Multilayered Non-Majoritarianism: European Courts and National Climate Action

Litigants ask regional and national courts in Europe to rule on the structural failures of states to adopt adequate climate measures. ‘Adequate’ is understood to mean staying within these states’ ‘fair share’ of the global carbon budget scientifically linked to a likelihood of staying below 1.5 °C. This litigation expresses dissensus about the majority’s failure to take adequate climate action (climate dissensus). Europe is characterized by its multilayered legal and judicial landscape, where laws and case law of national and regional origin interlock and strengthen each other. The European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) are empowered to act as institutional counterweights to national politics within their respective legal frameworks of EU law and the European Convention of Human Rights (ECHR). The ECtHR did so in the ground-breaking general emission reduction case of KlimaSeniorinnen. The ECJ, by contrast, rejected Carvalho. This article is a contribution to a Special Section that critically analyses the role of non-majoritarian instruments and institutions with respect to three challenges that shape contemporary democracies in Europe: socio-economic inequality and discrimination, growing authoritarianism, and the pressing climate crisis. In relation to the third challenge, this article traces how dissensus about inadequate majoritarian climate action is voiced through litigation before European and national courts. It demonstrates how the interactions within the multilayered legal landscape push and empower courts to act as non-majoritarian counterweights to the directly or indirectly elected domestic institutions, including the ECJ vis-à-vis the other EU institutions.