Nwapi, Chilenye, From Responsibility to Cost-Effectiveness to Litigation: The Evolution of Climate Change Regulation and the Emergence of Climate Justice Litigation (December 2016). In Randall Abate, ed, Climate Justice: Case Studies in Global and Regional Governance Challenges (Washington, DC: Environmental Law Institute, 2016) at 517-542. Available for download at SSRN: https://ssrn.com/abstract=2876777
“A review of climate change regulation reveals three historical ages: the age of responsibility, the age of cost-effectiveness, and the age of litigation. The age of responsibility refers to the “common but differentiated responsibility” (CBDR) principle characterized by political declarations affirming the recognition that climate change was a global problem. The age of cost effectiveness produced ideas like “joint implementation,” the “clean development mechanism,” and “emissions trading.” The age of litigation is characterized by lawsuits in both domestic and regional forums seeking either judicial review of administrative decisions concerning climate change or compensatory relief against contributors to climate change. The age of responsibility has passed, despite the continuing relevance of CBDR declarations in important legal instruments addressing climate change. The age of cost effectiveness is on its way out. The age of litigation has been ushered in and is here to stay for the foreseeable future, despite the challenging issues of causation and proof that climate change litigation involves. This chapter reviews these three trends, highlights the factors that necessitated their emergence, takes stock of their gains and shortcomings, and argues that each approach has played an important role in the quest for climate justice. It highlights the significance of the Paris Agreement for the continued relevance of the responsibility and cost-effectiveness principles. It also highlights the role that climate change litigation has played in the quest for climate justice, a role that reflects the frustration faced by certain segments of actors, such as indigenous communities and environmental non-governmental organizations, due to the failure of the international community to act proactively to support its declared recognition of the urgent action that is needed to address global warming.”