The Rule of Climate Policy: How Do Chinese Judges Contribute to Climate Governance without Climate Law?

China's climate governance is distinguished by the contrast between an abundance of policies on climate change and the lack of legally binding laws. This article argues that Chinese courts bridge this difference, which fosters a ‘rule of climate policy’ rather than a strict rule of law. The effective authority of Chinese climate policy is made possible in practice both by provisions of the Chinese Constitution and the prevailing use of legal reasoning. China's constitutional design of ‘ecological civilization’ delegates the duty and the power of managing climate change issues to the executive branch of its government. Most Chinese documents on climate governance have no binding legal force, which means, according to positive law, that they cannot serve as legal grounds for judicial decisions. Chinese judges, in deciding climate-related disputes, must combine legal provisions and non-binding materials to achieve regulatory goals. They use non-legal materials to support statutory or contractual interpretations and determine the existence or limits of rights, which alters the meaning and scope of existing legal terms and principles. This rule of climate policy is possible in the courtroom because judges justify public policy considerations with arguments of principle that are substantiated in various non-binding climate plans.

Conceptualizing the Transnational Regulation of Plastics: Moving Towards a Preventative and Just Agenda for Plastics

This article categorizes and evaluates how regulatory regimes conceptualize plastics, and how such conceptualizations affect the production, consumption, and disposal of plastics. Taking a doctrinal and policy-oriented approach, it identifies four ‘frames’ – that is, four distinct and coherent sets of meanings attributed to plastics within transnational regulation – namely, plastics as waste to be managed; a material to be prevented; a good (or waste) to be traded freely; and inputs or outputs in production-consumption systems. Based on this analysis, three significant deficiencies in the transnational regulation of plastics are identified: the failure to frame plastics in terms of environmental justice and human rights issues; insufficient focus on plastics prevention (rather than management); and the role of law in reinforcing its production and consumption.

From Bushfires to Misfires: Climate-related Financial Risk after McVeigh v. Retail Employees Superannuation Trust

The year 2020 proved to be a clarion call for global society. There is no longer doubt that increasingly we are experiencing unpredictable events, known as ‘black swans’, ranging from pandemics to financial meltdowns. One of the ’climate black swans’ against which experts have cautioned is the financial crisis caused by climate change. In this context, the Australian case of McVeigh v. Retail Employees Superannuation Trust for the first time tested climate risk and the fiduciary duties of retail pension funds. Settled in November 2020, the case has already raised the bar for climate risk practice in pension funds. In particular, McVeigh suggests that courts, as well as out-of-court settlements, may articulate a duty, rather than grant permission, for pension funds to consider climate-related financial risk in their investment decisions. The article builds on McVeigh to ask two questions. Firstly, what is the role of climate change litigation in promoting climate regulation by pension funds? Secondly, what is the relative importance of pension funds for the risk management of climate-related financial risk via due diligence compared with risk assessment via disclosure? Fundamentally, the article explains climate-related financial risk as a cultural phenomenon and argues that a discussion on pension fund fiduciary duties must consider disclosure in addition to due diligence. It argues that McVeigh articulated the need for a normative approach to pension fund disclosure duties and an extension of the field of climate-related risk disclosure to embrace climate-related risk due diligence.