Igniting the Green Revolution: some brain storming from environmental lawyers
21 April 2018
On Friday 6th April, Public Interest Environmental Law (PIEL) UK hosted their 12th annual conference. The student-led association, which was founded in 2007, is inspired by the US conference of the same name which has attracted ever-growing numbers of delegates since it began in 1983.
This year’s conference boasted three panels packed with academics and practitioners, and a keynote address from Richard Macrory CBE. In light of the movement’s snowballing strength, it seemed apposite that this year’s conference be themed ‘Environmental Litigation: Has the Green Revolution Reached the Courts?’
In fact, speakers ranged beyond this brief, partly due to recognising that it would take the coalescence of strategic litigation with procedural reform and public interest to truly ignite the ‘green revolution.’
This theme persisted from opening speaker Dr. Emily Barrit’s call to think creatively about moving beyond a private-rights-based approach to environmental justice, through to closing speaker Gillian Lobo of Client Earth, who concluded a fantastic summary of Client Earth’s three successful High Court challenges to the government’s air quality plans by reminding attendees:
the campaign was equally important to us…[it] created the social atmosphere for these cases to succeed,
and created a legacy. The campaign, she said,
changes how people think, and what they require of their MPs and what they require of vehicle manufacturers.
In other words, the green revolution doesn’t just need litigation, it needs people to buy into its message. Richard Macrory CBE, who gave a spirited history of the developments leading to the birth of the UK’s environmental tribunal in 2010, and unveiled his four-point plan for future procedural reform, spoke too of the need for a social ‘ignition event.’ Change necessitates serious analysis of existing problems, but it also often requires a big scandal to strike the match: Macrory analysed the early 2000s as marked by a lot of analysis, but crucially, no scandal.
Yet importantly, he remarked, there is no use in an ignition event if the serious analysis has not already been done. This leads, among other harm, to the danger of bad laws being pushed through suddenly – a suggestion which recalled Naomi Klein’s ‘shock doctrine’ theory. Thankfully, there was plenty of serious analysis on offer, encompassing not only procedural court reform, but also strategies for successful litigation. Dr. Veerle Heyvaert spoke about the ‘obstacle course’ of tort-based litigation, a frequent David and Goliath scenario with a poor track record, yet concluded that, surprisingly, all is not quiet on the tort front. Dr. Heyvaert detailed a wave of new cases: Lliuya v RWE, San Mateo & Marin county lawsuits, San Francisco & Oaklands lawsuits, Milieudefensie v Shell, and finally Urgenda, which we were reminded was won on a tort basis. She observed that, as climate change is legally disruptive, tort’s past track record may not be a good predictor for the future.
Appropriately, later in the day Leigh Day gave a more empirical presentation describing ongoing tort litigation, designed not as a comprehensive guide to environmental litigation, but a toolkit of successful strategies. Speakers tackled the problems presented by attempting to distil systemic failures by multinationals into specific legal arguments, and urged attendees to think creatively to establish a duty of care, including making use of public statements. Elsewhere, Client Earth detailed their judicial review actions against the UK Government.
However, in keeping with the broad-church approach of the conference, analysis was not confined to the domestic sphere. Dr. Emily Barrit urged us to see the value of procedural rights as elevated by the Aarhus Convention: she observed that some of our oldest rights are procedural, and that they are not deprived of normative purpose simply because they are not substantive. Dr. Virginie Rouas presented environmental success stories from French litigation, and Dr. Gitanjali Gil provided a fascinating counterpoint to the keynote address on England and Wales’ environment tribunal system, introducing us to the radically different role of India’s more interventionist judiciary.
In particular, she spoke of India’s National Green Tribunal, where judging panels are comprised of a 50:50 split of judges and scientists, placed on an equal footing. The NGT, we were told, takes a highly liberal approach to standing, which is coupled with low costs, and which is moving towards an increasingly collaborative and inquisitorial model. Whilst there were hiccups when it came to implementing the infrastructure in full, India’s judiciary remained ‘strong, imaginative, innovative and pro-active,’ and in Dr. Gil’s opinion provided an entirely appropriate template for developing countries, which faced their own set of socio-ecological problems demanding innovative solutions. The pro-active approach of the courts in the face of a growing population, poor regulation and a corrupt executive among other factors, reflected values of realism, guardianship, welfare and social responsibility.
This, really, was the spirit of the conference: thinking creatively, with whichever tools one has, to embody these values in law and policy in a way which encourages the development of the green revolution. We were told that two things were necessary, and they seemed on offer in spades: serious analysis, and the commitment to the public spirit necessary to ignite the green revolution.
A full list of speakers and topics from the conference can be found here.