Jan Laitos, Rethinking Environmental Law: Why Environmental Laws Should Conform to the Laws of Nature.

There has been a ‘proliferation of laws and legal instruments to combat environmental degradation’ over the last few decades.1 In spite of this, the state of our environment is dire. We will likely see a global temperature rise of 2.8 °C by the end of this century.2 Humanity is on track to fall short of the Paris Agreement target of keeping global warming below 2 °C (ideally at 1.5 °C).3 Our planet is ‘on course to cross multiple dangerous tipping points that will be disastrous’.4 The ‘stability and resilience’ of natural systems have been compromised.5 How have we reached this catastrophic situation? Why have our numerous environmental laws been unsuccessful in protecting us from it? In Rethinking Environmental Law, Laitos argues that environmental laws—despite representing a concerted and sincere effort on the part of lawmakers to address environmental challenges of the Anthropocene—have failed to avoid this outcome as a matter of their design. This is because, according to Laitos, they have been derived from a ‘flawed algorithm’. That is, an erroneous foundational set of assumptions and rules from which laws have been drawn (p. 4). Policies and legal instruments gleaned from this algorithm have failed to ameliorate environmental problems in part because they have been overly ‘complex and complicated’, necessitating ‘layers of administrative enforcement and endless post-hoc judicial interpretation’ (pp. 5–6). They have also been predominantly negative in emphasis, using punitive and prohibitive measures to prevent certain activities. The mainstay of environmental law has been imposition of ‘top-down commands by legislatures and agencies’ onto people. This can be contrasted with approaches wherein pro-environmental choices are driven from the ‘bottom-up’; where changes are ‘initiated by people and the demands of nature, not by an enormous bureaucratic apparatus’ (p. 5). Ground-up initiatives add much of value because, for one thing, they foreground and create space for ‘local and collective values’ and identities.6 For another, they can forge and reinforce ‘pro-environmental’