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Summer 2014 - Seminar: Comparative Environmental Law & Policy

Benjamin, Antonio H

Course ID: S397S  Unique # 81167  Credit Hours: 3
Meeting DaysTimesLocation
   Monday 10:00 am - 12:30 pm JON 5.202
   Tuesday 10:00 am - 12:30 pm JON 5.202
   Wednesday 10:00 am - 12:30 pm JON 5.202
   Thursday 10:00 am - 12:30 pm JON 5.202
   Friday 10:00 am - 12:30 pm JON 5.202
Exam Type   Date   Time      Name Range   Room  
Registration Information
This course is restricted to upper division students only.

Visiting Professor Antonio Herman Benjamin
Summer 2014, A Three Credit Writing Seminar
Meets 10:00-12:30, July 21-31 and August 11 & 15

Summary and Introduction to the Course.  This Seminar will cover a variety of complex modern environmental issues relevant to both common and civil law jurisdictions.  Traditional Comparative Law & Policy courses start from existing national legislation and institutions.  This course, however, will take a different approach, using a problematic methodology that begins with a group of controversial environmental law & policy issues common to most countries in the world.  In this context, then, legal/policy solutions and instruments adopted by different jurisdictions are analyzed.  This approach is designed to reach two basic goals.  First, it is meant to, as much as possible, free the student from the legal/policy framework in place in her or his country, stimulating creativity in the use of law as a tool for the protection of the environment.  Second, it stresses the desirability of studying core environmental problems from a global perspective, irrespective of established national legal orders or traditional normative instruments.

Objectives.  The seminar intends to give the student basic knowledge on some of the most important Environmental Law & Policy issues of the world, enabling her to analyze and understand the different forms of environmental regulation and legal solutions adopted in various countries and legal systems.
The purpose of the seminar is not to train the student on international environmental law or on national environmental law from specific countries, but rather to provide the means to identify the major legal/policy environmental problems in any jurisdiction and come up with reasonable solutions which could be applied worldwide.
Students who plan to work for major law firms with international clients, multilateral organizations, multinational corporations and international NGOs will benefit the most from the topics covered.  The seminar will also provide those who intend to practice Environmental Law in the United States a better understanding of the rationales for the national solutions and mechanisms adopted to face environmental problems.
The seminar is divided into four (not necessarily equal) parts:  (1) foundations of Comparative Environmental Law & Policy, (2) constitutional protection of the environment and property rights, (3) legal & policy dimensions of sustainable development, and (4) environmental enforcement.
Part 1 is a general introduction to the course in which the main characteristics, regulatory approaches, objectives, principles and tools of Environmental Law & Policy are discussed from a comparative and international perspective.
Part 2 mainly asks the question whether we need a constitutional clause in order to adequately protect the environment.  The examples of some U.S.  States, the European Union Treaty, and the cases of countries like Germany, Mexico, Spain, Portugal, Norway, Brazil, Russia, Colombia and South Africa will be covered.  It also discusses the relationship between property rights and the protection of the environment, from both an international and domestic perspective, benefiting from the current debate and judicial experience in the U.S.  and Europe.  It will survey issues such as a) the concept of property rights in the environmental protection age; b) the just compensation doctrine; c) regulatory takings; d) the German concept of "social obligation" inherent in ownership; e) the notion of "ecological function" of property; and, f) the international implications of the American "wise use" movement.
Part 3 will study the legal concept of sustainability and the role of and challenges to law and policy in securing sustainable development.  It will cover recent developments in that area, stressing the analysis of the intergenerational equity concept, as well as the precautionary, the polluter-pays (civil liability for natural resources damage) and the user-pays principles.
Part 4 intends to examine, from a comparative perspective, the challenging global problem of environmental compliance and enforcement.  Environmental citizen and class actions will be reviewed, as well as the role of criminal sanctions, the judiciary and non-governmental organizations.

Methodology.  The Seminar will use five types of learning tools:
a) legal and non-legal texts
b) video conference discussions
c) lectures by experts from outside the Law School
d) short oral presentations by students
e) research paper

Reading materials.  There is no single book that covers the subject matter in full detail.  The Seminar will use reading materials from different authors, most of them Americans.  The texts written by foreign authors will be in English.

Video conferences.  If time allows, there will be one or two video conferences among the students and the author of one of the articles or chapters of books previously assigned.  In past years scholars from the U.S., U.K., Australia, Austria, France, Italy, Belgium, New Zealand, Canada, Brazil and Germany have joined the discussions.

Lectures by outside experts.  Finally, again if time allows, there will be at least one opportunity in which outside experts will visit the Law School and exchange their views with the students on a specific issue of the seminar program.

Oral Presentations to Class.  Each student must make a presentation of her/his paper, during which she will lead a class discussion on her topic for approximately 30 minutes.  Students will also be graded on their ability and willingness to provide constructive comments on others’ research and presentations.
In addition, students will be required to make short 10-15 minute oral presentations of assigned texts.  The use of hand-outs and PowerPoint is encouraged.

Research Paper.  Each student will be expected to research and write a paper that represents original thinking on a topic related to the themes discussed in the course.  For law students, the paper should be 30-40 double-spaced typewritten pages, including footnotes, in the aggregate.  Students should choose their paper topics in consultation with the class instructor.  Since the seminar is cross-listed, students from other schools should comply with the specific paper requirements of their home institution, which might be lower than 30-40 pages. 
Interim drafts will not be graded; however, failure to meet deadlines in timely fashion without the instructor's prior permission will affect the overall assessment.  A copy of the second draft of each student's paper will be circulated to the group before oral presentations.
The final version of the paper must be submitted no later than August 25 and should reflect relevant commentary received during the presentation.

Grading.  There are six components to the final grade:
a) final paper:  40%
b) paper presentation:  15%
c) paper criticism:  10%
d) short presentations:  15%
e) class participation:  10%
f) class attendance:  10%

The paper will be graded on four criteria (in order of decreasing importance):  a) critical thinking; b) quantity and quality of research; c) organization; and d) overall impression.

Prerequisites.  There are no prerequisites.  Students are not expected to have taken environmental law, environmental policy, international law or comparative law; however, previous knowledge in those areas would be useful.  Although the focus of the seminar is on the legal and policy aspects of environmental protection, students from other departments are most welcome.


Office:  TBA
Phone Number:  TBA
Office Hours:  3:00 – 3:45PM
E-Mail Address: and

Faculty Assistant:  TBA
Office:  TBA
Phone Number:  TBA
E-Mail Address:  TBA


July 21 (Monday)
I.  A.  Introduction:  the State of the Environment
B.  Comparative Law:  Concepts and Functions
C.  Characteristics of Environmental Law & Policy
D.  Selection of paper topics

July 22 (Tuesday)
II.  A.  Objectives of Environmental Law & Policy
B.  Principles of Environmental Law & Policy

July 23 (Wednesday)
III.  Individual discussion with students on paper abstracts and outlines

July 25 (Friday)
IV.  A.  Tools of Environmental Law & Policy
B.  International Instruments Shaping National Legislations:  the 1972 Stockholm and 1992 Rio Declarations
C.  Discussion in class of papers’ detailed abstracts and outlines

July 28 (Monday)
V.  A.  Constitutional Right to a Clean and Safe Environment (Analysis of Selected Constitutions)
B.  First Draft of Paper Due (8 page minimum); the second draft (20 page minimum) is due on Monday August 4

July 29 (Tuesday)
VI.  Property Rights and the Environment

July 30 (Wednesday)
VII.  Collective Access to Justice

July 31 (Thursday)
VIII.  Crimes against the Environment

August 11 (Monday)
IX.  Individual discussion of papers’ 2nd Draft (by video conference)

August 15 (Friday)
X.  Paper Presentations

August 25 (Monday):  Final Paper Due


A.  Foundations of Environmental Law & Policy
1. Ethical foundations of Environmental Law & Policy
2. Historical development of Environmental Law & Policy
3. Economic foundations of Environmental Law & Policy
4. Constitutional protection of the environment
5. Environmental law and private property
6. Principles of Environmental Law & Policy
a) Precautionary Principle
b) Principle of Prevention
c) Polluter Pays Principle
d) User Pays Principle
e) Principle of Correction at Source
f) Principle of Non-Regression
g) Principle of Resilience
h) Intergenerational Equity

B.  Environmental Law & Policy Instruments
7. Permitting
8. Environmental Impact Assessment
9. Civil liability for environmental damage
10. Crimes against the environment
11. Administrative sanctions
12. Economic and market-based instruments
13. Environmental auditing
14. Citizen suits and class actions

C.  The Regulation of Activities
15. Environmental Law & Policy and mining
16. Environmental Law & Policy and agriculture and food production
17. Environmental Law & Policy and energy regulation
18. Environmental Law & Policy and national security
19. Environmental Law & Policy and financial institutions
20. Water and Environmental Law & Policy

D.  Comparative Environmental Law & Policy Systems
21. The U.S.  and Latin America (a comparison with one or two Latin American countries)
22. The U.S.  and Canada
23. The U.S.  and the European Union
24. The U.S.  and the UK
25. The U.S.  and South Africa
26. The U.S.  and Kenya
27. The U.S.  and Australia
28. The U.S.  and New Zealand

E.  Biodiversity issues
29. Evolution of Biodiversity Law & Policy
30. The protection of endangered species
31. Comparative Wildlife Law & Policy
32. The legal protection of wetlands
33. Tourism and biodiversity
34. Oil & biodiversity
35. Legal regimes for payment of ecosystem services
36. Legal regimes for access and benefit-sharing of genetic resources
37. Biodiversity and Climate Change Law & Policy

F.  Environmental Law & Policy and Human Health
37.  Legal regimes for regulating air pollution
38.  Water pollution
39.  Regulation of toxic substances, hazardous materials, and waste

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