Climate Change Liability

Climate Change Change Climate L ord G QC, 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 or potential climate change liability implicates a growing range of actors, including oldberg, Rajamani and B 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.

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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.

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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

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First published 2012

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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 . a . ( h o n s ) , l l . b . ( h o n s ) ( n e w c a s t l e ) , b . c . l . (oxon) is a Research Assistant at the Faculty of Law, University of Sydney.

dr myles allen is Professor of Geosystem Science in the School of Geography and the Environment and Department of Physics, University of Oxford. He has served on the Intergovernmental Panel on Climate Change and leads the climateprediction.net project, using computing time donated by the public for climate research. His interests focus on uncertainty in climate analysis and prediction, particularly the challenge of attributing harm to human infl uence on climate.

rifqi sjarief assegaf is the head of the research division of the Presidential Task Force to Combat Corruption in the Enforcement System and senior researcher at the NGO Indonesian Institute for Judicial Independence (LeIP). He specialises in judicial reform, anti-corruption and access to information and is actively involved in research, legal draft - ing and policy advocacy in those areas. In 2005, he received Th e Asia Foundation 50th Anniversary Award in Recognition of Outstanding Contribution to Law Reform in Indonesia.

jutta brunnée is Associate Dean of Law (Graduate) and Professor of Law and Metcalf Chair in Environmental Law, University of Toronto. Her teaching and research interests are in the areas of Public International Law and International Environmental Law. She is co-author of Legitimacy and Legality in International Law: An Interactional Account (Cambridge University Press, 2010), which was awarded the American Society of International Law’s 2011 Certifi cate of Merit for pre-eminent contribu- tion to creative scholarship.

viii List of contributors and Editorial Board members ix dr peter cashman is a barrister and Professor of Law (Social Justice) at the University of Sydney. He holds a degree in law and a diploma in criminology from the University of Melbourne and a Master of Laws de- gree and a Ph.D. from the University of London. He has practised law in the United Kingdom, the United States and Australia and is the author of numerous publications, including Class Action Law and Practice .

d r d e b b i e c o l l i e r b . a . , l l . b . ( r h o d e s u n i v e r s i t y ) , l l . m . , ph.d. (university of cape town) is an Attorney of the High Court of South Africa, a Senior Lecturer in the Department of Commercial Law at the University of Cape Town, and the Deputy Director of the Institute of Development and Labour Law.

p r o f e s s o r m e i n h a r d d o e l l e , b . s c . ( c h e m i s t r y ) , l l . b . (dal.), ll.m. (osgoode hall), j.s.d. (dal.), is an Associate Professor at Dalhousie University’s Schulich School of Law. He serves as the Associate Director of the Marine and Environmental Law Institute and has written books on a variety of environmental law topics, of which his most recent are Environmental Law: Cases and Materials (2009) and Th e Federal Environmental Assessment Process: a Guide and Critique (2008).

d a l i a f a r o u k i s a q u a l i fi ed lawyer registered at the Egyptian Bar Association and works as Pro Bono Counsel with law fi rm Sharkawy & Sarhan. She works on providing legal consultations to NGOs, social ventures, public interest projects and to eligible low-income individuals on various subjects of the law. She has also worked on general corporate issues.

m i c h a e l b . g e r r a r d i s A n d r e w S a b i n P r o f e s s o r o f P r o f e s s i o n a l Practice at Columbia Law School in New York, where he teaches courses on environmental and energy law and directs the Center for Climate Change Law. He is Senior Counsel to Arnold & Porter LLP and has writ- ten or edited nine books, including Global Climate Change and US Law (2007) and Th e Law of Clean Energy: Effi ciency and Renewables (2011).

shibani ghosh is a practising public interest lawyer specialising in environmental and access-to-information laws. She has litigated, among others, cases challenging environmental clearances granted to infra- structure projects. Shibani is also a Research Associate at the Centre for x List of contributors and Editorial Board members Policy Research, New Delhi, and a member of the Legal Initiative for Forest and Environment (LIFE), New Delhi. She has previously worked as a legal consultant with the Central Information Commission, a quasi-judicial body set up under the Right to Information Act, 2005. Shibani holds the following degrees: B.A., LL.B. (Hons), B.C.L. (Oxon) and M.Sc. in Environmental Change and Management (Oxon).

j a n g l a z e w s k i i s P r o f e s s o r i n t h e I n s t i t u t e o f M a r i n e a n d Environmental Law at the Faculty of Law, University of Cape Town. He holds postgraduate degrees in law and Environmental Studies from the University of Cape Town, and a postgraduate law degree from the University of London. He is an Advocate of the High Court of South Africa and a member of the Cape Bar.

silke goldberg , m.a., pg.d.l. is a Paris-based Senior Associate in Herbert Smith’s Global Energy practice and a Research Fellow in Energy Law at Rijksuniversiteit Groningen (Netherlands). Silke has experience in advising on energy and climate change transactions internationally as well as in European energy law and policy. She has published on issues of European energy law, emission trading and supply security.

p r o f e s s o r j o s e j u a n g o n z a l e z , h o l d s a d e g r e e i n l a w ( M e x i c o , 1981), an LL.M. in Economic Law (Mexico, 1984) and a Ph.D. in Environmental Law (Spain, 1999). He is a full Professor and Researcher at the Metropolitan Autonomous University in Mexico and head of its Environmental Law Ph.D. Among numerous other roles, he chairs the Mexican Institute for Environmental Law Research and is Director of the Mexican Environmental Law Journal . He has written several books and draft ed the current Environmental Act of Mexico City.

max gutbrod has been a Partner in the Moscow offi ce of Baker & McKenzie for fi fteen years and co-heads the fi rm’s Russian Climate Change and Energy Effi ciency Practice. In 2004, he started advising major foreign companies and Russian and foreign regulators on various climate change and energy effi ciency matters (including Kyoto Protocol- related issues).

deng haifeng is an Associate Professor of the law school of Tsinghua University, China, and General Secretary of its Centre for Environmental, Natural Resource and Energy Law. He is a Director of both the List of contributors and Editorial Board members xi Environmental Law Research Society of the China Law Science Society and the Environmental Law Research Society of Beijing Law Science Society, and the Associate General Secretary of the Environmental Law Society of the China Environmental Science Society.

p a t r i c i a k a m e r i - m b o t e i s a P r o f e s s o r o f L a w a t S t r a t h m o r e University. She studied law in Nairobi (LL.B., 1987), Warwick (LL.M. in Law and Development, 1989), Zimbabwe (Post-graduate Diploma in Women’s Law, 1995) and Stanford (J.S.M., 1996 and J.S.D., 1999). Among other roles, she is an Advocate of the High Court of Kenya and Director of the International Environmental Law Research Centre. She has published widely on environmental law, women’s rights and property rights.

j o s i k h a t a r i n a h a s b e e n w o r k i n g i n t h e fi eld of environmental law for twelve years and is a senior researcher at the Indonesian Center for Environmental Law (ICEL). She was the coordinator of the civil society coalition which shaped the development of the Indonesian Freedom of Information Act 2008. She is currently an Assistant of the Presidential Task Force to Combat Corruption in the Enforcement System.

p r o f . d r h a n s - j o a c h i m k o c h i s P r o f e s s o r a t t h e U n i v e r s i t y o f Hamburg (Emeritus, 2010) and is a founder of the Research Centre for Environmental Law at the University of Hamburg. From 2002–08 he was Chairman of the German Advisory Council on the Environment (SRU) and, since 2005, has been Chairman of the Association for Environmental Law ( Gesellschaft für Umweltrecht e. V ) .

lu d w i g k r ä m e r st u d i e d l a w a n d h i s t o r y i n K i e l , M u n i c h a n d P a r i s and has an LL.D. from Hamburg University. Until 2004, he was both a Judge at the Landgericht, Kiel and an Offi cial of the Commission of the European Communities. He is a Visiting Professor at University College London and was, until 2010, Lecturer at the College of Europe, Bruges. He has published some twenty books and more than two hundred articles on EU environmental law.

bartosz kuraś, ll.m. is a lawyer in the Environmental Law Practice Group and M & A Group at Wardyński & Partners. He graduated from the Faculty of Law and Administration at the Adam Mickiewicz University in Poznań (2006) and the Faculty of Law at the Albert-Ludwigs-Universität in Freiburg (2008) and is currently working to obtain a Ph.D. in the xii List of contributors and Editorial Board members Agricultural Law Department at the Adam Mickiewicz University in Poznań. r i c h a r d l o r d q c i s a c o m m e r c i a l l i t i g a t o r w i t h o v e r t w e n t y - five years’ experience, particularly of international disputes in the Commercial Court and in arbitration. His specialist subjects are insurance and maritime law, and he has also developed a particular interest in private law aspects of climate change. He acts as a mediator and arbitrator, and has written textbooks on Bills of Lading and the Arbitration Act. michael lührs studied law in Berlin and is an Attorney at Law. He specialised in emissions trading and planning law and is currently work- ing on his Ph.D. on climate liability in German civil law. de n n i s ma h o n y is t h e h e a d o f T o r y s ’ E n v i r o n m e n t a l , H e a l t h a n d Safety Practice Group and Co-Chair of the fi rm’s interdisciplinary Climate Change and Emissions Trading Practice. He is the International Vice- Chair of the Energy and Environmental Markets and Finance Committee of SEER and the editor and one of the principal authors of Law of Climate Change in Canada. He is certifi ed by the Law Society of Upper Canada as a Specialist in Environmental Law. fiona mucklow cheremeteff is an English solicitor and a non- resident Research Associate at the TMC Asser Institute in Th e Hague. Fiona’s practice focuses primarily on banking, fi nance, environmental (climate change) and public international law matters. She is co-editor of Environmental Finance and Socially Responsible Business in Russia: Legal and Practical Trends (2010). dr collins odote holds LL.B., LL.M. and Ph.D. degrees in law from the University of Nairobi. He teaches environmental jurispru- dence, land use and international environmental law at the University of Nairobi and is currently engaged as a postdoctoral research fellow at Strathmore University. He also chairs the Board of Th e Institute for Law and Environmental Governance (ILEG), a Nairobi-based NGO.

l a v a n y a r a j a m a n i is a P r o f e s s o r a t t h e C e n t r e f o r P o l i c y R e s e a r c h , New Delhi. She was previously a university Lecturer in Environmental Law, and Fellow and Director of Studies in Law at Queens’ College, Cambridge. She is author of Diff erential Treatment in International Environmental Law (2006), co-editor of Promoting Compliance in an Evolving Climate Regime List of contributors and Editorial Board members xiii (Cambridge University Press, 2011), Implementation of International Environmental Law (2011) and numerous articles. She has worked as a Consultant to the UN Framework Convention on Climate Change Secretariat, the Indian Ministry of Environment and Forests, the Danish Ministry of Climate Change and Energy, the UNDP, the World Bank and the Alliance of Small Island States.

d a r i a r a t s i b o r i n s k a y a i s a n e n v i r o n m e n t a l l a w y e r w h o h a s e x - perience in both European and national environmental law in Moscow, Brussels and Amsterdam. She read law at the MGIMO-University of Moscow and was awarded an LL.M. in International and European Environmental Law from the University of Amsterdam. She currently combines lecturing and doctorate research at the Erasmus University of Rotterdam.

i s s i r o s e n - z v i t e a c h e s E n v i r o n m e n t a l L a w , L o c a l G o v e r n m e n t L a w , Administrative Law and Civil Procedure at the Faculty of Law, Tel Aviv University. He obtained his LL.B. ( magna cum laude) from Bar-Ilan University, his LL.M. in law and sociology (summa cum laude ) from Tel Aviv University and his J.S.D. from Stanford Law School. He has published several articles and a book entitled Taking Space Seriously (2004).

mas achmad santosa is a founder and Board Chairperson of the Indonesian Center for Environmental Law (ICEL) and has been a Senior Lecturer in Environmental Law in the law school, University of Indonesia since 1990. In 2010 he was appointed by the President of the Republic of Indonesia as Acting Commissioner for the Corruption Eradication Commission. He is a member of the Presidential Task Force to Combat Corruption in the Enforcement System and the Commission on Environmental Law of IUCN, and is Senior Advisor for Human Rights, Legal Reform and Access to Justice of UNDP Indonesia.

s e r g e i s i t n i k o v c o - h e a d s t h e R u s s i a n C l i m a t e C h a n g e a n d E n e r g y Effi ciency Practice in Baker & McKenzie’s Moscow offi ce. He regularly participates in Russian and international conferences and advises clients on issues relating to the development of energy effi ciency related projects and the implementation of the Kyoto Protocol. He has written numer- ous journal articles and is co-author of Trading in Air: Mitigating Climate Change through the Carbon Markets (2010). xiv List of contributors and Editorial Board members alex smith is a Litigator at Torys LLP in Toronto and a contributing author to Th e Law of Climate Change in Canada .

p e d r o l u c a s d e m o u r a s o a r e s i s a n i n d e p e n d e n t e n v i r o n m e n t a l lawyer in Natal-RN, Brazil.

d r t i m s t e p h e n s b . a . ( h o n s ) , l l . b . ( h o n s ) ( s y d . ) , m . p h i l . (cantab), ph.d. (syd.) is a Senior Lecturer at the Faculty of Law, University of Sydney, Co-Director of the Sydney Centre for International Law and co-editor of the Asia Pacifi c Journal of Environmental Law. He has published widely, including International Courts and Environmental Protection (Cambridge University Press, 2009). He received the 2010 IUCN Academy Junior Scholarship Prize for his environmental law research.

m a c i e j s z e w c z y k i s a l a w y e r i n t h e E n v i r o n m e n t a l L a w P r a c t i c e Group and M & A Group at Wardyński & Partners, specialising in envir- onmental protection law as well as M & A transactions. He graduated from the Faculty of Law and Administration at the Adam Mickiewicz University in Poznań (2007).

yu k a r i ta k a m u r a is a P r o f e s s o r i n i n t e r n a t i o n a l l a w a t N a g o y a University, Japan, specialising in international environmental law and cli- mate law and policy. She has published many books and articles, includ- ing the recently published ‘Do markets matter? Th e role of markets in the post-2012 international climate regime’ in T. Sawa, S. Iai and S. Ikkatai (eds.), Achieving Global Sustainability (2011).

d r . r o d a v e r h e y e n is a p r a c t i s i n g A t t o r n e y a t L a w i n t h e H a m b u r g law fi rm Rechtsanwälte Günther and former Director of the Climate Justice Programme. She has experience of and is bringing cases arguing climate change in planning law (road construction, waterways, municipal land-use plans), licensing of coal plants, and under coastal protection and water law.

d o m i n i k w a ł k o w s k i i s a l a w y e r i n t h e E n v i r o n m e n t a l L a w Practice Group at Wardyński & Partners, specialising in environmental protection law. He graduated in International Relations (majoring in European Law, Economy and Culture) from the Adam Mickiewicz List of contributors and Editorial Board members xv University in Poznań (2003) and from the university’s Faculty of Law and Administration (2004), and is currently working to obtain a Ph.D. in the Department of International Public Law at the Adam Mickiewicz University in Poznań. g r e g w a n n i e r i s a P o s t - d o c t o r a l R e s e a r c h S c h o l a r a n d D e p u t y Director of the Center for Climate Change Law (CCCL) at Columbia Law School. He received his J.D. from Stanford Law School, where he served as President of the Environmental Law Society and editor-in-chief of the Stanford Journal of Law, Science & Policy. He also graduated summa cum laude from UCLA with a joint B.A./B.S. in International Politics and Evolutionary Biology, and earned a Master’s degree in Environmental Policy from the E-IPER program at Stanford University’s School of Earth Sciences. t o m a s z w a r d y ń s k i , c b e , i s a n adwokat and founding partner of Wardyński & Partners. He is listed as an Arbitrator at the Polish Chamber of Commerce’s Court of Arbitration, the Arbitration Court at the Polish Confederation of Private Employers Lewiatan, and the International Arbitral Centre of the Austrian Federal Economic Chamber (VIAC) in Vienna. He is a member of the Warsaw Bar. Tomasz Wardyński is active in the International Bar Association, in particular its Legal Practice Division. y a n k o m a r c i u s d e a l e n c a r x a v i e r i s f u l l P r o f e s s o r , F a c u l t y o f Law, Universidade Federal do Rio Grande do Norte-UFRN, Natal-RN, Brazil, Chair of the Natural Resources and Energy Law Research Group and Member of the Academic Advisory Group of the International Bar Association’s section on Energy, Environment, Natural Resources and Infrastructure Law. l a m i a a y o u s s e f is a n a d m i t t e d E g y p t i a n a t t o r n e y a n d h e a d s t h e P r o Bono Department of law fi rm Sharkawy & Sarhan. She is currently en- rolled in the LL.M. in International and Comparative Law at the American University in Cairo. i z a b e l a z i e l i ń s k a - b a r ł o ż e k i s a l e g a l a d v i s e r a n d P a r t n e r , l e a d - ing the Environmental Law Practice Group at Wardyński & Partners and specialising in environmental protection law as well as corporate and commercial transaction law. She is a Vice Chair of the Environmental Law Practice for Europe/Middle East/Africa in Lex Mundi. xvi List of contributors and Editorial Board members

Editorial Board members b e n b o e r is E m e r i t u s P r o f e s s o r i n E n v i r o n m e n t a l L a w a t t h e U n i v e r s i t y of Sydney. Formerly, he was Professor in Environmental Law. He con- tinues to teach in various units of study in the Master’s programme. He has published widely in the area of environmental and natural resources law and policy, and is currently focusing his research on biodiversity, climate change and protected areas law. For further information and publications see http://sydney.edu.au/law/about/staff /BenBoer/.

james cameron is the founder and Vice Chairman of Climate Change Capital. A barrister, entrepreneur and pre-eminent expert in develop- ing policy response to climate change, James represents the fi rm at the highest levels of business and government. He is a member of the Prime Minister’s Business Advisory Group, GE’s Ecomagination Advisory Board and Pepsico UK’s Advisory Board, and Chairman of the World Economic Forum’s Agenda Council on Climate Change.

daniel farber is the Sho Sato Professor of Law and Chairman of the Energy and Resources Group at the University of California, Berkeley. He is also the Faculty Director of the Center for Law, Energy, and the Environment. Professor Farber is a member of the American Academy of Arts and Sciences and a life member of the American Law Institute.

s i r s y d n e y k e n t r i d g e q c w a s a d m i t t e d a s a n A d v o c a t e o f t h e Supreme Court of South Africa in 1949 and appointed Senior Counsel in 1965. He was called to the English Bar (Lincoln’s Inn) in 1977, join- ing 1 Brick Court (now Brick Court Chambers) and took Silk in 1984. He has been Chairman of the Johannesburg Bar (1972–89), a Judge of Appeal in Botswana (1981–89), a Judge of the Courts of Appeal of Jersey and Guernsey (1988–92) and an Acting Justice in the South African Constitutional Court (1995–6). His practice covers all fi elds of consti- tutional law, human rights law and commercial law.

richard macrory qc is a barrister and Professor of Law at University College London where he is Director of the Centre for Law and the Environment and the UCL Carbon Capture Legal Programme. Professor Macrory has been a board member of the Environment Agency in England and Wales, and a member of the Royal Commission on List of contributors and Editorial Board members xvii Environmental Pollution. He was fi rst Chairman of the UK Environmental Law Association and is currently a Patron of the Association.

m. c. mehta is a noted environmental lawyer in the Supreme Court of India. He has been successful in obtaining landmark judgments and orders for the protection of the environment, human rights and the cul- tural heritage of India. He has been instrumental in the advancement of the Right to a Healthy Environment, the Public Trust Doctrine, the principle of Strict and Absolute Liability, and the Exemplary Damages, Polluter Pays and Precautionary principles through Environmental Public Interest litigation. He also believes in working at the grassroots level in order to create awareness of the environment, conservation and protection of natural resources through peoples’ movements. He has been presented with many awards, including the UNEP Global 500 Award, the Ramon Magsaysay Award for Asia and the Goldman Environmental Prize for Asia.

p h i l i p p e s a n d s q c i s a b a r r i s t e r a t M a t r i x C h a m b e r s , p r a c t i s i n g i n public international law. He appears regularly before English and inter- national courts. He is a Professor of Laws and Director of the Centre of International Courts and Tribunals at University College London. He is author of Torture Team: Rumsfeld’s Memo and the Betrayal of American Values (2008) and Lawless World: America and the Making and Breaking of Global Rules (2005, 2006).

so n g yi n g is A s s o c i a t e P r o f e s s o r o f P u b l i c I n t e r n a t i o n a l L a w a t t h e School of Law of Peking University, China. She is a member of the editor- ial board of the Chinese Yearbook of International Law. Her main research areas are international environmental law and the external relations law of the European Union. She acts as expert and counsel for China and vari- ous international organisations.

jaap spier obtained his Mag. Iuris from Erasmus University, Rotterdam and his Ph.D. (Doctor iuris) from Leyden University (1981). He is Attorney- General in the Supreme Court of Th e Netherlands, Honorary Professor of Comparative Insurance Law at Maastricht University and founder and Honorary President of the European Group on Tort Law. He is the author and editor of various books and articles, including in the fi eld of climate c h a n g e . F O R E W O R D

Mary Robinson, Honorary President Oxfam International and President of Mary Robinson Foundation – Climate Justice

Climate justice links human rights and development to achieve a human- centred approach, thus safeguarding the rights of the vulnerable and shar- ing the burdens and benefi ts of climate change and its resolution equitably and fairly. As such, climate justice incorporates the principle of corrective justice – the idea that those who have contributed most to the global stock of greenhouse gas emissions have a moral obligation to make signifi cant emissions reductions in order to avoid dangerous climate change. Th is is necessary as the countries and people who are most vulnerable to climate change are those who contributed least to the problem. Climate justice can also be used to assign liability for past and projected contributions to climate change. Th is can assist the most marginalised and disenfranchised in our global community to fi nd justice through the courts, thus paving the path for fi nancial reparations through distribu- tive justice. It can also be used, along with moral suasion and multi-lateral political and legal agreements, to insist on equitable burden-sharing and greater equality through fi nancial assistance and technology transfer. However, assigning climate change liability for those seeking redress or basic compensation from corporations or governments who refuse to act and who are seen to have violated basic human rights creates a number of problems. First, it is diffi cult to establish causality between the harm done or tortious act and the direct damage suff ered. Secondly, it is diffi - cult to establish liability and apportion damages accordingly. Th irdly, it may be diffi cult to establish legal standing or locus standi for petitioners before the courts. Th is book sets out the legal principles underpinning climate change liability. It off ers an extensive and comprehensive overview of national cli- mate change policies and legislation as well as diff erent rights-based legal

xviii foreword xix arguments in various jurisdictions that could be used to achieve climate justice at a national level. Notwithstanding the climate justice opportun- ities potentially aff orded by litigation, the need for a new legally binding agreement under the United Nations Framework Convention on Climate Change (UNFCCC) remains vital. Only a legally binding international framework can ensure that actions will be taken to reduce emissions and to protect the most vulnerable from the potentially catastrophic impacts of climate change. A C K N O W L E D G E M E N T S

We acknowledge with gratitude the support and assistance which we, and this book, have received from so many quarters. All those associated with this project have given generously of their time and their wisdom. Some deserve particular recognition. We owe a debt of gratitude to those who fi rst conceived the idea of a comparative study of national laws pertaining to climate change liability, and especially to Jaap Spier, Advocate-General in the Supreme Court of the Netherlands and Honorary Professor of comparative insurance law at Maastricht University. We are pleased to have Professor Spier as an Editorial Board member, providing continuity between the fi rst seeds of an idea and the current book. Whilst the book is a rigorous academic study independent from any political infl uence by any organisation, we would like to thank Jasper Teulings, General Counsel of Greenpeace International, Joss Saunders, General Counsel of Oxfam and Niall Watson, Programmes Legal Adviser at WWF-UK for their continued support and encouragement. Special thanks are also due to Oxfam for funding a conference in January 2011 which enabled authors and editors of this book to exchange ideas and which sowed the seeds for a very fruitful cooperation between authors across various jurisdictions. All of the authors and Editorial Board members have toiled diligently, and without complaint or reward, to create what we hope is a rich store of information and learning and distil it into a book which, if not quite pocket size, will be portable and accessible to many. Cambridge University Press, our publishers, have been supportive and understanding of the diffi culties in fi nalising within a short timeframe a book to which so many have contributed. We are grateful to them in making possible our ambition to publish the book in time for COP 17 in Durban. Finally, and in a class of her own, it is impossible to overstate the importance of the pivotal role in this book played by Pascale Bird, our xx Acknowledgements xxi project manager. She has spent uncounted and uncountable hours in keeping the project and its numerous participants on track, with unfail- ing patience, good humour and dedication, and has engaged in a huge variety of tasks from the almost sublime to the immensely tedious. Without Pascale, there would have been no book. We have endeavoured to ensure that the law and factual material stated is correct as at 31 March 2011 except where otherwise stated in the rele- vant chapter. Each editor and contributing author is acting solely in their individual private capacity. Any information presented, and any views or opinions expressed, do not represent the views of any employing institution and should not be ascribed to the same.

A B B R E V I A T I O N S

A A U : A s s i g n e d A m o u n t U n i t s A C E S A : U S A m e r i c a n C l e a n E n e r g y a n d S e c u r i t y A c t A F ( B ) : A d a p t a t i o n F u n d ( B o a r d ) AGF: Advisory Group on Climate Change Financing A I J : A c t i v i t i e s I m p l e m e n t e d J o i n t l y ALBA: Bolivia, Cuba, Ecuador, Nicaragua and Venezuela Annex I Parties: Australia, Austria, Belarus, Belgium, Bulgaria, Canada, Croatia, Czech Republic, Denmark, Estonia, European Union, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Poland, Portugal, Romania, Russian Federation, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, United Kingdom and the United States of America. A O S I S : A l l i a n c e o f S m a l l I s l a n d S t a t e s AWG-KP: Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol A W G - L C A : A d H o c W o r k i n g G r o u p o n L o n g T e r m C o - o p e r a t i v e A c t i o n under the Framework Convention on Climate Change B A P : B a l i A c t i o n P l a n 2 0 0 7 BASIC: Brazil, South Africa, India and China B A U : B u s i n e s s A s U s u a l BRIC: Brazil, Russia, India and China CACAM: Central Asia, Caucasus, Albania and Moldova C A N : C l i m a t e A c t i o n N e t w o r k C B D : C o n v e n t i o n o n B i o l o g i c a l D i v e r s i t y C B D R : C o m m o n B u t D i ff erentiated Responsibilities C C : C o m p l i a n c e C o m m i t t e e C C L : C l i m a t e C h a n g e L e v y C C S : C a r b o n C a p t u r e a n d S t o r a g e C D E : C a r b o n D i o x i d e E q u i v a l e n t ( i n g / k g / t ) C D M : C l e a n D e v e l o p m e n t M e c h a n i s m C D P : C a r b o n D i s c l o s u r e P r o j e c t xxii list of Abbreviations xxiii

C E R s : C e r t i fi ed Emission Reductions (issued by CDM) C G E : C o n s u l t a t i v e G r o u p o f E x p e r t s o n N a t i o n a l C o m m u n i c a t i o n s f r o m Parties not included in Annex I Parties CMP: Conference of the Parties serving as the Meeting of the Parties to the Kyoto Protocol C O P : C o n f e r e n c e o f t h e P a r t i e s t o t h e K y o t o P r o t o c o l CRF: Common Reporting Format (for all Annex I Parties) C R P s : C o n f e r e n c e R o o m P a p e r s CTCN: Climate Technology Centre and Network D E R : D i r e c t E m i s s i o n R e d u c t i o n D N A : D e s i g n a t e d N a t i o n a l A u t h o r i t y E C B I : E u r o p e a n C a p a c i t y B u i l d i n g I n i t i a t i v e E C H R : E u r o p e a n C o n v e n t i o n o n H u m a n R i g h t s E C J : E u r o p e a n C o u r t o f J u s t i c e E G T T : E x p e r t G r o u p o n T e c h n o l o g y T r a n s f e r E I A : E n v i r o n m e n t a l I m p a c t A s s e s s m e n t E I A : E n v i r o n m e n t a l I n v e s t i g a t i o n A g e n c y E I T : C o u n t r i e s w i t h E c o n o m i e s i n T r a n s i t i o n E P A : U S E n v i r o n m e n t a l P r o t e c t i o n A g e n c y E R P A : E m i s s i o n R e d u c t i o n P u r c h a s e A g r e e m e n t E R R s : E m i s s i o n R e d u c t i o n R i g h t s E R U : E m i s s i o n R e d u c t i o n U n i t E T S : E m i s s i o n s T r a d i n g S y s t e m E U E T S : E u r o p e a n U n i o n E T S E U A : E u r o p e a n U n i o n A l l o w a n c e s G-77/China: Coalition of 77 developing nations and China GCF: Green Climate Fund/Global Climate Fund/Governors’ Climate and Forest Task Force G E F : G l o b a l E n v i r o n m e n t a l F a c i l i t y G H G : G r e e n h o u s e G a s G N I : G r o s s N a t i o n a l I n c o m e G W P : G l o b a l W a r m i n g P o t e n t i a l I C A : I n t e r n a t i o n a l C o n s u l t a t i o n a n d A n a l y s i s I C A O : I n t e r n a t i o n a l C i v i l A v i a t i o n O r g a n i s a t i o n ICSTD: International Centre for Trade and Sustainable Development I E T : I n t e r n a t i o n a l E m i s s i o n s T r a d i n g IIED: International Institute for Environmental Development and Policy I I G C C : I n s t i t u t i o n a l I n v e s t o r s G r o u p o n C l i m a t e C h a n g e IISD: International Institute for Sustainable Development I M O : I n t e r n a t i o n a l M a r i t i m e O r g a n i s a t i o n I N C R : I n v e s t o r N e t w o r k o n C l i m a t e R i s k IPCC: Intergovernmental Panel on Climate Change xxiv list of Abbreviations

I T L : I n t e r n a t i o n a l T r a n s a c t i o n L o g J I : J o i n t I m p l e m e n t a t i o n L D C F : L e a s t D e v e l o p e d C o u n t r i e s F u n d LDCs: Least Developed Country Parties L E G : L e a s t D e v e l o p e d C o u n t r i e s E x p e r t G r o u p L R I : L e g a l R e s p o n s e I n i t i a t i v e LRTAP: Convention on Long Range Transboundary Air Pollution L U : L a n d U s e LULUCF: Land Use, Land Use Change and Forestry M D B : M u l t i l a t e r a l D e v e l o p m e n t B a n k M R V : M o n i t o r i n g , R e p o r t i n g a n d V e r i fi cation M V C : M o s t V u l n e r a b l e C o u n t r y N A I : N o n - A n n e x I C o u n t r i e s NAMAs: Nationally Appropriate Mitigating Actions N A P A s : N a t i o n a l A d a p t a t i o n P r o g r a m m e s o f A c t i o n ( f o r L D C s ) N W P : N a i r o b i W o r k P r o g r a m m e O D A : O ffi cial Development Assistance O E C D : O r g a n i s a t i o n f o r E c o n o m i c C o - o p e r a t i o n a n d D e v e l o p m e n t O L C A : O v e r s e a s L o w C a r b o n A i d P L O : P u b l i c L i a i s o n O ffi cer Q E L R C : Q u a n t i fi ed Emissions Limitation or Reduction Commitments Q E L R O : Q u a n t i fi ed Emissions Limitation and Reduction Objectives REDD+: Reducing Emissions from Deforestation and Forest Degradation in developing countries (Supporting forest conservation, sustainable management of forests and enhancement of forest carbon stocks) R O C : R e n e w a l O b l i g a t i o n C e r t i fi cate S B I : S u b s i d i a r y B o d y f o r I m p l e m e n t a t i o n S B S T A : S u b s i d i a r y B o d y f o r S c i e n t i fi c and Technological Advice S C C F : S p e c i a l C l i m a t e C h a n g e F u n d S I C A : C e n t r a l A m e r i c a n I n t e g r a t i o n S y s t e m S I D S : S m a l l I s l a n d D e v e l o p i n g S t a t e s T E C : T e c h n o l o g y E x e c u t i v e C o m m i t t e e U N C C D : U n i t e d N a t i o n s C o n v e n t i o n t o C o m b a t D e s e r t i fi cation UNDRIP: United Nations Declaration on Rights of Indigenous Peoples UNEP: United Nations Environment Programme UNEPFI: United Nations Environment Programme Finance Initiative UNFCCC: United Nations Framework Convention on Climate Change V C U s : V o l u n t a r y C a r b o n U n i t s V E R : V o l u n t a r y E m i s s i o n R e d u c t i o n s W B C S D : W o r l d B u s i n e s s C o u n c i l o n S u s t a i n a b l e D e v e l o p m e n t