Should Judges Make Climate Change Law?

Abstract

What scholars referred to as a climate change litigation ‘explosion’ in 2015 has today become an established movement which is unlikely to stop in the near future: worldwide, over a thousand lawsuits have been launched regarding responsibility for the dangers of climate change. Since the beginning of this trend in transnational climate litigation scholars have warned that the separation of powers is threatened where judges interfere with the politically hot issue of climate change. This article uses Jürgen Habermas's political theory on deliberative democracy to reconstruct the tension between law and politics generated by these lawsuits. This reconstruction affords a better understanding of the implications of climate change litigation: while the role of the judiciary as such remains unchanged, the trend is likely to influence the democratic legitimacy of judicial lawmaking on climate change, as it indicates an increasing realization that a sound environment is a constitutional value and is therefore a prerequisite for democracy.

Editorial: a short history of the climate change litigation boom across Europe

“…72 Payandeh [19], p. 78. 73 Burgers [4], p. 72. 74 Payandeh [19] constitutes the "vehicle" to address the lack of effort and regulation by the governments.…”

“…3 A recent joint research project addressed this challenging question and-by reviewing three decades of climate change mitigation through the lens of ninethematic areas-identified a cluster of reasons for ineffective mitigation efforts, such as the failure of leadership particularly from within high-emitting countries, sectors and corporations, the status quo of the geopolitical, industrial and military interests and balances, the entrenched toolbox in the fields of economics, energy and climate science. 4 According to scientists, in view of all the time wasted, it is imperative that a fundamental, system-wide reorganisation involving technological, economic and social factors occur within the next 10-15 years in order to reduce greenhouse gas emissions to net-zero by around 2050 and get to negative emissions thereafter. 5 The urgent need for transformative changes has been recently supported by a wide-spread phenomenon of climate change litigation: namely, that citizens individually or in groups and/or associations have questioned the effectiveness and appropriateness of the efforts made on behalf of governments and companies to tackle climate change and challenged their climate (in)action before courts.…”

Counter Corporate Litigation: Remedy, Regulation, and Repression in the Struggle for a Just Transition

“…In addition, the petition drew on the UN Guiding Principles on Business and Human Rights (UNGPs) to explain the nature of corporate responsibility for the negative impacts on human rights arising from climate change, including contributions to such impacts and a failure to prevent them [28] (pp. [19][20][21][22]. By way of relief, the petitioners sought an investigation by the Commission, improved monitoring of human rights issues arising from climate change impacts, and the creation by legislators of accountability mechanisms for use by victims of climate change.…”

“…It is tempting to view this a response to failing systems of governance. The fact that climate justice cases against corporations have emerged at the same time as climate justice cases against governments reinforces this impression, raising questions about a political role for the courts [21]. Sustainability regulation is far too underdeveloped at present to be able to declare it a failure, with industrial policies and various 'Green New Deals' only now being debated and introduced.…”

An Attack on the Separation of Powers? Strategic Climate Litigation in the Eyes of U.S. Judges

“…Goal 16 has a social emphasis and requires responsible, democratic institutions. Less tended to-in the literature on climate change litigation-is the related, institutional ideal of separation of powers (but see [15,16]).…”