Book Review: Burns and Osofsky, Adjudicating Climate Change
Adjudicating Climate Change: State, National, and International Approaches, edited by William C.G. Burns & Hari M. Osofsky. Cambridge: Cambridge University Press, 2009. pp. 399.
“As climate change litigation proliferates around the world, an assessment of what its role is and should be in transnational regulatory governance becomes important. This volume provides such an assessment by exploring representative examples at subnational, national, and supranational levels.” So opens a broad collection of papers in this book edited by Burns and Osofsky. In this short review, I describe those papers and assess the claims Burns and Osofsky advance about the role of “climate change adjudication,” at least indirectly, in their selection and editing choices. In a nutshell, this volume should be of special interest to the growing ranks of public officials (and public intellectuals) venturing into what is quite simply the biggest, hardest “environmental” problem we have ever faced: globally catastrophic climate change.
The single most effective cost-externalizing technology humanity has ever devised is fossil fuel. Fossil fuels literally exemplify the microeconomic theory of market failure because they allow users to reap often tremendous rewards while spreading the most potent costs planetarily. This is much of what makes limiting fossil fuel use so hard. The collectives of people with real authority and power to do so have lopsided incentives against doing so, especially given the fact that their own self-discipline is guaranteed no absolute efficacy—unless and until others commit as well.
As so obviously tilted as all this is, a great deal of reasonable disagreement still remains surrounding who ought to move first, by what normative means, according to what timetables, at what costs, and pursuant to which authorities. The norms have yet to be authored that establish which uses of fossil fuels are unduly risky, which uses are justifiable, or for whom. That is what makes “adjudicating climate change” so unique: it is quite literally a matter of applying norms that do not yet exist. Burns & Osofsky divide the papers of the volume up into “subnational,” “national,” and “supranational” cases, seemingly in an effort to keep things in jurisdictional perspective.
The first few papers—a paper by Stern on Minnesota’s “externality” reporting law, a paper by McAllister on Australia’s cases involving the recent permitting of new coal mines, a particularly suggestive paper by Trisolini & Zasloff on local land use planning, and a paper by Wood on extending the public trust doctrine to protect the atmosphere—provide vivid and repeated testimony to the nestedness of our jurisdictional systems. Law in the English-speaking world is innately jurisdictional and jurisdictions are, empirically speaking, highly variable. Trisolini and Zasloff’s paper rightly points out, for example, that local land use law and policy has perhaps the most powerful influence on our energy consumption patterns but that just understanding what motivates cities and other local government to action/inaction is still maddeningly beyond our capacities.
Part II consists of papers by Osofsky on Massachusetts v. EPA, by Cummings & Siegel on the listing pursuant to the U.S. Endangered Species Act of wildlife species imperiled by climate change, by Sinden on the gas flaring litigation in Nigeria, by Grossman on tort-based claims against greenhouse gas emitters, and by Stempel on insurance’s capacity to spread the risk of climate change liability. Ironically, one has the sense after reading these papers that there really is very little about climate change that is addressed effectively or most naturally by “national” jurisdictions, rightly conceived.
Part III explores certain “supranational” norms—binding norms, that is (at least loosely defined)—touching or concerning climate change. The loss of heritage sites to climate change is arguably a matter for the World Heritage Convention and Thorson’s paper makes that case. Osofsky’s paper on the Inter-American Commission on Human Rights begins her consideration of the Inuit petition thereto by repeating a particularly powerful question: “How would you respond if an international assessment prepared by more than 300 scientists from 15 countries concluded that your age-old culture and economy was doomed, and that were to become a footnote to globalization?” Gleason & Hunter explore some of the administrative mechanisms available to those who would reform the World Bank and the global financial system from the inside out. Burns sketches theories of liability growing out of the loss of various fish stocks from the degradation of the marine environment. (Even these claims ultimately run into the same barrier that all claims rooted in corrective justice ultimately must: causation. And Burns acknowledges just how many destructive forces are bearing down upon most fisheries today.) Finally, Strauss explores possible routes into the International Court of Justice—as well as many of the mechanisms by which ICJ jurisdiction can be precluded by precisely the parties climate change activists are targeting.
The trouble with supranational norms of this sort, much like the trouble with their more localistic counterparts, is that they are norms designed (or maintained) to effectuate other collective ends than the elimination of fossil fuels. While those other ends may also be obstructed or imperiled by the continued use of fossil fuels, using them to get leverage against global fossil fuel use is like using a lever to move a skyscraper. In theory, it certainly should work. In practice, it almost certainly won’t. The typical deflection of this pessimism is that “litigation” of the kind can galvanize and radicalize people—it can become its own causal force of change. And indeed it can. But the causal forces that litigation of this sort too often generates—even within single jurisdictions with agents who are relatively homogenous and, therefore, more predictable—are nothing like what its catalysts normally envision. They are multi-directional, unpredictable, and they too often spark equal, opposite forces that galvanize opponents.
In a chapter at the end of the collection surveying the different jurisdictional models, Hunter concludes that
[c]limate litigation is shaping the tone of the debate over climate science. In journalistic or political approaches to climate, the views of climate skeptics were previously given equal weight to the broad concensus views regarding science. In climate litigation forums, however, such skeptics may be asked to submit affidavits or even face cross-examination of their views. This ground-truthing of climate science may screen out and discredit those fringe scientists whose positions may not be able to withstand the scrutiny that comes from adversarial proceedings, particularly in domestic courts.
While I agree that “climate litigation” has certainly shaped the “tone of the debate over climate science,” I have to admit that I’m quite a bit less sanguine about that trend than Hunter. The emails snatched from CRU last year and published on the eve of COP-15—to say nothing of all the fallout since on everything from the Intergovernmental Panel on Climate Change’s uses of “gray literature” to the various ways in which climate scientists have begun devoting serious energy to debunking or even attacking their critics—are every bit the outgrowth of the litigious gestalt Hunter speaks of as anything more productive might be. One wonders whether litigation in advance of binding and specific norms isn’t just a really good way to make people into the hyper-strategic agents caricatured in most social science literature today.
Moreover, if climate litigation really were a form of “ground-truthing” with its own deterrent value to denialists or other cranks, then we should certainly be farther along in our evolution toward honest public debate about the norms of climate change and fossil fuels than we are. There has, by now, been a stunning amount of this litigation.
Has it enhanced or enriched or checked or disciplined our public discussion of fossil fuels? One would have to have a low opinion of the multi-billion dollar multinational enterprises so vitally dependent on the greenhouse gas status quo to think that. The indications from our law-making institutions—or, at least from the House and Senate—are all to the contrary.
A final chapter from Osofsky on the potential litigation holds for “rescaling” climate change politics asks whether subnational, national, and supranational “actually have meaning” (pp. 377-78). I have my doubts about these terms in the face of public problems like climate change. A status quo that must change is no proof at all that the questions now being litigated improve our chances of correctly “rescaling” our approach to catastrophic global climate change. And, only in a sort of footnote to the text—the last five paragraphs of a 385 page book—do any of the contributors stop to notice time scales as the counterpart of spatial scales. That is unfortunate. For if “we” owe it to future generations to act decisively against fossil fuels in the present, then “we” ought to think more carefully about our definitions of “immediate” and of “action” in choosing our steps against climate change. Part of that care would be a fuller grasp of how our norms are formed, reformed, specified, and hardened when they originate in litigious processes like adversarial hearings, trials, etc. A fuller grasp of how our norms form under these contentious pressures might lead us to view our “diagonal” institutions—our institutions linking subnational, national, and supranational officials into common agency, common plans, or at least common cause—as uniquely authoritative in problems like climate change. These concoctions join public officials into a new organizational matrix—one where a variety of spatial, temporal, and cognitive scales govern perceptions. Institutions like the Great Lakes Regional Collaboration, the Columbia Basin Fish & Wildlife Authority, the proliferating ranks of our many intergovernmental networks, ad hoc entities like the International Council on Local Environmental Initiatives (which Trisolini and Zasloff consider briefly), and even quasi-governmental networks like NatureServe have defied conventional political thinking and linked people with disparate incentives and imperatives into common agencies. The challenge today is ensuring that these agencies are given wider relevance and more legal and political authority to effectuate what they devise. For if we actually do achieve some kind of “transnational regulatory governance” of fossil fuel use and greenhouse gas emissions, it will be neither bottom-up nor top-down: it will be a synthesis of causes from many directions over time. Burns and Osofsky’s collection of papers sketch some stirrings in that direction. Real plans of the sort still seem to be on the distant horizon.
Jamison E. Colburn is a professor of law at Pennsylvania State University School of Law.