Pub Date : 2021-11-01DOI: 10.1017/s2047102521000297
Melissa Powers
To the extent that there was still any doubt, the climate-related disasters of 2020 and 2021 – including historical wildfires, unprecedented heatwaves, massive flooding, extended droughts, and rapid melting of ice sheets – unequivocally demonstrate that it is too late to avoid some consequences associated with climate change. While it remains essential to pursue ambitious climate mitigation and adaptation, we can neither prevent nor adapt to some forms of climate-related harm. Developing countries, many of which bear only minimal responsibility for emitting greenhouse gases, are likely to suffer the greatest losses and have the least ability to recover without assistance. Recognizing this injustice, the Association of Small-Island States (AOSIS) and developing countries have long advocated the inclusion of a loss-and-damage mechanism in international climate policy. In 1991, during the negotiations for the United Nations Framework Convention on Climate Change (UNFCCC), AOSIS proposed that developed countries create and finance a global insurance policy to cover climate-related loss and damage. After decades of advocacy, loss and damage were finally incorporated into the international climate regime, firstly, through the establishment of the Warsaw International Mechanism for Loss and Damage (WIM) in 2013 and then through Article 8 of the Paris Agreement, a dedicated loss-and-damage provision that emphasizes ‘the importance of averting, minimizing and addressing loss and damage associated with the adverse effects of climate change’. Only a year after adopting
{"title":"The Third Pillar of International Climate Change Policy: On ‘Loss and Damage’ after the Paris Agreement, edited by Morten Broberg and Beatriz Martinez Romera Routledge, 2021, 134 pp, £120 hb, £44.99 ebk ISBN 9780367676681 hb, 9781003132271 ebk","authors":"Melissa Powers","doi":"10.1017/s2047102521000297","DOIUrl":"https://doi.org/10.1017/s2047102521000297","url":null,"abstract":"To the extent that there was still any doubt, the climate-related disasters of 2020 and 2021 – including historical wildfires, unprecedented heatwaves, massive flooding, extended droughts, and rapid melting of ice sheets – unequivocally demonstrate that it is too late to avoid some consequences associated with climate change. While it remains essential to pursue ambitious climate mitigation and adaptation, we can neither prevent nor adapt to some forms of climate-related harm. Developing countries, many of which bear only minimal responsibility for emitting greenhouse gases, are likely to suffer the greatest losses and have the least ability to recover without assistance. Recognizing this injustice, the Association of Small-Island States (AOSIS) and developing countries have long advocated the inclusion of a loss-and-damage mechanism in international climate policy. In 1991, during the negotiations for the United Nations Framework Convention on Climate Change (UNFCCC), AOSIS proposed that developed countries create and finance a global insurance policy to cover climate-related loss and damage. After decades of advocacy, loss and damage were finally incorporated into the international climate regime, firstly, through the establishment of the Warsaw International Mechanism for Loss and Damage (WIM) in 2013 and then through Article 8 of the Paris Agreement, a dedicated loss-and-damage provision that emphasizes ‘the importance of averting, minimizing and addressing loss and damage associated with the adverse effects of climate change’. Only a year after adopting","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"10 1","pages":"575 - 578"},"PeriodicalIF":4.3,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44073058","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-01DOI: 10.1017/S2047102521000315
Veerle Heyvaert
This editorial marks the tenth anniversary of Transnational Environmental Law (TEL) and the culmination ofmy time as one of its founding Editors-in-Chief. I am grateful for the opportunity to reflect on key developments in environmental law, on the impressive expansion of transnational environmental legal scholarship, and on the significance and strength of our community of environmental legal scholars.
{"title":"Environmental Law as a Transnational Ecosystem","authors":"Veerle Heyvaert","doi":"10.1017/S2047102521000315","DOIUrl":"https://doi.org/10.1017/S2047102521000315","url":null,"abstract":"This editorial marks the tenth anniversary of Transnational Environmental Law (TEL) and the culmination ofmy time as one of its founding Editors-in-Chief. I am grateful for the opportunity to reflect on key developments in environmental law, on the impressive expansion of transnational environmental legal scholarship, and on the significance and strength of our community of environmental legal scholars.","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"10 1","pages":"401 - 411"},"PeriodicalIF":4.3,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48274443","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-01DOI: 10.1017/S2047102521000285
Amelia Schlusser
{"title":"Making Climate Policy Work, by Danny Cullenward and David G. Victor Polity, 2020, 256 pp, £55 hb, £15.99 pb, £14.99 ebk ISBN 9781509541799 hb, 9781509541805 pb, 9781509541812 ebk","authors":"Amelia Schlusser","doi":"10.1017/S2047102521000285","DOIUrl":"https://doi.org/10.1017/S2047102521000285","url":null,"abstract":"","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"10 1","pages":"571 - 574"},"PeriodicalIF":4.3,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47903272","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-01DOI: 10.1017/S2047102521000273
R. S. Abate
{"title":"Highlights of Recent Book Publications (July 2020 to June 2021)","authors":"R. S. Abate","doi":"10.1017/S2047102521000273","DOIUrl":"https://doi.org/10.1017/S2047102521000273","url":null,"abstract":"","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"10 1","pages":"579 - 602"},"PeriodicalIF":4.3,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46244968","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-11-01DOI: 10.1017/S2047102521000303
T. Etty, Veerle Heyvaert, C. Carlarne, Bruce R. Huber, J. Peel, Josephine A. W. van Zeben
This issue brings to a close the first full decade of Transnational Environmental Law (TEL). It is sobering to consider the shape of the world in 2011 and to remember our ignorance of the events to come. The global stage is always a roiling mix of disparate forces, but between the ascendance of the populist right, COVID-19, Brexit, the rise and decline (and rise?) of ISIS, and the ongoing escalation of climate-related emergencies, it seems thatTEL’s initial ten years witnessedmore than their share of global turmoil. In strictly legal terms there were unexpected developments that became core areas of relevance to this journal. The emergence of environmental litigation in China, for example, has been a striking shift, the magnitude of which could not easily have been foreseen at TEL’s inception. The ‘rights of nature’ as a feature of legislation and constitutional law, though emergent in the 2000s, has bubbled to the surface in additional jurisdictions over the last decade, and the Paris Agreement marked a significant departure from earlier approaches to climate change under international law.
{"title":"Ten Years On: Rethinking Transnational Environmental Law","authors":"T. Etty, Veerle Heyvaert, C. Carlarne, Bruce R. Huber, J. Peel, Josephine A. W. van Zeben","doi":"10.1017/S2047102521000303","DOIUrl":"https://doi.org/10.1017/S2047102521000303","url":null,"abstract":"This issue brings to a close the first full decade of Transnational Environmental Law (TEL). It is sobering to consider the shape of the world in 2011 and to remember our ignorance of the events to come. The global stage is always a roiling mix of disparate forces, but between the ascendance of the populist right, COVID-19, Brexit, the rise and decline (and rise?) of ISIS, and the ongoing escalation of climate-related emergencies, it seems thatTEL’s initial ten years witnessedmore than their share of global turmoil. In strictly legal terms there were unexpected developments that became core areas of relevance to this journal. The emergence of environmental litigation in China, for example, has been a striking shift, the magnitude of which could not easily have been foreseen at TEL’s inception. The ‘rights of nature’ as a feature of legislation and constitutional law, though emergent in the 2000s, has bubbled to the surface in additional jurisdictions over the last decade, and the Paris Agreement marked a significant departure from earlier approaches to climate change under international law.","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"10 1","pages":"391 - 400"},"PeriodicalIF":4.3,"publicationDate":"2021-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41399780","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-15DOI: 10.1017/S2047102521000212
Mingzhe Zhu
Abstract China's climate governance is distinguished by the contrast between an abundance of policies on climate change and the lack of legally binding laws. This article argues that Chinese courts bridge this difference, which fosters a ‘rule of climate policy’ rather than a strict rule of law. The effective authority of Chinese climate policy is made possible in practice both by provisions of the Chinese Constitution and the prevailing use of legal reasoning. China's constitutional design of ‘ecological civilization’ delegates the duty and the power of managing climate change issues to the executive branch of its government. Most Chinese documents on climate governance have no binding legal force, which means, according to positive law, that they cannot serve as legal grounds for judicial decisions. Chinese judges, in deciding climate-related disputes, must combine legal provisions and non-binding materials to achieve regulatory goals. They use non-legal materials to support statutory or contractual interpretations and determine the existence or limits of rights, which alters the meaning and scope of existing legal terms and principles. This rule of climate policy is possible in the courtroom because judges justify public policy considerations with arguments of principle that are substantiated in various non-binding climate plans.
{"title":"The Rule of Climate Policy: How Do Chinese Judges Contribute to Climate Governance without Climate Law?","authors":"Mingzhe Zhu","doi":"10.1017/S2047102521000212","DOIUrl":"https://doi.org/10.1017/S2047102521000212","url":null,"abstract":"Abstract China's climate governance is distinguished by the contrast between an abundance of policies on climate change and the lack of legally binding laws. This article argues that Chinese courts bridge this difference, which fosters a ‘rule of climate policy’ rather than a strict rule of law. The effective authority of Chinese climate policy is made possible in practice both by provisions of the Chinese Constitution and the prevailing use of legal reasoning. China's constitutional design of ‘ecological civilization’ delegates the duty and the power of managing climate change issues to the executive branch of its government. Most Chinese documents on climate governance have no binding legal force, which means, according to positive law, that they cannot serve as legal grounds for judicial decisions. Chinese judges, in deciding climate-related disputes, must combine legal provisions and non-binding materials to achieve regulatory goals. They use non-legal materials to support statutory or contractual interpretations and determine the existence or limits of rights, which alters the meaning and scope of existing legal terms and principles. This rule of climate policy is possible in the courtroom because judges justify public policy considerations with arguments of principle that are substantiated in various non-binding climate plans.","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"11 1","pages":"119 - 139"},"PeriodicalIF":4.3,"publicationDate":"2021-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49298242","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-02DOI: 10.1017/S2047102521000261
Hope Johnson, Zoe Nay, R. Maguire, Leonie Barner, A. Payne, Manuela B. Taboada
Abstract This article categorizes and evaluates how regulatory regimes conceptualize plastics, and how such conceptualizations affect the production, consumption, and disposal of plastics. Taking a doctrinal and policy-oriented approach, it identifies four ‘frames’ – that is, four distinct and coherent sets of meanings attributed to plastics within transnational regulation – namely, plastics as waste to be managed; a material to be prevented; a good (or waste) to be traded freely; and inputs or outputs in production-consumption systems. Based on this analysis, three significant deficiencies in the transnational regulation of plastics are identified: the failure to frame plastics in terms of environmental justice and human rights issues; insufficient focus on plastics prevention (rather than management); and the role of law in reinforcing its production and consumption.
{"title":"Conceptualizing the Transnational Regulation of Plastics: Moving Towards a Preventative and Just Agenda for Plastics","authors":"Hope Johnson, Zoe Nay, R. Maguire, Leonie Barner, A. Payne, Manuela B. Taboada","doi":"10.1017/S2047102521000261","DOIUrl":"https://doi.org/10.1017/S2047102521000261","url":null,"abstract":"Abstract This article categorizes and evaluates how regulatory regimes conceptualize plastics, and how such conceptualizations affect the production, consumption, and disposal of plastics. Taking a doctrinal and policy-oriented approach, it identifies four ‘frames’ – that is, four distinct and coherent sets of meanings attributed to plastics within transnational regulation – namely, plastics as waste to be managed; a material to be prevented; a good (or waste) to be traded freely; and inputs or outputs in production-consumption systems. Based on this analysis, three significant deficiencies in the transnational regulation of plastics are identified: the failure to frame plastics in terms of environmental justice and human rights issues; insufficient focus on plastics prevention (rather than management); and the role of law in reinforcing its production and consumption.","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"11 1","pages":"325 - 355"},"PeriodicalIF":4.3,"publicationDate":"2021-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42232811","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-01DOI: 10.1017/S204710252100025X
Esmeralda Colombo
Abstract The year 2020 proved to be a clarion call for global society. There is no longer doubt that increasingly we are experiencing unpredictable events, known as ‘black swans’, ranging from pandemics to financial meltdowns. One of the ’climate black swans’ against which experts have cautioned is the financial crisis caused by climate change. In this context, the Australian case of McVeigh v. Retail Employees Superannuation Trust for the first time tested climate risk and the fiduciary duties of retail pension funds. Settled in November 2020, the case has already raised the bar for climate risk practice in pension funds. In particular, McVeigh suggests that courts, as well as out-of-court settlements, may articulate a duty, rather than grant permission, for pension funds to consider climate-related financial risk in their investment decisions. The article builds on McVeigh to ask two questions. Firstly, what is the role of climate change litigation in promoting climate regulation by pension funds? Secondly, what is the relative importance of pension funds for the risk management of climate-related financial risk via due diligence compared with risk assessment via disclosure? Fundamentally, the article explains climate-related financial risk as a cultural phenomenon and argues that a discussion on pension fund fiduciary duties must consider disclosure in addition to due diligence. It argues that McVeigh articulated the need for a normative approach to pension fund disclosure duties and an extension of the field of climate-related risk disclosure to embrace climate-related risk due diligence.
{"title":"From Bushfires to Misfires: Climate-related Financial Risk after McVeigh v. Retail Employees Superannuation Trust","authors":"Esmeralda Colombo","doi":"10.1017/S204710252100025X","DOIUrl":"https://doi.org/10.1017/S204710252100025X","url":null,"abstract":"Abstract The year 2020 proved to be a clarion call for global society. There is no longer doubt that increasingly we are experiencing unpredictable events, known as ‘black swans’, ranging from pandemics to financial meltdowns. One of the ’climate black swans’ against which experts have cautioned is the financial crisis caused by climate change. In this context, the Australian case of McVeigh v. Retail Employees Superannuation Trust for the first time tested climate risk and the fiduciary duties of retail pension funds. Settled in November 2020, the case has already raised the bar for climate risk practice in pension funds. In particular, McVeigh suggests that courts, as well as out-of-court settlements, may articulate a duty, rather than grant permission, for pension funds to consider climate-related financial risk in their investment decisions. The article builds on McVeigh to ask two questions. Firstly, what is the role of climate change litigation in promoting climate regulation by pension funds? Secondly, what is the relative importance of pension funds for the risk management of climate-related financial risk via due diligence compared with risk assessment via disclosure? Fundamentally, the article explains climate-related financial risk as a cultural phenomenon and argues that a discussion on pension fund fiduciary duties must consider disclosure in addition to due diligence. It argues that McVeigh articulated the need for a normative approach to pension fund disclosure duties and an extension of the field of climate-related risk disclosure to embrace climate-related risk due diligence.","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"11 1","pages":"173 - 199"},"PeriodicalIF":4.3,"publicationDate":"2021-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42318717","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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