Environmental Law

by

Robert Percival

• LAST REVIEWED: 17 August 2022
• LAST MODIFIED: 23 August 2017
• DOI: 10.1093/obo/9780199756797-0169

Introduction

Concern over the effects of pollution on public health has been a major factor shaping the development of environmental law. Prior to the rise of the regulatory state, courts used the common law of public and private nuisance to umpire disputes over air and water pollution. Beginning in the 1970s, the United States largely centralized environmental regulation in the federal government after years of effort to prod states to act proved unsuccessful. Today, a plethora of federal environmental statutes establish comprehensive regulatory programs to protect public health from exposure to pollution. The laws generally require federal agencies to set minimum national standards that can be implemented and enforced by state authorities under delegated authority. Environmental impact assessment requirements are the most widely adopted provisions of environmental law around the world. These laws require assessment and consideration of potential environmental effects of major actions likely to significantly affect the environment before they are approved. But environmental law now extends far beyond environmental assessment. The laws also direct expert agencies to set standards to limit emissions of pollution, to ensure that hazardous wastes are managed safely, to regulate chemical use, and to protect endangered species. Environmental laws employ a variety of approaches for determining how stringently to regulate. These include technology-based standards, health-based regulation, and approaches that balance risks and benefits. In recent years, more emphasis has been placed on informational regulation that requires disclosure of potential hazards to consumers and members of the general public. In many countries, the environmental laws require agencies to solicit public input when they develop regulations. These laws provide for judicial review of agency actions and authorize citizen suits to ensure that the laws are implemented and enforced. As countries increasingly borrow regulatory innovations from one another, traditional distinctions between domestic and international law are beginning to blur. The growing importance of nonstate actors in influencing the development of global environmental law and policy also is blurring traditional distinctions between private and public law.

Reference Resources

Environmental law is a rapidly growing field that is increasing in complexity as it extends its reach around the globe. Because the field has become so vast, most practitioners specialize in particular aspects of the field. The following is an annotated list of the leading journals, casebooks, and websites that cover this enormous field and report on new developments in law and regulatory policy. Because the environmental law field has been developing so rapidly, journals increasingly are publishing materials online and casebooks are using websites to provide updates on new developments. Transnational Environmental Law has quickly become the most respected peer-reviewed environmental law journal that focuses on the global dimensions of the field. The three top student-edited specialty environmental law reviews are Ecology Law Quarterly, the Harvard Environmental Law Review, and Environmental Law. The Environmental Law Reporter: News and Analysis is a highly respected journal that is widely read by practitioners of environmental law. EcoAméricas provides timely coverage of recent developments in environmental law and policy in Central and South America. The two leading casebooks on environmental law in the United States (Percival, et al. 2013 and Plater, et al. 2016) are both published by Wolters Kluwer. Hunter, et al. 2015 is the leading casebook on international environmental law. The leading environmental law blogs are Legal Planet and Environmental Law Prof Blog. The IUCN Academy of Environmental Law website has valuable material on developments in environmental law around the world through its E-Journal and useful bibliographies in its Essential Readings in Environmental Law.

• EcoAméricas. 1998–.

  Published monthly by Fourth Street Press of Beverly, Massachusetts; covers developments in environmental law and policy in Central and South America. Articles include detailed resource and contact information, and subscribers receive a separate guide annually that contains contact information for key environmental NGOs and government officials in the region. Further information is available at the publication’s website.

• Ecology Law Quarterly. 1971–.

  One of the most respected environmental law journals in the United States, this publication is edited by law students from the University of California at Berkeley. The journal, which is published four times per year, also maintains an online journal called Currents that publishes articles of contemporary interest.

• Environmental Law. 1969–.

  This is the oldest law review in the United States that specializes in environmental issues. It is published four times per year by law students from the Lewis & Clark Law School in Portland, Oregon. Each year the publication also publishes an article that is the product of the law school’s annual National Resources Law Institute Distinguished Visitor lecture.

• Environmental Law Prof Blog.

  Although not as stylistically elegant as Legal Planet, this blog provides valuable perspectives on developments in environmental law from a diverse group of environmental law professors. It also includes discussion of issues that arise in the teaching of environmental law, including what books to recommend to prepare students for the study of environmental law.

• Environmental Law Reporter: News & Analysis. 1971–.

  Published monthly by the Environmental Law Institute, a nonpartisan environmental think tank in Washington, DC. It contains articles and updates on important developments in environmental law and policy. Widely read by practitioners of environmental law, it also provides a comprehensive list of significant recent environmental decisions by courts and actions by regulatory agencies.

• Harvard Environmental Law Review. 1976–.

  This journal, edited by law students from Harvard Law School, publishes two issues per year. It also hosts a website that is part of the Environmental Law Review Syndicate, a consortium of ten US environmental law reviews that selects one student article per week to be shared on the websites of all ten reviews.

• Hunter, David, James E. Salzman, and Durwood Zaelke. 2015. International environmental law. 5th ed. St. Paul, MN: Foundation Press.

  This is the most widely adopted casebook in the international law field. It provides comprehensive coverage of the field, examining how major environmental treaties have evolved, customary principles of international environmental law, and the role of diplomacy and nonstate actors in shaping the development and implementation of international norms.

• IUCN Academy of Environmental Law. 2009–.

  A consortium of environmental law professors from more than 200 law schools in more than sixty countries, the Academy publishes an annual online journal with articles and reports on developments in environmental law and policy in several countries written by experts from each country. The Academy’s website, parts of which are available in four languages (English, Spanish, French and Chinese), also has sixty online bibliographies (“Essential Readings”) addressing various environmental topics.

• Legal Planet.

  The leading environmental law blog, Legal Planet publishes new material nearly every day. It is a joint venture of environmental law professors from the University of California at Berkeley and UCLA Law School, who frequently are joined by guest bloggers. The blog is particularly valuable for its coverage of legal and policy developments in California, the state with the most progressive climate policies in the United States.

• Percival, Robert V., Christopher H. Schroeder, Alan S. Miller, and James P. Leape. 2013. Environmental regulation: Law, science & policy. 7th ed. New York: Wolters Kluwer Law & Business.

  This has been the most widely adopted casebook on environmental law in US law schools. It is designed to be accessible to non-lawyers. After providing a structural overview of the field, the book covers risk regulation, waste management and remediation, control of air and water pollution, land use regulation and regulatory takings, environmental impact assessment, protection of biodiversity, environmental enforcement, and global environmental law. A casebook website that tracks new developments in the field is available online.

• Plater, Zygmunt J. B., Robert H. Abrams, Robert Graham, Lisa Heinzerling, David Wirth, and Noah Hall. 2016. Environmental law & policy: Nature, law, and society. 5th ed. New York: Wolters Kluwer Law & Business.

  This popular casebook is organized primarily on the basis of different legal strategies for protecting the environment. These include common law approaches, administrative law, disclosure statutes, planning requirements, harm-based regulation, technology-based regulation, market-enlisting strategies, and the public trust doctrine, among others.

• Transnational Environmental Law. 2012–.

  Published twice a year by Cambridge University Press, this is the first journal to focus specifically on the growing transnational dimensions of environmental law and policy. This peer-reviewed journal, edited by Professors Thijs Etty and Veerle Heyvaert, contains valuable articles, book reviews, and editorials, many of which examine how nonstate actors influence environmental law and policy. It is available both online and in print.