The role of climate change litigation in establishing the scale of energy regulation

This article argues that U.S. litigation over climate change shapes the scale at which energy regulation takes place and, in so doing, influences the sustainability of energy production and consumption. The resolution of these disputes and the resulting regulatory changes impact the scale of energy regulation because most of the cases focus on emissions from transportation or power plants, industries deeply involved in the production and consumption of energy. As these legal actions have grown from a few cases widely regarded as boundary-pushing oddities to over one hundred lawsuits under many different legal theories, their collective outcome plays an important role in the ways smaller scale regulatory action takes place. In so doing, these actions "rescale" energy regulation by mandating or preventing smaller scale regulatory action-local, state, or national-as part of overall approaches to addressing climate change. This article contributes to both the geography and legal literatures by considering how climate change litigation in the United States helps to address the multiscalar challenges facing the energy industry, and the ways in which fixed judicial structures provide a space for needed fluidity in the construction of multilevel approaches to sustainable energy production and consumption. In so doing, it connects the legal dynamic federalism scholarship with the geography literature on scale to demonstrate the constructive role that climate change litigation plays in crafting multilevel energy regulation and involving a wide range of multiscalar interests.