In
this Article, I argue that U.S. courts should make greater use of the
norms established in the United Nations Framework Convention on Climate
Change (UNFCCC) and other components of the international climate
change regime when deciding how domestic laws apply to issues arising
from climate change. This argument develops from the rapid growth of
international environmental law in recent decades, as well as the
increasingly intertwined relationship of international and domestic
legal systems in several issue areas.

Over the course of the
nation’s history, U.S. courts have regularly employed international and
foreign sources. Dualist views of the U.S. Constitution have become
predominant, however, and recent U.S. Supreme Court references to
foreign and international sources in several human rights cases stirred
exceptional controversy. The controversial nature of such citations in
recent cases is unfortunate because it tends to obscure the value of
domestic judicial interaction with international regimes.

U.S.
courts are facing an increasing number of cases that address some
aspect of the U.S. response to climate change. In virtually all of
these cases, most notably Massachusetts v. EPA, courts have formally
addressed only issues of domestic law. Nonetheless, the cases impact
issues of global concern and are decided in the shadow of an
international legal regime, especially given the United States’ failure
to adopt significant national climate change policies.

U.S.
courts could enhance the value of their decisions, both domestically
and in the international arena, by directly engaging international
climate change norms. The UNFCCC’s requirement that countries take
measures to stabilize greenhouse gas concentrations, for example, is
directly relevant to formally domestic cases decided by U.S. courts.
Explicitly engaging the international norms where they are relevant
would (1) enhance the United States’ standing and influence in
negotiations toward a post-2012 climate change regime, as well as
promoting "soft power" in other areas, (2) benefit the international
regime by providing a concrete application of its core precepts, (3)
develop a baseline legal framework that would encourage consistency
both within the domestic U.S. legal system and across domestic legal
systems addressing the same threats, and (4) further the judicial role
of providing a check on mixed national-international regulatory
activities. In order to advance these goals, I outline one possible
approach to incorporating international climate change norms into
domestic U.S. cases.

Source: Lawrence Solum