New Energy Infrastructure as a Field of Strategic Litigation? How to Measure Strategic Elements of Energy Litigation

ENGOs are an important group of actors in litigation against wind turbines before German courts. Consistent with the idea of legal opportunity structures, species and nature protection law is most frequently cited as ground for legal action. However, previous research results on litigation against wind energy infrastructure show that species and nature concerns alone cannot explain why ENGOs take legal action in some cases but not in others. Instead, local political and administrative processes are relevant in explaining the occurrence of lawsuits, with citizens’ initiatives, political parties, and local communities being central actors for the mobilization of ENGOs. Our paper aims to gain a further understanding of why ENGOs take legal action and what their underlying motives are. We therefore ask: Is energy litigation a field of political contestation? For this purpose, we empirically analyze cases of energy litigation in the German states of Hesse and North-Rhine Westphalia, drawing on an analytical framework to differentiate politically motivated strategic from case-related complaints initially developed in the context of climate litigation. The framework measures elements of strategic litigation along three dimensions: strategic agency, strategic design, and public impact objective. Our results underline the importance of the agency dimension, with actors differing significantly from climate change litigation. Furthermore, our paper provides important insights on how legal action is used as an instrument of interest contestation in political conflicts related to energy transition – both out of fundamental opposition toward the latter as well as to reconcile wind energy expansion and biodiversity preservation.