Environmental law gets radical - Polly Botsford

As inertia hampers the fight against environmental degradation, IBA Global Insight makes the case for shifting the agenda from breaking conventions to enforcing them.

Just days after the Rio+20 Earth Summit had been condemned as a failure by the environmental movement, the very same movement was able to herald a landmark victory in an appeals court in the United States. 

In the District of Columbia, on 26 June, three judges turned down an appeal brought by what is known as the Coalition for Responsible Regulation against the Environmental Protection Agency (EPA).

The Agency had begun to assert itself as the body charged with regulating carbon emission limits. In the appeal, its power to act as such was being challenged by the Coalition (made up of states such as those of Texas and Virginia and various national coal, mining and real estate interests – the case was nicknamed ‘Fossil Fuels v EPA’).

The judges unanimously found against the Coalition’s arguments that the science of global warming was not sufficiently well-supported and that the EPA was relying on unreliable studies. They agreed with the EPA that since carbon emissions have been shown by the science to be harmful, it was entitled to impose limits. In other words, emissions from vehicles and coal-fired power stations in the United States should be regulated by existing laws and agencies. 

But the case is also important because countering the hundreds of consolidated petitions against the EPA were a number of environmental amici curiae, including an organisation called ClientEarth. ClientEarth is a public interest environmental law firm based in Hackney in East London. It is a very different sort of law practice: its client is the Earth and it looks for ways to use the law to change the behaviour of government (and so its citizens) on key environmental issues. It submitted a weighty legal opinion supporting the EPA – the first time that a European organisation has done so in a case like this in a US court. 

Its CEO, James Thornton, used the European experience to counter the doom-mongering of the Coalition. As he said at the time:

‘We argued that greenhouse gas regulations don’t damage the economy. The European Union’s economy hasn’t been damaged by the Kyoto Protocol or the Emission Trading Scheme. Indeed, alternative energy provides increased energy security and the potential for economic growth.

ClientEarth is a product of a radicalisation of the environmental law sphere that has developed in recent times. Though public interest environmental law is not new, the US has had such lawyers for some time now (one of the largest of such organisations there, EarthJustice, won its first victory against Disney way back in 1972), it is new to the UK and the EU (ClientEarth also has offices in Warsaw and Brussels). This particular public interest firm is funded not by the client but by philanthropists and the occasional grant to bring enforcement cases, to influence drafting of new laws (particularly in Brussels) and to carry out research on environmental issues. It also employs a scientist because Thornton’s mantra for environmental law is: ‘start with the science’.

This radicalisation has come about as existing environmental laws have been seen as failing to deliver. This is not for sheer want of law: the current canon we have now is very substantial (see box on page 36). It has built up over the years from very sparse beginnings as public health laws from the Victorian era (interestingly, they were introduced with just as much reluctance as we saw in the EPA case: in the UK, it was not until ‘the Great Stink’ of the mid-1800s, when the stench of excrement flowed into the River Thames (and thus right by the Houses of Parliament), that parliamentarians would act to improve sanitation and pay for new sewage systems).

This was pretty much how it was with only incremental growth on similar themes until the 1970s when environmental law expanded exponentially to reflect the equally exponential increase in environmental problems. New laws and new sources of law have emerged in the face of ecological crises. The EU has been particularly prolific
(and since 1997, Article 6 of the European Treaty has contained an ‘environmental protection requirement’ which means that consideration of environmental concerns must be integrated into all EU policy) producing hundreds of laws that have gone on to shape the domestic legislation of the European Community countries.

Some EU law has been derived from the other new source of environmental law, international conventions and treaties: on the law of the sea, on oil pollution, on pesticides. There are estimated to be over 1,000 treaties on environmental law, more than any other area of law; the canon is wide and deep.

But for all this, critics point to the limited effect these laws have had, as well as their multiplier-effect complexity, to deal with the issues that faces us: the failure of forest laws to protect against deforestation, the failure of conventions against pollution to prevent pollution.

International environmental law in particular tends to under-achieve; this is in part because enforcement is so difficult, in most cases only states can enforce these treaties against another state and this is an unappealing path for most to take, and because there is no obvious court or jurisdiction for such cases to go to.


'‘We argued that greenhouse gas regulations don’t damage the economy. The European Union’s economy hasn’t been damaged by the Kyoto Protocol or the Emission Trading Scheme. Indeed, alternative energy provides increased energy security and the potential for economic growth’'
James Thornton
CEO, ClientEarth

The Montreal Protocol – that was introduced in 1987 to protect the ozone layer and appears to have gone some way to prevent ozone damage from getting worse – is held up as an example of the power of public international law, but it is the exception not the rule and there are any number of conventions that are routinely flouted.

The victory in the EPA case demonstrates that even when there is a law (the Clean Air Act) and an agency that can enforce the law (the EPA), it is still an uphill struggle to make that enforcement happen (and the State of Virginia has indicated that it may appeal against the court’s findings so the victory may be shortlived).   

It is these shortcomings in the effectiveness of environmental laws that have led to a radicalisation of approach within the environmental law sphere. New ideas and new paths have emerged, such as ClientEarth; in the face of continued ecological devastation, environmental lawyers are making the case for more deep-seated change.

For example, better access to environmental justice has come into sharp focus. Currently, the public, individuals and NGOs often do not have access to justice because it is too costly to bring a claim or because they are only allowed to bring a claim where they are considered to be ‘individually concerned’.

By improving access to justice, reformers such as ClientEarth hope to bring to life many environmental laws that lie dormant on the statute books.   

One mechanism that supports them in this is a 1998 agreement, the Aarhus Convention, which declares that better access to justice should be provided to citizens. The first step then is to ensure that signatories to that Convention properly comply with its principles.    

Hand-in-hand with questions over access to justice is the lack of an appropriate forum for bringing environmental disputes. Because so many environmental laws are international in scope, there are often huge problems in determining the right forum for cases. As a result, some environmental lawyers are now putting forward the notion of an entirely new court dedicated to international environmental issues.  

Stephen Hockman QC is Head of Chambers at 6 Pump Court in London and the founder of the International Court for the Environment (ICE) Coalition, which is campaigning for such a court. He explains the issues: ‘We need a body which can handle transnational environmental disputes – not only those between states but also those between non-state actors such as an NGO and a multinational or a multinational and a state.’  

In addition, the International Court of Justice (ICJ) has shown itself unwilling to grapple with some environmental issues. This was recognised in the dissenting judgment in the case brought by Argentina against Uruguay regarding pollution of the Uruguay River in which it was regretted that the ICJ had missed: ‘what can aptly be called a golden opportunity to demonstrate to the international community its ability, and preparedness, to approach scientifically complex disputes in a state-of-the-art manner.’

 

Hockman is keen to emphasise that this is not a court intended simply to harangue multinationals: ‘At the moment, what is lacking is a forum for serious and considered jurisprudence to develop. We are not out to demonise specific individuals or companies but to nurture sophisticated judicial settlement on issues affecting the environment.'


'‘We need a body which can handle transnational environmental disputes – not only those between states but also those between non-state actors such as an NGO and a multinational or a multinational and a state’ '
Stephen Hockman QC
Head of Chambers, 6 Pump Court in London and founder of the International Court for the Environment (ICE) Coalition

It appears that the idea of an environmental court is no longer pie-in-the-sky talk, as Hockman says: ‘there is now a very well acknowledged and accepted case for improved dispute resolution procedures in this area. Such acknowledgment was recently given as part of the World Justice Forum [which preceded the Rio+20 Earth Summit]’.  

The ICE Coalition’s current proposals are that an informal and voluntary tribunal is set up whilst we wait for the world’s governments to sign up to a formal court. Hockman anticipates that this transitional version will be a start down that road.

This voluntary tribunal is a less radical (and, therefore, perhaps more feasible) notion than another approach put forward by Polly Higgins, the lawyer and controversial author of the concept of ‘ecocide’.

In Higgins’ vision, ecocide would become the fifth crime against peace by creating a legal duty of care not to support destruction of the natural earth. Ecocide would become part of national laws but, ultimately, she argues, would be an international crime for which the International Criminal Court in The Hague would be the court of last resort.

Just as revolutionary as the crime of ecocide is the concept of wild law: laws that would give a legal personality to a specific species or a place in order that, for example, their habitat could be protected from an industrial project. Wild law advocates argue that the current canon of environmental laws are failing to eradicate or reverse ecological disaster because they have at their core the notion that the Earth is a resource to be exploited rather than existing in its own right. They say that all that the laws do is to seek to control and limit that exploitation; to redress the imbalance between man and nature, nature has to be given a legal voice. At the moment, however, wild law is a radical – and radically different – proposition and may well remain out in the wild for some time to come.  

 

Milestones in environmental laws

1858    The 'Great Stink' of the River Thames in London triggers groundbreaking laws on sanitation  

1931 The Geneva Convention for the Regulation of Whaling is signed; one of the earliest ‘conservation’ conventions

1957 Treaty of Rome establishes European Economic Community which later becomes the EU and is the source of much environmental law in the region

1968 UNESCO Biosphere conference is held in Paris; first of its kind to raise issues of pollution and limited resources and precursor to arguments for ‘sustainable development’

1970     Earth Day is first held in the US on 22 April; a peaceful mass demonstration to highlight environmental issues; it is still held each year

1974     UN Convention on International Trade in Endangered Species is signed; a crucial step in controlling illegal trade in ivory and furs

1974     The Rowland–Molina Hypothesis is published containing landmark findings that chlorofluorocarbons may erode the Earth’s protective ozone layer

1982     UN Convention on the Law of the Sea is signed; provisions on ocean conservation, pollution prevention, protecting and restoring species

1983     The US’s Environmental Protection Agency and the National Academy of Sciences’ report on the build-up of greenhouse gases in the Earth’s atmosphere says they will lead to global warming

1987     Montreal Protocol is signed after scientists find hole in ozone

1992     The UN Framework Convention on Climate Change sets voluntary targets for carbon dioxide reduction goals but lacks of support from the US

1992      First Rio Earth Summit organised by UN

1995     The Intergovernmental Panel on Climate Change (IPCC) sees hundreds of prominent climate scientists release their second report that states that: ‘projections of future global mean temperature change and sea level rise confirm the potential for human activities to alter the Earth’s climate to an extent unprecedented in human history’

1997     Kyoto Protocol adopted; to take effect from 2005

2001     UN Agreement on Fish Stocks – rules for fishing in international waters – comes into effect

2002     EU ratifies the Kyoto Protocol, followed by Russia in 2004; by the time it takes effect in 2005, only the US has not ratified it

2006     Wild law Conference held in Brighton, UK, with speaker Cormac Cullinan who first coined the phrase

2007     China overtakes the US as world’s biggest producer of greenhouse gas emissions

2010    Eradicating Ecocide – Polly Higgins publishes controversial book on ‘the fifth crime against peace’

2012    Rio+20 Earth Summit is held; US President Barack Obama, UK Prime Minister David Cameron and German Chancellor Angela Merkel do not attend



In the meantime, existing environmental laws could be improved and the EU and national governments do recognise this and are beginning to consider what improvements could be made. The laws could also work harder: there could be greater regulatory policing of pollution, endangered species, bird habitats and so on. But this is often a question of resources; regulators with a limited budget cannot prosecute to that extent (and, of course, resources have been harder to come by as a result of global economic problems). And the question of resources quickly becomes a question of political will.  

Political will is particularly important in environmental law because, like civil rights law a generation ago, it stands, at this point in time, at the stormy confluence of politics and law. The flow is both ways: first, political will is what makes some laws effective (for instance, the EPA’s stance on greenhouse gas emission regulation is underpinned by the political support of the Obama Administration). Secondly, the law can be used as a political weapon – bringing cases as a means of changing policy or simply enforcing existing policy. As Thornton says: ‘we start with the science and work out what best can be achieved using the law as a tool’.

But this confluence of politics and law raises the debate as to what extent the courts should be used in this way. In the UK, the courts have trodden a fine line here, as Professor Richard Macrory CBE QC, Director of the Centre for Law and the Environment at the Faculty of Laws of University College, London, and a barrister at Brick Court Chambers, explains: ‘environmental law raises the question: who is best placed to work out what the laws should be and how they should be enforced, politicians or judges?’

One example of this fine balance is in the judicial review challenge of the UK government’s proposal for a third runway at Heathrow back in 2010. The case was extremely high profile and related to whether or not the government should have reconsidered its air transport policy in light of subsequent climate change legislation. But the larger political question, like the elephant in the room, was whether a third runway should go ahead.  

In his High Court ruling, Lord Justice Carnwath, the UK Supreme Court judge, would not answer that question and stated at the very outset that he did not believe it was up to the courts to decide on national policy: ‘Whether there should be a third runway at Heathrow Airport is a question of national importance and acute political controversy... This court is concerned only with issues of legality.’

Politicising environmental law enforcement could be detrimental in other ways: getting parties embroiled in complex litigation rather than finding a political solution may not be an efficient way to solve new problems. Macrory cites the example of India where the judiciary take a more interventionist approach, and where cases regarding the pollution of the River Ganges, for instance, have dragged on for years without resolution: political intervention may have produced better and faster results. As Macrory summarises: ‘if you hand over decision-making to the judges, it can let the politicians off the hook.’


'‘…if you don’t ensure that the rule of law permeates into a modern society then environmental laws will always be undermined’'
Hans Corell
former Legal Counsel of the UN

Also, using the law to effect change only works in places where there is the rule of law and it is upholding the rule of law that some say is the key to unlocking environmental (as well as other) problems. The World Congress on Justice, Governance and Law for Environmental Sustainability organised by the UN Environmental Programme in the run up to the Rio+20 Earth Summit gathered well over 200 chief justices, attorneys general, auditors general, chief prosecutors, and other high-ranking representatives of the judicial, legal and auditing professions. It adopted a Declaration highlighting the importance of the judiciary, the prosecutors and the auditors in implementing, developing and enforcing environmental law.

Hans Corell, who is a member of the High Level International Advisory Committee for the Congress and former Legal Counsel of the UN, explains: ‘if you don’t ensure that the rule of law permeates into a modern society then environmental laws will always be undermined.’

Corell is sensitive, however, to the complexities which environmental laws raise. He adds: ‘environmental laws have been difficult to date because the science has not been all that clear. But ultimately once rules are being decided upon the best chance of having these rules upheld is to reinforce the independence of the judiciary, the prosecutors and the auditors, and maintain the integrity of the judicial process.’

What Corell is asking for would be no small task to achieve – and, for that, it is probably the most radical notion of all.  

 



Polly Botsford is a legal and current affairs journalist. She can be contacted at polly@pollybotsford.com
More information on the World Congress on Justice, Governance and Law for Environmental Sustainability can be found at www.unep.org/delc/worldcongress.