This Essay is the first to examine ways in which the different pathways of climate change litigation—statutory interpretation, human and constitutional rights, and common law—interact with infrastructure impacts. Its analysis draws on a model of these pathways that Professor Jacqueline Peel and I developed in our book Climate Change Litigation:Regulatory Pathways to Cleaner Energy. The Essay finds that litigation across all three pathways plays a critical role in shaping how effectively we address infrastructure issues. Petitioners can use these cases to shine a spotlight on infrastructure harms, to push for or against the mitigation and adaptation measures needed to limit harm, and to seek compensation for loss and damage.
This Essay is published as part of the Northwestern University Law Review’s online essay series. The 2022 topic is “Climate Change & Infrastructure: Existential Threats to Our Built Environment.”
Dean, Myra and James Bradwell Professor of Law, and Professor of Environmental Policy and Culture (courtesy), Northwestern University Pritzker School of Law. I would like to thank Professors Michael Barsa, Cary Coglianese, David Dana, Erin Delaney, Michael Gerrard, Jacqueline Peel, J.B. Ruhl, and Robert Weinstock for their thoughtful feedback and insights; Pritzker Library Fellow Freyja DePew for her helpful research assistance; and the Northwestern University Law Review Online Editor-in-Chiefs Taylor Nchako and Sasha Bryski and Editors Ella Chochrek, Adam Lefkowitz, Ezra Meren, Ryan O’Sullivan, and Xukun Rendu for their excellent editing.
Copyright 2023 by Hari M. Osofsky
Cite as: Hari M. Osofsky, Litigating Climate Change Infrastructure Impacts, 118 Nw. U. L. Rev. Online 149 (2023), https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1336&context=nulr_online.