Developing environmental justice in the curriculum

John McEldowney (University of Warwick) is presenting a paper on how environmental justice can be more fully integrated into the curriculum at the UKCLE event on Environmental justice in legal education on 29 March 2010. He will trace the historical development of how environmental law and regulation have been introduced into the curriculum.

Studying environmental law involves many strategies. Environmental law cases are heard before the ordinary courts, though the development of planning law and public inquiries has been an example of a growing specialist system away from ordinary administrative law. There is no dedicated environmental law court, even though a strong case has been made for one it was rejected by the government. It is also clear that environmental law draws on specific and technical statutory provisions, such as public health legislation and statutes on the control of pollution. The ability to interpret and understand complex statutory enactments is greatly helped by the accompanying explanatory notes and guides to the legislation.

In recent years environmental law has been subject to new and significant developments that reflect changing attitudes to environmental matters among policy makers and politicians. Generalisations about these changes are dangerous and apt to over simplify or rely on a selective reading of patterns of development. It is helpful to try and understand environmental law by trying to trace both historical and contemporary developments. The 1970s provided a legislative framework that was aimed at pollution control and through ‘command and control’ styles of regulation attempted to prohibit or restrict environmentally harmful activities or substances. Standard setting and target limits on emissions together with penalties to ensure that standards were observed were frequently involved. At this time, science and law were co-joined in an enterprise of risk assessment and prescribing what was safe and ultimately sustainable. The adoption of best available technology was prevalent with instructions on processes and procedures. The approach also favoured licenses and permits as well as recognition that safety standards allowed ‘sound science’ a stake in establishing, evaluating and policing their observance. The approach taken was also in keeping with a relatively soft regulatory approach to state intervention. By maintaining acceptable environmental standards, the market economy was considered to be sustainable and forms of self-regulation were adopted to ensure that outcome was in line with industry best practice. Included in the scope of regulatory activities were the main stakeholders, the various levels of central and local government and a proliferation of agencies. It was an approach which found favour in the major industrialised economies.

The 1980s represented a new ideological shift from centralised state focused regulation to a market led orientation. The costs of regulation in terms of jobs and market share became an issue as emerging economies began to dominate the market beyond the boundaries of the more tightly regulated western economies. This shift in workforce practices to new economic regions in Asia, India and Africa was argued to be a direct result of the command control form of regulation with its heavy costs on business and industry. Direct regulation of many processes found less favour with governments, while a more market driven solution to reduce economic costs became the preferred option. Privatisation strategies, particularly involving the public utilities including energy and water, revealed uneconomic practices, poor investment and high business costs that were rapidly passed to consumers in the newly competitive sectors.

The Stern Review and the admission that environmental issues can set the agenda in terms of policy have given rise to Gunningham’s analysis that new regulation is a form of “new environmental governance”. This suggests that legal rules and analysis in environmental law must work collaboratively with new disciplines and that the stewardship of natural resources requires sharing analytical tools and techniques.

Such changes appear to provide environmental law with its own conceptual framework and distinct contribution to the way legal rules are framed. Legal rules tend to rely on detection after the event of their breach. Courts provide an examination of what has occurred and only rarely evaluate future risks. This is an anathema to environmental law, which must attempt to predict outcomes and take steps in anticipation of risks. Principles such as ‘the polluter pays’ and the ‘precautionary principle’, techniques such as ‘eco-labelling’ and the development of environmental impact assessment and integrated pollution control are examples of the distinct contribution environmental law is making to the general development of new concepts in law.

Environmental lawyers place reliance on scientific data and methodology in measuring and understanding anthropogenic impacts on the environment and to provide monitoring techniques. Science is used to help predict outcomes and deal with the impact of man’s activities on the environment. Scientists will increasingly need to understand the impact of legal rules on the environment. Evolving legal rules to serve the needs of the scientist presents one of the formidable challenges for the future. At international, European and national level environmental policies are being shaped, albeit belatedly, that begin to take account of the challenges to the environment in the 21st century.

Environmental law has also a fundamental place in what is termed socio-legal studies. This provides both an empirical base as well as an analytical framework for the study of environmental law. The focus is not only on legal institutions and how they work but also on the impact of law and how attitudes to the environment may be shaped by environmental laws. Environmental law now has a firm root as part of socio-legal studies. Less clear is how to ensure the important role of science, particularly well informed sound science, is recognised and how it can be used effectively and communicated to the general public. Within the breadth of socio-legal studies, globalisation is recognised and embraced, no less so in environmental law with the immense geographical distribution of resources setting sustainable development at the top of the international as well as national agenda for environmental law.

It is clear that environmental law can adapt and face new environmental challenges. There is a sense that environmental law as a discipline may fit the description of a “genuinely scientific social science of law”. Elevating environmental law to take a pivotal place in the curriculum will take some time. The possibility, however, that such a specialised field will provide a more theoretical, but at the same time evidence based approach to law than hitherto is being considered by many writers. In an age of financial and economic turbulence, there is a significant role for the study of environmental law to fulfil. It must provide analysis and ideas that go to ensure that economic criteria do not outweigh the needs of the environment. Recognising science as an ally in this ambition will draw legal scholars into new and exciting challenges. The transnational dimension of environmental law itself offers a rare opportunity to engage in comparative evaluations including examining the effectiveness and efficiency of law for the protection of the environment.

About John
John McEldowney is a professor in Warwick School of Law. He has published widely in the fields of public law and environmental law. He co-authored a forthcoming book, Environment and law.

Last Modified: 4 June 2010