Courts & Climate
Rights, laws, or policies?
I’m deep into questions of how democracy might handle the Anthropocene. Here are a couple of living case studies.
Anthropocene questions are represented by climate. (There are so many other issues, but climate always comes to the fore.) Democracy questions are represented by whether climate change might violate human rights and whether the courts are the right government venue to deal with those violations.
Options within any democratic space include: the private sector, civil society, or in government: the legislative branch, the executive branch including administrative policymaking, the judicial branch — all at international, federal, state, or local levels.
Or, there could be something like deliberative democracy or citizens assemblies, which stand adjacent to how most democracies work today.
The Swiss Case
has an article out today discussing the wisdom of bringing in the courts.The stakes of climate policy are very high, and the rule of law and a strong judiciary are key ingredients for a healthy liberal democracy. We know all about the dangers of pure majoritarianism, where the will of voters is left unchecked.
But it seems that we have now overcorrected by letting courts shape public policy directly. The ECtHR decision is a dangerous overreach into a matter that should, first and foremost, be in the hands of the electorate and their representatives.
The 18th century French philosopher Montesquieu argued that judges should be the “mouth of the law”—that is, they should stick to the law as it is written. Judges are unelected, and they draw the legitimacy of their decisions from laws and constitutions voted for by the people and their representatives. There is of course room for courts to act on climate policy, and they regularly do. But this must be based on laws and constitutional amendments previously approved by parliaments. In the case of the ECtHR, we are witnessing a mission creep without direct textual backing.
Source: 👇
The Montana Case
It’s useful to compare the Montana case.
Held v. Montana is the first constitutional climate change lawsuit to go to trial. In the case, filed in 2020, 16 youth plaintiffs from across Montana allege the state government has violated their constitutional right to a clean and healthful environment.
Source: 👇
The Flathead Beacon has a dedicated landing page for all related articles:
Montana Climate Case - Flathead Beacon
Read about the youth who brought the case, Montana’s constitution, the judicial ruling, and new legislative action.
Thinking Through the Options
Note the state level of the Montana contest, compared with, in the Swiss case, appealing to the European Court of Human Rights.
What are the relevant political principles to be applied to the climate issue?
Should tackling Anthropocene issues be a matter of rights defensible by government at all?
What is the appropriate governmental level to bring a case like this? International? National? State or local?
Should recourse be to the courts? legislative branch? policymaking by the executive branch or administration?
What other options are there, given the types of collective action available to people in modern democracies?
Consider that most “climate action” so far has been guided by UN-organized climate “summits” that try to get national governments to agree on various types of carbon emissions reductions using political statements and agreements. — And how well do those things work?!
