Environmental Law

Environmental Law Universityof Stirling
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Environmental law has presented a number of difficulties to lawyers and scholars alike. The
main difficulty seems to be that there is no comprehensive definition that defines the subject;1
thus resulting in it being argued that the boundaries of the subject are not particularly well
defined;2 although it certainly seems to be obvious, in that it is the law relating to
environmental problems. Nevertheless, this ‘obvious’ intention does not provide enough
information, and this has caused scholars to have divided opinions on what this
comprehensive definition of environmental law ought to be. This is not helped by the fact that
organisations differ on exactly what the environment is, and, as John Barry stated, this is a
difficult word to define. It is generally considered to be a phrase which has no singular
definition as it is a relational concept.3 Although the Environmental Protection Act 1990
(hereinafter referred to as EPA) seems to be fairly succinct:
“…all, or any, of the following media, namely, the air, water and land; and the medium of air
includes the air within buildings and the air within other natural or man-made structures
above or below the ground.”4
But the Environmental Management Standard give the impression of involving a higher range
of diversities,5 which more so correlates with the European Commission who appear to
undertake a more scientific approach.6
1 Elizabeth Fisher and others, Environmental Law: Text, Cases and Materials (5th end, Oxford University Press
2013) 6
2 See Zyygmunt Plater, Environmental Law and Three Economies: Navigatinga SprawlingField of Study,
Practice,and Societal Governance in which Everything is Connected to Everything Else [1999] 23(12) Harvard
Environmental Law Review 136; as found in,Stuart Bell and Donald McGillivray,Environmental Law (6th edn,
Oxford University Press 2006) 4
3 John Barry, Environment and Social Theory (Routledge Introductions to Environment: Environment and
Society Texts) (2nd edn, Routledge 2006) 11
4 Environmental Protection Act 1990 s 1(1); as found in,Stuart Bell and others, Environmental Law (8th edn,
Oxford University Press 2013) 7
5 “…surroundings in which an organisation operates including air, water, land, natural resources, flora, fauna,
humans and their interrelation. Surroundings in this context extend from within the organisation to the global
system.” ISO 14001,‘ISO and the Environment’[2012] 44 (8) Environmental Management 2; as found in,Stuart
Bell and others, Environmental Law (8th edn, Oxford University Press 2013) 8
6 “…the combination of elements whose complex interrelationships make up the settings, the surroundings and
the conditions of life of the individual and of society, as they are or as they are felt.” FirstEnvironmental Action

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If conclusions cannot be established as to a concise definition of the ‘environment’ then it is
arguably impossible to establish a clear explanation of ‘environmental law’; hence why
scholars have adopted three different perspectives on what environmental law should be
conceived as. These perceptions shall be individually evaluated and the difficulties that
scholars face in developing the discipline of environmental law will be analysed in order to
account as to whether it is possible to make advancements, with a lack of inclusive definition,
in this field.
One way of defining environmental law is to associate it with the laws relating to
environmental protection that are apparent in each individual jurisdiction.7 On this definition,
environmental law consists of UK statutes, delegated legislation,8 EU legal instruments,9
policies and case law concerned with regulating pollution, environmental quality, and
biodiversity conservation.10 So, for example, assuming a descriptive definition is undertaken,
section 13(1) of the EPA11 would be undertaken as law; even though this is at face-value and
there is no rebuttal of any external factors comprehending a breach of this. This point also
shows how environmental law has changed over the years, therefore making it difficult to
hypothesise the ‘law’ because the idea of introducing protection for its contribution to
biodiversity is a modern entity. Traditionally, law instruments, such as the one mentioned in
Programme 1973-76;see, Alan Galpin, Dictionary of Environment and SustainableDevelopment (1st edn,
Wiley,1966) 58; as found in,Stuart Bell and others, Environmental Law (8th edn, Oxford University Press 2013)
8
7 Elizabeth Fisher and others, Environmental Law: Text, Cases and Materials (5th edn, Oxford University Press
2013) 8
8 Law made by an executive authority under powers given to them by primary legislation in order to
implement and administer the requirements of that primary legislation
9 Any formally executed written document that can be formally attributed to its author.
10 Biodiversity conservation refers to the protection of all variety and variability of lifeon Earth. cf (6-9) as
found in, Elizabeth Fisher and others, Environmental Law: Text Cases and Materials (5th edn,Oxford University
Press 2013) 6
11 If the enforcingauthority is of the opinion thatthe person carryingon a prescribed process under an
authorisation iscontraveningany condition of the authorisation,or is likely to contravene any such condition,
the authority may serve on hima notice (“an enforcement notice”). Environmental Protection Act 1990 s 13 (1)

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s13 (1) of the EPA,12 were only enforced due to interferences with someone’s property – not
as a control for protection of biodiversity. Nevertheless, this approach is arguably the most
appealing as its simple fashion of defining the field clearly outlines any boundaries; which is
in opposition with Plater’s statement about lack of boundary definition.13 However, the
apparent simplicity of this method of definition also has a number of problems. In particular,
it shows real problems in applying boundaries that surround the subject in order to establish
its range of possibilities. These problems can be divided in to two sub-problems, the
problems arising from the definition of ‘law’; and those forming the definition of the
‘environment.’ Firstly, in order to define law, there are a number of issues that need to be
deliberated, it is not as simple as learning a single statute. A lot of environmental law is in the
form of delegated legislation,14 so an environmental lawyer must have knowledge on an
expansive range of legal material. Another problem is the fact that it is unclear what type of
‘instruments’15 are included in the definition of ‘law’ as there is a substantial amount of
importance played by policies and regulatory strategies.16 Similarly, governance
frameworks17 also play a substantial role in administering the guidelines of environmental
quality. These gaps in the field clearly raise the question as to exactly what the ‘law’ is in
environmental law. This highlights many scopes in the inquiry; for example, a major part of
this is due to the fact that environmental problems are regulated through policy, governance
networks,18 and a range of regulatory strategies that are not conventionally legal.19 By
12 Environmental Protection Act s 13 (1)
13 Zyygmunt Plater,Environmental Law and Three Economies: Navigatinga SprawlingField of Study, Practice,
and Societal Governance in which Everything is Connected to Everything Else [1999] 23(12) Harvard
Environmental Law Review 136
14 cf (n7)
15 It is also worth notingat this point that there are substantial differences between the environmental lawof
England, Scotland,Wales and Northern Ireland.
2013) 7
17 The action,manner, or system of governing.
18 Simply an incorporated government group.
2013) 8

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implementing this and focussing on a purely simplistic definition is limited; hence why James
Thornton believes the United Kingdom is struggling to progress in environmental law as
dramatically as other countries.
We were simply told that action to enforce the current law was unnecessary because our
executive would take care of it in its own sweet time, 2030 at the earliest. Forget for a
moment the impact on human health of air pollution remaining at dangerously high levels for
decades after the deadline. Forget for a moment this was environmental law. This could be
securities law, or contract law, public or private law. 20
Another way to define environmental law is to define it in the terms of the purpose that the
law is intended to be used for, or to achieve.21 Essentially, this means environmental law is
more of a political and social program that is simply executed through the law. This as a
useful entity in defining environmental law as it highlights the fact that the majority of
environmental law is a product of ethics, and/or politics. As aforementioned, environmental
law can be understood in a historical sense as different eras,22 reflect environmentalism and
environmental policy.23 Hence, this definition has developed as an outright response to the
critics whom are under the impression that environmental law is extremely lacking in
necessary elements.24 This purposive definition also gives the sense that it is necessary to
understand the justification behind the laws in order to be able to evaluate them
substantially.25 Unlike with a descriptive approach, the purposive definition undertakes a
20 James Thornton, 'Can We Catch Up?' [2016] 92(38) How the UK is Falling Behind on Environmental Law 46
21 The purpose may be an environmental policy (this refers to the commitment of an organisation to the laws,
regulations and other policy mechanisms concerningenvironmental issues),or a particula renvironmental
outcome (such as the prevention of pollution or some form of environmental degradation). Elizabeth Fisher
and others, Environmental Law: Text, Cases and Materials (5th edn Oxford University Press 2013) 9
22 As compared to the likes of criminal lawwhich areless influenced by external factors,such as social and
political.
23 cf (n11-12)
24 Obviously issues such aspollution isseen of much higher regard now as compared to 1950, for example.
25 Elizabeth Fisher and others, Environmental Law: Text, Cases and Materials (5th edn Oxford University Press
2013) 9

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judgemental classification of the field and looks to explore the necessity and reason behind
every introduction; instead of simply accepting each at face-value and disregarding its
purpose. However, that is where the purposive definition gaining an advantage over the
descriptive one end as there are many disadvantages to this definition on environmental law.
In particular, these definitions are under-inclusive.26 This can be seen from a number of
dimensions. Firstly, it interprets the concept of environmental law as external to the law, thus
rendering the law largely instrumental.27 Obviously ‘law’ is not just a written set of rules that
must be abided by; it is actually a cultural replete28 with a distinct body of reasoning, ideas
and processes. 29 Also note that, whilst Lord Scarman’s comments about environmental law
were valid in 1974, they are no longer:
“But the truth has to be faced. The judicial development of the law, vigorous and imaginative
though it has been, has been found wanting. Tied to concepts of property, possession, and
fault, the judges have been unable by their own strength to break out of the cabin of the
common law and tackle the broad problems of land use in an industrial and urbanises
society.” […]30
These ideas and processes are supplemented by a large amount of judiciously coherent case
law, enveloped in which there is more to the judges reasoning behind these than simply
looking to protect the environment or to create a logical interpretation of pre-implemented
statutes, but also the forming of legal principles and the development of innovative legal
26 In the sensethat they do not includeall theservices or items normally expected or required. Elizabeth Fisher
and others, Environmental Law: Text, Cases and Materials (5th edn Oxford University Press 2013) 9
27 As in it simply serves as a means to an aim; and has no actual future outlined once implemented.
28 A filled or well-supplied entity.
2013) 9
30 “…the challenge appears at this moment of time, to be likely to overwhelm the law. As in the area of the
social challenge, so also the guarding of our environment has been found to require an activist, intrusive role to
be played by the executive arm of government.” LeslieScarman, English Law – The New Dimension (4th edn
Stevens and Sons 1974) 53; see, Fothergill v Monarch Airlines Ltd [1981] AC 251 (HL) (Scarman L)

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theories. By describing environmental law in purposive terms, these developments can be
overlooked. Secondly, it seems to suggest that the role of environmental law and an
environmental lawyer is to enhance environmental protection or to pursue environmental
ethic.31 This places, arguably, a stereotype on environmental lawyers and also ignored the
fact that, as simplistic and easy as it is to say that, most of environmental law does concern
environmental protection, that does not mean the practice of this field of law is only about
preventing environmental harm. It must be noted that many other the work of environmental
lawyers stretches far beyond this stereotype.32 The job of an environmental lawyer is not
simply the advertising of a new principle; but largely involves contributing to disputes that
are entrenched in multifaceted legal and socio-legal situations.33
Finally, there is a danger that the purposive approach to defining environmental law ignores
the fact that there is considerable disagreement over the nature and definition of
environmental policy.34 It tends to simply concentrate on describing it as a fulfilment for the
purpose under-which the legislature wants accomplished.35 The conflicts that are conjured up
during debates on environmental law are not only between those who have strong opinions on
the protection of the environment and those who do not, there are a number of different
considerations on what protection of the environment actually means. For example, numerous
people aim to promote sustainable development, but that terminology has a number of
different meanings – ranging from a minor adjustment to industrial activity to a radical
overhaul of the whole of society. Therefore, clearly, environmental law is the frontline of
2013) 10
32 Such as responsibilities of the State, privaterights and other interests.
33 Although not cited in as such,this is apparentin, Alexander Gillespie,'Protected Areas in International
Environmental Law' [2007] 21(3) Journal of Environmental Law 513-527
34 This refers to the commitment of an organisation to the laws,regulations and other policy mechanisms
concerningenvironmental issues.Elizabeth Fisher and others,Environmental Law: Text, Cases and Materials
(5th edn Oxford University Press 2013) 10
35 Whether this accomplishmentinvolves environmental justice,sustainability or pollution control,for
example.

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dispute and perspectives on the protection of the environment. A purposive account can
accommodate for all these diametrically opposing perspectives but there is always that risk of
the resulting factor being environmental law treated as just politics in another guise.36
A third approach to defining environmental law is to establish a stronger connection with the
relevant literature. This approach reaches to explain and come up with an alternative
justification for the problems with the purposive approach, and is most commonly known as
the jurisprudential methodology. This approach defines environmental law as a collection of
a series of legal principles.37 The method takes it jurisprudential dynamics from its ability to
endorse legal reliability into the subject, and is applauded by Tim Jewell and Jenny Steele,
who state:
Current developments would seem to pull towards a more ‘integrated’ approach to the
subject, and to suggest the development of environmental law as a distinctive field with
distinctive subject-matter. From such a point of view, the type of analysis adopted in this
collection – which emphasises the specific qualities of particular (perhaps even traditional)
legal framework and sources – will require some explanation.38
This view adopts a true reflection on the importance of applying the ‘law’ to environmental
problems and this results in more problems for scholars to prioritise in their attempt to
develop the field. Another jurisprudential approach can be seen in the works of Sean Coyle
and Karen Morrow; although taking from a property law perspective, it still defines the
subject at hand:
36 An external form, appearance,or manner of presentation, typically concealingthetrue nature of something.
37As opposed to a collection of laws concerned with environmental protection and an instrument of policy.
Elizabeth Fisher and others, Environmental Law: Text, Cases and Materials (5th edn Oxford University Press
2013) 11
38 Tim Jewell and Jenny Steele, Law in Environmental Decision-Making:National,European,and International
Perspectives (2nd edn Oxford University Press 1998) 3

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Environmental law, viewed as a series of arguments concerning responsibility and justice,
might be thought of as the product of a sustained reflection upon the relationship between
property, rights and nature: a body of philosophical speculation which has its roots in the
deliberations of the natural rights theorists of the seventeenth century. For the natural
lawyers, property rights are imbued with a moral (and religious) significance which shapes
and refines their specific characteristics on the plane of juristic thinking. Within the natural
rights tradition, property was thought of as central to the nature and political fabric of the
policy itself.39
This is an interesting argument in the sense that Coyle and Morrow are trying to show that a
section of thought within environmental law can be recognised and that it has a long and
complicated historical network. Nevertheless, it is not as simple to say that Coyle and
Morrow are attempting to prove that environmental law is well defined and has a
comprehensive set of legal principles which would oppose the aforementioned definitions to
the limit; they are simply saying that the legal foundations of this field of study are extremely
well entrenched. By taking into consideration the opinion of the environmental lawyer, the
jurisprudential method of defining the field is a very attractive one as it affirms the subject as
a firm disciplined one and undermines the opinion that it is of a ‘second-class’ due to having
no jurisprudential content. Nevertheless, as with the previous definitions, problems start to
arise. By taking into account the views of Jewell and Steele,40 and Coyle and Morrow,41 the
jurisprudential content does not exactly stand out. The comments of Nicholas De Sadeleer
offer another input into the jurisprudential argument, however:
39 Sean Coyle and Karen Morrow, The Philosophical Foundations of Environmental Law: Property, Rights and
Nature (9th edn Hart Publishing 2004) 212
40 Tim Jewell and Jenny Steele, Law in Environmental Decision-Making:National,European,and International
Perspectives (2nd edn Oxford University Press 1998) 3
41 Sean Coyle and Karen Morrow, The Philosophical Foundations of Environmental Law: Property, Rights and
Nature (9th edn Hart Publishing 2004) 212

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In effect, a new legal model that reflects post-modern conditions is replacing the classical law
of modern societies. Under pressure from a globalising economy, the State has lost its
monopolist role as a producer of norms for multilateral and supranational institutions. The
nation-state and even the system of states may either be in crisis or heading towards crisis in
the face of the increasing seriousness of many environmental problems. In addition, law-
makers have had to renounce general legal formulations and turn to more flexible modes of
action, better adapted to dynamic and social realities, in order to ensure the effectiveness of
public policies. Similarly, they have had to abandon simplicity, systemisation, and coherence
so that legal norms might respond more rapidly to urgent and complex social needs. […]42
This is essentially claiming, that alongside the purposive approach, one must be aware that
what is considered to be functional environmental law is more affected by what the
interpreter wants it to be rather than what it is.
Another problem is that there may be a danger that a jurisprudential approach to defining
environmental law overemphasises the unique nature of the subject.43 By examining Pater
Cane’s view it is established how it is believed that more importance needs to be laid on the
compensation for harm instead of the punishment for breaches, as in contract and property
law, to name but a few:
“My basic point is in thinking about environmental liability law we should aim first and
foremost to develop a fair and efficient system of compensation for harm inflicted. We should
42 Finally,they have had to relinquish constraintin favour of a flexibleand decentralised systemof rule-
making, based on regulatory flexibility.Nicholasde Sadeleer, Environmental Principles:FromPrincipleSlogans
to Legal Rules (12th edn Oxford University Press 2002) 233
2013) 12

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not complicate this compensation goal by trying simultaneously to punish polluters or to
reduce pollution.” […]44
Cane’s argument takes an interesting approach to studying the jurisprudential approach to
environmental law as he emphasises more so the significance of established legal doctrines as
a case for how environmental issues should be treated by the legal system. Minimally, it
highlights how dangerous it potentially could be in taking this approach as a form of defining
the subject and if taken seriously also weakens the purposive approach.
In conclusion, by examining the different ways of defining environmental law, it is clear that
each one presents a number of difficulties scholars face in developing the discipline. Due to
the likes of being unable to form boundaries which results in definitions being disputed and
no comprehensive result pursuing as ‘fact’ which in turn denies any approach of
development. As debates continue as to the definition of ‘environment’ and ‘law’ then it is
difficult to say whether this field will face any advancements in the near future; and with this,
arguable, ‘second-class’ discipline, if taken out-with a jurisprudential approach, struggling to
conjure any strict margins to envelope progress then, as mentioned by James Thornton,45 the
United Kingdom is, in fact, falling behind on the environmental law scale.
44 “This is perfectly acceptable and, indeed helpful, so long as these new functional legal categories are used
only as frameworks for organising knowledge and thinking aboutparticular social problems.” Peter Cane, 'Are
Environmental Harms Special' [2001] 13(1) Journal of Environmental Law 13-20
45 James Thornton, 'Can We Catch Up?' [2016] 92(38) How the UK is FallingBehind on Environmental Law 46

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Bibliography
Legislation and Case Law
 Environmental Protection Act 1990
 Fothergill v Monarch Airlines Ltd [1981] AC 251 (HL) (Scarman L)
Journals
 Cane P, 'Are Environmental Harms Special' [2001] 13(1) Journal of Environmental
Law
 Gillespie A, 'Protected Areas in International Environmental Law' [2007] 21(3)
Journal of Environmental Law
 ISO 14001, ‘ISO and the Environment’ [2012] 44 (8) Environmental Management
 Plater Z, Environmental Law and Three Economies: Navigating a Sprawling Field of
Study, Practice, and Societal Governance in which Everything is Connected to
Everything Else [1999] 23(12) Harvard Environmental Law Review 136; as found in,
Stuart Bell and Donald McGillivray, Environmental Law (6th edn, Oxford University
Press 2006)
 Thornton J, 'Can We Catch Up?' [2016] 92(38) How the UK is Falling Behind on
Environmental Law
Books
 Barry J, Environment and Social Theory (Routledge Introductions to Environment:
Environment and Society Texts) (2nd edn, Routledge 2006)
 Bell S and McGillivray D, Environmental Law (6th edn, Oxford University Press
2006)
 Bell S and others, Environmental Law (8th edn, Oxford University Press 2013)

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 Coyle S and Morrow K, The Philosophical Foundations of Environmental Law:
Property, Rights and Nature (9th edn Hart Publishing 2004)
 De Sadeleer N, Environmental Principles: From Principle Slogans to Legal Rules
(12th edn Oxford University Press 2002)
 Fisher E and others, Environmental Law: Text, Cases and Materials (5th end, Oxford
University Press 2013)
 Galpin A, Dictionary of Environment and Sustainable Development (1st edn, Wiley,
1966)
 Jewell T and Steele J, Law in Environmental Decision-Making: National, European,
and International Perspectives (2nd edn Oxford University Press 1998)
 Scarman L, English Law – The New Dimension (4th edn Stevens and Sons 1974)

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