Applying Fairness Principles in Climate Change Nuisance Litigation

The tort of public nuisance has been used in two recent climate change cases, Connecticut v. American Electric Power Co. and Comer v. Murphy Oil, USA, to single out a handful of American companies with deep pockets and hold those companies liable for global climate change. This article examines why these suits contravene judicially established procedural and substantive safeguards—including “but for” causation, proximate causation, remediability, and liability allocation—that are meant to ensure that when the judicial system holds a defendant liable, it is fundamentally fair to the defendant to do so.     

Greenhouse Gas Politics and Climate Change Public Nuisance Litigation

In late 2009 three long-awaited decisions were handed down in the main climate change public nuisance cases. In one case, the Northern District of California became the latest trial court to dismiss plaintiffs’ claims, while in the others the Second and Fifth Circuits reversed, allowing the plaintiffs' claims to proceed. The decisions all have been appealed. The ultimate outcome of the appeals could be affected by several legislative and administrative initiatives that are expected to see further development in 2010. This article reviews some of those initiatives and discusses their relevance to the nuisance litigation.     

Legal Steps Outside the Climate Convention: Litigation as a Tool to Address Climate Change

This article examines the recent academic interest in litigation as a tool to address climate change, as well as the surge of legal actions worldwide to bring the problem to the attention of judiciaries. This new interest reveals the frustration of legal scholars and activists at the slow rate at which policy makers are addressing the climate change problem. This article shows the slow build-up of academic interest in litigation, before moving on to analyse the kinds of legal causes of action that are being used in different parts of the world. Most of these cases have not been fully resolved, and it is more than likely that the judgments may not always be favourable to the plaintiffs, but at least a first step has been made to involve yet another forum for addressing the climate change problem.     

Climate Change Public Nuisance Litigation: Contextualizing AEP v. Connecticut

This article follows up on B. A. Bender, “Greenhouse Gas Politics and Climate Change Public Nuisance Litigation,” Environmental Claims Journal, 22(2): 78–90, 2010. It discusses developments in climate change public nuisance litigation since May 2010, with an emphasis on how actions taken by the U.S. Environmental Protection Agency may affect the outcome of American Elec. Power Co. Inc. et al. v. State of Connecticut et al., which was argued before the United States Supreme Court on April 19, 2011. A decision in that case is expected this summer.     

Linking Climate Litigation and Human Rights

Human activities since the beginning of the industrial age have produced emissions that are accelerating natural forces and changing the global climate. The expected impacts on sea levels, temperature, precipitation and storm intensity will stress many human communities and, in many cases, will threaten basic human rights. Climate litigation provides one tool that can be used to shape climate policy and to seek redress from climate-related injuries. This article explores the advantages and disadvantages of linking climate litigation and human rights in order to find effective strategies for protecting those most vulnerable to threats to well-being created by climate change.     

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.     

Climate Change Litigation,Obsession and Expertise: Reflecting on the Scholarly Response to Massachusetts v. EPA

Climate change litigation is an obsessive preoccupation for many legal scholars. Three different “narratives” can be identified for why scholars find such litigation important to study: litigation is a response to institutional failure, legal reasoning holds authority, and litigation is a forum for the co‐production of facts and social orders. The nature and consequences of these narratives are considered in the context of the first U.S. Supreme Court “climate change” case—Massachusetts v. EPA (2007). This analysis has implications for both how scholars understand their expertise in this area, and how they should foster it.     

Supreme Court to Hear Landmark Case on Climate Change Emissions: Judgment Day Comes in Global Warming Litigation

The Supreme Court has historically been reluctant to involve itself in environmental matters, especially those relating to the regulation of releases or emissions of harmful substances. The court has typically been content to allow the legislative branch to fashion appropriate regulations to address environmental issues and for the executive branch to enforce those regulations. The acceptance of certiorari in the Second Circuit's Connecticut v. AEP case was a surprise because it not only involves environmental regulation, but also the common law applicable to public nuisance actions seeking redress for climate change damage allegedly caused by emissions of greenhouse gases (GHGs). The AEP case is shaping up to be a blockbuster in the climate change debate in the United States, and the decision could have broad repercussions in not only future litigation involving climate change, but also GHG legislation and the insurance available to address damage due to weather-related events.     

Climate Change and Crime

Conflict has a carbon footprint. Crime is a subtype of conflict. Citizen on citizen predation by force or fraud, and responses to it, have carbon costs. The paper reviews relevant literatures and notes the absence of recognition of the nexus between crime and carbon-profligate lifestyles. The writers contend that looking at crime and disorder through a carbon costing 'lens' would profoundly influence social and criminal justice policy. The precise quantification of the carbon costs of crime is beyond the scope of this paper. The preliminary estimates contained herein suggest that the direct carbon costs of crime are substantial and the consequential costs more so, to the point where it is difficult to envisage a high crime society being a low carbon society. Recognition of this would lead to a major shift in policy favouring primary crime prevention through the design, implementation and maintenance of products and services less prone to crime. The costs of crime, both fiscal and carbon, would be a matter for regret rather than action were it not for the demonstrable success of schemes to design out crime, for example from residential environments. These are briefly discussed. The scope for further improvement in designing out crime seems considerable, and an intensive programme of research to explore avenues for advance is advocated.     

美国药品责任诉讼中药品缺陷的证明

在美国产品严格责任制度中,药品具有缺陷是药品侵权责任成立的前提条件。在涉及药品责任的诉讼中,对药品缺陷的证明是决定诉讼胜败的关键。美国第三次侵权法重述把药品缺陷分为设计缺陷、制造缺陷、使用说明或警示缺陷。其各自不同的判断标准,既能帮助原告理解抽象的缺陷概念,也为原告通过具体的证据去证明缺陷指明了方向。探讨美国药品缺陷判断与证明的法律理论以及判例经验,以期能对我国相关法律的建设与司法实践提供一些有益的参考。     

Climate Change and Global Citizenship

The international climate change regime has failed. Even the most optimistic assessment of action to limit greenhouse pollution in the coming few decades will not prevent calamitous changes in Earth's climate. Arguments for international—that is, interstate—justice that have permeated international negotiations on climate change have been insufficient in fostering robust action by states. Indeed, by diverting all responsibility to states, focusing on international justice has not addressed consumption and pollution by hundreds of millions of affluent people around the world, including many millions living within developing states that have no treaty obligations to limit nationwide pollution. Increasingly, however, it is these individuals that matter: more and more of them who are not now subject to any climate‐related legal obligations are able to afford lifestyles that lead to greenhouse gas emissions and more climate change. This is especially true given the very rapid increase in the numbers of affluent people in the developing world. Bearing this in mind, this article goes beyond the still important questions of international climate justice to explore cosmopolitan or global climate justice. Global justice demands that affluent individuals in both affluent and poor states do much more to limit their pollution of the atmosphere. By being good global citizens, capable persons can help states start the world on a path to reducing the severity of climate change.     

美国药品责任诉讼中药品缺陷的证明

在美国产品严格责任制度中,药品具有缺陷是药品侵权责任成立的前提条件。在涉及药品责任的诉讼中,对药品缺陷的证明是决定诉讼胜败的关键。“美国第三次侵权法重述”把药品缺陷分为设计缺陷、制造缺陷、使用说明或警示缺陷。其各自不同的判断标准,既能帮助原告理解抽象的缺陷概念,也为原告通过具体的证据去证明缺陷指明了方向。探讨美国药品缺陷判断与证明的法律理论以及判例经验,以期能对我国相关法律的建设与司法实践提供一些有益的参考。     

Litigation,Judicial Path-Dependence,and Legal Change

In this paper we consider the role that litigation and case selection play in the process of legal change. After identifying two necessary conditions for litigation, we examine the effect of judicial path dependence on the consolidation of liability rules and legal remedies, paying special attention to litigation with different win–loss ratios. We study the consequence of private litigation decisions on the contraction or consolidation of legal rules under various litigation and judicial environments. We also consider the relevance of the win–loss ratios, the existence and nature of positive litigation costs, and the weight of past precedents on the ongoing process of legal evolution.JEL K0, K40, K13, K41     

Climate Change Meets the Commerce Clause: Obstacles and Alternatives for State and Local Responses to Climate Change

Abstract

Climate change is a global problem resulting from our aggregate emissions. The United States has failed to take significant action on a federal level to address our country’s contributions. There are options available at the state and local levels to reduce emissions and to prepare for the effects of climate change. However, the commerce clause and the doctrine of federal supremacy may bar states and municipalities from adopting those strategies. This article discusses tactics to circumvent those restrictions, and potential changes to commerce clause jurisprudence that would give states and municipalities greater flexibility to act where Congress has not.     

Adaptation to Climate Change and the Everglades Ecosystem

Water management, development, and farming continue to degrade the structure and function of the Florida Everglades. Global climate change is expected to exacerbate these anthropogenic impacts. This article explores the historical and current adulteration of the Everglades, reviews the expected effects of climate change on the ecosystem, and recommends an amendment to the farm bill to support the implementation of adaptive management to increase climate resilience.