What climate litigation reveals about judicial competence

• Published date: 01 May 2023
• Author: Douwe Lange
• Date: 01 May 2023
• DOI: http://doi.org/10.1111/eulj.12492

ORIGINAL ARTICLE

What climate litigation reveals about judicial

competence

Douwe de Lange

*

Abstract

In recent years, the US and the Netherlands have been on opposing sides of the spectrum regarding

climate litigation. Dutch courts, in several revolutionary climate cases, have been an arena of societal

change, whilst climate claims in the US have been largely unsuccessful. In a way this difference

seems strange, because the US judiciary has the power of constitutional review, whilst the Dutch

judiciary does not. Against that background, this paper extensively compares the doctrines of judicial

competence regarding political questions in both jurisdictions. As a comparative framework, this

paper uses three judicial phases, namely: the institutional phase, the substantial phase, and the

remedial phase. Climate litigation reveals that the Dutch doctrine of judicial competence is focused

on the substantial and remedial phases, which has allowed it more freedom in reviewing climate liti-

gation. On the other hand, climate litigation reveals that the US doctrine of judicial competence is

focused on a strict institutional phase, dominated by the Political Question Doctrine (PQD). The

main contribution of this paper to the constitutional debate is that climate litigation reveals funda-

mental differences in doctrines of judicial competence. This is not only an important takeaway for

future climate litigation, but also, in terms of the Radbruch formula, for other potential gaps

between the executive and justice.

1|INTRODUCTION

In 2019, the Dutch Supreme Court famously decided in the Urgenda case that the Dutch government was acting

unlawfully by not complying with their climate obligations.

1

Urgenda was a breakthrough decision in climate

litigation,

2

which exemplified how, in the context of climate change, courts can certainly be an arena of societal

change.

* Legal Research Master student, Utrecht University

1

HR 20 December 2019, ECLI:NL:HR:2019:2006.

2

The Urgenda case has led to various similar climate claims being filed against governments around the world.

Received: 30 September 2022 Revised: 12 February 2024 Accepted: 22 February 2024

DOI: 10.1111/eulj.12492

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.

312 Eur Law J. 2023;29:312–325.

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