Climate change is without doubt the most contemporary issue in international environmental law. However, its implications in a domestic legal regime seem to be increasingly significant because of the emergence of much climate change litigation in domestic tribunals. The editors of Adjudicating Climate Change clearly provide a synthesis of subnational, national, and international perspectives and cases to help us better understand the trends in climate change litigation.
The book comprises three parts: subnational, national, and supranational case-studies. In the first part, a case-study of the Minnesota Environmental Cost Valuation Regulation by Stephanie Stern is provided to demonstrate a “basis for a richer account of the indirect benefits” when “an expressed dissatisfaction with federal and international climate change policy” (p. 47) is shown in the US. Consequently, an Australian case-study made by Lesley K. McAllister attracts us to the possible positive effects of reducing the emission of greenhouse gases when environmental impact litigation is raised by environmentalists before the approval of a coal mining project. In addition, in the chapter by Katherine Trisolini and Jonathan Zasloff, the New Zealand Environment Court argued for the responsibility of local governments to protect the Earth from climate change. Nevertheless, the authors proposed a bottom-up approach from localities against the top-down assumption that their Court preferred. Last in this part, based on public trust law, Mary C. Wood inspires us by proclaiming a new potential “atmosphere trust litigation” in which “all governments hold natural resources in trust” and “bear the fiduciary obligation to protect” them (p. 99).
In the part on national cases, Hari. M. Osofsky tries to illuminate the significance of mutual understanding between science and law. Taking the example of the famous Massachusetts v. EPA case, he argues that without such an intersection, improvement over the status quo would not be so easy. Furthermore, Brendan R. Cummings and Kassie R. Siegel underline the importance of protecting biodiversity affected by climate change and urge the effective implementation of the US Endangered Species Act as grounds for reducing greenhouse gas emissions. Surprisingly, the Nigerian court also confirmed some human rights to security by targeting gas flaring by oil companies, and Amy Sinden develops relevant arguments for civil and political human rights in establishing the bases of environmental rights. Moreover, David A. Grossman proposes a model of tort liability for the companies emitting greenhouse gases, within the realm of public nuisance and product liability. He also analyzes questions of justiciability, causation, proposition of merits, and possible injunctive relief in applying a tort regime to climate change liability. In the realm of insurance and climate change, Jeffery W. Stempel illustrates that besides first-party insurance which could cover property losses caused by climate change, liability insurance would also be included to bring insurers involved in climate change litigation by the “duty to defend” clauses in the insurance contract.
In the final part of supranational examples, Erica J. Thorson proposes the possibility of mitigating the negative effects of climate change under the regime of the World Heritage Convention. She also urges that all the States Parties should bear common responsibility to take adequate mitigation actions for World Heritages sites. In the following article, Hari M. Osofsky continues to use an indigenous peoples’ rights approach for the linkage of human rights and climate change, taking the example of the Inuit Petition to the Inter-American Commission on Human Rights. In contrast, Jennifer Gleason and David B. Hunter bring a different perspective for the international finance mechanism to the discussion forum on climate change, suggesting that the potential use of accountability mechanisms for environmental policies in international financial institutions would help to alleviate the impacts of climate change; although these mechanisms do not have the power to order compensation, their ability to shine a public spotlight on non-compliance would promote global awareness of climate change. Furthermore, William C.G. Burns chooses another international forum, the UN Fish Stocks Agreements, as a possible means for addressing climate change, especially for the possibility to engage the US, the EU, and China on climate issues. Moving forward, Andrew Strauss examines the possibility of using the platform of the International Court of Justice for responding to climate challenges. However, jurisdictional and substantive arguments are still hurdles for possible cases and the author suggests that the role of the ICJ “needs to be seen as complementary to a broader political strategy” (p. 356). Further, David B. Hunter analyzes the possible impacts of domestic and international litigation strategies for pushing the development of climate law and policy in new directions, for the sake of both governments and the private sector. In the concluding chapter, Osofsky points to the multiscalar nature of climate adjudication and urges multilevel litigation-oriented governance in climate change—individuals, localities, states, nations, regional and supranational bodies, international entities, and other actors (for example NGOs) all included.
This brilliant collective work provides us with a comprehensive account of each perspective on climate litigation. Nevertheless, the governance side of climate change is somewhat left behind because of the confined topics. Moving to a once and for all resolution, multilevel governance at the beginning of programming and policy-making would from the start form our best reaction to climate change, even though litigation strategies and arguments are still needed for concerned individuals and entities. In the epoch of the post-Kyoto regime, how international society should react to the challenges provoked by climate change, and how they should ensure effective implementation in domestic, regional, and international arenas, should be our mission without any excuse.
