups/410859782288937/.

If you use Facebook, please feel free to add yourself to the group, invite others to join and to make whatever use of it you like. But Facebook can of course be non-inclusive, so we apologise for that in advance.

Full programme and abstracts are available below.

Contact the Symposium organisers:
Ioanna Hadjiyianni, PhD Candidate, KCL Dickson Poon School of law
(ioanna.hadjiyianni@kcl.ac.uk)

Olivia Hamlyn, PhD Candidate, UCL Faculty of Laws (olivia.hamlyn.09@ucl.ac.uk)

III UCL-KCL Postgraduate Environmental Law Symposium

Wednesday 18 February 2015

Symposium Programme (Abstracts follow below)

9:30

Coffee and Registration

10:00

Plenary Session 1: International Environmental Law

Chair: Professor David Caron, KCL

Justine Bendel, PhD researcher, University of Edinburgh

Pedithep Youyuenyong, PhD researcher, De Montfort University
Leicester

Beatriz de Sousa Fernandez, PhD researcher, University of Edinburgh

11:30

Coffee Break

12:00

Parallel Sessions 1

1A: International Law, Extraterritoriality and Trade

1B: EU Environmental Law

Chair: Dr Federico Ortino, KCL

Intu-On Garnjana-goonchorn, PhD researcher, University of Nottingham

Taotao Yue, PhD researcher, Maastricht University

Gaëtan Blaser, PhD researcher, University of Fribourg

Chair: Professor Jane Holder, UCL

Olivia Hamlyn, PhD researcher, University College London

Katrien Steenmans, PhD researcher, University of Surrey

Aurore Boyeldieu, Masters student, Université Paris 1 Panthéon-Sorbonne

13:30

Lunch

14:30

Parallel Sessions 2

2A: Alternative Approaches to Environmental Governance

2B: Rights and the Environment

Chair: Professor Malgosia Fitzmaurice, QMUL

Rónán Kennedy, PhD researcher, University College London

Diogo de Sousa e Alvim, PhD researcher, University of Edinburgh

Stephen Minas, PhD researcher, King’s College London

Chair: Emily Barritt, KCL

Yuchen Guo, PhD researcher, University of Hull

Angeliki Papantoniou, PhD researcher, Queen Mary University of London

Thomas West, PhD researcher, University of Nottingham

16:00

Coffee Break

16:30

Plenary Session 2: Regulation of Controversial Energy in the EU

Chair: Professor Joanne Scott, UCL

Ruven Fleming, PhD researcher, University of Aberdeen

Leonie Reins, PhD researcher, Katholieke Universiteit Leuven

Tobias Heldt, PhD researcher, Maastricht University

18:00

Concluding Remarks

Reception – drinks and canapés

Abstracts

International Environmental Law

Provisional measures as remedies for international courts and tribunals in environmental disputes.

Justine Bendel

One prominent characteristic of international environmental law is its preventive role and the emphasis on the use of precaution by States if their activities can have impacts outside their territory. The ICJ also underlined that “in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage”. By contrast, international courts and tribunals were not designed as a preventive mechanism at first, rather as a bilateral system of dispute resolution. Yet, this paper will demonstrate how provisional measures as a preventive judicial mechanism can adjust this assumption. It will focus on the major role that provisional measures can play in the application of international environmental law. By analysing the case law, this paper will show that provisional measures are a useful judicial tool to be used by States when environmental rules are violated.

Transboundary Light Pollution Law and Policy

Pedithep Youyuenyong

Light pollution has various significant adverse effects on the night environment. Emissions of non-environmentally friendly or inefficient outdoor lights are one of the major causes of environmental problem, and they generally come from main elements of light pollution, such as glare, sky glow and lighting intrusiveness. While international environmental law represents a number of regulatory requirements regarding monitoring of compliance and mechanisms for various forms of environmental pollution by the international environmental bodies in acknowledging the relevance of some scientific issues in international frameworks, a number of challenges for transboundary light pollution protection still exist, especially in countries where light pollution plays a highly adverse role in changing the night environment, an excess of which is harmful to ecological systems and interference with astronomical observations in transboundary borders and regions. For example, the orange smog from wide spread of urban upward lights that hangs over two countries' geographical borders at night where dark-sky landscapes and urban brightness areas are shared. This paper will discuss planned research that aims to explore new aspects of transboundary light pollution law. They need to provide appropriate legal mechanisms for the light pollution prevention and settlement of transboundary lighting disputes. It concludes that international or transnational bodies such as joint environmental commissions should help facilitate international cooperation, including the sharing of decision-making processes in the effective implementation of integrated light pollution control.

Beyond national obligation: the use of collaborative efforts for the conservation of the hidden treasures of the deep sea.

Beatriz de Sousa Fernandez

Traditionally, States have shown much more interest in exercising their high seas freedoms under law of the sea than the obligations to protect and conserve its marine biodiversity in areas beyond national jurisdiction. Yet deep oceans are home to the largest ecosystems of the planet, representing an incomparable reservoir of biodiversity, still to be fully discovered. Discussions initiated in November 2003, over a resolution of the UN General Assembly on Oceans and the Law of the Sea, invited states to apply a precautionary principle “beyond national jurisdictions” on behalf of the conservation of marine biodiversity. Since then regional and international initiatives have been set up making unprecedented use of conservation mechanisms on the high seas. Examples include the OSPAR Commission's ecologically coherent network in areas beyond national jurisdiction in the North-Atlantic Sea and, more recently, the designation of the Sargasso Sea, a huge area in the middle of North Atlantic Ocean. But in the absence of an international agreement regulating deep sea biodiversity, how far can international collaborations effectively fill in the gaps in the current fragmented management of the oceans?

International Law, Extraterritoriality and Trade

The different shades of green, the disguised and the WTO Agreement on Technical Barriers to Trade

Intu-on Garnjana-goonchorn

Not all environmental measures are “green”. Not all greens resonate with the concept of sustainable development. The true green is hard to identify and the vast array of existing environmental measures, if green at all, also vary in shade. However, in trade-environment discussions, they are categorically viewed under the same frame of reference. WTO disputes concerning specific environment-related measures are often taken as representation of the confrontation between the two regimes —viewed as scenes of ideological battles between capitalist development and environmental protection.

My research ultimately asks how the WTO could be supportive to environmental governance. The focus is on the Agreement on Technical Barriers to Trade (TBT Agreement) which covers the growing and increasingly significant body of product-related environmental measures, such as eco-labeling and life-cycle requirements. It first explores the fundamental questions of: what environmental governance is in this context, and, how the WTO may contribute to its development. Unfolding what may be disguised within the different “shades of green”, one of its main chapters seeks to end the superficial and misleading blame game and to pave the path for constructive discussions, to create the much needed coherence and integration of global governance in the pursuit of sustainable development.

Comprehensive Regulation on sustainability of biofuels: implications drawn from comparative study between the EU, China and international regulatory approaches

Taotao Yue

As biofuels are increasingly demanded, produced, and traded, sustainability of biofuels has become a critical issue, particularly regarding negative impacts on land use change emissions, food availability and prices, and biodiversity loss. Growing concerns over the negative impacts result in development of regulations that establish certain sustainability requirements for biofuels, such as the sustainability criteria in the EU and ‘no competition for food’ principle in China. However, these domestic measures may either fall short of or face legal barriers in addressing the sustainability concerns with global or extraterritorial features. At international level, harmonized regulatory framework on biofuel sustainability lacks, and the existing initiatives regarding biofuel sustainability are largely fragmented and ‘soft’. This paper makes conclusion for governance over biofuel sustainability drawing on comparative study between EU, China, and international regimes.

The Legality of EU’s Environmental Measures with Extraterritorial Impact

Gaëtan Blaser

In the past few years, the EU has been increasingly using its internal tools to develop legislation having an impact outside its borders. This is specially the case when the actions of third countries or of the international community are considered by the EU as being insufficient to tackle an internationally recognized problem, such as climate change for instance. In such circumstances, the EU tries to take advantage of its economic power to impose its views and to influence the evolution of multilateral rules.

From an international legal perspective, the unilateral development of measures affecting conduct abroad raises notably the question of its compatibility with the principles of international jurisdiction. This paper presents an analysis of the legality of the EU’s strategy through the examination of a specific type of European environmental measure with extraterritorial impact: the sustainability criteria for biofuels. It argues that the EU’s conduct must not only be considered consistent with its international obligations but that it can furthermore represent – under certain conditions – a reasonable and effective way to bypass political inaction at the multilateral level.

EU Environmental Law

Sustainability and European pesticides regulation

Olivia Hamlyn

This paper examines pesticide use in light of sustainability. In 2009, the EU introduced a new Directive designed to achieve the sustainable use of pesticides. Pesticide use is complex, encompassing a diverse range of social, ethical, economic, environmental and scientific questions and impacts. Sustainability is a concept of equal complexity, demanding the consideration of i.a. the social, economic and environmental and emphasising public participation. Legislation built on the principles of sustainability could provide a powerful and sophisticated framework through which to consider, and respond to, the multiplicity of concerns pesticide use raises.

This paper will briefly discuss the question of pesticides. It will then examine sustainability in terms of its potential to regulate pesticide use. It will attempt to articulate various ideal qualities which one might expect to find in legislation regulating pesticides so as to achieve sustainable pesticide use. Finally, it will assess the Sustainable Use Directive against the qualities identified. It will conclude that the interpretation of sustainability found in the SUD is closer to a narrower agenda of risk management, far from a genuine and ambitious adoption of the true principles of sustainability.

A Common-Pool Resource System for Industrial Symbiosis

Katrien Steenmans

Industrial symbiosis engages traditionally separate industries and other organisations in a collective approach involving physical exchange of waste and by- products resulting in economic, environmental and social benefits. Industrial symbiosis has been recognised at European Union level as a strategy manifesting the circular economy, sustainable development and resource efficiency. My research explores how regulation and policy can enable industrial symbiosis initiation and sustainment, as it is not yet widely implemented. This paper focuses on the particular contributions of applying a common-pool resources (CPR) governance regime to industrial symbiosis. The sub-questions are: (1) What are CPRs? (2) Why is a CPR governance regime beneficial to industrial symbiosis? (3) How can such a system be applied to industrial symbiosis? Property rights of waste and by-products are a key focus of discussing why and how, as property rights are central to CPRs. This research therefore includes an assessment of how property rights affect, and are affected, in industrial symbiosis in the current regulatory and policy context. Property rights are also used in recommending how a CPR governance regime could be applied to industrial symbiosis, the third sub-question, in order to incentivise industrial symbiosis initiation and sustainment. This research is explored using the doctrinal method.

The Quagmire, that is EU Waste Law: The Systematic Application of the Concept of Waste Preventing the Use of Manure as a Source of Energy

Aurore Boyeldieu

According to the European Commission, there are 1.4 billion tons of manure produced in the EU every year. This leftover material could be used as a source of energy if treated like coal and incinerated.

So why is such a simple solution not currently in practice? The reason is cost; the opportunity for a farmer to purchase an incinerator is impeded by their high prices. Following the semantic confusion between the terms ‘waste’ and ‘animal by-product’, manure is classified as waste. Its recovery must respect the provisions of the Waste Incineration Directive (2000/76/EC), which requirements make the treatment of manure more costly. During the last three decades, the European Court of Justice attempted to set down criteria in order to delineate the notion of waste. However, concerned by the potential environmental impact of the treatment of waste, it still gave it a very broad interpretation incorporating manure in most cases. Confronted by the uncertainty of the legislation and of the test created by the Court, national authorities classify manure as waste.

Last June, an amendment to Regulation 142/2011/EC as regards the use of animal by-products allowing for a more practical incineration of poultry litter was adopted. Although they are more stringent that the ones contained in the Animal By-Product directive (142/2011/EC) and they only concern chicken manure, the rules set down in this text constitute a first step towards the potential use of manure as a source of energy. There is still a long way to go before manure’s incineration can be considered a new source of energy. In conclusion, only clearer legislation issued by the European Commission could solve the resulting quagmire.

Alternative Approaches to Environmental Governance

Environmental Protection through E-Regulation: Critical and Empirical Perspectives Using a Rule of Law Analysis

Rónán Kennedy

Sometimes the most commonplace and uninteresting tools demand close attention because their mundane nature means that their role is misunderstood. The use of computer technology by environmental regulators is one such instance. Software and databases are becoming the invisible ‘glue’ that interconnects the various actors in the regulatory system and weaves an invisible web of control between decision-makers, regulated entities and ordinary citizens.

Nonetheless, there are few theoretical or practical perspectives on the role of ICT in environmental regulation. This paper applies both in combination, developing a values-based, analytical and empirically grounded framework in order to contextualise the use of ICT as a regulatory tool. The paper critically reviews the operation of the rule of law in digitised government. It combines theoretical perspectives from sociology, chiefly actor-network theory, with insights from semi-structured interviews with staff in regulatory agencies, non-governmental agencies and regulated entities, to build a thematic network model of how the use of ICT for information-gathering, as a means of control and as a conduit for communications is perceived by practitioners of environmental regulation. It uses this to sketch the contours of a new field of study, ‘e-regulation’, centred around the core values of the rule of law.

OECD’s Soft-law on Transboundary Environmental Harm: a Follow-up

Diogo de Sousa e Alvim

The OECD had in the 1970s a pivotal role in international environmental law making, namely in the area of transboundary environmental harm. It did so especially through soft law contained in non-legally binding instruments. These instruments established transboundary duties of information, consultation and scientific cooperation as well as procedural mechanisms of environmental impact assessment and response to the threat or in case of industrial accidents. Forty years later this article follows up on this soft law. I will start by looking at how the principles expressed in these non-legally binding documents were later cross referenced and formulated in instruments of other organizations. I will then look at how the OECD instruments served as precursors of legally binding instruments such as the UNECE conventions and EU secondary law. At last, I will look at norms contained in those instruments that inaugurated now well established practice of states. In these cases OECD soft law promoted the practice and served as proof of opinio iuris, contributing to the formation of customary law. This article shows a concrete example of the functioning of soft law in international environmental law, that of the law on transboundary environmental harm. It serves to show how non-legally binding mechanisms work and when they can be most useful.

Green bonds, green institutes, green standards: Transnational environmental law with and without the state.

Stephen Minas

Parallel to the currently insufficient public international law framework on climate change mitigation and adaptation, private and hybrid forms of regulation applying to cross-border climate finance and projects have proliferated, contributing to diffusion of norms and practices. Examples include: the publication of the Green Bond Principles by a group of multinational financial institutions to guide issuers and define this quickly expanding market; the establishment of the Global Green Growth Institute to work with developing countries on sustainable development regulations; and the creation of ISO standards on energy efficiency and greenhouse gas emissions. These and other recent developments are changing both the ‘hard’ and ‘soft’ law of climate mitigation and adaptation and are increasingly consuming the time of lawyers working in this growing practice area. This paper will investigate the significance of private and hybrid forms of climate regulation, with a particular focus on the heterarchical formations of actors and the interests driving these processes and corresponding questions of legitimacy and effectiveness. The paper will also propose implications for the development and theorising of transnational environment law as a field of study, including with respect to methodology.

Rights and the Environment

Public Participation in EIA Regulations and Practice: Proposed Changes

Yuchen Gao

Individual rights to participate in environmental decision-making procedures are now embedded in the international legal system. Public participation in Environmental Impact Assessment (EIA) is designed to facilitate a democratic decision-making process and to improve the quality of decision-making. However, a review of the literature reveals that effective participation is still hard to achieve under the present circumstances. This is due to a number of reasons, such as, the use of vague regulations and guidelines with regard to public participation; wrong motivations of involving the public in EIA process; and the lack of participatory capacity and support among the public.

The aim of this paper is to explore these issues with special emphasis on the current state of relevant legal regulations. The paper will conclude that in order to improve the quality of public participation in EIA, more precise legal requirements and capacity building mechanisms for the public should be developed within international agreements. In addition, having a clear awareness and understanding of the purpose of participation in EIA among participants should not be neglected in practice.

The need for a specific reference to Children in the EU Environmental Impact Assessment Directive to Protect Children’s Health from the Negative Effects of the Physical Environment

Angleliki Papantoniou

The aim of this presentation/paper is to investigate to what extent the provisions of the EU Environmental Impact Assessment (EIA) directive can protect children’s health from the negative effects of the physical environment. I will argue that a specific reference to the health of children should be included in the EIA process because children’s health is more vulnerable to the negative effects of the physical environment and that the EIA directive can function as a tool for protecting their health. This is because, being an obligation under international and EU law, the EIA offers a process which enables decision makers to take into consideration political, scientific and normative factors when evaluating the impacts of projects on the environment and human health. More specifically for the E.U, the EIA directive aims at simplifying the rules for assessing the potential effects of projects on the environment, including human health and therefore by extension children’s health.

I will use the United Nations Convention on the Rights of the Child as the primary reference for the minimum standards on the protection of children’s health, since it lays down the basic considerations for the protection of children’s rights at the international level and all EU members are members to it. The EU’s recognition of the importance of children’s rights within its scope of activity and responsibility will reinforce this commitment.

Human rights and Nonhuman Rights: Dignity in Environmental Protection

Thomas West

Rights are powerful creatures. In this paper I will present a number of ways in which rights could be used in international environmental protection measures. An obvious starting point for this is within the realm of human rights via a human right to a healthy environment or the ‘greening’ of existing human rights. Although these approaches exist in a number of jurisdictions, they are not without theoretical and practical problems. Most of these (such as defining its scope or locating its actors) are surmountable, but it is its anthropocentrism which presents the most difficulty. Protection of the environment does contain non-anthropocentric justifications, and these cannot be contained within a human right.

Acknowledging the legal possibility and legitimacy of nonhuman rights, we wonder if these can be of the same genre as human rights. Human rights protect dignity: is dignity an exclusively human trait? What is it composed of? Where does it end? Using the interest theory of rights and a survey of extant human rights allows for some ground to be made in answering these questions. The paper ends by acknowledging that choosing which values to prioritise is a political choice, but that there is a solid philosophical argument which would justify creating nonhuman rights.

Regulation of Controversial Energy in the EU

The legal interplay of environmental protection with energy security – the case of shalegas extraction in Germany

Ruven Fleming

Shale gas extraction (commonly referred to as `fracking`) is a relatively young technology, recently arriving in Europe. Concerns about its potential to contaminate groundwater, pollute the air and poison the soil have been raised. Despite these issues, domestic shale gas extraction could play a vital role in diminishing the reliance of a country on gas imports and enhancing energy security. Thus, shale gas extraction gives rise to a potential conflict between the interests in environmental protection and energy security.

Many European countries responded to the discovery of shale gas reserves on their territory by imposing moratoria on extraction. Moratoria on shale gas extraction however conflict with the legal principles of proportionality and practical concordance because they unduly favour one interest, environmental protection, over the other, energy security. As opposed to current state practice, European and German constitutional law requires conciliation of both interests.

The phd-thesis will use shale gas extraction in Germany as a case study to establish a legally sound way for reconciling environmental protection with energy security interests. If interpreted correctly, the basic principles of European and German Environmental Law (precautionary principle, preventive principle, principle of rectification at source,polluter pays principle, principle of sustainable development and principal of public participation) provide apt guidance on what meaningful shale gas regulation could look like. The proposed resolution, a combination of smart use of existing laws and small law amendments, could enable efficient, safe and environmentally sound shale gas regulation, avoid the use of legally problematic moratoria and allow environmental protection and energy security interests to come into their own. The implications of the suggested resolution reach beyond shale gas and may benefit the legal handling of other new energy technologies, like CCS, oil sands or renewables.

Regulatory design in the European Union: is soft-law the new way to go?

Leonie Reins

Shale gas in the European Union is characterised by public opposition and environmental concerns on the one hand and economic development opportunities on the other. It has been subject to a controversial debate by the European institutions, the Member States, civil society and non-governmental environmental organisations for the last four years. After considerable back-and-forth in the institutions, a European-wide stakeholder consultation, moratoria and exploratory drillings in the Member States and several scientific studies, the Commission has finally adopted minimum principles for the exploration and production of hydrocarbons. With the Recommendation, the EU institutions, contrary to what has been asked for by many non-governmental organizations, politicians, legal experts and citizen initiatives, did not adopt a legally binding (proposal for a) Directive but decided to opt for minimum principles for shale gas activities in form of a non-binding recommendation. This presentation will assess this Recommendation which do not provide new munition for either, proponents or opponents of the activity. The presentation will focus on (a) the Union’s competence to act in this regard and the status of soft law within the Union and (b) the implications from a prevention/precaution perspective.

Public Participation and Multi-level Governance in the nuclear sector – burden or opportunity?

Tobias Heldt

Nuclear power generation within the European Union can be considered a prime example for transboundary externalities. This necessitates regulation that takes into account this transboundary nature and the different actors at stake. A major challenge in this regard is the question of how to bridge the gaps between the stakeholders involved in such a multi-level setting such as industry representatives, public authorities, NGOs and civil society at large. This is further being complicated by struggles of competences between national and regional levels on the one hand, but also between different national states. In times of globalization the old hierarchical perceptions are no longer workable. Static structures with national constitutions at the top have to be reconsidered, taking sufficient account of the influence of different actors and the question of finding the most appropriate level for intervention. This contribution will illustrate these problems by an analysis of the nuclear sector and its inclusiveness. Underlying question will be in how far existing tools such as for example the Environmental Impact Assessment are, or can be, used to increase transparency and public scrutiny of the nuclear sector to achieve a higher level of environmental protection and improve its governance as a whole.