The Paris Agreement is the first universal climate change agreement requiring all parties to communicate ambitious greenhouse gas (GHG) 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 first article examines how the Paris Agreement is directly implemented through incorporation into the domestic laws of the signatories as well as indirectly implemented through judicial decision-making in accordance with norms under the Paris Agreement. First, the article examines the international obligations created by the Paris Agreement, noting the flexible nature of the agreement and wide margin of discretion left to parties. Secondly, it explores how the Paris Agreement is incorporated in domestic laws and policies. The potential for litigation based on these international and domestic obligations will be considered. Thirdly, it discusses the courts’ application of norms under the Paris Agreement.
{"title":"The Influence of the Paris Agreement on Climate Litigation: Legal Obligations and Norms (Part I)∗","authors":"B. Preston","doi":"10.1093/jel/eqaa020","DOIUrl":"https://doi.org/10.1093/jel/eqaa020","url":null,"abstract":"\u0000 The Paris Agreement is the first universal climate change agreement requiring all parties to communicate ambitious greenhouse gas (GHG) 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 first article examines how the Paris Agreement is directly implemented through incorporation into the domestic laws of the signatories as well as indirectly implemented through judicial decision-making in accordance with norms under the Paris Agreement. First, the article examines the international obligations created by the Paris Agreement, noting the flexible nature of the agreement and wide margin of discretion left to parties. Secondly, it explores how the Paris Agreement is incorporated in domestic laws and policies. The potential for litigation based on these international and domestic obligations will be considered. Thirdly, it discusses the courts’ application of norms under the Paris Agreement.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":"33 1","pages":"1-32"},"PeriodicalIF":1.9,"publicationDate":"2021-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42216298","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":"Regulating Shipbreaking as a Global Activity: Issues of Fragmentation and Injustice","authors":"Ioanna Hadjiyianni, Anna Kloni","doi":"10.1093/JEL/EQAA033","DOIUrl":"https://doi.org/10.1093/JEL/EQAA033","url":null,"abstract":"","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":"33 1","pages":"211-225"},"PeriodicalIF":1.9,"publicationDate":"2021-04-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/JEL/EQAA033","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43787405","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}
In the absence of coordinated multilateral action, many countries seek to address environmental harm occurring in foreign jurisdictions by introducing measures that regulate the importation of certain products. In Australia, the Illegal Logging Prohibition Act 2012 (Cth) and the Illegal Logging Prohibition Regulation 2012 (Cth) prohibit the import of timber that has been harvested in a manner that is contrary to the laws of the harvesting country. One unsettled question is whether the measure is inconsistent with the law of the World Trade Organization. This article considers this question ahead of the Commonwealth Government’s 10-year review of the Measure. To this end, the article examines the consistency of the Act with the General Agreement on Tariffs and Trade and the Agreement on Technical Barriers to Trade. The findings of the article are relevant to Australia and to other countries that design and implement measures to regulate the importation of products for environmental objectives.
{"title":"‘Seeing the Wood for the Trees’: Revisiting the Consistency of Australia’s Illegal Logging Act with the Law of the World Trade Organization","authors":"Catherine E. Gascoigne","doi":"10.1093/JEL/EQAB005","DOIUrl":"https://doi.org/10.1093/JEL/EQAB005","url":null,"abstract":"\u0000 In the absence of coordinated multilateral action, many countries seek to address environmental harm occurring in foreign jurisdictions by introducing measures that regulate the importation of certain products. In Australia, the Illegal Logging Prohibition Act 2012 (Cth) and the Illegal Logging Prohibition Regulation 2012 (Cth) prohibit the import of timber that has been harvested in a manner that is contrary to the laws of the harvesting country. One unsettled question is whether the measure is inconsistent with the law of the World Trade Organization. This article considers this question ahead of the Commonwealth Government’s 10-year review of the Measure. To this end, the article examines the consistency of the Act with the General Agreement on Tariffs and Trade and the Agreement on Technical Barriers to Trade. The findings of the article are relevant to Australia and to other countries that design and implement measures to regulate the importation of products for environmental objectives.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":1.9,"publicationDate":"2021-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42260555","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}
Environmental models are ubiquitous in assessing the environmental impacts of planned projects. Modelling is an inferential process and includes various mechanisms to address the uncertainty of the outcome. In this article, we acknowledge the continuum of uncertainty assessments and identify the legal mechanisms with which Finnish judicial review—characterised by broad scope of review and in-house expert judges—has encountered model uncertainty. Closely examining 10 waters-related cases heard by the Supreme Administrative Court of Finland, we explain the porous yet substantial boundary between science and law revealed by the cases. The cases demonstrate the elegance with which courts can strike a balance between the contingent precautionary principle, gradually decreasing scientific uncertainty, and the procedural constraints under which they operate. We conclude by analysing the traces towards reciprocality and adaptivity the cases reveal, encouraged by the iterative modelling mechanism and challenged by the constitutional restrictions on the scope of review.
{"title":"Scientific and Legal Mechanisms for Addressing Model Uncertainties: Negotiating the Right Balance in Finnish Judicial Review?","authors":"Tiina Paloniitty, N. Kotamäki","doi":"10.1093/JEL/EQAB001","DOIUrl":"https://doi.org/10.1093/JEL/EQAB001","url":null,"abstract":"\u0000 Environmental models are ubiquitous in assessing the environmental impacts of planned projects. Modelling is an inferential process and includes various mechanisms to address the uncertainty of the outcome. In this article, we acknowledge the continuum of uncertainty assessments and identify the legal mechanisms with which Finnish judicial review—characterised by broad scope of review and in-house expert judges—has encountered model uncertainty. Closely examining 10 waters-related cases heard by the Supreme Administrative Court of Finland, we explain the porous yet substantial boundary between science and law revealed by the cases. The cases demonstrate the elegance with which courts can strike a balance between the contingent precautionary principle, gradually decreasing scientific uncertainty, and the procedural constraints under which they operate. We conclude by analysing the traces towards reciprocality and adaptivity the cases reveal, encouraged by the iterative modelling mechanism and challenged by the constitutional restrictions on the scope of review.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":1.9,"publicationDate":"2021-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/JEL/EQAB001","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47585267","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 examines whether the collapse of fossil energy markets and the introduction of decarbonisation regulation can trigger force majeure relief from fossil energy contracts. A critique of force majeure clauses from an environmental perspective will help to clarify how energy contracts lock buyers and suppliers into a carbon-intensive path. By not relieving buyers from their purchase obligations, even after respective market meltdowns and the disappearance of demand, force majeure, as defined in most energy contracts, can incentivise irrational energy use and waste, and is thus incompatible with a low-carbon transition. Climate regulation preventing a party from using fossil fuels can excuse performance of the obligation to purchase fossil energy, but the affected party can be required to challenge these decarbonisation measures and thus oppose the low-carbon transition. To avoid these perverse effects and align energy contracts to the reality of decarbonisation, economic hardship and environmental regulation should be explicitly included in force majeure clauses.
{"title":"Environmental Force Majeure: Relief from Fossil Energy Contracts in the Decarbonisation Era","authors":"Anatole Boute","doi":"10.1093/JEL/EQAA034","DOIUrl":"https://doi.org/10.1093/JEL/EQAA034","url":null,"abstract":"\u0000 This article examines whether the collapse of fossil energy markets and the introduction of decarbonisation regulation can trigger force majeure relief from fossil energy contracts. A critique of force majeure clauses from an environmental perspective will help to clarify how energy contracts lock buyers and suppliers into a carbon-intensive path. By not relieving buyers from their purchase obligations, even after respective market meltdowns and the disappearance of demand, force majeure, as defined in most energy contracts, can incentivise irrational energy use and waste, and is thus incompatible with a low-carbon transition. Climate regulation preventing a party from using fossil fuels can excuse performance of the obligation to purchase fossil energy, but the affected party can be required to challenge these decarbonisation measures and thus oppose the low-carbon transition. To avoid these perverse effects and align energy contracts to the reality of decarbonisation, economic hardship and environmental regulation should be explicitly included in force majeure clauses.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":"1 1","pages":""},"PeriodicalIF":1.9,"publicationDate":"2021-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/JEL/EQAA034","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41374925","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}
Coronavirus disease 2019 (COVID-19) has exposed serious deficiencies in the current legal framework to protect wild animal health, and consequently human health. As noted by the World Organisation for Animal Health (OIE), animal health and welfare are inextricably linked. However, there is no international agreement to promote animal welfare and neither the Convention on International Trade in Endangered Species of Wild Fauna and Flora nor the Convention on Biological Diversity, adequately address the welfare of the species they seek to conserve. While the OIE provides guidance on animal health and welfare standards for common agricultural species, it has provided limited guidance for the farming of wild species. China’s wildlife farming industry has been linked with the spread of COVID-19 but, to date, China has introduced few national welfare controls to protect the health of wild animals bred for human consumption. In the wake of COVID-19, these omissions must be remedied to provide appropriate safeguards to ensure animal health and welfare and protect public health.
{"title":"COVID-19 and Wildlife Farming in China: Legislating to Protect Wild Animal Health and Welfare in the Wake of a Global Pandemic","authors":"A. Whitfort","doi":"10.1093/JEL/EQAA030","DOIUrl":"https://doi.org/10.1093/JEL/EQAA030","url":null,"abstract":"\u0000 Coronavirus disease 2019 (COVID-19) has exposed serious deficiencies in the current legal framework to protect wild animal health, and consequently human health. As noted by the World Organisation for Animal Health (OIE), animal health and welfare are inextricably linked. However, there is no international agreement to promote animal welfare and neither the Convention on International Trade in Endangered Species of Wild Fauna and Flora nor the Convention on Biological Diversity, adequately address the welfare of the species they seek to conserve. While the OIE provides guidance on animal health and welfare standards for common agricultural species, it has provided limited guidance for the farming of wild species. China’s wildlife farming industry has been linked with the spread of COVID-19 but, to date, China has introduced few national welfare controls to protect the health of wild animals bred for human consumption. In the wake of COVID-19, these omissions must be remedied to provide appropriate safeguards to ensure animal health and welfare and protect public health.","PeriodicalId":46437,"journal":{"name":"Journal of Environmental Law","volume":" ","pages":""},"PeriodicalIF":1.9,"publicationDate":"2021-01-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1093/JEL/EQAA030","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42367406","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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