This is an extract of our Environmental Problems And Environmental Governance Notes document, which we sell as part of our Environmental Law Notes collection written by the top tier of Oxford students.
The following is a more accessble plain text extract of the PDF sample above, taken from our Environmental Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Environmental Problems and Environmental Governance Notes
What is environmental law?
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.
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'
o 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'
o 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
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
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 a. 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 a. Definitions matter for how rights and obligations are understood i. 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 a. 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 i. 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 a. 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 i. NOTE: this views environmental law as being something of a trial and error endeavour
3. The courts are left to mediate the hotness of environmental law a. The courts play the important role of making sense of legislative schemes,
reconciling different areas of the law, building coherent bodies of doctrine and/or engaging in the process of judicial review i. The various different interests and frames involved in the legal approach to environmental problems are solved by judges - this is not an easy task
1. NOTE: sometimes judicial attempts to make sense of all of these different frames can actually worsen rather than remedy the hotness of environmental law.
What are environmental problems?
Environmental problem - a situation where there is a collective judgement that environmental quality is not acceptable, or that there is a threat to an acceptable level of environmental quality
This definition is open-ended and vague so as to reflect the fact that environmental problems are not settled - they are constantly changing and evolving
Dryzek (2013) notes the sheer systematic complexity of environmental problems, including their interconnectedness and multidimensionality.
Dryzek highlights three closely context sources of complexity: (i) their collective nature, (ii)
the way in which environmental problems do not present themselves in well-defined boxes as a result of their boundary crossing quality, and (iii) their systematic complexity.
1. Collective Nature
The causes and solutions to environmental problems are not solely the product of individual autonomous actions, and thus they cannot be approach in isolation.
An individual might make a decision to reduce their carbon footprint through various actions, but this alone will not result in a serious reduction in greenhouse gas emissions.
There are three features to note about the collective nature of environmental problems:
Polycentricity means "many-centred", and idea which Fuller (1978) describes in terms of a spider web
"A pull on one strand will distribute tensions of a complicated pattern throughout the web as a whole. Doubling the original pull will, in all likelihood, not simply double each of hr resulting tensions but will rather create a different complicated pattern of tensions"
o Environmental problems are not akin to the traditional bi-polar disputes that are the subject of much of private law
Disincentives to Look After the Commons
Environmental problems generally arise due to the way in which individual or community behaviour impacts on others and the world around them
The impact invariably falls not on private part but on the 'commons'
(those parts of the natural environment that are not private owned)
o Hardin (1968) describes a disincentive to look after the commons which arises as a result of men rushing to pursue their own best interests
In relation to pollution, "the rational man finds that his share of the cost of the waste that he discharges into the commons is less than the cost of purifying his wastes before releasing them"
NOTE: Hardin's analysis can be seen as promoting the virtue of private property ownership as a solution to tragedies of the commons - if individuals have an investment in land ownership, they are more likely to take care of it in environmental terms
Operation of the Market
Hardin's "rational man" is rational only because he needs to maximise his gains in a market economy
Sagoff (2004) explains the Pigouvian theory which explains the relationship between markets and environmental protection
The cause of environmental problems is the fact that individuals do not need to pay for their use and/or abuse of the commons and thus they ignore the adverse environmental impacts —the 'externalities'—that their activities have.
o Sagoff criticises this to the extent that it requires the state to assess the costs of the private activity which damages the commons, and then redistribute these costs
Buy the full version of these notes or essay plans and more in our Environmental Law Notes.