¹ There is a substantial body of scholarship on the centrality of civil and constitutional rights to American environmental law. For a review of the initial developments, see Lazarus, Richard, Pursuing “Environmental Justice”: The Distributional Effects of Environmental Protection, 87 NW. L. R. 787 (1993).Google Scholar

² In common law jurisdictions, tort law has played a role in highlighting distributional concerns in public law. See Pontin, Benjamin, The Common Law Clean Up of the “Workshop of the World”: More Realism About Nuisance Law's Historic Environmental Achievements, 40 J. L. Soc'y 173 (2013). In civil law countries, civil remedies have been mooted based on duty of care jurisprudence. In the recent Urgenda judgment, a group of Dutch citizens successfully obtained a Reduction Order from The Hague District Court requiring more stringent climate regulation. Their claim was based primarily on the duty of care jurisprudence developed under Dutch civil law. Stichting Urgenda v. Gov't of the Netherlands (Ministry of Infrastructure & Env't), ECLI:NL:RBDHA:2015:7145, Rechtbank Den Haag (Hague District Court).Google Scholar

³ Calabresi and Melamed argue that regulatory choices about efficiency are essentially choices about distribution: “what is a Pareto optimal, or economically efficient, solution varies with the starting distribution of wealth. Pareto optimality is optimal given a distribution of wealth, but different distributions of wealth imply their own Pareto optimal allocation of resources.” Guido Calabresi & Douglas Melamed, Property Rules, Liability Rules and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089, 1096 (1970).Google Scholar

⁴ Other than differences in the distribution of wealth, Calabresi characterizes transaction costs as distributional impediments: “… the cost of information to each party, the absence of psychological or other impediments to acting on the basis of available information, the administrative costs of shifting losses, and the extent to which parties actually bear the costs which the particular tests impose on them.” Guido Calabresi & Jon Hirschoff, Towards a Test for Strict Liability in Torts, 81 Yale L. J. 1055, 1059, n. 17 (1972).Google Scholar

⁵ As Calabresi puts it: “Our society is not committed to preserving life at any cost. In its broadest sense, this rather unpleasant notion should be obvious.” Guido Calabresi, The Decision for Accidents: An Approach to Non-Fault Allocation of Costs, 78 Harv. L. Rev. 713, 716 (1965).Google Scholar

⁶ See Hunt, Alan, The Theory of Critical Legal Studies, 6 Oxf. J. Leg. Stud. 1 (1986).Google Scholar

⁷ Take for instance the resistance by the agricultural sector in countries such as Ireland to environmental reform —higher environmental standards would adversely affect the economic benefits of some farmers. George Taylor, Conserving the Emerald Tiger: The politics of environmental regulation in Ireland 9–33 (Arlen House 2001).Google Scholar

⁸ The paradigmatic example is a dam that brings several general economic benefits but affects the ecological relationship of some communities with their surroundings. See, for instance, the controversy around the Sardar Sarovar Dam and the Narmada River Valley Project in India. Arundhati Roy, The Greater Common Good, in The Algebra of Infinite Justice: Collected Essays 43–142 (2002). Despite the dialogic space opened by courts when claims are made using the language of rights, the human rights regime can do very little to “address the problems and plights of people affected by large dams and major public projects.” Upendra Baxi, What Happens Next is Up to You: Human Rights at Risk in Dams and Development, 16 Am. U. Int'l L. Rev. 1507, 1520–22 (2001).Google Scholar

⁹ States with stringent environmental standards have historically been global leaders in pollution control technologies. Grabosky, Peter N., Governing at a Distance: Self-Regulating Green Markets, in Markets, the State and the Environment 197–228 (Robyn Eckersley ed. 1995). More recently, some parties have developed a comparative advantage in developing goods and services in response to climate change. One example is the Netherlands' leadership in sea walls. McKenzie Funk, Windfall: The Booming Business of Global Warming 215–34 (2015).Google Scholar

¹⁰ As Maloney and McCormick put it, “the interests of environmentalists and producers may coincide against the welfare of consumers.” Maloney, Michael T. & McCormick, Robert E., A Positive Theory of Environmental Quality Regulation, 25:1 J.L. & Econ 99, 100 (1982).Google Scholar

¹¹ Don Fullerton, Six Distributional Effects of Environmental Policy, 31:6 Risk Analysis 923 (2011).Google Scholar

¹² Other than loss aversion, willingness-to-accept is the other standard influenced by behavioral economics. Elizabeth Hoffman & Matthew Spitzer, Willingness to Pay vs. Willingness to Accept: Legal and Economic Implications, 71 Wash. U. L.Q. 59 (1993).Google Scholar

¹³ J. Martinez-Alier, Review of The Distributional Effects of Environmental Policy, 63 Ecological Econ. 243, 247 (2007).Google Scholar

¹⁴ Sunstein explains that regulators may indeed lack relevant tools for converting benefits into money. There might be policies, however, where monetization may not be the appropriate basis for policy owing to the non-quantifiable nature of burdens and benefits. Cass Sunstein, Valuing Life: Humanizing the Regulatory State 68 (2014).Google Scholar

¹⁵ Bullard's pioneering work highlighted the invisibility of race and class in environmental policy choices, and how they may be overcome. Robert Bullard, Dumping in Dixie: Race, Class and Environmental Quality (1990).Google Scholar

¹⁶ The framing of the problem necessarily affects the framing of solutions, and those solutions can take a variety of forms. This is also why public participation becomes important at both the policymaking stage as well as improving the accessibility of courts.Google Scholar

¹⁷ Sunstein refers to these risks as the “ancillary risks” that “regulated risks” create. Cass Sunstein, Risk and Reason: Safety, Law and the Environment 134 (2002).Google Scholar

¹⁸ The understanding of meaningful participation or involvement differs across jurisdictions. See Nadal, Carine, Pursuing Substantive Environmental Justice: The Aarhus Convention as a ‘Pillar’ of Empowerment, 10 Env't L. Rev. 28, 36–44 (2008).Google Scholar

¹⁹ Timothy Luke, Capitalism, Democracy and Ecology: Departing from Marx (1999).Google Scholar

²⁰ Andrew Dobson, Justice and the Environment: Conceptions of Environmental Sustainability and Dimensions of Social Justice (1998).Google Scholar

²¹ Julian Agyeman & Bon Evans, Just Sustainability: The emerging discourse of environmental justice in Britain?, 170:2 Geographical J. 155, 156 (2004).Google Scholar

²² A similar process is at work in the inability of theories of justice in capturing injustice claims. As Yack observes, “the raw and wildly diverse mix of complaints inspired by our sense of injustice gives us access to parts of that complex world that our familiar theories of justice … rarely enter.” Bernard Yack, Putting Injustice First: An Alternative Approach to Liberal Pluralism, 66 Soc. Research 1117 (1999). The idea of the inability of a “normal model of justice” to capture senses of injustice may be attributed to Shklar. Judith Shklar, The Faces of Injustice (1990).Google Scholar

²³ Justified differential treatment is legal provided such treatment “is based on an objective and reasonable criterion, that is, if the difference relates to a legally permitted aim pursued by the legislation in question, and it is proportionate to the aim pursued by the treatment.” Case C-127/07, Société Arcelor Atlantique et Lorraine v. Premier Ministre, para. 47 (2008), http://curia.europa.eu/.Google Scholar

²⁴ Bernard Vanheusden, The Relevance of Environmental Justice for the Legal Framework in the European Union, 7 J. Eur. Env't & Plan. L. 163, 165 (2010).Google Scholar

²⁵ Alexios Antypas, Claude Cahn, Richard Filcak & Tamara Steger, Linking Environmental Protection, Health, and Human Rights in the European Union: An Argument in Favour of Environmental Justice Policy, 20 Env't L. & Mgmt. 8, 21 (2008).Google Scholar

²⁶ For instance, Vanheusden observes “there are for example not more immigrants than on average in Belgium” as he considers origin and nationality to be a criterion for a collective exposed to pollution. Vanheusden, supra note 24, at 169.Google Scholar

²⁷ Antypas, supra note 25, at 10–11.Google Scholar

²⁸ Sunstein, supra note 14, at 66.Google Scholar

²⁹ Hockett shows that utilitarianism is prescriptively sterile as people are not “passive utility factories.” Rawlsian justice theory cannot provide pointers for recognizing or designing societies based on prioritarian views. Further institutional micro-changes as favored by “normative law & economics” suffer from an endogeneity problem as it seeks to put into effect “isolated micro-changes wrought relative to prior backdrop of entitlements.” In contrast, a nuanced view of distribution would allow for a normative prescriptive view of regulation. Hockett, Robert C., Putting Distribution First, 18 Theoretical Inquiries in L. 159, 208–11 (2017). This is in keeping with the Calabresian attempt at doing away with distributional agnosticism; this is evident in the concentration on factors such as loss-spreading, identifying the “least-cost avoider” as a way of thinking about entitlements, and assessing regulatory options. For a review of the Calabresian view, see Hackney, James R. Jr., Guido Calabresi and the Construction of American Legal Theory, 77:2 L. & Contemp. Probs. 45 (2014). Calabresi and Hirschoff further clarify that when different liability rules “have … different distributional effects … distributional differences may well determine the approach taken.” Calabresi & Hirschoff, supra note 4, at 1077.Google Scholar

³⁰ See, for instance, Osofsky, Hari M. & Jacqueline Peel, Litigation's Regulatory Pathways and the Administrative State: Lessons from U.S. and Australian Climate Change Governance, 25 Geo. Env't L. Rev. 2017 (2013).Google Scholar

³¹ Gordon Walker, Environmental Justice, Impact Assessment and the Politics of Knowledge: The implications of assessing the social distribution of environmental outcomes, 30 Env't Impact Assessment Rev. 312, 313 (2010).Google Scholar

³² The inevitability and normative potential of regulation to organize relations and achieve objectives, an either-or preference for centralized regulation or deregulation is misplaced. Stewart, Richard B., Reconstitutive Law, 46 Md. L. Rev. 46 (1986).Google Scholar

³³ As Walker puts it, “… giving attention to questions of distribution may serve to sustain or generate conflict around environmental decisions—because hidden patterns of disproportionate impact on particular groups may be revealed and become politicised; because evidence of distributions is not uncontroversial either in the methods or in the processes of its production.” Walker, supra note 31, at 318.Google Scholar

³⁴ A central argument for why the extension of the EU ETS to non-EU aviation companies was compatible with international aviation law was because the EU ETS is a market mechanism and not a tax. Case C-366/10, Air Transp. Ass'n of Am. v. Sec'y of State for Energy & Climate Change (2011), http://curia.europa.eu/.Google Scholar

³⁵ The EU ETS was approved under the Treaty on the Functioning European Union art. 192(1) [hereinafter TFEU] which provides measures that can be adopted by the Council and Parliament by following an ordinary legislative procedure involving a qualified majority vote in the Council. The European Commission Proposal for a carbon tax was shot down under TFEU art. 192(2) which requires the Council to follow a special legislative procedure involving a unanimous vote when it seeks to adopt measures that are “primarily of a fiscal nature.”Google Scholar

³⁶ The operation of strict liability is evident from a couple of cases where the Court of Justice of the European Union effectively ruled that in the absence of force majeure, there is no room for firms to negotiate either the penalty or the reparations requirement. C-203/12, Billerud Karlsborg Aktiebolag v. Naturvårdsverket (2012), http://curia.europa.eu/; Case C-580/14, Sandra Bitter v. Bundesrepublik Deutschland (2015), http://curia.europa.eu/.Google Scholar

³⁷ Decision No. 406/2009, OJ (L 140) (EC).Google Scholar

³⁸ Peter Markussen & Gert Tinggard Svendsen, Industrial Lobbying and the Political Economy of GHG Trade in the European Union, 33 Energy Pol'y 245–55 (2005).Google Scholar

³⁹ Jonas Meckling, Carbon Coalitions: Business, Climate Politics and the Rise of Emissions Trading 48 (2011).Google Scholar

⁴⁰ Caney clarifies that the primary distinction between distribution of responsibilities and distribution of burdens is that the former deals with the assignment of duties or responsibilities to prevent climate change, which is in effect the assignment of liability “of those who have failed to comply with theirs [responsibilities].” The latter deals with the imposition of burdens on third-parties without responsibilities by those who have been assigned such responsibilities. Such burdens may be justified given the “priority of climate change;” it amounts to “appeasing reluctant emitters [or responsibility bearers] and acceding to their demands to bear less costs than they ought to.” Simon Caney, Climate Change and Non-Ideal Theory: Six ways of Responding to Noncompliance, in Climate Justice in a Non-ideal World 25–28 (Clare Heyward & Dominic Roser eds., 2016).Google Scholar

⁴¹ The European Court of Justice observed that the pass-through of costs by producers included in the EU ETS to consumers is not prohibited, but, at the same time, not essential for reducing emissions. Cases C-566/11, C-567/11, C-580/11, C-591/11, C-620/11 and C-640/11, Iberdrola v. Administración del Estado (2013), http://curia.europa.eu/.Google Scholar

⁴² See Zhang, ZhongXiang, Carbon Emissions Trading in China: The Evolution from Pilots to a Nationwide Scheme, CCEP Working Paper 1503 (2015).Google Scholar

⁴³ Laing, T., Sato, M., Grubb, M. & Comberti, C., The Effects and Side-effects of the EU Emissions Trading Scheme, 5 WIREs Climate Change 509 (2014).Google Scholar

⁴⁴ Peters, Glen P. & Hertwich, Edgar G., Post-Kyoto Greenhouse Gas Inventories: Production Versus Consumption, 86 Climatic Change 51 (2008).Google Scholar

⁴⁵ The problem with Double Counting is if a single abatement action is counted more than once. This would be a problem as there would potentially be an overestimation of the amount of emissions mitigated. If the primary proxy for the effectiveness of a climate policy is the satisfaction of climate targets, then the targets would be met sooner with an accounting inflation. In other words, a quantity mechanism proxied through the satisfaction of a climate target would not correspond with actual abatement. Steven Sorrell, Who Owns the Carbon? Interactions Between the EU Emissions Trading Scheme and the UK Renewables Obligation and Energy Efficiency Commitment, 14 Energy & Env't 677, 692–94 (2003).Google Scholar

⁴⁶ Case T-16/04, Arcelor v. European Parliament & Council of the European Union, 2010 E.C.R. II-211, para. 168 (2010).Google Scholar

⁴⁷ Id. at para. 167.Google Scholar

⁴⁸ A carbon trading scheme for households was considered by the Environmental Audit Committee of the House of Commons in the United Kingdom but was found non-implementable. Environmental Audit Committee, HC, Personal Carbon Trading: Government Response to the Committee's Fifth Report of Session 2007–2008 (May 26, 2008) (UK).Google Scholar

⁴⁹ It would be incorrect to characterize the EU ETS as a policy mechanism mediated solely by market interests, owing to the heavy regulatory oversight and liability to pay a fine for non-compliance, as discussed in this Article. These features in combination with sophisticated market instruments create the climate policy complex in the EU that makes different interests commensurable. This is why the EU ETS is uniquely placed in the distribution of responsibility to States and firms, and perhaps not to other entities where human and nonhuman interests would have to be valued. For a discussion, see Dalsgaard, Steffen, Carbon Value Between Equivalence and Differentiation, 5 Env't & Soc'y 86 (2014).Google Scholar

⁵⁰ This does not, however, discount the meta-principle of proportionality in thinking through the institutional basis and individual policy instruments in the EU policy framework. Cendra de Larragan argues that this meta-principle is helpful in assessing the characteristics of any policy instrument with respect to (i) the relationship between means and ends; (ii) the distribution of benefits and burdens; and (iii) the participation of those affected by the regulation in question. Javier Cendra de Larragan, Distributional Choices in EU Climate Change Law and Policy: Towards a Principled Approach? 11 (2011).Google Scholar

⁵¹ The “objective and reasonable criterion” to gauge the “appropriateness of Community legislative action” in this case was “administrative feasibility” and “administrative complexity” of the EU ETS that is “novel and complex”: The Court felt that based on administrative concerns, for the purpose of the implementation of the EU ETS, it is necessary “attain the critical mass of participants necessary for the scheme to be set up” in a step-by-step manner. Société Arcelor Atlantique et Lorraine and Others, supra note 23 at para. 60.Google Scholar

⁵² Iberdrola, supra note 41 at para. 79. This can be gleaned from the fact that unlike Advocate General Kokott's identification of energy efficiency as an objective integral to the EU ETS, the Court considers all objectives other than emissions reduction as sub-objectives. For a discussion, see Rodriguez, Daniel Perez, Absorbing EU ETS Windfall Profits and the Principle of Free Allowances: Iberdrola and Others, 51 Common Mkt L. Rev. 679, 690–693 (2014).Google Scholar

⁵³ Given the ability of some EU institutions, Member States, and private parties to shape the distribution of responsibility, burdens and benefits, and accordingly avoid a carbon tax, it is highly unlikely that a tax would be given due consideration from the point of progressive environmental effects. Even if we were to accept the non-viability of a tax, there could be changes made to the EU ETS itself to ensure achievement of progressive environmental effects. It has been argued that setting a price floor may well enhance the environmental integrity of the EU ETS to ensure that the price set by the market does not compromise the effectiveness of the binding emissions cap. Frédéric Branger, Oskar Lecuyer, Philippe Quirion, The European Union Emissions Trading Scheme: Should we throw the flagship out with the bathwater?, 6 WIREs Climate Change 9, 12 (2015).Google Scholar