Pub Date : 2020-06-26DOI: 10.1163/18786561-01002003
A. Kodolova, A. Solntsev
The Russian Federation is the fourth largest producer of greenhouse gas emissions in the world. The article is a study of how these emissions are monitored in Russia. In the framework of the polluter-pays principle (ppp), the current Russian legislation on pollutants provides for payment only for methane emissions. No payments are established for any of the other greenhouse gases. The authors conclude that, at present, Russian legislation does not regulate action against climate change, although many political and legal documents are being adopted aimed at adapting to the effects of climate change. A draft statute “On State Regulation of Greenhouse Gas Emissions and Absorption and on Amendments to Certain Legislative Acts of the Russian Federation” is analysed. Despite the fact that this draft law is strongly opposed by the affected industries, the authors conclude that the adoption of this law and the creation of a targeted national climate fund will contribute to the implementation of the ppp in Russia for the purpose of combating climate change.
{"title":"Application of the Polluter-pays Principle in Russian Legislation on Climate Change: Problems and Prospects","authors":"A. Kodolova, A. Solntsev","doi":"10.1163/18786561-01002003","DOIUrl":"https://doi.org/10.1163/18786561-01002003","url":null,"abstract":"The Russian Federation is the fourth largest producer of greenhouse gas emissions in the world. The article is a study of how these emissions are monitored in Russia. In the framework of the polluter-pays principle (ppp), the current Russian legislation on pollutants provides for payment only for methane emissions. No payments are established for any of the other greenhouse gases. The authors conclude that, at present, Russian legislation does not regulate action against climate change, although many political and legal documents are being adopted aimed at adapting to the effects of climate change. A draft statute “On State Regulation of Greenhouse Gas Emissions and Absorption and on Amendments to Certain Legislative Acts of the Russian Federation” is analysed. Despite the fact that this draft law is strongly opposed by the affected industries, the authors conclude that the adoption of this law and the creation of a targeted national climate fund will contribute to the implementation of the ppp in Russia for the purpose of combating climate change.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2020-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-01002003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48418075","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 : 2020-06-26DOI: 10.1163/18786561-01002002
R. Weber, Andreas Hösli
Businesses are increasingly expected to consider the environmental and social impacts of their undertakings. In recent years, the focus has shifted to climate-change-related aspects of corporate behaviour. While climate change litigation against corporations continues to evolve globally, there is a growing debate with regard to directors’ duties: are directors expected to consider climate-change-related risks in their decision making? If yes, to what extent? The issue has received considerable attention from commentators in relation to common law jurisdictions, but so far it has been less discussed in relation to civil law countries. This article attempts to contribute to filling this gap by presenting a comparative analysis, with a main focus on claims based on corporate and securities law.
{"title":"Climate Change Liability: Comparing Risks for Directors in Jurisdictions of the Common and Civil Law","authors":"R. Weber, Andreas Hösli","doi":"10.1163/18786561-01002002","DOIUrl":"https://doi.org/10.1163/18786561-01002002","url":null,"abstract":"Businesses are increasingly expected to consider the environmental and social impacts of their undertakings. In recent years, the focus has shifted to climate-change-related aspects of corporate behaviour. While climate change litigation against corporations continues to evolve globally, there is a growing debate with regard to directors’ duties: are directors expected to consider climate-change-related risks in their decision making? If yes, to what extent? The issue has received considerable attention from commentators in relation to common law jurisdictions, but so far it has been less discussed in relation to civil law countries. This article attempts to contribute to filling this gap by presenting a comparative analysis, with a main focus on claims based on corporate and securities law.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2020-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-01002002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44577154","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 : 2020-06-26DOI: 10.1163/18786561-01002004
M. Broberg
With the 2015 Paris Agreement, ‘loss and damage’ (L&D) was introduced into the unfccc treaty framework as a new, third substantive area of climate change law. Both before and after its adoption, this new area has been subject to much contention—and this is reflected in a high degree of uncertainty surrounding its interpretation. This article examines the definition of L&D and the types of impact covered by the notion. It also examines the relationship of L&D with mitigation and adaptation, as well as the instruments that are covered by it. Finally, the article considers the controversial issue of who can invoke L&D—and against whom.
{"title":"State of Climate Law∵The Third Pillar of International Climate Change Law: Explaining ‘Loss and Damage’ after the Paris Agreement","authors":"M. Broberg","doi":"10.1163/18786561-01002004","DOIUrl":"https://doi.org/10.1163/18786561-01002004","url":null,"abstract":"With the 2015 Paris Agreement, ‘loss and damage’ (L&D) was introduced into the unfccc treaty framework as a new, third substantive area of climate change law. Both before and after its adoption, this new area has been subject to much contention—and this is reflected in a high degree of uncertainty surrounding its interpretation. This article examines the definition of L&D and the types of impact covered by the notion. It also examines the relationship of L&D with mitigation and adaptation, as well as the instruments that are covered by it. Finally, the article considers the controversial issue of who can invoke L&D—and against whom.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2020-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-01002004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49410603","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 : 2020-06-26DOI: 10.1163/18786561-01002001
Phillipa C. McCormack, J. McDonald, K. Brent
Climate change is a fundamental threat to biodiversity. Climate mitigation in general, and Negative-Emission Technologies ( net s) in particular, have the potential to benefit biodiversity by reducing climate impacts. Domestic laws could help to ensure that net s have benefits for biodiversity adaptation to climate change (e.g. reducing land clearing and habitat loss and facilitating habitat restoration, corridors for species’ migration, and broader ecological resilience). Domestic laws will also need to govern trade-offs between net s and biodiversity adaptation (e.g. increased competition for land and landscape-scale fragmentation by new industrial developments and linear infrastructure). We argue that domestic laws should be used to maximize the benefits of net s while minimizing trade-offs for biodiversity. These laws should ensure that trade-offs are, at the very least, explicit and transparent, both in terms of their implications for current biodiversity and in the context of an acceleration of climate-driven biodiversity decline.
{"title":"Governance of Land-based Negative-emission Technologies to Promote Biodiversity Conservation: Lessons from Australia","authors":"Phillipa C. McCormack, J. McDonald, K. Brent","doi":"10.1163/18786561-01002001","DOIUrl":"https://doi.org/10.1163/18786561-01002001","url":null,"abstract":"Climate change is a fundamental threat to biodiversity. Climate mitigation in general, and Negative-Emission Technologies ( net s) in particular, have the potential to benefit biodiversity by reducing climate impacts. Domestic laws could help to ensure that net s have benefits for biodiversity adaptation to climate change (e.g. reducing land clearing and habitat loss and facilitating habitat restoration, corridors for species’ migration, and broader ecological resilience). Domestic laws will also need to govern trade-offs between net s and biodiversity adaptation (e.g. increased competition for land and landscape-scale fragmentation by new industrial developments and linear infrastructure). We argue that domestic laws should be used to maximize the benefits of net s while minimizing trade-offs for biodiversity. These laws should ensure that trade-offs are, at the very least, explicit and transparent, both in terms of their implications for current biodiversity and in the context of an acceleration of climate-driven biodiversity decline.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2020-06-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-01002001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47114860","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 : 2020-03-19DOI: 10.1163/18786561-01001001
S. Kingston
In EU law the polluter pays principle (ppp) enjoys constitutional status: Article 191(2) of the Treaty on the Functioning of the European Union (tfeu) enshrines it among the fundamental principles of the EU’s environmental policy. This article considers the legal status and development of the ppp in EU law, in the case law of the Court of Justice of the European Union (cjeu) and in EU policy, most recently in the EU’s Green New Deal. It goes on to identify three bodies of climate-related litigation where the ppp has been most influential to date: first, cases concerning the EU ets and emissions; second, cases concerning EU energy law; and third, cases concerning EU state-aid law. The conclusion reflects on the potential role of the ppp in other areas, including climate cases based on human and environmental rights, and climate cases brought against private parties.
{"title":"The Polluter Pays Principle in EU Climate Law: an Effective Tool before the Courts?","authors":"S. Kingston","doi":"10.1163/18786561-01001001","DOIUrl":"https://doi.org/10.1163/18786561-01001001","url":null,"abstract":"In EU law the polluter pays principle (ppp) enjoys constitutional status: Article 191(2) of the Treaty on the Functioning of the European Union (tfeu) enshrines it among the fundamental principles of the EU’s environmental policy. This article considers the legal status and development of the ppp in EU law, in the case law of the Court of Justice of the European Union (cjeu) and in EU policy, most recently in the EU’s Green New Deal. It goes on to identify three bodies of climate-related litigation where the ppp has been most influential to date: first, cases concerning the EU ets and emissions; second, cases concerning EU energy law; and third, cases concerning EU state-aid law. The conclusion reflects on the potential role of the ppp in other areas, including climate cases based on human and environmental rights, and climate cases brought against private parties.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2020-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-01001001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49196414","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 : 2020-03-19DOI: 10.1163/18786561-01001004
D. Heine, M. Faure, G. Dominioni
There is a lively debate among scholars and policymakers on whether either consumers or producers should be seen as responsible for pollution caused in the production and consumption of traded goods. In this article, we argue that, in conformity with intuitive conceptions of causation, the economic incidence of a Pigouvian tax can be seen as a measure of the relative contribution to pollution of consumers and producers. Taking this perspective on the polluter-pays principle can help increase ambition in climate change action because it reduces the relevance of the question “Who is the polluter?” in climate change negotiations and enables a focus instead on the issue of “What can be done?” to reduce carbon emissions.
{"title":"The Polluter-Pays Principle in Climate Change Law: an Economic Appraisal","authors":"D. Heine, M. Faure, G. Dominioni","doi":"10.1163/18786561-01001004","DOIUrl":"https://doi.org/10.1163/18786561-01001004","url":null,"abstract":"There is a lively debate among scholars and policymakers on whether either consumers or producers should be seen as responsible for pollution caused in the production and consumption of traded goods. In this article, we argue that, in conformity with intuitive conceptions of causation, the economic incidence of a Pigouvian tax can be seen as a measure of the relative contribution to pollution of consumers and producers. Taking this perspective on the polluter-pays principle can help increase ambition in climate change action because it reduces the relevance of the question “Who is the polluter?” in climate change negotiations and enables a focus instead on the issue of “What can be done?” to reduce carbon emissions.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2020-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-01001004","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47790778","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 : 2020-03-19DOI: 10.1163/18786561-01001003
Paul A. Barresi
The disparate fates of the polluter pays principle (ppp) as an instrument of municipal environmental governance in the environmental law of China, India, and the United States illustrate how institutions and culture can shape its use. In China, essential elements of the Chinese legal tradition and an institutionalized devolution of power from the central government to local governments essentially neutralized the Chinese variant of the ppp in one important context by mobilizing certain culturally defined behavioural norms at the local level. In India, the Supreme Court has behaved in accordance with the socially revolutionary role intended for it by the framers of India’s Constitution by recognizing a maximalist conception of the ppp as part of Indian law, although other features of India’s unique legal culture and institutions have reduced the impact of this development. In the United States, the institutionalized fragmentation of the law-making process within the Federal Government has undermined even the implicit implementation of the ppp, to which US environmental statutes do not refer. The implications of these developments for the ppp as an instrument of municipal but also global environmental governance in climate change mitigation law flow less from the nominal status of the ppp in the laws of China, India, and the United States than from the unique institutional and cultural conditions that prevail there. The result is a case study in how institutions and culture can transform the implementation of a principle of environmental governance that at first glance might seem to be a simple exercise in economic rationality into a different exercise that is not simple at all.
{"title":"The Polluter Pays Principle as an Instrument of Municipal and Global Environmental Governance in Climate Change Mitigation Law: Lessons from China, India, and the United States","authors":"Paul A. Barresi","doi":"10.1163/18786561-01001003","DOIUrl":"https://doi.org/10.1163/18786561-01001003","url":null,"abstract":"The disparate fates of the polluter pays principle (ppp) as an instrument of municipal environmental governance in the environmental law of China, India, and the United States illustrate how institutions and culture can shape its use. In China, essential elements of the Chinese legal tradition and an institutionalized devolution of power from the central government to local governments essentially neutralized the Chinese variant of the ppp in one important context by mobilizing certain culturally defined behavioural norms at the local level. In India, the Supreme Court has behaved in accordance with the socially revolutionary role intended for it by the framers of India’s Constitution by recognizing a maximalist conception of the ppp as part of Indian law, although other features of India’s unique legal culture and institutions have reduced the impact of this development. In the United States, the institutionalized fragmentation of the law-making process within the Federal Government has undermined even the implicit implementation of the ppp, to which US environmental statutes do not refer. The implications of these developments for the ppp as an instrument of municipal but also global environmental governance in climate change mitigation law flow less from the nominal status of the ppp in the laws of China, India, and the United States than from the unique institutional and cultural conditions that prevail there. The result is a case study in how institutions and culture can transform the implementation of a principle of environmental governance that at first glance might seem to be a simple exercise in economic rationality into a different exercise that is not simple at all.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2020-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-01001003","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44777353","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 : 2020-03-19DOI: 10.1163/18786561-01001002
N. Sadeleer
Since 2009, the EU ets Directive set up a general rule for the auctioning of emission allowances. It is subject to a number of exemptions. The transitional allocation of free allowances in the electricity sector, and in general the granting of free or below-market-price allowances, are caught by the tfeu prohibition on grants of state aid. However, the EU legislature and its executive—the European Commission—are empowered to grant the EU member states exemptions in order to correct market failures. At face value, such arrangements seem to run contrary to the polluter-pays principle on account that state aid subsidizes emissions of greenhouse gases instead of internalizing their costs into the price of goods and services delivered by the recipient installations. This article explores how such arrangements amount to state aid and analyses the manner in which the exemptions are consistent with the polluter-pays principle.
{"title":"Consistency between the Granting of State Aid and the Polluter-Pays Principle: Aid Aimed at Mitigating Climate Change","authors":"N. Sadeleer","doi":"10.1163/18786561-01001002","DOIUrl":"https://doi.org/10.1163/18786561-01001002","url":null,"abstract":"Since 2009, the EU ets Directive set up a general rule for the auctioning of emission allowances. It is subject to a number of exemptions. The transitional allocation of free allowances in the electricity sector, and in general the granting of free or below-market-price allowances, are caught by the tfeu prohibition on grants of state aid. However, the EU legislature and its executive—the European Commission—are empowered to grant the EU member states exemptions in order to correct market failures. At face value, such arrangements seem to run contrary to the polluter-pays principle on account that state aid subsidizes emissions of greenhouse gases instead of internalizing their costs into the price of goods and services delivered by the recipient installations. This article explores how such arrangements amount to state aid and analyses the manner in which the exemptions are consistent with the polluter-pays principle.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2020-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-01001002","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42036357","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 : 2020-03-19DOI: 10.1163/18786561-01001005
Michael Addaney
{"title":"State Responsibility, Climate Change and Human Rights under International Law, by Margaretha Wewerinke-Singh","authors":"Michael Addaney","doi":"10.1163/18786561-01001005","DOIUrl":"https://doi.org/10.1163/18786561-01001005","url":null,"abstract":"","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2020-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-01001005","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48320608","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 : 2019-12-11DOI: 10.1163/18786561-00904001
Kevin B. Jones, Benjamin B. Civiletti, Angela Sicker
Open access to electric markets supports the integration of growing renewable energy resources. This is increasingly important as more US states aim to meet 100 percent of their energy needs with zero-emission resources. Currently states employ a wide variety of renewable energy targets and eligibility requirements. An example of the increasingly complex US state policy patchwork is state-mandated zero-emission credits (zecs) for nuclear facilities. Rather than increase conflict between clean energy goals and wholesale electric markets, there is a need for a more comprehensive regional approach that provides the appropriate price signals for carbon through existing market mechanisms. A carbon charge could be designed to eliminate the need for out-of-market zec payments to nuclear generation and significantly reduce state payments for renewable energy credits. This article examines the growing conflict between regional electricity markets and more localized clean-energy goals and explores how a carbon charge in the US regional electricity markets both mitigate this conflict and expedite the low-carbon transition.
{"title":"Carbon Pricing in US Electricity Markets: Expediting the Low-Carbon Transition While Mitigating the Growing Conflict between Renewable-Energy Goals and Regional Electricity Markets","authors":"Kevin B. Jones, Benjamin B. Civiletti, Angela Sicker","doi":"10.1163/18786561-00904001","DOIUrl":"https://doi.org/10.1163/18786561-00904001","url":null,"abstract":"Open access to electric markets supports the integration of growing renewable energy resources. This is increasingly important as more US states aim to meet 100 percent of their energy needs with zero-emission resources. Currently states employ a wide variety of renewable energy targets and eligibility requirements. An example of the increasingly complex US state policy patchwork is state-mandated zero-emission credits (zecs) for nuclear facilities. Rather than increase conflict between clean energy goals and wholesale electric markets, there is a need for a more comprehensive regional approach that provides the appropriate price signals for carbon through existing market mechanisms. A carbon charge could be designed to eliminate the need for out-of-market zec payments to nuclear generation and significantly reduce state payments for renewable energy credits. This article examines the growing conflict between regional electricity markets and more localized clean-energy goals and explores how a carbon charge in the US regional electricity markets both mitigate this conflict and expedite the low-carbon transition.","PeriodicalId":38485,"journal":{"name":"Climate Law","volume":null,"pages":null},"PeriodicalIF":1.0,"publicationDate":"2019-12-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1163/18786561-00904001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43701618","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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