Litigating for the future: Global climate litigation representing future generations
by Nina Koistinen, Doctoral Researcher
“[T]he lack of a historical and legal tradition protecting the environment for future generations almost certainly led us to the position we are in now”. These were the words of the Washington State Court of Appeal in Aji P v Washington, a lawsuit brought by children and youth challenging the operation and maintenance of fossil fuel-based energy and transportation systems by the State of Washington. This remark reflects a growing recognition that effective protection of the environment, including the climate system, requires decision-making that is sensitive to its impacts on generations to come.
Future generations are, however, at a clear disadvantage when it comes to the protection of their interests: being literally and figuratively voiceless, and politically and economically powerless, future generations have little leverage in electoral democracies. Short election cycles mean democracies are not pre-disposed to the kind of long-term thinking required to take future generations’ interests into account. Although a handful of states have tried to remedy this democratic myopia by institutionalising the representation of future generations, this approach has not been widely adopted. Perhaps it is no surprise then that those looking to represent future generations and inject more long-term thinking into decision-making have looked for other avenues to do so, including the courts.
This blog post presents the findings of research conducted on global climate litigation invoking the rights of future generations (referred to as ‘future generations climate litigation’). Our study, comprising eighty lawsuits from across the world, including national, regional, and international courts and quasi-judicial bodies, finds that claimants increasingly rely on rights- and duties-based argumentation in relation to future generations.
Legal obligations towards the future?
The remarkable rise in global climate litigation has been extensively commented upon, from the catalytic Urgenda case to the recently issued and long-awaited judgment in the David-and-Goliath case of Lliuya v RWE. At the same time, the future has been increasingly brought into focus, including in narratives around climate change: the year of 2023 saw the publication of both the Declaration on Future Generations, as part of the United Nations Pact for the Future, and the Maastricht Principles on the Rights of Future Generations. In addition, the requests for advisory opinions submitted, respectively, to the International Court of Justice and the Inter-American Court of Human Rights on state obligations in respect of climate change both include questions expressly concerning future generations.
It is becoming increasingly clear that unmitigated climate change threatens the lives and the quality of life of even not-so-distant future generations with severe, cumulative, long-lasting, and potentially irreversible impacts. These concerns have been increasingly framed in terms of the rights of future generations, reflecting the kind of rights-based framing prevalent in climate litigation more broadly.
The idea that the interests of future generations hold legal (and not just moral) weight comes from the concept of intergenerational equity/justice. At its core, intergenerational equity requires equitable benefit- and burden-sharing between generations, including between current generations, like today’s children and adults, and between current generations and future generations that have not yet been born. The judgment of the German federal constitutional court in Neubauer v Germany is probably the most well-known example of the application of a burden-sharing approach to protecting fundamental rights in the face of climate change and the emissions reduction measures necessitated by it.
Acknowledgment of duties towards future generations and the objective of intergenerational equity have long been embedded in legal instruments. Many national constitutions and international treaties speak of objectives and values relating to “posterity” or even explicitly recognise the rights of future generations. For example, Article 24(b) of the South African Constitution enshrines the right of all “to have the environment protected, for the benefit of present and future generations”, while Article 10 of the Constitution of Japan recognises both present and future generations as holders of “eternal and inviolate” rights. In the international climate change regime, the first express reference to intergenerational equity came in the preamble of the 2015 Paris Agreement, but Article 3 of the 1992 United Nations Framework Convention on Climate Change (UNFCCC) had already expressed the ambition of “protect[ing] the climate system for the benefit of present and future generations of humankind, on the basis of equity” decades earlier. Indeed, references to future generations have been part and parcel of international environmental law for many decades already. For example, the 1972 Stockholm Declaration described the protection of the environment for present and future generations as an “imperative goal” and “solemn responsibility”.
As citizens have increasingly turned to the courts to seek more urgent climate action from states and corporations alike, arguments drawing upon these legal nods to future generations have also featured in their claims. Our research conducted on future generations climate litigation globally – based on data gathered from the Sabin Centre climate litigation databases – shows that these types of claims are growing in popularity, though their success varies across regions and countries. Many courts are, however, still reluctant to engage with claims about future generations: after all, determining who future generations are, what their interests might be, and how and to what extent they should be taken into account is no easy task.
Who are future generations?
The vagueness inherent in speaking of the future means that there is little agreement on what – or rather who – is meant by the term ‘future generations’: How far into the future does this extend? Twenty, fifty, or possibly a hundred or more years from now? Are children part of future generations? If so, at what point do they transition from future to present?
Drawing a clear dividing line between various living generations is already practically impossible (the coining of terms like ‘zillenial’ and ‘cusper’ is testament to that), let alone defining generations extending potentially many decades into the future. This lack of clarity is reflected in future generations climate litigation, with parties and courts often avoiding defining ‘future generations’ entirely and preferring to speak broadly of ‘present and future generations’. The absence of clear definitions is problematic and probably contributes to the reluctance of judges to engage more closely with claims seeking to protect future generations’ interests.
Claims for future generations
Our analysis finds that when referring to the interests of future generations, claimants and courts rely on various legal norms as footholds – from the public trust doctrine to a plethora of fundamental rights, as well as environmental rights and principles, including the right to a healthy environment, rights of nature, and the precautionary principle. Representing future generations poses certain challenges because of the characteristics of future generations: they are made up of an unidentifiable and indistinguishable collective of individuals. In that sense, the claims relied on in future generations climate litigation respond to these challenges by being forward-looking/proactive and collective in nature, or by defining future generations in a way that emphasises the present by reference to children.
First, in terms of claims that are forward-looking and collective in nature, the public trust doctrine and environmental rights commonly feature in future generations climate litigation. The public trust doctrine imposes obligations on public authorities to act as trustees of certain public goods. Traditionally, the doctrine applies to public waterways. It has featured particularly regularly in climate cases brought before state and federal courts in the United States, as part of a coordinated series of lawsuits supported by the NGO Our Children’s Trust. The public trust doctrine has some advantages when it comes to representing future generations, in particular, the fact that the doctrine focuses on the trustees’ (public authorities’) obligations, meaning the identity of the beneficiaries (present and future generations) does not need to be clearly established. Despite this perceived advantage, our research shows that claimants have been largely unsuccessful in their attempts to have the doctrine extended to include the atmosphere as a public trust resource. The main reason for this is that courts are reluctant to extend the doctrine without the legislature or executive first doing so, or at the very least a superior court.
The second type of legal norm with collective and forward-looking elements relied on in future generations climate litigation is the right to a healthy environment, along with other environmental rights and principles, including the rights of nature and the principles of precaution and prevention. These norms are well-suited to safeguarding long-term interests. First, guaranteeing the right to a healthy environment requires pre-emptive action: the right would otherwise become meaningless if it could only be relied on once the environment has been degraded to such an extent that it is actively harmful to other rights. Second, the right to a healthy environment has a collective dimension because it ultimately protects common goods. Harm to those goods, like harm to the atmosphere through anthropogenic greenhouse gas emissions (i.e., climate change) usually has widespread impacts on larger groups of people and on communities, not just on an individual rights holder. In this way, in jurisdictions where rights are interpreted in a more collectivist way, courts have shown more willingness to recognise and uphold the rights of future generations. This is reflected, in particular, in judgments by courts in the Global South and notably in Latin America, like Colombia, Panama, and Brazil. In these cases, we also see a more eco-centric approach to protecting future generations, for example, through the rights of nature, as in the case of Demanda Generaciones Futuras v Minambiente, in which the rights of future generations were primarily protected through recognition of the Colombian Amazon as a subject of rights.
The case law confirms that the right to a healthy environment is increasingly being interpreted in a way that underscores its collective dimension and recognises it as a pre-requisite to the fulfilment of other (more traditional and individualistic) rights. Coupled with the growing legislative and judicial recognition of the rights of nature, these norms support legal interpretation that is more sensitive to the collective nature of environmental harms and potentially more conscious of the long-term, supporting the protection of future generations’ interests.
Children and future generations
Amongst the myriad fundamental rights invoked on behalf of future generations, children’s rights feature remarkably little. Only fifteen of the eighty cases analysed include explicit references to children’s rights, including the United Nations Convention on the Rights of the Child. Besides children’s rights, claimants also rely on the right to equal treatment, arguing that a lack of (sufficient) climate action discriminates against future generations based on age or birth cohort. Here, however, the issue of defining generations once again arises, becoming a hurdle on which claims have fatally stumbled.
The low incidence of claims relying on children’s rights is even more surprising when we take into account how pervasive language connecting children and future generations is in both the litigation analysed and in broader materials discussing the rights of future generations. It is common to see children depicted either as members or as representatives of future generations. Clearly, claimants are well aware of the effectiveness of appealing to our innate sense of duty regarding our children and children’s children. We see this in statements by claimants emphasising that “[t]here is no greater duty of parents than the protection and safety of their children. Likewise, there is no greater duty of our State government than the protection and safety of its citizens, born and yet to be born”, and that “[i]t is our children and children’s children who will suffer the harms and losses caused by our lack of action”. It seems children themselves feel a certain sense of responsibility to represent and protect future children too. So, although duties towards children play a strong narrative role in future generations climate litigation, including in youth- and child-led litigation, they are rarely translated into legal argumentation by reference to children’s rights. Instead, other avenues are preferred, like the public trust doctrine and environmental rights.
Children’s rights would seem to provide a strong legal basis for ramping up climate action, given the widely recognised vulnerability of children to climate change. However, there are many risks associated with entangling children and future generations, including that the present enforcement of children’s rights and their acutely time-sensitive nature, requiring rapid intervention to address violations or risking life-long impacts, may be relegated if children’s rights are viewed through a future-focused lens instead. Were that to be the case, children’s rights as a whole would be undermined, including their participatory rights and the best interests principle. Additionally, depending on how future generations are defined, today’s children and future persons may have few shared interests (or even have conflicting interests) making it less viable to hold children up as representatives of future generations. In any case, one might wonder whether it is fair (and reflective of the spirit at the core of children’s rights) to place this responsibility on children.
Looking ahead … at the expense of the present?
Claims based on the rights of future generations are among the many attempts to seek more ambitious climate action through novel legal arguments. But focusing on future generations can also be subject to criticism. Some argue that doing so detracts from the present harms climate change is already causing and ignores existing inequalities, undermining the achievement of intragenerational equity and climate justice. This is clearly a valid concern and should be borne in mind by parties and courts when adjudicating on the rights of future generations. After all, equitable benefit- and burden-sharing should occur not just across time but also within any given generation. Failure to address existing inequalities will only aggravate those inequalities into the future, especially as the impacts of climate change grow in severity. We therefore ignore intragenerational equity at the peril of intergenerational equity too.
Nonetheless, claims for the rights of future generations should be seen for what they are: an attempt to extend the timescales deemed relevant in decision-making, with the aim of protecting the climate system for generations to come. Whether recognising future generations as rights holders is indeed the best way to do this is open to debate. But it is clear that this is a legal (and narrative) strategy that is increasingly finding its way into climate litigation. Although courts have shown varying degrees of openness to such claims, future-oriented framing seems firmly embedded in climate-related discourse. As the impacts of climate change grow ever more imminent and transition from projected future risks to present harms, it remains to be seen whether this future-orientation will continue to grow or give way to other strategies. Should the Inter-American Court of Human Rights and the International Court of Justice pick up on the references to future generations in their respective advisory opinions on climate change and elaborate on the specific duties owed in that context, they may offer a more uniform and potentially influential basis for seeking the protection of interests of future generations before national courts.