This Month's News & Analysis
This Article highlights the role that national judiciaries worldwide have played in developing the field of “climate law.” It focuses on some of the key lawsuits from civil and common-law jurisdictions that may influence climate law beyond their borders, including climate mitigation and adaptation cases as well as transnational climate cases. In particular, it considers the procedural tools and interpretive principles that judges have employed to decide novel legal issues presented by climate litigation. It concludes that judges are successfully adapting their traditional role of administration of justice to the challenges posed by climate change litigation, and holding their own governments accountable. While courts have thus far been unwilling to impose civil liability on private entities, emerging science may help address some of the causation and apportionment hurdles in these cases, and additional and collateral avenues for private-sector accountability may emerge.
In a previous Comment, 46 ELR 11024, the authors examined the nexus between “willpower” and “ambition” in the context of the Paris Agreement, and identified key elements of an integrated, systematic, and strategic treatment of each through law and policy. In this Article, they explore legal mechanisms that could close the gaps in carbon reduction implementation in the United States and also meet critical conditions needed to build willpower. The incoming Administration’s focus on reform and revision calls into question some current approaches to climate change, but also may provide carbon reduction opportunities through proposed actions on infrastructure, national security, and other matters driven by immediate priorities. Pragmatic actions within U.S. states and localities, federal executive agencies, and Congress could be a good place to start to integrate such goals and charter a more systematic and strategic framework to move carbon reductions to the level required by the Paris Agreement.
Heightened awareness of climate change has inspired institutional investors to divest from fossil fuels. At the same time, investors have pushed for a new sustainable energy economy with socially and environmentally responsible investments. This fossil fuel divestment and investment in sustainable and socially responsible businesses will become a powerful driver of change, and will promote climate justice by taking a human-centered approach to climate change and safeguarding the rights of present and future generations. This Article, adapted from Chapter 5 of Climate Justice: Case Studies in Global and Regional Governance (ELI Press 2016), explains that although the actions undertaken are voluntary, they represent an important shift in thinking necessary for a sustainable future.
The rise of high-volume hydraulic fracturing has been accompanied by a suite of environmental and social concerns, including potential water and air contamination, greenhouse gas emissions, health effects, and community disruptions. Concerned over these negative environmental impacts, individuals and communities have turned to the law to restrict oil and natural gas production. This Comment proposes a novel tool, the mineral estate conservation easement, to provide landowners with the ability to restrict hydraulic fracturing and other oil and gas subsurface activities in areas of social or ecological vulnerability in perpetuity.
Aerial drones are emerging as an effective tool for environmental monitoring and enforcement because of their ability to reach areas that would be otherwise inaccessible or cost-prohibitive. However, the regulatory framework has not developed as fast as the technology, raising concerns. As EPA and other agencies consider using drones to monitor industrial sites and farmland, many landowners claim it would be an invasion of privacy. Using drones for inspections also raises legal questions about information obtained from drone flyovers and the associated evidentiary requirements. Fraught with legal uncertainty and significant public interest, the use of drones for environmental monitoring and enforcement raises important questions for many stakeholders. On August 30, 2016, ELI convened a panel to discuss drone use and regulation. Below, we present a transcript of the discussion, which has been edited for style, clarity, and space considerations.