Climate Change Decision Points to the World’s Courts

Earlier this year, the Supreme Court of Hawaii issued a major decision about climate change. The case related to a request that the state Public Utilities Commission (PUC) approve a biomass power plant that purportedly would have had negative environmental effects. The PUC denied approval and the Supreme Court affirmed, announcing that the state constitution’s protection of the “right to a clean and healthful environment” included an affirmative right “to a life-sustaining climate system.” (The court did so, by the way, in its original jurisdiction, but that is a topic for a different blog.)

Of interest to TLB readers might be a point raised by Justice Michael Wilson in his concurring opinion. Among others observations, Justice Wilson contrasted the U.S. federal courts’ approach to climate change with that of other countries. Citing decisions from the Netherlands, Pakistan, and Australia, he wrote:

Unlike jurisdictions in other countries whose courts apply the rule of law to claims seeking protection from knowing environmental damage to a life-sustaining environment, the federal courts of the United States have thus far abdicated responsibility to apply the rule of law to claims that allege knowing contamination of the atmosphere with deleterious levels of greenhouse gas emissions.

Justice Wilson’s discussion of domestic courts’ role in fighting global climate change is consistent with his broader vision. He has sought to promote judicial education around climate change, including as a founding member of the Global Judicial Institute on the Environment Task Force (GJIE). According to its website, GJIE “is organized by judges for judges and committed to judicial independence, transparency, and integrity that supports the judiciary across the world to effectively handle cases concerning the environment.”

In prior writing for the EU Forum of Judges for the Environment, Justice Wilson explained his view of the role of courts in climate change:

The world judiciary is embedded in humanity’s struggle to prevent the earth from reaching the two degrees of global warming identified by 197 countries as catastrophic for the human race. Within the parameters of the environmental rule of law, judges strive to protect the earth and its people from the impending consequences of human-induced carbon emitted at the present rate. Their decisions must be based on command of rapidly developing science and complete understanding of accelerating change in judicial precedent. The endeavor to reach a solution that avoids two degrees of warming is time-limited to no more than the year 2100, at present levels of emission. The men and women who are tasked as judges with the duty to decide the manner in which the environmental rule law is applied to the most important social issue yet facing humanity will be greatly empowered by the instruction, support and collaboration of environmental courts and the Global Judicial Institute on the Environment.

While I may be less sanguine than Justice Wilson about the role of courts in climate justice, I agree that for a problem of this scale, it is all hands on deck.