The Oxford Handbook of Comparative Environmental Law (the Handbook or the book) provides wide-ranging, informative and welcome comparative approach to current environmental law. As outlined in the Handbook’s opening chapter, its two-fold purpose is, first, to provide a cartography of environmental law, along with its underlying logic, main arrangements and variations, and second, as a response the impact of human activity on the environment, to demonstrate that environmental law can be approached as a single overall technology.
The Handbook, to which 65 authors have contributed, consists of 51 well-organised chapters as well as tables of Cases (pp. xiii-xxxiii) and Legislation (pp. xxxv-lxxiii), and, in addition, a voluminous index (pp. 1185-1235). Apart from the two opening chapters, the Handbook is broken down into four rather large sections (Parts I to IV) focusing on countries, environmental problems, systems, and interactions. Framing the methodological approach and outlining the value of comparative environmental law, the Handbook’s two opening chapters, written by the editors, Lees and Viñuales, provide both a pedagogic and exceptionally informative approach to comparative law and its ties to environmental law scholarship, as well as providing the prerequisite for the Handbook’s comparative analysis.
In Chapter 1, entitled Comparative Environmental Law. Structuring a Field, Viñuales introduces the definition of environmental law, which he sees as “a set of legal arrangements deliberately – and sometimes reactively – used or developed to address specific or general problems arising from the impact of human activity on the natural and built environment.” A brief comparison to earlier environmental law studies follows, along with an overview of comparative law methodologies. This includes an account of the development of comparative law in the light of history, as well as a discussion of the advantages and disadvantages of the principal comparative methodological approaches (conceptual, functional, factual, legal formats, contextualists, and legal transplants). Viñuales clarifies, inter alia, that to a certain extent each of the approaches is used in the organisation of the Handbook into its four parts. Then Viñuales provides an interesting account of three methodological variations, which have seemingly influenced the Handbook’s approach and, to a varying degree, individual contributions. The first variation (bottom-up functionalism) highlights broad trends involving institutional organization, responsibility for environmental protection, and regulatory and preventive strategies (Lutz, and Gross and Scott). Based on the classification of environmental problems, the second variation (top-down functionalism) places an emphasis on analysis by distinguishing between private and public actions and focusing on the public organisation of the response (Tarlock and Tarak). The third variation (Robinson) (implicit functionalist approach) underscores four issues of importance for comparative environmental law research projects: (i) the jurisdictions that can be compared; (ii) the legal questions to be identified and compared; (iii) the avenues for the harmonization of environmental law systems; and (iv) the tools to locate and verify the information. Viñuales then moves on to introduce the methodological approach followed in the Handbook (Chapter 1.4), namely “(a) the identification, mapping, organization, and analysis of the building blocks of environmental law systems, with their many facets across jurisdictions, and (b) the unveiling of the overall architecture of environmental law as a single overall technology to govern the effects of human activity on the natural and built environments.” Viñuales describes four forms of environmental law system diversity to be addressed by the methodology of the Handbook. These are diversity across jurisdictions (Part I), diversity in the types of responses to common environmental problems (Part II), diversity of the underlying building blocks, including the underpinning of environmental law systems (Part III), and finally, diversity in the interaction between the building blocks and the legal system in which they are embedded, which includes interactions with public, private and criminal law, within legal systems and with private and public international law (Part IV). The methodological approach is further explained by using a figure (Figure 1.1 Overview of the Methodology), and a table (Figure 1.2 Architecture of Environmental Law Systems) where the Handbook’s approach is outlined in terms of the aspects addressed in each part of the Handbook: first, the analysis of different countries, second, responses to common problems, third, system components, and, fourth, interactions with the broader context.
In Chapter 2, titled, Value in Comparative Environmental Law – 3D Cartography and Analytical Description, Lees further explains the Handbook’s methodological approach and, inter alia, what steered its editing. First addressing Instrumentality (Chapter 2.2), Lees draws attention to several issues relating to law as a social institution creating and shifting powers. Second, she discusses Legal Culture (Chapter 2.3), pointing out several topics relating to the influence of legal culture on legal systems. Reflecting the spirit of the scholarly Zeitgeist in the context of the rule of law and constitutionalism, Lees draws attention to the necessity of acknowledging, firstly, that each legal system encompasses its own culture, and, secondly, that these cultures differ across and within jurisdictions. In the application of a comparative model approach, however, pitfalls must be avoided, and thus certain issues need to be considered. One such issue is the question of the transplantability of models “in toto” to another system. As Lees explains, despite the impossibility of translating outcomes into a different legal system, looking at models in any system is not useless, for the picture can be corrected by removing certain issues, inter alia, relating to internal practices and values. In Chapter 2.3, Lees tackles further how legal culture (broadly a set of attitudes and processes shaping the application of laws) has provided context in individual chapters of the book, e.g. when covering environmental principles, which is the topic of Part II. As part of legal culture, the attitude towards compliance and wider cultural approaches to the environment are the subject of Chapter 2.3.2.
Part I, titled Country Studies, containing chapters 3-18, provides studies from 15 states, namely Australia, Brazil, Canada, China, France, Germany, India, Indonesia, Japan, Mexico, Singapore, South Africa, South Korea, the United Kingdom and the United States of America, and finally, the European Union (EU). Although the chapters differ in their approach to a certain extent, similar topics are covered in each chapter, thus providing the reader with comparable information. It is, however, interesting to note that the jurisdictions chosen, although representing variety when it comes to legal cultures, are fairly large in terms of the size of the economy and population. In the light of the long environmental law tradition in the Nordic countries, which are smaller jurisdictions and often categorised as a sub-group of civil law systems, views from a Nordic country could have strengthened Part I.
Highlighting the current environmental problems, the Handbook’s Part II, entitled Problems, provides, in chapters 19 through 28, an analysis and to a certain extent a comparison of, inter alia, the legal approaches of several jurisdictions relating to particular problems. These are atmospheric pollution; environmental regulation of freshwater; land degradation; nature conservation; regulation of marine capture fisheries; genetically modified organisms; climate change and energy transition policies; regulation of chemicals; waste regulation; and contaminated sites. Although the chapters differ considerably in their analyses, they provide valuable information relating to law and the respective problems arising in these particular environmental fields.
Several systems are the subject of Part III, entitled Systems. Its Section A (chapters 29 through 35) relates to infrastructure, covering environmental principles across jurisdictions; distribution of powers; property systems and environmental regulation; regulatory organization; science, environmental law and legal cultures; transnational networks; and adjudication systems. Section B (chapters 36-46), relating to policy instruments, covers topics including command and control regulation (chapters 36-39); market mechanisms (chapters 40 through 41); informational techniques (chapters 42 to 44), and ex post injury-based mechanisms (chapters 45 and 46). The systems which form the subject of this part of the Handbook are diverse, and this part of the book is perhaps its most important and novel contribution, as it pulls together and theorises environmental law, which is more than positive law, in the context of several systems.
The Handbook’s final part, Part VI, entitled Legal Context, contains five chapters (47-51) covering environmental law and constitutional and public law; environmental law and private law; environmental law and criminal law; environmental law and private international law, and finally environmental law and public international law. Tackling a great variety of subject matters, taken together these chapters not only provide valuable information on each subject, they also underline how important it is to understand environmental law in context.
The Handbook reflects an interesting and to a certain extent novel methodological approach, based on functional model thinking for understanding the complexity of environmental law, advancing law and legal analysis from four different angles and thus providing a wider social context necessary for comparative environmental law analysis. The book provides environmental law researchers, law professionals, and law students with a solid foundation in comparative environmental law. One of a kind, the Handbook not only contributes to comparative law scholarship in general, it will also enhance the quality of legal scholarship in the still growing field of environmental law.
Posted by Aðalheiður Jóhannsdóttir, Professor of Law (University of Iceland)
Contact: adalheid (at) hi.is
British Association of Comparative Law 