From 2021 to 2024, research on the ecological transition was conducted as part of a research project co-led byAude-Solveig Epstein,Gilles J. Martin, andMarie-Alice Chardeaux.
This research project has resulted in numerous publications, including the report *The Ecological Transformation of Economic Law*,published in 2025.
This project was made possible thanks to the support of the partners whose logos are shown below.
The starting point for the research was as follows:
Economic law and environmental law have long been portrayed as fields that are completely separate from one another. This portrayal reflects a twofold objective.
On the one hand, a movement to make corporate and market law independent of government policies (whether economic, social, or environmental). This movement has resulted in a series of reforms that, from the 19th century to the present day, have promoted industrialization and economic globalization, notably: the assertion that a business entity was a legal person whose legal regime should be modeled on that of natural persons, which led to the rise of protections for corporate freedom against state attempts to regulate their conduct and limit their power[1] ; the liberalization of capital markets and markets for goods and services, and the widespread adoption of freedom of establishment, which fostered corporate mobility and enabled companies to pressure governments to secure laws favorable to the private interests of their executives; the transfer of the task of regulating markets to independent administrative authorities to ensure that such regulation is politically neutral in the sense that it is removed from the influence of the political priorities of the government in power. By the end of this process, the conviction had taken hold that the primary purpose of the law governing commercial companies and markets was to guarantee free competition with the ultimate goal of fostering economic growth.
On the other hand, there was a movement to establish environmental law as an independent field. Until the 1970s, much of the regulation that is retrospectively described as “environmental” could just as easily have been described as “economic.” The aim was, in fact, to make the risks and damage caused by rampant industrialization socially tolerable, at least as much—if not more—than it was to preserve ecosystems or public health[2]. But starting in the 1960s and 1970s, a new discourse emerged to describe environmental law. This was a lawforthe environment focused on the primary objective of environmental protection, a branch of public law intended to subject businesses to ecological constraints. In practice, the development of environmental law has remained largely imbued with a spirit of compromise with economic interests[3]. Nevertheless, in both public perception and institutional practice, environmental law has largely been recognized as an autonomous branch of law dedicated to a distinctly non-economic objective.
As a result of this process of dual autonomization, the legal system thus appeared to have transposed the distinction—so dear to economists—between the functioning of businesses and markets on the one hand, and the management of the negative externalities arising from their operations on the other. The highly disciplinary nature of the curricula in law schools has fueled mutual ignorance between specialists in economic law and environmental law. This mutual ignorance has led—among other consequences—to the development of economic law standards that are slow to incorporate environmental issues and, conversely, environmental legislation that is out of touch with the reality of the categories and transactions permitted under economic law[4].
The distinction between economic law and environmental law is becoming less clear, however. Since the 1980s, the development of “economic instruments” in environmental law (environmental taxation, markets for environmental goods) has helped to bring the two fields into closer contact. This phenomenon has fostered the growth of market segments specializing in the provision of “green” products, such as investment products specifically designed to promote the ecological transition, includinggreen bonds. This development has not, however, fundamentally transformed the substance of economic law. As recently as 2016, leading legal scholars observed that business law remained among the legal fields least receptive to environmental integration.[5] In recent years, however, the situation appears to be shifting, particularly in the context of a post-COVID economic recovery that is hoped to be “green.” There is increasing discussion of integrating environmental objectives into the core of the norms that constitute the legal infrastructure of the contemporary economy (property law and contract law[6], free trade agreements[7], investment treaties, prudential rules[8], finance laws[9], etc.), not only as exceptions that may justify deviations from proclaimed economic rights and freedoms (property rights, freedom of enterprise, free movement of goods, services, and capital) but also increasingly as the very objectives being pursued. The mandate of economic regulators could evolve accordingly[10]. This trend leads some analysts to predict that economic law is entering a new era: following concentration, globalization, and digitization,“a fourth era is emerging through the greening movement”[11]
In this context, it is crucial to further the discussion on the growing integration of environmental issues into economic law. What challenges does this integration address? How does it take place? What are the foreseeable consequences? How should it be developed further?
Aude-Solveig Epstein (2021)
[1]See, e.g., P. Ireland, “Efficiency or Power? The Rise of the Shareholder-oriented Joint Stock Corporation,”Indiana Journal of Global Legal Studies, 2018, vol. 25, no. 1, pp. 291–330; J.-P. Robé, A. Lyon-Caen, and S. Vernac (eds.),Multinationals and the Constitutionalization of the World Power System, Routledge, 2016.
[2]See, in particular, F. Jarrige and T. Leroux,*The Contamination of the World: A History of Pollution in the Industrial Age*, Seuil, 2017.
[3]A. Vauchez, “Climate Emergency: ‘The State Is an Archipelago of Compromises,’”Le Le Monde.fr, Sept. 11, 2020.
[4]G. J. Martin, “The Contributions of Economic Law to Environmental Law: Leverage, Limitations, and Opportunities,”Energy – Environment – Infrastructure, May 2018, No. 5, Special Issue 3, p. 18 ff.
[5]M. Prieur et al.,Environmental Law, Précis Dalloz,7thed., 2016, no. 8, p. 8.
[6]Most recently, see the symposium held at the University of Bordeaux on September 24, 2020, on “The Contribution of Private Law to Environmental Protection.”
[7]J. Bouissou, “France Opposes the Agreement Between the European Union and Mercosur,” LeMonde.fr, Sept. 19, 2020.
[8]“Greening the Financial System: The New Frontier,”Financial Stability Review, 2019, vol. 23, Banque de France.
[9]A.-L. Jumet’s economic commentary, “Covid-19: Should Business Aid Be Tied to Environmental Commitments?”, France Culture, April 20, 2020.
[10]J. Ansidei and B. de Juvigny, “The Role of the Regulator and the Challenges Ahead; Commentary on Law No. 2019-486 of May 22, 2019, on Business Growth and Transformation,”Revue Banque, June 1, 2019, No. 833, pp. 10–12; Competition Authority, AMF, ARCEP, ART, CNIL, CRE, CSA, HADOPI,Paris Agreement and the Climate Emergency: Regulatory Challenges, May 2020. Article L. 621-1 of the Monetary and Financial Code has already been amended to specify that“the AMF shall ensure the quality of the information provided by management companies for the management of collective investment schemes regarding their investment strategy and their management of risks related to the effects of climate change.”
[11]J.-B. Racine, “Introduction,” in J.-B. Racine (ed.),Economic Law in the21stCentury: Concepts and Issues, LGDJ, 2020.