Climate Change Law: The Emergence of a New Legal Discipline

By Peel, Jacqueline | Melbourne University Law Review, December 2008 | Go to article overview
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Climate Change Law: The Emergence of a New Legal Discipline


Peel, Jacqueline, Melbourne University Law Review


[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'.

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