by Harriet Williams

“The power of the lawyer is in the uncertainty of the law.” So said legal reformer and philosopher Jeremy Bentham two centuries ago.

The legions of lawyers employed by polluting industries today attest to the enduring value of this uncertainty. These lawyers are not paid to gold-plate the implementation of environmental policy. Rather, they seek loopholes and derogations for their clients, which frequently weaken the spirit, if not the letter, of the law – a classic example being the implementation ‘drag’ currently besetting the EU’s flagship chemicals legislation, REACH. 

The use of legal tools by the UK environmental movement has grown in recent years.  A series of high-profile court cases have seen victory for campaign groups opposing the expansion of Heathrow airport and new nuclear power stations, defending the right to peaceful protest, and seeking disclosure of contracts between local authorities and waste incineration companies. Meanwhile, environmentally-minded groups and individuals plug away at the body politic using freedom of information laws.

For all the publicity that court cases generate, legal activism remains woefully underdeveloped as a strategy within European environmentalism. John Bonine, a professor of law at the University of Oregon and founder of the Environmental Law Alliance Worldwide, estimates there were only 25 environmental lawyers funded to litigate in the public interest across Europe as of 2007.

Overall capacity is enhanced by solicitors and barristers offering pro bono support to non-profit groups via organisations such as the UK Environmental Law Foundation. The ELF has received more than 11,000 enquiries since it started in 1992, referring over 2,400 cases for free help. The Rights and Justice Centre at Friends of the Earth and EarthRights Solicitors also offer free legal advice and take on selected cases.

However, legal advocacy is a long way from realising its full potential in Europe. The situation contrasts the US. Here, legal specialists such as the Natural Resources Defense Council and the Center for Biological Diversity are part of the mainstream, and Bonine estimates there are around 500 lawyers in regular, funded employment for advancing environmental concerns.
 
Bonine’s figures break down to roughly one lawyer per 614,000 population in the US, but only one per 20 million people in the EU-27. Why so many more public interest lawyers in the US? The US’ famously litigious culture plays a role.

Another answer harks back to the civil rights movement and the preferences of philanthropic funders. After civil rights lawyers won the pivotal Supreme Court ruling in Brown v. Board of Education in 1954, such litigation spread like wildfire.  By the late 1950s and mid-1960s, the first private environmental lawsuits were filed as well.  By the early 1970s philanthropies in the US were supporting the creation of non-profit environmental law firms.

US environmental grantmakers today are far more likely to fund lawsuits than their European counterparts. Bonine finds that US foundations are an important source of funding for legal activism in Latin America and Eastern Europe as well. In Western Europe, he claims “it is hard to find any philanthropic foundations providing any funding at all for access to justice”.

The same imbalance applies to lawyers who lobby for their clients. A head count of corporate lawyers working environmental regulation in Washington and Brussels suggests that grantmakers may wish to up their game. In the US, there are at least 26 lawyers acting for corporate interests to each one acting for the public interest. In Europe, the ratio is much higher.

“Many corporate lobbyists in Brussels are highly paid commercial lawyers,” says James Thornton, founder and CEO of London-based ClientEarth. “They go into the institutions with very precise demands. Green groups don’t have that same level of representation – it’s a very uneven playing field.”

ClientEarth itself was founded in 2007 by veteran US donors Winsome and Michael McIntosh, who saw Europe’s lack of legal activism as a significant weakness. The organisation has grown to a staff of 25 lawyers, doubling the number of practicing public interest lawyers in the entire EU and attracting funders such as the Esmee Fairbairn Foundation and the Sigrid Rausing Trust along the way. ClientEarth has also been well-received by UK and EU governments and their agencies, regularly supplying advice on the specific legal wording of environmental directives and other legislation.

As a funding strategy, Thornton says that law can offer philanthropists high rates of return. He cites ClientEarth’s work on EU illegal timber and fisheries policy as examples where strategic use of the law can create opportunities for structural change. “For the investment of the salaries of a couple of people for a couple of years, you get potential for real systemic change of incalculable benefit.”

As another famous legal quote has it, “Justice is open to everyone, in the same way as the Ritz Hotel.” Green funders may wish to think about improving access to justice as a strategy for environmental protection, and making smarter use of the legal system overall.

With thanks to Prof John Bonine for his input to this article.

Harriet Williams helps coordinate the Environmental Funders Network, the views expressed here do not necessarily represent those of the of the Network