LAW IN ENVIRONMENTAL DECISION-MAKING

CHAPTER ONE
INTRODUCTION
1.1   Background of the Study
Environmental issues are at the heart of some of the most complex and consequential decisions that society must face in pursuit of a more sustainable future (Edward Eglar 2019). They encompass the international, national, and local levels and engage all branches of government. Decision Making in Environmental Law, this brings together some of the leading experts in the field and provides a structured overview of the various dimensions of decision making from an environmental law perspective. This includes the use of treaties, common law tools, rulemaking, access to information, regulatory structures, market-based and trading mechanisms, monitoring and reporting, voluntary programs and private regulation, environmental impact analysis, public engagement and environmental justice, administrative and judicial review, and the role of environmental courts and tribunals. In simple terms, environmental decision making is taken to mean decision making that has an effect on our environment. If adopting a broad definition of environment, it could be said that nearly all decision making comes into this category. So why do we need to talk about environmental decision making at all rather than simply decision making? It is because there is increasing recognition that many of the decisions we make and actions we take, both individually and in groups, have an effect on our environment and yet economic and political considerations often dominate in a way that seems to exclude environmental considerations. By environmental in this context, I mean that which surrounds and affects us including our physical and biological life-support base alongside social, economic, cultural, political and institutional factors. Taking into consideration those decisions which have local dimensions which are related to worldwide environmental issues, and where individuals and groups have choices, they can make to maximise positive environmental outcomes, improve our environment and limit detrimental effects. Examples include our use of transport, making consumer decisions, planning new or improved developments and managing natural resources. Whilst accepting that there are widely divergent views about what environmental decision making implies, we believe that the main challenge seems to be not one of replacing economic, political and social considerations, which currently prevail in much decision making, with an environmental agenda but one of bringing these factors together in every decision-making process. A note of caution is needed however: singling out one area for special attention might on occasions have the effect of separation rather than integration. In order that we might more fully explore this integration of environment with the other factors prevalent in decision making, we perhaps need to begin by taking the position that we cannot afford to exclude environmental concerns if we are to meet basic human needs both now and in the future. This is based on an assumption that the rate at which we are using some of our natural resources (such as oil, water or land) and polluting air, soil, fresh waters and oceans is unsustainable. Hence, we will consider environmental decision making in the context of sustainable development and will now go on to explore what that means. This collection draws together a range of approaches to environmental legal issues, covering a broad spectrum from domestic to international law. The contributors investigate aspects of law’s influence in environmental decision-making and consider whether legal institutions and theory can respond adequately to the challenge of environmental change. It is a book which provides an example of the way forward – a positive step in the right direction for environmental law … a book that is wide-ranging in its scope but which at the same time offers some valuable discussion of the significant key issues which are raised in these assorted jurisdictions and varied legal areas … this book provides a valuable contribution to the progress towards a more mature approach to enviromental law, as well as a collection that sign posts the way for other environmental lawyers.’ Fiona Donson, Law Quarterly Review, Oct 1999. It is based on an understanding that environmental decisions which are essentially political in nature and controversial cannot rest solely on the perception and knowledge of unelected experts. In this understanding public participation is not only a means to overcome the 'democratic deficit' in environmental decision-making but is also a device to incorporate value judgments into environmental decisions. Notwithstanding agreement on the desirability of society in environmental decision making, there are a plethora of ethical and legal issues relating to public participation which need to be addressed in a satisfactory manner so that public participation might become meaningful and effective. In reality, however, decision makers do not have perfect information upon which to base decisions or to predict the impact and consequences of such decisions. But decisions need to be made despite those uncertainties. (Lindley, 2006). The available data on the multiple factors, including human health risk, that shape environmental decisions rarely encompass all relevant considerations. For example, although the toxic effects of a test substance may be definitive and undisputed in laboratory animals, the potential for risk to humans caused by environmental exposure to the same substance may be uncertain and controversial. Exposure levels for certain chemicals may be measurable and reproducible for populations in some locations but available only as modeled estimates in others. Investigators may have data to show that a pollutant is present in the soil at certain locations but may not have data to determine whether residents are exposed to it and, more importantly, whether residents are exposed at potentially harmful levels. Sophisticated methods for quantifying uncertainty may be available for some data categories but untested and of uncertain utility for others. Gathering additional information would require time and resources. As a result, uncertainty is always present in data and analysis, and decision making is invariably based on a combination of well-understood and less-well-understood information.