chevron-down Created with Sketch Beta.


Lost in Translation: An Argument for Following International Jurisprudence on Climate Change, and Its Projected Impact on U.S. Law

Lawrence Polk Keating


  • Considers two prominent international cases that illustrate a shift in courts globally to acknowledge climate change.
  • Advocates for corresponding changes in the United States’ approach to climate change.
  • Explores political and practical implications, and their impact on the larger conversation on climate change.
Lost in Translation: An Argument for Following International Jurisprudence on Climate Change, and Its Projected Impact on U.S. Law
DNY59 via Getty Images

It is not without irony that climate change is one of the most hotly debated issues in the United States. What began as a scientific question has been baptized in political fervor, becoming inexorably entwined with people’s political and even moral identities. However, where the political disagreement over climate change has only become more contentious, academic and scientific communities have shifted to overwhelmingly confirm the existence and threat of climate change. It is in this context that courts, when tasked with confronting climate change, have struggled. They have difficulty disentangling judicially palatable rulings from sweeping political consequences, leading many jurists to simply avoid the issue altogether. American courts should seek to cure this reticence by looking outward: foreign jurisprudence shows that the current scientific consensus has equipped courts with new tools to more effectively adjudicate disputes involving climate change.

In countries where political parties are more closely aligned on climate change, courts have begun the arduous task of defining clear standards regarding climate change and environmental preservation. These cases illustrate that confronting climate change in the courtroom is not as controversial as the quarreling in the United States suggests. Moreover, these cases offer meaningful instruction for courts struggling to determine how climate change intersects with domestic law.

This two-part article will show that the judicial tools to achieve this change have already been devised in foreign courts. Part I will explore various legal theories advanced in United States’ courts seeking to enforce environmental protections. Part II will consider two prominent international cases that illustrate a shift in courts globally to acknowledge climate change. Reflecting on these cases, Part II then advocates for corresponding changes in the United States’ approach to climate change. This article will conclude by exploring the political and practical implications, and their impact on the larger conversation on climate change.

Part I. U.S. Jurisprudence

Several lawsuits in the United States have sought to accommodate climate change in existing law. These cases demonstrate that judges are often skeptical of novel theories about public and private obligations in the context of climate change, preferring to leave thorny policy questions to the legislative and executive branches. However, not all efforts to address climate change in the courtroom have been unsuccessful, indicating there is some—if limited—opportunity for progress.

A. Massachusetts v. EPA

Massachusetts v. EPA, one of the first environmental lawsuits heard by the U.S. Supreme Court, helped shape the legal landscape surrounding climate change. The matter began when several private organizations petitioned the Environmental Protection Agency (EPA) to regulate greenhouse gases (GHG) now commonly understood to contribute to climate change. The request was made pursuant to the Clean Air Act (CAA), obligating the EPA to regulate “any air pollutant” produced by motor vehicles that the EPA determined to contribute to air pollution or might reasonably be believed to endanger public health. The EPA denied the request on the grounds that: 1. the CAA did not give the agency authority to address climate change, and 2. existing executive policy on climate change rendered EPA regulation in the same area improper. Plaintiffs, joined by several states and local governments, petitioned the D.C. Court of Appeals for review and were denied. Parties successfully petitioned the Supreme Court to address two issues: whether the EPA had authority to confront climate change and if petitioners had standing.

The Court first turned to the question of standing. Narrowing its analysis to state parties, the Court reasoned that states were a distinct type of litigant with a special and independent interest “in all the earth and air within its domain.” In surrendering their sovereignty to the Union, the states vested certain obligations in the federal government to protect this interest. Later referred to as “special solidarity,” this unique interest entitled state parties to a relaxed standard of standing in the context of environmental protection.

The Court then satisfied itself that the state parties met the individual elements of standing: injury, causation, and remedy. Under the special solidarity standard, the dangers of climate change posed a significant enough threat to state parties’ environmental interest to meet the injury requirement. The Court also held that there was a sufficient causal relationship between the EPA’s failure to regulate GHG and the alleged harms. And although the EPA could not necessarily reverse the effects of global warming, the possibility of slowing or reducing its effects was sufficient to satisfy the remedy requirement.

Moving to the merits, the Court employed textual analysis to conclude that it was within the authority of the EPA to regulate air pollutants contributing to climate change. The CAA’s sweeping definition of “air pollutant” evidenced a strong mandate from Congress to regulate a wide variety of pollutants, casting doubt over the EPA’s more narrow interpretation. The Court also rejected the EPA’s argument that subsequent congressional action addressing climate change limited the scope of the CAA, finding that additional efforts to confront climate change would only compliment the EPA’s obligations under the act, not diminish them.

The Court went on to conclude that the EPA failed to meet its “clear statutory command” to regulate GHG, and its denial of petitioners’ request was arbitrary and capricious. The Court was careful to distinguish that it was not second-guessing a policy decision, but was merely determining that the EPA’s proffered reasons for its decision were insufficient under the statute. On remand, the EPA would later conclude that all gases in plaintiffs’ petition were reasonably anticipated to endanger public health and welfare.

Massachusetts remains pertinent in several ways. As early as 2007, the Court acknowledged the mounting evidence establishing the disastrous and irreversible threat of climate change to the environment. Importantly, the Court rejected the argument that the harms caused by climate change were too generalized or widespread for the purpose of establishing standing, albeit under a relaxed standard. Today, this decision represents a high mark for judicial engagement with climate change and has since been interpreted narrowly. Critically, the Court left open whether non-state parties had standing, stunting future claims. Moreover, the Court was only interpreting the EPA’s obligation under the CAA, which has undercut the case’s application in other matters. Lastly, the Court’s decision was not unanimous; one of the two dissenting opinions expressed what are now common objections to cases in involving climate change. Chief Justice Roberts felt there was insufficient causation between the EPA’s refusal to regulate and the alleged harms, and that the harms themselves were too speculative. He went further to chide the majority for exceeding the role of the judiciary and for encroaching on the political branches’ authority.

B. Native Village of Kivalina v. Exxon Mobil Corp.

Successive attempts to pursue claims based in climate change were not as successful. In Native Village of Kivalina v. Exxon Mobil Corp., a native coastal village in Alaska and its nearly 400 residents filed a nuisance claim against a collective of oil and energy companies. Plaintiffs alleged the village was becoming inhabitable due to global warming and sought to recover the cost of relocation. Plaintiffs’ cause of action derived from federal common law, bolstered with support from recent environmental victories such as Massachusetts. Defendants moved to dismiss the suit on the grounds that it violated the Political Question Doctrine, and because plaintiffs failed to establish standing under the federal common law of nuisance.

The Political Question Doctrine provides that courts do not have jurisdiction to adjudicate claims requiring the judiciary to resolve a political question better reserved for the legislative or executive branches. Subject to recent reinvention, the doctrine has evolved into an affirmative power the judiciary may use to dismiss cases of its own volition, cases which are deemed to implicate issues outside the court’s expertise or are reserved for another branch of government.

In Kivalina, the court found the doctrine supported dismissal. The court felt it would have to make political determinations, including “who should bear the cost of global warming,” to resolve plaintiffs’ claim. Specifically, the trier of fact would have had to compare the benefits of fossil fuels relative to renewable alternatives, effectively making policy evaluations outside the court’s expertise.

The court continued its analysis by finding that plaintiffs also failed to establish causation. Under traditional nuisance law, the alleged harm caused by global warming and defendants’ emissions of GHG were too attenuated to support standing. Moreover, the court felt that the causes of global warming were too generalized to establish liability for this select group of defendants, noting that climate change had been a global phenomenon since the industrial revolution, well before defendants existed.

In its analysis, the court rejected plaintiffs’ argument that as a local government, it was entitled to special solidarity via Massachusetts. The cases were held to be distinguishable because plaintiffs sought money damages from a private party, as opposed to enforcing a procedural right, which did not comport with the “quasi sovereign interests” observed in Massachusetts. The court went further to narrow Massachusetts by holding that only states, by virtue of ceding to the Union, were entitled to a more deferential standard. The case was accordingly dismissed and has become emblematic of the judiciary’s refusal to adopt the reasoning in Massachusetts in other matters. The dismissal was later affirmed by the Ninth Circuit, which relied critically on the Political Question Doctrine, declaring unambiguously “the solution to Kivalina's dire circumstance must rest in the hands of the legislative and executive branches of our government, not the federal common law.”

Kivalina surely came as a disappointment to those hoping Massachusetts would do more to advance claims involving climate change, however it is unsurprising that nuisance law was not hospitable to plaintiff’s claim. The federal common law of nuisance creates a cause of action between definite parties for discrete injuries. Global warming involves neither: the harms are generalized, and the causes are so widespread that it is difficult to attribute causation to a particular group. The court in Kivalina was not willing to overlook these incongruencies, as in Massachusetts, without encouragement from Congress, such as the CAA. It was even more weary of doing so where plaintiffs sought to hold private parties liable for money damages. This would have been an unprecedented expansion of liability for energy companies, who would then surely face a torrent of litigation, regardless of their liability to Kivalina. Although not explicitly stated, the court likely had strong reservations about disrupting an essential industry, and one with significant political capital. Kivalina also underscores a common retort to climate change lawsuits: the Political Question Doctrine provides a convenient means to dismiss a case without wading into irksome merits.

C. Juliana v. U.S.

More recently, another case from the Ninth Circuit indicates that U.S. courts may be ready to engage climate change on a more substantive level: Juliana v. United States. An environmental organization joined by individual plaintiffs filed suit against a host of federal government actors for continuing to “permit, authorize, and subsidize” fossil fuels contributing to climate change.These actions allegedly contributed to a wide variety of injuries ranging from psychological harms and exacerbated medical conditions to impaired recreational activities and property damage. Plaintiffs’ claims alleged violations of Public Trust law and Fifth and Ninth Amendment rights, including a claimed right under the Due Process Clause of the Fifth Amendment to a “climate system capable of sustaining human life.” For remedy, plaintiffs sought a court order directing the government to implement a plan to phase out fossil fuel emissions and reduce excess carbon dioxide in the atmosphere. The district court denied defendant’s motion to dismiss, finding that the claimed Due Process right existed and that plaintiffs had standing. Defendants promptly appealed to the Ninth Circuit.

Much like the Supreme Court in Massachusetts, the Ninth Circuit had no difficulty finding there was overwhelming evidence confirming the existence of climate change and the impending danger posed to society. The court also held the record conclusively established that the federal government was aware of these risks and nevertheless continued, both actively and passively, to support the fossil fuel industry. The court wrote passionately, “[a]bsent some action, the destabilizing climate will bury cities, spawn life-threatening natural disasters, and jeopardize critical food and water supplies.” It might seem strange—or tragically unsurprising—that the court concluded this rousing call to action by dismissing the case.

Assuming but not deciding that the claimed constitutional rights existed, the court ruled that plaintiffs failed to establish standing. The Ninth Circuit agreed with the district court that plaintiffs met the injury and causation requirements, reaffirming that it did not matter how widespread the effects of global warming were so long as the claimed injuries were “concrete and personal.” Citing Massachusetts, it also found there was sufficient causation between U.S. fossil fuel production and global warming. It importantly rejected an argument echoing Kivalina that U.S. contributions to climate were too attenuated from its affects, providing there was at least a genuine factual dispute as to whether 50 years of U.S. policy supporting fossil fuel production was a substantial factor in plaintiffs’ injuries. Ironically the court made short work of these determinations, which have stifled similar claims, but faltered when it reached redressability.

The court’s principal concern was that it lacked the power to deliver a remedy capable of alleviating plaintiffs’ injuries. The court held that plaintiffs’ proposed order directing the government to develop a plan to reduce carbon in the atmosphere would usurp the political powers of the legislative and executive branches and was outside the power of an Article III court.[.35] Subsequent review of a governmental plan would require setting objective standards outside the court’s expertise. It considered that a declaratory judgment might be of some comfort to plaintiffs but would do nothing to address the effects of climate change and was therefore unwarranted. In its closing lines, the opinion observes that action must be taken to mitigate climate change—just not by the judiciary.

The Ninth Circuit’s opinion was not unanimous. Judge Stanton issued a dissenting opinion, which criticized her colleagues for “throw[ing] up their hands” in the face of climate change. While she agreed that no single lawsuit could remedy the effects of global warming, she differed on other key points of analysis. First, Judge Stanton accorded much more weight to plaintiff’s fundamental rights: “[p]laintiffs bring suit to enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation's willful destruction.” She also emphasized the catastrophic, irreversible effects of climate change projected by plaintiffs’ experts, and that the claimed injuries were “just the first barbs of an ongoing injury flowing from an ongoing violation of plaintiffs' rights.” The combination of these factors warranted a more deferential standard for standing as in Massachusetts, including the remedy.

Judge Stanton rebuked the majority for essentially applying Political Question Doctrine analysis in its evaluation of redressability. She rejected the notion that it would be outside the court’s expertise to evaluate a plan proposed by the government, arguing that standards could be created using scientific evidence rather than policy evaluations. She noted that it would not be the first time the courts were required to evaluate such a plan in defense of a fundamental right, analogizing to Brown v. Board of Education. As in Brown, the appropriate remedy implicated complex policy considerations, but did not place the matter beyond the court’s reach. Courts have found judiciable resolutions to politically charged issues on many occasions such as those involving prenatal life, marriage rights, and religion. Judge Stanton concluded by warning that the federal bench would not be judged kindly for failing to act, much as it is now for the 91-year delay between the Emancipation Proclamation and Brown.

The majority in Juliana declined to let the case proceed over the pointed objections of Judge Stanton, but the decision still represents a leap forward in climate change jurisprudence. Notably absent in the opinion was any hostility toward plaintiffs’ claimed constitutional right. The court treated the existence of such a right as an open question, finding that courts have already come out on either side of the issue. Juliana suggests the principal obstacle to a judicial ruling on climate change is not whether such a right exists, but whether claims based on climate change establish Article III standing. Just as importantly, courts have tipped their hands by employing the Political Question Doctrine either directly as in Kivalina or indirectly as in Juliana. Judge Stanton suggested a solution to this problem: using science in the place of policy, a practice that has already been successfully deployed in foreign courts. If a U.S. court can be convinced that the same practice would survive under the Constitution, there will be little room to argue against its application.

Together these cases illustrate that progress in U.S. jurisprudence in responding to climate change is slow-moving, hampered by legitimate concerns for the separation of powers and by the political umbra cast over climate change that renders its discussion in courts unpalatable. Part II of this article will explore foreign decisions contemplating the kind of remedy proposed by Judge Stanton, which demonstrate that the judiciary can provide the requested relief without usurping the role of the political branches.

Part II. Foreign Jurisprudence

U.S. courts’ limited approach to climate change was more appropriate when the science surrounding global warming was less definitive. The judiciary is right to exercise caution where it might encroach on territory that is reserved for the legislative and executive branches under the Constitution. However, in recent years, the balance of these considerations has shifted to favor judicial intervention as the dire consequences of global warming have come into focus. The U.S. now trails behind foreign courts that have taken the leap to recognize this shift in the courtroom.

A. Norway

In 2014, Norway became one of many countries to adopt a formal right to a viable environment into its constitution. Article 112 of the Norwegian Constitution provides that every citizen has the right to an environment conducive to public health and obligates the government to manage natural resources for the benefit of future generations. Concern for climate change, however, was not the sole animus for this constitutional change. This right was part of a larger amendment to incorporate international human rights standards into Norwegian domestic law, the country’s most significant amendment in 200 years. Accordingly, the right has been interpreted as subordinate to the country’s commitment to strengthening human rights standards, rather than an explicit mandate for environmental protections.

In this context, it is easier to understand a controversial decision recently issued by a Norwegian court. In People v. Arctic Oil, two environmental groups filed suit against the Norwegian national government for granting oil licenses in the Arctic Barents Sea, alleging the new licenses contravened the Paris Agreement and violated citizens’ Article 112 constitutional right. Constitutional environmental rights are rarely litigated in court and so the case was anticipated to set an international precedent. In a mixed ruling, the court found that Article 112 of the Norwegian Constitution created a cause of action, the harms resulting from climate change fell within the right’s scope, but the licenses did not violate the right. The decision turned on two legal determinations: 1. the court could only assess the impacts of global warming within Norway, which it held to be “more limited and of a different nature” than the effects of climate change globally; and 2. there was no “real and immediate” risk of harm to life resulting from the additional licenses. Following two appeals, the case would later be dismissed in a fractured opinion issued by the Norwegian Supreme Court, agreeing that the oil permits did not violate the Article 112 right. Four judges dissented from the opinion, writing that the majority failed to fully consider environmental impact of fossil fuel production in Norway, western Europe’s largest oil producer. Activists responded by formally requesting that the European Court of Human Rights (ECHR) review the proposal and consider possible violations of their fundamental human rights. The ECHR, which has recently handed down a line of decisions indicating increased appetite for addressing climate change, has yet to respond.

Artic Oil illustrates there are no perfect solutions, even constitutional ones, in this debate. If a similar constitutional right were found in the United States, Arctic Oil suggests that its application may be limited. Agencies would retain discretion to make on-the-ground policy decisions and remain subject to other government interests. Critics note that Norway is financially dependent on its oil and gas reserves, which may have been a silent factor in the court’s consideration.

However, the suit’s failings in Norway signal room for growth in the United States. Instead of emphasizing separation of powers concerns, the court attacked the causal relationship between carbon emissions and the harmful effects of climate change. While troubling for Norway, the United States already has significant precedent affirming this causal connection in cases like Massachusetts and Juliana. Judges that have lamented plaintiffs’ sympathetic claims would be judiciable but-for the Political Question Doctrine have inadvertently provided powerful authority affirming the causal connection between climate change and its effects on injured parties.

B. Netherlands

Despite the international precedent set in Artic Oil, the Hague more recently set a new high mark for judicial intervention in response to climate change. In State of the Netherlands v. Urgenda Foundation, an environmental group (the Foundation) sued the national Dutch government for failing to adhere to its own carbon-emissions goals, in violation of its commitments under the Paris Agreement and to the European Union. The Netherlands is historically a leader in the global effort to reduce climate change, but received criticism for increasing its reliance on fossil fuels during the 2010s. The claim in Urgenda was premised on a novel legal theory asserting liability for violations of European Union human rights law rather than domestic law, and similar to Juliana, sought a court order directing the government to honor its prior commitments.

In a landmark decision, the District Court for the Hague ruled for the Foundation and ordered the government to reduce its carbon emissions by 25 percent from 1990 levels before 2020. In doing so, the court rejected the government’s argument that the Netherlands contribution to climate change was negligible compared to other countries: “The state should not hide behind the argument that the solution to the global climate problem does not depend solely on Dutch efforts. Any reduction of emissions contributes to the prevention of dangerous climate change and as a developed country the Netherlands should take the lead in this.” The court justified its decision over separation of powers concerns, stating it was merely enforcing the minimum requirement to avoid dangerous climate change, as provided in the international report which informed the Netherland’s earlier commitments. The Court of Appeals affirmed the decision, holding that the separation of powers was not violated because the legislative branch retained the ability to set specific policies to comply with the order. Moreover, the court had a special interest in ensuring human rights were being observed, warranting judicial intervention. The Netherlands Supreme Court later rejected the government’s application for appeal.

Urgenda demonstrates that the type of ruling advocated for in Judge Stanton’s dissent is possible. It sets a global precedent for a court prescribing a government plan for reducing carbon emissions without usurping the powers of the political branches. As Judge Stanton described, this was possible by relying on scientific, rather than political, evaluations. There are however several factors that distinguish the case from those like Juliana. Foremost is the heavy reliance on international human rights obligations. By enlisting human rights law, the Foundation received more deference than something like nuisance law would provide. Relying on international law may have also helped to overcome doubts about territorial application as in Arctic Oil. Second, the Netherlands’ self-image as a leader in the charge against climate change may have spurred the judges to act where others have not. The Hague too has its own reputation for advancing international law in unprecedented ways that may have emboldened the court. Lastly, the District Court’s opinion lacks an enforcement mechanism for violating the court order. This fatal defect in Juliana had little bearing on the court’s analysis, and with good reason: even without the threat of judicial sanctions, the Netherlands has accelerated its efforts to reduce emissions. It seems that fear of public embarrassment resulting from violating the court order was enough to prompt meaningful action.

The world has taken notice: Urgenda inspired a host of similar lawsuits throughout Europe. These cases demonstrate the way in which domestic norms are influenced by neighboring court rulings, an influence that extends beyond the judiciary. For example, the Danish government recently passed a law establishing an enforcement mechanism to compel compliance with the Paris Agreement, whereby the governing party in Parliament will lose its majority should the country fail to meet its obligations.

III. Advancement in U.S. Law

Arctic Oil and Urgenda evidence a change in the world’s understanding of climate change. Norway and the Netherlands are among the first nations to react, but as the weight of scientific authority continues to stress the need for urgent action, they will not be the last. While U.S. courts have understandably exhibited reticence about moving forward with climate change suits, the time has come to acknowledge and protect citizens’ rights in the face of impending disaster.

In defeat, the plaintiffs in Kivalina and Juliana have illuminated a path forward. The two most significant impediments to lawsuits of this nature are finding a cause of action in a doctrine of law amenable to standing and the Political Question Doctrine. The solution to both begins with establishing an individual, fundamental right to a viable environment under domestic law. The right might be adopted through new legislation or derived from existing law: Judge Stanton inferred the existence of this right based on the structure of the Constitution and the doctrine of Public Trust. As noted in Juliana, the presence of an existing right is ripe for review with differing opinions already occurring in the lower courts. Having already decided Massachusetts, this would be familiar territory for the Supreme Court, and whose continued silence might become a source of international embarrassment as foreign courts allow their citizens to more fully protect their rights. One academic speculates the doctrine of Public Trust might have already been interpreted to include this right if not for the prolific development of resource management laws during the 1970s, providing an attractive alternative for litigation and leaving Public Trust in disuse. Perhaps most obviously, public policy favors the establishment of this right. The majority in Juliana called on the political branches to act, but the time is fast approaching where no branch of government will have the power to mitigate the effects of climate change. The right should be recognized so that claimants can challenge acts contributing to global warming before they are subject to its catastrophic effects.

The intended benefit of establishing this right would be to provide individuals the same relaxed standard as special solitude in Massachusetts. The threats posed by climate change do not sit comfortably within conventional notions of Article III standing, but this does not mean that the underlying claims are not meritorious. The world has never faced a threat like global warming, and courts should recognize that they will need a specialized approach to respond appropriately. In the short time between Kivalina and Juliana, the Ninth Circuit has already made progress in this regard, finding in Juliana there was sufficient causation between the government’s actions and plaintiffs’ injuries. The analysis in Arctic Oil and Urgenda bolsters this determination: the compelling interests at stake demand courts eschew a conventional understanding of causation. It is true that governments and private entities have contributed to global warming for centuries, but this should not relieve parties currently contributing to global warming of responsibility for their actions. This reasoning should similarly be applied to redressability: a single court order in the Netherlands cannot not by itself alleviate the effects of global warming, however this does not mean plaintiffs receive no benefit. The Juliana majority should have recognized that while a single court order might be insufficient to provide plaintiffs relief, that relief might only begin with a single order. By establishing a precedent that encourages other courts to take up climate change, the court would help cure its perceived issue with redressability.

Recognizing such a right would also put pressure on courts to take more significant action to protect plaintiffs’ interests. Courts in the past have rendered sweeping orders to the government in defense of a fundamental right, and the same analysis is applicable to climate change. Although no less mired in political controversy, decisions like Brown stand among the brightest moments in the judiciary’s history. Urgenda already serves as an example of this in the context of global warming, having delivered significant change without exceeding the power of the judiciary.

The most basic utility derived from looking to foreign jurisprudence is that cases like Arctic Oil and Urgenda demonstrate climate change is simply not as political as it once was. Where there was once room to argue about the existence of climate change, there is now an overwhelming scientific consensus. A ruling on climate change is not about vindicating the views of a political party; it is about respecting scientifically determined minimum countermeasures to avoid irreparable damage. Domestic judges should feel increasingly uncomfortable using the Political Question Doctrine to dismiss cases involving climate change as foreign courts use science to reach judiciable resolutions. It is possible this transition is already taking place: The Ninth Circuit employed Political Question Doctrine analysis but refused to call it by name when it relegated its discussion to the issue of redressability. This may have been a convenient way to dismiss the case without admitting that it was treating climate change as a political issue.

A. Enforcement

The Juliana majority doubts that the judiciary can order meaningful remedy for plaintiffs without usurping the political branches’ power. Urgenda shows that in defense of a fundamental right, this is not necessarily true. The Hague crafted a meaningful court order without making political evaluations, and U.S. courts should follow suit. In Urgenda, the court critically relied on the government’s prior commitments to reduce carbon emissions in determining what minimum standards were appropriate. A U.S. court could similarly look to previous statements made by the political branches as evidence of what measures are necessary to protect Americans’ rights. The Urgenda court also respected the political process by allowing Parliament to set its own policies to fulfill its obligations under the court order. U.S. courts have issued similar orders on several occasions in cases involving issues like racial segregation and prenatal life.

Lastly, establishing a right to a viable environment is not the same as guaranteeing stronger environmental protections. Judge Stanton believed the claimed right did not entitle plaintiffs to freedom from climate change entirely, but only “irreversible and catastrophic climate change.” This limited right would only enable plaintiffs to challenge those governmental actions with dire consequences. As observed in Arctic Oil, government authorities retain discretion to make policy determination in line with other government interests. The right merely ensures that a sustainable environment free from catastrophe (to the degree that humans can control) is one of those interests.

B. Politics

Adopting this foreign approach would not displace political discourse in the United States, as some judges have feared. A fundamental right in the environment would merely establish a baseline for the political branches to meet with their own policies. Imposing such accountability is an essential function of the separation of powers, not a violation, and is part of how branches legitimately influence each other. A laudable example can be found in the Danish legislature, which roused by neighboring lawsuits, passed one of the world’s most ambitious commitments to combat climate change into legislation. The Supreme Court itself acknowledged this relationship in Massachusetts when it relaxed the standard of redressability because “there [was] some possibility that the requested relief [would] prompt the [government] to reconsider the decision that allegedly harmed the litigant.” A judicial order confronting the dangers of climate change might even reach the people themselves, impressing upon people the need to act and elevating the conversation above petty politics.

This relationship flows both ways: the judiciary is not entirely free from political influence despite its constitutional insulation. The Supreme Court expressed doubt about the continued viability of the Juliana case, an attitude that likely became more entrenched with the Court’s recent shift to a conservative majority. However, this Article argues that the above transition can and should occur outside the realm of politics. The danger of climate change is a scientific reality, not a political opinion, and those most imperiled by that danger should have their day in court.