TRENDS IN CLIMATE LAW TEACHING

Source: Journal of Environmental Law (27.01.2020) Authors: Michael Mehling, Harro van Asselt, Kati Kulovesi, Elisa Morgera.

Original Text has been edited by AALEP.

Introduction

Climate law has grown of age in the legal curriculum. In little over a decade, it has evolved from being, at best, a nascent theme featured alongside other sectoral topics in environmental law classes to becoming the subject of its own degree programmes, courses, textbooks, and dedicated journals. While its existence as a separate field of law has been debated, and its boundaries to neighbouring areas of law—most notably environmental and energy law—are unquestionably porous, it has seen the emergence of a vibrant community of academic teachers who identify themselves as climate lawyers, passing on their knowledge and interest to a rapidly growing student body.

As climate change mitigation and adaptation rise in importance, so should demand for legal expertise in government bureaucracies and international organisations, the judiciary, private corporations, civil society and interest groups, and traditional law firms and consultancies. Accompanying that demand is a growing interest in relevant courses and academic credentials through which to build and document climate law expertise.

But climate change also poses unique challenges for academic educators. It has become commonplace to designate it a ‘super-wicked problem’, reflecting its uncertainties, urgency, contentiousness, and intractability. Not unlike environmental law, students have to first develop an appreciation of the underlying natural phenomenon, its anthropogenic causes and its physical and socioeconomic impacts before they can fully understand the objectives, principles, and instruments of climate law. Legal responses to climate change are, in turn, shaped by complex and rapidly evolving scientific, political, moral, and economic considerations, necessitating an interdisciplinary perspective that transcends the traditional confines of legal doctrine and methodology.

Addressing climate change calls for solutions across all regulatory planes, from international to local to transnational, with repercussions across jurisdictions and between different levels of governance. Climate law also tends to encroach on other areas of law, such as constitutional and administrative law, energy market regulation, or planning, and natural disaster law. Teaching the law of climate change, in short, requires both a generalist perspective to capture its sprawling horizontal scale and manifold linkages, as well as a specialist perspective to reflect its vertical layers and complex technicalities.

These very attributes of climate change are also what justify thinking about how it is taught at universities. As the stakes of climate change continue to rise, law schools are increasingly unable to ignore the subject in their course offerings. Similarly, many established areas of law can no longer be taught without at least some reference to climate change, yet the scale and breadth of the problem make it nearly impossible to do it justice with mere passing treatment. Its complexity along multiple dimensions also prompts questions of teaching methodology, and challenges established approaches to legal instruction and student evaluation.

THE CURRENT LANDSCAPE OF CLIMATE LAW TEACHING

Trends in Climate Law Education

The intensifying physical and socio-economic effects of climate change, mainstreamed by political debates and scientific evidence on anthropogenic disruptions to the global climate system, have motivated changing legislation, regulation, litigation and institutions. Climate law is becoming one of the fastest progressing areas for research . Legal scholars are enthusiastic about producing articles, monographs and textbooks. Dedicated journals like Carbon and Climate Law Review and Climate Law are subscribed globally. They elaborate diverse legal responses to the climate emergency, enriched by deliberate analyses of how to apply existing legal rules or create new ones to achieve climate goals. A wide variety of substantive topics are covered: flexibility mechanisms, climate finance, loss and damage, and geoengineering, among others. Unsurprisingly, climate law is also permeating everyday legak practice. More and more law firms have created climate change divisions to consult on transactions and compliance issues: for example, the financial and regulatory risks that climate change is posing to insurance, pension and broader institutional investment. Climate litigation as an avenue to advance or hinder action on climate change is also picking up steam.

Recognizing climate law as a distinctive field may orient these developments in a coherent manner, enhance its strengths compared with the established disciplines and create support for it to be included in the legal curriculum. As a comparatively young professional community, climate law is in the process of maturation. It has been challenged for not investigating more theoretical questions and for its unformed methodology for guiding complex research. Because climate change is a topic that involves many branches of knowledge and affects a wide range of policies, researchers and practitioners of law in this area need a good sense of regulatory frameworks across different legal fields. Equally important is to reconcile and integrate insights from other disciplines, such as economics, political science, sociology and psychology, while distinguishing the unique role of law from that of the other disciplines in tackling climate change. All these opportunities and challenges should encourage law schools to create forums for sustained reflection on the achievements and constraints of climate law scholarship and practice.

Students seeking a specialist degree have been able to choose, at different times, from several Master of Laws (LLM) programmes focused on climate change (see here below a non-exhaustive overview of programmes for which recent information is available online) or offering a relevant concentration. Given the wealth of fertile questions for advanced research, climate law is also a popular subject of doctoral studies.

Postgraduate Climate Law Programmes in Europe

1. Jean Moulin Lyon 3 University (France) : Master in Global Climate Change Law
2. University of Edinburgh (UK) : LLM in Global Environment and Climate Change Law
3. University o Strathclyde (UK): LLM in Climate Law and Policy
4. University of Wales, Aberystwyth (UK): LLM in Climate Change and Human Rights
5. University of Dundee (UK): LLM Energy and Environmental Law
6. University of Malta & KU Leuven (Malta/Belgium): LLM in Energy, Environmental and Climate Change Law
7. University of Warsaw (Poland) & Sustainability College Bruges (Belgium): LLM in Energy Environmental and Climate Change Law
8. University of Eastern Finland (Finland): Master’s Degree Programme in Environmental Policy and Law. Specialization: Environmental and Climate Change Law
9. University of Uppsala (Sweden): Nordic Master’s Degree Programme in Environmental Law
10. UiT the Artic University of Norway (Norway)

Postgraduate Climate Law Programmes outside Europe

1. Chinese University of Hong Kong (PRC): LLM in Energy and Environmental Law
2. Facultad Latinoamericana de Ciencias Sociales (Argentina) : Master in Climate Change Law and Economics (Maestria en Derecho y Economia del Cambio Climatico)
3. Georgetown University (USA): LLM Environmental and Energy Law
4. Pace University (USA): LLM in Environmental Law. Specialisation Energy and Climate Change Law
5. University of California (Berkeley): LLM- Specialisation Energy and Clean Technology Law.
6. Pace University (USA): LLM in Environmental Law. Specialisation Energy and Climate Change Law
7. National Autonomous University of Mexico (UNAM): Diploma in Climate Change Law and Governance
8. University of Tasmania (Australia): Master of Environmental Governance (Oceans, Polar and Climate).

Relevant activities at universities in continental Europe are certainly underrepresented. A vast majority of the course syllabi available online have their origin in the USA; likewise, the market for climate law textbooks is dominated by North American publishers.

The dominance of the USA when it comes to relevant course syllabi and textbooks is a consequence of the large number of law schools in that country, the fact that law is taught there at graduate rather than undergraduate level, the US tradition of assigning a course textbook with mandatory reading for each class, and the more flexible curriculum and greater level of specialisation encouraged in US legal education after the first year. By contrast, specialised degrees focused on climate change are almost exclusively offered by European institutions, a trend which could, in turn, be associated with the greater maturity of climate policy and legislation across Europe, the fact that a US law degree already is a graduate degree, as well as the considerable cost associated with university attendance in the USA. Differences in teaching norms and classroom culture may also explain the uneven geographic distribution of curricula and teaching resources.

The need for instruction in climate law is met with its integration in regular courses and degree programmes covering environmental law, energy law, natural resources law, and other established subjects. Teaching climate law, in other words, has become mainstream.

Going forward, the broadening of climate action under the Paris Agreement, including a greater focus on the national level, and a continued rise in climate change impacts may spur renewed interest in specialised qualifications. A steady market for postgraduate degree programmes taught in English, coupled with growing efforts to strengthen global visibility and international student recruitment at European universities, could help sustain existing LLM programmes dedicated to climate change. For the climate law curriculum more generally, this evolving context may manifest itself in a shifting focus from mitigation to adaptation, as well as expanded coverage of practical issues such as renewable energy contracting, infrastructure project finance, and corporate climate risk disclosure. Emerging regulatory and governance challenges are also likely to feature increasingly in climate law education, including topics such as climate engineering and negative emissions technologies, management of emissions from and impacts on, international spaces and activities, the use of new technologies (e.g. distributed ledger technology) in carbon markets and accounting, and the growing understanding of the negative impacts on human rights and biodiversity of climate change and its response measures.

Climate Law in the Curriculum

Altogether, the dynamic pace of the subject matter poses considerable challenges for curriculum planning and the provision of adequate teaching material. General courses and teaching material frequently begin with an introduction to climate change science and occasionally the politics, ethics and economics of climate change; proceed to an overview of the international climate regime and its historical evolution; and outline the applicable climate law in a particular domestic context or in comparative perspective.

Some offerings add a discussion of regulatory instruments, sectoral policies and strategies, regional and local action or the growing role of climate litigation. Most courses and textbooks tend to feature both climate change mitigation and adaptation, although some place greater weight on one or the other dimension of climate law, with mitigation usually dominant. General principles and doctrines are rarely afforded much space, with an applied focus on ‘black letter law’, possibly favoured on account of the short history and lacking maturity of the field.

Although intuitive, this widely deployed structure results in significant exposure to rapidly changing legal and policy frameworks. Climate efforts continue to evolve at all levels of governance, often undergoing radical transformation, for instance, when new rules are adopted or existing rules rolled back. 

While curricula and syllabi can be updated ahead of each new course delivery—albeit with appreciable effort, given the scope of relevant developments across multiple areas of epistemic endeavour—this option may be less viable for comprehensive textbooks. Whether this supports a greater focus on fundamentals, including general concepts and theoretical underpinnings, is therefore a valid question. Far more than a mere practicality, however, it also touches upon the fundamental question of the approach most suited to the exigencies of the subject matter and the needs of students to apply what they have learnt after graduation. Rather than impart comprehensive—and transient—knowledge of the extant rules at any given point in time, an approach to climate law instruction that aims at comprehension of broader themes and central debates is likely to better equip students, including those majoring in the natural or social sciences, to navigate the subject matter as it evolves during in their careers.

If covering all the complexities of climate change—including its scientific and socioeconomic dimensions—already poses a challenge for dedicated climate law courses, it is all the more daunting to feature the topic in other issue areas, such as environmental, trade, or energy law. While classes on these topics can scarcely ignore climate change altogether, they have to accommodate it among countless other issues in their curriculum. Condensing a subject matter of the scale and complexity of climate change into one or two sessions risks overwhelming students and eroding their interest in the topic. Here, too, an approach that emphasises conceptual understanding is likely preferable over technical detail and attempts at exhaustive coverage of the topic.

Conversely, one could also raise the question whether courses and textbooks dedicated to climate law sufficiently convey how and to what extent other areas of law (such as biodiversity law, human rights law, law of the sea, trade law, energy law and so on) have begun to address climate change, including the negative impacts of climate change response measures. Future climate lawyers would benefit from understanding the rules, tools and approaches in other areas of law that can be drawn upon to more effectively realise the objectives of climate law, and, equally importantly, to reflect on the risk of climate law negatively impacting the realisation of other legally enshrined objectives and principles.

As the body of rules pertaining to climate change continues to expand, a parallel trend is taking shape. Overview or ‘survey’ courses are increasingly being joined by course offerings that single out a discrete aspect of climate law and policy, and either fashion an entire syllabus around it, such as a course on climate finance or geoengineering, or feature that aspect in a course on another topic, such as including a discussion of climate refugees in a course on human rights. This trend towards more specificity avoids some of the difficulties posed by the breadth and scale of climate change, and allows venturing into selected issues in much greater depth. It may also be an inevitable consequence of the mainstreaming of climate change across the legal curriculum

The way forward

European law schools must be part of the fight against climate change, as they occupy central roles in teaching future climate lawyers and scholars and in producing climate-related legal knowledge. For the many that have not yet realized their role in delivering and pushing forward climate action, the starting point could be a discussion of objectives, structures, pedagogies and institutions relating to climate law teaching and learning. Law schools should also engage with lawyers currently in practice, judges, policy-makers and the public as they develop their programs. They should consider as well various types of learning experience and teaching methods (such as service learning and interdisciplinary or even transdiciplinary teaching) that will prepare legal education to address the legally disruptive nature of climate change.

.Climate law teaching may vary from one school to another due to availability of professors (including their expertise, workload and leaves),interest and demand from students and the influence of other stakeholders (such as law firms, legal associations and civil society groups) on the content and format of legal education. A course on Climate Change Law should allow experimentation on various topics and interdisciplinary teaching and learning. The instructor may be  an esteemed climate law scholar, and guest speakers may also be invited to most classes. A physicist and a political scientist may lead the discussions on climate science and climate governance and politics, respectively. Other speakers may include environmental law professors and lawyers who offer perspectives on climate policy choices and decisions and associated constitutional debates, the different sites and forms of climate law and its interaction with international trade and energy. In each class, the presentations from the instructor and speakers may be  followed by focused class discussion, to which students are expected to actively and critically contribute. Students would be evaluated on their research papers, their performance in the class discussion and their reaction memorandums based on the required reading.