Journal of Environmental Law 25:3 The Author 2013. Published by Oxford University Press.

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doi:10.1093/jel/eqt025 Advance Access published on 7 October 2013
.......................................................................

An Introduction by the General EditorSpecial

Issue celebrating the 25th Anniversary of the Journal
of Environmental Law
Environmental Law: Looking Backwards, Looking
Forwards

Environmental Law as Hot Law

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Elizabeth Fisher*

Abstract
The 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.

Keywords: environmental law, legal scholarship, framing

Environmental law is hot law. I do not mean by this that it is fashionable in

a zeitgeist sort of way. Nor do I mean it is intensely alluring. Nor am I making
a statement about global temperatures. Rather, my point is that what we
commonly understand as environmental law is directly concerned with
hot situations in which the agreed frames, legal and otherwise, for how we
understand and act in the world are in a constant state of flux and

* General Editor, JEL, 2013-present and Reader in Environmental Law, Faculty of Law, University
of Oxford, (liz.fisher@law.ox.ac.uk). I would like to thank Sanja Bogojevic, Chris Hilson,
Dhvani Mehta, Eloise Scotford and Steven Vaughan for their very perceptive comments on a
previous draft of this comment. Any errors or omissions remain my own.

...........................................................................
Journal of Environmental Law 25:3 (2013), 347^358
348 Elizabeth Fisher

contestation.1 As such, environmental law stands in stark contrast to those

areas of law where actors, interests, preferences, and thus rights and responsi-
bilities, can be easily identified and thus workable frames of legal action can
operate.2 Environmental law is thus a subject in which reassured certainties
give way to tormented complexities.3
Saying this might sound a negative way to start a Special Issue dedicated
to celebrating 25 years of the Journal of Environmental Lawwho wants to be
tormented? Furthermore, in light of the persistence of many environmental
problems, focusing on scholarly torment appears deeply self-indulgent.4
But without understanding the hot nature of environmental problems and
thus environmental law, there can be no understanding of the challenges inher-
ent in the practice and study of environmental law. Thus in this short introduc-

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tion to this Special Issue of the Journal, I want to consider the question of
heat and in doing so show the importance of scholarship generally and the
Journal specifically. I conclude by considering the articles in this Special Issue.

1. Hot Problems and Hot Law

Environmental law is often understood to be a marginal subject, dealing with
issues and problems that have been side-lined by mainstream decision-
making processes. Marginality is a multi-dimensional concept,5 but the popu-
larity of it as a way to explain environmental law is best illustrated by two
distinct but related narratives that are commonly used to explain why we
need environmental law. The first is Hardins tragedy of the commons6
environmental problems are understood as a product of rational self-interest
degrading common resources and environmental law stops this occurring,
through a mixture of state action and through making the protection of the
commons a rational and self-interested thing to do.7 Another related but dis-
tinct narrative is that environmental law addresses market failures by forcing
the internalisation of costs that have been externalised.8 There is much truth

1 Michel Callon, A n Essay on Framing and Overflowing: Economic Externalities Revisited by

Sociology in Michel Callon (ed), The Laws of the Markets (Blackwell 1998) 260^1.
2 ibid 261.
3 ibid 262.
4 Marilyn Strathern, Commons and Borderlands: Working Papers on Interdisciplinarity,
Accountability and the Flow of Knowledge (Sean Kingston Publishing 2004) 5.
5 Elizabeth Fisher and others, Maturity and Methodology: Starting a Debate about
Environmental Law Scholarship (2009) 21 JEL 213, 221^23.
6 Garrett Hardin, The Tragedy of the Commons (1968) 162 Science 143.
7 Sanja Bogojevic, Ending the Honeymoon: Deconstructing Emissions Trading Discourses
(2009) 21 JEL 443; William Howarth, The Interpretation of Precaution in the European
Community Common Fisheries Policy (2008) 20 JEL 213; Vicki Waye and Christina Son,
Regulating the Australian Water Market (2010) 22 JEL 431.
8 Andrew White, Decentralised Environmental Taxation in Indonesia: A Proposed
Double Dividend for Revenue Allocation and Environmental Regulation (2007) 19 JEL
 Environmental Law as Hot Law 349

in these narratives but implicit in them is often an assumption that it is rela-

tively easy to identify the starting point and frame for analysis in thinking
about environmental problems and environmental law.
But reading through the past 25 years of the Journal it is clear that few
scholars find that identification process an easy one. Tragedies of the com-
mons and externalities are not objects quietly sitting out in the world with a
label on them waiting to be addressed.9 They can be difficult to identify, and
disentangling them from other social, economic and political processes
is often impossible.10 Figuring out what institution or process failed or
succeeded is not easy.11 Identifying what is of value,12 and whose views
count, is also problematic.13 Even when there is agreement about a particular
end, knowing how to achieve it can be difficult. Not only are the legal choices

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plentiful,14 but each of them are complex.15 Sir Robert Carnwath, as he then
was, noted in relation to environmental litigation that he was struck by
the contrast between the relative simplicity of the basic objectives, and the
complexity of machinery by which we try to give them effect.16 Thus while
narratives concerning tragedies and externalities may seem simple, the
operation and nature of environmental law is not.
The reason for this can be identified by taking a step backwards and reflect-
ing on the bigger picture. In an essay exploring the idea of economic external-
ities and markets, Michel Callon has noted:
For calculative agents to be able to calculate the decisions they take, they
must at the very least be able to a) draw up a list of possible world states
b) hierarchize and rank these world states; c) identify and describe the
actions required to produce each of the possible world states. Once these
actions have become calculable, transactions and negotiations can take
place between different agents.17

43; David Weisbach, Carbon Taxation in the EU: Expanding the EU Carbon Price (2012)
24 JEL 183.
9 Bogojevic (n 7) 447 and Chris Hilson, Information Disclosure and the Regulation of Traded
Product Risks (2005) 17 JEL 305, 316.
10 Jennifer Lee and Supriya Garikipati, Negotiating the Non-negotiable: British Foraging Law in
Theory and Practice (2011) 23 JEL 415; Edesio Fernandes, Law, Politics, and Environmental
Protection in Brazil (1992) 4 JEL 41; and Bogojevic (n 7).
11 Francois du Bois, Water Rights and the Limits of Environmental Law (1994) JEL 73, 84 and
Gerd Winter, The Climate is No Commodity: Taking Stock of the Emissions Trading System
(2010) 22 JEL 1.
12 Cecelia Kye, Environmnetal Law and the Consumer in the European Union (1995) 7 JEL 31.
13 Chris Hilson, Greening Citizenship: Boundaries of Membership and the Environment
(2001) 13 JEL 335 and Lucy Finchett-Maddock, Responding to the Private Regulation of
Dissent: Climate Change Action, Popular Justice and the Right to Protest (2013) 25 JEL 293.
14 Neil Gunningham and Duncan Sinclair, Policy Instrument Choice and Diffuse Source
Pollution (2005) 17 JEL 51.
15 Weisbach (n 8) and Lovleen Bhullar, Enusring Safe Muncipal Water Disposal in Urban India:
Is There a Legal Basis? (2013) JEL 235.
16 Sir Robert Carnwath,Environmental Litigation - A Way Through the Maze? (1999) 11 JEL 3, 3.
17 Callon (n 1) 260.
350 Elizabeth Fisher

This can be thought as a business as usual model where actors and actions
operate within a settled and solid framework. Law is clearly playing a role in
creating those frameworks and thus possible world states whether it is
through creating frames for agreement (eg contract law), frames for conse-
quences of actions (eg tort law and criminal law) or creating networks of
responsibility (eg company law and public law). Any legal frame will be imper-
fect and does create what Callon calls overflowsno frame controls and con-
tains everything.18 An externality, whether positive or negative, is an example
of an overflow but the assumption is that it can be recognised and managed.19
This is what Callon describes as a cold situation.20 Indeed, many areas of law
can be thought of as coldcontract law and some aspects of tort law for
example.21 This is not to say there are not overflows and/or debate and

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disagreement. Rather overflows and disagreement are in a context where
actors are identified, interests are stabilised, preferences can be expressed,
responsibilities are acknowledged and accepted.22 This means that actors can
calculate the costs and benefits of various actions and negotiate and/or act on
that basis.23 Hot situations in contrast are those where:
everything becomes controversial: the identification of intermediaries
and overflows, the distribution of source and target agents, the way
effects are measured. These controversies which indicate the absence
of a stabilised knowledge base, usually involve a wide variety of actors.
The actual list of actors, as well as their identities will fluctuate
in the course of a controversy itself and they will put forward mutually
incompatible descriptions of future world states.24
It is fair to say that the above is a good description of much of environmen-
tal law. This is not to say that hot situations are not relevant to other areas of
lawaspects of tort law can be thought of as hot.25 Nor it is to say all environ-
mental problems have the same degree of heat26statutory nuisance is com-
plex but the issues and actors are more readily identifiable.27 Rather,
identifying environmental problems as hot makes clear that many environ-
mental law issues are not just controversial, but that the controversies are
structural and foundational. There is difficulty in identifying source and

18 ibid 248^50.
19 Marilyn Strathern, Externalities in Comparative Guise (2002) 31 Economy and Society 250.
20 Callon (n 1) 261.
21 Indeed Callon recognises aspects of contract law as being cold; ibid 255.
22 ibid 261.
23 ibid 255, 259, 261.
24 ibid 260.
25 JE Penner, Nusiance and the Character of the Neighbourhood (1993) 5 JEL 1 and Peter Cane,
A re Environmental Harms Special? (2001) 13 JEL 3.
26 Callon (n 1) 261.
27 Rosalind Malcolm and John Pointing,Statutory Nuisance: The Sanitary Paradigm and Judicial
Conservatism (2006) 18 JEL 37.
 Environmental Law as Hot Law 351

target agents as there is a wide group of actors.28 There is a lack of a stabilised

knowledge base.29 There are mutually incompatible understandings of the
world.30 The states of being hot and cold are relative and situations and prob-
lems can be hot and cold to varying degrees. With that said it can broadly be
said that as an area of legal practice and study the cold state of mainstream
contract law bears very little relationship to the hotstate of environmental law.
As that is the case, socio-political conflict, polycentricity, interdiscplinarity
and scientific uncertainty are not just interesting features of environmental
problems to note in passing but are part of the operational reality of the sub-
ject.31 The actions of actors will be shaped by different normative concerns.32
Polycentricity renders bi-lateral understandings of legal relationships in inter-
national and domestic law problematic.33 Scientific uncertainty means action

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cannot be undertaken on the basis that an environmental problem is well
understood, or that the consequences of responses to that problem can be
easily predicted.34 Inter-disciplinarity means that as lawyers we cannot think
or operate in splendid isolation.35 More importantly, understanding environ-
mental problems as hot situations draws our attention to the fact that the
process of framing environmental issues and thus environmental law itself is
often chaotic;36 there are multiple frames that might apply, any frame is con-
troversial, and environmental problems may be constantly reframed in the
search for a better approach.37

28 Dawn Oliver and Andrew Waite, Controlling Neighbourhood Noise - A New Approach (1989)
1 JEL 173.
29 Elizabeth Fisher, Pasky Pascual and Wendy Wagner, Understanding Environmental Models in
Their Legal and Regulatory Context (2010) 22 JEL 251.
30 Hilson (n 13).
31 Note the importance of these were all considered in the first article published in the Journal:
Ludwig Kramer, The Open Society, Its Lawyers and Its Environment (1989) 1 JEL 1.
32 Finchett-Maddock (n 13); Jan Jans and Albert Marseille, The Role of NGOs in Environmental
Litigation against Public Authorities: Some Observations on Judicial Review and Access to
Court in the Netherlands (2010) 22 JEL 373; and Olivia Woolley, Trouble on the Horizon?
Addressing Place-based Values in Planning for Offshore Wind Energy (2010) 22 JEL 223.
33 Lavanya Rajamani, Public Interest Environmental Litigation in India: Exploring Issues of
Access, Participation, Equity, Effecitveness and Sustainability (2007) 19 JEL 293 and
Antonio Cardesa-Salzmann, Constitutionalising Secondary Rules in Global Environmental
Regimes: Non-Compliance Procedures and the Enforcement of Multilateral Environmental
Agreements (2012) 24 JEL 103.
34 Which is why the precautionary principle has been so significant: See Owen McIntyre and
Thomas Mosedale, The Precautionary Principle as a Norm of Customary International Law
(1997) 9 JEL 221 and Elizabeth Fisher, Is the Precautionary Principle Justiciable? (2001) 13
JEL 317.
35 David Fisk, Environmental Science and Environmental Law (1998) 10 JEL 3; Susan Owens,
Experts and the Environment - The UK Royal Commission on Environmental Pollution
1970-2011 (2012) 24 JEL 1; and Fernandes (n 10).
36 Callon (n 1) 261.
37 William Howarth, The Progression Towards Ecological Quality Standards (2006) 18 JEL 3;
Philippe Cullet, Water Law in a Globalised World: the Need for a New Conceptual
Framework (2011) 23 JEL 233; and Gerd Winter, The Rise and Fall of Nuclear Energy Use in
Germany: Processes, Explanations and the Role of Law (2013) 25 JEL 95.
352 Elizabeth Fisher

Law frames environmental problems through a range of different processes.

That framing process may be implicit in the legal status quo,38 but in the
modern era it has most obviously occurred through legislative reform. The
interventionistic orientation39 of this legislation is not just because it inter-
venes in the economy, but because it provides a new frame for understanding
environmental problems and their solutions. Legislation may create new cate-
gories and classifications as a way of regulating behaviour. For example if
something is classified as waste, a different set of legal implications will
follow than if it is not.40 The role of framing can be seen in the micro-process
of law reform debates,41 but is also reflected in the fact that the macro-history
of much of environmental law has been a history of searching for the best
legal frameworks.42 It is also the case that such frames, when included in legis-

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lation are often problematic from the outset.43
What is best is not of course an objective criterion and determining what is
best is shaped by a mixture of normative concerns, politics, and the reality
that there needs to be some response. At its simplest this search is shaped by
the challenge that if a problem is framed too narrowly, too broadly, or wrongly
the solution will suffer from the same defects.44 At its more complex, and to
paraphrase, it is due to the fact that behind every environmental law is a
theory of society.45 All this means that the legislative development of environ-
mental law is not linear. On-going legislative reform in areas such as water46
and industrial pollution control47 are exercises in framing and reframing
where the process of reframing can result in the re-conceptualising of the
nature of a problem, who the relevant actors are, and what should be done.
But as the pages of the Journal also make clear, the activity of framing is not
just occurring in the legislative realmit is also occurring in other fora. The
judicial is the most obvious. Courts and tribunals may find themselves framing

38 In different ways. See Leonor Moral Soriano, Environmental Wrongs and Environmental
Rights: Challenging the Legal Reasoning of English Judges (2001) 13 JEL 297; John Alder,
Environmental Impact Assessment - The Inadequacies of English Law (1993) 5 JEL 203;
and Penner (n 25).
39 Gerd Winter, Perspectives for Environmental Law - Entering the Fourth Phase (1989)
1 JEL 38, 41.
40 Eloise Scotford,Trash or Treasure: Policy Tensions in EC Waste Regulation (2007) 19 JEL 367.
41 Hugh Rossi,Paying For Our Past - Will We? (1995) 7 JEL 1 and Tim Jewell and Jenny Steele,UK
Regulatory Reform and the Pursuit of Sustainable Development: The Environment Act
1995 (1996) 8 JEL 283.
42 Howarth (n 37).
43 Bhullar (n 15).
44 Sheila Jasanoff, The Practices of Objectivity in Regulatory Science in Charles Camic, Neil
Grocc and Michele Lamont (eds), Social Knowledge in the Making (University of Chicago Press
2011) 179.
45 Carol Harlow and Richard Rawlings, Law and Administration (3rd edn, CUP 2009) 1.
46 William Howarth,Water Pollution: Improving the Legal Controls in Retrospect (2008) 20 JEL
3 and Howarth (n 37).
47 Ben Pontin,Integrated Pollution Control in Victorian Britain: Rethinking Progress within the
History of Environmental Law (2007) 19 JEL 173.
 Environmental Law as Hot Law 353

environmental problems in making sense of legislative schemes,48 reconciling

different areas of the law,49 building coherent bodies of doctrine50 and/or enga-
ging in the process of judicial review.51 Enforcement practices,52 regulatory
strategies,53 and administrative policy54 are also all processes contributing
to how environmental problems are legally framed and reframed. It is also
the case that even when frames relate to the same issue they may develop
differently in these different fora.55
Taking in the bigger picture it can also be seen that the process of
developing those frames is not made any easier by the fact that both environ-
mental problems and legal developments often cut across legal cultures.56
Furthermore, framing may be occurring in areas of legal practice that are not
directly concerned with environmental problems,57 and at the interstices

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48 Waste being a prime example see Ilona Cheyne and Michael Purdue, Fitting Defintion to
Purpose: The Search for a Satisfactory Definition of Waste (1995) 7 JEL 149; Stephen
Tromans, EC Waste LawA Complete Mess? (2001) 13 JEL 133; Scotford (n 40); Vanessa
Edwards, A Review of the Court of Justices Case Law in Relation to Waste and
Environmental Impact Assessment: 1992-2011 (2013) 25 JEL 515; and Justine Thornton,
Twenty Five Years of Domestic Case Law (2013) 25 JEL 531.
49 Patrick Bishop and Victoria Jenkins, Planning and Nuisance: Revisiting the Balance of Public
and Private Interests in Land-Use Development (2011) 23 JEL 285.
50 Edwards (n 48) and Thornton (n 48) both discussing waste law and environmental impact
assessment.
51 Patrick McAuslan, The Role of Courts and Other Judicial Type Bodies in Environmental
Management (1991) 3 JEL 195 and Ludwig Kramer, Public Interest Litigation in
Environmental Matters Before European Courts (1996) 8 JEL 1.
52 Carolyn Abbot, The Regulatory Enforcement of Pollution Controls: The Australian
Experience (2005) 17 JEL 161.
53 Neil Gunningham, Environmental Law, Regulation and Governance: Shifting Architectures
(2009) 21 JEL 179; Colin Reid, The Privatisation of Biodiversity? Possible New Approaches to
Nature Conservation Law in the UK (2011) 23 JEL 203; Ruth Khalastchi and Halina Ward,
New Instruments for Sustainability: An Assessment of Environmental Agreements Under
Community Law (1998) 10 JEL 257.
54 Derek Osborn, Some Reflections on UK Environmental Policy 1970-1995 (1997) 9 JEL 3;
Maria Lee and others, Public Participation and Climate Change Infrastructure (2013) 25 JEL
33; and Elizabeth Kirk and Kirsty Blackstock, Enhanced Decision Making: Balancing Public
Participation against Better Regulation in British Environmental Permitting Regimes (2011)
23 JEL 97.
55 Ludwig Kramer, The European Commissions Opinions under Article 6(4) of the Habitats
Directive (2009) 21 JEL 59 and Donald McGillivray, Compensating Biodiversity Loss: The EU
Commissions Approach to Compensation under Article 6 of the Habitats Directive (2012) 24
JEL 417.
56 In many different ways. See Sharon Turner,Northern Irelands Consent to the Climate Change
Act 2008: Symbol or Illusion? (2013) 25 JEL 63; Veerle Heyvaert, Regulatory Competition
Accounting For the Transnational Dimension of Environmental Regulation (2013) 25 JEL 1;
Daniel Farber, The Challenge of Climate Change Adaptation: Learning from National
Planning Efforts in Britain, China, and the USA (2011) 23 JEL 359; and Anatole Boute,
Renewable Energy Federalism in Russia: Regions as New Actors for the Promotion of Clean
Energy (2013) 25 JEL 261.
57 Peter Kunzlik, Green Publc Procurement - European Law, Environmental Standards and
What to Buy Decisions (2013) 25 JEL 173 and Christian Schall, Public Interest Litigation
Concerning Environmental Matters before Human Rights Courts: A Promising Future
Concept? (2008) 20 JEL 417.
354 Elizabeth Fisher

between different legal areas.58 This occurs because of the polycentricity,

normativity, interdisciplinarity and scientific uncertainty embedded in hot
situations. The hot nature of environmental problems is thus creating a hot
body of law.

2. The Role of Environmental Law Scholarship

All of the above begins to explain the torment of environmental lawyers.
The development of environmental law has not resulted in the creation of
a solid frame for the subject in which interests, rights, responsibilities, and
overflows can be identified and managed. The growing attention given to

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fragmentation is a reflection of this,59 as is the fact that the umbrella of
environmental law covers a wide number of topics. Identifying the hot
nature of the subject also begins to explain the roles that scholarship does
and can play. Three overlapping roles are particularly striking. In all cases,
scholarship is not just an act of passive observation. Scholarship is also part
of the framing process.60
The first role for scholarship is one of rigorous description. On the one
hand mere description is not scholarship,61 but on the other, in hot situations,
thorough accounts of the legal landscape are important. Scholarship may
show how institutions and legal processes are overlooked,62 mainstream
accounts are too narrow,63 practices are unrecognised,64 and the complexity
of a body of law underestimated.65 It is also the case that as Strathern notes
information is constantly bursting its frames in hot situationsthere is
information overload and scholarship can provide an important role in
managing that overload.66
Second, in hot situations, a measured search and identification of possible
frames, and their strengths and weaknesses, becomes important. Thus

58 Cane (n 25).
59 Cinnamon Carlarne, Good Climate Governance: Only a Fragmented System of International
Law Away? (2008) 30 Law And Policy 450.
60 Bogojevic (n 7) and David Driesen and Sanja Bogojevic, Economic Thought and Climate
Disruption: Neoclassical and Economic Dynamic Approaches in the USA and the EU (2013)
25 JEL 463.
61 Fisher and others (n 5) 223.
62 Alan Boyle, Saving the World? Implementation and Enforcement of International
Environmental Law Through International Institutions (1991) 3 JEL 229 and Duncan
French, Finding Autonomy in International Environmental Law and Governance (2009)
21 JEL 255.
63 David Freestone, The Road From Rio: International Environmental Law After the Earth
Summit (1994) 4 JEL 193.
64 Patrick Ky,Qualifications,Weight of Opinion, Peer Review and Methodology: A Framework for
Understanding the Evaluation of Science in Merits Review (2012) 24 JEL 207.
65 Patricia Ryan, Court of Hope and False Expectations: Land and Environment Court 21 Years
On (2002) 14 JEL 301.
66 Strathern (n 19) 251.
 Environmental Law as Hot Law 355

scholarship becomes a forum in which there can be a rigorous analysis of a

problem and the different ways it can be characterised. Flowing on from that
will be different understandings of that problem, its legal implications, and
ways to move forward.67 Law as a legal discipline thus becomes important in
this search because it provides a set of regulated knowledge practices.68 This
is perhaps what Kramer meant when he described environmental lawyers
as having an assessment capacity.69 That capacity derives from law as a
discipline.70 In saying that, it is of course important to stress the rich diversity
of methods encompassed under the heading legal scholarship.71
Third, scholarship is a site for starting and having conversations about these
different frames away from the arenas in which there are pressures to find a
quick solution to pressing problems.72 Scholarship is rarely a magic bullet

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whose impact will solve an environmental problem instantaneously (or
at least within a short time scale). The relationship between scholarship and
a solution is a far more nuanced one.73 This is not a negative feature of schol-
arship. Rather it reflects the way in which scholarship is a forum in which
the complexity of hot situations can be untangled. Indeed, one might think
of scholarship as acting as a thermostatidentifying heat and provided ways
of thinking about it and addressing it.
The Journal has played all three roles in its 25-year history. In doing so it
has brought together both those in practice and those in academia. The
Journal has published many thoughtful and rigorous accounts of law and
environmental problems. Within its pages there have been many articles that
have explored the different ways in which environmental problems can be
framed. Throughout the years there have been many on-going conversations
that display thermostatic tendencies.74 Overall the Journal has thus been
dedicated to exploring the hot nature of environmental law.

3. Looking Backwards, Looking Forwards

The importance of the Journal and its commitment to that process of
exploration is celebrated in this Special Issue. Gathered here are comments

67 Judith Jones, Regulatory Design for Scientific Uncertainty: Acknowledging the Diversity of
Approaches in Environmental Regulation and Public Administration (2007) 19 JEL 347.
68 Strathern (n 4) 5.
69 Kramer (n 31).
70 Consider also Christopher McCrudden, Legal Research and the Social Sciences (2006) 122
LQR 632.
71 Fisher and others (n 5) 243.
72 Strathern (n 4) 4.
73 See Richard Macrory, The Long and Winding Road - Towards an Environmental Court in
England and Wales (2013) JEL 371 for an excellent example of this interrelationship.
74 The most obvious is the number of articles published in the Journal concerning the possibility
of an environmental court. See ibid for an account.
356 Elizabeth Fisher

from those that have served as the Journals General Editors, four articles from
scholars who have been paired to write together, and editorial reflections
from case law, analysis and book review editors. While those contributing
were focusing on very different things, writing to different lengths, and ap-
proached their tasks in different ways, it is striking how every contribution is
about the hot nature of environmental law. There is thus an emphasis on
wrestling with polycentricity, scientific uncertainty, and interdisciplinarity as
well as the challenges in developing frames for analysis.
In this regard, the emphasis on looking in the title, Looking Backwards,
Looking Forwards is not accidental. While focusing on the temporal dimen-
sion is perhaps over-simplistic the title is really highlighting the importance

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of reflectionwe cannot think of moving forwards until we take a good
hard look backwards to understand the heat of the subject. In this regard,
it is useful to remember that Feldman highlighted self-conscious and
reflective open mindedness as one of the three ideals that inform legal
scholarship.75
In regards to some contributions, the process of reflection is focused on how
to rigorously describe environmental law landscapes. Thus Scotford and
Robinson provide an account of the complex legislative and administrative
landscape of English and UK environmental law,76 and French and Rajamani
relate international climate change law to a wider context.77 Harrison provides
an overview of international tribunals in international law,78 Edwards analyses
two of the most significant areas of the Court of Justice of the European
Unions case law79 and Thornton provides a birds eye view of the development
of domestic environmental case law.80 These descriptions all provide founda-
tions on which to build understandings of how environmental problems
are framed and the legal implications of those frames.
Another set of contributions focus more explicitly on how law and
scholarship frame different issues. Thus Hilson considers the relationship
between environmental law and climate change law, both normatively and de-
scriptively.81 Macrory ponders how to consider the historical backstory

75 David Feldman, The Nature of Legal Scholarship (1989) 52 MLR 498, 503.
76 Eloise Scotford and Jonathan Robnison,UK Environmental Legislation and its Administration
in 2013 ^ Achievements, Challenges and Prospects (2013) 25 JEL 383.
77 Duncan French and Lavanya Rajamani,Climate Change & International Environmental Law:
Musings on a Journey to Somewhere (2013) 25 JEL 437.
78 James Harrison, Reflections on the Role of International Courts and Tribunals in the
Settlement of Environmental Disputes and the Development of International Environmental
Law (2013) 25 JEL 501.
79 Edwards (n 48).
80 Thornton (n 48).
81 Chris Hilson, Its All About Climate Change, Stupid! Exploring the Relationship Between
Environmental Law and Climate Law (2013) 25 JEL 359.
 Environmental Law as Hot Law 357

to what is now the Environment Tribunal.82 Stokes and Vaughan analyse

how expectations shape our understandings about the limits and potential
of EU chemicals law.83 Driesen and Bogojevic consider the framing power
of economic thought in different legal cultures.84 Lee and McGillivray
ponder the role of the Journals analysis section in light of both its history
and the changing world of scholarly publishing.85 They show how timely
and well-executed analysis does matter. Likewise, Stallworthy provides a
thought-provoking analysis of book reviews and their contribution to legal
scholarship.86
Having the privilege of editing these pieces (and any other piece submitted
to the Journal for that matter) I know that writing such reflective and honest
scholarship is far harder than it looksfiguring out what is relevant is not

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easy, reconciling different frames is difficult, finding the right level of analysis
tricky, containing the scope impossible.87 There is much craft that has
gone into these contributions.88 Or to put the matter another waywhile
scholarship in hot situations is vital, it is not easy! In all cases I would hope
that each contribution is understood as the start, or at least a contribution to,
a conversation about environmental law.

4. Conclusion
The sharp-eyed reader will have noted that most of the references appearing
in the footnotes in this introduction have been references to articles that have
appeared in the Journal over the past 25 years. I should stress that the refer-
ences listed here are only a representative sample of what has appeared in the
Journal. In writing this article, I found it hard to resist the twin temptations
of citing even more articles and/or to engage in the detail of a particular article.
The desire to say look, look - this article is interesting and important - as is
this one had to give way to word limits however.
The inclusion of these references is deliberate on my part. In an era of
fast-paced publishing, it is tempting to think of journal articles as having use
by dates or limited shelf lives. But if one stops to think about it, the idea that
a scholarly contribution goes stale, or off is an odd one. True some articles
are overtaken by legal developments and some articles do reflect a previous

82 Macrory (n 73).
83 Elen Stokes and Steven Vaughan, Great Expectations: Reviewing 50 Years of Chemicals
Legislation in the EU (2013) 25 JEL 411.
84 Driesen and Bogojevic (n 60).
85 Bob Lee and Donald McGillivray A nalysing Analysis: Reporting, Reviewing and
Re-appraising Environmental Law (2013) 25 JEL 485.
86 Mark Stallworthy, The Review in Environmental Law Discourse (2013) 25 JEL 547.
87 See also Fisher and others (n 5).
88 Richard Sennett, The Craftsman (Allen Lane 2008) ch 9.
358 Elizabeth Fisher

eras scholarly pre-occupations. Those articles are largely in the minority

however, and what is clear in reading back through the past 25 years of the
Journal is how much it is an important repository of scholarly contributions.
Thus in conclusion, I can think of no better way of starting to get ones
head around the hot nature of environmental problems and environmental
law than engaging with both this Special Issue and the back volumes of
the Journal.

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