In the past, international courts have not hesitated to pronounce adverse judgments against the United States that have negatively affected its national interests, including judgments on critical matters such as the use of military force, as in the Paramilitary Activities case, and on controversial legal and social issues such as the death penalty, as in the Avena case. UNCLOS tribunals have already indicated that they will engage in hotly contested interna- tional environmental disputes, as demonstrated by the MOX Plant case.
An adverse judgment against the United States in a climate change lawsuit would be domestically enforceable and would undoubtedly harm the U.S. economy. The regime formulated by the arbitral tribunal in the Trail Smelter case, if extrapolated to its logical extent and applied to U.S. industries that produce green- house gases, would impose massive regulatory burdens on U.S. compa- nies, and the costs would be passed on to American consumers. Such a judgment would accomplish through international litigation what climate change alarmists could not achieve through treaty negotiations or in the U.S. Congress.