A Radical Shift for the Future of Environmental Law: the Potential and Risks of the Use of Technology for the Benefit of the Environment

The rate of environmental decline over the past few decades has been alarming, reflecting the relative ineffectiveness of the expanding body of environmental law that has been enacted since the early 1970s. Scholars have analysed the causes for the sub-optimal performance of environmental regulation, and put forward a plethora of explanations. Our scientific understanding of how ecologies interrelate and what critical thresholds exist remains sketchy at best, which hinders the articulation of appropriate regulatory goals. It is also hard to channel the behaviour of citizens for as long as the costs of environmental harm are borne by future generations that are not represented in political and legal processes. Last but not least, disequilibrium exists between those having an interest in pursuing a certain (industrial) activity and the environment, which cannot fend for itself, yet is not easily represented in the law. The search is on for new regulatory approaches that radically improve on the environmental performance of the current regulatory regime. As environmental threats, such as climate change, are becoming ever more acute and serious, and public funds simultaneously increasingly scarce, technology is becoming part of the standard toolbox of environmental regulators. This being so, we can no longer postpone thinking about the implications of the use of technology for environmental law. First and foremost, this is because changes in one mode of regulation will reverberate across the regulatory landscape. Norms that would be challenged by the employment of technologies are in particular those pertaining to access to environmental information, public participation in environmental decision-making and access to justice in environmental cases. These norms not so much regard the effectiveness of environmental regulation, but seek to safeguard its legitimacy. Legitimacy, in this context, implies that both the goals pursued by regulation are proper (or, put more specifically, that regulation responds to major environmental needs) and that regulators pursue those goals in the right way (respecting fundamental rights, proportionality, taking account of principles of environmental law, such as polluter pays, precaution etc.). In general terms, the paper hence revolves around questions concerning (a) the environmental potential of the employment of technology and (b) the compatibility of the use of technology with the existing regulatory landscape. We will look into these issues by focussing on one area where technological innovation may profoundly impact on environmental law: geo-engineering. Geo-engineering is defined as deliberate large-scale manipulation of the planetary environment to counteract anthropogenic climate change. (International) legislation explicitly aimed at regulating the various forms of geo-engineering is still absent. We will analyse how international law should react on the emergence of these innovative technologies. A twofold response seems in order. First, the development and deployment of these technologies needs to be regulated in such a way as to avoid unwanted negative impacts on the environment. Second, legislation may be required to embed geo-engineering within the existing regulation. We will show the various ways in which this can be done. This case, thus, offers an interesting opportunity to explore both the potential and risks that arise when using new technologies to combat environmental degradation

Het arrest Briels:Begrippen mitigatie en compensatie Habitatrichtlijn nader verklaard

Het Hof van Justitie heeft zich in de zaak Briels e.a.gebogen over een prejudiciële vraag in het kader van eenprocedure aangaande het tracébesluit Rijksweg A2.Deze wegverbreding heeft negatieve gevolgen voor hetbestaande beschermde areaal blauwgraslanden. Het tracébesluitvoorziet echter in een mitigatieplan, omvattendede aanleg van een groter areaal blauwgraslanden vanhogere kwaliteit dan het bestaande. De kern van hetarrest gaat over de vraag of de in het tracébesluit voorgesteldebeschermingsmaatregelen de schadelijke gevolgenmitigeren of dat deze maatregelen moeten worden aangemerktals compenserende maatregelen als bedoeld inartikel 6 lid 4 van de Habitatrichtlijn.In deze bijdrage worden de antwoorden van het Hof vanJustitie besproken in het licht van eerdere rechtspraakover de beschermingsverplichtingen die artikel 6 lid 3 en4 van de Habitatrichtlijn met zich meebrengen. In hetbijzonder wordt daarbij ingegaan op de rol die het voorzorgbeginselvervult bij de interpretatie van dit artikelen de betekenis van het begrip compensatie. De bijdragesluit af met een korte bespreking van de opmerkelijkevervolgstappen die Nederland als reactie op het arrestheeft genomen

When is it acceptable to kill a strictly protected carnivore:Exploring the legal constraints on wildlife management within Europe's Bern Convention

As wolf populations expand across Europe, many countries face challenges in finding ways to address the concerns of some elements among the rural stakeholders who are being asked to share their landscapes with wolves for the first time in several generations. In these recovery landscapes, wolves are associated with a wide range of conflicts that include economic, psychological, perceptional, social, cultural and political dimensions. A recurring demand concerns the desire to introduce the use of carefully regulated lethal control of wolves, through either culling by state employees or hunting conducted by rural hunters. Introducing such measures can be very controversial, and many critics challenge their legality under the international wildlife conservation instruments that have nurtured wolf recovery. We evaluate this issue for the case of wolves in Norway, which are strictly protected under the Bern Convention. Drawing on the latest results of social science research, we present the multiple lines of argumentation that are often used to justify killing wolves and relate these to the criteria for exceptions that exist under the Bern Convention. We conclude that while the Convention provides apparent scope for allowing the killing of wolves as a means to address conflicts, this must be clearly justified and proportional to the conservation status of wolves so as to not endanger their recovery

Constitutionalizing in the Anthropocene

The Anthropocene thesis, in its rejection of both the modernist separation between ‘humans’ and ‘nonhumans’ as well as in its treatment of ‘humans’ as a singular global geophysical force, presents fundamental challenges to constitutional theory and practice. First, in terms of conceptual and foundational transformations, the Anthropocene provokes the reconceptualization of legal relations as never being limited to human concerns, but as always and already part of more-than-human collectives. These legal relations are organized by the coagency of humans and nonhumans, in recognition of shared vulnerabilities and in relations premised on care. This reconceptualization demands a new understanding of representational practices that could constitutionalize more-than-human relations as political and legal collectives. Second, emergent technologies such as genetic and climate engineering introduce fundamental questions about regulatory modalities available in the Anthropocene, and the role that law plays in this regard. Such technologies have given rise to the possibility of ‘ruling by design’, by technologically mediating ‘natural’ forces or Earth system processes to achieve pre-established regulatory goals. This possibility raises critical concerns about the remaining role for law in legitimising and enabling such developments. Finally, the temporal dimensions of the Anthropocene thesis cast a critical light on law’s potential for driving radical transformations in (un)governance. In imagining future legal architectures capable of manifesting more-than-human constitutionalism, it is necessary to excavate the historical role that foundational legal principles and institutions – such as sovereignty and personhood – have had in facilitating exploitative relations between and beyond humans

International Wildlife Law : Understanding and Enhancing Its Role in Conservation

We gratefully acknowledge valuable input by Kees Bastmeijer, Sanja Bogojevic, Jennifer Dubrulle, and Han Somsen.Peer reviewedPublisher PD

Legal assessment explaining why COPA*COGECA's objections against the Nature Restoration Act proposal are misleading

In their letter of 26 June 2023 Copa*Cogeca asked the members of the European Parliament’s Committee on Environment to reject the Nature Restoration Law proposal. They based their arguments for this rejection on what they considered as ‘red line’ issues, which makes the law proposal unacceptable to them.As Legal Working Group (LWG) from SERE , we analysed these ‘red line’ issues and we concluded that their red line objections against the Nature Restoration Law proposal cannot withstand legal scrutiny. Many of their concerns are already present in the Commission proposal and are further addressed in the Swedish presidency compromise proposal. Further weakening of the Nature Restoration Law is against existing EU legislation

Legal assessment explaining why COPA*COGECA's objections against the Nature Restoration Act proposal are misleading

In their letter of 26 June 2023 Copa*Cogeca asked the members of the European Parliament’s Committee on Environment to reject the Nature Restoration Law proposal. They based their arguments for this rejection on what they considered as ‘red line’ issues, which makes the law proposal unacceptable to them.As Legal Working Group (LWG) from SERE , we analysed these ‘red line’ issues and we concluded that their red line objections against the Nature Restoration Law proposal cannot withstand legal scrutiny. Many of their concerns are already present in the Commission proposal and are further addressed in the Swedish presidency compromise proposal. Further weakening of the Nature Restoration Law is against existing EU legislation

Legal assessment of the Proposal for an EU Nature Restoration Law:Report by the Legal Working Group of the Society for Ecological Restoration Europe

This assessment is based on the Commission proposal for a Nature Restoration Law (hereafter referred to as NRL) from 22 June 2022.2 The Legal Working Group is aware that the proposal is currently being discussed by the Council and Parliament. It is therefore not an article-by-article assessment, but a more general assessment of several legal aspects of the law we consider to be particularly important. Our choice of the discussed aspects was based on ongoing political discussions on the law (e.g. in the EU parliament and Council). The note gives legal arguments why certain articles should remain in the law or should be amended or added to the law. Legal arguments include legal certainty for stakeholders, coherence with other EU legislation, legitimate expectations, accepted legal principles, etc. Where relevant, we include concrete suggestions for amending and improving the law proposal.<br/