Science topic

Environmental Law - Science topic

Explore the latest questions and answers in Environmental Law, and find Environmental Law experts.
Questions related to Environmental Law
  • asked a question related to Environmental Law
Question
4 answers
What legal changes will businesses in energy and utlities face in the future? What other changes will they face in the near and far future?
Relevant answer
Answer
Coincido que es un tema multifactorial pero le doy un peso fundamental a tener una voluntad política decidida a gestionar otras formas de uso de energía renovable y contribuir al cuidado del medio ambiente. Se necesita además del concierto de naciones porque hay países que necesitan de la cooperación internacional y la creación de capacidades.
  • asked a question related to Environmental Law
Question
48 answers
In your opinion, is the quality of environmental law directly related to the cultural and philosophical maturity of individual countries?
Relevant answer
Answer
Dear Ladislav Rozenský - this is a great question but a huge topic. I think Montserrat Gas-Aixendri was attempting to narrow the discussion because environmental law is such a broad and encompassing topic. Certainly, you would hope that mature countries would be leading the way in environmental laws and policies for the betterment of the world.
Very best wishes, James.
  • asked a question related to Environmental Law
Question
5 answers
Can you help me find legislation in any country in the world that regulates the permissible limit concentrations of PBDE congeners in soil. Thank you!
Relevant answer
Answer
Only Norway has the normative values used to identify contaminated sites for PBDEs. The values for soil are 0.08 mg/kg for pentaBDE (BDE‐99) and hexaBDE (BDE‐154), and 0.002 mg/kg for decaBDE (NGU, 2007; UNEP 2015). Environment Canada has Federal Environmental Quality Guidelines (FEQGs) for PBDEs for risk management practice that describes guidelines for water, sediment and biological tissue to protect aquatic life and mammalian and avian consumers of aquatic life from adverse effects of PBDEs present in some commercial products (Environment Canada, 2013; http://www.ec.gc.ca/ese-ees/default.asp?lang=En&n=05DF7A37-1).
NGU (Norges geologiske undersokelse). Forslag til tilstandklasser for jord. Trondheim, December 2007.
UNEP (2015) Revised draft guidance for the inventory of polybrominated diphenyl ethers under the Stockholm Convention. UNEP/POPS/COP.7/INF/27
  • asked a question related to Environmental Law
Question
6 answers
Experience shows that polluting companies faced with strong environmental regulations will, when the economics dictate, move their base of operations to another country with lower (thus cheaper) standards. Can we do anything to stop this?
Relevant answer
Answer
Dear Simon Sneddon social and environmental issues must be part of business operations and their interactions with their stakeholders on voluntary basis, not only fulfilling legal expectations, but also going beyond compliance, giving to markets the potential to deliver on the SDGs. Kind regards, Ernani
  • asked a question related to Environmental Law
Question
3 answers
There are reports and complain on the non implementation of rulings of the courts and other dispute settlement bodies which are in favor of the local communities affected by these environmental pollution in the Niger Delta Nigeria. Does any one has any information on the above assertion. Whether in the form of book or Article, journal or caselaws.
Relevant answer
Answer
@ Olalekan Adekola, please I need a copy of these article "Adekola, O., Whanda, S., & Ogwu, F. (2012). Assessment of policies and legislation that affect management of wetlands in Nigeria. Wetlands, 32(4), 665-677" It is not free online.
  • asked a question related to Environmental Law
Question
5 answers
I am working on my spring semester lesson plans for classes on Environmental Law and Policy.
I am looking for a good example of a concept that will be presented.
One of the objections that intelligent conservatives make to our current system of environmental laws (at least in the United States) is that it does not balance technical expertise and democratic accountability. They argue that only trained technocrats with specialized knowledge are qualified to write regulations but everyone in a democracy must have the right to participate in the process.
Of course when a new regulation is proposed, there is a comment period and the agency proposing the regulation makes every effort to engage stakeholders. The intelligent conservative often believes that these measures are not sufficient, hence the objections.
So, can anyone suggest a situation where technocratic expertise and democratic accountability have been in a legitimate conflict?
The conservatives will argue that there are plenty of examples of regulatory over reach.
Compact fluorescent light bulbs? They save 75% of the electricity used for lighting
Can't drive my car on the beach anymore? Nesting seabirds are an important part of the ecosystem
Can't build my new house within 300 feet of a creek? Ever hear of runoff pollution?
Every example I try to find for my lesson plans seems to suggest that There Is No Such Thing As Regulatory Over Reach.....or perhaps it would be politically neutral to say that the vast majority regulations are promulgated for very good reasons. And furthermore, the agency proposing the regulation has had its power conferred by the legislative branch.
There must be a good example where an environmental regulation has come into a legitimate conflict with the democratic process.
Full disclosure, I am of course a tree-hugging, Union Dues paying lifelong Democrat. (Maybe that is why I am struggling with this question)
Happy Thanksgiving to the members in the United States,
Thank you,
Kevin
Relevant answer
Answer
My opinion is you need to approach the reality from the Environmental Economics side. Special consider the Kozneth Curve and argue for or argue against to have your broader understanding of the world view on the environmental issues at all levels.
  • asked a question related to Environmental Law
Question
2 answers
Why are the results of SWOT analysis different from the same paragraphs?
Suppose the employment law is the same in all countries, and when analyzing SWOTs, we will inevitably find a difference in their weights. The reason is not the average opinion of the research sample alone. definitely.
Rather, I think the main reason lies in the context of the environment that the law contains.
Relevant answer
Answer
I do not fully understand what you are trying to measure here with SWOT analysis. I don't understand why you want to compare the case/event/fact by using SWOT analysis. I think there's a problem somewhere. Say what?
  • asked a question related to Environmental Law
Question
21 answers
Professor Stone in 1972 published an essay in 1972, which is "Should trees have rights" . And nowdays many countries have given rights to nature. Let' s only focus on trees.
Let' s only focus on trees. I am working for the same topic .Our objective is to seek for persuasive reasons to explain whether the law should give the trees rights and the most important is to convince the legislator.
If we give trees legal personality and rights, there still some questions that are confusing me.
1. How to determine the scope of granting legal person status to trees?
2. Treat them as a whole or individual legal subject?
3. How to define the rights and obligtions ?
4. How to determing the rights of economic timber and endangered trees and common trees near my house and Fairness?
5. The relationship between trees and their owners?
6. Inheritance system ?
7. Guardship? an agency or their owner?
Relevant answer
Answer
Neverthess....
The question of rights might be better tempered with a focus on individual responsibilities, and in this regard the Torah is a model of insightful guidance. For example, there is no right to own property per se (not strictly true as their are laws on inheritance) but there is a prohibition on stealing. The same is true of life. The Torah provides no "right to life" and no one against whom such a right could be asserted. It does, however, prohibit murder (whilst simultaneously permitting war and killing in self-defence and also providing remedies to accidental/negligent killings). The right to life is protected by the responsibility not to commit murder. The rights of trees and rivers such as they are can only be upheld by the self-moderating actions/inactions of others in line with their responsibilties - which, of course, can be legally enshrined and enforced.
  • asked a question related to Environmental Law
Question
5 answers
Does anyone know report or publication on marine spatial planning in North West Africa ?
marine environmental law. Does anyone know report or publication on marine spatial planning in North West Africa ?
thank you
Relevant answer
Answer
Thank you Yamandu H Marin , but I looking for the north of Africa. yes your proposition look very interesting.
  • asked a question related to Environmental Law
Question
9 answers
In the United States, along roadsides and on Federal lands since the coming of the European peoples with their European exotic seeds, those exotic and invasive seeds have been sown in America's wild lands and along the roadsides, causing permanent "Spatial Extinction" of the local native plant populations across hundreds of millions of hectares.
For example in the USA, our Bureau of Land Management has annually sown an average of one million pounds (about 1/2 million kilos) of exotic seeds onto Western wild lands between 2000-2015, without ever doing an environmental analysis under our environmental laws (NEPA), to consider the permanent environmental damages being done to the native plant ecosystems, when BLM already has the least environmentally damaging alternative available, of using local native seeds instead?
Our State highway departments sow so many exotics along roadsides, that my 1997 Megatransect across the West showed massive Spatial Extinction of the native ecosystems, and in many cases the intentionally-sown exotics covered 20-30X more area than the exotic weeds covered, at http://www.ecoseeds.com/megatransect.html as follows--State highways, percentage of roads with intentionally sown exotics--Colorado, Idaho and Nevada 10%, Idaho 21%, South Dakota 28%, and Wyoming 35%.
SO, THE QUESTION IS--Do the government agencies need to immediately stop the use of exotic seeds along roadsides and on wild lands, and that includes the use of "cultivars" of natives, when they are sown outside of their original ecotype zone areas?
Relevant answer
Answer
My Forest and many or all that I know about do not or would not intentionally justify using an invasive exotic plant any more. The change over started to occur about 2 decades ago. We even went so far to discuss and go against state BMPs when the published seed mix included grasses considered invasive like Bahia grass, Serecea lespedeza, tall fescue, etc. In our seed mixes, we have continued to allow for some desired non-native ANNUALs that typically last a year as quick cover, as some of our native grasses are slow to germinate. It’s very expensive to grow plugs and then transplant. Any new forest plans and most if not all written in last 10-20 years are going to prevent use of non-native invasives. Where loblolly pine trees were planted off-site decades ago, they have been or are still being removed to make way for native species. Our timber, road, fire control activities require equipment to be washed to avoid inadvertent spread of invasives. But as mentioned, some areas are very erosive, so rapid cover annuals in the mix like brown top millet are still used as well as weed free straw when needed. Many of the Native seeds established, even sparingly at first, respond well to prescribed fire, a management tool used with some frequency within extensive portions of the SC National Forests. Invasive plants are actively treated, but as suggested, the presence of undesired persistant or invasives such as Bahia grass, Serecea lespedeza, tall fescue and others along roads and old gully treatments and home sites within a mixed ownership landscape creates long term issue where continuing identification and treatments to invasives are expected. Unfortunately, not all agencies, activities, ownerships and nurseries are on the same page as USFS, but I expect and believe the educational emphasis and discussions of concern may have them headed in the right direction through time, but certainly not fast enough. As suggested, unless this issue were to be legislated, it Is voluntary to all but the most conservation oriented. My concern with the pure legislation route would be many of the native grasses that we were familiar with were slow to establish and grow. A few species did respond well such as switchgrass and partridge pea, but erosion control needs a reasonable amount of cover, and using too much seed of annuals or excessive mulch also is bad due to competition, etc.
  • asked a question related to Environmental Law
Question
2 answers
In 2016, Malta made a paradigm shift in its legislation by adopting the "public domain" doctrine in order to safeguard some coastal sites. The details are inserted by amendment as a 4th schedule of the civil code, cap. 16.
In addition, the same amendment defines the "coastal perimeter", as well as other landmarks of the coastal zone (art. 311 CC).
I found these changes ground-breaking for the Malta's legal order, but I did not find any literature about them.
Do you have any views or references?
Relevant answer
Answer
Please share me the best answer might you get...
  • asked a question related to Environmental Law
Question
6 answers
Generally, to maintain ecological status, five factors are considered for a river ecosystem:
1. flowing water that is mostly unidirectional
2. a state of continuous physical change
3. many different (and changing) microhabitats
4. variability in the flow rates of water
5. plants and animals that have adapted to live within water flow conditions.
During water distribution of trans border water resources, only water is considered irrespective of water ecology. If we want to consider river ecology, especially for maintaining fish population, and want to estimate minimum water flow, what procedure may be adopted to identify minimum required flow?
Relevant answer
Answer
There have been various instream flow methodologies developed. A lot depends on the natural range of variation and species present. Some use a minimum value of 7Q10 (the weekly average low that occurs at 10 year frequency). For channel maintenance, there should be at least a bankfull event every year or two to prevent vegetation encroachment, move sediment to maintain channel dimension. I would suggest that one size or cookbook approach is not going to fit all circumstances. Perennial side tributaries along rivers can be localized habitat refuges of cool water and elevated oxygen for mobile species as they enter warm and low oxygen rivers. Fishery and aquatic biologists are apt to have information on the needs of species present. There may be other water use needs to consider, such as swimming, scenic, water available for emergencies as fire control, community and industrial needs, waste treatment and water discharge standards, etc. Some ecosystems also provide important habitats for water birds and animal species.
  • asked a question related to Environmental Law
Question
4 answers
A judgment of the Supreme Court of Appeal - SA Predator Breeders Association (SAPBA) v Minister of Environmental Affairs  found that the Minister of Environmental Affairs, inter alia, did not have the legislative mandate to regulate ethical or animal welfare matters, or issues not related to conservation.
However the Minister is legally mandated in terms of NEMBA to ensure,  the “protection of species that are threatened or in need of protection to ensure their survival in the wild”, and “that the utilisation of biodiversity is managed in an ecologically sustainable way”.
Relevant answer
Answer
That's a great question. Philosophically, animal law and environmental law respond to different imperatives, and legally they have different objects. Environment is an intrinsically anthropic concept, after all the environment is what surrounds men. The protection of biodiversity, in international law and in most national legal systems, typically is considered part of environmental law, and as such it not concerned by the wellbeing of wildlife, but by its conservation for anthropic reasons (moral, economical, etc). Even though animal law has many links with environmental law, is a different branch of law.
  • asked a question related to Environmental Law
Question
3 answers
I am taking an Environmental Law course and I am wondering if there are any current events that may lead to litigation or hearings in Ontario Canada?
Relevant answer
Answer
If you want something interesting to look into you can look at the push to legalize cannabis and how that is affecting First Nation people and their land. There is both a push for, and push away from, allowing potential cannabis corporations to produce on aboriginal land. Due to the history of corporations aggressive use of their land in the past, many leaders are reluctant to share a portion of the land for the proceeds of producing cannabis. However, there are some tribes that are eager to join because for the first time they are being compensated in a reciprocated manner. It would be interesting to look at their clauses, limitations and exactly how it will affect the aboriginal people from both an environmental and economic standpoint. I believe they also have their own judicial process to a certain degree which would also make for an excellent, stand out paper for your course.
If you want to have a brief read about it I remember first reading an article on it in the Toronto Star. Give it a read and then decide if there is enough for you to examine critically.
Good luck!
  • asked a question related to Environmental Law
Question
2 answers
Hi, All! I am looking for papers related to the methodological framework to compare policy architecture at the country level, preferably in environment and biodiversity conservation, but examples in other fields also can be useful. I am new on this topic, so any information will be useful. Thanks in advance!
Relevant answer
Answer
Hello guido
I am sorry. I have no information on this aspect.
Jairo
  • asked a question related to Environmental Law
Question
3 answers
Water is becoming an increasingly scarce resource. Oil-field frac water has now been used to grow Bermuda grass. Recycled wastewater, as a broad class, is being converted to drinking water as well as water for irrigating crops consumed raw. Some crop plants can bioaccumulate toxins and pathogens. The water quality standards, if they exist, vary. The lab tests may or may not reflect reality. This variation in the background would seem to raise questions as to the prudence of its use in certain instances. Is the water safe or is it just technically legal? If the former-----well and good, but if the latter?
At the 2006 at the Environmental Law Conference in Yosemite, various papers were delivered. Session # 27 was to contain some interesting insight into an area known as "non-action by regulators". One of the session's papers was on pharmaceuticals in groundwater. Of particular interest was a paper undertaking the analysis of the Safe Drinking Water Act. Its author, one of the US/EPA drinking water toxicologists finished his delivered paper with the following: “Bottom line on almost all of the “emerging” contaminants that have attracted attention: It will be a long time, if ever, before they are regulated under the SDWA.” But, that was an issue raised about the SDWA. What about other standards?
Are the standards failing to keep up with the input of emerging contaminants? EPA, per TSCA, estimated an addition of somewhere between 500 and 600 new chemicals per year. What might be the range of potential impacts to the human metabolic processes? What percentage enter the aquatic resource base? Who is following this and are those impacts growing or are we just better able to measure them? Does the regulatory community really know? What are the costs to know, and conversely, to not know? Are these questions warranting an answer? These are some questions that come to mind.
To look at this general policy area, I'd like to single out just one of the many metabolic systems that might be affected by uncontrolled emerging contaminants. Of interest because of its critical metabolic functions I will want to briefly look at the mitochondria as a point of discussion.
I tried to print your large paper, but that failed. Can you send a printable form?
Dr Edo McGowam
Relevant answer
Answer
The data you gather would also be of interest to me as the local government is contemplating recharge of our underlying aquifer with recycled wastewater
  • asked a question related to Environmental Law
Question
13 answers
In Belgium, a citizen can sue on behalf of the municipality he lives in and the municipal government (mayor and aldermen, those who normally decide over starting a suit or not) cannot prevent the individual of suing on behalf of the municpality.
It resembles the qui tam procedure known in the U.S.A. When the suit is lost, the suing individual must pay, when he wins, the gains from the suit flow to the municipality.
In Belgium it's mostly used in environmental lawsuits (non-pecuniary injunctions) because those suits can only be started by the municipality and not an individual.
Similar procedures existed until 1966 in the Netherlands and still exist in France and Luxembourg, apparently all three modeled after the Belgian example (law of 1836).
In France and Luxembourg however, the indivudual needs the approval of his action by the administrative court (France) or the national government (Luxembourg).
Does such a procedure also exist in other countries?
Primary legal sources:
- Belgium: Loi communale / Gemeentewet, art. 271 (1988 version, still valid in the Brussels region, originally art. 150 of the 1836 law)
- Flanders: Gemeentedecreet, art. 194
- Wallonia: Code de la démocratie locale et de la décentralisation, art. L1242-2
- France: Code général des Collectivités Territoriales, art. L 2132-5 (originally art. 49.3 of the 1837 law)
- Luxembourg: Loi communale, art. 85 (originally art. 107 of the 1843 law)
- Netherlands: Gemeentewet, art. 143.3 in original 1851 version, art. 177.3 in 1966 when abolished
Relevant answer
Answer
I am not an expert on this subject.  But in the United States, one must have "standing" to sue under Article III of the Constitution. Generally this requires proof of (1) harm or injury to the person suing; (2) that the injury was a legally protected right; and (3) that the injury or harm resulted from the defendant's action.  A municipality in the U.S. is a subdivision of a State and so the right to sue would generally have to arise under a State Constitution (unless the individual were raising a federal claim). There is a federal statute, the False Claims Act where individuals may sue on behalf of the government if the individual believes the government has been harmed -- the citizen's "standing" to sue is generally based on the citizen's rights as a taxpayer.  Thus, if someone over charges the government for a hammer, it is my tax dollars that are being wasted so I can sue.  At the level of a municipality, a similar right to sue attaches as a state taxpayer under a State Constitution in many states.  For example, there was a case in Colorado where someone sued to stop abortions paid for with state dollars. I think they lost however because the government's right to provide healthcare over rode the citizen's interest in where their tax dollars went, but I don't actually remember exactly.  So the "standing" to sue is separate from the ability to win the lawsuit, which is the same elsewhere I suspect.
If I were smarter I could probably be more succinct.  You can see it would be a matter of looking up case law in 50 states + Or I could link a Supreme Court case the the False Claims Act if you like.
Cheers! Mary
  • asked a question related to Environmental Law
Question
4 answers
I am on a learning curve to understand the details of Hydrogen Embrittlement mitigation for fasteners.  I am doing a, "deep deep dive," on the subject for my personal knowledge since more than one my clients has had this issue come up.
I like to separate the wheat from the chaff, as the saying goes, by understanding the problem from a chemical, material, environmental and physics root knowledge based building process.
There are a lot of expert opinions, current and historical, that do not agree.  There are a lot of material options available for fasteners, not to mention coatings, finishes and post treatments. 
Since the Oakland-Bay Bridge bolt failure was a result of HE, there has been a new wave of research, investigation, testing, analysis and evaluations from government, universities and private industry.  The literature is mountainous. 
I need a material sciences person who can direct me to the chemical processes going on with HE base materials, treatments, coatings and finishes.  I have a structural expert with some experience but not necessary recent knowledge who can assist with loads and stresses as they factor into the issue, for instance, time versus loading.  I found a good paper or two but not exactly what I'm looking for.
Ultimately, I am trying to set a minimum standard relative to HE that can be used as a baseline to fastener providers and customers alike. 
Can anyone out there point me to a good chemical engineer familiar with coatings and finishing processes for metals.  Is there a metallurgical engineer that can provide some guidance.  I am more than willing to help co-author a technical paper on the subject based on everyone's contributions.  However, I need the right team of consultants and experts first.
I work in San Jose, CA and live in the Sacramento Valley area of CA.  I am well connected 24x7 and can web-ex and conference call as needed.  Any volunteers?
Thanks,
Nate Chandler
916-316-2360
Relevant answer
  • asked a question related to Environmental Law
Question
10 answers
Can someone refer to a leading case law from common law jurisdictions regarding (compulsory) land acquisition process (by the state for the public purpose)? What are the constitutional/legal requirements for this purpose? Whether State is free to acquire any private and from anywhere from anyone without justification?  
Relevant answer
Answer
Read Kelo v. City of New London, Connecticut, 545 U.S. 469 (2005) if you are interested in private property taken for public use even if it means being turned over to private developers.
  • asked a question related to Environmental Law
Question
5 answers
My doctoral research is in the area of environmental law, focusing on good regulations for reverse logistics of electronic waste. In addition to analyzing the development of European directives on the matter, I also observe the same process in Brazil, and will possibly suggest some instruments based on the European experience to enhance that process.
Therefore, a contact with officials at the federal level on this topic is essential, particularly in order to obtain access to specific documentation. It is also urgent, given that none of the previous contact attempts by the means made public have been effective.
Relevant answer
Answer
Zilda Veloso is the main responsible for that subject at the MMA (Ministry of Environment). 
However there is still few and unavailable documentation, because discussions for the modelling of the Sectorial Agreement (SA) are still going on.
What I know is that they are depending on stakeholders agreement concerning a few WEEE aspects (e.g. hazardousness), in order to finalise and communicate the SA.
You can also require MMA/Federal documentation at the Portal da Transparência, which you can find at the MMA website. I have tried myself regarding the WEEE SA, and Ms. Veloso answered there was still none official but it may take not too long. 
We can talk about it (and also in portuguese).
Best regards,
Ricardo
  • asked a question related to Environmental Law
Question
4 answers
Through research work and googling.
Relevant answer
Answer
Biodiversity has a pivotal role in environment as well as in environmental law. Laws are formulated to protect rights and interest of common people.We know that survival of man is dependent on biota. Hence proper information of biodiversity, their ecological implications, their functions and their economic contribution need to be talen care of while formulation environmental law.
  • asked a question related to Environmental Law
Question
3 answers
marine environmental law.Does anyone know report or publication on marine spatial planning in West Africa ? 
  • asked a question related to Environmental Law
Question
8 answers
I am researching the topic of implementation of European directives on workers' information and consultation (specifically European Works Councils) where I am looking at enforcement frameworks and their implementation. The EWC directive 2009/38 stipulates that Member States need to ensure that there are sanctions in place which are 'effective, dissuasive and proportionate'. I have gathered some material on the concrete meaning of these terms, but am looking for more tips on how to concretise these abstract notions. I have been looking at general legal literature, environmental law (where some specific sanctions are applied, like restitutio ad integrum, immediate stopage of a breach), but so far less into the EUCJ jurisprudence (I intend to do that later).
Any ideas on the line of argument, tips, interesting sources or official EU documents would be very helpful.
Relevant answer
Answer
You may also find it useful to consult the following two books on the implementation of EU directives, both of which discuss criminal sanctions and the requirements of effectiveness, equivalence and proportionality that flow from the CJEU caselaw.
Sacha Prechal, Directives in EC Law (OUP, 2005), pp 90-91.  
Richard Brent, Directives: Rights and Remedies in English and Community Law (LLP/Informa Law, 2001), pp. 115-119.
  • asked a question related to Environmental Law
Question
8 answers
Dear everyone,
I’m writing a study about the impact of the law requiring the destruction of thistles on populations of bumblebees in Europe. To do this, I’m looking for information about this law in each country of the European Union. I would be very pleased if you could provide these few information:
- Is there (or was there) a law on the destruction of thistles (e.g. Carduus spp. and Cirsium spp.) in your country?
- If so, since when?
- Does it apply to the whole country or just to a region?
- Which species are involved?
- Would you know any studies that have already dealt with the consequences of such a law on biodiversity?
Many thanks in advance for your help !
Sarah
Relevant answer
Answer
Please see below:
Best,
Guy
Travaux parlementaires
Vos sénateurs
Europe & International
Territoires
Connaître le Sénat
Espace presse
15 octobre 2014
Accessibilité |
Plan du site |
Alertes
Recherche Recherche Recherche avancée
Langue
Base Questions > 2012
Destruction des chardons
13e législature
Question écrite n° 22123 de M. Gérard Larcher (Yvelines - UMP)
publiée dans le JO Sénat du 02/02/2012 - page 257
M. Gérard Larcher attire l'attention de M. le ministre de l'agriculture, de l'alimentation, de la pêche, de la ruralité et de l'aménagement du territoire sur les critères de contrôle de la destruction du chardon par les exploitants agricoles, afin de respecter les bonnes conditions agricoles et environnementales (BCAE).
En effet, dans le cadre de la mise en œuvre de la politique agricole commune (PAC), la conditionnalité soumet le versement de certaines aides, en particulier les aides du premier pilier, au respect d'exigences en matière d'environnement, de santé publique, de protection animale, de santé des animaux et des végétaux ainsi qu'au respect de mesures relatives aux bonnes conditions agricoles et environnementales (BCAE).
Celles-ci intègrent, dans de nombreux départements, un arrêté préfectoral relatif à la destruction du chardon, qui est inscrit à l'annexe B de l'arrêté du 31 juillet 2000 établissant la liste des organismes nuisibles aux végétaux, produits végétaux et autres objets soumis à des mesures de lutte obligatoire.
Aussi, un certain nombre d'exploitations agricoles concernées font l'objet de contrôles menés par l'Agence unique de paiement. Dans ce contexte, l'agriculteur disposant de 0,01 % de chardons sur son exploitation peut être soumis à la même pénalité qu'un exploitant possédant 1 % de chardons sur son champ. Il semble qu'il n'existe pas de proportionnalité dans la pénalité.
Par conséquent, il lui demande de bien vouloir lui indiquer son avis sur la mise en place d'une pénalité progressive en matière de lutte contre les organismes nuisibles, et en particulier le chardon.
Réponse du Ministère de l'agriculture, de l'alimentation, de la pêche, de la ruralité et de l'aménagement du territoire
publiée dans le JO Sénat du 10/05/2012 - page 1148
Les normes de bonnes conditions agricoles et environnementales (BCAE) constituent l'un des domaines de la conditionnalité des aides de la politique agricole commune (PAC). L'objectif de l'une de ces normes est de garantir le bon entretien des terres cultivées ou des jachères. Parmi les critères pris en compte, le défaut d'entretien peut notamment se caractériser par toute infraction à un arrêté préfectoral pris pour lutter contre les nuisibles par application de l'article L. 251-8 du code rural et de la pêche maritime. Il s'agit, le cas échéant, de la présence de chardons. En ce qui concerne le régime de sanction, les États membres sont contraints par la réglementation communautaire qui prévoit que, en règle générale, toute négligence entrant dans le champ d'application de la conditionnalité conduit à une réduction de 3 % appliquée au montant total des aides de la PAC. Ce pourcentage peut, le cas échéant, être diminué à 1 % du montant total des aides soumises à la conditionnalité ou augmenté à 5 %. En outre, une anomalie, qualifiée de « mineure », peut être remise en conformité par l'exploitant, ce qui permet de ne pas appliquer de réduction. Dans ce cadre juridique, la France utilise déjà toutes les latitudes existantes pour que les grilles de contrôle soient établies sur la base de la progressivité de la réduction en fonction des non-conformités constatées. La densité d'adventices constatée, le chardon n'étant qu'une espèce parmi d'autres, est l'un des critères permettant d'apprécier le défaut d'entretien des terres. Toutefois, modifier le régime de sanction, en basant sa progressivité sur la densité de chardons, conduirait à accroître la complexité du système actuel sans que cela présente une réelle pertinence au regard de l'ensemble des critères caractérisant le défaut d'entretien.
  • asked a question related to Environmental Law
Question
7 answers
Challenges including the legal and regulatory requirements businesses in the energy and utilities sector will have to meet in the future, near or far, any ideas on this will be greatly appreciated.
Relevant answer
Answer
Dear Alecia,
A good example you can find in your country. I'm thinking about capacity market and the problem of state aid with all the economic problems behind it. Like others, I would also add change in the system of regulation as a consequence of implementation of smart grids and decentraization of energy system. Huge changes are expected also in the gas market (LNG, shale gas) which becomes today more international than regional.
Best regards,
M.S.  
  • asked a question related to Environmental Law
Question
1 answer
Most of the literature talks about "small" EfW plants being those which handle less than 100,000tpa of waste. Would it be cost-effective to build a very small one, say 500 tpa capacity?
Relevant answer
Answer
Zero, since most existing waste plants are viable and profitable while producing zero useful energy.
The steam turbine for generation used with a simple incineration boiler are not really a good match for a small plant. Also the scrubbers for a first world installation would cost as much for a backyard 500tpa plant as for a much larger plant. The organics and moisture content of the waste stream would determine your energy output, viability and plant design for both gasification and anaerobic digestion.
  • asked a question related to Environmental Law
Question
13 answers
Recently EPA revoked the PM10 annual standard. California has not done so and actually they have a very strict standard. Many studies show long term effects of PM10 (usually when PM2.5 measurements) are not available. Chile wants has revoked it but I feel is not a wise decision. Any comments?
Relevant answer
Answer
The most obvious study on improvement is: "Effect of air-pollution control on death rates in Dublin, Ireland: an intervention study" by Luke Clancy, Pat Goodman, Hamish Sinclair, Douglas W Dockery, Lancet 2002; 360: 1210–14.
Whether risk is associated with chemical or physical characteristics is a good question and it seems that jury is still out.
  • asked a question related to Environmental Law
Question
4 answers
Does phytoremediation treatment save the 4/5 of the cost of more conventional technology in cleaning up the contaminated soil on a post-industrial site and how?
Relevant answer
Answer
You may wish to look at some of the Canadian work. Example:
  • asked a question related to Environmental Law
Question
44 answers
In the wake of human rights promotions all over, its scope is supposed to be extended to the sustainable development process and this question has the sole agenda of it.
Relevant answer
Answer
What I find interesting about this whole discussion, is that as far as I can see, no-one has mentioned the European Court of Human Rights, or explored the extent to which the European Convention on Human Rights recognises the nebulous concept of environmental rights - I'm talking here of a human right to a healthy environment, rather than the rights which may or may not attach to flora and fauna.
Firstly, let's tee up the legislative side. Neither the UDHR or the ECHR expressly recognise any human right to the environment.
However, the ECtHR has recognised that such a right might have an impact in some cases - I'll give a (very brief) summary of the ones I have encountered.
Powell & Rayner v UK (9310/01) 1990. Noise from Heathrow airport not a violation of Art 8 ECHR (right to a private and family life).
Hatton v UK (36022/97) 2003. Noise from Heathrow airport night-flights not a violation of Art 8.
Moreno Gomez v Spain (4143/02) 2004. Night-time noise from nightclubs was excessive, and was a breach of Art 8.
Dees v Hungary (2345/06) 2010. Noise from unregulated heavy traffic was a violation of Art 8.
(see also Mileva & Others v Bulgaria; Dubetska & others v Ukraine; Zammit Maempel & others v Malta; Miroslawa & Janusz Pawlak v Poland; Martinez & Manzano v Spain; and Zeynettin Oto v Turkey, all of which invoke Article 8 in relation to noise pollution)
Noise pollution has provided the bulk of cases referred to the ECtHR that can be linked to "environmental rights" but there are also cases on industrial pollution (Oneryildiz v Turkey (2004), Lopez Ostra v Spain (1994), Fadeyeva v Russia 92005), Giacomelli v Italy (2006), Guerra v Italy (1998), Taskin v Turney (2004) which again mainly invoke Article 8. Oneryildiz is the exception, where the court found a break of Article 2 (right to life).
The closest the court has yet come to recognising environmental rights was in Hamer v Belgium (21861/03) 2007, where the court said (para 79) "Financial imperatives and even certain fundamental rights, such as ownership, should not be afforded priority over environmental protection considerations, in particular when the state has legislated in this regard."
So, in direct answer to Sahab's question, I would have to say no, not yet, but change is slowly coming,
  • asked a question related to Environmental Law
Question
6 answers
Environmental jurisprudence is currently a rather unclear and evolving area of law. It is my view that clarity and thorough understanding of its scope can compliment the widely used environmental activism mechanism... It would be nice to have your views on this.
Relevant answer
Answer
Since my professional and personal life experiences have decidedly influenced what I share with you on this topic, by way of introduction, I am a 61+ year old American trained as a lawyer in the tradition of the English common law. From that, certain perspectives arise. One, is that my first-hand social and political experiences extend to the early 1960s; the second is that since the mid-1970s, I have spent the overwhelming part of my career as a New York State government attorney actively participating in developing environmental protection policy, in convincing the legislature to enact legislation to implement that policy, in creating programs designed to clean up hazardous waste contamination, in drafting regulations implementing the statutes enacted to provide that protection. I also personally have enforced the law in administrative and judicial contexts; in my supervisory capacity over other attorneys, I referred for criminal prosecution environmental law infractions that violated my state’s criminal laws.
I firmly believe that government exists not to benefit itself but to benefit those subject to its authority. Thus, ideas flowing from those governed that seek to promote the general welfare have as much validity as ideas flowing from the government itself; and the statute enactment process provides the primary vehicle to consider, weigh, and either accept or reject various policy, such as those related to environmental protection.
At least in those jurisdictions having a tradition of governmental upholding and enforcement of judicial decisional precedent and of public respect for the legitimacy of, and subsequent conformity with, that precedent, there is another governmental means available to promote environmental protection, namely, judicial decisional precedent. However, that means can promote environmental protection in a manner much focused and restricted than that which the legislative process affords since judicial decisions must flow from interpretations of previously enacted legislation and from certain time-honored principles of – as it is called in jurisdictions having English law as its basis – the “common law.”
That said, judicial decisional law certainly provides a powerful tool for those wishing to promote environmental protection if that decisional law can base itself upon extant statutory enactments and precedential decisions. Indeed, advocacy can take advantage of the force of law’s respect, resulting in policy change – change powerful enough to change social mores. I witnessed this phenomenon in my own lifetime in my own country: we had legally authorized racial segregation until litigation started to crack in the late 1940s, litigation based upon reconciliation of constitutionally-mandated equality of the races with the reality of inequality, that eventually led to its elimination and that, allied with legislative action, literally changed social policy in favor of actively trying to promote a color-blind society.
Judicial decisional law can promote environmental protection on a number of levels; and I know that this is true from personal experience. Litigation brought by individuals or by non-governmental organizations can force government to faithfully carry out mandated actions (for example, to study a particular environmental problem and then to promulgate regulations designed to address the problems found). It also can force individual defendants engaged in practices violative of environmentally-protective statutes or violative of the peaceful enjoyment of one’s own property (as through use of trespass and nuisance theory). It can force whole industrial sectors to change their modes of operation in order to avoid liability to those potentially harmed (as was done under various hazardous waste contamination laws that imposed strict liability upon generators of hazardous waste released into the environment in an uncontrolled manner and that encouraged various manufacturing organizations to adopt “best management practices” for their membership designed to minimize their liability exposure). Allied with public information campaigns, it can help effect social policy change in favor of enhanced environmental protection. Al the above has been successfully tried in the United States and in many of its states; thus, there is abundant precedent. If you wish, I could explore this with you further.
  • asked a question related to Environmental Law
Question
4 answers
It is almost implied that the environmental law must be uniformly applied cross-border in order to be effective. I attach below a new case from the CJEU C-258/11, only the AG Opinion has been delivered. Except the reinforcement of the importance of the precautionary principle and the specification that an effect which is permanent or long lasting must be regarded as an adverse one in the light of the named principle, the issue of admissibility is also interesting.
It is obvious that nature can not be divided in different jurisdictions, but the reality is that we all live on a political map. A very formalistic interpretation of the admissibility issue would lead to the conclusion that the question was inadmissible.
Economic Freedoms by analogy
According to settled case-law, the provisions of the Treaty do not apply to purely internal situations in a Member State (see, to that effect, Joined Cases C‑54/88, C‑91/88 an C‑14/89 Nino and Others [1990] ECR I‑3537, paragraph 11; Case C‑134/94 Esso Española [1995] ECR I‑4223, paragraph 17; and Case C‑389/05 Commission v France [2008] ECR I‑5397, paragraph 49).
However, even in a purely internal situation the Court’s answer may nevertheless be useful to the referring court, in particular if its national law required it to grant the same rights to an own national as those which a national of another Member State in the same situation would derive from European Union law. see, Joined Cases C‑570/07 and C‑571/07 Blanco Pérez and Chao Gómez [2010] ECR I‑4629, paragraph 39; Case C‑393/08 Sbarigia [2010] ECR I‑6333, paragraph 23; and Case C‑245/09 Omalet [2010] ECR I‑0000, paragraph 15
Where domestic legislation adopts for purely internal situations the same solutions as those adopted in Union law, it is for the national court alone, in the context of the division of judicial functions between national courts and the Court of Justice under Article 267 TFEU, to assess the precise scope of that reference to Union law, the consideration of the limits which the national legislature may have placed on the application of Union law to purely internal situations being a matter for the law of the Member State concerned and, consequently, falling within the exclusive jurisdiction of the courts of that Member State. Joined cases C-439/07 and C-499/07, paragraphs 58-59
Relevant answer
Answer
Yes, exactly even in cases where no cross-border element is de facto present, it may be very probable that a similar situation in the near future may involve a resident of another member state. Trade within the internal market is supposed to be free and even potential barriers, which only are likely to hinder the establishment & development of the internal market, are prohibited. (The market access type of approach) This is also the most usual case.
However there are some newer interesting cases coming from other fields than free movement. A very interesting one is the recent antitrust case concerned with a Hungarian Cartel Allianz Hungária Biztosító, case C-32/11. The judgment has been released today and the solution adopted does not follow the AG Opinion from 25 October 2012. I am happy to see that the Court took the view first that it had jurisdiction and second that the issue was admissible.
It's always a good feeling to discover that the Court has ruled in line with your own reasoning. http://www.concurrences.com/anglais/bulletin/news-issues/october-2012/the-ecj-advocate-general-cruz?onglet=1&lang=en