“Climate change calls for a technological revolution, which the law will have to encourage and accommodate”. With this statement Leonie Reins, Professor of Public Law and Sustainability at Erasmus School of Law, started her inaugural lecture on 15 December 2023. In her lecture titled Yesterday is too early, but tomorrow is frequently too late: Regulating technology in a world in transition, she argues for an integrated approach where law works together with technological developments and ethical values that facilitate the climate transition.
“We find ourselves in the middle of an energy transition, a broader sustainability transition, and a digital transitionto which we can refer to as a climate transition”, Reins states. Technology will determine both the extent to which we can reduce emissions and the extent to which we will be able to retain our current ways of life. The attainment of the Paris-Agreement targets is therefore dependent on the development of technologies like energy efficiency, renewables, and hydrogen. But which role does the law play in this climate transition?
“Yesterday was too early, but tomorrow will be too late”
“Since the issue of climate change is so pressing the current transition, unlike previous transitions, calls for radical and immediate behavioral and institutional changes. To accommodate these changes rules and regulations are needed, but the nature of this transition poses practical and intellectual challenges for legislation, like the interdependence of law and technological developments and the fragmentation of the law regarding the climate transition.”
The Trias
To overcome this challenge Reins uses the Trias as a legal framework for the climate transition. The framework consists of objectives, principles, and rules. “In a perfect world we would have a large number of rules that would correspond perfectly with a smaller number of principles. Those principles, in turn would be a harmonious expression of one or two objectives, but as we know the law is not so orderly”, Reins states. During her lecture Reins showed how various elements of climate transition law fit into the Trias.
The architecture of climate transition law
Reins argues that the concept or principle of sustainable development can fulfill an important function in the architecture of the law of the climate transition. The underlying premise of the principle of sustainable development is that the pattern of economic growth ought to be modified so that growth does not become unsustainable. “The problem is that this principle is rather vague and therefore poses an obstacle to significant legal and behavioral change and it prevents genuine commitments to social equity and ecological sustainability,” Reins states.
However, the principle of sustainable development is substantiated in the current Sustainable Development Goals (SDG’s). Regardless of their criticism, they are the most detailed elaboration of the principle that has appeared thus far and the theme of technology plays a highly significant role in most of the SDG’s. This results in a big challenge for legislators as they are to predict how technology will evolve and how it will impact society.
Overcoming the limitations
To overcome this issue, principles can be developed in two ways. Firstly, domain specific principles can be developed for all fields of law regarding the climate transition (environmental law, energy law and climate law). “This is easier to achieve but success is not guaranteed, as we see in the current approach to the law governing the transition”, according to Reins.
The second approach which will overcome this limitation is identifying a general principle. Reins argues that sustainable development is particularly suitable as an overarching organizing principle for climate transition law. “It has three obvious advantages: the principle is well established in the EU primary law, it is exceptionally well developed through for example the SDG’s, and lastly and most significantly it can be developed to be sensitive to technology.”
How can we future-proof the law?
Reins is dedicated to researching if the general principle of sustainable development can overcome the issues regarding the climate transition law. “Principles cannot be operationalized without rules. We have many rules. However, even the best among them are unlikely to withstand the test of time because they do not anticipate future technologies. We need to strengthen the principles that we have instead of trying to search new ones, and we should focus on drafting future-proof and adaptive rules to implement these principles. During my research I aim to learn how to future-proof the law and its rules to find out how the Trias can operate in a multilevel governance framework.”
- Professor