THE FOUNDATIONS OF ENVIRONMENTAL LAW

This paper will explore what the foundations for the next generation of environmental law should be.  We identify key challenges and pose some questions about environmental goals (such as ecological sustainability), objects for specific legal instruments, and principles that should be reflected in legal instruments to achieve these objects.

Effective and well-designed environmental laws need solid foundations in the form of clear, effective and efficient goals, objects and principles. Our present system is insufficiently clear about what it is aiming to achieve, and the legal or other principles that underpin the design and implementation of specific laws. It needs to be forceful, to ensure that these basic elements are truly reflected in how legal instruments are designed, their mechanisms for implementation, and the integrity with which they are implemented. Australia’s environmental laws need significant improvement in all of these aspects.

The foundations for the next generation of environmental law must involve these three elements. First, we need to identify what the fundamental goal of environmental law is to be, as derived from a broader societal goal in relation to the management of the environment. Next, it is useful to figure out what the objects of environmental laws should be, an exercise that often requires consideration of what particular environmental laws should do, should be achieving, and how they are to be interpreted and applied. Finally, we need to identify the key overarching principles of environmental law that can operate as the more detailed rationale or rule upon which environmental law should be based.