Volume 21: Issue 1 (2024)
Judicial Role Morality in Climate Change Litigation: An Embrace of Two Principled Lenses
Hassan M. Ahmad
Domestic judges sit in a unique position. They can combat unabated climate impacts in a way their political counterparts cannot—and have not. This article takes a partisan view to argue for a principled yet provocative judicial role morality such that judiciaries can consistently adjudicate private and public law claims that are aimed at confronting an inevitably inhabitable planet. Climate change litigation that has and will continue to manifest controversial and complex doctrines and principles requires judges to step outside their historically confined role as interpreters of existing law. Judiciaries that hear climate-related claims would be well served to adopt a Dworkinian rights-based rule of law— one that accords with elements of Habermas’s co-originality thesis. This expansive adjudicative scope would necessitate consideration of the morally soundest justification of the rulebook of existing doctrines in a way that intends to respond to the urgency and dire consequences that climate change poses. In the absence of relatively more sweeping legislative and policy measures promulgated by the political branches of government, independent judiciaries may be an effective end-around to achieve robust climate policies.
Antoine Laurent
Since the landscape links nature and the society that inhabits and develops it, the question of its protection concentrates the issues and difficulties of the plurality of interests involved in sustainable development. A recent ruling by France’s Conseil d’Etat provides food for thought in this regard, in which the tension between ecology, which argues in favor of wind power development, and culture, which opposes landscape changes echoing a major literary work, Proust's La Recherche, is highlighted.
Two questions are thus intertwined: the first, technical, concerns the inclusion of an intangible dimension in landscape protection, i.e. consideration of its link with a cultural work, independently of its physical characteristics. The positive response to this question stems from the very notion of landscape, which links nature to its perception by human beings, the latter including the culture that permeates and shapes it.
The second, more general, concerns the reconciliation of the various societal interests sought by sustainable development, and leads to the identification of proportionality as the underlying principle of jurisdictional reasoning. Indeed, in view of the risk of a generalized protection of the landscape through an exacerbated cultural dimension, which would hinder any wind farm project, it is advisable to widen the focus by taking into account the other interests at stake - in this case, the architectural heritage and economic life around the site - and the degree of damage caused by the wind turbines. It is through this approach to proportionality that the protection of the “cultural landscape” does not necessarily lead to an irresolvable tension between ecology and culture, and that the search for a more comprehensive harmony is made possible through a contextualized and nuanced decision.
Unlocking the Black Box: Navigating the Boundaries of Judicial Review of Regulations Post-Vavilov
Andre Matheusik
This article examines the judicial review of delegated legislation after the Supreme Court of Canada’s 2019 landmark administrative law decision Canada (Minister of Citizenship and Immigration) v Vavilov. Using environmental regulations as an example, the article focuses on Cabinet-enacted regulations—a delegated instrument that has traditionally demanded significant judicial deference on review—and considers the recent trend of appellate courts to follow Vavilov’s presumption of reasonableness when determining the standard of review. Delegated legislation is an important, but not often discussed, tool for Canadian legislatures to implement and create laws via the executive branch of government. However, because of Canada’s flexible relationship between the legislature and the executive, this important lawmaking tool may sometimes become a backdoor method for governments to create laws that would not be politically desirable for the legislature to pass directly, where they would be open to criticism, debate, and vote. While critics might view judicial interference with the legislature and executive’s delegation relationship as inappropriate, I argue that a more searching judicial review of regulations under Vavilov strengthens the separation of powers and upholds the rule of law. Although courts will not question the policy wisdom of delegates, Vavilov’s reformulated reasonableness constraints may require the executive to more thoroughly justify their delegated lawmaking through the regulatory record. Under this approach, the legislative branch still maintains sovereignty. Subject to the visibility of primary lawmaking, legislatures may ultimately restrict judicial review to the extent constitutional via legislated standards of review.