The role of the judge in the context of climate litigation: boosting the fight against climate change and-or risk to the rule of law

• Pages: 435-452
• Author: Sergio Salinas Alcega

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THE ROLE OF THE JUDGE IN THE CONTEXT OF CLIMATE

LITIGATION: BOOSTING THE FIGHT AGAINST CLIMATE

CHANGE AND/OR RISK TO THE RULE OF LAW.1

SERGIO SALINAS ALCEGA



SUMMARY: 1. INTRODUCTION. 2. THE RISK OF CLIMATE LITIGATION

FOR THE RULE OF LAW. THE MEANING OF THE PRINCIPLE OF DIVI-

SION OF POWERS AND THE ROLE OF THE JUDGE. 3. THE PRINCIPLE OF

DIVISION OF POWERS AS AN OBSTACLE TO THE JUDGE’S ACTION IN

THE FIGHT AGAINST CLIMATE CHANGE. THE APPROACH IN JUDICIAL

PRACTICE. 4. WHAT CONTRIBUTION CAN CLIMATE LITIGATION MAKE

TO THE STRENGTHENING OF THE REACTION TO CLIMATE CHANGE? 5.

CONCLUSIONS.

1. INTRODUCTION.

The consolidation in a short period of time of what is known as ‘climate

litigation’ gives the judge a major role as an actor in the fight against global

warming. However, judicial action in this field does not fail to raise some

questions, both as to its legitimacy and its timeliness. This study is devoted to the

1 This study is part of the R&D&I project TED2021-130264B-I00, funded by MCIN/

AEI/10.13039/501100011033/ and by the European Union NextGenerationEU/PRTR and the

R&D&I project PID2021-124296NB-I00 funded by MCIN/AEI/10.13039/501100011033 and by

ERDF “A way of doing Europe”. It should also be understood as part of the actions that the AGUDEMA

Research Group (Water, Law and Environment, Competitive Reference Group S2117 R, BOA 81, 27

March 2018), develops with funding from the Government of Aragon within the IUCA (University

Institute of Environmental Sciences).

SERGIO SALINAS ALCEGA

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analysis of both issues, mainly the first, legitimacy, although it is useful to begin

by defining what we mean by climate litigation for these purposes and what the

reasons are that have led to its rapid consolidation.

The concept of climate litigation describes a reality that presents various

dimensions and can refer to a broad perspective as well as to any legal proceeding

in which, directly or indirectly, climate change is present in the arguments of the

parties. However, considering the object of analysis, especially the impact of this

phenomenon on the rule of law, this study will opt for an approach that could be

considered strict. In this sense, reference to climate litigation will be understood

as limited to a type of procedure in which an individual, whether a natural or

legal person, initiates legal proceedings against the Administration, demanding a

greater effort to reduce Greenhouse Gas (GHG) emissions.2

A relevant feature of these cases is their general nature, insofar as the effects

of the judge’s eventual decision transcend the level of the mere specific interests of

the plaintiffs to reach the level of general interests, which is why this litigation can be

identified as strategic.3 According to this, the judge assumes the defence of a common

good, which, as will be seen below, is important from the perspective of one of the

reasons for the rapid consolidation of this phenomenon: judicial activism.

Focusing more on the question of motives, it should be noted that the

rise of climate litigation is due to a combination of factors, two of which stand

out in particular: 1) the dissatisfaction of citizens, especially groups of climate

activists, with respect to the reaction that, at least so far, has been articulated

at the political level, and 2) the aforementioned predisposition on the part of

judges to climate activism which, as we shall see, can have two sides that are not

necessarily alternatives.4

2 This demand for a greater mitigation effort can take the form of requiring the state

authorities to adopt new provisions in this sense, or to modify or even annul existing ones when

they are considered an obstacle to reaching the mitigation threshold considered adequate by the

plaintiffs. This option, in the strictest sense, would leave out other types of litigation which, although

they could also be considered as climate-related, as already noted, are not so relevant for the

purposes of this study, such as litigation between private parties, particularly companies, whether

under international or domestic law. On the delimitation of the concept of climate litigation, see

MORENO MOLINA, Ángel Manuel        ,

Tirant lo Blanch, Valencia, 2023, pp. 538 et seq.

3 SCHOUKENS, Hendrik, “Climate change litigation and the separation of powers: effective

legal protection as the ultimate yardstick?”, in SINDICO, Francesco, Mckenzie, Kate, MEDICI-

COLOMBO, Gastón, WEGENER, Lennart (eds.),     ,

Edward Elgar Publishing, Cheltenham, 2024, p. 185.

4 In addition, there are other elements that contribute to climate activist groups opting

for the courtroom rather than the political arena to continue their struggle for the intensification

of mitigation efforts by states. In this sense, a certain simplification of the actors present in the

context of the judicial procedure is put on the table, pointing out that before the courts these groups

face only the state, as opposed to the cacophony of the political debate, with a set of voices that

hinder the transmission of the message to citizens. This is made difficult by the intervention of