In my previous writing on Sunoco v. Honolulu, I warned about the dangers of state courts overstepping their bounds in climate change litigation, threatening the delicate balance of federalism. Today, we must confront an even more insidious threat to our judicial system: the strategic influencing of judges on climate issues, potentially compromising the integrity and impartiality of our courts.
The Environmental Law Institute’s Climate Judiciary Project presents itself as an educational initiative for judges. However, its laser focus on climate change litigation raises alarming questions about the boundaries between judicial education and advocacy. This isn’t about judges learning the basics of environmental law or an unbiased view on climatology; it’s about preparing them for a specific type of lawsuit that should, by all rights, be, as a policy question, the purview of legislatures and executive agencies.
Consider the military strategy of Napoleon, who would concentrate cannon fire on a single point to create an opening for his cavalry. Similarly, the CJP appears to be targeting a perceived weak point in our judiciary — judges’ unfamiliarity with climate science — to pave the way for favorable rulings in climate lawsuits. This approach doesn’t just skirt the edges of propriety; it challenges the very foundations of the political question doctrine, which wisely advises courts to avoid areas better left to the political branches of government.
The case of Hawaii’s Supreme Court provides a troubling example of this strategy in action. Chief Justice Mark Recktenwald and Justice Sabrina McKenna have both participated in CJP activities focused on climate litigation. Coincidentally, or perhaps not, they subsequently handed a significant victory to Honolulu in its climate lawsuit against energy producers. This creates, at minimum, the appearance of prejudgment, a situation that would be unacceptable in any other area of law.
Moreover, the U.S. Supreme Court is currently considering whether it will grant review of Honolulu’s lawsuit against energy producers. The Supreme Court, in June, invited the U.S. solicitor general to submit a brief outlining the federal government’s position in the case. Beyond the merits that Hawaii’s state laws shouldn’t apply to claims over out-of-state activity, the U.S. Supreme Court should see Honolulu’s case for what it is: a decision handed down by biased Hawaiian Supreme Court justices who are clearly compromised given their ruling in favor of the plaintiffs and informed by their teachings of CJP seminars on climate litigation. This shroud of bias underlying the Hawaiian Supreme Court’s decision in the Honolulu case adds to the rationale for why the U.S. Supreme Court should grant review.
The CJP’s approach to influencing judicial perspectives on climate issues represents a dangerous shortcut around democratic processes. Rather than pursuing climate policy through legislative channels, where robust debate and compromise can lead to balanced solutions, advocates are attempting to use the courts as a fast track to impose sweeping changes. This strategy risks creating a patchwork of inconsistent, state-level judicial climate policies that could wreak havoc on national energy and economic planning.
Ultimately Moreover, courts are ill-equipped to handle the complexities of global climate policy. Judges, no matter how well-intentioned or educated on climate science, lack the resources and mandate to weigh the myriad factors involved in climate policy decisions. These include not just environmental concerns, but also economic impacts, national security considerations, and international relations — all areas traditionally and rightfully reserved for the political branches of government.
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As citizens, we must remain vigilant about these subtle yet powerful influences on our judicial system. The integrity of our courts is paramount, and even the appearance of bias can erode public trust in the justice system. While judges should certainly be informed about the issues they may face in court, there’s a fine line between education and indoctrination. In the case of climate litigation, it appears that line is being not just approached, but crossed.
The courts have long been a bulwark against overreach and a protector of individual rights. To maintain this crucial role, they must remain above the fray of political battles, no matter how important the underlying issues may be. As climate litigation continues to work its way through our court system, we must insist on true judicial impartiality, free from the hidden influences of advocacy disguised as education.
J.W. Verret is an associate professor of law at George Mason University’s Antonin Scalia Law School.
This article was originally published at www.washingtonexaminer.com
