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What we could learn from lawyers - and from China - about protecting the planet

James Thornton of ClientEarth has fought court cases to challenge government inaction on climate, environment and air pollution. Brendan Montague of the Ecologist interviews him.

Brendan Montague
5 August 2019
Smoke stacks from a steel plant in Benxi, China (2013).
Smoke stacks from a steel plant in Benxi, China (2013).
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Andreas Habich (CC BY-SA 3.0)

James Thornton is not what you expect from a New York lawyer. He has a soft lyrical voice; each statement he makes is carefully balanced and deeply considered; he practices Buddhism, is gay, and drinks green tea.

But he is fierce. This one man poses the greatest threat to polluting companies operating in Europe. Is this hyperbole? Well, the founder of ClientEarth was presented with the Financial Times’ Special Achievement Award at the Innovative Lawyer Awards in 2016, and has been named as one of ten people who could change the world by the New Statesman. He has been working with high ranking Chinese officials to revolutionise environmental law across one of the world’s biggest economies. These and grander accolades fill his Wikipedia entry.

ClientEarth is a not-for-profit environmental law firm that now has offices in London, Brussels, Warsaw, Berlin and Beijing. Thornton is perhaps best known for the Clean Air Campaign, in which he brought the UK Government to the Supreme Court for “failing to protect its citizens against air pollution”. Aspects of the case were taken up by the Court of Justice of the EU leading the way to further suits against companies across the continent.

Transforming practice

Thornton’s aim is, simply, “to save civilisation”, he told me during an interview at his modest office in Hackney, east London. His method is fundamentally transforming the practice of environmental law in the UK. And, in this, he is succeeding.

He is fighting to get the UK government to accept in full the European Aarhus Convention. This would ensure our rights as citizens to access justice without it being prohibitively expensive. In particular, environmentalists who lose cases brought against polluters would not be buried under millions in legal costs.

“My view of the world is - as the Chinese say - crisis / opportunity. The crisis is now more clear than it has ever been. We have seen the emerging crisis - as I did when I was at university, which is a long time ago now. With each passing year it becomes more obvious.

“When you have the Intergovernmental Panel on Climate Change saying we have 12 years to make a serious shift if we want to save civilisation essentially - that’s a turning point in culture. I now feel that the job is really saving civilisation. If you want to save civilisation you have to take care of the environment, because civilisation depends on the environment. It’s the most obvious thing.”

Transforming civilization

Thornton goes on: “The crisis is more clear because things have got much worse since I began, in terms of climate change, loss of biodiversity has accelerated enormously in the last 30 years. I try and carefully monitor the science in all these areas as much as I can. I have been watching the earth warm and these species die my entire adult lifetime.

“How can you go on - and the answer is that you can go on if you dedicate yourself to saving civilisation. And then, ‘is it possible to do that’?”

This tireless campaigning has placed James at the intersection between those members of the public most concerned about the environment, corporate power and the government, and its legal system.

His high-level strategic approach and exhaustive knowledge of the detail of UK law means there are perhaps few who understand the interplay of power in the UK today as well as he does.

Brexit and China

James has commanded a front row seat as the theatre of Brexit has unfolded, and his review is damning. He is keen to share what he has learned about Brexit with anyone keen to learn.

He also holds a particular interest in China, and has spent a considerable amount of time working with Chinese officials and legal professionals in implementing what the Chinese Communist Party has called the Ecological Civilisation through the reform of its legal system. There is much to be gained from comparing Brexit UK with China in terms of how each country is acting on the existential threat of climate breakdown.

Let’s begin at home. The unfolding calamity of Brexit has already had profound and long lasting impacts on environmental regulation in the UK, and we are only just at the beginning of this process. James begins by expressing dismay: “My greatest sadness is that a great country is leaving the stage.

“Britain has had an enormously positive and powerful impact in Europe even though it has always had this love-hate relationship in terms of environmental regulation. And one of the successes of the European project has been environmental regulation. The standards today are much higher than if the countries had made it on their own. The ambitions set were very high. Britain, even when it has resisted new regulation, is often better than other countries at following the rules - its part of the national character.”

Environmental protections

The fear is that if Britain continues with Brexit, it will no longer be beholden to European regulations and our air, our rivers, are farmland and our cities will be damaged as a result.

Brexit will inevitably have a profoundly negative impact on environmental regulations in the UK, he warns. “Even with good intentions there will be so much chaos in terms of law and rule making in the UK that environmental regulation will not be the main focus and that the environment will therefore suffer”. Further, “the big industrial players will always argue for reduced regulation.”

The direct threat of Brexit is that the act of transferring vast swathes of EU regulation into British law will allow corporations - incumbent economic actors - with little regard for environmental concerns to gut these rules from the inside. This can be clearly understood with reference to the work ClientEarth has done on clean air.

“The negative economic consequences will make it harder to protect the environment. Will the government do what it says in retaining environmental standards? There is an opportunity - we could do even better. But there is a risk that the attention will be attention will be elsewhere, the focus will not be on protecting the environment.

“The government isn’t really coping even with the negotiations, let alone the reality. When the reality hits, will there be strong focus be on protecting the environment. One can hope so, one can argue how things could be better. But I doubt it. It is going to take a lot of work by citizens demanding environmental protection.”

Clean air

James confirms that Britain leaving the negotiating table could also mean that the more progressive European countries will lose an important ally in protecting and enhancing EU-wide regulations. Britain has, for example, been “one of the leading voices for good, strong Common Fisheries Policy that would allow for sustainable fishing. So there will be arguments where [Britain’s] absence will make a difference.”

The argument that Brexit will be an opportunity for business to undermine government regulation has been articulated by environmentalists almost since the referendum. But James is able to provide clear and compelling evidence of how this will play out.

He cites the work around forcing the government to meet EU regulations on clean air, particularly in London where traffic pollution is harming people’s physical and mental health.

“UK citizens are now really clear that they want clean air, and do not want to die from air pollution. I think it would be hard to reduce legal requirements. But the wrong government might well try, and the wrong government might well succeed. And in doing that, would they try and take away a citizen’s right to enforce the law against a UK government? They might well try, and they could well succeed. These issues of how the law settles are completely open.

“The way that all laws are being taken over from European law into the corpus of law in the United Kingdom is that some of it becomes primary legislation. There will be an air quality law. But the key provisions of this air quality law that will determine whether a child is exposed to air pollution - what is the level of air pollution that is allowed - it looks like that will be coming over as secondary legislation.

“Secondary legislation is easily amended and Parliament gets little or no scrutiny. So the fear - and it is quite a correct fear - is that environmental legislation, labour legislation, could be brought over and the key operative parts that determine what the impact the legislation has on real human beings could be put into secondary legislation - and then some midnight Tuesday operation could go on where suddenly you find it’s all much more lax than you thought.

Shock doctrine

“Such a government could claim they have all the same laws, and they are meeting those same laws, but it just so happens that the level of requirements has gotten much lower. And that is enormous. It requires huge vigilance - and how will you interest the public in that when only geeks like us care? It has a big impact - more kids getting asthma, and those with asthma getting worse.”

He adds: “All these laws were built up over decades, and they took lots of work over decades and decades. So for them to all come over, and to have to potentially start over on all of them - in one country when the great efficiency of the EU is that they apply to every country - is an enormous ask.

“For a hypothetical government with bad intentions this is an enormous opportunity to make all of the standards worse. It’s rather like Shock Doctrine. If you have a government that is ill disposed to environmental regulations and protecting its citizens...you can see the results.”

Rough trade

The second major area of contention around Brexit is trade. The most vociferous advocates of leaving the EU argue that this will allow for free trade agreements with countries all around the world - increasing exports for British industry and creating jobs while also importing cheaper produce and reducing prices at the till.

Both these ‘benefits’ are predicated on EU produce being more expensive - because of the high environmental and labour regulation which has been introduced. The promise of free trade agreements has not come to pass - but do UK shoppers really want meat and other foods from deregulated producers?

“If we leave, under whatever arrangement, that allows us to have entirely separate trading arrangements the naïveté of current government actors will be exposed and we will find that out that it has not been easy to get even better trading relationships with the rest of the world, quite the opposite.

“We will then be extremely vulnerable to the United States forcing [its produce into the market] - the short hand is chlorinated chicken. The Agriculture Secretary in the United States has made it clear that ‘if you want a trade deal you will have to take all our farm produce the way it is’ - and it is a very different set of standards to the EU.”

He also confirmed that there was a “genuine threat” that the UK would have to accept imports of food and other goods that only confirm to the standards of the originating country, and not those of the UK. This is a trojan horse that will deliver chlorinated beef and hormone injected beef from the US, Australia and other trading partners to our supermarket shelves.

Black hole

“If we get what the people who love Brexit love to call sovereignty, the sovereignty to have our own trade deals - what they do not seem to understand is that trade deals are done on the basis of power entirely. It always comes down to power. ‘The rules are going to be set the way we want them because we are powerful’. That’s the way it is.

“Is the US more powerful than the UK in these terms? Well most countries are - certainly the big blocs are. The US is, the EU will be, China is, Russia is. You may be driven to take the lowest common denominator. It’s not what people say they want. But they may be forced into that position. It’s a genuine worry.”

Whether we leave or not, Brexit has already caused enormous damage. The momentum for environmental regulation - think of the Climate Change Act - which was built up by decades of hard work by campaigners across the UK has been lost. There has been almost no parliamentary debate, news coverage or national conversation about the environmental threats - large and small - that we must address. Extinction Rebellion taking over central London occupied a few days between years of Brexit debate.

“The other thing that is really upsetting about Brexit is it has been just a colossal black hole in everyone’s time and attention,” James said. “And it’s not going to stop. If May’s proposals to go through, there is another two full years of negotiations.

“As since the UK government has not said peep about what it actually wants, you will have the same arguments for another two years. It’s been three years. In that case, it will be the government in complete standstill for five years, not accomplishing anything at all...It’s a tremendous amount of more nonsense before you get to the end of the process, including renegotiating all these laws, on environment, labour, everything else.

“And this is the time when we have 12 more years to make a huge change if we are going to save civilisation. At the most crucial time in human history to save civilisation for future generations, Britain has decided to take itself off into a crazy, self regarding, destructive, downward spiral and focus on nothing meaningful.”

He added: “There were very negative players. Russia had a very big impact on Brexit. Russia - and Trump - had an interest in the EU collapsing, because the EU is a very progressive project. For both, Putin and Trump, the disintegration of the EU to whatever extent possible removes a beacon of hope from the whole world, and an alternative power bloc.”

Incumbents

The farce of Brexit is at its essence a conflict of beliefs about who is the perpetrator, who are the victims and who is the rescuer - to use the language of Stephen Karpman’s drama triangle.

The Brexiteers believe business is vital and benevolent - creating wealth and jobs - while the state is authoritarian, limiting, dangerous. Remainers seem to feel that the state is necessary, protective, benevolent - and that the big state of the EU is better placed than the UK government to hold back the tide of multinational corporate power. But for both, the citizenry is placed in the position of victim - needing business or government to meet its needs.

The story that James tells is, to me, far more compelling because it is the citizen that is given the role of hero - more in the school of Joseph Campbell - and it falls to us citizens to challenge power: and the malevolent force in this story is the ‘incumbents’ of corporate monopolies who inhibit innovation in the major industries. This is very much in keeping with Adam Smith’s attack on monopoly power in all its forms. The victims, here, are the small companies bringing renewable power to the market. But it falls to us to slay the dragons.

“The car companies are a good example of this. There was an announcement recently of an investigation by the EU into what appears to be - the EU thinks - collusion between car companies to prevent the introduction of pollution reduction systems. They created a cartel - in this case a complex monopoly - to prevent the introduction of pollution technology that they knew would save lives, and to delay it for as long as possible. Astounding.

“They did not start out with bad intentions. Diesel engines look like a good idea: they are efficient and they last a long time. And, by the way, they make a lot of money. So let’s ignore the bad news about them, and then we go a few more feet into badness by preventing pollution control because we will save quite a bit of money. We will be able to run it this way for five more years, because that will generate this much profit.”

Killing the dragons

“It does not start out with evil intentions, but you end up with this banality of evil accounting which turns their actions into the actions of monsters. They think they are making rational decisions - they are making rational decisions, but they are making immoral decisions, sometimes unlawful decisions.

“What do we do to shake them up? Back to this idea of the incumbents, so you have incumbents in the car industry, and in the energy industry. You have new companies that come in who can deliver clean transport, who can deliver clean energy. But the companies that are inventing that stuff, they are entrepreneurial, they are small, generally. They have the cool technology.

“But they do not have the wherewithal to fight the incumbents in court, they do not have the money. They do not have the expertise. The governments do not have any interest in doing this because the incumbents have so much influence.

So Germany looks like a green country, but as you begin to understand more deeply and as the Green party will tell you, ‘we are in some ways Green but we are also run by the car companies’, the influence of the car companies are so enormous that the country is beholden to them.

“So who is going to do it? The incumbents are sitting in the middle of the roadway, like dragons. And if you cannot move them, then the good solutions are not going to flow through. The markets for the first time can deliver this stuff, but the markets on their own are not going to because you have these dragons sitting in the middle of the roadway. So who is going to kill the dragons? Citizens have to do it. But then you need sharp weapons. And that is where litigation comes in.”

ClientEarth

James here explains the role of ClientEarth. It is not the hero, but instead a weapon in the arsenal of the citizenry in confronting its nemesis - polluters and vested interests. But just when we need this weapon most, as we are about the confront the final ordeal of climate breakdown, Brexit threatens to blunt this axe.

Brexit poses a direct threat to the work that ClientEarth does. This includes further uncertainty in relation to an application for EU funding to support environmental NGOs in China. James argues that the space for NGOs to work in China is now opening up, even as it closes down in European countries where right wing parties are coming into power. “This will be thrown into question by Brexit, with our HQ then being in a non-EU country.”

The charity currently has 90 lawyers practicing in courts across the EU, with 100 cases coming on in member state courts or the higher European courts. This work is “entirely unaffected”. But Brexit has sent shockwaves through its London offices.

James estimates that 40 percent of the UK-based staff are EU citizens, and there remains deep uncertainty about their status after Brexit. This means young families having to move countries, severing ties with family and community.

“Where will our employees be able to live? We do not know the honest answer. We have had to bring lawyers in, to advise them on their rights, so they can begin to understand where they might apply, and where there will be problems.”

Ecological civilisation

The potential breakdown in British environmental regulation during Brexit is placed in dramatic relief when James compares it to recent events in China. We take great pride in being an open, democratic, free market society which we compare favourably with the autocratic quasi-Communism in ‘the East’. The reality is more complex. James has spent the last five years working with high ranking Chinese officials to reform the law - giving insight which is incredibly rare.

China has instigated its transformation into an ‘ecological civilisation’. This promises to fundamentally change all aspects of Chinese national and civic life. “This is a deep, positive and powerful concept, which has given me a lot of hope,” James tells me. “They mean it. I have had conversations with a variety of senior people and ecological civilisation is a meaningful concept - it is not a slogan.”

He adds: “It’s quite clear that from the top on down in China they need no convincing, they understand the science, they completely get it, and they are trying to turn their whole country around as fast as possible on the environment - and they are very very clear about it. Here you have the Rupert Murdoch influenced media in the English language world sowing discord, and you have ExxonMobil and its peers sewing discord so that otherwise intelligent people are confused about these things.

“That does not happen in China. The politicians are also engineers - on the Politburo there are a lot of engineers - so if they see there is a problem, what an engineer says is, ‘how do we solve that most efficiently’. And it is a completely different mindset. They are saying, how do we solve this efficiently? That’s where we come in, we and other Western experts, or foreign experts are being brought in as advisers.

There are eight dimensions, including economics, regulations, agriculture, industrial policy - and the legal system. “They are throwing hundreds of their best intellectuals at this. This is very remote from anything that is going on anywhere in the world.”

Planning horizon

The leadership in China is well aware that its own power may not extend out of the major cities - with the popular saying ‘yes, but the Emperor is rivers and mountains away’. So they are leveraging change by rewiring the legal system and giving populations on the ground new legal enfranchisement.

James has been working with the higher echelons of Chinese society to fundamentally transform how the law operates. Here too, the citizen (or community) is cast as hero, not the lawyer, or the leader, or the corporation.

It feels almost uncomfortable to write anything positive about China when the human rights abuses are shocking, including its treatment of journalists. James is not naive about China. He understands concerns in the US and the UK about the development of this global power. He cites for example the fact that only China rivals the US in the development of artificial intelligence. He is also acutely aware of the issues around what we understand as human rights. “What China is up to in some regards - I can understand people being concerned about.”

Permits which allow companies to operate are now being drafted by lawyers so that companies can be sued for damaging the environment. For the first time Chinese citizens are now empowered and actively encouraged to sue companies - and local governments.

ClientEarth has been providing advice to the Supreme Court in China so NGOs can sue polluting companies. It has also been training prosecutors - and judges - to work on this novel environmental legislation. “We now every year have training for hundreds of Chinese judges, bringing global experts on legal decisions. This is fundamental. It is a highly intentional shift,” he argued.

“When you speak to senior officials, they say, ‘we are very clear that we have polluted air, soil, food that is already affecting the economy - we intend to still be here in 2,000 years with healthy people, healthy economy, healthy environment. We have a long planning horizon, and we need to be addressing these issues immediately. We think we also have to get the people involved - because the people are also very angry. We are trying to root out corruption in the system, if we allow NGOs and prosecution to be allowed in enforcement we will have a different regime’. I can only applaud this.

Mobilising citizens

“We have been working with them in a dedicated way now for seven years to build a regime of enforcing the law. It’s a fascinating inquiry. What do we need now so that every company in China knows that there are laws - because there are - saying there needs to be pollution control, and every company knows they are not allowed to ignore them, because in the past they were allowed to ignore them. This is a big shift. You get a different world.”

The threat of climate breakdown confronts each and every person on this planet, as does the collapse in biodiversity and the continued industrial pollution of both urban and rural landscapes. Every community, every nation, needs to respond in the same way.

James has been able to mobilise a positive and effective response to these threats, and has learned some important lessons along the way. The single most important for me is that it is you and I -citizens and communities - that can and will affect change. Corporations and governments will only act when we force them to. James has shown that this remains possible.

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