Rather than being keyed to any one legal system, this chapter investigates the constitutional and administrative challenges of climate change at a more general level. It identifies problems that cut across legal systems and suggests some effective approaches to solving them. The chapter first discusses the constitutional problems involved in responding to the risks of climate disasters, including both structural issues such as federalism and potential violations of property rights and other individual rights. It then considers aspects of administrative law relevant to climate disasters, including the need to ensure government transparency and accountability as well as the significance of public participation.
Daniel A. Farber
Deadlines are a ubiquitous feature of lawmaking in contexts ranging from federal agency rulemakings to international negotiations. Despite the expectation that these deadlines will drive conflicting parties toward agreement or overcome bureaucratic inertia, their impact on decision-making is mixed, often producing only modest improvements in speed, and perhaps sometimes none at all. On the downside, deadlines can sometimes reduce the quality of decisions or encourage brinksmanship when missing a deadline would have draconian consequences. If there is a case for deadlines, then, it is an uneasy one. Game theory suggests some potential ways to increase the effectiveness of deadlines as action-forcing strategies, such as improving information sharing between actors and providing enforcement mechanisms for negotiated outcomes. Keywords: statutory deadlines, regulatory deadlines, lawmaking brinksmanship, negotiation theory
Daniel A. Farber and Michael Faure
Daniel A Farber and Marjan Peeters
As the chapters in this Encyclopedia demonstrate, climate law is a dynamic and multidisciplinary field, implicating many diverse fields of law at all levels from municipal planning through multinational treaties. The outlines of an emerging global law can be discerned, including shared principles such as common but differentiated responsibility and also widely adopted instruments such as emissions trading. But it remains to be seen whether a mature climate change regime will be top-down, driven by a comprehensive global treaty, or polycentric, with many interacting sources of law. The Paris Agreement of 12 December 2015 is indicative of the latter trend. The role of the courts is still unclear, particularly the extent to which they will provide the impetus for government action. Future legal scholarship will need to address many crucial issues: identifying implementation methods to translate the goals of climate law into concrete achievements, adapting other areas of law to cope with climate change, dealing with conflicting values such as cost-effectiveness versus human rights, and designing new mechanisms for the unprecedented level of cooperation mandated by climate change.
Edited by Daniel A. Farber and Marjan Peeters
Climate Change Law, the first volume of the Elgar Encyclopedia of Environmental Law, provides a guide to the rapidly evolving body of legal scholarship relating to climate change. The amount of international, European and national legislation, judicial decisions, and legal scholarship in the field of climate law has now become almost overwhelming. This book focuses on the underlying concepts that are of concern to researchers, students and policymakers rather than on the details of national legislation.
The core topics include the difficulty of setting up a coherent international treaty approach, the importance of national and subnational legal action, the potential role of international and national courts, and the importance of human rights and environmental justice. Providing a comprehensive discussion, more than 50 entries developed by experts from across the world cover mitigation and adaptation issues in their wider context, from both international and national perspectives. Each chapter concludes by identifying important research challenges. Finally, the concluding chapter argues thata discernible global legal regime is emerging. The 2015 Paris Agreement marks both the increasingly interlinked but polycentric nature of this new regime.
This is the definitive resource for all those seeking the state of the art of climate change law, from students and legal scholars to practising lawyers, civil servants and NGOs.