Should Courts Decide Climate Policies?
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Henrik Lando
Abstract
In State of the Netherlands v. Urgenda Foundation (the Urgenda verdict), the Dutch Supreme Court ordered the Dutch Government to pursue a goal of a 25 % rather than a 20 % decrease in CO2 emissions. The present article discusses the verdict and climate litigation of this kind more generally from a functional perspective rather than from the perspective of democratic legitimacy. It argues that the premises of the Court were inapplicable from an economic perspective and that the faulty reasoning is indicative of reasons why judicial restraint is socially desirable in the area of climate policies. From the viewpoint of social welfare, it may be desirable that a court overrides climate policy if the policy neglects the interests of future generations, i.e. if it is unsustainable. However, the Court did not consult the economic literature on sustainable climate policies. It relied on a consensus among climate scientists, on the European Convention of Human Rights, and on the precautionary principle. We argue that if the Court had consulted the economic literature, it would have found disagreement about how quickly emissions should be lowered, and it would have had to address many complex sources of disagreement that cannot be eliminated by recourse to human rights or the precautionary principle. The Court would have had to subjectively assess different economic theories. However, the litigation process is not set up for and judges are not trained for this complex assessment.
References
Acemoglu, D., P. Aghion, L. Bursztyn, and D. Hemous. 2012. “The Environment and Directed Technical Change.” American Economic Review 102 (1): 131–66. https://doi.org/10.1257/aer.102.1.131.Search in Google Scholar
Bergkamp, L. 2020. “The Dutch Supreme Court’s Climate Judgment: Its Consequences and Implications for Business – Revolution Through Litigation.” European Energy and Environmental Law Review 29 (3): 89–97, https://doi.org/10.54648/eelr2020032.Search in Google Scholar
Bergkamp, L., and J.C. Hanekamp. 2015. “Climate Change Litigation Against States: The Perils of Court-Made Climate Policies.” European Energy and Environmental Law Review 24: 102. https://doi.org/10.54648/eelr2015010.Search in Google Scholar
Botzen, W., and J. van den Bergh. 2012. “How Sensitive is Nordhaus to Weitzman? Climate Policy in DICE with an Alternative Damage Function.” Economics Letters 117 (1): 372–4, https://doi.org/10.1016/j.econlet.2012.05.032.Search in Google Scholar
Burgers, L. 2020. “Should Judges Make Climate Change Law?” Transnational Environmental Law 9 (1): 55–75, https://doi.org/10.1017/S2047102519000360.Search in Google Scholar
Burgers, L., and T. Staal. 2019. Climate Action as Positive Human Rights Obligation: The Appeals Judgment in Urgenda v The Netherlands. Amsterdam Law School Research Paper No. 2019-01.10.1007/978-94-6265-331-3_10Search in Google Scholar
Dari-Mattiacci, G., N.M. Garoupa, and F. Gomez-Pomar. 2010. “State Liability, 18 EUR.” Rev. of Private L 773: 773–811.10.54648/ERPL2010061Search in Google Scholar
Elhauge, E.R. 1991. “Does Interest Group Theory Justify More Intrusive Judicial Review?” Yale Law Journal 101 (1): 31–110, https://doi.org/10.2307/796935.Search in Google Scholar
Graver, H.P. 2020. “Judging for Utopia: Climate Change and Judicial Action.” European Review of Private Law 28 (4): 885–907, https://doi.org/10.54648/erpl2020053.Search in Google Scholar
Habermas, J. 2015. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. New York: John Wiley & Sons.Search in Google Scholar
Hylton, K.N. 2001. “When Should We Prefer Tort Law to Environmental Regulation.” Washburn LJ 41: 515.10.2139/ssrn.285264Search in Google Scholar
Interagency Working Group. 2010. “Interagency Working Group on Social Cost of Carbon.” Social Cost of Carbon for Regulatory Impact Analysis under Executive Order: 12866.Search in Google Scholar
Koonin, S.E. 2021. Unsettled: What Climate Science Tells Us, What it Doesn’t, and Why it Matters. Dallas: BenBella Books.Search in Google Scholar
Lomborg, B. 2021. False Alarm: How Climate Change Panic Costs Us Trillions, Hurts the Poor, and Fails to Fix the Planet, edited by B. Lomborg. New York: Basic Books.Search in Google Scholar
Maskin, E., and J. Tirole. 2004. “The Politician and the Judge: Accountability in Government.” American Economic Review 94 (4): 1034–54. https://doi.org/10.1257/0002828042002606.Search in Google Scholar
Nordhaus, W.D. 2007. “A Review of the Stern Review on the Economics of Climate Change.” Journal of Economic Literature 45 (3): 686–702. https://doi.org/10.1257/jel.45.3.686.Search in Google Scholar
Nordhaus, W. 2019. “Climate Change: The Ultimate Challenge for Economics.” American Economic Review 109 (6): 1991–2014. https://doi.org/10.1257/aer.109.6.1991.Search in Google Scholar
Pearce, D. 2003. “The Social Cost of Carbon and Its Policy Implications.” Oxford Review of Economic Policy 19 (3): 362–84. https://doi.org/10.1093/oxrep/19.3.362.Search in Google Scholar
Peterson, M. 2006. “The Precautionary Principle is Incoherent.” Risk Analysis 26 (3): 595–601. https://doi.org/10.1111/j.1539-6924.2006.00781.x.Search in Google Scholar
Pielke, R. 2007. “Mistreatment of the Economic Impacts of Extreme Events in the Stern Review Report on the Economics of Climate Change.” Global Environmental Change 17 (3): 302–10. https://doi.org/10.1016/j.gloenvcha.2007.05.004.Search in Google Scholar
Rawls, J. 2020. “Political Liberalism.” In The New Social Theory Reader, 123–8. London: Routledge.10.4324/9781003060963-18Search in Google Scholar
Rennert, K., F. Errickson, B. C. Prest, L. Rennels, R. G. Newell, W. Pizer, C. Kingdon, et al.. 2022. “Comprehensive Evidence Implies a Higher Social Cost of CO2.” Nature 610 (7933): 687–92. https://doi.org/10.1038/s41586-022-05224-9.Search in Google Scholar
Shavell, Steven. 1984. “A Model of the Optimal Use of Liability and Safety Regulation.” RAND Journal of Economics 15 (2): 271–80. https://doi.org/10.2307/2555680.Search in Google Scholar
Stefánsson, H.O. 2019. “On the Limits of the Precautionary Principle.” Risk Analysis 39 (6): 1204–22. https://doi.org/10.1111/risa.13265.Search in Google Scholar
Stern, N.H. 2007. The Economics of Climate Change: The Stern Review. Cambridge: Cambridge University Press.10.1017/CBO9780511817434Search in Google Scholar
Stern, N. 2014. “Ethics, Equity and the Economics of Climate Change Paper 1: Science and Philosophy.” Economics & Philosophy 30 (3): 397–444. https://doi.org/10.1017/s0266267114000297.Search in Google Scholar
Stern, N., J. Stiglitz, and C. Taylor. 2022. “The Economics of Immense Risk, Urgent Action and Radical Change: Towards New Approaches to the Economics of Climate Change.” Journal of Economic Methodology 29 (3): 181–216. https://doi.org/10.1080/1350178x.2022.2040740.Search in Google Scholar
Sunstein, C.R. 2002. “Beyond the Precautionary Principle.” University of Pennsylvania Law Review 151: 1003.10.2307/3312884Search in Google Scholar
Sunstein, C.R. 2005. Laws of Fear: Beyond the Precautionary Principle. Cambridge: Cambridge University Press.10.1017/CBO9780511790850Search in Google Scholar
Van Zeben, J. 2018. “A Law and Economics Perspective on Judicial Risk Regulation.” European Journal of Risk Regulation 9 (1): 79–98. https://doi.org/10.1017/err.2017.78.Search in Google Scholar
Van den Bremer, T.S., and F. Van der Ploeg. 2021. “The risk-adjusted carbon price.” American Economic Review 111 (9): 2782–810. https://doi.org/10.1257/aer.20180517.Search in Google Scholar
Viscusi, W.K. 2008. “How to Value a Life.” Journal of Economics and Finance 32 (4): 311–23. https://doi.org/10.1007/s12197-008-9030-x.Search in Google Scholar
Voigt, C. 2021. “The First Climate Judgment before the Norwegian Supreme Court: Aligning Law with Politics.” Journal of Environmental Law 33 (3): 697–710. https://doi.org/10.1093/jel/eqab019.Search in Google Scholar
Wagner, G., and M.L. Weitzman. 2016. “Climate Shock.” In Climate Shock. Princeton: Princeton University Press.10.1515/9781400880768Search in Google Scholar
Weitzman, M.L. 2007. “A Review of the Stern Review on the Economics of Climate Change.” Journal of Economic Literature 45 (3): 703–24. https://doi.org/10.1257/jel.45.3.703.Search in Google Scholar
Weitzman, M.L. 2009. “On Modeling and Interpreting the Economics of Catastrophic Climate Change.” The Review of Economics and Statistics 91 (1): 1–19. https://doi.org/10.1162/rest.91.1.1.Search in Google Scholar
Willis, R., N. Curato, and G. Smith. 2022. “Deliberative Democracy and the Climate Crisis.” Wiley Interdisciplinary Reviews: Climate Change 13 (2): e759. https://doi.org/10.1002/wcc.759.Search in Google Scholar
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Articles in the same Issue
- Frontmatter
- Articles
- Should Courts Decide Climate Policies?
- On the Role of Courts in Climate Policy: Comment on Lando
- Origins of the Economic Approach to Crime and Punishment
- Are Individual Care Investments Affected by Past Accident Experiences?
- Penalizing Shirking in Discovering Unsuitability
- The Disavowal of Decisionism: Politically Motivated Exits from the U.S. Courts of Appeals
Articles in the same Issue
- Frontmatter
- Articles
- Should Courts Decide Climate Policies?
- On the Role of Courts in Climate Policy: Comment on Lando
- Origins of the Economic Approach to Crime and Punishment
- Are Individual Care Investments Affected by Past Accident Experiences?
- Penalizing Shirking in Discovering Unsuitability
- The Disavowal of Decisionism: Politically Motivated Exits from the U.S. Courts of Appeals
