A Radical Shift for the Future of Environmental Law: the Potential and Risks of the Use of Technology for the Benefit of the Environment

The rate of environmental decline over the past few decades has been alarming, reflecting the relative ineffectiveness of the expanding body of environmental law that has been enacted since the early 1970s. Scholars have analysed the causes for the sub-optimal performance of environmental regulation, and put forward a plethora of explanations. Our scientific understanding of how ecologies interrelate and what critical thresholds exist remains sketchy at best, which hinders the articulation of appropriate regulatory goals. It is also hard to channel the behaviour of citizens for as long as the costs of environmental harm are borne by future generations that are not represented in political and legal processes. Last but not least, disequilibrium exists between those having an interest in pursuing a certain (industrial) activity and the environment, which cannot fend for itself, yet is not easily represented in the law. The search is on for new regulatory approaches that radically improve on the environmental performance of the current regulatory regime. As environmental threats, such as climate change, are becoming ever more acute and serious, and public funds simultaneously increasingly scarce, technology is becoming part of the standard toolbox of environmental regulators. This being so, we can no longer postpone thinking about the implications of the use of technology for environmental law. First and foremost, this is because changes in one mode of regulation will reverberate across the regulatory landscape. Norms that would be challenged by the employment of technologies are in particular those pertaining to access to environmental information, public participation in environmental decision-making and access to justice in environmental cases. These norms not so much regard the effectiveness of environmental regulation, but seek to safeguard its legitimacy. Legitimacy, in this context, implies that both the goals pursued by regulation are proper (or, put more specifically, that regulation responds to major environmental needs) and that regulators pursue those goals in the right way (respecting fundamental rights, proportionality, taking account of principles of environmental law, such as polluter pays, precaution etc.). In general terms, the paper hence revolves around questions concerning (a) the environmental potential of the employment of technology and (b) the compatibility of the use of technology with the existing regulatory landscape. We will look into these issues by focussing on one area where technological innovation may profoundly impact on environmental law: geo-engineering. Geo-engineering is defined as deliberate large-scale manipulation of the planetary environment to counteract anthropogenic climate change. (International) legislation explicitly aimed at regulating the various forms of geo-engineering is still absent. We will analyse how international law should react on the emergence of these innovative technologies. A twofold response seems in order. First, the development and deployment of these technologies needs to be regulated in such a way as to avoid unwanted negative impacts on the environment. Second, legislation may be required to embed geo-engineering within the existing regulation. We will show the various ways in which this can be done. This case, thus, offers an interesting opportunity to explore both the potential and risks that arise when using new technologies to combat environmental degradation