This book argues for a reframing of environmental law. It starts from the premise that all environmental issues confront lawmakers as emergencies. Environmental issues pose a fundamental challenge to law because it is impossible to reliably predict which issues contain the possibility of an emergency and what to do in response to such an unforeseen event. These features undermine the conventional understanding of the rule of law. This book argues that approaching environmental issues from the emergency perspective leads us to an understanding of the rule of law that requires public justification. This requirement recentres the debates in environmental law around the question of why governance under the rule of law is something worth having in the environmental context. It elaborates what the rule of law requires of decision-makers in light of our ever-present vulnerability to catastrophic environmental harm. Controversial, compelling and above all timely, this book presents an important new perspective on environmental law.
Jocelyn Stacey is Assistant Professor at the Peter A. Allard School of Law at the University of British Columbia.
Introduction I. Methodology, Terminology and Context II. Outline of the Book Part I: The Environmental Emergency 1. The Concept of the Environmental Emergency I. The Environmental Emergency II. Failing Schmitt's Challenge III. The Formal Conception of the Rule of Law IV. Conclusion 2. Environmental Reform: The Problem of Discretion in Environmental Law I. The Environmental Reform Position II. Black and Grey Holes in Canadian Environmental Law III. Impoverished Environmental Reform Solutions IV. Conclusion 3. Environmental Governance: The Problem of Law in Environmental Law I. Old and New Governance II. Three Examples of Environmental Governance III. Reclaiming the Rule of Law IV. Conclusion Part II: Responding to the Environmental Emergency 4. The Requirement of Public Justification I. Responding to Schmitt's Challenge II. Public Justification: A Democratic Conception of the Rule of Law III. Conclusion 5. Institutional Design: Reforming Forest Practices I. The Institutional Dimensions of Public Justification II. The Forest Practices Board and the Mountain Pine Beetle Response III. The Forest Practices Board and Its Governance Response IV. Conclusion 6. Pipelines and Principles: Reasonableness and Fairness in Environmental Law I. The Pipelines, the NEB and Their Problems II. In Defence of Environmental Principles III. Publicly Justifying the Pipelines 7 IV. Conclusion 7. Reasoning Adequately: Wind Turbine Risks and Benefits I. The Confluence of Environmental Factors in Wind Turbine Development II. The Method and Purpose of Reasonableness III. Reasoning Adequately about Wind Turbine Approvals IV. Conclusion 8. The Rule of Law and the Right to a Healthy Environment I. The Case for a Charter Right to a Healthy Environment II. Environmental Protection and Section 7 Adjudication III. Common Law Constitutional Rights Adjudication IV. Conclusion