In the age of the Anthropocene, where human activity threatens to change irreparably the environment in which we live, there exist serious challenges to the traditional law-making techniques of the liberal democratic state. While not strictly confined to climate change, these challenges apply acutely to that phenomenon. Indeed, climate change is the biggest threat of our era. It is considered as a threat multiplier that has been causing irremediable damage to the world’s ecosystem for decades.
The ongoing debate on its impact has been enriched over the years with solid facts, data and scientific reports that have proved the harsh reality of this phenomenon. The consequences of global warming have then moved from the fully theoretical to observable reality. This is visible from the fact that the Sustainable Development Goals, introduced by the United Nations in 2012, moved from tackling poverty in all its forms to including the environmental crisis – “climate action” – as one of the main challenges that the world is facing today . Indeed, according to the latest assessments conducted by the UN Intergovernmental Panel on Climate Change (IPCC), several regional changes are going to occur with “global warming up to 1.5°C as compared to pre-industrial levels, including (…) increases in frequency and amount of heavy precipitation, and (…) in intensity or frequency of droughts” . Extreme weather conditions will thus increasingly disrupt energy and food markets, exacerbate state weakness, force human migration, and trigger civil disobedience and riots.
Combatting climate change requires action on two fronts: the reduction of greenhouse gas (GHG) emissions and taking steps towards mitigation and adaptation measures. The development of such policies involves complex interactions between international norms, as those agreed on during the COP25 that took place in Madrid last December, and domestic law. In fact, no nation state alone created climate change and thus none alone can stop it. A combination of domestic and international cooperation is essential for success. However, the challenges of climate change and the prospect of failing to combat it raise important constitutional questions. Since the climate change issue first arose as a political issue, the debate has highly adopted ad unrealistic character. While the opinions of climate sceptics, who doubted the threat as a whole, have been largely overcome, evidence suggests that the efforts to make concrete policy adjustments both domestically and internationally have miserably and surprisingly failed. Instead of facing up the real political consequences that effective action would require, policymakers have discounted the future in favor of the present . In fact, sudden policy adjustments are much harder to manage than those instituted over a long-time frame. And the time is now shrinking. In this regard, judicial review as a legal instrument in favor of climate change abatement policies can turn out to be surprisingly useful.
The notion of ‘judicial review’ first entered the judicial spectrum around the end of the eighteenth century. Since then many steps have been taken towards an increasing process of democratization. In 1748, the French Enlightenment political philosopher Baron de Montesquieu advocated the principle of “trias politica”, namely the distribution of political power among a legislature, an executive, and a judiciary. In this context, the major concern was to avoid the excessive centralization of power to a single ruler. This philosophy heavily influenced the writing of the constitution in many countries of the world, including the United States. In fact, the US Constitution clearly argued for a constitutional government with three separate branches , which is associated with the notion of “checks and balances” between state organs . According to this principle, the judiciary can act as a check upon the legislature . However, this notion of “judicial review” has a problematic nature. Allowing the courts to check whether a law is in compliance with the constitution means that the judges can potentially overrule the decisions of political actors . This would be seen as an attempt of encroachment on the legislative power of the executive. As a result, there is an ongoing debate about the scope of powers of the constitutional courts in assessing whether or not a case involving a politically sensitive issue, such as climate change, should be considered by a judge.
Therefore, can judicial reviews be beneficial for the implementation of policies that would curb the harmful effects of climate change? Judicial review is indeed a potentially powerful instrument . In many states, this power is used by constitutional courts to tackle cases presenting sensitive political issues. Nowadays, there is – almost – no doubt that climate change poses severe challenges to the very existence of humankind and the ecosystem in which we are all living. Scientific relevance has shown that the current warming of the climate system is of particular relevance since it results from human activities . The consequences that industrial and agricultural activities have on the natural greenhouse are enormous for both the natural environment and the ecosystem living in it, including human beings. On average, a stronger greenhouse effect will make the Earth become warmer. This happens because the burning of fossil fuels has increased the concentration of carbon dioxide (CO2) in the atmosphere. The increased heat in the oceans will partially melt glaciers and other ice, contributing further to the rise of sea level . Thus, the current advancement of human civilization is leading to the slow destruction of the eco-habitat. For this reason, the UN Secretariat for Climate Change has supported several intergovernmental negotiations since 1992. The aim was to advance the implementation of policies for all nations in an attempt to combat climate change . However, it is essential for the climate action to be successful to gain strong support not only from the formal legislators, but also from other parts of society, including normal judges.
In 2016, a whole new dispute in the United States burned out between the Federal Government and the American organization “Our Children’s Trust” on the impact of fossil fuels on the climate system. The lawsuit, which involved plaintiffs aged between 8 and 19, alleged that the American Government was violating its citizens’ constitutional and public trust rights by promoting the use of fossil fuels . The Declaration of Independence clearly held the unalienable right of every citizen to “Life, Liberty and the pursuit of Happiness” . Therefore, valuing more the short-term economic interests of the Fossil Fuel industry over the wellbeing of individuals, it is a sign of infringement of the aforementioned rights. Furthermore, since the government is formally bound by law, it is also subject to the safeguard of essential resources, such as the environment. This concept is known as “public trust doctrine”, which provides that government officials have an affirmative duty to safeguard the long-term preservation of natural resources for the benefit of current and future generations . In this case, the lawsuits claimed that a government elected by and for the people has the binding duty “to protect the natural system required for the people’s survival” . When the executive and legislative branches fail in the aforementioned duty, then the judicial branch must intervene on the side of the will of the people, as expressed in the famous case of “Marbury vs. Madison” of 1803, which effectively established the role of judicial review in the American legal system . Therefore, the sentence of the US Federal District Court ruled in favour of the young plaintiffs, by upholding the claims that the federal government was indeed jeopardizing its citizens’ lives, liberty and happiness. This was a revolutionary decision, as it put for the first time the climate change issue in front of the federal courts and succeeded.
Therefore, there are cases where the actions of the government are insufficient to prevent foreseeable harm to its own citizens. In legal terms, this is a violation of the rule of law by the State that cannot be ignored, especially when it concerns issues that have global impacts. Climate change poses universal threats and tackling it is an imperative for all state organs, including courts and formal legislators. Thus, when the procedures of political decision-making fail at being effective, the judiciary is required to intervene by taking legal decisions that have political consequences. The power of judicial review is as an essential instrument for the correct exercise of the rule of law, and not as a breach of the trias politica. In this case, the debate around climate change is given justiciability by asserting that the alleged harms resulting from global warming will befall all the segments of society.
Nowadays, there are many controversies around the concept of judicial review. While the Constitutions of many countries in the world appeal to the notion of a neat separation of powers between state organs, it is also true that there must be an element of checks and balances. However, the idea that courts have the duty to check upon the legislature is not undisputed . In many cases, this is perceived as a form of infringement by courts in procedures of political concern. The dispute on climate change is a good start-off. The impacts of climate change to the environment and to our societies are unprecedented in scale . For this reason, whenever the legislature is unsuccessful at taking effective actions to prevent its dangers, the courts are entitled to intervene. In fact, the judiciary can uphold the principle that the government is held legally accountable for safeguarding the fundamental rights of every citizen to life, liberty and happiness . Also, when the state (politics) fails, the court (law) must act as a response to the public trust doctrine. It is thus important to highlight the relevance of climate change in the current debate between law and politics. Climate change is a sensitive issue that perfectly pictures the complex interrelations between the field of law and politics. It is not a problem of mere political concern, since its consequences and harms will befall all segments of society, from the oldest to the youngest, from the wealthiest to the poorest. It is a topic of human concern. This reason would justify the justiciability of the judiciary, and therefore, the actions of the courts in addressing the governments to cease jeopardizing the climate system.
Annachiara is a final-year student of Political Science majoring in International Relations and completing a minor in Middle Eastern Studies at University of Amsterdam. Her main interests of study are migration laws, international relations of the MENA region and environmental studies. She is currently writing her final thesis on the process of Environmental Peacebuilding in Israel, Jordan and Palestine. She is an active member of the activist group “Extinction Rebellion” and is the co-founder of “Earthfully Eating”, a start-up that deals with sustainable eating.
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