. 6
( 16)


future generations.118 The atmosphere is an endowment to which future generations

See Mary Christina Wood, Government™s Atmospheric Trust Responsibility, 22 J. Envtl. L. & Litig.

369, 374 (2008).
Hunter, supra note 114, at 1.

See Natural Capitalism, supra note 86.

Addressing climate crisis has been presented by civic and religious leaders as a moral obligation

toward future generations. See Al Gore, Introduction, in An Inconvenient Truth: The Planetary
Emergency of Global Warming and What We Can Do About It (Rodale Books 2006); Al Gore,
Op-Ed., Moving Beyond Kyoto, N.Y. Times, July 1, 2007, available at http://www.nytimes.com/2007/
Mary Christina Wood

have a legitimate moral claim, and failure to safeguard it amounts to generational
theft. Moreover, on the political level, by de¬ning the atmosphere as common
property, the trust positions all nations of the world in a logical relationship toward
each other and toward Nature.119 The trust framework de¬nes respective sovereign
obligations in quanti¬able, straightforward terms.120 Once presented in U.S. courts,
citizen litigants of other countries may invoke the trust concept. India, for exam-
ple, already has a robust public trust doctrine that citizens there can draw upon to
establish atmospheric trust responsibility.121 In short, by de¬ning the trust paradigm
of sovereign obligation in a litigation venue, courts may play a tremendous role in
harnessing the collective momentum from various other realms in which a paradigm
shift is necessary and already taking place.


Atmospheric trust litigation challenges lawyers and judges to take fundamental
principles of public trust law and apply them in coherent fashion to a new and
urgent context so as to arrive at a uniform, quanti¬able measure of governmental
responsibility to reduce carbon. The task is made easier by the fact that these
principles are logical, compelling, and seemingly applicable to all governments.
However, judges have become so accustomed to issuing rulings within the detailed
con¬nes of statutory law that many may have lost the imagination to construct

exprod=permalink (“Our children have a right to hold us to a higher standard when their future “
indeed, the future of all human civilization “ is hanging in the balance.”); Colin Woodard,
In Greenland, An Interfaith Rally for Climate Change, Christian Sci. Monitor, Sept. 12,
2007, available at http://www.csmonitor.com/2007/0912/p06s01-woeu.html?page=1 (Shiite, Buddhist,
Hindu, Jewish, Christian, and Shinto leaders join in commitment at Greenland interfaith climate
rally to leave the planet “in all its wisdom and beauty to the generations to come.”). The legal
arguments setting forth an obligation to future generations have been compiled and analyzed in
Burns Weston, Climate Change and Intergenerational Justice: Foundational Re¬‚ections, 9 Vt. J.
Envtl. L. (2008).
See Ved P. Nanda & William K. Ris, Jr., The Public Trust Doctrine: A Viable Approach to International

Environmental Protection, 5 Ecology L.Q. 291, 306 (1976) (inventorying trust concepts in other
countries and concluding, “The principles of public trust are such that they can be understood and
embraced by most countries of the world.”); Sand, supra note 21, at 57“58 (suggesting trust principles
as framework for international law, stating, “[A] transfer of the public trust concept from the national to
the global level is conceivable, feasible, and tolerable. . . . The essence of transnational environmental
trusteeship . . . is the democratic accountability of states for their management of trust resources in the
interest of the bene¬ciaries “ the world™s ˜peoples™. . . . ”) (emphasis in original).
Absent such quanti¬cation, nations are settling for inadequate measures. See Reuters, G8 Agree-

ment on Climate Change a ˜Disgrace™ “ Al Gore, June 14, 2007, available at http://www.alertnet.
org/thenews/newsdesk/L14317004.htm (last visited June 16, 2008) (G8 leaders agreeing only to “sub-
stantial” reduction in greenhouse gases and failing to adopt concrete numerical commitments).
M.C. Mehta v. Kamal Nath, 1 SCC 388 (India 1997); Karnataka Indus. Areas Dev™t Bd. v. C. Ken-

chappa, AIRSCW 2546 (India 2006); T.N. Godavaman Thirumalpad v. Union of India, WP 202 1995,
CDJ 2005 SC 713 (India 2005); Perumatty Grama Panchayat v. State of Kerala, 2004 (1) KLT 731
(India 2003). For discussion of India™s public trust doctrine, see Deepa Badrinarayana, The Emerging
Constitutional Challenge of Climate Change: India in Perspective, 19 Fordham Envtl. L.J. 1, n. 137
Atmospheric Trust Litigation 125

meaningful remedies under traditional common law. At a time in history when
thinkers across the world are calling for new, innovative technologies and practices to
address climate crisis, lawyers should pioneer promising, if untested, legal constructs
to address carbon loading of the atmosphere. If one thing is clear, it is that the
body of statutory environmental law is a product of an altogether different era,
formulated to respond to circumstances far less urgent, less dangerous, and less
encompassing than those now confronting society. The environmental statutes were
not crafted to address a planetary emergency.122 The trust claim de¬nes a binding
¬duciary obligation organic to all levels of government “ one that is calibrated
mathematically to scienti¬c understanding. In that way, it is perhaps the only claim
that speaks directly to the sovereign™s duty at this pivotal time in the history of human

Climate Code Red, supra note 57, at 63“66.


The Intersection of Scale, Science, and Law
in Massachusetts v. EPA

Hari M. Osofsky—


Justice Scalia: But I always thought an air pollutant was something different from
a stratospheric pollutant, and your claim here is not that the pollution of what
we normally call “air” is endangering health. . . . [Y]our assertion is that after
the pollution leaves the air and goes up into the stratosphere it is contributing
to global warming.
Mr. Milkey: Respectfully, Your Honor, it is not the stratosphere. It™s the tropo-
Justice Scalia: Troposphere, whatever. I told you before I™m not a scientist.
Justice Scalia: That™s why I don™t want to deal with global warming, to tell you
the truth.1

The above exchange occurred between Justice Scalia and James Milkey, Assistant
Attorney General of Massachusetts, during the oral argument in Massachusetts v.
EPA,2 the ¬rst case heard by the U.S. Supreme Court on governmental regulation
of greenhouse gas emissions. It not only illustrates the complexities of judicial
— Associate Professor, Washington and Lee University School of Law; B.A., J.D., Yale University.
The author can be contacted through osofskyh@wlu.edu. This chapter is an edited version of an
identically titled symposium piece published in Volume 9 of the Oregon Review of International Law.
A truncated version of this piece, based on my remarks at the ASIL conference, was published in the
ASIL Proceedings of the 101st Annual Meeting. The initial version of this chapter was prepared for
Bart Bartlein™s course Climatological Aspects of Global Change, and I am very grateful to him for
his many insights on climate science, which have fundamentally shaped my analysis. The piece also
bene¬ted from feedback during the Oregon Review of International Law Symposium, as well as from its
presentation at the 2007 American Society of International Law (ASIL) Annual Meeting. In addition,
Wil Burns, Holly Doremus, Alexander Murphy, and Eve Vogel provided very helpful comments that
greatly improved the piece. I would like to thank my research assistants “ Will Cooksey, Michelle
Platt, and Jeff Richards “ for their helpful work in exploring the initial impacts of Massachusetts v.
EPA, as well as Stefanie Herrington for her meticulous review of drafts. As always, the piece would not
have been possible without the loving support of Joshua, Oz, and the newly arrived Scarlet Gitelson.
Transcript of Oral Argument at 22“23, Massachusetts v. EPA, 549 U.S. 497 (2007) (No. 05-1120), 2006

WL 3431932 at 22“23.
Massachusetts v. EPA, 549 U.S. 497 (2007).

Hari M. Osofsky

engagement with the science of global warming but also provides a window into one
of the greatest obstacles to effective regulatory approaches to the problem of climate
change, which the Obama administration must grapple with as it embarks upon
its ambitious climate and energy initiatives. Namely, greenhouse gas emissions and
their impacts are foundationally multiscalar; they range from the most individual to
global levels.
Referencing climate change as a multiscalar problem, however, only serves as a
starting point for further discussion. “Scale” is a complex and contested concept in
both the geography and the ecology literatures. Geographers have de¬ned it as (1)
“a nested hierarchy of bounded spaces of differing size”; (2) “the level of geograph-
ical resolution at which a given phenomenon is thought of, acted on or studied”;
(3) “the geographical organizer and expression of collective social action”; and
(4) “the geographical resolution of contradictory processes of competition and
cooperation.”3 Ecologists supplement this understanding with additional concepts.
They de¬ne scale as being composed of grain (“the ¬nest level of spatial or temporal
resolution available within a given data set”) and extent (“the size of the study area
or the duration of the study”).4
This chapter analyzes the interaction of scale (in its many guises), science, and law
in the Supreme Court briefs, oral argument, opinion, and dissents in Massachusetts
v. EPA as a window into the complex dynamics at play in climate change litigation.
Its focus is not on the complexities of implementing the decision, another important
topic beyond the scope of this chapter, but rather on what can be learned from the
interactions that took place in this lawsuit. Formally, the case primarily occurs at a
national level; the parties dispute the interpretation of federal law in an action that
was heard by federal courts at every level. It is precisely this apparently “national”
character of the case, however, that makes it a good example of the multiscalar
dynamics of international decision making. Despite the formal federal level of
this case, both its actors and its arguments have subnational and supranational
dimensions that are deeply intertwined with the science of climate change.
Section 1 draws from Holly Doremus™s work on the use of science as a tool
in, and an obstacle to, regulatory approaches and from Nathan Sayre™s analysis of
the concept of scale to consider the particular challenges posed by the multiscalar
context of climate change. The section intertwines their theories to argue that both
sides in Massachusetts v. EPA use scienti¬c uncertainty together with the scale of the
problem to forward their version of appropriate regulation. Section 2 then supports
this argument through a detailed analysis of the interaction of scale, science, and law
in the briefs and opinions. Section 3 examines the implications of that interaction
for how this case should be ¬t into a model of international legal decision making

3 Neil Brenner, New State Spaces: Urban Governance and the Rescaling of Statehood 9
(2004) (internal quotations omitted).
Nathan F. Sayre, Ecological and Geographical Scale: Parallels and Potential for Integration, 29

Progress Hum. Geography 276, 281 (2005).
The Intersection of Scale, Science, and Law in Massachusetts v. EPA 131

with respect to climate change. The chapter concludes with broader re¬‚ections on
strategies for improving the way in which courts engage the scale-science con¬‚uence.


This section interweaves the work of two California-based academics: Holly Dore-
mus, a law professor whose scholarship explores the way in which science is used
in natural resource regulation,5 and Nathan F. Sayre, a geographer whose recent
scholarship has compared the analysis of scale in geography and ecology literatures.6
This section summarizes each of their approaches and then interweaves them in the
context of Massachusetts v. EPA.

1.1. Defensive Uses of Scienti¬c Uncertainty
Holly Doremus™s article Science Plays Defense: Natural Resource Management in the
Bush Administration explains that the biggest dif¬culty regarding science and politics
in natural resources management is not the politicization of science, but rather the
scientizing of politics. Both conservationists and those who seek to block regulation
can use science as a tool. Doremus notes: “The combination of actual uncertainty
and public expectations of certainty makes the rhetoric of science equally available
to the regulatory offense and defense.”7 She traces offensive and defensive uses of
science and then explores four main ways in which the Bush administration used
science defensively: high burden of proof, value choices in the face of ambiguity,

See Holly Doremus, Science Plays Defense: Natural Resource Management in the Bush Administration,

32 Ecology L.Q. 249 (2005) [hereinafter Science Plays Defense]; Holly Doremus & A. Dan Tarlock,
Science, Judgment, and Controversy in Natural Resource Regulation, 26 Pub. Land & Resources
L. Rev. 1 (2005); Holly Doremus, The Purposes, Effects, and Future of the Endangered Species Act™s
Best Available Science Mandate, 34 Envtl. L. 397 (2004); Holly Doremus, Listing Decisions under
the Endangered Species Act: Why Better Science Isn™t Always Better Policy, 75 Wash. U. L.Q. 1029
(1997). For additional analyses of the intersection between law and science in public policymaking,
see Adaptive Governance: Integrating Science, Policy, and Decision Making (Ronald D.
Brunner et al. eds., 2005); Rescuing Science from Politics: Regulation and the Distortion of
Scienti¬c Research (Wendy Wagner & Rena Steinzor eds., 2006); Donald T. Hornstein, Accounting
for Science: The Independence of Public Research in the New, Subterranean Administrative Law, 66
Law & Contemp. Probs. 227 (2003).
See Sayre, supra note 4. A substantial geography literature engages these questions of scale and

science. See, e.g., Louis Lebel, Po Garden & Masao Imamura, The Politics of Scale, Position, and
Place in the Governance of Water Resources in the Mekong Region, 10 Ecology & Soc™y 18 (2005);
James McCarthy, Scale, Sovereignty, and Strategy in Environmental Governance, 37(4) Antipode 731
(2005); Erik Swyngedouw, Scaled Geographies: Nature, Place, and the Politics of Scale, in Scale and
Geographic Inquiry: Nature, Society, and Method 129 (Eric Shepard & Robert B. McMaster
eds., 2004). An extensive review of that literature is beyond the scope of this brief chapter, though I
plan to address it in more depth in future work. I choose to focus on Nathan Sayre™s approach here,
however, because of the particular way in which he interweaves ecological and scalar issues.
Doremus, Science Plays Defense, supra note 5, at 258.
Hari M. Osofsky

resolution of scienti¬c certainty issues at the agency level, and limits to information
These offensive and defensive strategies around science are apparent in the debates
over climate change regulation in the United States. In fact, Doremus even quotes
a memorandum from communication professional Frank Luntz on the topic to
illustrate the defensive approach:

The most important principle in any discussion of global warming is your commit-
ment to sound science. Americans unanimously believe all environmental rules
and regulations should be based on sound science and common sense. Similarly,
our con¬dence in the ability of science and technology to solve our nation™s ills is
second to none. Both perceptions will work in your favor if properly cultivated.9

If Luntz is correct, a reinforcement of current scienti¬c uncertainty and of the
importance of waiting for future technological and scienti¬c developments can
serve as a powerful tool in blocking more stringent regulation of greenhouse gas
Moreover, as Doremus has explained, in judicial decision making, the framing
of science is often outcome determinative.10 The climate change context is no
exception. The regulatory debates at the core of the arguments in Massachusetts v.
EPA, discussed in detail in Section 2, exemplify the offensive and defensive uses of
science that she has highlighted.

1.2. Debates over Scale
The arguments over science in Massachusetts v. EPA, however, consistently have
a particular geographic dimension to them: scale. Both the geography and the
ecology literatures, which engage scienti¬c issues very much interconnected with
climate change, have their own distinct discourses about scale. Sayre™s recent article,
Ecological and Geographical Scale: Parallels and Potential for Integration, attempts
to interweave the two debates. He explains:

In both ecology and human geography, the adequacy of research at any single scale is
clearly in question, but the concept of scale itself remains unclear. Most participants
in the debates acknowledge the need for studies that span multiple scales, and most
conceive of different scales as being organized in some sort of hierarchical fashion.
Within human geography, recent contributions have established several further
points of general agreement: that scale is socially constructed and thus historically
contingent, that it is politically contested, and that it is centrally important to
understanding a variety of political, sociocultural, economic and environmental

Id. at 266“95.

Id. at 255 (quoting Luntz Research Companies, Straight Talk, The Environment: A Cleaner, Safer,

Healthier America 138, available at http://www.luntzspeak.com/graphics/LuntzResearch.Memo.pdf
(last visited June 16, 2008)).
Doremus, Science Plays Defense, supra note 5.
The Intersection of Scale, Science, and Law in Massachusetts v. EPA 133

phenomenon. The debate has foundered on basic conceptual and methodological
questions, however. What exactly is scale? How should researchers theorize and
use it?11

He goes on to argue that human geographers should draw three primary lessons
from the ecologists™ work on scale: that it is critical to distinguish between scale and
level,12 that rescaling processes are about “shift[ing] the level at which some process
occurs” within “an existing structure of social organization,”13 and that hierarchical
models of scale can be misleading at times.14
Sayre™s analysis of scale, like Doremus™s discussion of the scientizing of politics, is
re¬‚ected in the arguments of Massachusetts v. EPA. As discussed in detail in Section
2, both sides consistently try to (1) rescale, that is, change the relevant level for the
argument, and (2) create hierarchies among levels “ that is, assert the primacy of a
particular level “ in order to accomplish their goal of proving the appropriateness
or inappropriateness of the EPA exercising its discretion to regulate motor vehicle
greenhouse gas emissions.

1.3. Scale as a Lens on Science and the Law
The key point of this chapter is not simply that both scientizing and rescaling
occur in this case, but rather that they are being used together to accomplish
litigative goals. The large scale “ both spatially and temporally “ of climate change,
and the resulting scienti¬c uncertainties about subnational contributions to it and
impacts from it, are combined by the respondents in an attempt to block regulatory
behavior. In contrast, petitioners assert the appropriateness of nation-level regulation
of supranational phenomenon and certainty around subnational contributions and
effects to try to push for EPA action.15
These dynamics suggest that offensive and defensive strategies around science
have particular nuances in multiscalar contexts in which relevant levels range from
the individual to the global. Namely, the existence of multiple levels to jump and
many possible arrangements of hierarchy allows for intersecting efforts at rescaling
that place judges in a particularly dif¬cult decision-making position. Moreover,
the nexus of uncertainty around both science and scale creates additional judicial
discretion and opportunities for litigants to attempt to manipulate the outcome.16

Sayre, supra note 4, at 277“78.

See id. at 283“85.

See id. at 285.

See id. at 286.

See infra Section 2. As Holly Doremus has noted, the dynamics of this case represent only one variation

of the intersection of scale, science, and regulation. In other contexts, such as debates over critical
habitat, scaling down also can be an antiregulatory strategy because scienti¬c uncertainty is often
magni¬ed at smaller scales. E-mail from Holly Doremus, Professor, UC Davis School of Law, to Hari
Osofsky, Assistant Professor, University of Oregon School of Law (Mar. 20, 2007) (on ¬le with author).
Frederic Kirgis has explored similar issues in the context of legal formulas that contain two elements.

In particular, he notes that courts and other decision makers are often unaware, or at least do not
Hari M. Osofsky


Massachusetts v. EPA involves the appropriateness of the U.S. EPA™s denial of a
petition requesting that it regulate motor vehicles™ greenhouse gas emissions under
section 202(a)(1) of the Clean Air Act.17 The case is just one of many petitions and
lawsuits engaging global climate change that have been ¬led around the world in
subnational, national, and supranational fora. These litigative efforts tend to take
two main approaches: (1) claims against governmental entities to force or limit
regulatory behavior and (2) claims against corporate emitters to limit emissions
directly. Massachusetts v. EPA falls into the ¬rst category. In both forms, the cases
serve as part of state-corporate regulatory interactions around climate change.18
This Section explores the dynamics among scale, science, and law in the case. It
considers the scales represented by the petitioners and respondents in the case, the
use of science and scale in the claims by petitioners and respondents, and the implica-
tions of these approaches for efforts to use science as a tool for and against regulation.

2.1. Actors
The parties to Massachusetts v. EPA constitute a diverse group that cuts across
scales. Twelve states, three cities, a U.S. territory, and thirteen nongovernmental
organizations brought the petition. Ten other states and nineteen industry and
utility groups “ organized into six conglomerate entities “ and the U.S. EPA served
as respondents.19
These petitioners and respondents span numerous geographic regions at multiple
levels of governance. The state and local level governmental petitioners tend to be
located toward the coasts and respondents mostly are based in the middle of the

articulate an awareness, that they are using a sliding scale “ “[t]he greater the degree to which one
element is satis¬ed, the lesser the degree to which the other need be” “ in such situations. Frederic
L. Kirgis, Fuzzy Logic and the Sliding Scale Theorem, 53 Ala. L. Rev. 421, 422“23 (2002).
Massachusetts v. EPA, 549 U.S. 497 (2007).

For a discussion of the geography of many of these suits, see Hari M. Osofsky, The Geography

of Climate Change Litigation: Implications for Transnational Regulatory Governance, 83 Wash. U.
L.Q. 1789 (2005) [hereinafter Geography of Climate Change Litigation]. For other analyses of climate
change litigation, see, for example, Joseph Smith & David Shearman, Climate Change Litigation:
Analysing the Law, Scienti¬c Evidence & Impacts on the Environment, Health & Property
(2006); Roda Verheyen, Climate Change Damage and International Law, Prevention Duties
and State Responsibility (2005); William C.G. Burns, The Exigencies That Drive Potential Causes
of Action for Climate Change Damages at the International Level, 98 Am. Soc™y Int™l L. Proc. 223
(2004); Richard W. Thackeray, Jr., Note, Struggling for Air: The Kyoto Protocol, Citizens™ Suits under
the Clean Air Act, and the United States™ Options for Addressing Global Climate Change, 14 Ind. Int™l
& Comp. L. Rev. 855, 884“98 (2004).
A complete list of parties is available at International Center for Technology Assessment (ICTA),

Global Warming Petitioners, http://www.icta.org/doc/global%20warming%20petitioners%20¬nal.pdf
(last visited June 16, 2008) [hereinafter ICTA Parties Listing].
The Intersection of Scale, Science, and Law in Massachusetts v. EPA 135

country. The national-level governmental respondent, the U.S. EPA, is based in
Washington, D.C., but has ten regional of¬ces located in major cities throughout
the country; it thus engages national policy issues through interacting in multiple
places with various levels of government.20 The nongovernmental entities similarly
have a mix of local, state, national, and international ties.21 And the preceding lists
do not even include the many who ¬led amicus briefs or other actors engaged in
responding to the Supreme Court™s ruling.
From a scalar perspective, then, this case interacts with far more than simply the
federal level at which it occurs. The actors reveal Massachusetts v. EPA as a situs for
contestation across levels of governance between a wide variety of interested actors.
As I have analyzed elsewhere, these dynamics pose dif¬cult questions about how
to locate this case in an analysis of transnational regulatory governance of climate

2.2. Claims
The facts in this case involve the U.S. EPA™s denial of a national-level rulemaking
petition under a national-level law, the Clean Air Act, to address emissions by
vehicles in places around the United States. These localized emissions contribute to
the supranational phenomenon of climate change, which produces varying speci¬c
effects in particular places at a subnational level. The substantive and procedural
claims made by the petitioners rely upon national-level statutes to address a situation
that occurs across spatial and temporal scales. Moreover, this intersection of scalar
issues and scienti¬c data was at the core of both the standing and substantive issues
debated in the U.S. Supreme Court.

2.2.1. Standing
Although standing was not one of the issues initially before the court,23 the respon-
dents raised it in their brie¬ng and the Supreme Court justices discussed it

EPA Organizational Chart, http://www.epa.gov/epahome/organization.htm (last visited June 16, 2008).

Massachusetts v. EPA, 549 U.S. 497 (2007).
For an in-depth discussion of those ties, see Geography of Climate Change Litigation, supra note 18,

at 1830“34.
See Hari M. Osofsky, The Geography of Climate Change Litigation Part II: Narratives of Massachusetts

v. EPA, 8 Chi. J. Int™l L. 573 (2008); Hari M. Osofsky, Climate Change Litigation as Pluralist Legal
Dialogue?, 26 Stan. Envtl. L.J. & 43 Stan. J. Int™l L. 181 (2007) (Joint Issue).
The questions presented in the petition for writ of certiorari were: “1. Whether the EPA Adminis-

trator may decline to issue emission standards for motor vehicles based on policy considerations not
enumerated in section 202(a)(1). 2. Whether the EPA Administrator has authority to regulate carbon
dioxide and other air pollutants associated with climate change under section 202(a)(1).” Petition for
Writ of Certiorari at i, Massachusetts v. EPA, 549 U.S. 497 (2007) (No. 05-1120), 2006 WL 558353
at i.
Hari M. Osofsky

extensively in oral argument. The Brief of the Federal Respondent claimed that
the supranational and extended time scales of climate change limited the impact of
national-level decisions to limit reductions:

Global climate change is, by de¬nition, a global phenomenon. The greenhouse
gases at issue here are “fairly consistent in concentration, everywhere along the
surface of the earth.” The vast majority “ as much as 80 percent “ of all greenhouse
gas emissions emanate from countries other than the United States. For that reason,
reducing greenhouse gas emissions within the United States is unlikely, as a general
matter, to have a signi¬cant long-term impact on climatic conditions in this country
without reductions of greenhouse gas emissions in other parts of the world.24

The respondents further argue with respect to standing that the impacts at state
and local levels are too speculative because of the extent of both the space and
time involved. As the Brief for Respondents Alliance of Automobile Manufacturers,
Engine Manufacturers Association, National Automobile Dealers Association, and
the Truck Manufacturers Association (Brief for Respondents AAA) put it:

[B]ecause they do not face any imminent injury, petitioners are forced to rely on
predictions of harm decades in the future, the occurrence of which is largely (if
not entirely) dependent on actions other nations take in their own regulation of
greenhouse gas emissions. Petitioners™ hypotheses, each of which is the subject
of an active scienti¬c debate, are reduced to conjecture by the inherent uncer-
tainty of global events that will unfold between now and the time of the predicted

These claims by respondents thus use scienti¬c uncertainty together with the alleged
global scale of the problem to argue against the appropriateness of the petitioners
being allowed to be before the Supreme Court.
The petitioners™ reply to the standing argument rescales the issue back to the state
and local levels and the present time. They note:

Rising temperatures have injured petitioners in the following speci¬c and concrete
ways: coastal States have lost and are losing land to rising sea levels; ground-level
ozone (smog) is exacerbated by rising temperatures, leading to adverse health effects
and costly efforts on the part of States to address the problem; glaciers are melting,
causing distinct injuries to particular individuals. These injuries span a broad range,
from the Commonwealth of Massachusetts losing coastal land to Frank Keim no
longer being able to hike on the Alaskan glaciers he used to enjoy.
Petitioners™ injuries are not “some day” injuries, as respondents contend; they
are injuries in the here and now. Nor do petitioners™ declarations describe mere

Brief for Federal Respondent at 13, Massachusetts v. EPA, 549 U.S. 497 (No. 05“1120), 2006 WL

3043970, at — 13 (citation omitted).
Brief for Respondents Alliance of Auto. Mfrs., Engine Mfrs. Ass™n, Nat™l Auto. Dealers Ass™n, Truck

Mfrs. Ass™n at 13, Massachusetts v. EPA, 549 U.S. 497 (No. 05“1120), 2006 WL 3023028 at — 13 (citations
The Intersection of Scale, Science, and Law in Massachusetts v. EPA 137

“generalized grievances”; they attest to harms being visited “ right now “ upon
particular individuals and particular States.26

This reply relies on the same scienti¬c data set but, by scaling down the argument,
engages the alleged injuries in ways that tie them more easily to legal standing
The Supreme Court™s opinion sides with the petitioners and indicates that the
“widely shared” character of climate-change risks does not prevent Massachusetts
from having an interest in the case™s outcome.27 It concludes the standing analysis:
In sum “ at least according to petitioners™ uncontested af¬davits “ the rise in sea
levels associated with global warming has already harmed and will continue to
harm Massachusetts. The risk of catastrophic harm, though remote, is nevertheless
real. That risk would be reduced to some extent if petitioners received the relief
they seek. We therefore hold that petitioners have standing to challenge the EPA™s
denial of their rulemaking petition.28

Although the Court™s holding on standing narrowly focuses on the interests of state
parties, its approach to them scales down the problem of climate change and its
regulation; this “global” phenomenon can cause harm at a state level and choices at
a federal level in¬‚uence the risks faced by states.
The dissenters, unsurprisingly, side with the respondents. Chief Justice Roberts™s
dissent, for example, explains how, in his view, the multiscalar nature of the problem
defeats standing.
The Court™s sleight-of-hand is in failing to link up the different elements of the
three-part standing test. What must be likely to be redressed is the particular injury
in fact. The injury the Court looks to is the asserted loss of land. The Court contends
that regulating domestic motor vehicle emissions will reduce carbon dioxide in the
atmosphere, and therefore redress Massachusetts™s injury. But even if regulation
does reduce emissions “ to some indeterminate degree, given events elsewhere in
the world “ the Court never explains why that makes it likely that the injury in fact “
the loss of land “ will be redressed.29

In so doing, Chief Justice Roberts articulates his concerns about whether the occur-
rence of emissions around the world (essentially, local emissions taking place at a
global scale) makes the impact of U.S. national-level regulatory behavior less clear
at a subnational scale.
At the core of this battle over standing lies scienti¬c data. Both sides acknowledge
the problem of climate change, but they part ways in how to map the scienti¬c
information, and its uncertainties, onto existing legal structures. As emissions and
their impacts connect to multiple levels of governance, the parties and Court are
Reply, Massachusetts v. EPA, 549 U.S. 497 (No. 05“1120), 2006 WL 3367871, at — 2“— 3 (citations

Massachusetts v. EPA, 549 U.S. 497, 522 (2007).

Id. at 526.

Id. at 546.
Hari M. Osofsky

forced to grapple with how to apply the more simply structured standing doctrine to
this problem.

2.2.2. Substantive Claims
The substantive arguments reveal a similar dynamic of scaling climate change and
regulatory authority over it up and down. For example, the respondents claim that
states cannot implement National Ambient Air Quality Standards (NAAQS) in this
context because their regulatory level fails to match the global level at which the
problem was occurring. The brief of respondent CO2 litigation group argues:
None of these regulatory authorities makes sense if the “air pollutant” to which they
are applied is CO2 or another greenhouse gas being regulated for the purpose of
mitigating potential global climate change. Since the projected effect of greenhouse
gas emissions is a function of changes in the global atmosphere, rather than local
or regional air quality, and it is the aggregate contribution of all greenhouse gas
emissions around the world to global atmospheric greenhouse gas contributions
that is believed by many to cause global climate change, notions of attaining or not
attaining an ambient air quality standard within a state or air quality control region
are inapplicable.30

The theme of scienti¬c uncertainty is intertwined with the claim of scalar mis-
match, as represented in language like “believed by many” in that statement. As
with the standing argument, respondents are portraying climate change as some-
thing occurring at a supranational level and over a long period of time with sub-
stantial de¬cits in current understanding about how anthropogenic greenhouse gas
emissions ¬t into that model.
The petitioners™ argument on this point, in contrast, relies upon the various levels
at which the Clean Air Act provides regulatory authority. They note in their opening
Whatever question exists about the applicability of the NAAQS program to the air
pollutants at issue here cannot excuse the failure to adopt emission standards under
section 202. Section 202 does provide a perfectly feasible mechanism for regulating
emission of these pollutants from motor vehicles: the establishment of the same
sort of limits on these pollutants that EPA has already imposed on pollutants such
as carbon monoxide and hydrocarbons.31

In other words, regulation can work according to the petitioners if one changes
levels “ to the national one “ and type of regulatory approach.
A similar debate among the parties takes place over whether Congress™s speci¬c
action with respect to ozone limits EPA™s ability to regulate prior to a similar type of
action regarding global climate change. The Brief for Respondents AAA argues:

Brief for Respondent CO2 Litigation Group at 20, Massachusetts v. EPA, 549 U.S. 497 (No. 05“1120),

2006 WL 3043971, at — 20 (citation omitted).
Brief for Petitioners, Massachusetts v. EPA, 549 U.S. 497 (No. 05“1120), 2006 WL 2563378, at — 29

(emphasis original).
The Intersection of Scale, Science, and Law in Massachusetts v. EPA 139

Congress has previously dealt with emissions issues relating to non-localized
gases that implicate global environmental concerns. For example, when Congress
addressed stratospheric ozone depletion it used an express delegation under a new
regulatory framework: Title VI of the Clean Air Act. The addition of Title VI to
address global issues re¬‚ects Congress™s views about the regulatory limits of Titles I
and II of the Act.
Much like carbon dioxide, anthropogenic substances that deplete ozone are emitted
around the world and are very long-lived. Their upper-atmosphere ozone depleting
effects “ and the consequences of those effects “ occur on a global scale.32

This approach indicates a presumption that similarities in the scale and time frame of
two problems, as described in the existing scienti¬c literature, means that a Congres-
sional approach to one of them limits regulatory discretion with respect to another.
The petitioners, unsurprisingly, resist such an interpretation of the ozone
legislation. Beyond arguing that the ozone provisions have been used to regulate
“air pollutants associated with climate change,” they note:

EPA cannot seriously maintain that “coordination with the international commu-
nity” is a prerequisite for regulating pollutants that “are emitted around the world
and are very long-lived,” the consequences of which “occur on a global scale.”
Congress directed EPA to regulate ozone-depleting substances themselves without
awaiting such coordination.33

The petitioners thus use the same analogy between ozone and global climate change
to indicate that national-level regulation of multiscalar problems is appropriate.
As with the standing issue, the majority opinion substantively sides with the
petitioners over a vigorous dissent. It holds that Clean Air Act section 202(a)(1), read
together with the Act™s broad de¬nition of “air pollutant,” gives the EPA statutory
authority to regulate greenhouse gas emissions from motor vehicles.34 Moreover, the
Court rejects the EPA™s alternative argument that even if it has statutory authority, it
should not exercise it.35 In so doing, the opinion notes that the agency cannot avoid
its regulatory responsibilities simply by invoking scienti¬c uncertainty. Rather, the
EPA must address the statutory question of whether “suf¬cient information exists to
make an endangerment ¬nding.”36
Although Chief Justice Roberts™s dissent engages only the standing question,
Justice Scalia™s dissent “ joined by the other three dissenting judges “ addresses the
merits. Justice Scalia™s dissent begins by arguing that EPA™s discretion is broader
than the majority holds,37 but then further indicates that the majority is wrong on
Brief for Respondents Alliance of Auto. Mfrs., Engine Mfrs. Ass™n, Nat™l Auto. Dealers Ass™n, Truck

Mfrs. Ass™n, supra note 25, at 38“39 (emphasis and citation omitted); accord Brief for Federal Respon-
dent, supra note 24, at 27“30.
Brief for the Petitioners, Massachusetts v. EPA, 549 U.S. 497 (No. 05“1120), 2006 WL 2563378, at — 27

(citation omitted).
Massachusetts v. EPA, 549 U.S. at 527“32.

Id. at 532“35.

Id. at 534.

Id. at 549“53.
Hari M. Osofsky

its own terms because of the EPA™s statements on scienti¬c uncertainty.38 Its ¬nal
argument addresses scale even more clearly through arguing against the majority™s
broad interpretation of “air pollutant.”39 In particular, the dissent focuses quite
literally on the question of the part of the atmosphere in which “pollution” resides.
Because greenhouse gases build up in the upper atmosphere, the dissent claims that
the EPA™s exclusion of them through focusing on “ambient air at ground level or
near the surface of the earth” is statutorily consistent.40
Together, the actors and arguments in this case demonstrate the judicial chal-
lenge that the collision of scienti¬c uncertainty and multiscalar regulatory problems
poses. Although the parties used particular conceptions of that intersection in their
argument, the briefs and arguments are not explicit about the fact that the U.S.
Supreme Court™s selection of scalar perspective would in¬‚uence how the scienti¬c
data should be viewed. Similarly, choices about the scale of climate change and its
regulation run through the discourse among the majority and dissenting opinions,
but those decisions are often buried in the legal analysis.


The strategic use of science with scale in Massachusetts v. EPA, especially when not
explicit, suggests dangers for the way in which decision making that has supranational
dimensions tends to be dichotomized. In particular, the Balkanization of both scalar
and identity categories allows for distorting efforts at rescaling. This section focuses
on three types of divisions that not only are inaccurate descriptors in a multiscalar,
multiactor framework but also provide the basis for the political games being played
in the case.

3.1. Domestic vs. International
Is Massachusetts v. EPA domestic or international?41 The case clearly was brought
under domestic law and many of the petitioners are domestic governmental actors,
but simply characterizing it as a domestic case does not encompass all of the scales
involved. As was repeatedly expressed by parties on both sides of the litigation, the
case involves a problem and broader law and policy discourse that have international

Id. at 553“55.

Id. at 555“60.

Id. at 560 (internal quotation marks omitted).

For an explication of the traditional Westphalian perspective on international law, see Ian Brownlie,

Principles of Public International Law 287“88 (6th ed. 2003); see also Michael J. Kelly, Pulling
at the Threads of Westphalia: “Involuntary Sovereignty Waiver,” Revolutionary International Legal
Theory or Return to Rule by the Great Powers?, 10 UCLA J. Int™l L. & Foreign Aff. 361 (2005).
For an interesting analysis of the increasingly blurry boundaries between domestic and international,

see Judith Resnik, Law™s Migration: American Exceptionalism, Silent Dialogues, and Federalism™s
Multiple Ports of Entry, 115 Yale L.J. 1564 (2006).
The Intersection of Scale, Science, and Law in Massachusetts v. EPA 141

Neither “domestic” nor “international” conveys fully the multiscalar character of
the case, and a notion that there is an appropriate regulatory level, either domestic
or international, fails to capture the many levels at which climate change must be
regulated. Moreover, the domestic/international distinction privileges the national
level at which the case is taking place by using it as the fulcrum point between
relevant categories. Using this dichotomy as a frame thus plays a distorting role in a
discourse over problems like climate change.43

3.2. Local vs. State vs. Federal
Similarly, if domestic, is Massachusetts v. EPA simply federal?44 The case was
brought in a federal court and involved the regulatory discretion of a federal actor, but
in both its actors and its claims, it involved many other scales and places associated
with them in the United States.45 After all, a good portion of the previously described
debate involved state and local actors, regulatory decisions, and impacts. Moreover,
the distinction “ local vs. state vs. federal “ fails to capture the nuances of the
levels involved or the fact that multiple levels are involved in every aspect of the
This point becomes even clearer if this case is viewed in the broader context
of climate change litigation and policy. For example, as I have discussed in depth
elsewhere,46 California is not only a plaintiff in Massachusetts v. EPA but also a
plaintiff or defendant in several other resolved and pending cases involving climate
change, some of which speci¬cally focus on motor vehicle emissions.47 Moreover,
I explore these issues in more depth and in additional contexts in Hari M. Osofsky, Is Climate Change

“International”?: Litigation™s Diagonal Regulatory Role, 49 Va. J. Int™l L. 585 (2009).
For examples of broader federalism debates in the context of environmental regulations, see Kirsten

H. Engel, State Environmental Standard-Setting: Is There a “Race” and Is It “to the Bottom”?, 48
Hastings L.J. 271 (1997); Daniel C. Esty, Revitalizing Environmental Federalism, 95 Mich. L. Rev.
570 (1996); Joshua D. Sarnoff, The Continuing Imperative (But Only from a National Perspective) for
Federal Environmental Protection, 7 Duke Envtl. L. & Pol™y F. 225 (1997); Peter P. Swire, The Race
to Laxity and the Race to Undesirability: Explaining Failures in Competition Among Jurisdictions in
Environmental Law, 14 Yale J. on Reg. 67 (1996); Henry N. Butler & Jonathan R. Macey, Externalities
and the Matching Principle: The Case for Reallocating Environmental Regulatory Authority, 14 Yale
L. & Pol™y Rev. 23 & 14 Yale J. on Reg. 23 (1996); Richard L. Revesz, Rehabilitating Interstate
Competition: Rethinking the “Race-to-the-Bottom” Rationale for Federal Environmental Regulation,
67 N.Y.U. L. Rev. 1210 (1992); Richard L. Revesz, The Race to the Bottom and Federal Environmental
Regulation: A Response to Critics, 82 Minn. L. Rev. 535 (1997); Richard B. Stewart, Environmental
Regulation and International Competitiveness, 102 Yale L.J. 2039 (1993).
For an interesting analysis of the complexities of regulation at multiple scales, see William W. Buzbee,

Recognizing the Regulatory Commons: A Theory of Regulatory Gaps, 89 Iowa L. Rev. 1 (2003).
See Osofsky, Climate Change as Pluralist Legal Dialogue?, supra note 22.

See, e.g., First Amended Complaint for Declaratory and Injunctive Relief, Cen. Valley Chrysler-Jeep

v. Witherspoon, 456 F. Supp. 2d 1160 (E.D. Cal. 2006), 2004 WL 5001055; Complaint, Connecticut
v. Am. Elec. Power Co., 406 F. Supp. 2d 265 (S.D.N.Y. 2005) (Nos. 04 Civ. 5669(LAP), 04 Civ.
5670(LAP)), available at http://caag.state.ca.us/newsalerts/2004/04-076.pdf; Complaint for Damages
and Declaratory Judgment, State of California v. Gen. Motors Corp., No. C06-05755 MJJ (N.D.
Cal. Sept. 17, 2007), available at http://ag.ca.gov/newsalerts/cms06/06-082_0a.pdf (last visited June
17, 2008); Petition for Review, State of California v. NHTSA, No. 06-2654 SC (N.D. Cal. June 12,
Hari M. Osofsky

California™s representatives in Congress are playing leadership roles in efforts to regu-
late emissions more aggressively,48 and its cities are engaging in both litigation49 and
their own regulatory efforts.50 Divorcing Massachusetts v. EPA from that multiscalar
context decontextualizes the case in ways that portray its signi¬cance inaccurately.

3.3. Public vs. Private
Finally, is this litigation about public or private decision making?51 Because this case
involves the behavior of a federal regulator, one could argue that it is a public law
case. But such a view of the case would suffer from some of the same ¬‚aws as the
other two efforts to categorize it.

2007), available at http://ag.ca.gov/newsalerts/cms06/06-046_0a.pdf (May 2, 2006) (last visited June 17,
2008); Non-Binding Statement of Issues of Petitioners, Coke Oven Envtl. Task Force v. EPA, Case
No. 06-1131 (Sept. 3, 2003).
See, e.g., Press Release, Pelosi and Reid: We Should Work Together to Take America in a New

Direction (Jan. 27, 2007), available at http://www.speaker.gov/newsroom/pressreleases?id=0047 (last
visited June 17, 2008); NPR Talk of the Nation: Is U.S. Energy Independence a Pipe Dream?
(Jan. 24, 2007), available at http://www.npr.org/templates/story/story.php?storyId=7002504 (last vis-
ited June 17, 2008) (“Today Speaker of the House Nancy Pelosi upped the ante and called for
energy independence within 10 years.”); Press Release, Boxer, Bingaman and Lieberman Ask Pres-
ident to Commit to Working with Congress to Fight Global Warming (Nov. 15, 2006), available at
http://boxer.senate.gov/news/releases/record.cfm?id=265906&& (last visited June 17, 2008).
See Complaint for Declaratory and Injunctive Relief (Second Amended), Friends of the Earth,

Inc., v. Watson, No. 02“4106 (N.D. Cal. Sept. 3, 2002), available at http://www.climatelawsuit.org/
documents/Complaint_2Amended_Declr_Inj_Relief.pdf (last visited June 7, 2008).
See ICLEI website, Regional Membership Lists by Country, http://www.iclei.org/index.php?id=

1387&region=NA (last visited June 17, 2008); ICLEI website, CCP: Participants, http://www.iclei.
org/index.php?id=1121 (last visited June 17, 2008); Fact Sheet, California Climate Activities, http://
PDF (last visited June 17, 2008); City of Los Angeles website, Council Actions, http://www.lacity.org/
ead/EADWeb-AQD/council_actions.htm (last visited June 17, 2008); City of Los Angeles website,
Awards Received, http://www.lacity.org/ead/EADWeb-AQD/awards_received.htm (last visited June
17, 2008); Tomas Alex Tizon, Mayor Is on a Mission to Warm U.S. Cities to the Kyoto Protocol,
L.A. Times, Feb. 22, 2005, at A15. For scholarly analysis of the state and local dimensions of climate
change regulation, see Barry G. Rabe, Statehouse and Greenhouse: The Emerging Politics of
American Climate Change Policy (2004); Donald A. Brown, Thinking Globally and Acting Locally:
The Emergence of Global Environmental Problems and the Critical Need to Develop Sustainable
Development Programs at State and Local Levels in the United States, 5 Dick. J. Envtl. L & Pol™y
175 (1996); Ann E. Carlson, Federalism, Preemption, and Greenhouse Gas Emissions, 37 U.C. Davis
L. Rev. 281 (2003); David R. Hodas, State Law Responses to Global Warming: Is It Constitutional to
Think Globally and Act Locally?, 21 Pace Envtl. L. Rev. 53 (2003); Laura Kosloff & Mark Trexler,
State Climate Change Initiatives: Think Locally, Act Globally, 18 Nat. Resources & Env™t 46
(Winter 2004); Robert B. McKinstry, Jr., Laboratories for Local Solutions for Global Problems: State,
Local and Private Leadership in Developing Strategies to Mitigate the Causes and Effects of Climate
Change, 12 Penn St. Envtl. L. Rev. 15 (2004); Hari M. Osofsky, Local Approaches to Transnational
Corporate Responsibility: Mapping the Role of Subnational Climate Change Litigation, 20 Pac.
McGeorge Global Bus. & Dev. L.J. 143 (2007); Barry G. Rabe, North American Federalism and
Climate Change Policy: American State and Canadian Provincial Policy Development, 14 Widener
L.J. 121 (2004); Resnik, supra note 42, at 1643“47.
For a historical perspective on the evolution of the public/private distinction in a local government

context, see Gerald Frug, A Legal History of Cities, in The Legal Geographies Reader 154 (Nicholas
Blomley, David Delany & Richard T. Ford eds., 2001).
The Intersection of Scale, Science, and Law in Massachusetts v. EPA 143

A mix of public and private actors appears on both sides of the lawsuit in Massa-
chusetts v. EPA, and in other instances of climate change litigation. Moreover, some
of the cases over vehicle emissions focus on governmental regulatory decisions, and
others focus on emissions decisions of private actors directly.52 To fail to see these
cases as involving a state-corporate regulatory dynamic would be just as ¬‚awed as
ignoring California™s critical role in the multiscalar dialogue about climate change.
As a wide range of actors operate across scales and play multidimensional roles
in the policy and lawmaking debate, Massachusetts v. EPA becomes one step in a
complex dance. This reality creates a risk that traditional ways of categorizing the
case “ which might focus on it as simply a public environmental regulatory dispute “
will miss critical elements of what it is.


The con¬‚uence of scale, science, and law in Massachusetts v. EPA does not simply
challenge our conventional approaches to categorization but also suggests important
strategies for managing these ever-more-common convergences better. In particu-
lar, the lack of explicit acknowledgment of battles at this intersection has trou-
bling implications for judicial decision making. When petitioners and respondents
are scaling up and scaling down without acknowledging it, judicial discretion is
increased tremendously. The scalar lens that the court chooses may well be outcome-
determinative and may not re¬‚ect a great deal of consciousness about the ways in
which the framing in¬‚uenced the decision.
Unfortunately, efforts to engage scale more directly may not actually ¬x this
problem. If parties spotlight the way in which scale and science are being used,
the court may make its decision more re¬‚ectively. However, the outcome will not
necessarily vary much. Judges may well choose the same scalar framing that they
were initially inclined toward selecting. As Holly Doremus™s work makes clear, even
if scale and science are approached more consciously, the scientizing and scaling of
politics may be unavoidable.
Under such a view, explicit acknowledgment of the ways in which scale, science,
and law interact would simply change the words that advocates and judges use. Both
sides likely will continue to use scale and science in tandem both offensively and
defensively, and the arguments about why a particular framing is appropriate would
simply become more explicit and nuanced. Moreover, the lack of university-level

I have discussed this dynamic in depth in Osofsky, supra note 18, at 1796“97; see also Robert Dufresne,

The Opacity of Oil: Oil Corporations, Internal Violence, and International Law, 36 N.Y.U. J. Int™l L.
& Pol. 331 (2004). For an interesting analysis of corporate responsibility in the context of indigenous
peoples™ land rights, see Lillian Aponte Miranda, The Hybrid State-Corporate Enterprise and Violations
of Indigenous Land Rights: Theorizing Corporate Responsibility and Accountability under International
Law, 11 Lewis & Clark L. Rev. 135 (2007); see also Hari M. Osofsky, Learning from Environmental
Justice: A New Model for International Environmental Rights, 24 Stan. Envtl. L.J. 71, 72“76 (2005).
Hari M. Osofsky

exposure to geography among many elites in the United States53 may cause resistance
to a deeper engagement of the nuances of scale and feed the politicization of its
con¬‚uence with science and law.
Even so, I think that an active effort to engage this intersection more systematically
would be an improvement over the status quo. When assumptions are allowed to
control discourse without conscious acknowledgment, the possibilities for political
manipulation of science are heightened. If courts and litigants engage the con¬‚uence
of law, scale, and science more thoughtfully, the potential for an adequate regulatory
discourse over complex issues like climate change improves. At the very least, an
explicit dialogue about these issues might help lawyers and judges become more
comfortable with the dynamics underlying cases like Massachusetts v. EPA. Given
the growing climate crisis and the Obama administration™s commitment to greater
federal regulatory efforts, which include rapidly responding to the Massachusetts v.
EPA decision, further exploration of these scalar questions is critical.54

Beginning with Harvard in 1948, many U.S. universities eliminated their geography departments or

failed to constitute them. Alexander Murphy, Geography™s Place in Higher Education in the United
States, 31 J. Geographer Higher Ed. 121, 122“23 (2007); William A. Koelsch, Academic Geography,
American Style: An Institutional Perspective, in Geography: Discipline, Profession and Subject
since 1870: An International Survey 245, 270 (Gary S. Dunbar ed., 2001); see also Thomas J.
Wilbanks & Michael Libbee, Avoiding the Demise of Geography in the United States, 31 Prof.
Geographer 1, 1 (1979). A recent study indicates that 93% of U.S. liberal arts institutions lack
geography departments. Mark D. Bjelland, A Place for Geography in the Liberal Arts College?, 56
Prof. Geographer 326, 326 (2004). I have discussed this issue in depth in Hari M. Osofsky, A Law
and Geography Perspective on the New Haven School, 32 Yale J. Int™l L. 421 (2007).
For the Obama administration™s efforts in response to Massachusetts v. EPA, see Proposed Endanger-

ment 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. I am exploring these
issues of scale in more depth in Osofsky, Is Climate Change “International”?, supra note 43; Hari M.
Osofsky, Diagonal Climate Regulation: Implications for the Obama Administration (draft on ¬le with
author); and Hari M. Osofsky, Scales of Law: Rethinking Climate Change, Terrorism, and the Global
Financial Crisis (draft pr´ cis of monograph on ¬le with author).

Biodiversity, Global Warming, and the United States
Endangered Species Act: The Role of Domestic Wildlife Law
in Addressing Greenhouse Gas Emissions

Brendan R. Cummings— and Kassie R. Siegel——


On May 15, 2008, the U.S. Fish and Wildlife Service, an executive branch agency
within the Department of Interior, issued a regulation1 listing2 the polar bear under
the Endangered Species Act (ESA),3 a federal statute designed to prevent the extinc-
tion of imperiled plants and animals, due to global warming4 and the melting of the
bear™s sea-ice habitat. This highly publicized milestone ¬rmly cemented the polar
bear as the iconic example of the devastating impacts of global warming on the
planet™s biodiversity.5 While the polar bear is the most well-known species imperiled
by global warming, and the ¬rst to be listed under the ESA solely due to this factor, it
was not the ¬rst species protected under the statute in which global warming played
a signi¬cant role. Two years earlier, on May 9, 2006, the National Marine Fisheries
Service, declared two species of Caribbean coral Threatened under the ESA.6

— Center for Biological Diversity, P.O. Box 549, Joshua Tree, CA 92252, 760“366-2232, bcummings
—— Center for Biological Diversity, P.O. Box 549, Joshua Tree, CA 92252, 760“366-2232,
Endangered and Threatened Wildlife and Plants, Determination of Threatened Status for the Polar

Bear (Ursus maritimus) throughout Its Range, 73 Fed. Reg. 28,212 (May 15, 2008) (to be codi¬ed at
50 C.F.R. § 17).
A species does not receive the protections of the ESA until, following an administrative rulemaking

process, a regulation is promulgated adding the species to the of¬cial List of Threatened and Endan-
gered Species. 50 C.F.R. § 17.11 (2007) (list of “threatened” and “endangered” species); see also 16
U.S.C. § 1533 (ESA listing process).
16 U.S.C. §§ 1531“1544.

Throughout this chapter we use the phrase “global warming” to refer to anthropogenic climate change

resulting from greenhouse gas emissions, recognizing that the resultant climate impacts to a particular
region or ecosystem are often more complex and may involve other factors (e.g., changes in rainfall,
cloud cover, storm frequency, etc.) in addition to a rise in ambient air temperature.
See, e.g., Jeffrey Kluger, Polar Ice Caps Are Melting Faster Than Ever . . . More and More Land Is Being

Devastated by Drought . . . Rising Waters Are Drowning Low-Lying Communities . . . By Any Measure,
Earth Is at . . . the Tipping Point, Time, Apr. 3, 2006, at cover page (Cover photograph of polar bear).
Endangered and Threatened Species: Final Listing Determinations for Elkhorn Coral and Staghorn

Coral, 71 Fed. Reg. 26,852 (May 9, 2006) (to be codi¬ed at 50 C.F.R. § 223).

Brendan R. Cummings and Kassie R. Siegel

The ESA has been declared by the U.S. Supreme Court to be “the most compre-
hensive legislation for the preservation of endangered species ever enacted by any
nation.”7 The statute is widely considered to be one of the strongest environmental
laws in the United States, and hence one of the most controversial.8 The listing
under the ESA of species threatened by global warming raises the possibility of
applying this law, which “admits of no exception,”9 and which affords endangered
species “the highest of priorities,”10 to the seemingly intractable issue of reducing
U.S. greenhouse gas emissions.
In this chapter we place the listings of the corals and polar bear in context. We
begin by providing an overview of the ESA, including its overarching objectives
and key provisions. We then discuss how the ESA should operate to protect species
imperiled by global warming and create an obligation on U.S. federal agencies
and corporations to reduce greenhouse gas emissions. We use the examples of
coral species and the polar bear to explore the possibilities and limitations of using
domestic wildlife law such as the ESA to bring the subject of global warming into
the courtroom and address otherwise unregulated greenhouse gas emissions.


1.1. The Endangered Species Act: Overview
In the seminal ESA case, Tennessee Valley Authority v. Hill (TVA),11 the Supreme
Court held that the ESA™s unequivocal mandate that federal agencies “insure” that
their actions do not “jeopardize” any species protected by the statute, meant that a
multimillion-dollar dam project already near completion could not proceed because
its completion threatened the existence of the snail darter, a small endemic ¬sh of
no known economic value.12 In so doing, the Supreme Court elevated a little-known
statute that had passed Congress with near unanimity into one of the most powerful
and controversial environmental statutes in the United States. In the three decades
since TVA was decided, courts enforcing the ESA have halted such activities as
logging, to protect threatened owls;13 commercial ¬shing, to protect Hawaiian monk
seals;14 military activities, to protect endangered whales;15 oil and gas development,

Tenn. Valley Auth. v. Hill (TVA), 437 U.S. 153, 180 (1978).

The Endangered Species Act at Thirty: Renewing the Conservation Commitment (Dale D.

Goble, J. Michael Scott & Frank W. Davis eds.) (2006).
TVA, 437 U.S. at 173.

Id. at 174.


Id. at 171“93.

Silver v. Babbitt, 924 F. Supp. 972, 976 (D. Ariz. 1995); Lane County Audubon Soc™y v. Jamison, 958

F.2d 290, 295 (9th Cir. 1992).
Greenpeace Found. v. Mineta, 122 F. Supp. 2d 1123, 1138 (D. Haw. 2000).

Natural Res. Def. Council v. Evans, 279 F. Supp. 2d 1129 (N.D. Cal. 2003).
Biodiversity, Global Warming, and the United States 147

to protect grizzly bears;16 off-road vehicles, to protect imperiled plants;17 pesticide
authorizations, to protect imperiled salmon;18 and numerous other habitat-damaging
activities that threatened a particular protected species. In granting such injunctive
relief, courts have repeatedly found that “[g]iven a substantial procedural violation
of the ESA in connection with a federal project, the remedy must be an injunction
of the project pending compliance with the ESA.”19 Regardless of the economic
consequences of halting a given project, protection of the species must receive
The two primary mechanisms by which the ESA protects listed species are con-
tained in sections 7 and 9 of the statute. Section 7 directs all federal agencies
to “insure through consultation with the Secretary”21 that all actions authorized,
funded, or carried out by such agencies are “not likely to jeopardize the continued
existence” or “result in the destruction or adverse modi¬cation” of “critical habi-
tat” of any listed species.22 In contrast to the National Environmental Policy Act
(NEPA)23 “ which requires only informed agency decision-making and not a par-
ticular result,24 and is therefore strictly procedural “ section 7 of the ESA contains
both procedural (“through consultation”) and substantive (“insure” the action does
not “jeopardize”) mandates for federal agencies. As such, the statute, and litigation
under it, can force analysis through the consultation process of the environmental
effects of a given project and, if the project is determined to jeopardize a listed
species or adversely modify its critical habitat, trigger modi¬cation or cancellation
of the project so as to avoid such impacts.
While section 7 applies only to the actions of federal agencies, the prohibitions
of section 925 apply to “any person,” including federal, state, and local agencies and

Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988).

Ctr. for Biological Diversity v. Bureau of Land Mgmt., 422 F. Supp. 2d 1115 (N.D. Cal. 2006).

Washington Toxics Coal. v. Envtl. Prot. Agency, 413 F.3d 1024 (9th Cir. 2005).

Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir. 1985).

Sierra Club v. Marsh, 816 F.2d 1376, 1387 (9th Cir. 1987).

The “Secretary” refers to either the Secretary of Interior or the Secretary of Commerce depending on

the species at issue. 16 U.S.C. § 1532(15). The Secretaries have delegated authority to the U.S. Fish and
Wildlife Service (“FWS”) and National Marine Fisheries Service (“NMFS”), respectively. 50 C.F.R.
§ 402.01(b). FWS has authority over all terrestrial species, while NMFS manages most marine species.
However, several marine mammals, including the polar bear, are managed by FWS.
16 U.S.C. § 1536(a)(2). To “jeopardize” a species is de¬ned by regulation as “to engage in an action

that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both
the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or
distribution of that species.” 50 C.F.R. § 402.02. A similar regulatory de¬nition of “destroy or adversely
modify critical habitat” has been struck down by several courts as not properly encompassing recovery
of the species. See, e.g., Gifford Pinchot Task Force v. U.S. Fish and Wildlife Serv., 378 F.3d 1059,
1069“71 (9th Cir. 2004). While no replacement regulatory de¬nition has yet been promulgated, courts
have made clear that an agency action in critical habitat cannot compromise the species™ recovery and
still rationally be deemed to have not “adversely modi¬ed” that habitat. See, e.g., Ctr. for Biological
Diversity v. Bureau of Land Mgmt., 422 F. Supp. 2d 1115, 1136 (N.D. Cal. 2006).
42 U.S.C. §§ 4321“4347.

Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989).

16 U.S.C. § 1538.
Brendan R. Cummings and Kassie R. Siegel

entities, individuals, and corporations.26 Section 9 prohibits, inter alia, the “taking”
of any endangered species in the United States or upon the high seas.27 Regulations
promulgated pursuant to section 4(d) apply most of the take prohibitions applicable
to endangered species to threatened species as well.28 “Take” means “to harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct.”29 “Harass” is further de¬ned as any “act or omission
which creates the likelihood of injury to wildlife by annoying it to such an extent
as to signi¬cantly disrupt normal behavior patterns which include, but are not
limited to, breeding, feeding or sheltering.”30 “Harm” includes “signi¬cant habitat
modi¬cation or degradation where it . . . injures wildlife by signi¬cantly impairing
essential behavioral patterns, including breeding, feeding or sheltering.”31
The ESA™s legislative history supports “the broadest possible” reading of “take,”32
and courts have consequently found violations of section 9 from activities ranging
from direct intentional killing of a listed species,33 to harm resulting from habitat
degradation,34 to government authorizations of activities that inevitably would result
in prohibited take, such as pesticide use35 or ¬shing.36 In perhaps the most expansive
reading of section 9™s reach to date, one appellate court found that “inadequate
regulation” of light pollution could make a local government liable for the take of
listed sea turtles.37
In addition to the prohibitions against jeopardy and take provided by sections
7 and 9, the ESA mandates an array of af¬rmative conservation actions for listed
species. These include the designation of “critical habitat,”38 the development and
implementation of recovery plans,39 the acquisition of land,40 and the release of
16 U.S.C. § 1532(13) (de¬nition of “person”). The statute contains an exception for hunting by residents

of Alaskan native villages. 16 U.S.C. § 1539(e).
16 U.S.C. § 1538. In contrast to Section 7, which should apply to any federal agency action, no matter

where it occurs, Section 9 is explicitly limited in its geographical scope to the United States and high
50 C.F.R. § 17.31(a) (FWS rule applying Section 9 prohibitions to all Threatened species); 50 C.F.R.

§§ 17.40“17.48 (FWS rules modifying take prohibitions for certain species); 50 C.F.R. § 223 (NMFS
rules applying take prohibitions to Threatened species on a species by species basis). As discussed in
Section 1.4.3, infra, the lack of a blanket 4(d) rule applying Section 9 prohibitions to all Threatened
species under NMFS™s jurisdiction has signi¬cant consequences for the two listed coral species, which,
as of this writing, are subject of no speci¬c 4(d) rule, and hence receive none of the protections against
“take” provided by Section 9.
16 U.S.C. § 1532(19).

50 C.F.R. § 17.3 (FWS de¬nition of “harass”). NMFS has no corresponding de¬nition of “harass.”

50 C.F.R. § 17.3 (FWS de¬nition of “harm”); see also 50 C.F.R. § 222.102 (NMFS™s near-identical

de¬nition of “harm”).
Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 704“05 (1995).

United States v. Billie, 667 F. Supp. 1485 (S.D. Fla. 1987).

Palila v. Haw. Dep™t of Land & Natural Res., 852 F.2d 1106 (9th Cir. 1988).

Defenders of Wildlife v. Envtl. Prot. Agency, 420 F.3d 946 (9th Cir. 2005).

Strahan v. Coxe, 127 F.3d 155 (1st Cir. 1997).

Loggerhead Turtle v. County of Volusia, 120 F. Supp. 2d 1005 (M.D. Fla. 2000).

16 U.S.C. § 1533(a)(3).

16 U.S.C. § 1533(f ).

16 U.S.C. § 1534.
Biodiversity, Global Warming, and the United States 149

federal funding for domestic41 and international42 conservation programs. The ESA
contains a “citizen suit” provision allowing interested parties, such as nongovern-
mental organizations (NGOs), to bring suit against both private and government
entities to enjoin violations of the statute.43
However, no matter how imperiled a species might be, none of the protections
of the ESA apply to it unless it is of¬cially listed, via regulation, as Threatened
or Endangered under the statute. A species is “Endangered” if it “is in danger
of extinction throughout all or a signi¬cant portion of its range.”44 A species is
“Threatened” if it is “likely to become an endangered species within the foreseeable
The listing process for a given species may be initiated either by FWS or NMFS
on the agency™s own volition or by petition from an interested party.46 Under either
scenario, once the listing process is initiated, strict timelines apply.47 As discussed in
more detail here, these timelines have played a crucial role in ESA actions related
to climate change. All listing decisions are to be made “solely on the basis of the
best scienti¬c data available.”48 The failure to list a petitioned species is subject to
judicial review.49

1.2. Case Study I: Elkhorn and Staghorn Corals

1.2.1. Global Warming and Coral Reefs
Coral reefs are among the ¬rst ecosystems to show the signi¬cant adverse impacts
of global warming.50 An estimated 30 percent of coral reefs globally are already
severely degraded and 60 percent may be lost by 2030.51 The primary cause of
coral reef degradation on a global scale is bleaching, the expulsion of symbiotic
algal zooxanthellae from coral triggered, inter alia, by elevated sea temperatures.52

16 U.S.C. § 1535(d).

16 U.S.C. § 1537(a).

16 U.S.C. § 1540(g).

16 U.S.C. § 1532(6).

16 U.S.C. § 1532(20). The ESA does not de¬ne “foreseeable future.” As discussed infra, interpretation

of this phrase is likely to be key to any listing decision (and litigation over that decision) based upon
the projected impacts of global warming on the species.
In practice, virtually all listing actions since the mid-1980s have been initiated by petition rather than

independent agency initiative. See D. Noah Greenwald, Kieran F. Suckling & Martin F. Taylor,
The Listing Record, in The Endangered Species Act at Thirty: Renewing the Conservation
Commitment (Dale D. Goble, J. Michael Scott & Frank W. Davis eds., 2006).
16 U.S.C. § 1533(b).

16 U.S.C. § 1533(b)(1)(A).

16 U.S.C. § 1533(b)(3)(C)(ii).

Ove Hoegh-Guldberg, Climate Change, Coral Bleaching and the Future of the World™s Coral Reefs,

50 Marine & Freshwater Res. 839 (1999).
Terence P. Hughes et al., Climate Change, Human Impacts, and the Resilience of Coral Reefs, 301

Sci. 929 (2003).
Hoegh-Guldberg, supra note 50, at 861.
Brendan R. Cummings and Kassie R. Siegel

In 1998, which at the time was the warmest year on record, bleaching occurred
in every ocean, ultimately resulting in the death of 10 to 16 percent of the world™s
living coral.53 In 2005, which eclipsed 1998 as the warmest year on record,54 a major
bleaching event swept through the Caribbean, bleaching over 90 percent of live
coral in some areas and resulting in the ultimate death of about 20 percent of living
coral regionwide.55 Before this unprecedented single-year die-off even began, the
Caribbean contained the world™s most degraded coral reefs, having already lost as
much as 80 percent of live coral over the preceding thirty years.56 It will not take
many more episodes like the 2005 bleaching event before living coral reefs in the
Caribbean disappear entirely.57
While bleaching is perhaps the most widespread and worrisome impact of global
warming on coral reefs, it is far from being the only such impact. As the authors of
an authoritative review in 2003 put it:

The link between increased greenhouse gases, climate change, and regional-scale
bleaching of corals, considered dubious by many reef researchers only 10 to 20
years ago, is now incontrovertible. Moreover, future changes in ocean chemistry
due to higher atmospheric carbon dioxide may cause weakening of coral skeletons
and reduce the accretion of reefs, especially at higher latitudes. The frequency
and intensity of hurricanes (tropical cyclones, typhoons) may also increase in some
regions, leading to a shorter time for recovery between recurrences. The most
pressing impact of climate change, however, is episodes of coral bleaching and
disease that have already increased greatly in frequency and magnitude over the
past 30 years.58

The regional or global loss of coral reefs will have a devastating impact on global
biodiversity. Coral reefs are the oldest and most diverse ecological communities
on Earth59 ; they occupy less than 0.1 percent of the area of the world™s oceans, yet
harbor about a third of all described ocean species.60 Moreover, most coral reef
species remain undescribed, with estimates of an additional 1 million or more reef-
dependent species yet to be cataloged.61 The impending loss of coral reef ecosystems,
if allowed to proceed, will perhaps be the greatest anthropogenic extinction event
in history.

Ove Hoegh-Guldberg, Marine Ecosystems and Climate Change, in Climate Change & Biodiversity

256, 264 (Thomas E. Lovejoy & Lee Hannah eds., 2005).
James Hansen et al., Global Temperature Change, 103 Proc. Nat™l Acad. Sci. 14288, 14290 (2006).

Federal Response to the 2005 Caribbean Bleaching Event, available at http://coralreefwatch.

noaa.gov/caribbean2005/docs/2005_bleaching_federal_response.pdf (last visited Dec. 1, 2006).
Toby A. Gardner, Isabelle M. Cot´ , Jennifer A. Gill, Alastair Grant & Andrew R. Watkinson, Long-

Term Region-Wide Declines in Caribbean Corals, 301 Sci. 958 (2003).
Hoegh-Guldberg, supra note 53, at 264.

Hughes, supra note 51, at 929.

James W. Porter & Jennifer I. Tougas, Reef Ecosystems: Threats to Their Biodiversity, in 5 Encyclo-

pedia of Biodiversity 73, 74 (Simon Asher Levin ed., 2001).
Id. at 74“75.

Id. at 75“77.
Biodiversity, Global Warming, and the United States 151

1.2.2. The Decline of Elkhorn and Staghorn Corals
Elkhorn coral (Acropora palmata) and staghorn coral (Acropora cervicornis) were, for
at least the past 3,000 years, the dominant reef-building corals in the Caribbean.62
Virtually every reef from the Florida Keys across the Caribbean to the Mesoameri-
can Reef in Belize was largely comprised of one or the other (or both) of these for-
merly ubiquitous species.63 However, over the past thirty years the two species have
declined by upwards of 90 percent.64 The primary drivers of the decline have been
disease and temperature-induced bleaching.65 Additionally, the period of decline
coincided with an ongoing period of increased hurricane activity, with intense storms
destroying entire reef tracts in certain areas.66 The cumulative result was that by the
beginning of the twenty-¬rst century, elkhorn and staghorn corals had been reduced
to a scattering of mostly small colonies amid a large sea of coral rubble.67
The factors causing the decline of elkhorn and staghorn coral either are directly
correlated with global warming or represent examples of events likely to be more
prevalent and more intense in a warming climate.68 And while the link between coral
bleaching and global warming is relatively intuitive, even the outbreaks of coral dis-
ease that ravaged the two species have been linked to elevated water temperatures.69
Similarly, scienti¬c evidence indicates that global warming increases the probability
of severe weather events like the series of intense hurricanes that have so impacted
Caribbean reefs in recent decades.70 Finally, there is clear evidence that the record-
setting ocean temperatures of 1998 and 2005 that triggered widespread bleaching
and mortality are the product of global warming.71
In sum, over the course of less than three decades, elkhorn and staghorn corals
went from being the most visible and ecologically most important corals of Caribbean
reefs, a position they have held for at least 3,000 years, to species whose continued
existence beyond the next few decades is now in serious doubt. Global warming
helped bring them to this state and, absent signi¬cant reductions in greenhouse gas
emissions, is poised to be the ¬nal nail in their cof¬n.

Terence P. Hughes, Catastrophes, Phase Shifts and Large-Scale Degradation of a Caribbean Coral

Reef, 265 Sci. 1547 (1994).



William F. Precht & Richard B. Aronson, Climate Flickers and Range Shifts of Reef Corals, 2 Fron-

tiers Ecology & Env™t 307 (2004).
On top of these regionwide factors, the two corals virtually disappeared in the face of a diverse array

of threats, the primary ones being over¬shing and nutrient runoff, both of which promote algal
overgrowth, which smothers living coral. See Hughes, supra note 51, at 861.

C. Drew Harvell et al., Climate Warming and Disease Risks for Terrestrial and Marine Biota, 296 Sci.

2158, 2161 (2002).
B. D. Santer et al., Forced and Unforced Ocean Temperature Changes in Atlantic and Paci¬c Tropical

Cyclogenesis Regions, 103 Proc. Nat™l Acad. Sci. 13905 (2006).
Hansen, supra note 54, at 14290.
Brendan R. Cummings and Kassie R. Siegel

1.2.3. From Petition to Listing
On March 4, 2004, a U.S. NGO, the Center for Biological Diversity, submitted a
petition to NMFS seeking listing of elkhorn and staghorn corals under the ESA.72
The 111-page petition detailed the decline of the species, projected future threats, and
argued that the corals were suf¬ciently imperiled to warrant the protections of the
ESA.73 Re¬‚ective of the scienti¬c literature documenting the species™ decline, the
petition discussed the various factors negatively affecting the corals, with a particular
focus on the current and projected impacts of global warming.74
On June 23, 2004, NMFS made a positive ninety-day ¬nding, concluding that the
petition had presented “substantial information indicating the petitioned actions may
be warranted” and announced the initiation of a formal status review as required
by section 4(b)(3)(A) of the ESA.75 On May 9, 2005, following a public comment
period and the completion of a status review, NMFS issued a proposed regulation to
list the two species as Threatened.76 A year later, on May 9, 2006, NMFS ¬nalized
the regulations, adding the two species to the of¬cial list of Threatened species.77
While the ¬nal listing of the corals came three months after the statutory deadline,
the listing went through the regulatory process with remarkably little opposition or
more typical longer delays.78 Of the more than 1,300 comments submitted by sci-
entists and members of the public during the rulemaking process, not a single
comment opposed the listing.79 And while the listing process explicitly implicated


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