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Following the Science: Judicial Review of Climate Science

By December 1, 2023January 11th, 2024No Comments

Abstract: Climate change is the greatest existential crisis of our time. Yet, to date, Congress has failed to enact the broad-sweeping policies required to reduce greenhouse gas emissions at the rate scientists have deemed necessary to avoid devastating consequences for our planet and all those who inhabit it. In the absence of comprehensive legislative action to solve the climate crisis, the executive branch has become more creative in the use of its authorities under bedrock environmental statutes to develop new climate regulations. Environmental advocates, states, and industry groups that oppose such regulations or assert that agencies could accomplish more under existing statutory authorities often turn to litigation as a remedy. As more climate-related cases are litigated, judges will be tasked with evaluating an increasing volume of scientific research and factual determinations by federal agencies that inform environmental regulations. Many judges, however, are generalists, and may lack the scientific expertise to navigate climate science presented by parties without additional resources.

This Comment examines how judges can be responsive to science when issuing opinions and orders in climate litigation. It identifies the conundrum that arises when generalist judges are tasked with reviewing technical, political, and sometimes uncertain climate science. This Comment explores the standard of judicial deference that judges may provide to federal agencies. It also discusses potential tools judges could rely on when conducting a “hard look” review of agency science. This Comment concludes that to follow the best available science, judges may need to use a variety of tools to review agency science and afford the appropriate level of judicial deference to agencies. Parties advocating for climate action should keep these different tools and approaches in mind when pursuing climate litigation.

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