Building a Critical Framework of Legal Climate Mobilization in the European Union

As global temperatures climb to ever greater heights, many from grassroots groups to governments and fossil multinationals have committed themselves to a green transition and a net-zero economy. However, ideas about how and how fast to bring about emissions reductions and how to structure a post-transition economy diverge widely, with the future of climate action being hotly debated not only in parliaments and international negotiations, but in the media, the streets, and the courtroom. Legal mobilization, a form of political mobilization through which non-state actors invoke legal norms to influence behavior, policy and public discourse, is emerging as an increasingly popular avenue for both civil society and corporate actors to participate in shaping the ambition and application of climate law. This is also the case in the European Union (EU). The EU is not only the fourth-largest emitter of carbon emissions worldwide, but has proclaimed its goal to become a global leader on climate action and the first carbon-neutral continent by 2050. Both the ambition of EU climate targets, and the global justice and human rights implications of specific EU climate measures have been challenged in legal mobilization before the EU Court of Justice (CJEU) and semi- and non-judicial mechanisms. Studies of legal mobilization often emphasize the emancipatory potential of using the law as a tool of political mobilization, especially for those actors who are otherwise excluded from or underrepresented in the political process. However, in practice powerful actors, too, engage in legal mobilization, and access to courts and semi-judicial mechanisms remains restricted through both legal requirements and material factors, such as financial and knowledge-based constraints and political pressures. Building on this discussion within the EU context, this paper builds an analytical framework to explore the question in which ways socio-economic and political inequalities are challenged, reproduced or exacerbated in legal climate mobilization in EU law. The paper first introduces a novel concept of “legal climate mobilization” which captures both climate-aligned and non-climate aligned mobilization across a range of avenues of mobilization. The paper then continues to apply this conceptual frame to empirical observations of the general trends in climate-related mobilization before EU institutions, including both case law of the CJEU, and alternative avenues for mobilization, such as complaints to the European Commission or the European Ombudsman. By capturing forms of legal mobilization other than litigation before the CJEU, the paper further contributes to developing existing literature on EU legal climate mobilization. The paper shows that despite the often lamented strict standing requirements before the CJEU, a wide and growing body of actors are engaging in legal climate mobilization across a variety of areas of EU law, often using creative strategies of mobilization. Clear differences emerge in the mobilization behaviour of different actors, with corporations resorting more frequently to litigation before the CJEU and civil society groups opting for alternative avenues, such as complaints to the EU Commission or European Citizens’ Initiatives.