A rule of law revolution in future generations’ litigation : intergenerational equity and the rule of law in the Anthropocene

This paper analyses the growing body of future generations litigation, i.e. lawsuits in which plaintiffs seek protection to long-term needs of future generations typically in domestic climate change and environmental litigation. It argues that national courts in several jurisdictions have started to deem domestic legal safeguards of inter-generational equity as justiciable and binding on the State in order to protect the long- term needs and interests of future generations against the myopic climate and environmental policies of present-day decision-makers. This paper looks at the unfolding climate and environmental crisis of the Anthropocene from a rule of law perspective. First, it addresses how the concept of the rule of law has played an instrumental role in steering humanity’s course towards the Anthropocene, and how it could have a role in finding a way out it. Second, the paper argues that despite the wide variety of the substantive legal contexts under which future generations litigation claims are brought, plaintiffs in such cases tend to claim the same types of violations across the jurisdictions, which correspond to five basic rule of law requirements. These are (i) respect for human rights, (ii) the quality of law requirement, (iii) guarantees of non-arbitrariness, (iv) access to courts and (v) non-discrimination. The paper uses an analytic framework tied to the above rule of law guarantees to examine more in-depth the litigation strategies of the plaintiffs and the doctrinal solutions of courts in cases revolving around inter-generational rights and obligations. The paper shows that several courts are willing to expand the temporal scope of the above rule of law guarantees to include concerns for otherwise disenfranchised future individuals, and thereby offer protection against generating excessive climate and environmental risks for posterity. In the narrative of this study, future generations case-law therefore showcases a revolutionary re-interpretation of traditional rule of law guarantees.