Journal of Environmental Law 25:3 The Author 2013. Published by Oxford University Press.

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doi:10.1093/jel/eqt019 Advance Access published on 15 October 2013
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Editorial Comment

Its All About Climate Change,

Stupid! Exploring the
Relationship Between
Environmental Law and Climate
Law
Chris Hilson*

Abstract
This comment analyses the relationship between climate law and
environmental law. It examines this relationship from both a norma-
tive and a descriptive point of view. Normatively, it brings together
various strands from some of the existing literature to form an overall
model of the relationshiplooking at crowding out, crowding in,
climate exceptionalism and adding in climate unexceptionalism.
In descriptive terms, it considers, inter alia, super wickedness, instru-
ments and governance, mitigation and adaptation.

Keywords: Climate law, crowding out, crowding in, climate exception-

alism, climate unexceptionalism, super wickedness, governance,
adaptation

1. Introduction
The 25th anniversary of the Journal of Environmental Law (JEL) provides a
useful opportunity to reflect on the current state of environmental law. One
obvious area of law that was missing at the start of the Journal and which

*School of Law, University of Reading, UK (c.j.hilson@reading.ac.uk).

...........................................................................
Journal of Environmental Law 25:3 (2013), 359^370
360 Chris Hilson

has only really recently taken off as a distinct area of study,1 is climate change
law or climate law. As well as attracting increasing space in JEL,2 there are
now two dedicated academic journalsClimate Law3 and the Carbon and
Climate Law Review4devoted to scholarship in the field; and there has been
a mushrooming of monographs, edited collections and special issues.5 In add-
ition, many universities, in the UK and abroad, either have or are developing
climate law modules or programmes, and a number of these are associated
with specialist climate law research centres or institutes and even, in some
cases, Chairs.
The aim of this comment is to explore the relationship between environ-
mental law and climate change or climate law. Has environmental law
become largely all about climate law, as the first part of the comments title
suggests? Or has climate law drunk too deeply from the well of environmental
law? To what extent is climate law exceptional or unique? Or, to look at it
from the reverse side of the coin, how far does it share features in common
with environmental law? These are all questions that the piece seeks to
address, the answers to which involve, as will be seen, both descriptive and
normative elements.

2. Crowding Out, Crowding In, Climate Exceptionalism

and Unexceptionalism
The crowding out thesis certainly suggests that environmental law has become
all aboutclimate law: because environmental law is increasingly dominated by
climate law, the argument is that the latter has tended to crowd out the other nu-
merous concerns of environmental law, whether that be chemicals, water pollu-
tion, habitats destruction or many additional examples that one might cite.6 The
logical extreme of crowding out would be to adopt a conspiracy theory view of

1 See eg Jacqueline Peel,Climate Change Law: The Emergence of a New Legal Discipline (2008)
32 Melb UL Rev 922.
2 See the Journals online climate change collection, which draws together many recent pieces,
5http://www.oxfordjournals.org/our_journals/envlaw/ccac.html4accessed 26 July 2013.
3 5http://www.iospress.nl/journal/climate-law/4accessed 26 July 2013.
4 5http://www.lexxion.de/zeitschriften/fachzeitschriften-englisch/cclr.html4 accessed 26 July
2013.
5 From a voluminous literature, see eg Cinammon Carlarne, Climate Change Law and Policy
(OUP 2010); Stephen Farrall, Tawhida Ahmed and Duncan French (eds), Criminological and
Legal Consequences of Climate Change (Hart 2012); Marjan Peeters, Mark Stallworthy and
Javier de Cendra de Larragan, Climate Law in EU Member States: Towards National Legislation
for Climate Protection (Edward Elgar 2012); Special Issue: Global Warming, Governance and
the Law (2008) 30 Law & Policy 385.
6 World Bank, Crowding Out or Crowding In? Climate Change and the Broader
Environmental Agenda, 5http://siteresources.worldbank.org/ENVIRONMENT/Resources/
244380-1250028593656/6382907-1252510780845/6428643-1256655379723/6510806-
1258739266750/Rebalancing_the_environment_agenda_draft_CN.pdf4accessed 26 July 2013.
 Its All About Climate Change, Stupid! 361

climate change, seeing it as an elaborate plot to distract attention from core issues
of environmental concern. The fact that climate change talk has tended to dom-
inate the global and national environmental agendas but that this has been
accompanied by very little in the way of meaningfulactionmight tempt some to-
wards such a theory: climate change makes a lot of noise, keeping other issues
off the agenda, but all the while with no real risk of what is likely to be costly
action of any kind arising from it.
A response to the crowding out thesis might come from one of two direc-
tions. First, there is the contrasting crowding in thesis, which argues that, in
fact, far from crowding out other environmental issues, action on climate
change inevitably produces numerous co-benefits in terms of other environ-
mental issues.7 Action to reduce CO2 emissions by lowering speed limits for
example, or introducing vehicle congestion charging, will inevitably also pro-
duce reductions in air pollutants like SO2 and ground-level ozone which have
harmful effects on human health. The fact that climate change has such a
high political profile, it is argued, can only help rather than hinder progress
on a wide range of environmental issues.8
The second response is to argue the reverse in the sense that, rather than
environmental law becoming all about climate law, in fact, climate policy has
become too much about environmental law. This perspective has become
known as climate exceptionalismas Nagle puts it, the belief that the prob-
lem presented by climate change is different from the air pollution problems
that we have addressed in the past.9 Possibly the best-known proponents of cli-
mate exceptionalism are Shellenberger and Nordhaus. For them, climate
change should not be seen as an environmental law problem involving CO2
as another type of air pollution to be controlled via environmental regulation.
This is of course just how the US Supreme Court famously did view climate
change in the landmark Massachusetts v EPA case,10 in which it ruled that
CO2 was a pollutant subject to control by the Environmental Protection
Agency under the Clean Air Act. Shellenberger and Nordhauss problem with
this approach is that, in their view, it presents a dead-end for environmental-
ism. Framing climate change as an environmental problem involving green-
house gases which requires a regulatory technical fix or solution to avoid
catastrophe is, they argue, a negative frame which puts the technical policy
cart before the vision-and-values horse.11 Just as Martin Luther King said I

7 ibid.
8 ibid.
9 John Copeland Nagle, Climate Exceptionalism (2010) 40 Environ L 53, 54. The term climate
exceptionalism was first coined by Lisa Heinzerling, The Role of Science in Massachusetts v
EPA (2008) 58 Emory LJ 411.
10 Massachusetts v Environmental Protection Agency 549 US 583 (2007).
11 Michael Shellenberger and Ted Nordhaus, The Death of Environmentalism: Global Warming
Politics in a Post-environmental World 23, 5http://www.bvsde.paho.org/bvsacd/cd16/death.
pdf4 accessed 26 July 2013.
362 Chris Hilson

have a dream rather than I have a nightmare, so too should environmentalists

proffer a positive, inspiring, values-driven vision of national innovation, job
creation and energy security to be secured through a drive to a clean energy
economy.12 This vision is, it should be noted, very much one of ecological
modernisation.13
The above discussion can usefully be looked at using a policy framing
lens.14 In essence, one might argue that there can be either clear advantages
or disadvantages in framing environmental law issues in climate law terms,
or climate issues in environmental law terms. Crowding out implies that
there are potential disadvantages in framing environmental law issues in
climate law terms; crowding in, conversely, points to advantages of framing
environmental law problems using a climate law frame; and climate excep-
tionalism suggests that there are disadvantages in framing climate problems
using standard environmental law frames. That leaves a final category that
has not been addressed above, which is effectively the converse of climate ex-
ceptionalism: that there may be advantages of framing climate problems
using more typical environmental law frames. One might call this climate
unexceptionalism. And one key argument here is that there can be good stra-
tegic reasonsin say climate change litigationto stress localist impacts
more typically linked with environmental law because these may possess
greater salience than the globalism that is often associated with climate
change and climate law.15 The arguments over which frame, normatively,
should dominate are captured in Table 1.

Table 1. Modelling the relationship between climate law and environmental law

Which frame should dominate?

Climate law Environmental law

In which area of law? Environmental law Crowding in Crowding out

Climate law Climate exceptionalism Climate unexceptionalism

12 ibid 29^31.
13 David Schlosberg and Sara Rinfret, Ecological Modernisation, American Style (2008) 17
Envtl Politics 254, 259.
14 I am grateful to the anonymous referee for helping me to see it in these terms. On policy fram-
ing, see eg Donald Schon and Martin Rein, Frame Reflection: Toward the Resolution of
Intractable Policy Controversies (Basic Books 1995).
15 Again, I am grateful to the referee for this example, from which I have then derived the cat-
egory of climate unexceptionalism.
 Its All About Climate Change, Stupid! 363

3. Descriptive Approaches
Crowding out, crowding in, climate exceptionalism and climate unexceptional-
ism are arguing normatively about the relationship between climate law or
policy on the one hand and environmental law on the other. Thus, taking just
two of these as examples, crowding out sees environmental law being over-
dominated by climate law and climate exceptionalism sees climate policy as
having drunk too deeply from the well of environmental law. Normatively,
both are regarded by their proponents as an unsatisfactory state of affairs.
In this section, in contrast, we will be considering the relationship between
climate law and environmental law mainly from a descriptive rather than a
normative perspective.16 In this sense, we will be asking not whether, in stra-
tegic terms, environmental law and climate law should use each other, but
rather how, if at all, they do resemble each other in policy termswhether
that is in the nature of the problem posed or the regulatory and governance
methods adopted to solve that problem.

3.1 Super Wickedness?

What then is unique or special about climate change, or is it just like other
areas of environmental law? While there are a number of areas of environmen-
tal law which involve what have been described as wicked problems defying
easy resolution, it is only climate law that has been characterised as a super
wicked problem.17 Wicked (as opposed to tame) problems were described by
Rittel and Webber18 in terms of a range of features, including: the fact that
one cannot describe a wicked problem without having an idea of how it
should be solved (ie problem understanding and problem resolution are closely
interrelated); wicked problems have no stopping rule (there is no end point at
which one can say the problem is solved); and every solution chosen will have
significant effects and cannot be immediately corrected. As Levin and others
have noted, most policy problems can be regarded as wicked problems,19 and

16 Which is not to say that the accounts of super wickedness and climate change that are pre-
sented below do not originally have a normative dimension to themtheir authors do
indeed attach such a dimension. All I am claiming here is that one can consider whether cli-
mate change is different to other environmental issues in terms of its super wickedness from
a descriptive perspective.
17 Kelly Levin and others, Playing it Forward: Path Dependency, Progressive Incrementalism,
and the Super Wicked Problem of Global Climate Change unpublished manuscript, available
at 5http://environment.research.yale.edu/documents/downloads/0-9/2010_super_wicked_levin_
cashore_bernstein_auld.pdf4 accessed 26 July 2013; Richard Lazarus, Super Wicked Problems
and Climate Change: Restraining the Present to Liberate the Future (2009) 94 Cornell L Rev
1153.
18 Horst Rittel and Melvin Webber, Dilemmas in a General Theory of Planning (1973) 4 Policy
Sci 155.
19 See (n 17) 6.
364 Chris Hilson

environmental problems are no exception.What is said to make climate change

stand out as super wicked differs slightly between Lazarus on the one hand
and Levin and others on the other, but adopting the formers approach, super
wicked problems include: (1) the fact that time is not costless, with the longer
the time taken to tackle the problem resulting in it becoming progressively
more difficult and costly to do so; (2) the fact that those in the best place to ad-
dress the problem are not only the ones who have caused it (in the context of
climate change, rich northern states such as the USA), but they are also those
with the least immediate incentive to act within a shorter time frame (because
the impact of climate change will affect them comparatively less); and (3) the
lack of an appropriate global system of government which can institutionally
match the global scale and reach of the problem.20
While the notion of super wickedness has clearly made an impression
within the literature, my contention is that the concept of super wicked lies at
too low a level of abstraction21 to be useful beyond the issue of climate
changein other words, that the concept lacks generalisabilityor that one
can nevertheless apply the relevant criteria to other areas, which then also
become super wicked, thus denying climate change a unique position in this
regard. Can we be sure, eg, that genetically modified organisms (GMOs) are
not also a super wicked problem? Space precludes a full investigation of this
and other potential fits, but suffice to say that further research on super
wickedness needs to assess other policy fields carefully.

3.2 Targets and Instrument Choice

If super wickedness does not represent a point of uniqueness for climate
change, what about more obvious points of similarity between climate law
and environmental law? Without claiming to be exhaustive in thisand look-
ing at it principally from a domestic, regulatory lens as opposed to an interna-
tional environmental law lensone might highlight potential instrument
choice as an obvious point of similarity between climate law and environmen-
tal law, with regulators confronted by a similar need in both fields to choose
between, eg, command-and-control regulatory instruments and economic
ones. In fact, a key difference logically precedes this stage of the regulatory
policy cycle and it is worth addressing this first. In environmental law, one
often finds ambient targets and then a choice of instrument to deliver those
targets. In environmental law, these ambient targets may relate to, eg, water
or local air quality. Thus, with water quality, eg, the European Unions (EU)

20 Lazarus (n 17) 1160^1161.

21 On concepts and levels of abstraction, see further Giovanni Sartori, Concept Misformation in
Comparative Politics (1970) 64 Amer Pol Sci Rev 1033.
 Its All About Climate Change, Stupid! 365

Water Framework Directive sets a target of good status for inland and coastal
waters by 2015.22 With climate law in contrast, the targets are typically ex-
pressed in terms of a percentage reduction in greenhouse gas emissions below
a baseline by a certain date. So, eg, the EU has committed to reduce its emis-
sions by 20% below 1990 levels by the year 2020. This is not strictly speaking
an ambient target insofar as it is not a target which relates to levels of pollu-
tant in the ambient or receiving environment itself. It is rather an overall or ag-
gregate target for reductions in emissionsmore like a command-and-control
source type control that might be applied to individual plant level emissions,
except that here, it is applied to the EU as a whole (and over a longer time
period than one would normally find with plant-based standards). The reason
for this is of course because, qua greenhouse gases (GHGs), they are not pollu-
tants producing climate change damage with localised concentrations.23 As
global pollutants, it does not therefore make sense to try to measure their
local concentrations in the receiving environment.
Once these targets are set, then the two areas of law begin to look similar
again, with both typically facing a similar choice of regulatory instrument to
achieve the relevant targets. These instruments may be first-generation com-
mand-and-control in nature, using eg, emissions standards or performance
standards for either conventional pollutants or, in the case of climate law,
GHGs. Alternatively, second-generation economic instruments such as cap
and trade or taxes may be used to try to achieve the relevant targets. With cap
and trade for example, early examples were found in US environmental law
for SO2; more recently, we have the EU emissions trading scheme (ETS),24
with cap and trade for certain GHGs at the core of the EUs climate change
package. Voluntary and third-generation informational instruments (such as
labellingcarbon or eco-labelling, respectively) are other obvious examples.

3.3 Governance
While the previous paragraph examined instrument choice in the abstract and
therefore saw it as a similar potential choice confronting climate law and envir-
onmental law, a shift to a country- or region-specific governance perspective
and a focus on the actual instrument choice taken, changes matters. Here
we see that, in the EU, for example, climate law has in fact chosen to rely

22 Art 2, European Parliament and Council Directive 2000/60/EC of 23 October 2000 establish-
ing a framework for Community action in the field of water policy [2000] OJ L327/1.
23 Of course some, like nitrous oxides, may also have harmful local impacts, but these are not
harmful climate impacts from them as GHGs; and these local impacts will typically be con-
trolled separately (though as adverted to earlier in the comment, controlling them as GHGs
may produce some local co-benefits).
24 European Parliament and Council Directive 2003/87/EC of 13 October 2003 establishing a
scheme for greenhouse gas emission allowance trading within the Community and amend-
ing Council Directive 96/61/EC [2003] OJ L275/32 (as amended).
366 Chris Hilson

more on new governance techniques such as economic instruments than pre-

vious EU environmental law. In the EU, new governance has been much in
fashion in recent years, both descriptively and normatively, in terms of a shift
in approach from the old style Community method relying on binding, hard
law directives and regulations, towards a greater use of other, often soft law
methods such as the open method of coordination found principally in EU
social law.25 As a novel instrument choice, the cap and trade-based EU ETS
might be characterised as a form of new governance, moving away as it does
from old-style EU environmental law, which was always heavily reliant on com-
mand-and-control regulatory instruments. However, as has been pointed out,
many forms of new governance like this in fact rely on elements of old govern-
ancethe EU ETS is, after all, found in the shape of a hard law directive
such that it may be more accurate to describe it as a hybrid form of govern-
ance,26 mixing new and old. In the EU then, the EU ETS element of the climate
change regime may represent something unique to climate law insofar as one
finds a new governance instrument at the core of this regime in a way seldom
found with its previous environmental law acquis; however, there is also a
similarity to and continuity with previous environmental law in that it takes
the form of an old governance directive. The unit of analysis is important
though: if one shifts to examine, eg, the equivalent US federal level, then one
finds a principal reliance on old governance approaches, with GHG emissions
tackled principally through existing command-and-control air pollution law.
There, in other words, there is little to distinguish climate and environmental
law.
This leads us on to another, related key governance issue which is common
to both climate law and environmental lawthough again, the outcome
may produce a difference between the two areasand that is whether or
not to adopt a dedicated regime. In the EU, as we have seen, the choice
was made to adopt a specialist governance regime for climate change (accom-
panied by, since 2010, a specialist Directorate-General for Climate Action),
with the EU ETS as the most obvious element of its specialist climate law pack-
age. In the USA, in contrast, a lack of legislative leadership at federal level
led instead to the courts pushing, via the Massachusetts v EPA case,27 for

25 See eg Joanne Scott and David Trubek, Mind the Gap: Law and New Approaches to
Governance in the European Union (2002) 8 ELJ 1.
26 See eg Harro van Asselt, Emissions Trading: The Enthusiastic Adoption of an Alien
Instrument? in Andrew Jordan and others (eds), Climate Change Policy in the European Union:
Confronting the Dilemmas of Mitigation and Adaptation? (CUP 2010) 125, 135. Joanne Scott
and Gra| nne de Burca would characterise this as a form of developmental hybriditysee
their chapter, New Governance, Law and Constitutionalism in Grainne De Burca and
Joanne Scott (eds), Law and New Governance in the EU and the US (Hart 2006). On the mix of
old and new governance in the EU, see also Charles F Sabel and Jonathan Zeitlin, Learning
from Difference: The New Architecture of Experimentalist Governance in the EU (2008)
14 ELJ 271.
27 See (n 10).
 Its All About Climate Change, Stupid! 367

incorporation of GHG controls within existing environmental laws. There was,

in other words, no reliance on a governance regime unique to climate change:
indeed, because of its incorporation within environmental law, in formal
terms one might struggle to call the US federal regime one involving climate
law at all.
The point is that this question is not a novel one: just like climate law, other
sub-areas of environmental law have confronted this question recently. The
two most obvious issue areas to mention here are GMOs and nanotechnol-
ogy.28 With GMOs, the EU again opted for a specialist regime while the USA lar-
gely felt able to leave governance to pre-existing regulatory regimes. With
nanotechnology, both the EU and USA have decided against the establishment
of a dedicated governance structure, with regulation left instead to existing
chemicals regimes.29
Finally, issues of multi-level governance (MLG) are common to both environ-
mental law and climate law. The literature here requires some initial distin-
guishing however. First, there is what one might call a governance gap30
MLG literature which describes how multiple other (typically lower) levels at
which climate change policy and law can be developed make up, to some
extent, for the lack of effective action at a particular level (whether interna-
tional level or, in the case of the USA, federal level).31 This literature does, so
far, appear somewhat unique to climate law though one might easily apply it
to other areas of environmental law. Next, for regions like the EU which do
not suffer from such a governance gap internally (having an established fed-
eral climate policy and thus with no formal gap to make up for at that level),
there is a more subsidiarity-inspired MLG literature. Thus, in federal systems
such as the EU, one of the key questions confronted by environmental law has
been whether to provide for uniformity across states or to allow for differen-
tiated or flexible integration.32 Lee, for example, points to the GMOs and indus-
trial emissions regimes in the EU as two areas of environmental law where

28 See eg Elen Stokes, Regulating Nanotechnologies: Sizing up the Options (2009) 29 LS 281;
Robert Lee and Elen Stokes, Twenty-first Century Novel: Regulating Nanotechnologies
(2009) 21 JEL 469. For the issues involved in choosing between a specialist and an existing
generic regime, see eg Karinne Ludlow and Peter Binks, Regulating Risk: The Bigger Picture
in Graeme Hodge and others (eds), International Handbook on Regulating Nanotechnologies
(Edward Elgar 2010) 144, 148^50; and Elen Stokes, Nanotechnology and the Products of
Inherited Regulation (2012) 39 JLS 93. One of the principal issues is that existing regulatory
regimes are unlikely to address additional risks about which the public may be concerned.
29 See Markus Widmer and Christoph Meili, Approaching the Nanoregulation Problem in
Chemicals Legislation in the EU and US in Hodge and others (n 28) 238.
30 A term borrowed from Lisa Vanhala and Chris Hilson,Climate Change Litigation: Symposium
Introduction (2013) 35 Law & Policy 141, 143.
31 Jacqueline Peel, Lee Godden and Rodney J Keenan, Climate Change Law in an Era of Multi-
Level Governance (2012) 1 Trans Envtl L 245.
32 See eg Joanne Scott, Flexibility, Proceduralization, and Environmental Governance in the
EU in Grainne de Burca and Joanne Scott (eds), Constitutional Change in the EU (Hart 2000)
259. This of course ties in with the earlier discussion of old and new governance, with uni-
formity associated more with the former and flexibility with the latter.
368 Chris Hilson

the allocation of decision-making authority between levels has been legisla-

tively altered in recent years from what was set out in the original legislation:
just as GMOs have seen proposals for decentralisation of authority to Member
States, so industrial emissions have been subject to attempts at centralisation
and greater uniformity.33 One might add climate change to this list via the EU
ETS: here too, initial ceding of a degree of authority to the Member States via
national allocation plans has seen a revision, in phase three, in favour of a cen-
tralised, EU-wide cap on emissions set by the Commission.34 That said, the EU
ETS is of course only one, albeit a central, component of the EUs overall cli-
mate change programme and if one looks at other elements such as the
burden and effort sharing decisions,35 then one can see a much greater reli-
ance being placed on differentiated or flexible governance.36

3.4 Mitigation and Adaptation

In asking the question of whether climate law is unique or if it shares features
in common with environmental law, it is instructive to consider the issue of
mitigation and adaptation because the explicit policy framing of the climate
change problem into two separate issues in this way does appear to be unique
to climate law. While adaptation is clearly potentially an issue in other
areas of environmental laweg the adaptation by humans and ecosystems to
water or local air pollutionthe focus is on mitigation or prevention of
harm, and an adaptation frame has not taken hold in the same way. The
reason is perhaps an obvious one concerned with the negative acceptance of
harm that such a frame implies: it suggests that we must simply learn to live
with pollution. And indeed this is one reason why many environmental
groups have themselves been somewhat reluctant arrivals at the climate
change adaptation table.
Both mitigation and adaptation clearly share features in common with
environmental law insofar as they both rely on, or have clear implications for,
sub-fields of the latter. While the start of this comment can be said to have
examined the relationship between climate change law and environmental
law at a relatively broad conceptual and normative level, here we are con-
cerned with the relationship between the two on a more descriptive, micro-
level. Thus, in countries like the USA, federal climate law related to mitigation

33 Maria Lee, The Ambiguity of Multi-Level Governance and (De)-harmonisation in EU

Environmental Law (2013) 15 CYELS 3 (forthcoming), draft available at 5http://www.cels.
law.cam.ac.uk/MariaLee%20CELS.pdf4accessed 26 July 2013.
34 See Joanne Scott, The Multi-Level Governance of Climate Change in Paul Craig and Grainne
de Burca (eds), The Evolution of EU Law (OUP 2011) 805.
35 The most recent being Decision No 406/2009/EC, [2009] OJ L140/136.
36 Andrew Jordan and others, Understanding the Paradoxes of Multilevel Governing: Climate
Change Policy in the European Union (2012) 12 Global Envtl Politics 43, 55.
 Its All About Climate Change, Stupid! 369

may interface with standard environmental law on point source and mobile
emissions, with CO2 and other GHGs included as new pollutants within exist-
ing sectoral environmental law regimes on, eg, air pollution. Similarly, GHGs
may need to be incorporated within preventive screening tools such as envir-
onmental impact assessment so that these gases are also properly considered
before permits are granted for new major developments or extensions of exist-
ing ones. Adaptation is more obviously associated with the harmful impacts
of climate change. Here, climate law implicates sub-areas of environmental
law such as, eg, nature conservation or biodiversity law,37 environment-related
human rights law38 and water law.39
Ruhl and Salzman consider the intriguing question of whether climate
adaptation law will (and should), like environmental law or climate law before
it, become a field in its own right.40 In asking this question, they consider
whether climate adaptation law is like horse law (where there is of course no
unified, coherent body of legal doctrine). Their conclusion is that, in substantive
terms, it is like horse law: in essence, it is really covered by the sub-fields of en-
vironmental law considered above such as water law and biodiversity law.
According to Ruhl and Salzman, a normative case for a separate climate adapta-
tion law may however be made on a procedural basis, with adaptation law for-
cing a procedural consideration of climate vulnerability and resilience issues
which are otherwise apt to fall between the gaps of substantive areas of envir-
onmental law and other existing legal fields. Of course, whether this makes cli-
mate law (or at least climate adaptation law) unique is a moot point.41 One
might argue that environmental justice, as a sub-field of environmental law,42
is also procedural in this manner,43 requiring the equity considerations
of siting and other environmental decisions which might impact disproportion-
ately on poor communities to be considered procedurally. Indeed, one might
also claim that climate law is a classic example of a cross-cutting field.
Much like environmental integration is to other policy fields, so climate law is
to environmental law. In this respect, climate law and environmental law are
more similar than different: they both share a procedural quality of needing

37 See eg Arie Trouwborst, International Nature Conservation Law and the Adaptation of
Biodiversity to Climate Change: A Mismatch? (2009) 21 JEL 419; Elisa Morgera, Far Away, So
Close: A Legal Analysis of the Increasing Interactions between the Convention on Biological
Diversity and Climate Change Law (2011) 2 Climate L 85.
38 Margaux J Hall and David C Weiss, Avoiding Adaptation Apartheid: Climate Change
Adaptation and Human Rights Law (2012) 37 Yale J Intl L 309.
39 See eg A Dan Tarlock, How Well Can International Water Allocation Regimes Adapt to Global
Climate Change? (2000) 15 J Land Use & Envtl L 423; see further J B Ruhl, Climate Change
Adaptation and the Structural Transformation of Environmental Law (2010) 40 Env Law
363 and sources cited therein.
40 J B Ruhl and James Salzman, Climate Change Meets the Law of Horse (2013) 62 Duke LJ 975.
41 ibid. Note that Ruhl and Salzman consider this questionthus what is stated here is not a
criticism of their position.
42 cf ibid who appear to regard environmental justice as a field in its own right, 38, 44.
43 ibid 44.
370 Chris Hilson

to have the implicationsfor the environment or the climate respectively

considered procedurally. Environmental law seeks to ensure this via the
environmental integration principle. What Ruhl and Salzman describe
might well be characterised as the climate integration principle.44 And in fact
it applies to mitigation as well as adaptation, because the impacts of policy
action on climate change mitigation should also be considered across policy
fields (both within and outside of environmental law).45

4. Conclusion
This comment has explored the relationship between climate law and environ-
mental law and, in particular, points of similarity and, conversely, uniqueness.
It began by analysing normative aspects and, in doing so, considered crowding
in, crowding out, climate exceptionalism and unexceptionalism. It then pro-
ceeded to examine more descriptive elements, including inter alia super wicked-
ness, instruments and governance, mitigation and adaptation. In exploring
the relationship, the comment has inevitably only scratched the surface of
what is potentially a vast area of study. Important issues that have not been
examined but which also arise include, eg: the relationship between climate
change litigation and environmental litigation (is there anything unique
about climate change litigation?46); the link between climate justice and envir-
onmental justice; the role of law and science in climate law and environmen-
tal law, as well as how notions of risk apply in relation to both; and finally,
whether environmental law principles (such as the precautionary principle,
polluter pays, sustainable development and common but differentiated respon-
sibilities) operate in the same way in climate law and environmental law
or whether climate law requires some adjustment or extension of these, or
indeed attracts or should attract its own set of sui generis principles. All of
these questions are likely to provide fertile ground for future research in
climate law.We clearly have a subject deserving of the name. However, whether
research and practice in the area will be conducted by those self-identifying
(and being identified by others) as climate lawyers (as opposed to environmen-
tal lawyers) remains to be seen. That may be something to revisit in another
25 years.

44 On climate policy integration, see eg Tim Rayner and Andrew Jordan, The European Union:
The Polycentric Climate Policy Leader? (2013) 4 WIREs Climate Change 75, 83; Mans
Nilsson and Lars J Nilsson, Towards Climate Policy Integration in the EU: Evolving
Dilemmas and Opportunities (2005) 5 Climate Policy 363.
45 Duncan French and Tawhida Ahmed, Situating Climate Change in (International) Law: A
Triptych of Competing Narratives in Farrall and others (n 5), describe this as the horizontal
cross-fertilization of climate issues (243).
46 A question asked by Liz Fisher at the workshop Climate Change Litigation, Policy and
Mobilization, British Academy, London, 26^27 April 2012. For the symposium outcome of
this workshop, see (n 30).