28 July 2021
Lessons from the French Citizens’ Climate Convention
On July 6, the French Prime Minister announced that the government was abandoning the bill to enshrine in the Constitution the preservation of the environment. He invoked the Senate's inertia to justify renouncing the bill, which needed to be adopted in the same terms by the two houses of parliament. The climate referendum that had been announced by the President of the Republic in December 2020 was thus abandoned. The decision was not a surprise, as many doubted the political feasibility or the actual willingness to implement it. Continue reading >>
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07 July 2021
The New EU Climate Law
On 30 June 2021, the European Parliament and the Council signed the EU Climate Law. The Law has drawn a lot of attention, stirred not least because of its head-line grabbing name. Was it merely meant to be a symbolic law to enshrine the EU’s climate objectives into law and celebrate the EU Green Deal? Or was it meant to be a new governance framework that changes the way decisions are taken on EU and Member State level? Continue reading >>
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04 July 2021
The Grande Synthe Saga Continues
France’s highest administrative court ruled that the French government had failed to take sufficient action to mitigate climate change and ordered it to take additional measures to redress that failure. The Grande Synthe II decision of 1 July 2021 follows the findings by the Conseil d’État in a previous decision that France’s greenhouse gas emissions reduction targets constitute legal obligations that are enforceable against the state. However, how, and when to redress France’s failure have been, to a broad extent, left to the discretion of the government. This all but ensures the Grande Synthe saga to continue. Continue reading >>
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15 June 2021
The Courts Strike Back
The Shell case, decided by the Hague District Court on 26 May 2021, is part of a growing body of climate cases. What the Shell case does is that it liberates the political-decision maker from the suffocating grip of investor state dispute settlement mechanisms, in particular the mechanism under the Energy Charter Treaty. Continue reading >>15 June 2021
The Power of Open Norms
In a judgement of 26 May, the District Court of the Hague found that Royal Dutch Shell has an “individual responsibility” to limit its carbon emissions by at least 45 percent by 2030. Notable about the ruling is the unwritten standard of care functioning as an open norm, facilitating the accountability of private power. The openness of legal categories not only entails a potential to drive forward social change, but it also implicitly highlights the political role and nature of private law. Continue reading >>28 May 2021
Shell’s Responsibility for Climate Change
On 26 May 2021, the District Court of the Hague rendered a judgment in the case Milieudefensie v Royal Dutch Shell that can rightly be called revolutionary. This is the first judgment of its kind in which a multinational corporation is held responsible, in part based on international law, for its contribution to climate change. Continue reading >>
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30 April 2021
Ok, Boomer
On control loops, climate change and the Federal Constitutional Court Continue reading >>
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30 April 2021
Judges for Future
The judgment of 29 April 2021 quashing parts of the Climate Protection Act (CPA) has made history. Not only because the First Senate of the BVerfG put an end to deferring the reduction of greenhouse gasses to the future, or at least to the next government. But because this turn to the future came in the form of a turn to international law and institutions. It is precisely by relying on international law that the court overcomes the counter-majoritarian difficulty commonly tantalizing climate litigation and human rights law generally. The most astonishing fact is, however, that the court entirely avoids the tragic choice between supposedly undemocratic international commitments and the democratic legislature. I argue that it does so by approaching constitutional law in a decidedly postcolonial perspective. Continue reading >>29 April 2021
The Constitution Speaks in the Future Tense
Who ought to decide on climate issues? Now, the Constitutional Court has decided. It held that the provisions of the Federal Climate Protection Act are “incompatible with fundamental rights insofar as they lack sufficient specifications for further emission reductions from 2031 onwards”. This decision is extraordinary in many ways: in its interpretation of the constitutional obligation to protect the environment (art. 20a of the Basic Law) as much as in its commitment to international cooperation and international law in climate issues. From this decision on, the German constitution will speak in the future tense. Continue reading >>16 November 2020
Greening Banks in the Face of Uncertainty
To this day, banks continue to plough money into carbon-intensive sectors of the economy while making inadequate provisions for potential losses. The European Central Bank’s 2020 draft Guide on climate-related and environmental risks is a major step in supervisory efforts to address this problem, which so far has escaped critical scrutiny. It sets out how the ECB will use its supervisory powers to get banks to properly monitor, disclose and price risk. As we argue, its current approach is unlikely to work because it asks banks to quantify risks that often resist simple quantification. Instead, the ECB should provide banks with more targeted guidance. That will make banking supervision more political than it is today. Continue reading >>
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