LEGISLATIONLEGISLATION Legislation (or “statutory law ") is law which has been promulgated (pasludināt) by a legislature (likumdevēja vara) or other governing body, or the process of making it. Another source of law is judge-made law or case law. Before of legislation becomes the law, it may be known as a bill (likumprojekts). Legislation can have many purposes: to regulate, to authorize, to proscribe, to provide funds, as well as to sanction, to grant, to declare or to restrict.
LEGISLATIONLEGISLATION Case law (precedentu tiesības) is the set of reported judicial decisions of selected appellate courts which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis (legal principle by which judges are obliged to respect the precedents established by prior decisions). These interpretations are distinguished from statutory law which are the statutes and codes enacted (ieviest) by legislative bodies. Regulatory law which are regulations established by government based on statutes. In some states, common law are the generally accepted laws carried to the colonies and former colonies of England (USA, Australia, etc.). Trials (tiesas process) and hearings (uzklausīšana) which are not selected as “courts of first impression” do not have rulings (tiesas lēmums) that become case law, therefore, these rulings cannot be precedents for future court decisions.
LEGISLATIONLEGISLATION Statutory law (ar likumu noteikts) or statute law (parlamenta likumdošanas akts) is written law, as opposed to oral or customary (parasts) law, set down by a legislature or by a legislator (in the case of an absolute monarchy). Statutes (parlamenta likumdošanas akts) may originate with national, state legislatures or local municipalities. Statutes of lower jurisdictions are subordinate to the law of higher. An oral law is a code of conduct in use in a given culture, religion or community application, by which a body of rules of human behaviour is transmitted by oral tradition and effectively respected, or the single rule that is orally transmitted.
LEGISLATIONLEGISLATION Legislation is regarded as one of the three main functions of government, which are often distinguished under the doctrine of the separation of powers. Those who have the formal power to create legislation are known as legislators. Judical branch of government will have the formal power to interpret legislation. The executive branch of government can act only within the powers and limits set by the law.
LEGISLATIONLEGISLATION The Westminster system is a democratic parliamentary system of government, modelled after the politics of the United Kingdom. This term comes from the Palace of Westminster, the seat of the Parliament of the United Kingdom. The system is a series of procedures for operating a legislature. It is used in the national legislatures and sub national legislatures of most Commonwealth and ex-Commonwealth nations upon being granted responsible government, beginning with the first of the Canadian provinces in 1848 and the six Australian colonies between 1855 and 1890. There are other parliamentary systems whose procedures differ considerably from the Westminster system.
Slide161The Houses of Parliament are situated within the Palace of Westminster, in London.
Slide162German Parliament (Reichstag) building in Berlin. The dedication Dem Deutschen Volke, meaning ‘For the German people’, can be seen on the architrave.
Slide1589 Environmental law means a body of legislative provisions, regulating the public rules of conduct in the area of environmental protection. ENVIRONMENTAL LAW Environmental law constitutional law administrative law criminal law administrative procedure law
Slide12710 If a person fails to comply with these requirements, the state may use coercive (piespiedu) measures against such a person, imposing a corresponding penalty or ordering to eliminate the adverse effects on the environment resulting from the violation. Environmental law belongs to public law, which means that, to protect the environment, the state prescribes for the public certain requirements that must be followed. ENVIRONMENTAL LAW Environmental law Aims of the environmental protection
Slide9011 Environmental law consists of several types of legal sources representing the written law (legislation) and the unwritten law (general legal principles and customary law). The sources of environmental law can be divided into the basic sources or laws and ancillary (palīg-) sources (case law or the rights of judges and jurisprudence – legal science or jurists’ law). SOURCES OF LAW Sources of the law unwritten law – general legal principles and customary law written law – legislation ancillary sources – case law or the rights of judges and jurisprudence
EU Parliament12 EU Parliament Parliament building in Brussels The EU Parliament in Strasbourg
EU Parliament’s partiesSocialists & Democrats (S&D) – 185 European People’s Party (EPP) – 265 European Conservatives and Reformists (ECR) - 56 Alliance of Liberals and Democrats for Europe (ALDE) – 84 The Greens – European Free Alliance (Greens-EFA) – 55 EU Left & Nordic Green Left Alliance (EUL-NGL) – 35 European Alliance for Freedom (EAF) – 27 (eurosceptics) Non-Inscrits - 29 EU Parliament’s parties
Slide150Germany 99 (13.5%) France 72 (9.8%) Italy 72 (9.8%) United Kingdom 72 (9.8%) Spain 50 (6.8%) Poland 50 (6.8%) Romania 33 (4.5%) Netherlands 25 (3.4%) Belgium 22 (3.0%) Czech Republic 22 (3.0%) Greece 22 (3.0%) Hungary 22 (3.0%) Portugal 22 (3.0%) Sweden 18 (2.4%) Austria 17 (2.3%) Bulgaria 17 (2.3%) Finland 13 (1.8%) Denmark 13 (1.8%) Slovakia 13 (1.8%) Ireland 12 (1.6%) Lithuania 12 (1.6%) Latvia 8 (1.1%) Slovenia 7 (1.0%) Cyprus 6 (0.8%) Estonia 6 (0.8%) Luxembourg 6 (0.8%) Malta 5 (0.7%) National apportionment of Members of the European Parliament seats (total 736)
Slide12815 National environmental legal protection is also based on international legislation. For the most part, they are international agreements (conventions, protocols) to which the Member State is a party. EU legislation – including regulations, directives and decisions – is binding to the European Union Member States. EU environmental legislation is developed mainly in the form of directives that the Member States must then integrate into their national law. BASE OF THE EUROPEAN UNION LEGISLATION Binding legislative documents of the EU Decisions Regulations Directives
Slide14216 THE EUROPEAN UNION ENVIRONMENTAL LEGISLATION Two core functional treaties, the Treaty on European Union (originally signed in Maastriht in 1992) and the Treaty on the Functioning of the European Union (originally signed in Rome in 1958 as the Treaty establishing the European Economic Community), lay out how the EU operates, and there are a number of satellite treaties which are interconnected with them. EU acquis communautaire (“community heritage”) are: Primary legislation documents, issued based on European Community establishment treaties Secondary legislation documents – regulations, directives, decisions, conventions, declarations EU aims of environmental policy are: • preserve, protect and improve environmental quality, • provide a high-quality living environment, • sustainable use of natural resources.
Protocols, annexes and declarationsProtocols, annexes and declarations There are 37 protocols, 2 annexes and 65 declarations that are attached to the treaties to elaborate details, often in connection with a single country, without being in the full legal text. Protocols: on the role of National Parliamentsin the EU, on the application of the principles of subsidiarity and proportionality , on the statute of the Court of Justice of the EU, on the statute of the European System of Central Banks and of the European Central Bank, on the statute of the European Investment Bank, ... Annexes Annex I lists agricultural and marine produce covered by the Common Agriculture Policy and the Common Fisheries Policy. Annex II lists the overseas countries and territories associated with the EU. 18
Slide14419 Acquis communautaire Acquis communautaire is a French term referring to the cumulative body of European Community laws, comprising the EC’s objectives, substantive rules, policies and, in particular, the primary and secondary legislation and case law – all of which form part of the legal order of the European Union. This includes all the treaties, regulations and directives passed by the European institutions, as well as judgements laid down by the European Court of Justice. The acquis is dynamic, constantly developing as the Community evolves, and fundamental. All Member States are bound to comply with the acquis communautaire. The term is most often used in connection with preparations by candidate countries to join the Union. They must adopt, implement and enforce all the acquis to be allowed to join the EU. As well as changing national laws, this often means setting up or changing the necessary administrative or judicial bodies which oversee the legislation. That part of the acquis communautaire, which is concerned with regulation of employment and industrial relations, constitutes the foundation for Europeanisation of employment and industrial relations in the Member States of the EU, and the basis for a European system of employment and industrial relations.
European Court of JusticeEuropean Court of Justice The European Court of Justice (officially the Court of Justice), is the highest court in the European Union in matters of European Union law. The Court of Justice of the European Union is tasked with interpreting EU law and ensuring its equal application across all EU member states. The Court was established in 1952 and is based in Luxembourg. It is composed of one judge per member state — currently 28 — although it normally hears cases in panels of three, five or thirteen judges. The court has been led by President.
Slide17221 Hierarchy of the legislation in Latvia BASE OF THE NATIONAL LEGISLATION IN LATVIA National legislation include: Binding regulations approved by local authorities Laws approved by Saeima (Latvian Parliament) Regulations approved by the Cabinet of Ministers (state government)
Slide168Saeima - Parliament of the Republic of Latvia
ENVIRONMENTAL PROTECTION AS ACONSTITUTIONAL NORMENVIRONMENTAL PROTECTION AS A CONSTITUTIONAL NORM Article 115 of the Constitution of the Republic of Latvia stipulates: ”The State shall protect the right of everyone to live in a benevolent environment by providing information on environmental conditions and by promoting the preservation and improvement of the environment”.
Slide169Cabinet of Ministers of the Republic of Latvia
Slide9226 AIMS OF THE ENVIRONMENTAL PROTECTION POLICY IN LATVIA Environmental legal protection is associated with both environmental and natural resource protection and sustainable use, and the protection of human health from harmful environmental factors in the following environment-related areas: • water protection, • soil protection, • protection against noise, • ambient air protection, • nature and biodiversity conservation, • waste management, • turnover of chemical substances and products, • turnover of genetically modified organisms, • emissions and releases into the environment, • environmental impact assessment, • access to environmental information, • public participation in environmental decision making.
Slide9327 For the purpose of the law, ‘the environment’ is taken to mean an aggregate of natural, anthropogenic and societal factors. Obviously, ‘the environment’ includes not only natural factors (the natural environment), but also human beings and their impact on the natural environment. LEGISLATION OF ENVIRONMENTAL PROTECTION In general, environment refers to: § the surroundings of an object, § the natural environment, § all living and non-living things that occur naturally on Earth.
Slide13028 The laws of such countries as the United Kingdom and United States, in turn, belong to another group of Western law – the English-Saxon common law system. In this group of laws, the basic recognised sources of law are both the laws adopted by the parliament (legislative statutes) and judicial precedents. Therefore, in these countries, the so called rights of judges have significantly greater weight than in continental Europe. The countries that belong to the continental European civil law system have codified laws, which are often referred to as codes. In several countries, there are civil and criminal as well as environmental law codifications. For example, Germany, France and Sweden have environmental codes. Latvian environmental regulatory standards are included not just in one but in several laws: the Environmental Protection Law, the Law on Pollution, the Law on the Conservation of Species and Biotopes, the Law on Specially Protected Nature Territories, the Protection Zone Law, the Waste Management Law. UNDERSTANDING OF THE LAW
Slide9729 Human behaviour is governed by different types of rules – from etiquette and morality to legal provisions. However, only the legal provisions are contained in the sources of law and are binding. Environmental laws are primarily focused on solving environmental problems and include measures that should be taken in order to prevent known environmental problems. Compliance with the requirements of legal provisions makes possible to eliminate environmental damage or to reduce its impact. UNDERSTANDING OF THE LAW
Slide9830 To prevent human-created environmental problems successfully, we need to develop a strategy to change human behaviour, making it more environment-friendly. Since law is the most effective regulator of social behaviour, it is widely applied in order to change social behaviour patterns in the use of the environment. STRATEGICAL CHARACTER OF RIGHTS AND RESPONSIBILITIES In general, environmental law is primarily rules of conduct in environmental legislation The law may set a binding framework, within which • economic, • technical, • informative, • educational and • other measures are often implemented for their environmental value.
Slide9931 The desired behaviour can be achieved with two kinds of methods, working as a ‘pie’ or a ‘whip’. These measures have to be such that the disadvantageous consequences of environ mentally unfriendly actions would inhibit people from these actions. The ‘whip’ strategy is most commonly used in the provisions that impose penalties or other coercive measures for non-compliance with environmental protection requirements. STRATHEGICAL METHODS FOR IMPLEMENTATION OF LAWS The ‘whip’ strategy, in contrast, provides for measures prevent Specific, environmentally harmful actions. The ‘pie’ strategy means that the law stimulates the implementation of environment-friendly behaviour in a way that compliance with environmental protection requirements is beneficial.
Slide10032 Unlike it is with other social norms, the compliance with legal provisions can be enforced by compulsion. Therefore, only the law has a specific implementation process – the legal provision. IMPLEMENTATION OF LAWS AND REGULATIONS implemented by specialised state or municipal environmental protection authorities adopted by the legislator Usually, environmental law drafts are developed by executive powers or politicians courts exercise control over the compliance with these laws
Slide10133 The coercion mechanism grants the state (the law enforcement bodies) the lawful right to apply coercive measures against the violators or non-observers of the law. The coercive measures themselves are established by the law, and they are quite different. Legal provision is a mechanism for ensuring the compliance with legal provisions or their fulfilment. LEGAL PROVISION In order to make this process work, the state has created relevant institutions (authorities) which have been granted a monopoly of coercion: specialised state environmental departments courts police prosecutor’s office
Slide10234 Although the law also provides for criminal liability for environmental legislation offences, in practice the environmental regulatory violations are classified primarily as less serious violations. The most common punishment for environmental violation is an administrative fine, whose amount is usually fixed by the law. The state has the right to monitor the compliance with environmental legislation. Such control can be exercised by state environmental inspectors. CONTROL OF THE COMPLIANCE WITH ENVIRONMENTAL LEGISLATION If non-conformities with the requirements of environmental legislation are found during inspections, state environmental inspectors may, for example: § issue binding injunctions (administrative acts) for temporary suspension of the company’s operations, § draw up statements of the cases for less grievous (administrative) violations, § impose statutory administrative penalties for these violations.
Slide10335 Although the environmental science and law are quite different areas, they are at the same time closely related. Regulation of social relations in such a way that human activity would not have any destructive environmental impact is possible only if both the legislature and general public have an understanding of the processes in the environment and their causes. LAW AND ENVIRONMENTAL SCIENCE Environmental science and environmental law each has its own specific tasks. Environmental science explains and forms understanding about the processes taking place in the natural environment, interaction going on among the elements of nature and between humans and the natural environment. The task of the law is to regulate social relations for the purpose of protecting and improving the environment and to solve the related disputes.
Slide10436 Regulating social relations, the law as such is silent on ethical issues LAW AND ENVIRONMENTAL ETHICS Answers to these questions should be sought in environmental ethics. Is it acceptable to degrade the natural environment and to consume a large part of the planet’s natural resources during one generation ? What kinds of actions in relation to nature should be regarded as good or bad ? What is the moral value of nature ?
Slide13137 Environmental law is based on two main conceptions of environmental ethics – anthropocentrism and ecocentrism. Contemporary environmental law is primarily anthropocentric ! CONCEPTIONS OF ENVIRONMENTAL ETHICS Ecocentric approach: the environment (nature) has an intrinsic value in itself; therefore, the human responsibility is to protect it without regard to the benefits humans could obtain from it, and to provide for the possibility to exist not only for humans but also for other living beings. Anthropocentric approach: the environment should be protected in the interests of human welfare – today’s environmental protection conserves environmental resources for future consumption.
Slide10538 Principles are often considered as an intermediate stage between environmental policy and environmental law. Environmental protection principles are guiding ideas on the basis of which the state develops its environmental policy. Compared with legal provisions as sufficiently clear rules of conduct, the environmental protection principles are more abstract. LEGAL PRINCIPLES OF ENVIRONMENTAL PROTECTION There are several environmental protection principles effective in the European legal space ‘polluter pays’ principle principle of high level of environmental protection principle of preventive action precautionary principle
Slide10639 The precautionary principle does not allow to start on an environment-affecting action until the information has been obtained as to how high a risk exists and what measures have to be taken to reduce it. The aim of the precautionary principle is not to permit certain actions only when the risk to the environment or human health is equated to zero, but to assess the magnitude of the risk and, in case of need, take the necessary measures. If the research process reveals a threat, the precautionary principle calls for precautionary measures, despite the fact that there is some uncertainty as to whether the risk is indeed real. PRECAUTIONARY PRINCIPLE Example Manufacturers and importers of chemical substances guarantee their product safe use, that is, prove that the substance is not hazardous. Now the European Union law has brought new binding requirements based on the precautionary principle – over 30 thousand existing and new chemical substances will have to be tested with regard to their effect on human health. It is no longer the country but manufacturers and importers of chemical substances who must obtain certain information on the properties of these substances and test them to determine their impact on the environment and humans.
Slide10740 The principle of preventive action requires to prevent pollution or other harmful impacts on the environment or human health as much as possible, or, if it is unfeasible, then at least to prevent further spreading of these harmful effects and their negative consequences. The principle of prevention combines two EU environmental protection principles – the principle of preventive action and the principle of causation. THE PRINCIPLE OF PREVENTIVE ACTION Example Waste should be processed and disposed of as close to its place of origination as possible (the proximity principle). Each state or local government should, as far as practicable, by itself treat and manage in an environmentally sound manner the waste generated at its territory (the self-sufficiency principle).
Slide10841 “The expected positive result for society as a whole” may be related to the implementation of economic interests, such as the construction of roads, dams, pipelines, nuclear power plants. The assessment principle prescribes: if the consequences of an action or project can significantly affect the environment or human health, they must be assessed before such an action or project is permitted (commenced). THE ASSESSMENT PRINCIPLE If it becomes evident after the assessment that the action or project in question will adversely affect the environment or human health, the government may allow it on condition that the expected positive result for society as a whole will exceed the harm that the respective action or project will have caused to the environment and society.
Slide10942 “The polluter pays” principle requires that the costs of assessment, prevention and mitigation of pollution as well as the costs of elimination of its effects are borne by the person whose activity has caused the pollution in question. To put ‘the polluter pays’ principle into effect, it is important to determine who is the polluter and for what the polluter must pay. Persons – individuals or companies – whose actions have caused harm to the environment, i.e., such detectable changes in the environment that are likely to have significant negative impacts on both human health and also the environment (e.g., waters, specially protected areas, species, habitats) are required to restore the previous state of the environment, covering the pollution removal and environment restoration costs. “THE POLLUTER PAYS” PRINCIPLE If the actual polluter does not exist anymore, and the contaminated site does not have another owner, the clean-up of the contaminated site has to be covered from the state budget.
Slide151Deepwater Horizon off-shore drilling rig on fire, Gulf of Mexico, 2010.
Slide11144 LEGAL REGULATION OF ENVIRONMENTAL PROTECTION To encompass all these and other factors, several approaches and measures are used in the legal regulation of environmental protection: 1) state exercises control over the polluting activities, 2) the ecosystem approach, 3) regulations for various state and local government decision-making processes. Environmental quality is affected by different factors: § pollution, § excessive deforestation, § land cultivation and unreasonable fertilisation, § use of substances or organisms foreign to the natural environment.
Slide13845 All three approaches are used in the normative regulation of environmental protection. However, going back to the beginnings of environmental laws, it is possible to trace their changes and developments over time. DEVELOPMENT OF THE APPROACHES Initially, environmental legislation was focused on controlling the pollution from industrial enterprises. - gathering and analysis of information, - planning and execution of measures, - making transparent planning process by involving the community. Then it became clear that other economic activities also degrade the environment. Therefore, the legislature began to set forth the objectives to be attained within specified periods of time and to require complex measures:
Slide15346 LEGAL REGULATION OF ENVIRONMENTAL PROTECTION LEGAL REGULATION INSTRUMENTS: Binding regulatory requirements – standards Voluntarily made commitments – self-regulation
Slide11247 There are several categories of standards: emission standards for the permissible pollution that can be released from the end-of-pipe of industrial facilities into the environment; the environmental quality standards for such environmental components as air, surface and ground water and soil; standards for different processes, requiring the use or abandonment of specific technologies, materials or practices. Binding regulatory requirements are also called standards. Often they are regarded as the core of environmental law, because they, as the means of ‘command and control’, directly set forth certain requirements (standards) for environment-polluting activities, substances and products, as well as for the implementation and application of environmental regulations. For example, there are requirements to use the ‘best available technologies’ or specific fishing gear and dragnets with specific mesh sizes in fishery. ENVIRONMENTAL LEGISLATION INSTRUMENTS
Slide15248 Another forms of self-regulation are: -environmental audit, which is carried out within the framework of the environmental management and audit system established by law; eco-labelling, which provide consumers with information on the environmental impact of products. Voluntarily made commitments (self-regulation). Self-regulation is rooted in the idea that enterprises voluntarily assume additional commitment for environ mental protection. In Europe, a transition to a new public management model took place in the 90s of the 20th century. In accordance with this model, public management takes over the management style typical to the private sector, i.e. it is aimed at economy and effciency. ENVIRONMENTAL LEGISLATION INSTRUMENTS
Slide15449 Ecoproduct by Latvia Scandinavian eco-label Nordic Swan – Scandinavian eco-label by Nordic Council European Union official eco-label Blue Angel – German environmental label ECO-LABELLING
Slide11850 Public pressure often expedites the drafting and adoption of laws. There are such legal provisions today, whose implementation is not even possible without public activities. A vivid example is the Aarhus Convention on public rights in environmental matters. Aarhus Convention deals with environmental protection in close relation with human rights. DIALOGUE WITH SOCIETY The authority of public opinion is crucial in environmental protection. Environmental laws can have the necessary support and effect only if the majority of society understands the importance of favourable environment for human life and the need to preserve the environment.
Slide11951 The Aarhus Convention is particularly significant, as it not so much prescribes mutual obligations for the participating countries than determines the basic principles how to form relations between the state and the public in the area of environmental protection, establishing an internationally recognised standard. The Aarhus Convention is based on the idea that if the public is active and well- informed, it can be a powerful force in sustainable and environment-friendly development. Therefore, the members of society are not required to provide reasons as to why they need any specific environmental information. Aarhus Convention Aarhus Convention guarantees the public (any of its member) the following individual rights: § the right to access environmental information at the disposal of the state; § the right to participate in environmental decision- making; § the right to apply to court in environmental matters.
Slide12552 The institution that takes the decision, in turn, has an obligation to take into account and evaluate these opinions and concerns. Furthermore, if the institution rejected the people’s protest against the proposed project, it is obliged to give reasons for such rejection. If these public rights are violated, everyone, including non-governmental organisations (environmental associations), is entitled to apply to court to protect the infringed public rights. Exercising their rights to participation, members of the public may express their opinions and concerns with regard to the proposed plans, projects or activities. PUBLIC RIGHT TO HAVE ENVIRONMENTAL INFORMATION The public has a right to participate: § in adopting environment-related decisions, § on issuing permits for polluting activities or construction of major infrastructure objects, § in the environmental impact assessment process.