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This article examines the strategic legal activity of the environmental movement in the United Kingdom over the past twenty years. Environmental non-governmental organizations (NGOs) have increasingly turned to the courts in pursuit of their policy goals, despite significant losses on substantive legal issues, difficulties gaining standing and high costs awarded against them under the "loser pays" system. This presents a puzzle: why does the movement continue to pursue legal action in the face of what activists claim is a hostile legal opportunity structure (LOS)? This study explores this seeming paradox using a single-country, cross-temporal comparative approach, an original dataset of legal cases taken by NGOs as well as qualitative case studies of strategic litigation. It highlights the agency the movement exhibits within opportunity structures and suggests that NGOs that use litigation are able to highlight the failings of the existing system and improve future access to justice for themselves and other groups.
Originally published in 1972, Christopher Stone's Should Trees Have Standing? served as a rallying cry for the then budding environmental movement in the United States. It launched a debate about the legal rights of trees, oceans, animals and the environment among social activists and their adversaries. Since then, in following the logic of Stone's treatise that the environment cannot defend its own interests, non-governmental organizations (NGOs) have regularly stepped into the courts in the U.S. in order to enforce or expand environmental law. The extensive legal activity of a number of NGOs has been highlighted by those within the American movement: in 1988 the executive director of the Sierra Club Legal Defense Fund said that "[l]itigation is the most important thing the environmental movement has done over the past fifteen years" (quoted in Cole and Foster 2001: 30). The activity of the Sierra Club Legal Defense Fund, Earth Justice, the Natural Resources Defense Council and the Environmental Defense Fund and the policy impact has also been widely documented in existing sociolegal research (e.g., Coglianese 1996; Fritsvold 2009; Morag-Levine 2003).
NGOs elsewhere in the world have begun to follow suit, heralding what could arguably be coined a "global judicialization" of environmental disputes (Börzel 2006; Burns and Osofsky 2009; Cichowski 2007; Keck and Sikkink 1998; Morag-Levine 2003; Tate and Vallinder 1995). This article examines...