Management of modern environmental problems : the place of environmental rights and administrative law

The environmental problems challenging modern society have spawned a new public administration based on the principle of rule of law. It is widely recognised that comprehensive environmental management plans are indispensable to environmental administration. Although ideally they should be framed on a global scale, it is more realistic if they are established in the Legislatures of each country. Accordingly, there is a strong case for local public entities in an administratively decentralized nation such as Japan, and the states and local municipalities in a federation, such as Australia, to establish environmental management plans of their own. The thesis holds that it is absolutely essential to express environmental management plans and their principles in legislation. It argues this case by following up its historical accounts of (i) the post-war development of petro-chemical industries in Japan, together with their associated pollution problems (using the industrial city of Yokkaichi as a case study), and (ii) the development of legal and administrative responses to pollution, with an analysis of the shortcomings of the plans and regulations put in place. The necessities to enforce environmental management plans at the regional level and to involve citizens in the planning process are discussed in the contexts of both the nature of environmental problems and the relationships between tiers of government in Japan. The other major iheme of the thesis is the contention that environmental legislation, including that authorizing environmental management plans, is best derived from a constitutional environmental right. The author undertakes comparative analysis of Japan and Australia, explaining that their constitutions show no cognisance of environmental problems at all. Cultural mores and attitudes to nature and the environment are briefly considered to assist in understanding similarities and differences between the two countries in approaching environmental problems. The author's search for a basis in which to ground an environmental right leads, in an age of internationalization and global environmental concerns, to a recognition of relevant principles in the UNESCO Convention 1972 and the Declaration of Human Environment of the United Nations 1972. The highest principle is that of a legally enforceable environmental right authorised by a bill of rights enshrined in a written constitution or by a declaration derived from an international convention. In respect of Japan, the case is developed for establishing an environmental right through the Constitution, deriving it from other rights already present in that document. In Australia, on the other hand, with a very different constitution and different relations between nation and states than hold between nation and local public entities in Japan, the prospect for a constitutional path towards an environmental right is poor. The opportunities created by international agreements have been used to • facilitate the introduction of environmental management plans, although only in respect of some special environments. In explaining this situation and arguing that other nations might well consider adopting this sort of initiative, the thesis presents a case study of political events and legal judgements associated with a historic decision to prevent construction of a hydro-electric dam in a World Heritage Area in the State of Tasmania. An environmental right should be a legal right, a guiding rule for environmental management plans, and an appropriate principle for sovereign nations. The author argues a central place in such a right for human dignity which should be directly connected with fundamental human rights. The right to life and the concept of a relationship between human life and the environment (an eco-centric stance which, as explained in the thesis, is traceable to Buddhist philosophy) are core principles in this argument. These rights can be reinforced and further advanced through a structure of administrative law, similar to that which already exists in Japan