By Liz Fisher
I sit here writing this on New Year’s Day. Looking back at 2013 it has been a year in which there has been a growing disjunction between academic discourse and political discourse over environmental issues. On the one hand academic and scholarly discourses have become more sophisticated. Sophisticated in this regard is not another word for pretentious. What I mean is that such discourses are increasingly becoming more nuanced and rigorous so as to get to what Garrett Hardin once described as ‘the nature of things’. The starting assumption is that environmental problems are complex, uncertain, value laden and polycentric and do not yield to simple solutions. As this is the case, responses need to be careful, calibrated and constantly under scrutiny. Scholarship is thus stressing the fundamental importance of critical reflection and hard thinking. There are countless examples of this and I am always reminded of it when I am editing articles for the Journal of Environmental Law. These articles are not rushed diagnoses with simplistic treatments. Rather the majority of them require the reader to think harder and more carefully about a problem and possible responses to it than that reader thought was necessary. This is particularly when the agreed frames for action in relation to environmental problems does not exist.
At the same time, political discourse over environmental issues in some jurisdictions is moving in another direction — a direction in which the way in which environmental problems are framed has three distinct aspects — all of which jar with academic discourse. The first I have noted before on this blog: the way in which environmental law is perceived as at odds with economic growth. This characterization is deeply problematic for the very obvious reason that human society is ultimately limited by the capacity of the natural environment to sustain what we do. Perceiving environmental law as an economic threat flies in the face of the rich literature on sustainable development. I don’t pretend that that literature is an easy read or there are simple solutions — but that is exactly my point above. The impact of environmental law scholarship is that it makes clear that these are difficult problems that require responses that acknowledge that fact.
That relates to what I find the second jarring feature of some current political debate. The way in which environmental protection regimes are being characterized as a luxury that in straightened economic times we must do without. As such, I feel environmental law is being understood as a bar of chocolate or day trips that a family decides to forgo so as to make their budget balance. The problem of course is environmental protection is not really like a day out to the zoo or a jar of sweets. It is more akin to good dental hygiene, insurance, or maintaining your car. These things do cost but if you don’t manage these issues properly you store problems up for the future.
The final aspect of current political discourse that is at odds with scholarly discourse is the way in which debate over ‘the facts’ in relation to an environmental problem is being carried out. Scientific uncertainty is a feature of environmental problems, not least because as a society we are trying to predict what will happen in the future. As this is the case, the explicit engagement with scientific uncertainty is a feature of most disciplines that deal with environmental problems. As this is the case, scholarly discourse is less about uncovering the right set of facts but about crafting the best methods and best approaches to determining our ‘objective’ understanding of the world. Yet much political debate tends to pivot around an assumption that either one political side or the other is wielding the ‘correct facts’. This results in the significance of intricate scientific practices and institutional frameworks being sidelined.
The end result of all of this is the rolling back of environmental protection regimes in some jurisdictions. This is both explicitly and implicitly. The best explicit example can be seen the dismantling of the comprehensive regulatory scheme that Australia set up to deal with climate change and replace it with a more ‘voluntary approach’. Crucial to this process was the framing of a complex trading scheme as a ‘tax’. A good implicit example is the set of planning reforms introduced in the last two years in the United Kingdom. Thus while the new National Planning Policy Framework does state the importance of environmental protection, the definition of sustainable development clearly favours economic growth. In highlighting these examples, I am not arguing we should not reflect on the state of environmental laws and how they can be better (when ‘better’ is a multifaceted concept) but such reform must be on the basis of reflective discourse.
So sitting here on New Year’s Day, the issue of New Year’s resolutions comes to mind. I am slightly hesitant in regards to such resolutions, particularly in relation to an issue as large and complex as environmental protection. Resolutions in relation to my own action are trivial and demanding others make resolutions in relation to their own actions is a bit like telling my children that their New Year’s resolutions will be to clean their teeth properly and to think about their maths homework more carefully. But all of the above is less about action in relation to environmental problems (although that is important) and more about how we understand such problems. So let me make a suggestion — that we all try and engage in critical reflection in regards to environmental problems over the next year, and more importantly encourage others to do the same. This type of discussion will not result in magic bullets in relation to environmental problems. But what it will result in is an understanding that such magic bullets do not exist and that environmental problems need to dealt with and require careful analysis and measured debate.
Liz Fisher is General Editor of the Journal of Environmental Law and Reader of Environmental Law in the Faculty of Law, University of Oxford.
The Journal of Environmental Law celebrated its 25th Anniversary in 2013 and a special Anniversary issue of reflective pieces ‘Environmental Law: Looking Backwards, Looking Forwards’. The special issue considers the nature of ‘hot environmental law’ and the role of environmental law scholarship.
The Journal of Environmental Law has established an international reputation as a lively and authoritative source of informed analysis for all those active in examining evolving legal responses to environmental problems in national and international jurisdictions. Appearing three times annually, the Journal is a rigorously peer-reviewed forum dedicated to publishing significant articles across a wide environmental law spectrum, seeking out innovative and authoritative appraisals of policy and practice, alongside current and emerging legal concepts.
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Image credit: A hiker standing on top of a large rock at Hound Tor in Dartmoor England overlooking a valley. © Rich Legg via iStockphoto.