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Environmental personality rights in the United States

2018-11-26 来源: 51due教员组 类别: 更多范文

下面为大家整理一篇优秀的assignment代写范文- Environmental personality rights in the United States,供大家参考学习,这篇论文讨论了美国的环境人格权。美国很早就在判例中确认了环境人格的利益,颇具美国特色的公共信托理论、肇始于美国的环境正义运动也为环境人格权提供了理论依托和价值基础。美国作为英美法系的典型代表国家,其法律思维与别国截然不同,其更为关注法律的实用性。在美国的司法判例中,环境人格权已经得到了保护。

Environmental personality right,美国环境人格权,assignment代写,paper代写,北美作业代写

The term "environmental personality right" was first put forward by Chinese scholars. As a sub-right system of environmental right, it is one of the concrete ways of the privatization of environmental right, and its development degree is subject to the theory of environmental right. The research on the theory of environmental rights started late in China in the 1980s. Although there are many researchers, there are still many different opinions. Environmental right still stops at the level of natural right in our country. It is still a moral right in our country. This is closely related to the thinking mode of the concept jurisprudence of the continental law system. As a typical representative country of Anglo-American law system, the legal thinking of the United States is quite different from that of China, and it pays more attention to the practicality of law. As the main exporter of environmental rights theory, the legislation and judicial practice of American environmental rights theory have important reference significance for China. To explore the historical source of environmental personality rights in the United States and pay attention to its legal recognition and protection of environmental personality interests in the initial stage of environmental rights research in the United States is of great value to the research of environmental personality rights in China which is still in the initial stage. It is worth mentioning that the word "environmental right" is used in many places instead of "environmental personality right". What needs to be clear here is that the environmental personality right itself is an important content of environmental rights. In some cases, the protection of environmental rights implies the recognition and protection of environmental personality rights.

Case confirmation of environmental personality interest. Sierra club v. Morton. The main reason why this case can become a classic case of environmental litigation in the United States lies in the debate on the plaintiff's litigation qualification. However, the debate on this issue involves the debate on the interests of environmental personality, so here we propose to interpret this case from the perspective of environmental personality right. Founded in 1892, the sierra club has a long standing reputation in the United States. It is the oldest and largest environmental ngo in the United States. The beautiful mineral-gold canyon is one of California's unexplored wilderness areas. It is part of the national forest of the United States. Therefore, it is basically used for recreational purposes, maintaining the mysterious nature of the original wilderness. The U.S. forest service, which manages the gold canyon, is trying to turn it into a casino where it can build highways and ski resorts. The sierra club wants to maintain the status quo of the gold canyon and believes that changing its use will lead to aesthetic and ecological changes in the area. It also claims that the development of the gold canyon will have adverse effects on park scenery, natural and historical sites, wildlife and even destroy them. The case first focused on the eligibility of the sierra club to Sue. As we all know, according to the traditional legal concepts and principles, the subject who can initiate a lawsuit should be the person who has been harmed. And mine gold canyon caused by damage to the environment of the spirit of interests, not harm the interests everyone, only those who really take the mine valley and sequoia national park, like people in their life, entertainment, can truly feel the building roads and ski resort, there will make the mine valley and sequoia national park's aesthetic and recreational value loss. But in any case, members of the sierra club have no evidence that they are among them and are affected by development projects. As a result, despite repeated appeals to the Supreme Court, the sierra club lost. However, this case recognizes the ecological value, aesthetic value and entertainment value of environmental resources as a legal interest, which should be protected by law.

Therefore, in the opinion of the United States Supreme Court, the United States Supreme Court has made a new explanation on the scope of "damage to facts". The damage of economic interests is no longer the only content of damage, and the threat of non-economic value of environmental spirit, such as the aesthetics of environmental resources and recreation, is also "actual damage". Think aesthetic and environmental and economic interests in the life, is an integral part of our life, although the environment interests enjoyed by many people as a public interests, and not like a private property by a minority group, but not so don't think it is bound by the law, which should be ruled out to the judicial protection. Environmental aesthetics and environmental interests here are environmental personality interests. Douglas believed that those who is closely related to the mine valley, such as often in mine gold canyon frequented such as hiking, fishing, hunting, camping, also including those just appreciate the natural beauty of travelers, are and will be natural objects is closely related, they are qualified to be the legal representative of natural objects. Both are qualified to file lawsuits in place of natural objects and require legal protection through judicial proceedings. Although justice Douglas' opinion is radical, his concern for natural objects and discussion on the interests of environmental personality are worth paying attention to. In fact, it affirms the existence and necessity of the interests of environmental personality and is of great significance to the legal protection of the interests of environmental personality.

In the case of sierra club v. Morton, the Supreme Court of the United States recognized the interest of environmental personality laterally. Therefore, although sierra club lost the lawsuit, the affirmation of the interest of environmental personality in the case was of great significance. The most typical case is friends of the earth v. Randolph environmental services in 2000. The case also went to the U.S. Supreme Court. This time, the Supreme Court of the United States ruled in favor of the plaintiff, and confirmed the interest of environmental personality by positive precedents. The case began in 1992, when friends of the earth and other environmental groups accused the company of polluting the local environment by illegally emitting mercury. Friends of the earth, to learn from the experience of the sierra club v. Morton's case, in order to ensure the qualified to prosecute, friends of the earth made full preparation, provides its members legal oath, to prove that LAN environment services company did violate restrictions on mercury emissions, caused the pollution, and they dare not for fear of mercury contaminated river where fishing, camping, swimming and so on, so its environmental personality interest has been damaged, indeed. In its ruling, the Supreme Court held that the plaintiffs' alleged environmental, recreational and aesthetic interests were indeed affected by the illegal discharge of mercury by Randolph. This is a positive response to the interests of environmental personality in the case, affirmed the interests of environmental personality, and gave legal protection.

The above two cases can be said to be the classic cases of environmental personality protection in the United States. In fact, the United States has confirmed the right of environmental personality from the perspective of judicial practice. In the case, the judge extended the meaning of "damage" correspondingly, from the specific damage that originally only included material interests to the damage that included the abstract meaning of environmental aesthetics and entertainment value, fully reflecting the dynamic characteristics of American law. The Supreme Court of the United States even pointed out that the plaintiff's damage in this respect does not require specific proof of actual damage, as long as the plaintiff proves that his aesthetic and entertainment rights have been infringed by the defendant's behavior is enough. And the aesthetic and recreational rights enjoyed by the plaintiff herein actually refer to his environmental personality rights. It can be seen that the environmental personality right has been protected in the judicial cases of the United States. Statutory confirmation of environmental personality right. Although the United States is the birthplace of the theory of environmental rights, and it has confirmed environmental rights or environmental personality interests in judicial cases, it has not recognized environmental rights in the federal constitution of the United States. Some people have proposed constitutional amendments to environmental rights, but they have not been adopted. However, although the federal constitution of the United States refuses to recognize environmental rights, the constitutions of various states, on the contrary, explicitly recognize the existence of laws on environmental rights through constitutional amendments. For example, Hawaii, Pennsylvania, Illinois, Massachusetts and Montana all recognize environmental rights in the constitution. Although it exists as a right, everyone should also undertake corresponding obligations. From this perspective, environmental rights exist as a natural human right. Although the United States does not recognize environmental rights in the federal constitution, it does recognize the existence of environmental rights in the basic law of the environment. Therefore, the national environmental policy act of 1969 stipulates that everyone has the right to enjoy a healthy environment, and at the same time, every citizen has the obligation to protect and improve the environment. The legal recognition of environmental rights in the United States is actually the legislative confirmation of environmental personality rights.

The theory of public trust can be traced back to Roman law, which is recorded in the law ladder. Britain was the first country to adopt the common trust theory, but its scope of application was limited to navigation and fishing. Later, this theory was transplanted to the United States and became an important theoretical basis and principle of American environmental law. In the United States this theory is also established by precedent. In 1892, the Supreme Court of the United States confirmed the principle of public trust in Illinois central railroad v. Illinois, but the scope of application at that time was relatively narrow. However, in 1960, the United States launched a broad discussion on the theory and legislative basis of legal protection of citizens' environmental rights and interests. Based on the unique principle of public trust in Anglo-American law system, professor sachs made appropriate expansion and formed the "environmental public trust theory". He believed that air, water, sunshine and other indispensable environmental factors for human survival, due to environmental pollution and damage, when these environmental factors threaten human production and life, are no longer freely acquired property, but should become the object of ownership. But because of its importance, it cannot be regulated by private law ownership. In fact, environmental factors should become public property. Theoretically speaking, no one has the right to arbitrarily possess and control, let alone to do any damage. Due to the lack of effective management of these properties by private individuals, and the inherent efficiency of such management by the state, these public properties are entrusted to the state for management, so as to realize the optimal allocation of these environmental public properties. In this legal relationship, the citizen is the principal and the state is the trustee. Therefore, the state, as a trustee, should properly exercise its power and not abuse it. Professor sachs's theory of environmental public trust is an extension of the traditional public trust theory and a theoretical cornerstone for the establishment of environmental personality right.

Development of environmental public trust theory. Scope of application and expansion of protection interests. In the 1970s, the theory of environmental public trust in the United States gained new development. Environmental scope contains most of the public trust of the object, such as beach, lakes, rivers, parks, wildlife, natural resources, such as atmosphere, water, and protect the interests of also being expanded, not only including birds, prevent the air and water pollution, soil and water conservation, and protection of the wetland benefit, also includes the entertainment value and other benefits of protecting the environment. In a case concerning the principle of public trust, the Supreme Court of New Jersey confirmed that the principle of public trust is not fixed and static, but should be constantly developing and changing to meet the needs of social development and public interests. Thus public rights on intertidal land were originally limited to navigation and fishing, but by the second half of the 20th century they should be expanded to include recreational USES such as swimming.

In addition to the above recognition of the principle of environmental public trust through case studies, this principle is also recognized by the enactment law. The constitution of Pennsylvania stipulates that the natural resources of Pennsylvania are the common property of contemporary and future human beings. As the trustee of these resources, the state government has the responsibility to protect and maintain these properties. Michigan's environmental protection act recognizes that citizens can Sue for environmental rights under "public trusts related to the atmosphere, water and natural resources." Maryland's state agency established the Maryland environmental trust to protect "the aesthetic, natural, healthy, welfare, scientific, and cultural qualities of the environment." It can be seen that the principle of environmental public trust, as a basic principle of environmental protection, has been confirmed by the enactment laws of many states in the United States.

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