Andrew Green
The Time Has Come: The Intersection of Law, Time and Climate Change
Time poses a challenge to climate change law and policy -- how can we design our laws and institutions to induce sufficient action now to take account of past emissions and future harms? The relationship between the courts and the other main institutional players -- the legislature, the executive and the markets -- provides opportunities to foster delay or to build in commitment to action. Courts can use principles of deference and justiciability to alter the power of current judges, influence of past versus current legislators or administrative decision-makers. Legislators can promote future action through targets or accountability mechanisms or delay change through grandfathering. Market mechanisms like carbon pricing and subsidies also reflect whose view of time matters. This paper examines interplay between time and climate action, focusing on how policies and legal rules influences who has a say in the pace and stringency of action.
Jonathan Nash & Alyssa King
Climate Change Nuisance Litigation in the U.S. and Canada: Emulation and Divergence
This paper examines nuisance litigation against oil producers in the US and Canada. Landowners, including municipalities, have brought suits against oil producers alleging nuisance based on the effects of climate change. The trend began in the United States but has been emulated in Canada. There are, however, important differences. The United States relies on judicial federalism: each state has a court system, with a separate federal judiciary. Litigants are often afforded a choice of forum; both plaintiffs and defendants can have input on that choice. Forum choice has figured prominently in U.S. litigation of climate nuisance cases. In Canada opportunities for forum selection and shopping are fewer. The test for personal jurisdiction also varies between the countries. New U.S. limitations may limit the ability of courts to assert proper jurisdiction over defendant corporations. The Canadian test for personal jurisdiction differs from its U.S. counterpart, opening different possibilities for climate litigation.
Erik Knutsen
Green Insurance Claims: How Liability Insurers can Propel Climate Change Action
Liability insurance, as a social institution that spreads risk, has the potential to prompt public and private actors to address climate change issues. Liability insurance is also the backbone of the private law tort system. While tort liability can act as a behavioural incentive, the impact is muted by liability insurance. Insurance, however, also incentivizes climate responsive behaviour through both pricing and product conditions: less risky products are cheaper, and people alter their behaviour to remain within coverage. These incentives influence the risk-based actions of policyholders, including public, governmental entities insured by private insurance. Policyholders are increasingly facing climate-based litigation for issues around emissions and pollution. With these "green torts" come "green claims": novel climate-change-based liability insurance claims. The response of liability insurers will affect legal doctrine, the range of available insurance products, disputes around causation and application of existing insurance to green claims and potentially spur innovation in insurance.
