Australian Environmental Law 2nd Edition

Australian Environmental Law 2nd Edition

By DE Fisher

Book

$142.00 RRP

Date: 16/02/2010

Code: 9780455226873

Lawbook Co., AUSTRALIA

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Book Australian Environmental Law 2nd Edition 16/02/2010 9780455226873 $142.00

Description

Since 2003 climate change and overuse of water resources have emerged as major challenges for the environmental legal system. The second edition of Australian Environmental Law addresses these issues. It remains a principles-based text on environmental law and policy which examines Australia’s environmental system from a doctrinal and instrumental perspective.

Relevant legislation and case law have been updated throughout and the book has been restructured to reflect ever-increasing levels of social, political and academic interest in sustainable development and environmental planning.

The chapters on ecologically sustainable development and the instruments of environmental law have been rewritten, restructured and relocated, and a new chapter on the emerging challenges for environmental law has been added, including discussion of climate change and water resources management.

Contents
Part I - The Normative Context of Environmental Law
1. The Nature of Environmental Law
2. The Ethical Dilemmas of Environmental Law
3. The International Framework of Environmental Law
4. The Constitutional Foundations of Environmental Law
Part II - The Normative Structure of Environmental Law
5. The Changing Directions of Environmental Law
6. The Normative Sources of Sustainability
7. Sustainability in Australian Legislation
Part III – The Instrumental Structure of Environmental Law
8. Rules of Law in Support of Environmental Policy and Regulation
9. Rules of Competence
10. Rules of Limitation – Normative and Strategic Rules
11. Rules of Limitation – Regulatory, Liability and Market Rules
12. Planning for Environmental Management
13. Towards Integrated Environmental Planning
Part IV – Environmental Law in Operation
14. Facilitation of Resource Development
15. Protection of the Environment
16. Conservation of the Natural and Cultural Environment
17. Enforcement
18. How Environmental Law is Responding to Global Challenges

Editorial Reviews

From: (2010) 27 EPLJ 469
Reviewed by Dr Rachel Baird, School of Law, USQ
 
This text is an update and overhaul of the 2003 text of a similar name – Australian Environmental Law. As Professor Fisher notes, a lot has happened since then in the field of environmental law. Perhaps the most significant developments have been the entrenchment of the concept of sustainability into legislation and policy, and the entry into every debate on the environment of the phrase “climate change”.
 
Although some chapters from 2003 are revisited, the book has been substantially reordered and is now presented in four parts:
•          The normative context of environmental law
•          The normative structure of environmental law
•          The instrumental structure of environmental law
•          Environmental law in action
 
The Fisher text differs from Gerry Bates’ updated Environmental Law in Australia (7th ed, 2010) in that the latter contains quite separate subject specific chapters on common environmental issues such as strategic environmental planning and the protection of biodiversity. Fisher is more theoretical and reflective in his examination of environmental norms and structures. As such, non-law students may find Parts I and II less useful simply because they are often looking for the law as it relates to specific issues and not a reflection on norms and their historical perspectives. That said, the reflections are informative and in the context of sustainability assist in the discussion of whether “sustainable development” is an international norm (Chapter 6).
 
Although titled “Australian Environmental Law”, Parts I and II adopt a comparative approach and address developments in other countries. For example, the definitions given to “environment” in the United States, United Kingdom, Bulgaria, South Africa, India and China are reviewed in Chapter 1.  Chapter 5 examines environmental charters in the United States, Asia, European Union and the United Kingdom.
 
Chapter 2 is an interesting chapter which reviews, under the heading “The Ethical Dilemmas of Environmental Law”, the relationship between humans and the environment in the context of domination, cooperation and conservation. A philosophical discussion of values, based upon anthropocentrism and utilitarianism, then follows. Fisher also identifies weaknesses or deficiencies in environmental law such as: fragile values (too generic to be readily applicable), conflicting goals in the use of a resource, means-ends fluidity (where the means is ascertained but the ends are unclear until the action is completed) and ideological boundaries.
 
Chapter 3 provides a useful examination of the foundations of international environmental law and the framework of the international environmental legal system. Chapter 4 reviews arrangements for environmental law, not just in Australia (which all environmental law texts invariably cover) but also several other states such as South Africa, the Philippines, Bavaria, China, Greece, Illinois and India. It is not clear why these particular jurisdictions have been selected but it makes interesting comparative reading.
 
Chapter 7 is very useful in that it traces sustainability in Australian (federal and State) legislation. It does this on a subject specific basis, examining forestry, mineral resources, water resources, fisheries resources, planning, natural conservation and environmental protection.
 
Part III is theoretical in nature as it looks at the rules shaping the framework forming the structure of Australian environmental law. Rules of property ownership (pubic and private rights), regulatory rules and positive duties and liability rules are examined. Again this is where the text ventures into territory perhaps more familiar to lawyers and students of law, rather than students of environmental studies.
 
Part IV covers environmental law in operation. Resource development laws (forestry, energy resources), the protection of the environment and the conservation of the natural and cultural environment are addressed. The need to plan for environmental management and to integrate environmental issues into decision making and planning is addressed in Chapters 12 and 13. Core environmental matters including resource development, protection and enforcement occupy much of Part IV.
 
The final chapter updates the content by addressing responses to global challenges such as climate change and the related issues of the use of carbon and sequestration. The chapter examines how legislation can limit the amount of greenhouse gases (carbon dioxide in this example) emitted to the atmosphere and in this context a number of approaches under the Environment Protection Act 1994 (Qld) are discussed.
 
Current case law, including the American case of Massachusetts v EPA, is reviewed on pages 569-578, illustrating the use of ligation to address community climate change concerns. These cases represent challenges, typically by community groups, under the available legislative framework on matters such as the use of carbon, greenhouse gas emissions, land use planning, alternative sources of energy and the impacts of climate change. It is a useful chapter for capturing current case law in this area.
 
In conclusion, the second edition of Australian Environmental Law: Norms, Principles and Rules provides a detailed examination of the state of the law and its theoretical underpinnings. It is not a book that can be picked up and easily skimmed for a quick answer as the author has gone beyond the realm of the “quick reference text” to produce a complex and theoretical analysis of environmental law. This causes the reader to reflect more deeply on issues such as the relationship between development and the environment and the influence of international environmental law on the interpretation and application of domestic environmental law. As such it will remain an important addition to the literature in this area for some time.

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