NATURAL RESOURCES AND ENVIRONMENTAL LAWS

i. Environmental laws and principles

a. Conservation Principles and theories
i. The carrying capacity of a biological species in an
environment is the maximum population size of the species
that the environment can sustain indefinitely, given the
food, habitat, water, and other necessities available in the
environment.

ii. The biophilia hypothesis suggests that there is an

instinctive bond between human beings and other living
systems. Edward O. Wilson introduced and popularized the
hypothesis in his book, Biophilia (1984). He
defines biophilia as "the urge to affiliate with other forms
of life".

iii. Hard-Look Doctrine is a principle of Administrative law

that says a court should carefully review an administrative-
agency decision to ensure that the agencies have
genuinely engaged in reasoned decision making. A court is
required to intervene if it becomes aware, especially from
a combination of danger signals, that the agency has not
really taken a hard look at the salient problems. The
Administrative Procedure Act instructs federal courts to
invalidate agency decisions that are arbitrary or
capricious. Close judicial scrutiny helps to discipline
agency decisions and to constrain the illegitimate exercise
of discretion. The hard look doctrine is simply a reflection
of the courts' view of how an effective and meaningful
process of judicial review should be conducted.

iv. Regression takes many forms. It is seldom explicit, since

governments do not have the courage to announce

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backtracking in environmental protection officially for fear

of an unfavourable public response from environmental
and consumer NGOs.

Internationally, it can take the form of refusing to adhere to

universal environmental treaties, boycotting their implementation, or
even denouncing them. This happened for the first time in the field
of international environmental law when Canada decided to
denounce the Kyoto Protocol during the Conference of the Parties to
the Climate Change Convention in Durban in December 2011.

In EU environmental legislation, regression is diffuse and

appears when certain directives are revised.

National environmental legislation is subject to increasing and

often insidious regression:

o changing procedures so as to curtail the rights of the

public on the pretext of simplification;

o repealing or amending environmental rules, thus

reducing means of protection or rendering them ineffective.
Exceptionally, such regressions may be validated by a judge:
for example, on the 27th April 2012, the Panama Supreme
Court ruled for a provisional suspension of the Protected Area
status given to the mangroves of Panama Bay.

Faced with this diversity of forms of regression, environmental

lawyers must respond firmly and rely on implacable legal arguments.
Public opinion, once alerted, would not tolerate reversals in
environmental and therefore health protection.

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Pimentel, Julie Tanya

Natural Resources and Environmental Law

1:30-4:30 Saturday

SYNOPSIS OF LAND ETHIC

In a persuasive essay, Aldo Leopold tries to explain how we are

ethically and morally obligated to take care of our resources. In his paper,
The Land Ethic Leopold explains how we have viewed the land as, strictly
economic, entailing privileges but not obligations. This is the main
statement in his essay, and throughout the writing he elaborates on this
statement. He says we have not given the land (the soils, waters, plants,
and animals) the respect it deserves. He talks about our National Anthem
and how we sing of our love for and obligation to the land of the free and
the home of the brave and then he questions our uses of our resources
and in an almost disgusted way, says if you say youre going to take care of
it and love it, than follow through. He discusses how land ownership has

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played a big part of how we now use the land in different communities and
poses the question of many researchers; What if the outcome of settling the
states, and planting the fields if the plant succession had given us some
worthless grasses, shrubs, and weeds to a condition of unstable equilibrium.
Where would we be today?

He talks about resource conservation as an ethic and the land which

contains the most diversity such as marshes, bogs, dunes and deserts may
be privately owned. But if the owner was ecologically minded he would,
be proud to be the custodian of a reasonable proportion of such areas. He
goes on to say some of these lands can be set aside and managed by the
government, but it is the land ethic that comes in to play for the private
citizen whom owns the biologically rich land. He includes the land as part of
the community, and talks about how we should act respectfully to it as part
of our community, rather than treat it as just a tract of land with not intrinsic
value.

SYNOPSIS OF THE TRAGEDY OF THE COMMONS

In his 1968 Science essay entitled "The Tragedy of the Commons,"

Garrett Hardin challenged the morality of humankind's freedom to breed,
suggesting society's only hope, and only solution, for handling the population
problem.1 An extension on the topic originally published by William Forster
Lloyd in 1833, Hardin boldly delivers a solution to the problem that for the
scientific world was a new concept lacking a technical answer. Hardin
reaches his conclusions based on the concept that a communal resource of
universal ownership will inevitably fall to ruin as each rational owner decides

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to maximize utilization of the resource so that he/she collects the full reward
of his/her action. With each individual acting under this rationale, the
collective communes are undeniably limited to a finite resource.

Hardin's thesis is present in the article's subtitle The problem has no

technical solution; it requires a fundamental extension in morality. Humanity
requires the basic extension of a new value insisting that we surrender the
freedom to breed in order that we preserve the other freedoms. We live in a
finite world that can only sustain a limited amount.

His moral implications and philosophical analysis allow for a well-

rooted insight on sustainable development. As a civil engineer, sustainable
development is an issue of great significance when assessing global issues
challenging human societies such as global climate change, water resources
supply, energy supply and use, and the hole in the ozone layer.

Hardin's argument and solution to the problem of The Tragedy of the

Commons is therefore a pertinent discussion to the civil engineer. The
approach taken by him, as shown in his writing, is one that boldly navigates
all avenues with no overwhelming bias. Throughout my discussion, I will
present the concept of the Tragedy of the Commons from Hardin's article. I
will analyze his conclusions in relation to how his argument ties into the role
of civil engineering through issues relating to morality and the concept of
sustainable development. A conceptual inspiration generated by Hardin's
moral assessment will be evident in potentially shaping the ethics of a civil
engineer focused on meeting the developmental needs of society without
compromising the needs of future generations.

The inspiration for Hardin's thesis derived from another article by

Wienser and York in Science concerning the future of nuclear war. In their
article, Wienser and York carefully proposed the dilemma of a nuclear age
that has no apparent technical solution. This implicitly suggested that if a

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plausible solution were to exist, the explanation must lie in another realm of
human behavior, a non-technical realm.

To quote Hardin: "It is fair to say that most people who anguish over
the population problem are trying to find a way to avoid the evils of
overpopulation without relinquishing any of the privileges they now enjoy."
With human morals in light, Hardin was effective in proposing a solution to
the population problem, a quandary complex enough to invoke nearly
inconceivable sacrifices in a sense that forces a collective consideration for
society. It seems natural to assume no strong inclination to address this
problem; however, in considering a finite world with exponential growth and
dependency on nonrenewable energy, scarcity will one day become
conceivable. It is through ideals of sustainable development that we must
address this issue. To avoid adverse effects of overpopulation without
sacrificing any privileges is the same as risking everything on one endeavor.

Is it normal human behavior in attending a legal gambling facility to

make just one bet? Do gamblers at the roulette table place all of their money
on one color, one number? No, they typically bet conservatively, hoping to
sustain their payroll until an opportunity comes along to make good on a bet.
Hardin becomes an icon of sustainable development as he proposes his
solution to the population problem with an underlying concept suggesting
that society needs to sacrifice our freedoms of breeding to allow freedoms
that are more important. His solution suggests meeting the needs of today
(sacrifice) to conserve the needs of future generations.

The Tragedy of the Commons develops through Hardin's cattle

herdsmen illustration in which the logic of the commons spawns tragedy.
With these herdsmen keeping their open grazing pastures as full of cattle as
possible, they are inexorably forced to answer a question concerning their
benefit of adding an additional animal to the herd. The answers, broken into
two components, to add or not to add, produce an unbalanced result favoring

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the addition of an animal. The positive outcome of adding another cow to the
herd outweighs the negative overgrazing effect possible from the decision.
An essential factor in this conscious decision is the acknowledgement of the
imbalance. The rational being knows that the adverse effects of overgrazing
will be shared among all.

"Ruin is the destination toward which all men rush, each

pursuing his own best interest in a society that believes in the
freedom of the commons. Freedom in a commons brings ruin to all"
(Hardin).

A major common that Hardin relates is our environment, vastly

threatened by pollution, a direct function of population growth. The moral in
judgment again lies on the lap of individualistic thought. It is easy for one's
waste to disappear into, let us say, a river. That is however, until the
individual considers who will be affected by his actions: his neighbors
downstream. There is no concern for pollution. An increase in the population
density forced humankind to learn the consequences of this "overgrazing
effect." It is concluded that the Tragedy of the Commons could be prevented
most effectively through incentive. To avoid pollution, it must be easier and
lower in cost to treat the pollutants, than to get rid of them untreated.
Therefore, through government and law, humankind will be compelled to
work in harmony.

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SYNOPSIS OF THE MAITHUNAN THEORY

Thomas Robert Malthus was the first economist to propose a

systematic theory of population. He articulated his views regarding
population in his famous book, Essay on the Principle of Population (1798),
for which he collected empirical data to support his thesis. Malthus had the
second edition of his book published in 1803, in which he modified some of
his views from the first edition, but essentially his original thesis did not
change.

On the basis of a hypothetical world population of one billion in the early

nineteenth century and an adequate means of subsistence at that time,
Malthus suggested that there was a potential for a population increase to
256 billion within 200 years but that the means of subsistence were only
capable of being increased enough for nine billion to be fed at the level
prevailing at the beginning of the period. He therefore considered that the

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population increase should be kept down to the level at which it could be

supported by the operation of various checks on population growth, which he
categorized as "preventive" and "positive" checks.

The chief preventive check envisaged by Malthus was that of "moral

restraint", which was seen as a deliberate decision by men to refrain "from
pursuing the dictate of nature in an early attachment to one woman", i.e. to
marry later in life than had been usual and only at a stage when fully capable
of supporting a family. This, it was anticipated, would give rise to smaller
families and probably to fewer families, but Malthus was strongly opposed to
birth control within marriage and did not suggest that parents should try to
restrict the number of children born to them after their marriage. Malthus
was clearly aware that problems might arise from the postponement of
marriage to a later date, such as an increase in the number of illegitimate
births, but considered that these problems were likely to be less serious than
those caused by a continuation of rapid population increase.

He saw positive checks to population growth as being any causes that

contributed to the shortening of human lifespans. He included in this
category poor living and working conditions which might give rise to low
resistance to disease, as well as more obvious factors such as disease itself,
war, and famine. Some of the conclusions that can be drawn from Malthus's
ideas thus have obvious political connotations and this partly accounts for
the interest in his writings and possibly also the misrepresentation of some of
his ideas by authors such as Cobbett, the famous early English radical.
Some later writers modified his ideas, suggesting, for example, strong
government action to ensure later marriages. Others did not accept the view
that birth control should be forbidden after marriage, and one group in

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particular, called the Malthusian League, strongly argued the case for birth
control, though this was contrary to the principles of conduct which Malthus
himself advocated.

SYNOPSIS OF THE NATURAL CAPACITY

Natural Capital is the environmental stock or resources of Earth that

provide goods, flows and ecological services required to support life.
Examples of natural capital include: minerals; water; waste assimilation;
carbon dioxide absorption; arable land; habitat; fossil fuels; erosion control;
recreation; visual amenity; biodiversity; temperature regulation and oxygen.
Natural capital has financial value as the use of natural capital drives many
businesses.

Current business practices; development patterns; environmental

modifications; exploitation of resources from other countries and government
policies are degrading or decreasing stocks of natural capital. This not only
has financial implications such as increased market prices due to resource
depletion, but also environmental implications as services provided by
ecosystems are damaged and unable to function effectively which in turn,
causes flow on effects. For example, as greenhouse gas emissions increase
and areas responsible for carbon sequencing decrease, global temperatures
rise, weather patterns change, sea levels increase, terrestrial and aquatic
ecosystems re-adjust and land usability patterns change.

Natural income is monetary income derived from natural capital.

However, protection and appropriate pricing of environmental resources has

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been largely neglected by economic theories and practices. If economic and

societal development is allowed to grow uncheck, stocks of natural capital
will continue to decline, resulting in problems for natural life support
systems, increased market prices and a decrease in the quality of human life.

Not all services or products provided by natural capital can be replaced

by technology and some alternatives are either expensive or inefficient.

Problems related to the protection of natural capital include the

inability of economics to appropriately model and price both market and non-
market environmental resources; lack of willingness to pay; lack of
knowledge about minimum levels or time spans required for resources to
replenish or renew; lack of knowledge regarding the interaction and
dependences between resources and their true value, usefulness or
necessity; poor management of trans-boundary resources; and inequalities
between developed and developing nations.

The concept of natural capital is used in other sustainability concepts

and tools, including ecological footprints, environmental accounting and eco-
efficiency.

SYNOPSISOF THE CASE FOR BIOTIC RIGHTS OF JAMES NASH

Nash argued that there has to be more than one basis for moral rights
not only the human right of universal equality. Biotic rights are an effort to
redefine responsible human relationships with the rest of 4 the planets

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beleaguered biota, and to ground these responsibilities not simply in human

generosity and utility but in moral claims inherent in their conation for
appropriate treatment Nash fully recognized that patriarchy and
anthropocentrism go together hand in glove.

Although Nash was critical of some of the uses of Natural Law, he

maintained that some version was necessary in order to do social ethics in a
pluralistic context. He saw some essential elements of natural law in
ecological ethics as an affirmation of objective moral values and norms,
which correspond to the conditions for flourishing among relational beings.
This includes a rational experiential method for evaluation and justifying
moral standards, and a dependence on and dialogue with empirical
disciplines in searching for moral norms. It also entails a quest for common
moral ground accessible in principle to all humanity and a necessary
autonomy from and yet compatibility with basic Christian affirmation of faith.

Nash was, however, deeply concerned that various expressions of the

natural law tradition were anthropocentric and had nothing to do with
ecological relatedness. That is, much of the natural law tradition simply
ignored the physical and biological non-human order. Nash called for a
universal and immanent moral order, where the words law and nature are
distinguished (i.e., law in the sense of moral norms and obligations) natural
(moral values should reflect the reality of human conditions and the planets
whole biota). These norms could be developed through natural reasoning
capacities, without relying upon special revelation, but always utilizing the
knowledge gained from the empirical sciences. For example, he called for an
ecosystemic compatibility adapting ecologically to natural cycles and
constraints and respecting ecosystemic values, an ecologically sensitive

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theology, the trans-valuing of value , the extension of covenant justice to

include all other life forms as beloved creatures- i.e., bioresponsibility , and
also reforming our virtues of sustainability and frugality.

THE RIO PRINCIPLES

PRINCIPLE 1

Human beings are at the centre of concerns for sustainable

development. They are entitled to a

healthy and productive life in harmony with nature.

PRINCIPLE 2

States have, in accordance with the Charter of the United Nations

and the principles of international

law, the sovereign right to exploit their own resources pursuant to

their own environmental and

developmental policies, and the responsibility to ensure that

activities within their jurisdiction or control

do not cause damage to the environment of other States or of areas

beyond the limits of national

jurisdiction.

2.

PRINCIPLE 3

The right to development must be fulfilled so as to equitably meet

developmental and

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environmental needs of present and future generations.

PRINCIPLE 4

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.

PRINCIPLE 5

All States and all people shall co-operate in the essential task of
eradicating poverty as an

indispensable requirement for sustainable development, in order to

decrease the disparities in

standards of living and better meet the needs of the majority of the
people of the world.

PRINCIPLE 6

The special situation and needs of developing countries, particularly

the least developed and

those most environmentally vulnerable, shall be given special

priority. International actions in the field

of environment and development should also address the interests

and needs of all countries.

PRINCIPLE 7

States shall co-operate in a spirit of global partnership to conserve,

protect and restore the

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health and integrity of the Earth's ecosystem. In view of the

different contributions to global

environmental degradation, States have common but differentiated

responsibilities. The developed

countries acknowledge the responsibility that they bear in the

international pursuit of sustainable

development in view of the pressures their societies place on the

global environment and of the

technologies and financial resources they command.

PRINCIPLE 8

To achieve sustainable development and a higher quality of life for

all people, States should

reduce and eliminate unsustainable patterns of production and

consumption and promote appropriate

demographic policies.

PRINCIPLE 9

States should co-operate to strengthen endogenous capacity-

building for sustainable

development by improving scientific understanding through

exchanges of scientific and technological

knowledge, and by enhancing the development, adaptation,

diffusion and transfer of technologies,

including new and innovative technologies.

3.

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PRINCIPLE 10

Environmental issues are best handled with the participation of all

concerned citizens, at the

relevant level. At the national level, each individual shall have

appropriate access to information

concerning the environment that is held by public authorities,

including information on hazardous

materials and activities in their communities, and the opportunity to

participate in decision-making

processes. States shall facilitate and encourage public awareness

and participation by making

information widely available. Effective access to judicial and

administrative proceedings, including

redress and remedy, shall be provided.

PRINCIPLE 11

States shall enact effective environmental legislation.

Environmental standards, management

objectives and priorities should reflect the environmental and

developmental context to which they

apply. Standards applied by some countries may be inappropriate

and of unwarranted economic and

social cost to other countries, in particular developing countries.

PRINCIPLE 12

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States should co-operate to promote a supportive and open

international economic system that

would lead to economic growth and sustainable development in all

countries, to better address the

problems of environmental degradation. Trade policy measures for

environmental purposes should

not constitute a means of arbitrary or unjustifiable discrimination or

a disguised restriction on

international trade. Unilateral actions to deal with environmental

challenges outside the jurisdiction of

the importing country should be avoided. Environmental measures

addressing transboundary or

global environmental problems should, as far as possible, be based

on an international consensus.

PRINCIPLE 13

States shall develop national law regarding liability and

compensation for the victims of pollution

and other environmental damage. States shall also co-operate in an

expeditious and more

determined manner to develop further international law regarding

liability and compensation for

adverse effects of environmental damage caused by activities within

their jurisdiction or control to

areas beyond their jurisdiction.

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PRINCIPLE 14

States should effectively co-operate to discourage or prevent the

relocation and transfer to

other States of any activities and substances that cause severe

environmental degradation or are

found to be harmful to human health.

PRINCIPLE 15

In order to protect the environment, the precautionary approach

shall be widely applied by

States according to their capabilities. Where there are threats of

serious or irreversible damage, lack

of full scientific certainty shall not be used as a reason for

postponing cost-effective measures to

prevent environmental degradation.

4.

PRINCIPLE 16

National authorities should endeavour to promote the

internalization of environmental costs and

the use of economic instruments, taking into account the approach

that the polluter should, in

principle, bear the cost of pollution, with due regard to the public
interest and without distorting

international trade and investment.

PRINCIPLE 17
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Environmental impact assessment, as a national instrument, shall

be undertaken for proposed

activities that are likely to have a significant adverse impact on the

environment and are subject to a

decision of a competent national authority.

PRINCIPLE 18

States shall immediately notify other States of any natural disasters

or other emergencies that

are likely to produce sudden harmful effects on the environment of

those States. Every effort shall be

made by the international community to help States so afflicted.

PRINCIPLE 19

States shall provide prior and timely notification and relevant

information to potentially affected

States on activities that may have a significant adverse

transboundary environmental effect and shall

consult with those States at an early stage and in good faith.

PRINCIPLE 20

Women have a vital role in environmental management and

development. Their full

participation is therefore essential to achieve sustainable

development.

PRINCIPLE 21

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The creativity, ideals and courage of the youth of the world should
be mobilized to forge a

global partnership in order to achieve sustainable development and

ensure a better future for all.

PRINCIPLE 22

Indigenous people and their communities, and other local

communities, have a vital role in

environmental management and development because of their

knowledge and traditional practices.

States should recognize and duly support their identity, culture and
interests and enable their

effective participation in the achievement of sustainable

development.

PRINCIPLE 23

The environment and natural resources of people under oppression,

domination and

occupation shall be protected.

5.

PRINCIPLE 24

Warfare is inherently destructive of sustainable development.

States shall therefore respect

international law providing protection for the environment in times

of armed conflict and co-operate in

its further development, as necessary.

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PRINCIPLE 25

Peace, development and environmental protection are

interdependent and indivisible.

PRINCIPLE 26

States shall resolve all their environmental disputes peacefully and

by appropriate means in

accordance with the Charter of the United Nations.

PRINCIPLE 27

States and people shall co-operate in good faith and in a spirit of

partnership in the fulfilment of

the principles embodied in this Declaration and in the further

development of international law in the

field of sustainable development.

FISHERIES CODE

Section 20. Fisherfolks Organizations and/or Cooperatives. Fisherfolk organizations /

cooperatives whose members are listed in the registry of municipal fisherfolk, may
be granted use of demarcated fishery areas to engage in fish capture, mariculture
and/or fishfarming: Provided, however, That an organization/cooperative member
whose household is already in possession of a fishery right other than for fish
capture cannot enjoy the fishing rights granted to the organization or cooperative.

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