Climate-Proofing Judicial Review after Paris: Judicial Competency, Capacity, and Courage

Abstract

We attempt to unpack the concerns at the core of categorical judicial deference toward government and administrative agency environmental assessments (EAs) and project decisions in Canada. These concerns vary by decision-maker and statutory context, and while sometimes made explicit, they are often left unarticulated and unexamined. We demonstrate that that while categorically deferential judicial review of EAs is a significant obstacle to Canada meeting its climate change mitigation and sustainability commitments, particularly when based on especially broad statutory language, Canadian courts are nonetheless capable of overcoming them. Ultimately, we argue that robust judicial review of EAs having climate change and sustainability implications can play an important role both in helping Canada move toward its climate and sustainability targets, and ultimately in diminishing the frequency with which EAs are litigated on judicial review. Indeed, we argue that a robust judicial review regime is a critical precondition of timely and efficient EA processes, and that such timeliness and efficiency will become increasingly important in the context of charting legal pathways to deep decarbonization and scalable renewable energy generation pursuant to the Paris Agreement and the UN’s Sustainable Development Goals.

Keywords: Canada, Judicial Review, Environmental Assessment, Judicial Competence, Judicial Capacity, Climate Change, Sustainability, Law Reform