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The Judicial Activism of Inaction: India’s National Green Tribunal and the Reeducation of U.S. Jurists

  • Author(s): McDonald, Erika
  • et al.
Abstract

Around the world, a spate of successful and pending climate change lawsuits based on human rights and constitutional claims offers new hope as a means to compel meaningful government action to reduce global warming.  This trend stands in stark contrast to environmental jurisprudence in the United States, where not a single climate-related suit has been litigated on the merits.  This Comment challenges the conventional portrayal of the U.S. judiciary as exercising restraint in rejecting such suits for lack of standing.  It argues instead that judicial activism since the 1990s usurped legislative and executive action that supported not only carbon emissions reductions specifically but also, more generally, encouraged citizen access to federal courts as a tool for achieving environmental justice and protecting natural resources.  The following comparative analysis focuses on the approach of India’s National Green Tribunal as the quintessential embodiment of three principles that serve as a counterpoint to the rigidity of contemporary U.S. jurisprudence: environmental constitutional rights premised on due process and equal protection as opposed to the Commerce Clause, public interest litigation versus strict standing, and scientific expertise versus so-called judicial generalism.  The purpose of the analysis is to demonstrate the federal judiciary’s role in making the United States a global outlier in climate change policy.  It also argues for the need to reintroduce these principles, which inspired both India’s public interest litigators and amendments to key U.S. environmental statutes in the 1970s.  A return to these three principles would offer the best hope of unlocking courthouse doors to federal climate change litigation in the United States.

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