The US federal courts' deliberate approach : shaping their role in climate reform through procedural tools

• Main Author: McDonald, Morgan
• Language: English
• Published: University of British Columbia 2013
• Online Access: http://hdl.handle.net/2429/43799

Robust scholarly discussion covers recent climate change litigation. Building off these insights, this article contributes to forthcoming litigation by considering how calculated decisions illuminate the role federal courts are willing to play in current and future climate reform. U.S. federal courts have taken a purposeful approach to climate decisions, allowing them to form the path this growing form of litigation will take. Expanding on Hari Osofsky’s suggestion that the Supreme Court has acted with the aim to “shape its role” in the climate debate, I consider how federal courts have used procedural doctrines to limit immediate climate litigation to judicial review over common law claims. Interestingly, the courts’ approach seems to leave channels open for future court involvement subject to the legislative and executive branches’ impending moves. Specifically, I have found that U.S. federal courts have stalled in fully opening the courtroom doors to climate litigants. Rather, they have written decisions in a deliberate manner, building one step at a time without permanently closing the door to litigation while maintaining their flexibility to become more involved in future climate reform if necessary. Consequently, these decisions illustrate the role courts see for themselves, which is important to guide future climate litigation efforts. Since I find litigation complements alternative climate reform attempts, my intention is to decipher the courts’ path to provide a guide future litigants may consider to most efficiently reach their climate reform goals. Although much climate law manifests at the domestic level, U.S. precedents can set trends internationally. Thus, many other courts may react to the approach U.S. courts take, either adopting or rejecting it in their own paths to climate reform. Accordingly, this study contributes to the international climate litigation discussion by providing elucidation into the U.S. sphere, the trends from which will influence law and decision makers globally in their own future paths through climate litigation.