In her post, Chiara Armeni discusses the different ways in which legal academics can take responsibility for the climate crisis. As far as research activities are concerned, she argues that the centrality of climate change calls upon all legal scholars to reflect on their branch of law from a climate perspective. One such attempt at rethinking the law from a climate perspective is taking place within the context of a bilingual (French/English) administrative law research network: the “Future of administrative law”. This research network was created in 2018 in the wake of the closure conference of the Chaire Mutations de l’Action publique et du Droit Public held by Professor Jean-Bernard Auby at Science Po Paris. The name of the research network is in line with the title of the closure conference of the Chaire, the proceedings of which were published in 2019 by LexisNexis (Auby 2019).
In line with an academic tradition willing to contribute to solving the social problems of its time, the overall objective of the “Future of administrative law” network is to promote, in academic circles and public debate, thinking about the major challenges of the contemporary world from a public and administrative law perspective. The rationale for this approach is twofold. On the one hand, the network is committed to the idea that legal academics should not shy away from engaging with major societal challenges. This is because a legal perspective on these challenges, and an administrative law perspective in particular, often offers fruitful insights, leading to a better understanding of the nature of these challenges and possible ways to overcome them. On the other hand, there is also a shared belief within the network that administrative law rules and principles are not mere technical artefacts but, on the contrary, encompass specific ideas on the relations between public bodies, citizens, civil society and market forces, which deserve to be explored. As these ideas have evolved, so have administrative law concepts, principles, and rules.
In line with its overall objective, the “Future of administrative law” research network has been working in recent years on climate change approached from an administrative law perspective. Through a series of conferences and draft papers, we have explored the relations between administrative law and climate change, seeking to understand, on the one hand, the extent to which administrative law rules and principles could be part of the climate problem, and/or part of its solution, and, on the other hand, the extent to which administrative law itself would be changing in the face of the climate challenge. I give hereafter three examples of these attempts.
The first line of research activities of the “Future of administrative law” network has focused on the role of cities in the fight against climate change. Starting with the observation that cities are particularly impacted by climate change, but also developing innovative solutions to mitigate climate change and adapt to its effects, we have decided to analyse the legal framework in which cities could develop their climate action, its limits and potential, as well as its evolution. This has led us to reconsider, from a comparative perspective, how different legal systems approach the powers and responsibilities of cities and local authorities more generally, and whether the climate crisis is leading to a shift in the relations between the different levels of government. The results of this project will be published in the coming months in a collective monograph edited by Emilie Chevalier (with Springer).
Another line of research activities of the “Future of administrative law” research network has discussed the extent to which different subbranches of administrative law are well-equipped to address the challenge of climate change. These discussions were notably at the centre of a June 2022 workshop held at the Université libre de Bruxelles. An example of a sub-branch of administrative law which might require reassessment in light of the climate transition is public procurement law, and, particularly, EU public procurement law (Andhov et al. 2020). On the one hand, there are broad possibilities to include climate requirements in public procurement under the applicable EU legal framework. On the other hand, however, EU public procurement law has developed intending to contribute to the creation and the well-functioning of the EU internal market, and such an objective can be in tension with e.g,. “buy local” policies that would be more climate-friendly. This observation, therefore, raises the question of whether the foundations of European public procurement law should be revisited in the light of climate change, or whether they allow for sufficient leeway to use public procurement in line with the climate transition.
The research activities of the “Future of administrative law” network concerning climate change have further also focused on the contribution that administrative law scholarship could make to the debate whether democracies and their often cumbersome procedures can reduce drastically and quickly enough greenhouse gas emissions, or whether more technocratic or authoritarian forms of government are needed to do so (Shearman and Smith 2007; Armeni and Lee 2021). In particular, the contribution that administrative law principles common to European States such as those flowing from the Aarhus Convention, or those flowing from the non-delegation doctrine, could make to protect the democratic credentials of the fight against climate change have been highlighted. Some of this work that originated in the network will appear in the forthcoming inaugural issue of the French Yearbook of Public Law.
I believe that the activities of the “Future of Administrative Law” research network are an example of how legal scholars and academics can take responsibility for climate change while avoiding the much-debated perils of “scholactivism”. The approach of the network so far has not been “activist”, in the sense that it has not been committed to achieving specific material results other than rigorously producing knowledge. This work is nonetheless undertaken with the belief that scrutinising carefully the relations between administrative law and climate change helps us – as administrative law scholars – to reflect better on our field of expertise, the world and ourselves, and helps clarify possible future directions in which administrative law could develop to better tackle the climate crisis. For example, the research undertaken within the context of the “Future of administrative law” research network could eventually lead to doctrinal or judicial reassessments of the scope of established public law principles, such as those that define the relations between judges and the executive, to the extent that these principles would have been proved unfit for the climate transition. As such, besides being intellectually rewarding, the approach that underlies the work of the network seeks to be impactful, although in a modest and incremental – but perhaps realistic – way.
Posted by Emmanuel Slautsky Professor of Public and Comparative Law, Université libre de Bruxelles
Suggested citation: E. Slautsky, “Climate change and the responsibility of administrative law scholars: the example of the “Future of administrative law” research network”, REALaw.blog available at https://realaw.blog/?p=2323
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