The scandal involving the Volkswagen group broke out last Fall, at the dawn of the very delicate UN Conference on Climate Change (COP21) held in Paris, and the posting of an unofficial version of the Comprehensive Economic and Trade Agreement (CETA). This so, just when a leaked version Transatlantic Trade and Investment Partnership (TTIP) ran through the veins of the Internet and the Trans-Pacific Partnership (TPP) was just about to be signed in New Zealand, fostering market integration by pushing further national treatment and mutual recognition, against the backdrop -albeit one small step at a time- of an increasing demand for environmental protection through the setting, among other regulation tools, of emission thresholds.

Given that cars have become icons for flexibility, individuality, and freedom, it comes as no surprise that the passenger car fleet in almost all of the EU Member States is constantly growing. In 2010 there were about 239 million heavy-duty vehicles and 35 million light-duty vehicles in the then 27 Member States, more than a quarter of the cars and trucks on the road worldwide. It is expected that this number will grow by 31%by 2030. Not only has the number of vehicles grown constantly over recent decades, but the distance travelled by each has increased as well. Cars, and the industries producing them, do however have significant impacts on the environment ranging from smog to climate change.

Like some other crises and scandals that periodically occur in the business community, the Volkswagen (“VW”) scandal once again highlights the devastating consequences of corporate misconduct, once publicly disclosed, and the media storm that generally follows the discovery of such significant misbehaviour by a major corporation. Since the crisis broke in September 2015, the media have relayed endless details about the substantial negative impacts on VW, on various stakeholder groups such as employees, directors, investors, suppliers and consumers, and on the automobile industry as a whole.1 The multiple and negative repercussions at the economic, organizational and legal levels have quickly become apparent, in particular in the form of resignations, changes in VW's senior management, layoffs, a hiring freeze, the end to the marketing of diesel-engined vehicles, vehicle recalls, a decline in car sales, a drop in market capitalization, and the launching of internal investigations by VW and external investigations by the public authorities.

In several ways, the revelations that Volkswagen used software to cheat on vehicle emissions tests echo common threads of greenwashing cases against car manufacturers. However, in one significant respect, the Volkswagen scandal is much more than just another example of greenwashing. That is, the German automaker's use of software to deceive brings a novel technological aspect to greenwashing. This article discusses the Volkswagen scandal in the context of automobile greenwashing cases and highlights this newhigh-tech greenwashing.

This mini-symposium of the European Journal of Risk Regulation focuses on the Paris Agreement on Climate Change, which was concluded at COP-21 in December 2015. It has been called the ‘world's greatest diplomatic success’ and a ‘historic achievement,’ but also an ‘epic failure’ and even a ‘fraud’ and ‘worthless words.’ Disappointed with the Paris Agreement, a group of eleven climate scientists signed a declaration stating that it suffers from “deadly flaws” and gives “false hope;” they argue that the time for “wishful thinking and blind optimism” is over, and “the full spectrum of geo engineering” should be considered. The broad disagreement over the outcome of COP-21 in Paris (in particular, over its binding effect) illustrates not only the diverging expectations of interest groups, but also the antagonisms that arise in all areas of policy-making between the dogmatic and the pragmatic, the idealistic and the realistic, and the internationalists and nationalists.

Recognising the importance of science to climate policies, the Paris Agreement on Climate Change (the ‘Paris Agreement’ or ‘Agreement’) stipulates that ‘an effective and progressive response to the urgent threat of climate change’ should be based on ‘the best available scientific knowledge.’ The terms ‘best available scientific knowledge’ or ‘best available science’ are used in several places throughout the agreement.

This brief opinion piece draws upon behavioural and cognitive research to argue that the Paris Agreement's goal of keeping global temperature change below 2 degrees Celsius sets a psychologically powerful baseline against which future policy failures can be measured. When international law successfully triggers perception of a baseline, it can lead decision makers to perceive deviations from that baseline as “losses.” This implicates loss aversion, which provides an additional motivation to achieve international norms. The psychological impacts of this new status quo may end up being more powerful and more durable than either the unusual structure of the document or the domestic implementation questions that have already attracted so much scholarly debate.

In the coming few decades, the world is facing three related problems.

First, agriculture contributes to climate change to a considerable extent. In its Fifth Assessment Report, the IPCC's Working Group III concludes that the AFOLU sector (agriculture, forestry and other land use) is responsible for just under a quarter (∼10 – 12 GtCO2eq/yr) of anthropogenic GHG emissions. Usually, a distinction is made between non-CO2 emissions, in particular methane (NH4) emitted by livestock and rice cultivation, and nitrous oxide (N2O) caused by the use of synthetic fertilizers and the application of manure on soils and pasture. Methane and Nitrous oxide have 25 times and 300 times stronger impact on the climate than CO2 respectively. CO2 emissions from agriculture are mainly caused by deforestation and peatland drainage. Emissions from agriculture have been rising on a yearly basis since 1990, although with important regional differences (they went down in Europe and up in Asia).

This article explores the prospects for the EU to develop a coherent policy regarding climate engineering (CE). To this end, we explore the most significant legal parameters derived from EU law from which such a future EU policy would have to arise. Obviously, in view of the principle of conferral, it must first be established if the EU enjoys competences to initiate a discrete policy on climate engineering. The mere fact that the EU presides over a plethora of climate mitigation and adaptation instruments is not sufficient to conclude that it likewise has competence to initiate a policy of intentional environmental change. Rather, precisely because climate engineering is such a different response to climate change than anything undertaken before, we must establish whether that difference is of a nature so as to rule out a future EU policy on climate engineering.

Climate engineering in general and solar radiation management (SRM) in particular raise profound and complex political, legal, social, and ethical questions that go well beyond technical feasibility issues. We consider three such questions. First, can existing EU decision-making processes accommodate sufficient public engagement to ensure legitimate decisions on SRM? Second, does politics influence the choice of legislative procedure for SRM regulation? Third, does the choice of legislative procedure influence the likelihood of SRM implementation? Three main conclusions emerge from our analysis. First, existing EU decision-making processes can – given certain conditions – accommodate considerable public engagement and hence ensure legitimate decisions on SRM. Second, politics matters; indeed, the EU's choice of legislative procedure concerning SRM may well become subject to political negotiations. Finally, the choice of legislative procedure may substantially influence the likelihood of SRM implementation.

This paper suggests how the regulation of Solar RadiationManagement (SRM) field research in Europe could be designed to maximise the possibility of securing legitimacy. It argues that legitimacy is maximised when regulatory frameworks are legal, and also responsive, flexible, deliberative and inclusive. By adopting an ‘incorporated’ approach to assessing the risk of Solar Radiation Management (SRM) field research, the EU can import elements of ‘directly deliberative polyarchy’ into its otherwise orthodox constitutional regulatory approach thereby maximising legitimacy. The argument is new in so far as it juxtaposes two conceptions of procedural legitimacy – one institutional and the other functional – in the context of significant scientific uncertainty in the technocratic regulatory paradigm of the EU. The significance of the work is that it draws on these conceptions of legitimacy to advance a pragmatic model of institutional design which comprises procedures that maximise legitimacy with minimal disruption to the EU's institutional balance of powers.

In an article that made waves when it was first published in 1996, judge Easterbrook scorned the idea that the technological reality of cyberspace justified talk about or a need for ‘Cyber Law’. Just as there is no need for a ‘Law of the Horse’ merely because horses give rise to legal claims, he argued, conventional legal principles and reasoning are sufficiently accommodating to absorb new legal challenges that arise in the wake of cyberspace. We may likewise doubt the need for a ‘Law of the Mammoth’, even though technologies emerge that harbour the prospect of bringing back the woolly mammoth from extinction, reversing climate change, and creating new life forms. Cyber Law is now firmly established, of course, and Easterbrook also appears to have lost the academic debate from the likes of Lawrence Lessig. That fact notwithstanding, the onus to show that the time has come for a Law of the Mammoth clearly is on those staking the claim.

Directive (EU) 2015/412 allows Member States to restrict the cultivation of genetically modified seed or propagating material, although their placing on the market has been authorized. This so-called opt-out is meant to resolve the current Member States’ conflict about gene technology by facilitating differences of states concerning cultivation regulations. The concept has at the same time the potential to pioneer a general reorientation of European and even global principles of free trade. Where as trade restrictions on grounds of health and environmental protection could thus far only be justified on a strict scientific basis, a variety of risk perceptions and evaluations are now made acceptable. The article explores what grounds may justify cultivation restrictions beyond those identified in a concrete environmental risk assessment. Two categories are suggested: general environmental concerns weighing systemic effects and uncertainty, and trans-environmental concerns such as the use-value of genetically modified plants, the avoidance of costs resulting from policies of coexistence with conventional plants, the halting of agricultural industrialisation, and ethical considerations. It is further examined if cultivation restrictions based on such grounds are compatible with the EU rules of free movement of goods and relevant WTO agreements. The pertinent report of a WTO-Panel on genetically modified plants is scrutinized for this purpose and a dissenting interpretation developed.

The problematic application of the precautionary principle by the European Courts has led Janssen and Van Asselt to identify patterns and inconsistencies in the Courts’ use of the principle. As a consequence, the principle runs the risk of becoming an empty tool. This paper examines new case law to determine whether these patterns have continued in the rulings of the Courts and discusses what can be done to stop the degradation of the precautionary principle.

In recent years the concepts of ‘nudge’ and ‘libertarian paternalism’ have become popular theoretical as well as practical concepts inside as well as outside academia. But in spite of the widespread interest, confusion reigns as to what exactly is to be regarded as a nudge and how the underlying approach to behaviour change relates to libertarian paternalism. This article sets out to improve the clarity and value of the definition of nudge by reconciling it with its theoretical foundations in behavioural economics. In doing so it not only explicates the relationship between nudges and libertarian paternalism, but also clarifies how nudges relate to incentives and information, and may even be consistent with the removal of certain types of choices. In the end we are left with a revised definition of the concept of nudge that allows for consistently categorising behaviour change interventions as such and that places them relative to libertarian paternalism.

Causal inference lies at the heart of many legal questions. Yet in the context of complicated disease litigation, in particular, the causal inquiry is beset with difficulties due to gaps in scientific knowledge concerning the precise biological processes underlying such diseases. Civil courts across the globe, faced with increased litigation on such matters, struggle to adhere to their judicial fact-finding and decision-making role in the face of such scientific uncertainty. An important difficulty in drawing evidentially sound causal inferences is the binary format of the traditional legal test for factual causation, being the ‘but for’ test, which is based on the condicio-sine-qua-non principle. To the question ‘would the damage have occurred in the absence of the defendant's wrongful behaviour’ the ‘but for’ test requires a simple yes or no answer. This is increasingly deemed unsatisfactory in cases in which, given the state of science, true causation cannot possibly be determined with certainty.

In April 2015, the European Commission (hereinafter, Commission) adopted a package on the authorisation of genetically modified organisms (hereinafter, GMOs) as food and feed in the EU. The package, which derives from the Political Guidelines presented to the European Parliament in July 2014 on the basis of which the current Commission was elected, consists of a Communication (titled Reviewing the decision-making process on genetically modified organisms) and a legislative draft (i.e., Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 1829/2003 as regards the possibility for the Member States to restrict or prohibit the use of genetically modified food and feed on their territory, and hereinafter, the Proposal).

On 20 July 2016, a new legal framework comes into effect for the so-called “food for specific groups”, established by Regulation (EU) No. 609/2013 on food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control (hereinafter, FSG Regulation). The FSG Regulation repeals Directive 2009/39/EC on foodstuffs intended for particular nutritional uses (hereinafter, the PARNUTS Directive). Food intended for sportspeople placed on the market will be affected by the repeal of the PARNUTS Directive as such food has not been included in the FSG Regulation's scope and will have to comply with general EU food law from 20 July 2016. This has a major impact on compositional requirements, product names and claims made on such food. Inter alia, the possibility to make so-called “suitability statements” on food intended for sportspeople, which currently does give manufacturers some margin to make statements that some consider as something similar to claims, is likely to be controversial without the PARNUTS Directive.