'Subtle Success in English Climate Litigation' - Kim Bouwer (Durham Uni)
A flood of global climate cases remain in the courts and the news, as activist litigators successfully challenge governments (and increasingly corporates) for failures in mitigation ambition. These litigation campaigns are viewed as successful and supportive of climate activists’ goals, as governments are ordered to revise and strengthen their mitigation plans and challenges to projects to build high-emitting infrastructure stymie development plans. The picture in the UK is very different, and can be seen largely as one of failure. At present the field is dominated by mainly public law challenges to consents for high-emitting infrastructure, most of which are dismissed.
This paper draws on social movement theory to examine English climate litigation in the context of activism associated with the challenged projects. Using fracking as a case study, the paper argues that the litigation and activism campaign around fracking demonstrates a use of political-legal opportunities to achieve a subtle success through attrition, rather than ‘hit the target’ cases that are seen in other jurisdictions. It suggests that this approach more consistent with English legal culture, but queries whether it is less vulnerable to political changes.