Changing Nature: The Myth of the Inevitability of Ecosystem Management

In this article, the author argues that ecosystem management is a policy choice masquerading as an inevitability. Ecosystem management is a process that measures, controls and changes ecosystems to produce the most desirable environment in human terms. The article begins with a discussion of two developments from which ecosystem management derives its legitimacy, the theory of nonequilibrium in ecosystems and the extinction of pristine systems: ecosystems exist in a fluid and dynamic state, and there are no ecosystems that are completely unaffected by human impact. Therefore, according to the prevailing view, it is not possible to preserve ecosystems in a natural state. The author questions the logic of that conclusion, arguing that neither nonequilibrium nor the absence of pristine systems dictates that ecosystems must be controlled and deliberately changed. The article\u27s contention is not that natural is preferable, but that it is possible, and that the debate between ecological preservation and environmental utilitarianism can and should occur. If science and law dictate that there are no options but to deliberately change ecosystems, as the managers believe, then the debate has no relevance. Thus, the thesis is not that ecological preservation is a better choice than ecosystem management, but that there is a choice to make

Applying the Precautionary Principle to Private Persons : Should it Affect Civil and Criminal Liability?

Le principe de précaution, né en droit international de l'environnement, est un concept prospectif : il sert à déterminer ce que l'on peut laisser se produire à l'avenir. L'objet de l'article est de déterminer si, en droit national, le principe de précaution doit avoir une application rétrospective. Y a-t-il lieu d'utiliser un comportement marqué par la prudence comme norme d'évaluation des actions passées d'une personne physique pour juger de la légalité de ses actions ? En droit civil, la réponse est « oui ». Appliquer le principe de précaution en droit civil abolit le critère de prévisibilité et transforme la responsabilité fondée sur la faute en une responsabilité stricte. En droit criminel, il ne convient pas d'appliquer rétrospectivement le principe de précaution. Exiger une action prudente de la part d'une personne accusée dans un contexte de droit environnemental transforme la responsabilité stricte en responsabilité absolue et engendre un risque de sanction criminelle même sans culpabilité.The precautionary principle, developed in international environmental law, is a prospective concept. It can be used to decide what should be allowed to occur in the future. The question addressed in this article is whether, in domestic law, the precautionary principle should be applied retrospectively. Should precautionary behaviour be used as a standard to apply to the past actions of private persons, so as to judge whether those persons have acted legally ? In the civil realm, the answer is « yes ». Applying the precautionary principle in civil cases removes foreseeability requirements, and transforms liability based on fault into strict liability. In the criminal sphere, retrospective application of the precautionary principle is not appropriate. To require precautionary action on the part of an accused in an environmental prosecution transforms strict liability into absolute liability, and creates the potential for criminal punishment in the absence of culpability

The Unbearable License of Being the Executive: A Response to Stacey\u27s Permanent Environmental Emergency

This article responds to Jocelyn Stacey\u27s The Environmental Emergency and the Legality of Discretion in Environmental Law . In her article, Stacey attempts to establish the legitimacy of unfettered executive discretion to deal with environmental issues, but the justification that she provides is not up to the task. She asserts that all environmental issues are emergencies but she does not explain why they are so. She proposes to resolve the problem of executive discretion by redefining the rule of law, thereby rendering it an empty shell. Environmental protection and the rule of law do not push in opposite directions. Instead, it is the loss of the rule of law that allows governments to pick and choose the environmental conditions that they wish to alternatively save and sacrifice. The solution to environmental issues that the rule of law demands is not unfettered discretion but better abstraction in rules of general application. Boundless authority to respond to environmental emergency is an unbearable license to make things up on the go

The Unbearable Licence of Being the Executive: A Response to Stacey’s Permanent Environmental Emergency

This article responds to Jocelyn Stacey’s “The Environmental Emergency and the Legality of Discretion in Environmental Law.” In her article, Stacey attempts to establish the legitimacy of unfettered executive discretion to deal with environmental issues, but the justification that she provides is not up to the task. She asserts that all environmental issues are emergencies, but she does not explain why they are so. She proposes to resolve the problem of executive discretion by redefining the rule of law, thereby rendering it an empty shell. Environmental protection and the rule of law do not push in opposite directions. Instead, it is the loss of the rule of law that allows governments to pick and choose the environmental conditions that they wish alternatively to save and sacrifice. The solution to environmental issues that the rule of law demands is not unfettered discretion but better abstraction in rules of general application. Boundless authority to respond to “environmental emergency” is an unbearable licence to make things up on the go

The Unbearable Licence of Being the Executive: A Response to Stacey’s Permanent Environmental Emergency

This article responds to Jocelyn Stacey’s “The Environmental Emergency and the Legality of Discretion in Environmental Law.” In her article, Stacey attempts to establish the legitimacy of unfettered executive discretion to deal with environmental issues, but the justification that she provides is not up to the task. She asserts that all environmental issues are emergencies, but she does not explain why they are so. She proposes to resolve the problem of executive discretion by redefining the rule of law, thereby rendering it an empty shell. Environmental protection and the rule of law do not push in opposite directions. Instead, it is the loss of the rule of law that allows governments to pick and choose the environmental conditions that they wish alternatively to save and sacrifice. The solution to environmental issues that the rule of law demands is not unfettered discretion but better abstraction in rules of general application. Boundless authority to respond to “environmental emergency” is an unbearable licence to make things up on the go