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 counter-majoritarian 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.
Katrina Fisher Kuh, The Legitimacy of Judicial Climate Engagement, 46 Ecology L. Q. 731 (2020), https://digitalcommons.pace.edu/lawfaculty/1167/.