Issues in Coverage for Preexisting Pollution Conditions under Pollution Liability Insurance Policies

Pollution liability insurance policies provide coverage for claims and costs associated with pollution conditions that develop and commence during the policy period. Coverage under such policies for claims arising from pollution conditions that existed before the policy incepted, however, varies significantly under different policy forms. This article addresses the two principal means that insurers have utilized to limit the risks associated with preexisting pollution conditions under pollution policies: the known conditions exclusion and retroactive date provisions. The article explains that these provisions have received mixed treatment in the courts and are likely to continue to be a focus of future coverage litigation involving environmental impairment liability and pollution legal liability policies.     

Local causes,regional co-operation and global financing for environmental problems: the case of Southeast Asian Haze pollution

Lack of action on cross-border environmental problems in developing countries is often ascribed to gaps in local capacity and resources, failure of regional cooperation and lack of financial support from rich countries. Using the case of the Southeast Asian Haze pollution from forest and peat fires in Indonesia, we explore the challenges posed by environmental problems whose causes are closely linked to local development and livelihood strategies, and whose impacts are local, regional (haze) as well as global (carbon emissions). We assess whether there are real opportunities to implement effectively the recent Association of Southeast Asian Nations (ASEAN) Agreement on Transboundary Haze Pollution. To address the deep determinants behind haze pollution, we propose signatories to the Agreement refocus their efforts to controlling peat fires rather than to strive for a zero-burning regime. We also recommend a new approach to financing sustainable development based on rules and incentives, with a regional pool of funds, contributed by rich countries through the Global Environment Facility and countries in Southeast Asia.

论我国刑法第338条的立法缺陷与完善--以犯罪构成要件为视角

作为1997年刑法增设的一个罪名,重大环境污染事故罪有诸多理论与实践问题值得探讨.其主观构成要件、侵犯的客体,等等,多年来学界争议颇多.对上述问题进行深入探讨,有利于正确掌握该罪的犯罪特点,准确适用刑法.刑法第338条规定的重大环境污染事故罪是结果犯,以行为造成法定严重后果为行为构成犯罪之必要条件,不利于打击所有污染环境的犯罪行为.为促进环境的可持续发展,建议对该条予以修改和完善,增加危险犯条款.     

The Progression Towards Ecological Quality Standards

Environmental law still lacks coherence in many respects. Twokey areas of UK and EC law—water pollution control andbiodiversity protection—are examined to see whether itis possible to adopt more common approaches. A key developmentin pollution control law was its redirection in the last twentyyears from a largely reactive instrument towards one embeddedin the realisation of environmental quality objectives throughprecisely stated quality standards. On closer inspection, manyof these standards, though, are anthropocentric in origin. Theapproach of using the law purposively to achieve defined objectivesis much better developed in pollution legislation as comparedto the law on biodiversity protection. The latter area now needsto see a similar development in ecological quality standards,while recognising that their formulation is a significantlydifferent exercise from that of establishing environmental qualitystandards. The use of ecological quality standards in the WaterFramework Directive is commendable, but there remain substantialreservations about the criteria adopted and the underlying basisfor ecological valuation.     

国际生态环境问题及其对我国环境立法的启示

当今一系列的生态环境问题 ,包括生物多样性锐减、森林面积减少、土地资源状况恶化、水环境恶化、气候变暖等已日趋国际化 ,严重危及到整个人类的生存。这些问题往往是在各国国内进行的国际法未加禁止行为造成的。在这样的情况下 ,本文指出了当今我国生态环境保护立法方面的缺陷 ,其中涉及到管理体制、立法意识、现行法律本身等问题。面对这些问题 ,文章指出我国生态环境立法要加快与国际接轨 ,树立风险防范原则的立法理念等一系列措施 ,以达到可持续发展的目的。     

Recent Australian Market Mechanisms as a Component of an Environmental Policy That Can Make Choices Between Sustainability and Social Justice

Markets in terms of tradeable water or pollution rights, are increasingly being offered as rational solutions for environmental problems. The rational pursuit of personal gain through trading is assumed to promote increased efficiency in resource use and promote a reduction in the negative aspects of the resource use. The social and distributive effects of the introduction of markets and their rules and operations have received little concerted study and examination. In this paper the role of justice considerations in the development of economically rational environmental decision making will be addressed through some case studies of rural water markets and urban water markets in Australia.     

论代工工厂模式的法律规制

近年来,我国代工工厂与日俱增,在促进就业和增加税收的同时,也引发了环境污染、工人自杀、工厂爆炸、工伤等一系列社会问题,备受公众和学界的关注,建议出台相关法律对代工工厂模式进行规制.事实上,解决这个问题的关键在于如何认定原始设计制造商与代工工厂及其劳动者的法律关系,它们既相互独立又存在一定管理和被管理关系.因此,应当以雇佣合同对代工工厂模式进行具体的法律规制,从而明确代工雇佣合同的内涵、特征、法律效力.当损害发生时,通过损害赔偿请求权来保障代工工厂、劳动者、第三人的合法权益,促进代工工厂在中国健康、和谐发展.     

Environmental liability reform and privatization in Central and Eastern Europe

The legacy of severe environmental degradation inherited by the new Central and Eastern European (CEE) economies requires liability reform to aid the cleanup of existing pollution sources and create incentives for future environmental risk reduction. The paper analyzes a host of liability approaches to meet these goals, given economic and institutional characteristics specific to the CEE nations, and explores the impact of environmental liability rules on privatization and foreign investment. A principal conclusion of the analysis is that, for a host of efficiency-based reasons, liability should not be retroactively applied to the new owners of privatized firms. Also, the paper advocates the use of national liability funds to finance the cost of existing liabilities, while highlighting dangers associated with their use. In addition to the desirability of alternative privatization mechanisms, the paper also analyzes altemative liability rules to govern prospective environmental hazards.     

Identifying what works: Recent trends in crime prevention strategies

This paper reviews lessons learned from evaluations of crime prevention programs in the past three decades and discusses how crime prevention approaches have changed in terms of theory, research, evaluation, and public policy. We argue that present strategies of crime prevention may be best understood by tracing the failures of earlier American crime prevention efforts. The paper discusses different types of crime prevention strategies and draws upon examples from developmental, law enforcement, and criminal justice approaches. From this discussion emerges a set of principles for a new approach to crime prevention that is specific in terms of the problems addressed and the contexts examined. The paper concludes with examples of recent crime prevention strategies that utilize these lessons and that appear to have promising effects on crime. While these approaches suggest optimism in terms of the crime prevention potential of new strategies, we urge caution in that these new crime prevention efforts are at an early stage of development. This revised version was published online in July 2006 with corrections to the Cover Date.     

A Perspective on Policy and Practice in the Re-Integration of Offenders

Concentrations of unemployment and crime are promoting a slow crisis in the lives of unskilled young men, and obstruct the successful re-integration and resettlement of offenders. At the same time, criminal justice system programmes for offenders are seeking a new balance between treatment approaches and the creation of opportunities. In this article the author reflects on the policy frameworks which give rise to these approaches, and considers the danger that criminal justice systems may place emphasis on diverting people from crime without directing them towards opportunities for re-integration. The author considers the needs of offenders in relation to housing and employment in particular.     

Population bio-banks: a juridical analysis based on Icelandic and Estonian experience]

Large-scale collections of human biological samples and associated data are becoming increasingly common as a means of identifying, in a particular population, genetic predispositions to complex diseases that result from an interaction of environmental, lifestyle and genetic factors. This paper compares the recent experiences of Iceland and Estonia in the establishment of population biobanks as well as the specific law passed by both countries to deal with this matter. In the light of this comparative analysis, this paper summarizes the main ethical and policy dilemmas posed by large-scale biobanks and suggests some possible solutions to these new challenges.     

Accountability and Systems of Self-Governance: The Case of the Maritime Industry

Environmental policy has predominantly been informed by a command-and-control policies. There are reasons to believe that the benefits of command-and-control regulations are diminishing or increasingly difficult to measure, whereas the cost of their enforcement is rising. In this paper, I argue that these problems could be overcome if it is recognized that the state is but one source of individual and organizational accountability. I illustrate this argument by discussing the case of the international marine industry. I argue that the marine industry is but one instance of a wide variety of systems of self-governance. In the final section, I outline an innovative approach to the management of environmental risks, and make suggestions for further investigations.     

Beyond innovation: the Small Business Innovation Research program as entrepreneurship policy

Entrepreneurship or new firm formation plays an increasingly important role in knowledge-based economic development. Public policy to encourage new firm formation has not focused on high quality, high potential firms, and the search for entrepreneurship policy with high economic impact is still needed. This research evaluates the efficacy of the US Small Business Innovation Research (SBIR) program from the perspective of promoting high technology entrepreneurship. In particular, we examine whether the local presence of SBIR awards is associated with increased new firm formation rates in the high technology sector. Although the primary objective of SBIR is to facilitate technological commercialization in small businesses, our policy analysis based on spatial multivariate methods suggests that this program may also serve as an effective entrepreneurship policy.     

Risk-sharing agreements to cover environmental damage: theory and practice

Mordernization has witnessed increasingly new industrial sectors which have the potential to create environmental disasters. The insolvency of risk creators in case of such disasters may lead to insufficient compensation as well as to a dilution of preventive incentives. Insurance is a traditional instrument to address these problems, but is subject to limitations such as the lack of information by the insurers on the risk and limited insurance capacity. The risk-sharing agreement is an alternative which is widely used in high-risk sectors but it received relative little attention in academic literature. This paper analyses the potential of risk-sharing agreements in minimizing total social costs of environmental harmful activities, in comparison with insurance. The comparison shows the advantage of risk-sharing agreements in terms of less demanding information requirements, allowing for mutual monitoring and the potential to reduce administrative costs. However, the analysis also shows that a few conditions need to be met for such advantages to be materialized. This paper then discusses a typology of various risk-sharing agreements and illustrates the different categories with examples from the maritime and nuclear sectors. Based on these experiences, this paper explores the possibilities to expand risk-sharing agreements to other policy areas where environmental risks may emerge.     

Managing the HIV/AIDS Pandemic: Paving a Path into the Future of International Law and Organization

Complex global interdependence continues to influence international legal and political affairs at the close of the twentieth century. As interdependence has tightened, non‐state actors have emerged in many policy areas as key political and service delivery players; often supporting increasingly prioritized human‐centered issues. Analysis of the global management of the HIV/AIDS pandemic suggests that use of international quasi‐legislation can be employed in order to create space within which to manage these changes, thus opening room for discussion about new approaches to meeting the challenges of a changing world.     

Linking Law and New Governance: Examining Gaps,Hybrids, and Integration in Water Policy

Since the 1980s there have been significant shifts from traditional environmental enforcement toward networks, cooperation, and more pluralized forms of governance. The most recent iterations of these new approaches are increasingly characterized as New Environmental Governance (NEG). A range of common characteristics that include collaboration, participation, adaptation, and nonbinding guidelines and agreements define NEG approaches. Despite a growing NEG literature, it is unclear whether and how NEG can be effectively implemented in the same policy domain as traditional hard law. This article empirically explores and theorizes the dynamics of NEG's interaction with conventional law. It proposes a spectrum of eight possible interactions between traditional law and NEG approaches, before evaluating three distinct perspectives, namely, gaps, NEG in the shadow of the law, and integration. It studies these relationships by empirically evaluating three case studies from Australia, New Zealand, and the United States that correspond to these interactions. The article explores the strengths and weaknesses of the three relationships. It finds that a significant barrier to achieving productive cohesion between law and NEG is the worldview of regulators, who eschew NEG collaboration as ineffectual or incompatible with hard law. Recommendations are offered on how to better achieve cohesive implementation between law and NEG.     

环境税收制度的价值定位及改革方向

伴随着工业化进程所带来的严重的生态危机,人类不断探寻更为有效的保护环境的新举措。建立环境税收制度,将税收和环保结合起来,可以发挥税收在控制污染、调节资源配置方面的作用;应以可持续发展为核心,以生态利益为本位,以实现代际公平为主要目标;应改革传统排污收费制度、调整资源税和消费税、完善税收优惠政策和征管制度,从而构建我国新型的环境税收制度。     

New Regulatory Approaches in 'Greening' EU Policies

European environmental policy has been long characterised by traditional regulatory policy approaches. In recent years, however, the EU has begun experimenting with new forms of governance. In particular, the task of environmental policy integration (EPI) into sectoral policies has invited more flexible and participatory regulatory forms, emphasising at the same time the role of procedural guidance. This article traces the history of the EPI principle and links its effectiveness to specific governance characteristics. It argues that effective EPI is dependent on a combination of political leadership and public participation. While both terms appear in the EU's vocabulary on sustainable development and new governance, the EU is only slowly finding the appropriate forms to put them into practice. Coming from a tradition of governance by political élites, EU policy-makers are still relying too naïvely on the mobilisation capabilities of societal groups and on the power of 'good ideas'.     

Competition for Sustainability: Sustainable Development Concerns in National and EC Competition Law

Competition law has become increasingly important in regulating the economy. This article aims to explore how domestic competition law relates to sustainable development. It distinguishes three ways that competition law can take into account environmental and social priorities: through substantive competition rules fostering social or ecological purposes; through exceptions, exemptions and exclusions; and through the enhanced application of competition laws. The first form is very interesting and currently not very widely used. Only a very few countries, such as South Africa, have included substantive provisions to promote social development in their competition laws. Most countries allow for some version of the second form of sustainable competition law. Few countries' laws are as outspoken about their public policy goals as is Spain in its new draft competition law. This new draft law explicitly lists environmental protection and social policies as grounds upon which the government could repeal a competition decision. The third form is relatively unproblematic as it creates a win-win situation for competition and sustainable development. This article surveys some of the most interesting competition law developments across the world and indicates where these domestic regimes take into account environmental or broader social issues when making competition-related decisions such as merger approvals.     

An appraisal of the legal frameworks for the control of environmental pollution in Nigeria

This article examines Nigeria’s pollution abatement laws. It highlights some of the problems of these laws, as well as other factors hindering the control of environmental pollution in Nigeria. The article suggests a comprehensive review of most pollution abatement laws with a view to entrenching adequate penal sanctions and enhancing the powers of regulatory institutions and also increasing public participation in environmental protection.