Environmental Law Review

This opinion reflects on the achievements of and barriers to implementing the Mersey Forest Plan, over the past 25 years. The implementation of the initiative, which operates in a non-statutory arena, is shaped by different pieces of legislation that concern for example, wildlife, contaminated land, landscape, planning and trees, woods and forestry, to name but a few. This opinion argues that the Mersey Forest has been successful and delivered public good (social, economic and environmental benefits) in a number of different areas. It has had to weather the changes to government policy as well as trying to influence it in order to maintain support; and that the initiative it is as important now as it was 25 years ago. It also stresses that the challenges it faces, for example, the ebb and flow of support (whether financial, legislative change, policy and people), that have assisted with the delivery of the plan are likely to continue post-Brexit. Looking forward, it suggests that it may be helpful if some sociolegal research were undertaken which looked at the various pieces of legislation that shape the Mersey Forest’s delivery landscape to see the extent to which it has helped or hindered the delivery of the concept, and to consider what, if any, pieces of existing or new legislation need to be changed to help deliver the concept more effectively.

Along with the adoption of environmental public interest litigation (EPIL) in China, the configuration among civil society, administrative, procuratorial and judicial powers is reshaped and transformed. With various actors brought to the public interest ground, the conventional role of governments as a public interest defender through law enforcement activities is distorted. This, on the one hand, spurs and supplements insufficient government enforcement of environmental law, and on the other hand poses the danger of supplanting government enforcement, crowding out statutory responsibilities for governments and eroding their discretion in selecting regulatory tools and administrative procedures. To reach a balance making no power excessively intruding the other and bring PIL’s potential into full play, realignment of their respective roles and functions in the enforcement system is imperative. Government enforcement should be strengthened and given priority in vindicating environmental public interests. Pre-conditions for filing different types of EPIL claims should be established and specified. To develop an internally coordinated EPIL system, the future reforms should be legally underpinned with the order of standing coordinated, concurrent claims screened, connection arrangements established and the usage of incidental litigation promoted.

The precautionary principle is accepted in India as a fundamental tool to promote sustainable development and is employed within Indian environmental governance to promote better health and environmental decisions. Scientific uncertainty is at the core of the precautionary principle. The application of the precautionary principle is an open-ended issue. This article seeks to add to the limited empirical studies on the understanding, appreciation and application of the precautionary principle by key environmental actors, as differing legal responses and decisions may be irreversible before conclusive scientific knowledge and evidence become available. Building on researcher’s unique Indian data, and drawing on the theoretical insights developed by Charles Weiss, an explanatory environmental framework addresses the uncertainty of science by assembling a scale of legal standards arranged in a hierarchy of levels of increasing certainty familiar to lawyers and the judiciary. Reported Indian cases from the Supreme Court and the National Green Tribunal are selected to illustrate levels of scientific certainty or uncertainty and corresponding legal standards of proof constituting acceptable bases for legal decisions in practical context especially the precautionary principle. The article suggests India should develop a framework of guidelines that would provide an effective roadmap for decision-makers applying the precautionary principle.

As a consequence of increased pressure on environment in Europe and beyond, the extent and variety of forms of environmental damage has broadened widely over the last decades. One key way to tackle this problem is, evidently, to ensure that damage that arise is properly repaired. Whilst provisions to secure environmental liability have been implemented in the EU context through the Environmental Liability Directive, the effectiveness of this Directive is still limited. In France, in order to surpass current impasses, the 2016 Biodiversity Law was recently enacted (adopted on August 8th, 2016), which creates a specific regime in French civil law for remedying ecological damage (defined as damage caused to nature itself). Three years after the introduction of France’s new approach to ecological damage, the present article reflects on the legal innovations and challenges of the reform, and explains how the new regime proceeds to remedy ecological damage. A key challenge here, as will be discussed, is that nature as such has not been recognised as having legal personality under the French legal system, which has traditionally been a key hurdle for securing compensation for environmental loss in the first place under tort law.