James Thornton on Using Lawsuits to Save the Planet

AHIS YOUNG man i was wondering how i could help save lives on earth. I remember seeing the start of the first Earth Day celebration in 1970. Walking the streets seemed moving, not strategic. Politics seemed like a waste of time. The most powerful tool I could identify was the law. Only the law level the playing field between the individual and the most important forces in society, namely countries and companies. If you master the skills of the law and deploy them strategically, you can rewrite the rules of the game in legislatures and then apply the new rules in the courts.

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And it worked. Today, citizens around the world are using the legal system to hold governments and businesses to account.

Start with the countries. Dutch courts accepted citizens’ arguments that their government’s climate plan was not good enough and ordered tighter emissions cuts. In 2019, the country’s Supreme Court upheld the ruling, in a case brought by Urgenda, an environmental charity. Other deals were won by citizens in France, Germany and Ireland. ClientEarth, the green legal activism organization that I lead, supports a group of citizens who are suing Poland in a case on similar grounds that the state’s climate plan is too weak.

US courts, however, have so far objected. In 2015, a group of young people sued government officials, arguing that their failure to tackle climate change deprived complainants of their rights to life, liberty and property, among other things. In the said case Julienne, the court recognized the dangers of climate change, such as flooding, and admitted that the young plaintiffs had documented that they would be harmed by climate change. But then he didn’t act. The court said there was no recourse in their power and left it to the politicians.

On the business side, coal has been the subject of successful litigation. Utilities that burn coal are like dinosaurs blocking the capitalist road new businesses want to take with renewable energy. Governments and businesses all over the world have planned to build so many coal-fired power plants over the next few years that achieving the goals of the Paris Agreement would have been a distant dream. Some governments, such as those in Poland and China, did not seem interested in challenging incumbent energy operators, and start-ups weren’t created to do so.

Unless citizens resorted to litigation to block factories, a higher carbon future would have been locked in. In America, the work of the Sierra Club and Earthjustice, and in Europe, the work of ClientEarth and its many partners, has blocked a new generation of coal-fired power plants in court for the past 15 years. In Asia, since last year, some 600 new coal-fired power plants were still planned.

Yet countries are starting to change their minds. In a significant change that ClientEarth and others have worked to support, Chinese leader Xi Jinping told the United Nations General Assembly in September that China will not build or finance new coal-fired power plants in the countries. which are part of its “Belt and Road” initiative.

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However, progress has been uneven. Financing in particular remains a major concern as capital continues to flow into fossil fuels. Over the past five years, ClientEarth has built a unique team of business and finance lawyers to track and support the money.

In Poland, when the government and Enea, a state-owned energy company, decided to build what may have been one of the last new coal-fired power plants in Europe, ClientEarth filed a lawsuit. We bought shares and then ordered an independent financial analysis showing the factory was a bad investment. When the company announced it would go ahead, we responded with legal action against the directors. We argued that they were making a bad investment, violating their fundamental duty of care to shareholders. We won the case. Enea’s share price jumped 3% following the announcement.

Despite hosting the UN’s COP26 on the climate, Great Britain is considering the development of the Cambo oil field in the North Sea. Seventeen banks are preparing to finance or advise the project, which is being led by Shell and Siccar Point Energy, an investment company. ClientEarth recently wrote to the banks, pointing out that such funding could violate directors’ fiduciary duties and expose banks to various legal risks, including shareholder litigation.

Unfortunately, when the private sector does not invest money in carbon-coated businesses, the public sector does. In many places, government subsidies still support fossil fuels. This acts as a brake on the transition to green energy which is necessary to reduce emissions. Although the field is less contentious, it offers potentially long levers. Think of the European Union. He responded to the risk of recession due to covid-19 lockdowns with a quantitative easing program of around € 2,000,000 ($ 2.3,000,000). Part of the funds would go to the purchase of corporate bonds on the market, with purchases being delegated to six banks in the Member States.

Read more:
• Gernot Wagner on how individual actions can tackle climate change
• Tariq Fancy on the failure of green investment and the need for state action

The Grantham Research Institute at the London School of Economics analyzed these bond purchases and found that over 60% came from the electricity, gas and carbon-intensive manufacturing sectors, making it a huge grant. ClientEarth sued Belgium’s central bank, arguing that such purchases violate EU treaties and the requirement for consistency between the European Central Bank’s monetary policy and EU climate policy, such as the Green Deal and the climate law. The case was heard on November 15 and a decision could be made as early as the end of 2021.

Combinations force green goals to be met when there are victories in the courtroom. But they also serve as a warning to other companies through the financial penalties that the courts can impose. After all, if fossil fuel companies have contributed to climate change, often knowingly, shouldn’t they be held liable for the pecuniary damage? The parallel is with the cases against the cigarette companies in America, where in 1998, the tobacco companies set up for more than 200 billion dollars.

There are a number of climate damage cases in US courts. San Francisco and Oakland, Calif., For example, have sued a group of oil majors. Cities say they will have to spend billions to adapt to climate change, and oil companies should contribute a big part. This is a familiar argument in tort law, when more than one defendant contributes to the injury.

Court change

So far, these cases have not been settled or have not resulted in a judgment with damages. In time, they will be able to. Judges, like everyone else, see fires and floods of climatic origin. There may come a time when a judge will say that ExxonMobil is responsible for some of the damage caused to Oakland. The judge will have to overcome his fear that such a judgment would hold ExxonMobil liable for the damage caused to all the coastal cities of the world, even if it could well be a just outcome. Its deep pockets would empty and planet Earth would be better off. It would send a message to the big oil companies that they need to get clean and go green.

Behind legal activity hides a philosophy. This brings me back to my ambition as a young man. Society accepts laws to bind its conduct, so if you can deploy the law, you can demand countries and companies to do better. You can make them act like they have deeper ethics and wiser morals. This power of law is now more important than ever. We have a decade to fundamentally change our conduct as a society. Governments are moving too slowly, as the COP26 demonstrated. Businesses will never go fast enough on purpose. Citizens who use the law can demand faster, better and more responsible action from countries and businesses. The citizens “take justice into their own hands”, so to speak, is the most powerful force to save civilization that I know of.

Of course, the use of the law by citizens alone cannot solve the climate crisis. Governments, businesses, shareholders, voters and activists must all join us. Laws to implement emission reductions in accordance with the Paris Agreement are needed in every country, as are laws to impose reductions on businesses.

And once the laws are in place, they are not directly applicable. Governments ignore them. Companies are flouting them. Citizen litigation is therefore necessary. It can lead the courts to order reductions. The law can do wonders, but we have to go further, faster.â– 

James Thornton is the founder and CEO of ClientEarth, which uses litigation to force governments and businesses to reduce carbon emissions and uphold environmental values.

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