Research
My research publications include a wide range of peer-reviewed journal articles and three books, the latest one being the Routledge Handbook on the Green New Deal. You can learn more about this book, as well as other publications, by browsing the links below. If you have questions about any of the work that appears on this site, please feel free to contact me.
Books
NEW! Routledge Handbook on the Green New Deal
In recent years, the Green New Deal has moved from relative obscurity to front and centre of policy discussions and public debates about how to respond to the climate crisis. It has been credited with radically changing the nature of the conversation on climate change and with re-energizing the environmental movement at a critical time. All Green New Deal proposals share an emphasis on the need for governments (rather than markets) to lead the energy transition. However, they differ in other respects. This Handbook analyses the fundamentals underlying all Green New Deals as well as exploring national and regional variations.
It is divided into three parts. The first part examines the political economy of the Green New Deal focussing not just on how proposals will be costed but also on opportunities for a fundamental transformation of both national economies and the global economic system. The second part explores issues of justice, which are central to many Green New Deal proposals, including Indigenous rights, racial and gender equity, and justice for the Global South. In the third part, authors detail case studies of Green New Deal proposals and plans at the local, national and regional level.
This book will be an invaluable research and reference volume for students and scholars in economics, politics, sociology, geography, and environmental studies. It should also be of interest to those actively involved in climate and environmental policymaking.
The Expropriation of Environmental Governance
Are legal agreements designed to protect the interests of foreign investors compromising the ability of governments to protect the environment?
Recent years have seen an explosive increase in investor-state disputes resolved in international arbitration. This is significant not only in terms of the number of disputes that have arisen and the number of states that have been involved, but also in terms of the novel types of dispute that have emerged. Traditionally, investor-state disputes resulted from straightforward incidences of nationalisation or breach of contract. In contrast, modern disputes frequently revolve around government measures taken to further public policy goals, such as the protection of the environment. This book explores the outcomes of several investor-state disputes over environmental policy. In addition to examining the pleadings of parties and decisions of arbitral tribunals in disputes that have been resolved in arbitration, the influence that investment arbitration has had in negotiated outcomes to conflicts is also explored.
Green Keynesianism & the Global Financial Crisis
It is widely accepted that limiting climate change to 2°C will require substantial and sustained investments in low-carbon technologies and infrastructure. However, the dominance of market fundamentalism in economic thinking for the past three decades has meant that governments have generally viewed large spending programs as politically undesirable. In this context, the Global Financial Crisis (GFC) represented a huge opportunity for proponents of public investment in environmental projects or “Green Keynesianism”.
This book examines the experience of Australia, Canada, Japan, Korea, and the United States with Green Keynesian stimulus programs in the wake of the GFC. Unfortunately, on the whole, the cases do not provide much optimism for proponents of Green Keynesianism. Much less funding than was originally allocated to green programs was actually spent in areas that would produce an environmental benefit. Furthermore, a number of projects had negligible or even detrimental environmental outcomes. While the book also documents several success stories, the research indicates overall that more careful consideration of the design of green stimulus programs is needed. In addition to concrete policy advice, the book provides a broader vision for how governments could use Keynesian policies to work toward creating an “ecological state”.
Journal Articles, Book Chapters & Reports
K. Tienhaara, R. Thrasher, B.A. Simmons, and K.P. Gallagher, 2022, “Investor-state dispute settlement: obstructing a just energy transition”, Climate Policy.
Available at: https://doi.org/10.1080/14693062.2022.2153102
ABSTRACT: Governments that revoke licenses and permits or take other measures to restrict the development of oil and gas in their territory will face claims from investors for compensation. When investors are foreign, they can seek compensation for ‘lost future profits’ in investor-state dispute settlement (ISDS), even if they had not commenced production. ISDS cases are likely to obstruct a just transition by chilling supply-side climate measures and diverting public funds away from climate change mitigation and adaptation efforts. Using a dataset of ISDS-protected assets in the upstream oil and gas sector, we demonstrate that the global distribution of legal and financial risks is highly unjust. More than two thirds of the net-present value of 1.5°C-incompatible and treaty-protected oil and gas assets are found in low- and middle-income countries, including those highly vulnerable to climate change. The Energy Charter Treaty (ECT) is the most significant single treaty obstructing the transition. While protection of fossil fuels in some countries may soon be phased-out of this treaty, the protection of the assets identified in our study will remain for at least ten more years. To limit ISDS risk, states should: (1) immediately cease the issuance of new permits/leases for oil and gas developments; (2) terminate investment treaties (including the ECT) and (3) develop binding rules that cap the amount of compensation that can be awarded to investors.
K. Tienhaara, R. Thrasher, B.A. Simmons, and K.P. Gallagher, 2022, “Investor-state disputes threaten the global green energy transition”, Science, 376(6594): 701-703.
Available at: https://www.science.org/doi/10.1126/science.abo4637
ABSTRACT: To limit global warming to below 1.5°C, governments will have to simultaneously curb demand for fossil fuels and limit supply (1). However, efforts to limit supply will affect asset holders, particularly in the upstream (exploration and production) and midstream (transportation and storage) portions of the supply chain. Demands for compensation will ensue, and when the companies involved are foreign, legal claims may be brought to international arbitration in a process known as investor-state dispute settlement (ISDS) (see the first figure). The Intergovernmental Panel on Climate Change (IPCC) has recently acknowledged that ISDS cases could lead to states refraining from, or delaying, measures to phase out fossil fuels (2). Here, we illustrate legal and financial risks associated with limiting oil and gas production and argue that governments should take steps to prevent fossil fuel investors from accessing ISDS.
J. Calvert and K. Tienhaara, 2022, “Beyond ‘Once BITten, Twice Shy’: defending the legitimacy of investor-state dispute settlement in Peru and Australia” Review of International Political Economy.
Available at: https://doi.org/10.1080/09692290.2022.2134172
Investment protection is a contentious issue in trade and investment negotiations due in large part to controversy surrounding investor-state dispute settlement (ISDS). Governments have taken a range of positions on ISDS—from opposing moderate reforms to the system to the outright rejection of it. Extant research suggests that countries which experience costly investor claims are more likely to be circumspect about it. Case studies of Australia and Peru demonstrate that other factors must be considered. Both countries experienced investor claims but governments continued to act as ‘pragmatic proponents’ of the system. We show how interest groups and experts shape government preferences by reinforcing the legitimacy of ISDS in the face of contestation. In both cases, domestic actors framed ISDS as low risk; promoting good governance through regulatory chill; and protecting public interests through the promotion of business, which outweighed the costs of participation. Despite the lack of empirical evidence supporting these claims, they were persuasive because interest groups played on embedded ideas about the merits of market-led development and the economic utility of the mechanism. However, we predict that the influence of pro-ISDS actors will vary over time depending on their access to bureaucratic and political decision-making centres.
Olivier Bois von Kursk, Greg Muttitt, Angela Picciariello, Lucile Dufour, Thijs Van de Graaf, Andreas Goldthau, Diala Hawila, Mohamed Adow, Kyla Tienhaara, Frederic Hans, Thomas Day, Silke Mooldijk, Mara Abbot, Andrew Logan, 2022, “Navigating Energy Transitions: Mapping the road to 1.5°C”, International Institute for Sustainable Development.
Available at: https://www.iisd.org/publications/report/navigating-energy-transitions
This report highlights the implications of 1.5°C scenarios for the phase-out of fossil fuels and the scale-up to renewables, barriers to transitions and solutions to such challenges, and tools for governments and financial institutions to navigate the current energy crisis while maintaining climate ambition. It also looks at the implications of the war in Ukraine for energy systems and explores whether Europe can meet its gas demand without the Russian supply.
K. Tienhaara, 2022, “Corporations: Business and Industrial Influence” in P. Harris (ed.) The Routledge Handbook of Global Environmental Politics (Routledge, 2nd ed) (substantial update of chapter written for the 1st edition), pp. 175-186.
Available at: https://www.routledge.com/Routledge-Handbook-of-Global-Environmental-Politics/Harris/p/book/9781032145808
This handbook brings together leading international academic experts to provide a comprehensive and authoritative survey of global environmental politics.
K. Tienhaara and J. Walker, 2021, “Fossil Capital, ‘Unquantifiable Risk’ and Neoliberal Nationalizations: The case of the Trans Mountain Pipeline in Canada”, Geoforum, 124: 120-131.
ABSTRACT: Nationalization was once anathema to neoliberals and the hydrocarbon-based corporations long closely integrated with the neoliberal project. Indeed, the origins of neoliberal advocacy for global economic liberalisation can be traced, at least in part, to the resistance of oil multinationals to nationalist governments attempting to assert ownership and control over natural resources. It is therefore striking that calls are now mounting from this quarter for the nationalization of fossil fuel infrastructures, to keep them operating as climate policy, loss of public legitimacy and changing market conditions increasingly make investments in them unprofitable, uninsurable, or uncompetitive. The Canadian government’s purchase of the Trans Mountain Pipeline exemplifies what we term a ‘neoliberal nationalization’. Neoliberal pundits and oil industry figures created the perception of both an immediate economic crisis and a longer-term crisis of investor confidence in Canada; these ‘crises’ were used to justify the nationalization. Critically, the government acquisition of the pipeline was framed as a temporary measure of last resort. The intention of a neoliberal nationalization is to protect corporate actors from the effects of their own irresponsible business practises, maintaining ‘business as usual’ by pre-emptively socializing the foreseeable risks of rapid capital asset devaluation. In the case of hydrocarbon infrastructures like Trans Mountain, state authority is called upon to ensure the continued profitability of private fossil energy extraction, even as global financial markets accelerate disinvestment from the sector in response to evidence that most fossil fuels must remain in the ground to prevent catastrophic climate change.
Kyla Tienhaara and Lorenzo Cotula, 2020, “Raising the cost of climate action? Investor-state dispute settlement and compensation for stranded fossil fuel assets”, International Institute for Environment and Development (IIED), London.
Available at: https://pubs.iied.org/17660iied
SUMMARY: Global efforts to combat climate change will require a transition to renewable energy and government action to reduce reliance on fossil fuels such as coal, oil and gas. If followed through, such action will create stranded assets – in other words, economic assets affected by premature write-downs or downward revaluations, or converted to liabilities.
To protect their assets from measures to phase out fossil fuels, foreign investors may resort to investor-state dispute settlement (ISDS), which allows them to bring disputes to an international tribunal and sue states over conduct they believe breaches investment protection rules, and to obtain compensation if the claim is successful. Even in the absence of legal proceedings, the explicit or implicit threat of recourse to ISDS can provide leverage to the fossil fuel industry and strengthen its position in negotiations with governments over possible compensation. As a result, more public funds may be spent on compensating the fossil fuel sector than would otherwise be the case, making it more costly for states to take energy transition measures.
This report develops a framework for assessing the extent to which energy transition measures could result in ISDS claims; explores the extent to which treaties with ISDS protect foreign-owned coal plants worldwide; and provides policy recommendations to help states preserve their ability to facilitate the low-carbon energy transition.
“Does the Green Economy Need Investory-State Dispute Settlement?” in K. Miles (ed) Research Handbook on Environment and Investment Law (Cheltenham: Edward Elgar, 2019), 292-311.
DOI: https://doi.org/10.4337/9781784714635.00018
ABSTRACT: In the past decade, the ‘green economy’ has become an increasingly important, albeit contested, concept in international policy discussions. While investment law has not figured prominently in these discussions, a number of commentators have made the claim that investor-state dispute settlement (ISDS) could help facilitate the transition to a green economy by supporting renewable energy investment. In this chapter, the theoretical basis for such a claim is evaluated and several ISDS cases concerning investments in wind energy (Canada) and solar power (Spain) are discussed. The chapter concludes that even if one adopts a very narrow conception of a green economy, the case for ISDS to play a positive role in its development is weak. There is little evidence to suggest a constructive role for ISDS in theory, and in practice the need for wind and solar investments to receive special protection from investment treaties is limited and declining.
“Risky Business? The Energy Charter Treaty, Renewable Energy, and Investor-State Disputes” (with Christian Downie) Global Governance (2018) 24(3): 451-471.
ABSTRACT: Global energy governance has received increased attention from scholars and policymakers in recent years. Much of the discussion has focused on the inadequacy of the current institutional architecture, particularly in light of the urgent need to decarbonize energy systems. However, little attention has been given to the capacity of global institutions to promote investment in renewable energy. This article considers claims by proponents of the Energy Charter Treaty, the most developed trade and investment treaty in the global energy architecture, that it can play an important role in this regard. Specifically, it examines the ECT’s investor-state dispute settlement mechanism. Drawing on scholarship in global governance, law, and economics and an analysis of recent investor-state disputes, the article argues that there are problems with the assumptions underlying the claims of the ECT’s proponents. Critically, there is still a lack of evidence that the ECT has a positive impact on flows of investment in any sector, including the renewable energy sector. There is also a risk that ISDS could be used by the fossil fuel industry to impede a clean energy transition. States should approach accession to the ECT with caution and consider other mechanisms to reduce risk for renewable energy investors.
“Regulatory Chill in a Warming World: The Threat to Climate Policy Posed by Investor-State Dispute Settlement”, Transnational Environmental Law (2018) 7(2): 229-250.
ABSTRACT: The system of investor-state dispute settlement (ISDS) found in over 3,000 bilateral investment treaties and numerous regional trade agreements has been criticized for interfering with the rights of sovereign states to regulate investment in the public interest, for example, to protect the environment and public health. This article argues that while much of the public debate around ISDS has focused on a small number of cases that have arisen over the regulation of tobacco packaging, there is a far greater threat posed by the potential use of ISDS by the fossil fuel industry to stall action on climate change. It is hypothesized that fossil fuel corporations will emulate a tactic employed by the tobacco industry – that of using ISDS to induce cross-border regulatory chill: the delay in policy uptake in jurisdictions outside the jurisdiction in which the ISDS claim is brought. Importantly, fossil fuel corporations do not have to win any ISDS cases for this strategy to be effective; they only have to be willing to launch them. The article concludes with three options to reform trade and investment agreements to better align them with climate change mitigation efforts: (i) exclude ISDS provisions; (ii) prohibit fossil fuel industries from accessing ISDS; or (iii) carve out all government measures taken in pursuit of international obligations (for example, under the Paris Agreement on climate change) from challenge under ISDS.
“Regulating Foreign Investment: Methanex Revisited” (with Todd Tucker) in C.L. Lim (ed) Alternative Visions in the International Law on Foreign Investment: Essays in Honour of M. Sornarajah (Cambridge University Press, 2016), 255-288.
ABSTRACT: This book is about the forces that are reshaping the international law on foreign investment today. It begins by explaining the liberal origins of contemporary investment treaties before addressing a current backlash against these treaties and the device of investment arbitration. The book describes a long-standing legal-intellectual resistance to a neo-liberal global economic agenda, and how tribunals have interpreted various treaty standards instead. It introduces our reader to the changes now taking place in the design of a range of familiar treaty clauses, and it describes how some of these changes are now driven not only by developing and emerging economies but also by the capital-exporting nations. Finally, it explores the life, career and writings of Muthucumaraswamy Sornarajah, a scholar whose work has been dedicated to the realisation of many of these changes, and his views about the hold global capital has over legal practice.