Going beyond traditional forms of legal exegesis
Rob van Gestel's dense book on Public Interest Litigation
3' min read
3' min read
The idea of a trial is associated with the image of a dispute between two parties (the plaintiff versus the defendant) defined by a third party (the judge) with an act (the judgment) that has effects only in the legal sphere of the two disputants. This model is called binary, bipolar or adversarial. The concept is simple. The two parties submit a conflict between their private interests to the adjudicator: an outstanding claim, a disputed property, etc. A dispute, in sum, that ends within the dispute between these two opposing parties.
But there is another model, which is dealt with by Courts to the Rescue of the Public Interest. Lessons From Landmark Cases (Edward Elgar Publishing, 2025, p. 400, € 112), Rob van Gestel's dense book on Public Interest Litigation (PIL). In this type of litigation, the plaintiffs - NGOs or individual activists, pervaded by civic spirit (public spirited citizens) - aim at social and institutional reform through policy or law change: not simply, therefore, as a by-product of deciding an individual dispute, but as the main objective of the whole case.
The so-called climate litigation is the classic example: it originated in the Netherlands with the case of the NGO Urgenda (on which the A. rightly dwells), and led - as of 2015 - to three judgments in which the Dutch courts ordered the state to limit the volume of annual greenhouse gas emissions by at least 25 per cent at the end of 2020 compared to the 1990 level.
Italy, in turn, received at the end of July the first decision in a climate change litigation case brought against a private company, ENI: the Court of Cassation in fact ruled that the Court of Rome has jurisdiction over Greenpeace's claim for damages for CO2 emissions into the atmosphere from that oil company's industrial activity, which occurred in violation of the Paris Agreement and the scenarios developed by the international scientific community to keep the temperature increase within 1.5 °C.
Van Gestel pointedly identifies the common characteristics of all PIL cases: there is always a strong emphasis on the need for structural reforms in the sector; the effects of the ruling go far beyond the (private) interests of the litigants; there is a question of violated fundamental rights and respect for the separation of powers, as each dispute involves different methods or jurisdictional strategies for the creation of new law or policies by the court deciding the individual dispute.
