Questions concerning the climate and sustainability continue to stir up strong responses in society and are becoming ever more prominent on the agenda. These topics also raise important legal questions. A special blog series puts these important and wide-ranging issues in the spotlight. In this post, Jan-Baptist Lemaire sets out why the separation of powers-arguments often raised against judicial review of government action in climate cases do not hold.
The separation of powers is the elephant in the room for judicial review of government climate policy – and government policy in general. Governments’ argument is that climate policy lies within their discretionary power. Such power grants the government the space to design its policy as it wishes. Judicial interventions with this space would call into question the separation of powers.
The argument has not deterred courts from ruling against governments in climate cases. Still, the judge-legislator relationship is prevalent in public debates. Courts face difficulties in mounting a proper defense. This post argues that the entire argument is misplaced. Yet, the reason has less to do with the concept of separation of powers. Rather, the answer lies in a conceptual analysis of discretionary powers. To this end, we scrutinize four common justifications for invoking the separation of powers. I define discretionary actions as actions not mandated by a hard legal rule. The law does not prescribe one specific action one has to take. Instead, the law leaves open a range of a priori legally permissible actions.
Four Fallacies about Discretionary Powers
First, it is often said that the separation of powers precludes courts from making policy. They cannot determine what the ‘best’ decision is in a given situation. A common saying in this context is that courts can only ‘apply the law’. However, what is the law exactly in this case? But what is the law exactly in the case of a policy decision (i.e. a discretionary action)? Policy by definition entails a choice between several a priori permissible actions. Every judicial review of a government action that goes beyond the mere automatic execution of a legal rule thus constitutes policy review. As such, the separation of powers cannot meaningfully entail that courts cannot review policy decisions at all.
When there is no bright line rule dictating a specific action, government conduct can only be governed by open-ended standards. In Belgium and the Netherlands, this standard is (manifest) unreasonableness – called marginal review. Standards, however, only fully get their content after their application to a specific case: what is reasonable, depends on the circumstances of the case. Courts are not making policy merely because they give content to an open norm: in the case of standards, it is only in concreto and a posteriori that it becomes clear what the law is in the phrase ‘courts can only apply the law’.
A second reason commonly invoked is that the separation of powers mandates that ‘courts cannot take the government’s place’. But what does such a prohibition of substitution mean? First, it can signify that courts cannot substitute their own preferences about what is the best decision. In this sense, it is nothing more than restating that courts cannot make policy, as discussed above.
Unwarranted substitution can also arise when courts are confronted with a claim for reparation of damages (Dutch: schadeherstel). The question is then: can a court, after it has determined that a decision is (manifestly) unreasonable, tell the government which decision it should take instead? The answer is yes, if the court determines that every conceivable decision is manifestly unreasonable except for one. In this case, the court merely applies a marginal review of the decision, which is giving content to the standard of (manifest) unreasonableness. An action that was in abstracto and a priori legal turns out to be impermissible in concreto and a posteriori. As such, this has nothing to do with the separation of powers, but rather with the existence of a discretionary space and its review.
A third recurring justification is that separation of powers guides courts on how intensely they ought to review policy decisions. Specifically, it would mean that courts ought to show more restraint towards government decisions than towards decisions taken by a private actor. This is both questionable and misleading. Questionable because neither case law nor literature mentions that government actions are to be held to less scrutiny than private actors’ actions, for instance a decision of a corporate board of directors. Misleading because it is unclear how separation of powers provides courts with guidance to show more restraint. At most, the principle can serve as a red flag, warning courts to show more restraint if discretionary actions are involved. But this red flag is entailed by marginal review itself. Indeed, every policy review – regardless of who took the decision under review – should respect the de iure existence of a discretionary space.
The final reply is that the separation of powers constitutes the legal basis for judicial restraint. While this idea seems to have some traction, it is also the least convincing. It suffices to observe again that marginal review is not tied to government action as such, but to the existence of a de iure discretionary space. This occurs in both public and private law. Accordingly, when looking for a legal basis of marginal review, we need to look for a concept common to all areas in which policy review occurs. This quest, however, exceeds the scope of this post.
Why (not) Separation of Powers?
If separation of powers has no useful role in assessing judicial review of discretionary actions, why is this so? Legal authors often try to first capture the essence of the concept of separation of powers in order to then deductively infer specific guidelines for judges from this essence. This endeavor is, however, problematic.
First, because the concept is practical and evolutive: it is determined by how it is applied in practice, not how it is defined in theory. When we base ourselves on 250-300 years old literature to find the essence of the concept we are guilty of a historicist fallacy by conducting a modern hineininterpretierung of a concept created in a radically different time and spirit.
Second, the concept is not operational: we cannot deduce practical guidelines for judges in specific cases from an abstract theoretical definition of an essentially contested concept, without getting stuck in generalities. Rather than a micro-principle informing the actions of courts, separation of powers is a macro-principle informing the organization of our state institutions: judges need be independent, checks and balances between institutions are required, etc. A contemporary theory of the separation of powers is inductive, not deductive.
Although the societal debate concerning the legitimacy of judicial review of government policy will not fade anytime soon, this post and the book chapter on which it is based, stand as an invitation to all actors in the scientific debate to critically assess the use of separation of powers as a tool to describe the role of courts on a micro level.
Jan-Baptist Lemaire is writing a PhD on judicial review of discretionary actions (supervisor Bernard Tilleman) as PhD Fellow at FWO and affiliated to the Centre for Methodology of Law, KU Leuven. He is currently completing an LL.M. at Yale Law School in New Haven, Connecticut.
This blogpost is based on a book chapter to be published next year: J.B. Lemaire, “Een andere kijk op beleidstoetsing, duurzaamheid en de scheiding der machten” in B. Akkermans, B. Hoops and B. Verheye, Privaatrecht 2050. De weg naar ecologische duurzaamheid, Bruges, die Keure, 2022.
Jan-Baptist LEMAIRE, "Judicial review of government action and the separation of powers: please separate", Leuven Blog for Public Law, 22 October 2021, https://www.leuvenpubliclaw.com/judicial-review-of-government-action-and-the-separation-of-powers (geraadpleegd op 19 May 2022)
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