As an academic lawyer working on environmental law in Scotland, I have found that the last few years have involved very little thinking about the environment itself. Instead, the central issue dominating my time has been the United Kingdom’s withdrawal from the European Union and the impact of this on the legal and governance structures. As such, my work has been almost entirely focused on matters related to constitutional and administrative law.
This may come as no surprise to many, since environmental law is largely based on regulatory matters, and hence administrative law. However, in past years this diet has generally been more varied, with aspects of criminal, tort, and property law, creating the opportunity to dabble in different areas. But the recent dominance of structural issues has squeezed out attention on other aspects, including the substantive content of the underlying laws themselves.
This situation appears to be doubly true for my colleagues in the United States. Based on the overwhelming majority of interactions I’ve had with U.S.-based professors and law students, it appears that although climate and the environment are the substantive issues of concern, the real legal focus in the U.S. has been almost entirely on issues of administrative law. Further, it is not simply about how discretion is exercised by agencies (where environmental considerations might come into play), but about whether an agency has the power to do anything at all, how state and federal competences fit together, and where the Supreme Court will draw the limits of any power. It takes knowledge not of environmental matters but of U.S. constitutional, administrative, and procedural law to follow what is happening.
This difference between what most people may think of as “environmental law” and the reality of environmental practice reveals the big challenge for environmental lawyers, especially academics, to draw out how and why these matters are connected. It is understandably difficult for the public to appreciate how the mechanics behind administrative agencies drive their ability to make progress on climate and environmental issues. Similarly, very few law students are passionate about the procedures of administrative law in the same way that they may be passionate about environmental issues. Yet somehow we need to help these future environmental lawyers and leaders see that the hard work in reducing carbon emissions and pollution will be done not at grand international conferences, but through the cumulative effect of the work agencies do every day.
The transformative change required to meet the climate and biodiversity crises relies largely on work that is not glamourous. It demands legal structures through which everyone in society can be nudged, and, if necessary forced, to change their behaviour. That, in turn, requires governments and public bodies with legal powers to make use of the regulatory levers that will achieve this. This is where a lot of environmental work needs to focus, requiring attention on ensuring that the governmental structures can and do deliver the changes we need and can be held to account for their choices and (in)actions.
Efficient and effective administration is a means to an end, not at end in itself, but the importance of this area is something we need to reflect from the start for those students interested in environmental law and policy. We must explain to potential environmental champions that the path to a better long-term future for society may lie in mastering the labyrinth of administrative procedures and that this is where the rhetoric of sustainability can become reality. To this end, perhaps we should consider swapping out the pictures on the covers of the environmental law textbooks of national parks, scenic views, and toxic dumps with administrative law forms and dockets. Likewise, we could illustrate on the covers of administrative law texts the real environmental and other gains that can be won—demonstrating that constitutional and administrative law are themselves at the heart of environmental law in a very real way.
