Transnational Environmental Law最新文献

{"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":null,"pages":null},"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}

{"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":null,"pages":null},"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}

{"title":"An Apology Leading to Dystopia: Or, Why Fuelling Climate Change Is Tortious","authors":"L. Burgers","doi":"10.1017/S2047102522000267","DOIUrl":"https://doi.org/10.1017/S2047102522000267","url":null,"abstract":"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.","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":null,"pages":null},"PeriodicalIF":4.3,"publicationDate":"2022-06-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47396139","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}

{"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":null,"pages":null},"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}

{"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":null,"pages":null},"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}

{"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":null,"pages":null},"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}

{"title":"Transition rather than Revolution: The Gradual Road towards Animal Legal Personhood through the Legislature","authors":"Eva Bernet Kempers","doi":"10.1017/S2047102522000139","DOIUrl":"https://doi.org/10.1017/S2047102522000139","url":null,"abstract":"Abstract It is sometimes assumed that, in order for animals to be adequately protected by the legal system, their status first needs to change from property to person in one fell swoop. Legal personhood is perceived as the necessary requirement for animals to possess legal rights and become visible in law, distinguished from legal things. In this article I propose an alternative approach to animal legal personhood, which construes the road towards it as a gradual transition rather than a revolution. According to this alternative approach, animals become increasingly visible in law when their existing simple rights are shaped to function more like the rights of humans. Instead of a condition for the possession of rights, legal personhood should then be regarded as a (potential) consequence of growing animal rights.","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":null,"pages":null},"PeriodicalIF":4.3,"publicationDate":"2022-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41928239","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}

{"title":"The Duty of Care of Fossil-Fuel Producers for Climate Change Mitigation","authors":"B. Mayer","doi":"10.1017/S2047102522000103","DOIUrl":"https://doi.org/10.1017/S2047102522000103","url":null,"abstract":"Abstract On 26 May 2021, the District Court of The Hague (The Netherlands) passed an innovative judgment in Milieudefensie v. Royal Dutch Shell. The Court interpreted Shell's duty of care towards the inhabitants of the Netherlands as requiring it to mitigate climate change by reducing the carbon dioxide emissions resulting from its global operations by at least 45% by 2030, compared with 2019. This case comment salutes the identification of a corporate duty of care for climate change mitigation but expresses scepticism regarding the Court's interpretation of this duty. The Court's reading of global climate mitigation objectives and climate science, which form the basis of its determination of Shell's requisite level of mitigation action, is plagued with inconsistencies. It is argued here that, in order to determine the standard of care applicable to Shell, the Court should have relied not only on a ‘descending’ reasoning as to what ought to be done, but also on an ‘ascending’ reasoning accounting for industry practices.","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":null,"pages":null},"PeriodicalIF":4.3,"publicationDate":"2022-04-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49597619","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}

{"title":"Softness in the Law of International Watercourses: The (E)merging Normativities of China's Lancang-Mekong Cooperation","authors":"David J. Devlaeminck","doi":"10.1017/S2047102522000097","DOIUrl":"https://doi.org/10.1017/S2047102522000097","url":null,"abstract":"Abstract The law of international watercourses consists mainly of a series of bilateral, multilateral, regional, and global agreements that establish binding rules through which state parties jointly manage transboundary water resources. China similarly manages its shared freshwaters through a series of bilateral agreements. Increasingly, however, it relies on non-binding soft law instruments to manage these resources with its riparian neighbours. An important example of this is the Lancang-Mekong Cooperation, a branch of the Belt and Road Initiative. Its use of soft instruments, which recognize international law and promote projects, displays evidence of merging and emerging normativities, ensuring that it is capable of playing both a supporting and a developmental role in the law of international watercourses.","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":null,"pages":null},"PeriodicalIF":4.3,"publicationDate":"2022-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45888768","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}

{"title":"TEL volume 11 issue 1 Cover and Front matter","authors":"J. Zeben, Natasha A. Affolder, G. Calster","doi":"10.1017/s2047102522000140","DOIUrl":"https://doi.org/10.1017/s2047102522000140","url":null,"abstract":"","PeriodicalId":45716,"journal":{"name":"Transnational Environmental Law","volume":null,"pages":null},"PeriodicalIF":4.3,"publicationDate":"2022-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46013395","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}