David R. Hodas

International Law and Sustainable Energy: A Portrait of Failure

Despite energy’s critical role in achieving nearly sustainable development and in mitigating climate change goal, internationally, sustainable energy remains a homeless orphan. In May 2007, after years of preparatory work that was thought to have produced consensus on fundamental sustainable energy policies and principles, the Commission on Sustainable Development met at CSD-15 to adopt a concrete set of specific policies and actions to make the world’s energy system more sustainable and accessible to the world’s poor. Tragically, the CSD-15 not only failed to produce agreement on any new ideas, but the pre-existing consensus on basic principles dissolved. Internationally, not a single substantive issue left hanging after CSD 15 has been resolved in the CSD or other fora, As high-level meetings, such as the UNFCCC December 2009 Copenhagen Conference of the Parties, continue to avoid concrete discussion about how to shift to a more sustainable, low carbon world economy, international talks increasingly become disconnected from real-world policy, science and law. In the absence of international agreement, sustainable energy must be pursued through domestic laws that identify and implement policies that promote energy efficiency and renewable energy investment.

Private Actions for Public Nuisance: Common Law Citizen Suits for Relief from Environmental Harm

This Article reviews the evolution of public nuisance law since the 1972 article by Bryson and Macbeth and focuses on two issues: 1) the evolution of the traditional special injury rule into a two-pronged doctrine of standing (injury-in-fact) and proximate cause, and 2) the viability of public nuisance actions in light of existing environmental statutes. The first section of Part I analyzes the reasons why the traditional policies supporting the special injury rule are no longer valid. The second section reviews a number of cases involving actions for damages where the courts, at least implicitly, have not applied the special injury rule to limit standing, then it analyzes how courts have dealt with the rule in equitable and class actions. Part II discusses the relationship between the public nuisance doctrine and state and federal environmental statutes.The Article concludes that, in litigation concerning serious environmental or toxic issues, some courts have accepted public nuisance claims, even though they have not explicitly rejected the special injury rule. It advocates that courts take the final step and reject the special injury rule outright, because private plaintiffs must not be barred at the courthouse door by an outdated special injury rule if public nuisance claims are to fill statutory gaps and help establish standards of reasonable conduct.

Sustainable Development and the Marrakech Accords

The United Nations Framework Convention on Climate Change (UNFCCC) Conference of the Parties (COP) in Marrakech drafted a legal and institutional structure to govern various market-based mechanisms to limit greenhouse gas (GHG) emissions. This governance instrument incorporated both economic and environmental considerations at every stage of the decision-making process. The Marrakech Accords operational guidelines govern three alternative market-based approaches: Clean Development Mechanism; Joint Implementation; and Emissions Trading. The Marrakech Accords require the development of principles and rules for measuring emission baselines and additionality which define what is a valid GHG emission reduction, the degree sustainability influences project approval, and overall transparency. Several standards have been proposed. These are analyzed and compared in this article. To date, the WWF Gold Standard offers the most efficient and commercially viable methods to achieve global sustainability.

The Externalities of Global Warming

The societal cost of CO2 emissions from fossil fuel combustion can be measured as (1) the cost of enduring or repairing the damage caused by global warming; (2) the cost of controlling the harm by reducing greenhouse gas emissions; or, (3) the cost of mitigating the harm by sequestering emitted CO2 in trees.

Using Environmental Externalities to Regulate the Risk of Harm From Greenhouse Gas Emissions

The idea that environmental damage from industrialization is external to the economic market for industrial products has become of increasingly practical importance as the result of the United Nations Framework Convention on Climate Change. The Convention seeks: […] stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system within a time frame sufficient to allow ecosystems to adapt naturally, ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner.1