Pub Date : 2023-08-07DOI: 10.1163/18786561-bja10040
A. Mills
The National Planning Policy Framework (nppf) is the primary expression of central government planning policy for England. Given the importance of the planning system for a transition to a more sustainable future, including seeking to reduce and avoid greenhouse gas emissions, the nppf is a highly significant document. The nppf refers to the ideas of sustainable development and intergenerational equity, important in international environmental law. However, intergenerational equity has scarcely featured in the many legal challenges regarding the interpretation of the nppf. Having considered the extent to which the nppf achieves the aspirations set out in the instruments to which it refers, this article suggests potential changes to policy so as to provide greater support to the aim of reducing greenhouse gas emissions.
{"title":"Meeting Lofty Aspirations? English National Planning Policy, International Law, and Climate Change","authors":"A. Mills","doi":"10.1163/18786561-bja10040","DOIUrl":"https://doi.org/10.1163/18786561-bja10040","url":null,"abstract":"\u0000The National Planning Policy Framework (nppf) is the primary expression of central government planning policy for England. Given the importance of the planning system for a transition to a more sustainable future, including seeking to reduce and avoid greenhouse gas emissions, the nppf is a highly significant document. The nppf refers to the ideas of sustainable development and intergenerational equity, important in international environmental law. However, intergenerational equity has scarcely featured in the many legal challenges regarding the interpretation of the nppf. Having considered the extent to which the nppf achieves the aspirations set out in the instruments to which it refers, this article suggests potential changes to policy so as to provide greater support to the aim of reducing greenhouse gas emissions.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-08-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44704086","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-07-06DOI: 10.1163/18786561-bja10039
Adebayo Majekolagbe, S. Seck, David V. Wright
In this tribute to our friend and colleague, Dr Meinhard Doelle, we bring together three strands of work that we each undertook in collaboration with Meinhard: social cost of carbon, climate change loss and damage, and climate impact assessment. We first introduce social cost of carbon estimates as a form of carbon valuation used in decision-making processes in Canada and the United States. We then introduce legal approaches to climate change loss and damage and related challenges of economic and non-economic valuation. After contemplating the potential for social cost of carbon to contribute to valuation of loss and damage, and vice versa, we examine the integration of climate change in impact assessment law. Ultimately, we tentatively consider whether application of the social cost of carbon for the valuation of loss and damage in impact assessment processes might help to centre justice concerns. In conclusion, we pose questions for future research.
{"title":"Exploring the Application of the Social Cost of Carbon in Loss-and-Damage and Impact Assessment","authors":"Adebayo Majekolagbe, S. Seck, David V. Wright","doi":"10.1163/18786561-bja10039","DOIUrl":"https://doi.org/10.1163/18786561-bja10039","url":null,"abstract":"\u0000In this tribute to our friend and colleague, Dr Meinhard Doelle, we bring together three strands of work that we each undertook in collaboration with Meinhard: social cost of carbon, climate change loss and damage, and climate impact assessment. We first introduce social cost of carbon estimates as a form of carbon valuation used in decision-making processes in Canada and the United States. We then introduce legal approaches to climate change loss and damage and related challenges of economic and non-economic valuation. After contemplating the potential for social cost of carbon to contribute to valuation of loss and damage, and vice versa, we examine the integration of climate change in impact assessment law. Ultimately, we tentatively consider whether application of the social cost of carbon for the valuation of loss and damage in impact assessment processes might help to centre justice concerns. In conclusion, we pose questions for future research.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-07-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44726876","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-23DOI: 10.1163/18786561-bja10037
B. Richardson, Sarah Castles-Lynch
The ‘lawscape’ (landscape) of public participation in environmental decision-making in Australia is evolving as climate change has become society’s dominant environmental concern. The traditional modes for citizens to express their concerns through administrative and legislative processes are losing their legitimacy and efficacy. The growth of civil disobedience by climate protesters is a response to this deficit. Rather than viewing such dissent as purely a phenomenon ‘outside’ the legal system, in defiance of the law, climate protest can also plausibly be understood as a shift in the mode of public participation within the legal system as discussions about climate science and action extend to new forums, especially courtrooms hearing criminal prosecutions against climate activists.
{"title":"Trying to Express Climate Concerns through Environmental Law? The Changing Lawscape of Public Participation","authors":"B. Richardson, Sarah Castles-Lynch","doi":"10.1163/18786561-bja10037","DOIUrl":"https://doi.org/10.1163/18786561-bja10037","url":null,"abstract":"\u0000The ‘lawscape’ (landscape) of public participation in environmental decision-making in Australia is evolving as climate change has become society’s dominant environmental concern. The traditional modes for citizens to express their concerns through administrative and legislative processes are losing their legitimacy and efficacy. The growth of civil disobedience by climate protesters is a response to this deficit. Rather than viewing such dissent as purely a phenomenon ‘outside’ the legal system, in defiance of the law, climate protest can also plausibly be understood as a shift in the mode of public participation within the legal system as discussions about climate science and action extend to new forums, especially courtrooms hearing criminal prosecutions against climate activists.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49097453","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-06-23DOI: 10.1163/18786561-bja10038
Felicity Deane, Callum Brockett
For the past two decades scholars and policymakers have argued that carbon border adjustments (cbas) may remove the risk of carbon leakage. This article examines two of the legal and moral issues relevant to cbas to better understand how cbas may be implemented to support climate change mitigation goals. World Trade Organization compliance represents a conundrum for policymakers. Although a cba may prove meaningful for greenhouse gas emission reduction, it could also lead to trade tensions if viewed as a disguised restriction on international trade. The impact of cbas on Global South nations also presents a concern in terms of fairness and climate justice. In this respect, in addition to undesirable economic impacts, it is increasingly accepted that support must be provided to least-developed countries in order to achieve global net-zero emission targets. cbas do not necessarily provide this. Ultimately, there are pathways forward to ensure that trade tensions are minimized and fairness and equity are achieved in implementing cbas. As action on climate change mitigation is urgent, this pathway forward must be carefully but rapidly navigated.
{"title":"Carbon Border Adjustments: A Legal Tool for Mitigation or a Barrier to Justice?","authors":"Felicity Deane, Callum Brockett","doi":"10.1163/18786561-bja10038","DOIUrl":"https://doi.org/10.1163/18786561-bja10038","url":null,"abstract":"\u0000For the past two decades scholars and policymakers have argued that carbon border adjustments (cbas) may remove the risk of carbon leakage. This article examines two of the legal and moral issues relevant to cbas to better understand how cbas may be implemented to support climate change mitigation goals. World Trade Organization compliance represents a conundrum for policymakers. Although a cba may prove meaningful for greenhouse gas emission reduction, it could also lead to trade tensions if viewed as a disguised restriction on international trade. The impact of cbas on Global South nations also presents a concern in terms of fairness and climate justice. In this respect, in addition to undesirable economic impacts, it is increasingly accepted that support must be provided to least-developed countries in order to achieve global net-zero emission targets. cbas do not necessarily provide this. Ultimately, there are pathways forward to ensure that trade tensions are minimized and fairness and equity are achieved in implementing cbas. As action on climate change mitigation is urgent, this pathway forward must be carefully but rapidly navigated.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2023-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46962222","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-26DOI: 10.1163/18786561-12030001
T. Popa, A. Kallies, Vanessa Johnston, Gabriella Belfrage-Maher
Over the past two decades a global jurisprudential trend of domestic climate litigation against governments and companies has emerged. One avenue for litigation against these entities is tort law. The tort of negligence could provide access to compensation for aggrieved individuals and groups. Using the example of Australia, this article discusses whether the emergence of climate tort cases, an increasing drive to hold corporations responsible for climate change, and a company focus on voluntary climate action, could lead to the emergence of a new duty of care by corporate actors toward non-shareholders. We highlight opportunities and barriers to the further development of negligence law as a cause of action against corporations for harms related to climate change.
{"title":"Do Emerging Trends in Climate Litigation Signal a Potential Cause of Action in Negligence against Corporations by the Australian Public?","authors":"T. Popa, A. Kallies, Vanessa Johnston, Gabriella Belfrage-Maher","doi":"10.1163/18786561-12030001","DOIUrl":"https://doi.org/10.1163/18786561-12030001","url":null,"abstract":"\u0000 Over the past two decades a global jurisprudential trend of domestic climate litigation against governments and companies has emerged. One avenue for litigation against these entities is tort law. The tort of negligence could provide access to compensation for aggrieved individuals and groups. Using the example of Australia, this article discusses whether the emergence of climate tort cases, an increasing drive to hold corporations responsible for climate change, and a company focus on voluntary climate action, could lead to the emergence of a new duty of care by corporate actors toward non-shareholders. We highlight opportunities and barriers to the further development of negligence law as a cause of action against corporations for harms related to climate change.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2022-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49400238","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-26DOI: 10.1163/18786561-12030004
Hana Müllerová, A. Ač
In June 2022, a Czech climate lawsuit, Klimatická žaloba ČR, z. s. and Others v. Government of the Czech Republic and Others was decided by a first-instance court. The litigation was led against the Czech state for insufficient climate mitigation and adaptation effort. The Municipal Court in Prague largely upheld the plaintiffs’ claim that the Czech mitigation measures adopted to date were contrary to the Paris Agreement; and it found that the country must substantially strengthen its reduction rate of greenhouse gas emissions. This result—the first of its kind in the Czech Republic—was a surprise to many in a country whose courts have been conservative in environmental matters. The judgment fits in well with current trends in climate litigation and follows the arguments of landmark climate cases such as Urgenda. This article provides a summary of the lawsuit and analyses two of the most important parts of the judgment: the court’s reasoning on the state’s obligation to reduce greenhouse gas emissions and its ‘climatic’ interpretation of the fundamental right to a favourable environment, as guaranteed by the Czech Constitution.
{"title":"The First Czech Climate Judgment: A Novel Perspective on the State’s Duty to Mitigate and on the Right to a Favourable Environment","authors":"Hana Müllerová, A. Ač","doi":"10.1163/18786561-12030004","DOIUrl":"https://doi.org/10.1163/18786561-12030004","url":null,"abstract":"\u0000 In June 2022, a Czech climate lawsuit, Klimatická žaloba ČR, z. s. and Others v. Government of the Czech Republic and Others was decided by a first-instance court. The litigation was led against the Czech state for insufficient climate mitigation and adaptation effort. The Municipal Court in Prague largely upheld the plaintiffs’ claim that the Czech mitigation measures adopted to date were contrary to the Paris Agreement; and it found that the country must substantially strengthen its reduction rate of greenhouse gas emissions. This result—the first of its kind in the Czech Republic—was a surprise to many in a country whose courts have been conservative in environmental matters. The judgment fits in well with current trends in climate litigation and follows the arguments of landmark climate cases such as Urgenda. This article provides a summary of the lawsuit and analyses two of the most important parts of the judgment: the court’s reasoning on the state’s obligation to reduce greenhouse gas emissions and its ‘climatic’ interpretation of the fundamental right to a favourable environment, as guaranteed by the Czech Constitution.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2022-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41672004","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-26DOI: 10.1163/18786561-12030003
A. Hardiman
Recognizing that significantly increased renewable-energy share (res) is a central component of both EU climate and environmental law, the focus of this paper is the point of intersection between these legal frameworks. Renewable-energy infrastructure projects are necessary for climate-mitigation purposes, but they give rise to significant local environmental impacts that have a negative effect on local communities and environmental conditions. The objective of environmental protection, ‘to preserve, protect and improve the quality of the environment’, does not fully align with the objectives of climate mitigation, which are designed to safeguard the needs of future generations and the long-term environment. While EU environmental policy encompasses ‘measures designed to combat climate change’, little attention has been afforded in relevant Directives to the impact of climate-mitigation measures on the environment. There is no provision for proportionate treatment of the impacts of these measures in environmental governance procedures. Analysis of the provisions of the eia and Habitats Directives, which directly impact the authorization of renewable-energy projects, reveals that climate as a component of EU environmental policy is dealt with via the limitation and control of greenhouse gas emissions, an incomplete approach that fails to provide for the development of new large-scale infrastructure that can mitigate the generation of greenhouse gas emissions through provision of sustainable energy sources. The European Union’s revised Trans European Network – Energy (ten-E) Regulation (June 2022) provides that energy infrastructure in the form of projects of common interest shall be deemed to be in the overriding public interest in the context of the Habitats Directive, an exception to that Directive’s prohibition on development that could negatively impact protected Natura 2000 features. A proposal pursuant to the EU Commission’s plan ‘REPowerEU’ recommends an amendment to the Renewable Energy Directive to introduce a similar overriding provision in respect of all renewable-energy infrastructure projects. These sidestepping provisions in climate-energy laws, made necessary by the failure of EU environmental law to incorporate effective provisions that promote climate change measures, are an incomplete solution that will limit the regulation of an environmentally responsible approach to increased res and are likely to be challenged.
{"title":"Climate, Energy – and Environment? Reconciliation of EU Environmental Law with the Implementation Realities of EU Climate Law","authors":"A. Hardiman","doi":"10.1163/18786561-12030003","DOIUrl":"https://doi.org/10.1163/18786561-12030003","url":null,"abstract":"\u0000 Recognizing that significantly increased renewable-energy share (res) is a central component of both EU climate and environmental law, the focus of this paper is the point of intersection between these legal frameworks. Renewable-energy infrastructure projects are necessary for climate-mitigation purposes, but they give rise to significant local environmental impacts that have a negative effect on local communities and environmental conditions. The objective of environmental protection, ‘to preserve, protect and improve the quality of the environment’, does not fully align with the objectives of climate mitigation, which are designed to safeguard the needs of future generations and the long-term environment. While EU environmental policy encompasses ‘measures designed to combat climate change’, little attention has been afforded in relevant Directives to the impact of climate-mitigation measures on the environment. There is no provision for proportionate treatment of the impacts of these measures in environmental governance procedures. Analysis of the provisions of the eia and Habitats Directives, which directly impact the authorization of renewable-energy projects, reveals that climate as a component of EU environmental policy is dealt with via the limitation and control of greenhouse gas emissions, an incomplete approach that fails to provide for the development of new large-scale infrastructure that can mitigate the generation of greenhouse gas emissions through provision of sustainable energy sources. The European Union’s revised Trans European Network – Energy (ten-E) Regulation (June 2022) provides that energy infrastructure in the form of projects of common interest shall be deemed to be in the overriding public interest in the context of the Habitats Directive, an exception to that Directive’s prohibition on development that could negatively impact protected Natura 2000 features. A proposal pursuant to the EU Commission’s plan ‘REPowerEU’ recommends an amendment to the Renewable Energy Directive to introduce a similar overriding provision in respect of all renewable-energy infrastructure projects. These sidestepping provisions in climate-energy laws, made necessary by the failure of EU environmental law to incorporate effective provisions that promote climate change measures, are an incomplete solution that will limit the regulation of an environmentally responsible approach to increased res and are likely to be challenged.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2022-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41519449","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-04-25DOI: 10.1163/18786561-20210003
J. McDonald, Phillipa C. McCormack
‘Shared responsibility’ for managing risk is central to Australian adaptation and disaster-resilience policies, yet there is no consensus on what this term means or how it is discharged by various actors at each phase of the risk-management process. This has implications for both equity and effectiveness, because shared responsibility assumes that individuals have capacity and that the decisions they make will not conflict with other public values. This article explores how law assigns responsibility for climate adaptation by examining its approach to a specific climate impact in Australia: the increasing frequency and severity of bushfire. Australia faces heightened bushfire risk from the interplay of climate change effects and demographic shifts. While planning laws attempt to limit exposure of new communities to fire risks, adapting existing communities involves hazard mitigation across the landscape, through fuel reduction – accomplished by controlled burning or clearing of brush and timber – and the construction of fuel breaks. Most Australian jurisdictions impose some form of obligation on land managers or owners to mitigate fire risk. However, the effectiveness of shifting responsibility onto individual landholders, measured in terms of bushfire risk mitigation, is not established. The shifting of responsibility also has implications for equity because shared responsibility for fire management assumes that individuals know what must be done and have the capacity to do it themselves or pay others to. The law also privileges bushfire protection above other public values, including the protection of biodiversity and cultural values. To account for the complexity of adaptation decision-making, bushfire mitigation laws should avoid creating inequities and should include mechanisms for resolving trade-offs between competing values.
{"title":"Responsibility and Risk-Sharing in Climate Adaptation: a Case Study of Bushfire Risk in Australia","authors":"J. McDonald, Phillipa C. McCormack","doi":"10.1163/18786561-20210003","DOIUrl":"https://doi.org/10.1163/18786561-20210003","url":null,"abstract":"\u0000‘Shared responsibility’ for managing risk is central to Australian adaptation and disaster-resilience policies, yet there is no consensus on what this term means or how it is discharged by various actors at each phase of the risk-management process. This has implications for both equity and effectiveness, because shared responsibility assumes that individuals have capacity and that the decisions they make will not conflict with other public values. This article explores how law assigns responsibility for climate adaptation by examining its approach to a specific climate impact in Australia: the increasing frequency and severity of bushfire. Australia faces heightened bushfire risk from the interplay of climate change effects and demographic shifts. While planning laws attempt to limit exposure of new communities to fire risks, adapting existing communities involves hazard mitigation across the landscape, through fuel reduction – accomplished by controlled burning or clearing of brush and timber – and the construction of fuel breaks. Most Australian jurisdictions impose some form of obligation on land managers or owners to mitigate fire risk. However, the effectiveness of shifting responsibility onto individual landholders, measured in terms of bushfire risk mitigation, is not established. The shifting of responsibility also has implications for equity because shared responsibility for fire management assumes that individuals know what must be done and have the capacity to do it themselves or pay others to. The law also privileges bushfire protection above other public values, including the protection of biodiversity and cultural values. To account for the complexity of adaptation decision-making, bushfire mitigation laws should avoid creating inequities and should include mechanisms for resolving trade-offs between competing values.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2022-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41808072","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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