Principles of Environmental Law
| Author | Winston Anderson |
| Pages | 43-60 |
Page 43
3. Principles of Environmental Law
Environmental law is properly regarded as a
distinct legal discipline because it embod-
ies principles concerned uniquely with the
management of the environment. ese principles
provide guidance for the development of specic
rules and standards for environmental protection.
Fundamentally, environmental principles are syn-
onymous with environmental values and policies.
Confusion arises only where t he concept of prin-
ciples is used in the Dworkinian sense to indicate
deontological values of rights and duties that may
then be contrasted with policies, which are instru-
mental in character and refer to community goals.1
For current purposes, such ne distinctions are not
necessary. What is argued here is that there is a
clear, substantial, and causal relationship between
principles, values, a nd policies, on the one ha nd,
and the emergence of specic rules and standards
on the other. For this reason, the principles at the
core of environmental regulation are legal in their
nature.2
e principles, values, and policies that will be
discussed draw color, inspiration, shape, and con-
tent from the 1972 Stockholm Declaration on the
Human Environment (Stockholm Declaration)3
and the 1992 Rio Declaration on Environment and
Development (Rio Declaration).4 In hierarchical
terms, the broadest and most important is the con-
1. J A D W, E L
E 146 (1999).
2. Id.
3. Stockholm Declaration on the Human Environment, adopted by
the U.N. Conference on the Human Environment at Stockholm,
June 16, Section I of the Report of the United Nations Confer-
ence on the Human Environment, UN. Doc. A/CONF.48/14
and Corr. 1, 11 I.L.M. 1416 (1972).
4. Rio Declaration on Environment and Development, U.N.
Conference on Environment and Development, U.N. Doc. A/
CONF.151/5/Rev.1, 31 I.L.M. 874 (1992).
cept of sustainable development.5 Subsidiary prin-
ciples include integration, intergenerational equity,
precaution, pollution prevention, polluter pays, and
public participation. ese principles are derivative
and may be regarded as aspects or manifestations
of the desire for sustainable development.6
In other words, a theme that unies environmen-
tal principles is the concern that human interaction
with the environment be sustainable. Beyond this,
they may be broken down into several categories:
those concerned with the relationship bet ween
environmental controls and the necessity for social
and economic development; those relevant to pre-
venting or reducing likely pollution; those material
to allocating liability for environmental harm; a nd
those germane to the empowerment of individuals
to contribute to environmental management.7
As broad guides to specic action, environmen-
tal principles may not provide concrete regulatory
standards. e popular past ime of drawing atten-
tion to their “vagueness” does no more than restate
their nature and in no way denies their eect as gen-
eral lega l principles. According to well-established
doctrines of administrative law,8 agency action
must be taken on the basis of material consider-
ations and must serve permissible objectives. Deci-
sions totally contrary to accepted environmental
principles could be unlawful. Governmental action
that failed to take environmental considerations
into account would probably be similarly stigma-
5. See, e.g., M S, D M. O, W, S-
E L 45 (2001); D H,
E L 23-24 (1996).
6. Stephen Tromans, High Talk and Law Cunning: Putting Envi-
ronmental Principles into Legal Practice, 2 J. E. P. L.
779, 791 (1995).
7. See, e.g., S supra note 5, at 1.
8. Associated Provincial Picture Houses v. Wednesbury Corp.
[1948] 1 K.B. 223; Council for Civil Serv. Unions v. Minister
for Civil Serv. [1985] A.C. 374.
Page 44 Principles of Caribbean Environmental Law
tized as ultra vires. Ultimately, however, environ-
mental principles, which tend to be of international
law origin, must pass the acid tests of validation
under Caribbean constitutions, consistency with
domestic legislation, and suitability to the rules of
judicial precedents. Only in these circumstances
can international legal principles be regarded as
potentially applicable.
Juridical Applicability
A problematic issue is the status of genera l envi-
ronmental principles in Caribbean law. Questions
of whether and by what means these policies of
admittedly international origin and orientation
have found their way into Caribbean jurispru-
dence must be, but are not easily, answered. For
doctrinal rea sons, statements of principles in inter-
national declarations or treaties may not be taken
and applied by Caribbean courts simply by virtue
of their formal expression in these documents,9 but
they may become legally applicable in four main
ways. Two are generally accepted, but the others
require advocacy.
It is also the case that in the absence of some leg-
islative at, Caribbean courts are unlikely to accept
or apply general environmental concepts that are
deemed contrary to ex isting legislation or regula-
tions. In Delapenha Funeral Homes v. Minister of
Local Government and the Environment 10 it was
held that although the governmental authorities
had acted in good faith and in line with the rel-
evant environmental principles, their action could
not stand because they had acted outside their stat-
utory powers.
Specific Legislative Incorporation of Principles
Environmental principles may be expressly incor-
porated through legislation. e most powerful
illustration of this comes from the 1996 Environ-
mental Protection Act of Guyana.11 e act estab-
lished an environmental protection agency (EPA)
to provide for the management, conser vation,
9. For a more complete discussion of this subject, see chapter 1,
above.
10. Delapenha Funeral Homes v. Minister of Local Gov’t & Env’t,
CV 1554-2007 (judgment June 13, 2008) (High Ct.) (Jam.).
11. Environmental Protection Act, No. 11 (1996) (Guy.). Other
framework legislation adopting some of the environmental
principles, such as sustainable development and intergenerational
equity, are the Environmental Management Act, No. 3 (2000)
(Trin. & Tobago); Environmental Protection Act, No. 22 (1992),
as amended by No. 2 (1998) (Belize).
protection, and improvement of the environment;
the prevention or control of pollution; the assess-
ment of the impact of economic development on
the environment; and the sustainable use of natural
resources. Section 4 (4) provides that the EPA is
to make use of current principles of environmental
management in performing its fu nctions and spe-
cically the “polluter pays” principle, the “precau-
tionary” principle, the “strict liability” principle,
the “avoidance” principle, and the “state of tech-
nology” principle. Clearly, any action by the EPA
taken in deance of these provisions is susceptible
to being struck down by the courts.
Similarly, the 2000 Environmental Manage-
ment Act of Trinidad and Tobago12 commits the
government to the development of a national
strategy for sustainable development, and to this
end, the National Environmental Policy has been
formulated.13 Polluters should be held responsible
for the cost of their polluting activities, a nd there
should be a coordinated approach to ensuring
that the application of relevant laws is advocated.
Extensive provisions are made to promote public
awareness and participation.
Whether the principles are rened to a level of
specicity that allows for self-execution—that is,
their application without need for further legisla-
tive action—is a matter for judicia l determination.
In the Australian case of Leatch v. Director-General
of National Parks and Wildlife Service and Shoal-
haven City Council14 there was specic state legisla-
tion incorporating the principle of precaution, and
the Land and Environment Court accepted that
the principle had thereby become a part of state law
and had to be implemented by the director-general
of the National Parks and Wildlife Service. Permis-
sion to construct a link road could not be granted
without consideration of an endangered species
of f rogs l iving in the vicinity. But Fishermen and
Friends of the Sea v. e Environmental Management
Authority and Atlantic LNG Company of Trinidad
and Tobago15 held that the precautionary principle
was included in the National Environmental Policy
only as a general statement of principle, which was
12. Environmental Management Act, No. 3, preamble (2000) (Trin.
& Tobago).
13. e Environmental Management Authority is, by virtue of §30
of the Act, required to implement this policy.
14. Leatch v. Dir.-Gen. of Nat’l Parks & Wildlife Serv., [1993]
NSWLEC 270 (Austl).[1993] NSWLEC 191.
15. Fishermen & Friends of the Sea v. Envtl. Mgmt. Auth., CV.
2148-2003, ( Judgment Oct. 22, 2004) (High Ct.) (Trin. &
Tobago), a’d [2005] UKPC 30-2004 (appeal taken from Trin.
& Tobago) (U.K.).
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