Is Climate Change “International”? Litigation’s Diagonal Regulatory Role

[Hari M. Osofky is Associate Professor at the Washington and Lee University School of Law]

I would like to thank both the Virginia Journal of International Law and Opinio Juris for providing this forum to discuss my new article, Is Climate Change “International”?: Litigation’s Diagonal Regulatory Role.  I also am grateful to both J.B. Ruhl and Nathan Sayre for their thoughtful commentary on the piece.

This Article argues that the scale of climate regulation must fit the scale of the problem.  More specifically, the Article claims that because greenhouse gas emissions and impacts are multiscalar—individual, local, state, national, regional, and international—focusing predominantly on any one level of governance limits solutions.  Although existing analyses and regulatory efforts often recognize the multiscalar nature of this problem, translating that recognition into meaningful policy solutions is extremely difficult, as exemplified in treaty negotiations, piecemeal policy initiatives, and pending litigation.

This challenge is made harder by efforts that treat climate change as a predominantly “international” legal problem in order to block smaller scale regulation.  Variations on these “too big” arguments are proffered repeatedly in climate change litigation currently taking place in U.S. state and federal courts.  Regulatory opponents argue that the spatial and temporal scope of climate change and its resulting scientific uncertainties make particular local, state, or national regulatory steps inappropriate.  The Article explores two examples of these scalar contests—California’s suit against San Bernardino County for its failure to regulate and the U.S. EPA’s denial of California’s Clean Air Act waiver request—and their implications for regulatory scale.
The Article then considers the lessons from these disputes for what more effective multiscalar governance of climate change might look like.  It examines the dangers of “scaling up” climate regulation and the “diagonal” regulatory role that these lawsuits play. Bringing together the scholarly literature on transnational legal process and geographic network theory, grounded in dynamic federalism and new governance approaches, it situates the two case examples within multiscalar networks that form the basis for informal and formal efforts to enhance or undermine regulatory efforts.

The Article argues more broadly that the nature of the problem and of the public and private entities engaging it provides the basis for diagonal regulatory strategies that simultaneously incorporate vertical and horizontal networks; this litigation serves as one such mechanism, and more analysis of other appropriate contexts for diagonal approaches is needed.  In so doing, the Article introduces my ongoing research and writing on diagonal regulation, in which I am exploring in further depth the elements of such approaches and their implications for the Obama administration’s efforts to address climate change.