An Attack on the Separation of Powers? Strategic Climate Litigation in the Eyes of U.S. Judges

Abstract

Climate change litigation has emerged as a powerful tool as societies steer towards sustainable development. Although the litigation mainly takes place in domestic courts, the implications can be seen as global as specific climate rulings influence courts across national borders. However, while the phenomenon of judicialization is well-known in the social sciences, relatively few have studied issues of legitimacy that arise as climate politics move into courts. A comparatively large part of climate cases have appeared in the United States. This article presents a research plan for a study of judges’ opinions and dissents in the United States, regarding the justiciability of strategic climate cases. The purpose is to empirically study how judges navigate a perceived normative conflict—between the litigation and an overarching ideal of separation of powers—in a system marked by checks and balances.

Enhancing climate change adaptation governance through transforming institutions in Kwa-Zulu Natal Province, South Africa

“…It promotes opportunities and prompt action to address climate change (Martin and Fagerberg, 2015). Vertical coordination is the fragmentation between the three spheres of government, namely, national, provincial and local governments, with their environmental administrations and line of responsibility (Nedevska, 2021). The delegation of climate change governance to the lowest and local administrations and municipalities has placed increasing responsibilities and extended their roles from mainly service provision to that of active overseers and custodians of climatic issues (Sibiya et al, 2005).…”

Courts, climate litigation and the evolution of earth system law

“…First, their influence is clearly visible vis‐à‐vis the other branches of government. When analysing the relationships between courts, climate litigation and power, there is a tendency to focus on the extent to which climate cases challenge the legal principle of separation of powers (Nedevska, 2021). Traditionally, climate laws and policies are developed by the legislative and executive branches of governments, and they retain considerable discretion to shape climate laws and policies as they wish, with courts having limited powers to directly influence the content of climate law, even in common law jurisdictions (Burgers, 2020).…”

Procedural problems in the consideration of climate protection cases

“…Nedevska points to a number of key precedents that have helped draw public attention to climate change and forced governments to take stronger action to address it. She argues that litigation has become an important tool for those seeking climate justice [4].…”