From Climate Change to Judicial Change? The Impact of Climate Change Litigation on the Role of Courts in Democratic Governance in Europe

Climate change litigation pushes courts into new policy interventions. Litigants—primarily NGOs, climate activists, and cause lawyers - ask judges to ensure that state authorities comply with international and domestic climate regulations or relevant legal commitments, including human rights. They also expect them to verify that corporations respect rules seeking to reduce their adverse climate impact, or that they compensate for any damage they cause. In doing so, courts may face criticism, in particular when they enforce measures which are unpopular or which reduce the profitability of business operations, but they remain largely within their traditional judicial functions and mandates. However, recent climate litigation demands courts to endorse more proactive and transformative roles. Litigants are urging judges to compel governments to adopt policy measures, including not only regulatory frameworks but also redistributive policies for a fair climate transition. Some litigants even expect courts to impose measures directly. Such demands challenge the traditional boundaries of the judicial function, particularly in Europe, where courts have historically avoided direct interventions in policy-making. The unique characteristics of the climate crisis—requiring urgent, long-term action that extends beyond electoral cycles—complicate governance within representative democracies, which typically operate on short-term horizons. These features explain, to some extent, why civil society actors are turning to the courts to design and enforce effective policy measures, as judges operate under different political constraints and timeframes. The growing presence and influence of climate skeptic parties and politicians may further amplify this trend towards the judicialization of climate policy and governance. Does the increasingly role of litigation and courts in climate governance trigger some kind of judicial revolution in Europe? And if so, with what effect on courts and democracy? This paper seeks to address these questions by analyzing the expectations that litigants place on courts in designing and implementing effective climate policies, and the courts’ responses, with a particular focus on questions related to justiciability of climate claims and standing to bring climate cases, the notion of separation of powers, court’s engagement with complex scientific evidence and policy analysis, and considerations related to the legitimacy of different forms of judicial interventions. It follows a qualitative research approach, including an analysis of litigants’ arguments, courts’ rulings, judicial advisor’s opinions and other relevant court-produced documentation, as well as interviews with litigants and their lawyers, and judges and judicial personnel. The findings are based on a pilot project examining select climate litigation cases in France and Austria. By interrogating how courts are adapting to address the climate crisis, this research highlights the potential ripple effects on judicial roles beyond the climate context. While existing studies focus on conceptual innovations in climate litigation, judicial strategies, or the impact of rulings on policy, little attention has been paid to what the judicialization of climate governance does do courts themselves. This paper addresses this gap, contributing to a deeper understanding of the interplay between climate governance and the evolving role of courts in democratic systems.