Article: The quest for environmental law equilibrium

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This article demonstrates that environmental law is not only dictated by environmental imperatives and principles, but is also affected profoundly in practice by the rules on enforcement, access to information, participation and access to justice on one hand and the behaviour of the environmental ‘actors’ on the other.

It shows that the mandatory enforcement requirements in the contaminated land legislation and the EU Environmental Liability Directive are likely to make their impact much greater and therefore (possibly) more effective than if enforcement were discretionary. The ability of private parties to enforce the law as in the case of criminal prosecutions and judicial review (especially in the case of the EU Environmental Liability Directive) is likely to give encouragement to the regulatory authorities to do their job properly. The approach of the environmental ‘actors’ is crucial not only to whether and how environmental law operates in practice but also to its development.

In order to decide whether the environmental law equation balances to achieve equilibrium, the overall effect of individual rules and of the combined total of all environmental laws must be considered. This applies not just to the rules on paper, but rather to how they work in practice. Accordingly, it is important to examine each of the ‘onion layers’ carefully. To that end the author explores briefly several significant environmental regimes before presenting his conclusion.

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