Nature of Environmental Problems

The protection and improvement of the human environment is a major issue which affects the well-being of people and their economic development throughout the world. Thus, a point has been reached in history when we must shape our actions throughout the world to maintain the natural cycle of the environment.[1]

This is because within the environment there is dynamic interrelationship between the living form and physical environment. These relationships can be expressed as a natural cycle which provides a continuous circulation of the essential constituents necessary for life. This cycle mainly operates in a balanced state in an undisturbed natural environment; and as a matter of fact the balanced operation of this natural cycle is a fundamental condition to the continued existence and development of life on earth[2]. Human beings should therefore maintain this balance with nature and act according to the law of nature. Otherwise, man will suffer from the results of his interference[3].

It is this very condition that the World Charter for Nature reiterated. It states that mankind is a part of nature and life depends on the Uninterrupted functioning of natural system which ensures the supply of energy and nutrients[4]. That is, lasting benefits from nature depend upon the maintenance of essential ecological processes and life support systems, and upon the diversity of life forms, which have been placed at jeopardy through excessive exploitation and habitat destruction by man.

At this juncture, it is important to take notice of the fact that the environment, including the human competent, is complex and is not yet completely understood. We are part of that system: our actions affect the system and we are in turn affected by it. In spite of this, we do not have a full understanding either of the system or our interactions with it[5]. This calls for putting in place an early warning system and a system of prioritizing risks, since resources to address risks are always limited; and often the damage to the environment are irreversible or even if reversible can be done only at excessive costs[6]. In other words, many of the damages done to the environment may have long term effects or they may involve important synergism in the environment or may not be effectively reversible[7] such that, the greatest danger is that human kind may set off unchecked degradation that will pass a point of no return, making it impossible to restore a healthy environment[8].

The basis of the emphasis on human acts in environmental protection is, the fact that, we are part of the environment and simultaneously we human beings have a capacity and capability not only to improve but also to destroy and destruct nature[9]. For this reason, if we fail to safeguard the environment from being affected by our activities, there is a fear that[10]:

Large scale changes resulting from burgeoning human activity will, in relatively near future, alter fundamentally the terms of human existence and may even affect the possibility for human survival.

From this stipulation, one can easily infer the fact that environmental danger could possibly jeopardize the very existence of the present generation as well as the future.

The preamble of Tokyo Declaration on Financing Global Environment has succinctly put the inter-relationship and the danger posited in the following manner[11]:

Human future is at risk due to wasteful pattern of production and consumption in industrialized countries and pervasive poverty and population growth in developing countries which are primarily leading to the destruction of the earth’s ecological base.

By implication, the Tokyo Declaration reveals that the current environmental problems are caused by factors related to unsustainable use of natural resources, and unprecedented growth of population, and the cumulative effect of these environmental injuries would undoubtedly all living creatures on earth in jeopardy[12]. So that, environmentalists are warning the world community that we have reached an alarming stage, thus we need to take serious measures of rescuing the quality of our environment to make it last long. In short, protecting and conserving the environment becomes a must case for the purpose of sustaining life on earth successfully now and in the future[13].

Having the above facts, the interaction can be a healthy one, with human kind balancing what he takes from the natural environment with what the environment can afford to provide[14]. Since the dawn of the Industrial Revolution, however, human demands placed upon the earth’s resource have increased dramatically. Although the technological advancements have improved the sustenance capacity of the earth, many of these technologies have also placed added demands on the  earth’s limited resources, thereby bringing us closer to the threshold of the capacity of the earth[15].

Now-a-days, it is clear that the mad rat race among nations over the use of natural sources for development is increasingly jeopardizing the quality of the environment. The craze of these states resulted in over extraction of every bit of natural resources, and this unchecked exploitation of natural resource by man disturbed the delicate ecological balance between living and non-living components of the environment[16]. For this very fact, time has reached when we are facing challenges to our intellect and wisdom for saving the humanity from extinction[17].

To save humanity, therefore, everyone should notice that we human beings are at the heart of the search for sustainable development as our very survival depends on a very narrow range of environmental condition. And to this effect resource withdrawal, processing and re-use of the products have all to be synchronized with the ecological cycles in any development plan[18]. This approach unifies protection of the environment and development programs by formulating the concept of sustainable development in the following manner[19].

In order to achieve sustainable development environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.

This concept underlies the need to develop a holistic understanding of the relationship between the environment and the development process[20]. If not, any social and economic development endeavors cannot continue into the future, at least, for two reasons[21]. First, the malfunctioning of such unregulated actions will result in destroying the environmental conditions necessary for the continuation of the activity. And second, the adverse environmental effects resulting from such malfunctioning will cause massive or unacceptable damage to human health and life, and thereby disrupts the normal way of social interaction, peace and regularity of human life.

To have a full picture of environmental problems, it is also noteworthy to take notice of environmental problems arising apart from development activities, which are deliberate actions aimed at destroying the human being and the environment. One of such deliberate acts is the indiscriminate bombardment of cities, towns and countryside areas in effect which renders the civilian population to a military target of a new form of warfare-environmental warfare[22]. In such a situation the irreparable alteration to the environment may threaten the entire population, and it is tantamount to a crime against humanity, perhaps to a greater extent than genocide which may be limited only to a given ethnic minority in a specified area[23]. To avert this situation, we should not postpone our decision to resolve catastrophic disputes peacefully. If we wait too long, it would become impossible to have any opportunity to reconsider our acts[24]. That is, if we cannot take immediate action, the facts will continue as[25]:

[W]e are experiencing diseases today for hazards we did not control yesterday. What we do not take care of today will be there for our children to handle tomorrow.

When we look at the scope of environmental damage, in the past, pollution and environmental degradation have obtained largely on the local level and hence their effects have been isolated in impact. Given the increasing global scale of environmental degradation and ever increasing volume of pollutants entering the environment, however, their effects are now being felt on regional and global levels[26]. For this very fact, the problems of environmental degradation do concern all countries irrespective of their size, level of development or ideology. This is true because the oceanic world is an interconnected whole[27]. So, no government or society can take the environment for granted and since it is a global problem it can be tackled only with the assistance and cooperation of all[28].

When we bring it under one umbrella, the whole purpose of environmental protection boils down to mean suppressing the unwanted behavior and action of man, and fostering those that would contribute to the maintenance and enhancement of ecological balance to the benefit of the general public, and the continuity and profitability of development activities[29].

Today, environmental problems are serious and imminent threats, which suggest a need for drastic or emergency action[30]. This emanates from the magnitude of man’s impact on his environment which necessitated a full scale reconsideration of the relationship between the environment and development programmes[31]. In other words, the fact that human kind is now at a crossroads, that is, either to overwhelm the planet’s support capabilities or to return matters around and preserve its life giving qualities for future generations, calls for the reorientation of man’s activities with a view not to make the earth a desolate rooming planet[32].

To this effect, therefore, human beings are now being called upon to save the future. The future, it is presumed, lies entirely in their hands; tomorrow can not take thought of itself; it is they, now who have to save tomorrow[33].

The above factual situation of environmental problems which reveal the diffused right of human beings to live in a clean and healthy environment, and the pressing need of public participation to save the environment before it reaches no turning point, calls for the reorientation of the law to accommodate public interest litigation. The need for the reorientation of the law emanates from the fact that traditional litigation is designed in a way to enforce the rights of an individual against another, and not to enforce the diffused basic human rights of the public. In other words, the narrow ambit of locus standi permitted entry only to an aggrieved person and not to any member of public at large acting bonafidely. To have a full fledged justice, therefore, the procedural law should be designed with a leeway to accommodate public interest litigation to enable alert citizens and public interest groups redress public wrongs which remained unremedial under the traditional rules of locus standi.

Pollution to Environment as International, Regional and National Concern

The issue we will be discussing under this subtitle would be whether environmental issues are national or international in their concern. Some environmental problems, for example climate change or depletion of the stratospheric ozone layer, are inherently global in character, and affect all states, not necessarily equally, but at least to the extent that impacts are global and global solutions are required. There are also regional environmental problems like air or water pollution and conservation of migratory animals.

Equally there could be also domestic or national problems as well.

There is thus no single sense in which an environmental issue can be described as international, regional or national; rather it could be global, regional, trans-boundary, domestic, or a combination of all or any of these. What must be appreciated, however, is that the law governing these rather different contexts is likely itself to differ, both in the content of any applicable rules, and in the form they take.

Discussion Questions

Discuss why the protection of the environment is the concern of global, regional, trans-boundary, domestic, or a combination of all or any of these concerns by giving relevant examples? Discuss the following Quotation in line with the above subtitle?

“A communications gap has kept environmental, population, and development assistance groups apart for too long, preventing us from being aware of our common interest and realizing our combined power. Fortunately, the gap is closing. We now know that what unites us is vastly more important than what divides us.

We recognize that poverty, environmental degradation and population growth are inextricably related and that none of these fundamental problems can be successfully addressed in isolation. We will succeed or fail together.

Arriving at a commonly accepted definition of sustainable development remains a challenge for all the actors in the development process.”

‘Making common cause’

The Rationale for the Protection of the Environment

The Question of the need to protect the environment exploded in the late 1960’s. Since then it has increasingly become of crucial importance. At present states, international organizations, and individuals feel that it is imperative to take action to preserve the natural and human environment or at least avert its worsening. Before, the problem was not felt for three main reasons:[34]

First, industrial developments had not spawned pollution and damage to the environment on a very large scale. Second, States still took a traditional approach to their international dealings: they looked upon them as relations between sovereign entities, each pursuing its self-interest, each eager to take care of its economic, political, and ideological concerns, each reluctant to interfere with other states’ management of their space and resources, and unmindful of general or community amenities. Third, public opinion was not yet sensitive to the potential dangers of industrial and military developments to a healthy environment.

Of course, the question of why we protect the environment is very difficult to answer. Its answer depends on the context. Accordingly, there could be ethical, aesthetic, or symbolic reasons for protecting the environment as opposed to economic and health reasons. However, almost all justifications for environmental protection are predominantly and in some sense anthropocentric.

This is true especially of the 1972 Stockholm Conference, which focused explicitly on protecting ‘the human environment’ and proclaimed[35]:

Man is both creature and molder of his environment, which gives him physical sustenance and affords him the opportunity for intellectual, Spiritual, moral and social growth…

Likewise, the 1992 Rio Declaration on Environment and Development asserts that ‘Human beings are at the center of concerns for sustainable development’.

The preamble to the 1992 Convention on Biological Diversity evinces the complex mixture of objectives for the protection of the environment, which characterizes much of contemporary international environmental law: Conscious of the intrinsic value of biodiversity and of the ecological, social, economic, scientific, educational, cultural, recreational and aesthetic value of biological diversity and its components, conscious also of the importance of biological diversity for evolution and for maintaining life-sustaining systems of the biosphere (holistic approach to environment protection).

The emergence of individual environmental rights has the strongest anthropocentric motivation, most notable in attempts to develop a new human right to a decent environment. Some advocates assert that such a right is indispensable for the enjoyment of human rights freedoms,[36] but they usually fail to explain how competing environmental, economic, and social priorities can be accommodated in what necessarily becomes a value judgment about what we value most.

A more explicit relativism characterizes most environmental protection measures aimed at protecting human health or safety, including those in which the acceptance of some responsibility for the welfare of future generations is a prominent feature, such as the conventions on nuclear radiation risks or climate change.

Nature of Environmental Damages

Problems in Defining Environmental Damages

Defining terms such as environment and environmental damages is important because it is one of the methods used by the legislatures to determine the regime and range of liability in question[37]. In this respect, it means, the broader the definition of damage to the environment is the wider the scope of the compensable damage.

In the case of the Ethiopian legal system, environment is defined to mean[38]:

the totality of all materials whether in their natural state or modified or changed by humans, their external spaces and the interactions which affect their quality or quantity and the welfare of human or other living beings, including but not restricted to, land, atmosphere, weather and climate, water, living things, and aesthetics.

Furthermore, damage to the environment is understood to mean[39]:

any condition which is hazardous or potentially hazardous to human health, safety or welfare or to living things created by altering any physical, radioactive, thermal, chemical, biological or other property of any part of the environment in contravention of any condition, limitation or restriction under any relevant law.

From the above legal provision, we can infer the fact that damage to the environment does not only cover damage to the environment per se, but it also covers damage to private property and consequential losses that arise there from or in connection with. In other words, damage to the environment has two facets, that is, private nuisance and public nuisance.

Private nuisance is defined as unlawful and continuing interference with a person’s use or enjoyment of land and possibly, physical damage to that property. whereas, public nuisance is a crime as well as a tort, and for any action to lie it must interfere with the use and enjoyment of property by the public in general or by a sufficiently large number of public[40].

Accordingly, a proper classification of damage to the environment is imperative because there is a fundamental difference between the environment-related type of damages [private nuisance], on the one hand, and damage to the environment per se [public nuisance] on the other hand in relation to the scope of the traditional tort law.

In the traditional tort law, it is generally held that, an individual acting privately can not initiate a legal action for a purely public nuisance, unless the damage he incurred is in some way distinguished from that sustained by other members of the general public[41]. In other words, a private individual can have standing only when he has suffered damage over and above that suffered by the public at large, so much so that the scope of the traditional tort law covers only the environment related type of damages which could result in personal injury or pure economic loss.

For the above reason, when damage is done to the environment per se, it does not fit properly in the traditional legal concept of tort law. To have better understanding, this inference could be further consolidated by the following reasons[42]:

First, by the fact that damage to the environment per se affects collective interests rather than individual interests, and incidents that affect such collective interests do not generally speaking, give rise to legal right of standing. That is, the traditional liability rules mainly concern in the protection of individual interests and, in cases of damage to the environment per se, these interests are often only indirectly affected [if at all].

The second reason is the very nature of damage to the environment per se. That is, since damage to the environment per se is a separate category of damage, it is not entirely clear if damage to the environment per se should be classified as material or non-material damage [pecuniary or non-pecuniary loss]. And, because under the traditional tort law only certain types of damages are compensable, it becomes questionable whether all aspects of damage to the environment per se fit in the tort law system.

To supplement the gap in the law, which emanate from the limited scope of application of the traditional tort law, it is, therefore, a pressing need to incorporate a liberalized standing and a modern concept of tort law[43]. Corollary, to have a liberalized standing with a legal penetration, forming a new and additional category of damage to the environment per se in the tort law is a prerequisite as it is provided in the following section.

Damages Forming New and Additional Category of Damage to the Environment

To achieve a more comprehensives environmental protection a new category of damage should be introduced in addition to and separate from property damage, personal injury and pure economic loss. This category extends traditional tort law to cover damages to the environment per se, that is, it would extend its scope to encompass natural resources that have direct or indirect interest to the public at large[44].

Extending the scope of the liability regime to include both the publicly owned and publicly possessed natural resources, and the publicly owned but privately possessed natural resources that have a particular value to the public has the advantage that the environment is valued as a unity party that is independent from property interests.

In the case of publicly owned but privately possessed natural resources that have a particular value to the public, standing is proposed to be liberalized for the fact that they may support threatened and endangered species, and provide other services to man and nature[45].

Other specific reasons for the liberalization of standing to include certain publicly owned but privately possessed natural resources are the following:

The first reason is the plaintiffs’ reluctance to take care about the pollution. In some instances they themselves may also be polluting, and not wish to initiate legal action. They may be economically dependent on their polluting neighbor. And, of course, when they discount the value of winning by the costs of bringing suit and the chances of success, the action may not seem worth undertaking[46]. Consider, for example, that while the polluter might be injuring hundred downstream riparian of ten thousand dollar a year in the aggregate, each riparian separately might be suffering injury only to the extent of a hundred dollars-possibly not enough for any one of them to want to press suit by himself, or even to go to the trouble and cost of securing co-plaintiffs to make it worth everyone’s will. This hesitance will be especially likely when the potential plaintiffs consider the burdens the law puts in their way. Furthermore, it becomes troublesome, in that, as a general principle, the traditional tort law does not allow someone who suffered a loss to take into consideration the interest of the general public which might be in the damaged object[47]. The same problem emerges when the private possessor of the public owned natural resource caused damage to it. In this respect, if the damage is not repaired duly, it may have consequence on natural resources that directly or indirectly depend for their survival and productivity on that resource which sustained damage[48].

Second, the merit of the case is decided only to the interest of some one who is competent and willing to establish legal standing. In this case, the system protects only the rights of the property owning human without giving due consideration to public interest, and intrinsic natural values. So, strict adherence to the traditional tort law and traditional standing denies cognizance to the intrinsic value of the environment, and the public interest aspiration[49].

Third, under traditional tort law, even if a plaintiff wins a pollution suit for damages, no money goes to the benefit of the environment itself to repair its damages. This omission has the effect that, at most, the law confronts a polluter with what it takes to make the plaintiff riparian whole; this may be far less than the damage to the environment, so that it may not have enough reparcation to force the polluter to desist[50]. For example, it is easy to imagine a polluter whose activities damage a stream to the extent of ten thousand dollars annually, although the aggregate damage to all the riparian plaintiffs who come in to the suit is only three thousand dollars. If three thousand dollars is less than the cost to the polluter of shutting down, or making the requisite technological changes, he might prefer to pay off the damages [that is, the legally cognizable damages] and continue to pollute the stream. Similarly, even if the jurisdiction issues an injunction at the plaintiff’s behest, there is nothing to stop the plaintiffs from selling out the natural resource, which is, agreeing to dissolve or not enforce the injunction at some price- somewhere between the plaintiffs’ damage and defendant’s next best economic alternative. In this case the defendant makes its peace with the plaintiff as best it can. What is meant is a peace between them, and not amongst them and the natural resource.

Forth, the measure of damage is another reason for including certain publicly owned but privately possessed natural resources that have ecological value, and publicly owned natural resources. Application of the traditional measure of damages rule may prevent full restoration of the damaged natural resources[51]. As a general rule, under the traditional tort law the costs of such measures are not to exceed the lost market value of the property. This may have the effect that the natural resources which lack a direct market value are not fully restored. For the above reasons, the benefit of the modern approach of tort law and liberalized standing is that the environment is valued as a unity and that the protection and conservation of natural resources does not stop at the border of private property.

In general, damage to the publicly owned and publicly possessed natural resources, and to publicly owned but privately possessed natural resources that have a particular value to the public, is damage of a collective nature and because no concrete individual interests are harmed, damages for this type of injury are in principle not recoverable under the traditional tort law. For this reason, to address the gap, the introduction of public interest litigation which can be initiated by public spirited persons or social service minded members of the public acting bonafidely, not for personal gain or out of political motivation or other oblique consideration, is a pressing need. Furthermore, the law becomes full-fledged where special laws not only specifically provide standing to alert citizens and public interest groups, but also when they bestow them a cause of action to claim compensation for such damage. That is, forming a new and additional category of damage to the environment per se in the tort law is a corollary to the liberalization of standing.

[1] H.M. Dix, Environmental Pollution, (Published in Chricheter New York Bribana Toronto, 1981), P.8.

[2] Id.

[3] Environment and Heritage, Professional and Topical Issues I and II, Module 1, Distance Education Division, St. Mary's College, 2005, P.81.

[4] The World Charter for Nature, Adopted and Solemnly Proclaimed by the United Nations General Assembly, On 28 Oct. 1982.

[5] J. Weiss, Environmental Change and International Law: New Challenges and Dimensions, (United Nations University Press, 1988), P.15.

[6] The Environmental Policy of Ethiopia, April 1997, 2.3 (f).

[7] Weiss, Supra note 5, P. 17.

[8] Conway W. Henderson, International Relations Conflict and Cooperation at the Turn of the 21^st Century, (Published by the MC Graw-Hill Companies, Inc., 1998), P. 431.

[9] Ethiopian Wildlife and Natural History Society, Addis Ababa Environmental Education Project Training Manual, March 2002, P. 124.

[10] Lawrence John, The Global Environment, (Published in Mangrove       Law Institution, 1971), P.33.

[11] Tokyo Declaration on Financing Global Environment and Development, Held in Tokyo from 15 to 17 April 1992.

[12] Mekete Tekle, The Right to a Healthy Environment: International and National Perspectives, Nairobi, April 1995, P.68.

[13] Module, Supra note 3, P77.

[14] Henderson, supra note 8, P. 430.

[15] Peter S. Menell and Richard B. Stewart, Environmental Law and Policy, (Published by Little, Brown and Company, 1994). P.11.

[16] P.D. Sharma, Ecology and Environment, (Published by Rakesh Kumar Rastogi, 1998). P.415.

[17] Id., P. 389.

[18] Id.

[19] The Rio Declaration on Environment and Development, Held at Rio de Janeiro from 3 to 14 June 1992, Principle 4.

[20] Sharma, Supra note 16, P. 331.

[21] Manual, supra note 9, P. 124.

[22] Arthur Westing, Environmental Warfare in Environmental Law, (Bol.15, 1985), P. 645, Cited in Mekete Tekle's Paper, Supra note 12.

[23] Brown Weiss, The Contribution of Human Rights Law to Environmental Protection with special Reference to Global Environmental Change, (Published in Cancado Tridade, 1988), P. 261.

[24] Raymond F. Dashman, Environmental Conservation, (Third Edition, Printed in the United States of America, 1998), P.3.

[25] B. Hydervali, Environmental Law: Some Trends, Vol. 1, P. 73.

[26] Weiss, Supra note 5, P. 22.

[27] P.S. Jaswal and Nishtha Jaswal, Environmental Law: Environmental Protection, Sustainable Development and the Law, (Published by Allahabad law agency, 1999) P.1.

[28] Id., P.  101.

[29] Manual, Supra note 9, P. 124.

[30] Mekete, supra note 12, P. 68

[31] Id.

[32] Henderson, Supra note 8, P. 430

[33] Menell and Stewart, Supra note 15, P. 14.

[34] Antonio Cassese, International Law (Oxford: Oxford University Press, 2001), at 375.

[35] The Preamble of the United Nations Declaration on Human Environment, Adopted in Stockholm in June 1972

[36]E.g. Pathak, in Brown Weiss (ed.), Environmental Change and International Law, (Tokyo, 1993), Ch.8.

[37] Edward H.P. Brans, Liability for Damage to Public Natural Resources: Standing, Damage and Damage Assessment, (Published by Kluwer Law Int., 2001) P.9.

[38] Environmental Pollution Control Proclamation, Neg. Gaz., Proclamation No. 300/2002, 9^th Year No.12, Art. 2 (6).

[39] Id., Art. 2 (12).

[40] Paul Denham, Law a Modern Introduction, (4^th ed., Printed in Great Britain for Hodder and Stoughton Education, 1999), P. 391.

[41] J. Gordon Arbuckle and Nancy S. Bryson, Environmental Law Hand Book, (9^th ed, Published by Government Institutes, Inc, 1987), P.10

[42] Brans, Supra note 34, P.13.

[43] Arbuckled and Bryson, Supra note 38, P. 10.

[44] Brans, Supra note 34, P. 14.

[45] Id., P. 12.

[46] Christopher Stone, "Should Trees Have Standing? Towards Legal Rights for Natural Objects", (Southern California Press, 1972) P. 460

[47] Brans, Supra note 34, P. 13.

[48] Id., P. 14.

[49] Stone, Supra note 43, P. 46.

[50] Id., P. 462.

[51] Brans, Supra note 34, P. 14.