Applied Climate Justice and Functional Climate Litigation: Overlapping Circles

Abstract

AbstractThe definition of ‘climate justice’ leads to many uncertainties in terms of its precise meaning and pragmatic application. As the legal, political and sociological literature stresses, there are different notions and concepts that nurture semantic issues. At the beginning of the 2000s, few studies had analysed climate justice in theoretical terms. To date, despite the extensive scholarly debate on climate justice and litigation, only in several cases is there a sort of epistemological crossover between these two areas, namely ethical-moral and political-legal. In reference to litigation, hundreds of specialised environmental courts and tribunals have been established on a global level, and legislators all over the world have passed substantial and procedural laws and regulations. Differently, in reference to the activities that impact on anthropogenic climate change there is a no organic body of norms (i.e., a legal code), nor devoted branches of the judiciaries. Cases dealing with climate change are rapidly and globally increasing, since the 2019 leading case Urgenda Foundation v. the State of the Netherlands, more than one hundred climate cases have been filed. Such a trend also proves the role of rights-based litigation in order to force greater national and sub-national government action. This “wave” of climate-cases has to do with numerous legal issues deriving from the peculiarities of each legal system, regardless of whether they fall under civil law, common law or mixed legal traditions. Courts have to act within the already established mechanisms of their own legal systems, thus the need to trace back the sources of the legal obligations and the specific interpretative pattern for climate-related rights and duties. The chapter combines theoretical and empirical grounds, investigating current definitions and trends in reference to climate justice and litigation, emphasising the need for going “through the looking glass” for really spotting cases that satisfy the instances of climate justice. It firstly introduces the debates and contemporary theoretical positions on distributive justice, to further expose current trends in climate litigation, paying specific attention to issues regarding justiciability of climate claims, the locus standi, and the limits deriving from the separation of powers.