Global Environmental Law Practice

Vol. 29 No. 1

Mr. Briggs is a solicitor and partner at Ashurst LLP, Brisbane, Australia. Mr. Waite is a solicitor and consultant at Ashurst LLP, London, United Kingdom, and is a member of the editorial board of Natural Resources & Environment.

The world has become a smaller place. Individuals and businesses, particularly the larger ones, interact with other parts of the world in ways unparalleled a few decades ago.

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This globalism has led in recent years to a new kind of legal practice: global or transnational law, comprising common legal principles drawn from national and international regulatory systems. Nowhere is this more necessary and apparent than in the field of environmental law. Environmental lawyers, although nurtured in their home jurisdictions, need at least an acquaintance with the equivalent rules, procedures, and practices in other jurisdictions, as well as familiarity with international environmental law. Global environmental law provides the common currency in which environmental lawyers from different jurisdictions can deal with each other and understand the environmental issues, requirements, and solutions faced by other countries and by the industries and people who work in them.

Three trends have contributed to this development in environmental law. First, there is a realisation that the environment is not just a local or even a national issue. The world is a single environment. What we do in one country affects the environment in other states. This is true not only in the case of greenhouse gas emissions, which alter the global climate in ways we do not yet fully understand. But poor waste management (illegal transfrontier shipment), water pollution, air pollution, export of chemicals, and import of endangered species can all impact adversely the environment in other parts of the world.

Secondly, although there remain marked differences between legal systems around the world, we face common problems. This has led to a convergence in legal approaches to these problems. The diversity of legal cultures has not hindered the process of learning from the experience of other jurisdictions and even the transplantation of regimes. Chinese environmental lawyers responsible for drafting China’s new contaminated land regime consulted their counterparts from many jurisdictions to learn how other systems dealt with this problem before embarking on their task. The US invention of environmental impact assessment is now widely used around the world. The regulation of chemicals in Canada in the 1990s was taken further by the European Union’s extensive REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals) Regulation of 2006. Meanwhile in 2003, China introduced regulations requiring registration and toxicity testing of new chemical substances. Similar rules have been adopted in Japan and South Korea.

In parallel with this process of borrowing or transplantation, there has been a significant trend to “upload” the experience of national legal systems into international conventions and agreements and in turn to “download” them into many national regimes.

Thirdly, the power of corporations with a global reach (including banks applying the Equator Principles) has encouraged the adoption of higher and uniform environmental standards around the world. This is not only to avoid the adverse publicity and sometimes litigation resulting from environmental and human exploitation in developing countries whose basic economic needs are not matched by their environmental governance systems. Many large companies have found that it is more efficient to operate according to the same environmental standards irrespective of where their manufacturing plants are located and it may give them a welcome competitive edge if the bar is also raised for their rivals.

The commonality of legal principles, rules, and regulatory tools and approaches resulting from these influences has created a global environmental law that not only enriches international conferences on comparative environmental law, but provides a platform for practising environmental lawyers to address the problems of their clients who operate around the world.

However, this development does not imply that the rich diversity of legal cultures can safely be ignored. On the contrary, any successful transplantation of a regulatory regime has to ensure compatibility with the local legal system as well as the administrative and physical infrastructures and the enforcement culture. An English environmental lawyer visiting an African country to draft new sewage disposal legislation was shown the existing legislation (drafted by an earlier visiting team), which contained very precise requirements for the construction and maintenance of sewers. In reply to his question, why the existing regulations needed to be changed, he was told that it was impossible to implement the regulations because there were no sewers in that country!

For the same reasons, lawyers who have to advise on environmental issues relating to other jurisdictions need to be aware of the differences between the law in the books and the law in practice. It is necessary to understand the legal system of which the environmental legislation forms part as well as the practices of the enforcement authorities and the approach of the courts. In other words, local knowledge or access to local knowledge is essential.

Two examples will suffice. First, contrary to the position in many jurisdictions, in China polluters carry the burden of proving that they have not caused harm to neighbors. Second, Indian courts have used judicial review to deal with the perceived failure by the regulatory authorities to enforce the law. In the rising tide of public interest litigation courts have effectively taken over the role of those authorities in particular cases. In doing so, the courts have developed revolutionary procedural innovations, including: (1) transforming letters from aggrieved citizens into petitions for writs, and (2) adopting suo motu (on its own initiative) jurisdiction without any request by a litigant.

Some judges in Pakistan have also adopted suo motu jurisdiction. One judge, after reading about the disposal of chemical waste off the coast of Balochistan in the mid-1990s, persuaded his judicial colleagues to issue an injunction forbidding the practice. In another case in 2006, the chief justice, after reading letters in a newspaper, issued an order preventing the continuance of a road expansion project.

It is important to keep abreast of these differences as well as the similarities in laws and practices around the world. Some law firms can achieve this through their global reach via local offices in many parts of the world. However, few have expert environmental lawyers in all jurisdictions, so it is necessary to build up a network of experienced lawyers who can be called on for advice when required—lawyers with knowledge of how the law works in practice as well as the black letter law. Some are in private practice, while others work as consultants from an academic base, depending on the maturity of environmental law practice in their particular jurisdictions.

Above all, it is through practical experience of working with foreign lawyers that law firms can build an extensive network of contacts in the field who are among the leading environmental law experts in their respective countries. This enables them to obtain environmental law advice for clients in most countries of the world that is sound, timely, and commercially applicable. In this way they can highlight for clients the different as well as similar national approaches that may affect their businesses. This may be particularly helpful for those who may be reasonably familiar with some jurisdictions but not others.

A good example of how global expertise can be applied directly for the benefit of clients is sharing expertise in environmental law issues associated with oil and gas production, especially given the commonality of issues and the signs of convergence globally in legal approaches to those issues. The same can be said of numerous other matters relating to air emissions, water, carbon, climate change, maritime pollution, and a host of other things.

Apart from advising clients, environmental lawyers have been part of the process of developing global environmental law, by drafting legislation for other states and by arranging and participating in training sessions for judges, government officials, and parliamentarians overseas. Many from developed countries have shared their expertise with lawyers in developing countries and forged connections by participating in international conferences and in international environmental law organisations for which sharing knowledge and capacity building are primary objectives.

In conclusion, global environmental law services seem destined to become an increasingly important part of a law firm’s offering in the next few decades.

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