Climate-conscious courts: reflections on the role of the judge in addressing climate change
2021 proved to be another important year in the growing field of climate change law. As we move into 2022, it seems that climate change litigation will continue to be unavoidable, writes Lord Robert Carnwath, a former British Supreme Court judge. Here, he presents a series of videos filmed for COP26 by judges from the Global South and North, himself among them, that discuss the role of courts in addressing climate change and the obstacles they must overcome.
Among the court cases related to climate change filed, heard or decided last year, there was considerable growth in climate cases that cite human rights and constitutional violations in their arguments, as identified by the Grantham Research Institute’s Global Trends in Climate Change Litigation: 2021 snapshot. Within this context, judges and the rule of law have an important role to play. Recent scientific evidence, particularly attribution science, makes it clear that urgent system change is needed to address climate change. Nevertheless, as we move into a new year, the problem of interpreting and applying that evidence in the context of existing legal systems remains.
The law can provide a bridge between the uncertain position in which communities and societies currently find themselves in the face of manifest climate change impacts, and the clarity and direction that will be required in the very near future. Judges can and must offer at least some of the building blocks for the law’s response to climate change. However, while I am optimistic that judges will play a significant role in helping to combat climate change, their task is not without its challenges.
Perspectives from seven judges
In a series of videos filmed for COP26, seven judges from around the world – myself included – present perspectives on the role of the courts in addressing climate change and how this role may evolve in the future, as well as some of the obstacles the courts will need to overcome. The videos were produced in a partnership between the Grantham Research Institute, the Global Judicial Institute for the Environment, the IUCN World Commission on Environmental Law, and the COP26 Climate Champions team.
From the Global South, Justice Antonio Hermann Benjamin, of the National High Court of Brazil, comments on the unavoidability of climate change litigation and the role of environmental law in Latin American cases; Justice Nambitha Dambuza, of the South African Supreme Court of Appeal, assesses the South African courts’ preparedness to adjudicate complex climate litigation cases; and Justice Syed Mansoor Ali Shah of the Supreme Court of Pakistan provides insights into the way in which the remedies imposed by the courts may contribute to the development of climate awareness, both in government and among the general public.
From the Global North, Justice Ragnhild Noer, of the Supreme Court of Norway, considers courts’ responsibility to work towards a sustainable future by striking a balance between the thorough assessment of complex individual cases and awareness of the long-term consequences of judicial decisions on the global response to climate change; Professor Luc Lavrysen of Ghent University, and President of the Belgian Constitutional Court, discusses European climate litigation cases and the possibility of seeing an increase in private property cases; and from a procedural perspective, Justice Brian Preston, Chief Judge of the Land and Environment Court of New South Wales, speaks about the influence of international climate laws in domestic law and the norms that may influence the adjudication of climate litigation. For my own contribution, from a UK perspective, I examine existing legal mechanisms and principles that can be used to address climate change, the legal challenges courts face, and the courts’ ability to adapt to the challenges presented by climate change litigation.
Areas of common ground
Across the various jurisdictions represented in the videos, three significant areas of overlap emerge.
In the first instance, international norms and standards play a significant role in the adjudication of complex climate litigation. This is particularly true in relation to the impact of the Paris Agreement on domestic litigation. Courts may find themselves presented with cases that argue for an alignment between international and domestic objectives, particularly where misalignment may impact human and constitutional rights. As Justice Benjamin explains, “Climate change litigation all over the world is unavoidable… because judges are invited by constitutions, by laws to decide all types of cases.”
Beyond international law, we also see a process of transnational exchange between courts in different jurisdictions grappling with similar questions. As Justice Lavrysen puts it, he has “no doubt” that the “human rights approach adopted by the Dutch Supreme Court [in the landmark case of Urgenda Foundation v. Netherlands] … will influence judges in other parts of the world.” Justice Dambuza picks up this theme, noting the capacity of the South African courts to draw on precedents from elsewhere to inform their thinking: “Where our jurisprudence is lacking in climate change jurisprudence, we will readily draw on other jurisdictions.”
Secondly, judges should acknowledge that because climate change is a complex and global phenomenon, it does not respect existing legal boundaries. As such, judges may be required to draw on a wide collection of legal principles to adjudicate climate litigation, taking inspiration from other areas of law and applying old law in new ways. The South African courts, for example, have developed an extensive body of human rights jurisprudence in relation to the HIV pandemic, some of which may prove relevant in climate cases. Many climate cases have also required the courts to consider novel remedies. As Justice Shah explains, in Pakistan such remedies have included ordering the formation of a commission of expert stakeholders, tasked with advising the government on actions to be taken to combat climate change. While the court did not direct the solutions provided by the Commission, it nonetheless played an essential role in raising awareness about climate change through its ordered remedies. In the words of Justice Shah, “as far as climate justice is concerned… the judiciary has played a very effective role in Pakistan in moving the agenda of climate change.”
Finally, it is essential that courts develop what Justice Preston refers to as a “climate consciousness”, or “an awareness of the climate crisis, its causes and consequences” that can “inform a court’s choices in finding, interpreting, and applying the law”. It must be recognised that domestic decisions will have global impact and may influence judges’ decisions elsewhere in the world. While complex cases must still be rigorously assessed, judges must make efforts to remain aware of the urgent nature of climate change and facilitate a rapid response wherever possible. The courts have a responsibility to act now and to consider the rights of those who will be most affected by climate change and the court’s decision in both the present and the future.
However, despite the necessity for rapid action to address climate change, judges are not policymakers, and the courts must adhere to the rule of law and respect the democratic processes of a given jurisdiction. Nevertheless, as Justice Noer notes, “Courts must be aware of the long-term consequences of our rulings”. Judges must “strike the right balance and appeal to the trust that is needed in societies”, ensuring “the protection of nature and future generations” and working towards “a sustainable future”. To achieve this balance, it is imperative that judges are ‘climate literate’: that is, that they are as well informed on all issues surrounding climate change as possible.
The author is grateful to Emily Bradeen for her invaluable assistance in preparing this commentary.
Seven judges present their perspectives on the current and evolving role of the courts in addressing climate change – video series filmed for COP26