International Law and the Legitimate Determination of Risk: Is Democratising Expertise the Answer?

As technological risks become a matter of increasing concern around the world, standard science-based approaches for risk assessment are coming under increasing pressure to be responsive not only to expert views, but also broader public perspectives on risks and concerns over possible uncertainties.  International fora in which national risk regulations are reviewed for their scientific adequacy, such as WTO dispute processes under the SPS Agreement, have become the focus for debates over whether such processes allow adequate scope for “democratic” risk concerns as well as scientific views.  This article assesses the scope for democratising expertise in international risk determination, using reforms suggested in the context of WTO SPS disputes as a case study. It contends that the institutional ramifications for international law of “democratising expertise” are far from clear, especially given the obstacles encountered in establishing democratic procedures for transparency and participation at the global level.  This is not a reason to abandon efforts for greater democratisation of supranational risk determination but points to the need for more nuanced approaches for balancing scientific and political concerns in risk decision-making in order to ensure outcomes which are broadly acceptable

The Grass Is Not Always Greener: Congressional Dysfunction, Executive Action, and Climate Change in Comparative Perspective

Partisan climate change politics, paired with a legislative branch that is often deeply divided between two parties, has led to congressional gridlock in the United States. Numerous efforts at passing comprehensive climate change legislation have failed, and little prospect exists for such legislation in the foreseeable future. As a result, executive action under existing federal environmental statutes--often in interaction with litigation--has become the primary mechanism for national-level regulation of greenhouse gas emissions from motor vehicles and power plants. Although many observers critique this state of affairs and wish for a legislature more able to act. this essay argues that more unified government paired with partisanship is also problematic. Using the Australian experience of climate change regulation as an example of an alternative pathway, it demonstrates the ways in which a deeply divided country with a parliamentary system of government can have unstable policy that changes more significantly with each administration. It considers the benefits and limitations of each approach, and explores possibilities for a better way forward

The Grass is Not Always Greener: Congressional Dysfunction, Executive Action, and Climate Change in Comparative Perspective

Partisan climate change politics, paired with a legislative branch that is often deeply divided between two parties, has led to congressional gridlock in the United States. Numerous efforts at passing comprehensive climate change legislation have failed, and little prospect exists for such legislation in the foreseeable future. As a result, executive action under existing federal environmental statutes—often in interaction with litigation—has become the primary mechanism for national-level regulation of greenhouse gas emissions from motor vehicles and power plants. Although many observers critique this state of affairs and wish for a legislature more able to act, this essay argues that more unified government paired with partisanship is also problematic. Using the Australian experience of climate change regulation as an example of an alternative pathway, it demonstrates the ways in which a deeply divided country with a parliamentary system of government can have unstable policy that changes more significantly with each administration. It considers the benefits and limitations of each approach, and explores possibilities for a better way forward

Energy Partisanship

Whether the topic is the Paris Agreement on climate change, greenhouse gas emissions from power plants, the Keystone XL pipeline, hydraulic fracturing, offshore drilling, or renewable energy, much of the U.S. policy dialogue about energy and climate change is deeply partisan. Republicans and Democrats debate individual issues in vitriolic sound bites that indicate minimal common ground. For example, officials favoring robust action on climate change are charged with engaging in a “War on Coal.” Those opposed are labeled “members of the Flat Earth Society.” Set against these dysfunctional climate and energy politics, how can progress be made? For people who accept the science of climate change, this has become a critical question. An emerging body of psychological research indicates that strategies attempting to persuade those with opposing views with additional scientific evidence have limited effectiveness. Providing more information does not change minds because (1) it does not take moral and cultural worldview differences into account, or (2) it is presented in ways that do not adequately acknowledge how people’s perceptions of the relatability and trustworthiness of communicators shape their acceptance of that information. This Article provides a novel analysis of how to make progress on energy and climate change issues by translating this emerging psychological research into a framework for action. It proposes two interconnected strategies—substantive and structural—for moving past imbedded partisanship and political dysfunction. Substantively, the Article argues for refocusing regulatory efforts on areas where a greater degree of consensus may be possible, such as economic development and disaster resilience. Structurally, it proposes a shift to arenas that are less gridlocked by energy partisanship than the legislative branch of the federal government, such as other branches of the federal government, state and local levels, and corporate and private sector actors. By drawing on case studies and empirical data, including interviews with key stakeholders, the Article illustrates possibilities for progress under this framework

The Grass is Not Always Greener: Congressional Dysfunction, Executive Action, and Climate Change in Comparative Perspective

Partisan climate change politics, paired with a legislative branch that is often deeply divided between two parties, has led to congressional gridlock in the United States. Numerous efforts at passing comprehensive climate change legislation have failed, and little prospect exists for such legislation in the foreseeable future. As a result, executive action under existing federal environmental statutes—often in interaction with litigation—has become the primary mechanism for national-level regulation of greenhouse gas emissions from motor vehicles and power plants. Although many observers critique this state of affairs and wish for a legislature more able to act, this essay argues that more unified government paired with partisanship is also problematic. Using the Australian experience of climate change regulation as an example of an alternative pathway, it demonstrates the ways in which a deeply divided country with a parliamentary system of government can have unstable policy that changes more significantly with each administration. It considers the benefits and limitations of each approach, and explores possibilities for a better way forward

The Australian Carbon Pricing Mechanism: Promise and Pitfalls on the Pathway to a Clean Energy Future

A major issue facing efforts to transition from high carbon to low carbon (“clean energy”) sources in the United States is the lack of well-developed legal and policy “infrastructure” to facilitate this transition. This Article considers the lessons for developing such infrastructure from Australia’s recent experience in introducing and implementing a national carbon pricing mechanism. This mechanism was intended to be the keystone of broader national policy arrangements to secure a “clean energy future” for the nation. Although there are significant differences between the legal arrangements governing energy generation and distribution in the United States and Australia (for example, the latter has a national electricity market supported by cooperative federal-state laws), there are yet many similarities between the two countries that enhance the potential for cross-jurisdictional learning. In particular, both countries are leading per capita emitters of greenhouse gases (GHGs), with significant emissions sourced from their respective energy sectors, which remain heavily dependent on fossil fuels (coal, natural gas, and petroleum) for energy supply. In addition, both countries have legal systems based upon common law foundations, embedded within a federal matrix of national and state laws relevant to issues of energy production, environmental protection, and climate change