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Volume 42, Issue 12 — December 2012


The Kyoto Protocol’s Emissions Trading Scheme: Realistic or Unjust Solution for Potential Developing Nation Signatories?.

by Deepa Badrinarayana

Divergent legal obligations among major greenhouse gas emitters are a roadblock to establishing an effective climate change mitigation treaty. The United States, and now Canada, Japan, and Russia, have rejected time-bound, legally binding emissions reduction obligations unless major developing country emitters such as China and India undertake comparable binding obligations to reduce their emissions. While scholars and policymakers have considered arguments for including all major emitters, the legal capacity of developing countries to participate and implement market mechanism solutions under the Kyoto Protocol has received little attention. Even if developing countries were to sign the Protocol, they lack the legal and administrative capacity to implement the emissions trading scheme, which is a core solution to climate change mitigation under the Protocol.

Litigating Climate Change Adaptation: Theory, Practice, and Corrective (Climate) Justice

by Maxine Burkett

The Supreme Court’s decision in American Electric Power v. Connecticut appeared to affirm what many legal scholars have argued: that tort law is not a suitable or effective means to address climate change. While it did close a valuable door for plaintiffs seeking to advance the “carbon tort,” it did not represent the end of tort law’s role in providing relief for those whom climate change impacts now and into the future. Tort law can address climate impacts directly, by spurring compensation for harms incurred, and indirectly, by galvanizing both mitigation and adaptation measures to avoid the threat of liability. The key is finding the appropriate defendants—ones with whom the common law is quite familiar. Particularly for the most vulnerable, the virtues of corrective justice and civil recourse—core goals of tort law—are especially meaningful and are key first steps in more transformative legal approaches to the climate crisis.

Domestic Climate Change Adaptation and Equity

by Alice Kaswan

Scientists are virtually certain that climate change will lead to sea-level rise, more extreme storms, heat waves, wildfires, changing weather patterns, and the spread of disease. Reducing greenhouse gas emissions is necessary, but not sufficient. Global, national, and subnational adaptation measures to reduce climate harm are essential. Because the consequences of increased disasters, long-term impacts on habitability, and public health threats will not fall equally around the globe or within the United States, equity considerations should play a vital role in emerging U.S. adaptation initiatives. Seven principles for achieving equitable adaptation are suggested, principles designed to improve substantive outcomes, ensure meaningful participation, and address underlying socioeconomic conditions.

The Environmental Implications of China’s Engagement With Sub-Saharan Africa

by Ruth Gordon

Since the turn of the millennium, China has become an increasingly important economic and political power in Sub-Saharan Africa. Although China has unequivocally come in search of natural resources, its mission is undoubtedly deeper, broader, and more considerable, given the establishment of institutional mechanisms such as the Forum on China Africa Cooperation. China has come with new development modalities, but also with a poor environmental record. This has meant increased investment and trade for African nations, as well as serious environmental challenges that must be addressed. China is also determined to become a leader in green technologies, and Africa is one of its testing grounds. This holds the promise of modernization that does not put additional pressures on our already fragile environment; a development the international community should applaud.


Emerging EPA Regulation of Pharmaceuticals in the Environment

by Gabriel Eckstein

The May 25, 2012, report—entitled EPA Inaction in Identifying Hazardous Waste Pharmaceuticals May Result in Unsafe Disposal—disapproved of EPA’s lack of progress in determining
whether certain pharmaceuticals found in surface, ground, and drinking water qualify as hazardous waste, as well as in establishing an evaluation and regulatory process for pharmaceutical wastes. As a result of the report, EPA is now considering mechanisms for assessing and regulating the presence of certain pharmaceutical products in the environment as hazardous wastes under the Resource Conservation and Recovery Act.


Supreme Court Review and Preview: NFIB v. Sebelius and Sackett v. EPA

by John C. Cruden, Laurence H. Tribe, and Richard J. Lazarus

Each October, the U.S. Supreme Court begins a new term. And each year, the Environmental Law Institute convenes a national seminar with some of the preeminent experts on the Supreme Court and environmental law to examine the potential significance for environmental law of both the Court’s rulings from its past term, as well as the cases already on the Court’s docket for its new term. This year’s panel, co-sponsored by Harvard Law School, was held on October 25, 2012, in Cambridge, Massachusetts. The panel discussed the Court’s ruling in National Federation of Independent Business v. Sebelius and its potential significance for environmental lawyers, likely rulings in a series of Clean Water Act cases decided last term and to be argued this term, and several other environmental cases pending before the Court.