Emma Frances Lees

Climate policy after the Paris 2015 climate conference

The landmark 2015 Paris Agreement, adopted to widespread acclaim at the 21st Conference of the Parties (COP 21) to the United Nations Framework Convention on Climate Change (UNFCCC), reflects profound political cleavages and tensions, which were already condensed, even camouflaged, in the wording of the mandate that launched the negotiations, as set out in the 2011 Durban Platform for Enhanced Action. Of particular note are the opaque formulations defining both the mandate assigned to negotiators to work on ‘mitigation, adaptation, finance, technology development and transfer, transparency of action, and support and capacity building’ and the target outcome, potentially consisting of a ‘protocol, another legal instrument or an agreed outcome with legal force under the Convention applicable to all Parties’. Writing in hindsight, the authors of this Editorial would have hoped to be able to comment on how these many tensions were settled and perhaps solved. But this is, alas, not possible, at least not yet. Rather than settled, the tensions arising in many – perhaps most – major issues, ranging from mitigation to adaptation to the different avenues to promote implementation (above all finance) were instead ingrained into the text of the Paris Agreement, leaving them to be resolved (perhaps) through the instrument’s future operation. The wide diversity of possible interpretations of so many different parts of the Paris Agreement is clearly reflected in the contrasting views expressed in the articles of this guest-edited issue of Climate Policy. The range of interpretations was even wider in the conference held at the University of Cambridge, on 22 January 2016, from which several of these articles are derived. Such diversity may in turn be diversely interpreted. But in the opinion of the authors of this Editorial, this is worrying, because it has the potential to obfuscate, at least for now, attempts at answering the main question raised by COP 21: how confident can we be that the Paris Agreement has set the world on a path that will eventually avoid dangerous climate change? Not all the diverging views expressed and discussed at the Cambridge conference – and indeed in the wider commentaries and debates that have emerged since Paris – can be addressed in one guestedited issue. Before turning to those that are indeed encompassed here, it is worth highlighting one key tension that is hidden in both the wording of the Paris Agreement and the difference between the two global temperature targets referenced (albeit in different ways) in that agreement, namely,

Title by Registration: Rectification, Indemnity and Mistake and the Land Registration Act 2002

Our understanding of the system of registered title is crucial to our understanding of real property in general but there is no consensus as to the best way to interpret ‘correcting a mistake’ in Schedule 4 LRA 2002. This provision should be interpreted to mean that subsequent registrations following a ‘mistaken’ registration are not in themselves a mistake. Section 58 means that the subsequent transferee is relying on good title and a valid transfer and this ought to protect them from rectification. Where an original registered proprietor loses out as a result of this interpretation, they should be entitled to an indemnity however and this requires a change of approach to the interpretation of Schedule 8 LRA 2002. This approach best accords with the logic of the principle of title by registration whilst also avoiding a clash with Article 1, Protocol 1 ECHR.

Responsibility and liability for climate loss and damage after Paris

This article considers the loss and damage provisions of the Paris Agreement emerging from the 21st Conference of the Parties (COP) of December 2015, and examines the extent to which they represent an innovation from the voluntary-focused Warsaw International Mechanism (WIM). It concludes that whilst on its surface the Paris Agreement very much continues the WIM approach, the combination of the reference to differentiated responsibilities, the inclusion of a loss and damage article within the main Agreement, and the refusal to allow this article to act as a basis for liability raises some legal and policy ambiguities. These ambiguities raise the question as to whether it is necessary or useful to develop a responsibility allocation mechanism (which need not give rise to liability) in order to assess differentiated responsibilities for loss and damage, and if so, how such a mechanism might be constructed. This article then goes on to consider two alternative approaches to loss and damage: an insurance-based approach and an approach based on the twin pillars of causal connection and fault. The difficulties of designing an allocation mechanism on the basis of causation and fault are discussed. Nevertheless, it is concluded that if, in the future, as seems likely, there will be increasing pressure to determine some sort of responsibility allocation, these issues will need to be grappled with head-on. Policy relevance The article demonstrates the need to develop policy which is sensitive to the fine balance struck in the Paris Agreement between responsibility and liability for loss and damage, and prompts an open discussion as to how such responsibility ought to be allocated. It suggests that without such an open discussion, the effects of the Paris Agreement in relation to loss and damage will be limited.

Incoherence and incompatibility in planning law

Purpose – The purpose of this paper is to analyse the obligations imposing localism and the presumption in favour of sustainable development in English planning law. Design/methodology/approach – The paper uses doctrinal analysis to examine section 38 PCPA 2004 and the NPPF to assess whether the obligations are coherent when considered as stand-alone obligations, and whether they are compatible when combined. Case law and the statutory provisions are examined to assess this. Planning theory is also examined to bring a multidisciplinary focus to the analysis. Findings – The paper concludes that there are problems with these legal obligations when considered as stand-alone obligations. There is imprecision over the meaning of key terms; the “presumptions” established do not operate as true presumptions; and there is an ambiguity as to the hierarchy of norms and the allocation of decision-making control. When combined, the incoherence increases. It is argued that this occurs thanks to underlying disagreement...

The polluter pays principle and the remediation of the land

Purpose The purpose of this article is to examine the national law regimes related to the remediation of contaminated land. Design/methodology/approach The methodology used is comparative. Models for different systems are described on the basis of varying interpretations of the polluter pays principle. The regimes present in the Member States are then analysed to see which model they have adopted. A comparator from each model group is then considered. Findings This article presents three key findings. First, it concludes that the extent to which additional national legislation relating to environmental damage is permitted, which depends upon the notion of “more stringent” legislation, is incoherent where more than one interpretation is given to the polluter pays principle. Second, the different interpretations given to the principle undermine harmonisation. Finally, this has wider implications for how we justify liability for contaminated land. Originality/value This comparative study of the interpretation of the polluter pays principle, through its implementation in Member States, provides a valuable and novel insight into environmental liability regimes in Europe. It also demonstrates the different type of regimes that are developed on the basis of such different interpretations. Although the different national attitudes to contaminated land policy and remediation have been considered before, this article adds to this debate by suggesting a central cause of such variation in the shape of different interpretations of a principle of the European Union.

Rectification of the Register – Prospective or Retrospective?

In Gold Harp v MacLeod the Court of Appeal considered paragraph 8 of Schedule 4 of the Land Registration Act 2002 and interpreted this provision to mean that the priority between mistakenly de‐registered interests and registered interests can be altered following rectification. The court can give the de‐registered interest the priority which it ‘would have had’ but for the mistake. In other words, it allows for retrospective rectification. This case note concludes that this is the correct interpretation of paragraph 8 and of the words ‘for the future’. However, it argues that the current range of options available to the court in terms of rectification are producing uncertainty, and that a better approach may be to rely on the priority provisions in sections 28 and 29.

Richall Holdings v Fitzwilliam: Malory v Cheshire Homes and the LRA 2002

Richall Holdings v Fitzwilliam, holds that Malory v Cheshire Homes is binding in relation to the Land Registration Act 2002. Newey J saw himself as bound by that decision because he could find no relevant distinction between the provisions of the Land Registration Act 1925, and the Land Registration Act 2002. There are however significant differences in the general system of registration that is established. In particular the different roles of section 20 LRA 1925, and section 29 LRA 2002 mean that Malory was not binding and indeed ought not to have been followed. In addition, the treatment of the priorities rules in Richall misinterprets section 29 LRA 2002. Finally, the decision by‐passes the rectification and indemnity provisions of schedules 4 and 8. The decision ought to be overruled.

Morphological analysis of legal ideology: locating interpretive divergence

Purpose The purpose of this paper is to present a “manifesto” exploring a methodological approach to legal analysis, relying upon a morphological understanding of ideology. Design/methodology/approach The authors explore ideology within law and legal culture. They examine one such ideology – rule of law – and consider how this can shape judicial decision-making. They suggest techniques by which such influences can be identified. Findings The authors make four findings. First, following Freeden, ideology can be understood as a ubiquitous form of political thinking which seeks to fix the meanings of essentially contested concepts. Second, ideology in this sense forms an important part, but is distinguishable from the wider notion of legal culture. Considering ideology in law as a sub-system of legal culture can therefore be fruitful in providing a rich understanding of interpretive disagreements among the judiciary. Third, rule of law as an ideal is itself ideological, as it comprises contested concepts such as certainty, equality, stability and legality. It can be considered to constitute an internal ideology of law and it can be analysed how the concepts are de-contested in individual decisions. Finally, understanding this can help in the analysis of judgments in areas with high levels of administrative discretion and political contestation, such as planning and environmental law, as it helps us to understand how any particular judge sees the role of the court in its wider political context. Originality/value The originality of the authors’ approach lies in the drawing together of methodological techniques and understandings of ideology in, and in relation to, law.

Liability for Contaminated Land: Powys County Council v Price

Powys County Council v Price, a follow-up to the decision of the House of Lords in R (National Grid Gas Plc) v Environment Agency (hereafter National Grid Gas), is concerned with the question of when statutory successors to public authorities will be liable as Class A persons (polluters) for having ‘caused or knowingly permitted’ the relevant substances to be in, on, or under the land, thanks to the contaminated land provisions contained in the Environmental Protection Act 1990, Part IIA. In deciding that such a body will not be liable unless the legislation establishing the succession on its wording specifically makes such liabilities pass – an outcome which is highly unlikely – the Court emphasises that corporate identity is critical to liability under the provisions but also goes beyond the earlier decision in National Grid Gas. The result is that the burden of remediating land contaminated by a public authority whose identity has changed, and where the acts were committed before the relevant provisions came into force, will almost certainly fall on the owner or occupier of the land for the time being. This note discusses the facts and reasoning in this case, before considering the questions raised by the decision: the issue of succession and the definition of polluter; the question of contingent liabilities; and the consequences of finding that the only ‘appropriate person’ is the owner or occupier of the contaminated land.

Concretising the precautionary principle in habitats protection – Grüne Lige Sachsen v Freistaat Sachsen and Orleans v Vlaams Gewest

Introduction In two recent decisions (C-399/14 Grüne Lige Sachsen v Freistaat Sachsen and C-387/15 and C-388/ 15 Orleans v Vlaams Gewest), the Court of Justice of the European Union (CJEU) has again considered the role which the precautionary principle plays in assessing proposed developments under the Habitats Directive. The court was asked to explain how measures designed into development plans, which aimed at maintaining natural features on a site, or creating new ecological areas within a wider development, fit into the assessment process mandated by the Habitats Directive. It also addressed the question of the need to review consents in light of subsequent designation. These cases can be considered as follow-up judgments to those in Briels and Sweetman, but are also significant in their own right: in their treatment of the precautionary principle and in fleshing out precisely what that means a decision maker needs to demonstrate they go beyond the current rules and provide a sense of certainty and clarity.