Climate, Controversy, and Courts

S. Cal. L. Rev. Online

17 Pages Posted: 22 Jun 2023

See all articles by Todd S. Aagaard

Todd S. Aagaard

Villanova University - Charles Widger School of Law

Date Written: September 2022


The Supreme Court’s 2022 decision in West Virginia v. EPA, along with other recent cases in which federal courts have grappled with the ongoing climate crisis, offers an opportunity to assess the role of the judiciary in helping the United States adopt effective responses to monumental threats such as the climate crisis. Courts reviewing legislative and executive actions must find ways to enforce constitutional limits without preventing the political branches from implementing effective policy responses to potentially catastrophic problems. Three relatively recent climate cases—West Virginia v. EPA, Utility Air Regulatory Group v. EPA, and Juliana v. United States—illustrate the need for courts to balance their competing obligations. In West Virginia and in Juliana, courts lost their balance, disregarding practical consequences in West Virginia and neglecting institutional limits in Juliana. Utility Air Regulatory Group, despite other shortcomings, emerges as the best example of a court striking the proper balance between its dual responsibilities. The fact that Justice Scalia, an ideologically conservative Justice, could write an opinion that constrained EPA’s regulatory authority without impairing the effectiveness of the agency’s policy supplies some basis for optimism that courts can play a constructive role in supporting the development of practical solutions to pressing problems. West Virginia, by contrast, provides a discouraging cautionary example of a Court thoroughly out of balance.

Keywords: Climate, Litigation, Courts, West Virginia v. EPA, Juliana

Suggested Citation

Aagaard, Todd S., Climate, Controversy, and Courts (September 2022). S. Cal. L. Rev. Online, Available at SSRN:

Todd S. Aagaard (Contact Author)

Villanova University - Charles Widger School of Law ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States
610-519-3001 (Phone)


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