The Role of the Judiciary in Keeping the Legislature and Executive Accountable

The Hon Justice Brian J Preston

Tackling the existential crisis of climate change requires ambitious action by governments to reduce greenhouse gas (GHG) emissions from human activity. The goal is to achieve net zero emissions – a balance between anthropogenic emissions by sources and removals by sinks. Emissions reductions need to be deep and rapid to limit global warming to the agreed temperature target of well below 2°C above pre-industrial levels1 by the time target of the second half of this century (2050).2 The government of a polity needs to take the lead in setting and implementing the strategic, policy and legal frameworks needed for effective climate action. The legislature needs to enact laws to require climate action and the executive needs to execute these laws and implement policies for climate action. Through an analysis of domestic and international cases, this article will discuss the important role the judiciary plays in holding the legislature and the executive accountable for discharging these responsibilities.

1. The legislature’s accountability

In the context of climate change, the legislature can breach the law in at least two ways: by failing to enact delegated legislation in breach of a legal duty to do so, or by enacting legislation that is unconstitutional or otherwise legally invalid.

1.1 Failing to enact delegated legislation in breach of the law

An example of the first type of error is the South African case, Trustees for the Time Being of Groundwork Trust and Another v Minister of Environmental Affairs and Others.3 This case concerned the ‘Highveld Priority Area’ in South Africa, a region with high levels of air pollution from, among other sources, the mining and combustion of fossil fuels. In 2012, an air quality management plan (the Highveld Plan) was prepared by the Minister of Environmental Affairs for the area with the ‘sole objective… to reduce ambient air pollution to a level that complies with the National Standards’.4 The applicants, two non government environmental organisations (NGOs), challenged the unsafe levels of ambient air pollution in the Highveld Priority Area in two ways: first, they argued that the poor air quality was in violation of s 24(a) of the Constitution of South Africa, which provides that ‘everyone has the right to an environment not harmful to their health or wellbeing’;5 and second, they argued that the Minister of Environmental Affairs ‘is obliged to create regulations to implement and enforce the Highveld Plan’.6 The High Court found in favour of the applicants and held that the levels of air pollution were in breach of the environmental constitutional right,7 and that the Minister had a legal duty to set regulations to reduce the pollution under the Highveld Plan.8 The court directed the Minister to prescribe such regulations within 12 months of the decision and set out a number of issues for the Minister to consider when doing so.9 The Minister sought leave to appeal to the Supreme Court of Appeal, which was granted by the High Court in March 2023.10 While the High Court found that ‘there is no reasonable prospect that another court would come to a different conclusion’, it held that leave to appeal should still be granted on the basis of the ‘novelty and importance of the constitutional issues… and the broader public interest.’11

The legislature may also fail to make delegated legislation (regulations) because of a misunderstanding or misdirection as to power. A case illustrating this error is Massachusetts v Environmental Protection Agency.12 Massachusetts petitioned the US Environmental Protection Agency (EPA) to issue a rule (delegated legislation) under the Clean Air Act 1963 to regulate GHG emissions, including carbon dioxide, from new motor vehicles. The EPA refused the petition, saying it did not have the authority to regulate vehicle emissions, as they were not an ‘air pollutant’ under s 302(g) of the Clean Air Act. The US Supreme Court held that the definition of ‘air pollutant’ under the Clean Air Act was ‘sweeping’ and ‘capacious’ and unambiguously encompassed GHG emissions.13 The Court held that the EPA did have an obligation under s 202(a)(1) of the Clean Air Act to regulate GHG emissions from new motor vehicles, if such emissions would reasonably contribute to climate change.14 The court remanded the proceedings for the EPA to determine the rulemaking petition consistent with the court’s decision.15

Rocco Fazzari

1.2 Enacting legislation that is unconstitutional or otherwise legally invalid

The legislature may make legislation that is unconstitutional or otherwise legally invalid. An example of unconstitutional legislation is Neubauer et al v Germany.16 Youth claimants challenged the constitutionality of Germany’s Climate Change Act, for setting inadequate GHG emission reduction targets, which did not extend beyond 2030. The German Constitutional Court found that the Climate Change Act placed an unreasonable burden on future generations, in violation of the right to fundamental freedoms of future generations enshrined in the German Constitution.17 To this extent, the court held that the emission targets in the Climate Change Act were unconstitutional.18 The court ordered the federal government to remake the emissions reduction targets in the Climate Change Act, including targets for beyond 2031, by the end of 2022.19 In compliance with this decision, the German legislature amended the Climate Change Act to include a 64% reduction of GHG emissions by 2030, an 88% reduction by 2040, and achieving climate neutrality by 2045.20

An example of legally invalid delegated legislation is West Virginia v Environmental Protection Agency.21 The US EPA had promulgated the Clean Power Plan rule (a form of delegated legislation), which sought to reduce carbon dioxide emissions from existing coal-fired and natural gas-fired power plants by adopting generation-shifting measures. The EPA relied on s 111(d) of the Clean Air Act as authorisation to make the rule.22 Under this section, the EPA can determine the ‘best system of emission reduction’ appropriate for an existing source. The majority of the United States Supreme Court ruled that s 111(d) did not empower the EPA to introduce a scheme requiring this generation-shifting approach.23 The majority held it was not sufficient that there is a ‘merely plausible textural basis for agency action’, because such action raised matters of vast political and economic significance. In such circumstances, there must be ‘clear congressional authorisation’.24 The minority, dissenting, found that Congress had authorised the EPA under s 111(d) to pick the ‘best system of emissions reduction’, recognising that this would change over time, and that the EPA had complied with that authority in enacting the Clean Power Plan and generation-shifting approach.25

2. The executive’s accountability

The executive government may fail to adequately fulfil its climate change responsibilities in at least four ways: failing to adopt a climate policy, implementing a climate policy in breach of the law, failing to adequately implement a climate policy or failing to take adequate climate action. Recently, there has also been an emergence of climate litigation claiming a breach of a duty of care in climate policymaking or a breach of a duty to take climate action, however, to date courts have been less persuaded to hold the executive accountable by enforcing a tortious duty of care.26

2.1 Failing to adopt climate policy

Legislation may require the executive government to adopt policies to mitigate or adapt to climate change. In Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority,27 a climate action group sought an order in the nature of mandamus to compel the NSW Environment Protection Authority (EPA) to perform its statutory duty to develop environmental quality objectives, guidelines and policies to ensure the protection of the environment from climate change. The Land and Environment Court of NSW held that the statutory duty in s 9(1)(a) of the Protection of the Environment Administration Act 1991 (NSW) to develop environmental quality objectives, guidelines and policies to ensure environment protection includes a duty to develop instruments to ensure the protection of the environment from climate change.28 The EPA had failed to fulfil its duty to develop instruments of the kind described and was therefore ordered by the court to do so.29 In compliance with the court’s decision, the EPA released its Climate Change Policy and Action Plan 2023–26 in January 2023.30

2.2 Implementing a climate policy in breach of law

The executive might adopt a climate policy or take climate action, such as in setting and implementing the level and rate of GHG emissions reductions, that breaches the law. For example, in Urgenda Foundation v The Netherlands,31 Urgenda Foundation and 900 Dutch citizens challenged the sufficiency of the Dutch Government’s climate change policy and action, arguing that the government’s failure to require deeper and more rapid reductions in GHG emissions breached its duty of care under the Dutch Civil Code and its obligations under the European Convention on Human Rights (EHCR). The Hague District Court found that the insufficient emissions reductions breached the government’s duty of care and ordered the government to reduce GHG emissions by 25% below 1990 levels by 2020.32 This decision was upheld on appeal by The Hague Court of Appeal and the Supreme Court of the Netherlands, on the ground that the insufficient emissions reductions also infringed the plaintiffs’ human rights under the EHCR.33

2.3 Failing to implement climate policy

The executive government might adopt climate policies according to law but fail to adequately implement them, thereby breaching the law. In Leghari v Federation of Pakistan,34 the Pakistan government had adopted policies for adaptation to climate change, but the government had not implemented them. Asghar Leghari submitted that this inaction violated his fundamental rights, read with constitutional principles and international environmental principles. The Lahore High Court held that the executive government’s inaction in implementing the climate policies had breached Leghari’s fundamental rights.35 The court ordered the establishment of an ad hoc Climate Change Commission to provide advice as to how to implement effectively the government’s climate policies.36

2.4 Failing to take adequate climate action

The executive government may fail to take adequate climate action in breach of the law. In Notre Affaire à Tous et al v France,37 four NGOs brought administrative proceedings claiming that the French Government’s failure to implement proper measures to effectively address climate change violated legal duties to act. The plaintiffs claimed that the government has legal duties to act on climate change stemming from the French Charter for the Environment, the ECHR and the general principle of law providing the right of every person to live in a preserved climate system. The Administrative Court of Paris held that France could be held responsible for failing to meet its own climate and carbon budget goals under European Union law and national law.38 The court ordered the state to take immediate and concrete actions to comply with its commitments on cutting carbon emissions and repair the damage caused by its inaction by 31 December 2022.39


The legislature and executive bear the prime responsibility for taking effective action to address the climate crisis. The judiciary plays an important role in holding the legislature and executive accountable for fulfilling their responsibilities in accordance with law. This article has highlighted but a few cases where courts around the world have ensured legislature and executive accountability. BN


1 Conference of the Parties, Adoption of the Paris Agreement, 21st sess, UN Doc FCCC/CP/2015/L.9/Rev.1, (12 December 2015) art 2(1)(a).

2 ibid art 4(1).

3 Trustees for the Time Being of Groundwork Trust and Another v Minister of Environmental Affairs and Others [2022] ZAGPPHC 2 (High Court of South Africa).

4 ibid [19].

5 ibid [23.1].

6 ibid [23.2].

7 ibid [241.1].

8 ibid [241.2].

9 ibid [241.4]-[241.5].

10 The Minister of Environmental Affairs v the Trustees for the Time Being of the Groundwork Trust & Ors, Case No. 39724/2019 [2023] ZAGPPHC 155 (23 March 2023) (High Court of South Africa).

11 ibid [12]-[13].

12 Massachusetts v Environmental Protection Agency 549 US 497 (2007) (Supreme Court of the United States).

13 ibid 26, 29-30.

14 ibid 25, 30.

15 ibid 32.

16 Neubauer et al v Germany (2021) 1 BvR 2656/18, 1 BvR 78/20, 1 BvR 96/20, 1 BvR 288/20 (Constitutional Court of Germany) (Neubauer) and see Petra Minnerop, ‘The ‘Advance Interference-Like Effect’ of Climate Targets: Fundamental Rights, Intergenerational Equity and the German Federal Constitutional Court’ (2022) 34(1) Journal of Environmental Law 135.

17 Neubauer (n 16) [142].

18 ibid [266].

19 ibid [259].

20 Federal Climate Change Act (2021 Amendment) (7 July 2021).

21 West Virginia v Environmental Protection Agency 597 US (2022) (Supreme Court of the United States) (West Virginia v EPA).

22 Clean Air Act, 42 U.S.C. §7401 (1970).

23 West Virginia v EPA (n 21) 31.

24 ibid 19.

25 ibid (Kagan J dissenting) 27. See further Elizabeth Fisher, ‘West Virginia v EPA: Thwarting Robust Legal Reasoning’, Oxford Human Rights Hub, (Blog Post, July 11 2022)

26 See, for example, Sharma v Minister for the Environment (2021) 391 ALR 1; (2021) 248 LGERA 330; [2021] FCA 560 (Federal Court of Australia). Overturned on appeal: Minister for the Environment v Sharma (No 2) (2022) 401 ALR 108; [2022] FCAFC 65 (Full Federal Court of Australia).

27 Bushfire Survivors for Climate Action Incorporated v Environment Protection Authority (2021) 250 LGERA 1 (Land and Environment Court of NSW).

28 ibid [16], [69].

29 ibid [149].

30 ‘EPA Climate Change Policy’, NSW EPA (Online Report, January 2023) and ‘EPA Climate Change Action Plan 2023–26’, NSW EPA (Online Report, January 2023)

31 Urgenda Foundation v the State of the Netherlands (ECLI:NL:RBDHA:2015:7145) (The Hague District Court).

32 ibid [4.83]-[4.86], [5.1]

33 The State of the Netherlands v Urgenda Foundation (ECLI:NL:GHDHA:2018:2610) (The Hague Court of Appeal) [67], [71]-[76]; The State of the Netherlands v Urgenda Foundation (ECLI:NL:HR:2019:2007) (Supreme Court of the Netherlands) [5.2.1]-[5.5.3], [9].

34 Asghar Leghari v Federation of Pakistan (WP No 25501/2015) (Lahore High Court).

35 ibid [11]-[12].

36 ibid [13].

37 Notre Affaire à Tous et al v France, No 1904967, 1904968, 1904972, 1904976/4-1, 14 October 2021, (Administrative Court of Paris).

38 ibid [1].

39 ibid [13].

The Hon Justice Brian J Preston

Land & Environment Court of NSW