Chicago Journal of International Law


As debates over the appropriate role of climate change litigation in regulatory governance become more intertwined with the ongoing fight over the future of international law, a systematic examination of how it fits into that discourse is critical. This Article attempts to begin that conversation by examining the ways in which geographic assumptions about nation-states influence narratives about how this type of litigation fits into an understanding of international law. Using Massachusetts v EPA as an example, it argues that interrogating those assumptions and their implications allows for clarification of the significance of climate change litigation crucial to making progress on how to regulate anthropogenic greenhouse emissions and their effects. More broadly, the Article uses the geography of climate change litigation in general, and of this case in particular, as a jumping-off point for more creative engagement of international legal dilemmas. This litigation raises core conceptual issues about the boundaries between domestic and international and between public and private. The story of this emerging transnational regulatory process will vary depending on base assumptions about what international law is and how it works. Moreover, as I have explored previously, the problem of greenhouse gas emissions is deeply intertwined with energy production and consumption and the complex state-corporate regulatory dynamics which govern that transnational industry. As examples from Iran's nuclear defiance to the threatened production stoppage in Alaska amply reveal, how law does and should engage the energy industry is intimately intertwined with critical national security concerns. In Spring 2007, the UN Security Council debated these linkages in the context of climate change for the first time. This Article's engagement of theoretical and normative questions thus aims to situate climate change litigation amid a complex of knotty legal and policy problems vexing the international legal community today. [CONT]