In his comprehensive report, Climate change, the courts, and the constitution, Joshua Kimblin surveys how the legal mechanisms of environmental and climate accountability have operated over the last three years and considers future directions.
Across three chapters, the core finding of the report is that executive autonomy in environmental decision-making is increasing. Conversely, the influence of institutions which provide accountability functions is diminishing. Judges have conspicuously avoided curtailing executive autonomy in deciding how to respond to climate change generally, or how the executive decides to assess scientific evidence. In Parliament, the Environment Act 2021 has sidelined law as an accountability mechanism, while the Office of Environmental Protection is weaker than the institutions which it replaced. Finally, the Johnson administration advanced a model of accountability which is narrowly drawn, reliant upon electoral scrutiny, critical of judicial intervention, and suspicious of climate-concerned public law litigants. We are on a trajectory towards a strongly political-constitutionalist model of environmental and climate accountability, in which scrutiny is dependent upon public interventions by advocacy groups and regulatory bodies, whose mandate is contested by the politicians subject to their supervision.
Beyond this diagnosis, the report concludes with three concerns for the future. The first relates to an emerging strand of political opinion which allies the ‘formalist’ vision of the rule of law with an anti-regulatory, small-state conservatism. Second, the ever-increasing complexity of climate change threatens the practicability of prospective legal rules. Finally, the fields of environmental law, climate-related government policy, and public-interest public law are developing with alarming speed.
Climate change, the courts, and the constitution records the status quo, legally and constitutionally, at the beginning of the United Kingdom’s fight against climate change. It is hoped that the report, rather than providing the end to a discussion, will attract attention and promote debate. As climate change accelerates, so too must our understanding of its impacts upon the state.
This publication presents the personal views of the author and not those of The Constitution Society, which publishes it as a contribution to debate on this important subject.