Liz Fisher

The 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.

This 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.

A discussion of the different roles risk regulatory concepts are playing in public administration and the legal implications of those roles.

Computational 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.

Paperback version (with new foreword) of 2007 publication

An 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.

336 edited book bringing together academics from the US, Australia and Europe to examine the implementation of the precautionary principle

An analysis of how 'risk' and 'risk assessment' have developed as concepts in the environmental law of different national, transnational and supranational jurisidictions.

Interdisciplinary piece looking at the relationship between frameworks for implementing the pp and understandings of good public administration

3,500 word article for a non-lawyer audience on the interface between public administration and the precautionary principle in the EU

14 000 word piece analysing the role of private actors in EC environmental law and arguing the need to see their role in public law terms

Criticism 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.

Fish!A review of recent Australian Administrative Appeals Tribunal decisions concerning AFMA`s exercise of discretion pursuant to their legislative objective of the precautionary principle.

Descriptive analysis of precautionary principle in Australia.