Climate Change Litigation and Dilemmas of Transnational Regulatory Governance

It has been a pleasure blogging here for the past couple of weeks. Thank you again to the Opinio Juris contributors for including me in this important dialogue over international legal issues. I’m also delighted to have the opportunity to overlap for a post with guest blogger Janet Levit.

For my final post, I’d like to highlight two examples of pending climate change litigation that involve complex interactions among multiple actors at many scales of governance. In my view, they involve not only compelling equity issues, but also important questions about what transnational regulatory governance should look like. One of the cases will be heard by the U.S. Supreme Court on November 29, 2006, and the other is pending before the Inter-American Commission on Human Rights. These are both cases I’m engaging in my ongoing scholarship on climate change litigation, and I’d be happy to dialogue in more depth about them beyond this guest blogging stint.

Massachusetts v. EPA challenges the U.S. Environmental Protection Agency’s denial of a petition requesting that it regulate motor vehicles’ greenhouse gas emissions under the Clean Air Act. This case represents the first time the Court has heard a challenge to another branch of federal government’s policies on climate change, and arguably will be the most important environmental argument heard this term.

In traditional legal terms, this case is a purely domestic one, and so not a relevant topic for this blog. The petitioners include twelve states, three cities, a U.S. territory, and thirteen nongovernmental organizations, the respondents are the EPA, ten other states, and nineteen industry and utility groups, and the lawsuit has been brought under the Administrative Procedure Act and Clean Air Act.

But the subject of this case is global climate change, a problem that involves controversial U.S. foreign policy decisions over treaty obligations. The case occurs against a policy backdrop I’ve mentioned in previous blogs in which various branches of federal, state, and local government are grappling with this problem. California’s landmark legislation and participation in these cases, as well as the growing involvement of localities in issues of climate change, reinforces the complex issues of scale and place raised in Janet Levit’s first post. How should this case be fit into how we view international law?

This question does not simply arise in the domestic cases. In December, 2005, Sheila Watt-Cloutier filed a petition on behalf of the Inuit with the Inter-American Commission on Human Rights. The petition claimed that U.S. climate change policy created impacts on them that violated their rights. Her statement on the significance of the petition included the following:

A declaration from the commission may not enforceable, but it has great moral value…. Protecting human rights is ground occupied by both reasonable governments and civil society, including Inuit and other Indigenous peoples. This petition is our means of inviting the United States to talk with us and to put this global issue into a broader human and human rights context. Our intent is to encourage and to inform.

This petition poses a variety of challenges to traditional legal distinctions. For example, it presents environmental rights claims in which the victims live far from most of the actors causing their harm. But the most interesting aspect of the petition may well be Watt-Cloutier’s acknowledgment of its limited formal utility and framing of it as part of a broader conversation. Given that, how should we locate this case in the law and policy debate over climate change?

A number of scholars, including Janet Levit, have explored the nature of transnational regulatory governance, as a result, and considered the question of how pluralist our conception of international law should be. In my view, climate change litigation provides an interesting jumping off point for engaging these issues, and the “multiple ports of entry” described in Judith Resnik’s recent article through which domestic and international law formally and informally interact.