Climate Change Litigation's Regulatory Pathways: A Comparative Analysis of the United States and Australia

• DOI: http://doi.org/10.1111/lapo.12003
• Date: 01 July 2013
• Author: Hari M. Osofsky,Jacqueline Peel
• Published date: 01 July 2013

Climate Change Litigation’s Regulatory

Pathways: A Comparative Analysis of the

United States and Australia

JACQUELINE PEEL and HARI M. OSOFSKY

This article provides a critical next step in scholarship on climate change litiga-

tion’s regulatory role. It creates a model for understanding the direct and indirect

regulatory roles of this litigation. It then applies this model to the United States

and Australia, two key jurisdictions for climate change lawsuits, in order to

explore the regulatory pathways that this litigation has taken, is taking, and likely

will take. This analysis helps to illuminate the ways in which litigation inf‌luences

regulation and forms part of climate change governance.

I. INTRODUCTION

Climate change litigation, in a range of forms, and brought in a multitude of

forums (Preston 2011a, 2011b), has captured the attention of the public and

policymakers, and is the subject of a rapidly developing body of academic

literature (e.g., Lord et al. 2012; Burns and Osofsky 2009). As a growing

number of lawsuits over climate change have been f‌iled in courts around the

world in the past f‌ifteen years—two of which resulted in high-prof‌ile U.S.

Supreme Court judgments—a “f‌irst wave” of scholarship has chronicled

individual cases or developments in particular jurisdictions, and a “second

wave” has sought to systematize the case law by looking for patterns or

trends and developing typologies to understand and categorize disparate

actions. This article provides a critical next step in a “third wave” of schol-

arship on litigation’s regulatory role through (1) its framing and exploration

of the pathways by which climate change litigation both inf‌luences regulation

and acts as regulation, and (2) its comparative application of that model to

the United States and Australia. The resulting conceptual map of regulatory

This article is based on a paper delivered at a Workshop on Climate Change Litigation, Policy

and Mobilization held at the British Academy, London, April 26-27, 2012. The authors would

like to thank the workshop participants and organizers, and anonymous reviewers for their

helpful comments and feedback which have informed the subsequent development of this article.

Address correspondence to Professor Jacqueline Peel, Melbourne Law School, 185 Pelham

St., Parkville VIC 3010, Australia. Telephone: (61) 3 8344 1115; E-mail: j.peel@unimelb.edu.au.

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

© 2013 The Authors

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pathways for climate change litigation includes a typology of the direct and

indirect ways1in which litigation plays a regulatory role and forms part of

climate change governance.

While climate change litigation is a phenomenon that extends beyond

the United States and Australia, the volume and impact of the litigation

there make comparative analysis of their contribution particularly important.

First, these countries—which both have federal systems of government—

provide case examples for evaluating climate change litigation’s constructive

inf‌luence upon regulation. Beyond the fact that the United States and Austra-

lia have been sites for a tremendous amount of litigation, and so contain

signif‌icant data to analyze, they also are both major emitters, with signif‌icant

investments in coal and other fossil fuel resources, and have been slow to act

at international and national levels. Although Australia has surpassed the

United States in recent years by becoming party to the Kyoto Protocol and

implementing national climate change legislation (Caripis et al. 2011), litiga-

tion has played a signif‌icant role in shaping the regulatory landscapes of both

of these common law jurisdictions.

Second, comparative analysis contributes to a richer understanding of

litigation-regulation linkages by illuminating the extent to which litigation’s

regulatory pathways are jurisdiction specif‌ic (i.e., tied to a particular legal

culture and structure). Where the course of climate change litigation is

heavily inf‌luenced by the prevailing legal norms and patterns, those details

need to be taken into account in examining where litigation has, and likely

will have, the most regulatory inf‌luence and the nature of that inf‌luence.

Conversely, if litigation is not so dependent upon the prevailing legal culture

and structure, then a comparative understanding of climate change litiga-

tion’s regulatory pathways has the potential to change the future course of

litigation by assisting cross-jurisdictional learning. Our analysis of U.S. and

Australian case law suggests that while legal culture and structure play an

important role in shaping the avenues by which climate change litigation

inf‌luences and serves as regulation, there are also noteworthy commonalities

in their experiences that serve, more generally, to clarify the nature and

contours of the interaction between climate change litigation and regulation.

The remainder of the article is divided into two parts. Part II elaborates

our working def‌inition of climate change litigation and proposes a model for

understanding its interaction with regulation. Part III applies this model to

the U.S. and Australian contexts by analyzing the ways in which litigation

and regulation interact at international, national, and subnational levels in

both countries. These interactions reveal a multilevel map, in which simul-

taneous interactions between litigation, regulatory efforts, and behavioral

and cultural change at different levels of government shape regulatory

options and outcomes. The article concludes by exploring convergences and

divergences between the two jurisdictions and the implications for how

climate change litigation has already, and might further, inf‌luence efforts to

address this problem more effectively.

Peel and Osofsky LITIGATION’S REGULATORY PATHWAYS 151

© 2013 The Authors

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

II. REGULATORY PATHWAYS THROUGH CLIMATE CHANGE LITIGATION

Climate change has been aptly described as a “super-wicked” problem—

one that is not only enormously complicated, but also poses problems of

timing, incentives, and massive scope (Lazarus 2009). Because climate change

involves emissions and impacts in multiple countries and a global atmo-

spheric process, nation-states have responded to it with a multilateral treaty

regime, the United Nations Framework Convention on Climate Change

(UNFCCC) and additional agreements negotiated under it (UNFCCC

1992).

However, two signif‌icant challenges limit the treaty regime’s ability to

serve as the primary regulatory approach to climate change, both of which

help to establish a regulatory role for litigation. First, the existing regime

and negotiations are failing to achieve their goal of mitigating emissions

adequately. Even with the advances made at the 2011 and 2012 negotiations

in Durban and Doha (Durban Platform 2012; Outcome Decision 2012a,

2012b), current international-level efforts to address climate change are not

reducing emissions at the rates scientists say are needed to avoid dangerous

levels of warming (UNEP 2011). This failure creates a regulatory gap that

climate change litigation attempts to address.

Second, and perhaps more fundamentally, climate change is a problem

that interacts with many levels of government and types of law and involves

a wide range of public and private actors. Even a more effective treaty regime

would struggle to capture the ways in which both mitigation and adaptation

require regulatory interactions among public and private stakeholders at

individual, local, state, national, and interstitial regional scales. An emerging

scholarly literature, drawing especially from legal pluralism and polycentric

governance (Rayner and Jordan 2013; Aligica and Tarko 2012; Levi-Faur

2012; Black 2008), conceptualizes what a governance model that incor-

porates these interactions might look like (Peel, Godden, and Keenan 2012;

Cole 2011; Andonova and Mitchell 2010; Ostrom 2009; Osofsky 2007;

Bulkeley and Betsill 2005; Osofsky 2005). Such models, with their more

inclusive view of governance, help to foster inquiries into how mechanisms

outside of treaty negotiations, like litigation, form part of the regulatory

process. Litigation in this conception forms an integral component of climate

change governance, providing a mechanism for f‌luid multilevel interests to

interact among relatively f‌ixed legal structures. This part draws from these

inclusive conceptual approaches to propose a schema for understanding the

regulatory inf‌luence of climate change litigation.

A. A DEFINITION OF CLIMATE CHANGE LITIGATION

Before turning to an analysis of the pathways by which climate change

litigation can inf‌luence regulation and serve in a regulatory role, we f‌irst

consider the def‌initional question of what constitutes “climate change

152 LAW & POLICY July 2013

© 2013 The Authors

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