New paper on constitutional environmental state obligations

New paper on the Judicial Application of Constitutional Environmental Provisions in the European Climate Cases Arctic Oil, Neubauer, and l’Affaire du siècle and published in the Journal of Environmental Law by Agnes Hellner and Yaffa Epstein.

A lot of the recent scholarship on the constitutional protection of the environment has focused on the right to a healthy environment, and other environmental rights. In this article, the authors instead examine the role of constitutional environmental state obligations–that is, constitutional demands that the state protect the environment– in three European climate cases. In several recent European cases, public interest litigation has resulted in courts requiring states to take stricter measures to mitigate climate change. These decisions have come under some criticism from scholars and the public on the grounds that courts lack the democratic legitimacy or scientific competence to do so.

However, in the three cases we examine, litigants were in part relying on, and courts were interpreting, constitutional state obligations to protect the environment. In each of these court decisions, even when courts held that states had to do more to mitigate climate change, they were not directly enforcing individuals’ environmental rights but rather adjudicating whether legislatures had fulfilled constitutionally mandated obligations. As courts are largely telling legislatures to keep commitments made by the state or demanded by the constitution, this analysis contributes to mitigating concerns about both democratic legitimacy and scientific competence of courts to rule that states must take measures to prevent climate change. Further, the authors show that not only environmental rights, but also environmental state obligations, are important forms of environmental constitutionalism.

Agnes Hellner, Yaffa Epstein, Allocation of Institutional Responsibility for Climate Change Mitigation: Judicial Application of Constitutional Environmental Provisions in the European Climate Cases Arctic Oil, Neubauer, and l’Affaire du siècle, Journal of Environmental Law, 2023, eqac024, https://doi.org/10.1093/jel/eqac024