Speaking in the Language of Law or Science? Epistemic Hard Cases and Reasoning Dilemmas for Courts in Adjudicating Climate Change

Sulyok, Katalin (2024) Speaking in the Language of Law or Science? Epistemic Hard Cases and Reasoning Dilemmas for Courts in Adjudicating Climate Change. NEW ZEALAND JOURNAL OF ENVIRONMENTAL LAW, 28. pp. 21-47.

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Abstract

Climate science appears to be an essential ingredient in every climate judgment. However, the exact ways in which climate science could (or should) be integrated into the judicial inquiry are far from being straightforward or uncontested. Climate models and scientific calculations feed a wealth of information for judges, which is manifestly relevant to appraising the factual aspects of the dispute at hand; however, they do not automatically answer the legal questions put before the courts. Furthermore, courts may reconstruct the scientific complexities of climate change for the purposes of their legal inquiry in various ways, depending on the legal context, underlying law, and not infrequently, on their preference and strategic purposes. Sometimes, the legal issue is therefore tackled by courts through solely using legal argumentation, and judicial findings are justified without engaging with the merits of scientific evidence. In such cases, courts speak in the language of law instead of basing their findings on scientific rationality. This article argues that, even though crafting such a purely legalistic assessment may be legitimate in certain circumstances, there are hard limits to which courts may sideline climate science in climate change litigation judgments. This article argues that domestic and international courts should approach climate science in their inquiry in a way that does not undermine scientific realities. Finally, this article explores the ways in which judicial reasoning can respect this imperative.

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