Environmental and planning laws for deeply uncertain climate futures: Are recent US and EU law reforms fit for purpose?

Abstract

After several decades of inaction, climate change laws are finally heating up. Public law decision-making processes, including environmental, infrastructure, urban planning and other administrative approvals, will substantially determine how societies respond to climate change. In the US, the 2022 Inflation Reduction Act opened the floodgates on billions of dollars in federal funding. Attention is now shifting to accelerating environmental approval processes, among other legal pathways to decarbonisation in the US. For example, the 2023 Fiscal Responsibility Act included reforms to the US National Environmental Policy Act environmental impact assessment procedures, although these fell short of more radical recent reform proposals debated by Congress. Meanwhile, in the European Union, implementation of the ‘European Green Deal’ package was severely disrupted by the war in Ukraine. Most prominently, this required emergency regulatory interventions by the EU to expedite approval processes for renewable energy projects and liquefied gas terminals in Member States. At the same time, the EU has continued with various legislative measures in its ‘Fit for 55’ package to implement a 55% reduction in the bloc’s greenhouse gas emissions by 2030, as required by the European Climate Law. One relevant ‘Fit for 55’ measure was the recent revision to the EU Renewable Energy Directive, which also requires Member States to accelerate renewable energy projects. Here, as an example of related implementation action by Member States, we take the German federal government’s amendments to its Renewable Energy Act (EEG – Erneuerbare-Energien-Gesetz) in 2022.

These recent transatlantic legal developments focus attention on existing environmental law approval processes and call into question typical features of environmental governance, including established public participation procedures. This paper critically analyses these parallel legal developments in the US and the EU/Germany, applying comparative law methods. In particular, this paper responds to a recent call to rethink cherished public participatory and procedural rights in environmental law, in the interests of accelerating the energy transition (Ruhl and Salzman 2023). There is a lot that is unknown about the green transition; climate futures are deeply uncertain. In the rush to expedite renewable energy projects, this paper discusses the broader implications of procedural law reforms and aims to identify potential blind spots and unintended consequences. This includes the potential for accelerated procedures to be used by fossil fuel or other ‘undesirable’ forms of development in future. Further, these reforms to procedural laws substantially override planning laws and policies at local levels, raising justice concerns. If ambitious decarbonisation targets and the global energy transition are to be achieved, further difficult trade-offs and regulatory reforms will be required because of the deep uncertainty of climate futures. Yet we also argue that all is not lost; viable alternative frameworks exist, such as decision-making under deep uncertainty (DMDU), which could be enacted in an appropriately contextualised manner in both the more laissez-faire US and more technocratic EU. In reflecting on plausible law reforms, we ask: How could law better deal with climate change deep uncertainty? How can the legitimacy of and public confidence in the planning system be maintained? How can reforms intended to encourage renewable energy projects be safeguarded against abuse?