Electronic copy available at: http://ssrn.com/abstract=1529669

WASHINGTON AND LEE UNIVERSITY

SCHOOL OF LAW Sydney Lewis Hall

Lexington, VA 24450

Washington & Lee Public Legal Studies Research Paper Series

Accepted Paper No. 2010-3 December 30, 2009

“The Continuing Importance

of Climate Change Litigation”

Hari Osofsky

Accepted Paper

(Climate Law, Forthcoming 2010)

Electronic copy available at: http://ssrn.com/abstract=1529669Electronic copy available at: http://ssrn.com/abstract=1529669

1

The Continuing Importance of Climate Change Litigation

Hari M. Osofsky*

ABSTRACT

This article analyzes the ongoing role of climate change litigation as part of transnational

efforts to address the problem. The article begins by examining the impacts of this litigation thus

far, and mapping its ongoing role. It considers the litigation’s effect on governmental regulatory

decisionmaking, corporate behavior, and public understanding of the problem. The article then

builds upon this examination by exploring climate litigation’s influence upon particular actors at

different levels of government over time. It argues that climate change litigation provides a

valuable complement to other law and policy efforts because it fosters needed interaction across

levels of government and different time periods. The article next engages these scalar dynamics

more deeply through a diagonal federalism approach, which focuses on the disputes’

simultaneous vertical and horizontal elements. It applies a taxonomy of diagonal regulatory

approaches to two examples of climate change litigation stemming from the U.S. Clean Air Act,

and considers the implications of that analysis for understanding the cases’ regulatory role. The

* Associate Professor, Washington and Lee University School of Law; B.A., J.D., Yale University. The author can be reached at osofskyh@wlu.edu. This article expands upon Hari M. Osofsky, Conclusion: Adjudicating Climate Change across Scales, in Adjudicating Climate Change: State, National, and International Approaches, 375 (William C.G. Burns & Hari M. Osofsky, eds., 2009), and also draws from Hari M. Osofsky, Is Climate Change “International”?: Litigation’s Diagonal Regulatory Role 49 Va. J. Int’l L. 585 (2009) and Hari M. Osofsky, Diagonal Federalism and Climate Change: Implications for the Obama Administration (Prospective Article). It has benefited greatly from feedback at the ESIL-ASIL Research Forum, Changing Futures: Science and International Law at the University of Helsinki; University of Maryland School of Law, Global Law and Multilateral Law: Evolving Conceptions of International Law and Governance Conference; International Law Weekend 2009; and the Europa Institute Seminar, Climate Change in the Courts at the University of Edinburgh. I would like to thank Wil Burns, Sam Calhoun, Stefanie Herrington, Brian Murchison, Alexander Murphy, Rodney Smolla, Edith Brown Weiss, and Alexander Zahar for their helpful conceptual and editorial input, and Joshua, Oz, and Scarlet Gitelson for their loving support.

Electronic copy available at: http://ssrn.com/abstract=1529669Electronic copy available at: http://ssrn.com/abstract=1529669

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article concludes by reflecting upon the continuing importance of this litigation in influencing

the behavior of key public and private actors.

I. INTRODUCTION

Over the course of the last several years, the number of cases around the world raising the

problem of climate change has increased dramatically, as has their mainstream acceptance. The

impact of this litigation has arguably been greatest in the United States. Most notably, the U.S.

Supreme Court’s decision in Massachusetts v. EPA1 – together with a cultural shift symbolized

by Al Gore and the Intergovernmental Panel on Climate Change (IPCC) winning the Nobel

Peace Prize2 – transformed the policy and litigation landscape. The election of President Obama

changed things further, with his commitment to active U.S. participation in international climate

treaty negotiations and to a robust federal regulatory approach to greenhouse gas emissions.3

The continuing relevance of climate change litigation in the United States has been reinforced

since that election as circuit courts grapple with whether public nuisance suits should move

forward against major corporate emitters4 and implementation of Massachusetts v. EPA interacts

with U.S. Congressional reticence on climate change legislation.5

1 Massachusetts v. EPA, 549 U.S. 497 (2007) [hereinafter Massachusetts v. EPA].

2 The Nobel Peace Prize 2007, <http://nobelprize.org/nobel_prizes/peace/laureates/2007/> (viewed 17 November 2007).

3 See President Barack Obama, Address to Joint Session of Congress, 24 February 2009,

<www.whitehouse.gov/the_press_office/Remarks-of-President-Barack-Obama-Address-to-Joint-Session-of-

Congress/>; Remarks by the President on Jobs, Energy Independence, and Climate Change, East Room of the

White House, 26 January 2009, <www.whitehouse.gov/blog_post/Fromperiltoprogress/>; Obama for America,

Barack Obama and Joe Biden: New Energy for America, <www.barackobama.com/pdf/factsheet_energy_speech_080308.pdf> (viewed 22 December 2008).

4 See Comer v. Murphy Oil, No. 07-60756 (5th Cir., 2009), available at <www.ca5.uscourts.gov/opinions/pub/07/07-

60756-CV0.wpd.pdf> (viewed 9 November 2009) [hereinafter Comer v, Murphy Oil]; Connecticut v. AEP, Nos.

05-5104-cv, 05-5119-cv (2d Cir., 2009), available at <www.ca2.uscourts.gov/decisions/isysquery/8d7ac2bf-5143-

Electronic copy available at: http://ssrn.com/abstract=1529669

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Although U.S. courts and administrative tribunals remain major loci for these cases, they

are not alone. Numerous cases have been filed in local, state, national, and international

tribunals around the world based on a wide range of legal theories.6 What these cases share in

common is their application of law to the problem of climate change, and their engagement of

the complex public-private regulatory dynamics at the core of transnational climate change

regulation. As individuals, corporations, nongovernmental organizations (NGOs), and

governments serve as plaintiffs and defendants in these cases, courts have become a critical

forum in which the future of greenhouse gas emissions regulation and responsibility are

debated.7

This article considers the evolving importance of climate change litigation as part of

transnational efforts to address this problem. Although it references actions taking place on

multiple continents, it retains a core focus on the United States actions for three primary reasons.

First, as a major developed country greenhouse gas emitter which struggles to advance effective

climate change policy at a national level, the United States’ choices help to determine whether

the international efforts will move forward effectively. Second, litigation is particularly relevant

to the current policy dialogue in the United States because of the role of judicial branch in its

450d-8b13-a522af71038e/2/doc/05-5104-cv_opn.pdf#xml=http://www.ca2.uscourts.gov/decisio> (viewed 9

November 2009) [hereinafter Connecticut v. AEP].

5 See Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean

Air Act, 74 Fed. Reg. 66494 (codified at 40 C.F.R. ch. 1) (2009); John M. Broder, Greenhouse Gases Imperil

Health, EPA Announces, N.Y. Times, 8 December 2009, at A18, available at

<www.nytimes.com/2009/12/08/science/earth/08epa.html?_r=1&emc=eta1> (viewed 21 December 2009).

6 Michael Gerrard has compiled a comprehensive summary of U.S. and non-U.S. cases. See Center for Climate

Change Law, Columbia University, <www.law.columbia.edu/centers/climatechange> (viewed 21 December 2009).

7 For an analysis of exemplar cases and their regulatory role, see Adjudicating Climate Change: State, National, and

International Approaches (William C.G. Burns & Hari M. Osofsky, eds., 2009); Hari M. Osofsky, The Geography

of Climate Change Litigation: Implications for Transnational Regulatory Governance, 83 Wash. U. L.Q. 1789

(2005) (actual publication in 2006).

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governmental system and because its top courts have shown greater willingness to act than its

legislative branch. Finally, for these reasons, more climate change litigation continues to take

place in the United States than anywhere else in the world, which makes those cases a

particularly rich case example from which to draw.

Part II of the article examines the impacts of climate change litigation thus far, and maps

its ongoing role. It focuses in particular on the litigation’s effect on governmental regulatory

decisionmaking, corporate behavior, and public understanding of the problem. Part III of this

article builds upon this examination by exploring the way in climate litigation influences

particular actors at different levels of government over time.8 It argues that climate change

litigation provides a valuable complement to treaty, legislative, and executive action because it

fosters needed interaction across levels of government and different time periods. Part IV delves

deeper into these scalar dynamics through a diagonal federalism approach, which focuses on the

disputes’ simultaneous vertical and horizontal elements. It applies a taxonomy of diagonal

regulation to two examples of climate change litigation stemming from the U.S. Clean Air Act,

and considers the implications of that analysis for understanding the cases’ regulatory role. The

article concludes by reiterating that the cross-cutting nature of climate change makes this

litigation continue to be an important mechanism for spurring and fine-tuning governmental and

corporate efforts.

II. IMPACTS OF CLIMATE CHANGE LITIGATION

8 Rescaling processes are ones in which individuals or entities attempt to jump levels. See Sayre, infra note 39, at

285. In the context of climate change litigation, I have described attempts at rescaling in Massachusetts v. EPA. See

Osofsky, The Intersection of Scale, Science, and Law in Massachusetts v. EPA, infra note 51.

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Although we are still in the early stages of these cases, 9

some of the impacts of climate

change litigation are already clear. This Part argues that these cases have led to changes in both

government and corporate behavior, and influenced the public’s perception of climate change as

an urgent problem. Their importance has been highlighted because of regulatory failures at the

international level and at the national level in key countries, but their ongoing relevance goes

well beyond this gap-filling role. As discussed in more detail below, these cases shape large and

small-scale governmental decisionmaking, pressure corporations to take action, and reconfigure

the public discourse. Even if countries agree over time upon a more rigorous treaty regime and

the U.S. Congress passes meaningful legislation, these cases will continue to influence the many

decisions by governmental and nongovernmental entities that impact the global concentrations of

greenhouse gases and the responses to their impacts upon particular places.

This argument for the broader relevance of climate change litigation is controversial.

This Part thus begins by engaging that controversy. It considers debates over the role of climate

change litigation in the broader context of the scholarly literature analyzing the appropriate role

of litigation in regulation. From that base, the Part turns to a discussion of the direct and indirect

regulatory effects of these cases.

A. Framing Litigation’s Value

Litigation over climate change has engendered significant controversy over whether

courts are an appropriate forum for addressing this problem and if so, the extent to which they

have a role beyond regulatory gap-filling. For some, the litigation only has value currently

9 See Peter E. Roderick, Foreword, in Adjudicating Climate Change: State, National, and International Approaches,

vii (William C.G. Burns & Hari M. Osofsky, eds., 2009).

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because of gaps in the treaty regime and national policies. If those were corrected—which

appears more likely in the United States since the election of President Obama, though the slow

pace of U.S. legislation and difficulties at Copenhagen reinforce how far both need to go—they

would want to minimize the opportunity for much of this advocacy.10

For others, the litigation

has value as a regulatory mechanism whether or not policy steps are taken, and should not be

preempted with the implementation of stronger policies.11

According to this view, to which this

article subscribes and as discussed in more detail in the following two Sections, these suits not

only fill gaps, but also allow concerned individuals and entities to highlight impacts and

inequities, as well as to maintain pressure on governments to address additional aspects of the

problem and to help steel the resolve of the policymakers who succeed the drafters of such

mandates.

These specific debates over climate change litigation’s appropriate role take place in the

context of broader scholarly discourse over litigation’s role. For example, Jolene Lin situates

climate change litigation within the socio-legal scholarly literature, with particular emphasis on

the work of Susan Mezy and Jules Lobel, on courts as vehicles for protest and political

discourse.12

In Courts as Forums for Protest, Lobel sought to move beyond the debate over

whether courts primarily resolved disputes between private individuals or whether they also were

10 See, e.g., Eric A. Posner, Climate Change and International Human Rights Litigation: A Critical Appraisal, 155

U. Pa. L. Rev. 1925, at 1925 (2007) (“Litigation seems attractive to many people mainly because the more

conventional means for addressing global warming – the development of treaties and other international

conventions, such as the Kyoto Accord – have been resisted by governments.”).

11 See, e.g., Hari M. Osofsky, Climate Change Legislation in Context, 102 Nw. U. L. Rev. Colloquy 245, at 249

(2008) (“[L]itigation plays a crucial role in the regulation of climate change and the legislation should not attempt

to preempt access to courts too broadly. Rather, the statutory scheme should provide a clear basis for concerned individuals and organizations to address inadequate regulation by government and failures by major emitters to

reduce their production of greenhouse gases.”).

12 Jolene Lin, Climate Change and the Courts, at 4–5 (unpublished manuscript, on file with the author).

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vehicles for achieving social change by introducing a third model of courts as arenas for social

and political movements to articulate their agendas.13

Lin argues that the goals of climate change

litigation include indirect effects beyond the litigation’s specific claims.14

This Part uses this discourse to frame its discussion of the primary impacts of climate

change litigation. Specifically, rather than focus on possible ways to substantively organize

these cases, as several commentators including Michael Gerrard and Lin have done,15

it engages

the formal and informal regulatory effects of this litigation. The formal regulatory impacts

largely fall within the first of Lobel’s categories, but that distinction is difficult to parse, as all of

the cases tend to be used to achieve goals in the second and third categories as well.16

The Part’s

analysis of formal regulatory impacts thus blends somewhat with its broader discussion of

informal regulatory impacts.

B. Formal Regulatory Impacts

Most fundamentally from a doctrinal perspective, these cases have a direct regulatory

impact which should not be lost in an analysis of their broader role. The vast majority of these

cases use existing law—primarily environmental law—to force or block regulatory behavior;

although some high profile cases fall into other categories, such as targeting major emitters

directly on common law public nuisance grounds, the regulatory disputes comprise nearly the

13 Jules Lobel, Courts as Forums for Protest, 52 UCLA L. Rev. 477 (2004).

14 Lin, supra note 12, at 4–5. 15 See id.; Gerrard, supra note 6.

16 See Lobel, supra note 13.

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entire current climate change caseload.17

Litigation served this direct regulatory function in a

particularly dramatic way under the U.S. Bush administration. Those advocating for and against

greater regulation used the courts as a primary battleground in the face of federal executive and

legislative inaction.18

However, even as President Obama has brought the United States more in line with other

nations on climate change, the regulatory impact of these cases in a wide range of tribunals

around the world has continued to matter. In some instances, like Massachusetts v. EPA,

implementation of decisions has provided the basis for executive action as legislation continues

to stall.19

In others, like those brought in the European Union over its emissions trading scheme,

an already-developed regulatory framework is refined.20

Moreover, many cases involve lower

profile disputes over whether a coal-fired power plant should move ahead or the extent to which

greenhouse gas emissions need to be considered in planning processes.21

Those cases, often

taking place in state or provincial courts in the United States and Australia, are generally less

intertwined with national policy debates, but rather underscore the pervasive regulatory questions

that climate change raises. Namely, they highlight the extent to which local and state decisions

17 See Gerrard, supra note 6.

18 See id. For discussion of a number of these cases, see Adjudicating Climate Change, Burns & Osofsky, eds.,

supra note 7.

19 See supra note 5 and accompanying text.

20 For a discussion of these cases, see Navraj Singh Ghaleigh, Emissions Trading Before the European Court of

Justice, in Legal Aspects of Carbon Trading: Kyoto, Copenhagen and Beyond (forthcoming Oxford Univ. Press

2009) (unpublished manuscript, on file with the author).

21 See Gerrard, supra note 6.

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about how urban growth proceeds or which power plants expand or come on-line are decisions

about our carbon footprint.22

Even the U.S. common law public nuisance cases, which directly target major corporate

emitters rather than governmental entities, have a direct regulatory impact. Namely, if they

ultimately succeed, the corporations face an injunction or damages. The recent U.S. Second and

Ninth Circuit decisions to allow public nuisance claims to move forward despite standing and

political question objections puts direct pressure on the companies sued and indirect pressure on

other automobile, power, and petrochemical companies to reduce emissions or face similar suits,

especially in a political climate in which some corporations are beginning to shy away from anti-

regulatory lobbying efforts, such as those by the U.S. Chamber of Commerce.23

Moreover, as

discussed by Jeffrey Stempel in Insurance and Climate Change Litigation, these suits may raise

insurance concerns for major emitters over time, which further adds to the potential for direct

and indirect pressure.24

If any of these suits results in a settlement or a judgment on the merits

against the corporations, even major emitters not directly affected by the decision will be under

significant pressure to reduce their greenhouse gas emissions.

22 For a discussion of some of these cases, see Hari M. Osofsky, Is Climate Change “International”?: Litigation’s

Diagonal Regulatory Role, 49 Va. J. Int’l L. 585 (2009); Lesley K. McAllister, Litigating Climate Change at the

Coal Mine, in Adjudicating Climate Change: State, National, and International Approaches, 48 (William C.G.

Burns & Hari M. Osofsky, eds., 2009); Hari M. Osofsky, Local Approaches to Transnational Corporate

Responsibility: Mapping the Role of Sub-National Climate Change Litigation, 20 Pac. McGeorge Global Bus. &

Dev. L.J. 143 (2007).

23 See Comer v. Murphy Oil, supra note 4; Connecticut v. AEP, supra note 4; Niv Elis, Discord in Chamber of

Commerce, Forbes, 5 October 2009, available at <www.forbes.com/2009/10/05/apple-chamber-commerce-business-washington-global-warming.html>.

24 See Jeffrey W. Stempel, Insurance and Climate Change Litigation, in Adjudicating Climate Change: State,

National, and International Approaches, 230 (William C.G. Burns & Hari M. Osofsky, eds., 2009).

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C. Broader Socio-Legal Impacts

As important from a broader law and society perspective, these cases have and continue

to change the public discourse about and cultural understanding of this problem in line with the

latter two goals of litigation that Lobel describes. David Hunter’s The Implications of Climate

Change Litigation: Litigation for International Environmental Law-Making analyzes the cases as

vehicles for promoting greater public awareness,25

and some of my prior work explores these

cases as part of a broader public policy dialogue about this problem.26

The attention that these

cases receive pressures policymakers to address this problem and draws attention to the plight of

vulnerable populations and ecosystems.

Both formally successful suits and those with little hope of achieving binding results have

together helped to change the regulatory landscape at multiple levels of government by putting

both legal and moral pressure on a wide range of individuals and entities to act.27

The finalizing

of the U.S. Environmental Protection Agency (EPA) endangerment finding in Massachusetts v.

EPA, for instance, was timed to coincide with the start of the December 2009 international

negotiations in Copenhagen; while it is unclear how much this action bolstered the U.S.

25 See David B. Hunter, The Implications of Climate Change Litigation: Litigation for International Law-Making, in

Adjudicating Climate Change: State, National, and International Approaches, 357 (William C.G. Burns & Hari M.

Osofsky, eds., 2009).

26 Hari M. Osofsky, Climate Change Litigation as Pluralist Legal Dialogue?, 26 Stanford Envtl. L.J. & 43 Stanford

J. Int’l L. 181 (2007).

27 Numerous legal theories explore these dynamics and their impact on international lawmaking. For example,

transnational legal process analyzes the interpretation, internalization, and enforcement of norms through

interactions like those described in these cases. See Harold Hongju Koh, Why Transnational Law Matters, 24 Penn

St. Int’l L. Rev. 745 (2006); Harold Hongju Koh, Jefferson Memorial Lecture: Transnational Legal Process after

September 11th, 22 Berkeley J. Int’l L. 337, at 339 (2004); Harold Hongju Koh, Transnational Legal Process, 75 Neb. L. Rev. 181 (1996); Harold Hongju Koh, Why Do Nations Obey International Law, 106 Yale L.J. 2599

(1997). Global legal pluralists and the New Haven School that often roots their analysis explore the multiple

normative communities that shape the lawmaking process. See Lasswell & McDougal, infra note 36; Berman, infra

note 36.

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negotiating position, especially given the broader political difficulties at that meeting, the public

reliance on the case in this international context reinforced its ongoing important policy role and

created additional pressure for national-level legislation.28

The listing of the polar bear as

“threatened” under the U.S. Endangered Species Act was accompanied by extensive media

analysis of climate change.29

In a smaller-scale dispute, the Hazelwood Mines dispute in

Australia not only mandated that greenhouse gas emissions be included as part of environmental

assessment but also resulted in the first-ever Greenhouse Gas Reduction Deed between the

Victorian government and International Power Hazelwood.30

At times, those involved in filing the petitions have even highlighted their expressive31

role explicitly. For example, Sheila Watt Cloutier, then chair of the Inuit Circumpolar

Conference, acknowledged the Inuit’s human rights petition as fundamentally about opening a

dialogue with the United States regarding climate change and human rights.32

Although the suit

was not formally successful—the Inter-American Commission on Human Rights rejected the

petition—it has resulted in a Commission hearing followed by a study on human rights and

28 Broder, Greenhouse Gases Imperil Health, EPA Announces, supra note 5.

29 See Cummings and Siegel, infra note 60.

30 See McAllister, supra note 22.

31 For an exploration of expressivism in the War on Terror context, see Mark A. Drumbl, The Expressive Value of

Prosecuting and Punishing Terrorists: Hamdan, the Geneva Conventions, and International Criminal Law, 75

Geo. Wash. L. Rev. 1165, at 1169 (2007).

32 See Presentation by Sheila Watt-Cloutier, Chair, Inuit Circumpolar Conference Eleventh Conference of Parties to

the UN Framework Convention on Climate Change Montreal, 7 December 2005,

<www.inuitcircumpolar.com/index.php?ID=318&Lang=En>; see also Hari M. Osofsky, The Inuit Petition as a

Bridge? Beyond Dialectics of Climate Change and Indigenous Peoples’ Rights, 31 Am. Indian L. Rev. 675 (2007).

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climate change, and more broadly on human rights and the environment, which arguably

represents part of such a dialogue.33

The direct regulatory impact of these suits thus represents only a small piece of their

value as part of transnational approaches to addressing climate change. The regulatory and

moral pressure that they bring to bear, together with the public attention that they garner, adds

significantly to their influence. This impact can at times push against particular regulatory

approaches, as many of these suits serve as challenges to policy action. In some instances,

multiple suits on the same statutory provision can push both for and against regulation, such as

the current corporate plans to challenge the U.S. EPA’s endangerment finding.34

Whichever

direction they push, however, they serve as part of the broader public policy dialogue on climate

change.

III. CLIMATE CHANGE LITIGATION AND REGULATORY SCALE

The lawsuits’ direct and indirect regulatory roles are influenced by the fact that

emissions, impacts, and the legal structures that interact with them over time cross-cut many

levels of social and legal ordering.35

The problem of climate change lies at the intersection of

33 See Letter from the Organization of American States to Sheila Watt-Cloutier, et al. regarding Petition No. P-

1413–05, 1 February 2007 (on file with the author); Letter from Sheila Watt-Cloutier, Martin Wagner, and Daniel

Magraw to Santiago Cantón, Executive Secretary, Inter-American Commission on Human Rights, 15 January 2007

(on file with the author); Letter from the Organization of American States to Sheila Watt-Cloutier, et al. regarding

Petition No. P-1413–05, 16 November 2006 (on file with the author); see also Jane George, ICC Climate Change

Petition Rejected, Nunatsiaq News, 15 December 2006, available at

<www.nunatsiaq.com/news/nunavut/61215_02.html>; Jonathan Spicer, Hearing to Probe Climate Change and

Inuit Rights, Reuters UK, 21 February 2007, available at <http://uk.reuters.com/article/idUKN204267120070221>.

34 See Christine Hall, CEI Will File Suit to Block EPA Endangerment Finding, Competitive Enterprise Institute Press Release, 7 December 2009, available at <http://cei.org/news-release/2009/12/07/cei-will-file-suit-block-epa-

endangerment-finding>.

35 For an in-depth exploration of climate change as a multiscalar regulatory problem, see Osofsky, Is Climate

Change “International”?, supra note 22.

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multi-level lawmaking and science in multiple ways, three of which are particularly critical to

this article’s analysis of cross-cutting climate change law and policy. First, any effort to

effectively address emissions, impacts, and adaptation through international law must engage the

complexities of climate science, particularly ways in which the problem cross-cuts our relatively

rigid levels of governance and the greater uncertainties that exist at smaller spatial and temporal

scales.36

Second, this intersection of hard sciences with international law raises critical questions

at the intersection of social science with international law, including the rich geography literature

interrogating the nature of our spatial orderings.37

Third, the combination of these two

intersections challenges our ability to think about climate change in purely traditional

international legal terms, as it seems unlikely that the treaty regime alone will effectively address

the problem and we do not yet have effective mechanisms for incorporating smaller scale efforts

on climate change into the treaty regime, either procedurally or substantively.38

This Part draws from these three intersectional issues to argue that the problem of climate

change and adjudication over it are simultaneously multiscalar and scale-dependent; the article

uses the term “multiscalar” to mean connected to more than one scale, whether spatial or

36 See National Research Council, Evaluating Progress of the U.S. Climate Change Science Program: Methods and

Preliminary Results 5 (2007), available at <http://books.nap.edu/openbook.php?isbn=0309108268> (“Information

at regional and local scales is most relevant for state and local resource managers and policy makers, as well as for

the general population, but progress on these smaller spatial scales has been inadequate. Improving understanding

of regional-scale climate processes and their impacts in North America, for example, would require improved

integrated modeling, regional-scale observations, and the development of scenarios of climate change and

impacts.”); Patrick J. Bartlein, Professor, Dep’t of Geography, Univ. of Or., Remarks at Seminar on Reading the

Fourth IPCC Assessment Report 2007 (17 October 2007) (unpublished notes, on file with the author).

37 I have, for example, explored this intersection with geography in more depth in previous articles. See Osofsky,

The Geography of Climate Change Litigation, supra note 7; Hari M Osofsky, The Geography of Climate Change

Litigation Part II: Narratives of Massachusetts v. EPA, 8 Chicago J. Int’l L. 573 (2008).

38 I have analyzed these scalar difficulties in more depth. See Osofsky, Is Climate Change “International”?, supra

note 22.

14

temporal, and “scale-dependent” to mean tied to a particular scale.39

In other words, individuals,

localities, states, nations, regional supranational bodies, international entities, and other actors at

many intermediate levels make emissions decisions, suffer the impacts of climate change, and

bring, defend against, and adjudicate these suits. However, because lawsuits and petitions, as a

formal matter, are adjudicated at particular levels of governance over time, an engagement of

specific decisionmaking scales also must inform an exploration of these actions’ significance.

The Part begins by detailing the multiscalar regulatory problem posed by climate change, and

then turns to an exploration of the spatial and temporal rescaling that takes place through climate

change litigation.

A. Multiscalar Dimensions of Climate Change Regulation

Climate change poses a dual regulatory problem. At the front end, there are questions

about controlling emissions (which was initially framed by policymakers as preventing human-

induced climate change, but at this point, things are far enough along, that it really is about

mitigation—limiting the extent to which we cause more climate change). At the back end,

climate change is about impacts and adaptation to those impacts (an issue that becomes ever

39 As discussed in more depth in Part III, the concept of scale is a highly contested one in the literature of many

disciplines. For discussion of that contestation in the geography literature, see Neil Brenner, New State Spaces:

Urban Governance and the Rescaling of Statehood 9 (2004); Neil Brenner, The Limits to Scale? Methodological

Reflections on Scalar Structuration, 25 Progress Hum. Geography 591 (2001); Sallie A. Marston, The Social

Construction of Scale, 24 Progress Hum. Geography 219 (2000); and Sallie A. Marston & Neil Smith, States,

Scales and Households: Limits to Scale Thinking? A Response to Brenner, 25 Progress Hum. Geography 615

(2001). For interdisciplinary analyses of these issues more directly tied to environmental regulatory problems, see Michael Mason, Transnational Environmental Obligations: Locating New Spaces of Accountability in a Post-

Westphalian Global Order, 26 Transactions British Geographers 407 (2001); Osofsky, The Intersection of Scale,

Science, and Law in Massachusetts v. EPA, infra note 51; and Nathan F. Sayre, Ecological and Geographical

Scale: Parallels and Potential for Integration, 29 Progress Hum. Geography 276, at 281 (2005).

15

more important as the problem worsens).40

This Section’s focus is not on recounting all of

climate science and the near scientific certainty that human emissions matter, but rather on the

fact that emissions, impacts, and adaptation intersect with decisionmaking from the smallest to

the largest levels.

As I have discussed in more depth in Is Climate Change International? Litigation’s

Diagonal Regulatory Role, greenhouse gases result from simultaneous decisions at multiple

levels of governance, many of which are deeply tied into state-corporate regulatory dynamics

around energy production and consumption.41

A brief examination of motor vehicles emissions

regulation in the United States highlights this point. At the core of this regulation are individual

choices about our form of transportation. But these choices are influenced by local land use

planning and the way in which the distances between where people live, work, and shop are

structured. Those individual and local decisions interact with state policies about motor vehicle

emissions, such as California’s efforts to regulate through a Clean Air Act Waiver and its state

courts’ consideration of those efforts, as well as federal regulation of motor vehicles and their

emissions. These state and federal efforts involve all three branches of government. For

example, at a federal level, motor vehicles greenhouse gas emissions regulation includes

executive action by the EPA in its endangerment finding under the Clean Air Act and through

proposed joint U.S. EPA/Department of Transportation rulemaking on fuel economy standards;

legislative action through existing and future statutes; and judicial action, such as the Supreme

Court’s decision in Massachusetts v. EPA which led to the endangerment finding. Moreover, in

40 See Climate Change 2007: Impacts, Adaptation and Vulnerability, Intergovernmental Panel on Climate Change

(2007), available at <www.ipcc.ch/ipccreports/ar4-wg2.htm> [hereinafter IPCC, Impacts]; Climate Change 2007:

Mitigation of Climate Change, Intergovernmental Panel on Climate Change (2007), available at

<www.mnp.nl/ipcc/pages_media/AR4-chapters.html>.

41 See Osofsky, Is Climate Change International?, supra note 38, at 591–602.

16

the globalized, carbon-based economy, these multi-level domestic efforts interact with bilateral,

regional, and international agreements that determine what are carbon commitments are, as well

as which vehicles the United States imports and exports and how expensive they will be.42

This type of analysis does not just apply to transportation choices in the United States,

but to the broad range of individual, corporate, nongovernmental, and governmental decisions

that influence emissions from different sources at multiple levels around the world. In addition,

once one moves beyond an examination of any one country to a more global view, these

multiscalar choices around emissions under the current climate treaty structure intertwine

emerging and developed economies. For example, many of the complexities at the recent

conference in Copenhagen resulted from disputes over what the differential obligations of

countries at multiple levels of development and with varying levels of resources should be.43

Mitigation and adaptation similarly present challenges at every level of governance. The

Intergovernmental Panel on Climate Change has described the uneven distribution of impacts as

climate change causes very specific changes in individual places. Unfortunately, its reports

indicate that climate change will have the most problematic physical impacts in places that have

the most limited economic and political resources available for adaptation.44

Individual people face difficult choices as their physical environment changes. They

must decide how to adapt and whether or not they can and should leave their communities as

they face the impacts of climate change, such as looming glacial lakes building above their

villages or increasing risks of coastal storms. People often come up with innovative solutions;

42 See id. at 592–97.

43 See Andrew C. Revkin & John M. Broder, A Grudging Accord in Climate Talks, N.Y. Times, 20 December 2009,

at A1, available at <www.nytimes.com/2009/12/20/science/earth/20accord.html?_r=1&emc=eta1>.

44 See IPCC, Impacts, supra note 40.

17

some European ski resorts have taken to wrapping their glaciers to preserve them.45

But those

who have fewer resources and live in close proximity to the land often face more limited options

in the face of these changes.46

These adaptation choices, like those around emissions, take place within a multilevel

regulatory framework. Governmental entities, in conjunction with private actors, decide how to

respond to these changes, and the extent to which they can and will support the individuals

facing tough choices. These decisions, which determine policy on relevant issues such as land

use planning, flood control, and disaster relief, frame the possibilities for affected individuals as

they suffer the effects of climate change in particular places.47

And to make things even harder, the regulatory problems of scale on both emissions and

impacts/adaptation do not simply involve levels of government, but also complexities of time.

Greenhouse gases emitted at one point in time will cause impacts at various future times. For

example, the atmosphere may respond within decades to radiative forcing that will not manifest

in the oceans for centuries. Policymakers have to grapple with whether there is sufficient

political will to take the measures needed now to prevent medium- and long-term issues, and

with how much caution to use in the face of the small but increasing risk of sudden catastrophic

climate change as the atmosphere becomes more loaded with greenhouse gases.48

The many governmental and nongovernmental actors interested in emissions, impacts,

and adaptation must navigate these complexities of time and space as they debate the appropriate

45 See Cloak Protects Glacier from Sun, BBC News, 10 May 2005, available at

<http://news.bbc.co.uk/2/hi/europe/4533945.stm>.

46 See Osofsky, Is Climate Change International?, supra note 38, at 593–602. 47 See id. at 593–602.

48 See id. at 591–602.

18

policy solutions. Climate change cannot be solved through regulation at a particular moment in

time at a fixed level of government. Rather, the efforts at different levels of government must be

interconnected in a forward-looking fashion, an effort made all the harder by the ways in which

emissions choices are imbedded in economy and culture around the world. The difficulty of this

task makes a cooperative, effective scheme involving all the relevant actors seem nearly

impossible, even assuming sufficient political will existed.49

B. Climate Change Litigation as a Spatial Rescaling Mechanism

The spatially cross-cutting nature of this problem raises fundamental questions for those

attempting to address it through lawsuits and other petitions. This Section builds from the

general multiscalar regulatory problem that climate change poses to focus on the spatial rescaling

role (i.e., reordering how different levels of government approach the problem in combination

with one another) of climate change litigation. It engages the role that litigation does and should

play in establishing appropriate regulatory scale and actors at that scale.

To explore that issue, one must have some idea of what spatial scale means. At the

surface, such a definition seems attainable, especially when conversing in the language of law.

Each suit was brought in a particular tribunal, which operates at a designated level of

governance. We can label cases as state, national, regional, or international based on the type of

tribunal hearing them. An examination of almost any of these disputes, however, reveals the

danger of such a simple characterization. For example, the U.S. Supreme Court case

Massachusetts v. EPA50

could be characterized as national-level based on both the adjudicating

49 See id. at 591–602.

50 See Massachusetts v. EPA, supra note 1.

19

tribunal and the case’s focus on federal law.51

But such a categorization would fail to capture

other aspects of the dispute’s scale; the parties on both sides of the case included local and state

governments focusing primarily on potential threats to local and state-based interests, as well as

nongovernmental and corporate entities with ties at multiple scales. And, as discussed in my

prior work on that case, the “federal law” dispute centered around questions of the appropriate

scale at which to regulate climate change.52

These types of definitional quandaries have been explored extensively in the geography

literature on scale. Although human geographers increasingly agree that scale is socially

constructed, foundational debates have raged over the past decade about what scale is and how it

might be relevant to analyses of regulation.53

An issue from these dialogues with particular

salience for climate change litigation is the question of scale’s fixity and fluidity.54

Namely, to

what extent are the scalar categories into which one might group these lawsuits – state, national,

and international – terms that actually have meaning? As government and civil society interact

with the problem of climate change, are these scales steady organizational groupings or

51 See Hari M. Osofsky, The Intersection of Scale, Science, and Law in Massachusetts v. EPA, 9 Oregon R. Int’l L.

233 (2007) (actual publication 2008).

52 See id.

53 See supra note 10.

54 For discussion of issues of fixity and fluidity, see Kevin R. Cox, Spaces of Dependence, Spaces of Engagement

and the Politics of Scale, Or: Looking for Local Politics, 17 Pol. Geography 1, at 20–21 (1998); David Delaney &

Helga Leitner, The Political Construction of Scale, 16 Pol. Geography 93, at 93 (1997); Andrew Herod, Scale: The

Local and the Global, in Key Concepts in Geography 229, at 234 and 242 (Sarah L. Holloway, Stephen P. Rice &

Gill Valentine, eds., 2003); Deborah G. Martin, Transcending the Fixity of Jurisdictional Scale, 17 Pol. Geography

33, at 35 (1998); Anssi Paasi, Place and Region: Looking Through the Prism of Scale, 28 Progress Hum.

Geography 536, at 542–43 (2004); Neil Brenner, Between Fixity and Motion: Accumulation, Territorial

Organization and the Historical Geography of Spatial Scales, 16 Envt. & Planning D: Soc’y & Space 459, at 461 (1998); Erik Swyngedouw, Excluding the Other: The Production of Scale and Scaled Politics, in Geographies of

Economies 167, at 169 (Roger Lee & Jane Wills, eds., 1997); Erik Swyngedouw, Neither Global nor Local:

“Glocalization” and the Politics of Scale, in Spaces of Globalization: Reasserting the Power of the Local 137, at

141 (Kevin R. Cox, ed., 1997).

20

constantly shifting spaces of engagement? How does scale shape regulatory decisionmaking and

vice versa?

And yet for all this literature’s engagement with scale, it rarely separates out law from

other sociopolitical ordering.55

“Regulation” lumps together formal and informal social ordering.

Although such an approach avoids the formalism that too often dominates the legal literature,

and that at times prevents an analysis of all relevant stakeholders and decisionmakers,56

it can

undervalue the role of formal legal institutions in shaping and being shaped by scale.

Law and legal institutions are structured at specific levels of governance, which, despite

all of the shifts wrought by globalization, stay relatively stable most of the time. The tribunals

adjudicating climate change litigation and the laws that they are relying upon generally are

constituted at specific, fixed scales. For example, the Inter-American Commission on Human

Rights is a supranational, regional body established through the Organization of American

States.57

At the other end of the spectrum, the Minnesota Court of Appeals is a judicial body

created by the state of Minnesota to interpret its laws.58

55 But see Dennis R. Judd, The Case of the Missing Scales: A Commentary on Cox, 17 Pol. Geography 29, at 30–31

(1998) (analyzing the effect of federalism in the United States). 56 The legal pluralist literature, for example, engages the importance of addressing the multiple normative

communities – formal and informal – that share social spaces. Robert M. Cover, The Supreme Court 1982 Term

Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4 (1983); Sally Engle Merry, Legal Pluralism, 22 Law & Soc’y

Rev. 869 (1988); Emmanuel Melissaris, The More the Merrier? A New Take on Legal Pluralism, 13 Soc. & Legal

Stud. 57 (2004); Ambreena Manji, ‘Like a Mask Dancing’: Law and Colonialism in Chinua Achebe’s Arrow of

God, 27 J. Law & Soc’y 626 (2000); Dalia Tsuk, The New Deal Origins of American Legal Pluralism, 29 Fla. St.

U. L. Rev. 189 (2001); Paul Schiff Berman, Global Legal Pluralism, 80 S. Cal. L. Rev. 1155 (2007). Similarly, the

New Haven School of international law views law as “a process of authoritative decision by which members of a

community clarify and secure their common interests” and argues that “humankind today lives in a whole hierarchy

of interpenetrating communities, from the local to the global.” Harold D. Lasswell & Myres S. McDougal,

Jurisprudence for a Free Society: Studies in Law, Science and Policy xxi (1992). 57 For a discussion of the petition to the Inter-American Commission on Human Rights, see Osofsky, supra note 32.

58 For a discussion of the Minnesota case, see Stephanie Stern, State Action as Political Voice in Climate Change

Policy: A Case Study of the Minnesota Environmental Cost Valuation Regulation, in Adjudicating Climate Change:

21

The fluidity in the scales of this litigation comes not from the tribunals themselves, then,

but rather from the multiscalar nature of the problem of climate change and regulatory efforts to

address it. These “fixed” entities, in their stability, provide a framework in which contestation

across scales can take place. As petitioners and respondents debate appropriate emissions limits

and redress for those harmed, they also argue about whether climate change is solely a large-

scale regulatory problem or one that is appropriate for smaller-scale legal action. Often those

who want to block regulation scale up, claiming that climate change is too big a problem for

local, state, and even national regulation. In contrast, those who want more regulation tend to

scale down, and focus on the ways in which emissions, impacts, and adaptation take place at

smaller spatial and temporal scales. These dynamics make litigation a central mechanism

through which interested parties attempt to rescale regulatory mechanisms related to greenhouse

gas emissions and impacts.

The cases thus debate the appropriateness and necessity of regulatory entities at different

scales taking particular steps to address global climate change. For example, should the World

Heritage Commission be addressing the impacts of climate change on protected world heritage

sites? If so, what should its role be?59

If the impacts of climate change threaten species, at what

point should they be listed as endangered under the U.S. Endangered Species Act (ESA)? What

specific obligations should such listing entail?60

When localities in Victoria, Australia, engage in

State, National, and International Approaches, 31 (William C.G. Burns & Hari M. Osofsky, eds., 2009); Osofsky,

Local Approaches to Transnational Corporate Responsibility, supra note 22.

59 For a discussion of the World Heritage Commission petitions, see Erica J. Thorson, The World Heritage

Convention and Climate Change: The Case for a Climate-Change Mitigation Strategy Beyond the Kyoto Protocol,

in Adjudicating Climate Change: State, National, and International Approaches, 255 (William C.G. Burns & Hari M. Osofsky, eds., 2009).

60 For a discussion of the U.S. Endangered Species Act actions, see Sarah Jane Morath, The Endangered Species

Act: A New Avenue for Climate Change Litigation, 29 Pub. Land & Resources L. Rev. 23 (2008); Brendan R.

Cummings & Kassie R. Siegel, Biodiversity, Global Warming, and the U.S. Endangered Species Act: The Role of

22

environmental assessments of planned projects, should that process include an examination of

climate impacts? If so, which climate impacts?61

Moreover, these regulatory questions are made even more complex by the mixed public-

private nature of the decisions involved. When can U.S. states sue federal agencies to compel

them to regulate greenhouse gas emissions? When can they sue the major corporate emitters

directly? Should governmental victims of climate change be treated differently than private

property owners? Than indigenous communities? Because climate change results from emissions

by individuals, governments, and corporations at multiple scales, the litigation embodies

dynamic interactions among relevant public and private parties.

Litigation’s mix of scalar fluidity and fixity therefore makes it a particularly helpful tool

for spatial rescaling. Although individual regulators and corporations operate at specific, even if

multiple, levels within a legal framework, the tribunals have the power to rule upon what is

appropriate at a given level. In so doing, they help to shape the scale at which regulation occurs.

Massachusetts v. EPA, for example, involved a dispute over whether climate change was a

“state,” “federal,” or “international” problem. Procedurally, the case hinged on whether the

harms of climate change were small scale enough, in terms of both time and space, for states to

have standing to sue. Substantively, the court had to determine whether the Clean Air Act, a

federal law, created obligations for the U.S. Environmental Protection Agency to regulate motor

Domestic Wildlife Law in Addressing Greenhouse Gas Emissions, in Adjudicating Climate Change: State,

National, and International Approaches, 145 (William C.G. Burns & Hari M. Osofsky, eds., 2009). See generally

J.B. Ruhl, Climate Change and the Endangered Species Act: Building Bridges to the No-Analog Future, 88 Boston

U. L. Rev. 1 (2008) (proposing a policy approach for the U.S. Fish and Wildlife Service).

61 For a discussion of the pending cases in Australia over coal mining, see Tracy Bach & Justin Brown, Recent

Developments in Australian Climate Change Litigation: Forward Momentum from Down Under, 8 Sustainable

Dev. L. & Pol'y 39 (2008); McAllister, supra note 22; Osofsky, Local Approaches to Transnational Corporate

Responsibility, supra note 22.

23

vehicles’ greenhouse gas emissions; in the process, questions abounded over whether climate

change was “too big” to regulate at that level or at the state level. The U.S. Supreme Court’s

answer – to which the Obama administration, unlike the Bush administration that preceded it, is

rapidly responding62

– established as appropriate interest in the problem at a state scale and

regulation at a federal scale.63

Moreover, as discussed in more depth in Part IV, the

implementation of that opinion in part through the Obama administration’s National Plan has

resulted in a top-down scheme developed through cooperation with state governments and key

corporate actors.

At the supranational level, the Inter-American Commission on Human Rights, in

response to the Inuit petition, had to decide whether it should attempt to push the United States to

regulate climate change more aggressively. Or in scalar terms, should a regional supranational

body pressure a nation-state to address more effectively this multiscalar problem that is

producing harms in indigenous communities in two nation-states within its region? Ultimately,

the Commission decided to hold a more general hearing rather than address the petition directly.

In holding such a hearing and moving beyond that hearing to study the problem further, it is

engaging the question of whether and how climate change and environmental protection more

broadly are regional human rights issues.64

When viewed as a whole, rather than in individual snapshots, then, the litigation serves as

a lever in regulatory contestation over how to address this looming problem. The rescaling

62 For the Bush administration’s response, see Advance Notice of Proposed Rulemaking: Regulating Greenhouse

Gas Emissions under the Clean Air Act, EPA-HQ-OAR-2008–0318, 11 July 2008, available at

<www.epa.gov/climatechange/anpr.html>. For the Obama administration’s response thus far, see supra note 5.

63 For an analysis of these issues, see Osofsky, The Intersection of Scale, Science, and Law in Massachusetts v. EPA,

supra note 51.

64 For further discussion of this case, see Osofsky, The Inuit Petition as a Bridge, supra note 57.

24

through litigation takes place in the broader policy and cultural context described in Part II and

thus interacts both with the formal decisions by tribunals and with how people view their value.

How one regards the appropriateness of rescaling through litigation often will relate to how one

views the optimal scale of climate regulation. Those who argue for “scaling up” – that is, view

the problem as one only appropriate for larger scale management – over the course of litigation

express concern about opinions that “scale down” but think more positively of ones that prevent

smaller-scale regulation. Their opponents, who value smaller-scale regulation, generally have the

opposite perspective.65

In a variety of fixed fora, petitioners attempt to reshape the regulatory

map at multiple scales and change the scale of regulation. The litigation serves a way to foster

interaction across levels of government and engage disagreement about the ways in which

various actors at a range of regulatory levels should be taking action.

C. Climate Change Litigation as a Temporal Rescaling Mechanism

The previous section focuses on spatial scale, and the role that climate change litigation

plays in helping regulators grapple with the many levels of governance with which the problem

intersects. However, both the problem itself and attempts to address it must also engage

complexities of time. As noted above, regarding the science, climate change happens over long

periods of time. Current changes result from past emissions and present emissions will cause

future changes. These multiple time scales of the problem mean that regulatory efforts always

65 For analysis of scalar battles in climate change litigation, see Osofsky, Is Climate Change “International”?, supra

note 22; Osofsky, The Intersection of Scale, Science, and Law in Massachusetts v. EPA, supra note 51.

25

must interlink the past and the future to decide what is appropriate now in terms of ascription of

responsibility for climate change related damages and emissions reduction mandates.66

Moreover, the existing and potential cases regarding climate change span more than one

time-period. Some of them concluded in the past,67

others are ongoing,68

and still others only

exist as a possible future.69

The disputes discussed in this article reflect the many time scales on

which climate regulation takes place and the difficult questions that result. Is there enough

scientific certainty about how past emissions have resulted in present change, or current

emissions will result in future change? What will be accomplished by acting now and what are

the risks of failing to act? Which people and entities have the obligation and/or right to act

when?

These questions of time interact with complexities of spatial scale discussed in the

previous section. How quickly climate change creates impacts people care about and how

66 For analyses of some of the intergenerational complexities of addressing climate change, see Edward A. Page,

Climate Change, Justice and Future Generations (2006); Burns H. Weston, Climate Change and Intergenerational

Justice: Foundational Reflections, 9 Vt. J. Envt’l L. 375 (2008).

67 For example, Stern’s discussion of the Minnesota case focuses on an action that took place in the mid-1990s but

that has ongoing implications. See Stern, supra note 58.

68 Some of the nuisance suits described by David Grossman and Jeffrey Stempel, for instance, are currently pending.

See David A. Grossman, Tort-Based Climate Litigation, in Adjudicating Climate Change: State, National, and

International Approaches, 193 (William C.G. Burns & Hari M. Osofsky, eds., 2009); Stempel, Insurance and

Climate Change Litigation, supra note 24.

69 For example, potential actions described by William Burns; Jennifer Gleason and David Hunter; Andrew Strauss;

and Mary Wood have yet to be filed. See William C.G. Burns, Potential Causes of Action for Climate Change

Impacts under the United Nations Fish Stocks Agreement, in Adjudicating Climate Change: State, National, and

International Approaches, 314 (William C.G. Burns & Hari M. Osofsky, eds., 2009); Jennifer Gleason & David B.

Hunter, Bringing Climate Change Claims to the Accountability Mechanisms of International Financial Institutions,

in Adjudicating Climate Change: State, National, and International Approaches, 292 (William C.G. Burns & Hari

M. Osofsky, eds., 2009); Andrew Strauss, Climate Change Litigation: Opening the Door to the International Court

of Justice, in Adjudicating Climate Change: State, National, and International Approaches, 334 (William C.G.

Burns & Hari M. Osofsky, eds., 2009); Mary Christina Wood, Atmospheric Trust Litigation, in Adjudicating

Climate Change: State, National, and International Approaches, 99 (William C.G. Burns & Hari M. Osofsky, eds.,

2009).

26

different levels of governance around the world respond will determine what suits people are

motivated to bring and their likelihood of success. The less effective we are in addressing the

issue of climate change, the more salient these actions will become.70

Although significant uncertainty continues to surround that interaction, the current

regulatory gaps suggest that the impacts of climate change will likely become more significant

before our regulatory efforts catch up to the problem, assuming optimistically that they

eventually will.71

The Kyoto Protocol has struggled to reach its goals because of

nonparticipation of major emitters like the United States and many Parties’ difficulties in

meeting their commitments. Moreover, it does not go far enough to achieve the reductions that

scientists say are necessary. Although recognition of the problem has increased dramatically in

recent years, and efforts are under way to create a post-2012 regime that will be more effective

than the Kyoto Protocol, it appears unlikely that the treaty regime alone will be able to “solve”

the problem. Even with the United States participating more constructively under President

Obama, as witnessed at Copenhagen with the large number of administration officials

participating and the President’s speech and other efforts at the conference, progress remains

slow.72

An important last-minute intervention by President Obama could only bring a non-

binding accord that parties “took note” of, but did not adopt as a decision of the conference. In

addition, the commitments made since under the Copenhagen Accord have generally taken the

70 Even those more skeptical of the value of this litigation acknowledge that regulatory failures are creating a context

for such actions. See Posner, supra note 10, at 1925.

71 See William C.G. Burns & Hari M. Osofsky, Overview: The Exigencies That Drive Potential Causes of Action for

Climate Change, in Adjudicating Climate Change: State, National, and International Approaches, 1 (William C.G.

Burns & Hari M. Osofsky, eds., 2009).

72 See id.

27

form of countries promising to take significant action if other state parties do the same (or in the

United States case, if other state parties due the same and its Congress passes legislation).73

With the increasing recognition of the problem, national and subnational regulatory

efforts are also developing rapidly, but these efforts also probably will not go far enough fast

enough. At a national level, major emitters are under pressure to address their emissions, and

they likely will regulate more effectively than they have in the past. When proposed regulations

are compared with the pace of emissions and atmospheric change, however, countries may not

have sufficient political will to make drastic enough reductions.74

An ever-increasing number of

state and local-level governments are committing to incorporating climate mitigation and

adaptation policies into their laws and planning efforts, even governments that might have

appeared improbable a few years ago, such as Tulsa, Oklahoma.75

Although those smaller-scale

efforts represent significant emissions – the international network of localities working on

climate change, for example, represents roughly 15% of the global total76

– and these

transnational coalitions of smaller-scale entities participate very actively in side forums at

73 See Copenhagen Accord of 18 December 2009, Decision -/CP.15, available at

<http://unfccc.int/files/meetings/cop_15/application/pdf/cop15_cph_auv.pdf> (viewed 23 December 2009); United

Nations Framework Convention on Climate Change, Information Provided by Parties to the Convention on the

Copenhagen Accord, http://unfccc.int/home/items/5262.php (last visited Feb. 12, 2010); Arthur Max, Obama

Brokers a Climate Deal, Doesn’t Satisfy All, Associated Press, 19 December 2009, available at

<www.google.com/hostednews/ap/article/ALeqM5i9TuMrvrknh-ZXwqmZ2N-48kff3wD9CM7ELG2>.

74 See Burns & Osofsky, Overview, supra note 71.

75 See Kevin McCarty, Bloomberg, Palmer Lead USA and World Mayors on Climate Protection: US Mayors

Climate Agreement Hits 500 Milestone, U.S. Mayor Newspaper, 21 May 2007, available at

<www.usmayors.org/USCM/us_mayor_newspaper/documents/05_21_07/pg1_NYC_climate.asp> (viewed 10 September 2008); see also Hari M. Osofsky & Janet Koven Levit, The Scale of Networks? Local Climate

Coalitions, 8 Chi. J. Int’l L. 409 (2008).

76 See ICLEI Global, About CCP, <www.iclei.org/index.php?id=811> (viewed 10 September 2008).

28

international negotiations, their efforts often are not well integrated with larger-scale formal

ones.77

In the near term, then, the regulatory insufficiency of current policy efforts gives

continued importance to litigation’s gap-filling role. Given the need for progress and the ways in

which emissions, impacts, and adaptation interact with numerous substantive areas of law, these

suits probably will continue their explosive growth accompanied by some formal successes –

particularly in the U.S. context – which we have seen over the past several years. Moreover, as

courts continue to set precedents and the problem evolves, particular legal strategies will become

more or less effective.78

Even if regulatory efforts improve, as appears more likely in the United States since the

2008 elections, these suits likely still remain an important lever within transnational regulation of

climate change in part because of the way in which they engage the cross-cutting nature of the

problem. Their ability to rescale and to connect people across spatial and temporal scales—

together with their interaction with many areas of law, from environmental to corporate to tort to

urban planning—makes them an important piece in an ongoing regulatory dialogue. These

lawsuits provide unique opportunities for people to raise concerns and serve as an impetus for

action. Unless widespread agreement exists on an appropriate cross-cutting regulatory solution to

this problem, courts and other fora likely will remain a key space in which people contest and

create climate regulation.

77 For example, Mayor Gavin Newsom discussed this lack of integration as a problem, as well as some of the city’s efforts to collaborate with entities at multiple scales, in answer to a question I asked following his keynote address

at the conference Surviving Climate Change: Adaptation and Innovation, University of California, Hastings,

College of the Law, Monterey Institute of International Studies, 4 April 2008.

78 Gerrard, supra note 6.

29

IV. DIAGONAL FEDERALISM AND CLIMATE CHANGE LITIGATION

Despite the multiscalar nature of climate change and the way in which it interacts with a

wide substantive range of regulation at different levels, regulatory collaboration that involves

multiple levels of government and a wide range of entities within each level remains relatively

rare. Often, these efforts tend to be predominantly vertical, with a top-down or bottom-up

scheme involving different levels of government, or predominantly horizontal, with different

governmental entities at the same level working together.79

Although many policymakers

acknowledge the importance of cross-cutting efforts – and some innovative initiatives exist –

much more progress needs to be made in thinking through what I have elsewhere termed

“diagonal regulation,” which involves approaches that interconnect efforts both vertically and

horizontally.80

In particular, I have developed a taxonomy for breaking down and understanding the

multi-dimensional nature of diagonal regulatory strategies as part of dynamic federalist

approaches that involve multiple levels of government in complex variations. The U.S. dynamic

federalism moves beyond the traditional debates of federal government versus state government

to exploring the more fluid, multi-level regulatory models. 81

This taxonomy contributes to that

conversation, both as a conceptual and practical matter by considering the ways in which cross-

cutting regulatory solutions vary in four dimensions over time: scale (large versus small), axis

(vertical versus horizontal), hierarchy (top-down versus bottom-up), and cooperativeness

(cooperation versus conflict/competition). In so doing, the taxonomy builds upon my previous

79 See Osofsky, Is Climate Change “International”?, supra note 22.

80 See id.

81 For a discussion of these approaches, see Kirsten H. Engel, Harnessing the Benefits of Dynamic Federalism in

Environmental Law, 56 Emory L.J. 159, at 176 (2006).

30

law and geography work on climate change by mapping the core dimensions of cross-cutting

efforts to address this problem.82

My key policy take away point regarding the taxonomy’s

application to litigation, which this Part explores, is that these cases can change the scale, axis,

direction of hierarchy, and level of cooperativeness in climate change policy interactions. In so

doing, litigation can serve as a critical force in creating more effective cross-cutting regulatory

approaches, both through its substantive impact and through the pressure it puts on policymakers

and major emitters.

The Part applies the taxonomy to two examples of U.S. litigation over motor vehicles

greenhouse gas emissions regulation under an existing federal environmental law, the Clean Air

Act, to reflect upon the how the diagonal character of these cases influences their regulatory role.

First, the U.S. Supreme Court case Massachusetts v. EPA focused on the EPA’s denial of a

rulemaking petition requesting that greenhouse gas motor vehicle emissions be regulated as

causing or contributing to “air pollution which may reasonably anticipated to endanger public

health or welfare.”83

The appellees consistently argued that the problem was too international in

scope and rife with scientific uncertainty for EPA regulation, while the appellants—who the

Supreme Court sided with—focused on state and local impacts and the appropriateness of federal

action.84

After many months of stalling by the EPA under the Bush administration, the Obama

administration EPA has already issued an endangerment finding. This finding could lead to

82 See Hari M. Osofsky, Diagonal Federalism and Climate Change: Implications for the Obama Administration, __

Alabama L. Rev. __ (forthcoming 2010) (unpublished manuscript, on file with the author); Hari M. Osofsky,

Multi-Dimensional Environmental Federalism: A Law and Geography Approach (unpublished manuscript, on file

with author).

83 Massachusetts v. EPA, supra note 1.

84 I have analyzed the scalar dynamics in this case in depth. See Osofsky, The Intersection of Scale, Science, and

Law in Massachusetts v. EPA, supra note 51.

31

extensive Clean Air Act regulation of motor vehicle greenhouse gas emissions if Congressional

legislation does not supplant it and judicial challenges do not derail it.85

Second, while the Clean Air Act generally preempts state-level motor vehicle emissions

regulation, it contains an exception by which California can apply for a waiver to exceed federal

standards. When the U.S. EPA grants this waiver, which it generally did before the question of

greenhouse gas motor vehicles emissions arose, other states can then choose between California

and federal standards. The U.S. EPA under President Bush, however, denied California’s

request for a waiver to regulate greenhouse gas motor vehicles emissions,86

which resulted in

multiple lawsuits and political efforts in Congress to overturn the denial. Resolution came

shortly after President Obama took office in 2009, with the EPA’s reconsideration and grant of

the waiver, a grant that resulted in a new suit by the Chamber of Commerce and the National

Automobile Dealers Association to block the regulations.87

The waiver grant came in parallel

with efforts by the Obama administration, partially in response to Massachusetts v. EPA, to set

more rigorous national standards. Through a compromise with both major corporate emitters

85 See supra notes 5 & 34 and accompanying text.

86 Air Quality Act of 1967, Pub. L. No. 90-148, 81 Stat. 485 (codified as amended at 42 U.S.C. §§ 7401–7671 (2004)); Clean Air Act Amendments of 1977 § 129(b), Pub. L. 95-95, 91 Stat. 750 (codified as amended at 42

U.S.C. § 7507 (2000)). For the U.S. EPA’s waiver denial, see Letter from Stephen L. Johnson, Adm’r, U.S. Envtl.

Prot. Agency, to Arnold Schwarzenegger, Governor of Cal. (19 December 2007), available at

<http://ag.ca.gov/cms_attachments/press/pdfs/n1514_epa-letter.pdf>.

87 For California’s Petition for Review to the Court of Appeals for the Ninth Circuit, see Petition for Review of

Decision of the United States Environmental Protection Agency, California v. EPA, No. 08-70011 (9th Cir., 2008),

available at <http://ag.ca.gov/cms_attachments/press/pdfs/n1514_epapetition-1.pdf>. For the Obama

Administration’s reconsideration, see California State Motor Vehicle Pollution Control Standards; Greenhouse

Gas Regulations; Reconsideration of Previous Denial of a Waiver of Preemption, 74 Fed. Reg. 7040 (2009);

Memorandum on the State of California Request for Waiver Under 42 U.S.C. 7543(b), the Clean Air Act, 74 Fed.

Reg. 4905 (2009), available at <http://edocket.access.gpo.gov/2009/pdf/E9-1939.pdf>. For the industry challenge to the waiver grant, see Petition for Review, Chamber of Commerce v. EPA, No. 09-1237, (D.C. Cir., 2009),

available at <www.uschamber.com/assets/nclc/chamber_epa.pdf> (viewed 27 October 2009).; Jim Tankersley,

Stricter Vehicle Emissions Rules are Targeted, L.A. Times, 11 September 2009, <www.latimes.com/business/la-fi-

emissions-waiver11-2009sep11,0,1938672.story>.

32

and California, the Obama administration has crafted a National Plan to harmonize state and

federal vehicle emissions standards by 2012.88

Although these cases on the surface both involve domestic law issues in one country,

they raise critical questions about the nature of and appropriate level for multiscalar climate

regulation and about the role that litigation should play in it. These suits are not just about the

technical regulatory question at hand, but form part of a larger debate about how domestic

regulatory systems, and especially governmental units smaller than the nation state, should fit

into international and accompanying national legal efforts to address climate change. While one

could dismiss these interactions as simply relevant to how one nation-state meets its international

obligations, this Part argues that the lawsuits’ diagonal character helps to address dilemmas of

how an international legal system grounded on agreements between sovereign and equal nation-

states should address cross-cutting problems with key stakeholders at smaller scales. The Part

introduces diagonal regulation as part of environmental federalism debates and applies the

taxonomy of diagonal regulation to these two cases. It then analyzes how this taxonomy assists

in understanding litigation’s current regulatory role and future potential.

A. Diagonal Regulation and Environmental Federalism

Legal scholars have been trying to capture the multiscalar dimensions of climate change

and envision creative regulatory solutions through applying a mix of legal and interdisciplinary

theories to it. The U.S. environmental federalism discourse, in particular, which has significant

88 See Notice of Upcoming Joint Rulemaking to Establish Vehicle GHG Emissions and CAFE Standards, 74 Fed. Reg. 24,007 (2009); see also Remarks by the President on National Fuel Efficiency Standards, 19 May 2009, Daily

Comp. Pres. Doc., 2009 DCPD No. 00377; Automakers Support President in Development of National Program

for Autos, Alliance of Automobile Manufacturers, 18 May 2009, available at

<www.autoalliance.org/index.cfm?objectid=55B4BAFF-1D09-317F-BBB0DA0B7783C956> (viewed 8 July

2009) [hereinafter, National Program for Autos].

33

parallels with the subsidiarity discourse in Europe,89

has evolved from debates over which level

of government is most appropriate to what Kirsten Engel has described as “dynamic”

federalism.90

In tandem with the evolving new governance literature,91

this dynamic federalism

literature—using ever more creative titles such as polyphonic federalism,92

iterative federalism,93

and uncooperative federalism94

—has attempted to capture the complex interaction among levels

of government and both public and private actors to address complex problems like climate

change. A subgroup of these U.S. scholars, such as J.B. Ruhl and Jim Salzman,95

Judith Resnik,

Joshua Civin, and Joseph Frueh,96

and Janet Levit and I,97

have drawn from different

combinations of interdisciplinary network, adaptive management, and international legal theory

in an effort to engage the nuances of these interactions and their regulatory role.

89 For a comparison of U.S. and E.U. climate change approaches, see Jutta Brunee, Europe, the United States, and

the Global Climate Regime: All Together Now?, 24 J. Land Use & Envtl. L. 1 (2008).

90 See Engel, Harnessing the Benefits of Dynamic Federalism in Environmental Law, supra note 81.

91 J.B. Ruhl and James Salzman are bringing new governance approaches together with dynamic federalism and

transgovernmental network theory in an environmental context. See J.B. Ruhl & James Salzman, Managing

Massive Problems in the Administrative State: Strategies for Whittling Away, 98 Cal. L. Rev. 1 (forthcoming

2010) (draft manuscript on file with the author). For general analyses of new governance scholarship, see Law and

New Governance in the EU and US (Gráinne de Búrca & Joanne Scott eds., 2006); Bradley C. Karkkainen, “New

Governance” in Legal Thought and in the World: Some Splitting as Antidote to Overzealous Lumping, 89 Minn. L. Rev. 471 (2004); Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in

Contemporary Legal Thought, 89 Minn. L. Rev. 342 (2004); Orly Lobel, Setting the Agenda for New Governance

Research, 89 Minn. L. Rev. 498 (2004).

92 Robert A. Schapiro, Polyphonic Federalism: Toward the Protection of Fundamental Rights (2009).

93 See Ann E. Carlson, Iterative Federalism and Climate Change, 103 Nw. U. L. Rev. 1097 (2009).

94 Jessica Bulman-Pozen & Heather K. Gerken, Uncooperative Federalism, 118 Yale L.J. 1256 (2009).

95 See Ruhl & Salzman, Managing Massive Problems in the Administrative State, supra note 91.

96 See Judith Resnik, Joshua Civin & Joseph Frueh, Ratifying Kyoto at the Local Level: Sovereigntism, Federalism,

and Translocal Organizations of Government Actors (TOGAS), 50 Ariz. L. Rev. 709 (2008).

97 See Osofsky & Levit, supra note 75.

34

My work on diagonal and multi-dimensional regulatory strategies, upon which this article

builds, aims to contribute to this discourse both practically and conceptually. With respect to

policy, the taxonomy helps to break down the elements of cross-cutting regulatory approaches,

which allows for consideration how they can be operationalized more effectively. More

conceptually, it brings together the discipline of geography with the environmental federalism

literature to argue that the taxonomy can be a lens through which federalism itself can be viewed;

the four dimensions are not only aspects of policy, but crucial elements of the dynamic

environmental federalism debate.98

This Section focuses on a particular piece of that larger

scholarly project; it traces how the diagonal character of Massachusetts v. EPA and the state

waiver dispute vary over time, and in so doing, maps these cases’ interaction with motor vehicle

greenhouse gas emissions regulation. Specifically, it considers how these cases impact the

dominant scale, axis, direction of hierarchy, and cooperativeness of regulatory efforts.

1. Predominantly Large-Scale or Small-Scale Diagonal Regulation

Existing diagonal regulatory approaches to motor vehicle greenhouse gas emissions tend

to skew towards large-scale regulatory arrangements dominated by international or national

actors, or small-scale ones that focus on subnational actors. I have elsewhere described this

pattern in more depth with a focus on the Obama administration’s efforts, which primarily

include mandates and financial incentives. For the most part, programs aimed at what cars we

drive tend to be large-scale, and those aimed at how we drive them tend to be smaller scale.99

98 See Osofsky, Is Climate Change “International”?, supra note 22; Osofsky, Diagonal Federalism and Climate

Change, supra note 82; Osofsky, Multi-Dimensional Environmental Federalism, supra note 82.

99 See Osofsky, Diagonal Federalism and Climate Change, supra note 82.

35

Litigation can very much impact how those skews evolve over time, as these two cases

exemplify. For instance, the Obama administration’s “National Program” to address new

vehicles’ fuel economy and greenhouse gas emissions is predominantly federal, although it aims

to harmonize with California standards over time at least in part as a result of California’s waiver

request and the conflict over it.100

The coalitions of U.S. states and cities working on reducing

vehicle emissions are predominantly small-scale, though they aim to influence national policy

and did so through the Supreme Court Massachusetts v. EPA and its current implementation

under the Obama administration.101

Litigation in this context has ensured that the smaller-scale

governmental actors, as well as a range of non-governmental ones, are influencing the national-

level mandates—in these two cases, mostly in a pro-regulatory direction.

2. Predominantly Horizontal or Vertical Diagonal Regulation

Diagonal regulatory approaches also vary in the extent to which they focus on

interconnecting key actors at a particular regulatory level or focus on creating interactions across

levels. Predominantly horizontal efforts tend to arise out of a group of entities operating at a

particular level that form a larger-scale coalition, such as the cities, states, and territory—

together with NGOs—pushing for federal regulation in the Massachusetts v. EPA case, or the

states allying with California’s efforts at more stringent standards.102

Predominantly vertical

regulation in the U.S. context generally arises from the arrangements among federal, state, and

local levels that our federalist system of government creates, arrangements that are being re-

100 See supra notes 86–88 and accompanying text. 101 See supra notes 83–85 and accompanying text.

102 See supra notes 83–88 and accompanying text.

36

explored in the auto emissions standards context, in direct response to the two conflicts, as the

Obama administration attempts to build new national standards and harmonize them with leader

states.103

As with the previous dimension, the extent to which efforts skew towards the horizontal

or vertical axis are influenced by litigation. In Massachusetts v. EPA, the court battles involved

states, cities, and NGOs on the pro-regulatory side, and the federal government, states, and

corporate coalitions on the anti-regulatory side. These groupings added a more horizontal

dimension to a battle over a vertical mandate.104

Similarly, the state waiver dispute relied upon

provisions in the Clean Air Act that allow horizontal coalitions to form and push a vertical

mandate system in a pro-regulatory direction. The waiver denial under the Bush administration

resulted in litigation by these largely horizontal coalitions of states, and its grant under the

Obama administration has helped that predominantly horizontal grouping of states influence

predominantly vertical federal standards.

3. Predominantly Top-Down or Bottom-Up Diagonal Regulation

Because any diagonal scheme will include different levels of government, questions of

hierarchy arise, and this dimension focuses on the vertical regulatory direction (from the top or

from the bottom). Both disputes and their resolution contain a mix of top-down and bottom-up

strategies over time. The petitioners in Massachusetts v. EPA aimed to force the federal

103 See supra notes 86–88 and accompanying text.

104

See supra notes 83–85 and accompanying text. For a complete list of parties in Massachusetts v. EPA, see

Massachusetts, et al v. EPA (No. 05-1120): A Guide to the Supreme Court’s Case on Global Warming,

International Center for Technology Assessment (ICTA) (2006), available at

<www.icta.org/doc/SupCtMediaGuide%2011-27-06.pdf> (viewed 24 December 2009).

37

government, specifically the EPA, to act under authority granted to it by the CAA. It was a

bottom-up effort, opposed not only by the federal government but some state governments, to

force top-down federal action that may ultimately have cooperative elements in its

implementation.105

In contrast, the state waiver dispute was about whether California and other states could

exceed national standards. It was a bottom-up effort to allow smaller-scale regulatory behavior

under a top-down, federal-level preemption/waiver system, which has in turn pressured the

federal government to change its larger-scale, top-down regulatory approach and resulted in a

cooperative scheme.106

The litigation in both instances provided a mechanism for more bottom-

up influences to enter a top-down regulatory process in an evolving fashion depending on the

state of the regulations and disputes over them.

4. Predominantly Cooperative or Conflictual Diagonal Regulation

Finally, diagonal regulatory strategies are not necessarily cooperative, and the balance of

cooperation and conflict may vary over time. The two disputes that that this article focuses on

highlight these dynamics, as conflict under the Bush administration has evolved into cooperative

implementation under the Obama administration, with some residual industry challenges.107

These examples reinforce the need to move from a purely cooperative federalist model for

climate change regulation to one that incorporates dissent and challenge into the regulatory

scheme.

105 See supra notes 83–85 and accompanying text. 106 See supra notes 86–88 and accompanying text.

107 See supra notes 83–88 and accompanying text.

38

Cooperative federalism’s greatest advantage for climate change regulation is its ability to

create coordinated, agreed-upon, multiscalar action.108

The various cooperative models,

however, face two major limitations, which are analyzed in recent work by Robert Shapiro on

polyphonic federalism, Ann Carlson on iterative federalism, and Jessica Bulman-Pozen and

Heather K. Gerken on noncooperative federalism address. First, conflict exists. Cooperative

schemes may struggle at times to address difference adequately and include all relevant actors.

Second, and at least as importantly, conflict has value. Regulatory schemes that provide

opportunity for dissent, such as through litigation, can potentially incorporate divergent views

more effectively, as well as make sure that pressure remains on policymakers to think through

tough issues.109

These two cases demonstrate the ways in which litigation can serve as a lever in shifts

between cooperation and conflict over time. In both cases, litigation became a vehicle for

addressing conflict, and the resolution of the lawsuits served as a means to greater cooperation.

These conflicts may not always result in more rigorous regulation. A significant portion of the

108 For discussion of cooperative federalism and climate change, see William Andreen et al., Cooperative

Federalism and Climate Change: Why Federal, State, and Local Governments Must Continue to Partner, Center

for Progressive Reform (2008), available at

<http://progressiveregulation.org/articles/Cooperative_Federalism_and_Climate_Change.pdf>; see also Barry G.

Rabe, Statehouse and Greenhouse: The Emerging Politics of American Climate Change Policy 1-37 (2004); David E. Adelman & Kirsten H. Engel, Reorienting State Climate Change Policies to Induce Technological Change, 50

Ariz. L. Rev. 835 (2008); Ann E. Carlson, Federalism, Preemption, and Greenhouse Gas Emissions, 37 U.C. Davis

L. Rev. 281, at 290-92 (2003); Holly Doremus & W. Michael Hanemann, Of Babies and Bathwater: Why the Clean

Air Act’s Cooperative Federalism Framework is Useful for Addressing Global Warming, 50 Ariz. L. Rev. 799

(2008); Daniel A. Farber, Climate Change, Federalism, and the Constitution, 50 Ariz. L. Rev. 879 (2008); Lisa

Heinzerling, Climate, Preemption, and the Executive Branches, 50 Ariz. L. Rev. 925 (2008); David R. Hodas, State

Law Responses to Global Warming: Is It Constitutional to Think Globally and Act Locally?, 21 Pace Envtl. L. Rev.

53, at 53-65 (2003); Alice Kaswan, A Cooperative Federalism Proposal for Climate Legislation: The Value of State

Autonomy in the Federalism System, 85 Denv. U. L. Rev. 791 (2008); Alice Kaswan, The Domestic Approach to

Global Climate Change: What Role for Federal, State, and Litigation Initiatives?, 42 U.S.F. L. Rev. 39 (2008);

Douglas A. Kysar & Bernadette A. Meyler, Like a Nation State, 55 UCLA L. Rev. 1621 (2008); Barry G. Rabe,

North American Federalism and Climate Change Policy: American State and Canadian Provincial Policy

Development, 14 Widener L.J. 121, at 128-51 (2004).

109 See Schapiro, supra note 92; Bulman-Pozen & Gerken, supra note 94; Carlson, Iterative Federalism and Climate

Change, supra note 93.

39

lawsuits over climate change, including some of those in these two instances, challenge attempts

to regulate more stringently.110

But even with respect to anti-regulatory suits, the litigation

provides an important airing of disagreement and puts pressure on not only policymakers, but

also those in the advocacy community pushing for greater regulation, to address the concerns

raised. For example, the resolution of the state waiver dispute, which included several lawsuits,

has resulted in some members of the automobile industry coming on board with the resulting

plans.111

With or without lawsuits, serious disagreements exist; courts can provide an important

forum where conflict can be addressed to allow the next steps in policymaking.

This addressing of conflict, whether over substantive issues or over the appropriate level

of government, is critical in the current U.S. and transnational regulatory environment. The

National Plan and other regulation which has emerged from these two disputes represent a major

step forward in U.S. emissions reduction and put pressure on the U.S. Congress to act. At least

as important, though, the cooperative scheme which has emerged from them includes key federal

governmental, state governmental, and corporate actors. This buy-in across levels of

government and from key regulated actors emerged from their engagement in these conflicts and

increases the possibility of regulatory effectiveness. Moreover, as discussed in more depth in the

section which follows, even the cases which do not represent such a clear example of regulatory

progress form part of a transnational regulatory dialogue through helping courts and

policymakers grapple with the complex intersection of law, scale, scientific uncertainty, and

climate change.

110 See Gerrard, supra note 6.

111 See National Program for Autos, supra note 88.

40

B. Implications for Transnational Climate Change Regulation

Litigation, whether small-scale efforts to force government to block new power plants, or

large-scale ones aimed at accessing international treaty regimes, forces judges and policymakers

to confront key questions about transnational regulation of climate change. Namely, in

considering these cases, judges must address issues that go beyond the specific doctrinal nuances

of the particular dispute, such as: (1) How certain does science need to be in order for lawmakers

and judges to act? (2) Who should the decisionmakers and the implementers be? (3) To what

extent should this problem which interacts with our entire way of life be addressed through

regulatory structures that we don’t envision as “environmental”?

The diagonal quality of these cases, and the way in which they shift skews within each of

the four dimensions, influence the answers to these questions. Scientific uncertainty regarding

climate change is generally greater at smaller spatial and temporal scales, and so in cases like

Massachusetts v. EPA or the California waiver dispute, courts confront the issue of whether data

on state and local emissions contributions and impacts is adequate. By finding that these impacts

were sufficient in Massachusetts v. EPA, the U.S. Supreme Court provided the basis for a more

precautionary approach to the dangers of even smaller-scale emissions that grounds the larger-

scale, federal level implementation.112

Although the political resolution of the state waiver

dispute precluded judicial action on the smaller scale emissions questions, the recent U.S.

Second and Fifth Circuit public nuisance decisions—even with the uncertainties created by the

Fifth Circuit rehearing en banc and potential circuit split—indicate that significant corporate

emitters may have enough of an impact for these cases to survive standing hurdles. These

112 Massachusetts v. EPA, supra note 1.

41

opinions reinforce that even particular emitters in specific places have enough of an impact to

make regulation matter.113

These cases, in addressing the second question, similarly provide a way of mediating the

top-down and bottom-up pushes for and against regulation. In so doing, they serve as an

important part of the transnational regulatory dialogue over climate change not only through

their resolution of these disputes but also for providing a public forum for their articulation.

Significant disagreement exists over whether particular cities, states, countries, and international

bodies should take specific steps to address climate change. As exemplified in the two U.S.

Clean Air cases this article analyzes, litigation—at least in a domestic context—can provide a

mechanism for small- and large-scale governmental and nongovernmental actors who feel

strongly about particular regulatory measures regarding motor vehicles to argue and reach

resolution.114

This pattern is repeated in many variations in the range of cases in different types

of forums around the world, and in the process, helps the transnational community to resolve

particular regulatory disputes and engage broader conceptual agreement and disagreement.

Although litigation may not be able to resolve the kind of impasse nation-states reached at

Copenhagen, its role in forwarding dialogue may help to create progress that ultimately could

translate into nation-states taking internal steps that make international agreement more possible.

Finally, the wide range of types of substantive legal claims force courts and interested

governmental and nongovernmental actors to confront how deeply climate change is imbedded

in the transnational socio-legal framework. In the two examples this article uses, the disputes

center around provisions of a broad federal law regulating air pollution, which do not explicitly

113 See Comer v. Murphy Oil, supra note 4; Connecticut v. AEP, supra note 4.

114 See supra Section IV.A.

42

address climate change. In fact, those attempting to block EPA regulation of motor vehicle

greenhouse gas emissions argued that the Clean Air Act did not address climate change explicitly

enough for its pollution provisions to apply to this problem. By agreeing with the bottom-up

claims from states, cities, and NGOs that this statute could apply to climate change, the U.S.

Supreme Court reinforced the pervasiveness of the problem and need for solutions.115

As tribunals around the world continue to grapple with whether and how a wide range of

provisions—from species and world heritage protections to those concerning human rights and

torts—should apply to the problem of climate change, the cases’ diagonal quality make these

disputes far more pervasive. For example, at a smaller scale, I have taught classes at both the

University of Oregon and Washington and Lee University in which we have worked with

nongovernmental organizations on the extent to which their environmental strategies could and

should include climate change arguments, a phenomenon which is taking place in both law firms

and NGOs around the world as this litigation gains traction. This need to engage climate change

in areas of practice where it has not previously been an issue helps put pressure on a wide range

of actors at different levels of government to change their behavior and interact with each other.

From a transnational regulatory perspective, then, the direct and indirect impacts of this

litigation and the complex questions it engages make a difference in the prospects for effective

efforts to address climate change. The litigation in the United States or elsewhere cannot, on its

own, resolve very real differences among countries that currently hinder forward progress at an

international level. However, by engaging a wider range of key actors than those negotiations

and by providing a public forum for airing and often resolving their disagreements, the litigation

changes interacting regulatory options at multiple levels of government and puts pressure on the

legislative and executive branches and the major corporate emitters to craft their own solutions.

115 Massachusetts v. EPA, supra note 1.

43

V. CONCLUDING REFLECTIONS

The current regulatory environment and its limitations reinforce the importance of the

socio-legal role that climate change litigation plays. The adjudication provides a mechanism for

dialogue and awareness, in addition to a more formal forcing or limiting role, in a regulatory

environment in which policies have not caught up to the problem.116

At least as important, it

creates the above-described diagonal interactions through which different levels and branches of

regulators interact and grapple with what is needed. These cases help to bring attention to

regulatory options and debates, and push policymakers to address more nuances of the problem

in the process.117

Thoughtful people may continue to disagree as to the normative implications of

litigation’s role. However, until executive and legislative branches are able to construct effective

multiscalar regulatory mechanisms – which poses a difficult challenge even for politicians

committed to addressing the problem – litigation’s formal and informal interactions likely will

continue to play an essential role in the overall regulatory framework. And as discussed

previously, even with a more effective policy regime, these cases may continue to provide an

important mechanism for expressing grievances and keeping pressure on decisionmakers.118

The

combination of discontent with existing efforts and a wide range of legal mechanisms applicable

to this cross-cutting problem make courtrooms and other quasi-judicial fora important loci for

116 See Hunter, The Implications of Climate Change Litigation: Litigation for International Law-Making, supra note

25. 117 See Osofsky, Is Climate Change “International”?, supra note 22.

118 See supra Part III.

44

the continuing dialogue among disparate actors across levels of governance about how to address

climate change most appropriately.