Environmental Law

by

Liz Fisher

• LAST REVIEWED: 10 October 2019
• LAST MODIFIED: 11 January 2018
• DOI: 10.1093/obo/9780199363445-0089

Introduction

Environmental law is the law of environmental problems. It is a subject that can be traced back to ancient civilizations but has primarily developed since the 1960s as a response to democratic demands to deal with environmental degradation. It is a vast subject covering a range of topics, and what the boundaries of the subject are is often open to debate. For non-lawyers reading environmental-law scholarship and material, there are six important points to keep in mind. First, the subject is jurisdiction based. Any inquiry into environmental law needs to be accompanied with an understanding of the legal system that the inquiry relates to. The environmental law of the United States is distinct from the environmental law of Thailand and even from the environmental law of Canada. There is a large body of international environmental law, but given the nature of international law, it does not legally bind in the way national law does, and it does not exist in an automatic hierarchy with national law. Second, environmental law is “applied law” and thus often involves the application of basic legal concepts to environmental problems. Environmental law in most jurisdictions is primarily made up of legislation, and thus knowing about the legal principles of legislation is important. The role of the courts will also be important in adjudicating on legal disputes. Third, there are common themes across all jurisdictions (e.g., Environmental Law and Tragedies of the Commons and the respective roles of Science and Environmental Law and Public Participation and Access to Justice) and common legal techniques (e.g., Environmental Principles and Regulatory Strategies and Environmental Governance) and legal processes (e.g., the Role of Courts and regulatory Enforcement). It is these common themes that are often the focus of scholarly attention and debate. This article has been structured with this in mind. Research within the field will be more successful if questions are as focused as they can be in relation to themes and jurisdictions. Fourth, this is a fast-moving area of law, and the environmental-law regime of a jurisdiction can change quickly. The law of a decade ago may not be the law now. Fifth, given the social and environmental complexity of environmental problems, the subject is heavily influenced by writings from other disciplines, particularly writings that relate to environmental problems and how a state should respond to them. Sixth, there is no obvious “canon” of environmental-law scholarship due to the jurisdiction-based, fast-paced, and diverse nature of the subject.

Overviews and Histories of the Subject

Environmental law is subject heavy on legal detail. The detail is important but can be challenging for non-lawyers to engage with. The works in this section provide overviews of the subject, how it has developed historically, or both. Some of these, such as Fisher 2017 and Bodansky 2010, have been written for a more generalist audience. These books will not provide you with a comprehensive account of “the law” but will help you gain an appreciation for the dynamics of the subject. Many of these accounts focus on one jurisdiction or one aspect of how environmental law has evolved. These works are often more easily accessible than textbooks for non-lawyers to read. They are also a good starting point to gain an appreciation of the different kinds of intellectual and real-world impulses that shape the subject. Fisher 2017 provides an account of how the subject has arisen in countries across the world and why it is both necessary and controversial. Bodansky 2010 and Lazarus 2004 chart the development of the subject in international law and US law, respectively. Cannon 2015 gives a captivating account of environmental law in the US Supreme Court, and Lee 2014 is a thoughtful set of essays exploring the multidimensional nature of European Union (EU) environmental law. Richardson and Wood 2006 is an excellent collection of essays that examine different themes, including institutions, public participation, command and control, risk, and indigenous people in environmental law. This book is a good starting point for those wishing to get their head around the literature.

• Bodansky, Daniel. 2010. The art and craft of international environmental law. Cambridge, MA: Harvard Univ. Press.

  A highly readable account of international environmental law by one of its most thoughtful scholars.

• Cannon, Jonathan Z. 2015. Environment in the balance: The green movement and the Supreme Court. Cambridge, MA: Harvard Univ. Press.

  This brings together social science accounts of the environmental movement in the United States with a study of the US Supreme Court’s case law concerning environmental issues.

• Fisher, Elizabeth. 2017. Environmental law: A very short introduction. Oxford: Oxford Univ. Press.

  DOI: 10.1093/actrade/9780198794189.001.0001

  An exploration both of why the subject is so important and why it remains eternally controversial. Written for a generalist readership, this is one of the few books that cover a range of jurisdictions.

• Lazarus, Richard J. 2004. The making of environmental law. Chicago: Univ. of Chicago Press.

  DOI: 10.7208/chicago/9780226470641.001.0001

  An account of the development of US environmental law, by a leading US environmental-law scholar.

• Lee, Maria. 2014. EU environmental law, governance, and decision-making. 2d ed. Modern Studies in European Law 43. Oxford: Hart.

  Exploring environmental law, governance, and regulation in the EU context.

• Richardson, Benjamin J., and Stepan Wood, eds. 2006. Environmental law for sustainability: A reader. Osgoode Readers 1. Oxford: Hart.

  An excellent collection of essays that provide a solid cross-jurisdictional analysis of a range of themes in environmental law. A little dated, but a sound starting point for exploring the legal literature.