Author Archive for
Hari Osofsky

Transparency and Access at the Paris Negotiations

by Hari Osofsky

[Hari Osofsky is a law professor, faculty director of the Energy Transition Lab, and director of the Joint Degree Program in Law, Science & Technology at the University of Minnesota. She is serving as chair of the American Society of International Law’s observer delegation at the 2015 Paris climate change negotiations. Any views expressed are those of the author and do not represent the views of either the University of Minnesota or the American Society of International Law. This is her second post from Paris.]

Expectancy has dominated the last two days as people awaited each day’s new draft of the agreement. Because the negotiations are taking place behind closed doors, people use relationships to learn ever-evolving information about the state of negotiations and timing of draft release and to give input to the small set of party representatives allowed in the negotiating rooms. They also race to gain the tickets that allow them access to the plenary room in which the Comité de Paris takes place, since most observers and many delegation members are stuck watching in overflow rooms. In the spirit of transparency, no one except those compiling the draft receives a copy before its release at the Comité de Paris and the drafts and reports on the consultations have all been posted publicly. I stood in a dinner line tonight with a minister who affirmed that he was looking forward to seeing the new draft.

At the Comité de Paris in which Wednesday’s draft was released, Laurent Fabius, COP 21 President, noted many new areas of convergence (there was a three-quarter reduction of bracketed language) and three remaining cross-cutting outstanding political issues, which are no great surprise: differentiation, financing, and level of ambition. After a second Comité de Paris that went until almost 11:30 pm, party statements reinforced that many key negotiating issues still remained, as Dan Bodansky’s post covered. I too was struck by the number of parties calling for a goal limiting the temperature rise to 1.5 degrees, as well as the level of support for the human rights provisions and REDD+.

State parties worked overnight and a new draft was released Thursday evening, with the time rolling back from early afternoon to 9 pm as people exchanged rumors and information. The same three political issues remain the key areas of negotiation and parties are participating in an Indaba of Solutions (closed to observers, with three exchangeable passes for each party) from 11:30 pm on after two hours to review the document. President Laurent Fabius made clear that the time has passed for general statements, and that this Indaba would focus only on compromise solutions aimed at seeking landing zones. He still aims to produce the final text tomorrow. The new text has even fewer bracketed items, and clearly represents some tough compromises. Notably, for example, human rights are mentioned in the preamble without brackets, but have been removed from the operational Article 2.

Press conferences abound as this COP moves towards its conclusion, reinforcing the sense of energy here. In one of the most high profile press events yesterday, Secretary Kerry formally announced that the U.S. is part of the high-ambition coalition and would double its grant-based adaptation commitments by 2020. The press conference was screened to an overflow audience at the U.S. Center as security excluded all observers from the actual press conference (limited to the press pool).

At the same time the negotiations continue to unfold, side events highlighting cities, states, and corporations, as well as a myriad of specific issues, proliferate inside the restricted Blue Zone, in the public Climate Generations space, and around Paris. As someone trying to go to as many side events as possible on subnational government and corporations (while also attending the very limited number of the official negotiation meetings that I have access to), I am overwhelmed by the number of simultaneous options. Participants in these events, including ones who have been to many COPs, attest to the growing role of these non-nation-state entities and recognition of that role. At the same time, many of them call for greater access and inclusion.

As I return from tonight’s meeting, I want to reflect for a moment on this question of access in a world of increasingly polycentric climate change governance. I worry about what those concentric circles that I referred to in my first guest post mean for stakeholders’ ability to have input into the critical compromises being made as I write. There is a fundamental tension at the core of this issue. On the one hand, closed spaces can help people speak freely in ways needed for compromise. On the other hand, if all these other stakeholders matter to the problem and its solution, are current avenues for input enough?

Non-parties have certainly had some avenues for input here besides back channels and this post is not intended as a criticism of access at this meeting in particular. Observers were given the opportunity to talk with Executive Secretary Christiana Figueres and UNFCCC COP 20 President and current Peruvian Minister of Environment Manuel Pulgar-Vidal Wednesday morning, and Minister Pulgar-Vidal conveyed their input at the Comité de Paris just before the Wednesday evening meeting closed. Meanwhile, advocacy groups, such as the coalition working to shift the countries opposing human rights provisions, continue their campaigns to influence national positions with letters and calls to key officials—as well as by comments on drafts given to those with access to negotiators. And nation-states’ pledges through their Intended Nationally Determined Contributions (INDCs) are foundationally based on conversations that national governments have had with other key governmental and nongovernmental actors.

The access issues in international negotiations, though, are much more fundamental than the particular procedures used in any given meeting. Namely, the nation-state-based structure of negotiations and agreements fundamentally limits how polycentric governance is in this context. Even if cities, states, regions, and corporations form their own agreements and pledges, the closed structure of this final stage of negotiations constrains how much those efforts are able to align. And as many have discussed in multiple contexts, resource differences among nation-states make a major difference in their ability to negotiate; the President has tried to be sensitive to small delegations who do not have enough people to attend simultaneous meetings on several streams, but it is clearly much easier for delegations that can substitute in negotiators as meetings go into the wee hours over multiple nights.

The solution to this problem is not straightforward. The world remains divided into nation-state units and treaties among nation-states remain the strongest mechanism that the world has to try to achieve universal action—a critically needed step given how large the gap is between the INDCs and the 1.5 (or even 2) degree goal. But after people emerge from this meeting, hopefully with as strong a Paris Outcome as possible, it is worth taking some time to consider what ways might exist to bring key actors on climate change together better as they make important decisions.

Success in the Paris Climate Negotiations in Broader Context

by Hari Osofsky

[Hari Osofsky is a law professor, faculty director of the Energy Transition Lab, and director of the Joint Degree Program in Law, Science & Technology at the University of Minnesota. She is serving as chair of the American Society of International Law’s observer delegation at the 2015 Paris climate change negotiations. Any views expressed are those of the author and do not represent the views of either the University of Minnesota or the American Society of International Law.]

I appreciate the opportunity to guest blog with Opinio Juris while at the Paris climate change negotiations this week. I will aim in my blogs to complement Dan Bodansky’s excellent assessment of the negotiations among state parties by examining the broader context of what would be required to address climate change adequately and the activities by other key stakeholders.

From my observation of the first Comité de Paris and hallway conversations on Monday, December 7, the parties still seem on track to reach some sort of agreement in Paris, though perhaps not by the Friday deadline. While there are certainly some differences yet to be resolved, the tone appears to be unusually cooperative at this stage according to those who have attended many of these negotiations.

However, even if the agreement contains reference to the need to keep warming less than 1.5 degrees, which appears increasingly likely, the state parties are highly unlikely to actually achieve that with their current commitments. As one civil society participant from Latin America remarked to me yesterday, the key question is whether we hold warming at 3 or 4 degrees. While I certainly hope he is wrong, we are not on track, even is these negotiations successfully conclude, to mitigate at the levels that scientists say are needed. And as I have analyzed in forthcoming articles with Jackie Peel  and Hannah Wiseman, even if we can find ways to more constructively address energy partisanship in the United States, the Clean Power Plan will involve a complex integration of an environmental cooperative federalist law with a largely state- and regionally-based energy system.

So how do we bridge the gap between what negotiations among nation-states can achieve and what is needed? Two key pieces of that puzzle are subnational governments and the private sector (particularly corporations and investors), and my blogs this week will focus on some of their activities here.

In the process, I will also try to convey, for those who have not attended international negotiations like these, the concentric circles of activity taking place here, with access limitations between each ring. At the core are the nation-states negotiating, and even some of those meetings are only open to subsets of those negotiators. A key concern raised in the Comité de Paris by several state parties on Monday night was the need for more transparency and inclusion in the informal facilitated streams taking place this week to try to bridge differences. Outside of that are official observers, who can gain access to only a very limited set of the negotiations but are able to enter the “Blue Zone,” which contains the negotiating spaces and many of the high-level side events. Outside of the restricted space, a hall in Le Bourget and venues around Paris contain events open to the many people who are here without access passes.

As I move between sessions in the “Blue Zone” space, the people around me exude a sense of being rushed and busy with important tasks as they race among meetings and cluster in small groups in hallways. I am continually reminded of an observation by Sheila Watt-Cloutier, the-chair of the Inuit Circumpolar Conference, when she presented  at the climate change negotiations in 2005, the year that the Inuit submitted their petition to the Inter-American Commission on Human Rights claiming that U.S climate change policy violated their rights:

I have attended three COPs. People rush from meeting to meeting arguing about all sorts of narrow technical points. The bigger picture, the cultural picture, the human picture is being lost. Climate change is not about bureaucrats scurrying around. It is about families, parents, children, and the lives we lead in our communities in the broader environment. We have to regain this perspective if climate change is to be stopped.

While many at these negotiations clearly have that bigger-picture focus, I think that continually reminding ourselves of what all these legal conversations are really about is critical. Achieving an agreement that goes farther than anything that preceded it at Paris would certainly be a form of success, but ultimately we only succeed if we limit human suffering and ecosystem damage—and develop new opportunities—through mitigating and adapting adequately.

Addressing the Complexity of Climate Change’s Human Cost: A Review of Overheated: The Human Cost of Climate Change by Andrew T. Guzman

by Hari Osofsky

[Hari M. Osofsky is an Associate Professor at the University of Minnesota School of Law.]

Andrew Guzman’s new book, Overheated: The Human Cost of Climate Change, does an excellent job of explaining in an accessible fashion the devastating consequences of climate change for people, especially the world’s poorest people.  The focus of this book is on bridging the gap between expert knowledge and popular understanding in order to catalyze needed mitigation.  Its great strength is that it does so without minimizing the complexity and intertwined character of the problem.  Rather, it shows how the simultaneity of climate change’s impacts and of their interaction with underlying resource scarcity and political tensions will likely have devastating human consequences even in relatively conservative scenarios of these impacts.

Each chapter builds upon the previous one in portraying climate change’s human costs.  The introductory chapter likens the problem of climate change to the game of “Kerplunk,” in which one removes sticks holding up marbles and tries to win by minimizing how many marbles fall during one’s turn.  The difficulty is that the farther one gets in the game, the harder it is to prevent the marbles from falling and to limit the risks of the removal of each subsequent stick.  The book proceeds to show how late we are in our game of “Kerplunk,” outlining the harm that climate change has already done and how that pales in the face of the harm that is very likely to come.  After an initial overview of climate change science, chapters focus on the human consequences of impacts: (1) sea-level rise, severe storms, and forced migration of nation-states and populations; (2) current and future water shortages and our lack of capacity to address them adequately; (3) the risks of armed conflict arising from water shortages and other climate change impacts; and (4) the many resulting health consequences, from increases in known diseases to the growing risks of evolving pathogens and global pandemics. The book concludes with a discussion of solutions.  It analyzes ways to set a carbon price effectively, and cautions against relying on solutions like geoengineering or waiting for an increased future capacity to address the problem effectively.

The book’s focus on the human face of climate change is an important contribution to the literature because it helps make the case for why we need to act to address the problem.  It compiles a wide range of existing information on climate change and puts it together in an engaging way that a reader without a technical or legal background could understand.  Each chapter interweaves geopolitics and historical examples with the problem of climate change and how it is likely to worsen.  This approach helps the book contextualize its argument, showing how climate change fits within a complex global context.

This book is explicit in its primary focus on describing the human problems rather than on solving them.  However, in this review, I would like to continue where the book left off by suggesting two implications of Guzman’s exposition for potential solutions.  (more…)

Berman Book Symposium: Multiscalar Legal Pluralism and Justice

by Hari Osofsky

[Hari M. Osofsky is Associate Professor and 2011 Lampert Fesler Research Fellow, University of Minnesota Law School and Associate Director of Law, Geography & Environment, Consortium on Law and Values in Health, Environment & the Life Sciences]

This post is part of our symposium on Dean Schiff Berman’s book Global Legal Pluralism. Other posts can be found in Related Posts below.

It is an honor and a pleasure to have the opportunity to participate in this conversation about Paul Berman’s exciting new book, “Global Legal Pluralism: A Jurisprudence of Law Beyond Borders.”  Like many of the commentators, I have had the privilege of watching this project evolve over several years.  The book is a tremendous contribution which reflects Paul’s command of numerous interdisciplinary literatures and substantive areas of law.  It makes an articulate and compelling case for taking a cosmopolitan and pluralist approach to law in an era of globalization.

My two primary interventions in this brief blog are not so much critiques of the book, as suggestions for directions Paul and others could go from here to explore these issues in additional ways.  First, as Paul and I have discussed for many years, I think his geographical analysis might be developed further by focusing on issues of scale more deeply.  Early on, I queried whether the book should be called “multiscalar legal pluralism” rather than “global legal pluralism.”  I wondered whether Paul could fully capture the interactions and institutional hybridity through focusing on the “global” or “international” levels.

Paul has done much to address that concern in the ways in which he has incorporated multiple levels of government, even using the term “multiscalar” in the context of discussing climate change federalism.  However, I would be excited to see him go even deeper in future explorations of scale in this context.  Specifically, I wonder what “global” or “international” means in a cosmopolitan and pluralist world.  To the extent that one accepts geographer Kevin Cox’s theory that each level is constituted by core interactions at that level and by interactions across levels (a theory that I often draw from in my own work), multiple visions of the international scale might result.  These possibilities for pluralism in defining global scale might impact the hybrid forms that Paul explores so thoughtfully.
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Cheng Book Roundtable: The Importance of Perspective – Reflections on Additional Frontiers

by Hari Osofsky

[Hari M. Osofsky is Associate Professor and 2011 Lampert Fesler Research Fellow, University of Minnesota Law School and Associate Director of Law, Geography & Environment, Consortium on Law and Values in Health, Environment & the Life Sciences]

I am grateful for the opportunity to participate in this exchange over Tai-Heng Cheng’s ambitious and thoughtful new book, When International Law WorksOpinio Juris enhances the international law dialogue by providing these opportunities for more informal, timely discourse on important topics.

As the final commentator in this interchange, I have had the pleasure of learning not only from the original text, but also from the conversation about it. I will attempt in my remarks to build from some of those threads in addition to reacting independently to the text. Like other participants, I will respect the form of this forum and not try to attempt a comprehensive analysis of the book. Rather, given the book’s grounding in the New Haven School’s policy-oriented jurisprudence, I will focus my remarks on how that approach’s ideas about participants in the international order and internal and external perspective, as well as the interactions between New Haven School and TWAIL scholars, might provide fertile ground for this book’s approach to be applied in additional ways.

Before considering such new frontiers, however, I want to acknowledge what this book achieves. First, at a conceptual level, it engages a staggering array of international legal theory and some of the most polarized debates within that to make a constructive contribution to a deeply fraught dialogue. Whether or not one agrees with all of the book’s precepts—as this interchange already represents, the book and its author invite an array of perspectives and thoughtful disagreement—it represents an important effort to move the conversation about the role of international law forward. Second, and more practically, it situates that theory in a diverse array of contentious and critical international legal issues and provides an approach for analyzing how a number of key decisionmakers have and should interact with them. Its analysis provides an opportunity to revisit past and current controversies and examine them through a new lens.

Exploring Diagonals Further: A Response to Professors Ruhl and Sayre

by Hari Osofsky

I very much appreciate the thoughtful commentary of Professors J.B. Ruhl and Nathan Sayre on my article.  They are engaged in tremendously interesting thinking on questions of environmental scale and governance, and I find their comments insightful.  I agree with both of them that this article opens further research questions about what diagonals are, how they have been constituted over time, the ways in which law and political economy interact through them, and how they might fit into panarchical conceptions of governance.  More broadly, their comments speak to the value of bringing law and geography together to address complex environmental problems.

My exploration of diagonals in the context of climate litigation raises questions for me about the benefits and limitations of such cross-cutting approaches.  As I, like Ruhl and Jim Salzmann, reflect on the messiness of problems like climate change, I agree with them that our approaches need to engage the panarchical nature of the formal and informal interactions taking place.  However, I also struggle with the scalar stickiness of law, which is subdivided into relatively fixed levels of governance.  When we try to craft governance structures that encompass the messiness of climate change, what I would term fully integrated diagonal approaches, their complexity becomes daunting.  In a companion piece to this one, tentatively entitled Diagonal Climate Regulation: Implications for the Obama administration, which I hope to have in full draft by the end of the summer, I am thus considering the vectors that comprise diagonal interactions and the possibilities for crafting integrative approaches through combinations of partial diagonal regulation.  Specifically, I am considering regulatory scale (small scale v. large scale), axis (vertical v. horizontal), hierarchy (top-down v. bottom-up), and cooperativeness (cooperative v. conflictual).   I think that a study of these vectors and how regulatory approaches at different points along them might be combined in the context of the Obama administration’s efforts may help to get at the complexity Ruhl rightly highlights.

Moreover, I agree with Sayre that history and political economy are key elements for understanding how effective diagonal regulatory approaches might be developed.  I had the pleasure of participating this spring in a Washington University Journal of Law & Policy symposium organized by Dan Mandelker and Dan Tarlock on New Directions in Environmental Law.  The symposium explored how U.S. environmental regulation should develop through paired presentations on the history of major statutes and possibilities for the future.  One thing that struck me throughout the dialogue was the complex interplay of science, scale, and law taking place in each of these substantive contexts.  I think that we can learn from the experiments in horizontal, vertical, and diagonal governance that these statutes create—both in the provisions themselves and in the formal and informal interactions regarding their creation, interpretation, and implementation—as we consider what the next generation of environmental governance should be.  For example, the Clean Air Act has a number of provisions that create diagonal interactions, such as the waiver provision discussed in depth in Is Climate Change “International”?: Litigation’s Diagonal Regulatory Role.  An engagement of the rich federalism literature regarding these statutes through the lens of geography’s nuanced exploration of scale provides many possibilities for future inquiry.

These historical questions are made more difficult by the way in which time interacts with the problem of climate change.  Current levels of greenhouse gases in the atmosphere result from emissions allowed under past regulatory regimes, and future levels will be influenced by past, present, and future laws.  As noted in Is Climate Change “International”?, different parts of the climate system respond at varying paces; for example, the ocean and atmosphere do not evolve at the same rate.  Similarly, impacts and adaptation needs vary simultaneously across time and space, which create policy and justice dilemmas.  To make things even more complex, scientific uncertainty is greater at smaller spatial and temporal scales.  Efforts to craft diagonal approaches will need to be grounded in the historical contests and their resolution that Sayre describes, as well as these spatio-temporal interactions.

I similarly concur with Sayre’s assessment of the critical role that the scales of the political economy play.  In my earlier work on climate change litigation, particularly The Geography of Climate Change Litigation: Implications for Transnational Regulatory Governance, I explored these cases as multiactor, multiscalar, multibranch interactions which center around state-corporate regulatory dynamics regarding climate change.  These suits generally focus either on whether or not government should be regulating major corporate emitters or directly on the auto and power plant industries.  More broadly, the complex legal, political, and economic scales of governmental and nongovernmental entities, as Sayre notes, influence the possibilities for effective diagonal regulatory strategies.  Some local governments, such as San Bernardino County for example, are larger than many states and even smaller nations, and the most significant U.S. state emitters would rank among the countries with the greatest emissions if they were so categorized.  Major corporate emitters are simultaneously local, state, national, and transnational.  These complex identity issues blurs a description of a diagonal as small or large scale, top down or bottom up, and vertical or horizontal.

The nuances that the commentaries by Ruhl and Sayre highlight thus reinforce the role that law and geography can play in crafting more effective regulatory strategies for complex problems like climate change.  Geography’s engagement of place, space, and scale can add depth to legal analysis, and law’s understanding of regulatory intricacy can do the same for geographic analysis.  An exploration of diagonal regulatory strategies in this context forms one piece of that larger project.

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

by Hari Osofsky

[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.

Roundtable on Massachusetts. v. EPA: The Front-line of U.S. Climate Change Litigation

by Hari Osofsky

[Hari M. Osofsky is an Assistant Professor of Law at the University of Oregon. She is a regular contributor to IntLawGrrls. This post is part of an Opinio Juris roundtable discussion of the international law dimensions of the Mass. v. EPA decision]

The Supreme Court decision in Massachusetts v. EPA represents a watershed moment in the U.S. dialogue over climate change. The ruling may not induce major changes in behavior directly, but when viewed in the broader context of litigation and policy, it is a critical step forward.

The opinions in the case contain some gems for those who want to push for stronger greenhouse gas regulation. Most importantly, no member of the Court attempted to deny the serious need to regulate greenhouse gas emissions. Justice Robert’s dissent opened with the acknowledgement: “Global warming may be a ‘crisis,’ even ‘the most pressing environmental problem of our time.’” Although the dissents certainly opposed the majority position on justiciability, and three of the justices also disagreed on the merits, none of them argued that climate change was not happening or was too uncertain to regulate in some fashion.

The majority opinion held that harms to coastal property in Massachusetts were enough to provide the petitioners with standing. In so doing, the Court rejected the idea that the “widely shared” harms of climate change prevented claims of individualized harm. As I’ve discussed in a soon-to-be-posted symposium piece forthcoming in the Oregon Review of International Law, this approach to standing involves “scaling down” of the science and law; the opinion recognizes that a “global” problem like climate change can have state and local causes and impacts. Although the Court carefully cabins its standing analysis as applicable to the state petitioners, its holding at the very least provides important support for regulatory and nuisance actions brought jointly by governmental and nongovernmental petitioners that are currently pending in the lower courts.

On a substantive level, the opinion endorses an evolutionary view of statutes and imposes limits on the executive branch. The Court’s interpretation of the “broad language” of the Clean Air Act Section 202(a)(1) as “an intentional effort to confer the flexibility necessary to forestall … obsolescence” supports responsive environmental law in this country. Although the opinion stops short of mandating that the EPA regulate greenhouse gas emissions, it requires the agency to meet stringent standards if it chooses not to do so. In particular, the Court constrains the EPA’s regulatory discretion by stating: “Under the clear terms of the Clean Air Act, EPA can avoid taking future action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.”

The law and policy significance of Massachusetts v. EPA, however, involves more than just its precedential impact. As I’ve discussed in depth in Climate Change as Pluralist Legal Dialogue?, the parties to the case are all major players in the policy debate over climate change. For example, California is a plaintiff in four other cases and a defendant in one other, leads the country with its groundbreaking legislation AB 32, and its representatives in Congress are playing important leadership roles in the development of federal statutes regulating greenhouse gases. Its cities also have taken the lead as petitioners in climate change litigation, members of international initiatives on climate change, and “signatories” to the Kyoto Protocol requirements. This opinion thus interacts in a range of complex ways with a broader dialogue occurring simultaneously at multiple levels about how to address climate change.

As a new Oregonian and recently-departed Californian, I am very proud of “my” states’ victories over the Bush Administration. But also I hope that this landmark moment, in which the U.S. Supreme Court has first spoken on climate change and acknowledged its importance, is one from which all of us move forward in our own efforts—personal, local, state, national, and international—to address this problem that will become ever more relevant to our daily lives.

*The ideas in this post have been expressed in part in my Opinion Editorial in the Oregonian,and my post on the case on IntLawGrrls.

Symposium: Osofsky Reply to Knox

by Hari Osofsky

[Hari Osofsky is Assistant Professor of Law at University of Oregon and a contributor to the Opinio Juris On-Line Symposium. She blogs regularly at IntLawGrrls]



I would like to begin by thanking the Opinio Juris bloggers for their hard work in conceptualizing and organizing their inaugural on-line symposium. I very much appreciate the opportunity to participate in it, as well as John Knox’s thoughtful reaction to my piece. This dialogue is a wonderful opportunity for junior scholars to get feedback on their work, and I am certain that my piece will improve greatly through the interchange. I also am grateful for helpful exchanges about legal pluralism over the past few days with Elena Baylis, Paul Berman, Joshua Gitelson, Rebecca Hardin, Janet Levit, and Michelle McKinley, which have contributed to my thinking in this response.



John’s comments on the piece primarily focus on two issues. First, he questions the distinction between pluralist and modified Westphalian approaches. Second, he raises concerns about whether a pluralist approach provides too much of an opening for those who seek to limit international law. I address each of these points in some detail below. At the core of my response, though is an argument that pluralist approaches have the potential to provide more effective protection of “international law” than Westphalian approaches because they allow for fuller acknowledgment of international lawmaking that does not rest on the coercive force of the nation-state. Or, as Janet Levit has aptly titled a recent piece, “International Law Happens (Whether the Executive Likes It Or Not).”



In discussing the first issue, a contextualizing of this piece is in order. I am in the process of writing a trilogy of articles on the geography of climate change litigation. The first article in the trilogy, The Geography of Climate Change Litigation: Implications for Transnational Regulatory Governance, 83 WASH. U. L.Q. 1789 (2005), describes this litigation as a modified Westphalian phenomenon and explores the implications of its geography for approaches to transnational regulatory governance. The second article, The Geography of Climate Change Litigation Part 2: Narratives of Nation-States and Thirdspace—which is currently in preliminary draft form—explores how a law and geography analysis might help to address the interrelated crises facing international law and climate change regulation. Most relevant to my response to John, that piece draws from geography to propose a taxonomy of international legal theory approaches based on how they view nation-state spaces: Westphalian, modified Westphalian, pluralist, and critical. I define each of those terms in detail in that piece, and will focus my discussion here on the terms most relevant to John’s and my interchange.



The thought piece included in this symposium, Climate Change as Legal Pluralist Dialogue? (which will be published in final form in STANFORD ENV. L.J. & STANFORD J. INT’L L. __ (forthcoming 2007)), is an effort to play with the third approach in that taxonomy, a pluralist one, in more detail than the focus of that second article allows. In particular, drawing from the scholarly literature on law and geography, judicial dialogue, and legal pluralism, I consider two main examples—California’s role in climate change litigation and the informal role of supranational petitions—to explore how a pluralist perspective on them might differ from a modified Westphalian one. In so doing, I am not necessarily assuming the pluralist mantle, but rather asking what insights that conceptual approach might bring to an understanding of the climate change litigation’s regulatory role.



John’s discussion helped me to recognize that I need to use my terms more precisely in the final version of this piece. In particular, I need to dispense with the term “traditional”—which I used to make the piece more accessible—in favor of more consistent use of “Westphalian” and “modified Westphalian,” which both have particular definitions. John and I agree—as I have discussed explicitly in other pieces and should make more explicit in my final version of this piece—that very few scholars are Westphalians. Where he and I part ways somewhat is that I do not think that almost all international legal scholars and lawyers are modified Westphalians. Rather, I think that most range from modified Wesphalian to pluralist, and that there is a significant body of important critical international legal scholarship too often ignored in “mainstream” international legal debates.



John points out accurately that, in this piece, I take a less radical pluralist approach that focuses on international lawmaking without disturbing the formal category of international law. The difficulty of such approach—as I acknowledge in the draft—is that the term “international lawmaking” is far mushier than the term “international law,” which leaves the analysis open to exactly the kinds of questions that John asks. But I choose it as the more practically viable approach to global (or more accurately, multiscalar) legal pluralism. In this version of a pluralist model, international lawmakers are those who make law relevant at an international level, whether or not that law would be included in the formal category of international law.



In my view, the core difference between modified Westphalian and pluralist approaches has to do with the extent to which they decenter the nation-state. A modified Westphalian looks inside the nation-state to consider the range of relevant actors and behaviors, but still views the nation-state as the primary international lawmaker. In contrast, a pluralist, after a similar inquiry, views the nation-state as just one international lawmaker among many. Michael Reisman—whom John would prefer “in” over Rehnquist—and other New Haven School proponents, for instance, provide a model of interpenetrating communities engaged in authoritative decisionmaking. Modified Westphalians are thus more pluralist than Westphalians, but do not take that further step of moving the nation-state out of center stage and into the cacophonous chorus line.



As I note in this piece and in my more detailed discussion of the taxonomy in The Geography of Climate Change Litigation Part 2, the distinction between the two approaches is often quite a fine one. For example, some aspects of Anne-Marie Slaughter’s theoretical work appear to be quite pluralist, but she also acknowledges the nation-state as the most important lawmaker. However, as the specific examples of subnational actors and supranational petitions illustrate, those ambiguities of categorization should not be used to mask a real difference in worldview between the two approaches. Modified Westphalians would treat those examples as relevant to the international law story primarily through the ways in which they contribute to a state-centered lawmaking process. In contrast, the pluralist narrative, which deemphasizes the importance of the formal category of international law and describes a hybrid lawmaking space, explores a broader range of ways in which climate change litigation matters.



The relevance of this distinction becomes clearer when one turns to the second issue that John raises and that Part V of the paper explores in depth. Namely, how does one’s understanding of climate change litigation evolve if one moves from a modified Westphalian to pluralist worldview and what are the implications of that choice? In the paper, I grapple with the distinction by imagining a series of dialogues between modified Westphalians and pluralists, which I’ll only discuss briefly in this short response when they are relevant to John’s comments.



The limitation of modified Westphalian approaches is their fixation with formal, binding international law created by nation-states, a difficulty exemplified in the concern that John raises at the end of his comments. Much energy is spent in the current polarized discourse debating the boundaries of that category. A more pluralist approach would not, as John suggests, lend support to those who criticize international law. Rather, it would likely claim that the narrow focus of this debate causes it to miss important parts of the story. Paul Berman’s book review critiquing The Limits of International Law, serves as an excellent example of how a pluralist approach can be used to highlight the assumptions of “the realist and ‘fortress America’ critics of international law.”



The pluralist model that I rely upon on this piece does not enter the fray over what should count as part of formal international law, but instead tells the story differently. Its concern is over the bigger picture of the regulation of global climate change and what is lost when the formal international law piece of the narrative becomes too privileged. In so doing, it provides a way out of the encampment over international law because it suggests that this formal, binding quality that John so values is a much smaller piece of what matters than any version of the Westphalian model presumes. John’s concern about pluralist analysis being used as a tool by those wishing to constrain international law further, while worth engaging in the current political climate, thus seems somewhat misplaced. Modified Westphalians’ emphasis on a different part of the story makes it unlikely that a pluralist approach could cause formal international law to be further constrained other than by the realities of hybridity.



In the specific context of climate change, a pluralist approach has the potential to help respond to arguments seeking to constrain the use of international legal protections. For instance, Eric Posner’s working paper, Climate Change and International Human Rights Litigation: A Critical Appraisal —which I have criticized in The Geography of Climate Change Litigation Part 2, and plan to critique in depth in a book review, Climate Change, Environmental Justice, and Human Rights: A Response to Professor Posner, that I am in the process of drafting—provides a normative argument against climate-change-based human rights claims under the Alien Tort Claims Act. This paper’s argument, like The Limits of International Law, is grounded in a number of explicit and implicit assumptions that an acknowledgment of multiple normative communities can help unpack.



Furthermore, the difference between modified Westphalians and pluralists is more fundamental than the Gershwinian variations in pronunciation to which John compares them because how we narrate has consequences for how we approach lawmaking. When the ultimate question is what binds formally—which is where John, like most modified Westphalians, ends up—the implications of climate change litigation that have little to do with inter-nation-state lawmaking become comparatively less important. As a result, we may miss norm-creating dimensions of the litigation that contribute minimally to formal international law. For example, I recently heard a presentation at the Stanford Law School symposium on climate change regulation for which I have prepared this piece that proposed what future treaties on climate change should include in terms of liability provisions. The analysis focused almost entirely on what would be politically viable in nation-states and issues of nation-state behavior. As I noted in my presentation there, a more pluralist approach would contextualize that treaty further and frame it as lawmaking behavior situated among many other types of relevant lawmaking. I grant John’s point that the difference is subtle—something that I also acknowledge in the paper itself—and that modified Westphalians could and sometimes do formulate contextualized treaties. But the focus on formal, nation-state lawmaking versus a hybrid system influences what gets factored into the analysis. Pluralist perspectives are helpful because they push towards a more inclusive approach.



In the final analysis, as I note in my conclusion, pluralist analysis is more difficult to translate into practical legal structures than are Westphalian approaches. Pluralism is messy and rife with internal questions. It is hard to expansively define relevance and then come up with a manageable set of relevant actors and legal behaviors. However, I think that the value of attempting pluralist analysis outweighs these difficulties and the potential dangers that John outlines. In a time of contestation over core values, pluralism provides a mechanism for approaching international legal problems more holistically and creatively than the Westphalian obsession with nation-states and formality allows. Although I am not sure that I am a pluralist, I see great value in considering the lawmaking value of what Judith Resnik as termed “multiple ports of entry,” even when their direct relevance to binding international law is limited.

Symposium Paper 5: Climate Change Litigation as Pluralist Legal Dialogue?

by Hari Osofsky

Abstract



This thought piece will focus on the following question: What are the implications of conceptualizing of climate change litigation as pluralist legal dialogue? Part II provides the conceptual framework of the article by introducing and interweaving law and geography, judicial dialogue, and legal pluralism. Part III of the paper uses the example of California’s role in climate change litigation to explore the idea of substate actors as international lawmakers. Part IV of the paper considers the example of supranational climate change petitions to engage the complex informal role that these petitions play in making law. Part V of the paper draws from these examples to analyze how a pluralist approach might address issues of scale and formality, and the implications of a hybrid model of international lawmaking for the regulation of anthropogenic climate change. The paper concludes with reflections on the significance of how legal boundaries are drawn for the development of more effective approaches to transnational regulatory governance.



Full Text

Climate Change Litigation and Dilemmas of Transnational Regulatory Governance

by Hari Osofsky

Midterm Elections and Climate Change

by Hari Osofsky