Are Courts the Solution or Part of the Problem? Procedural Legitimacy in
Land Use Conflicts
To be presented at the Swedish Political Science Association's 46th Annual Meeting
October 19-21, 2016, in Visby.
The involvement of courts in regulatory decision-making has for a long time been seen as a
uniquely American feature (Kagan 2003). In the past two decades, however, courts have
become more prominent in Europe, too (Kelemen 2011). Even in Sweden, where courts
traditionally deferred to administration, judicial review is continually expanding and those
affected by administrative decisions have gained wider options to challenge unwanted
outcomes. Apart from expanding the opportunity structure for protesting citizens, the
development has concrete implications for how administrative decisions are made. In
particular, it casts significant doubt about the viability of deliberative and participatory
arrangements such as those often used in land use conflicts and siting decisions. Such
procedures have been advocated to increase the legitimacy of decisions that often create
distinct losers (cf. Grimes 2006). The possibility for the “losing” party in a participatory
setting to “exit” this decision-making procedure and chose a court case as an alternative
raises the question to what purpose time and effort is spent on deliberation in the first
place. In addition, exit options add an extra layer of conflict, by making not only the
outcome but also the procedure an issue of contention.
The article illustrates this problem by analysing the clash between the different decision
making mechanisms that are central to the management of the Swedish wolf population. It
starts from the argument that the original procedural design of carnivore management in
Sweden suffered from a category error. While important policy documents describe it as an
issue of wildlife co-management, it resemble much closer a land use conflict and ultimately
also a siting issue. This will be argued in the first section. The literature on land use conflict
suggests that since such conflicts often create distinct winners and losers, the procedural
quality of such decisions is of special importance. The second section therefore deals with
the literature on procedural legitimacy. The third section introduces the case by outlining
the central elements of Swedish carnivore policy, and the policy concerning wolves in
particular. The fourth and fifth section analyse how central stakeholders perceive the
legitimacy of two procedures that have come to shape carnivore policy: regional wildlife
conservation committees (viltförvaltningsdelegationer, VFD) as fora for deliberation
between stakeholders and participation in administrative decision-making, and the judicial
appeals procedure against administrative decisions (which in principle are based on the
participatory arrangement) on licensed hunts for wolves. Recent developments indicate
that courts are becoming the dominant forum of wolf management, calling into question
the viability of deliberative or participatory arrangements. A final section concludes.
The analysis is based on official documents related to Swedish carnivore policy, and a
series of interviews with central stakeholders in this debate, both at the national level and
regionally in the county of Värmland.
The nature of the problem
Nature conservation is often described as a particular form of collective action problem, an
example of what Garret Hardin has called the “tragedy of the commons” (Hardin 1968),
where the problem lies in the combination of finite resources and open access to them.
However, in order to find adequate and legitimate solutions to problems concerning
conservation, it is important to identify more precisely the type of problem at hand. Some
approaches treat nature conservation as a form of common pool resource management.
Nature often is a resource in the intuitive sense of the term, as for example when it comes
to drinking water, forestry products, or grazing land, as in Hardin’s original analogy. One
often advocated solution to such situations, not least by Hardin himself, is it to convert the
commons into private property. This internalises the cost of each additional unit of
subtraction from nature and leads to prudent management. Privatisation, however,
becomes a problematic instrument to solve the tragedy of the commons where it produces
negative externalities, such as run-off from over-fertilised pasture or sulfur emissions from
a paper mill. Ronald Coase has shown that in a world with costless market transactions,
the problem of externalities could be solved through the pricing system, where either
polluters pay those affected by pollution for the right to pollute, or those affected by
pollution pay the polluter to cease polluting (Coase 1960). But transaction costs do exist
(the cost of establishing the exact problem, of drawing up the contract and enforcing its
terms etc.), and can make government intervention desirable even to a liberal economist.
Action by political authorities is often seen as a more viable way than private action to
overcome the problem of externalities and to maintain common and public goods such as
clean air and water. This holds all the more when the good in question is not a resource in
the intuitive sense and its benefits less tangible, such as for example bio-diversity. Hardin,
too, makes a strong argument for government intervention. But in foregoing the pricing
system as a mechanism of distribution, government intervention poses the question of how
to prioritise among goods: “We want the maximum good per person; but what is good? To
one person it is wilderness, to another it is ski lodges for thousands. To one it is estuaries
to nourish ducks for hunters to shoot; to another it is factory land. Comparing one good
with another is, we usually say, impossible because goods are incommensurable” (Hardin
1968: 1244). The challenge for governments is to overcome such incommensurability:
“Only a criterion of judgement and a system of weighting is needed. […] The problem for
the years ahead is to work out an acceptable theory of weighting” (Hardin 1968: 1244).
Conflicts about nature conservation often manifest themselves as such problems of
weighting, either between two common or public goods, such as economic opportunity and
bio-diversity, or between a public good such as bio-diversity and a private good such as
property. In this way, they are often much like land use or siting conflicts, if they are not
evidently just that in the first place. Sites that are set apart for nature conservation can, in
the eyes of local developers, or people dependent on local industry for employment, be
seen as locally unwanted land uses (LULUs), about which there exists a burgeoning
literature (cf. Grimes and Esaiasson 2014). In game-theoretic terms, such conflicts over
nature conservation are more akin to zero-sum games than the positive-sum games (like
the classic prisoners’ dilemma) that form the basis of theories of common pool resource
management (cf. Schlager 2004: 150-151; Grimes and Esaiasson 2014: 760). Whereas
many resource management issues are studied as games that at least allow for mutual gain
through facilitating cooperation and coordination, zero-sum games per definition do not
allow for mutually beneficial solutions. They hence pose acute distributional problems.
Appeals to rational self-interest cannot solve them, and a fair or equitable outcome is
difficult to establish among the parties concerned due to the incommensurability of the
goals (cf. Holzinger 2003: 23-25). Since in such situations any decision will create losers,
the legitimacy of that decision is all the more important in order to avoid deep seated
conflict. In the absence of uncontested standards of weighting the objectives of different
stakeholders against one another, this legitimacy must primarily be created through the
procedure by which the decision is made (Tyler 2006: 109).
These observations apply to the conservation issue at hand, the conflict over Swedish
carnivore policy, and to the issue of wolves in particular. Despite regularly being described
as an issue of co-management, the growth of the Swedish population of large carnivores
can more fruitfully be seen as a land use question. It is a zero-sum game to the degree that
livestock owners face concrete costs where their animals fall prey to carnivores, and the
presence of wolves in particular has been linked to falling revenues from elk-hunting
permits (Westlund 2016). Proponents of carnivore conservation on the other hand state a
belief that bears, lynx, wolves, wolverines and Golden eagles should constitute a part of
Swedish fauna. Arguments about possible economic benefits, as for example from tourism,
are comparatively marginal. The argument is therefore primarily normative, not economic
or utilitarian, and the loss of every animal is a loss to desired bio-diversity. While there are
also controversies about the presence of wolverines and lynx, the question of wolves is by
far the most controversial and emotionally charged. There is little common ground
between proponents and opponents, and a mutually beneficial solution is difficult to
envision. Any decision on the presence or absence of carnivores, and wolves in particular,
will create losers, and deep seated conflict has so far resulted in illegal hunting and
aggression towards hunters, clear expressions that decisions in the matter have not been
universally accepted. This is not to say that no substantive standards exist in deciding
about the presence or absence of wolves. Sweden is under the obligation in international
law to achieve “favourable conservation status” for wolves, but this standard is ill-defined.
All evidence is strongly contested, including the number of animals needed to achieve a
favourable conservation status, and their genetic condition. Live-stock owners and hunters
tend to interpret this status as minimum viability (i.e. as few wolves as possible), whereas
conservationists tend to base their interpretation on carrying capacity (i.e. some kind of
natural balance). Ultimately, even this question comes down to agreeing on a procedure to
determine when the status is reached. The degree of the wolves’ actual impact on local
economies is equally contested – let alone any measure of their impact on “traditional
rural livelihood”. The wolf question also bears close resemblance to a siting conflict – not
because wolves were actively placed anywhere (although such conspiracy theories have
been voiced), but there has been a conscious decision to keep wolves out of northern
reindeer herding areas in deference to the Sami’s special status as indigenous people. As a
consequence, the Swedish wolf population is concentrated in a belt in mid-Sweden from
Dalsland to Hälsingland (with more than half of the population located in the county of
Värmland) and effectively cut off from a much larger wolf population in Finland and
Russia that could potentially rejuvenate the narrow gene-pool. All this suggests that in the
conflict over the Swedish wolf population procedural legitimacy is of central importance.
The idea of procedural legitimacy
The idea of procedural legitimacy (sometimes referred to as procedural fairness or
procedural justice) implies that the legitimacy of a procedure translates into the legitimacy
of the outcome. In normative political theory, procedural legitimacy implies “the existence
of situations in which justice results from following procedures” (Nelson 1980: 505). The
idea figures prominently in liberal political theory, such as that of John Rawls: “A
distribution cannot be judged in isolation from the system of which it is the outcome or
from what individuals have done in good faith in the light of established
expectations” (Rawls 1971: 88). On an individual level, procedural legitimacy implies that
procedures that are perceived as fair will produce outcomes that are seen as more
legitimate than outcomes produced by procedures that are regarded as unfair. This effect
should be irrespective of whether an individual involved “likes” the substance of the
outcome (i.e. whether it is close to her or his personal preferences).
From a societal perspective this concept is intuitively attractive. If there is no clearly
established standard of weighting between otherwise incommensurable goals, a fair
outcome can only be established by a fair procedure. What is unclear, however, is whether
this mechanism holds for the individuals involved in this process. Beyond the realm of
normative theory, the validity of this concept is therefore somewhat more contested in
empirical research (cf. Grimes 2006: 208-210; Esaiasson, Gilljam et al. 2013). The key
effect that is investigated is whether individuals see some merit in a decision even if they
dislike its substantive outcome. The theory goes that “losers” who at least accept the
decision-making process will show greater acceptance of the outcome and hence
willingness to comply with it. They will be more likely to trust the system as a whole and
more willing to follow similar procedures in other conflicts (rather than defect from the
system altogether). Guaranteeing fair procedures should thus increase the resilience of a
system that at times produces unfavourable outcomes to important constituents: “fair
procedures can act as a cushion of support when authorities are delivering unfavourable
outcomes” (Tyler 2006: 107).
The central problem in detecting this effect empirically is the problem that people tend to
conflate their impression of the decision-making procedure with their evaluation of the
outcome (cf. Esaiasson 2010: 354). Post-hoc, it is very difficult to establish wether a person
accepts the process because it produced the desired outcome or whether she or he
condemns the process for producing the wrong results (Grimes 2006: 290). Social
psychologist Tom Tylers influential work “Why People Obey the Law” (Tyler 2006) has
provided evidence from experiments that procedural fairness does matter independently of
the substance of the outcome (Tyler 2006: 105). He also finds that questions of procedural
justice have a concrete impact on individual action: “People are widely found to react to the
fairness by which authorities and institutions make decisions and exercise authority, and
these reactions shape both their willingness to accept decisions and their everyday rule-
following behaviour” (Tyler 2006: 273-274). Other studies are more cautious (cf. Esaiasson
2010; Esaiasson, Gilljam et al. 2013). Where studies find an independent effect of
perceived procedural fairness, this effect seems to be heavily conditioned by the strength of
a person’s prior convictions about what the outcome should be. Procedural fairness plays a
stronger role where people are dispassionate or genuinely unsure about which outcome
they prefer. On the other hand, strong moral convictions about the “right” outcome make
people care much less about how to get there (Esaiasson 2010: 355, 367; Esaiasson,
Gilljam et al. 2013: 6).
Where there is at least some consensus is by what criteria people decide that a procedure is
fair. Central aspects of a fair procedure are held to be that it follows clear and consistent
rules, that decision-makers are unbiased and free from conflict of interest, that they base
their decision on as much good information as possible, and that they give reasons for the
decision (Leventhal 1980; Esaiasson 2010: 356). Another set of factors pertains to the
possibility of those affected by a decision to take part in decision-making. There is general
agreement that a fair procedure allows people a “voice”, i.e. that they can publicly express
their opinion and be heard by decision-makers (Esaiasson, Gilljam et al. 2013: 10). There is
less agreement whether a fair procedure also implies that those affected also get
“influence” over a decision (cf. Kaina 2008: 518). This seems to depend very much on the
type of decision-making procedure. A participatory or deliberative arrangement places
more emphasis on the participants’ ability to influence the outcome than a court
proceeding. Whereas participatory democracy would hardly be meaningful without real
influence over outcomes (Grimes 2006: 294; Grimes 2008: 6; cf. Grimes and Esaiasson
2014: 759), the fairness of a court proceeding is predicated on the absence of any outside
influence on the decision-maker.
This study does not independently test the propositions made above, but it takes these
insights as a point of departure in investigating the different procedures involved in
making decisions on the Swedish wolf population. It assesses the intended contribution to
procedural legitimacy of both the participatory setting in the wildlife conservation
committees and the proceedings before the administrative courts, and contrasts them with
various stakeholders’ perceptions of that legitimacy. Decisions on wolf conservation are an
interesting case for a discussion of the concept of procedural legitimacy since they present
a situation where people who are affected by a weighting decision (and who care deeply
about the outcome) find themselves able to chose between different procedures, and where
the conflict over the outcome gradually transitioned into a conflict over the appropriate
Elements of Swedish carnivore policy
The current system of carnivore management in Sweden was proposed by the Swedish
government and passed into law by the Swedish parliament in late 2009 (En ny
rovdjursförvaltning, Regeringens proposition 2008/09:210) after a lengthy inquiry into a
new carnivore policy (Rovdjuren och deras förvaltning, SOU 2007: 89).
With regard to the management of the Swedish wolf population, among its central
elements is a cap on the number of wolves in Sweden (the number being initially set at 210
and subsequently revised), to be secured by a general licensed hunt (as opposed to a
“protective” hunt for specific animals that have caused damage). In parallel, the policy also
reorganised the existing system of corporatist co-management bodies by creating so called
wildlife conservation committees in each of the 21 Swedish counties. These delegations are
made up of delegates from different organised interests concerned with the presence of
carnivores: farmers, hunters, forestry, recreation and tourism, conservationists, and
reindeer herders, livestock owners and fishermen where appropriate. In addition, a
representative of the police (regarding traffic safety and illegal hunting) and five
representatives of political parties would take part in the delegations, which would be
chaired by the county governor. The aim of the was to “achieve acceptance for carnivores
and to create real regional responsibility for and local influence over carnivore
management” (Prop. 2008/09: 210, p. 25), and the set-up of the delegations would pair
“uppnå acceptans för rovdjuren och åstadkomma ett reellt regionalt ansvar och lokalt inflytande över
rovdjursförvaltningen” (Prop. 2008/09: 210, p. 25).
“real” participation with deliberation between different stakeholders (Lundmark and Matti
The aim of increasing acceptance for the wolf population was also the central aim of the
proposed licensed hunt: “The wolf population should be kept at a level that in the long
term creates a larger acceptance of the wolf in our fauna” (prop. 2008/09: 210, p. 34). In
the absence of favourable conservation status for wolves, the decision to authorise such a
hunt would be with the Environmental Protection Agency, i.e. it would be an
administrative decision by an expert authority. In practice, however, the mode of decision
making about the hunt became much more than just an administrative act. The
development is somewhat complicated and warrants a more detailed description.
The first such hunt was authorised by the Environmental Protection Agency in December
2009 with the aim of culling 27 wolves in the counties of Dalarna, Gävleborg, Västra
Götaland, Värmland and Örebro. It was carried out in early 2010. In March 2010, three
environmental organisation (Naturskyddsföreningen, Svenska Rovdjursföreningen and
WWF Sverige) turned to the European Commission to protest against the hunt, which they
saw in breach of the EU’s habitats directive. The Environmental Protection Agency
authorised a second licensed hunt in December 2010, with 20 wolves to be hunted in early
2011. After this hunt, the European Commission opened an infringement procedure
against the Swedish government, since it also had doubts about the compatibility of
Swedish hunting laws with the habitats directive. This procedure has been ongoing ever
since. As a reaction to this development, the Swedish government temporarily changed
hunting laws to prevent a licensed hunt for wolves in 2012. That year also saw an
important change in the legal situation concerning the possibility to challenge hunting
decisions, which up to then where unappealable. In a case concerning an authorisation for
a protective hunt for an individual wolf in the county of Kronoberg, the Swedish Supreme
Administrative Court decided that, due to international obligations (in particular the
Aarhus Convention and its subsequent interpretation by the Court of Justice of the
European Union), environmental interest groups that fulfil certain requirements should
“Vargstammen bör hållas på en nivå som långsiktigt skapar en större acceptans för vargen i vår
fauna” (prop. 2008/09: 210, p. 34).
For a very detailed chronology, see (Alarik 2016).
These rules are analogous to those in environmental law: In order to have standing, groups that are not
immediately affected by hunting decisions (i.e. are not hunting associations and have not applied for the
hunt) must have the stated goal to protect the environment, have existed for more than three years and have
more than 100 members.
have the possibility to challenge decisions concerning hunting for protected species in
administrative courts (Högsta Förvaltningsdomstolens beslut i mål 2687-12). When the
Environmental Protection Agency subsequently decided to authorise a new licensed hunt
in early 2013, the same three environmental organisations launched a legal challenge,
which was eventually successful in having the the hunting decision annulled. Later in 2013,
then, the Swedish government presented a new proposal for what it considered a
sustainable carnivore policy (En hållbar rovdjurspolitik, Regeringens proposition
2012/13:191). This proposition included several substantial revisions of current policy.
First, it explicitly set a target for the wolf’s favourable conservation status in Sweden, at
170-270 individuals. Second, it allowed for a delegation of hunting authorisations for both
licensed and protective hunts for wolves from the Environmental Protection Agency to the
county administration boards. Third, once such a delegation had taken place, decisions by
the county administration boards should only be appealable to the Environmental
Protection Agency and no longer to administrative courts. The Swedish Parliament passed
the proposition into law in December 2013. Shortly thereafter, the Environmental
Protection Agency authorised another licensed hunt, without however making use of the
possibility to delegate this decision to the county administrative boards. As a result, this
decision remained appealable to the administrative court in Stockholm, which was
subsequently done by the same three environmental organisations. Once again, the court
annulled the hunting decision. Over the course of 2014, the Environmental Protection
Agency then delegated wolf hunting decisions to the county administrative boards. Several
counties subsequently authorised a licensed hunt for early 2015. Environmental
organisations appealed these decision to the Environmental Protection Agency, but the
appeals were dismissed. One organisation, Föreningen Nordulv, then appealed the
Environmental Protection Agency’s decision to the administrative court in Karlstad, which,
to the contrary of what the new law had envisaged, accepted to hear the appeal and
ordered an injunction against the hunt. This decision was in turn appealed to the higher
administrative court (Kammarrätten) in Gothenburg, which annulled the injunction and
allowed the hunt to proceed. This decision, too, was appealed to the Supreme
Administrative Court, which would decide on the principle, the hunt having already been
carried out. The new red-green government, meanwhile, initiated a review of the appeals
procedure during 2015 following the lower instance administrative court’s (and other legal
experts’) doubts about new rules’ compatibility with EU access to justice provisions. This
review resulted in a proposal to reinstate the right to appeal hunting decisions to a court of
law (Riberdahl and Nordengren 2015). The government, however, undertook no concrete
legislative action before several counties authorised another wolf hunt late in 2015. Several
environmental organisations unsuccessfully appealed these decision to the Environmental
Protection Agency. Shortly after the Environmental Protection Agency’s decision, and two
weeks before the envisaged start of the 2016 hunt, the Supreme Administrative Court
published its judgement on the previous year’s hunt. While it did not decide on the
permissibility of the hunt in itself, it did decide that not allowing an appeal to a court of law
ran counter to Sweden’s international obligations, in particular to the Aarhus Convention
and EU access to justice principles. It was therefore subsequently possible to appeal the
Environmental Protection Agency’s decisions to administrative courts, which a number of
environmental organisations promptly did. Two administrative courts, in Karlstad and
Uppsala, immediately issued injunctions, whereas one other, in Gävleborg, let the hunt
proceed. Both administrative courts in Karlstad and Uppsala later decided on the merits
that the hunting decisions did not meet the restrictive requirements of the EU habitats
directive and where therefore unlawful.
Evidently, the saga of the decision making procedures concerning the wolf hunt in Sweden
is complex and has undergone many changes in only seven years. What can be
summarised, however, is that future hunting decisions will be administrative acts of the
county administrative boards, and that such decisions will be appealable to administrative
courts by all stakeholder groups meeting certain minimum requirements. It is however
entirely unclear what requirements a hunting decision will have to meet in order to be
compatible with EU law. The administrative act and the adjudication following legal appeal
follow their own (contested) criteria for procedural legitimacy, which, together with the
deliberative approach of the wildlife management delegations, will be reviewed in the
Deliberation: Wildlife Conservation Committees
One institution that was designed to increase the legitimacy of carnivore management are
the regional wildlife conservation committees. They were specifically set up to allow for
deliberation between the affected parties as a way of reducing conflict and producing
legitimate decisions (cf. Lindqvist and Cinque 2014; Lundmark and Matti 2015). The
consultation that led to the government’s decision to introduce such delegations dedicated
considerable space to the question of legitimacy in carnivore management. The authors
specifically considered procedural legitimacy: “It is not just a decision’s content that is
decisive for it to be regarded as legitimate. It is also necessary that the procedures be fair,
open and that everybody is treated equally. The challenge is to find effective forms of
exchange between administration and the public” (SOU 2007: 89, p. 411). Contrary to a
situation where administration merely informs citizens of its decisions, the idea was to
bring about a situation where administration shares responsibility with citizens. Such
increased participation by citizens and stakeholders (intressenter) would make it possible
to achieve legitimate and mutually beneficial solutions: “Everybody should win by
cooperation to reach compromises and creative solutions to conflicts between people and
carnivores” (SOU 2007: 89, p. 411). As outlined above, there are reasons to be sceptical
that mutually beneficial solutions are available, but the report made reference to the
literature on positive-sum collective action problems, and specifically to Bo Rothstein’s
work on the “social trap” and Elinor Ostrom’s work on governing the commons (SOU
2007: 89, p. 415-416). It even called carnivores a “resource” (en konfliktfylld resurs, SOU
2007: 89, p. 412). At the same time, it states as one possible solution “an agreement that
nobody is entirely satisfied with but that everybody can live with” (SOU 2007: 89, p. 416)
– certainly a more realistic outcome in distributive conflicts, and the only available
compromise in zero-sum games. In order to achieve such outcomes, participation and
deliberation would need to create trust between the stakeholders (SOU 2007: 89, p. 416).
Emphasis was made that by delegating powers to regional wildlife conservation
committees, decision making would be at a level more adequate to the problem, since
“environmental problems and conflicts to a large degree stem from activities at the local
level and solutions should be formulated as close to the problem as possible” (SOU 2007:
89, p. 412). Such fora could also bridge the gap between different types of knowledge, in
particular between scientific knowledge and local knowledge (SOU 2007: 89, p. 419). In
another nod to the criteria of procedural fairness, the report states as a precondition for a
legitimate carnivore management that all affected interests are represented (SOU 2007:
89, p. 419). Finally, the authors admit that the large discrepancy in attitudes can be
problematic, since it can make it more difficult to find compromises that are viable in the
“Det är inte enbart vilka beslut som fattas som är avgörande för att besluten skall uppfattas som legitima.
Det är också nödvändigt att procedurerna är rättvisa, öppna och att alla behandlas likvärdigt.
Utmaningen är att finna de effektiva formerna för samtalet mellan medborgare och förvaltning” (SOU
2007: 89, p. 411).
“Alla skulle vinna på att samarbeta för att nå kompromisser och kreativa lösningar på konflikter mellan
människor och rovdjur” (SOU 2007: 89, p. 411).
“En överenskommelse som ingen är helt nöjd med men som alla kan leva med” (SOU 2007: 89, p. 416).
“Miljöproblem och konflikter till stor del härrör från verksamheter på lokal nivå och föreställningen därför
är att lösningarna bör utformas så nära problemet som möjligt” (SOU 2007: 89, p. 412).
long term (SOU 2007: 89, p. 124). Some groups may be fundamentally opposed to any
compromise. The report’s authors however assume that such groups will often be small
and seldom have the possibility to undermine prevailing policy and management.
The ambitious expectations for deliberation in regional co-management to achieve
legitimate outcomes do not seem to have played out in practice. From the point of view of
important stakeholders, two of the procedure’s central aims were not met: to create real
local influence (“åstadkomma ett reellt regionalt ansvar och lokalt inflytande”), and to
provide equal representation (“alla behandlas likvärdigt”).
A frequently mentioned criticism in my interviews with delegates representing hunting and
farming interests was that VFD do not have much to say:
“We would have wished for greater competences than what we have today. We try to
achieve a local carnivore policy. But it is still very much steered from above by the
Environmental Protection Agency. As it is now in, there is not much we can do, really.
[…] We took a first decision on the wolf population which we thought could be sensible for
the county. […] Then we were overridden by the Environmental Protection Agency. […]
So we had to change our decision to the higher level that the Environmental Protection
Agency suggested” (Interview with delegate in Värmlands VFD, 02.12.2015).
“Wildlife Conservation Committees are consultative. But nothing happens. It works
badly. I don’t know why. [The Environmental Protection Agency] must not believe in
wildlife conservation committees, since they don’t listen to their opinion. […] Wildlife
conservation committees really have nothing to say. They are merely consultative. The
wildlife conservation committee in Värmland wanted seven packs, but they got 13.
Almost double” (Interview with delegate in Värmlands VFD, 01.12.2015).
“Sedan så hade vi önskat en större befogenhet än vad vi har idag. Vi försöker få en lokal rovdjurspolitik.
Men ändå är det väldigt styrt av Naturvårdsverket och uppifrån. Som det är nu i rovdjurspolitiken är det
inte mycket vi kan göra egentligen. […] Vi fattade ett första beslut om vargstammen det vi tyckte kunde
vara rimligt i länet. […] Sedan blev vi överkörda av Naturvårdsverket. […] Så fick vi ändra det beslutet till
det högre nivån som Naturvårdsverket föreslog.”
“Viltförvaltningsdelegationer är rådgivande. Men det händer ingenting. Det fungerar dåligt. Jag vet inte
varför det, [Naturvårdsverket] tror inte på viltförvaltningsdelegationer, eftersom de inte lyssnar på vad de
har för åsikt. […] Viltförvaltningsdelegationer har ingen talan egentligen. De är bara rådgivande.
Viltförvaltningsdelegationer i Värmland ville ha sju revir med föryngring i Värmland, men det blir 13.
The critics here highlight that despite the fact that the wildlife conservation committees as
instances of participatory democracy were set up to create real local influence, this
criterium was not met since the real decisions were perceived to have been taken elsewhere
(cf. Grimes 2008: 6). A slightly different but no less severe criticism of the possibility to
exert influence was raised by environmentalists who argued that conservation interests in
the committees are systematically outnumbered:
“Environmentalist delegates in the conservation committees are always in the minority.
The committees are set up so that hunter interests are automatically stronger. And after
the years it can be quite frustrating for a delegate to be outvoted no matter what facts
one argues” (Interview with wildlife conservation representative, 17.12.2015).
While the set-up of the conservation committees does perhaps not “automatically” favour
hunters as such, evidence from studies of interest constellations in VFD demonstrates that
conservation interests are in the minority (Lundmark and Matti 2015). This situation is
created by the initial ambition that all relevant local stakeholder groups should be
included. Most of these groups feel they face costs from a growing wolf population and
therefore aim to restrict it. In addition, Lundmark and Matti find that many delegates also
self-identify as hunters (Lundmark and Matti 2015: 153), and party representatives can
also have affiliations with other stakeholder groups. This criticism threatens to undermine
the perceived legitimacy of local co-management from the point of view of
conservationists. Recently, representatives of environmental interests decided to leave the
VFD in the county of Västmanland, in effect bringing to an end co-management as it had
been envisaged. Three environmental organisations (Naturskyddsföreningen, Svenska
Rovdjursföreningen and Sveriges Ornitologiska Förening) justified this decision in a
contribution to Uppsala Nya Tidningen, stating that: “hunting interests are strongly
overrepresented among the delegates. Those delegates that should represent the public are
politicians, but in practice they are often hunters themselves or otherwise have
connections to hunting interests. The balance between members who represent hunter
interests and conservation interests are often in proportions of 14-2. […] As a consequence
“Naturvårdens delegater hamnar alltid i minoritet i viltförvaltningsdelegationerna. De är konstruerade
så att jägarintressen per automatik blir starkare. Och efter åren så kan det för en delegat blir ganska
påfrestande att vilka fakta man än kommer med så blir man nedröstat.“
of this skewed interest representation we do not find the management decisions of the
VFD to be legitimate” (Kraft, Sandahl et al. 2016).
To summarise, regional wildlife conservation committees were set up to increase the
legitimacy of carnivore policy by emphasising local knowledge, local influence and
deliberation between affected stakeholders. The central points of criticism raised by
participants against this procedure is the lack of influence of the committees over actual
policy, and the perceived systematic lack of influence of conservationists for reasons of an
imbalance in the represented interests. Both criticism are elemental for the future of this
attempt to create legitimacy through deliberative procedures.
Adjudication: Carnivore management through the courts
In their letter to the editor justifying their intention to leave Västmanland’s wildlife
conservation committee, the three signees make an interesting observation about how to
create trust in the Swedish carnivore policy:
“Trust in politics and administration is decisive for a carnivore policy that is sustainable
in the long run. In the process ahead all must realise that we have legislation that
contains for us as a nation a duty to make sure we have a population of several large
carnivores that has favourable conservation status in our country. The decisions the
authorities take must therefore be legally correct. Hunting decisions and other important
administrative decisions must therefore be appealable to a court of law. The courts’
independent role vis-a-vis the legislator, government and administration is a foundation
of every democracy” (Kraft, Sandahl et al. 2016).
“Jaktintresset är kraftigt överrepresenterat bland delegaterna. De medlemmar i delegationerna som ska
representera allmänintresset är politiker, men utgörs i praktiken ofta av personer som är jägare eller på
annat sätt har kopplingar till jaktintresset. Balansen mellan de medlemmar som representerar jakt
respektive bevarandeintresset är ofta i proportionerna 14–2. […] Den förvaltning som VFD beslutar om
upplevs inte som legitim till följd av den sneda intressefördelningen” (Kraft, Sandahl et al. 2016).
“Tilltron till politiken och myndigheterna är avgörande för en rovdjurspolitik som ska vara hållbar i
längden. I den fortsatta processen framåt måste alla aktörer därför komma till insikt om att vi har
lagstiftning som innebär att vi som nation är förpliktade att se till att vi har bestånd av olika stora rovdjur
i gynnsam bevarandestatus i vårt land. De beslut som myndigheterna tar måste därför vara rättsligt sett
korrekta. Därför måste jaktbeslut och andra viktiga förvaltningsbeslut gå att få överprövade i domstol.
Domstolarnas självständiga roll gentemot lagstiftaren, regeringen och myndigheterna är ett fundament i
They point out that, in their view, substantively “correct” decisions in fact exist. This
strongly curtails the idea of the procedure as a source of legitimacy for outcomes, and
posits that the actual decisions taken by both the wildlife conservation committees and the
authorities can and should be measured against a substantive standard: the international
obligation to reach favourable conservation status for large carnivores. The authors also
propose a procedure by which to test the outcome of deliberative and administrative
processes against this substantive standard: a court proceeding. There are two points of
interest in this proposition. The first is that “favourable conservation status” is itself a
contested substantive standard, and can only be filled with meaning by following a
procedure, presumably including reference to scientific expertise and some decision
making rule (cf. Epstein, López-Bao et al. 2015). Somebody will have to decide when a
species has reached such a status and how it can be maintained, and the making of this
decision will need to conform to standards procedural legitimacy. The argument by the
conservationists is that the wildlife conservation committees are disqualified for this
because of the predominance of hunter interests.
The other interesting point is the implicit question whether the outcome of deliberative or
participatory decision-making should in principle be appealable, or more broadly
“correctable”. Correctability was in fact one of the criteria of procedural legitimacy used by
by Leventhal and Tyler, where it was understood as the opportunity to modify and reverse
a decision if errors have been made (Leventhal 1980; Tyler 2006). It has also been used in
other studies (cf. Esaiasson 2010: 358). The conservationists criticism applies the
criterium of correctability not only to aspects of the process, such as a correction of the
imbalance in representation, but to the substance of the outcome. The question that results
is how much deliberative or participatory fora can be worth if their decisions can be
appealed to a body that substitutes deliberation and participation for its own procedure
and applies its own substantive standards to reach a decision on the outcome. I will come
back to this question in the concluding chapter.
Proponents of court involvement raise a basic argument:
“Courts have an important function in society and that is to solve conflicts that cannot
otherwise be solved. […] If you look at it constitutionally, we have a system,
Montesquieue’s division of power, where power is divided in the constitution, between
courts, administration and legislators. And they control one another. It is therefore
important that courts can review administrative decisions. […] In those countries where
courts cannot review administrative decisions, those decisions tend not to be particularly
good. It is one of the most important protections a democracy can have. That all should
follow the law. And if they don’t, then there should be a court to review that” (interview
with wildlife conservation representative, 17.12.2015).
In this argument, courts hold authorities to account, and where such a mechanism is
missing, the quality of decisions suffers. In this sense, for example, the administrative
court in Karlstad accepted as legitimate the objective of the most recent wolf hunt
authorised by Värmland’s county administrative board (to reduce wolf density and reduce
the socio-economic impact of the wolf population), but it annulled the hunting
authorisation nonetheless, since the authority could not sufficiently demonstrate that the
hunt, as it had authorised it, was necessary, or even suitable, to achieve this goal. The
burden of proof that a hunt is suitable and necessary to achieve a legitimate objective is
now on the authority, and this could in principle lead to more carefully formulated
decisions. On the other hand, opponents of court involvement raise the objection that
courts, and generalist administrative courts in particular, lack the specialised knowledge
required to judge an authority’s decision by these standards:
“Higher and lower administrative courts, they don’t understand certain questions,
especially concerning wildlife management, how it works in practice, they write such
things that you wonder whether we are on the same planet” (interview with hunting
Other decision-makers are held to be more knowledgeable:
“I believe that the Environmental Protection Agency is a bit more knowledgeable than
many courts regarding wolf management. They know how the situation is. Courts are
“Domstolarna har en viktig funktion i samhället och det är att lösa konflikter som inte kan lösas på ett
annat sätt. […] Om man ser det konstitutionellt, så har vi ett system, Montesquieus maktdelningsläran, där
makten delas i grundlagen, mellan domstolar och myndigheter och lagstiftare. Och de ska kontrollera
varandra. Därför är det viktig att domstolarna får pröva myndighetsbeslut. […] I de länder där
domstolarna inte kan pröva myndigheternas beslut, så brukar de sällan bli särskild bra. Det är en av de
viktigaste skyddsreglar för demokratin som finns. Att alla skulle lyda lagarna. Och om man inte gör det så
ska det finnas domstolar som ska kunna pröva det”.
“Kammarrätten och förvaltningsrätten, de förstår inte vissa frågor, specifik kring viltförvaltning, hur
det går till, ur rätt praktisk sätt, de skriver sådana saker att man undrar om man är på samma planet”.
staffed by Stockholmers and they don’t know how things work here” (interview with
hunting representative, 01.12.2015).
“It is the specialist authorities that know the subject matter. And one can complain a lot
about the Environmental Protection Agency’s opinion in some questions, but still it is the
most competent authority” (interview with hunting representative, 17.12.2015).
Democracy is invoked in this context, too:
“Every time a decision has been made, it has been so thoroughly discussed, so often dealt
with, it is really important that it is put into action, also for democracy’s sake. […] The
question has really been debated very much, and we participants have considered,
negotiated and discussed every decision, so to go and appeal to a court, that is really a
provocation” (interview with hunting representative, 17.12.2015).
“When there was an inquiry into how many wolves we should have in order to achieve a
good genetic variation, and they decided, this here population of wolves shall we have, it
was all of Sweden’s, our highest decision-making body, parliament, that said this is how
it should be. So it is somewhat delicate that along comes a small organisation and in a
really undemocratic manner stops all wolf management, which is so significant for us,
for our businesses and our quality of life. It really has a large impact here. It seems very
strange that such a small organisation can have so much power” (interview with
farming representative, 02.12.2015).
“Jag tror att Naturvårdsverket är lite mer kunnig än många domstolar när det gäller förvaltning av
varg. De känner till hur förhållanden är. I domstolen sitter Stockholmare och de vet inte hur det fungerar
“Det är ju faktisk sakmyndigheterna som kan det ärende. Och människor kan klaga mycket på
Naturvårdsverkets syn i vissa frågor och så, men ändå är det den kompetentaste myndighet”.
“De gånger som man har fått ett beslut, de är så mycket diskuterat, så mycket hanterat, det är jätte
viktig att de värkställs för demokratins skull också. […] Frågan faktiskt har debatterats mycket och innan
man kommer till beslut, så har vi parter avvägt, förhandlat och diskuterat, så att hålla på att överklaga de,
det är egentligen provokationer”.
“När man fått utredning på hur många vargar man ska ha för att får en genetiskt bra variation, och de
har beslutat, det här vargnivån ska vi har, det var ju hela Sveriges befolknings, vara högsta beslutorgan,
Riksdagen, som har sagt att det ska vara. Då är det känsligt om då kommer en liten organisation som på
ett egentligen helt odemokratisk sätt stoppar helar förvaltningen av varg som är så betydelsefullt för oss,
på vara företag och livskvalitén. Det påverkar så mycket här. Det tycker jag känns jättekonstigt att en
sådan liten organisation kan får så mycket makt”.
In summary, the legitimacy of court proceedings as a decision-making mode in the wolf
question is highly contested. One central challenge concerns the perceived lack of expertise
of administrative courts in particular, which would violate the criterium that procedures be
based on as good information as possible. Both proponents and opponents moreover
invoke democracy to support their point. While proponents highlight that judicial review is
a central feature of democracies and increases the quality of administrative decisions,
opponents argue that democracy requires that decisions made in participatory
arrangements also be put into practice. To challenge decisions made after deliberation is
seen as a provocation.
Discussion and conclusion
Based on the results of previous studies on procedural legitimacy, it may come as little
surprise that the opinions of the parties to the conflict line up in both the question of the
procedure and of the substance of the outcome. That is, both parties argue for the
procedure that in the past has produced the desired outcome – generous hunting quotas in
the participatory setting and a strict ban on most hunts in the courts. It is almost a moot
counterfactual to ask if the parties would switch sides if courts habitually struck down
decisions to protect the wolf population. In this sense, this constellation may be seen as a
good example of motivated reasoning (cf. Kunda 1990; Esaiasson 2014: 187) – on both
sides, it bears mentioning.
What makes this situation particularly challenging is that the deep seated and emotional
conflict about the substantive questions (“Should there be wolves in Sweden? How many
and where?”) has now been extended to a conflict about procedures, which functions as a
kind of proxy conflict, where both parties have clear expectations about the likely outcome
of the processes “on offer”. This raises important questions about the stability of any
decision-making procedure in issues of land use or siting conflicts, and the legitimacy such
procedures can confer on the outcome. If the likely “losers” in certain procedures have
other options – that is, if they can chose “exit” over “voice” (Hirschman 1970) – they are
likely to abandon the less promising procedure. In doing so they almost certainly
undermine the possibility that procedures can produce legitimacy, at least as long as more
than one procedure is available. The original design of Swedish carnivore policy had meant
to prevent such exit options. The government report that established the co-management
system stated that for a compromise to be possible “it is necessary that people trust one
another, are equally interested in achieving compromise and do not at the first
opportunity abandon the compromise that was reached” (SOU 2007:89: 416). This
assumption may rest on the misinterpretation of the conflict as an issue of co-management
that allows for a positive-sum outcome, rather than the zero-sum siting conflict that it
more strongly resembles. However, as a result of this set-up, the use of courts was seen by
some participants – farmers and hunters in particular – as a breach of trust, by groups
that were perceived as uninterested in compromise. Much political effort has been spent
trying to close this exit option, but this effort in itself has created further mistrust.
Environmental organisations found it an open breach of the rule of law that this option
should be taken from them.
Some discussions of procedural legitimacy have suggested that the possibility to appeal, or
the “correctability” of a decision, should be a criterium of procedural fairness. But there
seems to be an inherent contradiction between the criterium of correctability and the
criterium of real influence in participatory settings. If an appeal can change the forum of
decision-making, the procedure that is used and even the substantive criteria that are used
to determine the outcome, why bother with the initial procedure in the first place? This is
precisely the situation here. Swedish administrative appeals employ a reformatory
procedure in all instances, meaning that the courts do not send a faulty decision back to
the original decision-maker, but replace the original decision with their own (Darpö 2015:
3). Having an appeal admitted to an administrative court therefore basically amounts to
starting a whole new process. This is not to say that courts are inherently problematic. In
many regards, court proceedings are not a bad procedure to handle a conflict such as the
wolf question. As the authors of a 2015 government report on the appeals procedure in
hunting decisions point out, “in cases where there are strong competing interests it is
necessary to have an independent body that has the ability to make a decision after all
parties have had the possibility to express their points of view” (Riberdahl and
Nordengren 2015: 64). Court proceedings as they are structured in Sweden to a large
extend replicate many of the characteristics of other deliberative fora, except that they do
not allow for influence over the outcome. Stakeholders usually receive a chance to express
their views, and all arguments are public. The procedure is free of charge, “there are no
“För att det ska vara möjligt är det nödvändigt att människor känner tillit, dvs. att parterna litar på att
andra, är lika intresserade av att nå en kompromiss och inte vid första bästa tillfälle frångår den
kompromiss som man kommit fram till.” (SOU 2007:89: 416).
“I mål där det finns starka motstående intressen krävs det att det finns en oberoende instans som har
förmåga att fatta beslut efter det att parterna getts möjlighet att lägga fram utredning“ (Riberdahl and
Nordengren 2015: 64).
court fees, no obligation to pay the opponents’ costs, no bonds to be paid for obtaining
injunctive relief, or other costs to be paid” (Darpö 2015: 3). There is also no need to be
represented by a lawyer. Not surprisingly, court cases score highly on the criteria for
procedural legitimacy. They follow clear and consistent rules, judges are generally
unbiased and free from conflict of interest, they base their decisions on expert knowledge
(they are not tied to the arguments raised by the parties) and they give reasons for their
decisions. Parties to the case also have voice. In the context of siting decisions on
undertakings with significant environmental impact, court proceedings are the only
procedure available. Land and Environmental Courts are the first permitting instance –
they take the first decision that can then be appealed to higher courts. While such decisions
can also create significant controversy, as for example in the case of the siting of a
limestone quarry in a protected area in northern Gotland (“Ojnareskogen”), there is little
contestation of the process as such. The Swedish government changed hunting laws in
the spring of 2016 to allow for appeals to all hunting permits for large carnivores. All these
appeals will now be bundled at the administrative court in Luleå to increase the
consistency of court rulings and to make use of existing expertise (Promemoria
N2016/02157/RS: 5-6). Judging from the continued strong opposition to a wolf hunt by
environmental organisations (cf. Nilsson, Bergstam et al. 2016), it can be expected that this
court will become the primary location for decision-making on hunting and carnivore
This decision may settle the issue of multiple available processes, if not in principle, then at
least in practice. But it is nonetheless valid to ask if under these conditions deliberative
and participatory fora can have a future. Judicial review of administrative decisions is
becoming a more commonplace feature in Europe, in environmental issues as a result of
the Aarhus Convention and elsewhere as a result of European integration (cf. Kelemen
2011) and the diffusion of American regulatory styles (cf. Kelemen and Sibbitt 2004), and
the globalisation of “rights talk” (Epp 1998). With the growing prominence of courts,
theories of participatory and deliberative democracy and the literature on procedural
legitimacy in land use conflicts will have to take the problem of competing procedures
That conflict demonstrated other drawbacks of court procedures, such as their duration (the case has been
in appeals procedures for eleven years), but it is also an extreme outlier among similar permitting processes.
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