In the last couple of weeks we have seen campaigners in court. Not for direct action that has long pushed the boundaries of what is lawful, but on the ‘other side’, challenging authorities for inaction on environmental issues.
ClientEarth this week has again won a case against the UK Government for its failure to adequately deal with illegal levels of air pollution. The team of environmental lawyers first won a Supreme Court victory in 2015 against the UK government for its failure to take measures to ensure air quality met legal limits.
Greenpeace Nordic also recently announced that it is suing, with Nature & Youth, the Norwegian Government for allowing Statoil and other oil companies to expand oil drilling in the Artic (The People vs. Arctic Oil). Greenpeace lists three other campaigns that are using the legal system to challenge business and governments.
An article in the New York Times highlights a number of other cases where citizens are suing governments for failure to act on climate change. In 2015 Urgenda won a lawsuit against the Dutch Government for not doing enough to reduce greenhouse gas emissions.
This is not a new strategy for campaigners. Erin Brockovich built a successful lawsuit in California in 1993 against PG&E for contamination of drinking water. ClientEarth was set up in the UK by James Thornton, on the back of a long history of successful water pollution prosecutions in the US.
I am sure there are many more examples.
But why the recent rise of ‘legal activism’? What can help explain why campaigners are adopting legal strategies to bring about change?
These campaigns could signify a shift in the relationship between media and power. A legal strategy is not so reliant on media representation and I believe starts to challenge the asymmetric relationship between campaigners and the media (Gamson & Wolfsfeld, 1993). Legal action is not dependent on the media for validation and legitimisation (Gamson & Wolfsfield, 1993) and it is not the kind of activity that can easily be “marginalised, misrepresented or trivialised by the media.” (Kavada, 2016).
Such campaigns move on from the view of Rucht that social protest and campaigns are “outsiders vis-á-vis the institutionalized political game, having few means to get their voices heard and their activities seen” (Rucht , 2004: 25). Legal activities position campaigners on the inside, using the system and its institutions to achieve the outcomes they need. Like an inside ‘inside track’ (Hilder et al., 2007) of not just lobbying to influence power, but using the institutions of power itself to hold governments to account.
Taking a government to court is about a certain outcome, there is a clear win or lose at the end of the process. The practice of confronting established power relations is not being decided in communications (Castells, 2007) but in the courts. A legal strategy creates a chance to rewrite the law, or how it is interpreted and can have a bigger impact than traditional protests or petitions. As James Thornton, CEO of ClientEarth said in an interview in China Dialogue, “without the strategic use of law, environmental groups aren’t nearly as powerful as they could be” (Boyd, 2016).
“If people organise, build the right coalitions, and pursue the right argument and tactics, laws and lawyers can bite back, governments and Big Men can lose cases.” (Green, 2016: 111)
Legal strategies require significant financial resources and technical expertise. However, if cases are chosen carefully (ClientEarth focuses on issues where it is confident it can win) they can send a strong signal to citizens that power can be challenged and governments will be held to account. Expect to see more cases in court soon.
Castells, M., 2007. Communication, Power and Counter-power in the Network Society. International Journal of Communication, 1(1), p.29.
Gamson, W. & Wolfsfeld, G., 1993. Movements and Media as Interacting Systems. The Annals of the American Academy, 528(July), pp.114–125.
Green, D. 2016. How Change Happens. Oxford University Press: Oxford.
Hilder, P., Caulier-Grice, J. & Lalor, K., 2007. Contentious Citizens: Civi Society’s Role in Campaigning for Social Change, The Young Foundation.
Rucht, D., 2004. The quadruple “A”: Media strategies of protest movements since the 1960s. In W. Van de Donk et al., eds. Cyberprotest: New media, citizens and social movements. London and New York: Routledge, pp. 29–56.
Boyd, O., 2016. Civil Society Needed to Enforce Environmental Law. China Dialogue. Available at: https://www.chinadialogue.net/article/show/single/en/9324-Civil-society-needed-to-enforce-environmental-law.
Photo: David Holt, Flickr