Environmental Law as a Transnational Ecosystem

This editorial marks the tenth anniversary of Transnational Environmental Law (TEL) and the culmination of my time as one of its founding Editors-in-Chief. I am grateful for the opportunity to reflect on key developments in environmental law, on the impressive expansion of transnational environmental legal scholarship, and on the significance and strength of our community of environmental legal scholars.

1. TOWARDS THE AGE OF AGENCY IN ENVIRONMENTAL LAW

The landscape of environmental law has undergone a veritable transformation during TEL's first decade. We witnessed several landmark developments in international environmental law, first and foremost the adoption in late 2015 of the Paris Agreement,¹ which re-footed international climate change law on a new (and hopefully more sustainable) normative basis. Unquestionably, the Paris Agreement has been a game changer. It introduced, for the first time, an international legal target of keeping global heating to ‘well below 2°C [(degrees Celsius)]’, with an eye to further limiting this to 1.5°C.² Equally important is its inclusion of a collective, quantifiable goal of achieving net-zero by 2050, which is comparatively easier to operationalize as a benchmark than the overall temperature goal, and which can be used to assess the adequacy of developed countries’ climate change policies prospectively³ rather than only with the benefit of hindsight. With its reliance on a combination of internationally determined targets, nationally determined contributions towards their achievement, and five-yearly upward revisions, the Paris Agreement has set the tone for a new approach to implementation and compliance building in international environmental law. Its ethos, its design, and the myriad complexities that have sprung up in the wake of its entry into effect have been the subject of a diverse collection of contributions to this journal, and they will undoubtedly continue to inspire a wealth of research in years to come.

Apart from Paris, developments within the traditional sphere of environmental treaty law have been relatively modest. The year 2013 heralded the adoption of the Minamata Convention on Mercury⁴ – a significant contribution to the pursuit of health and environmental protection from harmful substances, but limited in scope compared with older siblings such as the 1985 Vienna Convention for the Protection of the Ozone Layer,⁵ the 1979 Convention on Long-Range Transboundary Air Pollution,⁶ or the 2001 Stockholm Convention on Persistent Organic Pollutants.⁷ On the subject of environmental rights, the most notable development of the past decade was the adoption of the 2018 Escazú Convention,⁸ which builds upon the blueprint of the 1998 Aarhus Convention⁹ to establish a legal framework for access to information, public participation and access to justice in environmental matters in Latin America and the Caribbean.

Finally, a recent and exciting new development in international environmental treaty law is the adoption of the Framework Agreement on the Establishment of the International Solar Alliance (ISA),¹⁰ discussed in this issue by Vyoma Jha.¹¹ While the ISA Framework Agreement underlines the abiding importance of treaty making, it is also a harbinger of fundamental change. With India as its chief promoter, the ISA signals the diversification of global environmental leadership beyond the usual suspects of North America and European-based countries. Countries of the global south have, of course, played prominent roles in the negotiation and adoption of environmental treaties before, but the initiatives were typically regional in scale, as in the case of the Escazú Convention, the Abidjan Convention for Cooperation in the Protection, Management and Development of the Marine and Coastal Environment of the Atlantic Coast of the West and Central Africa Region,¹² or the South-Asia Cooperative Environment Programme.¹³ By contrast, with 98 signatory states ranging from Australia to Zimbabwe, the ISA Framework Agreement is truly global in scale.

Moreover, Jha's article underlines the strong involvement of non-state actors in the establishment of the ISA Framework Agreement from its very inception.¹⁴ In this regard, too, the ISA is representative of a more fundamental change that is reshaping environmental law. The development of environmental law over the past ten years has furnished countless opportunities to reconsider the role, rights and responsibilities of state and non-state actors in the pursuit of a more sustainable future. This change manifests in a variety of ways. It is present in the strong role assumed by non-state actor alliances as advocates of legal change, as illustrated in the context of the ISA and, most recently, in the work of the Stop Ecocide Foundation to deliver a definition of the crime of ecocide¹⁵ for proposed inclusion in the Rome Statute of the International Criminal Court.¹⁶ It resonates in the growing practice of formally recognizing the importance of private sector participation in the pursuit of public environmental goals, in stronger awareness of the differentiated impact of both environmental harm and of the efforts required to address such harm on discrete groups in society, including women and Indigenous populations, and in a growing willingness to ascribe public duties, such as respect for human rights, to private actors and vice versa.

Indeed, notwithstanding the continued importance of treaty making, the truly transformative drive in environmental law these past ten years stems primarily from a decisive shift in perspective. What is changing is not only what environmental law looks like in terms of its substantive and procedural provisions, but how the law looks at the environment. Recent legal developments reflect a much stronger awareness of the agency of the natural world than the grand regulatory schemes of the previous 30 years would typically allow. Looking back at environmental legal milestones up to the current decade, from the adoption of the 1963 United States Clean Air Act to the launch of the 2008 Climate Change Act in the United Kingdom, we receive an image of the environment as object, as the passive recipient of legal attention. Within the technocratic framings of environmental regulation, the environment dwells as a disembodied, abstract concept – rarely defined, hardly ever differentiated. This stands in noticeably sharp contrast to the technological, industrial, and commercial processes featuring in the very same legal texts, which tend to be described much more vividly and in greater detail than the environmental communities and systems which they put at risk. The aim here is not to denounce this approach – a moment's reflection will affirm that perfectly sensible explanations exist to justify a foregrounding of technology in environmental regulation – but to underscore the radically different stance that characterizes some of the most inspiring developments in environmental law since 2012.

Most prominent among these developments are the changes in the legal status of nature, of particular natural entities and of non-human animals. Whereas at the start of the millennium any suggestion of bestowing rights upon the non-human natural world was at best greeted as an interesting theoretical exercise and at worst denounced as making a mockery of the very notion of rights, rights of nature are now an irreversible legal reality. As discussed in a rich complement of TEL contributions, Ecuador has famously enshrined rights of nature in its Constitution,¹⁷ and a variety of countries have recognized rights of nature, or of particular non-human natural entities, in legislation and case law.¹⁸

This is not the occasion to go into extensive reflection on the changes rung by the recognition of rights for non-human natural entities – an assignment to which many TEL authors have contributed with great skill and insight in the past years¹⁹ – but I will make a few short observations about the rise of rights of nature and the paradigm shift it represents in environmental law. Firstly, here as in any other context, when aspiration becomes reality, demystification is around the corner. Early experience confirms that bestowing rights onto nature, natural entities or non-human animals is not a magic bullet; it delivers neither a failsafe antidote to the combative anthropocentrism that tends to steer legal reasoning, nor a guaranteed fast track towards a greener world. This is not surprising, but nor should it be discouraging. New perspectives do not instantly generate different outcomes, but they do re-route the pathways via which we search for familiar destinations, and on this journey new opportunities will emerge, questions will arise and previously unseen inconsistencies may manifest. Ultimately, this new set of circumstances may enable us to break free from expectation and move towards decision making that is more in line with the new order. Environmental legal scholarship in the coming years has a unique opportunity to play a formative role in this process of discovery and gradual transformation.

The second brief but significant point relates to the transnational dimension of rights of nature. So far, their expression has happened either in the context of constitutional reform, through national legislation, or in domestic court rulings. Yet it would be naive to present their emergence in various jurisdictions as unrelated or isolated events or, conversely, as a straightforward case of ‘legal transplantation’ whereby a group of countries follow the lead of a pioneer.²⁰ Instead, the emergence of rights of nature exemplifies a much more complex and interdependent process of legal gestation, with different jurisdictions taking inspiration and at the same time distinguishing themselves from others. Coming to grips with the flux of simultaneous influence and differentiation is a crucial mission of transnational environmental law as a discipline, which will strengthen our understanding of the nature of law and legal change, and will vitally enhance our capacity to leverage change towards sustainability.

Recognition of rights of nature is a powerful exponent of the turn towards agency of the past ten years, but it is not the only one. A stronger preoccupation with agency has also begun to shape discussions about the legal status, entitlements and responsibilities of diverse groups of actors who have a distinctive relationship with different aspects of the environment, both in terms of their capacity to affect the environment, and in terms of their sensitivity to environmental change. In some settings, such discussions may help to problematize the legitimacy of legal and regulatory strategies that, advertently or not, cause the brunt of environmental destruction to be borne by the most vulnerable and marginalized members of society, and to foster a long overdue consideration of whether and how their voices can be heard and respected in environmental decision making. In other contexts, the agency that is now under increasing scrutiny is that of the very actors responsible for destructive environmental change. Just as the language of law and regulation tended to reveal little of the magnificent variety of species and ecosystems that huddled under the opaque denominator of ‘environment’, it also overwhelmingly favoured a nebulous conceptualization of the perpetrators of environmental harm. Environmental law recognized the principle that the polluter should pay but – with the arguable exception of litigation in the wake of large-scale environmental disasters such as Bhopal, Deepwater Horizon or Fukushima – it rarely displayed any great urgency to identify and responsibilize individual polluters. The unspoken but persuasive narrative instrumental in directing legal attention away from the agents of environmental harm was that there was little point in seeking out culprits because, in doing so, we would only encounter ourselves. Overwhelmingly, environmental degradation was (and to a degree continues to be) cast as a collective problem caused by society as a whole.

The representation of environmental degradation as the result of a collective failing has undoubtedly been essential in helping lawmakers and policymakers come to terms with the systemic scale of the challenge, and it has fostered a great deal of creativity in the design of environmental regulatory strategies. Yet, at the same time, recent developments reveal a discomfort with the narrative and a growing call to identify, among the amorphous masses of minor contributors, those who are considerably more responsible than others. Nowhere has this message resounded more clearly than in the realm of climate change litigation, a phenomenon which has truly taken the legal world by storm during the past ten years. Countries may shelter behind the collective character of international climate change obligations, and carbon majors may cling to rigid applications of ‘but for’ causation in an attempt to deflect liability, but both tactics are increasingly under pressure. As an intensified focus on agency reformats the legal landscape, questions of responsibility and remedy are bound to follow.

An intriguing question on which to end this brief discussion relates to the drivers of environmental law's turn to agency. What explains our stronger awareness of the environment as an active and living force, of the equally real and singular experience of communities affected by environmental change, and of the special responsibility of certain actors for the devastation inflicted upon human and non-human species? If allowed to speculate, I would venture that our enhanced awareness goes hand in hand with environmental harm and, particularly, climate change disruption becoming a lived reality within the global north. A heatwave focuses the mind and whets the appetite for accountability in a way that a succession of reports by the Intergovernmental Panel on Climate Change never could. This is a sobering explanation, as it uncompromisingly confronts us with the harsh limitations of empathy and solidarity, which enable us to look away as long as the suffering caused by environmental degradation is experienced only by other species or by people on the other side of geographical, social, economic, or generational divides. Moreover, it traps environmental law in a bittersweet irony as its growing importance is in no small measure a consequence of its spectacular failure to deliver on its mission. However ominous the reasons for its enhanced standing in the world, environmental law and environmental lawyers must seize this moment of change in order to strengthen the discipline and, hopefully, make the best possible contribution towards a less environmentally rapacious world.

2. THE CONTRIBUTION OF TRANSNATIONAL ENVIRONMENTAL LEGAL SCHOLARSHIP

Looking back at ten years of scholarship, it is indisputable that Transnational Environmental Law has made a towering contribution to the field. TEL authors have been at the vanguard in the identification and exploration of major environmental legal developments in the past decade, covering every one of the key themes highlighted in the preceding section, and more beside.

TEL has distinguished itself as a leading outlet for climate change scholarship on a seemingly boundless diversity of subjects, from the property status of emissions allowances²¹ to the pursuit of corrective justice for people displaced by climate change.²² At the same time, and true to the journal's mission, TEL authors have shown a particular strength in engaging with the transgressive aspects of the expanding climate change regime complex. A rich seam of TEL writing examines and critiques the intricate interplay of binding provisions and informal arrangements that populate the transnational legal sphere, and grapples with the challenge of institution building in a context that requires the orchestration of public and private inputs.²³ In TEL's inaugural issue in 2012, Charlotte Streck emphasized the need to create space for subnational and non-state actors within the global climate change regime, and underscored the deficiencies of the United Nations legal framework in delivering on this mission.²⁴ Her contribution in the present issue – submitted with a truly spectacular sense of timing – showcases both how much the conversation has evolved in the past ten years, and the inevitable new challenges and complications that every step towards transnationalization entails.²⁵ Climate change treaty law, she argues, is now much more receptive to the contributions of non-state actors, but the terms of engagement remain under-defined, which suppresses the potential for effective coordination. This is but one example of the many innovative pieces on transnational climate change law that have appeared between TEL's covers in the past ten years, and of the wealth of scholarship that is undoubtedly still to come.

TEL has also been the premier venue for original contributions on the emergence and evolution of private environmental governance;²⁶ climate litigation;²⁷ rights of nature;²⁸ animal rights and animal welfare;²⁹ technological risk governance;³⁰ transboundary pollution litigation;³¹ the daunting challenges of biodiversity protection, nature conservation and the protection of world heritage on land and at sea;³² contaminated land remediation;³³ the contribution of beauty to environmental law;³⁴ access to environmental information, participation and access to justice;³⁵ unregulated fishing;³⁶ and much, much more. TEL authors have made major contributions to the methodology of transnational environmental law as a maturing discipline and to the rapidly expanding body of environmental legal theory.³⁷ TEL has published doctrinal as well as empirical research³⁸ of outstanding quality, which has enhanced not only the field of transnational environmental law itself, but legal scholarship across subdisciplinary divides. Given this incredible richness, it is a touch indelicate to single out contributions for particular attention. Nevertheless, with apologies to the authors of the 183 other articles, commentaries and case comments that have graced the pages of TEL so far, I will briefly highlight three articles that hold a special significance for me.

The first is ‘Should Chimpanzees Have Standing? The Case for Pursuing Legal Personhood for Non-Human Animals’ by Alexia Staker.³⁹ Few things are as thrilling as seeing a former student succeed in publishing their LL.M. dissertation as a peer-reviewed article and, thanks to TEL, it is a privilege that I have experienced more than once. Dirk Heyen,⁴⁰ Cordelia Bähr,⁴¹ Roderic O'Gorman⁴² and Alexia Staker are all former LSE Masters’ students who have published excellent research in TEL, and shortly thereafter Alexia joined TEL's Assistant Editorial team, where she continues to do a sterling job to this day. Her article is an eloquent representation both of TEL's keen interest in supporting early career scholars, and of the boundary-pushing research that it champions. The second piece is ‘The Prevention Imperative: International Health and Environmental Governance Responses to Emerging Zoonotic Diseases’ by Patricia Farnese.⁴³ This article persuasively argues for stronger habitats protection from alien invasive species in order better to control the risk of viruses mutating and spreading across animal and human populations. It caused lively discussion at the time of its publication in 2014,⁴⁴ but few will have appreciated its prophetic quality ahead of the outbreak of a devastating global pandemic. Farnese's article vividly exemplifies the enormous potential for academic work to help and protect society, and the narrowmindedness of those who dismiss it as missives from an ivory tower with little bearing on ‘real life’. Last but not least is ‘Establishing a Governmental Duty of Care for Climate Change Mitigation: Will Urgenda Turn the Tide?’ by Josephine van Zeben.⁴⁵ Climate litigation scholarship is so plentiful today that it might be easy to forget that, only six years ago, it was the work of real pioneers. Josephine's thoughtful discussion of the Urgenda decision, completed mere months after the Dutch Court of First Instance issued its ruling, was among the first scholarly contributions on the subject, and arguably the very first to explore thoroughly the transnational dimensions of the case. At the time of publication, Josephine was an Assistant Editor for TEL, and she joined the TEL Editorial Board in 2017. Now, as I finalize this anniversary editorial, Josephine is gearing up to take over my role and join Thijs Etty as co-Editor-in-Chief. I could not be more delighted to leave the journal in such expert hands.

Finally, before offering a few reflections on my time as Editor-in-Chief, I would like to revisit briefly the theme of diversification of environmental leadership. TEL contributions discuss law and governance in an abundance of different countries, from Chile⁴⁶ to Russia⁴⁷ and from Greenland⁴⁸ to Aotearoa New Zealand.⁴⁹ The importance to transnational environmental legal scholarship of studying a rich diversity of legal systems, and of listening to a range of different voices, cannot be overstated. For all its interest in the transgressive, one of the discipline's key vulnerabilities is that its very conception of transnational environmental law is heavily beholden to Euro- and Anglo-centric legal thought, which may render it paradoxically parochial. Engaging with environmental law and governance on a truly global scale, and encountering different understandings of what it means to have a transnational perspective, are essential for the discipline to thrive. Admittedly, it would be disingenuous to ignore that authors, and particularly scholars located in the global south, face significant obstacles in publishing in journals such as TEL, including but not limited to lesser access to sources, lack of local mentorship and support, and language barriers. It would be equally wrong-headed to suggest that TEL by itself is capable of safeguarding the transnational legal ecosystem from the risk of parochialism, all the more since the majority of its publications still are authored by scholars working at European, North American and Australian institutions. However, neither should it dim the pride in the excellent quality and rich variety of scholarship from across the globe which has been featured over these past ten years, nor temper the ambition to broaden the base of TEL contributors, and of the range of legal systems they explore, in the next decade.

3. ENVIRONMENTAL LEGAL SCHOLARSHIP AS A TRANSNATIONAL ECOSYSTEM

To be a Founding Editor of Transnational Environmental Law has been the greatest privilege of my academic career. It has also been the most educational and enriching experience of my professional life. Some of the lessons learned were comically mundane and involved frantic late-night searches for revised versions of manuscripts which had seemingly disappeared into cyberspace, only to be retrieved from something called ‘downloads.temp’ the next morning. More enduringly, however, the editorship of TEL has changed my understanding of environmental legal scholarship and brought home the extent to which community is a formative force in even the most singular and idiosyncratic of academic outputs. The community of environmental legal scholars is different, and so much richer, than the sum of its parts; it is a transnational ecosystem on which we all depend in more ways than we surmise.

Unsurprisingly, the most immediate way in which my time at the helm of Transnational Environmental Law has shaped this perspective is by witnessing, time and again, the vital influence of editorial work on the development and fine-tuning of legal argumentation. It is perhaps wise at this point to reassure TEL authors that this is not a surreptitious ploy for ex-post writing credits – editors have as much claim to authorship as midwives have to parenthood, but they do play an important role in a safe delivery. It is work in which I have taken great pride these past ten years. I am also deeply grateful to every TEL team member, past and present, for their editorial contributions, from performing first-cut assessments of newly submitted work to reading the final revision of article proofs, the latter being one of the many tasks which has been carried out with great skill and unfailing good humour by our brilliant copy editor Elizabeth McElwain, who has been with TEL since its launch.

Academic editorship is often demanding and, admittedly, rarely remunerated. Yet that does not mean it is thankless. In the first place, our community of transnational environmental scholars shows an acute awareness of the importance of editorial support, and TEL contributors have been incredibly generous in their expression of appreciation to team members. Never has this been truer than during the past two years, as the COVID-19 pandemic has thrown quite a spanner into the tasks that undergird the day-to-day management of peer-reviewed publications. In this period, TEL fortunately has been blessed with the continued support of the academic and publishing community, not least from our stalwart peer reviewers who, in spite of exploding workloads and the added weight of anxiety, have kept on accepting invitations and turning in valuable feedback. As a consequence, we are weathering the storm with relatively minor disruption, but those contributors who have experienced editorial delays have invariably borne them with kindness and understanding. Secondly, the relationship between author and editor is very much a two-way street. Editors have a front-row seat to the latest developments in legal scholarship. They get to survey a broad array of material, which keeps them well informed on all the hot topics of the discipline and enables them to discern new themes and trends ahead of the general readership. Editorial engagement with academic writing also hones the editor's writing skills in a way that cannot be achieved by reviewing self-authored material. It enriches the editor's vocabulary and exposes them to a range of different organizational and presentational styles. These are implicit but invaluable rewards of academic editorship.

As it is for editorship, so it goes for peer review. Given the stakes involved, it is understandable that the process occasionally stirs up memories of examinations past, but it is arguably closer to its true nature to think of peer review as a facilitator of constructive conversations between members of the scholarly community. The overwhelming majority of reviewers read extremely carefully and take great pains to be constructive and encouraging in their assessment. During my tenure at TEL, contributors typically have shown great appreciation of the work that peer reviewers do, and authors tend to respond with admirable poise and grace, even to criticism that does not pull its punches. I have also learned that, barring the very rare occasions where a review consists of ticked boxes and not much beside, there truly is no such thing as a ‘bad’ review, as even the process of working out and explaining why a reviewer got the wrong end of the stick, and revising a text to avoid other readers making the same mistake, invariably improves the output. Moreover, peer review, too, is mutually inspirational – it is by engaging with the work of others that we discover what is distinctive about our own thought processes and opinions, and that we strengthen our ability to convey them.

I have greatly enjoyed watching TEL develop and mature into a major hub within our wonderful, vibrant and challenging transnational ecosystem of environmental legal scholars, and I owe a major debt of gratitude to everyone who has enabled me to be part of this great venture. Most of all, I am more thankful than I can express for Thijs Etty, co-founder of TEL and fellow Editor-in-Chief, who has valiantly decided to carry on his editorial responsibilities beyond the ten-year mark. I have never known a better colleague. I will miss our collaboration very much, but I look forward to our lasting friendship.