Faculty Scholarship Digest
Cinnamon P. Carlarne, Arctic Dreams and Geoengineering Wishes: The Collateral Damage of Climate Change, 49 Colum. J. Transnational L. 602 (2011).
This article closely examines two “collateral” problems that have arisen as a result of climate change from a governance perspective—specifically, the “fundamental gaps in existing systems of global governance” these new problems expose—and offer insight into the substantive and procedural ways forward in starting to address those gaps. In doing so, the article makes important contributions related to environmental law, international law, and the governance literature in a single package. Each of these is discussed in great detail.
The first problem is the area of the Arctic Ocean that is not covered by current international governance agreements. Climate change is rapidly melting sea ice, which will provide potential “new access to deep sea resources and new shipping routes, creating a series of new governance challenges related to maritime access, ecosystem management, the well-being of indigenous peoples and safety and environmental issues surrounding the growth of the Arctic tourism industry.” The article reviews the history of Arctic governance, identifies the gaps for the climate-change-affected world and analyzes both ideal and realistic paths forward (unfortunately, as is so often the case, the two are not the same), with the former involving a comprehensive new international treaty and the latter a stewardship regime built on existing structures. The second problem is the area of geoengineering which, unlike the incomplete regime of the Arctic Ocean, faces “for all practical purposes, the complete absence of a governance regime.” While this absence presents some greater challenges (incremental governance solutions are not available) the article also identifies consequent opportunities for multilateral consideration of “rights and responsibilities in respect to management of the global commons,” and suggests some principles that might emerge as a result of such consideration.
Cinnamon Carlarne (w/Daniel Farber), Law Beyond Borders: Transnational Responses to Global Environmental Issues, 1 TRANSNATIONAL ENVIRONMENTAL L. 13 (2012).
This article is an “editorial” in the first issue of a new journal published by Cambridge University Press devoted to the emerging field of transnational environmental law. Cinnamon is one of two American editors of the journal (Dan Farber, Univ. Cal. Berkeley, is the other), and they are joined by faculty from the London School of Economics, VU University of Amsterdam, University of Hong Kong, and University College London in this endeavor. Transnational environmental law studies how environmental law responds to the global nature of today’s environmental issues, with attention to law that does not come from “states” (e.g., European Union law) and, as some of the editors explain, to “the prominence of private actors as entities with some claim to legal and regulatory authority.” This peer-reviewed journal will be a leading platform in this rapidly growing field, creating “a space for bringing together the sometimes bifurcated bodies of literature exploring domestic and international environmental law,” as well as “‘the multilevel governance context in which contemporary environmental law unfolds.’”
After discussing the meaning and importance of the transnational perspective, Cinnamon and her co-author discuss global climate change as an issue that “cries out for a transnational analysis.” It is a global problem that stems from local sources and that “slices across traditional boundaries” in so many ways. Climate change also presents governance challenges, particularly in the area of climate change adaptation (climate change is happening so, while mitigation is one issue, dealing with it—“adaption planning”—is gaining prominence). Unlike mitigation efforts, which address a collective-action problem by centralized, top-down responses, adaptation “will require greater diversification and, often, decentralization of decision-making authority,” development of which is clearly a transnational concern. Cinnamon and her co-author discuss some of the tools theory can bring to this endeavor and the related contributions of the articles that are in this first issue of the journal.
Cinnamon Carlarne (w/ Thijs Etty et al.), Norms, Networks, and Markets: Navigating New Frontiers in Transnational Environmental Law, 2 Transnat’l Envtl. L. 203 (2013).
Professor Cinnamon Carlarne serves on the Editorial Board of the Cambridge peer-reviewed journal, Transnational Environmental Law (TEL). TEL is a new journal designed for the broad, interdisciplinary study of environmental law and governance beyond the state, such as the contribution of non-state actors and multi-level governance. In this editorial, Carlarne and the rest of the Editorial Board reflect on how the articles in this issue serve as a framing mechanism for exploring the ways that “traditional and novel systems for environmental protection emerge, evolve, and intersect.” Part of the issue is composed of three symposium pieces exploring the legal and political questions that arise in the context of ecosystem services, specifically using markets to effectively and ethically protect environmental resources. The editorial continues to describe the remaining articles. These include a thought-provoking critique of the fragmented system of international environmental law which has given rise to the Anthropocene—a new geological era where humans are the primary driver of environmental change. Also summarized is a piece exploring socially responsible investment and the complexities of harnessing market forces to further environmental protection. The editorial rounds out with description of the remaining two articles, one focusing on transnational environmental crime and the lack of adequate tools for preventing it, and the other providing a sobering account of the EU Chemicals Regulation and the new accountability challenges presented for the judiciary. The editorial concludes that environmental lawyers and scholars face emerging challenges at every level and the hope that the issue will encourage critical thought about the systems of transnational environmental law.
Cinnamon P. Carlarne, Rethinking a Failing Framework: Adaptation and Institutional Rebirth for the Global Climate Change Regime, 25 Geo. Int'l Envtl. L. Rev. 1 (2012).
Professor Cinnamon Carlarne cleverly adapts the Kubler-Ross five stages of grief and applies it to the pursuit of a single, consensus-based, comprehensive international climate change treaty. The promise of global climate negotiations illustrated by the United Nations Framework Convention on Climate Change (UNFCCC) adopted twenty years ago leads to the Kyoto Protocol and the first stage of grieving—denial. While the U.S. was the chief architect of the Protocol, we also refused to ratify it and continued as the world’s largest global polluter. Denial turned to anger at the U.S. at the Bali Conference in 2007 for our failure to support the Kyoto Protocol and obstructionist tactics. Anger gives way to bargaining as the world’s chief polluters—U.S., China, India, and Brazil—all signaled a willingness to negotiate at the Copenhagen Conference in 2009. Unfortunately, the presence of the heads of state at the conference created a “snarling, aggravated, chaotic event” that ultimately produced an accord drafted by the heads of state in a private meeting, bypassing the traditional multilateral consensus approach. In the aftermath of Copenhagen, depression settles in over the failure to produce a legally binding agreement on emissions reduction obligations. Finally, we reach acceptance that a comprehensive multilateral agreement is dead with the Cancun Agreements of 2010 and the Durban Platform in 2011 and their steps toward a new decentralized effort to mitigate climate change. This is a masterful narrative of the rise and fall of the quest for “The Treaty.” Carlarne goes on to describe a theoretically rich and practical vision for the future that centers around adaptation and multi-level governance. Adaptation includes all the efforts undertaken at multiple levels of governance to prepare for climate change (both maximizing advantages and minimizing damages from it). Carlarne finds a pluralistic and polycentric approach to climate change governance attractive, while preserving a role for international governmental organizations and even UNFCCC serving as partner or coordinator for otherwise diffuse efforts.
Oceans and Human Health: Implications for Society and Well-Being (Robert E. Bowen, Michael H. Depledge, Cinnamon P. Carlarne & Lora E. Fleming eds., 2014).
In this elegant, interdisciplinary, international volume, Cinnamon and her co-editors assemble a broad array of scholars to provide a deep examination of the interrelation of the oceans and human health and the consequent impacts of environmental changes (such as climate change) on human health as a result of their impact on the oceans. Each chapter includes its own detailed bibliography and accessible charts and boxes to convey information in a reader-friendly way (the massive scope of the editorial task is immediately apparent). From the choices of recreational fisherman, to sea levels over the past 240,000 years, to observation systems for human exposure to waterborne pathogens (think toxic shellfish), there is extraordinary coverage here. Cinnamon herself is co-author of the final chapter which looks at regulatory responses and the potential for reform.
Cinnamon P. Carlarne & John S. Carlarne, Globalization and Human Health: Regulatory Response and the Potential for Reform, in Oceans and Human Health: Implications for Society and Well-Being 231-263 (Robert E. Bowen, Michael H. Depledge, Cinnamon P. Carlarne & Lora E. Fleming eds., 2014).
In this concluding chapter of a new volume Cinnamon co-edited, Cinnamon and her co-author discuss a fundamental problem that has been a core component of Cinnamon’s research: international governance as it relates to climate change and its impacts---here on oceans and human health. In a nutshell, “while international law carves out legal rights and protections for human health and offers a plethora of mechanisms for determining rights and responsibilities with regards to ocean and coastal ecosystems, it fails to provide effective mechanisms for responding to the intimate relationship between the health of our ocean ecosystems and the health and well-being of the humans who rely upon these ecosystems.” The complexity of this challenge is staggering. As background, the chapter surveys not only some of the major pieces of positive law involved but alsothe challenges for governance, such as fragmentation, global social change and institutional capacity. Having documented the inadequacy of existing systems, the authors chart a course forward. The chapter offers a new frame of “vulnerability” to the discussion of transnationalism and provides a discussion of “networks of vulnerability” for framing governance issues. In sum, “there is not just one path forward, but rather multiple routes that must be followed,” most critically (though that phrase itself diminishes the complexity; the point of the chapter and the book is that more than a single “most critical” item must be addressed): “revitalizing efforts to improve systems of international governance, and refining efforts to improve and/or create systems of transnational governance.”
Cinnamon Carlarne (w/Josh Eagle), Food Security, Fisheries, and Ecosystems, in Michael B. Gerrard & Katrina Fischer Kuh eds. THE LAW OF ADAPTION TO CLIMATE CHANGE, U.S. AND INT’L ASPECTS (ABA 2012).
In this chapter, Cinnamon and her co-author discusses the challenges for global food security and the added challenge posed by climate change and both the current and needed state of adaptive measure to respond. The second section of the chapter then focuses on a particular source of food—the international fisheries that span the world’s oceans—a food source that is especially vulnerable to climate change impacts. It is not a happy picture, as adaption measures are still in their infancy but “must progress rapidly at both the global and local levels in order to salvage an already vulnerable food system.”
“Food security” constitutes an aggregation of issues: food availability, food accessibility, food utilization, and food system stablity. The chapter examines existing international structures for addressing both traditional and climate-change related threats to food security. While “[i]nternational institutions will continue to define the parameters of the food security debate and to determine the . . . policies that shape the critical drivers of food security . . . , the effects of the . . . crisis will be felt most immediately and dramatically at the local level by the world’s most vulnerable—the poorest of the poor.” So both global and local reform are necessary. The specific example of fisheries holds some greater promise because environmental change has already been a factor, and agreements that would allow for adaptive approaches already exist. Even here, however, “implementation will be difficult due both to continuing scientific uncertainty and to the fact that adapting will likely entail a substantial reallocation of economic benefits.”