Abstract
This chapter aims at identifying the epistemological role held by comparative law in relation to climate change. In fact, legal scholarship has traditionally channeled its efforts on the climate legal regimes at the international and, more recently, local level. Surprisingly, little attention has been given to a more comprehensive comparative appraisal which shall consider, among others, the political, cultural and historical elements that come into play with regard to the development of national and supra-national climate laws and policies. Drawing lessons from Mauro Bussani’s reflections on global rule-making processes and comparative tort law, the chapter will hopefully explain why and how comparative law should deploy its unmatchable power as a cognitive instrument, both in theory and in practice, to provide a deeper understanding of the legal phenomena embedded in the climate change arena.
“We came all this way to explore the moon.
and the most important thing is that we discovered the Earth.”.
William “Bill” Anders, Apollo 8 Astronaut.
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- 1.
Interestingly, we can distinguish between a wide and narrow definition of “climate”, both of which entail significant legal implications. Indeed, the former refers to the average weather, in terms of the statistical mean and variability of relevant quantities over a period of time (e.g., months to thousands of years), the quantities usually being variables such as temperature, precipitation and wind. The latter focuses on the five physical components that are responsible for climate, namely: atmosphere, hydrosphere, cryosphere, lithospehere, and their variations over time.
- 2.
The IPCC came into being as a result of a joint decision in 1987 of the World Meteorological Organization (WMO) and the United Nations Environmental Programme (UNEP) to conduct a mutually coordinated, scientific evaluation of climate change. Although stemming from two international organizations, IPCC cannot be regarded as such since neither the decision establishing it nor its constitutive element (the “Principles Governing the IPCC work”) wish to confer it legal personality. The institution’s work is based on several principles and reviewed and amended on a regular basis. The core of IPCC activity is the periodical Assessment Reports, which contain a comprehensive, objective and transparent appraisal of the scientific basis of risk of human-induced climate change, additionally bringing forward policy recommendations and response strategies. The IPCC is composed by thousands of scientists—partly nominated by the 195 member States—and divided in different working groups, all under the supervision of the IPCC Secretariat. Major decisions are taken in the annual Plenary Session at the presence of government representatives from all member countries.
- 3.
International climate change law as an evolving regime is based from its inception on multilateral treaties, namely the 1992 United Nation Framework Convention on Climate Change (UNFCCC) and its Kyoto Protocol (1997) setting out specific commitments in terms of GHG reduction across member States. As a framework convention, the UNFCCC does not address the regulation of climate change directly, but only sets a basis for further multilateral negotiations. Thus, resolutions adopted at the annual Conference of the Parties (COP) become essential, in order to shape the evolutionary process of the system. Since the failure to reach a new comprehensive agreement on COP15 negotiations in Copenhagen (2009), the following meetings in Cancun (COP16), Durban (COP17) and Lima (COP20) paved the way to the landmark 2015 COP21 Paris Agreement, which will hence substitute the setup established by the Kyoto Protocol from 2020 onwards.
- 4.
Notably, besides the long standing scientific journals addressing scientific evidence of climate change (such as inter alia Nature, Climatic Change), one might now cite almost ten legal journals expressively dealing with legal issues related to climate change: Climate Law (Brill); Climate Policy (Taylor & Francis); Carbon & Climate Law Review (Lexxion Publisher), not to mention the flourishing production of textbooks and books. Moreover, the acknowledgement of climate law as an area of expertise has led to the birth of specific academic institutions, such as: the Sabin Center for Climate Change Law (Columbia University); the Guarini Center on Environmental, Energy and Land Use Law (NYU); Strathclyde Center for Environmental Law and Governance (University of Strathclyde); the Grantham Research Institute on Climate Change and the Environment (London School of Economics), and many others. Importantly, post graduate programs and LL.M. in climate change law are now widely diffused in Europe, as well as in the U.S. and Australia, and are steadily gaining ground in Asian and South America.
- 5.
According to the Grantham Research Institute and the Sabin Center’s Climate Change Laws of the World database, to date the global stock of national laws and policies related to climate change worldwide has grown up to 1200, compared to 60 in 1997, increasing over a factor of 20 per year—with a remarkable spike between 2008 and 2013. Overall, approximately 44% are legislative acts of parliaments, whereas the remaining 56% are executive policies. The majority of such legislative acts concern the energy sector (41.24%) and low-carbon transition (25.93%), whereas many of them are simply incorporated into wider frameworks, such as economic development strategies.
- 6.
Art. 4, para. 2 of the 2015 Paris Agreement, as implemented by the decision 1/CP.21, para. 22 of the COP 21 compels all member States to submit their unilateral plans of action on climate change, the Nationally Determined Contributions (NDCs) for the period 2020-2025 not later than when they submit their instrument of ratification of the agreement. As of 2018, 174 out of 197 Parties have ratified the Agreement, and 167 of them have already submitted the NDC.
- 7.
A remarkable example can be cited here. In the wake of President Trump’s announcement of U.S. pulling off the Paris Agreement, sixteen governors swiftly reacted by giving birth to a bipartisan coalition, the United States Climate Alliance, with the common purpose of implementing policies consistent with the Paris Agreement, thereby reducing carbon pollution and promoting clear energy at the State level.
- 8.
The realm of carbon markets fully reflects the supportive efforts of some private business actors to climate governance. For instance, the International Emission Trading Association (IETA) and the Asia-Pacific Emissions Trading Forum initially emerged as lobby organizations to promote carbon markets, but they have also developed governance functions among their members and in relation to starting up other governance initiatives. Chicago Climate Exchange (CCX), although no longer operating as a proper emissions trading system, had developed significant infrastructure in terms of trading platforms. In fact, it crafted the actual dominant platform in the EU ETS, the European Climate Exchange (ECX). Moreover, after the entry into force of the Kyoto Protocol many carbon market certification schemes had arisen, such as the VCS, Social Carbon, the CCBA, Carbon Fix and the Gold Standard, which operate in parallel with the carbon offsetting programs—in particular, the Kyoto Protocol Clean Development Mechanism (CDM).
- 9.
To give just one relevant example, many regulatory instruments, as well as soft law guidance informing the operational setup of corporations and public bodies, refer expressively to ISO 14064 and 14065 standards for GHG emissions quantification and verification.
- 10.
In fact, this is the reason why Paris Agreement’s architecture holds as a benchmark for collective climate action neither quantitative obligations nor qualitative standards of emission reduction, but national medium and long-term pledges—the aforementioned NDCs. Hence reflecting the political nature of the Paris Agreement as a political, as opposed to the strictly legal, “hard” pattern of the 1997 Kyoto Protocol.
- 11.
As a result of the radical pushback in the mid 1980s against command and control regulatory techniques as a response to environmental harm, market mechanisms have now solidly taken the lead in this score as efficient means to carry out environmental regulation and profitable business opportunities. Market mechanisms are characterized by two underlying approaches: price and quantity-based. The former is generally aimed at fixing an economic overall value on environmental externalities (e.g. GHG emissions). Carbon taxes (and environmental taxes as a whole) belong to this category. Similarly, an economic value can be attributed directly to natural services provided by particular ecosystems, therefore opening up the possibility for actual payment for ecosystem (PES). An interesting example of PES is the Reducing Emissions from Deforestation and (forest) Degradation (REDD) initiative where forest owners or authorities can be paid to maintain carbon sinks and trees instead of cutting them down. The latter, such as cap-and-trade or credit trading (offsets), provide individuals, firms or countries either with tradable permits allocated at the outset by public authorities or credits by investing in emission reductions projects.
- 12.
As of 2017, more than 850 climate change cases had been filed in 24 countries (24 including the European Union), pursuing five main purposes: holding governments to their legislative and policy commitments; linking the impacts of fossil fuels extraction and consumption to climate change; establishing proximity between particular GHG emissions and adverse climate change impacts; establishing liability for failures (or insufficient efforts) to adapt to climate change.
- 13.
In Europe, 49 out of 79 climate-related lawsuits brought as of March 2017 have been filed in the U.K.; 13 in Spain; 4 in France; 3 in Germany.
- 14.
Art. 6:162 Dutch civil code states as follows:
1. A person who commits a tortious act (unlawful act) against another person that can be attributed to him, must repair the damage that this other person has suffered as a result thereof.
2. As a tortious act is regarded a violation of someone else’s right (entitlement) and an act or omission in violation of a duty imposed by law or of what according to unwritten law has to be regarded as proper social conduct, always as far as there was no justification for this behavior.
3. A tortious act can be attributed to the tortfeasor [the person committing the tortious act] if it results from his fault or from a cause for which he is accountable by virtue of law or generally accepted principles (common opinion).
- 15.
In sum, public trust cases applied to the atmosphere would be grounded on the following claims: (1) the air and atmosphere (as other natural resources) are amenable to the public trust and therefore subject to special sovereign obligations; (2) the State and its implementing agencies are public trustees; (3) both present and future generations of the public are beneficiaries of the public trust; (4) the government trustees owe a fiduciary duty of protection against “substantial impairment” of the air, atmosphere, and climate system, which amounts to an affirmative duty to restore its balance; (5) courts shall enforce these trust obligations.
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Fermeglia, M. (2020). Comparative Law and Climate Change. In: Fiorentini, F., Infantino, M. (eds) Mentoring Comparative Lawyers: Methods, Times, and Places . Ius Gentium: Comparative Perspectives on Law and Justice, vol 77. Springer, Cham. https://doi.org/10.1007/978-3-030-34754-3_13
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