Feeling the heat? Climate change litigation in the 21st century.

Position:Proceedings of the 101st Annual Meeting of the American Society of International Law: The Future of International Law - Discussion

The panel was convened at 9:00 a.m., Thursday, March 29, by its moderator, Andrew Strauss of Widener University School of Law, who introduced the panelists: Darin Bartram of the Southern Corporation; William C. G. Burns of Santa Clara University School of Law; Don Goldberg of the Center for International Environmental Law; and Hari Osofsky of the University of Oregon School of Law. *

THE INTERSECTION OF SCALE, SCIENCE, AND LAW IN MASSACHUSETTS II. EPA

By Hari M. Osofsky ([dagger])

This presentation, based on my forthcoming piece, The Intersection of Scale, Science, and Law in Massachusetts v. EPA, took place days before the Supreme Court opinion in the case was issued. Given that timing, I have updated the talk slightly in this summary to incorporate the Court's decision into the analysis. (1)

INTRODUCTION

It is a tremendous honor and pleasure to be part of this dialogue. I would like to begin with an exchange that occurred between Justice Scalia and James Milkey, Assistant Attorney General of Massachusetts, during the oral argument in Massachusetts v. EPA, the first case heard by the U.S. Supreme Court on governmental regulation of greenhouse gas emissions.

Justice Scalia: But I always thought an air pollutant was something different than a stratospheric pollutant, and your claim here is not that the pollution of what we normally call "air" is endangering health .[Y]our assertion is that after the pollution leaves the air and goes up into the stratosphere it is contributing to global warming.

Mr. Milkey: Respectfully, Your Honor, it is not the stratosphere. It's the troposphere.

Justice Scalia: Troposphere, whatever. I told you before I'm not a scientist. (Laughter)

Justice Scalia: That's why I don't want to deal with global warming, to tell you the truth.

This interchange not only illustrates the complexities of judicial engagement with the science of global warming, but provides a window into one of the greatest obstacles to effective regulatory approaches to the problem of climate change. Namely, greenhouse gas emissions and their impacts are foundationally multiscalar.

My talk today analyzes the interaction of scale (which I will define more fully in a moment), science, and law in the Supreme Court briefing and oral arguments in Massachusetts v. EPA as a window into transnational regulatory governance of climate change. I will first discuss the science-scale intersection as an argumentative tool, then analyze the collision of scale and science in Massachusetts v. EPA, next consider implications for international legal decision-making, and conclude with some preliminary reflections on strategies for managing the confluence.

THE SCIENCE-SCALE INTERSECTION AS AN ARGUMENTATIVE TOOL

The paper upon which my remarks are based attempts to integrate the scholarly literature on the scientizing of politics with that on scale. Due to time constraints today, I will highlight the work of three scholars to discuss the science-scale intersection as an argumentative tool.

Holly Doremus's work provides important insight into the interaction between law and science. Her article, Science Plays Defense: Natural Resource Management in the Bush Administration, explains that the biggest difficulty regarding science and politics in natural resources management is not the politicization of science but, rather, the scientizing of politics. (2) Both conservationists and those who seek to block regulation can use science as a tool, and do so offensively and defensively. Moreover, as Doremus has explained, in the judicial context, the framing of science often is outcome-determinative.

Scale is a far more contested term than legal scholarship generally acknowledges. The interdisciplinary work on scale is rarely incorporated directly into analysis of cross-cutting problems. Such inclusion would provide important insights, however, as I will discuss.

Geographer Neil Brenner has summarized the various definitions of scale in recent geography scholarship: (1) "a nested hierarchy of bounded spaces of differing size"; (2) "the level of geographical resolution at which a given phenomenon is thought of, acted on or studied"; (3) "the geographical organizer and expression of collective social action"; and (4) "the geographical resolution of contradictory processes of competition and cooperation." (3) My talk presumes the second definition, and focuses on levels of geographical resolution.

Before moving on, though, I want to focus on Nathan Sayre's scholarship interweaving the work on scale in ecology and human geography. He argues that the lessons geographers can draw from ecologists are that it is critical to distinguish between scale and level, that rescaling processes are about jumping levels, and that hierarchical models...

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