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This page intentionally left blank Adjudicating Climate Change State, National, and International Approaches Edited by WILLIAM C. G. BURNS Williams College HARI M. OSOFSKY Washington and Lee University CAMBRIDGE UNIVERSITY PRESS Cambridge New York Melbourne Madrid Cape Town Singapore São Paulo Delhi Dubai Tokyo Cambridge University Press The Edinburgh Building Cambridge CB2 8RU UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org 9780521879705 © Cambridge University Press 2009 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2009 ISBN-13 978-0-511-59636-0 eBook (NetLibrary) ISBN-13 978-0-521-87970-5 Hardback 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. Information regarding prices, travel timetables, and other factual information given in this work are correct at the time of first printing, but Cambridge University Press does not guarantee the accuracy of such information thereafter. Contents Foreword Peter E. Roderick Acknowledgments 1 Overview: The Exigencies That Drive Potential Causes of Action for Climate Change William C. G. Burns and Hari M. Osofsky PART I: SUBNATIONAL CASE STUDIES 2 State Action as Political Voice in Climate Change Policy: A Case Study of the Minnesota Environmental Cost Valuation Regulation Stephanie Stern 3 Litigating Climate Change at the Coal Mine Lesley K. McAllister 4 Cities, Land Use, and the Global Commons: Genesis and the Urban Politics of Climate Change Katherine Trisolini and Jonathan Zasloff 5 Atmospheric Trust Litigation Mary Christina Wood PART II: NATIONAL CASE STUDIES 6 The Intersection of Scale, Science, and Law in Massachusetts v. EPA Hari M. Osofsky 7 Biodiversity, Global Warming, and the United States Endangered Species Act: The Role of Domestic Wildlife Law in Addressing Greenhouse Gas Emissions Brendan R. Cummings and Kassie R. Siegel 8 An Emerging Human Right to Security from Climate Change: The Case Against Gas Flaring in Nigeria Amy Sinden 9 Tort-Based Climate Litigation David A. Grossman 10 Insurance and Climate Change Litigation Jeffrey W. Stempel PART III: SUPRANATIONAL CASE STUDIES 11 The World Heritage Convention and Climate Change: The Case for a Climate-Change Mitigation Strategy Beyond the Kyoto Protocol Erica J. Thorson 12 The Inuit Petition as a Bridge? Beyond Dialectics of Climate Change and Indigenous Peoples’ Rights Hari M. Osofsky 13 Bringing Climate Change Claims to the Accountability Mechanisms of International Financial Institutions Jennifer Gleason and David B. Hunter 14 Potential Causes of Action for Climate Change Impacts under the United Nations Fish Stocks Agreement William C. G. Burns 15 Climate Change Litigation: Opening the Door to the International Court of Justice Andrew Strauss 16 The Implications of Climate Change Litigation: Litigation for International Environmental Law-Making David B. Hunter Conclusion: Adjudicating Climate Change across Scales Hari M. Osofsky Foreword Peter E. Roderick? The world’s political process has been slow to react to the serious, and potentially catastrophic, consequences for life on our planet that flow from the burning of fossil fuel. In one sense, this is understandable: turning around the global energy base is not a simple task. In another sense, it is inexcusable: a myopic failure to act in the face of clear scientific evidence. And among those who have failed to act, until recently, I include the legal profession. But as the pages of this book demonstrate, the long slumber of the lawyers is over. I was one of those fast asleep. In the late 1980s, long after scientists had been researching the problem, but with global awareness of climate change emerging, I was horrified to realize that as a legal adviser to Shell I was facilitating extraction of the hydrocarbons at the heart of the problem. The obvious answer was to leave the fossil fuel in the ground and to begin the arduous, yet critical, task of “decarbonizing” the world’s economy. But I was naive to imagine that hope for such a turnaround would start with the very corporations whose legal structure drives their slavish servicing of the “demands” of the stock exchange. It took me quite a while though to awaken fully. It was in 2001 that the Intergovernmental Panel on Climate Change published its finding that most of the observed warming at the Earth’s surface over the past fifty years was likely to have been due to human activities. If the world’s scientists were saying that human activities had led to temperature increases, with the qualitative nature of the effects well understood, then it was time for the courts to have something to say about it. This was the spur for Roda Verheyen and me to begin thinking about enforcement of the law around the world in order to combat climate change. This book tracks much of the development of climate change law in the five years since we scribbled down our thoughts, and spilt our wine, on the tablecloth of a North London restaurant. Alas, the restaurant is no more, but the development of climate change jurisprudence has moved on apace. What is to be made of this jurisprudence? Its origin lies in the inadequate political and corporate response to the planet’s biggest threat. Its content is a varied, innovative, barely formed mix across a spectrum of legal theories in domestic and international forums addressing both the causes and effects of climate change. Its results, to date, in purely legal and policy terms, include positive outcomes in the United States (for example, under the National Environment Policy Act, the Clean Air Act, and the Endangered Species Act), in Australia (on land use planning decisions in respect of coal mines), in Nigeria (on human rights violations from gas flaring), in Germany (on access to information on export credits), and at the UNESCO World Heritage Committee (adopting a world heritage and climate change strategy in July 2006); while negative judgements in the United States are under appeal with the support of some of the world’s top climate scientists. 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