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November 28, 2018
Environmental lawyer and social entrepreneur James Thornton, the founder and CEO of ClientEarth, delivered a November 14 lecture in Washington, D.C., on how lawyers throughout the world are taking action to protect the environment. His lecture was the eighth Lloyd N. Cutler Lecture on the Rule of Law hosted by the Salzburg Global Seminar.
ClientEarth, founded in 2007, uses advocacy, litigation and research to address climate change, as well as biodiversity loss and toxic chemicals. Client Earth, released last year and co-written by Thornton and his husband, Martin Goodman, describes the nonprofit's success since its launch. In addition to heading ClientEarth, Thornton serves as an environmental law advisor to the Supreme People’s Court of China, a country which will, according to him, "leave the U.S. in the dust on clean energy."
EESI staffers Clayton Coleman and Maruth Grafelmann had the opportunity to interview James Thornton, whose replies were edited for length and clarity.
So what the Reagan administration did was to stop enforcing all the environmental laws. It knew that it couldn’t get rid of them because people wanted clean water and clean air, but if it stopped enforcing environmental laws, you’d get pretty much the same result. We looked at the enforcement of laws in previous administrations, and about 300 federal cases had been taken every year under the Clean Water Act. What that meant was that, if you were a company regulated by the Act, you knew that you were going to get caught if you didn’t comply. But that all stopped. Then, with just a very small team, I started bringing federal cases. I brought my first 60 cases within six months, because I wanted to make a big impression.
We won all the cases. We got everyone’s attention, and back in those days, it was possible to embarrass the federal government—I don’t know if that’s possible anymore, which is a problem. But they actually changed the EPA administrator. And then they started to bring cases again, so our project was really successful. Ultimately, I wanted to put myself out of that business, because if the government was doing its work, citizens wouldn’t have to bring those enforcement cases. Now, citizens do it here and there when it’s needed, but you don’t need that systematic effort anymore.
Trump is doing everything Reagan did and worse. The good news, in terms of using the law to stop his actions, is that environmental organizations in the succeeding years have become much bigger and more powerful than they were. Citizens now are much stronger than they were, so however much Trump succeeds in doing... it’s temporary. A lot of the worst things he wanted to do have actually been blocked by lawsuits in federal courts by the environmental groups. There’s always hope.
Our Children's Trust [the organization representing the plaintiffs] is a wonderful case in that it’s being brought by very young people who are asserting that they have a constitutional right to have the government give them a good future, a healthy environment—and this proposition is relatively untested in the U. S. legal system. They’re saying the right to life, liberty and property, which are the basic constitutional bedrocks, are all being infringed by a government that refuses to take care of climate change. And in my opinion, they’re certainly right.
What is interesting about the case is that it has gotten a lot of attention by showcasing young people, who are always very appealing, which has raised the issue to a much higher level in the United States. The district judge had to decide in this case, like every case, whether the case should be heard because the plaintiffs were stating a viable claim. She decided that they are stating a viable claim and, if I recall correctly, said something like “In my view, it is perfectly clear that you need to have a stable climate for a healthy society, and that’s what these people are asking for.” The current government then took an appeal directly to the Supreme Court and asked it to stop the case from being heard—which was outrageous. As far as I know, the Supreme Court has never stopped a case from being heard. On November 2, the Supreme Court allowed the case to proceed.
When the district court judge says “this case is a valid case, it’s valuable, let’s go forward with it,” that’s reason enough to proceed. That's what the courts are in the business of doing: they'll hear the young people’s arguments, and they can win or lose, but either way you had the argument. The Trump government was saying, “This issue is so frightening, so dangerous, that we must prevent the argument from even being made in court.” So now the government has gone back to the Court of Appeals and is also trying to get the case stopped.... The Ninth Circuit is a very good court, so it’s very unlikely that they will prevent the case from going forward. So it looks like the case will happen, the young people will get to make their case.
There are similar cases going on around the world. I think these cases are investigating what are the absolute bedrock rights of citizens with respect to a healthy environment, and that’s really never been done before.
What we don’t have in the United States are any environmental courts. In a few other places in the world, you have judges who are environmental court judges. You have some in New Zealand, Sweden, India, and in Australia. And just recently in China, interestingly. The Chinese have decided that they’re really going to work hard to clean up their environment; it is the prime directive at this point in China. They put together 3,000 judges to form an environmental court, which goes all the way from the provincial level up the Supreme Court. Here, in the federal courts you have an awful lot of good judges and very smart people, but they won’t be experts on climate change, so as these cases develop here, it’s up to the plaintiffs to go in and educate the judges. You can do that, and you can do it by bringing in real experts.
It’s hard for individual people to make cases. It would be hard for me to do it on my own. You do need the support of a team and some financial backing. I think the thing to do, really, is to get involved in one of these environmental groups. They essentially represent everybody, and many of them are very happy to hear from their members. So for your membership fee, you get access to some very good lawyers and you get all the information.
I see it as one of the great achievements that human beings have designed and created, that all the countries of the world came together to say “Climate change is an issue and we need to take it seriously. We have the goal of 1.5 degrees Celsius, no more than 2.” Then, as you know, all the countries had to go home and essentially come up with carbon reduction plans called Nationally Determined Contributions (NDCs).
In Poland next month, the countries are going to discuss a rulebook that will increase transparency about how you set NDCs and increase transparency on how you are actually complying with your plans. At the moment, it’s very hard to figure out what countries are actually doing. The idea of the agreement is that each country makes its own plan for what it can do, and it’ll all come together to keep warming below 2 degrees Celsius, no more. But then there’s a kind of virtuous game in which countries look over each other's shoulders and say “Oh, you’re doing it, I better do it,” or somebody else can say “We’re doing it and somebody else is not, so we’re paying the price.” That’s why this rulebook is so important. I hope some urgency comes out of it as well.
A lot of our work is to say “How can you supplement the Paris Agreement?” Even when the economics are on the side of renewable energy, you have market incumbents who still want to burn coal for the rest of history...That’s what they know how to do, they want to keep doing it.
That’ll be the same even if people come back with better Nationally Determined Contributions plans. The plans will say “We want to go in this direction,” but a lot of companies will want to go in the other direction. So then you have to get involved in moving these incumbents out of the crossroads. Get them out of the way so the traffic can move in the right direction. You can think of it as slaying dragons.
The Paris Agreement doesn’t instruct companies to do anything directly. It works through countries coming up with plans and the countries then telling companies what to do. But it will be hard to do it quickly enough, unless organizations of citizens get together and actually attack the slow-moving, badly-intentioned companies and get them out of the way. Then, the Nationally Determined Contributions plans hopefully can move markets in the right direction quickly enough with the right incentives and regulations so that you have a good future.
Interviewers: Clayton Coleman, Maruth Grafelmann
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