Towards the judicial recognition of the right to live in a stable climate system in the European legal space? Preliminary remarks

Climate crisis is the major challenge we are facing in the contemporary era. For decades experts have warned policy-makers of the risks of global warming, but it is only in very recent times that there has been a widespread public awareness of the adverse effects linked with this phenomenon and the need to take action with the utmost urgency. Due to inadequate responses or unsatisfactory steps forward to counteract global heating on part of governments and gas-emitting corporations, affected groups have turned to mobilisation campaigns. In the meantime, NGOs and activists put pressure on States and corporations also through judicial disputes, which have flourished in the last handful of years. Strategic climate change litigation has generated a shift in the focal point of climate action, from the international arena to the domestic level, where the courts are called to impose on the States the meeting of their obligations. Recent lawsuits have incorporated rights-based arguments to sustain the plaintiffs’ grievances, signalling a human rights turn in climate litigation. This essay has a threefold purpose: it aims at contributing to the literature on climate change litigation by discussing a recent lawsuit launched against the European Union, namely the Carvalho case; at identifying recent trends in the circulation of models in this ambit; and at introducing the topic of the right to live in a stable climate system. In this perspective, the essay proceeds as follows. As a starting point, a brief illustration of the threat posed by climate change and the international climate regime are outlined. Subsequently, sections 2 and 3 deal with the themes of the classifications of climate change case law and of the so-called attribution science and its relevance in climate change litigation, making some references to the Dutch Urgenda case, which inspired the Carvalho case. In section 4, an account of the EU climate change-related disputes and of the Carvalhocase rendered by the General Court in 2019 and currently pending in appeal before the Court of Justice is provided. This controversy is part of a new generation of climate cases that adopts a rights-based approach and calls for climate justice. Then, in section 5, an illustration of the problematic issue of legal standing in the EU jurisdiction pursuant to Art. 263(4) TFEU is provided.Lastly, section 6 concludes with reflections on the potential for litigation strategy to contribute to the effective enforcement of climate change law in the European legal sphere and on the right to live in a stable climate system.