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Legal Opportunity Structures and the Paradox of Legal Mobilization by the Environmental Movement in the UK

Published online by Cambridge University Press:  01 January 2024

Lisa Vanhala
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Abstract

This article examines the strategic legal activity of the environmental movement in the United Kingdom over the past twenty years. Environmental non-governmental organizations (NGOs) have increasingly turned to the courts in pursuit of their policy goals, despite significant losses on substantive legal issues, difficulties gaining standing and high costs awarded against them under the “loser pays” system. This presents a puzzle: why does the movement continue to pursue legal action in the face of what activists claim is a hostile legal opportunity structure (LOS)? This study explores this seeming paradox using a single-country, cross-temporal comparative approach, an original dataset of legal cases taken by NGOs as well as qualitative case studies of strategic litigation. It highlights the agency the movement exhibits within opportunity structures and suggests that NGOs that use litigation are able to highlight the failings of the existing system and improve future access to justice for themselves and other groups.

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Law & Society Review , Volume 46 , Issue 3 , September 2012 , pp. 523 - 556
Copyright
© 2012 Law and Society Association.

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Footnotes

I am indebted to the Journal's four anonymous reviewers and the editors for their comments which greatly improved this manuscript. I wish to thank the British Academy for generous financial assistance, which made its preparation possible. I would like to acknowledge Rachel Cichowski, Carol Day, David Erdos, Liz Fisher, Tim Hicks, Chris Hilson, Kathleen Hull, and Dan Kelemen for sharing their insights and providing helpful comments on earlier drafts. I am particularly grateful to Rob Abercrombie who read and commented on the manuscript numerous times and to Corin Throsby for her able editorial assistance. Thanks also to participants and audience members at the Law and Society Association Annual Meeting in Chicago, Il (May 27th to 30th, 2010), the International Political Science Association's Comparative Judicial Studies Group Meeting in Bologna, Italy (June 21st to 23rd, 2010), the Role of Courts in a Democracy Workshop at Oxford University (Feb 10th and 11th 2010), the Oxford Environmental Law Discussion Group (Feb 22nd 2011), the Workshop on Law, Rights and Mobilization in a Multi-level Europe in Onati, Spain (June 16th–17th, 2011) and the UCL Department of Political Science Departmental Seminar for helpful comments. Thank you to Sarah Wilkins Laflamme, Nehal Panchamia and Asma Vranaki for their excellent research assistance.

References

References

Alter, Karen, & Vargas, Jeannette (2000) “Explaining Variation in the Use of European Litigation Strategies: European Community Law and British Gender Equality Policy,” 33 Comparative Political Studies 452–482.CrossRefGoogle Scholar
Andersen, Ellen Ann (2005) Out of the Closets and Into the Courts: Legal Opportunity Structure and Gay Rights Litigation. Ann Arbor, MI: Univ. of Michigan Press.Google Scholar
Barnes, Jeb (2009) “In Defense of Asbestos Tort Litigation: Rethinking Legal Process Analysis in a World of Uncertainty, Second Bests, and Shared Policy-Making Responsibility,” 34 Law & Social Inquiry 5–29.CrossRefGoogle Scholar
Börzel, Tanja (2006) “Participation through Law Enforcement: The Case of the European Union,” 39 Comparative Political Studies 128–152.CrossRefGoogle Scholar
Brooke, Lord Justice (2006) “Environmental Justice: The Cost Barrier,” 18 J. of Environmental Law 341–356.CrossRefGoogle Scholar
Burns, William, & Osofsky, Hari, eds. (2009) Adjudicating Climate Change: State, National and International Approaches. New York: Cambridge Univ. Press.CrossRefGoogle Scholar
Capacity Global (2003) Using the Law: Barriers and Opportunities for Environmental Justice. London: Capacity Global.Google Scholar
Cichowski, Rachel (2007) The European Court and Civil Society: Litigation, Mobilization and Governance. Cambridge: Cambridge Univ. Press.CrossRefGoogle Scholar
Cichowski, Rachel, & Stone Sweet, Alec (2003) “Participation, Representative Democracy, and the Courts,” in Bruce, E. Cain, Dalton, Russell J., & Scarrow, Susan E., eds., Democracy Transformed? Expanding Political Opportunities in Advanced Industrial Democracies. Oxford: Oxford Univ. Press.Google Scholar
ClientEarth (2009) Annual Trustees Report. London: Client Earth.Google Scholar
ClientEarth (2010) Annual Trustees Report. London: Client Earth.Google Scholar
Coglianese, Cary (1996) “Litigating within Relationships: Disputes and Disturbance in the Regulatory Process,” 30 Law & Society Rev. 735–766.CrossRefGoogle Scholar
Cole, Luke, & Foster, Sheila (2001) From the Ground Up: Environmental Racism and the Rise of the Environmental Justice Movement. New York: New York Univ. Press.Google Scholar
De Sadeleer, Nicolas, Roller, Gerhard, & Dross, Miriam (2005) Access to Justice in Environmental Matters and the Role of NGOs: Empirical Findings and Legal Appraisal. Groningen, NL: Europa Law Publishing.Google Scholar
Dotan, Yoav, & Hofnung, Menachem (2001) “Interest Groups in the Israeli High Court of Justice: Measuring Success in Litigation and in Out-of-Court Settlements,” 23 Law and Policy 1–27.CrossRefGoogle Scholar
Eckstein, Harry (1975) “Case Study and Theory in Political Science,” in Greenstein, Fred, & Polsby, Nelson, eds., Handbook of Political Science. Reading, MA: Addison-Wesley.Google Scholar
Environmental Justice Project (2003) Environmental Justice. London: The Environmental Justice Project.Google Scholar
Environmental Law Foundation (2009) Costs Barriers to Environmental Justice. London: Environmental Law Foundation.Google Scholar
Epp, Charles (1998) The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago, IL: Univ. of Chicago Press.CrossRefGoogle Scholar
Epp, Charles (2009) Making Rights Real: Activists, Bureaucrats and the Creation of the Legalistic State. Chicago, IL: Chicago Univ. Press.CrossRefGoogle Scholar
Evans Case, Rhona, & Givens, Terri (2010) “Re-engineering Legal Opportunity Structures in the European Union? The Starting Line Group and the Politics of the Racial Equality Directive,” 48 J. of Common Market Studies 221–241.CrossRefGoogle Scholar
Ewick, Patricia, & Silbey, Susan (1998) The Common Place of Law: Stories from Everyday Life. Chicago, IL: Chicago Univ. Press.CrossRefGoogle Scholar
Friends of the Earth Scotland (2011) Tipping the Scales: Complying with the Aarhus Convention on Access to Justice. Edinburgh: FoE Scotland.Google Scholar
Fritsvold, Erik (2009) “Under the Law: Legal Consciousness and Radical Environmental Activism,” 34 Law & Social Inquiry 799–824.CrossRefGoogle Scholar
Galanter, Marc (1974) “Why the ‘Haves’ Come out Ahead: Speculations on the Limits of Legal Change,” 9 Law & Society Rev. 95–160.CrossRefGoogle Scholar
Goodwin, Jeff, & Jasper, James (1999) “Caught in a Winding, Snarling Vine: The Structural Bias of Political Process Theory,” 14 Sociological Forum 27–54.CrossRefGoogle Scholar
Heyer, Katharina (2002) “The ADA on the Road: Disability Rights in Germany,” 27 Law & Social Inquiry 723–762.CrossRefGoogle Scholar
Hilson, Chris (2002) “New Social Movements: The Role of Legal Opportunity,” 9 J. of European Public Policy 238–255.CrossRefGoogle Scholar
Hilson, Christopher J., & Cram, Ian (1996) “Judicial Review and Environmental Law—Is There a Coherent View of Standing?,” 16 Legal Studies 1–26.CrossRefGoogle Scholar
Hiskes, Richard (2009) The Human Right to a Green Future: Environmental Rights and Intergenerational Justice. New York: Cambridge Univ. Press.Google Scholar
Holzmeyer, Cheryl (2009) “Human Rights in an Era of Neoliberal Globalization: The Alien Tort Claims Act and Grassroots Mobilization in Doe v. Unocal,” 43 Law & Society Rev. 271–304.CrossRefGoogle Scholar
Keck, Margaret, & Sikkink, Kathryn (1998) Activists beyond Borders: Advocacy Networks in International Politics. Ithaca, NY: Cornell Univ. Press.Google Scholar
Keck, Thomas (2009) “Beyond Backlash: Assessing the Impact of Judicial Decisions on LGBT Rights,” 43 Law & Society Rev. 151–186.CrossRefGoogle Scholar
Kelemen, R. Daniel (2011) Eurolegalism: The Transformation of Law and Regulation in the European Union. Cambridge, MA: Harvard Univ. Press.CrossRefGoogle Scholar
Kelemen, R. Daniel, & Vogel, David (2010) “Trading Places: The Role of the United States and the European Union in International Environmental Politics,” 43 Comparative Political Studies 427–456.CrossRefGoogle Scholar
Low, Nicholas, & Gleeson, Brendan (1998) Justice, Society and Nature: An Exploration of Political Ecology. London: Routledge.Google Scholar
Mandel, Michael (1994) The Charter of Rights and the Legalization of Politics in Canada. Toronto: Thompson.Google Scholar
Manfredi, Christopher (2005) Feminist Activism in the Supreme Court: Legal Mobilization and the Women's Legal Education and Action Fund. Vancouver, BC: Univ. of British Columbia Press.Google Scholar
Marshall, Anna-Maria (2003) “Injustice frames, legality, and the everyday construction of sexual harassment,” 28 Law & Social Inquiry 659–689.CrossRefGoogle Scholar
McCann, Michael (1994) Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization. Chicago, IL: Univ. of Chicago Press.Google Scholar
McCann, Michael, & Silverstein, Helena (1998) “Rethinking law's ‘allurements’: A relational analysis of social movement lawyers in the United States,” in Sarat, Austin, & Scheingold, Stuart, eds., Cause Lawyering: Political Commitments and Professional Responsibilities. New York: Oxford Univ. Press.Google Scholar
McCormick, John (2001) Environmental Policy in the European Union. Basingstoke: Palgrave.CrossRefGoogle Scholar
Michaels, Phil (2004) “The price of protest,” The Guardian, Wednesday 23 June 2004.Google Scholar
Milieu Environmental Law and Policy (2007) Measures on Access to Justice in Environmental Matters (Article 9(3)): Country Report for the United Kingdom. Brussels: Milieu Environmental Law and Policy.Google Scholar
Morag-Levine, Noga (2003) “Partners No More: Relational Transformation and the Turn to Litigation in Two Conservationist Organizations,” 37 Law & Society Rev. 457–510.CrossRefGoogle Scholar
Morton, F. L. & Allen, Avril (2001) “Feminists and the Courts: Measuring Success in Interest Group Litigation in Canada,” 34 Canadian J. of Political Science 55–84.CrossRefGoogle Scholar
Paris, Michael (2010) Framing Equal Opportunity: Law and the Politics of School Finance Reform. Stanford: Stanford Univ. Press.CrossRefGoogle Scholar
Pedriana, Nicholas (2006) “From Protective to Equal Treatment: Legal Framing Processes and Transformation of the Women's Movement in the 1960s,” 111 American J. of Sociology 1718–1761.CrossRefGoogle Scholar
Princen, Sebastiaan, & Kerremans, Bart (2008) “Opportunity Structures in the EU Multi-Level System,” 31 West European Politics 1129–1146.CrossRefGoogle Scholar
Rootes, Christopher (1992) “The New Politics and the New Social Movements: Accounting for British Exceptionalism,” 22 European J. of Political Research 171–292.CrossRefGoogle Scholar
Rootes, Christopher (2009) “Environmental NGOs and the Environmental Movement in England,” in Crowson, Nick, Hilton, Matthew, & McKay, James, eds., NGOs in Contemporary Britain: Non-state Actors in Society and Politics Since 1945. London: Palgrave Macmillan.Google Scholar
Rubin, Edward, & Feeley, Malcolm (2003) “Judicial Policy Making and Litigation Against the Government,” 5 Univ. of Pennsylvania Constitutional Law Rev. 617–664.Google Scholar
Scheingold, Stuart (1974) The Politics of Rights: Lawyers, Public Policy, and Social Change. New Haven, CT: Yale Univ. Press.Google Scholar
Schlosberg, David (2007) Defining Environmental Justice: Theories, Movements, and Nature. Oxford: Oxford Univ. Press.CrossRefGoogle Scholar
Schoenfeld, Heather (2010) “Mass Incarceration and the Paradox of Prison Conditions Litigation,” 44 Law & Society Rev. 731–768.CrossRefGoogle Scholar
Silverstein, Gordon (2009) Law's Allure: How Law Shapes, Constrains, Saves, and Kills Politics. New York: Cambridge Univ. Press.CrossRefGoogle Scholar
Soriano, Leonor Moral (2001) “Environmental ‘Wrongs’ and Environmental Rights: Challenging the Legal Reasoning of English Judges,” 13 Journal of Environmental Law 297–313.CrossRefGoogle Scholar
Stone, Christopher (1972) Should Trees Have Standing? Law, Morality and the Environment. New York: Oxford Univ. Press.Google Scholar
Stookes, Paul (2008) Public Involvement in Environmental Matters and the Funding Constraints in Securing Access to Justice. University of Hertfordshire: Unpublished PhD Thesis.Google Scholar
Tate, C. Neal, & Vallinder, Torbjorn (1995) The Global Expansion of Judicial Power. New York: New York Univ. Press.Google Scholar
Vanhala, Lisa (2011a) Making Rights a Reality? Disability Rights Activists and Legal Mobilization. New York: Cambridge Univ. Press.Google Scholar
Vanhala, Lisa (2011b) “Social Movements Lashing Back: Law, Social Change and Socio-legal Backlash in Canada,” 54 Studies in Law, Politics and Society 113–140.CrossRefGoogle Scholar
Wilson, Bruce, & Rodriguez Cordero, Juan Carlos (2006) “Legal Opportunity Structures and Social Movements: The Effects of Institutional Change on Costa Rican Politics,” 39 Comparative Political Studies 325–351.CrossRefGoogle Scholar
Working Group on Access to Environmental Justice (2010) Ensuring Access to Environmental Justice in England and Wales: Update Report. London: Working Group on Access to Environmental Justice.Google Scholar

Cases Cited

Aarhus Compliance Committee Draft Findings, ACCC/C/2008/33.Google Scholar
R (RSPB) v. Swale Borough Council [1991] 1 PLR 6.Google Scholar
Greenpeace Ltd. v. HM Inspectorate of Pollution No.2 [1993] EWCA Civ 9; [1994] 1 WLR 570, [1994] 4 All ER 329.Google Scholar
R (Friends of the Earth) v. Secretary of State for the Environment [1994] 2 CMLR 760.Google Scholar
R (RSPB) v. Secretary of State for the Environment [1995].Google Scholar
R (William Guy Watson) v. Secretary of State for Environment, and Transport and Regions and Ministry of Agriculture, Fisheries and Food [1998] EWHC Admin 737.Google Scholar
WWF-UK and RSPB v. Scottish Natural Heritage [1998] ScotCS 38 (27 October 1998).Google Scholar
R (Greenpeace) v. Secretary of State for Trade and Industry [1999] All ER (D) 1232.Google Scholar
R v. Secretary of State for Trade and Industry, ex parte Greenpeace Ltd. [1999] All ER (D) 1232.Google Scholar
R (Burkett) v. LB Hammersmith and Fulham [2004] EWCA (Civ) 1342.Google Scholar
R (Corner House Research) v. The Secretary of State for Trade & Industry [2005] EWCA Civ 192.Google Scholar
R (Lewes District Friends of the Earth Ltd & Ors) v. East Sussex County Council & Anor [2008] EWHC 1981 (Admin).Google Scholar
Garner v. Elmbridge Borough Council [2010] EWCA Civ 1006.Google Scholar
Edwards v. The Environment Agency [2010] UKSC 57.Google Scholar

Legislation Cited

The Birds Directive (Council Directive 79/409/EEC).Google Scholar
The Habitats Directive (Council Directive 92/43/EEC).Google Scholar
The Protection in Trade of Species of Wild Flora and Fauna Regulation (Council Regulation 338/97/EEC).Google Scholar
European Community (EC) Drinking Water Directive (Council Directive 98/83/EC).Google Scholar
UK Water Industry Act (WIA) 1991.Google Scholar