After more than three decades of negotiations, the international response to climate change under the United Nations Framework Convention on Climate Change (UNFCCC) appears to have come full circle. At COP27, parties to the UNFCCC agreed to establish a multilateral fund to address loss and damage from global temperature rise, an idea that was initially put forward by the Alliance of Small Island States (AOSIS) in the early 1990s. Employing a historical critique, which draws upon archival and doctrinal research and interviews with key informants who participated in the early days of the Intergovernmental Negotiating Committee for a Framework Convention on Climate Change, this article examines the AOSIS proposal in its wider historical context, and provides reflections for the renewed endeavour to negotiate a multilateral fund on loss and damage, in particular with a view to achieving justice for climate victims.

‘Mainstreaming’ climate change by embedding climate change considerations in government policies, processes, and operations can bolster the realization of climate mitigation and adaptation goals and reduce risks of counter-productive actions. Some climate laws around the world now contain explicit mainstreaming duties, in parallel with emissions reduction targets and adaptation planning requirements. This article proposes a conceptual model for climate change mainstreaming in government, with two pillars. Firstly, it defines objectives of climate mainstreaming, emphasizing that mainstreaming activities occur along a spectrum of ambition towards a goal of ‘mature mainstreaming’. Secondly, it proposes three complementary pathways to mature mainstreaming – regulatory, institutional, and capacity and capability-building pathways – to classify mainstreaming activities, and barriers to and enablers of mainstreaming. Grounded in empirical insights from a leading jurisdiction (Victoria, Australia), the model can assist governments to clearly articulate mainstreaming objectives and to identify, prioritize, and monitor mainstreaming initiatives to help in achieving their climate policy goals.

In recent years, China has expanded its national weather modification programme to exploit climatic resources and adapt to climate change. The unprecedented scale of China's weather modification programmes has raised concerns over potential environmental impacts, including transboundary impacts. This article analyzes the domestic governance of weather modification in China and the extent to which this legal framework satisfies China's obligations under customary international law to minimize risks of significant transboundary harm. We find that existing arrangements do not satisfy procedural obligations under customary international law; nor do they adequately address the risks of environmental impacts associated with the increased use of weather modification. Procedures for transboundary environmental impact assessment (EIA) and engagement with regional neighbours are needed for China to comply with international law and promote stability in the region.

Law plays an important role in reshaping and enforcing governance efforts in radical shifts and can function as a catalyst for transitioning governance towards sustainability. This article assesses the capacity of law to facilitate decarbonization as a radical societal shift. It argues that decarbonization demands fundamental and systemic restructuring in law and legal thinking. This should also be reflected in legal scholarship and, most importantly from the point of view of this article, in the methodological choices and approaches that legal scholarship relies on to study societal challenges. To that end, the article develops a new methodological approach (disciplinary comparison) through which to study law's capacities in respect of decarbonization as a radical societal shift. Disciplinary comparison can be used to gain information on both the friction and the synergies between legal disciplines. This new methodological approach will contribute to increasing insight into law's capacities for the radical, cross-sectoral change necessitated by the need to decarbonize societies.

This article studies eight cities in four countries in the southern African region (Namibia, Zimbabwe, South Africa, and Botswana) to explore whether and how local governing authority has been channelled towards local climate-resilient development. The authors undertook a desk-based identification and review of available primary and secondary legal sources and normative documents while also drawing on scientific papers and policy documents for statistics and information about urbanization, climate change, politics, and governance in the selected countries. The analysis is interested in the law but is not strictly of a legal nature in the sense that the authors did not aim for a critical analysis of the regulatory detail in the relevant legal instruments. Instead, the article provides an evaluation of the political, de facto choices made by selected local governments as to how and to what extent to utilize their governing authority (legislative and executive) towards climate-resilient development. The authors explore if and how local government powers in the four southern African countries are currently leveraged for local climate action, and comment on the possible reasons for the status quo by comparing the four jurisdictions.

Private ‘bottom-up’ enforcement has been central to the efforts of the European Union (EU) to promote effective compliance with its ambitious environmental laws. This approach is strengthened by the EU's implementation of the Aarhus Convention, which aims to democratize environmental enforcement by conferring citizens and environmental non-governmental organizations (ENGOs) with legal rights of access to environmental information, rights of public participation, and rights of access to justice (the so-called ‘Aarhus mechanisms’). This article empirically assesses the extent to which the Aarhus mechanisms empower ENGOs to take an active role in the private enforcement of the EU Habitats and Birds Directives. Based on 75 surveys and 30 interviews with ENGOs from three Member States (France, Ireland, the Netherlands), we apply regulatory intermediary theory to show how European ENGOs play a vital role in intermediating between (i) EU Member States and their citizens, (ii) the EU and individual citizens, and even (iii) the EU and its Member States. We bring new empirical insights into the role of law as an enabler of regulatory intermediaries, and its potential as a tool for orchestrating regulatory intermediaries.

Recent geopolitical and environmental events have created a new urgency for a just energy transition and a socially inclusive modernization of the energy sector. This article critically evaluates the extent to which Article 194(1) of the Treaty on the Functioning of the European Union (TFEU), as the competence provision of EU energy law, is congruent with the energy justice framework emerging from social sciences. It establishes the substantive scope and justiciability of Article 194(1) TFEU, including the legal principles and so-called ‘guiding principles’ of the provision relating to the internal market, environmental protection, and energy solidarity. The article analyzes the potential and shortcomings of Article 194(1) TFEU in contributing to more equitable decision-making processes in EU energy law. It concludes by evaluating the provision as a regulatory instrument that facilitates the (re)balancing of competing interests of the energy sector. This research further concludes that social considerations of energy justice cannot be sufficiently addressed through Article 194(1) TFEU.

The rapid and widespread establishment of domestic environmental courts and tribunals raises important questions regarding their implications for international environmental law and global environmental governance. I use an interdisciplinary, multi-method approach to consider the capacity of domestic environmental courts to identify and apply norms and principles of international environmental law in domestic opinions. I first review existing literature, identifying jurisdiction, judicial discretion, and a court's position in a legal system as key institutional determinants of this capacity. I then develop a typology of domestic environmental courts and tribunals, which suggests that, all else being equal, a court with national geographic jurisdiction that also enjoys attributes of broad subject-matter jurisdiction and discretion may be expected to be best equipped to implement norms and principles of international environmental law. Next, I integrate existing assessments of environmental court presence with original outreach and web research to identify all countries which possess environmental courts, and assess a subset of eight existing national-level institutions. The analysis of this subset highlights the diversity of institutional models that can incorporate theorized best practices. Based on these findings, I draw several theoretical conclusions: specifically (i) the relevance of environmental court research to individual- and institutional-level analysis in transnational and international environmental law, (ii) the need for further legal-institutional analysis in global environmental governance scholarship, and (iii) the opportunity for further interdisciplinary analysis of the role of domestic courts in environmental governance.

In recent years, a number of jurisdictions have recognized diverse ecosystems and other-than-human organisms as legal persons. From national constitutions and legislation to subnational judicial decisions and ordinances, these legal experiments have extended legal personality to riverine and terrestrial ecological communities, including vast geographical areas and the beyond-human beings that inhabit them. A growing body of literature engages with these developments and, in particular, their consequences for states and governments. However, few analyses have considered the practical implications they may present for private organizations operating under company law. We address this research gap and explore potential challenges and opportunities that the recognition of ecosystems as legal persons may create for private legal persons, especially corporations. We also discuss the possible impacts and opportunities of the expansion of legal personality on company law and corporate practice more broadly, arguing for a reimagination of company law. This reimagination embraces an ethics of reciprocity, responsibility, and relationality between corporate entities, and ecological and human communities.

The environmental assessment literature has neglected the distorting effect of cognitive and unconscious motivational biases (CUMB) in environmental assessment processes. This is problematic because CUMB are present in most, if not all, decision-making situations and can significantly distort decision-making processes. This article assesses how debiasing techniques are, or should be, incorporated in (supra)national environmental assessment legislation. The Dutch case study undertaken for this article shows that EU and Dutch legislation do not sufficiently incorporate debiasing techniques to ensure sound environmental decision making. Furthermore, the extent to which Dutch legislation incorporates debiasing techniques was found to be decreasing. Based on these findings, the article presents ways to incorporate debiasing techniques in environmental assessment legislation more generally, and in EU and Dutch legislation in particular.

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.

The Rights of Nature movement has recently achieved significant successes in using legal personhood as a tool for environmental protection. Perhaps most famously, the Whanganui River in Aotearoa New Zealand was accorded legal personhood in 2017. These kinds of development have attracted plenty of scholarly interest, but few have scrutinized a foundational underlying question: Can natural areas, such as rivers, or other non-sentient natural entities actually be legal persons?

The case of the Whanganui River is an example of the direct legal personhood model: it purports to grant legal rights to the river directly. Some other jurisdictions have set up legal persons to administer rivers, without declaring the rivers themselves to be legal persons: the indirect legal personhood model. This article offers legal-philosophical arguments for why legal personhood cannot be attributed to rivers directly.

Normally, legal persons can hold claim-rights and be legally wronged. Some legal persons, such as human adults, can also be held legally responsible and exercise legal competences by entering into contracts. Natural entities cannot do any of these things. Hence, they cannot be legal persons directly; rather, their putative direct legal personhood will collapse into indirect legal personhood. Hence, treating natural entities as direct legal persons amounts only to a legal fiction. Such fictions may be justified for symbolic reasons. However, if environmental protection requires setting up a legal person to protect a natural entity, such protection in most cases can be realized without claiming that the natural entity itself would have become a legal person.

This article traces the various legal incarnations of the intergenerational equity principle. Despite its silent proliferation in international and constitutional laws over the past five decades, the principle dwelled mostly at the margins of inquiry and practice. Recent efforts to counteract global warming have allowed intergenerational claims to gain new traction. Building on a comparison of ten climate-related lawsuits, I analyze the latest advances in the representation, conceptualization, and remediation of future generations’ interests. Against the backdrop of growing willingness to engage with intergenerational disputes, legal decision makers will need to confront two thorny challenges going forward. Firstly, evolving doctrines of extraterritoriality and legal subjecthood increasingly require the protective scope of the principle to extend to foreign citizens and non-human persons. Secondly, awareness of dispersed and interlocked long-term risks may trigger the application of intergenerational doctrines beyond a narrow environmental frame. Grappling with these challenges implicates larger reflections about the role of law in contriving our collective future.

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.

Ownership has been a key tool in the exploitation of nature for centuries. However, ownership could also shield natural entities from extraction and pollution if it were vested in them, rather than in humans or corporations. Through a case study of German constitutional property law, this article examines the normative content of this constitutional right. It argues that in owning themselves, natural entities would have numerous tools to fend off human interference with their self-determination. Constitutional property law would require any harmful activity affecting the natural entity to be based upon legislation and necessary to achieve a public purpose. The natural entity would enjoy broader access to justice. Courts would also often award appropriate remedies; where the natural entity would be awarded only compensation, this would be unsatisfactory because money cannot replace nature. The article finds that constitutional property law offers the potential for further protection from human interference, which has not been realized because of anthropocentric value judgments prevalent in German legal doctrine. Ecocentric approaches to ownership and invalidity as a standard remedy would play an important role in unlocking the full potential of ownership for environmental protection.

Despite the growing prominence and use of Rights of Nature (RoN), doubts remain as to their tangible effect on environmental protection efforts. By analyzing two initiatives in post-colonial societies, we argue that they do influence the creation of institutionalized bridges between differing land-ownership regimes. Applying the methodology of inter-legality, we examine the Ecuadorian Constitution of 2008 and the Ugandan National Environment Act 2019. We identify five normative spheres that influence land-ownership regimes. We find that the established Ecuadorian RoN have an institutionalized effect on the nation's legal system. Their more recently established Ugandan counterpart shows potential to develop in the same direction.

This article argues that banks should adopt animal welfare policies in the light of the growing acceptance of the need for ‘responsible banking’, which incorporates environmental, social, and governance analysis into credit risk and due diligence processes. The responsibility of banks for animal welfare is underscored by the drive towards greater investment in animal agribusiness, and the vicious cycle through which animal agribusiness can both contribute to, and be impacted by, climate disruption. The article evaluates, through a desktop review, how leading Australian retail banks and agribusiness lenders are addressing animal welfare and climate disruption in animal agribusiness lending. We find that although most banks have made a commitment to animal welfare and climate policies, these often amount to little more than greenwashing. We call for an ecosystem of industry, regulatory, and civil society action to address this danger.

This article addresses the impacts of the carding system (green, yellow, red) of the European Union (EU) Regulation on illegal, unreported and unregulated (IUU) fishing on the fisheries laws of third countries. Specifically, it analyzes Thailand's national legal reforms, which followed interactions between the EU and Thailand during the yellow card period. Building on past research on the EU's use of market power to exert regulatory influence on third countries, the article explores other factors that might encourage third countries to engage in national regulatory reforms: the EU's powers of expertise, monitoring, and agenda-setting. Finally, the article also considers the legitimacy of the EU's regulatory power over third countries.

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.

Climate emergency declarations occupy a legally ambiguous space between emergency measure and political rhetoric. Their uncertain status in public law provides a unique opportunity to illuminate latent assumptions about emergencies and how they are regulated in law. This article analyzes climate emergency declarations in Canada, the United Kingdom, Australia, and Aotearoa/New Zealand. It argues that these climate emergency declarations reflect back a set of paradoxes about the legal regulation of emergencies – paradoxes about defining the emergency, how time regulates and contains emergency power, and who gets to respond to the emergency and how. These paradoxes challenge long-held and over-simplified assumptions about emergencies and allow us to see the complex ways in which public law regulates emergencies – a necessity in a climate-disrupted world.