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Iguazu Falls, Argentina.
Photo courtesy of Alexandre Lessard, JSDLP Associate Editor
Volume 8:1 (2012)
Économie verte : La feuille de route du PNUE au regard des règles de l’Organisation mondiale du commerce
Abstract: The World Trade Organization (WTO), created in 1995, now drives the free market at the international level. Its objective is simple: support the global economy, and increase trade, investment, employment, and profit worldwide. To achieve this objective, the Members of the WTO agreed to reduce the obstacles to free trade—protectionism and discrimination—in accordance with the goal of sustainable development. Sustainable development, however, as a concept that resists precise definition, necessarily implies the imposition of obstacles to free trade to allow for the protection of social rights and the environment. In this context, we must question whether and how the concept of sustainable development can be inserted into the dynamic of international trade as regulated by the WTO. This article shall examine this question concretely, starting with a report published by the United Nations Environment Programme (UNEP) that suggests a series of measures to improve the global transition to a green economy. While we acknowledge that the WTO law complies with environmental norms more often than not, and that the vast majority of the UNEP’s suggestions respect free-market principles, we must nonetheless remain critical of this approach which has established itself without opposition in the dominant perspective of economic law.
Corporate Sustainability and Brazilian CDM Project Governance
John C. Cole
Abstract: The Kyoto Protocol Clean Development Mechanism (CDM) delegates exclusive jurisdiction to assess and approve the sustainable development aspects of proposed CDM projects to host country governments. Brazil’s state-based CDM governance regime focuses narrowly on the greenhouse gas emission reduction aspects of proposed Brazilian CDM projects and compliance with Brazil’s labour and environmental laws. This creates a vacuum of state-actor regulation requiring other environmental, social and economic sustainable development benefits specifically from CDM projects. Using a legal pluralism approach, this article examines the neo-regulatory impact of Brazil’s corporate sustainability movement through twelve Brazilian CDM case studies. It concludes that the resulting sustainable development benefits have not only begun to fill the regulatory vacuum resulting from Brazil’s narrow emission reduction focus, but have also begun to address some aspects of the vacuum created by the Brazilian government’s inability to provide comprehensive health, education and cultural services in the communities surrounding the case study projects. The resulting sustainability programs thus arise from a hybrid governance regime, which itself gives rise to an emerging corporate hegemony whereby corporations preserve and pursue their own interests, often by outpacing Brazilian local government and civil society actors. This article explores the possibility of addressing these neo-regulatory influences within Brazil’s formal CDN governance regime. Whether as a part of Brazil’s state-based CDM governance regime or outside of it, this article concludes that greater balance could be achieved by upgrading the institutional capacity of Brazilian government and civil society actors such that they are capable of (a) identifying and lobbying for regulation furthering community sustainable development values, and (b) actively engaging in a mature multi-stakeholder dialogue that negotiates and contests the resulting corporate sustainability programs’ objectives and activities.
Exploring the Mining "Money Trail": Assessing British Columbia's Mining Tax Regime and Unearthing Legal Tools that Foster Greater Returns for Local Communities
Abstract: The metal mining industry has long been an important pillar of the British Columbia (BC) economy. As mineral ore is a nonrenewable resource, however, its value to the local region can quickly dissipate once the resource has been exhausted, leaving few long-term benefits. The tax regime can be a powerful tool for overcoming this problem. This article begins with an assessment of the tax regime under which the metal mining industry in BC currently operates. This review highlights several concerns that indicate that the tax regime is falling short of its full potential for securing long-term benefits to local communities. Methods of increasing the retention and distribution of social and economic benefits are thus explored based on approaches adopted in other jurisdictions both within Canada and abroad. These include generalized tax measures, as well as specific provisions aimed at benefiting local communities, protecting the environment, and encouraging greater innovation in the industry. With an increasing emphasis on expanding existing mines and building new ones across BC, this study comes at an opportune time and offers some concrete means to forge a more valuable tax regime—one that retains benefits in locally impacted communities long after the metal resources have been mined.
Case Comment: Three's (No Longer) A Crowd: The Abandonment of the Federal Defendant Rule by the Ninth Circuit in the Context of NEPA Claims
Stinson Woodward Ferguson
Abstract: The National Environmental Policy Act (NEPA) requires every agency in the executive branch of the federal government to assess environmental consequences prior to taking actions which significantly affect the quality of the human environment. The procedural requirements of NEPA have generated an enormous amount of litigation, largely over the question of whether a project’s impacts are sufficiently “significant” to require a detailed environmental impact statement, and particularly in the western United States. Until 14 January 2011, it was well-settled in the United States Ninth Circuit that when a claim was brought under NEPA and a private party, state government, or local government sought to intervene as a matter of right, the “none but a federal defendant rule” (“federal defendant rule”) categorically precluded such groups from doing so. On 14 January 2011, after considering history, precedent, and the jurisprudence of sister circuits, the Ninth Circuit Court of Appeals abandoned the federal defendant rule in the Wilderness Society v United States Forest Service. While the court provided several justifications for its decision, it never once acknowledged the uniqueness of the Ninth Circuit, of NEPA litigation, or of NEPA’s critical role as a tool for environmentalists. The true failure here is the manner in which federal agencies are fulfilling their responsibilities under NEPA. Abandoning the rule did not address that failure, and may actually exacerbate it. This case comment highlights the implications of the abandonment of the federal defendant rule from the perspectives of the NEPA plaintiff, the NEPA federal defendant, and the proposed NEPA intervenor. Although the Ninth Circuit’s holding was sound and accurately interpreted the law, it failed to discuss significant consequences for environmentalists, and several other issues that will still have to be considered by future courts.
Book Review: Should We Be So Positive About Environmental Rights?
Reviewed: David R Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (Vancouver: UBC Press, 2012).
Book Review: The Origins of Divergence: China, Europe, and the Future of Development
Reviewed: Jean-Laurent Rosenthal & R Bin Wong, Before and Beyond Divergence: The Politics of Economic Change in China and Europe (Cambridge: Harvard University Press, 2011).