‘This Battle is Hard and Huge’: Intractable Problems in Transnational Environmental Law

Abstract

Environmental challenges – notably climate change – are often characterized as ‘wicked’ problems: societal in scope, such problems encompass countless stakeholders, defying consensus as to solution and even definition. Wicked problems present as intractable and irreducible. Remedial action along one dimension may ramify in multiple sets of consequences downstream – some helpful, some unhelpful, some disastrous – with 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. In such cases the ‘battle’ is, in poet Amanda Gorman’s memorable words to the United Nations, ‘hard and huge’. 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: for example, the United Nations (UN) General Assembly’s recognition of the human right to a clean, healthy, and sustainable environment, and the US$1.2 trillion Infrastructure Act enacted into law by the Congress of the United States (US). To this list we can now add two more such developments. At the 27 Conference of the Parties (COP-27) to the UN Framework Convention on Climate Change (UNFCCC) in Sharm el-Sheikh (Egypt), a historic