Climate Justice in Courtrooms: A Normative Inquiry into Reasoning in Climate Litigation

Abstract

Climate litigation cases have grown rapidly in number and influence. While framed legally, climate litigation appeals to the idea of climate justice, understood as involving a set of independent moral standards to be met in the face of climate change. Yet, legal argumentation relies only on intuitive accounts of climate justice, while philosophical debates rarely assess how climate justice standards could be integrated into legal reasoning. This paper bridges this gap by asking what kind of legal argument can best satisfy minimum normative requirements of climate justice for mitigation, while remaining tenable within established legal structures. We begin by evaluating an argument present in influential climate litigation cases such as Urgenda and Neubauer, the two-thresholds legal argument. This argument affirms that going below certain levels of mitigation action constitutes a breach of the state's duty to protect human rights and that countries should thus increase their mitigation efforts to avoid human rights violations. However, we argue that this argument is flawed and thus different alternatives should be sought. After considering a human-rights based argument, we conclude that a principles-oriented argument satisfies better minimum requirements for climate justice. We provide some examples of legal principles that could help this argument find a legal foothold.