2015 |
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Low, Kelvin FK; Lin, Jolene Carbon credits as EU like it: Property, immunity, tragiCO2medy? Journal Article Journal of Environmental Law, 27 (3), pp. 377–404, 2015. Abstract | BibTeX | Tags: Carbon Credits, CO2, EU @article{low2015carbon, title = {Carbon credits as EU like it: Property, immunity, tragiCO2medy?}, author = {Kelvin FK Low and Jolene Lin}, year = {2015}, date = {2015-01-01}, journal = {Journal of Environmental Law}, volume = {27}, number = {3}, pages = {377--404}, publisher = {Oxford University Press}, abstract = {While there have been many legal studies of the European Union Emissions Trading Scheme (EU ETS), none seem to have considered the EU ETS from the perspective of private law, particularly the private law issues that stem from the ambiguous legal nature of the ‘carbon credit’. Such ambiguity translates into regulatory uncertainty and business risks of the sort that occurred in Armstrong DLW GmbH v Winnington Networks Ltd [2013] Ch 156, an English case involving fraud and ‘stolen’ European Union Allowances (EUAs). From an environmental law and policy perspective, uncertainty does not bode well for the EU ETS’s regulatory effectiveness and environmental integrity. From a property law perspective, the legal nature of the EUA begs for clarification in order to give holders of EUAs certainty of their rights and obligations, the absence of which led to the litigation in Armstrong v Winnington taking on an unduly convoluted complexion. The authors argue that one of the critical failures of the EU ETS lies in its failure to properly define the fundamental legal nature of the EUA. While this omission to define can be explained away by deference to the principle of subsidiarity, it can be argued that the omission stems also from a failure to appreciate the legal nature of intangible property as well as a misunderstanding of the way in which registers of rights operate. Handicapped by conceptual failings, the EU ETS exposes participants to unnecessary uncertainty that national courts will find difficult to resolve.}, keywords = {Carbon Credits, CO2, EU}, pubstate = {published}, tppubtype = {article} } While there have been many legal studies of the European Union Emissions Trading Scheme (EU ETS), none seem to have considered the EU ETS from the perspective of private law, particularly the private law issues that stem from the ambiguous legal nature of the ‘carbon credit’. Such ambiguity translates into regulatory uncertainty and business risks of the sort that occurred in Armstrong DLW GmbH v Winnington Networks Ltd [2013] Ch 156, an English case involving fraud and ‘stolen’ European Union Allowances (EUAs). From an environmental law and policy perspective, uncertainty does not bode well for the EU ETS’s regulatory effectiveness and environmental integrity. From a property law perspective, the legal nature of the EUA begs for clarification in order to give holders of EUAs certainty of their rights and obligations, the absence of which led to the litigation in Armstrong v Winnington taking on an unduly convoluted complexion. The authors argue that one of the critical failures of the EU ETS lies in its failure to properly define the fundamental legal nature of the EUA. While this omission to define can be explained away by deference to the principle of subsidiarity, it can be argued that the omission stems also from a failure to appreciate the legal nature of intangible property as well as a misunderstanding of the way in which registers of rights operate. Handicapped by conceptual failings, the EU ETS exposes participants to unnecessary uncertainty that national courts will find difficult to resolve. | |
2012 |
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Lin, Jolene Climate change and the courts Journal Article Legal studies, 32 (1), pp. 35–57, 2012. Abstract | BibTeX | Tags: Australia, EU @article{lin2012climateb, title = {Climate change and the courts}, author = {Jolene Lin}, year = {2012}, date = {2012-01-01}, journal = {Legal studies}, volume = {32}, number = {1}, pages = {35--57}, publisher = {Cambridge University Press}, abstract = {This paper argues that climate change litigation is an important component of the governance framework that has emerged to regulate how states respond to climate change at the global, regional and local levels. The paper examines climate change-related cases from selected jurisdictions, including Australia and the EU, and proposes a theoretical framework to shed light on the use of litigation as a regulatory response to climate change.}, keywords = {Australia, EU}, pubstate = {published}, tppubtype = {article} } This paper argues that climate change litigation is an important component of the governance framework that has emerged to regulate how states respond to climate change at the global, regional and local levels. The paper examines climate change-related cases from selected jurisdictions, including Australia and the EU, and proposes a theoretical framework to shed light on the use of litigation as a regulatory response to climate change. | |
Lin, Jolene Governing biofuels: A principal-agent analysis of the European Union biofuels certification regime and the Clean Development Mechanism Journal Article Journal of Environmental Law, 24 (1), pp. 43–73, 2012. @article{lin2012governing, title = {Governing biofuels: A principal-agent analysis of the European Union biofuels certification regime and the Clean Development Mechanism}, author = {Jolene Lin}, year = {2012}, date = {2012-01-01}, journal = {Journal of Environmental Law}, volume = {24}, number = {1}, pages = {43--73}, publisher = {Oxford University Press}, abstract = {As a key actor behind the emerging global biofuels market, the European Union has introduced environmental regulations governing such products. This article analyses the biofuels ‘meta-standard’ certification scheme which creates a transnational governance regime involving a regional bloc including States, non-governmental organisations and businesses in a hybrid regulatory model combining elements of private certification and public authority. A comparison of the role of Designated Operational Entities in the Kyoto Protocol's Clean Development Mechanism (CDM) and the certification schemes in the EU sustainability regulatory regime demonstrates that the problems that threaten the environmental integrity of the CDM are less likely to emerge in the EU biofuels context.}, keywords = {EU}, pubstate = {published}, tppubtype = {article} } As a key actor behind the emerging global biofuels market, the European Union has introduced environmental regulations governing such products. This article analyses the biofuels ‘meta-standard’ certification scheme which creates a transnational governance regime involving a regional bloc including States, non-governmental organisations and businesses in a hybrid regulatory model combining elements of private certification and public authority. A comparison of the role of Designated Operational Entities in the Kyoto Protocol's Clean Development Mechanism (CDM) and the certification schemes in the EU sustainability regulatory regime demonstrates that the problems that threaten the environmental integrity of the CDM are less likely to emerge in the EU biofuels context. | |
2011 |
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Lin, Jolene Environmental Regulation of Biofuels: Limits of the Meta-Standard Approach Journal Article Carbon & Climate L. Rev., pp. 34, 2011. Abstract | BibTeX | Tags: biofuel, EU @article{lin2011environmentalb, title = {Environmental Regulation of Biofuels: Limits of the Meta-Standard Approach}, author = {Jolene Lin}, year = {2011}, date = {2011-01-01}, journal = {Carbon & Climate L. Rev.}, pages = {34}, publisher = {HeinOnline}, abstract = {The promotion of biofuels as afossilfuel alternative has been a significant aspect of the global quest for solutions to mitigate climate change. However, the quick-fix has proven to be problematic as food security and environmental concerns emerge. To address these concerns, the European Union (EU) Renewable Energy Directive contains sustainability criteria that biofuels must fulfill in order to be counted towards attainment of EU or national renewable energy obligations, or to be eligible for financial support. The European Commission (EC) has adopted the meta-standard approach as the compliance mechanism. The meta-standard approach relies heavily on voluntary certification schemes and is an example of regulatory out-sourcing to private actors in European clean development governance. This paper critically examines the limitations of the meta-standard approach, draws comparisons with the Clean …}, keywords = {biofuel, EU}, pubstate = {published}, tppubtype = {article} } The promotion of biofuels as afossilfuel alternative has been a significant aspect of the global quest for solutions to mitigate climate change. However, the quick-fix has proven to be problematic as food security and environmental concerns emerge. To address these concerns, the European Union (EU) Renewable Energy Directive contains sustainability criteria that biofuels must fulfill in order to be counted towards attainment of EU or national renewable energy obligations, or to be eligible for financial support. The European Commission (EC) has adopted the meta-standard approach as the compliance mechanism. The meta-standard approach relies heavily on voluntary certification schemes and is an example of regulatory out-sourcing to private actors in European clean development governance. This paper critically examines the limitations of the meta-standard approach, draws comparisons with the Clean … | |