Legal Reasoning in Environmental Law

Legal Reasoning in Environmental Law

A Study of Structure, Form and Language

Douglas Fisher

Legal Reasoning in Environmental Law provides a comprehensive review and analysis of the range of legal reasoning processes to support the understanding, interpretation and application of international, regional and national rules of environmental law.

Chapter 15: Rules informing adjudication

Douglas Fisher

Subjects: environment, environmental law, law - academic, environmental law, legal theory, public international law


So much for a speculative analysis of a number of statutory instruments. Let us turn now to a review of how a range of judicial institutions have analysed relevant sets of statutory arrangements. We approach this in three ways. What is the scope of the legislation, first, in terms of the areas to which it applies and, second, in terms of the subject matter to which it applies. There is, third, the issue of liability. The traditional function of adjudication is part of the environmental legal system. Liability may arise when the activities of one person impact upon another person. In this respect the function of the judicial institution is to determine what has happened in the past and to decide whether there has been a breach of an obligation. In some respects liability in this sense may attach to the consequences of decision-making rather than of operational activities. The legitimacy of decision-making activities is much more important in the context of future rather than past activities. In other words, is what is proposed capable of being justified in accordance with the rules applicable to the decision-making process? Issues such as these dominate the way in which environmental law is developing. Let us deal in this chapter with the issues of application and liability before turning to the more difficult issue of the legitimacy of decision-making processes about future activities. The courts in the United States of America have addressed on two occasions the territorial scope of the National Environmental Policy Act 1969.

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