Climate Litigation and the Conceptualization of Separated Powers

Sammanfattning

A longstanding debate in constitutional theory concerns the legitimacy of constitutional review and the scope of judicial interpretation. The core of the conflict is the conceptualization of the separation of powers and the related distinction of law and politics. Strategic litigation stresses this existing normative tension, because it brings issues to court with an agenda that goes beyond the individual case. In climate mitigation cases, litigants turn to courts to enforce or improve climate change mitigation policies. Because they often invoke human rights violations to urge courts to compensate for legislative inaction, climate cases reignite the debate on the legitimacy of constitutional review. In light of increasingly polarized political climates and democratic backsliding, this puts courts in the center of a legal and political controversy, threatening to become detrimental to their authority. This thesis addresses the question of how courts can balance their engagement in climate cases, while maintaining their institutional legitimacy and also adequately protecting human rights. I will show that the reasonable criticism of judicial overreach can be addressed by commenting on institutional concerns explicitly, emphasizing the democratic and collective elements of intergenerational equity and leaving room for the legislator to impact the specification of the means to achieve climate goals. Furthermore, I will demonstrate that the reasonable criticism needs to be distinguished from disingenuous criticism that solely aims at discrediting the judicial institution in its entirety. Whereas courts do have a margin of action in resisting democratic backsliding, the decline in the rule of law is not averted by exercising judicial restraint. Thus, while courts have to exercise restraint to respect their constitutional mandate, this restraint cannot be expanded to accommodate for opportunistic criticism intended to undermine judicial authority.