The Geography of Climate Change Litigation: Implications for Transnational Regulatory Governance

Abstract

ABSTRACT: This article aims to forward the dialogue about transnational corporate regulation by mapping the power dynamics that infuse litigation over energy production’s externalities and their implications for sovereign regulatory authority. The piece’s core argument is that appropriately constraining the externalities of energy production demands a nuanced, spatial understanding of the relationship among governmental regulatory entities, corporations, and the other actors that influence them. Part II begins by considering the multi-layered regulatory dilemmas posed by the transnational energy production process, the uncertain status of corporations under international law, and the law and economics debate over appropriate and effective environmental regulation by governments. Part III draws from geography to propose a model for mapping the litigative dialogue about the externalities of energy production that focuses on the relationship to place of key actors and of elements of claims. Parts IV through VI apply this model to litigation regarding global climate change occurring in sub-national, national, and intra-state regional and international fora in order to unravel the multiple forms of intertwinement among governmental and corporate entities that this litigation represents, as well as the regulatory mismatches that stymie it. The article concludes by exploring the implications of the landscape presented by climate change litigation. It argues that these spatial dynamics require a modernization of the Westphalian model, in which the nation-state must navigate among three intertwined axes: (1) multi-level: supra-national, national, and sub-national, (2) cross-cutting: executive, legislative, and judicial, and (3) infused: governmental and non-governmental. A focus on this three-dimensional model provides insights into future directions for thinking about how to locate corporations in the international legal system and to structure environmental regulation, as well as for the role of litigation to address energy production’s externalities.