Climate Change and the Judge as Water Trustee

• Date: 01 March 2018

3-2018 NEWS & ANALYSIS 48 ELR 10235

Something extraordinary is happening. rough the

carbon emissions from burning fossil fuel and defor-

estation, humans have disrupted earth’s climate sys-

tem, leading to global warming. e challenge we now face

is to stop these emissions and limit the extent of warming

and the associated loss, damage, and harm to people and

ecosystems. Failure to mitigate these emissions will lead to

irreversible impacts and a planet so damaged it will be bio-

logically impoverished, provide less freshwater, grow less

agriculture, produce more diseases, and kill unprecedented

millions of people with storms, heat waves, coastal inunda-

tion, ooding, and res. is is as we head toward a world

population projected to grow from 7.4 billion to 11.2 bil-

lion by 2100.1

e catastrophic future that the Paris Agreement2 is

intended to save us from will arrive by the time the earth

warms two degrees above its pre-industrial temperature—a

ceiling we are already rapidly approaching.3 A more pro-

nounced catastrophe distinguished by a world of 3+ degrees

of global warming by 2100 is now the more likely future

for humanity based on present levels of carbon emissions.4

Humanity’s quest to achieve orderly mitigation of and

adaptation to climate change is dependent upon the just

application of the environmental rule of law—the legal

framework that protects and sustains the environment on

which life depends. A 3+ degree world of collapsing eco-

systems will arrive within the century, unless the environ-

1. D  E  S A, U N,

W P P: T 2015 R (2015) (ESA/P/

WP.241), available at https://esa.un.org/unpd/wpp/publications/les/key_

ndings_wpp_2015.pdf.

2. Paris Agreement, U.N. Doc. FCCC/CP/2015/L.9/Rev.1 (Dec. 12, 2015),

available at http://unfccc.int/les/essential_background/convention/appli-

cation/pdf/english_paris_agreement.pdf.

3. Eric Holthaus,        -

stone, S (Mar. 12, 2016), http://www.slate.com/blogs/future_tense/

2016/03/01/february_2016_s_shocking_global_warming_temperature_re-

cord.html; see also National Aeronautics and Space Administration, 

Temperature, https://climate.nasa.gov/vital-signs/global-temperature/ (last

updated Jan. 12, 2018).

4. U N E P (UNEP), T E

G R 2017: A UN E S R (2017), avail-

able at http://wedocs.unep.org/handle/20.500.11822/22070.

mental rule of law is enforced. is Comment posits that

the present framework positions earth’s judges as guard-

ians of the public trust—sworn to protect earth’s water

resources from the severe damage that will be caused by

heating the earth system two to three degrees above pre-

industrial levels.

Environmental courts and tribunals are proving to

be critical to the world judiciary’s just application of the

environmental rule of law to issues of climate change. To

further equip the judges who must apply the environ-

mental rule of law, Brazil Supreme Court Justice Antonio

Benjamin, in collaboration with the World Commission

on Environmental Law, the United Nations Environment

Programme (UNEP), and the Organization of American

States, has led the establishment of the Global Judicial

Institute on the Environment (GJIE). ese institutions

fortify the world judiciary as it performs its public trust

duty to protect humanity a nd the ecological integrity of

earth through responsible, resilient application of the envi-

ronmental rule of law. rough the empowering frame-

work of environmental courts and the GJIE, judges will

be trained to apply the environmental rule of law in our

Anthropocene era of climate change.

I. Humanity Notices Climate Change:

The Big Picture

e need for judicial institutions to address climate change

is apparent. Humanity is demanding solutions. Large-scale

demonstrations have become commonplace. e largest

single gathering in history to protest climate change was

the People’s Climate March on September 21, 2014, when

an estimated 311,000 participants marched at the United

Nations (U.N.) in New York City.5 At the same time,

marches were conducted throughout the world, including

Amsterdam, Berlin, London, New Delhi, and Rio. During

5. Lisa W. Foderaro, Taking a Call for Climate Change to the Streets, N.Y. T

(Sept. 21, 2014), https://www.nytimes.com/2014/09/22/nyregion/new-

york-city-climate-change-march.html.

Climate Change and the

Judge as Water Trustee

by Michael D. Wilson

Michael D. Wilson is an Associate Justice in the Supreme Court of Hawaii.

Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.