Climate Change Litigation and the Role of the Judiciary

Climate change is one of the most significant challenges of our times which affects unprecedentedly all peoples and nations at various levels. State’s actions taken to fight against the threat are often considered insufficient by many. Therefore, individuals and organizations have reacted by creating a new legal phenomenon called “climate change litigation”, with the purpose to try to forcing states to engage in an effective and efficient fight against climate change. During the last years, Courts have begun to play an increasingly important role in climate change action’s development. The tendency sees national and supranational courts as the main boosters in seeking government accountability for climate policy failures that endanger the society, by proving the link between the government’s inaction and specific climate-change-related harms. After providing a methodological definition of climate change litigation, the contribution reviews the role of the Judiciary in climate change issues, discussing the notion of judicial activism in constitutional democracies. Once identified the theoretical framework, the paper analyzes the relevant case law in Europe. Starting from the domestic implementation of the Climate change litigation, the paper reviews some relevant cases brought before national courts as the Dutch Urgenda case, the German Neubauer case, the French Affaire du Siècle case, and the Italian Giudizio Universale case. Afterward, the analysis moves to the supranational level. First, it looks at the ECtHR’s contribution to the climate change litigation and the potential outcomes of its judgments, with a specific reference to the two pending cases Duarte Agostinho and others v. Portugal and Verein KlimaSeniorinnen Schweiz and Others v. Switzerland. Secondly, it refers to the CJEU’s jurisprudence, looking at the Carvalho and Others case and the EU’s possible involvement in the climate justice forum. The contribution aims to explore the ever-growing relevance of national and supranational courts in the affirmation of civil rights in the climate change litigation arena, representing a fundamental bulwark against governments’ inaction concerning one of the upcoming most significant societal changes.