Guest editorial: Courts as an arena for societal change: An appraisal in the age of “environmental democracy”; In this issue

Abstract

The impacts of environmental challenges, including climate change, are increasingly felt by individuals across the globe. Amidst the critical and, some argue, urgent nature of these challenges, and the perceived sluggishness of the executive and legislative branches of government in addressing them, citizens and civil society movements are increasingly seeking redress through judicial avenues. This trend shines a new light on fundamental questions about the role of law in society and the interplay between the political and the legal. It particularly challenges traditional notions of the judiciary's role, begging important questions: What motivates citizens to bring socially charged issues before the courts, and how do institutional frameworks influence the adjudication of such issues? What roles do governments, parliaments, courts and civil society play in these processes? What leads courts to render substantive decisions on these issues, or why do they refrain from doing so? What complexities arise when judges make decisions in such politically charged contexts? How can concerns about judicial independence and impartiality be balanced with evolving public expectations around the role of the courts? And what consequences does this shifting role have for the judiciary's self-image and its perceived legitimacy?

Environmental and climate change law presents a particularly fertile terrain to explore these questions. The concept of “environmental democracy”, as discussed by Angelika Krężel in this issue in relation to strategic climate litigation in the European Union, 1 brings to the fore interesting questions pertaining to the justification for the role of courts and their legitimacy in addressing pressing societal issues. A countermajoritarian logic has traditionally supported the role of courts from a balance of power perspective, where court action is deemed necessary to amplify the voices of minorities or the vulnerable. This perspective also views judicial intervention as a way to enforce the rule of law by preventing asymmetries of power in society - be they economic or political - from having a detrimental impact on the way legal rules are interpreted and applied, as Giorgio Cataldo's essay examining key Italian constitutional court decisions in light of the European Court of Justice's case law illustrates. Courts in that sense constitute a democratic forum where the voice of the (silenced) majority is heard. 2 But courts can also have a direct impact on the definition of democracy itself as a space for contestation. This is exemplified by Paolo Mazzotti's call for a liberal interpretation of the climate defence of necessity in criminal courts, amidst a growing transnational movement of climate activists embracing civil disobedience. 3

Through the open texture of law, courts have played a key role in its interpretation and adaptation to evolving societal needs. Henri de Waele has painted a picture of the European Court of Justice's achievements thus far, comparing the experiences in the green domain with experiences in other fields. However, are there or should there be limits to courts' creative power? This is a question tackled head-on by Douwe de Lange through a comparative analysis of the Dutch and US judicial competence doctrines, 4 and by Asmaa Khadim, 5 who maps out the factors enabling courts to function as an arena for societal change, taking Argentina, where citizens' mobilisation through courts has been especially high, as a case study.

One of the key factors contributing to courts as an arena for societal change is access to justice, both procedurally and substantively. This raises very interesting questions regarding our Western, atomistic, conception of the individual, which translates into difficulties in addressing in courts collective interests or the public good that constitutes the environment. If procedural limitations to access to justice are a hurdle for strategic climate litigation in the multi-level European Union as advocated by Angelika Krężel, 6 various parameters, institutional, procedural and substantive, have to be considered in the framework of a rights-based approach to litigants' choice of forum, as illustrated by Armelle Gouritin in comparatively assessing different fora in the Americas. 7 In reality, litigants may diverge in how they conceive of and strive towards societal change. Hence, courts become very different arenas in which to pursue societal change, in which actors elect cautious or daring strategies, depending on the characteristics of the legal systems and traditions in which they are embedded, their vision and their objectives. Carlotta Garofalo, in her contribution, thus emphasises the crucial role played by the dialectic between structure and agency in molding legal strategies in European climate litigation. 8 But the democratisation of environmental governance through courts is intimately linked to science democratisation and often depends on judicial approaches to science, which in turn may impact the procedural legitimacy of climate rulings. This is one of the key insights Juliana de Augustinis draws from a comparison between Dutch and German courts' decisions in the field. 9

Beyond these formal obstacles, an individual-rights-based approach also shows its limits when addressing global phenomena which cause harms not only to individuals but also to society. Is there access to justice for society as a whole, and how do we define it? It is from this angle that alternative concepts actionable before courts have been developed, such as “intergenerational equity”. Its promises are explored by Josiah Quising in his article through a study of the spread of this legal concept across various jurisdictions. 10 But ultimately, one could wonder whether the anthropomorphism which characterises the Western paradigm of legal personality is not obfuscating our perception of one of the main victims of our decisions: nature. Flipping the perspective, we conclude this issue with a contribution by Tolulope Ogboru, who explores the conditions of possibility for granting rights to nature. 11

Comparative methodology and multi-disciplinarity characterise this special issue. In line with Mauro Cappelletti's conception of a law in context approach, 12 we believe that only through collective reflection and by moving beyond our Eurocentric perspectives can we uncover suitable legal answers to socioenvironmental challenges, thereby shedding new light on the role of courts as an arena for societal change. In the spirit of the principle of intergenerational equity, we have prioritised amplifying the voices of emerging scholars. This endeavour was facilitated by a conference titled ‘Courts as an Arena for Societal Change’ held at Leiden University in 2022. This conference, organised by the Research Group on Institutions for Conflict Resolution, a joint collaboration between Radboud University Nijmegen, Utrecht University and Leiden University and funded by the Ministry of Education, Culture and Science under the Dutch Sector Plan for Law, presented a unique opportunity to bring together researchers and practitioners from around the world to discuss the evolving role of courts in addressing difficult and contentious social and political issues, the environment and climate change being one of the areas of critical public importance addressed on this occasion. We hope that this special issue not only engages and challenges our readers, but also inspires conversations and action towards enduring environmental stewardship and a more sustainable future. We heartily thank the participants in the conference, the contributors for their in-depth and diligent work, the Editorial Board of the European Law Journal for their support, and our readers for joining us in this vital conversation.

EDITORIAL

Guest editorial: Courts as an arena for societal change: An appraisal in the age of “environmental democracy”

By Asmaa Khadim, Margaretha Wewerinke-Singh, Jannemieke Ouwerkerk and Miranda Boone, Leiden University and University of Amsterdam

ARTICLES

Access to justice and strategic climate litigation in the EU: Curing the incurable?

By Angelika Krężel, PhD Candidate, University of Wrocław

Access to justice in environmental matters is a key component of EU environmental policy and one of the main pillars of environmental democracy, based on the concept that land and natural resource decisions adequately and equitably address citizens' interests. Access to justice in the EU is to be assured via both the CJEU and national courts through direct and indirect action procedures. In line with this, the main argument developed throughout this analysis is that the CJEU differentiates the revision standard when interpreting the obligations of EU institutions and those of Member States. It is concluded that this kind of interpretation maintains the limitations to access to justice for individuals in the EU (the ‘incurable’), even when faced with the attempt to overcome this restrictive interpretation in the specific case of strategic climate litigation (‘curing the incurable’). The specific case of strategic climate litigation is used as an example to illustrate the negative consequences of limitations to access to justice for individuals in the EU. In conclusion, it is assessed whether there are any other ‘real cures’ for this deadlocked situation and what the rationale is behind these double standards.

Does the European Court of Justice induce societal change? The record so far—with a green future in mind

By Henri de Waele, Professor of International and European Law, Radboud University Nijmegen

Over the seven decades of its existence, the European Court of Justice (ECJ) has performed well in its main function as a conflict-solving institution. From the existing literature, it becomes less clear, however, to what extent it has served as an effective agent for societal change, i.e., effectuated more generic developments, stirring up a broader momentum in the modification of ideas, habits or preferences of different groups and communities. Obtaining clarity on this issue seems imperative in the current day and age, considering the gargantuan challenges of accelerating climate change and environmental degradation facing the European Union: for, if the ECJ generally manages to ‘deliver’, at least some further progress could realistically be expected on this front also. The present article conducts an examination reviewing the experiences in the green domain from a comparative perspective, seeking to discern possible patterns and draw common inferences. Thus, it aims to paint a picture of the Court's achievements as a societal actor, exposing how and when judges prove successful not just in impacting the law in the books but also in recalibrating the conduct or opinions of real people in actual practice. Those insights may well inform future progress in different fields—the ecological as much as anywhere.

Courts as an arena for socioenvironmental change: Lessons from the Argentine courts

By Asmaa Khadim, Postdoctoral Researcher in Institutions for Conflict Resolution, Leiden University

Trends in the Argentine courts indicate a judicial preference towards flexibility in light of possibly serious environmental consequences, particularly in relation to mining. Through a liberal interpretation of constitutional provisions where collective environmental rights are threatened, the courts have expanded access to justice, leading some to view the Argentine judiciary as ‘interventionist’ or ‘political’. However, judicial decisions emphasise compliance with constitutional mandates without necessarily encroaching upon policy-making realms. The constitutionalisation of environmental rights has had a strong influence on the judiciary's approach, but in combination with other factors, particularly civic mobilisation, institutional changes and evolving public ethos on environmental protection. Proactive judicial engagement with the full extent of its powers to ensure that policy-makers meet their constitutionally mandated obligations can compel policy-makers to address sustainability issues and rethink strategies. This positioning of the judiciary as a catalyst for more effective environmental governance offers useful insights for European courts.

With great judicial power comes great constitutional responsibility: What climate litigation tells us about the judicial competence doctrines in the United States and the Netherlands

By Douwe de Lange, Legal Research Master student, Utrecht University

In recent years, the United States and the Netherlands have been on opposing sides of the spectrum regarding climate litigation. Put differently, in the context of climate change, the Dutch courts have been a significant arena of societal change, while the US courts have not. In a way, this difference seems strange, because the US judiciary has the power of constitutional review, while the Dutch judiciary does not. This article, using recent climate litigation, extensively compares both doctrines of judicial competence regarding political questions. As a comparative framework, this article uses three judicial phases, namely the institutional phase, the substantial phase and the remedial phase. This comparative analysis shows that the Dutch doctrine of judicial competence is focused on the substantial and remedial phases, which has allowed it more freedom in reviewing climate litigation. Overall, this leads to a relatively holistic approach to judicial competence, but it could benefit from a clearer framework. The US doctrine of judicial competence, on the other hand, is focused on a strict institutional phase, mainly because its great judicial power of constitutional review has led to the great constitutional responsibility of the Political Question Doctrine (PQD). This leads to the conclusion that the US doctrine of judicial competence is generally less holistic than its Dutch counterpart.

Courts as an arena for societal change? The Italian Constitutional Court's self-restraint facing the legislator's uncertain discretion in seabed mining: A concrete counter-example

By Giorgio Cataldo, postdoctoral research fellow in Constitutional Law, University of Salento

This essay explores the difficult balance between social and productive interests in the Italian field of seabed mining. In past years, it was above all the regions, bearers of local communities' social demands, that claimed greater attention to sustainability, while State law almost always privileged productivity. The Constitutional Court always took a self-restraint attitude, typical in the macro-area of reference, which is that of Economic Relations, and basically adhered to State reasons. Given this starting point, it is not entirely certain that the European Court of Justice's 2022 ruling, which included the environmental interest alongside economic concerns regarding the topic, will bring concrete developments. The same doubts of potential impact arise from the constitutional reform that, also in 2022, officially inserted environmental protection into the Constitution. Indeed, there is a complex framework of interests involved in the sector, from which political power suffers above all. Before a balancing of interests, therefore, what is felt is the need for a more appropriate balance between powers, political and jurisdictional. This, because the reception of social demands in such an intricate field makes the effort of only the latter insufficient. The Italian case thus illustrates some of the constraints that can weigh on courts, especially constitutional, in their ability to constitute an arena for societal change.

‘Foot in the door’ or ‘door in the face’? The development of legal strategies in European climate litigation between structure and agency

By Carlotta Garofalo, Doctoral Candidate, Department of Public Law and Political Sciences, University of Graz

Following the landmark Urgenda case, European social movements and legal networks have increasingly turned to courts to compel governments to enact more ambitious mitigation policies. The rapid proliferation of Urgenda-like cases in the most diverse European jurisdictions, despite high legal barriers, makes a compelling case for investigating the motivations and goals animating European climate litigants, especially when venturing into risky litigation endeavours. While timely legal analyses of high-profile climate lawsuits abound in the literature, an emerging body of research has focused on the genesis of climate cases, their strategies and societal impacts. To contribute to this latter thread, the article investigates how legal barriers and considerations, on the one hand, and social movements' motivations and goals, on the other, have shaped a diverse range of legal strategies in high-profile climate lawsuits inspired by Urgenda in Europe. The article argues that, even when filing similar climate lawsuits, litigants may diverge in how they conceive of and strive towards social change. Hence, courts might become very different arenas for pursuing social change, in which actors elect cautious or daring strategies, depending on the legal system and tradition to which they refer, their vision and their objectives.

A rights-based approach to the choice of forum in climate displacement litigation: Lessons from the Americas

By Armelle Gouritin, researcher, Mexico National Research Council; Latin American Faculty of Social Sciences

Few studies address climate litigation and climate forced mobility together, and the link between climate litigation and internal forced climate displacement remains poorly addressed. This article aims to participate in filling this void. We focus on climate displacement litigation argued before regional human rights courts (the Inter-American Court) and national human rights protection bodies (the Mexican Commission) to determine the adequacy of each from the perspective of potential litigants. We address institutional, procedural and positive law within the context of water scarcity. We find that while institutional and procedural aspects reveal the potential of the Inter-American Court in ruling on climate displacement cases, the application of the positive obligations doctrine by the Mexican National Human Rights Commission is more disaggregated and a priori suitable to ground the course of action of potential litigants.

Judicial approaches to science and the procedural legitimacy of climate rulings: Comparative insights from the Netherlands and Germany

By Juliana de Augustinis, PhD at the Department of Public Law and Governance of Tilburg Law School, Tilburg University, the Netherlands

This article investigates the still understudied relationship between judicial approaches to science and the procedural legitimacy of rulings in cases where the plaintiffs seek a change in governments' overall climate policy. To that end, the author conducts a literature review on difficulties surrounding courts' interaction with climate science and compares judicial engagement with scientific information in two high-profile cases decided by the highest courts in adjacent countries, namely Urgenda v. The State of the Netherlands and Neubauer et al. v. Germany. The selected lawsuits yield comparative interest in aiming for changes in national climate policies and emission mitigation targets, involving the same kind of evidence (Assessment Reports by the Intergovernmental Panel on Climate Change) but resulting in partially opposing decisions. The analysis shows that climate science provided courts with relevant information about the risks of climate change and the measures required to prevent them. It also suggests that diverging approaches to scientific reports contributed to contrasting decisions regarding the review of mitigation targets. Finally, it offers insights into how engagement with the evidence might affect judgments' legitimacy from a procedural perspective.

The necessity defence in (the Swiss) climate protest cases: Democratic contestation in the age of climate activism

By Paolo Mazzotti, Research Fellow and PhD candidate, Max Planck Institute for Comparative Public Law and International Law

As the consequences of the climate crisis start to unfold ever more tangibly worldwide, climate activism is on the rise. Against this background, the transnational movement of climate activists recently started to resort increasingly often to acts of civil disobedience, because of the inertia of the political process supposed to tackle it. While prima facie unlawful, those acts thus ought not to be punished. The present article conceptualises the climate necessity defence as an instance of climate litigation, by trying to draw insights into the interpretation of the climate necessity defence from international environmental law and climate science as well as the transnational case law of the various jurisdictions in which the issue was addressed. The overarching contention is that a liberal interpretation is more in line with the current legal thinking on environmental matters than the understanding(s) adopted by the judges who sentenced the defendants. The article thus advocates for an understanding of the climate necessity defence which, tending towards accepting its applicability, broadens (rather than restricts) the space for democratic contestation on climate policy, contributing to a vibrant deliberative process.

Beyond Oposa: Courts reinforcing intergenerational equity as customary international law

By Josiah David F. Quising, Professor of Law, Far Eastern University, Philippines

In recent years, children across the globe such as Greta Thunberg and Kelsey Juliana are seen at the front line of efforts to hold governments accountable for environmental damage. In the Philippines, the case of Oposa v. Factoran gave legal standing to minors and unborn generations invoking their constitutional right to a balanced and healthful ecology. The Philippine Supreme Court based its decision on intergenerational equity—a principle stating that every generation has an obligation to protect the environment for the next. Representation of future generations in courts is not a new concept, nor is it unique to the Philippines. By examining national laws, treaties and conventions and court decisions by both domestic and international courts, this article aims to show how intergenerational equity has been widely recognised by almost all countries globally as evidence of state practice and opinio juris. This article argues that the principle of intergenerational equity is ripe for consideration as a customary international law and discusses how domestic and international courts and tribunals have been instrumental as a medium in establishing such and recommends that children and unborn generations be given legal standing as a necessary consequence.

Recognising the rights of nature: How have courts fared?

By Tolulope N. Ogboru, Professor of Environmental Law, Faculty of Law, University of Jos, Nigeria

The Rights of Nature is an evolving theory in environmental law. It advocates that natural objects be respected and allowed to exist, thrive and flourish for themselves and not for utilitarian purposes. However, attempts to apply the rights often result in litigation. The outcomes of these cases have grave implications for the impact of the Rights of Nature concept on the development of jurisprudence and environmental protection, which will further determine its acceptance or rejection by the international community. An examination of some key cases reveals some positive developments that can enhance the implementation of the concept, but it also demonstrates that there are some challenges in the approach adopted by the courts. The article concludes that the Rights of Nature can be a jurisprudential tool to enhance environmental protection only where, in addition to well-written constitutional and legislative provisions, court decisions in these cases are of practical consequence.