Shaping the Structure of Legal Opportunities: Environmental NGOs Bringing International Environmental Procedural Rights Back Home

• DOI: http://doi.org/10.1111/lapo.12093
• Published date: 01 January 2018
• Date: 01 January 2018
• Author: Lisa Vanhala

Shaping the Structure of Legal Opportunities:

Environmental NGOs Bringing International

Environmental Procedural Rights Back Home

LISA VANHALA

Research on legal opportunity structures has focused on how existing law, standing rules, and

the costs of litigation shape the likelihood that social movement groups will mobilize the law. Yet

there has been relatively little research on how and why legal opportunity structures change over

time. This article focuses on a case study of the mobilization of procedural environmental rights

contained within the Aarhus Convention. It addresses the following empirical puzzle: how did

rights that were designed to help Eastern Europeans achieve environmental democracy

eventually contribute to a reshaping of the structure of legal opportunities in Britain? Through a

two-step historical process-tracing analysis that relies on a social constructivist theoretical

approach, this research shows that environmental groups mobilized Aarhus rights in a number of

ways and across different judicial venues, resulting in an evolution over time of the meaning of

access to justice so that it included being “not prohibitively expensive.” This research builds on

previous work to show that civil society agents are not passive agents situated within legal

opportunity structures but instead are strategic actors who can develop and shape access to

justice through policy entrepreneurialism and litigation.

I. INTRODUCTION

In the late 1990s, the UK government was involved in negotiating and drafting a new

international environmental treaty, the United Nations Convention on Access to Infor-

mation, Public Participation in Decision Making, and Access to Justice in Environmental

Matters. Known as the Aarhus Convention for the city in which it was signed in 1998, the

treaty entered into force in 2001. The convention’s signatories sought to extend proce-

dural environmental rights—the right to participate in decision making, the right to

access information, and the right to access justice on environmental issues—to citizens

Many thanks to the journal and special issue editors and anonymous reviewers for their insightful and con-

structive comments. I would like to thank Rob Abercrombie, Carolin Huebner, Dan Kelemen, Daniel Sab-

bagh, Marc Scarcelli, Kirsteen Shields, Corin Throsby, and Andy Whitford for comments on earlier versions

of this article. I would also like to thank participants and audience members at the Panel on “Environmental

Rights” at the APSA Annual Meeting in Chicago, August 28 to September 1, 2013; at the ECPR Joint Sessions

Workshop on “Legal Mobilisation: Europe in Comparative Perspective,” Mainz, March 11 to 16, 2013; at the

“Designing Environmental Protection: Law, Regulation and the Environment in the European Union” work-

shop at the UCL Environment Institute, May 12, 2012; and at the conference “L’

etat des droits: Pratique des

droits dans l’action publique,” Universit

e Paris 13-Villetaneuse et Sciences Po Paris, June 25 and 26, 2012.

Many thanks to Alice Lemkes for able research assistance. I am very grateful to the British Academy and the

ESRC (grant reference: ES/K008153/1) for generous funding that made this research possible.

Address correspondence to: Lisa Vanhala, University College London—Political Science, 29/30 Tavistock

Square, London WC1H 9QU, United Kingdom of Great Britain and Northern Ireland. Telephone: 144 (0)20

7679 4984; E-mail: L.Vanhala@ucl.ac.uk.

LAW & POLICY, Vol. 40, No. 1, January 2018 ISSN 0265-8240

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doi: 10.1111/lapo.12093

and nongovernmental organizations (NGOs) in forty-six European countries. At the

time, the UK government believed that it was largely compliant with the letter and the

spirit of the international law it was signing. Like their Western European counterparts,

UK elites largely understood this treaty as a way to help Central and Eastern European

countries (CEECs) to achieve environmental democracy in the wake of the fall of the Iron

Curtain. As such, the changes needed to bring the United Kingdom in line with the treaty,

and the costs of domestic compliance in the United Kingdom were seen as minimal.

However, fifteen years later, after a decade of critical scrutiny by international tribunals

and domestic courts, the United Kingdom was judged to be in systemic breach of the con-

vention’s provisions on access to justice. The United Kingdom has been the subject of

more complaints in the Aarhus Convention Compliance Committee (ACCC) than any

other country. NGOs have launched a series of legal campaigns concerning the govern-

ment’s failures on access to justice, and time and again international and domestic courts

have found that the obligation to ensure that legal procedures are not prohibitively expen-

sive has not been met. At the core of the problem are the ways in which the costs of litiga-

tion are structured. The cost rules in the English legal system mean that the losers in legal

cases have to bear their opponents’ costs. This is known as the “loser-pays” system. This

system makes litigation both expensive and risky; a party to a case does not know whether

it will be responsible for its opponent’s costs and what those costs will be up front. The

expense and uncertainty of this feature of the legal system were seen to be a major breach

of the Aarhus Convention.

How did this happen? The system that structures legal opportunities in Britain has

been significantly modified over recent years so as to make it easier and more affordable

for citizens and NGOs to challenge government decision making on environmental mat-

ters. How did procedural environmental rights that were designed to help Central and

Eastern Europeans achieve environmental democracy eventually contribute to a reshap-

ing of the structure of legal opportunities in Britain?

This article offers a two-step answer to this question by bridging legal opportunity

structure (LOS) theory with a social constructivist approach that examines what particu-

lar legal norms mean for different actors over time. First, the article unpacks the motiva-

tions of Western European political actors during the development and negotiation

phases of the Aarhus Convention. The research highlights the important role played by

NGOs in the early phases of the convention’s development. It also shows that the goal of

diffusing procedural democratic rights in the CEECs, the Caucasus, and Central Asia was

a priority for Western European states. The aim of Western European elites was to sup-

port social movement organizations in states emerging from authoritarianism. Second,

the article explores how the meaning of Aarhus legal norms changed through a series of

judicial interpretations of the Aarhus requirements offered by domestic and international

courts and tribunals, partly following the prompting of environmental NGOs. Environ-

mental groups and individual activists have harnessed the rights provisions of the Aarhus

Convention in extensive litigation efforts in England and Scotland. In doing so, they have

begun to use these rights—originally meant for others in the minds of signatories—to sig-

nificantly shape the structure of opportunities for contesting state decisions on environ-

mental policy back home. This article shows that these civil society agents are not simply

passive beneficiaries of rights but instead are strategic actors who can demand, develop,

and shape access to justice from the bottom up.

This case study helps to shed light on how and why LOSs evolve over time, sometimes

in unexpected ways. A rapidly growing literature has explored how the rules that shape

legal opportunities can play an important role in constraining or incentivizing civil society

use of the courts. The existence of relevant legal stock, the rules determining access to the

Vanhala SHAPING THE STRUCTURE OF LEGAL OPPORTUNITIES 111

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