Climate Change Liability: Transnational Law and Practice
Climate Change Liability: Transnational Law and Practice
Climate Change Liability: Transnational Law and Practice
Change
international action on climate change, and as the likelihood of significant impacts
grows, the focus is increasingly turning to liability for climate change damage. Actual
or potential climate change liability implicates a growing range of actors, including
Liability
governments, industry, businesses, non-governmental organizations, individuals and
legal practitioners. Climate Change Liability provides an objective, rigorous and accessible
overview of the existing law and the direction it might take in seventeen developed and
BLK
developing countries and the European Union. In some jurisdictions, the applicable law
is less developed and less the subject of current debate. In others, actions for various kinds
of climate change liability have already been brought, including high-profile cases such
as Massachusetts v. EPA in the United States. Each chapter explores the potential for and Transnational Law and Practice
Y
E d i t e d by
R ichar d Lor d QC is a London-based commercial litigator with over twenty-five
Richard Lord QC
C
Silke Goldberg
PPC
Lavan ya R ajamani is a professor at the Centre for Policy Research, New Delhi, Jutta Brunne
where she writes, teaches and advises on international environmental law, in particular
international climate change law and policy.
Cover image: a boy stands on the dead stump of a palm tree in the Sundarban Islands,
Bay of Bengal, where rising sea levels pose a threat to homes and livelihoods. Reproduced
courtesy of Robin Hammond / Panos.
Edited by
R ICH A R D LOR D
SI L K E G OL DBE RG
L AVA N YA R AJA M A N I
J U T TA BRU N N E
C A M BR I D G E U N I V E R S I T Y P R E S S
Cambridge, New York, Melbourne, Madrid, Cape Town,
Singapore, So Paulo, Delhi, Tokyo, Mexico City
Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9781107017603
A catalogue record for this publication is available from the British Library
pa rt i i National laws 65
Asia and Pacific 65
5 Australia 67
ross abbs, peter cashman and tim stephens
6 China 112
deng haifeng
7 India 139
lavanya rajamani and shibani ghosh
v
vi Contents
8 Indonesia 178
mas achmad santosa, josi khatarina
and rifqi sjarief assegaf
9 Japan 206
yukari takamura
Contributors
ro s s a bb s b. a . (hon s), l l . b. (hon s) (n e wc a s t l e), b.c . l .
(oxon ) is a Research Assistant at the Faculty of Law, University of
Sydney.
viii
List of contributors and Editorial Board members ix
dr pet e r c a sh m a n is a barrister and Professor of Law (Social Justice)
at the University of Sydney. He holds a degree in law and a diploma in
criminology from the University of Melbourne and a Master of Laws de-
gree and a Ph.D. from the University of London. He has practised law in
the United Kingdom, the United States and Australia and is the author of
numerous publications, including Class Action Law and Practice.
p rof e s s or m e i n h a r d d oe l l e , b. s c . (c h e m i s t ry), l l . b.
(da l .), l l . m . (o s g o ode h a l l), j. s . d. (da l . ), is an Associate
Professor at Dalhousie Universitys Schulich School of Law. He serves as
the Associate Director of the Marine and Environmental Law Institute and
has written books on a variety of environmental law topics, of which his
most recent are Environmental Law: Cases and Materials (2009) and The
Federal Environmental Assessment Process: a Guide and Critique (2008).
xviii
foreword xix
arguments in various jurisdictions that could be used to achieve climate
justice at a national level. Notwithstanding the climate justice opportun-
ities potentially afforded by litigation, the need for a new legally binding
agreement under the United Nations Framework Convention on Climate
Change (UNFCCC) remains vital. Only a legally binding international
framework can ensure that actions will be taken to reduce emissions and
to protect the most vulnerable from the potentially catastrophic impacts
of climate change.
AC K NOW L E D GE M E N T S
We acknowledge with gratitude the support and assistance which we, and
this book, have received from so many quarters. All those associated with
this project have given generously of their time and their wisdom. Some
deserve particular recognition.
We owe a debt of gratitude to those who first conceived the idea of a
comparative study of national laws pertaining to climate change liability,
and especially to Jaap Spier, Advocate-General in the Supreme Court of
the Netherlands and Honorary Professor of comparative insurance law
at Maastricht University. We are pleased to have Professor Spier as an
Editorial Board member, providing continuity between the first seeds of
an idea and the current book.
Whilst the book is a rigorous academic study independent from any
political influence by any organisation, we would like to thank Jasper
Teulings, General Counsel of Greenpeace International, Joss Saunders,
General Counsel of Oxfam and Niall Watson, Programmes Legal Adviser
at WWF-UK for their continued support and encouragement.
Special thanks are also due to Oxfam for funding a conference in
January 2011 which enabled authors and editors of this book to exchange
ideas and which sowed the seeds for a very fruitful cooperation between
authors across various jurisdictions.
All of the authors and Editorial Board members have toiled diligently,
and without complaint or reward, to create what we hope is a rich store
of information and learning and distil it into a book which, if not quite
pocket size, will be portable and accessible to many.
Cambridge University Press, our publishers, have been supportive and
understanding of the difficulties in finalising within a short timeframe
a book to which so many have contributed. We are grateful to them in
making possible our ambition to publish the book in time for COP 17 in
Durban.
Finally, and in a class of her own, it is impossible to overstate the
importance of the pivotal role in this book played by Pascale Bird, our
xx
Acknowledgements xxi
project manager. She has spent uncounted and uncountable hours in
keeping the project and its numerous participants on track, with unfail-
ing patience, good humour and dedication, and has engaged in a huge
variety of tasks from the almost sublime to the immensely tedious.
Without Pascale, there would have been no book.
We have endeavoured to ensure that the law and factual material stated
is correct as at 31 March 2011 except where otherwise stated in the rele-
vant chapter.
Each editor and contributing author is acting solely in their individual
private capacity. Any information presented, and any views or opinions
expressed, do not represent the views of any employing institution and
should not be ascribed to the same.
A BBR EV I AT IONS