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 January 24, 2019
Environmental Laws Won't Fix Climate Change Unless We Enforce Them

 The number of environmental protection laws around the world has increased 38-fold since 1972, but a lack of sufficient enforcement has rendered many of them useless, a new United Nations report has found.

In 1972, the year of the first UN environmental agreement, only three countries had national environmental framework laws: Norway, Sweden, and the United States. By 2017, 176 nations had these laws. In addition, 150 countries enshrined environmental protection or the right to a healthy environment in their constitutions, and 164 countries had cabinet-level bodies responsible for environmental protection.

But the UN report found that few of these laws have been implemented and enforced effectively.

"It really is something that all countries share," Carl Bruch, the director of International Programs at the Environmental Law Institute and one of the authors of the report, said in a phone interview. "We do have a lot of environmental laws that are on that books that could be so much more effective if they were actually fully implemented."

The report broke down the shortcomings of environmental policies into four categories: institutions responsible for the laws, civic engagement, environmental rights, and justice for those who break the law. Not every country has a problem in each category, but every country has challenges in at least one sector that has reduced the effectiveness of its environmental laws, Bruch said.

With regards to institutions, a member state might, say, have a law, and an agency responsible for enforcing that law, but that agency doesn't actually have the authority necessary to do so. This was a barrier uncovered in some Asian countries in the mid-2000s, according to the report, when an assessment found that many nations' regulatory agencies had the responsibility of enforcing environmental laws, but "lacked clear or sufficiently comprehensive mechanisms to limit and require monitoring of pollution discharges, file criminal or civil cases, take emergency response actions (such as closing a facility), impose penalties, or order corrective measures," the report said.

Other times, the institutions have the authority but still don't act, an issue that could be remedied through greated civic engagement and the ability of citizens to hold agencies accountable. Take the ongoing lead poisoning crisis in Flint, Michigan, which is listed as one of the 35 case studies in the report. The UN report noted that local, state, and federal agencies all failed to properly enforce laws that could have caught the crisis earlier.

In contrast, Costa Rica, has doubled its forest cover to more than 50 percent, and is on track to be climate neutral by 2021---bolstered by civic engagement and access to the courts, the report notes. Costa Rica's constitution allows any individual to bring a suit to defend a constitutional right, which includes the right to "a healthy and ecologically balanced environment." A 1994 ruling also allows citizens to sue on behalf of the public good, including on environmental issues.

On the justice front, sometimes a lack of proper training and education for judges can disrupt the systems in place to enforce environmental law. In Ecuador, for example, a non-government organization sued to prevent a pine tree plantation from being erected in a native grassland ecosystem. But the judge, unaware of Ecuador's constitutional provisions that allow anybody to bring forward a suit in protection of the environment, dismissed the case and allowed the plantation to be built, the UN report noted.

"Due to the complexity and technical nature of many environmental matters, it is particularly important that judges be knowledgeable and competent regarding environmental law," the report read.

Bruch said it's time we focus on the structures around the laws to make sure they're effective. He hopes this will be the first in a series of reports so people can track the progress---or regression---that governments make in shoring up their environmental laws.

"If we have laws in place and we still see the problems, whether it's climate change or biodiversity loss, is it because the policies are not appropriate or is it because the policies aren't being implemented and enforced?" Bruch said. "There's often an instinct to 'fix the laws,' and what we really need to do is focus on implementing the laws that we already have."