130
Tutela561 writs, found in Latin American countries and the Writ of Kalikasan562 in
the Philippines. These special writs have been consistently used by their respective
courts to protect the environment.563 Regional courts have also promoted remedies
by issuing Advisory Opinions to help clarify the duties and rights relative to the
environment and transboundary harm.564
In the climate change context, “courts have moved beyond their primary function
of resolving disputes between private individuals and are now being used by
public interest litigants as vehicles for achieving social change.”565 The Commission
encourages all courts to embrace their power to influence and inspire government
action. However, caution must be exercised to avoid “overly aggressive judicial
review [that] has the potential to engender administrative ossification—agency
paralysis—among other phenomena.”566 Thus, without favoring any particular party
or going beyond their authority, courts should strive to inform, determine, explain
and uphold, through their decisions, the rights and obligations of parties concerning
particular climate laws, policies and issues. In dismissing claims, courts should clarify
the factual and legal bases that were found wanting or insufficient to provide guidance
not only to the parties but also to future actions. It should be emphasized that even
when courts do not rule in favor of the claimants, they still contribute to meaningful
climate response through their elucidation of the law and the rights and obligations
of the parties. Judicial contribution to the development of the law and jurisprudence
on various climate issues is indispensable to the success of the global climate action.
In the determination of claims and liabilities, courts may take judicial notice of the
findings of NHRIs or other similar bodies.
561
1991 Colom. Const. (Revised 2015).
562
Rules of Procedure for Environmental Cases.
563
Corte Constitutional de Colombia [2016] T-622 of 2016; Supreme Court of the Philippines [2019]
Abogado et. al v. Department of Environment and Natural Resources.
564
Inter-American Court of Human Rights [2017] Advisory Opinion Concerning the Interpretation of
Article 1(1), 4(1) and 5(1) of the American Convention on Human Rights.
565
Brian J. Preston, Characteristics of Successful Environmental Courts and Tribunals, 26 J. Environ.
Law 365, 387-8 (2014).
566
Markell & Ruhl 2012, supra note 558 (citing Thomas O. McGarity, Some Thoughts on “Deossifying”
the Rulemaking Process, 41 DUKE L. J. 1385, 1386-87 (1992); Mark Seidenfeld, Why Agencies
Act: A Reassessment of the Ossification Critique of Judicial Review, 70 Ohio St. L. J. 251, 254
(2009); & Jason Webb Yackee & Susan Webb Yackee, Testing the Ossification Thesis: An Empirical
Examination of Federal Regulatory Volume and Speed, 1950–1990, 80 Geo. Wash. L. Rev. 1414,
1414 (2012)).
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