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consent, which can be manifest in three ways. The ¬rst way would be for disputing
parties to agree to refer a matter to the Court pursuant to Article 36(1) of its Statute.22
The second way the Court could attain jurisdiction is if under the so-called optional
clause of the Article 36(2) of the ICJ Statute, the respondent State has prospectively
entered a declaration accepting the compulsory jurisdiction of the Court for the kind
of dispute being litigated, and the applicant State has allowed in its own declaration
that, in accordance with the rule of reciprocity, it would itself be subject to the
Court™s jurisdiction were it to be sued in a case of a similar nature.23 Finally, the
third way that the Court could gain jurisdiction, also pursuant to Article 36(1), is if
the parties have speci¬cally provided for dispute resolution before the Court in a
pertinent treaty which is in effect between the parties.24


2.1.2. Referral to the ICJ by Mutual Agreement
It is unlikely that a developed country being challenged by either a developing or
developed country for a claimed failure to deal suf¬ciently with its emissions of
greenhouse gases would agree to have that claim adjudicated by the ICJ. The ICJ
has over time heard many cases under the referral by mutual agreement provision
of Article 36(1).25 However, almost all of them have been in the nature of boundary
disputes where the disputing parties both desired an independent and authoritative
resolution of a thorny political problem.26 In the global warming context, it is quite
unlikely that a targeted State would see itself as having an interest in exposing itself
to a potentially adverse ICJ decision.


2.1.3. Compulsory Jurisdiction under the Optional Clause
The viability, on the other hand, of establishing jurisdiction under Article 36(2)
would depend upon the coincident existence of applicant and respondent parties
who had accepted the compulsory jurisdiction of the ICJ over such a dispute. Of

I.C.J. art. 36(1), Stat. 1031, 1060, T.S. No. 993.
22

Id. at art. 36(2).
23

Id. at art. 36(1).
24

For some representative cases, see Minquiers and Ecrehos (Fr. v. U.K), 1953 I.C.J. 47 (Nov. 17);
25

Sovereignty over Certain Frontier Land (Belg. v. Neth.), 1959 I.C.J. 209 (June 20); North Sea Con-
tinental Shelf (F.R.G. v. Den., F.R.G. v. Neth.), 1969 I.C.J. 3 (Feb. 20); Continental Shelf (Libya v.
Malta), 1984 I.C.J. 3 (Mar. 21); Frontier Dispute (Burk. Faso v. Mali), 1986 I.C.J. 554 (Dec. 22); Land,
Island and Maritime Frontier Dispute (El Sal. v. Hond., Nicar. intervening), 1992 I.C.J. 351 (Sept.
11); Territorial Dispute (Libya v. Chad), 1994 I.C.J. 6 (Feb. 3); Grabˇ ikovo-Nagymaros Project (Hung.
c
v. Slovk.), 1997 I.C.J. 7 (Sept. 25); Kasikili/Sedudu Island (Bots. v. Namib.), 1999 I.C.J. 1045 (Dec.
13); Pulau Ligitan and Pulua Sipadan (Indon. v. Malay.), 2002 I.C.J. 625 (Dec. 17); Frontier Dispute
(Benin v. Niger), 2005 I.C.J. 90 (July 12); Territorial and Maritime Dispute Between Nicaragua and
Honduras in the Caribbean Sea, 2007 I.C.J. (Oct. 8).
For reference to the prevalence of land and sea delimitation cases, see Terry D. Gill, Rosenne™s
26

The World Court: What It Is and How It Works (2003). See also Todd L. Allee & Paul K. Huth,
Legitimizing Dispute Settlement: International Legal Rulings as Domestic Political Cover, 100 Am.
Pol. Sci. Rev. 219, 220“21, 229“32 (2006) (discussing the domestic political advantages of referring
bilateral disputes to the ICJ).
Climate Change Litigation 341


the category of unambiguously developed countries, only two, the United States and
Australia, refused timely rati¬cation of the Kyoto Protocol. Australia, however, has
now rati¬ed the Protocol, leaving the United States as the sole remaining holdout.
And with the Obama administration now in of¬ce, the United States is poised to
play a meaningful role in negotiating the post-Kyoto regime.27
Among the more economically signi¬cant countries that are not party to the
Kyoto Protocol, Turkey also has neither signed nor rati¬ed the agreement to reduce
its greenhouse gas emissions. Other countries that are not party to the Kyoto Protocol
include Afghanistan, Andorra, Brunei, Central African Republic, Chad, Comoros,
Iraq, Kazakhstan, Saint Kitts and Nevis, San Marino, S˜ o Tom´ and Principe,
a e
Somalia, Tajikistan, Timor-Leste, Tonga, and Zimbabwe. Among the nonmember
countries, only Somalia has acceded to the compulsory jurisdiction of the ICJ.28
Somalia, one of the least developed countries in the world, is in political turmoil
and is, in any event, a very low emitter of greenhouse gases. Of the countries that have
acceded to the Kyoto Protocol, the most likely targets of an international liability
claim would be those whose compliance with that agreement is in question. The
primary requirement the Protocol imposes is that the developed country members
(Annex 1 Countries) make reductions in their greenhouse gas emissions during the
period 2008“2012,29 and that by 2005 they have made demonstrable progress toward
this commitment.30 In addition, all of the parties to the Kyoto Protocol are also
parties to the master agreement, the UNFCCC, which requires more broadly in
Article 4.2(a) that the developed countries take measures to mitigate climate change
by limiting their anthropogenic emissions of greenhouse gases.31


Rudd Takes Australia Inside Kyoto, BBC, Dec. 3, 2007, available at http://news.bbc.co.uk/2/hi/asia-
27

paci¬c/7124236.stm.
The United States, the only unambiguously developed country not to have now acceded to the
28

Kyoto Protocol, has withdrawn from the compulsory jurisdiction of the ICJ. See infra note 45 and
accompanying text.
Protocol to the United Nations Framework Convention on Climate Change (UNFCCC), art. 3, Dec.
29

11, 1997, 27 I.L.M. 32 (1998), available at http://unfccc.int/resource/docs/convkp/kpeng.pdf [hereinafter
Kyoto Protocol].
Id. at art 3.
30

United Nations Framework Convention on Climate Change, art. 4.2(a), May 9, 1992, 1771 U.N.T.S.
31

Article 4.2(a) in its entirety reads as follows:
The developed country and other Parties included in Annex I commit themselves speci¬cally
as provided for in the following:
(a) Each of these Parties shall adopt national policies and take corresponding measures
on the mitigation of climate change, by limiting its anthropogenic emissions of green-
house gases and protecting and enhancing its greenhouse gas sinks and reservoirs. These
policies and measures will demonstrate that developed countries are taking the lead in
modifying longer-term trends in anthropogenic emissions consistent with the objective
of the Convention, recognizing that the return by the present decade to earlier levels of
anthropogenic emissions of carbon dioxide and other greenhouse gases not controlled by
the Montreal Protocol would contribute to such modi¬cation, and taking into account
the differences in these Parties™ starting points and approaches, economic structures and
resource bases, the need to maintain strong and sustainable economic growth, available
technologies and other individual circumstances, as well as the need for equitable and
Andrew Strauss
342


Among the clearly developed Annex 1 countries that appear most on track to meet
their 2008“2012 Kyoto reduction commitments are Britain, Sweden, and Iceland.32
Of the three, Britain and Sweden have acceded to the ICJ Article 36 optional clause.
Austria, Belgium, Denmark, Ireland, Italy, Liechtenstein, Norway, Portugal, Spain,33
Canada,34 and New Zealand35 are among the countries least on track for meeting
their 2008“2012 Kyoto reduction commitments and are, therefore, arguably not in
compliance with the Kyoto requirements and, more generally, with Article 4.2(a)
of the UNFCCC.36 All of these countries except Ireland and Italy have acceded to
the optional clause of the ICJ. Complicating ICJ jurisdiction over them, however,
is the fact that the Kyoto Protocol has its own dispute resolution provisions. Article
19 of the Protocol incorporates by reference mutatis mutandis Article 14 of the
UNFCCC, which provides ¬rst under paragraph 1 that parties can jointly seek
settlement of their dispute “though negotiation or any other peaceful means of their
own choice.”37 Alternatively, Article 14, Paragraph 2, provides that a complaining
party can unilaterally refer a UNFCCC or Protocol dispute to the ICJ or to binding
arbitration, providing that each of the parties has entered a prospective declaration
accepting the respective forum for the type of dispute in question. If there is no
unilateral referral under Paragraph 2, and if the parties are unable to resolve their
dispute within twelve months under Paragraph 1, any party to the dispute can submit
it to conciliation by a commission established pursuant to the UNFCCC.38


appropriate contributions by each of these Parties to the global effort regarding that objec-
tive. These Parties may implement such policies and measures jointly with other Parties
and may assist other Parties in contributing to the achievement of the objective of the
Convention and, in particular, that of this subparagraph. Id.
See European Environment Agency, Greenhouse Gas Emissions Trends and Projections
32

in Europe (2006), available at http://reports.eea.europa.eu/eea_report_2006_9/en/eea_report_9_
2006.pdf.
European Environment Agency, E.U. Must Take Immediate Action on Kyoto Targets (2006), available
33

at http://www.eea.europa.eu/pressroom/newsreleases/ghgtrends2006-en.
Ian Austin, Canada Announces Goals for Reducing Emissions, N.Y. Times, Apr. 27, 2007, at C7.
34

NZ Greenhouse Gases Keep Rising, N.Z. Press Ass™n, May 4, 2007.
35

Complicating a legal action against Austria, Belgium, Denmark, Ireland Italy, Portugal, Spain or
36

any of the ¬fteen European countries that were members of the European Union at the time the
Kyoto Protocol was negotiated is that pursuant to Article 4 of the Protocol those ¬fteen countries
can ful¬l their mutual reduction commitments in an aggregate way. The European Environmental
Agency maintained that as of late 2008 those countries were on track to meeting their collective
commitments. See European Environmental Agency, EU-15 on Target for Kyoto, Despite Mixed
Performances (2008), available at http://www.eea.europa.eu/pressroom/newsreleases/eu-15-on-target-
for-kyoto-despite-mixed-performances. Because of Australia™s late rati¬cation of the Kyoto Protocol at
the end of 2007, it only committed to stabilizing greenhouse gases at 108% of 1990 levels by 2012.
Even meeting this modi¬ed target, however, will be dif¬cult. See Rosslyn Beeby, Push for Quicker
Green Target, Canberra Times, Feb. 15, 2008, at A15. Japan™s compliance is also questionable, but
that country is making very signi¬cant efforts. See Shigeru Sato and Yuji Okada, Japan Utilities to
Buy Carbon Credits: Steel Makers Also Push to Cut Greenhouse Gases in Nation, Int™l Herald Trib.,
Oct. 12, 2007, at 19. Both Australia and Japan have acceded to the optional clause of the ICJ.
United Nations Framework Convention on Climate Change, art. 14.1, May 9, 1992, 1771 U.N.T.S.
37

Id. at art. 14.6.
38
Climate Change Litigation 343


To date, no country has opted into binding jurisdiction before the ICJ under
Article 14 and neither arbitration nor conciliation procedures called for by the
UNFCCC have been established. The failure of countries to enter UNFCCC
Article 14 declarations granting the ICJ jurisdiction over matters speci¬cally under
the climate change regime should not preclude the Court from adjudicating climate
change claims pursuant to those countries™ general acceptance of ICJ Article 36
optional clause jurisdiction. States only need consent to the jurisdiction of the
Court once, and disputes over treaty interpretation are among the con¬‚icts that the
ICJ is empowered to adjudicate under Article 36.39
There is, however, a problem. All of the nine countries that have accepted the
compulsory jurisdiction of the ICJ under Article 36 “ except for Denmark, Liecht-
enstein, and Norway “ have entered reservations to their acceptances excepting
disputes which the parties agree to settle by other means of peaceful settlement.40
While the system envisioned in Article 14 would seem to constitute other means of
peaceful settlement, the fact that no party has opted into Article 14 ICJ jurisdiction,
and that neither the procedures for arbitration nor conciliation called for by Article
14 have ever been adopted by the parties, could be interpreted to mean there is, in
fact, no ¬nal or implementable agreement providing for an other means of peaceful
settlement under the parties™ reservations.41
In addition, arguably the fact that the parties to a dispute had previously opted
into the optional clause of Article 36 makes settlement by the ICJ an “other peaceful
means of [the parties™] own choice” under Paragraph 1 of Article 14, and for parties
to have opted into ICJ jurisdiction under Paragraph 2 would have been redundant.
It would be harder to make this claim if the mechanisms for arbitration were ever
to be established and contesting parties were to have declared their acceptance of
arbitration. Of course, the relatively short twelve-month time period envisioned in
Paragraph 5 for a party to submit the dispute to conciliation if the parties have not
been able to “settle their dispute” would not seem to contemplate the more lengthy
process of the ICJ.42

I.C.J. art. 36(2) (a), Stat. 1031, 1060, T.S. No. 993
39

For example, the reservation in Austria™s declaration reads as follows: “This Declaration does not apply
40

to any dispute in respect of which the parties thereto have agreed or shall agree to have recourse to other
means of peaceful settlement for its ¬nal and binding decision.” Arguably neither negotiation under
Article 14.1 nor conciliation under Article 14.6 would constitute “a ¬nal and binding decision.” The
Canadian formulation, on the other hand, reserves from its acceptance of compulsory jurisdiction, “dis-
putes in regard to which the parties have agreed or shall agree to have recourse to some other method
of peaceful settlement.” For the complete collection of Article 36 declarations accepting the binding
jurisdiction of the ICJ, see The International Court of Justice, Declarations Recognizing the Jurisdiction
of the Court as Compulsory, http://www.icj-cij.org/jurisdiction/index/php?p1=5&p2=1&p3=3.
Supporting such a restrictive reading of a settlement by other peaceful means reservation as not divesting
41

the predecessor court to the ICJ of jurisdiction despite a later dispute resolution agreement between
the parties, see Electricity Co. of So¬a and Bulgaria, Judgment, 1939 PCIJ (ser.A/B) No. 77, at 62.
For further discussion of the meaning of settlement by other peaceful means reservations, see Bernard
Oxman, Complementary Agreements and Compulsory Jurisdiction, 95 Am. J. Int™l L. 277 (2001).
One additional argument a party attempting to use an other means of peaceful settlement clause
42

to divest the ICJ of jurisdiction might make is that Article 18 of the Kyoto Protocol constitutes an
Andrew Strauss
344


My general conclusion is that a persuasive case could be made that the ICJ could
assert jurisdiction over disputes under the UNFCCC and the Protocol if they involve
countries that have opted into the binding jurisdiction of that Court regardless of
whether they have done so subject to an other means of peaceful settlement provision.
At the end of the day, however, whether the ICJ can assert jurisdiction under the
UNFCCC and the Protocol may not be relevant to the larger question of whether it
can assert jurisdiction in a climate change case generally. This is because countries
attempting to formulate climate change claims so as to achieve maximum impact
in an ICJ proceeding would be unlikely to conceptualize them as solely a question
of compliance with the UNFCCC and the Kyoto Protocol even if they and their
adversaries were party to these agreements.43 As I discuss in Section 3 of this chapter,
other norms of international law may also be relevant as well, and to the extent
that a climate change action is framed as a broader question of State responsibility
for environmental harm under international law, the dispute resolution provisions
of speci¬c treaties would most likely not be directly applicable.44 After all, the
UNFCCC and the Kyoto Protocol do not de¬nitively settle the question of who


other means of peaceful settlement. Article 18 directs the parties to “approve appropriate and effective
procedures and mechanisms to determine and to address cases of non-compliance with the provisions
of [the] protocol.” Kyoto Protocol, supra note 29, at art. 18. Unlike the dispute resolution provisions
of Kyoto Article 19 and UNFCCC Article 14, the parties have taken action to create the compliance
mechanisms called for by Article 18. Because Article 18 does not provide for parties to resolve disputes
between each other, however, it can more accurately be characterized as a provision dealing with
enforcement rather than dispute settlement of the sort envisioned by the declarations.
This is likely as 170 states have now rati¬ed the Kyoto Protocol. See Kyoto Protocol Status
43

of Rati¬cation, available at http://unfccc.int/¬les/kyoto_protocol/background/status_of_rati¬cation/
application/pdf/kp_rati¬cation.pdf.
The issues involving the relationship between the Framework Convention on Climate Change and
44

the Kyoto Protocol and other international legal obligations is a complex one involving the relation-
ship between these speci¬c international agreements and more general principles of international law,
including customary international law. See generally Dinah Shelton, Normative Hierarchy in Inter-
national Law, 100 Am. J. Int™l. L. 291 (2006). For a discussion of the implications of the relationship
between treaty law and customary international law in the ICJ™s assertion of compulsory jurisdiction in
the Nicaragua case, see Monroe Leigh, Military and Paramilitary Activities in and Against Nicaragua,
81 Am. J. Int™l L. 206 (1987).
Complicating a comprehensive determination by the ICJ of the extent to which under treaty and
customary law a state party to the Kyoto Protocol may be derelict in its obligation to help remedy
the global warming problem is that the Kyoto Protocol provides for a variety of ¬nancial mechanisms
that states can pay into as an alternative to reducing greenhouse gas emissions. Under Article 6 of the
Protocol, countries that fail to meet their domestic emissions reduction commitments may contribute
¬nancially to the reduction of emissions in other Annex 1 countries, or alternatively, they may buy
the right to exceed their own emissions quotas in the form of “emissions reductions units” from
other Annex 1 countries who reduce their own emissions by more than their commitments require.
Kyoto Protocol, supra note 29, at art. 6. Also under the Clean Development Mechanism of Article 12,
Annex 1 countries can compensate for exceeding their commitments by funding offsetting projects in
developing countries. Id. at art. 12. Finally, pursuant to Article 18 of the Protocol, the parties determined
that countries that fail to comply with the Kyoto Protocol will be assigned an amount from the second
commitment period of a number of tons equal to 1.3 times the amount in tons of excess emissions.
Id. at art. 18. It is unclear how the ICJ might factor in such a penalty to the overall obligations that a
country might have under international law.
Climate Change Litigation 345


should bear the considerable cost of global warming which will persist even if the
UNFCCC, and the Kyoto Protocol are fully complied with.


2.1.4. Jurisdiction by Way of Independent Treaty
The ICJ can also take jurisdiction under Article 36 if the parties to the litigation
have agreed to an independent treaty with a dispute resolution clause specifying
settlement before the ICJ. The dif¬culty for the purposes of this chapter is to ¬nd
such a clause in a treaty whose subject matter arguably covers global warming. In
my 2003 Environmental Law Reporter article, I speci¬cally examined ICJ dispute
resolution clauses in independent treaties that might provide for jurisdiction over
the United States. Although many countries have entered into treaties with such
clauses, the United States makes for the most logical focus of this study as it has
rescinded its acceptance of ICJ compulsory jurisdiction.45 In addition, it continues
to be the world™s largest per capita emitter of greenhouse gases, and during the Bush
administration it refused to ratify the Kyoto Protocol.
In my research, I found that the United States has entered into many Friendship,
Commerce, and Navigation (FCN) or other similar treaties. These are general
agreements that provide that parties treat each other™s citizens as favorably as they treat
their own citizens in commercial transactions. Because I thought these agreements
might contain generally worded obligations in the nature of good faith between
the parties, I looked into FCN treaties and other similar agreements between the
United States and coastal and island States46 that provided for dispute resolution
before the ICJ. Typical of the most relevant language to be found in these treaties
is the passage from the United States™ agreement with Greece: “Each Party shall at
all times accord equitable treatment to the persons, property, enterprises and other
interests of nationals and companies of the other Party.”47
Other similarly situated coastal nations with which the United States has
such agreements containing roughly the equivalent language and binding dispute
resolution before the ICJ are Thailand,48 the Netherlands,49 Korea,50 Denmark,51
The United States, in response to the ICJ™s determination to assert jurisdiction over it in the Nicaragua
45

case in 1986, withdrew its acceptance of the court™s compulsory jurisdiction. Military and Parliamentary
Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27).
As mentioned in Section 2.1.1, island and coastal States are thought to be particularly vulnerable to
46

the ill effects of global warming because of rising sea levels and severe coastal weather. See supra note
17 and accompanying text.
Treaty of Friendship, Commerce and Navigation between the United States and the Kingdom of
47

Greece, Aug. 3, 1951, U.S.-Greece, art. I, 5 U.S.T. 1829, 1835.
Treaty of Amity and Economic Relations between the United States of America and the Kingdom of
48

Thailand, May 29, 1966, U.S.-Thail., art. XIII, para. 2, 19 U.S.T. 5843, 5859.
Treaty of Friendship, Commerce and Navigation between the United States of America and the
49

Kingdom of the Netherlands, Mar. 27, 1956, U.S.-Neth., art. XX25, para. 2, 8 U.S.T. 2043, 2083.
Treaty of Friendship, Commerce and Navigation between the United States of America and the
50

Republic of Korea, Nov. 28, 1956, U.S.-S. Korea, art. XXIV, para. 2, 8 U.S.T. 2217, 2227.
Treaty of Friendship, Commerce and Navigation between the United States of America and the
51

Kingdom of Denmark, Oct. 1, 1951, U.S.-Den., art. XXIV, para. 2, 12 U.S.T. 908, 923.
Andrew Strauss
346


and Ireland.52 Ethiopia, although no longer a coastal State, in its Treaty of Amity
and Economic Relations with the United States has particularly promising language:
“There shall be constant peace and ¬rm and lasting friendship between the United
States of America and Ethiopia,”53 and “The two High Contracting Parties reiterate
their intent to further the purposes of the United Nations.”54 I could ¬nd no such
treaties containing provisions providing for binding dispute resolution before the
ICJ with small island nations.
The previously mentioned treaties attempt generally to prescribe how each party
within its own country should treat the other country™s nationals and their property.
U.S. greenhouse gas emissions arguably harm foreign nationals and their property
within their own countries. It is, of course, possible to argue something along the lines
that while the parties may not have speci¬cally contemplated such an application of
these treaties, to the extent that they are meant to prescribe against harm to foreign
interests inside American jurisdiction, then certainly they cannot have meant to allow
a fundamentally more egregious extension of harm by the United States extending
outside of its own boundaries.
The ICJ has had the opportunity to rule in a different substantive context on a
similar attempt to construe a FCN treaty to provide a basis for jurisdiction in the
preliminary phase of The Case Concerning Oil Platforms (Islamic Republic of Iran
v. United States).55 In that case, Iran petitioned the ICJ to accept jurisdiction over
a dispute involving the destruction by the U.S. Navy of three Iranian oil complexes
during the Iran-Iraq War. The basis for Iran™s claim that the Court had jurisdiction
was found in the clause allowing for dispute resolution by the ICJ under the United
States/Iran FCN treaty, the Treaty of Amity, Economic Relations and Consular
Rights.56 Iran argued that several general treaty provisions of the sort that I have
identi¬ed were violated by the United States military action. The Court, in ¬nding
that it had jurisdiction, accepted the position that the FCN treaty had extraterritorial
application. For example, the Court construed the requirement that a Party accord
the other Party™s nationals fair and equitable treatment as not applying solely within
its territory. The decision is, however, somewhat more quali¬ed in its acceptance of
the sort of broad interpretation of language that would be helpful in a global warming
case.57 For example, it read the requirement of fair and equitable treatment as not
including the protection of a party™s nationals from military actions by the other
party. The Court, on the other hand, decided that military activities which destroy

Treaty of Friendship, Commerce and Navigation between the United States of America and Ireland,
52

Jan. 21, 1950, U.S.-Ir., art. XXIII, 1 U.S.T. 785, 795.
Treaty of Amity and Economic Relations between the United States of America and Ethiopia, Sept.
53

7, 1951, U.S.-Eth., art VIII, para. 1, 4 U.S.T. 2134, 2141.
Treaty of Amity and Economic Relations between the United States of America and Ethiopia, Sept.
54

7, 1951, U.S.-Eth., art. I, para. 2, 4 U.S.T. 2134, 2136.
Concerning Oil Platforms (Iran v. U.S.), 1996 I.C.J. 803.
55

Treaty of Amity, Economic Relations, and Consular Rights, Aug. 15, 1955, U.S.-Iran, 8 U.S.T. 899,
56

901.
Concerning Oil Platforms, 1996 I.C.J. at 814.
57
Climate Change Litigation 347


or impede the transportation or storage of exports implicate the treaty™s requirement
that the parties uphold freedom of commerce between their territories.58 This raises
the question of whether such general language could be violated to the extent that
a country™s contribution to global warming can be shown to affect negatively an
FCN treaty partner™s ability to engage in commerce (say by indirectly damaging its
economy or directly ¬‚ooding a port city).
Similarly, in the Nicaragua case against the United States, referred to earlier, the
Court also accepted jurisdiction based in part on a binding ICJ dispute resolution
provision in an FCN treaty in force between the parties.59 In that case, as in the Iran
case, military activities arguably more directly impacted upon speci¬c provisions of
the treaty than would global warming. Ultimately, then, the jurisdictional question in
applying FCN treaties to global warming cases would be whether treaties negotiated
in the context of protecting the mutual commercial interests of countries™ citizens
can be construed to protect them from harm caused by global warming. The Oil
Platforms and Nicaragua cases give reason to believe that such a construction by the
ICJ is possible.


2.1.5. Other Procedural and Substantive Issues
In addition to jurisdictional issues, there are other very signi¬cant procedural hurdles
in contentious (nonadvisory) cases that would have to be overcome before a global
warming suit could proceed to the merits of the case. Most signi¬cant would be the
issue of standing, whether applicants have a suf¬ciently individualizable interest in
litigation as to be able to bring the suit. Alternatively, it could be demonstrated that
countries™ obligations not to cause serious harm through the emissions of greenhouse
gases is an obligation erga omnes (i.e., that such obligation is suf¬ciently important
that all States have a legal interest in its enforcement).
Assuming that a tribunal in a global warming lawsuit would accept the scienti¬c
consensus that human-created greenhouse gases are a major contributor to global
warming, other signi¬cant proof problems would remain in bringing such a suit.
A connection would need to be drawn between global warming and speci¬c envi-
ronmental effects.60 In addition, both assessing prospective damages from global
warming and apportioning the extent to which they are attributable to any speci¬c
Concerning Oil Platforms, 1996 I.C.J. at 819“20.
58

Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 116, 136.
59

As the science of global warming rapidly develops, such connections are becoming easier to establish
60

with reasonable scienti¬c certainty. The highly credible United Nations Intergovernmental Panel on
Climate Change, for example, concluded with “very high con¬dence” in its 4th Assessment Report
that there is warming of lakes and rivers in many regions with effects on water quality and that global
warming is causing earlier timing of spring events such as leaf-unfolding, bird migration and egg-laying
and poleward shifts in ranges on plant and animal species. It additionally concluded with “high con-
¬dence” that changes in snow, ice, and frozen ground are increasing ground instability in permafrost
regions and rock avalanches in mountain regions and that rising ocean and fresh water temperatures
are causing changes in the ice cover, salinity, oxygen levels, and circulation including changes in
algal, plankton, and ¬sh abundance in high altitude oceans. See Intergovernmental Panel on Climate
Andrew Strauss
348


country would be challenging and perhaps could render a case infeasible. The law
in this area is not unique to global warming,61 and it is beyond the scope of this
chapter to speci¬cally review it. I only note these considerations here as factors to
which careful consideration would have to be given in conceiving a contentious
global warming case before the International Court of Justice.


2.2. Advisory Opinions
There is another possible avenue that would facilitate an ICJ decision on the legal
responsibility of countries to participate meaningfully in the remediation of the
global warming problem, but that does not require that the Court have the ability
to assert jurisdiction over any speci¬c countries. Pursuant to Article 65 of the ICJ™s
Statute, the Court is empowered “to give an advisory opinion on any legal question
at the request of whatever body may be authorized by or in accordance with the
Charter of the United Nations [U.N.] to make such a request.”62 Article 96 of the
Charter of the U.N. provides that “[t]he General Assembly or the Security Council
may request the [ICJ] to give an advisory opinion on any legal question,”63 and that
“[o]ther organs of the [U.N.] and specialized agencies, which may at any time be
so authorized by the General Assembly, may also request advisory opinions of the
Court on legal questions arising within the scope of their activities.”64
Pursuing an advisory opinion was the path followed by the civil society“led ini-
tiative to get the ICJ to rule on the legality of nuclear weapons in the 1990s. In that
case, both the General Assembly as well as the World Health Organization (WHO)
requested an advisory opinion.65 The Court recognized that the General Assembly

Change (IPCC), Working Group II, Climate Change 2007: Impacts, Adaptation and Vulnerabil-
ity, Summary for Policymakers 1“3 (2007), available at http://www.ipc.ch (last visited Feb. 27, 2008).
In addition, courts themselves seem increasingly receptive of such conclusions. In determining
that the state of Massachusetts claimed suf¬cient injury for standing to bring suit in Massachusetts v.
EPA, the U.S. Supreme Court observed that:
The harms associated with climate change are serious and well recognized. Indeed, the
[National Research Council Report] itself “ which EPA regards as an “objective and inde-
pendent assessment of the relevant science,” identi¬es a number of environmental changes
that have already in¬‚icted signi¬cant harms, including “the global retreat of mountain glaciers,
reduction in snow-cover extent, the earlier spring melting of rivers and lakes [and] the acceler-
ated rate of rise of sea levels during the 20th century relative to the past few thousand years . . . ”
Massachusetts v. EPA, 549 U.S. 497, 521 (Apr. 2, 2007) (citations omitted).
See, e.g., Summers v. Tice, 199 P.2d 1 (Cal. 1948) (where two hunters negligently ¬red their shotguns
61

in the direction of the plaintiff on a hunting trip, the burden of proof is on the defendant to absolve
herself of liability); Sindell v. Abbott Labs., 607 P.2d 924 (Cal. 1980) (where almost 200 manufacturers
produced DES, a toxic compound that caused the plaintiffs™ cancer, the court held each defendant
liable for the proportion of the judgment represented by its share of the market).
I.C.J., art. 65, 59 Stat. 1031, 1063, T.S. No. 993.
62

Charter of the United Nations, effective Oct. 24, 1945, art. 96(1), 59 Stat. 1031, 1052, T.S. No. 993.
63

Id. at art. 96(2).
64

The WHO was authorized by the General Assembly to request advisory opinion from the ICJ pursuant
65

to the agreement governing its relationship to the United Nations. See Agreement Between the United
Climate Change Litigation 349


could request an advisory judgment in the matter, but it ruled against the WHO.66
It explained that the WHO was authorized to “deal with the effects on health of
the use of Nuclear Weapons, or of any hazardous activity, and to take preventative
measures aimed at protecting the health of populations in the event of such weapons
being used or such activities engaged in.”67 The Court concluded, however, that,
“[w]hatever those effects might be, the competence of the WHO to deal with them
is not dependent on the legality of the acts that caused them.”68
The Court is not technically bound by prior decisions,69 but as a practical matter,
it does tend to follow them, and the global warming case would seem to be very
similar. Perhaps it could be distinguished because of the WHO™s need to be involved
in ongoing strategies for adapting to global warming as it relates to public health.
Given global warming™s likely effect on agriculture, the other potential candidate
to request an advisory opinion would be the Food and Agricultural Organization
(FAO) in Rome,70 but it would likely face the same problem as the WHO.
The Security Council, especially given the ability of any one of its permanent ¬ve
members to cast a veto, would not be likely to authorize a request for an advisory
opinion. The General Assembly would seem to be more promising. Pursuant to
Article 18 of the U.N. Charter, “important” questions require a two-third™s majority
of the General Assembly.71 The ICJ, however, agreed to render an opinion in the
nuclear weapons case with only a majority (of less than two thirds) voting in favor.
Even this lower threshold could, however, be dif¬cult to achieve. Unlike the nuclear
weapons case where only a handful of countries actually had nuclear weapons, many
countries are signi¬cant emitters of greenhouse gases. Depending on how narrowly
the question presented to the ICJ could be framed, these countries might well be
reluctant to charge the ICJ with coming to a determination that could implicate the
legality of their own emissions.
One disadvantage of the advisory approach is that in terms of publicity value
(which is helpful for achieving the bene¬ts I refer to in Section 1 of this chapter)
identi¬able applicants and respondents in contentious cases might better capture
the public imagination than would a simple statement of the law in an advisory
case. Recommending the advisory approach, however, is its simplicity. It requires
no imaginative theories of jurisdiction, and it avoids singling out countries simply


Nations and the World Health Organization, adopted by the First World Health Assembly, 10 Jul.
1948, art. X.
Legality on the Threat or Use of Nuclear Weapons (United Nations), 1996 I.C.J. 226, 235.
66

Id.
67

Id.
68

I.C.J., art. 59, 59 Stat. 1031, 1063, T.S. No. 993.
69

The FAO has also been authorized by the General Assembly to request advisory opinions from the
70

ICJ pursuant to the FAO™s agreement governing its relationship to the United Nations. See Agreement
between the United Nations and the Food and Agricultural Organization of the United Nations. Feb.
1947, art. IX. Para. 2.
Charter of the United Nations, art. 18, para. 3, provides that “[d]ecisions on other questions . . . shall
71

be made by a majority of the members present and voting.” Id.
Andrew Strauss
350


because they are subject to the jurisdiction of the Court. Ultimately, it has the
advantage of articulating a clear legal standard equally applicable to all states.


3. A BRIEF LOOK AT THE LAW THE ICJ WOULD APPLY

With the exception of the UNFCCC and its Kyoto Protocol, the international com-
munity has not developed speci¬c treaties to deal explicitly with the normative
dimensions of the global warming problem. Asked to decide comprehensively upon
the responsibility of States to ameliorate global warming, the Court would also look
to other international treaties of a more general nature, customary norms of inter-
national law, and general principles of international law.72 To help ascertain the
content of the relevant principles of customary international law and general princi-
ples of law, the ICJ would refer to such secondary materials as general restatements
and codi¬cations of the law as well as nonbinding judicial precedents from various
tribunals. It would also look to multilateral declarations of States.73 It is beyond
the scope of this chapter to review speci¬c conceptions of how these sources and
materials interact to create a coherent body of international law or to construct a
theory of state responsibility for global warming emissions. What follows, rather, is
an overview of the basic building blocks for the construction of such a theory.


3.1. General Restatements and Codi¬cations of the Law
Because much of international law is derived from customary international law
and general principles of law, the norms as they develop in the messy world of
politics and statecraft often lack the clear precision of treaties or domestic statutes.
For this reason, those working within the international system rely relatively heavily
on various restatements and codi¬cations of the law that attempt to give clarity to
areas where international law is amorphous. Of particular relevance to ascertaining
the responsibility of States for global warming is the law on State responsibility
for transboundary harm and transboundary pollution in general. Arguably global
warming, which is caused by gases released mostly within the various countries
causing the whole of the planetary climate system to warm, is not exactly the same
as pollutants released in one country causing direct transboundary harm in another.
The central legal principles that are pertinent to State responsibility for causing
environmental harm outside their own borders are relevant, however, to considering
the problem of global warming.
Ultimately, the principle behind holding countries liable for transboundary pollu-
tion is drawn from one of the most basic precepts of all legal systems that legal actors
should be responsible for the harm that they do to others. Several expert bodies,74

I.C.J., art. 38, 59 Stat. 1031, 1063, T.S. No. 993.
72

Id.
73

The views of these bodies on international law generally tend to be fairly subjective, and the relative
74

weight which a court should accord the opinions of these bodies when they differ is not well de¬ned.
Climate Change Litigation 351


of¬cial and unof¬cial, have proclaimed their own international environmental law
variations on this precept.
One relevant pronouncement comes from the American Law Institute (ALI) in
its Restatement (Third) of the Foreign Relations Law of the United States. The ALI
is composed of eminent lawyers, judges, and law professors in the United States, and
its restatements are considered by courts and legal professionals within the United
States to be the most authoritative unof¬cial reporters of the applicable law in areas
where clear statutory guidance tends to be lacking. The relevant provisions from
Section 601, State Obligations with Respect to Environment of Other States and the
Common Environment, are potentially helpful in the context of climate change.
They assert that:

(1) A state is obligated to take such measures as may be necessary, to the extent
practicable under the circumstances, to ensure that activities within its juris-
diction or control
(a) conform to generally accepted international rules and standards for the pre-
vention, reduction and control of injury to the environment of another state
or of areas beyond the limits of national jurisdiction; and
(b) are conducted so as not to cause signi¬cant injury to the environment of
another state or of areas beyond the limits of national jurisdiction.75

A frequently cited similar, although arguably slightly stronger, statement of the
law can be found in Article 3 of the International Law Association™s Rules on
International Law Applicable to Transfrontier Pollution.76 The International Law
Association is a private expert body.
The most authoritative international body of expert reporters is the U.N.™s Inter-
national Law Commission. Established by the General Assembly pursuant to the
U.N. Charter, the members of the Commission, international lawyers who serve in
their individual capacities, attempt to both codify and “progressively develop” inter-
national law. Some of the International Law Commission™s works are adopted by the
General Assembly as declarations and some eventually become treaties. Over many
years, the International Law Commission has been heavily involved in attempt-
ing to de¬ne the law of State responsibility. Probably most relevant is its work on
recently adopted International Liability for Injurious Consequences Arising out of
Acts Not Prohibited by International Law (Prevention of Transboundary Damage
from Hazardous Activities), which according to its terms applies “to activities not pro-
hibited by international law which involve a risk of causing signi¬cant transboundary
harm through their physical consequences.”77 Its language requires States to “take
appropriate measures to prevent signi¬cant transboundary harm or at any event to

Restatement (Third) of Foreign Relations Law § 601(1) (1986).
75

Montreal Rules of International Law Applicable to Transfrontier Pollution, art. 3(1), Int™l Law Assn.,
76

Rep. 60th Conf., at 1“3 (1982).
Draft Articles on the Prevention of Transboundary Damage from Hazardous Activities, International
77

Law Commission, 53rd Sess., Supp. No. 10, ch. V.E. 1, art. I, U.N. Doc. A/56/10 (2001).
Andrew Strauss
352


minimize the risk thereof” and to “cooperate in good faith and, as necessary, seek
the assistance of one or more competent international organizations in preventing
signi¬cant transboundary harm or at any event in minimizing the risk thereof.”78
Other works by the Commission may also be relevant.


3.2. Precedent
The Trail Smelter arbitration79 decision is generally considered to be the lead case
in the area of State liability for transboundary pollution. The dispute resulted from
injuries caused in the U.S. state of Washington from sulfur dioxide discharged by
a smelter plant in British Columbia, Canada, in the 1930s. Following diplomatic
protests by the United States, the two countries agreed to submit the matter to arbi-
tration. In its decision, the arbitrator proclaimed a general principle of international
law that would be very helpful to establishing State liability for greenhouse gas emis-
sions. Citing a well-known treatise of the day,80 the arbitrator stated that “[a] State
owes at all times a duty to protect other States against injurious acts by individuals
from within its jurisdiction,”81 and later in the decision he went on to add that

[n]o state has the right to use or permit the use of its territory in such a manner as
to cause injury by fumes in or to the territory of another or the properties or persons
therein, when the case is of serious consequences and the injury is established by
clear and convincing evidence.82

State actions in more recent and well-known cases would not be as helpful in
demonstrating the pervasive present-day acceptance of a principle of State liability
for transboundary pollution. Most important is the Chernobyl nuclear accident,
where the Ukraine refused to acknowledge liability and, in fact, the international
community paid for the costs of decommissioning the reactors.83 Also unhelpful is
the Sandoz Chemical Fire case, which involved a ¬re at a Sandoz corporation ware-
house in Switzerland. The ¬re resulted in thousands of cubic meters of chemically
contaminated water seeping into the Rhine and constituted one of the worst environ-
mental disasters ever in Western Europe. None of the States affected brought claims
against Switzerland.84 Finally, in the 1997“1998 Asian Haze case, a thick smoky haze
caused by ¬res used to clear forests in the Indonesian provinces of Kalimantan and

Id.
78

Trail Smelter (U.S. v. Can.), 3 R.I.A.A. 1938, 1965 (Mar. 11, 1941).
79

Clyde Eagleton, Responsibility of States in International Law (1928).
80

Trail Smelter, supra note 79 at 79.
81

Id. at 90.
82

See Margaret Cocker, Chernobyl™s No. 4 Reactor Remains Crumbling Threat, Mismanagement Snarls
83

the Multibillion-Dollar Cleanup Effort in Ukraine, Atlanta J. & Const., Apr. 23, 2000 (discussing the
Ukraine™s use of the disaster as leverage to get increased foreign aid); see also A Joint Report of the
OECD Nuclear Energy Agency and the International Atomic Energy Agency, International
Nuclear Law in the Post-Chernobyl Period (2006).
See Sandoz to Pay Rhine Pollution Claims, Swiss Chemical Company to Reimburse Claimants, Fin.
84

Times UK, Nov. 14, 1986.
Climate Change Litigation 353


Sumatra spread across Southeast Asia. Despite the costly disruption of air travel and
other business activities and signi¬cant adverse health and environmental effects,
neighboring Southeast Asian countries did not make of¬cial diplomatic claims to the
effect that Indonesia should be held legally responsible for the costs of the problem.85
All of these cases may be distinguished from global warming by their unique
facts. The Ukraine, for example, was poor and unable to well afford the cost of
decommissioning the reactor on its own.86 Sandoz privately provided compensation
for individual victims of the disaster.87 Finally, Southeast Asian governments, in
accordance with ASEAN diplomatic protocol, used diplomacy, rather than formal
legal claims, to encourage Indonesia to take action to avoid recurrence.88 The inter-
national environmental precedent relevant to a global warming case is, therefore,
inconclusive.


3.3. Treaties and Soft Law Declarations
Treaties are usually considered to be the most authoritative source of international
law. The UNFCCC treaty standards prescribing state action related to global warm-
ing are likely to be the most generally applicable in a global warming suit because
of States™ almost universal participation in it, including by the United States. As
discussed in Subsection 2.1.3, Article 4.2(a) of the UNFCCC speci¬cally commits
developed countries to limit their anthropogenic emissions of greenhouse gases.89
Other “principles” of the convention speci¬ed in Article 2 are likely to be important
as well in interpreting this commitment. For example, Article 3(1) provides:

The Parties should protect the climate system for the bene¬t of present and future
generations of humankind, on the basis of equity and in accordance with their
common but differentiated responsibilities and respective capabilities. Accordingly,
the developed country Parties should take the lead in combating climate change
and the adverse effects thereof.90

Instead, beginning in 1997, there has been joint ASEAN efforts at haze prevention pursuant to the
85

Regional Haze Action Plan. In 2003, the ASEAN Agreement on Transboundary Haze Pollution
entered in force. See ASEAN Agreement on Transboundary Haze Pollution, June 10, 2002, available
at http://www.aseansec.org/pdf/agr_haze.pdf. The treaty provides for the use of zero burning and
controlled-burning practices and for the deployment of a Panel of ASEAN Experts on Fire and Haze
Assessment and Coordination. The problem, however, continues to persist. See Indonesia Downbeat
on Stopping Fires Causing Haze, Asian Econ. News, Dec. 11, 2006; see also Haze Online, Main Page,
http://www.haze-online.or.id/ (last visited Feb. 27, 2008).
See sources supra note 83.
86

See Sandoz to Pay Rhine Pollution Claims, supra note 84.
87

See sources supra note 85.
88

See supra note 31 and accompanying text.
89

United Nations Framework Convention on Climate Change, art 3.1, May 9, 1992, 1771 U.N.T.S. Also
90

helpful in supporting a climate change law suit would be Article 3.3, which provides:
The Parties should take precautionary measures to anticipate, prevent or minimize the causes of
climate change and mitigate its adverse effects. Where there are threats of serious or irreversible
damage, lack of full scienti¬c certainty should not be used as a reason for postponing such
Andrew Strauss
354


The extensive state adherence to the UNFCCC is the result of the general per-
ception that the articles that I have referenced place no precisely de¬nable legal
limitations on states. Given that treaty™s obligatory language regarding remediation
of the global warming problem, particularly by developed countries, it is quite pos-
sible, however, that the ICJ would decide this not to be the case.
Also discussed in Subsection 2.1.3, the Kyoto Protocol places obligations on devel-
oped countries to meet speci¬c targets for reducing their contribution to global
warming between 2008 and 2012.91 Because of the different ways in which the Kyoto
obligations can be met,92 as well as that Protocol™s more limited membership, its con-
tribution to the theory of a global warming case is likely to be much more complex.
Other treaties also could possibly be relevant to constructing an international global
warming suit. Among them is the Straddling Fish Stocks Agreement examined by
Wil Burns in this book, as well as the Convention on Long-Range Transboundary Air
Pollution93 and certain of its protocols. This latter treaty regime regulates some pol-
lutants which affect global warming, and contains general language possibly helpful
in a global warming suit.
The two primary declarations relevant to liability for emissions of greenhouse gases
are the Stockholm Declaration and the Rio Declaration. The Stockholm Declaration
came out of the 1972 Stockholm Conference on the Human Environment, often
considered the progenitor of the modern environmental movement. It was adopted
by a vote of 103 to 0 with 12 abstentions. Principle 21 of the Declaration is most
apposite. It provides that:

States have, in accordance with the Charter of the United Nations and the principles
of international law, the sovereign right to exploit their own resources pursuant to
their own environmental policies and the responsibility to ensure that activities
within their jurisdiction or control do not cause damage to the environment of
other States or of areas beyond the limits of national jurisdiction.94

In 1992, twenty years after Stockholm, the second major global environmental
conference, and one of the largest diplomatic gatherings in history, took place in Rio
de Janeiro. It was the Earth Summit, of¬cially called the United Nations Conference
on the Environment and Development. One of the principal outcomes of this

measures, taking into account that policies and measures to deal with climate change should
be cost-effective so as to ensure global bene¬ts at the lowest possible cost. To achieve this, such
policies and measures should take into account different socio-economic contexts, be compre-
hensive, cover all relevant sources, sinks and reservoirs or greenhouse gases and adaptation,
and comprise all economic sectors. Efforts to address climate change may be carried out by
interested Parties. Id. at art. 3.3.
See supra note 29 and accompanying text.
91

See supra note 45.
92

Convention on Long-Range Transboundary Air Pollution, Nov. 13, 1979, TIAS No. 10,541, reprinted
93

in 18 I.L.M. 1442 (1979).
Stockholm Declaration on the Human Environment, princ. 21, Report of the United Nations Con-
94

ference on the Human Environment, Stockholm, June 5“16, 1972, U.N. Doc. A/CONF.48/14/Rev.1,
U.N. Sales No. E.73.II.A.14, pt. 1, ch. 1 (1973), reprinted in 11 I.L.M. 1416 (1972).
Climate Change Litigation 355


conference was the Rio Declaration which was adopted by consensus. Principle
2 of that declaration is identical to Principle 21 of the Stockholm Declaration,
except that the words “and developmental” are inserted between “environmental”
and “policies.”95 Because the legal authority of declarations, and the relationship of
treaties to each other and to other sources of international law, are not well settled
within the international system, there are varied conceptual possibilities for how
these legal instruments can be tailored into a coherent theory of a global warming
case.


4. CONCLUSION

These are hopeful times in the short history of our efforts to remediate the global
warming problem. For the ¬rst time, the issue seems to have penetrated deeply
into the global mass political consciousness. Foundation money is ¬‚owing into
climate change initiatives. It has become fashionable for celebrities and public
personalities to associate themselves with the cause. Former Vice President Gore
and the Intergovernmental Panel on Climate Change won the 2007 Noble Peace
Prize for their work on global warming. Venture capital and other forms of ¬nancing
are ¬‚owing into researching and developing alternatives to greenhouse gas“emitting
technologies. The Obama administration™s commitment to climate and energy issues
appears to be ushering in a new era of U.S. efforts.
Yet there is reason to be sober in our assessment. Most climate scientists agree
that greenhouse gas reduction targets currently being proposed are not suf¬cient
to avert potentially cataclysmic effects. What™s more, viewing the present concern
from an historical perspective gives another reason for pause. We have seen before
a pattern of great environmental awakening only to be followed by mass political
denial. Building upon the publication of Rachel Carson™s Silent Spring in 1962, the
modern environmental movement was born of an emerging consciousness that we
share one small ¬nite planet. After a sustained period of growing awareness and
action, however, environmental matters largely went out of fashion in the 1980s.
Then, heralded by Time magazine™s choice of “endangered earth” as its “Planet of
the Year” for 1989, and fueled by the end of the Cold War in the 1990s, concern
for the environment again resurfaced in the popular consciousness. But this was
once more followed by a decline in interest, especially after the terror attacks of
September 11, 2001.96

Rio Declaration on Environment and Development, Aug. 12, 1992, U.N. Doc. A/CONF.151/5/REV.1
95

(1992), 31 I.L.M. 876.
For a discussion of changing environmental attitudes in the United States speci¬cally and the method-
96

ology of measuring them, see Chapter 3, Stability: Have Environmental Attitudes Changed over Time?
in Deborah Lynn Guber, The Grassroots of a Green Revolution (2003); see also Tom W. Smith,
Trends in National Spending Priorities, 1973“2006, 23 (2007) (documenting results of U.S. public
opinion polls demonstrating that support for environmental spending rose at the immediate end of
the cold war and fell after the terror attacks of 2001). For a discussion of attitudes in the United States
regarding global warming speci¬cally, see Matthew C. Nisbet & Teresa Myers, Twenty Years of Public
Andrew Strauss
356


Whatever political vagaries in¬‚uence attempts to counteract global warming,
there is likely a constructive role for litigation in general and perhaps for the ICJ
in particular. But any such role needs to be seen as complementary to a broader
political strategy. For example, the trust necessary for parties to succeed in good
faith negotiations over global warming could well be undermined by certain parties
initiating legal actions against others. On the other hand, as a spur to recalcitrant
parties, litigation could have the bene¬ts described in Section 1 of this chapter.
We are still in the early stages of the global warming phenomenon. There likely
will be different generations of lawsuits, probably evolving over time to deal less
with the raising of political consciousness and more with the allocation of losses and
adaptation costs. Litigation is poised to play a role, and the ICJ with its unique status
and visibility could make an important contribution. My hope in this chapter has
been to further a discussion of how the door to that forum might be opened.

Opinion About Global Warming, 71 Pub. Opinion Q. 13 (Fall 2007) (reporting on Gallup Poll results
showing that between 1989 and 1991 about one-third of respondents worried “a great deal” about global
warming with results ¬‚uctuating in the 1990s, falling after the 2001 terror attacks and now rebounding).
16

The Implications of Climate Change Litigation: Litigation for
International Environmental Law-Making

David B. Hunter—



INTRODUCTION

Everyone is talking about climate change. Climate change has been on the cover
of almost every U.S. magazine in the past couple of years, including Vanity Fair,
Time, Newsweek, the Economist, and even Sports Illustrated, on such television
shows as Oprah and The Tonight Show, and in the movie theaters with Al Gore™s An
Inconvenient Truth and Who Killed the Electric Car? To be sure, this media attention
is driven ¬rst by the increasingly clear scienti¬c connection between greenhouse
gas concentrations, climate change, and real impacts affecting real people. But the
growing public awareness of climate change is also being driven by the actions of
lawyers and other climate advocates who are increasingly litigating climate change
in the world™s courts, commissions, and congresses. Climate change even made an
appearance before the U.S. Supreme Court.1 Win or lose (and some will surely win,
as they did in the U.S. Supreme Court), these litigation strategies are signi¬cantly
changing and enhancing the public dialogue around climate change.
This chapter discusses the awareness-building impacts of climate litigation as
well as related impacts such strategies may have on the development of climate
law and policy “ even if many of the individual cases lose.2 The chapter does not
discuss the signi¬cant implications if a tort action in the United States or the Inuit
human rights claims, for example, were ultimately to prevail. Such precedents,
which would obviously be far reaching, are discussed in the various chapters of
this book addressing dif¬cult litigation strategies. The primary focus here is on the


— Assistant Professor of Law & Director, Program on International and Comparative Environmental
Law, American University Washington College of Law, 4801 Massachusetts Ave., NW, Washington,
D.C. 20016, 202“274-4415, dhunter@wcl.american.edu.
Massachusetts v. EPA, 549 U.S. 497 (2007).
1

See also Stephanie Stern, State Action as Political Voice in Global Climate Change Policy: A Case
2

Study of the Minnesota Environmental Cost Valuation Regulation, this volume (discussing how climate
change actions by states can strengthen their political in¬‚uence in the climate debate); Joseph Smith
& David Shearman, Climate Change Litigation: Analysing the Law, Scienti¬c Evidence &
Impacts on the Environment, Health & Property 12 (2006) (noting public awareness-building
impact and motivation of some of the climate litigation).

357
David B. Hunter
358


implications of climate litigation simply by virtue of cases having been ¬led. In
fact, the debate over whether speci¬c theories will prevail or what remedies can
be fashioned in a speci¬c case misses much of the signi¬cance of these litigation
strategies. Just the acts of preparing, announcing, ¬ling, advocating, and forcing a
response have signi¬cant impacts.
Climate advocates are necessarily pushing the development of the law in new
directions. The world™s legal systems “ both international and national “ have never
seen a challenge quite like climate change. The science involves complexities of
global ecology that are of a scale new to the courts. Nearly all of our activities, whether
as individuals, corporations, or governments, contribute to the problem and almost
everyone is affected. The entire world is at once simultaneously both a potential
plaintiff and defendant. Climate change presents signi¬cant geographic complexi-
ties, with signi¬cant implications for jurisdiction and the shaping of remedies.3 Cli-
mate change also presents dif¬cult temporal problems, with emissions today mixing
with emissions from yesterday to cause impacts in the future. This geographic and
temporal distance between the wrongs (e.g., the emissions) and the injuries presents
new challenges for law.
The unique aspects of climate change have forced climate advocates to innovate
and to develop creative new strategies internationally and domestically. They have
had to push for the progressive development of the law and related institutions,
emphasizing not only the differences but the similarities of climate change with
more familiar issues. Viewed in this light, climate change is just another, albeit
distinctly modern, common law nuisance, threat to cultural property, or human
rights violation. In this respect, the climate change advocates are right: climate
change may be global, it may be complex, but climate change is also strikingly
familiar. Real people, typically those already marginalized with few resources, will
suffer real harm because of the activities of others. Isn™t this precisely what the law is
meant to address?


1. THE FOCUS ON VICTIMS

Climate advocates™ focus on speci¬c injuries in speci¬c situations has far-reaching
implications for climate policy more generally. In the Kyoto negotiations or in
previous national climate policy debates, the focus has primarily been on climate
change™s global impacts: average temperature increases, average sea level rise, aver-
age changes in precipitation. With the rise of climate litigation strategies, however,
the focus necessarily shifts to the speci¬c injuries being asserted by the plaintiffs or


See, e.g., Hari M. Osofsky, The Geography of Climate Change Litigation: Implications for Transnational
3

Regulatory Governance, 83 Wash. U. L.Q. 1789 (2005); Hari M. Osofsky, The Inuit Petition as a Bridge?
Dialectics of Climate Change and Indigenous Peoples™ Rights, this volume; see also Kirsten Engel,
Harmonizing Regulatory and Litigation Approaches to Climate Change Mitigation: Incorporating
Tradable Emissions Offsets into Common Law Remedies, 155 U. Pa. L. Rev. 1563 (2007).
The Implications of Climate Change Litigation 359


claimants: the impacts on New England™s ski industry,4 California™s coastline,5 the
life and culture of the Inuit,6 the survival of polar bears or penguins,7 or the grandeur
of Mount Everest or Glacier National Park.8
Advocates have had to compile and present detailed assessments of climate impacts
in ways that highlight the many regional and local impacts of climate change. In
Connecticut v. American Electric Power Co., for example, the New England states
documented impacts that included declining snowpack and ice; increased loss of
life and public health threats from heat-related illnesses and smog; impacts on
the San Francisco Bay, Jamaica Bay National Wildlife Refuge, and other coastal
resources from storm surges and permanent sea level rise; declining water levels in
the Great Lakes; increases in temperatures in the upper surfaces of the Great Lakes;
and rapid declines in forest resources, including New York™s Adirondack State Park,
among other regionally speci¬c allegations.9 Similarly, California, in California v.
General Motors, detailed impacts of global warming that are already occurring in
California and related costs the state is incurring in response. These impacts include,
for example, a decline in snowpack in the Sierra Nevada range due to an increase in
average winter temperatures; the costs of rebuilding levees to prevent seawater in¬l-
tration and other impacts of sea level rise on the Sacramento Bay and Delta; increased
¬‚oods from earlier spring runoffs; and beach preservation efforts to reverse increased
beach erosion from sea level rise.10


Complaint, Connecticut v. Am. Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005) (No. 04 Civ.
4

5669(LAP)) [hereinafter Connecticut v. AEP Complaint].
Complaint, California v. Gen. Motors Corp., No. C06“05755 (N.D. Cal., Sept. 20, 2006) [hereinafter
5

California v. Gen. Motors Complaint].
See Center for International Environmental Law, An Inuit Petition to the Inter-American Com-
6

mission on Human Rights for Dangerous Impacts of Climate Change at 35“69 (2004), available at
http://www.ciel.org/Publications/COP10_Handout_EJCIEL.pdf [hereinafter Inuit Petition] (describ-
ing impacts on “every aspect of Inuit life and culture”).
Center for Biological Diversity, Petition to List the Polar Bear (Ursus maritimus) as a Threat-
7

ened Species under the Endangered Species Act before the Secretary of the Interior (Feb. 16,
2005), available at http://www.biologicaldiversity.org/swcbd/SPECIES/polarbear/petition.pdf [here-
inafter Polar Bear Petition]; Center for Biological Diversity, Petition to List 12 Penguin Species
under the Endangered Species Act before the Secretary of the Interior (Nov. 28, 2006), available at
http://www.biologicaldiversity.org/swcbd/SPECIES/penguins/PenguinPetition.pdf [hereinafter
Penguin Petition].
See, e.g., Petition to the World Heritage Committee for Inclusion of the Waterton-Glacier Interna-
8

tional Peace Park on the List of World Heritage in Danger and for Protective Measures and Actions
(Feb. 16, 2006), available at http://law.lclark.edu/org/ielp/objects/Waterton-GlacierPetition2.15.06.pdf
[hereinafter Waterton-Glacier UNESCO Petition]. Other petitions were ¬led to list the Mesoamerican
Barrier Reef in Belize, Huarasc´ n National Park in Peru, Sagarmatha National Park in Nepal, and the
a
Great Barrier Reef in Australia. See Climate Justice Programme, UNESCO Danger-Listing Petitions
Presented (Nov. 17, 2004), available at http://www.climatelaw.org/media/UNESCO.petitions.release
[hereinafter UNESCO Petitions]. See generally UNESCO, World Heritage Centre, Predicting and
Managing the Effects of Climate Change on World Heritage, WHC-06/30.COM/7.1, Annex 4 (June
26, 2006) [hereinafter World Heritage Climate Report].
Connecticut v. AEP Complaint, supra note 4, at paras. 112“17, 121“27, 132“35.
9

California v. Gen. Motors Complaint, supra note 5, at paras. 46“56.
10
David B. Hunter
360


This focus on speci¬c injuries is critical for building political support; such cases
link climate change with the lives of ordinary people. Reports of a global increase
in temperature of 1—¦ F or even 5—¦ F have little meaning to most people. The impact is
much more understandable when an Inuit expresses implications of climate change
for their lives, when the glaciers of Nepal are melting, or when descriptions of
drowning or cannibalistic polar bears are reported on the news. The Inuit human
rights petition, for example, provides thirty-¬ve pages on impacts of climate change
on their life and culture. The petition details changes in Arctic ice conditions and the
resulting dangers for Inuit travel, the reduction in materials (thick ice) for building
traditional igloos, and the deterioration of wildlife harvests because of declining
populations of caribou, seals, polar bears, and other animals.11 In short, the petition
tells a story about the impacts of climate change in human terms far removed from the
antiseptic discussion of greenhouse gas concentrations or global mean temperatures
that have traditionally predominated international climate negotiations.
The storytelling quality of “cases” thus makes climate change more tangible and
more immediate, which signi¬cantly changes the tone of the climate debate.12 If
real victims “ such as islanders or the Inuit “ are in a room pressing their stories, it
is harder for others to bluster about how climate change is a hoax or is unimportant
because some regions may bene¬t from warming or will be able to adapt relatively
easily. At the very least, addressing climate change takes on a renewed urgency when
one moves from the abstraction of sea level rise, for example, to questions of how
to treat climate refugees from South Paci¬c islands or how to shore up the eroding
California coastline. A focus on victims increases the saliency of questions about
compensation and adaptation to climate change, and the urgency of mitigating
climate change to avoid even worse impacts in the future.13 This builds momentum
at both the national and international levels for stronger climate policymaking.


2. IMPLICATIONS FOR CLIMATE POLICY

2.1. Implications for Climate Science
Climate litigation™s focus on victims and on speci¬c impacts has implications for how
we use climate science and on what climate science is conducted. Every litigation
strategy requires the collection, synthesis, and presentation of climate science in
support of its claims. This process highlights and makes more accessible to a wider
audience the expanding research and analysis on speci¬c local and regional climate
impacts.
Inuit Petition, supra note 6, at 35“69.
11

The story-telling or narrative quality of cases has spawned signi¬cant scholarship. See, e.g., Daniel A.
12

Farber & Suzanna Sherry, Telling Stories out of School: An Essay on Legal Narratives, 45 Stan. L.
Rev. 807 (1993); Peter Brooks & Paul Gewirtz, Law™s Stories: Narrative and Rhetoric in the
Law (1996).
See infra Section 2.2 (discussing impacts of litigation strategies on the development of international
13

climate policy).
The Implications of Climate Change Litigation 361


This has proved particularly true of the reports issued by the Intergovernmental
Panel on Climate Change (IPCC),14 which have been cited as the scienti¬c basis
by most of the climate plaintiffs or petitioners.15 The IPCC reports attract particular
attention because they compile and summarize the international consensus on cli-
mate science at a speci¬c point in time. Moreover, the IPCC™s practice of explicitly
bounding its views of the likelihood of certain scienti¬c conclusions in terms of
numeric probabilities not only assists international policymakers at the U.N. Frame-
work Convention on Climate Change (UNFCCC) but also offers lawyers scienti¬c
conclusions that are useful in explaining and meeting the standards for causation.
This reliance on the IPCC™s reports presents a two-way validation: the IPCC™s pres-
tige and international status provides a convenient and effective af¬rmation of the
claimant™s factual allegations (at least with respect to global climate trends) and, at
the same time, use of the IPCC (and particularly its acceptance, if it ensues, by
other institutions as authoritative) adds legitimacy and prestige to the IPCC and its
reports. This has been evidenced by the enormous, mostly positive media attention
the IPCC™s Fourth Assessment has received since the beginning of its release in
2007, and the dominant role it now plays in public discourse over climate science.
One can also expect that the Fourth Assessment will be central to the next generation
of climate cases and claims. Although some may argue that the IPCC™s reports are
not meant to be used for direct advocacy in speci¬c cases, the IPCC™s screening
and presentation of the emerging science provides an important service in allowing
litigants and adjudicators alike to ground advocacy strategies and opinions in the
current scienti¬c consensus.
The IPCC reports are not the only scienti¬c studies to play a signi¬cant role in cli-
mate litigation. The Inuit Petition, for example, relied heavily on the Arctic Climate
Impact Assessment, a comprehensive regional report released by the Arctic Council
and International Arctic Science Committee.16 That 2004 report concluded that
the Arctic was “experiencing some of the most rapid and severe climate change on
Earth.”17 California™s complaint against the automobile industry also highlighted the
Assessment.18 Such use of the Assessment has helped to raise awareness of its ¬ndings
in ways that would have been unlikely without it forming part of controversial and
novel litigation strategies.


See Intergovernmental Panel on Climate Change [IPCC], Working Group I, Climate
14

Change 2007: The Physical Science Basis (2007), available at http://ipcc-wg1.ucar.edu/wg1/wg1-
report.html [hereinafter IPCC, 2007 Physical Science Basis]; IPCC, Working Group II, Cli-
mate Change 2007: Impacts, Adaptation and Vulnerability 2 (2007), available at http://www.ipcc
.ch/spm13apr07.pdf.
See, e.g., Massachusetts v. EPA, 549 U.S. 497, 508“509 (2007); California v. Gen. Motors Complaint,
15

supra note 5, at paras. 24, 26, 31; Connecticut v. AEP Complaint, supra note 4, at paras. 80, 88, 92“93.
See, e.g., Inuit Petition, supra note 6, at 35; see also Int™l Arctic Science Comm. & The Arctic
16

Council, Arctic Climate Impact Assessment (Nov. 2004) [hereinafter Arctic Climate Assessment].
California v. Gen. Motors Complaint, supra note 5, at para. 37 (quoting Arctic Climate Assessment,
17

supra note 16).
California v. Gen. Motors Complaint, supra note 5, at paras. 37“38.
18
David B. Hunter
362


Climate litigation strategies not only rely on emerging science but also will in¬‚u-
ence the development of climate science both directly and indirectly. Some domestic
climate cases in several countries have been ¬led with the goal of improving the
assessment of climate impacts and the use of climate science. In Massachusetts v.
EPA, the U.S. Supreme Court required the government to make a reasoned judg-
ment on whether emissions of carbon dioxide are endangering public health and
welfare as an initial step in determining whether to regulate carbon dioxide as an air
pollutant under the Clean Air Act.19 At the project level, cases in the United States,20
Germany,21 and Australia22 have sought (sometimes successfully) to require under
national law the consideration of climate impacts in project ¬nance or permitting.
In Australia, for example, greenhouse gas emissions and resulting climate impacts
must be assessed in coal mining and power plant operations, which will increase the
scienti¬c basis for decision making in those sectors.23 A recent lawsuit in the United
States is aimed at compelling the United States to complete a National Assessment
of climate impacts, which was required by Congress to be completed by 2004.24
Other U.S. cases seek to force the assessment of climate change impacts25 or the
consideration of such impacts in permitting decisions.26
Massachusetts, 549 U.S. at 532“35; see also Coke Oven Envtl. Task Force v. EPA, No. 06“1131 (D.C.
19

Cir. ¬led Apr. 7, 2006) (pending challenge to EPA™s refusal to regulate carbon dioxide emissions in
setting new source performance standards under the Clean Air Act).
Friends of the Earth v. Mosbacher, No. C02“4106 JSW, 2007 WL 962955 (N.D. Cal. Mar. 30, 2007)
20

(order denying plaintiffs™ motion for summary judgment and granting in part and denying in part
defendants™ motion for summary judgment); Friends of the Earth v. Watson, No. C02“4106 JSW, 2005
WL 2035596 (N.D. Cal. Aug. 23, 2005) (order denying defendants™ motion for summary judgment).
These cases settled in February 2009. See Joint Motion for Dismissal with Prejudice, Friends of the
Earth v. Spinelli, No. C02“4106 JSW (Feb. 6, 2009).
See Press Release, GermanWatch & BUND, German Government Sued over Climate Change (June
21

15, 2004), available at http://www.climatelaw.org/media/german.suit/press.release.pdf (announcing
lawsuit against the German Federal Ministry of Economics and Labour to compel disclosure of the
climate change contribution made by those projects ¬nanced by the German export credit agency,
Euler Hermes AG); Bund & Germanwatch v. German Fed. Ministry of Econ. and Labour [BMWA],
Beschluss, Verwaltungsgericht [VG Berlin] [Local Administrative Court], Jan. 10, 2006, VG 10
A 215.04 (2006), translated at http://www.climatelaw.org/media/Germany/de.export.decision.eng.doc
(order entering settlement with legal opinion).
Australian Conservation Found. v. Minister for Planning, Administrative Decision, (2004) VCAT 2029
22

(holding that the Australian Planning and Environment Act requires consideration of greenhouse gas
emissions and resulting climate impact in licensing coal mining and power plant operations); Wildlife
Preservation Soc. of Queensland Proserpine/Whitsunday Branch v. Ministry for the Env™t & Heritage
(2006) FCA 736 (upholding decisions by the Australian environment ministry to license two coal
mines, despite their failure to consider climate impacts on natural heritage sites). For information
on climate-related cases brought in Australia, see the website of the Australian Climate Justice Pro-
gram, available at http://www.cana.net.au/ACJP/cases.php?case_table=cases_aust (last visited May
28, 2007).
Australian Conservation Found.v. Minister for Planning, (2004) VCAT 2029; see also Smith & Shear-
23

man, supra note 2 (discussing Australian Conservation Foundation).
Complaint, Ctr. for Biological Diversity v. Brennan, No. C06“7061 (N.D. Cal. Nov. 14, 2006).
24

See, e.g., Watson, 2005 WL 2035596.
25

Nw. Envtl. Def. Ctr. v. Owens Corning Corp., 434 F. Supp. 2d 957 (D. Or. 2006) (opinion and order)
26

(holding that plaintiff environmental organization had standing to challenge a permit application that
would have permitted signi¬cant releases of a potent greenhouse gas (HCFC-142b)).
The Implications of Climate Change Litigation 363


In other cases, expanding climate science may be an indirect or secondary out-
come of the litigation effort.27 The petitions to the World Heritage Committee, for
example, triggered a series of activities and reports that are aimed in part at reviewing
the nature and scale of the risks posed to World Heritage properties arising speci¬-
cally from climate change.28 More generally, climate litigation efforts may provide
an incentive to some scientists to prioritize certain questions that they might other-
wise ignore. Questions of attribution, for example, become particularly relevant for
litigation strategies aimed at securing compensation for those affected or for driving
corrective action by identifying those responsible.29 The science of attribution is
gaining ground; one recent study, for example, found that the human contribution
to the 2003 European heat wave increased the potential of risk of such weather from
four to ten times.30 Approximately 22,000 to 35,000 people died from heat-related
deaths, 75 percent of whom would have been likely to survive for more than a year
without such heat.31 Such studies will be critical in shaping future climate litigation
strategies.
Finally, climate litigation is shaping the tone of the debate over climate science.
In journalistic or political approaches to climate, the views of climate skeptics were
previously given equal weight to the broad consensus views regarding science. In
climate litigation forums, however, such skeptics may be asked to submit af¬davits or
even face cross-examination of their views. This ground-truthing of climate science
may screen out and discredit those fringe scientists whose positions may not be able
to withstand the scrutiny that comes from adversarial proceedings, particularly in
domestic courts. To be sure, some opinions questioning the adequacy of climate
science for judicial review have and will occur,32 but recent cases, including the


See, e.g., Inuit Petition supra note 6, at 118 (seeking as one remedy that the “U.S. take into
27

account the impacts of U.S. greenhouse gas emissions on the Arctic and affected Inuit in evaluating
and before approving all major government actions”); see also Bund & Germanwatch v. German
Fed. Ministry of Econ. and Labour [BMWA], Beschluss, Verwaltungsgericht [VG Berlin] [Local
Administrative Court], Jan. 10, 2006, VG 10 A 215.04, translated at http://www.climatelaw.org/media/
Germany/de.export.decision.eng.doc (entering order requiring Hermes to assess impacts of its ¬nan-
cial decisions on climate change).
See UNESCO, Announcement of World Heritage, Climate Change and World Heritage: Expert
28

Meeting, March 16“17, 2006, available at http://whc.unesco.org/en/events/301 (last visited Dec. 16,
2006).
See, e.g., Myles Allen et al., Scienti¬c Challenges in the Attribution of Harm to Human In¬‚uence on
29

Climate, 155 U. Pa. L. Rev. 1353 (2007).
Id.; see also Myles Allen, Liability for Climate Change, 421 Nature, 891“92 (Feb. 27, 2003); Peter A.
30

Stott et al., Human Contribution to the European Heatwave of 2003, 432 Nature, at 610 (Dec. 2, 2004);
Simone Bastianoni, Federico M. Pulselli & Enzo Tiezzi, The Problem of Assigning Responsibility
for Greenhouse Gas Emissions, 49 Ecological Econ. 253 (2004) (discussing dif¬culties in assigning
responsibility for greenhouse gas emissions).
See Allen, supra note 29.
31

Massachusetts v. EPA, 127 S.Ct. 1438, 1463“71 (Roberts, C.J., dissenting); Re Xstrata Coal Queensland
32

Pty Ltd & Ors, [2007] QLRT 33 (holding that plaintiffs had not proven a causal link between climate
change and carbon emissions); Korsinsky v. EPA 5 No. 05 Civ. 859 (NRB), 2005 WL 2414744 (S.D.N.Y.
Sept. 29, 2005).
David B. Hunter
364


U.S. Supreme Court decision in Massachusetts v. EPA, are tending to support and
recognize the general scienti¬c consensus regarding climate change.33 When courts
and other highly credible institutions validate the basic science of climate change,
the general public™s perception of the climate debate shifts from whether climate
change is occurring to what the appropriate remedies should be. For the public,
judicial decisions can move the debate from an esoteric one among scientists to an
issue decided by impartial judges whose job it is to resolve such matters.


2.2. Implications for the Climate Negotiations
Climate change litigation strategies have been at least partly a response to the per-
ceived weakness of the international climate regime. Initially, many of the litigation
strategies were designed as an indirect response to the decisions by Australia and the
United States to withdraw from the Kyoto Protocol.34 More recently, a Canadian
environmental group ¬led a lawsuit asking the courts to declare Canada in noncom-
pliance (or imminent noncompliance) with the UNFCCC and Kyoto Protocol.35
The application for judicial review alleges that Canada™s Ministries of Environment
and Health are in violation of section 166 of the Canadian Environmental Protection
Act, which requires them to act “if the Ministers [of the Environment and Health]
have reason to believe that a substance released from a source in Canada into the
air creates, or may reasonably be anticipated to contribute to (a) air pollution in a
country other than Canada; or (b) air pollution that violates, or is likely to violate,
an international agreement binding on Canada in relation to the prevention, con-
trol or correction of pollution.”36 According to the application, the Government of
Canada™s own reports estimate that its actual emissions will be nearly 40 percent
higher than that which is allowed under the Kyoto Protocol.37 Although this is the
¬rst lawsuit in the world aimed speci¬cally at enhancing compliance with the inter-
national climate regime, many of the other climate litigation strategies have also
been designed at least in part to increase the political will for stronger international
climate change policy.38
Massachusetts, 127 S.Ct. at 1455“58; see also, e.g., In re Quanti¬cation of Envtl. Costs, 578 N.W.2d 794,
33

799 (Minn. Ct. App. 1998) (upholding Commission ¬nding that carbon dioxide negatively affects the
environment).
See William C. G. Burns & Hari M. Osofsky, Overview: The Exigencies That Drive Potential Causes
34

of Action for Climate Change, this volume.
Application, Friends of the Earth v. Her Majesty the Queen, Minister of the Env™t & Min-
35

ister of Health, No. T-914“07 (Federal Court Ottawa, May 28, 2007), available at http://www
.sierralegal.org/reports/notice_of_application07_05_29.pdf (application for judicial review of the
Canadian government™s actions, emitting greenhouse gases, in violation of section 166 of the Canadian
Environmental Protection Act, the UNFCCC, and the Kyoto Protocol). The case was subsequently
dismissed as being unjusticiable, and is being appealed. See Friends of the Earth v. Canada, 2008 FC
1183 (CanLII).
Id.
36

Id.
37

See, e.g., Stern, supra note 2 (noting that a Minnesota climate regulation was a “statement of political
38

opposition to ineffective national and global climate change policies”).
The Implications of Climate Change Litigation 365


The litigation efforts thus should not be seen in isolation from the negotiations
under the UNFCCC and the Kyoto Protocol. The Conference of the Parties (CoP)
to the UNFCCC and the Meetings of the Parties (MoP) to the Protocol are now
enormous events that bring together a broad range of nontraditional parties to discuss
a wide range of responses to climate change. Many of the principal players in climate
litigation are also active in international negotiating and policymaking processes. In
the “epistemic community”39 that has emerged around climate negotiations, climate
advocates ¬nd both a ready audience for spreading the news of litigation and for
seeking the same goals that they are seeking through the litigation. The CoP/MoP
community is thus a critical venue for developing strategies, identifying partners,
reaching out to the press, building legitimacy and credibility for the litigation, and
developing factual experts that can support the litigation.
For climate advocates, the CoP/MoP presents additional opportunities for pursu-
ing their speci¬c goals and they actively seek to in¬‚uence discussions at the nego-
tiations. The Inuit, for example, held “side-events” at three UNFCCC CoPs before
¬ling their petition,40 and they chose the CoP as the place for formally announcing
their intent to ¬le the petition. This brought attention to their claims and their con-
cerns, both for the ¬ling of the petition but also in the negotiations as well. So, too,
the civil society coalition that submitted petitions to the World Heritage Committee,
as well as the Secretary General of UNESCO, have held events at the UNFCCC
CoP to highlight the impacts of climate change on World Heritage sites.41
High-pro¬le climate litigation strategies in the United States have also helped
to undermine the U.S. opposition to the Kyoto Protocol, particularly its efforts to
derail the launch of negotiations for the second reporting period under Kyoto. At
the 2005 CoP/MoP in Montreal, the United States sought to enlist Australia, China,
and India in a united front against the European push for negotiations of future
commitments under the Kyoto Protocol. The U.S. strategy failed in part because
of the multiplicity of U.S. voices at the negotiations (including local government
of¬cials, former President Bill Clinton, and several Senators) that argued action was
occurring in the United States, that the Bush administration was isolated, and that
the United States would likely engage in future international negotiations after the
next president took of¬ce.42 The presence of high-pro¬le alternative U.S. voices and

See generally Peter Haas, Introduction: Epistemic Communities and International Policy Coordination,
39

46 Int™l Org. 1 (1992) (de¬ning epistemic communities as “networks of professionals with recognized
expertise and competence in a particular domain and an authoritative claim to policy-relevant knowl-
edge within that domain or issue-area.”); Robert Keohane & Joseph Nye, Transgovernmental Relations
and International Organizations, 27 World Pol. 39 (1974). According to these and other authors in
international relations, the recurrent meetings of these epistemic communities at, for example, annual
meetings of multilateral environmental regimes link government and nongovernment of¬cials in a
more effective and dynamic, long-term policymaking process.
Inuit Petition, supra note 6, at 117.
40

Statement of Koichiro Matsuura, UNESCO Director General, to the 12th Conference of the Parties
41

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