Climate Change Litigation
A Handbook
Zusammenfassung
Kahl/Weller
Climate Change Litigation This handbook 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 book 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. Furthermore, it is guaranteed to provide an overview of the latest news in cases and progress in the field of climate change litigation.
Abstract
Kahl/Weller
Climate Change Litigation This handbook 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 book 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. Furthermore, it is guaranteed to provide an overview of the latest news in cases and progress in the field of climate change litigation.
- I–XXXII Titelei/Inhaltsverzeichnis I–XXXII
- 2–21 Introduction: Climate Change as a challenge for global governance, courts and Human Rights (Voigt) 2–21
- 2–3 I. Introduction: climate change – a global threat 2–3
- 3–7 II. Challenges (and possibilities) for global governance and international law 3–7
- 7–14 III. The role of courts 7–14
- 7–12 1. Addressing the causes of climate change 7–12
- 12–13 2. Addressing the consequences of climate change 12–13
- 13–14 3. Response measures to climate change 13–14
- 14–17 IV. Major legal issues 14–17
- 17–21 V. Potential role for litigation in national courts 17–21
- 23–97 Part 1: Fundamental questions 23–97
- 23–45 A. Liability for climate damages, sustainability and environmental justice (Kloepfer/Neugärtner) 23–45
- 23–23 I. Introduction: global warming’s spatiotemporal strangeness – “tricky” to imagine 23–23
- 23–26 II. Random sampling: Lliuya v. RWE – approaching liabilities for climate damages inductively 23–26
- 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’
- 26–33 III. Key frameworks: ‘sustainability’, ‘environmental justice’ – and ‘ecological justice’ 26–33
- 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
- 33–43 IV. Times, spaces (and agents) of global warming 33–43
- 1. Times of global warming
- 2. Spaces of global warming
- 43–45 V. Coda: “more time tunnels of different sizes” 43–45
- 46–62 B. Climate damages and the ‘Polluter Pays’ Principle (Rehbinder) 46–62
- 46–46 I. Introduction 46–46
- 46–48 II. Historical development and state of recognition 46–48
- 1. Historical development
- 2. State of recognition
- 48–51 III. Legal nature 48–51
- 1. Principle or rule?
- 2. Legal effects
- 51–54 IV. Functions 51–54
- 1. Diversity of functions
- 2. Internalisation vs. instrumental orientation
- 3. Redistribution of costs vs. material responsibility
- 54–58 V. Contents and limits 54–58
- 1. Generalities
- 2. Protected assets
- 3. Identification of the polluter (originator)
- 4. Causation and accountability
- 5. Delimitation from the common burden principle
- 58–60 VI. Instruments 58–60
- 1. Generalities
- 2. Liability in particular
- 60–62 VII. Conclusion 60–62
- 64–81 C. The role of courts in climate protection and the separation of powers (Payandeh) 64–81
- 64–66 I. Introduction: the judicialization of climate change governance 64–66
- 66–72 II. Analysis: structures of judicial involvement in climate protection 66–72
- 1. Venues
- 2. Protagonists
- 3. Goals
- 72–76 III. Contextualization: factors influencing the role of courts 72–76
- 1. Procedural rules and the competences of courts
- 2. Substantive law and the legal order in general
- 3. Political and social environment
- 76–80 IV. Evaluation: the legitimate functions of courts in climate protection 76–80
- 1. Climate change litigation between law and politics
- 2. The suitability of judicial engagement with climate change
- 3. The effectiveness of climate change litigation
- 80–81 V. Conclusion: potential and limitations of judicial climate protection 80–81
- 82–97 D. Climate change and duties to protect with regard to fundamental rights (Gross) 82–97
- 82–83 I. Introduction 82–83
- 83–85 II. Constitutional foundations 83–85
- 1. Protection of the environment
- 2. Protection of human rights
- 85–88 III. The Jurisprudence of the European Court of Human Rights 85–88
- 1. The protection against dangerous activities
- 2. The protection against natural disasters
- 3. Open questions
- 88–95 IV. The legal problems of positive obligations 88–95
- 1. Individual rights
- 2. Access to courts
- 3. Causation
- 4. Scope of obligations
- 5. Separation of powers
- 95–97 V. Conclusion 95–97
- 98–149 Part 2: Procedural issues and conflict of laws 98–149
- 98–119 E. Arbitration proceedings (Lennarz) 98–119
- 98–99 I. Introduction 98–99
- 99–100 II. Climate change disputes 99–100
- 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
- 100–105 III. Arbitration proceedings 100–105
- 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
- 105–114 IV. Suitability of arbitration proceedings for climate change disputes 105–114
- 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
- 114–118 V. Arbitral institutions and climate change 114–118
- 1. Permanent Court of Arbitration, The Hague
- 2. International Court of Arbitration of the ICC, Paris
- 118–119 VI. Summary 118–119
- 120–149 F. Conflicts of jurisdiction and the applicable law in domestic courts’ proceedings (Kieninger) 120–149
- 120–123 I. Introduction 120–123
- 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
- 123–125 II. State immunity and “political question doctrine” 123–125
- 1. State immunity
- 2. “Political question doctrine” as a limitation to cross-border proceedings
- 125–138 III. Jurisdiction 125–138
- 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
- 138–149 IV. Choice of Law 138–149
- 1. Introduction
- 2. EU: Liability in tort (delict) according to the Rome II Regulation
- 3. Autonomous PIL: Property law
- 4. US conflict of laws
- 150–237 Part 3: State liability under international and european law 150–237
- 150–166 G. Environmental liability in international law (Wolfrum) 150–166
- 150–151 I. Introduction 150–151
- 151–152 II. Notion – environmental liability – what does it mean and what is the purpose in the context of a liability regime? 151–152
- 152–161 III. Development of a regime on environmental liability: From liability for transboundary harm to genuine international environmental liability 152–161
- 1. Introduction – 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?
- 161–166 IV. Concluding observations: Necessary features of a regime on international environmental liability 161–166
- 1. Introduction
- 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
- 168–197 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 mitigatio... 168–197
- 168–169 I. Introduction 168–169
- 169–173 II. International policy & treaty commitments to climate justice & investment in carbon neutral/negative sustainable development 169–173
- 173–182 III. Climate change litigation guiding investment risk assessment & decision-making 173–182
- 182–196 IV. Innovations in investment law & policy related to clean energy, climate change and sustainable development 182–196
- 1. Treaty & policy developments
- 2. Investment treaty disputes
- 196–197 V. Conclusions 196–197
- 199–217 I. The Paris Climate Agreement and liability issues (Franzius/Kling) 199–217
- 199–200 I. Introduction 199–200
- 200–208 II. The Paris Agreement and the legal nature of its provisions 200–208
- 1. The Paris Agreement – binding or not binding?
- 2. Obligations in the main action areas
- 3. Compliance and enforcement
- 208–215 III. The Paris Agreement in the courtroom 208–215
- 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
- 215–217 IV. Conclusion and outlook 215–217
- 218–237 J. Liability of EU Member States under EU law (Purnhagen/Saurer) 218–237
- 218–219 I. Introduction 218–219
- 219–221 II. Greenhouse gas reduction obligations of EU Member States under EU law 219–221
- 221–223 III. EU Member State liability within the non-ETS sector: the obligation to purchase surplus allocations from other Member States as financial sanction 221–223
- 223–224 IV. Financial sanctions within the infringement procedure as liability mechanism 223–224
- 224–236 V. Liability of EU Member States under Francovich doctrine? 224–236
- 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?
- 236–237 VI. Conclusion 236–237
- 237–405 Part 4: Climate change litigation – national reports 237–405
- 237–253 K. Climate change litigation in the United States (Farber) 237–253
- 237–238 I. Introduction 237–238
- 238–244 II. Jurisdictional issues 238–244
- 1. Standing
- 2. Personal jurisdiction
- 3. Subject matter jurisdiction
- 244–250 III. Public law litigation 244–250
- 1. Litigation under the Clean Air Act
- 2. Litigation over disclosure of climate impacts
- 3. Adaptation issues
- 4. Non-statutory claims
- 250–252 IV. Tort liability 250–252
- 1. Nuisance law and climate change
- 2. Causation issues
- 3. Litigation prospects
- 252–253 V. Conclusion 252–253
- 254–271 L. Climate change litigation in Canada (Jodoin/McGinn) 254–271
- 254–255 I. Introduction 254–255
- 255–258 II. Climate law and governance in Canada 255–258
- 258–262 III. Litigation relating to the authority of the federal government to address climate change 258–262
- 1. Syncrude Canada Ltd. v. The Attorney General of Canada
- 2. The GHG pollution pricing reference cases
- 262–269 IV. Litigation relating to the obligation of governments and public bodies to address climate change 262–269
- 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
- 269–271 V. Conclusion 269–271
- 272–288 M. Climate change litigation in Brazil (Wedy) 272–288
- 272–274 I. Introduction 272–274
- 274–279 II. Climate change law and litigation in Brazil 274–279
- 279–281 III. Legal remedies which may be used in climate litigation in Brazil 279–281
- 281–286 IV. Climate litigation in Brazil: analyses of cases 281–286
- 1. Precedent of the Supreme Federal Court
- 2. Precedents by the Brazilian Superior Court of Justice
- 286–288 V. Conclusion 286–288
- 289–304 N. Climate change litigation in Australia (Bell-James) 289–304
- 289–290 I. Introduction 289–290
- 290–299 II. Climate change through the environmental impact assessment process 290–299
- 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
- 299–303 III. Emerging avenues for climate change litigation 299–303
- 1. Corporate law
- 2. Human rights law
- 3. Operators of emissions-intensive industries
- 303–304 IV. Conclusion 303–304
- 306–324 O. Climate change litigation in the United Kingdom (Ohdedar/McNab) 306–324
- 306–308 I. Introduction 306–308
- 1. Background to climate change litigation in the UK
- 2. Early history of climate litigation in the UK: 1990s to the mid-2000s
- 308–311 II. Litigating climate targets: holding the government to account 308–311
- 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
- 311–319 III. Litigating the transition to a low carbon society: clean energy, airports, and fracking 311–319
- 1. Litigation on wind and solar projects
- 2. Anti-fracking cases
- 3. Litigation against airport expansion
- 319–322 IV. Criminal prosecution of climate activism: an emerging area of climate litigation 319–322
- 322–324 V. Conclusions and the future climate litigation in the UK 322–324
- 324–336 P. Climate change litigation in Italy (Butti) 324–336
- 324–325 I. Introduction 324–325
- 325–329 II. Regulatory and planning framework on climate change in Italy 325–329
- 1. Mitigation measures
- 2. Adaptation measures
- 329–333 III. “Giudizio universale” (the last judgment): a high-profile case to be litigated by the first months of 2020 329–333
- 333–335 IV. Local court cases that are relevant to climate change litigation in Italy 333–335
- 335–336 V. Conclusion 335–336
- 337–363 Q. Climate change litigation in France (Epstein/Deckert) 337–363
- 337–338 I. Introduction 337–338
- 338–346 II. Climate change litigation in public law 338–346
- 1. Available remedies
- 2. Injury
- 3. Illegal act or conduct
- 4. The causal link between the damage and the misconduct
- 346–363 III. Climate change litigation in private law 346–363
- 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
- 363–378 R. Climate change litigation in the Netherlands – the Urgenda case and beyond (Van der Veen/De Graaf) 363–378
- 363–365 I. Introduction 363–365
- 365–372 II. The Urgenda case 365–372
- 1. The District Court judgment
- 2. The Court of Appeal ruling
- 3. The Supreme Court decision
- 4. Analysis and critique
- 372–377 III. Other developments in the Netherlands 372–377
- 1. Friends of the Earth versus Shell
- 2. The Climate Act
- 3. The Climate Agreement
- 377–378 IV. Conclusions 377–378
- 380–405 S. Climate change litigation in Germany (Weller/Nasse/Nasse) 380–405
- 380–382 I. Introduction 380–382
- 382–386 II. The scientific bases of climate change 382–386
- 1. The climate system
- 2. Greenhouse effect and greenhouse gases
- 3. Detection and attribution of climate change
- 386–387 III. Climate change litigation and private international law 386–387
- 387–392 IV. International jurisdiction of national courts 387–392
- 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
- 392–398 V. Applicable law 392–398
- 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
- 398–403 VI. Liability under German law 398–403
- 1. Compensation for already occurred damages
- 2. Protection from future impairments
- 3. Proof of causality as central hurdle of private climate actions
- 403–405 VII. Summary 403–405
- 407–535 Part 5: Liability for climate damages – Germany as an international pioneer? 407–535
- 407–429 T. Liability for climate damages under the German law of torts (Wagner/Arntz) 407–429
- 407–410 I. The German law of non-contractual liability: an overview 407–410
- 1. Overview
- 2. The law of delict
- 3. Nuisance law
- 4. Strict liability
- 410–412 II. A prominent case in German courts: Saúl Ananías Luciano Lliuya vs. RWE AG 410–412
- 412–423 III. The law of delict 412–423
- 1. Negligence liability, Section 823 (1) BGB
- 2. Breach of statutory duty, Section 823 (2) BGB
- 3. Actio doli, Section 826 BGB
- 423–423 IV. Strict liability 423–423
- 423–427 V. Law of nuisance 423–427
- 1. Actio negatoria, Section 1004 BGB
- 2. Section 906 (2) cl. 2 BGB and Section 14 cl. 2 BImSchG
- 427–429 VI. Conclusion 427–429
- 430–447 U. Liability for climate change damages under the German Environmental Liability Act (Nitsch) 430–447
- 430–431 I. Introduction 430–431
- 431–433 II. Basic principles of the UmweltHG 431–433
- 433–434 III. Nature of liability 433–434
- 434–435 IV. Facilities subject to the UmweltHG 434–435
- 1. Basic principles
- 2. Annex 1 catalogue
- 435–437 V. Damages subject to the UmweltHG 435–437
- 1. Basic principles
- 2. Climate change damages subject to the UmweltHG?
- 437–439 VI. Environmental impact 437–439
- 1. Basic principles
- 2. Environmental impact in the form of climate change
- 439–445 VII. Causation 439–445
- 1. Basic principles
- 2. Presumption of causation
- 3. Causation in cases of climate change damages
- 445–446 VIII. Temporal scope of application 445–446
- 446–447 IX. Conclusion 446–447
- 450–466 V. Climate protection and compliance in German corporate law (Habersack/Ehrl) 450–466
- 450–452 I. Introduction 450–452
- 1. Climate protection in current accounting and stock corporation law
- 2. The company’s external and internal relationships
- 3. Delimiting the object of study
- 452–455 II. The perspective of economic analysis and legal functionalism 452–455
- 1. The internalization of negative externalities as a guidance objective
- 2. Efficiency of lawfulness and compliance duties for legal enforcement
- 455–464 III. Climate protection and current corporate law 455–464
- 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
- 464–466 IV. Conclusion and prospects 464–466
- 469–487 W. Investor-led action for climate and business sustainability (Duve/Hamama) 469–487
- 469–470 I. Introduction 469–470
- 470–471 II. Climate change arrived in the investment community 470–471
- 471–475 III. Why is investor-led action needed? 471–475
- 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
- 475–477 IV. Time for investor-led action 475–477
- 1. Invest responsibly
- 2. Divest from non-sustainable businesses
- 3. Stay invested and take action
- 477–486 V. What can investor-led action achieve? 477–486
- 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
- 486–487 VI. Conclusion 486–487
- 488–507 X. Liability for climate damages under the Environmental Damage Act (Kahl/Stürmlinger) 488–507
- 488–489 I. Introduction 488–489
- 489–496 II. The concept of environmental damage 489–496
- 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
- 496–502 III. Responsible party 496–502
- 1. Category of persons concerned
- 2. Direct causation
- 3. Responsible party for climate damages within the scope of the EDA
- 502–505 IV. Legal effects 502–505
- 1. Obligations of the responsible party
- 2. Powers of the authorities
- 3. Selection of disturbers
- 4. Bearing of costs
- 505–507 V. Conclusion 505–507
- 509–535 Y. The role of non-governmental organizations for climate change litigation (Verheyen/Pabsch) 509–535
- 509–513 I. Introduction 509–513
- 1. NGO’s as representatives of the environment
- 2. NGO’s and climate litigation in practice
- 3. Climate litigation in Germany by defendants
- 513–516 II. NGO independent access to court as exception to the rule – the German standing rules in a nutshell 513–516
- 516–525 III. Formal role of NGO’s in climate litigation against the state 516–525
- 1. Standing in project related actions
- 2. Compliance with climate protection targets or other rules of climate law
- 3. Climate litigation against the state: Climate legislation
- 525–525 IV. Passive legal status of NGO’s 525–525
- 1. Intervention
- 2. Amicus Curiae – “friend of the court”
- 525–530 V. Perspective climate litigation to enforce climate law 525–530
- 1. Obligations under the EU Governance Regulation
- 2. The EU Climate Change Regulation
- 3. National climate protection law
- 4. Actions for adjustment and compensation
- 530–535 VI. Conclusion 530–535
- 535–561 Part 6: Conclusions: Liability for climate damages – synthesis and future prospects (Kahl/Weller) 535–561
- 535–537 I. Introduction 535–537
- 537–540 II. Fundamental questions 537–540
- 537–538 1. Sustainability and environmental justice 537–538
- 538–538 2. Polluter-pays principle 538–538
- 538–539 3. The role of the legislature and the judiciary 538–539
- 539–540 4. Duties of protection 539–540
- 540–541 III. Procedural issues and Conflict of Laws 540–541
- 1. Procedures before civil courts
- 541–541 2. Applicable law 541–541
- 541–541 3. Arbitration proceedings 541–541
- 541–543 IV. State liability under international and European law 541–543
- 543–549 V. Climate change litigation: country reports 543–549
- 543–544 1. USA 543–544
- 544–544 2. Canada 544–544
- 544–544 3. Brazil 544–544
- 544–545 4. Australia 544–545
- 545–546 5. United Kingdom 545–546
- 546–546 6. Italy 546–546
- 546–548 7. France 546–548
- 548–549 8. Netherlands 548–549
- 549–551 VI. Liability for climate damages – Germany as an international pioneer? 549–551
- 549–550 1. Environmental Damage Act 549–550
- 550–550 2. Role of the NGOs 550–550
- 550–551 3. Corporate climate responsibility 550–551
- 551–551 4. Delictual climate change liability 551–551
- 551–561 VII. Tendencies and prospects 551–561
- 551–552 1. Primacy of the legislature, supplemental function of the courts 551–552
- 552–553 2. Basic right or state objective: climate protection in the national constitutions? 552–553
- 553–554 3. Emission reduction objectives in the constitution? 553–554
- 554–558 4. Private enforcement 554–558
- 558–561 5. Conclusion 558–561
- 561–566 Index 561–566
