Table of Contents

Elgar Encyclopedia of Environmental Law

Elgar Encyclopedia of Environmental Law

Edited by Michael Faure

The Elgar Encyclopedia of Environmental Law is a landmark reference work, providing definitive and comprehensive coverage of this dynamic field. The Encyclopedia is organised into 12 volumes around top-level subjects – such as water, energy and climate change – that reflect some of the most pressing issues facing us today. Each volume probes the key elements of law, the essential concepts, and the latest research through concise, structured entries written by international experts. Each entry includes an extensive bibliography as a starting point for further reading. The mix of authoritative commentary and insightful discussion will make this an essential tool for research and teaching, as well as a valuable resource for professionals and policymakers.

Chapter I.56: The emergence of global climate law *

Daniel A Farber and Marjan Peeters

Subjects: environment, environmental law, law - academic, environmental law

I.56.1 The dynamic and multidisciplinary character of climate law

This chapter aims to identify the major themes that emerge from the previous 55 chapters, which have discussed many different areas of climate law. After considering just how to define the field, we will look at the role of global versus polycentric activity and the special role played by the courts in this area. We close by sketching some of the most p. 688important areas for future research that emerge from the chapters and the impact of the recent Paris negotiations on global climate law.

The starting point is to define the emerging field of ‘climate law’. The organizing concept of environmental law is functional: the protection and improvement of environmental conditions. As a sub-field of environmental law, climate law might be characterized by a similar goal: the protection of people and planet against global warming by seeking and enforcing ways to reduce greenhouse gas (GHG) emissions. 1 But protection against global warming by reducing GHGs is not the only focus of climate law. Serious warming of the planet already seems underway, the degree of which is influenced by the stringency of mitigation efforts. Accordingly, increasing attention is paid to another goal, the adaptation of society and the environment to climate change effects, thereby often prioritizing attention to the most vulnerable people, species and areas. The two subjects are connected by more than their common link to climate science, however, because of their interdependence: the need for adaptation is influenced by the degree of mitigation, while the need for mitigation is influenced by the potential to avoid harmful impacts through adaptation. 2 In sum, the pillars of climate law are mitigation (the reduction of GHGs) and adaptation (taking measures against the negative effects of climate change).

Given these two functional aims, and their many ramifications, all disciplines of law are relevant as far as they can play a role in achieving these aims. In this sense, climate law is necessarily a multidisciplinary field of law, which poses ‘climate lawyers’ with the difficult task of mastering different disciplines of law, including inter alia international public law, administrative law, tort law, insurance law and land use law. Each of these disciplines can contribute to the immense societal challenge of addressing effectively the negative effects of climate change, either through mitigation or adaptation (or both).

However, the acknowledgement that different disciplines of law are important for addressing climate change does not capture all of the manifold complexities that climate law researchers face. A number of additional challenges can be mentioned. First, the important question of how law relates to science is the starting point for climate law. Here, different issues are at stake, like the institutional aspects of scientific organizations or bodies like the Intergovernmental Panel on Climate Change (IPCC) (including the question of how accountability and transparency of scientific processes have been organized) and, importantly, how scientific findings influence decisions of governments and courts. It is for this reason that this Encyclopedia opened with three chapters respectively dealing with science, the precautionary principle and climate economics. 3 One can already see that doing legal research solely on this science–policy–law nexus is a challenging task, particularly given that climate science itself involves many disciplines within physics, chemistry and biology. That task should not be undertaken with an isolated focus on climate change, but should take into account how this science–law nexus p. 689is being developed and researched in other areas of environmental law, such as the field of genetically modified organisms or nanotechnology. In this respect, we see the emergence of a specialized field, with its own specialist publications and books, aiming to understand the role of law regarding risks for society. 4 For climate lawyers who want to focus on the science–law nexus, including the role of the precautionary principle, it will be important to learn from those broader discussions regarding law and environmental risks. 5

Secondly, the emergence of subfields of climate law can already be detected. One example is the study of regulatory approaches for reducing GHGs, among which the market-based instrument of emissions trading has thus far received the most attention in literature. Initially, economists led the scholarly debate, stressing the usefulness of emissions trading along with emission taxes, and legal literature played only a secondary role at the end of the last century. Nowadays, however, environmental law journals and specialized climate law journals pay ample attention to GHG emissions trading. Since this instrument is applied in practice in the European Union and elsewhere, case law has emerged which leads to commentaries by legal scholars. 6 All in all, one can see that a tremendously large body of legal literature has emerged regarding emissions trading. So much attention from legal scholarship to emissions trading may pose the risk that other possible adequate regulatory approaches may be overlooked. This Encyclopedia gives attention to those other mechanisms in the chapters on instrument choice, 7 traditional regulation, 8 corporate social responsibility, 9 individual behaviour, 10 and carbon taxes. 11 Another sub-field that has given rise to specialized expertise in terms of regulatory approaches is renewable energy. That sub-field itself contains complicated topics meriting in-depth attention, as is shown in the chapters on biofuel regulations, support schemes, and public acceptance. 12 Beyond that topic, specific regulatory approaches may also be developed for energy efficiency and energy conservation. 13

On the side of climate adaptation, one can point to issues pertaining to water, including adaptation to decreases in water supply in some areas due to climate change and on p. 690the other hand to the risk of increased flooding in some areas. The linkage here is with water law and disaster law as disciplines within law, with special connections to non-legal fields such as natural resource economics, civil engineering and hydrology.

Thirdly, as can be learnt from some chapters in this Encyclopedia, we have to recognize that many questions in the area of climate change cannot be solved in isolation from other areas of law. For example, the chapter on environmental justice shows that to ensure that adaptation efforts serve the goal of social justice, adaptation attempts should be mainstreamed into other activities rather than developed in isolation. 14 Hence, in order to understand how justice can be understood and ensured in climate adaptation, lawyers need to expand their analysis to an integrated assessment of how adaptation fits into public policies such as land planning. These issues are discussed in the chapters regarding water 15 and land. 16 Another example can be derived from the field of trade law, including international investment law. Clearly, the legality of unilateral climate measures must be analysed with regard to the complex international trade law regime, rather than fitting solely within the domain of climate law. 17 Because of the felt necessity to adopt unilateral climate measures, the World Trade Organization (WTO) regime could even be stretched towards providing more flexibility for environmental measures generally. Regarding international investment law, it has even been suggested that climate change-related investment disputes could be excluded from common investment arbitration approaches. 18 Likewise, issues relating to non-CO2 GHGs and to emissions from international transport inevitably involve existing global treaties governing these specific sectors, raising the question whether adequate and sufficiently effective approaches for reducing GHGs can ever be developed under frameworks that have other goals than environmental protection. 19 Similarly, the validity of sub-national mitigation efforts will depend on domestic constitutional law, and the efforts of European countries must be considered through the lens of EU law, including the regime for the internal market. 20

Fourthly, the importance of the various sub-disciplines and specialist topics of climate law may vary over time. Climate policy is not static, and, depending on the progress of international negotiations, international law may be more or less a focal field of research. When (and if) a powerful international agreement can be reached, with strong p. 691commitments and an effective compliance mechanism, 21 international law scholars will take the lead in discussing the content and enforcement of these provisions. However, absent a powerful international approach, the emergence of bottom-up approaches, even at the municipal level, attracts scholarly attention, 22 which, for instance, may lead to complex discussions of whether unilateral action by a state is compatible with international trade law. Another obvious example of the varying importance over time of sub-disciplines of climate law is the relationship between mitigation and adaptation; roughly speaking, adaptation will become even more important if mitigation largely fails to deliver sufficient results. If mitigation seems to be faltering, geo-engineering may then take a more central role in policy discussions.

Fifthly, since climate change is a global problem, all jurisdictions will be affected by it, albeit to different extents. Since so many jurisdictions are involved, with very different legal cultures and foundations, comparative legal research is both necessary and challenging, since it assumes the capacity of scholars to study different jurisdictions. To give an example: article 6 of the United Nations Framework Convention on Climate Change (UNFCCC) mandates informing the public about climate change, but the implementation of such a vaguely formulated treaty provision in national law may vary widely across jurisdictions. Comparative research is needed to understand how the basic idea of public information about climate change, including rights for the public to enforce this access in the courts, can be best put into a legal framework. Comparative research will undoubtedly also be useful in the field of instrument choice, in order to understand how exactly the rights of industries will be determined in case of an emissions trading regime, and how, in this respect, courts will decide on these rights. Legal scholars need to think through how comparative research may provide a better understanding of how to provide sound legal provisions in the field of mitigation and adaptation, thereby facing the methodological question of how to compare jurisdictions from developed and developing countries. 23 Several chapters in this Encyclopedia address such issues, with a focus on climate law scholarship in developing countries. 24

Cooperation among legal scholars is an urgent need, given the fact that climate law is a dynamic, multidisciplinary field of law, covering many jurisdictions with different economies (which also change over time), and many specific issues, with connections to many other legal fields. This may be the first important overall conclusion of this Encyclopedia: having read all the chapters, we have come to realize that the field of climate law is beyond the capacity of individual legal scholars to master comprehensively, which means that cooperation and exchange of legal scholarship is critical.

I.56.2 p. 692A polycentric or global climate law?

Tsemin Yang and Robert Percival have discussed the emergence of global environmental law, which they define as a ‘set of legal principles developed by national, international, and transnational environmental regulatory systems to protect the environment and manage natural resources’, made up of a distinct set of procedural and substantive principles originating from national, international and transnational systems. 25 One may ask whether a global climate law can also be detected that includes a set of common procedural and substantive principles. Although it is perhaps too early yet to be sure, some features of an emerging global climate law have emerged that are distinct from the more general area of international environmental law.

One possible distinctive feature is the principle of Common but Differentiated Responsibility and Respective Capabilities as codified in UNFCCC Article 3(1), with its specific attention to the ‘respective capabilities’ (RC) of the jurisdictions across the world. 26 A lot of attention is paid to the principle of CBDRRC, most likely because of the inherent appeal of doing justice to the most vulnerable and least developed countries, but very little can be said, in an authoritative way, about how it should be legally applied, let alone whether it can be enforced before a court. Similar issues can arise at the regional or sub-international level. For instance, in the European Union, the distribution of GHG reduction commitments for the period 2013–20 among Member States was decided taking into account the economic situation of the respective countries but complemented by the possibility of trading commitments among Member States. 27 In this respect, the difficulty of how to deal with the huge social and economic differences among different regions in China can also be framed as a national distributional challenge. 28 Issues concerning CBDR also arise with unilateral measures, like the European Union’s effort to include aviation operators of third countries, including developing countries, in the EU Emissions Trading Scheme (ETS). 29 Here, the question can be put forward how, in such a unilateral measure, different commitments are or can be applied among operators from countries with different economies.

Secondly, one specific aspect of global climate law is the increasing application of GHG emissions trading in very different jurisdictions across the world, including the p. 693EU, the US and China, and within the Kyoto Protocol, for Annex I parties. Thus, expanding the analysis of Tsemin Yang and Robert Percival, we believe that global environmental law may consist of shared regulatory approaches as well as common procedural and substantive principles. At least, in the field of climate law, we can see a major preference for this specific instrument. But as David Driesen points out in chapter 34, there are good reasons to think that emissions trading is not a complete answer to the mitigation problem and supplementary or alternative measures may also be needed.

Thirdly, adaptation is generally a localized measure, and it is has received less scholarly attention than mitigation until recently. However, as it has received more attention from negotiators, some common themes are already beginning to emerge, such as the use of watershed-based planning. In addition, the use of marine preserves is a technique that is rapidly spreading across the world. 30 Given the highly fragmented nature of ocean law at present, these efforts may eventually result in a more integrated international regime. One aspect of adaptation, the problem of climate-displaced persons, seems inherently global in scope. 31 Another area where global efforts may prove especially important is adaptation financing, where international institutions are already beginning to play a key role. 32 Recently, the UN climate regime has recognized the need for an international compensation mechanism for loss and damage as a result of climate change, although many challenges for establishing this effectively remain unresolved. 33

At the same time, Daniel Cole has sketched the polycentric character of climate law, with his publication ‘From Global to Polycentric Law’. 34 With polycentrism, many centres of decision-making that are formally independent of each other determine the content of law while there may be interacting behaviour among these centres, and a truly polycentric system is one in which governmental units both compete and co-operate. 35 Cole argues that polycentrism, particularly regulatory action at the domestic level and through smaller-scale international arrangements, may be of more importance than at the global level. What might be considered polycentric action is discussed in chapters on polycentrism, 36 local government, 37 federalism, 38 urban planning, 39 disaster law 40 and insurance. 41 In our view, however, the analysis presented by Yang and Percival on the one hand and by Cole on the other are not truly contradictory: with polycentrism, which includes competition and cooperation among different centres of decision-making in the field of climate change, there is a chance for experimenting with and evaluating policies and identifying best practices. Competition among different possible solutions, like the application of different regulatory instruments, may enable further learning about best p. 694practices in different contexts. For instance, one can question whether in developing countries with as yet relatively weak legal systems the same legal provisions, such as emissions trading, should be used as in strong legal systems with more efficient and effective access to the courts and with stronger enforcement provisions and capacities.

In other words, a polycentric approach may contribute to the emergence, in the longer run, of a certain set of sound procedural, substantive and instrumental provisions of global climate law. In the meantime, it may remain important to duly consider alternative approaches and solutions. 42 This is particularly true with such an immense and global problem as climate change, because solutions may have to be fine-tuned to the specific characteristics of countries. It was the lawyer and philosopher Montesquieu who emphasized the importance of differentiation in the design of rules for society, and who warned against too easily seeking harmonized or common approaches. 43 And, perhaps, this need for differentiation can already be detected as a common feature of global climate law. One illustration is the UNFCCC’s prescription in article 4 of national plans and programmes. Other illustrations are the Kyoto Protocol, which leaves it to the discretion of the parties as to how to achieve their assigned commitments, and the self-setting of targets by countries in the Copenhagen Accord and in the run-up to Paris 2015. 44

To conclude, it is clearly too early to say global climate law has matured, we can only see some general features emerging in an embryonic stage. In the future, for instance in ten years from now, it will be interesting to re-evaluate how transplantation, convergence, integration and harmonization may be crystallizing the content of global climate law. 45

I.56.3 The courts as (global) climate law developers

Thus far, the number of climate litigation cases is uneven across jurisdictions. 46 Also, a high number of climate-related court decisions in a specific jurisdiction does not correspond to greater climate protection, as is illustrated by many project-based lawsuits. 47 However, a few court decisions from different jurisdictions stand out for their consequences for more ambitious governmental policies. One key example is the 2007 decision of the United States Supreme Court declaring that the Environmental Protection Agency has authority to regulate GHGs under the Clean Air Act. 48 Another example may turn out to be the 2015 civil court decision in the Netherlands ordering the state to cut Dutch p. 695annual GHG emissions by 25 per cent to 75 per cent of 1990 levels at the end of 2020. 49 Interestingly, the Dutch court decision amply refers to international and European law, including a number of non-binding provisions like decisions of the Conference of Parties to the UNFCCC, although they do not precisely stipulate the level of ambition that a single state like the Netherlands should have. These references by a national court to international provisions, including the ‘no harm’ principle, exemplify how courts – or at least this court – may take international developments into account for national litigation. The court reasons that ‘when applying and interpreting national-law open standards and concepts, including social proprietary, reasonableness and propriety, the general interest or certain legal principles, the court takes account of such internationallaw obligations’. 50 We can be sure that this specific approach will be amply discussed in literature; moreover, the decision is being appealed. At the international level, Christina Voigt suggests in chapter I.13 that the International Court of Justice (ICJ) could also play a defining role by clarifying the duty of care that states need to exercise in fulfilling their international obligations on climate protection. At the same time, she carefully points at potential disruptions that an adjudicative approach could cause tos efforts to reach a treaty-based solution.

The effect of potential court interventions in political decision-making at the international and sub-international level is hard to predict. The ‘threat’ of a court intervention in the event of insufficient governmental action may disturb international treaty negotiations, or may speed up the willingness of politicians to adopt more ambitious climate laws. Moreover, where claims requesting more ambitious GHG reduction policies from the government are concerned, legal scholarship will be of particular importance in analysing the fundamental role that courts may play vis-à-vis democratic decision-making.

Since a rise in climate litigation can be expected, we can anticipate that courts across the world will contribute to the polycentric development of global climate law, not only regarding claims for more ambitious GHG reduction, but also reviewing the legality of specific mitigation and adaptation measures. Case law cannot provide comprehensive guidance since courts can only become active if a certain claim on a certain issue is submitted. 51 Notably, the role that courts play seems almost opposite in India and China: while in India the judiciary can be framed as very influential, access to the Chinese courts is limited and the independence of the judiciary in China is still questionable. 52 All in all, legal scholars can play an important role by examining how harmonious or divergent climate case law from different jurisdictions will turn out to be, and how this may modulate mitigation and adaptation action. In this respect, one core point of interest is p. 696the quality of judicial reasoning, especially in fundamental cases such as the legality of unilateral measures with extraterritorial consequences. Joanne Scott in chapter I.14 critiques the reasoning of the Court of Justice of the EU in the case regarding the inclusion of parts of flights outside EU territory into the EU ETS. Her chapter is a clear example of how legal scholarship may not only detect such shortcomings in court decisions, but also provide sounder reasoning for courts to use in future cases.

We can expect adaptation issues to enter the courts less dramatically, because they will generally involve specific climate impacts in particular places, and those impacts will generally be the subject of some existing legal regime such as land use law or water law. The key question will be the extent to which the courts force greater consideration of climate impacts in this wide range of contexts. Some mechanisms from environmental law, such as environmental impact assessment, may provide courts with opportunities to consider more systematically the duty to consider climate impacts and address them effectively. A key example is the US case requiring the government to quantify the social cost of carbon for use in cost-benefit analysis. 53

Finally, courts are by nature limited in their capacity, since they cannot establish the comprehensive regulatory frameworks that are needed to implement mitigation and adaptation. If we take, for example, the creation of a mechanism for Reducing Emissions from Deforestation and Forest Degradation (REDD or REDD+), clearly a regulatory framework is needed in order to determine the conditions under which such a mechanism can work. 54 However, courts can intervene if the implementation of such a framework would be legally problematic, particularly to safeguard human rights. For this role to be effective, it is important that sufficient access to the courts be provided, not only in a formal sense, but also in view of providing sufficient financial and other capacity for the most vulnerable to go to court.

I.56.4 The outlook for (global) climate law after the Paris Agreement

The UNFCCC Paris conference from 30 November to 12 December 2015 managed to deliver a ‘protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties’. 55 That formulation, however, was from the beginning deeply ambiguous because the phrase ‘agreement with legal force’ does not have a commonly understood meaning. In the initial period after Paris, scholars continue to disagree about what portions of the agreement, if any, have the status of treaties under international law, and what provisions, if any, create mandatory obligations. 56 Nevertheless, the Paris negotiations were a significant step forward. With the Paris Agreement, there is for the first time a consensus on the need for comprehensive global action, not merely action by the developed parties. This provides hope that an atmosphere of confidence is produced that it is safe for individual countries to take action because other nations will be advancing along with them. At the same time, developing p. 697countries may continue to call for leadership from developed countries for the mitigation of emissions, albeit this is formulated in the agreement with ‘should’ and not ‘shall’. 57

Arguably, as Bodansky suggests, the parties may have a legal duty to submit mitigation targets but no legal duty to fulfil them, leaving the fulfilment of the targets to international political pressure rather than legal mechanisms. The future process of Nationally Determined Contributions (NDCs), which have to be submitted by all parties every five years, will show how the respective responsibilities will be carried out by the parties, and, also in this sense, the Paris Agreement is not the conclusion of a process, but is the very beginning of a (hopefully) inclusive global process towards addressing climate change sufficiently.

As is often the case with international negotiations in a complex and sensitive field, extensive legal discussion will be needed in order to examine the Paris Agreement’s real meaning and consequences. In fact, two documents are relevant in this respect: first, the Decision adopted by the Conference of the Parties to the UNFCCC, and secondly, the Paris Agreement, which is an Annex to this Decision. 58 Generally, the Paris Decision contains more concrete and specific language compared to the Paris Agreement. 59 In order to get the Paris Agreement and Decision effectively functioning, a lot of subsequent action and decision-making has to take place, including the tasks of the newly established Ad Hoc Working Group on the Paris Agreement in preparing the entry into force of the Paris Agreement and convening the first session of the Conference of Parties serving as the meeting of the Parties to the Paris Agreement (the COP/PPA). 60 Examples of subsequent international action mentioned in the Paris Decision and the Paris Agreement are: the delivery in 2018 of a special report by the IPCC on the impacts of global warming of 1.5 degrees Celsius above pre-industrial levels and related global GHG emission pathways, 61 the development by the Subsidiary Body of Implementation of modalities and procedures for the operation and use of the public registry for the Nationally Determined Contributions, 62 guidance for the accounting for the emissions as mentioned in the Nationally Determined Contributions, which has to be provided by the COP/PPA, 63 the joint development by the Adaptation Committee and the Least Developed Countries Expert Group of modalities to recognize the adaptation efforts of developing country Parties, 64 the filling in of the compliance mechanism as regulated by article 15 of the Paris Agreement, and the establishment by the COP/PPA of a body for a p. 698voluntary cooperation mechanism in the implementation of the Nationally Determined Contributions. 65 Thus, the outcome of Paris has inaugurated a new framework for international cooperation in mitigation and adaptation efforts, rather than representing imposing concrete obligations like the Kyoto Protocol.

In sum, under the Paris Agreement, the COP/PPA will have to continue the managerial approach that already characterizes the international climate change process, although the fact that consensus is still needed for decision-making may still impede sufficiently effective outcomes. 66 At the same time, the value of the Paris Agreement may mostly lie with the required regular five-year submissions of NDCs and subsequently the comparison of the different efforts of parties, together with the global stocktake from the COP/PPA to assess the collective progress towards achieving the purpose of the Agreement and its long-term goals. 67 This system of national contributions together with a global stocktake means that the Parties themselves, being united in the COP/PPA, have to assess the collective progress towards achieving the purposes of the Agreement. However, civil society (and other actors) may engage into an intense process of assessing and comparing the NDCs, which may lead to a process of (different forms of) naming, blaming and faming. Hence, the chosen system in Paris may indicate that the non-legal but relatively strong power of the media and of civil society may become influential on national action.

The core provision of the Paris Agreement, the required regular submissions of NDCs, in fact shows the importance of domestic law developments in the fields of both mitigation and adaptation. The domestic choices for giving content to the NDCs need to incorporate many issues as covered in this Encyclopedia, such as instrument choice and adaptation matters. Also the national courts may become increasingly important as regards what countries can include in their NDC, with different effects. Here we can point at the Urgenda case from the Netherlands of 24 June 2015 (which implies more GHG reduction ambition) 68 and also the US Supreme Court stay of the implementation of the Clean Power Plan on 9 February 2016 (which has delayed part of the national action for GHG emission reduction). 69

In our view, the Paris Agreement generally confirms the polycentric character of climate law. With regard to capacity-building activities, the Paris Agreement even refers to ‘regional, bilateral and multilateral’ approaches which have to be regularly communicated. International aviation and shipping emissions have not been addressed by the Paris Agreement, so for these specific sectors separate approaches have yet to be developed, most likely outside the Paris Agreement. The polycentric character can also be seen because of the lack of common regulatory instruments in the Paris Agreement, although its article 6 refers to voluntary cooperation in the implementation of the nationally determined contributions in order to allow for a higher ambition in mitigation p. 699and adaptation actions. The use of international transfers of mitigation outcomes, a specific kind of emissions trading, and a ‘mechanism to contribute to the mitigation of greenhouse gas emissions and support sustainable development’ are mentioned, but their content and practicalities have yet to mature. 70

The Paris Agreement lacks strong individual country commitments and an effective compliance mechanism, although lawyers may discuss whether some provisions may still be interpreted as having a binding consequence. Even though, since the UNFCCC and the Kyoto Protocol, we have seen the adoption of a third agreement on climate change, adequate bottom-up approaches are certainly still needed and their legal consequences and interaction with other initiatives will need to be scrutinized by scholars. In this respect, decision-making on the use of geo-engineering techniques will most likely play a pivotal role, particularly in view of the accepted need to take dramatic measures to stay ‘well below’ the 2 degrees Celsius objective, and especially to manage to stay below 1.5 degrees Celsius temperature rise. In this respect, the importance of science, including IPCC reports, in informing the political decision-making will continue. It remains to be seen how the IPCC will deal with its principle to give policy-neutral advice in this respect: the indication of global emission pathways, which the IPCC has to deliver in 2018 at the request of the Paris Decision, may come close to normative observations. For the future of climate law, it will be interesting to see which centres of formal or informal power will influence the decision-making: science, international bodies, national governments, civil society, or courts. Most likely it will be a conglomerate of and interplay between all these factors, although predictions are hard to make in this area.

Finally, future comparative studies of the NDCs may be applied through the lens of global climate law, thereby investigating processes of transplantation and convergence, and even of integration and harmonization. Hence, the future NDCs will show to what extent common procedures, principles and instruments may have emerged, and hence to what extent a global climate law can be detected as a result of the bottom-up approaches as formalized in the Paris Agreement.

I.56.5 Research challenges for (global) climate law

Even though the Paris Agreement was adopted after the conclusion of most of the chapters in this Encyclopedia, the research presented throughout the chapters is still of utmost value for gaining a deep understanding of climate law in its various dimensions, also ‘after Paris’. Each of the preceding chapters in the Encyclopedia identifies at least one or two directions for future research in that particular area. We will not attempt to reprise them here. Instead, we will look at some of the broader research challenges for future researchers.

One set of challenges derives from the youth of the field of climate law. There are few aspects of climate law older than three decades. Thus, many of the chapter authors emphasize the need to clarify legal rules and principles that so far have already been formulated at an abstract level and often quite vaguely. The most striking example, as discussed above, is CBDR, but, related to this, also the question of which methodology of GHGs emission calculation can be best used (particularly whether emissions from p. 700the total production in a country or from the total consumption in a country should be taken). 71 Also for international trade law and international investment law, clarification is important particularly in view of avoiding what is called a ‘regulatory chill’. 72

In addition, much more attention has gone to creating mandates than to the process of implementation. Thus, many authors call for additional research into administrative implementation and judicial enforcement. 73 At the national level, compliance issues may loom especially large in developing countries where commitment to the rule of law may still be shaky. This may mean that systems of sanctioning for mitigation laws may have to be designed differently in developing countries than in countries with a matured legal infrastructure. 74 More research is needed on the question of what kind of regulations and sanctioning systems work best in the case of weak legal infrastructures. But even in more mature jurisdictions, non-compliance with climate change regulation may appear to be a reality. In this respect, it will be particularly interesting to examine to what extent the Member States of the European Union will comply with the legally binding targets for GHG emission reduction and renewable energy mandated by 2020, and, in addition, to what extent industries will comply with the EU ETS.

Another consequence of the newness of climate law is that it can collide with other, more established areas of law that were not designed with climate change in mind. For instance, rules governing wildlife and the ownership and use of land and water evolved in an era of stable coastlines and predictable water availability. As a result, the rules may not function well in the more variable situation in the future, particularly with respect to water, 75 property rights in coastal areas, 76 and biodiversity. 77 Efforts at sub-global action may collide with trade law, treaties dealing with specific sectors such as international transport, or national laws governing sub-national jurisdictions, legal regimes that pre-date climate change.

Finally, because of the newness of climate law and the continuing evolution of climate science, we still have only a partial knowledge of what approaches to mitigation and adaptation will work. Several chapters point out the need to make room for adapting legal regimes to the future. Yet, building flexibility into regimes may conflict with the need for stability and long-term commitments. For instance, advances in climate science will improve our information about the best level to cap emissions, but investment decisions and the efficient operation of emission trading markets require stable expectations about future requirements.

Another set of challenges involves the resolution of conflicts within climate law. Some conflicts relate to the goals of climate law. Climate change can be seen from an p. 701economic perspective as presenting a problem of maximizing the value of investment in climate mitigation and costs relative to their benefits. 78 The problem looks quite different, however, from the human rights perspective. 79 More broadly, there is a tension between viewing climate change as an issue about human welfare versus viewing it as an issue about justice. That tension runs through debates over CBDR, the treatment of indigenous people, climate financing and adaptation funding. 80

Moreover, although climate law centres on the need to forestall the harm from climate change, efforts to deal with the climate problem may clash with other values. The most efficient decision-making techniques may not leave sufficient room for public participation, considered as a value in its own right. Efforts to foster renewable energy may cause other kinds of environmental harm such as damage to sensitive lands. Sovereignty is a value prized by many nations, yet dealing with global climate problems may clash with some concepts of sovereignty.

The challenge for legal scholars is partly one of clarification. We need to clarify the nature of the values and identify situations where conflicts between values are real rather than apparent. Legal scholars particularly have a role to play in finding mechanisms for accommodating conflicting values, for example, finding ways to make public participation work effectively and add to, rather than impede, climate efforts like renewable energy projects. In this vein, potential conflicts between market-based instruments and human rights and ways of overcoming them also need to have focal attention from legal scholars.

A final, more general challenge is posed by climate change: the need for vast improvements in mechanisms for cooperation and conflict resolution at all levels, from sub-national to global. This need is inherent in the nature of climate as a global commons. 81 This problem is central to the chapters on international law issues, where climate requires cooperation at an unprecedented level. New institutions for climate finance also reflect this need. 82 On the adaptation side, some adaptation problems are purely local, but many are not. Watersheds often include multiple jurisdictions, and the oceans are common property. Yet mechanisms for cooperation in these settings are still a work in progress. Legal scholars have much to contribute in the quest to develop and perfect these multi-jurisdictional mechanisms. Naturally, there will be conflict as well as cooperation, thus conflict resolution mechanisms, like those of the ICJ, and the usefulness of (softer) compliance mechanisms need to be discussed as well. 83

In closing, we want to address the importance of language itself in the worldwide academic discussion on climate law. We have the impression that language even today still presents a significant barrier to scholars. There is a need to enhance the dialogue p. 702among scholars from major emitting non-English-speaking countries like China, Mexico and Brazil. The fact that the recent Dutch court case demanding greater mitigation measures from the Netherlands is translated into English promotes the international discussion. However caution is needed: such a court decision can only be well understood in the context of the national, and, in this case, EU legal framework. In this respect, it is necessary that the Dutch commentaries also find their way to the English-speaking community. Similarly, Chinese climate law is probably much discussed in Chinese, but those discussions are rarely accessible for international scholars. If we want to achieve a thorough discussion of the emerging global climate law, it is of particular importance that analyses of national law be disclosed to the global community. Moreover, in discussing how to develop sound legal approaches, including funding, in order to deal with climate change effects, more attention should be paid to poor and vulnerable countries. The academic community in those countries generally faces a lack of resources, which may impact as well on the ability to take part in the worldwide discussion as has been attempted in this Encyclopedia.


As chapter I.15 by Jesse Reynolds and chapter I.16 by Navraj Singh Ghaleigh discussed, an alternative method of achieving this goal through geo-engineering is now the subject of serious discussion, but we put aside this possibility for the moment in the interests of simplicity.

There is also some overlap between these fields, since some programmes may contribute both to mitigation and adaptation.

See chapter I.1 by Duncan French and Benjamin Pontin, chapter I.2 by Nicolas de Sadeleer and chapter I.3 by Michael A Livermore.

For instance Jasanoff (1998), Vos and Everson (2012).

That subject may be of particular relevance to the discussion of geo-engineering, discussed in chapters I.15 and I.16.

Emissions trading is the subject of several chapters of this Encyclopedia: chapter I.19 by Javier de Cendra de Larragán (on flexible mechanisms under the Kyoto Protocol), chapter I.31 by Marjan Peeters (EU), chapter I.32 by David Hodas and Patrick DeArmy (United States), chapter I.33 by Qin Tianbao and Zhang Meng (China) and chapter I.42 by Sang-Hyup Kim and Hong Sik Cho (South-Korea). As can be derived from these chapters, a lot of case law has emerged with the EU emissions trading scheme, while thus far legal challenges to the US emissions trading schemes have hardly emerged. Moreover, for China, access to the court is still very limited.

Chapter I.5 by David Benson and Andrew Jordan.

Chapter I.34 by David M Driesen.

Chapter I.6 by Stephen Ferrey.

Chapter I.8 by Michael P Vandenberg and Benjamin K Sovacool.

Chapter I.35 by Shi-Ling Hsu.

See chapters I.37 to I.39 by Arnold W Reitze Jr, Thomas Schomerus and Birgitte Egelund Olsen respectively. See for a discussion of the (change of) energy systems in view of adaptation chapter I.48 by Rosemary Lyster and Manuel Peter Solis.

Chapter I.40 by John C Dernbach.

Chapter I.49 by Alice Kaswan.

See chapter I.43 by Andrea Keessen and Marleen van Rijswick, discussing the European approach, and chapter I.44 by A Dan Tarlock, providing the US perspective.

Lisa Grow Sun and Brandon Curtis discuss the urban planning issues in chapter I.53, while Margaret R Caldwell and Molly Loughney Melius focus on coastal areas in chapter I.47.

Wybe Th Douma points to the fact that climate change law and international trade law are both highly complex regimes, and that the interests of developed and developing countries are hard to align (chapter I.25). See on the need to find ways to integrate work on climate change within other domains of international law Cinnamon Carlarne, chapter I.22.

Chapter I.26 Ximena Fuentes Torrijo.

These issues are discussed in chapters I.23 (ICAO and IMO) by Kati Kulovesi and Joanna Dafoe and I.24 by Harro van Asselt (interlinkages between climate change, ozone depletion and air pollution).

See, for example, the renewable energy chapters I.38 and I.39 by Thomas Schomerus and Birgitte Egelund Olsen respectively.

The beginnings of such a mechanism can be found in places such as the Kyoto Protocol’s compliance mechanism, discussed by Francesca Romanin Jacur in chapter I.20. Other aspects of compliance and enforcement are discussed in the chapters on criminal law (chapter I.9) by Matthew Hall and climate litigation by Michael B Gerrard and Meredith Wilensky (chapter I.30).

For a critical discussion of local governments initiatives, see Benjamin J Richardson, chapter I.7. For discussion of climate change action by subnational jurisdictions in the US, see Kirsten H Engel in chapter I.28.

As stressed by David Benson and Andrew Jordan in chapter I.5.

Chapter I.10 on China by Wang Xi, Tang Tang, Lu Kun and Zhang Yan, chapter I.41 on India by Deepa Badrinarayana and chapter I.42 on South-Korea by Sang-Hyup Kim and Hong Sik Cho.

Yang and Percival (2009) 617–18.

Chapter I.12, by Tuula Honkonen, has been totally dedicated to discussion of this principle, but in various other chapters the principle has also been referred to. Special attention to mitigation in view of the specific national (economic) circumstances of India has been paid by Deepa Badrinarayana in chapter I.41. As editors, we faced the dilemma that we had to ask a number of contributors to reduce attention to the CBDR principle in their final chapter in order to make space for discussions of other relevant topics; this shows how much interest there is generally in the CBDR principle in legal writings. Finally, we want to draw attention to article 4(2) of the Paris Agreement, which includes the CBDRRC principle, in the light of different national circumstances, and article 4(4), which provides a description of different commitments for developed country parties on the one hand and developing country parties on the other. It remains to be seen whether the latter will have any consequence in procedures where more action will be required before the national court.

This is the so called Effort Sharing Decision, number 406/2009/EC. This legal instrument concerns emissions not covered by the EU emissions trading scheme. It has not been discussed in this Encyclopedia, see for further information Peeters and Stallworthy (2012).

Chapter I.33 by Qin Tianbao and Zhang Meng.

Chapter I.14 by Joanne Scott.

As Robin Kundis Craig discusses in chapter I.46.

Discussed by Katrina M Wyman in chapter I.52.

See Francesco Sindico in chapter I.18.

See chapter I.50 by Meinhard Doelle.

Cole (2011).

As explained with reference to other literature by Cole (2011) 404–405.

Chapter I.27 by Hari M Osofsky.

Chapter I.7 by Benjamin J Richardson.

Chapter I.28 by Kirsten H Engel.

Chapter I.53 by Lisa Grow Sun and Brandon Curtis.

Chapter I.55 by Robert RM Verchick.

Chapter I.54 by Sean B Hecht and Jesse Lueders.

For a discussion on fragmentation of international climate law, and whether this creates both opportunities and challenges, see Cinnamon Carlarne in chapter I.22.

Montesquieu, Book XXIX chapter 18: ‘There are certain ideas of uniformity, which sometimes strike great geniuses (for they even affected Charlemagne), but infallibly make an impression on little souls. They discover therein a kind of perfection . . . But is this always right and without exception? . . . And does not a greatness of genius consist rather in distinguishing between those cases in which uniformity is requisite, and those in which there is a necessity for differences?’

Lavanya Rajamani, chapter I.17.

Yang and Percival (2009) 617: ‘Though the trends of transplantation, convergence, integration, and harmonization are difficult to describe, they are contributing to the emergence of a set of norms and principles that are global in nature, not just national or international.’

Shown by Michael B Gerrard and Meredith Wilensky in chapter I.30.

See ibid.

Supreme Court of the United States, Massachusetts v EPA 127 S Ct 1438 (2007).

Urgenda v The State of the Netherlands, Civil court of The Hague, the Netherlands, 24 June 2015, para 4.43, English translation available at (accessed 19 July 2015).

Urgenda vs The State of The Netherlands, Civil court of The Hague, The Netherlands, 24 June 2015, para 4.43, available at (accessed 19 July 2015).

Chapter I.32 by David Hodas and Patrick DeArmy reveals that in the US, case law regarding emissions trading thus far remains minimal, while in the EU many legal claims regarding the EU ETS have been decided.

See Wang Xi and others in chapter I.10, and also on the role of the judiciary in China Qin Tianbao and Zhang Meng in chapter I.33.

Discussed by Michael A Livermore in chapter I.3.

Discussed in chapter I.21 by Heline Sivini Ferreira and Diogo Andreola Serraglio.

Conference of the Parties to the UNFCCC, Decision1/CP.17, Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action (2011).

See Daniel Bodansky, ‘The Legal Character of the Paris Agreement’ (2016), available at

Article 4(4) Paris Agreement reads ‘Developed countries should continue taking the lead by undertaking economy-wide absolute emission reduction targets . . .’. See on the interesting decision-making in the final moments of the adoption of the Paris Agreement: Daniel Bodansky, ‘Reflections on the Paris Conference’,

Conference of the Parties to the UNFCCC, Decision 1/CP.21, FCCC/CP/2015/10/Add.1 (2015).

For instance, article 15 of the Paris Agreement regulates an implementation and compliance mechanism, but paras 102 and 103 of the Paris Decision provide more detailed arrangements for filling in this mechanism.

Para 7 of the Paris Decision.

Para 21 of the Paris Decision.

Para 29 of the Paris Decision.

Article 4(13) of the Paris Agreement.

Para 41 of the Paris Decision.

Article 6 of the Paris Agreement.

Article 16(5) of the Paris Agreement.

Article 14 of the Paris Agreement regulates the global stocktake. The global stocktake shall also include adaptation efforts, see article 7(14) of the Paris Agreement.

See footnote 49.

See Lisa Heinzerling, ‘The Supreme Court’s Clean-Power Power Grab’ (2016), available at

Article 6(3) and (4) of the Paris Agreement.

As pointed out in chapter I.10 by Wang Xi and others.

As referred to by both Wybe Th Douma (chapter I.25) and Ximena Fuentes Torrijo (chapter I.26).

Also in the field of environmental impact assessment – a tool that can contribute positively to climate governance – major challenges remain in operationalizing, see Jacqueline Peel, chapter I.29. In addition, see specifically on the need to improve environmental impact assessments regarding energy systems: Rosemary Lyster and Manuel Peter Solis in chapter I.48.

See chapter I.9 by Matthew Hall.

Examined by A Dan Tarlock in chapter I.44.

See Margaret R Caldwell and Molly Loughney Melius in chapter I.47.

See Alejandro E Camacho in chapter I.45.

Explained by Michael A Livermore in chapter I.3.

Discussed by Sheila R Foster and Paolo Galizzi in chapter I.4.

See on indigenous people Sarah Krakoff (chapter I.51) and on climate finance, including adaptation funding, Francesco Sindico (chapter I.18).

Explained by Peter-Tobias Stoll in chapter I.11.

See on the importance of climate finance in the legal literature chapter I.18 by Francesco Sindico.

See on the experiences with the Kyoto Protocol Compliance Mechanism, Francesco Romanin Jacur (chapter I.20).

This chapter was peer-reviewed by the general editor of the Environmental Law Encyclopedia series, Prof Michael Faure (Maastricht University, the Netherlands).