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Key Issues in Environmental Law and Policy – 19 May 2008. Brad Jessup. Environmental lawyer. Masters in Environment, Society and Development. Dissertation on value conflicts in wind energy ANU since November 2007. PhD on justice in Australian environmental law.

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Key Issues in Environmental Law and Policy – 19 May 2008

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Key issues in environmental law and policy 19 may 2008

Key Issues in Environmental Law and Policy – 19 May 2008


Brad jessup

Brad Jessup

  • Environmental lawyer.

  • Masters in Environment, Society and Development.

  • Dissertation on value conflicts in wind energy

  • ANU since November 2007.

  • PhD on justice in Australian environmental law.

  • Conference on Environmental Assessment - Friday 23 May from 1.50pm.

  • JessupB@law.anu.edu.auRoom 259, Law (Building 6), 02 6125 3624


Environmental law and policy

Environmental law and policy

  • Law as policy.

  • Law as a barrier to policy.

  • Law as an influence on policy.

  • Law as a response to policy.

  • Law as an institution that implements policy.


Law as policy

Law as policy

  • International environmental law, most commonly ‘soft law’, policy driven, objectives focused, ambiguous, drafted to reach consensus.

  • Stockholm Declaration on Human Environment.

  • United Nations Framework Convention on Climate Change.

  • Stockholm Convention on Persistent Organic Pollutants: best available techniques.

  • International law guides domestic law-making.


Law as a barrier to policy

Law as a barrier to policy

  • Property interests, particularly private land and long held water rights.

  • Permits and licences. Incentives and priorities (especially electricity generation and mining).

  • Legitimate expectations of renewal.

  • Parliamentary law-making process.

  • Cattle grazing in Alpine National Park required legislative change.

  • Reticence of judges to explore new concepts, including precaution, ESD, environmental justice.


Law as an influence on policy

Law as an influence on policy

  • Human rights and the environment.

  • ACT Human Rights Act, Victorian Charter of Human Rights and Responsibilities Act.

  • European and American Conventions on Human Rights.

  • Rights to privacy, property, access to information, fair hearing.

  • Constitutional right to a healthy environment?

  • Environmental justice, ecological justice?


Law as a response to policy

Law as a response to policy

  • Current issues: Climate change, water, biodiversity.

  • Creates rights (water licences, carbon trading, taking rights).

  • Imposes obligations (clean-up and offsetting) and creates offences (EPBC Act significant impact offences).

  • Restricts activities (land clearing, emission limits).

  • Rarely option of first resort.


Law as an institution

Law as an institution

  • ESD, polluter pays, precaution, participation.

  • Planning law and environmental assessment.

  • Process established under law to assess merits of proposal against policy (in theory!).

  • Nowingi waste disposal site versus Desalination plant in Wonthaggi.

  • Law is malleable, subject to discretion, and whim.

  • Power to intervene by Ministers, lobbying and deals (Brian Burke, Wollongong Council).


Key issues

Key issues

  • Weakness of international environmental law.

  • Problem of existing rights and interests.

  • Push for new rights - human rights and environmental rights - a justice based approach.

  • Reluctance of law reform and laws to achieve environmental policy in the first instance.

  • Opportunities - climate change, water, biodiversity.

  • Key laws highly political and discretionary.


Law and the environment

Law and the Environment

  • LAWS3103 Law and the Environment

  • http://lawandenvironment.wordpress.com

  • May be counted towards a major in Environmental Policy, Environmental Studies, and Human Sciences.


Law and the environment1

Law and the Environment

  • Critical approach to environmental law, rather than studying the law.

  • Assessment: research project and take-home exam.

  • Policy-maker’s or scientist’s view in exam rather than a lawyer’s view.

  • Proposed teaching in 3 hour block.

  • Online tools and forums.


Questions

Questions?

  • Environmental law and policy.

  • Course content, approach, objectives?

  • JessupB@law.anu.edu.auRoom 259, Law Building (Building 6)02 6125 3624


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