Brodies Environmental Law Lecture

Brodies Environmental Law Lecture Date: 11 March 2023 Citizens / Constitutions - Constitutional citizenship: often cited and rarely fully articulated • The conditions on which national citizenship is conferred, withheld or revoked are integral to the identity of the nation State. They touch the constitution; for they identify the constitution's participants. Lord Justice Laws in G1 - Why study them together? - How to study them together? - Interpretation: involves choices e.g. about normative questions Modi and Trump: Jason Stanley in The Guardian - There is more to fascism than changing citizenship laws. Fascist movements seek oneparty rule: over the courts, the police, the military and the press. They involve a cult of loyalty to a single leader and nostalgia for a mythic past when the nation was dominated by the privileged group. But the core of fascist ideology is realized in changing citizenship laws to privilege a single ethnic group. This is why we regard the Nuremberg Laws as a defining moment in German history, and the concentration camp as the defining Nazi institution. - History has been rightly horrified by the Nuremberg Laws and their consequences. Why, then, are so many countries going down this path? The future of constitutional citizenship - We're at a populist moment where we should be vigilant - Risks of an erosion of the ideal of citizenship as based on equality and self-rule - Decline or continuation of fragmented governance for citizenship - Impact of the pandemic on constitutional citizenship: is it too early to tell? 'Principles, Principles, Everywhere' - Soft law proliferation • Rio Declaration an influential 'statement of principles' • Draft Global Pact for the Environment 2017 - TFEU, articles 11, 191(1); EU Charter, article 37 - National legislation - Judgments in different jurisdictions • - Including cross-referring between judgments involving principles Environmental law scholarship Why so Popular in Environmental Law? - Environmental policy reasons • Entrench environmental policy vision through legal structures (or, more hopefully, ensure environmental outcomes through normative force) • - Legal link between ideal environmental outcomes and concrete legal rules Environmental law reasons • Pragmatism • Seeking to explain, legitimize, rationalize, revolutionize the subject • Overcoming methodological difficulties of the subject Environmental Principles as Legal Ideas - Some general characteristics that resonate across different legal and policy contexts • Totemic and systemic (symbolic and integrating function) • Policy ideas that are given some legal force or legal status (entrenchment function) • - Conceptual plurality as between different principles Contextual crystallization defines principles as legal ideas Environmental Principles in EU Law - Art 191(2) TFEU • Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay. - Article 11 • Environmental protection requirements must be integrated into the definition and implementation of the Union's policies and activities, in particular with a view to promoting sustainable development. EU Environmental Principles: Legal Implications - (30) • In order to implement the precautionary principle and the principle of preventive action enshrined in Article 174(2) of the Treaty, it is necessary to set general environmental objectives for the management of waste within the Community. By virtue of those principles, it is for the Community and the Member States to establish a framework to prevent, reduce and, in so far as is possible, eliminate from the outset the sources of pollution or nuisance by adopting measures whereby recognized risks are eliminated. EU Environmental Principles: CJEU reasoning - Interpretive aids for legislation and other legal rules • - Structure administrative discretion • - Inform different regulatory areas with marginal meanings Role in informing and generating tests of judicial review All within EU constitutional bounds Environmental Principles in UK Law - Deep common law skepticism of policy ideas in legal form - UK 'implementation' of legal impact of EU environmental principles has been derivative - Despite this, we are now faced with 'retaining' the legal force of EU environmental principles in UK law - Emerging key issues • Appropriate list of principles? Distinguishing principles from rights? • How to frame principles in legislation? (duties or other obligations, how much on the face of primary legislation, link by an overarching objective, links to other legislation) • Who is bound by principles? (Ministers, public bodies) • What do they apply to? (all/some policymaking, all/some decision- making) • Are these the right questions to be asking? Conclusions - Post-exit UK presents new legal contexts for environmental principles - Relegating environmental principles to the policy domain reflects UK legal culture but will lose something of our EU environmental law heritage - Current proposals buck the global trend of systemic, integrating environmental principles entrenched in law - Ultimately, what is our (UK/English/Scottish/Welsh/NI) vision post-exit environmental protection?