Environmental Adjudication

Author: Emma Lees; Ole Pedersen
Publisher: Hart Publishing
ISBN: 9781509931460

Published In: September 2020
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Paperback Edition ISBN: 9781509944590

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Contents

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This book provides a detailed study of the role of the judiciary in environmental law. It examines theoretical issues concerning the role of judges in such decision-making, taking account of different legal cultures and contexts, exploring the multifaceted pressures which rest on the shoulders of courts when navigating the tensions between maintaining neutrality, resolving disputes, and providing guidance and assistance for future courts, policy-makers and decision-makers. In addition, it explores the particular challenges which arise in an environmental context, before articulating the range of environmental dispute 'models' which can and do exist in the context of the environmental law of England and Wales.

The second part of the book looks at the consequences of these findings, and explores the relationship between adjudication and coherence before concluding with an exploration of what constitutes “good” environmental adjudication.

1. Introduction

2. Defining Adjudication: Nature and Challenges

I. Introduction

II. Theorising about Adjudication

A. Defining Adjudication

B. Winners, Losers and Polycentricity

C. Argumentation, Reason and Proof

D. Generalisable Rules

E. Institutionalised Decision-Making and Independence

III. Defining the Environment

IV. Challenging Adjudication

A. Politics, Policies and Values

B. Science and Proof

C. Shifting Regulatory Standards, a Lack of Resources and Inexperience

D. Winners and Losers in the Adversarial Process

V. Conclusions

3. Multidimensional Environmental Adjudication

I. Introduction

II. Theory-Building

III. Th e Multidimensional Practice of Environmental Law

A. Playing with Blocks

B. Elements

C. Techniques

D. Avenues

E. Case Study – Dover v CPRE Kent

F. Conclusions

IV. Linearity and Inevitability

V. Level of Law-Making Power

VI. Conclusions

4. Avenues of Environmental Law Adjudication

I. Introduction

II. Functions and Institutions

III. Statutory Appeals

IV. Judicial Review

V. Criminal Law and Sanctions

A. Judicial Criminal Adjudication

B. Administrative Criminal Adjudication

VI. Private Law

VII. Conclusions

5. Avenues of Adjudication as Power-Broker

I. Introduction

II. Adjudication and Power

A. Fact-Finding

B. Interpretation and Creation of Norms

C. Access to Adjudicatory Fora

III. Power to Resolve Disputes

A. Constitutional Principles and Jurisdiction

B. Power Vis-à-Vis the Parties

C. Power Vis-à-Vis Other Adjudicators

D. Conclusions

IV. Powers of Evidence and Fact-Finding

V. Power to Interpret Existing Rules and Create New Rules

VI. Power to Confer and Deny Access

VII. Conclusions

6. Avenues as Frames of Reasoning

I. Introduction

II. Forms of Reasoning

A. Reasons

B. Processes

III. Public and Private Interest

A. Private Interests

B. Public Interest

IV. Th e Environment

V. Level of Scrutiny

VI. Handling and Analysis of Scientific Information

A. Engagement with Methodology

B. Deference to Natural England and the Environment Agency

C. Reviewing Use of Expert Opinion

VII. Objectivity, Impartiality and Neutrality

VIII. Conclusions

7. Avenues as Remedy Determining

I. Introduction

II. Forms of Remedy

A. Statutory Appeals

B. Judicial Review

C. Private Law

D. Criminal Law

III. Environmental Considerations and Remedies

A. Sentencing

B. Costs

C. Absence of Remedy

IV. Conclusions

8. The Bricolage of Environmental Adjudication

I. Introduction

II. Bricolage and Incoherence

III. Understanding Good Adjudication

IV. Conclusions

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