The US climate litigation assemblage: examining a provisional governance form

Climate litigation has emerged as a strategy to pressure federal agencies of the United States of America to act on climate change (Osofsky and Peel 2013). Indeed, an 'administrative' approach to reducing national carbon dioxide (CO2) emissions led by the Environmental Protection Agency under the Clean Air Act of 1963- a regulatory pathway revealed through the practice of litigation - is currently being pursued by President Barack Obama in lieu of federal climate legislation (MacNeil 2013). Adapting Tanya Murray Li's (2007) analytic of assemblage, this thesis examines the practice of litigation and the sequence of regulatory events it has incited, using the key Supreme Court cases of Massachusetts v. EPA [2007] and Utility Air Regulatory Group (UARG) v. EPA [2014] to bound discussion. It terms these practices and events the 'climate litigation assemblage', and investigates its emergence since 1999. It considers how CO2 has been legally 'framed and acted upon' (McGuirk 2011: 339), and the (selective) arrangement of actors, institutions, objects, laws, objectives and modes of authority that constitute a provisional governance form. Reading for the relational interaction of distributed and heterogeneous, human and non-human agencies reveals the internal contradictions and provisionality of governance-in-practice. This is not to suggest governance assemblages - through ongoing labour to maintain relationships - cannot endure to produce social and material effects. Realistically, the climate litigation assemblage has produced modest direct emission reductions; however its immaterial effects - which include exposing climate issues through highly publicised Supreme Court cases, mounting legal and social pressure on decision making institutions and the relationships forged between similarly minded and widely distributed actors - have made a significant imprint on the larger US climate governance space. In explicating the material and immaterial effects of the assemblage, a 'deliberately open', non-essentialist approach to the composition of governance forms is adopted; one that doesn't presuppose the 'durability, the types of relations and the human and non-human elements involved' (Anderson and McFarlane 2011: 124). Finally, future directions of the assemblage - including the potential productivity of disassembly - are considered. This consideration is focused by the prospect of the Environmental Protection Agency's pursuit of a national CO2 reductions program being eroded under 'the weight of its own contradictions' (Murray Li 2007: 287) by the case UARG v. EPA that is currently being heard by the Supreme Court