ISSN 1062-7421
Vol. 12 No. 8 (August 2002) pp. 386-393

ENVIRONMENT AND LAW by David Wilkinson. New York: Routledge, 2002. 312 pp. Cloth $80.00. ISBN: 0-415-21567-6. Paper $25.95. ISBN: 0-415-21568-4.

Reviewed by Geoffrey Wandesforde-Smith, Departments of Political Science and Environmental Science and Policy, University of California, Davis.

Environmental law isn't what it used to be. The corpus of the law itself, for example, is very much larger than it was when I started teaching the subject to undergraduates about twenty-five years ago. Moreover, as a field of study and practice, in and out of law schools, environmental law has diversified appreciably in the last three decades. And with this diversification has come a proliferation of teaching tools and instruments, including texts, such as the one under review.

Thus, single volumes or books of cases and materials that try to cover everything and are the work of one or two authors have given way over the years, with some valuable exceptions (Schoenbaum, Rosenberg, and Doremus 2002), to a wide range of specialty compilations, some of which deal with natural resources and lands (Coggins, Wilkinson, and Leshy 1993), some with pollution control (Bonine and McGarity 1984), some with toxic and hazardous substances (Applegate, Laitos, and Campbell-Mohn 2000), some with water (Sax, Thompson, Leshy, and Abrams 2000), some with wildlife (Goble and Freyfogle 2002; Nagle and Ruhl 2002), some with coasts and oceans (Kalo, Hildreth, Reiser, Christie, and Jacobson 1999), some with the states (Dwyer and Bergsund 2002, in the case of California, for example), some with international regimes (Hunter, Salzman, and Zaelke 2002), and even some with individual statutes (Mandelker 1992; Stanford Environmental Law Society 2001).

In fact, when I first taught the subject, there were no texts, or at least nothing more substantial than a pocketbook legal action manual sponsored by Friends of the Earth for people who wanted to stir things up by starting lawsuits (Landau and Rheingold 1971), and a rough, indigestible grab bag of statutory summaries, chiefly aimed at people seeking to stave off lawsuits (Arbuckle, Frick, Miller, Sullivan, and Vanderver 1979). Both of these volumes were marketed, to very different audiences, as environmental law "handbooks."

However, the very idea that one could learn (or learn very much that was satisfying and useful) about environmental law from a short encounter with a single handbook became a casualty, long ago, of the increasing maturity and complexity of environmental legislation and litigation, both of which grew explosively in the 1970s and 1980s and continued to show vitality, at least on the litigation front, into the 1990s and up to the present day. Similarly, the idea that one could or should teach environmental law as a single subject readily comprehensible to non-lawyers, or to people who want to try to think about environmental law as if they were non-lawyers, has also died away (notwithstanding the valiant efforts of Firestone and Reed 1993, and, more

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recently, Kubasek and Silverman 2002, the latter of which the book under review relies upon a good deal when dealing with American environmental law).

All of which goes to say that David Wilkinson, who teaches environmental law at the University of Keele in Britain, faced a much different and more difficult task, when he agreed to write this short book about environment and law for the Routledge "Introductions to Environment Series," than that faced by Earl Finbar Murphy, when he agreed, thirty years ago, to help inaugurate the "Man and His Environment Series," published by Harper and Row, with an introductory book on law (Murphy 1971). Unlike Murphy, who had little environmental law to work with, Wilkinson faced an embarrassment of riches. In addition to American environmental law, with which he never seems entirely comfortable throughout the book, Wilkinson could draw on his much more convincing familiarity with environmental law in Britain and the European Union, as well as material from Commonwealth courts-Australia, Canada, and New Zealand are especially well represented in the table of cases for the book-and what little there is to be gleaned from the work of the International Court of Justice.

On the other hand, if Wilkinson chose, as he says he did, to eschew "relaying legal information" in favor of what one has to say is a very bold and ambitious effort to "explore the subject's structural aspects" across these various jurisdictions, and to explain their "environmental jurisprudence" (p. xiii), he faced a further dilemma. Suppose he tried to find room in a short, introductory book, intended for non-specialist students, for a broadly comparative international assessment of environmental law (which is what occupies the first five chapters and the first one hundred and seventy pages of the book). Could he, then, and should he devote almost as much room in the book to the seemingly obligatory venture, in an introductory text, into the perennially controversial disciplinary thickets, where the promise and limits of law for environmental problem solving, in any jurisdiction, are set beside those of economics, science, ethics, and politics (which are the
subjects, respectively, of the last four chapters)? Murphy spent a good deal of time in these same thickets in 1971, but, as noted, he had no place else to go.

The overall strategy Wilkinson chose to solve this problem, and he is quite straightforward about it, is one that he calls provocation:

"At times, [this] book may seem provocative, with the discussion ranging from the possible rights of aliens to the suggestions for the introduction of tradable birth permits. This is intentional. All who enter the wider debate concerning environmental protection will soon realize that one cannot formulate and defend solutions to environmental problems without addressing much more substantial philosophical questions: broadly, why should the environment matter, and what is the place of humans in the overall scheme of things? In attempting to answer these questions, one must meet all propositions head on, and consider all solutions, even if today they are not always 'politically correct.'" (pp. xiii-xiv).

The way this plays out in the book is sometimes interesting, especially in the first five chapters of the book, but in the end

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rather unsatisfactory. Wilkinson's working assumption boils down to the proposition that, in order to write a book that is compelling for student readers, he needs to be an advocate for strong and radical environmental norms, embodied in what he calls green thought, and for laws that clearly embrace them. However, the repeated presentation to his readers of an equation tying the normative strength and purity of environmental laws measured on a green scale to their probable effectiveness quickly starts to seem incongruous when set beside Wilkinson's own brief excursions into empirical analysis, especially in the first five chapters.

When he looks at the real world, Wilkinson invariably finds that in Britain, as well as in the other countries he discusses, strong, green environmental laws have a hard time being enacted, even at the level of rhetorical flourish, as was arguably the case with the 1973 version of the Endangered Species Act in the United States (pp. 234-236). And, when they are passed, such laws have an even harder time making a significant difference. Perhaps this is why Wilkinson writes quite early on in the book, after a short but useful analysis of the way environmental statutes are enacted in Britain, that "we must question whether legislatures, and the laws that they produce, can ever be radically green since…part of the participatory programme that green thought demands involves a shift away from the traditional centralized law making processes." No matter where one starts in the book, it does not take long for a close reader to ask why Wilkinson chose to spend so much time articulating and validating a radical stance on the "substantial philosophical questions" that underlie green thought when the reality, pretty clearly and on the empirical evidence Wilkinson himself offers in the book, is that environmental law is not now and never has been either terribly radical or terribly green.

This empirical puzzle-why isn't environmental law radical, not just in the United States and Britain but across other jurisdictions, too, and how and why has it made a difference in the world anyway?--will turn out, I think, to be far more compelling for Wilkinson's student readers than his forays into philosophical questions. Questions about what ethics, economics, and science might bring to environmental problem solving, and whether it is more or less than law can achieve on its own, while admittedly important, have been around for a long time. Indeed, some of them are, in precisely the form Wilkinson rehearses them, downright shopworn. In the thousand page book I currently use as a text this is plainly acknowledged by bringing up and rehearsing such questions in the first thirty-eight pages, after which we move on. Moreover, these are questions that seem difficult enough that they will not be resolved to everyone's satisfaction soon, if ever, and they are usually left on the table by policy makers for more attention later, even as the practical work of making, unmaking, and remaking environmental law moves forward.

Consider, more concretely, the last chapter of the book, which may be of most interest to readers of the REVIEW, because it deals with politics and environmental law and because it is far and away the most direct deployment of Wilkinson's strategy of provocation. This is a chapter in which Wilkinson wants to get students thinking about the kinds of political systems that are most conducive to environmental protection and whether strong environmental laws can be accommodated within liberal political institutions.

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The chapter begins by canvassing the different (but in real world political terms, one suspects, rather marginal) views that "technocentrists" and "ecocentrists" express about the influence of technology on policy and law. The basic issue is whether the modern preoccupation with and dependence upon technology to meet human needs has a decisive and corrupting impact on human views of nature, and of the need to dominate or manage it. And further, whether this technophilia, as
Wilkinson calls it (p. 252), is reflected in environmental laws. The technocentrists have had the upper hand when it comes to writing such laws, says Wilkinson, because few, if any of them "prohibit the creation or development of particular technologies. Even risky enterprises such as the manufacture of hazardous substances, release of genetically modified organisms and generation of nuclear power, are CONTROLLED through law rather than prohibited outright. Instead, the general approach is to rely on the use of further technology to ameliorate the environmental problems or risks created by technology's original application" (pp. 251-52, emphasis in original).

The initial provocation by Wilkinson, here, is presumably implicit in the unsubstantiated suggestion that the technologies cited could and should be prohibited rather than controlled. However, Wilkinson goes further, discounting the probability of prohibitory policy because of the "extreme" degree to which environmental law is essentially and little more than technology law and, thus, "alienates the specialists in this field from the object of their concern" (p. 252). How could we have come to this point? Wilkinson next offers the provocative "possible explanation…that technology and innovation imply new markets for the industries involved in their
development, and techno-heavy systems favour the interests of large established corporations over those of smaller or newer entrants. Larger, more powerful corporations are significant forces in the acceptance and shaping of environmental laws at every level" (p. 252).

Driving his point home, Wilkinson then provokes his student readers to imagine that "environmental law can be seen in a more general way as supportive of technology: regulation of industrial and scientific practices provides a form of legitimation that helps assuage public fears about their safety and to entrench the relatively free hand of industrialists. To this extent environmental law may, in the long term, be a negative factor in the overall battle to protect nature" (p. 252). Finally, as if to mitigate the despair students might now be feeling about environmental law after encountering this last sentence so close to the end of their textbook,
Wilkinson offers the thought that, of course, environmental law is perhaps no different or worse than other types of law, at least in capitalist societies, insofar as it "provides the ordered social conditions necessary for the domination [not just of nature but also] of humanity" (p. 253).

Where does this train of provocation take us, and where does it leave us? Let me pass over Wilkinson's treatment in chapter 9 of socialism and anarchism and get to his thoughts about the liberal democracies that have produced most of the environmental law Wilkinson set out to write about in his book. It is in these regimes, after all, and particularly in Britain and Commonwealth countries, that most of Wilkinson's readers are going to be living and where they will have to decide what to make of his book and whether and how to act upon it (once the final examination is over).

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Wilkinson is not sure that liberalism is compatible with effective environmental law because of its demand that society should remain neutral as between different conceptions of the good life. "It is probably true," he writes, "that a society which is not prepared to use institutions of the state to ADVANCE a green conception of the good life will be unable to bring about the comprehensive changes in life practices that are required for sustainability" (p. 263, emphasis in original). And, with respect to democracy, Wilkinson first sees "a danger in perceiving democracy as a panacea for environmental sickness" and then cautions against understanding
democracy "as a green 'good' to be ranked alongside other green values. If and when the public's environmental consciousness is raised to a much higher standard than currently exists, it MAY be desirable to increase democratic participation in law and policy processes. Until then, at least as an intermediate stage, less rather than more democracy may be called for" (p. 264, emphasis in original). Without apparent humor or embarrassment, Wilkinson then writes on the next page that "the major weakness of democracy in the environmental context [is that] it is as likely to provide a mechanism for expression of anti-environmental sentiments as for pro-environmental values" (p. 265).

This treatment of liberal democracy sets the stage for the denouement and final provocation, which comes on page 266:

"The twentieth-century model of sovereign nation-states, each internally liberal-democratic in orientation, may give way to something as yet undefined. It is probable that if environmental law in the twenty-first century is to be effective, existing political structures will need to be infused with a synergy of ideas from socialist, capitalist and anarchistic political thought. Paradoxically, we probably need BOTH MORE AND LESS democracy-increased public opportunities for protection of local environments, but increased powers for regional international legal institutions to legislate to prohibit ecodamage. Similarly, whilst personal freedom to re-engage with nature may need to be increased (as a prerequisite to enhanced ecological sensibility) personal freedoms that depend on nature exploitation may need to be curbed" (emphasis in original).

We are very close, here, to some old, dark, brooding thoughts about environmental law and policy. William Ophuls expressed them in a very widely cited though not, in policy and law terms, very influential book (Ophuls 1977). And they were earlier prefigured by Garrett Hardin, when he warned in an essay about a tragic dynamic that could occur on a hypothetical commons that the rational pursuit of freedom to maximize personal gain could bring ruin to all and that, to save ourselves from ourselves, we should submit to mutual coercion, mutually agreed upon (Hardin 1968). Wilkinson knows a part of this intellectual history. He cites the revised edition of Ophuls in the list of further reading for chapter 9 and very early in the book, on page 7, he endorses Hardin's analysis in sweeping and entirely uncritical terms (omitting any mention, for example, of the substantial reassessment of the tragedy of the commons thesis that has emerged in the last two decades across a wide variety of academic disciplines and which is now summarized and synthesized in National Research Council 2002).

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Students ought not, however, to be provoked into re-reading and re-thinking and, perhaps, endorsing the old, gloomy chestnuts in the library of environmental studies--and I think it is reasonable to infer that that is the thrust, here, of Wilkinson's pedagogy--without asking, again, whether Wilkinson is taking his readers too glibly over the history of environmental law during the last thirty years. Against the "tendency for democracies to reject robust environmental governance" (p. 264).
Wilkinson sets the unassailable fact that they have produced an enormous volume of environmental law since the end of the 1960s. If "democracy is a route to dominance of business interests," the "business world" would presumably see to it that "only a bare minimum of environmental law came to fruition" (p. 265).

Thus, Wilkinson provokes his readers to see the failure of business to dominate environmental law making--for the last three decades and across several liberal democratic societies--as an exciting intellectual challenge, an opportunity to fill one of the great lacunae in our understanding of the post-War world. Eager as ever to step provocatively into the breach, Wilkinson quickly offers the thought that the failure might be explained by the ability of environmental interest groups to perform better politically against business interests than interest group theory would suggest. Alternatively, he offers, it might also be explained on the grounds that environmental regulation is a "vehicle for (business) self-interest," "acting as a barrier to other firms and as a mechanism for 'rent seeking'" (pp. 265-66). Business condescends to a certain amount of environmental law making safe in the knowledge that such byproducts of democratic busywork will be "strong on rhetoric, weak in practice, and…only partially enforced" (p. 266).

What is left out of the account, here, very pointedly in what is otherwise such a determinedly provocative book, is the question of whether the challenge students are being asked to engage is real and worthwhile. Wilkinson establishes no plausibility for the notion that it makes sense to try to understand the history of environmental law since 1970 in Britain, the United States, the European Union, Australia, Canada, AND New Zealand as a simple, epic struggle between "business" and "environmentalists." He does not ask whether these categories of actors can be and have been usefully disaggregated by historians, political scientists, and legal
scholars. Nor does he establish that there is sufficient similarity of political structure and processes among these liberal democracies for it to be reasonable to expect that, if one did reduce the history of environmental law to a set of epic clashes between business and environmentalists, the outcomes would be pretty much the same,
everywhere.

Overall and on balance, then, my sense is that the way Wilkinson provokes his student readers is going to have an unfortunate consequence. Students with an empirical curiosity, students who want to know more about how and why environmental law has been formed and works the way it does in diverse jurisdictions, will not be led to take up much independent inquiry into these issues, because, in the last analysis and at least in this book, Wilkinson does not make such inquiry and comprehension seem either more important as an intellectual discipline or more powerful as a starting point for social and political change than ideological ommitment. I hope Wilkinson provokes himself to pay more attention to these compelling questions of history and law before he starts his next book, or revises this one.

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REFERENCES

Applegate, John S., Jan G. Laitos, and Celia Campbell-Mohn. 2000. THE REGULATION OF TOXIC SUBSTANCES AND HAZARDOUS WASTE. New York: Foundation Press.

Arbuckle, J. Gordon, G. William Frick, Marshall Lee Miller, Thomas F. P. Sullivan, and Timothy A. Vanderver. 1979. ENVIRONMENTAL LAW HANDBOOK.
6th ed. Washington, DC: Government Institutes, Inc.

Bonine, John E. and Thomas O. McGarity. 1984. THE LAW OF ENVIRONMENTAL PROTECTION: CASES, LEGISLATION, POLICIES. St. Paul, MN: West.

Coggins, George Cameron, Charles F. Wilkinson, and John D. Leshy. 1993. FEDERAL PUBLIC LAND AND RESOURCES LAW. 3d ed. Westbury, NY: Foundation Press.

Dwyer, John P. and Marika F. Bergsund. 2002. CALIFORNIA ENVIRONMENTAL LAWS ANNOTATED. St. Paul, MN: West.

Firestone, David B. and Frank C. Reed. 1993. ENVIRONMENTAL LAW FOR NON-LAWYERS. 2d ed. South Royalton, VT: SoRo Press

Goble, Dale D. and Eric T. Freyfogle. 2002. WILDLIFE LAW: CASES AND MATERIALS. New York: Foundation Press.

Hardin, Garrett. 1968. "The tragedy of the commons." SCIENCE 162: 1243-1248.

Hunter, David, James Salzman, and Durwood Zaelke. 2002. INTERNATIONAL ENVIRONMENTAL LAW AND POLICY. 2d ed. New York: Foundation Press.

Kalo, Joseph J., Richard G. Hildreth, Alison Reiser, Donna R. Christie, and Jon L. Jacobson. 1999. OCEAN AND COASTAL LAW: CASES AND MATERIALS. 3d ed. St. Paul, MN: West.

Kubasek, Nancy K. and Gary S. Silverman. 2002. ENVIRONMENTAL LAW. 4th ed. Upper Saddle River, NJ: Prentice Hall.

Landau, Norman J. and Paul D. Rheingold. 1971. THE ENVIRONMENTAL LAW HANDBOOK. New York: Ballantine.

Mandelker, Daniel R. 1992. NEPA LAW AND LITIGATION. 2d ed. Supp. 2000. New York: Clark, Boardman, Callaghan.

Murphy, Earl Finbar. 1971. MAN AND HIS ENVIRONMENT: LAW. New York: Harper & Row.

Nagle, John and J.B Ruhl. 2002. THE LAW OF BIODIVERSITY AND ECOSYSTEM MANAGEMENT. New York: Foundation Press.

National Research Council. 2002. THE DRAMA OF THE COMMONS. Washington, DC: National Academy Press.

Ophuls, William. 1977. ECOLOGY AND THE POLITICS OF SCARCITY. San Francisco: W.H. Freeman.

Sax, Joseph L., Barton H. Thompson, John D. Leshy, and Robert H. Abrams. 2000. LEGAL CONTROL OF WATER RESOURCES: CASES AND MATERIALS. 3d ed. St. Paul, MN: West.

Schoenbaum, Thomas J., Ronald H. Rosenberg, and Holly C. Doremus. 2002.

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ENVIRONMENTAL POLICY LAW: CASES, READINGS, AND MATERIALS. 4th ed. New York: Foundation Press.

Stanford Environmental Law Society. 2001. THE ENDANGERED SPECIES ACT. Stanford, CA: Stanford University Press.

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Copyright 2002 by the author, Geoffrey Wandesforde-Smith.