The comparative politics of courts and climate change

Disappointment with international efforts to find legal solutions to climate change has led to the emergence of a new generation of climate policy. This includes the emergence of courts as new ‘battlefields in climate fights’. Cross-national comparative analysis of the United Kingdom, Canada and Australia supplements research that has found that litigation plays an important governance gap-filling role in jurisdictions without comprehensive national-level climate change policies. The inductive research design identifies patterns in climate change litigation. The three countries illustrate the varieties of climate policies, and thus serve as a useful entry point for thinking more generally about the interplay between climate politics and legal mobilisation. To improve theoretical understandings of the role of courts in climate change politics, the range of litigants and the variety of cases brought to courts under the umbrella of the term ‘climate change litigation’ are identified

CIVIL SOCIETY ORGANISATIONS AND THE AARHUS CONVENTION IN COURT: JUDICIALISATION FROM BELOW IN SCOTLAND?

The landscape for 'judicialisation from below' is changing in Scotland. The environmental movement has harnessed the provisions of the Aarhus Convention-an international agreement guaranteeing procedural rights in matters of environmental decision-making-in litigation efforts. In doing so litigants have begun to significantly challenge the structure of opportunities for contesting and overturning decisions of the state when it comes to environmental policy. Rather than undermining representative democracy this article argues this process constitutes a democratisation of access to justice

The Diffusion of Disability Rights in Europe

This article examines the spread of disability rights across European countries. Existing theoretical explanations of rights diffusion are unable to account for the pattern of adoption of disability equality norms across Europe over the last twenty years. The article argues top-down explanations need to be complemented by agent-centered approaches to convincingly account for the case of disability rights in Europe. Engagement with social movement theory that takes domestic activists and the meanings they attribute to rights seriously offers a better understanding of how and why we might see the rise of rights in one case and their rejection in another

Legal Mobilization under Neo-corporatist Governance: Environmental NGOs before the Conseil d’Etat in France, 1975–2010

Existing theory suggests that under neo-corporatist governance, civil society groups are less likely to take the state to court. However, a comparative analysis of the use of legal strategies across a number of environmental nongovernmental organizations (ENGOs) in France presents a counterintuitive finding. Drawing on new data on more than 200 cases taken by these ENGOs, the analysis finds that the groups that are most incorporated in policy making are also the most active litigants against the Environment Ministry in the Conseil d’Etat. This article tests a number of theoretical explanations to account for this result. It finds that the neo-corporatization of the rules determining access to justice as well as the presence of certain agent-level characteristics helps to explain when and why groups mobilize the law

Is Legal Mobilization for the Birds? Legal Opportunity Structures and Environmental Nongovernmental Organizations in the United Kingdom, France, Finland, Italy

What explains the likelihood that an NGO will turn to the courts to pursue their policy goals? This article explores the factors that influence the mobilization of law by environmental NGOs in four Western European countries. It finds that explanations focused on legal opportunity structures are unable to account for the patterns of within-country variation in legal mobilization behaviour. The research also shows that bird protection NGOs as well as home-grown national environmental NGOs are generally more likely to turn to law than transnational environmental groups. While resources and legal opportunities clearly matter to some extent, the author suggests - drawing on sociological institutionalist theory - that explanations of NGO legal mobilization should a) incorporate an understanding of how groups frame and interpret the idea of “the law” and b) explore the role of “strategy entrepreneurs” who promote the use of particular tactics within an organization

Framing Loss and Damage in the UNFCCC Negotiations: The Struggle over Meaning and the Warsaw International Mechanism

How does an idea emerge and gain traction in the international arena when its underpinning principles are contested by powerful players? The adoption in 2013 of The Warsaw International Mechanism on Loss and Damage as part of the United Nations Framework Convention on Climate Change (UNFCCC) puzzled observers because key state parties, such as the United States, historically opposed the policy. This article examines the role of frame contestation and ambiguity in accounting for the evolution and institutionalization of the “loss and damage” norm within the UNFCCC. The article applies frame analysis to data from coverage of the negotiations and elite interviews. It finds that the emergence of two competing framings, one focused on liability and compensation and the other on risk and insurance, evolved into a single, overarching master frame. This more ambiguous framing allowed parties to attach different meanings to the policy which led to the resolution of differences among parties and the embedding of the idea of loss and damage in international climate policy

Making sense of the politics in the climate change loss & damage debate

The Warsaw International Mechanism for Loss and Damage (L&D) associated with Climate Change Impacts (WIM) was established in 2013 to advance i) knowledge generation; ii) coordination and iii) support to address losses and damages under the UNFCCC. So far, the work undertaken by the WIM Executive Committee (ExCom) has focused on enhancing understanding and awareness of the issue and promoting collaboration with relevant stakeholders. Delivering on the WIM’s third function on action and support has lagged behind, and ‘the political’ nature of L&D has often been blamed for this. Key terrains of contention among Parties have included the positioning of L&D governance vis-à-vis the adaptation space and struggles around state liability and compensation. As a way to facilitate discussion on implementation options, recent research has suggested de-politicising aspects of the L&D debate; yet we have very little insight into how the politics are understood within the realm of international L&D governance. This paper brings an analysis of ‘the political’ into the picture by identifying the complex and underlying issues that fuel contention within UNFCCC L&D negotiations. It gives centre stage to the way different framings of norms and material interests affect the debate, and challenges the tendency in current L&D literature to overlook the socio-historical and political underpinnings of this area of policy-making. We employ a qualitative multi-methods research design which draws on content analysis of 138 official Parties’ submissions and statements, 14 elite interviews with key current and former L&D negotiators and is built on a foundation of 3 years of participant observation at COPs and WIM meetings. We approach this data with a political ethnographic sensibility that seeks to explore how meanings are constructed within and across different sources of data. Our empirical results show that, rather than being a monolithic dispute, L&D catalyses different yet intertwined unresolved discussions. We identify five areas of contention, including continued disputes around compensation; conflicts on the legitimacy of L&D as a third pillar of climate action; tensions between the technical and political dimension of the debate; debates over accountability for losses and damages incurred; and the connection of L&D with other unresolved issues under the Convention

Process tracing in the study of environmental politics

This article surveys the use of process tracing as a method in research on global and comparative environmental politics. It reveals that scholars have been reluctant to explicitly embrace the method, even though a great deal of environmental politics research relies on process tracing and studies causal mechanisms. I argue that the growing number of critiques that the subfield is overly descriptive and insufficiently focused on explanation is one consequence of the reluctance to explicitly embrace process tracing. Drawing on recent debates on causal mechanisms within the philosophy of social science and a growing literature on how to trace processes, this article outlines best practices in the application of the method in the study of environmental politics. I consider some ways in which the use of process tracing in the study of environmental politics may be different from its use in other areas of comparative politics and international relations

Shaping the Structure of Legal Opportunities: Environmental NGOs Bringing International Environmental Procedural Rights Back Home

Research on legal opportunity structures has focused on how existing law, standing rules, and the costs of litigation shape the likelihood that social movement groups will mobilize the law. Yet there has been relatively little research on how and why legal opportunity structures change over time. This article focuses on a case study of the mobilization of procedural environmental rights contained within the Aarhus Convention. It addresses the following empirical puzzle: how did rights that were designed to help Eastern Europeans achieve environmental democracy eventually contribute to a reshaping of the structure of legal opportunities in Britain? Through a two‐step historical process‐tracing analysis that relies on a social constructivist theoretical approach, this research shows that environmental groups mobilized Aarhus rights in a number of ways and across different judicial venues, resulting in an evolution over time of the meaning of access to justice so that it included being “not prohibitively expensive.” This research builds on previous work to show that civil society agents are not passive agents situated within legal opportunity structures but instead are strategic actors who can develop and shape access to justice through policy entrepreneurialism and litigation

Climate change litigation: A review of research on courts and litigants in climate governance

Studies of climate change litigation have proliferated over the past two decades, as lawsuits across the world increasingly bring policy debates about climate change mitigation and adaptation, as well as climate change‐related loss and damage to the attention of courts. We systematically identify 130 articles on climate change litigation published in English in the law and social sciences between 2000 and 2018 to identify research trajectories. In addition to a budding interdisciplinarity in scholarly interest in climate change litigation we also document a growing understanding of the full spectrum of actors involved and implicated in climate lawsuits and the range of motivations and/or strategic imperatives underpinning their engagement with the law. Situating this within the broader academic literature on the topic we then highlight a number of cutting edge trends and opportunities for future research. Four emerging themes are explored in detail: the relationship between litigation and governance; how time and scale feature in climate litigation; the role of science; and what has been coined the “human rights turn” in climate change litigation. We highlight the limits of existing work and the need for future research—not limited to legal scholarship—to evaluate the impact of both regulatory and anti‐regulatory climate‐related lawsuits, and to explore a wider set of jurisdictions, actors and themes. Addressing these issues and questions will help to develop a deeper understanding of the conditions under which litigation will strengthen or undermine climate governance