Interpreting Environmental Offences: The Need for Certainty

by Emma Lees

Overview

Now available in paperback! This book analyzes the interpretation of environmental offences contained in the waste, contaminated land, and habitats' protection regimes. It concludes that the current purposive approach to interpretation has produced an unacceptable degree of uncertainty. Such uncertainty threatens compliance with rule of law values, inhibits predictability, and therefore produces a scenario which is unacceptable to the wider legal and business community. Emma Lees proposes that a primarily linguistic approach to interpretation of the relevant rules should be adopted. In so doing, the book analyzes the appropriate judicial role in an area of high levels of scientific and administrative complexity. A framework for interpretation of these offences is provided. The key elements included in this framework are: the language of the provision; the harm tackled as drafted; regulatory context; explanatory notes and preamble; and, finally, purpose in a broader sense. Through this framework, a solution to the certainty problem is provided. Revised Dissertation. [Subject: Energy & Environmental Law, European Law]

Product Details

ISBN-13:	9781849467377
Publisher:	Hart Publishing UK
Publication date:	06/18/2015
Pages:	256
Product dimensions:	5.80(w) x 8.40(h) x 0.90(d)

About the Author

Emma Lees is a University Lecturer in Property and Environmental Law in the Department of Land Economy, University of Cambridge.

Table of Contents

Acknowledgements v

Table of Cases xi

Table of Legislation and Conventions xvii

1 Introduction 1

I Structure 5

II Motivation, Scope and Methodology 8

A Motivation 8

B Scope 11

C Approach to Analysis 15

2 Environmental Criminal Law in Context 18

I Property and Environmental Law 19

II Human Rights and the Environment 24

III Questions of Risk 27

IV Jurisdictional Overlap-National Law and EU Law 30

V Interpretation and Judicial Reasoning 33

VI Criminal Law and Environmental Law 34

VII Conclusion 38

3 Legal Certainty 40

I Defining Legal Certainty 40

A Perfect Certainty 41

B Certainty and Predictability 41

C Certainty in Context 46

II Transparency and Accessibility in National and European Case Law 47

III Certainty in Environmental Law 51

A Perception of Immaturity 52

B Dissatisfaction Amongst Wider Legal and Business Community 54

C Interaction with Science 56

D Tackling the Problem of Administrative Complexity 57

IV Conclusions 58

4 Waste, Nature Conservation and Contaminated Land: The Offences 60

I Waste 60

II Contaminated Land 63

III Nature Conservation 67

A National Law Designation 69

B EU Law Designation 70

5 Uncertainty in Interpretation 75

I Uncertainty in Practice 75

A Waste 76

i Case-by-Case Decision-Making 76

ii Abdication of Responsibility for Providing Certainty 80

iii Reluctance to Articulate Reasons 81

iv Hard to Reconcile Outcomes 83

B Contaminated Land 85

i Case-by-Case Decision-Making 85

ii Abdication of Responsibility 86

iii Reluctance to State Reasons 87

iv Hard to Reconcile Outcomes 88

C Nature Conservation 89

i Case-by-Case Decision-Making 90

ii Abdication of Responsibility 91

iii Reluctance to Provide Reasons 91

iv Hard to Reconcile Outcomes 92

D Conclusions 93

II The Teleological Approach in the Courts 93

A Waste 93

i Purposive Interpretation 93

ii Dissatisfaction with the Purposive Approach 95

B Contaminated Land 96

i Purposive Interpretation 96

ii Dissatisfaction with the Purposive Approach 97

C Nature Conservation 99

i Purposive Interpretation 99

ii Dissatisfaction with the Purposive Approach 101

D Conclusions 102

6 Identification of the Cause of Uncertainty: The Regulatory Culture 103

I Approach of the ECJ 104

II Administrative Approach 110

A Waste 111

B Contaminated Land 115

C Nature Conservation 117

D Conclusions 120

III The Ambiguous Role of the Courts 121

IV Academic Approaches 123

A Waste 124

B Contaminated Land 130

C Nature Conservation 134

V Conclusions 138

7 The Solution: A Change in Approach to Interpretation 139

I Linguistic Analysis 141

II Mischief 144

A Understanding Harmfulness in the Environmental Context 145

i Harm and Harmfulness 146

ii Harm in the Environmental Context 147

iii Property and Land 149

iv Interaction with Criminal Law 151

v Comparison with Existing Approaches to Environmental Harm 151

vi The Relationship Between Nuisance and Regulation 161

vii Accounting for Uncertainty, Lack of Scientific Knowledge and Administrative Discretion 164

III Seeing the Rules as Part of a Framework 167

IV Explanatory and Pre-Legislative Materials 168

V Ambiguity-Aims as a Last Resort 170

VI Conclusions 170

8 Practical Implementation of the Solution 172

I Environmental Principles 172

II Legal Barriers to Taking Such an Approach and Overcoming Them 177

A Jurisprudence of the ECJ 178

B Statutory Guidance 189

III Examples in Practice 189

A Interpretation of the Key Terms 190

i The Waste Regime 190

ii Contaminated Land 194

iii Nature Conservation Provisions 196

B Increasing Certainty 197

9 Conclusions 199

I Property/Environmental Law 200

II Human Rights and the Environment 201

III Question of Risk 201

IV Jurisdictional Overlap 202

V Interpretation and Legal Reasoning 203

VI Environmental/Criminal Law 204

VII Conclusion 206

Bibliography 209

Index 231