Redesigning mineral regimes to strengthen the environmental rule of law: A case study on lithium in brines

Abstract

AbstractThis article aims to contribute to aligning the legal regimes for energy transition minerals with sustainability and justice. The focus of the article is on effectively embedding the human right to a healthy environment into the design of these regimes. The article distinguishes between two models of legal design for mineral extraction and argues that the present predominant model must evolve towards one that bridges the normative and enforcement gaps for exercising public authority. Legal regimes need therefore to be reorganised to protect the integrity and resilience of ecosystems while upholding the right to a healthy environment and interdependent human rights. The task of redesigning regimes in ways that are embedded in a thicker environmental rule of law is emerging through litigation and policy reform. The complexity of this task must be recognised and upscaled for transformative change. This article is based on a case study focusing on lithium found in brines (highly saline waters), and in the legal regime and judicial decisions in Argentina and policy initiatives in Chile.