[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Karin Loevy reviews Jocelyn Stacey, The Constitution of the Environmental Emergency (Hart 2018).]
—Karin Loevy, NYU School of Law
Jocelyn Stacey’s book, The Constitution of the Environmental Emergency, is an ambitious and original project in the intersection between emergency powers theory and environmental law. It suggests that we should view environmental law through the lens of emergency powers; it then spells out an approach to the rule of law that is relevant for emergencies and applies it to environmental governance.
In that the book jumps through two fire hoops. First it makes an argument about the meaning of emergency powers debates to our understanding of the rule of law, an argument that presents itself as a full-blown response to Carl Schmitt’s emergency paradox. Then, it applies this conceptual framework to debates in and about environmental law.
This is undoubtedly a great ambition and Stacey manages to walk the reader through both dangerous hoops with determination and clarity. In the following I will outline the argument and the structure of the book as well as its undoubted value. I will then ask whether and to what extent the model she suggests successfully responds to Schmitt’s critic of liberal law and politics.
All environmental issues confront lawmakers as emergencies.
Stacey opens the book with a striking truth that escapes many debates about emergency powers and about environmental law. The complex, adaptive nature of environmental systems, make it impossible to reliably eliminate in advance the possibility of an environmental catastrophe. Stacey sees this basic feature of environmental law—that it is necessarily oriented to the environmental catastrophe—as an opportunity to develop a comprehensive theory of the rule of law that can both constitute and constrain the exercise of public authority even in the event of an environmental catastrophe. On the way she shows why law is worth having in a field that is so dominated by governance, politics and economics.
On the face of it this is an unlikely path. Theories of emergency powers in the last few decades have been tightly connected to an existential paradox. Since emergencies and what may be needed to confront them cannot be expected and prepared for in advance, they require unconstrained executive discretion. Emergencies, Carl Schmitt famously claimed—and many devout liberals agreed post 9/11—are manifestations of the limits of liberal rule of law and of the beginning of political decision. Environmental lawyers should, it seems, run as far away as possible from emergency powers theory and concentrate on the regulatory aspect of the field.
But Stacey sees these debates as instructive to both critic and theory building and takes on the challenge. She focuses on the inherent emergency features of all environmental issues. Like emergencies, environmental issues strain some of our most basic assumptions about law. The inability to know in advance which issues contain the possibility of a catastrophe and what to do about it undermines the assumption that law can be equated with predetermined legal rules set out by the legislature and enforced by courts. This inherent instability requires a non-formalist approach to the rule of law that considers the conditions under which the state can be said to act with legal authority when it regulates the environment.
Stacey finds such an approach in common law constitutionalism and in deliberative democracy theory. She develops an account of how the administrative state can be governed by a democratic concept of the rule of law that respects and enables the autonomy of individuals and their capacity to actively participate in environmental governance. Following David Dyzenhaus’ theory of legality in emergencies, she positions the requirement of public justification at the center of what is essentially a legality model for environmental governance. Environmental decisions will have legal authority when they are publicly justified on the basis of core constitutional principles. But a public justification theory of the rule of law also enables individuals’ participation in the project of articulating and re-articulating core constitutional principles. The requirement of public justification helps us better understand how creative institutional design and environmental principles enable and maintain of the rule of law under conditions of an ongoing environmental emergency.
One way to understand Stacey’s account of the rule of law (or more precisely: the rule of the environmental emergency law) is as a ‘technology of humility’, a practical theory that stresses the limitation of disciplinary discourse. If Schmitt’s followers concluded that the administrative state which continuously handles threats requires an executive centered decisionist theory of law, Stacey reminds them that decisionism does not escape the emergency paradox because for each environmental decision it is impossible to predict consistently and reliably its specific consequences. She therefore suggests a theory of law that stresses humility in face of complexity: a theory of law as a collaborative endeavor of ensuring that all environmental decisions are publicly justified.
The Book’s Structure
The book is divided neatly in two parts. The first part makes the argument that emergency powers theory should instruct our thinking about the legal governance of the environment. It demonstrates how such theory may help unpack and critic rule of law assumptions implicit within existing approaches to environmental law.
Chapter one builds on ecological theory and risk sociology to show that environmental issues possess the constitutive features of an emergency (inability to foresee and contain catastrophe), it then uses Carl Schmitt’s emergency paradox as a challenge to the assumption that emergencies can be governed by law and shows how the traditional responses to the challenge: the extra-legal model and the model of accommodation both assume a formal conception of the rule of law and therefore fail to answer the challenge.
Chapter two and three introduce two competing approaches to environmental law that seem to follow the two models. Chapter two shows how the prevalent ‘environmental reform approach’—much like the model of accommodation—adheres to a formal conception of the rule of law and therefore in emergencies can only offer an appearance of legality to environmental decisions (featuring as legal grey or black holes) and cannot meaningfully constrain the exercise of administrative discretion.
Chapter three shows that the emerging literature of ‘environmental governance’—much like the extra-legal model – rightly critics emergency law as a facade of legality but since it also assumes a formal conception of the rule of law it treats law as entirely instrumental and only relevant if it serves such primal goals as ‘efficiency’, ‘transparency’, ‘participation’ and ‘accountability’. By that it replaces legal authority with managerialism, raises the underlying concern of arbitrariness and gives up on what makes law distinctive: that it respects individuals as rational agents capable of actively participating in their own system of governance.
The second part of the book constructs a democratic theory of the rule of law for the environmental emergency: a rule of law theory of public justification. Using Canadian examples of controversial natural resource and energy regulation contexts (forest law in British Columbia, inter-provincial oil pipelines and wind turbine development) it elaborates a deliberative and reasoned environmental jurisprudence that is mindful of vulnerability to catastrophic environmental harm.
Chapter four builds on Canadian administrative law jurisprudence to show how a public justification conception of the rule of law responds to Schmitt’s challenge. On the interface between common law constitutionalism and deliberative democracy—the public justification requirement both constrains and constitutes public authority and both protects and enables individual agency to actively participate in the ongoing project of democratic governance under the rule of law.
The next two chapters examine components of the public justification requirement: creative institutional design (in chapter five) and common law principles of reasonableness and fairness as informed by the environmental principles of precaution and sustainable development (in chapter six). Chapter seven uses the robust body of tribunal jurisprudence of industrial wind turbine development controversy to illustrate how public decision makers may use the components of the justification requirement to reason adequately in a context that engages multiple environmental actors and considerations.
Chapter eight concludes by connecting the rule of law theory of public justification to the constitutional context of a right to a healthy environment. It argues that a formal conception of the rule of law in Canadian Charter jurisprudence undermines environmental claims under existing provisions of the Charter and that prominent academic proposals for a Charter right neglect this deficiency and the need to respond by strengthening the common law requirement of public justification.
At the very end the book returns to the Schmittian challenge and sums up what is considered an adequate response: ‘a constitution of the environmental emergency’ that requires public officials to take seriously the ongoing possibility of an unforeseen disaster and the commitment to a democratic conception of the rule of law – a conception ‘that can only recede if we the people let it’ (p. 243).
Contribution and Critique
The argument presented in The Constitution of the Environmental Emergency is a striking contribution to both environmental law and emergency powers theory. As a legality theory of environmental law, it takes David Dyzenhaus’ sophisticated analysis of legality in the post 9/11 emergency powers debates to a practical, even operational level. Using detailed case assessments, it allows us to appreciate the role of creative institutional design, including unconventional, non-adjudicative institutions, in maintaining the rule of law under the conditions presented by environmental emergencies. The focus on environmental law as oriented towards catastrophe demonstrates how rather than exceptional powers, it is the day to day complex and diverse ecosystems of response that needs the careful attention of lawyers and judges.
For environmental lawyers the book presents a way to understand the challenge and the value of law in the project of the green state. It provides a theory that explains how environmental decisions can have both legal and democratic authority. It provides a novel interpretation to the contours of controversial environmental principles such as the precautionary principle and sustainable development. It provides guidance on how public institutions can reason adequately in light of conflicting environmental values and halfhearted legislative commitments to public justification. It also suggests a foundation for developing a meaningful constitutional environmental rights jurisprudence.
A question remains about the extent of the argument in both its subject matter and in its geography. First, many areas of governance in a modern state other than the environment – from immigration, to transnational crime, from terrorism to the economy are complex, adaptive and risk pervasive systems. In many of them, just like in relation to the environment it is impossible to fully anticipate the effects of our actions. Does this mean that we must approach all such issues from the perspective of the emergency? And if so, does the book present a potential general theory of law under conditions of governance? This question is implicitly raised in the book but not grappled with. Second, the book is profoundly Canadian, and the cases present very little space for comparison. This choice is understandable for the purpose of theory building, but it also carries some risks—especially if the theory is intended to provide an answer to Schmitt’s challenge. For Schmitt, the paradox is only a symptom of an acute lack of political coherence within the liberal state. The Canadian example seems to suggest a society that is relatively politically coherent, and that exemplifies a strong political commitment to the rule of law. And thus, in Schmittian terms—it is not law but politics that’s doing the work—if a society is politically united by a commitment to the rule of law it is unlikely to serve as a very good example for what happens when such commitment is much thinner and unstable—as it indeed is in most jurisdictions. A comparative extension to the project beyond Canada will make it possible to ask about the political conditions under which a justification conception of the rule of law can provide a constant source of meaning in the relational and ongoing process of threat management.
Suggested Citation: Karin Loevy, Review of Jocelyn Stacey, The Constitution of the Environmental Emergency, Int’l J. Const. L. Blog, Jan. 10, 2019, at: http://www.iconnectblog.com/2019/01/book-review-karin-loevy-on-jocelyn-staceys-the-constitution-of-the-environmental-emergency
 Sheila Jasanoff “Technologies of Humility: Citizen Participation in Governing Science” (2003) 41(3) Minerva 41: 223–244.