Short Cuts

Frederick Wilmot-Smith

The oceans are awash with plastic. According to one study from 2015, 90 per cent of seabirds have it in their gut. Another study indicates that a third of the fish caught in UK waters have it in theirs. Unless something changes, it is estimated that by 2050 there will be a greater weight of plastic in the seas than fish. The secretary of state for the environment, Michael Gove, watching Blue Planet 2 and moved by images of, among other things, a turtle caught in plastic, tweeted that ‘the imperative to do more to tackle plastic in our oceans is clear.’

What should be done? New laws could be passed. But that will help only if they are obeyed. Although there are laws governing air quality in the UK, the National Audit Office has found that 85 per cent of air-quality zones breach legal limits. Laws don’t enforce themselves. When they are broken, ensuring compliance will require an individual or an institution to bring legal proceedings. Since environmental illegality tends to affect large numbers of people incrementally and in ways that can be difficult to ascertain, often no individual has a particular incentive to bring a claim. That’s why the Environmental Protection Agency in the US is dedicated partly to the enforcement of environmental laws. It is, though, subject to political influence: under Trump, its budget has been cut by 30 per cent, and it has gone after only 40 per cent of the civil penalties the Obama administration sought in the corresponding period.

In the past, when the EPA failed in its duties, private litigation was brought to secure compliance. When Ronald Reagan appointed Anne Gorsuch (mother of the newest Supreme Court justice, Neil Gorsuch) to head the EPA, he asked if she was willing to ‘bring it to its knees’. She slashed its budget and, as the New York Times put it, ‘sabotaged the agency’s enforcement effort’. In response, James Thornton, a crusading lawyer, brought private actions to hold polluters to account. In 1982, while the EPA brought 14 cases against industries under the Clean Water Act, Thornton brought sixty. One of his suits was against a meat-packing company, Gwaltney, which had been pumping faecal coliform, Kjeldahl nitrogen and chlorine into a river. The pollution ended up in the Chesapeake Bay. Thornton showed that the pollution was illegal and that Gwaltney had wilfully ignored its obligations. They were fined more than a million dollars. (Gwaltney challenged the award, with some success, before the US Supreme Court. One of its lawyers was John G. Roberts Jr., now the chief justice.) Another polluter, Bethlehem Steel, was dumping 18 kilograms of cyanide per day into the Chesapeake Bay. Thornton forced it to pay $1 million to charity. (Bethlehem’s illegal dumping had saved the company $36 million.)

The UK has no governmental regulator dedicated to the enforcement of environmental laws. In 2008, Thornton (who now lives in the UK) set up an organisation to perform that role. He named it ClientEarth. Based in London, it has an international practice, helping to draft environmentally friendly laws and bringing litigation to enforce environmental standards, on overfishing in European waters, for example, or deforestation in Ghana. It has campaigned against coal-fired power plants in Poland and consulted with China to help improve its environmental standards.

Client Earth, which Thornton wrote with his husband, Martin Goodman, describes how the institution was set up and charts its more notable successes.[*] Staffing was the first problem. Bright young lawyers tend to go to the highest bidder and ExxonMobil pays more than the earth. If good lawyers make a difference to the outcomes of cases, as they almost certainly do, then the deck is stacked against ClientEarth. They depend, Goodman explains, on finding lawyers with a ‘desire to help people and the environment, rather than the desire for personal gain’. They also depend on the kindness of strangers. Small donations are welcomed, but the bulk of ClientEarth’s funds seem to have come from philanthropists. Goodman’s picture of the fundraising world is not rosy. Philanthropists are described as sharks, ‘creatures of great power’ who, ‘if you’re lucky, concede to flip you a mackerel or something’. At one gathering, potential donors are ‘cusped in a living remnant of France’s imperial era’. ‘How can we make the planet better, greener,’ one of them asks, ‘but not necessarily stifle business in the process?’

A public interest firm has to be careful in picking its projects. One cause pursued means another foregone. And not all strategies are guaranteed to succeed. (I once sat in on a conference call in which death penalty lawyers decided not to lobby a US state governor for clemency for one client in the hope that the governor would be more amenable to another client. He wasn’t.) It’s a shame Goodman and Thornton have so little to say about the way they make their choices. ‘ClientEarth needed to establish which issues it would fight for,’ they write concerning the origins of their high-profile work on air pollution in the UK. ‘Why not make clean air a priority?’ Even so, they chose well. In Europe, more than 400,000 premature deaths are caused by air pollution every year, and many more suffer health problems – including asthma, diabetes and dementia – because of dirty air. The problem isn’t the laws as such, but their enforcement. The EU’s limit for nitrogen dioxide is 40 micrograms per cubic metre of air. In 2016, levels in Oxford Street averaged more than twice that amount; on occasion the level has reached more than ten times the legal limit. ClientEarth has been to the UK Supreme Court in an effort to get the current government to comply with its obligations to control air pollution. (The government spent £370,000 defending its illegal actions.) The government’s current estimate is that it will be 2026 before it does comply. ClientEarth have started a third legal action, which will be heard in February.

One reason it is difficult to enforce laws is the financial expense of doing so. This expense is a consequence of the design of the legal system. The normal rule in England is that the loser pays the winner’s costs in a legal suit; £90,000 of the government’s £370,000 legal bill in the air pollution cases was ClientEarth’s own costs. If ClientEarth brought a case against a polluter and lost, they would likely have to pay the other side’s legal fees – and polluters rarely have pro bono lawyers. The Synod of Winchester in 1175 justified this rule on the grounds that it put a check on litigation. But it does so in a regressive manner: the very rich are not deterred from vexatious litigation; those without wealth are deterred from almost all litigation. The financial risk has proven too great for almost anyone who might want to enforce environmental laws in the courts.

ClientEarth challenged the costs rules. They relied on the Aarhus Convention of 1998, an international treaty that places the UK under an obligation to provide ‘fair, equitable, timely and not prohibitively expensive’ remedies in environmental cases. Their litigation established that making the loser pay the winner’s costs violates this obligation. A cap was put in place: claimants would never have to pay more than £10,000 as part of an environmental challenge. Liz Truss, when she was lord chancellor, sought to change the new rule: litigants would be required to give detailed information about their finances; in certain cases, the cap could be lifted. This would, it was argued, deter ‘unmeritorious claims’, though no evidence was supplied to that effect. ClientEarth recently proved Truss’s move unlawful too.

ClientEarth’s successes on costs were possible only because of laws derived from the European Union. The Aarhus Convention is an international instrument, but it is implemented in domestic law through EU directives. When we leave the EU, we will have more autonomy over environmental standards, including the autonomy to abrogate our obligations under Aarhus. There will be incentives for the government to do so: Heathrow’s third runway, for example, is likely to increase air pollution above legal limits; it will be cheaper to change the law than to comply with it.

So far as we know, the Earth has witnessed five mass extinctions, four of them caused by climate change bound up with the accumulation of greenhouse gases. (The other one, which did for the dinosaurs, was probably caused by an asteroid.) Two hundred and fifty million years ago, the Permian-Triassic extinction began when large volcanic eruptions in Siberia caused the Earth to warm by roughly five degrees. More than 80 per cent of Earth’s species were annihilated in the aftermath.The median prediction of the United Nations Intergovernmental Panel on Climate Change, seen by many as a conservative estimate, is that the planet will have warmed by four degrees by the end of this century.

‘Property that is common to the greatest number of owners receives the least attention,’ Aristotle wrote in the Politics, because ‘they think less of it on the ground that someone else is thinking about it.’ It has been easy enough until now to let the European Union (and ClientEarth) think about environmental law for us. Once the UK leaves the EU, it will be down to us to pay more attention to our common property and the laws that govern it.

[*] Scribe, 336 pp., £20, May 2017, 978 1 911344 08 7.