It’s hard to disagree with FOTE’s contention that the government is, in this case, disregarding the will of Parliament. But the Federal Court of Appeal ruled that the law itself wasn’t justiciable – in other words, it has no adequate resolution to offer for the dispute.

A word about appeal applications before the Supreme Court: Only those which raise questions of national importance are granted. Admittedly, climate change seems as good a candidate as any in this regard. So why did the Court refuse to grant leave? It’s always a bit of a mystery. One of the top court’s privileges is that it need not give its reasons.

Now, it has sided with environmentalists in the past — not least of which was upholding right to launch environmental class action lawsuits — but one gets the feeling it was mindful to show deference to the executive branch of government (which, as it happens, has not always shown deference to the legislative branch). But at the end of the day, the Supreme Court likely drew the same conclusion as the the lower courts. The law simply isn’t enforceable, which means the law was poorly designed to begin with.

Interestingly, the EPA is now considering using water law to fight ocean acidification — the other major climate change issue facing us. Following a law suit settlement reached with the plaintiff, the Center for Biological Diversity — that claimed the agency failed in recognizing the impacts of acidification on coastal waters — the EPA will consider how states can address ocean acidification under the Clean Water Act. Hopefully, the Clean Water Act’s water quality requirements could be applied in some sort of review of CO2 emissions sources to eventually find ways to reduce them.

Here is a rundown of the presentation by design gurus at Duarte. But just look at some of these slides, gorgeous.

The New York Times has an item on a series of climate change lawsuitsthat are making their way through the courts around the U.S. Already, two federal appeals courts have reversed decisions by federal district courts to dismiss climate-change decisions. One of the cases (Comer v. Murphy Oil USA (5th Cir. Miss. October 16, 2009)), a decision of the Court of Appeals for the 5th Circuit, involved Gulf Coast property owners who claimed property damage resulting from Hurricane Katrina. The plaintiffs sued several large energy and power companies for compensatory and punitive damages, charging that these were caused by greenhouse gases emitted from their operations.

Now the the Alaskan village of Kivalina is appealing the decision of a federal judge in San Francisco which dismissed its claim against several companies, most notably ExxonMobil and Shell Oil, aimed at forcing them to pay the costs of relocation to the mainland, estimated at $US400 million, alleging that the defendants helping are responsible for the climate change that the village claims is destroying its island.

Though Canadian courts have contributed little case law on the matter, large emitters of greenhouse gases in Canada should carefully monitor U.S. rulings on the matter. According to this Fraser Milner Casgrain report:

“While the decisions discussed above involve U.S.- specific claims, owing in large part to the United States Constitution, the cases raise certain legal principles that are universally relevant. While climate change litigation would be novel in Canada, it could ostensibly be based on similar principles of tort law available in the U.S., including the common law claim of nuisance. Although the political question and standing doctrines do not flow from the Constitution in Canada (as they do in the United States) they are the subject of fundamental common law principles. Consequently, any actions brought in Canada would invariably need to address the suitability of the court system to resolve climate change litigation. Additionally, courts would need to grapple with the concept of contribution and whether a defendant’s contribution to a worldwide problem is in itself sufficient to result in liability, when the defendant is one of many worldwide emitters of greenhouse gases.”

Joseph E. Stiglitz, 2001 Nobel Laureate and Professor in Economics at Columbia University, concludes that world leaders at the Copenhagen climate conference failed not only to reach a binding agreement, but also to agree on how to save the planet. An entirely new strategy is needed, he says, to effectively address climate change:

“Perhaps it is time to try another approach: a commitment by each country to raise the price of emissions (whether through a carbon tax or emissions caps) to an agreed level, say, $80 per ton. Countries could use the revenues as an alternative to other taxes – it makes much more sense to tax bad things than good things. Developed countries could use some of the revenues generated to fulfill their obligations to help the developing countries in terms of adaptation and to compensate them for maintaining forests, which provide a global public good through carbon sequestration.

We have seen that goodwill alone can get us only so far. We must now conjoin self-interest with good intentions, especially because leaders in some countries (particularly the United States) seem afraid of competition from emerging markets even without any advantage they might receive from not having to pay for carbon emissions . A system of border taxes – imposed on imports from countries where firms do not have to pay appropriately for carbon emissions – would level the playing field and provide economic and political incentives for countries to adopt a carbon tax or emission caps. That, in turn, would provide economic incentives for firms to reduce their emissions.”

This is an interesting idea, as it essentially shifts the focus away from getting each country to meet hard emissions reduction targets to setting the price of carbon, a simpler proposition from an economic point of view. Agreeing to hard caps can be politically contentious. Stiglitz’ approach might be more viable.

Lawson is long-time critic of the Kyoto Protocol and, for a while at least, sided firmly with global warming skeptics. He’s nuanced his arguments in the last few years recognizing now that global warming is a reality that will have a negative, albeit moderate, impact on us. But he has little time for alarmist and apocalyptic statements from climatologists and climate change policy advocates.

Lawson proposes we “abandon the Kyoto-style folly that reached its apotheosis in Copenhagen last week, and move to plan B,” which essentially boils down to adaptation, plus modest increases in government investment in technological research and development.

This hardly amounts to much of a solution, however Lawson’s analysis of why Copenhagen failed is spot on:

1. The massive cost of decarbonizing the world’s economies because carbon-based energy is likely to remain the cheapest form of energy for the foreseeable future

2. Solving climate change is about negotiating a solution on how to share the burden between the developed world, responsible for the bulk of past emissions, and the developing world, which will likely be responsible for a sizeable chunk of future emissions.

His most insightful comment on the dilemma facing the developing world is this:

And the overriding priority for the developing world has to be the fastest feasible rate of economic development, which means, inter alia, using the cheapest available source of energy: carbon energy.

Moreover, the argument that they should make this economic and human sacrifice to benefit future generations 100 years and more hence is all the less compelling, given that these future generations will, despite any problems caused by warming, be many times better off than the people of the developing world are today.

For an interesting debate pitting Nigel Lawson and author Bjorn Lomborg on one side against Green Party leader Elizabeth May, and George Monbiot, on the other, check out the Munk Debates site.