Introduction As a British judge with a special interest in environmental law, I have over the last two decades taken a particular interest in the developing role of the courts across the world in response to the challenges of climate change. In this article I shall look back at my perceptions of the responses of government agencies and courts over that period in the USA. We have gone from the ground-breaking decision of the Supreme Court in EPA v Massachusetts (2007)[1], which formed the basis of a strong EPA endangerment finding in 2009, and the central role of the USA in securing the critical Paris Agreement in 2015; to the election in 2024, for the second time, of a President who professes to regard climate change as a “hoax”, leading to the recent decision of the EPA to rescind the 2009 endangerment finding (having survived legal challenge for 17 years) on the ground that it never had power to make it in the first place.
As an interested legal observer, my reactions have moved from admiration, through frustration, to incomprehension, and near-despair. To American lawyers, the active involvement of a serving judge in this debate may seem surprising. I should explain that in the UK the reality of climate change and its causes weres not a contentious political issue during my time as a judge.
Our Climate Change Act 2008, which laid out a detailed legal framework for a programmes for cutting greenhouse gases up to 2050, was passed with all party support. It also established an independent expert Climate Change Committee to advise government on the programmes and to report to Parliament on their progress. Against this background of political consensus, there was no problem in me, as a serving Supreme Court justice, taking an active interest in the subject more widely.
The sharp contrast with some attitudes on the other side of the Atlantic was brought home to me in September. 2015, when, ahead of the COP 21 summit in Paris, I co-hosted on behalf of the UK Supreme Court, an international judicial conference in London on Climate Change and the Law.[2] The idea was to assemble a group of specialist judges from a number of different countries round the world, together with practitioners and academics, to look at the legal issues arising from climate change, and the role of the courts, national and international. We were supported by a strong introductory message from Charles, HRH Prince of Wales (as he then was), in which he spoke of “the appalling threat human-induced climate change poses to man’s future” and the “crucial role” of the courts in meeting the challenge.
In the months before our conference, there had been important judicial developments from very different legal systems – the Urgenda case in the Hague District Court in the Netherlands[3] and the Leghari case from the Lahore High Court in Pakistan[4]. Judges involved in both cases spoke at our conference of their experiences. In both cases, the national courts upheld challenges to their governments’ failures to implement effective policies to counter climate change.
The conference also included a public lecture at the Supreme Court by Professor Philippe Sands QC, viewable on line through our website. He looked at the possible role of international law, and the possibility of a small island state, affected by climate change, securing a UN resolution to refer the issue of state responsibility to the International Court of Justice. Shortly afterwards I learnt from our press office that the lecture had been picked up in an article by an American news organisation called Breitbart News (headed by one Steve Bannon).
The burden of the article was that I and my fellow judges were scheming to “close the argument for ever, using the sledgehammer instrument of the International Court of Justice”, thus leading to “an effective global ban on so-called ‘climate change’”. The Breitbart article concluded with the comment “Sands is a dangerous man; even more so the man who instigated the conference, a hitherto obscure activist judge called Lord Carnwath”. That was of course nonsense.
There was no question of closing down the debate on climate change, with or without the ICJ.[5] Fortunately my judicial colleagues did not take that too seriously. But I little thought that within a few years the views of Breitbart News, and of its director, would represent the prevailing orthodoxy in some US government circles. Consistency in the courts It is notable that during this period, regardless of the changing positions of successive Presidents, the recognition by the US courts of the reality of climate change and its causes, and of the responsibility of government to address it, has been unequivocal.
That was made clear in 2007 the judgment in the Massachusetts case itself. On a narrow view it was a decision on the meaning of the word “pollutant” in the EPA statute, specifically in relation to traffic emissions, on the EPA’s duties in respect of so-called “endangerment finding