Environmental Law 2019 Second Edition

Environmental Law 2019 Second Edition provides comprehensive coverage, across 15 jurisdictions, including regulatory framework, liability, enforcement, disclosure and climate change.

Last Updated: November 15, 2019

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McMahon DeGulis LLP was founded in 1994, and is the largest law firm in Ohio to concentrate its practice exclusively on environmental law. MD offers a value-driven alternative to large firm environmental law departments by providing experienced legal representation in environmental law, energy, toxic torts and litigation. Specific areas of focus include environmental contamination and remediation strategies, regulatory counselling and permitting, enforcement defence, transactional support, environmental management systems, compliance auditing and litigation. On the private sector side, clients range from Fortune 500 companies to small businesses; on the public sector side, the firm represents state, regional, and local governments as well as other institutions such as port authorities.


This introduction considers some of the main trends and themes in international environmental law and how these might influence its future development. 

In 2019, the United Nations released the Environmental Rule of Law First Global Report assessing the current status of global environmental regulations. The UN Intergovernmental Panel on Climate Change continued to issue updated reports on climate change. Despite a significant increase in environmental laws enacted globally since 1972, failure to fully implement and enforce these laws is one of the greatest challenges to mitigating climate change, reducing pollution and preventing widespread species and habitat loss, the UN environment report found. 

The 200-plus-page report details the many developments in environmental law through the last 48 years, including the adoption of a constitutional right to a healthy environment by 88 countries, with another 65 countries having enshrined environmental protection in their constitutions. In addition, more than 350 environmental courts and tribunals have been established in 50-plus countries, and more than 60 countries have at least some legal provisions for citizens’ right to environmental information.

Contemporary environmental problems are predominantly global in their cumulative consequences. Increased demand and decreased supply, traditional transboundary issues of water management and air pollution, and a continued decline in biodiversity have an enormous impact on our highly interdependent world economy and remain the principal drivers of global environmental policy and regulation.

The future of international environmental law will be framed by the complexity of the interlinked environmental, social and economic challenges now confronting decision-makers.

Climate Change

Climate change continues to dominate global conversations on the environment and will continue to drive policy and regulations. The non-binding 2015 Paris Accord, building on the 1997 Kyoto Protocol and agreed to by almost 200 countries, proposed to substantially reduce global greenhouse gas emissions in an effort to limit the global temperature increase in this century to 2°C above preindustrial levels, while also pursuing means to limit the increase to 1.5°C.

A flurry of regulations and preparations have been put in place, with more to come. China pledged to stop increasing its emissions by 2030 and announced in 2019 that it had already met 2020 goals. Germany has proposed several new climate policies including carbon prices for economic sectors, transportation and buildings. The UK has instituted a carbon floor and Canada implemented the Greenhouse Gas Pollution Pricing Act. South Korea’s domestic emissions trading scheme was established in 2015. 

The USA formally withdrew from the agreement, but several US cities and states continue to work toward carbon reduction which exemplifies the trend of decentralisation of environmental regulations. Successes have been achieved largely by focusing on individual sectors and applying a small number of policy instruments.

Efforts to reduce carbon emissions will also drive development of renewable technologies. Market shifts continue to favour lower-carbon products and services. However, the main driver of fossil fuel consumption and reduction is energy security and independence.

Availability of Clean Water

The single largest issue beyond climate change is the scarcity of clean water. Ageing water infrastructure systems across the globe, over-exploitation of water resources and insufficient access to safe drinking water are critical issues faced by developed and developing nations alike. In 2018, Cape Town in South Africa experienced one of the worst-ever drought-induced municipal water crises. The crisis was averted in part by new water-use tariffs and water-use restrictions in domestic, commercial and industrial sectors.

Water availability is also a major economic driver as corporations consider potential constraints on new locations due to water scarcity, possible operational and supply chain disruptions, and increasing costs of water. New markets will also develop for water-efficient technologies and desalination products.

In July 2010, the UN General Assembly explicitly recognised a human right to clean drinking water and sanitation. In some respects, this has begun to shift the perception of environmental law to more directly address environmental impacts on people rather than corporations or the environment itself.

Pollution Reduction

Ongoing reduction of pollution is a constant theme in environmental law internationally. New International Maritime Organization (IMO) restrictions on sulphur levels in fuel are set to take effect on 1 January 2020. IMO 2020 regulations will see the largest reduction in the sulphur content of a transportation fuel undertaken at one time, resulting in a significant cost to the transportation industry.

Biodiversity

The loss of biodiversity and the degradation of the ecosystem is seen as an increasingly significant issue internationally. Natural resource depletion and adverse impacts of environmental degradation, including desertification, drought, land degradation, freshwater scarcity and loss of biodiversity, add to and exacerbate the list of challenges which humanity faces. A report released in May 2019 by the UN Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) painted a dramatic picture of the rapid decline of ecosystems globally. Commenting on the report, the IPBES chair, Sir Robert Wilson, stated: "The health of ecosystems on which we and all other species depend is deteriorating more rapidly than ever. We are eroding the very foundations of our economies, livelihoods, food security, health and quality of life worldwide."

The loss of biodiversity and ecosystem exacerbates and amplifies other environmental risks. For example, the removal of key coastal ecosystems often increases the severity of coastal flooding, ecosystem degradation has been a key driver of desertification, and food security is highly dependent on biologically diverse soils and other key ecosystem services such as water regulation, pollination and climatic stability.

The UN 2030 Agenda for Sustainable Development provides for the cessation of biodiversity loss as a measurable goal. Specifically, to take urgent and significant action to reduce the degradation of natural habitats, halt the loss of biodiversity and, by 2020, protect and prevent the extinction of threatened species. This also includes provisions to protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification, and halt and reverse land degradation.

Increased market, reputational, and regulatory pressure to reduce biodiversity presents both business risks and opportunities. There are physical risks to business arising from scarcity and increased costs of resources and potentially reduced productivity. Companies may also face increased litigation risks as a result of their exploitation of biological resources or their adverse impacts on ecosystems.

Author



McMahon DeGulis LLP was founded in 1994, and is the largest law firm in Ohio to concentrate its practice exclusively on environmental law. MD offers a value-driven alternative to large firm environmental law departments by providing experienced legal representation in environmental law, energy, toxic torts and litigation. Specific areas of focus include environmental contamination and remediation strategies, regulatory counselling and permitting, enforcement defence, transactional support, environmental management systems, compliance auditing and litigation. On the private sector side, clients range from Fortune 500 companies to small businesses; on the public sector side, the firm represents state, regional, and local governments as well as other institutions such as port authorities.