Climate Change Litigation and the Rights of Future Generations: A New Paradigm in Environmental Law.

Abstract

This paper examines the emerging practice of climate-related litigation, which activates the rights of future generations, exploring how courts in different jurisdictions are working through the principle of intergenerational equity as a matter of law. This is because by narrowing down to the landmark cases like Urgenda v. Netherlands, Juliana v. United States, and Neubauer v. Germany, the paper records the evolution of the judicial recognition of duties to future generations within the climate governance arena. In the analysis, it is revealed that the traditional legal principles are grappling with the problems of time and causation that are inherent in climate litigation, and new forms of judicial reasoning are expanding standing, clarifying duty-of-care standards, and redefining constitutional language to suit intergenerational claims. As a result, climate litigation based on the rights of future generations represents a radical change in the direction of time as an aspect of environmental justice. However, there remain substantial procedural and substantive barriers. This new jurisprudence challenges conventional notions of legal personhood, temporal jurisdiction, and the judicial role in solving difficult policy problems.

Introduction

Climate change litigation has become a major development in modern environmental law, simultaneously presenting an area of theoretical refinement. As of 2024, over 2,000 cases were brought internationally¹ and a significant number now bring the rights of future generations, arguing that present climate policy amounts to a violation of legal duties owed to people who have not yet been born.² Such an intergenerational approach reflects the paradigmatic change in environmental law, which has long been focused on harm-based solutions, to the more visionary protection of future interests.

The philosophy and law of intergenerational equity in environmental law has a pedigree reaching back to the Earth Summit in 1992 and to indigenous legal traditions and the related principles of sustainable development.³ Nevertheless, its practical implementation via climate litigation has acquired an unprecedented boost after the ruling by the Dutch Supreme Court in Urgenda Foundation v. the State of the Netherlands in 2019.⁴ The landmark decision confirmed that the current generation has legal obligations to future generations to protect the climate, and this decision prompted other jurisdictions to make similar claims.

Legal issues of representing future generations in climate cases are enormous. The established legal systems demand identifiable plaintiffs who have suffered definite harm,⁵ which makes courts frustrated in cases where the parties who are the most vulnerable are yet to emerge. Judges have to contend with standing, causation, remedy, and separation-of-powers issues that often take the traditional legal rules to the extreme.

This article proposes that the litigation based on the rights of future generations is a needed development of legal reasoning regarding the issue of temporal justice and environmental conservation. Its main argument is threefold: (1) current legal systems lack the means to respond to intergenerational harms inherent to climate change; (2) recent judicial innovations are evolving doctrinal instruments of intergenerational protection; and (3) even though such developments are promising, they are still in their early stages of institutional and conceptual development in order to systematically protect the climate rights of future generations.

Historical Foundations of Intergenerational Environmental Law Indigenous Legal Traditions and Temporal Responsibility

Indigenous legal traditions around the world are broadly based on the jurisprudential concept of legal obligations to future generations. The Haudenosaunee (Iroquois) concept of seven-generation thinking requires those making decisions to consider the consequences of their decisions on seven consecutive generations⁶ and thus provides a prehistoric system of temporal responsibility that predates modern environmental law. The principle has been applied in a number of legal cases, such as the 2017 ruling in New Zealand to grant the Whanganui River legal personhood, which expressly referred to Māori ideologies of intergenerational care.⁷

These indigenous systems challenge the Western legal assumptions of time boundaries and legal personhood.⁸ Many indigenous legal traditions, in contrast to the common law traditions, focus on broader temporal communities of ancestors, modern people, and posterity. This conceptual split has been a determining factor in the climate litigation approaches where intergenerational rights are cited.

International Environmental Law and Future Generations

The international environmental law has increasingly incorporated the intergenerational principles over the past decades with the creation of an evolving set of treaties and declarations. The Stockholm Declaration of 1972⁹ put it in words that humankind has a solemn responsibility to protect and better the environment for the present and future generations. This formulation was further strengthened in the Rio Declaration of 1992,¹⁰ which explicitly made intergenerational equity one of the key pillars of sustainable development.

The long-term temperature goals in the Paris Agreement¹¹ implicitly recognize intergenerational commitments in that they go out to 2100 and beyond. However, all of these international commitments do not typically have any binding mechanisms, thereby leaving a gap to be filled by domestic climate litigation.

The seminal work on intergenerational equity by Edith Brown Weiss¹² defined three fundamental principles of conservation of options, conservation of quality, and conservation of access to future generations. These principles have been the basis of legal theories that have been used in climate litigation, but their application in practice is disputed and difficult.

Constitutional Environmental Rights and Temporal Dimensions

Many national constitutions have included provisions of environmental rights that have specific time frames. An example is the German Basic Law, Article 20a¹³ of which requires the state to make a commitment to protect natural life-support systems as a duty to future generations. Similarly, the French Constitutional Charter on the Environment¹⁴ states that all people have a right to a balanced environment that values health and have a duty to contribute to the maintenance and enhancement of the conditions of future generations.

Although these constitutional clauses provide a legal basis for intergenerational climate claims, their application and implementation are significantly different among jurisdictions. It is worth noting that the European Court of Human Rights has started to realize the temporal nature of environmental rights,¹⁵ especially those that concern long-term degradation.

Landmark Cases and Judicial Innovation

The Urgenda Breakthrough: Establishing State Duties to Future Generations

The 2019 ruling of the Supreme Court of the Netherlands, Urgenda Foundation v. The State of the Netherlands,¹⁶ was a landmark case in climate litigation and intergenerational rights doctrinal inquiry. The Urgenda Foundation, representing over 880 Dutch citizens, argued that poor climate policies by the government had violated human rights duties towards not only the current but also the future generations.

The Court concluded that the Dutch State had a positive obligation under Articles 2 and 8 of the European Convention on Human Rights¹⁷ to prevent the “real threat” of dangerous climate change. More importantly, the Court recognized that this obligation extended to safeguarding future generations¹⁸ due to the long-term nature of climate change, which required taking into account the effects on individuals who are not yet born.

The Court relied extensively on the “no-harm principle” and the precautionary principle,¹⁹ determining that scientific consensus on the risks of climate change established legal duties to act now to avoid harm in the future. This methodological inclination was effective in collapsing temporal boundaries in legal analysis such that future harm came to be regarded as a source of present obligations.

The importance of Urgenda Foundation v. The State of the Netherlands is therefore not only in its direct possession but also in its methodological novelties. The Court provided a stringent scientific basis by involving itself deeply in climate science and by accepting authoritative IPCC reports²⁰ as evidence of future dangers, which allowed it to make concrete conclusions about future harm and, consequently, enabled it to implement immediate legal solutions.

Youth-Driven Litigation: Juliana v. United States and Generational Standing

Juliana v. United States,²¹ initiated in 2015 by 21 plaintiffs, aged 8-19, is the prime example of contemporary climate litigation based on intergenerational rights. The complaint argues that the federal policies that encourage the extraction of fossil fuel infringe on the constitutional rights of the youth and future generations to life, liberty, and property.

The Ninth Circuit Court of Appeals highlighted the challenges facing intergenerational climate claims in U.S. jurisprudence in its 2020 opinion²² that dismissed the case on standing grounds. Though it did not deny that there was compelling evidence of harm to the climate, the Court ruled that the plaintiffs did not have Article III standing since the harms they suffered were too general and could not be remedied by judicial relief.²³

Despite these procedural challenges, Juliana has developed new legal principles of intergenerational protection. The arguments put across by the trust doctrine²⁴ are that governments are the custodians of natural resources on behalf of the future generations, and therefore, they have a fiduciary responsibility that is enforceable by the courts. This framework provides an alternative to constitutional rights claims and may enable it to avoid standing challenges.

Also, Juliana set a precedent on the strategic application of young plaintiffs as the representatives of the interests of future generations.²⁵ This methodology helps to resolve the existing issues of standing by determining the current parties that will suffer most of the future climate effects and raises complicated issues of proper representation of various future interests.

German Constitutional Court: Intergenerational Constitutional Rights

In a 2021 case, Neubauer v. Germany,²⁶ the German Federal Constitutional Court expresses what is possibly the most subtle judicial consideration so far of intergenerational climate rights. The court stated that the Federal Climate Change Act of Germany infringes on the constitutional rights of young plaintiffs since the legislation fails to establish specific emission-reduction goals beyond 2030.

The judgment, which clearly recognizes temporal aspects of constitutional rights,²⁷ finds that the Act is capable of infringing the freedom of future generations by delegating burdensome climate action to future decades. To resolve this issue, the Court creates the notion of an “intertemporal guarantee of freedom,”²⁸ arguing that current emissions restrictions are necessary to ensure that the constitutional freedoms of future generations are guaranteed.

The weight of the decision lies in its theoretical outline of how to reconcile the present and future interests in constitutional law. The Court dismisses the claim that the uncertainty of the long-term climatic impacts makes the matter inappropriate to be heard by the courts,²⁹ as it states that the science of climate provides enough confidence in long-term trends to justify legal duties.

In addition, the ruling is sensitive to separation of powers. The Court does not impose any particular policies but only requires legislators to develop more detailed roadmaps to reduce emissions,³⁰ thereby allowing democratically elected institutions to decide what exactly should be done but, at the same time, making clear to the state that the intergenerational obligations cannot be ignored.

European Court of Human Rights: Temporal Dimensions of Environmental Rights

The European Court of Human Rights has shown a more broad-based acknowledgment of the time-based aspects of environmental rights, especially by the development of a case law of long-term environmental degradation. In López Ostra v. Spain,³¹ the Court established that environmental degradation that compromised quality of life could constitute a breach of Article 8 rights to private and family life thus setting a precedent in environmental human rights cases.

The later court cases that were dealing with climate-related lawsuits have given rise to intergenerational issues. The pending case Duarte Agostinho v. Portugal and Others,³² a case filed by Portuguese youth against 33 European states, argues that their current and future rights are violated by the current lack of climate policies. This case may set important precedents with regard to intergenerational climatic rights in the context of regional human rights law depending on the outcome.

The environmental jurisprudence of the Court is also concentrated on procedural rights,³³ especially the right to information and consultations in decisions touching the environment. Substantive rights claims are more difficult avenues of intergenerational protection compared to this procedural orientation.

Legal Doctrinal Innovations and Challenges

Standing and Representation of Future Interests

The traditional standing principles present a huge challenge to intergenerational climate suits. In common law systems, plaintiffs have to demonstrate injury-in-fact, which is concrete, particularized, and adequately traceable to the actions of a defendant.³⁴ By definition, future generations cannot comply with these requirements directly.

Courts have responded with a number of strategies. Others grant standing to parties that are currently present³⁵ and will be harmed continuously in the future. Others identify procedural injuries or an elevated exposure to future harm.³⁶

Particularly relevant is the doctrine of “representative standing”³⁷ that was borrowed in the context of class action litigation and guardianship proceedings. However, the scale of the problem, the length of the time span, and the uncertainty of climate change make it difficult to apply the traditional representation schemes.

A number of commentators have suggested institutional solutions to these issues of representation, including ombudspersons and future generation guardians³⁸ to tackle them in a systematic way. The creation of a Future Generations Commissioner in Wales in 2015³⁹ shows that a long-term institutional form of representation is possible.

Causation and Scientific Evidence in Climate Cases

Climate change litigation involves issues that are difficult to prove causation,⁴⁰ because the effects of various emissions of greenhouse gases by different sources are cumulative over a long time frame and lead to global warming. Traditional tort principles⁴¹ require that the actions of a defendant must have led to the specific harm suffered by the plaintiff, something that is hard to prove in an instance when there are multiple causations and statistical, as opposed to individualized, injuries are involved.

Modern rulings have attempted to deal with these challenges in a number of ways. In some jurisdictions legal causation can be satisfied by the statistical demonstration of increased risk or proportional contribution to total harm.⁴² Otherwise, others focus on the release of governmental functions instead of tort-based causation,⁴³ which evades some conventional demands.

The introduction of climate science in the legal analysis has been critical in establishing causal relationships. The attribution science of the IPCC⁴⁴ that measures the human contribution to climate change gives the courts empirical grounds to determine that emissions are causally related to climatic impacts.

It is even more complex when future harm to future generations is involved in causation inquiries.⁴⁵ Courts are faced with questions relating to the degree of certainty required to maintain legal action and the proper period of time that causal analysis should be applied.

Remedial Challenges: Judicial Competence and Democratic Legitimacy

The substantive limitation of courts before climate litigation that seeks to redress the harms which future generations are expected to experience places limits on remedies.⁴⁶ Such harms are poorly suited to solution by conventional juridical tools: monetary compensation of prior wrongs and injunctive relief that forbids specific, discrete conduct cannot be used to resolve disputes that depend upon long-term systemic policy decisions about climate policy.

In the quest to fill this gap, courts have embraced various corrective measures. The first route is the declaratory judgment⁴⁷ that acknowledges a rights violation and refuses to imply that certain policy measures must be adopted, relegating the urgent policy issues to the legislative realm. The second method is through procedural injunctions,⁴⁸ whereby a process may be required, like the environmental impact assessment or participatory decision-making.

The most controversial approach instructs courts to set substantive emission-reduction requirements, or require specific policy tools. The Urgenda ruling,⁴⁹ which prompted the Netherlands to slash emissions by 25% by 2020, is the most direct judicial interference in climate policymaking so far.

These conflicting corrective options bring out deep-seated controversies of judicial capacity and democratic legitimacy. Critics continue to argue that courts do not possess the analytical means⁵⁰ to strike the complex economic, social and environmental trade-offs that are involved in climate regulation. Supporters respond that judicial activism protects the basic rights⁵¹  when democratic courts do not uphold the rights of those who may not have a voice in the present electoral systems, and even in the generations to come.

Comparative Approaches and Global Trends

Common Law Jurisdictions: Procedural Barriers and Innovation

The general attitude of common law jurisdictions towards the recognition of intergenerational climate rights has been a restrictive one, which has been mainly caused by the strict standing rules and the aspect of separation of powers. However, some of these jurisdictions have started experiencing a variety of innovative legal principles and procedural processes.

In Australia, a 2021 ruling of the Federal Court in Sharma v. Minister for the Environment⁵² determined that the Environment Minister had a duty of care to young people when evaluating fossil fuel projects. This conclusion was based on the fact that the Court decided that climate change was presenting a foreseeable risk of injury to the plaintiffs,⁵³ and therefore the government officials could face liability over decisions touching on climate policy using the common law.

In its turn, this decision was reversed by the Full Federal Court in 2022,⁵⁴ which held that the duty of care was too new and indeterminate to be recognized by the court. The transition demonstrates the difficulties that face intergenerational claims to climate in conservative common law jurisdictions.

The Canadian courts, on the other hand, have been more open to such claims. In La Rose v. Canada,⁵⁵ the Federal Court recognized that the young plaintiffs had the standing to seek the government climate policies under the Charter rights, and it was an extension of intergenerational climate litigation. The case is still active, but the procedural history of the case indicates an increased judicial readiness to consider the problem of intergenerational climate.

Civil Law Systems: Constitutional Foundations for Climate Rights

Empirical research of civil law jurisdictions that have extensive constitutional rights to the environment has demonstrated that these regimes are more likely to respond to intergenerational claims of climate change. This tendency can be seen in the Neubauer decision⁵⁶ of the German Constitutional Court, which expressly bases intergenerational climate protection on constitutional principles.

In comparison, the judgment of the French Conseil d’État in Grande-Synthe in 2021⁵⁷ did not directly appeal to intergenerational rights, but its time-related scope did implicitly consider the duties towards future generations. On the basis of the fact that executive inertia was in violation of EU law as well as domestic constitutional environmental obligations, the Court instructed the French government to take further climate action so as to guarantee compliance with emission-reduction commitments.

The Colombian courts have shown specific creativity in the identification of intergenerational environmental rights. The 2018 Supreme Court case of Future Generations v. Ministry of the Environment⁵⁸ decided that the deforestation in the Amazon violated the constitutional rights of future generations to a healthy environment. The Court provided extensive remedial action, thereby providing a strong precedent of judicial enforcement of intergenerational environmental rights.

Global South Perspectives: Rights-Based and Equity Approaches

Rights-based approaches and the argument of climate equity have long been applied to climate litigation in the Global South jurisdictions, which are inherently intergenerational. A good example is the ruling of the Pakistani Supreme Court in Leghari v. Federation of Pakistan,⁵⁹ where it was considered that the failure of the government to adopt climate adaptation measures was a violation of constitutional environmental rights.

The Leghari decision is significant in that it clearly appreciates the fact that climate change is a burden on the vulnerable groups,⁶⁰ which include the future generations who will inherit the damaged environmental conditions. The emphasis on equity in the decision provides an alternative location to protecting intergenerational interests other than through procedural obstacles.

Similar measures have taken place in India, where the intergenerational environmental rights have been recognized by the courts in the form of the Supreme Court recognizing rivers as legal persons with rights that can be claimed across generations.⁶¹ Such new concepts of legal personhood offer new ways of bringing future interests into climate litigation.

Theoretical Foundations and Philosophical Challenges

Temporal Justice and Legal Theory

The litigation based on climate issues addressed to future generations raises some fundamental issues of temporal justice and the temporal scope of legal obligation. The liberal theory of law, which is based on the current consent and contractual obligations, makes it hard to recognize the obligations to the individuals who did not give the contemporary consent.⁶²

The philosophical theory of intergenerational obligations by Samuel Scheffler⁶³ provides the legal foundations of future generations. By arguing that human projects and values depend on the survival of future individuals, Scheffler makes an “afterlife” argument, according to which the current generations have self-interested motives to protect the welfare of future individuals.

The theory of justice as fairness, developed by John Rawls,⁶⁴ with the addition of the so-called device of the “veil of ignorance,” has similarly supported climate litigation arguments. Had people been isolated behind an ignorance curtain as far as the generation they would live in was concerned, they would definitely encourage policies that would protect all generations against climate-related damage.

However, each of the philosophical systems meets challenges when applied to legal doctrine. Rights-based approaches have to deal with the time scope of rights and the possibility of future individuals possessing current rights.⁶⁵ In the meantime, the utilitarian views will have to face hard questions such as the temporal discounting of future welfare and the fair comparison of costs and benefits between generations.

Rights of Nature and Legal Personhood

A new movement, the “rights of nature,”⁶⁶ proposes a different solution to the problem of intergenerational protection by awarding legal personhood to natural objects that outlive individual human generations. The recognition of a personhood status of the Whanganui River in New Zealand,⁶⁷ as an example, incorporates explicitly the Māori notions of intergenerational responsibility.

The jurisprudential acceptance of the Amazon rainforest as a legal subject with rights in Colombia⁶⁸ is another example of the protection of intergenerational environmental interests. These new developments avoid the conventional standing problems by creating juridical bodies to argue in favor of long-term ecological values directly.

However, the model of the rights of nature faces conceptual challenges⁶⁹ related to the application of the right and decision-making by non-human beings. Nonetheless, these issues do not exclude the potential of the approach to institutional innovation that may enhance representation of intergenerational interests in climate governance.

Precautionary Principles and Temporal Risk

In the context of climate law, the precautionary principle⁷⁰ has become one of the major principles in cases involving future generations. The principle provides a legal justification of intervention in the face of scientific uncertainty, providing a justification to act now in order to prevent potentially disastrous harm to future generations.

However, the approach to precautionary measures makes the determination of the required level of certainty and balancing between conflicting risks and uncertainties difficult.⁷¹ A strict interpretation requires speedy, dramatic cuts in emissions but a more gradual interpretation allows more gradual approaches.

The intergenerational aspect of precautionary thinking⁷² makes the situation even more complicated because it requires modern-day communities to balance the risks of uncertain future outcomes with definite present expenses. This temporal uncertainty is in contrast to standard precautionary analysis and requires normative decision-making on how much risk to allocate to whom in different generations.

Challenges and Limitations

Procedural and Institutional Barriers

Despite the fact that intergenerational climate litigation has achieved certain significant successes, the practice is still burdened by serious procedural hurdles. In the common-law jurisdictions, in particular, standing rules⁷³ are still read narrowly, requiring provable concrete and particularized injury.

The principles of separation of powers⁷⁴ also limit the role of the judiciary in climate policy, which is always tied to complex political and economic factors. Courts can avoid decisions that place significant fiscal costs or place a constant need to monitor governmental activity.

Making these challenges even more daunting is that climate change is a global phenomenon.⁷⁵ Since the emissions of any single state constitute a very small proportion of overall world output, the effect of a national judicial ruling is small in a global context, a fact that may discourage judicial willingness to order costly national solutions.

Scientific and Evidentiary Challenges

The science of climate has come a long way, but there are significant uncertainties⁷⁶ about what will happen, when, and to what extent it can be blamed on specific sources of emissions. These uncertainties make it difficult to prove causal relations between current actions and future harm by the courts.

In particular, regional and local climate projections are associated with more uncertainty than global trajectories,⁷⁷ and this makes it difficult to specify harms that impact certain communities or individuals. This new uncertainty can either reduce the willingness of courts to implement narrowly defined remedies or require more flexible remedial systems.

There are also evidentiary challenges arising out of the time lag of climate effects,⁷⁸ which may extend far beyond typical litigation planning periods. Courts should deal with the question of when the legal analysis should stop and how specific future projections can be.

Political and Economic Constraints

The litigation against the harms that may be caused to future generations has its roots in the context of wider political and economic processes⁷⁹ that may diminish its impact. Courts have been found to be reluctant to order solutions that have significant economic costs or are inconsistent with established priorities of the government.

The implementation of judicial decisions often depends on political cooperation,⁸⁰ a resource that is often limited whenever the decision interferes with electoral or economic interests. Under these limitations, the courts often fall back on declaratory or procedural judgments instead of the specification of a policy requirement.

International economic forces also limit the scope of domestic climate action⁸¹ because governments are unlikely to take steps that would put domestic industries at a disadvantage compared with their global competitors. This collective action problem weakens the effects of individual judicial statements and highlights the necessity of concerted international efforts.

Future Directions and Recommendations

Institutional Innovation for Intergenerational Representation

The issues of intergenerational climate litigation raise a number of problems that indicate the need to have institutional arrangements⁸² that prominently consider interests of future generations in current decisions. A range of suggestions has been proposed to address this issue such as the creation of ombudspersons and the creation of special climate courts.

The Committee for the Future in Finland⁸³ is a bright example of the institutionalization of the long-term consequences of policy suggestions, whereas the Future Generations Commissioner in Wales⁸⁴ is a similar example of independent monitoring that is designed to make sure that government actions consider the long-term effects.

A few scholars have proposed special climate courts⁸⁵ with expertise in climate science and long-term policy research. Such courts would be able to develop subtle legal doctrines of intergenerational disputes and at the same time maintain democratic accountability by maintaining strong procedural protections.

Another institutional innovation that can be seen in the idea of guardianship of future generations⁸⁶ is the use of existing precedents in the form of advocacy of incompetent parties in legal cases. Appointed guardians would have standing to bring climate-related litigation and to bring future interests to other lawsuits.

Legal Doctrine Development

The development of intergenerational climate rights requires the continuous development of legal principles that can deal with the time aspect of environmental damage. Standing criteria could be expanded⁸⁷ to the extent that a greater risk or procedural harm should be considered adequate to make intergenerational claims.

The standards of causation applied in climate litigation might need to change;⁸⁸ statistical evidence and contribution to the total harm can be accepted instead of the classic but-for causation standard. This would be evolutionary in that climate law would be brought into line with other fields of environmental law, which have already modified tort principles to address the challenge of complex environmental harms.

The climate cases need to still evolve a remedial approach⁸⁹ to balance the concerns of judicial competence with the protection of rights. A possible compromise can be found in procedural remedies, such as the need to conduct environmental impact assessment before making major governmental decisions.

International Coordination and Harmonization

The global nature of climate change requires interstate cooperation⁹⁰ in order to protect the interests of future generations. Therefore, international courts and tribunals can be in a good position to develop consistent intergenerational climate rights frameworks.

A good example in point is the impending advisory opinion on the climate duties of states before the International Court of Justice.⁹¹ This advisory can provide domestic courts with the much-needed guidance in interpreting similar provisions of domestic law by explaining the international legal obligation of states to future generations. Moreover, regional human rights institutions may develop consistent doctrines on the time-boundness of environmental rights.

Current global environmental agreements should be amended⁹² in such a way that intergenerational obligations are clearly entrenched. An example is the Paris Agreement, which can align its existing review and renewal mechanisms with the concept of intergenerational equity, thus providing a more robust normative ground on which domestic litigation could be based.

Conclusion

The litigation of climate change that puts the rights of future generations into the foreground is a paradigmatic shift in environmental law that breaks the traditional time frame and broadens the field of legal liability. The cases analyzed in the article at hand outline the potential and the limits of the judicial efforts to protect the interests of the present and future generations, indicating the emergence of doctrinal trends balanced by the existing procedural and institutional restrictions.

A number of landmark cases, most notably Urgenda and Neubauer, have established precedents in terms of legally binding obligations to future generations in climate change governance. These rulings show that courts are capable of addressing the issues of scientific and temporal justice in a substantive manner even within the current legal systems. The development of intertemporal constitutional rights and intergenerational duties of care is a significant legal novelty.

On the other hand, the analysis shows that there are huge challenges that compromise the success of litigation-based intergenerational protection strategies. The standing requirements, separation-of-powers restrictions, and limited remedial alternatives keep on limiting the ability of courts to tackle climate change in a comprehensive manner. The international nature of climate change and the difficulty of policy formulation make it even harder to intervene through the courts.

The emergence of intergenerational climate litigation is an indication of a more general understanding that the conventional legal framework cannot be used to address long-term environmental problems. The temporal dynamics of climate change, with the causes decades earlier than the manifest effects, requirelegal institutions that can act over long time scales. It is true that a system of law that is concerned with current parties and current harms systematically discounts future interests.

The evidence indicates that the intergenerational protection will only be achieved through doctrinal innovation and institutional reform. Although courts are able to reconceptualize conventional norms in order to fit the temporal justice, these developments may need legislative approval and institutional support to gain systemic influence.

The intergenerational climate rights are also a source of serious questions about the democratic governance and judicial legitimacy. Even though the courts play a crucial role in protecting the fundamental rights, climate policy has complex trade-offs that may not be well suited to resolution by any court. The dilemma is how to safeguard the interests of the generations without undermining democracy.

The global aspect of climate change also indicates that litigation in the domestic context cannot fully be used to guarantee the intergenerational climate rights. It will be crucial to build protective mechanisms internationally and harmonize them. The upcoming advisory opinion of the International Court of Justice can provide useful advice in this regard.

In the future, intergenerational climate litigation is bound to develop at a faster rate. The increasing complexity of climate science, the increased awareness of the population about environmental threats, and the continuous pressure of youth movements are likely to provoke the further development of legal innovation. However, the final effectiveness of this litigation will be determined by its ability to achieve the wider societal and political transformations required to make effective climate action.

The recognition of the rights of future generations in climate litigation is not simply a technical legal innovation but a social perception of time and responsibility and a sense of intergenerational justice that is under development. With increasing climate effects, there will be an increasing need to provide strong protection of future interests, requiring additional legal innovation and institutional change.

The examples examined in this paper suggest that law is starting to address one of the most difficult aspects of climate change: its time scale and its implications on future generations that are not yet born. Although the obstacles are still mighty, the intergenerational climate rights having been recognized in the law is a significant step in the direction of more temporally encompassing environmental governance. The gradual evolution of these rights will remain dependent on the relationship between courts, legislatures, and international institutions trying to transform legal frameworks developed to address time-limited issues to the uncharted problems of climate change.

Reference(S):

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² Jacqueline Peel & Hari M. Osofsky, Climate Change Litigation, 7 ANN. REV. L. & SOC. SCI. 21, 24-26 (2011).

³ EDITH BROWN WEISS, IN FAIRNESS TO FUTURE GENERATIONS: INTERNATIONAL LAW, COMMON PATRIMONY, AND INTERGENERATIONAL EQUITY 17-45 (1989).

⁴ Urgenda Foundation v. State of the Netherlands, Hoge Raad der Nederlanden [HR] [Supreme Court of the Netherlands] Dec. 20, 2019, ECLI:NL:HR:2019:2007. ⁵ Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

⁶ OREN LYONS ET AL., EXILED IN THE LAND OF THE FREE: DEMOCRACY, INDIAN NATIONS, AND THE U.S. CONSTITUTION 173-74 (1992). ⁷ Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 (N.Z.). ⁸ ROBERT A. WILLIAMS JR., THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSES OF CONQUEST 317-23 (1990).

⁹ United Nations Conference on the Human Environment, Stockholm Declaration, U.N. Doc. A/CONF.48/14/Rev.1, princ. 1 (1972).

¹⁰ United Nations Conference on Environment and Development, Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/26/Rev.1, princ. 3 (1992). ¹¹ Paris Agreement, Dec. 12, 2015, T.I.A.S. No. 16-1104, art. 2.

¹² EDITH BROWN WEISS, IN FAIRNESS TO FUTURE GENERATIONS: INTERNATIONAL LAW, COMMON PATRIMONY, AND INTERGENERATIONAL EQUITY 38-43 (1989).

¹³ GRUNDGESETZ [GG] [BASIC LAW], May 23, 1949, BGBL. I, art. 20a (Ger.). ¹⁴ 2004 CONST. art. 1 (Fr.).

¹⁵ López Ostra v. Spain, 303-C Eur. Ct. H.R. (ser. A) (1994).

¹⁶ Urgenda Foundation v. State of the Netherlands, Hoge Raad der Nederlanden [HR] [Supreme Court of the Netherlands] Dec. 20, 2019, ECLI:NL:HR:2019:2007. ¹⁷ Id. 5.2.2.

¹⁸ Id. 5.7.9.

¹⁹ Id. ¶¶ 5.3.1-5.3.4.

²⁰ Id. 2.1.

²¹ Juliana v. United States, 217 F. Supp. 3d 1224 (D. Or. 2016).

²² Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020).

²³ Id. at 1175.

²⁴ Juliana v. United States, 217 F. Supp. 3d 1224, 1250-59 (D. Or. 2016). ²⁵ Mary Christina Wood, Advancing the Sovereign Trust of Government to Safeguard the Environment for Present and Future Generations, 39 ENVTL. L. 43, 87-91 (2009). ²⁶ Neubauer v. Germany, Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Mar. 24, 2021, 1 BvR 2656/18.

²⁷ Id. 183.

²⁸ Id. ¶¶ 186-196.

²⁹ Id. 139.

³⁰ Id. ¶¶ 248-259.

³¹ López Ostra v. Spain, 303-C Eur. Ct. H.R. (ser. A) 51 (1994).

³² Duarte Agostinho v. Portugal, App. No. 39371/20 (Eur. Ct. H.R. filed Sept. 7, 2020). ³³ Taşkın v. Turkey, 2004-X Eur. Ct. H.R. 179, 119.

³⁴ Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).

³⁵ Massachusetts v. EPA, 549 U.S. 497, 517-18 (2007).

³⁶ FutureGen Alliance v. Sierra Club, 825 F.3d 591, 598 (7th Cir. 2016). ³⁷ FED. R. CIV. P. 23(a)(4).

³⁸ INTERGENERATIONAL JUSTICE IN LEGAL INSTITUTIONS 245-67 (Iñigo González-Ricoy & Axel Gosseries eds., 2016).

³⁹ Well-being of Future Generations (Wales) Act 2015 (Wales).

⁴⁰ Allen v. Wright, 468 U.S. 737, 757 (1984).

⁴¹ RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 26 (AM. LAW INST. 2010).

⁴² Native Vill. of Kivalina v. ExxonMobil Corp., 696 F.3d 849, 858 (9th Cir. 2012).

⁴³ Urgenda Foundation v. State of the Netherlands, Hoge Raad der Nederlanden [HR] [Supreme Court of the Netherlands] Dec. 20, 2019, ECLI:NL:HR:2019:2007, 5.3.2. ⁴⁴ INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2021: THE PHYSICAL SCIENCE BASIS 3-4 to 3-7 (2021).

⁴⁵ Michael Burger & Justin Gundlach, The Status of Climate Change Litigation: A Global Review, UNITED NATIONS ENV’T PROGRAMME 15-18 (2017).

⁴⁶ Missouri v. Jenkins, 515 U.S. 70, 88-89 (1995).

⁴⁷ Neubauer v. Germany, Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Mar. 24, 2021, 1 BvR 2656/18, ¶¶ 248-259.

⁴⁸ Plan B Earth v. Secretary of State for Transport, [2020] EWCA Civ 214 (Eng.). ⁴⁹ Urgenda Foundation v. State of the Netherlands, Hoge Raad der Nederlanden [HR] [Supreme Court of the Netherlands] Dec. 20, 2019, ECLI:NL:HR:2019:2007, 8.3.1. ⁵⁰ Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J. 1346, 1372-84 (2006).

⁵¹ RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 131-49 (1977). ⁵² Sharma v. Minister for the Environment, [2021] FCA 560 (Austl.).

⁵³ Id. ¶¶ 476-489.

⁵⁴ Minister for the Environment v. Sharma, [2022] FCAFC 35 (Austl.).

⁵⁵ La Rose v. Canada, 2020 FC 1008 (Can.).

⁵⁶ Neubauer v. Germany, Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Mar. 24, 2021, 1 BvR 2656/18.

⁵⁷ Grande-Synthe, Conseil d’État [CE] [Council of State] July 1, 2021, No. 427301 (Fr.). ⁵⁸ Future Generations v. Ministry of the Environment, Corte Suprema de Justicia [C.S.J.] [Supreme Court], Apr. 5, 2018, STC4360-2018 (Colom.).

⁵⁹ Leghari v. Federation of Pakistan, (2015) W.P. No. 25501/201 (Lahore High Court Green Bench) (Pak.).

⁶⁰ Id. 7.

⁶¹ Mohd. Salim v. State of Uttarakhand, (2017) W.P. No. 210/2017 (Uttarakhand High Court) (India).

⁶² SAMUEL SCHEFFLER, DEATH AND THE AFTERLIFE 18-39 (2013). ⁶³ Id. at 45-77.

⁶⁴ JOHN RAWLS, A THEORY OF JUSTICE 284-93 (rev. ed. 1999).

⁶⁵ Joel Feinberg, The Rights of Animals and Unborn Generations, in PHILOSOPHY AND ENVIRONMENTAL CRISIS 43, 56-66 (William T. Blackstone ed., 1974).

⁶⁶ Christopher D. Stone, Should Trees Have Standing?, 45 S. CAL. L. REV. 450, 456-501 (1972).

⁶⁷ Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, § 12 (N.Z.). ⁶⁸ Future Generations v. Ministry of the Environment, Corte Suprema de Justicia [C.S.J.] [Supreme Court], Apr. 5, 2018, STC4360-2018, 5.2 (Colom.).

⁶⁹ Visa A.J. Kurki, Why Things Can Hold Rights: Reconceptualizing the Legal Person, in LEGAL PERSONHOOD: ANIMALS, ARTIFICIAL INTELLIGENCE AND THE UNBORN 69, 78-85 (Visa A.J. Kurki & Tomasz Pietrzykowski eds., 2017). ⁷⁰ Per Sandin, Dimensions of the Precautionary Principle, 5 HUM. & ECOLOGICAL RISK ASSESSMENT 889, 899-907 (1999).

⁷¹ Cass R. Sunstein, Beyond the Precautionary Principle, 151 U. PA. L. REV. 1003, 1019-28 (2003).

⁷² STEPHEN M. GARDINER, A PERFECT MORAL STORM: CLIMATE CHANGE AND INTERGENERATIONAL ETHICS 159-84 (2011).

⁷³ Juliana v. United States, 947 F.3d 1159, 1166-75 (9th Cir. 2020).

⁷⁴ Baker v. Carr, 369 U.S. 186, 210-17 (1962).

⁷⁵ American Elec. Power Co. v. Connecticut, 564 U.S. 410, 427-28 (2011). ⁷⁶ INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2021: THE PHYSICAL SCIENCE BASIS 1-7 to 1-10 (2021).

⁷⁷ Id. at 12-5 to 12-8.

⁷⁸ DALE JAMIESON, REASON IN A DARK TIME: WHY THE STRUGGLE AGAINST CLIMATE CHANGE FAILED—AND WHAT IT MEANS FOR OUR FUTURE 156-78 (2014).

⁷⁹ R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5, ¶¶ 40-51 (U.K.).

⁸⁰ Brown v. Board of Education, 349 U.S. 294, 299-301 (1955).

⁸¹ SCOTT BARRETT, ENVIRONMENT AND STATECRAFT: THE STRATEGY OF ENVIRONMENTAL TREATY-MAKING 345-67 (2003).

⁸² INTERGENERATIONAL JUSTICE IN LEGAL INSTITUTIONS 201-23 (Iñigo González-Ricoy & Axel Gosseries eds., 2016).

⁸³ Committee for the Future Act 1993 (Fin.).

⁸⁴ Well-being of Future Generations (Wales) Act 2015, pt. 3 (Wales).

⁸⁵ Jolene Lin, Climate Change and the Courts, 32 LEGAL STUD. 35, 56-59 (2012). ⁸⁶ MODEL RULES OF PROF’L CONDUCT r. 1.14 (AM. BAR ASS’N 2020).

⁸⁷ Richard H. Fallon Jr., Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons, 59 N.Y.U. L. REV. 1, 52-69 (1984).

⁸⁸ Richard A. Epstein, The Principles of Environmental Protection: An Introduction, 2 N.Y.U. ENVTL. L.J. 499, 508-12 (1993).

⁸⁹ OWEN M. FISS, THE CIVIL RIGHTS INJUNCTION 119-33 (1978). ⁹⁰ Request for Advisory Opinion Submitted by the Republic of Vanuatu, General List No. 187 (I.C.J. filed Mar. 29, 2023).

⁹¹ Id.

⁹² Paris Agreement, Dec. 12, 2015, T.I.A.S. No. 16-1104, art. 14.