This panel was convened at 11:30 am, Thursday, April 4, by its moderator, Elliot Diringer of the Centre for Climate and Energy Solutions, who introduced the panelists: Edward Cameron of Business for Social Responsibility; Michael Levi of the Council on Foreign Relations; Hari Osofsky of the University of Minnesota School of Law; and Jacqueline Peel of the University of Melbourne Law School. *
THE COMPLEXITIES OF MULTIPOLAR APPROACHES TO CLIMATE CHANGE: LESSONS FROM LITIGATION AND LOCAL ACTION
By Hari M. Osofsky ([dagger])
Climate change is a complex, multi-level problem which law struggles to solve adequately. My remarks focus on two case studies of multipolar approaches to addressing climate change in order to explore both the constructive contributions and their limitations. I begin by examining climate change as a multidimensional governance problem. I will then examine litigation as a regulatory driver in a multipolar system, using U.S. climate change litigation as an example. Next I will consider the possibilities and limits of voluntary networks of localities with a focus on the Twin Cities in Minnesota. I will conclude with reflections on future possibilities for multipolar climate change governance.
The primary approach to addressing climate change through law fails to engage its complex, multi-scalar geography. Because climate change clearly has global dimensions, nation-states have tried to solve it through a multilateral climate change regime that consists of the United Nations Framework Convention on Climate Change (UNFCCC) and agreements negotiated under that convention. (1) This dominant intemational-law-focused approach to climate change faces two difficult geographical challenges that undergird my analysis. First, and least problematically for an account in which we solve "global" problems through international treaties, this scale-matching approach is not adequate on its own to solve the problem. The existing regime and negotiations are struggling to achieve their goals and seem unlikely to achieve adequate mitigation in the timeframe scientists suggest is needed to avoid the worst impacts of climate change. (2) Second and more fundamentally, there is a great deal of activity with legal significance on climate change outside of the UNFCCC structure. Some of this activity includes a wide range of additional formal international legal agreements among nation-states, but there are also many less formally binding agreements and interactions among nation-states and among a broader range of other governmental and nongovernmental entities. As relevant entities and individuals help to constitute, and are influenced by, multiple levels of governance, they shape climate change mitigation and adaptation in fundamental ways that an analysis focused only on the treaty regime cannot fully capture. (3)
The regulatory dynamics regarding climate change litigation illustrate the ways in which governmental and nongovernmental stakeholders at multiple levels interact outside of the international treaty regime. Over the past decade, there has been an explosion of lawsuits around the world regarding climate change mitigation and adaptation. In the United States, these suits have had a particularly significant direct regulatory role due to the lack of comprehensive climate change legislation. The U.S. Supreme Court's decision in Massachusetts v. EPA has served as the basis for Environmental Protection Agency regulation of greenhouse gas emissions of both motor vehicles and stationary sources like power plants under the Clean Air Acts. In addition, lawsuits under additional statutes and common law in state and federal courts have addressed a broad range of concerns relating to climate change. These lawsuits do not interact formally with the UNFCCC process--although the Obama administration did reference its regulation pursuant to Massachusetts v. EPA at the Copenhagen negotiations which took place just after legislation had failed again--but help to shape efforts on climate change at the individual, local, state, national, international, and interstitial regional levels. Jacqueline Peel and I are in the process of mapping this litigation's direct and indirect regulatory role for a forthcoming book on U.S. and Australian climate change litigation through in-depth interviews with key stakeholders. (4)
Efforts by cities to address climate change provide a second example of the ways in which a multipolar analysis better captures critical regulatory interactions. As international negotiations continue to fail to produce an adequate response to climate change, a growing number of cities--including many small suburban cities--are playing critical roles in multilevel efforts to address climate change. They influence the language in the climate change treaty negotiations, form their own transnational...