Hari M. Osofsky

The continuing importance of climate change litigation

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.

The Role of Climate Change Litigation in Establishing the Scale of Energy Regulation

This article argues that U.S. litigation over climate change shapes the scale at which energy regulation takes place and, in so doing, influences the sustainability of energy production and consumption. The resolution of these disputes and the resulting regulatory changes impact the scale of energy regulation because most of the cases focus on emissions from transportation or power plants, industries deeply involved in the production and consumption of energy. As these legal actions have grown from a few cases widely regarded as boundary-pushing oddities to over one hundred lawsuits under many different legal theories, their collective outcome plays an important role in the ways smaller scale regulatory action takes place. In so doing, these actions “rescale” energy regulation by mandating or preventing smaller scale regulatory action—local, state, or national—as part of overall approaches to addressing climate change. This article contributes to both the geography and legal literatures by considering how climate change litigation in the United States helps to address the multiscalar challenges facing the energy industry, and the ways in which fixed judicial structures provide a space for needed fluidity in the construction of multilevel approaches to sustainable energy production and consumption. In so doing, it connects the legal dynamic federalism scholarship with the geography literature on scale to demonstrate the constructive role that climate change litigation plays in crafting multilevel energy regulation and involving a wide range of multiscalar interests.

A Rights Turn in Climate Change Litigation

In 2015, a Pakistani court in the case of Leghari v. Federation of Pakistan made history by accepting arguments that governmental failures to address climate change adequately violated petitioners’ rights. This case forms part of an emerging body of pending or decided climate change-related lawsuits that incorporate rights-based arguments in several countries, including the Netherlands, the Philippines, Austria, South Africa, and the United States (US). These decisions align with efforts to recognize the human rights dimensions of climate change, which received important endorsement in the Paris Agreement. The decisions also represent a significant milestone in climate change litigation. Although there have been hundreds of climate-based cases around the world over the past two decades – especially in the US – past and much of the ongoing litigation focuses primarily on statutory interpretation avenues. Previous efforts to bring human rights cases have also failed to achieve formal success. The new cases demonstrate an increasing trend for petitioners to employ rights claims in climate change lawsuits, as well as a growing receptivity of courts to this framing. This ‘rights turn’ could serve as a model or inspiration for rights-based litigation in other jurisdictions, especially those with similarly structured law and court access.

Climate Change Litigation's Regulatory Pathways: A Comparative Analysis of the United States and Australia

This article provides a critical next step in scholarship on climate change litigations regulatory role. It creates a model for understanding the direct and indirect regulatory roles of this litigation. It then applies this model to the United States and Australia, two key jurisdictions for climate change lawsuits, in order to explore the regulatory pathways that this litigation has taken, is taking, and likely will take. This analysis helps to illuminate the ways in which litigation influences regulation and forms part of climate change governance.

Climate change litigation's regulatory pathways

This article provides a critical next step in scholarship on climate change litigations regulatory role. It creates a model for understanding the direct and indirect regulatory roles of this litigation. It then applies this model to the United States and Australia, two key jurisdictions for climate change lawsuits, in order to explore the regulatory pathways that this litigation has taken, is taking, and likely will take. This analysis helps to illuminate the ways in which litigation influences regulation and forms part of climate change governance.

Adjudicating Climate Change: Overview: The Exigencies That Drive Potential Causes of Action for Climate Change

Over the course of the last few years, climate change litigation has been transformed from a creative lawyering strategy to a major force in transnational regulatory governance of greenhouse gas emissions. This book traces that journey and looks ahead to the future by considering a range of lawsuits and petitions filed in state, national, and international tribunals, as well as some potential causes of action. These actions cover an immense legal terrain but have in common their concern with more effective regulation of greenhouse gas emissions. This introductory chapter frames the contributions in this book. It first provides an overview of climate change science, including both the current and the projected global impacts of climate change; second, it assesses current institutional responses to climate change and why they have been and likely will continue to be wholly inadequate to confront the looming threat of climate change in this century and beyond; third, it examines current efforts to open a new front to address climate change and climate change litigation; and finally, it provides a synopsis of the chapters that follow.

Regional Energy Governance and U.S. Carbon Emissions

The U.S. Environmental Protection Agency’s final rule that limits carbon dioxide emissions from existing power plants — the Clean Power Plan — is an environmental regulation that powerfully influences energy law and forms a key part of the U.S. plan to meet its voluntary international commitments under the December 2015 Paris Agreement on climate change. Even if portions of the Plan are ultimately struck down, almost any viable pathway to lower carbon emissions will require greater integration of these two areas of law to address the large percentage of U.S. emissions from the energy sector. This integration produces both challenges and opportunities for governance. The Clean Power Plan (or similar regulations likely to be promulgated under the Clean Air Act in the future) must rely on an environmental-law cooperative federalist implementation structure in which states implement federal standards. However, electricity markets and governance are highly regional, and numerous studies show the economic benefits of interstate coordination, whether through governmental cooperation or trading among utilities. The project of energy-environment integration will benefit from existing regional energy-based institutions that already integrate electricity sources from different states. But it will require enhancement of existing regional approaches to generation capacity planning and transmission expansion, the interconnection of generators to lines, and energy markets. It also will require more interstate, state-regional-federal, and interregional cooperation.This Article systematically explores the opportunities for implementation of U.S. carbon emissions regulation presented by regional energy governance, using the Clean Power Plan as a case study. The Plan is not only the most ambitious effort at energy-environment integration to date, but also illustrates the need for enhanced regional governance. The Plan’s many options for interstate coordination — from multistate plans to utility trading — do not ensure alignment with existing regional markets because coordination will be difficult for states that choose different approaches to emissions accounting. The Article provides a timely analysis of (1) why enhanced regional governance of carbon emissions is needed, (2) what barriers it faces and opportunities it presents, and (3) how states could build from existing regional approaches in other contexts to create new mechanisms for cooperation and enhance regional governance structures. Addressing these governance issues effectively in the transition to a lower carbon economy will reduce the implementation costs of carbon emissions reduction and improve the reliability of the electricity system.