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Climate Change Liability ClimateChange l ord QC, ord Climate Change liability Climate as frustration mounts in some quarters at the perceived inadequacy or speed of international action on climate change, and as the likelihood of significant impacts grows, the focus is increasingly turning to liability for climate change damage. actual g or potential climate change liability implicates a growing range of actors, including and Rajamani oldberg, Change governments, industry, businesses, non-governmental organizations, individuals and legal practitioners. Climate Change Liability provides an objective, rigorous and accessible overview of the existing law and the direction it might take in seventeen developed and developing countries and the european Union. in some jurisdictions, the applicable law liability BLK is less developed and less the subject of current debate. in others, actions for various kinds of climate change liability have already been brought, including high-profile cases such y as massachusetts v. ePa in the United States. each chapter explores the potential for and transnational law and Practice barriers to climate change liability in private and public law. m l edi t ed by RiChaRd loRd QC is a london-based commercial litigator with over twenty-five iability C years’ experience, particularly of international disputes in the Commercial Court and Richard lord QC in arbitration, and with a particular interest in private law aspects of climate change. b runnée Silke goldbeRg is a Paris-based senior associate in herbert Smith’s global Silke goldberg energy practice and a research fellow in energy law at Rijksuniversiteit groningen, the netherlands. lavanya Rajamani lavanya RaJamani is a professor at the Centre for Policy Research, new delhi, Jutta brunnée iability PPC where she writes, teaches and advises on international environmental law, in particular l international climate change law and policy. JUtta Brunnée is Professor of law and metcalf Chair in environmental law at the University of toronto. Cover image: a boy stands on the dead stump of a palm tree in the Sundarban islands, bay of bengal, where rising sea levels pose a threat to homes and livelihoods. Reproduced courtesy of Robin hammond / Panos. : ClimateChange d R LO Cover designed by Hart McLeod Ltd CLIMATE CHANGE LIABILITY As frustration mounts in some quarters at the perceived inadequacy or speed of international action on climate change, and as the likelihood of signifi cant impacts grows, the focus is increasingly turning to liability for climate change damage. Actual or potential climate change liability implicates a growing range of actors, including governments, industry, businesses, non-governmental organisations, individuals and legal prac- titioners. Climate Change Liability provides an objective, rigorous and accessible overview of the existing law and the direction it might take in seventeen developed and developing countries and the European Union. In some jurisdictions, the applicable law is less developed and less the subject of current debate. In others, actions for various kinds of climate change liability have already been brought, including high-profi le cases such as Massachusetts v. EPA in the United States. Each chapter explores the potential for and barriers to climate change liability in private and public law. richard lord qc is a London-based commercial litigator with over twenty-fi ve years’ experience, particularly of international disputes in the Commercial Court and in arbitration, and with a particular interest in private law aspects of climate change. silke goldberg is a Paris-based senior associate in Herbert Smith’s global energy practice and a researcher in energy law at Rijksuniversiteit Groningen, Th e Netherlands. lavan ya r ajamani is a Professor at the Centre for Policy Research, New Delhi, where she writes, teaches and advises on international envir- onmental law, in particular international climate change law and policy. jutta bru n née is Professor of Law and Metcalf Chair in Environmental Law at the University of Toronto. C L I M A T E C H A N G E LIABILITY Transnational Law and Practice Edited by R I C H A R D L O R D S I L K E G O L D B E R G L A V A N Y A R A J A M A N I J U T T A B R U N N É E CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Tokyo, Mexico City Cambridge University Press Th e Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York w w w . c a m b r i d g e . o r g Information on this title: www.cambridge.org/9781107017603 © Oxfam International 2012 Th is publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2012 Printed in the United Kingdom at the University Press, Cambridge A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data Climate change liability : transnational law and practice / [edited by] Richard Lord ... [et al.]. p. cm. Includes bibliographical references and index. ISBN 978-1-107-01760-3 (hardback) – ISBN 978-1-107-67366-3 (paperback) 1 . Liability for climatic change damages. 2. Climatic changes– Law and legislation. 3. Confl ict of laws–Liability for environmental damages. I. Lord, Richard, 1959– K955.C557 2012 3 4 4 . 0 4 ′6342–dc23 2 0 1 1 0 4 1 5 8 1 I S B N 9 7 8 - 1 - 1 0 7 - 0 1 7 6 0 - 3 H a r d b a c k ISBN 978-1-107-67366-3 Paperback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. C O N T E N T S List of contributors and Editorial Board members viii F o r e w o r d xviii A c k n o w l e d g e m e n t s xx L i s t o f a b b r e v i a t i o n s xxii p a r t i L e g a l , s c i e n t i fi c and policy aspects 1 1 I n t r o d u c t i o n 3 jutta brunnée, silke goldberg, richard lord qc and lavanya rajamani 2 Th e scientifi c basis for climate change liability 8 myles allen 3 Overview of legal issues relevant to climate change 2 3 jutta brunnée, silke goldberg, richard lord qc and lavanya rajamani 4 P o l i c y c o n s i d e r a t i o n s 5 0 jutta brunnée, silke goldberg, richard lord qc and lavanya rajamani p a r t i i N a t i o n a l l a w s 6 5 Asia and Pacifi c 65 5 A u s t r a l i a 6 7 ross abbs, peter cashman and tim stephens 6 C h i n a 1 1 2 deng haifeng 7 I n d i a 1 3 9 lavanya rajamani and shibani ghosh v vi Contents 8 I n d o n e s i a 1 7 8 mas achmad santosa, josi khatarina and rifqi sjarief assegaf 9 J a p a n 2 0 6 yukari takamura A f r i c a a n d t h e M i d d l e E a s t 243 1 0 E g y p t 2 4 5 dalia farouk and lamiaa youssef 1 1 I s r a e l 2 7 2 issachar rosen-zvi 1 2 K e n y a 2 9 6 patricia kameri-mbote and collins odote 1 3 S o u t h A f r i c a 3 1 9 jan glazewski and debbie collier E u r o p e a n d E u r a s i a 349 1 4 E u r o p e a n U n i o n l a w 3 5 1 ludwig krämer 1 5 G e r m a n y 3 7 6 hans-joachim koch, michael lührs and roda verheyen 1 6 P o l a n d 4 1 7 bartosz kuraś, maciej szewczyk, dominik wałkowski, tomasz wardyński and izabela zielińska-barłożek 1 7 E n g l a n d 4 4 5 silke goldberg and richard lord qc 1 8 R u s s i a 4 8 9 fiona mucklow cheremeteff, max gutbrod, daria ratsiborinskaya and sergei sitnikov Contents vii N o r t h A m e r i c a 523 1 9 C a n a d a 5 2 5 meinhard doelle, dennis mahony and alex smith 2 0 U n i t e d S t a t e s o f A m e r i c a 5 5 6 michael b. gerrard and gregory e. wannier Central and South America 605 2 1 B r a z i l 6 0 7 yanko marcius de alencar xavier and pedro lucas de moura soares 2 2 M e x i c o 6 2 7 josé juan gonzález marquez S e l e c t e d r e s o u r c e s 650 I n d e x 662 CONTRIBUTORS AND EDITORIAL BOARD MEMBERS Contributors r o s s a b b s b .
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