User:W.stanovsky/climate

Climate change law is an area of law evolving rapidly at all levels, from local to international, as well as through various private sector and voluntary efforts. It deals with climate change and its causes and effects. It consists of both new law developed expressly to deal with climate change and adaptations of existing law to this new purpose. Climate change law increasingly implicates areas of law beyond traditional environmental law, including energy, land use, water, insurance, property, torts, corporate and securities (including environmental, social, and corporate governance, or "ESG"), and international. According to the authors of a 2021 textbook on climate change law, "nearly all legal subjects intersect in some significant manner with climate change." Thus, whether or not climate change is formally considered "a distinct area of law", the law related to climate change is broad, growing, and crucial to the development of human responses to climate change.

Despite the rapid evolution and broad implications of climate change law, legal and policy outcomes as of 2021 fall far short of the levels of climate change mitigation deemed necessary by the scientific and international community to respond to climate change. These shortcomings highlight the extraordinary difficulties of enacting and enforcing effective responses to a problem as broad and complex as climate change, which Richard Lazarus famously characterized in 2009 as a "super wicked" policy problem.

Places to look for relevant material (in addition to those linked in the template at right)

• Environmental economics and articles linked in sidebar there.
• Category:Climate change
• Category:Climate change law
• Index of climate change articles
• Politics of climate change
• History of climate change policy and politics
• List of environmental laws by country
• List of international environmental agreements

• A Google Books search that returned promising results
• Coplan et al. Climate Change Law: An Introduction (2021)

Navbox for related articles from environmental law

Wikipedia tools

• Wikipedia:IPCC citation
• Wikipedia:WikiProject_Climate_change/Style_guide

Overview by level of legal system

Climate change law is being developed "at every level and branch of government" (as well as through private efforts, discussed below under user:W.stanovsky/climate#Voluntary contractual agreements and requirements.

International

See also: International law

Climate change presents an especially important and difficult challenge in international law because the global nature of the problem means that no one nation or small group of nations can solve it alone. International law addresses climate change at multiple scopes, from the worldwide multilateral efforts under the United Nations Framework Convention on Climate Change to regional efforts like those of the European Union and even bilateral agreements between individual nations.

Worldwide / United Nations

Main articles: United Nations Framework Convention on Climate Change and Paris Agreement

The central framework for broad, multilateral international climate change law is the United Nations Framework Convention on Climate Change (UNFCCC), which was formed at the 1992 United Nations Conference on Environment and Development (UNCED; commonly known as the Earth Summit or Rio Summit). The UNFCCC came into force in 1994 and had 198 parties as of 2022. The ultimate goal of the UNFCCC is "stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system." The convention recognizes that, in service of that goal, developed and developing countries have "common but differentiated responsibilities and respective capabilities."

The UNFCCC is implemented through annual sessions of the Conference of the Parties. Along with the UNFCCC itself, the core implementing agreements are the the Kyoto Protocol (1997) and the Paris Agreement (2015). The central dispute in ongoing negotiations is how countries' obligations should reflect national differences, such as current and historical emissions levels, wealth, vulnerability to climate impacts. Even though the special responsibility of high-emitting and developed countries has always been recognized in concept, agreement on the details of setting expectations for each country has remained extremely difficult.

The Kyoto Protocol was adopted at the COP in 1997, but did not enter into force until 2005 and ultimately became a dead end because it imposed no emission targets on developing countries. Among signatory nations, the protocol imposed binding emission reduction obligations only on developed countries listed in Annex I of the agreement who ratified the agreement. The protocol also established a cap-and-trade regime allowing parties with reduction obligations to meet their targets through several "flexibility mechanisms" rather than by directly reducing emissions internally. And even as the rigor of binding obligations strained the agreement, the Kyoto Protocol (and international climate efforts overall) still lacked an agreed overall temperature goal until one was adopted in 2010, seeking to limit global temperature increases to 2°C above pre-industrial levels. In the end, the U.S. never ratified the Kyoto Protocol because of the lack of targets for developing countries; Canada withdrew; and a number of Annex I countries refused to submit emissions targets for the second compliance period that began in 2013. The second compliance period ended in 2020, leaving the Kyoto Protocol's impact highly debatable.

As of 2021, the Paris Agreement is the primary vehicle for international, multilateral climate cooperation. Unlike the Kyoto Protocol, it lacks top-down emission limits. Instead, signatory nations specify their own mitigation goals, called nationally determined contributions ("NDCs") through a bottom-up process. The mandatory, binding elements of the agreement are mainly procedural and aimed at convincing countries to set responsible goals in line with global emissions and temperature goals. The Paris Agreement also increased the ambition of the agreed temperature goals, seeking to limit increases to "well below" 2°C, and "pursuing efforts" to stay below a 1.5°C increase. Every five years, parties must submit new NDCs that "represent a progression beyond the Party's then current [NDC] and reflect its highest possible ambition." Over time, this procedural requirement to submit increasingly ambitious NDCs could evolve into, in effect, a substantive mitigation requirement.

Though the United States ratified the UNFCCC, it is the only nation out of 193 signatories that never ratified the Kyoto Protocol.

In addition to the more general efforts under the UNFCCC, 137 nations have agreed under the 2016 Kigali Amendment to cooperate in phasing out hydrofluorocarbons, a powerful class of greenhouse gases that came into use as replacements for ozone depleting substances phased out under the Montreal Protocol.

European Union

See also: European Climate Change Programme and European Union Emissions Trading System

The European Union has been arguably the steadiest and strongest proponent of legal frameworks to address climate change internationally, both at the level of binding requirements applicable to EU member states and also in pushing for broader action globally, especially through multilateral agreements.

EU legislation is ruled in Article 249 Treaty for the Functioning of the European Union (TFEU). Climate change is a common topic of EU legislation.

• Europa: Environmental rules of the European Union
• Europa: Summaries of Legislation - Environment

Borrowed from Environmental law: International environmental law

See also: List of international environmental agreements

Further information: Environmental protocol

Global and regional environmental issues are increasingly the subject of international law. Debates over environmental concerns implicate core principles of international law and have been the subject of numerous international agreements and declarations.

Customary international law is an important source of international environmental law. These are the norms and rules that countries follow as a matter of custom and they are so prevalent that they bind all states in the world. When a principle becomes customary law is not clear cut and many arguments are put forward by states not wishing to be bound. Examples of customary international law relevant to the environment include the duty to warn other states promptly about icons of an environmental nature and environmental damages to which another state or states may be exposed, and Principle 21 of the Stockholm Declaration ('good neighbourliness' or sic utere).

Given that customary international law is not static but ever evolving and the continued increase of air pollution (carbon dioxide) causing climate changes, has led to discussions on whether basic customary principles of international law, such as the jus cogens (peremptory norms) and erga omnes principles could be applicable for enforcing international environmental law.

Several legally binding international agreements address climate change. These are generally multilateral (or sometimes bilateral) treaties (a.k.a. convention, agreement, protocol, etc.) (E.G. CHINA-U.S. BILATERAL AGREEMENT UNDER OBAMA?). Protocols, subsidiary agreements built from a primary treaty, are an aspect of international law that is especially useful in the environmental field, where they may be used to regularly incorporate recent scientific knowledge. They also permit countries to reach an agreement on a framework that would be contentious if every detail were to be agreed upon in advance. The most widely known protocol in international environmental law is the Kyoto Protocol, which followed from the United Nations Framework Convention on Climate Change.

• 1983's World Commission on Environment and Development,
• 1992's United Nations Conference on Environment and Development, and
• 2002's World Summit on Sustainable Development have been particularly important.

State / provincial and sub-national

See also: State government

In countries constituted as federations, states (or similar subdivisions such as provinces) are often important in climate change law. For example, they can be important in climate change-related regulation through their inherent authority to govern within their borders, particularly where the politics of climate change have slowed action by the federal government, and also in implementing federal statutes. States can also be important as innovators in the law, acting as small-scale laboratories of democracy to test legal innovations that may later be adopted by other states or countries.

In the United States, the decade from 2009 to 2019 developed steadily at the subnational level, despite the uneven development of climate change law and policy at the federal level.

By 2006, every U.S. state had addressed climate change in some way.

add description of Canada federalism, with national backstop pricing but provincial options -- develop from and link to Carbon pricing in Canada

Address sub-national multi-state initiatives, like WCI and RGGI

Address particular role in adaptation, per GreenCh4

Local

See also: Local government

Local governments play a particularly important role in setting code requirements for building energy use and land use. In turn, land use regulation is crucial to transportation patterns, so local governments are also very important in this aspect of reducing transportation fuel consumption.

In 2019, New York City passed (and later amended) Local Law 97, which establishes GHG emission limits for large buildings, based on maximum intensity of emissions per square foot. The bill furthers the city's goal of reducing GHG emissions from covered buildings by 40% by 2030 and citywide emissions 80% by 2050. By contrast, action at higher levels of government may limit the extent of local government climate action, for example, in furtherance of regulatory uniformity or political compromise.. For example, Washington State's far-reaching 2021 Climate Commitment Act includes a provision barring local governments from imposing their own charges or taxes on GHG emissions.

Laws developed specifically to address climate change

Mitigation

See also: Climate change mitigation

According to the IPCC, climate change mitigation is "human intervention to reduce emissions or enhance the sinks of greenhouse gases" and mitigation measures in climate policy are "technologies, processes[,] or practices that contribute to mitigation, for example, renewable energy technologies, waste minimisation processes, and public transport commuting practices." Legal mechanisms for climate change mitigation are critical because the trajectory of future GHG emissions is the principal variable driving the degree of change in future temperature conditions. Yet the law and policy of mitigation is "overwhelming in its breadth, the diversity of its origins, and the complexity of its content," as well as the levels and types of governments that develop and enforce it and the sources of law themselves.

The internationally accepted goal for global climate change mitigation as of 2021 is the Paris Agreement's aim to "[h]old[] the increase in the global average temperature to well below 2°C above pre-industrial levels and pursu[e] efforts to limit the temperature increase to 1.5°C above pre-industrial levels." However, there is no overall enforcement mechanism to reach those goals, and each individual jurisdiction or voluntary program that undertakes mitigation may have its own goal with little or no relation to the Paris Agreement or other global outcomes—or may have no specific goal at all.

Mitigation targets for individual entities or jurisdictions may be determined by regulatory requirements or may be calculated with the intent of aligning with climate policy goals, as with targets set under the Science Based Targets initiative for companies voluntarily seeking to reducing their emissions to levels consistent with the Paris Agreement global temperature goals. -- cite to SBTi documentation, but also note that regulatory goals are not inconsistent with being determined in reference to a global target like Paris. This section currently presents a false dichotomy.

A country or other entity's relative responsibility may be conceived of and accounted for in a number of ways:

• Historical or cumulative emissions
• Current rate of emissions
• Rate of emissions per capita or per unit of economic output
• Production-based accounting (based on the physical location of emissions, including goods for export)
• Consumption-based accounting (based on where produced goods are consumed)

These various views contribute to long-running dispute over how the burden of mitigation climate change (and the resources required) should be allocated. Internationally, the Global North countries have generally higher emissions (especially per capita), lower climate risk, and greater wealth and capacity for adaptation than countries in the Global South, leading to unequal burdens and responsibility for climate change.

The US, China and Russia have cumulatively contributed the greatest amounts of CO₂ since 1850.

Policy responses to reduce emissions take a vast number of forms. In the context of U.S. federal, state, and local law and private governance, Michael Gerrard and John Dernbach edited a 2019 volume on Legal Pathways to Deep Decarbonization in the United States, including 1,500 policy recommendations to reduce emissions, paired with a website of over 2,000 model and actual laws to implement those regulations. They group those diverse measures into six policy "pillars":

• Electricity decarbonization
• Energy efficiency
• Electrification
• Fuel decarbonization
• Carbon capture and removal
• Non-CO₂ pollutants

Potentially spanning many industries with one policy, carbon pricing, primarily through variations on carbon markets and carbon taxes, is a popular method of attempting to reduce greenhouse gas emissions while minimizing the economic impact of doing so. OVERVIEW OF THE THEORY. Then find updated McKinsey global abatement cost curve (see to illustrate the variable cost issue.

As a a sub-area of climate change law, carbon pricing schemes break down broadly into two categories. "Regulatory" or "compliance" markets are those in which a group of regulated entities (often corporations with high GHG emissions) must participate in the market in order to comply with laws or regulations that create the market and govern regulated entities' participation. On the other hand, voluntary markets arise as a matter of contract law among one or more willing participants.

Caveats:

• Compliance markets often have voluntary participants.
• Voluntary markets are often subject to regulation due to the nature of the contracts involved, independent of the relationship to climate change.
• Even technically unregulated aspects of voluntary markets are often subject to "regulation-like" private regimes, many of them widely accepted, which the parties voluntarily make applicable to their transactions.

Command and control regulation

Mandatory emissions controls—command and control regulation applied to environmental emissions—are the most direct type of pollution control, and are simple in concept though implementation becomes complex. Sources of pollution are simply identified and subjected to limits on the volume of pollutants they can emit.

Command and control approaches tend to focus on individual industries, control technologies, or emissions sources. Thus, traditional approaches like those in the United States, as applied to GHGs, would not lend themselves to achieving particular levels of economy-wide emissions reduction.

Stationary sources

• Electric generation - Fuel combustion in power plants, especially fluidized bed combustion of coal, is a leading source of nitrous oxide, a potent GHG.. Renewables and nuclear - Gerrard (2d ed.) ch. 14
• Industrial - Nitric acid production is a leading source of nitrous oxide, a potent GHG.

• Other utility, especially natural gas transportation and distribution

(need to look at WP:PIC)

Demand-side approaches

• Energy efficiency in buildings. Gerrard (2d ed.) ch. 13. Many studies show that efficiency is one of the most economically efficient ways to reduce GHG emissions, often producing net cost savings over their lifetime. But they are are frequently underfunded by government and difficult to finance privately, in part because they are widely dispersed, generate savings instead of revenues, and can take years to pay for themselves.

As of 2013, the largest source of methane emissions in the U.S. was natural gas systems, mainly through leakage in the production and transportation processes.

• Fossil fuel extraction -- distinct from mining, or combine (especially as to coal)?
• Mining -- is this better addressed under the "Natural Resources" section?

Techniques CCS - Gerrard (2d ed.) ch. 17

Mobile sources (transportation)

CO₂, AND POSSIBLY METHANE / VOCS IF RELEVANT?

Gerrard (2d ed.), ch. 16 - Alternative vehicles and fuels

California and WA LCFS

In addition, fuel combustion by motor vehicles is a leading source of nitrous oxide, a potent GHG.

Mitigation approaches also include reducing fuel consumption by reducing vehicle use, for example, through land use planning.

Agriculture

See also: Greenhouse gas emissions from agriculture

In the United States, enteric fermentation from cattle and other animals is the number one source of methane emissions as of 2020, ahead of natural gas systems. Manure management is also a significant source, and may be addressed to some extent through waste management laws like the Resource Conservation and Recovery Act. Agricultural soil management is also leading sources of nitrous oxide, another potent GHG.

Other GHGs

The main GHGs other than carbon dioxide, methane, and nitrous oxide are hydrofluorocarbons, perfluorocarbons, and other high-global warming potential gases. They are used in—and emitted from—a very diverse range of sources, products, and equipment, of which the most significant is replacement of non-GHG ozone-depleting substances with chemicals that are GHGs.

Carbon emission trading

Main article: Carbon emission trading

Emissions trading is a market-based approach to controlling pollution by providing economic incentives for reducing the emissions of pollutants. The concept is also known as a cap and trade or emissions trading scheme. The most successful example is the U.S. EPA's Acid Rain Program, established by the 1990 amendments to the Clean Air Act. Leading examples applying this policy approach to climate change include the European Union Emissions Trading Scheme (EU-ETS), the Regional Greenhouse Gas Initiative (RGGI) covering power plants in the northeast U.S.,, and California's statewide cap and trade program launched in 2012.

In an emissions trading scheme, a central authority or governmental body sells (often by auction) or distributes a limited number (a "cap") of permits that allow a discharge of a specific quantity of a specific pollutant over a set time period. Polluters are required to hold permits in amount equal to their emissions. Polluters that want to increase their emissions must buy permits from others willing to sell them.

A cap and trade system's success in achieving its environmental protection goals depends on the fungibility of the pollutant involved, so that it makes no difference where the pollution is emitted, only the total amount across all sources. The system itself then needs mechanisms for distributing the permits or allowances to polluters, a market for trading them, and (like command-and-control approaches) a system for monitoring and enforcement.

The key advantage of an emission trading system is certainty in the total level of pollutants emitted: the cap (i.e., the total number of pollution allowances) is set at a level consistent with the emission reduction goals of the implementing nation or region, and the price is allowed to float as needed to incentivize reductions to that level across the covered economy. However, such systems face criticism from both sides of the political spectrum. For example, conservatives may worry that tight supply as the cap declines will lead to high prices that in turn drag down the overall economy. Progressives fear that the cost of pollution may drive higher prices for goods and services that fall disproportionately on those with the least resources to absorb or avoid them. They also worry that the trading of allowances may allow "hot spots" of co-pollutant emissions (which are not fungible) at levels that are harmful to environmental justice communities.

Carbon taxes

Main article: Carbon tax

Carbon taxes are another major market-based approach to reducing emissions. Like an emissions trading system, a carbon tax aims to set incentives so that emission reductions will come from polluters with the lowest cost of abatement, achieving pollution reductions with maximum economic efficiency.. The key difference is that a carbon tax directly influences the price of emissions, whereas emissions trading limits emission quantities, with price effects dependent on the market's response to the limit.

Subsidies for emissions reductions

Subsidies are another price-focused mechanism for reducing emissions, and can have results very similar to a carbon tax: paying a company a price per ton not to emit sets the same incentive as charging a tax of the same amount per ton when it does emit.

Adaptation

See also: Climate change adaptation

Replanting of mangrove forest in Sulawesi, Indonesia for protection from climate change.

The IPCC defines climate change adaptation in human systems as "the process of adjustment to actual or expected climate and its effects in order to moderate harm or take advantage of beneficial opportunities." In natural systems, it is "the process of adjustment to actual climate its effects," potentially facilitated by human intervention. Law and policy around climate adaptation will become increasingly important because humanity faces significant and increasing climate change impacts even if current emissions reduction targets are strengthened enough to achieve the international goal of limiting warming to 1.5°C.

Though future human emissions are the principal variable determining the future temperature conditions resulting from climate change, adaptation is important because climate scenarios reflecting different levels of GHG emissions do not diverge widely for some 25 years. That means that most warming in the near term is "baked in" as a result of the climate system's slow response to past emissions, making the impacts of climate change largely unavoidable during the coming decades.

Climate legal scholars J. B. Ruhl and Robin Kundis Craig have argued that summarize argument about need for adaptation planning to look at 4c, and review article in generally more closely.

Existing regulatory law applied to climate change

Many areas of existing regulatory law, including but not limited to environmental laws, are relevant to climate change law. Often, existing regulatory regimes provide tools that can be applied to climate change even though not developed for such purposes. Thus, the Clean Air Act has been the main tool for regulation of GHGs in the United States even though its enactment in 1970 was focused on criteria pollutants, not GHGs. Non-governmental actors have likewise used sophisticated application of various laws to achieve climate-focused outcomes, such as the Sierra Club's Beyond Coal campaign. Application of pre-existing or non-climate-specific law to climate change may generate claims of regulatory overreach and accusations that it is inappropriate to use these regulatory tools toward ends that were not specifically intended. EXAMPLE: West Virginia v. EPA.

However, as climate change law develops, pre-existing regulatory regimes are increasingly modified for the express purpose of addressing climate change. For example, environmental law and energy law have traditionally existed as quite separate areas of practice and regulation, but are "increasingly using an integrated set of regulatory approaches" as attention to climate change increases. As time goes on, some legal experts believe that climikmate-specific legislation is inevitable eventually even jurisdictions (like the United States, as of 2021) that lack comprehensive GHG-reduction legislation.

Environmental

Environmental impact assessment

See also: Environmental impact assessment

• Gerrard et al. (2d ed.) ch. 5, p. 153
  • NEPA and information forcing
  • CEQA example of "little NEPAs" with a substantive action-forcing component

Transcluded from main article:

This paragraph is an excerpt from Environmental impact assessment.[edit]

Environmental impact assessment (EIA) is the assessment of the environmental consequences of a plan, policy, program, or actual projects prior to the decision to move forward with the proposed action. In this context, the term "environmental impact assessment" is usually used when applied to actual projects by individuals or companies and the term "strategic environmental assessment" (SEA) applies to policies, plans and programmes most often proposed by organs of state. It is a tool of environmental management forming a part of project approval and decision-making. Environmental assessments may be governed by rules of administrative procedure regarding public participation and documentation of decision making, and may be subject to judicial review.

Air quality

Industrial air pollution now regulated by air quality law

See also: Air quality law

Traditional air quality laws can sometimes be applied to climate change by treating anthropogenic greenhouse gases (GHGs) as air pollutants and regulating their emissions. For example, without comprehensive climate-specific legislation from Congress, U.S. federal climate action has largely proceeded through administrative activity and litigation under the decades-old Clean Air Act (United States), which authorizes the Environmental Protection Agency to regulate "air pollutants" through various mechanisms.

• Mass v. EPA and WV v. EPA as examples of the tension in these approaches
• IRA22 as example of how old laws can be tweaked to strengthen their climate focus

Transcluded from main article:

This paragraph is an excerpt from Air quality law.[edit]

Air quality laws govern the emission of air pollutants into the atmosphere. A specialized subset of air quality laws regulate the quality of air inside buildings. Air quality laws are often designed specifically to protect human health by limiting or eliminating airborne pollutant concentrations. Other initiatives are designed to address broader ecological problems, such as limitations on chemicals that affect the ozone layer, and emissions trading programs to address acid rain or climate change. Regulatory efforts include identifying and categorising air pollutants, setting limits on acceptable emissions levels, and dictating necessary or appropriate mitigation technologies.

Water quality

See also: Water quality law

Traditional water quality laws (such as the Clean Water Act in the United States) may empower regulators to impose requirements that would reduce GHG emissions as well as protect water quality. Such frameworks may also provide a partial response to climate impacts. For example, environmental law scholars have proposed six types of action under the Clean Water Act framework that states could take to combat ocean acidification,, though a comprehensive response likely requires worldwide reductions in GHG emissions.

Marine snail shell dissolved in seawater adjusted to pH levels projected for year 2100 due to ocean acidification.

Waste management

See also: Waste management law

A municipal landfill, operated pursuant to waste management law

Waste management laws govern the transport, treatment, storage, and disposal of all manner of waste, including municipal solid waste, hazardous waste, and nuclear waste, among many other types. Waste management can have a significant impact on greenhouse gas emissions. For example, landfills and wastewater treatment systems emit significant amounts of methane in landfill gas, so regulations related to disposal of waste in landfills and the handling of landfill gas affect levels of methane emissions. Supply-side waste regulations like extended producer responsibility may also have an impact, for example by reducing the generation of wastes that will generate GHG emissions as they degrade.

Energy

See also: Energy law and renewable energy law

Efforts to apply energy law to climate change have focused especially on electricity generation, transmission, usage, and pricing.

Natural resources

See also: Natural resources law

Coal production and its regulation are particularly relevant to climate change law, both because burning the extracted coal is the leading source of GHG emissions worldwide AND FACT CHECK, but also because coal mining itself is a significant source of methane emissions.

Water law

See also: water resources law

Borrowed from environmental law#Water resources Water resources laws govern the ownership and use of water resources, including surface water and ground water. Regulatory areas may include water conservation, use restrictions, and ownership regimes.

Species protection

See also: endangered species

Borrowed from environmental law#Wildlife and plants: Wildlife laws govern the potential impact of human activity on wild animals, whether directly on individuals or populations, or indirectly via habitat degradation. Similar laws may operate to protect plant species. Such laws may be enacted entirely to protect biodiversity, or as a means for protecting species deemed important for other reasons. Regulatory efforts may including the creation of special conservation statuses, prohibitions on killing, harming, or disturbing protected species, efforts to induce and support species recovery, establishment of wildlife refuges to support conservation, and prohibitions on trafficking in species or animal parts to combat poaching.

Land use

See also: Land use and Land use, land-use change, and forestry

Environmental justice

See also: climate justice and environmental justice

Securities and commodity market regulation

CFTC:

• Report on managing climate risk in the U.S. financial system.[1]
• 2022 RFI on climate-related risk in commodity and derivative markets [2]

General (including but not limited to U.S. / CFTC)

• ISDA (2021): Legal Implications of Voluntary Carbon Credits [3]

Transactional and corporate law

See also: Business action on climate change

Corporate disclosures

Beyond directly compelled climate action, transparency can be important in motivating voluntary change by private actors with climate impacts. Mechanisms can include:

• Greater odds that an organization will act to address risks once it has become aware of, investigated, and reported on them;
• Actions by an organization in anticipation of or response to public and market reactions to disclosed information; and
• Changes in investment decisions by others seeking to avoid climate-related risks and/or live out environmental commitments and principles through their investment decisions.

Mandatory disclosure under securities law is a primary (and as of late 2021, rapidly evolving) mechanism for requiring transparency to further such action.

In the United States, Congress has not specifically amended securities laws to account for climate change. Instead, the Securities and Exchange Commission (SEC) has proceeded administratively to apply existing securities law to climate issues. In 2010, it issued guidance that companies might need to address climate in four existing areas of periodic disclosures: description of the business (including effects of comlying with climate and environmental regulations), pending legal proceedings, risk factors (such as weather dependence), and the discussion by corporate management of financial condition and likely future operating results. Summary of 2022 pending rules and CITE In both cases, the extent of required SEC disclosures is shaped by reference to what information is "material," meaning it is likely to be significant from the point of view of a reasonable investor..

In the absence of more clear and detailed mandatory disclosures, substantial voluntary, third-party reporting regimes have been developed and widely adopted, sometimes through private agreement as a requirement of doing business. Such efforts include the Task Force on Climate Related Financial Disclosures (TCFD) framework and standards developed by the Sustainability Accounting Standards Board (SASB) and Climate Disclosure Standards Board (CDSB). Some states (notably New York) and private actors have also attempted to compel such disclosures or punish their past past absence through investigations and lawsuits under securities and consumer protection laws, with mixed results..

EU Corporate Sustainability Reporting Directive and “double materiality” including both climate impact on company but also company impact on climate and environment and ISSB efforts to set global baseline

California statutes adopted Oct. 2023 - GHG emissions, climate risk, and claims/use of offsets

Voluntary contractual agreements and requirements

• Contract law article
• Chancery Lane project - any reliable sources discussing it?

Private third-party standards

• Accounting: GHG protocol
• Mitigation: ICROA-accredited systems (and note the potential relationship to compliance market instruments)
• Setting targets and commitments
  • SBTi. Others?
  • Note the cross-walk to regulatory requirements around disclosures, e.g. to consumers and investors, upon making voluntary commitments.

Criminal law

See also: Climate movement § Climate disobedience

WASHINGTON STATE CASE ON NECESSITY DEFENSE

Procedural avenues

Administrative law

See also: Administrative law

Administrative law provides important procedural channels for the actions of governmental agencies dealing (or not dealing) with climate change. First, administrative procedure statutes like the U.S. Administrative Procedure Act (APA) directly shape the procedures that agencies themselves must follow in carrying out their duties, including with respect to climate change.

Second, administrative law can provide an avenue for judicial review of agency actions when the substantive laws guiding them do not provide for citizen suits. For example, the U.S. National Environmental Policy Act (NEPA) has no citizen suit provisions, but interested citizens may sue under the APA to challenge the sufficiency of an agency's NEPA environmental impact assessment. Such challenges have increasingly sought to force agencies to consider climate change in their NEPA analysis.

Litigation

Main article: Climate change litigation

Climate change litigation helps clarify what governmental climate actions are allowed or required under existing law, as well as whether and how existing legal frameworks (such as common law claims or securities laws) apply to private actors with significant contributions to climate change..

Climate change litigation (or just "climate litigation") is an emerging body of environmental law using legal practice and precedent to further climate change mitigation efforts from public institutions, such as governments and companies. In the face of slow politics of climate change delaying climate change mitigation, activists and lawyers have increased efforts to use national and international judiciary systems to advance the effort. Climate litigation typically engages in one of five types of legal claims: Constitutional law (focused on breaches of constitutional rights by the state), administrative law (challenging the merits of administrative decision making), private law (challenging corporations or other organizations for negligence, nuisance, etc., fraud or consumer protection (challenging companies for misrepresenting information about climate impacts), human rights (claiming that failure to act on climate change fails to protect human rights).

In countries with common law legal systems, litigation is the avenue for parties asserting common law claims to seek remedies related to climate change.

Justiciability

See also: Justiciability

In Kivalina v. ExxonMobil Corp., the city and Native Village of Kivalina, Alaska (pictured) sued major oil companies for damages from sea level rise driven by climate change, but the courts dismissed the case for lack of standing to sue.

Environmental personhood; rights of nature; standing?

With the enactment of the 2008 Constitution, Ecuador became the first country in the world to codify the Rights of Nature. The Constitution, specifically Articles 10 and 71–74, recognizes the inalienable rights of ecosystems to exist and flourish, gives people the authority to petition on the behalf of ecosystems, and requires the government to remedy violations of these rights. The rights approach is a break away from traditional environmental regulatory systems, which regard nature as property and legalize and manage degradation of the environment rather than prevent it.

The Rights of Nature articles in Ecuador's constitution are part of a reaction to a combination of political, economic, and social phenomena. Ecuador's abusive past with the oil industry, most famously the class-action litigation against Chevron, and the failure of an extraction-based economy and neoliberal reforms to bring economic prosperity to the region has resulted in the election of a New Leftist regime, led by President Rafael Correa, and sparked a demand for new approaches to development. In conjunction with this need, the principle of "Buen Vivir," or good living – focused on social, environmental and spiritual wealth versus material wealth – gained popularity among citizens and was incorporated into the new constitution.

The influence of indigenous groups, from whom the concept of "Buen Vivir" originates, in the forming of the constitutional ideals also facilitated the incorporation of the Rights of Nature as a basic tenet of their culture and conceptualization of "Buen Vivir."

Climate science in the law

Opponents of climate regulation used emails illegally obtained by hackers in 2009 to claim that climate researcher Michael E. Mann had committed not only error, but fraud, in a 1998–1999 study supporting the occurrence of global warming in the late twentieth century. In response, Mann sued several of those who accused him of fraud, claiming defamation. In 2013, the Superior Court of the District of Columbia held that the critics' claims of fraud were "provably false" and allowed Mann to proceed with his attempt to show that the defendants acted with actual malice because they acted with reckless disregard of the truth of their accusations. ALSO REFERENCE AND BORROW FROM Climatic Research Unit email controversy and from Michael E. Mann#CRU email controversy.

Legal issues raised by new climate-related activities and clean technologies

Carbon capture and sequestration

Forestry? Or deal with elsewhere?

Borrowed from environmental law#Forest resources

A timber operation, regulated by forestry law

This paragraph is an excerpt from Forestry law.[edit]

Forestry laws govern activities in designated forest lands, most commonly with respect to forest management and timber harvesting. Forestry laws generally adopt management policies for public forest resources, such as multiple use and sustained yield. Forest management is split between private and public management, with public forests being sovereign property of the State. Forestry laws are now considered an international affair.

Governmental agencies are generally responsible for planning and implementing forestry laws on public forest lands, and may be involved in forest inventory, planning, and conservation, and oversight of timber sales. Forestry laws are also dependent on social and economic contexts of the region in which they are implemented. The development of scientific forestry management is based on the precise measurement of the distribution and volume of wood in a given parcel, the systematic felling of trees, and their replacement by standard, carefully aligned rows of mono-cultural plantations that could be harvested at set times.

Direct air capture

Main article: Direct air capture

Waste stream capture

See Gerrard (2d ed.) ch. 17 re coal and CCS.

Sequestration

Sequestration of captured carbon presents additional legal issues. The underground injection of CO₂ itself could displace groundwater or cause seismic activity. Leakage of CO₂ or other failure of a project to contain it for very long periods could lead to a variety of tort, regulatory, and contractual liability many years after the carbon is first sequestered.

In the United States, three main areas of federal law apply. The first is the Underground Injection Control (UIC) Program under the Safe Drinking Water Act, particularly the regulations for Class VI wells designed for long-term, large-volume CO₂ sequestration. The second is required monitoring, reporting, and verification to enable regulators to track leakage and storage rates of CO₂ sequestered. The first two are overseen by EPA. Third is the law governing management of federal public lands and properties. Many agencies and laws may apply, but the Department of Interior is particularly important through its administration of (a) onshore lands under the jurisdiction of the Bureau of Land Management, particularly under the Federal Land Policy and Management Act (FLPMA) and the Mineral Leasing Act, and (b) sequestration uses of offshore lands under the Outer Continental Shelf Lands Act (OCSLA), as amended by the Infrastructure Investment and Jobs Act (IIJA) of 2021.

Climate engineering (geoengineering)

See also: Climate engineering

"Climate engineering" or "geoengineering", is "the deliberate and large-scale intervention in the Earth's climate system, in order to moderate global warming." The techniques fall generally into two categories: solar radiation management and carbon dioxide removal. "[A]ll the major methods under discussion are either extremely slow or might well cause other problems, and all are unproven at a large scale."

Legal education and academia

Professor Daniel A. Farber, an authority on climate and environmental law, notes that law curricula already include climate change-specific courses, and that climate change also features heavily in more general environmental law courses. However, he anticipates that climate change issues will feature increasingly in education on other areas of law, including energy, land use, water, insurance, property, torts, corporate and securities (including environmental, social, and corporate governance, or "ESG"), and international, as well as the work of clinical courses. The authors of a 2021 textbook on climate change law wrote that faculty members at their home institution, Pace University School of Law, have discussed the potential of addressing climate change in every course the school offers.

Oddball issues

Need to consider where to put these in the outline

Social Cost of Carbon

Main article: Social cost of carbon

The social cost of carbon or social cost of greenhouse gases (SC-GHG) is one important concept governments may use in weighing the costs and benefits of a climate mitigation measure and determining whether the measure is justified. As of 2023, the U.S. Government defines the social cost of greenhouse gases as

the monetary value of the net harm to society associated with adding a small amount of that GHG to the atmosphere in a given year. In principle, it includes the value of all climate change impacts, including (but not limited to) changes in net agricultural productivity, human health effects, property damage from increased flood risk natural disasters [sic], disruption of energy systems, risk of conflict, environmental migration, and the value of ecosystem services. The SC-GHG, therefore, should reflect the societal value of reducing emissions of the gas in question by one metric ton.

In the U.S. federal context, the SC-GHG is used in federal agencies' mandatory cost-benefit analysis of all "significant" federal regulatory actions, including major regulations, having an economic impact of over $100 million. However, this cost-benefit analysis is required by executive order, not statute or regulation, so the development and application of the SC-GHG in the United States has varied widely with changes of presidential administration.

Others

• Non-GHG climate forcers--Black carbon
• Petroleum systems as a source
• Coal mines as a source, though I've addressed in part in the Natural Resources section

IPCC Sources

• Hoegh-Guldberg, O.; Jacob, D.; Taylor, M.; Bindi, M.; et al. (2018). "Chapter 3: Impacts of 1.5ºC Global Warming on Natural and Human Systems" (PDF). IPCC SR15 2018. pp. 175–311.

• Pörtner, H.; Roberts, D.C.; Poloczanska, E.S.; Mintenbeck, K.; et al. "Summary for Policymakers" (PDF). IPCC AR6 WG2 2022. pp. 3–35.

• van Diemen, R.; Robin Matthews, J.B.; Möller, V.; Fuglestvedt, J.S; et al. (eds.). "Annex I: Glossary" (PDF). IPCC AR6 WG2 2022. pp. 1793–1820. doi:10.1017/9781009157926.020.