Analysis: Achieving systematic improvement in environmental law

Abstract

The trial uses of the evaluation framework provided useful intelligence about the effectiveness of two legal principles of natural resource governance, and about application of the evaluation framework. The framework enabled disciplined assessment of legal principles in different governance contexts. A common structure supported comparison across jurisdictions. The principles that the teams evaluated both deal with complicated issues. The precautionary principle uses the law to manage complex scientific issues; and the principle of participation uses the law to help manage socio-political trade-offs. The research teams were able to use the evaluation framework to provide new insights into these legal norms, despite constrained circumstances. The teams identified areas for improvement in the law through the evaluations. The case studies demonstrate not only that legal effectiveness requires conceptually sound laws, but also that 'non-doctrinal' elements of legal governance must perform well. The cases show that norms for protecting and restoring the environment compete with norms that encourage its exploitation. This highlights the need to focus on the balance between harm-doing and protection in legal arrangements for natural resource governance, rather than focusing only the protective aspects of governance. Governance instruments (whether legal or otherwise) are essential but are only part of what is needed. They will not work well if conditions are hostile, or if implementation resources are not available to those responsible for implementation or people 'at the front line'. This suggests the need for more attention to economic and political feasibility issues, affecting those governing and for those being governed, in implementing legal governance.