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to the UNFCCC (Nov. 2006), available at http://whc.unesco.org/en/activities/396/.
See, e.g., Pew Center on Global Climate Change, COP 11 and COP/MOP 1 Montreal, available
42

at http://www.pewclimate.org/what_s_being_done/in_the_world/cop11/ (last visited Apr. 19, 2007);
David B. Hunter
366


actions thus emboldened negotiators to set out a future negotiation schedule, more
con¬dent that the United States would eventually come back to the table.
Harder to judge is the impact climate litigation strategies will have on the climate
change regime if some of these cases prove successful. On one hand, taking cli-
mate change issues to other forums may seem to undermine the monopoly the
climate secretariat might like to have on the issue. On the other hand, by focusing
other institutions on climate impacts, the actions may help petitioners to be more
active and productive players in the climate negotiations and create mechanisms
for the integration of the climate regime with other institutions (e.g., human rights
tribunals, ¬nancial institutions, or other treaty regimes). By forcing other institutions
to take climate into account, climate litigation will create opportunities for policy
coherence across international governance, even if through ad hoc cases. Claims
to the World Bank Inspection Panel or the International Finance Corporation™s
Compliance Advisor/Ombudsman, for example, could seek to force those ¬nan-
cial institutions to implement UNFCCC-approved methodologies for measuring,
evaluating, or reducing greenhouse gas emissions.43
The focus on remedies that is inherent to climate litigation may in¬‚uence future
debates at the UNFCCC over adaptation. Certainly, the portrayal of speci¬c harm
to victims today, as opposed to general impacts tomorrow, is likely to force climate
negotiators and the UNFCCC secretariat to focus on adaptation and compensation
sooner than it otherwise would. This could increase funding available under the
regime to respond to the needs of victims. In the most extreme scenarios, the threat of
civil liability could conceivably lead industry and others to promote a liability regime
under the UNFCCC that would both clarify the rules of liability and essentially cap
private-sector liability “ much as has been done with environmental damage from
nuclear facilities44 and oil spills.45


Andrew Buncombe & Geoffrey Lean, Climate campaigners claim greatest ever success at Montreal,
Independent, Dec. 11, 2005, available at http://environment.independent.co.uk/article332384.ece;
Planktos Inc., The 2005 Montreal COP/MOP in Review, Dec. 15, 2005, available at http://www.
planktos.com/Newsroom/The2005MontrealCOPMOPinReview.html; see also Int™l Inst. for Sus-
tainable Dev., Special Report on Selected Side Events at COP 11 & Kyoto Protocol
COP/MOP 1: Events Convened on Monday, 5 Dec. 2005, available at http://www.iisd.ca/climate/
cop11/enbots/enbots1707e.html (last visited on Apr. 23, 2007) (summarizing a panel on subnational
initiatives including a presentation by the N.Y. State Attorney General™s of¬ce regarding recent climate
change cases brought in the United States).
See Jennifer Gleason & David B. Hunter, Bringing Climate Change Claims to the Accountability
43

Mechanisms of the International Financial Institutions, this volume.
Paris Convention on Third Party Liability in the Field of Nuclear Energy, July 29, 1960, 956 U.N.T.S.
44

251; Int™l Atomic Energy Agency [IAEA], Vienna Convention on Civil Liability for Nuclear Damage,
IAEA Doc. INFCIRC/500 (May 21, 1963); Brussels Convention Relating to Civil Liability in the Field
of Maritime Carriage of Nuclear Material (Dec. 17, 1971).
International Convention on Civil Liability for Oil Pollution, Nov. 29, 1969, 973 U.N.T.S. 3, 9 I.L.M.
45

45; Protocol of 1992 to the International Convention on the Establishment of an International Fund for
Compensation for Oil Pollution Damage, 1971, Nov. 27, 1992, 1953 U.N.T.S. 373 (1996); Convention
on Civil Liability for Oil Pollution Damage resulting from Exploration for and Exploitation of Seabed
Mineral Resources, Nov. 1977, 16 I.L.M. 1450.
The Implications of Climate Change Litigation 367


The relationship between remedies in climate litigation and in the climate regime
goes both ways. Steps identi¬ed and supported by the UNFCCC may help shape
remedies in climate litigation, which could remove a major obstacle for successful
climate advocacy. Some analysts, for example, have already proposed that remedies
in climate litigation should include the requirement to buy carbon offsets endorsed
in the climate regime.46 The climate regime may also be the appropriate forum for a
broader remedial response for those who are victims of climate change. If the number
of climate refugees increases, for example from sea level rise, a more comprehensive
U.N. remedial response may be necessary and would likely come under the auspices
of the UNFCCC. Viewed in this light, the climate change litigation strategies are
clearly supportive of and a potential catalyst for a stronger and more comprehensive
UNFCCC regime.


3. IMPLICATIONS FOR INTERNATIONAL LAW GENERALLY

3.1. Promoting the Progressive Development of International Law
Whether international law will evolve to address climate change impacts effectively
is still an open question, but just the act of ¬ling climate-based petitions or com-
plaints advances innovative arguments and pushes international law in new direc-
tions. The Inuit Petition to the Inter-American Commission on Human Rights, for
example, requires the interpretation and application of rights to the use and enjoy-
ment of traditional lands, to the bene¬ts of culture, to property, to the preservation of
health, life, physical integrity, security, and a means of subsistence, and to residence,
movement, and inviolability of the home.47 The petition invites the Commission
to continue its recent jurisprudence extending the Inter-American system™s human
rights protections to the intersection of human rights and the environment.48 The
Inuit petition also presents important and well-supported arguments for the progres-
sive development of international environmental law, including speci¬c reference
to U.S. obligations under the UNFCCC and the Kyoto Protocol and to emerging
principles of law, including the principle not to cause transboundary environmental
harm, the principle of sustainable development, and the principle of precaution.49
Even if the Commission (as now seems likely) will not pursue the petition directly,
both the petition and the ensuing dialogue at the Commission will further the

See Engel, supra note 3; see also Mandatory CO2 Credit Purchases Eyed as Remedy in Climate
46

Change Suits, Inside EPA.com (Nov. 24, 2006), available at http://www.law.arizona.edu/news/Press/
Engel112706“2.pdf (quoting proposal from Kirsten Engel).
Inuit Petition, supra note 6, at 74“95; see also Osofsky, The Inuit Petition, supra note 3 (discussing the
47

human rights and environment linkages in the Inuit claim).
See, e.g., Case of the Mayagna (Sumo) Indigenous Community of Awas Tingni, Judgment, 2001 Inter-
48

Am. Ct. H.R. (ser. C) No. 79 (Aug. 31, 2001); see also Additional Protocol to the American Convention
on Human Rights in the Area of Economic, Social and Cultural Rights, art. 11(1), Nov. 14, 1988, 28
I.L.M. 161 (1989).
Inuit Petition, supra note 6, at 97“101.
49
David B. Hunter
368


potential future interpretation of the links between international environmental and
human rights law.50
These initial efforts to use new areas of the law, such as the law relating to
human rights or cultural heritage, may spawn other innovative efforts to build
policy coherence between different ¬elds of international law and climate change.
On April 17, 2007, for example, the U.N. Security Council held its ¬rst brie¬ng
on the security implications of climate change. That brought signi¬cant attention
to the important linkages between climate change and national security.51 The
links between climate change and other ¬elds of international law have triggered
substantial scholarship as well as potentially innovative litigation strategies, including
links between climate change and international trade law,52 the law of the sea and
¬sheries conservation,53 international ¬nance,54 coporate social responsibility,55 and
the international protection of wetlands.56 Taken collectively, these efforts not only
explore new aspects of their respective ¬elds but contribute substantially to building
policy and legal coherence between the ¬elds of international law “ an outcome that
is important for sustainable development generally and for international responses
to climate change more speci¬cally.


3.2. Strengthening International Institutions
One of the most important outcomes of the current climate litigation strategies is
that they may strengthen certain international institutions simply by using them. The

The Commission held a broader hearing on the connection between climate change and human
50

rights. See Letter from Ariel E. Dulitzky, Assistant Executive Sec™y, Organization of American States,
to Sheila Watt-Cloutier, Chair, Inuit Circumpolar Conference, et al. (Feb. 1, 2007) (on ¬le with
author).
See, e.g., U.N. Council Hits Impasse over Debate on Warming, N.Y. Times, Apr. 18, 2007, available at
51

http://www.nytimes.com/2007/04/18/world/18nations.html; Andrew C. Revkin & Timothy Williams,
Global Warming Called Security Threat, N.Y. Times, Apr. 15, 2007, at 25, col. 4.
See, e.g., Andrew L. Strauss, The Legal Option: Suing the United States in International Forums for
52

Global Warming Emissions, 33 Envtl. L. Rep. (Envtl. L. Inst.) 10185 (2003); Andrew L. Strauss, The
Case for Utilizing the World Trade Organization as a Forum for Global Environmental Regulation,
3 Widener L. Symp. J. 309 (1998).
See William C. G. Burns, Potential Causes of Action for Climate Change Impacts under the United
53

Nations Fish Stocks Agreement, Sustainable Dev. L. & Pol™y 34“38 (Winter 2007); William C. G.
Burns, Potential Causes of Action for Climate Change Damages in International Fora: The Law of the
Sea Convention, 1(2) Int™l J. Sustainable Dev. L. & Pol™y 27“51 (2006).
See Gleason & Hunter, supra note 43.
54

See Cornelia Heydenreich, GermanWatch Raises Complaint against Volkswagen: Climate Damaging
55

Business Strategy Violates OECD Guidelines for Multinational Enterprises, GermanWatch Brie¬ng
Paper, May 2007, available at http://www.germanwatch.org/corp/vw-hg07e.pdf; Beschwerde gegen die
Volkswagen AG unter den OECD-Leitsatzen fur Multinationale Unternehmen, May 7, 2007, avail-
able at http://www.germanwatch.org/corp/vw-besch.pdf (petition ¬led in Germany challenging on
climate change grounds Volkswagen™s operations as violating the OECD guidelines on multinational
enterprises).
Delmar Blasco, Secretary General of the Convention on Wetlands, Statement to the 6th Conference
56

of the Parties to the U.N. Framework Convention on Climate Change, Den Haag, The Netherlands
(Nov. 20, 2000).
The Implications of Climate Change Litigation 369


question of whether or how existing international institutions can address what may
be the most important environmental question of our time speaks to the relevance
of the institutions themselves. If an institution with an environmental mandate, or
at least some relationship to sustainable development, cannot be called into service
to address an issue of the magnitude of climate change, what is its relevance more
generally?
Appealing to the World Heritage Convention, for example, shines the spotlight
on that Convention and enables UNESCO and the World Heritage Committee
to raise the importance of protecting World Heritage sites from climate threats.
Such petitions force the governments to address the impacts of climate change on
cultural and natural heritage. They also provide an opportunity for the Committee
to demonstrate its relevance and that of the World Heritage Convention to modern
threats, like climate change, that arise indirectly from the processes of globalization
and industrialization as opposed to direct, deliberate choices by individual host
governments or corporations. Even if the ultimate decision of the Commission
(to reject the petitions and adopt a more general strategy for addressing climate
change threats to cultural heritage) was likely a politically motivated compromise,
it may nonetheless provide the Committee with a long-term platform to highlight
links between climate change and cultural heritage. By showing some well-reasoned
restraint in expanding its scope to embrace climate change, it may strengthen the
long-term credibility and trust the Committee has with member governments, while
still garnering support from the petitioners and civil society organizations.57
The same can be said for the petition to the Inter-American Commission on
Human Rights. The petition helps further the Commission™s reach to situations
other than traditional civil and political rights. Although the Commission has ini-
tially rejected the petition for providing insuf¬cient information to demonstrate a
violation of the American Convention,58 the petition did prompt the Commission
to hold, and invite the petitioners to, an unprecedented hearing on the “relationship
between human rights and global warming.”59 Like the World Heritage Commit-
tee™s approach described previously, this response appears to be a compromise that
keeps the door open for the Commission to continue to explore climate change in
the context of the InterAmerican commitments to human rights. The Commission™s
reach is thus extended to embrace climate change, albeit not yet through a formal,
expansive interpretation of the underlying legal instruments.
To some extent these cross-over petitions “ that is, those that make international
institutions address an issue (climate change) that is normally outside of their respec-
tive mandates “ position the institutions to be more relevant for the complexities

See, e.g., UNESCO Adopts Climate Change Strategy for World Heritage Sites, Env™t News Serv.,
57

July 11, 2006 (quoting several petitioners supportive of the Committee).
See Letter from Ariel E. Dulitzky, Assistant Executive Sec™y, Organization of American States, to
58

Paul Crowley, Legal Rep. (Nov. 16, 2006), available at http://graphics8.nytimes.com/packages/pdf/
science/16commissionletter.pdf.
See Letter from Ariel E. Dulitzky, supra note 50.
59
David B. Hunter
370


of sustainable development more generally. Thus, invitations to address the inter-
section of human rights and climate at the Inter-American Commission, trade and
climate at the World Trade Organization, or ¬nance and climate in the case of
the international ¬nancial institution accountability mechanisms, are invitations for
these institutions to show that they can address the complex and integrated aspects
of contemporary sustainable development issues.

4. STRENGTHENING THE DEMOCRATIZATION OF GLOBAL
ENVIRONMENTAL GOVERNANCE

Climate litigation at all levels is democratizing global environmental law and poli-
cymaking. Although the scale, scope, and methods of participation by civil society
in the formal climate negotiations have been substantial, at the end of the day every-
thing from the agenda to the ¬nal outcome of international treaty negotiations “
and the climate change regime is no exception “ is appropriately monopolized by
governments. Civil society can observe, propose, pressure, prod, and even parody,
but ultimately its role in international negotiations is limited.
Not so in terms of litigation. Climate change litigation empowers civil society to
shape the agenda in ways not allowed in formal negotiations. It was civil society, for
example, that put climate change on the agenda of the World Heritage Committee
and the Inter-American Human Rights Commission. Approval to ¬le the petitions
was not solicited nor needed, from either the governments or the relevant inter-
national institutions. Civil society™s exercise of this agenda-creating authority con-
tributes to the ongoing changes seen in who participates and in¬‚uences international
policy. Climate litigation at the national level also helps to democratize climate pol-
icy. Clearly, this is the case in the United States, where subnational government units
(e.g., the states of Massachusetts, Connecticut, and California, as well as municipal-
ities, such as, Oakland, California, and Boulder, Colorado), frustrated with the lack
of federal action under the Bush administration, have taken strong action on climate
change “ thus expressing their keen interest in participating and shaping climate
policy.60 Similarly, Australian civil society claimants have put climate change on
the agenda of otherwise reluctant government agencies.61 Although legal actions,
these were also political statements intended to pressure the respective governments
on climate change and to show the world that at the subnational level, at least,
many in the United States and Australia support stronger actions on climate change.

5. TRANSNATIONAL CLIMATE ADVOCACY NETWORKS

Climate litigation efforts are also changing the nature and scope of transnational
advocacy networks focused on climate change. The existence of such networks is now

See Connecticut v. AEP Complaint, supra note 4 (plaintiffs include nine states); Friends of the
60

Earth v. Watson, 2005 WL 2035596 (2005) (plaintiffs include Boulder, Colorado, Arcata, California,
and Oakland, California); see also Hari M. Osofsky, Climate Change Litigation as Pluralist Legal
Dialogue?, 26 Stanford Envtl. L.J. 182 and 43 Stanford J. Int™l L. (2007).
Australian Conservation Foundation, (2004) VCAT 2029.
61
The Implications of Climate Change Litigation 371


widely recognized as having signi¬cant in¬‚uence on environmental governance.62
Climate change policy, generally, bene¬ts from what is among the most well-
networked and cooperative of all transnational environmental advocacy movements.
Climate change has been a global policymaking priority for more than ¬fteen years
now, and the depth, sophistication, and trust that has built up in transnational climate
advocacy networks is unprecedented in international environmental governance.
Climate negotiations are host to literally thousands of civil society representatives.
The Climate Action Network (CAN), a major network for organizing and coordi-
nating civil society input into the climate negotiations boasts 365 nongovernmental
organizations as members and seven regional of¬ces around the world;63 it is well
organized and very visible at the negotiations.
For the most part, CAN and its af¬liated organizations and networks have focused
their work on in¬‚uencing the international negotiations, but the advent of the
climate litigation strategies outlined in this book reveal a subtle, but important,
shift in the strategies and scope of the climate advocacy networks. This shift entails a
greater focus on advocating for speci¬c remedies for particular harms, an extension to
multiple forums beyond the UNFCCC Conferences of the Parties, and the inclusion
of new advocacy organizations with a clearer focus on legal strategies. The climate
litigation network is now its own transnational network, albeit arguably a subset of
the broader climate networks exempli¬ed by CAN. An advocacy statement calling
for the national and international enforcement of climate-related laws, for example,
was explicitly endorsed by nearly seventy-¬ve advocates from twenty-six countries;
this re¬‚ects both global support and cooperation in the strategy of bringing climate
litigation claims.64
Although it may be too soon to predict, the cooperation in sharing information,
strategies, and expertise that is evident in the emerging climate litigation strate-
gies “ seen perhaps most readily in the coordinated efforts to ¬le claims under the
World Heritage Convention “ may herald a new era of transnational cooperation
that is designed less for in¬‚uencing broad international policy and more for using
domestic and national forums to bring coordinated impact litigation. This collabo-
rative advocacy will both strengthen the individual cases and serve to highlight the
need for a global response. Such a coordinated and integrated litigation strategy,
which is emerging in climate change, could also appear in the future with other
global environmental issues such as ozone depletion, mercury pollution, or ¬sheries
losses.


CONCLUSION

It is hard to judge how much, if at all, the pressure from climate change litigation will
contribute to broader changes in climate policy, but it certainly is in¬‚uencing the

See, e.g., Margaret Keck & Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks
62

in International Politics (1998).
See http://www.climatenetwork.org.
63

See http://www.climatelaw.org.
64
David B. Hunter
372


debate. Many of the climate advocates that have brought actions thus far have been
motivated substantially (if not primarily) by the goal of raising the pro¬le of climate
change in the hopes of building political will to force more ambitious efforts to
address the issue. Certainly, the state attorneys general who brought climate-related
claims in the United States did so at least partly to pressure for national or statewide
climate policies. In California, for example, the litigation was one piece of a multi-
part effort to move forward on climate change, which has included setting ambitious
emission reduction targets, issuing new fuel ef¬ciency standards, and establishing
the framework for a cap-and-trade program for greenhouse gases.65
Much of the litigation is directly aimed at forcing political action. The Inuit
petition to the Inter-American Commission on Human Rights was aimed at using
the moral and political persuasion of a formal human rights ¬nding to isolate the
United States and build both international and domestic pressure on the government
to take stronger action. Domestic actions in the United States, Germany, Australia,
and other countries have also sought to compel government actions relating to
climate change.66 These actions range from requirements to assess climate impacts at
the project level,67 to incorporate climate change into public ¬nancing decisions,68
or to compel government agencies to regulate carbon dioxide and other greenhouse
gases as injurious pollutants.69 Even when domestic actions fail, they may indirectly
build pressure for legislative and policy action. In the United States, for example,
dismissal of the Connecticut v. AEP complaint on political question grounds put the
spotlight on the political branches of government for a solution.
Climate litigation also ripples through the private sector, receiving the attention of
industries that have potential exposure to climate liability. Plaintiff-side tort lawyers
are talented, resourceful, patient, and well ¬nanced, and many of them believe
climate change either now or in the future will present very real opportunities for
successful litigation.70 In response, corporations and their attorneys now speak openly
about the emerging “litigation risk” from climate change.71 Major U.S. law ¬rms now

See, e.g., Global Warming Solutions Act of 2006, Cal. State Code, Div. 1, Sec. 38500 (2006).
65

See generally Smith & Shearman, supra note 2.
66

Australian Conservation Foundation, (2004) VCAT 2029.
67

Friends of the Earth v. Mosbacher, No. C02“4106 JSW, 2007 WL 962955 (N.D. Cal. Mar. 30, 2007);
68

Friends of the Earth v. Watson, No. C02“4106 JSW, 2005 WL 2035596 (N.D. Cal. Aug. 23, 2005).
Massachusetts v. EPA, 127 S.Ct. 1438, 1438 (2007).
79

See, e.g., David A. Grossman, Warming Up to a Not-So-Radical Idea: Tort-Based Climate Change
70

Litigation, 28 Colum. J. Envtl. L. 1, 9“33 (2003); Matthew F. Pawa & Benjamin A. Krass, Global
Warming as a Public Nuisance: Connecticut v. American Electric Power, 16 Fordham Envtl. L. Rev.
407 (2005).
See, e.g., Vincent S. Oleszkiewicz & Douglas B. Sanders, The Advent of Climate Change Litigation
71

Against Corporate Defendants, 35 Env™t Rep. (BNA) 2365 (Nov. 12, 2004) (“Despite the uncertainties,
it may not be too early to prepare for the possibility of litigation. Next steps for potential defendants
may include a preliminary risk assessment of their exposure to litigation and potential defenses. . . . ”);
Global Warming: Here Come the Lawyers, Bus. Wk. Online, Oct. 30, 2006 (quoting Kevin Healy, a
partner with the law ¬rm of Bryan Cave, that in the wake of recently ¬led lawsuits he now advises
corporate clients that they need to take “reasonable” steps to pare back emissions to reduce their legal
exposure); Kristin Choo, Feeling the Heat: The Growing Debate over Climate Change Takes on Legal
The Implications of Climate Change Litigation 373


routinely market their abilities and successes in climate litigation,72 and litigation
(and the related regulatory) risk are important factors in motivating companies to
take proactive steps to reduce their greenhouse gas emissions and related climate
impacts.73
Thus, the turn to climate litigation and related litigation is reshaping how we think
and respond to the climate change challenge “ regardless of whether individual cases
prevail. But, of course, climate change advocates hope to win. They seek speci¬c
and far-reaching remedies. The Inuit Petition, for example, seeks to have a plan
established and implemented to protect Inuit culture and resources, including,
inter alia, the land, water, snow, ice, and plant and animal species used or occupied
by the Inuit.74 The state attorneys general in Connecticut v. AEP seek to have the
courts impose a cap on greenhouse gas emissions from the ¬ve largest emitting
utilities in the United States.75 The State of California seeks compensation for costs
it is already incurring from climate change.76 These are substantial remedies that
would not only improve the plight of the speci¬c plaintiffs, but would also make
important contributions to the climate policy debate. Obviously, a court™s use of its
injunctive powers could lead to direct emissions reductions in the United States, but
so too would a monetary damage judgment, which would reverberate throughout
the private industry sector, forcing corporations to take proactive steps to reduce
their exposure to climate liability.
Nor are victories in climate litigation a chimera. The recent U.S. Supreme Court
decision in Massachusetts v. EPA, which is forcing the EPA to revisit whether to
regulate carbon under the Clean Air Act, a reassessment embraced by the Obama
administration, is the most well known climate victory. The Supreme Court found
that the risk of rising sea levels alleged by the plaintiffs was suf¬ciently “real” to afford
Massachusetts standing to raise its climate change“based claim.77 Other courts in
the United States and Australia, for example, have extended standing to private


Overtones, A.B.A. J., 29, 30, July 2006 (quoting Professor John Dernbach: “The prospect of liability is a
serious matter for people who understand climate change and take it seriously.”); Christina Ross, Evan
Mills & Sean Hecht, Limiting Liability in the Greenhouse: Insurance Risk-Management Strategies in
the Context of Global Climate Change, 26 Stanford Envtl. L.J. 251, 274 and 43 Stanford J. Int™l
L. (2007).
See, e.g., Sidley Austin, LLP, Climate Change Advisory Nov. 21, 2006, available at http://www
72

.sidley.com/db30/cgi-bin/pubs/ClimateChangeUpdate11.21.06.pdf.
See The Climate Group, Carbon Down, Pro¬ts Up (2d ed., 2005) (compiling an extensive list of
73

voluntary emissions targets accepted by corporations).
Inuit Petition, supra note 3, at 118.
74

Australian Conservation Foundation, (2004) VCAT 2029.
75

Friends of the Earth v. Mosbacher, No. C02“4106 JSW, 2007 WL 962955 (N.D. Cal. Mar. 30, 2007)
76

(rejecting summary judgment motion in a case arguing that the U.S. Overseas Private Insurance
Company must conduct an assessment of the climate impacts of the projects they ¬nance); Friends of
the Earth v. Watson, No. C02“4106 JSW, 2005 WL 2035596 (N.D. Cal. Aug. 23, 2005) (same). These
cases were settled in February 2009. See Joint Motion for Dismissal with Prejudice, Friends of the
Earth v. Spinelli, No. C02“4106 JSW (Feb. 6, 2009).
Massachusetts v. EPA, 127 S.Ct. 1438, 1438, 1455“56 (2007).
77
David B. Hunter
374


parties pressing climate change claims.78 Signi¬cant substantive victories have also
required the assessment of climate impacts in the permitting of greenhouse gas“
emitting activities,79 in decisions to provide ¬nancing,80 and in requirements to
reduce gas ¬‚aring associated with oil re¬neries.81 These victories are likely just
the tip of the litigation iceberg, but win or lose, climate litigation strategies have
harkened in a new era of climate politics.


Owens Corning Corp., 434 F. Supp. 2d 957 (holding that plaintiff environmental organization had
78

standing to challenge a permit application that would have permitted signi¬cant releases of a potent
greenhouse gas (HCFC-142b)); Watson, 2005 WL 2035596 (upholding standing of environmental
organization to bring a case seeking that a U.S. government agency include climate change in their
environmental assessments). But see Korsinsky v. EPA No. 05 Civ. 859 (NRB), 2005 WL 2414744
(S.D.N.Y. Sept. 29, 2005) (rejecting standing of an individual in a climate change tort action).
See, e.g., Australian Conservation Foundation, (2004) VCAT 2029.
79

Mosbacher, 2007 WL 962955 (rejecting summary judgment motion in a case arguing that
80

the U.S. Overseas Private Insurance Company must conduct an assessment of the climate
impacts of the projects it ¬nances); Watson, 2005 WL 2035596; Bund & Germanwatch v.
German Federal Ministry of Econ. & Labour [BMWA], Beschluss, Verwaltungsgericht [VG
Berlin] [Local Administrative Court] Jan. 10, 2006, VG 10 A 215.04 (2006), translated at
http://www.climatelaw.org/media/Germany/de.export.decision.eng.doc.
Climate Justice Programme, Court Orders Nigerian Gas Flaring to Stop (Nov. 14, 2005), available at
81

http://www.snm.nl/pdf/0500_2.7_court_orders_nigarian_¬‚aring_to_stop__background_paper.pdf.
17

Conclusion: Adjudicating Climate Change across Scales

Hari M. Osofsky—




INTRODUCTION

This book explores climate change litigation in its many existing and potential
variations. As this volume was being written, the number of relevant cases and their
impact increased dramatically. 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 concluding chapter grapples with how this evolution impacts the way in
which we should view the role of litigation as part of transnational regulation of
climate change. Although we are still early in this story that Peter Roderick™s fore-
word began,4 some of the impacts of climate change litigation are already clear.
David Hunter™s chapter, The Implications of Climate Change Litigation: Litiga-
tion for International Environmental Law-Making, does an excellent job of analyz-
ing these cases as vehicles for promoting greater public awareness.5 This chapter

— Associate Professor, Washington and Lee University School of Law; B.A., J.D., Yale University. The
author can be reached at osofskyh@wlu.edu. I would like to thank Wil Burns and Stefanie Herrington
for their excellent editorial input, and Joshua, Oz, and the newly arrived Scarlet Gitelson for their
loving support.
Massachusetts v. EPA, 549 U.S. 497 (2007).
1

The Nobel Peace Prize 2007, available at http://nobelprize.org/nobel_prizes/peace/laureates/2007/
2

(visited Nov 17, 2007).
See President Barack Obama, Address to Joint Session of Congress (Feb. 24, 2009), available at http://
3

www.whitehouse.gov/the_press_of¬ce/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, (Jan. 26, 2009), available at http://www.whitehouse.gov/blog _post/
Fromperiltoprogress/; Obama for America, Barack Obama and Joe Biden: New Energy for America, at
http://www.barackobama.com/pdf/factsheet_energy_speech_080308.pdf (last visited Dec. 22, 2008).
See Peter Roderick, Foreword, in this volume.
4

See David B. Hunter, The Implications of Climate Change Litigation: Litigation for International
5

Law-Making, in this volume.

375
Hari M. Osofsky
376


builds upon his analysis by focusing back on the issues of scale raised in the Intro-
duction.
As a scienti¬c and legal matter, climate change is multiscalar. In other words,
emissions, impacts, and the legal structures that interact with them are simultane-
ously individual, local, state, national, international, and every level in between.6
The book™s chapters demonstrate the complex scalar dynamics both with respect to
the problem and with respect to litigation over it. At the end of their analyses, how-
ever, two foundational issues remain: (1) At what scales should the various aspects of
the problem of climate change be regulated? (2) What role does and should litigation
play in establishing appropriate regulatory scale?
To answer these questions, one must have some idea of what “scale” means. At
the surface, such a de¬nition 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. This book™s organization re¬‚ects such an under-
standing that tribunals are constituted at particular scales; the chapters focus on
cases that we have labeled as subnational, national, or supranational.
A glance at any one of these chapters, however, reveals the danger of such a
simple characterization. For example, my chapter on the U.S. Supreme Court
case Massachusetts v. EPA7 is situated in the “national” part of the book.8 This
categorization of the lawsuit is clearly rational based on the adjudicating tribunal
and the case™s focus on federal law. But it fails 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 that chapter, the “federal law” dispute in the case centered around questions of
the appropriate scale at which to regulate climate change.9
This chapter interweaves themes of regulation and rescaling to re¬‚ect upon the sig-
ni¬cance of these lawsuits. It argues that the problem of climate change and adjudi-
cation over it are simultaneously multiscalar and scale-dependent.10 In other words,

For an in-depth exploration of climate change as a multiscalar regulatory problem, see Hari M.
6

Osofsky, Is Climate Change “International”?: Litigation™s Diagonal Regulatory Role 49 Va. J. Int™l
L. 585 (2009) (draft manuscript on ¬le with author).
See Massachusetts v. EPA, 127 S. Ct. 1438 (2007).
7

See Osofsky, The Intersection of Scale, Science, and Law in Massachusetts v. EPA, in this volume.
8

See id.
9

This chapter uses the term “multiscalar” to mean connected to more than one scale. It uses the term
10

“scale-dependent” to mean tied to a particular scale. As discussed in more depth in Section 2, 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
Re¬‚ections 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 Inst.
Conclusion: Adjudicating Climate Change across Scales 377


as the previous chapters illustrate, 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 speci¬c decision-making scales also must inform an exploration of
these actions™ signi¬cance.
Section 1 of this chapter explores the role that climate litigation plays in regulatory
rescaling,11 as illustrated through the contestation described in the book™s chapters.
Section 2 then argues that climate change litigation provides a valuable complement
to treaty, legislative, and executive action because it fosters needed interaction across
levels of government. The chapter concludes by considering next steps for climate
change litigation as part of the regulatory discourse about this problem.


1. RESCALING THROUGH CLIMATE CHANGE LITIGATION

This section focuses on the rescaling role that climate change litigation plays by
considering what regulatory scale is and how these cases interact with it. As noted, the
de¬nitional issue with which this chapter begins has 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.12 An issue
from these dialogues with particular salience for climate change litigation is the
question of scale™s ¬xity and ¬‚uidity.13 Namely, to what extent are the categories that
this book organizes itself around “ subnational, national, supranational “ terms that

British Geographers 407 (2001); Hari M. Osofsky, The Intersection of Scale, Science, and Law in
Massachusetts v. EPA, 9 Or. Rev. Int™l L. 233 (2007) (republished in this volume), and Nathan F.
Sayre, Ecological and Geographical Scale: Parallels and Potential for Integration, 29 Progress Hum.
Geography 276, 281 (2005).
Rescaling processes are ones in which individuals or entities attempt to jump levels. See Sayre, supra
11

note 10, 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, supra note 10.
See supra note 10
12

For discussion of issues of ¬xity and ¬‚uidity, see Kevin R. Cox, Spaces of Dependence, Spaces of
13

Engagement and the Politics of Scale, Or: Looking for Local Politics, 17 Pol. Geography 1, 20“21
(1998); David Delaney & Helga Leitner. The Political Construction of Scale, 16 Pol. Geography
93, 93 (1997); Andrew Herod, Scale: The Local and the Global, in Key Concepts in Geogra-
phy 229, 234, 242 (Sarah L. Holloway, Stephen P. Rice & Gill Valentine eds., 2003); Deborah G.
Martin, Transcending the Fixity of Jurisdictional Scale, 17 Pol. Geography 33, 35 (1998); Anssi
Paasi, Place and Region: Looking Through the Prism of Scale, 28 Progress Hum. Geography 536,
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, 461 (1998);
Erik Swyngedouw, Excluding the Other: The Production of Scale and Scaled Politics, in Geographies
of Economies 167, 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, 141 (Kevin R. Cox ed., 1997).
Hari M. Osofsky
378


actually have meaning? As government and civil society interact with the problem
of climate change, are these scales steady organizational groupings or constantly
shifting spaces of engagement? How does scale shape regulatory decision making
and vice versa?
And yet for all this literature™s engagement with scale, it rarely separates out
law from other sociopolitical ordering.14 “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 decision makers,15 it can undervalue the role of formal
legal institutions in shaping and being shaped by scale.
Law and legal institutions are structured at speci¬c 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 speci¬c, ¬xed scales. For example, the
Inter-American Commission on Human Rights is a supranational, regional body
established through the Organization of American States.16 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.17
The ¬‚uidity 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 “¬xed” entities, in their stability, provide a
framework in which contestation across scales can take place. The aim of this
litigation is not to shift the scales of the tribunals and what law they can consider,
but rather to rescale aspects of regulating 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


But see Dennis R. Judd, The Case of the Missing Scales: A Commentary on Cox, 17 Pol. Geography
14

29, 30“31 (1998) (analyzing the effect of federalism in the United States).
The legal pluralist literature, for example, engages the importance of addressing the multiple normative
15

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).
For a discussion of the petition to the Inter-American Commission on Human Rights, see Hari M.
16

Osofsky, The Inuit Petition as a Bridge? Beyond Dialectics of Climate Change and Indigenous Peoples™
Rights, in this volume.
For a discussion of the Minnesota case, see Stephanie Stern, State Action as Political Voice in Climate
17

Change Policy: A Case Study of the Minnesota Environmental Cost Valuation Regulation, in this
volume.
Conclusion: Adjudicating Climate Change across Scales 379


on protected world heritage sites? If so, what should its role be?18 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 speci¬c obligations should
such listing entail?19 When localities in Victoria, Australia, engage in environmental
assessments of planned projects, should that process include an examination of
climate impacts? If so, which climate impacts?20
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 com-
munities? Because climate change results from emissions by individuals, govern-
ments, and corporations at multiple scales, the litigation embodies dynamic inter-
actions among relevant public and private parties.
Litigation™s mix of scalar ¬‚uidity and ¬xity thus makes it a particularly helpful tool
for rescaling. Although individual regulators and corporations operate at speci¬c,
even if multiple, scales within a legal framework, the tribunals have the power to rule
upon what is appropriate at a given scale. 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
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 responding21 “ established as appropriate
interest in the problem at a state scale and regulation at a federal scale.22


For a discussion of the World Heritage Commission petitions, see Erica J. Thorson, The World
18

Heritage Convention and Climate Change: The Case for a Climate-Change Mitigation Strategy Beyond
the Kyoto Protocol, in this volume.
For a discussion of the U.S. Endangered Species Act actions, see Brendan R. Cummings & Kassie
19

R. Siegel, Biodiversity, Global Warming, and the U.S. Endangered Species Act: The Role of Domestic
Wildlife Law in Addressing Greenhouse Gas Emissions, in this volume.
For a discussion of the pending cases in Australia over coal mining, see Lesley K. McAllister, Litigating
20

Climate Change at the Coal Mine, in this volume.
For the Bush administration™s response, see Advance Notice of Proposed Rulemaking: Regulating
21

Greenhouse Gas Emissions under the Clean Air Act, EPA-HQ-OAR-2008“0318 (July 11, 2008), avail-
able at http://www.epa.gov/climatechange/anpr.html. For the Obama administration™s response thus
far, see Proposed Endangerment and Cause or Contribute Findings for Greenhouse Gases Under
Section 202(a) of the Clean Air Act; Proposed Rule 74 Fed. Reg. 18885 (proposed Apr. 24, 2009) (to be
codi¬ed at 40 C.F.R. ch. 1); John M. Broder, E.P.A. Clears Way for Greenhouse Gas Rules, N.Y. Times,
Apr. 17, 2009, at A15, available at http://www.nytimes.com/2009/04/18/science/earth/18endanger.html.
For an analysis of these issues, see Osofsky, The Intersection of Scale, Science, and Law in Massachusetts
22

v. EPA, supra note 10.
Hari M. Osofsky
380


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 effec-
tively 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, it opened the question of whether climate change was a regional human
rights issue.23
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.
In a variety of ¬xed fora, petitioners attempt to reshape the regulatory map. This role
raises an important practical and normative question with which Section 2 will
grapple; namely, do these regulatory rescaling efforts serve a constructive role in
creating appropriate responses to climate change?


2. THE VALUE OF REGULATORY RESCALING

This section considers the signi¬cance of these lawsuits connected to multiple lev-
els of government in which debates over regulatory scale take place. However, its
analysis of the value of climate change litigation™s rescaling role faces two major com-
plexities. First, the question of these cases™ “constructive” role has both descriptive
and normative dimensions. Descriptively, the dynamics play out in the particular
ways highlighted in Section 1 and, as a result, impact the regulatory environment.
However, an inquiry into the role that this litigation plays cannot stop with mere
description; fully engaging issues of “constructiveness” requires a normative judg-
ment about how litigation should ¬t into broader regulatory strategy. One™s under-
lying values will impact such a judgment signi¬cantly.
Second, and at least as important, this litigation has both formal and informal
impacts. As the chapters of this book re¬‚ect, these cases have evolved over the past
few years from creative advocacy to some courtroom and administrative victories.
Those particular decisions, which represent a small portion of the overall adjudica-
tion associated with climate change, create binding obligations for regulatory entities
and, as such, serve as a formal part of the regulatory process. But the expressive “
that is, social norm creating “ role of this litigation arguably has been more signi¬-
cant than the gains from implementing those particular judgments.24 Both formally
successful suits and those with little hope of achieving binding results have together
helped to change the regulatory landscape by putting pressure on a wide range of


For further discussion of this case, see Osofsky, The Inuit Petition as a Bridge, supra note 16.
23

For an exploration of expressivism in the War on Terror context, see Mark A. Drumbl, The Expressive
24

Value of Prosecuting and Punishing Terrorists: Hamdan, the Geneva Conventions, and International
Criminal Law, 75 Geo. Wash. L. Rev. 1165, 1169 (2007).
Conclusion: Adjudicating Climate Change across Scales 381


individuals and entities to act.25 For instance, the Hazelwood Mines dispute in
Australia, discussed in Lesley McAllister™s chapter, not only mandated that green-
house gas emissions be included as part of environmental assessment but also resulted
in the ¬rst-ever Greenhouse Gas Reduction Deed between the Victorian government
and International Power Hazelwood.26 The listing of the polar bear as “threatened”
under the U.S. ESA, as described in the chapter by Brendan Cummings and Kassie
Siegel, was accompanied by extensive media analysis of climate change.27 At times,
those involved in ¬ling the petitions have even highlighted their expressive role
explicitly. For example, Sheila Watt Cloutier, then chair of the Inuit Circumpolar
Conference, acknowledged the Inuits™ human rights petition as fundamentally about
opening a dialogue with the United States regarding climate change and human
rights.28
Together, these complexities mean that a full engagement of litigation™s regulatory
role requires a dif¬cult socio-legal analysis. Namely, this rescaling takes place in a
broader policy and cultural context that interacts both with the formal litigation
impacts and with how people view their value. For some, the litigation only has
value currently 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 “ they would want to minimize the opportunity for much of
this advocacy.29
For others, such as the editors of this volume, 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.30 Beyond their gap-¬lling role, these suits
allow concerned individuals and entities to highlight impacts and inequities, as

Numerous legal theories explore these dynamics and their impact on international lawmaking. For
25

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, 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, supra note 15; Berman, supra note 15.
See Lesley K. McAllister, Litigation Climate Change at the Coal Mine, supra note 20.
26

See Cummings and Siegel, supra note 19.
27

See Presentation by Sheila Watt-Cloutier, Chair, Inuit Circumpolar Conference Eleventh Confer-
28

ence of Parties to the UN Framework Convention on Climate Change Montreal, Dec. 7, 2005,
http://www.inuitcircumpolar.com/index.php?ID=318&Lang=En; see also Osofsky, supra note 16.
See, e.g., Eric A. Posner, Climate Change and International Human Rights Litigation: A Critical
29

Appraisal, 155 U. Pa. L. Rev. 1925, 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.”).
See, e.g., Hari M. Osofsky, Climate Change Legislation in Context, 102 Nw. U. L. Rev. Colloquy 245,
30

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.”).
Hari M. Osofsky
382


well as to maintain pressure on governments to address additional aspects of the
problem. Moreover, to the extent that both climate treaties and national legislation
contemplate implementation of their mandates over many decades, the specter of
climate change litigation may help to steel the resolve of the policymakers who
succeed the drafters of such mandates.
Furthermore, how one regards the appropriateness of rescaling through litigation
likely depends on 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.31
Regardless of one™s stance on litigation™s role as part of a well-developed climate
regulation regime, however, the current situation is one of regulatory insuf¬ciency.
As the Introduction makes clear, the Kyoto Protocol has struggled to reach its
goals because of nonparticipation of major emitters like the United States and
many Parties™ dif¬culties 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.32
With the increasing recognition of the problem, national and subnational regula-
tory efforts are also developing rapidly, but they probably will not go far enough fast
enough. At a national level, major emitters are under pressure to address their emis-
sions, 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 suf¬cient political will to make drastic
enough reductions.33 An ever-increasing number of state and local-level govern-
ments 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.34 Although those smaller-
scale efforts represent signi¬cant emissions “ the international network of localities

For analysis of scalar battles in climate change litigation, see Osofsky, supra note 6; Osofsky, supra
31

note 10.
See William C. G. Burns & Hari M. Osofsky, Overview: The Exigencies That Drive Potential Causes
32

of Action for Climate Change, in this volume.
See id.
33

See Kevin McCarty, Bloomberg, Palmer Lead USA and World Mayors on Climate Protection: US
34

Mayors Climate Agreement Hits 500 Milestone, U.S. Mayor Newspaper (May 21, 2007), available at
http://www.usmayors.org/USCM/us_mayor_newspaper/documents/05_21_07/pg1_NYC_climate.asp
(last visited Sept. 10, 2008); see also Hari M. Osofsky & Janet Koven Levit, The Scale of Networks?
Local Climate Coalitions, 8 Chi. J. Int™l L. 409 (2008).
Conclusion: Adjudicating Climate Change across Scales 383


working on climate change, for example, represents roughly 15% of the global
total35 “ their efforts often are not well integrated with larger-scale ones.36
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 is relatively rare. At most, these efforts tend to be predominantly vertical, with a
top-down or bottom-up scheme involving different levels of government, or predom-
inantly horizontal, with different governmental entities at the same level working
together.37 Although many policymakers acknowledge the importance of crosscut-
ting efforts and 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.38
The current regulatory environment and its limitations reinforce the importance
of the socio-legal role that climate change litigation plays. The adjudication pro-
vides 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.39 At least as important, it creates 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.40
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 dif¬cult
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 decision makers.41 The combination
of discontent with existing efforts and a wide range of legal mechanisms applicable to
this crosscutting problem make courtrooms and other quasi-judicial fora important
loci for dialogue among disparate actors across levels of governance about how to
address climate change most appropriately.

See ICLEI Global, About CCP, http://www.iclei.org/index.php?id=811 (last visited Sept. 10, 2008).
35

For example, Mayor Gavin Newsom discussed this lack of integration as a problem, as well as
36

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, Apr. 4, 2008.
See Osofsky, supra note 6.
37

See id.
38

See Hunter, supra note 5.
39

See Osofsky, supra note 6.
40

See supra Section 2.
41
Hari M. Osofsky
384


3. THE FUTURE OF CLIMATE CHANGE LITIGATION

Thus far, this concluding chapter has focused 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 a scienti¬c matter,
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 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.42
Moreover, the cases described in this book themselves span more than one time.
Some of them concluded in the past,43 others are ongoing,44 and still others only exist
as a possible future.45 The disputes discussed in each chapter re¬‚ect the many time
scales on which climate regulation takes place. Is there enough scienti¬c 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?
Ultimately, then, the future of this litigation, in terms of both what will and
what should happen, takes place in a spatially and temporally multiscalar context.
How quickly climate change creates impacts people care about and how 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.46
Although signi¬cant uncertainty continues to surround that interaction, the cur-
rent regulatory gaps suggest that the impacts of climate change will likely become
more signi¬cant before our regulatory efforts catch up to the problem, assuming
optimistically that they eventually will.47 In the near term, then, these suits probably
For analyses of some of the intergenerational complexities of addressing climate change, see Edward
42

A. Page, Climate Change, Justice and Future Generations (2006); Burns H. Weston, Climate
Change and Intergenerational Justice: Foundational Re¬‚ections, 9 Vt. J. Envtl. L. 375 (2008).
For example, Stern™s chapter focuses on an action that took place in the mid-1990s but that has ongoing
43

implications. See Stern, supra note 17.
Some of the nuisance suits described in the chapters by David Grossman and Jeffrey Stempel, for
44

instance, are currently pending. See David A. Grossman, Tort-Based Climate Litigation, in this volume;
Jeffrey W. Stempel, Insurance and Climate Change Litigation, in this volume.
For example, the potential actions described in chapters by William Burns; Jennifer Gleason and David
45

Hunter; Andrew Strauss; and Mary Wood have yet to be ¬led. See William C. G. Burns, Potential
Causes of Action for Climate Change Impacts under the United Nations Fish Stocks Agreement,
supra; Jennifer Gleason & David B. Hunter, Bringing Climate Change Claims to the Accountability
Mechanisms of International Financial Institutions, in this volume; Andrew Strauss, Climate Change
Litigation: Opening the Door to the International Court of Justice, in this volume; Mary Christina
Wood, Atmospheric Trust Litigation, in this volume.
Even those more skeptical of the value of this litigation acknowledge that regulatory failures are
46

creating a context for such actions. See Posner, supra note 29, at 1925.
See Burns & Osofsky, supra note 32.
47
Conclusion: Adjudicating Climate Change across Scales 385


will continue the explosive growth “ accompanied by some formal successes “ that
we have seen over the past several years. Moreover, as courts continue to set prece-
dents and the problem evolves, particular legal strategies will become more or less
effective.
Even if regulatory efforts improve, as appears more likely in the United States
since the 2008 elections, these suits may still remain an important lever within
transnational regulation of climate change. Their ability to rescale and to connect
people across scales, both spatial and temporal, 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 crosscutting regulatory solution to this problem, courts and
other fora likely will remain a key space in which people contest and create climate
regulation.
Index




Asia-Paci¬c Partnership on Clean Development
AB32, 31, 39
and Climate, 12
Access to Environmental Information Act, 24
assumption of risk, 205, 206
ACF. See Australian Conservation Foundation
Aswan Dam, 258
ACIA. See Arctic Climate Impact Assessment
atmospheric trust litigation, 99“125
acidity, of oceans, 318“320
carbon accounting, 115“118
ad hoc expert panel, 331
carbon ¬duciary obligation, 109“113
Ad Hoc Working Group on Long-term
carbon orphan shares, 113“114
Cooperative Action, 19
collateral bene¬ts of, 122“124
adder approach, 33
co-tenancy, 106“107
Administrative Procedure Act (APA), 164, 334
declaratory relief, 115
African Charter on Human and People™s Rights,
enforcement and, 114“124
179, 183
injunctive relief, 121“122
African Development Bank, 310“311
nested jurisdictions, 118“119
Agenda for Global Growth and Stability, 13
public trust assets, 108“109
AGIP, 179
public trust law, 101“104
Alaska Center for the Environment v. Browner, 122
res of the trust, 104“106
Albania, 301
in United States, 112
albedo, 88
Australia, 362
Alexander v. Chattahoochee Valley Community
actions in, 23
College, 248
algae, 5 Anvil Hill, 59
brown coal in, 49“50
ALI. See American Law Institute
coal in, 48“50
Alien Tort Claims Act, 178, 190
American Convention on Human Rights, 186 Commonwealth v. Tasmania, 261
EPBC Act, 53
American Declaration of the Rights and Duties of
greenhouse gases in, 48“49
Man, 25, 281
Hazelwood Power Station, 50“55
American Law Institute (ALI), 351
Isaac Plains Mine, 55“59
Antarctic, 7
Kyoto Protocol and, 50, 256, 340“341
Anvil Hill, 59
Sonoma Mine, 55“59
Aoki, Keith, 282
standing to sue in, 63“64
APA. See Administrative Procedure Act
Australian Conservation Foundation (ACF), 23,
Arctic Climate Impact Assessment (ACIA), 154,
52, 362
281, 361
Argentina, 306, 332 Australian Conservation Foundation v. Latrobe
City Council, 23
Arizona Center for Law in the Public Interest v.
Australian Conservation Foundation v. Minister
Hassell, 104
asbestos, 118, 225, 248“249 for Planning, 362
Austria, 341“342
Asian Development Bank, 292, 310,
awareness building, 122, 357
311
Axelrod, Robert, 95
Asian Haze, 352

387
Index
388


Baird, Douglas G., 95 radioactive waste in, 186
Baku-Tbilisi-Ceyhan pipeline, 294, 303“304 UNFCCC and, 364
Bali Action Plan, 13, 19 Canadian Environmental Protection Act, 22, 364
Balling, Robert, 36 CAO. See Compliance Advisor and Ombudsman
Bangladesh, 339 cap-and-trade program, 46
Bank Procedures (BPs), of World Bank, 298 carbon accounting, 118
Barron, David, 87 carbon budget, 119“121
Belgium, 341“342 carbon dioxide (CO2 ), 3
Berlusconi, Silvio, 16 from brown coal, 49
best available science, 158, 165 California and, 15
bicarbonate ions (HCO3 ’1 ), 318 cement and, 319
Bill of Rights, 182 from coal, 4
binding resolution from crude oil, 4
ICJ and, 342“343 electricity and, 32
UNFSA and, 325 environmental cost value for, 36
biodiversity, 145“172 fossil fuels and, 3“4, 319
biological effects, 6 Hazelwood Power Station and, 51
Blair, Tony, 94 IFC and, 308
Blank, Yishai, 85 natural gas and, 300
Bowel Coal, 56 oceans and, 8, 317
Boxer, Barbara, 277 from transportation, 80
BPs. See Bank Procedures United States and, 80
breach of duty, 203“206 urban politics and, 74, 78
Britain, 341“342 carbon ¬duciary obligation, 109“113
brown coal carbon orphan shares, 113“114
in Australia, 49“50 carbon trading, 18
CO2 from, 49 carbonate ions (CO3 2-), 318
Hazelwood Power Station and, 50“51 carbonic acid (H2 CO3 ), 318
BUND, 24 Carson, Rachel, 355
burden of proof, 131 The Case Concerning Oil Platforms, 346
Burns, Wil, 354 causation
Bush, George W., 11, 90, 276 generic, 216“219
greenhouse gases and, 13 proximate, 219“222
speci¬c, 216“219
Buss v. Superior Court, 246
in tort-based litigation, 216“222
CAA. See Clean Air Act UNFSA and, 326“331
CAFE. See corporate average fuel economy CDM. See Clean Development Mechanism
California, 42, 141“142 cement, 3“4
AB32 in, 31, 39 CO2 and, 319
CO2 and, 15 Central Valley Chrysler-Jeep v. Witherspoon, 334
public nuisance and, 196 Centennial Coal, 59
San Bernardino County in, 74 Center for Biological Diversity, 22, 152, 162
California Global Warming Solutions Act of Center for Biological Diversity v. Brennan, 162
Center for Clean Air Policy, 81
2006, 76
Center for International Environmental Law, 273
California v. General Motors Corp., 196, 204, 334,
CEQ. See Council on Environmental Quality
359
justiciability in, 214 CH4 . See methane
liability insurance and, 231 Chad-Cameroon pipeline, 294, 297
pollution exclusion and, 244“245 IFC and, 303“304
relief in, 223 MIGA and, 303“304
CAN. See Climate Action Network Chernobyl, 352
Canada, 16 Chevron, 179
actions in, 22 Chile, 306, 332
Inuit Circumpolar Conference and, 276 China, 18
Kyoto Protocol and, 341“342, 364 coal-¬red plants in, 6, 62
Index 389


pollution exclusion and, 245
energy demands in, 6
relief in, 223
fossil fuels and, 17“18
constructivism, 93“95, 380
greenhouse gases and, 315
consultation process, in ESA, 167“170
UNFSA and, 315
consumer expectation test, 202
Ciborowski, Peter, 37
contributory negligence, 205
City of Bloomington, Ind. v. Westinghouse Electric
Convention on Long-Range Transboundary Air
Corp., 219
Pollution, 354
City of Milwaukee v. State, 105, 212
CoP. See Conference of the Parties
class action, 118
copepod, 317
Clean Air Act (CAA), 20“21, 101, 212
coral reefs, 7“8
Massachusetts v. EPA and, 134
ESA and, 149“154
public nuisance and, 213
¬sh and, 8
Clean Water Act (CWA), 212
corporate average fuel economy (CAFE), 168
Clear Skies Initiative, 11
corporations, multinational, 188, 190
Climate Action Network (CAN), 371
corpus. See res of the trust
Climate Change Initiative, 95
co-tenancy, 106“107
Clinton, Bill, 94, 365
Council on Environmental Quality (CEQ), 67
Clinton Foundation, 95
CO2 . See carbon dioxide County of Oneida v. Oneida Indian Nation of
CO3 2-. See carbonate ions New York, 212
critical habitat, 148, 166
coal. See also brown coal
CRP. See Compliance Review Panel
in Australia, 48“50
crude oil, 4
CO2 from, 4
electricity and, 12 Center for Biological Diversity v. Norton, 334
Cummings, Brendan, 26, 381
mines, 48“71
CWA. See Clean Water Act
coal-¬red plants
in China, 62
damages
greenhouse gases and, 62
apportionment of, 227“229
in India, 62
liability for, 227“229
Kyoto Protocol and, 62
restrictions on, 226“227
steady power ¬‚ow from, 44
signi¬cant, 234
in United States, 6, 62
standards for, 223“224
coastal erosion, 6
types of, 224“226
coastal ¬‚ooding, 9
danger list, 255
cod, 316
deaths, 5
Colombia, 186
Declaration of the Rights of Man, 182
Columbia River, 120
declaratory relief, 115
Comer v. Murphy Oil, 334
defenses, for tort-based litigation, 203“206
Comer v. Nationwide Mutual Insurance, 21“22
deforestation. See forests
command-and-control functions, 87“89
Democratic Party, 91
common law
democratization, 370
federal, 210“213
Denmark, 345“346
preemption and, 210“214
Kyoto Protocol and, 341“342
state, 213“214
Department of Energy, 117
common pool resources, 73, 80
Department of Environmental Protection v. Jersey
Commonwealth v. Tasmania, 261
compact development, 92 Central Power & Light Co., 105
design defects
comparative fault, 205
products liability and, 201“203
Compliance Advisor and Ombudsman (CAO),
risk-bene¬t test for, 202
293, 303“309
diagonal regulation, 383
Compliance Review Panel (CRP), 310
dialectical regulation, 274, 283“286
Conference of the Parties (CoP), 365
Directors and Of¬cers liability insurance (D&O),
Connecticut v. American Electric Power Company,
244
171, 195, 204, 334, 359
disease, 5, 9
justiciability in, 214
Index
390


distal water ¬shing nations (DWFNs), 316 for sulfur dioxide, 36
D&O. See Directors and Of¬cers liability Environmental Defence Society (Inc.) v. Auckland
insurance Regional Council, 79
Doremus, Holly, 130, 131 Environmental Effects Act (EE Act), 51“52
downstream greenhouse gases, 48, Environmental Effects Statement (EES), 51
Environmental Health and Safety (EHS), 308
63
duty to cooperate, 329 environmental impact, 61“70
duty to defend, 235, 236“237 Environmental Impact Assessment Act, 187
duty to warn, 204 environmental impact statement (EIS), 65
DWFNs. See distal water ¬shing nations Environmental Planning & Assessment Act
Dwyer, John, 40 (EP&A), 59
indirect greenhouse gases and, 61
EA Policy. See Environmental Assessment OP Environmental Protection Agency (EPA), 20“21.
Earth Summit. See United Nations Conference See also Massachusetts v. EPA
on Environment and Development New York v. EPA, 334
Earthjustice, 273 environmental risk, 230
ECHR. See European Court of Human Rights environmental services, 117
ecological processes, 52“53 EPA. See Environmental Protection Agency
Ecuador, 186 EP&A. See Environmental Planning &
Edelman, Murray, 39 Assessment Act
EE Act. See Environmental Effects Act EPBC Act. See Environment Protection and
EES. See Environmental Effects Statement Biodiversity Conservation Act
EEZs. See Exclusive Economic Zones epistemic community, 365
EHS. See Environmental Health and Safety Equal Protection Clause, 184
EIS. See environmental impact statement ESA. See Endangered Species Act
electricity Ethiopia, 345“346
CO2 and, 32 EU. See European Union
European Bank for Reconstruction and
coal and, 12
Development, 293, 310“311
in United States, 12
European Convention on Human Rights and
elkhorn coral, 149“154
Fundamental Freedoms, 188
Endangered Species Act (ESA), 22, 26,
European Court of Human Rights (ECHR), 187,
101
consultation process in, 167“170 188
European Union (EU), 13
coral reefs and, 149“154
Kyoto Protocol and, 16
greenhouse gases and, 145“172
UNFSA and, 315
jeopardy and, 167“170
Exclusive Economic Zones (EEZs), 314
NGOs and, 149
UNCLOS and, 322
polar bears and, 154“162, 381
expected injury, 241“242
take prohibition in, 170“171
experts, 110
energy demands, 6, 302
ad hoc panel of, 331
Energy Information Agency, 18
Export Credits Guarantee Department, 292
enforcement
Export Development Canada, 310“311
atmospheric trust litigation and, 114“124
Export-Import Bank, 21, 65, 292
of carbon budget, 119“121
Exxon Mobil, 184
Engel, Kirsten, 40
Environment Court, 72“98
fair-share principle, 116
Environment Protection and Biodiversity
Kyoto Protocol and, 111
Conservation Act (EPBC Act), 53, 56
FCN. See Friendship, Commerce and Navigation
Environmental Assessment OP (EA Policy), 298
Federal Ministry for Environment and Heritage,
Environmental Assessment Sourcebook, 300
environmental cost valuation 55“59
First Assessment Report, 38
for CO2 , 36
Fischel, William, 83
for lead, 36
¬sh, 5. See also United Nations Fish Stocks
in Minnesota, 31“47
Agreement
for nitrogen oxide, 36
Index 391


Glacier National Park, 269
coral reefs and, 8
glaciers, 6, 269
technology and, 322
Gleason, Jennifer, 27
Fish and Wildlife Service (FWS), 145
Global Change Research Act of 1990, 162
¬‚aring. See natural gas ¬‚aring
Global Climate Initiative (GCI), 11
¬‚ood insurance, 231
Global Environment Facility (GEF), 294
Food and Agriculture Organization (FAO), 322,
UNFCCC and, 294
331, 349
Gore, Al, 355, 357, 375
food production, 9“10
Gray, Peter, 60
Ford, Richard, 282
foreseeable future, 164 Gray v. Minister for Planning, 23
Great Barrier Reef World Heritage Area, 53, 57,
foreseeable risk, 202
forests, 4, 8 255
Greece, 345
Fort Mojave Indian Tribe v. United States, 105
Greenhouse Gas Reduction Deed, 54, 381
fortuity, 241“242
greenhouse gases, 2, 3. See also indirect
fossil fuels, 3. See also speci¬c fuels
greenhouse gases
China and, 17“18
in Australia, 48“49
CO2 and, 3“4, 319
Bush and, 13
IFC and, 303“304
cap-and-trade program for, 46
MIGA and, 303“304
China and, 315
France, 182
coal-¬red plants and, 62
free riders, 83
downstream, 48
freedom of information, 187
ESA and, 145“172
Friends of the Earth Canada, 21, 22, 65, 206, 334,

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