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Law and Environmental Australia


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.

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).


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).


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).


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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