Performative Environmental Law

Abstract

Performative law is law ‘just for show’. Where the law expresses a commitment to targets, objectives and aspirations which are, in a strict sense, legally binding, but which are ultimately hard to formally enforce, it can take on a highly symbolic or gestural appearance. Environmental law is particularly vulnerable to performativity. This is because of the nature of the environment as an object of law and because of the features found in much modern environmental legislation. This article shows this by considering examples from the Environment Act 2021, one of the foundational legislative environmental instruments adopted in recent years. Despite its potential, this article argues that key parts of the Act display a highly performative nature. The article shows that whilst this performativity is a feature of design rather than accident in the Act itself, it is a characteristic which is often found in environmental law more generally even though performativity need not necessarily be a bad thing.