Court as a Policy Facilitator: Comparing Republic of KOREA and US in Dealing with Climate Change CRISIS

Abstract

The purpose of this comparative study is to examine how courts in US and Korea may take on the role of a pol-icy facilitator that encourages policy entrepreneurs to open the policy window for addressing climate change. As the result of analyzing MA v. EPA decided in 2007, a typical example of the judicial activism in US, it was found that the US Court widened the scope of standing to sue and ordered passive administrators and legislators to open the policy window. The US state governments and environmental advocate groups used litigation as a strategic tool to nudge the federal government to take actions in the issue area of climate change. However, climate change policy in Korea was mostly initiated and led by the president and its administration under global governance with little judicial roles. In 2006, the president promulgated the national vision on a low carbon green growth. By launching the Framework Act on Low Carbon, Green Growth in 2010, the government integrated climate change and global warming policy, new renewable energy and sustainable development policy, and others, which were used to be carried out separately under the individual laws of various Ministries. The less active judicial roles are often found in the field of high specialty such as clean air affairs, the closest area to climate change. The judiciary has been deferring to administrative actions by applying the strict criteria of standing to sue and thus by limiting any chance of reviewing them by itself. The Courts, regardless of types, left an ample space for administrative discretion, and it has never been found that petition’s argument is accepted against administrators’ will, whether anti-environmental or not. In particular, the Constitutional Court tends to lean toward judicial deference more than does the Supreme Court. It has rejected all cases related to clear air at the preliminary step of standing to petition even before entering into judgement on the merits. Generally speaking, it is highly difficult for civic groups and others to file a lawsuit due to their strict procedural requirements in Korea. The judiciary tends to apply the very strict criteria of standing to whether a plaintiff is qual-ified or not, and it seriously limits any judicial chance of reviewing administrative actions by itself. It is imperative that related lawsuits be allowed more widely in terms of standing to sue. This will promote more active civic partic-ipation in the decision-making process of climate change policy as in US cases.