American lawyer and environmentalist James Thornton arrived in the UK nine years ago with a long record of US legal triumphs already behind him. His next challenge: to show Europe’s green movement what could be achieved in the courts.
Last April, he hit a major milestone on that journey when his NGO ClientEarth – the region’s first public interest environmental law group – won a Supreme Court case against the British government over illegal air pollution. Following a five-year battle, the court ordered the government to make plans to improve air quality to the standards required by EU law as soon as possible.
It was the first time the country’s highest court had issued an injunction in an environmental case, and the victory has given impetus to similar fights across the continent, including 10 cases ClientEarth is supporting in Germany. “Once we demonstrated the law worked, we said ‘great. Let’s do it in Germany, let’s do it in Belgium, let’s do it in Italy.”
The UK fight is not yet over. Thornton’s team was back in court this week to challenge the government’s latest plan, which would see it continue breaking the law on nitrogen dioxide limits until 2025. But for Thornton, the progress to date – and the intransigence of the authorities – shows how important it is for civil society to fight for environmental law enforcement.
If implementation of laws is left to governments alone, he says, authorities feel they can pick and choose the rules they like, as shown by the air pollution case: “Clearly the government, when it agreed to these deadlines, never thought that citizens were actually going to hold them to it.”
The experience is also a lesson in using the law strategically, he says. Making UK air quality ClientEarth’s flagship legal battle was not arbitrary but the result of a careful selection process. To make the broader point that citizens could actually enforce legislation, Thornton needed a case that was not just serious, but winnable, he explains. And so he hunted around for the right cause – and the right law. With strict numerical limits on air pollution, and clear timelines for achieving them, the EU’s Ambient Air Quality Directive provided fertile ground for proving illegal behaviour.
Having made progress in his efforts to bring US-style environmental legal activism to Europe, Thornton has taken on a new task: supporting development of citizen-led enforcement in China. So far he has taken part in a Supreme Court seminar on implementation of environmental law, as well as training programmes for judges and prosecutors. If all goes to plan, ClientEarth will have a permanent office in Beijing next year.
Unable actually to bring cases in China, it hopes to focus on capacity building, offering training and advice to members of the legal system, legislators and civil society.
China’s revised environmental protection law launched in 2015, giving citizens and certain NGOs the right to sue polluting companies. So in theory the system is newly set up for citizen suits. However, only 90 cases had been brought by June this year, fewer than many had hoped for. Civil society groups also complain of a government-led clampdown on NGOs and high legal fees that make it hard for any but the richest outfits to bring actions.
Thornton remains optimistic about the potential for change. Allowing NGOs the right to sue polluters at all is a big step, he says, pointing out that the UK does not offer the same right. The establishment of specialist environmental courts also sets China apart from other big players, he adds. In the EU, Sweden is the only country to have done the same. And China has followed the US in adopting a rule that losing parties do not pay the other side’s costs. This is important, says Thornton, because the risk of ending up with your opponent’s bills can act as an additional disincentive to would-be plaintiffs.
He believes China has set an example in how to think globally when writing new legislation. “By comparing legal systems in an international way you can find best practice and bring them into the national system,” he says. “That has tremendous potential for speeding up how things work.”
But is Thornton over-optimistic about impacts on the ground? Given China’s widely recognised failures in environmental law enforcement, many are cautious about the transformative potential of legislative change. Early evidence also suggests NGOs are struggling with the financial burden of court cases. The first successful public interest lawsuit, against polluting glass-making firm Zhenhua, cost the All China Environment Federation (ACEF) at least 500,000 yuan (US$75,000) in legal expenses and consultancy fees. Restrictions on fundraising in China are likely to compound the problem. So how can NGOs be effective?
They may be able to draw lessons from ClientEarth’s work elsewhere. The UK air pollution case shows that strategic selection of cases pays off and can help civil society maximise the impacts of its limited resources, says Thornton: “I think without strategic use of law, environmental groups aren’t nearly as powerful as they could be.”
But money makes a big difference. NGOs with more cash are able to do things like hire in-house lawyers and take risks on lawsuits that may take years to come to fruition, Thornton says. This is doubly important because a well-resourced, legally active civil society is essential to resolving the enforcement problem too, he says. His experiences fighting the American government over water pollution in the 1980s underline the point: the NGO team he was working with brought more than 100 water quality cases to court and the constant exposure changed attitudes.
“The government under Reagan had stopped enforcing the law, and by winning all these cases we embarrassed them into starting to enforce it again. Companies also start to think the laws actually mean something – once they realise the court may find against them and penalise them, they lose money and lose face, and you start to create a culture of compliance.”