Could the European Court of Justice be a Decisive Player in Climate Justice?

Abstract

The article aims to assess to which extent the European Court of Justice (ECJ) is able to play an effective role in climate change justice. While some national courts are trying to respond to one of the greatest challenges of our time, which is requiring them to reinvent their role, the ECJ is maintaining a very for-malistic approach that raises questions about its capacity to respond to these new challenges. The key question is whether, although the ECJ faces both procedural and substantive limitations, it has legal in-struments available to overcome them as well as the legitimacy. To that end, the article analyses the limits of individual access in environmental disputes in front of ECJ and tests the justifications ad-vanced. On the one hand, the European judge would appear to be best placed to take action on such an issue, in accordance with functionalist theories of integration: a transnational problem (climate change) must be resolved at the transnational level. Notably, in the past, when the will of Member States has been defective, the ECJ could be relied upon to advance action on a Europe-wide scale. Therefore, when it comes to climate change, its authority could be undermined if it maintains a formalistic approach to such a major societal issue. On the other hand, a less formalistic approach would require the European judge to accept, more broadly, private, and even transgenerational, claimants into its courtroom, so that it can become a new space for activist dialogue. Should, and can it be the guardian of agonistic democracy without doing judicial activism? As a result, the article suggests that by applying a climate justice lens, European judges could push the boundaries of existing law to address climate change more comprehensively, by exploring the potential of the European values, enshrined in Article 2 of TEU which could give substance to a subjective right of a clean, healthy, and sustainable environment.