The sheriff comes to town
As a young lawyer, I specialised in enforcement for a number of years, and brought so many cases that it embarrassed the Ronald Reagan government into enforcing again. This experience taught me that citizens with limited resources could still enforce the law. It also taught me how important enforcement is.
If you knew that the government never audited tax returns or prosecuted people for non-payment, would you be tempted to fiddle your tax returns? If you were a company and knew that to reduce pollution cost money, and money is your only grammar, would you be tempted to pollute?
Enforcement is critical at every level. If you have a dog, you know you have to train it to behave, with negative feedback for bad behaviour. The same is true of governments.
In the EU, scholars have long talked about an ‘enforcement deficit’. Good laws are passed, but not well enforced, or not enforced at all. In Italy, there is a proverb that has emerged since the EU was formed. It goes like this: one goes to Brussels to make the laws; one comes home to find a way around them.
The Italians may give voice to what northern Europeans keep to themselves. While compliance is better in northern countries, it needs improving everywhere. Comparing the USA to the EU, compliance is better in the US.
The image I have of EU politicians passing good laws is of people who want to take credit for a job well done. They pass a good law. They get good press, citizens feel good. Everyone knows it won’t be enforced. Sometimes the law is written in such a way as to make enforcement difficult. Sometimes the relevant enforcer does not want to do the job.
Knowing how important enforcement is, and discovering the enforcement gap in the EU, I decided before opening ClientEarth that we would have to be in the enforcement business. My goal was dual: to create more respect for the rule of law among companies and countries, and to make it clear that when ClientEarth spoke, you should listen. As the Polish Treasury Minister was later to say, ‘ClientEarth is a bad enemy to have.’ Words of high praise if you want to get the job done.
I had a strategic choice to make. What law would I enforce, and where? The UK offered good access to the courts, and while the rules on costs were far from perfect, we had moved them in the right direction.
The next question was which law to enforce. I had learned from my work in the US that I needed a law that had extremely clear behavioural requirements. Ideally there should also be deadlines.
I read a lot of EU law, and conferred with experts. In the end, the Air Quality Directive was ideal. It had numerical values to limit pollution, it made the government the responsible party, and it had clear time limits.
Not only that, but noncompliance with this law has caused a public health emergency throughout the EU. Some 600,000 people a year die of air pollution in the EU,1 primarily due to Europeans’ love affair with diesel.
So there was deadly pollution, enforceable limits, deadlines, and responsible parties. We started in the UK and won, ultimately in the Supreme Court, which ordered the government to clean up the air. The government was violating the court order, so we went back to enforce it.
Meanwhile, we are rolling out a clean air enforcement campaign throughout Europe, with ten cases now filed in Germany, and more to come in other countries. Our strategy was to demonstrate that citizens could enforce the law, and then do it broadly. We began the European leg of our enforcement work in Germany, but air pollution is a serious threat to public health right across the continent. In many EU countries, only NGOs domiciled in the country can be a plaintiff, so ClientEarth cannot be the plaintiff itself. We follow the model I used back in Chesapeake Bay and find an in-country environmental group to work with. In Germany, we work with DUH, the national branch of Friends of the Earth. They serve as plaintiffs. Their communications and outreach benefit the endeavour, while we map EU strategy, and hire the lawyer to bring the cases. Belgium, the Czech Republic, and other countries will be further venues for this work.
This EU air campaign is demonstrating that governments need to comply. It will deliver cleaner air and protect the lives of citizens. It will provide climate benefits as well, since the black carbon in diesel absorbs sunlight and raises temperatures. It should close down some dirty coal power plants, giving further climate benefits.
And, to end where I began, it shows that citizens with relatively little resource can make the law effective by enforcing it. Making this one law work should also send the message to start complying with environmental law more broadly. Citizens are watching and can act.