Granta’s online editor Luke Neima in discussion with James Thornton and Martin Goodman. They touch on James and Martin’s book Client Earth, which examines the work of James’s environmental law firm ClientEarth, the potential environmental pratfalls of Brexit and the Trump presidency, and how judicial action may be the most effective weapon in the fight against climate change.
To start us off, could you tell me about how you two met?
James was on his way to spend a year in Tibet with a Buddhist lama, and I was on my way back from teaching in Thailand. I was English, he was American. We both diverted to seek out an Indian holy woman who lived in a German village. James was sat at his own table in the German B & B, peering at the rest of us from over a Buddhist tome. I called to him to join us. Soon he was regaling us with tales in the voices of Samuel Johnson and Thomas Aquinas. We all laughed – it was perfect storytelling. I told him he was a writer.
James cancelled Tibet, and this German village became the place of an intense spiritual retreat for him. I lived in Glasgow and returned every month or so – James seemed more luminous every time. My sexuality was confused. I told James we had to have a deal: I would give him playfulness, and he would give me honesty. We’re still working at that, but we’re getting there.
I know that originally you two lived in different countries. Can you tell me a little bit about the challenges that came with the beginning of your relationship?
I quit my job, cashed in my pension, reduced my belongings to a carload that included a futon, and we drove down to a small wrecked house we were given the use of in the French Pyrenees. That became my European refuge for the spells between my six-month US visas. Otherwise, I settled into James’s life in Santa Fe, where he had taken a break from law to run an organization which brought meditation skills to environmental activists. Elsewhere in the world I could get teaching jobs, but in the US my only option was to morph into a nonfiction writer, selling projects proposal by proposal. I loved the openness of the US and the landscapes of New Mexico.
James had to cope with years of my ‘I’m afraid that’s not what we do’, till I learned to free myself up in all areas – from how to serve wine to sex. Some of our story threads through those nonfiction books of mine, which are ones of spiritual quest around the world. Our frequent separations were bruising, but we kept developing while apart and had lots to catch up on when together. A couple of my book contracts helped us financially, but James took on the need to support us both. He’s a serial entrepreneur in the not-for-profit sector, and that ‘not-for-profit’ element is real. He worked furiously hard to conjure hope out of nothing.
Why did you decide to settle in England?
The US did not welcome gay partners. I made up a fresh story every time I passed through US immigration, and was routinely held in secondary detention, my bags searched and notebooks read. We were looking to regularize my stay and get a work visa on the grounds of exceptional merit when my mother became ill. The visa process meant that for eighteen months I would not be allowed to leave the country. But I could not accept not being with my mother when she died.
Years before, James envisaged a right-wing America replete with guns. That’s not a country he could live in, so he took up Irish citizenship just in case. Britain offered a more lenient policy on gay partners – so James gave up everything he knew to follow me to the UK and start again.
James, was this a difficult move? As a lawyer, was it difficult to find your way in a foreign legal system – the switch to common law, the divide between solicitors and barristers and so on?
James K. Thornton:
The line about the UK and US being two countries divided by a common language is true of the legal systems too. To my eyes, the England and Wales legal system was encrusted. When organisms evolve, much by way of earlier adaptations remains in the DNA, but the body evolves to change shape. It’s not so neat in the legal system here. There are periodic reforms, but instead of the law evolving fully to represent a new adaptation, you can get extra layers added on, with the prior layers still there.
I was surprised when I first got here that English lawyers said, in response to most of my questions, ‘that is very complicated’. I don’t remember an American lawyer ever saying that. American lawyers tell you how to solve problems, while English lawyers tell you how complex the problem is.
Then there is the lack of a written constitution. English lawyers told me that it was far more sophisticated to have an unwritten constitution. But all this means is that what is constitutional is what we’ve done before. There is no clear understanding of rights. Few countries in the world leave their citizens exposed in this way.
Then there is the doctrine that the sovereign can do no wrong. So English courts have a deep reluctance to order the government to comply with the law. When we got an injuction from the UK Supreme Court ordering the government to comply with the Clean Air Act, it was only the second injunction the Supreme Court had written. So in these basic ways, I discovered that part of the job here in the UK is helping the legal system evolve.
Becoming a lawyer in the system of England and Wales was a fascinating walk into history, but often a backwards walk. In the US, I was able to go to court and win the cases I designed. Here I’m not allowed to speak in court, since I couldn’t become a barrister and also set up ClientEarth, due to restrictions on what a barrister can do. If you grew up in a legal system that has moved beyond this divide, one that lets you move straight from concept to victory, it can be frustrating to have to go through the extra sets of fences, gates and hurdles.
Can you tell me about the state of environmental law in the UK when you arrived?
The corpus of law protecting the environment in the UK is mostly shared with the rest of the EU countries. It is a great achievement, in my view the most significant achievement of contemporary European culture.
So the problem when I arrived was not a lack of laws, but a lack of enforcement. Scholars throughout the EU talked about an ‘enforcement deficit’. There was no robust culture of citizens enforcing the law when national governments and the EU itself failed to enforce it. There was often a feeling that politicians went to Brussels, agreed good laws, took credit for setting up environmental protection, but then didn’t expect to have to deliver. There is an Italian proverb which sums up this attitude: One goes to Brussels to make the law, one comes home to find a way around it.
One of the problems in citizen enforcement was a set of rules that made it hard to get into court in the UK, Germany and at the level of the EU. For Germany and the EU, legal standing – the right to get into court to make your case – was lacking. In the UK, you could get into court but there were punitive cost rules. An old barrister joke goes, ‘Her Majesty’s courts are open to everyone – just like the Ritz.’ You could be subject to hundreds of thousands in costs if you brought a case in and lost, so in the UK there were few cases.
The first thing we did when we opened our doors was to bring an action against the UK, Germany and the EU in an international tribunal, arguing that they were violating a treaty on access to justice. We won those cases. That helped shift things, and cost caps were created in the UK for environmental cases. It became possible for citizen groups to go to court. The government, however, has just slipped in new rules that erode the cost caps. We’ve recently had to take them to the High Court, joined by the RSPB and Friends of the Earth, to make the argument that going back to unlimited costs is an illegal restriction on citizen access to justice. An argument we had already won. One needs to ask why the government is so afraid to show up in court when citizens need justice.
ClientEarth has had great success since you founded it in 2008. It’s won a series of high-profile cases, received several awards and has been covered widely in the news. Can you tell me about the beginnings of the firm – the first few years of practice, and the challenges of importing a culture of legal activism to the UK?
Well it was something of a cultural shift. At ClientEarth we act like an international law firm, but we are organised as a charity.
My way of practising has environmental lawyers first becoming fluent in the science, then creating policy, helping the legislature draft laws, ensuring that agencies implement the laws, and finally going to court to enforce those laws. This is a strategic enterprise from start to finish, like playing chess and looking dozens of moves ahead.
So I see law as a strategic problem-solving activity. You map out where you hope society will go in protecting human health and the environment, and imagine all the steps that need to be traversed to get there. Then you reconfigure the landscape so that people can take those steps easily. You collaborate broadly to do this.
Law is a creative enterprise when approached this way. As creative in its own way as science or the arts. This strategic, problem-solving way of using law for the environment was a new beast when unleashed in Europe. The great extra power it gives to the whole environmental community is now appreciated.
This is a cultural shift in the use of law in the EU. It is about being activist lawyers, rather than passive lawyers who serve activists. One of my trustees was an investment banker in London. He said there was a similar cultural divide in banking – in London, bankers would do the deals, and lawyers worked for them. In New York, lawyers did the deals and bankers worked for them.
Five years ago, my team asked me where I wanted us to be by 2017. I said that we would not be the richest environmental group, or the biggest or the most famous. Instead I wanted us to be the most effective. Just this year, the Environmental Grantmakers Association did a poll of the CEOs of UK environmental groups to ask which group was the most effective. I am extremely proud that they named ClientEarth.
Client Earth is a book about the environment and conservation, about public interest environmental law – and, in part, about the gap between policymaking and enforcement. Can you tell me a little about the importance (and difficulties) of active enforcement in the EU – and perhaps more particularly here in the UK?
The lack of enforcement of environmental laws throughout Europe has been a real issue. What needs to be established is a culture of complying with the law – and that applies to both companies and governments.
If you prohibit an activity but then don’t enforce the law, you in effect authorize the conduct you sought to prohibit. So enforcement is crucial. You see countries around the world differing in their approach to enforcement. In the US, enforcement has been more effective than in Europe. In China it has been much worse, but that is rapidly changing. One of the most interesting things in global culture is that China is rapidly moving to clean up its environment, which it appreciates is in bad shape. It is enlisting citizens in the job. A new law lets citizens sue polluting companies. We have been advising on ways to make the law effective. And it’s working. In the last two years nearly 200 enforcement cases have been brought by Chinese NGOs, and they are being decided for the plaintiffs.
In the UK and the other northern European countries, the government is better than in the southern countries at enforcing the laws against companies. Though the example of Volkswagen and other car companies being allowed to get away with violating emissions laws remains a scandal. The UK should have started the action against Volkswagen. Sadly this didn’t happen – it wasn’t until the US Environmental Protection Agency inspected Volkswagen’s diesel engines when they wanted to sell them in the States that action was taken.
Where the UK and others are bad is the government’s own attitude to complying with the law. Air pollution is a good example. Every year you have 40,000 people in the UK dying early as a result of air pollution. If you had that many deaths from cholera, the government would bother to care.
Could you tell me about ClientEarth’s continuing action against the government on air pollution?
What has surprised me about taking the UK government to court over air pollution is the government’s adamant refusal to comply with the law. I have never seen such determined, willful unlawfulness. You expect it from criminals, not a country’s elected government. It is the behaviour of a government that believes it is above the rule of law.
The government’s numbers show the disastrous effect on human life and health – 40,000 early deaths every year. The government’s calculations show this damage costs the economy £27 billion pounds a year. And yet the government is deliberately scoffing at the law and the power of the Supreme Court to enforce the law.
We are back in court for the fourth time soon. We will get the government to stop breaching the law and clean up the air. There is a great coalition of citizens building, and we are working with them. They are demanding clean air for their children. The suffering must stop. We will get there.
What will happen to environmental law in the UK after Brexit?
The thing to worry about is the erosion of forty years of law crafted to protect the environment and human health, laws that we cooperated in writing with all our partner countries across Europe.
When you see the extreme bad faith of the government when it comes to clean air, it is difficult to accept their promises to bring all the EU environmental laws over into UK law fully functional. The news today is an announcement to leave the treaties that regulate fishing rights between the UK and the rest of the EU.
A main tactic to watch out for is the way the EU laws are made resident in the UK system. What you want is for all the laws to be made what is called primary legislation. What you don’t want is for key provisions of the law to be put into secondary legislation. Primary legislation has to be debated in Parliament. Secondary legislation may be changed with little or no scrutiny. So imagine the mischief of putting the air pollutant limits – the numbers that determine how clean the air should be – into secondary legislation. Then the government could change them with little trouble. But if the numbers were enshrined in primary legislation, it would be different. Imagine standing up in Parliament and saying children in the UK should be breathing more toxic air, imagine saying 40,000 early deaths a year is not enough, we need more. That legislators should be forced to do so, if they wish to make these kinds of pernicious change, is the kind of protection we need.
Another worry is enforcement. Once we are out of the EU, it won’t be able to hold the UK to account for breaking this law. At the same time, the UK is making it much harder for citizens to bring their own government to court by changing the cost rules, as I said above. So you get the government putting in place a system where no one can challenge it when it breaks the law. Given the government’s record, this should make us all worry.
In the book you mention that the Paris Agreement needs to function as a global framework. What is your take on President Donald Trump’s announcement that the US will withdraw from the Paris climate agreement?
Republicans have said for years that the federal government is irrelevant. In a lovely irony, Trump is proving them right. Thirty American states have said they will comply with the Paris Agreement, and enormous numbers of mayors and companies as well. California on its own is the sixth largest economy in the world. When you add New York and the other twenty-eight states, most of the American economy will be following the Paris Agreement. The governor of California flew to Beijing the day after Trump’s announcement to cut a bilateral deal on climate.
I was recently in Paris with President Emmanuel Macron and many others to launch a new Global Pact for the Environment, an effort to take the next step after signing the Paris climate agreement. Many of the speakers, including the President of France, said that Trump’s announcement has strengthened global resolve. Mostly, what Trump’s move will accomplish is harming the position of the United States. It’s worth noting that because of the way the Paris Agreement works, the earliest date the US can actually withdraw is 4 November 2020, one day after the next presidential election.
Why did you two decide to write this book?
Client Earth took more than four years to write. For a book to be worth so large a slice of my life, it has to teach me something. The lessons I learn have to be worth handing on. We only have one planet, we’re screwing it up, and there’s no more urgent topic. That fact set much of the logic in place. James has always been committed to the power of the story in helping people understand his work. For me, the way to truly understand something is to fit it into a coherent narrative.
The book became my quest to discover the various elements of story and put them in place. It took me across the world, into the hearts of government and the homes of the fabulously rich, and into the lives of activists who are committed to causes that mean the world to them. James, meanwhile, was pushing ClientEarth into new territory every day. For him, the book became the chance to record this period of dynamic growth and change.
We also enjoyed a different challenge. There are some glorious exceptions, but most environmental books are worthy and depressing. We wanted to deliver something different. Client Earth doesn’t just give the background to problems; it offers solutions. It is an evidence-based narrative of hope.
Martin, you’re a historian and a biographer, and your sections are written, in part, as a biography of James. What is it like turning that style of writing on someone you know so intimately?
The main biographical elements were of periods before I knew James. Who was this youngster in love with nature and not the law, but who figured the law was the only way to save what he loved? I knew bare details: President Reagan decided to gut the Environmental Protection Agency (EPA) of all its effectiveness and so James, as a fledgling lawyer, adopted its work. Single-handedly, he took on sixty Federal Court cases to enforce clean water regulations, and won every one. By the time he had shamed the EPA back into action, he had won more than a hundred. It’s a mythical David and Goliath tale. Could it be true? For me, the process was the transition from enjoying a tale to investigating it.
Rigorous research established the story was just as James had told it to me. The tale of saving Chesapeake Bay is worthy of a Hollywood movie, so it was fun not just to verify it but to find a way to tell it myself. Stories like this are a gift to a writer.
Writing about the period that includes the twenty-six years we’ve been together, the challenge was more of an intellectual one. I’ve seen the extent to which James is a strategic thinker. Something he’ll mention over breakfast, that’s been simmering in his head for months, comes into effect years later. So while he personally isn’t always the major player in later chapters in the book, that’s because he has built a whole team to help do this work. The fun for me is in revealing how the play of his mind works itself out. It’s a brilliant mind. It’s taken me the length of this book to appreciate the subtlety of it all.
Can you tell me about the process of co-authoring this book? How did you settle on the balance of the voices – did the idea of a sequence of chapters in your respective voices come naturally, or did it take some wrangling?
Patrick Walsh, this book’s wonder agent, took on a tough nut to sell when I approached him with the idea. He stood more of a chance if James’s name was attached to it, so we decided we had to do it together. My narrative voice was pretty much set at that point, and so it was a case of finding the best way for James to complement it. James is a fine essayist and has a natural authority on law and the environment, where I am a voyeur. So I took on the storytelling and James interleaved my chapters with pieces of commentary and reflection. I don’t know any co-authorship like it, but the process was quite organic. We always dive into each other’s work in any case, and edit with abandon, so our voices meld. This is our stab at being the Gilbert & George of the environment!
Can we end on a simple question? What’s the most effective thing that a layman can do to help protect the environment?
I’m a layman. The best I could do was to write this book, and so I reckon the best place for others to start out is to read it. It’s an antidote to despair. I know that because it worked for me.
The book took four years to write. When I started there was little actual achievement to write about. Now there’s scarcely a day that doesn’t bring some positive news out of ClientEarth. I thought work to prevent the environmental devastation of Africa was hopeless because of corruption, and then I met with African activists empowered by learning how to use the law. I stood with a farmer’s wife in Poland and looked out over countryside that would have been swallowed by a coal-fired power station, if lawyers hadn’t decided to team up with the farmers. Even so, I thought all this was useless because China was building a coal-fired power station every week. And then James kept returning from Beijing with astounding news of how China had decided to build an ecological civilization based on the rule of law.
I had started to look away from pitiful situations like the loss of species and habitat, because I thought nothing could be done. When I learned how something could be done, and how some people were doing it, I found the courage to face those situations again.
Environmental laws are young and they are vulnerable. They wither without attention. We layfolk need to understand them, to see where the law needs strengthening, and where it is imperilled, and then we need to lobby as citizens and as activist shareholders to ensure those laws are respected and enforced. Environmental concerns need to assert themselves at the top of our political agendas. Also, wherever possible, those who are older should cede power to the young. They have huge capacity for hope, and hope plus power can do a lot.
I support what Martin has said. Pick something you care about. It may be clean air for your kids. It may be the forest that the government wants to chop down. Learn about it. Demand that the government do the right thing. Join with others who care and work with them. Damage to the environment and people’s health happens because vested interests work behind closed doors. Care passionately and act together. We can make all the difference. We can create an ecological civilization. We can make the world the world we want to live in and see our grandchildren inherit.