An Inconvenient Deliberation

Name: An Inconvenient Deliberation | The Precautionary Principle's Contribution to the Uncertainties Surrounding Climate Change Liability
Brand: Kluwer Law International
Price: 210.99 EUR
Availability: OnlineOnly

The Precautionary Principle's Contribution to the Uncertainties Surrounding Climate Change Liability

Miriam Haritz(Autor*in)

Kluwer Law International (Verlag)

Erschienen am 27. Mai 2011

488 Seiten

E-Book

ePUB mit Adobe-DRM

Systemvoraussetzungen

978-90-411-4270-2 (ISBN)

210,99 €inkl. 7% MwSt.

Systemvoraussetzungen

für ePUB mit Adobe-DRM

E-Book Einzellizenz

Als Download verfügbar

Beschreibung

There is increasing evidence to suggest that adaptation to the inevitable is as relevant to climate change policymaking as mitigation efforts. Both mitigation and adaptation, as well as the unavoidable damage occurring both now and that is predicted to occur, all involve costs at the expense of diverse climate change victims. The allocation of responsibilities-implicit in terms of the burden-sharing mechanisms that currently exist in public and private governance-demands recourse under liability law, especially as it has become clear that most companies will only start reducing emissions if verifiable costs of the economic consequences of climate change, including the likelihood of liability, outweigh the costs of taking precautionary measures. This vitally important book asks: Can the precautionary principle make uncertainty judiciable in the context of liability for the consequences of climate change, and, if so, to what extent? Drawing on the full range of pertinent existing literature and case law, the author examines the precautionary principle both in terms of its content and application and in the context of liability law. She analyses the indirect means offered by existing legislation being used by environmental groups and affected individuals before the courts to challenge both companies and regulators as responsible agents of climate change damage. In the process of responding to its fundamental question, the analysis explores such further questions as the following: What is the role of the precautionary principle in resolving uncertainty in scientific risk assessment when faced with inconclusive evidence, and how does it affect decision-making, particularly in the regulatory choices concerning climate change? To this end, what is the concrete content of the precautionary principle? How does liability law generally handle scientific uncertainty? What different types of liability exist, and how are they equipped to handle a climate change liability claim? What type of liability is best suited for precautionary measures or a lack thereof? Can the application of the precautionary principle make a difference to the outcomes of climate change liability claims? In order to draw conclusions concerning the legal uncertainties posed by climate change, the author draws examples from national legislations representative of the various legal systems, as well as from existing treaties. General rules and obligations relevant to climate change liability are examined, and a selection of actual legal cases from around the world concerning climate change, be it actual liability claims or litigation indirectly relevant to a claim, is also presented. As an overview of the different legal challenges created by climate change liability, this book is without peer. The practical meaning and impact of these findings for lawyers (whether corporate or activist), for regulators and policymakers, and for decision-makers in governmental bodies and private companies is immeasurable.

Weitere Details

Weitere Ausgaben

Inhalt

Intro
Title Page
Copyright Page
Dedication
Contents
About the Author
Preface
Acknowledgments
List of Abbreviations
Introduction: A Novel Legal Perspective on a Meteorological Phenomenon
1. Reasons for This Research
2. Problem Definition
3. Research Questions, Structure and Methodology
Chapter 1: Climate Change and Uncertainty: Defining the Framework Setting of a Global Problem
1. Introduction
2. The Terminology of Climate Change
3. A Brief History of Scientific Evidence of Climate Change
4. Measuring and Forecasting Climate Change: The Actual, Calculated, and Estimated Consequences
4.1. Factual Effects
4.1.1. General Temperature Rise
4.1.2. The Rise in Sea Level
4.1.3. Extreme Weather Events
4.1.4. Infectious Diseases and Other Health Problems
4.1.5. Ecological Harm to Flora and Fauna
4.1.6. Other Predicted Effects
4.1.7. Abrupt Climate Change
4.1.8. Conclusion on Climate Change Effects
4.2. Socio-economic and Financial Implications
4.2.1. The Costs of Mitigation
4.2.2. The Costs of Adaptation
4.2.3. The Estimated Climate Change Damage Costs
5. The Thin Line between Ignorance, Ambiguity, Risk and Uncertainty
6. The Particularities of Climate Change Risks and Uncertainties
6.1. Climate Change Risk
6.2. Climate Change Uncertainty
6.2.1. The Example of the Pole Caps
6.2.2. Other Major Climate Change Uncertainties
6.3. Conclusion on Climate Change Risks and Uncertainties
7. Efforts to Govern Climate Change despite Uncertainties
7.1. The IPCC and the UNFCCC Origins as of 1988
7.2. The UNFCCC and the Kyoto Protocol as of 1997
7.3. The Post-Kyoto Setting: Negotiations for 2012 and After
7.4. Mitigation through Emissions Reductions in Practice
7.5. Adaptation Processes in Practice
7.6. Conclusions on the Efforts to Govern Climate Change
8. Conclusion
Chapter 2: The Precautionary Principle as a Measure to Handle Uncertainty
1. Introduction
2. Responding to Societal Needs: From Prevention to Precaution
3. The Development and Core Elements of the Precautionary Principle as an Instrument to Regulate Uncertainty
4. The Legal Status and Judicial Application of the Precautionary Principle
4.1. The Legal Nature of Precaution as a Principle and Its Legal Implications
4.2. Recognition of the Precautionary Principle on National Level
4.3. The Recognition of the Precautionary Principle at European Level
4.4. The Recognition of the Precautionary Principle at International Level
5. The Precautionary Principle in Climate Change Policy
6. Countering Common Criticism on the Precautionary Principle
7. The Risk Trade-Offs Inherent in the Precautionary Principle
8. The Main Modalities of the Precautionary Principle
8.1. Overview of the Main Versions of the Precautionary Principle
8.2. The Three Main Versions of the Precautionary Principle for the Purpose of This Research in Content
8.3. The Procedural Precautionary Principle
9. Conclusion
Chapter 3: Establishing the Conditions of Liability Law in the Face of Climate Change Uncertainties
1. Introduction
2. Climate Change Liability Constellations and the Goals of Liability Law
2.1. Possible Liability Scenarios
2.2. The Compatibility of Climate Change Liability with the Goals of Liability Law
2.3. Conclusion on Climate Change Liability Constellations and Goals
3. Identifying the Most Problematical Aspects of Climate Change Liability Requirements
3.1. Choosing the Basis of Liability: Fault versus Strict Liability
3.1.1. Fault Liability
3.1.2. Strict Liability
3.1.3. Standards of Care and Wrongfulness
3.1.3.1. National Level
3.1.3.2. European Level
3.1.3.2.1. Product Liability-Directive 1985/374/EEC
3.1.3.2.2. Environmental Liability-Directive 2004/35/EC
3.1.3.2.3. The Principles of European Tort Law
3.1.3.3. International Level
3.1.3.3.1. Specific Climate Change Regimes
3.1.3.3.2. Other International Obligations
3.1.3.3.2.1. The No-Harm Rule
3.1.3.3.2.2. The Prevention of Transboundary Harm
3.1.4. Conclusions on the Basis of Liability for Climate Change Cases
3.1.4.1. Fault Liability and Climate Change
3.1.4.2. Strict Liability and Climate Change
3.2. Causation in the Strict Sense and the Different Levels of Causal Uncertainty
3.2.1. Types of Causation
3.2.2. Normative Causation in Different Legal Systems
3.2.2.1. National Level
3.2.2.1.1. Specific or Factual Causation
3.2.2.1.2. Different Legal Theories of Causation
3.2.2.1.2.1. The Theory of Proximate Cause
3.2.2.1.2.2. The Theory of Adequacy
3.2.2.1.2.3. The Theory of Equivalence
3.2.2.1.2.4. Probabilistic Approach
3.2.2.1.2.5. The Openly Flexible Approach
3.2.2.2. European Level
3.2.2.3. International Level
3.2.3. Causation in Climate Change
3.2.3.1. Generic Causation and Climate Change
3.2.3.2. Specific Causation and Climate Change
3.2.3.3. Exclusion of the Background Risk
3.2.3.4. Adequate Threshold for Probability
3.2.3.5. Applying Legal Causation Theories to Climate Change
3.2.3.6. Conclusion for the Normative Elements of Causation in Climate Change
3.2.4. The Distribution of Causal Responsibility in View of Multiparty Causation
3.2.4.1. National Level
3.2.4.1.1. Individual Liability per Actor
3.2.4.1.2. Joint and Several Liability
3.2.4.1.3. Proportional Liability
3.2.4.1.4. Total Liability for Excessive Harm
3.2.4.2. European Level
3.2.4.2.1. Directive 2004/35/EC on Environmental Liability
3.2.4.2.2. Directive 1985/374/EEC on Product Liability
3.2.4.2.3. The Principles of European Tort Law
3.2.4.3. International Level
3.2.4.3.1. Specific Climate Change Regimes
3.2.4.3.2. Other International Obligations- The Principle of Common but Differentiated Responsibility
3.2.4.4. Conclusions for Multiple Causation in Climate Change
3.3. Extension, Limitation and Exclusion of Liability
3.3.1. Possible Remedies in a Liability Claim
3.3.1.1. Damages
3.3.1.2. Injunctions
3.3.1.3. National Level
3.3.1.4. European Level
3.3.1.4.1. Directive 2004/35/EC on Environmental Liability
3.3.1.4.2. Directive 1985/374/EEC on Product Liability
3.3.1.4.3. The Principles of European Tort Law
3.3.1.5. International Level
3.3.1.6. Conclusion as to Remedial Extension in Climate Change Liability
3.3.2. The Influence of Time and Knowledge
3.3.2.1. Evolution of Standard of Care and Ex Post Liability Rules
3.3.2.1.1. Retroactivity
3.3.2.1.2. Development Risk
3.3.2.2. Manifestation of Present and Future Damage
3.3.2.3. National Level
3.3.2.4. European Level
3.3.2.5. International Level
3.3.3. Conclusion as to the Temporal Extension of Climate Change Liability
3.3.4. Excurse: Standing under U.S. Common Law
3.4. Defenses
3.4.1. State of the Art and Foreseeability-Defense
3.4.2. Force Majeure
3.4.3. Risk-Cost Defense
3.4.4. Equitable Defense of Unclean Hands or Contributory Negligence
3.4.5. Regulatory Compliance Defense
3.4.6. Defenses at National Level
3.4.7. Defenses at European Level
3.4.8. Defenses at International Level
3.4.9. Conclusion as to the Limitation or Exclusion of Climate Change Liability
3.5. Conclusion and Outlook on the Most Problematical Aspects of Climate Change Liability Requirements
4. Climate Change Litigation with Relevance to Liability Claims
4.1. National Level
4.1.1. Actual Liability Claims
4.1.1.1. Connecticut v. American Electric Power
4.1.1.2. California v. General Motors
4.1.1.3. Kivalina v. Exxon Mobil
4.1.1.4. Comer v. Murphy Oil
4.1.1.5. Korsinsky v. EPA
4.1.2. Conclusion on Existing Climate Change Liability Claims
4.1.3. Other Relevant Cases
4.1.3.1. Lawsuits Concerning Pollution Regulation
4.1.3.1.1. Massachusetts v. EPA
4.1.3.1.2. Other Cases
4.1.3.2. Disclosure of Information, in Particular over Externalized Activities
4.1.3.3. Environmental Impact Assessments
4.1.3.4. Failure to Comply with Kyoto Requirements
4.1.3.5. Human Rights Violations
4.2. International Level
4.2.1. Inuit Circumpolar Conference v. USA
4.2.2. The Case of the Pacific Island States
4.2.3. Outlook
5. Conclusion
Chapter 4: The Precautionary Principle and Climate Change Liability
1. Introduction
2. The General Recognition of the Precautionary Principle in Liability Law Literature
2.1. National Level
2.1.1. Recognition of the Application of the Precautionary Principle to Liability Law in Common Law Jurisdictions
2.1.1.1. The Example of Canada
2.1.1.2. Other Countries
2.1.2. Recognition of the Application of the Precautionary Principle to Liability Law in Civil Law Jurisdictions
2.1.2.1. The Example of France
2.1.2.2. Other Countries
2.2. European Level
2.3. International Level
3. Climate Change Liability with the Precautionary Principle
3.1. The Precautionary Principle as a Judicial Tool in Solving Climate Change Liability Uncertainties
3.1.1. The Choice between Strict and Fault Liability at the Basis of Liability
3.1.2. Setting the Standard of Care and Proving Fault and Wrongfulness in Fault Liability
3.1.3. Affecting the Burden of Proof
3.1.3.1. The Burden of Proof of Fault or Negligence
3.1.3.2. The Burden of Proof of Causation
3.1.3.2.1. Proving Generic Causation
3.1.3.2.2. Proving Specific Causation
3.1.3.2.3. Differentiation in View of Multi-Party-Causation
3.1.3.3. Examples of Modifying the Burden of Proof from Different Jurisdictions
3.1.3.4. Risk-Trade-Offs and the Scope of Modifying the Burden of Proof in a Liability Claim
3.1.3.5. Modalities of Modifying the Burden of Proof
3.1.3.6. The Necessity for Modifying the Burden of Proof
3.1.3.7. Conclusion on the Effect of the Precautionary Principle on the Burden of Proof
3.1.4. Influencing the Aspect of Time
3.1.4.1. Defining the Extent of Damages and Other Remedies
3.1.4.1.1. Personal Injury Damages
3.1.4.1.1.1. Present Damage
3.1.4.1.1.2. Future Damage
3.1.4.1.2. Damages Covering Mitigation Costs
3.1.4.1.3. Damages Covering Adaptation Costs
3.1.4.1.4. Injunctions aimed at Achieving Mitigation
3.1.4.2. Conclusion on the Extent of Damages and Other Remedies
3.1.5. Shaping Possible Defenses and the Requirement of Foreseeability
3.1.5.1. State of the Art and Foreseeability-Defense
3.1.5.2. Risk-Cost-Defense
3.1.5.3. Regulatory Compliance-Defense
3.1.5.4. Other Defenses: Equitable Defense of Unclean Hands or Contributory Negligence and Force Majeure
3.1.5.5. Conclusion on the Effect of the Precautionary Principle on Possible Defenses
3.2. Can the Precautionary Principle Guide the Behavior of the Tortfeasor?
3.3. The Precautionary Principle Applied to Climate Change Liability in Cases of Direct or Indirect Responsibility for CO2 Emissions
3.3.1. Effects of the Precautionary Principle on the Cases Comer v. Murphy Oil and Korsinsky v. EPA
3.3.2. Effects of the Precautionary Principle on the cases Connecticut v. AEP, California v. GM and Kivalina v. Exxon Mobil
3.3.3. Conclusions for Cases to Be Tried under International Law
3.3.4. Outlook
4. Climate Change Liability from the Precautionary Principle
4.1. Justificative Effect of Regulatory Norms and Derivable Individual Rights
4.2. False Negatives versus False Positives-The Consequences of Too Little or Too Much Precaution in Perspective
4.3. The Precautionary Principle in Its Different Variations Applied to Climate Change Liability Cases-Suing for Governmental Over- or Underregulation
4.3.1. Korsinsky v. EPA
4.3.2. Green Mountain v. Crombie
5. The Effect of the Interpretative Uncertainty of the Precautionary Principle on Judicial Decisions
6. What Version of the Precautionary Principle to Choose?
7. The Added Value of the Precautionary Principle for the Future of Climate Change Liability
8. One Among Several -Alternative Means of Compensation
9. Conclusion
Conclusion: An Inconvenient Deliberation
1. Main Findings
2. Main Policy Conclusions and Outlook
3. Limitations of the Present Research and the Necessity for Further Research
Bibliography
Table of Cases
Index

Systemvoraussetzungen

Als PDF speichern Als Link merken