The Intersection of Scale, Science, and Law in Massachusetts v. EPA
Hari M. Osofsky
University of Minnesota - Twin Cities - School of Law
Oregon Review of International Law, Vol. 9, 2007
ADJUDICATING CLIMATE CHANGE: SUB-NATIONAL, NATIONAL, AND SUPRA-NATIONAL APPROACHES, William C.G. Burns, Hari M. Osofsky, eds., Cambridge University Press, 2007
This essay analyzes the interaction of scale (in its many guises), science, and law in the Supreme Court briefs, oral argument, opinion, and dissents in Massachusetts v. EPA as a window into the role of the subnational in international law. At first blush, the choice of this case might seem counterintuitive. As a formal matter, the case primarily occurs at a national level. It involves a dispute over the interpretation of federal law that was heard by federal courts at every level. It is precisely this apparently "national" character of the case, however, that makes it a good example of the multiscalar dynamics of international decisonmaking. Despite the "formal" federal level of this case, both its actors and arguments have subnational and supranational dimensions that are deeply intertwined with the science of climate change.
Part II draws from Holly Doremus's work on the use of science as tool in and obstacle to regulatory approaches and from Nathan Sayre's analysis of the concept of scale to consider the particular challenges posed by the multiscalar context of climate change. Part III discusses the interaction of scale, science, and law in Massachussets v. EPA. Part IV examines the implications of that interaction for how this case should be fit into a model of international legal decisionmaking with respect to climate change. The piece concludes with broader reflections on strategies for improving the way in which courts engage the scale-science confluence.
Number of Pages in PDF File: 18
Keywords: massachusetts v. epa, climate change, international law, federalism, scale, science, regulation, geography, law and society, sociolegal, environmental law
Date posted: September 20, 2007