James Thornton is the CEO and founder of ClientEarth, a leading environmental law organisation in Europe. Since its establishment in 2007, ClientEarth tackled world’s most pressing environmental issues such as biodiversity loss, climate change, and toxic chemicals using advocacy, litigation and research. ClientEarth now operates globally with offices in London, Brussels, Warsaw, New York and Beijing.
Before this, he was a Senior Lawyer for the Natural Resources Defense Council (NRDC) in Los Angeles for 9 years. His role involved setting up the citizens' enforcement project specifically working on the Clean Water Act under the Reagan Administration. In 6 months he successfully won 60 cases in federal courts.
Named by the New Statesman as one of the top 10 people who could change the world and one of the top 100 lawyers practising in the UK, James is at the forefront of utilising the legal system and advocacy to create real climate action. In 2016, The Financial Times awarded him its Special Achievement Award at the Innovative Lawyer Awards.
James Thornton is a Zen Bhuddist and started a meditation organisation for environmental activists called Positive Futures. James was born in New York and studied at Yale University
ClientEarth launches major climate change movement (April 2021)
A Conversation With James Thornton, Founder of ClientEarth – One of the World’s Most Ambitious Environmental Organisations (December 2020)
Michael Liebreich: Climate Lawsuits – An Existential Risk to Fossil Fuel Firms? (September 2019)
Click here for Edited Highlights
Michael Liebreich: Before we start, if you're enjoying these conversations, please make sure that you like or subscribe to Cleaning Up, it really helps other people to find us. Cleaning Up is brought to you by the Liebreich Foundation and the Gilardini Foundation. I'm Michael Liebreich, and this is Cleaning Up. My guest today is James Thornton, founder and CEO of ClientEarth. He uses the power of the law to hold governments and corporations to account over air quality, climate change, and other environmental issues. Please welcome James Thornton. So, James, welcome to Cleaning Up.
James Thornton: Thank you.
ML: It's a great pleasure to have you on the show here today. Tell me, what are you working on at the moment? Give us the short version of what's keeping you busy right now?
JT: Well, Michael, I mean, it's a big world out there and there are a lot of environmental problems, right. So what I'm spending my time on as the as the CEO of ClientEarth is taking our organization global. So I started in Europe, in 2008 and it's now grown to 260 people, about 170 of them lawyers, and we've got offices in London and Madrid, Brussels, Berlin, Warsaw, Beijing. And this week, we open in Singapore, and very soon in Los Angeles. So I'm spending my time on making sure we have a coherent global program on climate change, and protecting nature and people. And then of course, I do what the CEO of any charity does, I spend a lot of time fundraising.
ML: Right, well, I was gonna say if that was what you're doing this week, and it was like, well, you know that probably will get you through till about Tuesday evening. So what are you doing the rest of the week, but that's a big agenda. And of course, on the fundraising, the fun fact that not everybody listening or watching this will know is that you are funded at the moment by David Gilmour's guitars, that fantastic sale of his guitars, correct?
JT: He is, he and his wife, are amazingly generous people. And so they decided that they were going to sell his guitar collection about two years ago. A very big collection, 127 guitars, lifetime of guitars, really.
ML: And this is David Gilmour of Pink Floyd, for those who have…
JT: Yes, of course, Mr. Pink Floyd, the great guitarist. And they decided to make it a charity auction. And they're particularly interested in helping to reduce climate change. So, they took the guitars to Christie's and Christie's thought the collection was going to be worth about a million or a million and a half. And David did a little video, which went viral. And he said, you know, we're selling these guitars to fund the fight against climate change. The best organization in the world, highest leverage to do that, in our view is ClientEarth. Please come to the auction. And why should you come, it’s the most important problem of our time… Let me put it this way. We need to make sure that we have a future in which guitars can be played, and songs can be sung. And it's a beautiful way of capturing the future that we would like to see.
ML: That really is, and narratives matter. And in fact, the funny thing is, we're on about I think this is Episode 45. And, and it's the second time that David Gilmour has been involved in some way, because Episode 11 was a guy called Jon Dee and Jon Dee organized, he's a great environmentalist and a broadcaster and an incredible guy involved in all sorts of things, he's protected more trees than you could imagine. But he also organized the Rock Aid Armenia concert and single. They did Smoke on the Water, and so on. And David Gilmour played on that as well. So quite incredible. Just in 44 episodes, he's already cropped up twice.
JT: Very, very generous, very smart, very generous. And he probably, as I say, decided that money was going to go to climate change and then ClientEarth. And because he made that video, and it went viral, Christie's estimate turned out to be way wrong. The guitars sold for $21 million. And after Christie's took <inaudible>, he donated the rest of it to ClientEarth and that is amazingly generous. It's the kind of gifts that universities get, but not a relatively small environmental groups.
ML: Well, and so let's talk about the model of your environmental group because it's very specific. I mean, you've already said you’ve got 170 lawyers. So what is your theory of environmental action? Because it's not getting hundreds of thousands of people out marching on the streets? Or, you know, but what is it exactly that ClientEarth does and what were the seeds of it?
JT: What's different about is that it's a group of lawyers. And the idea is that law is an astonishingly powerful tool. It allows you, if you know how to use it creatively, to write the rules of the game. So if you're working in the parliament in Brussels, or London, or, indeed, in Congress, if you can get anything through Congress these days, what you do, by writing legislation, and helping write legislation, is move the rules of the game in the direction that you want them to go. And then you can enforce the law. So I'm sure we'll talk about some examples where we sued the UK Government successfully, we’ve sued companies successfully, and make them do what the law says. Because both governments and companies often like to forget what it says, particularly when it comes to the environment, if no one's watching. So, it's a very powerful, powerful tool. And, you know, I don't say that you use it as opposed to other methods. The way I see it is people marching on the streets, people working in corporations for environmental change, people working in journalism for environmental change, whatever it may be, the kids going on strike on Fridays, all of these are agents of environmental change. But when you add law to the campaigning, and so on, it adds enormous power, potentiates all of that power. And in Europe, until we started doing this, there were very few lawyers working on environmental law. And what it meant is that civil society, about the environment was really highly underrepresented group. So, governments and companies have very sophisticated lawyers working for them, but people and the environment didn't. And that's the big gap, it was the missing piece that we will filled. Where did it come from? Well, I started doing this work in the 1970s in the United States. And there, there was a civil rights movement, that was quite powerful, because there was apartheid. And lawyers got involved, because if you were a person of color and asserted your rights, you would be arrested, thrown in jail. So, lawyers got involved to get people out of jail. And then more and more, they became embedded in the civil rights movement. And they started to take a strategic role. And then to see how we can write the laws. So, the Civil Rights Act. We can bring strategic, big cases, which they did. And those skills that were developed there, then got carried over into the environmental movement, which was born some years after the civil rights movement in the USA. But since there was no apartheid in Europe, there was no need for a civil rights movement in the same way. And therefore, the environmental movement, didn't have that precedent in the EU and went in the direction of campaigning. So, my thought was, we could add it and, you know… add it like yeast and bake a better loaf of bread. And that's, that's what seems to be happening.
ML: That is so fascinating. Because you can actually expand from that story. And you can draw a thread. And if there's somebody has done this in a book, I would absolutely love to, to know about it, and to read it. But you can actually draw a thread from the abolitionists, in the UK slavery abolitionists, through to the women's suffrage movement, through to the human rights movement in the US, through to LGBT rights, now through to the environment. The techniques from the fundraising to the use of marches and, and civic society through to direct action, you know, civil disobedience through to the piece that you're talking about, and that you've dedicated your career to, the use of law, you can actually draw a thread right through those, can't you?
JT: Well, that's right. And each of them learns from the other, you know, and a girl in the women's rights movement in America was talking a couple of years ago saying, Wow, the gays have been so successful in the last couple of years, we really need to study the techniques. And I said, smart idea. Absolutely. Let's learn every one of us from the other one. And that's how the techniques evolve.
ML: Right. And so, this approach of using lawyers, when I started New Energy Finance, because my career before then was really nothing to do with, you know, sort of environment, the whole kind of environmental, justice, environment was not what I came from. I was an engineer and a business person. But early years of New Energy Finance, I became aware of, particularly in the US, the NRDC, that had lawyers was doing this and that's where you started, was it not?
JT: Yes. So I started at NRDC in 1979, actually, so it was about eight and a half years old then, still quite a small organization. And then I started a project there is in my 20s, in the New York office where Ronald Reagan had stopped enforcing the environmental laws. And that was a decision, they were just not going to enforce. And they were going to let companies know. So, they did, and the company stopped complying. And I started a project where the question was, could a tiny group of people, so it was essentially me, a chemist, and an assistant, could we enforce a law. So, we picked the Clean Water Act, a very important law. And we brought the cases the justice department should have been bringing, and we won them all. I started with 60 cases at once. And eventually we embarrassed the government, the federal government into doing its job again. And then I went to LA and set up the Los Angeles office of the NRDC, but NRDC is one of the couple of places in the US where these techniques were first developed. And then by coming to Europe, interestingly, they changed, you were talking about the evolution of the techniques, the basic core of using law to protect people's health, and the environment remains the same. But because the social context is quite different, some of the techniques need to also, the US is essentially one big legal system. And I got to the EU, I mean, obviously, the EU, was, well, the UK was part of it. So it was 28 countries plus an EU system, 29 systems. So if you wanted to work, you had to be skillful about moving from system to system and looking for leverage in EU law, but then also at the member state level. And what that meant was that I had to become adept at developing partnerships with organizations in countries where I had no office. But there was an important job to do, stop a coal fired power station, clean up the air, save a forest, and so on. So, what's developed in our repertoire, then, is also this very central part of the way we work is to is to work with other organizations. And we have memorandums of understanding with about 200 other NGOs at the moment, and that we have partnerships with. And indeed, we have a memorandum of understanding with the Supreme Court of China, and the federal prosecutors of China, and the Ministry of Environment of China. So, these partnerships can be varied and allow you to go into places that you couldn't be otherwise in and find ways working in partnership to exert leverage.
ML: Okay, so let's come back to China, because that's a very, that's very interesting, very specific, though. And you already said that you've got these partnerships, and some people will be going well hang on a second, aren't you supposed to be holding those sorts of players to account? But before we do that, let's talk about some of the stuff… the most famous case in the UK, at least. And then we'll, we'll come back to China later in the session. So, in the UK, your great win was on air quality, was it not?
JT: Yes. So here's how that happened. You know, so I was starting up in 2008. And no one had done this type of work for the environment using law systematically in the EU. So, I had to demonstrate first principles. So first of all, I had to learn EU law and become a solicitor in the UK as well, those I did along the way, you know. And then then you say, okay, can citizens actually enforce the law? Will that work? You know, within Europe, no one's done that. How do I make that work? So, first of all, I found a law that I thought would be enforceable, which is the Clean Air Law that applies to all the countries because it had standards for what the pollution levels should be, you know, numerical standards. And they had a timetable by which governments had to make the air meet those standards. So, I thought, well, this looks pretty enforceable. And then the issue had to be one that was really important. So not just a theoretical type of issue, but, and I was amazed that the air was so bad in Europe, largely due to diesel cars and other vehicles. It was much cleaner in the US because of petrol rather than diesel. So, here we had an issue that was affecting the lives of 400,000 or more people in the EU who were dying early of air pollution every year, an enormous number of people. So, issue a great moment, affecting human health and environment. Looks like I can enforce it. So, we brought a case. And indeed, we started in the UK, beat the UK Government. And then we had to go all the way up to the Supreme Court. And the UK government was being quite difficult to bear. So, in 2010, they had to meet the standards for toxic poison gas. And they didn't. So we sued. But before we sued, we wrote this nice letter, because I, in addition to being a member of the bar in the US, I'd become a solicitor in the UK. And I learned that in the UK, you write a nice letter before you sue somebody. So, I wrote a very nice letter that said, well, to the government, saying, surely you know that the law requires you to meet these standards, and no doubt, you have a plan to meet them by the right date. So please tell us what that plan is. Otherwise, we'll have to sue you. So they wrote back and it was amazing letter, they said, Well, you write about the data, you know, you're using our own data, and you write all these people are dying, because it was 60,000 in the UK, early every year. You know, you write about that. But we have no intention of complying to at least 15 years from now, because it’s not convenient. And they took that position all the way up to the Supreme Court. And in the Supreme Court, they actually went so far as to say to the Supreme Court, you know, you, the Supreme Court, may not order us to comply with the law, which is a remarkable thing. So here we have the government saying that in the Supreme Court, and one of the judges in the court, turned to us and said, well, you've heard what the government has to say. What do you expect us to do? We are only the Supreme Court. So it's a wonderful question. And so obviously, it's their job. And we said to them, roughly, look, if you let the government walk in the court today and say, you can’t order them to comply with the law. You know, this isn't just about environmental law. This is about all law. You know, it's family law, military law, commercial law, it doesn't matter. If they can walk in and say, the Supreme Court, we're only going to comply when it's convenient for us. You're no longer democracy and rule of law to government by fear and victim. And the Supreme Court very nicely, then gave us an injunction and required the government to come into compliance with the law. Now, they've been slow, we've had to go back twice and enforce the injunction twice. But in London, now, there are plans, good plans, and plans being developed all over the UK, and they never would have been developed. And the air would never come to compliance. Because when a government says we're not even going to start looking at it until 15 years from now, that means, you know, two generations or politicians, right?
ML: I can confirm to you that those plans would never have been brought forward and never been actualized, because I was on the board of Transport for London.
ML: And I got on a board in 2012. So I was sort of watching what you were doing, as you say, very familiar with, you know, the use of law in the US, skeptical about it in the in Europe and in the UK, but watching, and actually I was active on air quality issues with the great Simon Birkett. I acknowledge that he was very kind and gave me a little award for… because what I did is I had a, I held a hackathon for cleaner solutions, and particularly around data. So, I was pushing using what little influence I had at the time to get air quality data into the public domain. Because my theory of action is, once you provide information, people tend to act on it becomes much harder to ignore, once you spread information widely. So, I was busily trying to sort of spread information. And you were taking it and weaponizing it in the courts. But I can assure you that when I got onto the board of Transport for London, there was great consternation and worry, because of course, it was London buses and London taxis that would have extra costs if they had to comply. That was one of the big sources of the NOx, that you that you pointed out was that was causing the trouble, was the pollutant. And I don't know what proportion comes from buses and taxis. But you know, TFL is also the regulator of have all sorts of other activities, the traffic light system… And we were very worried about how much it might cost. And there was this sort of negotiations going on behind the scenes about what would that hit London's budget? Or, you know, if the government said don't, we're not going to do anything, and we then planned accordingly, who would actually end up having to pick up the tab if that if that damn James Thornton wins. What are we going to do?
JT: Fascinating. I of course, didn't know anything about that. But that's really interesting. And you have done… London is doing quite well, you know, in its plans and bringing in clean air zones, and it's becoming a model, and then all the taxis, the new taxis are being required to be electric. So that's a marvelous thing.
ML: Indeed. And sadly, I can't claim to have pushed through the electric taxis that was actually all of that was put in place prior to my joining the board. In fact, it's quite, you know, the wheels were set in motion, actually by Isabel Dedring, who was the deputy mayor at that time, under Boris, the buses, I'm very disappointed with how slow we've been to get electric buses, I'll be honest, I was pushing much, much harder. And there was a complete, I shouldn't use the words in this company, but there was a complete smokescreen about, Oh, no, you know, it will Euro6, Euro5 will be fine, then Euro6 will be fine. And then of all, we mustn't do anything because there might be hydrogen buses, we had some experiment going on in east London... I mean, it was just and there was a consistent effort to do nothing on buses, which is very, very frustrating to be quite honest, we should be much further along with electric buses already.
JT: Well, and I mean, Boris decided the<inaudible> to buy diesel buses…
ML: It was a disappointing decision. Before my time, but as I say, you know, as soon as I arrived, I started saying the solution is electric buses, and that will really make a big difference. And it's very slow, still very slow. And in fact, I don't think that… right now the plan is to have the last diesel bus in London removed in 2038. Newly reelected mayor Sadiq talks about London being net zero by 2030. But actually, the bit he controls which is the buses, he’s got no plan until 2038.
JT: Interesting, I didn't know that. Oh, well.
ML: You still have work to do, James, you still have work to do.
JT: There’s plenty of work to do. Right after that case, to show you law you can use law strategically and leapfrog from one thing to the other. We hoped to get the UK case up to the European Court of Justice, which it did go because the Supreme Court of the UK put it up to the European Court to say, what sort of remedy do we have to give because no one had ever, no court had ever been required to give a remedy. And the European Court very nicely said, essentially, you have to every nation's Supreme Court has to be willing to give really serious penalties or injunctions to enforce this.
ML: Didn’t this revolve around the question of coming into compliance as quickly as possible. And then the question is, is that as quickly as technologically possible or budgetarily possible or in human <inaudible> terms? Or… What does it mean is that?
JT: Yes, well, and in this law, interestingly, the law itself takes budget out of it, the Treasury refused to take budget out of it, and some of the papers that we showed to the court in enforcing the injunction show the Treasury was getting in the way and slowing things down. But what the law says, that particular law, is somewhat unusual in saying that there are these health standards to protect human health, otherwise, people die. And therefore, the Treasury can't make financial excuses. They just have to do it. Now. It didn't make excuses, it sort of slowed things down. But anyway, so we got into the European Court, and then we won there. And then we immediately went to Germany, the home of the diesel motor industry, and we brought cases in Stuttgart, Dusseldorf, Munich, and the home of BMW, Mercedes, Porsche, Volkswagen, and we won all those cases. And the judges there were more activist really. And what they did is they issued bans for diesel vehicles in the centre of those cities, which really drove the German motor industry nuts. So, cases went up to the Supreme Court of Germany, we won there, Angela Merkel, who's generally really quite good. But German motor industry powerful. So, she got on the television and said, well, this case about diesel cars is not really that big a deal. And we thought, wow, if the Chancellor is saying it's not that big a deal, it's even bigger than we think it is. So that was very effective. And then within the next 12 to 20 months, something like that, there was a tanking in the number of people in the market who bought diesel vehicles in Germany. And there's about 22% less, something like that. And that Green Fleet magazine, a magazine you probably don't read, but is a is an industry periodical for people who want to make fleets electric. And they choose the 10 people a year who have been most effective in driving fleets towards being green. And I was very, very pleased, I was number six and Elon Musk was number eight. And that's the only time I've ever got to beat Elon Musk in anything but it was there was a lot of fun. And indeed so what you see there is another extension of you've shown them that citizens can enforce the law that can have a health impact. And also can have a market impact, driving people away from dirtier to cleaner things, which then leads to the big project of trying to electrify the culture and making a transition away from fossil fuels. So, therefore, a big climate impact. I mean, some of our advisors, a physicist, for example, says that he thinks that all of these cases, and we've now done these cases in 20 countries in the EU, will be responsible for moving people away from fossil fuel vehicles probably about five years earlier in the end than would have happened, you know, because once you start winning these cases, and writing's on the wall for diesel vehicles. And it was in an interesting way, it also helped the German motor industry, because they were very slow to get onto electrics, they were making money on diesel engines, and they were just kind of keep pushing out as far as they could. Meanwhile, the Chinese were pushing as hard as they could on making electric cars. And they were getting further and further ahead. So by forcing the Germans to switch their attention, we've actually, without quite thinking about it originally, helped the German motor industry to not be beaten by foreign competition.
ML: And I think it is quite extraordinary how quickly things are moving as I remember when you won those cases, and particularly one in Stuttgart, because when I was a student, I put myself through university working in the factory for one of the Daimler factories, and Stuttgart is Daimlertown, there's a huge Daimler star on one of the buildings, and that's the kind of thing, that is the landmark. And the idea that anything made by Daimler would be banned from Stuttgart city center, I mean, this was just, it can't have been more shocking. So in terms of accelerating that transformation, it certainly was easier, even from my time on the board of Transport for London, it was easier to engage with senior people who are, you know, Ill-informed about climate much easier to engage on, on air quality issues directly than on climate issues, there wasn't, there's no question of that.
JT: Well, that was actually also one of the thoughts behind doing that, which is climate in 2008, was less talked about than it is now. And it's intellectually harder to grasp for anybody, you know, it's a harder issue. Whereas if you could talk about, you know, this hurts kids, you know, and, and it really does. And then there was a lot of medical research that had been done. But a lot more was done after those cases, sharing the terrible health impacts on kids of how their lungs are not growing to a typical size and all that. And, you know, it became a relatable human problem. Something that even though it was an invisible gas, but you knew, you're breathing it, and kids were breathing it. And what was great is that then, parents groups started all over the country. And all of the environmental and health organizations, which had not had it as an issue, picked it up as an issue, so that suddenly all across society, people were demanding this change. And to me, it was a very good example of what can be potentiated by a successful, and lucky in a way, how much attention caught a lawsuit or series of lawsuits. And that could be an example for then what happens with climate change, it's a matter of people taking it into consciousness and realizing that if they start demanding change, change will happen.
ML: It is also important for those watching or listening now to remember that going back to 2008, that was not obvious. Now, it is obvious that air quality in cities is a huge issue. But even just a few years ago, I had a conversation with somebody about the third runway, the Heathrow third runway, a business person. And I said, well, what's your plan for air quality? And after lots of toing and froing, it became clear that he simply didn't believe that there was an air quality issue two, three years ago, and of course, we've just had the tragic find the coroner's finding in the UK. The little girl, Ella Kissi-Debrah, there's a little girl who died and the coroner said it was air pollution, which is very rarely… I don’t know if it’s ever appeared before on a on a death certificate. Tragic, but it is part of a long-term sort of raising awareness about the absolute seriousness of these issues.
JT: Very much so, and her mother was very courageous because she's a hero really. Here the daughter dies, the daughter had severe asthma and lived like most poor people do in a highly polluted area. So, her asthma was exacerbated by the air pollution. And on days of high air pollution, she had terrible asthma. And eventually, as you said, she died. And the coroner, the first time didn't mention it. But the mother was a hero and said, you know this, we've got to have a second inquest into this death. And in the second inquest, the coroner looked at all the data, we supplied some of the data, and many other people joined in supporting the mother and the mother had great lawyers. And the result was that the coroner came to the conclusion that that there was a causal connection between the air pollution and the death of the girl. And that had never been shown, you know, on certificates, death certificates of people who smoke and die of lung disease. The death certificates don't say they died from smoking. They say they died of lung disease. So this is that level of change, where the coroners are actually pretty willing to say, she didn't just die of asthma. But the asthma was because of the air pollution. So she died of air pollution. And that really will change how air pollution gets regulated. And, of course, it's not just in the UK. And it's kind of not just in Europe, it's even worse in lots of other parts of the world. And people there are waking up to it too, and these cases in Europe, were helpful in that regard, because they got so much publicity. So lots of activists in Asia are working on it. They already were but again, more so..
ML: You won… the famous UK victories you won in the European Court of Justice. But the UK is no longer in the EU. So those, those judgments, do they still hold? And what happens after Brexit? I mean, do you now say, well, we don't need to, you know, we'll do our, we’ll have our cases in the EU for EU countries. What mechanisms are there, or will there be in the UK, in order to pursue these sorts of lawsuits? This came up actually, in our, we had an episode with Angela Francis, a brilliant economist from WWF, and we talked about at that time, it was just after the final exit of the UK from the EU, would there be a legal process in place that was robust that you could use to pursue these sorts of cases and lawsuits?
JT: It's a great question. Now, the answer is yes, there is one. And it's not too different here from the way it was because the air quality law was essentially taken over. I mean, the various EU laws were essentially taken over. And they weren't just EU laws. I mean, the way law gets made in Europe is the UK, when it was a member, and all the other countries go to Brussels and then they agree on the law. So, what some politicians like to say is we have we had laws rammed down our throats, simply not true. We had no laws in the UK that originated in Europe, we didn't help write and then we didn't agree to. So as with the air quality law, we agreed in Brussels, it comes back and then the parliament in London passes. So Brussels didn't just dictate stuff, the parliament in London passes the law.
ML: But the appeals process used to be to go up to the European Court of Justice, what is the appeals process? And with that, the law might be there. But how do you apply it now surely has changed considerably? Has it not?
JT: Yes. Well, the way it works is, again, as it did, so you have three levels of court in the UK, you know, the trial court, the appeals court, and then the Supreme Court. But now it stops at the level of the Supreme Court. So, there's no European court to go to. Now, that in theory could be okay. I mean, if the if the law isn't rewritten and weakened, but remains good that's number one. But there are threats that the law will be weakened, that's a serious threat, that the air pollution law will be weakened. And the other thing is, the government has a proposal underway to make it more difficult for citizens to go to court in the UK to enforce the laws when the government breaks them. So, the government is looking to make it harder… to partly close the courthouse doors so that people can't hold it to account even when it's breaking its own laws. Now, that is not what you want to see in a democracy obviously. You shouldn't be worried about getting sued by your own citizens who say, look, you the government have a duty to everybody. I don't make any money out of this case. I'm bringing this case on behalf of everybody. So go pay attention and comply with the law, you shouldn't worry about that. If you're complying with the law, that you only want to bring those restrictions ind if you intend to break the law and want to get away with So, that is a very dangerous tendency in reducing access to justice. And that's going on right now.
ML: Also, I wish we had our guest from Episode 25. The first episode this year was Lord Goldsmith, Zac Goldsmith. And hopefully, I'm trying to remember whether we discussed exactly this point. But if we if we didn't, then maybe next time I see him I'll seek his views on whether that is likely to happen or not. But it does raise an interesting point, which is that you're using the law and treading a path that is not what… the average environmental activist out there marching and sort of vilifying business and not generally, not using the same tactics. So, is there a sort of left-right, divide here? Because I'm a conservative. And I think that what you're doing is absolutely, you know, brilliant. I can't see how any conservative could object right, the polluter should pay, and the law should be upheld, without, you know, without fear or favour. People should, you know, adhere to the laws. So, this is an entirely conservative approach, in my view. Do you agree with that?
JT: Well, I'm pleased to hear you say that, because I believe that it's a conservative view. I believe it's a progressive view, you know, I really don't think that it has anything to do with politics. Yeah. You know, if you believe in a democratic functioning society, where people actually want to see that governments take care of the interests of the people, then as you say, you should want good laws, and you should want them to be implemented. And, you know, we work with people from all spectrums of political party, all the parties in the UK, and in other countries, anyone who wants the environment and human health to be protected. Zac is a good friend, for example. And so, I see it as very much non-party political. There was an example in, in Poland, where we were working to protect the last of the really great Ice Age rainforests. And we put together called we were doing legal work, we put together with others, a coalition of citizens groups. And it was very interesting to see that the forest had nothing to do with politics. People believed in the patrimony of the forest, and people in the coalition, it was the broadest coalition I ever saw. On one end, we had people who wanted to see the restoration of the monarchy. And on the other end, we had anarchists, but they all completely agreed that we need to enforce the law to save the forest. And that was quite inspiring.
ML: Tremendous, I think so they agreed that we should see the restoration of aurochs, if not the monarchy.
JT: Yes, indeed.
ML: Moving on to specifically or more, more directly the issue of climate. I wrote something at the end of 2019, so before the pandemic, those happy, innocent days. And it was about all of these climate lawsuits, and there's been something, you know, approaching, I think it was… I've got the number here somewhere… It was, at the time 1,380 lawsuits, also includes counter suits, and so on, but 1,380 procedures and processes around climate. And the question I asked myself and asked in the piece was, are these irritants? Is the net effect going to be to slow down, make more expensive, the activities of the oil and gas and coal sector? Or is there something existentially challenging? Is it really possible that all of the disclosures from these lawsuits and the precedent set by these lawsuits actually is of existential threat to fossil fuel, producers, distributors, users, etc?
JT: Well, you know, it's a great question. And I think they have a great role to play. And I should start by saying that there's a broad spectrum of what I think of as climate lawsuits. So, I'll give you a couple of examples. I mean, in Poland, we've stopped a new generation of coal fired power stations by bringing cases against those investments in the coal fired power stations, arguing that they weren't meeting environmental permit requirements and environmental impact assessment requirements. Basic environmental cases could very much intended to stop coal plants in order to get a climate benefit. Then, more recently, we've brought a case, which was purely a finance case. So, over the last five or six years, we've put together a team of now 15 lawyers who are company and finance specialists, so securities lawyers, banking lawyers, insurance lawyers, and so on, using finance law to try and stop climate change by essentially moving the money away from fossil fuel investment to clean investment. And then there are many ways to do that. One of them is to see these power plants. Another was to use a shareholder case. And this was an interesting first in the world lawsuit that we did a couple of years ago. And we brought again, Poland, but we bought shares in the company that was going to build what they were calling the last new coal fired power station in Europe, which was kind of a backhanded compliment to our work. And, and then we produced an economic study with the help of a carbon tracker, third party, who showed that this investment, purely an investment terms, was a bad investment, because you were investing in a stranded asset, and it wasn't going to make money, or it would lose money, even in the Polish energy mix. So, when the company didn't buy into that, we sued on the basis of that analysis in a straight corporate law case, we sued the officers and directors of the company personally, and said, you're violating your duty of care to us as shareholders. And what was interesting is that the very conservative business newspapers in Poland, treated it as a very serious business case. It wasn't crazy environmentalists bring case against powerplant. It was investors question whether coal is any longer a good investment. Well, we won the case. And the good news was that the not only did we win the case, but the next day, the share price of the company we beat went up 4%. So, the market was on our side. And this to me is a very interesting, new and innovative climate change case. Now there's another group of climate change cases that you'll be pointing out, which include ones that are constitutional and potentially kind of have a lot of power. There was one in Germany, just in the last couple of weeks, in which group of young people said German government wasn't doing enough. And the case was successful in the highest court of Germany. And the court interestingly, what the court said is, the government hadn't spelled out carefully enough, how it was going to reduce its emissions. And it seemed to be putting too much emphasis on waiting and waiting and doing things later, which would be unfair to future generations.
ML: This is the 2038 shutdown of coal, which was deemed not fast enough.
ML: Similar to the 2038 removal of the last diesel bus from the streets of London.
JT: Right, perhaps we can get somebody in front of a German court. But the value of this case is large, because the German government immediately responded by revising its climate plan…
ML: Brough it forward to net zero in 2045, as a result.
JT: Yes, that's exactly right. So, the result of that will be a substantial change for fossil fuel in Germany.
ML: Right. So you've got in Holland agenda that brought a case, I don't know if you were involved in that, that where the young people said that Holland's not doing enough, Germany now not doing enough. The finance cases that you've talked about, but there is a different kind of class of cases that says that the oil gas and coal companies have caused harm and are causing harm and must pay either something substantial… must either simply be shut or must pay such substantial damages that they're effectively shut. Do you just do those cases have merit? Or are they irritants? If they’ve broken securities law, then there'll be done under securities law, they'll pay a fine. But broadly speaking, life will continue. I guess that's my probing for whether there's something kind of different about those cases.
JT: There is in that they're using a damages theory. Whereas the other cases, like our air quality case, we're using a theory that said, you need to correct your future conduct, rather than to go back and pay damages for things that were done in the past. Now New York City and New York state are trying a securities claim. And we'll see what… one has failed against Exxon, but we'll see how they go. I don't think they're irritants, I have no hesitation in saying that they're good cases. The question is whether or some of them are good cases. It depends on the case.
ML: Just to be clear, when I say irritants, I don't mean, frivolous, I just mean that they'll raise the costs. And everybody will simply be more careful about what they say and what they put in the disclosures and so on. So it raises the cost of doing business but doesn't existentially threaten the continuity of that industry.
JT: Yes, well, they would have to be very successful to existentially threaten the industry, you know, the model of them is, or the cases that were brought in the United States quite successfully, took 10 years, but successfully against tobacco companies, for addicting people to cigarettes, you know, and misleading them. And those paid out billions in damages. And it hasn't reduced smoking, as far as I know, what it did do was, I mean, it benefited the states who had to pay for people's healthcare. And it shifted the cigarette companies’ attention away from the US market for advertising more to Third World countries. So, it had impacts but not necessarily the full suite.
ML: In the example of cigarettes where it ended up in the US and Canada, but mainly in the US was a sort of devil's bargain. People would continue smoking, but because that would then pay that would then yield these big payments and they’re ongoing payments, which would fund health care. And the question for climate is, well, if the same thing happens, and they're just big, ongoing payments, but as long as you keep polluting and emitting, you won't get to net zero. So it's not… that solution is not compatible with net zero, is it?
JT: Yes, but depends on the judgement. So, if the judgement was Exxon had to pay out 100 billion, and the rest of law was moving it down, that you could still close it and get the money out. The question is whether court will go so far as to say that they are liable. Because we were saying in the Ella Kissi-Debrah case that the coroner did say her death was caused by air pollution. Now, it's going to be much more… it's a much longer causal chain to make for a judge to say that Exxon is liable for the flooding in North Carolina, or for the fires happening in southeastern Australia. The science is quite good on climate attribution now and getting better. But it's nowhere near as close as it was, in the Ella Kissi-Debrah case.
ML: It never will be because these things are statistical. There's a lot of noise in the system in weather… And so you know, you could say that those fires became 20% more likely, the trouble is there can be another scientific paper next year that says, oh, no, it's 28%. And then one year after says it's, it's 15%. And that's where the science is going to bounce around.
JT: Just in terms of in terms of the science it’s not bouncing around, it's all moving in one direction. And what you're getting is that since the climate is changing. Events like fires floods that were, for example, happening that were so called once in 100-year floods, or now it's once in 1000-year floods or fires are happening not once every 1000 years, per once every three years.
ML: But it's still statistical. And as the granularity, I do agree that it's moving in the sense that, you know, we're seeing the footprint or the fingerprints of climate in more and more places, but it’s still only a statistical fingerprint.
JT: Well, okay, but that was that was the case with, with cigarettes, too, with any particular... But listen, I don't..
ML: Nobody has a nobody has a death certificate saying this person died from smoking. We only have one that says they died from emphysema, and we know that correlates with smoking, and then they came to a big out of court settlement.
JT: Yes, exactly. But what I can say on this one is I'm not putting my time into those cases, you know, so I'm, I'm doing other kinds of cases. I’m doing other kinds of cases myself.
ML: I'm challenging not because I want a particular outcome one way or the other. It's in the interest only of finding what you thought about that the…
JT: I think that they are today is that there will be people who keep doing them. And they're also easier to bring if you're a government. So if you were the government of the state of New York, for example, and New York is going to be as it will, and Manhattan is quite low lying, you know, there will be… as is London, as are many places, and there will be storm surges, there have already been fairly significant ones that will get worse and worse. So if you want to seek some compensation from oil companies who do have deep pockets, in order to build yourself 20 foot high sea walls, you might then bring the case, and you will also have the wherewithal to do it, you know, a small charity, no matter how clever our lawyers, doesn't have the resources to bring such a case against Exxon. But governments will and do, and there are a number of governments in California that have brought similar cases, and, you know, many of them will fail. But I think at a certain point, a judge is just gonna of say, well, look, the connection is so obvious, you know, I'm going to give you, yes, in New York, you're not claiming for all of the money of Exxon, you need 100 million to build sea walls. You know, I can see that's reasonable. So, I think that will happen one day.
ML: And I think, without sort of, without pointing at my sources, because I worked on, I talked to lots of people across all, you know, all industries, including the extractive industries and oil and gas, and even coal. And I can tell you that there is concern, it does definitely increase the cost of capital, it does increase the difficulty of doing business. And there is real discussion about that. Because there's this kind of lattice of cases. And it's kind of like, well, we have to claim that we didn't know about something in that case, but then in that case, we have to claim that we were really being diligent vis a vis of our investors, so we have to explain that we did know about it, and we did take it into account. And then of course, you can't say anything that's inconsistent. So there…
JT: That's very interesting. One just should recommend moving the assets into renewable energy. Seriously, you know, not sticking in that matrix.
ML: And I do believe that that's one of the drivers for particularly the European oil and gas companies doing exactly that. Well, I just, I promised that we'd get back to China. Yes. Because you mentioned that you have these agreements with the Supreme Court, the Court of environmental, you're gonna have to repeat…
JT: The Supreme Court and the federal prosecutors at the Ministry of Environment.
ML: Why would you have agreements with them? Shouldn't you have agreements with people trying to hold them to account there are strong environmental laws in China that are routinely ignored by the well connected, are there not?
JT: Well, I mean, that's really why we're there. So the remarkable thing was, I got a call-in about seven years ago, where I got invited to a meeting in Beijing, to meet a group of Supreme Court judges. And then the guy who is head of the Environment Committee, and they are in the Congress, and number two person at the Ministry of Environment. And the reason is they wanted advice on a law that they were drafting to give Chinese environmental groups the right to sue polluting companies, including those owned by the government. And they said, we've done our research as the Chinese do. And you're the only guy who's brought these cases in both Europe and the United States. So, you must know what it takes to make a system work. We're keen on making our system work. You tell us how we need to design it. So Chinese NGOs can win these cases. And I said, very happily, you know, there are six elements. We'll get to them in a minute. But first, I just want to say how remarkable it is, I think, that China is bringing in a law to allow Chinese NGOs to sue state owned companies who are polluting, and this is revolutionary. And the senior judge said, Mr. Thornton, revolutionary is a big word for us. And that was wonderful, because, you know, we had a human connection straightaway. And I said this, okay, we laughed, and then, and I said, but why are you doing it? You know, what's behind this? You know, and before I get into how you do it, why? They said, well, it's really clear. I mean, we need to bring a very high level of enforcement to China, in terms of air pollution, water pollution, the soil is polluted, the food is polluted. We have the biggest carbon emission in the world, all of that has to change very rapidly. And they said, you know, we're very aware of this. And it's an unintended consequence of something that we were doing that was good. We wanted to bring the largest number of people up from poverty in history. And we've succeeded in doing that. We've brought something like 450 million people up from poverty in the last 50 years. And we didn't realize that we were trashing the environment. It was stupid, but we didn't. And now that we see it, we're doing it. We have to move rapidly to do something about it. Partly because it needs to be done, partly because we have a very long horizon. And our job today is to make sure that there'll be healthy people here in 2000 years. Like there were people two thousand years ago.
ML: But also partly because they were coming under significant civic pressure. And we hear about all the time, but they have actual demonstrations. And it's very interesting, because you also see that in a place like Turkey, that, you know, there is, you know, there are demonstrations about the most recent… I actually got inadvertently teargassed in Istanbul once but the reason that they will have been a riot, it was actually a holdover from the day before, but it was still very powerful in the air. And that was because of the decision to destroy a park. So, it matters to people, it does get them out on the streets. But how many times has that Chinese law being used by Chinese NGOs to sue state owned corporations, or either regional or central government?
JT: Yeah, so well, it's being used, and by the way, they were very clear on that. So, I got through my first two reasons. Reason number three, that they said, no quite alright, it was exactly what he said. They said, Look, and the third reason is that the people are so concerned about this, that if we don't do something quickly, and there seem to be doing it, and doing it really successful at it, harmony may break down. And then I went to a Chinese scholar, and he said, What is harmony breaking down mean? And they said, well, it's broken down in the last 2500 years, harmonies broken down like four or five times. And then millions die, there’s chaos until <inaudible> reasserts itself. So that's how serious they're taking this. Very interesting. Yeah.
ML: Right. And so, so how many times…
JT: So it does two things. One, it allows NGOs to bring cases and there have been, I don't know the full number, there have been last I knew well over 100 cases brought by Chinese NGOs. Now, that's big, since there aren't that many Chinese environmental NGOs. And they're not that well-funded. we've successfully been working to get Western money into them, or to help them bring cases. But very impressive is that the same law allows Chinese prosecutors to sue government agencies as well as companies when the government agencies aren't doing their job, and then the Chinese set up a system of environmental courts, 3000 environment court judges, unlike anything else in the world, so that they could start hearing a lot of cases because as you said, good laws, not well enforced. 3000 judges, amazing. And then I went back a few months later, and after my first meetings there, and the Supreme Court judges asked me to train judges. Because, you know, in our discussion, I was saying, you know, these judges need training.
ML: And your Beijing office, which you mentioned at the beginning, is that generally working with the government or working with those NGOs, or the prosecutors?
JT: Much of the work you do is with the government. But here's why, I mean, so there's tremendous… So here we have government, which in the West, understandably, is seen in a certain way, and in a very negative way, I fully understand that. But the story that doesn't get out is they really are working incredibly hard on the environment. And so, what I want to do is to speed up their progress in that. And one of the ways is by working with the NGOs, and one of the ways is by working with government, so 3000 environment, court judges, and then the opportunity was, will you train them to decide cases, an astounding offer to a foreign NGO. So, we brought in lots of experts from around the world training judges. And then the prosecutors came to us about a year later, federal prosecutors and said in that law we got the right to sue the government agencies when they're not doing their job. But we've never had the right to sue the government before. Would you train us to sue the Chinese government? So here you have the Chinese prosecutor saying, can you train us to sue Chinese government? Amazing. So of course, we said yes. And then here's some statistics. So, about a month or so ago, we got a letter from the prosecutors saying, you know, thank you for all the work we've done together now over the last four years, you brought the whole methodology of environmental prosecution in the public interest, to China. In the last year, we have initiated 80,000 cases. And in the prior three years, they had initiated around 200. So, here we have like a quarter of a million cases more initiated by the prosecutors. Very proud, very, very proud to be part of it. Because the leverage is enormous. And then about 70% of these are against government entities who aren't doing their job.
ML: But this is absolutely fascinating because, of course, what you know, behind my questions I'm probing to see whether, you know, whether the poacher has turned gamekeeper or if a gamekeeper has turned poacher, because, you know, you could argue that that is, you know, you've probably improved the environment and done great work. But that's just helping to develop the sinews of government. If they're not being held to account because it's still government deciding who to sue, and it's government's prosecuting those cases, and then deciding whether they whether even those findings, those outcomes are enforced. So, have you have you not lost the fundamental core of what ClientEarth, what you know, NRDC, started with which is holding, speaking truth to power, holding the powerful to account not helping the powerful to become slightly more efficient.
JT: Listen, I mean, it is, is an astounding thing that the prosecutors want to bring 10s of 1000s of cases against officials who aren't enforcing environmental laws. The rapidity with which you can then achieve change is very dramatic. So no, I don't think I'm going against my principles. In fact, I think I found the most efficient way of operating… if I could get the UK Government or the US government to work with me in the same way, things would be much better in those countries, you know, because they're taking the expertise, and actually applying it in the right way. Now, are we also working with NGOs? Sure, of course. But NGOs can bring hundreds of thousands of cases. It's just not possible.
ML: It's been a tremendous pleasure talking to you today, and learning a bit more about what you do, how you do it, and even why you do it, and where you do it. So, it just remains to me really, to thank you for your time and for explaining it to us.
JT: Thank you, Michael. It's a real pleasure. And I appreciate the depth of your questions.
ML: Very good. Very good. And I wish you good luck, imposing or I don't know what I would say, but yeah, it's imposing the rule of law. As I say, this is just about the polluter pays and having the laws and then making sure they're enforced. Thank you for the work you do.
JT: Thank you, Michael.
ML: So that was James Thornton, CEO and founder of ClientEarth. My guest next week is Catherine McKenna. She's the former Minister of Environment and Climate Change for Canada, now Minister for Infrastructure and Communities. Please join me at this time next week for conversation with Catherine McKenna.