Judicial review of climate plans. A growing consensus

Abstract

[eng] Today, climate litigation has become one of the hot topics of both international and environmental law, especially due to its increasing rate of success in challenging governments’ policies and plans regarding climate change. However, it was not always so and, indeed, most of the history of climate litigation, especially in that specific manifestation, is a history of failure, at least until 2015. That year, the District Court of the Hague delivered its judgment in the Urgenda case and everything changed. since then, there has been an increasing number of judges and tribunals around the globe who have come to consider that, from a legal point of view, the margin of discretion of the executive or the legislature when it comes to climate change issues is necessarily constrained by the need to protect essential legally protected rights, and thus a minimum duty of care is required from the authorities. In this paper, we will endeavour to analyse how courts around the world have identified this minimum duty of care and, especially, what it entails for the margin of discretion of the State when devising its climate plans. And we will do it by distinguishing what aspect of those plans is being reviewed as well as the reasons that make those plans reviewable by the judiciary. Concerning the former, we can distinguish mainly between claims and decisions that question the targets set in domestic climate plans, on the one side, and claims and decision that address the policies defined in those plans to, normally, reach the aforementioned targets. As regards de latter, the main distinction can be drawn between those decisions that question the authorities’ climate plans based on procedural reasons and those who focus instead on substantive ones.