Edited by Michael Faure
Forty years ago, the scientific evidence about climate change was beginning to solidify and serious concerns about human impacts were becoming clear. At that point, however, discussion of the legal dimension of climate change would have been entirely speculative. Much has happened in the meantime, at every level from municipal ordinances to international treaties, including the Paris Agreement of 12 December 2015, and from local to global environmental NGOs and small- to large-scale business initiatives. Indeed, the volume of legislation, private standard setting, judicial decisions and legal scholarship has now become almost overwhelming.
This Encyclopedia attempts to provide a guide to the rapidly evolving body of legal scholarship relating to climate change. The Encyclopedia focuses on concepts that are of concern to researchers (and students) rather than on the details of national legislation. Research relating to specific legal systems is of great importance, since in the end those legal systems will be responsible for implementing climate policy. But considerations of length make it impossible to cover every legal system, or even just those who have been active in climate regulation. Instead, chapters focusing on particular nations have been included only when the relevant policies have global impact or can provide models for other jurisdictions.1
Each chapter takes an analytical and focused approach. The chapter identifies important gaps (or, put differently, shortcomings, in the current state of affairs of law) and provides directions for important new research. Because the Encyclopedia contains over 50 chapters, we were forced to be rigorous in enforcing limitations on chapter length. This was especially difficult because, in addition to text, each chapter includes an extensive bibliography of relevant literature. Despite the severe length limitations, the authors of the individual chapters have met the challenge of providing incisive analysis.2
The Encylopedia is targeted at researchers who already have an understanding of the basics of the issues. Thus, we make no pretence of providing an introductory textbook. But the Encylopedia is not aimed only at researchers who specialize in a particular topic. It should also provide an entry point into the scholarly literature for intermediate and advanced students as well as lawyers and policy analysts.
The Encylopedia is divided into four parts, not counting our concluding chapter (which constitutes Part 5). It begins with a discussion of some of the general themes of climate change law, then examines both international and national efforts to reduce carbon emissions, and finally turns to the problem of adapting to unavoidable climate change.
p. 2Part 1 is devoted to general themes. One pervasive issue is how to set the goals for climate law. This problem can be seen from many perspectives, including the precautionary principle, economic analysis and human rights law. There are also a number of questions about implementation that apply broadly, in particular in terms of identifying the relevant entities to take action against climate change. There are many possibilities beyond the conventional focus on international and national laws, including decisions by individuals, corporations and local authorities to reduce their carbon footprints. There are also some cross-cutting issues about the choice of instruments, including both regulatory measures and criminal law. Finally, research in developing countries is at an early stage but is crucial for future progress.
Part 2 focuses on international law. After the establishment of the Intergovernmental Panel on Climate Change in 1988, the United Nations Framework Convention on Climate Change (UNFCCC) from 1992 has provided a forum for ongoing international negotiations, resulting in a series of other agreements of various types such as the Kyoto Protocol in 1997, the Copenhagen Accord in 2009 and, on top of that, the Paris Agreement in 2015. The UNFCCC and its progeny have also given rise to some new institutional arrangements, such as the Climate Adaptation Fund and the Kyoto Protocol Compliance Mechanism. Although progress in the international sphere is clearly hampered by the need for consensus among nations, there is still much to discuss. Moreover, new achievements like the Paris Agreement do not stand alone, but rather have to be seen as another step in a lengthy, complex, and sensitive international negotiation process. Thus, the development, adoption and content of the Paris Agreement can only be understood in the context of previous developments. There has also been considerable interest in how other aspects of domestic and international law intersect with the issue of climate change, with particular focus on the intersections between climate change and areas of law such as trade and human rights.
Part 2 begins with a discussion of issues that do not relate to existing treaties or current negotiations, such as the issue of different treatment for developing versus developed countries and the issue of geo-engineering. The focus then switches to the United Nations negotiations process, including the UN Framework Convention and the Kyoto Protocol. Part 2 also considers the limits of the UN negotiating process and the potential for fragmentation of the climate regime. The concluding chapter of the Encyclopedia adds some thoughts about the recent Paris Agreement in section 4, as do some brief last-minute additions to some earlier chapters. Of course, more extensive discussion will be needed in order to examine in full the instrument’s real meaning and consequences.
In Part 3 the discussion moves to national and regional efforts to limit greenhouse gases. Ultimately, any international regime must depend on efforts by national and sub-national governments for implementation. But a number of governments have not waited for international agreement to begin action. Partly prompted by international developments, but partly independently, these governments have taken a plethora of actions to address climate change. Most of the efforts have focused on energy-related emissions, primarily from transportation or electricity production.3 Diverse programmes have been p. 3created to encourage the use of renewable energy, while measures are also addressed at reducing the use of fossil fuels. Emissions trading systems have received particular attention as a possible comprehensive approach to controlling carbon emissions. But there are also many other programmes in use, such as subsidies for biofuels, renewable portfolio standards or feed-in tariffs to promote use of wind and solar power, and carbon taxes. Not only regulatory authorities, but also national courts have played a role in advancing climate policy. Given the degree of activity at the national and sub-national level, as compared with the (at least until the adoption of the Paris Agreement) often frustrating rate of progress in the international arena, a global effort to address climate change may be at least as likely to grow from the bottom up rather than the top-down approach of multilateral treaties. The Paris Agreement seems to confirm this trend by establishing a hybrid system in which the framework is established globally but emission targets are bottom-up.
Like Part 2, Part 3 begins with a discussion of general issues such as potential contributions of sub-national governments and limitations on their authority. Part 3 then focuses more narrowly on implementation of emissions trading systems with case studies of the European Union, Chinese and American experiences. Part 3 then discusses other regulatory approaches to cutting carbon emissions such as carbon taxes and renewable energy programmes. Finally, Part 3 examines mitigation strategies in two developing countries and how they see the relationship between climate policy and development needs.
Part 4 switches from climate change mitigation to adaptation. Despite the existence of an increasingly complex suite of climate change mitigation measures, global emissions of greenhouse gases continue to accelerate. Even if emission reduction efforts at the national and global levels advance rapidly, some degree of additional climate change is inevitable due to the persistence of greenhouse gases that are already in the atmosphere. Thus, the legal structures relating to adaptation to climate change will be increasingly important. Adaptation issues have historically been overshadowed by an overriding focus on mitigation. But growing awareness of the inevitability of some degree of climate change has prompted increased attention to adaptation planning at the international and domestic levels. At the international level, there have been increasing calls for enhanced cooperation and action on adaptation, with attention focused on facilitating adaptation planning in the Least Developed Countries, which are often some of the countries most vulnerable to the near-term effects of climate change.
Part 4 begins with adaptation issues that transcend national particularities such as the need to limit climate impacts on the energy and water sectors and to preserve biodiversity. It then turns to the problems posed by climate impacts on vulnerable populations. The list of those who are particularly vulnerable to climate change includes many marginalized groups such as indigenous people, but it also includes many others, such as residents of coastal areas, who could be subject to catastrophic droughts, floods and storms. A variety of mechanisms exist for addressing such severe risks, such as urban planning to minimize risk exposure and post-disaster relief. The world will also face an increasing number of individuals who are displaced due to climate-related events.
The challenges of climate change are formidable and perhaps unprecedented in their scope. While the current discussion predominantly focuses on getting adequate legal provisions for mitigation and adaptation adopted, the next step will be to address questions of implementation and enforcement in order to effectuate the required behavioural change. We can expect that the research issues identified in this Encylopedia will continue p. 4to occupy scholars for decades to come. We hope that this Encylopedia will contribute in a small way to promoting the progress of that research effort.
In closing, we owe a mention of the IUCN academy of environmental law, which helped make this Encylopedia possible. The IUCN is an important facilitator for international scholarly discussion and dissemination of research and information. It particularly tries to reach out to scholars in developing countries, and this institution already plays an important role for enhancing a global discussion on environmental and climate law. We thank the publisher and the academy for making this Encylopedia possible.4
See for a more extensive discussion overview of national laws in view of climate change: Lord, Goldberg, Rajamani and Brunnée (2012).
The draft chapters were finished before September 2015, hence most of the later developments are not included in the chapters. Nonetheless, in the final publication stage of the Encyclopedia some authors have included short observations on the Paris Agreement in their chapters.
The Energy volume that will be produced in this Encyclopedia set is in this respect also a valuable source.
In addition, we thank Ancui Liu, PhD candidate at Maastricht University, for her helpful assistance in producing this Encyclopedia.
Lord Richard Silke GoldbergLavanya Rajamani and Jutta Brunnée (eds) Climate Change Liability. Transnational Law and Practice (Cambridge University Press 2012).
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