Rapid increases in globalization since the first Rio Conference in 1992 has exceeded the ability of global governance systems to respond to the resulting sustainability challenges. The need for integrated interdisciplinary approaches to address these challenges is widely accepted. There are however a lack of methods to address such approaches. In this context, traditional doctrinal approaches to legal scholarship are clearly inadequate.

There is growing recognition that the design of effective legal instruments requires research methods that go beyond traditional approaches and include social and institutional considerations. This recognition has led to socio-legal approaches to legal research and the use of empirical research methods. The design of environmental law instruments faces challenges in addition to those found in other areas of law. These challenges include the meaningful incorporation of ecological knowledge into decision-making and addressing issues that span jurisdictional boundaries from the global to the local. In this presentation, I discuss the methods used in a research project aimed at developing strategies for the effective management of transboundary natural resources. I use this research to explore the particular methodological challenges that face environmental law research and provide directions for the further development of environmental law scholarship.

The research used an iterative process which combined desk-based legal-doctrinal research, case-studies and comparative legal research. Two transboundary projects were used as case studies. The first case-study was located in the Pamir-Alai Mountains of Central Asia and involved the adjacent former Soviet nations of Tajikistan and the Kyrgyz Republic. The second case study was based in the highlands of Borneo and included the island’s three countries: Brunei, Indonesia and Malaysia. A comparative study of the legal and institutional requirements for transboundary biodiversity conservation and transboundary water management was conducted to identify core principles for the governance of transboundary resources.

This research highlights the transferability of legal methods for the management of natural resources. It also highlights that the creation of effective environmental law instruments requires additional methods to incorporate essential science-policy linkages.

As the world faces increasingly difficult conditions with advancing climate change and ocean acidification, continuing loss of biological diversity, the growth of megacities, massive public health problems from pollution, and continuing population growth putting stress on all systems, it becomes increasingly important not only to assess whether there are environmental laws on the books and whether those laws are being enforced, but whether they are actually protecting the environment. In many areas, the data suggest they are not. The Global Environmental Outlook reports are the best source of scientific data documenting environmental changes on a global and regional level, but they are generally not used or are underutilized in environmental law courses.

This presentation will suggest that more effective use of scientific data and a critical-studies, adaptive-management approach to environmental law instruction will help future environmental lawyers and policymakers not only learn environmental law as it is, but understand it in context and analyze reasons for its failure to protect the environment. The goal is to teach strategic interdisciplinary thinking about environmental laws and enforcement, so that the lawyers and policymakers of the future can work with scientists and other experts not only to enforce existing environmental laws but to find ways to improve the coverage and performance of their environmental laws over time.

Professor Harmon will share her experience in structuring and teaching such a course and provide suggestions for pedagogical approaches incorporating GEO reports and other scientific data in both comparative and national environmental law courses.

Decision-making in relation to threatened species and ecological communities, especially when the ubiquitous ‘listing’ may be the required outcome to attract a conservation response, is particularly susceptible to challenges over methodology.

Many decisions are made under circumstances where the available scientific evidence is uncertain, inadequate, or inexact; the decisions are generally science-based and the link between science and policy is clouded; and there is a background of hostility or potential conflict.

One of the important areas of concern is the appropriate scientific methodology to inform the listing decision-making process in the face of scientific uncertainty. Whilst ‘sound science’ methods are at one end of the spectrum, there are many proponents for the need for more flexibility in the accumulation of information to support the assessment process, including reference to outside literature and the use of outside experts.

This paper reviews some of the common listing methodologies and draws on the Australian experience for listing which could be described as based on characteristics reflecting ‘sound science’ and, inferentially, does not accommodate uncertainty. At present, the decisions under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) are based on the application of known facts to specific criteria. The existence of uncertainty and 'unknown' facts can be fatal to a nomination.

The Delphi method has been identified as a means of utilising the best expertise and experience especially under circumstances of uncertainty. The paper reflects on the modern experiences and the potential use of the Delphi method for listing generally and specifically, the opportunities to use of the Delphi method within the Australian regulatory context.