Rights-Based Climate Litigation and Climate Justice - A Study of Three European Cases

Constitutional and human rights arguments have been successful before several domestic courts across Europe. From Germany to Belgium to the Netherlands, several courts have found that governments have rights-based obligations to take more ambitious action in cutting greenhouse gas emissions. These cases have rightly been hailed as major developments in the regional and global fight against climate change. This paper analyses several of these successful climate mitigation decisions against the framework of climate justice. In Part One we set out our analytical framework. The starting point is that climate mitigation, like the effects of climate change itself, is distributional in nature. Various policies – such as regulations, taxes, and land use decisions – distribute different burdens and benefits across different groups. A climate justice approach asks whether these distributive effects are equitable, or whether they reinforce existing inequalities. In particular, climate justice operates across three dimensions: international (justice between states); intergenerational (justice between generations); and intragenerational (justice within states and generations). For rights-based approaches to be effective in practice, they must take account of all three climate justice dimensions. In Part Two, we offer a close reading of several key rights-based mitigation decisions to evaluate how judges have accounted for climate justice. Our discussion includes the cases of Urgenda v. The Netherlands, Klimaatzaak v. Belgium and Neuebauer v. Germany. While approaches to climate justice differ between different courts and cases, generalized conclusions can be made on all three dimensions. First, several courts have expressly foregrounded the issue of intergenerational justice, drawing on the uneven temporal burdens of climate mitigation as a basis for fashioning rights-based obligations. Secondly, several courts have implicitly acknowledged the importance of international climate justice by drawing principles of international climate law and framing climate mitigation as a differentiated obligation on all states. However, we argue that courts have often failed to account for the intragenerational dimensions of climate justice. In imposing mitigation obligations on states, courts have rarely discussed how those obligations might be fairly distributed across communities. In Part Three, we urge that greater attention be paid to this intragenerational dimension. A rights-based approach requires that states be held to account not only for overall mitigation efforts, but also for how those efforts affect vulnerable communities. A three-dimensional climate justice framework would enhance the rights-based foundations of climate litigation.