Publication Date
4-13-2025
Abstract
Across a range of cases, fossil fuel companies, government actors, and some judges have conceded that climate change is an exceptional phenomenon, only to argue that its exceptional nature is a reason to keep climate change out of court. These parties and judges thus seek to avoid the adjudication of climate cases on the merits, even when the neutral application of existing law would provide for jurisdiction in these cases. We term this phenomenon “climate jurisdiction exceptionalism.”
This Article provides a comprehensive account of climate jurisdiction exceptionalism, focusing on two main threads: Article III standing and state court jurisdiction. First, parties (and some courts) make various arguments about why federal courts should deny standing to plaintiffs in cases related to climate change. These arguments tend to track three themes: that climate change is too general, too uncertain, and too political an issue to support jurisdiction. Second, defendants offer a range of novel and boundary-pushing arguments about federal jurisdiction to oust state courts of jurisdiction over climate cases with the ultimate goal of getting federal courts to dismiss.
This Article then offers the normative case against climate jurisdiction exceptionalism as practiced in the United States as well as in some foreign courts. We show that arguments for climate jurisdiction exceptionalism run counter to settled notions of access to justice, federalism, and the separation of powers—and they do so without providing any justification for such exceptional treatment. We further show that exceptional doctrine cannot be limited to any small, discernible category of cases but instead is likely to spill over into the law of jurisdiction more broadly. We also suggest that a particularly pernicious version of climate jurisdiction exceptionalism exists when judges and parties deny that they are being exceptional. This hidden exceptionalism has the same problems as more public exceptionalism while also undermining accountability and risking further harm to the rule of law.
Recommended Citation
Zachary D. Clopton and David A. Dana,
Climate Exceptionalism in Court,
119
Nw. U. L. Rev.
1545
(2025).
https://scholarlycommons.law.northwestern.edu/nulr/vol119/iss6/3
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