Have we always been diagonal? A response to Osofsky’s “Is Climate Change ‘International’?”

by Nathan Sayre

[Nathan Sayre is Assistant Professor in the Department of Geography at the University of California at Berkeley]

I join J.B. Ruhl in applauding Hari Osofsky’s effort to bring geographical and legal scholarship into a constructive dialogue to address climate change. Her analysis draws important empirical and theoretical lessons from two case studies by illuminating the complex role of litigation in driving processes of regulatory rescaling—a critical role given the unprecedented and urgent challenges that global warming poses to existing legal and institutional frameworks. To meet these challenges, society—at every level—needs not only new laws and regulations, not only new approaches to governance, but also new ways of thinking about society and the environment altogether. Professor Osofsky’s work contributes valuably to this endeavor.

I would also concur with Ruhl’s suggestion, however, that we should take Osofsky’s analysis and conclusions still further, in at least two additional directions. The first would ask whether the intrinsically diagonal character of environmental regulation—and perhaps regulation as a whole—is a recent phenomenon, linked to climate change, or if, instead, it has always been there. In other words, might we fruitfully use Osofsky’s conceptual framework to improve our understanding of historical contests over the environment? (And environment, here, should be construed broadly to encompass urban and rural, human and wild, built and natural environments.) This is not merely a historiographical issue, moreover, because the legal and regulatory landscapes that climate change is rescaling are themselves historical products of prior processes; in other words, to understand current rescaling we must also understand how the existing scales came into being in the first place.

Consider the US federal government, for example, which sits in the middle of many discussions of climate change regulation—a “fulcrum” between international treaties and state and local laws. Its preeminent role in environmental regulations in this country derives from landmark legislation enacted in the 1960s and 70s, such as the National Environmental Policy Act, the Endangered Species Act, and the Clean Air and Clean Water Acts. As in the current contests over climate change, the actors that shaped those statutes were myriad, including both private and public, for-profit and not-for-profit institutions, arrayed across numerous levels of government and linked through both formal and informal networks. By mobilizing action at the federal level, environmental activists by-passed or overrode obstacles that could not so easily be overcome at state or local levels. After all, how could state legislatures effectively regulate pollution from industrial facilities located in other states? Their efforts were multi-scaled, moreover—think of how Rachel Carson dramatized the perils of chemical pesticides by depicting events unfolding out ordinary housewives’ kitchen windows, for example. Pushing this history back further, to the early 20th century, one could examine the networked efforts of local groups in pushing for state level regulations to protect wildlife, enacted at a time when the federal government’s role was much more circumscribed than it has been in our own lifetimes. Even then, both national and international legal factors played important roles in processes of rescaling—how would the federal government have become such an important player without the Commerce Clause, for example? And what about international treaties protecting migratory birds, which further buttressed claims for federal jurisdiction?

The second direction that warrants greater attention under Osofsky’s diagonal framework is political economy. Perhaps, as in her article, it goes without saying that many, if not all, of the actors involved are motivated by concerns about economic growth: corporations, local developers and businesses, to be sure, but also municipal and county planners and, for that matter, employees concerned that regulating carbon may impact their jobs. Here again, questions of scale are of central importance. The opposition of the auto industry to state-level climate regulation, for example, rests largely on concerns that a “patchwork” of different regulatory regimes would undermine the economies of scale built into their production systems. And one can scarcely appreciate the importance of Massachusetts v. EPA without considering California’s outsized significance to the US economy in general, as well as its unique statutory position under the Clean Air Act. Economic production is fundamentally shaped by the scales at which it is organized, and institutions of governance are internally related to the resulting dynamics.

These are not flaws in Osofsky’s argument so much as further research directions, whose importance extends beyond legal scholarship but should not for that reason be neglected by legal scholars. Bridging disciplinary divides is of the utmost importance for addressing climate change, and thinking diagonally will require collaborative efforts among many different scholars, each bringing expertise not only in terms of substance but also in terms of the scales at which they are most adept at thinking and communicating. As Ruhl correctly notes, a diagonal approach is not merely a matter of being both horizontal and vertical at the same time, but of expecting and explaining complex, non-linear, and emergent properties and dynamics in both social and ecological systems. This complexity has long been a property of the world we seek to understand and affect, but perhaps only now are we beginning to recognize and appreciate it.

http://opiniojuris.org/2009/04/16/have-we-always-been-diagonal-a-response-to-osofsky%e2%80%99s-%e2%80%9cis-climate-change-%e2%80%98international%e2%80%99%e2%80%9d/

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