‘Foot in the Door’ or ‘Door in the Face’? The development of legal strategies in European climate litigation between structure and agency

• Published date: 01 May 2023
• Author: Carlotta Garofalo
• Date: 01 May 2023
• DOI: http://doi.org/10.1111/eulj.12494

ORIGINAL ARTICLE

‘Foot in the Door’or ‘Door in the Face’? The

development of legal strategies in European

climate litigation between structure and agency

Carlotta Garofalo

*

Abstract

Following the landmark Urgenda case, European social movements and legal networks have increas-

ingly turned to courts to compel governments to more ambitious mitigation policies. The rapid pro-

liferation of Urgenda-like cases in the most diverse European jurisdictions, makes a compelling case

to investigate the motivations and goals animating European climate litigators, especially when fac-

ing high legal barriers. While timely legal analyses of high-profile climate litigation abound in the lit-

erature, an emerging body of research has focused on the genesis of climate cases , their strategies,

and societal impacts. To contribute to this latter thread, the article investigates how legal barriers

and considerations, and social movements' motivations and goals, have shaped a diverse range of

legal strategies in high-profile climate lawsuits inspired by Urgenda in Europe. The article shows that

courts might turn into very different arenas to pursue social change, in which actors elect cautious

or daring strategies, depending on the legal system and tradition they refer to, but also their vision

and objectives.

1|INTRODUCTION: LITIGATING CLIMATE AND SOCIAL CHANGE IN

EUROPE

In a recent article, Elizabeth Fisher provocatively questioned whether, after 20 years of prolific studies on the sub-

ject, climate litigation has turned into an academic obsession or expertise.

1

Even appreciating the academic expertise

built over the years, scholars have noted that critical gaps remain in climate litigation research. Among others, Lisa

Vanhala and Joana Setzer

2

highlighted that very little is known about the genesis of climate cases, including, on the

* Doctoral Candidate, Department of Public Law and Political Sciences, University of Graz.

[Correction added on 15 May 2024, after first online publication: The article has been edited for language in this current version.]

1

E. Fisher, ‘Climate Change Litigation, Obsession and Expertise: Reflecting on the Scholarly Response to Massachusetts v. EPA: Reflecting on the Scholarly

Response’(2013) 35 Law & Policy 236.

2

J. Setzer and L. C Vanhala, ‘Climate Change Litigation: A Review of Research on Courts and Litigants in Climate Governance’(2019) 10 Wiley

Interdisciplinary Reviews: Climate Change e580.

DOI: 10.1111/eulj.12494

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

reproduction in any medium, provided the original work is properly cited.

© 2024 The Author. European Law Journal published by John Wiley & Sons Ltd.

340 Eur Law J. 2023;29:340–361.

wileyonlinelibrary.com/journal/eulj

identity of the activists and lawyers pursuing legal action, the barriers they face, their motivations and goals. For

instance, certain legal environments may hinder social movements from even having their climate case heard.

Strict standing requirements, conservative review doctrines, or the absence of climate laws might stand in the

way of activists willing to bring their demands to court. Furthermore, legal barriers and considera tions may

affect the goals pursued by litigators, and therefore, their strategy. Wheneve r judicial victory app ears unlikely

or far in the future, they may choose to pursue indirect goals, e.g., broadening the access to justice or influenc-

ing the public discourse.

3

Finally, strategic litigation goals are by nature dynamic, as social movements' motiva-

tion or perspective may change during the proceeding, depending on its intermediate outcomes and public

reception, and on possible legal developments.

4

In Europe, the resort to litigation to influence climate politics, is a rather recent phenomenon, which can be

attributed to a number of concurrent factors, including the adoption of the Paris Agreement, the emergence of the

youth climate movement, and the influence exercised by the landmark Urgenda case.

Van Asselt, among others, noted that the Paris Agreement's legal architecture demands civil society to step up in

the enforcement of the climate regime.

5

The absence of top-down obligations and the emphasis on mutual trust and

transparency to achieve the Treaty's objectives,

6

confers non-governmental organizations a crucial role in monitoring

climate action and holding states accountable for their voluntary contributions (NDCs).

As a matter of fact, while already in use before the Paris Agreement, climate litigation has grown exponentially

during the last decade.

7

Only in Europe, except for two cases, all rights-based climate cases were filed after the

adoption of the Paris Agreement and mostly refer to it.

Moreover, most of the climate cases filed in the continent are inspired to the arguments made in Urgenda v

Netherlands. In the latter one, an environmental organization and 900 citizens sued the Dutch government

requesting more ambitious climate action, in line with international law and the best available science. In addition to

the case's victory in 2019, the touring of the book Revolution Justified,byUrgenda's attorney Roger Cox,

8

and the

creation of Climate Litigation Network, inspired and assisted like-minded attorneys in bringing similar cases in other

jurisdictions.

9

The results of the case and the attempts to circulate its strategy are tangible. As of today, the case has

been followed by the filing of 28 Urgenda-like “systemic mitigation cases”.

10

Inspired by their Dutch counterpart, civil

society organizations have brought domestic governments to court demanding to raise their climate ambition.

Besides the 20 cases filed in domestic courts,

11

8 cases reached the European regional courts. The Carvalho case

12

3

K. Bouwer and J. Setzer, ‘Climate Litigation as Climate Activism: What Works?’.

4

H. Duffy, Strategic Human Rights Litigation: Understanding and Maximising Impact (Hart 2018).

5

H. van Asselt, ‘The Role of Non-State Actors in Reviewing Ambition, Implementation, and Compliance under the Paris Agreement’(2016) 6 Climate

Law 91.

6

H. Winkler, ‘Mitigation,’The Paris Agreement: analysis and commentary (Oxford University Press 2017).

7

J. Setzer and C. Higham, ‘Global Trends in Climate Litigation: 2021 Snapshot’(Grantham Research Institute on Climate Change and the Environment

2021).

8

Roger HJ Cox, Revolution Justified (Planet Prosperity Foundation 2012).

9

https://www.urgenda.nl/en/themas/climate-case/global-climate-litigation/.

10

L. Maxwell, S. Mead and D. van Berkel, ‘Standards for Adjudicating the next Generation of Urgenda-Style Climate Cases’(2022) 13 Journal of Human

Rights and the Environment 35.

11

VZW Klimaatzaak v Kingdom of Belgium & Others (Tribunal de premiére instance francophone de Bruxelles); Verein Klimaseniorinnen v Federal Department

of the Environment, Transport, Energy and Communications (Federal Supreme Court); Plan B Earth and Others v The Secretary of State for Business, Energy, and

Industrial Strategy [2019] High Court of Justice CO/16/2018; Friends of the Irish environment v Ireland [2020] Supreme Court of Ireland 205/19; Family

Farmers and Greenpeace Germany v Germany [2019] Administrative Court of Berlin 10 K 412.18; Notre Affaire à Tous v France [2021] Tribunal Administratif

de Paris N1,904,967, 1,904,968, 1,904,972 1,904,976/4–1; Commune de Grande Synthe v France [2021] Council of State 427,301/2021; Neubauer et al v

Germany (Federal Constitutional Court of Germany); Greenpeace v Spain I (complaint) [2020] Supreme Court (Third Section) Rec. 2/265/2020; Greenpeace v

Spain II (Supreme Court of Spain); Klimatická ˇzaloba

ˇ

CR v Czech Republic (Prague Municipal Court); Plan B Earth v UK (High Court of Justice); A Sud et al v

Italy (Civil Court of Rome); Górska et al v Poland (District Court of Warsaw); Anton Foley et al v Sweden (Nacka District Court); Declic et al v Romanian

Government (Cluj Court of Appeal); Children of Austria v Austria [2023] 123/2023–12 (Constitutional Court); Fliegenschnee et al v Federal Ministry for

Digitalisation and Business Location, Austria [2023] Constitutional Court E 1517/2022–14.

12

Carvalho and others vs European Parliament and Council of the European Union [2019] European Court of Justice (Second Chamber) T-330/18.

GAROFALO 341