'The Transnationalisation of Law: Rethinking Law Through
Transnational Environmental Regulation'
LSE Law Society and Economy Working Paper Series, 04-2016
This working paper argues that the rise of transnational regulation has a
transformative impact on law. It examines the field of transnational
environmental regulation to show that its proliferation challenges the continued
appropriateness of representations of law as: (i) territorial, (ii) emanating
from the state, (iii) composed of a public and private sphere, (iv) constitutive
and regulatory in function, and (v) cohesive and regimented. Instead, law is
increasingly perceived as (i) delocalised, (ii) flowing from a plurality of
sources, (iii) organisationally inchoate, (iv) reflexive and coordinating in
function, and (v) polycentric. Together, these shifts in perception amount to a
transformation that the paper identifies as the transnationalisation of law. The
paper then explores three responses to the transnationalisation of law. It
distinguishes responses motivated by a desire to reclaim the traditional
conception of law from those that seek to reconstruct law at the transnational
level and, thirdly, responses that advocate a context-responsive
reconceptualisation of law. Each response, it will be shown, creates a different
set of opportunities for and challenges to the relevance of law for
transnational regulation.
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(with Justine Thornton and Richard Drabble) 'With Reference
to the Environment: The Preliminary Reference Procedure, Environmental Decisions
and the Domestic Judiciary' (2014) 130 (July) LQR pp.413-442
Relatively few UK judges refer questions on the interpretation of EU environmental law to the European Court of Justice (ECJ). The reluctance of the judiciary in this regard appears to stem in large part from concerns about, firstly, the long delay introduced by the reference procedure, secondly, the variable quality of ECJ rulings and, thirdly, the hierarchical nature of its interactions with the ECJ. However, the dearth of references jeopardises the effectiveness of European Union law and, arguably, the quality of domestic adjudication.
The most obvious response to this problem would be to incentivise or compel national judges to make more references. Doing so, however, would exacerbate a countervailing but equally pressing problem. The ECJ already has more work than it can comfortably handle. The experience from the environmental field therefore lends further credence to growing calls for ECJ judicial reform.
The article invites the ECJ and the EU Treaty makers to re-think the preliminary reference procedure so that its supportive and emancipatory features are emphasised and its formalistic, bureaucratic and overbearing tendencies suppressed. Irrespective of European wide reform, the article suggests there are steps that the domestic judiciary could take to improve the preliminary reference procedure.
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‘What's in a Name? The Covenant of Mayors
as Transnational Environmental Regulation (pages 78–90); Vol
22(1) RECIEL (2013).
This article asks whether the Covenant
of Mayors – a transnational network that aims to reduce
CO2 emissions in European towns and cities – amounts to
transnational environmental regulation. It answers in
the affirmative. The relevance of treating the Covenant
of Mayors as transnational environmental regulation is
that this triggers qualitative expectations about how
decision-making power will be wielded within the
network. The article indicates that the Covenant is
likely to clear some of these qualitative hurdles, but
may struggle with others. This calls for further
deliberation on how to bolster the legitimacy of
transnational environmental regulation without forsaking
its flexibility and innovative drive. Considering that
the outlook for the swift, successful adoption of a
global, binding regulatory regime for climate change is
bleak, the world will likely remain dependent on
alternative, transnational initiatives as drivers for
change. The ramifications of this debate therefore
considerably exceed the scope of the Covenant of Mayors
itself.
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'Regulatory Competition - Accounting For the Transnational
Dimension of Environmental Regulation'
Journal of Environmental Law (2012) 25 (1) pp.1-31
This article argues that the study of
regulatory competition can be significantly enhanced by
taking into account the impact of transnational
environmental law and regulation. The rapid growth of
environmental regulation beyond the level of the state does
not foreclose opportunities for competition, but it will
affect how environmental regulators compete. Most
importantly, national as well as non-state regulators may
become less inclined to ‘race to the bottom’ or ‘race to the
top’. Instead, transnational environmental regulation
triggers the emergence of new competitive patterns that
respond more strongly to the design, mode of
instrumentalisation, implementation and governance of
environmental standards than to their quantity and
stringency.
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‘Introducing Transnational Environmental Law’ (2012) 1(1)
Transnational Environmental Law, pp. 1-11 (with Thijs Etty)
'Governing Climate Change. Towards a New Paradigm for Risk
Regulation' (2011) 74:6 The Modern Law Review, pp. 817-844
This article argues that the ascent
of climate change on the EU regulatory agenda
signals a new era of risk regulation and calls for
the establishment of a new paradigm for risk
regulation. Climate change is altering the EU's
conception of environmental risks and its design of
regulatory responses. In contrast to conventional
risk regulation, climate change regulation must
prioritise the risks of business-as-usual over the
risks of change, must target systemic change instead
of stability, and must favour the virtues of
integration and orchestration over those of
individualisation and compartmentalisation. There is
an important role for risk regulation scholarship to
analyse this shift and its consequences for
regulation, such as the relocation of legitimacy
needs and the emergence of new risks of regulatory
failure. Such an enterprise would both reinvigorate
risk regulation scholarship and offer a vital
contribution to the European Union as it tackles the
momentous challenge of climate change governance.
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'Aarhus to Helsinki: Participation in Environmental
Decision-Making on Chemicals' Chapter 7 of
Interactions and Tensions between Conventional International
Law and EU Environmental Law (Europa : 2011)
'Regulating Chemical Risk: REACH in a Global Governance
Perspective' in Regulating Chemical Risks, European and Global Challenges,
Eriksson, Johan; Gilek, Michael; Rudén, Christina (eds.) (Springer : 2010)
This important contribution to the
scientific understanding of chemical risk regulation
offers a coherent, comprehensive and updated
multidisciplinary analysis, written by leading experts
in toxicology, ecotoxicology, risk analysis, media and
communication, law, and political science.
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'Levelling Down, Levelling Up, and Governing Across: Three
Responses to Hybridization in International Law' European Journal of
International Law
2009 20(3):647-674
This article investigates developed countries' financial
and technical assistance commitments under the Stockholm Convention on
Persistent Organic Pollutants. It shows that their organization is secured
through the establishment of a hybrid implementation network, involving the
cooperation of state and transnational actors, and argues that institutional
hybridization affects the quality and status of treaty norms. The norms defy
a classification into either hard or soft law, but contain elements of both.
Institutional and normative hybridization is at once a productive response
to the emergence of global risks, and a source of new challenges. The
article identifies the diffusion of accountability, the complication of
enforcement, and the dilution of the communicative role of international law
as challenges flowing from hybridization, and develops three responses:
'levelling down', which emphasizes the contractual nature of international
agreements; ‘levelling up’, which strengthens state accountability; and
'governing across', which constitutionalizes the transnational actors in the
implementation network. The advantages and drawbacks of each response are
reviewed, and suggestions for reform developed.
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'Globalizing regulation: reaching beyond the borders of
chemical safety' Journal of Law and Society 2009, 36(1), 110-128.
This article argues that although
globalization can benefit both exporters and importers of
regulation in absolute terms, it may turn the globalization
of regulation into a game with relative winners and losers.
Using the EU REACH Regulation of chemicals as a case study,
it explores the normative, social, economic, and strategic
reasons that push the EU to promote the global adoption of
REACH. Notwithstanding its attractions, rules globalization
may result in a mismatch between global norms and local
priorities, particularly for developing countries. It
reduces regulatory diversity, and amplifies the strengths
but equally the weaknesses of the dominant regulatory
framework. While it can foster international trade through
mutual recognition of regulatory decisions and the
development of transnational regulatory frameworks, it
increases the likelihood of conflict and trade flow
desequilibria. The article calls for further careful
consideration of rules globalization, so that harmonization
does not come at the expense of local interests and values.
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'The EU’s Chemicals Policy: Towards Inclusive Governance?' in
E. Vos, European Risk Governance: Its Science,Its Inclusiveness and Its
Effectiveness (CONNEX book series, Mannheim); first published as 'The EU’s
Chemicals Policy: Towards Inclusive Governance?' (LSE Law Department Working
Paper, March 2008)
'No Data, No Market. The Future of EU Chemicals Control under
the REACH Regulation' Vol. 9 Environmental Law Review, pp. 201-206
“Overleven in het Europees gemeenschapsrecht: het
voorzorgsbeginsel tussen integratie en identiteitsverlies”
(“Surviving in European Community Law: the precautionary principle
between integration and identity loss”) SEW Tijdschrift voor
Europees en Economisch Recht (Issue 9), pp. 306-315 (approx.
8500 w)
'Facing the Consequences of the
Precautionary Principle in European Community Law' Vol. 31
European Law Review (2006, Issue 2), 185-207
This essay gauges the impact of the
precautionary principle on Community decisions. To this
end it reviews, first, judicial challenges of EC
decisions accused of being insufficiently precautionary
(“insufficient precaution” challenges), and, second,
challenges arguing that the scrutinised decision is
overly precautionary (“excessive precaution”
challenges). The analysis indicates that it is
prohibitively difficult for a private party to mount a
successful “insufficient precaution” challenge. The
positive trust-enhancing effect of the precautionary
principle is negligible. The review of “excessive
precaution” challenges illustrates the Courts’ struggle
simultaneously to validate broad discretion in
decision-making and guarantee the substantive quality of
precautionary decisions. The essay posits that current
attempts to reconcile these two objectives create
confusion, and may erode the credibility of
decision-making. To avert this, and to strengthen the
principle’s positive trust-enhancing effect, the
Community must openly acknowledge the institutional
empowerment that the precautionary principle entails,
and devise a strategy to counterbalance it.
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'Guidance Without Constraint: Assessing the Impact of the
Precautionary Principle on the European Community’s Chemicals
Policy' Vol 6. Yearbook of European Environmental Law (2006),
27-60
The Yearbook of European Environmental Law brings together
topical analyses of contemporary European Environmental Law. Leading
European and American academics provide in-depth scholarly articles covering
a wide range of challenging issues. The Yearbook contains an easily
accessible Annual Survey providing legal practitioners, academics, and
policy-makers with detailed and indispensable information on current and
future European environmental law. In addition the Yearbook features
summaries and full texts of preparatory commission documents, green books,
and other discussion papers, as well as a selection of reviews of books.
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'Codificazione e centralizzazione da un punto di vista inglese' in D. De
Carolis, E. Ferrari & A. Police (eds.), L’ambiente e l’attivita
amministrativa
(Milano, Giuffre, 2006)
'Codification and Centralisation of Environmental Law: a UK Perspective'
Rivista Italiana di Diritto Pubblico Comunitario (2005, Issue 5)
'Wie wordt er wijzer van. Enige bedenkingen bij het recht op toegang tot
milieu-informatie' ('Who is any wiser? Pondering the right of access to
environmental information') in Christine Larssen, Dix ans d’access a
l’information en matiere d’environnment en droit international, europeen et
interne. Bilan et Perspectives. Actes du colloque organise par l’Association
Belge du Droit de l’Environnement et l’ULB (Bruxelles, Bruylant, 2003),
17-33
'Trade and the Environment: Proportionality Substituted?', Vol. 13
Journal of Environmental Law (2001, Issue 3), 392-407
'Institutions for Regulating Risk', with Stephen Breyer,
in Richard B. Stewart, Richard L. Revesz & Philippe Sands (eds.),
Environmental Law, the Economy and Sustainable Development (Cambridge
University Press, 2000), 283-352
This book provides a comparative
analysis of environmental regulation in
multi-jurisdictional legal and political systems,
focusing on the United States, the European Union, and
the international community. Each of these systems must
deal with environmental interdependencies that cross
local borders. Some transjurisdictional environmental
problems are global, including stratospheric ozone
depletion, climate change, and the loss of biodiversity.
Other environmental problems, however, are localised in
their effect on health and the environment: for example,
municipal waste disposal, many forms of pollution and
resource development, and drinking water quality. These
varying jurisdictional and environmental circumstances
pose the central question of how responsibility for
addressing different environmental problems should be
allocated among the different levels of decision making
and implementation in a multi-jurisdictional system.
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