Table of Contents Alert: Transnational Environmental Law 1 (1)

See below for some of the articles that was published in the inaugural issue of  Transnational Environmental Law 1 (1)

Confronting the Challenge of Energy Governance
Neil Gunningham
Abstract: There is a compelling argument for developing a low carbon emissions trajectory to mitigate climate change and for doing so urgently. What is needed is a transformation of the energy sector and an ‘energy revolution’. Such a revolution can only be achieved through effective energy governance nationally, regionally, and globally. But frequently such governance is constrained by the tensions between energy security, climate change mitigation and energy poverty. At national level, there is a chasm between what is needed and what governments do ‘on the ground’, while regionally and globally, collective action challenges have often presented insurmountable obstacles. The article examines what forms of energy law, regulation and governance are most needed to overcome these challenges and whether answers are most likely to be found in hierarchy, markets, or networks.

Innovativeness and Paralysis in International Climate Policy
Charlotte Streck
Abstract: This article describes the challenges of using the constrained tools of international law to negotiate a sustainable framework to address climate change. It sets out to show how the particularities of the problem have led to creative and innovative solutions expanding the borders of international law. To this end, the article discusses carbon market mechanisms, the compliance regime of the Kyoto Protocol, and the emerging framework to create incentives to reduce land-based emissions in developing countries. These examples illustrate that the recognition of the role of sub-national and private entities in mitigating climate change has had significant impact on the rules of the climate regime. But the article also asserts that the un process, while recognizing the role of private actors, is still inadequately equipped to involve non-state actors in a meaningful way. The climate regime therefore challenges the traditional thinking about interstate relationships. No longer solely a matter for international environmental law, contemporary environmental governance has become a global affair, which makes the lens of transnational law a useful tool to think about these issues in practice in a more intellectually fruitful and relevant way. This article thereby provides a snapshot of the type of issues and discussion that readers of this journal can look forward to in the years to come.

The Coming Water Crisis: A Common Concern of Humankind
Edith Brown Weiss
Abstract: This essay argues that fresh water, its availability and use, should now be recognized as ‘a common concern of humankind’, much as climate change was recognized as a ‘common concern of humankind’ in the 1992 United Nations Framework Convention on Climate Change, and conservation of biodiversity was recognized as a ‘common concern of humankind’ in the 1992 Convention on Biological Diversity. This would respond to the many linkages between what happens in one area with the demand for and the supply of fresh water in other areas. It would take into account the scientific characteristics of the hydrological cycle, address the growing commodification of water in the form of transboundary water markets and virtual water transfers through food production and trade, and respect the efforts to identify a human right to water.

Science, Values and People: The Three Factors that Will Define the Next Generation of International Conservation Agreements
Alexander Gillespie
Abstract: This paper is concerned with three emerging issues that define the way in which international conservation law moves forward in the coming decades. The three issues are those related to the use of science to frame regimes; the use of philosophy to examine the values of what is trying to be achieved; and the use of politics to ensure that local communities are linked to conservation efforts. Consideration of each of these three areas is relatively recent, none of them having being at the forefront of conservation considerations of international importance in the past. In the future, this is likely to change.

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‘SA to strengthen environmental, climate change policies’

Engineering News, 25 October 2011 

South Africa, which is hosting the next round of global climate change negotiations in Durban later this year, would work to strengthen environmental and climate change policies over the next three years and would aim to secure global and private sector funding for green interventions.

In the Medium-Term Budget Policy Statement (MTBPS), the National Treasury also stated that it was considering environmental monitoring linked to appropriate fiscal instruments and capacity support interventions.

The R25-billion competitiveness support package over the next six years to boost industrial development, would also build on several broader programmes, including the country’s transition to a green economy.

Finance Minister Pravin Gordhan said the alignment of trade, investment and energy policies would support the transition, including private sector participation in the country’s renewable energy programme.

“Improving environmental management and addressing climate change resilience are key policy objectives,” the MTBPS stated.

The country increased its spend on environmental protection at an average yearly rate of 11% from R38.5-billion in 2008/9 to R52.4-billion in 2011/12.

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New Report – ‘Approaching the ‘Why, What and How’ of Low-Carbon Planning in South Africa’

Summary: This document presents the high-level findings from a conceptual exploratory study that considered the design of a Low Carbon Action Plan (LCAP) for South Africa, setting out the thinking of how to go about low-carbon economy planning and implementation. While developed specifically for the South African context, the approach explores a methodology which could be adopted in whole or in part by low-carbon economy planners throughout the developing world. As well as outlining the core elements of the LCAP, this document highlights some of the challenges and opportunities this process presents.

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New Article – ‘Enforcing Environmental Regulation’

Abstract: For environmental legislation to ‘work’ it must not only be well designed but also efficiently and effectively enforced. Strategies must be developed as to how inspectors should go about the task of intervening in the affairs of regulated organisations to ensure compliance and enforcement—a question regarding which there is little consensus. This article examines this question from a number of angles: descriptive; analytical; and normative. It explores the practices of a representative sample of environmental regulators, identifying a number of distinctive intervention strategies (which are only limitedly shaped by existing theoretical models). It goes on to examine the strengths and weaknesses of each strategy and to consider how best to balance the sometimes competing criteria of effectiveness, efficiency and legitimacy. Finally, it considers how resource allocation and intervention strategies can best be integrated, whether there is a single ‘best practice’ strategy, and if not, what sorts of hybrids might be developed.

Full Citation:  Gunningham, N. (2011). Enforcing environmental regulation, Journal of Environmental Law, 23 (2): 169-201 (Available with subscription from 


‘Adapting to climate change through local municipal planning: barriers and challenges’

Abstract: Municipal planning represents a key avenue for local adaptation, but is subject to recognised constraints. To date, these constraints have focused on simplistic factors such as limited resources and lack of information. In this paper we argue that this focus has obscured a wider set of constraints which need to be acknowledged and addressed if adaptation is likely to advance through municipal planning. Although these recognised constraints are relevant, we argue that what underpins these issues are more fundamental challenges affecting local, placed-based planning by drawing on the related field of community-based environmental planning (CBEP). In considering a wider set of constraints to practical attempts towards adaptation, the paper considers planning based on a case study of three municipalities in Sydney, Australia in 2008. The results demonstrate that climate adaptation was widely accepted as an important issue for planning conducted by local governments. However, it was yet to be embedded in planning practice which retained a strong mitigation bias in relation to climate change. In considering the case study, we draw attention to factors thus far under-acknowledged in the climate adaptation literature. These include leadership, institutional context and competing planning agendas. These factors can serve as constraints or enabling mechanisms for achieving climate adaptation depending upon how they are exploited in any given situation. The paper concludes that, through addressing these issues, local, place-based planning can play a greater role in achieving climate adaptation.

Full Citation: Measham, T.G., Preston, B.L., Smith, T.F., Brooke, C., Goddard, R., Withycombe, G., Morrison, C. (2011). Adapting to climate change through local municipal planning: barriers and challenges, Mitigation and Adaptation Strategies for Global Change, 1-21, DOI 10.1007/s11027-011-9301-2.

New Report – ‘Cities and Climate Change: Global Report on Human Settlements 2011′

Planners and others continue to explore how the world’s cities will be
affected by climate change in the coming decades, and this 62-page report
released by the United Nation’s Human Settlement Programme takes a close
look at the subject. This abridged version of the full report argues, “local
action is indispensable for the realization of national climate change
commitments agreed through international negotiations.” Visitors will find
that the report is divided into six chapters, including “Urbanization and
the Challenge of Climate Changes” and “The Impacts of Climate Change on
Urban Areas”. The report draws on a wide range of scholarly data taken from
UN reports, along with others working in the field of climate change and
environmental science.

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‘Climate change Green Paper under the spotlight’

Engineering News, 11 February 2011

The 38-page National Climate Change Green Paper was released just before most of South Africa’s negotiating team went to Cancun.

A raft of consultative workshops on the Green Paper are to be held around the country in the next month or so. The interest in the Green Paper is overwhelming. The proposals that will be put forward will have implications for everybody.

There was something of a delay in the release of the paper following the issuing of the National Climate Change Response Paper in early 2010. The original intention was to have the White Paper finalised and the legislation taking effect by the end of 2011. This is now unlikely. There is some urgency with respect to having something solid by the seventeeth Conference of the Parties of the United Nations Convention on Climate Change (COP17).

The most we can expect is a White Paper by the time the COP17 is held in Durban at the end of this year.

The Green Paper says a lot and then says nothing. This is not being harsh, but a Green Paper should at least be more than a discussion paper. It should define the policy options for action, the feasibility of these and the timeline for the implementation of the various options. These would be for both mitigation and adaptation.

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