Legal, Regulatory, and Governance Innovation in Transnational Environmental Law

Abstract

[...]disruption creates pressure for evolution in existing legal frameworks, or the creation of new legal frameworks.4 Transnational environmental law encompasses evolving understandings of ‘law’, ‘regulation’, and ‘governance’ as they relate to the global nature of many contemporary environmental problems.5 This issue of Transnational Environmental Law (TEL) highlights the diverse range of legal, regulatory, and governance innovations that continue to be experimented with in an attempt to address complex environmental challenges. [...]Duvic-Paoli analyzes the disruptive impacts of climate change on lawmaking processes, followed by pieces by Donger, Mayer, and Burgers, which focus on legal disruption in the context of climate litigation and adjudication. In Milieudefensie v. Royal Dutch Shell, the Hague District Court (the Netherlands) issued an injunction against Shell to reduce its greenhouse gas (GHG) emissions by 45% by 2030, compared with 2019 levels.31 According to Mayer, ‘[t]he most innovative aspect of the judgment regards its interpretation of the Dutch law on torts as requiring [Shell] to take climate change mitigation action’.32 Mayer welcomes the establishment of a corporate duty of care to mitigate climate change, yet he notes that determining the content of the duty of care is ‘a challenging task’.33 In particular, he is sceptical of the Court's reliance on global mitigation objectives and climate science to determine the level of GHG emissions that Shell could emit without breaching its duty of care.34 Mayer suggests that the Court's ‘innovative decision’, and particularly its ‘methodological choices’ for determining the content of the duty of care, raise concerns that the Court is going beyond its constitutional role in interpreting and applying the law.35 He proposes an alternative methodology which applies Martti Koskenniemi's distinction between ‘descending reasoning’, in which norms are inferred from general international law principles, and ‘ascending reasoning’, in which norms are deduced from general state practice.36 While the judgment of the Hague District Court arguably reflects a strong preference for the former type of reasoning, it does not engage with ascending reasoning by considering empirical evidence of the current practices of oil-and-gas corporations. Mayer contends that a preferable approach would combine both types of reasoning by referring to international agreements and scientific reports, as well as sectoral practices among other companies.37 If the latter approach were adopted, the interpretation of the standard of care should incorporate what could be expected from an average or reasonable oil-and-gas company.38 Mayer suggests that such an approach reflects a ‘midpoint’ between ascending and descending reasoning, which is consistent with the courts’ function in applying, rather than making, the law.39 In ‘An Apology Leading to Dystopia: Or, Why Fuelling Climate Change is Tortious’,40 Laura Burgers responds to Mayer's analysis and offers a more sympathetic alternative reading of the Hague District Court's judgment.