The Constitution of the Environmental Emergency

This book argues that environmental issues constitute an ongoing emergency for the purpose of theorising the relationship between law, legality and environmental governance. Like emergencies, environmental issues possess two salient epistemic features: the inability to know in advance which issues contain the possibility of catastrophe and the inability to know in advance what to do in response to a catastrophe. These features undermine the assumption that law can be equated with predetermined legal rules set out by the legislature and enforced by the courts. By developing a framework based on the concept of the environmental emergency, the book reveals and critiques the assumptions about law contained in existing accounts of environmental law. It then offers a theory of the rule of law that requires public officials to publicly justify their decisions on the basis of core common law constitutional principles, namely reasonableness and fairness.

The book draws out connections between common law constitutionalism and theories of deliberative democracy in order to develop an account of how the administrative state can be governed by a democratic conception of the rule of law, taking into account the special challenges posed by environmental issues. The crux of this account is that it respects and enables the autonomy of individuals, understood as rational and self-determining agents, and their capacity to actively participate in environmental governance. By requiring public officials to publicly justify their decisions in terms that those subject to the law can understand and reasonably accept, this deliberative-democratic and common law constitutional account allows citizens to obey or contest the law. It thereby enables their participation in the project of articulating and re-articulating core constitutional principles.

The book elaborates how the requirement of public justification enables a deeper, more coherent understanding of how creative institutional design and environmental principles such as precaution and sustainable development enable the maintenance of the rule of law in light of the ongoing environmental emergency. It argues, moreover, that this theory of the rule of law provides a promising foundation for meaningful constitutional environmental rights adjudication. Through an examination of several Canadian examples of controversial natural resource and energy regulation contexts, this book envisions an environmental jurisprudence that is deliberative, reasoned and always mindful of our vulnerability to catastrophic environmental harm.