Abstract
The author commences Environmental Law with a chapter, which bears the ominous title, ‘Troubles’. She immediately reminds the reader that ‘environmental law is the law relating to environmental problems, which encompass myriad troubles to do with our surrounding physical environment, air pollution, water pollution, land degradation, species extinction, deforestation, anthropocentric climate changes’. Such troubles are collective in nature. They are caused by the actions of many and they impact many. Furthermore, according to Fisher, environmental problems are the troubles of politics, society, economics and philosophy. However, environmental problems are also the troubles of law. That is to say, environmental law is a necessary response to environmental problems. Most such problems have been created in the last 50 years. The author then delineates the parameters of her work.
She observes that, whereas Environmental Law will not transform the reader into a lawyer, it will give one an appreciation for the nuances and difficulties of this area of law. The book maps how inter-dependent societies across the world develop robust and legitimate bodies of law to address environmental problems. The learned author concludes by stating that her exploration of environmental law, tracks back and forth across its vast landscape. However, she observes that there is no linear path through its terrain. Her work does not simply consist of cases, legislation, treaties and the work of legal scholars; rather it includes the writings of essayists, novelists, anthropologists, sociologists and political thinkers.
Fisher then goes on to discuss the nature of the various environmental problems which affect the world. To the author, such problems take different forms. There is air pollution in Delhi, wilderness destruction in Australia and waste dumping in Italy. However, while these problems are varied, they do have a common structure. To the surprise (and slight amusement of the reviewer) in order to describe that structure, Fisher uses an environmental issue which has manifested itself outside her very front door in Oxford! She informs the reader that when she moved into her terraced house, the fact that there was no garage did not constitute a problem. Although the street outside was so narrow that cars could not park on both sides of the road, residents overcame the problem simply (if perhaps, illegally?) by parking their cars on the pavement. This informal arrangement resulted in the width of the street being reduced to the width of one car. However, this had no adverse effect, in that there was sufficient room on the pavement to allow pedestrians to pass. There were also enough passing places on the street to allow cars to travel in opposite directions. Ten years later, however, things had changed. There were more cars on the street, which resulted in fewer passing places, and often, none. The street was often gridlocked and there was illegal parking on street corners. Sometimes parked cars would encroach on the pavement to such an extent that pedestrians could not get past. The parking was illegal. However, police did not have the resources to enforce the relevant parking legislation. For Fisher, the parking problem constituted what Hardin Garrett described, in 1968, as the ‘tragedy of the commons’. In the instant case, the tragedy consisted of the over-use of a public good, namely, parking on a public road. For Fisher, her, ‘doorstep problem underlined the finite capacity of the physical environment, and also its limited resources. The finite nature of the Earth’s carrying capacity is often invisible, and only appears through scientific study. Whereas environmental problems may take different forms (whether such problems take the form of congested car parking in east Oxford or deforestation in the Amazon) they are all inter-connected. Environmental problems are how we live together’. For the author, the most effective way to deal with environmental problems is through the medium of environmental law, which she describes as the most legitimate and staple medium to achieve this purpose. Fisher then goes on to examine the substance of environmental law, which, for her, is made up of many things, ranging from multilateral international treaties to national legislation. While the bulk of environmental law takes the form of legislation, policies, regulatory strategies and other forms of law all have legal implications.
To the delight of the reviewer, Fisher devotes a chapter to the history of environmental law. She commences her sketch of the development of the law, with reference to the regulation of hunting in Imperial China, laws governing rubbish and noxious industries in Ancient Rome and the Forest Charter of 1217, which governed management of the King’s Forests. The learned author proceeds on her historical sojourn, with a discussion of the development of the law during the nineteenth century. It was during this era, that modern environmental law was founded. The passing of the Nuisance Removal Acts in the 1840s and 1850s and also the Public Health Act 1848 were largely prompted by the myth that the much-dreaded cholera (which afflicted the UK in waves during the Victorian era) was caused by the odours which emanated from organic material, such as rubbish. However, the author observes that pollution was not only a physical thing, but also a cultural thing. The passing of the 1848 Act was a first important step in legislative intervention. However, it was doomed to fail, since it was based on centralised Benthamite utilitarian logic, which was anathema to the established ideas of decentralised English government. After quoting Rev Charles Kingsley’s Water Babies, to the effect that it pays better to let substances run to refuse than to use every product of manufacture, Fisher observes that pollution went hand-in-hand with a particular strain of Victorian capitalism, which not only had implications for the environment, but also for society. The problem was compounded by the fact that environmental legislation was not effectively enforced, because local authorities were small in size and had limited resources.
The other front where environmental law developed was in relation to the natural landscape. Both in the UK and the US, a nature conservation movement developed. Here the focus was not so much on human health, but rather on the relationship between the natural environment and well-being. In Australia in 1878, the then colony of New South Wales created the first Australian National Park. Furthermore, the latter half of the nineteenth century saw the promotion of the concept of the garden cities, which promised the working classes a better way of life. The twentieth century witnessed the development of town planning and architecture throughout the world. However, the rebuilding of cities after World War II meant that most European countries needed to develop new town-planning regimes which reconciled urgent housing needs with quality of life. Likewise, serious environmental problems such as the London Smog disaster of 1952 resulted in the Clean Air Act 1956.
International law was also ‘on the move’ during the twentieth century as a response to environmental problems which did not remain within national borders. From the early 1940s, international agreements were signed in relation to whaling (1946), oil pollution (1954) and fishing (1958).
Fisher goes on to remind us that, during the 1960s, a range of new social movements emerged in Western democracies, all of which challenged the authority of governing institutions. Environmentalism emerged alongside other movements, including those of the civil rights and feminism. This era also saw legal and political agitation. Rachel Carson’s Silent Spring (1962) drew attention to the environmental and human health impact of chemical use.
In the 1980s, a more global approach to environmental law was being transformed. A potent catalyst for bringing about this change was the World Commission on Environment and Development’s 1987 Report Our Common Future. This put forward the idea of sustainable development which ‘meets the needs of the present without compromising the needs of future generations to meet their own needs’. Fisher concludes her historical account of the development of environmental law by stating that the history of environmental law has been a history of political imagination.
In a chapter, rather quaintly titled ‘Expanding legal imagination’ the author takes a brief look at the ‘fragmentation’ or piecemeal development of international environmental law. She regards the various treaties between nations as an example of such fragmentation. These treaties are, essentially, ‘knee-jerk’ reactions to quite different environmental problems. Attention is drawn to so-called ‘soft law’, that is to say environmental obligations which contain non-binding obligations. The author attributes these to states being unwilling to forfeit their own sovereignty and cites the Paris Agreement of 2015 on climate change as an example. Fisher then goes on to examine the law of nuisance. Here, she underlines the fact that nuisance law is not particularly effective in addressing large-scale pollution caused by multiple polluters. It is largely reactive in nature, so can only be invoked after a nuisance has come into existence. The law relating to statutory nuisance has similar limitations.
As far as criminal law is concerned, the author suggests that the logic of dealing with environmental problems is understood as being distinct from established ideas of criminal responsibility. However, in sharp contrast to both the law of nuisance and criminal law is environmental impact assessment (EIA) which is proactive in nature. Here, the author observes that, whereas the subject has generated a plethora of case law, EIA is symbolic, in that it sends out a signal that the state has decided that a particular project requires extra scrutiny. Finally, the chapter concludes with the issue of standing, in relation to judicial review. She notes that the courts now display a more generous approach in allowing individuals to invoke judicial review as a means of redress.
Fisher then proceeds to address the subject of nation states. She notes, rather laconically that, in contrast to other states, in the UK, there is less emphasis on the articulation of legal doctrine and more about the articulation of disputes. In the author’s view, this approach has led to a paucity of ‘rich case law’.
The author goes on to emphasise the importance of the enforcement of environmental law, in terms of assessing its success. Effective enforcement requires adequate resources, of course. Moreover, the efficacy of regulation depends on public engagement. Indeed, this precept was acknowledged, in the Aarhus Convention. Fisher notes that public participation features quite prominently in the EIA regime.
In the current university climate, with its focus on the Research Excellence Framework, academics are often discouraged from writing introductory works of the type which Fisher has produced. However, in some ways, to write such a work is more difficult than writing a ‘learned’ peer-reviewed article. To the reviewer’s knowledge, this is the first book of its kind in the UK. It adopts an holistic approach to environmental law and, in so doing, is corrective of a rather narrow ‘black-letter’ approach to the subject. The book is also clearly written in a user-friendly style and will prove its worth, not simply to the student, but also to the practitioner and academic. The author, therefore, should be warmly congratulated for providing us with a most useful text.