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| Law
and Environmental Australia |
Introduction
It is said that in the years between 1960s and 1970s,
the laws pertaining to the rapid growth of many regulation
concerning the environment have prevailed because of the
many factors that triggered the same. One of such many
factors is the actual perception that there are no longer
institutions that cared about the environment. There may
be some institutions but the effort and the advocate to
protect the environment is not adequate so as to effect
real environmental protection. The levels of the protection
are slowly deteriorating and as a result of which, the
nature and the environment are being exploited by humans.
On the other hand, there is also another factor that affects
the regulation of environmental protection known as the
activities of the private industrial sector. It must be
noted that the industrial sector of business and development
is being protected by the society and any government jurisdiction
because of the fact that it can help in the promotion
of growth of the development that is sustainable in the
aspect of business (La Porta, 1999). The truth of the
matter is that the industrial sector of the business is
being able to provide greatest contribution through the
enforcement of various regulation and governance that
led to the management of the society. It has opened many
opportunities for the people to find employment. It has
also paved the way for the innovation of many aspects
of the society and most especially, it has bridged the
gap between the international trades and eradicated poverty.
It is likewise noted that in the pursuance of the various
industrial activities has led to the destruction and negative
effects on the environment. Pollution is one of the main
effects of industrial activity to the environment. With
this kind of situation, the federal government has been
awakened to its role of regulating and industry in such
a way that there will be laws enacted to protect the environment.
It was in 1969 when the congress actually legislated and
enacted various statutes for the environment. The laws
enacted were Environmental Policy Act, the Clean Water
Act, Rodenticide Act, and the Clean Air Act. These are
but some of the actual laws, statutes and ordinances that
were passed for the purpose of giving support to the environmental
protection.
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However,
there have been many reviews stating that the laws and statutes
made and enacted for environmental protection lacked an
actual cause for the legislation of the same. There have
been no enough values that will provide a reason for the
adoption of the specified measures to conduct in protecting
the environment. It is said then that the common laws legislated
are actually not capable of protecting the environment from
the problems that arising concerning the latter. The remedies
thought to be of great benefits and help are utterly useless
when executed. It has been revealed that the problem is
not about the process of the legislation of laws but rather
pointed on the dissatisfaction of its execution. There have
been many laws such as the Clean Air Act and the Clean Water
Act, but up to this date the laws were not able to eradicate
pollution both in air and in water. It is by this scenario
that many have thought that there is actually no role or
room for common law in the preservation of the environment.
But then again, it can be seen that without the common law
being applied in the protection of the environment, people
will not be able to preserve and secure the environment.
There will be pollution in the air, water and in land. The
environment will surely deteriorate as the industrial activities
are being pursued by many people in the society for the
sake of earning money. It has to be noted that the environment
should be protected so as the next generations will be able
to see a land that is filled with trees, clean water and
clean air. If there will be a lacking capacity to protect
the environment, the common laws enacted are surely not
of great quality to effect a real end solution to the environmental
problems being faced by the people (Kaplow, 1984).
Body
As of the present time, dissatisfaction with the content
and the application of the laws concerning the environment
is growing more particularly the laws being legislated by
the federal government. Despite the success that have been
incorporated to the early environmental laws, the congress
is now examining and analyzing in great manner the role
of common law in environmental protection. Currently, such
potential attributed to common laws by the federal government
is being reexamined to assure that it is performing well
and if it is able to meet the goals set forth in its creation
and legislation. The various regimes that are existing today
is being reexamined in order to know whether or not it is
applicable still; or if there are other requisites or components
of the laws that are needed to be revised, amended or changed
in order to effect a practical yet powerful laws that is
to protect the environment. It is a known fact that there
may still be other forms or portions of the laws that are
needed to be changed in order to ensure that quality is
appropriate and that if the laws are in full capacity to
protect the environment. But then again; there are many
scholars and advocates of the environment that state that
there is a more convenient and effective ways of protecting
the environment. It is said that laws that are actually
state-based tort may be more effective and protective as
compared to the regulations imposed by the federal government.
Many would have asked why. The answer to it is the fact
that with a state-based tort, people will actually think
twice before doing something that will hurt the environment.
Because of the state-based tort it is believed that when
an advocacy is being disrespected and violated, the violators
will be punished accordingly. It has to be remembered that
the implementation of an advocacy campaign may depend on
leadership skills. Leadership skills that will eventually
paved way for the execution of right measures in protecting
the environment. Even if there are many measures and laws
enacted and legislated but the federal government does not
have good leadership skills, the same will fail and hence,
it is better off that there are no common laws.
The United States of America with the inclusion of many
other nations have used the common laws of the English as
the primary basis of their legal systems. Meaning to say,
it is the common laws of English and their tradition wherein
the United States of America and other nations have based
their laws as well. The origination of the various laws
and statutes of the United States as well the governance
of the same are all based in the United States of America.
In line with this, the system of checks and balance is being
applied. Under the principle of checks and balance, there
exists in a political system a system wherein the judiciary
acts as the corrector of both the legislative and executive
branch of the government. Meaning to say, the performance
of any function or power is not entrusted exclusively to
any one person or agency. Control over the exercise of power
or a share with it is granted and exercised by other departments
or government instrumentalities, agencies or offices. The
purpose of ht system of checks and balance as applied under
the tradition of the English common laws speaks of curbing
any misplaced o abusive power. Based on the doctrine of
popular sovereignty, the people are supposed to check their
leaders or representatives through periodic elections. In
turn, the leaders as trustee of public power are supposed
to check the exercise of power by other leaders. There should
not even any existence of any misplaced or abusive power
which is not responsible or accountable to the people, directly
or indirectly. Unbridled power leads to tyranny. It is by
this reason that many environmentalists and advocates thought
that common law still pave the way for the creation d legislation
of laws that will surely protect the environment from any
forms of alteration which will eventually lead to the destruction
not only of the environment but also of the society in general
(Mookherjee, 1995).
The principle of checks and balance states that while it
is the executive department under the control of the president
that prepares and proposes the budget for the national government,
it is the congress through the house of the representatives
that can initiate the bill on appropriations. Congress any
change, reduce, maintain, or increase the proposed budget,
When the president finds that the appropriations bill contains
objectionable items inserted by Congress, he may veto it
in whole or in part. Congress may override the presidential
veto by a two-thirds vote. Congress can likewise countercheck
the judiciary through its power of appropriations. In addition,
congress can balance the judiciary through its power to
define, prescribe and apportion the jurisdiction of the
various courts. It appears that the mechanism of check and
balance has been strengthened to provide greater protection
to individual rights and liberties and to curb misplaced
or abusive power. With this kind of attribute, a free market
for the environmental protection can be achieved. Hence,
the same will result to a creation of environmental policies
that are sounder as compared to what have been legislated
before. Common law is perceived to be a strong feeling of
environmental identity and compassion for the environment.
It carries the reality of the disinherited and the submerged
masses of the people and of the society which led to the
expansion of the concept of social justice and environmental
advocacy and the modification of the right of the people
as one being impressed with a social function. As defined,
common law is neither communism nor despotism, nor atomism,
nor anarchy but the humanization of laws and the equalization
of the social and economic forces by the State so that justice
in dealing with the environment in its rational and objectively
secular conception may at least be approximated. It is then
explained to be that which there is a creation of means
and measures to promote the welfare of the environment,
the adoption by the government of measures calculated to
insure the economic stability of all the component elements
of society and environment through the maintenance of a
proper environmental and social equilibrium in the interrelations
of the members of the community, through the adoption of
measures legally justifiable, or extra-constitutionally,
through the exercise of powers underlying the existence
of all government on the time-honored principle of environmental
protection (Glaeser, 2001).
Conclusion
With this, the common laws have been able to protect the
environment through its involvement in the attainment
of an environmental good life, that is happy or satisfactory
life, and of a just society. This means that people in
the society will be able to learn how to respect the good
lives of its members and respects them equally. Hence,
it is not impossible for the society to respect the people
living in it but as well as the other “members” in it
such as the environment with the inclusion of air, water
and land. The role of common laws in the field of environmental
protection entails viewing the conceptual framework used
by environmentalists. It helps in the process of solving
the environmental problem through the development of the
right measures backed by the right execution of the enacted
common laws and put it in the right place at the right
time. It studies the needs and the wants of the environment
and not only attempts to design the proper measures but
formulates the same that will meet the needs of the environment
and the cry of the environmentalists. If it is well-formulated,
it can be assured that the environment will be protected
as how it should be. It must be understood that the common
laws must package the social idea of environmental protection
in a manner which the target audiences find desirable
and which the environmentalists will surely patronize.
It is true that various approaches can be made in relation
to the advocacy of protecting the environment. The state-based
tort law is one of them. The truth of the matter is that
the common law is more intensive in terms of setting the
conditions to be pursued in environmental policy (Polinsky,
1984).
Bibliography
Glaeser,
E. (2001). “Coase Versus The Coasians.” The Quarterly
Journal of Economics, 116(3), 853.
Kaplow,
L. (1984). “Optimal Law Enforcement with Self-Reporting
of Behavior.” Journal of Political Economy, 102(3), 583.
La
Porta, R. (1999). ‘”The Quality of Government.” Journal
of Law, Economics and Organization, 15(1), 222.
Mookherjee,
D. (1995). “Corruptible Law Enforcers: How Should They
be Compensated.” Economic Journal, 105(428), 145.
Polinsky,
A. (1984). “The Optimal Use of Fines and Imprisonment.”
Journal of Public Economics, 24(1), 89.
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