1. Back to the Future
The re-election of United States (US) President Donald Trump in November 2024 has evoked a sense of déjà vu. In 2017, a Transnational Environmental Law (TEL) editorial following his initial election expressed deep concerns about potential upheavals in environmental law while highlighting the resilience that polycentric mechanisms might offer in the face of disrupted US environmental policies.Footnote 1 Since then, scholarly interest in the interplay between populism and environmental law has flourished.Footnote 2 A subsequent TEL editorial lamented the ongoing challenges to established environmental legal systems, including Trump's rollback of US environmental protections as well as the impact of Brexit on United Kingdom (UK) environmental law.Footnote 3 Today, those reflections gain renewed relevance, illustrating that revisiting the past is often essential for navigating the future.
Indeed, it can feel as if progress in environmental law is caught in a loop. Familiar debates resurface, and old obstacles reappear. The 2023 emissions gap report of the United Nations Environment Programme (UNEP), aptly entitled ‘Broken Record’, captured this sentiment: the world faces a ‘disturbing acceleration’ of climate records,Footnote 4 but calls for decisive action remain unanswered, as underscored by the, expectedly, conservative outcomes of the 29th Conference of the Parties (COP-29) to the United Nations Framework Convention on Climate Change (UNFCCC).Footnote 5 As we assess what transnational environmental law might look like in coming years, the outlook is sobering. Short-term prospects appear fraught, and long-term projections of environmental degradation paint a bleak picture.
Nevertheless, the international community has begun to set its sights on long-term governance. The Pact for the Future, adopted in September 2024 by the United Nations General Assembly (UNGA), outlines 56 objectives aimed at protecting the interests of present and future generations.Footnote 6 The pact aims to strengthen multilateral cooperation on pressing global issues such as climate change, digital governance, and international peace, aiming to avert ‘a future of persistent crisis and breakdown’.Footnote 7 Central to this vision is the ‘Declaration on Future Generations’, a guiding document promoting national and international policy coherence on future-focused governance.Footnote 8 The appointment of a UN Special Envoy for Future GenerationsFootnote 9 – while less ambitious than the fictitious but visionary ‘Ministry for the Future’ of novelist Kim Stanley RobinsonFootnote 10 – represents a step towards institutional advocacy for those yet to come. Despite immediate political and economic pressures often overshadowing long-term concerns, the future is undeniably trending.Footnote 11
In this issue, we revisit themes that TEL contributors have previously explored, examining the emerging focus on future generations and its potential impact on legal systems and doctrines.Footnote 12 This exploration raises critical questions: Is the concept of future generations sufficiently concrete to drive meaningful change, or too ambiguous to be effective? How should we balance the needs of present and future populations? Does an emphasis on future generations risk justifying inaction today, relying on speculative future technologies or policies? Who has the authority to speak for future generations? How should we define sustainability?
This issue of TEL delves specifically into the role of courts in shaping environmental law, featuring a Symposium collection on future generations litigation and two additional articles, including a case comment, on climate litigation.
2. Future Generations in Court
The Symposium collection, entitled ‘Future Generations Litigation and Transformative Changes in Environmental Governance’ and convened by Ole W. Pedersen and Katalin Sulyok, marks a significant evolution in transnational environmental law. While judicial recognition of future generations is on the rise in both international and domestic contexts, it remains inconsistent and fraught with legal challenges.Footnote 13 The Symposium underscores how litigation aimed at protecting future generations is challenging legal norms and reshaping governance frameworks. The contributions explore the transformative potential of such litigation by holding states accountable for long-term impacts and integrating future-focused policies into present-day legal structures.
The Symposium collection features six articles, introduced in a Foreword by the convenors.Footnote 14 They position this collection as a mapping exercise of the doctrinal frontiers in future generations litigation and come to the conclusion that intergenerational equity ‘presents a challenge of constitutional proportions’.Footnote 15 As demonstrated in the articles, this challenge involves reconfiguring domestic governance structures, redefining fundamental concepts such as the rule of law and sovereignty, and transforming both plaintiffs’ strategies and judicial reasoning.Footnote 16 Importantly, the conveners emphasize that ‘courts do need the future to be able to restrain the present’.Footnote 17 Based on the findings of the Symposium collection, they identify three structural impacts of future generations litigation: (i) a decentralizing force that empowers new voices, including local communities; (ii) a diversifying power that gives rise to new rights holders; and (iii) an expansive force that brings soft law aspirations into binding legal standards.Footnote 18
The first two articles explore common trends in future generations litigation across jurisdictions. Katalin Sulyok opens the Symposium by critiquing the anthropocentric and presentist nature of the rule of law,Footnote 19 arguing for its extension to posterity.Footnote 20 Sulyok considers that framing cases around future generations can be a powerful litigation strategy, with tangible impacts.Footnote 21 Drawing from an analysis of global litigation strategies and court decisions, she identifies structurally similar legal standards used worldwide, which correspond to five requirements flowing from the rule of law: respect for human rights, certainty of law requirements, prohibition of arbitrary exercise of governmental powers, non-discrimination, and access to justice.Footnote 22 She concludes that embedding intergenerational dimensions in rule of law obligations could help to shape a legal order more resilient to future risks.Footnote 23
Emma Lees and Emilie Gjaldbæk-Sverdrup are also interested in the spread of ideas and concepts across jurisdictions. They delve into the global convergence of judicial approaches in climate litigation. They argue that the era of climate litigation has transitioned from an era of innovation to one of harmonization,Footnote 24 a process they term ‘fuzzy universality’.Footnote 25 They identify an emerging prototype in climate litigation, characterized by three features: (i) a focus on impacts upon youth and future generations, (ii) claims grounded in rights-based language, and (iii) reliance on reports of the Intergovernmental Panel on Climate Change.Footnote 26 This pattern allows courts to transform complex factual issues into legal problems, underscores the interconnected nature of environmental harm, and bypasses political questions.Footnote 27
The next two Symposium articles focus on the individuals represented by the term ‘future generations’. Aoife Nolan addresses the conceptual ambiguity surrounding this group,Footnote 28 particularly the unclear relationship between future generations and living children.Footnote 29 She argues that courts should recognize and address the definitional lacuna, which is important to identify concrete rights holders.Footnote 30 Without this clarity, existing legal frameworks risk being diluted, potentially creating divisions between the interests of these groups, and undermining constitutional tenets and rights protection.Footnote 31
Margaretha Wewerinke-Singh and Alofipo So'o alo Fleur Ramsay emphasize the importance of humanizing the abstract concept of future generations in climate litigation. They point out that future generations can appear impersonal and distant because they do not ‘yet have stories of their own’.Footnote 32 To foster ‘more ethical and inclusive outcomes’, they advocate narratives that bring the human impacts of climate change to life.Footnote 33 This approach aligns with Nolan's observation that involving children as claimants in litigation personalizes the otherwise abstract claims of climate victims.Footnote 34 Wewerinke-Singh and Ramsay argue that compelling narratives, which awaken ‘the moral imagination to our shared destiny across generations’, can drive meaningful climate action.Footnote 35 To do so, they draw inspiration from Indigenous cosmologies that challenge dominant narrativesFootnote 36 and reveal the cultural impacts of climate change, as well as the sacred interconnectedness between human communities and the natural world.Footnote 37
The final two Symposium articles delve into the operationalization of the concept of future generations in domestic and international environmental law. Elen Stokes and Caer Smyth examine the Well-being of Future Generations (Wales) Act 2015,Footnote 38 a landmark piece of legislation that mandates public bodies to pursue sustainable development aligned with the ‘well-being goals’ of Wales. While some critics dismiss the Act as purely aspirational and unenforceable, Stokes and Smyth offer a more nuanced perspective. They identify specific provisions with enforceable potential and highlight the limited but vital role that courts can play in ensuring compliance.Footnote 39 The authors underscore that the Act's significance lies in its comprehensive infrastructure rather than any isolated element.Footnote 40 They contend that the Act has ‘constitutional significance because it was intended to effect a fundamental change in governance structures and the culture of Wales’.Footnote 41 By fostering structural conditions conductive to hope, the Act opens new possibilities for environmental governance.Footnote 42
Caroline Foster concludes the Symposium by examining how international legal norms, particularly the no harm rule and the principle of state sovereignty, intersect with the emerging recognition of future generations’ rights.Footnote 43 Through a detailed analysis of international case law, she argues that the concept of ‘due regard’ could operationalize the no harm rule in respect of future generations’ interests.Footnote 44 Foster emphasizes that international courts can make transformative contributions in the context of advisory proceedings on climate change to protect the interests of future populations.Footnote 45
3. The Climate in Court
Complementing the Symposium collection are two articles on climate litigation that showcase the richness of cases brought to protect the climate system. The first article, by Angela Hefti, examines the individuals who are driving climate litigation, particularly those at the intersection of multiple vulnerabilities (in relation to gender, age, and disability).Footnote 46 Hefti explores how these ‘intersectional victims’ are disproportionately affected by climate change but also emerge as crucial agents of change in human rights-based litigation. She argues that systemic inequalities often marginalize these individuals, strengthening their claim to victim status under international human rights frameworks, particularly the European Convention on Human Rights.Footnote 47 Hefti's nuanced framework highlights how climate-related harms intersect with social inequalities, urging legal systems to adopt socio-legal concepts like intersectionality. This approach opens new avenues for climate litigation, emphasizing procedural justice for marginalized communities.
Hefti's focus on today's climate victims resonates with the Symposium's exploration of future generations. In their Symposium Foreword, conveners Pedersen and Sulyok reference one of the cases Hefti examines: KlimaSeniorinnen.Footnote 48 They provide a bridge between the two perspectives. Indeed, the European Court of Human Rights (ECtHR) paid due regard to ‘intergenerational burden-sharing’,Footnote 49 while also acknowledging that ‘the members of society who stand to be most affected by the impact of climate change can be considered to be at a distinct representational disadvantage’.Footnote 50 This case illustrates how references to both future generations and vulnerable communities can impose specific obligations on states,Footnote 51 reinforcing the interconnectedness of these issues.
The second article, by Parul Kumar,Footnote 52 presents a case comment on the judgment of the Supreme Court of India in Vedanta Ltd v. State of Tamil Nadu and Others.Footnote 53 The decision affirmed the closure of the Vedanta copper smelting plant in Tuticorin in southern India, emphasizing human dignity, well-being, and the pursuit of what the Court termed ‘the good life’. The judgment, rooted in the ‘polluter pays’ principle and intergenerational equity, underscores a growing judicial focus on the long-term impacts of industrial activities on communities, an increasingly significant consideration in climate-related cases.Footnote 54
Kumar's analysis highlights the importance of addressing localized environmental harm, echoing themes from the Symposium collection.Footnote 55 The author argues that, although not explicitly framed as a ‘climate case’, the Vedanta judgment should be viewed as such because it enhances the accountability of multinational corporations, directly confronting the drivers of climate change.Footnote 56 While most definitions of climate litigation encompass cases that have an explicit link with climate change, the Vedanta decision emphasizes localized environmental harm and human rights, offering a richer understanding of the different ways in which local communities mobilize the law in response to the climate crisis.Footnote 57
4. Transnational Environmental Law's Future
This issue of TEL offers novel insights into a long-standing principle of environmental law. Once viewed as radical and potentially incompatible with existing systems of law, the principle of intergenerational equity is becoming increasingly important in legal discourses and practice, gaining traction domestically and internationally. Its increasing prominence reflects a collective recognition of the urgent need to design legal mechanisms better suited to address the long-term impacts of environmental degradation.
The transnational spread of intergenerational equity, coupled with the commonalities observed across diverse litigation strategies and judicial decisions, is a testament to the vitality and importance of global actors exploring options to reimagine the rule of law. This shift represents more than a legal trend; it signals a broader cultural and institutional transformation. By empowering marginalized voices, creating new rights holders, and integrating long-term accountability into existing frameworks, transnational environmental law is charting a course towards more resilient and inclusive governance. At a time when the efficacy of environmental law is under intense scrutiny, this emerging transnational discourse offers a glimmer of hope. It demonstrates that, even amidst uncertainty, legal systems can adapt to confront unprecedented challenges.
