Liz Fisher, BA/LLB (UNSW), D Phil (Oxon) is Professor of Environmental Law at Corpus Christi College and the Faculty of Law. She researches in the areas of environmental law, risk regulation and administrative law. Much of her work has explored the interrelationship between law, administration and regulatory problems. Her work has an important comparative dimension and she focuses in particular on these issues in the legal cultures of the UK, US, Australia, the EU, and the WTO. Her 2007 book, Risk Regulation and Administrative Constitutionalism, won the SLS Peter Birks Prize for Outstanding Legal Scholarship 2008. Recent work has focused on the problems created by interdisciplinarity in regulatory decision-making including the use of models in environmental regulation and the operational consequences of transparency in administrative law. She won an Oxford University Teaching Award in 2009 and was shortlisted for OUP National Law Teacher of the Year Award 2011. She is General Editor of the Journal of Environmental Law and has served as the editor of the Legislation and Reports Section of the Modern Law Review.
- DOI: DOI: 10.1111/1468-2230.12251Climate change gives rise to disputes and problems not easily addressed by existing legal doctrines and frameworks. This is because it is a polycentric problem; the assessment of future climate impacts must deal with uncertainty; climate change is socio-politically controversial; and addressing climate change requires recognising a dynamic physical environment. As such, climate change can be thought of as legally disruptive in that it requires lawyers and legal scholars to reconcile the legal issues raised by climate change with existing legal orders. The legal disruption catalysed by climate change has not only led to the creation of new legal regimes but also given rise to a multitude of legal disputes that require adjudication. A study of some of these cases highlights the need for active and deliberate reflection about the nature of adjudication and the legal reasoning embedded in it when confronted by a disruptive phenomenon like climate change.ISBN: 1468-2230DOI: 10.1093/jel/eqw020ISBN: 1464-374XISBN: 9781849463447The role of generalist courts in reviewing the work of expert agencies is generally portrayed as either an institutional necessity on the one hand or a Pandora's Box on the other. Courts are expected to ensure the accountability of agency actions through their legal oversight role, yet on matters of science policy they do not have the expertise of the agencies nor can they allow themselves to become amateur policymakers in the course of their review. Given these challenges, we set out to better understand what courts are doing in their review of agency science. We conducted a qualitative examination of the courts' review of challenges to agency scientific choices in the entire set of the Environmental Protection Agency's (EPA's) National Ambient Air Quality Standards (NAAQS). Our study revealed an increasingly rigorous and substantive engagement in the courts' review of scientific challenges to the EPA's NAAQS over time that tracked the Agency's own progress in developing rigorous analytical approaches. Our findings, albeit preliminary, suggest the emergence of a constructive partnership between the courts and agencies in science policy in NAAQS cases. In overseeing scientific challenges, the courts appear to serve as a necessary irritant, encouraging the agency to develop much stronger administrative governance and deliberative decisions on complex science-policy issues. Conversely, in developing stronger decision-making processes, the resulting agency efforts have a reciprocal, positive impact on the courts' own standards for review. The courts and agencies thus appear to work symbiotically through their mutual efforts on the establishment of rigorous analytical yardsticks to guide the decision process. While our findings may be limited to the NAAQS, which likely present a best case in administrative process, the findings may still offer a grounded, normative model for imagining a constructive and even vital role for generalist courts in technically complex areas of social decision making.ISBN: 0040-4411This article is a study of the interrelationship between two intellectual impulses in Australian administrative law legal formalism and legal pluralism. It concerns the operation of jurisdictional fact review in planning and environmental cases, focusing on the line of case law that led to the High Court decision in Corporation of the City of Enfield v Development Assessment Commission (2000). The analysis shows that these two intellectual impulses are closely entwined in doctrine, but each operates on a different basis of what a fact is. Facts from a legal formalist perspective are understood as objective and hard-edged while from a legal pluralist perspective they are more likely to be conceptualised as contested and uncertain.ISBN: 2050-0394ISBN: 978 1 78100 793 8DOI: 10.1111/lapo.12006Climate change litigation is an obsessive preoccupation for many legal scholars. Three different narratives can be identified for why scholars find such litigation important to study: litigation is a response to institutional failure, legal reasoning holds authority, and litigation is a forum for the co-production of facts and social orders. The nature and consequences of these narratives are considered in the context of the first U.S. Supreme Court climate change caseMassachusetts v. EPA (2007). This analysis has implications for both how scholars understand their expertise in this area, and how they should foster it.DOI: 10.1093/jel/eqt025The polycentric, interdisciplinary, normative and scientifically uncertain nature of environmental problems leads to a body of environmental law in which it can be difficult to settle on a single frame for understanding a problem and thus to identify relevant parties, the relationships between them, and the courses of action that can be taken. Using Michel Callons terminology this can be understood as hot situations leading to hot law. In this Introduction to the Special Issue celebrating 25 years of the Journal of Environmental Law the nature of hot environmental law is considered, as is the role of environmental law scholarship.ISBN: 1867-299XISBN: 9780199560530DOI: 10.1017/S2047102511000021The concept of transnational environmental law is used descriptively and prescriptively to refer to a multitude of legal processes which are distinct from transnational law in other legal areas. Hence, the rise of transnational environmental law requires environmental lawyers to reflect on their skills and knowledge and to foster both their contributory and interactional expertise in this area. That process of fostering expertise needs to be seen in light of a number of intellectual challenges, including the necessity to engage with comparative environmental law methodology, the need to not privilege one legal system over others, the need to engage with extended legal pluralism, the importance of thinking about the role of language in legal processes, and the significance of understanding the process of co-production.A discussion of the different roles risk regulatory concepts are playing in public administration and the legal implications of those roles.ISBN: 9789264082922DOI: 10.1093/jel/eqq012Environmental models are playing an increasingly important role in most jurisdictions and giving rise to disputes. Despite this fact, lawyers and policy-makers have overlooked models and not engaged critically with them. This is a problematic state of affairs. Modelling is a semi-autonomous, interdisciplinary activity concerned with developing representations of systems and is used to evaluate regulatory behaviour to ensure it is legitimate. Models are thus relevant to lawyers and policy-makers but need to be engaged with critically due to technical, institutional, interdisciplinary and evaluative complexities in their operation. Lawyers and policy-makers must thus think more carefully about models and in doing so reflect on the nature of their own disciplines and fields.ISBN: 0952-8873ISBN: 0070-1998ISBN: 0748383XComputational models are fundamental to environmental regulation, yet their capabilities tend to be misunderstood by policymakers. Rather than rely on models to illuminate dynamic and uncertain relationships in natural settings, policymakers too often use models as answer machines. This fundamental misperception that models can generate decisive facts leads to a perverse negative feedback loop that begins with policymaking itself and radiates into the science of modeling and into regulatory deliberations where participants can exploit the misunderstanding in strategic ways. This paper documents the pervasive misperception of models as truth machines in U.S. regulation and the multi-layered problems that result from this misunderstanding. The paper concludes with a series of proposals for making better use of models in environmental policy analysis.ISBN: 1061-8651Paperback version (with new foreword) of 2007 publicationISBN: 9781849460880DOI: 10.1093/jel/eqp012Many environmental law scholars perceive environmental law scholarship as immature. We discuss why this self-perception has arisen and argue that a common theme is methodology. We argue that the subject can only mature when we face its methodological challenges head on, and we identify four particular issues that have given rise to these challenges: the speed and scale of legal/regulatory change, the interdisciplinary nature of the subject, the heavy reliance in environmental law on a diverse range of governance arrangements and the multi-jurisdictional nature of the subject. We argue that there is a need for debate in the face of these challenges and identify some starting points for that debate.ISBN: 0952-8873ISBN: 1-844721620An analysis of the merits review powers of Australian environmental courts that illustrates that such powers vary dramatically and have at least four different aspects relating to scope of review, relevant considerations, procedure and evidence.ISBN: 9781841137872DOI: 10.1080/13669870802086547The European Union's new chemicals regulation, REACH, has been one of the most controversial pieces of legislation in EU history. Indeed, the debate over REACH is akin to a 'perfect storm' in that the intense controversy over it has been caused by three regulatory aspects of the regime. First, REACH privatizes information collection, provision and assessment. Second, REACH represents a significant application of sustainable development and in so doing, redefines the conditions on which the EU chemicals market operates. Third, REACH will inevitably have inter-jurisdictional impacts for both supranational and national legal cultures including trade law implications, REACH being a template for international initiatives, it being a policy/legal irritant in other jurisdictions, and it providing information for public and private action in other jurisdictions. A charting of these different aspects of the regime not only provides a more nuanced account of REACH but also provides a clearer understanding of the challenges of regulating environmental and health risks in an era of market globalizationISBN: 1366-9877ISBN: 9781841130330ISBN: 1841136654336 edited book bringing together academics from the US, Australia and Europe to examine the implementation of the precautionary principleISBN: 978 1 845427023An analysis of how 'risk' and 'risk assessment' have developed as concepts in the environmental law of different national, transnational and supranational jurisidictions.ISBN: 1-84113-544-5Interdisciplinary piece looking at the relationship between frameworks for implementing the pp and understandings of good public administrationISBN: 97800000000003,500 word article for a non-lawyer audience on the interface between public administration and the precautionary principle in the EUISBN: 0273-122314 000 word piece analysing the role of private actors in EC environmental law and arguing the need to see their role in public law termsISBN: 291339728XDOI: 10.1093/ojls/24.3.495ISBN: 1464-3820ISBN: 0033-3565Criticism of "precaution spotting" because it ignores legal nature of the precautionary principle and role of legal culture.Principle gives rise to concerns of administrative constitutionalism and constitutional sovereignty.ISBN: 1023-263XISBN: 1473-7795Fish!A review of recent Australian Administrative Appeals Tribunal decisions concerning AFMA`s exercise of discretion pursuant to their legislative objective of the precautionary principle.ISBN: 1320-5323Descriptive analysis of precautionary principle in Australia.ISBN: 1874698236DOI: 10.1093/jel/13.3.315ISBN: 1464-374X
Environmental Law, Risk Regulation, Administrative Law, EU Law
Options taughtAdministrative Law, European Union Law, Constitutional Law (Senior Status), Environmental Law, Regulation