Environmental Rule Of Law: A Critical Analysis

Author – Debaki Goel, Hidayatullah National Law University, Raipur

Introduction

The evolution of environmental law has responded to the pressing need to address the untold challenges posed by human activities in the natural world. Environmental rule of law (EROL) stands as a cornerstone of sustainable development, intertwining environmental imperatives with the fundamental tenets of legal governance. It serves as a guiding principle to enhance environmental governance, aligning it with universal moral values and ethical norms. Without the enforcement of legal rights and obligations under EROL, environmental governance risks descend descending into arbitrariness, marked by discretionary actions and unpredictable outcomes[1]. In the backdrop of escalating environmental challenges—from climate change to biodiversity loss—EROL emerges as a vital framework to address the growing implementation gap in environmental policies. By prioritizing environmental sustainability and connecting it with fundamental rights and obligations, EROL lays the groundwork for a more equitable and resilient society.

Definition and Conceptual Framework

The conceptualization of the environmental rule of law (EROL) stems from the urgent need to bridge the gap between environmental aspirations and legal enforcement mechanisms. EROL represents a holistic approach that integrates environmental imperatives with the principles of the rule of law. It provides a framework for ensuring that environmental governance is not only effective but also just and equitable.
The development and implementation of EROL emphasized the importance of governance features across all levels, including information disclosure, public participation, implementable and enforceable laws, and robust implementation and accountability mechanisms. These mechanisms include coordination of roles, environmental auditing, and various forms of enforcement—criminal, civil, and administrative—alongside timely, impartial, and independent dispute resolution processes.

Evolution of EROL: From UNEP Decision to Present

The journey of EROL began with the landmark decision of the United Nations Environment Programme (UNEP) in 2013, which formally introduced the term and laid the groundwork for its conceptualization. The concept of EROL emerged prominently during the World Congress on Justice, Governance, and Law for Environmental Sustainability, organized by the UNEP ahead of the Rio+20 conference. It gained official recognition in 2013 during the 27th session of the UNEP Governing Council/Global Ministerial Environment Forum[2]. At this event, there was a call for UNEP to take a leading role within the United Nations and governments in advancing EROL. Since then, EROL has evolved into a cornerstone principle guiding environmental policy and practice worldwide.

Key Elements of EROL[3]:

Reforms in Environmental Law & Governance

EROL advocates for comprehensive reforms in environmental governance structures. It emphasizes the need for governance mechanisms that operate transparently, involve multiple stakeholders, and uphold principles of accountability. By integrating the rule of law into environmental decision-making processes, EROL aims to enhance the effectiveness and legitimacy of governance systems.

Priority of Environmental Sustainability

EROL places environmental sustainability at the forefront of governance efforts. It calls for a paradigm shift towards sustainable development, wherein the needs of present and future generations are balanced with the capacity of ecosystems to regenerate. By adopting a rights-based approach to environmental governance, EROL seeks to promote long-term ecological resilience and human prosperity

Consequences of Non-Adherence

The failure to adhere to EROL principles can have profound consequences for environmental governance. In the absence of robust legal frameworks and enforcement mechanisms, environmental decision-making may become arbitrary and unpredictable. This not only undermines the rule of law but also exacerbates environmental degradation and social injustice. EROL thus serves as a safeguard against the arbitrary exercise of power and ensures that environmental governance is grounded in principles of fairness and equity.

Critique of EROL Implementation

EROL in India has witnessed both successes and challenges in its implementation. Critique of EROL highlights areas of improvement necessary for effective environmental governance.

Bridging Implementation Gap

EROL’s introduction aimed to bridge the gap between environmental legislation and its enforcement. However, the effectiveness of this initiative requires critical evaluation. While Supreme Court judgments have invoked EROL principles, their application has sometimes been inconsistent, raising questions about the extent to which EROL truly fills the implementation gap[4].

Challenges in Enforcing EROL Principles

Enforcing EROL principles faces numerous challenges, including ambiguity and inconsistency in the judicial application, as highlighted in the HP Bus Stand Management case[5]. The invocation of national security concerns to bypass environmental considerations reveals a significant challenge in upholding EROL consistently. Class bias in judicial decisions can hinder EROL implementation, often disadvantaging marginalized communities and the environment.

Comparative Analysis

The first global assessment of the environmental rule of law, released on 24th January 2019, by UN Environment, revealed a concerning trend of weak enforcement despite a significant increase in environmental laws since 1972. This lack of implementation and enforcement hinders efforts to address climate change, pollution, and biodiversity loss[6]. Although there has been substantial growth in environmental laws, the failure to effectively enforce them remains a major challenge.

Challenges and Limitations

Implementation Challenges:

Implementing EROL in India faces significant hurdles, including inadequate enforcement mechanisms and coordination issues among stakeholders. Despite robust environmental laws, effective enforcement remains challenging due to the lack of coordination among governmental agencies. This gap hampers progress toward environmental sustainability.

Legal and Institutional Barriers:

Legal and institutional barriers hinder the smooth implementation of EROL principles, including outdated laws and bureaucratic inefficiencies. Archaic legislation and institutional resistance complicate efforts to address contemporary environmental challenges. Reforms are needed to modernize environmental laws, streamline bureaucratic processes, and promote institutional accountability[7].

Societal and Economic Implications:

The challenges in implementing EROL have broader societal and economic implications, affecting public health, livelihoods, and sustainable development goals. Inadequate enforcement can lead to environmental degradation, resulting in adverse health outcomes and economic instability. Neglecting environmental sustainability threatens long-term development, highlighting the urgency of addressing these challenges for a sustainable future.

Conclusion

In conclusion, the EROL presents itself as a unique legal framework for driving transformative environmental governance, acting as a guiding design rather than a conventional legal tool. It highlights the influence of non-legal factors on judicial decisions, emphasizing the importance of integrating environmental governance within a rule of law paradigm to ensure consistency and address pressing environmental challenges. Upholding EROL is crucial for instilling a rule-based approach to environmental governance, promoting equity and sustainability. However, concerns persist regarding the clarity and application of EROL principles in India, necessitating further research and action to refine and operationalize them effectively. Future efforts should focus on clarifying conceptual ambiguities, enhancing institutional capacities, and raising public awareness to bolster EROL implementation and advance sustainable development goals in the country.

References

[1] Voigt, Christina, ed. Rule of law for nature: new dimensions and ideas in environmental law. Cambridge University Press, 2013.
[2] UNEP Governing Council Dec, 27/9, Advancing Justice, Governance and Law for Environmental Sustainability, UN.Doc
[3] UNEP, Brunnée, Jutta. “The rule of international (environmental) law and complex problems.” The International Rule of Law: Rise or Decline (2017).
[4] Issue Brief, Environmental Rule of Law: Critical to Sustainable Development, https://wedocs unep.oRg/stream/handle/20.500.11821/10664/issue-brief-unil.pdfs
[5] AIR 2021 SC 657
[6] UNEP, Environmental Rule of Law: First Global Report
[7] Supra Note 4