All Hands on Deck: The Americanization of Climate Lawsuits?

Today, 4 November 2020 we probably awoke into uncertainty. It will take weeks or months before the US Election Day’s result is known and fully certified. Meanwhile, reproaches of “Americanization” are thrown to climate defenders in the Norwegian Climate Lawsuit, the only climate lawsuit ever filed in Norway, starting its proceedings under an uncertain weather in Norway’s Supreme Court, today.

A coincidence of events? This random overlap is more telling than it seems. If the US Election Day is charged with a heightened risk of clashes and seeds of chaos, compared to all other Election Days, the reason can be found in a degraded political culture, where democratic results are not accepted, and views become ever more polarized and partisan.

Across the Atlantic, in 2017, a dystopian future of undemocratic stances and partisanship was recalled in the opening statements concerning the Norwegian Climate Case. There, the government’s legal counsel maintained that challenging petroleum licenses in the Norwegian Arctic, as NGO plaintiffs were doing, was an attempt to “Americanize” Norwegian legal culture. The argument is two-fold. First, NGOs would mobilize the law for raising awareness on climate and petroleum policy in courts and society, while that policy belonged to the political branches. Second, NGOs would advocate for a liberal application of extant law, notably Norway’s constitutional provision protecting the right to environment (Article 112 of the Norwegian Constitution). Among the liberal interpretations chastised by the state lies also the consistent interpretation of Norwegian law with Norway’s international commitments, notably the Paris Agreement, a mechanism well known as the consistent interpretation of domestic law with international law.

In a recent revival of the argument, a third Americanizing feature is conjured up. If Norway’s Supreme Court allows environmental NGOs to sue the state in climate policy matters, let alone to win, the very nomination process of judges to Norway’s Supreme Court will be politicized, as the recent confirmation of Justice Amy Coney Barrett to the US Supreme Court foreshadowed.

This j’accuse to environmental NGOs in the Norwegian Climate Case seems to conflate two arguments. On the one side, the nomination process to Norway’s Supreme Court is perfectable: judges fail to represent the geographical and cultural diversity of the country, and the nomination process is not fully transparent, as experts have pointed out. But the need for a reform has emerged from a practical viewpoint, short of any connection with the Norwegian Climate Case. On the other side, what the j’accuse seems to imply is that courts cannot adjudicate climate policy matters: in fact, climate policy inevitably stirs value judgments that courts are not traditionally placed to express.

It is a fallacy to believe that court adjudication does not imply value judgments. Courts are not rubber-stampers, nor mere spectators of what politics decide. Judging in the courts entails making decisions about values: courts are trusted with securing judicial protection, in commercial as in climate and other matters. Importantly, they do so through balancing tests among competing values. In the fine pondering of what the law entails, democracy is guaranteed when power (e.g., the judiciary) stops power (e.g., the political branches), based on law, rather than when power goes unchecked, following Montesquieu’s words.

If rebuttals of Americanization uncover the mistaken idea of democracy that we still hold, as if it were the supremacy of the political branches over court and society, we should welcome this debate. However, if climate defenders are vaguely criticized for americanizing courts of law, be it in Norway or in some other countries swept by the wind of climate litigation, this rebuttal risks increasing partisanship in courts and society. It would appear as one of the conspiracy theories thrown to one’s adversaries to avoid substantiating one’s arguments in a democracy.

To surmount the fear of confrontation, of proving one’s argument in the democratic marketplace of ideas, it is worth recalling one fact. The Norwegian Climate Case, as an increasing number of climate cases, concerns rights. As the Dutch courts in the Climate Classic Urgenda construed fundamental rights encased in the European Convention on Human Rights in a somewhat unprecedented way, such interpretation was deemed by Former President of the European Court of Human Rights (ECtHR), Linos-Alexandre Sicilianos, to signify that the language of rights is a shared language at a time of climate change. As for other types of proceedings, courts cannot shirk their responsibility merely because their decision may have significant political overtones. The result is open, but environmental NGOs shall have access to adjudication as any individual or entity.

As a final thought, it comes as a truism that the purpose of democracy cannot be democracy: that would be redundant. Rather, in Josef Brodsky’s words, “[t]he purpose of democracy is its enlightenment.” In this all-hands-on-deck moment, in the United States and in Norway, an enlightened democracy would confront the truth of the times we are living, rather than divide between Norway’s legal culture and americanization, between Americans and lesser Americans.

Literature

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Fauchald, Ole Kristian: «Klimarettssaken og «amerikanisering» av norske domstoler». I: Lov og Rett, vol. 57, nr. 3, ss. 158–169, 2018.

Graver, Hans Petter: «Judging for Utopia: Climate Change and Judicial Action». I: European Review of Private law, vol. 28, nr. 4, ss. 885–907, 2020.

Sunde, Jørn Øyrehagen; Colombo, Esmeralda: «Derfor må klimasaka behandlast av Høgsterett». Bergens Tidende 2020 (30. januar 2020)