Let's Talk about Climate Change: Disclosure Is Coming

In this article, I review the newly released draft ASTM International standard on climate change disclosure. Many parties, from investors to state agencies, are calling for a consistent, comprehensive approach to disclosure of material financial impacts attributed to climate change. Disclosures range from costs associated with compliance to new laws to more general risk management strategies adopted by corporations. This article summarizes some of the key features of the draft standard and encourages participation in the development process.     

The Stock Market to the Rescue? Carbon Disclosure and the Future of Securities-Related Climate Change Litigation

This article considers the role that securities litigation can play in forcing public companies to disclose climate change risks to their investors and potential shareholders. Such disclosure can prove to be a strong incentive for companies to manage their greenhouse gas emissions and climate change exposure better. Securities regulators in North America have, for the most part, resisted efforts effectively to enforce obligations by companies to disclose climate change risks. This led to a recent action by the Office of the Attorney-General in New York, which exemplifies the role that litigation can play in this area. Investors themselves may soon bring their own actions against companies over their carbon disclosure, the basis for which is already provided in securities legislation.     

Gender,disasters and climate: Case of internal displacement in Assam,India

Social vulnerabilities are exacerbated as a result of human mobilities in the face of climate-related disasters. Framing these mobilities as a response to disasters masks the underlying systemic issues but helps to explore and understand the connections between climate change, disasters, and displacement, and particularly helps to identify which internal displacement patterns emerge as either adaptive or maladaptive strategies.

Using a case study approach, this article juxtaposes Assam’s history with floods, erosion, and extreme rainfall since 2012–2013 with people’s mobility as an emerging form of adaptive capacity. It contextualises key concepts of gender justice, using them to understand gendered recovery processes following disasters. This article advances the concepts of justice and migration by looking at the role and impact various patterns of mobilities have on vulnerable groups, particularly women.

While there is an increasing body of research examining the climate change–migration nexus, what is needed is a focus on understanding internal displacement using an environmental and gender justice lens. This approach must include debate and further research on internal displacement, and strengthening policy approaches to make them both climate resilient and migrant inclusive.

     

Allocation of aid for adaptation to climate change: Do vulnerable countries receive more support?

Wealthy countries spend increasing amounts of aid to support adaptation to climate change in developing countries and have committed under the UN Framework Convention on Climate Change to prioritize adaptation aid to those “particularly vulnerable” to climate change. While research has started to track this aid, it has not yet examined its allocation across all donor and recipient countries. We thus do not know to what extent vulnerable countries indeed receive more support for adaptation. We address this research gap and ask: how does this commitment to prioritizing particularly vulnerable countries translate into actual adaptation aid allocation? To what extent do vulnerable countries receive more adaptation aid? We address these questions though a quantitative analysis of data from the Organization for Economic Cooperation and Development on bilateral adaptation aid from 2011 through 2014. In contrast to other studies, we find that vulnerability—or more precisely, vulnerability indicators—matter for adaptation aid allocation. Countries that are more exposed to climate change risks, such as extreme weather events or sea level rise, receive more adaptation aid, both on a per capita basis and as a percentage of all adaptation aid. These results indicate that collectively (even if not at the level of each individual donor) donors align their bilateral adaptation aid allocation with global promises.     

Disclosing Conflicts of Interest in Clinical Research: Views of Institutional Review Boards, Conflict of Interest Committees, and Investigators

Strategies for disclosing investigators' financial interests to potential research participants have been adopted by many research institutions. However, little is known about how decisions are made regarding disclosures of financial interests to potential research participants, including what is disclosed and the rationale for making these determinations. We sought to understand the attitudes, beliefs, and practices of institutional review board chairs, conflict of interest committee chairs, and investigators regarding disclosure of financial interests to potential research participants. Several themes emerged, including general attitudes toward conflicts of interest, circumstances in which financial interests should be disclosed, rationales and benefits of disclosure, what should be disclosed, negative effects of and barriers to disclosure, and timing and presentation of disclosure. Respondents cited several rationales for disclosure, including enabling informed decision making, promoting trust in researchers and research institutions, and reducing legal liability. There was general agreement that disclosure should happen early in the consent process. Respondents disagreed about whether to disclose the amounts of particular financial interests. Clarifying the goals of disclosure and understanding how potential research participants use the information will be critical in efforts to ensure the integrity of clinical research and to protect the rights and interests of participants.     

EU Climate Change Litigation,the Role of the European Courts,and the Importance of Legal Culture

The purpose of this article is to show it is only in light of legal culture that climate change jurisprudence in the European Union can be explained. Examining the case law concerning the EU Emissions Trading Scheme, this article demonstrates that climate change proceedings in the European Union raise questions that stand at the heart of the EU legal order; that is, they demand that the boundaries of the EU's regulatory competences are drawn. In effect, the EU courts focus on ensuring that EU climate change laws are in accord with the rule of law or, in the context of EU law, the borders of the EU's environmental regulatory powers. As such, this article shows that attention needs to be given to the interaction between climate change laws and the constitutional role of the EU judiciary. These interactions are considered here together with the contingency of EU climate change litigation on EU legal culture.     

Impact of Climate Change on Indigenous People and Adaptive Capacity of Bajo Tribe,Indonesia

Abstract

With a long history and deep connection to the Earth’s resources, indigenous peoples have an intimate understanding and ability to observe the impacts linked to climate change. Traditional ecological knowledge and tribal experience play a key role in developing future scientific solutions for adaptation to the impacts. This review explores climate-related issues for indigenous communities in the world, including loss of traditional knowledge, forests and ecosystems, food security and traditional foods, as well as water, Arctic sea ice loss, permafrost thaw and relocation. Until the 21st century, indigenous peoples were viewed as victims of the effects of climate change, rather than as agents of environmental conservation. Representatives of indigenous peoples have in fact since 2008 been actively seeking a role in contributing to combating climate change through their participation in international environmental conferences, as well as by means of activism and political engagement at local and national levels. Using examples from the Amazonian region in the east of Ecuador, home to indigenous communities such as the Huaorani, Sápara and Sarayaku Kichwa origin peoples, this article argues that indigenous peoples, particularly forest dwellers, have a dual role in combating climate change. Over the years Bajo tribe have made adaptive mechanisms to cope with climate change. In the last 10?years indigenous peoples representatives have been collectively engaged in lobbying for inclusion in intergovernmental climate change negotiations and to have decision-making power at the United Nations. This article is an attempt to review the role of indigenous people in climate change and their adaptive mechanisms.     

法证披露模型:应当向法证专家披露什么和法证专家应当披露什么?

法律上的披露问题主要集中在检控方向辩护方提供或者隐瞒了哪些证据。在本文中,我们将披露的概念扩展到更广泛的情境下,在这种情境下,披露失误可能导致误判。我们引入了一个概念模型,即“法证信息披露”,它涉及哪些信息应该披露给法证检验人员,以及法证检验人员应当披露哪些信息。本文全面概述了四类利益相关者的动态交互:法证服务、调查、法律和外部利益相关者。我们通过五个问题讨论了法证信息披露模式的有效实施,即如果要向法证检验人员或者由法证检验人员提供最好的信息,以提高法证决策质素,并尽量减少偏差,则什么时候进行披露?披露什么?如何披露?向谁披露?为什么披露?     

The mismatch between the in-country determinants of technology transfer,and the scope of technology transfer initiatives under the United Nations Framework Convention on Climate Change

Despite decades of international political emphasis, little is known about the in-country determinants of technology transfer for climate change mitigation. We draw upon the conclusions of a series of standardised, official governmental statements of technology priorities, coupled with questionnaire-based data collection, to shed light on the nature of those determinants. We find that there is a disconnect between what developing country governments perceive as the key enablers of, and barriers to, technology transfer, and what bilateral and multilateral technology transfer programmes can offer, given budgetary constraints and the logic of development aid spending. We show that the well-established notion of making climate change mitigation actions an integral part of sound development plans is especially relevant for technology transfer. We offer pointers as to how this might be done in practice, in the context of the ‘technology action plans’ developed as part of the United Nations-sponsored technology needs assessment process.     

人权法语境下的气候变化损害责任:虚幻或现实

由人类活动导致的气候变化不仅影响全球生态系统,而且对包括生命权、健康权、财产权在内的各项基本人权的享有和实现构成了严重威胁.在现行多边气候变化体制缺乏损害责任承担机制的情况下,人权法语境下的气候变化损害责任开始进入国际社会的视野.尽管环境损害的人权法救济在实践中已获得了各人权机构的广泛支持,但由于气候变化损害的跨界性和累积性特点,与之相关的人权法责任之构建仍将面临难以逾越的障碍.不过,即便气候变化损害的人权法责任在目前不具有现实可行性,气候变化与人权的挂钩对于多边气候变化体制的发展仍具有积极意义.     

Good Climate Governance: Only a Fragmented System of International Law Away?

Fragmentation is the hallmark of international environmental law—it is both the key to its success and the pathway to its unraveling. Recognizing that law is an essential component of systems of supranational climate governance, addressing gaps between international legal systems is fundamentally important to the legitimacy of international law and to on‐going attempts to use international law as a central component in efforts to address climate change. This article analyzes developments in international environmental law with a view towards suggesting how efforts to develop an international climate change legal regime—and a broader system of global climate governance—highlight the pressing need to look more closely at the linkages between climate change and other areas of international law and to begin thinking about ways to minimize gaps and maximize cooperation among international environmental institutions and between international environmental law and other spheres of international law.     

Analyzing regulatory failure: mismatches, less restrictive alternatives, and reform

Professor Breyer presents here a framework for analysis and reform of economic regulation. The framework consists of three basic elements: justifications for regulation, modes of classical regulation and the problems they entail, and "less restrictive alternatives" to regulation, including taxation and disclosure. Using contemporary regulatory programs as examples, Professor Breyer argues that many such programs are ill designed to meet their objectives, and that the problems inherent in such regulatory regimes are severe. Finally, he briefly sketches how one might, as a practical matter, go about achieving reform, citing as an example the recent change in airline regulation.     

Climate change and national laws across Commonwealth countries

This paper furthers the Commonwealth agenda on climate action by exploring the kinds of ‘practical and swift action’ that might be taken through national legal frameworks to implement the Paris Agreement. The paper reviews national laws of Commonwealth member countries as they currently apply to and intersect with climate change. The paper investigates legal measures that relate directly to implement climate change policy, including climate change legislation and regulatory instruments such as emissions trading schemes and energy efficiency measures. It also considers indirect legal measures that can provide ‘co-benefits’ in relation to climate change policy, such as waste legislation and air quality measures. The paper presents examples of these different kinds of climate intersections in different Commonwealth legal systems, highlighting examples of what has worked well and what has not worked well to date, within different legal, economic and political cultures, and in different geographies and climates.     

Border carbon adjustments, WTO-law and the principle of common but differentiated responsibilities

This paper considers unilateral border measures, as contemplated by a number of developed states in conjunction with domestic emissions reduction schemes, as they relate to international trade and international environmental law. Specifically, I argue that to the extent that WTO-compliance requires strict adherence to the principle of nondiscrimination, as embodied in the national treatment and most-favored nation provisions in the General Agreement on Trade and Tariffs, there is the potential for conflict with the principle of common but differentiated responsibilities (CBDR), both as a free-standing principle of customary international law and as set out in various multilateral environmental agreements and, in particular in the climate change context, the United Nations Framework Convention on Climate Change and the Kyoto Protocol. This is insofar as the unilateral imposition of BCAs by developed countries shifts costs of compliance with environmental legislation in developed economies onto the developing world. Such allocation may conflict with the principle of CBDR, which recognizes the unequal contribution to environmental degradation of developed countries as well as their enhanced ability to address the challenges presented by such degradation and, as a consequence, requires that they undertake more onerous obligations with respect to climate change mitigation. The paper concludes with a discussion of the extent to which this conflict is illustrative of a deeper tension between efficiency and equity considerations inherent in the intersection of international economic law and international environmental law.     

Natural Resource Damages for Climate Change—An Idea Whose Time Is Not Yet Come,Part I: NRD Claims Are Not Currently Viable under CERCLA

As the effects of climate change are felt, affected parties will seek redress in the legal system. Numerous suits have already been filed and this may only be the beginning of a trend. One type of suit that has not yet been filed is the natural resource damage (NRD) claim under CERCLA. While it is unlikely that climate change-based NRD claims could succeed under current law, it may only be a matter of time before they are brought. With the present legal landscape in mind, this article examines statutory requirements under CERCLA to bring a climate change related NRD claim.     

气候变化损害的国家责任:虚幻或现实

人类活动导致的气候变化是当前全球生态系统和人类生存所面临的最大威胁之一。受历史积累因素的影响,无论各国如何控制、削减温室气体排放,气候变化造成的损害仍不可避免,而气候变化损害的国家责任也日益成为国际社会无法回避的现实问题。作为一种特殊的跨界损害,气候变化损害无论在国际不法行为的认定还是因果关系的确定方面,都对现行国家责任制度提出了挑战。由于诸多障碍的存在,追究气候变化损害的国家责任在目前尚不具备充分的现实可行性。不过,来自国家责任的潜在压力至少有助于敦促各国积极改善温室气体排放政策,并就气候变化损害的救济尽快制定切实有效的全球性解决方案。     

‘Multicolored’ green criminology and climate change’s achromatopsia

While green criminology may be an effective name or label for the sub-field or perspective within criminology that considers a wide range of environmental issues, it is, in reality, a ‘multicolored green’ – a criminology that engages a spectrum of issues, that reflects the interests of some racial groups more than others, that reveals and analyzes environmental harms which disproportionately impact some racial groups more than others, and that can be approached from a number of vantage points or that can be viewed with variously tinted lenses. This article begins with an overview of climate change, including a discussion of its anticipated impacts and indicators of its already-being-felt effects. It then offers some general comments on the disproportionate impact of environmental threats and harms before turning to a discussion of the present and anticipated distributional impacts of climate change. Here, this article argues that climate change is, in effect, achromatopsic – it is color-blind, in that it affects us all regardless of skin color – but that those impacts will be distributed unevenly/unequally and that various groups are and will continue to be in different positions to adapt to climate change. This article concludes by suggesting that while the environmental harms caused by climate change are real – and the risks and threats they pose tangible and serious – climate change presents an exciting challenge for our creative potential as humans. In the process of reducing our consumption of fossil fuels and stabilizing (or, better yet, reducing) our greenhouse gas emissions, we might better assist those geopolitical regions most at risk (i.e. poor, developing countries) to become more resilient – an approach that is necessary for both the physical health of the planet and the prospects for social justice.     

No (,) More Bolam Please: Montgomery v Lanarkshire Health Board

Montgomery v Lanarkshire Health Board concerned a negligent non‐disclose of certain risks involved in natural birth. The Supreme Court departed from Sidaway v Bethlem Royal Hospital, which formerly governed negligent risk disclosure. A new test was adopted: risks that are material must be disclosed, the materiality of a risk to be decided by reference to a reasonable person in the patient's position, or where the medical professional should be reasonably aware a particular patient is likely to attach significance to that risk. The Court emphasised risk disclosure practices must focus on what the patient wants to know. Yet the Court's portrayal of this change as a development of Sidaway is questionable. The decision is problematic in its engagement with precedent, the new test's future implications and statements regarding therapeutic privilege. Despite rejecting Bolam v Friern Hospital Management Committee's relevance to risk disclosure, this case is likely to remain relevant.     

Equity, international trade and climate policy

The literature of welfare-maximising greenhouse gas emission reduction strategies pays remarkably little attention to equity. This paper introduces various ways to consider efficiency and equity simultaneously. Lower (higher) discount rates lead to higher (lower) emission reduction. Higher (lower) inequity aversion leads to higher (lower) emission abatement, unless one also considers the negative effects of OECD emission reduction on the exports of developing countries; in that case, the effect of inequity aversion is ambiguous. In the absence of international co-operation, higher (lower) risk aversion leads to lower (higher) emission abatement. With international co-operation, the effect of risk aversion is ambiguous because the higher risk aversion gives more weight to poorer regions and poorer generations. We analyse four ways to introduce compassion in a non-cooperative setting. If observed development aid is a guide, international altruism is small and has little impact on optimal emission control. If countries act as if they 'feel' but not 'physically experience' the climate impact of the most vulnerable country, optimal emission reduction increases, but not substantially so. However, if countries actually have to pay for the damage done, they would prefer to reduce their emissions to much lower levels. Finally, if countries pay as much for emission reduction as other countries suffer from climate change, (that is, if climate policy restores the income distribution to what it would have been without climate change), emissions are rapidly cut to very low levels.