The Role of Courts in Remedying Climate Chaos: Transcending Judicial Nihilism and Taking Survival Seriously

Abstract

Numerous courts have dismissed cases relating to the climate crisis as nonjusticiable political questions or for lack of redressability before ever reaching the cases’ merits. These rulings demonstrate that too many courts have a nihilistic worldview when it comes to remedying the climate crisis. This judicial nihilism threatens an early end for Juliana v. United States, wherein youth plaintiffs allege that the federal government’s exacerbation of the climate crisis violates a constitutional right to a stable climate system. To combat judicial climate nihilism, this Note demonstrates why the climate crisis does not present nonjusticiable political questions, especially in the constitutional context, and that courts do have the power to redress this crisis. In addition to relying on U.S. case law, the Note examines how the groundbreaking Urgenda decision from the Netherlands Supreme Court provides an insightful analysis of governments’ political question and redressability defenses. Climate cases do not inherently contain political questions because (1) no textually demonstrable commitment to other political branches bars courts from addressing the climate crisis, (2) tort and constitutional law, along with science, provide judicially manageable and discoverable standards, and (3) deciding such cases does not require the courts to make an initial policy decision inappropriate for judicial discretion. If courts continue to dismiss climate cases as political questions, this may eventually undermine the legitimacy of the judiciary, as well as the rule of law itself. Furthermore, courts have the power to redress the climate crisis because partial redressability is enough to meet redressability as a standing requirement. Every reduction in greenhouse gas emissions helps remedy the climate crisis, and U.S. courts can order such reductions while leaving other branches of government to determine exactly how such reductions should be achieved. Finally, the constitutional right to a habitable environment can be derived from substantive due process doctrine, and the contrary position that no such right exists is the far more radical one.

Keywords: climate change, Juliana v. United States, Urgenda, political question doctrine, environmental law, standing, nihilism, judicial nihilism