The extraterritorial reach of environmental law: legitimacy concerns and the role of domestic courts in controlling transnational regulatory power

While there are examples of extraterritoriality in multilateral environmental agreements, these are not as prevalent or controversial as the unilateral extension of domestic regulation to conduct beyond the territory of the regulating jurisdiction. This chapter explores legal requirements on the permissibility and legitimacy of assertions of extraterritoriality in the environmental field as determined by courts in the EU and the US, two of the largest jurisdictional powers in the world, which have engaged in extraterritorial environmental regulation to different degrees, and whose judiciaries play a pivotal role in determining the scope of extraterritoriality. The use of different normative and jurisdictional justifications in extending the territorial scope of domestic environmental measures ultimately determines the scope and legitimacy of extraterritoriality in the environmental field. With a focus on judicially determined parameters for extraterritoriality, the chapter also demonstrates how ‘domestic’ courts increasingly emerge as transnational actors that contribute to global environmental governance.