Where the Gavel Meets the Greenhouse: Are Courts the Climate's Last Line of Defence?

By Riya and Sharvari, mentored by Elizabeth Wu and Anil Changaroth

1. Introduction

Imagine a courtroom in The Hague, unremarkable except for what hangs in the balance: the emissions trajectory of an entire nation. The judges are not scientists or elected officials, yet their ruling will decide when and how fast a government must cut carbon. This is not hypothetical. In 2019, the Dutch Supreme Court ordered the Netherlands to reduce emissions by at least 25%, reasoning that the state’s own human rights obligations demanded nothing less.^[1] As the gavel falls, an uneasiness lingers: should judges be making this call at all?

This unease sits at the heart of one of our generation’s most consequential debates. In 2025, the number of climate cases filed across more than 50 jurisdictions skyrocketed to over 3000, nearly tripling the figure recorded in 2017.^[2] Courts that were once bystanders to environmental policy have now been actively participating in shaping it. Yet, the separation of powers dictates that legislatures write laws, executives carry them out, and judges interpret them. So where does a crisis too urgent to wait and too complex for a single institution to solve alone leave the judiciary?

We argue that courts have a legitimate, but narrow role to play. Where legislatures and executives fail to act on their commitments, courts can be expected to enforce pre-existing climate obligations. However, the line must be drawn when they begin prescribing the content of climate policy rather than shaping its implementation, as this risks trading judicial legitimacy for expedience– a trade that neither democracy nor the climate can afford.

2. Courts as the Backstop, Not the Bystander

There is a meaningful distinction between a court that writes policy and one that enforces existing policies. Leghari v Federation of Pakistan illustrates the latter. When the Pakistani government failed to implement its own National Climate Change Policy, a farmer petitioned the Lahore High Court, arguing that this inaction violated his constitutional right to life. The court agreed, directing government ministries to accelerate implementation and establishing a Climate Change Commission to monitor their progress.^[3] Here, the judges were holding the government to promises it had already made.

Judicial intervention is least threatening to democratic accountability when it functions as a backstop against implementation failure rather than a substitute for policy formulation. Urgenda operated on similar logic, where the Dutch government had already accepted that dangerous climate change must be avoided through international commitments, and the court simply held it to that standard.^[4] In both cases, the judiciary did not step outside its lane so much as it refused to let the executive step outside its own.

3. Contextual Importance

Whether judicial intervention is defensible cannot be assessed in a vacuum. Instead, it depends on how well the other branches of government are functioning in the first place. In jurisdictions with strong, well-resourced regulators, courts can reasonably defer to executive expertise. But where regulatory institutions are weak or vulnerable to political capture, that deference becomes a luxury that communities cannot afford.

Consider the Jiasa Hydropower case in China’s Yunnan province, where a US$532 million project secured administrative approval before environmental groups discovered it threatened the last surviving populations of the critically endangered green peafowl.^[5]

The court halted construction, invoking the precautionary principle to prevent irreversible ecological harm despite the project’s economic significance.^[6] Similarly, in Malaysia, the Ipoh High Court intervened repeatedly to halt the Ulu Geruntum hydroelectric dam after developers built on Orang Asli ancestral land without free, prior and informed consent, ultimately ordering companies to vacate and compensate for destroyed grave sites and orchards.^[7] Evidently, neither court was legislating environmental policy. Instead, both merely stepped where regulators had failed the communities they were meant to protect.

Contrastingly, there have been instances where courts did cross that line. For example, in litigation over India's critically endangered Great Indian Bustard (GIB), the Supreme Court's first move was not to enforce an existing rule, but to create one. It restricted overhead power lines across approximately 99,000 km² of the bird's habitat and directed that certain power lines be laid underground.^[8]

Here, the court arguably went beyond enforcing existing standards, designing India’s renewable energy infrastructure policy down to where power lines should be built. The contrast is stark: while Jiasa and Ulu Geruntum show courts enforcing obligations regulators had failed to uphold, the GIB order highlights what happens when courts start making the rules themself.

4. The Peril of Unelected Legislature

That said, it would be naive to assume that every instance of climate litigation stays neatly within boundaries. Climate policy inevitably involves tradeoffs: between economic growth and reduced emissions, present sacrifice and future benefit, national development and global responsibility. At their core, these tradeoffs remain political choices that belong in democratic debate, not in courts.

The South Korean Constitutional Court’s ruling was a landmark case. Upon finding that the government’s emissions targets inadequately protected the constitutional rights of future generations, the court ordered the legislature to address the gap in its climate framework, while leaving the specific targets to be determined by the legislature itself.^[9] While some may categorise this as judicial interference, we opine that in this case, courts were simply identifying a constitutional failure without pinpointing the precise policy solution.

The pattern recurred in Milieudefensie v Shell, where Shell was ordered to cut emissions by 45% by 2030, an unprecedented judicial intervention into a multinational’s business model (Milieudefensie et al v Royal Dutch Shell plc(District Ct of The Hague, 2021)). Though the ruling was simultaneously overturned on appeal in 2024, the Court of Appeal held that Shell was required to reduce its emissions. It then explained the overturn but emphasised that courts could not prescribe a specific reduction percentage, given the lack of sufficient consensus on what reduction should apply to an individual company, and the difficulties surrounding Scope 3 emissions.^[10] This exposes the difficulty courts face in determining the precise technical requirements of climate policy, even where the underlying obligation to act is recognised.

5. Choosing Enforcement over Invention

In essence, the tension between these examples is uncomfortable, but necessary to clarify the conditions under which the judiciary should be willing to act. Courts that overreached arguably did so by attempting to dictate specific policy outcomes better suited to technical agencies. On the contrary, courts that confined themselves to enforcing pre-existing legal rights and obligations left the details of implementation to the respective institutions built for that purpose.

Circling back to the GIB order in India Supreme Court, the case demonstrates self-correction in practice. Recognising that the blanket direction was arguably too blunt and collided with India's renewable energy commitment, the court recalled its earlier direction and appointed an expert committee to recommend a more technically grounded set of measures.^[11] The Court itself acknowledged that the decision on whether to convert overhead power lines into underground lines was a matter of environmental policy and that such questions were better assessed with the assistance of domain experts. Rather than clinging to its own policy preference, the court recalibrated, choosing to restore the balance between judicial protection and institutional competence. Therefore, we argue that the judiciary already polices its own boundary to a great extent, leaving us with the primary challenge of ensuring that this is done consistently, and not just per convenience.

6. Conclusion

As for the courtroom in The Hague, judges who ordered the Netherlands to cut its emissions were holding a government to a promise it had already made and then quietly abandoned.^[12] That distinction between enforcing a commitment and authoring one is the thread running through every case examined above. Courts are not, and should not become the primary architects of climate policy. But in a realistic world where legislatures and executives falter, they remain one of the few institutions capable of holding power to its word. The real failure today is therefore not that courts have stepped into the climate fight. It is that so many governments have left them with no other choice.

^[1] Urgenda Foundation v State of the Netherlands (20 December 2019, Supreme Court of the Netherlands).

^[2] United Nations Environment Programme, “Climate change in the courtroom: Trends, impacts and emerging lesson”, Climate Litigation Report 2025, September 2025, <https://wedocs.unep.org/handle/20.500.11822/48518> (accessed 18 September 20260.

^[3] Leghari v Federation of Pakistan WP No 25501/2015 (25 January 2018, Lahore High Court).

^[4] Urgenda Foundation v State of the Netherlands (20 December 2019, Supreme Court of the Netherlands).

^[5] Feng Hao, “Green peafowl lawsuit exposes dam damage”, DialogueEarth, 20 November 2018 <https://dialogue.earth/en/nature/green-peafowl-lawsuit-exposes-dam-damage/> (accessed 18 September 2026).

^[6] Laura Zhou, “Court reprieve for China’s rare green peafowl but its future is still uncertain”, South China Morning Post, 3 Jan 2021, <https://www.scmp.com/news/china/politics/article/3116193/court-reprieve-chinas-rare-green-peafowl-its-not-out-woods-yet> (accessed 18 September 2026).

^[7] Ashley Yeong, “Malaysian court shuts down hydroelectric dam project on indigenous land”, Mongabay, 12 September 2024, <https://news.mongabay.com/2024/09/malaysian-court-shuts-down-hydroelectric-dam-project-on-indigenous-land/>  (accessed 18 September 2026).

^[8] M K Ranjitsinh v Union of India (19 April 2021, Supreme Court of India) (Civil Original Jurisdiction).

^[9] Woodpecker et al v South Korea (29 August 2024, Constitutional Court of Korea).

^[10] Milieudefensie et al v Royal Dutch Shell plc (12 November 2024, The Hague Court of Appeal).

^[11] M K Ranjitsinh v Union of India (21 March 2024, Supreme Court of India).

^[12] Urgenda Foundation v State of the Netherlands (20 December 2019, Supreme Court of the Netherlands).