Files
Abstract
Courts in key climate change cases have abdicated their constitutional
responsibility to protect a prejudiced and disenfranchised group (nonvoting
minors and future generations) and remedy an insidious pathology in public
discourse and the political process: the industry-funded climate disinformation
campaign. This Article posits that this abdication results from courts’ uneasiness
about displacing the prerogatives of democratically elected bodies. This
uneasiness is misplaced. Court engagement with climate cases would strengthen
democracy in accord with widely accepted justifications for countermajoritarian
judicial review. This Article first describes in detail how courts exhibit a
frustrating reticence to accept jurisdiction over cases that present questions
relating to core climate policy, such as whether large emitters or fossil fuel
producers have common law liability for climate harms and whether the
government has a common law or constitutional duty to address climate change.
In not a single case raising such claims (and they number well over thirty) has a
court permitted the case to proceed to trial. Courts dismiss these claims under
the mantle of a variety of justiciability doctrines (standing, political question
doctrine, displacement); these doctrines often serve as vessels for courts to
exercise judicial restraint, and courts’ language and reasoning in the climate
cases confirms that the courts are, indeed, motivated by concerns of judicial
overreach. The Article then offers a positive account for why judicial
engagement in the climate cases is consistent with our system of democracy, even
as understood by seminal scholars who define relatively narrow boundaries for
countermajoritarian judicial review. In particular, the Article will situate
arguments for judicial review in climate cases within the work of John Hart Ely,
Jurgen Habermas, and Frank Michelman.