Focus – Environmental law: Force of nature

One day after ClientEarth and TV chef Hugh Fearnley-Whittingstall unveiled their Fish Fight campaign, Tesco announced major changes to the way it sources tuna. CEO James Thornton reveals the new arsenal in environmental campaigning – the force of law

James Thornton
James Thornton

The East London offices of environmental law organisation ClientEarth overlook a playground, although its swings and slides are empty on this damp January day. For founder and CEO James Thornton, the ­playground acts as a constant reminder of the focus of his charity.

From this unassuming base, ­Thornton, a quietly spoken American, leads an international team of 25 lawyers in a fight for the world’s ­environment. Unlike other environmental groups, ClientEarth’s weapon is not high-profile protests, but the application of law.

Thornton says the children who play beneath ClientEarth’s windows are the organisation’s true clients – the future generations who could benefit from what he and his team are doing.

ClientEarth’s work hit the headlines earlier this month when, with TV chef Hugh Fearnley-­Whittingstall’s Fish Fight campaign, it released a study of the way in which major UK supermarkets source and label fish products. One day later Tesco announced that by 2012 all of its canned tuna would be caught by the environmentally preferred pole-and-line method.

As well as lawyers and administrative staff, the organisation employs a marine scientist, Melissa Pritchard. It was through Pritchard, who knows Fearnley-Whittingstall, that ­ClientEarth became involved in the Fish Fight campaign. But ClientEarth had already been working on marine issues for years.

Thornton is critical of EU marine law, calling the Common Fisheries Policy “the worst law in the world”.

“We manage fisheries badly because the law’s terrible,” Thornton says.

Combining Pritchard’s scientific skills with legal expertise, ­ClientEarth has come up with a ­fishing credits system that allocates different credit amounts to different species of fish, giving fishermen more flexibility and eliminating much of the bureaucracy and waste that dogs the current system.

The Common Fisheries Policy is up for review in 2012. European Commissioner for Maritime Affairs and Fisheries Maria Damanaki is supportive of the credits proposal. The idea should help eliminate the wastage highlighted by Fearnley-Whittingstall.

An ideal start

The high-profile nature of Fish Fight is beginning to make ClientEarth a little better known. But the charity has been making waves in environmental law circles since its foundation three years ago.

ClientEarth’s genesis goes back to US environmental public law organisation the Natural Resources Defence Council (NRDC). The NRDC was founded 40 years ago, when the US was passing legislation such as the Clean Air Act, and now boasts 300 lawyers and a revenue of more than $90m (£56.3m).

Thornton joined the NRDC as a young lawyer from Paul Weiss Rifkind Wharton & Garrison New York office. It was through that job that he first got to know philanthropists and NRDC supporters Michael and Winsome McIntosh.

A number of years later, when Thornton was heading a UK ­neuroscience institute, the ­McIntoshes visited and suggested a European version of the NRDC. Their McIntosh Foundation funded Thornton through a one-year study of the way environmental law was used in Europe.

Fishy business

Thornton says he was amazed at how few lawyers there were in environmental organisations in Europe. In contrast, he found major corporations routinely sent lawyers to put ­amendments on environmental issues before policymakers. This, he was told by the chair of the European ­Parliament’s environment committee, meant the views of the lobby groups tended to lose out to the more ­considered input from corporations. The study led directly to the ­foundation of ClientEarth.

“We don’t have clients as such,” explains Thornton. “What we do is set problems. We become experts in the law and then we move the field forward.”

Thornton finds lawyers who are not necessarily environmental ­specialists, but who are good at what they do. Lawyers are given time to research an issue intensively before writing a report or drafting ­legislation to solve whatever ­problem is presented.

These lawyers are recruited from international law firms and ­governments across the world. Recent arrivals include Marcin Stoczkiewicz, previously a partner at Polish firm Jendroska Jermanski Bar & Partners, who has joined ­ClientEarth’s new Warsaw office.

“Part of it’s idealism,” Thornton says. “They see the opportunity now to use their skills to make a real ­difference.”

Interns are recruited regularly from universities and City firms – a Simmons & Simmons lawyer is ­currently working at ClientEarth on company law issues, and past interns are in the middle of training ­contracts at some other top 10 firms.

Thornton believes the level of law practised at ClientEarth is at least equal to that in international firms.

“What being in a Wall Street law firm showed me was that practice at the NRDC was equally good,” he states. “That’s what we’re doing here too.”

There is another bonus, too.

“It’s very rare in private practice to be able to make new law,” Thornton says, adding that the lawyers working at the charity get the chance to ­influence European policymakers.

The campaign trail

Thornton says ClientEarth operates essentially as a law firm, although it is structured as a not-for-profit ­business. Funding comes from a ­mixture of foundations and private individuals as well as the European Commission’s ’Life+’ environment policy funding programme - although this money does not stop ClientEarth from bringing cases against the EU if necessary. Although constructive solutions are the ­charity’s first aim, it is prepared to ­initiate litigation proceedings if it has to.

Much of the work is handled pro bono, but ClientEarth also takes fee-paying clients. For example, it is charging the Danish and Dutch ­governments for advice on possible litigation brought by the EU. The ­difference between ClientEarth and a law firm is that the revenue is ­channelled back into the rest of the charity’s work.

Cooking up a storm

The collaboration with Fearnley-Whittingstall is ClientEarth’s first venture into onscreen campaigning.

“What’s interesting for us is that the reason [Fearnley-Whittingstall] was able to pull this off was because we were able to advise him on the science and the law,” Thornton says.

Thornton does not rule out ­another collaboration with a ­celebrity campaigner, but says that Fearnley-Whittingstall’s track record on ­previous issues makes him a good person to work with.

ClientEarth’s team is busy with a wide range of other issues. Last ­summer it won a case against the UK Government, arguing that the cost of litigation is prohibitive to claimants bringing environmental issues to court. The case was argued by former Bar Council chair Stephen Hockman QC, one of the charity’s trustees and an experienced ­environmental lawyer himself.

The Aarhus Convention Compliance Committee agreed with ­ClientEarth that the costs and time limits involved with UK courts breached the UN’s Aarhus ­Convention – an agreement linking government accountability and ­environmental protection.

Thornton points out that claimants bringing environmental cases usually do so for moral or ­ethical reasons rather than financial gain. ClientEarth is proposing a ’one-way’ costs system for the UK for such public interest cases that would absolve losing claimants from paying legal costs. Losing defendants, such as large companies or the Government, would have to cough up.

Appealing to the Lord

The concept has been raised in the current government consultation on costs, following Lord Justice Jackson’s review. ClientEarth persuaded ­Jackson LJ to chair a recent seminar looking at the Aarhus case and ­Thornton thinks the judge took on board many of the charity’s points.

Thornton is hopeful that the ­outcome of the litigation will help swing the pendulum the right way “if the system were to see that this way of doing it can be made to be fair”.

“We have to remove the discretion from judges to impose excessive costs on people in environmental cases,” he continues. “It could have ripple effects throughout the system. The great thing about that is that the legal system itself becomes more democratic.”

The clear way

Much of ClientEarth’s work evolves in a similar way, with the problem raised giving rise to a broadly ­applicable solution. One area of focus at the moment is corporate ­transparency. Although the UK ­Companies Act 2006 requires ­companies to report on their ­environmental policies, there are no regulations governing how they should do this.

Accordingly, most companies pay mere lip-service to the concept, claims Thornton, dismissing current practice as “greenwash”.

ClientEarth lawyer Ben Bundock wrote some regulations and the organisation took them to the ­Financial Reporting Review Panel, which supervises compliance with financial reporting requirements. The panel recommended using the work as the basis for bringing ­complaints against any companies not complying with the statutory requirements, with the result that ClientEarth is now pursuing Rio Tinto and BP.

“We’re pushing that corporate transparency work further,” says Thornton. “Like in all the other areas we work in, there weren’t lawyers working in this area and pushing it.”

The success of ClientEarth’s ­campaigns has increased the organisation’s profile, both with those ­campaigning for better environmental laws and those passing them. Ireland’s environment minister John Gormley, also head of the Irish Green Party, recently brought in ­ClientEarth to help draft its climate change law, which was published in December.

Thornton says that the level of engagement from policymakers has surprised him.

“I hadn’t expected that we’d have this quite deep working relationship with governments,” he admits.

He believes that ClientEarth has developed a better working relationship with governments in three years than the NRDC has managed in its entire 40-year history.

Growing influence

Proof of this, says Thornton, is ­ongoing work with eight Central American governments on how to deal with the revenues derived from the UN’s Reducing Emissions from Deforestation and Forest Degradation (Redd) programme. Redd and the associated Redd+ programme (“an awful acronym”, concedes Thornton) are designed to create financial value for the carbon stored in forests. Countries are rewarded financially for protecting forests and safeguarding indigenous rights.

“The whole scheme really works or fails based on how good the ­governance structure is,” Thornton says.

Along with helping the countries to prepare for Redd+, ClientEarth is involved with the implementation process, producing recommendations and briefings at each stage. Thornton says the work could ­ultimately bring the need for a ­Central American office to provide ongoing local support.

Thornton says the organisation will continue to grow in size. It has already doubled in each year of its existence and has high-profile ­support in the shape of its patrons – music guru Brian Eno, pop band Coldplay, and MP Zac Goldsmith.

ClientEarth is still far from being a household name in the way that Greenpeace or Friends of the Earth are. But its subtle and potent weapon of the law could well prove to be at least as effective s their headline-catching campaigns – which is good news for the children in the Hackney playground.

ClientEarth’s campaigns

Creation of fishing ­credits scheme; advised campaigners against ­commercial whaling.

Health and ­environment
Currently developing London Clean Air Report, recommending legal solutions to the capital’s air pollution problems.

Climate and energy
Advised the Irish ­government on Climate Change Bill; ­advocated for minimum level of ­carbon capture and ­storage for new UK coal power plants.

Climate and forests
Worked to secure EU import ban on illegally harvested timber.

Environmental law and justice
Bringing a number of claims against EU ­governments and the European Commission on access to information and access to justice; published legal analysis exploring the ­implications of the ­Lisbon Treaty on ­environmental law.