Litigating for Future Generations... and for the Just Transition? The Unequal Integration of Climate Justice Dimensions by the Courts

Recent years have witnessed a rapid judicialization of climate action with over 2300 climate-related lawsuits filed since 1990, with more than two thirds of those filed since 2015. In particular, human rights arguments have been successful before several domestic courts across Europe in persuading judges to impose obligations on governments to take more ambitious action to cut greenhouse gas emissions. Yet, the relationship between climate justice and climate litigation remains under-studied. While there exists significant debate as to the efficacy of climate litigation in terms of reducing carbon emissions or improving adaptation, there is little focus on the distributive fairness of climate judicial decisions. This paper analyses three prominent cases (Urgenda v. The Netherlands, Klimaatzaak v. Belgium and Neubauer v. Germany) against a climate justice framework. First, we set out our analytical framework. A climate justice approach acknowledges that climate mitigation, like the effects of climate change itself, is distributional in nature. In particular, climate justice highlights the unequal distribution of burdens and benefits across three dimensions: international (justice between states); intergenerational (justice between generations); and intragenerational (justice between social groups along socio-economic, racial and gender determinants). Second, we offer a close reading of three key rights-based mitigation decisions to evaluate how judges have accounted for the various dimensions of climate justice. Analysing the various aspects of climate justice in those three decisions, we identify a common reluctance to engage in intragenerational justice concerns. While the decisions insist on taking into account the interests of future generations, they resist in setting criteria for a socially just transition. We argue that this reluctance has important implication for lawyers, courts, and social movements, depending on the extent to which legal mobilisation strategies rely on the role of judiciaries as guardians of climate justice.