Tackling the Climate Crisis with Counter-majoritarian Instruments: Judges Between Political Paralysis, Science, and International Law

The climate crisis is – as far as we can see in 2021 – the greatest challenge of the 21st century. The existence of global warming as a human-made problem and the abstract need of transiting away from fossil energy sources is largely accepted. The question, however, of how to best achieve this transition is a major bone of contention – internationally, within the European Union (EU), and in many EU Member States. However, the issue will only become more pressing and political struggle will only become more forceful as the negative impacts of climate change increasingly affect our lives and livelihoods. Until now, national legislatures and executives have failed to take measures anywhere close to what would be needed to reduce emissions sufficiently to mitigate the climate crisis. The consistent failure of “politics” in different contexts – international, European, and national, or even regional and local – has motivated a growing share of citizens and civil society actors to pursue what is necessary via counter-majoritarian instruments, most prominently through climate litigation. In this Insight, I analyse these growing counter-majoritarian pressures in the context of climate change. My primary focus lies with broader questions of separation of powers, the role of the judiciary in constitutional democracies, and how legally enforceable reduction standards could and should be determined.