SIXTH INTERNATIONAL CONFERENCE ON ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT
Finally, the judge will ask, "What damage do you charge has been done to you? Where is the broken arm or the broken contract? I am not a prophet who can speculate upon the ultimate fate of gulls and terns. I redress loss; I do not paint the future rosy.'
Much has changed in the interven- ing three decades since 1970, particularly as we have noticed, on the legislative front, but the impression of a tradition of judicial insensitivity to environmental concerns per- sists. At the same time, there has, even in the view of the most extreme of environ- mentalists, been a gradual movement, even if not always in a straight line, towards placing greater premium upon environmen- tal security.
In looking at the changing attitude brought to the weighing process used to make final decisions on environmental law enforcement, it is convenient to consider the branch of law used to enforce the envi- ronmental standards in question. Thus, the environmental protection regime is enforced through the law of tort, through the operation of administrative law and through the criminal law.
The law of tort, such as nuisance law and Rylands v. Fletcher, are essential- ly aimed at protecting individual rights or rights relating to property. The protection offered to landowners against unreason- able injury to their land by the action of another has obvious environmental impli- cations, but was not designed to promote environmental preservation as we under- stand that notion today.
Using The Common Law As A Mechanism For Environmental Protection
An important debate, which is ongoing, concerns whether these judge- made rules ought to be developed so that they are directly concerned to secure envi- ronmental protection. Many of the judges who have considered this issue have clearly been reluctant to develop tort law in this way. This reluctance was exemplified in Boomer v. Atlantic Cement Co., decided in 1970 by the Court of Appeals of New York. The Court expressly refused to allow private litigation in nuisance to be used as a tool to effect broad control of air pollution. A case in water pollution provided the opportunity for the House of Lords to made similar indica- tions. In Cambridge Water Co. Ltd., v. Eastern Counties Leather plc the House refused to reform the tort of Rylands v. Fletcher into a more specific common law rule about the control of hazardous sub- stances. Lord Goff rationalized this approach on the ground that :
‘… as a general rule, it is more appropri- ate for strict liability in respect of opera- tions of high risk to be imposed by Parliament, than by the courts. If such liability is imposed by statute, the rele- vant activities can be identified, and those concerned can know where they stand. Furthermore, statute can where appropriate lay down precise criteria establishing the incidence and scope of such liability. '
Standing To Bring Environmental
A similar reluctance is evident in the related question of standing to bring common law actions to vindicate environ- mental rights. The requirement in most common law actions, to demonstrate some sort of proprietary interest or show special damage, remains a judicially self-imposed obstacle to environmental actions. After some indications of willingness by the English Court of Appeal to relax the