New Article: “International Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements”

Kim, R.E. & Bosselmann, K. (2013). International Environmental Law in the Anthropocene: Towards a Purposive System of Multilateral Environmental Agreements. Transnational Environmental Law. 1-25.

Abstract: Our point of analytical departure is that the state of the global environment is deteriorating despite the accumulating body of international environmental law. By drawing on the recent Earth system science concept of interlinked planetary boundaries, this article makes a case for a goal-oriented, purposive system of multilateral environmental agreements. The notion of ‘goal’ is used here to mean a single, legally binding, superior norm – a grundnorm – that gives all international regimes and organizations a shared purpose to which their specific objectives must contribute. A bird’s eye view of the international environmental law system reveals how the absence of a unifying goal has created a condition that is conducive to environmental problem shifting rather than problem solving. We argue that a clearly agreed goal would provide the legal system with a point of reference for legal reasoning and interpretation, thereby enhancing institutional coherence across Earth’s subsystems. To this end, this article concludes by observing that the protection of the integrity of Earth’s life-support system has emerged as a common denominator among international environmental law instruments. Accordingly, we suggest that this notion is a strong candidate for the overarching goal of international environmental law.

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New Article: “Exploring Climate Change Uncertainties to Support Adaptive Management of Changing Flood-Risk”

Lawrence, J., Reisinger, A., Mullan, B., Jackson, B. (2013). Exploring Climate Change Uncertainties to Support Adaptive Management of Changing Flood-Risk. Environmental Science & Policy. 33: 133-142.

Abstract: Increasing intensity and frequency of extreme precipitation events projected as a consequence of global warming pose significant challenges for decision-making. Climate change creates a dynamic risk, but flood risk management decision-making based on single ‘best estimate’ scenarios is entrenched within decision-making frameworks and professional operating practices. This conceals uncertainties and focuses attention on enhancements to existing ‘protection’ structures, giving a false sense of security to those living within presumed ‘safe’ areas. A more nuanced, risk-based approach to flood frequency changes is needed to reflect climate change uncertainties, but this is constrained by the high cost and complexity of modelling. We present a quick and relatively low-cost methodology to explore the implications of alternative climate change scenarios for flood frequency, and apply it for illustrative purposes, to the Hutt River located in New Zealand’s lower North Island. Annual exceedance probabilities increase under all scenarios but with considerable differences between alternative emissions scenarios and climate models. We evaluated the salience of this information for planning responses with flood management and planning practitioners. We found that ‘mind-sets’ changed to consider a greater range of response options according to their lock-in potential in existing and Greenfield urban settlements. Tools to rapidly explore alternative futures can therefore support evaluation of a wider range of response options at the exploratory stages of decision-making, which helps avoid planning responses that are predicated on historical experience and a single ‘best estimate’ scenario. This encourages responses that better reflect the changing nature of the risk.

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New Article: “Securing Ocean Benefits for Society in the Face of Climate Change”

Ruckelshaus. M. et al. (2013). Securing Ocean Benefits for Society in the Face of Climate Change. Marine Policy. 40: 154-159.

Abstract: Benefits humans rely on from the ocean – marine ecosystem services – are increasingly vulnerable under future climate. This paper reviews how three valued services have, and will continue to, shift under climate change: (1) capture fisheries, (2) food from aquaculture, and (3) protection from coastal hazards such as storms and sea-level rise. Climate adaptation planning is just beginning for fisheries, aquaculture production, and risk mitigation for coastal erosion and inundation. A few examples are highlighted, showing the promise of considering multiple ecosystem services in developing approaches to adapt to sea-level rise, ocean acidification, and rising sea temperatures.

Ecosystem-based adaptation in fisheries and along coastlines and changes in aquaculture practices can improve resilience of species and habitats to future environmental challenges. Opportunities to use market incentives – such as compensation for services or nutrient trading schemes – are relatively untested in marine systems. Relocation of communities in response to rising sea levels illustrates the urgent need to manage human activities and investments in ecosystems to provide a sustainable flow of benefits in the face of future climate change.

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New Article: ‘Translating disaster resilience into spatial planning practice in South Africa: Challenges and champions’

Van Niekerk, W. (2013). Translating disaster resilience into spatial planning practice in South Africa: Challenges and champions.  Jàmbá: Journal of Disaster Risk Studies. 5 (1): 1-6.

Abstract: It is highly likely that hazards and extreme climatic events will occur more frequently in the future and will become more severe – increasing the vulnerability and risk of millions of poor urbanites in developing countries. Disaster resilience aims to reduce disaster losses by equipping cities to withstand, absorb, adapt to or recover from external shocks. This paper questions whether disaster resilience is likely to be taken up in spatial planning practices in South Africa, given its immediate developmental priorities and challenges. In South Africa, issues of development take precedence over issues of sustainability, environmental management and disaster reduction. This is illustrated by the priority given to ‘servicing’ settlements compared to the opportunities offered by ‘transforming’ spaces through post-apartheid spatial planning. The City of Durban’s quest in adapting to climate change demonstrates hypothetically that if disaster resilience were to be presented as an issue distinct from what urban planners are already doing, then planners would see it as insignificant as compared to addressing the many developmental backlogs and challenges. If, however, it is regarded as a means to secure a city’s development path whilst simultaneously addressing sustainability, then disaster resilience is more likely to be translated into spatial planning practices in South Africa.

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New Article: ‘Epistemic Institutions and Epistemic Cooperation in International Environmental Governance’

Meyer, R. (2013). Epistemic Institutions and Epistemic Cooperation in International Environmental Governance. Transnational Environmental Law. DOI: 10.1017/S2047102513000010

Abstract: Under what conditions should epistemic institutions (institutions that provide policy-relevant scientific advice) be integrated into international legal institutions – for example, the Conference of the Parties to the United Nations Framework Convention on Climate Change? Following work in law and economics on the theory of the firm, this article argues that where states will not implement environmental policies absent a collective decision to do so, greater hierarchical control of epistemic institutions by legal institutions may be necessary to ensure the credibility and availability of a usable scientific record. Hierarchy creates credibility because it allows all states necessary for cooperation in the legal institution to oversee the production of the scientific record that provides the basis for international legal rules. Hierarchy thus enhances the effectiveness of international law as a coordination tool, even at the expense of the autonomy of the scientific process. By contrast, where collective action is not necessary because states will unilaterally regulate an environmental problem once scientific uncertainty has been reduced, epistemic and legal institutions should be fragmented to ensure the unbiased production and dissemination of scientific information. In such situations, the credibility of the scientific record is demonstrated by decentralized adoption of science-based regulation.

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New Article: ‘Deceitful Tongue: Is Climate Change Denial a Crime?’

Tucker, W.C. (2012). Deceitful Tongues: Is Climate Change Denial a Crime? Ecology Law Quarterley. 39: 831-892.  

Abstract: The consequences of global warming and associated climate changes are now apparent. No longer can there be any doubt that anthropogenic (human-caused) warming of the Earth is happening, caused mainly by greenhouse gas emissions, primarily carbon dioxide, from burning fossil fuels. Climate change poses a grave threat to humankind. The world is already experiencing the consequences of global warming: more frequent and prolonged droughts, increasingly severe and more frequent storms, rising sea levels worldwide threatening coastal and vulnerable island populations, the melting of mountain glaciers and polar ice sheets, increased intensity of tropical cyclones and hurricanes, and more frequent and widespread fires. Without immediate action to curb greenhouse gas emissions, climate change can only get worse. In the period since the issue of global warming was brought to the attention of the general public in the late 1980s, both the legislative and the executive branches of the United States government have launched a number of initiatives to assess the threat and formulate policies to address it. Nevertheless, two decades later the United States government has failed to take effective measures to address climate change domestically or to assert international leadership on achieving meaningful carbon emission reductions. It is now well-documented that a shift in public opinion and failure of political will on climate change took place at the turn of the millennium, a change which can be largely attributed to a sophisticated, nationwide public relations campaign designed to conceal the dangers of burning fossil fuels from the American public by deceiving it as to the true state of climate science. Yet this deception is arguably punishable as criminal fraud under several United States statutes: first, as defrauding the public under the generic mail/wire fraud statute; and second, as defrauding the United States government under the “conspiracy to defraud the United States” statute. This Article examines whether it can be regarded as a crime based not just upon the unethical motives of its perpetrators, but on its effects: the catastrophic, global devastation which is the likely outcome of its success.

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Table of Contents Alert: Transnational Environmental Law 1 (2)

See below for some of the latest publications in Transnational Environmental Law 1 (2):

Transnational Dimensions of Climate Governance
Thijs Etty, Veerle Heyvaert, Cinnamon Carlarne, Dan Farber, Jolene Lin and Joanne Scott
No Abstract

Climate Change Law in an Era of Multi-Level Governance
Jacqueline Peel, Lee Godden and Rodney J. Keenan
Abstract: As international negotiations struggle to deliver timely, binding commitments to reduce greenhouse gas emissions to safe levels, the environmental legal community has begun to contemplate the scope for climate governance ‘beyond’ the international climate change regime. Many see merit in a more decentralized, disaggregated approach, operating across multiple governance levels. This article examines the development of climate change law in an era of multi-level governance. It analyzes several case studies of current manifestations of multi-level governance in climate change law, including the fragmented global emissions trading system, developing arrangements governing forests and land-based sinks, the growth of climate litigation establishing transnational liability principles, efforts to ensure adaptation to unavoidable climate change, and the emergence in federal systems of a decentralized approach to climate change regulation. The article concludes by considering whether the emerging multi-level system of climate governance is adequate to meet broader international goals of climate change mitigation and adaptation.

Towards a Legal Framework for Coastal Adaptation: Assessing the First Steps in Europe and Australia
Jonathan Verschuuren and Jan McDonald
Abstract: In light of the urgent need for coastal adaptation policies and the impediments to their implementation, this article examines the early experience with coastal adaptation policies in the EU (in particular the Netherlands and the UK) and Australia, with a view to identifying the important features of an effective regulatory framework for coastal adaptation. We conclude that an integrated approach to coastal adaptation law is currently needed to lay the foundations for the required long-term strategy. Such an approach would establish processes by which adaptation objectives are agreed for each part of the coast, ensure land use planning that can accommodate future change and does not expose new communities to risk, integrate coastal adaptation with biodiversity and coastal zone policy, allocate regulatory responsibility in a way that promotes subsidiarity and consistency, and ensure that funds are available for future measures.

Defining Emissions Entitlements in the Constitution of the EU Emissions Trading System
Sabina Manea
Abstract: The European Union Emissions Trading System (EU ETS) is the largest mandatory programme of its kind. The entitlements in emissions allowances (emissions entitlements) combine public and private law characteristics: allowances are tradable, commercially valuable regulatory instruments. This dual nature reveals a new interdependency between public and private law mechanisms in the context of climate change policy. This article argues that achieving the requisite level of emissions reductions is contingent on the viability of the emissions market, and that both are dependent on the definition of emissions entitlements. This view is supported by a case study which identifies the practical and serious consequences of the absence of a legal concept of emissions entitlements. The United States (US) Acid Rain Program offers useful lessons on the treatment of emissions entitlements. They can be further defined by analogy with similar rights regimes. Their nature is highly relevant to the emissions market, particularly to the commercial contracts that constitute it.

Table of Contents Alert: Transnational Environmental Law 1 (1)

See below for some of the articles that was published in the inaugural issue of  Transnational Environmental Law 1 (1)

Confronting the Challenge of Energy Governance
Neil Gunningham
Abstract: There is a compelling argument for developing a low carbon emissions trajectory to mitigate climate change and for doing so urgently. What is needed is a transformation of the energy sector and an ‘energy revolution’. Such a revolution can only be achieved through effective energy governance nationally, regionally, and globally. But frequently such governance is constrained by the tensions between energy security, climate change mitigation and energy poverty. At national level, there is a chasm between what is needed and what governments do ‘on the ground’, while regionally and globally, collective action challenges have often presented insurmountable obstacles. The article examines what forms of energy law, regulation and governance are most needed to overcome these challenges and whether answers are most likely to be found in hierarchy, markets, or networks.

Innovativeness and Paralysis in International Climate Policy
Charlotte Streck
Abstract: This article describes the challenges of using the constrained tools of international law to negotiate a sustainable framework to address climate change. It sets out to show how the particularities of the problem have led to creative and innovative solutions expanding the borders of international law. To this end, the article discusses carbon market mechanisms, the compliance regime of the Kyoto Protocol, and the emerging framework to create incentives to reduce land-based emissions in developing countries. These examples illustrate that the recognition of the role of sub-national and private entities in mitigating climate change has had significant impact on the rules of the climate regime. But the article also asserts that the un process, while recognizing the role of private actors, is still inadequately equipped to involve non-state actors in a meaningful way. The climate regime therefore challenges the traditional thinking about interstate relationships. No longer solely a matter for international environmental law, contemporary environmental governance has become a global affair, which makes the lens of transnational law a useful tool to think about these issues in practice in a more intellectually fruitful and relevant way. This article thereby provides a snapshot of the type of issues and discussion that readers of this journal can look forward to in the years to come.

The Coming Water Crisis: A Common Concern of Humankind
Edith Brown Weiss
Abstract: This essay argues that fresh water, its availability and use, should now be recognized as ‘a common concern of humankind’, much as climate change was recognized as a ‘common concern of humankind’ in the 1992 United Nations Framework Convention on Climate Change, and conservation of biodiversity was recognized as a ‘common concern of humankind’ in the 1992 Convention on Biological Diversity. This would respond to the many linkages between what happens in one area with the demand for and the supply of fresh water in other areas. It would take into account the scientific characteristics of the hydrological cycle, address the growing commodification of water in the form of transboundary water markets and virtual water transfers through food production and trade, and respect the efforts to identify a human right to water.

Science, Values and People: The Three Factors that Will Define the Next Generation of International Conservation Agreements
Alexander Gillespie
Abstract: This paper is concerned with three emerging issues that define the way in which international conservation law moves forward in the coming decades. The three issues are those related to the use of science to frame regimes; the use of philosophy to examine the values of what is trying to be achieved; and the use of politics to ensure that local communities are linked to conservation efforts. Consideration of each of these three areas is relatively recent, none of them having being at the forefront of conservation considerations of international importance in the past. In the future, this is likely to change.

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‘SA to strengthen environmental, climate change policies’

Engineering News, 25 October 2011 

South Africa, which is hosting the next round of global climate change negotiations in Durban later this year, would work to strengthen environmental and climate change policies over the next three years and would aim to secure global and private sector funding for green interventions.

In the Medium-Term Budget Policy Statement (MTBPS), the National Treasury also stated that it was considering environmental monitoring linked to appropriate fiscal instruments and capacity support interventions.

The R25-billion competitiveness support package over the next six years to boost industrial development, would also build on several broader programmes, including the country’s transition to a green economy.

Finance Minister Pravin Gordhan said the alignment of trade, investment and energy policies would support the transition, including private sector participation in the country’s renewable energy programme.

“Improving environmental management and addressing climate change resilience are key policy objectives,” the MTBPS stated.

The country increased its spend on environmental protection at an average yearly rate of 11% from R38.5-billion in 2008/9 to R52.4-billion in 2011/12.

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New Report – ‘Approaching the ‘Why, What and How’ of Low-Carbon Planning in South Africa’

Summary: This document presents the high-level findings from a conceptual exploratory study that considered the design of a Low Carbon Action Plan (LCAP) for South Africa, setting out the thinking of how to go about low-carbon economy planning and implementation. While developed specifically for the South African context, the approach explores a methodology which could be adopted in whole or in part by low-carbon economy planners throughout the developing world. As well as outlining the core elements of the LCAP, this document highlights some of the challenges and opportunities this process presents.

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