Enforcing the Laws of Nature
Season 3 / Episode 44 / June 2, 2021
“Governments and companies often like to forget what the law says, particularly when it comes to the environment”: James Thornton on fighting climate using the law.
In this episode of Cleaning Up, Michael Liebreich talks to James Thornton, the founding CEO of ClientEarth.
Using laws that are already established, Thornton and his team of lawyers have brought successful cases against governments and companies who are failing to live up their environmental obligations. James talks Michael through some landmark cases, connecting historic activism with the work of ClientEarth.
This is an abridged transcript of the interview, edited for clarity.
Michael Liebreich: James, welcome to Cleaning Up. What does ClientEarth do? And how did it begin?
James Thornton: We are a group of lawyers. The law is an astonishingly powerful tool, and it allows you, if you know how to use it creatively, to write the rules of the game. We’ve successfully sued the UK Government and companies to make them do what the law says. Governments and companies often like to forget what the law says, particularly when it comes to the environment.
In Europe, until we started doing this, there were very few lawyers working on environmental law. It meant that civil society concerned with the environment was a 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 filled.
I started doing this work in the 1970s in the United States. There was a civil rights movement that was powerful because there was apartheid. Lawyers got involved because if you were a person of color and asserted your rights, you would be arrested and 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. 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.
ML: You can draw a thread from slavery abolitionists in the UK, through to the women's suffrage movement, then to the human rights movement in the US, and then to LGBT rights. Now that thread reaches to the environment. The techniques from the fundraising to the use of marches and civic society through to direct action, you know, civil disobedience through to the piece that you're talking about, do you see a thread from those traditions to your own?
JT: Each of them learns from the other, 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.’ I said, ‘smart idea. Let's learn every from each other.’ That's how the techniques evolve.
ML: So, in the UK, your great win was on air quality, was it not?
JT: Yes. 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. I had to learn EU law and become a solicitor in the UK, which I did along the way. Then I asked, ‘can citizens enforce the law?’ No one had done that within Europe.
I found a law that I thought would be enforceable, which was the Clean Air Law that applies to all the countries because it had numerical standards for what the pollution levels should be. They had a timetable by which governments had to make the air meet those standards. So, I thought it looked enforceable. Then the issue had to be important, not just a theoretical type of issue, 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 people or more in the EU who were dying early of air pollution every year, an enormous number of people.
We brought a case and beat the UK Government. Then we had to go all the way up to the Supreme Court. And the UK government was being quite difficult. In 2010, they had to meet the standards for toxic poison gas, but 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, had become a solicitor in the UK. I learned that in the UK you write a nice letter before you sue somebody. So, I wrote a very nice letter that said, ‘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.’
They wrote back and it was an amazing letter. They said, ‘We have no intention of complying until at least 15 years from now, because it’s not convenient.’ And they took that position all the way up to the Supreme Court where they went so far as to say the Supreme Court may not order them to comply with the law. Here we had 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.’ It's a wonderful question. We said to them, roughly, ‘Look, if you let the government walk in the court today and say, “you can’t order us to comply with the law,” this isn't just about environmental law. If they can walk in and say we're only going to comply when it's convenient for us, you're no longer a democracy under the rule of law.’ The Supreme Court gave us an injunction and required the government to come into compliance with the law.
ML: But you didn’t stop there, did you?
JT: We went to Germany, the home of the diesel motor industry, and we brought cases in Stuttgart, Dusseldorf, Munich: home of BMW, Mercedes, Porsche, Volkswagen. We won all the cases. The judges there were more activist. They issued bans for diesel vehicles in the center of those cities, which really drove the German motor industry nuts. So, cases went up to the Supreme Court of Germany. Angela Merkel got on the television and said, ‘This case about diesel cars is not really a big deal.’ We thought, ‘Wow, if the Chancellor is saying it's not that big a deal, it's even bigger than we think it is.’ Within the next 12 to 20 months, there was a tanking in the number of people in the market who bought diesel vehicles in Germany, about 22% less, roughly. 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 just kind of kept pushing out as far as they could.
ML: 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, be shut, or must pay such substantial damages so they effectively shut. Do you think those cases have merit? Or are they irritants?
JT: There is merit in a way, because they're using a damages theory. Whereas the other cases, like our air quality case, were using a theory that argued you need to correct your future conduct, rather than to go back and pay damages for things that were done in the past.
The question is whether court will go so far as to say that they are liable. Because in the Ella Kissi-Debrah case in the UK, the coroner said her death was caused by air pollution. Now, 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. Governments will continue to bring those cases, many of them will fail, but I think at a certain point, a judge is just gonna say the connection is so obvious, I'm going to give you, in New York, you're not claiming for all of the money of Exxon, you need 100 million to build sea walls, I can see that's reasonable. So, I think that will happen one day.