Strategic Climate Litigation’s Direct and Indirect Consequences for Democracies

Introduction

Sharply increasing strategic climate litigation (SCL) is a legal and social fact. It has the potential to influence the democratic process at a time when democracy and its safeguards are already widely in decline.

Nature of Climate Litigation

As with other forms of strategic litigation, climate litigation involves many actors, including NGOs, media, and politicians. It has many nuanced and indirect consequences beyond its direct legal effects, such as:

• Creating authoritative legal narratives
• Framing perceptions
• Fostering cooperation
• ‘Legalising’ the political debate

However, because of the particular nature of the climate emergency, as a global, scientifically certain existential threat to humanity, SCL is an extreme case of strategic litigation, both in quantity and in quality.

Socioeconomic Changes

As a sharply growing phenomenon, SCL aims for socioeconomic changes in response to the climate emergency as:

1. A truly global collective action problem
2. Increased by structurally inadequate political responses
3. Affecting those most who do not (yet) have political power

It is also distinct in its reliance on:

4. Arguments based on non-binding international norms (e.g., in the Paris Agreement)
5. Complex science with uncertain legal effects (litigants: climate science; defendants: carbon capture technology)

Contribution of LitDem

LitDem breaks new ground by providing the missing theoretical framework that captures not only the direct legal but also the indirect non-legal consequences of SCL for the democratic process in times of societal tensions and democratic decline. It provides greatly needed guidance to involved actors.

Methodology

Based on qualitative multi-method studies, including systematic content analysis, doctrinal analysis, and interviews, of all SCL in four national and two European jurisdictions (DE, FR, NL, UK, EU, ECHR), it offers a grounded conceptual understanding of the democratic implications of rapidly growing SCL.

Research Questions

It answers the questions:

• How does SCL affect the democratic process?
• How could its (neglected) democratic potential be realised?