There are contradictions between promises and outcome in environmental law. One of them is that international environmental law promises that environmental problems can be solved through the participation of all, yet some actors in practice exercise a stronger influence on legislative procedures and decision making than others.
The critique of ‘industrial biases’ in this context is not new. However, the question of how corporate power influences environmental law, decision making, and more generally the protection afforded to the environment, is timely due to the changing nature of how it is exercised (global production chains, CSR etc.), and the approaches that are currently used to mitigate dominance of corporate interests (in particular environmental public interest litigation).
In Europe, environmental NGOs are increasingly engaging in public interest litigation, not least by challenging decisions authorising industrial activities. In all EU Member States, the basic legal instrument for tackling industrial air pollution is at the emission source through the granting of individual authorisations. In short: The industrial operator applies for a permit, an administrative authority grants it and specifies conditions for the operation of the industrial project. This now follows from the EU Industrial Emissions Directive. However, a similar basic structure has been in place in domestic laws long before the EU existed. One of the first domestic laws introducing permits of this kind was the French Imperial Decree of 1810. In 1804, a report was published by the Physics and Mathematical branch of the then recently created Institut de France (the Institute) that influenced the 1810 Decree. It stated:
The very existence of the most useful industries is threatened by prejudice, ignorance and the jealousy of persons living close to them […]
If manufacturers are not protected against arbitrary decision–makers capable of interupting, suspending, and disturbing their operation — if the fortune or ruin of a manufacturer lies in the hands of the magistrate — how can we hope for industrial expansion? For industry to prosper, it is necessary to put an end to […] the continued struggle between manufacturers and neighbours.
The manufacturer has to be able to operate its business freely and under stable conditions, and the neighbouring property owner has to be ensured that the industry is not harmful to human health[1]
The 1810 Decree implemented the recommendation by the Institute to categorize industrial facilities into three classes according to the smell and risks they presented. It furthermore established that industries had to be sited at a certain distance from residential areas, and introduced a prior authorisation regime. The objective was to reconcile the interests of property owners with those of manufacturers, and the interests in further industrial development with concerns for human health. It was underlined that factories and production of chemicals helped the French Empire to gain independency in relation to other states, and that therefore the regulation must not prevent the further development of the industry. The 1804 Report, and the subsequent Decree adopted, for the first time framed the issue of how to deal with industrial emissions as a matter of reconciling on the one hand the freedom of business, and on the other the rights to property and health. The question of how to ensure predictability and legal certainty in face of complaints was a key concern at the outset.
The control of industrial emissions in Europe has indeed improved since the early 19th century. When the EU began to develop an environmental policy in the 1970’s, the issue of industrial pollution was addressed at an early stage, and the relevant Directive has been reviewed several times to improve the level of environmental protection attained. Especially the requirement for integrated control—that the totality of environmental harm a project gives rise to is considered in the permit procedure—has been praised as an important step forward. Additional regulatory tools have also been promoted to reduce emissions into air, such as e.g. the Emissions Trading Scheme. Still, the basic approach for dealing with industrial emissions is unchanged since the wake of industrialisation in Europe: The environmental permit remains key to the control of industrial activities. What arguably has changed more significantly are the justifications underpinning the law: The objective of protecting the environment is today brought to the fourth in a way that it was not in early 19th century France. At the same time, the concern not to hinder commercial interests in industrial activities remains strong.
Foundational conceptions of environmental problems—such as that of industrial pollution as an issue that can be balanced against commercial interests—imprint current EU environmental law. Time has solidified the basic structure of industrial emissions law to a point where it can seem as if a different understanding of how to address the issue of industrial pollution is not at all possible. But indeed, from the perspective of protecting the environment a different point of departure which would not presume that the interest in further industrial development can always be reconciled with what nature requires, would be preferable and arguably also necessary.
Is environmental law predisposed to serve the interests of corporations and states in further industrial development? If we understand foundational conceptions in environmental law, question their relevance today, and rethink them, we might get better at allowing environmental law—and environmental public interest litigation—to serve as an agent of change.
[1] Rapport de l’institut du 26 Frimaire An XIII, as reprinted in Léopold Magistry, Traité général sur l’application de la nouvelle législation des établissements classés, Paris, Association des Etablissements Classés en France, 1923, p. 2, as translated by the author of this blog post.