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Environmental Adjudication

Emma Lees, Ole W. Pedersen

ISBN13: 9781509944590

Published: March 2022

Publisher: Hart Publishing

Country of Publication: UK

Format: Paperback (Hardback in 2020)

Price: £32.99

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Hardback edition , ISBN13 9781509931460

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This book provides a detailed study of the role of the judiciary in environmental law. It examines theoretical issues concerning the role of judges, taking account of different legal cultures and contexts, exploring the multifaceted pressures which rest on the shoulders of courts when navigating the tensions between maintaining neutrality, resolving disputes, and providing guidance and assistance for future courts, policy-makers and decision-makers. In addition, it explores the particular challenges which arise in an environmental context, before articulating the range of environmental dispute 'models' which can and do exist in the context of the environmental law of England and Wales.

The second part of the book looks at the consequences of these findings, and explores the relationship between adjudication and coherence before concluding with an exploration of what constitutes 'good' environmental adjudication.

Subjects:: Environmental Law

Contents:: 1. Introduction; 2. Defining Adjudication: Nature and Challenges; I. Introduction; II. Theorising about Adjudication; A. Defining Adjudication; B. Winners, Losers and Polycentricity; C. Argumentation, Reason and Proof; D. Generalisable Rules; E. Institutionalised Decision-Making and Independence; III. Defining the Environment; IV. Challenging Adjudication; A. Politics, Policies and Values; B. Science and Proof; C. Shifting Regulatory Standards, a Lack of Resources and Inexperience; D. Winners and Losers in the Adversarial Process; V. Conclusions; 3. Multidimensional Environmental Adjudication; I. Introduction; II. Theory-Building; III. The Multidimensional Practice of Environmental Law; A. Playing with Blocks; B. Elements; C. Techniques; D. Avenues; E. Case Study – Dover v CPRE Kent; F. Conclusions; IV. Linearity and Inevitability; V. Level of Law-Making Power; VI. Conclusions; 4. Avenues of Environmental Law Adjudication; I. Introduction; II. Functions and Institutions; III. Statutory Appeals; IV. Judicial Review; V. Criminal Law and Sanctions; A. Judicial Criminal Adjudication; B. Administrative Criminal Adjudication; VI. Private Law; VII. Conclusions; 5. Avenues of Adjudication as Power-Broker; I. Introduction; II. Adjudication and Power; A. Fact-Finding; B. Interpretation and Creation of Norms; C. Access to Adjudicatory Fora; III. Power to Resolve Disputes; A. Constitutional Principles and Jurisdiction; B. Power Vis-à-Vis the Parties; C. Power Vis-à-Vis Other Adjudicators; D. Conclusions; IV. Powers of Evidence and Fact-Finding; V. Power to Interpret Existing Rules and Create New Rules; VI. Power to Confer and Deny Access; VII. Conclusions; 6. Avenues as Frames of Reasoning; I. Introduction; II. Forms of Reasoning; A. Reasons; B. Processes; III. Public and Private Interest; A. Private Interests; B. Public Interest; IV. The Environment; V. Level of Scrutiny; VI. Handling and Analysis of Scientific Information; A. Engagement with Methodology; B. Deference to Natural England and the Environment Agency; C. Reviewing Use of Expert Opinion; VII. Objectivity, Impartiality and Neutrality; VIII. Conclusions; 7. Avenues as Remedy Determining; I. Introduction; II. Forms of Remedy; A. Statutory Appeals; B. Judicial Review; C. Private Law; D. Criminal Law; III. Environmental Considerations and Remedies; A. Sentencing; B. Costs; C. Absence of Remedy; IV. Conclusions; 8. The Bricolage of Environmental Adjudication; I. Introduction; II. Bricolage and Incoherence; III. Understanding Good Adjudication; IV. Conclusions