Climate, courts and conflict resolution – climate change litigation as a tool for political contestation?

Climate change litigation is a worldwide growing phenomenon. The last decade has witnessed not only a geographic spread of lawsuits, but also a procedural and thematic diversification. Lawsuits are filed before constitutional and administrative courts against state authorities to demand more ambitious climate protection regulations or better enforcement based on national and international climate protection law as well as fundamental and human rights (e.g. young Germans against the German climate law). In addition, companies are increasingly being sued based on civil law in order to enforce claims for damages or injunctive relief pointing to the cumulative historical contribution of such companies to climate change (e.g. Milieudefensie against Royal Dutch Shell; Saúl Luciano Lliuya against RWE). Before this background, climate change litigation is recognized as being of increasing importance for climate governance and the development of climate protection and climate adaptation policies. The growing literature dealing with climate change litigation refers regularly to environmental non-governmental organizations (ENGOs) as strategic actors behind this development, interpreting these lawsuits as a tool for political participation and interest mediation. Existing research on legal mobilization by interest groups and social movements seems to provide fruitful theoretical approaches to explain climate change litigation and its meaning for political contestation on climate change policy. Nonetheless, the actual empirical involvement and role of ENGOs in climate change litigation has not been widely studied and is far from clear. Consequently, corresponding assumptions remain unspecific and partially speculative. For instance, it remains unclear as to what proportion lawsuits are actually filed by ENGOs, or whether and how ENGOs are involved in filing the lawsuit, when they do not act as plaintiffs themselves. It also remains an open question, which broader goals ENGOs pursue in supporting climate litigation. Against this backdrop, our study addresses the following research question: Which role do ENGOs actually play in climate change litigation? Referring to the concept of strategic litigation, we assume to find (1) that an important number of lawsuits are pushed and initiated by ENGOs, regardless of whether they are officially involved or not, and (2) that the specific legal cases are not only filed to resolve a certain legal dispute before a court, but also to influence the public discourse on climate change and its governance. To answer our research question, our paper seeks to present in a first step existing research on climate change litigation on the one hand and on theoretical concepts of legal mobilization through environmental interest groups on the other. Building on that, we seek to present a theoretical systematization of climate change litigation from the perspective of policy-analysis. In a second step, a first empirical analysis of climate change litigation before German courts and the role of ENGOs is conducted. The German case is especially interesting, because of the particular dynamic growth of litigation activities during the last years. Finally, the paper reflects on the findings of the case study, and the potential for comparative research on litigation and political contestation through interest groups in climate policy.