Pub Date : 2022-07-01DOI: 10.1017/S2047102522000231
Jocelyn Stacey
Abstract Climate emergency declarations occupy a legally ambiguous space between emergency measure and political rhetoric. Their uncertain status in public law provides a unique opportunity to illuminate latent assumptions about emergencies and how they are regulated in law. This article analyzes climate emergency declarations in Canada, the United Kingdom, Australia, and Aotearoa/New Zealand. It argues that these climate emergency declarations reflect back a set of paradoxes about the legal regulation of emergencies – paradoxes about defining the emergency, how time regulates and contains emergency power, and who gets to respond to the emergency and how. These paradoxes challenge long-held and over-simplified assumptions about emergencies and allow us to see the complex ways in which public law regulates emergencies – a necessity in a climate-disrupted world.
{"title":"The Public Law Paradoxes of Climate Emergency Declarations","authors":"Jocelyn Stacey","doi":"10.1017/S2047102522000231","DOIUrl":"https://doi.org/10.1017/S2047102522000231","url":null,"abstract":"Abstract Climate emergency declarations occupy a legally ambiguous space between emergency measure and political rhetoric. Their uncertain status in public law provides a unique opportunity to illuminate latent assumptions about emergencies and how they are regulated in law. This article analyzes climate emergency declarations in Canada, the United Kingdom, Australia, and Aotearoa/New Zealand. It argues that these climate emergency declarations reflect back a set of paradoxes about the legal regulation of emergencies – paradoxes about defining the emergency, how time regulates and contains emergency power, and who gets to respond to the emergency and how. These paradoxes challenge long-held and over-simplified assumptions about emergencies and allow us to see the complex ways in which public law regulates emergencies – a necessity in a climate-disrupted world.","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"11 1","pages":"291 - 323"},"PeriodicalIF":4.3,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44989354","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 : 2022-07-01DOI: 10.1017/s2047102522000255
D. Bertram
{"title":"The Ecology of War and Peace, by Eliana Cusato Cambridge University Press, 2021, 296 pp, £85 hb, US$88 ebk ISBN 9781108837521 hb, 9781108944632 ebk","authors":"D. Bertram","doi":"10.1017/s2047102522000255","DOIUrl":"https://doi.org/10.1017/s2047102522000255","url":null,"abstract":"","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":" ","pages":""},"PeriodicalIF":4.3,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49616099","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 : 2022-07-01DOI: 10.1017/S2047102522000292
T. Etty, Josephine A. W. van Zeben, C. Carlarne, Leslie‐Anne Duvic‐Paoli, Bruce R. Huber, Anna Huggins
[...]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 respon
[…]破坏给现有法律框架的演变或新法律框架的建立带来了压力。4跨国环境法包括对“法律”、“监管”、,和“治理”,因为它们与许多当代环境问题的全球性质有关。5本期《跨国环境法》突出了为应对复杂的环境挑战而继续试验的各种法律、监管和治理创新。[…]Duvic Paoli分析了气候变化对立法过程的破坏性影响,随后是Donger、Mayer和Burgers的文章,重点关注气候诉讼和裁决背景下的法律破坏。在Milieudensie诉荷兰皇家壳牌一案中,海牙地区法院(荷兰)发布了一项禁令,要求壳牌在2030年前将其温室气体排放量比2019年减少45%。31据Mayer称,“该判决最具创新性的方面是将其对荷兰侵权法的解释视为要求[壳牌]采取气候变化缓解行动”。32 Mayer欢迎制定企业应对气候变化的注意义务,但他指出,确定注意义务的内容是“一项具有挑战性的任务”。33特别是,他对法院依赖全球缓解目标和气候科学来确定壳牌在不违反其注意义务的情况下可以排放的温室气体水平表示怀疑。34 Mayer认为,法院的“创新决定”,特别是其确定注意义务内容的“方法选择”,35他提出了一种替代方法,该方法适用了Martti Koskenniemi对“递减推理”和“递增推理”的区分,在这种区分中,规范是根据一般国际法原则推断的,36虽然海牙地区法院的判决可以说反映了对前一种推理的强烈偏好,但它并没有通过考虑石油和天然气公司当前做法的经验证据来进行上升推理。Mayer认为,更可取的方法是通过参考国际协议和科学报告,以及其他公司的部门实践,将这两种推理结合起来。37如果采用后一种方法,对谨慎标准的解释应该包括对一家普通或合理的石油和天然气公司的期望。38 Mayer认为,这种方法反映了上升推理和下降推理之间的“中点”,这与法院在应用而不是制定法律方面的职能相一致,40 Laura Burgers回应了Mayer的分析,并对海牙地区法院的判决提出了更具同情心的替代解读。
{"title":"Legal, Regulatory, and Governance Innovation in Transnational Environmental Law","authors":"T. Etty, Josephine A. W. van Zeben, C. Carlarne, Leslie‐Anne Duvic‐Paoli, Bruce R. Huber, Anna Huggins","doi":"10.1017/S2047102522000292","DOIUrl":"https://doi.org/10.1017/S2047102522000292","url":null,"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 respon","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"1 3","pages":"223 - 233"},"PeriodicalIF":4.3,"publicationDate":"2022-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41269257","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 : 2022-06-30DOI: 10.1017/S2047102522000188
Giulia Claudia Leonelli
Abstract A decision will soon have to be taken regarding the renewal of approval of glyphosate at the European Union (EU) level; this pesticidal active substance, however, is more controversial than ever. This article critically assesses various strategies pursued by EU Member States and regional authorities which challenge the EU approach to glyphosate and aim to safeguard their higher levels of public health and environmental protection. It reflects on the prospects of success of these strategies, and their compatibility with EU law. The analysis includes the action for the annulment of glyphosate's 2017 reapproval brought by the Brussels-Capital Region, the Austrian attempt to enact a blanket ban on glyphosate-based pesticidal formulations, and the more sophisticated strategies pursued by Luxembourg and France. The article concludes that the French strategy is effective in risk regulation terms, and compatible with EU law. Nonetheless, adopting the French approach may prove rather difficult for other Member States, as a result of both structural-regulatory and practical constraints. Rather, an EU-wide strategy on glyphosate is urgently needed.
{"title":"The Glyphosate Saga Continues: ‘Dissenting’ Member States and the European Way Forward","authors":"Giulia Claudia Leonelli","doi":"10.1017/S2047102522000188","DOIUrl":"https://doi.org/10.1017/S2047102522000188","url":null,"abstract":"Abstract A decision will soon have to be taken regarding the renewal of approval of glyphosate at the European Union (EU) level; this pesticidal active substance, however, is more controversial than ever. This article critically assesses various strategies pursued by EU Member States and regional authorities which challenge the EU approach to glyphosate and aim to safeguard their higher levels of public health and environmental protection. It reflects on the prospects of success of these strategies, and their compatibility with EU law. The analysis includes the action for the annulment of glyphosate's 2017 reapproval brought by the Brussels-Capital Region, the Austrian attempt to enact a blanket ban on glyphosate-based pesticidal formulations, and the more sophisticated strategies pursued by Luxembourg and France. The article concludes that the French strategy is effective in risk regulation terms, and compatible with EU law. Nonetheless, adopting the French approach may prove rather difficult for other Member States, as a result of both structural-regulatory and practical constraints. Rather, an EU-wide strategy on glyphosate is urgently needed.","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"12 1","pages":"200 - 224"},"PeriodicalIF":4.3,"publicationDate":"2022-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45627087","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 : 2022-06-14DOI: 10.1017/S2047102522000267
L. Burgers
Abstract This invited response commentary engages with Benoit Mayer's case comment, published in this issue of Transnational Environmental Law, on the recent landmark decision by the District Court of The Hague (The Netherlands) of May 2021 in Milieudefensie v. Royal Dutch Shell. The Court ordered the oil giant Royal Dutch Shell to reduce at least 45% of its greenhouse gas emissions by 2030 compared with 2019 levels. In this response commentary I build on and contrast Mayer's examination of how the Court arrived at this target. In doing so, I discuss the normativity of tort law compared with international law against the background of the ideas of Martti Koskenniemi. I conclude that the District Court legitimately qualified Shell's business plans as tortious. The specific reduction target is the result of civil procedural rules on evidence and the debate between the parties. In the light of this analysis, I respectfully reject Benoit Mayer's suggestion that sectoral practices should play a more significant role in determining corporate climate mitigation obligations. In my view, such an approach would be dangerously apologetic and lead to dystopian outcomes.
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Pub Date : 2022-06-14DOI: 10.1017/S2047102522000279
B. Mayer
In her response to my case comment in this issue of Transnational Environmental Law, Laura Burgers purports to disagree with my analysis on two points. Firstly, she suggests that we disagree on the method that a court should use to interpret the duty of care of corporations on climate change mitigation. Secondly, she disagrees with each of the four inconsistencies that I identify in the decision by the District Court of The Hague (the Netherlands) in Milieudefensie v. Royal Dutch Shell. In this rejoinder, I respectfully disagree with her characterization of our disagreement.
Laura Burgers在回应我在本期《跨国环境法》中的案例评论时,声称在两点上不同意我的分析。首先,她建议,我们对法院应用于解释企业在缓解气候变化方面的注意义务的方法存在分歧。其次,她不同意我在海牙地区法院(荷兰)对Milieudensie诉荷兰皇家壳牌公司的裁决中发现的四个不一致之处。在这一反驳中,我恭敬地不同意她对我们分歧的描述。
{"title":"Judicial Interpretation of Tort Law in Milieudefensie v. Shell: A Rejoinder","authors":"B. Mayer","doi":"10.1017/S2047102522000279","DOIUrl":"https://doi.org/10.1017/S2047102522000279","url":null,"abstract":"In her response to my case comment in this issue of Transnational Environmental Law, Laura Burgers purports to disagree with my analysis on two points. Firstly, she suggests that we disagree on the method that a court should use to interpret the duty of care of corporations on climate change mitigation. Secondly, she disagrees with each of the four inconsistencies that I identify in the decision by the District Court of The Hague (the Netherlands) in Milieudefensie v. Royal Dutch Shell. In this rejoinder, I respectfully disagree with her characterization of our disagreement.","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"11 1","pages":"433 - 436"},"PeriodicalIF":4.3,"publicationDate":"2022-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43228467","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 : 2022-06-14DOI: 10.1017/S2047102522000218
Elizabeth Donger
Abstract Children and young people constitute more than one quarter of all plaintiffs in rights-based strategic climate litigation cases filed globally up to 2021. This article examines the implications of this development for children's environmental rights inside and outside the courtroom, relying on the analysis of case documents, media coverage, and the broader literature on strategic climate litigation and children's rights. The article finds that children are well placed to make powerful arguments for intergenerational justice. Conversely, children's rights arguments that address their current-day grievances are under-utilized. More consistent inclusion of these types of claim could strengthen children's environmental rights, clarifying and enforcing legal obligations towards children in the context of the climate crisis as it unfolds. The involvement of children in strategic climate litigation, moreover, can advance the critical role of this demographic as stakeholder in climate solutions. However, the participation of children also raises ethical and practical dilemmas, which are currently poorly understood and only haphazardly addressed.
{"title":"Children and Youth in Strategic Climate Litigation: Advancing Rights through Legal Argument and Legal Mobilization","authors":"Elizabeth Donger","doi":"10.1017/S2047102522000218","DOIUrl":"https://doi.org/10.1017/S2047102522000218","url":null,"abstract":"Abstract Children and young people constitute more than one quarter of all plaintiffs in rights-based strategic climate litigation cases filed globally up to 2021. This article examines the implications of this development for children's environmental rights inside and outside the courtroom, relying on the analysis of case documents, media coverage, and the broader literature on strategic climate litigation and children's rights. The article finds that children are well placed to make powerful arguments for intergenerational justice. Conversely, children's rights arguments that address their current-day grievances are under-utilized. More consistent inclusion of these types of claim could strengthen children's environmental rights, clarifying and enforcing legal obligations towards children in the context of the climate crisis as it unfolds. The involvement of children in strategic climate litigation, moreover, can advance the critical role of this demographic as stakeholder in climate solutions. However, the participation of children also raises ethical and practical dilemmas, which are currently poorly understood and only haphazardly addressed.","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"11 1","pages":"263 - 289"},"PeriodicalIF":4.3,"publicationDate":"2022-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"57390241","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 : 2022-05-17DOI: 10.1017/S2047102522000164
W. Nsoh
Abstract Groundwater is a largely unseen common pool resource. Yet, driven by strong economic incentives, whether or not encouraged by existing policies, and the difficulty to exclude others, groundwater users are competing with each other to extract as much as possible, with devastating consequences for its sustainability. The challenges faced for sustainably managing such common pool resources, on which people have established de facto individual rights, are manifold. However, creating a market for trades of some kind in ecosystem services associated with groundwater could actually enhance the protection of this critical resource on the basis that protection can benefit individual groundwater users economically as well as provide a broader public good. This article uses Elinor Ostrom's design principles as an analytical tool to examine how market-based approaches such as payments for ecosystem services (PES) fit with some of the governance models that could be used to protect and enhance groundwater as a common pool resource. It argues that while there are specific design challenges to be overcome, PES as an institutional tool can align with Ostrom's ideas for the governance of groundwater.
{"title":"Achieving Groundwater Governance: Ostrom's Design Principles and Payments for Ecosystem Services Approaches","authors":"W. Nsoh","doi":"10.1017/S2047102522000164","DOIUrl":"https://doi.org/10.1017/S2047102522000164","url":null,"abstract":"Abstract Groundwater is a largely unseen common pool resource. Yet, driven by strong economic incentives, whether or not encouraged by existing policies, and the difficulty to exclude others, groundwater users are competing with each other to extract as much as possible, with devastating consequences for its sustainability. The challenges faced for sustainably managing such common pool resources, on which people have established de facto individual rights, are manifold. However, creating a market for trades of some kind in ecosystem services associated with groundwater could actually enhance the protection of this critical resource on the basis that protection can benefit individual groundwater users economically as well as provide a broader public good. This article uses Elinor Ostrom's design principles as an analytical tool to examine how market-based approaches such as payments for ecosystem services (PES) fit with some of the governance models that could be used to protect and enhance groundwater as a common pool resource. It argues that while there are specific design challenges to be overcome, PES as an institutional tool can align with Ostrom's ideas for the governance of groundwater.","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":"11 1","pages":"381 - 406"},"PeriodicalIF":4.3,"publicationDate":"2022-05-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48677134","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}