Coproducing the Endangered Polar Bear: Science, Climate Change, and Legal Mobilization

• DOI: http://doi.org/10.1111/lapo.12144
• Author: Lisa Vanhala
• Date: 01 April 2020
• Published date: 01 April 2020

Coproducing the Endangered Polar Bear: Science,

Climate Change, and Legal Mobilization

LISA VANHALA

Applying insights from science and technology studies about the “coproduction” of science and

sociopolitical order to research on legal mobilization yields important theoretical insights.

Using the polar bear petition campaign by the Center for Biological Diversity as an illustrative

case, this article shows how this protracted legal campaign around protection of the polar bear

and its habitat opened up new legal opportunities for those advocating for the regulation of car-

bon emissions, mandated state-sponsored generation of climate science, legally constructed the

polar bear as “endangered,” and helped to shape the priorities of the nongovernmental organi-

zation itself.

I. INTRODUCTION

It is now abundantly clear that national courts are one arena in which battles about pol-

icy responses to climate change are being waged (Burns and Osofsky 2009; Marshall and

Sterett 2019; Setzer and Vanhala 2019). Legal cases such as the 2007 US Supreme Court

decision in Massachusetts v EPA, in which a number of US states and several cites

brought suit against the Environmental Protection Agency (EPA) to force the agency to

regulate greenhouse gases as a pollutant, and the Urgenda (2015) decision in the Nether-

lands in which the Urgenda Foundation won a legal case to compel the state to take

more effective action to address climate change, are just two examples among myriad

high-profile litigation campaigns. Both cases garnered significant public and media inter-

est, shaped the regulatory landscape, catalyzed nongovernmental organization (NGO)

and philanthropic interest in litigation as a potential tactic to address global warming,

and sparked scholarly interest and analysis (Fisher 2013; Setzer and Vanhala 2019). In

addition to these high-profile cases, Kim Bouwer (2018) argues that the concept of cli-

mate change litigation should be expanded to include less visible forms of climate change

I would like to thank the journal’s editor and anonymous reviewers for their thoughtful comments, which

greatly helped to improve the manuscript. I am grateful to interviewees for sharing their knowledge and

insights with me. I would also like to thank participants at the workshop Regulating Climate Change: Gover-

nance and Legal Mobilization, IISL, On˜ati, Spain, July 27–28, 2017. Thanks to Friederike Hartz, whose won-

derful research assistance helped to refine the article at a crucial stage. I would like to acknowledge the

financial support that made this research possible, including an ESRC Future Research Leaders Fellowship,

grant number ES/K008153/1, and a European Research Council Starting Grant under the European Union’s

Horizon 2020 Research and Innovation Programme, Grant Agreement number 755753.O.

Address correspondence to: Lisa Vanhala, University College London—Political Science, 29-31, Tavistock

Square, London WC1H 9QU, United Kingdom of Great Britain and Northern Ireland. Email: l.vanhala@ucl.

ac.uk.

LAW & POLICY, Vol. 42, No. 2, April 2020

©2020 The Author.

Law & Policy published by University of Denver and Wiley Periodicals LLC.

ISSN 0265-8240

This is an open access article under the terms of the Creative Commons Attribution License, which permits

use, distribution and reproduction in any medium, provided the original work is properly cited.

doi: 10.1111/lapo.12144

litigation such as legal cases in lower courts or relying on private law. However, what

the legal literature on climate change litigation tends to pay less attention to—whether it

is looking at high-profile or more run-of-the-mill cases—is the sources of legal cases or

the “support structure” for climate change litigation (Epp 1998). Who are the litigants

bringing climate change cases? Why are they bringing these cases? What do they achieve

when they mobilize the law? By shifting focus to the agents that mobilize the law, we can

better understand why some issues and constituencies are brought before the courts

while others are not. We can also contribute to an emerging understanding of the many

and varied impacts of climate change litigation (Keele 2018; Marshall and Sterett 2019;

Setzer and Vanhala 2019).

In two key ways, an emerging interdisciplinary field of research on climate change liti-

gation offers a useful complement to the existing literature on the topic, which until

recently has tended to focus on legal questions, such as the causes of action and argu-

ments about standing (e.g., Preston 2009), or on the relationship between regulation,

governance, and litigation (e.g., Vanhala 2013; Peel and Osofsky 2015; Setzer and Ban-

galore 2017). First, the sociolegal literature on climate change litigation has highlighted

the advantages of decentering the analysis of law (Haines and Reichman 2008; Vanhala

and Hilson 2013) and has sought to understand the role and impact of a range of actors

associated with climate change litigation, including climate activists in criminal trials

(Doherty and Hayes 2014; Hayes 2013), the fossil fuel divestment movement (Franta

2017), and climate denial groups (Ley 2018). Yet we have less of an understanding of

why organizations whose missions might at first glance seem remote from climate

change litigation become involved in these legal cases and what happens when they

do. This article sheds light on how and why certain types of environmental organizations

might mobilize the law to address climate change.

Second, the relationship between climate litigation and science is an area that has been

identified as ripe for further study (Setzer and Vanhala 2019). Climate science has been

shown to play a critical role in determining whether litigants have standing to sue (as in

Massachusetts v. EPA) and in substantiating claims that a defendant’s actions have cau-

sed (or will cause) plaintiffs alleged harm (as in Urgenda). Marjanac and Patton (2018)

explore how, when drafting climate change litigation, lawyers can draw on scientific

developments in “attribution science" that link the sources of greenhouse gas (GHG)

emissions with specific climate-related harms. They also consider how this knowledge

might alter the legal landscape. In other cases, science might not be necessary for the res-

olution of the dispute itself, but the lawsuit might seek to affirm or undermine the cen-

trality of science in decision-making processes (Setzer and Vanhala 2019). Yet, what has

been overlooked in this literature is how courts—when beckoned to do so by litigants—

can mandate the production of climate change-related science. This article shows that

the production of climate science can be an important “output” of the legal mobilization

process as well as an “input.”

This article seeks to connect these two areas of study by bridging research on legal

mobilization theory on the one hand and understandings of the “coproduction of sci-

ence” in the field of science and technology studies (STS) on the other. Scholars develop-

ing the idea of “coproduction” have shown that the process of knowledge production

can play an important role in constituting social order. This process involves epistemic

communities, policy networks, political actors, and (at times) courts in defining what

sound science is, who can produce it, and how to assess and deploy it. The notion of

coproduction also looks at how science shapes our understanding of policy and legal

problems. By bringing an understanding of the recursive nature of “coproduction” pro-

cesses to our research on legal mobilization, we are better able to account for the full

©2020 The Author.

Law & Policy published by University of Denver and Wiley Periodicals LLC.

106 LAW & POLICY April 2020