I. What is the Climate Science and Law for Judges Curriculum?
The Climate Science and Law for Judges Curriculum is a first-of-its-kind resource, designed to provide judges and the judiciary with reliable, up-to-date information as of year-end 2022 about the legal and scientific issues in the climate litigation of today and tomorrow. The curriculum offers an array of materials, including foundational white papers, explanatory videos, slides and slide decks, to aid better understanding of climate science and how it is likely to interact with the law. The content is drawn from authoritative scientific reports and milestone climate change cases, with the aim of helping judges prepare for a growing array of climate cases. While the material is designed with judges top of mind, we think it will be useful for other audiences as well.
Climate change is driving a groundswell of litigation in a broad range of legal categories, and climate science is rapidly expanding and evolving. When there are such significant shifts in litigation trends, judges typically prepare by identifying changes in management and resources they may need—and by seeking education on new issues. Judges also play a critical gatekeeping role in evaluating the reliability of scientific evidence, and thus understanding the fundamentals of climate science is becoming an essential aspect of their job. Despite climate litigation’s high stakes, ours is the first sustained effort to provide judicial education on climate change science, impacts, and the law.
The curriculum is not intended to influence the outcome of any particular case. Rather, to help judges understand how climate science is applied to the law, the modules introduce key cases, litigation trends, and thorny aspects of cases involving scientific evidence. Nor is the curriculum attempting to survey all climate litigation, but rather to familiarize judges with the kinds of cases they might see. It is intended to help them to manage the often-complex cases and to rule on issues involving mainstream and emerging science. The course will also illuminate commonalities and differences in concepts, terminology, and approaches between science and the law.
The curriculum was conceived and created by the Climate Judiciary Project, or CJP, as an extension of the Environmental Law Institute’s (ELI’s) long-standing judicial education efforts. Since 1969, ELI has played a pivotal role in shaping the fields of environmental law, policy, and management, domestically and abroad. Today, in its sixth decade, ELI is an internationally recognized, non-partisan publishing, research, and education center that works to strengthen environmental protection by improving law and governance worldwide. ELI’s experience as a leader in independent research and education made it uniquely suited for CJP.
The curriculum contents and the program overall have benefited from the wisdom and insights of the many judges, scientists, and legal experts we have engaged with over the course of this project. From the first pilot sessions conducted with the Federal Judicial Center and the American Association for the Advancement of Science to engagements with the National Academies of Sciences’ Committee on Science, Technology, and Law, as well as numerous collaborations with the National Judicial College, we have gained invaluable knowledge from the judges participating in our programs.
II. How Was the Curriculum Developed?
To identify the appropriate topics, structure, and approach, CJP convened an Advisory Curriculum Committee comprised of scientists, lawyers, and judges. Members included Jonathan Adler, Ann Carlson, Kristie Ebi, Chris Field, Judge Jeremy Fogel, Inez Fung, Michael Gerrard, Geoffrey Heal, Barry Hill, Michael Oppenheimer, Stephen Pacala, Justice Ronald Robie, Judge Michael Simon, and Judge David S. Tatel. The Committee provided invaluable input that helped to shape, refine, and strengthen the curriculum’s methodology and content.
Individual modules were authored by leading scientific and legal experts in their respective disciplines, and were edited in collaboration with the Climate Judiciary Project team for uniformity and consistency across the curriculum. Figures, graphics, and boxes are included throughout the curriculum to define key terms, explain important concepts, and highlight noteworthy case studies.
To enhance accuracy and provide an opportunity for additional experts to weigh in, each module underwent peer review usually by three reviewers. A diversity of perspectives was sought out in the peer review process, and reviewers were drawn from a mix of scientific, legal, and judicial backgrounds. Reviewers, like authors, were selected for their subject matter expertise, and are among the most respected in their field. Input from judges was critical because it helped to build an accessible, useful, and meaningful curriculum. Reviews were conducted anonymously to maximize candid and honest feedback.
III. What Topics Are Covered in the Curriculum?
The Climate Science and Law for Judges Curriculum covers a range of topics relevant for judges and judiciaries that are seeking to prepare for the growing number of climate cases.
At completion of the course, participants will be familiar with key concepts in climate science, scientific approaches and methods, and trends in litigation related to climate change. They will be better equipped to handle scientific information, manage complex science-related cases, and know where to look for resources to provide needed support on these issues.
The starting point for the curriculum is climate science.
Climate Judiciary Project Founder Paul Hanle’s and Senior Research Scholar and Research Director at the Stanford Woods Institute for the Environment Michael Mastrandrea’s How Climate Science Works module sets the stage for the entire curriculum, drawing from the history of climate science and explaining how scientists know what they know. The module reviews the methods by which climate science arrives at conclusions, including the gathering of evidence and construction of mathematical models. It discusses key differences between procedures in science and the law, and shows how climate science is built on long-established scientific disciplines, continuously improving our understanding of the climate system through applying them. It then explains how several kinds of misconceptions persist, a phenomenon not exclusive to the science of climate, and finally, it considers how climate scientists reach consensus views through scientific institutions.
Building on this foundation, University of California-Berkeley professor Inez Fung lays out the specifics in What Is Causing Climate Change? This module explains why levels of greenhouse gases in the atmosphere are related to global temperatures, and how climate scientists have used this relationship to project future temperatures. It discusses observational and modeling data and explores the human-caused component of warming. It also describes some of the measures being taken at the local, state, federal, and international levels to help mitigate climate change.
University of Miami professor Katharine Mach takes us to the front lines in The Impacts of Climate Change, explaining the conceptual framework of risk and introducing the main consequences of increased planetary warming and the causal connections between emissions, changes in the climate, and impacts. Evidence shows that the warming climate is already affecting people and nature around the globe. The module further outlines the major categories of climate impacts and risks, including both impacts that have already occurred and future risks.
Climate impacts are not uniformly felt, rather some areas and populations are experiencing more severe climate impacts than others. The Climate Justice module, authored by a team of researchers from Boston University School of Public Health led by Amruta Nori-Sarma and Jonathan Levy, summarizes the state of the evidence on climate disparities, primarily in the United States, drawing on specific examples of climate-related exposures including extreme heat, storms, drought, flooding, and wildfires. Case studies of events and communities illustrate the environmental justice issues posed by climate change, and the populations who are most consistently vulnerable to extreme exposures across climate hazards.
Those impacts also have significant costs, economic and otherwise, today and into the future. Wesleyan professor Gary Yohe walks readers through the Risks and Costs of Climate Change to obtain a fuller understanding of ways to deal with risk and the scope and scale of the costs these risks bring. He presents approaches and tools for thinking about how best to understand climate risk in the short and long term, including the concept of iterative risk management. The module further speaks to the underlying economic actions that reduce the likelihoods of climate-driven impacts, either by reducing the emission of greenhouse gases (climate mitigation) or by anticipating and reducing their associated damages (climate adaptation).
Causation is a central question climate science and many climate cases. What causes the climate to warm? What caused a certain impact, or how did climate change contribute to the magnitude of a given event? And which party or parties caused it? Attribution science seeks to answer these questions, and scientists are developing and refining methodologies to answer them. In Drawing the Causal Chain: The Detection and Attribution of Climate Change, Lawrence Berkeley National Laboratory senior scientist Michael Wehner describes the study of human-induced climate changes and their attribution to various causal factors. This rigorous body of scientific literature has provided evidence that human activities, principally the burning of fossil fuels for energy, have changed the climate. This module discusses the human influence on long-term trends in the climate system, as well as the human influence on specific extreme weather events and their impacts.
What about the solutions to climate change? Governments at all levels are pursuing laws and policies aimed at reducing greenhouse gas emissions and finding ways to adapt to current and future impacts. Private entities are similarly looking to reduce their climate footprints. In Solving the Climate Change Problem, the Climate Judiciary Project Team reports on the findings of the National Academies of Sciences Consensus Report on Accelerating Decarbonization in the United States and legislative developments such as the 2022 federal Inflation Reduction Act. This module covers energy services, provision of zero emissions or very-low emissions electricity, reducing greenhouse gases other than carbon dioxide, employing natural climate solutions, and negative emissions technologies, while also discussing the social dimensions of these solutions.
The second part of the curriculum focuses on legal topics, with an emphasis on how climate science is arising and is likely to arise in certain issues and disputes.
The Overview of Climate Litigation module, authored by ELI’s Sandra Nichols Thiam and Jarryd Page, provides a survey of the field to acquaint readers with the major issues involved in climate cases and to introduce landmark decisions in the United States and internationally. The focus is on what is happening in the U.S. and how climate science comes up in federal and state cases. The module describes the trends in the types of cases, litigants, and arguments; and outlines the varieties of claims, defenses, and remedies frequently presented in climate litigation. It further summarizes when and how the science of climate change enters the courtroom, including what resources judges are likely to encounter, and what kind of scientific evidence may come before judges.
Other modules are devoted to specific legal topics. Applying Attribution: Impacts of Climate Attribution Science on Tort Litigation, by Yale Law professor Douglas Kysar and Isabella Soparkar (Yale Law ’23), is a legal counterpart to the Drawing the Causal Chain module and also focuses on attribution science. Here, the authors investigate tort claims arising under state law in the U.S., looking at how the various types of attribution science—source, impact, and event attribution—are likely to intersect with climate-related tort claims. Distinguishing these different types of attribution will benefit judges as the number of climate lawsuits in the United States continues to grow. The module also probes the issue of tort law’s norm-articulating function, noting that problems associated with climate change are driven in substantial part by an absence of shared norms of responsibility.
Government decision-making, which regularly results in litigation, has been intersecting with climate science more frequently. Columbia University’ Sabin Center for Climate Change Law fellow Jessica Wentz, in Government Action and Climate Science, examines how climate science informs judicial review of government regulations and administrative decisions. The module explains how courts can use scientific data to evaluate legal obligations related to pollution control, environmental impact assessment, permitting, land use decisions, natural resource management, and endangered species protection. Throughout, the module highlights relevant areas such as the Clean Air Act, the National Environmental Policy Act, and public lands issues.
Many climate cases involve Fundamental Rights, a module by ELI Visiting Scholar Barry Hill and Jarryd Page that focuses on the rights implicated by climate change, specifically as related to issues of environmental justice and climate justice. The module also details trends and legal issues judges may expect to see in their courtrooms, such as the Environmental Rights Amendments (ERAs) of state constitutions—which are likely to become a common avenue for climate change litigation as more states incorporate these provisions into their constitutions. Other legal approaches are also explored, including the public trust doctrine, public nuisance claims, and environmental justice and climate justice laws, all of which are employed in fundamental rights-related climate change litigation.
Aside from substantive issues involved in climate cases, the procedural aspects can be similarly complex. USC Law professor Robin Kundis Craig unpacks this topic in Procedural Techniques Available for Climate Change Litigation. This module introduces specialized procedural techniques that have been used in climate cases. While many of these could be helpful in a variety of cases, this module will be most useful for judges hearing climate change-related tort litigation. Topics include case management strategies such as class action, multidistrict litigation, alternative dispute resolution, creative settlement, tiered discovery, admissibility hearings, amicus briefs, and more.
Judicial Remedies for Climate Disruption: A Preliminary Analysis, by law professors John Dernbach and Pat Parenteau, rounds out the curriculum. It focuses on climate change cases that seek science-based remedies specifically related to climate mitigation (i.e., actions to reduce greenhouse gas emissions or draw down atmospheric carbon), and climate-change adaptation (i.e., actions to reduce the negative impacts of climate disruption on human and natural communities). A wide variety of remedies are explored, including (1) injunctive relief, (2) writ of mandamus, (3) declaratory relief, (4) remand, (5) vacatur, (6) damages, (7) civil penalties, (8) accounting, and (9) award of costs and attorney fees. The focus is on U.S. cases, both federal and state, with some references to key decisions rendered in other countries for comparative purposes.
IV. How Is the Curriculum Meant to Be Used?
The curriculum is designed to be flexible. While the thirteen modules comprise a coherent course that can be worked through in sequence, you can likewise read them in any order, and each stands alone as self-explanatory. Cross references make it easy for the reader to jump between modules when relevant.
Some judges (or course instructors) may elect to take a comprehensive approach and avail themselves of all thirteen modules in sequence. Others may be interested in a topic here and a topic there. Both approaches work. We encourage you to explore the curriculum and welcome your feedback on this content, as well as on future topics and directions you want to learn more about.
