Adjudicating Climate Change (In)Action From Urgenda To Neubauer: Minimum Reasonableness And Forward-Oriented Proportionality

The article focuses on one aspect of climate litigation: what is the standard of review for adjudicating climate action (or inaction, or inadequacy of such action) of a State? Comparing the legal reasonings in the cases Urgenda and Neubauer, the article argues that the Dutch Supreme Court used a ‘minimum reasonableness test’, while the German Federal Constitutional Court developed a ‘forward-oriented’ version of the principle of proportionality. The analysis shows that these different types of standards of review entail a different use and reliance on science and involve a broader or narrower judicial review on Governments’ discretion. The transformation of the principle of proportionality, as developed in the Neubauer case, potentially drives more ambitious climate action, taking seriously the principle of inter-generational equity and paving the way for primacy of climate action over other public interests. However, this trend could face opposition from the point of view of the separation of powers principle.