2. GLOBAL ENVIRONMENTAL LAW

Global environmental law appears to be the product of globalization, the proliferation of international environmental instruments, development aid focused on the rule of law, and fundamentally similar public health and ecological needs transcending national borders. Across the earth, these pressures have prompted nations to develop and reform existing national and international environmental law systems. The associated convergence and integration trends have led to the ongoing crystallization of global environmental law – a common set of environmental legal principles and norms in national, international, and transnational law that are utilized to protect the environment and public health as well as to manage and conserve natural resources.Footnote ² One example of a common and widely accepted global environmental norm is the environmental impact assessment (eia) duty, which now can be found in the great majority of national environmental law systems, in many international environmental instruments, and even as a transboundary norm.Footnote ³

In recent years, these developments have become increasingly relevant to the actual practice of environmental law. Adoption of new multilateral environmental agreements (meas) on subjects ranging from climate change to biodiversity, to chemicals and fisheries, as well as subsidiary protocols, have expanded and transformed many environmental norms. In addition, enormous efforts of law reform, law transplantation, and harmonization of norms at the national level have dramatically changed the regulatory landscape at the international, national and sub-national level.Footnote ⁴ Increasingly, delivery of effective environmental legal services, especially to clients operating in the global markets, requires not only a good understanding of us environmental law and regulations but also, at a minimum, awareness of international and relevant foreign environmental laws. Similarly, growing recognition that national regulatory systems, including those of developing countries and emerging economies, are crucial to the successful implementation of meas has created a comparable need for international environmental lawyers with respect to national laws. In short, the divide between us and international environmental law, traditionally seen by American lawyers as distinct areas of law, has blurred significantly over the past couple of decades.

3. INTEGRATION AND CONVERGENCE IN THE PRACTICE OF INTERNATIONAL AND NATIONAL ENVIRONMENTAL LAW

For the private bar providing legal services to multinational businesses, internationalization of its environmental practice has come slowly but steadily, and with practical consequences for the bottom line. Globalization has increased international business transactions, thereby raising demand for associated legal services. Domestic lawyers have learned more about foreign environmental regulatory systems in order to enhance their ability to advise on transactions as well as to manage unfamiliar legal exposure and risk that come with doing business in foreign jurisdictions. They are increasingly called upon to provide transnational legal services such as due diligence review of compliance by a potential foreign corporate merger partner or supply-chain contractors, or to assist with potential litigation in foreign jurisdictions.

For government lawyers and members of the regulatory compliance and enforcement bar, that shift has been more subtle. When I first became engaged in the practice of international environmental law as a government lawyer in the mid-1990s, the field was largely considered a specialty area within public international law, generally outside the expertise (and relevant scope of practice) of us environmental lawyers. Conversely, international lawyers working on environmental treaties rarely ventured into the details of how environmental law and regulation worked within the us or other national systems, preferring to outsource such questions to domestic lawyers or to assume it was not relevant to their work.

In many respects, that is likely to be attributable to the dualistic system of the us. Unlike monistic countries, where international law and treaties automatically become part of the national legal order, the dualistic system in the us often requires an additional step of legislative incorporation: Senate advice and consent under the us Constitution’s treaty clause.Footnote ⁵ This additional incorporation step has generally applied to environmental treaties because they are usually deemed not to be self-executing. Accordingly, the role of international environmental law per se used to be relatively insignificant for American environmental lawyers, since Congressional legislation and agency regulation were usually necessary to create explicit operational requirements in statutes and regulation – sources of law that are familiar and easily accessible to American lawyers.

However, globalization of environmental law practice, penetration of international law norms and principles deep into national legal systems, incorporation of national legal norms and practice into treaties, and accelerating trends of integration and convergence have changed the legal landscape significantly. Direct practical effects on national law have increased, creating greater needs for domestic law practice to be informed by international law.

One manifestation has been direct incorporation or reference of treaty requirements in national environmental laws. For example, the Marine Protection, Research, and Sanctuaries Act (mprsa) explicitly calls on the epa Administrator ‘to apply standards and criteria binding upon the United States under the [London] Convention[Footnote ⁶], including its Annexes’, with respect to ocean dumping permit criteria, as long as statutory requirements are not relaxed.Footnote ⁷ Title vi of the Clean Air Act (caa), which implements the Montreal Protocol on Substances that Deplete the Ozone Layer,Footnote ⁸ goes one step further in qualifying some of its provisions with the phrase ‘to the extent consistent with the Montreal Protocol’. In case of conflict between the Act’s stratospheric ozone provisions and the treaty, ‘the more stringent provision shall govern’.Footnote ⁹

Thus, under the mprsa, agency lawyers must examine the evolving requirements of the London Convention and its Annexes in order to ensure that epa regulatory requirements are at least as stringent as the relevant standards and criteria in the Convention. With regard to ozone depleting substances (ods), both government lawyers and the private bar must understand not only the relevant provisions of the caa and regulations promulgated by the epa but also the currently applicable requirements of the Montreal Protocol. Given the complexity of the international ods phase-down scheme, broad coverage of many different ods, and widely varying timetables, such questions are not necessarily straightforward.

Conversely, rising levels of international environmental cooperative activity and growing linkages with national implementing activities have also created a greater need for international lawyers to become more familiar with the operation and requirements of national environmental law systems. Compliance monitoring is probably the most obvious. While some mea commitments are framed explicitly as relatively easily observable international acts of national governments, increasingly, treaty obligations also reference actions at the national and sub-national level – enactment of legislation or regulations, engagement in best efforts to achieve environmental outcomes, or even control of private party behaviour.

For example, even though heavily qualified and conditioned, commitments under the Convention on Biological Diversity (cbd)Footnote ¹⁰ explicitly call on parties to take particular types of action that are traditionally deemed to be domestic in nature – such as establishing protected areas, regulating or managing biological resources, and protecting ecosystems.Footnote ¹¹ Similarly, the requirements of the ozone treaties call on parties not only to ‘adopt appropriate legislative and administrative measures’Footnote ¹² but also to phase out or reduce the industrial production of various ozone-depleting substances.Footnote ¹³

Compliance inquiries of these types face an additional set of challenges when they involve regulatory implementation activities and enforcement practices, including the appropriate exercise of enforcement discretion. For example, the 1994 North American Agreement on Environmental Cooperation (naaec)Footnote ¹⁴ requires a party to ‘effectively enforce its environmental laws and regulations through appropriate government action’ and subjects it to the Agreement’s Article 14 submissions process.Footnote ¹⁵ The agreement thus incorporates into an international agreement an activity that is primarily the subject of domestic regulatory agencies – effective enforcement of environmental laws. Examination of applicable legislative and regulatory text alone is insufficient for discerning compliance. An understanding of the actual regulatory implementation and enforcement practices is crucial. Increasing the adoption of implementation monitoring and compliance management mechanisms in modern meas has made such inquiries even more important.

When the national environmental laws and practices of countries with poorly developed legal and regulatory systems are implicated, such an inquiry becomes even more difficult. The wide gulf between law-on-the-books and law-in-action in the systems of many developing countries and emerging economies means that compliance evaluation requires an understanding of the effectiveness of national environmental governance – the system of environmental laws, implementation mechanisms, institutional arrangements, and accountability and enforcement processes (including judicial and administrative review) necessary for effective environmental protection.Footnote ¹⁶ The efforts by many developing countries and emerging economies in recent years to modernize their environmental laws – even adopting some of the world’s toughest environmental standards applied in the us and Europe – have consequently not disposed of the compliance question. Governance institutions in many such countries are still evolving and are not as robust as those in most of the industrialized world. As a result, the implementation, enforcement and effectiveness of environmental laws and regulations remain a work-in-progress.

These examples illustrate that one cannot take for granted the effectiveness of legal norms, including commitments negotiated at the international level. Robust governance systems at the national level are indispensible for designing and effectively implementing meas and other international environmental commitments. These, in turn, will require the efforts of experienced environmental lawyers and regulators to share best practices, especially with regulators and lawyers in the developing world and emerging economies, in order to help strengthen national governance systems.

Finally, national environmental laws and practice are themselves increasingly influencing meas and international law practice. For example, state practice influences the interpretation and application of meas as well as the emergence of new customary international law principles.Footnote ¹⁷ And rapid development of national environmental governance systems across the globe, especially through the transplantation and adoption of environmental law norms and regulatory mechanisms in developing countries and emerging economies, is driving the evolution and potential emergence of norms that could eventually come to be viewed as ‘general principles of law’.

4. ONE FACE OF GLOBAL ENVIRONMENTAL LAW PRACTICE: THE EPA’S OFFICE OF GENERAL COUNSEL

One illustration of the growing interconnection between national and international environmental law can be seen in the law practice of the epa’s Office of General Counsel (ogc), as well as other agencies and organizations. For the ogc, the practice of global environmental law entails a mix of domestic, international, and transnational environmental law work. Such a legal practice is still relatively uncommon, but it is spreading. It also illustrates how government lawyers who have traditionally focused primarily on us environmental law have had to acquire familiarity and expertise in international and transnational law as part of their evolving practice and client needs.

The great majority of ogc work, consistent with the bulk of the Agency’s overall work, focuses on domestic environmental issues. However, the international dimension of environmental issues has grown, and so has the Agency’s involvement, including in Department of State-led negotiations of international environmental instruments and their implementation.

The trend has been driven by the practical needs of supporting the international environmental interests of the us together with an evolving understanding of the adverse impacts on human health and environmental quality of pollution and the irresponsible use of toxic chemicals outside the us as well as inside its own territory. For example, various studies indicate that transboundary movement of mercury emissions, persistent organic compounds and other pollutants from sources an ocean away contribute to the deposition of harmful pollutants in the us.Footnote ¹⁸ Even the inappropriate application of pesticides to food crops, use of toxic substances like lead paint to make children’s toys, or the manufacture of lawnmowers and other consumer products that fail to conform with us emissions standards can affect the us when global commerce leads to their importation and sale to American consumers.

Applying domestic environmental enforcement systems to imports at ports and border crossings can be a first line of defence against some of these challenges. However, most are often more effectively addressed through international cooperative activities. With respect to environmental challenges that involve the global commons – such as the atmosphere or the oceans – international cooperation is vitally necessary to prevent national efforts from being undone by pollution elsewhere. The same is true for ecosystems that extend outside the us, or migratory species that spend part of their life cycle abroad.

Apart from the human and environmental benefits, environmental engagements with other governments and international organizations can also advance international cooperation and diplomacy more generally. By sharing its decades of experience in environmental law, science, engineering, health, and expertise in best environmental practices, the epa has built strong and positive relationships with governmental counterparts in other countries. Its broad commitment to public participation, environmental justice, and the rule of law resonates with environmental professionals and advocates throughout the world, helps to build goodwill, and provides environmental leadership by example. When local or regional conflicts between polluters, pollution victims, and government agencies are reduced or competition for scarce natural resources is lessened, social and political stability is enhanced and global security is ultimately strengthened. Furthermore, sharing the lessons of the us experience, and otherwise helping to build national environmental governance systems abroad, can make pollution havens less likely to emerge and provides businesses operating globally with a more level playing field.

Recognition of the interconnected nature of national interests in protecting human health and the environment and international environmental concerns motivated articulation of the epa’s top international priorities in 2010, affirming the agency’s long-standing commitment to international engagement.Footnote ¹⁹ The Agency’s commitment to ‘building stronger environmental institutions and legal structures’, primarily through bilateral technical assistance, is a direct recognition that ineffective environmental law and governance in other countries creates direct or indirect adverse consequences for the us because it can hinder efforts to solve us environmental problems.Footnote ²⁰

These developments, especially the proliferation of environmental agreements and environmental chapters of trade agreements, have greatly increased the need for associated legal counselling and support. The preparation of implementing legislation and regulations, as well as advising on how the ongoing activities of international organizations and multilateral environmental agreements affect the Agency’s operations and obligations, are just a few aspects of this need.

Beginning in 1989, the ogc informally created an International Activities Division, which was formally launched in 1991. Prompted in part by the preparations for the 1992 Earth Summit and Administrator Bill Reilly’s particular interest in international environmental issues, the Division’s responsibilities and structure mirrored those of the other divisions within the ogc, but focused on the international law needs of the Agency. It was then led by an Associate General Counsel and Deputy Associate General Counsel and included six staff attorneys. Similar to other law divisions within the ogc, it reported directly to the General Counsel.

Its function was then described as counselling the epa on international environmental law, including environmental agreements, to advance the Agency’s international engagements as well as its domestic implementation activities. It also assisted the epa in interagency processes related to international environmental law and policy, contributing the epa’s unique environmental and public health interests, experience, and mission to us participation in the negotiation of international legal instruments at the bilateral, regional, and multilateral levels as well as work within international organizations and meetings.

The ogc’s International Activities Division was initially headed by Scott Hajost, a former senior lawyer from the State Department’s Legal Advisor’s Office. After Hajost left the epa for the Environmental Defense Fund in 1990, leadership of the Division came from the legal academy: Professor Edith Brown Weiss of Georgetown Law School and her successor, former University of Colorado law professor, Daniel Magraw, who became President of the Center for International Environmental Law (ciel) in 2001. During the George W. Bush Administration, the International Environmental Law Office, as it was then named, shrunk in staff size and in 2008 was merged with another law office into a combined entity, the Cross Cutting Issues Law Office, headed by a single Associate General Counsel. There it remains a specialized practice group – the International Environmental Law Practice Group (ielpg), made up of four staff lawyers and its leader, an Assistant General Counsel. Further support comes from lawyers based in the ogc’s media law offices and Regional Counsels’ offices.

The Agency’s leadership effort to re-elevate the ogc’s international environmental law practice in 2010, under the Obama Administration, led to the appointment of a Deputy General Counsel to provide leadership for the epa’s overall international environmental law needs. As a practical matter, that has required working closely with the ielpg as well as with other practice areas with issues related to international environmental law.

In its international work, the ogc works closely with a number of internal client programmes, such as the Office of International and Tribal Affairs, which generally coordinates international work within the epa and focuses on cross-cutting matters. The ogc also works closely with individual media programmes, such as the Office of Air and Radiation with regard to its work on international ozone depletion, transboundary air pollution, and climate change issues, the Office of Water with respect to ocean and other transboundary water pollution issues, and the Office of Solid Waste and Emergency Response regarding international hazardous waste trade issues. Externally, the ogc works with the entire range of federal agencies involved in international issues, including the Department of State, the us Trade Representative’s Office, the Coast Guard, the National Oceanic and Atmospheric Administration, and the us Agency for International Development. In addition, the ogc has assisted the epa’s bilateral work with international organizations, such as the United Nations Environment Programme (unep), as well as the epa’s counterparts in other countries, such as the Brazilian Ministry of the Environment and China’s Ministry of Environmental Protection.

The ogc’s present-day work continues its long-standing role of providing international environmental law expertise for the Agency’s activities. The bulk of the ogc’s international work, especially that of the ielpg, consists of counselling the epa on international environmental activities and representing its legal interests in interagency processes and international negotiations from the perspective of its particular public health and environmental mission. Such counselling is designed to ensure that the us can take action and make policy judgments with a sound appreciation of the applicable international law principles and the epa’s statutory authorities, Congressional mandates, and its distinct mission within the federal government to protect public health and the environment.

Most counselling work arises in the context of ongoing multilateral negotiations, such as continuing discussions to create a global legally binding mercury treaty,Footnote ²¹ or bilateral negotiations, such as efforts to revise the existing us-Canada Great Lakes Water Quality Agreement.Footnote ²² Ensuring that new international commitments do not inappropriately conflict or otherwise hinder the epa in implementing its mission to protect human health and the environment has been especially important in the context of international trade negotiations, such as a Transpacific Partnership Agreement designed to expand and liberalize trade among a number of Pacific nations.Footnote ²³ Since the Tuna-Dolphin caseFootnote ²⁴ under the World Trade Organization (wto)’s predecessor, the General Agreement on Tariffs and Trade (gatt), the epa has actively sought to ensure that new trade agreements do not adversely affect its domestic regulatory authority nor impair the environment and public health.

Analysis by the ogc in such situations helps to determine whether new international commitments can be implemented under existing statutory or regulatory authority or whether new Congressional legislation or regulatory changes are needed. In particular, when us diplomats have made it a negotiation position that no new congressional authority will be sought for a new international instrument – possibly because obtaining new legislation might be a serious challenge – an understanding of existing domestic legal authority is crucial to steering international negotiations.

Thus, the ogc’s work is crucial to the us implementation of international treaties, whether through regulatory revisions or by new legislation. The identification of gaps in legal authority or needs for regulatory clarification allows for legislation and regulatory changes to be crafted. Some provisions in existing us environmental statutes anticipate future international agreements.Footnote ²⁵ Frequently, however, existing statutory authorities are deemed to be insufficient for the implementation of new agreements.

In addition to providing counselling, the ogc is also intimately involved in ensuring the Agency’s compliance with international treaty commitments and defending it against allegations of non-compliance. Because some of the modern meas – such as the Montreal ProtocolFootnote ²⁶ and the Kyoto ProtocolFootnote ²⁷ – now contain mechanisms that seek to monitor and proactively manage non-compliance issues, these issues have grown in importance.Footnote ²⁸ For example, as noted above, Article 14 of the naaecFootnote ²⁹ – the environmental side agreement to the North American Free Trade Agreement (nafta)Footnote ³⁰ – allows private individuals to submit allegations that a nafta country has failed to comply with its commitment to ‘effectively enforce’ its environmental laws. Potential remedies include an investigation and compilation of a factual record regarding the allegations.Footnote ³¹ One pending submission, Coal-fired Power Plants,Footnote ³² has alleged failures by the us to effectively enforce the Clean Water Act (cwa)Footnote ³³ with respect to mercury emissions. Analysis of the allegations has required examination of both us environmental law and us obligations under the naaec.Footnote ³⁴

Finally, the ogc has also supported broader us diplomatic engagements and environmental leadership efforts globally, including the epa’s interest in ‘building stronger environmental institutions and legal structures’ abroad. Such capacity-building work has included hosting and participating in workshops to share the American environmental law experience with foreign government officials and other foreign visitors to the epa each year. Beyond enhancing protection of the global environment by strengthening environmental governance abroad, these efforts advance democratic governance and the rule of law worldwide.Footnote ³⁵

In recent years, the epa has worked with the us Agency for International Development (usaid) to engage in capacity-building efforts in Central America under the Dominican Republic-Central America-United States Free Trade Agreement (cafta-dr).Footnote ³⁶ The objective has been to develop and implement a model wastewater pollution control law for the region. As an outgrowth of the Environmental Cooperation Agreement (eca)Footnote ³⁷ that the Parties signed as an adjunct to cafta, the project fostered regional harmonization of the domestic legal and regulatory regimes in each country with the goal of controlling wastewater discharges to surface waters. The multi-disciplinary epa team, which included ogc lawyers, prepared a model law that was adopted by the Environment Ministers of the participating countries by way of an agreement that the law would form the basis for national implementing legislation. The epa is currently working with individual Central American countries to integrate the model law into their specific legal and regulatory regimes.Footnote ³⁸

Of course, the epa’s ogc is not alone among us federal government agencies in experiencing globalization of its environmental law practice. Notable is the Department of Justice, which in recent years has acquired an international component in its prosecutorial work through the Lacey ActFootnote ³⁹ and the Act to Prevent Pollution from Ships (apps).Footnote ⁴⁰

The Lacey Act has, for several decades, made it illegal to ‘import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce’ any fish or wildlife that has been taken, possessed, transported, or sold in violation of federal, state, tribal or foreign law.Footnote ⁴¹ Through amendments enacted in 2008, that prohibition was extended to plants and plant products taken, possessed, transported or sold in violation of federal, state, tribal, or foreign laws that protect plants. By referencing foreign law, the Lacey Act makes foreign legal prohibitions regarding fish, wildlife, and plant acquisition and commerce an element of us criminal prohibitions. As a result, the Act can be used as a tool for helping to conserve wildlife, fish and plants regardless of international borders. It also helps to ensure that trafficking in products illegally taken in other countries, such as wood products made from illegally harvested timber, does not undercut law-abiding us companies who trade in legal forest products. For example, fishing by us commercial fishermen for albacore tuna off the coast of Mexico without the necessary Mexican permits recently led to arrest and guilty pleas under the Lacey Act.Footnote ⁴²

There is no doubt that the Lacey Act is still unusual, requiring federal environmental prosecutors not only to possess expertise in us environmental laws but also calling on them to gain an understanding of foreign law requirements regarding the acquisition and commerce of natural resources. The introduction of legal expert testimony regarding the requirements of foreign environmental laws has not been uncommon in such cases and is advancing the practice of global environmental law, even among federal prosecutors.

The apps also incorporates non-federal law norms – specifically prohibitions against waste disposal from ships, as set out in the International Convention for the Prevention of Pollution from Ships (marpol).Footnote ⁴³ For example, a prosecution in 2006 under the apps for violation of marpol prohibitions against the discharge of oil-contaminated waste resulted in a $37 million penalty against one shipping company.Footnote ⁴⁴

While both statutes are unusual in their reference to or incorporation of foreign and international norms, they are targeted at one of the fundamental challenges of international environmental problems – the limited jurisdictional reach of most environmental laws even though environmental problems are increasingly transnational and global in nature. The design of these statutes overcomes some of these challenges.

Beyond the federal government, there are also increasing occasions for non-governmental organizations (ngos) and the private sector to be engaged in the practice of global environmental law. Advising on the implications of the Foreign Corrupt Practices ActFootnote ⁴⁵ for the environmental activities abroad of us-based corporations – including the interactions of such businesses with foreign environmental regulators and other government officials – appears to be significant. Similarly, private firms are increasingly engaged in investor-state dispute processes – such as those under Chapter 11 of nafta – involving environmental issues; and environmental ngos are increasingly utilizing forums such as the Inter-American Commission on Human Rights (iachr)Footnote ⁴⁶ to raise environmental claims, or tools such as the Alien Tort Claims ActFootnote ⁴⁷ to bring environmental human rights issues before American courts. Examples of such instances are growing, and we can expect that trend to continue and accelerate in the coming years.