Imagine you are an American activist attorney newly arrived in Great Britain. You would like to work with local environmentalists, but the major organizations prefer to campaign rather than use the courts to hold lawbreakers, be they governments or corporations, accountable. Do you compromise on your principles and join a corporate law firm, or do you take a gigantic risk by starting a legal nonprofit and setting your own agenda?
That was the dilemma that confronted James Thornton before he founded ClientEarth, so named because it treats the Earth as its legal client. The nonprofit is a cultural transplant: a scrappy US-style public interest environmental law group grafted onto Britain’s centuries-old legal system. From a single employee in 2007, the organization has grown to 100 staff, including 60 lawyers qualified in a dozen legal jurisdictions. It has opened offices in Brussels and Warsaw, and within the last year alone it forced the UK government to publish revised plans to tackle air pollution, blocked the construction of a controversial giant coal-fired power plant in Poland, and obtained an emergency ban on logging in the country’s ancient Białowieza Forest.
Thornton moved to the United Kingdom in 2001. The laws on residency meant that it was easier for him to settle in Britain than for his British-born husband, the writer Martin Goodman, to live in the United States. Having retrained in the UK’s legal system, he planned to practice law in a strategic role in a large environmental organization. It took only a few meetings to establish that this was unrealistic.
In the United States, Thornton had spent nine years at the Natural Resources Defense Council (NRDC), a lawyer-led nonprofit environmental organization, fighting industrial polluters. In Europe he discovered to his astonishment that the NRDC had no real counterparts.
“Throughout Europe, there were only a handful of lawyers working full-time for environmental charities, mostly on work that emerged from the [campaign] work of the organization rather than from a strategic analysis of where the law could be pushed forward to protect the environment,” Thornton recalls.
ClientEarth’s programs cover climate change, biodiversity, ocean management, forestry, access to justice, and human health. Though best known for its legal challenges, the organization devotes many hours to briefing legislators and advancing an environmental viewpoint in backroom committees that shape policy.
“Once laws are written, companies spend vast amounts of resources trying to push their implementation in their own direction. The only way to safeguard the intent is for the environmental community to bring to the table the same level of expertise and legal sophistication [as big business],” Thornton says.
Karin De Schepper, cofounder of CleanAirBXL, a citizens’ platform, describes the work of ClientEarth as “very valuable” to citizens who stand up to authorities that disregard the law. She says that governments come down hard on individuals but “are not at all ashamed” to breach their own laws designed to protect public health.
With four fellow citizens, De Schepper is a co-plaintiff with ClientEarth in a case to force the Brussels regional government to practise robust air quality monitoring and bring nitrogen dioxide pollution in the city within legal limits.
“Without the legal expertise and financial sponsorship of ClientEarth, we couldn’t have taken the government to court, because we would have been reliant on our own resources,” says De Schepper.
ClientEarth opened its UK office in 2007 with seed investment from the McIntosh Foundation, a US family-owned philanthropy. Its support sparked interest among European funders who were curious to learn more but hesitant to commit to a model that was locally unproven. Other donors soon followed, including the Esmée Fairbairn Foundation, a leading independent UK grantmaking body.
Not everyone was receptive, however. In Client Earth, the eponymous book about the nonprofit, Goodman and Thornton write about a sense within the environmental movement that ClientEarth was “inappropriately transporting a foreign model into the system without understanding the local soil.” Though European environmentalists sometimes resorted to law, this step was mostly for tactical purposes, such as delaying a local infrastructure project, rather than for advancing environmental rights. “One of our organizational values is being bold and unafraid to take on the big issues,” says Karla Hill, director of programs at ClientEarth. “That may have ruffled a few feathers.”
Since the biggest environmental threats are worldwide concerns, it was clear that ClientEarth would need to work internationally to achieve its ambitions. But how does a small nonprofit—in 2016 ClientEarth had an income of £7.3 million ($9.6 million)— achieve international impact?
This is where adopting a strategic approach has paid off. Rather than fight isolated cases opportunistically, ClientEarth weighs the environmental importance of each proposed action and its potential to create precedents that can be leveraged.
Take, for example, the slew of cases it is waging across Europe to enforce the 2008 Ambient Air Quality Directive, which sets legal limits for air pollutants. In making air quality a flagship policy, ClientEarth chose a target that combines opportunities to attract media headlines and galvanize public support. Issues such as climate change can feel far removed from people’s lives, but no parent wants their child to grow up breathing polluted air. Exposure to pollution has been shown to stunt lung development and has been estimated by the European Environment Agency to cause around half a million premature deaths in the European Union each year.
Tony Long, a Brussels-based environmentalist, was director of the European Policy Office of WWF (the European equivalent of the United States’ World Wildlife Fund) when ClientEarth began a UK court action in 2011 to force the UK government to bring nitrogen dioxide pollution from diesel exhaust within legal limits by 2015. He says that in focusing on enforcement ClientEarth has struck at “the Achilles’ heel” of European environmental policy—the tendency of member states to pass good laws and implement them incompletely, or not at all.
The UK High Court dismissed the case, as did the Court of Appeal. Undeterred, ClientEarth appealed next to the UK Supreme Court and obtained a ruling that the government was indeed breaking the law. The Supreme Court then referred the case to the European Court of Justice (ECJ), which ruled in November 2014 that national courts have a duty to enforce the directive and to review the adequacy of national air-quality plans.
Armed with this judgment, ClientEarth has proceeded to initiate air-quality actions in Belgium, Germany, Italy, the Czech Republic, Poland, Bulgaria, and Slovakia. “What the air quality project is proving is that if you use litigation strategically, you can achieve effective change,” says Ugo Taddei, a Brussels-based lawyer at ClientEarth.
Need to Internationalize
ClientEarth entered Europe as a disruptive innovator with an American-inspired model of legal activism. But for the model to take root and scale up, it has had to adapt to the idiosyncrasies of national cultures and court systems. That has meant working through transnational institutions such as the ECJ to establish broad legal principles and precedents, while collaborating locally with nonprofits, citizen groups, and lawyers. By choosing to partner rather than to establish a large network of offices, ClientEarth is able to bring more actions, more rapidly, and achieve greater impact.
“The national NGOs have a better understanding of local issues,” Taddei says. “And we have the knowhow from our litigation across Europe to provide a good legal strategy.”
ClientEarth has amply demonstrated the power that shrewd legal strategy can bring to campaigning. However, there is no guarantee that courtroom victories will translate into robust environmental protections, at least not quickly. A case in point is the court-ordered air-quality plans that the UK government published in July 2017 and which environmentalists argue still fall short of the comprehensive remedies needed to clean up the country’s air.
Yet that does not detract from what ClientEarth is attempting, says Jenny Bates, air pollution campaigner at Friends of the Earth. “Were it not for the legal actions that ClientEarth has taken, the government would not have produced even the weak air-quality plans that we have today.”
As an organization, ClientEarth has reached a crossroads. Until now, the United Kingdom has been the pivot in its strategy of taking precedent-setting legal actions that can be built upon internationally. However, after Brexit, London will lose its strategic value as a gateway into the European court system. “Even though we have a Brussels and a Warsaw office, I think that if our headquarters remain in London, there may be a tendency for Europeans to see us as a UK organization,” Thornton says.
To protect the environment more broadly, ClientEarth will need to internationalize further and work in countries that lack the mature environmental movements and legal institutions of Europe and the United States. Though it is early days, some of this strategy is taking shape. At the invitation of Chinese authorities, Thornton spent part of 2015 training judges in how to handle environmental cases and advising Chinese prosecutors on how to design court actions on behalf of Chinese citizens when officials break environmental laws. In Ghana, Republic of the Congo, Gabon, Liberia, and Ivory Coast, ClientEarth is working with local lawyers and civil society representatives to reform and enforce laws on forest management and strengthen local capacity.
“What we’re trying to build through our work in Europe and beyond is a society in which there is transparency in government and a culture of compliance with law—the type of society in which you would like your descendants to live,” Thornton says.