Jacqueline Peel

Climate Change Law in an Era of Multi-Level Governance

As international negotiations struggle to deliver timely, binding commitments to reduce greenhouse gas emissions to safe levels, the environmental legal community has begun to contemplate the scope for climate governance ‘beyond’ the international climate change regime. Many see merit in a more decentralized, disaggregated approach, operating across multiple governance levels. This article examines the development of climate change law in an era of multi-level governance. It analyzes several case studies of current manifestations of multi-level governance in climate change law, including: the fragmented global emissions trading system; developing arrangements governing forests and land-based sinks; the growth of climate litigation establishing transnational liability principles; efforts to ensure adaptation to unavoidable climate change; and the emergence in federal systems of a decentralized approach to climate change regulation. The article concludes by considering whether the emerging multi-level system of climate governance is adequate to meet broader international goals of climate change mitigation and adaptation.

Australia's Carbon Pricing Mechanism

The commencement of the carbon pricing mechanism (CPM) on 1 July 2012 marks a significant milestone in Australia’s legal and policy response to climate change. Negotiated as part of a suite of measures forming the Clean Energy Package, the CPM represents an important achievement for Australia, which has up until this point struggled to implement comprehensive national climate change policy. After an initial fixed price period, the CPM will transition to fully flexible cap-and-trade emissions trading scheme on 1 July 2015, bringing it into line with other jurisdictions around the world. This note outlines five key features of the CPM: (1) the institutions and governance arrangements; (2) the price containment measures; (3) the scope for inclusion of offset credits; (4) the possibility for linking with other emissions trading schemes; and (5) the compensation arrangements for emissions-intensive industries. The article comments on how these design features affect Australia’s ability to contribute effectively to global emissions reduction efforts through the CPM.

Issues in Climate Change Litigation

Climate change is an urgent environmental problem yet many governments have struggled to develop an effective national regulatory response. Instead, environmental advocates have turned increasingly to courts for a solution, mounting ambitious climate change cases in countries such as Australia and the United States, as well as under international law. This article examines several cross-cutting issues that present challenges for potential litigants across the broad spectrum of climate change litigation. They include problems of proof, of dealing with cumulative and indirect impacts, and of establishing a significant contribution to global warming, as well as issues surrounding the respective roles of courts and legislatures in developing a regulatory response to the problem of climate change.

A Rights Turn in Climate Change Litigation

In 2015, a Pakistani court in the case of Leghari v. Federation of Pakistan made history by accepting arguments that governmental failures to address climate change adequately violated petitioners’ rights. This case forms part of an emerging body of pending or decided climate change-related lawsuits that incorporate rights-based arguments in several countries, including the Netherlands, the Philippines, Austria, South Africa, and the United States (US). These decisions align with efforts to recognize the human rights dimensions of climate change, which received important endorsement in the Paris Agreement. The decisions also represent a significant milestone in climate change litigation. Although there have been hundreds of climate-based cases around the world over the past two decades – especially in the US – past and much of the ongoing litigation focuses primarily on statutory interpretation avenues. Previous efforts to bring human rights cases have also failed to achieve formal success. The new cases demonstrate an increasing trend for petitioners to employ rights claims in climate change lawsuits, as well as a growing receptivity of courts to this framing. This ‘rights turn’ could serve as a model or inspiration for rights-based litigation in other jurisdictions, especially those with similarly structured law and court access.

Climate Change Litigation's Regulatory Pathways: A Comparative Analysis of the United States and Australia

This article provides a critical next step in scholarship on climate change litigations regulatory role. It creates a model for understanding the direct and indirect regulatory roles of this litigation. It then applies this model to the United States and Australia, two key jurisdictions for climate change lawsuits, in order to explore the regulatory pathways that this litigation has taken, is taking, and likely will take. This analysis helps to illuminate the ways in which litigation influences regulation and forms part of climate change governance.

Precautionary Only in Name? Tensions between Precaution and Risk Assessment in the Australian GMO Regulatory Framework

This challenging book takes a broad and thought-provoking look at the precautionary principle and its implementation, or potential implementation, in a number of fields. In particular, it explores the challenges faced by public decision-making processes when applying the precautionary principle, including its role in risk management and risk assessment. Frameworks for improved decision-making are considered, followed by a detailed analysis of prospective applications of the precautionary principle in a number of emerging fields including: nanotechnology, climate change, natural resource management and public health policy. The analysis is both coherent and interdisciplinary, employing perspectives from law, the social sciences and public policy with a view to improving both the legitimacy and effectiveness of public policy at national and international levels.

Climate change litigation's regulatory pathways

This article provides a critical next step in scholarship on climate change litigations regulatory role. It creates a model for understanding the direct and indirect regulatory roles of this litigation. It then applies this model to the United States and Australia, two key jurisdictions for climate change lawsuits, in order to explore the regulatory pathways that this litigation has taken, is taking, and likely will take. This analysis helps to illuminate the ways in which litigation influences regulation and forms part of climate change governance.

Foreword to the TEL Fifth Anniversary Issue: Re-evaluating the Principle of Common But Differentiated Responsibilities in Transnational Climate Change Law

In December 2015, parties to the United Nations Framework Convention on Climate Change (UNFCCC) adopted the Paris Agreement, committing all nations to undertake ambitious efforts as part of the global response to climate change. This ‘historic’ moment in the long-running international climate change negotiations provides an opportunity to consider and re-evaluate the role of one of the most important, but also enduringly controversial, principles of transnational climate change law and broader international environmental law – the principle of common

Development of climate law in Australia

Introduction Climate change, as we have seen, is the quintessential global environmental issue in the sense of being an indivisible problem with global causes and effects. Its global dimensions support the logic of the development of an international climate law framework, as described in the previous chapters. However, climate change also has important implications for domestic legal frameworks. This is partly because international climate change treaties, like other international environmental laws, depend heavily upon the national implementation of measures such as reliable reporting systems for their effectiveness. It is also because the complex environmental and economic consequences of climate change include local effects (in the area of biodiversity, for example), as well as regional and national effects (for example, shifts in patterns of energy use). With continuing uncertainty at the international level over the shape of future legal arrangements, climate law at the national level has taken on a new prominence. This is not to say that domestic climate law has been completely freed from the bonds imposed by international agreements, nor from the imperatives created by the need for a collective effort to respond to the global problem. However, as we highlighted in Chapter 1, an increasing refrain in climate law scholarship and policy discussion is debate over whether regulation should be ‘top-down’ or ‘bottom-up’. This has seen greater attention paid to legal developments taking place at the sub-national, national and regional levels, in addition to top-down regulation at the international level establishing emission reduction obligations for states.

Principles of International Environmental Law: General principles and rules

INTRODUCTION This chapter describes the general principles and rules of international environmental law as reflected in treaties, binding acts of international organisations, state practice, and soft law commitments. The existence and applicability of ‘principles of international environmental law’ were confirmed by the arbitral tribunal in the Iron Rhine case. Such principles are general in the sense that they are potentially applicable to all members of the international community across the range of activities that they carry out or authorise and in respect of the protection of all aspects of the environment. From the large body of international agreements and other acts it is possible to discern general rules and principles that have broad, if not necessarily universal, support and are frequently endorsed in practice. These are: (1) the obligation reflected in Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration, namely, that states have sovereignty over their natural resources and the responsibility not to cause transboundary environmental damage; (2) the principle of preventive action; (3) the principle of co-operation; (4) the principle of sustainable development; (5) the precautionary principle; (6) the polluter pays principle; and (7) the principle of common but differentiated responsibility. In the absence of clear judicial authority, and in view of the conflicting interpretations under state practice, it is frequently difficult to establish the parameters or the precise international legal status of each general principle or rule. The application of each principle in relation to a particular activity or incident, and its consequences, must be considered on the facts and circumstances of each case, having regard to several factors, including: the source of the principle; its textual content and language; the particular activity at issue; the environmental and other consequences of the activity; and the circumstances in which it occurs (including the actors and the geographical region). Some general principles or rules reflect customary law, others may reflect emerging legal obligations, and yet others might have a less developed legal status. In each case, however, the principle or rule has broad support and is reflected in extensive state practice through repetitive use or reference in an international legal context.