Specifically, I have found that U.S. federal courts have stalled in fully opening the courtroom doors to climate litigants. Rather, they have written decisions pragmatically, building one step at a time without permanently closing the door to litigation while maintaining their flexibility to become more involved in future climate reform if necessary. Consequently, these decisions illustrate the role courts see for themselves, which is important to guide future climate litigation efforts. Since I find litigation complements alternative climate reform attempts, my intention is to decipher the courts’ path to provide a guide future litigants may consider to most efficiently reach their climate reform goals.

Although much climate law manifests at the domestic level, U.S. precedents can set trends internationally. Thus, many other courts may react to the approach U.S. courts take, either adopting or rejecting it in their own paths to climate reform. Accordingly, this study contributes to the international climate litigation discussion by providing elucidation into the U.S. sphere, the trends from which will influence law and decision makers globally in their own future paths through climate litigation.

This paper examines and compares the two important cases of Danube Dam and Pulp Mills Case in order to ascertain whether the International Court of Justice was ever presented with the opportunity to authentically engage with nature. It is an examination of whether and how international environmental law and principles as well as the community of practice around them created choices for an authentic engagement with nature. The idea of authenticity recognises that various levels of naturalness are not only acceptable but also socially and culturally plausible given the complexities around our understanding of what we can consider to be natural. As a result it avoids getting caught up in the habits of the mind that ascribe an essence to what is nature and humanity’s interests in it.

This paper explores the potential of this kind of thinking for defining new ways of engaging with nature and considers whether dispute settlement as a particular kind of institutional contexts for international law is ever well placed to authentically engage with nature in a way that protects it. Values such as justice, fairness, and objectivity that drive dispute settlement are more likely to place greater value on things other than an authentic engagement with matter/nature. A comparison of the Danube Dam and Pulp Mills Case in this paper seeks to identify the shortcomings of dispute settlement for an authentic engagement with nature. It will also start to assess whether these cases suggest whether this is because international environmental law is underdeveloped in relative comparison to other fields or if it’s the nature of dispute settlement institutions internationally that create this kind of structural bias against an authentic engagement with nature.