ENVIRONMENTAL LAW: MEANING & SCOPE

ENVIRONMENTAL LAW: MEANING

For Glazewski (at 9), environmental law encompasses the following three distinct but inter-related areas of general concern. They are 1. land-use planning and development; 2. resource conservation and utilisation; and 3. waste management and pollution control. Not every legal norm relating to the environment, observes Rabie, is regarded as constituting environmental law. Environmental law presupposes that the norm in question is aimed at or is used for environmental conservation (Rabie Nature and Scope 92).

Environmental conservation describes the conservation of natural resources and control of environmental pollution. This is done through a process known as environmental management. Environmental-law norms relate to the management of the environment.

Scope of Environmental Law: Legal Norms and Standards Underpinning Environmental Management

Legislation regulating environmental management

Legislation, from an environmental point of view, may be divided into six categories: 1. legislation aimed exclusively at environmental management (like the National Parks Act and the Atmospheric Pollution Prevention Act); 2. legislation calculated to promote an environmental object (like the Mountain Catchment Areas Act); 3. legislation not specifically directed at environmental management, but including individual provisions aimed at environmental management (like the Nuclear Energy Act, the Sea-Shore Act and the National Roads Act);

4. legislation not aimed at environmental management, but including provisions that are directly or potentially of environmental significance (like land-use planning legislation and the Customs and Excise Act); 5. legislation not aimed at environmental management, but rather at environmental exploitation (like the old mining legislation and legislation promoting afforestation and fishing, and the development of townships); and, finally, 6. legislation with no environmental relevance.

Sources of environmental law

1. 2. International Law: Both international customary law and international conventions function as sources of South African environmental law. Common law: A variety of common-law rules, derived from neighbour law, for example, and the law of nuisance, are of significance as sources of environmental law in South Africa. The dictum sic utere tuo ut alienum laedas (use your own so as to cause no harm) furnishes one instance. Constitution: The Constitution now informs and underlies the entire legal system in South Africa. Of prime importance here is the Bill of Rights, with its explicit provision for environmental rights (s 24). The Constitution provides a framework for the administration of environmental laws. Statute law: Environmental law is also derived, obviously, from national and provincial legislation, and from local by-laws. Customary law: Custom also functions to some degree as a source of environmental law.

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Jurisprudential grounds for environmental protection

There are, broadly speaking, two bases in jurisprudence for protecting the environment: 1. the biocentric (or life-centred) approach; and 2. the anthropocentric (or human-centred) approach.

Anthropocentric philosophy:
The anthropocentric approach finds some support in the common law of South Africa. There is, for example, the Roman-law maxim sic utere tuo ut alienum laedas (you may use your property only in such a way as will not harm another).

Anthropocentric philosophy
The Constitution, insofar as it deals with the environment, also embraces anthropocentric philosophy, providing in section 24 as follows: Everyone has the right (a) to an environment that is not harmful to their health or well-being; and (b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that(i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

Anthropocentric philosophy
NEMA, furthermore, provides that environmental management must place people and their needs at the forefront of its concern, and serve their physical, psychological, developmental, cultural and social interests equitably (s 2(2)).