Law Commons^™

Global Southerners In The North, Ama Francis

Sabin Center for Climate Change Law

Third World Approaches to International Law (TWAIL) scholarship contends that international law privileges nation-states in the Global North over those in the Global South. The literature primarily draws on a Westphalian conception of the North-South divide in analyzing asymmetrical issues of power in the global political economy. Given the expansion of global capitalism, however, the nation-state-based mode of analysis misses the fact that there are Global Souths in the geographic North and Global Norths in the geographic South. This Essay makes two theoretical claims.

First, it argues that racial capitalism renders expendable populations across the geographic North and South, destabilizing …

Attribution Science In Takings Litigation, Daniel J. Metzger

Sabin Center for Climate Change Law

Climate science plays a central role in climate litigation, and cases under the Takings Clause of the United States’ and many state constitutions are no exception. In the climate context, takings cases to date have involved claims that challenge the constitutionality of both adaptation and mitigation measures. For instance, real estate developers have claimed that land use and zoning regulations that seek to reduce exposure to climate change impacts constitute regulatory takings. Property owners have claimed that restrictions on the development of fossil fuel infrastructure upset their investment-backed expectations. And property owners adversely impacted by climate-related flood control measures have …

Climate Change And Innovation In Brazil: Threats And Opportunities, Gabriel Wedy, Cacia Pimentel

Sabin Center for Climate Change Law

In recent decades, Brazil has adopted a political approach focused on maintaining economic stability and consolidating inclusive social policies. However, despite repeated attempts, little progress has been made in overcoming difficulties within the country and making Brazil more competitive in the global market. Nevertheless, there seems to be an awakening and a certain consensus among scholars of Brazilian problems that the expected inclusive economic growth cycle may be achieved if Brazil invests in enhancing the bioeconomy business environment through bioenergy and innovation.

The actual crisis is fast–tracking two major transformations at the global level: the energy transition and the information …

Principles Of International Law And The Adoption Of A Market-Based Mechanism For Greenhouse Gas Emissions From Shipping, Hillary Aidun, Daniel J. Metzger, Michael B. Gerrard

Faculty Scholarship

Emissions from shipping are a significant driver of human-induced climate change. International action to date has not succeeded in setting those emissions on a sustainable trajectory. The International Maritime Organization has committed to implementing an effective, international approach to tackle international shipping’s contribution to climate change.

This paper considers international law principles, exploring whether and how these principles may provide a basis for the IMO to address those contributions. The polluter pays principle, which counsels that whoever produces pollution should cover the costs their pollution imposes on others, is a doctrine of international law that offers strong support for the …

Global Governance Of Environmental Mobility: Latin America & The Caribbean, Ama Francis

Sabin Center for Climate Change Law

Environmental events – including droughts, floods, hurricanes, sea level rise and earthquakes play a role alongside socioeconomic and political factors in triggering displacement, migration and planned relocation in Latin America and the Caribbean (LAC). LAC countries experience the strongest relationship between environmental hazards and migration in the world. From 2008 to 2019, there were more than 23 million reported incidents of internal displacement in the context of disasters linked to sudden- and slow-onset hazards linked to disasters. LAC has developed a significant normative framework in response to environmental mobility, especially relative to other regions. In practice, LAC countries use regional …

Summary: Combating Climate Change With Section 115 Of The Clean Air Act, Jonathan Cannon, Ann E. Carlson, Greg Dotson, Michael B. Gerrard, Justin Gundlach, Jayni Foley Hein, Cale Jaffe, Michael A. Livermore, Jason A. Schwartz, Daniel Selmi, Jessica A. Wentz, Philip S. Barnett, Keith J. Benes, Alexandra E. Teitz

Faculty Scholarship

The scale and scope of the climate crisis calls for comprehensive nationwide efforts to reduce greenhouse gas emissions. New legislation, passed by Congress and signed by the President, is the first and best option for climate action at the federal level. This could be a version of the Green New Deal, a carbon tax, sectoral limits, an emissions cap with compliance trading, or another approach. What matters most is that the legislation effectively cut the greenhouse gas emissions driving the world’s temperatures ever higher. Unfortunately, the prospect for federal legislation is uncertain, while strong and decisive action is needed now. …

Climate Financing Options: An Assessment For Columbia World Project – Ghana Household Energy, Ama Francis

Sabin Center for Climate Change Law

This report was prepared for Columbia World Project: Ghana Household Energy (“the Project”) in order to identify climate finance options that would provide substantial additional funding for Project implementation. The Project will advance in two major stages. Phase 1 will identify policy measures and fuel options that will effectively promote community-level adoption of clean cooking technologies. Phase 2 will then implement the intervention based on findings from Phase 1. The funding this Project seeks will cover Phase 2 operations costs and likely contribute to subsidizing the cost of fuel and hardware in order to reduce the consumer end-price of the …

After Madrid, W[H]Ither The Cop?, Susan Biniaz

Sabin Center for Climate Change Law

With Madrid behind us and Glasgow on the horizon, it is a good time for Parties and others to consider the future of the annual COP. (By “COP,” I mean the climate conference writ large, rather than the “Conference of the Parties,” the narrower technical name for the Parties to the UN Framework Convention on Climate Change.) Madrid, while a remarkably successful venue in terms of logistics, left many not only disappointed at the Parties’ failure to reach agreement and signal an increase in ambition but also confused:

• Why was there such a disconnect between the scientific imperative (as well …

Free-Movement Agreements & Climate-Induced Migration: A Caribbean Case Study, Ama Francis

Sabin Center for Climate Change Law

Climate-induced migration has become a global challenge. Climate change intensifies the frequency and severity of disasters, thereby increasing the number of people displaced by extreme weather events. Adverse climate impacts are already exacerbating patterns of human mobility, and will do so to a greater degree in the future. The Internal Displacement Monitoring Center (IDMC) reports that approximately 265 million people have been displaced by natural hazards since 2008. Over 17 million people were internally displaced by disasters in 2018 alone. While the majority of climate migrants are displaced within their home countries, many people are forced to move abroad.

The …

Threats To The Brazilian Environment And Environmental Policy, Thomas J. Trebat, Laura Nora, Inga Caldwell

Sabin Center for Climate Change Law

The Columbia Global Centers | Rio de Janeiro, in partnership with the Sabin Center for Climate Change Law at Columbia University and the Brazil-American Institute for Law and Environment at Pace University, organized a Workshop on November 13, 2019 in New York City. The Workshop was convened to discuss and raise awareness of the scope and severity of the environmental crisis in Brazil with a focus on the severe threats to the Amazon.

The consequences of the Bolsonaro government´s environmental actions are serious for Brazil and for the world. That is one of the reasons why the Columbia Global Center …

Expertise Scientifique Et Lien De Causalité Dans Le Cadre Du Contentieux Climatique: Le Point De Vue De La Doctrine Américaine, Michael Burger

Sabin Center for Climate Change Law

Au cours des dernières années, il y a eu une augmentation remarquable du nombre d’actions judiciaires visant à demander aux Gouvernements et aux acteurs privés de rendre des comptes de leur inaction face aux changements climatiques. La « science de l’attribution » du changement climatique – c’est-à-dire la capacité de détecter les changements environnementaux et de les attribuer à l’augmentation des émissions de gaz à effet de serre – joue un rôle central dans bon nombre de ces actions : elle permet en effet de fonder à la fois l’attribution d’événements extrêmes au changement climatique et d’émissions de gaz à …

Changing International Law For A Changing Climate, Daniel C. Esty, Dena P. Adler

Sabin Center for Climate Change Law

After more than two decades of inadequate international efforts to address climate change resulting from rising greenhouse gas emissions, the 2015 Paris Climate Change Agreement shifted gears. That agreement advances a “bottom-up” model of global cooperation that requires action commitments from all national governments and acknowledges the important role that cities, states, provinces, and businesses must play in delivering deep decarbonization. Given the limited control that presidents and prime ministers have over many of the policies and choices that determine their countries’ carbon footprints, the Paris Agreement missed an opportunity to formally recognize the climate change action commitments of mayors, …

The Legal Basis For Imo Climate Measures, Aoife O'Leary, Jennifer Brown

Sabin Center for Climate Change Law

This paper investigates the potential legal bases for the International Maritime Organization (IMO) to enact climate measures. It finds that the IMO has broad powers to enact almost any required measure, and quickly via a tacit amendment to the International Convention for the Prevention of Pollution from Ships (MARPOL).

Human Rights And Article 6 Of The Paris Agreement: Ensuring Adequate Protection Of Human Rights In The Sdm And Itmo Frameworks, Romany M. Webb, Jessica A. Wentz

Sabin Center for Climate Change Law

Article 6 of the Paris Agreement recognizes the right of Parties to cooperate in the implementation of their nationally determined contributions (NDCs) through both market- and non-market-based approaches. One market-based approach is outlined in Article 6.2 which provides for “the use of internationally transferred mitigation outcomes [(ITMOs)] towards” NDCs. This is widely seen as establishing a “bottom-up” approach, whereby “mitigation outcomes,” representing emission reduction credits, can be transferred internationally and then become ITMOs. It can be contrasted with other market-based approaches that are “top-down,” involving centralized programs supporting emission reduction projects. One such program is created in Article 6.4 of …

What Happened To Byrd-Hagel? Its Curious Absence From Evaluations Of The Paris Agreement, Susan Biniaz

Sabin Center for Climate Change Law

In the midst of the negotiations leading to the Kyoto Protocol in 1997, the U.S. Senate adopted the “Byrd-Hagel Resolution,” co-sponsored by Senators Robert Byrd of West Virginia and Chuck Hagel of Nebraska. Passed by a vote of 95-0, it reflected the Senate’s view that the international climate change agreement then being negotiated by the Clinton Administration was not on the right track. Specifically, it signaled dissatisfaction with an agreement that would contain legally binding greenhouse gas emissions commitments for developed countries without such commitments in the same time period for developing countries.

By its terms, the Byrd-Hagel Resolution applied …

Join The Parties: 25+ Ways To Promote Participation In Multilateral Environmental Agreements, Susan Biniaz

Sabin Center for Climate Change Law

Negotiators of multilateral environmental agreements are frequently faced with the challenge of striking the right balance between stringency of commitment and breadth of participation. A perfect agreement on paper, with strong commitments and a robust compliance mechanism, might attract too few Parties (or too few key Parties) to achieve the agreement’s environmental objective. Conversely, broad participation in a weak agreement might also fail to accomplish the agreement’s goals.

This paper focuses on the various ways in which negotiators have worked to encourage participation in multilateral environmental agreements. In some cases, they involve steps taken before and during the negotiation of …

Setting The Table For An International Environmental Agreement: A Beginner's Guide To Negotiating Mandates, Susan Biniaz

Sabin Center for Climate Change Law

You may be an experienced negotiator of international environmental agreements. Or you may be new to the field and excited to negotiate your very first one. In both cases, you know your precedents, helped craft your government’s positions, and are anxious to get started. But wait … before you negotiate the agreement, you will need to navigate the mandate.

A mandate launches the negotiation of an international environmental instrument and sets forth its terms of reference, both procedural (such as where and when it will take place) and substantive (such as what the instrument should address). It is generally issued …

L’Évolution Des Actions En Justice Climatique Aux États-Unis, De George W. Bush À Donald Trump, Michael B. Gerrard

Faculty Scholarship

Les États-Unis ont plus de procès sur le climat que tous les autres pays dumonde réunis. La nature du litige a tendance à varier selon le parti qui détient la Maison Blanche. Pendant les administrations démocrates (Barack Obama), les poursuites ont tendance à être intentées par des sociétés industrielles et des États à tendance républicaine, alléguant que le Gouvernement fédéral en fait trop pour lutter contre le changement climatique. Pendant les administrations républicaines (George W. Bush, Donald J. Trump), la plupart des poursuites sont intentées par des groupes environnementaux et des États démocrates, alléguant que le Gouvernement fédéral en fait …

Transparency And Icao's Aviation Offsetting Scheme: Two Separate Concepts?, Aoife O'Leary

Sabin Center for Climate Change Law

The International Civil Aviation Organisation (ICAO), the UN specialised body for aviation, is developing a scheme to reduce the climate impact of aviation emissions, the Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA). From 2021, participating countries will (voluntarily at first) offset any growth in CO2 aviation emissions above the level those emissions have reached in 2020. This paper does not consider the climate implications of the scheme but rather focuses on whether the governance structure under which the scheme is being developed – especially its transparency and opportunities for public participation – meets an appropriate standard, given the …

Act Locally, Reflect Globally: A Checklist Of Options For U.S. Cities And States To Engage Internationally In Climate Action, Susan Biniaz

Sabin Center for Climate Change Law

U.S. cities and states are increasingly asking how they can play a more visible and active role in international climate change efforts.

Cities and states have obvious incentives to take action to mitigate and adapt to climate change. But why engage internationally? They may seek to demonstrate leadership or gain appropriate recognition for “doing their part.” They may want to inspire others to follow suit or support them in doing so, such as through exchanging best practices. They may seek to join the global march toward low-emission and resilient societies. Or they may want to show the world that U.S. …

The Status Of Climate Change Litigation: A Global Review, Michael Burger, Justin Gundlach

Sabin Center for Climate Change Law

Over the last decade, laws codifying national and international responses to climate change have grown in number, specificity, and importance. As these laws have recognized new rights and created new duties, litigation seeking to challenge either their facial validity or their particular application has followed. So too has litigation aimed at pressing legislators and policymakers to be more ambitious and thorough in their approaches to climate change. In addition, litigation seeking to fill the gaps left by legislative and regulatory inaction has also continued. As a result, courts are adjudicating a growing number of disputes over actions – or inaction …

I Beg To Differ: Taking Account Of National Circumstances Under The Paris Agreement, The Icao Market-Based Measure, And The Montreal Protocol’S Hfc Amendment, Susan Biniaz

Sabin Center for Climate Change Law

This paper explores the different ways in which negotiators to three recent environmental instruments accounted for different national circumstances in formulating commitments and other aspects of cooperation in the instruments. The author finds that the negotiators of these instruments have significantly expanded the arsenal of differentiation tools based on considerations pertaining to logic, fairness, limited capacity, and negotiating leverage.

Climate Legislation And Litigation In Brazil, Gabriel Wedy

Sabin Center for Climate Change Law

Brazil plays a major role in the global fight against climate change, especially because of its vast forests. However, the amount of deforestation now occurring is in great dispute. Between August 2014 and July 2015, for example, deforestation in the Amazon rainforest increased by 215% according to Imazon Research Institute. Contrarily, according to the Brazil Government, the increase was only 16%.

This paper discusses the role that legislation and litigation are playing, and the roles they may and should play in the future, in combatting deforestation and other factors relevant to climate change in Brazil.

10 Questions To Ask About The Proposed “Global Pact For The Environment”, Susan Biniaz

Sabin Center for Climate Change Law

There is no doubt that more needs to be done, both nationally and internationally, to protect the environment. It is tempting, particularly during the Trump era, to welcome any concerted effort to do so. The issue is whether the proposed “Global Pact” is the right vehicle for enhancing environmental protection.

The Global Pact was launched this past June in Paris, with support from, among others, President Macron of France and former California Governor Arnold Schwarzenegger. At least in its preliminary state, the Pact reflects broad, cross-cutting principles in legally binding form. France intends to seek support at the upcoming UN …

La Victoria De Urgenda: El Inicio De La Lucha Judicial Frente Al Cambio Climatico, Teresa Parejo Navajas

Sabin Center for Climate Change Law

La Sentencia del Tribunal del Distrito de La Haya de junio de 2015, por medio de la cual se obliga al gobierno de los Países Bajos a adoptar una política de mitigación más ambiciosa, ha supuesto una noticia inesperada y valiente que, sin perjuicio de su – en algunas ocasiones – débil argumentación, supone un importantísimo avance en la lucha contra el cambio climático.

Abstract in English
The ruling of The Hague District Court of June 2015 forces the Dutch government to implement a more ambitious mitigation policy in order to comply with its duty of care. This unexpected and …

Climate Change And Human Trafficking After The Paris Climate Agreement, Michael Gerrard

Faculty Scholarship

Climate change is a major contributor to migration and displacement. Persistent drought forced as many as 1.5 million Syrian farmers to move to overcrowded cities, contributing to social turmoil and ultimately a civil war that drove hundreds of thousands of people to attempt to cross the Mediterranean into Europe. Drought also worsened refugee crises in the Sahel, the Horn of Africa and other parts of the continent. Climate change can cause displacement in multiple ways. No reliable estimates exist of the number of people who will be displaced partly or wholly by climate change, due to uncertainties concerning the rate …

Comma But Differentiated Responsibilities: Punctuation And 30 Other Ways Negotiators Have Resolved Issues In The International Climate Change Regime, Susan Biniaz

Sabin Center for Climate Change Law

International climate change negotiations have a long history of being contentious, and much has been written about the grand trade-offs that have allowed countries to reach agreement. Issues have often involved, for example, the level of ambition, differentiated treatment of Parties, and various forms of financial assistance to developing countries.

Lesser known are the smaller, largely language-based tools negotiators have used to resolve differences, sometimes finding a solution as subtle as a shift in the placement of a comma. These tools have operated in different ways. Some, such as deliberate imprecision or postponement, have “resolved” an issue by sidestepping it …

Climate Change And Sustainable Development In Brazilian Law, Gabriel Wedy

Sabin Center for Climate Change Law

This article aims to explain briefly how the National Policy for Climate Change (NPCC) in Brazil - established by Act 12.107/2009 – is structured. This Act will be critically analyzed according to what is being currently discussed on Climate Change Law, both globally and within the United States.

It will also seek to demonstrate the importance of the constitutional principle of sustainable development provided for in the Brazilian Federal Constitution in order to correct omissions and imperfections of the National Policy for Climate Change, whenever it is subject to interpretation and implementation by the Judiciary branch, the Executive branch and …

Three Major Developments In International Climate Change Law, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

The past month has seen a remarkable set of developments at the international level in controlling greenhouse gas (GHG) emissions – the entry into force of the Paris Climate Agreement, and major new agreements on controlling hydrofluorocarbon emissions and pollution from airplanes. The stunning election of Donald Trump on Tuesday casts the future of some but not all of these efforts into doubt, however.

Designing A Climate Change Displacement Coordination Facility: Key Issues For Cop 21, Jessica A. Wentz, Michael Burger

Sabin Center for Climate Change Law

There have been several proposals to include a “climate change displacement coordination facility” in the upcoming UNFCCC agreement, but there has been very little public discussion about what this facility would entail and how it would operate. This briefing note highlights some of the functions that the displacement coordination facility could fulfill, as well as some key questions for negotiators in the lead-up to COP 21 and subsequent talks. The note is not intended to be a proposal for how the facility should operate, nor do the functions highlighted below necessarily reflect what is politically or economically feasible. Rather, the …