By Tadashi Otsuka, Professor, Faculty of Law, Waseda University
Environmental Law is a comprehensive yet specialized field
Environmental law is a new field of law that has been developed since the 1970s. Globally, from the Global Environmental Summit in Reo de Janeiro in 1992, and in Japan, from the Basic Environment Law in 1993, various laws related to environment have been established one after another. In the past 10 years, I have been helping the establishment of many laws as a researcher of environmental law.
Prior to the environmental laws, Japan has a history of pollution related laws to cope with air pollution and water pollution in the 1960s and 1970s. I also began my research with the law suits to stop pollution and interference of life. Later, while I was a guest researcher at the School of Law, University of California, Barkley, the Exxon Valdez oil spill occurred in Alaska. The media sensationally broadcasted the serious damage to the ecosystem and the living thing due to the oil spill.
Because I was living in the USA during the middle of the crisis, I felt the society’s big shift towards environmental protection and “sustainable society” in the US. At the same time, I became interested in incorporating an economic approach to environmental laws. In 1990, the U.S. government revised the Clean Air Act to cope with the forest damage by acid rain in Europe and America. This was the first time when a method of emission trading was incorporated in a law, and I learned advanced methods through this case. This became a large motivation for me to begin studying environmental law seriously after I returned to Japan. The conventional environment related laws adapted the method of setting certain regulations and imposing penalties when the regulations were violated. The new environment laws, on the other hand, began to incorporate a method of facilitating environmental measures by providing economic incentives. For example, the new environmental laws impose tax to corporations or citizens according to their environmental load, or they allow corporations or governments to trade the CO2 emission quotes.
The environmental law is the field that requires comprehensive specialized knowledge. It is largely related to both public and private laws. The knowledge of economic methods is also required. Sometimes, scientific knowledge regarding environmental issues is needed. However, the jurisprudence in Japan still tends to be isolated for each specialized field and tends to turn down the discussions outside of the specialized field. Because of this atmosphere, I feel that I shift my personality from the time when I discuss civil law to the time when I discuss environmental law (laugh).
Enactment of laws based on the real society
The Japanese laws have been established based on Germany’s environmental and administrative laws, while the details were adjusted to the reality and policy that were unique to Japan. Since it is a new field, it is important to enact the laws with a bottom-up approach based on the reality of the society. After I returned to Japan, I became involved in the enactment of various laws such as Soil Contamination Countermeasures Act, Basic Act for the Promotion of the Recycling-Oriented Society, Home Appliance Recycling Law, Construction Waste Recycling Law, and Invasive Species Law. All of them were established in line with the real society and had been revised accordingly.
For example, due to strong request from real estate industry, the Soil Contamination Countermeasures Act, enacted in 2002, tended to force the owners of the contaminated land or people who were causing the contamination to carry out severe countermeasures such as a complete removal of the contamination by excavation. However, gradually, it turned out that this countermeasure required inadequate amount of money. It was also found that it was not necessarily adequate for environmental protection, either.
Based on the above findings, the Act was revised in 2009. The revised Act made it clear that the complete removal by excavation is not necessary (Figure 1). Of course, from the environmental protection perspective, 100% removal may be desirable. However, it is necessary to pursue a law that suits the real society based on the social circumstances.
The Containers and Packaging Recycling Law of 1995 is innovative as a law for a recycling society. At that time, the containers and packaging wastes were rapidly increasing, and the municipalities were facing difficulties in disposing them. The recycling rate of the general wastes including containers and packaging was also as low as 8%. In order to control the waste volume and enhance the recycling rate, the Law was established to install systems to collect and recycle papers, plastic containers, plastic bottles, glasses, and plastic bags.
This Containers and Packaging Recycling Law, based on the expanded manufactures’ responsibility, made recycling the responsibility of the manufactures while the municipalities were in charge of collection of the waste. As a result, the recycling rate has dramatically increased. However, the cost of collection became burden on the municipalities. The government estimated the cost of collection to be 300 billion yen per year. Since it was much larger than the recycling cost born by the manufacturers, the municipalities were expressing complains. Also in the advisory panels of the government, the conflict of the opinions between the manufacturing industry and municipality continued. Without having a breakthrough of a solution, the revised Law of 2006 incorporated a compromised idea that the manufacturing industry will provide multibillion yen funds to support the municipalities to partially bear the cost (Figure 2).
As a researcher, I also need to participate in the discussions that will determine the position of the environmental laws in the real society. We need to presume concrete actions against the law, and discuss and propose the types of penalties for each violation, the responsible person/organization to issue an order, or how to incorporate economic incentives to reach a certain goal. Sometimes I carry out the factual investigation for my research purpose.
Sometimes I encounter professionals who believe that an unequivocal goal can be determined if the economic cost-benefit analysis is applied. However, it is not that simple. When applying the cost-benefit analysis, we use the Contingent Valuation Method (CVM). For example, for the security of a beach, a survey can be carried out to ask the users to what extent they can bear the cost to protect the beach. The optimal policy can be developed based on the results of the analysis. However, this type of analysis only tells the tendency of the users. We cannot develop a policy based on it. The environmental issues have a more complex conflict of interests, and without reviewing the details of the conflict, it is not possible to develop a policy or enact a law.
Ask for public participation in justice.
The basic framework of the Japanese environmental law has been fairly established. However, there are still many issues to be revised. For example, in the Basic Environment Law, the sustainable development and prevention principle, etc. are stated as important principles of the Japanese environmental law. However, I do not think that these principles have not been exhausted much discussed.
Even as for the stance of the social responsibility for the environmental load, it is now required to step up the approach from “prevention principle” = to prevent things that have causal relationships with the environmental load to “precautionary principle” = to prevent things if there is a suspected risk of causing harm. For example, there are still uncertain things about new technologies such as genetically-engineered food, nanotechnology, and electric wave. If it is obligated to prevent something harmful on these technologies, the cost will be very large. Therefore, the resistance from stakeholders is strong.
As for the Environmental Impact Assessment Law, it is necessary to discuss and examine the possibility of introducing the “strategic environmental assessment” approach, which incorporates environmental considerations into policies and programs even before the implementation plan is developed. As for the field of recycling, the laws that were established before the Basic Act for Establishing a Sound Material-Cycle Society in 2000 should be revised. Furthermore, the laws related to bio-diversity should also be revised in line with the ratification of COP10 treaty.
The environmental right is another important issue. In Europe, there is an advanced convention called Aarhus Convention that grants the public rights regarding access to information, public participation in governmental decision-making processes and public participation in justice. In Japan, the first two rights are fairly established, but the third right, the public participation in justice, has not been fully discussed. It is important to have an in-depth discussions in Japan including to whom the environment belongs and whether the public has a right to file a lawsuit about environment.
As for my original specialty, I am very much interested in the trend of stopping lawsuit cases such as the Kunitachi condominium lawsuit or reclamation project of Isahaya Bay lawsuit. I believe that the principle of the environmental rights will not be created out of nothing. New ideas about more specific environmental rights and benefits will be generated from the real lawsuit cases. The principle of environmental rights will then be discussed in line with these new ideas.
In the near future, I am planning to write a book that summarizes my notes that I had been taking from my work of environmental laws. I wrote a book about global warming in 2004. These days, I am heavily involved with emission trading, so I would also like to write a book about that.
About the Author:
Tadashi OTSUKA, Professor, Faculty of Law, Waseda University
He became a research associate, Faculty of Law, Tokyo University in 1981, associate professor, Faculty of Law, Gakushuin University in 1986, and a guest researcher at University of California, Barkley School of Law from 1988. In 1993, he became professor, Faculty of Law, Gakushuin University Since 2001, he is a professor, Faculty of Law, Waseda University. Since 2004, he has also held a position as a Professor of Waseda Law School. He is specialized in environmental law and tort law. His books include Environmental Law (Yuhikaku), Introduction to Environmental Law (Nikkei Bunko), Legal Policy on Global Warming (Showado), Environmental Risk Management and Precautionary Principle (Yuhikaku), and others.
