Contenu du sommaire : Droit et environnement

On the occasion of the release of his new book Le Mal propre, Michel Serres is studying the relationship between ownership and pollution : “Why pollute ? To take ownership !” To face this pollution, it is necessary, according to Michel Serres, to respond and promote innovative legal solutions : law can save nature.

How is it possible to assert that a law with such universal appeal as environmental law is a law “for the rich” ? Three reasons can be given, all stemming from the fact that environmental law has essentially originated in rich countries. This law is said to accompany contemporary transformations of the consciousness of rich countries that are less and less self-assured, and even turn to poor countries to look for ways of life that could save them from themselves. But is not such a division between rich and poor a bit outdated to interpret a law whose goal is the construction of a common universe ?

Originally, environmental law developed as the addition of special policies aiming to prevent damages to the natural milieu through regulations, authorizations and penalties. The goal of sustainable development has led to the creation of new tools based more on the notions of contract, dialogue and financial and economic mechanisms.

The problems linked to externalities are also linked to the absence of an adequate definition of property rights. The simplest tool is indeed the introduction of norms, but the State has other more efficient instruments which consist in reintroducing the logic of the market. On the other hand, the relative benefits of price regulation through tax, or quantity regulations through a system of trading of rights, depend on the type of pollution under consideration. The article considers the current state of the market for emission rights within the framework of the Kyoto protocol and of the European directive considering economic prescriptions.

The Environment Charter has been presented by some as a political gadget. Its drafting and its adoption have been accompanied by legal disputes regarding its actual reach. Yet, having to deal with a new societal problem, it should not come as a surprise that the elaboration and content of the Charter should have gone beyond the beaten track. The Charter is innovative both in its form and its content, notably when it asserts a human right to the environment. Its normative dimension, which has been questioned because of its form, will eventually become a reality : it is indeed a constitutional document that will impose itself to all and that entails promising, although still mysterious, developments for future generations.

In 1957, the Treaty of Rome did not envisage any action from the European Community regarding the environment and, until the end of the 1960s, no communitarian environmental policy was implemented. The first environmental program was adopted in 1972 followed by texts dealing specifically with the protection of the environment. Today, the action of the Community in this field is prescribed and framed by treaties, and European environmental law is an aggregate of a multitude of heterogeneous acts, whose main weakness is their poor implementation by the member states.

As the modern American environmental law approaches its 40th anniversary, it is characterized by a handful of fundamental debates. They concern not so much whether government regulation to protect the environment is appropriate ; on that, there is general consensus (with the obvious exception of global climate change). But what level, and what branch, of government should impose these regulations, on the basis of what general principles, and in what form : these issues are strongly disputed. These disagreements are clearly visible in current debates over whether and how to regulate emissions of greenhouse gases.

While the issue of global warming is gaining more and more importance on the international political agenda, a debate on the reasons why we should take action on it becomes necessary. This article suggests to look for reasons to act in the ethical dimension rather than in an enlightened egoism. Because of their “thick” implications, philosophical theories are however less indicated than a reflection on the sense of the intergenerational chain that binds together parents caring for their children across the whole spectrum of generations.

The loopholes in environmental law are not so much the result of the insufficient number of legal documents as of their inefficiency. This inefficiency is due as much to the fact that they are not implemented as to a basic weakness with regards to other branches of the law. At the national level, the multiplication of documents − a source of discretionary and sometimes arbitrary power −, the inappropriateness of jurisdictional procedures for environmental law, the rules of the burden of proof which make the situation of victims highly unequal and unfair, and the ambiguous role of public authorities all contribute to the fact that environmental law remains a minor law in its criminal and civil branches, and is rather inefficient in its administrative branch. In the absence of criminal charge, the law of liability, which should be the most efficient tool, is hampered by a number of derogatory common law regimes that have allowed the repetition of scandals such as Metal Europe. At the international level, the lack of world governance and of juridictional penalty attached to the Multilateral Conventions on the Environment means that environmental law remains a highly virtual reality.