Reactive Climate Litigation: An Analytical Framework for the Criminal Prosecution of Climate Activists

Abstract

Among the various types of legal activism, a distinction can be made between proactive and reactive litigation. This distinction hinges on who initiates the legal action: proactive litigation is initiated by plaintiffs, while reactive litigation occurs when the state starts a criminal prosecution in response to activism or dissent. While proactive strategic cases have been documented, reactive criminal trials involving activists remain understudied, especially in legal scholarship. In this article, an analytical framework that mobilizes the concepts of reactive litigation and judicial opportunity is created to systematically analyze 13 criminal prosecution cases relating to climate activism. The analysis will be based on four key elements to highlight the trends that can be observed: (i) the type and targets of the protest action, (ii) the charges brought against the defendant, (iii) the defences mobilized in court, and (iv) the outcomes of the criminal proceedings. This article finds that cross-analysis of the variables across four jurisdictions not only shows the relevance of studying the prosecution of activists as a growing and pressing phenomenon around the world but also provides insight into the trends observed in reactive climate litigation.