than imposed upon society at large.” All issues related to responsibility for cost for environmental remediation and compliance with pollution control regulations involve this principle.
2.11 Theory/Environmental Law Debate
Environmental law is a continuing source of controversy. Debates over the necessity, fairness, and cost of environmental regulation are ongoing, as well as regarding the appropriateness of regulations vs. market solutions to achieve even agreed‐upon ends.
Allegations of scientific uncertainty fuel the ongoing debate over greenhouse gas regulation and are a major factor in debates over whether to ban particular pesticides. In cases where the science is well‐settled, it is not unusual to find that corporations intentionally hide or distort the facts, or sow confusion (Oreskes and Conway 2010).
It is very common for regulated industry to argue against environmental regulation on the basis of cost (Pizer and Kopp 2003). Difficulties arise in performing cost‐benefit analysis of environmental issues. It is difficult to quantify the value of an environmental value such as a healthy ecosystem, clean air, or species diversity. Many environmentalists' response to pitting economy vs. ecology is summed up by former Senator and founder of Earth Day Gaylord Nelson: “The economy is a wholly owned subsidiary of the environment, not the other way around” (Nelson et al. 2002). Furthermore, environmental issues are seen by many as having an ethical or moral dimension, which would transcend financial cost. Even so, there are some efforts underway to systemically recognize environmental costs and assets, and account for them properly in economic terms.
While affected industries spark controversy in fighting regulation, there are also many environmentalists and public interest groups who believe that current regulations are inadequate, and advocate for stronger protection (Hiss 2014; Stein and Beckel 2004). Environmental law conferences – such as the annual Public Interest Environmental Law Conference in Eugene, Oregon – typically have this focus, also connecting environmental law with class, race, and other issues.
An additional debate is to what extent environmental laws are fair to all regulated parties. For instance, researchers Preston Teeter and Jorgen Sandberg highlight how smaller organizations can often incur disproportionately larger costs as a result of environmental regulations, which can ultimately create an additional barrier to entry for new firms, thus stifling competition and innovation (Teeter and Sandberg 2017).
2.11.1 Environmental Impact Statement and NEPA Process
An environmental impact statement (EIS), under US environmental law, is a document required by the National Environmental Policy Act (NEPA) for certain actions “significantly affecting the quality of the human environment” (NEPA 1969). An EIS is a tool for decision making. It describes the positive and negative environmental effects of a proposed action, and it usually also lists one or more alternative actions that may be chosen instead of the action described in the EIS. Several US state governments require that a document similar to an EIS be submitted to the state for certain actions.
2.11.2 Purpose of NEPA
The purpose of the NEPA is to promote informed decision making by federal agencies by making “detailed information concerning significant environmental impacts” available to both agency leaders and the public (Robertson v. Methow Valley Citizens Council 1989). The NEPA was the first piece of legislation that created a comprehensive method to assess potential and existing environmental risks at once. It also encourages communication and cooperation between all the actors involved in environmental decisions, including government officials, private businesses, and citizens (Felleman 2013).
In particular, an EIS acts as an enforcement mechanism to ensure that the federal government adheres to the goals and policies outlined in the NEPA. An EIS should be created in a timely manner as soon as the agency is planning development or is presented with a proposal for development. The statement should use an interdisciplinary approach so that it accurately assesses both the physical and social impacts of the proposed development (EIS 2010). In many instances an action may be deemed subject to NEPA's EIS requirement even though the action is not specifically sponsored by a federal agency. These factors may include actions that receive federal funding, federal licensing, or authorization, or that are subject to federal control (Eccleston 2008).
An EIS typically has four sections (Eccleston 2014):
1 An introduction including a statement of the purpose and need of the proposed action.
2 A description of the affected environment.
3 A range of alternatives to the proposed action. Alternatives are considered the “heart” of the EIS.An analysis of the environmental impacts of each of the possible alternatives. This section covers topics such as the following:Impacts to threatened or endangered speciesAir and water quality impactsImpacts to historic and cultural sites, particularly sites of significant importance to indigenous peoples.Social and economic impacts to local communities, often including consideration of attributes such as impacts to available housing stock, economic impacts to businesses, property values, aesthetics, and noise within the affected area.Cost analysis for each alternative, including costs to mitigate expected impacts, to determine if the proposed action is a prudent use of taxpayer dollars.
2.12 International Law
It is well known that the United Nations Conference in Stockholm on the human environment is a landmark milestone at the international arena for the protection of the deteriorating environment. The conference laid emphasis on the need that man's capabilities to transform his surroundings must be wisely used. Wrong and unwise use can do incalculable harm to human beings and the human environment. It was suggested by the Conference that developing countries must direct their efforts toward balancing their priorities with the need to check increasing population. Moreover, the conference identified the areas and laid down the principles on which the nations should take up and enact laws for protecting environment. These principles have been incorporated in the Stockholm Declaration (British Institute of International and Comparative Environmental Law 1992; Caldwell 1996; Koivurova 2014; Muralikrishna and Manickam 2017). In this process, there are national and international dimensions of environmental law.
Global and regional environmental issues are increasingly the subject of international law. Debates over environmental concerns implicate core principles of international law and have been the subject of numerous international agreements and declarations (see Appendix B).
Customary international law is an important source of international environmental law. These are the norms and rules that countries follow as a matter of custom and they are so prevalent that they bind all states in the world. When a principle becomes customary law is not clear cut and many arguments are put forward by states not wishing to be bound. Examples of customary international law relevant to the environment include the duty to warn other states promptly about icons of an environmental nature and environmental damages to which another state or states may be exposed, and Principle 21 of the Stockholm Declaration.
Numerous legally binding international agreements encompass a wide variety of issue areas, from terrestrial, marine, and atmospheric pollution through to wildlife and biodiversity protection. International environmental agreements are generally multilateral (or sometimes bilateral) treaties (a.k.a. convention, agreement, protocol, etc.). Protocols are subsidiary agreements built from a primary treaty. They exist in many areas of international law but are especially useful in the environmental field, where they may be used to regularly incorporate recent scientific knowledge. They also permit countries to reach agreement on a framework that would be contentious if every detail were to be agreed upon in advance. The most widely known protocol in international environmental law is
