Courts, climate litigation and the evolution of earth system law

Abstract

Numerous scientific reports have evidenced the transformation of the earth system due to human activities. These changes – captured under the term ‘Anthropocene’ – require a new perspective on global law and policy. The concept of ‘earth system law’ situates law in an earth system context and offers a new perspective to interrogate the role of law in governing planetary challenges such as climate change. The discourse on earth system law has not yet fully recognised courts as actors that could shape climate governance, while climate litigation discourse has insufficiently considered aspects of earth system law. We posit that courts play an increasingly influential climate governance role and that they need to be recognised as Anthropocene institutions within the earth system law paradigm. Drawing on a set of prominent climate cases, we discuss five inter-related domains that are relevant for earth system law and where the potential influence of courts can be discerned: establishing accountability, redefining power relations, remedying vulnerabilities and injustices, increasing the reach and impact of international climate law and applying climate science to adjudicate legal disputes. We suggest that their innovative work in these domains could provide a basis for positioning courts as planetary climate governance actors.