Can lawyers save the world?
12th June, 2007
A new species of eco-lawyer is emerging from the legal undergrowth. James Thornton advocates a wig-and-gown approach so campaigners can strengthen their case against unethical corporations
Around the world, a tribe of activist lawyers dedicate their careers to human rights and the environment, working from inside charities. In European countries, there are healthy numbers of such lawyers for human rights. Not so for the environment. There are, of course, good lawyers in the UK and rest of Europe doing environmental work in the private sector, and some who do pro bono cases. Yet there are few who spend their careers inside environmental groups, wielding the law as a tool to protect people and the planet, to further campaigns and to level the playing field between the powerful and other living beings. That may be about to change.
But step back a minute. Let me take you to lunch with Murray Gell-Mann in the faculty club of CalTech, in Pasadena, California. CalTech is famous for the Nobel laureate scientists on its faculty.
Gell-Mann won his Nobel in physics for figuring out sub-atomic particles. He named the quark. He was also serving as the environmental trustee at the MacArthur Foundation, which gives away the legendary ‘genius grants’. Over his poached salmon, the white-haired Gell-Mann looked up through thick glasses and asked me in a New York accent how I was going to save the biodiversity of southern California.
As a young lawyer, I had just founded the Los Angeles Office of the Natural Resources Defense Council (NRDC). The leading American environmental law and science charity, NRDC is a tough organisation with a staff of 300 and a reputation for beating the best corporate law firms in court.
Since the office was meant to take care of the Los Angeles environment – no small job – I was focused on air pollution, water pollution, keeping huge trash incinerators away from low-income neighbourhoods, and similar human-centred, urban-oriented issues. I was planning to get to biodiversity later, so I had no good answer for Gell-Mann.
That galled me. So I started to ask, where is the biodiversity in Southern California? It turned out that a key piece was along the undeveloped coast, from LA down past San Diego to the Mexican border. Trouble was, it was also the most developable land in the country, as well as the most rapidly developing. The development juggernaut was driven by a handful of companies who owned virtually every undeveloped acre along the coast that was not owned by the military.
Stopping a juggernaut is never easy. One needs to find a sensitive point and then apply the right tool. How could we level the playing field between an environmental group and some of the most powerful land companies in the world? It was clear from the start that dialogue and campaigns would get us nowhere. Mayors and other public officials told us of their despair in engaging the companies and trying to get them to moderate their plans, to be sensitive to the values of the coast, to protect some of it at least, to harmonise their plans with the natural habitat. They got nowhere.
Walking in the coastal hills and meditating how to go forward, the image of a small bird flashed into my mind. I went back to the office and made calls. Within an hour I was talking to a scientist at Cornell University’s famous ornithology lab. He had just completed a monograph on the threatened California gnatcatcher, a small bird that lives in the coastal hills.
The gnatcatchers that live from LA down to the Mexican border, it turned out, are a separate race of the bird. Even better, they live only in undeveloped coastal hills, from the beach up to the first ridge. And they need about 40 acres per pair to breed. The gnatcatcher’s territory overlapped exactly with the most biodiverse coastal land in southern California. If we could protect the bird, we could protect the whole habitat.
The Endangered Species Act gave us the tool. We filed an application for listing the California gnatcatcher as a species that would be endangered by the planned development. This hit the sensitive spot with the developers: if the bird was listed, all development could be halted or reduced.
The owners of virtually all the remaining undeveloped coastline in Southern California met with us a few days later. This began a negotiation that went on for several years. The result was an agreement that saved some 350,000 acres for biodiversity, an area roughly the size of Greater London spread out along the coast. It became a leading model in the USA of a complex multi-species preservation plan.
The great thing was, we never had to sue. The threat of what the law could do was enough. Using the law strategically we’d levelled the playing field. A few public-interest lawyers and their colleagues had pulled off an agreement that no one else had dreamed of. Least of all me at lunch with Gell-Mann.
That doesn’t mean it was easy. It took several years of tough negotiations. The developers believed they had the right to develop every square inch of the land. The only reason they were willing to negotiate was that they knew the Endangered Species Act allowed us to have a case ready – if the negotiations failed – that could have slowed or stopped the development entirely.
Using the law lets you achieve things you might otherwise aspire to but could never reach. Here is a powerful example of how the law, strategically used, can help the environment and change policy. Ronald Reagan came to power and stopped enforcing the national environmental laws. Within a year of Reagan taking office, the number of cases against polluters under the Clean Water Act fell from several hundred a year to zero. The question was whether citizens could make up the difference. So I started a project with a small group of colleagues, called the Citizen Enforcement Project.
Could we go to court and successfully pick up the enforcement the US government had dropped? We picked a law, the Clean Water Act, which requires monitoring and reporting by companies of their discharges into rivers and streams. The law makes the discharge reports public. And crucially, it gives citizens access to the federal court to enforce the permit obligations. We had 60 cases against water polluters in federal court in six months. We won every one, including against some of the nation’s most powerful companies.
We went on to bring dozens more enforcement cases and won them. At a certain point, a new administrator of the Environmental Protection Agency took office and called me to Washington for a meeting. When I got there, I was shown into a room containing dozens of government lawyers. The new administrator asked me to give the government lawyers a seminar on how to do federal enforcement cases, because, as the administrator put it, ‘You’re pretty good at it, and we seem to have forgotten how.’
Our success in court embarrassed the government to start enforcing the law again. There was no other way to get them to do it. And there was certainly no other way to clean up the toxic discharges in the meantime than to do it ourselves, by beating the polluters in court and settling with them at the conference table.
We intuit that animals are sensitive, intelligent and have feelings. We see that plants are miraculous in their ability to thrive on light and water. We sense the value of other living things every time we crowd into urban parks for a bit of sunshine.
So can the rights of animals and ecosystems trump our rights to exploit them? Can a lawyer walk in to court and argue on behalf of creatures that will be extinguished by development?
A movement began in 1972 to extend rights beyond people to other living things. In Should Trees Have Standing?, American law professor Christopher Stone put the case that all living things should have rights independent of human property rights or other human interests (see also box on Wild Law, page 42). They should be given standing in court, he argued, and special guardians should be recognised to speak on their behalf.
This was a radical position. It remains just as radical today. Imagine that all living things had rights. Imagine that courts balanced their rights against our rights to exploit them, that courts weighed the rights on both sides, as it does in a divorce case.
Our legal systems are built on human interests. People have property rights in other living things. Other living things rarely are granted any rights at all. The sad truth is that legal systems have not yet evolved far enough to extend rights beyond humankind. In this the law lags behind the more sensitive citizen.
Activists, though, are arguing for the recognition of rights in other creatures. A California project, Reef Check, is focused on the worldwide collapse of coral reefs. They are seeking a million global signatories to their Declaration of Reef Rights, with the aim of presenting it to the heads of the 101 countries with coral reefs in time for the 2008 Year of the Reef. The Declaration states boldly that reefs have rights to be free from pollution, over-fishing, bleaching and other human-induced problems. It is a ringing endorsement of rights for one of the Earth’s most diverse communities.
In Europe, the Spanish Parliament has debated a law to give fundamental rights to our closest relatives, the great apes. The proposed law would recognise that apes are intelligent, self-aware creatures that should not be tortured, abused or neglected. So far, that position remains too extreme for the Spanish or any other national government. Voices were raised in the debate against recognising fundamental rights in any creatures other than ourselves.
It may take a long while yet to grant rights to other species at national levels. Experiments can happen more easily, though, at local level. The Balearic Parliament, the local authority for the Balearic Islands, an autonomous region within Spain, has passed a resolution to grant the fundamental rights to great apes that the national parliament is shy of granting.
Another local example comes from the town of Tamaqua in rural Pennsylvania. A town of some 7,000 people, Tamaqua passed a sewage ordinance in 2006. Sewage ordinances are seldom the stuff of history. There is ordinarily not much ‘fight them on the beaches’ heroism in them. This one may be different.
The garden variety sewage ordinance assumes corporations’ rights to spread sewage sludge on land. Not so in Tamaqua. Instead, the ordinance recognises natural communities and ecosystems within the borough as ‘legal persons’ for the purposes of enforcing civil rights.
This is what Christopher Stone argued for in 1972: non-human beings recognised as having legal standing, and rights to balance against our property rights. What a difference this would make, if the jurisprudential ripples spread out from Tamaqua.
Can Tamaqua change the world? Will other local authorities follow, and will the idea be picked up by higher level legislative bodies? Will the ordinance itself be successfully used to protect living things when it is tested in court? Much remains to be seen.
Maybe it should come as no surprise that there are other creatures that lack rights. We may think of Europe as an environmentally aware region. But even people have no right in European law to a clean and healthy environment.
Some countries are experimenting. In France, the constitution was amended in 2005 to include a bill of environmental rights. It recognises the rights of future generations, the rights of the population to information and an obligation on the government to uphold sustainable development.
Will it matter? The problem is that these rights have no remedy. The court in France that will decide is the Conseil Constitutionnel (the Constitutional Council). Citizens have no access to this court. Only parliamentarians may ask the court to clarify matters of law. If you believe your environmental rights, guaranteed under the constitution, are being violated, you have no court to go to.
When is a right not a right? When you can’t enforce it. A cynical observer might think that French politicians managed to receive some very green press, knowing that there was little danger the newly recognised rights would bite.
The problem of access to the courts is not confined to France. It is widespread in Europe, starting with the EU itself. As a citizen of Europe, one would assume you could go to the European Court of Justice to complain when a country, or the EU itself, is violating the law.
Take an example: drift-net fishing in the Mediterranean has been banned outright since 2002. Italy and France have not lifted a finger to enforce the ban. As a citizen, or an environmental group, you might want to go to the courts of Europe to enforce the ban.
If you did go, you would find the courthouse door closed. For most purposes, European citizens have no access to the European courts when it comes to environmental matters.
Well, you might assume, all will be well anyhow. The EU must be watching to see if the member states enforce the laws that come out of Brussels, yes? It must send inspectors out and track enforcement.
The answer is no. The EU has no environmental inspectors. It has hundreds of meat inspectors, but not a single environmental inspector to deploy within Europe. Nor does the EU track enforcement of the environmental laws in European countries. It simply doesn’t do it.
Over the barriers
In a case like the drift net ban, what do you do? The EU has not enforced the ban. France and Italy have not. Unless the ban is enforced, fish will be strip-mined from the Mediterranean.
Citizens could enforce the ban. But they need public interest lawyers to work for them: lawyers who dedicate their career not to private gain but to defending people and the environment. There are few lawyers in the European countries doing this work.
Professor John Bonine at the University of Oregon law school looked at the numbers in a recent study. He compared the number of lawyers at environmental charities able to bring cases in the US to the number in the EU. He identified around 500 such lawyers in the US for a population of 300 million, compared to just 20 in the EU for a population of 500 million.
Law is not much used to help the environment in Europe. Professor Nicolas de Sadeleer, of Oslo University, led a 2005 study for the EU. One of the things his team examined was the number of civil cases filed by major environmental organisations. The average over the eight countries examined was fewer than five such actions a year.
Is this because there are no environmental problems in EU countries? Hardly. Consider these examples:
• Citizens are often denied environmental information by government agencies, or charged extortionate prices for it; Italy and France are flouting the 2002 Mediterranean drift net ban with impunity
• Every year 350,000 people die prematurely in EU countries because of air pollution, mostly from diesel vehicles, according to the European Commission
• Raw sewage spills in to the Thames with every rainfall, because the Victorian storm sewers have not been updated, legally required since 1991
• In Western Europe, 15 per cent of people had drinking water contaminated by bacteria, increasing to around 30 per cent in Eastern Europe, according to the European Environment Agency
• European car companies agreed to significantly reduce CO2 emissions of their cars by 2008, but will not come close to meeting their pledge.
The list could go on much further. Often, laws passed at the European level are poorly applied and enforced in member countries. Enforcement by the EU itself is slow and spotty. There are 15,000 corporate lobbyists in Brussels. Their efforts to dilute laws and blunt enforcement are too often effective. What can citizens do about it?
A new approach is in the works. It’s called ClientEarth, a charity under the laws of England and Wales. It’s the first environmental law group to operate at the European level. We aim to level the playing field, addressing issues of corporate accountability and government failure to implement the laws.
ClientEarth is opening a Brussels office in September of this year. We will work closely with the NGO community, providing legal expertise to add value to the campaigns and other work currently underway.
Our right to a healthy environment is still in its infancy. Like all fundamental human rights – including those to liberty and free speech – it will never fully develop, and indeed will wither, if not given expression in legislation and defended vigorously in court.
We want to give equal ammunition to citizens and the environment. There is an opportunity to: spearhead freedom of information claims against the EU; bring enforcement actions in member countries against irresponsible corporate and government behaviour; work with citizen groups across the EU to help make sure laws are properly transposed and implemented; and push for better and more enforceable laws.
Many laws are unenforceable as written. The UK’s draft climate change bill is one of these. The bill sets a statutory target to reduce the UK carbon emissions by 60 per cent by 2050. That excludes aviation, but still sounds pretty good. Problem: there is no way to hold the government to it.
The bill gives no citizen right of action. Without citizens’ ability to go to court and get an order, the government has no outside check. One must trust the government. Yet that would be naïve. A government will not consistently do the right thing unless citizens can bring it to court. Until citizens can enforce government obligations, they are so much hot air. Unless citizens can enforce their own rights, those rights are phantoms. When governments fail to follow the law, only citizens themselves, using the courts, can gain protection for the environment.
It is not easy. Because substantive rights are seldom recognised, you have to fight with the tools to hand. Often the best tool available is a law giving rights to information or to a review. The challenge is to use the tools available while pushing the law forward until it catches up with the leading edge of environmental consciousness.
Campaigns remain vital. Where a campaign can effect change it remains the tool of choice. But sometimes a campaign alone is not enough. It may not clean sewage from the Thames, reduce noise at Heathrow, stop drift net fishing in the Mediterranean, make France close 8,000 illegal landfills or force EU fisheries ministers to lower the catch of cod to sustainable levels. These are the kind of things a lawsuit can do. And an NGO that wins lawsuits will be listened to more readily when it next campaigns.
Lawsuits can address the complacency of administrations and the abuse of economic power. When administrations become lax in enforcing the law, a case brought by a citizens’ group allows the court to issue a wake up call, requiring the administration to perform its duty. And as the case of the gnatcatcher shows, the credible threat of a lawsuit can force people with economic power to look beyond their narrow interest.
When the remedies line up correctly, the law can require those with economic muscle to slow down for a moment and take account of the broader living community.
If the Earth and her citizens are going to protect their environment in the ever more complex times ahead, they need lawyers on their side. Lawyers who develop a strategic vision of how the law can serve not just economic interests but the lives of people and all other living things. For myself, the Earth is my client, together with all who sail upon her.
James Thornton is CEO of ClientEarth. He is a solicitor of England and Wales and a member of the bar of New York and California, and the Supreme Court of the United States.
UK Environmental Law Association: www.ukela.org
Centre for Earth Jurisprudence: www.earthjuris.org
This article first appeared in the Ecologist June 2007
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