Event Summary: CEO of ClientEarth on using law against climate change

By Tilly Alexander

Last Monday, Oxford Climate Society was thrilled to invite ClientEarth CEO James Thornton to discuss the role of law in the fight against climate change. This was a particularly interesting event given the UK’s climate laws are under review following the UK’s official departure from the EU. Previously named by The New Statesman as one of 10 people who could change the world, Thornton has also been awarded an FT Special Achievement accolade and twice won Leader of the Year at the Green Business Awards.
 
Founded in 2007, ClientEarth is a public interest law firm that uses corporate law to address the climate crisis, a welcome reversal of the norm, which saw law being used to defend rather than prosecute offending companies. Following his move from the US to the UK 20 years ago, Thornton had initially planned to join an environmental group. Yet nowhere in Europe did lawyers seem to be particularly engaged with the environmental movement (even in Brussels, where up to 90% of the EU’s environmental laws get written). Thornton saw an opportunity and ClientEarth was born.
 
Thornton started the talk off on a positive note by explaining why he is hopeful about our ability to do something about the climate crisis. (It is becoming increasingly clear that we need to complement the doom-and-gloom of the traditional climate change narrative with occasional optimism.) With the economics now “on our side”, changes that were dismissed as “idealistic” 30 years ago are now being enacted.
Signs of change in energy and agriculture:

• It is now cheaper in much of the world to build a new renewable system than to continue running an existing coal-fired one.
• Excellent non-meat meat alternatives are being created
• Pharmaceutical companies are working to grow actual meat and milk from small amounts of animal protein. Even Tyson Foods (the second largest meat provider in the world!), is investing in this venture, having recently unveiled a line of alternative proteins and changed its slogan from “Meat Company” to “Protein Company”.

 
In fact, London-based think tank RethinkX predicts that the global beef and dairy industry will be successfully disrupted by 2030. Switching to these promising alternatives could see the industry’s land use reduced from 30% to just 3-4%.
 
Yet these positive signs don’t mean we can take a backseat; we no longer have enough time to rely on the market shifting naturally towards the required changes on its own. The presence of market incumbents, enormously powerful individuals who don’t want to change, makes that all the more true. RWB, which is one of Germany’s largest companies and still uses a lot of coal, is just one example. Faced with the prospect of its main mine running out of coal, the company had plans to cut down one of few remaining virgin forests in Germany to install a replacement lignite mine.

How does ClientEarth intervene?
This is where ClientEarth comes in. Had the environmental group not intervened, RWB’s plans would have gone ahead – but thankfully a group of citizens aided by ClientEarth were able to use the law to successfully stop them instead. James explains how ClientEarth’s projects come about. (Spoiler: it’s not at all like how “normal lawyers” find their cases!) As he points out: the government usually has historic ties to the offending companies and isn’t going to do anything, whereas new companies don’t have the resources to sue. Who is going to do something, then?
 “Citizen lawyers appointed by nobody but the Earth herself.”
What that translates to is: ClientEarth looks at the problem from the outside, then sources and coordinates a group of skilful citizens (in other words, dedicated residents and lawyers in the system) local to the area, ultimately working together to figure out a strategic response. Each case is very different and often involves rather intense challenges. When working in Poland the group was initially denounced by the Minister of Energy as enemies of the State, and received threats from the Secret Police.
 
Having the Earth as your client also tends to cause problems.

1. You cannot “interview” them as you normally would. However, as Thornton states, “The earth speaks to us in the grammar of science.” ClientEarth thus gathers information from institutes such as Oxford’s own Smith School of Enterprise and the Environment. James still remembers the advice given to him by a top scientist when he was just starting out: the most impactful thing to do is to stop coal.
2. The Earth can’t fund it’s case– meaning you must find stand-ins (external financing) to do so instead. The group have successfully set up a (nearly) £1 million fund in China to cover legal costs so that citizens affected by companies’ detrimental impact on their local environments can defend themselves.

 
China: a model for environmental law?
One of the most fascinating sections of the talk revealed James’ involvement in shaping Chinese environmental law.
He highlighted China’s recent efforts towards effecting deep structural change with regards to the environment as highly inspirational. Thornton was first invited to Beijing in 2014 to give a seminar on how to write law that would allow Chinese NGOs to sue polluting companies owned by the State – which as he points out you “basically can’t do in the UK”. He has since been asked to aid in training future prosecutors to do so, as well as the 3000 environmental judges that were subsequently instated. 2018 saw 48,000 cases initiated, 70% of which were against government agencies!
 
Q&A
Then came the Q&A section, dubbed by Thornton as “the most fun part”.
Legal cases brought by youth activists
As James noted, youth movements are an exciting and important new area, signalling to politicians the need to take action or risk losing many potential voters… There have been two cases so far where kids ages six to 22 have sued the government:

1. US: it was claimed that the constitutional right to life was being impinged upon
2. Netherlands, it was claimed the government’s action on climate change constituted a  duty of care to its citizens.

Very excitingly, the court in the Netherlands agreed that the government does have a duty of care. The government was ordered to improve its plan under the Paris Agreement, now 5% lower than its original target. As the decision was made under the EU’s human rights laws, there is hope this case can be a model for other European countries.

Whilst the US case failed, it was still important, contributing to a growing precedent for legal action against climate change. (In related news, the Environmental Institute recently analysed every climate case decided in the world and found that the court always agrees that climate change is happening, is real, and is a danger to civilisation. It seems only a matter of time then, before large-scale legal change is upon us.)
 
The impact of Brexit and the UK’s 2019 Environmental bill
The bill and looks set to give the Secretary of State far too much discretion in setting standards (meaning it will become more difficult for lawyers to hold it to account). As Thornton pointed out, the UK is – somewhat ironically – quickly transforming itself into a local jurisdiction instead of the global power it once was. Worryingly, the 2019 bill has brought in architecture that would allow for simpler changes making it easier to reduce air quality standards in the “back room”.  Equally, COP26 in Glasgow this November is an exciting opportunity  for the UK to do something novel, such as making all businesses listed on the London Exchange (the most carbon heavy exchange in the world) to write, publish and have business plans showing how they will become carbon neutral.
 
Using law against climate change denial.
Is there any legal traction developing around fossil fuel companies and misinformation systems? Yes! Notably, the recent landmark case against BP, who were caught red handed attempting to greenwash. Despite its ‘Keep Advancing’ and ‘Possibilities Everywhere’ campaign emphasising the company’s apparent focus on clean energy, more than 96% of the oil giant’s capital expenditure is on fossil fuels – including towards false advertising like this. But ClientEarth sued them and won: last week BP’s new President announced that the ad campaign would be withdrawn, the company would never lie again, and would aim to go carbon neutral by 2050.
A recent article also exposed that about 25% of climate denial statements made on sites like Twitter are coming from bots. As bots are now becoming easier to identify, working with these companies could see such proponents deleted. However, beyond bots, we continued to be hoodwinked by the media, unlike the well-informed French!  
 
James ended by noting that although it is clear we are now “winning”, the question is whether we are doing so “fast enough”: “I really believe it is a question of saving humanity”. Overall the talk was thoroughly informative about the vitally disruptive work that ClientEarth is doing. Thornton was equal parts optimistic and realistic about the future role of the law in defending against climate change, but overall it’s looking a bit more encouraging. Certainly, the recent ruling against the Heathrow runway on Thursday is a further testament to the ever-increasing power of the law to bring governments and companies to account on climate change.