The legal mobilization of environmental social movements

The analysis of the legal mobilization of environmental activists primarily centers on litigation (Chua Reference Chua2019; Vanhala Reference Vanhala2022) and legislative reforms (Johnson and Agnone Reference Johnson, Agnone, Grasso and Giugni2022), specially on the issue of climate change (Arnall et al. Reference Arnall, Hilson and McKinnon2019). Here, research points at three factors favoring the legal action of social movements (Vanhala Reference Vanhala2022). First, a robust legal stock (e.g., norms regulating societal interactions with the environment) providing grounds for litigation (Andersen Reference Ellen Ann2006). Second, a favorable legal opportunity structure allowing activists to channel their grievances to an independent judiciary (Doherty and Hayes Reference Doherty and Hayes2012; Vanhala Reference Vanhala2012). Finally, the availability of resources, such as money and networks, to support litigation efforts (Vanhala Reference Vanhala2016; Aspinwall Reference Aspinwall2021).

Most of these analyses have focused on the Global North (Auz Reference Auz2024; Peel and Lin Reference Peel and Lin2019). However, evidence from Latin America shows similar trends due to the increasing role of courts in mediating environmental conflicts (Couso et al. Reference Couso, Huneeus and Sieder2010), with the case of Colombia presenting the most favorable context for legal mobilization due to its judicial system (Lehoucq Reference Lehoucq2021). Its 1991 Constitution established a justiciable legal framework mandating courts to safeguard environmental principles, making judges crucial in their progressive and expansive interpretation (Couso Reference Couso, Hübner, Gargarella and Guidi2022). Additionally, it introduced tutelas, legal proceedings allowing individuals to directly complain about threats or violations of their constitutional rights to a judge without needing a lawyer, thereby reducing the cost of litigation (Landa Reference Landa2011). As these constitutional rights and mechanisms became embedded in the social fabric, Colombian courts became a central locus of activism expanding the realm of environmental protections through a progressive interpretation of constitutional principles (Taylor Reference Taylor2023). Therefore, Colombia highlights the potential of legal mobilization and the relevance of constitutional norms to design a system of justiciable rights.

However, the judicial route has limitations. Litigation may render suboptimal results (Rosenberg Reference Rosenberg2008) and weak legislation constrains the justiciability of norms (Albiston Reference Catherine2010), particularly for an emerging field in the Global South such as climate litigation (Auz Reference Auz2024). Chile is a good example of these judicial limitations within Latin America. Although the country has an independent judiciary, three institutional issues hinder environmental activists’ use of the Environmental Courts established in 2013. First, Chile lacks constitutional mechanisms like Colombia’s tutelas, and local courts do not offer legal or technical guidance for filing claims. Due to the pervasive resource constraints of local environmental groups (Moreno Reference Moreno2023; Schaeffer Reference Schaeffer, Donoso and von Bülow2017), activists without the means to hire professional lawyers are at a disadvantage if they cannot cover the costs of litigation.

Second, the judicial interpretation of norms often focuses on procedural rather than substantive aspects of existing environmental laws, leading to widespread criticisms (Rabi and Campos Reference Rabi, Campos, Damonte and Schorr2021, Akchurin Reference Akchurin2023). For instance, while constitutional provisions on environmental issues are limited, Article 19 of the 1980 Constitution formally recognizes the right to live in a pollution-free environment. However, judges frequently interpret it in relation to the right to health and not linked to environmental protection (Galdámez Zelada Reference Galdámez Zelada2017).

Finally, existing laws are inadequate for addressing urgent environmental issues (Moraga Sariego Reference Sariego, Sindico and Mbengue2021) as they often subordinate to higher-order norms, restricting activists’ legal mobilization by limiting progressive judicial interpretation (Akchurin Reference Akchurin2023; Cardoso and Pacheco-Pizarro Reference Cardoso and Rayen Pacheco-Pizarro2021; Ciftci and Lemaire Reference Ciftci and Lemaire2023). For example, laws such as the Mining Code, which favors business interests, take precedence over environmental regulations (Akchurin Reference Akchurin2023; Cardoso and Pacheco-Pizarro Reference Cardoso and Rayen Pacheco-Pizarro2022).

These institutional obstacles have two implications for the interaction between the local environmental movement and Chilean courts. First, they largely account for activists’ difficulties in challenging major private interests in key economic areas, such as mining or agribusiness (Rabi and Campos Reference Rabi, Campos, Damonte and Schorr2021). Second, local environmental groups mistrust the court system altogether (Akchurin Reference Akchurin2023), resulting in a strained relationship between the environmental movement and the state (Ciftci and Lemaire Reference Ciftci and Lemaire2023).

During their struggle over the decommodification of water – a key environmental demand – activists extended their criticisms about the judicial system to the 1980 Constitution, recognizing it as the root of the insufficient legislative framework and of their judicial obstacles (Del Campo et al. Reference Del Campo, Esther, Sánchez, Navarrete and Tricot2021; Torres-Salinas and Alvez Marin Reference Torres-Salinas and Alvez Marin2023). Established during General Pinochet’s dictatorship (1973–1990) and supporting a neoliberal economic model, Chile’s constitution only recognizes water as a commodity (Article 19, N.24). Although the 1981 National Water Code formally declares water a national public good, it subordinates and further reinforces its constitutional commodification by allowing the trading of water rights in a free market (Bauer Reference Bauer2015). These laws continue to create a legal framework that supports a free-market approach (Maillet and Carrasco Reference Maillet, Carrasco, Damonte and Schorr2021), which benefits mining and agribusiness interests (Dame et al. Reference Dame, Nüsser, Schmidt and Zang2023) and prioritizes extractivism over human consumption and ecological considerations (Torres-Salinas and Alvez Marin Reference Torres-Salinas and Alvez Marin2023).

This constitutional order also undermines activists’ efforts to legislatively address water and climate change issues (Borgias Reference Borgias2018). Politically, the environmental movement has limited influence, successfully opposing only some local-level polluting projects (Huneeus et al. Reference Huneeus, Toro, Pablo Luna, Sazo, Cruz, Alcatruz, Castillo, Bertranou and Cisterna2021; Delamaza et al. Reference Delamaza, Maillet and Martínez Neira2017; Madariaga et al. Reference Madariaga, Maillet and Joaquín Rozas2021). At the congressional level, activists’ influence is even more restricted, making the prospects of substantially reforming the 1980 Constitution and the 1981 Water Code nearly nonexistent. Environmental laws have remained largely unchanged (Tecklin et al. Reference Tecklin, Bauer and Prieto2011) and the protection of free-market norms (e.g., water rights), essential to the country’s extractivist model, receives cross-partisan support (Maillet and Carrasco Reference Maillet, Carrasco, Damonte and Schorr2021). Consequently, the Chilean environmental movement found itself at a political dead-end. Unable to pursue litigation or legislative changes, activists saw constitutional reform as their only viable strategy to secure reforms addressing water issues and, by extension, climate change (Torres-Salinas and Alvez Marin Reference Torres-Salinas and Alvez Marin2023).

Therefore, this case highlights two key issues. First, that constitutions are key to define legal opportunity structures (Vanhala Reference Vanhala2012, Reference Vanhala2022; De Fazio Reference De Fazio2012), as they create institutions and procedures mediating the effectiveness of legal mobilization. Second, and related to this point, that institutional obstacles may motivate social movements to diversify the targets and means of their legal mobilization. That is, activists may pursue litigation on issues like climate change, but they may also aim to modify legal structures and laws at the constitutional level.

Social movements and constitutional mobilization

While acute social conflict and widespread mobilization are key factors in precipitating constitutional replacement processes or substantive reforms globally (Blokker Reference Blokker2018; Eisenstadt et al. Reference Eisenstadt, Carl Levan and Maboudi2017; Negretto Reference Negretto2020), activists’ participation in the politics of constitutional replacement is typically limited. Institutional elites – who possess greater political experience and resources – tend to dominate deliberations at constitutional assemblies, relegating activists to peripheral roles (Negretto Reference Negretto and Thompson2017). Thus, regardless of the growing attention to the analysis of constitutional mobilization (Blokker and Thornhill Reference Blokker and Thornhill2017) our understanding of the capacity of movements to shape these processes and its results is limited (Blokker Reference Blokker2018; Della Porta Reference Della Porta2020; Eisenstadt et al. Reference Eisenstadt, Carl Levan and Maboudi2017; Rodríguez et al. Reference Rodríguez, Rojas Soto and Cuadros2024).

Constitutional mobilization can be understood as a form of legal mobilization in which social actors use norms, contextual opportunities, and resources to push for constitutional reforms affecting laws, legal institutions, and legal processes (Son Reference Son2018). Since Latin American countries have replaced their constitutions more frequently than those in any other region of the world (Hartlyn and Stoyan Reference Hartlyn and Stoyan2020), they provide an opportunity to examine how activists mobilize and shape these processes. Historically, political elites in Latin America have addressed social exclusion and inequality by incorporating social rights into the constitution (Angel and Lovera Reference Angel, Lovera, Helena, Karl and Lucy2014; Gargarella Reference Gargarella, Hübner, Gargarella and Guidi2022). However, since the 1990s, activists, including environmental groups, have turned directly to constitutional mobilization when governments, parliaments, and courts fail to meet popular demands (Negretto Reference Negretto2020).

Cases such as Colombia in 1991, Bolivia in 2009, and Ecuador in 2008 illustrate this phenomenon in a distinct trend known as “Latin American neo-constitutionalism” (Couso Reference Couso, Hübner, Gargarella and Guidi2022). Here, new societal actors like social movements, and emerging social issues including environmental concerns (Negretto Reference Negretto2015), play key roles in constitutional processes. Political elites remain crucial in these processes as they negotiated the provisions of the new charters (Deheza Reference Deheza2008; Eisenstadt et al. Reference Eisenstadt, Carl Levan and Maboudi2017; Negretto Reference Negretto2020). However, activists were instrumental in introducing new topics, mobilizing to pressure constituent assemblies, and working with political parties to include their goals to the new constitutions.

For instance, the charters of Bolivia (2009) and Ecuador (2008) incorporated extensive environmental provisions that outline principles, rights, regulations, competencies, and procedures (Mendes and Rached Reference Mendes, Rached, Mendes, Gargarella and Guidi2021; Svampa Reference Svampa2019). Activists pushed for these constitutional innovations following a lengthy mobilization process that began before the start of the constitutional drafting. Through extensive coalition work with other actors both inside and outside their constitutional assemblies, activists achieved some of their historical demands (Akchurin Reference Akchurin2015; Wolff Reference Wolff, Nolte and Schilling-Vacaflor2012). The 1991 Colombian Constitution, though it contains fewer rights compared to the other two cases, created a favorable legal opportunity structure (Vanhala Reference Vanhala2012) by incorporating environmental state duties and mandating courts to interpret and safeguard them. Later, environmental activists have secured major victories by invoking these principles before local judges, thereby influencing the interpretation of the constitution during its implementation (Taylor Reference Taylor2023).

These cases exemplify the relevance of constitutions and constitutional mobilization for advancing the goals of the Latin American environmental movement. Although implementing environmental constitutional provisions often faces challenges due to bureaucratic and resource limitations (Couso Reference Couso, Hübner, Gargarella and Guidi2022), these provisions grant activists with a crucial foundation to institutionally legitimize their claims in the congressional and judicial arenas (Akchurin Reference Akchurin2015; Svampa Reference Svampa2019). As a result, by successfully incorporating new norms and establishing institutions responsible for enforcing them, activists have secured substantial gains in advancing both their present and future goals.

The Latin American experience suggests that constitutional mobilization could be even more promising for activists if they played a more central and unmediated role during the politics of constitution-making. This is particularly relevant when addressing issues like climate change, which would require introducing different provisions covering mandates, principles, and institutional structures to address its manifold manifestations. Therefore, instead of navigating the failings of the legal system to increase their chances of success (Vanhala Reference Vanhala2012), activists are agentic actors in creating the institutional conditions that secure the achievement of their goals and enhance their future mobilization effectiveness. However, since constitutional drafting has been almost exclusively controlled by institutional elites (Negretto Reference Negretto and Thompson2017), we know less about the influence activists can exert and the outcomes of their efforts in constitutional processes where they are key actors.

The Chilean environmental movement and the opportunity of constitutional change

Besides the constitutional obstacles constraining the legal activism of the Chilean environmental movement, two interrelated conditions have shaped its mobilization. One is the megadrought affecting Chile since 2009, which intensified environmental problems associated with the country’s “extractivist” economic model (Svampa Reference Svampa2019) and exacerbated environmental conflicts and protests (Delamaza et al. Reference Delamaza, Maillet and Martínez Neira2017; Donoso and Von Bülow Reference Donoso and Von Bülow2017; Huneeus et al. Reference Huneeus, Toro, Pablo Luna, Sazo, Cruz, Alcatruz, Castillo, Bertranou and Cisterna2021), around economic activities like mining (Dame et al. Reference Dame, Nüsser, Schmidt and Zang2023) and agribusiness (Madariaga et al. Reference Madariaga, Maillet and Joaquín Rozas2021). While the water crisis is the main driver behind these mobilizations (Carranza et al. Reference Carranza, Varas-Belemmi, De Veer, Iglesias-Müller, Coral-Santacruz, Méndez, Torres-Lagos, Squeo and Gaymer2020), the megadrought linked it to climate change on a national scale by impacting different communities (Carruthers and Rodríguez Reference Carruthers and Rodriguez2009; Torres-Salinas et al. Reference Torres-Salinas, Azócar García, Carrasco Henríquez, Zambrano-Bigiarini, Costa and Bolin2016). Thus, the fight for water became a proxy for addressing the broader consequences of climate change for local environmental activists.

The megadrought also favored the emergence of new environmental groups, ranging from informal grassroots networks to national organizations like MODATIMA (Movement for the Defense of Water, Land, and the Environment) and MAT (Movement for Water and Territories), which promoted water-related issues while critiquing the country’s extractivist neoliberal model. Despite the movement’s fragmentation (Schaeffer Reference Schaeffer, Donoso and von Bülow2017), these groups recognized the links between the water crisis and climate change. Nonetheless, like other environmental organizations worldwide (Dietz et al. Reference Dietz, Shwom and Whitley2020; Klinenberg et al. Reference Klinenberg, Malcolm and Liz2020), they discussed this issue internally while directing their public campaigns toward more immediate and tangible causes to increase the resonance of their messages (Del Campo et al. Reference Del Campo, Esther, Sánchez, Navarrete and Tricot2021). Still, these groups adopted universal frames, such as environmental justice and the human right to water (Madariaga et al. Reference Madariaga, Maillet and Joaquín Rozas2021; Urkidi and Walter Reference Urkidi and Walter2011), to highlight the broader relevance of their cause and underscore the inadequacy of the existing institutional framework to address them.

The other condition shaping environmental mobilization is the deep and persistent crisis of political representation in Chile (Luna Reference Luna2016), which has further distanced activists from institutional politics. Repeated disillusionment with parties and administrations across the ideological spectrum (Moreno Reference Moreno2023) has made environmental activists skeptical of the willingness and responsiveness of political authorities to address water and environmental issues (Somma and Medel Reference Somma, Medel and Donoso2017). This distrust has significant consequences for legislative reform. Activists, wary of the entire political system, are reluctant to engage in negotiations, work closely with, or align themselves with any political party. Although activists may cultivate personal alliances with a few legislators to advance their demands (Moreno Reference Moreno2023; Somma and Medel Reference Somma, Medel and Donoso2017), these connections alone are insufficient to influence reforms on critical issues (López Reference López2023). Therefore, this mistrust critically undermines the prospects for achieving the long-awaited decommodification of water, as established in the 1980 Constitution, since broad partisan support and negotiations are essential for making constitutional reforms feasible.

Under these circumstances, in October 2019, Chile experienced a wave of nationwide protests that triggered the deepest political crisis in decades. Initially ignited by a hike in public transportation fares, the protests persisted for weeks without identifiable leaders (Aguilera and Espinoza Reference Aguilera and Espinoza2022), forcefully challenging both the country’s authorities and its neoliberal model (Garretón Reference Garretón2021; Somma et al. Reference Somma, Bargsted, Disi and Medel2021). Responding to the intensity of the protests (Escudero Reference Escudero2022), the political system initiated a constitutional replacement process, as the 1980 Constitution was widely seen as the root cause of the country’s inequalities (Murillo et al. Reference Murillo, Levitsky and Brinks2021). The Agreement for Peace and a New Constitution (Acuerdo por la Paz y la Nueva Constitución), signed by most parties, introduced a referendum asking whether to replace the 1980 Constitution and establish a Constitutional Convention to draft a new one. Both options received overwhelming support, with approximately 78% of the vote in a referendum held in October 2020. Aware of the crisis of representation, legislators sought to enhance the Convention’s future legitimacy by adopting additional measures such as facilitating the participation of independents (Alemán and Navia Reference Alemán and Navia2023; Larrain et al. Reference Larrain, Negretto and Voigt2023).

The social outburst and the start of the constitutional process provided the environmental movement a chance to redefine its strategy and decisively engage in constitutional mobilization. Initially, local activists were skeptical about participating in the constituent process due to their mistrust of institutional politics. However, they recognized the electoral reforms favoring the participation of independents as a unique opportunity. Activists could be elected to replace the country’s legal framework without the mediation of political parties and advocate for new tools to address current and future environmental issues (Carrasco et al. Reference Carrasco, Abad, Cuevas, Cariaga, Mansilla and Maillet2022). Thus, environmental activists either formed their own lists or pragmatically joined party lists as independents. These candidacies proved highly competitive, with independents (including movement activists) securing 67% of the 155 seats at the Convention. Environmental candidates were particularly successful, winning 27% of the seats (Rozas et al. Reference Rozas, Olivares and Antoine Maillet2022).

These election results are unique in the study of social movements. Activists rarely gain direct access to decision-making spaces at the legislative and bureaucratic levels (Amenta et al. Reference Amenta, Caren, Chiarello and Yang2010), and while they may attempt to influence elections, they struggle to get their own members elected to public office (Banaszak and Whitesell 2016). These positions of power are significant because they decide legal reforms that may have lasting effects for a movement (Amenta et al. Reference Amenta, Andrews, Caren, Snow, Soule, Kriesi and McCammon2019). The sizeable electoral representation environmental activists achieved makes this result even more remarkable, positioning them as key players at a critical political juncture, such as the drafting of a constitution.

Activists elected to the Convention held positive expectations about the outcomes of their constitutional mobilization as they shared common goals, such as the decommodification of water and recognizing the human access to water. Both were historical movement-level demands and proxies to address the local consequences of climate change, and activists were confident in their ability to shape the process to fully incorporate their demands (Maillet et al. Reference Maillet, Abad, Cariaga, Carrasco, Cuevas and Mansilla2021). Thus, the environmental movement engaged in constitutional mobilization due to its potential to disrupt the status quo, break the political deadlock on key environmental issues, and prepare the country to tackle the multifaceted challenges of climate change.

Data and methods

The data come from a larger project focused on studying the political dynamics of the Chilean constitutional replacement process, and the first step of the data collection process was accessing the Constitutional Convention. However, as a novel and temporary institution (July 4, 2021 to July 4, 2022), it lacked formal procedures for visitors, and COVID-19 restrictions further limited access to outsiders. Once COVID-19 restrictions eased in October 2021, I employed two strategies to enter the Convention. First, after direct communication with the Convention’s management, I received a pass granting me the same access level as a journalist. It allowed me to enter the garden of the premises where the Convention was held (and where press conferences occurred) but not the main building where deliberations took place. Nevertheless, I gained an opportunity to introduce myself to delegates taking breaks between sessions and engage in informal conversations with them.

Second, in February 2022, I gained full access to the Convention due to the rapport I built with a delegate unrelated to the environmental cause. After explaining my research project to her, she offered to register me as an unpaid staffer to continue my fieldwork. Before accepting her offer, we discussed the terms to avoid potential conflicts of interest and ensure my autonomy as a researcher: I would not disclose the identities of the delegates I interviewed nor the content of those conversations, and I would not work nor engage in any activities supporting her, her caucus, or any of her causes. After agreeing to these terms, I visited the Convention daily until it concluded in July 2022. This position granted me full access to committee meetings and hallways.

This article draws on data from three primary sources, with the main one being 76 semi-structured interviews conducted in two rounds. The first covered a sample of 66 out of the 154 members of the Constitutional Convention. The sampling criteria targeted mainly delegates focusing on the discussion of social and environmental rights. The sample of respondents had a diverse background: 64% were women, 80% represented districts outside Santiago, the capital, and 29% were involved in grassroots environmental groups advocating for local causes. A total of 26 respondents participated in an environmental caucus known as “EcoConstituyentes” (hereafter Eco-Constituents). This group, described in the findings section, consisted of 37 delegates pursuing the constitutionalization of various environmental issues (Maillet and Martínez Reference Maillet and Martínez2021).

The interviews, conducted between December 2021 and August 2022, aimed to capture the respondents’ perspectives on the constitutional process and their role within it. Initial questions were broad, covering general topics that also guided the coding process, such as the delegates’ expectations before joining the Convention, their key demands, and the strategies they used to influence the Convention. Follow-up questions were tailored based on their previous responses.

The second round consisted of 10 follow-up interviews conducted with respondents from the first round, which included six Eco-Constituents. These interviews took place in September and October 2022, following the plebiscite held on September 4th, which rejected the Convention’s proposal. The second set of interviews compared the respondents’ initial expectations and demands with the referendum’s campaign and result.

The decision to interview only environmental activists elected as delegates and not other members of the movement responded to two main reasons. First, these respondents were the main leaders of their organizations and despite their focus on specific causes – such as animal rights or forest protection – they coincided on broader environmental issues, including climate change and the decommodification of water. Second, because the Convention garnered most of the attention of the environmental movement between 2021 and 2022, there were no significant external episodes of mobilization. Therefore, while this research cannot give an overview of the entire environmental movement, it provides detail on the perceptions and trajectories of its leaders (and delegates) at the Convention.

Most interviews started as informal conversations with the delegates. During these conversations, I introduced myself as a researcher, explained the focus of the research project, and described how I gained access to the Convention. Before conducting each interview, I provided a consent form approved by my university’s Ethics Committee, outlining the research goals and assuring confidentiality. In accordance with these guidelines, all audio files were deleted after transcription, and quotes have been anonymized using synonyms. The interviews were transcribed and analyzed using Atlas.ti. The average duration of the 76 interviews was 70 minutes, with individual interviews ranging from 17 to 180 minutes.

I added another two complementary sources of data. The first was archival research from media and institutional sources. The selection of media articles focused on a daily revision of print and online media, selecting pieces that summarized events at the Constitutional Convention during its tenure, particularly on the discussion of environmental measures. These articles were retrieved from online sources, such as the main websites of relevant newspapers. The selection of institutional sources covered all the documents and transcripts of all the committee and plenary sessions held at the Constitutional Convention. These transcripts, publicly available at the Convention’s official website, registered the deliberations and votes on the articles to be incorporated into the constitutional draft, including the proposal voted on September 4th.

The final source of data stems from participant observations carried out at the Constitutional Convention, spanning from December 2021 to July 2022. These observations occurred weekly from December 2021 to March 2022 and escalated to a daily frequency from April until July 4, 2022, when the Convention concluded its proceedings. The focus of these observations was to document interactions among delegates at the committee level and in the hallways. Additionally, these documented observations, informal conversations, and the interviews with the delegates were anonymized using synonyms if quoted in the text.

Findings

The empirical section chronologically examines how environmental activists advanced their agenda and contributed to the inclusion of constitutional provisions on climate change and water rights, dividing the constitutional process in three distinctive stages. The first occurred between July and October 2021 and centered on establishing the Convention’s internal regulations, which would shape the deliberation and approval of constitutional norms. The second, from November 2021 to July 2022, focused on the preparation, introduction, discussion, and approval of norms within commissions and plenary sessions to form the Convention’s proposal. In these two stages, we can note how activists’ perception about the process and their role in it informed their actions in the politics of constitution-making and created tensions with party delegates. The third stage covers the campaign period, which started after the Convention presented its constitutional draft, and the aftermath of the plebiscite of September 2022.

The third stage of the constitutional process: the referendum and the downsides of constitutionally pursuing environmental demands

The end of the Constitutional Convention exposed activists to the downsides of pursuing action against climate through constitutional reforms, exposing Eco-Constituents to the unintended consequences of their constitutional mobilization on three fronts. First, activists experienced the complexities of campaigning for a proposal that had several nonenvironmental issues. Second, they faced criticism during the campaign for the bad image of the Convention as a whole and their actions as delegates, which undermined their movement’s standing. Third, the progress on their demands – e.g., securing state action against climate change and decommodifying water – was compromised after the rejection of the constitutional draft in the national referendum.

As Graph 1 shows, starting in January 2022, surveys consistently indicated a trend against the constitutional proposal (Cadem-Plaza Pública 2022), which coincides with the moment when the delegates started debating constitutional articles. While the reasons behind this rejection are multiple (see Alemán and Navia Reference Alemán and Navia2023; Larrain et al. Reference Larrain, Negretto and Voigt2023), the missteps of the delegates, such as those of the Eco-Constituents, contributed to the idea that the constitutional draft was ideologically biased, exclusionary, and written by poorly prepared people (Larrain et al. Reference Larrain, Negretto and Voigt2023).

Graph 1.

Voting preferences about the constitutional proposal.

All delegates knew about this negative trend before the end of the Convention. While the causes behind this quick fall in public support are manifold and expectable in a country experiencing a severe crisis of representation, Eco-Constituents like Vladimir remained confident during the campaign period. In an interview 2 weeks prior to the referendum, he argued that people would approve the proposal since “the articles related to water, related to nature, are cross-cutting demands that have broad support from society.” Ultimately, activists like Vladimir hoped that the surveys were inaccurate, and that people would recognize the social advances in the constitutional proposal.

Activists were also isolated during the referendum campaign. Continuing their distrust in institutional politics, the Eco-Constituents (and other social movement delegates at the Convention) chose not to campaign alongside leftist parties. This decision further reinforced their disconnection from political parties, most of which (even from the center left) decided to reject the proposal or showed a lukewarm support at best (Heiss Reference Heiss2023). This is an important factor since partisan support has been a relevant condition for the success of other constitutional replacement processes in Latin America. Additionally, statements from the left-wing coalition in power – who did not participate in the Convention’s negotiations – contributed to turn the plebiscite into a referendum on an administration hit by the effects of the pandemic, high inflation, and public security concerns, adding one more complication to the chances of approving the text (Lissardy Reference Lissardy2022).

Despite activists’ expectations at the beginning of the constitutional process and during the campaign, the plebiscite’s result was even worse than polls anticipated, with 62% of the population rejecting the proposal. This percentage was particularly significant since the voter turnout was the highest in Chilean history.

Activists explained this result pointing at two trends they observed during the campaign. First, that people decided their vote months before the end of the Constitutional Convention. All activists noted that the public supported the environmental rights secured during the Convention, although there were some reservations among rural groups regarding water rights. However, according to Paula,

I feel that people in Petorca didn’t reject the human right to water; they did not vote against water but voted based on lies, misinformation, and out of fear too … Well, there are several factors, like the mandatory vote at the plebiscite, the lack of synthesis in the text, and we could say that it was not easy to convey a constitutional text in two months. (Paula, Eco-Constituent. October 2022)

Paula’s interpretation of people’s voting aligns with other sources of data, as surveys conducted after the plebiscite indicate that environmental and water rights were the most favorable aspects of the proposal (Criteria 2022). However, Paula’s reference to the town of Petorca, which is a symbol of water mismanagement and scarcity in the country, acknowledges that people pondered other factors when voting and that 2 months was not enough time to change a consolidated public opinion trend.

Moreover, activists recognized that the weight of some controversial measures negatively affected people’s support for the proposal and were enough to define their votes. For instance, a couple of Eco-Constituents from different districts explicitly recall encountering evangelicals during the campaign period supporting and celebrating the rights of nature, but who rejected the proposal as it granted abortion rights. Something similar happened with another unpopular measures such as the extension of indigenous rights. Therefore, specific issues defined people’s vote despite their sympathy for other measures such as the decommodification of water.

Second, other Eco-Constituents also recognized that their political style and decisions during the Convention could have contributed to erode people’s trust in the proposal. For instance, Leandro, who justified in May the exclusion of the right from political negotiations, recognized that it was a mistake and that he should have pushed for their incorporation:

Due to my lack of political experience, I didn’t take a more leadership-oriented role in certain matters. I would have been more open to dialogue, much more open to dialogue. But the way the process was set up made it very difficult … My decision would have been to include them (the right). I didn’t push for it because I was blocked, I was completely overwhelmed. I couldn’t reach that point of reflection, and because … there was an extreme that wasn’t going to engage in dialogue with them. (Leandro, Eco-Constituent. September 2022)

Leandro later acknowledged that excluding the right contributed to the perception of a biased constitutional proposal that did not represent a plural society. This quote also highlights other two key factors. First, the fast pace of the constitutional process precluded activists from building interpersonal ties and reflect on the development of the process (Moreno Reference Moreno2024). Second, activists’ inexperience in institutional politics, which was an asset in their election as delegates, was a key obstacle during the constitutional process. Thus, while activists focused on achieving their demands during the intense decision-making process, they failed to recognize the uniqueness of their electoral success, the implications of their political decisions, and the broader public opinion outside the Convention. Eco-Constituents like Marina concurred and added after the referendum that controlling two-thirds of the CE had costs because “it was questioned whether the commission was politically diverse to address an issue intended to represent majorities.” Although activists declared being aware of this issue during their tenure in informal conversations during the Convention, they began to question its consequences during the campaign as they faced scrutiny about their work.

Finally, the rejection of the constitutional proposal also affected the movement and its demands. Many Eco-Constituents, who were the leaders of their environmental organizations, observed a notable decline in their mobilization capacity. Spending an entire year working full-time as delegates left their groups in disarray, making it difficult to reorganize them in time to campaign in support of the proposal. Additionally, the lengthy constitutional process and fast deliberations at the Convention undermined maintaining consistent local mobilization. As one Eco-Constituent explains,

(our presence at the Convention) tore part of the (grassroots) social tissue … we got rapidly stuck in a very time-consuming schedule and following what happened here and in the streets was hard for everyone. My comrades are really committed, but they also have jobs, families, etc … and we were constantly voting at the Convention and that (hectic) pace dilutes the movement. We had everything against us. (Sylvia, Eco-Constituent. October 2022)

She later noted that the political context is less dynamic than it was at the beginning of the Constitutional Convention, leaving rank-and-file activists fatigued and disillusioned with institutional politics following the rejection of the proposal. On top of the demoralization of grassroots activists after the referendum, several Eco-Constituents also claimed that participating in the Convention and the criticisms over their workstyle undermined their standing as social leaders. Sonia, a historical water-rights leader in her community, struggled to convince her constituents to support the proposal and felt personally vilified after becoming a delegate. In her words:

I’m sad because we are common people, and the people abandoned us and didn’t trust us with their vote. They elected us to represent them, but they didn’t trust our work and rejected it. The political parties also left us alone. Moreover, everyone criticizes us, saying ‘you got paid millions,’ this and that … All that effort you put in, the hours you took away from your family—that has no price. I’m not asking for compensation, but I wish people would realize that we really put ourselves on the line for the country, for collective goals. It wasn’t for us. (Sonia, Eco-Constituent. October 2022)

The political landscape became even more uncertain for the environmental movement’s demands after the plebiscite. In December 2022, the political system relaunched the constitutional process, blaming independents – including environmental activists – for the failure of the Constitutional Convention. Consequently, activists were effectively excluded from this new process and labeled as responsible for the Convention’s failure. The election of the new delegates gave control of the new assembly to conservative and far-right forces, who obtained enough seats to wield veto power over proposed measures. These delegates used their position to oppose comprehensive environmental provisions (Herrera Reference Herrera2023) and to push for a conservative constitutional framework (Heiss Reference Heiss2023). Although this proposal was also rejected by the citizenry, discussing critical measures such as the decommodification of water or addressing climate change became unfeasible in this new political scenario.

The aftermath of the constitutional process highlights not only the unintended consequences of using constitutional reforms to address climate change, but also the inherent risks involved. During the campaign period, activists faced unexpected criticism due to their role at the Convention, as well as the challenge of promoting demands tied to other contentious issues. Overall, the prospects for establishing a new constitutional order that addresses climate change and secures the human right to water in Chile appear more distant after the referendum than they did before the 2019 social upheaval.

Discussion and conclusions

This article examines the case of the environmental movement at the Chilean Constitutional Convention to address two interrelated questions on the capacity of social movements to engage in constitutional mobilization to address the challenges of climate change: Can social activists be politically influential during the constitutional replacement process? And is constitutional mobilization an effective strategy to address climate change? The answers to these questions reveal significant nuances in the potential and limitations of engaging in constitutional mobilization and highlight the relevance of considering the unintended outcomes of strategic choices.

Regarding the first question, environmental activists can be agentic actors within constitutional processes, as they influenced the content of the constitutional proposal by building their political standing. They capitalized on contextual opportunities and used their substantial representation to create further institutional opportunities and spaces to convey their interests. These conditions and tactics allowed them to introduce and approve key demands on climate change and water decommodification.

Assessing the constitutional mobilization of activists also highlights the negative unintended consequences of their strategic choices. The Eco-Constituents, lacking experience and trust in institutional politics, avoided forming pragmatic alliances with party delegates. This decision had two significant effects. First, it presented the constitutional proposal as a biased document that failed to represent society. Second, it weakened the support of institutional actors for the proposal. Both factors are crucial for securing the approval of new constitutions in Latin America, as they ensure broad political negotiations (Larrain et al. Reference Larrain, Negretto and Voigt2023; Verdugo and Prieto Reference Verdugo and Prieto2023) and the support from mainstream political forces (Eisenstadt et al. Reference Eisenstadt, Carl Levan and Maboudi2017; Negretto Reference Negretto2020). Moreover, activists were unaware that some of their actions – such as excluding the right and publicly criticizing other delegates – further eroded public trust in the Convention (see Larrain et al. Reference Larrain, Negretto and Voigt2023; Alemán and Navia Reference Alemán and Navia2023).

The response to the second question underscores that, while promising, addressing climate change through constitutional mobilization may ultimately prove fruitless due to two key challenges associated with drafting new charters. First, although the provisions championed by the Eco-Constituents were popular, tying them to a constitution also linked them to less popular issues – such as indigenous rights and abortion – which undermined public support for the proposal. Building alliances between activists and institutional actors might have mitigated public concerns, as seen in other constitutional processes in the region (see Deheza Reference Deheza2008), but activists chose to avoid this approach. Second, failing to pass a constitution can profoundly alter the political landscape and demoralize the movement. After the referendum, conservative forces that disregarded basic environmental norms gained prominence (Heiss Reference Heiss2023), further demoralizing the environmental movement and limiting its ability to mobilize against climate change.

This article empirically expands the analysis of the legal mobilization against climate change, which usually underrepresents cases from the Global South (Auz Reference Auz2024; Peel and Lin Reference Peel and Lin2019). However, this article also offers three substantial contributions.

First, it enhances our understanding of constitutional mobilization, a relatively underexplored form of legal mobilization (Blokker and Thornhill Reference Blokker and Thornhill2017; Della Porta Reference Della Porta2020; Eisenstadt et al. Reference Eisenstadt, Carl Levan and Maboudi2017), by highlighting the importance of centering the analysis of the politics of constitution-making (Verdugo and Prieto Reference Verdugo and Prieto2023). Unlike other legal mobilization strategies, such as litigation – commonly used in Europe (Vanhala Reference Vanhala2012, Reference Vanhala2022) and Latin America (Lehoucq Reference Lehoucq2021; Taylor Reference Taylor2023) to advance environmental issues – constitutional mobilization requires activists to become political players. That is, to navigate political negotiations and build social legitimacy through broad agreements with institutional actors, which are essential for ensuring the viability of constitutional processes and securing activist gains (Negretto Reference Negretto and Thompson2017; Son Reference Son2018). Failing to engage effectively in these tasks, risks undermining the entire constitutional process and jeopardizing activists’ goals.

This article also contributes to constitutional reform studies. Most analyses emphasize the importance of the political establishment in explaining the success of constitutional replacement processes (Deheza Reference Deheza2008; Eisenstadt et al. Reference Eisenstadt, Carl Levan and Maboudi2017; Negretto Reference Negretto2020), with cases where these actors do not hold significant control being exceedingly rare (cf. Suteu Reference Suteu2015). The case of the Chilean Constitutional Convention provides the counterfactual of a process where activists and independents dominated the process, illustrating the difficulties constitutional discussions encounter when political parties are a minority and do not lead the key negotiations.

Finally, this article contributes to theorizing the challenges social movement activists face when they gain access to positions of power. Activists rarely win elections (Amenta et al. Reference Amenta, Caren, Chiarello and Yang2010; Banaszak and Whitesell Reference Maillet and Martínez2016), leaving us with limited understanding of their ability to coordinate political actions within institutional spaces. The case of the environmental movement at the Chilean Constitutional Convention suggests that movement delegates struggled to separate their activist experiences – such as their distrust of political parties and the use of activist tactics to criticize peers – from their roles as representatives. This tension undermined the effectiveness of their constitutional mobilization. Future research should further examine the conflicts activists encounter when transitioning into institutional roles.

The negative and unintended outcomes of the Chilean case do not imply that social movements should avoid constitutional mobilization to address urgent issues like climate change. Rejection of constitutional proposals is relatively rare; only 6% of such proposals subjected to referenda have been rejected by voters since 1789 (Elkins and Hudson Reference Elkins and Hudson2019). Furthermore, several Latin American countries, including Colombia, Costa Rica, Bolivia, and Ecuador, have successfully advanced environmental protections through their constitutions (Couso Reference Couso, Hübner, Gargarella and Guidi2022; Gargarella Reference Gargarella, Hübner, Gargarella and Guidi2022; Mendes and Rached Reference Mendes, Rached, Mendes, Gargarella and Guidi2021). The Chilean case highlights the critical importance of building broad agreements among diverse political forces to make constitutional mobilization viable and underscores the risks of addressing climate change through constitutional processes without such consensus and by tying urgent demands to other norms.