By Liz Fisher
I have been pondering this question since asking my seven-year-old son (who for the record is not an environmental law scholar) what Earth Day was about and he told me ‘That’s the day you think about climate change and stuff’. His description might not be the most accurate and Earth Day has a complex history, but he is correct in the general sentiment. The problem of course, is that like all environmental law scholars, I am thinking ‘about climate change and stuff’ every day and so having a special day to think about these issues seems a bit gratuitous.
Or maybe not. Earth Day, if it is anything for a scholar, is a day to take stock and reflect on how environmental protection policy and law have evolved over four decades. That reflective process is not as easy as most would think; the speed and scale of environmental debate often leaves scholars, decision-makers, and ordinary people with little time to think about the bigger picture. Different areas of environmental law have become specialized and compartmentalized. There is no such thing as a generalist environmental lawyer or environmental law scholar anymore; rather there are experts working in specialist areas of environmental protection. In such circumstances it becomes very difficult to see how environmental law has evolved overall. So let me use this Earth Day to reflect on that process of evolution and progression.
The first thing to note is that the process of evolution in relation to environmental law and policy has not been linear. The first Earth Day in 1970, celebrated primarily in the US, was at a time when there was bipartisan support for environmental protection in many Western jurisdictions. Much of this arose out of the appreciation that environment degradation placed real limits on economic growth. That appreciation developed into the concept of sustainable development with the Bruntland report in 1988 and the Rio Conference on Environment and Development in 1992. The situation now is far more complex. On the one hand, there have been the development of quite ambitious environmental law regimes; the UK Climate Change Act 2008 is a good example. On the other hand, environmental protection has less political traction than it once did and there is now a perception that environmental law, not environmental problems, provides limits on growth. Another example is public participation. While it is recognized as an important feature of regulatory regimes in theory, that does does not mean that it is an accepted part of the landscape in practice.
Second, it is clear that over time the governance structures for environmental decision-making have become more polycentric and require a more nuanced account of governance structures. Within any one jurisdiction, a number of different regimes that address different issues will exist and these will overlap and interrelate. Likewise, the national, transnational, and international levels of environmental regulation interact in complex ways. Thus for example, the nature of regulatory competition in the environmental context is multi-dimensional and national decisions about nuclear energy don’t take place in a jurisdictional bubble.
Finally, environmental law scholars must really get to grips with the legal detail. We must dig deep into the infrastructure planning regime so as to understand what role public participation is really playing in that context. You cannot understand the prospects of the Climate Change Act 2008 without understanding the legal and political nature of devolution. Scholars must move past simple understandings of regulatory competition. The evolution of environmental law is thus really about its increasingly complexity, and thus the need for greater expertise on the part of legal scholars. This of course is one of the reasons for the compartmentalization of the subject; it is hard to foster expertise right across the vast landscape of environmental law.
Such fragmentation and specialization does not mean that environmental law scholars in different areas cannot and should not communicate with each other. Rather the challenges of interacting across these specialized areas need to be faced head on. Likewise, any attempt to develop overarching approaches to environmental law should not be at the expense of the legal detail.
So all in all there is great merit in my son’s perception of Earth Day. There is a lot of ‘stuff’ to think about, and think hard about. That ‘stuff’ requires careful and critical reflection and the process of thinking is by no means easy. That of course makes Earth Day important for environmental law scholars.
Liz Fisher is General Editor of the Journal of Environmental Law. Read a special collection of journals articles for Earth Day.
Condensing essential information into just three issues a year, the Journal of Environmental Law has become an authoritative source of informed analysis for all those who have any dealings in this vital field of legal study. The journal exists for both legal practitioners and academics, but also proves accessible for all other groups concerned with the environment, from scientists to planners.