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Environment & Climate Regulation 2021 & Climate Regulation Environment Environment & Climate Regulation 2021 Contributing editors James M Auslander and Brook J Detterman © Law Business Research 2020 Publisher Tom Barnes [email protected] Subscriptions Claire Bagnall Environment & [email protected] Senior business development managers Adam Sargent Climate Regulation [email protected] Dan White [email protected] 2021 Published by Law Business Research Ltd Meridian House, 34-35 Farringdon Street London, EC4A 4HL, UK Contributing editors James M Auslander and Brook J Detterman The information provided in this publication is general and may not apply in a specific Beveridge & Diamond situation. Legal advice should always be sought before taking any legal action based on the information provided. This information is not intended to create, nor does receipt of it constitute, a lawyer– Lexology Getting The Deal Through is delighted to publish the sixth edition of Environment & client relationship. The publishers and Climate Regulation, which is available in print and online at www.lexology.com/gtdt. authors accept no responsibility for any Lexology Getting The Deal Through provides international expert analysis in key areas of acts or omissions contained herein. The law, practice and regulation for corporate counsel, cross-border legal practitioners, and company information provided was verified between directors and officers. August and September 2020. Be advised that this is a developing area. Throughout this edition, and following the unique Lexology Getting The Deal Through format, the same key questions are answered by leading practitioners in each of the jurisdictions featured. © Law Business Research Ltd 2020 Our coverage this year includes new chapters on Australia. No photocopying without a CLA licence. Lexology Getting The Deal Through titles are published annually in print. Please ensure you First published 2015 are referring to the latest edition or to the online version at www.lexology.com/gtdt. Sixth edition Every effort has been made to cover all matters of concern to readers. However, specific ISBN 978-1-83862-334-0 legal advice should always be sought from experienced local advisers. Lexology Getting The Deal Through gratefully acknowledges the efforts of all the contribu- Printed and distributed by tors to this volume, who were chosen for their recognised expertise. We also extend special Encompass Print Solutions thanks to the contributing editors, James M Auslander and Brook J Detterman of Beveridge & Tel: 0844 2480 112 Diamond, for their assistance with this volume. London September 2020 Reproduced with permission from Law Business Research Ltd This article was first published in September 2020 For further information please contact [email protected] www.lexology.com/gtdt 1 © Law Business Research 2020 Contents Introduction 5 James M Auslander and Brook J Detterman Beveridge & Diamond ENVIRONMENT Australia 6 Mexico 47 William Oxby Mariana Herrero, Carlos A Escoto, Lucía Manzo Flores, Oxby Legal Erika J Alarcón García and Lourdes Lozano Galicia Abogados SC Belgium 13 Bernard Deltour, Valérie Vandegaart, Zoé Thiéry and Portugal 56 Claire Thollembeck João Louro e Costa and Gonçalo Andrade e Sousa Industrious Law Uría Menéndez China 20 South Korea 65 Shen Jinzhong Tong Keun Seol, Sangmin Kim and Jay Lee Winners Law Firm Lee & Ko Dominican Republic 25 Spain 72 Fabio J Guzmán Saladín and Giselle Pérez-Reyes Carlos de Miguel and Jesús Andrés Sedano Lorenzo Guzmán Ariza Uría Menéndez Germany 32 United Kingdom 79 Bettina Enderle and Julia Neutzner Tallat Hussain and Sarah Voulaz Enderle Environmental Law White & Case LLP Malta 40 United States 89 Ron Galea Cavallazzi and Rya Gatt James M Auslander, Andrew C Silton, Ryan J Carra and Camilleri Preziosi Nicole B Weinstein Beveridge & Diamond PC 2 Environment & Climate Regulation 2021 © Law Business Research 2020 Contents CLIMATE REGULATION Australia 97 Mexico 128 William Oxby Mariana Herrero, Carlos A Escoto, Lucía Manzo Flores, Oxby Legal Erika J Alarcón García, Lourdes Lozano and Luis Rosendo Reneda Galicia Abogados SC China 103 Shen Jinzhong South Korea 137 Winners Law Firm Tong Keun Seol, Sangmin Kim and Jay Lee Lee & Ko Dominican Republic 108 Fabio J Guzmán Saladín and Giselle Pérez-Reyes Spain 142 Guzmán Ariza Carlos de Miguel and Jesús Andrés Sedano Lorenzo Uría Menéndez Germany 113 Bettina Enderle and Victoria Müller-Gschlößl United Kingdom 148 Enderle Environmental Law Tallat Hussain and Sarah Voulaz White & Case LLP Malta 122 Ron Galea Cavallazzi and Rya Gatt United States 158 Camilleri Preziosi Brook J Detterman, Stacey J Halliday, Casey T Clausen, Jacob P Duginski and Aron H Schnur Beveridge & Diamond PC www.lexology.com/gtdt 3 © Law Business Research 2020 Introduction James M Auslander and Brook J Detterman Beveridge & Diamond It is an especially eventful time for environmental law, on an inter- Beveridge & Diamond is pleased to lead the preparation of the national scale, and we anticipate substantially more activity on the Lexology Getting The Deal Through: Environment & Climate Regulation horizon. The global community continues to grapple with widespread chapters at this exciting time. As the largest dedicated environmental issues such as climate change and adaptation, sustainability and law firm in the United States, B&D is a US and global leader on all supply chains, waste and circular economy considerations, infrastruc- the issues discussed in these chapters. B&D is also honoured by the ture development, oceans and species protection, and management opportunity to work with the esteemed contributing firms outside the of plastics and chemicals such as PFAS. At the same time, individual United States, and appreciates their authored additions to this valu- countries are witnessing changes to their domestic regulatory regimes able resource. and significant court decisions. For example, while the United States in We hope you find this publication helpful, and we invite you to recent years has seen an overall shift towards deregulation by agen- reach out to the contributing editors or any of the authors for addi- cies, there is significant regulatory activity and litigation in play, which tional insights. we see continuing regardless of the outcome of the November 2020 US presidential election. Globally, the covid-19 pandemic has only exacer- bated existing challenges and uncertainty. www.lexology.com/gtdt 5 © Law Business Research 2020 Australia William Oxby Oxby Legal LEGISLATION Jurisdiction Principal environment protection legislation Environment Protection and Biodiversity Cth Main environmental regulations Conservation Act 1999 (Cth) ENVIRONMENT 1 What are the main statutes and regulations relating to the NSW Protection of the Environment Operations Act 1997 (NSW) environment? Environment Protection Act 1970 (Vic) Vic Environment Protection Act 2017 (Vic) Australia is a federation of six states with two mainland territories. They Qld Environmental Protection Act 1994 (Qld) are, in no order, New South Wales (NSW), Victoria, Queensland, South SA Environmental Protection Act 1993 (SA) Australia, Western Australia, Tasmania, the Australian Capital Territory WA Environmental Protection Act 1986 (WA) and the Northern Territory. Environmental Management and Tas The Australian Constitution establishes Australia’s federation and Pollution Control Act 1994 (Tas) divides the power to make laws between the Commonwealth and the NT Environment Protection Act 2019 (NT) states. Each level has a role in environmental regulation. This means ACT Environment Protection Act 1997 (ACT) that for a single project or development, a proponent may have to seek approvals from all three levels of government: the Commonwealth government department, the state authority and the relevant local Integrated pollution prevention and control government. 2 Is there a system of integrated control of pollution? The Constitution does not contain an express power permitting the Commonwealth Parliament to make laws with respect to envi- Each state and territory has an integrated system that regulates and ronment protection. Under the division of power, it is the states that controls pollution as a form of environmental impact, often both at a have the primary responsibility for making these laws. Under section state and at a local government level. In general, pollution is not regu- 109 of the Constitution, if any inconsistency arises between a law of lated directly at a Commonwealth level, but is regulated indirectly the Commonwealth and a law of a state, the law of the Commonwealth through national coordination on particular matters. For example, the prevails, and the state law is invalid to the extent of the inconsistency. setting of national guidelines and standards is a matter coordinated The Commonwealth’s power to make laws with respect to the envi- nationally, as is the regulation of pollution that affects matters of ronment is restricted to matters of national significance. This restriction national environmental significance. is reflected in the structure and ambit of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act), the primary Soil pollution environment protection legislation. The Minister for the Environment 3 What are the main characteristics of the rules applicable to has no express power to intervene in decisions of state or local govern- soil pollution? ments, nor
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