Climate change litigation : regulatory pathways to cleaner energy / Jacqueline Peel, Hari M. Osofsky.
2015
K3585.5 .P44 2015 (Map It)
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Title
Climate change litigation : regulatory pathways to cleaner energy / Jacqueline Peel, Hari M. Osofsky.
Published
Cambridge, United Kingdom : Cambridge University Press, 2015.
Call Number
K3585.5 .P44 2015
ISBN
9781107036062 (hardback)
1107036062 (hardback)
1107036062 (hardback)
Description
xv, 352 pages : illustration ; 24 cm.
System Control No.
(OCoLC)894935677
Summary
"This examination of the role of litigation in addressing the problem of climate change focuses not only on how the massive and growing number of lawsuits influences regulation directly, but also on how the lawsuits shape corporate behaviour and public opinion. It provides readers with an understanding of how these lawsuits have shaped approaches to mitigation and adaptation, and have been used to try to force and to block regulation. There is a particular emphasis on lawsuits in the United States and Australia, the two jurisdictions which have had the most climate change litigation in the world, and the lessons provide broader insights into the role of courts in addressing climate change"-- Provided by publisher.
"This examination of the role of litigation in addressing the problem of climate change focuses not only on how the massive and growing number of lawsuits influences regulation directly but also on how the lawsuits shape corporate behavior and public opinion. It provides readers with an understanding of how these lawsuits have shaped approaches to mitigation and adaptation and have been used to try to force and to block regulation. There is a particular emphasis on lawsuits in the United States and Australia, the two jurisdictions that have had the most climate change litigation in the world, and the lessons supply broader insights into the role of courts in addressing climate change"-- Provided by publisher.
"This examination of the role of litigation in addressing the problem of climate change focuses not only on how the massive and growing number of lawsuits influences regulation directly but also on how the lawsuits shape corporate behavior and public opinion. It provides readers with an understanding of how these lawsuits have shaped approaches to mitigation and adaptation and have been used to try to force and to block regulation. There is a particular emphasis on lawsuits in the United States and Australia, the two jurisdictions that have had the most climate change litigation in the world, and the lessons supply broader insights into the role of courts in addressing climate change"-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Added Author
Table of Contents
Preface and acknowledgments
xi
1.
Why climate change litigation matters
1
1.1.
Introduction
1
1.2.
What is climate change litigation?
4
1.3.
Why climate litigation matters as part of climate governance
9
1.3.1.
Regulatory gaps created by struggling international climate negotiations
10
1.3.2.
Litigation as an element of multidimensional climate governance
13
1.3.3.
Role of court decisions in shaping smaller-scale decision making
15
1.4.
Climate litigation and regulatory pathways in the United States and Australia
16
1.4.1.
Climate change litigation in the United States
19
1.4.2.
Climate change litigation in Australia
20
1.4.3.
How the United States and Australia compare
22
1.5.
Outline of the book
25
2.
Model for understanding litigation's regulatory impact
28
2.1.
Introduction
28
2.2.
Litigation as a regulatory tool
29
2.2.1.
Proactive and antiregulatory litigation
30
2.2.2.
Regulatory impact
32
2.3.
Regulatory pathways for climate change litigation
35
2.3.1.
Direct regulatory impacts
37
2.3.1.1.
Constitutional interpretation
38
2.3.1.2.
Statutory interpretation
40
2.3.1.3.
Common law interpretation
45
2.3.2.
Indirect regulatory impacts
47
2.3.2.1.
Increasing costs and risks
48
2.3.2.2.
Changing social norms and values
49
2.4.
Conclusion
52
3.
Litigation as a mitigation tool
54
3.1.
Introduction
55
3.2.
"carbon economy" in the United States and Australia
56
3.3.
US mitigation litigation--regulation linkages
60
3.3.1.
International-level litigation--regulation linkages
60
3.3.2.
National-level litigation--regulation linkages
62
3.3.2.1.
Clean Air Act
63
3.3.2.2.
Other environmental statutes
71
3.3.2.3.
Common law approaches
76
3.3.3.
State-level litigation--regulation linkages
78
3.4.
Australian mitigation litigation--regulation linkages
83
3.4.1.
International-level litigation--regulation linkages
83
3.4.2.
National-level litigation--regulation linkages
86
3.4.2.1.
Climate litigation prior to national climate change legislation
87
3.4.2.2.
Advent and demise of national climate legislation in Australia
90
3.4.2.3.
new era of climate litigation in Australia?
94
3.4.3.
State-level litigation--regulation linkages
96
3.5.
Comparing mitigation litigation in the United States and Australia
104
3.6.
Conclusion
106
4.
Litigation as an adaptation tool
108
4.1.
Introduction
108
4.2.
role of adaptation litigation in Australia
112
4.2.1.
Climate change impacts in Australia
113
4.2.2.
Government action to address adaptation in Australia
116
4.2.3.
Australian adaptation litigation
120
4.2.3.1.
Adapting to coastal impacts
122
4.2.3.2.
Responding to increasing disaster risks
131
4.2.3.3.
Liability for climate change harms
134
4.3.
Emerging adaptation litigation in the United States
143
4.3.1.
Climate change impacts in the United States
143
4.3.2.
Government action to address adaptation in the United States
146
4.3.3.
US adaptation litigation
150
4.3.3.1.
Earlier litigation with some connection to adaptation: Endangered Species Act and natural disaster tort cases
151
4.3.3.2.
Emerging cases addressing adaptation planning
154
4.4.
Comparing adaptation litigation in Australia and the United States
166
4.5.
Conclusion
169
5.
Corporate responses to litigation
173
5.1.
Introduction
173
5.2.
Corporate climate change responses
176
5.2.1.
Drivers of corporate climate action
178
5.2.2.
Litigation risk as a component of corporate climate risk management
182
5.3.
Sectoral responses to climate litigation risk
185
5.3.1.
Energy
186
5.3.2.
Land use
199
5.3.3.
Insurance
202
5.3.4.
Finance and investment
207
5.3.5.
Law firms and other professional advisors
216
5.4.
Conclusion
219
6.
Litigation's role in shaping social norms
221
6.1.
Introduction
221
6.2.
Litigation and public perceptions of climate change
224
6.2.1.
Public attitudes to climate change: United States and Australia
224
6.2.2.
Role of litigation in shaping public perceptions of climate change
233
6.2.3.
Partisan politics and regulatory responses to climate change litigation
241
6.3.
Courts as sites for public debates over science and regulatory scale
249
6.3.1.
Science, scale, and law in the climate decisions of the US Supreme Court
251
6.3.2.
Scaling "local" in Australian cases on scope 3 emissions
255
6.3.3.
How US and Australian courts compare as forums for consideration of science
260
6.4.
Conclusion
264
7.
Barriers to progress through litigation
266
7.1.
Introduction
266
7.2.
Barriers to court access
269
7.2.1.
Separation-of-powers barriers
270
7.2.2.
Cost barriers
279
7.3.
Antiregulatory litigation
283
7.3.1.
Challenges to federal regulatory action
285
7.3.2.
Challenges to state regulatory action
290
7.4.
Resistance to and backlash against litigation
300
7.5.
Conclusion
308
8.
future of climate change litigation
310
8.1.
Introduction
310
8.2.
What has been achieved by pro-regulatory climate change litigation
311
8.2.1.
Contribution of US climate change litigation
312
8.2.2.
Contribution of Australian climate change litigation
317
8.2.3.
Explaining divergences between the US and Australian litigation experience
321
8.3.
Future pathways for climate change litigation
324
8.3.1.
United States
324
8.3.2.
Australia
332
8.4.
Conclusion: litigation and our climate change future
338
Index
341