Introduction
A new breed of lawyers act like sheriffs in a previously lawless land. They have the badges while marauders with six-shooters roam the plains. Instead of weapons, these new sheriffs wield sub-clauses in statutes that no one much cares for. Theirs is an unappreciated and hazardous way of life.
Law offers remedies that can stave off ecological collapse. However, laws are meaningless when not enforced, and a main thrust of this book is the story of enforcement, including the writing of laws and regulations that are enforceable. You cannot enforce invisible laws, and so it is important that readers come to know the laws that protect them. Most of the environmental laws that are effective today are new. Laws are as vulnerable as species, and need their own safeguarding, so it is vital that all of us both know about them and value them.
I learned to value the work of these lawyers, and the fabric of laws that support life on Earth, by wandering in as an outsider. James Thornton and I have shared a life for 25 years, so I have had a clear view of his environmental work from the domestic front. To tell the whole story, I had to muster critical detachment and enter the field. Chapters are in my voice as I lead you on that journey. James’s essays draw from his experience as a frontline public interest environmental lawyer and interleave the chapters. They broaden into a moral dimension. I choose to say moral rather than philosophical, because moral combines deep reflection with action. The chief effect of this book is that it shows how rules govern behaviour, and provides evidence based solutions to ecological crises.
It was early morning on a stretch of Southern California coastline.
Bright with sunshine and studded by palm trees, Santa Barbara is as tidy and clean as a Disney vision. Dowitchers and redshanks patter after the retreating waves, their beaks stabbing the sand for food. Brown pelicans fly low lines above the sea, and stand beside the anglers on the pier. Oil platforms are visible from the shore, and beyond those lie the humps of the Channel Islands. Further still, grey whales ply the route between the feeding grounds off Alaska and their breeding sites in the Gulf of Mexico.
James is alert to every nuance of nature, unless he’s thinking. Today, he was thinking hard. We had walked the beach down as far as the cliffs at one end, and now we were almost back to the pier. Public interest environmental law has some good recent history in America, and James was at the forefront of that. Now, we had relocated to London, where he received a challenge. Bring that legal aspect of the environmental movement to Europe. What should he call such a group?
Names had come and gone. They all seemed lame, or ponderous, or already taken. ‘You’ve often told me who your client is,’ I reminded him. ‘Your client is the Earth. That’s what you say.’
He looked at me. What was I getting at?
‘There’s your name,’ I said. ‘ClientEarth.’
He gave me a maybe kind of smile. The name was interesting, but maybe too quirky for a serious law group?
He looked out to sea. A small commotion was happening in the waves that lapped the beach beneath the pier. James stepped closer. A pigeon sat there. A white neck and head reached out of its grey body towards its grey crown. It blinked its eyes and shivered its wings. It was dying yet painfully alive. A herring gull was stabbing its beak into the pigeon’s head and body, snatching mouthfuls of living flesh. These gulls nest out on the Channel Islands, and fly across the ocean to scavenge the land. James clapped his hands and shouted. The gull backed off a few yards, but waited.
James picked the pigeon out of the water and wrapped it in his hands. The bird’s heart beat fast and then calmed. The gull waited. James’s eyes moistened. He breathed in, took the pigeon’s neck in his right hand, and twisted. It was death — tough on James but kinder for the pigeon than being eaten alive. James set its body down. Gulls scuttled in to feed on the corpse.
We’re on a journey into nature, but it’s not a sentimental one.
We headed for breakfast of our own, tucking into eggs at a diner and flipping through possible names. Back in the motel, we ran those names through Google. All were taken. ClientEarth? It brought zero hits.
The name stuck. In years to come, James would look down from his ClientEarth office. Plate glass windows faced straight onto the playground of London Fields. Squirrels climbed the trees, and so did children. More children slipped down the slide, swung on the swings, screaming and laughing. ‘Those are my clients,’ he explained to visitors.
James is one of a lawyer’s four sons who all became lawyers. That has a ring of inevitability about it, but for James the choice was simply practical. As a youngster, he saw that the planet was in ecological crisis.
James went on to win top honours in Philosophy at Yale. He learned why humans might treat the planet in the way that they did, and to see how they might build an egocentric worldview. Philosophy offered no obvious remedies to ecological devastation. To bring about meaningful change, he needed a set of tools. He judged that study of the law would provide him with the best set of such tools.
What is the basic make-up for a crusading lawyer? Imagine them at the edge of the school playground, blinking with wonder at the human predicament. Theirs is not the flash response. Instead, they observe and they analyse. They stare out at the world, and question how inequities can exist. And then they seek a remedy. This book charts something of the phenomenon of the environmental law group, from its conception in the USA to its arrival into Europe and global spread. It is in such a home that crusading lawyers make their base.
These lawyers have the same emotional response to environmental horrors as those brave souls who chug out in inflatable dinghies to counter whale fishing fleets, or those activist campaigners who climb smokestacks or invade oil rigs. It’s just that they redirect the thrust of their emotional response. Anger turns them quieter. It sets their brains working. Some environmental activists claim that such lawyers are not activists at all, and indeed the lawyers often reject the terms environmentalist and activist for themselves. Theirs is evidence based activism. It’s slow burning. It can mean self-sacrifice and sometimes danger. It involves threat without violence, and aims at resolution.
Humans have always used the Earth as a resource. Think of the Earth as a pie. Traditionally, lawyers join the well paid squabble over how the pie is divided. These crusading lawyers accept much lower wages in order to work out what is best for the pie. The Earth is their client. They tune in to what the Earth needs in order to remain intact, and then they work through the agency of law to ensure that happens. When they get it right, gains for the Earth are their end of year bonuses.
Our future on the planet depends on their success.
This book suggests a model of public interest environmental law that began in America and then was brought to Europe by Americans. That’s a significant postcolonial act — the ‘Old World’ is being taught aspects of environmental regard by the ‘New World’. What might be so particular about American legal environmentalism?
From among those who settled the East Coast in colonial times, some pioneers moved west. They found a land of Native Americans, who lived close to nature; grizzlies pawed salmon from rivers, bison thundered across the prairies, bald eagles filled the branches of tall trees. These pioneers wrote in wonder of the natural beauties that they found, and recognised the environmental impact of their incursions. The world’s first National Park was created at Yellowstone in 1872. It was a great act of conservation, but it had a flipside. You conserve something because it is threatened. Yellowstone was protected, which meant the rest of natural America was fair game. At the beginning of the 20th century, children could watch passenger pigeons blacken the skies in their millions. Mid 20th century children never glimpsed the species. It was extinct.
When your direct ancestors walked your country and it was like an Eden, it lodges as a fresh kind of pain.
In October 2016, I ditched my charity store dinner jacket and invested in a new tuxedo. James was up for two awards in the space of a week and it was time to look the part.
Europe’s top lawyers pay £600 a ticket to attend the annual Financial Times European Innovative Lawyer Awards. Dining tables spread across the vast entrance hall of London’s Natural History Museum, beneath the dinosaur skeleton of the diplodocus. Our table was at the front. James was set to give the keynote speech, and receive the Special Achievement Award.
I scanned the programme. ‘Did you know ClientEarth is up for its own award?’ I asked James. ‘FT 50: Most Innovative Law Firms 2016.’ This was news. Before long, James and two of his team were on stage and clutching the award, with smiles for the photographers. For his words of acceptance, James thanked the philanthropists who made his firm possible. They are big players in the story you will read, canny folk who use their wealth to save the planet.
I had smiled when I read James’s keynote speech for the night. It compacted the nine years of ClientEarth’s existence into eight minutes of text composed for legal minds, a dense yet lucid unfolding of intelligence. It would lose an average audience. How would top lawyers cope on their big night out?
James began. Party chatter still rose from distant tables, and then a wave of silent attention reached back to enclose everyone. Once he’d finished, to a rush of applause, James took his award and sat down, glad for a drink at last.1
It took an email some days later to bring home the true significance of the night. The message came from Pierre Kirch, competition lawyer and litigating partner in the Paris and Brussels offices of the top law firm Paul Hastings, and an adviser to ClientEarth. ‘Special Achievement is amongst the ten award categories, perhaps the most prestigious,’ he wrote. ‘Of the other nine categories, ClientEarth was the hands-on leader of the five law firms cited as the “Standout” firms in “New Models”. The citation merits mention, as it states in concise terms who we are: “ClientEarth is Europe’s first law firm set up to defend the public interest in the environment. Formed as a charity and independently funded, it now has 100 staff, who use the law as a strategic tool to protect the environment and human health … The firm aims to change legislation and policies and influence how businesses report their impact on climate. An important part of the firm’s work includes making sure that environmental laws are implemented in the spirit of how they were written.”’2
Pierre went on to read down the list of FT 50: Most Innovative Law Firms 2016. ‘Worldwide players that have been there forever, such as Linklaters, Allen & Overy, Hogan Lovells, Baker & McKenzie, Freshfields, Shearman & Sterling, Paul Hastings, Skadden Arps: these firms are amongst the top 25 on the list,’ he noted, ‘but who comes in at number 46? ClientEarth. This is based on a global score across all categories, most of which ClientEarth cannot compete in. It goes without saying that it is alone in the list of the top 50 as a “charity” law firm, and this, moreover, as a firm that is not specifically specialized in the business of innovation in the legal sphere but specialized rather in the use of the legal tool to protect the Earth.’
I read Pierre’s comments and realised that this book is an ugly duckling story: the poor relation charity environmental law group that suddenly found itself among the swans of top global law firms. It is a tale of a quiet revolution within the environmental movement. We know that the side with the best lawyers tends to win. Now, as the 21st century sees us in a period of intense ecological crisis, the Earth has the best lawyers.
America is the land of Marvel superheroes. We are introducing a different style of hero in this book, so we’ll reverse and subvert the comic book story a little:
Superwoman beams in from another planet. That gives her planetary vision. She sees the Earth will be devastated if it carries on along its present track. As a superhero, she has to save it from disaster.
It takes a while, but she finds an old phone box with a door that closes. She strips out of her tights, tears the self-aggrandising logo from her chest, and folds up her cloak. They’re no use for a while. She could clench her hands into a fist and rocket through the atmosphere and tackle crisis after crisis, but the world doesn’t need a Saviour. It needs to take responsibility for its own actions.
She puts on an open neck shirt, a dark suit, a pair of glasses, and emerges from the phone box as Lois Lane. Journalists are important, she’ll need those to communicate her message, but she’s just become a lawyer. She can use those glasses to scrutinise the fine print on legal documents. That’s where humans have codified their sense of the right and proper order of life on Earth.
She marches the urban streets and enters the offices of a public interest environmental law group. Clark Kent’s head faces a computer screen, he is talking into a miniature microphone, but even so he recognises her as she enters. Clark turns to Lois Lane and smiles. He’s been at this stuff a while. As Lois settles down beside him, he works to bring her up to speed. They start local, looking at current environmental legislation at regional and national level, and then go global.
‘Is that it?’ Lois asks.
Clark nods. He looks rueful. ‘Environmentally, we live in a lawless world,’ he says.
Lois takes off her jacket and rolls up her sleeves. She’s an enforcer. What laws there are, she’s set to enforce them. Maybe she can clear away those obstacles that block entry to the courts, so that citizens can take action for themselves. Where laws don’t exist, write new ones.
That’s all clear, but she’s a superhero in Lois Lane disguise. She needs a clear, mean, powerful enemy. She walks to the triple glazed window and looks out at a baking world. Air conditioning chills her back.
‘Who’s responsible for all this?’ she asks.
A young legal intern sits beside the desk. ‘Me,’ she says. ‘I am responsible. My suit was made by wage slaves in Bangladesh, and shipped here in containers. I received a scholarship to attend a university which was funded with the fruits of empire. Men died to mine the components in my mobile phone. I once flew to Thailand to go snorkelling. My hand cream contains polyethylene which sends billions of nanoparticles into the oceans whenever I wash. As a citizen of the developed world …’
Lois puts up a hand to stop her. She does not need this. She needs public enemy number one.
‘Here,’ Clark says.
Photos of men in suits populate his screen.
‘They support corporate actions that increase the dump of carbon dioxide into the planetary sinks. Their profits buy direct access to Heads of State.’
‘Right!’ Lois Lane pumps a clenched fist into the air. ‘Let’s sue the bastards!’
‘Sue the bastards!’ was an early slogan of crusading environmental lawyers in the USA back in the late 1960s. The movement soon became more professionalised and nuanced.3 However, I offer the Superwoman tale as a trailer, because this book really does tell the story of people fighting an almighty battle to save the planet.
They can’t do it alone. By reading this far, you are already joining in.