“Thinking like a lawyer” in an uncertain world: The politics of climate, law and risk governance in the United States

Abstract

This article explores the legal aspects of risk governance using the Supreme Court’s decision in Massachusetts v. EPA. Legal ways of thinking – based on realist risk conceptions requiring a showing of simple causation before granting relief – may derail efforts to address uncertainty. Courts filter risk questions through legal procedures and epistemologies to become legal-scientific risk conceptions. At the same time, lawyers and judges have disproportionate power in violation of the normative goals of risk governance. Furthermore, litigation narrows the number of concepts and parties while adding complexity to already uncertain and multifaceted risks. I argue that the majority’s reasoning in Massachusetts v. EPA suggests that judges can make existing legal mechanisms more responsive to risk governance by incorporating the judicial precautionary principle into case law. This subtle insertion of the precautionary principle into precedent governing legal standing tempered aspects of the law that made responding to systemic risks more difficult. The dissenting opinions reveal underlying ambivalences towards globalization that could impact whether institutions choose to confront systemic risks. I argue that changes in legal culture can lead to risk governance within existing regulatory systems, in contrast to those scholars who advocate for radically new governance regimes.