What climate litigation reveals about judicial competence

Abstract

In recent years, the US and the Netherlands have been on opposing sides of the spectrum regarding climate litigation. Dutch courts, in several revolutionary climate cases, have been an arena of societal change, whilst climate claims in the US have been largely unsuccessful. In a way this difference seems strange, because the US judiciary has the power of constitutional review, whilst the Dutch judiciary does not. Against that background, this paper extensively compares the doctrines of judicial competence regarding political questions in both jurisdictions. As a comparative framework, this paper uses three judicial phases, namely: the institutional phase, the substantial phase, and the remedial phase. Climate litigation reveals that the Dutch doctrine of judicial competence is focused on the substantial and remedial phases, which has allowed it more freedom in reviewing climate litigation. On the other hand, climate litigation reveals that the US doctrine of judicial competence is focused on a strict institutional phase, dominated by the Political Question Doctrine (PQD). The main contribution of this paper to the constitutional debate is that climate litigation reveals fundamental differences in doctrines of judicial competence. This is not only an important takeaway for future climate litigation, but also, in terms of the Radbruch formula, for other potential gaps between the executive and justice.