1. Legal Pluralism as a Defining Feature of Transnational Environmental Law

Since its very first issue, contributors to Transnational Environmental Law (TEL) have grappled with the proliferation of forms of transnational environmental law and governance ‘beyond the state’.Footnote ¹ Echoing the intellectual influence of the broader literature on transnational law,Footnote ² legal pluralism has been a defining feature of transnational environmental law as a field and an approach.Footnote ³ Articles published in TEL have engaged with a wide array of state and non-state legal institutions and norms,Footnote ⁴ including forms of normativity as diverse as international legal regimes,Footnote ⁵ domestic civil codes,Footnote ⁶ court decisions,Footnote ⁷ legal arrangements for wildlife,Footnote ⁸ Indigenous legal practices and ontologies,Footnote ⁹ private certification standards,Footnote ¹⁰ contracts,Footnote ¹¹ and citizens’ assemblies.Footnote ¹² This scholarship has destabilized traditional conceptions of the nature, locations, and sources of law and problematized the boundaries between levels of governance, public and private spheres of authority, and legal traditions.Footnote ¹³ As we explore in this editorial, legal pluralism remains a common assumption that underlies much of transnational environmental law scholarship, even if the way it is understood and applied varies widely.

2. Legal Pluralism in and through the Courtroom

A common manifestation of legal pluralism in transnational environmental law scholarship involves analyzing legal norms and practices at the intersections of domestic, regional, and international law. Such scholarship reflects a minimalist or weak conception of legal pluralism.Footnote ¹⁴ While it acknowledges the coexistence of multiple legal systems interacting at the global or transnational level, this approach can be easily reconciled with a conception of law that rests on the formal institutions of the sovereign state.Footnote ¹⁵ Two articles in this issue illustrate this approach.

André Nollkaemper’s article ‘Avoid, Align or Contest? An Examination of National Courts’ Postures in International Climate Law Litigation’Footnote ¹⁶ maps how national courts have engaged with arguments relying on international climate law across 148 cases in more than 40 jurisdictions. His core finding is sobering for international lawyers: most courts avoid direct engagement with the legal norms emanating from the multilateral climate regime for reasons that include a lack of direct effect, standing hurdles, or concerns over the separation of powers.Footnote ¹⁷ Yet a significant minority of courts have aligned domestic law with decisions and instruments adopted under the United Nations Framework Convention on Climate Change.Footnote ¹⁸ This typically involves interpretations of domestic climate legislation, human rights standards, or administrative decisions in the light of the Paris Agreement,Footnote ¹⁹ but has also included decisions where international climate law has served as a secondary argument in reaching a conclusion.Footnote ²⁰ Finally, Nollkaemper reports on a small number of ‘contestation’ cases in which courts have had to address conflicts between international climate law and other branches of international law, and notes that such cases are likely to multiply as a result of the fragmentation of international law.Footnote ²¹

Legal pluralism in the courts is often the result of a legal strategy in which litigants mobilize different bodies of law in pursuit of justice. This approach is exemplified in Véronique Boillet and Mélanie Levy’s article ‘A Human Rights Approach to Agrochemical Pollution: Lessons to be Learned from Climate Change Litigation?’,Footnote ²² as it seeks to transpose human rights norms to address the severe risks to health, biodiversity, and ecosystems caused by agrochemical pollution. Drawing on recent climate-related decisions of the European Court of Human Rights (ECtHR), such as KlimaSeniorinnen,Footnote ²³ the authors explain whether and how human rights litigation may be used to hold states accountable for the harm caused by agrochemical pollution. Referring to the Court’s findings concerning the margin of appreciation, the role of scientific assessments, questions of standing and admissibility, and causation in the context of climate change, Boillet and Levy argue that human rights litigation provides a viable legal pathway for tackling the long-term, cumulative risks associated with the use of agrochemicals.Footnote ²⁴

Both articles reinforce the key point that transnational environmental law is about more than the interactions of domestic and international law – it is a multilevel dialogue where international treaties, soft law, constitutional rights, domestic statutory schemes, and regional instruments co-evolve to shape legal arguments and judicial decisions. They also suggest that the multiplication of international regimes and the opportunities they provide for strategic litigation are likely to be key drivers of this form of minimalist legal pluralism in the future.

3. The Legal Pluralism Associated with Transnational New Governance

Another form of legal pluralism that recurs frequently in transnational environmental law scholarship concerns the complex web of public, private, and hybrid legal practices associated with the rise of transnational new governance. This regulatory approach embraces flexible, participatory, and experimental practices for solving problems, involves a range of public and private actors in the development and implementation of rules, and emphasizes iterative processes of learning and coordination across sectors and levels of governance.Footnote ²⁵ Although the concept of new governance may extend to purely private standard-setting, such as voluntary codes of conduct or certification programmes, it can also be practised by state or interstate institutions, as is illustrated by the European Union (EU) approach to corporate regulation.Footnote ²⁶ Two articles in this issue reflect our field’s interest in this type of legal pluralism.

In Clemens Kaupa’s article ‘Can Corporations Fulfil Greenhouse Gas Emissions Reduction Responsibilities by Using Carbon Credits?’,Footnote ²⁷ the analysis of corporate reliance on carbon credits shows legal pluralism at work in the complex field of climate governance. He situates the corporate duty to reduce greenhouse gas (GHG) emissions across diverse legal sources: human rights norms (including the United Nations Guiding Principles on Business and Human RightsFootnote ²⁸) and other influential soft law instruments (such as the Organisation for Economic Co-operation and Development (OECD) Guidelines on Multinational EnterprisesFootnote ²⁹), mandatory corporate sustainability due diligence requirements set by an EU directive,Footnote ³⁰ and tort duties of care (for example, in the Milieudefensie v. Shell case in the NetherlandsFootnote ³¹). Citing empirical studies on the limited mitigation effect of carbon offsets, Kaupa argues that purchasing carbon credits should not enable corporations to meet their due diligence obligations to take effective actions to reduce their GHG emissions.Footnote ³² Kaupa’s article highlights a paradox at the intersections of corporate governance and carbon offsetting in many industrialized countries. While corporations are legally obligated to reduce their carbon emissions, they are also encouraged to use a purported climate solution – carbon credits – that is unlikely to discharge this obligation.

Ida Mae de Waal’s study of the EU Batteries Regulation, in ‘The Legal Transition Towards a More Circular Battery Value Chain: A Critical Analysis of the Batteries Regulation’,Footnote ³³ offers another example of the complexities and tensions that can emerge at the intersections of multiple forms of law and governance, even in the context of a concerted initiative focused on a specific sector. The EU Batteries Regulation is ‘the first comprehensive legal framework to focus on the entire life cycle of a specific product’ adopted by the EU.Footnote ³⁴ Drawing on lessons learned from earlier efforts, the Regulation aims to eliminate barriers and provide incentives to support the transition towards a more circular battery value chain. To this end, the Regulation includes a mix of regulatory strategies, including restrictions on the use of certain substances in batteries, product design requirements, targets for collection and recovery of waste batteries, extended producer responsibility, and labelling mechanisms that provide information on hazardous substances in batteries.Footnote ³⁵ Yet, each pillar of this legal framework interacts with other EU measures relating to the control and regulation of hazardous chemicals, the management and elimination of electric and electronic waste, the design of sustainable products, the circular economy, and the due diligence obligations of corporations. De Waal shows how technical questions, such as collection-rate methodologies or material-recovery targets, reverberate across this mosaic, creating potential risks of regulatory overlap, inconsistencies, and conflict across multiple legal regimes within the EU’s complex architecture.Footnote ³⁶

Read together, these articles reflect a conception of transnational environmental law as a field of law where obligations arise from multiple sources, are mediated by interacting standards and institutions, and involve an array of public and private actors. They also highlight the challenges of coordination and orchestration that emerge as a result of transnational legal pluralism.

4. Environmental Democracy and Justice in the Context of Legal Pluralism

Legal pluralist perspectives are not only concerned with understanding the diverse array of institutions that generate and legitimate law, but they are also interested in the role that human agency can play in the formation and operation of legal systems.Footnote ³⁷ Because of their interest in environmental justice, transnational environmental law scholars have also explored whether and how activists, experts, and civil society leaders can participate in the development, interpretation or implementation of environmental legal norms.Footnote ³⁸ Two articles in this issue of TEL reflect this scholarly interest.

In their article ‘Participation and Protest Across Civic Space: An Environmental Law Story’,Footnote ³⁹ Maria Lee and Chiara Armeni argue that environmental law must protect diverse modes of engagement to sustain democratic legitimacy in environmental decision-making. They conceptualize environmental participation as a continuum ranging from legally protected ‘invited’ participation (consultations organized under a legal framework) to ‘uninvited’ participation (lawful protest) and ‘forbidden’ participation (criminalized protest).Footnote ⁴⁰ Lee and Armeni demonstrate that law both enables and constrains civic participation in environmental governance. While environmental and human rights law create participatory rights, recent legal reforms across Europe simultaneously erode these rights and criminalize protest, shrinking civic space even in liberal democracies.Footnote ⁴¹ By situating protest within the same continuum as formal participation, this article foregrounds the role of non-state actors in environmental governance and recognizes both institutionalized and insurgent forms of participation as integral to environmental democracy.Footnote ⁴²

Dominique Hervé Espejo and Dusanka Inostroza Skaric, in their article ‘Environmental Justice and Enforcement: Guidelines from Three Country Studies’,Footnote ⁴³ argue that the pursuit of environmental justice must extend beyond planning and decision-making to include enforcement as a critical dimension of environmental governance. Through case studies of the United States (US), United Kingdom (UK), and Chile, the article examines whether and how environmental justice is or could be considered in tools and mechanisms developed to enforce environmental regulations and deter and remediate environmental harm.Footnote ⁴⁴ Hervé Espejo and Inostroza Skaric find that while the US approach explicitly integrates environmental justice objectives, those in Chile and the UK do so only implicitly, particularly through remediation and additionality requirements.Footnote ⁴⁵ A key conclusion of their comparative analysis is that the participatory dimensions of environmental justice have received little attention from lawmakers and regulators.Footnote ⁴⁶ This is a missed opportunity for advancing environmental justice and empowering marginalized communities to play a role in the regulatory processes meant to address types of environmental harm that often disproportionately affect them.

Both contributions emphasize the role of individuals and communities as key actors in two important dimensions of transnational environmental law regimes: public participation and enforcement. These twin pillars – voice and remedy – are indispensable to an evolving transnational legal order that aspires to legitimacy and fairness.

5. Decentring the West: Indigenous Worldviews and the Reimagining of Transnational Environmental Law

Maximalist or strong conceptions of legal pluralism propose a shift away from state-centric notions of authority to recognize the diverse ways in which individuals and communities may generate and practise law across distinct legal traditions.Footnote ⁴⁷ It is closely associated with projects to decolonize Western legal systemsFootnote ⁴⁸ and revitalize Indigenous legal orders on their own termsFootnote ⁴⁹ rather than through the colonial lens of ‘recognition’.Footnote ⁵⁰ Likewise, a growing strand of transnational environmental law scholarship has not only challenged the primacy of the state in the study of law, but also fundamental precepts underlying Western legal thinking, traditions, and research methods.Footnote ⁵¹ The contributions by Edirisinghe and Suchet-Pearson and Liljeblad fall within this vein.

In ‘Legal Personhood and Rights of Nature: Bridging Relational Vedda Worldviews and Sri Lankan Law’,Footnote ⁵² Asanke Edirisinghe and Sandie Suchet-Pearson situate their analysis in Sri Lanka, where environmental law reflects colonial legacies and Western legal ontologies. Drawing on interviews with members of Vedda communities and a range of primary and secondary sources, they expose a fundamental ontological divergence between Sri Lankan state law, which treats nature as property, and Vedda cosmology, which embeds humans within a web of reciprocal obligations and conceives of land, water, and non-human beings as kin.Footnote ⁵³ This marginalization of Vedda worldviews in Sri Lankan environmental law and governance is not isolated; it is part of a broader pattern in which the government has denied their legal status as Indigenous peoples, suppressed their legal traditions, and disposed them of their customary lands.Footnote ⁵⁴ Edirisinghe and Suchet-Pearson report that Vedda communities do not recognize the laws of the state as their own and declare that they ‘fully support recognizing Vedda laws within a pluralistic legal framework’.Footnote ⁵⁵ Having deemed this pathway as unrealistic in the current political context in Sri Lanka, Edirisinghe and Suchet-Pearson propose to bridge the gap between state-based law and Indigenous worldviews by recognizing the legal personhood and Rights of Nature.Footnote ⁵⁶ They do so with full knowledge of two important caveats. Firstly, they note that ‘Vedda participants interviewed in this research were unfamiliar with the concepts of legal personhood or RoN [Rights of Nature]’.Footnote ⁵⁷ Secondly, they acknowledge that legal personhood and rights ‘are Western legal constructs’ and that ‘many Indigenous communities find these approaches at odds with their own worldviews and political projects’.Footnote ⁵⁸ The authors nonetheless suggest that the expansion of personhood and rights to include nature in Sri Lanka offers ‘pathways to legally defend the relationships they maintain with their lands and territories, influence law and policy, and revive and protect their stewardship responsibilities’.Footnote ⁵⁹ The authors contend that such reforms could help to decolonize Sri Lankan environmental governance, empower Indigenous stewardship, and institutionalize relational ethics.Footnote ⁶⁰

Finally, in his article ‘Clarifying Indigenous Approaches to Ecocide’,Footnote ⁶¹ Jonathan Liljeblad extends this pluralist critique to the international plane, focusing on efforts to codify ecocide as an international crime. He argues that prevailing definitions of this crime are rooted in anthropocentric types of harm or ecocentric abstractions and thus fail to reflect Indigenous ontologies, epistemologies, methodologies, norms and values concerning nature.Footnote ⁶² Liljeblad distinguishes between ‘thin’ and ‘thick’ approaches for aligning ecocide lawmaking with Indigenous agency, norms, and values.Footnote ⁶³ Thin approaches seek to advance the status and priorities of Indigenous peoples through strategic engagement with the processes and institutions of the International Criminal Court (ICC) and incremental reforms of how crimes are currently defined. A prominent example of this sort of strategy is the dossier submitted by the Articulation of Indigenous Peoples from Brazil to the ICC Prosecutor alleging crimes committed by the Bolsonaro regime.Footnote ⁶⁴ Thick approaches call for reconfiguring the foundations of international criminal law, including by questioning Western notions of criminal justice, and bypassing the existing system entirely, to promote alternative Indigenous forms of justice.Footnote ⁶⁵ Because of the emphasis placed in many Indigenous legal traditions on restorative rather than retributive justice,Footnote ⁶⁶ international criminal law may not always represent the best approach for securing justice for Indigenous victims of international crimes and the communities to which they belong.Footnote ⁶⁷

These two articles speak to a key strategic and ethical dilemma that many Indigenous communities face when deciding whether and how to engage with settler legal systems.Footnote ⁶⁸ While transformative projects to decolonize law may enhance the self-determination of Indigenous Peoples and the resurgence of their legal traditions, they are unlikely to deliver short-term legal gains that enable them to defend themselves from environmental harm.Footnote ⁶⁹ Meanwhile, incremental strategies that engage with prevailing legal norms and systems may provide more immediate benefits in terms of safeguarding Indigenous rights and lands, but may undermine the broader project of decentring the state to embrace plural forms of legality, including those practised by Indigenous peoples and that rely on their distinct ontologies and epistemologies.Footnote ⁷⁰