PLES has hosted the second seminar of “Responding Strategies of Law and Policy - Sustainable Environmental Regulations under Climate Change” at Multimedia Room of Tsai Lecture Hall on May 12, 2012.

The seminar was hosted by Professor Yi-Nan Liao and presented by PLES chief director Professor Jiunn-rong Yeh on the topic of the liability mechanism of climate change.

On the discussion framework of climate change, the damages and compensation was not deem as an important controlling method as opposed to carbon emission trading, carbon and energy taxes, and treasury systems. During the seminar, Professor Yeh tried to present the challenges of damages and compensation of climate change cases. Professor Yeh went on and addressed the fundamental theories and the layout of the system under climate change liability mechanism.

Professor Yeh pointed out the distinguishing features of “court-oriented”, “case-oriented”, and “tort-oriented” in traditional damages and compensation mechanism. However, these three features are fundamentally confronting with the features of climate change, which are – “the large dimension of time and space”, “high uncertainty”, and “making the decisions with unknown circumstances.” If we were to apply the traditional damages and compensation mechanism (especially the tort cases) to climate change cases, it would then limit the aspects of “the definition of tortfeasor and victim”, “the establishment of causal relationship”, and “the ascertainment of damages.” Professor Yeh further asserted that if we could not break through the limits of the traditional mechanism, then we must reconsider the possibilities of replacing the traditional approach of case-by-case and individualized liability with a more appropriate climate change liability system. The climate change environmental liability system should contain the functions of “redistribution of wealth (justice)” and “controlling GHG emission.”

Professor Yeh continued with the market share liability theories in the American case Sindell, attempting to explain the climate change environmental liability mechanism establishing on the ground that the nation as the subject of fund. On an international perspective, the proportion of liability should be based on the sum of historical emission of each country, and the nations should establish “climate change liability fund” based on the liability proportion. As to domestic aspect, nations should share the burden of treasury based on the sum of each country’s historical emission. Professor Yeh believes that this responsible treasure method could break through the limits of traditional liability mechanism, lighting the burden of proof in litigation, and it further provides incentives on GHG emission control matter for the nations, thus fulfilling the basic demands of the environmental mechanism for climate change.

Panel speakers Professor Chien-Te Fan and Professor Tsung-fu Chen both agreed with Professor Jiunn-rong Yeh’s contention and further addressed their own thoughts. Professor Fan had pointed out that the traditional evidence law would face challenges under the liability mechanism based on probabilities, making it inevitable for judiciary to enhance the interaction with science. However, we will be facing the issue of “justice.” When our decision process contains the relevance of justice, it complicates the issue. The justice aspect of environmental liability mechanism should also separate and distinguish when dealing with “the justice of distribution”, and “the correction of justice.” Professor Fan suggested that we could think about how we could complement the adjusting, precautious principles, and NAMA (Nationally Appropriate Mitigation Actions) with climate change environmental liability mechanism. Professor Chen continued with the subject, pointing out the domestic level of designing the system should further consider the issues of how to calculate the historical sum amount, who are the subject of the treasury, and who should be subsidized in the related field. As to the international level of issues, we should consider the execution and administration of the said matter.

Panel speaker Associate Professor Wen-Chen Chang agreed with Professor Yeh’s contentions, and she further pointed out that in order to obtain justice, the treasury which came from the calculation based on the liability portion of historical emission instead from the allocation of the budget, would come closer in avoiding the situation that the government subsidizes on large entities, making the individual taxpayers pay for the bill. However, Associate Professor Chang also pointed out the traditional method of individual litigation of climate change cases still has its values, since we could find the one to be responsible, carrying out the grounding values of justice.