The Intersection of Scale, Science, and Law in Massachusetts v. EPA

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

18 Pages Posted: 20 Sep 2007  

Hari M. Osofsky

University of Minnesota - Twin Cities - School of Law

Abstract

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.

Keywords: massachusetts v. epa, climate change, international law, federalism, scale, science, regulation, geography, law and society, sociolegal, environmental law

Suggested Citation

Osofsky, Hari M., The Intersection of Scale, Science, and Law in Massachusetts v. EPA. 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. Available at SSRN: https://ssrn.com/abstract=1014905

Hari M. Osofsky (Contact Author)

University of Minnesota - Twin Cities - School of Law ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

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