Uncommon Law: Judging in the Anthropocene

Abstract

The origin story of environmental law begins with judges working valiantly to protect the environment, but ultimately, out of an apparent necessity, passing responsibility to legislators and regulators. There is truth to the story, but it ignores important aspects of the demonstrated expertise, creativity, and dynamism of common law judges. Given the trajectory of the environmental law narrative, judges today too anxiously defer to legislative and regulatory policy, and we have come to expect, sometimes champion, this shirking of environmental responsibility. But this logic of deference is unpersuasive in an age where legislators and regulators also struggle, and most often fail, to address environmental issues like climate change. This chapter urges that, instead of minimizing the role of judges, there is immense need to rediscover the possibilities of common law environmental protection. There is need to write a new origin story in which courts, legislators, and regulators carry shared responsibility. The threat of climate change demands a turn to courts for a variety of services, not least, adjudication that uncovers individual suffering and declaration of norms of right and responsibility. The judge’s role in candidly attending to these meaningful decisions can be the catalyst for much needed political action.