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Regulating Climate Change: Governance and Legal Mobilization

  • 27 Jul 2017
  • 28 Jul 2017
  • Oñati

Coordinators: Anna-Maria Marshall. University of Illinois

Susan Sterett. Virginia Tech

The causes and consequences of climate change have demanded the attention of policy-makers at varying levels of political authority all over the world. The result has been a proliferation of treaties, legislation, regulations, and other policy instruments -- all designed both to mitigate climate change through managing activities that contribute to greenhouse gas emission, and to help communities adapt to the environmental degradation associated with changing environmental conditions.   These policies are often adopted at different levels, and may structure blame and responsibility differently.    Mitigation, includes regulating emissions, whether through markets or limits.  Adaptation can include large scale infrastructure such as levees and walls, or changes  in local practices  concerning vegetation growth or stormwater runoff, with regulatory structures that can include education and encouragement more than blame or rules.  This workshop will address both mitigation and adaptation, through the lens of soociolegal governance. This workshop invites scholars to analyze legal mobilization (1) through litigation; (2) through local and regional governance; (3) through the variable expertise taken as relevant to making decisions, including  data analytics expertise and  law. The participants in this workshop will develop legal mobilization and governance approaches to the socio-legal study of climate change.

First, litigation has been described as a distinguishing characteristic of United States governance and yet the rise of the judiciary worldwide also invites us to ask where and how courts organize the expertise relevant to mitigation and adaptation.  The approaches in the United States and Europe are embedded the different governance frameworks for each: while litigation is a significant form of governance throughout the world, and familiar to sociolegal scholars, structures vary in how much they rely upon rules and courts, or adversarial legalism, in governing.  A distinctive sociolegal approach draws upon legal mobilization:  the actors, organizations, and institutions that rely on law to resolve disputes, to set the limits of political authority, and to define problems. By concentrating on actors and institutions, legal mobilization approaches ask how the law works, thus opening up avenues of empirical research that can address the role of culture, politics, and social structure. Who are the parties to such litigation, and what are  their goals and their strategies inside the courtroom and out? In asking actors what their goals are, or in tracking how media report litigation, scholars can reach beyond the instrumental outcomes of litigation to address how actors use litigation to, for example, educate the public about the scope of the debate, to animate a story, or to question responsibility.  Litigation also frames problems in particular ways; the rise of human rights as a way of explaining problems invites analyzing how actors frame climate change as a matter of technical problem solving, or of human rights, for example. 

Second, litigation does not exhaust how law is deployed, nor is knowledge from the judiciary or actors who bring lawsuits the only form of knowledge about law and change.  The workshop also  invites rethinking what we  mean by law as a form of governance. In addition to formal policies, new forms of governance are emerging that offer the hope of addressing the challenges associated with multiscalar problems like climate change. Scholars are grappling with the declining significance of command and control systems of regulation given the decline in state resources for enforcement and the declining belief in the effectiveness of command and control. In place of such regulations, new forms of governance depend on stakeholders to come together to develop environmental goals, standards for performance, and best management practices that might mitigate or contribute to adapting to climate change effects.  In place of punishment,  stakeholders design mechanisms to hold each other accountable when they fail to meet the requisite standards. While these approaches to environmental governance eschew formal legal rules, they often depend on "the shadow of the law" as one of those mechanisms providing accountability. Lawsuits can be used to enforce the terms of mutual agreements setting performance standards or goals. Even more than that, the state's involvement in the development of these agreements, as well as the public-private relationships the develop these standards, create policy instruments whose formal legal status may be ambiguous but that have similar effects as legal rules.

Next, many "smart" cities hope that governance mechanisms deploying data analytics will promote improvements in setting priorities, making more informed decisions, and choosing where and how to enforce the law, including in areas concerning infrastructure, housing, flood control, all relevant to both mitigation and adaptation.  New governance mechanisms rely heavily on monitoring behavior, often through the data that such monitoring produces. Some hope that accumulating and interpreting data can eplace politics,  or legal regulation. In these regimes, information and evidence will guide policy-makers to the right decisions . This model of governance nevertheless raises new questions - about how problems are identified and framed and about how decisions are made about what data to collect. In addition, to the extent that new, evidence-based policies require compliance, the conditions giving rise to compliance are likely to include law. Furthermore, civil society groups have mobilized concerning equity and privacy in the new data analytics, raising questions about how data are produced and used.  Organizations ask questions and deploy data in legally dense environments.  Data collection using new tools may change the expertise deployed in deciding what to do; we know little about how and where that happens, or how the legal environments shape the questions cities ask or the data they collect.  

This workshop will bring together an international group of scholars from a variety of disciplines to explore the legal mobilization and governance approaches to mitigation and adaptation to climate change. Their work will contribute to our understanding of climate change law and policy by focusing greater attention on legal institutions and actors. In addition, the study of climate change will help develop our models of legal mobilization. The comparative analysis undertaken in this workshop will allow theorizing judicial power in an era called one of 'juristocracy,' social movement strategies, cultural diffusion, and multi-scale governance
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