Cinnamon Carlarne

Transnational Dimensions of Climate Governance

Climate Change as an Arena of Transnational Environmental Law it is fitting that the second issue of Transnational Environmental Law (TEL) focuses on governance and climate change. Transnational environmental law views governance as an outgrowth of local, regional and transboundary communications and pressures. The challenges of transnational governance – and its necessity – are especially clear in the context of climate change. On the one hand, climate change is a global phenomenon with globally distributed causes, thus requiring a global response. On the other hand, emissions always take place from specific locations within particular jurisdictions, and the impacts of climate change will vary from place to place, requiring diverse adaptation measures. Thus, it is inherent in the nature of climate change that responses will be multi-scalar and multi-jurisdictional, raising profound issues of governance. Moreover, because of the ubiquity of climate and of the activities causing emissions, climate governance modifies rules that govern private control over resources – in other words, with the property system.

Transnational Environmental Law on the Threshold of the Trump Era

Since its inception Transnational Environmental Law (TEL) has focused on the complex web of interactions across national borders in addressing environmental issues, including but going beyond the traditional domain of international environmental law. The content of TEL has been diverse but has encompassed several pervasive themes: mutual influence between legal systems, multilevel integration, regime fragmentation and overlap, and the erosion of traditional hierarchies, as governance frameworks evolve against a backdrop of uncertainty, contestation and unpredictable change. The last of these factors, unpredictable change, is vividly illustrated by the historical context in which this issue will appear, with that change taking the form of Donald J. Trump’s ascension to the United States (US) presidency. Although the final shape of Trump’s policy agenda is not yet clear at the time of this writing, all indications suggest a sharply different US role in terms of international environmental law. As a candidate, Trump expressed disbelief in the reality of climate change and pledged to repudiate the Paris Agreement and to repeal the Obama Administration’s signature regulation of carbon emissions, the Clean Power Plan. Trump’s cabinet nominees have close connections with the fossil fuel industry, and nearly all have a history of denying the reality of climate change. Most strikingly, his nominee to head the Environmental Protection Agency (EPA) has also expressed doubts about the reality of climate change and is best known for suing the EPA to halt climate and air pollution regulations. Thus, although Trump has proved

Norms, Networks, and Markets: Navigating New Frontiers in Transnational Environmental Law

True to its mission, the second issue in volume two of Transnational Environmental Law (TEL) delves into the many and varied ways in which environmental governance is evolving beyond the state. The articles in this issue explore topics as diverse as: accountability in interpreting European Union (EU) framework norms; the role of third party actors in combatting transnational environmental crime; the rationales for socially responsible investing; the possibilities and pitfalls of using market-based tools to improve biodiversity conservation; and the need to develop a grundnorm premised on notions of planetary boundaries for our system of international environmental law. Yet, despite the range of topics and the depth of each of the individual articles, together they reveal an increasingly dominant set of questions in transnational environmental law. These questions concern the role that the market and market-based mechanisms can and should play in environmental protection and the varied ways in which non-state actors, whether in conjunction with or outside the parameters of the state, influence efforts to further environmental conservation and sustainability efforts. Secondary questions that arise within the context of exploring the influence of markets and non-state actors on environmental protection centre on questions of legitimacy and accountability. All of these inquires, however, are framed by two larger background questions: what is the underlying goal of international environmental law and concomitant systems of transnational environmental governance, and how can we go about creating governance systems that are more unified in their understanding of the baseline objectives and thus more symbiotic in their implementation? By engaging with questions about international environmental norms, the evolution of regional legal systems, and more overtly transnational governance challenges, this issue reminds us of the value of transnational environmental law as a framing mechanism for exploring the ways in which traditional and novel systems for environmental protection emerge, evolve, and intersect. In a world increasingly characterized by globalization and global environmental problems such as climate change, these intersections have become both more frequent and more intense, making it all the more important to find ways to conceptualize and respond to these challenges. The articles in this issue, in their individual and collective forms,

By All Available Means: New Takes on Established Principles, Actions and Institutions to Address Today’s Environmental Challenges

With international negotiations under way to promulgate the Sustainable Development Goals (SDGs) and a post-2020 climate change agreement anticipated by the end of this year, 2015 promises to be a milestone for environmental governance. The process to develop the SDGs, which will build upon the Millennium Development Goals and converge with the broader United Nations (UN) post-2015 development agenda, was launched at the June 2012 UN Conference on Sustainable Development (UNCSD), better known as Rio+20. Thus far, the process has been an exemplary model of public participation. The UN has conducted the largest consultation programme in its history and has used a range of mechanisms, including traditional working groups, national consultations, and an online global survey to ascertain what the SDGs should include. The SDGs comprise 17 goals, within which are a proposed 169 targets. They are expected to be finalized and adopted at the UN Sustainable Development Summit in September 2015. At the same time, the negotiations for the 21 session of the Conference of the Parties (COP-21) to the United Nations Framework Convention on Climate Change (UNFCCC), to be held in Paris in December 2015, have been proceeding apace. At the sixth Petersberg Climate Dialogue in May 2015, German Chancellor Angela Merkel emphasized that climate finance will be a decisive factor in whether the Paris COP-21 is a success or a failure. In this regard, it is noteworthy that the Green Climate Fund became operational on 21May 2015; it can now begin to select and fund projects, which, it is hoped, will bolster the confidence and trust of developing countries ahead of

The Future of the UNFCCC: Adaptation and Institutional Rebirth for the International Climate Convention

On the twentieth anniversary of the negotiation of the United Nations Framework Convention on Climate Change (UNFCCC) and the fifteenth anniversary of the negotiation of the Kyoto Protocol to the UNFCCC, it is time for the global community to reflect on the future of our system of global climate governance. This article argues that the valiant efforts of the global community to negotiate a post-Kyoto treaty system have arrived at a crossroads and that instead of focusing on finding the single “right” pathway forward, there is a need to pursue multiple pathways. The conventional wisdom that we need one, consensus-based, comprehensive treaty is wrong or – more accurately – woefully incomplete. There is a continuing need for an international, top-down system that defines the parameters of global goals, obligations and relationships. However, the optimistic vision of this top-down system as a great enabling device is no longer viable. Multilateralism and multilateral legal mechanisms remain essential. Yet, regardless of when a new international climate agreement emerges or what form it takes, it will be too little and too late unless there exists a web of multi-level, multi-scale systems to give meaning and life to its provisions. Focusing on adaptation, this article suggests that diversifying international efforts to support a more multifaceted system of climate governance is a matter of efficacy and institutional integrity. In key part, the article concludes that in order to move forward with efforts to address climate change and, in particular, adaptation, the UNFCCC must embrace institutional reform and find ways to more effectively orchestrate the emerging multi-level governance system.

On Localism and the Persistent Power of the State

On June 1, 2017, President Trump declared that the United States would “cease all implementation of the non-binding Paris Accord and the draconian financial and economic burdens the agreement imposes on our country.” The United States’ de facto withdrawal from the Paris Agreement represented an important inflection point for conceptualizing the role of nonstate actors in addressing climate change. President Trumps announcement was met with an outpouring of resistance and widespread and concerted efforts to mobilize substate, nonprofit, and private actors to step into the void created by his announcement and to help keep the United States on track to pursue domestic and international commitments to address climate change despite federal recalcitrance. Within the leadership void created by the Trump Administration and amidst the increasingly extensive body of sub- and nonstate climate efforts, it is tempting to decenter the role of the state or to underestimate the persistent power of the state to shape the approach and effectiveness of nonstate actions. Failing to recognize that the state retains significant power in this field undermines efforts to understand the realities within which nonstate actors operate. This creates a set of heightened expectations for these actors that defies the reality of the political, economic, and social resources available to them and masks the challenges inherent in relying upon a fragmented, shifting, and differently accountable set of actors to effect pervasive change.

The Emergence of New Rights and New Modes of Adjudication in Transnational Environmental Law

The year 2015 ended on a euphoric note for many in the environmental law community. The climate negotiations in Paris (France) in late November and December, proceeding in the face of tragic terrorist attacks in that city only weeks before, yielded an historic agreement that may well serve as the international baseline for decades to come. We suspect that some will regard the 21 session of the Conference of the Parties (COP-21) to the United Nations Framework Convention on Climate Change (UNFCCC) as a belated victory for old-style international law. Yet the final agreement is far from old-style, for the parties relinquished the insistence, so manifestly present at COP-20 in Copenhagen (Denmark), on binding emissions reduction targets and rigorous enforcement mechanisms. What COP-21 has produced instead is scaffolding upon which states must supply nationally determined contributions (NDCs), established in a transparent, multilevel fashion. The Paris Agreement thus represents a different and more optimistic way forward, and one that relies deeply on the augmentation of alternative approaches to environmental governance. Discussions concerning precisely these alternative approaches have filled the pages of this journal during its formative years. On that note, we gratefully pause to recognize that 2016 is TEL’s fifth anniversary year. Since its launch TEL has published rigorous and challenging pieces on topics ranging from climate change adaptation law and regulatory convergence in nanotechnology governance to the legality of a meat carbon tax. That TEL fills an important niche in environmental

A Celebration of the Fifth Anniversary of Transnational Environmental Law

It gives us tremendous pleasure to introduce the Fifth Anniversary Issue of Transnational Environmental Law (TEL). To mark the occasion, last year the TEL Editorial Board launched a competition for innovative scholarship on the theme of common but differentiated responsibilities (CBDRs) in the era of transnational law. It was hotly contested: over 25 abstracts were submitted which, after careful selection and full peer review, resulted in the eight top quality articles that make up this very special issue. Each of the eight anniversary issue articles makes a strong contribution to the burgeoning field of transnational environmental law. A competition, however, obviously needs a winner. We are delighted to announce that the Transnational Environmental Law Fifth Anniversary Prize winners are Sébastien Jodoin and Sarah Mason-Case with their article ‘What Difference Does CBDR Make? A Socio-Legal Analysis of the Role of Differentiation in the Transnational Legal Process for REDD+’. We extend them our warmest congratulations. As winners of the competition, Dr Jodoin and Ms Mason-Case have been invited to deliver the TEL Fifth Anniversary Public Lecture, which will take place in Cambridge (United Kingdom) in February 2017. We refer our readers to the TEL website at http://journals.cambridge.org/jid_TEL for further details of the time and venue. Reviewing and choosing between eight diverse and compelling scholarly contributions is no easy task. The TEL Editorial Board is therefore extremely grateful to Professor Jacqueline Peel for her willingness to adjudicate the competition. As one of the world’s leading scholars in international and transnational environmental law, and an experienced TEL author herself, we could not have wished for a scholar more suited to the task. Her decision was reached based on an assessment of anonymized versions of the articles. Immediately following this brief Editorial is a Foreword by Professor Peel, in which she frames the CBDR theme in the rapidly evolving context of transnational climate change law, discusses the contribution of each anniversary article to the theme, and conveys the reasons for

Contesting Assumptions and Unmasking Myths: Key Components of the Mission and Methodology of Transnational Environmental Law

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 beyondmainstream topics and inquiries. The contributors to this issue ofTEL 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

Pursuing Transnational Policy Change

Environmental problems do not respect national boundaries, and efforts to resolve those problems often collide with the tragedy of the commons. Once scientific knowledge has helped to set the agenda by identifying potential environmental risks, substantial barriers to cooperation must be overcome, including divergent interests among the relevant actors, the need for political support in multiple jurisdictions, the potential for free riding, and the normal difficulties of coordinating the actions of multiple entities. Indeed, as Bodansky says, the ‘obstacles to international cooperation present a picture that is so daunting that it is hard to conceive how international environmental cooperation has ever emerged’. Yet, cooperation has been forthcoming in a number of contexts, both between national governments through international law and through alternative transnational mechanisms. Environmental problems remain pressing, and a key issue for study is how cooperative action to address a problem comes into existence. At least equally important is the question of how existing cooperative efforts can be strengthened to deal more adequately with environmental risks. This is no easy task even in the setting of domestic regulation in developed countries. It is exponentially more difficult in a context of multi-jurisdictional problems and in a world that includes countries at all stages of economic and political development. The articles in this issue, while diverse in their subject matter, share a common theme: the problem of identifying ways of changing policy in a complex and often resistant governance system. As a new departure for TEL, some of the articles also feature replies and rejoinders that allow for scholarly discussions to form and probe issues in greater depth. Taken as a whole, the articles and commentaries in this issue