Partners No More: Relational Transformation and the Turn to Litigation in Two Conservationist Organizations

The rise in litigation against administrative bodies by environmental and other political interest groups worldwide has been explained predominantly through the liberalization of standing doctrines. Under this explanation, termed here "the floodgate model," restrictive standing rules have dammed the flow of suits that groups were otherwise ready and eager to pursue. I examine this hypothesis by analyzing processes of institutional transformation in two conservationist organizations: the Sierra Club in the United States and the Society for the Protection of Nature in Israel (SPNI). Rather than an eagerness to embrace newly available litigation opportunities, as the "floodgate" model would predict, the groups' history reveals a gradual process of transformation marked by internal, largely intergenerational divisions between those who abhorred conflict with state institutions and those who saw such conflict as not only appropriate but necessary to the mission of the group. Furthermore, in contrast to the pluralist interactions that the "floodgate model" imagines, both groups' relations with pertinent agencies in earlier eras better accorded with the partnership-based corporatist paradigm. Sociolegal research has long indicated the importance of relational distance to the transformation of interpersonal disputes. I argue that, at the group level as well, the presence or absence of a (national) partnership-centered relationship determines propensities to bring political issues to court. As such, well beyond change in groups' legal capacity and resources, current increases in levels of political litigation suggest more fundamental transformations in the structure and meaning of relations between citizen groups and the state. The appearance of political interest groups as litigants in American courts has become so commonplace that it is easy to overlook the relative novelty of this legal-political phenomenon. Although some such groups have relied on litigation at least since the start of the twentieth century, it was only during the 1950s and 1960s that a broad spectrum of interests and a large number of political organizations turned to the courts (Epstein & Kobylka 1992; Koshner 1998). Several decades later, interest groups elsewhere in the world have now begun to follow suit, heralding a global judicialization of political disputes (Tate & Vallinder 1995). While this trend has been widely diagnosed, little research has focused on what accounts for such differences in the litigation propensity of groups over time. This study considers this issue by analyzing processes of institutional transformation in two conservationist organizations: the Sierra Club in the United States and the Society for the Protection of Nature in Israel (SPNI). The history of environmental interest group litigation in the United States is among the most evident examples of transformation in the salience of law and courts to the agenda of political groups. Until the 1960s, environmental lawsuits in America were, by and large, limited to nuisance disputes concerning pollution and other interferences with private rights; the practice of legal challenges by environmental groups to administrative policies, which would later become a central pillar of American environmental activism, did not then exist. Yet by the later 1960s, two categories of environmental organizations began to bring legal challenges of this type. The first was new groups, such as the Environmental Defense Fund (EDF) and Natural Resources Defense Council (NRDC), that were created in large part for the purpose of launching such legal mobilization. The second category consisted of longstanding conservationist organizations, such as the Sierra Club, that now added litigation strategies to their repertoire. A parallel pattern is evident in Israel, where environmental litigation on the part of interest groups was exceedingly rare until the 1990s. Behind the growth in levels of environmental lawsuits since then stand both the Israel Union for Environmental Defense, an NRDC-modeled group that was created in 1991 (Morag-Levine 2001), and SPNI, an established conservationist organization akin to the Sierra Club. …