By The climate crisis is no longer a distant threat; it is a present reality. As the urgency of mitigating climate change intensifies, courts across Europe are increasingly becoming battlegrounds for climate action. From strategic litigation against governments to holding corporations accountable for emissions, judicial responses are shaping climate policy and influencing corporate behavior.This article examines the diverse approaches taken by European courts, highlighting key cases, exploring challenges, and evaluating the potential of judicial action in driving climate change mitigation.
The rise of climate litigation is a global phenomenon, and its trajectory in Europe has been particularly notable. With the establishment of the Paris Agreement in 2015 as the signature international accord of our times, there also came the legal and political impetus for the action on climate. Even though intergovernmental cooperation is its fundamental focus, the Paris Agreement has unintentionally influenced arguments over law in climate cases while underlining the states’ obligation for bold climate measures. In Europe, many diverse legal systems and traditions have shaped the form and tenor of judicial responses. From common law systems in the United Kingdom and Ireland to the predominantly civil law traditions throughout mainland Europe, courts have grappled with intricate scientific evidence and concerns with standing as well as with the delicate relationship between judicial action and policymaking. Indeed, within civil law systems, there are differences too. For instance, despite German courts taking a relatively strong stance on intergenerational equity, other civil law systems have been more circumspect in granting standing to future generations. Similarly, the approaches followed to establish a causal link between specific emissions and climate change-related damages differ, reflecting the evolution of climate science and principles of legal accountability.
A comparative analysis reveals a spectrum of judicial approaches throughout Europe. In Germany, the Federal Constitutional Court’s significant decision in Neubauer et al. v. Germany in 2021 mandated the government to enhance its climate legislation, thereby establishing a precedent for climate action enforced by the judiciary. The Court determined that the prevailing law inadequately safeguarded the rights of future generations, necessitating more ambitious targets for emission reductions. This judgment also had a ripple effect, influencing the climate litigation approach of other countries. In the Netherlands, the Urgenda Foundation took the government to court, and it ended in 2019 when the Supreme Court provided a judgment compelling the country’s government to reduce emissions by 25% minimum by 2020. In this case, the court pronounced that governments have a legal duty to protect their people from the effects of climate change. In France, the Affair du Siècle (Case of the Century) involved four non-governmental organizations successfully litigating against the French government for its inaction on climate matters, thereby underscoring the increasing trend of utilizing legal action to hold governments responsible for their climate obligations. The United Kingdom has similarly experienced a notable rise in climate-related litigation, with cases contesting airport expansion and governmental policies regarding investments in fossil fuels. Recent cases in the United Kingdom, such as the challenge to the proposed coal mine in Cumbria, illustrate continued involvement by the courts in complex issues under climate policy.
The legal arguments employed in these cases vary, reflecting the different legal contexts of each country. Some cases rely on human rights arguments, asserting that climate change violates the rights to life, health, and a healthy environment. Other cases rely on principles of environmental law, which emphasize the responsibility of states to preserve the environment for both current and future generations. Besides, certain people focus on administrative law to protest the legality of governmental steps that exacerbate climate change. In the 2023 case Friends of the Earth et al. v. UK Government, petitioners disputed the government’s approval of the new oil and gas exploration licenses, arguing that the decision was incompatible with the UK’s climate targets. While not every case is successful for climate activists, they enhance public awareness, build pressure on governmental bodies and corporations, and serve to help further the development of jurisprudence in climate law.
Despite the rising significance of climate litigation, courts faced many challenges. Climate cases are notoriously challenging in balancing competing interests and science. Concerns about separation of powers and judicial overreach also plague because some say courts cannot decide such matters as policy. Generally, there is still a problem regarding standing to establish standing for future generations or environmental NGOs. Implementing judicial decisions in climate cases poses a challenging task since it requires radical changes in the policies used for heavy capital investments.
However, these challenges are accompanied by significant opportunities. Judicial action may be a trigger to policy changes by ensuring governments strengthen their climate commitments and enforce meaningful mitigation measures. The courts may stand companies accountable for their role in causing climate change: force them to reduce emissions, and invest in clean technologies. Moreover, judicial decisions could shift public opinion, changing the larger discussion in society on climate issues. With a multiplicity of climate cases on the rise and novel legal arguments surfacing, the judiciary is likely to be at the very heart of the climate crisis battle. Inter-court cooperation throughout Europe could then further intensify judicial action by fine-tuning best practices and laying down consistent legal principles.
The interaction between judicial decisions and policymaking is an important component of the developing function of courts in climate governance. Although court decisions do not necessarily need to entail policy changes, they can nonetheless create political pressure and influence the conversation in the public sphere, thus affecting what is legislated or executed. A famous example is the Urgenda case in the Netherlands, forcing the Dutch government to speed up its efforts to phase out coal and invest in renewable energy sources. Similarly, the German Constitutional Court’s decision has led to the alteration of Germany’s climate laws and the renewed focus toward achieving more stringent reduction targets in relation to emissions. Such examples, thereon, convey the ability of judicial decisions to facilitate policy change.
The European Court of Human Rights (ECHR) plays a pivotal role in influencing the domain of climate litigation. Although the ECHR has not yet delivered a landmark judgment specifically concerning climate change, its body of case law on environmental protection and human rights establishes a framework for national courts to take into account. Despite its infancy, the already stipulated principles based on previous decisions in cases of air pollution and environmental degradation apply to climate change mitigation, which includes the right to a healthy environment and the duty of states to ensure prevention measures. The case of Duarte Agostinho and Others v. Portugal and 32 Other States stands pending before the ECtHR by six young Portuguese activists against governments of Europe, which may portend an important ruling on climate change by the Strasbourg Court and also influence the growth of climate litigation in Europe.
The comparative analysis reveals a dynamic and evolving landscape of judicial responses to climate change in Europe. While the specific approaches vary across countries, a common thread unites them: a growing recognition of the urgency of climate action and the potential of courts to contribute to meaningful change. As climate litigation continues to evolve, European courts have a unique opportunity to shape the future of climate governance, holding governments and corporations accountable and safeguarding the rights of present and future generations. The challenges are significant, but the potential rewards are even greater.The judicial division has a part to play in maneuvering the legal and political landscape of addressing and adjusting to climate change while remaining within its authority and supporting the principle of the rule of Law.
