Walking the Tightrope: Legitimacy and the Use of Environmental Soft Law in the European Courts

When dealing with matters relating to the environment, courts are required to confront scientific complexity, uncertainty, and an array of technical information in order to reach legally correct and scientifically sound decisions. For generalist courts such as the CJEU, the adjudication of environmental matters may pose a distinct set of challenges which may, in turn, raise questions about the scientific, methodological, and administrative capacity of the Court. This chapter looks at the ways that soft law measures—and, specifically, the Commission’s post-legislative guidance documents—can be a useful tool in the hands of the Court as a means to alleviate the complexity of environmental problems and increase the capacity of the Court to effectively adjudicate, thus ultimately having the potential to make the CJEU a more effective decision-maker. Through a quantitative and qualitative analysis of the Court’s case law in the areas of biodiversity, environmental assessment, and water management, the chapter shows that the Court, and especially the Advocates General, often make use of soft law to understand environmental problems, justify their decisions, or as a source of scientific authority. Yet, while frequently a useful tool in the hands of the Court, the use of soft law in adjudication also creates tension between the legitimacy gains of increasing the CJEU’s decision-making capacity and the legitimacy concerns that often accompany EU soft law instruments.