EU Climate Change Litigation, the Role of the European Courts, and the Importance of Legal Culture

• Published date: 01 July 2013
• Author: Sanja Bogojević
• Date: 01 July 2013
• DOI: http://doi.org/10.1111/lapo.12005

EU Climate Change Litigation, the Role of the

European Courts, and the Importance of

Legal Culture

SANJA BOGOJEVIC

´

The purpose of this article is to show it is only in light of legal culture that climate

change jurisprudence in the European Union can be explained. Examining the

case law concerning the EU Emissions Trading Scheme, this article demonstrates

that climate change proceedings in the European Union raise questions that stand

at the heart of the EU legal order; that is, they demand that the boundaries of the

EU’s regulatory competences are drawn. In effect, the EU courts focus on ensur-

ing that EU climate change laws are in accord with the rule of law or, in the

context of EU law, the borders of the EU’s environmental regulatory powers.

As such, this article shows that attention needs to be given to the interaction

between climate change laws and the constitutional role of the EU judiciary. These

interactions are considered here together with the contingency of EU climate

change litigation on EU legal culture.

I. INTRODUCTION

Climate change litigation has, in recent years, mushroomed. Much of this

type of litigation aims to help mitigate, prevent, or adapt to climate dis-

ruption by using existing public law and private law venues to establish

new judicial claims centred on the impact of climate change (Averill 2009;

Ghaleigh 2009). In this context, the judiciary is thought of as a “critical

forum” (Osofsky 2010, 4) in which the future of climate change regulation

and responsibility is debated, and the need for further legislative action is

flagged. From this viewpoint, a key feature of climate change litigation is its

accessibility to civil society—in other words, its ability to shift the decision-

making paradigm regarding climate change from states only to that of the

general public (Hunter 2009). This raises important questions regarding the

I would like to thank Chris Hilson, Lisa Vanhala, Nancy Reichman, and anonymous reviewers

for remarks on previous drafts of this article. I am also grateful to those present at the British

Academy workshop on Climate Change Litigation, Policy and Mobilization (London, April 27

2012) for their comments. Any errors or omissions remain my own.

Address correspondence to Sanja Bogojevic´, University of Lund—Law Faculty, Lilla

Gråbrödersgatan 4, Lund SE-22100, Sweden. Telephone: +46 46 222 10 84; E-mail: sanja.

bogojevic@jur.lu.se.

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LAW & POLICY, Vol. 35, No. 3, July 2013 ISSN 0265–8240

© 2013 The Author

Law & Policy © 2013 The University of Denver/Colorado Seminary

role that the judiciary plays, or ought to play, in mobilising comprehensive

laws to address pressing issues, such as climate change, and the extent to

which, if at all, courts can be relied upon to redress institutional failure—for

instance, the failure to adopt climate change regulation or adopting rules that

limit or impede combating climate change (Peel 2011; Preston 2011).

The purposes of this article are to illustrate how climate change litigation

plays out in the EU legal context and show how such litigation is contingent

on EU legal culture. Here, the concept of legal culture is used simply as a lens

through which the interaction between rules and institutions, or more pre-

cisely, the constitutional role of the EU judiciary and EU climate change

laws, is explained. In this regard, this article highlights that in interpreting the

EU’s climate change law regime, the EU courts think of constitutional—as

opposed to environmental—impacts in resolving climate change–related

disputes. As such, the judiciary pays little, if any, attention to providing a

broad forum, open to different stakeholders, to challenge the viability of

emissions trading to reduce the impact of climate change, or to promote

stricter or improved climate change laws. As will be explained, this fits well

with EU legal culture. However, it stands in contrast to the high profile

enjoyed by climate change litigation in much of the literature on this topic,

which sees the courts as key actors in furthering broad, environmental

motives in judicial climate change deliberations.

This article is divided into six parts. First, climate change litigation, and,

more specifically, the role that the judiciary is expected to play in creating

legal opportunities for social movement actors in the context of climate

change regulation, is fleshed out. This is only a brief overview of the bur-

geoning literature on this topic; it serves, nonetheless, to highlight the hopes

that tend to be imposed on the courts in the context of climate change

litigation. Second, the concept of legal culture, as it tends to be employed in

the relevant scholarship, and its application in this study, is outlined. In the

following part, the specific understanding of EU legal culture that this

article builds upon is fleshed out by reference to the constitutional role of the

EU courts and their set jurisdictions in interpreting and deciding the legal

questions raised in EU climate change litigation. As such, legal culture, in the

context of this article, focuses narrowly on institutional culture and its role

in properly understanding climate change litigation. Subsequently, climate

change litigation in the EU—or, the EU emissions trading system (ETS) case

law—is scrutinised, focusing on the meaning that the EU courts give these

deliberations. In the two final parts, these findings are evaluated and fitted

into a larger jigsaw that is scholarship on climate change litigation.

Before starting, a number of caveats must be listed. First, in discussing EU

climate change litigation, I examine only EU ETS case law, although several

other legal mechanisms, such as energy taxation, or eco-labelling exist in the

EU to combat climate change (see Krämer 2011; Peeters and Deketelaere

2006). This is because I am not seeking to establish an exhaustive study of

EU climate change litigation; rather, the intention is to illustrate how legal

Bogojevic´ EU CLIMATE CHANGE LITIGATION 185

© 2013 The Author

Law & Policy © 2013 The University of Denver/Colorado Seminary