Environmental Law

Abstract

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.