What do you mean when you speak of environmental law as a key “technology”?

Law, including environmental law, can be seen as a technology, that is, a series of interrelated steps and processes designed to perform a certain function. Of course, law is much more than that; it is also culture, values, ethics, an ontology and even a mirror through which a certain society recognises itself as such. But environmental law is peculiar. It is overall very new, a bit more than half a century old; it is remarkably consistent in the problems it tackles and the techniques or approaches it uses to tackle them, likely as a result of the spread of common techniques such as environmental impact assessments; and it comes across much more like a set of technical standards – the French norme technique conveys this dimension better – than like a set of moral prescriptions (e.g. human rights). Above all, its underlying design is remarkably convergent across countries. 

That is what this handbook aims to chart, the overall underlying architecture of the technology with which humankind is regulating other technologies, e.g. fossil fuel-based electricity, heat and transportation, conventional agricultural techniques, the chemical industry, to tackle environmental problems. Furthermore, I am writing a monograph on contract with Oxford University Press which, building on the same research project that resulted in the handbook, will hopefully lay bare this architecture. 

We see today a policy backlash from certain key international actors over the need to address urging environmental issues. Could your approach of environmental law as a single overall system help reverse this tendency?

You are referring, I guess, to the populistic movements that have managed to come to power in countries such as the United States and elsewhere. I think the answer is twofold: first, law – environmental law included – is patient, it looks at the long term; second, in the long term, a new generation with clearer environmental priorities will hopefully take over; at least, this is what the mobilisation of the youth worldwide and the increasing “green vote” in the European Union suggest. Environmental problems are largely a failure of our own generation. The populist backlash is, in my view, transitory. The deeper trend of environmental degradation is much stronger, and calls for action will at some point be genuinely heard and acted upon, even if – as I fear –that will be a disaster-driven response rather than rational and responsible anticipation.
 
Your introductory chapter, “Comparative Environmental Law: Structuring a Field”, exposes the complexities of drawing the contours of environmental law. How did you proceed to overcome those complexities, and what are the main achievements of the handbook, compared to previous research?
 
The main challenge in studying comparative environmental law as a field is, indeed, the lack of a clear conceptual architecture. Extracting and drawing the structure of the handbook was probably the most difficult dimension, and it also explains why – quite strikingly – environmental law has remained conspicuously absent from comparative law research for decades. Once the architecture becomes visible, it becomes possible to design a research project and ask the right people to tackle specific pieces of the overall puzzle. But you need the big picture first, and that was missing. 
 
Interestingly, when doing some historical research, it became apparent that the “plans of the city” were much clearer in the early 1970s. At that time, there was significant interest in comparative environmental law, including a long article by Robert Lutz in the American Journal of Comparative Law that was, until now, the most comprehensive statement of comparative environmental law. Other important attempts came later, but they focussed much more on either specific jurisdictions or narrow topics or jurisdictions-and-topics. There is also Comparative Environmental Law and Regulation, a comprehensive, regularly updated compilation of the environmental laws of a large number of countries, which was launched as a project in the 1970s and finally turned into reality in the late 2000s. But this is what comparative lawyers call “foreign law”, rather than “comparative law”, because it compiles chapters devoted to the laws of country A, then country B, then country C, etc. By contrast, we wanted to compare, and to compare with the specific purpose of investigating underlying commonalities. There were also a few other architectures that were proposed over the years since 1970 until very recently, but these have not been applied or, in other words, they were never put to use to actually analyse empirically environmental law. Thus, there was a major gap between applied studies, whether country-based or genuinely comparative, and conceptual approaches, proposed but not tested with the aim of actually studying, indeed structuring the field. This is the gap that we tried to fill.
 
Our cartography is certainly not perfect. In fact, in my forthcoming book, I will myself emit a number of critical observations. But as any initial cartographic effort, it offers a starting point to guide navigation, a beginning, which will hopefully be further criticised, refined and one day replaced with a better one, as in other scientific demarches. Yet, at least, there is now a starting point. That was very important for both Emma, myself and, I guess, many other contributors. 

To what extent has the fact that environmental law systems focus mainly on the negative externalities of legal arrangements regarding other human activities affected this cartography? 

The conclusion that environmental law is little more than the law of negative externalities is something that I suspected, and that I had hypothesised in my previous work, but until now I had no confirmation because there were no comprehensive empirical studies leading to this conclusion. Yet, contributors to the volume were not asked to work under this hypothesis. In fact, the hypothesis was not even suggested to them. But it results, in my view, very clearly from a combined reading of all the chapters. 
 
It is true that in some specific areas, particularly some rather rare forms of space or species protection and the ban on certain highly toxic substances, environmental law is more than an attempt to mitigate negative externalities and it actually bans the underlying transaction. But that is extremely rare and under constant challenge. By contrast, environmental law was historically built as an additional layer designed to minimise the impact of activities that were organised by an initial and deeper layer of law (economic freedoms, property, corporate law, contracts, etc.) and that were not questioned in their principle. 
 
To use an imperfect but telling metaphor, the difference between addressing the externality or the transaction is much like the one between merely improving the living conditions of slaves and banning slavery. Brought to specifically environmental problems, it is about not just reducing but eliminating fossil-fuel subsidies, banning or very severely restricting gold mining, banning single-use plastics, etc. Yet, what you see in law and, to my great concern, in the discussions conducted in policy circles and international organisations are old concepts which under new names (e.g. the circular economy in plastic management, which leaves the door wide open to plastic production, plastic packaging, etc., as long as the waste is “recycled”) are in fact keeping environmental law as an externality-minimisation device without touching the underlying transaction. 
 
That is a normative stance, but it is derived from an empirical finding, namely, that environmental law remains by and large just the law of negative externalities. That is perhaps why, despite climate policies and nature conservation laws, the emissions of greenhouse gases in 2018 were the highest on record and we are facing the sixth massive species extinction. We have a rough technology to tackle these problems, but it is in dire need for a comprehensive overhaul.

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Full citation of the handbook:
Lees, Emma, and Jorge E. Viñuales, eds. Oxford Handbook of Comparative Environmental Law. Oxford: Oxford University Press, 2019.
With a chapter by Professor Viñuales: “Comparative Environmental Law: Structuring a Field”, 3–34.

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Interview by Ana Beatriz Balcazar-Moreno, PhD candidate in International Law; editing by Nathalie Tanner, Research Office.
Banner image by Tithi Luadthong/Shutterstock.com.