Rio Earth Summit ‘fluff’ highlights need for public interest lawyers
By Polly Botsford
The verdict given by one well known environmental campaigner on the agreement emerging from the Rio +20 Earth Summit last week is damning: ‘283 paragraphs of fluff’. Heads of state of over 100 countries were supposed to step up the sustainability agenda; the consensus is they spectacularly failed. Oxfam tweeted: ‘[they] are re-arranging the deck chairs on the Titanic’.
The leaders in Rio should also be compared to their Victorian forefathers in the UK who reacted to the stench of excrement that flowed into the River Thames (and right past the Houses of Parliament) by closing the windows and dowsing the curtains in caustic soda hoping the problem would go away. It didn’t, and Victorian parliamentarians were forced to introduce the Public Health Act in 1858 to improve sanitation and pay for new sewage systems.
Excerpt from interview with James Thornton of
ClientEarth on the development of public interest environmental law (1:12)
Watch full interview
In fact, it was with this Victorian legislation that public health law began in earnest.
Since then, notions of public wellbeing have been dramatically expanded to encompass the wider environment. Environmental laws are no longer a matter of protecting the public against its own pollution, but about protecting specific species and specific areas, protecting an ecological system and even the Earth itself.
We now have notions of 'wild' laws: laws that would give a legal personality to a specific species in order that, for example, their habitat could be protected from an industrial project.
And we have arguments that we should introduce a fifth crime against peace into the Rome Statute of the International Criminal Court: ‘ecocide’.
Lawyers are changing too: Client Earth is a public interest environmental law organisation, operating in the UK and on the continent. It is a different sort of law practice because its client is the Earth. It looks for ways to use the law to change the behaviour of government and its citizens, on key environmental issues.
In the US, public interest environmental lawyers have been operating for some time now (one of the largest of such organisations there, Earth Justice, won its first victory against Disney in 1972). So it is no surprise that Client Earth is run by an American, James Thornton. Watch interview here
Thornton doesn’t sound much like a lawyer: ‘The environmental movement in the EU is focused on campaigning. But in campaigning you presume that a government can be asked to do something and will do it and that governments are beneficent and know what they are doing. But my view is that focusing on campaigning is an incomplete set of tools by which to protect the environment: the government may not be beneficent and they may not know what they are doing.’
‘Government[s] may not be beneficent and they may not know what they are doing.'
Certainly, the Earth is a very demanding client: the organisation has grown to 50 lawyers in just four years. Yet the Earth doesn’t pay any fees. Instead, the firm is funded by philanthropists, foundations and the EC. Its activities are wide-ranging: getting involved in drafting new laws (particularly in Brussels), teaming up with environmental NGOs to fight cases, and raising its own issues in various fora. The Aarhus Convention – a UN Economic Commission for Europe convention, adopted in 1998 - is an international agreement whereby state signatories must provide their citizens sufficient access to environmental justice. Client Earth has successfully argued that the EU, Germany and the UK fail to deliver on the convention in various ways.
Rio - the recent Earth Summit has been criticised by many
Environmental lawyers are thus pushing the boundaries of existing laws. In India, a campaigning lawyer, MC Mehta, who has fought cases on pollution of the Taj Mahal and the Ganges, successfully argued in the Indian courts that a clean and healthy environment is a human right and on that basis a citizen could challenge environmentally damaging policies or industries.
This concept of the law as a political weapon is reminiscent of civil rights law in the 1960s and 1970s (it is no coincidence, for instance, that Cormac Cullinan, who authored the notion of wild law, was once an anti-apartheid campaigner) and campaigning lawyers are seen as messianic, bordering on unrealistic. Also, their work may not resonate well in countries such as the UK where the judiciary largely prefers to leave policy to the politicians. As Professor Richard Macrory CBE QC, Director of the Centre for Law and the Environment at University College London and with Brick Court Chambers, observes: ‘The UK courts have often reiterated that they are not the forum for cross-examining politicians on national policy’.
The campaigning fervour derives from the fact that well meaning laws are only as good as their implementation and enforcement. These lawyers might, perhaps, be surprised to find themselves in agreement with the leader who told the BBC at the Earth Summit: ‘What matters now is action and implementation.’ It was the UN Secretary-General, Ban Ki-moon.
Polly Botsford is a freelance journalist and can be contacted at firstname.lastname@example.org