Courts as Agents of Change

Having to face the challenges of climate change, States have committed to international obligations and have adopted measures at the European or domestic level to route to a carbon neutral society. But most obligations (at the international, European or domestic level) are short and/or non-binding; and most States still under-perform their mitigation efforts. Courts cannot replace governments and parliaments to improve a State’s climatic action, since the diktats of the rule of law and the separation of powers oppose to that. But they can control the activity of the executive and legislative branches: pressuring for regulation in cases of lack or incomplete regulatory framework; helping to unveil obligations and fill regulatory gaps; and pointing to possible regulatory pathways. Courts need to be aware of their societal function, and of their restricted, but pivotal, role in a legal system; by assuming these functions as required by the rule of law, courts can also be agents of change.