PUBLIC LAW AND THE ENVIRONMENTAL CRISIS I
Panel formed with individual proposals.
Mitigating and adapting to the Climate Crisis will require decisions and actions regarding coordination and distribution. These challenges are the very essence of constitutional law and theory. Yet the Climate Crisis has remained peripheral to comparative constitutional law (CCL). Part One assesses emerging approaches to the Climate Crisis in CCL. These approaches are dominated by rights-based frameworks, especially the “right to a healthy environment“. Part Two critiques this focus on rights and courts, drawing on skepticism of the distributional impacts of rights, as well as more recent empirical critiques. While rights ought not be dismissed, they are not a comprehensive response to the Climate Crisis. Part Three concludes with suggestions for CCL's future engagement with the Climate Crisis. Responses ought not be hemmed in by an exclusively rights-based approach. Rather, the full range of CCL's analytical tools must be applied - a comprehensive research agenda is needed.
The article focuses on an emerging regulatory tactic applied by governments around the world to promote environmental protection, termed here ‘regulatory eco-shaming.‘ Regulatory eco-shaming refers to intentional publications made by administrative agencies regarding companies‘ environmental misbehavior, designed to convey a negative message to the public to induce companies to comply with regulatory norms. For example, The Irish Environmental Protection Agency lists the top non-compliant Irish companies on its website. Social science scholars have explored the theoretical idea and practical framework of shaming companies by government regulators for poor environmental practices. Yet research into the legal implications of regulatory eco-shaming remain under-developed. This article suggests a legal theory for regulatory eco-shaming that balances effectiveness and fairness to ensure reasonableness and proportionality, aiming to guide administrative regulators, legislators and judges.
A number of climate change cases against States have meanwhile been decided by constitutional or supreme courts, the most recent one being the German Federal Constitutional Court (FCC) order of 29/4/2021. Traditionally, in environmental protection cases, constitutional courts tend to afford parliaments and governments a wide margin of discretion in how to fulfil protection duties arsing from environmental clauses or human rights such as life and health or property, only ruling out manifestly unsuitable protection strategies in rare cases. However, in recent climate cases, this relation is being readjusted. Based upon authority of scientific insights, courts increasingly declare legislative acts or government plans unconstitutional due to their insufficient climate efforts. The paper will compare and analyse the doctrinal impact of scientific insights on regulatory discretion in recent climate change case law such as by the FCC.
What level of greenhouse gas emissions reduction is an individual state required to achieve for it to live up to its legal obligations? This question is looming over increasingly more courtrooms around the world. A critical sub-question in this context concerns the temperature pathway that is to be pursued and at what likelihood level. While this is a paradigm question of equity, scientific disciplines such as climate econometrics are the law‘s key ally in gaining information about the assumptions, selection choices and the robustness of anti-bias measures in relevant pathway models. Of prime importance in this context are recent studies, inter alia, by the Potsdam Institute for Climate Impact Research which have revised Nordhaus‘ famous DICE Model and arrived at a significantly lower economically optimal warming outcome. This paper investigates how these findings align with the best available science principle and the equity principle enshrined in the Paris Agreement.