Examining the Emergence of Global Environmental Law Principles

I have just put my article manuscript, “The Emergence of the Environmental Impact Assessment Duty as a Global Legal Norm and General Principle of Law,” on the Social Science Research Network.  [Here is a link to the article abstract on SSRN, with link to the manuscript:  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3202454.]   It’s both an empirical study of the worldwide adoption of the environmental impact assessment norm (i.e. the requirement to engage in EIA analysis for projects and activities that have the potential to cause significant impacts on the environment) as well as an examination of the normative implications of this development for environmental law internationally and in national legal systems.  (In the US, this norm has existed in our environmental law system since the enactment of the National Environmental Policy Act in 1969.)

The most interesting (in my view) and possibly the most controversial claim of my article is that the EIA norm has become a general principle of law in public international law.  If this argument is accepted in public international law, this would have significant implication for international environmental law in that the EIA norm would be deemed LEGALLY BINDING as a matter of public international law.  (For more details on this argument, see the article.)

Here is also the abstract of the paper itself:

More than half a century ago, Rudolph Schlesinger announced a global survey of legal principles in the pages of the American Journal of International Law. The project’s objective was the identification of a “common core” of legal norms among the family of nations and the ultimate goal the production of something akin to a global restatement of law. Such an endeavor was to yield global principles of law, ultimately giving substance to the General Principles of Law provision under Article 38 of the Statute of the International Court of Justice. In spite of the initial enthusiasm surrounding the project, its ultimate goal was never realized.

Five decades later, the prospect of engaging in such a project, focused on the environmental law field, promises more fruitful outcomes. In this article I argue that globalization and other trends have made the EIA duty – the duty to perform environmental impact assessments for projects that are likely to have a significant impact on the environment — a globally accepted norm. A 197-jurisdiction survey finds that the duty has been nearly universally adopted. The article suggests that the EIA duty may now be seen as a “general principle of law recognized by civilized nations,” and in that sense has joined the body of public international law. Finally, the survey results also point to comparative law methodology as a promising opportunity for identifying new legal norms in the international environmental law field, independent of the cumbersome process of treaty negotiation or the time-consuming development of customary law.

Unfortunately, I am not quite done cleaning up the database of the empirical study – however, it is intended to be publicly available so that it can be reviewed together with the paper.  I expect this to be completed soon.  [The database is quite massive, and I am only making parts of its available; it took a couple of years and the work of 2 research fellows to assemble.]

I am including 2 slides (below) from a recent talk that I gave at VLS on this.  Here is the summary chart of the database.


The second slide is a graphical representation of the chart, created by my research fellow Phoebe Wu.


[The map is based on a UN map; all the blue states/jurisdictions are places that have an EIA legal mandate as part of their legal systems; red states/jurisdictions do not have an EIA requirement; green are the states/jurisdictions for which we were not able to make a definitive determination (within our confidence criteria) as to whether an EIA duty existed in that jurisdiction.]


40th Anniversary of Vermont Law School’s Environmental Law Center

IMG_7881Today, Vermont Law School celebrated the 40th anniversary of the law school’s Environmental Law Center.  Past directors (David Mears, Melissa Scanlan, John Echeverria, Marc Mihali, Karin Sheldon, Pat Parenteau, and Dick Brooks) were on hand to provide a nostalgic review of the Center’s history and accomplishments.  The event was followed with a presentation of a set of Festschrift contribution for the Center’s founding Director, Richard Brooks, and his scholarly work.  It was a touching tribute to the person who started it all.


And now for something different — A Short Story Dispenser

I couldn’t resist sharing this.  [There is an environmental angle to this – wait for it.]   While exploring the Freedom Trail and taking in the Boston sights, we came across a short story dispenser at the Prudential Center shopping mall.

What a neat idea, we all thought.  I picked a 1 minute story, my wife Tinling a 3 minute one, and my daughter Zoe got a 5 minute story!  Turns out that the quality of the story was not particularly great – mine was mostly a stream of consciousness piece.  But hey – I am not casting aspersions.  Producing good writing is hard, as I know well myself.

However, later, it occurred to me that the placement of this dispenser was probably the flaw in the entire “short story dispenser” concept [not the quality of the writing].  Rather than placing the dispenser in a busy shopping mall passageway, the dispenser should have been placed in a bathroom stall.  Use it there to provide some reading distraction when people are doing their business!  Just as in the adage that everything tastes better when one is hungry, this could even give mediocre authors an audience boost when bored minds turn to their work.  And if the logical next step is taken, the short story dispenser concept could be turned from a win-win into a win-win-win.  Immediate recycling or re-use of the short story for other purposes would create the trifecta of wins – for bathroom user, author, and environment!  Score one for the environment!


Follow-up Perspective on Singapore’s NEWater

Today we visited the NEWater plant and Visitor Center in Singapore, and it was exciting to see their development with water. The NEWater plant treats waste water in a three-step process and then feeds the water back into Singapore’s system. As part of the tour, we got to taste the recycled water, and I must admit, there is little difference from other tapwater.

The plant treats water by microfiltration firs,t which filters out microscopic particles including bacteria. Second is the reverse osmosis which removes undesirable contaminants by flowing the water through a filter in reverse. The last step is the ultraviolet disinfection in which the water passes through ultraviolet light to ensure any remaining organisms are removed. After this process has been completed, chemicals are added to the water to restore the pH balance. Now the water is ready for drinking.

These steps are similar but also different from the steps we apply in the United States. In my home town of Seaside, CA, waste water is treated by the MontereyOne Water company which is in the process of treating and feeding waste water back into the public flow upon voter decision. Currently they also use a three-step process and the fourth step is being introduced to bring into consumption. Their steps include, first running the water through a large screen to remove large materials. Second, the water flows into primary clarifiers where gravity sinks or floats solids in the water and then are removed. Next the water is introduced into a bioflocculation basin which contains millions and millions of microbes that decompose the organic matter in the water. Lastly the water is distributed back into the ocean.

The idea of recycled water to the tap has brought a lot of controversy in California. Many of the arguments against this process are because of the thought of drinking “toilet” water. To be sustainable in the future, the process of using recycled water is a must otherwise production of water will become a much bigger issue. Although I strongly suggest another step should be added to insure the water quality is adequate and this step should include a testing step. Somehow and in some way, we have to change the minds of the people that treated water is the same or better quality after the treatment. The best way to do that is with a public campaign. It’s a difficult topic to understand but it’s the future for our society.

Alexander Miller

Singapore’s CITES enforcement

Our “Business and the Environment” course had a terrific and insightful presentation on CITES enforcement by Dr. Anna Wong, Director (Import and Export Regulation Department/ Quarantine Department), Quarantine Inspection Group, Agri-Food & Veterinary Authority of Singapore (AVA).  Because Singapore is a major transit point for trade into and out of Southeast Asia, Singapore’s active scrutiny of goods coming through its ports of entry, both at its shipping port as well as its airport, has been a crucial part of CITES enforcement in this part of the world.  AVA’s work has not only led to notable seizures in Singapore, such as hundreds of elephant tusks in March of this year (elephants are listed in Appendix I and thus subject to CITES’ strictest protections), but also success in helping to bust wildlife smuggling rings in Africa.  Of course, Dr. Wong also acknowledged that interdiction of wildlife smuggling cannot be the sole answer to the broader challenge of conserving endangered species and that controversial questions about sustainable management (and hunting) of endangered species and their role in species conservation remain unresolved.  Overall, it was a very thoughtful and educational lecture.

Later that same day, our class also visited the Singapore International Arbitration Center (SIAC) at Maxwell Chambers.   We were treated to detailed lecture by Chris Bloch on the role and process of arbitration as an alternative to traditional litigation in resolving international disputes.  SIAC has become a leading arbitration forum, and its case load has increased rapidly in the last couple of decades.

On a lighter note, here are pictures of me, Joseph Ewald and Alexander Miller enjoying an evening in Chinatown.  The highlight of the evening was Alex braving a taste of Durian, the King of Fruits.




The Story of Singapore’s Water Supply

img_7499We were treated to an interesting lecture about Singapore’s water supply system and tour of its original prototype water reclamation system last Wednesday afternoon.  Assistant Director YEO Sheng Wei of the Singapore PUB (Singapore’s water authority) Industry Development Department provided us with a detailed description of the history, policy, and current components of the water system.  Because Singapore is a city-state with a very limited land base, virtually no natural resources, and only a very limited natural freshwater supply that can provide potable water to the country’s resident.  That has forced the government to be very forward-looking and innovative in addressing the population’s water needs.  Interestingly, the city has looked to places like California to learn about options for water management.

The country’s water supply comes from what is described as 4 national taps:  1) local watersheds/catchments (from natural rainfall), 2) water imports (from Malaysia), 3) NEWater, and 4) desalinated water (from ocean).  The last two taps have become only important in Singapore over the past few decades because of the limited prospects and uncertainty associated with water imports from Malaysia.  The water imports from Malaysia have arrived courtesy of two treaties, one of with expired a few years ago. The other treaty, a 100 year agreement originally concluded in 1962, guarantees water delivery until 2061.  In order to ensure a stable and secure water supply beyond 2061, Singapore developed the NEWater system and water desalination plants.  The desalination plants are quite straight-forward and use technology that has been developed in other places.  I found NEWater to be most fascinating.

In essence, NEWater is recycled water — waste water (. . . . sewage, arrgh) cleaned up enough so that it can be fed back into the potable water systems.  The NEWater Visitor Center that we toured actually provided illustrations of the advanced technological processes that clean up the water.  After waste water goes through the traditional treatment process of a waste water treatment plant, it is fed through additional filtration processes, including a final reverse osmosis filtration, producing water so pure that it is used for industrial processes such as silicon wafer production (in semiconductor manufacturing).

However, it turns out that only a small fraction of the city’s tap water is made up of NEWater, and even that part is fed through the city’s reservoirs first rather than being mixed into the drinking water system directly.  The reason for the relatively small percentage (about 5%) contribution is the remaining psychological aversion to drinking NEWater.  That has remained an issue even though the country’s prime minister himself drank a small bottle of NEWater at a televised event introducing NEWater to the public some years ago.  Among Singapore’s current strategies to make its citizens become comfortable with NEWater is a requirement that all school children must visit the NEWater Visitor Center in order to understand Singapore’s water issues and gain a better understanding of NEWater.

We were given free samples of NEWater, and I can now say (proudly?) that we all drank the NEWater . . . . it tasted fine. . . .   That was a few days ago, and I am still fine – or at least I feel fine, not a bit ill . . . .  Anyway, jokes aside, the water tasted like any other bottled water . . . no odors or after-taste.

The afternoon visit proved to be a highly educational experience that gave all of us a much better appreciation for water.