Adjudicating Scientific Disputes in Climate Science: The Limits of Judicial Competence and the Risks of Taking Sides

Abstract

Following a judgment by a Dutch court that the government must step up the fight against climate change, a prominent international lawyer recently proposed that the International Court of Justice rule on climate science so that the scientific disputes in this area can be settled. The intent is to pave the way for climate change litigation around the world and to raise the bar for the international negotiations. This proposal raises questions about both the limits of judicial authority and competence, and the justiciability of climate science. Courts should refrain from examining and ruling on climate science, since they are neither authorized nor competent to rule in scientific disputes. Even if judicial competence is assumed, climate science is not ripe for adjudication. To the contrary, the politicization of the science and the socio-political construction of scientific consensus in the climate area render any attempt to rule impartially on the key scientific disputes futile and suspect. Whether in the form of an advisory opinion or otherwise, a court judgment would be perceived as taking sides and, thus, would only aggravate an already badly politicized situation. Courts, including the ICJ, should uphold the rule of law and respect the limits of their authority. They should therefore refuse to opine on climate science and refer scientific disputes back to the scientific community, which is where they belong.

Keywords: climate change litigation, climate policy, international law, separation of powers, role of judiciary, judicial authority, rule of law, political question doctrine, science and law, politicization of science, scientific consensus, scientism, science-based risk regulation

JEL Classification: K13, K30, K32, K33, K40, K41, K49