Chapter IV
STANDARDISATION AND LEGISLATION IN THE FIELD OF ENVIRONMENTAL MONITORING AND CONTROL
IV.1. AN INTRODUCTION TO INTERNATIONAL ENVIRONMENTAL CONTROLS
Mihaela BADEA, Giuseppe PALLESCHI
The last four decades have brought a number of environmental issues to the forefront worldwide. These issues have been addressed, both generally and specifically, through a series of treaties and agreements between nations. In its 1992 report on world resources, the World Resources Institute (WRI) observed that two main indications of any country’s commitment to environmental protection are (1) whether it collects and disseminates environmental information effectively, and (2) its participation in relevant international agreements.
Before any agreement can occur, there must be an understanding of the environment. For instance, the collection and distribution of environmental information in various countries and regions has been a priority of the United Nations.
IV.1.1. AN OVERVIEW OF INTERNATIONAL CONVENTIONS AND AGREEMENTS
Numerous international treaties and agreements exist. For example, in 1991, the U.S. International Trade Commission had identified 170 multilateral and bilateral agreements for the protection of the environment and wildlife (Kennedy 1994). Most of these agreements dated from the 1970s.
Below, there are listed some examples of important conventions and agreements which were put forth to protect wildlife, wildlife habitat, oceans, atmosphere and hazardous substances:
- The Antarctic Treaty and Convention was held in 1959. It provided assurance that Antarctica would be used only for peaceful purposes, primarily co-operative and inter-national scientific research. In 1980, the Convention on the Conservation of Antarctic Marine Living Resources amended the original agreement. The amendment was to safeguard the environment, retain the integrity of the ecosystem in the adjacent seas, and conserve the marine living resources.
- The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (MARPOL), in 1972, provided for controls on ocean dumping of certain materials (either through prohibition or regulation). It also established a mechanism for assessing liability and settling disputes.
- A 1973 convention to eliminate international pollution resulting from oil and other harmful substances was modified with the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships to minimise accidental discharge.
- The 1982 United Nations Convention on the Law of the Sea established a comprehensive legal regime for the seas and oceans. It established rules for environmental standards and enforcement provisions and developed international rules and legislation to prevent and control marine pollution.
- In 1972, the Convention on the Prohibition of the Development, Production, and Stock-piling of Bacteriological (Biological) and Toxin Weapons, and on Their Destruction prohibited the acquisition and retention of biological agents and toxins that are not justified for peaceful purposes. It also prohibited the means for delivering these agents and toxins for hostile purposes or armed conflict.
- The Vienna Convention for the Protection of the Ozone Layer was held in 1985. It launched an effort to conduct research on the earth’s ozone layer to determine the adverse effects from chemical substances, primarily chlorofluorocarbons. As part of this research, the ozone layer would be monitored, alternative substances and technologies would be studied, and measures would be taken to control activities that produce adverse effects.
- The Vienna Convention was followed in 1987 by the Protocol on Substances that Deplete the Ozone Layer (known as “the Montreal Protocol”). The Montreal Protocol required nations to (1) cut consumption of five chlorofluorocarbons and three halons by 20 percent of their 1986 level by 1994, and (2) by 50 percent of their 1986 level by 1999. Allowances were made for increases in consumption by developing countries.
- In 1989, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal set forth controls to reduce transboundary movement of wastes. Participating countries were obligated to minimise the amount and toxicity of hazardous wastes generated, ensure the sound management of these wastes, and assist developing countries in the sound management of their hazardous wastes.
Also, conventions and agreements that have addressed region-specific environmental issues have been set-up. The two most significant documents produced through international conventions are the 1972 Stockholm Declaration on the Human Environment and the 1992 Rio Declaration on Environment and Development. According to the Harvard Environmental Law Review, regarding primarily the environmental protection.
IV.1.2. THE RELATIONSHIP BETWEEN INTERNATIONAL TRADE AND ENVIRONMENTAL CONTROLS
Trade is a prominent issue in many of the aforementioned conventions and agreements. It is even featured in the title of some conventions. Many of the environmental standards being promulgated today (such as ISO 14000) are intended to protect the environment while removing trade barriers. Trade has also been used as a hammer.
However, controls have not always been mentioned in the same breath, much less aligned. The laws that govern both international trade and international environmental have proceeded on separate but parallel tracts over the years—even though the issues are related.
Thus, there is a greater need to “integrate” both trade law and environmental law, since the two are not mutually exclusive. Market approach alone has not proven entirely effective because industries cannot count on their competitors in other countries to voluntarily act environ-mentally responsible, nor have unilateral trade sanctions proven to be reliable at effecting change. Thus, there seems to be a need for some level of environmental regulatory standards to which most of the international community can commit and meet. This, obviously, is the main goal for international environmental controls.
In addition to the various conventions and agreements, one environmental law passed in the United States has had an important influence on the environmental controls of other nations - the National Environmental Policy Act (NEPA). What makes this law adaptable in other nations is that it is, above all, a process.
The United States’ National Environmental Policy Act of 1969 was one of the first environmental statutes. NEPA set a precedent in that it considered the environmental impacts of the proposed actions and projects of the federal government. The intent of the law was to promote better decision making. NEPA set up a process wherein significant impacts to natural resources, wildlife, and social entities would be considered while a project or action was being planned. As part of this process, the public was allowed to express its concerns about the proposal. Unlike most other U.S. environmental regulations, NEPA does not set quantity levels or treatment standards that must be met. Rather, because it is a process, it outlines procedures to be followed so that potential environmental problems are avoided or addressed. However, the law does not state what must be done about the problems. That is ultimately determined from the study, the public input, and by the project’s proponent.
Two main levels of study are specified by NEPA- the Environmental Assessment and the Environmental Impact Assessment. The Environmental Assessment (EA) is primarily an initial study used to determine whether an Environmental Impact Assessment (EIS) is required. The EA is similar in format to an EIS, although less detailed. The information gathered and analysed for an EA study may result in either (1) a decision to prepare a more detailed EIS, or (2) a decision to issue a Finding of No Significant Impact. A Finding of No Significant Impact (FONSI) means that a project or action may begin without further study. When an EIS is determined to be necessary, a more comprehensive study is made.
NEPA requires that the EIS include a discussion of the following: (1) the purpose and need for the action; (2) the proposed action; (3) alternatives to the action (including “no action”); (4) the affected environment; (5) the environmental consequences; and (6) information and opinions garnered from public comments. Depending upon the size of the project or action, its potential environmental effects, or public concern, an EIS may range from about 30 pages to several volumes. The procedures give NEPA this flexibility.
Nevertheless, the EIA process has seen a prolific acceptance worldwide. North Atlantic Treaty Organization (NATO) undertook to explain how to use the EIA procedures to its member nations.
The following nine organizations currently having international EIA provisions:
- the European Economic Community Directive;
- the Association of South East Asian Nations;
- the United Nations Economic Commission for Europe;
- the United Nations Environment Programme;
- the United Nations Environment Programme Regional Seas Conventions;
- the Organization for Economic Co-operations and Development;
- the World Bank;
- the United Nations General Assembly;
- the United Nations Law of the Sea.
IV.1.3. THE EUROPEAN UNION ENVIRONMENTAL PROGRAMMES
The European Union (EU) is a community of twenty-five countries and 450 millions citizens, after the enlargement done in 2004. The EU was originally an economic association (European Community) formed in 1958 (Treaty of Rome) with six member states. Component organizations date back to 1951. On November 1, 1993, with the Treaty of the European Union (Maastrict, The Netherlands), the EC became the European Union (EU).
Organizational Structure of the EU:
- European Parliament Council of the European Union
- Commission of the European Union
- The Council of Ministers
- European Court of Justice
- Court of Auditors
- Economic and Social Committee
- Committee of the Regions
The EU directives create a consistent set of requirements that must be adopted into national law for all EU member states. The organisation of these member countries into an association with common economic, social, and political issues has eliminated restrictions to the free movement of goods, services, capital, workers, and tourists.
There are three types of directives, including framework directives, daughter directives, and specific directives. Framework directives provide the general principles or goals of a directive and daughter directives are more specific and address a particular issue of the framework directive. For example, the directive relating to water pollution control has numerous daughter directives Regulations may also be implemented and are applicable in member states without the State taking action (directly applicable). States must adopt national legislation to implement the provisions of a directive. However, directives are directly effective, which means even if a member state does not develop national legislation or does not meet the deadlines for implementation, the directive is still considered applicable.
Member states must consider the following when implementing directives:
- National laws already in place
- Effective dates for the directive
- Doctrine of direct effect
- Adequacy of national laws
- State authority for implementation
Other legislative acts of the EU include Council Decisions, which are binding decisions, and Council Recommendations and Opinions, which are non binding and serve to motivate member states to take action such as adopt certain provisions.
The European Community has been strongly criticised for putting trade and economic development before environmental considerations. It is now recognised that the European model of development cannot be based on the depletion of natural resources and the deterioration of our environment. Environmental action by the Community began in 1972 with four successive action programmes, based on a vertical and sectoral approach to ecological problems. During this period, the Community adopted some 200 pieces of legislation, chiefly concerned with limiting pollution by introducing minimum standards, notably for waste management, water pollution and air pollution.
The introduction of this legislative framework, however, could not of itself prevent deterioration of the environment, and with the growth in public awareness of the risks posed by global environmental problems it has become clear that concerted action at European and international levels is absolutely essential.
Community action developed over the years until the Treaty on European Union conferred on it the status of a policy. A further step was taken with the Treaty of the Amsterdam, which enshrines the principle of sustainable development as one of the European Community's aims and makes a high degree of environmental protection one of its absolute priorities.
To set about achieving this as effectively as possible, the Fifth Community Action Programme on the Environment "Towards Sustainability" established the principles of a European strategy of voluntary action for the period 1992-2000 and marked the beginning of a "horizontal" Community approach which would take account of all the causes of pollution (industry, energy, tourism, transport, agriculture, etc.).
This across-the-board approach to environmental policy was confirmed by the Commission in the wake of its 1998 Communication on integrating the environment into European Union policies and by the Vienna European Council (11 and 12 December 1998). The Community institutions are now obliged to take account of environmental considerations in all their other policies. Since then, this obligation has been taken into account in various Community acts, particularly in the fields of employment, energy, agriculture, development co-operation, single market, industry, fisheries, economic policy and transport.
The sixth action programme for the environment, sets out the priorities for the European Community up to 2010. Four areas are highlighted: climate change, nature and biodiversity, environment and health and the management of natural resources and waste. Measures to achieve these priorities are outlined: improving the application of environmental legislation, working together with the market and citizens and ensuring that other Community policies take greater account of environmental considerations. An innovation worth mentioning is the integrated product policy. This aims to develop a more ecological product market by making products more environmentally sustainable throughout their life cycle.
Instruments and Application
The range of environmental instruments available has expanded as environmental policy has developed. Not only has the Community adopted framework legislation providing for a high level of environmental protection while guaranteeing the operation of the internal market, but it has introduced a financial instrument (the LIFE programme) and technical instruments: eco-labelling, the Community system of environmental management and auditing, system for assessment of the effects of public and private projects on the environment and the criteria applicable to environmental inspections in the Member States.