La docencia universitaria en el nuevo contexto enseñanza-aprendizaje por competencias
CATÁLOGO DE COMPETENCIAS POR CATEGORÍA
This chapter explains the approach to researching and analysing the laws that were
encountered by the parties to the controversies detailed in this thesis. It moves from trying to understand the meaning of environmental justice from the literature to drawing lessons from practice and experience. The goal of the chapter is to explain the process of exposing the law to the concept of environmental justice, and to ask how or whether environmental law can integrate or reflect the four aspects of the concept summarised through
Schlosberg’s scholarship.1
The chapter is designed to do four things. First, the chapter situates this thesis within critical environmental legal scholarship. The use of environmental justice as a conceptual framework allows for a critique of contemporary Australia’s environmental legal
experience.2 The preliminary parts of this chapter explain how this thesis views, and argues
for further attempts at, critical legal scholarship for environmental law. Second, the chapter introduces methodological opportunities for environmental law and begins the process of explaining and justifying the methodological approach used in this thesis. The approach combines critical, contextual, geographical and qualitative elements. Third, the chapter attempts to bring understandings of case study methodology from the social sciences into environmental law and, in doing so, to challenge conventional understandings of ‘cases’ by legal scholars and to deepen the understandings for legal scholars about case study
research, especially through the use of interviews and non-legal data. Fourth, and finally, the chapter explains how the research, including the methodology, has responded to and
1 Particularly culminating in David Schlosberg, Defining Environmental Justice: Theories, Movements, and
Nature (Oxford University Press, 2007). Earlier David Schlosberg, Environmental Justice and the New Pluralism: The Challenge of Difference for Environmentalism (Oxford University Press, 1999); David Schlosberg,
‘Reconceiving Environmental Justice: Global Movements and Political Theories’ (2004) 13 Environmental Politics 517.
2 David Naguib Pellow, What is Critical Environmental Justice? (Polity, 2018) positions environmental justice as
contributes to the law about particular places, agents and spaces. It highlights the legal geography lens that has coloured the research throughout the compilation and writing of the thesis and acknowledges the value of a methodological approach that is deeply contextual, and connected to place and the people who have engaged with the law.
A thesis about environmental law
Whereas others have gone to great lengths to define the field of environmental law,3 in this
thesis the environmental laws are those laws raised, challenged and debated that affected the environments and communities of the three case study sites and projects.
Environmental law is vast, and the boundaries of the field are fluid. Each Australian state and territory administers multiple statutes that deal with human relationships with the environment and that purport to conserve or protect the environment. The state of Victoria lists more than 120 pieces of current environment-related legislation under the
administration of five ministers with various responsibilities for the conservation or development of the environment and its resources.4 The Commonwealth of Australia’s
principal environmental statute is complex and massive, an anthology of previous laws, dealing with matters as diverse as requiring environmental assessments, providing protection for heritage places, issuing whale-watching permits and managing the trade in endangered species.5 The New South Wales Land and Environment Court, and to a lesser
degree the specialist environmental courts and tribunals throughout the country that sit lower in their respective court hierarchies, is a constant source of environmental law jurisprudence, incrementally and, at times, unexpectedly, changing the foundations of environmental law.6 Any thesis on environmental law will therefore necessarily be selective
3 Todd S Aagaard, ‘Environmental law as a legal field: An inquiry in legal taxonomy’ (2010) 95 Cornell Law
Review 221, 262, suggests that one broad definition of environmental law is laws that may affect the natural environment enacted with a conscious consideration of the environment. Elizabeth Fisher et al, ‘Maturity and methodology: Starting a debate about environmental law scholarship’ (2009) 21 Journal of Environmental Law
213, 217, simply define environmental law as those laws tackling environmental problems.
4 They are the Ministers for Agriculture; Energy, Environment and Climate Change; Planning; Resources; and
Water. See Victoria, Office of the Chief Parliamentary Counsel, Acts Administrators Report (20 September 2016).
5Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 75, 238, 303BA–303GY, 324JL. 6 The New South Wales Land and Environment Court is particularly celebrated for its advancement of the
and narrowly focused.
Moreover, environmental law is an area of the law that deals with contestation.
Environmental law is the law that deals with problems and decisions that are ‘polycentric’:7
having multiple influences, objectives and expectations, and so requiring and involving governance across scales, values and disciplines.8 Part of the function of environmental law
and its lawyers is to make sense of these problems and decisions, to apply the depth, breadth and history of legal knowledge.9 Australian environmental lawyers should be public
lawyers, common lawyers and international lawyers.10 Often they are cross-disciplinarians,
and increasingly they are interdisciplinarians, bringing to bear on legal issues perspectives from affiliated disciplines, including climate science, geology and geography. Today’s environmental lawyer confronts changing regulatory models, and should be familiar with social, cultural, scientific and policy developments in the domestic and international spheres on dynamic contemporary environmental issues such as climate change and water scarcity. This has encouraged me to devise research questions and seek out research methods that blur boundaries of and within law and between the law and other disciplines. It is in this sense that the thesis can be understood as being both critical and blended. It is deliberately not doctrinal: that is, it does not seek to explain the law or its development or delve into
Corporation Ltd v Hornsby Shire Council (2006) 67 NSWLR 256. More recently, it has been at the forefront of recognising that the principles of ecologically sustainable development are part of the public interest. See
Minister for Planning v Walker (2008) 161 LGERA 423, which, although successfully appealed, remains good law on bounds of the public interest.
7 This concept was referred to in Bulga Milbrodale Progress Association Inc v Minister for Planning and
Infrastructure (2013) 194 LGERA 347, where Preston CJ defined a ‘polycentric problem’ as one that ‘involves a complex network of relationships, with interacting points of influence’ with decisions about such problems requiring the weighing and balancing of often competing goals. In Drake-Brockman v Minister for Planning
(2007) 158 LGERA 349, Jagot J described a polycentric decision-making process as one that must deal with ‘many, potentially competing, objects’. Similarly, the New South Wales Court of Appeal in Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 (2008) 302 ALR 299 descried a ‘polycentric decision- making process’ as ‘involving interconnected and incommensurable interests in the context of the public interest’.
8 Elizabeth Fisher, ‘Environmental law as “hot” law’ (2013) 25 Journal of Environmental Law 347, 354. 9 Aagaard, above n 3, 280–2.
10 Ole W Pedersen, ‘The limits of interdisciplinarity and the practice of environmental law scholarship’ (2014)
26 Journal of Environmental Law 423, 429, notes that ‘environmental law necessitates knowledge and understanding of other sub-disciplines within law’.
issues of complexity around the literal application of the law. Rather, its starting point is that this field of law is not fulfilling its environmental purpose. It seeks to understand why it is not achieving its purpose. Are there faults in environmental law or is it the context within which the law operates, or something else entirely, which means the law is failing to respond to environmental dilemmas? And, finally, would a different analytical or principled framework better achieve the goals of environmental law? The complexity explored is with more than the words of law.
The thesis does not start from a position of neutrality, but with a view that the law requires investigation through a critical, questioning position.11 The thesis has contemporary peers
in the scholarship emerging in the area of law and geography, an area of inquiry that can be understood as a modern subset of the law and society and critical legal studies movements of past decades,12 which seeks to understand the law through the space, place and material
within which it is encountered.13
Given the coverage of environmental law, its position on the borders of multiple disciplines and its dynamism, writing a critique of environmental law is a task beyond any one person or any one piece of work. This is evident in Australia’s leading environmental law
scholarship, with output overwhelmingly incremental or topic specific.14 Bates noted in the
foreword to his seventh edition of Environmental Law in Australia that the state of
environmental law is changeable, a ‘moving feast’15 with regulatory and judicial activity in
the area in an excited state in the face of ever-present environmental predicaments,16 novel
11 Daniel M Trubek, ‘Where the action is: Critical legal studies and empiricism’ (1984) 36 Stanford Law Review
575, 578–9.
12 Mark Tushnet, ‘Critical legal studies: A political history’ (1991) 100 Yale Law Journal 1515, who offers a
polemic of the development of the critical legal studies movement. The debates that persisted through the 1980s and 1990s in the US about critical legal studies have largely ended. Mariana Valverde, ‘Between a rock and a hard place: Legal studies beyond both disciplinarity and interdisciplinarity’ (2014) 1 Critical Analysis of Law 51, introduces the notions of critical analysis of law and post-disciplinary law.
13 Robyn Bartel et al, ‘Legal geography: An Australian perspective’ (2013) 51 Geographical Research 339. 14 Gerry Bates, Environmental Law in Australia (LexisNexis Butterworths, 9th ed, 2016).
15 Gerry Bates, Environmental Law in Australia (LexisNexis Butterworths, 7th ed, 2010) vii.
16 Multiple environmental problems across scales were confronted by Preston CJ in Bulga Milbrodale Progress
approaches to subordinate regulation,17 and parliamentary intransigence to the
improvement of environmental statutes.18
The intention of the thesis is to offer a novel way of thinking about a framework for the analysis of environmental law, and to again highlight the power imbalances, the unfairness and the permitted environmental modification that are central to the current
environmental legal system, which while having an (unfulfilled) environmental purpose lacks an environmental ethic. It will do this by building on the work of social scientists,
environmental philosophers and legal geographers, and by offering insights into the Australian experience of the operation of the law from those most closely affected by the laws: principally the antagonists in disputes about the environments of valued locales, expert witnesses and lawyers.
My approach is to use a theoretical framework with a much longer tradition outside legal scholarship and a research methodology that is most commonly used outside legal
research, including critical legal scholarship. By extracting themes and ideas from theory, I hope to make the project of the law comprehensible to a wide audience and to challenge the foundations or benefactors of the law.