A Response to Maxine Burkett by Hari M. Osofsky

[Hari M. Osofsky is Associate Professor at Washington and Lee School of Law.]

In Climate Reparations, Professor Maxine Burkett makes a compelling case for viewing climate justice problems though a reparative lens. She articulates thoughtfully the barriers to achieving meaningful justice under existing frameworks and proposals, as well as the profound ethical dilemmas posed by the inequities regarding emissions, impacts, and adaptation. Her article makes a helpful contribution to efforts to conceptualize climate justice by theorizing how a reparations model might apply to climate change, and then applying it to a case study of the relationships among small island states and the United States.

My response to Professor Burkett’s article focuses on two future directions for the conversation about climate justice in light of this piece. Specifically, her article raises issues about the role of litigation and about the multiscalar nature of climate change which bear upon the possibilities and limitations of efforts at reparation. This response explores how further exploration these issues might supplement Professor Burkett’s analysis.

First, with respect to litigation, the article acknowledges current the role of litigation in making climate justice arguments, particularly in light of gaps in the international treaty regime. However, it argues that these actions are not leading to adequate action, both because most actions do not focus on vulnerable populations and because courts hesitate to take action on behalf of these populations as a result of these actions. The article then frames its argument for a reparations approach by arguing that while “divisive legal claims might be the best of many far less coordinated alternatives … none of these alternatives is optimal from the perspective of the climate vulnerable or the major polluters.”

In my view, litigation could play a helpful role in the development of the reparations scheme Professor Burkett envisions, and should be viewed as an ongoing process supplementary to reparations efforts. Litigation — even when not focused on harms to vulnerable populations — has both formal and informal impacts which can lead to improved mitigation efforts, an improvement critical to Professor Burkett’s reparations scheme. Through changing the law, putting pressure on major emitters and those who regulate them, and raising public awareness, these cases can lead to tangible emissions reductions and focus the public and policymakers on the plight of climate victims. Moreover, by providing a space for the formal expression and resolution of conflict, these cases play an important role in addressing the differences that cooperation and negotiation models cannot fully capture. For example, the U.S. Supreme Court opinion in Massachusetts v. EPA is resulting in administrative action under the Clean Air Act, and in so doing, is providing the basis for U.S. motor vehicle greenhouse gas emissions reduction even as climate legislation stalls. It also is helping to foster public acceptance of the problem, creating pressure for additional national and international action, and providing a vehicle for leader states and cities, together with interested nongovernmental organizations, to move the U.S. greenhouse gas emissions reduction strategy forward. While such a case does not directly assist climate victims, it helps to achieve the mitigation needed in Professor Burkett’s model.

Second, while Professor Burkett’s article acknowledges the multiscalar dimensions of climate change and resulting justice problems, its reparations scheme largely focuses on dynamics among nation-states. Such a core focus seems appropriate in many respects, since nation-states are the primary subjects and objects of international law and as a result, serve as the primary formal actors in international treaty negotiations. However, a reparations scheme that fully captures the climate justice problem might focus as well on major corporate emitters, which are generally transnational entities, incorporated in a particular state or province within a nation-state and interacting with a wide range of governmental actors at different levels around the world. Similarly, it might target the differences with respect to both emissions and impacts/adaptation between urban and rural areas, especially in light of the major urbanization taking place globally; cities, in their urban planning, will play a crucial role in implementation of reparations schemes, both because they account for a significant percentage of emissions and because of the growth of mega-cities in potential disaster areas. An effective reparations scheme might need to reach beyond the formal interaction among nation-states, which largely excludes these actors from the negotiating table and cannot fully capture the dynamics among them, to create a more integrative approach.

Overall, Professor Burkett’s article provides an important step forward in re-envisioning international approaches to climate justice. It provides a useful conceptual framework for developing reparations schemes, which given the dire state of international negotiations generally and with respect to climate justice in particular, are unfortunately only becoming more relevant.