Erasmus Law Review

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Issue 3, 2022 Expand all abstracts

Access_open Using the Law to Save the Planet: Legal Options to Address Climate Change and Ecological Destruction

Keywords climate change, sustainability, ecocide, environmental justice, human rights
Authors Frank Weerman, Alessandra Arcuri and Lieselot Bisschop
AbstractAuthor's information

    Climate change and ecological destruction are among the most pressing issues of our time. In this special issue, academics from various legal and empirical disciplines contribute to providing an answer to whether, when and how different fields of law can be used as tools to enhance sustainability and to address climate change and ecological damage. These include (international) criminal law, liability and tort law, European law and regulations, competition law, corporate law, private law and tax law. These contributions were initially presented and discussed at a seminar held at the Erasmus University Rotterdam in May 2022. This editorial introduces the subject, discusses recent international developments and legal achievements to address the current ecological crisis, and describes how the law is increasingly mobilised from the ground up, by non-government organisations and individual legal professionals. It then progresses by summarising the keynote lecture of the seminar, given by the United Nations Special Rapporteur on Toxics and Human Rights. After this, all contributions to this special issue are shortly introduced and summarised.

Frank Weerman
Frank Weerman is Endowed Professor Youth Criminology at the Erasmus School of Law and senior researcher at the NSCR (Netherlands Institute for the Study of Crime and Law Enforcement).

Alessandra Arcuri
Alessandra Arcuri is Professor International Economic Law at Erasmus School of Law and Erasmus Initiative Dynamics of Inclusive Prosperity, Erasmus University Rotterdam.

Lieselot Bisschop
Lieselot Bisschop is Professor Public and Private Interests, Department of Criminology and Erasmus Initiative on Dynamics of Inclusive Prosperity, Erasmus School of Law, Erasmus University Rotterdam.

Access_open Ecocide, Ecocentrism and Social Obligation

Keywords climate, justice, duty of care, ecocentrism, ecocide, social obligation
Authors Frances Medlock and Rob White
AbstractAuthor's information

    The cataclysmic consequences of climate change and biodiversity loss are revealed in the climate disruptions and escalating extinction of species around the globe. The causes of global warming are directly associated with carbon emissions, the result of the fossil fuel industry and deforestation. Species extinction stems from unfettered resource extraction and the contamination and modification of Nature linked to the growth imperatives of global capitalism. These are crimes of ecocide, crimes that involve foreknowledge, government-provided legitimacy and unprecedented harms to humans, ecosystems and non-human environmental entities such as rivers, mountains, trees, birds and koalas. This article synthesises ideas about ecocentrism, rights of Nature and ecocide within a general framework of criminal law (e.g. prohibition via criminalisation) and social obligation (e.g. prescription via a general environmental duty of care). How best to bring carbon criminals and environmental vandals to justice is the crucial question of our age. As with crimes of the powerful generally, there are profound difficulties in dealing with corporate criminality and state-corporate crime. And yet climate justice demands nothing less than transformative change in circumstance. An ecology-based general duty of care provides a framework whereby social obligation is entrenched in a manner that simultaneously reinforces the criminality of ecocide.

Frances Medlock
Frances Medlock works at the Environmental Defenders Office (the largest environmental legal centre in the Australia-Pacific region), Melbourne, Australia.

Rob White
Robert White is Emeritus Distinguished Professor of Social Sciences at the University of Tasmania College of Arts Law and Education, Australia.

Access_open Valuing Environmental Damages: Fundamental Issues and Methods

Keywords environmental damage compensation, valuation, efficiency, deterrence, ecosystem services
Authors Francesca Leucci
AbstractAuthor's information

    Ecological destruction is one of the greatest challenges of our times. When it is human-based and directly caused by risky activities, liability can play a role in addition to all other regulatory and market-based tools. From a legal perspective, liability primarily aims for victim compensation, whereas, from an economic perspective, its main goal is deterrence. This can be achieved by inducing potential polluters to invest in care (ex ante) in order to minimise expected losses (ex post). Yet, several issues might undermine the possibility to achieve either compensation or deterrence. The aim of this article is to examine how different methods of damage assessment in litigation can enhance or undermine the goal of environmental liability from an economic perspective. More precisely, the overarching research question is whether the available methods of damage assessment are likely to pursue deterrence in an efficient manner. The article is thus structured in the following way. First, the theory of tort law and economics is reviewed to explain how damages should be theoretically assessed to achieve deterrence. Secondly, drawing on the scholarship of environmental economics, advantages, drawbacks and practical use of traditional methods of environmental damage assessment are illustrated. Lastly, conclusions will be drawn based on the comparison of these methodologies in view of providing judges with a cost-effective and ‘on average’ accurate valuation technique, taking also into account the recent ecosystem service approach to damage assessment.

Francesca Leucci
Francesca Leucci is a PhD candidate at the Department of Economics at the Bologna University, Italy, at the Erasmus School of Law at the Erasmus University Rotterdam, the Netherlands, and at the Institute of Law and Economics at the Hamburg University, Germany (European Doctorate in Law and Economics).

Access_open Towards Corporate Obligations for Freshwater?

The European Commission’s Proposal for a Corporate Sustainability Due Diligence Directive and Freshwater Issues

Keywords freshwater, corporate responsibility, due diligence, human rights, environment
Authors Candice Foot
AbstractAuthor's information

    Companies exert substantial pressures on freshwater. They may exacerbate depletion and can be a major source of pollution, adversely impacting human rights and the environment. Recent years have seen the emergence of regulatory instruments that aim to address adverse impacts by corporate activities on people and the planet. These have culminated in the European Commission’s 2022 Proposal for a Corporate Sustainability Due Diligence Directive, which seeks to introduce an obligation for large EU companies to conduct human rights and environmental due diligence. Despite companies’ adverse impacts on freshwater, the draft Directive does not explicitly focus on this. Nevertheless, its material scope does contain human rights and environmental standards from which its protection can potentially be extrapolated. In light of this potential, this article answers the question: to what extent does the draft Corporate Sustainability Due Diligence Directive encompass freshwater issues, and how can its role in this respect be improved? It finds that the draft Directive encompasses freshwater protection from the perspective of both human rights and environment but only to a limited extent. It is limited from a human rights perspective due to the reformulation of the human right to water, and from an environmental perspective due to the acritical transposition of international environmental obligations. Given these limitations, the article concludes with some recommendations on how freshwater issues can be more comprehensively included within the draft Directive.

Candice Foot
Candice Foot is a PhD Candidate at the Erasmus Graduate School of Law of the Erasmus University Rotterdam, the Netherlands.

Access_open EU Competition Law and Sustainability

The Need for an Approach Focused on the Objectives of Sustainability Agreements

Keywords EU competition law, sustainability agreements, efficiency gains, sustainability objectives, qualitative assessment
Authors María Campo Comba
AbstractAuthor's information

    EU competition law potentially has a role to play in the pursuit of sustainability goals and the fight against climate change. The need to interpret the EU competition law provisions in a manner consistent with the sustainability objectives that the EU is committed to – the sustainable development goals (SDGs), and the EU Green Deal and derived policies – is emphasised in this article. While agreements between competitors are generally prohibited by Article 101 TFEU, cooperation agreements among market actors pursuing sustainability objectives (sustainability agreements) might in certain situations fall under the cartel exception of Article 101(3) TFEU. In recent years, there have been numerous calls to clarify conditions under which sustainability agreements can be allowed under EU competition law, especially under Article 101(3) TFEU, and there is a heated debate among academics, national competition authorities (NCAs) and the European Commission. After questioning whether the objectives and measures of the agreements are being properly assessed with the current trends (for example, with the willingness-to-pay method), this article will add to the debate another possibility involving a broad interpretation of Article 101(3) TFEU under which the pursuit of sustainability agreements will be facilitated. Such a possibility will largely depend on the objectives of the agreements themselves and may allow a proper consideration of the objectives of a sustainability agreement for certain cases, by focusing on agreements that pursue pre-established objectives derived from international or national standards or concrete policy objectives that are not previously mandatory for the companies involved.

María Campo Comba
María Campo Comba is a postdoctoral researcher at the Erasmus University Rotterdam, the Netherlands.

Access_open Why Can’t Stakeholder Theory Save the Planet and What Can Corporate Law Do Instead?

Keywords stakeholder theory, corporate environmental sustainability, corporate reform, corporate interest, board of directors
Authors Seniha Irem Akin
AbstractAuthor's information

    In the midst of a multidimensional crisis with economic, social and environmental aspects, corporations have become aware that the reality of our day necessitates that they must play a dual role both for their businesses and for the general public. A primary reason for the change in this perception is the alarming state of the environment and especially the potentially irreversible effects of the climate crisis. As a living and evolving entity within society, companies now take on the public duty to address the mounting concerns about the environment and adopt environmentally sustainable corporate strategies. While doing this, many of them refer to the stakeholder theory. Almost forty years ago, the stakeholder theory was introduced by Freeman as a management concept. Including environmental sustainability within the scope of the stakeholder theory is, therefore, a fairly new approach and raises the following question: Is the stakeholder theory the best tool to integrate environmental sustainability into corporate activity? This article will aim to demonstrate why the answer to this question should be ‘no’. Adding to this, it will then discuss how legal reform in the area of corporate law focusing on the key concepts of corporate interest and directors’ duties should be done instead.

Seniha Irem Akin
Seniha Irem Akin is PhD researcher at the Erasmus University Rotterdam, the Netherlands.

Access_open Collective Ownership and Representation in a Sustainable City

Investigating the Potential of the Community Land Trust and the Zoöp Model

Keywords ownership, representation, community land trust, zoöp model, sustainable city
Authors Laura Burgers and Kinanya Pijl
AbstractAuthor's information

    The question is no longer whether we should move to an environmentally sustainable way of living; rather, the question is – how are we supposed to do that? Katharina Pistor’s seminal book The Code of Capital pointed out that our current form of capitalism is enabled by private law, which selectively ‘codes’ certain assets, endowing them with the capacity to protect and produce private wealth. Law can be changed by the legislature, but legal concepts can equally be imbued with new meanings due to changing ways of seeing in society. Indeed, our investigation into two legal innovations – the Community Land Trust (CLT) and the Zoöp model – demonstrates how little change of the legal hardware of society is required for meaningful legal change in service of sustainability in the city and beyond. Whereas the CLT rethinks the stewardship function of property rights, the Zoöp model transforms corporate governance structures to consider nonhumans’ interests – and both do so without waiting for relevant legal changes to be enacted by legislatures. To evaluate the potential and the limitations of these two legal innovations, we assess the extent to which these innovations align with four ‘glocal’ lenses of the Doughnut model developed by the British economist Kate Raworth: to what extent to these legal innovations support the thriving of humans and environment both locally and globally?

Laura Burgers
Laura Burgers is Assistant Professor in the Amsterdam Centre for Transformative private law (ACT) of the University of Amsterdam, the Netherlands.

Kinanya Pijl
Kinanya Pijl is Assistant Professor in the Amsterdam Centre for Transformative private law (ACT) of the University of Amsterdam, the Netherlands.

Access_open Environment Tax Law to Save the Planet?

Keywords environmental taxes, carbon taxes, airport taxes, plastic taxes
Authors Ilona van den Eijnde
AbstractAuthor's information

    The EU and Member States of the EU have introduced a number of new fiscal policy measures aimed to combat climate change in the past three years and will introduce more in the coming three years, including but not limited to (national) carbon taxes, airport taxes, plastic taxes, and likely a carbon border adjustment tax and taxation of aircraft fuels. To what extent can measures of fiscal nature standalone aid in preventing climate change in the EU by changing producer’s or consumer’s behaviour? Or in other words: could Environmental Tax Law Save the Planet?

Ilona van den Eijnde
Ilona van den Eijnde is a PhD researcher at the Erasmus School of Law of the Erasmus University Rotterdam, the Netherlands.

Access_open How Taxes of Local Governments Can Contribute to Climate Goals

Keywords local taxes, municipal taxes, property tax, climate goals, climate objectives
Authors Arjen Schep, Anneke Monsma and Robert Kastelein
AbstractAuthor's information

    This article examines the roles (local) taxes can play in pursuing climate goals. The authors analyse the factors within the Dutch context which are limiting, and which are contributing to the effectiveness of the use of local taxes in the pursuit of climate goals. On the one hand, (local) taxes can serve their primary purpose: funding government spending, for example the creation of certain sustainable facilities. On the other hand, taxes can give a financial incentive to influence behaviour by improving the business case for sustainable solutions or make unsustainable behaviour more expensive or sustainable behaviour financially more attractive. This article presents examples of both funding sustainable facilities as of stimulating desired sustainable behaviour by means of a certain Dutch local tax measure. Despite the examples presented, we conclude that under the current legislative restrictions, in the Netherlands local taxes can play a modest role within the sustainability policy of local governments. The research into the current legal restrictions and possibilities for achieving climate goals with local taxes in the Netherlands leads to an analysis of insights that are also relevant outside the Dutch context.

Arjen Schep
Arjen Schep is endowed professor Taxes of Local Government at Erasmus School of Law and Scientific Director at the Erasmus Study Centre for Local Taxes (ESBL).

Anneke Monsma
Anneke Monsma was scientific researcher at ESBL until the end of 2022 and is now visiting researcher at the Department Law & Tax.

Robert Kastelein
Robert Kastelein is scientific researcher at the Erasmus Study Center for Local Taxes (ESBL).

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