Fostering Diagonal Regulatory Initiatives
Hari M. Osofsky
University of Minnesota - Twin Cities - School of Law
September 5, 2008
RECALIBRATING THE LAW OF HUMANS WITH THE LAWS OF NATURE: CLIMATE CHANGE, HUMAN RIGHTS, AND INTERGENERATIONAL JUSTICE, p. 80, Burns H. Weston and Tracy Bach, eds., Climate Legacy Initiative, 2008
The structure of law poses a fundamental difficulty for effective regulation of multiscalar, intergenerational problems like climate change; law’s scale is sticky despite the fluid scalar nature of greenhouse gas emissions and impacts. In other words, we have subdivided law into levels of governance - a sensible idea for creating order and administrability - and formal regulation tends to happen within the fixed frames of those structures. As a result, we generally approach regulation as choosing or coordinating among those levels.
The current policy debates over climate regulation reflect those constraints. As a range of individuals and entities work to develop the next major treaty on climate change and to determine appropriate executive and legislative action at national and subnational scales, consistent interaction across levels and branches of government is often quite limited. For example, local governments are working in transnational coalitions, but those cities and counties rarely have a meaningful place at the table in treaty negotiations. As the U.S. Congress continues to explore major legislation, it is unclear the extent to which proposed statutes will attempt to preempt smaller scale efforts and litigation.
This Recommendation argues for the importance of exploring the possibilities and limitations of what it terms diagonal regulatory strategies, ones that cut across vertical and horizontal levels of government. It claims that more such approaches are needed to address this problem effectively, and in so doing limit its impact on future generations. Part I describes climate change as a multiscalar, intergenerational regulatory problem that current efforts are not addressing adequately. Part II discusses the context of current U.S. legislative debates as a practical example of the vertical, horizontal, and socio-cultural forces that impact potential statutory schemes. Part III introduces diagonal regulatory strategies as a possible mechanism for moving the policy dialogue forward. The Recommendation concludes by reflecting upon the next steps needed to address this spatially and temporally cross-cutting problem at the intersection of law and science.
Number of Pages in PDF File: 22
Keywords: climate change, regulation, diagonal, federalism, obama, environmental law
Date posted: July 15, 2009