New Zealand Journal of Environmental Law
Last Updated: 13 February 2023
Benjamin J Richardson and Stepan Wood (eds), Environmental Law for Sustainability, Hart Publishing, Oxford, Portland and Oregon, 2006, ISBN13: 9781841135441, 487 pp.
Where are we? It is approximately 40 years since the beginning of the modern environmental law era, 27 years since Stockholm, 20 years since the WCED put “sustainable development” on the international agenda,1 and 15 years since Rio.2 All this human effort, but is humankind any closer to achieving sustainability? The answer to this question is sobering. The 2005 United Nations Millennium Ecosystem Assessment (“MEA”), a comprehensive evaluation of ecosystem trends, recently concluded that virtually all of the Earth’s ecosystems have been significantly transformed through human action.3 Approximately 60 per cent of ecosystem services are being degraded or used unsustainably, and species extinction rates are 1,000 times over background rates typical throughout the planet’s history. Ecological degradation is still coupled with human misery: 1.1 billion survive on less than $1 per day, with 70 per cent of these people highly dependent on ecosystem services. Thirtyseven million more people are under nourished than in 1997–1999 and 1 to 2 billion face scarcity in one of life’s most essential resources: water. And what of the prognosis for the next 50 years? The MEA uses selected scenarios to present us with a challenge; improvement is possible, but only with major change of a magnitude that is not yet in place.4
Faced with an unsustainable reality (but not overwhelmed by it), the book is concerned to critically, and imaginatively, explore the role of environmental law for sustainability. As the editors of this collection explain, the relationship
*Senior Lecturer, School of Architecture and Planning, University of Auckland; Deputy Director, New Zealand Centre for Environmental Law, University of Auckland.
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between environmental law and sustainability operates in at least two directions:
First, environmental law may have an impact on sustainability, in terms of whether it helps move societies toward ecologically sustainable patterns of production and consumption. Secondly, sustainability ... may have an impact on environmental law, for instance leading to a preference of some legal doctrines, institutions or instruments over others.5
Acknowledging that it is easier to trace the latter rather than the former, the editors set their 12 contributors the ambitious task of exploring both types of effects within their allocated topic areas.
But what is meant by “sustainability” in this book? Can 12 individual authors write a coherent collection of environmental law essays on a term as contested as “sustainability”? In an appropriate acknowledgement of the diversity of views that surround both “sustainability” (defined as a highorder social goal) and “sustainable development” (defined as the policy manifestation of attempts to achieve the goal), contributing authors are able to apply their own definitions. These range broadly between the two poles of “weak” and “strong” sustainability. The former focuses on limited integration between the four dimensions of sustainability: economic, social, environmental, and cultural. It does not, however, acknowledge fundamental ecological constraints to human activity, nor does it require radical change to economic and social institutions, policies, and behaviours. Strong sustainability, on the other hand, “demands radical institutional and policy changes in order to maintain the total stock of natural capital including biological diversity”.6 The outcome of this approach is a broad selection of scholarly views that combine pragmatic and visionary thinking, giving the reader a good example of the complexities of the topic.
A set of principles are identified as being at the core of the relationship between sustainable development and environmental law.7 These include the integration principle, inter and intragenerational equity, the precautionary principle, and the principle of internalisation of environmental costs. This does not pretend to be an exhaustive list. But the great advantage of this book’s treatment of these selected principles is that discussion and elaboration occurs within a wide variety of interrelated contexts: international and domestic, developing and developed nations, indigenous cultures, and within the government and private sector. This approach avoids the rather dry and descriptive analysis adopted by other books. Again, this is an approach that
5 B Richardson and S Wood, Environmental Law for Sustainability 1, at 13. 6 Ibid, 14.
7 See, for example, MC Cordonier Segger and A Khalfan, A Sustainable Development Law: Principles, Practices, & Prospects (Oxford University Press, New York, 2004).
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helps the reader better appreciate the multifaceted nature of societal responses to the sustainability challenge.
Environmental Law for Sustainability is a collection of thoughtprovoking and condensed essays, addressing some of the key roles of environmental law from the viewpoint of diverse scholars. Part 1 focuses on traditional “command and control” regulation but incorporates recent innovations intended to increase, for example, the responsiveness of this regulatory approach. Chapter 2 is a particularly helpful essay on the interconnections between law and change within policy and institutional systems. Social justice and human rights dimen sions of environmental law for sustainability are the subject of Part 2. This Part reminds us of the centrality of social justice and cultural diversity (in addition to ecological integrity) to the achievement of sustainability. It covers environmental ethics and the concept of “ecological justice” (Chapter 5). Here, Bosselmann argues that environmental law should be informed by ecological justice, in much the same way as law in general is informed by justice. Richardson and Razzaque produce a comprehensive yet succinct chapter on public participation (Chapter 6), in which we are reminded that the achievement of this vital procedural right does not depend upon legal frameworks alone. These authors also point to future challenges, noting that the hollowing out of the State and the emerging dominance of the corporate sector presents a new generation of problems for public participation. The final chapter (Chapter 7) in this Part deals with the more specific issue of participation by indigenous peoples.
Part 3 examines a selection of emerging economic methods and tools adopted by environmental law. These include ecotaxes, tradeable emissions permits, ethical investing, green lending, forms of selfregulation, and voluntary environmental codes. Chapter 10 deals with regulatory intervention in the finan cial sector, arguing that this is a new frontier for environmental law reform. Given the traditional selfinterest of financiers and financial markets, and the dominance of the profit motive, the results achievable here may only be modest. Part 4 examines some of the broader dimensions of the topic. There is a concise chapter on the current state of international environmental law (Chapter 11), a chapter on international trade law and the environment (Chapter 12), and a final chapter on the aspirations and frustrations of achieving environmental governance in postcolonial societies (Chapter 13). All four parts of the book combine to create a valuable collection of contemporary essays, based on the latest research.
I can fully recommend this book to students, fellow academics, practitioners and government officials. There are a number of chapters of particular relevance to New Zealand, reflecting both the experience of various scholars but also the leadership and influence exerted by the Resource Management Act 1991. For New Zealand readers, this book nicely complements reflections on the RMA within a comparative and international context. My only criticism of this book
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is that it does not address the issue of transformation of environmental law. The principle of integration requires integration of environmental issues across diverse and often conflicting sectors. But if this is to be more than a limited exercise in making political, economic, social, and cultural systems more “environmentally sensitive” then virtually all fields of policy and law will need to be significantly reshaped around sustainability. Two authors (Ellis & Wood, Chapter 11), remark that this is a challenge facing international environmental law today.8 I would conclude by saying that it is the challenge facing all legal systems across virtually all fields. Without transformations of this magnitude, the MEA will have served as only one of many ignored warnings.
8 J Ellis and S Wood, “International Environmental Law”, Environmental Law for Sustainability
343, at 380.