By: Matthew Schneider
The annual Gilbert and Sarah Kerlin Lecture on Environmental Law was held on Monday, November 13, 2017 at Elisabeth Haub School of Law and was presented by the newly appointed Haub Distinguished Professor of Environmental Law, Katrina Fisher Kuh. The title of the lecture was Against the Will of the People for the Good of Humankind: The Counter-Majoritarian Difficulty and the Role of Courts in an Environmental Democracy.
Professor Kuh has an impressive background in environmental law that makes her more than qualified to be the 2017 speaker at the Kerlin Lecture on Environmental Law. Formerly an Associate Dean from the Maurice A. Deane School of Law at Hofstra University, she has been widely published for her work which focuses on climate change, sustainability, and second generation environmental challenges. In addition, she is the co-editor of The Law of Adaption to Climate Change: United States and International Aspects.
The lecture began with Professor Kuh posing questions regarding the appropriate role of the judiciary in response to modern environmental challenges. A relevant topic considering the current administration, she wondered how emboldened courts should be when administrations try to pull back environmental regulations. She explained that often times the courts have been hesitant to step in and usurp the determinations of agencies and replace their judgment for theirs. This led her into her next question: “Should States adopt constitutional environmental rights that invite greater judicial involvement in defining environmental rights and responsibilities?” Professor Kuh has firsthand knowledge of this issue in recently chairing the New York State Bar Association Task Force on the Environmental Aspects of the New York State Constitution, where she recommended an amendment to Article 1 on establishing a constitutional right to a healthy environment.
Professor Kuh then went on to examine whether common law doctrines such as nuisance and the public trust were a viable option for the courts affect meaningful environmental change. She explained that the courts have historically dismissed these cases on the merits. For example, the acceptable amount of greenhouse gas was determined to be a legislative question not up for review by the courts. Also, a public nuisance claim brought by a village in Alaska that now has to be relocated due sea level rise was dismissed on the merits. These cases show the reluctance of the judiciary to step in and replace legislative interpretations for their own.
She concludes that there may be hope. The judiciary is in a special position to address the ongoing systematic deliberate distortion of science regarding climate change. Judicial review is hallmark of our democracy, and when a policy is in place that adversely affects the rights of a minority group of citizens it is within their power to do something about it. Since they are underrepresented in Congress. Here, the underrepresented group is the children. Using the public trust doctrine, a group of children brought a suit challenging their right to a healthy environment in Juliana v. United States. For the first time the Federal Court recognized the right of a healthy environment for the use of future generations, and did not dismiss the case on the merits. This case marks the best chance so far for courts to make a meaningful determination on the right to a clean environment. The case is still ongoing with oral arguments slated for December 2017, but if they prove victorious this case could help determine how environmental issues are determined by the courts going forward.