Introductory: expressing Welsh law perspectives on environmental protection – Patrick Bishop and Mark Stallworthy

Those concerned to see a coherent and effective development of environmental law (especially including policy makers and legal advisers as well as researchers, teachers and students) share a broad awareness of two critical features. First, there is the wide-ranging nature of those problems that can be viewed as ‘environmental’ in character; second, those law and policy fields with which environmental lawyers are required to engage are both multi-faceted and polycentric.

A 2009 article in the Journal of Environmental Law by Elizabeth Fisher et al. marked a notable contribution to a maturing environmental law discourse. The authors generally posed the question of why environmental law continued to be ‘so darn difficult as an intellectual enterprise’, and sought more specifically to classify the main methodological challenges they saw as confronting all engaged within this sub-discipline’s broad jurisprudential church.1 The challenges were organized within four main interconnecting strands, namely interdisciplinarity, policy dynamics, governance fragmentation and jurisdictional multiplicity.

To a greater or lesser extent, the various chapters in this collection represent exemplars of the methodological challenges highlighted by Fisher et al. A few non-exhaustive examples may serve as illustrations. The concept of behavioural change, integral to Stallworthy’s analysis (chapter 9) of climate law in Wales, requires an interdisciplinary engagement with aspects of behavioural economics and cognitive psychology. Further, the legal response to climate change has occurred across numerous jurisdictional levels, including the international community, the European Union, the UK and Wales. Such jurisdictional multiplicity is not unique to the legal response to climate change; the control and eradication of bovine tuberculosis considered by Bishop (chapter 6) is the subject of EU, UK and Welsh legislation and thus a central feature of such a crowded law and policy arena is governance fragmentation. Indeed, such fragmentation is arguably an inevitable consequence of devolution whereby various competencies are divided between London and Cardiff. However, this may be justified on the premise that it is desirable that decisions be taken as close as possible to those affected on the ground, as illustrated by Jenkins’s (chapter 8) discussion of sustainable communities and the importance of public engagement at the local and community level.

Although not explicitly considered by Fisher et al., it is possible to add a fifth methodological challenge, namely the extensive diversity of legal instruments that may be used to tackle environmental problems. Those interested in contract are generally firmly embedded in the law of obligations; similarly, an administrative lawyer’s centre of gravity will be located in institutional structures and relations, and principles of judicial review. We could continue with a plethora of further examples. The essential point is that environmental lawyers are faced with a myriad of distinct legal instruments, borrowed from, inter alia, public law, property law, EU law, international law and criminal law. Further, while one might be tempted to think of environmental law as predominantly a branch of public law (broadly defined), Wilde’s historical evaluation (chapters 3 and 4) of nuisance serves as a useful reminder that, even in a regulatory era, private law mechanisms are not moribund. The nature of the various mechanisms available to policy makers and legislatures is equally diverse, including traditional ‘command-and-control’ regulation supported by sanctions for non-compliance; economic instruments such as taxation designed to discourage environmentally damaging activities; and non-regulatory approaches such as those designed to ‘nudge’ actors towards beneficial conduct.2 Thus, in the post-modern legal world characterized by a diminishing regulatory monopoly on the part of the state,3 environmental lawyers are faced with a regulatory landscape in which the distinctions between formal and informal mechanisms in law and policy have become blurred. The foregoing analysis is encapsulated by Lee’s analysis (chapter 7) of the food strategy for Wales as a soft law instrument.

Accordingly, as editors we present in this volume not only illustrations of the fundamental challenges that confront environmental lawyers, but also a range of responses to such challenges from within the Welsh environmental academy. There follows a brief tour d’horizon of the kinds of problems that fall within the categories identified above, which we in turn challenged contributors to take into consideration in their work here.

First, from an interdisciplinary perspective, environmental lawyers confront a wide range of ethical and regulatory choices, often in areas dominated by complexity and knowledge gaps. This requires working with mixes of both traditional and emerging principles, and related lessons and obstacles presented from other, non-legal perspectives.

Second, in respect of policy dynamics, in which optimum solutions often appear contingent and subject to continual review, environmental lawyers must work with regulatory responses, which variously reflect either established or more radical alternative instrumental and normative influences. In each respect, intradisciplinary tensions can be said to arise, including on such questions as rationale, purpose and efficacy.