The Unbearable License of Being the Executive: A Response to Stacey's Permanent Environmental Emergency
Osgoode Hall Law Journal, Vol. 52(3), Forthcoming
22 Pages Posted: 21 Oct 2015 Last revised: 15 Jan 2019
Date Written: October 20, 2015
This article responds to Jocelyn Stacey's "The Environmental Emergency and the Legality of Discretion in Environmental Law". In her article, Stacey attempts to establish the legitimacy of unfettered executive discretion to deal with environmental issues, but the justification that she provides is not up to the task. She asserts that all environmental issues are emergencies but she does not explain why they are so. She proposes to resolve the problem of executive discretion by redefining the rule of law, thereby rendering it an empty shell. Environmental protection and the rule of law do not push in opposite directions. Instead, it is the loss of the rule of law that allows governments to pick and choose the environmental conditions that they wish to alternatively save and sacrifice. The solution to environmental issues that the rule of law demands is not unfettered discretion but better abstraction in rules of general application. Boundless authority to respond to "environmental emergency" is an unbearable license to make things up on the go.
Keywords: Environmental law, rule of law, discretion, emergency, separation of powers, ecosystems, ecosystem management, adaptive management, Crown prerogative
JEL Classification: K00, K19, K32, Q54
Suggested Citation: Suggested Citation