Docket overload prevents efficient resolution of climate litigation—that decks enforcement of climate policies to reduce climate change
Cinnamon Piñon Carlarne 21, 19th President and Dean of Albany Law School, was the Associate Dean for Faculty & Intellectual Life at The Ohio State University Moritz College of Law, leading international expert in environmental and climate change law policy with a deep commitment to environmental equity and social justice, “The Essential Role of Climate Litigation and the Courts in Averting Climate Crisis”, Ohio State Legal Studies Research Paper No. 592, SSRN, 2021
The history of judicial leadership on matters of critical social importance on which the political branches have stumbled is long and layered in social and liberal democracies worldwide. From the US Supreme Court’s decisions to desegregate schools and advance individual freedoms and privacy rights, to India’s Supreme Court’s string of decisions advancing protections for privacy, gender, and sexuality-related rights,3 to the expansive suite of decisions of the European Court of Human Rights on topics ranging from domestic slavery to environmental justice,4 to the ongoing role of courts in recognizing a right to a healthy environment5 and emerging rights for nature,6 the judiciary plays an essential role in advancing the rule of law on climate change.
More specifically, climate litigation7 draws on a long history of environmental litigation. From the earliest days, litigants turned to the courts to ensure the implementation, enforcement, and evolution of environmental law. Courts have served as the guardians and, at times, the architects of the rule of law in the environmental context in jurisdictions as varied as the United States, South Africa, and India.8
The role that the courts have and continue to play in shaping environmental law reflects a long history of adversarial legalism9 and an abiding faith in the ability of the courts to be unbiased arbiters of legal disputes as well as visionaries of change.
Climate litigation is thus neither an aberration nor a new phenomenon. The expanding body of climate litigation responds to profound state failures to protect their citizenry from the dire threats that climate change poses. Moreover, it tracks a history of citizens turning to the courts to identify and enforce fundamental rights when the political branches fail to do so, and reaffirms the long-standing role and responsibility of the judiciary in maintaining the integrity of the rule of law and ensuring the wellbeing of the nation and its people, particularly in moments when the state fails to respond to urgent social, scientific, and political challenges.10 Building on a long history of effective environmental litigation, climate litigation is playing and incontrovertibly important role in shaping the rule of the law around climate change.