A Train Without Tracks: Rethinking The Place Oflaw And Goals In Environmental And Natural resources Law

摘要

As a critical mass of scholars in environmental and natural resources law respond to the work of both scientists and new governance writers, increasing emphasis has been placed on designing institutions that are flexible, capable of adapting in response to new information, and nonhierarchical. The institutional models that emerge from this thinking, however, pay limited attention to the role of goals and substantive law, instead relying on process and procedural law to achieve better environmental outcomes. This Article suggests that this is a mistake, arguing that long-term environmental protection can only be achieved by these new models if we can be sure that all of the values that are at stake in environmental protection will be adequately represented by the procedural institutions. The Article challenges whether this is possible under the current implementation of the models. It further argues that the goal of long-term environmental protection can be better achieved by bringing back a role for substantive law in the design of our institutions for environmental protection, supplementing the models.