Good Law Project’s Post

On 21 May 2024, ITLOS issued its climate advisory opinion. This is an important decision for international and domesric energy lawyers. Most importantly, the decision introduces an apparently new UNCLOS standard that many will argue is relevant in other contexts, as well - ‘stringent’ due diligence. I refer you to an excellent analysis of the decision here: https://lnkd.in/eQhXaGiZ What I address here is what does ‘stringent’ diligence mean from an energy law perspective? What does it requires from domestic regulators? The decision offers different potential solutions.. The international law due diligence standard is well established. It requires diligent conduct - reasonable preparedness. Did ITLOS intended to modify this international legal standard? By way of analogy, the distinction between ordinary and stringent diligence might be comparable ordinary negligence vs. strict liability. While strict liability is not absolute - it is still measured against unreasonable risk - it imposes a seemingly more ‘stringent’ standard. If this is what ‘stringent’ diligence means, it would impose a duty to avoid an unreasonable risk of climate change. This closes in on the boundary between obligations of conduct and obligations of conduct. (The analogy is not fully well drawn as diligence follows a nuisance rather than negligence paradigm.) On balance, it does not seem that ITLOS intended this result. Had it intended such a shift, it likely would have elaborated it meaning more fully. This means the word ‘stringent’ does not a change in the applicable rules outright. Rather, ITLOS wished to communicate that climate change is particularly important - important because, in the law of the sea context alone, it touches millions of people and also deeply affects ecosystems. We could again take this in two ways. We could outright say that climate change is just more important than other considerations. ‘Stringent’ diligence means to give a kind of super preference to climate impacts over other impacts that policies wish to achieve. Alternatively, we can understand ‘stringent’ as a factual modifier, not a legal one. Climate change deserves greater weight as a matter of factual inputs into legal analysis. This second approach would be a more precautionary approach to climate impacts rather than one that would give a greater preference. Science does not know with certainty what the impacts will be. It provides a range of potential impact. As we look at diligence we could therefore look at a requirement that more serious impact be weighed more heavily. This would be an approach that would lend itself to a greater harmonization across regimes. I will write a separate post on strigency as precaution soon.

In this blog for ABILA, I offer some preliminary comments on the challenges with relying on voluntary corporate climate commitments as a means of encouraging reductions in greenhouse gas emissions within the private sector, as well as highlighting the difficulty with moving toward a mandatory set of corporate climate commitments.

Through The Desert Towards Fresh Water - Or Just A Fata Morgana? - the peer-reviewed version of our #COP28 report is now out in CCLR 04/2023. It discusses the conference's outcomes in the areas of mitigation, loss and damage, adaptation, climate finance, and cooperation under Article 6 of the Paris Agreement, with Christof Arens, Christiane Beuermann, Carsten Elsner, Lukas Hermwille, Nicolas Kreibich, Prof. Dr. Hermann E. Ott, Max Schulze-Steinen

Ahead of two rulings from the European Court of Human Rights on #climatechange cases on April 9, the Sabin Center for Climate Change Law evaluates trends in #climatelitigation against governments. This insightful post explains that: - Ambition Gap (between emissions reductions expected from planned policies and those reductions needed to meet Paris Agreement goals) cases will remain a focus - Implementation Gap (between the current trajectory of reductions and pledged/legislated targets) cases are increasingly common; - Integrity Gap (issues with transparency or substance of net zero targets) cases will gain prominence. The Center finds that these successful frameworks against governments have had "a significant impact on government decision-making, forcing governments to develop and implement more ambitious policy responses to climate change.” Certainly lots to stay tuned on here.

CCLR 04/23 | 𝐎𝐮𝐭 𝐍𝐨𝐰! The issue of the Carbon & Climate Law Review is out now. 📝𝐀 𝐬𝐡𝐨𝐫𝐭 𝐨𝐯𝐞𝐫𝐯𝐢𝐞𝐰 𝐨𝐟 𝐰𝐡𝐚𝐭 𝐭𝐨 𝐞𝐱𝐩𝐞𝐜𝐭 𝐢𝐧 𝐭𝐡𝐢𝐬 𝐢𝐬𝐬𝐮𝐞: Through The Desert Towards Fresh Water - Or Just A Fata Morgana? | Wolfgang Obergassel, Christof Arens, Christine Beuermann, Carsten Elsner, Lukas Hermwille, Nico Kreibich, Prof. Dr. Hermann E. Ott E. , Max Schulze-Steinen Decarbonizing International Shipping at the IMO: Are Alternative Fuels The Way Forward? | Joel Ong Public Information and Participation in Climate Decision-Making Process: The Case of the Italian NECP from the Perspective of the Aarhus Convention | Filippo Garelli Removing CO2 from the Atmosphere to Enable Net Negative Emissions – A Behavioural Law and Economics Perspective | Heidi Sydnes Egeland 𝐄𝐝𝐢𝐭𝐨𝐫𝐢𝐚𝐥: Dr. Kate McKenzie 𝐄𝐱𝐩𝐥𝐨𝐫𝐞 𝐦𝐨𝐫𝐞 𝐢𝐧-𝐝𝐞𝐩𝐭𝐡 𝐚𝐫𝐭𝐢𝐜𝐥𝐞𝐬 𝐚𝐧𝐝 𝐝𝐞𝐭𝐚𝐢𝐥𝐞𝐝 𝐥𝐞𝐠𝐚𝐥 𝐚𝐧𝐚𝐥𝐲𝐬𝐢𝐬 𝐢𝐧 𝐭𝐡𝐞 𝐥𝐚𝐭𝐞𝐬𝐭 𝐢𝐬𝐬𝐮𝐞 𝐨𝐟 𝐂𝐂𝐋𝐑 𝐡𝐞𝐫𝐞: https://lnkd.in/ejjM3R8U #Carbon #Climate #Law #NewIssue

CCLR 01/24 | 𝐎𝐮𝐭 𝐍𝐨𝐰! The first issue on Carbon & Climate Law Review edited by Larissa Jane H. Houston, is available now! 📝𝐀 𝐬𝐡𝐨𝐫𝐭 𝐨𝐯𝐞𝐫𝐯𝐢𝐞𝐰 𝐨𝐟 𝐰𝐡𝐚𝐭 𝐭𝐨 𝐞𝐱𝐩𝐞𝐜𝐭 𝐢𝐧 𝐭𝐡𝐢𝐬 𝐢𝐬𝐬𝐮𝐞: • Climate Litigation as a Social Driver Towards Deep Decarbonisation II: Zooming in on Two Cases | Cathrin Zengerling, Jill Bähring, LL.M., CIPP/e, CIPM, FIP, Stefan C. Aykut, Antje Wiener • Moving from Pledges to Commitments: Analysing Climate Transition Plans in the EU Proposal for a Corporate Sustainability Due Diligence Directive | Monika Feigerlovaá • Causality and Attribution Science in Climate Law: Challenges in Establishing Criminal Liability for Greenhouse Gas Emissions | Andrea Sandbrink • Balancing Acts: Navigating Economic Development, Indigenous Empowerment and Climate Protection in Global Governance | Juan Pablo Gómez Moreno 𝐄𝐱𝐩𝐥𝐨𝐫𝐞 𝐦𝐨𝐫𝐞 𝐢𝐧-𝐝𝐞𝐩𝐭𝐡 𝐚𝐫𝐭𝐢𝐜𝐥𝐞𝐬 𝐚𝐧𝐝 𝐝𝐞𝐭𝐚𝐢𝐥𝐞𝐝 𝐥𝐞𝐠𝐚𝐥 𝐚𝐧𝐚𝐥𝐲𝐬𝐢𝐬 𝐢𝐧 𝐭𝐡𝐞 𝐥𝐚𝐭𝐞𝐬𝐭 𝐢𝐬𝐬𝐮𝐞 𝐨𝐟 𝐂𝐂𝐋𝐑 𝐡𝐞𝐫𝐞: https://loom.ly/mUwNIac #Carbon #Climate #Law #NewIssue

📣 A new article on climate transition plans under the #CS3D, which has just completed its legislative process, has been published in the Carbon & Climate Law Review, Volume 18 (2024), Issue 1. 💡 Here's the gist: Climate transition plans are emerging as a new way to engage business in climate action. The idea is to compel companies to change their business models and practices to align with the transition to a sustainable economy, the global temperature targets of the Paris Agreement, and the goals of European climate law. The article undertakes an in-depth analysis of Article 15 of the draft EU Directive on Corporate Sustainability Due Diligence, which introduces a climate transition plan as a legal tool to combat climate change. The paper assesses the legal nature, function, content elements and enforceability of the plan, as well as its relationship with mandatory corporate sustainability due diligence as outlined in the various proposals of the EU institutions available at the time of writing. Many thanks to the Special Issue Editor Larissa-Jane Houston, the reviewers and CCLR at Lexxion Publisher for their support and guidance.

For the first time an international court or tribunal has issued a unanimous advisory opinion on States' obligations to protect and preserve the world's marine environments from climate change. The International Tribunal for the Law of the Sea (ITLOS) found that GHG emissions absorbed by the oceans constitute marine pollution and that States are required to take “ all necessary measures” in line with best available science to reduce their GHG emissions in line with UNCLOS and other relevant international legal obligations, including the Paris Agreement. For more detail see our G+T Knowledge Insight below. And for an interesting discussion, see the upcoming webinar organised by the Centre of International Law on 23 July: https://lnkd.in/guKhWucP

On 21 May 2024, the International Tribunal for the Law of the Sea delivered a highly anticipated Advisory Opinion. This is the first of three advisory opinions on climate change expected to be issued by international and regional courts and tribunals in the coming year. Ilona Millar, Sarah Martin and Lily Morton take us through the key findings, implications for States’ specific obligations and how the Advisory Opinion may impact future climate litigation. https://lnkd.in/gdyDxdGc

📢 Publication announcement: Volume 2 of the CCLR "Special Issue: Climate Law and Litigation - Considerations of Carbon Neutrality, Attribution and Justice." 🌿🌍🏛️ With inputs from a variety of experts in the field of climate law and litigation, this special issue brings together a diverse array of authors with impressive contributions. Because of the extensive amount of contributions received, we have had to split this special issue into 2 volumes, with Volume 1 having just been released. ➡️ To find out more about Volume 2 of the special issue, be sure to read my editorial at: https://lnkd.in/dC3HMUEG. ➡️ Subscribe to the CCLR and read the entire Issue at: https://lnkd.in/dkUsgAxX It has been an absolute privilege to work with Dr. Kate McKenzie and Jakob McKernan on yet another successful volume! Having the opportunity to work as a Guest Editor for Volume 2 of this Special Issue has truly been an amazing and insightful experience. 🙏🏽 Thank you to all of the authors: Stefan C. Aykut, Antje Wiener, Cathrin Zengerling, Jill Bähring, LL.M., CIPP/e, CIPM, FIP,. Monika Feigerlova, Andrea Sandbrink, and Juan Pablo Gómez Moreno. Without your inputs and trust Volume 2 of this special issue would not be possible. It has been an absolute pleasure to work with each and every one of you and to put together a volume that we can truly be proud of. 👏🏽 #climatelaw #specialissue #phdworkshop #climlaw #climatelitigation