CCLR 3/2014



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Issue 3/2014

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Michael Mehling
Editorial
Carbon and Climate Law Review 3/2014: pp. 155-155
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As 2014 draws to a close, we can look back on a series of high-level events and publications underscoring the urgency of climate change and the need for stronger policy action. Major new research outputs, such as the latest Synthesis Report of the Intergovernmental Panel on Climate Change (IPCC), the third U.S. National Climate Assessment, and studies by the U.S. National Academy of Sciences and the U.K. Royal Society, among many others, alternated with announcements of new domestic policy efforts, such as the European Union’s climate and energy targets for 2030 and theU.S. Environmental ProtectionAgency’s proposed Clean Power Plan. A week-long series of civil society events in New York City on the occasion of the U.N. Climate Summit garnered global media headlines, as did a more recent U.S.-China Joint Announcement on Climate Change.

Nathalie Boucquey, Birgit Lode and Milan Dehnen
Passing and Implementing Domestic Climate Legislation under the 2015 Agreement
Carbon and Climate Law Review 3/2014: pp. 156-166 [Article]
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In the context of the current negotiations of the Ad Hoc Durban Platform for a new global agreement on climate change, discussions are in progress concerning the legal form of this agreement. In particular, deliberations are underway regarding norms that would be legally binding internationally, and norms that would be legally binding domestically. An international obligation to pass and to implement domestic climate legislation would combine these two dimensions. This paper sees the basis for this idea in the no harm principle of international environmental law, stemming from the Rio Declaration on Environment and Development of 12 August 1992, and incorporated into the United Nations Framework Convention on Climate Change (UNFCCC). Similar concepts exist in other areas of international law, such as human rights, humanitarian law, and diplomatic relations, reflected by the notions of due diligence and of responsibility to protect. In addition to obligations of result, the possible added value of obligations of conduct to pass and implement domestic climate legislation for mitigation, adaptation and means of implementation is analysed. Concerning mitigation in particular, it is important to understand the specific features of such obligations compared to the obligations of result contained in the Kyoto Protocol.

Yelena M. Gordeeva
The Russian Federation and the International Climate Change Regime
Carbon and Climate Law Review 3/2014: pp. 167-174 [Article]
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Although the Russian Federation (RF) is one of the key players in the global climate change politics, the country is rather discreet in binding itself with new international climate obligations. Often the country is criticized for its weak national climate change law and policy. To provide current context as regards the status of Russian climate change mitigation efforts, this article describes the RF’s climate law and policy at the domestic and international levels.

Sébastien Duyck
MRV in the 2015 Climate Agreement
Carbon and Climate Law Review 3/2014: pp. 175-187 [Article]
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Promoting Compliance Through Transparency and the Participation of NGOs

The adoption of the Cancun Agreements constitutes a remarkable shift in the promotion of state compliance within the climate change regime. Whereas the Kyoto Protocol involved robust enforcement mechanisms, the new Measurement Reporting and Verification (MRV) framework relies on transparency of mitigation actions. This justificatory approach has demonstrated its effectiveness in promoting implementation of environmental agreements whenmodalities have been developed to increase the reputational costs associated with noncompliance. The MRV process developed under the Cancun Agreements however fails to acknowledge the crucial role that civil society can play in the context of this transparency mechanism.Having reviewed the nature of compliance theories and experiences of civil society contributions to compliance processes in other multilateral processes, this article argues that a justificatory approach could effectively underpin the promotion of compliance with the 2015 climate agreement provided that procedures strengthen opportunities for a more active engagement of non-state actors in the MRV process.

Rafael Fernando Feldmann
Copacabana or Taj Mahal
Carbon and Climate Law Review 3/2014: pp. 188-197 [Article]
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A Comparison of Legal Frameworks for the Clean Development Mechanism in India and Brazil

According to the report “Benefits of the Clean Development Mechanism 2012” published by the United Nations Framework Convention on Climate Change secretariat, Brazil and India, two of the most influential developing nations, have made very different experiences under the Clean Development Mechanism (CDM), with India hosting approximately four times more operational projects than Brazil and also obtaining twice the revenue from sales of carbon allowances in the primary market. Against that backdrop, the purpose of this article is to analyze and compare the legal frameworks of these two countries and suggest an answer for the identified disparity, considering rules on investment protection, as well as the domestic legal framework for implementation of the CDM.

David Langlet
Transboundary Dimensions of CCS
Carbon and Climate Law Review 3/2014: pp. 198-207 [Article]
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EU Law Problems and Prospects

The prospects for carbon capture and storage (CCS) in the EU are currently rather bleak. Nonetheless the technology remains a potentially vital part of EU climate strategy, although one associated with considerable financial and also legal challenges. CCS operations of a transboundary nature, in particular, have not received the attention that the complexity of the subject warrants. The article discusses some of the main legal obstacles and uncertainties associated with such operations, including effects of potential transboundary migration of injected CO2, the potential for storing captured CO2 outside of the EU, and the lack of clarity as regards coordination between Member States in relation to common CCS operations.

Rahul Thyagarajan
Constructing a Negligence Case under Australian Law against Statutory Authorities in Relation to Climate Change Damages
Carbon and Climate Law Review 3/2014: pp. 208-222 [Article]
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In the absence of effective government regulation, litigation is increasingly being pursued as an avenue of redressing climate change. This article explores—from a first-principles consideration of Australian law—the viability of three hypothetical negligence actions against a public authority: (i) the approval of a development in a flood-prone area; (ii) the failure to buildmitigating infrastructure; and (iii) the approval of a project contributing to greenhouse gas emissions. The paper concludes that whilst it is likely that a climate plaintiff could successfully argue a duty and breach, causation issues associated with “downscaling” climate science offer particularly intractable hurdles to overcome. Although the thrust of this article deals with the idiosyncrasies of Australian tort law, lessons from this piece may be instructive to tort and climate lawyers fromother common law jurisdictions, and in particular, those UK and US lawyers interested in the evolution climate torts and the treatment of causation.

Anne-Sophie Tabau, Leonardo Massai, Ilan Gutherz
Current Developments in Carbon & Climate Law
Carbon and Climate Law Review 3/2014: pp. 223-228 [Feature]
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International, European Union, North America

Harro van Asselt
Book Reviews & New Publications
Carbon and Climate Law Review 3/2014: pp. 229-233
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Australian Climate Law in Global Context, by Alexander Zahar, Jacqueline Peel and Lee Godden Cambridge: Cambridge University Press 2013. 485pp., $153.00, paperback.

Emissions Trading Design: A Critical Overview, by Stefan E. Weishaar Cheltenham: Edward Elgar 2014. 249pp., $120.00, hardback.


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