Climate change litigation : a handbook / edited by Wolfgang Kahl, Marc-Philippe Weller.

Format:

Book

Contributor:

Kahl, Wolfgang, editor.

Weller, Marc-Philippe, editor.

Edward Potts Cheyney Memorial Fund.

Standardized Title:

Climate change litigation (Kahl)

Language:

English

Subjects (All):

Climatic changes--Law and legislation.

Climatic changes.

Toxic torts.

Actions and defenses.

Liability for climatic change damages.

Physical Description:

xxx, 565 pages ; 25 cm

Place of Publication:

München : C.H.Beck ; Oxford : Hart ; Baden-Baden : Nomos, 2021.

Summary:

Climate Change Litigation investigates and discusses the respective issues arising in the current discourse on climate protection from different legal perspectives (including International law, European law and national public and civil law). In particular, it addresses the issue of "climate protection by courts". It gives an overview about important jurisdictions in the field of climate change litigation, including inter alia the US, Canada, Australia, UK, France, the Netherlands, Italy, Brazil and Germany. The ever greater, more wide-spread, and more violent effects of climate change in recent history have brought forth an unprecedented rise in societal discourse in the field of climate change. Naturally, this discourse is portrayed with its concomitant effects in court: The lawsuits initiated by human rights organisations against large corporations (e.g. against the energy giant RWE before German courts) and states (e.g. against the Netherlands) have attracted significant media attention especially. As a result, climate change litigation is in the course of establishing itself into an independent branch of environmental law and international law which is most likely to be one of the major legal markets of the future. Building upon this, Climate Change Litigation aims to pave the way for research in the field of climate change litigation, which up to this point has surprisingly remained untrodden ground in Germany or Europe. Published as a handbook, this text provides answers and ideas both to scholars and practitioners in this legal field. Furthermore, it is guaranteed to provide an overview of the latest news in cases and progress in the field of climate change litigation. -- Provided by publisher.

Contents:

Machine generated contents note: INTRODUCTION: CLIMATE CHANGE AS A CHALLENGE FOR GLOBAL GOVERNANCE, COURTS AND HUMAN RIGHTS (Voigt)

I. Introduction: climate change

a global threat

II. Challenges (and possibilities) for global governance and international law

III. The role of courts

1. Addressing the causes of climate change

2. Addressing the consequences of climate change

3. Response measures to climate change

IV. Major legal issues

V. Potential role for litigation in national courts

pt. 1 FUNDAMENTAL QUESTIONS

A. Liability for climate damages, sustainability and environmental justice (Kloepfer/Neugartner)

I. Introduction: global warming's spatiotemporal strangeness

"tricky" to imagine

II. Random sampling: Lliuya v. RWE

approaching liabilities for climate damages inductively

1. The case Lliuya v. RWE

2. Three exemplary issues: statute of limitations, rivalling Rechtsregime, adequate causation

3. Trying to imagine "strange" `spaces', `times' and `agents'

III. Key frameworks: `sustainability', `environmental justice'

and `ecological justice'

1. Integrative frameworks for "evaluating environmental decisions"

2. First encounters, some basic definitions, some common(?) ground

3. Some traps: `lucid dreams' of harmony, `greenwashing' and anthropocentrist blind spots

4. `Ecological justice'

`space', `time' and `agency' in the Anthropocene

IV. Times, spaces (and agents) of global warming

1. Times of global warming

2. Spaces of global warming

V. Coda: "more time tunnels of different sizes"

B. Climate damages and the `Polluter Pays' Principle (Rehbinder)

I. Introduction

II. Historical development and state of recognition

1. Historical development

2. State of recognition

III. Legal nature

1. Principle or rule?

2. Legal effects

IV. Functions

1. Diversity of functions

2. Internalisation vs. instrumental orientation

3. Redistribution of costs vs. material responsibility

V. Contents and limits

1. Generalities

2. Protected assets

3. Identification of the polluter (originator)

4. Causation and accountability

5. Delimitation from the common burden principle

VI. Instruments

2. Liability in particular

VII. Conclusion

C. The role of courts in climate protection and the separation of powers (Payandeh)

I. Introduction: the judicialization of climate change governance

II. Analysis: structures of judicial involvement in climate protection

1. Venues

2. Protagonists

3. Goals

III. Contextualization: factors influencing the role of courts

1. Procedural rules and the competences of courts

2. Substantive law and the legal order in general

3. Political and social environment

IV. Evaluation: the legitimate functions of courts in climate protection

1. Climate change litigation between law and politics

2. The suitability of judicial engagement with climate change

3. The effectiveness of climate change litigation

V. Conclusion: potential and limitations of judicial climate protection

D. Climate change and duties to protect with regard to fundamental rights (Gross)

II. Constitutional foundations

1. Protection of the environment

2. Protection of human rights

III. The Jurisprudence of the European Court of Human Rights

1. The protection against dangerous activities

2. The protection against natural disasters

3. Open questions

IV. The legal problems of positive obligations

1. Individual rights

2. Access to courts

3. Causation

4. Scope of obligations

5. Separation of powers

V. Conclusion

pt. 2 PROCEDURAL ISSUES AND CONFLICT OF LAWS

E. Arbitration proceedings (Lennarz)

II. Climate change disputes

1. Disputes resulting from material damages

2. Disputes over natural resources

3. Disputes resulting from international climate treaties

4. Disputes resulting from transformation of the economy

5. Climate finance disputes

6. Corporate disputes

III. Arbitration proceedings

1. Arbitration law

2. Enforceability

3. Arbitration agreement

4. Confidentiality

5. Flexibility of proceedings

6. Selection of arbitrators

7. Involvement of third parties

8. Involvement of states

9. Applicable law

10. Claims based on tort

IV. Suitability of arbitration proceedings for climate change disputes

1. Political and public law claims

2. Claims for damages and for specific performance against companies

3. Disputes over natural resources

4. Disputes arising from international climate protection treaties

5. Disputes resulting from the implementation of international climate treaties

6. Disputes due to transformation towards Green economy

7. Disputes arising from climate finance

8. Corporate disputes

V. Arbitral institutions and climate change

1. Permanent Court of Arbitration, The Hague

2. International Court of Arbitration of the ICC, Paris

VI. Summary

F. Conflicts of jurisdiction and the applicable law in domestic courts' proceedings (Kieninger)

1. Road map

2. Cross-border elements giving rise to questions of private international law

3. No universal rules with respect to jurisdiction and Choice of Law

II. State immunity and "political question doctrine"

1. State immunity

2. "Political question doctrine" as a limitation to cross-border proceedings

III. Jurisdiction

1. Introduction

2. Brussels Ibis Regulation and Lugano Convention

3. EU Member States' autonomous rules on jurisdiction

4. United States: Personal jurisdiction of state and federal courts

IV. Choice of Law

2. EU: Liability in tort (delict) according to the Rome II Regulation

3. Autonomous PIL: Property law

4. US conflict of laws

pt.

3 STATE LIABILITY UNDER INTERNATIONAL AND EUROPEAN LAW

G. Environmental liability in international law (Wolfrum)

II. Notion

environmental liability

what does it mean and what is the purpose in the context of a liability regime?

III. Development of a regime on environmental liability: From liability for transboundary harm to genuine international environmental liability

first jurisprudence

2. Development of the treaty law on civil liability

3. International treaties on the protection of the environment of international common spaces: A paradigmatic shift?

4. Customary international law: Does there exist an international regime on environmental liability?

IV. Concluding observations: Necessary features of a regime on international environmental liability

2. Liability for lawful or only illegal activities

3. Intensity of harm

4. Liability for not establishing precautionary measures or an adequate response system

5. The matter of causality

6. Fault based or strict liability

7. Calculating the amount of compensation to be paid and limits

8. The potential claimant

H. The international law and policy implications of climate change litigation: sustainable developments in international investment law and policy related to renewable energy, climate change mitigation and adaptation (Cordonier Segger/Arvan/Byron/Srinivas)

II. International policy & treaty commitments to climate justice & investment in carbon neutral/negative sustainable development

III. Climate change litigation guiding investment risk assessment & decision-making

IV. Innovations in investment law & policy related to clean energy, climate change and sustainable development

1. Treaty & policy developments

2. Investment treaty disputes

V. Conclusions

I. The Paris Climate Agreement and liability issues (Franzius/Kling)

II. The Paris Agreement and the legal nature of its provisions

1. The Paris Agreement - binding or not binding?

2. Obligations in the main action areas

3. Compliance and enforcement

III. The Paris Agreement in the courtroom

1. Interplay between the international and national level

2. The Paris Agreement in domestic litigation

3. Rights-based litigation

4. Adjudication in planning decisions

5. Some general remarks: the importance of considering the national context

IV. Conclusion and outlook

J. Liability of EU Member States under EU law (Purnhagen/Saurer)

II. Greenhouse gas reduction obligations of EU Member States under EU law

III. EU Member State liability within the non-ETS sector: the obligation to purchase surplus allocations from other Member States as financial sanction

IV. Financial sanctions within the infringement procedure as liability mechanism

V. Liability of EU Member States under Francovich doctrine?

1. The origins, function and reasoning and doctrinal embedding of non-contractual Member State liability as developed by the Court

2. The Francovich criteria for state liability and climate law cases

3. Does the nature of the breach of Union law require a different yardstick in climate law cases?

VI. Conclusion

pt. 4 CLIMATE CHANGE LITIGATION

NATIONAL REPORTS

K. Climate change litigation in the United States (Farber)

II. Jurisdictional issues

1. Standing

2. Personal jurisdiction

Contents note continued: 3. Subject matter jurisdiction

III. Public law litigation

1. Litigation under the Clean Air Act

2. Litigation over disclosure of climate impacts

3. Adaptation issues

4. Non-statutory claims

IV. Tort liability

1. Nuisance law and climate change

2. Causation issues

3. Litigation prospects

L. Climate change litigation in Canada (Jodoin/McGinn)

II. Climate law and governance in Canada

III. Litigation relating to the authority of the federal government to address climate change

1. Syncrude Canada Ltd. v. The Attorney General of Canada

2. The GHG pollution pricing reference cases

IV. Litigation relating to the obligation of governments and public bodies to address climate change

1. Cases involving a failure of public bodies to adequately consider GHG emissions

2. Litigation relating to the Kyoto Protocol

3. Rights-based climate lawsuits

M. Climate change litigation in Brazil (Wedy)

II. Climate change law and litigation in Brazil

III. Legal remedies which may be used in climate litigation in Brazil

IV. Climate litigation in Brazil: analyses of cases

1. Precedent of the Supreme Federal Court

2. Precedents by the Brazilian Superior Court of Justice

N. Climate change litigation in Australia (Bell-James)

II. Climate change through the environmental impact assessment process

1. Early cases

2. The Queensland coal mine cases

3. Adani before the Federal Court

4. New development

Rocky Hill decision

5. Future directions and negative regulatory responses

III. Emerging avenues for climate change litigation

1. Corporate law

2. Human rights law

3. Operators of emissions-intensive industries

IV. Conclusion

O. Climate change litigation in the United Kingdom (Ohdedar/McNab)

1. Background to climate change litigation in the UK

2. Early history of climate litigation in the UK: 1990s to the mid-2000s

II. Litigating climate targets: holding the government to account

1. Plan B takes on the UK climate mitigation target

2. Human rights and climate change in the courts

3. The path to net zero: winning the political battle, losing the legal battle

III. Litigating the transition to a low carbon society: clean energy, airports, and tracking

1. Litigation on wind and solar projects

2. Anti-fracking cases

3. Litigation against airport expansion

IV. Criminal prosecution of climate activism: an emerging area of climate litigation

V. Conclusions and the future climate litigation in the UK

P. Climate change litigation in Italy (Butti)

II. Regulatory and planning framework on climate change in Italy

1. Mitigation measures

2. Adaptation measures

III. "Giudizio universale" (the last judgment): a high-profile case to be litigated by the first months of 2020

IV. Local court cases that are relevant to climate change litigation in Italy

Q. Climate change litigation in France (Epstein/Deckert)

II. Climate change litigation in public law

1. Available remedies

2. Injury

3. Illegal act or conduct

4. The causal link between the damage and the misconduct

III. Climate change litigation in private law

1. Making French companies eco-friendly through business law

2. Conditions and limits to the engagement of climate change civil liability: analysis of the difficulties and solutions to overcome them

R. Climate change litigation in the Netherlands - the Urgenda case and beyond (Van der Veen/De Graaf)

II. The Urgenda case

1. The District Court judgment

2. The Court of Appeal ruling

3. The Supreme Court decision

4. Analysis and critique

III. Other developments in the Netherlands

1. Friends of the Earth versus Shell

2. The Climate Act

3. The Climate Agreement

IV. Conclusions

S. Climate change litigation in Germany (Weller/Nasse/Nasse)

II. The scientific bases of climate change

1. The climate system

2. Greenhouse effect and greenhouse gases

3. Detection and attribution of climate change

III. Climate change litigation and private international law

IV. International jurisdiction of national courts

1. General forum, Art. 4 of Regulation No. 1215/2012

2. Special forum of the tort, Art. 7 No. 2 of Regulation No. 1215/2012

3. Special forum of the joinder of parties, Art. 8 No. 1 of Regulation No. 1215/2012

V. Applicable law

1. Scope of the tort statute

2. Choice of law, Art. 14 Rome II

3. Environmental tort statute, Art. 7 Rome II

4. Interim result

VI. Liability under German law

1. Compensation for already occurred damages

2. Protection from future impairments

3. Proof of causality as central hurdle of private climate actions

VII. Summary

pt. 5 LIABILITY FOR CLIMATE DAMAGES

GERMANY AS AN INTERNATIONAL PIONEER?

T. Liability for climate damages under the German law of torts (Wagner/Arntz)

I. The German law of non-contractual liability: an overview

1. Overview

2. The law of delict

3. Nuisance law

4. Strict liability

II. A prominent case in German courts: Saul Ananias Luciano Lliuya vs. RWE AG

III. The law of delict

1. Negligence liability, Section 823 (1) BGB

2. Breach of statutory duty, Section 823 (2) BGB

3. Actio doli, Section 826 BGB

IV. Strict liability

V. Law of nuisance

1. Actio negatoria, Section 1004 BGB

2. Section 906 (2) cl. 2 BGB and Section 14 cl. 2 BImSchG

U. Liability for climate change damages under the German Environmental Liability Act (Nitsch)

II. Basic principles of the UmweltHG

III. Nature of liability

IV. Facilities subject to the UmweltHG

1. Basic principles

2. Annex 1 catalogue

V. Damages subject to the UmweltHG

2. Climate change damages subject to the UmweltHG?

VI. Environmental impact

2. Environmental impact in the form of climate change

VII. Causation

2. Presumption of causation

3. Causation in cases of climate change damages

VIII. Temporal scope of application

IX. Conclusion

V. Climate protection and compliance in German corporate law (Habersack/Ehrl)

1. Climate protection in current accounting and stock corporation law

2. The company's external and internal relationships

3. Delimiting the object of study

II. The perspective of economic analysis and legal functionalism

1. The internalization of negative externalities as a guidance objective

2. Efficiency of lawfulness and compliance duties for legal enforcement

III. Climate protection and current corporate law

1. Corporate management and the objectives of stock corporation law

2. Duty of lawfulness and compliance responsibility (under stock corporation law), §§ 91 (2), 93, 116 p.

1 AktG

3. CSR reporting duties

4. CSR and corporate interest

IV. Conclusion and prospects

W. Investor-led action for climate and business sustainability (Duve/Hamama)

II. Climate change arrived in the investment community

III. Why is investor-led action needed?

1. Insufficient political measures

2. Changing regulatory frameworks

3. Need for more sustainable investments

4. Business dimension of the investor's-led action for climate

IV. Time for investor-led action

1. Invest responsibly

2. Divest from non-sustainable businesses

3. Stay invested and take action

V. What can investor-led action achieve?

1. Investor's dialogue with management

2. Corporate decisions and the public arena

3. Adopting climate change shareholder resolutions

4. Insisting on disclosure and climate change reporting

5. Acting as thought leaders

6. Taking a seat and action

7. Litigating as last resort

X. Liability for climate damages under the Environmental Damage Act (Kahl/Sturmlinger)

II. The concept of environmental damage

1. Damage to species and natural habitats

2. Water damage

3. Land damage

4. Restriction of the concept of environmental damage

5. Climate damages as environmental damages within the meaning of the EDA

III. Responsible party

1. Category of persons concerned

2. Direct causation

3. Responsible party for climate damages within the scope of the EDA

IV. Legal effects

1. Obligations of the responsible party

2. Powers of the authorities

3. Selection of disturbers

4. Bearing of costs

Y. The role of non-governmental organizations for climate change litigation (Verheyen/Pabsch)

1. NGO's as representatives of the environment

2. NGO's and climate litigation in practice

3. Climate litigation in Germany by defendants

II. NGO independent access to court as exception to the rule

the German standing rules in a nutshell

III. Formal role of NGO's in climate litigation against the state

1. Standing in project related actions

2. Compliance with climate protection targets or other rules of climate law

Contents note continued: 3. Climate litigation against the state: Climate legislation

IV. Passive legal status of NGO's

1. Intervention

2. Amicus Curiae

"friend of the court"

V. Perspective climate litigation to enforce climate law

1. Obligations under the EU Governance Regulation

2. The EU Climate Change Regulation

3. National climate protection law

4. Actions for adjustment and compensation

pt. 6 CONCLUSIONS: LIABILITY FOR CLIMATE DAMAGES

SYNTHESIS AND FUTURE PROSPECTS (Kahl/Weller)

II. Fundamental questions

1. Sustainability and environmental justice

2. Polluter-pays principle

3. The role of the legislature and the judiciary

4. Duties of protection

III. Procedural issues and Conflict of Laws

1. Procedures before civil courts

2. Applicable law

3. Arbitration proceedings

IV. State liability under international and European law

V. Climate change litigation: country reports

1. USA

2. Canada

3. Brazil

4. Australia

5. United Kingdom

6. Italy

7. France

8. Netherlands

VI. Liability for climate damages - Germany as an international pioneer?

1. Environmental Damage Act

2. Role of the NGOs

3. Corporate climate responsibility

4. Delictual climate change liability

VII. Tendencies and prospects

1. Primacy of the legislature, supplemental function of the courts

2. Basic right or state objective: climate protection in the national constitutions?

3. Emission reduction objectives in the constitution?

4. Private enforcement

5. Conclusion.

Notes:

Includes bibliographical references and index.

Local Notes:

Acquired for the Penn Libraries with assistance from the Edward Potts Cheyney Memorial Fund.

ISBN:

9783406743894

3406743897

9783848769216

3848769212

9781509948734

1509948732

OCLC:

1227382176

Publisher Number:

99990178495