Rather, it focuses on understanding the conditions under which the state can be said to act with legal authority when it regulates the environment. I argue that public environmental decisions will have legal authority when they are 8 publicly justified on the basis of core constitutional principles. As we will see in chapters six and seven, these principles operate at a high level of generality, but they are not abstract; they are sensitive to particular decision-making contexts.
In addition to being defensible, a coherent theory of environmental law is also valuable to the discipline. Despite the interconnectedness of environmental issues in the real world, the field of environmental law is marginalised from other areas of public law and increasingly fragmented. For example, we will see in chapter two that the outcomes of judicial review of a wide range of environmental decisions can be explained by a common set of rule-of-law assumptions held by the courts and environmental advocates.
Striving for a unified theory of environmental law allows us to focus on the core challenges of environmental issues to better understand the limits and potential of existing public law theory. In the tradition of democratic pragmatism, the theory developed in this book is grounded in the institutional practices of environmental law. The book focuses on three detailed environmental contexts: forest law in British Columbia, the assessment of inter-provincial oil pipelines and wind turbine development.
The first context spans a number of chapters, beginning with the specific circumstances of an unprecedented mountain pine beetle epidemic and moving through the broader legal and institutional architecture of forest governance in British Columbia. The extended focus on British Columbia forestry may seem technical or parochial for those unfamiliar with Canadian geographical and political landscapes.
Canada is home to vast expanses of forest paralleled only by the equally vast Canadian arctic. This image of expansive and untrammelled forest looms large in the Canadian wilderness psyche. These two examples highlight the contemporary challenge of reshaping the Canadian resource economy to more sustainable energy sources. While the details of these examples are distinctively Canadian, the legal issues and theory embedded within them are not. These examples raise perennial environmental law issues such as the appropriate role of judicial review, regulatory instrument choice, institutional design and the interpretation of the precautionary principle, all of which are examined in the chapters that follow.
This book is divided into two parts. In brief, Part I establishes the concept of the environmental emergency and demonstrates its utility in unpacking rule-of-law assumptions implicit within existing approaches to environmental law. Part II turns to the rule-of-law theory of public justification and its elaboration in the environmental context.
Chapter one makes the case for approaching environmental law from the perspective of an emergency. This chapter is grounded in current ecological theory, which posits that ecosystems are complex, adaptive systems, and in risk sociology, which emphasises the inherent limits of predicting the catastrophic potential of human action. Together, these literatures reveal that environmental issues possess the constitutive features of an emergency: an inability to know in advance which issues contain the possibility of a catastrophe and an inability to know in advance what to do in response to such an unforeseen event.
State of emergency
I canvass two potential responses to this challenge—the extra-legal approach and an accommodation approach—which provide a background framework for understanding the arguments in the two chapters that follow. Chapters two and three argue that the emergency framework provides a novel critique of existing approaches to environmental law.
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In chapter two, I argue that the dominant position in Canadian environmental law scholarship—the environmental reform position—does not face up to the emergency features inherent in environmental issues. It therefore mistakenly advocates for a formal conception of the rule of law. It illustrates how adherence to the formal conception of the rule of law has created these black and grey holes throughout Canadian environmental law.
Chapter three takes up the burgeoning literature on environmental governance. It argues that the literature correctly diagnoses the epistemic challenges of environmental issues. But because it assumes a formal conception of the rule of law, it rejects the rule of law as irrelevant to complex environmental decision-making.
A National Emergency on the Border? | Verfassungsblog
Much like the extra-legal approach, environmental governance proponents treat the rule of law as a luxury that we cannot afford. Instead, commentators evaluate environmental governance on the basis of an assortment of criteria: typically effectiveness, transparency, participation and accountability. And while these criteria may be important components of any conception of the rule of law, they are at best only components. This chapter argues that subsuming law within a broader paradigm of governance risks eclipsing what is distinctive about law—the fact that it respects individuals as rational agents capable of actively participating in their own system of governance.
Environmental governance risks abandoning the language needed to explain fully the strengths and weaknesses of novel forms of environmental governance. Part II of the book turns from critique to the elaboration of a democratic theory of the rule of law that responds to the environmental emergency; this is the rule-of-law theory of public justification. Chapter four introduces the contours of the theory, which forms the basis of the remainder of the book.
The public-justification conception requires public officials to publicly justify their exercises of authority on the basis of core common law principles, such as fairness and reasonableness. The chapter argues that the requirement of public justification lies at the interface of common law constitutionalism and theories of deliberative democracy. It argues that both theoretical traditions share an understanding of the individual as a responsible agent, capable of actively participating in the ongoing project of democratic governance under the rule of law.
The requirement of public justification both protects and enables this agency through the requirement of reason-giving, a requirement informed by the common law and deliberative-democratic requirements explored in subsequent chapters. Chapter five takes up the first of these specific requirements: creative institutional design. The crux of this chapter is that in emergency contexts including the environmental emergency , creative institutional design will be necessary to maintain the rule of law.
The chapter offers the example of the British Columbia Forest Practices Board, a hybrid institution that 11 approximates, in unconventional ways, the requirements of public justification across a range of environmental decisions. The chapter then draws on insights from democratic experimentalism, a branch of deliberative democracy, to show how public justification can be maintained even in complex regulatory contexts that cannot fit easily into adjudicative models of review.
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The focus of chapter six is then on the specific common law principles of reasonableness and fairness. To respect the status of the legal subject as a responsible agent in the context of environmental decision-making, reasonableness and fairness must be informed by key environmental principles, namely the precautionary principle and sustainable development. It argues that a deliberative-democratic interpretation of precaution and sustainable development has the effect of modifying general common law requirements of fairness and reasonableness in order to preserve the distinctive relationship between legal subject and lawmaker.
In doing so, these core environmental principles demand of the National Energy Board a process and decisions that are justified on the basis that they attend to the interests of those affected by its decisions. Chapter seven builds directly on the analysis in chapter six of the principle of reasonableness.
Chapter seven allows us to understand how a public decision-maker can reason adequately in a challenging environmental context that engages multiple, competing environmental considerations. The context for the chapter is controversial industrial wind turbine development in Ontario. This controversy has led to a robust body of tribunal jurisprudence that considers the potential harms to human and environmental health that result from wind energy. The chapter argues that the Tribunal reasons adequately about these harms when it offers a cogent justification of its decision on the basis of the relevant statutory considerations, interpreted consistently with a common law backdrop protective of individual agency.
We will see that in many instances, the Tribunal reasons adequately even though its public-justification role in protecting individual agency remains implicit.
Finally, in chapter eight, the emergency framework returns to the fore in order to help develop the relationship between the public-justification conception of the rule of law and a constitutional right to a healthy environment. We will see that prominent academic proposals in Canada for a Charter right to a healthy environment have neglected the need for a theory of law that is facilitative of a robust constitutional environmental rights 12 jurisprudence. It attends to the method of constitutional rights adjudication in Canada and reveals how the formal conception of the rule of law implicitly operates to undermine environment-related claims under existing provisions of the Charter of Rights and Freedoms.
At the same time, the possibility of an actual environmental catastrophe is omnipresent, stressing our enduring vulnerability to environmental harm.
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Early chapters canvass a disaster in the forestry context and its legal and regulatory responses. Chapter six , on pipelines, addresses the possibility of a known but as yet unrealised disaster, namely a major marine oil spill. Chapter seven , on wind turbine development, merges both preventive and response dimensions of disaster. In sum, the book develops a constitution of the environmental emergency. First, the chapters of this book construct a concept of the environmental emergency with its own three-part internal constitution.
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Since December, the President has been negotiating with congressional leaders for wall funding. He precipitated a shutdown to increase pressure on the Democrats, but ultimately had to back off. It was when the legislative process finally failed to yield him the funding that he sought for a second time that he signaled this change of course. If the President goes forward with this plan, it will find its way before the courts.
This move reflects the indifference or hostility to constitutional norms that has become a hallmark of the Trump presidency. You read this long post all the way down. Thanks, much obliged!