As international negotiations struggle to deliver timely, binding commitments to reduce greenhouse gas emissions to safe levels, the environmental legal community has begun to contemplate the scope for climate governance ‘beyond’ the international climate change regime. Many see merit in a more decentralized, disaggregated approach, operating across multiple governance levels. This article examines the development of climate change law in an era of multi-level governance. It analyzes several case studies of current manifestations of multi-level governance in climate change law, including the fragmented global emissions trading system, developing arrangements governing forests and land-based sinks, the growth of climate litigation establishing transnational liability principles, efforts to ensure adaptation to unavoidable climate change, and the emergence in federal systems of a decentralized approach to climate change regulation. The article concludes by considering whether the emerging multi-level system of climate governance is adequate to meet broader international goals of climate change mitigation and adaptation.

A crucial question for international law is how to allocate regulatory jurisdiction over transboundary problems between sovereign states. Insufficient clarity can trigger disputes such as that regarding the legality of the EU Directive that extends its ETS to all flights taking off from or landing at an EU airport, including those by non-EU carriers. This article uses this dispute as the vehicle to examine sovereignty in an increasingly interdependent world. It argues that a state’s decisional inviolability is central to sovereignty. Decisional sovereignty allows a state to regulate actors or activities with a link to its territory when these affect the state’s domestic affairs, rather than leaving the state at the mercy of an actor’s home state or of other states from the territory of which the problem emerges. Moreover, allocation of regulatory jurisdiction in conformity with decisional sovereignty reduces the incentives to free-ride on other states’ regulatory efforts and incentivizes international cooperation.

The European Union Emissions Trading System (EU ETS) is the largest mandatory programme of its kind. The entitlements in emissions allowances (emissions entitlements) combine public and private law characteristics: allowances are tradable, commercially valuable regulatory instruments. This dual nature reveals a new interdependency between public and private law mechanisms in the context of climate change policy. This article argues that achieving the requisite level of emissions reductions is contingent on the viability of the emissions market, and that both are dependent on the definition of emissions entitlements. This view is supported by a case study which identifies the practical and serious consequences of the absence of a legal concept of emissions entitlements. The United States (US) Acid Rain Program offers useful lessons on the treatment of emissions entitlements. They can be further defined by analogy with similar rights regimes. Their nature is highly relevant to the emissions market, particularly to the commercial contracts that constitute it.

When we speak of transnational environmental law and legal process, we are concerned with the migration and impact of legal norms, rules and models across borders. Such migration can occur through the mediation of international law and institutions, or through the impact of unilateral legal developments in one jurisdiction that affect behaviour in others. The paper discusses the importance of assessing transnational environmental law in light of the constraints facing consent-based international environmental law, examines the trade-offs between transnational and international environmental law from the perspective of legitimacy, and concludes by discussing the important but delicate relation of international law to transnational environmental law as both a check and a consolidator. International law should guard against the self-serving unilateral use of transnational environmental law, but it should do so in a way that preserves (and does not shut off) the dynamic, responsive character of the transnational environmental law process. Otherwise international law itself will be delegitimized.

The concept of transnational environmental law is used descriptively and prescriptively to refer to a multitude of legal processes which are distinct from transnational law in other legal areas. Hence, the rise of transnational environmental law requires environmental lawyers to reflect on their skills and knowledge and to foster both their contributory and interactional expertise in this area. That process of fostering expertise needs to be seen in light of a number of intellectual challenges, including the necessity to engage with comparative environmental law methodology, the need to not privilege one legal system over others, the need to engage with extended legal pluralism, the importance of thinking about the role of language in legal processes, and the significance of understanding the process of co-production.

This article investigates the environmental and economic impact of the free allocation of emissions allowances in Emissions Trading Schemes (ETSs) as well as its compatibility with trade law. Free allocation can facilitate the industry’s gradual adjustment to an ETS and hence boost its acceptability. At the same time, however, the article shows that the economic and environmental benefits of free allocation are debatable. Moreover, the practice of free allocation possibly contravenes WTO law. The conclusion that free allowances may constitute an objectionable subsidy under WTO subsidy disciplines raises questions of law reform. Should the ETS be reformed to fit conventional trade imperatives, or should trade law be rethought so as to be responsive to contemporary environmental protection strategies? The article argues that, considering the questionable benefits of free allocation, any adjustment to trade law should be narrow and temporary.

Since the 1972 Stockholm Conference on the Human Environment, ecological pressures on our planet have grown more acute. Yet, modern environmental law has also continued to evolve and spread within international as well as among national legal systems. With the paths of international and national environmental law becoming increasingly intertwined over the years, international environmental legal norms and principles are now penetrating deeper into national legal systems, and environmental treaties are increasingly incorporating or referencing national legal norms and practices. The shifting legal landscape is also changing contemporary environmental law practice, creating greater needs for domestic environmental lawyers to be informed by international law and vice versa. This essay describes how domestic environmental law practice is increasingly informed by international legal norms, while the effective practice of international environmental law more and more requires enhanced awareness, and even understanding, of national environmental regulatory and governance systems. It illustrates these trends with the historical role and work of the United States Environmental Protection Agency’s Office of General Counsel.

In light of the urgent need for coastal adaptation policies and the impediments to their implementation, this article examines the early experience with coastal adaptation policies in the EU (in particular the Netherlands and the UK) and Australia, with a view to identifying the important features of an effective regulatory framework for coastal adaptation. We conclude that an integrated approach to coastal adaptation law is currently needed to lay the foundations for the required long-term strategy. Such an approach would establish processes by which adaptation objectives are agreed for each part of the coast, ensure land use planning that can accommodate future change and does not expose new communities to risk, integrate coastal adaptation with biodiversity and coastal zone policy, allocate regulatory responsibility in a way that promotes subsidiarity and consistency, and ensure that funds are available for future measures.

Reducing emissions from deforestation and forest degradation with the help of the emerging REDD+ mechanism provides an opportunity to combine climate protection with biodiversity conservation and poverty alleviation. However, one of the crucial questions is how the rights of indigenous peoples and local communities will be protected in REDD+ implementation. This article depicts the challenges involved in protecting the rights of local communities in the case of Mozambique. The study finds that constraints regarding property and participation rights arise, in particular, from incomplete procedures of delimitation and titling, corruption, lack of rights awareness, lack of democratic structures within the community or poor infrastructure. Because many states with a REDD+ potential are not able to guarantee sufficient rights protection, the REDD+ mechanism itself needs to be endowed with strong safeguards for the rights of indigenous peoples and local communities.

This contribution focuses on the challenges that regional organizations face as they are increasingly confronted with, and need to respond to, transboundary and global environmental problems. Ever more frequently, environmental issues that begin as matters of national concern rapidly become transboundary in scope. As exemplified by the outbreak of avian flu, integrated national, regional and international efforts are necessary to tackle transboundary environmental issues which, by their very definition, call for a coordinated effort. This article will concentrate on the impact of transboundary environmental challenges on the objectives and functions of the Association of South East Asian Nations (asean).

Dominant analytical approaches to environmental law exhibit a similar, problematic form: they treat that which should be outcome determining as, instead, outcome determined. This form is most evident and influential in the welfare economic technique of regulatory cost–benefit analysis, which treats all resources – including the monetary value of human lives – as potential means towards seemingly higher yielding ends. In contrast, an environmental constitutionalism, in which certain needs and interests of present and future generations, the global community, and other forms of life are given foundational legal importance, would help to restore conceptual coherence and normative priority to the subjects of environmental law.

This commentary summarizes the events at the recent UN Conference on Sustainable Development, commonly referred to as Rio+20, noting both the role of official national delegations and the diversity of non-state parties that were involved in a variety of venues at and around Rio+20. It sketches the background of sustainable development efforts, maps the road from the original 1992 Rio Earth Summit to the 20th anniversary gathering, and comments on the Conference’s outcomes and their implications for international law and legal institutions. In answer to the much debated question of whether the Rio+20 was a success or a failure, or something in between, the author concludes that the Conference, while disappointing to many, may have furthered the cause of sustainable development by producing a document which reflects a baseline of international norms and by fostering the increasingly important role of civil society action, commitments and partnerships, and of transnational governance.

This paper traces back the efforts, in particular in Europe, to promote transnational legal provisions which grant a right of access to environmental information. Initiatives in the 1970s failed to establish a fundamental right to a clean environment. However, the establishment of fundamental procedural rights of access to information, participation in decision-making and access to justice in environmental matters has been more successful – culminating in the 1998 Aarhus Convention. This paper describes the – until now unsuccessful – attempts to extend the territorial scope of application of the Aarhus Convention to non-European countries and regions, and ultimately the conclusion of a global convention on access to environmental information.

There is growing interest in a framework for responsible research and innovation within Europe. This paper explores why this has come about and suggests that it is related to a concern with emerging and converging technologies that goes beyond a narrow conception of risk to the environment or to human health. Rather, there is a trepidation arising out of the transformative capacity of modern technologies and their stated aspiration to manipulate the natural world. In this context, the paper poses three central questions about the shape of any framework for responsible research and innovation. First, why is the target that of research and innovation? Secondly, at what scale should the framework operate? Thirdly, what form of governance structure would be best suited to the oversight of research and innovation?