Saving the planet, one court case at a time
Meet lawyer James Thornton, the soaring force in environmental activism. His foe: recalcitrant governments and big industrial polluters. His battleground: the courtroom. His client: the planet. By Jane Wheatley.
James Thornton and I meet on a warm summer’s evening in what has been a satisfying month for the American lawyer. After a lawsuit lasting almost seven years that went all the way to the UK’s Supreme Court, he won an injunction forcing Theresa May’s government to publish a clean-air plan for those British cities in which atmospheric pollution exceeds legal levels.
Not many people have heard of Thornton but the quietly spoken 63-year-old, who is also a poet and a Zen priest, is behind many such notable victories in the fight to save the world’s embattled ecosystems.
In April this year, the European Union told Poland to stop logging trees in the primeval Bialowieza Forest, but only after years of careful groundwork laid by Thornton’s law firm, ClientEarth, from its Warsaw office. And when UK chef Hugh FearnleyWhittingstall’s Fish Fight campaign got the European Union to ban the dumping of fish by trawlers that had exceeded their quota, Thornton was there in the background, neatly skewering the legal arguments so the EU couldn’t wriggle off the hook.
He is like the Scarlet Pimpernel, masterminding daring rescues for his clients, yet when you look, he isn’t there.
We’re drinking tea by an open window overlooking the river in Bristol, where Thornton is due to launch his book, ClientEarth, coauthored with his husband, Martin Goodman, an English writer. In the US, Thornton had made a name for himself as a staunch and wily defender of wild places.
As a young attorney in 1980, he went to work for the New Yorkbased Natural Resources Defense Council (NRDC), a group of environmental lawyers tasked with bringing citizen enforcement cases against big industrial polluters. The project was funded with a loan from the late philanthropist Michael McIntosh, who would eventually back Thornton to set up ClientEarth.
Upstream from Chesapeake, the Pagan River had been closed to shellfish harvesting due to high levels of faecal bacteria. The culprit was Gwaltney, a pigprocessing plant discharging vast amounts of excrement containing high doses of antibiotics, vaccines and insecticides. The company had been violating its permits for discharges and, in 1984, with the Chesapeake Bay Foundation, Thornton filed a suit in the US District Court. After the case had gone to the US Supreme Court, a penalty of more than US$1 million was awarded against Gwaltney.
At the same time, Thornton was pursuing a claim against Bethlehem Steel for violations of its permit to dump toxic waste into the waters of Chesapeake Bay. On the eve of the trial, Bethlehem’s lawyers settled for a payment in lieu of penalty to Chesapeake environmental charities of US$1m, and US$500,000 to cover the plaintiffs’ costs. Other industrial polluters began clean-ups to avoid similar suits.
‘‘Corporations speak in the grammar of money,’’ writes Thornton in his book. ‘‘If you want them to take [environmental] laws seriously, then you make them pay a great deal of money for violating them. Then, suddenly, they’ll wake up to it.
‘‘If unchecked, governments will always drift towards what companies want, because companies are fantastically more powerful than citizens.’’
Climate change is so real that people in charge of other people’s money need to understand that it is now a financial risk.
Thornton was born in 1954, the third son of Catherine and Peter Thornton. His father was a law professor and vigorous debate was the currency at the family dinner table – James and his three brothers all went on to become lawyers.
A keen birdwatcher and hiker, James had considered becoming a biologist but realised, ‘‘I would study what I loved and watch it disappear; whereas if I became a lawyer, I could do everything possible to try and save it.’’
He took top honours in philosophy at Yale, studied law and worked briefly for a corporate law firm on Wall Street before joining the Natural Resources Defense Council (NRDC).
After working his way through 60 cases of water pollution, Thornton opened an NRDC office in Los Angeles in 1994 and turned his attention to the southern Californian coastal area – its forests, mountain chaparral and sage scrub threatened by encroaching development. How to conserve at least some of this precious resource?
Thornton, who had earlier taken a year off work to study meditation with a Zen teacher, then walked through one of his favourite places, Sycamore Canyon, took it all in, went home and meditated. He called an ornithologist: was there a species of bird that lived only in that area – ideally one with some charisma?
The California gnatcatcher is a small, grey songbird; it mates for life and never migrates. Thornton had his totemic creature.
Establishing that the bird was a threatened species, he offered developers a deal: there would be limited development in gnatcatcher territory in exchange for land set aside for conservation.
‘‘I’m a pragmatist,’’ Thornton would explain later. ‘‘You have to go for what is realistically achievable.’’ By 2001, the year he left the US for England, 200,000 hectares of Californian coastal scrub had conservation status.
Thornton was excited about working in Europe but then dismayed to discover there were no public-interest law groups such as NRDC working for the environment. On the whole, environmental groups concentrated on protest and campaigning rather than legal remedy.
Thornton thought he would have to go into private practice until an old ally, the environmental philanthropist Michael McIntosh and his wife Winsome, breezed into town and took him and Goodman to dinner at a swanky Mayfair restaurant. ‘‘ ‘Write us a report: we’ll fund it,’ they said. ‘Investigate the true state of public-interest environmental law in Europe and let us know what you find.’ ’’ The seeds of ClientEarth were sown.
Thornton set up shop in a rented one-bedroom flat in West Hampstead and got to work. He soon discovered a big reason why environmental NGOs in the UK were reluctant to challenge corporations and government in court: if they lost, they would be liable for the other side’s costs, which could run to millions.
Four years later, he would take the case to an international tribunal and get a cap of £5000 on costs awarded against individuals and £10,000 against NGOs bringing lawsuits in the UK.
ClientEarth opened its doors in 2007 and, one year later, had a staff of five in an office in London’s hip Hoxton, and one employee in Brussels. Sculptor Emily Young was an early supporter; she introduced musician and producer Brian Eno to the group and he joined the board. Every member of the band Coldplay became a patron.
David Hart chairs the Environmental Law Foundation in the UK. As a specialist in marine law, Hart got a taste of the Thornton approach when ClientEarth hired him to look at the problem of fishing trawlers damaging an underwater reef.
‘‘We wrote to the [UK] government for two years,’’ he says, ‘‘fiercer and fiercer letters threatening to take them to court. They eventually capitulated and reefs that are vulnerable to certain types of fishing boats are now protected under law.’’ So in that case his ‘‘client’’ was a reef? ‘‘Exactly,’’ says Hart.
ClientEarth has become something of a thorn in the side of the EU, which doesn’t welcome citizens bringing grievances through its plate-glass doors.
‘‘There are thousands of corporate lobbyists in Brussels,’’ says Thornton, ‘‘but only a handful of people on the side of the green movement.’’
But what of President Trump’s threat to take the US out of the accord? Not such a bad thing, says Thornton. ‘‘If America had kept a seat at the table, they would have kept trying to water down resolutions, making life very difficult for the other 194 signatories. Now China becomes the world leader on climate change and US economic interests will be hurt.’’
The Paris accord has been criticised as too little, too late and some analysts have calculated the chance that climate change will cause a ‘‘rolling collapse’’ of civilisation at 50/50.
Thornton, though, is an optimist. ‘‘Even if they’re right, that’s a 50 per cent chance of survival,’’ he says, ‘‘and we are doing something about it.’’ He is inspired by a marine biologist who noted the loss of 90 per cent of the world’s sharks: ‘‘She said, ‘Great news! Ten per cent are still there and if we stop murdering them, numbers will come back.’ ’’ – Sydney Morning Herald