#17717 - Environmental Problems And Environmental Governance Notes - Environmental Law

Environmental Problems and Environmental Governance Notes

What is environmental law?

Definition

Environmental law – the law relating to environmental problems

This definition of environmental law is not particularly illuminating, and thus there are three different approaches which try to expand upon this definition: (i) descriptive, (ii) purposive, and (iii) jurisprudential.

1. Descriptive

A descriptive definition of environmental law merely equates it with the laws relating to environmental protection that exist in a particular jurisdiction.

• In the UK, this would refer to UK statutes, delegated legislation, EU law, policies and case law concerned with regulating environmental problems.

While, prima facie, this descriptive definition appears to provide clear boundaries, it is actually subject to two limitations:

• Definition of ‘Law’

  • It is difficult to determine exactly what the relevant law is in the context of environmental problems

    • Sadeleer (2002) has said that lawmakers have had to renounce general legal formulations and turn to more flexible modes of action, including policy and regulatory strategy

      • These are inherently more ambiguous sources of law, and it is difficult to determine their exact boundaries such that saying any particular thing is an environmental ‘law’ is difficult

• Definition of ‘Environment’

  • There is no single definition of the environment

    • There are even different definitions to be found in the legislation:

      • s29 Environmental Protection Act 1990 – refers only to land, water and air and does not refer to animals or buildings

      • Environmental Liability Directive – includes damage to plant and animal species

2. Purposive

A purposive definition of environmental law defines it in terms of the purpose the law is designed to achieve

A purposive definition emphasises that we need to understand the rationale behind laws in order to understand them.

• Flournoy (2003) has said that If neither the public nor the decisionmakers articulate the ethical issues involved, we cannot ultimately know whether our laws and policies are consistent with our ethics

  • This reflects the fact that environmental law is primarily a social programme implanted through law

There are three senses in which a purposive definition is inadequate:

• Law as Instrumental

  • A purposive definition construes the driving logic of environmental law as exterior to law, viewing it merely as a means to an end

    • This disregards the fact that law is a culture replete with a distinct body of reasoning, ideas and processes

      • When dealing with environmental issues, judges are also dealing with this legal culture

• Environmentalism as Complete

  • A purposive definition assumes that the role of environmental law is to pursue a particular environmental ethic

    • McAuslan (1991) notes that the reality is that environmental lawyers are actually contributing to the development of this incomplete environmental ethic

      • This is through their expertise on the responsibilities of the state, private rights and other relevant interests.

• Disagreement as to Purpose

  • A purposive definition of environmental law ignores the fact that there is considerable disagreement about the nature and purpose of environmental law

    • Flournoy (2003) identifies a number of different ethic impulses in IS environmental law, including environmental justice, land ethics, private rights ethics, development ethics and sustainability

      • Defining environmental law in terms of these many purposes would be incredibly difficult

3. Jurisprudential

A jurisprudential definition of environmental law understands it as a body of substantive legal reasoning.

• This definition responds to the ‘Law as Instrumental’ objection above, in asserting that the focus of legal attention is not on the environmental outcome but rather on the legal reasoning which is applied

  • Coyle and Morrow (2004), for instance, argue that the legal foundations of environmental law are well entrenched in the law of property

There are two problems with a jurisprudential approach:

• Jurisprudential Content is Unclear

  • In assessing environmental law from a jurisprudential approach, it is not exactly clear what jurisprudence is relevant

    • Douglas Fisher (2013) describes the subject in terms of core legal concepts, while Coyle and Morrow specifically focus on property law

      • This reflects Fisher (2013)’s analysis that environmental law is ‘hot’ law (see below)

• Over-Emphasis of Uniqueness

  • A jurisprudential approach potentially over-emphasises the uniqueness of environmental law as a subject.

    • Cane (2001) has said that unlike the law of contract or property but like product liability, environmental liability law and ‘toxic tort law’ are functional or practical legal categories—they do not have a conceptual unity of their own.

      • They have grown out of attempts to use existing legal techniques and concepts to deal with new social problems – environmental law is not special in this respect.

There are three reasons why these definitions matter:

1. A chosen definition of environmental law will affect what is adopted as the focus for analysis

   1. Holder and McGillivray (1999) highlight that different legal processes and remedies can be deployed to address environmental concerns – the limitations of these processes and remedies will determine the limits of which environmental problems the law can analyse.

2. How the environment is defined will impact upon the way the law is applied

   1. Definitions matter for how rights and obligations are understood

      1. In Department for Business, Energy and Industrial Strategy v The Information Commissioner the definition of ‘environmental information’ in the Environmental Regulations 2004 was defined, per Beatson LJ in a purposive way, due to the inefficiency of a literal approach.

         1. Had a literal approach been adopted, the Court would have reached a different conclusion

3. How the subject is defined will directly affect how the law is evaluated

Environmental Law as ‘Hot’ Law

Fisher (2013) has argued that the polycentric, interdisciplinary, normative and scientifically uncertain nature of environmental problems leads to a body of environmental law in which it can be difficult to settle on a single frame for understanding a problem

• The result of this is that it is often very difficult to understand and identify the relevant parties, the relationships between them and the courses of action that can be taken.

In reaching this conclusion, Fisher borrows Michael Callon’s terminology of ‘hot situations’

• Callon describes a business-as-usual model according to which actors and actions operate according to a settled and solid framework

  • Law plays a role in creating these frameworks, but it is recognised that any given framework will be imperfect and will be unable to contain everything – where a framework cannot contain something this will lead to an overflow (a situation which the framework was not expected to handle)

    • How a system responds to these overflows determines whether they are hot or cold situations

      • Cold situation – Where the framework has a system by which the overflow can be easily identified and managed

      • Hot situation – Where the framework has no system by which the overflow can be easily identified and managed

        • Here “everything becomes controversial: the identification of intermediaries and overflows, the distribution of source and target agents, the way effects are measured. These controversies which indicate the absence of a stabilised knowledge base, usually involve a wide variety of actors. The actual list of actors, as well as their identities, will fluctuate in the course of a controversy itself and they will put forward mutually incompatible descriptions of future world states”

• Fisher thinks that this concept of hot situations is a good description of much of environmental law – environmental law is hot law

  • This does mean other legal subjects are not hot, and nor does it mean all environmental problems have the same degree of heat

The result of identifying environmental issues as hot reveals that the controversies surrounding environmental law are structural and foundational.

• The socio-political conflict, polycentricity, interdisciplinarity and scientific uncertainty are not just interesting features of environmental problems, they are an important part of the operational reality of the subject

There are three points to draw out from Fisher’s analysis of environmental law as ‘hot’:

1. The process of ‘framing’ environmental issues and thus environmental law itself is chaotic

   1. There are a range of different legal regimes which deal with environmental law, including statute, EU legislation, policy all of which might say slightly different things in terms of how to respond to an environmental problem

      1. The result of this is that environmental problems might constantly be reframed in search of a better approach

         1. BUT: consider how constant this reframing is: passing environmental legislation is quite tricky and time-consuming, the reframing takes place through policy

2. The legislative development of environmental law is not linear

   1. On-going legislative reform in areas such as water and industrial pollution control are exercises in framing and reframing where the process of reframing can result in the re-conceptualising of the nature of a problem, who the relevant actors are, and what should be done

      1. NOTE: this views environmental law as being something of a trial and error endeavour

3. The courts are left to mediate the...