The Greening of Industrial Ecosystems (1994) / Chapter Skim
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International Environmental Law and Industrial Ecology
International Environmental Law and Industrial Ecology
Pages 108-122
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From page 108... ...
If industrial ecology is to provide a common ground between the industrial and environmental agendas, it is important to consider the impact of international environmental law on industrial ecosystems and what steps might be taken to effect needed systemwide changes. Briefly summarized, industrial ecology represents a systemwide approach to analyzing industrial processes.
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From page 109... ...
The act also recognizes that current environmental laws often impede cleaner production and consumption practices. To remedy this, the act declares a national policy to eliminate these disincentives and, to the greatest extent feasible, provide incentives for the wider acceptance of pollution prevention techniques for environmental protection.
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From page 110... ...
MOVING BEYOND "COMMAND-AND-CONTROL" IN INTERNATIONAL ENVIRONMENTAL LAW International environmental law, like many national domestic environmental laws, is directed primarily to controlling pollution at the end of processes. A more comprehensive approach is needed to encourage systemwide changes in complex production and consumption practices.
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From page 111... ...
. ~ Because of the relative lack of international environmental regulations, negotiation and confidence-building efforts are particularly important at the international level to fill the void left by law.
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From page 112... ...
Internalizing Environmental Costs Ideally it would be desirable to have all external environmental costs be fully internalized into markets through proper pricing of environmental values, which are now largely free or otherwise underpriced. This ideal cannot, of course, be achieved in practice, but the need for cost internalization is-generally recognized.
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From page 113... ...
An alternative method of encouraging international internalization of environmental costs is to allow national governments to place countervailing duties on imported products equal to the production subsidy the goods receive in the country of origin as a result of less stringent environmental regulations.3 There are, however, a number of practical difficulties with implementing such a system. Precautionary Principle The precautionary principle requires that if a particular action can be shown to pose a threshold risk of harm, then the proponents of the action must prevent or terminate that activity unless they can prove by a preponderance of the evidence that the activity will not degrade the environment.4 The precautionary principle is particularly effective at guiding decision making where little or no evidence exists as to the potential environmental risks of an action.
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From page 114... ...
in Moreover, the precautionary principle has also been adopted in the context of a number of international economic treaties and declarations, including the negotiating text of the Treaty on European Union (Maastricht Treaty, the 1991 OECD Ministers of the Environment Declaration, the 1990 Economic Summit of Industrialized Nations, 13 and the 1989 Summit of the Arch. t4 Pollution Prevention Although international environmental law remains largely media-specific, it has shown a proclivity for pollution prevention as an environmental protection strategy.
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From page 115... ...
Incentives Although much of environmental law at both the national and the international level focuses on imposing penalties against rogue actors, the traditional "penalty-oriented" approach in international environmental law has to be augmented with environmental laws that provide incentives for cleaner production and consumption practices. For example, while much of the Montreal Protocol focuses on penalties to discourage free riders and to encourage nations to join the Protocol, many of the Protocol's most powerful provisions provide incentives, including financing for the transfer of environmentally sound technologies, to encourage states both to join the Protocol and to abide by its goals.
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From page 116... ...
A comprehensive ecosystem approach to international environmental law would encourage producers, intermediate users, and final users and disposers to eliminate environmental costs at the design and consumption stages. Although an ecosystem approach has been slow to develop, international environmental law is, after all, borne out of an understanding that environmental threats do not respect national boundaries.
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From page 117... ...
While it is unclear whether international environmental law currently recognizes a duty to assess the environmental impact of one's actions, environmental assessment is rapidly emerging as a central principle of international environmental law, having been recognized by the vast majority of countries in their domestic laws, internationally in a number of different contexts,20 and by most international organizations.2i Additionally, under contemporary international law, and U.S. domestic law, there are few requirements that proponents of private projects prepare an environmental assessment for an action in the absence of a connection
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From page 118... ...
Moreover, extending the scope of international environmental assessment requirements merely recognizes that as private development initiatives continue to play a larger role in global development, unless properly designed and implemented, these initiatives can entail environmental impacts similar to those of governmental and intergovernmental development efforts. Such an extension of existing law has already been acknowledged internationally by the OECD.22 IMPEDIMENTS TO SYSTEMS APPROACHES IN INTERNATIONAL ENVIRONMENTAL LAW In contrast to the relatively nascent body of international environmental law, there exists a much older and more well defined body of international trade law that can come into conflict with efforts to take a systems approach in international environmental law.
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From page 119... ...
Finite Economic Resources To the extent that changes in international environmental law to encourage systemwide alterations will require nations to divert already strained resources from existing priorities, such proposals may not readily come to fruition. Much of the funding necessary to provide the public financing to adopt incentive-based approaches can be obtained through tax schemes that internalize environmental costs; however, it must be remembered that tax schemes are, themselves, a form of wealth redistribution.
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From page 120... ...
Thus, if international environmental law is to play a role in developing cleaner industrial ecosystems, then the existing tenets of international environmental law must first be modified to include, whenever appropnate, a preference for market-based, ecosystem approaches that encourage pollution prevention schemes over commandand-control and liability schemes. Fortunately, international environmental law appears to be developing, albeit slowly, in a direction that is consistent with the approach to environmental protection advocated by industrial ecologists.
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From page 121... ...
4. Margaret Spring, The Precautionary Principle: An Update, June 18, 1992 (Center for Interna tional Environmental Law Working Paper)
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From page 122... ...
. Philip Allot, International Law and International Revolution: Reconceiving the World 10 (1989)
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