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The 2022 US Supreme Court case West Virginia v Environmental Protection Authority (EPA) has raised serious questions in relation to the extent to which a court can kerb executive power. In that case, the US Supreme Court majority of six judges propounded a novel ‘major questions’ test which effectively prevents the executive arm of government from making subsidiary legislation in the form of rules and regulations that address ‘major questions’ that would only be appropriate for the legislative arm of government (i.e. in the US, Congress) to address. More particularly, in this case, the US Supreme Court majority, after applying its ‘major questions’ test, found that the EPA, although charged under enabling legislation with a broad mandate to reduce emissions, lacked authority to make rules which required ‘generation shifting’ by emitters to reduce emissions by changing from one type of power generation to another (e.g. coal to renewables) on the basis that this was a ‘major question’ that Congress had reserved only to itself to address. The dissenting US Supreme Court minority of three judges said this test was not reflective of long established statutory interpretation principles, and was effectively a ‘get-out-of-text free card’ which the majority had devised to deploy whenever the objects of an Act were at odds with the majority’s conservative ideological views (in this case climate change scepticism). This Chapter analyses the decision in West Virginia v EPA and the ‘major questions’ test developed by the majority and its effects on executive power, in particular in the area of combating climate change. Given the US Supreme Court is the highest appeal court in the US, potentially it could impose its will to block any legislative attempt to confer power on the executive to combat climate change, no matter how explicit those powers are, simply by interpreting such powers away—especially considering the fact that there are no constitutional constraints given that the US Constitution is all but silent on the environment. This Chapter also examines if such judicial interference could similarly frustrate executive action in combatting climate change in Australia and India given their constitutions’ different treatment of the environment to the US and cautiously concludes that while there are no constitutional guarantees in those jurisdictions against such judicial interference, it would be significantly more difficult for courts in those jurisdictions to deploy ‘get-out-of-text-free-cards’ in the way the US Supreme Court majority has.
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Dobbs v Jackson Women’s Health Organisation No. 19-1392, 597 US ___ (2022).
Roe v. Wade, 410 U.S. 113 (1973).
West Virginia v EPA No. 20-1530, 597 US ___ (2022).
Commonwealth of Australia Constitution Act 1900 (Imp) (‘the Australian Constitution’) Chapter 1 (Parliament), Chapter 2 (the Executive), and Chapter 3 (the Judiciary). The Constitution of India Part V ‘The Union’ (Chapter I—Union Executive, Chapter II—Union Parliament and Chapter IV—Union Judiciary).
Supra note 3, at 3–11 (Dissenting Judgment).
Supra note 3, at 2–3 (Dissenting judgment).
Ibid, at 15.
Ibid, at 5.
Ibid, at 28.
Merriam Webster’s online dictionary define the principle of Occam’s Razor or Ockham’s Razor (attributed to Franciscan Friar William of Ockham 1287- 1347) as ‘A scientific and philosophical rule that entities should not be multiplied unnecessarily which is interpreted as requiring that the simplest of competing theories be preferred to the more complex or that explanations of unknown phenomena be sought first in terms of known quantities’ https://www.merriam-webster.com/dictionary/Occam%27s%20razor.
Michael Waldman, ‘Originalism Run Amok at the Supreme Court’ Brennan Center for Justice 28 June 2022 accessed at https://www.brennancenter.org/our-work/analysis-opinion/originalism-run-amok-supreme-court.
Supra note 3, at 28–30 (Dissenting judgment).
Ibid, at 12 (Gorsuch concurring judgment).
Ibid, at 32–33 (Dissenting judgment).
Ibid at 1–3 (Dissenting judgment).
US Constitution Article 1 Section 8.
Constitution of India Article 47 ‘The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about the prohibition of consumption except for medicinal purposes of intoxicating drinks and drugs which are injurious to health’.
Chaudhary HYPERLINK "SPS:refid::bib1" .
Article 48 Part IV provides: A ‘protection and improvement of environment and safeguarding of forests and wild life. The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country’.
Article 51A(g) Part IV-A provides: ‘It shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers, and wildlife and to have compassion for living creatures’.
Ibid, at 592.
Article 37 Part IV provides: ‘The provisions contained in [Part IV] shall not be enforceable by any court, but the principles therein laid down are nonetheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
AIR 1987 SC 1109 cited at Ibid.
Subhash Kumar v State of Uttar Pradesh 1991 (1) SCC 598 (pollution of Bakaro River water by sludge discharged from washeries of Tata Iron and Steel Co Ltd), which was an approach endorsed by numerous decisions thereafter cited at Ibid, at 595.
Indian Council for Enviro-Legal Action v Union of India (1996) 3 SCC 212 adopting the OECD’s 1972 recommendation of pollution allocation and later laid down as Rio Declaration principle 16. Ibid, at 596.
Vellore Citizens Welfare Forum v The Union of India (1996) 5 SCC 647. The principle of sustainable development was first acknowledged in the Stockholm Declaration of 1972 and the precautionary principle was laid down as principle 15 in the Rio Declaration as ‘In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. Ibid.
M. P. Mehta v Kamal Nath (1997) 1 SCC 388, (1999) 1 SCC 702 which Chaudray explains is a doctrine that ‘postulates that the public has a right to expect that certain lands and natural areas will retain their natural characteristics.’ Ibid, at 597.
Conservative US Supreme Court Judge Clarence Thomas has recently opined that all substantive rights, not just reproductive rights, that have been read into the 14th Amendment of the US Constitution in US Supreme Court case law such as the right to contraception, right to engage in private sexual acts, the right to same sex marriage should be reconsidered by the court as, in his view, the 14th Amendment is based on process respecting substantive rights found elsewhere in the Constitution and not in the 14th Amendment itself. See Supra note 1, at 3 (Thomas J, concurring judgment).
Australian Constitution s41.
Confirmed by a line of High Court authorities commencing with Nationwide News v Wills (1992) 177 CLR 1 and Australian Capital Television v Commonwealth (1992) 177 CLR 106.
Commonwealth v Tasmania (1983) 158 CLR 1.
Australian Constitution s51(xxix) ‘The Parliament shall, subject to this Constitution, have the power to make laws for the peace, order, and good government of the Commonwealth with respect to: External affairs’.
In Australia, for instance, extrinsic material is generally only resorted to determine the meaning of a statutory provision to confirm the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act, or to determine the meaning of the provision when it is ambiguous or obscure or the application of the ordinary meaning of the provision would otherwise lead to a meaning that is manifestly absurd or unreasonable—see Interpretation Act 1903 (Cth) s15AB.
go back to reference Nividita Chaudhary ‘Constitutional Jurisprudence and Environmental Justice: A Study of India and Australia’ Chapter 30 of Professor Aditya Tomer, Dr Vaishali Arora, Dr Joshua (Eds) Comparative Law Facets, Nuances and Intricacies (Thomson Reuters, 2022), p. 587–591. Nividita Chaudhary ‘Constitutional Jurisprudence and Environmental Justice: A Study of India and Australia’ Chapter 30 of Professor Aditya Tomer, Dr Vaishali Arora, Dr Joshua (Eds) Comparative Law Facets, Nuances and Intricacies (Thomson Reuters, 2022), p. 587–591.
- Do Australian and Indian Courts Have ‘Get-Out-of-Text Free Cards’ Like the US Supreme Court in Order to Limit Environmental Executive Power?
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