by William C.G. Burns and Hari M. Osofsky (eds). New York: Cambridge University Press, 2009. 412pp. Hardback: $90.00/ £50.00. ISBN: 9780521879705. eBook. $72.00. ISBN: 9780511590658.
Reviewed by Magali Dreyfus, Research Scholar, IIASA- International Institute for Applied Systems Analysis, Laxenburg, Austria. Email: dreyfus [at] iiasa.ac.at.
In the international academic world, there is a growing literature analyzing climate change, its impacts and the potential responses. An important number of volumes have been published in various disciplines such as natural sciences, applied sciences, economics, social sciences and so forth. However, despite how multidisciplinary the subject may be, the legal perspective on that issue is still little represented. Burns and Osofsky tackle climate change through litigation and bring answers to legal scholars and lawyers wondering how they could contribute effectively to this hot topic of debate.
Against this background, ADJUDICATING CLIMATE CHANGE gathers the contributions of distinguished authors who investigate the regulatory significance of lawsuits. It demonstrates that in a multiscalar governance system, litigation allows giving weight to and managing the different interests involved. The book also sheds light on how litigation can be an efficient tool to encourage and foster political action.
The volume is divided into an introduction followed by three sections and a conclusion. Each section considers one jurisdictional level: subnational, national and supranational. The introduction is an overview of the volume. It describes the scientific background of the climate change debate and turns on the current international responses. It shows how the insufficiency of these responses has prompted actors at different levels (international, national, local) to opt for other tools. Among these, the number of lawsuits and legal actions has considerably increased. Civil society and public authorities have found in litigation an efficient way to solve the disputes arising from the interaction of multiple actors and concerns which the climate change issue implies.
In Section I, four chapters examine subnational cases studies. Stephanie Stern (chapter 2) examines the Minnesota environmental cost valuation regulation. She argues the lack of federal legislation has made the states adopt their own initiatives. Even if normative provisions may be more symbolic than effective, they have an important political meaning and the threat of future harsher measures induces good behaviors. Lesley McAllister (chapter 3) explores environmentalists’ actions to compel government agencies to assess greenhouse gas (GHG) emissions before awarding permits for new coal mine projects in Australia. There, in absence of alternative regulatory instruments, litigation has been successful in binding policy officers to consider climate [*488] change. In chapter 4, a New Zealand case is presented by Katherine Trisolini and Jonathan Zasloff’s At issue is a case of mistrust between national judges and a local government regarding land use planning. It highlights the difficulty (and necessity) of assessing the plurality of concerns that motivate local decisions and in that context, the limits of advocacy strategies. Mary Christina Wood (chapter 5) brings us back to the US and observes “atmospheric trust litigation” as a means to hold governments accountable for reducing carbon emissions. This litigation shows how public trust law provides an efficient tools to tackle the issue of government responsibilities. However it also recalls the necessity to develop innovative legal responses to address the carbon loading of the atmosphere. As a whole, this first section shows how the division of responsibilities concerning climate change is blurred between public authorities. Are national institutions liable for climate change or are local governments the only actors truly interested and able to take efficient action? Although there is no definitive answer to that question, the authors demonstrate that litigation effectively contributes to the debate by re-stating responsibilities and highlighting what are the different interests to take into account when deciding upon what should be done by whom.
Section II consists of five national case studies. Hari Osofsky introduces MASSACHUSTTS v. EPA as an illustration of the interaction between regulatory scale, science and law (chapter 6). He analyses how scale and science are used as legal arguments and how their management could improve judicial decision making. Brendan Cummings and Kassie Siegel address the listing of endangered species in the US (chapter 7). They study how this legislation may raise awareness of, and address the topic of global warming. Amy Sinden (chapter 8) tackles the elaboration of a new category of human right in Nigeria, namely the right to security from climate change. She emphasizes how human rights may constitute a legal basis for the courts to punish heavy emitters. Samuel Grossman (chapter 9) examines the use of one of the most common legal tools: tort law. He considers how companies may be held liable for the impacts of the emissions they produce. To that regard, public nuisance and product liability appear to be the most promising claims. Grossman argues that tort litigation has strong legal merits and that the number of cases have increased. Finally, Jeffrey Stempel (chapter 10) studies how insurance systems may contribute to environmental risk management. He argues that in the context of lawsuits, insurers are made to work on conflict resolution. This is precisely what leads them to develop expertise and to provide new funding for the valuation of climate change effects and liabilities. Hence, this second section provides examples of lawsuits at the national level. It shows that authorities and companies now must be aware of the problems and anticipate the impacts of their action, as their liability is at risk. However, the wide variety of legal regimes used blurs a little the issue of climate change and makes an uncertain legal environment not only for all parties , lawyers, governments, and emitters.
In section III, six supranational case studies analyse international law mechanisms to take action. Once again, [*489] these are quite varied. Erica Thorson (chapter 11) presents the use of the World Heritage Convention (WHC). NGOs took action against state parties because of the deterioration endured by some sites due to climate change. The petition is based on the duty of the states to cut down their GHG emissions. Thorson shows how culture and nature conservation within the framework of the WHC may actually imply legal obligations to develop mitigation strategies for the states parties. Then Osofsky demonstrates that human rights may also be a ground for action at the international level, to ask reparation for climate change impacts(chapter 12). She studies the petition of the Inuits against the US climate change policy in front of the Inter-American Commission on Human Rights, and discusses the importance of the Inuit petition to create and foster dialogue with national institutions as well as to raise awareness on the cross-cutting nature of the climate problem. Jennifer Gleason and David Hunter (chapter 13) demonstrate how international financial institutions have increasingly tackled the topic of climate change litigation over the past two decades. They explore the accountability mechanisms associated with financial institutions and their potential opportunities for climate policies. William Burns (chapter 14) focuses on the UN Fish Stock Agreement (UNFSA). In that context, litigation is motivated by the loss of various fish stocks due to the degradation of the marine environment. Burns identifies how the UNFSA can be used to bring an action against a state party. Andrew Strauss (chapter 15) explores the potential development of climate litigation in front of the International Court of justice (ICJ). He shows how the uniqueness of the ICJ makes it the ideal court to deal with the supranational issue of climate change. However he also acknowledges hurdles and argues that litigation is an important tool to complement a global political strategy. Finally, Hunter (chapter 16) assesses what climate change litigation brings to the general international environmental legal regime. The focus that lawsuits put on the victims increases the pressure on policymakers and may accelerate their reaction. It also raises awareness among businesses and industries that may be exposed to climate liability. Therefore section III shows how international norms, of which enforceability is often questioned, can actually be implemented. Through litigation, soft law instruments are also used and thus are demonstrated to have a quasi legal effect which induces the states to act. Although these supranational lawsuits are not completely efficient and often states authorities do not feel bound by them, the threat of these actions certainly have a stimulating effect. Moreover section three highlights the very complex nature of the climate change issue. This is not only about the environment but also about human rights, which underscores its very supranational and crucial nature.
In the conclusion, Osofsky argues that litigation is part of transnational regulation of climate change. She tackles two questions. At what scale should the various aspects of the problem of climate change be regulated? What role does and should litigation play in establishing appropriate regulatory scale? She concludes that climate change litigation allows rescaling of the regulatory responsibilities. Through cases, different levels of governance are confronted and [*490] the rightness of interventions across the scales is discussed and assessed in courts. These debates can therefore, in certain circumstances, shed light on the most appropriate regulation level. Hence as a place of interaction between actors, litigation plays a crucial role in the regulatory framework. It also complements traditional normative instruments such as treaties and laws. Climate litigation therefore appears to be a precious tool to cope with the multilevel governance issue.
In many countries, climate change litigation is not so well developed. With its systematic analysis of cases from such different ﬁelds, countries and levels of regulation, this volume makes a substantial contribution to our understanding of the climate change litigation issue. It is very interesting to see how tools entrenched in different legal regimes (tort law, human rights, culture and nature conservation, etc) may be used to support climate change lawsuits. The book shows that there are two different legal paths: regulatory action against authorities who fail to act or who act wrongfully, and action against emitters. Moreover, the analysis of international conventions and instruments (which usually remain non mandatory instruments or secondary institutions with respect to the states) and their “legal potentialities” are equally enriching. It proves that they are legal actions are actually doable when normative provisions are used adequately. Burns and Osofsky have collected papers that definitively indicate that climate change litigation contributes to the regulatory system. Courts are a sphere of dialogue for different stakeholders and allow increased awareness. They somehow also favor networking by bringing together the different actors and their expertise to negotiate on concrete issues.
The book has a few shortcomings. The first section dedicated to subnational level is a little deceiving. One would have expected more examples of truly local issues, involving cities and district authorities, instead of sub-federal states lawsuits, which in the end largely share the national level characteristics. These cases of sub-federal states lawsuits show, however interestingly, how the lack of federal action create a need for a state political response, although resources may be limited at this level. Then section II lacks a variety of foreign examples (only one) while for example, German climate change lawsuits would have deserved a study. Indeed, a short-coming of the book is the lack of examples drawn out of the civil law systems, in spite of the clearly international scope of the volume (the editors claim that courts have become a crucial battleground and this at every level of government around the world). Japan and many European countries have consistent legislation on climate change and there is a lot to learn from how they are enforced. In particular, a wider international approach would have allowed us to explore the reasons why in other systems, climate change issues do not reach the courts. A comparison with the US system also would have allowed insight whether litigation always plays a positive regulatory role and if it is right to put emphasis on it. Nonetheless these weaknesses are offset by the value of each individual contribution which provides in-depth knowledge of the processes they describe. [*491]
The volume can be used for different purposes. For practitioners, it provides a precious summary and analysis of the most important cases, with a particular focus on the US. It can also be inspiring for foreign lawyers where climate change case law is still little developed. In fact, the examples collected in the book may be evocative as regards to the legal bases or regimes used. For policymakers, the book has an important instructive value concerning what risks they face and opportunities they have, in their action or lack of action. This will be equally enlightening for NGOs and civil stakeholders.For academics, this book demonstrates that law has an important role to play in climate change science. It will provide scientists from other disciplines with insight how legal research can complement and support other political or scientific studies.
ADJUDICATING CLIMATE CHANGE is a unique volume. Litigation related to climate change had never been the object of such a comprehensive work. This is very useful for a wide range of researchers and practitioners. Hopefully, this volume will inspire academics from other continents, so that a global assessment of climate change litigation, in different regions of the world, can be made and benefit to all interested readers.
MASSACHUSETTS v. EPA 549 U.S. 497 (2007).
© Copyright 2010 by the author, Magali Dreyfus.