The Judicialization of Climate Change Politics: A Comparative Analysis of the United Kingdom, the United States and Canada

Lead Research Organisation: University College London
Department Name: Political Science

Abstract

Climate change is the most pressing issue on the policy agenda today. In the face of frustration at the slow pace of progress under the UN Framework Convention on Climate Change, non-state actors have increasingly looked beyond the international realm for other possible sources of effective climate change governance. Legal literature on climate change litigation looks at the increasing role courts play in determining how greenhouse gas emissions and their impacts should be regulated. In comparative politics the literature on the judicialization of policy - the expansion of the role of courts and judges in determining public policy outcomes - has flourished over the last twenty years. However, both these fields of study have tended to ignore the bottom-up influence litigants can possess. In the domain of climate change policy there is a dearth of comprehensive, comparative research about who is mobilising the law in the name of climate change and the degree to which this policy area is being judicialized.

This project focuses on the dynamics between non-state actors and judiciaries. The project will address two related questions:
1) What explains variation, across countries and over time, in the judicialization of climate change policy?
2) Why do some climate change activists and climate sceptics choose to be active participants before courts while others completely eschew the use of legal strategies in pursuit of their policy goals?

The study will rely on a comparative research design that looks countries with differing levels of judicialization of climate change politics: the United States (a high degree), Canada (relatively low) and the United Kingdom (in between). The research will deploy a socio-legal methodological framework that relies on techniques of frame analysis, that seeks to analyse how people understand situations and activities, and process tracing, which allows for the detection of causal mechanisms linking the mobilization of law by non-state actors with increased involvement of courts in climate change policy debates. In doing so, it will offer an innovation: a sociological-institutionalist explanation of judicialization. This means moving beyond analyses of political and legal structures to look at the significance of the dynamics and discourses of different civil society groups and the influence they have on court-made policy from the bottom-up.

I will provide an account that complements the existing literature's tendency to focus on a) judicial institutional design (e.g. scope of judicial review), b) judicial behaviour (e.g. ideology of judges) and c) political determinants (e.g. tensions between judges and legislators) to explain variation in levels of judicialization. While these three elements have some explanatory power they alone cannot explain observed variation across the three countries. I hypothesize that the existence of non-state organizations willing to mobilize existing environmental legislation in the courts is a key condition for judicialization. I will explore how litigants can provide a route for courts to become engaged in climate change politics by framing their arguments in such a way that an issue becomes justiciable. I will test this across countries, across groups and across categories of legal cases within each country, for example legal cases addressing the causes of climate change (e.g. coal-powered energy, vehicle emissions regulation) and those considering impacts (e.g. habitat destruction).

More than ever before, as the impact of global warming on the planet, society and the economy becomes clear, empirical evidence is needed to help us understand how the causes and consequences of greenhouse gas emissions are regulated. I will look beyond disciplinary repertoires to examine non-traditional actors and policy-makers - environmental activists, corporations and courts - to offer a more holistic picture of climate change politics.

Planned Impact

The research questions I am addressing have wide contemporary policy relevance. They concern a broad range of stakeholders from government, industry and the third sector and is of public interest. At a well-attended public event on Climate Change Litigation I co-convened in April 2012 at the British Academy the range of practitioners present, from both the UK and abroad, as well as the level of debate suggested a real thirst for knowledge in this area. This study addresses specific questions of interest to these stakeholders: who influences climate change policy - why, how and with what impact?

Who will benefit from this research?
- Policy-makers with responsibility for shaping climate change policy in the countries under study. This includes lawyers and advisors working for Energy and Climate Change Committees in legislatures and in national and sub-state environment ministries (e.g. the Department of Energy and Climate Change in the UK, the Environment Protection Agency in the U.S. and provincial environment ministries in Canada).
- Members of the legal profession: particularly judges that might regularly adjudicate climate change cases and environmental lawyers. These users will be reached through the UK and Canadian Environmental Law Associations (UKELA and CELA) and the Environmental Law Alliance Worldwide (ELAW) US.
- Domestic and international NGOs campaigning on climate change, for example Greenpeace International (Amsterdam), Friends of the Earth (London), Oxfam (Oxford), Climate Action Network, Environmental Defense Fund (New York and Washington), Natural Resources Defense Council (New York and Washington D.C.), Friends of the Earth Canada (Ottawa).
- Corporate actors that have participated (as plaintiffs or defendants) in litigation under climate change legislation. This includes for example, renewable energy companies (e.g. wind farm companies, solar panel producers) as well as those extracting fossil fuels (e.g. Imperial Oil Resources Ventures Limited who are developing the tar sands in Canada which have been subject of litigation across all three countries under study)

How will they benefit from this research?
- Policy-makers will be interested in the ways in which policies are being interpreted by courts and in thinking about how future regulation may be enforced.
- Members of the judiciary and environmental lawyers will be able to draw on the experience of other jurisdictions to reflect on their own role in policy making and international best practice when it comes to legal and judicial reasoning on climate change.
- NGOs and corporate actors will gain a broader picture of who is mobilising the law, on what legal basis, their victories and losses in court decisions, and their impact on policy. This overview will help them see trends outside their own legal activities, which will in turn assist them in shaping their own strategies.

I understand the term "impact" in the sense of a dynamic engagement throughout the project rather than a single outcome at the end. This engagement is a two-way process, with non-academic communities providing input and receiving findings in a variety of ways. The project's advisory committee will play a key role. I have begun to approach both academic and non-academic users who I will meet with regularly to seek their input into the design of the research, to suggest research participants, to give advice on dissemination strategies and to collaborate on the development of a policy brief to communicate the findings widely. The user groups will also be engaged throughout the project through participation in research interviews and during the stakeholder workshop. I will also work with mentors in the law faculty at UCL and Oxford to seek opportunities to present at judicial training seminars. In addition to my own growing network, the Environment Institute at UCL has an extensive collection of contacts through which I would seek to recruit participants.

Publications

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Conant L (2017) Mobilizing European law in Journal of European Public Policy

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Setzer J (2019) Climate change litigation: A review of research on courts and litigants in climate governance in Wiley Interdisciplinary Reviews: Climate Change

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Vanhala L (2016) Framing Climate Change Loss and Damage in UNFCCC Negotiations in Global Environmental Politics

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Vanhala L (2017) Process Tracing in the Study of Environmental Politics in Global Environmental Politics

 
Description The research has found that mobilizing the law to address climate change is happening in many different ways with different goals in mind. Much of this is shaped by a) scientific evidence available on climate change impacts and uncertainty in attribution and b) the identity of the NGO mobilising the law, c) available resources, including relevant law, legal expertise and financial support. Unsurprisingly there was a much more vibrant and multifacted approach to this in the U.S. than in Canada and the UK. The research has also identified conceptual and empirical relationships between climate change litigation efforts at the national level and advocacy on climate change loss and damage and the intersection between human rights and climate change at the global level. Notably, it has found that there has been struggles over meaning of the idea of loss and damage in the climate change negotiations and that this partly relates to developed country fears about litigation and compensation.
Exploitation Route These findings can be taken forward by a) examining the impact of some of the more creative or longer-term litigation strategies in different jurisdiction and b) by looking at the institutional implications of frame contestation over the idea of loss and damage at the global level.
Sectors Environment,Government, Democracy and Justice

 
Description The Legal Team at Greenpeace International use this research as part of their legal skill sharing training sessions. I facilitated a workshop of practitioners on climate change loss and damage in June 2016 and one on climate change litigaiton in 2017. I am also acting as an advisor/learning partner to two grant-making foundations for their programme on use of the law by voluntary sector organisations.
First Year Of Impact 2013
Sector Environment,Government, Democracy and Justice
Impact Types Policy & public services

 
Description European Research Council Starting Grant
Amount € 1,471,000 (EUR)
Funding ID EU project 755753 - CCLAD 
Organisation European Research Council (ERC) 
Sector Public
Country European Union (EU)
Start 05/2018 
End 04/2023
 
Description UCL Global Engagement Strategy
Amount £3,450 (GBP)
Organisation University College London 
Sector Academic/University
Country United Kingdom
Start 07/2016 
End 01/2017
 
Description UCL Grand Challenges Equality and Justice
Amount £4,000 (GBP)
Organisation University College London 
Sector Academic/University
Country United Kingdom
Start 09/2017 
End 01/2018
 
Description Hosting Climate Change Loss and Damage Workshop 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Professional Practitioners
Results and Impact The workshop on Climate Change Lossa and Damage brought together academics and practitioners with the aim of enhancing a multidisciplinary understanding of the issue post-Paris. Those attending included: Dr Koko Warner of the UNFCCC Secretariat, previous Intergovernmental Panel on Climate Change (IPCC) author Dr Saleemul Huq, climate scientist and previous IPCC author Professor Myles Allen, lawyer and previous legal adviser to the Alliance of Small Island States (AOSIS) MJ Mace and political philosophers Professor Simon Caney and Professor Henry Shue. Representatives of other NGOs, law firms and organisations also attended, including: the UK Met Office, Oxfam, the Climate Justice Programme, the International Centre for Climate Change and Development in Bangladesh, E3G and Friends of the Earth. SPP Director, David Coen introduced the Workshop, withProfessor Mark Maslin (UCL), ProfessorJoanne Scott (UCL) and Dr Koko Warner chairing the three panel sessions, which consisted of presentations followed by
vigorous group discussions.
Year(s) Of Engagement Activity 2016
 
Description Learning partner role for philanthropic organisations 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach National
Primary Audience Supporters
Results and Impact I was commissioned with a partner to act as learning partner to a charitable foundation and NGO working in partnership that are interested in understanding the use of the law to address systemic change. This involved three workshops in 2017 with charitable funders, NGOs addressing disadvantage and practicing lawyers.
Year(s) Of Engagement Activity 2017
 
Description Oxford Workshop on Strategic Litigation 
Form Of Engagement Activity Participation in an activity, workshop or similar
Part Of Official Scheme? No
Geographic Reach International
Primary Audience Third sector organisations
Results and Impact A workshop hosted by Oxfam and Oxford University on Strategic Litigation
Year(s) Of Engagement Activity 2018