Adjudicating Climate Change State, National, and International Approaches

Author: William C. G. Burns; Hari M. Osofsky
Publisher: Cambridge University Press
ISBN: 9781107638662
Published In: January 2012
Format: Paperback , 412 pages
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only

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Courts have emerged as a crucial battleground in efforts to regulate climate change. Over the past several years, tribunals at every level of government around the world have seen claims regarding greenhouse gas emissions and impacts. These cases rely on diverse legal theories, but all focus on government regulation of climate change or the actions of major corporate emitters. This book explores climate actions in state and national courts, as well as international tribunals, in order to explain their regulatory significance. It demonstrates the role that these cases play in broader debates over climate policy and argues that they serve as an important force in pressuring governments and emitters to address this crucial problem. As law firms and public interest organizations increasingly develop climate practice areas, the book serves as a crucial resource for practitioners, policymakers and academics.

• Addresses roles of courts in regulation of global climate change

• Analyzes a crucial emerging area of litigation

• Looks at lawsuits at multiple levels of governments brought under a wide range of legal theories

• Serves as a unique resource for those interested in these lawsuits

Foreword Peter E. Roderick	vii
Acknowledgments	ix
1 Overview: The Exigencies That Drive Potential Causes of Action for Climate Change William C. G. Burns and Hari M. Osofsky	1
PART I: SUBNATIONAL CASE STUDIES	29
2 State Action as Political Voice in Climate Change Policy: A Case Study of the Minnesota Environmental Cost Valuation Regulation Stephanie Stern	31
3 Litigating Climate Change at the Coal Mine Lesley K. McAllister	48
4 Cities, Land Use, and the Global Commons: Genesis and the Urban Politics of Climate Change Katherine Trisolini and Jonathan Zasloff	72
5 Atmospheric Trust Litigation Mary Christina Wood	99
Part II: National Case Studies	127
6 The Intersection of Scale, Science, and Law in Massachusetts v. EPA Hari M. Osofsky	129
7 Biodiversity, Global Warming, and the United States Endangered Species Act: The Role of Domestic Wildlife Law in Addressing Greenhouse Gas Emissions Brendan R. Cummings and Kassie R. Siegel	145
8 An Emerging Human Right to Security from Climate Change: The Case Against Gas Flaring in Nigeria Amy Sinden	173
9 Tort-Based Climate Litigation David A. Grossman	193
10 Insurance and Climate Change Litigation Jeffrey W. Stempel	230
PART III: SUPRANATIONAL CASE STUDIES	253
11 The World Heritage Convention and Climate Change: The Case for a Climate-Change Mitigation Strategy beyond the Kyoto Protocol Erica J. Thorson	255
12 The Inuit Petition as a Bridge? Beyond Dialectics of Climate Change and Indigenous Peoples’ Rights Hari M. Osofsky	272
13 Bringing Climate Change Claims to the Accountability Mechanisms of International Financial Institutions Jennifer Gleason and David B. Hunter	292
14 Potential Causes of Action for Climate Change Impacts under the United Nations Fish Stocks Agreement William C. G. Burns	314
15 Climate Change Litigation: Opening the Door to the International Court of Justice Andrew Strauss	334
16 The Implications of Climate Change Litigation: Litigation for International Environmental Law-Making David B. Hunter	357
17 Conclusion: Adjudicating Climate Change across Scales Hari M. Osofsky	375
Index	387

'Climate change stands as the critical environmental issue of our era. Yet governmental efforts to respond … have been halting at best, particularly in the United States. In the face of inaction and an inadequate response by legislatures and executive branch officials, the judiciary has stepped into the breach. As Burns and Osofsky – and the extraordinary team of authors they have assembled – explain, the most effective push for climate change policy action has come from courts. With a review of key cases at the state, national, and international levels, [this book] tells the story of these lawsuits, exploring the underlying legal theories, the litigants who pursued the actions, the decisions rendered, and the resulting policy impact. Bravo! A 'must-read' for students, policymakers, environmental group advocates, business leaders, and researchers.' Dan Esty, Hillhouse Professor of Environmental Law and Policy, Yale University

'There is a growing realization that courts have an important role to play in addressing climate change along side of legislatures and international bodies. This book provides a thorough and thoughtful survey of the legal landscape in this rapidly emerging area of litigation.' Dan Farber, Sho Sato Professor of Law and Chair, Energy and Resources Group, University of California, Berkeley

'Every profession is being called upon to stretch its capabilities to address the all-engulfing problem of climate change. The legal profession is struggling to find the appropriate roles for courts, legislatures and executives, and to fill in the gaps when one branch (or country) lags behind. [Burns and Osofsky] have performed a great service by boldly going forth and assembling a formidable collection of cutting-edge theories on what might be done by the courts – U.S., foreign and international. As with most collections of innovations, many will flop, but some may fly. The seriousness and complexity of the problem make this more than worth the effort for the writers and for their readers. This book considerably advances the ball in helping us all envision how the tools of the law can be brought to bear in addressing this challenge.' Michael B. Gerrard, Director, Center for Climate Change Law, Columbia Law School

'… this volume should be of special interest to the growing ranks of public officials (and public intellectuals) venturing into what is quite simply the biggest, hardest 'environmental' problem we have ever faced: globally catastrophic climate change.' Concurring Opinions

'This outstanding volume … is a highly laudable attempt that fills this gap with the help of meticulously researched contributions by some of the leading experts. It provides an insightful survey of evolving legal landscapes in the area of litigation and raises a series of critical questions.' Sanjay Chaturved, New Zealand Yearbook of International Law