Osofsky: The Continuing Importance of Climate Change Litigation

Hari M. Osofsky (Washington & Lee Univ. - Law) has posted The Continuing Importance of Climate Change Litigation. Here's the abstract:

Over the course of the last several years, the number of cases around the world raising the problem of climate change has increased dramatically, as has their mainstream acceptance. The impact of this litigation has arguably been greatest in the United States. Most notably, the U.S. Supreme Court’s decision in Massachusetts v. EPA – together with a cultural shift symbolized by Al Gore and the Intergovernmental Panel on Climate Change (IPCC) winning the Nobel Peace Prize – 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. The continuing relevance of climate change litigation in the United States was reinforced in fall 2009, as two circuit courts allowed public nuisance suits to move forward against major corporate emitters and implementation of Massachusetts v. EPA bolstered the U.S. negotiating position in Copenhagen against a backdrop of continued uncertainty surrounding climate change legislation.

Although U.S. courts and administrative tribunals remain major loci for these cases, they are not alone. Numerous cases have been filed in local, state, national, and international tribunals around the world based on a wide range of legal theories. What these cases share in common is their application of law to the problem of climate change, and their engagement of the complex public-private regulatory dynamics at the core of transnational climate change regulation. As individuals, corporations, nongovernmental organizations, and governments serve as plaintiffs and defendants in these cases, courts have become a critical forum in which the future of greenhouse gas emissions regulation and responsibility are debated.

This Essay considers the evolving importance of climate change litigation as part of transnational efforts to address this problem. Part II of the Essay examines the impacts of this litigation thus far, and maps its ongoing role. It focuses in particular on the litigation’s effect on governmental regulatory decisionmaking, corporate behavior, and public understanding of the problem. Part III of this Essay builds upon this examination by exploring the way in climate litigation influences particular actors at different levels of government over time. It argues that climate change litigation provides a valuable complement to treaty, legislative, and executive action because it fosters needed interaction across levels of government and different time periods. Part IV delves deeper into these scalar dynamics through a diagonal federalism approach, which focuses on the disputes’ simultaneous vertical and horizontal elements. It applies a taxonomy of diagonal regulation to two examples of climate change litigation stemming from the U.S. Clean Air Act, and considers the implications of that analysis for understanding the cases’ regulatory role. The Essay concludes by reiterating that the cross-cutting nature of climate change makes this litigation continue to be an important mechanism for spurring and fine-tuning governmental and corporate efforts.