This article assesses the implications of national climate litigation for what is termed ‘the international rule of law’. Starting from the finding that the current international climate treaty regime lacks several elements of an international rule of law, such as legal bindingness, clarity, and justiciability, the author explores what national courts contribute to filling these gaps. Deviating from a linear progression narrative, which is prevalent in existing literature, this article provides a more nuanced and complex picture. Whereas successful climate litigation is hardly imaginable without reliance on internationally agreed-upon facts – such as reports by the Intergovernmental Panel on Climate Change and global average temperature levels deemed ‘dangerous’ – doctrinally decisions do not represent a turn toward a stricter rule of international climate law. Instead of applying and progressively developing climate treaties, courts thus far have primarily used these provisions only to develop national constitutional law and regional human rights law. The created system of highly contextual national rule(s) of climate law is a fragmented one which is regionally limited to a few states predominantly located in Western Europe. Consequently, it is a far cry from a truly global rule of international climate law.

Climate change emergency requires rapide and determined action. The procrastination of the French state is not without consequences. One of them is that the High Administrative Court (Conseil d'Etat) found that climate risk is not taken seriously enough and is insufficiently addressed. In two decisions ruled in 2020 and 2021, the Conseil d'Etat in France had the opportunity to express itself on these issues. This is the case known as “Grande Synthe”, referring to the city that filed the petition before the High Court, in an appeal for “exces de pouvoir” –exces of power -, asking the administration to take further action in the fight against climate change. Civil society in France is indeed becoming impatient and taking legal action challenging the lack of ambition of the State in climate matters. The decision commented here will no doubt serve as a model for other similar decisions and for other European countries. It will lead to an increase of climate litigation in France and abroad.

Agricultural emissions in most countries have been increasing against a backdrop of decreasing non-agricultural emissions. The climate change treaties contain a qualification that appears to exempt the agricultural sector from mitigation of greenhouse gas emissions where there is a ‘threat to food production’. This potential mitigation exception gives rise to the risk that states will invoke a threat to food production in order to shield their agricultural sector from intensifying mitigation pressure. A systematic analysis of documentation issued pursuant to the climate treaties reveals that many states, both developed and developing, have made statements suggesting that their agricultural sector is relieved of some or all of the pressure placed on other economic sectors to deliver mitigation outcomes. However, this concern that mitigation of agricultural emissions will threaten food production is only weakly supported, even as it threatens achievement of the Paris Agreement's goal of keeping global warming ‘well below 2°C’.

A principle that prohibits States from weakening their domestic levels of environmental protection continues to emerge at varying speeds within international trade, investment and environmental law. This article explores the principle's diverse history, rationale and legal expression in each of these domains and finds that its various articulations in different international treaties suffer the same shortfalls and deficiencies. Non-regression clauses may leave the complexities and nuances of implementing environmental protections unaddressed, including identifying and measuring when a regression has occurred and balancing these environmental protections with other legitimate policy and environmental measures. As these clauses are increasingly subject to investor–State and State–State dispute procedures, States expose themselves to heightened liability for changes to their environmental laws, even where those changes might be legitimate and reasonable. The particular emergence of this principle in environmental law offers treaty-makers an opportunity to clarify the rights of States to derogate from otherwise narrowly drafted clauses that require them to maintain their level of environmental protection strictly.

The question of how best to tackle anthropogenic climate change is a thorny one: besides scientific uncertainty regarding the consequences of climate change, another difficulty is that the recommendations of climate experts may clash with the priorities of citizens, interest groups and political institutions. With the European Green Deal, the European Union (EU) recently made significant advances in climate policy; at the same time, and as is well known, the EU and its institutions have long been criticised for their “democratic deficit” and for their failure to involve all civil society actors equally in EU law-making processes. This article sheds light on the legal framework governing civil society participation in EU law-making, and more specifically on the Commission’s consultations pursuant to Article 11(3) of the Treaty on European Union. It then critically assesses selected features of two consultations conducted by the Commission in connection with the European Climate Law, which it evaluates from the perspective of the EU primary law principles of democracy, openness and transparency. Through this analysis, and by suggesting how future climate consultations could be further improved, the article aims to contribute to the (still nascent) legal scholarship on civil society participation in environmental and climate policy.

This paper investigates the knowledge of the general public on the legislative framework relating to wildlife conservation in England, with a specific focus on the Bern Convention and the public's awareness of the treaty, as well as the domestic legislation transposing it. By creating a publicly available survey, the study determined the environmental attitudes of the public and their knowledge of the legislative regime relating to wildlife conservation. Whilst the majority of the public displayed pro-environmental attitudes and support for greater efforts towards the conservation of flora and fauna, the overall awareness of the legislation was worryingly low, with only 5.6% of respondents recognising the Bern Convention. Accordingly, the study investigated how awareness of environmental legislation may be increased. Ultimately, the paper concludes that formal environmental education, including legislation, must be optimised, and the domestic legislative framework should be further consolidated.

Law – through regulation, criminalization and litigation – provides key mechanisms for mitigating the harmful effects of oil disasters. At the same time, these mechanisms also enable the perpetuation of oil disasters under an extractivist imperative. This disaster tolerance is the point of departure for this article's examination of the legal response to the 2010 Deepwater Horizon disaster over the last decade. Based on a methodology that combines a social harm approach with the political ecology of Felix Guattari, we firstly present a reconceptualization of harm inflicted by oil corporations across three registers: environment, society, and subjectivity. We subsequently introduce the concept of transversal harm, which allows us to move beyond the criminal and civil damage of corporate crime and negligence and to capture the collective and continuous impact of oil extractivism, as opposed to the exceptional impact of oil disasters. Transversal harm opens new avenues for assigning corporate responsibility and reducing disaster tolerance as the by-product of environmental law.

In this paper, we begin reflecting on how ‘futures literacy’ – recently championed by UNESCO as a vital skill that allows people to better understand the role of the future in what they see and do – might be developed in environmental law pedagogy. Law and legal analysis tend to be absent from futures scholarship and we discuss various ways of engaging with environmental law as an important but underexplored site and means of future-making. We consider our shared teaching of an undergraduate module in which students examine historical legislation for what it says about past ideas of the environment's future and the action within the law necessary to safeguard it; and contemporary texts, including science fiction and poetry, imagining a future for the environment on and through which law operates. Futures literacy, we argue, is at its richest when ‘historical futures’ and ‘future futures’ are read together, or alongside one another.

The global climate crisis poses many risks; for instance, relating to the environment, to the economy and to public health. The mitigation and management of such risks create a complex and multifaceted regulatory conundrum that requires quick, flexible, efficient and adaptive policy solutions that transcend the state level. A quick look in the body of regulatory instruments employed in the field of climate change policy will reveal that soft law is used very frequently by the European Commission to aid with the application, transposition and interpretation of European Union (EU) environmental legislation relating to climate change. While soft law has become ever more prominent in the EU legal order and has been studied extensively at the ex-post phase (ie concerning its effects or effectiveness), little academic attention has been paid to the process of soft law-making. In simple terms, we know very little about how soft law instruments are made. This article peeks behind the scenes of soft law and examines the transparency and participation credentials of the articulation process of Commission Guidance Documents in the field of climate change regulation adopted under key legal acts in the field.

This paper makes a case for the integration of compulsory climate change topics across the core law curriculum. It argues that the most persuasive rationale for this is based in climate legal obligations and institutions, and a clear-eyed perception of climate risk, rather than the sustainability agenda. To this end, the paper outlines efforts taken to ‘mainstream’ climate change and environmental law education in a core course of the LLB degree – land law. An empirical study sought to evaluate the students’ engagement with these materials, and their broader views concerning climate change and their legal education. The paper critically evaluates the course and the results of the empirical study. It concludes that students want to be, and should be, taught climate law and the climate context of law as part of their prescribed learning throughout the core curriculum, rather than as optional or elective content.

Most modern-day environmental issues are caused by the complex aggregation and interaction of numerous actions contributing to large-scale problems, from biodiversity loss to climate change. Environmental impact assessments (EIAs) consider how projects contribute to these cumulative environmental problems. This article firstly evaluates the theoretical importance of cumulative effects concepts for EIA. It reveals their potential to spotlight values embedded in decision making and to illuminate, as a lighthouse would, types of harm from broad-ranging, typically unregulated, activities. A large-scale global survey of national EIA laws and multilateral environmental agreements then shows that cumulative effects concepts are legally relevant for most national EIA frameworks. This prevalence suggests that better implementation of cumulative effects provisions may help EIA law to deliver more significant benefits than previously appreciated. Evaluating a sample of EIA provisions shows that cumulative effects concepts can contribute to different stages of an EIA, but that using these concepts across all EIA stages would maximize their potential to achieve the theoretical benefits identified. From theoretical and practical legal perspectives, cumulative effects concepts have significant latent potential – perhaps transformational potential – to address cumulative environmental change through EIA regimes at national and international levels. However, without better implementation, the latent potential of these laws to address cumulative environmental problems is likely to remain unrealized. By shedding light on the extent of national and international legal frameworks that adopt cumulative effects concepts, and their differences, this article highlights the significant learning potential between legal regimes to aid improved implementation.

Environmental rights such as the right to a sound environment and rights of nature, while playing an increasingly important role in global environmental governance and protection, frequently do not correspond to articulations of fundamental experiences of injustice by communities particularly affected by serious environmental degradation caused by, for example, extractive activities or major infrastructure projects. We present three empirically grounded case studies that employ concepts and methods from anthropology to demonstrate this. The work is still in progress, but sufficiently well advanced to present some findings. Our ethnographic research in Ethiopia and Mongolia reveals that vulnerable local communities take recourse to constitutional environmental rights far less often than expected. The reasons for this range from rule-of-law issues to local perceptions of vulnerability and relevant norms. Conversely, where environmental rights are demanded or claimed at the local level, they are often not translated adequately into the law of the state. Our case study on Ecuador, where rights of nature as a specific type of environmental rights have been included in the constitution, shows that transfers from local practice, while potentially having a transformative effect, may lead to conceptual selectivity, ambiguity, lack of clarity, and overlaps with existing state norms and, hence, redundancies. Environmental rights are, therefore, a moving target whose concrete added value hinges on context—as methods of law and anthropology serve to illustrate.

Climate change mitigation calls for the limitation and reduction of greenhouse gas (GHG) emissions across all sectors. However, limiting GHG emissions from aviation has proven to be problematic for technical reasons (e.g., lack of low-carbon alternatives) as well as legal reasons (e.g., international aviation does not readily fall within any one state's jurisdiction). Relevant initiatives have followed two streams. At the international level, the International Civil Aviation Organization (ICAO) has adopted technical standards and, more recently, a market-based mechanism to limit emissions from international civil aviation. In parallel, states have adopted their own policies and measures to regulate emissions from both domestic and international aviation, ranging from tax and technical standards to traffic management and infrastructural development. While much of the literature on climate change mitigation in the aviation sector has focused on international efforts, this article reveals the importance of understanding the tensions and complementarities of the two streams.

The Natura 2000 network, the pillar of biodiversity conservation in Europe, still shows some knowledge gaps after almost 30 years since its implementation. As birds are a taxonomic group that is underrepresented in the literature related to Natura 2000 compared to their importance in the EU Directives, this review investigated the characteristics of the scientific research dedicated to birds in relation to Natura 2000. This review focused on 169 peer-reviewed articles covering a period of 25 years (1995–2019). Most studies were set within single Natura 2000 site or regions within countries, and concerned terrestrial habitats, particularly wetlands. The terrestrial Mediterranean biogeographical region and marine Atlantic region had the greatest number of publications, while Spain, Italy, and France were the countries with the highest number of reviewed articles. The number of publications was correlated to Natura 2000 coverage at both country and biogeographical region level. Bird species were studied mainly at a community or single-species level and most publications studied distribution and occurrence of the bird species of interest, while very few assessed the conservation status of the species. Only a few articles set within Natura 2000 sites addressed the issues of habitat suitability for birds or the effectiveness of conservation efforts. Both Annex I and non-Annex I bird species were examined in the literature, with most species having decreasing population trends at the European scale. Future research on bird conservation and Natura 2000 should focus on marine ecosystems as well as habitats that have received less attention despite their important role in a changing future (alpine and urban types). Moreover, future studies should encompass larger spatial scales and those species for which status and trends are still not thoroughly investigated. Finally, it would be important to enhance research efforts on the conservation status and effectiveness in relation to the network.

The Supreme Court of the Netherlands construed the state’s positive human rights obligations as requiring a 25 per cent reduction of its greenhouse gas emissions by 2020 compared with 1990 levels. This article explores how judges can decide the level of state effort required to mitigate climate change. To date, judges have predominantly approached this issue by seeking to identify an elusive benchmark, either by deduction from global objectives or induction from state conduct. This article shows that the judicial assessment of a state’s requisite efforts inevitably relies on equity infra legem. Acknowledging this, judges could learn from the international courts’ experience with establishing clarity in the midst of vague legal rules.

This article deals with the sea level rise phenomenon caused by the climate change process and its impact on the statehood of so-called disappearing island states as well as on the consequent factual and legal status of their populations. In classical international law doctrine, the loss of a state’s territory will lead to the extinction of statehood and, consequently, the loss of that state’s international legal personality, and possibly also to the statelessness of its nationals. This article proposes an alternative solution based on the transformation of disappearing island states into new non-territorial subjects of international law — “climate deterritorialized nations” — as successors to disappeared inundated states.

Assessments of the relationship between trade agreements and the climate regime often focus on the potential for normative conflict. Concerns that trade commitments may prevent the adoption of measures to curb climate change, or at least that these are two regimes that “point in different directions,”1 are often voiced to suggest that taking climate action requires fundamentally modifying, and maybe getting rid of, current trade agreements. In this essay, we argue that allegations of conflict disregard longstanding World Trade Organization (WTO) jurisprudence on policy-justified trade measures. As a matter of principle, this alleged conflict has been essentially overcome since the 1998 Appellate Body report in United States – Shrimp.2 Focusing on potential conflict distracts from the real challenges and dilemmas involved in designing and implementing a global carbon regime, including through the trade instruments known as carbon border adjustment mechanisms (CBAMs and so-called “climate clubs”), for which the legal parameters provided by trade agreements may be instrumental.