Climate change law: the emergence of a new legal discipline.

Author:Peel, Jacqueline
 
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[In recent times the issue of climate change has catapulted to the forefront of scientific and policy agendas. Climate change threatens to have wide-ranging impacts on ecosystems and presents enormous challenges for conventional modes of socioeconomic governance. Against this backdrop, the last few years have seen the consolidation of a body of legal rules and principles organised around the central problems of mitigating and adapting to climate change. The new climate change law spans from international to local levels of governance, and encompasses the activities of a wide range of actors including governments, businesses and non-governmental environmental groups. This article surveys the scope of the new discipline of climate change law, providing a synopsis of its primary component areas. It also elaborates the main challenges climate change law is likely to face as its development proceeds apace, such as coping with internationalisation of the greenhouse problem, ensuring that avenues for widespread participation in climate change regulation exist, and integrating governance and regulatory frameworks across political and disciplinary boundaries. How climate change law responds to this last challenge, in particular, is likely to be determinative of its effectiveness and cohesiveness as a body of law for dealing with the broad predicted impacts of global warming.]

CONTENTS I Introduction II The Backdrop for the Emergence of Climate Change Law III The Scope of Climate Change Law A International Climate Change Regulation 1 The Global Climate Change Regime: The UNFCCC and the Kyoto Protocol 2 Climate Change Issues in Broader International Law B National Climate Change Regulation 1 Howard-Era Regulation: Voluntary Measures and the MRET 2 National Emissions Trading Scheme 3 Other National Climate Change Measures (a) Greenhouse and Energy Reporting (b) Environmental Impact Assessment and Approval Requirements (c) (No) Nuclear Power Policy C State-Based Climate Change Regulation 1 Carbon Trading and Sequestration 2 Renewable and Low-Emissions Energy Sources 3 Geosequestration 4 Energy Efficiency Requirements D Climate Change Action at the Local Level E Contribution of the Courts to Climate Change Law 1 Establishing a Causal Link 2 Indirect and Cumulative Impacts 3 Role of Environmental Principles (a) The Anvil Hill Case (b) The Taralga Case 4 A Lingering Issue: Scientific Proof of Climate Change 5 A Continuing Role for the Courts F Participation by the Non-Governmental Sector in Climate Change Law IV Key Challenges for Climate Change Law A The Challenge of Internationalisation B The Challenge of Participation C The Challenge of Integration D The Challenge of Regulatory Coordination V Conclusion I INTRODUCTION

It is only a matter of decades since lawyers first began to hail the emergence of the new field of 'environmental law'. (1) Environmental law has since developed rapidly and now encompasses a range of sub-specialities, including international environmental law, biodiversity law and water law. (2) The latest branch of the metaphorical environmental legal tree to take shape is that of 'climate change law'. It has emerged against the backdrop of intensifying scientific, economic, social and political debates over the impacts of greenhouse gas ('GHG') emissions on the world's climate system. In response, there has been an accumulation of case law, legislative development and international regulation that makes up a distinctive body of legal principles and rules identified as 'climate change law'. As a leading environmental law barrister recently declared, climate change law 'is an organising principle whose time has arrived'. (3)

The birth of a new legal discipline is often a matter of interest only to sub-specialists in an already speeialised field. The ramifications of the emergence of climate change law, however, promise to be more far-reaching. For a start, the extent of the climate change problem is so broad that it has the potential to affect many sectors of social life and legal scholarship. To take but a few examples, climate change law is likely to be relevant to insurers considering the scope of risks to include in insurance contracts, international bodies concerned with threats to peace and security in the face of water shortages, and domestic energy retailers drawing on different sources of power generation to supply consumers.

In addition, climate change presents enormous challenges for socioeconomic governance systems. (The federal government's leading climate change adviser, Professor Ross Garnaut, has recently described climate change as 'a diabolical policy problem.') (4) Consequently, devising legal solutions to climate change is likely to involve profound changes to existing governance and regulatory frameworks, with reverberations felt in many other areas of law such as constitutional law, administrative law and property law.

Against this backdrop, this article seeks to provide an introduction to the new field of climate change law and to highlight the key issues that it will face as its development proceeds apace. While the topic of this article is the distinctive area of climate change law, it is argued that an important aspect of this new disciplinary field must be an awareness of, and efforts to ensure effective integration with, other parts of the environmental regulatory framework, as well as with the diverse disciplines (such as science, economics and social science) that underpin conceptions of the climate change challenge. Part II begins with a discussion of the factors that have led to the emergence (or, perhaps more accurately, re-emergence) of climate change law as a dynamic field of legal endeavour. This is followed in Part III by a synopsis of the major areas of legal development and principle that make up the overall body of existing climate change law. Finally, Part IV turns to consider the key issues facing the future development of climate change law, such as the effects of internationalisation of the greenhouse problem, the need to ensure avenues for widespread participation in climate change regulation, and the challenges of integrating and coordinating governance as well as regulatory frameworks across political and disciplinary boundaries.

II THE BACKDROP FOR THE EMERGENCE OF CLIMATE CHANGE LAW

As Tim Bonyhady and Peter Christoff note in their 2007 book Climate Law in Australia, the problem of climate change and legal responses to it have some history. (5) Indeed, the first scientific article discussing possible global warming as a result of carbon dioxide ('C[O.sub.2]') emissions was published in 1896, (6) though an international scientific and legal framework for dealing with climate change did not develop until a century later in the early 1990s. (7) In recent years, we have witnessed more intense scientific and sociopolitical debates over climate change, with a growing sense of urgency regarding the need to address the problem. In Australia, Bonyhady and Christoff comment that 2006 was the year that climate change matured into an issue of significant public (and inevitably political) concern. (8) This has led to a profusion of legal developments that together coalesce to form the new body of law dubbed 'climate change law'.

A number of factors have been important in bringing about a renewed focus on climate change issues and in paving the way for the emergence of climate change law. A major influence has been the consolidation of scientific data on climate change that has marginalised (albeit not entirely silenced) climate change sceptics. For instance, the Intergovernmental Panel on Climate Change ('IPCC')--whose work is underpinned by the contributions of hundreds of scientists worldwide--released its Climate Change 2007: Synthesis Report--Summary for Policymakers ('IPCC Fourth Assessment Report') in 2007 declaring warming of the Earth's climate system to be 'unequivocal'. (9) The IPCC also warned that global warming of more than two degrees Celsius above 1990-2000 levels threatens to have a variety of severe impacts, such as increases in human mortality, widespread loss of biodiversity, mass coral reef mortality, deglaciation, a greater frequency of extreme weather events, decreasing global agricultural productivity and food shortages. (10) In the face of such scientific consensus and concern, even the most reluctant governments have acknowledged the reality of climate change and the importance of taking actions to address the problem. In Australia, for example, the former federal government led by John Howard gave up its long-professed scepticism over climate change in 2007. The then Prime Minister announced a raft of measures in July 2007, including the introduction of an emissions trading scheme. (11) Other government institutions, such as the courts, have followed suit by recognising (with some exceptions) the reality and importance of climate change. (12)

Another factor instrumental in altering governmental attitudes to climate change has been the release of major economic analyses predicting the high cost over the long-term of a failure to address anthropogenic climate change (that is, climate change due to human activities). For instance, The Economics of Climate Change: The Stern Review ('Stern Review') released in 2006 had an enormous impact worldwide. (13) The Stern Review, commissioned by the British Treasury, stressed that the benefits of strong and early action to address climate change far outweigh the economic costs of not acting, and also warned of very serious impacts on economic growth and development if climate change went unmitigated. (14) In Australia, the findings of the Stern Review have recently been echoed in the various reports prepared by the federal government's climate change adviser, economist Ross Garnaut. (15) In The Garnaut Climate Change Review: Final Report ('Garnaut Review'), Garnaut points out that Australia has...

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