16 Apr From Hierarchy to Diagonality to Panarchy: A Comment on Hari Osofsky’s Is Climate Change “International”?
[J.B. Ruhl is Matthews & Hawkins Professor of Property at Florida State University College of Law]
By asking us to think diagonally about institutional frameworks for formulating and implementing responses to climate change, Professor Hari Osofsky challenges law and policy to confront the reality of climate change as a hugely complex multi-scalar phenomenon. The conventional wisdom has been that climate change, given its global dimensions, is inherently an international problem demanding institutional responses at the international scale. True enough, most everyone agrees, but many also argue this should not be to the exclusion of national and subnational responses. For the United States, once the discussion drifts down to those levels the federalism debate opens in full gear. A mountain of legal scholarship has risen from the collision between the pro-federal, pro-state, and pro-local climate change policy camps. Declining to join this Goldilocks search for the “just right” balance, Osofsky joins those, including myself, who see a need for an interconnected multi-scalar policy response that is equally as complex as the climate change problem itself. What sets her apart from work advancing this perspective is her use of climate change litigation as a lens through which to observe the forces pushing toward a rescaling of climate change law and policy from the bottom up and top down. Through her case studies illustrating contested rescalings in both directions, Osofsy paints a picture of an emerging institutional network that cuts across governance scales both vertically (to connect federal, state, and local actors) and horizontally (to connect actors at each scale)—thus diagonally.
I find much appealing about Osofsky’s portrayal of climate change litigation’s diagonal rescaling function, no doubt due in large measure to our common bond of being formally trained in geography. Geographers think about scales—all scales—and climate change law must as well. In this respect, while I applaud Osofsky’s diagonal thinking, I wonder whether it goes far enough. In a forthcoming California Law Review article I co-authored with Professor Jim Salzman, Massive Problems in the Administrative State, we argue that the kind of networked multi-agency, multi-scale institutional arrangements Osofsky envisions are necessary for effective responses to climate change and other massively-scaled problems confronting the administrative state. Yes, these transgovernmental networks are messy, redundant, unwieldy, and decentralized, yet these are the very attributes that give them adaptive staying power compared to the rigid institutional frameworks we conventionally throw at such problems. They also are less hierarchical than even Osofsky’s diagonality suggests—they are panarchical, depending far more for their work on the relationships and resources of people in the networks than on the formal legal status of the institutions employing them.
Most legal scholarship on institutional design for climate change policy is stuck in the conventional two-dimensional horizontal and vertical conceptualization of federalism. But when we say climate change is multi-scalar, we don’t mean it behaves according to some multi-tiered hierarchy of physical events; rather, we mean that it plays out through a complex network of feedback loops, nonlinear causal chains, and emergent properties that interconnect over different temporal, spatial, and cultural scales, but not that any one scale is running the show. Our governance response to such a phenomenon can be no less complex. Perhaps, therefore, the litigation-driven bottom up and top down rescaling Osofsky identifies as contributing to growing diagonality in climate change policy is a first step toward breaking away from governance hierarchy and moving toward complex transgovernmental networks for formulating and implementing climate change policy. With Osofsky’s lead, then, we should all start thinking diagonally.