CCLR 1/2011



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Issue 1/2011

Table of Contents

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Jolene Lin and Joanne Scott
Editorial
Carbon and Climate Law Review 1/2011: pp. 1-2
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Climate change governance is an emerging, multi-faceted issue area. What is fascinating for scholars working in this area is the emergence of new sites of governance at different levels and in different forums. We find climate change mitigation and adaptation initiatives at the city, provincial, regional and international levels. Informal policy and research networks transverse the globe. Apart from the realm of “hard law”, “soft law” abounds in climate governance.

Brian J. Preston
Climate Change Litigation (Part 1)
Carbon and Climate Law Review 1/2011: pp. 3-14 [Article]
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In the absence of an international treaty to address climate change, litigation provides an alternative path to encourage mitigation of the causes or redress for the effects of climate change. This article focuses on causes of action that have been used, or could be used, to litigate issues relating to climate change. Part I explores how plaintiffs at the national level have brought private law causes of action in tort (public nuisance, negligence, civil conspiracy, misrepresentation) and under trade practices legislation. Part II, to be published in the next issue of this Journal, outlines how public law causes of action in administrative law (merits review, civil enforcement and judicial review proceedings) or constitutional law (enforcement of a constitutional right) have been used domestically and in a range of international fora including the International Court of Justice, the International Tribunal for the Law of the Sea or regional human rights courts.

Jacqueline Peel
Issues in Climate Change Litigation
Carbon and Climate Law Review 1/2011: pp. 15-24 [Article]
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Climate change is an urgent environmental problem yet many governments have struggled to develop an effective national regulatory response. Instead, environmental advocates have turned increasingly to courts for a solution, mounting ambitious climate change cases in countries such as Australia and the United States, as well as under international law. This article examines several cross-cutting issues that present challenges for potential litigants across the broad spectrum of climate change litigation. They include problems of proof, of dealing with cumulative and indirect impacts, and of establishing a significant contribution to global warming, as well as issues surrounding the respective roles of courts and legislatures in developing a regulatory response to the problem of climate change.

Joanne Scott
The Multi-Level Governance of Climate Change
Carbon and Climate Law Review 1/2011: pp. 25-33 [Article]
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This paper examines the multi-level governance of climate change with a particular focus on the European Union (EU). It examines the relationship between the EU and its Member States (the federalism dimension), particularly in relation to emissions trading, and the relationship between the EU and the rest of the world (the global dimension). The paper argues that we are witnessing a shift in the EU’s climate leadership style; a shift that is characterized by an increasing willingness of the EU to use its economic power in a bid to promote effective climate governance elsewhere. We see this in relation to different sectors including aviation, biofuels, energy-intensive products and as a result of increasing EU regulation of carbon offsets in its emissions trading scheme.

Jolene Lin
The Environmental Regulation of Biofuels: Limits of the Meta-Standard Approach
Carbon and Climate Law Review 1/2011: pp. 34-43 [Article]
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The promotion of biofuels as a fossil fuel alternative has been a significant aspect of the global quest for solutions to mitigate climate change. However, the quick-fix has proven to be problematic as food security and environmental concerns emerge. To address these concerns, the European Union (EU) Renewable Energy Directive contains sustainability criteria that biofuels must fulfill in order to be counted towards attainment of EU or national renewable energy obligations, or to be eligible for financial support. The European Commission (EC) has adopted the meta-standard approach as the compliance mechanism. The meta-standard approach relies heavily on voluntary certification schemes and is an example of regulatory out-sourcing to private actors in European clean development governance. This paper critically examines the limitations of the meta-standard approach, draws comparisons with the Clean Development Mechanism, and highlights some of the fundamental structural issues that may contribute to agents (the certification schemes) acting in rent-seeking ways to the detriment of the principal (the EC).

Richard Balme
China’s Climate Change Policy: Governing at the Core of Globalization
Carbon and Climate Law Review 1/2011: pp. 44-56 [Article]
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The issues faced by the People’s Republic of China (PRC) in formulating its climate policy do not come from a denial of the reality of climate change, nor form a reluctance to introduce new policies and regulations at the domestic level. They stem rather from general difficulties relating to the effective implementation of regulations in the Chinese political system, and primarily from the incompatibility of different objectives, in particular the achievement of greenhouse gas (GHG) emission reductions with the technology available and the growth of the Chinese economy, both in intensity and in content. One of the interesting paradoxes of this situation concerns the centrality of China’s growth model for the global economy, meaning that this country’s domestic regulation has potentially far-reaching implications for the major economies worldwide. Without further significant changes in the structure of the political economy of developed countries, China will neither want, nor be able, to bring about any rapid change in its development path. To explain this situation, this paper reviews the drivers of policy developments addressing climate change in the PRC before describing the policy instruments selected by China in the formulation of its climate change policy. The paper also considers the position of the PRC in international climate change negotiations. Finally, it examines the implementation of these policies and assesses their capacity to effectuate a low carbon transition in China.

Mark Tewdwr-Jones
Governing London and Sustainability: Power and Contestation in a World City
Carbon and Climate Law Review 1/2011: pp. 57-69 [Article]
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This paper offers a critical examination of London’s governmental and planning structures and its commitments to creating a sustainable city. Governing a world city like London has always been a difficult process. Legislative commitments to address London’s sustainable future have sometimes been undermined by different policy interpretations by different key players over different time periods. This has created a fluid and diverse structure of governance that enables short-term policy shifts but which threatens longer term strategic sustainability policy commitments. These interpretations have occurred against an ongoing and contentious political debate over powers and responsibilities between different scales of the state, and the rights to make key decisions affecting London’s future. This has resulted in a policy and governmental structure that is highly dependent on negotiation and compromise and one that employs a variety of policy tools, information and persuasion, financial incentives, and collaboration, to achieve a balanced form of governance. This flexible arrangement enables divergent public attitudes towards sustainability and climate change to be harnessed but may not deliver long term urban sustainability.

Zhao Yuhong
Responding to the Global Challenge of Climate Change – Hong Kong and “One Country Two Systems”
Carbon and Climate Law Review 1/2011: pp. 70-81 [Article]
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The historical and political context of the change of sovereignty in 1997 has determined Hong Kong’s unique response to the global challenge of climate change. As a Special Administrative Region of the People’s Republic of China under the principle of “One Country Two Systems,” Hong Kong not only has the obligation to mitigate Greenhouse Gas (GHG) emissions in response to China’s evolving climate change policies from Rio to Copenhagen, but also enjoys special privileges and potential advantages as a result of enhanced cross-border cooperation with Mainland China in areas of Clean Development Mechanism (CDM) projects, carbon trade and clean energy supply. Both the international climate change regime and national policies have created great opportunities for Hong Kong to take the lead in the transformation to low-carbon society and make a substantial contribution to achieving the national target of 40–45 percent cut in carbon intensity by 2020 compared to the 2005 level. Where there is a will there is a way. What Hong Kong needs is the political will to do the right thing.

Koh Kheng Lian and Lovleen Bhullar
Governance on Adaptation to Climate Change in the Asean Region
Carbon and Climate Law Review 1/2011: pp. 82-90 [Article]
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In recent years, climate change adaptation has emerged as an important issue in the policymaking process at the national and regional level. This paper seeks to provide an overview of the governance framework for climate change adaptation within the Association of Southeast Asian Nations (ASEAN), a sub-regional organization, and to evaluate opportunities and limitations.

Celeste M. Black
Tax Accounting for Transactions under an Emissions Trading Scheme: An Australasian Perspective
Carbon and Climate Law Review 1/2011: pp. 91-99 [Article]
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While the taxation treatment of transactions under an emissions trading scheme (ETS) has the potential to support or distort the primary object of the ETS, taxation considerations are often overlooked in the process of designing a scheme. The approach taken in this regard in Australia and New Zealand (NZ) is worth noting because tax considerations played an integral role in the design process from the outset. This article provides an overview of the basic mechanics of the ETS designed by each of the Australian and NZ governments and a detailed analysis and critical comparison of the income tax treatment of emissions liabilities and units under the two schemes.

Rowena Maguire
Opportunities for Forest Finance: Compliance and Voluntary Markets
Carbon and Climate Law Review 1/2011: pp. 100-112 [Article]
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The implementation of funded afforestation, reforestation, sustainable forest management and avoided deforestation projects in developing countries needs to be increased. Implementation of such projects has the potential to deliver ecological benefits, social benefits and a means for reducing global green house gas emissions. International and national carbon markets have led to an increase in funding opportunities available for forest carbon related projects. There are two types of markets creating carbon credits: compliance and voluntary markets. This article seeks to explore two issues – firstly why do voluntary markets have more investment in forest projects then compliance markets, and secondly, what are the barriers preventing increased investment in forest projects under compliance and voluntary markets?

David Campbell
In the Market
Carbon and Climate Law Review 1/2011: pp. 113-115 [Feature]
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1. Introduction Climate is a dead letter in Washington DC. There is no expectation that the 112th Congress will take comprehensive action on climate change. Nor can much (more) be expected from the White House. For those who anticipated that President Obama would assert American leadership on climate by reengaging in the international climate negotiations and overseeing the enactment of national climate change legislation, the situation is grim. But it may not be hopeless.

Anne-Sophie Tabau, Leonardo Massai, Kyle W. Danish and Tomás Carbonell
Current Developments in Carbon & Climate Law
Carbon and Climate Law Review 1/2011: pp. 113-123 [Feature]
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One year after the resounding shortcomings of the Copenhagen Climate Change Conference, expectations for the Cancún Climate Change Conference, which took place from 29 November to 11 December 2011, were modest. The purpose of this meeting was mainly to restore confidence in the United Nation process as well as between Parties and to agree on a “balanced package of outcomes”.

compiled by Harro van Asselt
Book Reviews and New Publications
Carbon and Climate Law Review 1/2011: pp. 124-131 [Feature]
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Environmental Justice and the Rights of Ecological Refugees by Laura Westra. London, UK: Earthscan, 2009. 302 pp., £65.00, hardback.
Environmental problems such as climate change are increasingly posing severe challenges for vulnerable communities of the Global South. As a result, millions of people are forced to flee the deteriorating living circumstances. Meanwhile, their rights are not adequately protected through international law.


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ISSN 16 19-52 72

Further information

Reading of Intimate Brussels - Living amongst Eurocrats

30 March 2011, 18.30 pm @ European Parliament

For one year, Martin Leidenfrost explored Europe’s capital and wrote fifty personal – tender, alienated, mischievous – portraits.

“Entertaining, amusing, insightful.” The Gap