The Emergence of New Rights and New Modes of Adjudication in Transnational Environmental Law (original) (raw)
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‘This Battle is Hard and Huge’: Intractable Problems in Transnational Environmental Law
Transnational Environmental Law
Environmental challengesnotably climate changeare often characterized as 'wicked' problems: 1 societal in scope, such problems encompass countless stakeholders, defying consensus as to solution and even definition. 2 Wicked problems present as intractable and irreducible. Remedial action along one dimension may ramify in multiple sets of consequences downstreamsome helpful, some unhelpful, some disastrouswith no clear way in science or in politics to predict ex ante which will dominate, or if a given characterization can even secure accord among the relevant stakeholders. 3 In such cases the 'battle' is, in poet Amanda Gorman's memorable words to the United Nations, 'hard and huge'. 4 It might seem like certain environmental challenges are no longer quite so 'wicked'. In our previous editorial we noted several encouraging diplomatic and legislative developments in the field of environmental law: 5 for example, the United Nations (UN) General Assembly's recognition of the human right to a clean, healthy, and sustainable environment, 6 and the US$1.2 trillion Infrastructure Act enacted into law by the Congress of the United States (US). 7 To this list we can now add two more such developments. At the 27 th Conference of the Parties (COP-27) to the UN Framework Convention on Climate Change (UNFCCC) 8 in Sharm el-Sheikh (Egypt), a historic 1 F.
Transnational Environmental Law, 2014
One of the driving aspirations of Transnational Environmental Law (TEL) is to serve as a platform for challenging the status quo. From its inception, TEL has embraced original scholarship that asks provocative questions and challenges long-standing assumptions, that combines methodological rigour with an openness to new and interdisciplinary approaches, and that seeks to extend the debate beyond mainstream topics and inquiries. The contributors to this issue of TEL have seized the challenge of contesting assumptions and unmasking myths with both hands. It is with great pleasure that we introduce the fruits of their dedication and commitment to innovation in this Editorial. The issue opens with a series of five articles that emerged from a symposium organized by Douglas Kysar and Joanna Dafoe at the Yale Center for Environmental Law and Policy and held at Yale Law School, New Haven, CT, United States (US), on 9-10 November 2012. The title of the symposium, 'Global Climate Change Policy Without the United States: Thinking the Unthinkable', refers to a question that preys on the mind of many, but that only few dare to utter: what if we abandon the conventional wisdom that robust US participation is an essential ingredient of any successful global climate change mitigation regime? If we abandon the assumption that, at some point in the not too distant future, the US government and legislature will rally to the cause of global climate change mitigation, will this open our eyes to solutions and alternative pathways to get around the obstacle of non-participation or non-compliance by a major global actor? From the articles featured in this issue of TEL it appears that, even if none of the contributors would be inclined to write off the possibility of a more engaged US in the future of global climate change policy, the act of relinquishing hope can be bracingly productive. There is a future for climate change law and policy without the US or, to cast it in more general terms, outside the traditional context of a large-scale multilateral agreement. It goes without saying that none of the alternatives contemplated in the symposium articles muster a full response to the enormity of the climate change challenge. However, they do underscore that one of the redeeming features of complex problems is that they offer multiple angles of attack, evolving along with the challenge itself. Moreover, by examining the scope for use, available at https:/www.cambridge.org/core/terms.
Ten Years On: Rethinking Transnational Environmental Law
Transnational Environmental Law, 2021
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 that TEL's initial ten years witnessed more 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. 1 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, 2 and the Paris Agreement 3 marked a significant departure from earlier approaches to climate change under international law. 4 1
Transnational Environmental Law in an Era of Radical Rethinking and Widespread Law Reform
Transnational Environmental Law
Certain periods in environmental law are characterized by the frenzied development of new norms and legal tools. The development of early domestic and international environmental law in the 1970s, the burst of activity surrounding the Rio Earth Summit in 1992, 1 the unveiling of the United States (US) Clean Power Plan in 2015, 2 and even the rapid negotiation and coming into force of the Paris Agreement 3 exemplify these moments of high-profile development. At other points, environmental law is pushed and pulled and evolves in a quieter and more incremental fashion. During these periods, the hard work of shaping systems of environmental governance continues. Treaties are amended, domestic regulatory regimes are shaped, litigation progresses, and local entities whittle away at a variety of energy and environmental challenges. At the time of writing, we are concluding a month of high-profile blows to existing systems of environmental law. In August 2018, President Trump took dramatic steps to reshape US climate change law; the United Kingdom (UK) government warned of the far-reaching impacts of a no-deal Brexit; the French environment minister resigned in frustration over climate inaction; and Australia failed to pass legislation to limit greenhouse gas emissions. Less visibly, during the same month, the stock of e-cars sold in Europe reached one million; California's legislature adopted a new, more aggressive renewable energy mandate; the Trump administration faced multiple setbacks in court that impeded efforts to roll back domestic environmental laws; and a revision of the North American Free Trade Agreement (NAFTA) 4 was negotiated to include stronger environmental enforcement provisions. Amidst these legal challenges and incremental changes, China and Europe experienced record heat this summer;
Oxford University Press eBooks, 2019
This paper discusses how international law has responded to climate change, focussing on the challenges that have faced the implementation of existing climate treaties, and on the suitability of the Paris Agreement to address these. It specifically reflects on international law-making and on the approach to climate change governance embedded in the Paris Agreement, drawing inferences from the past, to make predictions on what the future may hold for international climate change law.