The politics of neutrality in climate adjudication: Scientific consensus, judicial legitimacy and equity in rights‐based European climate litigation

Abstract This article examines two European rights‐based climate litigation cases— Klimaatzaak v Belgium and Milieudefensie v Shell —where courts were asked to set quantified climate mitigation targets. Such determinations inherently involve distributive questions, as they require allocating shares of a finite global carbon budget across actors and over time. I analyse how courts navigate this task while maintaining a posture of neutrality to preserve judicial legitimacy. Courts engage in ‘boundary work’ to distinguish law from policymaking and thereby enable the neutralisation of judicial intervention. I analyse how this imperative operates in these two case studies: Judges rely on the authority of scientific consensus, particularly reports of the Intergovernmental Panel on Climate Change (IPCC), to delimit the legitimate scope of adjudication. In doing so, courts treat scientific objects, notably climate scenarios and mitigation pathways, as stabilised outputs whose underlying normative assumptions and distributive implications remain largely unexamined. Overall, rather than evaluating competing climate pathways in light of human rights considerations, courts tend to interpret human rights obligations by deferring to scientific recommendations. This interpretive stance has two major implications. First, it sidelines equity arguments, given that equity requires explicit normative engagement. Second, it produces a dependence on the scientific construction of a single roadmap, thereby constraining adjudication in the face of multiple pathways that reflect different socio‐political futures. These dynamics reveal the politics of neutrality : Efforts to ground climate adjudication on ostensibly neutral and consensual foundations generate their own political implications by privileging certain forms of expertise, delimiting acceptable mitigation pathways, and influencing the distribution of climate responsibilities between actors.