July 3, 2012: Panel 5E - The Evolution of Sustainable Development and Climate Change Law

The Evolution of Sustainable Development and Climate Change Law Video

Tue, 03 Jul 2012 14:40:00 PDT

Adapting to Earth's Anthropocene Epoch: The Evolution of Environmental Law

Nicholas A. Robinson — Tue, 03 Jul 2012 14:40:00 PDT

Is attaining “sustainable development” still realistic in the wake of the Great Recession of 2008 and the crescendo of environmental degradations and impacts induced by climate change? Are the current trends transforming the Earth, often at exponential rates, rendering today’s environmental treaties and statutes obsolete? Melting the cryosphere, embedding in Earth’s soils and waters many synthetic new chemicals unknown in nature, introducing radioactive elements world-wide, altering the carbon cycle, and terra-forming the coastlines through raising the levels of the seas, all have permanently propelled human society from the Holocene into the Anthropocene Epoch. These changes have prompted Nobel laureate Paul Crutzen to call today’s trends “the Great Acceleration,” in an essay with colleagues published in the Swedish Royal Academy of Sciences’ journal, AMBIO (vol. 36, no. 8, December 2007). The Great Acceleration is overwhelming traditional socio-economic systems. Dr. Crutzen’s asks: “To develop a universally accepted strategy to ensure the sustainability of Earth’s life support system against human-induced stresses is one of the greatest research and policy challenges ever to confront humanity. Can humanity meet this challenge?”It is time for environmental law to reform to meet the challenge. This paper probes how environmental law can help societies adapt to the new conditions of the Anthropocene. It examines how general principles of law can evolve so that all societies come to embrace the same fundamentals: strengthened observance of the well-accepted legal and moral principle of “cooperation,” and explicit recognition of “resilience,” as a moral and legal principle. These two principles can imbue techniques of environmental management with new robustness. From the perspective of Darwinian evolution, we can expect our disposition to cooperate to increase as our perception of the problems challenging our wellbeing also increases. This is the scientific finding of Samuel Bowles and Herbert Gintis, in their important study of human social evolution, A Cooperative Species – Human Reciprocity and its Evolution (Princeton University Press, 2011). From the perspective of ecology, we can learn what it takes to enhance our species’ reliance on resilience. Prospects for this are noted by B. Walker & D. Salt in Resilience Thinking and by (B. Walker, S.R. Carpenter & A. Kinzig in “Resilience, Adaptability & Transformability in Socio-Ecological Systems,” in Ecology & Society (9) (2), which may be accessed at www.ecologyandsociety.org/vol9/iss2/art5/ ).

Environmental law as a field should embrace evolutionary knowledge, in order to fashion the legal tools by which humans can redefine realistically what constitutes sustainable societies, and how the law can to induce an orderly shift from “business as usual” to the new conditions of the Anthropocene. In 2005, the United Nations Development Programme described resilience as: “a tendency to maintain integrity when subject to disturbance”

www.safecoast.org/editor/database/File/OECD%20Adapting%20to%20climate%20change.pdf).

The irreducible human and ecological characteristics of integrity are what matter today. The visions of “sustainable development” in Agenda 21 have been overtaken by events. Past prescriptions for sustainable development are becoming obsolete. If nations are to maintain their cultural values and social norms, observe human rights, and restore environmental integrity in the coming decades, they will need to fashion new legal instruments and adapt existing ones. This paper examines how to do so. Fundamentally, societies will need to enhance “the rule of law,” securing honest and open governance. Rio Principle 10 is being nourished by the world-wide trends establishing environmental courts and tribunals, such as India is doing through its Green Tribunals Act, or in China, which has more than 50 environmental courts in 14 Provinces, or in The Philippines, which has environmental courts and has established the Writ of Kalikasan (Nature) to facilitate vindicating environmental rights.

With stable governance, societies can enact legislation making risk assessment and sustainable recovery routine. Societies will need robust and resilient administrative systems to recover after environmental disturbances, and they cannot simply rely upon ad hoc disaster relief impulses. It will be essential for legal reforms to strengthen the environmental impact assessment (EIA) regimes of Rio Declaration Principle 17, and to implement Rio Principles 3 and 16 through establishment of insurance systems. Insurance law can enable both public and private interests to finance recovery after suffering damage, as by floods. Mutual, cooperative, insurance systems have a successful and proven history. Insurance is itself resilient, the cost of paying insurance premiums also induces precaution, and is a kind of shadow pricing of the risks and externalities addressed by the insurance. Moreover, fiscal reforms to avert excessive risk-taking by the world’s financial sectors will also be essential; there is no longer space or time for a “gap” between the “economy of nature” and the “economy of man.” Treaties that adopt Tobin tax regimes can ensure that the finance sector contributes to financing the adaptations to a new kind of sustainable society, in an environment which resets ecological integrity.

Today international world order is itself at a crossroad, not merely environmental law. At this indelible inflection point in time, environmental law can be the regime that enables human civilization to adapt to the Anthropocene Epoch.

Legislations and Legal Liability of Climate Change in China

Deng Haifeng — Tue, 03 Jul 2012 14:40:00 PDT

There is no law directly aim at climate change in China currently. The existing rules and regulations of climate change basically include three parts: the first part is policies, such as China’s National Climate Change Program. The second part is legislations, including the contents of environmental protection, climate change, energy saving and emission reduction, which are stipulated in constitutional law, basic law of environmental protection, laws on energy utilization, specific laws of environmental protection, regulations and government rules. The last part is initiatives from civil society. These legislations of climate change stipulate relevant legal liability, including public law liability and private law liability. The public law liability contains administrative liability stipulated in laws on energy utilization, specific laws of environmental protection, and criminal liability stipulated in criminal law. The private law liability is mainly environmental tort liability.

Sustainable Development and Climate Change: Challenges and Opportunities for International Law

Tanzim Afroz — Tue, 03 Jul 2012 14:40:00 PDT

Up to recent years, international legal regime dealt with sustainable development and climate change responses as separate issues. Both the issues are covered under separate legal frameworks of the United Nations’ Agenda 21 and the United Nations Framework Convention on Climate Change (UNFCCC). But these two issues are deeply interrelated. As for example, the capacity to mitigate and adapt to climate change, and the associated mitigation and adaptation costs, depend critically upon the underlying development policies, which in turn significantly influences sustainable development policies and actions. The lack of coherency between developing strategies and climate strategies is intensifying climate vulnerabilities, leading to insufficient climate and development financial commitments, and ultimately putting development in a state of crisis and international climate negotiations at a dead end. So it is high time to recognise the linkage and close relationship between these two issues and address them at policy level. In the same way, ‘adaptation’ and ‘mitigation’ as the response of climate change are dealt as separate strategies for developed and developing countries. It is visible from the policy recommendations of the Kyoto Protocol (1997), the Bali Roadmap (2007) and the Copenhagen Accord (2009). But this separation, in many ways has been proven illogical during implementation of the projects. As for example, coastal rehabilitation with mangroves, hits various facets of mitigation and adaptation together. So the nexus of these two also now needs sorting throw. In this context, the finding of this paper is that unless mitigation, adaptation and development strategies are integrated at international policy level, this will pursue strategies for different nationals that solve one problem but aggravates others. The paper also scrutinises how to make a coherency between developing strategies and climate strategies at policy level and recommends for a ‘climate-development integrated approach’. This is such an approach that ensures climate-compatible development; a development to minimize the harm caused by climate impacts, while maximizing the many human development opportunities by low emissions and more resilient future. Finally, the paper considers possible law and policy alternatives to ensure ‘triple win’ strategies that result in low emissions, build resilience and promote development simultaneously.

Using Law to Advance Sustainability: The Law of Sustainable Development

Carla D. Aceves-Avila — Tue, 03 Jul 2012 14:40:00 PDT

Sustainability and law as a social tool behold linkages that strengthen one another, although this conjunction is frail when analyzed under the typical standards and paradigm of most contemporary legal systems.

The role of law under sustainability must be carefully profiled and differentiated as compared to the rest of legal rules. Even though it is true that all legal rules are created and implemented with the main purpose of improving human interaction, the role of law oriented towards sustainability should be the protection and preservation of natural resources, elements, as well as the conditions associated to these in order to guarantee the development and well being of the human race.

As it has been declared by other environmental law scholars, there should be a “sustainable development law”, referring to the fact that certain sustainability based main principles should be introduced and recognized considering that the largest and most widely spread legal systems were unable to recognize them. The identity of a new legal paradigm strongly based on the current environmental paradigm should be recognized and legal systems throughout the globe should implement and enforce it in order to assure a sustainable development approach through law.

Any argument of modern environmental law should be based in several focal aspects that will be identified, reasoned and proposed in this paper, as well as this proposed identity and character of the modern legal paradigm which embraces and strengthens sustainability.