Codification of Environmental Law. Major Challanges and Options

• Author: Hannes Veinla
• Pages: 58-67

Hannes Veinla

Codification of Environmental Law. Major Challanges and Options

On 21 and 22 February 1995, an international conference dedicated to the issues of codification of environmental law took place in Ghent. ¹ The reports presented at the conference showed that many European countries have undertaken major reorganisation of environmental law. The common feature in the reorganisation process is the codification of environmental law. According to the conference reports, environmental law is being codified in Sweden ² , the Flanders ³ and Walloonia regions ⁴ , Germany ⁵ , Netherlands ⁶ , Denmark ⁷ , and France. ⁸ The list could be continued with e.g. Poland, where the respective draft was submitted to the government in 1997.

One should not forget that the repeatedly used English term "codification" is not in full accordance with the traditional approach to the concept of codification in the continental European legal tradition.

Every student of the Faculty of Law knows that codification means the collection of all legal material regulating one area of law into a single code. ⁹ The German Creifelds Rechtswörterbuch defines codification as the collection of legal norms in an area of law into a comprehensive code. This is supplemented by the principle that codification should comprehensively regulate one area of law and exclude other sources of law. ¹⁰

English dictionaries, however, usually define the word "codify" as follows - if you codify something, you arrange it according to a system, so that all the rules and procedures are clearly stated. ¹¹ Black’s Law Dictionary defines "codification" as follows: "the process of collecting and arranging systematically, usually by subject, the laws of a state or country, or the rules and regulations covering a particular area or subject of law or practice". ¹² In English, we can thus even talk about the codification of billiard rules.

The problem becomes even more complicated when we include the French term "codification a droit constant", meaning thematic systemisation of legal norms contained in various legal acts without changing the essence of the norms. ¹³

So, in English terminology, the concept of codification includes what is understood as incorporation in continental Europe.

In Estonia, codification is defined as "the creation of a systemised, summarised and common code that does not contain discrepancies and seeks for exhaustive regulation of one or several areas of law as intended by the legislator for regulative purposes". ¹⁴ Incorporation is the collection of existing legal norms, although it can be systematic and even seek to eliminate discrepancies. ¹⁵ The main difference between codification and incorporation is the innovative nature of the former - codification is modification. ¹⁶

Literature distinguishes between "authentic" codification and "consolidation-codification" (or "simple" codification). The former pertains to renewal of substantive law while the latter only pertains to inventory and classification of the existing law. ¹⁷

It can thus be said that the attempts of most European countries to reorganise environmental law are related to systemising the existing law or incorporating environmental law. Codification of environmental law in the exact sense of the word takes place in Sweden ¹⁸ , Flanders and Germany. Estonia with its first attempt to substantially reform environmental law has now also added itself to this list of countries.

Another characteristic feature of codification is its exhaustiveness and, as was mentioned, the exclusion of other sources of law. The environmental code can probably never meet these criteria, as environmental law consists of a multitude of technical norms, standards and lists of hazardous substances and activities, the inclusion of which into a single code is not possible mainly due to the volume of such norms and standards, but also because the technical norms are often amended and replaced to adjust to new scientific and technical achievements and make environmental quality requirements stricter.

The discussion on codification of environmental law should focus on the following main issues: a) Why is the codification of environmental law necessary and what are its benefits?
b) What goal to set for the codification of environmental law?
c) What should the scope of the environmental code be?
d) What are the dangers of codification of environmental law?

Answers to these questions form the conceptual basis for the environmental code and enable to develop a methodology for preparation of the draft code and identify the structural and essential cornerstones (main principles) of the future code. The reports presented at the above conference were also largely dedicated to these issues. ¹⁹

The following is an attempt to answer the above questions in view of the current situation and future outlook of the Estonian environmental law.

What are the reasons for codification of environmental law and what are the benefits for Estonia?

1. The present Estonian environmental legislation is made up of a large number of legal acts adopted at different times and often based on different principles. The activities of a specific person - "the polluter" - that affect the quality of the environment are usually regulated by several different legal acts. ²⁰ If there is no connection between those acts, it is difficult for performers of activities, public administrators and supervisory and court bodies to get an overview of the regulating structure.

2. As said, the problem is not only the clumsiness of the system of environmental legislation, but also its conflicting nature. Sometimes each legal act separately is adequate for achieving its goal, but together with other acts it becomes vague or the simultaneous application of the norms of different acts turns out to be impossible. ²¹ The existence of such conflicts has not been fully revealed in our legal order yet, because environmental legal practice (court practice) is rather modest and superficial.

3. The development of environmental law, as any other area of law, should be based on certain fundamental principles. Such fundamental principles have an indispensable systemising and organising effect. Unfortunately, the present course of development of legal control of environmental risks does not point to the existence of such a fundamental legal basis. Many basic principles of environmental law have so far been formulated as political rather than legal categories. ²²

4. Environmental law is a branch of law at the touching point of public law and private law. The historical development of environmental law suggests that the discipline of law in its archaic form originates from private law, namely from law of adjoining properties, the institute of property law. Later, regulation concerning pollution control caused a sharp turn toward public law. Regulation in public law is mainly expressed in direct regulation, i.e. restrictions, prohibitions and obligations, and it is realised with the direct intermediation of the state. Assessment of the situation in our existing legal order shows that public law regulation dominates by 90-95%. Developed countries are known to have tried to find new, flexible means of controlling environmental risks. ²³ This is best revealed in the attempt to employ market mechanisms and apply the respective economic stimuli and antistimuli in the control of environmental risks. The above change is chiefly caused by two reasons. Firstly, direct orders, prohibitions and restrictions have proved to be ineffective in many cases. Secondly, the application of direct means of regulation requires large public expenditure. The advantage of private law methods (such as those related to consumer protection and civil liability) is that control of environmental risks is effected by exercising the subjective rights of persons (injured parties) in private law. The experience of other countries shows that the risk of environmental civil liability can be an effective means of forcing industrial enterprises to identify the environmental impacts of their activity and take precautionary measures to prevent or minimise pollution and thus their potential liability. ²⁴ This does by no means imply that environmental law should in future become fully private law. It should find the equilibrium between private and public law regulation and eliminate the present disproportion between those two elements. In conclusion, it should again be stressed that the goal is not to exclude different methods or attach too great importance to any of them, but to combine them appropriately. ²⁵ Environmental protection is and will remain a chiefly public law area, while private law has to be employed better than before to prevent environmental damage. Environmental protection cannot be extracted from the context of market economy. A basis for finding an adequate combination of regulation methods should be the principle requiring as little as possible disturbance of spontaneous market mechanisms and the application of direct regulation means particularly in those areas where market mechanisms "fail".

5. In the 1990s, a shift from sectorial protection of the environment to the protection of the environment as a whole took place. ²⁶ The environmental risk control system effective in Estonia is structured by areas of environmental protection - nature conservation, protection of the aquatic environment, protection of ambient air, etc. The environmental code allows to unify different areas where necessary and create links between different regulations. The focus of regulation of environmental protection should be reoriented from the former sectorial approach to environmentally hazardous activities, products, substances and organisms; the aim of regulation should be overall control of impacts on the environment as a whole.

6. The success of environmental law largely depends on the integration of environmental...