International Consensus & U.S. Climate Change Litigation
December 1, 2008
William & Mary Environmental Law and Policy Review, Vol. 33, p. 177, 2008
This Article advocates greater use of the norms established in the United Nations Framework Convention on Climate Change (UNFCCC) and other components of the international climate change regime by domestic U.S. courts faced with issues arising from climate change. This argument develops from the rapid growth of international environmental law in recent decades, as well as the increasingly intertwined relationship of international and domestic legal systems in several issue areas.
Over the course of the nation's history, U.S. courts have regularly employed international and foreign sources. Dualist views of the U.S. Constitution have become predominant, however, and recent U.S. Supreme Court references to foreign and international sources in several human rights cases stirred exceptional controversy. The controversial nature of such citations in recent cases is unfortunate because it tends to obscure the value of domestic judicial interaction with international regimes.
U.S. courts are facing an increasing number of cases that address some aspect of the U.S. response to climate change. In virtually all of these cases, most notably Massachusetts v. EPA, courts have formally addressed only issues of domestic law. Nonetheless, the cases impact issues of global concern and are decided in the shadow of an international legal regime, especially given the United States' failure to adopt significant national climate change policies.
U.S. courts could enhance the value of their decisions, both domestically and in the international arena, by directly engaging international climate change norms. The UNFCCC's requirement that countries take measures to stabilize greenhouse gas concentrations, for example, is directly relevant to formally domestic cases decided by U.S. courts. Explicitly engaging the international norms where they are relevant would (1) enhance the United States' standing and influence in negotiations toward a post-2012 climate change regime, as well as promoting "soft power" in other areas, (2) benefit the international regime by providing a concrete application of its core precepts, (3) develop a baseline legal framework that would encourage consistency both within the domestic U.S. legal system and across domestic legal systems addressing the same threats, and (4) further the judicial role of providing a check on mixed national-international regulatory activities. In order to advance these goals, I outline one possible approach to incorporating international climate change norms into domestic U.S. cases.
Number of Pages in PDF File: 42
Keywords: climate change, Kyoto, UNFCCC, domestic litigation, international norms, environmental
JEL Classification: K32, K33, K41
Date posted: December 3, 2008 ; Last revised: November 18, 2010