Changing climate law and governance: A multi‐level perspective

Abstract

AbstractAddressing the climate crisis involves changing climate law and governance. Climate litigation can facilitate this change. How and why does change occur? A multilevel perspective can assist in answering these questions. There are three levels: niches, regimes and landscapes. Actors in the protected spaces of niches develop ideas and legal arguments in climate litigation. Through a process characterised by the phases of emergence, diffusion, adaptation and cumulation, the ideas and arguments are incorporated by domestic courts' decisions into the law of the land. This process is facilitated by exogenous developments at the landscape level. The changing climate and the changing responses of the international community and international law exert contextual pressure on domestic courts' decision‐making. The combined pressures from the niche and landscape levels create tensions in the regime, making it receptive to incorporate the novel ideas and arguments and change climate law and governance. Other actors in the regime respond to this change in the law. The legislature and executive, the private sector and legal profession, adjust their behaviours accordingly. In sum, there is regime change. This process of change is illustrated using the ideas and arguments of inter‐ and intra‐ generational equity.