Dave Owen posted had this fascinating thought this week at Environmental Regulation Prof Weblog, relating to a latest dialogue on canonical environmental legislation instances:
The concept of a canonical environmental legislation case may be an oxymoron. In spite of everything, with a number of constitutional legislation exceptions like Lujan, most traditional environmental legislation instances interpret statutes, which typically means the case is much less vital than the statute, which suggests, in flip, that the statutes are actually the canon. However that is sort of boring; if we agree that the environmental legislation canon is the Clear Air Act, the Clear Water Act, RCRA, and so forth, that makes our area sound boring compared to fields the place instances actually have outlined the legislation. So maybe, if a canon, to talk metaphorically, contains the large bushes inside a forest of legislation, we must always deal with the underlying statutory and constitutional framework because the soil out of which these bushes develop.
However even when my strained metaphor works, that also does not clarify why the canon ought to contain instances. Instances are good instructing units, and so they do matter, however they’re badly overrated. In lots of areas of environmental legislation, rules have far more attain and significance. So maybe the query we professors actually needs to be debating, as we procrastinate class preparation and the ultimate phases of grading, is which environmental rules make up the sphere’s canon.
I agree with Dave’s level that statutes and rules are far more vital in environmental legislation than case legislation (and that this can be a problem in instructing the sphere!). Nevertheless, over time I’ve grow to be more and more conscious of how vital litigation has been traditionally in spurring and shaping environmental regulation, some extent made by (amongst others) Karl Boyd Brooks in Earlier than Earth Day.
I just lately had a dialog with an Israeli (non-lawyer) environmental skilled who had been concerned in drafting noise rules within the 1980s, who defined to me that they have been designed to mirror the rules laid out by an Israeli Supreme Court docket nuisance case within the 1970s. From my lawyer’s perspective this made no sense, because the case was determined in line with conventional rules of nuisance legislation, which ought to have been largely irrelevant to the noise rules, enacted below statute. However to the engineers and scientists engaged on the rules, the principles laid out by the court docket appeared to signify some sort of everlasting fact, one they have been sure to offer expression to within the rules. I feel that such a factor has occurred rather a lot.