McLeod-Kilmurray, Heather

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Book Review: Environmental Law for Sustainability: A Reader, by Heather McLeod-Kilmurray (ed)

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Osgoode Hall Law JournalVolume 45, Number 1 (Spring 2007)Charter Dialogue: Ten Years LaterArticle 12Book Review: Environmental Law forSustainability: A Reader, by Heather McLeod-Kilmurray (ed)Heather McLeod-KilmurrayFollow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohljBook ReviewThis Book Review is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion inOsgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons.Citation InformationMcLeod-Kilmurray, Heather. "Book Review: Environmental Law for Sustainability: A Reader, by Heather McLeod-Kilmurray (ed)."Osgoode Hall Law Journal 45.1 (2007) : 215-222.http://digitalcommons.osgoode.yorku.ca/ohlj/vol45/iss1/12ENVIRONMENTAL LAW FOR SUSTAINABILITY A READER,EDITED BY BENJAMIN J. RICHARDSON & STEPAN WOOD(OXFORD: HART PUBLISHING, 2006) 443 pages.1HEATHER MCLEOD-KILMURRAY2The fact that the Osgoode Readers Series chose EnvironmentalLaw for Sustainability as the subject matter of its inaugural volumesuggests that it is too soon to declare environmentalism dead.3 To thecontrary, the contributors to this book suggest that concern about theenvironment, and the sub-field of law devoted to it, is undergoingprofound and significant change. Indeed, the topic seems ideal to launchthis series, since the Osgoode Readers claim to be "distinguished by ...dealing not only with traditional legal concerns but also with newerchallenges posed by changes in social, ethical, economic and politicalenvironments."4 Environmental sustainability involves changes in all ofthese dimensions simultaneously.The Osgoode Readers Series chose two of its own, ProfessorsBenjamin Richardson and Stepan Wood, both leading experts inenvironmental law at Osgoode Hall Law School, to direct this work.Having identified the major areas to be addressed in a book onenvironmental law for sustainability, Richardson and Wood, in keepingwith a declared hallmark of the series, commissioned new works fromleading scholars in these areas who, in turn, elaborated on their existingwriting. The result is a very broad, deep, comparative, and currentsurvey of the many facets of law and sustainability, with each author ableto summarize and push forward an established and significant researchagenda.'[Environmental Law for SustainabiiOtj.2 Assistant Professor of Law, University of Ottawa.- Michael Shellenberger & Ted Nordhaus, "The. Death of Environmentalism: GlobalWarming Politics in a Post-Environmental World" (2004), online: The Breakthrough Institute<http://www.thebreakthrough.org/images/Death ofEnvironmentalism.pdf>.4 Richardson & Wood, supra note 1 at inside cover.OSGOODE HALL LAW JOURNALThe collection has many strengths. The first is thecomprehensive introductory chapter by the editors themselves. Thischapter is ideal for students of all levels, as well as new and experiencedscholars in the field. In a remarkable feat, the overview of the historyand evolution of environmental law is brief yet comprehensive andbrings the reader up to date on current challenges and innovations.Since the tome feels, in many ways, more like a book than a collection, Iwas left wishing for a similar concluding chapter to round things off.Another strength of the book is the continuity of tone and styleacross the very disparate topics and authors. This is seen in the structureof most chapters, which begin with clear definitional sections. Manychapters also have a strong list-like quality, with important points andtheir sub-issues clearly numbered. This may be due to the fact that thetwo editors co-authored many of the chapters with the invitedspecialists. It may also be a nod to the intended audience of theOsgoode Readers, which are "primarily aimed at upper-year LL.B. andJ.D., as well as graduate law, courses as either companion volumes orcore prescribed readings," as well as established scholars and newresearchers.5However, that may also be one of the greater challengespresented by the collection: it is not clear precisely which audience it isbest suited to. There are some chapters which seem to be intended moreas introductory and summative expositions of an area of environmentallaw, which would be ideal for students in their first environmental lawclass but might leave experienced scholars wanting more. Otherchapters are clearly intended as deep and advanced critical essays withconsiderable prescriptive and agenda-pushing content. These chaptersare very satisfying and helpful for those who are well versed in the topicbut may require considerable prior reading for the newcomer. Whilethis might make the book somewhat of a challenge to use as the maintext in either an introductory or graduate course in environmental law,the reader has clearly achieved its purpose of offering something foreverybody, from the second-year student to the advanced scholar.After the thorough overview chapter, the text is divided into fourparts, each containing three chapters. Part one, entitled "EnvironmentalRegulation and Administration," contains chapters on institutions and5Ibid.[VOL. 45, NO. I2007] BookReviews 217policies,6 command and control approaches, 7 and risk.' Part two dealswith "Ethical and Human Rights Dimensions," including ethics,9 publicparticipation, ° and the intersection between indigenous people andenvironmental law." Part three addresses "Economic and BusinessDimensions," including chapters on voluntary codes, 2 other economicinstruments, 3 and the even more recent concern with sustainability andfinancial institutions." Part four covers "International and ComparativePerspectives," including a chapter on international environmental law, 5the environmental effects of trade law,' 6 and the sustainabilitychallenges that post-colonial societies face. 7 As would be expected,some parts form a more cohesive group than others.Although there are subjects that are not addressed, anyone whohas attempted to craft an environmental law syllabus knows of theimpossibility of being comprehensive when addressing this vast anddisparate subject. For example, the editors themselves point out that thebook "touches only briefly on property law instruments ... informational6 Stephen Dovers & Robin Connor, "Institutions and Policy Change for Sustainability" inEnvironmentalLawforSustainability, supra note 1, 21 [Dovers & Connor, "Institutions"].' Carolyn Abbot, "Environmental Command Regulation" in Richardson & Wood, supranote 1, 61.' Elizabeth Fisher, "Risk and Environmental Law: A Beginner's Guide" in Richardson &Wood, supra note 1, 97.' Klaus Bosselmann, "Ecological Justice and Law" in Richardson & Wood, supra note 1,129 [Bosselmann, "Ecological Justice"].10 Benjamin J. Richardson & Jona Razzaque, "Public Participation in EnvironmentalDecision-making" in Richardson & Wood, supra note 1, 165.11 Benjamin J. Richardson & Donna Craig, "Indigenous Peoples, Law and theEnvironment" in Richardson & Wood, supra note 1,195.12 Stepan Wood, "Voluntary Environmental Codes and Sustainability" in Richardson &Wood, supra note 1, 229 [Wood, "Voluntary Environmental Codes"].3 David Driesen, "Economic Instruments for Sustainable Development" in Richardson &Wood, supra note 1, 277." Benjamin J. Richardson, "Sustainable Finance: Environmental Law and FinancialInstitutions" in Richardson & Wood, supra note 1, 309.'Jaye Ellis & Stepan Wood, "International Environmental Law" in Richardson & Wood,supra note 1, 343.16 Oren Perez, "International Trade Law and the Environment" in Richardson & Wood,supra note 1, 381.17 Benjamin J. Richardson, Ikechi Mgbeoji & Francis Botchway, "Environmental Law inPost-colonial Societies: Aspirations, Achievements and Limitations" in Richardson & Wood, supranote 1, 413 [Richardson, Mgbeoji & Botchway, "Environmental Law in Post-colonial Societies"].OSGOODE HALL LAW JOURNALpolicy mechanisms ... nature conservation legislation or integratedpollution control."' 8 However, the diversity and range of topics that aretackled is impressive.Through these diverse sub-issues runs the common goal of thework: to investigate and/or prescribe the changes that must be made totraditional approaches to environmental law and institutions as a resultof the new framework of sustainability. In attempting this, one of thebook's strengths is its careful definitions, which allow the contributors tochallenge presumptions and perceptions that either were inaccurate tobegin with or are no longer true given the new challenges presented bysustainability. Part one on "Regulation and Administration" is a goodexample of this. Dovers and Connor emphasize that "command andcontrol" has always been something of a misnomer and could be moreaccurately described as "command and compromise."19 These authors,like several of the other contributors, take pains to define sustainability.They highlight that "sustainability problems are different in kind frommany problems in other policy domains,"20 and claim that "thesustainability idea" resultsfrom the convergence of three concerns, each with its own values, problem definition andlanguage - ecological integrity, economic efficiency, and social justice ... Oneprecondition for institutional change for sustainable development is therefore theprovision of a discursive space where these concerns can be brought together.2'Having challenged presumptions and defined terms, they thenput meat on the bones by applying their analysis to five case studies toshow how policies and institutions have been changed in variousjurisdictions when dealing with a particular problem of sustainability.The case studies are compared under the structure of seven principles"to inform policy and institutional change." The result is a chapter thatis both theoretical and practical, with universal prescriptions as well asconcrete comparative examples. The structure of most chapters is"s Benjamin J. Richardson & Stepan Wood, "Environmental Law for Sustainability" inRichardson & Wood, supra note 1, 1 at 17 [Richardson & Wood, "Sustainability"].'" Dovers & Connor, "Institutions" in Richardson & Wood, supra note 1 at 22. Wood inpart three similarly points out that so-called "voluntary" measures are often commanded or at leaststrongly encouraged by mandatory rules. See Wood, "Voluntary Environmental Codes" inRichardson & Wood, supra note 1 at 248-49.2oDovers & Connor, "Institutions," ibid. at 35.21 Ibid. at 41.[VOL. 45, NO. IBook Reviewssimilar, as most define, or redefine, terms and most also contain asection applying their arguments to a range of specific examples, oftenin a way that includes interjurisdictional comparisons.The other two chapters in part one are also interesting. Thechapter by Abbot is very thorough and clear in its historical overviewand assessment of command and control approaches. Although its moreexpository tone suggests it may have been better placed as theintroductory chapter of part one, it is ideal for newer students or thosewho are trying to review where we have been and where we are going.Again, a vast range of examples adds to the utility of this essay.By contrast, the chapter by Elizabeth Fisher is one of the mostchallenging and prescriptive of the works in this book, despite the factthat Fisher has entitled 'the essay "Risk and Environmental Law: ABeginner's Guide." Drawing on her extensive writing in the area of risk,Fisher presents us with a strongly argued perspective that the concept ofrisk is "deployed" like a weapon.2 Fisher makes a very strong case thatrisk assessment and management, and the politics of the precautionaryprinciple versus precautionary approach that recently played out at theWorld Trade Organization (WTO) (among other fora), is a very politicaland socially constructed debate. Fisher's goal is to shred any remains ofthe notion that risk and science are objective and neutral, so that we canget past this thinking and open the door to a wider range of perspectivesand potential options for resolving our risk-management problems.Fisher's prescriptions are bolstered by a clear case study, and thisthought-provoking and illuminating chapter is very useful.Although the chapters in part two on social and human rightsdimensions of sustainability have many strengths, the same diversity interms of audience and purposes found in part one is also found here.Part two clearly succeeds in the important endeavour of demonstratingthat "sustainability is just as much about social justice and protection ofcultural diversity as it is concerned with plants, animals andecosystems." 3 In my view, the most thought-provoking piece is KlausBosselmann's chapter on "Ecological Justice and Law."24 This chapter isan ethics chapter with a twist-Bosselmann succeeds not only in briefly2 2 Fisher, "Risk and Environmental Law" in Richardson & Wood, supra note 1.2 Richardson & Wood, "Sustainability" in Richardson & Wood, supra note 1 at 18.2 4 Bosselmann, "Ecological Justice" in Richardson & Wood, supra note 1.2007] 219OSGOODE HALL LAW JOURNALbut thoroughly justifying the importance of environmental ethics to law,he also incorporates political theory. This chapter provides a very strongargument that sustainability requires a new definition of justice. Theauthor provides a compelling prescription for what this new definitionshould contain. According to Bosselmann, sustainability law should bebased on intergenerational equity, intragenerational equity, andinterspecies justice. While the first two principles are more wellknown-intergenerational equity refers to the more commonly phrased"concern for future generations" and intragenerational equity refers tothe more common term "environmental justice"-the third principlepushes the link between environmental ethics and law forward byincluding the tool of intraspecies equity for operationalizing ecocentricethics in law. Bosselmann bolsters his argument by pointing to existingexamples of legislation and treaties that incorporate his vision ofecological justice. Thus, his argument that "environmental law should beinformed by ecological justice, in much the same way as law in general isinformed by justice," seems more of a practical possibility than merely atheoretical perspective.25Part three keeps in line with current trends to emphasize theimportance of economic approaches, including the emerging area offinancial services as tools of sustainability. However, each of the threechapters in this part takes a very critical approach to presumed benefitsand underlying assumptions in relation to economic instruments andvoluntary measures; each makes valuable contributions to the literatureon this level. In particular, seeing all of these issues dealt with in acohesive manner sheds light on the differences and similarities betweenalternative approaches to achieving sustainability.The final part of the book deals with international law:evaluating the history and current role of international law, trade andenvironment issues, and the experiences of developing countries. JayeEllis and Stepan Wood, in a remarkably concise chapter, provide thebroad strokes of the basic concepts, historical background, andunderpinnings and evolution of international law in relation to theenvironment. Yet the chapter is strongly analytical. The essay is general,focusing on big principles, but is also very specific, in clarifying andchallenging traditional understandings of key cases and principles. This25 Ibid. at 163.[VOL. 45, NO. IBook Reviewsis one chapter that seems equally useful to the beginner and theadvanced scholar.Looking at the other chapters in the final part, Oren Perez'schapter on trade and the environment is strong, complex, and veryspecific in its prescriptions, particularly in its linkages between theoryand practice, although this chapter may be another for the moreadvanced reader. The final chapter by Richardson, Mgbeoji, andBotchway on developing countries is crucial to any text on sustainabilitygiven the central role of the conflict between developed and developingnations on the issue of sustainable development. This chapter isespecially helpful in including not only the least developed areas, such asAfrican nations, but also the less frequently discussed rapidlyindustrializing economies. Mirroring the strengths of the other chapters,this chapter also employs case studies and specific comparativeexamples to highlight its main points.The Osgoode Readers Series claims to offer interdisciplinarity,and perhaps this is one place where the first volume comes up somewhatshort. Of the fourteen contributors, including both editors, all but twoare law professors.26 Insights from scholars in economics, politics,philosophy, and health and science on the role and record of law forsustainability would perhaps have added diversity of perspective,although this might have brought the risk of reduced consistency andharmony in the collection.In addition, as a text edited in Canada and one that seeks to be"alert to comparative-law insights,"27 it is regrettable that it does notcontain any contributors from Quebec, any comparisons drawn betweenCanadian common and civil law approaches to the environment, orsome of the innovations in environmental law in Quebec such as thedifferent approach to class actions28 and the provincial right to a clean6 Robin Connor is a senior policy analyst at the Ministry of Fisheries in Wellington, andStephen Dovers is a professor at the Centre for Resource and Environmental Studies at theAustralian National University.27 Richardson & Wood, supra note 1 at inside cover.28 Andr6 Durocher, "Le recours collectif et le droit de l'environnement" (February 2002),online: Fasken Martineau DuMoulin LLP <http://www.faskenmartineau.com/web/fmdwebsite.nsf/AllDoc/39E58F7927944CEA85256C4E00647779/$File/COLLECTIFCOUVERTURE2.PDF!OpenElement>.2007]OSGOODE HALL LAW JOURNALenvironment 9.2  As a series purporting to be "relevant across legaljurisdictions," also notably absent are Islamic and socialist legalapproaches to the environment. Apart from these gaps, however, thebook thoroughly achieves its comparative law goals in other ways. Thecontributors work in a range of jurisdictions, including Canada(Richardson, Wood, Ellis, and Mgbeoji), New Zealand (Bosselmannand Connor), Australia (Craig and Dovers), England (Botchway, Fisher,and Razzaque), Israel (Perez), and the United States (Driesen). Thework as a whole is richly comparative, as are most chapters withinthemselves. Some examples include the chapter by Dovers and Connor,which emphasizes innovations undertaken by the European Union, andthe essay by Richardson, Mgbeoji, and Botchway, which, as noted above,using illuminating examples, provides detailed distinctions between thesustainability and development issues in sub-Saharan African nationsand the rapidly industrializing states in Asia.Overall, the book is remarkable for achieving coherence andunity in a work of such diversity and complexity. If Environmental Lawfor Sustainabiliy was the only environmental law book a newcomer tothe area had read, he or she would come away with considerable historicand general knowledge, as well as deep and insightful critiques ondetailed and complex questions that are at the forefront of currentissues facing law and sustainability. The book makes even greatercontributions in its many specific and timely prescriptions forimprovements to sustainability law. Richardson, Wood, and the manycontributors to this work have provided a unique and very useful tool,not only for students taking their first steps on the path of sustainabilitylaw, but for well-seasoned travellers as well.2 9 Environmental QualityAct, L.R.Q., c. Q-2, s. 19.1: "Every person has a right to a healthyenvironment and to its protection, and to the protection of the living species inhabiting it, to theextent provided for by this Act and the regulations, orders, approvals and authorizations issuedunder any section of this Act."222 [VOL, 45, NO. I

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Book Review: Environmental Law for Sustainability: A Reader, by Heather McLeod-Kilmurray (ed)

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