This analysis considers the implications of Sharma v Minister for the Environment [2021] FCA 560 and its finding of a novel duty of care owed by the Australian Government to children to prevent climate harms. While the judgment of a single Federal Court justice is likely to be appealed and did not result in an injunction halting the coal mine, its close consideration of scientific evidence of climate impacts and recognition of the special vulnerability of children has potentially profound ramifications for the ongoing development of climate litigation, both in Australia and globally. More broadly, the Sharma decision adds to growing momentum for governments to be held accountable for their actions on climate change, effectively calling for a duty to care in the face of inter-generational injustices inflicted by inaction on reducing greenhouse gas emissions to safe levels.
{"title":"A Duty to Care: The Case of Sharma v Minister for the Environment [2021] FCA 560","authors":"J. Peel, Rebekkah Markey-Towler","doi":"10.1093/jel/eqab022","DOIUrl":"https://doi.org/10.1093/jel/eqab022","url":null,"abstract":"\u0000 This analysis considers the implications of Sharma v Minister for the Environment [2021] FCA 560 and its finding of a novel duty of care owed by the Australian Government to children to prevent climate harms. While the judgment of a single Federal Court justice is likely to be appealed and did not result in an injunction halting the coal mine, its close consideration of scientific evidence of climate impacts and recognition of the special vulnerability of children has potentially profound ramifications for the ongoing development of climate litigation, both in Australia and globally. More broadly, the Sharma decision adds to growing momentum for governments to be held accountable for their actions on climate change, effectively calling for a duty to care in the face of inter-generational injustices inflicted by inaction on reducing greenhouse gas emissions to safe levels.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":1.9,"publicationDate":"2021-08-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46368065","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Significant International Environmental Law Developments: 2020–2021","authors":"J. Harrison","doi":"10.1093/jel/eqab024","DOIUrl":"https://doi.org/10.1093/jel/eqab024","url":null,"abstract":"","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":1.9,"publicationDate":"2021-08-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48312047","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Paris Agreement is the first universal climate change agreement requiring all parties to communicate ambitious greenhouse gas reduction targets to achieve a long-term global temperature goal. The Paris Agreement is a game-changer at the international level, but has it been at the national (and sub-national) level? What has been the influence of the Paris Agreement on litigation to improve mitigation of and adaptation to climate change? This question is addressed in two articles. Both articles seek to look at a familiar topic—the Paris Agreement and climate litigation—in new and fresh ways. This second article examines how the Paris Agreement is influencing fact-finding in administrative and judicial decision-making, transforming corporate governance to be better attuned to climate risk and contributing to a ripple effect in climate litigation. The article first considers how the Paris Agreement has altered the factual considerations of climate change by demonstrating global agreement on the causal link between anthropogenic greenhouse gas emissions and the catastrophic consequences of climate change. Secondly, it illustrates how the Paris Agreement is affecting legal responsibilities by focusing on the influence of the Paris Agreement on corporate directors’ duties. Thirdly, it notes the ripple effect of climate litigation, contributing to the continued development of climate law.
{"title":"The Influence of the Paris Agreement on Climate Litigation: Causation, Corporate Governance and Catalyst (Part II)","authors":"B. Preston","doi":"10.1093/jel/eqaa021","DOIUrl":"https://doi.org/10.1093/jel/eqaa021","url":null,"abstract":"\u0000 The Paris Agreement is the first universal climate change agreement requiring all parties to communicate ambitious greenhouse gas reduction targets to achieve a long-term global temperature goal. The Paris Agreement is a game-changer at the international level, but has it been at the national (and sub-national) level? What has been the influence of the Paris Agreement on litigation to improve mitigation of and adaptation to climate change? This question is addressed in two articles. Both articles seek to look at a familiar topic—the Paris Agreement and climate litigation—in new and fresh ways. This second article examines how the Paris Agreement is influencing fact-finding in administrative and judicial decision-making, transforming corporate governance to be better attuned to climate risk and contributing to a ripple effect in climate litigation. The article first considers how the Paris Agreement has altered the factual considerations of climate change by demonstrating global agreement on the causal link between anthropogenic greenhouse gas emissions and the catastrophic consequences of climate change. Secondly, it illustrates how the Paris Agreement is affecting legal responsibilities by focusing on the influence of the Paris Agreement on corporate directors’ duties. Thirdly, it notes the ripple effect of climate litigation, contributing to the continued development of climate law.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":1.9,"publicationDate":"2021-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/jel/eqaa021","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45263927","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Narratives as Tools of Legal Re-Imagination in the Climate Crisis","authors":"Chiara Armeni","doi":"10.1093/jel/eqab007","DOIUrl":"https://doi.org/10.1093/jel/eqab007","url":null,"abstract":"","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":1.9,"publicationDate":"2021-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45461023","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Litigation involving climate change is on the increase both domestically and internationally and the Supreme Court's judgment in Friends of the Earth Ltd joins that list. While it was not as directly concerned with the implications of climate change as, perhaps, recent case law from the Netherlands or Australia, the case has significant implications including in terms of future litigation involving human rights challenges based on climate change. Three aspects of the judgment in particular warrant consideration. First, the legitimacy of the Court's purposive interpretation of the meaning of ‘Government policy’. Second, the Supreme Court left unanswered the question of whether the Paris Agreement was so ‘obviously material’ to the exercise of the relevant discretion that a failure to have regard to it would be Wednesbury unreasonable. Finally, the Supreme Court rejected the claim that designating the Airports National Policy Statement would interfere with any rights contained in the European Convention of Human Rights. This case analysis examines each of these aspects of the judgment.
{"title":"Friends of the Earth: ‘Government Policy’, Relevant Considerations and Human Rights","authors":"Stevie Martin","doi":"10.1093/jel/eqab012","DOIUrl":"https://doi.org/10.1093/jel/eqab012","url":null,"abstract":"\u0000 Litigation involving climate change is on the increase both domestically and internationally and the Supreme Court's judgment in Friends of the Earth Ltd joins that list. While it was not as directly concerned with the implications of climate change as, perhaps, recent case law from the Netherlands or Australia, the case has significant implications including in terms of future litigation involving human rights challenges based on climate change. Three aspects of the judgment in particular warrant consideration. First, the legitimacy of the Court's purposive interpretation of the meaning of ‘Government policy’. Second, the Supreme Court left unanswered the question of whether the Paris Agreement was so ‘obviously material’ to the exercise of the relevant discretion that a failure to have regard to it would be Wednesbury unreasonable. Finally, the Supreme Court rejected the claim that designating the Airports National Policy Statement would interfere with any rights contained in the European Convention of Human Rights. This case analysis examines each of these aspects of the judgment.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":1.9,"publicationDate":"2021-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42034063","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Friends of the Earth: At the Intersection of Environmental and Administrative Law?","authors":"A. Mills","doi":"10.1093/jel/eqab015","DOIUrl":"https://doi.org/10.1093/jel/eqab015","url":null,"abstract":"","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":1.9,"publicationDate":"2021-08-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41787705","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article explores the potential of a public-run, risk-based compensation fund to provide compensation for victims of corporate pollution in Kenya. Existing remedial mechanisms are severely limited by the uncertainty of recovery attributable to doctrinal barriers in liability rules, the length of time and cost involved in settling claims and the impact of corruption as a hindrance to access to justice. Depending on their design, compensation funds could offer prompt compensation at lower personal costs to claimants. Considering that victims of corporate pollution in Kenya tend to be poor, prompt compensation can cushion their welfare by providing much-needed funds to cover medical expenses and support livelihoods. While claimants would likely obtain less compensation in absolute amounts than in tort litigation, they would still retain the right to pursue supplemental compensation through alternative mechanisms. Thus, a pragmatic approach would be to develop a compensation fund while introducing effective reforms to existing mechanisms.
{"title":"Compensation Funds as a Remedial Mechanism for Victims of Corporate Pollution in Kenya: A Feasibility Study","authors":"Rose Mwanza","doi":"10.1093/jel/eqab017","DOIUrl":"https://doi.org/10.1093/jel/eqab017","url":null,"abstract":"\u0000 This article explores the potential of a public-run, risk-based compensation fund to provide compensation for victims of corporate pollution in Kenya. Existing remedial mechanisms are severely limited by the uncertainty of recovery attributable to doctrinal barriers in liability rules, the length of time and cost involved in settling claims and the impact of corruption as a hindrance to access to justice. Depending on their design, compensation funds could offer prompt compensation at lower personal costs to claimants. Considering that victims of corporate pollution in Kenya tend to be poor, prompt compensation can cushion their welfare by providing much-needed funds to cover medical expenses and support livelihoods. While claimants would likely obtain less compensation in absolute amounts than in tort litigation, they would still retain the right to pursue supplemental compensation through alternative mechanisms. Thus, a pragmatic approach would be to develop a compensation fund while introducing effective reforms to existing mechanisms.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":1.9,"publicationDate":"2021-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46436894","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"A Review in Three Haikus","authors":"Emily Barritt","doi":"10.1093/jel/eqab020","DOIUrl":"https://doi.org/10.1093/jel/eqab020","url":null,"abstract":"","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":1.9,"publicationDate":"2021-08-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46977990","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Large mammals (megafauna) are disproportionately important for ecosystem functioning and biodiversity, but have been lost to disproportionate degrees, mostly in prehistoric times. Against the background of scientific knowledge regarding the state of ecosystems before a man-made wave of extinctions significantly reduced the numbers and diversity of megafauna on most continents, this article examines how (inter)national law and policy relate to efforts to restore large herbivores, omnivores and carnivores to terrestrial ecosystems around the world. Such megafauna rewilding, involving the (re)introduction of vanished species or proxies thereof, poses significant challenges to current laws and policies at national and domestic levels. These tend to have institutionalised a collective amnesia and myopia regarding what is ‘natural’ and ‘indigenous’. The success of future megafauna restoration efforts will partly depend on an understanding of what it takes to navigate, adjust or redesign applicable legal frameworks, and the article tables a research agenda to that end.
{"title":"Megafauna Rewilding: Addressing Amnesia and Myopia in Biodiversity Law and Policy","authors":"A. Trouwborst","doi":"10.1093/jel/eqab016","DOIUrl":"https://doi.org/10.1093/jel/eqab016","url":null,"abstract":"\u0000 Large mammals (megafauna) are disproportionately important for ecosystem functioning and biodiversity, but have been lost to disproportionate degrees, mostly in prehistoric times. Against the background of scientific knowledge regarding the state of ecosystems before a man-made wave of extinctions significantly reduced the numbers and diversity of megafauna on most continents, this article examines how (inter)national law and policy relate to efforts to restore large herbivores, omnivores and carnivores to terrestrial ecosystems around the world. Such megafauna rewilding, involving the (re)introduction of vanished species or proxies thereof, poses significant challenges to current laws and policies at national and domestic levels. These tend to have institutionalised a collective amnesia and myopia regarding what is ‘natural’ and ‘indigenous’. The success of future megafauna restoration efforts will partly depend on an understanding of what it takes to navigate, adjust or redesign applicable legal frameworks, and the article tables a research agenda to that end.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":1.9,"publicationDate":"2021-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46016881","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article inquires to what extent the European Union (EU)–UK Trade and Cooperation Agreement (TCA) may help safeguard high levels of transnational environmental protection, taking into consideration potential reductions in UK levels of protection and the ensuing effects. The article encompasses an analysis of the Trade and Sustainable Development (TSD) Chapters in recent EU trade or trade and investment Agreements (FTAs); in this respect, it emphasises that the TCA’s provisions are innovative. However, the TCA has marked a shift from the EU’s initial attempts to exercise its extra-territorial leverage and push for high levels of transnational environmental protection to a focus on the stricto sensu economic level playing field. This narrow focus cannot possibly capture many aspects of environmental protection. The article thus concludes that, from an environmental perspective, the TCA’s provisions are far from ambitious. Further, it develops some considerations on the way forward for the EU institutions, as they start to rethink their approach to TSD Chapters.
{"title":"From Extra-Territorial Leverage and Transnational Environmental Protection to Distortions of Competition: The Level Playing Field in the EU–UK Trade and Cooperation Agreement","authors":"Giulia Claudia Leonelli","doi":"10.1093/jel/eqab010","DOIUrl":"https://doi.org/10.1093/jel/eqab010","url":null,"abstract":"\u0000 This article inquires to what extent the European Union (EU)–UK Trade and Cooperation Agreement (TCA) may help safeguard high levels of transnational environmental protection, taking into consideration potential reductions in UK levels of protection and the ensuing effects. The article encompasses an analysis of the Trade and Sustainable Development (TSD) Chapters in recent EU trade or trade and investment Agreements (FTAs); in this respect, it emphasises that the TCA’s provisions are innovative. However, the TCA has marked a shift from the EU’s initial attempts to exercise its extra-territorial leverage and push for high levels of transnational environmental protection to a focus on the stricto sensu economic level playing field. This narrow focus cannot possibly capture many aspects of environmental protection. The article thus concludes that, from an environmental perspective, the TCA’s provisions are far from ambitious. Further, it develops some considerations on the way forward for the EU institutions, as they start to rethink their approach to TSD Chapters.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":"1 1","pages":""},"PeriodicalIF":1.9,"publicationDate":"2021-08-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"61656759","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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