‘Poisonous, Noxious or Polluting‘: Constrasting Approaches to Enviornmental Regulation
| Published date | 01 March 1993 |
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb00954.x |
| Date | 01 March 1993 |
| Author | William Howarth |
March
19931
Contrasting Approaches to Environmental Regulation
‘Poisonous, Noxious or Polluting’
:
Contrasting
Approaches to Environmental Regulation
William
Howarth
*
The first and most, obvious comment is that
. . .
[the Rivers Pollution Prevention Act
18761
does not define pollution. It is surely extraordinary that
a
statute, the ultimate consequences
of
which are penal, nowhere gives notice to those whom it may concern
of
the offence they
are to avoid. Nor does it afford assistance to the judges who have to decide the cases under
the Act.’
The words ‘poisonous, noxious or polluting matter’ are
. . .
emotive rather than scientific
and must be approached with great caution.2
Introduction
It is difficult to overestimate the present levels, of concern about environmental
problems which pervade the developed world. There is a ubiquitous feeling that
more ought to be done to halt environmental decline and ultimately to pass on the
Earth to future generations in at least as good an ecological state as the present
generation found it. Whilst at a theoretical level these sentiments are frequently
tantamount to moral, political or philosophical convictions, they invariably entail
calls for practical measures for environmental protection or improvement. Environ-
mental pressure is applied through the diverse forces which shape public and
individual opinions to redirect industry, commerce and personal lifestyles onto a
more environmentally benign course.
Clearly, enhancing awareness and influencing behaviour is a first step towards
environmental improvement, but where an environmentally preferable course of
action is perceived to involve a diminution in standard of living or a reduction of
freedom of choice, the recalcitrance of human nature is such that it needs to be
reinforced if progress towards a common good is genuinely to be made. This need
not always necessitate legal constraint since many examples exist of effective
economic mechanisms for sectoral environmental impr~vement.~ Ultimately,
however, if the market mechanism allows the unlimited purchase of environmental
degradation by those with the economic strength to
do
so,
then its limitations are
self-evident. The environmental imperative is ultimately a matter of public and private
rights and duties, and the interests of future generations, which are not available
as negotiable commodities to be purchased at any ‘going market rate.’
Effective environmental protection and improvement is, therefore, a matter of
legal rights and duties. That having been said, the unavoidable issue is that of how
law is appropriately utilised to meet the environmental challenge. The essential
difficulties were identified by Lord Scarman some years ago.
*Cripps Harries HalllSAUR (UK) Professor of Environmental Law, University of Kent at Canterbury.
1
2
3
Taylor,
me
Law
Afsecring
River Pollution
(Edinburgh:
W.
Green and Son, 1928) p 82.
Newsom and Sherratt,
Water Pollution
(Altrincham: John Sherratt and Son, 1972)
p
29.
See generally Pearce, Markandya and Barbier,
Blueprint for
a
Green
Economy
(London: Earthscan
Publications, 1989).
@
The Modern Law Review Limited 1993 (MLR 56:2, March). Published
bv
Blackwell
Publishers, 108 Cowley Road, Oxford OX4 ‘1JF and 238 Main‘Street, Camb;idge,
MA 02142, USA.
171
The
Modern
Law Review
[Vol.
56
For
‘environment’ a traditional lawyer reads ‘property’: English law reduces environmental
problems to questions of property
.
.
.
But the truth has to be faced. The judicial development
of the law, vigorous and imaginative though it has been, has been found wanting. Tied to
concepts of property, possession and fault, the judges have been unable by their own strength
to break out of the cabin of the common law and tackle the broad problems of land use in
an industrial and urbanised society. The challenge appears, at this moment of time, to be
likely to overwhelm the law
. .
.
the guarding of our environment has been found to require
an activist, intrusive role to be played by the executive arm of g~vernment.~
Undeniably, the concepts of property, possession and fault have profound limita-
tions in the environmental context. If the object of environmental laws are to prevent
environmental damage, then there is no compelling reason why land ownership or
possession should provide a defence to causing such harm, nor is there any overriding
reason why lack of these interests on the part of a complainant should provide a
bar to legal redress. Similarly, with the concept of fault, there can be few conceivable
instances where a person embarks upon a course of action with the sole motive of
environmental vandalism. Rather, the problem is that environmental harm is the
unintended, but increasingly unacceptable, by-product of environmentally unsustain-
able lifestyles and the industrial and other production processes that are needed to
continue them. In law, the concept of fault tends to be understood as an individual
rather than a collective predicate and for that reason the attribution of fault to society
as a whole, or even a particular branch of industrial activity, is conceptually difficult
to bring within general legal cognisance.
Whilst the limitations of the concepts of property, possession and fault in the
environmental context are well recognised, the invocation that environmental
protection requires ‘an activist, intrusive role to be played by the executive arm
of government’ begs the question as to what precisely is required to be done. Even
if the view is conceded, that the role of the law in environmental protection is most
effectively exercised through the executive arm of government, the task of translating
broadly, and often imprecisely, formulated environmental goals into the precise
detail required for effective regulatory law, and providing for appropriately consti-
tuted regulatory authorities properly empowered to oversee its adherence, remains
a fundamental challenge to law and legal systems.
Ultimately, the environmental challenge has to
be
confronted across the full breadth
of environmental and conservation issues
as
parts of a coherent regulatory programme
directed towards explicit environmental objectives. In the present context, however,
only
an
insight into the overall difficulties can be provided. Accordingly, the following
discussion attempts to trace the legal characterisation of a single environmental idea,
that of ‘pollution,’ into a particular environmental sector, the aquatic environment,
and to examine the conceptual problems in providing a satisfactory system of
environmental regulation for this context.
A
The Concept
of
‘Pollution’
It is evident that the creation of rights and duties concerning the pollution of water
necessitates some objective and justiciable characterisation of what ‘pollution’ entails.
Remarkably, the law
of
England and Wales has been relatively swift to propound
4
5
Scarman,
English
Law
-
The
New
Dimension
(London: Stevens and
Sons,
1974) pp 51 and
53.
On the early civil cases
on
water pollution, see generally Howarth,
Water
Polfurion
Law
(London:
Shaw and
Sons,
1988) Ch
3.
172
0
The
Modern
Law Review Limited
1993
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