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The lawyers taking polluters to court: “No company is above the law”

The CEO of ClientEarth on how legal action is breaking political stasis on the climate.

By India Bourke

In October 1769, as the British explorer James Cook first floated into Tūranganui River in New Zealand, the astonished local Māori sent armed men to meet the boat in what was probably a ceremonial challenge. Thinking they were under attack, Cook’s crew opened fire. Nine Māori were killed in consequent clashes, setting the stage for a later European colonisation that devastated indigenous populations’ culture, language and land.

Two-hundred and fifty years later, in 2019, Laura Clarke, the British ambassador to New Zealand at the time, was tasked with commemorating the event. One of the youngest ambassadors the country has had, Clarke insisted that her team focus on acknowledging past wrongs and issued an official expression of regret for the killings. “I used to talk about it as ‘seeing the view from the beach’,” Clarke, 44, said when we met earlier this year. “What was it like being Māori on the beach and seeing the ship arrive, as opposed to the view from the ship?”

Clarke is now chief executive of the environmental law charity ClientEarth, whose mission is to protect life on earth by wielding, clarifying or changing the law. It’s a somewhat different arena for her diplomatic skills. Yet she is still highlighting competing perspectives on matters of existential weight, and they are growing in number. Since its founding in 2008, ClientEarth has expanded to employ over 250 people across three continents. Not unrelatedly, global litigation on climate change has soared in this same time period; the Grantham Research Institute on climate change at the London School of Economics has recorded a doubling of the cumulative number of cases since 2015.

Cases supported by ClientEarth are thus shaping the decision-making of governments and corporations around the world. Last year, for example, when the UN’s Human Rights Committee agreed with a complaint brought by Torres Strait islanders against the Australian government, it marked the first time a state was held responsible for its emissions under international human rights law. “Over the past two decades, ClientEarth has proved a powerful new legal ally for people and the planet,” Hugh Knowles, co-executive director of the environmental charity Friends of the Earth, said.

The ever-tactful Clarke is keen to stress that change can come as much from a co-operative approach as from conflict. And when I asked how it had felt to represent a Conservative UK government with a lacklustre recent record on climate policy, Clarke was initially hesitant. “You can take the woman out of diplomacy, but you probably can’t take diplomacy out of the woman,” she responded. “There are all sorts of different ways you can effect change.”

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But underneath Clarke’s poise, there was also a clear sense of a frustration with the slow-moving cogs of power. “I definitely got to a point where I felt like I’d have more impact outside of government,” she added. Politics too often fails to serve the long-term interest, and electoral cycles, political factions, backbench rebellions and party donors all “drag against the radical change that we need and that the times demand”.

Legal action can be a means of breaking through political stasis. Last summer, for instance, ClientEarth, Friends of the Earth and the Good Law Project jointly alleged that the UK government’s strategy for reaching its net-zero emissions targets was inadequate. They argued that by failing to show how its policies to decarbonise the economy – such as expanding renewable energy and making buildings more environmentally friendly – would sufficiently reduce emissions, the government was in breach of the Climate Change Act. The High Court agreed (on the UK’s hottest day on record) and the government had to revise its plans.

Rishi Sunak’s new administration released its updated strategy in March, and both ClientEarth and Friends of the Earth say they now need time to assess whether or not to mount a further challenge. Friends of the Earth has also written to the government asking for more information about how the new plan assesses its level of risk.

[See also: The health risks of air pollution]

Litigation may also be a means of constraining polluters in the private sector. In February ClientEarth issued proceedings against Shell’s board of directors, whom they alleged are in breach of their duty to shareholders by failing to sufficiently prepare the oil giant for the net-zero transition, as mandated by the Paris climate accord. Having acquired shares in the company since 2016 for the purposes of obtaining investor information and voting rights, ClientEarth has filed a “derivative action” claim against the board on behalf of the company itself.

The charity has described the move as a world first. But on Friday 13 May (after our interview took place), a High Court judge dismissed their claim against Shell, citing the law’s respect for “the autonomy of the decision making of the Directors on commercial issues”. ClientEarth has a right to appeal and are now reviewing the terms of the judgement.

More broadly,  can ClientEarth’s legal actions hope to make a difference against a company that is also currently appealing against a legal decision regarding its emissions reduction plans? In 2021 a court in the Netherlands ruled that Shell should reduce its global net carbon emissions by 45 per cent by 2030 from its 2019 levels. ClientEarth claims that Shell’s emissions are so far on course to fall by just 5 per cent.

“No company should behave as though it’s above the law,” Clarke said. “This is a commercial case. We’re stepping into the shoes of the company and saying to Shell’s board of directors: ‘You don’t have an adequate climate transition plan, you’re not thinking about the risks of the transition, and if you keep investing in fossil fuel infrastructure, you’re going to end up having stranded assets.’ ”

Clarke believes that ClientEarth’s role is to “shine a light” when gaps emerge between what organisations say and do. In 2019 the charity filed a complaint with the Organisation for Economic Co-operation and Development alleging a BP advertising campaign misled the public about the extent of its low carbon investment (over 96 per cent of the company’s annual spending still went on oil and gas, according to ClientEarth). Today, among other cases, the charity is challenging the EU executive on its decision to classify fossil gas as a “sustainable” fuel and has begun the first legal challenge against the grain trader Cargill over alleged abuses in its soya supply chain in the Brazilian rainforest.

And even as Clarke’s emphasis repeatedly returns to building bridges – “the older I get, the more I realise what a messy, imperfect world it is” – this conciliatory sentiment is tempered with a firmness that some lines must not be crossed. “There’s no way you can say that fossil fuels are the safer bet,” she says in relation to the Shell case. “It is fossil fuels that have fuelled Putin’s war against Ukraine and that have then in turn driven up energy prices”.

ClientEarth’s American founder, James Thornton, once told the New Statesman that “the right law, properly used, can level the playing field”. That aspiration is now in Clarke’s hands. And while her twelve-year-old daughter may be the budding movie star of the family (featuring prominently in Evil Dead Rise, released last month), Clarke may yet prove one of environmental law’s leading ladies.

 This piece was amended on Tuesday 16 May to include mention of the Court ruling in favour of Shell on Friday 13 May.

[See also: Pollution is a public health menace – we have an obligation to intervene]

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