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Über dieses Buch

This book addresses legal aspects of sustainable development and offers the latest thinking on a wide range of current themes. By taking a cross-cutting approach, it adds considerably to the exploration of this emerging scientific field.
Twenty-nine original contributions present innovative thoughts and replicable ideas from this exciting, new area, which will be of value to practitioners and researchers alike.These contributions are allocated into a horizontal and sectorial part. The section covering horizontal policies has five sub-parts: 1) general aspects; 2) human and intellectual property rights; 3) communication and social enterprise governance; 4) public participation and 5) assessment tools. The second part on sectorial policies also has five sub-parts: 1) forest and water management; 2) renewable energy; 3) cities, waste and material management; 4) biodiversity, nature conservation, oceans and spatial planning and 5) agriculture and rural policy.
It offers a multifaceted discussion of sustainable development and law by authors from five continents and from both the public and the private sectors. This selection guarantees a broad view that presents the more theoretical arguments from the academic as well as the practical perspective.
Furthermore, the authorship includes senior, highly experienced academics and practitioners as well as those at the start of their career. This ensures thoughtful expansions of established theories as well as the emergence of innovative ideas.
Moreover, the ten sub-parts bring together likeminded thoughts, resulting in an exchange of different viewpoints on a similar theme. This allows the readers to concentrate on individual chapters, while at the same time discovering a variety of thoughts and ideas.

Inhaltsverzeichnis

Frontmatter

Introduction

This chapter provides an overview on the content of this edited volume.

Volker Mauerhofer

Horizontal Policies: General Aspects

Frontmatter

The Circulation of the Model of Sustainable Development: Tracing the Path in a Comparative Law Perspective

The analysis of the diffusion of Sustainable Development at the global level can provide an interesting starting point to see how even one of the most important and universally recognized concepts can give rise to different interpretationsInterpretationlegal and applications. This diffusion is observed here through the mechanism of the circulation of legal models, the cornerstone of comparative legal studies. The circulation of legal models, made famous by Alan Watson with the metaphor of “legal transplant”, provides a dynamic approach to the study of comparative law. According to this theory, a transfer of a rule from a legal system to another or from one people to another, not only is not an exception, but also proves to be a common practice since the most ancient of history. Sustainable Development, as a new paradigm adopted at the international level, has shown its dynamics through the vertical and horizontal circulation of its models. Moreover, this contribution will be an opportunity to propose a third type of circulation of legal models: the “oblique” circulation. Thus, the model of Sustainable Development becomes the starting point for the development of regulations based on its principles, but those have different characteristics depending on the context where they are implemented. Therefore, this contribution is an attempt at tracing the path made by Sustainable Development through different stages of its evolution and through various legal systems, trying to shed light on the dynamics of this journey without losing sight of the typical goals of Sustainable Development.

Ivano Alogna

3-D Sustainability and Its Contribution to Governance Assessment in Legal Terms: Examples and Perspectives

Environmental, social and economic capitals, capacities and carrying capacities provide the theoretical construct of the three dimensions of a sustainable development. Based thereon, this chapter aims firstly to provide a conceptual overview on two main objectives of multilevel rule of law systems that should be addressed when adapting these systems towards a more sustainable direction. This first aim is addressed based on ‘3-D Sustainability’, a concept offering six flexibly applicable decision-making criteria for priority setting between these sustainability dimensions based on the burden of proof in the sense of the precautionary principle. The theoretical application of these criteria on several real-world examples of legislative acts indicates the concept’s usefulness in practice. The two main objectives identified within this first aim are to stay through international environmental policy within the environmentally sustainable scale and to politically define flexible legal trade-off mechanisms, which more sustainably deal with conflicts among these sustainability dimensions. Secondly, the chapter strives to identify ways to strengthen the application of the existing international environmental legislation. Thus, several innovative mechanisms are identified that overcome current implementation and enforcement deadlocks, without changing existing laws, but also increasing its direct effect. In summary, the chapter innovatively offers—based on ongoing research—several solution proposals for addressing in a sustainable manner geopolitical and organizational scales as well as trade-offs when it comes to re-writing existing environmental legal institutions (de lege ferenda). It further provides proposals for the innovative implementation of existing normative regimes without modifying legal text (de lege lata).

Volker Mauerhofer

Sustainability—A Long, Hard Road

Sustainability—a term compromising a group of themes and being of immense importance for today’s and all future generations. It has developed in last decades to one of the most central concepts in environmental law and poses an important component of political and juridical aims. The Treaty of Amsterdam implemented sustainability in primary law as a basic objective of the European Union. As a consequence, the EU established the Sustainable Development Strategy (EU SDS) with the aim to improve the living situation of all generations. Also on a national level, many measures have been taken to enhance the “sustainable development” approach. But one has to ask the question: does the concept of sustainability work? Do the measures taken, inter alia, in the fields of transport, energy, climate change and waste management lead to the desired success or is it just a sublime goal, a program without (sufficient) implementation? Or is it even just a tokenism?

Ferdinand Kerschner, Erika Wagner

Horizontal Policies: Human and Intellectual Property Rights

Frontmatter

Environmental Sustainability as a Human Right

Sustainability means capable of being sustained. The term sustainable development is introduced under this concept to ensure that rapid development takes place in harmony with nature; and natural resources such as forest and water resources can be sustained for future users. Within the legal fraternity, the word ‘sustainability’ has seeped into the legal discourses as to whether it can be regarded as a legal principle which can be used and argued upon in the court of law. This chapter highlights on prospect and challenges of establishing environmental sustainability as a valid legal principle. It focuses on the concept of environmental jurisprudence and how environmental sustainability can be regarded as a human right or a right to life under a country’s constitution. The paper concludes that this can be done through judicial activism and by relaxing the doctrine of legal standing.

Rasyikah Md Khalid, Faridah Jalil, Mazlin Bin Mokhtar

Ensuring Access to Safe Drinking Water as an Imperative of Sustainable Development

The principle of sustainable development has become a constant phrase of international documents adopted in the last few decades leading to the development of an international legal obligation of ensuring sustainable development. This chapter argues, that ensuring access to safe drinking water is one of the imperative due diligence obligations derived from sustainable development, requiring from a State to take all necessary actions that can be reasonable expected from it to take to ensure sustainable development. This obligation of ensuring access to safe drinking water is an obligation of conduct and as illustrated in the chapter stems from the two intertwined pillars of sustainable development: social development and environmental protection. Such an understanding of the obligation to ensure sustainable development opens up a possibility of additional legal reasoning, alongside the human rights arguments, when advocating for respect of an international legal obligation imposed on States to diligently pursue their efforts of ensuring accessibility to safe drinking water, not only to specifically affected groups of people, but systemically, to the entirety of their populations.

Vasilka Sancin, Maša Kovič Dine

Ensuring a Sustainable Future Through Recognizing and Protecting Indigenous Ecological Knowledge

This paper sets out the way in which Indigenous ecological knowledge has received increasing recognition as a holistic mechanism through which Australia’s natural resources can be sustainably managed. This increased recognition and consequent utilization needs to take place within a legal framework that acknowledges and respects the customary laws and rules of the Indigenous ecological knowledge holders and provides appropriate benefits back to those knowledge holders. This paper considers the nature of such a legal framework and reports on the research conducted by the author and her research team, through the use of action research and Indigenous research paradigm methodologies, in developing such a legal regime that encapsulates the principles established in the Convention on Biological Diversity 1992, expanded in the Nagoya Protocol to the Convention, and reinforced in the United Nations Declaration on the Rights of Indigenous Peoples 2007. The result was a White Paper espousing a sui generis legal framework of recognition and protection of Indigenous knowledge associated with natural resource management focussed on the Aboriginal Communities of the state of New South Wales in Australia and accordingly reflects the concerns and interests of those communities while incorporating the international law principles described above. This was achieved through an initial comparative analysis of regimes already in existence in other nations, the establishment of a highly skilled and multidisciplinary Working Party representing both Indigenous and non-Indigenous individuals and stakeholders, and finally through Aboriginal Community consultation.

Natalie P. Stoianoff

Horizontal policies: Communication and Social Enterprise Governance

Frontmatter

Framing New Environmental Cultures for Sustainability. Communication and Sensemaking in Three Intractable Multiparty Conflicts in the EbreBiosfera, Spain

Since communication defines conflict and intervenes in the discursive construction of sustainable development, it is more than just a mere tool in mediation processes aimed at resolving environmental intractable conflicts, but is itself a constitutive component of the conflict. Through communication, the discursive and organizational practices and logics of institutions like the law, government and social movements frame and make sense of conflicts regarding the environment. Our objective is to analyse communicative processes in environmental conflicts as an engine driving social change to sustainable development. From an interactional approach to framing we analyse three environmental disputes related to water and energy in the Terres de l’Ebre (Southern Catalonia). We observe how, as an alternative to a conflictive frame, the UNESCO recognition of the Terres de l’Ebre as a Biosphere Reserve (EbreBiosfera) is configured in a proactive, cohesive and consensual frame. In all three conflicts new meanings for sustainable development associated with environmental and social justice and democracy have resulted in new environmentally sustainable cultures, specifically, new water and energy cultures that produce local results of global application. In terms of implementation of these cultures, communicative legislation or “soft law”, understood as a horizontal interactive two-way dialogue, is more effective and offers more satisfactory long-term results than a traditional top-down approach.

Jordi Prades, Aitana De la Varga

An Empirical Investigation of Supportive Legal Frameworks for Social Enterprises in Belgium: A Cross-Sectoral Comparison of Case Studies Concerning Social Enterprises in the Social Housing, Finance and Energy Sector

This study aims to investigate how the existing legal framework for social enterprises in Belgium affects the activity of social enterprises in the social housing, finance and energy sector. The focus is thereby on the legal factor of governance and the decision-making power of stakeholders. These matters are examined in respect of one particular type of social enterprises, the so-called company with a social purpose, ‘Vennootschap met Sociaal Oogmerk’ (VSO). The authors conducted three case studies in Belgium. They examined in which way the VSO law has been implemented in three social enterprises which are active in different sectors, i.e. the energy, finance and housing sector and compared the results. By comparing the case studies, this article aims to generate (i) a cross-sectoral theoretical analysis regarding the practical application of the legal factor of governance in the three Belgian social enterprises and, (ii) a comprehensive understanding of the involvement of different stakeholders in the social enterprises’ governance in these sectors. Useful conclusions were drawn for the improvement of the legal framework for social enterprises in Belgium as well as for the improvement of the social enteprises functioning.

Aikaterini Argyrou, Tineke Elisabeth Lambooy, Robert Jan Blomme, Henk Kievit, Guus Nieuwenhuijzen Kruseman, Duco Hora Siccama

Horizontal Policies: Public Participation

Frontmatter

Judicial Control Over Acts of Administrative Omission: Environmental Rule of Law and Recent Case Law in Japan

Judicial control of administrative acts of omission is indispensable for ensuring sustainable development. Despite advancements of environmental legislation, deficient implementation is a serious problem in many countries. This issue grows in importance, especially because in the field of environmental law the executive branch is usually given considerable discretion as to how and when to exercise its regulatory power. This article analyses recent developments in case law on judicial control of administrative acts of omission in Japan. State liability cases and mandamus cases are typical measures for challenging omissions of public authorities. Recently, State liability lawsuits, such as Minamata and asbestos cases, have proven to be an effective measure to challenge the non-use of the regulatory power. Although such kind of lawsuit is a direct measure to compensate the victims, it also plays an important role as an indirect measure to push the government to exercise its regulatory power. The mandamus action is more a direct measure to control illegal failures. It is a new type of administrative litigation expected to demonstrate more effectiveness in the future.

Noriko Okubo

Examining the Resilience of Public Participation Structures for Sustainable Mining in the Philippines

This paper analyses the interplay of institutional-legal architecture, politico-structural conditions and civil society configurations and how it influences the resilience of public participation structures towards sustainable mining in the Philippines. It illustrates how intersecting forces of predominant political economic interests and emergent civil society networks navigate through legal frameworks to influence dependencies and the shifting boundaries of public engagement in mining governance. It argues that the country’s mining sector is in a state of impasse with a government struggling to restructure its mining policies to accommodate a growing public clamour for environmental and social protection while continuing to provide incentives to large-scale mining corporations within a neoliberal framework. This has expanded and created new spaces, including legal and juridical paths, for civil society to pursue accountability mechanisms and challenge entrenched constraints. However, this attempt by the government to reconcile incompatible interests in the mining sector, translates to an ambivalent framework of governance that could not identify its priority. This results to arbitrary policy compromises that exacerbate prevailing tensions amid power imbalances in the sector, leaving civil society in perpetual square-off against mining corporations.

Weena Gera

Public Participation and Constitutional Impediments to Sustainable Development in Nigeria

A sustainable society is an imperative of good governanceGovernance and constitutionality in the modern times. It is defined as one that can progress without catastrophic setbacks in the foreseeable future. This view is strengthened by pre-independence Africa when crude oil exploration has not destroyed the flora and fauna. The advent of military dictatorship and reliance on crude oil brought unwholesome development. Military rule is antithetical to constitutionalism. The constitutionConstitution of nations should be a holistic document that gives palliative to citizens in time of need, most significantly when their fundamental inalienable rights are infringed either by the State, persons in high places or an individual. The citizens must have access to justice. This paper assesses the Constitution of Nigeria 1999 in terms of its contribution to sustainable society and development. Though there is no perfect constitution, yet its imperfections had been the source of a Constitution Review Conference held in 2014. Can the amendments proposed there justify sustainable society? It posits that the provisions of the constitution must be made justiciable for sustainable society and development to be achieved; else the constitution will be burdened for non-functionality and lack of societal sustainability. We must change from a worldview that places human beings at centre of the universe, and see sustenance of the integrity of the whole earth system as overriding concern. Thus, only an acceptable and functional constitution can bring about good governance which Nigerians presently seek.

Taiwo Odumosu

Horizontal Policies: Assessment Tools

Frontmatter

A Global Conceptual Framework for Categorizing Environmental Change Based on Property Rights and Compensation

The paper offers a new conceptual framework based on property rights and financial compensation in different nature conservation situations in order to provide a globally applicable system for the assessment of participation of public and private stakeholdersStakeholders in envisaged changes within those situations. These situations of change represent a modification from conservation toward non-conservation and vice versa. The framework distinguishes further between governance systems based on command and control as wells as on negotiation. Within these main change situations and governance types, the framework allows the distribution of change situations into 8 main sections. These main sections are further separated into 32 sub-sections by means of different property right and compensations situations among public and private stakeholders. The theoretical utility of this new framework is then demonstrated by testing it by means of a random sample of 74 papers (25 %) out of representative 297 papers from the academic literature dealing with property rights. These 74 papers provided practical examples for situations of change in conservation as evidence for most of the 32 sub-section. Several papers provide examples for more than one sub-section. The allocation of papers to these different subsections is described and discussed in detail. This widely possible allocation proofs in general the global applicability and usefulness of the new framework. The framework also proofed to be appropriate for formally (rule of law based) and informally (customary law based) institutionalized situations where rights are given to public and private stakeholders for other practical cases of public participation.

Volker Mauerhofer

Prioritising the Environment in Sustainable Development: Lessons from Australian Environmental Impact Assessment

It is a truism that to be effective, the concept of sustainable development (SD) needs to be functionally operational. Environmental impact assessment (EIA) provides such an opportunity; yet EIA also presents decision-makers with a vast array of competing criteria compelling decision makers to prioritize and make trade-offs. Moreover, legislation provides little guidance on how to prioritize these criteria and still achieve SD. Using the Australian state of New South Wales as a case study, the discussion evaluates the relationship between policy, legislation and the weight given to SD. The topic is important for policy makers, decision-makers, proponents of development and conservationists. The paper draws on two bodies of work: the literature on prioritising and trade-offs in decision-making by authors such as Brownlie and Retief et al.; and the paradigms and models of science identified by Cashmore. It proffers a means of curtailing the wide discretion available to decision-makers using civic science, which to be effective, needs to be legislatively-based.

Sophie Riley

Reframing Sustainability in Taiwan: Legal Challenges and Opportunities

This chapter mainly describes Taiwan’s policies and legal regimes for sustainability and its future prospective in international participation. First of all, along with the economic development, Taiwan gradually established specific authority for environmental governance, being responsible from prevention of pollution to precautionary measures for guaranteeing sustainable use of natural resources. In the approaching future, a new Ministry of Environment and Resources will be installed for a centralized authority and comprehensive governance. Besides, national programs and strategies announced by the Cabinet in Taiwan, accompanying with related laws and regulations, mostly passed by the legislation, played a significant role in implementations of environmental affairs. In a word, Taiwan has shown its capacity and ambition to cope with the need of sustainability in our age. However, because of its ambiguous status in international arena, Taiwan still lacks opportunities to participate in real, official international cooperation for environmental protection and sustainable development. Some sui generis participation is nevertheless envisaged in a long run.

Yao-Ming Hsu

Sectorial Policies: Forest and Water Management

Frontmatter

A Legal Butterfly Effect: Unexpected Twists and Turns of the Law in Costa Rica’s Payment for Ecosystem Services Program

Costa Rica’s Payment for Ecosystem Services program (PES) is one of the most studied exercises of its kind but closer examination of the program’s legal framework and governance is still lacking. The PES did not occur on a vacuum; laws and policies outside the boundaries of the PES’ regulations shape the way it evolved and functions. The supervisory checks and balances of the forestry regency system, the public funds laws that reduced the program’s flexibility, and the administrative simplification process across the Costa Rican government are all examples of policies outside the PES that strongly influence its functioning. Foreign policies also shaped the PES. For example, the World Bank-sponsored structural changes of the Costa Rican economy during the 1980’s helped shift the rationale from forest subsidies to payments for ecosystem services. In addition, a closer look at the PES on the ground provides interesting opportunities to reflect on the effects of this legal framework. For example, the way violations to forest laws occur and are dealt with by judges and PES officials most likely had an effect on the Costa Rican forest cover, which is missed in studies focused on the additionality of the program. Ultimately, however, people implement the PES and this paper suggests an interesting dynamic between two types of bureaucrats at the program, the ‘technicians’ and the ‘lawyers’. The ‘lawyers’ seem to have displaced the ‘technicians’ in a process of ‘rendering legal’ nature, which has conflicting implications for the PES effectiveness. All these dynamics may suggest a legal ‘butterfly effect’ that policy-makers ought to be aware of when designing and implementing environmental institutions and mechanisms.

Pablo G. Peña

From River Basins to Landscapes—Holistic Legal Constructs and Their Differentiation

This chapter explores themes related to the differentiation of spaces of regulation, with regard to the river basin/body of water constructs in the EU Water Framework Directive and the landscape construct in the European Landscape Convention. The two spaces of regulation are described and followed by an analysis informed by the sustainability perspective of E. Ostrom. Ostrom provided a scheme for differentiating spaces for sustainable management, ‘action areas’, and emphasized that the general community, biophysical materiality, and instructive rules are variables that need to be considered when differentiating sustainable management units. The analysis indicates that by combining the spaces of regulation in the Water Framework Directive and the Landscape Convention a more sustainable space of regulation can be established that both reflect Ostroms variables and the multiplicity of the social and ecological dimensions. Similar to the Landscape Convention, the general community, as the public concerned, should be eligible to participate in the differentiation of spaces of regulation. Biophysically a site-specific adaptation seems to better fit with both Ostroms reasoning and scientific literature on the subject. Instructive rules, as the focus or objective of the space, are suggested as population self-maintenance as an indication of ecological functionality.

Henrik Josefsson

Coherence Issues Between Climate, Energy and Water in the Case of European Hydropower: Can We Have It All?

The questions of renewable and sustainable energy have attracted increasing attention in the last decades, becoming salient topics on the national and European political agendas. In parallel, hydropower has made an incredible return to the global agenda, after having been absent due to heavy criticism because of its social and environmental impacts. The common denominator for this surge is represented by the need to mitigate climate change and support low-carbon development paths. Drawing on secondary data analysis the chapter investigates the conflict occurring between climate change mitigation through hydropower and the protection of good water quality in the implementation of two EU directives: the Renewable Energy Directive (RES) and the Water Framework Directive (WFD). After a presentation of the evolving policy and regulatory context around hydropower, the paper explores the link between energy-climate-water-sustainability and addresses the trade-offs, synergies and opportunities for policy integration and coherence. The analysis reveals that while synergies between climate and energy are straightforward and clearly stated at the EU level, and that it is possible to track this co-ordination between water and biodiversity, challenges persist in relation to the link between the Climate and renewable energy package and the Water Framework Directive.

Jonida Abazaj

Sectorial Policies: Renewable Energy

Frontmatter

Generating Renewable Energy for the Material Realization of Sustainable Development: What Do We Need from Multilateral Cooperation, the Climate Change and the International Trade Regimes?

This chapter investigates certain aspects of multilateral cooperation in the field of renewable energy as well as the role that renewable energy occupies within the climate change regime and the questions that both the generation of energy from renewable sources and the use of renewable energy related technologies are growingly posing to the agents of global trade. The premise is that production of energy from renewable sources is the key driver for the material realization of sustainable development. Inter State development cooperation can variously impact on the dynamics of the renewable energy sector. Different branches of public international law can also determine trends in this respect. This is why the case of the International Renewable Energy Agency (IRENA) will be analysed. International rules requiring States to foster the promotion of renewable energy within the climate change regime will then be addressed in light of some results of the Lima Summit (UNFCC-COP20). Finally, certain WTO disputes will be examined in order to identify the limits that international trade law imposes to States in relation to certain specific energy policy choices and to determine if, and to what extent, a space within the WTO system exists in order to accommodate WTO law inconsistent measures however meant to sustain the production of clean energy. The overall goal is to see what is required from international organizations, climate change and trade law to foster the dissemination of renewable energy thereby favouring the material realization of sustainable development.

Marco Citelli

The Fair and Equitable Treatment Standard and the Revocation of Feed in Tariffs—Foreign Renewable Energy Investments in Crisis-Struck Spain

This contribution explores a highly topical issue in international investment law—the protection of foreign investors’ legitimate expectations through the Fair and Equitable Treatment standard (FET) in case of a repeal of renewable energy support schemes. On the grounds of the Spanish case of disruptive cuts, particularly regarding Feed in Tariff regulation supporting photovoltaic energy since 2008, a possible violation of legitimate expectations is being assessed. The investors may rely on the stability of the Spanish régimen especial, despite their own conduct and the State’s right to regulate. Even in times of crisis the State may not justify changes in the regulation to the point of stripping away the very raison d’être of the initial investment. Such measures could constitute a breach of legitimate expectations. Regarding the current global trend of revoking renewable energy support schemes, the present case may initialize a cascade effect for a number of claims.

Thomas Dromgool, Daniel Ybarra Enguix

Horizontal and Vertical Integration of Sustainability into Policymaking, Planning and Implementation of Renewable Energy Projects—The New Zealand Model

While sustainable development is now widely accepted as an international normative principle guiding human interaction with the natural environment, it can be little more than an aspirational platitude unless incorporated in a practical and enforceable way in domestic regulation and processes. This paper addresses the vertical and horizontal integration of sustainability into policy-making, planning and decision-making with a particular focus on renewable energy developments. New Zealand is unique in the way it has incorporated the principle of sustainability as an enforceable concept in domestic legislation. The approach incorporates a hierarchical model with an environmental sustainability objective at the apex. This influences policy-making and “macro-planning” at the national and regional levels, which in turn influences lower level planning and operational decision-making. The system is integrated both vertically between different levels of government (central, regional and municipal), and horizontally between central and local government and resource management agencies, corporations, public interest groups and individuals. The system is a result of an exhaustive administrative and law reform process in the late 1980s-early 1990s that restructured central and local government agencies, and implemented major legislative reform. The underlying conceptual model may be described as “integrated environmental management” (IEM). The system has now been in place for 25 years, and has been continually amended and refined in that time. It provides a useful model of a considered and coherent approach that facilitates sustainable management of the environmentEnvironment and natural resource developmentDevelopment, including encouraging greater uptake of renewable energy.

David Grinlinton

Tackling Climate Change Through the Elimination of Trade Barriers for Low-Carbon Goods: Multilateral, Plurilateral and Regional Approaches

While the trade and environment debate has long focused on the adverse impact of environmental measures on free trade and vice versa and on securing policy space to regulate in the environmental interest, the focus has only recently started to shift to the potentially reinforcing relationship between trade and sustainable development. The present contribution explores this notion by discussing the liberalization of trade in low-carbon goods as a contribution to the fight against climate change. It provides an overview over the existing trade barriers and the efforts to eliminate these barriers for renewable energy goods and energy efficient technologies. The contribution furthermore identifies the liberalization potentials and main challenges in the multilateral, plurilateral and regional contexts. Perhaps surprisingly, mega-regional trade agreements are identified as the most promising venue to pursue ambitious liberalization efforts for low-carbon goods, if trade negotiators were willing to make this a central part of the agreements.

Christopher Frey

Sectorial Policies: Cities, Waste and Material Management

Frontmatter

Environmental Integration in China’s Eco-city Development—From an Institutional Perspective

In the last decade, Eco-City development has been emerging as test beds in China, not only for environmental technologies but also for a new integrated approach of urban planning to achieve better environmental performance in the urban areas development. The study aims to build knowledge, from legal aspects, on how environmental integration in sustainable urban planning is achieved or hindered in China’s eco-city practice. The lessons are as well supposed to give some implications for sustainable urban development in future. The study is based on an overview of China’s national institutional condition for sustainable urban development and a case study of two examples of Tangshan Bay Eco-city and the Sino-Swedish Low-Carbon Eco-City in China. Methods of literature review, document studies, study visits and interviews were applied for gathering relevant knowledge and collecting empirical data on the cases. To conclude, in spite of some progress, the absence of a holistic perspective and effective guidance and constraints in China’s environmental and planning formal rules at different levels appeared as an institutional weakness, hindering environmental integration in urban planning process. Whether or not environmental requirements and their status was clearly stated in the formal rules, such as regulatory detailed plans and land use agreements, also considerably affected the enforcement of environmental integration in urban planning process. In addition, the results indicate an important role of powerful actors, such as local leaders and governments, in issuing an improved legitimacy of high environmental requirements in sustainable urban development through changing formal institutional conditions.

Ying Yin

Identifying the Interaction Between Landfill Taxes and NIMBY. A Simulation for Flanders (Belgium) Using a Dynamic Optimization Model

In the past, legally backed landfills were emerging at an increasing pace in order to deal with growing waste generation. The negative externalities that are caused by these landfills however, together with the emergence of what is nowadays called the NIMBY (Not In My Back Yard) syndrome, led to the awareness that volumes of landfilled waste had to decrease. As a result, restrictions on remaining landfill capacities emerged which causes remaining capacity to be regarded as a non-renewable, scarce resource. In this paper, a dynamic optimization model is constructed to assess the evolution of landfill volumes and landfill prices in time. Carrying out a simulation for Flanders (Belgium), landfill paths and price paths were constructed for two different scenarios. In the first scenario, landfill taxes are taken up in the model, whereas these taxes were omitted from the model in scenario two. As the results show, when landfill taxes are legally levied, it takes 42 years for landfill exhaustion to occur. When no landfill taxes are being used, this period would be shortened to only 20 years. Therefore, it is clear that a legally introduced landfill tax has the effect that yearly landfilled volumes decrease considerably, managing the remaining landfill capacity in a more sustainable way. In addition, when landfill taxes are used, discounted total welfare increases significantly. So we can conclude that, from a broad societal perspective, the added value of a legally introduced landfill tax is considerable in terms of welfare gains.

Rob Hoogmartens, Maarten Dubois, Steven Van Passel

Pressing Forward—Developments in the Transition Towards Sustainable Materials Management in EU Environmental Law

The European Union is experiencing a transition towards the Sustainable Material Management. Ultimately, radical changes are necessary to break down existing strong path-dependencies and lock-ins. Policy and legislation play important roles in this process, as they can either stimulate or obstruct such developments. A variety of constructive policies has been launched in the past fifteen years that form the basis for legislative action to stimulate the sustainable use of materials. Despite numerous fruitful attempts to adjust particular laws, the legal framework as a whole is still lagging behind policy. Nevertheless, several developments in law-making and law can be identified that enhance the legal transition, i.e.: a strategic approach is being adopted, the Better Regulation Package is intended to create coherence and simplicity, and the entire life-cycle of a material is increasingly emphasized in legislation. Especially the latter development, however, must be further deepened and better applied to press forward. In this regard, opportunities lie in the alignment of legislation, the integration of policies, the broadening of the scope of laws and the introduction of novel concepts into the legal framework. All things considered, the European Union has just started its legal transition. The revised Circular Economy Package, including its legislative proposal, might accelerate the transition.

Thomas J. de Römph

Sectorial Policies: Biodiversity, Nature Conservation, Oceans and Spatial Planning

Frontmatter

Sustainable Development: New Thoughts, New Policy, New Law?

New thoughts and new policy on sustainable development have been brought forward and widely discussed and accepted, but law is still lagging behind. This paper aims to fill up that gap and tries to put some new light on how legislation and jurisprudence could meet up with modern sustainability insights. Much nature and planning legislation predates our common understandings of sustainability and might be able to obstruct sustainable development. However, sustainable growth, usually seen in terms of development for which assets and impacts for ecology, economy and society are brought in balance, should be facilitated by future law rather than being obstructed. The paper will focus on European and domestic nature and planning law and their shortcomings and possibilities in terms of sustainable development. The concept of ecosystem services will show the likely obstructions of current law and will help to alter these law provisions as some new improvement directions will be presented.

Frederik Hendrik Kistenkas

Sustainable Development of the Oceans: Closing the Gaps in the International Legal Framework

The world’s oceans are critical providers of ecosystem services and they are under increasing pressure from expanding and intensifying human activities. A range of international instruments and institutions aim to regulate maritime activities, though some legal gaps in the international framework remain. In particular, areas beyond national jurisdiction (ABNJ) lack an overarching regulatory framework, with no provisions for marine protected areas, environmental impact assessment, or access and benefit sharing in relation to marine genetic resources. There are also gaps and weakness in the international framework for the exploitation of offshore oil and gas resources. In this chapter, we highlight these gaps, outline relevant ongoing processes to fill them, and propose ways forward.

Glen Wright, Julien Rochette, Thomas Greiber

Knowledge in Sustainable Resource Management in Australia

Sustainable development (SD) balances conservation and exploitation of natural resources. The concept mandates that biodiversityBiodiversity conservation and ecological integrityIntegrityecological are fundamental considerations in environmental decision-making. Loss of biodiversity is a serious global issue and is one of Australia’s most pressing environmental problems. Increasing recognition of the role of indigenous knowledge (IK) is part of effective solutions to biodiversity loss and ways to achieve benefits for industry and agriculture. Research on IK provides information for understanding the role and importance of customary livelihoods within SD. The importance of combining indigenous and non-indigenous knowledge for conservation and resource management is reflected in the adoption of international principles and instruments which link SD, biodiversity conservation and poverty alleviation. There are a number of innovative tools being developed to embed IK principles into the legal framework for natural and cultural resource management. In Australia and globally, the focus remains on legal protection for IK through intellectual property, contract and trade practices law. There are important policies, programs and projects that value and use IK in Australia but they are piecemeal and generally unsupported by law. More comprehensive constitutionally-based and specific purpose-built legislative models are being developed in Europe, Asia and South America to incorporate IK into environmental decision-making which could be used as a blueprint for Australia. These legislative models should include provisions for the custodians of that IK, to have efficient and inexpensive access to courts and tribunals to enforce duties and protect rights in relation to sustainable resource management.

Judith Preston

Sectorial Policies: Agriculture and Rural Policy

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The Sustainable Use of Biodiversity and Its Implications in Agriculture: The Agroforestry Case in the Brazilian Legal Framework

Brazil is one of the biggest exporters of farm products and one of the most biologically diverse countries in the world. Nevertheless, agricultural expansion and the constant search for higher productivity are main factors leading to biodiversity loss. Thus, the promotion of rural sustainable development is considered a major challenge for Brazilian agricultural policy. In this context, agroforestry system of production might represent a viable solution, since it promotes biodiversity conservation without jeopardizing farm output. However, the complexity of the system may represent an obstacle to its legal implementation. Hence, this paper aims to analyse whether the Brazilian legal framework is well enough structured to implement this system in all its complexity. More widely, this research is seeking solutions to the conflict between traditional farming methods and the biodiversity conservation imperative in Brazil. In order to assess these issues question applied research was implemented and supported by an in-depth literature and legislation review. Amongst the results, this paper shows that according to the green economy’s theory of strong sustainability, the agroforestry way of production represent a sustainable agricultural system because the quality and the quantity of each component of the natural stock is maintained in its original state. Nevertheless, this paper concludes that, regarding the Brazilian context, the potential of the agroforestry systems is constraint by the lack of supportive regulatory framework.

Marcia Fajardo Cavalcanti de Albuquerque

Next Generation Rural Natural Resource Governance: A Careful Diagnosis

Achieving “sustainable development” requires the exploitation without diminution of financial capital, manufactured capital, intellectual capital, human capital, social and relationship capital, and (particularly) natural capital. This requires effective natural resource governance, to guide human uses of the earth into sustainable patterns. Agriculture and rural communities are central to sustainable development because among other reasons: agricultural activities typically require natural environments; agriculture is resource dependent and fundamental to society; and rural people are frequently relatively poor. Good rural natural resource governance is thus a prerequisite for sustainable development.

Paul Martin, Jacqueline Williams

Conclusions

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Conclusions

This chapter summarizes the main findings of the previous chapters.

Volker Mauerhofer

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