Environmental Law Review Syndicate

By Bonnie Smith, Staff Editor, Vermont Journal of Environmental Law.

This post is part of the Environmental Law Review Syndicate. The original post will be available on VJEL’s website later today.

For the first time in the history of international climate negotiations, adaptation has its own article in a legal text. Even more striking is that loss and damage, historically treated as a component of adaptation, does too. For many years, negotiations concerning adaptation and loss and damage have been contentious between developed countries, which prioritize mitigation over adaptation and loss and damage, and developing countries uniquely vulnerable to the impacts of climate change. Chronicling the controversial discussions and negotiations leading up to these monumental Paris Agreement articles reveals still-existing tensions between Parties to the Agreement. It also sheds light on negotiable points for future Conferences of the Parties (“COPs”).

Adaptation, mitigation, and loss and damage are three interconnected concepts pertaining to climate change. Defined simply, “adaptation” is the “adjustment of behaviour to limit harm, or exploit beneficial opportunities, arising from actual or expected climate change.” In contrast, “mitigation” seeks to limit climate change, primarily by reducing greenhouse gas emissions. “Loss and damage” encompasses the costs associated with climate impacts that adaptation and mitigation cannot prevent.

This article will begin comparing the historical treatment of adaptation and loss and damage with mitigation in the context of international climate change negotiations. Then, the article will analyze the Paris Agreement’s treatment of adaptation and loss and damage.

By Olivier Jamin, Online Journal Editor, Environmental Law (Lewis & Clark Law School)

This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.

Introduction

The public trust doctrine (PTD) is a concept under which states have the duty to preserve certain natural and cultural resources for the benefit of the public. The PTD is a common law doctrine, and state courts around the country have spent the last three decades applying — and in some cases rejecting — it to a variety of natural resources. For example, the New Jersey Supreme Court applied the PTD to beaches and shores, the California Supreme Court applied it to navigable streams and their tributaries, and the U.S. Supreme Court has held that states own fish and game within their borders on behalf of their citizens, a position followed by many states. However, the most traditional application of the PTD has been to tidal and submerged lands. Oregon has been slow to develop its application of the PTD, as illustrates the lack of case law. Professor Blumm explains that although Oregon courts have repeatedly announced broad public rights in all waters of the state, the courts have not addressed the PTD since 1979. Last year however, the PTD was the topic of a circuit court opinion in Lane County that could mandate the Oregon Supreme Court to define precisely the extent of the doctrine in the state. The decision is highly controversial as it constitutes one of the most restrictive approach to the PTD, as to its scope and duties. The plaintiffs, Kelsey Juliana and Olivia Chernaik, represented by Our Children’s Trust, a non-profit organization advocating for greater reduction of CO2 emissions, appealed the decision last summer, gathering support from local law professors. Because the decision gave an erroneous overview of the PTD in Oregon, the court of appeals, and possibly the Supreme Court should seize on this opportunity to clarify the scope of the doctrine in the state.

By Maryam Al-Dabbagh, Graduate Editor of the NYU Environmental Law Journal

This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.

In the lead-up to the Paris talks, the issue of loss and damage (L&D) was portrayed to be one of the biggest hurdles in the quest for an agreement. L&D had already suffered multiple drawbacks in previous talks, such as the mass walkout by G-77 countries at COP19 in Warsaw in protest of the response by developed countries to their demands for L&D. Surprisingly, no similar issues occurred in Paris; instead, the agreement articulated a middle path between the seemingly divergent aims of developing and developed countries. This paper will trace that path through an analysis of the L&D articles of the agreement, and set forth the headway as well as the challenges that should be expected in coming years.

By Helen Marie Berg, General Member, Michigan Journal of Environmental & Administrative Law

This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.

In January 2016, Michigan Governor Rick Snyder appealed to the federal government for a $96 million emergency aid grant in response to the tremendous and growing public health crisis in Flint, Michigan. City and state officials caused the crisis. They decided to switch the city’s drinking water source from Lake Huron to the Flint River, but failed to add the proper anti-corrosion treatment to the lead pipes that distribute water to the city’s 100,000 residents. That decision caused the lead to leach from the pipes, ultimately poisoning all who drank the city’s water.

Governor Snyder’s request was not only for funds, but for President Obama to declare that the crisis in Flint was legally a disaster—a prerequisite for such an allocation of money and for eligibility for certain government programs. The headline of an article in the Detroit News shortly after Snyder’s request read: “Obama gives $80 million to Michigan for Flint.” Though it sounds hopeful, this headline is misleading.

President Obama declared a federal emergency in Flint—but not a disaster. The Robert T. Stafford Disaster Relief and Emergency Assistance Act of 1988 was enacted “to support State and local governments and their citizens when disasters overwhelm them.” The Act outlines the process to receive a presidential disaster declaration that would activate “an array of Federal programs to assist in the response and recovery effort.” Governor Snyder’s request for such a presidential disaster declaration was denied. He appealed the decision immediately—only for it to be denied again two days later.

By Will Grossenbacher, Editor-in-Chief, Virginia Environmental Law Journal

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From October 2–5, 2015, the State of South Carolina, and the City of Charleston in particular, experienced historic rains: sites in the Charleston area reported up to twenty-six inches of rain. The downpour combined with high tides to create flooding that closed dozens of streets throughout the City. Then, at the end of October, Charleston experienced the fourth-highest tide ever recorded in the City. Persistent winds combined with the bi-monthly spring tide to create a high tide that reached 8.7 feet above mean lower low water level in Charleston Harbor. The two unrelated events in the same month show just how vulnerable the City is to flooding. When rising sea levels and other climate-change-induced flooding are added to the mix, the flood risk will only increase, especially for the Charleston’s numerous historic properties.

Charleston is a city rich in historic resources. In fact, the City’s Historic District contains more than 1400 “historically significant buildings.” Additionally, of the seventy-seven National Historic Landmarks (“NHLs”) in the State of South Carolina, thirty-three are located in Charleston. While the City of Charleston has begun working to address flooding issues, it has yet to address specific climate-change-related threats to its historic resources. Charleston should therefore look to the example provided by other coastal cities and begin implementing law and policy changes designed at protecting historic resources from the impacts of global climate change.