1 Easterbrook, Frank H., Cyberspace and the Law of the Horse, (1996) U. CHI. LEGAL F. 207–16Google Scholar

2 See Lessig, L., ‘The Law of the Horse: what cyberlaw may teach’, (1999) 113 Harvard Law Review 501-45CrossRefGoogle Scholar.

3 For a useful attempt to introduce a taxonomy of human enhancement see Cohen, G., ‘What (if anything) is wrong with human enhancement? What (if anything) is right with it?’ (2013) 49 Tulsa Law Review, 645 Google Scholar.

4 For an ethical approach, see Gardiner, S.M., ‘Some Early Ethics of Geoengineering the Climate: A Commentary on the Values of the Royal Society Report’, (2011) 20 Environmental Values 163–88CrossRefGoogle Scholar; Gardiner, S.M., “Is Arming the Future” with Geoengineering Really the Lesser Evil? Some Doubts about the Ethics of Intentionally Manipulating the Climate System, Policy Responses to Climate Change in Gardiner, S.M. et al (Eds.) Climate Ethics (Oxford: Oxford University Press, 2010), 284–312 Google Scholar. For a legal approach towards adaptation see Craig, R.K., ‘“Stationarity is dead ” – Long live transformation: five principles for climate adaptation law’, (2010) 34 Harvard Environmental Law Review, 10–73 Google Scholar. Harris, P.G., World Ethics and Climate Change: From International to Global Justice (Edinburgh: Edinburgh University Press, 2010)Google Scholar; Hayward, T., ‘Human Rights Versus Emissions Rights: Climate Justice and the Equitable Distribution of Ecological Space’ (2007) 21 Ethics & International Affairs, 431-50CrossRefGoogle Scholar; Posner, E. and Weisbach, D., Climate Change Justice (Princeton: Princeton University Press, 2010)CrossRefGoogle Scholar; Taylor, P.E., ‘From Environmental to Ecological Human Rights: A New Dynamic in International Law?’, 10 (1997) Geo. Int'l Envtl. L. Rev., 309-98Google Scholar.

5 See the deliberate release in the Cayman Islands, Malaysia, and Brazil of genetically modified mosquitos in attempts to put an end to dengue fever without recourse to hazardous pesticides, with promising results. http://www.theatlantic.com/health/archive/2014/09/engineering-mosquitoes-to-stop-disease/379247/.

6 Regarding the compatibility with international environmental law, see Reynolds, J., ‘Climate Engineering Field Research: The Favorable Setting of International Environmental Law’ (2014) 5 Washington and Lee Journal of Energy, Climate, and the Environment 417-86Google Scholar.

7 See Williams, A., The Ethos of Europe: Values, Law and Justice in the EU (Cambridge: Cambridge University Press, 2010)CrossRefGoogle Scholar

8 Dir. 2014/52/EU amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment, OJ [2014] L 124/1.

9 Dir. 92/43/EEC on the conservation of natural habitats and of wild fauna and flora, OJ [1992] L 206/7.

10 Article 191 TFEU provides:

1. 1.

   1. Union policy on the environment shall contribute to pursuit of the following objectives:

2. –

   – preserving, protecting and improving the quality of the environment, (emphases added)

3. –

   – protecting human health,

4. –

   – prudent and rational utilisation of natural resources,

5. –

   – promoting measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change.

6. 2.

   2. Union policy on the environment shall aim at a high level of protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay.

7. In this context, harmonisation measures answering environmental protection requirements shall include, where appropriate, a safeguard clause allowing Member States to take provisional measures, for non-economic environmental reasons, subject to a procedure of inspection by the Union.

8. 3.

   3. In preparing its policy on the environment, the Union shall take account of:

9. –

   – available scientific and technical data,

10. –

    – environmental conditions in the various regions of the Union,

11. –

    – the potential benefits and costs of action or lack of action,

12. –

    – the economic and social development of the Union as a whole and the balanced development of its regions.

13. 4.

    4. Within their respective spheres of competence, the Union and the Member States shall cooperate with third countries and with the competent international organisations. The arrangements for Union cooperation may be the subject of agreements between the Union and the third parties concerned. The previous subparagraph shall be without prejudice to Member States’ competence to negotiate in international bodies and to conclude international agreements.

11 Most recently, the centre of gravity test was applied in Case C-81/13 United Kingdom v Council (judgment of 18 Dec. 2014, not yet reported). The Court repeated that ‘[a]ccording to settled case-law, the choice of the legal basis for a European Union measure must rest on objective factors amenable to judicial review, which include in particular the aim and content of the measure.’ (Para. 35).

12 Article 168(5) TFEU provides:The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, may also adopt incentive measures designed to protect and improve human health and in particular to combat the major cross-border health scourges, measures concerning monitoring, early warning of and combating serious cross-border threats to health, and measures which have as their direct objective the protection of public health regarding tobacco and the abuse of alcohol, excluding any harmonisation of the laws and regulations of the Member States.

13 See for example Dir 2009/29/EC amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community, [2009] OJ L 240/63.

14 N. 9 above

15 The most detailed analysis is probably still by Kramer, L., EC Treaty and Environmental Law (London: Sweet & Maxwell, 1998)Google Scholar.

16 N. 9 above.

17 See Art. 4 Dir. 92/43/EEC, ibid.

18 See Commission Note on the Designation of Special Areas of Conservation (SACs) Final Version of 14 May 2012, published on the internet at https://circabc.europa.eu/sd/a/eaab0066-5360-4ec2-8a04-c180475634fc/Commission%20note%20on%20SAC%20designation.pdf.

19 Art. 11 Dir. 92/43/EEC, n. 9 above.

20 [2001] OJ No. L 106/1.

21 [1998] OJ No. L 330/32.

22 Ibid., Art. 4(2).

23 Ibid., Art. 7(1).

24 Ibid., Art. 8(2).

25 See Sandel, M., The Case Against Perfection, (Cambridge (MA), Harvard University Press: 2009)Google ScholarPubMed. But see the response by G. Kahane ‘ Designing Children and Respect for the Given’, Proceedings of the 2012 Uehiro-Carnegie-Oxford Ethics Conference published on the Internet at http://www.practicalethics.ox.ac.uk/__data/assets/pdf_file/0006/29733/Kahane.pdf. See also Kahane, G.: ‘Mastery without mystery: Why there is no Promethean sin in enhancement’, (2011) 28 Journal of Applied Philosophy 355–68CrossRefGoogle Scholar.

26 Lewis, L. and Maslin, M., ‘Defining the Anthropocene’ (2015) 519 Nature 171.CrossRefGoogle ScholarPubMed.

27 See ‘Cloned goat dies after attempt to bring species back from extinction’ The Independent 2 Feb. 2009. Available on the internet at http://www.independent.co.uk/news/science/cloned-goat-dies-after-attempt-to-bring-species-back-from-extinction-1522974.html (last visited 24 Feb. 2015). Attempts to bring back the Pyrenean ibex from extinction are ongoing.

28 See ‘The Mammoth Cometh’, The New York Times 24 Feb. 2014. Available on the internet at http://www.nytimes.com/2014/03/02/magazine/the-mammoth-cometh.html?_r=0 (last visited 24 Feb. 2015). On candidates for de-extinction see http://longnow.org/revive/ (last visited 24 Feb 2015).

29 Article 22 of of Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora (see n. 8 above) answers that question as follows: In implementing the provisions of this Directive, Member States shall:‘(a) study the desirability of re-introducing species in Annex IV that are native to their territory where this might contribute to their conservation, provided that an investigation, also taking into account experience in other Member States or elsewhere, has established that such re-introduction contributes effectively to re-establishing these species at a favourable conservation status and that it takes place only after proper consultation of the public concerned;(b) ensure that the deliberate introduction into the wild of any species which is not native to their territory is regulated so as not to prejudice natural habitats within their natural range or the wild native fauna and flora and, if they consider it necessary, prohibit such introduction. The results of the assessment undertaken shall be forwarded to the committee for information (…).’

30 On the problem of hybrids on nature conservation law, for example, see Trouwborst, A., ‘Exploring the Legal Status of Wolf- Dog Hybrids and Other Dubious Animals: International and EU Law and the Wildlife Conservation Problem of Hybridization with Domestic and Alien Species’, in: (2014) 23 Review of European, Comparative & International Environmental Law, 111-24CrossRefGoogle Scholar.

31 See Erisman, J.W. et al., ‘How a Century of Amonia Synthesis Changed The World’, (2008) 1 Nature Geoscience 636-39CrossRefGoogle Scholar.

32 J. Rockström et al., ‘A Safe Operating Space for Humanity,’ Nature 461, no. 24 (Sept. 24, 2009).

33 These are land-use change, biodiversity loss, nitrogen and phosphorous levels, freshwater use, ocean acidification, climate change, ozone depletion, aerosol loading, and chemical pollution.

34 Up to date information is available on the Internet at http://www.esrl.noaa.gov/gmd/ccgg/trends/. In February 2014 the level stood at 400.26.

35 See, for example, Kahnemann, D. and Tversky, A., ‘Prospect Theory: An Analysis of Decision under Risk’, (1979) 47 Econometria 263-92CrossRefGoogle Scholar.

36 The term ‘ecological anxiety disorder’ has been coined to denote the state of paralysis that has ensued among conservation biologists, restoration ecologists and the like, because of the rapid loss of ‘environmental baselines, grounded and normal conditions from which to make objective assessments for advocating interventions in the world.’ See Robbins, P. and Moore, S.A., ‘Ecological Anxiety Disorder: Diagnosing the Politics of the Anthropocene’, (2013) 20 Cultural Geographies, 3–19 CrossRefGoogle Scholar.

37 For qualitative challenges ot ‘climate law’ and more generally ‘adaptation law’ see Ruhl, J.B. and Salzman, J. ‘Climate Change Meets the Law of the Horse’ (2013) 62 Duke Law Review p. 975 et seqGoogle Scholar. See also Graham, J.D. and Wiener, J.B., Risk vs. Risk Tradeoffs in Protecting Health and the Environment (Cambridge: Harvard University Press, 1997)Google Scholar.

38 Input legitimacy is derived from participation by citizens and measured by the degree of responsiveness to their concerns. Output legitimacy is judged on the basis of the effectiveness of policies in furthering the interests of citizens. Throughput legitimacy refers to the efficacy, transparency and openness of the EU’s governance process as such. See Schmidt, V.A., ‘Democracy and Legitimacy in the European Union Revisited: Input, Output and ‘Throughput’’, (2013) 61 Political Studies 2–22 CrossRefGoogle Scholar. See also Borrás, S., Koutalakis, C. and Wendler, F., ‘European Agencies and Input Legitimacy EFSA, EMeA and EPO in the Post-Delegation Phase’ (2007) 29 Journal of European Integration 583–600 CrossRefGoogle Scholar.

39 The REACH regulation implements an important innovation in this respect. Reversing preceding chemicals legislation, it stipulates that unless producers of chemicals can show a substance to be safe the substance cannot be marketed. See Fleurke, F.M. and Somsen, H., ‘Precautionary Regulation of Chemical Risk: How REACH Confronts the Regulatory Challenges of Scale, Uncertainty, Complexity and Innovation, (2011) 48 Common Market Law Review, 357-93Google Scholar.