THE ROLE OF CIVIL SOCIETY INSTITUTIONS IN THE FORMATION AND IMPLEMENTATION OF STATE CLIMATE POLICY

European Science Law THE ROLE OF CIVIL SOCIETY INSTITUTIONS IN THE FORMATION AND IMPLEMENTATION OF STATE CLIMATE POLICY Vasyl KOSTYTSKY Professor, Doctor of Legal Sciences, Academician of the National Academy of Legal Sciences of Ukraine, Professor at Taras Shevchenko National University of Kyiv, Kyiv, Ukraine ORCID ID: https://orcid.org/0000-0003-1692-9810 Viktor BOHUN Associate Professor, Candidate of Legal Sciences, Kyiv Institute of Intellectual Property and Law of the National University "Odesa Law Academy", Kyiv, Ukraine ORCID ID: orcid.org/0000-0001-9376-1957 Abstract. In the context of the growing weight and importance of civil society in developed countries its weight as a key actor in the formation and implementation of climate policy is naturally increasing. The latter is becoming more and more decentralized, open, accessible for monitoring and evaluation and is no longer perceived as an element of exclusively state activity, separated from the activities of the public. Civil society organizations, activists, and climate justice movements play an important role in global climate governance by informing the general public and representing marginalized and vulnerable populations. Citizens and their associations in different countries have become more active in expressing their concerns about the actions or rather inaction of states with regard to climate goals, carbon emissions reduction and fossil fuel subsidies. At the same time, the forms of expressing these opinions are becoming more and more organized, streamlined and systematic. Climate activism can be used as a channel through which the voice of civil society can be heard on how to overcome the climate crisis. Thanks to the active participation of civil society institutions at the international and national levels of governance, the phenomenon of multi-level climate policy is emerging; the latter is becoming polycentric and non-etatismic, gradually losing the features of monopolistic European Science Law state-centrism. Climate policy implemented at the level of governance closest to citizens and with their direct involvement will be more effective and inclusive, consistent with the principles of participatory democracy and a broader public consensus on current and future climate policy issues. Keywords: civil society, civil society institutions, climate policy, environmental policy, modernity of the state, ecological state, economic activity. Introduction An analysis of the participation of civil society institutions in the development and implementation of climate policy in the current environment demonstrates the unevenness of such participation which is determined by the varying degrees of development of the relevant civil society structures, the varying levels of openness of the relevant public authorities to influence by these institutions and numerous legal and extra-legal factors. Thus, the relatively weaker institutional capacity of individual states to implement proactive climate policy can be compensated by the activation of civil society institutions that can complement the capacity of states in this area by successfully collecting information on the state of the climate, promoting public education in this area, and even negotiating at the international level. In this way, soft administrative capacity can allow civil society institutions direct access to the highest levels of climate policy making and implementation. Such a scenario seems to be purely hypothetical for now but it is by no means impossible in practice which promises to raise the question of the limits of state sovereignty in the near future in connection with the intensification of horizontal governance relations and wider involvement of civil society institutions in them in the context of the development of a dialogue between the government and civil society institutions. State of the research of the problem. The current scientific literature clearly shows the growing role of non-governmental organizations, markets and civil society in general and their influence on the development and implementation of climate policy at all levels of government. In this regard, foreign legal scholarship is developing the concept of multi-level climate governance based on the principle of subsidiarity which prevents decision-making at only one level of public authority and the fact that the policy is implemented at inadequate territorial and institutional levels. The same principle implies the distribution of responsibilities between different levels of public authorities, with the provision of advisory and consultative powers and ensuring broad participation of all major stakeholders in the management of this area of public policy, through a continuous process of negotiation and the use of a set of participation mechanisms, which is essential for the further institutional and legal development of participatory democracy. These problems have been the subject of research by Ukrainian scholars H. Anisimova, A. Hetman, I. Karakash, V. Kostytsky, P. Kulynych, S. Kravchenko, M. Krasnova, N. Malysheva, S. Romanko and Yu. Shemshuchenko. European Science Law The purpose of the article is to research the prospects for expanding the participation of civil society and its constituent elements in the formation and implementation of the State climate policy. Summary of the main material. For supranational organizations, such as the European Commission or the European Parliament, common standards for sustainable development activities and accordingly guarantees of environmental and climate rights of individuals and society as a whole can be partially addressed through structural reform programs that aim to help governments and other public sector bodies build trust and confidence in the trajectory of modern life introduce best practices and inform long-term, high-quality policy decisions in the climate change. In addition, as the comparison of the state climate policy and the results of sociological studies of public opinion in this area demonstrates that there is a clear divergence between the positions of civil society institutions and states on climate change and how this problem should be addressed. The basis of this divergence is insufficient communication between citizens and state actors which sometimes even leads to a lack of public support for the processes of formulating and implementing the state’s climate policy. In order to increase support for new and existing climate change policies and initiatives and to ensure the protection of fundamental environmental and climate human rights, the state should make joint efforts to engage with the public in the formulation, implementation, enforcement and monitoring of climate policy. This will contribute to transparency and accountability in decision–making and can be an important factor in the formation of a climate inclusive society, i.e. a citizenry and society more involved in the formulation and implementation of climate policy than we see today. Public participation allows diverse ideas, perspectives, and values to influence policy formulation and implementation, making policies more effective and sustainable. Indeed, engaging the public in climate action initiatives can increase public awareness, understanding and ownership of the issues. It can also promote cooperation and collaboration between different sectors of civil society and other stakeholders leading to a more comprehensive and integrated approach to climate action. Therefore, the participation of civil society institutions is now the most important feature of a modern state [22] which in the face of current global challenges cannot but be an environmental state that is able to fulfill one of its main responsibilities to human beings and society – to guarantee the reality of the right to a favorable environment [23]. Obviously, it is crucial to prioritize public participation in efforts to combat climate change as this will help create a more sustainable future for all. These positions are currently encouraged and supported by the Office of the United Nations High Commissioner for Human Rights. The rules for such participation are mostly incorporated into environmental legislation at both national and international levels through the UN Sustainable Development Goals. Today, however, it is increasingly common to hear about the need to rethink and change existing formats of public participation in order to encourage closer cooperation between all stakeholders in environmental decision-making European Science Law processes including climate change. In particular, given the rise of global environmental protests including climate change-related civil disobedience more attention should be paid to how the public is involved in climate decision-making by sovereign states and what should be done to make such participation more effective and influential. In addition, the scientific literature uses the term “public participation” as a synonym for citizen participation and community participation [1, p. 216-224] as well as civil society institutions. At the same time, it is recognized that there are different types, forms and levels of participation that can be placed in the structures of interaction between the government and the public ranging from informing and listening, on the one hand, to making and implementing jointly agreed decisions, on the other [2]; these approaches should also include a dialogue between the state, civil society institutions and the individual in the form of debates, opportunities for analytical materials, discussions and hearings, including in the media, conferences and parliamentary hearings. An important aspect of the genuine participation of civil society institutions in the formulation and implementation of climate policy is the opportunity for the citizens involved to come to a common understanding of the problems and potential solutions, and at the same time to change their minds (if necessary) during the process instead of just exchanging or listening to other views [2]. Today, public participation in the development and implementation of state climate policy is an integral part of the general standards of a democratic society and international environmental law. Thus, a special requirement of the European community in the context of climate policy is the implementation of a multi-level climate and energy dialogue in accordance with national rules both at the stage of policy making and in the process of assessing progress (results) [3]. A number of developments at the regional level have also contributed to the further development and operationalization of the principle of public participation over the past 20 years. First, regional human rights courts have established a link between this principle and political and civil rights, especially the right to participation which are protected by international humanitarian law [4, p. 80]. In addition, this principle has been included in several regional environmental agreements. In this regard, the regional agreement that best defines and implements the principle of public participation is the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) which was adopted in 1998 under the auspices of the United Nations Economic Commission for Europe [5]. The arguments of politicians, public figures and, above all, scientists about the importance of civil society participation in the formulation and implementation of climate policy can be grouped into two broad groups. First, scholars argue that the participation of civil society institutions in public governance provides knowledge to increase the ability to solve problems which in turn leads to more effective and efficient policy implementation [19]. This role is especially important in countries with weak public administration systems. Here, the role of civil society organizations in identifying problems, collecting scientific European Science Law data and researching policies may come to the fore. The second group of arguments is based on the assertion that the participation of civil society institutions in the formulation and implementation of climate policy supports democratic values by promoting a more inclusive and informed form of public policy decision-making. This, in turn, can increase public support for climate policy and reduce political conflict. For example, non-state actors can provide a voice to underrepresented groups, thereby legitimizing and validating political decisions and improving the democratic quality of the state system [7, pp. 764-788]. These normative dimensions are often a component of broader discussions on community development and democratic deepening [6]. By insisting on mechanisms for monitoring and consultation with stakeholders, civil society institutions can also contribute to the establishment of formal accountability mechanisms in the governance system [8, pp. 439-449]. The alleged benefits of public participation in climate policy are related to legitimacy [9, pp. 116-125] and fairness of planning processes and results, greater community awareness of climate and related economic and social issues that are addressed by a plan or policy, i.e., training and empowerment, greater readiness for community cooperation and dialogue [10, pp. 399-415 ]. In particular, due to the climate crisis [11] and related needs for social transformation [12] public participation can be seen as a condition for success in transforming societies towards climate resilience and carbon neutrality through decision-making at various levels. For example, one of the main goals of the youth climate movement is to have much higher climate ambitions and faster mitigation actions [13, pp. 945-951; 14]. We can agree with the opinion on youth participation in the implementation of climate policy: without constant youth strikes and related calls for stronger climate measures, countries’ strategies to mitigate the effects of the climate crisis would hardly be so ambitious. For example, the decision of the Federal Constitutional Court of Germany that the country should provide clearer plans to reduce greenhouse gas emissions by 2030 instead of 2050 is considered a major victory for climate activists [15]. Similarly, it can be assumed that public participation in climate action will lead to more ambitious adaptation as people at risk and affected by climate impacts may be more interested in climate resilience and adaptation planning. In fact, climate policy characterized by the wide involvement of non-state actors acts as a driving force for the development of public-private partnerships in the business sector of those entities whose activities affect climate change [16, p. 297325]. This trend seems quite natural since non-governmental and non-profit organizations related to business such as chambers of commerce or trade associations are also organizational and institutional forms of civil society [17, p. 3665]. After all, climate change is a typical example of a complex multilevel environmental problem where mitigation and adaptation require a variety of actors, including business entities whose economic activity is affected by the climate problem [16, p. 297-325]. It is very important that the understanding and recognition of climate European Science Law change has become a fait accompli and is perceived as such by state and non-state actors [24], in many cases the role of civil society institutions, in particular business entities and their associations, has changed from that of critical agents that put pressure on the government to recognize the problem and implement policies to full partners of the state and business that develop and implement strategies without threatening the legitimacy of climate policy but as an additional factor in its success [18, p. 329346]. That is why, in recent years foreign legal scholarship has paid increasing attention to the interdependence between civil society and the state as well as to the institutional relations that develop at different levels of climate governance. The state may govern “through” civil society but this also reminds us that civil society is constantly translating, interpreting, and resisting state policies. Such considerations encourage us to move beyond the simple dual system of a powerful (but clumsy) state versus a powerless (but flexible and innovative) civil society. This suggests that while civil society institutions have become important actors in shaping and articulating climate change problems and solutions [19, pp. 365-387; 20, pp. 62-78;] their role and importance may be even more complex. In addition, researchers often compare the strength of civil society to the institutional capacity of the state in different countries, usually portraying countries such as Finland as having an extremely strong civil society, or countries such as Indonesia and to some extent India as having a much weaker civil society. Civil society actors’ understanding of their impact on climate change policy may not be strongest in countries where civil society institutions are well organized and resourced (Finland) but rather in those where the state’s administrative capacity in this area of public relations is weaker (Indonesia and India), leaving more room for civil society institutions to maneuver. Thus, when a new political problem enters the national political and administrative system from the global political field in states with weak administrative capacity civil society organizations take on some of the responsibilities that the state would perform in a country with greater administrative capacity. At the same time, the self-perception of civil society activists of their influence in this regard is a feature that is little known in the context of civil society climate policy, and even more so in the context of comparisons between the contexts of the Global South and the Global North [21, p. 413]. In this sense, strengthening civil society institutions will mean strengthening their compensatory role in relation to the participation of the state (weak or incapacitated) in the formation and implementation of modern climate policy. Thus, thanks to the active participation of civil society institutions at the international and national levels of governance, the phenomenon of multi-level climate policy is emerging; the latter is becoming polycentric and non-etatismic gradually losing the features of monopolistic state-centrism. According to many experts, it is believed that climate policy implemented at the level of governance closest to citizens and with the direct involvement of the latter will be more effective and inclusive, consistent with the principles of participatory democracy and a broader public consensus on current and future climate policy issues. European Science Law By influencing climate policy individual civil society actors can pursue their own short-term interests, presenting them as national interests. Therefore, a positive aspect of climate policy can be seen not just in the increased weight of civil society institutions in its formation and implementation but in its direction. Its direction should correlate with the national interests and goals enshrined in the relevant state strategic documents on climate change. Conclusions As civil society in developed countries grows in importance and significance, its role as a key actor in the development and implementation of climate policy naturally increases. The modern state is becoming more and more decentralized, open, accessible for monitoring and evaluation and is no longer perceived as an element of exclusively state activity, separated from the activities of the public which can be seen not only as a sign of the modern state but also as an essential element of an ecological state. At the same time, an analysis of the participation of civil society institutions in the development and implementation of climate policy in the current environment shows that such participation is uneven which is determined by the varying degrees of development of the relevant civil society structures, the varying levels of openness of the relevant public authorities to influence from these institutions, and numerous legal and extra-legal factors. Thus, the relatively weaker institutional capacity of individual states to implement proactive climate policy can be compensated by the activation of civil society institutions that can complement the capacity of states in this area by successfully collecting information on the state of the climate, promoting public education in this area and even negotiating at the international level. In other words, weaker administrative capacity allows for “direct” access of civil society institutions to the highest levels of climate policy making and implementation, but this conclusion seems to be purely hypothetical at the moment, but not impossible in practice which promises the realism of wider involvement of civil society institutions in climate policy making and implementation in the near future. References 1. Arnstein S.R. A ladder of citizen participation. J Am Plan Assoc. 1969. Vol. 35. P. 216-224. 2. European Urban Knowledge Network What is Public Participation? (2021) URL: https://www.eukn.eu/policy-labs/policy-lab-for-cypublic-participation-in-the-development-process/general-introduction/whatispublic-participation/ 3. Information note on public participation in the formation and implementation of state climate policy in EU member states. URL: https://research.rada.gov.ua/uploads/documents/33073.pdf 4. Duvic-Paoli L.-A. The Status of the Right to Public Participation in International Environmental Law: An Analysis of the Jurisprudence. Yearbook European Science Law of International Environmental Law. 2012. Vol. 83. P. 80-105. 5. Convention on access to information, public participation in decision-making and access to justice in environmental matters done at Aarhus, Denmark, on June 25, 1998). URL: https: //unece.org/DAM/env/pp/documents/cep43 e. pdf 6. Baker S., Chapin F.S. The Going beyond "it depends:" the role of context in shaping participation in natural resource management. Ecology and Society. 2018. Vol. 23. Issue 1. https://par.nsf.gov/servlets/purl/10085156 7. Backstrand K., Kuyper. J. The Democratic Legitimacy of Orchestration: the UNFCCC, Non-state Actors and Transnational Climate Governance. Environmental Politics. 2017. Vol. 26(4). P. 764-788. 8. Bernauer & Gampfer Effects of civil society involvement on popular legitimacy of global environmental governance. Global Environmental Change. 2013. Vol. 23(2). P. 439-449. 9. Schroeter R., Scheel O., Renn O., Schweizer P. J. Testing the value of public participation in Germany: theory, operationalization and a case study on the evaluation of participation. Energy Research & Social Science. 2016. Vol. 13. P. 116125. 10. Burton P., Mustelin J. . Planning for climate change: is greater public participation the key to success? Urban Policy Res. 2013. Vol. 31. P. 399-415. 11. IPCC. Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fi^h Assessment Report of the Intergovernmental Panel on Climate Change Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA (2013). URL: https://www.ipcc.ch/report/ar5/wg1/. 12. IPCC. Global warming of 1.5°C. An IPCC Special Report on the Impacts of Global Warming of 1.5°C Above Pre-Industrial Levels and Related Global Greenhouse Gas Emission Pathways, in the Context of Strengthening the Global Response to the Threat of Climate Change, Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA (2018). URL: https://www.ipcc.ch/site/assets/uploads/sites/2/2022/06/SR15_Full_Report _HR.pdf. 13. Bandura A., L. Cherry. Enlisting the power of youth for climate change. Am Psychol. 2020. Vol. 75. P. 945-951 14. Trihartono A., Viartasiwi N., Nisya C. The giant step of tiny toes: youth impact on the securitization of climate change. URL: https://repository.unej.ac. id/bitstream/handle/123456789/99160/F.%20ISIP_Prosidin g_Agus%20Trihartono_The%20giant%20step%20of%20tiny%20toes.pdf? sequence=1 &isAllowed= y. 15. Eddy M. German High Court Hands Youth a Victory in Climate Change Fight New York Times (2021). URL: https://www.nytimes.com/2021/04/29/world/europe/germany-high-court-cl imatechange-youth.html. 16. Lemos M.C., Agrawal A. Environmental Governance. Annual Review of European Science Law Environment and Resources. 2006. Vol. 31(1). P. 297-325. 17. Vormedal I. The Influence of Business and Industry NGOs in the Negotiation of the Kyoto Mechanisms: The Case of Carbon Capture and Storage in the CDM. Global Environmental Politics. 2008. Vol. 8. P. 36-65. 18. Gough C., Shackley S. The Respectable Politics of Climate Change: The Epistemic Communities and NGOs’. International Affairs. 2001. Vol. 77. P. 329346. 19. Newell P., Pattberg P., Schroeder H. Multiactor Governance and the Environment. Annual Review of Environment and Resources. 2012. Vol. 37. P. 365387. 20. Davidson, S.L. & de Loe, R.C. (2016), ‘The Changing Role of ENGOs in Water Governance: Institutional Entrepreneurs?’ Environmental Management. 2016. Vol. 57. P. 62-78 21. Luhtakallio E., Yla-Anttila T. and Lounela A. How do civil society organizations influence climate change policy? Evidence from India, Indonesia, and Finland. Journal Of Civil Society. 2022. Vol. 18. No. 4. P. 410-432. 22. Kostytsky V., Sociological and Legal problems of formation of Ecological statute. Kostytsky, A.P. Getman, H.V. Anisimova, Y.A. Getman, etc. ; edited by Prof. V. Kostytsky. – Lviv-Toruh: Liha-Pres, 2020. – 112 p. 23. Kostytsky V.V. Ensuring environmental safety or ensuring a favorable environment: theoretical and legal justification for the appointment of a modern ecological state. /Kostytsky V.V.//Environmental Law, 2020, No. 2, P. 29-33. (Professional edition. Index Copernicus). 24. Kostytsky V.V. On the significance of the Paris Agreement in the development of environmental law theory / Kostytsky // Priority directions of development of agrarian, land and environmental law in modern conditions: materials of the discussion event dedicated to the 100th anniversary of the birth of Doctor of Law, prof, Corresponding Member of the National Academy of Sciences of Ukraine Shelestova V.S. (Kharkiv, February 22, 2024) / edited by A.P. Hetman; Ministry of Education and Science of Ukraine, Yaroslav Mudryi National Law University, Department of Land and Agrarian Law, Department of Ecol. Law – Kharkiv: Pravo, 2024. – P. 56-60.