Marjan Peeters

Climate Change Liability

Contents: Introduction PART I 1. Introduction to the Book Michael Faure and Marjan Peeters PART II: CROSS-CUTTING THEMES 2. Liability with and Liability from the Precautionary Principle in Climate Change Cases Miriam Haritz 3. High Noon: Prevention of Climate Damage as the Primary Goal of Liability? Jaap Spier PART III: EUROPEAN PERSPECTIVE 4. Liability of Member States and the EU in View of the International Climate Change Framework: Between Solidarity and Responsibility Javier de Cendra de Larragan 5. The Regulatory Approach in the EU in View of Liability for Climate Change Damage Marjan Peeters 6. Potential Liability of European States Under the ECHR for Failure to Take Appropriate Measures with a View on Adaptation to Climate Change Armelle Gourtin PART IV: NATIONAL PERSPECTIVES ON CIVIL LIABILITY 7. Climate Change Litigation in the UK: Its Feasibility and Prospects Giedre Kaminskaite 8. Liability for Climate Change-Related Damage in Domestic Courts: Claims for Compensation Within the USA Elena Kosolapova 9. Civil Liability for Global Warming in The Netherlands Chris van Dijk 10. Will Civil Society Take Climate Changers to Court? A Perspective from Dutch Law Phon Van den Biesen 11. Governmental Liability: An Incentive for Appropriate Adaptation? Ben Schueler PART V 12. Concluding Remarks Michael Faure and Marjan Peeters

Governing towards renewable energy in the EU: competences, instruments and procedures

This contribution maps new questions and explores potential problems in EU renewable energy law, focusing on competences, regulatory instruments and administrative procedures. The transition towards renewable energy concerns a major transformation of society, which cannot be done on a voluntary basis, and for which law, with all its complexities, has to play a crucial role. Within the EU, the need to establish renewable energy is a legally binding task for which a special legislative framework has been adopted on the basis of the environmental competence. In order to reach the 20% mark for renewable energy by 2020, dramatic action has to be conducted by Member States, and several overlaps between the EU regulatory climate and energy instruments complicate the implementation of the legislative framework further. EU renewable energy law is likely to be a tempestuous field of law with an increasing number of court cases, particularly concerning actions brought by citizens against renewable energy projects. Finally, for the period after 2020, there will be a discussion of which TFEU article could serve as the correct legal basis for any further renewable energy commitments, particularly in view of the special (but limited) energy competence introduced by the Lisbon Treaty.

Economic Instruments: Suited to Developing Countries?

This book asks whether environmental law and policy in developed countries can be successfully transferred to developing countries. It questions whether developing countries are indeed ready and able to implement new ideas from the developed world, such as the integration of environmental law, and use of market-oriented instruments.

Greenhouse gas emissions trading in the EU

The major regulatory experiment with greenhouse gas emissions trading in the EU enables legal scholars to learn lessons regarding its design options and implementation problems. Some fundamental concerns are: (1) the issue of how to develop a fair allocation method, also in view of carbon leakage; (2) the question of how to align emissions trading with procedural rights prescribed by the Aarhus Convention; and (3) the question of how to build a reliable monitoring and enforcement approach. Case law has emerged regarding core aspects of the scheme, such as its coverage in relation to the principle of equal treatment, the inclusion of extraterritorial aviation emissions, access to trading data, and the strictness of the enforcement approach. Legal scholars have tried to understand how the economic instrument fits into the EU legal framework, but more work remains to be done, also in view of future changes to the EU ETS.

The EU ETS and the role of the courts: Emerging contours in the case of Arcelor

This article presents an in-depth examination of how one of the EU’s courts has assessed a foundational claim against the EU ETS. It concerns the Arcelor case, in which a large steel company filed an application before the General Court of the EU requesting the partial annulment of the European legislation establishing the EU ETS and claiming damages. The industry lost the case, but the considerations of the court offer a valuable contribution to the much-needed broader discussion about the proper design of legislative frameworks for trading greenhouse gas emissions rights. In particular, the court provided an interesting discussion on the principle of equal treatment, the cancellation of allowances in the case of the closure of an installation, and the need for price regulation. However, some shortcomings in the court’s decision are evident. The article concludes by observing that, besides the interest in examining what the actual case law means for the specific design and application of emissions-trading schemes like the EU ETS, it is equally important to examine the ways in which courts succeed in assessing claims about this complicated regulatory instrument.

Exploring Governmental and Victim Responsibilities in View of Abrupt Climate Change in North-Western Europe

The climate change problem forces the government to implement a policy protecting its society and economy against the possible damage that might be caused by changing weather conditions. At the same time, it can be questioned to what extent citizens are able to (and should) take responsibility to avoid climate change damage, and how the government can enact policies to stimulate such private action. In addition, the particular case of a highly uncertain but possible abrupt climatic event challenges society even more, because the large uncertainty complicates the development of cost-effective strategies for avoiding harm. In this perspective, this essay discusses the following sub questions: 1) Which fundamental legal starting points determine the role of the government with respect to an abrupt cooling down from 2015 onwards?; and 2) Which legal instruments can be thought of with respect to engaging the responsibility of potential victims - and especially of citizens - in dealing with prevention and compensation of damage resulting from this temperature fall? And how can the government help in compensating damages? The first question will be discussed within the context of the legal system of in particular the Netherlands, thereby focusing on positive obligations of the government in order to protect the environment and, in a broader sense, the living conditions of men. The second question will be mainly discussed from a perspective of law and economics. In the final conclusion, we present key topics for future legal research towards the role of the government regarding abrupt climatic events.

Sustainable Development and Law

Since the emergence of the concept of sustainable development, lawyers across the globe are trying to come to grips with its legal status and the potential legal consequences (See Bosselmann, Sustainability law. Ashgate Publishing, 2008; French, Sustainable development. In: Fitzmaurice M, Ong DM, Merkouris P(eds) The research handbook on international environmental law. Edward Elgar, 2010, and Barstow Magraw D. Hawke LD, Sustainable development. In: Bodansky D, Brunnee J, Hey E (eds) Oxford handbook of international environmental law. Oxford University Press, 2007). Nowadays, the concept of sustainable development is represented in legally binding texts at international, European, and national levels. Taking EU law as an example, both the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) refer to sustainable development in several articles. This clearly means that sustainable development is part of EU law. The real question, however, is whether this reference to sustainable development in binding law has any significant consequence for legal practice. Can, for instance, the Court of Justice of the European Union annul a decision of the European Commission should this decision be qualified as conflicting with sustainable development? Such a far-reaching and dramatic annulment is most unlikely under EU law, while the potential legal consequences of sustainable development will probably be more subtle. This chapter provides insight into the appearance of sustainable development in international and EU law and gives observations on its possible legal effects and the importance of national decision-making in view of sustainable development.

The emergence of global climate law

As the chapters in this Encyclopedia demonstrate, climate law is a dynamic and multidisciplinary field, implicating many diverse fields of law at all levels from municipal planning through multinational treaties. The outlines of an emerging global law can be discerned, including shared principles such as common but differentiated responsibility and also widely adopted instruments such as emissions trading. But it remains to be seen whether a mature climate change regime will be top-down, driven by a comprehensive global treaty, or polycentric, with many interacting sources of law. The Paris Agreement of 12 December 2015 is indicative of the latter trend. The role of the courts is still unclear, particularly the extent to which they will provide the impetus for government action. Future legal scholarship will need to address many crucial issues: identifying implemen- tation methods to translate the goals of climate law into concrete achievements, adapting other areas of law to cope with climate change, dealing with conflicting values such as cost-effectiveness versus human rights, and designing new mechanisms for the unprec- edented level of cooperation mandated by climate change.

An EU Law Perspective on the Paris Agreement: Will the EU Consider Strengthening its Mitigation Effort?

The European Union is the only party to the UNFCCC that is a regional organization. The European Union’s Intended Nationally Determined Contribution, submitted on behalf of itself and its member states, contains a pledge to reduce domestic greenhouse gas emissions by at least 40 per cent by 2030 compared with 1990 levels, in pursuit of the general objective to keep the global average temperature increase below 2°C. Given, however, that the Paris Agreement aims not only to hold the increase ‘well below’ 2°C, but also to ‘pursue efforts’ to limit the increase to 1.5°C, one wonders whether the outcome of cop 21 may lead the European Union to a reconsideration — with possibly a strengthening — of the mitigation effort proposed in its INDC.

Contrasting emission trading in the EU and China: An exploration of the role of the courts

China and the EU have both engaged in formulating climate laws in order to contribute to a global reduction of greenhouse gas emissions. The focus of both is on emission trading. This instrument is designed and implemented according to very different political and legal systems in China and the EU. The rule of law in the EU is understood to mean that access to the judicial system for those affected by the emission-trading scheme is crucial. This can be illustrated by the emergence of a large body of case law on the issue. China, by contrast, is still in the process of building a governance system based on the rule of law, and thereby faces the challenge of setting up a court system that will act independently of a powerful government. While in the EU industries may launch a legal action in order to acquire a more profitable position on the allocation of emission allowances, in China it is still an open question whether industries covered by the emission-trading scheme will be permitted to take their case to court. How does this difference affect the functioning of the instrument in the two jurisdictions? In the EU, so far, the environmental effectiveness of the emission-trading scheme does not appear to have been negatively impacted by court proceedings initiated by indus¬try. While the powerful role of the government in environmental protection in China could be valuable for the achievement of environmental aims, weak judicial control of governmental action could mean either a strict implementation of emission reductions or a lenient approach that tolerates a flexible, less ambitious, implementation.