Studies of climate change litigation have proliferated over the past two decades, as lawsuits across the world increasingly bring policy debates about climate change mitigation and adaptation, as well as climate change‐related loss and damage to the attention of courts. We systematically identify 130 articles on climate change litigation published in English in the law and social sciences between 2000 and 2018 to identify research trajectories. In addition to a budding interdisciplinarity in scholarly interest in climate change litigation we also document a growing understanding of the full spectrum of actors involved and implicated in climate lawsuits and the range of motivations and/or strategic imperatives underpinning their engagement with the law. Situating this within the broader academic literature on the topic we then highlight a number of cutting edge trends and opportunities for future research. Four emerging themes are explored in detail: the relationship between litigation and governance; how time and scale feature in climate litigation; the role of science; and what has been coined the “human rights turn” in climate change litigation. We highlight the limits of existing work and the need for future research—not limited to legal scholarship—to evaluate the impact of both regulatory and anti‐regulatory climate‐related lawsuits, and to explore a wider set of jurisdictions, actors and themes. Addressing these issues and questions will help to develop a deeper understanding of the conditions under which litigation will strengthen or undermine climate governance. This article is categorized under: Policy and Governance > Multilevel and Transnational Climate Change Governance

/pdf/climate-change-litigation-a-review-of-research-on-courts-and-9hvxubvhdw.pdf

Climate change litigation: A review of research on courts and litigants in climate governance

Markets allegedly are ideal institutions for managing water both nationally and internationally. Markets are presented as functioning automatically and nearly painlessly. As a result, they are much in vogue among policy makers today. True markets, however, have seldom existed for water rights and there are good reasons for believing that they seldom will. Water is an ambient resource where the actions of any one user necessarily affect many other users. Thus, if true markets are to be relied on to allocate for particular uses and distribute water among users, the transaction costs of organizing contracts with all holders of water rights (let alone those holding less formal claims affected by a sale or lease) generally have been and will be prohibitive. Water, in short, is the quintessential public good for which markets simply do not work. This paper explores the nature of markets and the forms of property developed for the rights to use water, beginning by explaining why water has customarily been treated as a public good. The paper then explains why treating water as common property leads into a tragic over exploitation as soon as water becomes a scarce commodity, and goes on to describe the market failures that are characteristic of treating the right to use water as private property. The paper then explores the California Water Bank, often described as proving that markets for water work, but finding instead regulation masquerading as a market. As Confucius reminds us, if we do not get the names right, we cannot expect affairs to be in order. Finally, the paper presents the "regulated riparian" mode of water management that operates on the basis that water is a form of inherently public property about which basic allocation distribution decisions must be made by public agencies. The paper concludes that various economic incentives, including fees, taxes, and "water banks," have a useful role to play in managing public property, but that true markets must remain a phenomenon marginal to the enterprise of managing large quantities of water for the benefit of numerous users.

/pdf/the-importance-of-getting-names-right-the-myth-of-markets-18o9h9b2hp.pdf

The Importance of Getting Names Right: The Myth of Markets for Water

This thesis will be a historical and comparative treatment of the way law has been applied in both an assimilative and proscriptive manner to destroy Indian religions in the United States and Canada. By producing the first such comparison, it is hoped that the emphasis on different outcomes may promote the cross-border adoption of alternative legal strategies, and ultimately provide something that may have potential as advocacy.
The Nineteenth Century saw attempts by the North American governments, often motivated by revulsion, to homogenise their native populations with illegitimate, often illegal and sometimes un-constitutional laws, aimed at the suppression of their religions. In the Twentieth Century there was less overt proscription but rather an acquisitive attitude to native cultural and sacred artefacts which continues to have a destructive impact on their religious practices. Although there have been sporadic attempts to reverse this treatment by repatriating some of these objects, such gestures have come at little governmental cost. It is the continuing restrictions on Indian prayer at sacred sites, often motivated by opposing commercial interests, which reveal the true extent of the forfeit the governments are prepared to pay.
An essential part of this study will be an investigation into how international legal doctrines that were ultimately derived from Christianity were introduced into North America to deprive the indigenous peoples of their legal rights. International Law on indigenous peoples will then be re-examined in the present era for doctrines that can be re-incorporated in order to reverse this colonisation. The seminal United Nations Declaration on Indigenous Peoples (2007), together with other more substantive and binding International Law, will be critically assessed for their potential to bolster domestic law and its ambivalent attitude to Indian religious freedom.

The use of law in the destruction of indigenous religions in Canada and the United States : a comparative perspective

/pdf/judges-and-scholars-do-courts-and-scholarly-journals-cite-pz4z4ajecv.pdf

Judges and Scholars: Do Courts and Scholarly Journals Cite the Same Law Review Articles

New directions contained in section 2(2) of the Canada National Parks Act 2000 and section 4 of Aotearoa New Zealand’s Conservation Act 1987 pose a strong challenge to the 21 st century concept of the national park. Section 2(2) states: “For greater certainty, nothing in this Act shall be construed so as to abrogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act 1982”. Section 35 reads: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” In Aotearoa New Zealand, section 4 of the Conservation Act 1987 (the umbrella statute to the National Parks Act 1980) states: “This Act shall so be interpreted and administered as to give effect to the principles of the Treaty of Waitangi”. These sections demand respect for Indigenous peoples and their relationships with land encased in national parks. This challenge frames the primary questions explored in this study. They are: if there is a new commitment to recognising Indigenous peoples in law, what ought this to mean in the context of owning and managing national parks? Or, to situate the question more theoretically, and examine it through the lens of law and geography: if law made colonial space permissible, what are the implications if contemporary law recalibrates its orientation to space and belatedly recognises Indigenous place? Interwoven into exploring these core questions are

http://dspace.library.uvic.ca:8080/bitstream/handle/1828/3965/ruru_jacinta_phd_2012.pdf?sequence=6

Settling Indigenous place: reconciling legal fictions in governing Canada and Aotearoa New Zealand's national parks.

Indigenous peoples’ collective right to their land and territories is the most controversial of all human rights issues. . . . Control over indigenous lands, water and resources is also by far the issue that gives rise to most violent conflicts and to human rights violations committed by governments, police, mining companies, logging companies, etc. — International Working Group for Indigenous Affairs, June 2005

/pdf/sovereignty-self-determination-and-environment-based-4982wq944p.pdf

Sovereignty, Self-determination, and Environment-based Cultures: The Emerging Voice of Indigenous Peoples in International Law

/pdf/clearing-muddy-waters-anatomy-of-the-comprehensive-general-aa38nc0hki.pdf

Clearing Muddy Waters: Anatomy of the Comprehensive General Liability Pollution Exclusion

The Owl, the Indian, the Feminist, and the Brother: Environmentalism Encounters the Social Justice Movements

This article discusses the status of federal common law in the wake of the Supreme Court's May, 2013 denial of petitioners' writ of certiorari in Native Village of Kivalina v. Exxonmobil.  A close reading of Supreme Court and recent appellate decisions on federal common law as applied to transboundary pollution reveals three views on the availability and function of federal common law where a federal statute addresses a category of environmental harms: presumptive displacement of federal common law when a federal statute creates a regulatory approach, presumptive coexistence of federal statutory and common law where a federal statute does not provide relief for injuries alleged under common law, and case-by-case balancing of the interfering effect of federal common law against the injuries left unaddressed by federal statutory law.  The Court’s current approach resides somewhere between presumptive displacement and case-by-case balancing, and although the Court offers various rationales for this approach in its latest federal common law opinion, the most convincing of these is that cases involving transboundary pollution, particularly those alleging global warming-induced injury, are cumbersome for federal courts to handle as common law matters.  Allocation of judicial resources is within the Supreme Court's discretion to consider in rejecting a case, but it is a far more pragmatic than principled rationale, and thus less than satisfying as a court’s primary reason for denying relief.  A more principled approach, advocated by Justices Stevens and Blackmun in dissents to two key federal common law cases, is that the displacement analysis should begin with the premise that the judicial system aims, first and foremost, to compensate the injured, and that a federal common law claim should be displaced only where the legislative-regulatory regime covering the subject of a common law claim directly addresses the injury alleged under common law.

http://pjephl.law.pitt.edu/ojs/index.php/pjephl/article/download/72/60

Kivalina at the Supreme Court: A Lost Opportunity for Federal Common Law

/pdf/natural-resource-damages-from-rachel-carson-s-perspective-a-8s9jiuhsww.pdf

Natural Resource Damages from Rachel Carson's Perspective: A Rite of Spring in American Environmentalism

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