Judicial approaches to science and the procedural legitimacy of climate rulings: Comparative insights from the Netherlands and Germany

• Published date: 01 May 2023
• Author: Juliana Augustinis
• Date: 01 May 2023
• DOI: http://doi.org/10.1111/eulj.12483

ORIGINAL ARTICLE

Judicial approaches to science and the procedural

legitimacy of climate rulings: Comparative insights

from the Netherlands and Germany

Juliana de Augustinis

*

Abstract

This article explores how judicial approaches to science relate to the procedural legitimacy of rulings

in cases where the plaintiffs seek a change in a government's overall climate policy. It reviews

challenges in court interaction with climate science and compares two prominent cases: Urgenda

v. The State of the Netherlands and Neubauer et al. v. Germany. The selected lawsuits yield

comparative interest in aiming for changes in national climate policies and emission mitigation

targets, involving the same kind of evidence (Assessment Reports by the Intergovernmental Panel

on Climate Change) but resulting in partially opposing decisions. The analysis reveals that scientific

inputs informed courts about climate change risks and mitigation measures. It also suggests that

differing approaches to scientific reports influenced contrasting decisions regarding mitigation

targets. Finally, it provides insights into how engagement with evidence might impact judgments'

legitimacy from a procedural perspective.

1|INTRODUCTION: THE GLOBAL EXPANSION OF CLIMATE

LITIGATION, THE DILEMMAS OF EVIDENCE-BASED REASONING AND

LEGITIMACY CONCERNS

The use of litigation to achieve social reform is neither a new nor an academically overlooked phenomenon.

Academic studies and commentaries on public interest litigation (PIL) date back to the 1970s at least.

1

Nevertheless,

the topic remains as relevant as ever, given the contemporary expressions of PIL that continue to develop in

the twenty-first century. One fascinating current example of courts as an arena for policy change, given its radically

* PhD at the Department of Public Law and Governance of Tilburg Law School, Tilburg University, Tilburg, Netherlands.

1

See, for instance, the following academic contributions from different legal traditions (common and civil law, respectively): A. Chayes, ‘The Role of the

Judge in Public Law Litigation’, (1976) 89 Harvard Law Review, 7; M. Cappelletti, ‘Vindicating the Public Interest through the Courts: A Comparativist's

Contribution’, (1976) 25 Buffalo Law Review,3.

Received: 22 July 2022 Revised: 7 February 2024 Accepted: 8 February 2024

DOI: 10.1111/eulj.12483

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.

378 Eur Law J. 2023;29:378–392.

wileyonlinelibrary.com/journal/eulj