Monday, September 26, 2011
Last Friday, Vermont Law School held its second annual environmental scholarship colloquium. It's a great event. Jason Czarnezki, who came up with the idea and took the lead in making it happen, and his colleagues do a wonderful job organizing, hosting, and filling their visitors with lots of really tasty locally-grown food.
For me, one of the most interesting panels was an international/comparative law panel with Alex Wang (Berkeley VAP; formerly NRDC in Beijing), Gabriel Michanek (Uppsala University, Sweden), and Du Ming (Chinese University of Hong Kong). Alex Wang's presentation shed some new light on conventional wisdom about Chinese environmental law implementation and provoked an interesting discussion with Du Ming and with several of the other Chinese environmental lawyers in attendance. For an American with only a very general understanding of Chinese environmental policy, it was a treat to listen to a dialogue among Chinese environmental law experts, all of them kind enough to keep the conversation in English so the rest of the room could understand.
Gabriel Michanek's presentation and paper addressed the tensions between Swedish and European Union water law. The paper is short and accessible, and for students of U.S. water law, it offers an interesting study in contrasts and, to a much larger extent, similarities. In particular, two passages jumped out at me.
First, here's professor Michanek's description of the European Union's Water Framework Directive:
First, WFD recognizes the complexity connected with management of waters. The approach is holistic. It focuses on the status of the entire hydrologic system in a river basin, including its rivers, lakes and sea coast waters. The national territories are divided into water basin districts for which special water district authorities are in charge. Furthermore, it applies to all sorts of activities that may impact the quality of waters, not only different kinds of polluting activities but also water operations, such as constructing dams and other installations in water (e.g. for extracting hydro power), taking out water for irrigation or consumption, drainage of wetlands or other conducts altering water levels or water courses.
To U.S. water law scholars, who spend a lot of time lamenting the absence of holistic approaches to U.S. water resource management, that may sound awfully nice. The EU approach also involves an emphasis on adaptive management, including periodic permit review, which also sounds like an advance on U.S. approaches.
But then we get to the implementation:
The Swedish legal system does not provide for efficient implementation of water quality standards and programmes of measures determined in accordance with the WFD. This is due the construction of Swedish legislation, e.g. the weak legal status of programmes of measures, lack of enforcement mechanisms, none or limited legal effect of environmental quality standards and strong rights for license holders. The failure to implement [also follows] from inadequate management in practice, not least the reluctance among environmental authorities to make use of the legal right to initiate reviews of outdated licenses for polluting activities.
The Swedish implementation deficits promote conservation of established rights to pollute and to exploit waters. This is contrasting to the basic idea behind WFD adaptive planning. ... [I]t is not possible to realise the WFD adaptation if the legal system, like the Swedish, counteracts new requirements.
This is just a sample, and there's much more to the discussion. And while the paper focuses on Sweden, my sense, from side conversations with Professor Michanek, is that Sweden's difficulties are far from unique. Sadly, it seems, some water management challenges may be rather universal.
The full set of drafts from the conference is available here.