We work to protect the environment through advocacy, litigation and research. We use the best scientific and policy analysis when choosing strategic directions. Our legal action, whether in advocacy or in cases before courts and administrative bodies, is built on solid law and science.
Using law as a tool for social change
We believe that the law can be a powerful driver of positive social change. In the European environmental movement, public interest law has been an underused tool, and we have demonstrated that there is a strong case for building the capacity of the movement. Professor Dr Ludwig KrĂ¤mer has observed:
"Environmental organisations in Western Europe are structurally and financially too weak to defend environmental interests effectively over a long period of time...The environment, without a voice and without strong lobby groups, loses out in almost every specific conflict of interests."
The environmental issues we face collectively today also demand that environmental groups are prepared to respond in new ways. The major threats to our environment are global phenomenon, and as such the solutions must be global ones. Moreover, the biggest environmental issues - climate change, biodiversity loss, water scarcity and land degradation - are not only environmental issues but economic and security issues too.
Environmental issues such as climate change engage new environmental constituencies, with a central role for markets and investment. The right political, legal and regulatory frameworks are needed to mobilise the enormous flows of investment in global energy infrastructure towards developing and deploying low carbon technologies. Business leaders have a role as well as individuals and government.
Civil society has a powerful role to motivate these actors and create political pressure for action based on the scientific and economic evidence. We believe that the law and legal tools must feature in that mix, and it is useful to look at the specific contribution that law can make to environmental campaigns. The concept behind ClientEarth is based on a combination of talent linking law, science, economics and policy in a professional, interdisciplinary team. The mode of engagement for this team is that engagement and influence are backed by the power of legal action – litigation deployed in a strategic way where it can elevate moral arguments to legal action.
The contribution of law
Everyone is familiar with campaigning for environmental causes. Yet campaigns can become much more powerful when they are backed by the power of law. A carefully chosen case or series of cases is itself a campaign—a campaign using the courts to enforce the law.
This tough, diligent, patient use of the law to enforce environmental rights helps build civil society. It gives citizens the ability to make government and industry accountable and transparent. There is an extensive body of evidence that proves the efficacy of using law in this way.
Just three examples:
First, a classic citizen suit example: when the Reagan Administration stopped enforcing the Clean Water Act as a matter of policy in 1984, the Citizen’s Enforcement Project was set up. In a couple of years it brought over 100 successful cases in federal court against companies violating the Clean Water Act, and embarrassed the federal government into enforcing the law again.
Second, a British-African example: using the courts to combat global warming, the non-profit Climate Justice project assisted Nigerian lawyers to bring a winning case requiring Shell to end ‘gas flaring’, the largest source of greenhouse gas emissions in sub-Saharan Africa.
Third, a Private Equity example: the largest private equity deal to date in America involved Texas utility TXU. It had 13 new coal fired power plants planned. Environmental groups threatened suit on the theory that these plants violated the Clean Air Act. The private investors did not want the risk of litigation. The result was that TXU dropped 11 of the new plants and offered to negotiate the remaining ones. The deal went through: shareholders won, the private investors won, and the environment won.
Improving access to justice
Where the law can be brought in on the side of the environment it is very powerful. It can level the playing field between citizens and powerful interests. But there are some significant barriers to environmental justice in EU Member States and in the EU system itself. Through our EU environmental justice programme, we work to remove systematic barriers on access to justice in the EU and Member States.
In the UK, for example, the cost barrier in the legal system of England and Wales is very strong because of the so-called ‘English rule’ on costs, which requires the losing party to pay the winning party’s legal costs. In Germany, restrictive rules on access to the Courts similarly limit environmental justice. At EU level, existing decisions of the European Court of Justice almost eliminate the ability of NGOs to get access the European court.
Improving the access to justice is a long term challenge, and we are developing a series of complaints that target the problem. To the degree that we can reduce the barriers, we will aid all of the NGOs working in the field. This programme runs in the background of our other work, and will contribute to building our tools.