The Legal Standing of Associations in Climate Litigation between Majoritarianism and Representativeness: Towards a Theory of Subsidiary Social Spheres

Alberto Nicòtina will discuss his recent paper on the growing trend of climate litigation as a means to address gaps in climate policies.

Alberto is a Postdoctoral Researcher and Lecturer in EU Law at the University of Amsterdam. He is currently working on the project ‘Strategic Climate Litigation’s Direct and Indirect Consequences for Democracies’. His research interests include comparative constitutional law, especially within the EU, environmental law, legal theory, and qualitative legal methods.

Abstract

The rise of climate litigation shows a shift from traditional democratic processes to judicial avenues for environmental justice. Activist organizations are increasingly seeking judicial intervention to address deficiencies in climate policies, challenging the adequacy of majoritarian (political) decision-making. This raises the question whether courts should hear this kind of cases. With its recent KlimaSeniorinnen judgement, the ECtHR indicates a solution. By granting standing to the KlimaSeniorinnen association, but not to its individual members, the Strasbourg Court seems to draw a distinction between majoritarianism and representativeness or, in other terms, between quantitative and qualitative forms of interest representation. Although clear in establishing the standing criteria for climate activist associations, scholars and judges have found this decision lacking a broader theoretical justification. With the aim to fill this gap, this paper finds in the principle of (horizontal) subsidiarity the most fitting theoretical framework to acknowledge the role of civil society organizations in both complementing and ensuring accountability for the actions of public authorities in pursuing collective interests. In recognizing the plurality of (potentially competing) collective interests, this paper also outlines a theory of subsidiary social spheres and individuates in strategic (climate) litigation its means of enforcement.