The double failure of environmental regulation and deregulation and the need for ecological law

The evolution of environmental law in the last few decades has occurred in two main phases, which correspond to two opposing and sometimes conflicting trends. The first phase, which may be identified as the “environmental regulatory trend”, has been characterised by the attempt to protect the environment through the management of the negative externalities caused by the dominant economic model based on the pursuit of an unrestrained growth. Such a regulatory trend, despite producing an enormous corpus of legislation, has shown many deficiencies. The shortcomings of the environmental regulation trend have therefore paved the way for the advent of the second phase, characterised by an “environmental deregulatory trend”, which has promoted a shift towards the progressive revision of the existing legislation, with a view to simplifying and streamlining it. Unfortunately, both approaches have resulted in a substantial failure. The aim of the present paper is to analyse the double failure of environmental regulation and deregulation and to promote a possible way out. This will be identified as the need to revise the current regulatory regime for environmental protection and to promote a shift towards a new ecologically based approach to the law, which should primarily aim at the protection of the health and integrity of the ecosystems which support life on Earth. Moreover, in order to signal the decisive shift that the new approach should mark, a corresponding change in the name of the law aimed at the protection of the environment and ecosystems will be proposed: from environmental law to ecological law.