The Liberal Limits of Environmental Law: A Green Legal Critique

Abstract

The field of environmental law embodies a deep contradiction—it is a product of the state, yet the state is the primary agent of development. This contradiction infuses state-supported resource regimes (energy, forestry, agriculture, water use) that have long been agents of environmental erosion while they have remained resistant to progressive reform. It also underpins the theoretical framework for proposed reforms today, ecological modernization. The result is that environmental law extends, rather than resolves, society’s underlying environmental “problematic.” This can now be seen in institutional responses to climate change and the “green economy.” To address this situation, the authors apply a critical new approach—green legal theory (GLT)—to analyze these historical resource regimes and today’s emerging issues. GLT does so by expanding the conception of law to address the “constitutive” or “regulatory” effects of those “system dynamics” that set the larger economic, political, and cultural conditions for social/environmental relations. In this task, GLT aims to help move “legal” analysis into the pursuit of the systemic re-formations that exist beyond the liberal limits of environmental law.