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Environment & Climate Change Law 2019 ICLG The International Comparative Legal Guide to: Environment & Climate Change Law 2019 16th Edition A practical cross-border insight into environment and climate change law Published by Global Legal Group, with contributions from: Ambientalex - Studio Legale Associato LAVÍN Abogados & Consultores Atuguba & Associates Linklaters LLP Bär & Karrer Ltd. M.V. Kini Blake, Cassels & Graydon LLP Machado Meyer Advogados Borenius Attorneys Ltd Macías Gómez & Asociados Abogados S.A.S. Bowmans Maddocks Bryan Cave Leighton Paisner (Russia) LLP Noerr LLP Daud Silalahi & Lawencon Associates SIRIUS advokater David Desforges, Avocat à la Cour Snell & Wilmer L.L.P. Del Pozo & De la Cuadra United Kingdom Environmental Law Association Freshfields Bruckhaus Deringer LLP (UKELA) Gaastra attorneys at law URBAN FALATH GAŠPEREC BOŠANSKÝ Guyer & Regules Wistrand Law Firm Kanagawa International Law Office Katende, Ssempebwa & Co. Advocates LAER Abogados, S.C. The International Comparative Legal Guide to: Environment & Climate Change Law 2019 General Chapters: 1 Future Horizons: The Next Generation of UK Environmental Law – Simon Tilling, United Kingdom Environmental Law Association (UKELA) 1 2 The Courts as Guardians of the Environment – New Developments in Access to Justice and Environmental Litigation – Jerzy Jendrośka & Moritz Reese, European Environmental Law Forum (EELF) 5 Contributing Editor Jonathan Isted, Freshfields 3 The Parent Trap: When is a Parent Company Liable for Environmental Harm Caused by a Bruckhaus Deringer LLP Foreign-Registered Subsidiary? – Jonathan Isted & Ian Jones, Freshfields Bruckhaus Deringer LLP 11 Sales Director 4 Overview of Trends in Environmental and Climate Change Law in Sub-Saharan Africa – Florjan Osmani Mandy Sherwin & Michael Vermaak, Bowmans 14 Account Director Oliver Smith Country Question and Answer Chapters: Sales Support Manager 5 Australia Maddocks: Michael Winram & Patrick Ibbotson 20 Toni Hayward Editor 6 Belgium Linklaters LLP: Lieve Swartenbroux & Melissa Verplancke 29 Nicholas Catlin 7 Brazil Machado Meyer Advogados: Roberta Danelon Leonhardt & Daniela Stump 39 Senior Editors Caroline Collingwood 8 Canada Blake, Cassels & Graydon LLP: Jonathan W. Kahn & Anne-Catherine Boucher 44 Rachel Williams 9 Chile LAVÍN Abogados & Consultores: Julio Lavín Valdés & CEO Dror Levy Andrés Del Favero Braun 50 Group Consulting Editor 10 Colombia Macías Gómez & Asociados Abogados S.A.S.: Luis Fernando Macías Gómez 57 Alan Falach 11 Denmark SIRIUS advokater: Søren Stenderup Jensen & Aleksander Pilgaard 65 Publisher Rory Smith 12 England & Wales Freshfields Bruckhaus Deringer LLP: John Blain & Rachel Duffy 70 Published by 13 Finland Borenius Attorneys Ltd: Casper Herler & Henna Lusenius 89 Global Legal Group Ltd. 59 Tanner Street 14 France David Desforges, Avocat à la Cour 95 London SE1 3PL, UK Tel: +44 20 7367 0720 15 Germany Noerr LLP: Uwe M. Erling & Dr. Tim Uschkereit 106 Fax: +44 20 7407 5255 Email: [email protected] 16 Ghana Atuguba & Associates: Prof. Raymond A. Atuguba & Courage Asabagna 112 URL: www.glgroup.co.uk GLG Cover Design 17 India M.V. Kini: Els Reynaers & Tavinder Sidhu 118 F&F Studio Design 18 Indonesia Daud Silalahi & Lawencon Associates: Kristianto P. H. Silalahi & GLG Cover Image Source Maurice J. R. Silalahi 126 iStockphoto 19 Italy Ambientalex - Studio Legale Associato: David Röttgen & Andrea Farì 132 Printed by Ashford Colour Press Ltd 20 Japan Kanagawa International Law Office: Hajime Kanagawa & Yoshiko Nakayama 139 February 2019 21 Mexico LAER Abogados, S.C.: Luis Alberto Esparza Romero & David Huerta Ruiz 148 Copyright © 2019 Global Legal Group Ltd. 22 Netherlands Gaastra attorneys at law: André H. Gaastra 155 All rights reserved No photocopying 23 Russia Bryan Cave Leighton Paisner (Russia) LLP: Vitaly Mozharowski & Tatiana Khovanskaya 162 ISBN 978-1-912509-55-3 ISSN 2045-9661 24 Slovakia URBAN FALATH GAŠPEREC BOŠANSKÝ: Marián Bošanský & Ján Falath 169 Strategic Partners 25 Spain Del Pozo & De la Cuadra: Covadonga del Pozo 176 26 Sweden Wistrand Law Firm: Rudolf Laurin 183 27 Switzerland Bär & Karrer Ltd.: Prof. Dr. Markus Schott 189 28 Uganda Katende, Ssempebwa & Co. Advocates: Fred Businge Kiiza & Edwin Buluma Wabwire 196 29 Uruguay Guyer & Regules: Anabela Aldaz Peraza & Betania Silvera Perdomo 203 30 USA Snell & Wilmer L.L.P.: Denise A. Dragoo 210 Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720 Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. WWW.ICLG.COM EDITORIAL Welcome to the sixteenth edition of The International Comparative Legal Guide to: Environment & Climate Change Law. This guide provides corporate counsel and international practitioners with a comprehensive worldwide legal analysis of environment and climate change laws and regulations. It is divided into two main sections: Four general chapters, which explore topical issues affecting this area of law, particularly from a multi-jurisdictional perspective. Country question and answer chapters. These provide a broad overview of common issues in environment and climate change laws and regulations in 26 jurisdictions. All chapters are written by leading environmental lawyers and industry specialists, and we are extremely grateful for their excellent contributions. Special thanks are reserved for the contributing editor Jonathan Isted of Freshfields Bruckhaus Deringer LLP for his invaluable assistance. Global Legal Group hopes that you find this guide practical and interesting. The International Comparative Legal Guide series is also available online at www.iclg.com. Alan Falach LL.M. Group Consulting Editor Global Legal Group [email protected] Chapter 1 Future Horizons: The Next Generation of UK Environmental Law United Kingdom Environmental Law Association (UKELA) Simon Tilling Introduction named after the global hit series from the BBC’s excellent natural history department, which elevated marine plastic waste to a level where politicians were scrambling to be the first to announce tough It is a privilege to author this introductory chapter to The International action on single-use plastics. With it came a reassessment of our Comparative Legal Guide to: Environment & Climate Change Law disposable society and questions over what happens to our society’s 2019, on behalf of the UK Environmental Law Association, known to waste: the era of ‘throw and forget’ is coming to an end. its members and friends as UKELA. It is also timely. In 2018 UKELA celebrated its 30th birthday. Of course, as with any big These issues and public concerns have been used to further the Brexit anniversaries, we took the opportunity to look back on all that the first agenda. For example, free from the EU’s common agricultural generation of UK environmental lawyers had achieved, from the policy, the £3 billion in subsidies that go to support UK agriculture UK’s ground-breaking Environmental Protection Act 1990 onwards. could be used for environmental benefits, or in the words of Michael But more importantly, we have been looking forward, towards the Gove MP, the Secretary of State for Environment, Food and Rural challenges ahead for the next generation of environmental lawyers, Affairs (DEFRA), we can adopt a policy of ‘public money for public and indeed of UK environmental law itself. In this chapter I share goods’, using a natural capital approach. some perspectives gained from the vibrant debates and discussions Of course, there are others who argue Brexit provides an opportunity that have taken place this year, within UKELA and indeed between to row back on the ‘green tape’ from Brussels, and gives us more UKELA and others, including the UK Government. I do not claim in freedom to drive economic growth without what some see as this article to speak on behalf of UKELA: UKELA is far too broad a unnecessary regulation. Certainly, regardless of one’s perspective, it church to have ‘a point of view’, and that is one of its great strengths. is possible to achieve the same objectives and high environmental No other organisation brings together the full spectrum of voices in standards of EU environmental law through different, potentially environmental law: regulators, campaigners, solicitors, barristers, more ‘British’ methods. For some, though, there is concern that the consultants, academics, senior members of the judiciary, students and drive for international competitiveness and the willingness to sign the voices of tomorrow, and those from other professions who are free trade agreements will be to the detriment of environmental simply concerned to ensure the preservation and development of good protection, with environmental laws sacrificed as unduly restrictive law for the benefit of the environment. When we make our non-tariff barriers. The EU’s flagship chemicals regulation, the interventions into public debate, we have the ear of Government and REACH Regulation, is often-cited as anti-free trade, although after a Parliament, and our reputation as an impartial, objective voice on decade of significant investment, many in the chemicals
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