Climate Change Litigation, Obsession and Expertise: Reflecting on the Scholarly Response to Massachusetts v. EPA

• DOI: http://doi.org/10.1111/lapo.12006
• Published date: 01 July 2013
• Date: 01 July 2013
• Author: Elizabeth Fisher

Climate Change Litigation, Obsession and

Expertise: Reflecting on the Scholarly

Response to Massachusetts v. EPA

ELIZABETH FISHER

Climate change litigation is an obsessive preoccupation for many legal scholars.

Three different “narratives” can be identified for why scholars find such litigation

important to study: litigation is a response to institutional failure, legal reasoning

holds authority, and litigation is a forum for the co-production of facts and social

orders. The nature and consequences of these narratives are considered in the

context of the first U.S. Supreme Court “climate change” case—Massachusetts

v. EPA (2007). This analysis has implications for both how scholars understand

their expertise in this area, and how they should foster it.

When climate change litigation became a focus of legal scholarship I was

deeply sceptical about the value of such an academic endeavour. I saw it

as just another example of a preoccupation with legalism (Shklar 1986;

Abel 1980), legal centralism (Arthurs 1985), or scholars being “resolutely

single-minded [in the] pursuit of an end” (Feldman 1989, 503), in this

instance, environmental protection. Compared to other regulatory, legisla-

tive, and international law initiatives in relation to climate change, litigation

is relatively rare, ad hoc, and variable in terms of its issues and consequences.

Climate change litigation is also very much embedded in, and shaped by,

the legal culture the litigation is carried out in. Given these characteristics,

the “professional attention” drawn to climate change litigation is striking

(Freeman and Vermule 2007, 51). Indeed, it is fair to say that the literature

has an almost obsessive quality to it. To characterize the work as “obses-

sive” is not to suggest something anti-intellectual or unbalanced about it.

Rather the opposite. This work is “quality-driven” by a “relentless pursuit

of [scholarly] excellence” (Sennett 2008, 245) as there is an “intuition” that

by studying climate change litigation properly and carefully, “important

I am grateful to the frank and constructive feedback of the anonymous referees of this article, the

editors, and the attendees at the British Academy Workshop on Climate Change Litigation,

Policy and Mobilisation, April 26–27, 2012. Any errors or omissions remain my own.

Address correspondence to Elizabeth Fisher, Corpus Christi College , Oxford OX1 4JF, UK.

Telephone: (44) 1865 276 700; E-mail: liz.fisher@law.ox.ac.uk.

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LAW & POLICY, Vol. 35, No. 3, July 2013 ISSN 0265–8240

© 2013 The Author

Law & Policy © 2013 The University of Denver/Colorado Seminary

insights” might be gained “not only for how climate change policy is likely to

evolve, and for who is likely to shape it, but more generally for the role of the

courts in public policy governance” (Markell and Ruhl 2012, 19).

In this article, I consider what drives scholarly interest in climate change

litigation and the implications for the legal expertise that is brought to bear

on climate change policy. To do so, I focus on the scholarly responses to the

U.S. Supreme Court decision of Massachusetts v. EPA (2007). This judgment

was the first Supreme Court “climate change” case, and it concerned whether

the U.S. Environmental Protection Agency (EPA) had authority to rule that

section 202(a)(1) of the Clean Air Act did not provide the agency with power

to regulate a range of gases that are understood to contribute to climate

change. While the case is a product of a particular legal and factual context,

it is also an exemplary example of a “climate change” case in that it is a

judicial review challenge to administrative action brought by litigants

wishing to compel public action in relation to climate change (Lin 2012, 41;

Markell and Ruhl 2012, 74). The scholarly response to it thus raises many,

albeit not all, of the responses seen in other climate change cases. A study

of that literature shows not only the complex interface between the problem

of climate change and legal institutions, but more importantly, the need for

legal scholars to reflect upon their expertise and to develop it. The “quality-

driven” obsession of scholars is driven by the realisation that climate change

is an issue that creates new and valuable intellectual challenges for scholars.

The article is structured as follows. First, I provide an introductory

sketch of the scholarship relating to climate change litigation. A study of the

academic literature highlights three overlapping narratives that scholars

have developed to explain why climate change litigation is important: it is a

response to institutional failure, judicial reasoning provides authority for

acting in response to climate change problems, and litigation is a forum for

co-producing a physical and social understanding of climate change. In the

second part, I then consider Massachusetts v. EPA (2007) in detail. A study

of the judgments in the case and the scholarly response to it, highlight that the

three reasons examined in the first part are more multifaceted and complex

than they initially look. In the final part, I argue that my analysis points

to the need for scholars to think carefully about how they develop their

expertise.

Four points should be made before starting. First, an underlying assump-

tion in this article is that anthropogenic-induced climate change is a problem

that needs a human response. Second, due to space, this article does not

attempt to be an exhaustive analysis of the climate change litigation

scholarship. My focus is primarily on literature written by common law legal

scholars, and I have chosen to focus on Massachusetts v. EPA (2007) because

it has been one of the most high-profile cases in recent years (Markell and

Ruhl 2012). The reasons for this choice will be discussed below in more detail.

Third, and following on from this, nothing in this article should be taken

as usurping current scholarship. Quite the opposite. And just as Bogojevic´

Fisher REFLECTING ON THE SCHOLARLY RESPONSE 237

© 2013 The Author

Law & Policy © 2013 The University of Denver/Colorado Seminary