Alf W. Brandt’s article articulates many of these challenges, noting that not only are complex scientific issues present and often in dispute, but they also may concern conflicts between governmental and private interests. It will be necessary for judges handling these cases to have some familiarity with the terminology, basic scientific principles, and applicable regulatory structures. Rule 2.9(C) of the ABA Model Code of Judicial Conduct specifically states that a “judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.” There is a careful balance required to gain enough background education to be able to perform the adjudicative function well while carefully not “prejudging” the science that may be at issue in the particular case. There are likely differing practices among judges in these cases as to how much “disclosure” of outside education, including experts in the science at issue, should be made in the specific environmental case. Judges facing this quandary would do well to attend only those programs that include a range of presenters and are geared specifically to judges who will need to assess related information in a court setting. Programs sponsored solely by private corporate entities or groups representing one side of the dispute should be avoided.
There are also very likely underlying political pressures and concerns that advocates may seek to bring into the courtroom. Managing these emotional issues and at times tragic circumstances in a way that focuses the parties on the legal issues and defined scope of the judicial process will help to enhance confidence in the impartiality of the final judicial determination.
One option to help define and delineate the judicial role in these complex cases is to use a court-appointed neutral, as illustrated by the Flint water litigation and Deborah Greenspan’s significant role. The ability to delegate some responsibilities in cases where there are significant discovery disputes, multiple parties, and motivation to settle claims can both be efficient and help preserve the role of the judge.
As our country continues to grapple with the effects of environmental degradation and dispute its causes, judges will be forced into the fray. The discipline of legal analysis through fundamental principles of standing, duty, harm, and compensation can provide the needed anchor. Judges will need to learn new terminology, scientific concepts, and changing expectations for our environment while maintaining the impartiality that is the constant requirement of the Code of Judicial Conduct.