In recent years, there has been a significant rise in the judicialization of climate action, with over 2,300 climate-related lawsuits filed since 1990, more than two-thirds of which were initiated after 2015. Human rights arguments have been particularly effective in persuading courts to mandate more ambitious government actions to reduce greenhouse gas emissions. However, legal scholars have yet to fully assess the distributional consequences of rights-based judicial decisions, often assuming that the increasing use of rights language guarantees the integration of climate justice considerations. Meanwhile, the extensive literature on the articulation of social and ecological action has largely overlooked the judicial dimension of climate governance. As a result, the climate justice and climate litigation nexus remain vastly under-studied. I show that judicial authorities generally rest on scientific findings from IPCC reports and political consensus from COP decisions when distributing climate responsibilities. This results from the reluctance of judges to incorporate equity and justice considerations, viewing them as too politically divisive. This minimalist approach reflects the fragile democratic legitimacy of courts. The deference of judges to the scientific consensus serves to depoliticize judicial decisions to prevent a backlash against the judicialization of climate action. Consequently, a tension arises between climate justice approaches, which emphasize the political and social nature of ecological issues, and climate litigation strategies, which must rely on the “neutrality” of climate science to make their legal claims appear more consensual. Using case studies of recent and ongoing climate litigations, I show that when opting for legal mobilization, climate movements must navigate the ambivalence of the law: while it can be a powerful weapon, it is also a depoliticizing machine.
Petel et al. (Mon,) studied this question.