Climate Change Liability

Transcription

1 Climate Change Liability Edited by Michael Faure Professor of Comparative and International Environmental Law, Maastricht University and Professor of Comparative Private Law and Economics, Erasmus University Rotterdam, The Netherlands Marjan Peeters Professor of Environmental Policy and Law, Maastricht University, The Netherlands NEW HORIZONS IN ENVIRONMENTAL AND ENERGY LAW Edward Elgar Cheltenham, UK Northampton, MA, USA

2 Contents List of contributors / ix List of abbreviations xi PART I INTRODUCTION 1 3 Michael Faure and Marjan Peelers Problem definition: reasons for this book 3 Methodology 5 Framework 8 Structure of the book 8 Contributors Word of thanks 11 PART II CROSS-CUTTING THEMES 2 Liability with and liability from the precautionary principle in climate change cases 15 Miriam Haritz Scientific uncertainty in climate change 15 From scientific to legal uncertainty in climate change liability 17 The scope of the precautionary principle as a tool to handle uncertainty 19 The precautionary principle and climate change liability 21 The added value of the precautionary principle's application to climate change liability Final considerations 32 3 High noon: prevention of climate damage as the primary goal of liability? 47 Jaap Spier

3 vi PART III Climate change liability EUROPEAN PERSPECTIVE 4 Liability of Member States and the EU in view of the international climate change framework: between solidarity and responsibility 55 Javier de Cendra de Larragdn 55 The principles of solidarity and loyal cooperation 56 The Kyoto Protocol, the EU bubble and responsibility for lack of compliance " 59 Compliance and the burden-sharing agreement for the period Conclusions on the principle of loyal cooperation in relation to burden sharing Possible extensions to the notion of burden sharing Concluding remarks 81 5 The regulatory approach of the EU in view of liability for climate change damage 90 Marjan Peeters. 90 Fossil fuel: a major source for energy production 95 EU climate legislation targeting fossil-fuel fired energy installations 99 Stipulating the responsibility of present polluters for future damage 116 Conclusion 123 Appendix: List of EU climate legislation Potential liability of European States under the ECHR for failure to take appropriate measures with a view to adaptation to climate change 134 Armelle Gouritin 134 Background: climate change, adaptation measures and human rights 135 The Court's case law on positive obligations and the environment 138 Adapting to climate change: a positive obligation? 146 Conclusion 151

4 Contents vii PART IV NATIONAL PERSPECTIVES ON CIVIL LIABILITY 7 Climate change litigation in the UK: its feasibility and prospects 165 Giedre Kaminskaite'-Salters Climate change in the UK: current and future impacts Why litigate? Climate change litigation in the UK: status quo and future developments The building blocks of a climate-based tort case Causes of action Causation Conclusion Liability for climate change-related damage in domestic courts: claims for compensation in the USA Elena Kosolapova Claims for compensation Analysis Conclusion: claims for compensation in other jurisdictions? liability for global warming in the Netherlands Civil Chris van Dijk Litigants Interest in the proceedings and defending the rights of future generations The primacy of politicians Negligence 6. Requirement of relativity 7. Causal link 8. Claims standing more chance? 9. Conclusions Will civil society take climate changers to court? A perspective from Dutch law Phor i van den Biesen Access to civil and administrative courts in the Netherlands Access to European courts Administrative litigation Civil litigation Concluding observations

5 viii Climate change liability 11 Governmental liability: an incentive for appropriate adaptation? 237 Ben Schueler 237 Examples of damage caused by adaptation policies 238 Barriers to governmental liability based on fault 239 Liability based on the right to equal treatment 246 Is the Dutch system of governmental liability an incentive for appropriate adaptation to climate change? Conclusion* PART V CONCLUSION 12 Concluding remarks 255 Michael Faure and Marjan Peelers The importance of sound science A broad approach to liability law Goals of liability Drawbacks What to claim? Hurdles (and potential solutions) Regulation versus climate change liability Causation Who is liable? Cases Effectiveness? Agenda: the way forward Index 275