Integrated Pollution Control in the Environmental Protection Act 1990: A Coming of Age of Environmental Law?
| DOI | http://doi.org/10.1111/j.1468-2230.1991.tb00905.x |
| Published date | 01 July 1991 |
| Author | Michael Purdue |
| Date | 01 July 1991 |
llie
Modern
Imv
Review
[Vol.
54
feature
of
the new framework lies
in
its c~mprehensiveiiess~~ and the hope that
creating a single body to supervise practice
will
lead
to the emergence of coherent
principles. This is
in
contrast to the more general failure to co-ordinate policy-making
on bioethics
.4y
Nevertheless, when
the
new framework is considered
in
terms of its effectiveness
as
a
method of making health professionals accountable, a more cautious welcome
is
in
order.
In
general, English law has been reluctant to intrude on the clinical
freedom which health professionals, and particularly doctors, have established.50
Some features
of
the way
in
which the new Authority is to operate
will
make the
professions responsive
to
lay concerns. There are lay members on the Authority,
reports to Parliament and the possibility of more precise Government control.
Nowhere, howcver, is there any guarantee that those most affected by the matters
at stake
will
have a voice. Lay participation is sought through the benevolence of
the great and the good, not by empowering consumers. As a result, the practical
effect
of
the powers given to the licensing authority may
turn
out to be more the
centralisation
of
medical power than the opening of professional values to public
debatc.
Integrated Pollution Control in the Environmental
Protection Act
1990:
A
Coming
of
Age
of
Environmental Law?
Michael
Purdue
*
The Emergence
of
Environmental Law
Environnicntal law has suddenly sprung into prominence
in
the last few years. The
subject now has its own specialist association, the United Kingdom Environmental
Law Association. There are several periodicals devoted to the subject; the Journal
of
Environmental Law being perhaps the flagship.
Those
interested
in
the subject
are continually bombarded
with
news of conferences aiming to provide expert analysis
on the latest changes
in
the law and practice. Yet the scope and nature of the subject
is still ill-defined and there is a lack
of
identifiable environmental law principles.
The form of environmental law is a pragmatic mixture of chiefly judge-made private
law and statutory systems
of
regulation carried out by public bodies.
In
this the
subject is by no means unique but more important is
the
lack of a coherent set
of
environmental principles and rights. However, there are signs of change.
In
this
respect, European Community environmental law has been particularly important
in
evolving principles and values and, now that the Community's role
in
legislating
--
48
49
50
*University
of Ncwcastle upon Tyne.
I
would
likc
to
thonk Richurd Macrory for commenting
on
a
first
draft.
For issues which
thc
Act
docs
not
dcnl
with sec Morgan
and
Lee,
B/ack.~~iitie'.~
Citidil
10
flw
Hitttitrti
Fmi/isciriotr
tirid
Dtih,:).o/o,g,~
Act
1990
(London: Blackstone
Press,
I99
I)
pp
28-32.
Kcnncdy
8~
Stone, 'Muking Public Policy on Medical-Lcgal Issucs'
in
Byrnc
(cd),
Efhicx
mid
Lrnv
iti
Hedtlr Ctircz
mid
RiwrrrcA
(Chichcstcr: Wiley, 1990).
For
an
ovcrview,
scc
Montgotncry, 'Mcdiciiic, Accountability
and
Professionulistii'
(1989)
I6
Journal
of
Law
and
Socicty 319.
534
July
1091)
Ititqr~ircd Pollution Cotrtrol
it1
the
EPA
1990
on environmental matters has been put on a secure legal footing by the Single
European Act, regulations and directives based on these principles
will
increasingly
inipinge on the legal systems
of
the member states. The scope and significance of
European Community law has recently been assessed by Philippe Sands
in
this
review’ and
so
here
I
will
not rehearse those community law principles. Before
addressing Part
I
of the Environmental Protection Act
1990
and the new systems
of Integrated Pollution Control and Air Pollution Control which
it
creates, however,
it
would seem useful to attempt to set out briefly the principles, rights and methods
(derived from Community law and elsewhere) which are currently being put forward
as
the framework for environmental law and policy.
Environmental Principles, Rights and Methods
The
Preventative Principle
That pollution should be prevented may perhaps be seen to be self-evident and the
Second European Community Action programme
(1987-9
I)
is more specific
in
that
it
talks of‘ ‘preventing the creation
of
pollution at source,’ thus involving the
means of prevention. Complete prevention of pollution, however, is both practically
impossible and politically infeasible.
In
this respect
it
is significant that, during passage
of the Environment Protection Bill through committee
in
the Commons, whenever
the opposition complained that the provisions would not eliminate a particular kind
of pollution, Conservative members were quick to
ask
whether this was really Labour
policy as
it
would result
in
the closure of certain sectors of industry. This thrust
caused obvious embarrassment on the Labour side.
So
the principle is really no
more than a goal or objective.
‘The Precautionary Principle
This principle seem
to
have originated
in
West Germany, and literally the German
word ‘Vorsorgprinzip’ means ‘precaution or foresight.’2 However,
it
has come to
mean the
minirnisation
of
the risk
of
pollution and
it
is interesting to note that the
recent White Paper,
This
Common
Inheritance: Britain
’.Y
Environmentul Strategy,.’
adopts
a
qualified version
of
this
principle when
it
states that: ‘Where there are
significant risks of damage
to
the environment, the Government
will
be prepared
to take precautionary action
to
limit
the use of potentially dangerous pollutants,
even where scientific knowledge is not conclusive,
if
the balance of likely costs
and benefits justifies
it.
’4
This last reference
to
balance einphasises again that this
is not an absolute principle and its application must be guided by another P principle;
thc proportionality principle.
An
interesting example
of
what is
in
effect a statutory adoption
of
the precautionary
principle is
the
United States Clean
Air
Act
1982,
which requires emission standards
to
be set at levels which provide an
ample
margin of safety. The United States courts
have held that this does not mean that standards have to be risk-free and that once
I
2
3
Cm
1200
(London:
HMSO,
1990).
4
See
P.
Snnds,
‘European
Cotiiriiunity
Etivironiiieiital
Law:
Legislation,
the
Europoarl
Court
~IJusIIcc
and
Coiiitiion-Interest
Groups’
(1990)
53
MLK
685.
7icw’jilr
Ncpcirt
of
rlic
R~J)”I/
Corrrrrri,s,siorr
or1
~rr~~ir~rirti~~rr/ci/
Po//it/im.
Cm
3
10
IFcbruiiry
19x8)
ihid,
HI
para
I.
18.
pp11-12.
535
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