In taking stock of environmental and administrative scholarship for the future, one area in need of investigation is whether expert agencies are actually given the authority and tools they need to carry out their delegated assignments. We know that the political branches and courts often impose constraints on agency experts in ways that are likely to compromise the agencies’ ability to fulfill their statutory assignments. But we have little understanding of how many constraints there are, how they operate, or how to think of them more generally. In our contribution to this Special Issue, we spotlight the importance of this topic for regulatory studies in the USA and abroad by mapping out the multi-faceted ways that agencies in the USA are constrained from carrying out their delegated assignments. We discover numerous and consequential constraints that are both invisible and undermine the agencies’ ability to carry out their statutory mandates.
{"title":"U.S. Agency Experts in Shackles: The Quest for Information","authors":"T. McGarity, Wendy E. Wagner","doi":"10.1093/jel/eqad005","DOIUrl":"https://doi.org/10.1093/jel/eqad005","url":null,"abstract":"\u0000 In taking stock of environmental and administrative scholarship for the future, one area in need of investigation is whether expert agencies are actually given the authority and tools they need to carry out their delegated assignments. We know that the political branches and courts often impose constraints on agency experts in ways that are likely to compromise the agencies’ ability to fulfill their statutory assignments. But we have little understanding of how many constraints there are, how they operate, or how to think of them more generally. In our contribution to this Special Issue, we spotlight the importance of this topic for regulatory studies in the USA and abroad by mapping out the multi-faceted ways that agencies in the USA are constrained from carrying out their delegated assignments. We discover numerous and consequential constraints that are both invisible and undermine the agencies’ ability to carry out their statutory mandates.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":1.9,"publicationDate":"2023-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46650659","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This article considers the use of Landscape Enterprise Networks (LENs) as an innovative model for developing collaborative landscape-scale environmental management. It does so by relying on case studies to present LENs as a model that can be successfully used to create, and then manage, the market for ecosystem services provided by multi-functional landscapes. LENs can, for example, be used to address diffuse water pollution and to establish landscape-scale biodiversity and pollution ‘offsets’ through the creation of new wetlands or large-scale rewilding initiatives. The analysis presented here concludes that LENs offers an imaginative and valuable tool for landscape-level environmental management but that changes will be needed in the legal framework for property rights and development planning if it is to fulfill its considerable potential. The governance arrangements for functioning LENs will also need refinement to introduce greater transparency, strategic direction and accountability to their future development.
{"title":"Implementing Landscape-scale Environmental Management: Landscape Enterprise Networks","authors":"Christopher Rodgers, Helen Kendall","doi":"10.1093/jel/eqac020","DOIUrl":"https://doi.org/10.1093/jel/eqac020","url":null,"abstract":"Abstract This article considers the use of Landscape Enterprise Networks (LENs) as an innovative model for developing collaborative landscape-scale environmental management. It does so by relying on case studies to present LENs as a model that can be successfully used to create, and then manage, the market for ecosystem services provided by multi-functional landscapes. LENs can, for example, be used to address diffuse water pollution and to establish landscape-scale biodiversity and pollution ‘offsets’ through the creation of new wetlands or large-scale rewilding initiatives. The analysis presented here concludes that LENs offers an imaginative and valuable tool for landscape-level environmental management but that changes will be needed in the legal framework for property rights and development planning if it is to fulfill its considerable potential. The governance arrangements for functioning LENs will also need refinement to introduce greater transparency, strategic direction and accountability to their future development.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134977409","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract In this commentary, the metaphor of craft is deployed to provide seven tips for legal scholars. These seven tips are forms of practical advice, which also raise questions about how legal scholarship is understood. These tips are based on the experience of editing the Journal of Environmental Law between 2012 and 2022. The seven tips are: producing legal scholarship takes time; don't get distracted from focusing on quality; read widely; know what you are trying to produce; fidelity to material matters; cherish refereeing and revision; and recognise the value of scholarly communities.
{"title":"Craft Matters: Seven Tips for Legal Scholars","authors":"Liz Fisher","doi":"10.1093/jel/eqad001","DOIUrl":"https://doi.org/10.1093/jel/eqad001","url":null,"abstract":"Abstract In this commentary, the metaphor of craft is deployed to provide seven tips for legal scholars. These seven tips are forms of practical advice, which also raise questions about how legal scholarship is understood. These tips are based on the experience of editing the Journal of Environmental Law between 2012 and 2022. The seven tips are: producing legal scholarship takes time; don't get distracted from focusing on quality; read widely; know what you are trying to produce; fidelity to material matters; cherish refereeing and revision; and recognise the value of scholarly communities.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-02-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135102157","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The rights guaranteed under the Aarhus Convention enable individuals and environmental non-governmental organisations (NGOs) to act to defend the environment in the public interest. In these tempestuous times, where environmental democracy faces unprecedented challenges, the Convention stands firmly as a beacon of hope to deliver better outcomes for the environment and to protect human rights. This short commentary identifies new significant developments within the Aarhus framework concerning the protection of environmental defenders, the impact of the pandemic and the application of the Convention during armed conflict. It also reflects briefly on the more general issue of implementation.
{"title":"A Brave New World: The Aarhus Convention in Tempestuous Times","authors":"Áine Ryall","doi":"10.1093/jel/eqac023","DOIUrl":"https://doi.org/10.1093/jel/eqac023","url":null,"abstract":"Abstract The rights guaranteed under the Aarhus Convention enable individuals and environmental non-governmental organisations (NGOs) to act to defend the environment in the public interest. In these tempestuous times, where environmental democracy faces unprecedented challenges, the Convention stands firmly as a beacon of hope to deliver better outcomes for the environment and to protect human rights. This short commentary identifies new significant developments within the Aarhus framework concerning the protection of environmental defenders, the impact of the pandemic and the application of the Convention during armed conflict. It also reflects briefly on the more general issue of implementation.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":"95 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135250692","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This article examines three constitutional environmental provisions and how they have been applied by courts in Europe in three climate cases from Norway, Germany and France. In each of these cases, directive principles, that is, constitutionally entrenched state obligations to protect social values, generally by enacting legislation, played a key role in judicial decisions regarding climate change mitigation. We engage with Lael K. Weis’s analytical framework on directive principles to clarify the allocation of institutional responsibility for climate change mitigation as applied in these three cases, and argue that clarifying these roles alleviates some of the criticism regarding the democratic legitimacy of judicial decision making on climate change. Importantly, while courts do not directly enforce these types of constitutional directive principles, they must adjudicate them. When courts interpret constitutionally mandated legislation in light of directive principles, they develop new constitutional environmental norms. While most scholarly analysis of environmental constitutionalism has focused on environmental rights, our examination confirms Weis’s thesis that directive principles aimed at legislatures are also important forms of environmental constitutionalism, and deserving of further attention.
本文考察了三个宪法环境条款，以及它们是如何在挪威、德国和法国的三个气候案件中被欧洲法院应用的。在这些案件中，指导性原则，即宪法规定的国家保护社会价值的义务，一般通过颁布立法，在有关减缓气候变化的司法裁决中发挥了关键作用。我们采用了Lael K. Weis关于指令原则的分析框架，以澄清在这三个案例中适用的减缓气候变化的机构责任分配，并认为澄清这些角色减轻了一些关于气候变化司法决策的民主合法性的批评。重要的是，虽然法院不直接执行这些类型的宪法指导原则，但它们必须对它们进行裁决。当法院根据指导原则解释宪法授权的立法时，它们就会制定新的宪法环境规范。虽然大多数关于环境宪政的学术分析都集中在环境权利上，但我们的研究证实了韦斯的论点，即针对立法机构的指导原则也是环境宪政的重要形式，值得进一步关注。
{"title":"Allocation of Institutional Responsibility for Climate Change Mitigation: Judicial Application of Constitutional Environmental Provisions in the European Climate Cases <i>Arctic Oil</i>, <i>Neubauer</i>, and <i>l’Affaire du siècle</i>","authors":"Agnes Hellner, Yaffa Epstein","doi":"10.1093/jel/eqac024","DOIUrl":"https://doi.org/10.1093/jel/eqac024","url":null,"abstract":"Abstract This article examines three constitutional environmental provisions and how they have been applied by courts in Europe in three climate cases from Norway, Germany and France. In each of these cases, directive principles, that is, constitutionally entrenched state obligations to protect social values, generally by enacting legislation, played a key role in judicial decisions regarding climate change mitigation. We engage with Lael K. Weis’s analytical framework on directive principles to clarify the allocation of institutional responsibility for climate change mitigation as applied in these three cases, and argue that clarifying these roles alleviates some of the criticism regarding the democratic legitimacy of judicial decision making on climate change. Importantly, while courts do not directly enforce these types of constitutional directive principles, they must adjudicate them. When courts interpret constitutionally mandated legislation in light of directive principles, they develop new constitutional environmental norms. While most scholarly analysis of environmental constitutionalism has focused on environmental rights, our examination confirms Weis’s thesis that directive principles aimed at legislatures are also important forms of environmental constitutionalism, and deserving of further attention.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":"38 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135788526","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The United States signed the United Nations Framework Convention on Climate Change in June of 1992. For nearly 30 years thereafter, Congress remained gridlocked and unable to pass significant climate change legislation. During that time, the executive branch was the main forum for the development of federal climate policy, forcing the Environmental Protection Agency (EPA) to creatively reinterpret 1970s legislation to deal with climate change. The situation changed in two crucial ways in 2022: The Supreme Court’s decision in West Virginia v. EPA reined in EPA’s authority, and Congress finally enacted major climate legislation in the form of a multi-billion dollar tax and spending bill. These two events will shape the future of US climate efforts.
{"title":"Recent Developments in U.S. Climate Law: Judicial Retrenchment and Congressional Action","authors":"Daniel A Farber","doi":"10.1093/jel/eqac025","DOIUrl":"https://doi.org/10.1093/jel/eqac025","url":null,"abstract":"Abstract The United States signed the United Nations Framework Convention on Climate Change in June of 1992. For nearly 30 years thereafter, Congress remained gridlocked and unable to pass significant climate change legislation. During that time, the executive branch was the main forum for the development of federal climate policy, forcing the Environmental Protection Agency (EPA) to creatively reinterpret 1970s legislation to deal with climate change. The situation changed in two crucial ways in 2022: The Supreme Court’s decision in West Virginia v. EPA reined in EPA’s authority, and Congress finally enacted major climate legislation in the form of a multi-billion dollar tax and spending bill. These two events will shape the future of US climate efforts.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135898229","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract An unexpected consequence of Brexit has been the creation under the Environment Act 2021 of a new public body, the Office for Environmental Protection (OEP). OEP is more than a watchdog body and has important functions in advising government on proposed new environmental law, reporting to Parliament on progress in meeting statutory targets and reviewing the implementation of environmental law. Its enforcement role relates to the environmental duties of government and public bodies. The procedures are a specialised form of judicial review but are designed to secure a constructive settlement before reaching court. OUP is a novel and important addition to Britain's structure of environmental governance.
{"title":"Breaking the Mould—Britain’s New Office for Environmental Protection","authors":"Richard Macrory","doi":"10.1093/jel/eqac019","DOIUrl":"https://doi.org/10.1093/jel/eqac019","url":null,"abstract":"Abstract An unexpected consequence of Brexit has been the creation under the Environment Act 2021 of a new public body, the Office for Environmental Protection (OEP). OEP is more than a watchdog body and has important functions in advising government on proposed new environmental law, reporting to Parliament on progress in meeting statutory targets and reviewing the implementation of environmental law. Its enforcement role relates to the environmental duties of government and public bodies. The procedures are a specialised form of judicial review but are designed to secure a constructive settlement before reaching court. OUP is a novel and important addition to Britain's structure of environmental governance.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135997409","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
No one can tell us—as individuals—how we should feel about environmental harm, be it upset at individual species loss, distress at systemic level change, or deeper existential angst. That universal truism applies as much to us, as scholars, as it does to us as world-citizens. Recognising that environmental harm is increasingly impacting lived experiences, this commentary both argues that we should not only reflect consciously on how this might affect our scholarship, but that we should proactively take steps to improve our mental health and self-care. Written collaboratively by an environmental lawyer and research clinical psychologists, the commentary concludes that acceptance of the challenges confronting us, and that it is all right to be anxious about them in our own lives, will not necessarily make our scholarship any better but it might allow us to avoid unhelpful, artificial, and potentially painful deep-seated, divisions within ourselves.
{"title":"Environmental Legal Research is Changing: Alternating Tenor/Terror of Scholarship, Despair and Self-Care","authors":"D. French, David L. Dawson, N. Golijani-Moghaddam","doi":"10.1093/jel/eqac022","DOIUrl":"https://doi.org/10.1093/jel/eqac022","url":null,"abstract":"\u0000 No one can tell us—as individuals—how we should feel about environmental harm, be it upset at individual species loss, distress at systemic level change, or deeper existential angst. That universal truism applies as much to us, as scholars, as it does to us as world-citizens. Recognising that environmental harm is increasingly impacting lived experiences, this commentary both argues that we should not only reflect consciously on how this might affect our scholarship, but that we should proactively take steps to improve our mental health and self-care. Written collaboratively by an environmental lawyer and research clinical psychologists, the commentary concludes that acceptance of the challenges confronting us, and that it is all right to be anxious about them in our own lives, will not necessarily make our scholarship any better but it might allow us to avoid unhelpful, artificial, and potentially painful deep-seated, divisions within ourselves.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":1.9,"publicationDate":"2022-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42982731","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Environment and Sustainable Development in the New Central Europe","authors":"Stephen Stec","doi":"10.1093/JEL/EQM030","DOIUrl":"https://doi.org/10.1093/JEL/EQM030","url":null,"abstract":"","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":"19 1","pages":"424-426"},"PeriodicalIF":1.9,"publicationDate":"2022-09-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/JEL/EQM030","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46683999","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Intergovernmental Panel on Climate Change Sixth Assessment Report (report) on mitigation of climate change brought greenhouse gas removals (GGRs) under the spotlight. The report relied on the use of GGRs in all models suggesting how to comply with the Paris Agreement’s temperature targets. The EU has adopted specific legislation to address one of the more technologically mature GGR methodologies—biochar—and its waste status dilemma. Here, biochar is analysed in more detail, focusing on the EU waste regime and the potential absolution of biochar from EU’s waste obligations. Additionally, the recently enacted Fertilising Products Regulation (EU/2019/1009) is investigated, and its approach to label biochar a fertilising product. Ultimately, this study identifies regulatory inconsistencies and shortfalls of EU law as pertains to biochar’s waste status, and recognises the need to establish a more comprehensive regulatory treatment of biochar that acknowledges its multifaceted nature, including helping the EU, and its member states to reach net zero.
{"title":"Waste, Fertilising Product, or Something Else? EU Regulation of Biochar","authors":"L. Strubelj","doi":"10.1093/jel/eqac013","DOIUrl":"https://doi.org/10.1093/jel/eqac013","url":null,"abstract":"\u0000 The Intergovernmental Panel on Climate Change Sixth Assessment Report (report) on mitigation of climate change brought greenhouse gas removals (GGRs) under the spotlight. The report relied on the use of GGRs in all models suggesting how to comply with the Paris Agreement’s temperature targets. The EU has adopted specific legislation to address one of the more technologically mature GGR methodologies—biochar—and its waste status dilemma. Here, biochar is analysed in more detail, focusing on the EU waste regime and the potential absolution of biochar from EU’s waste obligations. Additionally, the recently enacted Fertilising Products Regulation (EU/2019/1009) is investigated, and its approach to label biochar a fertilising product. Ultimately, this study identifies regulatory inconsistencies and shortfalls of EU law as pertains to biochar’s waste status, and recognises the need to establish a more comprehensive regulatory treatment of biochar that acknowledges its multifaceted nature, including helping the EU, and its member states to reach net zero.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":1.9,"publicationDate":"2022-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47955185","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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