How Environmental Law is Made and Implemented

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I recently came across an excellent summary of the way environmental law comes into being and is then implemented and enforced. It is from the book ClientEarth by James Thornton. I thought it would be worth sharing this.

The lifecycle of the law

Environmental laws have a lifecycle, like any organism. In this body of law, there are five phases.

It starts with the science.

I knew from climate scientists that if I could only do one thing for the climate, it should be to stop coal fired power stations. So stopping coal in Europe was a central focus of our work right from the start. In the area of toxics, testing regimes are important. In climate damages, the physics of climate attribution is vital; wildlife biology is fundamental to nature protection; and so on, throughout all of our work. The only exceptions are the purely procedural rules, but these too must be made to serve what the science directs us to.

The second phase is creating policy. A good example is our work on fisheries. When ClientEarth opened its doors, the European Union was revising its laws governing how fish are taken in EU waters. The biologists told us that unless the law changed radically, fish populations would crash. So our team created a new policy approach that would both protect fish and keep fishers in business in the long term. When I was starting, many Europeans told me that policy was a special realm too complex for mere lawyers to understand. From my perspective, it is just one of the domains that we work in to reach our goals.

The third phase is law making. To keep to the fisheries example, the team then took their vision and held it up against the proposed EU law. This let them see deficiencies in the proposal and gave ideas for improvement. There followed years of detailed work in the European Parliament in Brussels, supporting and helping draft a strong law.

The fourth phase is implementation. Here a law starts its life in the world. A government agency is responsible for making the law work, and for applying it to regulate some arena of life and business. The European chemicals law, for example, is designed to get carcinogenic and other dangerous chemicals out of commerce. Whether a law works or not depends on how it is implemented, and also on the final stage.

That final phase is enforcement. There will always be actors who violate a law. They may be private citizens, businesses, or governments. Every law needs to be enforced. If you pass a law and do not enforce it, you in effect authorise the behaviour you sought to prohibit. My experience in the US of bringing scores of successful enforcement cases led me to launch our EU enforcement effort.

Each of these stages is critical to creating a law and making it work. Until ClientEarth, no European NGO worked at all stages in the lifecycle of the environmental laws. Because we do, the work has great power. This is a key reason that the work of ClientEarth adds such value to the European environmental movement as a whole and why we  [Client Earth] can add value in China and Africa.