Reframing environmental law: From ‘optimising’ false certainties to ‘steering’ under true uncertainty

Abstract

The purpose of this article is to outline not a theory of environmental law and policy, but a diagnostic of what we see as the main problem and, hopefully, a realistic, effective and fair reframing of this technology. We will attempt to make one point as clearly as possible: environmental law, even avant la lettre, was and remains designed as a law of negative externalities, that is a body of laws fundamentally organised so as to minimise interference with the underlying transaction while mitigating its negative externalities.