Biased judges in climate lawsuits threaten integrity of the court system

The American legal system depends on judges who are impartial, serving as unbiased arbiters with no predisposition to any litigant. This impartiality is the bedrock of a just court system that not only ensures the fair application of the law but gives the public confidence in our justice system .

Unfortunately, judges in Hawaii and Rhode Island who are overseeing municipal and state climate litigation have failed in their mission to be neutral and impartial referees. Allowing their bias to continue influencing the cases before they’ve been heard does not reflect the spirit of our justice system and will likely erode the public’s trust.

These aren’t run-of-the-mill cases, but landmark lawsuits with far-reaching implications that attempt to make certain energy producers liable for globally occurring climate impacts. So far, the flimsy legal foundation of some of these cases, which have been filed from coast to coast, has been rejected by federal court judges. After all, it’s impossible to connect a particular climate impact to a specific group of companies.

With a biased judge, however, this trend could change.

This is the case in Rhode Island, where the judge overseeing the state’s climate lawsuit against energy producers is showing signs of clear bias . In a recent jurisdictional discovery order, a Rhode Island Superior Court judge cited news articles about last year’s United Nations climate conference and cited remarks about liability by climate activists and former Vice President Al Gore. The judge even wrongly compared Rhode Island’s experience with climate change with African countries such as the Seychelles and Kenya, both of which are seeking climate-related damages at the U.N. The insertion by the judge of these external sources, none of which were part of the case record, raises serious questions about his court’s impartiality.

The specter of judicial bias in Hawaii is arguably even greater. Remarkably, the chief justice of the Hawaii Supreme Court, who is slated to review climate-related claims in Honolulu, has actively led legal education panel discussions that ardently support climate litigation. Recently disclosed public recordsrevealed that the chief justice in question worked with the D.C.-based Environmental Law Institute and its Climate Judiciary Project to lead at least four seminars on climate litigation. These include an April 4 course entitled “Rising Seas and Litigation: What Judges Need to Know About Warming-Driven Sea Level Rise” and a June 20 event entitled “Environment, Energy and Natural Resource Disputes: The Use of Special Masters in Resolving Complex Litigation.”

Similarly, a Hawaii Supreme Court associate justice also participated in a 2020 Climate Judiciary Project seminar on climate litigation and has demonstrated there is no daylight between his personal and legal opinions. In a March rulingthat Hawaii citizens have a right to a “life-sustaining climate system,” the associate justice wrote a concurring opinion noting we are facing a “climate emergency” that puts the “lives of our children and future generations … at stake.”

If their personal zeal for climate litigation weren’t enough, the groups associated with these events have clear ties to climate lawsuits. In 2020, the Hewlett Foundation contributed $500,000 to ELI to support “a body of law supporting climate action” and the MacArthur Foundation has given ELI close to $4 million. Investigative reporting has unearthed that both the MacArthur and Hewlett foundations have contributed more than $4 million to entities funding the climate lawsuits.

The bias being revealed in both Rhode Island and Hawaii raise serious concerns about the potential erosion of judicial impartiality and objectivity. The judges in these cases are supposed to exercise restraint and maintain strict impartiality. They aren’t supposed to conduct their own fact-finding inquiries, as the Superior Court judge has done in the Rhode Island climate case. They aren’t supposed to oversee the kind of cases they have encouraged in seminars funded by climate lawsuit activists.

When the blindfold of Lady Justice is lifted and the scales of justice tipped, as they appear to have done in Rhode Island and Hawaii, the public should rightfully be concerned. Climate change lawsuits are distractions from the kind of practical solutions and sound policymaking that will make a difference in our future. Lawsuits could gain traction in the courts if biased judges are allowed to oversee such cases.

Situations unfolding in Rhode Island and Hawaii threaten the public’s confidence in impartial justice and should be remedied before they do real damage.

J.W. Verret is an associate professor at George Mason University Law School.