Can we catch up? How the UK is falling behind on environmental law

Transcription

1 HOW THE UK IS FALLING BEHIND ON ENVIRONMENTAL LAW : THORNTON : (2015) 27 ELM 193 Ca we catch up? How the UK is fallig behid o evirometal law The Uited Kigdom Evirometal Law Associatio Aual Garer Lecture 2015* James Thorto Chief Executive Officer, ClietEarth** Itroductio This is a lecture that has bee give by the most seior judges ad some of the fiest legal mids from Brussels ad Lodo. Ad today it is my tur, as a former aggressive America litigator from New York who eded up i Hackey, as a solicitor o less, to deliver it to you! My workig life has largely bee dedicated to startig a project, the a office ad ow a global orgaisatio, which practises public iterest evirometal law. It started whe as a youg lawyer a much youger lawyer I oticed that Roald Reaga had decided to stop eforcig evirometal laws. I was a lawyer at the Natural Resources Defese Coucil (NRDC) ad we decided to see if citizes could make a differece. We looked at the Clea Water Act. Before Reaga s admiistratio, the govermet brought about 350 prosecutios a year uder this law but uder him it fell to zero. We did systematic research ad brought 60 cases i six moths i federal court, wiig all of them, gettig court orders to clea up the pollutio, pealties that wet to other charities ad fees to brig more cases. We wet o to brig scores more cases, agai wiig them, ad embarrassig the govermet to get ito the eforcemet busiess agai. I Califoria we protected 350,000 acres of uspoilt coutry by threateig to sue o behalf of a little bird called a gatcatcher, which risked beig destroyed if developers built o swathes of coastal lad. The threat of litigatio started a egotiatio that created the model for multi-species protectio plas i the Uited States. Ad much else. However, whe I came to Europe almost 15 years ago I foud there was o pa-europea orgaisatio of lawyers dedicated to protectig the eviromet. A academic did a study comparig the umber of practisig lawyers iside evirometal groups i the US ad Europe. He couted aroud 500 i the US ad oly aroud two doze i Europe. It seemed obvious there was a iche to fill let us call it a eco-iche ad so I started up ClietEarth with the help of the McItosh Foudatio. * Professor Jack Garer was a leadig evirometal lawyer ad oe of the fouders of the UK Evirometal Law Associatio (UKELA). He gave oe of two itroductory addresses (with the late Adrew Lees) at the opeig coferece of UKELA i September He is remembered every year at UKELA s Garer Lecture. The 2015 lecture was held o 11 November 2015 ad kidly hosted at the offices of Freshfields Bruckhaus Deriger, Lodo. ** We are a orgaisatio that has grow from the corer of my bedroom to oe with a staff of 80 people workig across Europe, Africa ad soo Asia. We see ourselves as lawyers who work together with scietists ad policy experts to create practical solutios to key evirometal challeges. We believe i the equal right of all to live ad work i a healthy eviromet. We work to eforce laws whe govermets fail to do so ad we will use the law i a diliget way to eforce evirometal rights. Importatly, we aim to use the power of the law strategically, to achieve systemic chage. Before startig ClietEarth, I talked to may lawyers ad activists i Europe. I heard a umber of thigs repeatedly. There was a view that aggressive litigatio was ot eeded to protect the eviromet. There was a view that more cociliatory meas were better. Several UK lawyers told me to trust the commo law ad to wait for cases to percolate up, so that effective evirometal law would evetually arise. However, I believe these views are wrog. I believe the law ca be ad should be used i a strategic way to make big structural chages. I would like to make the case that legal strategies to prevet the dyig of the plaet are ot oly of value but are vital ad compellig because of our preset circumstaces. I would like to do this by sharig a perspective o what public iterest evirometal law does, how it is movig from the USA to the EU to Chia, ad poit out some further chages i our UK system that eed to be made to brig it up to global stadards ad allow public iterest evirometal law to flourish. Let me start by sayig this. I believe whe you pass a evirometal law ideed, whe you pass ay law ad you do ot eforce it, the i effect you authorise the coduct you origially sought to prohibit. You permit somethig by turig a blid eye to laws that ba it. I the EU there has bee a history of scoffig at laws. There is a moder Italia proverb which says: [o]e goes to Brussels to make the law ad oe comes home to fid a way aroud it. I Frace it was regarded as a badge of atioal pride to igore EU law. However, before we thik we i the UK are so much better, let us pause ad thik agai. Our Europea case This year ClietEarth took the UK Govermet to the Supreme Court over air pollutio laws. The govermet s

2 194 (2015) 27 ELM : HOW THE UK IS FALLING BEHIND ON ENVIRONMENTAL LAW : THORNTON view was very clear. It recogised there was a Europea law which said that air pollutio had to be cut to levels suitable for the protectio of huma health by 1 Jauary However, the argumet put to the Supreme Court was that domestic courts should ot sactio the UK Govermet for o-compliace. I respose, the UK Govermet said ad remember this was ot decades ago but this year, i 2015 that o actio by the court was ad I quote ecessary or appropriate. Clearly, the govermet wated to be left aloe to its ow plas ad devices. We kew of o details of the plaed govermet actio. We had o evidece it would be effective. We were simply told that actio to eforce the curret law was uecessary because our executive would take care of it i its ow sweet time, 2030 at the earliest. Forget for a momet the impact o huma health of air pollutio remaiig at dagerously high levels for decades after the deadlie. Forget for a momet this was evirometal law. This could be securities law, or cotract law, public or private law. Thik of the cosequeces of a govermet pickig ad choosig what laws it should comply with ad what laws ot to. Thik of the cosequeces of a govermet decidig whe it has to comply with the laws ad whe it does ot. I would suggest that is ot a democracy; either is it govermet uder the rule of law. Happily, however, we wo. O 29 April 2015 the UK Supreme Court ordered the govermet to take immediate actio o air pollutio. The Supreme Court Justices were uaimous i their decisio, sayig: The ew govermet, whatever its political complexio, should be left i o doubt as to the eed for immediate actio to address this issue. It was a historic rulig, which was the culmiatio of a five-year legal battle fought by ClietEarth for the right of the British people to breathe clea air. There is a good, o-evirometal reaso for supportig the result. It should be welcomed by ayoe who believes i the rule of law as opposed to the arbitrary exercise of power. If we are to protect ad embellish democracy, power must be govered by law. The corollary of that is that the courts are the fial arbiter of what the law says. Goig back i time ad across the pod to the US case of Marbury v Madiso, 1 decided i 1803, it was established that it was the Supreme Court, ot aother brach of govermet, which has the power ultimately to decide what the law is ad, i tur, to eforce it. For what was a relatively ew America Supreme Court, this decisio was pivotal. If the other braches accepted the judgmet, the iter-govermetal relatios would be clear goig forward. I the evet, the US Supreme Court did establish itself as the ultimate authority. The case is kow by every America lawyer as a foudatio stoe of the rule of law i the Uited States. Here i the UK, ClietEarth v Defra 2 has some of the quality of Marbury v Madiso. Here, too, the Supreme 1 5 US 137, 1 Crach 137, 2 L Ed 60 (1803). 2 ClietEarth v Secretary of State for the Eviromet, Food ad Rural Affairs [2015] UKSC 28 (29 April 2015). Court is a ew istitutio, which grew out of the House of Lords. It is still defiig its powers, especially i relatio to the Europea Commissio ad the Huma Rights Act. It is doig so i a legal system i which we all recall the dictum the Quee ca do o wrog. I our legal system courts do ot lightly write ijuctios agaist the govermet. However, i ClietEarth v Defra, the Supreme Court has asserted its authority to order the govermet to comply with its legal duty, ad created a kid of cotiuig madamus, fashioig a role for the courts to supervise compliace with the court s order. The secod good reaso to support this result is because we eed to protect the eviromet ad huma health. The healthy fuctioig of atural systems is a public good. So there were two solid strategic gais from this case ad the citize the citize i this case i the form of ClietEarth was vital for this process. This is importat. I wat to argue that i each strategic success makig democracy work ad protectig our ecosystems the role of the citizes was crucial. I the past, ad still today, govermets too ofte see idustry as cliets, whom the govermet must serve. This is ofte because of so-called regulatory capture, where powerful idustries, because of their huge fiacial stakes i a outcome, ca cotrol a regulator, whilst members of the public with oly a tiy fiacial stake caot or do ot. There are, for istace, a estimated 30,000 busiess lobbyists i Brussels, backed by billios of Euros, workig o behalf of their idustries ad orgaisatios. There are perhaps 700 evirometal lobbyists. There are obviously very few if ay ordiary citizes who ca use their spare time ad moey lobbyig for evirometal causes i Brussels. It would be a strage pastime. However, the real cliets of govermet should be the people they gover. Their cliets should be the citizes who have put them i power for the commo good. For that commo good to flourish, it requires citize participatio ad citize supervisio. Access to justice Let me explai what I mea by usig evirometal law. Evirometal law starts with sciece. It develops policy that captures what sciece says, before proceedig to legislatio, implemetatio ad eforcemet. All five stages are vital to protect the eviromet. At ClietEarth we work at all five of these stages. However, it is i eforcemet where the citize has a especially visible role ad it is i eforcemet where there has bee a gap i the UK ad the EU. Citizes must be able to eforce the law. Our air pollutio case was a example. We origially took this case to court i December 2011 to stop the govermet breakig air quality laws. However, the High Court ad later the Court of Appeal refused to take actio. We appealed to the Supreme Court to show that citizes could ad should act ad to show that whe there is a breach of EU law it caot be left solely to the Europea Commissio to deal with it.

3 HOW THE UK IS FALLING BEHIND ON ENVIRONMENTAL LAW : THORNTON : (2015) 27 ELM 195 However, sigificat barriers remai for citizes seekig to gai access to justice. Let me start with the barriers that exist i Brussels. Europe has show a complete disregard for democracy ad the rule of law by cosistetly failig to respect the right of people to brig its istitutios to court. The treaty allows it; the Aarhus Covetio, which the EU siged, requires it. ClietEarth has brought the Europea Commissio before the Aarhus Covetio Compliace Committee, the UN committee charged with upholdig the Aarhus Covetio. The poit is simple: whe EU istitutios violate EU evirometal laws, citizes may ot sue the EU for such violatios aywhere. They may ot sue it i Member State Courts because the EU will ot codesced to such jurisdictio. Nor ca citizes sue the EU i EU Courts because the EU Courts will ot ackowledge their stadig. The oly exceptio is that you ca sue for access to iformatio. I reply, the Europea Commissio has bee arguig that EU citizes have access to justice because people ca idirectly questio the validity of EU actios through their atioal courts, which ca pass the questios o to the EU Court. However, there is o guaratee that a atioal court will refer a questio. The EU simply refuses to esure access to justice i evirometal matters whe the EU violates its ow laws. Frustratigly, the Commissio adopted a proposal for a directive to guaratee this access i 2003 but the process stalled i the Europea Coucil because of a lack of political will. Uder pressure from atioal govermets the proposal was withdraw i We believe the Europea Uio is clearly ad flagratly breakig its treaty obligatios ad we are ow waitig for the Aarhus Compliace Committee to decide whether it agrees with us. We do ot expect the EU to welcome a decisio which puts it i the wrog. However, iroically, such a decisio would prove we live i a democratic Europe, which brigs me o to the barriers i the UK. I Britai we have treasured a rule sice the 13th cetury, which says that if a perso goes to court ad loses, that perso has to pay all of the costs of the defedat. That could mea, eve i a relatively simple case, costs ruig ito the hudreds of thousads of pouds, or more. Usurprisigly, that meat eve big evirometal groups could rarely brig cases. This rule had to be challeged ad ClietEarth did so, agai by way of the Aarhus Compliace Committee i Geeva. We wo ad, partly as a result of that wi, the rule was chaged. Adverse costs i Eglad ad Wales i evirometal cases are ow capped at first istace at 5000, where the claimat is a idividual. For other claimats, they are capped at 10,000. This was a small victory but oly a small oe. The govermet s liability to pay costs is capped at 35,000. Lest you thik this reasoable, cosider the followig: you brig a clea air case agaist the govermet, ad after five years you wi a Supreme Court ijuctio. Eve with much of the work doe by i-house lawyers o charity wages, the case costs you several hudred thousad pouds. It establishes that the govermet is violatig its madatory duty, with some 50,000 citizes a year dyig as a result. Losig, the govermet is protected from payig the actual costs. What is more, the 10,000 cost cap for a charity applies oly i the first istace. So if you go to the appeals court, or to the Supreme Court, you must request cost caps. You may get them or you may ot; the oly limits are at the discretio of the court. O top of all this, the govermet has failed to put ay caps o evirometal cases agaist compaies ad other private parties. Claimats brigig evirometal cases agaist such parties still face ulimited liability. So some small improvemets have bee made, but it is importat to uderstad that this costs system we have is still by far the most puitive of ay coutry i the EU. Ufortuately, it is also movig i the wrog directio. I revisios pushed through this year to the Crimial Justice ad Courts Act 2015, the UK Govermet itroduced deterrets to judicial review (JR). Lord Woolf has writte that the chages were uecessary ad ill-drafted. He has expressed his fear that the chages may impede JR i a way that damages the rule of law i our coutry. Uder the chages, ay claimat that is a corporate body ad that would iclude ClietEarth ad other evirometal orgaisatios pursuig JR ad seekig the cost protectio provided for i the Aarhus Covetio will have to disclose the ames, addresses ad iterest i the charity of all their members. If the charity has received or is likely to receive more tha 1500 from a idividual or fuder to cover the legal costs of a case, the those cotributors ad the size of their cotributio must also be declared to the court. The members ad fuders could the be called upo to pay the court costs should the charity lose its case judges are directed that they must cosider this optio. The charity leaders etwork ACEVO (the Associatio of Chief Executives of Volutary Orgaisatios) has said the overwhelmig effect of the reforms [will] be to itroduce a massive chillig effect o charities ability or willigess to seek judicial review ad that the reforms will severely damage the cofidece of idividuals ad orgaisatios i becomig members or doatig fuds i the first place. I agree. The govermet, havig succeeded i this mischief, is workig alog aother parallel track to icrease costs for claimats i evirometal cases. I a cosultatio ope util 10 December 2015, the govermet is cosiderig raisig the cost caps. Exposure will double for claimats. Agai, a ew cap must be requested at each level. If there are multiple claimats, each is exposed to the full amout. Meawhile, the govermet s liability goes dow. It will drop to 25,000. Eve worse is this: the govermet proposes lettig the defedat ask the court to remove all cost protectio, exposig the claimat, just like i the good old days, to ulimited cost liability. Why is the govermet workig so hard to prevet citizes from usig the courts? Our coutry has o writte costitutio. I our system, JR is the mai check o govermet abuse of power. But what is the govermet so afraid of? Why does the rule of law seem so threateig? Why must citizes be preveted from talkig to judges?

4 196 (2015) 27 ELM : HOW THE UK IS FALLING BEHIND ON ENVIRONMENTAL LAW : THORNTON I hope to have clearly made the poit that i the UK ad Europe access to justice is ot what it should be. The cost of access to justice Compare this to the situatio i the US. I the 1970s, the Uited States itroduced a series of evirometal laws that have served as the foudatio of moder evirometal regulatio. A umber of these laws, such as the Clea Air ad Clea Water Acts, have what is kow as a private attorey geeral provisio. Citizes ca go to court to eforce the law, stadig i the shoes of the attorey geeral, oce they have met certai criteria. The otio is that eforcemet of the law is a public good, ad eforcig evirometal laws is i the public iterest. Here it is importat to uderstad what a public iterest case is: a public iterest case is oe i which the iterest the claimat asserts is ot the claimat s persoal iterest but, rather, that of the public. The successful claimat i a public iterest case does ot beefit from her victory ay more tha aother member of the public. The cleaer air or water that results from a victory is broadly shared. To ecourage such public-spirited litigatio, these laws have a fee structure which assists claimats to brig cases to court. If a citize brigs a case ad wis, she recovers all her costs ad fees. If she loses, she pays o costs or fees to the defedat. There are over 200 such federal laws i areas icludig eviromet, civil rights ad cosumer protectio. These laws allow true oe-way cost shiftig. This approach to fee recovery has led to greater citize ivolvemet i eforcig the law, whe the govermet fails to eforce it agaist compaies, or where the govermet fails i its ow duties uder the law. True oe-way cost shiftig of this kid had a momet i the su i the UK. I 2009, Lord Justice Jackso published his Prelimiary Review of Civil Litigatio Costs i the UK. He said that, ad I use his words, radical reform would be eeded if the UK were to meet its Aarhus obligatios. Oe of the optios he examied was true oe-way cost shiftig. His 23-page leared aalysis of the virtues of the US system made my heart sig. I still remember thikig that radical reform might happe here upo readig Lord Justice Jackso s Prelimiary Review. However, by 2010, whe the Fial Review was published, the suy spell was over. The America rule of oe-way cost shiftig as a appropriate if radical reform had bee dropped. Access to justice i Chia Lest I be accused of typical America arrogace ad a lack of uderstadig of the quieter ad more uaced customs of my UK brethre, let us also compare the UK situatio with that i Chia. There has bee a sea chage i the attitude to evirometal laws ad eforcemet i Beijig. Whilst Chia has had evirometal law for decades, there has bee weak ad ieffective eforcemet. That is chagig for three reasos. First, the problems are maifest the equivalet of the smog i Lodo i the 1950s. As recetly as September 2015 a group called Berkeley Earth 3 released a study based o data collected by a etwork of sesors across Chia, which said that more tha 80 per cet of Chiese people are regularly exposed to pollutio that far exceeds levels deemed safe by the US Evirometal Protectio Agecy. The report said that air pollutio i Chia kills about 4000 people ot every year or every moth but every day. The secod reaso is that the pollutio is so severe that it will affect the ecoomic sustaiability of the coutry. A recet assessmet carried out by the Chiese Academy of Sciece took accout ot oly of air ad water pollutio, but also of resource cosumptio ad ecological degradatio. The estimated total resource ad evirometal costs amouted to 13.5 per cet of GDP i The figure is cosiderably higher tha that of the Uited States, the Uited Kigdom, Germay, Japa ad other developed ecoomies ad o a par with coutries such as Mexico, Ghaa ad Pakista. The third reaso is that people are takig to the streets o the issue. There are a estimated ,000 demostratios a year i Chia about evirometal problems. I April 2015 thousads of people i Chia s souther Guagdog provice protested agaist the expasio of a coal-fired power plat. The Commuist Party kows it must tackle the issue. It must deliver a public good. The harmoy of the coutry, to use the Chiese phrase, depeds o cleaig up the eviromet. So the Commuist Part is tighteig laws ad improvig eforcemet. The Chiese Govermet has made real time emissios data from pollutig factories available olie to the public. 4 The desire to tackle the problem goes to the top of the Chiese Commuist Party. Premier Li Keqiag has pledged to wage a war o pollutio. Aroud Beijig, where air pollutio is famously bad, all major coal-fired power statios will be closed dow by the ed of ext year. 5 However, most importatly, Chiese citizes are beig elisted ito the war o pollutio. A law came ito effect i Jauary of this year, the Evirometal Protectio Law 2015, which allows o-govermetal orgaisatios to brig cases agaist pollutig compaies for the first time. Premier Li Keqiag described Chia s ew law as a secret weapo i the war agaist pollutio. Aroud 500 Chiese evirometal groups have the power to act, ad more groups gai stadig each year. Several have quickly take actio we kow of 36 eforcemet actios that have already bee filed, with more o the way. The Chiese authorities have take the situatio so seriously that they ivited a America litigator livig i Lodo me, together with several other Europea experts to advise the Chiese Supreme People s Court o how to make the ew law allowig citize eforcemet 3 See airpocalypse_embarkig_o_a_ew_air_pollutio_iitiative_that_just_ might_work.html. 5

5 HOW THE UK IS FALLING BEHIND ON ENVIRONMENTAL LAW : THORNTON : (2015) 27 ELM 197 work. They wat us to help draft better laws ad regulatios. They wat us to trai the judges who will be decidig these cases. They recogise the eed to build the capacity of the NGOs to brig cases agaist pollutig compaies. This is a real game chager where citizes ca sue compaies i Chiese courts. It is a amazig chage for Chia ad we have much to lear from the ew Chiese attitude. The Chiese Govermet is triallig seve versios of a emissios tradig scheme i seve provices, with the itetio of craftig the best system for atioal use. The Chiese Govermet has data opeess ad evirometal paels o all courts from the Supreme Court o dow. I should also metio three other ways i which the ew Chiese evirometal legal regime has ow moved ahead of ours here i the UK. First, Chiese NGOs are ow able to sue polluters directly. This icludes pollutig compaies owed by the govermet. I the UK we caot challege corporate polluters uless they break laws that lead to crimial offeces or private law claims. Secodly, returig to costs i evirometal cases, the Chiese are a practical people. The Chiese Govermet ow wats to ecourage citizes to brig eforcemet cases. That brief ray of sushie brought to us by Lord Justice Jackso s Prelimiary Report o the UK cost regime, recogisig the value of the US system, has blazed i Chia. Chiese courts have adopted the America rule o true oe-way cost shiftig. If a Chiese NGO wis its case agaist a polluter, it gets all its costs ad fees, ad if it loses, it pays the other side othig. The first of these 36 citize cases I metioed reached judgmet several weeks ago. Not oly did the court impose sigificat fies o the defedat; it also awarded the claimats all their costs ad fees. I hope we will be able to help empower Chiese NGOs to use their Evirometal Protectio Law well. Thirdly, the Chiese courts ow have very broad remedial powers to ejoi pollutio, to shut facilities, to write ad implemet detailed evirometal remediatio plas, ad so o. They are askig for advice o usig these powers wisely. They wat to uderstad the best global models for court-ordered compliace ad remediatio. I pla to assist them. Where there is such a strog desire to use the courts powers i the best way for protectig the eviromet ad huma health, there is much to hope for. So let us pause here ad reflect o how the situatio i Britai compares with those i the US ad Chia. We have a tedecy as UK lawyers to look to our ow atioal traditios ad see how far we have come. It is true: we have made progress i Britai i evirometal law. However, it is also importat to look to the best examples globally ad see how we compare with the rest of the world. This is my pricipal cocer. Whilst we have moved slowly, others like the US have moved far ahead of us. Also, to be frak, the Chiese have overtake us i terms of makig it easier for citizes to use the courts to redress evirometal harms by pollutig compaies. We led the way i establishig the rights of citizes through the Maga Carta. We were a example to the world i the abolitio of slavery ad extedig suffrage to wome. The British Isles were the first to develop commo law, icludig the system of bidig precedet, parliametary sovereigty, habeas corpus, the first trial of a moarch. As humbly as a ex-america litigator ca, who has shifted perspective by becomig a solicitor i Eglad ad Wales, I would suggest that the British people would ot wat us playig catch-up whe it comes to protectig the plaet: they would wat us to lead. Remedies So what do we eed to do to meet the stadards of our Chiese colleagues? First, there must be further reform of costs. True oe-way cost shiftig dropped betwee the first ad secod drafts of Lord Justice Jackso s review of civil costs. Secodly, we must be able to sue pollutig compaies, similar to the right that already exists i the USA, Chia ad our EU allies. I persoally have see how beeficial this is, particularly if a govermet tilts too far away from its resposibilities, as Roald Reaga did. The oe actio the Chiese have ot yet itroduced is a JR where the govermet has a evirometal duty. However, it is o their radar. I met ot log ago with Chiese academics, judges ad officials. They are ow discussig the eed for such remedies. O our side i the UK, as I poited our earlier, this most importat remedy for govermet abuse of power is uder icreasig threat. As we speak of remedies, let us cosider how we could use ijuctios differetly. Etertai a hypothetical case for a momet. I our UK Supreme Court air case the Court took the importat steps, ad perhaps historically importat steps, as I oted earlier, of ejoiig the govermet to comply with the law, ad extedig a kid of cotiuig madamus, to supervise the lawfuless of the govermet s compliace. What happes, however, if the govermet does ot take the Supreme Court s order seriously? The govermet told the Court that, although the law required compliace with NO 2 limitatios by 2010, it had o itetio of complyig with it ay time soo. The Court, referrig to the statutory laguage, ordered the govermet to write a pla that will brig it ito compliace as soo as possible. The govermet s draft pla, writte uder the ijuctio, still says it will ot comply before 2025, which is exactly what it said to the Supreme Court before the ijuctio was grated. This raises the questio of whether the govermet accepts the power of the Court to ejoi it to comply with what are, after all, madatory duties. Let us reaso together. The duty is madatory. The Court has ejoied compliace. The govermet itself publishes statistics showig that the period of o-compliace betwee 2010 ad 2025 meas that tes of thousads of people i the UK will die of air pollutio because they are forced to breathe dirty air. What ca a court do whe a govermet is recalcitrat? Oe obvious aswer is to hold the govermet i cotempt. However, where the recalcitrace is hardeed ad systematic, courts i other jurisdictios have bee creative about craftig effective remedies.

6 198 (2015) 27 ELM : HOW THE UK IS FALLING BEHIND ON ENVIRONMENTAL LAW : THORNTON I Idia, for example, the Supreme Court has become famous for its specific ad detailed evirometal ijuctios. I the Uited States, the so-called structural ijuctio has bee developed. It came ito beig i the civil rights area, where state ad local govermets had etreched themselves i a positio of o-compliace, ad were willig to igore orders of the court. What the America courts did was to write highly detailed ijuctios, requirig precise actios to bus school childre ad so o. I some cases, US courts assumed the admiistratio of prisos util they met appropriate stadards. I Pakista recetly, a very iterestig ijuctio was issued by the High Court i Lahore. The atioal law required formatio of a climate chage commissio made up of represetatives of various miistries, with the obligatio of makig policy recommedatios o climate chage. A claimat alleged that the govermet had failed i its duty to create such a commissio. The court i Lahore called i the miistries, which ideed had doe othig, ad iteded to do othig. The court the got the job doe. It wrote a ijuctio which created the commissio, appoited its members ad set out the timelie for their recommedatios to be published. I would like to draw a geeral rule about the specificity of ijuctios agaist govermets. It rus this way: the specificity of a ijuctio is directly proportioal to the recalcitrace of the govermet actor. That is to say that the eed for the court to ejoi specific remedial steps icreases to the same degree as the govermet s refusal to fulfil its madatory duty. Lookig at it this way, the govermet s bad faith authorises the court s remedy. However, someoe has to protect the public iterest, ad whe the govermet abdicates a madatory duty, oly the court ca brig about compliace with the law. What happes if the Govermet of the UK isists, while its citizes are dyig, that 2025 is as soo as possible for it to clea up the air? We kow the claim would be factually false. Paris showed i October 2015 that a madated reductio i traffic dramatically reduces air pollutio literally overight. Were the govermet to commit itself to a hard-osed cofrotatio with the Court, takig a positio that it has the right to let its ow citizes die util it is coveiet to comply with the law a propositio may govermets aroud the world would agree with, but i whose jurisdictio may people might ot wat to raise their childre would it be appropriate for the Court to lear from the experiece of other courts facig hostile cetral authorities? Could our courts write a more specific ijuctio requirig actio to clea up the air? For me the aswer is a resoudig yes. So that courts ca have the right pleadigs before them, let me ask for help from all the lawyers here today. We eed to be more creative, more focused ad more demadig i the remedies we seek from our courts. Our evirometal problems will get worse before they get better. Let us ot fall ito our cultural default mode of beig afraid to ask the courts for ovel remedies. We are, after all, dealig with ovel problems. If our itetio is to use the law to improve thigs, we eed to be strategic. So, for example, i order to address climate chage, biodiversity loss, air quality ad so o, usig existig law will require us to assist the courts i movig further more quickly. By way of my ow example, I picked air quality as a area that would be impossible to lose as a case if it is argued well ad the EU evirometal law regime worked at all. It appears to be workig. It was ot difficult. It is just like plaig sixty chess moves ahead alog whatever dimesio of the law you are usig to serve the commo good. It is a matter of beig thoughtful: what do the courts eed from lawyers to be able to deliver the right result? How may cases betwee here ad there eed to be evisaged, brought ad wo so that the ultimate decisio i a domai is ieluctable? Armed with the aswers to those questios, the the cases ca be desiged ad wo, thereby buildig a series of judgmets ad a body of ew case law eablig the beefits to be implemeted i the real world. The way forward I recetly spet a ispirig two days i a meetig i Lodo with Supreme Court judges from aroud the world, icludig from our ow local jurisdictio. It was clear that judges are eager to do justice i evirometal cases. Let us promise to brig them the right facts ad demads for them to be able to grat us ew ad powerful remedies. The courts are ope for busiess. They will respod if asked. They will go further if the case demads it of them. If we do ot ask we will ot receive ad the losers will be people ad the atural world. Takig a broad assessmet of the legal climate, I have come to the belief that piecemeal improvemets to eviromet law are ot eough. What I would like to see is the evolutio of a ew geeratio of evirometal laws, which ca comprehesively protect our plaet ad all the plats ad aimals livig upo it. That would iclude keepig climate chage withi smart limits ad reversig biodiversity loss. For, cosider this: if all the laws to protect the eviromet we ow have at iteratioal, atioal ad local level were eforced ad that is a big if we would still ot stop global warmig, biodiversity loss or the rest of it. I call this ext stage i the evolutio of evirometal law, which we eed more tha ever, Eviromet Law 2.0. It will mea workig o the legislatio as well as the litigatio to get thigs right. It is a log-term goal but oe which is defiitely withi our sights. While we are buildig this ew system of law, I ad my colleagues at ClietEarth will keep eforcig the laws we have ad keep workig with legislators to get the ew laws right, because if we fail to eforce what we ow have, ew laws will be meaigless. Uless we eforce the laws we have, govermets will stad up i Supreme Courts ad say they ca pick ad choose. I remai a huge optimist. We have made vast strides, positive strides. Our success i the air quality case put a requiremet o the govermet to act. It created a space for our policy-makers to come up with clea, sustaiable trasport solutios which protect our health. We hope to

7 HOW THE UK IS FALLING BEHIND ON ENVIRONMENTAL LAW : THORNTON : (2015) 27 ELM 199 match our success i tacklig air pollutio i the UK courts i courts across Europe. We have successfully challeged the right of eergy compaies to build highly-pollutig coal power statios i Polad. We are reducig deforestatio i Africa by helpig coutries to develop their forest laws ad esurig that legally-harvested timber has a market i Europe. Coclusio Fially, speakig as a former aggressive America litigator who came from New York ad eded up i Hackey as a Eglish activist lawyer workig o behalf of the plaet, I am goig to leave you with these thoughts: It is time to realise that gettig citizes eforcig evirometal law is a hugely positive act. It is a positive act to remove the barriers to goig to court. It is a positive act to see who i the world is i the lead ad the workig to match the best of our iteratioal colleagues. It is a positive act to grow the rule of law because it protects the eviromet ad protects the plaet ad protects all those people who live upo it. I that spirit of positivity, I thak you for your patiece i listeig to me.