Thursday, October 17, 2019

Nathasha Affolder’s "Contagious Environmental Lawmaking"

I just ran across Professor Nathasha Affolder’s (University of British Columbia) recent article, Contagious Environmental Lawmaking.  This thought-provoking piece critically examines how environmental law scholarship characterizes the international diffusion of legal concepts such as environmental impact analysis.  A common method in scholarship, Affolder observes, is to note examples of the apparent proliferation of an idea across multiple legal systems and then to treat this proliferation as evidence of the merit of the idea.  Lots of legal systems have something called environmental impact analysis, the reasoning goes, so that must mean that environmental impact analysis is a beneficial legal tool.  The transnational migration of a term is thus assumed to demonstrate the replication of law, and replication is assumed to demonstrate the merit of a law.

Affolder makes a convincing case that this approach can be naïve and even biased because it strips the process of legal diffusion of its contingencies and its historical and cultural context.  Just because a term such as environmental impact analysis appears in different legal systems does not mean that it is equivalent in each system.  And even if an idea gets adopted elsewhere, its spread is not necessarily simply because it was a good idea.  The international lawmaking market is not a neutral meritocracy of ideas.  The dominant and recurring theme of Affolder’s article is, “It’s a lot more complicated than that,” and she urges environmental law scholars to take fuller account of those complications in their work. To encapsulate her critical approach, Affolder proposes the term contagious lawmaking, which she contends “creates space for dissecting the multiplicity of processes at work, of directions of travel, and of levels at which the ‘influence’ of legal ideas can be detected or imagined.”

To help illuminate some of the complications she sees as overlooked in conventional comparative environmental law scholarship, Affolder identifies five methodological traps to be avoided: 

  • Scholars embed normative claims in putatively descriptive work in ways that disguise policy agendas. Thus, a scholar may refer to a list of “best practices” as if what counts as “best” is self-evident and as if practices that are successful in one context should automatically be replicated in others. 
  • Scholars ignore the historical development of environmental law ideas, assuming that ideas develop and spread simply because they are good. Ideas may spread for a variety of reasons, not all necessarily based solely on universal merit.
  • Scholars project universality onto their objects of study, ignoring important differences among similar-sounding concepts. As an example, Affolder notes how a concept such as “rights of nature” can only be understood in the context of a particular people’s understanding of, and relationship to, nature. 
  • Scholars ignore the people who influence the spread of environmental law concepts. Individuals take actions that carry legal concepts across cultures and legal systems.  Understanding why and how those actions occurred adds important context to the migration of legal concepts.
  • Scholars pay insufficient attention to how funding affects the movement of law. People and organizations with money can push out ideas, and the ability of an idea to take hold depends on having resources to implement it.

Each of Affolder’s “traps” is a point well taken, but I think they also can be overstated and taken too far.  Sometimes stripping away context is what generates insights.  Treating every development as thoroughly embedded in its own unique historical and institutional context can obscure patterns and commonalities that may exist across developments.

Affolder’s critiques remind me of a cluster of articles written a few years ago by scholars such as Jody Freeman, Amy Wildermuth, Lincoln Davies, Joe Tomain, and I about the relationship between energy law and environmental law.  My 2015 article in that cluster, Energy-Environment Policy Alignments, argued that FERC and EPA had begun developing policies that create beneficial alignments between energy law and environmental law and these alignments offer a promising model for better managing the energy-environment relationship.  More broadly, I claimed, policy alignments provide a potentially useful model for managing relationships among other overlapping fields as well.  Around the same time, Jody Freeman published an article entitled The Uncomfortable Convergence of Energy and Environmental Law.  Her article took what she called a more “tempered” view of energy-environment alignments, noting that the institutional contexts in which agencies such as FERC operate limit their ability and willingness to adopt environmental policy objectives that are outside of their traditional focus and legal mandate.  It seems to me that Freeman took an approach closer to what Affolder recommends.  Freeman’s criticism of my article and others was well-placed; she made a convincing case that the realistic prospects of energy-environmental alignments are best understood in light of the institutions in which such alignments would have to occur.  But adding this helpful context also doesn’t negate the point that scholars such as Wildermuth, Davies, Tomain and I have made in our scholarship about the importance of opportunities to align the sometimes divergent fields of energy and environmental law.

Circling back to Affolder’s article, my take-away is that there is an important place for scholarship that contextualizes legal ideas in the circumstances in which they arise, take root, and spread.  But not all scholarship has to take a context-centered approach.  Scholarship attempts to explain things, and in doing so it often employs theoretical and analytical frameworks that necessarily simplify the world.  Simplification and focus generate insights.  To translate theory into practice, however, scholarship also should examine the experience of legal ideas as they have operated in the real world.  Affolder’s article provides a strong argument in favor of such scholarship, and valuable guidance in thinking about how to approach it (and how not to approach it).

--Todd Aagaard

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