•Accumulation of PTEs In Agricultural
Soils: A Case Study Showing The Inability
of The Current Legal Order And
Legislation to Address Ecosystem
Services
•T. Ginige & Dr. I.D. Green
•Working Paper
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Introduction
• Primary Ecosystems Services
provided by Agroecosystems.
• Ecosystems processes within the
soil.
soil
g
• Soil microorganisms.
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Soils And Potentially Toxic
Elements
• Threat to soil health due to
accumulation of p
potentially
y toxic
elements –i.e. heavy metals within
plough layer
layer.
• Limits set for Zinc and Copper
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3
The Problem With Organic
Fertilisers
• Organic by-products with sufficient
nutrient content can be used as
organic fertilisers, but these materials
also
l contain
t i PTE
PTEs.
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Copper And Zinc
Concentrations In UK
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5
Time taken (yrs) for organic fertiliser applications to
raise an average UK rural soil to the Cu limit.
Mean conc. fertiliser
High conc. fertiliser
180 kg N ha-1
250 kg N ha-1
180 kg N ha-1
250 kg N ha-1
Sewage sludge
153
110
115
83
Diary slurry
1527
1100
270
195
Dairy manure
1261
908
847
610
Pig slurry
546
394
238
171
Pi manure
Pig
147
106
71
51
Layer manure
1619
1167
1403
1011
Broiler manure
1018
733
569
410
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Time taken (yrs) for organic fertiliser applications to raise
an average UK rural soil to the UK code of practice limit for
Zn.
Mean conc. fertiliser
High conc. fertiliser
180 kg N ha-1
250 kg N ha-1
180 kg N ha-1
250 kg N ha-1
Sewage sludge
112
81
83
60
Diary slurry
473
340
136
98
Dairy manure
321
231
206
149
Pig slurry
346
250
80
57
Pig manure
133
96
80
58
Layer manure
237
171
172
124
Broiler manure
271
195
216
156
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Legal controls on Sewage
Sludge
• Council Directive 86/278/EEC of 12
June 1986 on the protection of the
environment and in particular of
environment,
the soil, when sewage sludge is
used
d in
i agriculture
i lt
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Legal controls on PTE in
Agroecosystem
• Directive 2002/32/EC of the European Parliament and of the
Council of 7 May 2002 on undesirable substances in animal
feed (OJ L 140,
140 30
30.5.2002,
5 2002 p
p. 10–22)
10 22),
• Commission Regulation (EC) No 1881/2006 of 19 December
2006 setting
g maximum levels for certain contaminants in
foodstuffs (OJ L 364, 20.12.2006, p. 5)
• Inorganic
g
fertilisers, Regulation
g
((EC)) No 2003/2003 of the
European Parliament and of the Council of 13 October 2003
relating to fertilisers (OJ L 304, 21.11.2003, p. 1–194) does
not provide for heavy metal limits
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Inability Of The Current Legal Order To
Address Ecosystem Services
• E
Ecosystems
t
as the
th word
d suggests
t are systems
t
instead of goods, services, buyers and sellers, the
y
are plants,
p
, animals,,
elements of ecosystems
minerals, water, air, chemicals, nutrients etc
• There are not property rights attached to ES and
absence renders them in many applications as
public good resources and subject to under –
provision and over depletion in the absence of
some moderating influence
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10
Inability Of The Current Legal Order To
Address Ecosystem Services
• Modern environmental laws are extensive
and wide ranging but are aimed at the
wrong targets.
• They
y govern
g
subjects
j
like water taking,
g
forestry, endangered species, air pollution,
pesticides, toxic substances,
fish stocks, p
waste management etc but do not protect
y
as systems.
y
ecosystems
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11
Inability Of The Current Legal Order To
Address Ecosystem Services
• They are based on the erroneous premise that it is
possible to protect an element of an ecosystem without
protecting
p
g the system
y
that p
produces and supports
pp
it
• e.g. Endangered species legislation typically focuses on
the endangerment of species rather than on the decline
off habitats.
h bit t
• In some legislative regimes listing a species as
endangered
e
da ge ed triggers
gge s so
some
e deg
degree
ee o
of p
protection
o ec o for
o that
a
species’ habitat. The focus is on the population of the
animal rather than the state of the ecosystem within
which it lives
lives.
• This approach is of questionable value
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Inability Of The Current Legal Order To
Address Ecosystem Services
•
•
•
•
•
The same could
Th
ld b
be said
id off any attempt
tt
t tto protect
t t ES rather
th th
than
ecosystems themselves .
Ecosystem services is not the same as ecosystem functions
The critical difference between the two and which makes the development
of ES policy both complicated and controversial is that ecosystem services
have relevance only to the extent that human populations benefit from
them. Theyy are purelyy anthropocentric
ES are products of ecosystems; if ecosystems function is preserved and
protected then ES will also be sustained.
It is suggested that the rationale for protecting ecosystems may well
be utilitarian or anthropocentric purpose of maintaining ES for human
benefit, the way to maintain ES is not to target those services
themselves but to protect the system that produces them
themselves,
them. The
solution to dwindling ES is to protect ecosystem functions
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Way Forward?
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Tort Law - Nuisance
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Nuisance
• Nuisance may be private ( affecting a
particular individual or property) or public
(impacting on a wider group of people)
• Private Nuisance is concerned with the
protection of proprietary rights and
interests.
• Its essence is to uphold the right to quiet
enjoyment of one’s
one s own land
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Nuisance
• It is a requirement of Public Nuisance that a
section of the public is affected and it lacks any
requirement for a nexus between the nuisance
and property.
• Both torts raise issues of environmental
protection as they cover topics such as a noise
and p
pollution,, but this is jjust a side effect of the
scope of nuisance – it is aimed at protecting
individuals not the environment generally
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Ecosystem services and it potential
application in common law
• The use of “ecosystem services” can
extend the reach of the common law.
• Public nuisance actions can be brought
with regard to damage to ecosystems
services, and can assist in framing of legal
action to resist the damage or claim
compensation.
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Conclusions
• Potential damage posed by PTEs to soil fertility
recognised (e.g. 86/278/EEC)
• Current
C
t llegisalation
i l ti anthropocentric
th
t i and
dd
does
not protect ecosystem function
• Thus,
Th
potential
t ti l h
harm tto ES via
i Z
Zn and
dC
Cu b
build
ild
up in soil possible
• Torts related to Private Nuisance may offer
protection to ES provision
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