'The Constitution of the Environmental Emergency' (Jocelyn Stacey, Hart Publishing 2018)

You could be forgiven for mistaking this book as something from science fiction as Stacey's theoretical contribution centres around black and grey holes. [1]  Not the black hole where gravity is so strong that not even light can escape, but legal black holes. They arise in the author's discussion of the environmental emergency; whereby environmental issues are likened to the traditional emergency. Through this novel lens, The Constitution of the Environmental Emergency raises interesting discussion on how we see environmental issues, how we regulate them, and their relationship with the rule of law.

Some environmental issues are emergencies in the traditional sense of the word: hurricanes and oil spills being strong examples. [2] These traditional environmental emergencies make the headlines in the same way that socio-political emergencies do; and we, as humans, engage with them as emergencies. Other environmental emergencies are not so clear. Take the example of the Mountain Pine Beetle, a species that has ravaged the forests of British Columbia - "hardly a newspaper carried the story. It was, after all, just a story about trees". [3] It is a pertinent quote that begins Stacey's discussion of the environmental emergency and how the emergency framework should not be limited to environmental issues that correspond to the traditional notions of an emergency. Instead, it is argued that all environmental issues are emergencies due to their "complex, adaptive nature", [4] and that they are "emergencies in miniature". [5] What is not so clear in the book is exactly what would be counted as an environmental issue and where the line would be drawn. Most actions and activities have some level of associated environmental consequences, and it would have been beneficial to have seen some of this discussed in the book.

The first chapter in the book is therefore dedicated to outlining the environmental emergency, which is characterised by two features: "the inability to predict which issues have catastrophic potential and the inability to know in advance how to respond should a catastrophe occur". [6] The argument relates to Schmitt's concept of the emergency where it is impossible to govern unforeseeable, extreme threats by law. [7] To overcome this, power and discretion become concentrated in the executive. The practical consequences of such power and discretion beat against the formal conception of the rule of law: that we either use extra-legal powers or accommodate emergencies within the existing legal order. [8] The consequences of the consequences being that we are left with legal black and grey holes, [9] which go against the rule of law. [10]

The remainder of Part I of The Constitution of the Environmental Emergency lays the groundwork for the book's theoretical contribution in Part II: that discretionary power can sit comfortably with the rule of law if there is a public justification for the decision. [11] Chapter two therefore considers the viewpoint of environmental reformers, whose concern is that "unfettered discretion is consistently exercised in a way that undermines environmental protection". [12] Chapter three considers environmental governance, which Stacey argues, correctly approaches environmental issues from the emergency perspective. [13] Yet, even environmental governance has not, in the author's eyes, managed to (or even tried to) reconcile the rule of law with an environmental emergency approach. [14] That is, Stacey argues, "the task of the remainder of the [this] book". [15]

That task is tackled in Part II, entitled: "Responding to the Environmental Emergency". It is in Chapter 4 that I think the crux of this book's argument can be found, whereby the author attempts to provide "a coherent and defensible rule-of-law response to the environmental emergency". [16] Drawing on the well-known, but dense work of Fuller, [17] Dicey, [18] and Dyzenhaus; [19] Stacey argues that a public justification is enough to bring the discretion that the environmental emergency entails within the scope of the rule of law. [20] What is meant by this is that the black and grey holes raised by emergency discretion are dealt with on the understanding that decisions are publicly justified in lines of core constitutional principles. [21] All that is needed is a little 'institutional innovation'. [22]

These core principles, as the rest of the book then largely explores, are the common law principles of reasonable and fairness. [23] However, the context of the environment brings another dimension to the mix: the role of environmental principles. [24] The role of environmental principles in environmental law (and international environmental law for that matter) forms the backbone of many an undergraduate Environmental Law course; but Stacey calls for a more defined role for these principles. Through the lens of Canada's pipeline dispute, it is argued that environmental principles should feed into our understanding of reasonable and fair. [25] This is then expanded to consider the role of the Ontario Environmental Review Tribunal in Chapter seven, where Stacey applies the core ideas of reasonableness and fairness to the body that has been responsible for mediating complex wind turbine cases where public justification has been called into question. [26] Overall, in relation to public justification and the rule of law, the book argues:

Reasonableness requires public officials to offer intelligible reasons that justify the outcome on the basis of the relevant statutory considerations while always reflecting the common law constitution, which is protective of legal subjects as responsible agents who are capable of reasoning with the law. [27]

This is the author's response to Schmitt's challenge: that law cannot respond to emergencies. Therefore, this book makes an interesting and novel theoretical contribution in the sense that this can be overcome by public justification. The final chapter of the book appears a little out of place, if not tacked onto the rest of the book. It considers the theory's potential contribution to an environmental right. [28]

Overall, the book is well written and provides a unique and alternative approach to environmental issues. The environmental emergency has been well-reasoned by the author. However, I cannot help but feel that the lack of discussion on what exactly would fall within the remit of an environmental emergency detracts somewhat from the excellent theoretical discussion that takes place. Would the footpath erosion detailed in footnote 1 be an environmental issue warranting an emergency approach? In addition, the author's interesting argument is sometimes drowned out by the dense legal theory that underpins it. This high level of legal theory renders the book rather impenetrable to the novice reader, and so would not be suitable for a newcomer to the field. However, for those who are looking for an alternative viewpoint to environmental regulation or governance, then The Constitution of the Environmental Emergency does provide a good opportunity to think outside of the box.

[1] Cue all the lawyers running for the hills now. Let us not start the debate just yet as to whether footpath erosion could/ should be considered an environmental emergency.

[2] For example, in 2018, the aftermath of Hurricane Florence and Hurricane Michael was widely reported in the media, see for instance: https://www.theguardian.com/us-news/hurricane-michael last accessed 17 December 2018. Biologists have responded to the 2018 Newfoundland Oil Spill by saying that the "scale of devastation may never be known": https://www.theguardian.com/world/2018/nov/20/newfoundland-oil-spill-latest-damage-wildlife last accessed 17/12/2018 ; see also https://www.cbc.ca/news/canada/newfoundland-labrador/damage-unknown-searose-spill-1.4911091  last accessed 17/12/2018.

[3] A Nkiforuk, 'The Empire of the Beetle' (Greystone Books, 2011), 74 cited in Stacey, p15. Stacey covers the example in more detail in Chapter 5, from page 116.

[4] Stacey, p.15

[5] Stacey, p.26

[6] Stacey, p.38

[7] See C Schmitt, Political Theology (MIT Press 1985)

[8] Stacey, see pp 27 and 29.

[9] Stacey lifts the use of this terminology from the work of Dyzenhaus, p32: "He [Schmitt] predicted that those committed to the rule of law will be unable to counternance the real nature of emergencies. Instead, they will attempt to pretend that executive discretion is governed by law - even when it is clear the executive wields discretionary power. To borrow Dyzenhaus' helpful terminology, we now face the problem of multiple legal black holes and 'legal grey holes'" [clarification added].

[10] Stacey draws upon the well-known work of Dicey as a foundation to the concept of the rule of law: AV Dicey, Introduction to the Study of the Law of the Constitution (10th Edition) (Macmillan Company of Canada 1959).

[11] There is a useful summary of the theoretical argument put forward by Stacey on pages 241-243.

[12] Stacey, p 41.

[13] Stacey, Ch.3

[14] Stacey, 88

[15] Stacey, 88

[16] Stacey 93.

[17] LL Fuller, The Morality of Law (Yale University Press 1969).

[18] AV Dicey, Introduction to the Study of the Law of the Constitution (10th Edition) (Macmillan Company of Canada 1959).

[19] D Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (CUP 2006)

[20] Stacey p111.

[21] Stacey, p111.

[22] Institutional innovation is covered in chapter 5 and looks specifically at the British Columbia Forest as a case study.

[23] Stacey,

[24] In particular, Stacey considers the principles of sustainable development and the precautionary principle, Ch.6.

[25] Stacey, p.165.

[26] Stacey, p.185.

[27] Stacey p.205.

[28] Stacey ch.8.