Table of Contents

The Forgotten Decade: The Legislative Conservation of Game, Fish and Timber in 1860s Victoria

Tristan Orgill, Australian National University, College of Law, Students

The Enforcement-Compliance Paradox: Lessons About Matching Regulatory Priorities to Compliance Motivations from Pesticide Regulation in China

Huiqi Yan, University of Amsterdam - Faculty of Law
Benjamin van Rooij, University of California, Irvine School of Law, University of Amsterdam - Faculty of Law
Jeroen van der Heijden, Senior Research Fellow, Regulatory Institutions Network (RegNet), School of Regulation, Justice and Diplomacy, Australian National University (ANU), Assistant Professor, Amsterdam Law School, University of Amsterdam

Compulsory Water Fluoridation: Justifiable Public Health Benefit or Human Experimental Research Without Informed Consent?

Rita Barnett-Rose, Chapman University, The Dale E. Fowler School of Law

Understanding Local Policy Elites’ Perceptions on the Benefits and Risks Associated with High Voltage Power Line Installations in the State of Arkansas

Rachael M. Moyer, University of Arkansas - Department of Political Science
Geoboo Song, University of Arkansas - Department of Political Science

How Much Would Environmental Issues Cost? The Internalisation of Environmental Costs in the European Transport Industry

Vera Ferrón-Vílchez, University of Granada
José Manuel De la Torre Ruiz, University of Granada
Natalia Ortiz?de?Mandojana, University of the Balearic Islands

The 'Rules of Engagement': A Socio-Legal Framework for Improving Community Engagement in Natural Resource Governance

Tanya Howard, University of New England (Australia) - The Australian Centre for Agriculture and Law


ENVIRONMENTAL LAW & POLICY eJOURNAL

"The Forgotten Decade: The Legislative Conservation of Game, Fish and Timber in 1860s Victoria" Free Download
ANU College of Law Honours Thesis No. 15-01

TRISTAN ORGILL, Australian National University, College of Law, Students
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Between 1851 to 1860, an unprecedented ‘gold rush’ wrought a profound transformation upon the fledgling state of Victoria. By 1860, Victoria’s population had increased sevenfold and the colony was attracting ‘worldwide fame’ as one of Britain’s wealthiest settlements. However, this colonial prosperity came at a high environmental cost. Whether by land clearing for agriculture or mining, industrial and urban pollution, or the over exploitation of game, fish and timber - colonial progress often meant, as one colonist observed, that ‘every feature of nature [was] annihilated’. Almost all historians have argued that the environmental degradation of Victoria was an inevitable consequence of the widespread antipathy (or antagonism) of Victorians to what they perceived as a foreign and ugly environment. Whilst some colonists called for restraint, ‘the colonial project - to master, develop, and prosper - overwhelmed the faint cry of such sentiments’.

This paper will contend that this dominant historical narrative is specious and inconsistent with surviving primary source material. Not only was environmental concern prevalent in Victorian society, popular concern persuaded Parliament to enact considerable environmental legislation throughout the 1860s. Historians have either blithely dismissed or simply ignored the history of this legislation. This is perplexing given that the development of law provides a critical insight into Victorian society’s commitment to - and reasons for - addressing environmental concerns. Thus, this paper examines the three most significant environmental regimes enacted throughout the 1860s: namely, the game, fish and timber statutes.

It will be shown that these regimes were primarily justified by utilitarian conservation arguments and, additionally, that aesthetic and moral considerations were vital. The existence and influence of a ‘proto-preservationist philosophy’, which underpinned the enactment of these statutes, disproves the orthodox historical narrative that colonial society was generally apathetic to environmental degradation and that colonists who voiced concerns were ‘insignificant’.
Supervisor: Prof Tim Bonyhady

"The Enforcement-Compliance Paradox: Lessons About Matching Regulatory Priorities to Compliance Motivations from Pesticide Regulation in China" Free Download
UC Irvine School of Law Research Paper No. 2015-24

HUIQI YAN, University of Amsterdam - Faculty of Law
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BENJAMIN VAN ROOIJ, University of California, Irvine School of Law, University of Amsterdam - Faculty of Law
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JEROEN VAN DER HEIJDEN, Senior Research Fellow, Regulatory Institutions Network (RegNet), School of Regulation, Justice and Diplomacy, Australian National University (ANU), Assistant Professor, Amsterdam Law School, University of Amsterdam
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Studying amoral cost benefit analysis, legitimacy and capacity to obey the law this paper seeks to understand why Chinese farmers obey or break pesticide rules.. It uses data gathered through intensive local level fieldwork including interviews with 31 pesticide experts and officials and 119 vegetable farmers in the central China. The paper uncovers an enforcement-compliance paradox: a situation where law enforcement is prioritized exactly on those rules least likely broken and the regulated actors most likely to comply. It finds two explanations. First, enforcement policy simply may not be aware which rules and regulated actors have more compliance even when there is limited deterrence. Second, technocratic risk-averse enforcement policy may be oriented at those rules and actors where violation (theoretically) results in the largest damages, not at those rules more likely broken and actors more likely to break them.

"Compulsory Water Fluoridation: Justifiable Public Health Benefit or Human Experimental Research Without Informed Consent?" Free Download
39 Wm. & Mary Envtl. L. & Pol'y Rev. 201 (2014)

RITA BARNETT-ROSE, Chapman University, The Dale E. Fowler School of Law
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Most Americans are under the impression that compulsory water fluoridation is a safe and effective public health measure to fight tooth decay, and courts have routinely upheld compulsory water fluoridation schemes as legitimate exercises of police power to ensure the dental health of communities. Yet the evidence is steadily mounting against water fluoridation, with recent scientific studies suggesting that not only is fluoridation not effective at achieving the stated public health goal of combating dental caries, but also that excess exposure to fluoride contributes to a host of far more serious health concerns, particularly in the very population the public health measure was originally alleged to benefit -- children. With growing evidence suggesting that systemic intake of excess fluoride is linked to dental and skeletal fluorosis, endocrine disruption, hypothyroidism, bone cancer, and lowered IQ’s in children, it is perhaps not surprising that hundreds of U.S. and Canadian cities and towns are now opting to either reject or cease fluoridating their water supplies, joining over 97% of Europe and most of the developed world in rejecting compulsory water fluoridation.

In 2011, in light of new scientific evidence as well as the recommendation by the National Research Council (“NRC?), the Environmental Protection Agency (“EPA?) announced its intention to re-examine its currently allowed Maximum Contaminant Levels (MCL) of fluoride in drinking water. EPA’s decision was based on the 2006 NRC report recommending that EPA lower its allowable fluoride levels, due to the numerous studies linking serious health problems with excess exposure to fluoride, as well as the significant gaps in research establishing the safety of systemic fluoride intake. Shortly after EPA made its own announcement, the Department of Health and Human Services recommended that community water districts lower their allowable fluoride levels to .7 ppm, the lowest level in a range earlier recommended by DHHS. This change sprang from DHHS’s recognition that original “optimal? fluoride levels were set without considering human fluoride consumption from other products, including fluoridated toothpaste and food and beverages made with fluoridated water.

Although the EPA to date has not yet come out with any revised Maximum Contaminant Levels for fluoride, this article is first to suggest that, in light of the mounting scientific evidence and ongoing federal agency reconsideration of safe fluoride levels in drinking water, compulsory water fluoridation must now be reassessed to determine whether it remains both legally and ethically justifiable as a coercive public health measure. Specifically, this article analyzes whether compulsory water fluoridation can withstand systematic scrutiny of its risks, benefits, human rights burden and economic costs, or whether the significant gaps in research suggest that compulsory water fluoridation is more properly viewed as human subjects experimental research, requiring the application of strict informed consent and vulnerable population control protocols.

"Understanding Local Policy Elites’ Perceptions on the Benefits and Risks Associated with High Voltage Power Line Installations in the State of Arkansas" Free Download

RACHAEL M. MOYER, University of Arkansas - Department of Political Science
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GEOBOO SONG, University of Arkansas - Department of Political Science
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Recently, a controversial policy debate has arisen concerning the installation of high voltage power lines in northwest Arkansas. While proponents argue that such an installation is inevitable to efficiently and reliably support the identified electric load in the region, opponents claim that the lines will degrade the natural environment and hamper the tourism-based local economy in affected regions, notably in Ozark Mountain areas. Of particular interest is to understand how local policy elites perceive the benefits and risks associated with such divisive proposals, which is critical for comprehending the formation and changes of related government policies. Based upon the dual process theory of judgment, this study systematically investigates the triadic relationships between (a) more profound personal value predispositions, (b) affects and feelings, and (c) perceived benefits and risks related to the proposed installation of high voltage power lines among local policy elites in the state of Arkansas. In doing so, we analyze original data collected from a statewide Internet survey of 420 local leaders and key policymakers about their opinions on the related issues, while considering other factors claimed by previous literature, including “trust,? knowledge level, and demographic characteristics. Analytical results suggest that grid-group cultural predispositions, as deeply held core values within local policy elites’ individual belief systems, both directly and indirectly – through affective feelings – shape perceived utility associated with the installation of high voltage power lines. We conclude this paper by suggesting some practical considerations for better designing policy addressing controversial issues of this nature.

"How Much Would Environmental Issues Cost? The Internalisation of Environmental Costs in the European Transport Industry" Free Download
Environmental Engineering and Management Journal, 2015. Forthcoming

VERA FERRÓN-V?LCHEZ, University of Granada
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JOSÉ MANUEL DE LA TORRE RUIZ, University of Granada
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NATALIA ORTIZ?DE?MANDOJANA, University of the Balearic Islands
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Environmental issues have over the last few years become an increasing concern for both the public and for companies, but, less is known about how companies could internalize the negative effects of environmental issues. Public regulators are taking a tougher stance with regards to environmental regulations. As regulations become stricter, firms will have to pay the cost of compliance. In this paper, we attempt to shed some light on how firms could internalize these environmental effects and what the benefits of early internalisation could be. We do this by using a qualitative analysis, elaborating a case study in the Spanish road freight transport industry (i.e., international transport of goods by road) to compare the environmental behaviour of the analyzed company in 2009 and its current environmental approach. By conducting interviews in two differentiated periods, the main conclusion of this study is that, as regulation becomes more stringent, environmentally proactive firms will be more capable of facing the challenge of an accurate internalisation of environmental effects and consequently they could reinforce sustainable development and simultaneously reduce negative environmental impacts.

"The 'Rules of Engagement': A Socio-Legal Framework for Improving Community Engagement in Natural Resource Governance" Free Download
Oñati Socio-Legal Series, 2015 Forthcoming

TANYA HOWARD, University of New England (Australia) - The Australian Centre for Agriculture and Law
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English Abstract: Increasing community action in natural resource governance is commonly seen as a pathway for improving decision making, enabling increased on-ground activity and facilitating widespread acceptance of government and industry legitimacy in managing natural resources. Other perspectives on community engagement see the promise of enriching existing or emerging democratic values by addressing the limitations of representative governance. While the practice of community engagement has been well described, more work needs to be done to understand the institutional factors that contribute to the expectations attached to these practices, and how the role of community in natural resource governance can be improved.

This article presents findings from a review of academic and practitioner literature on the topics of community engagement and natural resource governance. 127 articles were reviewed and the resulting conceptual framework is described. A thematic analysis of the data-set was then conducted to further clarify and extend the research question. The results reveal a persistent focus on practical aspects of engaging community, without sufficient analysis of how institutional dynamics such as legal requirements, policy drivers and implementation contexts impact on the realities of community environmental governance. The paper concludes with future research directions in the pursuit of improving the role of community in natural resource governance. It is expected that the insights generated through this article will have relevance to other modern democratic societies and be of interest to environmental lawyers, policy makers and community advocates.

Spanish Abstract: El aumento de la acción comunitaria en la gobernanza de los recursos naturales habitualmente se percibe como una vía para mejorar la toma de decisiones ya que permite aumentar la actividad sobre el terreno, y facilita la aceptación generalizada de la legitimidad del gobierno y la industria a la hora de gestionar los recursos naturales. Otras perspectivas de la implicación de la comunidad perciben la promesa de enriquecimiento que existe en los valores democráticos emergentes, abordando las limitaciones del gobierno representativo. Mientras que se ha descrito de forma correcta la práctica de la participación comunitaria, aún queda trabajo por delante para comprender los factures institucionales que contribuyen a las expectativas unidas a estas prácticas, y cómo mejorar el papel de la comunidad en la gestión de los recursos naturales.

Este artículo presenta los resultados de una revisión de la literatura académica y profesional sobre estos temas: participación comunitaria y gobierno de los recursos naturales. Tras revisar 127 artículos, se describió el marco conceptual resultante. A continuación, se realizó un análisis temático del conjunto de datos para aclarar y ampliar el tema de investigación. Los resultados revelan un foco persistente en los aspectos prácticos de la comunidad cooperante, sin ofrecer un análisis suficiente de cómo las dinámicas institucionales, como los requisitos legales, los impulsores de políticas y los contextos de implementación impactan en las realidades del gobierno medioambiental de forma comunitaria.

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ENVIRONMENTAL & NATURAL RESOURCES LAW EJOURNALS

BERNARD S. BLACK
Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

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Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

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