Law and the Climate Crisis with Hari Osofsky
Righting injustices in energy and climate change regulation is an important part of addressing the global climate crisis. This episode explores how business, government and nonprofit leaders can work together to make bipartisan progress on climate, energy and equity issues.
The guest on this episode is Hari M. Osofsky, dean and Myra and James Bradwell Professor of Law at Northwestern Pritzker School of Law and Professor of Environmental Policy and Culture (courtesy) at the Weinberg College of Arts and Sciences.
- Osofsky’s work as a leading scholar of and contributor to public policy work on energy transition and climate change
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Read the transcript of this show below
Annelise Riles [00:00:04] Welcome to the Breaking Boundaries podcast. I'm Annelise Riles, executive director of Northwestern University's Roberta Buffett Institute for Global Affairs. The Northwestern Roberta Buffett Institute is dedicated to bringing together the brightest minds from around the world to address critical global challenges that can't be addressed from any singular disciplinary or cultural perspective. And today we're talking about the challenges associated with doing this kind of boundary breaking work where boundary breaking ideas come from and how we train ourselves to produce them. Today's guest is our newest affiliated faculty member, Dean Hari Osofsky Harris, the dean of Northwestern University's Pritzker School of Law, where she also serves as the Myra and James Bradwell, professor of law. Hari is also a professor of environmental policy and culture at Northwestern's Weinberg College of Arts and Sciences with a Ph.D. in Geography from the University of Oregon and a J.D. from Yale Law School. Hari is an expert in climate change, law and environmental justice law, and she's authored over 50 publications focusing on improving governance and addressing injustice in energy and climate change regulation. Welcome Hari and thank you so much for being here.
Hari Osofsky [00:01:27] Thanks so much. It's a pleasure to be on with you.
Annelise Riles [00:01:29] So, Hari, where does your interest and passion for climate change come from?
Hari Osofsky [00:01:37] So when I was trying to decide whether to go to law school in my 20s, I did a lot of soul-searching about what was important to me. And that's really where I came up with my two career goals, which is that I wanted to leave the world a little better than I found it and do work that felt meaningful. And those sound very simplistic. But it turns out they've been pretty good gut checks throughout my career about whether I'm interested in particular roles. I use those guiding principles to think about why I might want to go to law school and decided to go because I wanted to work on the intersection of environment and human rights and trade and development and sustainability and that whole mess of issues. And my first year of law school, Ken Saro-Wiwa, who was a lawyer and poet and environmental activist in Nigeria, was one of several people executed by the Nigerian government, and I had the opportunity to work on the human rights case that was brought against Shell Oil to think about whether environmental rights claim in the context of that case made sense. And so that work that I did really got me very interested in environmental rights. And then after I graduated law school, I clerked for a year with Judge Dorothy Nelson, which was an extraordinary experience. She's really been such a mentor and a role model after the clerkship ended up deciding to work with Center for Law in the Public Interest, where I did a range of civil rights impact litigation, but about half my work was on environmental justice. I had personal reasons. I needed to be in Los Angeles at the time and and so I decided to focus in on the domestic analog of the environmental rights work I was doing. So those were really the things that that frame my work. It was a year I spent in China teaching U.S. civil rights law and helping to start a labor law clinic where my first day of teaching civil rights law in China was 9-11. That convinced me that I can make a difference through academia.
Annelise Riles [00:03:30] Your background is so interesting. You were already a professor of law when you decided to complete a Ph.D. in geography. It's a gutsy thing to do, and maybe even something that some people would say you didn't have to do. Given where you were in your career. So, tell us about that. What drew you to geography? What do you think we can see by adding geography that we can't see with law alone?
Hari Osofsky [00:03:52] My path was certainly a little bit unusual. We're the only country in the world that kicked geography out of many of our elite liberal arts institutions, and as a consequence of that, it started with Harvard in the mid in 1948. And by the time I was at Yale for undergrad and law school, it was long gone, and it was gone from Yale in the 70s. And so, when I was exposed to it at the University of Oregon by my mentor, Keith Aoki, I basically realized I had been trying to create a discipline my whole career that already existed. And a number of people thought my idea of getting a Ph.D. while being a pretend your junior faculty member was a little crazy. But because I had done no coursework in it, I felt like it was really important for me to do the coursework too, that I couldn't just read some things. To me, what geography brings to thinking about climate change is twofold. So, geography is one of the only disciplines that bridges the heart and the social sciences, right? It does something similar to what history does with time, except it does it with space and scale and place. It's it's linking a lot of topics that would normally be in a discipline by using those vectors. And so, in particular, I found that on the human side of geography, some of the literature on scale really informed the thinking that I wanted to do about federalism and multilevel governance. And then on the hard science side, I was able to take courses in climate change science with a climate scientists. And I think that one of our challenges at the interface of law and stem not just with respect to climate change, but with health and with intellectual property and cybersecurity, is that we often end up with people who are making law who. Don't have enough grounding in the underlying science and technology, and so I felt like it's really informed my work on climate change to have had that opportunity to take these courses in climate change science.
Annelise Riles [00:05:52] When we think about law and STEM, which I know is a space you've been really championing, both here at Northwestern and in your previous positions. This is really boundary breaking work. It's hard to do, and yet it's so clearly necessary. So, can you tell us what and from your experience are the challenges? Why is it so hard to get people working at the intersection of these fields? And what can we do about it?
Hari Osofsky [00:06:16] That's such an important question, because I think it's crucial to our making progress in these areas. So, it was when I was running the joint degree program in law, science and technology at Minnesota that I first started to realize it wasn't just a problem I was seeing in climate change and energy but was one that was cross cutting the interface of Law and STEM. It was a program where we'd have these speakers in different areas. And as I began to listen to the problems coming up in how far in cybersecurity, I realized they were the same problems I was seeing. They had to do with this problem of our regulatory system not being well-designed to deal with fast moving science and technology had an opportunity as I was first entering my deanship at Penn State to really think about this in a pilot project that we did around methane emissions from unconventional oil and gas, which was one of the most contentious energy issues in Pennsylvania at the time. And so, we brought together an interdisciplinary group of people, as well as people from industry, people from environmental organizations and a bipartisan group from government, and asked them the question If you took the latest science and technology coming out of Penn State and elsewhere, could you come up with something that's better for the environment and better for business? Are there win wins that we haven't really thought through because we haven't taken this interdisciplinary approach? And so, to me, the exciting things that can happen at the interface of this work, sometimes you can embody disciplines in one person, but a lot of times you have to bridge and talk across it. And I know when I was first doing work in law, geography, geographers would often find my law work jargony. Lawyers would find my geography work jargon. They had to figure out how to find a common language to talk across them. Similarly, at Penn State, when we were building our collaboration in law, policy and engineering. We realized, I mean, all these disciplines law, international affairs and engineering. They were all practical disciplines, but their disciplinary norms were so different from one another. The scales of the units were very different from one another. And so, when we started to think about what a joint degree would look like about what joint research would look like, we had to find ways to to bridge all of this. The strategies that I found are most successful over time, and I'm super excited at Northwestern. We've just created with permission from the provost, a new associate dean for innovation and partnerships with Laura Farina Pedraza is going to be in the inaugural rollout, but the idea is we're going to work from the law school to build bridges across Northwestern. And as you know, two of the five hires that we're looking to make this year are joint hires, one with the Buffet Institute and one with the medical school. So, I think part of what you do is through joint hiring, through getting law schools involved in projects that go across the university and really finding these opportunities to bring law together with other disciplines in ways that are needed to solve societal problems.
Annelise Riles [00:09:04] We're recording this just a couple weeks before COP26 and as you know, Northwest and Buffett is sending a delegation which includes some of the Pritzker faculty. So, I'm interested to know as an expert in this field how you think about the COP26 framework, the Paris Agreement and what kind of hope you place in this framework for addressing climate change.
Hari Osofsky [00:09:29] So for those unfamiliar with our framework protocol approach that we take to a lot of international environmental agreements, including climate change, the way I like to think about it is it's easy to get a lot of people to agree to, not very much, and it's hard to get them a lot of people to agree to something very specific. And so, what we tend to do is we create these broad framework agreement that don't have a whole lot of binding specific obligations. And then we fill in the specific obligations with protocols, often with a subset of those nations involved. Though the Paris Agreement actually is a very, very broad agreement, too. So, one of the difficulties that plagued climate change negotiations from the start in this framework protocol approach was a difference in opinion between nation states about whether there should be a two track or one-track approach to solving the problem of climate change. So, in other words, there was always an understanding that the international law principle of common but differentiated responsibility should guide these efforts so that developed country major emitters who are historically emitting much more and still have higher per capita emissions bear more responsibility. And so, the Kyoto Protocol was really designed along those lines, it was really a protocol designed for the major developed country emitters to make targets and timetable commitments. The difficulty that the Kyoto Protocol faced was that because of the way the United States ratifies treaties and its Senate, it was impossible that it was ever going to get ratified under the the political circumstances. At the time, the United States did something which it has a long history of doing in international agreements, not just in climate change, which is that it was very, very active in shaping the agreements. In fact, its interests and emissions trading as part of how the European Emissions Trading System developed, but then ultimately was unable to join the agreement. And that created a bit of a crisis as to whether it could still come into force without the United States. It ultimately did, but its impact was obviously limited significantly by the fact that you didn't have the biggest developed country major emitter part of this agreement. Over time, they began to think about whether you could have a unified one-track approach agreement and the idea that that started to emerge at Copenhagen and ultimately provided the scaffolding for the Paris Agreement was this idea that you could build two international commitment out of voluntary national commitments, which we call under the Paris Agreement nationally. Determined Contributions. So, the idea underneath the Paris Agreement is that different countries are going to have different commitments. So, we're going to respect this common but differentiated responsibility. But all of the countries are going to ramp up their ambition over time. And so, when we look to COP26, of course, it's the first cop in a while in which the United States is a really active participant. So, I was there in Paris when the United States delegation walked into a standing ovation as part of the High Ambition Coalition, something I thought I would would never see. And obviously, not so long after that, there is a presidential election in which President Trump won. He indicated his intention to withdraw from the Paris Agreement. And so, the questions that it existed at Paris about, well, we have these ambitious goals, but we have a huge gap. We're nowhere close to meeting our goals of keeping warming to under two degrees as the primary goal and aspirationally 1.5 degrees, we weren't anywhere close. The difficulty, of course, is that the United States backslid over the period of the last four years. And so now again, you have an administration that's ambitiously committed to being an active partner in ramping up the ambition of this agreement. And so, I think the question for COP26 is the goal of it is going to be to ramp up ambition. But there are a lot of question marks still about how much ambition they're going to be able to get to in this meeting. I don't think there's a lot of optimism that this meeting will get us to the point at which the commitments are getting us to the goals of the Paris Agreement yet.
Annelise Riles [00:13:36] So that brings us to litigation. So, you've written a lot recently about the role of plain old corporate litigation in addressing climate change issues not only in the North, but also in the global south. So, what do you think? Does litigation fill in the gaps? Should we be more hopeful about the prospects of litigation addressing some of these challenges?
Hari Osofsky [00:13:57] So I first started looking at climate change litigation. That's about a decade and a half ago now when it was in very early stages. I assisted with the Intuit's petition to the Inter-American Commission on Human Rights. There was claiming U.S. climate policy at the time violated their rights. And as I worked on this petition, because my primary focus until then had been on environmental rights and environmental justice work, I realized that there was were all these lawsuits emerging about climate change and nobody was yet talking about their regulatory role. And I was a very junior professor at the time, so I remember when I gave my first flakes, my second faculty workshop on this, and I had a senior person say to me, Don't you know that climate change is about treaties? Why are you talking about litigation? So, there was a lot of skepticism at the time that the sort of idea that I was playing with through talking about litigation of kind of the multilevel nature of addressing climate change was not the conventional thinking at the time. It was really that it's this top-down treaty-based approach. Now treaties are, of course, very important. But what litigation does is that it serves in this important role of pushing for and against regulatory approaches. I think it's important to understand that not all litigation is pro regulatory, though. So, what you tend to see are patterns of litigation being more pro regulatory when you have an anti-regulatory government under the Bush administration, under the Trump administration, you saw a lot of litigation that was very pro regulatory. But when you have a very pro regulatory federal government, then you tend to see more anti-regulatory litigation, such as under the Obama administration says we're already starting to see under the Biden administration, the United States has far more litigation than anywhere else in the. A world, in fact, I have to every time I give a presentation on climate change, I have to like check my numbers again because it gets out of date literally every week there's new cases filed. I mean, it's really extraordinary that the pace at which climate change litigation is developing. So, at this point, the last time I checked the numbers, we were at one thousand four hundred and eight cases filed in the United States and 499 filed in other jurisdictions there. 29 countries, plus the European Union and other regional and international tribunals across six continents have heard these cases, so they've really grown and developed over the last decade and a half in terms of a major force in the dialog about climate change. The vast majority of all lawsuits are statutory lawsuits. These are lawsuits pushing how we interpret a statute the most famous of of the U.S. cases. This is the first U.S. Supreme Court case Massachusetts v. EPA, in which the Supreme Court found that the United States either needed to regulate greenhouse gas emissions from motor vehicles are justified better. Why it wasn't A big portion of the cases in the United States are much smaller cases over coal-fired power plants and in particular, the environmental review process over them. That's a pattern that we've seen in a lot of cases globally are these cases around environmental review processes and how climate change fits into them, particularly in the context of coal fired power. That was sort of a dominant theme in Australian cases and in a number of other jurisdictions has emerged. There's also an emerging trend of human rights and constitutional rights avenues. We've not had really successful cases along those lines in the United States, but in Europe, the landmark case or agenda versus Netherlands that the Supreme Court ultimately upheld a District Court ruling that the Dutch government violated its duty of care to its citizens to protect against climate change by not having an ambitious enough policy and required the government to reduce its greenhouse gas emissions by 25 percent by 2020 compared to 1990 levels. And then, as you mentioned, there's been kind of emerging litigation around the world, including in the global south. When Pakistan, there was a really groundbreaking case in which the court found a breach of citizen's fundamental constitutional rights, including the right to life, due to the government's failure to to fully implement its adaptation efforts in South Africa. There was one of these environmental assessment cases that I was talking about before in the Philippines. There's a really interesting complaint before the Commission on Human Rights regarding human rights violations by the 50 largest fossil fuel companies and then the vast majority of cases have been about mitigation. But there's been an emerging body of cases on adaptation as well
Annelise Riles [00:18:36] Are plaintiffs winning in some of these cases?
Hari Osofsky [00:18:37] In some of these pro regulatory cases, I mean, in the United States, of course, the the biggest example is Massachusetts EPA. But there have been a number of other successful actions in the United States and in these other jurisdictions. So, in terms of answering your question about kind of the regulatory role of all of this, what I would say is climate change litigation. And I really want to acknowledge Jackie Peel at the University of Melbourne, my longtime collaborator on this work. We would both say climate change litigation is is a piece of the puzzle, but it's not the solution. So, I think that it is one of many strategies that can potentially help us make progress on addressing this problem of climate change, which we urgently need to make progress on and are far from doing what we need to do on. But litigation alone is not going to get us there.
Annelise Riles [00:19:24] Well, then what role do you see for social movements?
Hari Osofsky [00:19:27] So one of the things we've done in our work studying the regulatory role of climate change litigation is we've looked at both the direct effects, right? So, what happened as a result of this decision directly legally? But we've also thought about the indirect effects. So how has it changed social norms and values? How has it increased costs and risks? And what difference has it made in corporate, individual and NGO behavior? And so, you know, a great example of where you see sort of social movement coming together with litigation has been in the context of coal fired power plants, right? So, you have a big campaign against coal happening in sort of social movement, but at the same time had litigation in which the cost of coal was being brought up by these little lawsuits around each coal fired power plant and environmental assessment. Now what makes that story even more complicated, though, was those two things were happening at the same time as the technology of hydraulic fracturing paired with horizontal drilling made natural gas much cheaper. And so, one of the things that also put pressure on coal, arguably at least as big a factor as either the social movement or the litigation was this technology change that really changed the sort of the market and physical resources. And so, I think. Are examples an important one, because when we think about the role each of these things play it, it's a very complex context. And so, each of these things can make a difference, but it's important to recognize that they're part of a bigger picture.
Annelise Riles [00:20:53] So interesting and a great example of why you need to understand the law, the culture and the technology to make progress on this kind of problem. My last question, as always with this podcast, is what you are most worried about at this moment and what gives you hope
Hari Osofsky [00:21:12] in the context of climate change? The thing that worries me is that we're still so far from making the progress that we need to hit the goals of the Paris Agreement if we're going to limit how much impact climate change has on people. We have to get closer soon. One of the things that's increasingly become part of climate change negotiations has been this idea of loss and damage that that there are some impacts that are so great that you can no longer adapt to them, and we really have to think about compensation. What worries me is whether we as a global community and whether we in this country can really be creative and committed enough to get to where we need to go in solving this problem. I think what gives me hope in the context of climate change is multifold. The United States, which is the second biggest greenhouse gas emitter in the world and the largest developed country greenhouse gas emitter, is once again part of the Paris Agreement and taking ambitious steps. There's currently legislation pending before the United States Congress. It's quite ambitious. It's unclear what's going to happen with it. It's a moment at which in order to really make progress on climate change, it's very important what some of the biggest emitters do. So, what China does is very important. What the United States does is very important. And so having the United States back as part of this, this high ambition group is really critical to our getting anywhere near these goals globally. I think the other thing that gives me hope is the next generation. When I look at our law students, when I look at undergrads, when I look at my children, I see a fluency and understanding of the importance of these issues that makes me think that we will make progress on them.Annelise Riles [00:22:55] That's really inspiring. Thank you so much for being with us today. Thank you for having me. For more information on this episode and on the Northwestern Buffett Institute for Global Affairs, visit us at buffett.northwestern.edu.