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

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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.