Foreign and Comparative Environmental Law

Syllabus

 

 

 

Part I   Course Description

 

1. Introduction

This course is mainly taught to students in the PhD Program in Environmental Resources Protection Law (in English). Chinese Master and PhD students majoring in Environmental Law will also attend. The English PhD program aims to cultivate professionals with relatively comprehensive and solid environmental law knowledge for the international community. Comparative environmental law is one of the core courses of the project, and it is also one key method to realize the aim of this program. In the past four years, dozens of students from Western Europe, Russia, West Asia, Africa and other places has been recruited in this program. The students have a good foundation in law, but their educational and cultural backgrounds are different, which limits their understanding of other legal systems. Mastering the knowledge of environmental law in different countries and learning the research methods of comparative law are indispensable for expanding students' knowledge and cultivating their research ability. Through the study of comparative environmental law, it can also encourage students to have a deeper understanding of China's legal system, promote the influence of China's rule of law and culture, and promote international exchanges and cooperation. For Chinese students, studying the origin and development of environmental laws in various countries will help them to grasp the past, present and future of China’s environmental laws. Teaching in English can help students develop the ability of data collection and analysis, grasp the latest academic developments, and promote international cooperation. The comparative perspective allows students to understand more deeply and objectively the advantages of socialist ecological civilization and enhance cultural self-confidence. At the same time, learning the experience and lessons of foreign environmental governance will also help them build the ability to improve the environmental legal system and contribute to the modernization of national environmental governance system.

2. Purpose

1. Through the study, students will have a more in-depth understanding of the applicable conditions, object selection and research methodology of comparative law. The students will master the basic theories, knowledge and concepts of comparative environmental law, as well as deepen their understanding of theoretical law and other fields of law.

2. Through the study, the students will learn the basic content, main characteristics and typical regimes of environmental laws in main countries. The course will also expand their knowledge, and prepare them for the choice of topics for their doctoral dissertation. The training of methodology will enhance their ability to solve problems in environmental legislation, enforcement and judicial practice.

3. The course aims at cultivating students' interest and enthusiasm for the legal culture of various countries, especially providing them a correct perspective for understanding China's environmental legal system, and promoting exchanges and cooperation between China and their home country.

3. Approach

The teaching will combine theoretical lectures and group discussions. In addition to doctrinal approach, economical and sociological analysis will also be introduced in the teaching. The course is divided into three parts and eight chapters. For each part a lecture on thematic topics will be given, introducing the basic knowledge and structure. After the lectures, the students will be divided into groups. Based on reading materials provided to them before class and core questions raised, and students will be guided to learn by themselves. Discussions will be organized in class to stimulate students' enthusiasm and initiative. In terms of teaching methods, modern law teaching methods such as Situational Teaching, Legal Clinic, Problem-based Learning are introduced, and the latest academic research results are integrated. The examination includes an essay and daily performance in group discussions.

4. Materials

(1) Basic Bibliography

1. Farber, D., Roger Findley, Environmental Law in a Nutshell (8^th edn.), West, 2010.
2. Friedman, L., American Law: an Introduction (3^rd edn.), Oxford University Press, 2017.
3. Lees,E. & Vinuales, J., The Oxford Handbook of Comparative Environmental Law, Oxford University Press 2019.
4. Nakanishi, Y. (ed.), Contemporary Issues in Environmental Law: the EU and Japan, Springer, 2016.
5. Reimann, M & Zimmermann, R., The Oxford Handbook of Comparative Law (2^nd edn.), Oxford University Press, 2019.
6. Smits, J., Elgar Encyclopedia of Comparative Law, Edward Elgar 2006.
7. Sullivan, T. (ed.), Environmental Law Handbook (22th edn.), Bernan Press 2014.
8. Yongs, R., English, French & German Comparative Law (3^rd edn.), Routledge, 2014.

(2) Further Readings

1. Cole, D., Pollution and Property: Comparing Ownership Institutions for Environmental Protection, Cambridge University Press 2002.
2. De Sadeleer, N., Environmental Law Principles: from Political Slogans to Legal Rules (2^nd edn.), Oxford University Press 2020.
3. Ebbesson, J. & Okowa P. (eds.), Environmental Law and Justice in Context, Cambridge University Press 2009.
4. Engelbrekt,  A. & Nergelius, J., New Directions in Comparative Law, Edward Elgar, 2009.
5. Faure, M. & Partain, R., Environmental Law and Economics: Theory and Practice, Cambridge University Press 2019.
6. Fitzmaurice, M. Ong, D. & Merkouris, P., Research Handbook on International Environmental Law, Edward Elgar, 2010.
7. Gunningham, N., Grabosky, P. & Sinclair, D., Smart Regulation: Designing Environmental Policy, Clarendon Press, 1998.
8. Hinteregger, M., Environmental Liability and Ecological Damage in European Law, Cambridge University Press 2008.
9. Holder, J. & Lee, M., Environmental Protection, Law and Policy: Text and Materials (2^nd edn.), Cambridge University Press 2007.
10. Kiss, A. & Shelton, D. International Environmental Law, Martunus Nighhoff Publishers 2007.
11. Kubasek, N. & Silverman, G., Environmental Law (8^th edn.), Person 2012.
12. Langlet, D. & Mahmoudi, S., EU Environmental Law and Policy, Oxford University Press, 2016.
13. Makuch, K. & Pereira, R., Environmental and Energy Law, Wliey-Blackwell 2012.
14. McElwee, C., Environmental Law In China: Managing Risk and Ensuring Compliance, Oxford University Press, 2011.
15. Qin T., Research Handbook on Chinese Environmental Law, Edward Elgar 2015.
16. Samuel, G., An Introduction to Comparative Law Theory and Method, Hart Publishing, 2014.
17. Voigt, C (ed.), Rule of Law For Nature: New Dimensions and Ideas in Environmental Law, Cambridge University Press 2013.
18. Wilde, M.,  Civil Liability for Environmental Damage: Comparative Analysis of Law and Policy in Europe and the US (2^nd edn. ), Wolters Kluwer 2013.
19. Wurzel, R., Zito, A. & Jordan, A., Environmental Governance in Europe: A Comparative Analysis of New Environmental Policy Instruments, Edward Elgar, 2013.

 

 

 

 

 

Part II  The Contents and Approach

This course is divided into three parts: part I "General Introduction" (4 class hours), including chapter 1 " Comparative Environmental Law Overview";  Part II "Overview of Environmental Laws in Various Countries" (17 class hours), including the Chapter 2 "American Environmental Law", Chapter 3 "German Environmental Law", Chapter 4 "French Environmental Law" and Chapter 5 "Japanese Environmental Law"  ; part III "Comparative Analysis of Key Environmental Legal Regime" (11 class hours), including Chapter 6 "Comparative Analysis of Environmental Impact Assessment Systems", Chapter 7 "Comparative Analysis of Environmental Taxes", Chapter 6 Chapter 8 "Comparative Analysis of Environmental Civil Liability".

This does not only introduce the research methodology of comparative law, but also combines country studies with comparative analysis of specific regimes. It will help students to master the basic methods and principles of comparative environmental law in general, and to understand the similarities and differences between different countries.

Part I General Introduction (4 class hours in total)

Chapter 1 Overview of Comparative Law (4 class hours)

 

Objectives: understand the curriculum system of comparative environmental law; Introduce the learning methods of the course and the use of bibliography; Understand the concept and development of comparative law; Understand and master comparative analysis methods;

Schedule: 4 class hours

Contents of Teaching:

1、 Introduction to the curriculum system and learning methods of Comparative Environmental Law (1 class hour)

2、 Concept of Comparative Law (1 class hour)

3、 Research methods of comparative analysis (2 class hours)

 

Key points and difficulties of the course:

1、 Applicable conditions, limitations and application of comparative analysis method

2、 Reading methods of classical references

Teaching methods: teaching and discussion, focusing on the system, learning methods, reading methods and key points of main bibliographies of comparative environmental law, the concept and history of comparative law; The focus of the discussion is the research method of comparative analysis.

 

 

Chapter 2 Overview of Comparative Environmental Law (4 class hours)

Objectives: be familiar with the concept and system of comparative environmental law; master the methodology of comparative environmental law

Schedule: 4 class hours

Contents of Teaching:

2. The concept of comparative environmental law (1 class hour)

3. The system of comparative environmental law (1 class hour)

4. The methodology of comparative environmental law (2 class hour)

The key points and difficulties of the course:

1. Methodology of comparative law

Teaching methods: lectures and discussions. The focus of the lecture is on the concepts and history of comparative environmental law; the focus of the discussion is on the methodology of comparative analysis.

 

 

 

Part II Overview of Environmental Laws in Various Countries (8 hours in total)

Chapter 3 American Environmental Law (4 hours)

Objectives: To understand the history of American environmental law; to be familiar with the American environmental governance system, the distribution and interaction of environmental legislative and enforcement power between the federal state and the states; to be familiar with the American environmental legal system and the content of the main federal legislation; to understand the implementation framework of the US environmental law, especially the judicial framework.

Schedule: 4 class hours

Contents of teaching:

1. Allocation of powers in American environmental governance systems (1 Class hour)
2. Structure and substance of American environmental law (2 class hours)
3. Implementation framework of American environmental law (1 class hours)

The key points and difficulties of the course:

1. The division of environmental legislative and enforcement power between the federal government and states

2. The interaction between common law and statutory law under the US environmental legal system

3. The private enforcement mechanism of the U.S. Environmental Law

Teaching methods: lectures, case studies and group discussions.

Typical cases:

1．United States v Lopez. Discussion will focus on the constitutionality of American environmental law.

2．Lead Industries Association v EPA. Discussion will focus on judging the safety on the environmental air quality standards.

3．Citizens to Preserve Overton Park v Volpe. Discussion will focus on the judging whether the governmental action is arbitrary and capricious.

4．Chevron U.S.A., Inc. v Natural Resources Defense Council. Discussion will focus on the judicial review of governmental regulation.

Panel discussion topics:

1. The role of the political system and political party in the development of American environmental law. Discussion will focus on how the separation of powers promotes or hinders the promulgation and operation of federal environmental laws, and the impact of the electoral system on this process.

2. The private enforcement mechanism of the American environmental law. Discussion will focus on analyzing the importance of citizen litigation and class action in the implementation of American environmental law, and the reasons for their origin in the US and their transplantation in other legal systems.

 

 

Chapter 4 German Environmental Law (4 hours)

Objectives: To understand the basic characteristics of German environmental law; to grasp the division of federal and state environmental legislative powers; to be familiar with the impact of EU law on German environmental legislation; to understand the legislative system and main German environmental laws; to understand the implementation mechanisms of German environmental law .

Schedule: 4 class hours

Contents of teaching:

1. Allocation of powers in German environmental governance systems (1 Class hour)
2. Structure and substance of German environmental law (2 class hours)
3. Implementation framework of German environmental law (1 class hours)

The key points and difficulties of the course:

1. The interaction between EU law and German environmental law

2. German Air Pollution Prevention and Control Law and Climate Law

3. The prominent public law characteristics of German environmental law and the reason

Teaching methods: lectures and case analysis.

Typical Cases

1. ECJ, Judgment of 12 May 2011, BUND v Arnsberg, C-115/09, EU:C:2011:289（the Trianel case）：Discussion will focus on the emergence of environmental public interest litigation in German justice.

2. ECJ, Judgment of 20 February 1979, Cassis de Dijon, C-120/78, EU:C:1879:42：Discussion will focus on how international environmental law and European law affect German environmental law.

3. BVerwGE 72, 300：Discussion will focus on protective precautionary measures in litigations.

 

 

Part III Comparative Analysis of Key Environmental Legal Regimes (11 class hours in total)

 

 

Chapter 5 Comparative Analysis of Climate Litigation: Overview (4 class hours)

Objectives: understand the basic concepts of climate litigation; Understand the basic forms of climate litigation in practice; Master the legal sources of climate litigation.

Schedule: 4 class hours

Contents of Teaching:

1. Basic concepts of climate litigation (1 class hour)

2. Basic form of climate litigation: Civil and administrative litigation (1 class hour)

3. Legal source of climate litigation (1 class hour)

4. Case analysis (1 class hour)

Key points and difficulties of the course:

1. Basic patterns of climate litigation

2. Legal sources of climate litigation

3. The role of courts in climate policy

Teaching methods: lecture and group discussion. Focus on possible forms of climate litigation.

 

Chapter 6 Comparative Study of Climate Litigation: Comparison of Chinese and Dutch Laws (4 class hours)

 

Objectives: understand the basic state of climate litigation in the legislation and practice of the Netherlands and China; Understand the reasons for the differences between China and the Netherlands

Schedule: 4 class hours

Contents of teaching:

1. Overview of China's climate law (1 class hour)

2. Climate change cases in China's judicial practice (1 class hour)

3. The role of courts under EU and Dutch law in climate regulation (1 class hour)

4. Discussion on the Dutch urgenda case (1 class hour)

Key points and difficulties of the course:

1. China's legislation on climate change
2. Different climate litigation patterns in China

3.  The influence of EU law on Dutch climate litigation

Teaching methods: lecture and group discussion.

Key discussion: the case of urgenda in the Netherlands and the case of friends of nature of China v. Gansu Power Grid

 

 

 

Chapter 7 Comparative Study of Natural Resource Governance (4 class hours)

 

Objectives: understand the relevant theories about the origin and solutions of natural resources problems; Master different property rights systems of natural resources; Understand the differences and reasons of resource property rights systems in different countries.

Schedule: 4 class hours

Contents of teaching:

1. The origin of the problem of natural resources: tragedy of the Commons and tragedy against the Commons (1 class hour)

2. The role of property right system in overcoming the tragedy of Commons and anti Commons (1 class hour)

3. Differences in natural resource property rights systems in different countries (2 class hours)

Key points and difficulties of the course:

1. Various theories on the origin of natural resources

2. Differences of property right system

3.Reasons for differences in natural resource property rights systems in various countries

Teaching methods: teaching and case analysis.

 

Chapter 8 Comparative Analysis of Environmental Impact Assessment System (4 class hours)

Objectives: To understand the origin of the environmental impact assessment system in the United States and its spread around the world; to master the basic theories and functions of the environmental impact assessment system; to understand the contents and procedures of the environmental impact assessment of the United States, China and the European Union ; to compare the similarities and differences of  various countries and to grasp the development direction of the environmental impact assessment regime.

Schedule: 4 class hours

Contents of Teaching:

1. The origins and role of environmental assessment (1 class hour)
2. Elements of EIA Practice (2 class hour)
3. Convergence and Divergence (1 class hour)

The key points and difficulties of the course:

1. The role of the environmental impact assessment system in environmental regulatory instruments

2. Differences in the function of environmental impact assessment systems in different countries

3. The role of public participation in environmental impact assessment

Teaching methods: lectures and group discussion. The discussion will focus on the tendency of EIA regime of the discussed countries.