Recuperación utilizando polímeros funcionalizados

2.2.5.1 General introduction

Above and beyond the extensive dictionary and statutory definitions discussed above, many authors have tried to define both the environment and what pollution with regards to the environment entails. In addition to the

105 _{http://www.wikipedia.org/wiki/Ecological (last accessed 11 February 2008).}

106 _{http://www.mblwhoilibrary.org/heackel/bio.html (last accessed on 12 February 2008).} 107 _{As put by Rabie MA “The need for adequate environmental law” September 1971 De} Rebus Procuratoriis 361.

108 _{See also the discussion in par 2.2.3.2 above.}

109 _{See the CERCLA definition in par 2.2.5.3 and its reference in n 122 below.} 110 _{Act 43 of 1983.}

discussion in the introduction to this chapter,112 the more extensive views of some authoritative South African authors are considered below.

2.2.5.2 Views of South African authors

According to the statement made by Henderson in his introductory note to the section dealing with cultural resources, because of the definitions of the environment provided by NEMA and the ECA, even cultural resources fall within the ambit of environmental law.113 _{Under the general international}

principle of sustainable development a nation’s natural environment as well as its’ cultural heritage have to be protected.114

Kidd concedes that it seems as if the definitions provided nationally and internationally do not bring us closer to a meaning that elucidates the exact scope of environmental law, as some are open-ended, whereas others that are more specific, are still wide.115

Bray states that ‘[a]n all-embracing concept of the environment is unacceptable as a workable basis for determining the scope and content of environmental law because it would tend to make all law environmental law’. She warns that making it too narrow would be restrictive as it could exclude some aspects of the environment that one would prefer to be included. She proposes that it suffices to say that ‘environmental law deals primarily with human beings and the environment and the legal relationship (balance or harmony) that exists, or should exist, between them’.116

112 _{Par 2.1 above.} 113 _{Henderson 2-371.}

114 _{See the discussion on The National Heritage Resources Act in par 2.2.3.12 above; see}

also Bray (2003) 123 who states that South Africa has been among the leading countries to enshrine a right to the environment in its bill of rights and to incorporate the concept of sustainable development in its Constitution as well.

115 _{Kidd 2.}

Glazewski holds the opinion that there cannot be one single obvious definition of the environment.117 He therefore does not offer his own attempt at defining the term, and only refers to the statutory definitions found in the NEMA and the ECA.118

In the words of Fuggle and Rabie ‘the term environment means various things to various people’.119 _{According to these authors the term ‘environment’ can}

be interpreted in so many ways that it needs to be qualified so as to focus attention on its particular relevance in a specific sphere. Internationally a limited approach and an extensive approach exists.

In terms of an extensive approach the term ‘environment’ can therefore be divided into the following categories, namely (a) the natural environment, that encompasses the natural world in its pure state, thus all natural resources including all the inhabitants and contents of nature such as plant and animal life, mountains, rivers, soil, natural rock formations, etc;120 _{(b) the spatial}

environment, that refers to natural areas such as regions, provinces, or countries, specific landscapes such as mountains, wetlands and forests, and the built or man-made environment, that encompasses the spatial structures erected by man; (c) the social, sociological or cultural environment within which human beings find themselves, including the political, cultural-historic and work environment; and (d) the economic environment.121

‘Environmental problems’ should then, according to Fuggle and Rabie, refer to impaired interrelationships between human beings and their physical surroundings.122 All animals, plants and other physical aspects such as man-

117 _{Glazewski 9.}

118 _{Par 2.2.3.3 and 2.2.3.4 above.} 119 _{Fuggle & Rabie 4.}

120 _{Also in par 2.2.4.2 on the term ‘nature’ and ‘natural resources’; and n 26, n 50 and n 51}

above.

121 _{See Fuggle & Rabie 84 et seq for this division; Larsson 123 acknowledges three distinct}

groupings, namely, the natural, the man-made and the human environment which includes the economic environment. The latter is not included in this study.

made structures, land, water, air and so forth are covered under ‘physical surroundings’. This approach is preferred.

One should note that irrespective of all these detailed descriptions, for the purpose of this study on the liability for causing environmental or ecological damage, contamination or destruction, and the insurability thereof, the environment has to be recognized as a relational concept regarding the interrelationship of human beings with their surroundings, and not as a concept that excludes human beings entirely from the environment.123 _In

terms of this extensive approach almost everything that in some or other way influences the life of human beings, is covered and forms part of the ‘environment’ as defined. This also complicates matters regarding the scope of environmental law, as all fields of law technically to some extent then fall under environmental law.

Three different approaches can be identified. In terms of a holistic approach, emphasis is placed on the concept of the environment as a whole, and not on its individual components. In terms of a limited approach on the other hand, the ‘environment’ consists only of nature, thus the natural environment. This excludes the anthropogenic124 _{environment consisting of the social,}

sociological or cultural, economic and spatial environment as discussed above.125 In terms of an extensive approach, the ‘environment’ appears to be the ‘human environment’, and therefore includes all relevant factors that determine human existence, such as the natural, spatial, sociological, economic, cultural-historic, built, political and work environments.

123 _{As endorsed by Fuggle & Rabie 86; see also s 4(1) of The (Australian) Commonwealth}

Environment Protection (Impact of Proposals) Act of 1974 that stipulates that ‘the environment includes all aspects of the surroundings of man, whether affecting him or in his social groupings’.

124

The Concise Oxford Dictionary 56 defines the term ‘anthropogenic’ as an adjective

meaning: ‘(chiefly in pollution) originating in human activity’.

125 _{See also Fuggle & Rabie 86; for a discussion of what the ‘natural environment’ entails, see}

2.2.5.3 Examples of descriptions from foreign jurisdictions

In addition to the English and Australian definitions quoted above,126 a few other examples may be examined. The definition of ‘natural resources’ found in the United States in CERCLA127 _{simply reads as follows: ‘land, fish, wildlife,}

biota, air, water, ground water, drinking water supplies, and other such resources ’that belong to, are managed by or under the control of a governmental authority’.128

The description for ‘environmental damage’ proposed for the regulations to be issued in accordance with the EU Environmental Liability Directive129 _includes

(a) damage to protected species, natural habitat or sites of scientific interest caused by a ‘designated activity’; (b) damage to surface water and groundwater; and (c) contamination of land by substances, preparations, organisms or micro organisms.130 _{These must result in a significant risk of}

adverse effect on human health.131 _{The description is very broad and the}

purpose is not to provide a specific statutory definition.

A compact and effective definition can be found in the New Zealand Environment Act of 1986, that the ‘environment’ includes ‘(a) ecosystems and their constituent parts; (b) all natural and physical resources; and (c) the social, economic, aesthetic and cultural conditions which affect the environment of which are affected by changes to the environment’.132 The

126 _{Par 2.1 n 4 that refers to some Australian and English statutory definitions.}

127 _{United States Comprehensive Environmental Response, Compensation and Liability Act}

of 1980 (hereinafter referred to as ‘CERCLA’).

128 _{§ 9601(16); see the comprehensive discussion of this statute in chap 7 par 7.6.2.2 below;}

see also in general Fogleman V Environmental Liabilities and Insurance in England and the United States Part A (2005) 303 for an examination of the CERCLA definition and its

application in the extensive body of case law in the US.

129 _{Directive 2004/35 CE [2004] O.J. L143/56.} 130 _{Bell S & McGillivray D}

Environmental Law 6th ed (2006) 393 are of the opinion that the

narrow scope of the description of ‘environmental damage’ under the Directive is problematic, but that it does offer the benefit of providing improved protection for the ‘unowned environment’.

131 _{Art.2(1) describes ‘environmental damage’ as including (a) damage to protected}

species;(b) water damage;(c) land damage; ‘damage’ is in general is defined as ‘a measurable adverse change in the natural resource or measurable impairment of a natural resource service which may occur directly or indirectly’.

environment can also be said to cover ‘all those elements which in their complex inter-relationships form the framework, setting and living conditions for mankind, by their very existence and by virtue of their impact’.133

Sands prefers to follow a scientific approach by dividing environmental issues into the following ‘compartments’, namely (a) atmosphere and atmospheric depositions; (b) soils and sediments; (c) water quality; (d) biology; and (e) humans, as it does not have a generally accepted usage as a term of art in international law. Recent international agreements have consistently preferred to identify the various media included in the term, rather than to provide a single general description.134