Environmental Adjudication: Mapping the Spectrum and Identifying the Fulcrum

Abstract

This paper seeks to make structural sense of environmental adjudication through a comparative examination of environmental adjudication in two jurisdictions – England and Wales, and New Zealand, utilizing Michael Asimow spectrum of ‘adjudication’. Firstly we map adjudicatory pluralism in those nations in order to see if the spectrum appears coherent and the allocation of roles justified. Secondly, we consider whether an adjudicative ‘fulcrum’ exists within that spectrum, and if so what might be the relevance of that focus. Our wider rational is not necessarily to identify and learn lessons from one legal culture in order to apply in the other; rather we are using the lens of comparison to show the complexity of environmental adjudication. Our mapping exercise shows that New Zealand has responded to the challenges of environmental dispute-resolution quite deliberately with discrete regulatory and complementary institutional design, whereas England and Wales have not. In England and Wales there is a clear lack of coherence that manifests itself in a complex and diverse approach to environmental adjudication, both in terms of institutional frameworks and substantive matters of adjudication. Surprisingly, we discover that forms of adjudication mired in legal formalism are not necessarily correlative with certainty, equality, and coherence in environmental disputes, particularly when compared to adjudicatory structures that have been created to more readily respond to the nature of the problems that they address. This creates implications for both policy-development and scholarly research. The need for a dedicated environment court has been debated for many years in the UK, but is an issue that may arise again post-Brexit with the loss of the supervisory function of the European Commission and the European Court of Justice. Our analysis suggests that if the UK Government wants to foster certainty, equality, and coherence in environmental dispute-resolution, the development of a specialist environment court may need re-visiting. In terms of scholarly endeavours, this mapping exercise fills a gap in the existing literature but it also raises an important question that has deeper resonance: can Asimow’s thesis be extended to demonstrate that a clear adjudicatory focus - or lack of focus - impacts upon the role that adjudication plays in the development of environmental norms? Critically, therefore we highlight the need and lay the basis for scholarship to explore the links between adjudicatory forms and structures and the development of environmental norms.

Keywords: adjudication, administrative justice, comparative law, environmental law

JEL Classification: K32